Filed 3/13/18 P. v. Castro-Vasquez CA4/3




NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

JUAN EDUARDO CASTRO-VASQUEZ,

Defendant and Appellant.


G053808

(Super. Ct. No. 15NF3368)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Shiela F. Hanson, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A police officer stopped a car after seeing an expired registration. The car initially pulled over, but when the officer got out of his vehicle, the driver drove a little bit further, before stopping again. When the officer ordered the driver to get out of the car there was a noticeable delay and the officer could see the car shake. The officer later searched the car. He found methamphetamine and the component parts of a disassembled handgun near the driver’s seat and the front passenger floorboard.
The jury convicted the driver, defendant Juan Eduardo Castro-Vasquez, of possessing a controlled substance while armed with a loaded, operable firearm. The jury also found true a related sentencing allegation that defendant possessed a concealed, unregistered firearm and unexpended ammunition that was readily accessible to him.
Defendant essentially argues the evidence was insufficient because the handgun was disassembled (and therefore inoperable and not readily accessible) when the officer found it. But the evidence supports a reasonable inference that defendant disassembled the firearm during the traffic stop. Therefore, we affirm the judgment.

I
FACTS AND PROCEDURAL BACKGROUND
On December 17, 2015, just after 11:00 p.m., Buena Park Police Officer Mario Escamilla was on patrol in his police vehicle, following a 1997 BMW sedan. Escamilla checked the license plate and learned that the vehicle’s registration was expired. Escamilla drove alongside the BMW and tried to look inside, but its windows were tinted (23:11:28).

The Traffic Stop
Officer Escamilla positioned his police vehicle directly behind the BMW and activated the overhead emergency lights (23:11:43). The BMW continued driving towards a freeway on-ramp, then it stopped along the right side of the road (23:11:53). Escamilla noticed that another unidentified vehicle had also pulled over to the side of the road in front of the BMW. Escamilla first adjusted his police vehicle’s spotlights, then he got out of the vehicle in order to contact the driver of the BMW. Escamilla saw the unidentified vehicle in front of the BMW drive away, then he noticed that the BMW also began to roll forward towards the freeway on-ramp (23:12:06). Escamilla quickly got back in his vehicle and followed the BMW, which was moving forward at a very slow pace. Escamilla became concerned that the BMW was going to try to evade the traffic stop, so he began to activate his police vehicle’s sirens and air horns. The BMW then stopped for a second time (23:12:28).
Officer Escamilla now did not feel safe approaching the BMW because the driver did not roll his window down—which most drivers usually do—so Escamilla yelled at the driver to exit the BMW. Escamilla yelled several times while standing outside of his police vehicle, but there was no response. Escamilla noticed that the BMW was shaking back and forth during this time, but the shaking of the BMW was not visible on his vehicle’s dashcam video, which recorded the traffic stop.
Officer Escamilla then returned to his vehicle, “leaving the driver door open because I was concerned for my safety and I began to use my P.A. system . . . again asking the driver to exit the vehicle.” Escamilla “continued calling for the driver to exit the vehicle, and he subsequently rolled down the window and I saw a set of hands out the driver window [(23:13:42)].” From the moment Escamilla initially activated his emergency lights until the moment defendant put his hands outside of the window was approximately two minutes.
Escamilla ordered the driver, defendant, to exit the BMW and go to the curb. Defendant complied and sat down on the curb as instructed. Two other people also got out of the car. Kathleen Renteria got out of the front passenger seat; Juan Soto got out of the right rear passenger seat. After other backup officers arrived, Escamilla searched the BMW.

Search of the BMW and its Occupants
On the center console Officer Escamilla found a glass pipe used to smoke methamphetamine and a bag of methamphetamine weighing approximately 0.5 grams. Buena Park Police Officer Patrick Bates assisted in the search and discovered approximately 17.4 grams of methamphetamine hidden just inside of the rear vent of the center console. Bates also found 2.4 grams of methamphetamine located in Soto’s shoe. Another officer searched Renteria and found three small baggies of methamphetamine in her jacket pocket.
Officer Escamilla located a slide and barrel to a semiautomatic handgun underneath a floor mat on the right front passenger floorboard. He also found a spring and a rod for a handgun underneath the floor mat on the driver’s side. Escamilla noticed that behind the steering wheel that “the speedometer and gauge console appeared to be protruding slightly.” Escamilla removed the panel and “found a lower receiver to a semiautomatic handgun, and that lower receiver had a magazine inserted and locked into the magazine well, and the magazine had 12 rounds of live ammunition inside of it.”
Later, with the assistance of Officer Bates, Officer Escamilla assembled the firearm pieces. Escamilla performed a “function test,” or a simulated firing of the handgun (without live ammunition), and determined that the weapon “should be operable.” Escamilla also identified the firearm’s serial number, ran a check, and learned that it was not registered to anyone in the vehicle.
Officer Escamilla interviewed defendant at the police station. Defendant admitted that the methamphetamine and the pipe belonged to him, but he said that he was not selling the methamphetamine. Defendant also said that the gun belonged to him, that he had bought it from someone a long time ago, but he did not remember that person’s name or how much he paid for it. When he was asked why he was carrying the gun defendant said, “Just ‘cause—[¶] . . . [¶] Because I wanted to. (Inaudible[.])”
Escamilla asked defendant when he had disassembled the gun. Defendant said: “Since, a long time ago, umm, since a long time ago, yeah.” He said, “I put the magazine and s**t in the dashboard, and then I put the f***in’ whatever that s**t is under the seat.” Escamilla asked defendant, “So, um, why was the car shaking when I was trying to get you out of the car.” Defendant said, “If you, okay, if you could back [sic] right now and turn the car, it’s going to misfire.”

Court Proceedings
A jury found defendant guilty of: possession of a firearm by a felon; possession of a concealed firearm in a vehicle; possession of a controlled substance; possession of a controlled substance with a firearm; and possession of ammunition by a prohibited person. (Pen. Code, §§ 29800, subd. (a)(1), 25400, subd. (a)(1), 30305, subd. (a)(1); Health & Saf. Code, §§ 11377, subd. (a), 11370.1, subd. (a).) The jury also found true an allegation that while defendant was in possession of a concealed firearm in a vehicle, both the firearm and the unexpended ammunition capable of being discharged from the firearm were in the immediate possession of defendant or readily accessible to him. (§ 25400, subd. (c)(6).) The trial court imposed a two-year prison term.
II
DISCUSSION
Defendant argues that there was insufficient evidence to support both his conviction for the substantive crime of possessing a controlled substance while armed with a loaded, operable firearm, as well as the related firearm sentencing allegation.
The standard of review is well-settled, this court reviews “the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that 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.” (People v. Snow (2003) 30 Cal.4th 43, 66.) “The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.” (In re Amanda A. (2015) 242 Cal.App.4th 537, 545.)
It is not our role to reweigh the evidence, resolve factual conflicts, or judge credibility issues. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless 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 on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d 294, 314.)

The Substantive Crime
“Notwithstanding . . . any other provision of law, every person who unlawfully possesses . . . methamphetamine . . . while armed with a loaded, operable firearm is guilty of a felony . . . . [¶] As used in this subdivision, ‘armed with’ means having available for immediate offensive or defensive use.” (Health & Saf. Code, § 11370.1, subd. (a).)
In this case, the trial court instructed the jury that the prosecution needed to prove: “While possessing [methamphetamine], the defendant had a loaded, operable firearm available for immediate offensive or defensive use[.]” (CALCRIM No. 2303.) The court further instructed the jury that: “A firearm is loaded when a shell or cartridge has been placed into a position from which it can be fired.” (CALCRIM No. 2303; People v. Clark (1996) 45 Cal.App.4th 1147, 1153.)
Defendant does not challenge the jury’s findings that he unlawfully possessed methamphetamine and that he was in possession of a firearm. Neither does he challenge the trial court’s instructions to the jury. What he argues is that the “weapon was not loaded because the slide, barrel, and spring were not attached to the lower receiver, and thus there was no way to load a round into the chamber and fire the weapon.” (Italics added.)
We agree that when Officer Escamilla found the pieces of the firearm in three locations in defendant’s BMW, the weapon was plainly not capable of being fired and therefore it was not “loaded” within the meaning of the statute. However, there was evidence supporting a reasonable inference that the weapon was loaded just before the traffic stop and defendant and/or his passengers disassembled and hid the component parts of the weapon during the stop.
Officer Escamilla testified that when he first saw defendant’s BMW he drove alongside it to look in, but its windows were tinted. Although Escamilla could not see into the BMW, it is a reasonable inference that defendant and/or his passengers were able to see out and may have spotted Escamilla’s police vehicle. Defendant was a convicted felon, in possession of a weapon and methamphetamine, so it is also a reasonable inference that defendant and/or his passengers began to disassemble and hide the weapon as soon as they were aware of Escamilla’s presence. Defendant also was not able to explain to Escamilla when he purportedly disassembled the weapon.
Further, while not visible on the dashcam video, Escamilla’s testimony regarding the movement of the BMW during the traffic stop supports an inference that the movement was due to hiding the component parts of the handgun. We must presume in support of the judgment the existence of every fact that the jury could have reasonably deduced from the evidence. (In re Amanda A., supra, 242 Cal.App.4th at p. 545.) We must also accept the credibility determinations of the jury. (People v. Jones, supra, 51 Cal.3d at p. 314.)
As far as the time necessary to disassemble the firearm, Officer Bates testified as the prosecution’s expert on the 9mm semiautomatic Taurus handgun. Bates explained that he had used a Beretta 92FS handgun for nine years, which was a “similar or exact model” to the Taurus handgun found in the BMW. Bates said that he had received training and had experience disassembling the handgun. Bates also described that in order to disassemble this particular firearm “the simple process is there’s a slide lock or slide release.” He said that the release is located just above the trigger guard. While looking at a photograph of the weapon, Bates explained to the jury that the release “actually flips up, and the whole portion of that gun just slides off.”
Officer Bates said that in addition to releasing the upper slide portion of the gun, moving the release mechanism separates the spring, the rod, and the barrel from lower receiver portion. Bates said that no other manipulations or tools were needed in order to disassemble the weapon. During his testimony, Bates was not permitted to estimate the time necessary to disassemble the weapon. However, Bates’ testimony appeared to establish that the weapon could be easily disassembled within moments.
Further, Officer Escamilla testified that when he found the lower receiver portion of the firearm, the magazine was inserted and locked into it with 12 rounds of live ammunition. Thus, it is a reasonable inference that defendant’s semiautomatic handgun was loaded (the rounds were placed into a position from which they could be fired) and the firearm was available for defendant’s use just before the traffic stop.
Defendant argues that: “Even assuming, arguendo, that there was sufficient evidence the weapon was loaded and available for immediate offensive or defensive use, there was an absence of substantial evidence that the weapon was an operable firearm.” We disagree. Officer Escamilla testified that he performed a positive “function test” by assembling the weapon and pulling the trigger. Based on his test, Escamilla determined that the weapon “should be operable.” Although Escamilla did not actually test fire the weapon with live ammunition, the jury was free to weigh all of the evidence and either accept or reject Escamilla’s testimony.

The Sentencing Allegation
“A person is guilty of carrying a concealed firearm when the person . . . [c]arries concealed within any vehicle that is under the person’s control or direction any pistol, revolver, or other firearm capable of being concealed upon the person.” (§ 25400, subd. (a)(1).) Generally, the crime of having a concealed firearm in a vehicle is a misdemeanor, but it becomes a felony under certain conditions. One condition is when the person is not the registered owner and the firearm is loaded. Another condition is when the person is not the registered owner of the concealed firearm “and the unexpended ammunition capable of being discharged from it are in the immediate possession of the person or readily accessible to that person.” (§ 25400, subd. (c)(6)(A).)
In this case, the prosecution proceeded only on the second set of conditions and the court instructed the jury accordingly: “To prove this allegation, the People must prove that: [¶] 1. The defendant is not listed with the Department of Justice as the registered owner of the firearm; [¶] AND [¶] 2. The firearm and unexpended ammunition capable of being discharged from that firearm were either in defendant’s immediate possession or readily accessible to him or her[.]”
Defendant argues that: “Because the firearm was disassembled and its parts were hidden in three different places . . . the weapon and ammunition were not readily accessible to [him].” But this argument fails for the same reasons we have already discussed. That is, based on the delay in the traffic stop, Officer Escamilla’s testimony about the movement of the vehicle, and the other circumstantial evidence, there is a reasonable inference that the weapon was assembled and operable just before the traffic stop. Thus, there is sufficient evidence that the weapon and the ammunition capable of being discharged from the weapon were in defendant’s possession or were readily accessible to defendant just before the traffic stop.

III
DISPOSITION
The judgment is affirmed.



MOORE, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.