People v. May

47 Cal.App.5th 1001

261 Cal.Rptr.3d 365

The PEOPLE, Plaintiff and Respondent,

v.Raymond Douglas MAY, Defendant and Appellant.

C084302

Court of Appeal, Third District, California.

Filed April 20, 2020

Certified for Partial Publication.^*

Jyoti Malik, Woodland, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.

Robie, Acting P. J.

Following a jury trial, defendant Raymond Douglas May was found guilty of possessing an assault weapon and a machine gun based on his possession of a single AK-47 assault rifle while guarding a marijuana plantation. He was sentenced to probation, which included an electronic search condition. On appeal, defendant contends there was a lack of sufficient evidence corroborating his accomplice’s testimony and demonstrating he knew of the firearm’s illegal character. He further alleges instructional error, in that the accomplice instruction should have included language specifying that the accomplice testimony needs to prove more than defendant’s mere presence or access to the firearm. Finally, he asserts the electronic search condition imposed as part of his probation fails under Lent . ( People v. Lent (1975) 15 Cal.3d 481, 124 Cal.Rptr. 905, 541 P.2d 545.) We agree defendant’s electronic search condition must be stricken, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

IThe Offense

In early October 2016, Antonio Alanis-Rodriguez volunteered to work on a marijuana plantation in Butte County to learn about the emerging market. He arrived on October 3 and met employees of the plantation, including defendant, although he did not learn any of their names. Alanis-Rodriguez was shown around the 165-acre property, which had eight grow sites containing over 490 plants in total. Five of the grow sites were on the southern portion of the property and three were on the northern portion. What appeared to be a main campsite, consisting of multiple trailers outfitted with sleeping quarters, was located on the southern side of the property. There was also a small building with a trimming machine used for marijuana processing on the north side of the property.

After touring the plantation, Alanis-Rodriguez was told to set up his tent near a grow site on the northern side of the property. The site was a third of a mile away from the main campsite. Someone asked Alanis-Rodriguez whether he would take on a tent mate, and then defendant was assigned to bunk with him. Once both men were in the tent, somebody gave an AK-47 rifle to defendant through the opening of the tent. Alanis-Rodriguez expressed discomfort but defendant assured him he would remove the gun from the tent and put it in a truck in the morning. Alanis-Rodriguez had never seen a gun like the AK-47 before but said it looked like the guns he saw in video games. Alanis-Rodriguez asked defendant about the job expectations for the next day, and defendant told him they were going to water the plants.

When the men woke up the next morning, defendant put the AK-47 in a nearby parked truck as promised, and left the passenger side doors open.¹ The truck was registered to Juan Paises-Hernandez. The men walked to another grow site before returning to the grow site they had slept near. Upon their return, defendant and Alanis-Rodriguez saw Butte County Sheriff’s deputies executing a search warrant of the marijuana plantation. Officers discovered the AK-47 on the backseat of the truck parked at the grow site defendant and Alanis-Rodriguez were assigned to guard. They found identifying information of both defendant and Alanis-Rodriguez inside the tent. A search of defendant did not yield keys to the truck and defendant was never seen driving the truck.

There were tents set up at the other grow sites on the plantation. A shotgun was also found on the property but not confiscated because it was a legal firearm. Paises-Hernandez’s belongings were found in a trailer at the main campsite. Both defendant and Alanis-Rodriguez, along with Paises-Hernandez were arrested. Alanis-Rodriguez pled no contest to possession of an AK-47 and testified against defendant.

IIExpert Testimony

Detective Marshall testified as an expert about the marijuana cultivation business. It is common for employees on a marijuana plantation to sleep near the grow sites to ensure the product is protected. To this extent, it is also common to be armed while guarding these sites. In fact, Detective Marshall has come across fully automatic weapons at marijuana grow sites at least 75 times in his over 20-year career. It is also common for more than one employee to guard a single grow site within a larger plantation.

Detective Marshall believed Paises-Hernandez was in a management position on the marijuana plantation. He based this opinion on Paises-Hernandez’s statements and the fact that the vehicle being used on the plantation was registered to him. Usually, low-level employees do not bring their own vehicles to the site. Further, it appeared Paises-Hernandez slept in one of the trailers at the main campsite, which is typical for management because the trailers provide better sleeping quarters than a tent. Management usually entrusts experienced employees to drive the trucks and possess weapons. It is unusual to trust new employees with vehicles or weapons.

Detective Benjamin Cornelius testified as an expert in firearms. He began his testimony by showing the jury a semiautomatic rifle from his own gun collection. He explained the difference between semiautomatic and fully automatic firearms. He then showed the jury the confiscated AK-47, which had a collapsible stock to make it more compact, a flash suppressor to minimize the explosion from the weapon when fired, a detachable high-capacity magazine holding 30 rounds, and a three-position selector switch. A selector switch usually allows a person to switch the weapon’s setting from safety to semiautomatic fire; however, the seized AK-47 allowed a user to switch the weapon’s setting from safety to fully automatic fire and also to semiautomatic fire.

Although Detective Cornelius could not tell simply by looking at the AK-47 that it was fully automatic, the presence of the three-position selector switch alerted him to the possibility. Upon closer inspection, he realized the gun had been modified to have a third position allowing for fully automatic fire. He compared the features of the seized AK-47 to his semiautomatic rifle and noted his semiautomatic rifle was missing the collapsible stock, flash suppressor, and large-capacity magazine.

DISCUSSION

I^**

IISufficient Evidence Supports Defendant’s Convictions

Defendant contends insufficient evidence supports his convictions because no evidence established he knew of the illegal character of the AK-47. We disagree.

The principles governing our assessment of defendant’s challenge to the sufficiency of the evidence are well settled. "We ‘ " ‘must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt....’ " ’ ‘Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.’ " ( People v. Brooks, supra , 3 Cal.5th at p. 57, 219 Cal.Rptr.3d 331, 396 P.3d 480.)

A^***

BPossession Of A Machine Gun

Section 32625, subdivision (a) provides: "Any person ... who within this state possesses or knowingly transports a machinegun ... is guilty of a public offense ...." (Ibid. ; 1170, subd. (h)(1).) A machine gun is any weapon that shoots "automatically more than one shot, without manual reloading, by a single function of the trigger." (§ 16880.)

In 1953, the Second District, Division Three, interpreted an earlier version of this law.⁴ ( People v. Daniels (1953) 118 Cal.App.2d 340, 257 P.2d 1038.) It concluded "the Machine Gun Law" was a strict liability offense. ( Id. at p. 343, 257 P.2d 1038.) The court reasoned, "[i]n view of the use of the word ‘knowingly’ as applied to transportation, we think it conclusive that, as applied to the possession of a machine gun, the Legislature intended that the mere fact of possession should constitute the crime." ( Id. at p. 345, 257 P.2d 1038.) Because the statute’s language was unequivocal, the court saw "a clear legislative determination that society can best be protected against the evil of possession by a vigorous application of an inflexible rule. No doubt the Legislature felt that possession of a machine gun could hardly be had without knowledge that the object was in fact a machine gun; and that, on the other hand, there may be innocent, unwitting, inadvertent, or unintended acts of transportation." ( Ibid. )

In 1984, the First District, Division Four, revisited the issue and determined possession of a machine gun a strict liability crime. ( People v. Corkrean (1984) 152 Cal.App.3d 35, 38-39, 199 Cal.Rptr. 375.) It thought it a question of statutory construction and rejected the defendant’s attempt to analogize the statute to possession of narcotics, where scienter is implied. ( Id. at p. 38, 199 Cal.Rptr. 375.) It reasoned that in narcotics law, scienter was missing from the statutes altogether, thus it could be consistently read into the statutory language. Here, scienter is specified for one type of conduct (transport) but not another (possession), showing a clear intent to treat these acts differently. ( Id. at pp. 38-39, 199 Cal.Rptr. 375.) Further, the Legislature knows the law and failed to amend possession of a machine gun to include a knowledge requirement despite having amended the statute for other reasons and other parts of the...