Filed 8/20/14 P. v. Vera CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F066398
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12905691)
                   v.

TONY PEREZ VERA,                                                                         OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Arlan L.
Harrell, Judge.
         Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Leanne Le Mon and Lewis A.
Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Detjen, J. and Franson, J.
      A jury convicted appellant, Tony Perez Vera, of possession of a firearm by a felon
(Pen. Code, § 29800, subd. (a)(1))1 and carrying a loaded firearm (§ 25850, subd. (a)).
On appeal, Vera contends: (1) the court erred in admitting a prior conviction for
impeachment purposes; and (2) the court committed instructional error. We affirm.
                                         FACTS
The Prosecution Case
      The prosecution evidence established that on July 30, 2012, Vincent Graves was
working as a security guard for American A Plus Security. At approximately 8:15 p.m.,
Graves was on patrol at the San Ramon apartment complex in Fresno when he saw Jaime
Reynaga, who was heavily intoxicated, facing and leaning against a wall. Graves
approached Reynaga from Reynaga’s left side and asked if he was alright. When
Reynaga “came off the wall” and turned towards him, Graves noticed Reynaga was
holding a revolver in his right hand by the handle, pointing down. At that moment, Vera
came through a door that leads to a parking garage, stepped between the men with his
back towards Graves, and stated, “No, man, it is just a toy.”2 Vera then took Reynaga
through a gate and both men left.3 Meanwhile, Graves called 911 and gave a description
of both men.4
      Fresno Police Officer James Young heard a dispatch about a man with a gun and
responded to the area. As Officer Young travelled north on Sixth Street, he saw Vera and

1     All further statutory references are to the Penal Code unless otherwise indicated.
2     It appeared to Graves that Vera was attempting to diffuse the situation.
3      Vera testified that Graves approached Reynaga with a gun drawn (see post). The
parties, however, agreed not to ask Graves any questions regarding whether he possessed
a gun because there was an issue regarding Graves’s right to lawfully possess a firearm.
4       Four buildings made up the apartment complex. During cross-examination, when
asked whether anyone was outdoors during his encounter with Reynaga and Vera, Graves
testified that he had encountered some residents on the other side of the first apartment
building. However, after Reynaga and Vera left, he walked through the complex and did
not see anyone on the other side.


                                            2
Reynaga walking south on Sixth Street towards Shaw Avenue, several blocks south of the
apartment complex. After passing them and making a U-turn, Young contacted Vera and
Reynaga with his gun drawn and ordered them to get on the ground. The men became
argumentative and told Officer Young that they had not done anything wrong and for
Young to “get the [expletive] out of [there].” Eventually, however, both men sat down
on the ground, although they continued to be argumentative and yell at the officer.
Officer Young continued to tell the men to lay on the ground and when they finally
complied, other officers arrived and helped handcuff both men.
       A search of Reynaga did not uncover a gun. However, Officer Danny Kim
searched Vera and found a Ruger revolver protruding from his waistband in front of his
stomach.5 He then placed Vera under arrest for possessing the handgun. Vera had a
strong odor of alcohol and his eyes were watery and bloodshot.
       Graves was brought to the scene and identified Vera and Reynaga as the two men
he encountered earlier at the apartment complex.
The Defense Case
       On July 30, 2012, at approximately 7:30 p.m., Vera took a bus to Reynaga’s
apartment and found him outside of the apartment with two other people, heavily
intoxicated. Reynaga told Vera to wait and walked away. After hearing yelling that
appeared to be coming from the parking lot, Vera went to investigate and saw Reynaga
with a gun with his finger on the trigger, leaning against a wall, and a security guard
(Graves) pointing a gun at Reynaga. In an attempt to calm things down, Vera got in the
middle of both men. Vera told Graves that the gun was just a toy, and he put his arm
around Reynaga and walked away with him in order to extricate Reynaga from a
confrontation that involved two guns. Vera led Reynaga south on Sixth Street intending
to take Reynaga to Vera’s house. On the way, Vera was able to convince Reynaga to


5      The gun had three live rounds and did not have a safety.


                                             3
give him the gun and Vera placed it in his waistband. At that point, Vera continued
walking with Reynaga, but no longer assisted him. He then saw a patrol car pass them
and make a U-turn, but he did not attempt to flag down the patrol car. After the patrol car
stopped, an officer exited the car and approached Vera and Reynaga with his gun drawn
and pointed at them. Vera admitted that he and Reynaga yelled at the officer and that he
repeatedly yelled that he had not done anything wrong. However, he denied telling any
of the officers to get the “[expletive]” out of there. Vera did not tell the officer he had a
gun on him because he knew the officer was going to see the gun anyway and Vera did
not want him or anyone else to get shot.
       Vera also testified that in June 2010, when he was 18 years old, he was convicted
of felony possession of brass knuckles.
                                       DISCUSSION
Impeachment with the Prior Conviction
       Prior to the taking of testimony, the prosecutor moved in limine for the court to
allow him to impeach Vera with his prior conviction for possession of a deadly weapon,
i.e., brass knuckles. The court granted the motion over Vera’s objection. Vera contends
the court erred in granting the prosecutor’s motion because possession of brass knuckles
does not involve violence, menace, or threats and, thus, is not a crime of moral turpitude.
We disagree.

              “Subject to the trial court’s discretion under Evidence Code section
       352, California Constitution, article I, section 28, subdivision (f),
       ‘authorizes the use of any felony conviction which necessarily involves
       moral turpitude, even if the immoral trait is one other than dishonesty. On
       the other hand, subdivision (d), as well as due process, forbids the use of
       convictions of felonies which do not necessarily involve moral turpitude.’
       [Citation.] Thus a ‘prior conviction should only be admissible for
       impeachment if the least adjudicated elements of the conviction necessarily
       involve moral turpitude.’ [Citation.] Crimes involve moral turpitude when
       they reveal dishonesty, a ‘“general readiness to do evil,”’ ‘“bad character,”’
       or ‘moral depravity.’ [Citation.] Such crimes involve an act of baseness,
       vileness, or depravity in the private and social duties which a person owes
       to others or to society in general, contrary to the accepted and customary

                                              4
       rule of right and duty between people.” (People v. Gabriel (2012) 206
       Cal.App.4th 450, 456 (Gabriel).)

               “In [People v.] Garrett [(1987) 195 Cal.App.3d 795], the court held
       that the possession of an unregistered firearm was a crime of moral
       turpitude; the defendant had been convicted of a federal crime outlawing
       the possession of unregistered weapons of a nature similar to the weapons
       enumerated in section 12020,[6] which ‘outlaws a class of instruments
       normally used only for criminal purposes. [Citation.]’ [Citation.] The
       mere possession of such weapons indicates a readiness to do evil.”
       (Gabriel, supra, 206 Cal.App.4th at p. 457, italics added.)
       In Gabriel, the court held that the defendant’s possession of an assault firearm was
a crime of moral turpitude. (Gabriel, supra, 206 Cal.App.4th at p. 458.) In so holding,
the court stated, “Just as possession of an unregistered firearm is a crime of moral
turpitude because such weapons are normally used for criminal purposes, assault firearms
are also typically used to commit crimes, and as the Legislature has outlined, cause
greater harm to the public than general firearms, and thus possession of same should be
considered a crime of moral turpitude.” (Ibid.)
       Here, Vera possessed brass knuckles, a weapon also included in the class of
weapons enumerated in former section 12020 that are normally used only for criminal
purposes. Thus, as in People v. Garrett, supra, 195 Cal.App.3d 795 (Garrett) and
Gabriel, mere possession of brass knuckles is a crime of moral turpitude because it
evinces a willingness to do evil.
       Vera contends possession of brass knuckles is not a crime of moral turpitude
because they are far less dangerous than the firearms involved in Gabriel or Garrett and
they can be used for noncriminal purposes such as tenderizing beef or as novelties for
displaying. However, in each of those cases, the salient reason for the court’s ruling was
that the firearm involved in each case was typically used for criminal purposes and not
the degree of danger inherent in possessing each weapon. Further, although undoubtedly

6     Section 12020, subdivision (a) (former section 12020), repealed by Stats. 2010,
chapter 711, section 4, operative January 1, 2012, and reenacted as section 16920.


                                             5
many illegal weapons can be used for noncriminal purposes and certainly most, if not all,
can be displayed as novelties, this does not preclude the use of convictions for possessing
these weapons for impeachment purposes. As noted by the court in People v. Thomas
(1988) 206 Cal. App.3d 689, “to preclude the use of a prior conviction for the purpose of
impeachment if there is any conceivable set of facts under which the offense could have
been committed free of moral blame would mean that no prior conviction could ever be
used for impeachment.” (Id. at p. 698.) Thus, we conclude that the court did not err
when it allowed the prosecutor to impeach Vera with his prior conviction for possessing
brass knuckles.
The Alleged Instructional Error
       During the trial, the court denied defense counsel’s request to charge the jury on
the defense of necessity as embodied in CALCRIM No. 3403.7 Vera contends the court
erred in doing so because there was substantial evidence that supported charging the jury
with this instruction. We disagree.
       In a criminal trial, the court must give an instruction requested by a party if the
instruction correctly states the law and relates to a material question upon which there is
evidence substantial enough to merit consideration. (People v. Avena (1996) 13 Cal.4th


7      CALCRIM 3403 provides: “The defendant is not guilty of <insert crime[s]> if
(he/she) acted because of legal necessity. [¶] In order to establish this defense, the
defendant must prove that: [¶] 1. (He/She) acted in an emergency to prevent a
significant bodily harm or evil to (himself/herself/ [or] someone else); [¶] 2. (He/She)
had no adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater
danger than the one avoided; [¶] 4. When the defendant acted, (he/she) actually
believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A
reasonable person would also have believed that the act was necessary under the
circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the
emergency. [¶] The defendant has the burden of proving this defense by a
preponderance of the evidence. This is a different standard of proof than proof beyond a
reasonable doubt. To meet the burden of proof by a preponderance of the evidence, the
defendant must prove that it is more likely than not that each of the six listed items is
true.

                                              6
394, 424.) A trial court is not required to instruct on theories that lack substantial
evidentiary support. (People v. Miceli (2002) 104 Cal.App.4th 256, 267.) The defendant
has the burden of proving the defense of necessity by a preponderance of the evidence.
(People v. Heath (1989) 207 Cal.App.3d 892, 901 (Heath).)
       In order to “justify an instruction on the defense of necessity, there must be
evidence sufficient to establish that defendant violated the law (1) to prevent a significant
evil, (2) with no adequate alternative, (3) without creating a greater danger than the one
avoided, (4) with a good faith belief in the necessity, (5) with such belief being
objectively reasonable, and (6) under circumstances in which he did not substantially
contribute to the emergency.” (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
“Necessity does not negate any element of the crime, but represents a public policy
decision not to punish such an individual despite proof of the crime.” (Heath, supra, 207
Cal.App.3d at p. 901.)
       The defense of necessity, in contrast to the defense of duress, has traditionally
covered situations where physical forces beyond the defendant’s control rendered illegal
conduct the lesser of two evils. (Heath, supra, 207 Cal.App.3d at p. 899.) “The defense
of necessity generally recognizes that ‘“the harm or evil sought to be avoided by [the
defendant’s] conduct is greater than that sought to be prevented by the law defining the
offense charged.”’” (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 100 (Coffman
and Marlow), brackets in original.)
       The necessity defense is available to a defendant if the actions he or she intended
to engage in, and did engage in, were unlawful. (Coffman and Marlow, supra, 34 Cal.4th
at p. 100.) The situation presented to the defendant must be of an emergency nature,
threatening physical harm, and lacking an alternative legal course of action. (People v.
Weber (1984) 162 Cal.App.3d Supp. 1, 5.) The standard of prejudice for failure to
instruct on an affirmative defense has not yet been defined. (People v. Salas (2006) 37
Cal.4th 967, 984.)


                                              7
       Vera focuses his arguments on the alleged necessity for him to intervene when
Graves confronted Reynaga at the apartment complex. The undisputed facts, however,
showed that the unlawful possession of the gun by Vera occurred when he took
possession of the gun from Reynaga as they walked down Sixth Street toward Shaw
Avenue. However, there was no evidence that as Reynaga walked with Vera he acted in
an aggressive or threatening manner or that he might use the gun against anyone,
including Vera. Thus, there was no evidence of an emergency at that time that made it
necessary for Vera to take possession of the gun from Reynaga.
       Further, Vera had the opportunity to tell Officer Young that he had a gun and to
give it to him when the officer first ordered him and Reynaga to get on the ground.
Consequently, at that point any “necessity” for Vera to possess the firearm in order to
“safely” dispose of it dissipated and Vera’s continued possession of the revolver, until
another officer took the gun from Vera’s waistband, was unlawful. (Cf. CALJIC No.
12.50 [“A person previously convicted of a felony does not violate [section] 12021 ... by
being in possession of a firearm if: [¶] … [¶] ... possession of such firearm was
temporary and for a period no longer than that in which the necessity or apparent
necessity to use it in self-defense continued; ...” italics added].) In either case, there was
no factual basis for the court to charge the jury with the defense of necessity with respect
to either of the two charges Vera was convicted of.
       In any event, even if the court erred in failing to charge the jury with the necessity
defense, the error was harmless beyond a reasonable doubt for several reasons. First,
as noted above, there was no emergency when Vera took the gun from Reynaga.
       Second, by removing Reynaga from the scene and not allowing Graves to detain
and disarm him, Vera needlessly and recklessly created the “necessity” that resulted in
him taking possession of the gun from Reynaga. Graves was performing his duties as a
security guard when he encountered an armed and inebriated Reynaga. Further, Graves
had the advantage over Reynaga because while Graves had his gun pointing at him,


                                               8
Reynaga only held his gun by the handle, at his side, pointing down. At that point,
Reynaga would have been forced to turn over the gun or face the prospect of serious
injury. In either case, the danger to innocent parties was nonexistent or minimal because
there were no bystanders in the immediate vicinity at the time. In contrast, Vera’s
intervention took the advantage away from Graves and could have resulted in serious
injury to any of the three men by triggering a fire fight. Thus, there was no need for Vera
to remove Reynaga from the scene, and his unjustified conduct in doing so created the
“necessity” that he claims permitted him to take possession of Reynaga’s revolver.
       Third, Vera’s conduct belies the notion that in taking the gun away from Reynaga,
he was motivated by a good faith belief that it was necessary to do so. When Vera
managed to convince Reynaga to give him the gun, he made no effort to turn it over to
law enforcement, to Graves, or some other responsible adult. Even though he saw
Officer Young’s patrol car approaching him and Reynaga, he made no attempt to flag
down the officer. Further, when first confronted by Young, instead of informing him he
had a firearm, which he knew he was not entitled to possess because of his status as a
felon, he joined Reynaga in repeatedly yelling at the officer that they had done nothing
wrong and telling him to get the “[expletive]” out of there.
       Moreover, Vera’s entire conduct in this matter strongly suggests that his motive
for whisking Reynaga away from the confrontation with Graves was simply to help a
friend by keeping him from being arrested. Given these circumstances, it was extremely
unlikely that the jury would not have found Vera guilty of the two charges he was
convicted of, even if the court had charged the jury on necessity as a defense. Thus, we
conclude that any error in the court’s failure to charge the jury on necessity as a defense
was harmless beyond a reasonable doubt.


                                      DISPOSITION
       The judgment is affirmed.


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