Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05CF3484, William Lee Evans, Judge.
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, Assistant Attorney General, Barry Carlton and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MOORE, J.
Defendant appeals following his conviction for two counts related to an incident during which police found a gun in an abandoned vehicle. Defendant contends there was insufficient evidence to find he had possession of the gun, constructive or otherwise. The scant evidence of defendant’s actual connection to the gun compels us to agree, and we therefore reverse the judgment.
I
FACTS
In the early evening of September 25, 2005, Officer Salo of the Santa Ana Police Department was dispatched to South Pacific Street. Dispatch had received a report of individuals loitering, possibly with a gun. When Salo arrived with another officer, he saw six people, one of whom was defendant, and observed them while waiting for other officers. Veronica Ortega was one of the six people, and later told police that defendant and the others were discussing a gun. Ortega reported that defendant was telling a gang member named “Grizzly” that even if there were no bullets for the gun, it could be used to scare people.
When the individuals saw the police, they fled. Five of the six were detained. (Defendant escaped, but was apprehended later.) The police searched the abandoned vehicle and found an unloaded .25-caliber pistol beneath the front passenger seat. The police also found several gang signs for “Los Comps” written in the dust covering the car.
Defendant was charged in count one with possession of a concealed weapon in a vehicle by an active gang member (Penal Code, section 12025, subdivisions (a)(1)-(b)(3)), in count two with possession of a firearm by a convicted felon (section 12021, subdivision (a)(1)), and in count three with street terrorism (section 186.22, subdivision (a)). The information also alleged that defendant’s possession of the weapon was for the benefit of a criminal street gang in violation of section 186.22, subdivision (b)(1), and numerous priors.
Subsequent statutory references are to the Penal Code.
At trial, the jury heard testimony from Officer Ronald Castillo, who had been a member of the Santa Ana Police Department’s gang unit for 13 years. He had been qualified as an expert 98 times, and had extensive experience and training in gangs and gang-related matters. Castillo testified that Los Comps or Los Compadres had been a gang in Santa Ana since the 1980’s. Its territory included central Santa Ana, including the area where the abandoned car had been found. On the date in question, the gang had approximately 20 members.
Castillo testified that, based upon their statements and background investigations, that several of the other individuals detained at the scene were members of Los Comps. He further testified that the primary activities of Los Comps were auto thefts and felony assaults. With respect to auto thefts, he found six auto thefts dating from 2001 to 2004 involving Los Comps members. With respect to felony assault, he found six incidents dating from 2001 to 2005.
Castillo conducted a background check on defendant, and he had also had recent personal contact with defendant. His background check revealed six field interview cards on defendant from 2000 to 2003. The field interview cards indicated that defendant had first been identified as a member of Los Comps in November 2000. In 2001, he told police he ran with Los Comps, and later, that he claims Los Comps and backs them up. In 2003, he told police he recently got a Los Comps tattoo.
Defendant had also been issued seven notices under the Street Terrorism Protection Act (STEP), between 1998 and September 2005. During several of these encounters, he told police that he was with Los Comps. During one stop, the police observed several gang monikers in the phone book of his cell phone. Defendant’s gang name was “Wicked.” Defendant also had several gang tattoos.
Castillo also testified about a prior court document defendant had signed, both admitting he was an active participant in Los Comps and that he was aware Los Comps was a criminal street gang engaged in a pattern of criminal conduct. Based upon the totality of this information, Castillo opined that defendant was an active participant in a criminal street gang on the date of the incident.
With respect to the gun found at the scene, Castillo explained that guns are very important to gang members. It was common for Santa Ana gangs to use a “gang gun,” meaning one gun that was shared by the members of the gang. It would be held by one member, and if another member needed it, it would be passed on to him. Answering a hypothetical based on the facts present here, Castillo testified that the gun was possessed for the benefit of the gang, with each member having access if the need arose.
The jury found defendant guilty of counts two and three. It also found that count two was committed for the benefit of a criminal street gang. Defendant waived his right to a jury trial on the prior convictions, all of which were found true by the court. Defendant was sentenced to a total of 11 years in state prison.
II
DISCUSSION
Sufficient Evidence of Firearm Possession
“Our role in considering an insufficiency of the evidence claim is quite limited. We do not reassess the credibility of witnesses [citation], and we review the record in the light most favorable to the judgment [citation], drawing all inferences from the evidence which supports the jury’s verdict. [Citation.]” (People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) The standard of review is the same where the prosecution relies primarily on circumstantial evidence. (People v. Miller (1990) 50 Cal.3d 954, 992.) Before a verdict may be set aside for insufficiency of the evidence, a party must demonstrate “‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) Substantial evidence, however, is not any evidence, or a mere scintilla of evidence. “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. [Citations.]’ [Citation.]” (People v. Allen (2001) 86 Cal.App.4th 909, 913-914.)
Possession of a firearm by a felon is not a complex crime. “A violation of section 12021, subdivision (a) a relatively simple crime to commit: an ex-felon who owns, possesses, or has custody or control of a firearm commits a felony. Implicitly, the crime is committed the instant the felon in any way has a firearm within his control.” (People v. Ratcliff (1990) 223 Cal.App.3d 1401, 1410, fn. and italics omitted.) The felon must, however, have the intent to have control or dominion over the firearm. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.)
The scant evidence in this case requires us to conclude that substantial evidence does not support the verdict. The entirety of the evidence here was a statement about the potential uses of an unloaded gun, followed by the discovery of an unloaded gun in a nearby abandoned car. The evidence did not establish that defendant had control or dominion over the gun. There was no physical evidence that defendant possessed the gun, and no evidence to connect him to the abandoned vehicle. His statement about the use of unloaded guns is simply not enough to support the contention that he had control over the weapon.
Respondent points to Castillo’s testimony about the nature of “gang guns,” but even taken at face value, there is nothing to connect him to this particular gun. Indeed, respondent attempts to bootstrap the gun possession onto defendant’s gang membership, but defendant’s gang membership is not solid, substantial proof of gun possession. Thus, the evidence here simply does not meet the standard of substantial evidence required by law to support a conviction. We have little doubt that defendant was, indeed, an active gang member, but the prosecution simply did not present sufficient evidence of gun possession to support a conviction.
Gang Allegations and Street Terrorism
Because there was insufficient evidence to support count two, the sentence enhancement for that count is invalid. With respect to the street terrorism count, the information alleged gang participation on the same date as the purported gun possession. Defendant argued in his opening brief that no other felonious conduct was proved at trial, and that count three must stand or fall with count two. We agree, and note that respondent offered no argument on this issue.
III
DISPOSITION
The judgment is reversed.
WE CONCUR: O’LEARY, ACTING P. J. ARONSON, J.