California Court of Appeals, First District, Fifth Division
THE PEOPLE, Plaintiff and Respondent, GREGORY JEFFERSON, Defendant and Appellant.
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Superior Court of Alameda County, No. C170682, Hon. Vernon K. Nakahara, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Thea Greenhalgh, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Catherine A. Rivlin and Hanna Chung, Deputy Attorneys General, for Plaintiff and Respondent.
On January 18, 2012, Officer Anthony Tedesco observed defendant and appellant Gregory Jefferson placing an item-later determined to be a loaded and stolen firearm-under the driver’s seat of a gray Bentley that Jefferson had driven to the location. Jefferson then left that location in another car, as a passenger. At Tedesco’s request, that second car was stopped and Jefferson was found in possession of a second firearm that was legally registered to him. Approximately one year later, Jefferson was observed by a different officer exiting the same gray Bentley and placing a bag in the trunk of that vehicle. A subsequent search revealed a third firearm in that bag, also legally registered to Jefferson.
Based on the stolen firearm concealed in the Bentley, Jefferson was charged with carrying a concealed firearm within a vehicle and carrying a
loaded firearm in public. At trial, the court permitted the prosecution to introduce evidence of Jefferson’s possession of the two legally registered firearms to prove he had control over the charged firearm and to prove his knowledge that firearm was stolen. In the published portion of this opinion, we conclude the court abused its discretion in failing to exclude the registered firearms evidence. The error was harmless, except with respect to the jury’s true findings on special allegations on both counts that Jefferson had reasonable cause to believe the charged firearm was stolen. We reverse the true findings on those special allegations, and affirm in all other respects.
I. Factual and Procedural Background
Jefferson was charged, by information, with carrying a concealed firearm within a vehicle (Pen. Code, § 25400, subd. (a)(1); count one) and carrying a loaded firearm on one’s person in a city (§ 25850, subd. (a); count two). With respect to count one, it was alleged the firearm was stolen and Jefferson knew or had reasonable cause to believe it was stolen. (§ 25400, subd. (c)(2).) It was further alleged the firearm was loaded and not registered to Jefferson. (§ 25400, subd. (c)(6).) With respect to count two, it was alleged that the firearm was stolen and Jefferson knew or had reasonable cause to believe it was stolen (§ 25850, subd. (c)(2)), and that the firearm was not registered to Jefferson (§ 25850, subd. (c)(6)).
At trial, Oakland Police Officer Anthony Tedesco testified that, on January 18, 2012, around 6:00 p.m., he was conducting undercover narcotics surveillance on 64th Avenue Place in Oakland. Using binoculars, Tedesco observed a man later identified as Jefferson drive a gray Bentley to the dead-end street, park about 30 yards away from Tedesco, and remain seated in the car for around 20 minutes before exiting and walking across the yard of a nearby house. As Jefferson approached the front door of the house, Tedesco lost sight of him for a minute or two. During that time, Tedesco heard a door open and close and the sound of a small metal object being dropped on what sounded like sheet metal.
Jefferson came back into view as he returned to the Bentley. At the same time, a green Porsche Cayenne sport utility vehicle drove up the street, made a u-turn, and stopped alongside the Bentley. Jefferson walked up to the Porsche, spoke to its occupants, entered the Porsche for a minute or two, and then returned to the Bentley while carrying something under his shirt. According to Tedesco, Jefferson carried the item “very gingerly, ” as though it were important. Based on his experience and training and the size of the object being carried, Tedesco believed the object was a handgun. Jefferson
opened the Bentley’s driver door, bent down underneath the steering wheel, and appeared to push something under the driver’s seat. Jefferson then walked back to the Porsche, entered the backseat, and the Porsche drove away.
Tedesco reported this activity to nearby uniformed officers and asked those officers to make an investigative stop of the Porsche. Oakland Police Officer Jeffrey Smoak discovered that the Porsche had an expired registration and pulled it over within blocks of 64th Avenue Place. When the car stopped, Smoak approached and asked the driver to roll down the window. When the driver complied, Smoak smelled the fresh odor of marijuana coming from inside the car. Smoak observed that the driver and the passenger behind the driver were men, while the two passengers on the right side of the car were women. When Smoak smelled the marijuana, he also saw that the rear left passenger-later identified as Jefferson-was bent over and moving one hand by his waist. Concerned that Jefferson was armed, Smoak instructed him to put his hands on the seat in front of him. Jefferson complied.
The driver was discovered to be on probation and detained. Jefferson then dropped his hands off the seat in front of him. Smoak asked Jefferson to exit the vehicle and, when Jefferson did so, Smoak saw on the seat where Jefferson had been sitting an ammunition magazine containing eight rounds. Smoak handcuffed Jefferson and conducted a pat search to check for weapons. As Jefferson was pat-searched, a lower receiver for a Glock pistol dropped from his pants. The upper receiver to the pistol, with matching serial numbers, was found in Jefferson’s waistband. The gun was a Glock 27 semiautomatic pistol, which was legally registered to Jefferson. Smoak also found $1,785 in cash on Jefferson, a “fist sized” baggie of marijuana on one of the two female passengers, a small digital scale that had marijuana residue on it, and gallon-sized baggies.
Based on what was found inside the Porsche and Tedesco’s prior observations, Smoak obtained a search warrant for the Bentley. Oakland Police Officer Billy Matthews searched the Bentley. Matthews discovered a loaded nine-millimeter Sig Sauer firearm underneath the floor mat on the driver’s side floorboard. Matthews also found a picture of Jefferson in the glove compartment. Jefferson was arrested. Keys to the Bentley were later recovered from the mailbox of the house Jefferson had approached.
The parties stipulated that the Glock firearm was registered to Jefferson and that the Sig Sauer nine-millimeter pistol was registered to Stanley Toy, a former Daly City police officer. Toy testified that two guns had been stolen from the trunk of his car in 2007, one of which was a nine-millimeter Sig Sauer. Toy recognized the gun that had been ...