Opinion
D071728
11-02-2017
THE PEOPLE, Plaintiff and Respondent, v. JESSE CHRIS BERNARDO, Defendant and Appellant.
Boyce & Schaefer and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCS287470) APPEAL from a judgment of the Superior Court of San Diego County, Theodore M. Weathers, Judge. Affirmed. Boyce & Schaefer and Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Jesse Chris Bernardo of robbery (Pen. Code,§ 211; count 1), assault with a semiautomatic firearm (§ 245, subd. (b); count 2), and carrying a concealed firearm in a vehicle (§ 25400, subd. (a)(1); count 3). Bernardo appeals challenging the sufficiency of the evidence for his conviction on count 3, having a concealed firearm in a vehicle. Bernardo contends that the firearm was not substantially concealed because it was partially visible in an open bag on the front passenger seat of the vehicle. We reject this contention and affirm the judgment.
All further undesignated statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2016 Bernardo entered a convenience store and robbed the clerk at gunpoint. After taking money from the counter that the clerk had removed from the cash register, Bernardo fled in a white Mitsubishi car. The victim photographed Bernardo and the getaway vehicle. The store's surveillance cameras recorded the robbery.
National City Police Detective Daniel Nagle determined Bernardo's car had been registered to an address in Spring Valley. While driving there, Detective Nagle saw and followed Bernardo's car to a parking lot. Other officers, including San Diego County Sheriff's Deputy Jason Udan, arrived and arrested Bernardo. The arrest took place about 30 to 35 minutes after the robbery and about two or three miles from the convenience store.
Deputy Udan testified that upon approaching Bernardo's vehicle, he saw an open bag on the passenger seat. Looking more carefully through the car window, he noticed a handgun inside the bag. In examining a close-up picture of the bag, Deputy Udan further testified that he could see the handle, trigger, trigger guard, and the slide of the gun. However, the exhibit also shows that the barrel and hammer were concealed inside the bag. Deputy Udan photographed the arrest scene and Bernardo's vehicle. The jury saw five such photographs showing the partially concealed gun.
DISCUSSION
I. SUBSTANTIAL EVIDENCE SUPPORTS
THE CONCEALED FIREARM CONVICTION
A. Elements of the Crime
Under section 25400, subdivision (a)(1), a person is guilty of carrying a concealed firearm when "the person . . . [c]arries concealed within any vehicle that is under the person's control or direction any pistol, revolver, or other firearm capable of being concealed upon the person."
"Conviction under the statute requires proof that the 'defendant carried within a vehicle a firearm capable of being concealed on the person,' the 'defendant knew the firearm was in the vehicle,' the 'firearm was substantially concealed,' and the 'vehicle was under the defendant's control or direction.'" (People v. Aguilar (2016) 245 Cal.App.4th 1010, 1017.)
Only partial concealment of a firearm is required for a conviction under section 25400, subdivision (a)(1). (People v. Hale (1974) 43 Cal.App.3d 353, 356 [construing identical provisions of former section 12025].)
Subdivision (a) of section 25400 continues former section 12025, subdivision (a) without substantive change. (See Cal. Law Revision Com. com, 51D, pt. 3, West's Ann. Pen. Code (2012 ed.) foll. § 25400, p. 196.)
B. Bernardo's Contention
Here, Bernardo only challenges the third element, asserting there was insufficient evidence that the gun was substantially concealed because the gun was partially visible inside of a bag that was on the car's front passenger seat.
C. The Standard of Review
Where a defendant challenges the sufficiency of the evidence supporting a conviction, our task is to review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) It is not our function to reweigh the evidence (People v. Ochoa (1993) 6 Cal.4th 1199, 1206) and reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Thomas (1992) 2 Cal.4th 489, 514.)
D. Substantial Concealment
People v. Wharton (1992) 5 Cal.App.4th 72 is instructive on the issue of substantial concealment. There, the appellant was convicted of carrying a concealed dirk or dagger. (Id. at p. 74.) He appealed, arguing insufficient evidence of concealment because part of the weapon was protruding from his pocket. The Wharton court affirmed the conviction, holding, "Only substantial concealment is required. [Citation.] 'A defendant need not be totally successful in concealing a [weapon] to be guilty of [a violation].'" (Id. at p. 75.)
Here, Bernardo contends that his gun was not substantially concealed. Asserting "[t]he photos introduced to prove concealment do not depict it," Bernardo contends that evidence of a partially visible gun inside of a bag is insufficient to support a finding of substantial concealment. We disagree.
Viewing the evidence in the light most favorable to the judgment, there is sufficient evidence of substantial concealment. The jury saw five photographs depicting the gun inside a bag in the car. Exhibit 20, a close-up of the inside of the bag, shows the handle and part of the slide, but the gun's barrel and hammer are concealed. Even though the handle and slide were partially visible, main components of the weapon—the barrel and hammer—were hidden in the bag; therefore, the gun was "concealed" within the meaning of section 25400, subdivision (a)(1). (See People v. Koehn (1972) 25 Cal.App.3d 799, 802 (Koehn) [officer looking through the windshield saw "handle of a pistol lying on the floorboard"]; People v. Linden (1960) 185 Cal.App.2d 752, 757 (Linden) [officer using a flashlight saw the "butt of a revolver protruding from beneath two pillows"].)
Koehn and Linden involved former section 12025, subdivision (a), which was continued in section 25400, subdivision (a) without substantive change. --------
Partial concealment of a firearm "when done in such a fashion as to make the weapon readily available for use as a firearm, presents a threat to public order comparable to concealment of the entire firearm." (People v. Hale, supra, 43 Cal.App.3d at p. 356.) Here, the gun was in an open bag on the front passenger seat, making the gun readily available for use as a firearm, whether or not the gun was entirely or partially concealed. Bernardo would have only had to reach into the bag to use the gun as contemplated by Hale. There was substantial evidence of concealment.
DISPOSITION
The judgment is affirmed.
NARES, J. WE CONCUR: McCONNELL, P. J. IRION, J.