Filed 6/2/17 P. v. Hernandez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

GLORIA MARIA HERNANDEZ,

Defendant and Appellant.


E063777

(Super.Ct.No. SWF1302392)

ORDER MODIFYING OPINION
AND DENYING PETITION FOR
REHEARING
[NO CHANGE IN JUDGMENT]


The petition for rehearing is denied. The opinion filed in this matter on May 3, 2017, is modified as follows:
Page three, lines nine to 10, delete the phrase “with cartridges in the chamber.”
Page eight, lines four to five, delete the sentences, “Nevertheless, there were bullets in the chamber. It was loaded.” In its place, substitute: “Where the gun and the loaded magazine were together, available for immediate use, it is deemed loaded.”
Page eight, lines 13 to 14, delete the sentence “In the present case, the officer found cartridges in the chamber of the gun, which meant the gun could be fired.”
Page 8, line 16, delete “Based on the cartridges in the chamber,” and capitalize the “T” of “there.”
Except for these modifications, the opinion remains unchanged. The modifications do not affect a change in the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:



MILLER
J.



FIELDS
J.


Filed 5/3/17 P. v. Hernandez CA4/2 (unmodified version)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO



THE PEOPLE,

Plaintiff and Respondent,

v.

GLORIA MARIA HERNANDEZ,

Defendant and Appellant.


E063777

(Super.Ct.No. SWF1302392)

OPINION


APPEAL from the Superior Court of Riverside County. John M. Monterosso, Judge. Affirmed.
Thien Huong Tran, 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, Randall D. Einhorn and Peter Quon, Jr., Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Gloria Maria Hernandez was arrested and charged after a search of her residence turned up bindles of methamphetamine, scales, and a loaded gun. A jury convicted defendant of possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)), receiving stolen property (Pen. Code, § 496, subd. (a)), and resisting a peace officer (Pen. Code, § 148, subd. (a)). She was placed on three years’ formal probation. She appealed the convictions.
On appeal, defendant contends that there was insufficient evidence (1) that she possessed methamphetamine while armed with a loaded firearm in count 2; and (2) that she knew the stolen property, a handgun, was stolen in count 4. We affirm.
I
FACTUAL BACKGROUND
Edward Hernandez was a documented gang member who was on probation. On July 23, 2013, members of the Riverside County Regional Gang Task Force (Gang Task Force) conducted a probation compliance check in San Jacinto, at the residence of defendant and her family, in order to check on Edward Hernandez, her son. Defendant informed the officers that Edward was not there, but a deputy saw someone peer through blinds of the front window. Defendant admitted the officers into the residence through a side door, and they commenced a probation search.
Once inside, officers saw Edward come out of the master bedroom. The officers detained Edward and found his friend hiding in the room. The officers then searched the room. In the area between the wall and the bed, sheriff’s deputies found a pouch containing a green package and a clear plastic bag containing multiple small bindles of suspected methamphetamine. There were a total of 36 bindles. A separate bindle was found on a nightstand together with a pink bag and a bottle of nail polish.
On the side of the bed opposite the night table with the nail polish was another night table with a black digital scale. On that same side of the bed, officers looked under the bed and found a locked safe. When asked about the safe, defendant told the officers where the key to the safe could be found, and that it contained a gun belonging to her husband. The safe was opened, revealing a Beretta handgun, with cartridges in the chamber, along with a magazine loaded with 10 bullets and a box of ammunition. The gun had been reported stolen.
Defendant admitted to the deputy that the separate bindle of methamphetamine was hers, but said she did not know where the pouch came from. She initially told him that the bedroom was hers and that nobody else was allowed in the room. When the deputy told her that he had seen her son come out of the room, she said that her children and grandchildren had access to the room.
Defendant, her daughter, and her daughter’s boyfriend were detained on the patio, outside the master bedroom. A border patrol officer, who was part of the Gang Task Force, was present with defendant to watch over the defendant and the other persons detained outside. From the patio, one could see through a sliding glass door into the master bedroom. After the other officers began the search, defendant became “verbally agitated.” She demanded that the officer close the exterior door leading to the kitchen so as to prevent bees from entering the residence. During the course of the search, defendant became more physically agitated and would not sit still. She did not comply with the officer’s directions to sit down and banged on the sliding glass door. The officer took her into custody because she was interfering with the officers who were inside the house.
However, when the officer approached defendant, she assumed a fighting stance, with her chest puffed out and her fists in front of her at chest level. The officer believed she would strike him, so he grabbed her left hand and tried to secure it behind her back, but defendant spun away. The officer pinned defendant against a wall and attempted to secure her other hand, but defendant lost her footing and fell into the chair where she had been sitting previously. The officer again attempted to gain hold of defendant’s right hand, but defendant stood up. The officer grabbed her left shoulder and swept her legs out from under her, taking her to the ground. The officer then got on top of her on the ground, while the probation officer, also a member of the Gang Task Force, came to assist securing her hands in the handcuffs.
On February 6, 2014, defendant was charged with possession for sale of methamphetamine (Health & Saf. Code, §11378, count 1), with special allegations that she was personally armed with a firearm (Pen. Code, § 12022, subd. (c)), and that she had previously been convicted of a felony drug offense. (Health & Saf. Code, §11370.2, subd. (c).) She was also charged with possession of methamphetamine while armed with a loaded firearm (Health & Saf. Code, § 11370.1, count 2), being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1), count 3), possessing stolen property (Pen. Code, § 496, subd. (a), count 4) and resisting arrest. (Pen. Code, § 148, subd. (a)(1), count 5.) It was further alleged that defendant had previously been convicted of a felony for which she had served a prison term, within the meaning of Penal Code section 667.5, subd. (b).
Defendant was tried by a jury. Defendant’s husband testified at trial that the gun belonged to him and that he had bought it for $200 three months prior to the probation search. The husband did not remember the name of the man he bought it from. He kept the gun in a safe along with his bank statements from a separate individual account. The safe was under the bed he shared with defendant. According to defendant’s husband, defendant did not know about the gun. He kept the key to the safe hanging on the wall on defendant’s side of the bed, and she never asked what the key was for. The husband admitted that he knew the gun was stolen and that he had paid a lot less than he would have at a store. He had been convicted for illegally purchasing two guns nine years earlier.
Defendant’s son also testified at trial, indicating that the methamphetamine was his, that defendant had not known he was in the house, and that he had hidden it in her room in a panic once the deputies arrived to search.
Upon submission of the cause, the jury could not agree on a verdict as to count 1 and its accompanying special allegations. The jury found defendant guilty of all remaining counts. Subsequently, defendant admitted the prison prior enhancement. At sentencing, the court found unusual circumstances for granting probation. Defendant appealed the convictions.
II
DISCUSSION
1. Sufficiency of Evidence of Possession of Methamphetamine While Armed with a Loaded Firearm
Defendant contends that there was insufficient evidence that the handgun was loaded within the meaning of Health and Safety Code section 11370.1, possession of methamphetamine while armed with a loaded firearm. We disagree.
In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal. 3d 557, 578; see Jackson v. Virginia (1979) 443 U.S. 307, 319-320.) The test for substantial evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Holt (1997) 15 Cal.4th 619, 667-668.) However, it is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence. (People v. Alcala (1984) 36 Cal.3d 604, 623.) If the verdict is supported by substantial evidence, we are bound to give due deference to the trier of fact and not retry the case ourselves. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains reasonable, solid, credible evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (2015) 60 Cal.4th 966, 988.) Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Redmond (1969) 71 Cal. 2d 745, 755.)
Health and Safety Code section 11370.1 punishes individuals who possess substances containing, among other illegal drugs, methamphetamine, “while armed with a loaded, operable firearm.” The statute goes on to provide that “ ‘armed with’ ” means “having available for immediate offensive or defensive use.” (Health & Saf. Code, § 11370.1, subd. (a).) However, in order to be “ ‘armed’ ” within the meaning of section 11370.1, a defendant need not physically carry the firearm on his or her person. (People v. Superior Court (Martinez) (2014) 225 Cal.App.4th 979, 985, 990-993 [defendant arrested in kitchen where a bindle of heroin was found on table, while sawed off shotgun was found in closet of another room].)
In its ordinary use, a firearm is “ ‘loaded’ ” when a shell or cartridge has been placed into a position from which it can be fired. (People v. Clark (1996) 45 Cal.App.4th 1147, 1153.) A firearm “is not ‘loaded’ if the shell or cartridge is stored elsewhere and not yet placed in a firing position.” (Ibid.)
Here, the gun was found with an insertable loaded magazine next to it, but the gun itself had no magazine attached. Nevertheless, there were bullets in the chamber. It was loaded. (See Pen. Code, §§25800, subd. (b) [referring to §§ 25850-26055, providing that a firearm is deemed loaded when there is an unexpended cartridge or shell . . . in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm].)
In People v. Clark, supra, 45 Cal.App.4th 1147, the shotgun at issue had no shell in the firing chamber, but shells were found “in a covered [storage] compartment of the rear of the shotgun’s stock.” (Id. at p. 1152.) The Clark court concluded that the firearm in question was not loaded, rejecting the People’s argument that the firearm was loaded where the ammunition was stored in or adjacent to a firearm. In the present case, the officer found cartridges in the chamber of the gun, which meant the gun could be fired. The facts of the present case are easily distinguishable from those in Clark.
Based on the cartridges in the chamber, there is substantial evidence supporting the verdict that defendant had possessed methamphetamine while armed with a loaded firearm in count 2.
2. Sufficiency of Evidence to Support Receipt of Stolen Property
Defendant also contends that there was insufficient evidence that she knew that the gun was stolen within the meaning of Penal Code section 496, receipt of stolen property. We disagree.
When considering a challenge to the sufficiency of the evidence supporting a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains reasonable, solid, credible evidence from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. (People v. Johnson, supra, 60 Cal.4th at p. 988.) We employ this same standard in evaluating both direct and circumstantial evidence. (Ibid.; People v. Towler (1982) 31 Cal.3d 105, 118.)
We do not invade the province of the jury by reweighing the evidence, or by re-reconciling competing circumstances and redrawing competing inferences from those circumstances; it is the jury—not the appellate court—which must be convinced of the defendant’s guilt beyond a reasonable doubt. (People v. Nguyen (2015) 61 Cal.4th 1015, 1055-1056; People v. Nelson (2011) 51 Cal.4th 198, 210.) “ ‘Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.’ ” (People v. Elliott (2012) 53 Cal.4th 535, 585.)
The crime of receiving stolen property consists of buying or receiving any property that has been stolen, knowing the property is stolen. (Pen. Code, § 496, subd. (a).) “Since direct evidence of defendant’s knowledge rarely exists, circumstantial evidence often comes from ‘possession of stolen property accompanied by no explanation or unsatisfactory explanation, or by suspicious circumstances.’ [Citation.]” (People v. Moses (1990) 217 Cal.App.3d 1245, 1251.) Possession of stolen property may be actual or constructive and need not be exclusive. (People v. Grant (2003) 113 Cal.App.4th 579, 596.)
Here, while on the patio, when defendant was asked about the safe found under the bed, defendant informed the officer that there was a gun inside the safe, that it belonged to her husband, and that the gun had been given to her husband. She was therefore aware that her husband had not purchased the weapon from a legitimate gun shop, where registration forms and background checks would be involved.
Defendant’s husband was aware the gun had been stolen, which was the reason he never registered it. Her husband was also aware that defendant’s criminal record precluded her from legally possessing a firearm. While the husband insisted he never told defendant about the gun and that she did not have the combination or key to the safe, the jury heard evidence contradicting those facts. Given the husband’s criminal record for purchasing guns from “a guy’s trunk” and failing to register them nine years earlier, the jury could reasonably conclude that the husband was lying to protect defendant. And given defendant’s statement that she knew of the safe that contained the gun, and knew where the key to the safe was maintained, the jury could reasonably conclude she was also aware that the gun was stolen.
Accordingly, substantial evidence supported the jury’s finding that defendant knew the gun was stolen.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.
We concur:



MILLER
J.



FIELDS
J.