Filed 7/12/16 P. v. Silberman CA5

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F070893
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. CRF45224)
                   v.

DUSTIN ZACHARIAH SILBERMAN,                                                              OPINION
         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Tuolumne County. James A.
Boscoe, Judge.
         William Wei Lee, under appointment by the Court of Appeal, for Plaintiff and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-




*        Before Poochigian, Acting P.J., Franson, J. and Peña, J.
       Appellant Dustin Zachariah Silberman appeals his convictions on charges of
possession of a firearm by one with a prior violent offense (Pen. Code, § 29900,
subd. (a)/count 1) and possession of a controlled substance (Health & Saf. Code, § 11350,
subd. (a)/count 3). Appellant contends the trial court prejudicially erred when instructing
the jury at his trial by failing to instruct on a proposed defense and failing to include an
instruction related to expert testimony. For the reasons set forth below, we affirm.
                  FACTUAL AND PROCEDURAL BACKGROUND
       Around 2:00 a.m. on the morning of September 15, 2014, Sonora Police Sergeant
Turu Vanderwiel was flagged down by a citizen who reported two people were on the
back porch of a nearby house that should have been vacant. Sergeant Vanderwiel drove
to the residence to investigate. When he arrived, he encountered two suspects, appellant
and Brandon Jourdan.
       After asking why appellant and Mr. Jourdan were at the property, Sergeant
Vanderwiel inspected the back porch for signs of a break-in. In the course of that search,
Sergeant Vanderwiel located a handgun in plain view, near some furniture. The gun was
loaded, with four rounds in the magazine but none in the chamber. As Sergeant
Vanderwiel worked to retrieve the weapon, he moved a drawer that was in his way. In
doing so, Sergeant Vanderwiel discovered a silver pill bottle that was later found to
contain 1.026 grams of heroin. Further inspection of appellant and Mr. Jourdan’s arms
showed what Sergeant Vanderwiel believed to be fresh venipuncture marks.
       Initially, appellant professed to know nothing of the gun or the drugs. In a later
statement, however, appellant said he discovered the gun while working at the residence,
although appellant gave conflicting accounts on where, claiming to have found the gun
both in the living room and in a box on the back porch. Appellant asserted he hid the gun
under some furniture and admitted to handling the weapon for about five minutes.
Appellant was able to describe the gun, including the fact that it was loaded but had no



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bullet in the chamber, and suggested his finger prints might be found on the top round in
the magazine because he had touched that bullet.
       Appellant testified on his own behalf at trial. On the stand, he provided a different
account of the gun’s origin. Appellant testified the gun belonged to Mr. Jourdan.
Appellant first saw the gun a couple of days before his arrest, when Mr. Jourdan brought
it to the house where appellant was residing. Appellant told Mr. Jourdan to leave at that
time because appellant could not be around firearms. Appellant next saw the gun on the
night of his arrest when Mr. Jourdan produced the gun from a backpack. In this instance,
appellant told Mr. Jourdan he could not have the gun in appellant’s presence before
taking the magazine from Mr. Jourdan and attempting to unload it so he could dispose of
the bullets. Appellant further testified that he never possessed the firearm and, to the
extent of his recollection, never touched that actual handgun.
       With respect to the discovery of the heroin, the parties stipulated to the nature and
amount of the drugs found. At trial, Sergeant Vanderwiel testified to more than 16 years
of experience with drug cases, including cases involving heroin, and more than 35 hours
of formal training in the identification, use, manufacturing, and sales of narcotics. When
asked whether 1.026 grams of heroin was a usable quantity, Sergeant Vanderwiel
responded, “[a]bsolutely,” before going on to discuss the fact that injection was the most
common method of ingestion for heroin. No objections were made and Sergeant
Vanderwiel was neither offered nor qualified as an expert on narcotics. On cross-
examination, appellant’s counsel questioned Sergeant Vanderwiel on whether 1.02 grams
of heroin was an amount consistent with personal use and on how heroin users typically
inject the drug, ultimately confirming that none of the expected paraphernalia for use,
such as needles or cotton balls, were found with the drugs.
       Appellant was also asked questions regarding drug activity on the porch. On
cross-examination, appellant conceded he knew there would likely be drug use on the



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porch that night due to Mr. Jourdan’s stated desire to “get loaded” before they headed to
the back porch.
       During the resolution of jury instruction disputes, appellant objected to the
People’s request to strike the portion of CALCRIM No. 2511 which details the
momentary possession defense to the charge of possession of a firearm by a felon and
requested the instruction be given. Later, after the People’s closing argument, appellant
again requested an instruction on the momentary possession defense, alleging the People
had opened the door to the defense by improperly arguing the law of possession. The
trial court rejected both requests.
       Appellant was ultimately convicted of being a felon in possession of a firearm and
of possessing a controlled substance, but found not guilty of carrying a loaded firearm in
public. This appeal timely followed.
                                       DISCUSSION
       Appellant raises two allegations of instructional error. First, appellant contends
the trial court improperly rejected his request for an instruction on the momentary
possession defense. Second, appellant argues the trial court was required, but failed, to
instruct the jury on the weight to be given expert opinion testimony pursuant to Penal
Code section 1127b. In both instances, appellant states he suffered prejudice from the
lack of proper instructions.
Standard of Review and Applicable Law
       “A trial court is required to give a requested instruction on a defense only if
substantial evidence supports the defense.” (People v. Panah (2005) 35 Cal.4th 395,
484.) Where substantial evidence is lacking, “the court does not err in refusing to give
instructions based on that defense.” (People v. Mayberry (1975) 15 Cal.3d 143, 151.)
On appeal, we “ask only whether the requested instruction was supported by substantial
evidence.” (People v. Mentch (2008) 45 Cal.4th 274, 288.)



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       When the opinion of an expert witness is received in evidence, the trial “court
shall instruct the jury substantially as follows: [¶] Duly qualified experts may give their
opinions on questions in controversy at a trial. To assist the jury in deciding such
questions, the jury may consider the opinion with the reasons stated therefor, if any, by
the expert who gives the opinion. The jury is not bound to accept the opinion of any
expert as conclusive, but should give to it the weight to which they shall find it to be
entitled. The jury may, however, disregard any such opinion if it shall be found by them
to be unreasonable.” (Pen. Code, § 1127b.)
       “Whether or not to give any particular instruction in any particular case entails the
resolution of a mixed question of law and fact” which “should be examined without
deference.” (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Momentary Possession Instruction
       Appellant argues the trial court wrongly denied his request for an instruction on
the defense of momentary possession, prejudicially harming him. The momentary
possession defense was developed in the context of narcotic possession charges, but it has
been regularly considered in the context of firearm possession cases. (People v. Hurtado
(1996) 47 Cal.App.4th 805, 810-814 (Hurtado).) The defense essentially requires a
defendant to admit to possession, but excepts that possession from criminal consequences
if certain criteria are met. (People v. Martin (2001) 25 Cal.4th 1180, 1190-1191.) The
criteria are that: (1) the possession is “momentary” and “based on neither ownership nor
the right to exercise control over” the item; (2) the item is “possessed in furtherance of its
abandonment or destruction”; (3) the item is possessed “for the purpose of terminating
the unlawful possession of it by another person or preventing another person from
acquiring possession of it”; and (4) “control is not exercised over the [item] for the
purpose of preventing its imminent seizure by law enforcement.” (Id. at 1186, fn.7, 1190
[concluding defense instruction should be made pursuant to the original version of
CALJIC No. 12.06].)

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       Appellant admits there is a complete lack of evidence suggesting he possessed a
firearm in furtherance of its abandonment or destruction. However, relying on the policy
principles underlying the momentary possession defense— encouraging disposal and
discouraging retention of dangerous items—appellant argues his attempt to remove
ammunition from the magazine shows an intent to render the firearm less dangerous,
warranting the defense. (See Hurtado, supra, 47 Cal.App.4th at p. 813.) We disagree.
       The Legislature has separately criminalized both the possession of a firearm and
the possession of ammunition by a felon. (Pen. Code, §§ 29900, 30305.) This structure
is appropriate because an unloaded gun is a serious threat, particularly in the hands of a
previously convicted felon. (People v. Lopez (2004) 119 Cal.App.4th 132, 138 [noting
possession of an unloaded firearm can aid a person committing another crime by being
used as a club or causing the victim to fear it is loaded]; People v. Bell (1989) 49 Cal.3d
502, 544 [noting permissible presumption in Dangerous Weapons Control Act that
danger is greater when the person possessing a firearm has previously been convicted of a
felony].) In the context of Penal Code section 29900, a firearm is defined to include “the
frame or receiver of the weapon” alone and even an unloaded antique firearm. (Pen.
Code, § 16520, subds. (b), (d).)
       Given the separate nature of possessing a firearm and possessing ammunition, we
cannot accept appellant’s invitation to extend the boundaries of the momentary
possession defense to excuse possession of an unloaded firearm simply because the
ammunition disposed of was within the firearm to begin with. Even if we presume
appellant was attempting to dispose of the ammunition, he still illegally possessed a
firearm and made no attempt to dispose of the instrument defining the scope of the crime.
The trial court correctly rejected appellant’s request for a momentary possession
instruction because there was no evidence of any quality to support the request.




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Expert Opinion Instruction
       Next, appellant contends the trial court failed to instruct the jury on expert witness
testimony pursuant to Penal Code section 1127b and that such failure was prejudicial.
Under Penal Code section 1127b, when the opinion of an expert witness is received into
evidence, the trial court must instruct the jury in substantially the same form as provided
in the statute. Although mandatory, failure to give an instruction similar to Penal Code
section 1127b is not prejudicial error “unless the reviewing court, upon an examination of
the entire cause, determines that the jury might have rendered a different verdict had the
omitted instruction been given.” (People v. Lynch (1971) 14 Cal.App.3d 602, 610
(Lynch).)
       This argument arrives in a unique form. While appellant argues the court erred in
failing to give the expert testimony instruction, he does not challenge the introduction of
the allegedly expert testimony (which came in without objection at the time1 and was
further developed in cross-examination), nor does he directly challenge the sufficiency of
the evidence to support the jury’s implicit finding that the 1.026 grams of heroin was a
usable quantity. Rather, arguing that according to the required instruction the jury could
have chosen not to accept Sergeant Vanderwiel’s opinion that the amount of heroin found
was usable, appellant suggests we must reverse because the jury could have reached a
more favorable conclusion had they been properly instructed. We disagree and conclude
any alleged error was harmless.
       Assuming, even without objection, Sergeant Vanderwiel’s statement that 1.026
grams of heroin is absolutely a usable amount should be treated as expert testimony
triggering the trial court’s sua sponte duty to instruct in line with Penal Code section


1      The introduction of such evidence without objection typically forfeits any claim its
introduction was erroneous. (People v. Partida (2005) 37 Cal.4th 428, 433-434; see also
People v. Medina (1995) 11 Cal.4th 694, 729 [failure to object to allegedly improper lay
opinion forfeited argument evidence was wrongly admitted].)


                                              7
1127b, we do not agree the jury might have rendered a different verdict had the
instruction been given. (See Lynch, supra, 14 Cal.App.3d at p. 610.) Without
minimizing the reasonable doubt requirement, proving the presence of a useable amount
in the context of possession claims is not a substantial hurdle. A usable amount is simply
more than a trace amount, provided the “substance is in a form and quantity that can be
used. No particular purity or narcotic effect need be proven.” (People v. Rubacalba
(1993) 6 Cal.4th 62, 66.)
       Even without the contested statement, the evidence presented at trial strongly
indicated more than a trace amount was present. A full gram of heroin was found at a
location where appellant admitted he and Mr. Jourdan were present in order for Mr.
Jourdan to use drugs, and where both were found with recent venipuncture marks on their
arms. Moreover, Sergeant Vanderwiel was not presented to the jury as an expert, nor,
apparently, referred to one in their presence. He was, at least as presented to the jury, a
lay witness. In that vein, the jury was instructed, in line with CALCRIM 200, that it
alone is responsible for determining the facts of the case and, under CALCRIM 226, that
it “alone must judge the credibility or believability of the witnesses,” “setting aside any
bias or prejudice” each member might have, thus minimizing any potential prejudice in
failing to give the expert testimony instruction. (Lynch, supra, 14 Cal.App.3d at
pp. 609-610.)
       Given the limited, one-word nature of Sergeant Vanderwiel’s alleged expert
testimony, the strong evidence showing the 1.026 grams was a useable amount, and the
protective instructions lessening the possibility the jury could assign impermissible
weight to Sergeant Vanderwiel’s statement, we conclude any error was harmless.
                                      DISPOSITION
       The judgment is affirmed.




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