Filed 8/25/15 P. v. Bullock CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----




THE PEOPLE,                                                                                  C077211

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62122237)

         v.

DARIS MEADE BULLOCK,

                   Defendant and Appellant.




         A jury found defendant Daris Meade Bullock guilty of being a felon in possession
of a firearm and being a felon in possession of ammunition and found true that he was
armed with a firearm when committing these two offenses. The jury acquitted him of
making a criminal threat. The trial court sentenced him to five years in prison.
         On appeal, defendant raises contentions relating to the evidence, the instructions,
trial counsel’s performance, and sentencing.




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       We agree with one, namely, the trial court should have stayed the one-year
sentence for being armed with a firearm attached to his conviction for being a felon in
possession of a firearm. We modify the sentence and affirm as modified.
                  FACTUAL AND PROCEDURAL BACKGROUND
       On May 31, 2013, Michelle Morales, her husband, and her other family and
friends were camping at Rollins Lake. She met defendant, who was playing a guitar near
the river, and she and her friends talked with him and his wife. Morales and her friends
ended up going to defendant’s house and having some drinks with him.
       Morales returned to her campsite, and defendant joined her, her husband, and her
friends, and all of them were singing, drinking, talking, and having a good time. Morales
ended up drinking too much, getting sick, and going to bed.
       Morales awoke to the sound of arguing, and she sent her husband out to see what
was going on. Morales decided to get out of her tent as well. She testified she could not
remember what happened next because she was too intoxicated. But, upon questioning,
she testified there was an altercation involving defendant, and she saw a firearm “[i]n
[defendant’s] back pocket.” The part she initially saw was the handle of the gun and
upon seeing it, she “[g]rabbed it and handed it off,” “[b]ecause [she] didn’t want nobody
to get hurt.” She called police. Defendant “ended up taking off walking” and Morales
was relieved.
       However, defendant came back. Morales was “pretty sure that [defendant] was
angry that we called the police on him. I’m pretty sure he yelled, ‘Why did you call the
police.’ ” Morales called police again.
       This time, Placer County Sheriff deputies Dustin Johnston and Sasha Glenwinkel
came to the campsite. Morales talked to Deputy Glenwinkel, but Morales testified she
could not remember what they talked about. According to Deputy Glenwinkel, Morales
was sober and lucid and answered the deputy’s questions. Morales said that defendant
“threatened to come back and get ‘em all” when he learned Morales had called police the

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first time. Morales said she was scared for her safety and that of her three young children
at the campsite because defendant had a firearm. Morales then led the deputy to a spot
behind a tree that was about five feet past the last tent, where Morales pointed out a .38-
caliber revolver. The revolver was about 40 feet away from where the deputies found
defendant.
       When the deputies found defendant, he was yelling about something, smelled
strongly of alcohol, and could barely walk. Deputy Johnston found a small pouch
containing 11 rounds of .38-caliber ammunition in defendant’s left front pants’ pocket.
Deputy Glenwinkel put defendant in the patrol car. Defendant yelled out the window to
the campers, “they didn’t know who they were messing with and that he’d be back to
take care of them later and that they’ll be sorry.”
       The parties stipulated that defendant had a prior felony conviction.
                                       DISCUSSION
                                              I
                    The Trial Court Properly Admitted And Instructed
                 On Evidence Of Morales’s Prior Inconsistent Statement
       Defendant contends the trial court erred in admitting Morales’s prior inconsistent
statement and then erred in instructing the jury about the statement. Specifically, Deputy
Glenwinkel testified that Morales told her, “[defendant] became irate when he found out
Morales had called the cops and threatened to come back and get ‘em all.”
       Defendant argues that his statement he would “come back and get ‘em all” (a) was
hearsay and not admissible as a prior inconsistent statement; (b) was testimonial and
admitted in violation of his due process right to confront the witnesses against him, citing
Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177]; and (c) should not have
been admitted for the truth of the matter stated and therefore the court erred in instructing
the jury.



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       As we explain: (a) this double hearsay statement was admissible as an admission
of a party and a prior inconsistent statement; (b) defendant failed to preserve his
confrontation clause argument because he did not object on this ground in the trial court,
but his trial counsel was not ineffective for failing to object; and (c) the trial court
correctly instructed the jury.
                                               A
              The Double Hearsay Statement Morales Told The Deputy That
        Defendant Threatened To “Come Back And Get ‘Em All” Was Admissible
             As An Admission Of A Party And A Prior Inconsistent Statement
       Defendant contends that his statement he would “come back and get ‘em all” was
hearsay and not admissible as a prior inconsistent statement. As we explain, there were
two levels of hearsay in this statement and both fell within exceptions to the hearsay rule.
(See People v. Reed (1996) 13 Cal.4th 217, 224-225 [“As with all multiple hearsay, the
question is whether each hearsay statement fell within an exception to the hearsay rule]”.)
       The first level of hearsay was defendant’s statement that he threatened to “come
back and get ‘em all.” This hearsay statement was admissible as an admission by a party.
(Evid. Code, § 1220 [“Evidence of a statement is not made inadmissible by the hearsay
rule when offered against the declarant in an action to which he is a party. . . .”].)
“Evidence Code section 1220 covers all statements of a party, whether or not they might
otherwise be characterized as admissions.” (People v. Horning (2004) 34 Cal.4th 871,
898, fn. 5.) “Simply stated, and as a general rule, if a party to a proceeding has made an
out-of-court statement that is relevant and not excludable under Evidence Code
section 352, the statement is admissible against that party declarant.” (People v. Castille
(2005) 129 Cal.App.4th 863, 875-876.) Here, the People offered this statement as such,
the court admitted it, and there was no argument (in the trial court or on appeal) that its
admission violated Evidence Code section 352. As such, the court was within its
discretion to admit it.

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       The second level of hearsay was Morales’s statement to Deputy Glenwinkel that
Morales told the deputy, “[defendant] . . . threatened to come back and get ‘em all.” This
statement was admissible as a prior inconsistent statement under Evidence Code
section 1235 because it was inconsistent with Morales’s trial testimony. A prior
statement can be deemed inconsistent when the witness is found to be evasive at trial,
even though claiming a lack of memory. (People v. Ervin (2000) 22 Cal.4th 48, 85-86.)
“When a witness’s claim of lack of memory amounts to deliberate evasion, inconsistency
is implied.” (People v. Johnson (1992) 3 Cal.4th 1183, 1219.) Morales’s testimony
demonstrates at times she was deliberately evasive, and at other times she had a selective
memory. For example, when the prosecutor asked her, “Did the defendant make any
statements to you about the fact that you called the police,” Morales responded, “I don’t
recall.” When the prosecutor asked her why she did not recall, Morales responded, “I
don’t remember having a conversation with him.” However, after the prosecutor “ha[d]
[her] read something”1 and asked if that “refreshed [her] recollection regarding whether
or not the defendant made any statements to [her] about contacting the police,” Morales
replied, “I’m pretty sure that he was angry that we called the police on him. I’m pretty
sure he yelled, ‘Why did you call the police.’ ” This testimony was inconsistent with
Morales’s statement to the deputy that defendant “threatened to come back and get ‘em
all,” so the court was within its discretion to admit it, where defendant had objected to its
admission on the grounds that it was not a prior inconsistent statement.




1     Presumably this was the statement Deputy Glenwinkel wrote down about what
Morales said defendant had said to Morales.

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                                              B
         Defendant's Confrontation Clause Claim Was Forfeited By His Failure
      To Make A Specific And Timely Objection; Trial Counsel Was Not Ineffective
       Defendant next contends that Morales’s statement to the deputy that defendant
said he would “come back and get ‘em all” was testimonial and admitted in violation of
his due process right to confront the witnesses against him. As we explain, defendant
failed to preserve this argument, but his trial counsel was not ineffective.
       “Under California law, error in admitting evidence may not be the basis for
reversing a judgment or setting aside a verdict unless ‘an objection to or a motion to
exclude or to strike the evidence . . . was timely made and so stated as to make clear the
specific ground of the objection or motion . . . .’ (Evid. Code, § 353, subd. (a), italics
added [by Zamudio].) ‘In accordance with this statute, [the California Supreme Court
has] consistently held that the “defendant’s failure to make a timely and specific
objection” on the ground asserted on appeal makes that ground not cognizable.
[Citations.]’ (People v. Seijas (2005) 36 Cal.4th 291, 302 . . . .) Although no ‘particular
form of objection’ is required, the objection must ‘fairly inform the trial court, as well as
the party offering the evidence, of the specific reason or reasons the objecting party
believes the evidence should be excluded, so the party offering the evidence can respond
appropriately and the court can make a fully informed ruling.’ ” (People v. Zamudio
(2008) 43 Cal.4th 327, 354.)
       Thus, to preserve a claim of federal constitutional error under the confrontation
clause, defendant was required to make a timely and specific objection, rather than
simply object (as he did) about the statement’s admissibility as a prior inconsistent
statement.
       Nevertheless, trial counsel was not ineffective for failing to object on this ground.
In Crawford, the United States Supreme Court held that the confrontation clause
prohibits “admission of testimonial statements of a witness who did not appear at trial

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unless he was unavailable to testify, and the defendant had had a prior opportunity for
cross-examination.” (Crawford v. Washington, supra, 541 U.S. at pp. 53-54 [158
L.Ed.2d at p. 194].) Regarding unavailability, this court has rejected the notion that for
Crawford purposes, “a witness who appears at trial but feigns a lack of memory should
nonetheless be considered unavailable.” (People v. Gunder (2007) 151 Cal.App.4th 412,
419.) “The circumstance of feigned memory loss is not parallel to an entire refusal to
testify. The witness feigning memory loss is in fact subject to cross-examination,
providing a jury with the opportunity to see the demeanor and assess the credibility of the
witness, which in turn gives it a basis for judging the prior hearsay statement’s
credibility.” (Id. at p. 420.) Thus, “a reasonably competent lawyer would not have
bothered to assert an objection based on a violation of defendant’s right to confrontation.
As a result, we reject the defendant’s argument.” (Gunder, at p. 420.)
       The same is true here. Morales was present at trial and available for cross-
examination. She did not refuse to testify, but rather feigned memory loss as to certain
aspects of what happened with defendant, so the jury was able to assess her credibility.
Thus, there was no reason for trial counsel to assert a confrontation clause violation.
                                             C
                The Trial Court Properly Instructed The Jury Pursuant to
               CALCRIM No. 318 Regarding Prior Statements As Evidence
       Over trial counsel’s objection that there was no foundation to give CALCRIM
No. 318 because there was no contrived failure to remember, the court instructed the jury
as follows:
       “You have heard evidence of statements that a witness made before the trial. If
you decide that the witness made those statements, you may use those statements in two
ways. First, to evaluate whether the witness’s testimony in court is believable; and
second, as evidence that the information in those earlier statements is true.”



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       On appeal, defendant renews his objection, contending the court erred in giving
the instruction “because it presumed the existence of a non-existent foundational fact (i.e.
deliberate evasiveness) and thus invited the jury to consider incompetent evidence” for
the truth of the matter stated.
       In People v. Hudson (2009) 175 Cal.App.4th 1025, we discussed the application of
CALCRIM No. 318. “CALCRIM No. 318 informs the jury that it may reject in-court
testimony if it determines inconsistent out-of-court statements to be true. By stating that
the jury ‘may’ use the out-of-court statements, the instruction does not require the jury to
credit the earlier statements even while allowing it to do so. [Citation.] Thus, we reject
defendant’s argument that CALCRIM No. 318 lessens the prosecution’s standard of
proof by compelling the jury to accept the out-of-court statements as true.” (Hudson, at
p. 1028.)
       While the argument here is not that the instruction lessened the burden of proof,
but rather that there was no foundational premise for the instruction, a claim we have
already rejected in part IA of the Discussion, Hudson makes the very relevant point that
the instruction does not direct the jury to believe the out-of-court statement, but that it can
if it so chooses. This is a correct statement of law, again, as we explained in part IA of
the Discussion, because the jury is allowed to consider the statement for the truth of the
matter, if it so chooses.
       In addition, here the jurors received other instructions that applied to their
understanding and application of CALCRIM No. 318. The court instructed with
CALCRIM No. 226, which told jurors that “[y]ou alone must judge the credibility or
believability of the witnesses,” in evaluating a witness’s testimony “you may consider”
whether “the witness ma[d]e a statement in the past that is consistent or inconsistent with
his or her testimony,” “[d]o not automatically reject testimony just because of
inconsistencies or conflicts,” “[p]eople sometimes honestly forget things or make
mistakes about what they remember,” and that “[i]f you do not believe a witness’s

                                              8
testimony that he or she no longer remembers something, that testimony is inconsistent
with the earlier statement on that subject.”
       Thus, the instructions as a whole told jurors they were the ones to decide witness
credibility taking into account, among other things, whether there were inconsistencies in
a witness’s testimony or failures to remember evidence. It did not direct them to credit
the earlier statement by Morales to Deputy Glenwinkel about what defendant said. We
presume the jury was able to follow all of the court’s instructions. (People v. Ibarra
(2007) 156 Cal.App.4th 1174, 1190.)
                                               II
                There Was Sufficient Evidence That Defendant Was Guilty
                      Of Being A Felon In Possession Of A Firearm
       Defendant contends there was insufficient evidence he was a felon in possession
of a gun because Morales had no present recollection of the events in question and the
hearsay statements were “incompetent hearsay.” Not true. When the prosecutor first
asked Morales where the gun was when she first saw it, she responded, “I was told it was
in [defendant’s] back pocket.” The court sustained an objection to the question and
answer and told the jury to “disregard the response.” The prosecutor then told Morales,
“I don’t want you to talk about what someone told you, just what you remember” and
then asked her, “Do you remember where you first saw the firearm?” Morales answered,
“In [defendant’s] back pocket.” The part she initially saw was the handle of the gun and
upon seeing it, she “[g]rabbed it and handed it off,” “[b]ecause [she] didn’t want nobody
to get hurt.” This evidence was sufficient to show defendant possessed the firearm.
                                               III
                 The Punishment For The Arming Enhancement Attached
                    To The Felon In Possession Count Must Be Stayed
       The trial court sentenced defendant to four years in prison for being a felon in
possession of a firearm plus one year for the arming enhancement. On appeal, defendant

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contends and the People agree that the one-year sentence for the enhancement for being
armed with the weapon he possessed should have been stayed pursuant to Penal Code
section 654. We agree.
       The People’s theory of the case at trial was that defendant physically possessed the
gun in his pocket and that “one in the same act” also constituted being armed with a
firearm within the meaning of the enhancement. Consistent with this theory, the People
presented no evidence defendant possessed or used the firearm at any time other than
when he had it in his pocket. Thus, there was no “ ‘possession distinctly antecedent and
separate from the primary offense’ ” (People v. Bradford (1976) 17 Cal.3d 8, 22)
warranting separate punishment for the arming enhancement. Thus, the trial court should
have stayed the arming enhancement attached to the felon in possession of a gun count.
                                     DISPOSITION
       The punishment for the arming enhancement attached to the felon in possession of
a firearm count is stayed pursuant to Penal Code section 654. As modified, the judgment
is affirmed. The trial court is directed to modify the abstract of judgment accordingly and
forward a copy of the modified abstract to the Department of Corrections and
Rehabilitation.



                                                       ROBIE                 , Acting P. J.



We concur:



      BUTZ                  , J.



      HOCH                  , J.

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