Filed 8/26/20 P. v. Vasquez CA2/8
   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                         SECOND APPELLATE DISTRICT

                                      DIVISION EIGHT

THE PEOPLE,                                                     B298378

         Plaintiff and Respondent,                              (Los Angeles County
                                                                Super. Ct. No. NA105346)
         v.

YVETTE VASQUEZ,

         Defendant and Appellant.


      APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith Meyer, Judge. Affirmed in part, reversed
in part, and remanded with directions.

      Steven Schorr, under appointment by the Court of Appeal,
for Plaintiff and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, David E. Madeo, Acting Supervising Deputy
Attorney General, and Idan Ivri, Deputy Attorney General, for
Plaintiff and Respondent.
                   _________________________
      A jury convicted Joseph Salinas (Salinas) and appellant
Yvette Vasquez (Vasquez) of the April 23, 2016, first degree
murder of Juan Zamora (Zamora). Each defendant was also
convicted of possession of a firearm by a felon. Appellant was
sentenced to a term of imprisonment of 75 years to life. She
appeals, contending the evidence is not sufficient to support the
judgment. We affirm in part, reverse in part, and remand.

                  STATEMENT OF THE CASE
       Salinas and appellant were charged with murder (Pen.
Code,1 § 187, subd. (a)) and possession of a firearm by a felon.
(§ 29800, subd. (a)(1).) As to the murder count, the information
alleged a principal discharged a firearm during the offense,
causing great bodily injury and death. (§ 12022.53, subds. (d)
and (e)(1).) It was also alleged as to both defendants that the
crimes were committed for the benefit of a criminal street gang.
(§ 186.22, subd. (b)(1)(B).) Lastly, it was alleged appellant had
been convicted of a prior serious or violent felony. (§§ 667, subd.
(d) and 1170.12, subd. (b).)
       Appellant was found guilty as charged. The court found
the prior felony conviction allegation to be true and declined to
strike it. The court doubled the 25 years to life sentence on the
murder count under the Three Strikes law and added 25 years to
life based on the firearm enhancement. The court imposed a
concurrent term of 10 years on the possession count, which




1       All undesignated statutory references are to the Penal
Code.




                                  2
included four years for the gang enhancement. Vasquez filed a
timely appeal from the judgment.2
      Vasquez contends there is insufficient evidence that she
was the driver of the vehicle that transported Salinas to the
scene of the murder. She also contends there is insufficient
evidence she knew of Salinas’s intent to murder Zamora. For the
possession of a firearm charge, Vasquez asserts she did not
control, constructively or otherwise, the firearm Salinas used to
shoot Zamora.
      As to the murder count, the record includes substantial
evidence demonstrating both that Vasquez was the driver and
that she knowingly participated in the planning and execution of
Zamora’s murder. However, we agree there is no evidence to
support Vasquez’s conviction for being a felon in possession of a
firearm.

                   STATEMENT OF FACTS

A.     The Relationship Between Appellant And Salinas;
       Gang Memberships
       According to appellant, Salinas has been her boyfriend
since 2009.
       Zamora, the victim, belonged to the West Side Wilmas
gang. Salinas and appellant belonged to the East Side Wilmas, a
rival gang. Appellant joined the gang when she “was a kid.”




2     The record contains no information regarding Salinas’
sentence.




                                3
B.     The BMW And Appellant
             The People’s theory of the case was that appellant
drove Salinas to the scene of Zamora’s murder in a BMW. One of
the contentions on appeal is that the evidence failed to show that
appellant was the driver of the BMW. Evidence about appellant’s
use of a BMW for several weeks before the murder, summarized
below, was therefore pertinent.
       Dominique Ramirez owned a 2007 BMW 328i. Appellant,
with whom Ramirez regularly used methamphetamine,
occasionally borrowed this car during the year 2016. At one
point, Ramirez asked appellant to return the car to the dealer
because she could not make the payments on the car. Appellant
never did as Ramirez asked and eventually Ramirez reported the
car stolen.
       On April 7, 2016, about two weeks before the murder, Los
Angeles Police Officer Eduard Grijalva conducted a traffic stop on
a BMW with an expired registration. Appellant was the driver,
and she appeared to be very nervous and fidgety. After a records
check, Officer Grijalva cited appellant for driving without a
license.
       As discussed more fully below, appellant was in possession
of the BMW between February and May of 2016.

C.    The Events Prior To the Murder
      At about 8:30 p.m. on April 23, 2016, Elizabeth Leon, a
next-door neighbor of Zamora, was smoking with two friends in
her car parked in an alley behind her house on Wilmington
Boulevard. Another car came through the alley behind Leon, and
Leon began to move her car to make way for it to pass. Leon
described the car as a tan, newer model four-door vehicle. The
driver appeared to her to be a blonde Hispanic woman in her




                                4
twenties. The other car stopped and a passenger exited. Leon
saw that there was nobody else in the tan car besides the driver
after the passenger left. The passenger walked through a gate in
the alley. The tan car reversed back out of the alley; Leon drove
away. A surveillance video of this encounter was played for the
jury.
       The alley in question runs parallel to Wilmington
Boulevard and Gulf Avenue and is adjacent to the house where
Zamora lived. There were two surveillance cameras filming the
alley, one facing north and the other facing south. Los Angeles
Police Detective Scott Coffee, one of the detectives investigating
the murder, viewed the video and concluded that the suspect
vehicle on the video was a newer model BMW. Although
Detective Coffee was aware of Leon’s statement, he believed the
suspect BMW was the one that Leon had seen in the alley
because Leon’s car was visible in the surveillance footage as well,
and the movements of the BMW and Leon’s car in the video were
consistent with what Leon remembered. A passenger could be
seen exiting the BMW in the video, just as Leon described.
       The license plate of the BMW was not readable from the
surveillance video. A BMW looking like the car in the video was
located months after the murder in a car lot. Using the license
plate number and Department of Motor Vehicles records, the
owner of the BMW was determined to be Dominique Ramirez,
appellant’s friend. Detective Coffee believed the BMW in the
video and the one found in the car lot were the same vehicle
because of the similar make, model, and vehicle color.




                                 5
       Returning to the moments before the murder, Dennis G.
was waiting for a friend along a wall that divided two apartment
buildings just south of Zamora’s address on Wilmington
Boulevard. While he waited, Dennis saw Salinas, whom he
described as a man wearing a black hoodie pulled over his head,3
enter the apartments through a door providing access to the alley
behind the apartments. Salinas walked through the apartments
and turned right on Wilmington. Salinas passed out of view and
five or six seconds later, Dennis heard gunshots.

D.     The Murder
       Zamora’s sister, Maria, came home from grocery shopping
at around 8:25 p.m. on April 23, 2016. She was standing outside
smoking a cigarette when Zamora walked out the front door. He
was talking to someone on his cell phone. She heard him saying
“I’m here. I’m here. Where are you at? I’m standing outside the
sidewalk waiting for you to come.” He kept repeating, “Where
are you at?” Once he reached the sidewalk, he stopped at the
residence’s front gate and continued talking on the phone.4
       Salinas approached Zamora and asked, “Where you from,
fool?” According to Maria, Salinas was wearing a gray hooded
sweater and creased jeans.5
       Zamora did not have a chance to respond because Salinas
pointed a gun at Zamora’s chest and, from two or three inches

3     Dennis G. identified Salinas from a photo lineup but he
stated he was not 100 percent certain of the identification.
4      Zamora was expecting a delivery of methamphetamine.
5      Maria described Salinas’s clothing but she did not see his
face




                                 6
away, fired two times. Zamora tried to head back toward the
house, but Salinas fired two more times before turning and
running in the other direction, northward on Wilmington
Boulevard. Zamora collapsed near the front door of his home. In
two separate calls, Maria reached 911 dispatchers and reported
the shooting.
      Baltazar Gallardo (Gallardo), a neighbor of Zamora, heard
two gun shots and, followed by his son Luis, ran to the front of
his apartment; Gallardo saw a male wearing a black hoodie run
away northward on Wilmington Boulevard.
      Luis noticed a phone on the sidewalk of Wilmington
Boulevard and picked it up. He handed it to Gallardo. The
phone was disassembled into three parts—the main portion, the
battery, and the cover. It was an LG brand device. At some
point, Gallardo tried to hand the phone to a police officer who had
responded to the scene, but the officer ignored Gallardo and told
him to go away. Gallardo took the phone home and placed it in a
plastic bag.

E.     The Aftermath
       At approximately 8:30 p.m., Los Angeles Police Officer
Russell Veloni and his partner were notified of a shooting. They
were the first emergency personnel to arrive at the scene. A
witness directed Officer Veloni to the porch of the house, where
Zamora was lying face-up with a gunshot wound to the chest.
Zamora’s family was frantically attempting to render first aid.
Officer Veloni called for additional support, including an
ambulance. Paramedics responded and transported Zamora for
treatment. He died from bullet wounds to his liver, lung and
aorta.




                                7
       Detective Coffee responded to the scene of the shooting at
approximately 10:30 p.m. that night. He was in charge of the
crime scene. Detective Coffee noticed three expended cartridge
casings at the scene and an expended bullet, as well as a blood
trail and some bloody clothing. The three casings had all been
fired from the same gun.
       Los Angeles Police Officer Sergio Melero contacted Gallardo
on the night of the shooting. Gallardo told Officer Melero about
the phone his son Luis had found in the street. Gallardo turned
the phone assembly over to Officer Melero. Officer Melero passed
this phone on to Detective Coffee while it was still disassembled,
with the backing, battery, and memory cards removed.
       Detective Coffee downloaded and reviewed the contents of
the disassembled phone Luis had found. The phone’s memory
contained the account name “Salinas” and the passwords “Listo,”
“ESW,” “ESWilmas,” and “Dreamer1.” Detective Coffee
concluded the phone belonged to Salinas. He also concluded that
the passwords were gang-related words. “ESWilmas” and “ESW”
were commonly known references to the East Side Wilmas street
gang, and “Listo” appeared to be a gang moniker. Other data on
the phone confirmed that it belonged to Salinas. The phone
contained photographs of a yard that Detective Coffee knew was
located on Lagoon Avenue at a residence of record for Salinas. In
addition, one of the wireless networks in the phone’s memory was
named “Salinas.”

F.    The Investigation
      Los Angeles Police Officer Noel Sanchez spoke with
Ramirez, the registered owner of the BMW, and learned that
appellant had possession of the BMW from February through
May of 2016.




                                8
       In July 2016, Los Angeles Police Detective David Cortez
received a call from a man who wished to remain anonymous.
The caller was “extremely terrified” and did not want to give his
name. The man told Detective Cortez Salinas had a girlfriend
called “Chica.” Searching police databases, detectives linked the
name “Chica” to appellant.
       Detectives Coffee and Cortez conducted a lengthy interview
of appellant on November 10, 2016. During that interview,
appellant effectively admitted to being the driver of the BMW
that dropped Salinas off in the alley. Detective Coffee was falsely
telling appellant that she had been identified as the driver of the
BMW. Appellant stated: “I’m not denying that I didn’t drive the
car, I mean, I was driving the car, you know what I mean?”6

G.     The Arrest and Undercover Operations
       Salinas and appellant were arrested on November 10, 2016
while they were driving together in a pickup truck on the 110
freeway. They were ultimately taken to separate jails, with
appellant ending up in the jail in Van Nuys where she was placed
in a cell with recording equipment.
       Los Angeles Sheriff’s Deputy Elizabeth Aguilera was
undercover, pretending to be an inmate. She was placed with
appellant in her cell on the day she and Salinas were arrested.
The two women spoke about the accusations appellant was



6      The transcript of appellant’s interview with the detectives
is Exhibit 87B and is part of the record. The audio was played to
the jury; a transcript of the audio was given to the jury. While it
is not entirely clear from the record that the entire interview was
played to the jury, it was played at least to its page 74.




                                 9
facing. Appellant told Aguilera that police “ain’t got shit on me7
      Appellant said detectives could not “[s]how me the fucking
tape where you see my man in the car with me.” Appellant
stated: “I was driving. That was me. [¶] . . . [¶] I was there that
day” but she said the passengers in the car were her nephew,
daughter, and son. She said that if anyone got out of her car in
the alley that day, it was her daughter. Alternatively, she denied
being present at the scene: “I wasn’t there on that day.”
      The recording becomes largely unintelligible toward its
end. (See fn. 7.) Deputy Aguilera testified about appellant’s
response to Aguilera’s question “[d]id you guys do a jale?”8
Aguilera testified that appellant “backed up into the corner under
the camera and she said [whispered] “ ‘187.’ ”
      Detective Cortez had photographs taken of appellant.
Appellant had a tattoo of the word “Listo” on her upper chest,
along with several tattoos stating “Rest in Peace, L Street,” “Lil
Chico,” “In Loving Memory, Lil Chico,” and “Eastside Wilmera”
on other parts of her body.
      On November 18, 2016, Salinas was placed in a cell
equipped with a recording device. There was one other person in
the cell. Salinas told him that he was called “Listo,” which
matched one of the five passwords on the cell phone found by
Luis at the scene.



7     The conversation between Deputy Aguilera and appellant
was recorded. The transcript of the recording was marked
Exhibits 82A and 82B. The audio of Exhibit 82B was played to
the jury.
8     “Jale” means doing “work” for a gang.




                                10
H.     The Gang Expert Testimony
       Los Angeles Police Officer Michael Chang testified as a
gang expert. He confirmed the East Side and West Side Wilmas
gangs are rivals. Chang knew both Salinas and appellant as
members of the East Side Wilmas gang and that the former’s
gang moniker was “Listo.” Zamora was a West Side Wilmas gang
member and lived in that gang’s territory.
       Presented with a hypothetical that embraced the facts of
this case, Chang testified the shooting would have been
committed for the benefit of, at the direction of, or in association
with a street gang with the intent to further, promote, or assist
the gang. The scenario reflects the two East Side gang members
working together for a common purpose—killing a rival in his
own territory, and creating fear and intimidation in the
community to discourage anyone from undermining the gang or
reporting crimes to police. To be the driver in a gang crime, the
individual would need to be trusted and considered reliable by
her fellow gang members.

                         DISCUSSION
I.    There Is Sufficient Evidence Appellant Aided and
      Abetted the Murder
      Vasquez contends the evidence was insufficient to prove
beyond a reasonable doubt she was guilty of murder. We
conclude substantial evidence supported the jury’s verdict.

      1.    Standard of review
      “In evaluating a claim regarding the sufficiency of the
evidence, we review the record ‘in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of




                                11
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’ ” (People v.
Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri
(2018) 5 Cal.5th 126, 142 [“ ‘To assess the evidence’s sufficiency,
we review the whole record to determine whether any rational
trier of fact could have found the essential elements of the crime
or special circumstances beyond a reasonable doubt.’ ”]; People v.
Nguyen (2015) 61 Cal.4th 1015, 1055–1056 (Nguyen) [“ ‘[I]t is the
jury, not the appellate court which must be convinced of the
defendant’s guilt . . . .’ ”].) “ ‘We resolve neither credibility issues
nor evidentiary conflicts; we look for substantial evidence.’ ”
(People v. Letner and Tobin (2010) 50 Cal.4th 99, 162.)

       2.    Governing law
       Murder is the unlawful killing of a human being “with
malice aforethought.” (§ 187, subd. (a).) A “willful, deliberate,
and premeditated killing” is murder in the first degree. (§ 189)
“ ‘ “Deliberation” refers to careful weighing of considerations in
forming a course of action; “premeditation” means thought over
in advance.’ ” (People v. Brooks (2017) 3 Cal.5th 1, 58.)
“ ‘A “person aids and abets the commission of a crime when he or
she, acting with (1) knowledge of the unlawful purpose of the
perpetrator; and (2) the intent or purpose of committing,
encouraging, or facilitating the commission of the offense, (3) by
act or advice aids, promotes, encourages or instigates, the
commission of the crime.” ’ ” (Nguyen, supra, 61 Cal.4th at
p. 1054.)
       A defendant may be convicted of first degree premeditated
murder based on direct aiding and abetting principles, under
which “the prosecution must show that the defendant aided or
encouraged the commission of the murder with knowledge of the




                                   12
unlawful purpose of the perpetrator and with the intent or
purpose of committing, encouraging, or facilitating its
commission.” (People v. Chiu (2014) 59 Cal.4th 155, 167; accord,
People v. Vasquez (2016) 246 Cal.App.4th 1019, 1024.) “ ‘Among
the factors which may be considered in making the determination
of aiding and abetting are: presence at the scene of the crime,
companionship, and conduct before and after the offense.’ ”
(Nguyen, supra, 61 Cal.4th at p. 1054; accord, People v. Sedillo
(2015) 235 Cal.App.4th 1037, 1065–1066.)

      3.     The Evidence Is Sufficient to Establish Appellant Was
             Driving the BMW
       Appellant acknowledges the general principles that apply
to her contention that the evidence was insufficient to prove she
was driving the BMW. Specifically, appellant acknowledges the
substantial evidence standard of review applies. However,
having acknowledged the governing standard, appellant proceeds
to ignore it. Instead of attempting to show that there was no
evidence to support the judgment, appellant contends her theory
of the case -- that she was not the driver of the BMW -- is more
plausible than the People’s evidence that she was the driver.
       The primary principle of the substantial evidence standard
of review is that the reviewing court will rely on the evidence that
supports the judgment. “[W]hen a verdict is attacked as being
unsupported, the power of the appellate court begins and ends
with a determination as to whether there is any substantial
evidence, contradicted or uncontradicted, which will support the
conclusion reached by the jury.” (Crawford v. Southern Pacific
Co. (1935) 3 Cal.2d 427, 429 (Crawford).)




                                13
       There is substantial evidence appellant was the driver of
the BMW that deposited Salinas in the alley close to Zamora’s
home.
       The video showed two cars in the alley right before the
murder. One was driven by Elizabeth Leon. The other vehicle
was a BMW. There is a solid body of evidence that links
appellant to the BMW owned by Domonique Ramirez; appellant
had possession of the car between February and May 2016. And
there is evidence in the form of Detective Coffee’s testimony that
it was the BMW owned by Ramirez that was the second car in the
alley right before the murder.
       This is not all there is. Appellant and Salinas were not
only personally linked and had been so for some years, but they
were also members of the same gang. It is an entirely rational
inference that they shared a common objective when it came to
the unfortunate Zamora. Thus, it made sense that it was
appellant who drove Salinas to the scene.
       There is of course no doubt that it was Salinas who
murdered Zamora. Dennis G. identified him as he was on his
way to the Zamora house. And it was Salinas’s phone that was
found close to the scene of the shooting. The description of
Salinas’s clothing by Dennis and Maria, Zamora’s sister, is also a
match linking Salinas to the shooting.
       Appellant herself also provided evidence that supports the
judgment. When asked by undercover sheriff’s deputy Aguilar if
appellant had put in any “work” for the gang, appellant’s answer
was right to the point. Yes, she had, and the “work” was murder
(“187”). This is a significant admission in that it confirms not
only the deed itself but also the motive for murder, which was




                               14
that it was part of the struggle between two criminal street
gangs.
       It is also true appellant conceded she was in the alley at
some point in time and, as the interview with the detectives went
on, she admitted she was the driver of the BMW. “I’m not
denying that I didn’t drive the car, I mean, I was driving the car,
you know what I mean?” We return to the subject of appellant’s
admissions below.
       Appellant contends her theory was more plausible than
that of the People for several reasons. She contends her hair was
not blonde, as Leon testified. It was dark brown when she was
arrested six months after the murder and it was blue when she
was cited for driving without a license two weeks before the
murder. She was not in her 20’s, as Leon thought, she was
38 years old. However, that there is evidence in conflict with the
evidence supporting the judgment does not mean there is no
substantial evidence. If there is substantial evidence, it does not
matter that it is contradicted. (Crawford, supra, 3 Cal.2d at
p. 429.) In other words, conflicts in the evidence are disregarded.
(Ibid [“conflicts must be resolved in favor of the respondent”].)
       Appellant did not deny that at one point she drove into the
alley. Appellant told the detectives she knew one person who
lived in the area of the crime scene, her nephew’s girlfriend’s
grandmother, and she only drove to the house once when driving
her nephew, son and daughter to and from that location. She
only remembered being in the alley once to make a U-turn. She
may well have tried at this point in the interview to retract her
earlier damaging admission that she had driven the car on the
night of the murder. In any event, it is significant that she never




                                15
retreated from the admission that she had in fact driven into the
alley at one point in time.
       There is substantial evidence appellant was the driver of
the BMW. That evidence is buttressed by appellant’s own
damaging admissions that she was the driver of the BMW on the
night of the murder.

      4.      There Is Sufficient Evidence Appellant Knew of and
              Shared Salinas’s Intent to Murder Zamora
       Appellant contends that other than an “otherwise
unidentified person in a car parked near a crime scene” and
statements by appellant that the “authorities view[ed] as
inculpatory,” there was “nothing that proves [appellant] knew
what Salinas intended to do and acted with the specific intent of
assisting him in that conduct.”
       “[I]he weight of authority and sound law require proof that
an aider and abettor act with knowledge of the criminal purpose
of the perpetrator and with an intent or purpose either of
committing, or of encouraging or facilitating commission of, the
offense.” (People v. Beeman (1984) 35 Cal.3d 547, 560.)
       As we noted, there is substantial evidence it was appellant
who drove the BMW that stopped in the alley near Leon’s car.
The arrival of the car at that location with a passenger, Salinas,
who was armed, was an event laden with deadly significance.
The two people in the BMW, appellant and Salinas, were not only
well known to each other but were also members of the same
gang who were now in the territory of a rival gang. Thus, the
arrival of the BMW at that location was pregnant with the
portent of the coming tragedy. The rational inference, given
these facts, is that the arrival of the BMW with appellant and




                               16
Salinas was an event that was planned with a specific objective
mind. That objective was Zamora’s murder.
       The plan for Zamora’s murder very obviously subsumed
both knowledge of the criminal purpose of Salinas as the shooter
and, also on appellant’s part, the intent of facilitate the
commission of the offense. The plan for the murder could not
have been hatched without both knowledge and intent on the
part of those planning the killing.
       The question is whether the identities of the planners as
Salinas and appellant is sufficiently shown by the evidence. In
Salinas’s case, it is not disputed that a passenger stepped out of
the BMW as Leon was watching. In the meantime, Dennis G.
was by a wall that separated two apartment buildings just south
of Zamora’s house on Wilmington Boulevard. Seconds before
shots were fired, Dennis saw Salinas walk by with a black hoodie
pulled over his head. And there is the crowning fact that it was
Salinas who shot Zamora.
       Contrary to appellant’s contention on appeal, the jury’s
verdict that appellant was the driver of the BMW is supported by
the evidence. Given that she was the driver, her admission to
undercover sheriff’s deputy Aguilera that she had done “work” for
the gang in the form of a “187” confirms that she was the other
planner of the enterprise.
       Effective January 1, 2019, the Legislature added
subdivision (a)(3) to section 188, which provides that a principal
for purposes of section 187 must have acted with malice
aforethought. (Stats. 2018, ch. 1015, § 2.) This provision goes on
to state: “Malice shall not be imputed to a person based solely on
his or her participation in a crime.” (§ 188, subd. (a)(3).)




                               17
      We are satisfied that the planners of Zamora’s murder,
Salinas and appellant, both acted with malice aforethought.
Conceding that malice aforethought “is an elusive concept that
does not lend itself to accurate definition” (1 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Crimes Against the Person,
§ 103, p. 894), planning a murder, and actively assisting in
bringing it about necessarily means the planners harbored malice
aforethought.

II.    There Is Insufficient Evidence Appellant Had
       Constructive Possession of the Firearm
       Appellant was found guilty of a violation of section 29800 in
that she was a felon in possession of a firearm. The prosecution
contended that appellant was in constructive possession of the
firearm.
       “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, overruled
on other grounds by People v. Farwell (2018) 5 Cal.5th 295, 304,
fn. 6.) “But mere proximity to the weapon, standing alone, is not
sufficient evidence of possession.” (Sifuentes, at p. 1417.)
Another formulation is that constructive possession is shown by a
knowing exercise of dominion and control over the item. (People
v. Mejia (1999) 72 Cal.App.4th 1269, 1272.)
       We do not agree with respondent’s contention that “the jury
was entitled to infer that appellant knew about and shared
control over the gun as part of her and Salinas’s [sic] joint plan to
kill Zamora.” There must be some evidence that appellant had
the right to control the gun before the jury could conclude that
appellant had constructive possession of the gun. But the record




                                 18
contains no evidence whatever regarding the control, if any,
appellant had over the gun. While there is direct evidence
Salinas had a gun, there is no circumstantial evidence, much less
direct evidence, that bears on the extent or fact of control that
appellant had over the gun. It is pure conjecture appellant had
control over the gun; it is equivalently possible she had no control
of it at all.
       In light of the foregoing, we reverse appellant’s conviction
for being a felon in possession of a firearm. As a result, we vacate
the attached gang enhancement. Given that the trial court
imposed a concurrent term on this count, we conclude there is no
need to remand this case to allow the trial court to consider
restructuring Vasquez’s sentence.




                                19
                           DISPOSITION
      Appellant’s conviction of possession of a firearm (Pen. Code,
§ 29800, subd. (a)(1)) is reversed. The case is remanded with
directions to modify the abstract of judgment to reflect that we
have reversed the conviction of a violation of Penal Code section
29800 and vacated the attached gang enhancement (§ 186.22,
subd. (b)). In all other respects, the judgment is affirmed.

      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                     STRATTON, J.

We concur:




             BIGELOW, P. J.




             WILEY, J.




                                20
