Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County, Super.Ct. No. RIF127769, W. Charles Morgan, Judge. Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Peter Quon, Jr., Supervising Deputy Attorney General, and Karl T. Terp, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
King, J.
A jury convicted defendant of possession of a firearm by a convicted felon (count 1—Pen. Code, § 12021, subd. (a)), possession of an assault weapon (§ 12280, subd. (b)), and possession of ammunition by a prohibited person (§ 12316, subd. (b)), all committed for the intent to benefit a criminal street gang (§ 186.22, subd. (b)(1)). On appeal, defendant contends insufficient evidence supports his convictions. We find the verdicts supported by substantial evidence and, therefore, affirm the judgment below.
All further statutory references are to the Penal Code unless otherwise indicated.
I. FACTS AND PROCEDURAL HISTORY
Nine members of a Police and Corrections Team (PAC) conducted a parole search of defendant’s residence at 6:00 p.m. on the night of December 29, 2005. It was dark outside, so the officers used flashlights as they took up positions surrounding the house prior to knocking on the front door. Detective Kevin Townsend, a member of the PAC team and a Riverside police officer, took position at the rear of the 500 to 700 square foot home. Approximately one to two minutes prior to an announcement of the team’s presence, Townsend heard the sound of someone running inside the house, from the front to the back door of the house and then to the front again. The home’s laundry room is immediately adjacent to the back door where Townsend was positioned.
Officers entered the home, encountering four occupants: defendant; his mother, Anita Martinez; his grandmother, Julia Jaramillo; and his cousin, Raymond Gonzalez. Martinez was at the front door. Gonzalez was in the living room. Jaramillo was in the bedroom. Officers found defendant behind the bedroom door. Jaramillo and Gonzalez were only visiting, having arrived approximately two hours before the raid. Jaramillo brought only a purse with her to the home, while Gonzalez brought nothing with him.
Defendant had been living in the home with his mother and 10-year-old brother for a month. His mother and brother slept in the bedroom, while defendant slept in the living room. Defendant’s possessions were stored in two plastic totes in the living room.
Adam Rudolph, an agent with the United States Bureau of Alcohol, Tobacco and Firearms, searched the laundry room at the back of the house. On a lower shelf, on top of some clothing behind an empty laundry basket, Rudolph discovered an Uzi loaded with a 32-round capacity magazine containing 20 live cartridges and a Ruger .45-millimeter caliber handgun loaded with six rounds. The 20 rounds contained in the Uzi magazine were of three different types of nine-millimeter ammunition. Two of the cartridges were hollow point bullets which are designed to inflict greater damage to the human body. An Uzi is a semiautomatic gun designed in Israel. The Uzi discovered by Rudolph had been altered to render the weapon fully automatic. The alterations included a barrel which had been cut down from 16 to 10 inches, the removal of the receiver bolt in the trigger grip, and other parts which had been removed. As altered, the weapon was capable of firing from 13 to 14 rounds a second, or 800 to 850 rounds per minute. Uzis are designed to kill human beings; they are not used for hunting. Martinez admitted she had done laundry that day, but had never before seen the guns found by the officers.
Probation Officer Gilbert Perez searched the front room. On the ground, between the totes containing defendant’s possessions, Perez found an empty 20-round capacity nine-millimeter magazine. That magazine also fit the Uzi.
Steven Christiansen, a Riverside police officer and gang expert, also participated in the search of defendant’s home. On the steps to the back door, he found one, nine-millimeter cartridge. The cartridge would fit either magazine found at the home and could be fired by the Uzi. Christiansen also found what he believed was gang graffiti in the interior of the home. On the living room wall was written “CBR,” which stood for Casa Blanca Riva, a violent criminal gang operating in the area of defendant’s residence. He also found graffiti in the laundry room.
Christiansen testified that he believed defendant was a current member of Casa Blanca Riva, in particular, the Vagabundos faction, and that his possession of the weapons was for the benefit of that gang. He came to this conclusion after reviewing defendant’s criminal history, past contacts with other officers, the graffiti found in the home, and by virtue of defendant’s tattoos. Defendant had claimed membership in Casa Blanca Riva, Vagabundos in contacts with officers on the following dates: January 5, 1995, February 18, 1995, December 1997, August 1998, March 2000, January 2003, March 2003, and May 2003. Defendant also claimed association with that gang when booked in the current matter in December 2005. Defendant had one prior conviction for possession of phencyclidine (PCP) for sale which he admitted was committed for the benefit of Casa Blanca Riva, Vagabundos.
Additionally, defendant had a number of gang related tattoos. One read “WHR,” which, according to Christiansen, stood for White House Riva, an English translation of defendant’s gang, Casa Blanca Riva. Another read “13,” which signifies a Hispanic gang member hailing from Southern California. “Inland Empire” was tattooed across defendant’s stomach, which is a common marking worn by gang members from the Inland Empire region. Defendant had “Vagabundos” inked across his back, “Casa Blanca” on the back of his head, “CB” on his left forearm, and “CB” on his left elbow.
During the investigation, one officer noted that several suspected gang members were hanging out in front of the residence. Ray Gonzalez, defendant’s cousin who was also found inside the house, was an admitted member of Casa Blanca Riva, though of the Demons faction. Christiansen testified that possession of those weapons would benefit the gang because they could be used to defend gang members against their rivals, intimidate the public against incriminating gang members, conduct reprisals against the gang’s rivals, and increase the amount of fear of and, hence, respect for, defendant and his gang.
Defendant’s father, Jerry Penunuri, Sr., and stepmother, Helen Penunuri, testified that defendant lived with them in Cathedral City from February to November 2005. Jerry testified that defendant worked for he and his wife’s masonry company full time for six to nine months during this period; though Helen indicated it was only for about a month. Both testified they never saw any indication of gang activity by defendant. In essence, they reported that defendant had come to live with them to get away from his former gang affiliations. Both testified that after defendant left their company he worked for a friend until a few weeks prior to his moving out of their home in November 2005. Defendant left the Penunuri home involuntarily when Helen requested that he leave because he was unemployed and she could not deal with the stress of her mother’s death.
For ease of reference, and with no disrespect, Jerry Penunuri, Sr. and his wife Helen Penunuri will be referred to by their first names.
Both Penunuris testified that defendant had come to live with them and work for them on several previous occasions going back at least 10 years; however, each time he previously left voluntarily. Helen testified she never noticed defendant engage in any gang activity on those occasions either. Jerry testified that each time defendant left their home he would go straight back to involvement in gang activity.
The jury convicted defendant on all counts and allegations. The trial court sentenced defendant to an aggregate prison term of nine years.
II. DISCUSSION
A. Substantial Evidence Supports the Jury’s Determination That Defendant Possessed the Weapons and Ammunition
Defendant maintains that insufficient evidence supports the jury’s determination that defendant possessed the Uzi, Ruger handgun, and ammunition. In particular, he notes that there was insufficient evidence that he was the one responsible for the items, while others inside the home had sufficient opportunity and ability to possess them. We believe the evidence was sufficient to support a determination that defendant possessed the weapons and ammunition.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘“If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. [Citation.]”’” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“The elements of the offense proscribed by section 12021 are conviction of a felony and ownership, possession, custody or control of a firearm. [Citations.] Knowledge is also an element of the offense. [Citation.]” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Possession may be actual or constructive. (Ibid.) “Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.] Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]” (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)
Sufficient evidence was adduced below to support a determination that defendant himself possessed the weapons and ammunition. Only three individuals lived in the home: defendant, Martinez, and defendant’s 10-year-old brother. Defendant’s younger brother was not present at the time of the raid, and no one below or on appeal has suggested that he could be responsible for the prohibited items. Martinez had done the laundry that day and had never seen the weapons before; thus, it is deducible that the weapons must have been placed in the laundry room that day after she had laundered her clothing. Indeed, the fact that Townsend heard someone run to the back of the house a minute or two before the commencement of the raid supports a determination that someone inside saw the officers preparing outside and attempted to hide the weapons in the laundry room. Moreover, an investigator for the district attorney’s office, Michael Petti, testified that Martinez told him she saw the police outside the home prior to the commencement of the raid. Gonzalez and Jaramillo had arrived only two hours earlier. Gonzalez brought nothing with him. Jaramillo brought only her purse; however, it was of normal size, i.e., large enough to fit a wallet, but not of a large size. Inferentially, this suggests the weapons and ammunition could not have been smuggled in by defendant’s grandmother. In fact, defendant below expressly renounced the possibility that his grandmother was responsible for the illicit items.
This leaves solely defendant as the individual responsible for the weapons and ammunition. Further evidence supports this determination. An additional magazine which fit the Uzi was found on the ground between the totes containing defendant’s personal possessions. Furthermore, defendant was the only individual who attempted to hide from the officers, having been located behind the door of the bedroom. This suggests consciousness of guilt, as well as supporting the determination that he saw the police prepare for the raid beforehand, ran to hide the weapons, and ran back to hide in order to distance himself from the contraband.
The evidence also ruled out Gonzalez as the individual responsible for the items. Martinez testified that Gonzalez brought nothing with him when he arrived. This was precisely what she had previously reported to Petti. How precisely Gonzalez would have hid an Uzi, a handgun, and an extra magazine upon his person when arriving is unexplained by the evidence adduced below. Furthermore, it is difficult to believe that Gonzalez, after smuggling the items into the house, then conducted an Easter egg hiding contest with the items, placing the empty magazine amongst defendant’s possessions, the Uzi and handgun in the laundry room, and the lone cartridge on the back stoop. For all the above mentioned reasons, we find the jury’s determination that defendant possessed the weapons and ammunition supported by substantial evidence.
B. Substantial Evidence Supports the Jury’s Determination That Defendant Possessed the Weapons and Ammunition for the Purpose of Benefiting a Gang
In order to sustain a gang enhancement, the prosecution must prove the predicate crime was “committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, subd. (b)(1).)
Here, substantial evidence supported the jury’s determination that defendant possessed the weapons and ammunition for the benefit of Casa Blanca Riva. First, substantial evidence supported a determination that defendant was currently an active member of Casa Blanca Riva. While some evidence supported a determination that defendant attempted to remove himself from gang activity by moving in with his father and stepmother and working for most of that period, other evidence showed that as soon as he was asked to leave, he returned to the location of his prior gang activity. This despite the fact that he was 30 years old and had been making a sufficient wage to save up and move out on his own. Indeed, defendant’s father admitted that every time defendant went back to Casa Blanca he became reinvolved in gang activity. Christiansen testified that the graffiti inside the residence was gang related. Defendant was associating with another Casa Blanca Riva gang member, Gonzalez. When booked in the current matter, defendant claimed association with Casa Blanca Riva. Defendant told a police officer on a previous occasion that he was no longer in the gang; however, subsequent events proved this was untrue. His claim of disaffiliation at the time of the instant crime was thus highly suspect. Therefore, substantial evidence supported a determination that defendant was currently an active Casa Blanca Riva member.
Likewise, substantial evidence supported a determination that possession of the weapons and ammunition was for the benefit of the gang. Christiansen testified he believed possession of the items was for the benefit of the gang. This is because they could be used to defend gang members against their rivals, intimidate the public against incriminating gang members, conduct reprisals against the gang’s rivals, and increase the amount of fear of and, hence, respect for, defendant and his gang. Indeed, it is difficult to imagine another reason for possessing an altered Uzi capable of firing 800 to 850 rounds per minute in a suburb; especially when some of the rounds contained therein were specifically fashioned with the intent of inflicting as devastating a wound as possible. Moreover, the discovery of multiple weapons is even more indicative of a gang related purpose. One weapon, the handgun for instance, for self-defense would not, necessarily, implicate an intent to benefit the gang. However, in context, two weapons, one altered to fire at extreme rapidity and containing specially designed ammunition to inflict maximum casualties, is strongly suggestive of possession for the benefit of or in association with a criminal street gang. This is particularly so when the individual responsible for the crime is found with another gang member during the present crime’s commission. (People v. Morales (2003) 112 Cal.App.4th 1176, 1197-1198.) Substantial evidence supported the jury’s determinations.
III. DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P.J., Richli, J.