People v. Abram CA4/1
- Proceeding
- appeal from a judgment
- Trial court
- Superior Court of San Diego County · No. SCS252361, SCD233752
- Trial judge
- Alvin E. Green Jr.
- Outcome
- affirmed — Affirmed.
- Area
- criminal
- Panel
- Richard D. Huffman, Sr. (author), O'Rourke, Joan K. Irion
Analysis
The trial court convicted Abram of being a felon in possession of ammunition and sentenced him to 12 years and four months in prison. The Court of Appeal affirmed the judgment, finding that substantial evidence supported the conviction that the ammunition was live and not blanks.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Conviction for felon in possession of ammunition (former Penal Code § 12316, subd. (b)(1))“Ballardo's testimony qualifies as substantial evidence from which a reasonable trier of fact could find Abram was, in fact, a felon in possession of live ammunition.” | substantial evidence | correct | agree with court The court correctly applied the substantial evidence standard, determining that the officer's testimony that the rounds contained bullets and appeared live, combined with their identification as Vietnam War era carbine rounds, was sufficient to support the conviction. The reasoning aligns with the cited authorities regarding circumstantial and direct evidence of live ammunition. |
Due process claim regarding sufficiency of evidence“Because we reject Abram's initial contention and conclude that substantial evidence did support his conviction of being a felon in possession of live ammunition, we need not determine whether the conviction violated his due process.” | unclear | correct | agree with court The court correctly declined to reach the constitutional due process argument because the underlying sufficiency of the evidence was resolved in the defendant's favor. This is a standard and appropriate procedural disposition when the factual predicate for a constitutional claim fails. |
Authorities
- relied: People v. Johnson (1980) 26 Cal.3d 557 — Establishes the standard of review for sufficiency of evidence, requiring the court to review the record in the light most favorable to the judgment and presume facts in support of the verdict.
- relied: People v. Kelly (2007) 42 Cal.4th 763 — Reaffirms that a conviction must be affirmed if substantial evidence supports the judgment.
- relied: In re Arcenio V. (2006) 141 Cal.App.4th 613 — Provides the framework for determining when circumstantial evidence is sufficient to prove ammunition is live, including the officer's treatment of the rounds and direct examination of the rounds.
- relied: In re Khamphouy S. (1993) 12 Cal.App.4th 1130 — Supports the inference that ammunition is live based on its caliber and correspondence to a firearm capable of firing live rounds.
- relied: People v. Zavala (2005) 130 Cal.App.4th 758 — Establishes that the testimony of a single witness is sufficient evidence to support a verdict.
The appellate opinion: sound — The opinion is sound because it correctly applies the substantial evidence standard to the specific facts of the officer's testimony and the nature of the ammunition. It appropriately resolves the sufficiency issue, rendering the due process argument moot.
How this analysis was made · dispute it
unusual dispositionThe trial court, after a jury convicted Abram of robbery, found him guilty in a bifurcated bench trial of being a felon in possession of ammunition (former Pen. Code § 12316, subd. (b)(1)) and sentenced him to 12 years four months. On appeal Abram challenged only the ammunition conviction for insufficient evidence that the rounds were not blanks, and the Court of Appeal affirmed, holding the officer's testimony that each round contained a bullet with an unstruck primer and was a Vietnam-era carbine round was substantial evidence the ammunition was live.
| Ruling reviewed | Standard | The court | The model |
|---|---|---|---|
Trial court's finding, in bifurcated bench trial, that Abram was guilty of being a felon in possession of ammunition under former section 12316, subdivision (b)(1), challenged for insufficient evidence that the ammunition was live rather than blanks“Ballardo replied that he did look at the rounds, the bullet was in the cartridge, and the primers appeared not to have been struck. Thus, the state presented direct evidence that the rounds were live in the form of opinion testimony from the officer who examined them.” | substantial evidence | correct | agree with court The court correctly stated the deferential substantial-evidence standard (Johnson, Kelly) and applied the Arcenio/Khamphouy framework for proving ammunition is live. An officer's testimony that each cartridge contained a bullet with an unstruck primer, plus identification of the rounds as carbine rounds of a specific type, is more than the record found insufficient in Arcenio, and a single witness's testimony suffices under Zavala. The conclusion follows from the stated record. |
Claim that the conviction violated Fourteenth Amendment due process because of insufficient evidence“Because we reject Abram's initial contention and conclude that substantial evidence did support his conviction of being a felon in possession of live ammunition, we need not determine whether the conviction violated his due process.” | unclear | not reached | agree with court The due process claim was wholly derivative of the sufficiency claim; under Jackson v. Virginia a conviction supported by substantial evidence does not violate due process, so declining to separately address it was proper even if the court could have said so more directly. |
Authorities
- relied: People v. Johnson (1980) 26 Cal.3d 557 — Sufficiency of evidence is reviewed in the light most favorable to the judgment, presuming every fact and reasonable inference the trier of fact could draw.
- relied: People v. Kelly (2007) 42 Cal.4th 763 — Judgment is affirmed if supported by substantial evidence.
- relied: In re Arcenio V. (2006) 141 Cal.App.4th 613 — Evidence is insufficient to show ammunition is live where no officer testified the rounds were live or removed for safety and the court did not inspect them; sets out circumstantial indicia that suffice.
- relied: In re Khamphouy S. (1993) 12 Cal.App.4th 1130 — Circumstantial evidence such as caliber corresponding to a real firearm, appearance of the rounds, and officers' careful handling supports an inference that ammunition is live.
- relied: People v. Zavala (2005) 130 Cal.App.4th 758 — The testimony of a single witness is sufficient evidence to support a verdict.
The appellate opinion: sound — The opinion identifies the correct standard of review, the governing statutory definition excluding blanks, and the controlling appellate authority on proving ammunition is live, then applies them to specific testimony distinguishing this record from Arcenio. It is brief and does not separately analyze the derivative due process claim, but that claim rose or fell with the sufficiency argument.
Opinion
Filed 3/28/14 P. v. Abram CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063752
Plaintiff and Respondent, v. (Super. Ct. No. SCS252361, SCD233752) ALBERT A. ABRAM, Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Alvin E.
Green, Jr., Judge. Affirmed.
Jan B. Norman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and Meagan J.
Beale, Deputy Attorneys General, for Plaintiff and Respondent. A jury convicted Albert A. Abram of robbery. (Pen. Code,1 § 211.) In a bifurcated proceeding, the trial court convicted Abram of being a felon in possession of ammunition (former § 12316, subd. (b)(1)).2 The trial court found true that Abram had committed a prior serious felony (§ 667, subd. (a)(1)), and received a strike conviction (§ 667, subds. (b)-(i)). The court sentenced Abram to 12 years four months in prison.
Abram does not challenge his robbery conviction, but appeals only his conviction of being a felon in possession of ammunition. Abrams argues that, although the court found him guilty of that offense, the record does not support his conviction because the prosecution did not demonstrate the ammunition was not blanks. Abram contends that because the prosecution failed to show the ammunition was not blanks, his conviction should be reversed. We disagree. For reasons we state more fully below, the record was sufficient to support the conviction. Therefore, the trial court's judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On October 23, 2011, Abram robbed Esteban Perez by forcibly prying Perez's cell phone from his hands and walking off with it. Perez identified Abram to police as the man who took his cell phone. Officer Jared Madsen lawfully searched Abram's bedroom pursuant to the robbery investigation. Madsen found Perez's phone in Abram's closet.
Police Corporal Damian Ballardo also searched Abram's bedroom. Ballardo found nine 1 Statutory references are to the Penal Code unless stated otherwise.
2 Section 12316 was repealed in 2010, but the operative date for the repeal was January 1, 2012, when it was substantially reenacted as section 30305. (See Law Revision Com. com., 51D pt. 4 West's Ann. Pen. Code (2012 ed.) foll. § 30305, p. 284.) 2 rounds of rifle ammunition in a purple bag located in a chest of drawers next to Abram's bed. At the bifurcated trial concerning Abram's possession of the ammunition, Ballardo testified that each round contained a bullet. Ballardo also stated he recognized the rounds in question as being Vietnam War era "carbine" rounds.
STANDARD OF REVIEW
We review sufficiency of evidence in the light most favorable to the judgment.
(People v. Johnson (1980) 26 Cal.3d 557, 576.) After reviewing the entire record, we presume each fact and reasonable inference from the evidence in support of the judgment.
(Ibid.) We affirm, if substantial evidence supports the judgment. (Ibid.; People v. Kelly (2007) 42 Cal.4th 763, 787-788.)
DISCUSSION
A. Substantial Evidence Supported the Conviction Although it has since been repealed, the law with respect to the prohibition of a felon's possession of live ammunition at the time of Abram's alleged crime stated: "No person prohibited from owning or possessing a firearm . . . shall own, possess, or have under his or her custody or control, any ammunition or reloaded ammunition." (Former § 12316, subd. (b)(1).) Under subdivision (2) to that provision, "ammunition" is further defined as "any bullet, cartridge, magazine, clip, speed loader, autoloader, or projectile capable of being fired from a firearm with a deadly consequence. [It] does not include blanks." (Former § 12316, subds. (b)(2).)
Sufficient circumstantial evidence that ammunition is "live" and not blanks, may include evidence that the defendant possessed bullets of a particular caliber, the particular 3 caliber corresponds to a gun that can fire live ammunition, the ammunition itself appeared "live," and a reasonable inference based on the manner in which the officers treated the ammunition with the "utmost gravity" and after carefully collecting, separating, and describing it was that the ammunition was live. (In re Arcenio V. (2006)
141 Cal.App.4th 613, 616 (Arcenio); citing Khamphouy S. (1993) 12 Cal.App.4th 1130, 1135 (Khamphouy).) The state fails to present sufficient evidence that ammunition is "live" when it fails to provide testimony that the rounds were removed for "safety purposes" or that an officer believed the rounds were live, and the trial court does not inspect the rounds. (See Arcenio, supra, at pp. 616-617.)
Here, on redirect examination, the prosecution directly asked if Ballardo examined the rounds and, then, if each round had bullets in the cartridge. Ballardo replied that he did look at the rounds, the bullet was in the cartridge, and the primers appeared not to have been struck. Thus, the state presented direct evidence that the rounds were live in the form of opinion testimony from the officer who examined them. (See Arcenio, supra, 141 Cal.App.4th at p. 616.) Ballardo also stated he recognized the rounds in question as being Vietnam War era "carbine" rounds. This was circumstantial evidence suggesting that the rounds were of a particular caliber and that they corresponded to a gun that fires live ammunition. (See Khamphouy, supra, 12 Cal.App.4th at p. 1135.) Ballardo's testimony qualifies as substantial evidence from which a reasonable trier of fact could find Abram was, in fact, a felon in possession of live ammunition. (Ibid., see also People v. Zavala (2005) 130 Cal.App.4th 758, 766 [noting that "the testimony of a single witness 4 is sufficient evidence to support [a] verdict"].) Therefore, the record presents substantial evidence to support Abram's conviction.
B. Due Process Abram also contends that because the evidence did not support his conviction of being a felon in possession of live ammunition, his conviction violated his right to due process under the 14th Amendment to the U.S. Constitution. Because we reject Abram's initial contention and conclude that substantial evidence did support his conviction of being a felon in possession of live ammunition, we need not determine whether the conviction violated his due process.
DISPOSITION
The judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
O'ROURKE, J.
IRION, J.
Cites, in this corpus
- People v. Kelly S049973 · 2007-12-06
- People v. Zavala D044321 · 2005-06-27
- People v. Khamphouy S. D016240 · 1993-01-26
- People v. Johnson Crim. 20710 · 1980-02-29