Filed 2/25/14 P. v. Quijas CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,
Plaintiff and Respondent,

v.

ALFREDO QUIJAS , Defendant and Appellant. B 247395
(Los Angeles County Super. Ct. No. BA401090 )

APPEAL from a judgment of the Superior Court of Los Angeles County, Anne H. Egerton , Judge. Affirmed

. Joy A. Maulitz , under appointment b y the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael
Katz , Deputy Attorneys General, for Plai ntiff and Respondent.2

The jury convicted defendant and appellant Alfredo Quijas of t wo firearm
offenses: (1) unlawful firearm activity in violation of Penal Code section 29805 (count 1) ; and (2) carrying a loaded handgun in violation of section 25850, s ubdivision (a) (count 2). 1 As to count 2, t h e jury found true the allegation that defendant was not the registered owner of the handgun , which made the offense punishable as either a felony or

a misdemeanor

. 2 (§ 25850, subd. (c)(6).) 3 On count 1, the p rincipal offense, the court imposed the low term of 1 6 month s. On count 2, the court imposed a felony sentence o f 16 month s , which was stayed under
section 654. On appeal, d efendant c ontends that because the evidence failed to show the gun was not regis tered to him
, h is sentence on count 2 must be reduced to that of a
misdemeanor under section 25850, subdivision (c)( 7 )

. 4 We conclude, however, that the jury’s finding was supported by substantial evidence
, and we therefore affirm

.

1 All further undesignated statutory references are to the Penal Code.

2 On count 3, the jury acquitted defendant of resisting a police officer in violation of section 69, a felony, but convicted him of the lesser included offens e of resisting a police officer in violation of section 148, subdivision (a)(1), a misdemeanor. Defendant received a 365

- day sentence on count 3, to be served concurrently with the sentence on count 1. Because defendant received 432 custody credits (216 days actual custody; 216 days conduct credit), he was given time served on count 3.

3 “Where the person is not listed with the Department of Justice pursuant to Section 11106 as the registered owner of the handgun, [the offense is punishable] by impris onment pursuant to subdivision (h) of Section 1170, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment.” (§ 25850, subd. (c)(6).)

4 “In all cases other than those specified in paragraphs (1) to (6), inclusive, [the offense is] punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.” (§ 25850, subd. (c)(7).)3 BACKGROUND

Defendan t does not challenge his conviction of s ection 29805 (count 1) , which prohibits person s w ith certain misdemeanor convictions from owning, possessing, or carrying a firearm for a 10

- year period following the conviction

. 5 Defendant also does not challenge h is conviction of section 25 850 , subdivision (a) ( count 2 ) , which prohibits
the carrying of a loaded firearm in public. The sole issue on appeal is whether the felony sentence on count 2 was supported by s ubstantial evidence that the handgun was not regist ered to defendant. D efendant contends the prosecution’s evidence regarding handgun registration

— a three

- page printout of a California Law Enforcement Telecommunications System (CLETS) computer search (exhibit 9)

— was insufficient to
show that the weapon wa s not registered to him. At trial, the prosecution elicited the testimony of Los Angeles Police Department Officer Melissa Angert that a hand gun with serial number 967086 was found at the scene of defendant’s arrest. The prosecutor then stated, “I have a three

- page certified document pertaining to that handgun. If I could have that marked as People’s 9?” The prosecution presented no live testimony concerning exhibit 9, which was admitted into evidence without objection. Page one of exhibit 9 containe d the gun’s serial number (“967086”) and included the following statements: “DATA IN APPS. [¶] NO HITS FOUND.” “NOTICE: A
‘NO HITS’ RESPONSE IN APPS INDICATES THE SUBJECT IS NOT CURRENTLY LISTED IN THE DATABASE.” Page two contained the gun’s serial nu mber (“967086”) and the defendant’s name (“Quijas, Alfredo”)

. Page 3 contained the following notation: “No Record SER/967086.” It also contained the following signed and dated certification: “I, Maria Carranza, an employee of the Los Angeles County
Dis trict Attorney’s Office, hereby do certify that on this date I accessed the California

5 The jury was instructed pursuant to the parties’ stipulation that defendant had suffered a qualifying misdemeanor conviction that prohibited him from possessing a firearm for 10 years.4

Law Enforcement Telecommunications System (CLETS) through the computer terminal in the Central Priors Unit of the Los Angeles District Attorney’s Office. I entered Seri al 967086 obtained from the Police Data Worksheet and received the attached printout from
CLETS. [¶] I further certify that the attached is a true and original document received from the CLETS system by the District Attorney’s Central Priors Unit.”
T h e trial court in structed the jury that all exhibits had been admitted into evidence and could be considered, along with all other admissible evidence, in reaching its
decision. As to the allegation in count 2 that the gun was not registered to defendant, the trial court instructed the jury: “If you find the defendant guilty of unlawfully carrying a loaded firearm under count 2, you must then decide whether the People have proved the additional allegation that the defendant was not the registered owner of the firearm. To prove this allegation, the People must prove that the defendant is not listed with the Department of Justice as the registered owner of the firearm.”
In his closing argument, the prosecutor cited e xhibit 9 as evidence that the handgun wa s un registered , which meant that the handgun could not have been registered

to defendant. The prosecutor stated in relevant part: “ I know it ’ s a lot of legal details, but, basically, count 1 and count 2 have to do with a firearm. They ’ re two different

c ounts. The first one is that a person, because they have a certain conviction, cannot be
in possession

— can never be in legal possession of a firearm. So that ’ s, you know, unlawful firearm activity. As you ’ ve already heard, the lawyers have agreed that the defendant has a qualifying misdemeanor conviction. We are not arguing about that and you have to accept that as a fact. So the only thing you have to decide is whether or not he actually had a gun and, in count two, you have to decide whether or not he had a loaded gun that was not registered to him, a similar type of offense. It ’ s a little technical difference and you have some documentation in your exhibits, e xhibit n umber 9, I believe, that shows that the serial number that was specific to this f irearm

— that this gun is not a registered handgun, therefore, it cannot be registered to the defendant. That is also something, I believe, that counsel will not contend. So those are some technical things. ”5

In her closing argument, defense counsel did not refer to the gun registration issue.
Defense counsel argued that defendant should be acquitted o f counts 1 and 2 because he had nothing to do with the gun in question

. Defense counsel sought to discredit the testimony of Officer Bryan Schilling

— “ the only officer who saw Mr. Quijas with a gun ”
and the “ only officer who found the gun ”

— as unreliable and “not honest

. . . in a couple
of areas.” Defense counsel stated that because the entire case turned on Officer Schilling ’ s credibility, “ you have to re ally question whether what ’ s coming from him is trustworthy and reliable. ” Pursuant to the parties’ stipulation, the exhibits and jury instructions were sent into the jury room during deliberations. T he jury returned guilty verdict s on counts 1 and 2

an d found true the allegation in count 2 that the gun was not registered to defendant

. The jury acquitted defendant of the charged offense in count 3, but convicted him of a lesser included offense of resisting a police officer
, a misdemeanor. T he court en tered judgment and t his timely appeal followed.

DISCUSSION

Defendant contends that because the evidence was insufficient to support the jury’s finding in count 2 that the gun was not registered to him, his sentence on count 2
must be reduced to that of a misdemeanor. For the reasons that follow, we disagree.

I. Standard of Review

“‘“ The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses
substan tial 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. [Citations.] ‘“ [I]f 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. ” ’ [Citation.] ‘ The standard of review is the same in6

cases in which the People rely mainly on circumstantial evidence. [ Citation.] “ Although it is the duty of the [finder of fact] to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the [finder of fact], not the appellate court which must be
convinced of the defendant ’ s guilt beyond a reasonable doubt. ” ’” [Citation.]

“‘“ An appellate court must accept logical inferences that the [finder of fact] might
have drawn from the circumstantial evidence. ” [Citati on.] “ Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact]. ” ’ [Citatio n.] ” ( People v. Hamlin (2009) 170 Cal.App.4th 1412, 1426.)

II. Exhibit 9, Which Was Admitted Without Objection, Supports a Reasonable Finding That the Gun Was Not Registered to Defendant
The record indicates that because defendant was denying ownership and possession of the handgun, he was not seriously disput ing the allegation in count 2 that
the hand gun was not registered to him . This is not surprising given the stipulation that as a result of his prior misdemeanor conviction, defendant could not lawf ully possess a
firearm for 10 years

. His prior misdemeanor conviction coupled with his denial of the present firearm possession charges made it unlikely that defense counsel would want to cast doubt on her client’s defense by objecting to the prosecution’ s evidence that the gun was not registered to him. (See, e.g., Melendez

- Diaz v. Massachusetts (2009) 557 U.S. 305, 328 [“ It is unlikely that defense counsel will insist on live testimony whose effect will be merely to highlight rather than cast doubt upon the forensic analysis. Nor will defense attorneys want to antagonize the judge or jury by wasting their time with the appearance of a witness whose testimony defense counsel does not intend to rebut in any
fashion. ”].)
Because exhibit 9 was admitted wit hout objection, t he prosecutor was free to argue th at th e exhibit proved that the handgun was not registered to anyone and
,7

therefore
, could not have been registered to defendant. Based on our examination of exhibit 9, we believe the prosecutor’s argument provided a valid interpretation of the
document that the jury was free to accept or reject as it saw fit. We therefore reject defendant’s claim of insufficient evidence. Finally, we note there is a rule of convenience and necessity that, although not addressed by the parties, support s the finding that the handgun was not registered to
defendant. A s explained in People v. Mower (2002) 28 Cal.4th 457, 477 , “[t] he rule of convenience and necessity declares that, unless it is ‘ unduly harsh or unfair, ’ the ‘ burden of proving an exonerating fact may be imposed on a defendant if its existence is

“ peculiarly ” within his personal knowledge and proof of its nonexistence by the prosecution would be relatively difficult or inconvenient. ’ [Citations.]” (See Peop le v. Boo Doo Hong (1898) 122 Cal. 606 [rule was applied to affirm the defendant’s conviction of practicing medicine without a license, notwithstanding the absence of any
evidence that the defendant was unlicensed ]; 5 Witkin & Epstein, Cal. Criminal Law (3 d ed. 2000) Criminal Trial, § 525, pp. 749

- 750.) In this case, we need not rely on the rule of convenience and necessity because, as previously discussed, the prosecution presented substantial evidence that the gun was not registered. W e reject defenda nt’s remaining contentions , which are based on th e identical claim of insufficient evidence, for the reasons stated above

.8 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EDMON,J

. 

### *

We concur:

EPSTEIN, P. J.

MANELLA, J.

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.