Filed 8/25/20 P. v. Mobley 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                        (Shasta)
                                                            ----



 THE PEOPLE,

                    Plaintiff and Respondent,                                                  C089802

           v.                                                                       (Super. Ct. No. 16F3035)

 DONALD JAMES MOBLEY,

                    Defendant and Appellant.




         A jury found defendant Donald James Mobley guilty of possessing two assault
weapons. Earlier, during the presentation of defendant’s evidence at trial, defendant
moved for judgment of acquittal, arguing the prosecution’s evidence was insufficient to
establish that he possessed the weapons or that he had knowledge of the characteristics
that made the guns illegal. The trial court denied the motion and ultimately sentenced
defendant to one year four months, suspended execution of the sentence for three years,
and placed defendant on probation.




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       Defendant now reiterates his contention that the prosecution’s evidence was
insufficient as to his possession and knowledge. Finding that substantial evidence
supports the denial of the motion and the jury’s verdicts, we will affirm the judgment.
                                       BACKGROUND
       As relevant to this appeal, the People charged defendant with two counts of
possessing an assault weapon (Pen. Code, § 30605, subd. (a))1 based on his alleged
possession of an AR-15 and an AK-47. At trial, the prosecutor called two witnesses.
A sheriff’s deputy described the search of defendant’s house. During the search deputies
found a gun safe in the master bedroom, about five feet from the bed. The safe contained
eight guns, including an AK-47 and an AR-15 with a 30-round magazine attached.
Officers found numerous rounds of ammunition and other guns around the house
including a semiautomatic pistol next to the bed in the master bedroom, two shotguns in
the living room, and a revolver in a second bedroom.
       Section 30605, subdivision (a) makes it a criminal offense to possess an assault
weapon. At the time of defendant’s offense, the definition of an assault weapon included
a semiautomatic, centerfire rifle with the capacity to accept a detachable magazine and a
pistol grip that protrudes conspicuously beneath the action of the weapon. The definition
also included a semiautomatic, centerfire rifle with a fixed magazine having the capacity
to accept more than 10 rounds. (Former § 30515, subd. (a)(1)(A), (2).) The prosecution
presented the testimony of a sheriff’s deputy and weapons expert who had participated in
the search. He testified that when he first looked in the gun safe, the AR-15 and AK-47
stood out to him. After closer inspection, he confirmed both weapons met the definition
of an assault weapon under California law. The expert explained to the jury that a
centerfire rifle has a firing pin that hits a primer in the middle of a centerfire bullet, and in




1 Undesignated statutory references are to the Penal Code.


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this case both guns were centerfire rifles. The AR-15 had a fixed 30-round magazine
attached to it permitting the gun to accept more than the 10-round limit, making it an
assault weapon. And the expert said the AK-47 had a detachable magazine and a
conspicuously protruding pistol grip, making it an assault weapon. Throughout his
testimony, the expert pointed to photographs of the two guns to show the jury the features
he described.
       Defendant called three witnesses. The first two witnesses discussed a charity that
defendant had co-founded. The charity held events once a month with activities
including barbequing and shooting guns. The shooting took place about a half-mile from
defendant’s house and involved the guns from the safe. The first witness, L.B., testified
he never saw defendant participate in the shooting and never saw defendant handle the
guns from the safe. The second witness, J.S., supervised the shooting range at the events
and testified he made sure everybody followed the law, including using the appropriate
magazines and not using automatic weapons. Defendant’s wife would bring J.S. the guns
from the safe and J.S. said he never saw defendant access the safe or handle the weapons.
       Before defendant presented his final witness, he moved for judgment of acquittal
pursuant to section 1118.1, arguing the prosecution’s evidence was insufficient to prove
defendant possessed the weapons or that he knew or reasonably should have known the
characteristics making them assault weapons. The trial court denied the motion, finding
that the evidence up to that point had established that defendant had joint control of the
weapons in the house and should have known the characteristics making the guns assault
weapons.
       Defendant then presented his third witness, his wife T.B., who testified that all the
guns in the house were hers and she was the only one with access to the safe. She kept
the only key to the gun safe in her purse. According to T.B., the AR-15 was used only
during the charity events and the AK-47 was never fired. She acknowledged that
defendant oversaw the charity events.

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           The jury found defendant guilty on both counts and the trial court sentenced him
to one year four months, but suspended execution of sentence for three years and placed
defendant on probation.
                                         DISCUSSION
           Defendant contends the prosecution’s evidence was insufficient to establish that he
possessed the weapons or that he had knowledge of the characteristics that made the guns
illegal.
                                                A
           We review the record in the light most favorable to the judgment to determine
whether it discloses substantial evidence. (People v. Snow (2003) 30 Cal.4th 43, 66.)
Substantial evidence is evidence that is “reasonable, credible and of solid value -- from
which a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt.” (Ibid.) From the evidence, we draw all inferences supporting the jury’s verdict.
(People v. Olguin (1994) 31 Cal.App.4th 1355, 1382.) Before the judgment can be set
aside for insufficient evidence, “it must clearly appear that on no hypothesis whatever is
there sufficient substantial evidence to support the verdict of the jury.” (People v. Hicks
(1982) 128 Cal.App.3d 423, 429.)
           “In determining whether the evidence was sufficient either to sustain a conviction
or to support the denial of a section 1118.1 motion, the standard of review is essentially
the same.” (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1182, abrogated on other
grounds by People v. Rangel (2016) 62 Cal.4th 1192, 1216.) “Notably, however,
‘[r]eview of the denial of a section 1118.1 motion made at the close of a prosecutor’s
case-in-chief focuses on the state of the evidence as it stood at that point.’ ” (Hajek and
Vo, at p. 1183.)
           Although defendant only discusses the prosecution’s evidence, our review is not
so limited. We examine, for substantial evidence, the entire record in reviewing the
sufficiency of the evidence to support the jury verdict, and we examine the evidence

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admitted at the time of the motion for judgment of acquittal in reviewing the sufficiency
of the evidence to support denial of the motion.
                                             B
       Possession of a firearm can be actual or constructive. Although a defendant has
actual possession when the weapon is in his or her immediate possession or control, i.e.,
when he or she is actually holding or touching it (People v. Bay (2019) 40 Cal.App.5th
126, 132), dominion and control may be inferred when the contraband is discovered in a
place over which the defendant has general dominion and control, such as his or her
residence, automobile, or personal effects (People v. Jenkins (1979) 91 Cal.App.3d 579,
584). Dominion and control may also be inferred when the contraband is immediately
accessible. (People v. Miranda (2011) 192 Cal.App.4th 398, 410.)
       Criminal possession laws require both “knowledge of the object’s existence and of
one’s control over it” and “a degree of scienter regarding the character of the firearm.”
(In re Jorge M. (2000) 23 Cal.4th 866, 885, italics omitted.) The latter is established if
the “the defendant knew or reasonably should have known the firearm possessed the
characteristics” making it an assault weapon. (Id. at p. 887, italics omitted.) For this
element, the California Supreme Court explained: “[B]ecause of the general principle
that all persons are obligated to learn of and comply with the law, in many circumstances
a trier of fact properly could find that a person who knowingly possesses a semiautomatic
firearm reasonably should have investigated and determined the gun’s
characteristics. The exceptional cases in which the salient characteristics of the firearm
are extraordinarily obscure, or the defendant’s possession of the gun was so fleeting or
attenuated as not to afford an opportunity for examination, would appear to be instances
of largely innocent possession that . . . the Legislature presumably did not intend to be
subject to felony punishment.” (Id. at p. 885.) “The question of the defendant’s
knowledge or negligence is, of course, for the trier of fact to determine, and depends
heavily on the individual facts establishing possession in each case.” (Id. at pp. 887-888.)

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                                             C
       The trial court’s denial of defendant’s motion for judgment of acquittal is
supported by substantial evidence. The trial court reasonably concluded defendant
possessed the two guns. The prosecutor’s evidence established the weapons were kept at
defendant’s house in his bedroom five feet from his bed. Defendant’s general dominion
and control of his house and the close proximity of the guns permits a reasonable
inference defendant constructively possessed the guns. (See People v. Busch (2010)
187 Cal.App.4th 150, 162 [finding driver possessed marijuana found in the car even
where a passenger may have had joint control].) Though L.B. and J.S. testified never
seeing defendant handle the guns, they were not always present at defendant’s house and
the jury could have disbelieved their testimony.
       There is also ample evidence defendant should have known the illegal
characteristics of the two guns. The characteristics were visible and readily discernable.
The AR-15 magazine could hold 30 rounds, three times the legal limit, and the AK-47
had a detachable magazine with a conspicuously protruding pistol grip. Both guns were
centerfire rifles, which is distinguishable by its firing pin. The expert was able to show
those features from photographs of the guns. The expert also testified that, when he
looked in the safe, the two guns were immediately noticeable to him as possibly illegal.
The numerous weapons in defendant’s home indicate general firearm knowledge and
further supports knowledge of the illegal characteristics.
       Defendant had opportunity to investigate the illegal nature of the AR-15 and AK-
47. He knew the guns were removed monthly to be used at events he oversaw. The
evidence supports a determination this was not an exceptional case in which the salient
characteristics of the weapons were extraordinarily obscure justifying a departure from
the general principal that defendant was obligated to learn and comply with the law.
There is substantial evidence supporting the trial court’s denial of defendant’s motion.



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      Substantial evidence also supports the jury’s verdict for the same reasons, and the
addition of T.B.’s testimony reinforces this conclusion. Her testimony supports
knowledge and possession because she confirmed the guns were routinely removed from
the safe for events defendant oversaw. In addition, the jury could have disbelieved her
testimony that she was the only one who accessed the safe and instead reasonably relied
on defendant’s general control of the house. Defendant’s contentions lack merit.
                                     DISPOSITION
      The judgment is affirmed.



                                                   /S/
                                                MAURO, J.



We concur:



    /S/
RAYE, P. J.



    /S/
RENNER, J.




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