Filed 7/25/14 In re Robert O. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re ROBERT O., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,                                                                                F068124

         Plaintiff and Respondent,                                             (Super. Ct. No. JL004638)

                   v.
                                                                                         OPINION
ROBERT O.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Merced County. David W.
Moranda, Judge.
         Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and
Appellant.




*        Before Gomes, Acting P.J., Kane, J. and Detjen, J.
          Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for
Plaintiff and Respondent.
                                            -ooOoo-


          Following a contested jurisdiction hearing, appellant Robert O. was found to have
possessed a concealable firearm for the benefit of or in association with a criminal street
gang (Pen. Code,1 §§ 186.22, subd. (b)(1)(A), 29610; count 1); possessed live
ammunition (§ 29650; count 2); knowingly received, concealed, or withheld stolen
property (§ 496, subd. (a); count 3); and actively participated in a criminal street gang
(§ 186.22, subd. (a); count 4). He was adjudged a ward of the court pursuant to Welfare
and Institutions Code section 602, and was placed on probation with various terms and
conditions and ordered to pay a restitution fine. He now contends the evidence was
insufficient to sustain the true finding on count 3. We reverse that finding, but otherwise
affirm.
                                            FACTS
                                                I
                                   PROSECUTION EVIDENCE
          On July 6, 2013, members of the Gang Violence Suppression Unit served a search
warrant at Roberto Garcia’s home in Merced. As they approached, Officer Alvarez
noticed three subjects — Mario Jimenez, David V., and Robert — standing in front of the
residence. All three immediately ran toward the house. Officers ordered Jimenez and
David to the ground and detained them. At the same time, Alvarez saw Robert in the
open, detached garage. Robert was standing next to a weight bench, looking startled,
with his hands up. He was wearing a red cloth belt. As a gang officer, Alvarez knew

1         All statutory references are to the Penal Code unless otherwise stated.



                                               2.
Norteños often wore red, and specifically that type of belt. He noted Robert also had a
Norteño-related tattoo.2
       A loaded .40-caliber Glock handgun was found on the floor next to the weight
bench, within a foot of where Robert had been standing.3 Robert denied tossing the
firearm onto the ground. When Alvarez asked if his DNA or fingerprints would be on the
firearm, however, Robert kind of laughed, smiled, and looked away from Alvarez. A
black pistol shotgun was also found in the garage in a rifle case. In addition, a gun fell
out of David’s waistband when he was searched. Methamphetamine was found in the
back room of the residence, and there were 20 to 30 marijuana plants growing in the
backyard.
       Alvarez transported Robert to the police station. Robert stated he associated with
the “Rebels Before Locs” (RBL), a Norteño gang in Merced. When booked into juvenile
hall, Robert told staff he associated with Norteños and needed to be housed with them.
       Alvarez explained that the principal types of crimes committed by Norteños in
general and RBL in particular in Merced revolve around violence — shootings,
stabbings, assaults, firearms, possessions, drive-bys, and things of that nature. He opined
that Robert was a Norteño gang member. This opinion was based on Robert’s statements
that he “hung out” with RBL, even though he said he was not a gang member or gang
affiliated; the fact he was housed with active northerners; his tattoo; the fact he had
previously been contacted with other gang members; his clothing; and the fact he was
with two other gang members — Garcia and David — committing gang crimes.



2       In addition to describing the events in which he personally participated, Alvarez
testified as a gang expert. We summarize only those portions of his testimony that are
pertinent to the issue raised on appeal.
3     This gun was stolen from David Williams’s vehicle about two years earlier.
Williams did not recognize Robert and had no idea who took the weapon.



                                              3.
       In response to a hypothetical question that tracked the evidence in this case,
Alvarez opined that a minor located a foot from the firearm found by the weight bench
would be in possession of that firearm for the benefit of a criminal street gang, and would
be committing the crime in association with other gang members. The crime would
benefit the Norteños and also Garcia as a gang member, because older gang members
often have younger gang members hold firearms since they know a younger gang
member will not be punished as severely as an older gang member would be. The crime
would also benefit the younger gang member by showing his loyalty and commitment to
the gang. In addition, assuming the individuals present were all gang members, it was
Alvarez’s opinion all would have access to all of the firearms. It is common among gang
members that when someone has a firearm, the other gang members know and have
access to the firearm for offensive or defensive purposes.
                                             II
                                   DEFENSE EVIDENCE
       Garcia knew Robert as a family friend. Robert went to Garcia’s residence every
week or two to mow the yard, which was why he was at the house when everything
happened. Robert had been at the house for no more than 30 minutes when the officers
arrived. During that time, he mowed the lawn. Garcia never saw him with a gun. When
the officers arrived, Garcia had just seen Robert put the lawnmower back in the garage.4
       David and Jimenez were also at the house. As far as Garcia knew, David was not
a gang member, although Jimenez was a Norteño. About a month earlier, someone had
shot at them in front of Garcia’s cousin’s house, which was across the street from
Garcia’s residence. Jimenez had been shot in the hands. After the shooting, Garcia saw
Jimenez in possession of the gun later found by the weight bench. About two hours
before the officers came to Garcia’s house, Garcia’s father called and said a family
4      Photographs taken during the search showed the lawnmower in the yard.



                                             4.
member had just called and said to tell Garcia to be careful, because the people who did
the earlier shooting were going to come and shoot him soon. When Jimenez heard this,
he grew nervous, and went home and got the gun and came back. Garcia did not know
David also had a gun until after the officers came. The shotgun found in the garage
belonged to Garcia’s father, who had brought it over just in case something happened.
       Garcia admitted being a Norteño, but explained he did not associate with the gang
at all anymore. He did not believe Robert was a gang member. Robert was only at
Garcia’s house to cut the lawn, not to associate with Jimenez and David. Robert was not
present at the earlier shooting.
                                      DISCUSSION
       The essential elements of the crime proscribed by subdivision (a) of section 496,
as alleged in count 3 of the wardship petition, are: “(1) The property must be stolen
property, (2) the defendant must receive, conceal, or withhold it or aid in receiving,
concealing or withholding it from its owner, (3) and defendant must have knowledge that
the property is stolen property. [Citations.]” (People v. Schroeder (1968) 264
Cal.App.2d 217, 225; accord, People v. Martin (1973) 9 Cal.3d 687, 695.) Robert says
the evidence failed to establish he knew the item he was found to have possessed — the
.40-caliber Glock handgun found by the weight bench — was stolen. The People
concede reversal is required. We agree.
       “Our review of [Robert’s] substantial evidence claim is governed by the same
standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of
the evidence, we must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘“[O]ur role
on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must
presume in support of the judgment the existence of every fact that the trier of fact could
reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances

                                             5.
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 reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th
1020, 1026.)
       Guilty knowledge may be proven by circumstantial evidence, although “when
challenged on appeal those circumstances must be shown to constitute substantial
evidence.” (People v. Kunkin (1973) 9 Cal.3d 245, 254.) Unexplained possession of
stolen property, standing alone, will not support a conviction for receiving stolen
property. (People v. Jackson (1970) 14 Cal.App.3d 57, 63.) Generally, however,
“[p]ossession of recently stolen property is so incriminating that to warrant conviction
there need only be, in addition to possession, slight corroboration in the form of
statements or conduct of the defendant tending to show his guilt. [Citations.]” (People v.
McFarland (1962) 58 Cal.2d 748, 754, italics added.) Thus, “‘[p]ossession of stolen
property, accompanied by an unsatisfactory explanation of the possession or by
suspicious circumstances, will justify an inference that the property was received with
knowledge it had been stolen. [Citations.]’ [Citation.]” (People v. Schroeder, supra,
264 Cal.App.2d at p. 225; accord, People v. McFarland, supra, at pp. 754-755.)
       “An inference of guilt, otherwise reasonable, may be weakened beyond the point
of reasonableness if it appears that the period between theft and discovered possession
was inordinately long under the circumstances.” (Williams v. Superior Court (1969) 71
Cal.2d 1144, 1151, fn. 6.) In the present case, the gun was not recently stolen,
“what[ever] time intervals may be embraced within the term ‘recent.’” (People v.
Anderson (1989) 210 Cal.App.3d 414, 421.) The gun’s owner did not recognize Robert
and had no idea who stole the weapon some two years before it turned up in Robert’s
possession. There was no evidence Robert had possessed it for any length of time or how
he came to possess it, although it reasonably can be inferred from Alvarez’s testimony
that he was holding it for an older gang member. Significantly, neither Robert’s conduct

                                              6.
(kind of laughing, smiling, and looking away from Alvarez when Alvarez asked
questions directed at possession) nor the circumstances surrounding his possession of the
gun suggest guilt of anything other than the unlawful possession of a firearm itself.5
(Contrast, e.g., People v. Martin, supra, 9 Cal.3d at pp. 695-696 [knowledge business
machine stolen established by machine’s presence in the defendant’s car, unusual
circumstances surrounding machine’s transfer, and presence of number of other similar
machines of which the defendant was aware]; In re Richard T. (1978) 79 Cal.App.3d 382,
388-389 [knowledge sufficiently shown where minor found in possession of gun soon
after it was stolen, minor gave different stories concerning how he obtained possession,
and minor admitted he suspected gun possibly was stolen]; People v. Taylor (1969) 2
Cal.App.3d 979, 983-984 [knowledge gun was stolen reasonably inferable from the
defendant’s flight, discard of weapon upon seeing police officer, wearing of outer
clothing that could easily be removed so the defendant could change his appearance, and
the defendant’s possession of other, separately stolen, property]; People v. Lopez (1954)
126 Cal.App.2d 274, 277-278 [although nine months elapsed between time adding
machine was stolen and time it was found in the defendant’s possession, evidence was
sufficient to show guilty knowledge where there was testimony the defendant would buy
or receive stolen property when he had opportunity, and the defendant gave conflicting
and unsatisfactory accounts of his acquisition of adding machine].)
       Viewed in the light most favorable to the prosecution, the evidence here
establishes Robert knew his possession of the gun was unlawful, but produces nothing


5      In her argument, the prosecutor did not point to any evidence suggesting Robert
knew the gun was stolen. She merely told the court: “The firearm, you heard testimony,
it was also stolen.” In making its findings, the court stated: “And I also find that Count
Three is true. He was in possession of stolen property, and I think because it is a firearm
and he was in possession of it, and the knowledge that it was stolen, I believe that’s been
found also.”



                                             7.
more than speculative inferences concerning his knowledge the gun was stolen.
“‘[S]peculation is not evidence, less still substantial evidence’” (People v. Waidla (2000)
22 Cal.4th 690, 735), and evidence that only raises a strong suspicion of guilt is not
sufficient to support a conviction (People v. Davis (2013) 57 Cal.4th 353, 360; People v.
Redmond (1969) 71 Cal.2d 745, 755). Accordingly, the juvenile court’s true finding on
count 3 cannot stand, and the double jeopardy clause of the Fifth Amendment to the
United States Constitution bars readjudication of that allegation. (In re Miguel L. (1982)
32 Cal.3d 100, 110-111; see In re James M. (1973) 9 Cal.3d 517, 520.)
                                      DISPOSITION
       The true finding as to count 3 (violation of Pen. Code, § 496, subd. (a)) is reversed
for insufficient evidence. Further proceedings on that allegation are barred. In all other
respects, the judgment is affirmed.




                                             8.
