Filed 6/20/16 P. v. Ambriz CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G051835

         v.                                                            (Super. Ct. No. 12NF2093)

DANIEL AMBRIZ,                                                         OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Elizabeth
G. Macias, Judge. Affirmed.
                   Gerald J. Miller, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
              A jury convicted defendant Daniel Ambriz of possession of a firearm by a
                                        1
felon (Pen. Code, § 29800, subd. (a)(1)) and active gang participation (§ 186.22, subd.
(a)), and found true he committed the felon in possession offense for the benefit of a
criminal street gang (§ 186.22, subd. (b)(1)). Defendant admitted having suffered two
prior strike convictions with attached enhancements, and the court exercised its discretion
under section 1385, subdivision (a), to dismiss one prior. The court sentenced him to a
prison term of 12 years.
              On appeal defendant contends insufficient evidence showed he had
possession, custody, or control of the firearm. We disagree and affirm the judgment.


                                            FACTS


              Around 9:00 p.m. on June 30, 2012, Officer Matthew Ellis and his partner
Officer Hernandez were driving through an alley located at 700 North Anna Drive in
Anaheim, when they saw a red truck parked in a carport, with two men (later identified as
Alan Reyes and Angel Bribiesca) standing near the tailgate. Reyes and Bribiesca ducked
behind the truck. As Ellis and Hernandez pulled alongside the truck, Hernandez told
Ellis he recognized the two men. The officers got out of the patrol car. Ellis noticed
defendant standing near the truck’s passenger door. The officers commanded defendant
to come to the back of the truck where Reyes and Bribiesca were standing; defendant
complied.




1
              All statutory references are to the Penal Code.

                                              2
              As Hernandez searched Bribiesca, Ellis saw defendant move his hands
toward his pocket, so Ellis asked Hernandez to search defendant next. When Hernandez
began searching defendant, defendant started to reach into his pocket again and
Hernandez had a short struggle with him. Ellis called for officer assistance. He saw
defendant make a movement as though he were throwing something toward the back of
the truck. Hernandez placed defendant in handcuffs.
              Ellis went to the back of the truck and saw several trash bags in the truck
bed. The hand grip and rear of a semiautomatic handgun was partially exposed under a
red trash bag. Also in the truck bed was a methamphetamine pipe and a used syringe; on
the rear bumper was a bottle.
              Reyes had a leather holster tucked into the front waistband of his pants.
The firearm fit in the holster.
              Painted on garage doors on the opposite side of the alley was Eastside
Anaheim gang graffiti.
              In police interviews at the station, Ellis read defendant his rights under
Miranda v. Arizona (1966) 384 U.S. 436. Defendant said he had been hanging out with
the Eastside Anaheim gang for two years, but denied being a gang member. He
identified his moniker as “Magic.” He stated he knew Reyes and Bribiesca. He said that
an enemy of the gang had caused the scar on top of his head. He said he knew nothing
about the gun until the officers “pulled him out of the truck.” But he also explained that a
gang member who possesses a firearm is required to let the other gang members know
because he is “on point or a lookout.”
              The parties stipulated the handgun bore DNA from at least three
individuals, one of whom was Reyes. Defendant was excluded as a major contributor.
The parties further stipulated Reyes and Bribiesca admitted being in felonious possession
of a firearm on June 30, 2012.



                                             3
Evidence of Defendant’s Gang Membership
                On several prior occasions, defendant had admitted he was a member of the
Eastside Anaheim gang. For example, he made this admission on June 11, 2012, when
police found him sitting with another person on a sidewalk, holding a shirt to the top of
his head, with blood coming down his face. He had also made this admission in May
2012, after he rode his bike away from an unmarked police car because he thought the car
occupants were going to “hit him up” and because “things were hot then” with
“something going down between Eastside Anaheim and Citron Street.”
                He received and signed a STEP (Street Terrorism Enforcement and
                2
Preservation) notice in February 2012, notifying him he could be charged with gang
enhancements if he continued to associate with the gang. His outgoing jail letter dated
November 5, 2013 indicated he had a connection with a gang. A June 19, 2012 search of
his home uncovered Eastside Anaheim gang graffiti in his bedroom and letters from
influential Eastside Anaheim gang members, including Bribiesca.


Gang Expert Testimony
                Officer Jason States, a gang expert responsible for investigating the
Eastside Anaheim gang and some other gangs in Orange County, testified that a gang
member is “posting up” when he is “standing out” in his gang’s neighborhood where he
can be seen, either alone or in a group, in order to intimidate others and to claim and
patrol the neighborhood. Rivals may enter a gang’s neighborhood to disrespect the gang
by painting graffiti or by conducting a “hit up” (i.e., asking someone where they are from
or whether they “bang”). When a gang member is hit up and fails to claim his gang, he is
demonstrating a punishable cowardice called “ranking out.” In contrast, when a gang


2
                (§ 186.20 et seq.; People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1414
(Sifuentes).)

                                               4
member talks with law enforcement, he may deny his membership in the gang without
ranking out.
               Firearms play a strong role in earning respect for a gang, both from average
citizens and from rival gangs. A person with a gun will tell his fellow gang members
about the gun, so they can retrieve it and return fire if the holder is shot, and also so they
can distance themselves if the police arrive. When posting up, members keep the gun in
close range by hiding it nearby. Generally, only actual gang members or associates have
access to a gang gun. Gang members are expected to “back up” other members of their
gang, e.g., in a fight.
               States opined that, as of June 30, 2012, Eastside Anaheim was a criminal
street gang, whose primary activities were firearm and narcotics sales, robberies, and
felons possessing firearms. He also opined that, as of June 30, 2012, Reyes, Bribiesca,
and defendant were active Eastside Anaheim gang members and participants. During a
five-week period between May 18 to June 30 of 2012, defendant was contacted by police
six times in Eastside Anaheim gang territory. Five of those times he was with other gang
members, and four of those times he admitted to membership in the gang and said his
moniker was Magic. In addition, prior to that five-week period, he had had contacts with
police and had made admissions to them. An “ES” tattoo on his hands signified Eastside
Anaheim. He also had tattoos commonly worn by Orange County and Anaheim gang
members.
               The 700 block of North Anna Drive in Anaheim “is the heart” or “the hub”
of the Eastside Anaheim gang neighborhood. It is the “epicenter” where Eastside
Anaheim gang members are always present. In the month or two before June 30, 2012,
several shootings had occurred between Eastside Anaheim and a rival gang, Travelers
City. Eastside Anaheim gang members had shot and killed a member of another rival
gang, Citron Street, resulting in heightened tension with that gang as well.



                                               5
              States opined that, hypothetically, if three gang members are “posting up”
in the heart of their gang area and one of them has a gun on his person or in close
proximity, he is obligated to tell the others about the gun and would certainly do so
during a time of high tensions with a rival gang. He further opined these three gang
members would be actively participating on behalf of the gang. He also believed that
having a gun in the heart of the gang area benefited the gang, because it enabled members
to protect themselves, and elevated their status by intimidating the residents and
demonstrating a willingness to do battle. Possessing a gun also furthered and promoted
other criminal conduct by gang members, by enabling them to shoot or retaliate against
members of rival gangs.


                                      DISCUSSION


              Defendant argues insufficient evidence showed he knowingly exercised a
right to control the gun, as required to support a finding of constructive possession. He
relies on this court’s decision in Sifuentes, supra, 195 Cal.App.4th 1410.
              “Our review of this issue is limited to determining whether substantial
evidence supports the verdict.” (Sifuentes, supra, 195 Cal.App.4th at p. 1416.) When “a
criminal conviction [is] challenged as lacking evidentiary support[,] the court must
review the whole 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 solid value — such that a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “A
reviewing court must accept logical inferences the jury might have drawn from the
circumstantial evidence.” (Sifuentes, at p. 1416.) “‘Unless it is clearly shown that “on no
hypothesis whatever is there sufficient substantial evidence to support the verdict” the
conviction will not be reversed. [Citation.]’ [Citation.] We apply the same standard to

                                             6
convictions based largely on circumstantial evidence.” (People v. Martinez (2008) 158
Cal.App.4th 1324, 1329.)
              Under section 29800, subdivision (a)(1), a felon “who owns, purchases,
receives, or has in possession or under custody or control any firearm is guilty of a
felony.” “Possession may be physical or constructive, and more than one person may
possess the same contraband.” (People v. Miranda (2011) 192 Cal.App.4th 398, 410.)
              “Constructive possession means the object is not in the defendant’s
physical possession, but the defendant knowingly exercises control or the right to control
the object.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831, italics added.) Stated
another way, a defendant constructively possesses a weapon if it is not in his actual
possession, but “is nonetheless under his dominion and control, either directly or through
others.” (People v. Peńa (1999) 74 Cal.App.4th 1078, 1083-1084, italics added.)
Constructive possession must be intentional: A “felon who acquires possession of a
firearm through misfortune or accident, but who has no intent to exercise control or to
have custody, commits the prohibited act without the required wrongful intent.” (People
v. Jeffers (1996) 41 Cal.App.4th 917, 922.)
              “Dominion and control” cannot be inferred from the defendant’s mere
proximity or access to the weapon. (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)
“[S]omething more must be shown . . . .” (Ibid.) Nonetheless, “the necessary additional
circumstances may, in some fact contexts, be rather slight.” (Ibid.)
              Defendant argues his case falls squarely within this court’s holding in
Sifuentes, supra, 195 Cal.App.4th 1410. There, we reversed Sifuentes’s conviction for
possession of a gun by a felon, after determining the evidence did “not support the
conclusion Sifuentes had the right to control the firearm discovered near Lopez,” his
codefendant. (Id. at p. 1413.)




                                              7
               In Sifuentes, officers entered a room in a motel known for drug and
prostitution activities, and saw the following scene. (Sifuentes, supra, 195 Cal.App.4th at
pp. 1413-1414.) Sifuentes, a convicted felon, “lay on top of the bed nearest the door.”
(Id. at p. 1414.) “Lopez, also a convicted felon, knelt on the floor on the far side of the
second bed, facing the officers. There were two women in the room. One lay naked
under the sheets of the bed closest to Lopez. The other stood near the bathroom, wrapped
in a towel.” (Ibid.)
               “An officer later found a loaded .40-caliber semiautomatic handgun under
the mattress next to Lopez. Investigators did not test the gun for fingerprints or DNA.
Officers also found methamphetamine and a pipe in Sifuentes’s pocket.” (Sifuentes,
supra, 195 Cal.App.4th at p. 1414.) At trial a gang expert testified Sifuentes and Lopez
were active participants in the same gang on the day of their arrest. (Id. at pp. 1414-
1415.) The motel in question was not located in the territory claimed by their gang.
(Id. at p. 1416.)
               Upon Sifuentes’s appeal from his felon in possession conviction, we
observed that no evidence showed the weapon found under the mattress was a gang gun
that had been used either offensively by a gang to commit crimes and assault rivals or
defensively against rival gangs. (Sifuentes, supra, 195 Cal.App.4th at p. 1417.) The
gang expert had testified a gang gun was “‘accessible’ to gang members ‘at most times’”
(id. at p. 1417), but also that unspecified restrictions existed on whether any particular
gang member could use a gang gun (id. at pp. 1417-1418), thereby leaving open to
question whether Sifuentes had any right to control the gun. Given that Sifuentes and
Lopez had “simply occupied a motel room with two females,” no evidence showed the
men “had used or were about to use the gun offensively or defensively.” (Id. at p. 1418.)
Furthermore, even assuming the firearm was a gang gun, “no evidence showed Sifuentes
had the right to control the weapon.” (Id. at p. 1417.) The expert did not “link Sifuentes
to the particular firearm found next to Lopez.” (Id. at p. 1419.) “Even assuming the

                                              8
expert implied Sifuentes could exercise control over the firearm, no evidentiary basis
existed to support this conclusion.” (Ibid.)
              Here, in contrast, the location was not a motel room in which two naked
women were present and which lay outside the gang’s turf and in an area known for
prostitution. Rather, in the instant case, the following circumstances suggested
defendant, Reyes, and Bribiesca were posting up for Eastside Anaheim on the night in
question: At 9:00 p.m., these three active gang participants were standing in the heart of
Eastside Anaheim’s turf, during a time of heightened tensions between Eastside Anaheim
and two rival gangs, next to a truck whose open bed contained a partially hidden, but
easily accessible gun. The gun contained DNA from at least three people, suggesting it
was a communal gun. Upon seeing the police, Reyes and Bribiesca ducked and hid.
Defendant struggled to prevent the police from discovering something and threw it
toward the back of the truck. A methamphetamine pipe and a used syringe were later
found in the truck bed, along with the gun. Defendant admitted that a gang member who
possesses a gun while on lookout is required to let other members know about the
weapon. Based on the entirety of the circumstances, the jury could reasonably infer
defendant knew about the gun and intended to use it, if necessary, to protect, promote,
and benefit his gang.
              Defendant complains there was no “direct evidence” he knew about the gun
or intended to constructively possess it, nor any “direct evidence” that the firearm was a
gang gun. A trier of fact, however, may infer from sufficient circumstantial evidence
that a defendant had dominion and control over a firearm. (People v. Miranda, supra,
192 Cal.App.4th at p. 411; People v. Nieto (1966) 247 Cal.App.2d 364, 368.)




                                               9
                                DISPOSITION


          The judgment is affirmed.




                                           IKOLA, J.

WE CONCUR:



MOORE, ACTING P. J.



ARONSON, J.




                                      10
