Opinion
E072110
02-24-2020
THE PEOPLE, Plaintiff and Respondent, v. VINCENT MARTIN DELAROSA, Defendant and Appellant.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Daniel Rogers and Christopher P. Beesley, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV18001396) OPINION APPEAL from the Superior Court of San Bernardino County. Elia V. Pirozzi, Judge. Affirmed. Erica Gambale, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, Vincent Martin Delarosa, was charged by information with being a felon in possession of a firearm, tried by a jury, and convicted. (Pen. Code, § 29800, subd. (a)(1).) The sentencing court sentenced defendant to three years in prison, doubled to six years due to a prior strike offense.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues there was insufficient evidence to convict him of the crime of being a felon in possession of a firearm. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On November 21, 2017, Thomas G. went to the Department of Motor Vehicles to register his car. When he was done, he placed the registration information in his glove box. The glove box did not contain a gun at that time.
Later that day, Thomas G. picked up defendant and another passenger in the same car. Thomas G. drove all three of them to a casino. As the three of them were walking towards the casino, defendant asked Thomas G. whether he could return to the car to put something in the glove box. Thomas G. gave defendant the car keys, and defendant walked back to the car as the other two men kept walking to the casino.
Later that night, around 10:00 p.m., Officer Mike Martinez saw Thomas G. driving the car with no license plates. Officer Martinez decided to pull the car over. As he was doing so, Officer Martinez saw the person in the front passenger seat, later identified as defendant, lean forward towards the dashboard and move his arms and shoulders. Nobody else in the car moved. Thomas G. also heard defendant exclaim, "Are you kidding me?" as the trio was being pulled over.
Officer Martinez ordered all three men to exit the car. Officer Martinez patted down defendant, discovering an etching tool which could be used to "punch" windows, a key-ring containing shaved keys, black latex gloves, and a methamphetamine pipe. Officer Martinez then asked Thomas G. whether the registration was in the glove box. Thomas G. indicated that it was. Thomas G. did not appear worried or nervous when he indicated that the registration was in the glove box.
Officer Martinez then opened the glove box, where he discovered a loaded .45-caliber handgun with the name "Lucy" etched on the side. Officer Martinez noted that defendant also had the name Lucy tattooed on his left arm. At trial, defendant's mother testified that her name is Lucy and defendant's great-grandmother's name was also Lucy.
Officer Martinez then requested to look through the back passenger's phone. The back passenger reluctantly permitted him to do so. The phone contained pictures of some quantity of methamphetamine and a bulletproof vest.
Officer Martinez placed all three men under arrest and transported them to the police station, where he questioned all three regarding who owned the gun. Later forensic analysis was unable to recover any latent fingerprints from the handgun; however, such prints are only retrieved about 50 percent of the time.
The San Bernardino County District Attorney's office charged defendant with being a felon in possession of a firearm. (§ 29800, subd. (a)(1).) The information also alleged that defendant had two prior prison offenses pursuant to section 667.5, subdivision (b), and one prior strike offense pursuant to sections 667, subdivisions (b) through (i) and 1170.12, subdivisions (a) through (d).
A jury convicted defendant of the sole count, and defendant admitted to the prior prison offenses and prior strike offense.
The sentencing court imposed a sentence of three years, doubled due to the prior strike offense for a total term of six years. The court struck the prior prison offenses pursuant to section 1385.
Defendant timely appealed.
III. DISCUSSION
Defendant argues that there was insufficient evidence to support his conviction for being a felon in possession of a firearm.
When reviewing a sufficiency of the evidence claim, an appellate court determines whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Smith (2005) 37 Cal.4th 733, 738-739; People v. Johnson (1980) 26 Cal.3d 557, 578.) In doing so, we view the evidence in a light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from the evidence which supports the judgment. (Johnson, at p. 576, citing People v. Mosher (1969) 1 Cal.3d 379, 395.) "Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.) "We resolve all evidentiary conflicts and questions of credibility 'in favor of the verdict . . . .'" (People v. Brady (2018) 22 Cal.App.5th 1008, 1014, quoting People v. Cardenas (2015) 239 Cal.App.4th 220, 226-227.)
"Substantial evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value." (People v. Briscoe (2001) 92 Cal.App.4th 568, 585.) "'The uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.'" (People v. Duncan (2008) 160 Cal.App.4th 1014, 1018.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence." (People v. Stanley (1995) 10 Cal.4th 764, 792.) Circumstantial evidence may be sufficient on its own to prove guilt beyond a reasonable doubt. (Id. at p. 793.) Just because the circumstances may also reasonably support a different conclusion than the one drawn by the trier of fact does not warrant reversing the judgment. (Ibid.)
To prove a violation of section 29800, subdivision (a)(1), the People must show that (1) the defendant owned, purchased, received or possessed a firearm, (2) that the defendant knew that he or she owned, purchased, received or possessed a firearm, and (3) the defendant had previously been convicted of a felony. (CALCRIM No. 2510.) The parties stipulated that defendant had at least one prior felony conviction, so the People in this case only needed to prove the first two elements.
"Although the crime of possession of a firearm by a felon may involve the act of personally carrying or being in actual physical possession of a firearm . . . such an act is not an essential element . . . because a conviction of this offense also may be based on a defendant's constructive possession of a firearm." (People v. White (2014) 223 Cal.App.4th 512, 524, italics omitted.) "To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person." (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, disapproved of on other grounds in People v. Farwell (2018) 5 Cal.5th 295, 304, fn. 6.) "Thus . . . possession of a firearm does not necessarily require that the possessor be armed with it. For example, a convicted felon may be found to be a felon in possession of a firearm if he or she knowingly kept a firearm in a locked offsite storage unit even though he or she had no ready access to the firearm." (White, at p. 524.)
Defendant argues that there was insufficient evidence presented at trial to support a determination that he knew about the presence of the firearm, or that he had the right to control it. We disagree.
Substantial evidence supports defendant's conviction on the sole count of being a felon in possession of a firearm. Such evidence supports the jury's determination that defendant not only knew the firearm was in the glove box but that he actually possessed it. Thomas G. testified that the firearm was not in the glove box prior to the time he picked up defendant. Thomas G. also testified that defendant asked to place something in the glove box sometime after that, and Thomas G. allowed him to do so. Thomas G. gave defendant the car keys and defendant walked back to the car to put something in the glove box after they arrived at the casino. The firearm itself had the name Lucy etched into it, which was also tattooed on defendant's arm and was the name of both his mother and great-grandmother. Defendant also had a tool that could be used for metal engraving, demonstrating that defendant had the means to etch the name into the firearm himself.
Defendant and Thomas G.'s disparate reactions to the traffic stop further indicate that defendant knew about the presence of the firearm. Defendant was exasperated while the trio was being pulled over, exclaiming "Are you kidding me?" Officer Martinez also saw defendant lean toward the dashboard and move his arms and shoulders before Officer Martinez was able to speak to the people in the car. Thomas G., on the other hand, was calm when he directed Officer Martinez to the registration in the glove box, which might have indicated to the jury that he did not know it contained a firearm.
Defendant argues that his conviction rests upon insufficient evidence because it is largely based on the testimony of Thomas G., which defendant argues is untrustworthy. In particular, defendant points out that Thomas G. also had prior convictions and therefore had a motive to lie and say the gun belonged to defendant. However, on review "[w]e do not reweigh evidence or reassess a witness's credibility." (People v. Kopp (2019) 38 Cal.App.5th 47, 69.) To the extent the jury found Thomas G.'s testimony credible, we are bound by that conclusion.
Moreover, there was sufficient evidence to convict defendant even without Thomas G.'s testimony. The fact that the firearm was etched with the same name defendant had tattooed on his arm, which was also the name of his mother and great-grandmother, together with defendant's observed behavior by Officer Martinez at the time of the stop and defendant's close proximity to the firearm, would be sufficient for the jury to conclude that the firearm belonged to defendant. Thomas G.'s testimony that the firearm was not in the glove box earlier that day and that defendant asked to put something in the glove box corroborates this conclusion, but is not necessary.
Accordingly, we conclude that there was sufficient evidence to convict defendant of the charged crime.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: SLOUGH
Acting P. J. MENETREZ
J.