Filed 11 / 22 / 22 P. v. Dumbrava 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.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.
SEBASTIAN BOGDAN DUMBRAVA , Defendant and Appellant. G0 60115 (Super. Ct. No. 20 HF 0081 )

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Scott A.
Steiner , Judge. Affirmed.

William G. Holzer , under appointment by th e Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. Swenson and Heather
M. Clark , Deputy Attorneys General, for Plaintiff and Respondent.
* * *2 Appellant Sebastian Bogdan Dumbrava, after being detained at a mental health treatment facility, receiv ed notice he was prohibited from owning, possessing, controlling, receiving, or purchasing any firearm for a period of five years , absent court authorization . Firearm components and ammunition were subsequently found in his
bedroom and he was convicted of two crimes: an attempt to possess a firearm and possession of ammunition

. He was sentence d to serve consecutive prison term s totaling three years and eight months

.

Dumbrava contends his judgment should be reversed because there was
insufficient evidence about his detention , as required by the possession statutes he was
convicted of vi olating, as well as insufficient evidence he attempted to posses s a firearm

. He also contends Penal Code section 654 ’s prohibition of multiple punishments for the

same act should be applied to stay his eight

- month sentence for possession of ammunition by a prohibited person

. W e affirm the judgment.

FACTS
In 2019 , law enforcement officers interviewed Dumbrava as a result of
th reatening comments he posted on social media and thereafter transported Dumbrava to
UCI Medical Center (UCI)

. A fter he entered the hospital , a n employee came out and requested the officers write an application for Dumbrava to be evaluated for a 72

- hour
hold as authorized by Welfare and Institutions Code section 5150. 1

Dumbrava was placed on an involuntary hold, and then transferred to Canyon Ridge Hospital (Canyon Ridge) , and involuntarily admitted to the hospital on the basis of being a danger to others

. He was assessed and stayed at th is facility until he was
released two days later , when he was given a written advisement explaining h e could not legally possess a firearm absent court authorization

.

1 All further undesignated statutory references are to the Welfare and Institutions Code.3 In 2020 , after being alerted to Dumbrava’s Twitter account which contained threats against the University of Irvine and campus police, l aw enforcement officers

execut ed a search warrant on Dumbrava ’ s bedroom

. I nside a storage container, they
found a locked duffel bag containing firearm components , a jig kit, tools necessary to build a civilian version of an assault rifle , 37 magazines for holding ammun i tion , and 1,1 99 rounds of ammunition

. The search also yielded two nonfunctioning firearm receivers, a shipping label for one of them , and a box contain ing instruction s on how to
assemble a rifle.

Dumbrava was in itially charged in an information on 25 felony count s: receipt of a large capacity magazine ( Pen. Code, § 32310 , subd. (a) [count s 1 through
22 ]); attempting to possess a firearm as a prohibited person ( Pen. Code, § 8103, subd. (f)(1) & (i) [count 2 3 ]); and prohibited ownership of ammunition ( Pen. Code, § 30305, subd. (a)(1) [count 24])

. The trial court granted the defense’s motion to dismiss counts 1 through 22

. A court trial was conducted on counts 23 and 24

. T he prosecution presented witnesses from Canyon Ridge , as well as a firearms exp ert who had executed
the search warrant . The expert testified that Dumbrava had obtained all the necessary parts to build an assault rifle and that Dumbrava could assemble them into a functioning
rifle in two to four hours

.

T he trial court convicted Dumb rava o n both counts, and sentenced him to

serve consecutive prison terms of three years on c ount 23 and eight months on c ount 24

.

DISCUSSION Dumbrava raises two claims on appeal. He contends there was insufficient
evidence to convict him of either offense. Alternative ly , he argues his eight

- month

sentence on c ount 24 for prohibited possession of ammunition should be stayed under
Penal Code section 654

.4

I. Sufficiency of the Evidence
Standard of Review

“ In reviewing a sufficiency of evidence claim, the reviewing court ’ s role is
a limited one ,” where w e “‘“ must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation

. ].) ”’” ( People
v. Smith (2005) 37 Cal.4th 733, 738

- 739.) We “‘ review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence

— that is, 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. Story (2009) 45 Cal.4th 1282, 1296 ; see Jackson v. Virginia (1979) 443 U.S. 307, 319 [“the relevant question 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”] .)

Relevant Law
S ection 8103 provides in relevant part that “ [a] person who has been (i) taken into custody as provided in Section 5150 because that person is a danger to himself

. . . or to others, (ii) assessed within the meaning of Section 5151, and (iii) admitted to a designated facility within the meaning of Secti ons 5151 and 5152 because that person is a danger to himself

. . . or others, shall not own, possess, control, receive, or purchase, or attempt to own, possess, control, receive, or purchase, any firearm for a period of five years after the person is relea sed from the facility. ” ( Id. , subd. (f)(1)(A) , italics added .)
Section 5150 provides in relevant part as follows: “ When a person, as a result of a mental health disorder, is a danger to others, or to himself

. . . , a [person authorized by the sectio n] may, upon probable cause, take, or cause to be taken, the person into custody for a period of up to 72 hours for assessment, evaluation, and crisis intervention, or placement for evaluation and treatment in a facility designated by the5

county for evalua tion and treatment and approved by the State Department of Health
Care Services. At a minimum, assessment, as defined in Section 5150.4 , and evaluation, as defined in subdivision (a) of Section 5008, shall be conducted and provided on an ongoing basis

. ” ( Id. , subd. (a) , italics added.)

Section 5150.4 states in its entirety that : “‘ Assessment ’ for the purposes of
this article [ , i.e., containing sections 5150 through 5155] , means the determination of whether a person shall be evaluated and treated pursuant to Section 5150. ” Section 5151 states in relevant part as follows: “ If the facility designated by the county for evaluation and treatment admits the person, it may detain the person for evaluation and treatment for a period not to excee d 72 hours

. . . . [¶] Prior to admitting a person to the facility for treatment and evaluation pursuant to Section 5150, the professional person in charge of the facility or a designee shall assess the individual to determine the appropriateness of
the i nvoluntary detention.” ( Id. , subds. (a) & (b).) Penal Code section 30305 provides in relevant part that “[n] o person prohibited from owning or possessing a firearm under

. . . 8103 of the Welfare and Institutions Code, shall own, possess, or have under custody or control, any ammunition
or reloaded ammunition. ” ( Pen. Code, § 30305 , subd. (a)(1) .)

Application The elements of section 8103 are supported by s ubstantial evidence . T he
evidence at trial showed Dumbrava directly acted with the intent to own , possess, control, receive, or purchase a firearm within five years of being released from the second
medical center. He was “ taken into custody as provided in Section 5150 because ” he was
determined to be a danger to others ; at a minimum, h e was “ assessed within the meaning
of Section 5151 ” at Canyon Ridge ; a nd he was “ admitted to a designated facility within the meaning of Sections 5151 and 5152 because ” he was determined to be a danger to
others . (§ 8103, subd. (f)(1)(A) (i)

- (iii).) Substantial evidence also supports a finding that6

Dumbrava attempted to possess a firearm and possess ed ammunition as proscribed by the statutes he was convicted of violating : section 8103 and Penal Code section 30305

.

Dumbrava asserts two theories to argue the tri al evidence was insufficient
for his convictions. First, he argues that for both convictions there was insufficient
evidence he was “ assessed within the meaning of Section 5151 ,” as required by section 8103, subdivision (f)(1)(A) (ii) . The argument rests on the premise that the first facility
where Dumbrava was detained

— the hospital

— was the only location where a n assessment could have been conducted

. Th is premise is contradicted by the statutory scheme of the Lanterman

- Petris

- Short Act (§ 5000 et seq.) (the Act) , the legislation that
contains section 5150 and governs its framework.

The purpose of an assessment “within the meaning of section 5151” is “ to determine the appropriateness of [an] involuntary detention ” authorized by the Ac t. (§ 5151, subdivision (b).) The legislation provides that assessments for a detention be

“ conducted and provided on an ongoing basis ,” as circumstances require. ( § 5151 , subd. (a)). The Act contemplates that a n individual may be treated at more than one facility
within the authorized 72

- hour detention , which is what happened in this case. (S ee § 5150, subd. (i)(1) [required information for detained person includes the proposition that the person “may request to be evaluated or treated at a facility o f [ his or her ] choice”] ; see § 5008, subd. (n) [defining meaning of “ ‘ facility designated by the county
for evaluation and treatment ’ ” ] .)

Dumbrava’s detention at Canyon Ridge was subject to section 5151’s assessment requirement

. (§ 5151 , subd. (b) [“Prior to admitting a person to the facility for treatment and evaluation pursuant to Section 5150, the professional person in charge of the facility or a designee shall assess the individual to determine the appropriateness of the involuntary detention”]

. ) T he trial evidence included direct testimony by a nurse who worked at the facility , who testified that Dumbrava was assessed at the beginning of his
detention there. Accordingly, a lthough no direct evidence was presented at trial on7

whether Dumbrava w as assessed at UCI , his assessment at this first facility is of no
moment because there was substantial evidence that an assessment required by section 8103, subdivision (f)(1)(A) (ii) , occurred at the second facility , namely Canyon Ridge

.

Second , Dumbrav a contends his conviction for violating section 8103 should be reversed because there was insufficient evidence he attempted to possess a firearm. Generally , “ [a] n attempt to commit a crime consists of two elements: a specific intent to commit the crime, and a direct but ineffectual act done toward its commission

. ” ( Pen. Code, § 21a ; see People v. Moses (2020) 10 Cal.5th 893, 906. ) Dumbrava’s claim
of insufficient evidence focuses on the second element

— whether there was a direct but ineffectual act that went beyond mere preparation. Here, the argument is made that
Du m brava’s conviction should be reversed because the evidence shows only acts of preparation. We disagree.

Our Supreme Court has explained: “‘[b]etween preparation for the attempt and the attempt itself, there is a wide difference. The preparation consists in devising or arranging the means or measures necessary for the commission of the offense; the attempt is the direct movement toward the commission after the preparations are made.’ [Citation.] ‘“[I]t is sufficient if it is the first or some subsequent act directed towards that end after the preparations are mad e.’” [Citation.] ( People v. Superior Court ( Decker ) (2007) 41 Cal.4th 1, 8.)

“Although a definitive test has proved elusive, we have long recognized that ‘[w]henever the design of a person to commit crime is clearly shown, slight acts in furtherance of the design will constitute an attempt.’ [Citations.]” ( People v. Superior
Court ( Decker

) , supra , 41 Cal.4th at p. 8.) This is known as the “slight

- acts rule.” ( Id. at
p. 10.) In Decker , our Supreme Court stated : “The purpose of requiri ng an overt act is that until such act occurs, one is uncertain whether the intended design will be carried out. When, by reason of the defendant’s conduct, the situation is ‘without any8

equivocality,’ and it appears the design will be carried out if not interrupted, the defendant’s conduct satisfies the test for an overt act. [Citations.]” ( Id . at pp. 13

- 14.)

Here, Dumbrava’s intent was clear

— to possess a functioning assault

- style rifle and he had taken several steps in furtherance of his plan. His ac tions went beyond mere preparation as he had obtained all of the firearm’s components, procured information on how to assemble the firearm, gathered the tools he needed for the assembly, acquired 37 magazines to load ammunition into the firearm, and amasse d 1,199 rounds of ammunition. Considering all of these actions together, we have no problem concluding there was sufficient evidence Du m brava’s actions we nt beyond mere preparation and are sufficient to constitute an attempt.

I n People v. Nguyen (2013) 212 Cal.App.4th 1311 , we concluded the
defendant , who had acquired the parts for an assault firearm, was properly convicted of the attempted possession of a n assault weapon because he had gone beyond mere preparation by bending the flat receiver so the firearm could be assembled. ( Id. at
p. 1323.) Here, we find substantial evidence Dumbrava went beyond mere preparation by gathering the tools he needed to as semble the firearm and by obtaining substantial numbers of magazine and rounds of ammunition ; this conduct satisfies the overt act requirement. It is for this reason we find Nguyen is consistent with our analy sis here.

Dumbrava contends the evidence was insufficient because he had not
drilled the receiver and the firearm remained unassembled. He asserts that even if he had started to put the rifle together, he had two to four hours of work to complete before he had a functioning rifle. This argument mis apprehends the difference between the completed crime of possession of a firearm and an attempt to possess a firearm. Within two to four hours of starting the assembly, Dumbrava would have had an operable firearm and be guilty of possession of a firearm, not attempted possession of a firearm.

Given the record, Dumbrava’s position on the sufficiency of the trial
evidence ignores the plain statutory language of section 8103 , which shows the9

Legislature elected to specify that either an attempted possessio n or successful possession
of a firearm would equally violate the law

. We decline to nullify the statutory phrase “attempt to” explicitly included in the conduct proscribed by section 8103.

We find poignant the Supreme Court’s discussion of the law of attempts: “‘“One of the purposes of the criminal law is to protect society from those who intend to injure it. When it is established that the defendant intended to commit a specific crime and that in carrying out this intention he committed an act that caused harm or sufficient danger of harm, it is immaterial that for some collateral reason he could not complete the intended crime.” [Citation.] Accordingly, the requisite overt act “need not be the last proximate or ultimate step towards commissio n of the substantive crime

. . . . [¶] Applying criminal culpability to acts directly moving toward commission of crime

. . . is an obvious safeguard to society because it makes it unnecessary for police to wait before intervening until the actor has done the substantive evil sought to be prevented. It allows such criminal conduct to be stopped or intercepted when it becomes clear what the actor’s intention is and when the acts done show that the perpetrator is actually putting his plan into action.” [Ci tations.]’” ( People v. Moses , supra , 10 Cal.5th at p. 899.)

Here, Dumbrava’s intent was clear and he had started putting his plan into action by acquiring the parts he needed to have a functioning assault

- style rifle, obtaining the tools to complete th e assembly, and gathering the magazines and ammunition to use once the assembly was complete. It was unnecessary for police to wait until he had completed the assembly before intervening.

II. Sentencing

Dumbrava conten ds we should apply Penal Cod e s ection 654 to stay execution of his consecutive eight

- month sentence for possession o f ammunitio n o n Count 24

. The statute provides in relevant part that : “ An act or omission that is punishable in different ways by different provisions of law may be p unished under either10

of such provisions, but in no case shall the act or omission be punished under more than one provision

. ” (

Id. , subd

. (a) .)
Given that Dumbrava’s conduct underlying c ounts 23 and 24 did not occur through a single physical act , we consider whether Dumbrava’s “ course of criminal
conduct is divisible ”

— whether it reflected a single intent and objective for the purpose of
Penal Code section 654 analysis

. ( People v. Corpening (2016) 2 Cal.5th 307, 311 .)

Sub stantial evidence supports the trial court ’ s implied findings that Dumbrava had maintained separate intents and objectives when he committed the acts underlying his convictions for counts 23 and 24. ( People v. Jones (2002)
103 Cal.App.4th 1139, 1143 [“ Whe ther [Penal Code] section 654 applies in a given case is a question of fact for the trial court, which is vested with broad latitude in making its
determination ”] .) Dumbrava attempted to possess a firearm and did possess over 1, 1 00 rounds of ammunition, which were not loaded into a firearm. Presuming all facts the court could reasonably have deduced, the record supports a finding that Dumbrava may have been planning multiple attacks on multiple targets. Dumbrava relies on case s th at hold where a firearm is found loaded with ammunition, the possession of both cannot justify the imposition of two punishments. (See, e.g., People v. Lopez (2004)
119 Cal.App.4th 132, 137

- 138 .) T hose cases are inapplicable here because the
ammunition D umbrava possessed was not loaded into a firearm.11 DISPOSITION The judgment is affirmed.

MARKS, J.*

WE CONCUR:

O’LEARY , P. J.

DELANEY , J. *Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.