Filed 6/16/16 P. v. Williamson 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

THE PEOPLE,
                                                                                           F069163
         Plaintiff and Respondent,
                                                                         (Kern Super. Ct. No. BF149698A)
                   v.

JERRY MICHAEL WILLIAMSON,                                                                OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Eric Bradshaw,
Judge.
         Jonathan D. Roberts, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and Brook
A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                     INTRODUCTION
       Appellant/defendant Jerry Michael Williamson was charged and convicted of
weapons and narcotics offenses. On appeal, he contends his conviction for being a felon
in possession of a firearm must be reversed for insufficient evidence. We affirm.
                                           FACTS
       On May 2, 2013, officers from the Bakersfield Police Department served a search
warrant at a residence on El Rancho Drive. Defendant was the only person at the home
when the warrant was served. He was placed in handcuffs and detained during the
search.
       The officers found five rifles lying on the floor of a cluttered garage. Detective
McAfee described the weapons as “five long rifles or long guns.” The rifles were neatly
lined up on a towel. The police took a photograph of the weapons as they were found on
the garage floor.
       Officer Tsang was part of the search team, and also testified they found “five long
rifles” on the garage floor. Tsang testified he had training about firearms and different
types of rifles. Tsang picked up and examined each rifle to make sure it was not loaded:
“[I] locked the bolt to the rear and made sure there was no round in the chamber.” Tsang
testified four of the rifles were bolt action. One rifle did not have a handle for the bolt.
He wrote the down serial number for each weapon and placed all the rifles in a bag.
       Based on the serial numbers, Officer Tsang later determined one rifle had been
reported stolen. The rifles were not submitted for fingerprint analysis.
       Officer Tsang testified he was familiar with BB and pellet guns and had retrieved
less than five such guns in his professional experience. Tsang testified all of the rifles
appeared to be actual firearms, designed to shoot and capable of shooting. None of the
rifles appeared to be gas powered BB or pellet guns.
       There were several small, immature marijuana plants growing in containers in the
garage.

                                              2.
       Inside the house, the officers searched the bedroom and found a glass pipe, a burnt
spoon, and a syringe on the bedroom nightstand. There was an off white residue on
pipe’s burnt end. There was mail addressed to defendant in the bedroom.
       A picture frame was laying in the middle of the bed. There was an off-white
substance loosely laying on top of the frame, later determined to be 0.28 grams of
methamphetamine. A second glass pipe was also on the bed along with a laptop
computer and sexual items.
       A wallet with defendant’s driver’s license was found on the other nightstand in the
same bedroom. A cell phone was next to the wallet. Detective McAfee testified the cell
phone contained a photograph which showed “five long rifles, long guns.” McAfee
compared the photograph to the rifles found in the garage and believed the picture
showed the same weapons based on the nature and appearance of the rifles.
       There were five immature marijuana plants growing in the backyard. The plants
were five to 10 inches tall. The officers did not find a medical marijuana card or a
license to grow marijuana.
Defendant’s postarrest interview
       Detective McAfee arrested defendant and took him to the police department,
where he conducted a recorded interview. He advised defendant of the Miranda1
warnings, and defendant said he would answer questions.
       Defendant said he owned the El Rancho house and had lived there for eight years.
Several other people had lived there in the past. At the time, he was living with a woman
named Cherise.
       Detective McAfee asked defendant about the methamphetamine and the narcotics
paraphernalia. Defendant said he did not know about it, and the items did not belong to



       1   Miranda v. Arizona (1966) 384 U.S. 436


                                            3.
him. Defendant said he only smoked marijuana, and he never used methamphetamine.
Defendant claimed that the officers had planted evidence.
       Detective McAfee asked defendant about the marijuana plants. Defendant said the
plants belonged to him, and he had a license to grow them since 1996. McAfee told
defendant the license was supposed to be displayed, and asked defendant why they could
not find it during the search. Defendant said the license was in his bedroom, and they
just didn’t find it.
       Detective McAfee asked defendant about the five rifles found in the garage:
“[O]bviously you had knowledge of ‘em, ‘cause you’re taking pictures of them on your
phone. And you’re sending them to people….” Defendant said the rifles did not belong
to him. Defendant claimed that a police officer gave the rifles to another person in
exchange for defendant’s dirt bike.
       Detective McAfee asked for the name of the officer who allegedly traded the
rifles. Defendant did not give a name or respond to further questions.
       It was stipulated that at the time of the search, defendant was prohibited from
owning, purchasing, receiving or possessing a firearm within the meaning of Penal Code
section 29800, subdivision (a)(1).
Charges, conviction and sentence
       After a jury trial, defendant was convicted of count I, felon in possession of a
firearm (Pen. Code, § 29800, subd. (a)(1));2 count III, possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)); and count IV, misdemeanor possession of a
device to inject or smoke a controlled substance (Health & Saf. Code, § 11364.1). He
was found not guilty of count II, unlawfully planting or cultivating marijuana (Health &
Saf. Code, § 11358). The court found he had two prior prison term enhancements.



       2   All further statutory citations are to the Penal Code unless otherwise indicated.


                                               4.
       On March 21, 2014, the court sentenced defendant to three years eight months:
the upper term of three years for count I; a consecutive term of eight months (one-third
the midterm) for count III; and a concurrent term of 180 days for count IV. The court
ordered the enhancements stricken.3
                                       DISCUSSION
I.     Defendant’s Conviction is Supported by Substantial Evidence
       Defendant was charged and convicted in count I of being a felon in possession of a
firearm, based on the rifles found in the garage.4 Defendant argues his conviction in
count I is not supported by substantial evidence because the People failed to prove any of
the rifles were actual “firearms” as defined by statute, and the weapons could have been
BB, toy or pellet guns.5
       “In assessing the sufficiency of the evidence, we review the entire record in the
light most favorable to the judgment to determine whether it discloses 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. [Citations.] Reversal on this ground is
unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.) “Moreover, unless the testimony is physically impossible or

       3In his opening brief, appellate counsel argued defendant was entitled to
resentencing under Proposition 47. In his reply brief, counsel withdrew this argument
and advised the court that defendant had been resentenced under Proposition 47.
       4  As to count I, the prosecutor argued that defendant had possession of a firearm
because “he had five of them in his garage.” The jury was instructed with CALCRIM
No. 2511: “The People allege that the defendant possessed more than one firearm. You
may not find the defendant guilty unless all of you agree that the People have proved that
the defendant possessed at least one of the firearms, and you all agree on which firearm
he possessed.”
        5 In his closing argument, defense counsel did not claim the rifles were BB or
pellet guns, but instead argued the prosecution failed to prove defendant knew about the
rifles.


                                             5.
inherently improbable, testimony of a single witness is sufficient to support a conviction.
[Citation.]” (People v. Young (2005) 34 Cal.4th 1149, 1181.)
       “The standard of appellate review is the same in cases in which the People rely
primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings,
the opinion of the reviewing court that the circumstances might also be reasonably
reconciled with a contrary finding does not warrant a reversal of the judgment.” ’
[Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the
crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean
(1988) 46 Cal.3d 919, 932–933; People v. Stanley (1995) 10 Cal.4th 764, 792793.)
       Definition of a “Firearm”
       Defendant was convicted in count I of being a felon in possession of a firearm in
violation of Penal Code section 29800, subdivision (a)(1), which states:

              “Any person who has been convicted of a felony under the laws of
       the United States, the State of California, or any other state, government, or
       country, or of an offense enumerated in subdivision (a), (b), or (d) of
       Section 23515, or who is addicted to the use of any narcotic drug, and who
       owns, purchases, receives, or has in possession or under custody or control
       any firearm is guilty of a felony.”
       As applicable to this statute, “ ‘firearm’ means a device, designed to be used as a
weapon, from which is expelled through a barrel, a projectile by the force of an explosion
or other form of combustion.” (Pen. Code, § 16520, subd. (a) [former § 12001,
subd. (b)].) This definition does not encompass a toy gun, pellet gun or BB gun. (People
v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras); People v. Law (2011) 195
Cal.App.4th 976, 983 (Law).) “[T]oy guns obviously do not qualify as a ‘firearm,’ nor do



                                              6.
pellet guns or BB guns because, instead of explosion or other combustion, they use the
force of air pressure, gas pressure, or spring action to expel a projectile. [Citation.]”
(Monjaras, supra, 164 Cal.App.4th at p. 1435.)
       Whether a defendant has used, possessed, or been armed with a firearm; whether
that weapon is a particular firearm; or whether the weapon is loaded, are all questions of
fact. (People v. Wilson (2008) 44 Cal.4th 758, 806; People v. Frausto (2009) 180
Cal.App.4th 890, 896897; People v. Masbruch (1996) 13 Cal.4th 1001, 1007; People v.
Runnion (1994) 30 Cal.App.4th 852, 856; People v. Rodriguez (1999) 20 Cal.4th 1,
1214.)
       The trier of fact must similarly determine whether an object is a “firearm” as
defined by statute. (Law, supra, 195 Cal.App.4th at pp. 983984; Monjaras, supra, 164
Cal.App.4th at p. 1436; People v. Green (1985) 166 Cal.App.3d 514, 517.) As with any
other factual determination, circumstantial evidence alone is sufficient. (Law, supra, 195
Cal.App.4th at pp. 978979; Monjaras, supra, 164 Cal.App.4th at pp. 14351438.) The
jury may consider a witness’s testimony as to the object’s appearance, the witness’s
experience with firearms, and the defendant’s words and conduct. (See, e.g., People v.
Rodriguez, supra, 20 Cal.4th at pp. 1213; Monjaras, supra, 164 Cal.App.4th at
pp. 14351438.) The jury need not give a defendant the benefit of a witness’s inability to
say conclusively whether the weapon was real or not. (Monjaras, supra, 164
Cal.App.4th. at p. 1436.)
       Analysis
       There is substantial evidence that all of the rifles found in the garage were
“firearms” and not toy, pellet, or BB guns. Detective McAfee described the weapons as
“five long rifles or long guns.” Officer Tsang similarly described the weapons as “five
long rifles.” Tsang testified he had training about firearms and different types of rifles.
Tsang picked up and examined each rifle to make sure it was not loaded: “[I] locked the



                                              7.
bolt to the rear and made sure there was no round in the chamber.” Tsang testified four
rifles were bolt action, and the fifth did not have a handle for the bolt.
       Officer Tsang testified he was familiar with BB and pellet guns and had retrieved
less than five such guns in his professional experience. Tsang testified all of the rifles
appeared to be actual firearms, designed to shoot and capable of shooting. None of the
rifles appeared to be gas powered BB or pellet guns.
       When Detective McAfee interviewed defendant about the contraband found in the
house, defendant denied any knowledge of the methamphetamine, claimed he only
smoked marijuana, and accused the officers of planting evidence. McAfee also asked
defendant about the five “rifles” found in the garage, and said he must have known about
them since there was a photograph of the rifles on his cell phone. In contrast to his
answer about the narcotics, defendant did not deny knowledge of the firearms or claim
they were not “rifles.” Instead, defendant said the rifles did not belong to him, they
belonged to someone else, and this person had traded defendant’s dirt bike to an officer in
exchange for the rifles. When pressed about his story, defendant failed to identify the
officer who purportedly traded the rifles to this unnamed third person.
       Defendant acknowledges that circumstantial evidence may be relied upon to find a
weapon is a “firearm,” but argues the cases in support of that premise involved situations
where defendants brandished weapons at victims to commit crimes, and frightened
victims testified that the weapons appeared to be operable firearms. Defendant argues
that in this case, the weapons were not being brandished and were simply laying on the
garage floor. For example, in Monjaras, supra, 164 Cal.App.4th 1432, the defendant
“displayed the handle of a black pistol tucked in his waistband” and ordered the victim to
give him her purse. He then pressed something against the victim’s back and took the
purse from her shoulder. (Id. at p. 1434.) The defendant argued there was no evidence
the pistol was a “firearm” as defined by statute, and it was not a BB or air gun. Monjares
held that while “the victim could not say whether the pistol in defendant’s waistband was

                                              8.
a gun or a toy,” the defendant “was not engaged in a childhood game of cops and robbers;
the robbery was real, and the evidence supports a reasonable inference that the pistol he
used was a real firearm, not a toy….” (Ibid.)
       As relevant to this case, Monjares further held that “[c]ircumstantial evidence
alone is used to prove the object was a firearm. This is so because when faced with what
appears to be a gun, displayed with an explicit or implicit threat to use it, few victims
have the composure and opportunity to closely examine the object; and in any event,
victims often lack expertise to tell whether it is a real firearm or an imitation.”
(Monjares, supra, 164 Cal.App.4th at p. 1436.) In reaching that holding, Monjares did
not rely on specific cases related to the identification of firearms. Instead, Monjares
relied on well-recognized principles of the substantial evidence rule, that inferences
drawn from circumstantial evidence are sufficient to support a conviction (People v.
Maury (2003) 30 Cal.4th 342, 396), and circumstantial evidence is as sufficient as direct
evidence to support a conviction (People v. Bloom (1989) 48 Cal.3d 1194, 1208).
(Monjares, supra, 164 Cal.App.4th at p. 1436.)
       While defendant did not brandish or use the rifles in this case, that factor does not
undermine reliance on direct and circumstantial evidence to support his conviction in
count I. The testimony from the two officers provided substantial evidence to support
defendant’s conviction and the jury’s finding that the rifles were “firearms” as defined by
Penal Code section 16520, subdivision (a).
                                       DISPOSITION
       The judgment is affirmed.




                                              9.
                               ______________________
                               POOCHIGIAN, Acting P.J.
WE CONCUR:


______________________
FRANSON, J.


______________________
SMITH, J.




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