People v. Tapia

29 Cal.Rptr.3d 158

129 Cal.App.4th 1153

The PEOPLE, Plaintiff and Respondent, v. Jesus Manuel TAPIA, Defendant and Appellant.

No. B168657.

Court of Appeal, Second District, Division 3.

May 31, 2005.

Certified for Partial Publication.^*

Rehearing Denied June 28, 2005.

Review Denied September 7, 2005.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Ana R. Duarte and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.

ALDRICH, J.

I. INTRODUCTION

Defendant and appellant Jesus M. Tapia pointed a firearm at another motorist during a traffic dispute. When officers came to Tapia's residence the next day to investigate, they observed Tapia, who was standing on the sidewalk in front of his residence, remove a loaded handgun from his pocket and place it inside a vehicle parked in the driveway. The sidewalk where Tapia had been standing was within 1,000 feet of a high school. Tapia was convicted of possession of a firearm in a school zone, in violation of Penal Code section 626.9,¹ and assault with a firearm. At trial, he sought to present, as a defense to the section 626.9 charge, evidence that the sidewalk where he had been standing was on private property, subject to an easement of way granted to a public entity. In the published portion of this opinion, we conclude a sidewalk on an easement of way granted to a public entity does not qualify as private property within the meaning of section 626.9, subdivision (c)(1). In the unpublished portion of this opinion, we reject Tapia's contention that the trial court improperly denied Pitchess² discovery and limited cross-examination of a witness. We affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts.

1. People's case.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11, 82 Cal. Rptr.2d 413, 971 P.2d 618), the evidence relevant to the issues on appeal established the following. At approximately 11:00 p.m. on May 25, 2002, Angel Luggo was double-parked in front of his residence on East 40th Place in Los Angeles, talking to Jose Mecina. Tapia was driving down the street in a sport utility vehicle (SUV) belonging to Ricardo Santoyo, who was a passenger in the SUV. Tapia honked and told Luggo to move his car. Mecina stated, "[t]he street is free," and told Tapia to go around. Tapia exited his vehicle and asked, "Are you talking back to me?" Mecina replied affirmatively, and the two men argued. Tapia punched Mecina. Tapia then pointed a gun at Luggo and told him to move his car. Luggo complied.³

In response to Luggo's complaint to police, the next day, May 26, 2002, Los Angeles Police Officers Charles Wunder and Lyman Doster went to the area of 40th Place where the incident had occurred. They observed Tapia, who matched the assailant's description, and Santoyo standing in front of Tapia's residence at 1257 East 40th Place, near a brown Chevrolet Suburban SUV. Santoyo was standing inside the gate on the actual property. Tapia was standing on the sidewalk behind the SUV. As the police car approached, Tapia walked from the sidewalk to the SUV, pulled a loaded blue steel handgun from his pants pocket, and placed it on the front seat of the SUV. To keep Tapia and Santoyo off guard, Doster asked whether the men were stripping a car. Both men were detained and handcuffed.

The sidewalk in front of Tapia's residence, where Tapia had been standing with the gun in his pocket, was 282 feet from Jefferson High School.

2. Defense case.

Tapia testified that he had been driving his wife home in Santoyo's vehicle when he encountered Luggo's vehicle blocking the street. He could not get around the car without hitting Luggo's vehicle. Tapia honked, and Mecina stated, "This is my block." Tapia exited his car and approached Mecina, but Mecina "came at" Tapia. Tapia put his hand up to protect himself and Mecina backed away. Tapia asked, "What's your problem." He did not possess or point a gun, although he did have a cellular telephone in his hand. Santoyo corroborated this account, as did Tapia's wife Adriana.

As to the next day's events, Tapia testified that when officers first approached, he was "inside of the yard opening the wrought iron fence" to allow access to the SUV. The gun found in the vehicle was Santoyo's, and Tapia had not been holding it at any time that day. Santoyo testified that he placed the gun in his vehicle on May 26, the day after the encounter with Luggo. He was in the process of putting his gun in the car in its case when police pulled up. He placed it on the seat because he did not have time to finish putting it in the case. Santoyo had not given the gun to Tapia.

Tapia admitted that he did not have a concealed weapon permit or permission from the school district to carry a firearm.

B. Procedure.

Trial was by jury. Tapia was convicted of possession of a firearm in a school zone (§ 626.9, subd. (b)) and assault with a firearm (§ 245, subd. (a)(2)). The jury found true an allegation that Tapia personally used a firearm, a handgun, during commission of the assault. (§ 12022.5, subd. (a).) Tapia was placed on probation for three years on condition he serve 365 days in county jail. The trial court also imposed a restitution fine and assessed a suspended parole revocation fine. Tapia appeals.

III. DISCUSSION

A. Preclusion of private property defense.

1. Section 626.9 and the trial court's ruling.

As noted, Tapia was charged with violation of the Gun-Free School Zone Act of 1995, section 626.9. Section 626.9 prohibits possession of a firearm in an area that the person knows or reasonably should know is a school zone, without permission from specified school authorities.⁴ (§ 626.9, subd. (b).) "School zone" is defined as "an area in, or on the grounds of, a public or private school providing instruction in kindergarten or grades 1 to 12, inclusive, or within a distance of 1,000 feet from the grounds of the public or private school." (§ 626.9, subd. (e)(1).) The statute contains several exceptions.⁵ Relevant here is subdivision (c)(1), which provides that "Subdivision (b) does not apply to the possession of a firearm under any of the following circumstances: [¶] (1) Within a place of residence or place of business or on private property, if the place of residence, place of business, or private property is not part of the school grounds and the possession of the firearm is otherwise lawful." (Italics added.)

The defense theory was that the sidewalk where officers observed Tapia with the gun on May 26, 2002 was private property, and section 626.9 was therefore inapplicable. Before trial began, Tapia's counsel indicated he intended to present testimonial and documentary evidence to establish that Tapia's father possessed title to the property at 1257 East 40th Place "out to the curb," subject to a public easement for the sidewalk. The prosecutor, on the other hand, sought a ruling that the sidewalk was public, not private, property as a matter of law within the meaning of section 626.9.

After hearing the parties' arguments, the trial court concluded the sidewalk was public property for purposes of section 626.9. It explained, "I think the letter and spirit of this statute contemplates the protection of children. And otherwise that's what this statute is directed to, is keeping people from possessing . . . guns in a school zone . . . . [¶] I'm going to tell you right now my decision is that it is public property, regardless of whether your client has an easement or has title to that property or not. I don't believe that your client had anything to do with construction of the sidewalk. And I can see by looking [at a photograph of the area] that the sidewalk runs throughout the whole neighborhood. So it must have been done for a common purpose, and it runs directly right in front [of] the high school or the school that the statute seems to be protecting." The trial court observed that the general public, as well as schoolchildren, used the sidewalk.

The trial court subsequently instructed the jury, "Possession of a firearm within a school zone is not unlawful if the firearm is being lawfully transported or if the firearm's possession is within a place of residence or on private property, providing the place of residence or private property is not part of the school grounds. Possession of the firearm within a school zone is otherwise not lawful." "If you find, beyond a reasonable doubt, that the sid[e]walk in front of 1257 East 40th Place, Los Angeles, California, is a public place, then that sidewalk is not private property within the meaning of Penal Code Section 626.9(b). [¶] The term `public place' means any place which is open to common or general use, participation and enjoyment by members of the public." (Italics added.)

2. Discussion.

Tapia contends both the exclusion of the proffered evidence and the instruction were erroneous, and the purported errors deprived him of his constitutional right to present a defense. (See, e.g., People v. Cash (2002) 28 Cal.4th 703, 727, 122 Cal.Rptr.2d 545, 50 P.3d 332.) We agree that a portion of the trial court's instruction was erroneous. However, we conclude that, as a matter of law, a sidewalk on an easement of way which has been granted to a public entity is not private property within the meaning of section 626.9.⁶ The trial court's error was therefore harmless beyond a reasonable doubt, and Tapia was not prevented from presenting a viable defense.

a. A sidewalk on an easement of way granted to a public entity is not "private property" within the meaning of section 626.9.

When interpreting a statute, we are guided by the familiar principle that we must ascertain the Legislature's intent so as to effectuate the purpose of the law. (People v. Leal (2004...