B-623

Brief Bank # B-623

NOTE: The text of the footnotes appear at the end of the document.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal
No. 3 Crim. C000000
Plaintiff and Respondent, (Tehama County Superior Court
v. Nos. 0000, 0000)

JOHN DOE,

Defendant and Appellant.
_____________________________________/

OPENING BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction
Superior Court, County of Tehama

The Honorable Elmer R. Jennings, Presiding Judge

Michael B. Dashjian State Bar No. 111072
Law Offices of Michael B. Dashjian
3161 Bechelli Lane, Suite 202-B
Redding, California 96002
(916) 221-8900
Attorney for John Doe
By appointment of the Court of Appeal
(Central California Appellate Program Independent Case)

III. The Orders In Both Cases Should Be Reversed Based On The Absence Of A Jury
Instruction Necessary For The Jury To Understand The Legal Principle Of
“Constructive Possession”

This section will show that CALJIC No. 12.44 was fatally defective in this possession case. The instruction given failed to define the legal term “right” and the phrase in which it was used, ‘right to control,” which was an important issue in this case. The failure to define a legal term is per se reversible error, as will be shown below.

Although that of itself is dispositive, this section will also show that under the particular circumstances of this case-in which Mr. Doe’s probation officer gave testimony with an incorrect interpretation of the concept of “constructive possession” (and in fact the jury appears to have relied on that incorrect interpretation)-the trial court was required sua sponte to clarify the concept by means of a readily available supplemental instruction. If however there were no sua sponte duty, then trial counsel would have been ineffective in failing to request such a clarifying instruction, and there could be no possible tactical reason for such a failure, because the view of the law expressed by the probation officer entailed a much lower standard of proof on the central issue in the case than the law actually provides for.

As it was, CALJIC No. 12.44 and the erroneous legal standard in the testimony stood alone, and this was particularly prejudicial under the circumstances of this case. During deliberations, the jury sent in notes requesting a readback of testimony containing the statements of the probation officer that mere access alone was legally sufficient to constitute the crime of possession of a firearm. This was the only testimony the jury wanted read back, and a few minutes after the readback, the jury convicted Mr. Doe. The quick verdict after the readback suggests strongly that the jury was relying on the probation officer’s erroneous statement of the law in formulating its decision. (People v. Markus (1978) 82 Cal.App.3d 477, 482.)

On any or all of these grounds, the conviction in the felony case should be reversed. In addition, because the finding of firearm possession in the probation violation case was equally affected by the error, the violation of probation should be reversed as well.

A. The Problem

The standardized instruction governing the accusation that Mr. Doe possessed a firearm was CALJIC No. 12.44, and it was given as follows:

In order to prove [the crime charged], each of the following elements must be proved:

1. The defendant owned, had in his possession, or had under his control a firearm,

2. The defendant had knowledge of the presence of said firearm.

There are two kinds of possession: Actual possession and constructive possession.

Actual possession requires that a person exercise direct physical control over a thing.

Constructive possession does not require actual possession, but does require that a person knowingly exercise control or the right to control a thing, either directly or through another person or persons.

One person may have possession alone, or two or more persons together may share actual or constructive possession. (RT 924-925, emphasis added.)

Based on the facts of this case, the jury could rationally have found that Mr. Doe did not own any of the three guns. But even if the jury found there was no actual ownership, the question would have remained whether Mr. Doe constructively possessed any of those guns, given that his girlfriend owned them, or that they were upstairs in the closet of a tenant. The issue of constructive possession was thus a central one in the case.

Mr. Doe’s probation officer, Reldon Montgomery, answered two substantive questions in his two pages of testimony. One of those sets of answers was his legal interpretation of section 12021, which he testified that he also gave to Mr. Doe:

Q [By the prosecutor] [D]id you give Mr. Doe . . . any caution about his . . . presence around firearms?

A Oh, absolutely.

Q What did you tell him?

A Well, what we tell every convicted felon, it’s a state and federal felony to be around a firearm.

Q Did you clarify what you meant by ‘around firearms”?

A Well, not be in their presence or be where they could have access to them.

Q You told that to Mr. Doe?

A Yes, sir, I did. (RT 802, emphasis added.)

Mr. Doe testified to a similar conversation:

Reldon Montgomery told me that I cannot have a weapon upon myself. I also asked him if I went with somebody that I went with, that I took hunting, that person can have a gun as long as there’s not another gun or something inside that vehicle beside me, and that person can say and prove that it’s his possession. I asked him about a roommate, and he said as long as I don’t have access to that room, and yes, that roommate can have a gun. (RT 790, emphasis added.)

The probation officer’s statements to Mr. Doe were a wrong statement of the law. Possession of contraband may be imputed when it is found in a location that is immediately accessible to the accused and subject to his dominion and control. (People v. Francis (1969) 71 Cal.2d 66, 71.) However, possession may not be imputed when the accused only has access to the place in question but not dominion and control. (Goodlow v. Superior Court (1980) 101 Cal.App.3d 969, 975.)

Rather, mere proof of access to or presence near contraband, without more, does not support a finding of unlawful possession. (People v. Redrick (1961) 55 Cal.2d 282, 285; Goodlow v. Superior Court, supra; People v. Jenkins (1979) 91 Cal.App.3d 579, 584, and cases cited.) It is therefore not a violation of Penal Code § 12021 to be “around firearms” meaning “in their presence or . . . where they could have access to them,” and Mr. Montgomery erroneously stated the law when he testified to the contrary. [FOOTNOTE 1]

When a credible public official such as a probation officer testifies to an interpretation of a law that he gave within the scope of his duties, the jury as a practical matter is likely to give extreme weight to such testimony. And that in fact appears to be exactly what happened here.

During deliberations, the jury sent in a note asking for “Doe’s and Montgomery’s testimony.” (CT 141; Supp. RT 2-3.) In order to avoid a needless review of the entirety of testimony, the trial court sent back a note saying, “There is no existing transcript. Do you mean you want their entire testimony read back to you by the court reporter?” (CT 141; Supp. RT 23.) The jury responded, “No.” (CT 141; Supp. RT 2-3.) The trial judge then wrote back, “Is there some identifiable portion of Doe’s or Montgomery’s testimony you wish read back by the Court reporter?” (CT 142; Supp. RT 2-3.) The jury responded “Yes,” and then identified the portions of the testimony they wanted read:

“1. Doe’s testimony about what [the] Probation Officer said he could & could not do concerning firearm in pickup.

2. Montgomery’s testimony about his instructions to Doe concerning firearms.” (CT 142; Supp. RT 2-3.)

The jury was read this testimony, which contained Mr. Montgomery’s wrong interpretation of the law, at 5:55 p.m. (CT 153; Supp. RT at pp. 10-11.) Almost immediately thereafter, at 6:18 p.m., the jury came back in and returned a conviction. (CT 154.) The specificity of the jury’s notes, and the quickness of the conviction following the specific readback, lead to the inevitable conclusion that the jury is likely to have relied on Mr. Montgomery’s erroneous interpretation of the law in convicting Mr. Doe. (People v. Markus, supra.)

The problem is further compounded in this case by the fact that both the prosecutor and the trial court–not just the probation officer-appear to have been wrong on the law, and that they believed that access alone supported a finding of constructive possession and violation of the law. That was the trial court’s view, as the court supported the probation officer’s view on the subject at sentencing (RT 939), and then elaborated:

When somebody’s been convicted of a felony, even one that didn’t originally involve the use of guns-like the one you were convicted of-what the law says is you just aren’t supposed to be around guns where you could get a hold of them if you wanted them-you know, like that. The fact that they’re upstairs is no big deal. (RT 939.)

And as for the prosecution, it made an “access, therefore possession’ argument-that Mr. Doe had “constructive possession” to the guns in the closet because he could have secured the guns by going up the stairs, into Ms. R’s room, and into the open closet. (RT 843, 850, 862, 905-906.)

Especially with such a strong likelihood that the jury used an erroneous legal standard in returning a conviction, that conviction should be open to serious question. But the conviction should be reversed anyway, because the jury instructions were insufficient to provide essential guidance to the jury on the crucial issue of constructive possession.

B. The Conviction And The Probation Violation Should Be Reversed Because The
Trial Court Failed To Define The Term “Right To Control,” A Technical Legal
Term That Cannot Be Understood Without Reference To Laws That The Jury
Was Not Instructed On, And Such A Failure To Define A Technical Legal Term
Is Reversible Error Per Se

This section will show that CALJIC No. 12.44 was defective, at least in the context of this case, because it failed to define a technical legal term central to the instruction, namely, the term “right to control.” It will show that the jury could easily have drawn the wrong conclusion on the law from the instruction given, and will further show that such an error is reversible per se, although the record in this case shows prejudice in any event.

1. The Need For Definition Of The Word “Right” And The Term “Right To Control”

The fact that so many players in this case were wrong on the law, despite the existence of a statute that is supposed to set forth the law and a standardized jury instruction (here, CALJIC No. 12.44) that is supposed to explain it, suggests many things. Among them is that the standardized jury instruction is inadequate to handle cases in which the jury could readily find “mere access” and not true constructive possession. The concluding portion of Mr. Doe’s trial highlighted this inadequacy, because the jury was given the standardized instruction and still appear to have concluded mistakenly that mere access equalled constructive possession.

All of this raises the obvious question: What could be wrong with CALJIC No. 12.44 in a case in which “mere access” is an issue?

One answer is in the language emphasized in the quotation of the jury instruction above (ante p. 26)-“the right to control” a thing. The “right to control” language was part of the instruction on a material element of the crime in question, namely (constructive) possession. The outcome of this case may in fact have depended on whether the jury found that Mr. Doe had “the right to control” the firearms found in Ms. R’s closet.

However, the jury instructions contained no dermition of the “right” to control. This was reversible error.

The word “right,” at least as it was used in this case, is a term of law that requires definition for the jury. “Right” is one of the most “legal” of all legal terms, because it is one of the most fundamental concepts in our legal system and the legal systems of civilized nations.

It is impossible to determine if someone has a “right” without reference to other laws. In other words, whether a person has a “right” to something depends on the presence or absence of statutes, constitutions, judicial decisions and other legal authorities that may either create such a right, provide it by default, or define it not to exist. This proposition has been a basic part of our legal system since its inception. “When I say that a right is vested in a citizen, I mean, that he has the power to do certain actions; or to possess certain things, according to the law of the land.” (Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 394 [1 L.Ed. 648], opn. of Chase, J. (emphasis added); see also, e.g., Wheaton v. Peters (1834) 33 U.S. (8 Pet.) 591, 638 [8 L.Ed. 1055] (basic liberty may be enjoyed only by reference to rules of property which define the rights of things in general).) There is no such thing as a “right” in a vacuum.

Thus, whether a person has a “right” to something is inherently a technical legal concept. Jurors cannot know whether a person has a “right” without reference to the other laws on which the presence or absence of the “right” depends.

And when those other laws are not known to the jurors as a matter of common understanding, then the word “right” or the term “right to control” is a technical legal concept that requires definition by the trial court, based on the laws relating to that right. Jurors must be instructed sua sponte on the definition of legal terms that “ha[ve] a technical meaning peculiar to the law.” (People v. Shoals (1992) 8 Cal.App.4th 475, 489, quoting People v. Reynolds (1988) 205 Cal.App.3d 776, 779.) “Instructions are given on the relevant law simply because we do not presume a jury composed of lay persons is knowledgeable in the law.” (People v. Whitehurst (1992) 9 Cal.App.4th 1045, 1050.)

The jury in this case did not have any such guidance, and could not have known what the term “right to control” in CALJIC No. 12.44 really meant. Without a definition of the legal term “right to control,” at least in the context of this particular case, CALJIC No. 12.44 was incomplete and failed to guide the jury adequately, which is reversible error. (People v. Shoals, supra, 8 Cal.App.4th at pp. 490-491.)

That is especially true in this case, because as shown in the next section, whether Mr. Doe had a “right to control” guns in his tenant’s bedroom closet depended in part on other laws, which the jury is not presumed to know about absent instruction.

2. The Type Of Definition That Was Required In This Case

In this case, whether Mr. Doe had a “right to control” the guns that were in the closet of his tenant’s bedroom could only be determined properly with reference to the laws regulating the rights and obligations of landlords and tenants.

In California, a landlord does not have the legal “right” unilaterally to enter a tenant’s dwelling unit (except under limited circumstances set forth by statute, none of which are relevant here). (Civ. Code § 1954.) A “dwelling unit” into which a landlord cannot enter without permission includes any part of a structure used as a sleeping place by a person maintaining a household. (Civ. Code § 1940, subd. (c).) By the undisputed testimony, Ms. R was such a person, and her bedroom was such a sleeping place. Furthermore, even if Ms. R was merely a subtenant and not a primary tenant, the same law still applies. (Civ. Code § 1940, subd. (a).) The law still applies even though Mr. Doe lived downstairs from Ms. R and could physically reach her dwelling unit via an interior staircase. (Id.)

Thus, as a matter of law in this particular case, the fact that Mr. Doe lived downstairs from an open closet in a bedroom in which the guns were kept-his “access” to the guns-did not give him the “right” to control those guns. As discussed ante, Part III(A), physical access alone is not constructive possession (see, e.g., People v. Redrick, supra); what is required is access plus “dominion and control.” The only thing which could give Mr. Doe such a “right” to control the guns would be some form of permission from Ms. R for entry into her dwelling unit to obtain the guns, and there is no record evidence of Ms. R having said anything at all on this subject. The police officers searched the entire structure and found nothing with Mr. Doe’s name on it in any part of the upstairs, but found many things with Mr. Doe’s name on it downstairs. (RT 502-503.)

However, this jury was not instructed on the severe restrictions on a landlord’s “right to control” items of personalty that are in the residence of a tenant. Nor was the jury instructed that those restrictions apply just as much when the landlord lives in the same structure as the tenant, as they do when the landlord lives across town. Nor is this jury expected to have been expert on landlord and tenant law, since the jury is not expected to know anything about the law at all. Instead of hearing the law on the “right to control” from the trial judge, the jury heard only the erroneous legal interpretation of the probation officer that physical “access” alone was a violation of section 12021.

In other words, the only definition that the jury received of the legal term “right to control” in the context of this case came in as evidence from the probation officer, and it was the wrong definition. Under authority such as People v. Shoals, supra, and People v. Reynolds, supra, the trial court erred in failing to define “right to control” sua sponte.

There are at least two readily apparent ways in which the trial court could have satisfied its obligation to give a definition of the legal term “right to control” in the particular factual context of this case. One would have been to give an instruction incorporating the principles of Civil Code §§ 1940 and 1954, so that the jury would have understood that a “right to control” the firearms could not be based solely on the fact that Mr. Doe lived downstairs from Ms. R’s dwelling unit. In that manner, the jury would have recognized that if it were to find Mr. Doe guilty of the “right to control” the firearms, it would have to be based on considerations other than mere proximity, such as if the jury found permission from Ms. R to enter her bedroom, directly or indirectly, to obtain the firearms. This would effectively have eliminated the improper considerations from the term “right to control,” and left the jury with parameters within which it could properly decide the issue.

Another way to accomplish the same thing would have been to give the following instruction on top of CALJIC No. 12.44:

However, proof of access to the things, without more, is insufficient to support a finding of possession.

[This instruction is taken from FORECITE California. (1 FORECITE California F 1.24b.)] This would have prevented the jury from deciding that the “right to control” the guns in Ms. R’s closet could be found based on the fact that Mr. Doe lived downstairs from Ms. R’s bedroom. It would thus have forced the jury to determine whether Mr. Doe had the permission of Ms. R for entry into her room to obtain the guns, which would have been the correct legal issue in determining whether there was a “right to control.”

Whatever the proper method might have been of solving the problem, however, the trial court did not do so. It thus failed to fulfill its legal obligation of defining a technical legal term whose meaning would not be a matter of common understanding. [FOOTNOTE 2]

3. The Trial Court Committed Reversible Error

The trial court erred by failing to give sua sponte a definition of the legal term “right to control.” Furthermore, because this legal term was part of the jury instructions on a material element of the crime alleged, the error is prejudicial and reversible per se. As it was most recently explained:

“It is the trial court’s duty to see that jurors are adequately informed on the law governing all elements of the case to the extent necessary to enable them to perform their function. This duty is not always satisfied by a mere reading of wholly correct, requested instructions. [Citation.] A trial court has a sua sponte duty (1) to instruct on general principles of law relevant to issues raised by the evidence [citation]; and (2) to give explanatory instructions when terms used in an instruction have a technical meaning peculiar to the law. A defendant has a constitutional right to have the jury determine every material issue presented by the evidence, and a denial of that right constitutes a miscarriage of justice regardless of the strength of the prosecution’s case. [Citation.]” (People v. Reynolds (1988) 205 Cal.App.3d 776, 779; Pen. Code, Sec. 1138.)

(People v. Shoals, supra, 8 Cal.App.4th at pp. 489-490, emphasis added.)

Based on this, Shoals held that the trial court was required sua sponte to define a technical legal term which was part of a material element of the offense charged. The failure to do so denied the right to have the jury determine every material element of the offense, because the jury did not have adequate guidance on one such material element. Consequently, such an error “constitute[d] a miscarriage of justice regardless of the strength of the prosecution’s case.” (Id. at p. 491, quoting People v. Reynolds, supra, 205 Cal.App.3d at p. 779.)

Exactly the same is true here. And although the error is reversible per se, it would also fail any test for “harmless error,” since (i) the record shows a strong likelihood that the jury relied on the wrong legal standard, and (ii) the case for “constructive possession” under a correct legal standard would have been based solely on inferences from circumstantial evidence which were rebutted by the uncontested testimony of several witnesses, including a retired longtime public servant (the former fire chief in Bend, Larry Neil). There is thus a reasonable possibility that the outcome would have been different had the correct instruction been given. (People v. Watson (1956) 46 Cal.2d 818, 836.)

As a result of the foregoing alone, the conviction and the probation violation should be reversed.

C. The Conviction And The Probation Violation Should Also Be Reversed Because Of
The Trial Court’s Failure To Give A “Mere Access” Instruction Sua Sponte,
Especially Given The Testimony Of A Public Official Setting Forth A Wrong
Legal Standard On A Material Element Of The Offense

In light of the fact that the probation officer Mr. Montgomery gave testimony setting forth a wrong legal standard on a material element of the offense, the trial court had an obligation to give sua sponte an instruction nullifying that wrong legal standard and setting the jury straight. Since the incorrect legal standard was that mere access to guns by an ex-felon-or (equivalently) mere presence around those guns-was a violation of the law in question in this case, the trial court could readily have accomplished this by giving one of the supplemental instructions quoted above:

However, proof of access to the things, without more, is insufficient to support a finding of possession.

(1 FORECITE California F 1.24b.) “Mere access” and “mere presence” are equivalent legal concepts in possession cases. (See, e.g., People v. Johnson (1980) 104 Cal.App.3d 598, 606; People v. Mennuys (1969) 2 Cal.App.3d 1083, 1088-1089; People v. Zyduck (1969) 270 Cal.App.2d 334, 335-336; People v. Haynes (1967) 253 Cal.App.2d 1060, 1066.)

Even apart from the sua sponte obligation set forth in Part III(C), ante, the trial court’s failure to do so was reversible error for My one of three separate reasons, set forth below.

1. A “Mere Access” Instruction Must Be Given Sua Sponte When The Evidence
Raises A Factual Issue, As It Does Here

It has been held in a different factual context (an aiding and abetting case) that a “mere presence” instruction, where there is a factual issue raising it, is among the “general principles of law governing the case [which] are those closely and openly connected with the facts before the court, and which are necessary for the j ury’s understanding of the case.” (People v. Perry (1979) 100 Cal.App.3d 251, 260-261 [cited in Use Note to CALJIC 3.01], quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.)

Perry is controlling here as well. There is no reason why a “mere presence”/”mere access” instruction would be a sua sponte instruction in the aiding and abetting context when the evidence raises a factual issue, but not in the primary liability context when the evidence raises a factual issue. Put differently, appellant is not aware of any principled distinction which could be made to render Perry inapplicable to the context of this case.

As a result, a “mere presence” instruction was a “general principle of law governing the case” here. Failure to give adequate instructions on such a general principle of law is reversible error. (People v. Sedeno (1974) 10 Cal.3d 703, 715, 270; People v. Modesto (1963) 59 Cal.2d 722, 730-731.) The error in this case could not be dismissed as “harmless” in any event, for the reasons set forth ante, Part III(B).

FOOTNOTES:

[Footnote 1]: Appellant is unaware of what federal law Mr. Montgomery was talking about, and it is not apparent that such a law exists. It would not matter, however, because this trial only concerned a claimed violation of state law.

[Footnote 2]: The failure to define this technical legal term might not be an issue in cases where constructive possession is not an issue. If a witness identifies the defendant (an ex-felon) as a person who was driving a car and waving a gun out the window, and the defense is that of mistaken identification, there is no issue of “constructive possession,” and therefore no need to define “right to control.” (There would be no reason to give the “right to control” portion of the instruction either, but doing so would not be reversible error in such a case. (People v. Guiton (1993) 4 Cal.4th 1116.))

However, constructive possession and the “right to control” were live issues in this case. The jury was not told what the legal term “right to control” meant, and concomitantly, it was also not told what that legal term did not mean.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT

PEOPLE OF THE STATE OF CALIFORNIA, Court of Appeal
No. 3 Crim. C000000
Plaintiff and Respondent, (Tehama County Superior Court
v. Nos. 0000, 0000)

JOHN DOE,

Defendant and Appellant.
_____________________________________/

REPLY BRIEF OF APPELLANT JOHN DOE

Appeal From Final Judgment of Conviction
Superior Court, County of Tehama

The Honorable Elmer R. Jennings, Presiding Judge

III. The Orders In Both Cases Should Be Reversed Based On The Absence Of A Jury
Instruction Necessary For The Jury To Understand The Legal Principle Of
“Constructive Possession” [Appellant’s Opening Brief, Part III, Pages 25-43]

Preliminarily, respondent’s claim of “waiver” is without merit. There is no “waiver” by failing to request a sua sponte instruction, since the very nature of a sua sponte instruction is that the trial court must give it whether anyone requests it or not. (People v. Sedeno (1974) 10 Cal.3d 703, 715, quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.) Waiver of a sua sponte instruction only occurs when defense counsel has “invited error” by expressly objecting to required instructions for a tactical reason clearly apparent from the record. (People v. Wickersham (1982) 32 Cal.3d 307, 330-334.) There is no such “invited error” here.

A. The Conviction And The Probation Violation Should Be Reversed Because The Trial
Court Failed To Define The Term “Right To Control.” A Technical Legal Term That
Cannot Be Understood Without Reference To Laws That The Jury Was Not
Instructed On, And Such A Failure To Define A Technical Legal Term Is Reversible
Error Per Se

While there are a number of claims in respondent’s brief, none of them change the fact that Mr. Doe did not have a “right to control” guns merely because they were in a tenant’s open closet.

Respondent’s first contention appears to be that Mr. Doe had a legal right to go up and get the guns from Ms. R’s closet any time he wanted, merely because he was her landlord. (See RB at p. 19, fn. 4.) No support is provided for this claim. Landlord entry is permitted under certain conditions enumerated in Civil Code section 1954, but none of those conditions permit going into a tenant’s closet to obtain property. Furthermore, there is no evidence in this record that any of the non-ordinary conditions set forth in section 1954 (i.e., that repairs or alterations were necessary or agreed upon, that Ms. R’s apartment was to be shown to prospective lessors, etc.) existed here.

Respondent also suggests Ms. R may have been a “lodger,” as defined in Civ. Code § 1946.5, subd. (c). There is no support for this in the record. Ms. R testified that she rented the upstairs bedrooms from Ms. M (RT 733) and that her 18-year-old daughter lived with her (RT 737, 744). She was unaware of any time Mr. Doe had ever been in her room. (RT 744.) Mr. Doe testified Ms. R was renting her bedroom and he respected her privacy and could not go into her room. (RT 778-780.) No document or other item with Mr. Doe’s name on it was found upstairs. (RT 503-504.) There is nothing in this record to indicate Mr. Doe or Ms. M personally occupied the upstairs or retained the right of control over Ms. R’s part of the house, so there is no evidence that Ms. R was a “lodger.” By contrast, there is ample evidence in this record that Ms. R was a tenant of Ms. M or Mr. Doe; the jury could (and would) have so found, and a jury instruction was required.

Respondent also claims that the words “right” and “right to control” are “words in common usage.” (RB at p. 19.) The case cited by respondent, however, makes clear that the real issue is whether a word or phrase is “used in a technical sense peculiar to the law.” (People v. Eastman (1993) 13 Cal.App.4th 668, 673 [cited in RB at p. 19], quoting People v. Williams (1988) 45 Cal.3d 1268, 1314.) The phrase “right to control” in the context of this case is in fact “used in a technical sense peculiar to the law.”

The mere fact that a word is “in common usage” does not mean no sua sponte instruction is required. This is shown by People v. Shoals, supra, 8 Cal.App.4th at pp. 489-491, in which the words “opening” and “maintaining” were held in the context of that case to have a technical legal meaning that required sua sponte instruction, and by People v. Valenzuela (1985) 175 Cal.App.3d 381, 393, in which the word “assault” was held to have a technical legal meaning that required sua sponte instruction. “Assault,” “opening” and “maintaining” are words in common usage, but because they have a technical legal meaning, a sua sponte legal definition of them is required. The same is true for “right to control” in the particular context of this case.

In this case, there could be no constructive possession without a “right to control” the guns. Since the jury was not instructed on what “right to control” meant, it would have had to rely on common uses of language. Based on common usage, the jury could have found a “right to control” the guns in Ms. R’s closet under any of three circumstances: (1) Mr. Doe had the physical ability to go and get the guns any time he wanted, or (2) there was some preexisting arrangement by virtue of which he had permission to enter the tenant’s dwelling unit to get the guns, or (3) there was a different preexisting arrangement by which somebody else would get him the guns at his request. There is no evidence in this record to support (2) or (3), so the prosecution was arguing (1)–“physical access, therefore constructive possession”–as a basis for guilt. (RT 843, 850, 862, 905-906.)

But (1) is impermissible as a matter of law; “mere access” does not support a finding of constructive possession, and the mere fact that Mr. Doe could get into Ms. R’s closet does not mean he had a legal right to. Without an instruction on what the “right to control” meant as a legal matter, however, the jury would have had no way of knowing this. The jury could have convicted Mr. Doe by finding a “right to control” the guns based on his physical access to Ms. R’s closet, which is exactly what the prosecution sought. That is why there is error, and that is why the error is reversible under authority such as People v. Shoals, supra.

The instruction given, CALJIC No. 12.44, does make clear that the elements of the crime require a person “knowingly exercise control or . . . the right to control over the firearm.” (See RB at p. 20.) But since there is no evidence that Mr. Doe exercised direct control over any of the guns, the issue becomes whether the jury would understand that the “right to control” requires something more than physical access to where guns are kept. Respondent’s argument appears to be that because the jury was instructed with the phrase “right to control,” there was no need to define that phrase. Such an argument is circular as well as wrong.

Finally, respondent’s claim on page 20 of his brief just misses the point. So that there can be no mistake, and this Court may determine for itself what Reldon Montgomery said, appellant has set forth Mr. Montgomery’s precise testimony on pages 26 and 27 of his opening brief. Mr. Montgomery said it was “a state and federal felony to be around a firearm,” meaning “in their presence or . . . where they could have access to them.” (RT 802.)

In other words, Mr. Montgomery told appellant he could not be in a place where he had access to a gun, which is a clear statement that having access to a gun would be illegal–that mere access does show constructive possession. That is the testimony the jury specifically requested, and the only standard of law the jury was given on the issue of “access.” But it was a wrong standard, since access alone does not establish the right to control a firearm. [FOOTNOTE 1]

Respondent’s erroneous reading of Mr. Montgomery’s testimony was obviously inadvertent, but it was erroneous nonetheless. That error recurs throughout Part III of the respondent’s brief, and underlies further errors as well.

The jury could have followed the trial court’s instructions perfectly (cf. RB at pp. 20-21), and still convicted Mr. Doe based on factual findings that should have resulted in his acquittal –namely, mere access but no actual right to control. Jurors are, of course, presumed to follow the trial court’s instructions. It is when they can reach an erroneous result by following the trial court’s instructions that error lies. That is the case here.

B. The Conviction And The Probation Violation Should Also Be Reversed Because Of
The Trial Court’s Failure To Give A “Mere Access” Instruction Sua Sponte,
Especially Given The Testimony Of A Public Official Setting Forth A Wrong Legal
Standard On A Material Element Of The Offense [Appellant’s Opening Brief,
Part III(C), Pages 34-43]

1. A “Mere Access” Instruction Must Be Given Sua Sponte When The Evidence
Raises A Factual Issue, As It Does Here rappellant’s Opening Brief,
Part III(C)(1), Pages 35-36]

In his opening brief, appellant showed that based on People v. Perry (1979) 100 Cal.App.3d 251, 260-261, a “mere presence” instruction is required sua sponte when it is a factual issue in the case, under the general principles of People v. Sedeno, supra, 10 Cal.3d at pp. 715, 720. Respondent does not mention Perry in his brief or otherwise show why that case does not control here. Accordingly, this Court should follow Perry and reverse.

2. A “Mere Access” Instruction Should Have Been Given In Light Of The Probation
Officer’s Testimony [Appellant’s Opening Brief, Part III(C)(2). Pages 36-38]

Respondent’s only contention is that there is some sort of “waiver” here. The very nature of a sua sponte instruction is that the trial court is obligated to give it. There can be no “waiver” of a sua sponte instruction requirement absent deliberate “invited error” which did not exist here. (See ante, p. 8; People v. Wickersham, supra, 32 Cal.3d at pp. 330-334.) Appellant is making no claim other than that the omitted instruction was a sua sponte instruction.

The sole issue raised in this section is that under the unusual circumstances of this case, once the probation officer testified that mere access to guns was by itself a violation of section 12021, the issue of “mere access” immediately became a “general principle of law relevant to the issues raised by the evidence,” a principle “closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.” Such an instruction must be given, and failure to do so is reversible error. (People v. Sedeno, supra.)

Other than the erroneous argument that Mr. Montgomery did not say anything legally incorrect to Mr. Doe (see ante, p. 10), respondent makes no argument relevant to this issue. This Court should reverse on this ground alone.

3. The Trial Court Had An Obligation To Give Supplemental Instructions When The
Jury’s Notes Strongly Indicated The Juty Was Going In The Wrong Legal
Direction, As Only By So Doing Could The Trial Court Ensure That The Jury’s
Verdict Was Based On Proper Legal Standards [Appellant’s Opening Brief, Part
III(C)(3), Pages 38-39]

Because appellant’s argument is based on a sua sponte duty of the trial court, respondent’s claim of “waiver” (RB at p. 21) must again fail.

On the merits, respondent only claims that “unlike [People v.] Thompkins [(1987) 195 Cal.App.3d 244], “the jury’s request for a reread of testimony in the present case did not give any indication of confusion or error.” That claim is itself in error. The jury had specifically focused on, and wanted a precise readback of, Mr. Montgomery’s testimony which contained the erroneous legal standard that “mere access” would be a violation of the law. As discussed above, it is not, and it does not support a violation of the law because “mere access” does not show the required “right to control.” A reasonable juror could have concluded Mr. Montgomery “made clear” to Mr. Doe that mere access, without actual custody and control, was sufficient to prove the “right to control,” an essential element of possession. Respondent has not addressed the issue of Thompkins’s applicability to a situation such as that here, where the jury’s notes indicate clearly that its main focus is testimony of a public official that provides erroneous guidance on the applicable law.

FOOTNOTE:

Footnote 1: Respondent also states that “the testimony is clearly referring to situations in which appellant knows that guns are present.” (RB at p. 20.) That argument is irrelevant to appellant’s point of error. Ynowledge and the right to control are two separate elements of a possession offense, and both must be proved beyond a reasonable doubt. (In re Winship, supra.) Appellant’s argument deals with the legal requirements of proving the second element, right to control, not the first element, knowledge. (There was also a prejudicially erroneous instruction on this first element of knowledge, but that has been addressed ante, Part II.)

Thus, even if this jury had concluded that Mr. Doe was aware the guns were in Ms. R’s closet, that is insufficient to convict; the prosecution must also prove the second element beyond a reasonable doubt, that Mr. Doe controlled or had the right to control the guns. The issue here is whether because of the faulty instructions, the jury could have convicted Mr. Doe based on his “access” when under correct instructions, the jury would have found that Mr. Doe did not have the right to control the guns. It was on this second element–the element of control–that the probation officer gave his legally erroneous testimony, and it was on 7second element that the trial court should have given but did not give a “mere access” instruction. Based on the probation officer’s erroneous testimony and the trial court’s failure to instruct, the jury heard only a legally erroneous view of what the “right to control” meant, and that is the reversible error.