Filed 2/3/21 P. v. Pelayo CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E074077
v. (Super.Ct.No. RIF1506165)
CARLOS ALBERTO PELAYO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. John D. Molloy, Judge.
Affirmed.
Law Office of Zulu Ali & Associates and Zulu Ali for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Kristen Chenelia
and Matthew Mulford, Deputy Attorneys General, for Plaintiff and Respondent.
1 Law enforcement found 784 marijuana plants and 18 firearms on Carlos Alberto
Pelayo’s property, and prosecutors tried him for felony cultivating marijuana (Health &
Saf. Code, § 11358, unlabeled statutory citations refer to this code). A jury found him not
guilty of cultivating marijuana but convicted him of the lesser-included misdemeanor
offense of simple possession of more than 28.5 grams of marijuana. (§ 11357, subd.
(b)(2).)
Pelayo challenges his conviction because the trial judge admitted evidence about
the firearms found at his home. Law enforcement found two revolvers and two rifles in
his bedroom and 14 assorted firearms stored in a locked shipping container in his yard.
The trial judge admitted evidence (photographs and testimony) about all the weapons
based on the prosecutor’s representation that they had all been found loaded, which he
concluded tended to show Pelayo knew he needed to protect his marijuana crop.
However, trial testimony revealed all the firearms were in fact unloaded. At that
point, the trial judge proposed to strike the evidence, but defense counsel declined and
elicited testimony that one of the firearms was stolen and six others were unregistered. At
the close of the prosecution case, defense counsel renewed his relevance objection to the
firearm evidence, but the trial judge refused to strike it at that point. At closing, the
prosecution used the fact that some weapons were not legally in Pelayo’s possession to
support the cultivation charge but conceded the weapons were not loaded.
2 Pelayo argues the prosecutor committed misconduct by representing that the
firearms were loaded and the trial judge erred by admitting the firearms evidence over his
relevance objection. We conclude the prosecutor didn’t commit misconduct by making a
factual error which she then admitted and avoided repeating in closing argument. We also
conclude the trial judge didn’t abuse his discretion by allowing evidence about the four
unloaded firearms found in Pelayo’s bedroom. As for the evidence he possessed 14
additional unloaded firearms stored in a locked shipping container, we conclude any error
was harmless because Pelayo was convicted of the lesser-included possession
misdemeanor, not the cultivation felony, and the evidence of possession was
overwhelming.
Pelayo also argues the trial judge should have granted his motion for an acquittal
because substantial evidence didn’t support finding him guilty of either cultivation or
possession with intent to sell. This objection is not well taken. Pelayo was not tried for
possession with intent to sell and was acquitted on the cultivation charge. Construing the
argument broadly, we conclude substantial—indeed overwhelming—evidence supported
the simple possession conviction.
We therefore affirm the judgment.
I
FACTS
In August 2015, sheriff’s investigators observed marijuana beds at Pelayo’s
Moreno Valley home and obtained a search warrant to investigate. When they entered the
3 property, they found Pelayo walking away from one of six irrigated plant beds, which
they later determined held 784 marijuana plants. There was a hose with water running
from it on the ground nearby.
Investigators didn’t find anyone else on the property. They found evidence
someone was living in the master bedroom, including mail addressed to Pelayo. The
investigating officer said the other bedrooms didn’t appear to be occupied. The
investigators also recovered 18 unloaded firearms, four of them in the master bedroom
and the rest locked inside a shipping container outside the home.
The Riverside County District Attorney’s office charged Pelayo with one felony 1 count of planting, cultivating, harvesting, drying, and processing marijuana (§ 11358)
and one felony count of possessing marijuana with intent to sell (§ 11359). After a
preliminary hearing, the district attorney filed an information charging Pelayo with one
count of felony cultivating marijuana.
Before trial, defense counsel moved to exclude evidence of the firearms. The
prosecutor opposed, arguing an expert witness would testify that illegal marijuana
growers often possessed loaded firearms to protect their crops.
The trial judge concluded evidence that Pelayo possessed a “number of firearms,
all of them loaded” was probative of his guilt on the cultivation charge. He noted
possession of loaded firearms could be relevant to establish someone at the home sought
to protect a marijuana crop against theft. He also concluded the evidence was unlikely to
1 For readability, we will refer to this as the cultivating marijuana count.
4 significantly prejudice Pelayo. He ruled both parties could discuss the firearms and the
inferences the jury could draw from them.
At trial, a criminalist said she had tested some of the plants and confirmed they
were marijuana. An expert investigator said he believed the plants were cultivated for
sale, could produce a resale value of more than $700,000, and marijuana growers often
have guards or arm themselves to protect their crops from theft.
Regarding the firearms, an investigator said they found four weapons—two
revolvers and two rifles—and ammunition in the master bedroom. These firearms were
not secured in a gun safe or display case. He said the revolvers and one of the rifles were
found unloaded. However, he testified that the other rifle was loaded when they found it.
Showing the investigator a photograph of the rifle next to some ammunition, the
prosecutor asked if “the ammunition located next to the rifle [was] the exact ammunition
that was recovered from inside the rifle? Meaning was it loaded?” The investigator said,
yes.
The deputies found another 14 weapons locked inside a large metal CONEX
shipping container located about 10 yards from the house. The container was padlocked,
and all the firearms were unloaded. Eight of them were stored inside an oven inside the
shipping container.
On cross-examination, defense counsel asked whether all the weapons except for
the single rifle had been unloaded. The investigator responded, “No, zero. I did not find
not one weapon that was loaded. They were all unloaded, sir.” Defense counsel also
5 elicited testimony that one of the firearms had been stolen and six others were
unregistered.
During her redirect, the prosecutor sought to clear up confusion about the
photograph of the rifle and ammunition. She again asked whether the ammunition
pictured next to the rifle had been found inside the rifle. The investigator responded, “The
ammo was inside the bag, and the bag was next to the—to the rifle, but no, there was not
a round in the chamber, no.” The investigator also said the deputies had found loose
ammunition but nothing loaded in a magazine or drum.
During a sidebar conference that wasn’t reported, the trial judge told the parties he
would sustain a relevance objection to the firearms evidence at that point. However,
defense counsel withdrew his relevance objection because he had referred to the firearms
in opening argument, claiming they were part of Pelayo’s gun collection. The trial judge
later summarized the discussion. “Pretrial, I had ruled that the firearms were coming in
because I was informed by [the prosecutor] that all of the firearms were loaded. It turns
out that the officer testified that none of the firearms were loaded. That was why I made
my ruling. We then found ourselves after opening statement where you had already—you
had indicated your guy was a gun collector, and all of the weapons were indeed—well,
the [investigator] testified all of the weapons were indeed unloaded. I asked you what you
wanted to do, and I told you at sidebar that if you wanted to object to relevance, I would
sustain it. But it now supported your opening statement . . . [¶] . . . [¶] and you withdrew
it at that time.” Defense counsel agreed with this characterization.
6 Despite making that choice previously, defense counsel renewed his objection at
the close of the prosecutor’s case and asked that the evidence be stricken as irrelevant.
The prosecutor opposed this request but acknowledged she had been mistaken in
believing the weapons were loaded. She said the investigator’s contrary testimony had
surprised her and apologized for the factual mistake. Still, she noted defense counsel had
elicited testimony that one of the weapons was stolen and others were unregistered. She
argued that testimony was relevant to her expert’s opinion that the weapons were linked
to cultivation.
The trial judge said he would have excluded the evidence about the firearms in the
outdoor container if he had known before trial that the weapons were unloaded. However,
he concluded defense counsel could effectively counter the evidence by arguing, “Hey,
look. Let’s talk about this. How is this available for the drug trade? It’s in a CONEX box
with a padlocked door, shut in an oven, shoved in a suitcase. That makes all the sense in
the world. Somebody’s here to hold me up. Hold on, guys. I gotta open my CONEX box,
pull out the oven, open this case, and load one of these. Now let’s go.” The trial judge
therefore overruled defense counsel’s renewed objection and refused to strike the
evidence.
In closing, the prosecutor argued Pelayo had been caught cultivating a large
marijuana crop outside his home and his participation had been proven by the fact that he
was walking away from a running hose when the sheriff’s deputies arrived. She argued
the 18 firearms were for protection of the crops but acknowledged her error during the
7 opening statement in which she had said the firearms were all loaded. She predicted
Pelayo’s counsel would disagree he had used unloaded firearms to protect a crop, but she
argued the presence of the six unregistered firearms and the stolen weapon, indicated he
meant to use them to avoid being robbed. She also argued the extensive gardens,
irrigation, fence posts, potting, and electrical wiring demonstrated Pelayo was cultivating
the crops. She said the weapons and ammunition in Pelayo’s bedroom were important
evidence because they were maintained in a way that made it clear they were there for
Pelayo to use defending himself.
Defense counsel argued the prosecutor had not proven Pelayo’s guilt because her
witnesses had not established Pelayo owned the property or how long he had lived in the
house by producing a deed. He argued there was no evidence of sales records, trafficking
activities, or drug paraphernalia in the home. Regarding the firearms, defense counsel
argued the prosecutor’s error in believing the weapons were loaded underscored the
weaknesses in her case. He pointed out that the unloaded weapons—many of them stored
outside the house—couldn’t be used to protect the crops.
The jury found Pelayo not guilty of marijuana cultivation but guilty of the lesser-
included misdemeanor offense of possessing more than 28.5 grams of marijuana. (Health
& Saf. Code, § 11357, subd. (b)(2).) A second trial court judge sentenced Pelayo to three
years of summary probation.
8 II
ANALYSIS
A. Admission of Firearms Evidence
Pelayo argues the prosecutor committed misconduct by introducing evidence that
the firearms found at his home were loaded. He also argues the trial judge erred when it
denied his motion to exclude evidence about the firearms as irrelevant and unduly
prejudicial.
1. Prosecutorial misconduct
A prosecutor’s use of deceptive or reprehensible methods to persuade the jury is
misconduct and requires reversal when it infects the trial with such “‘unfairness as to
make the resulting conviction a denial of due process.’” (People v. Friend (2009) 47
Cal.4th 1, 29; People v. Cunningham (2001) 25 Cal.4th 926, 1000.)
When a misconduct claim is based on the prosecutor’s comments before the jury,
‘“the question is whether there is a reasonable likelihood that the jury construed or
applied any of the complained-of remarks in an objectionable fashion.’” (People v.
Friend, supra, 47 Cal.4th at p. 29; accord, People v. Rivera (2019) 7 Cal.5th 306.)
Prosecutors may not knowingly present false evidence and must correct any falsity of
which they are aware. (People v. Seaton (2001) 26 Cal.4th 598, 647.)
Here, the prosecutor’s conduct resulted from error and she corrected the error as
soon as it became evident at trial. The prosecutor initially believed the weapons were
loaded and thought the evidence would support her belief. She appears to have told the
9 jury as much in her opening statement, which was reported but not transcribed. There’s
no indication the prosecutor knew the evidence would actually be to the contrary. Indeed,
the investigator at first testified that one rifle in Pelayo’s possession had been loaded
before deputies unloaded it to render it safe for seizure.
It was only on cross-examination that the investigator clarified he was speaking
about the general procedure for securing weapons, but that none of the weapons in
Pelayo’s possession had in fact been loaded. The prosecutor then immediately confirmed
the direct testimony was mistaken and acknowledged her factual error in closing
argument. By fully exploring, addressing, and correcting her initial error, the prosecutor
acted appropriately. (See People v. Seaton, supra, 26 Cal.4th at pp. 647-648.) Under
these circumstances, any misconduct when the prosecutor inadvertently relied on her
belief that the guns were loaded did not result in unfairness that denied due process.
Pelayo argues it was inappropriate for the prosecutor to rely on the testimony
elicited by defense counsel that some of the firearms were stolen and unregistered.
However, at that point the trial court had ruled the evidence was relevant and admissible.
Moreover, as we will discuss in part II.A.2., it’s accepted that a defendant’s possession of
firearms is relevant to show they were in possession of illegal narcotics. (People v. Bland
(1995) 10 Cal.4th 991, 1003 (Bland).) The prosecutor’s argument about the evidence was
therefore not misleading and doesn’t support a claim of prosecutorial misconduct.
10 2. Relevance of the firearms evidence
Evidence is relevant if it has “any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action.” (Evid. Code
§ 210, italics added.) That makes relevance a low bar. (People v. Villa (2020) 55
Cal.App.5th 1042.) Trial judges have discretion to exclude relevant evidence where its
probative value is substantially outweighed by the probability that admitting the evidence
will unduly prolong the proceeding, prejudice the opposing party, confuse the issues, or
mislead the jury. (Evid. Code, § 352; People v. Tran (2011) 51 Cal.4th 1040, 1046-1049.)
However, evidence is prejudicial not because it’s damaging to a defendant’s case, but
because it “‘uniquely tends to evoke an emotional bias’” without regard to its relevance.
(People v. Kipp (2001) 26 Cal.4th 1100, 1121.) We review the trial court’s rulings on the
admissibility of evidence for abuse of discretion. (People v. Williams (2008) 43 Cal.4th
584, 633-635.)
In Bland, our Supreme Court explained that finding firearms near illegal drugs can
be relevant to drug charges. A jury found Bland guilty of possession of cocaine base for
sale based on finding 17.95 grams of rock cocaine in his room along with drug
paraphernalia commonly associated with the sale or manufacture of cocaine base. The
jury also found Bland was armed while committing the drug possession offense, for
purposes of imposing an enhancement, based on finding an unloaded semiautomatic rifle
in the same room. (Bland, supra, 10 Cal.4th at p. 1003.) The Court explained “the rifle’s
close proximity to the drug cache, and its accessibility to defendant at any time while he
11 possessed the illegal drugs, supported the jury’s finding that defendant fell within the
statutory prohibition of being armed with an assault weapon in committing the felony
drug possession.” (Ibid.) Importantly for our case, the Court held “[i]t was reasonable for
the jury to infer from the proximity of the semiautomatic rifle to the drug cache that
defendant had the rifle available for his use to aid in the drug crime at some point during
his felonious drug possession.” (Id. at pp. 1003-1004.)
If the proximity of an unloaded weapon is sufficient to support a jury’s finding
that he possessed it to facilitate a drug crime, then the same kind of evidence clears the
low bar of relevance in this case. As in Bland, evidence that Pelayo was keeping firearms
near illegal drugs is relevant because doing so may support an inference that they exist
“to protect the defendant during a drug sale, to guard against theft of the drugs, or to ward
off police.” (Bland, supra, 10 Cal.4th at p. 1002.) Thus, introducing the evidence that
Pelayo kept weapons and ammunition close to hand supports an inference that he knew
his marijuana grow was illegal and that he might need to protect it from theft.
It’s important to note that the firearm in Bland was not loaded. It follows that a
jury may infer from possession of an unloaded firearm that a defendant knew they were
in possession of a controlled substance which they may need to protect, at least if
ammunition is available and accessible. And while evidence that a weapon was loaded
would strengthen the inference, it’s clear that proximity and availability are the key
factors. Here, Pelayo kept four firearms in his bedroom with a ready supply of
ammunition. The weapons were easily available to him if he was home and thieves
12 showed up to steal his crop. Under those circumstances, we can’t conclude the trial judge
abused his discretion. Pelayo has made no claim of prejudice that could outweigh the
probative value of this evidence.
The unloaded firearms locked away in a shipping container are a very different
matter. It’s hard to conceive of how that evidence could tend to make any element of the
possession count more likely. It might tend to support the cultivation count because a
larger scale drug operation could require a larger supply of weapons. In the end, though,
we conclude we don’t need to resolve the question whether the trial judge erred by
admitting the evidence of the stored and unloaded firearms. Even if he did err, Pelayo
would have to establish admitting the evidence prejudiced him, but there’s no basis for
concluding it’s reasonably probable Pelayo would have received a more favorable verdict
had the evidence been excluded. (People v. Price (1991) 1 Cal.4th 324, 429; People v.
Watson (1956) 46 Cal.2d 818, 836.)
The critical fact is the jury acquitted Pelayo of cultivating marijuana and instead
convicted him of the lesser-included misdemeanor offense of possession of more than
28.5 grams of marijuana. The contested firearm evidence was introduced for the purpose
of establishing primarily that Pelayo was in the illegal drug business and needed the
firearms to protect his crops against theft. The prosecutor argued the weapons were
important for Pelayo as a cultivator because they helped “protect the grow” and
established Pelayo “wasn’t just sitting there.” But the jury acquitted him of that charge
despite the evidence of the additional firearms.
13 The possession conviction, meanwhile, turned on evidence Pelayo had dominion
and control over the marijuana plants with knowledge they were illegal. (People v. Busch
(2010) 187 Cal.App.4th 150, 160; see also CALCRIM No. 2375.) The evidence
overwhelmingly supports the jury’s verdict on this count. Investigators testified they
found several beds containing 784 marijuana plants on the property where Pelayo lived.
An expert tested the plants and confirmed they were marijuana. The lead investigator
testified Pelayo was alone on the property when they conducted the search and they
found him tending to the plants. Pelayo appeared to be the only resident of the house. The
master bedroom was occupied, contained mail addressed to Pelayo at the address of the
house, and the other bedrooms were unoccupied. In addition, as we’ve discussed,
Pelayo’s bedroom contained four firearms in proximity to ammunition, which adds
support for finding Pelayo knew the plants to be marijuana. All of this evidence, taken
together, makes it exceedingly unlikely he would have received a more favorable verdict
had the trial judge excluded the evidence of the stored firearms.
B. Motion to Acquit and Sufficiency of the Evidence
Pelayo argues the trial court erred in denying his motion for a judgment of
acquittal under Penal Code section 1118.1 because there is insufficient evidence he
cultivated marijuana as required to be convicted under Health and Safety Code section
11358 or sold marijuana as required to be convicted under Health and Safety Code
11359. Pelayo argues the prosecution “failed to establish [he] was involved in any type of
marijuana cultivation, planting, harvesting, or processing” because they didn’t present a
14 deed for the property and the firearms evidence couldn’t support a finding that he was
guarding the marijuana crops because the weapons were unloaded.
It’s not clear why this argument matters today. The prosecution dropped the
possession for sale charge when it filed its information. And the jury found Pelayo not
guilty of cultivating marijuana. Instead, Pelayo stands convicted of simple possession of
more than 28.5 grams of marijuana, a violation of section 11357, subdivision (b)(2).
Evidence of cultivation, planting, harvesting, or processing, or sales is not required to
establish simple possession, so these arguments provide no basis for overturning the jury
verdict.
Construing Pelayo’s argument broadly, we conclude substantial evidence supports
the jury’s simple possession verdict. (People v. Staten (2000) 24 Cal.4th 434, 460 [we
review the whole record in the light most favorable to the judgment for evidence which is
reasonable, credible, and of solid value—such that “a reasonable trier of fact could have
found defendant guilty beyond a reasonable doubt”].)
Simple possession of marijuana, under Health and Safety Code section 11357,
requires dominion and control of more than 28.5 grams with knowledge of its presence
and restricted character. (People v. Busch, supra, 187 Cal.App.4th at p. 160; see also
CALCRIM No. 2375.) As we’ve already discussed, Pelayo resided on the property where
law enforcement found 784 marijuana plants. He was the only person on the property
when they executed the search, and he was tending to the marijuana plants by watering
them at the time. Inside the house, deputies found evidence that only Pelayo occupied the
15 home. A rational juror could conclude based on this evidence that Pelayo had dominion
and control over more than 28.5 grams of marijuana with knowledge of its restricted
nature. The fact that he maintained four firearms and ammunition in his bedroom
supports the inference that he knew the marijuana plants were illegal.
Pelayo argues someone else could have owned or rented the property and
controlled the marijuana crop. However, it isn’t our role on appeal to reweigh the
evidence and come to a different conclusion than the jury. The jury acted reasonably in
convicting Pelayo of simple possession of marijuana, and that is sufficient to uphold the
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.