Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. 155320
Margulies, J.
A jury convicted defendant Aquior Alfonso Figueroa, Jr. of second degree murder and being a felon in possession of a weapon, and found true that these offenses were committed for the benefit of a criminal street gang. Defendant contends his convictions must be reversed because (1) a witness’s photo identification of one of the shooters violated defendant’s state and federal due process rights, (2) the trial court erred in failing to instruct on the lesser included offense of involuntary manslaughter, and (3) the prosecution failed to establish that defendant ever had possession of the carbine rifle brought to the shooting in his automobile. We affirm the judgment.
I. BACKGROUND
Defendant was charged by information with murder (Pen. Code, § 187, subd. (a); count one) and being a felon in possession of a firearm (§ 12021, subd. (a)(1); count two). Count one further alleged that defendant was armed with and personally discharged a firearm during the offense (§§ 12022, subd. (a)(1), 12022.53, subds. (b), (c), (d), (e)(1)); that he committed the offense while an active participant in the Border Brothers street gang (§ 190.2, subd. (a)(22)); and that he committed the offense for the benefit and at the direction of the criminal street gang (§ 186.22, subds. (b), (b)(1)). Count two also alleged that defendant committed the offense for the benefit and at the direction of a criminal street gang (§ 186.22, subd. (b)(1)). Defendant pleaded not guilty and denied the special allegations.
All further statutory references are to the Penal Code.
A jury trial commenced on June 26, 2007.
A. Prosecution Case
1. Evidence Pertaining to the Offenses
On September 3, 2006, Oakland Police Sergeant Eric Lewis was driving in his patrol car on Fruitvale Avenue heading toward Interstate 580. His attention was drawn to two automobiles approaching Fruitvale that appeared to be driving in tandem. The lead car was a green Buick Regal and the second car was a BMW. There were four Hispanic males in each car, all wearing white t-shirts. Lewis ran the license plate number of the BMW and it came back clean.
About seven minutes later, Lewis received a radio broadcast of a shooting and proceeded to the Kragen Auto Parts store at Fruitvale Avenue and Foothill Boulevard. He saw a man, later identified as Jorge Sisneros, lying on his back near the store entrance, with hundreds of people standing around. Lewis later identified the two cars he had seen earlier in a surveillance tape provided by Kragen.
Amy Cobos and her husband drove into the Kragen parking lot shortly before 12:00 noon on September 3, 2006. Just as they parked their car in front of the store, Cobos heard sounds like firecrackers exploding. Her husband yelled at her, “Get down, they’re shooting.” She looked over her right shoulder to see where the noise was coming from. She saw a Latino male shooting at another Latino male. The two were about eight or nine feet apart and the man who was shot fell backwards over a small fence. The other man kept walking closer to him and shooting at him until he was standing over him. He continued shooting down at the man and then stopped. Cobos did not know where the shooter went after he stopped shooting. Cobos estimated that she could see the shooter for a minute and a half to two minutes. She was focused on the shooter’s face because of the “very cold” look he had in his eyes. A couple of weeks before the trial, Sergeant Tim Nolan of the Oakland Police Department showed Cobos at least 13 or 14 photographs to see if she could identify the shooter. She identified a photograph of Hector Sanchez as the shooter at that time, and identified his photograph again in court.
As discussed post, other evidence established that there was more than one shooter. All further references to “the shooter” in this opinion are to the single shooter about whom Amy Cobos testified at trial.
As discussed post, Sanchez’s photograph was the last one shown to Cobos and appeared on a separate page from the other photographs, which were shown to her six to a page.
Ms. Cobos’s husband identified defendant as the driver of a green sedan that drove into the entrance of the Kragen parking lot. As he was parking his car, Mr. Cobos heard two “pops.” He immediately got out of his car to see where the noise came from. When he looked in the direction of the sounds, he saw the green car. He observed a male inside the passenger-side rear compartment of the car with his hand out the window, and he saw the victim staggering backwards. The shooter was about three feet away from the victim. Mr. Cobos yelled for his wife to get down. He saw the victim stagger backwards over a small, two-foot-high fence. As the victim was falling backward, the shooter came out of the vehicle with his right hand extended, and began walking toward the victim. The shooter continued walking until he was standing over the supine victim, with his legs apart. He kept shooting down at the victim until he “finished off his gun.” Mr. Cobos could see fire coming out of the gun and dust coming off of the ground. When he was finished, the shooter turned around and got back into the green car. The car’s tires “screeched” as the car left the scene, heading north on Fruitvale in the direction of Interstate 580.
Mr. Cobos went over to the victim, Jorge Sisneros, put his arm under the victim’s neck, and asked him, “Who did this to you?” Sisneros answered, “The dude in the BMW.” Sisneros then told Mr. Cobos that he was dying and closed his eyes. By the time the paramedics arrived a few minutes later, Sisneros had already died.
Sisneros died from multiple gunshot wounds. He was struck or grazed by 15 bullets. Evidence of a total of 22 shots was retrieved from the scene, eight from a.22-caliber firearm that could have been either a handgun or a rifle and 14 from a single.30-caliber carbine.
Eyewitnesses gave the police license plate numbers and descriptions of the cars. The Buick was registered to defendant. He was arrested on September 26, 2006, while driving the Buick.
2. Gang Testimony
The prosecution’s gang expert, Eugene Guerrero, testified as to the history, structure, membership, and activities of the Border Brothers gang. According to Guerrero, the gang’s rivals were the Norteños and associated gangs. A Norteño-affiliated gang claims the area surrounding the intersection of Fruitvale Boulevard and Foothill Avenue as its “turf.”
Guerrero opined that defendant was a member of the Border Brothers gang on the basis of the following evidence: (1) after defendant was arrested, police found a t-shirt in his bedroom memorializing a Border Brothers member named Vicente “No-No” Gomez Zepeda, who had been killed; (2) a 1998 assault victim, Mark Dominic, identified Eduardo Pena, a Border Brothers gang member, and defendant, as his assailants; (3) when defendant and Pena were contacted by police about the Dominic assault they were in the company of another self-admitted Border Brothers gang member; (4) defendant had previously been arrested while driving a vehicle containing a firearm; (5) defendant was present on April 30, 2006 at Highland Hospital with two other Border Brothers gang members after another gang member was brought there by private automobile with gunshot wounds; (6) defendant was present on June 13, 2006 at the funeral of Vicente “No-No” Gomez Zepeda, at which defendant and others were flashing gang signs; (7) the person Amy Cobos identified as the shooter of Jorge Sisneros, Hector Sanchez, was a self-admitted Border Brothers gang member; and (8) Alejandre Chaidez, who was stopped driving the BMW used in the shooting of Sisneros, was a self-admitted Border Brothers gang member.
Sanchez was shot and killed on September 16, 2006.
In Guerrero’s opinion, the present offenses— the Sisneros shooting and defendant’s possession of the firearm—were committed for the benefit and at the direction of the Border Brothers gang to gain and maintain respect for the gang and its reputation.
B. Defense Case
Defense gang expert, Marco Arvizo, opined that there are many occasions in which nongang members can and do flash gang signs and wear gang colors and that someone who flashes gang signs is not necessarily admitting they are a gang member.
Defendant testified that he was 25 years old. In September 2006, he lived in San Leandro with his mother, father, and sister. Hector Sanchez was his friend. At the time of the Sisneros shooting, defendant owned a two-toned, green-and-gray Buick sedan. Since many of his friends did not have cars, he would be asked “all the time” to give them rides. On one such occasion, the morning of September 3, 2006, Hector Sanchez called him and asked him to go to 98th Avenue and Bancroft Avenue in Oakland to give a ride to some of Hector’s friends. Because he had given rides to friends many times before, defendant agreed and drove to 98th and Bancroft. When he arrived, he found a BMW already there. Four people entered his car. Some others were already sitting in the BMW. Hector was not there and defendant did not see Hector that day.
Defendant denied that he was a member of the Border Brothers gang and, when asked what he thought he was going to do when he picked people up at 98th and Bancroft, defendant stated, “I believed I was just going to drop them off.” Defendant followed the BMW at all times. Nobody told him exactly where they were going. He saw no weapons on any of the occupants and had no weapon himself. As he was driving, there was no discussion among the car’s occupants of their intention to shoot anyone and defendant had no idea that a shooting was contemplated by them. He did not have “even the wildest idea that a shooting was going to take place.” As they approached Foothill and Fruitvale, the BMW pulled over and defendant pulled in behind it. Without warning, a number of people “hopped” out of his car and “a whole lot of shooting” suddenly erupted. Defendant was “in shock” and “paralyzed.” He ducked down, uncertain whether the shooting was directed at him. When his passengers returned to the car, he drove off. He knew that the people he was with had shot somebody. After defendant dropped his passengers off at 98th and Bancroft, he called Hector, and asked him why he would put him in such a situation, and told Hector never to do that again. Defendant was “highly upset” about what had happened.
Defendant did nothing to change his appearance or the appearance of his car after the shooting. He did not call the police because he was scared of what would happen to his family if he was arrested. After being arrested, he told the police what had happened and described the people who were with him and gave police the nicknames of two of them. He did not know their real names.
Defendant denied that the 1998 assault incident had any relationship to gangs. He testified that although he attended the funeral of a gang member and flashed gang signs at the funeral, he did so only to show respect for the man that passed away and not because he was a gang member.
C. Verdicts, Sentencing, and Appeal
A jury found defendant guilty of second degree murder on count one, and guilty of being a felon in possession of a firearm as charged in count two. The jury found true the weapon and gang enhancement allegations made in connection with count one and the gang allegation made in connection with count two.
Defendant was sentenced on count one to 15 years to life with an additional one-year sentence stayed for the gun use finding under section 12022, subdivision (a)(1), and 10 years stayed for the gang enhancements; and 25 years to life, to run consecutively, for the enhancements under section 12022.53, subdivisions (d) and (e). On count two, defendant was sentenced to the mid-term of three years and the aggravated term of four years for the gang enhancements, both sentences to run concurrently with the aggregate sentence of 40 years to life under count one.
This timely appeal followed.
II. DISCUSSION
Defendant contends his convictions must be reversed because (1) witness Amy Cobos’s photo identification of Hector Sanchez as the shooter violated defendant’s state and federal due process rights, (2) the trial court erred in failing to instruct on the lesser included offense of involuntary manslaughter, and (3) the prosecution failed to establish that defendant maintained control of a weapon.
A. Photo Identification of the Shooter
1. Facts
On May 24, 2007, Sergeant Robert Nolan of the Oakland Police Department met with Amy Cobos at the police station to see if she could identify the shooter from a photographic lineup. Nolan instructed Cobos not to guess or conclude anything from the fact that he was showing her the photographs. He further informed her that people’s complexions could appear different in the photographs and that their hairstyles and facial hair could change. Although the police department has a printed admonition form that officers can read to witnesses before they are shown a photo lineup, Nolan did not read that form to Cobos and could not restate verbatim the admonitions he gave Cobos.
Nolan showed Cobos a total of 19 photographs. The first 18 photographs were presented to Cobos in three one-page lineups displaying six equal-sized photographs that were laser-printed on each page. After Cobos looked at each of the lineup pages for some time, she told Nolan she could not recognize anyone and Nolan would hand her the next page. When Cobos had finished looking at the third lineup without recognizing anyone, Nolan took out a page containing a single photograph, which was larger than the others, and showed it to Cobos. It was a photograph of Hector Sanchez. Her first words after looking at it were, “I’m gonna say that’s him.” She picked the photograph up, kept looking at it, and seemed to shake her head while saying, “That’s him. That’s him.” She told Nolan that the man in the photograph was the shooter.
Printed text appeared immediately beneath Sanchez’s photograph listing Sanchez’s “PFN” number (a unique number assigned to arrestees), his first and last names, and a booking date in 2002. Nolan had also handwritten Sanchez’s nickname, “Lechuga,” below the printed text. When Cobos first saw the photograph, the writing was covered with another piece of paper. Nolan testified that Cobos nonetheless might have been able to see the writing when she picked the page up to take a closer look at the photograph.
Nolan testified that he had intended to make another photographic lineup page, but the copy machine had problems. He decided to show Cobos single photographs from his case packet, but she made an identification of the first photograph he showed her. Although Nolan had two more photographs to show Cobos, he decided not to show them because she had only seen one shooter and had selected the photograph of the man she believed he was. Through oversight, Nolan did not have Cobos date and sign the photograph she had identified.
2. Analysis
Defendant contends the procedure by which Amy Cobos identified Sanchez as the shooter she saw standing over the victim was so unduly suggestive and conducive to a mistaken identification that admission of her in-court identification of the same photograph resulted in the denial of due process. (See People v. Caruso (1968) 68 Cal.2d 183, 187–189 [reversing conviction because defendant was the only lineup participant with the size, complexion, or hair characteristics the witness had described].) Suggestive identification procedures are invalid because they deny a defendant the due process right not to be subjected to likely misidentification. (People v. Floyd (1970) 1 Cal.3d 694, 711, disapproved on other grounds in People v. Wheeler (1978) 22 Cal.3d 258, 287, fn. 36.)
A threshold question in this case is whether defendant may claim that his due process rights were violated by an eyewitness’s photo identification of another person as the shooter. On this issue, defendant relies on People v. Bisogni (1971) 4 Cal.3d 582 (Bisogni). The issue presented in Bisogni was whether an armed robbery defendant had standing to raise a due process objection to the procedure used to identify a friend of his as one of the robbers. (Id. at p. 586.) Because the defendant had offered an alibi defense that he and the friend were elsewhere when the robbery was committed (id. at p. 584), the Supreme Court agreed that he did have standing: “[W]henever the identity of a confederate is essential to prove the defendant’s participation in a crime and when, as here, such evidence effectively destroys the defense offered by the defendant, he has standing to challenge the fairness of the identification procedures of the alleged coparticipant.” (Id. at p. 586.)
Defendant argues that just as in Bisogni, “the identity of the confederate [in this case] is essential to prove the defendant’s participation in the offense.” But in fact the identity of Sanchez in this case was not essential to prove defendant’s involvement in the killing of Sisneros. Defendant admitted that he drove one of the cars used to carry out the shooting and carry the shooters away from the scene. Hector Sanchez’s identity did not prove defendant’s involvement. Moreover, Cobos’s identification of Sanchez as one of the shooters did not destroy the defense of unwitting participation defendant offered. Defendant testified that Sanchez asked him to pick up some guys and give them a ride. He further testified that Sanchez told him he was not going to be there. But for all defendant knew, Sanchez was one of the passengers in the BMW. Defendant never offered any evidence negating that possibility and his defense did not depend on whether Sanchez was present or not.
Defendant testified that when he arrived at Bancroft and 98th Avenue, he pulled up behind the BMW and saw there were already people in the car. Defendant never testified that he got out of his car at the meeting location or at any time before he got home. According to defendant, he never saw anybody enter or exit the BMW, there was no communication between the two cars, he never pulled up alongside the BMW, and he did not even know whether anyone was sitting in the back seat of the BMW. By defendant’s account, he called Sanchez after the shooting to yell at him. When he was finished yelling, he hung up on Sanchez and heard nothing further about him until he learned Sanchez had been killed less than two weeks later.
On these grounds, we find that Bisogni is distinguishable and that defendant lacks standing to complain about the procedure the police used to identify Sanchez. (See People v. Pervoe (1984) 161 Cal.App.3d342, 358–359 [defendant lacked standing to contest single-photo identification of his sister since she was not charged as a coparticipant in the crime].) However, even assuming for the sake of analysis that defendant does have standing to object to the identification of Sanchez, we would find under the totality of the circumstances that the identification was not constitutionally unreliable.
Defendant bears the burden of demonstrating an unreliable identification procedure. (People v. Ochoa (1998) 19 Cal.4th 353, 412.) The court first determines whether the identification procedure was unduly suggestive so as to give rise to “ ‘a very substantial likelihood of irreparable misidentification.’ ” (Manson v. Brathwaite (1977) 432 U.S. 98, 116.) If the court concludes that the procedure was not unduly suggestive, the due process inquiry ends. (Ochoa, at p. 412.) Even if the court concludes the procedure was unduly suggestive, evidence of the identification may still be admissible if the court determines the identification was reliable under the totality of the circumstances. (Ibid.) The factors to be considered in determining reliability include “ ‘the opportunity of the witness to view the criminal at the time of the crime, the witness’s degree of attention, the accuracy of [her] prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.’ ” (Ibid.) We review de novo the trial court’s ruling that the pretrial identification procedure was not unduly suggestive. (People v. Kennedy (2005) 36 Cal.4th 595, 609.)
In our view, Cobos’s identification of Sanchez was reliable under the totality of the circumstances. She had an unobstructed view of the shooter’s face in broad daylight. Due to the deliberate manner in which the shooter went about his business, she could see his face for more than a few seconds. Her attention was focused on the shooter’s face because of the unusual look he had in his eyes. She was not under the stress of being the target of the crime. Moreover, the identification procedure used here, while certainly no model of good police practice, was not the functional equivalent of a one picture show-up, as defendant claims. Sergeant Nolan admonished Cobos not to guess or conclude anything from the fact that he was showing her the photographs, and there was no evidence he showed her Sanchez’s photograph separately because the police believed he was the shooter Cobos had seen. Cobos looked at 18 photographs before she got to Sanchez’s, with no sign that she recognized anyone. When shown Sanchez’s photograph, she reacted immediately and expressed a high degree of certainty that he was the shooter. Given the totality of the circumstances, we find no substantial likelihood that Cobos’s reaction was caused by the size of the photograph or the manner in which it was presented to her.
We therefore reject defendant’s due process challenge to his murder conviction. Defendant lacks standing to raise the issue and, even assuming defendant can raise the issue, the eyewitness’s identification of Sanchez as the shooter was not constitutionally unreliable.
B. Involuntary Manslaughter Instruction
Defendant contends the court prejudicially erred in failing to instruct on the lesser included offense of involuntary manslaughter. He points out that defendant was prosecuted as an aider and abettor of the Sisneros murder on the theory that he drove his car that day with knowledge of the shooters’ plan to kill a rival gang member and with the intent to aid and abet the commission of that crime. According to defendant, when the jury did not convict him of first degree murder it necessarily rejected the prosecution’s argument that defendant knew the shooters’ plan because, if the jury believed defendant knew the plan, it would have found that he shared the shooters’ premeditated intent to kill and would have returned a first degree murder conviction. In defendant’s view, had the jury been given the option of finding him guilty of the lesser included offense of involuntary manslaughter, it might well have done so. He insists the jury could have found that his conduct in giving rides to gang members without inquiring into their intentions constituted criminal negligence, one of the recognized bases for an involuntary manslaughter conviction. (See People v. Lee (1999) 20 Cal.4th 47, 61; CALCRIM No. 580.) It is defendant’s position that either (1) the court had a sua sponte duty to give the lesser included offense instruction or, if it did not, (2) his trial counsel was incompetent in failing to request it.
The jury was instructed in relevant part as follows under CALCRIM No. 401: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] One, the person committed the crime—the perpetrator committed the crime; [¶] Two, the defendant knew that the perpetrator intended to commit the crime; [¶] Three, before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and [¶] Four, the defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator’s unlawful purpose and he or she specifically intends to, and does, in fact, aid, facilitate, promote, encourage or instigate the perpetrator’s commission of that crime.”
In our view, the trial court had no duty to instruct on involuntary manslaughter whether such instruction had been requested or not. A court need only instruct on a lesser included offense where there is evidence from which a rational trier of fact could conclude beyond a reasonable doubt that the defendant was guilty of the lesser crime. (People v. Ceja (1994) 26 Cal. App.4th 78, 85, overruled on other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 91.) There is no evidence in the record before us that would have supported a conviction for involuntary manslaughter based on criminal negligence.
CALCRIM No. 580 defines criminal negligence as follows: “Criminal negligence involves more than ordinary carelessness, inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1. He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶] AND [¶] 2. A reasonable person would have known that acting in that way would create such a risk. [¶] In other words, a person acts with criminal negligence when the way he or she acts is so different from the way an ordinarily careful person would act in the same situation that his or her act amounts to disregard for human life or indifference to the consequences of that act.”
In People v. Watson (1981) 30 Cal.3d 290 (Watson), the California Supreme Court highlighted the differences between involuntary manslaughter and second degree murder as follows: “[Criminal negligence] has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences. [Citation.] On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life. [Citations.]... Implied malice contemplates a subjective awareness of a higher degree of risk than does gross negligence, and involves an element of wantonness which is absent in gross negligence. [Citations.] [¶] Furthermore, we have applied different tests in determining the required mental states of gross negligence or malice. A finding of gross negligence is made by applying an objective test: if a reasonable person in defendant’s position would have been aware of the risk involved, then defendant is presumed to have had such an awareness. [Citation.] However, a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard. [Citation.]” (Id. at pp. 296–297, italics added.)
Defendant implicitly acknowledges that his trial testimony, if believed by the jury, would have been inconsistent with a criminal negligence finding. According to that testimony, defendant was unaware of the gang affiliations of the occupants of the two cars and had no idea of their homicidal intentions. He was merely giving some men a ride as a favor to his friend, Hector. He had given people rides “all the time,” without previous incident. He saw no weapons and did not have “even the wildest idea that a shooting was going to take place.” If the jury had believed defendant’s testimony, his conduct could not have constituted criminal negligence because it does not come close to evidencing “so slight a degree of care as to raise a presumption of conscious indifference to the consequences.” (Watson, supra, 30 Cal.3d at p. 296.)
But defendant posits an alternative scenario in which the jury believed some but not all of his testimony. He argues in particular that the jury “could have found that in unquestioningly responding to Hector Sanchez’s phone call, in allowing known gang members to be driven around by him without inquiry and in fleeing the scene,” he was acting so differently from the way an ordinarily careful person would act that his conduct showed disregard for human life or indifference to the consequences of his action. Defendant speculates that a properly instructed jury might have seen this conduct as being no different in nature from that of a parent who leaves her child with a known child abuser (People v. Valdez (2002) 27 Cal.4th 778), or a man who furnishes a weapon to one who says he intends to commit murder (People v. Howk (1961) 56 Cal.2d 687).
We are not persuaded. To begin with, defendant’s proposed scenario does not show criminal negligence. It would not be a gross departure from ordinary care—comparable to turning a child over to a known child abuser or handing a weapon to a person wanting to commit murder—to give an automobile ride to known gang members. A person of ordinary carefulness would not automatically assume that gang members intend to kill someone every time they travel in an automobile. The other fact mentioned in defendant’s scenario—that he fled the scene after the killing occurred—would not make the jury any more likely to find that he was guilty of gross negligence in facilitating the killing. If anything, defendant’s flight tends to negate any claim of negligence, criminal or otherwise. We could speculate about what a hypothetical jury might have done had it disbelieved other selected elements of defendant’s story—his denial that he saw any guns, for example, or that there was any discussion in the car about what was planned—yet somehow believed that defendant remained oblivious to what was afoot. But such speculation would be completely disconnected from the actual record in this case and from the essential assumption that jurors rationally assess the evidence. In our view, no rational jury would believe the defendant had mostly lied to them about what he saw, heard, and knew, yet fail to infer from the true state of facts and from defendant’s materially false testimony about it that he knew exactly what was going to happen. The jury could have come to only two possible conclusions from this record: either defendant acted with criminal malice or he committed no crime at all. That the jury returned a verdict of second degree murder in this case does not in any way suggest that it would have been open to finding defendant had no subjective awareness of the risk to human life posed by his conduct.
Because an involuntary manslaughter instruction was unwarranted by the evidence, we cannot say that trial counsel’s performance in failing to request it was deficient nor that defendant was prejudiced as a result. Defendant’s ineffective assistance claim therefore also fails. (Strickland v. Washington (1984) 466 U.S. 668, 687 [successful ineffective assistance claim under federal law requires showing that defense counsel’s performance was deficient and defendant was prejudiced thereby]; People v. Scott (1997) 15 Cal.4th 1188, 1211–1212 [same under state law].)
C. Weapon Possession
Defendant contends that his conviction for possession of a firearm must be reversed because there was no evidence that he ever maintained control of a weapon.
Defendant was convicted for violating section 12021, subdivision (a)(1), which provides in relevant part: “Any person who has been convicted of a felony... 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.” The prosecution’s theory was that defendant constructively possessed the weapon used by an occupant in his car to shoot Sisneros. There was testimony establishing that the two weapons used to kill Sisneros included a.30-caliber rifle that would have been 36 inches in length if unmodified. If modified to reduce or remove the shoulder stock, the rifle could have been 24 to 30 inches long. Based on the location of the.30-caliber bullet casings and the store surveillance tape showing the location of the Buick, it can be inferred that the.30-caliber weapon came out of the Buick defendant was driving. Alfred Milam, who looked out the window of the Kragen store on September 3, 2006 when he heard shots being fired, testified that he saw a four-door car, blue or green in color, which was partially blocking the driveway. As shown by the store video and Milam’s identification of photographs of the Buick, this was the vehicle defendant was driving. The Buick’s front passenger door was open and a man was standing near it shooting a “long” weapon, which Milam estimated was about three feet long. Milam testified that he saw the shooter bend down and pull the gun out of the car from “where the passenger is sitting and where the feet are placed.”
Defendant claims Milam testified that the shooter came out of the rear of the car and that the prosecutor misstated the evidence in his closing argument. The reporter’s transcript does not support defendant’s claim.
As defendant acknowledges, a theory of “constructive possession” is “established by showing that defendant maintained some control or right to control... contraband in the physical possession of another.” (People v. Rogers (1971) 5 Cal.3d 129, 134.) This requires evidence that the defendant either did exercise or was capable of exercising control of the object. (Armstrong v. Superior Court (1990) 217 Cal.App.3d535, 539–540.) Here, there was substantial evidence showing that a three-foot-long rifle was lying within defendant’s reach on the floor of the front passenger compartment of his vehicle as he drove it to the murder scene. It may be inferred from the evidence that defendant knew the gun was there, and could have picked it up at any time if he had a reason to do so.
In Rideout v. Superior Court (1967) 67 Cal.2d 471, the California Supreme Court found probable cause sufficient to warrant the prosecution for marijuana possession of two back seat passengers in an automobile found to contain marijuana. The marijuana was located in a well behind the back seat, within reach of both passengers. The court stated: “[T]he magistrate could reasonably have inferred that petitioners had possession of the marijuana and knowledge of its presence since they were the ones in closest proximity to the place where it was found, the place apparently was accessible to them, and they had an opportunity to deposit the marijuana there when the police directed the car in which they were riding to pull over.” (Id. at p. 475; see also People v. Nieto (1966) 247 Cal.App.2d 364, 368 [evidence that guns were found under the front seat of the defendant’s car when he was driving the vehicle is circumstantial evidence of joint or constructive possession, custody or control of the guns sufficient to sustain his conviction].)
Defendant cites United States v. Bernal (9th Cir.) 719 F.2d 1475, which held that the presence of a gun in a vehicle occupied by more than one person does not establish who owns or possesses the gun. (Id. at p. 1479.) Bernal is inapposite because it relies on a Nevada court’s interpretation of a Nevada gun possession statute.
In our view, sufficient circumstantial evidence of constructive possession was presented at trial to support the jury’s verdict on count two.
III. DISPOSITION
The judgment is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.