Filed 7/25/14 In re Robert O. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

In re ROBERT O., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT O.,

Defendant and Appellant.

F068124

(Super. Ct. No. JL004638)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Merced County. David W. 

Moranda, Judge.

Caitlin U. Christian, under appointment by the Court of Appeal, for Defendant and

Appellant.

 

* Before Gomes, Acting P.J., Kane, J. and Detjen, J.
2.

Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney 

General, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for 

Plaintiff and Respondent.

-ooOooFollowing a contested jurisdiction hearing, appellant Robert O. was found to have 

possessed a concealable firearm for the benefit of or in association with a criminal street 

gang (Pen. Code,1 §§ 186.22, subd. (b)(1)(A), 29610; count 1); possessed live 

ammunition (§ 29650; count 2); knowingly received, concealed, or withheld stolen 

property (§ 496, subd. (a); count 3); and actively participated in a criminal street gang 

(§ 186.22, subd. (a); count 4). He was adjudged a ward of the court pursuant to Welfare 

and Institutions Code section 602, and was placed on probation with various terms and 

conditions and ordered to pay a restitution fine. He now contends the evidence was 

insufficient to sustain the true finding on count 3. We reverse that finding, but otherwise 

affirm.

FACTS

I

PROSECUTION EVIDENCE

On July 6, 2013, members of the Gang Violence Suppression Unit served a search 

warrant at Roberto Garcia’s home in Merced. As they approached, Officer Alvarez 

noticed three subjects — Mario Jimenez, David V., and Robert — standing in front of the 

residence. All three immediately ran toward the house. Officers ordered Jimenez and 

David to the ground and detained them. At the same time, Alvarez saw Robert in the 

open, detached garage. Robert was standing next to a weight bench, looking startled, 

with his hands up. He was wearing a red cloth belt. As a gang officer, Alvarez knew 

 

1 All statutory references are to the Penal Code unless otherwise stated.
3.

Norteños often wore red, and specifically that type of belt. He noted Robert also had a 

Norteño-related tattoo.

2

A loaded .40-caliber Glock handgun was found on the floor next to the weight 

bench, within a foot of where Robert had been standing.

3 Robert denied tossing the 

firearm onto the ground. When Alvarez asked if his DNA or fingerprints would be on the 

firearm, however, Robert kind of laughed, smiled, and looked away from Alvarez. A 

black pistol shotgun was also found in the garage in a rifle case. In addition, a gun fell 

out of David’s waistband when he was searched. Methamphetamine was found in the 

back room of the residence, and there were 20 to 30 marijuana plants growing in the 

backyard. 

Alvarez transported Robert to the police station. Robert stated he associated with 

the “Rebels Before Locs” (RBL), a Norteño gang in Merced. When booked into juvenile 

hall, Robert told staff he associated with Norteños and needed to be housed with them. 

Alvarez explained that the principal types of crimes committed by Norteños in 

general and RBL in particular in Merced revolve around violence — shootings, 

stabbings, assaults, firearms, possessions, drive-bys, and things of that nature. He opined 

that Robert was a Norteño gang member. This opinion was based on Robert’s statements

that he “hung out” with RBL, even though he said he was not a gang member or gang 

affiliated; the fact he was housed with active northerners; his tattoo; the fact he had 

previously been contacted with other gang members; his clothing; and the fact he was 

with two other gang members — Garcia and David — committing gang crimes. 

 

2

In addition to describing the events in which he personally participated, Alvarez 

testified as a gang expert. We summarize only those portions of his testimony that are 

pertinent to the issue raised on appeal.

3 This gun was stolen from David Williams’s vehicle about two years earlier. 

Williams did not recognize Robert and had no idea who took the weapon. 
4.

In response to a hypothetical question that tracked the evidence in this case, 

Alvarez opined that a minor located a foot from the firearm found by the weight bench 

would be in possession of that firearm for the benefit of a criminal street gang, and would 

be committing the crime in association with other gang members. The crime would 

benefit the Norteños and also Garcia as a gang member, because older gang members 

often have younger gang members hold firearms since they know a younger gang 

member will not be punished as severely as an older gang member would be. The crime

would also benefit the younger gang member by showing his loyalty and commitment to 

the gang. In addition, assuming the individuals present were all gang members, it was 

Alvarez’s opinion all would have access to all of the firearms. It is common among gang 

members that when someone has a firearm, the other gang members know and have 

access to the firearm for offensive or defensive purposes. 

II

DEFENSE EVIDENCE

Garcia knew Robert as a family friend. Robert went to Garcia’s residence every 

week or two to mow the yard, which was why he was at the house when everything 

happened. Robert had been at the house for no more than 30 minutes when the officers 

arrived. During that time, he mowed the lawn. Garcia never saw him with a gun. When 

the officers arrived, Garcia had just seen Robert put the lawnmower back in the garage.4

David and Jimenez were also at the house. As far as Garcia knew, David was not 

a gang member, although Jimenez was a Norteño. About a month earlier, someone had 

shot at them in front of Garcia’s cousin’s house, which was across the street from 

Garcia’s residence. Jimenez had been shot in the hands. After the shooting, Garcia saw 

Jimenez in possession of the gun later found by the weight bench. About two hours 

before the officers came to Garcia’s house, Garcia’s father called and said a family 

 

4 Photographs taken during the search showed the lawnmower in the yard. 
5.

member had just called and said to tell Garcia to be careful, because the people who did 

the earlier shooting were going to come and shoot him soon. When Jimenez heard this,

he grew nervous, and went home and got the gun and came back. Garcia did not know 

David also had a gun until after the officers came. The shotgun found in the garage 

belonged to Garcia’s father, who had brought it over just in case something happened. 

Garcia admitted being a Norteño, but explained he did not associate with the gang 

at all anymore. He did not believe Robert was a gang member. Robert was only at 

Garcia’s house to cut the lawn, not to associate with Jimenez and David. Robert was not 

present at the earlier shooting. 

DISCUSSION

The essential elements of the crime proscribed by subdivision (a) of section 496, 

as alleged in count 3 of the wardship petition, are: “(1) The property must be stolen 

property, (2) the defendant must receive, conceal, or withhold it or aid in receiving, 

concealing or withholding it from its owner, (3) and defendant must have knowledge that 

the property is stolen property. [Citations.]” (People v. Schroeder (1968) 264 

Cal.App.2d 217, 225; accord, People v. Martin (1973) 9 Cal.3d 687, 695.) Robert says 

the evidence failed to establish he knew the item he was found to have possessed — the 

.40-caliber Glock handgun found by the weight bench — was stolen. The People 

concede reversal is required. We agree.

“Our review of [Robert’s] substantial evidence claim is governed by the same 

standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of 

the evidence, we must determine “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.” [Citation.]’ [Citation.] ‘“[O]ur role 

on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must 

presume in support of the judgment the existence of every fact that the trier of fact could 

reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances 
6.

reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 

1020, 1026.)

Guilty knowledge may be proven by circumstantial evidence, although “when 

challenged on appeal those circumstances must be shown to constitute substantial 

evidence.” (People v. Kunkin (1973) 9 Cal.3d 245, 254.) Unexplained possession of 

stolen property, standing alone, will not support a conviction for receiving stolen 

property. (People v. Jackson (1970) 14 Cal.App.3d 57, 63.) Generally, however, 

“[p]ossession 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. [Citations.]” (People v. 

McFarland (1962) 58 Cal.2d 748, 754, italics added.) Thus, “‘[p]ossession of stolen 

property, accompanied by an unsatisfactory explanation of the possession or by 

suspicious circumstances, will justify an inference that the property was received with 

knowledge it had been stolen. [Citations.]’ [Citation.]” (People v. Schroeder, supra, 

264 Cal.App.2d at p. 225; accord, People v. McFarland, supra, at pp. 754-755.)

“An inference of guilt, otherwise reasonable, may be weakened beyond the point 

of reasonableness if it appears that the period between theft and discovered possession 

was inordinately long under the circumstances.” (Williams v. Superior Court (1969) 71 

Cal.2d 1144, 1151, fn. 6.) In the present case, the gun was not recently stolen, 

“what[ever] time intervals may be embraced within the term ‘recent.’” (People v. 

Anderson (1989) 210 Cal.App.3d 414, 421.) The gun’s owner did not recognize Robert

and had no idea who stole the weapon some two years before it turned up in Robert’s 

possession. There was no evidence Robert had possessed it for any length of time or how 

he came to possess it, although it reasonably can be inferred from Alvarez’s testimony 

that he was holding it for an older gang member. Significantly, neither Robert’s conduct 
7.

(kind of laughing, smiling, and looking away from Alvarez when Alvarez asked 

questions directed at possession) nor the circumstances surrounding his possession of the 

gun suggest guilt of anything other than the unlawful possession of a firearm itself.5

(Contrast, e.g., People v. Martin, supra, 9 Cal.3d at pp. 695-696 [knowledge business 

machine stolen established by machine’s presence in the defendant’s car, unusual 

circumstances surrounding machine’s transfer, and presence of number of other similar 

machines of which the defendant was aware]; In re Richard T. (1978) 79 Cal.App.3d 382, 

388-389 [knowledge sufficiently shown where minor found in possession of gun soon 

after it was stolen, minor gave different stories concerning how he obtained possession, 

and minor admitted he suspected gun possibly was stolen]; People v. Taylor (1969) 2 

Cal.App.3d 979, 983-984 [knowledge gun was stolen reasonably inferable from the 

defendant’s flight, discard of weapon upon seeing police officer, wearing of outer 

clothing that could easily be removed so the defendant could change his appearance, and 

the defendant’s possession of other, separately stolen, property]; People v. Lopez (1954) 

126 Cal.App.2d 274, 277-278 [although nine months elapsed between time adding 

machine was stolen and time it was found in the defendant’s possession, evidence was 

sufficient to show guilty knowledge where there was testimony the defendant would buy 

or receive stolen property when he had opportunity, and the defendant gave conflicting 

and unsatisfactory accounts of his acquisition of adding machine].)

Viewed in the light most favorable to the prosecution, the evidence here 

establishes Robert knew his possession of the gun was unlawful, but produces nothing 

 

5

In her argument, the prosecutor did not point to any evidence suggesting Robert

knew the gun was stolen. She merely told the court: “The firearm, you heard testimony, 

it was also stolen.” In making its findings, the court stated: “And I also find that Count 

Three is true. He was in possession of stolen property, and I think because it is a firearm 

and he was in possession of it, and the knowledge that it was stolen, I believe that’s been 

found also.” 
8.

more than speculative inferences concerning his knowledge the gun was stolen. 

“‘[S]peculation is not evidence, less still substantial evidence’” (People v. Waidla (2000) 

22 Cal.4th 690, 735), and evidence that only raises a strong suspicion of guilt is not 

sufficient to support a conviction (People v. Davis (2013) 57 Cal.4th 353, 360; People v. 

Redmond (1969) 71 Cal.2d 745, 755). Accordingly, the juvenile court’s true finding on 

count 3 cannot stand, and the double jeopardy clause of the Fifth Amendment to the 

United States Constitution bars readjudication of that allegation. (In re Miguel L. (1982) 

32 Cal.3d 100, 110-111; see In re James M. (1973) 9 Cal.3d 517, 520.)

DISPOSITION

The true finding as to count 3 (violation of Pen. Code, § 496, subd. (a)) is reversed 

for insufficient evidence. Further proceedings on that allegation are barred. In all other 

respects, the judgment is affirmed.