Filed 12/20/13 P. v. Arias CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                         (Yolo)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C066739

         v.                                                                        (Super. Ct. No. 101587)

EPIGMENIO JESUS ARIAS,

                   Defendant and Appellant.




         A jury convicted defendant Epigmenio Jesus Arias of receiving stolen property (a
rifle; count 1) and possessing a firearm in violation of an express probation condition
(count 2). The jury also found that the offenses were committed for the benefit of a
criminal street gang. The trial court placed defendant on probation for three years.
         Defendant now contends (1) his count 2 conviction must be reversed, because he
was on juvenile probation when the rifle was found in his bedroom, and former Penal




                                                             1
Code section 12021, subdivision (d)(1)1 (now § 29815) [a person who possessed a
firearm in violation of an express probation condition was guilty of a public offense] did
not apply to juvenile probationers; (2) there is insufficient evidence to sustain the
criminal street gang enhancements; (3) there is insufficient evidence to establish that the
rifle found in defendant’s bedroom was stolen; and (4) the trial court abused its discretion
in denying defendant’s request to reduce count 2 to a misdemeanor.
       We conclude (1) former section 12021, subdivision (d)(1) applied to juvenile
probationers; (2) viewed in the light most favorable to the judgment, substantial evidence
supports the reasonable inference that defendant acted for the benefit of his gang and that
he intended to promote, further or assist criminal conduct by gang members; (3) even if
certain evidence identifying the stolen rifle was inadmissible, there was still substantial
evidence supporting the jury’s finding that the rifle found in defendant’s bedroom was
stolen property; and (4) defendant has not established that the trial court abused its
discretion.
       We will affirm the judgment.
                                      BACKGROUND
       Defendant lived with his mother and sister in a two-bedroom house. He was on
juvenile probation and was subject to probation terms, including a restriction against
possessing any firearms.
       Officers with the Yolo County Sheriff’s Department conducted a probation search
of defendant’s residence on March 25, 2010. Defendant pointed out the bedroom he
shared with his mother. That bedroom contained men’s and women’s clothing and court
documents addressed to defendant. When asked whether his bedroom contained anything




1 Undesignated statutory references are to the Penal Code.


                                              2
illegal, defendant said there was a rifle in the bedroom closet. Defendant said the rifle
belonged to his brother Pedro Duran, who had been in prison since June or July 2009.
       In the closet of defendant’s bedroom, officers found a .22 caliber bolt action rifle.
The rifle had a magazine containing three unspent bullets. Officers also found articles of
men’s clothing and a bin with defendant’s name written on it.
       The serial number on the rifle matched the serial number on a rifle that Robert
Pineda had reported stolen roughly a month earlier, in January or February 2010.
Defendant was placed under arrest for possession of stolen property in violation of his
probation terms. Because he had turned 18 the day prior to the search, defendant was
charged as an adult.
       The jury convicted defendant of receiving stolen property (§ 496 -- count 1) and
possessing a firearm in violation of an express probation condition (former § 12021,
subd. (d)(1) -- count 2), also finding that defendant committed each offense for the
benefit of a criminal street gang (§ 186.22, subd. (b)(1)). The trial court denied
defendant’s request to reduce count 2 to a misdemeanor and placed defendant on
probation for three years.
                                      DISCUSSION
                                              I
       Defendant contends his count 2 conviction must be reversed, because he was on
juvenile probation when the rifle was found in his bedroom, and former section 12021,
subdivision (d)(1)2 did not apply to juvenile probationers. In defendant’s view, wards of
the juvenile court were not subject to a “condition of probation” because section 1203,




2 See Appendix A for the text of section 12021 as it read at the time of the offenses.
Section 12021, subdivision (d)(1) is now found in section 29815. (2 Witkin & Epstein,
Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, § 240,
p. 945.) See Appendix A for the text of section 29815.

                                             3
subdivision (a) limited the meaning of the phrase “condition of probation” in former
section 12021, subdivision (d)(1).
       Section 1203, subdivision (a) provided then and still provides: “As used in this
code, ‘probation’ means the suspension of the imposition or execution of a sentence and
the order of conditional and revocable release in the community under the supervision of
a probation officer.” (Stats. 2009, ch. 582, § 5.) Defendant claims an adjudication of
wardship pursuant to Welfare and Institutions Code section 707, subdivision (b), and a
dispositional order placing a minor under the supervision of a probation officer, do not
meet the definition of probation under section 1203. He adds that when a juvenile court
adjudges a minor a ward and places the minor under the supervision of a probation
officer, the court does not suspend imposition or execution of a sentence or commitment
to a juvenile institution; a dispositional order is not a sentence; juvenile probation is not
conditional or revocable; and the phrase “conditions of probation” is inappropriate in
juvenile cases.
       But as defendant acknowledges, the Legislature has referred to conditions of
probation with regard to juvenile offenders. The Welfare and Institutions Code
recognizes that minors who are adjudged wards of the juvenile court may be placed on
probation and the sanctions against such minors include imposing conditions of
probation. (Welf. & Inst. Code, §§ 202, subd. (e)(3), 602, subd. (a), 725, 728, subd. (e),
729-729.3, 729.6-729.9, 729.12, 730, 730.6, 742.16, 794.) The Penal Code also contains
references to conditions of probation in relation to minors. (§§ 241.2 [minor who
commits assault on school or park grounds may be ordered to attend counseling as a
condition of probation], 243.2 [minor who commits battery on school, park or hospital
property may be ordered to attend counseling as a condition of probation]; see also
Welf. & Inst. Code, § 729.6.) Similarly, courts recognize that probation is a disposition
that is available in juvenile delinquency proceedings, even if juvenile probation is
distinguishable from adult probation. (In re Sheena K. (2007) 40 Cal.4th 875, 889;

                                               4
In re Eddie M. (2003) 31 Cal.4th 480, 487-488; In re Kazuo G. (1994) 22 Cal.App.4th 1,
8; In re Jimi A. (1989) 209 Cal.App.3d 482, 487-488 [appellate court found probation
condition requiring minor not to possess any dangerous or deadly weapon to be
appropriate].) Hence, unlike former section 12021, subdivisions (a), (b) and (c), which
referred to convictions, former section 12021, subdivision (d)(1) did not use language
that expressly excluded juvenile offenders when it referred to a condition of probation.
(Stats. 2008, ch. 599, § 4.) Defendant has not demonstrated that section 1203,
subdivision (a) limited the scope of former section 12021, subdivision (d)(1).
       Moreover, former section 12021 was “ ‘part of the legislative scheme originally
promulgated in 1917 (Stats. 1917, ch. 145, p. 221, § 1) and commonly known as the
Dangerous Weapons Control Act. . . . The clear intent of the Legislature in adopting the
weapons control act was to limit as far as possible the use of instruments commonly
associated with criminal activity [citation] and, specifically, “to minimize the danger to
public safety arising from the free access to firearms that can be used for crimes of
violence.” ’ ” (People v. Bell (1989) 49 Cal.3d 502, 544.) In 1990, the Legislature
expanded the class of individuals who were prohibited from owning, possessing or
having custody or control of firearms to include the category of persons described in
former section 12021, subdivision (d)(1). (Stats. 1990, ch. 9, § 2, pp. 51-53.) The
Legislature had juvenile offenders in mind when it defined the class of persons restricted
from owning or possessing firearms in former section 12021. For example, the
prohibition in former section 12021, subdivision (e) applied to juveniles adjudged to be
wards of the court who were alleged to have committed certain enumerated offenses.
(Stats. 1990, ch. 9, § 2, pp. 51-53.) Interpreting former section 12021, subdivision (d)(1)
to include juvenile probationers effectuates the purpose of the Dangerous Weapons
Control Act because it would keep firearms out of the hands of juvenile offenders who a
juvenile court has already found should not have access to firearms. (Welf. & Inst. Code,
§§ 725, subd. (a), 727, subd. (a), 730, subd. (b); Cal. Rules of Court, rule 5.790(b).) This

                                             5
interpretation is also congruent with the legislative intent to expand the class of persons
whose access to firearms must be restricted.
       Additionally, the Legislature’s presumed approval of the holding in In re Reyes P.
(1994) 24 Cal.App.4th 1468 supports applying former section 12021, subdivision (d)(1)
to juvenile probationers. The court in In re Reyes P. held that former section 12021,
subdivision (d) applied to juvenile probationers. (In re Reyes P., supra, 24 Cal.App.4th
at pp. 1471-1472.) Since that decision, the Legislature has amended section 12021 but it
has not indicated disagreement with the holding. (Compare Stats. 1990, ch. 9, § 2,
pp. 51-53 with Stats. 2008, ch. 599, § 4.) “When a statute has been construed by the
courts, and the Legislature thereafter reenacts that statute without changing the
interpretation put on that statute by the courts, the Legislature is presumed to have been
aware of, and acquiesced in, the courts’ construction of that statute. [Citation.]”
(People v. Bouzas (1991) 53 Cal.3d 467, 475; People v. Ledesma (1997) 16 Cal.4th 90,
100-101.)
       We conclude former section 12021, subdivision (d)(1) applied to juvenile
probationers.
                                               II
       Defendant next contends there is insufficient evidence to sustain the criminal
street gang enhancements. Specifically, he says there is insufficient evidence to sustain
the jury’s finding that Varrio or Barrio Arbuckle Trece (“VRT”) was a criminal street
gang within the meaning of section 186.22, subdivision (f). Defendant also challenges
the sufficiency of the evidence supporting the finding that he unlawfully possessed a
firearm for the benefit of a criminal street gang.
       “ ‘In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, we “examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence -- evidence that is
reasonable, credible and of solid value -- such that a reasonable trier of fact could find the

                                               6
defendant guilty beyond a reasonable doubt.” [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] “[I]f the circumstances reasonably justify the jury’s findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding.” [Citation.] We do not reweigh evidence or
reevaluate a witness’s credibility. [Citation.]’ ” (People v. Nelson (2011) 51 Cal.4th 198,
210.)
        Section 186.22, subdivision (b)(1) provides a sentence enhancement for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . .” A “criminal street gang” is an
“ongoing organization, association, or group of three or more persons, whether formal or
informal, having as one of its primary activities the commission of one or more of the
criminal acts enumerated in [section 186.22, subdivision (e)(1) to (25) or (e)(31) to (33)],
having a common name or common identifying sign or symbol, and whose members
individually or collectively engage in or have engaged in a pattern of criminal gang
activity.” (§ 186.22, subd (f).)
        VRT was a subset of the Sureño gang. The prosecution’s gang expert explained
that although there were various Sureño subsets, all of the subsets were part of the Sureño
street gang. The expert likened the Sureño organization to a franchise in which the
subsets adopted the colors, logo and product of the parent company and the parent
company controlled the subsets. Despite this testimony, defendant claims the prosecution
failed to prove that VRT was a criminal street gang because the predicate offenses
described by the gang expert were committed by Sureño gang members, not members of
VRT.

                                             7
       But the gang expert opined that defendant was a Sureño, not a VRT, gang
member. Defendant does not claim on appeal that inadequate evidence supported the
finding that a Sureño criminal street gang existed. (In re Frank S. (2006) 141
Cal.App.4th 1192, 1196-1197 [expert opinion testimony about the existence of a gang
and defendant’s membership in a gang is permissible].) Unlike in People v. Valdez
(1997) 58 Cal.App.4th 494, 508, a case which defendant cites, the prosecution gang
expert in this case testified that there was a Sureño criminal street gang.
       Defendant also claims there is insufficient evidence that his possession of a
firearm was for the benefit of a criminal street gang. At the time of his arrest defendant
did not announce his gang affiliation or throw gang hand signs, and defendant was not in
the presence of other gang members. Defendant also did not make any statements to
officers about his use of the rifle found in his bedroom closet. The prosecution gang
expert had no knowledge about how defendant came to possess the rifle and what
defendant did with it. Nevertheless, viewing the record in the light most favorable to the
judgment, there is substantial evidence from which a jury could fairly find that
defendant’s possession of the rifle was very recent and gang related.
       A jury may rely on expert opinion that particular criminal conduct benefitted a
gang to find a section 186.22, subdivision (b)(1) enhancement. (People v. Albillar (2010)
51 Cal.4th 47, 63 (Albillar); People v. Romero (2006) 140 Cal.App.4th 15, 19.) Such
opinion testimony is permitted because the subject matter of the culture and habits of
criminal street gangs is sufficiently beyond common experience that expert testimony
would assist the jury. (People v. Gardeley (1996) 14 Cal.4th 605, 617-619 (Gardeley).)
A gang expert may also testify, in response to a hypothetical based on facts shown by the
evidence, about whether a particular crime was committed for a gang purpose. (Albillar,
supra, 51 Cal.4th at pp. 53-54, 63; Gardeley, supra, 14 Cal.4th at p. 619; People v.
Garcia (2007) 153 Cal.App.4th 1499, 1505-1506, 1512-1514.) However, “[a] gang
expert’s testimony alone is insufficient to find an offense gang related. [Citation.] ‘[T]he

                                              8
record must provide some evidentiary support, other than merely the defendant’s record
of prior offenses and past gang activities or personal affiliations, for a finding that the
crime was committed for the benefit of, at the direction of, or in association with a
criminal street gang.’ [Citation.]” (People v. Ochoa (2009) 179 Cal.App.4th 650, 657,
italics omitted.)
       Circumstantial evidence can also support a section 186.22, subdivision (b)(1)
finding. “There is rarely direct evidence that a crime was committed for the benefit of a
gang. For this reason, ‘we routinely draw inferences about intent from the predictable
results of action. We cannot look into people’s minds directly to see their purposes. We
can discover mental state only from how people act and what they say.’ ” (People v.
Miranda (2011) 192 Cal.App.4th 398, 411-412.)
       In response to a hypothetical, the gang expert opined that a self-admitted Sureño
gang member who has tattoos associated with the Sureño gang, wears the gang color,
expressed an interest in advancing within the gang, believed in killing rival gang
members and retaliating against those who kill fellow gang members, and possesses a
stolen gun capable of holding multiple rounds even though he is prohibited from
possessing firearms as a condition of his probation, possesses the gun to further or aid his
gang. The gang expert considered the following factors: (1) the individual’s self-
admitted gang membership and sworn allegiance to the gang, (2) the individual’s
criminal history, (3) the individual’s wish to advance within the gang, (4) the individual’s
pledge to kill rival gang members and to retaliate for the killing of fellow gang members,
(5) the fact that gang members typically use stolen firearms to commit crimes, and
(6) any indicia of gang affiliation found near the stolen rifle.
       Although there was evidence that defendant identified with VRT, he specifically
identified himself as a Sureño gang member on multiple occasions and to different law
enforcement officers. In August 2008, defendant told a Colusa County deputy sheriff
that he had recently been initiated into the Sureño gang. Although on probation with

                                               9
gang stipulations, defendant wore paraphernalia associated with the Sureño gang, namely
blue clothing and a pair of sunglasses with the number 13 carved into the lenses.
Defendant also possessed a cell phone containing photographs of an associate throwing a
Sureño gang hand sign and gang graffiti.
       On October 31, 2008, defendant told another Colusa County deputy sheriff that he
was a proud Sureño gang member. Defendant again wore blue clothing. He said he had
been “jumped in[to]” the gang and was looking forward to “putting in work” so that he
can advance within the gang and become an “O.G.”3 Defendant explained that if a
Norteño gang member challenged him, he would have to fight because he could not let a
Norteño gang member disrespect him or his fellow Sureño gang members. As defendant
was speaking with the deputy sheriff, a car carrying known Norteño gang members drove
by. Despite the presence of the deputy sheriff, defendant threw up a Sureño gang hand
sign in a challenging way.
       About six months before his arrest for the current offenses, defendant was
involved in a fist fight which was preceded by the throwing of gang hand signs.
Defendant wore a blue baseball cap during that incident. Defendant’s allegiance to the
Sureño gang was also evidenced by the tattoos on his wrists.
       Defendant was on probation with conditions for “gang identified minors” in 2009
and at the time of his arrest for the current offenses. Nevertheless, his MySpace page
contained a pledge to kill Norteños and to use gunfire to avenge the death of any Sureños.
The pledge on defendant’s MySpace page read, “If it ain’t blue [¶] It ain’t true [¶] I


3 Gang members were typically “jumped in[to]” a gang, meaning that they were initiated
into the gang by fighting or being beaten by several gang members. Thereafter, gang
members “put in work” for the gang to gain status within the gang and to show loyalty.
“Putting in work” meant doing things for the gang or in furtherance of the gang and
included beating up people at the direction of the gang and intimidating people so that
they were afraid to call or cooperate with the police. An “O.G.” or original gangster was
someone who had put in work for the gang and had gained respect within the gang.

                                             10
pledge allegiance [¶] 2 da blue rag [¶] Of da United States of southsiders [¶] 4 which we
stand [¶] 1 nation under X3 [¶] Wit the hate against norputos [¶] Click click bang bang
[¶] Puro Sur 13 [¶] Let it rain [¶] Let it thunder [¶] Bust a norputo 13 feet under [¶] 13 up
high 14 will die [¶] Drag the red rag [¶] And let the blue fly high [¶] Southsiders don’t die
[¶] Bytch we multiply [¶] Kill a norputo win a prize [¶] Kill a Sureño and your whole
family dies [¶] XIII true southsiders are always down [¶] Fake ass posers get beat
down.”4 Defendant’s MySpace page also featured photographs of defendant throwing
Sureño gang hand signs. Defendant last logged onto his MySpace page the day before
his arrest for the current offenses.
       Even though the rifle’s magazine was not taken from Pineda’s truck when his rifle
was stolen, law enforcement officers found a magazine with the rifle when they
recovered it in defendant’s bedroom, suggesting that defendant intended or was prepared
to use the rifle. There was also some indicia of gang affiliation (blue-colored clothing
and a plastic bin with what appeared to be gang graffiti) in defendant’s bedroom, where
the stolen rifle was located.
       Moreover, defendant knowingly possessed a recently stolen rifle, telling deputies
it belonged to his brother. According to the gang expert, gang members typically used
stolen firearms to commit crimes, but the mere possession of a firearm benefited the gang
because firearms can be used to create fear and garner respect from fellow gang members
and others. Defendant’s possession of the rifle was significant not only because the
pledge on his MySpace page demonstrated his willingness to use gunfire to kill rival gang
members and for retaliation, but also because the primary activities of the Sureño gang




4 “X3,” “southsider” and “Sur” were terms associated with the Sureño gang. Norteños
identified with the color red and the number 14. “Norputos” and “buster” were
derogatory terms that Sureños used to refer to Norteños. According to the gang expert,
“Click click bang bang” referred to gunfire.

                                             11
included the commission of crimes that involved the use of firearms. The gang expert
explained that respect drove almost everything a gang member did. The gang expert said
gang members knew who owned or had a weapon, and those weapons could be used to
gain respect from fellow gang members and for retaliation and intimidation.
       The jury could reasonably infer from all of the above that at the time of his arrest,
defendant was a proud Sureño gang member, and he was willing to use a firearm to kill
rival gang members or for another purpose that would benefit the Sureño gang. The fact
that defendant was not in the company of fellow gang members when officers found the
stolen rifle did not preclude a finding that defendant acted for the benefit of his gang.
(People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139 [stating in dicta that a lone gang
member who commits a gang-related felony is subject to an enhanced sentence under
section 186.22, subd. (b)(1)]; see, e.g., People v. Garcia, supra, 153 Cal.App.4th 1499.)
       The cases upon which defendant relies are inapposite because, as we have
explained, the gang expert’s opinion that defendant’s criminal conduct was gang related
was supported by substantial evidence which connected defendant’s possession of the
rifle to the Sureño gang. (In re Frank S., supra, 141 Cal.App.4th at pp. 1195, 1199 [in a
case involving the carrying of a concealed dagger with a gang enhancement, substantial
evidence did not show that the minor possessed a knife for a gang-related purpose where,
among other things, there was no evidence that the minor had any reason to expect to use
the knife in a gang-related offense]; People v. Ochoa, supra, 179 Cal.App.4th at pp. 661-
664 [no evidence connecting carjacking and armed robbery to defendant’s gang other
than gang expert’s impermissible opinion that defendant committed the crime for the
benefit of his gang]; People v. Ramon (2009) 175 Cal.App.4th 843, 851-853 [fact that
defendant was with fellow gang member and in gang territory when he was stopped in a
stolen vehicle and found in possession of an unregistered firearm was insufficient to
permit gang expert to conclude that defendant acted with the requisite intent for a gang



                                             12
enhancement].) In addition, here the gang expert’s opinion was not based solely on
defendant’s criminal history and gang membership.
       Reversal on the ground of insufficiency of the evidence “is unwarranted unless it
appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to
support’ ” the jury’s finding. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Viewed in
the light most favorable to the judgment, the gang expert’s testimony and other
substantial evidence in the record support the reasonable inference that defendant
possessed the rifle for the benefit of his gang and that he intended to promote, further or
assist criminal conduct by gang members by so doing. Accordingly, reversal is not
warranted.
                                             III
       Defendant further claims there is insufficient evidence to establish that the rifle
found in his bedroom was stolen. He argues the conviction on count 1 for receiving
stolen property must be reversed because the victim, Pineda, did not identify the rifle
found in defendant’s bedroom as the rifle stolen from Pineda’s truck, and there was no
admissible evidence that the rifle recovered from defendant’s bedroom was the same rifle
stolen from Pineda. In particular, defendant maintains that Pineda’s testimony that he
contacted the store where he purchased his rifle, obtained the serial number for the rifle,
and reported that serial number to the authorities constitutes inadmissible hearsay.
       At trial, Pineda was asked whether he provided law enforcement officers with the
serial number of his rifle. Pineda responded affirmatively. When Pineda said “the store I
bought it from --,” defense counsel objected on the grounds of foundation and hearsay
before Pineda completed his sentence. The trial court overruled the objections. Pineda
then said, “I contacted the store where I bought it from and they sent the paperwork over
from, I guess, the headquarters or something, and then they gave me a copy of the receipt,
and it had the serial numbers, so from there I called the sheriff’s office and gave them the
serial number.” Defense counsel again objected on hearsay grounds and moved to strike

                                             13
Pineda’s testimony. The trial court overruled the objection. Pineda did not tell the jury
the serial number contained in the receipt, and the prosecution did not offer the receipt
into evidence at the trial.
       Hearsay evidence is “evidence of a statement that was made other than by a
witness while testifying at the hearing and that is offered to prove the truth of the matter
stated.” (Evid. Code, § 1200, subd. (a).) A statement is an “(a) oral or written verbal
expression or (b) nonverbal conduct of a person intended by him as a substitute for oral
or written verbal expression.” (Evid. Code, § 225.) Pineda’s testimony that he contacted
the store where he bought his rifle, the store gave him a copy of his receipt for the
purchase of the rifle, and he gave law enforcement authorities the serial number for his
rifle is not hearsay because the testimony evidences nonassertive conduct, not
“statements.” (Sen. Com. on Judiciary, com., 29B pt. 4 West’s Ann. Evid. Code
(1995 ed.) foll. § 1200, p. 4 [“evidence of a person’s conduct out of court is not
inadmissible under the hearsay rule expressed in Section 1200 unless that conduct is
clearly assertive in character. Nonassertive conduct is not hearsay”]; People v. Cowan
(2010) 50 Cal.4th 401, 482 [conduct without any associated expression of meaning does
not constitute a statement].)
       In any event, other substantial evidence supports the jury’s finding that the rifle
found in defendant’s bedroom was stolen property. At trial, Pineda testified that the rifle
found in defendant’s bedroom looked like the one stolen from Pineda’s truck. The rifle
found in defendant’s bedroom was the same make, model and color as Pineda’s rifle.
Defendant lied about the origin of the rifle in his bedroom, from which the jury could
reasonably infer consciousness of guilt. (People v. McFarland (1962) 58 Cal.2d 748,
754-755.)
       In addition, Pineda gave law enforcement officers the serial number for his rifle.
Colusa County Sheriff’s Department records and dispatch supervisor Bertha Ortega
testified that, as part of her duties, she received a telephone call from a person who

                                             14
identified himself as Roberto Pineda and who provided her with the serial number of a
stolen rifle. Ortega wrote down the serial number provided by Pineda. Over defense
counsel’s objection, Ortega was permitted to testify that the serial number Pineda
provided was 92441758, which was the same serial number on the rifle found in
defendant’s bedroom. Further, Sergeant Dale Johnson testified that a search using the
California law enforcement telecommunications system showed that the rifle found in
defendant’s bedroom had been reported stolen. Defendant does not challenge the
admission of Ortega or Johnson’s testimony on appeal. Defendant’s claim fails under the
applicable standard of review which favors the judgment. (People v. Nelson, supra, 51
Cal.4th at p. 210.)
                                             IV
       Defendant also argues the trial court abused its discretion in denying defendant’s
request to reduce his count 2 charge [former § 12021, subd. (d)(1) -- possessing a firearm
in violation of an express probation condition] to a misdemeanor pursuant to section 17,
subdivision (b). Defendant claims count 2 should have been reduced to a misdemeanor
because the circumstances of his present offenses did not warrant two strikes under the
three strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). On appeal, he repeats
arguments asserted in the trial court: that he was arrested one day after his 18th birthday,
and his constructive possession of stolen property and unlawful possession of a firearm
were based on the same act and would not have constituted serious felonies but for the
gang enhancement findings.
       A violation of former section 12021, subdivision (d)(1) can be either a felony or a
misdemeanor. (Stats. 2008, ch. 599, § 4; Stats. 1998, ch. 960, § 1, p. 7034.) The parties
do not dispute that the trial court had discretion to reduce count 2 to a misdemeanor under
section 17, subdivision (b).
       A trial court has broad authority in ruling on a motion to reduce an offense to a
misdemeanor. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 973, 977

                                             15
(Alvarez).) We review the trial court’s ruling for abuse of discretion. (Id. at pp. 977-
978.) We presume the trial court considered all relevant sentencing criteria in denying a
defendant’s motion to reduce an offense to a misdemeanor unless the record affirmatively
demonstrates otherwise. (Ibid.) “ ‘The burden is on the party attacking the sentence to
clearly show that the sentencing decision was irrational or arbitrary. [Citation.]’ ” (Ibid.)
The trial court’s “ ‘decision will not be reversed merely because reasonable people might
disagree. “An appellate tribunal is neither authorized nor warranted in substituting its
judgment for the judgment of the trial judge.” [Citations.]’ [Citations.]” (Id. at p. 978.)
       The factors to be considered by a trial court in evaluating a motion to reduce a
felony to a misdemeanor under section 17, subdivision (b) include “ ‘the nature and
circumstances of the offense, the defendant’s appreciation of and attitude toward the
offense, or his traits of character as evidenced by his behavior and demeanor at the trial.’
[Citations.] When appropriate, judges should also consider the general objectives of
sentencing such as those set forth in California Rules of Court, rule [4.410.] The
corollary is that even under the broad authority conferred by section 17(b), a
determination made outside the perimeters drawn by individualized consideration of the
offense, the offender, and the public interest ‘exceeds the bounds of reason.’ ”5 (Alvarez,
supra, 14 Cal.4th at p. 978, fn. omitted.)
       Here, the trial court ruled on defendant’s motion after considering the probation
report, defendant’s sentencing brief and motion, the evidence the prosecution submitted
at the sentencing hearing, and oral argument by counsel. The probation report described


5 Rule 4.410(a) of the California Rules of Court provides, “General objectives of
sentencing include: [¶] (1) Protecting society; [¶] (2) Punishing the defendant; [¶]
(3) Encouraging the defendant to lead a law-abiding life in the future and deterring him
or her from future offenses; [¶] (4) Deterring others from criminal conduct by
demonstrating its consequences; [¶] (5) Preventing the defendant from committing new
crimes by isolating him or her for the period of incarceration; [¶] (6) Securing restitution
for the victims of crime; and [¶] (7) Achieving uniformity in sentencing.”

                                             16
defendant’s juvenile adjudications, the fact that the current offenses were committed the
day after defendant turned 18, the nature and circumstances of the current offenses,
defendant’s regret about his conduct, along with other mitigating and aggravating factors,
including whether the defendant presented a danger to others if not imprisoned. The
record does not clearly demonstrate that the trial court was unaware of its discretion to
reduce count 2 to a misdemeanor or that it failed to consider facts concerning the current
offenses, the defendant, or the public interest when it denied defendant’s motion. Absent
a clear showing that the trial court abused its discretion in declining to reduce count 2 to a
misdemeanor, we cannot set aside the trial court’s discretionary determination. (Alvarez,
supra, 14 Cal.4th at pp. 977-978.)
                                      DISPOSITION
       The judgment is affirmed.



                                                               MAURO                        , J.


We concur:


             NICHOLSON                   , Acting P. J.


             HULL                       , J.




                                               17
                                       APPENDIX A

       At the time of the offenses, section 12021 provided as follows:

        “(a)(1) 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 12001.6, or who is addicted
to the use of any narcotic drug, and who owns, purchases, receives, or has in his or her
possession or under his or her custody or control any firearm is guilty of a felony.

      “(2) Any person who has two or more convictions for violating paragraph (2) of
subdivision (a) of Section 417 and who owns, purchases, receives, or has in his or her
possession or under his or her custody or control any firearm is guilty of a felony.

        “(b) Notwithstanding subdivision (a), any person who has been convicted of a
felony or of an offense enumerated in Section 12001.6, when that conviction results from
certification by the juvenile court for prosecution as an adult in an adult court under
Section 707 of the Welfare and Institutions Code, and who owns or has in his or her
possession or under his or her custody or control any firearm is guilty of a felony.

         “(c)(1) Except as provided in subdivision (a) or paragraph (2) of this subdivision,
any person who has been convicted of a misdemeanor violation of [enumerated statutes]
. . . and who, within 10 years of the conviction, owns, purchases, receives, or has in his or
her possession or under his or her custody or control, any firearm is guilty of a public
offense, which shall be punishable by imprisonment in a county jail not exceeding one
year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. . . . [¶] . . . [¶]

        “(d)(1) Any person who, as an express condition of probation, is prohibited or
restricted from owning, possessing, controlling, receiving, or purchasing a firearm and
who owns, purchases, receives, or has in his or her possession or under his or her custody
or control, any firearm but who is not subject to subdivision (a) or (c) is guilty of a public
offense, which shall be punishable by imprisonment in a county jail not exceeding one
year or in the state prison, by a fine not exceeding one thousand dollars ($1,000), or by
both that imprisonment and fine. . . . [¶] . . . [¶]

       “(e) Any person who (1) is alleged to have committed [specified offenses] and (2)
is subsequently adjudged a ward of the juvenile court within the meaning of Section 602
of the Welfare and Institutions Code because the person committed an offense [in the
same list of offenses] shall not own, or have in his or her possession or under his or her
custody or control, any firearm until the age of 30 years. A violation of this subdivision

                                              1
shall be punishable by imprisonment in a county jail not exceeding one year or in the
state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine. . . . [¶] . . . [¶]

        “(g)(1) Every person who purchases or receives, or attempts to purchase or
receive, a firearm knowing that he or she is prohibited from doing so by a temporary
restraining order or injunction . . . , or a protective order . . . is guilty of a public offense,
which shall be punishable by imprisonment in a county jail not exceeding one year or in
the state prison, by a fine not exceeding one thousand dollars ($1,000), or by both that
imprisonment and fine.

       “(2) Every person who owns or possesses a firearm knowing that he or she is
prohibited from doing so by a temporary restraining order or injunction . . . [or] a
protective order . . . is guilty of a public offense, which shall be punishable by
imprisonment in a county jail not exceeding one year, by a fine not exceeding one
thousand dollars ($1,000), or by both that imprisonment and fine. . . .” (Stats. 2008, ch.
599, § 4.)


       Section 12021, subdivision (d)(1) is now found in section 29815. (2 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Public Peace and Welfare, §
240, p. 945.) Section 29815 provides, in pertinent part:


        “(a) Any person who, as an express condition of probation, is prohibited or
restricted from owning, possessing, controlling, receiving, or purchasing a firearm and
who owns, purchases, receives, or has in possession or under custody or control, any
firearm, but who is not subject to Section 29805 or subdivision (a) of Section 29800, is
guilty of a public offense, which shall be punishable by imprisonment in a county jail not
exceeding one year or in the state prison, by a fine not exceeding one thousand dollars
($1,000), or by both that imprisonment and fine.”




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