Opinion
C084793
08-17-2018
THE PEOPLE, Plaintiff and Respondent, v. ZED LEVI KEYS, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. CR032835, CR034364)
A jury found defendant Zed Levi Keys guilty of, inter alia, unlawfully possessing an assault weapon. (Pen. Code, § 30605, subd. (a).) On appeal, defendant contends insufficient evidence supports the required finding that he reasonably should have known the rifle was an assault weapon. Disagreeing, we affirm.
Undesignated statutory references are to the Penal Code.
BACKGROUND
Defendant appeals from two cases, we discuss only facts pertinent the issue raised on appeal.
While conducting a probation search of defendant's home, an officer found nine guns including a "Norinco MAK 90 Sporter assault rifle, AK series," in defendant's bedroom. The MAK 90 had a "center fire, round thumb hole stop, capable of accepting a detachable magazine and [a] high capacity magazine." Attached to the MAK 90 were two detachable 30-round magazines. The two magazines were taped together on opposite ends, for quick reloading. Each magazine contained "some" rounds. Also found in defendant's bedroom were 11 rounds of ammunition appropriate for the MAK 90.
The Attorney General writes that the magazines were "either loaded into the MAK 90 assault rifle at the time of its discovery or found in the immediate vicinity of the assault rifle." But the officer testified that the magazines were "taped together" and "attached to the assault rifle." Where the sufficiency of the evidence is challenged on appeal, we review the record in the light most favorable to the judgment. (People v. Snow (2003) 30 Cal.4th 43, 66.) We assume the two magazines, taped together, were attached to the rifle.
A woman in the house told the officer defendant had nine guns in his bedroom. Defendant interjected that he was not on probation anymore and was allowed to have them.
As relevant here, defendant was charged with unlawfully possessing an assault weapon. At trial, the jury was instructed, using CALCRIM No. 2560, that to prove the assault weapon count, the people must prove: "One, the defendant possessed an assault weapon, specifically a Norinco MAK 90 AK-47. [¶] Two, the defendant knew that he possessed it. [¶] And three, the defendant knew or reasonably should have known that it had characteristics that made it an assault weapon." The instruction continued: "A semi- automatic center fire rifle that does not have a fixed magazine and has a thumb hole stock is an assault weapon."
The jury found defendant guilty of unlawfully possessing an assault weapon. (§ 30605, subd. (a).)
DISCUSSION
On appeal, defendant contends insufficient evidence supported the finding he knew or reasonably should have known the rifle was an assault weapon. He argues nothing he did or said indicated actual knowledge, and that knowledge of the weapon's specific characteristics (beyond a mere firearm) cannot be reasonably inferred solely from his possession of it. He avers no evidence showed how long he had the MAK 90, whether he had ever held it, or whether he was even ever in the same room as it.
A section 30605, subdivision (a) conviction requires "knowledge of, or negligence in regards to, the facts making possession criminal." (In re Jorge M. (2000) 23 Cal.4th 866, 887 [construing § 12280, subd. (b), precursor to § 30605].) The People must prove defendant "knew or reasonably should have known the firearm possessed the characteristics" of a prohibited assault weapon. (Ibid.) One who possesses an assault rifle is not exempt from punishment merely because he did not trouble to acquaint himself with the gun's salient characteristics. (Id. at p. 888.) Someone with "substantial and unhindered possession" of the assault weapon is expected to know if it is a prohibited model or has features making it prohibited. (Ibid.) But "one who was in possession for only a short time, or whose possession was merely constructive, and only secondary to that of other joint possessors, may have a viable argument for reasonable doubt as to whether he or she either knew or reasonably should have known the firearm's characteristics." (Ibid.)
Former section 12280, subdivision (b) was repealed and reenacted without substantive change as section 30605. (Stats. 2010, ch. 711, § 4 [repealing § 12280]; Stats. 2010, ch. 711, § 6 [adding § 30605].) --------
As we have indicated, here we review the record in the light most favorable to the judgment to determine whether it discloses substantial evidence. (People v. Snow, supra, 30 Cal.4th at p. 66.) Substantial evidence is evidence that is "reasonable, credible and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (Ibid.) From the evidence, we draw all inferences supporting the jury's verdict. (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Before the judgment can be set aside for insufficient evidence, "it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the jury." (People v. Hicks (1982) 128 Cal.App.3d 423, 429.)
Here, substantial evidence supports the conviction. A jury could reasonably conclude defendant had substantial and unhindered possession of the MAK 90. Defendant effectively claimed ownership of the MAK 90, along with the other guns in his bedroom, by telling the police he had a right to possess the weapons. And indeed, the MAK 90 was found in his bedroom, along with eight other guns and extra MAK 90 ammunition. (See In re Jorge M., supra, 23 Cal.4th at p. 870 [gun found on cabinet a few feet from minor's bed].) That defendant was reasonably aware of the rifle's qualifying features is further evidenced by the fact the qualifying features, i.e., a semi-automatic center fire rifle with a detachable magazine and a thumbhole stock, were readily discernible from an inspection of the rifle.
These facts are sufficient for the jury to reasonably conclude defendant knew, or at a minimum reasonably should have known, the rifle was an assault weapon.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, Acting P. J. We concur: /s/_________
Hoch, J. /s/_________
Renner, J.