People v. Rios

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Fresno County, No. F19900231 Kristi Culver Kapetan, Judge.

Jake Stebner, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and F. Matt Chen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

THE COURT ^[*]

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Defendant Jose Miguel Rios stands convicted of a misdemeanor and three felonies, including possession of a firearm by a felon. He contends on appeal that the prosecutor engaged in misconduct by causing the jury to discover that defendant was a convicted felon when he included a reference to defendant's felon status in a verdict form after the parties stipulated that defendant was a felon and agreed to omit any reference to defendant's felon status.^[1] The People acknowledge that it was inconsistent with the trial court's in limine ruling to include defendant's felony status in a verdict form, however, they contend that any error was harmless. We affirm.

PROCEDURAL SUMMARY

On September 24, 2019, the Fresno County District Attorney filed an information charging defendant with possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1);^[2] count 1), two counts of possession of ammunition by a person prohibited from owning a firearm (§ 30305, subd. (a)(1); counts 2 & 3), and misdemeanor resisting a peace officer (§ 148, subd. (a)(1); count 4). The information further alleged that defendant had served two prior prison terms (§ 667.5, subd. (b)).

On January 7, 2020, the parties stipulated that defendant had suffered a felony conviction within the last 10 years and was therefore not permitted to possess a firearm or ammunition.

On January 8, 2020, a jury found defendant guilty on all counts. On the same date, the trial court dismissed the prior prison term allegations on the People's motion.

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On February 7, 2020, the trial court sentenced defendant to an aggregate term of three years as follows: on count 1, three years (the upper term); on counts 2 and 3, three years (the upper term) to be served concurrently with the term on count 1; and on count 4, defendant was awarded credit for time served.^[3]

On February 21, 2020, defendant filed a notice of appeal.

FACTUAL SUMMARY

On December 21, 2018, at about 1:30 a.m., Parlier Police Officer Edgar Martinez was on patrol when he saw defendant and another man in a vehicle travelling eastbound without a license plate. He also noticed that the other man, who was driving the vehicle, was talking on a cell phone. Martinez activated the emergency lights and siren on his patrol vehicle and attempted to initiate a vehicle stop. The vehicle continued to drive eastbound, made a northbound turn, and continued to drive for approximately 15 to 20 minutes. As the vehicle fled, defendant and the other man threw items out of the driver and passenger windows. Martinez could not tell what the items were, but he noted the intersections where they were thrown from the vehicle. The vehicle chase ended in the city of Selma when officers used spikes to stop the fleeing vehicle.

When the vehicle came to a rest, defendant and the other man exited the vehicle through the passenger door and ran to a nearby apartment complex. As defendant ran, he

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held a hand to his chest or stomach area as though he was holding something.^[4]Defendant and the other man then jumped over a small fence about 50 feet from the vehicle. Defendant continued to run, but the other man fell. Martinez apprehended the other man and lost sight of defendant as he ran behind an apartment. Martinez relayed defendant's description to other officers. Soon after, Parlier Police Officer Dominik Mendez apprehended defendant after chasing him to a different apartment complex.

Martinez searched the vehicle and the surrounding area. He found 10 shotgun shells in the rear driver side seat of the vehicle. Martinez also found a shotgun about 100 feet from the vehicle in the direction defendant had run, in approximately the location where Martinez had lost sight of defendant. Martinez had detained the other man before he was able to reach the area where the shotgun was found. Martinez noted that the lawn sprinklers had recently run in the area and the ground was wet, but the top of the shotgun was dry. That suggested to Martinez that the shotgun was recently left in that location.

Parlier Police Detective Johnathan Pierro heard Martinez call over the police radio that defendant and the other man where throwing items out of the windows during the vehicle pursuit. Pierro drove to the location indicated by Martinez and found multiple rounds of pistol and shotgun ammunition discarded on the side of the road. The ammunition was shiny and did not appear to be dirty; it did not appear to have been at the location for a long period of time. Pierro said the ammunition all appeared to be live ammunition. Pierro knew the area; ammunition of that type and quantity was not commonly discarded on the road.

DISCUSSION

The parties stipulated at trial that defendant was a person prohibited from possessing firearms or ammunition because of his prior convictions. As a result of the

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stipulation, the parties agreed and the court ordered that no mention be made of defendant's felon status or history of incarceration.^[5] Nevertheless, the verdict form for count 1, which the prosecutor prepared, described the offense as "[p]ossession of a firearm by a felon." No other mention was made of defendant's felon status or history of incarceration. The verdict forms for counts 2 and 3 described the offenses as "[p]ossession of [a]mmunition [b]y [a] [p]erson [p]rohibited from [o]wning a [f]irearm."

Defendant contends that the characterization of the offense as "possession of a firearm by a felon" in the verdict form on count 1 constituted reversible error. As a threshold matter, the People argue that defendant's claim is forfeited. On the merits, the People agree that, pursuant to the trial court's in limine ruling, the verdict form should not have included any reference to defendant's felon status, but they contend that any error was harmless. We agree with the People that defendant's prosecutorial misconduct claim is forfeited and, in any event, any error was harmless.

A. Forfeiture

" 'A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court. [Citations.]'" (In re N.O. (2019) 31 Cal.App.5th 899, 935.) Our Supreme Court has repeatedly applied the forfeiture rule in the context of purportedly erroneous verdict forms. (People v. Johnson (2015) 61 Cal.4th 734, 784; People v. Jones (2003) 29 Cal.4th 1229, 1259; People v. Bolin (1998) 18 Cal.4th 297, 330; People v. Webster (1991) 54 Cal.3d 411, 446.) Because defendant's counsel did not voice a specific objection based on the inclusion of the word "felon" in the verdict form, the issue is forfeited. (See People v. Scott (1994) 9 Cal.4th 331, 351- 352.)

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Contrary to defendant's argument, suggestion of a defendant's felon status was not so grave an error that it could not have been corrected by a curative instruction to the jury and an amendment to the verdict form. (See People v. Valdez (2004) 32 Cal.4th 73, 124- 125 [reference to state prison custody implying defendant's felon status "was not so grave that a curative instruction would not have mitigated any possible prejudice to defendant"].)

B. Merits

Even overlooking defendant's forfeiture of the argument regarding erroneous inclusion of the word "felon" on the verdict form on count 1, any error was harmless.^[6]

The parties disagree on the appropriate standard of prejudice in this situation. The People characterize this situation as akin to a juror's inadvertent consideration of inadmissible evidence or a trial court's erroneous admission of inadmissible...