Filed 6/23/22 P. v. Serrato CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 FIVE

THE PEOPLE

,

Plaintiff and Respondent

,

v.

A LEJANDRO SERRATO

,

Defendant and Appellant. B317235

(Kern County

Super. Ct. No.

BF174872 )

APPEAL from a judgment of the Superior Court of Kern

County, Kenneth C. Twisselman II, Judge. Affirmed in part and

reversed in part.

Gordon S. Brownell , under appointment by the Court of

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief

Assistant Attorney General, Michael P. Farre l l, Senior Assistant

Attorney General, Louis M. Vasquez, Super vising Deputy

Attorney General, Lewis A. Martinez and Jennifer Oleska,

Deputy Attorneys General, for Plaintiff and Respondent.2 Defendant Alejandro Serrato (defendant) had several

pounds of methamphetamine at his feet when a California

Highway Patrol (CHP) officer stopped the vehicle in which he was

riding as a passenger. Defendant and the driver were arrested

,

and a pistol was later found beneath the driver’s seat. A jury

found defendant guilty of two drug charges

— with associated

firearm enhancements fou nd true , of possession of

methamphetamine while armed with a firearm, and of receiving

stolen property ( the pistol ) . We are asked to decide whether

substantial evidence supports (1) the firearm

- related offense and

enhancements and (2) defendant’s conviction for receiving stolen

property. The first issue principally turns on whether defendant

knew the pistol was in the vehicle; the second turns on whether

he knew the pistol was stolen.

I. BACKG ROUND

A. The Offense Conduct, as Established by the Evidence

at Trial

In December 2018, CHP officer Brian Paxson was on patrol

with a narcotics

- trained dog on northbound State Route 99 in

Kern County

. He stopped a four

- door pickup truck with a non

functioning brake light and a license plate obscured by a

discolored plastic cover. Angel Alfaro (Alfaro) was driving and

defendant was in the front passenger seat.

Officer Paxson approached the vehicle on the passenger

side. He asked Alfaro to exit the truck because it was “really

loud” and he “felt like [he] was yelling.” Alfaro did not have a

driver’s license and was “visibly shaking” when he gave Officer

Paxson another form of identification. Alfaro said he and

defendant were driving to “the store,” but he could not say which3

o ne

. Defendant

, who also lacked a driver’s license, told Officer

Paxson he and Alfaro were driving to a friend’s house, but he

could not provide the address. The truck was registered to

someone other than Alfaro, albeit someone who shared his last

name.

Officer Paxson planned to impound the truck and called for

backup because he would not be able to drive defendant and

Alfaro off the highway with a dog kennel in his patrol car. When

backup officers arrived, defendant and Alfaro were directed to

st and away from the truck as Officer Paxson had his dog sniff the

exterior. Defendant and Alfaro “looked deflated” and spoke to

one another in Spanish. The dog alerted to the front passenger

door. Officer Paxson then allowed the dog inside the truck and i t

alerted to a pillowcase or sheet on the floorboard in front of the

passenger seat where defendant’s feet had been. Officer Paxson

found five plastic containers inside the pillowcase or sheet, all of

which were similar in size and weight. Officer Paxson suspected

the containers held a “large quantity” of methamphetamine and

arrested defendant and Alfaro.

Matthew Iturriria was one of two CHP officers who

responded to Officer Paxson’s call for assistance. He was tasked

with filling out paperwork necessar y to impound the truck

.

Officer Iturriria checked the center console, back seat, back

floorboards, and glove compartment for valuables. He had a

“quick glance” at the front floorboards looking from the direction

of the back of the pickup’s passenger cab

, and nothing caught his

eye

.

About an hour later, however, t ow truck driver Johnny

Rincon (Rincon) who towed the truck away spotted a gun under

the driver’s seat when he was reviewing vehicle information on4

the driver’s door at his company’s tow yard. Rincon informed his

employer, Ray Tavakoli (Tavakoli), and Tavakoli had a

dispatcher report the gun to CHP.

When Officer Iturriria arrived at the tow yard to retrieve

the gun, Tavakoli saw that it was “right where the pedals are.”

Officer Itu rriria “peeked under the seat with [his] flashlight” and

saw the gun “far enough back to where it wasn’t visible in plain

view. ” As he put it (during later trial testimony), “ You had to

actually look, and it was tucked back a little bit.” The gun’s

handle or grip was facing the passenger side. There were nine

bullets in the gun: one in the chamber and eight more in the

magazine.

Officer Iturriria determined the gun was in go od working

order based on a visual inspection and by “ dry

- firing it and

ejecting a round out through the chamber

. ” The gun’s owner,

Brian Murphy (Murphy)

, testified the gun

— a “Springfield XD,

subcompact” handgun with a 3.8 inch barrel that he identified b y

its serial number

— had been stolen from his truck in Bakersfield

some five months earlier, in July 2018. Murphy reported the

theft to law enforcement and he testified he did not know

defendant or Alfaro.

The Kern County Regional Crime Laboratory analyzed

three of the five containers found in the truck and confirmed each

held approximately one pound of methamphetamine. Kern

County Sheriff’s Office D eputy Raymond Seibert

, who was

assigned to a local drug task force in December 2018, test ified the

seized drugs were in “larger chunks” that did not appear to have

been handled much, consistent with “what [he has] seen in

investigations where [he] knew [drugs came] directly from

Mexico

. ” Deputy Seibert testified about the value of the seized5

drugs in specific quantities, ranging from a common single dose

of about 0.1 grams ($20) to the wholesale price per pound

($1

, 300). Extrapolating from the single dose price, Deputy

Seibert estimated the total value of the drugs seized from the

truck to be about $450,000.

Deputy Seibert also testified regarding factors relevant to

determining whether a person possesses drugs for personal use or

for sale. These include the quantity and the presence of drug

paraphernalia

, scales, and baggies. The significance of these

factors varies depending on the circumstances: While a “lower

level dealer” may possess scales and baggies, a “higher

- level

dealer

. . . may not have some of that stuff, especially if the

narcotics [are] already pre

- weighed out.” Deputy Seibert also

noted that he “encounter[s] [guns] very often in sales

investigations” because dealers “[do not] want to be robbed.”

Deputy Seibert testified that “a pretty good amount,” but not a

majority, of guns seized in these circumstances are reported

stolen: “[A] lot of times we will encounter a firearm that’s

registered to someone else, not the person we found it with, but

we can’t get ahold of that person to confirm if it was actually

stol en or if they maybe somewhere down the line traded it for

narcotics. Because that’s fairly common as well, if the owner of

that firearm was a narcotics user, or they simply don’t know that

it’s even missing.”

The prosecution posed a detailed hypothetical based on the

facts of the case to Deputy Seibert, ultimately asking him

whether five plastic containers each containing about one pound

of methamphetamine in “large shards,” found in a vehicle

traveling northbound on State Route 99 with a gun under the

dr iver’s seat but no “drug paraphernalia or other indicia,” would6

be possessed for personal use or for sale. Deputy Seibert opined

the drugs in this hypothetical would be possessed for sale based

on the total quantity of methamphetamine, the fact that it wa s

divided into equally

- weighted parcels, the fact that it was

heading “away from the border

. . . where the money is at,” and

the presence of the gun indicating the vehicle’s occupants saw

themselves as “a target to be robbed.”

B. Verdict and Sentencing

The Kern County District Attorney charged defendant and

Alfaro in an information with four crimes : (1) transportation of

methamphetamine for sale (Health & Saf. Code, § 11379, subd.

(a)); (2) possession of methamphetamine for sale (Health & Saf.

Code, § 11378); (3) possession of methamphetamine while armed

with a loaded firearm (Health and Saf. Code, § 11370.1, subd.

(a)); and (4) misdemeanor receiving stolen property (Pen.

Code, § 496, subd. (a)). As to counts one and two, it was further

alleged defendant and Alfaro

, among other things, were

personally armed with a firearm during the commission of the

offenses (Pen. Code, § 12022, subd. (c))

. Following a joint trial, the jury found defendant guilty on

all counts and found the special allegations to be true. 1 On the

methamphetamine transportation conviction, t he trial court

imposed a split sentence of four years in local custody followed by

four years of mandatory supervision

. This was calculated as two

years for violation of Health and Safety Code section 11379,

1 The jury also found Alfaro guilty on all counts and found

the special allegations to be true. Only defendant’s appeal is

before us for decision.7

subdivision (a), plus three years for the Penal Code section 12022,

subdivision (c) firearm enhancement

, plus three years for a drug

quantity sentencing enhancement (Health & Saf.

Code, § 11370.4, subd

. (b)(1) )

. The trial court stayed sentences on

the remaining convictions pursuant to Penal Code section 654.

II. DISCUSSION

Defendant challenges the sufficiency of the evidence

supporting the jury’s true findings on the firearm enhancements

attached to counts one and two (transportation and possession of

methamphetamine for sale) and the guilty verdict on count three

( possession of methamphetamine while armed with a loaded

firearm)

. He specifically argues there is no substantial evidence

satisfying a n ecessary element of the conviction and

enhancements, namely, that he knew there was a gun in the

truck available for his use

. We reject the argument because the

jury could reasonably find defendant would not have been willing

to transport several pounds of methamphetamine without a gun

for protection

. But we do agree with defendant that there is no

proper evidentiary basis for the further inference that he knew

the gun was stolen

, which is a necessary element of his receiving

st olen property conviction

. It is true that there need be only

slight evidence to support an inference of guilty knowledge where

a defendant is found to be in possession of recently stolen

property, but there is no evidence defendant was involved in

procuri ng the gun or had any information as to its provenance

.8 A. Substantial Evidence Supports the Jury’s Finding

that Defendant Knew the Gun Was Available for His

Use

T o prove defendant’s violation of Health and Safety Code

section 11370.1 (count three) and the section 12022, subdivision

(c) firearm enhancement alleged in connection with counts one

and two

, the prosecution was required to satisfy similar

elements

.

Health and Safety Code section 11370.1 provides

, in part,

that “ every person who unlawfully possesses any amount of

. . . a

substance containing methamphetamine

. . . while armed with a

loaded, operable firearm is guilty of a felony

. . . . ” (Health & Saf.

Code, § 1 1370.1, subd. (a).) The statute defines the phrase

“armed with” to mean “ having available for immediate offensive

or defensive use. ” (Health & Saf. Code, § 11370.1, subd. (a).)

Courts have construed this definition to require that a defendant

know the gun is available for use. ( People v. Mena (2005) 133

Cal.App.4th 702, 706; People v. Singh (2004) 119 Cal.App.4th

905, 912

- 913 ( Singh ).)

Penal Code section 12022, subdivision (c) provides that “ a

person who is personally armed with a firearm in the commission

of a violation or attempted violation ” of, among other statutes,

Health and Safety Code sections 11378 (count one) and 11379

(count two), “ shall be punished by an additional and consecutive

term of imprisonment

. . . .” (Pen. Code, § 12022, subd. (c).)

“ Unlike Health and Safety Code section 11370.1, Penal Code

section 12022 does not contain its own definition of ‘ armed with. ’

However, it is well settled under Penal Code section 12022 that

‘ [a] defendant is armed if the defendant has the specified weapon

available for use, either offensively or defensively. ’” ( Singh

,9

supra

, 119 Cal.App.4th at 912, quoting People v. Bland (1995) 10

Cal.4th 991, 997 ( Bland ) .) As with section 12022, subdivision (c),

this formulation implies that the defendant’s conduct must be

knowing. ( Bland

, supra

, at 997.)

As defendant acknowledges, the fact that the gun was

found partially underneath Alfaro’s seat does not preclude a

finding that it was available for defendant’s use. ( People v.

Mendival (1992) 2 Cal.App.4th 562, 575 ) [holding that where a

gun is accessible to more than one person, the issue is “ whether

the position of the firearm rendered it available for offensive or

defensive use to only one or both of the co

- participants ”].)

D efendant does suggest in passing that “[t]here was no evidence

as to whether the position of the firearm under the driver’s seat

would have put it within [his] reach

, ” but t he jury viewed

p hotographs of the truck and Officer Iturriria testified the gun’s

handle was oriented toward the passenger side. This was

sufficient to support the finding that the gun was available to

defendant from the front passenger seat. (See id. at 568, 575 [the

d efendant driver of a vehicle was armed for purposes of Penal

Code section 12022, subdivision (c) enhancement where a gun

was found on the passenger

- side floorboard].)

Defendant’s primary contention is that there is no

substantial evidence he knew the gun was in the truck. The jury

was entitled, however, to infer that defendant knew about the

gun based on the amount of methamphetamine recovered and

Deputy Seibert’s testimony that drug dealers frequently arm

themselves to avoid robbery. Indeed, our Supreme Court has

emphasized that “[d]rug dealers are known to keep guns to

protect not only themselves, but also their drugs and drug

proceeds; ready access to a gun is often crucial to a drug dealer ’ s10

commercial success. ” ( Bland

, supra , 10 Cal.4th at 1005.) The

quantity of drugs recovered, defendant’s observed communication

with Alfaro after the police stop and while the dog sniff was

underway , Deputy Seibert’s testimony , and the position of the

gun when located are , together, substantial evidence tha t

defendant was aware the gun was available for his use while in

the truck. ( See i d. at 995 [where the prosecution proves a charge

of felony drug possession and a firearm is found in close

proximity to the drugs in a place “frequented” by a defendant

, the

jury may reasonably infer the defendant knew of the firearm’s

presence].)

B. There Is No Substantial Evidence Defendant Knew

the Gun Was Stolen

Penal Code section 496, subdivision (a) provides, in

pertinent part, that “[e]very person who buys or receive s any

property that has been stolen or that has been obtained in any

manner constituting theft or extortion, knowing the property to

be so stolen or obtained, ” is guilty of a misdemeanor if the value

of the property does not exceed $950 . (Pen. Code, § 496, subd.

(a).) “ Thus, to sustain a conviction for receiving stolen property,

the prosecution must prove (1) the property was stolen; (2) the

defendant knew the property was stolen; and, (3) the defendant

had possession of the stolen property. [Citation s .]” ( People v.

Land (1994) 30 Cal.App.4th 220, 223 ; see also CALCRIM No.

1750 .) Here, the fact that the gun was stolen is established by

the testimony of its owner, Murphy . Accordingly, defendant’s

arguments focus on whether he possessed the gun and wh ether

he knew it was stolen. We need address (apart from what we

have already said) only the latter contention.11 Because there was no evidence at trial that defendant

personally stole the gun from Murphy’s truck

, his knowledge of

its provenance had to be proved by circumstantial evidence.

( People v. Roland (1969) 270 Cal.App.2d 639, 647 [“ [K] nowledge

of the theft of property need not be proved by direct evidence;

circumstantial evidence is sufficient ”].) Citing Deputy Seibert’s

testimony that guns recove red in drug trafficking investigations

are often stolen, the Attorney General contends it can be inferred

“ that a person who is clearly experienced in the transportation of

illicit drugs, an activity which is associated with the carrying of

firearms, would know that the firearm being carried for

protection was stolen. ” But Deputy Seibert also testified a

majority of guns recovered in these circumstances are not

reported stolen and many are traded for narcotics by their

owners.

An other possible alternative basis for inferring that

defendant knew the gun was stolen is the temporal proximity

between the theft and his possession. “ Possession of recently

stolen property is so incriminating that to warrant conviction

there need only be, in addition to possession, slight corroboration

in the form of statements or conduct of the defendant tending to

show his guilt. ” ( People v. McFarland (1962) 58 Cal.2d 748, 754

( McFarland ).) Defendant contends the interval between the

gun’s theft in July 2018 and hi s arrest in December of that year

is too long for this inference to apply and, in any case, there is

nothing to corroborate it.

“ There is no question but that the phrase ‘ recently stolen ’ is

a key portion of [this] legal principl e

. . . . Catching a defe ndant

with the goods in possession shortly after a theft rationally

suggests a connection to and knowledge of the crime; while the12

passage of a long period between the theft and the defendant ’ s

possession of the stolen property weakens any inference of gui lty

knowledge. [Citation.]” ( People v. Anderson (1989) 210

Cal.App.3d 414, 421 (

Anderson ).) Although courts have been

reluctant “ to attempt demarcation of any bright line between

‘ recent ’ and ‘ stale ’ time periods ,” the inference has been held to

apply in cases involving time periods comparable to the five

months at issue here. ( Id. at 422 [“ we believe it to have been well

within reason for a jury to have determined that possession

within four and a half months

. . . of the theft should lead to an

inference of knowledge of the stolen nature of the property ”];

accord

, People v. Lopez (1954) 126 Cal.App.2d 274, 278 [passage

of nine months between theft and discovery “ weakened the

inference of defendant ’ s guilty knowledge ” because stolen

property “ cou ld have passed through several hands after the thief

had disposed of it

, ” but inference still applied] .)

Assuming the gun was “recently stolen” within the

meaning of McFarland

, none of the typical corroborating evidence

is present in this case. T he bench notes to CALCRIM No. 376

discuss potential indicia of knowledge of the status of recently

stolen property. 2 These include “ [f] alse, contradictory, or

inconsistent statements ”; “ [t] he attributes of possession, e.g., the

time, place, and manner of possession that tend to show guilt ”;

“ [t] he opportunity to commit the crime ”; “ [t] he defendant ’ s

conduct or statements tending to show guilt, or the failure to

explain posse ssion of the property under circumstances that

2 CALCRIM No. 376 was not given in this case. We refer to

the instruction merely as a helpful catalog of fac tors to aid our

analysis.13

indicate a ‘ consciousness of guilt ’”; “ [f] light after arrest ”;

“ [a] ssuming a false name and being unable to find the person

from whom the defendant claimed to have received the propert y”;

“ [s] ale of property u nder a false name and at an inadequate

price ”; “ [s] ale of property with identity marks removed

. . . or

removal of serial numbers ”; “ [m] odification of the property ”; and

“ [a] ttempting to throw away the property .”

In this case

, the gun was not discovered at the moment of

defendant’s arrest and he made no statement (false, inconsistent,

or otherwise) as to its provenance. (See

, e.g., People v. Champion

(1968) 265 Cal.App.2d 29, 32

- 33 [inference did not apply to a

defendant who “ fail [ e d] to volu nteer an explanation for his

possession ” of a stolen car because his arrest was unrelated to

theft and “[t] he circumstances obviously did not call for him to

explain his possession of the automobile ”].) T he attributes of

possession ( e.g., the time, place, and manner of possession ) will

support an inference of knowledge that property is stolen where

there is “ evidence of something unusual about the possession

—

something other than mere control of property which would be

asserted by a legal owner ” ( Anderson

, supra

, 210 Cal.App.3d at

424)

, but here, the mere fact that the possession occurred while

transporting methamphetamine is not enough; as already

discussed, Deputy Seibert testified guns recovered in these

circumstances often are not stolen.

None of the other examples of corroborating evidence listed

in the bench notes to CALCRIM No. 376 are arguably present

here. There was no evidence as to whether defendant had the

opportunity to steal Murphy’s gun because there was no evidence

of defendant ’s whereabouts in July 2018. There is no indication

that defendant fled before or after arrest or assumed a false14

name ; t o the contrary, he was out of custody during his trial

.

There was no evidence defendant attempt ed to sell, modify, or

discard the gun ; Murphy was able to identify the gun by its serial

number and did not testify that it had been altered in any way.

And a ssuming concealment is analogous to disposal for purposes

of the McFarland inference, there is no evidence that defendant

( as opposed to A lfaro) hid the gun beneath the driver’s seat.

Because the bare fact that defendant constructively

possessed a gun that had been stolen five months earlier is

insufficient to support the inference that defendant knew that

gun was stolen

, we shall reverse defendant’s conviction for

receivi ng stolen property. ( McFarland

, supra

, 58 Cal.2d at 756.)

DISPOSITION

Defendant’s conviction for receiving stolen property is

reversed. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, Acting P. J.

We concur:

MOOR , J.

KIM, J.