Filed 12/23/14 P. v. DeRosas CA4/3 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JESUS DEROSAS, 

 Defendant and Appellant. 

 G049592 

 (Super. Ct. No. 11CF3037) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, Carla M. 

Singer, Judge. Affirmed. 

 Richard Schwartzberg, under appointment by the Court of Appeal, for 

Defendant and Appellant. 

 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney 

General, Robin Urbanski and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff 

and Respondent. 

* * * 
2

 Defendant Jesus DeRosas and his codefendant Oscar DeRosas were jointly 

charged with attempted murder (Pen. Code, §§ 664, subd. (a), 187, subd. (a)),

1

 assault 

with a firearm (§ 245, subd. (a)(2)), and street terrorism (§ 186.22, subd. (a)). Defendant 

was separately charged with possession of a firearm by a felon (former § 12021, subd. 

(a)(1)),

2

 while Oscar was separately charged with possession of a firearm by a 

probationer. 

 The jury convicted defendant of assault with a firearm, possession of a 

firearm by a felon, and street terrorism.3

 The jury found true the gang enhancement as to 

the assault with a firearm and possession of a firearm offenses. (§ 186.22, subd. (b).) 

Defendant admitted suffering a prior strike conviction and a prior serious felony 

conviction. 

 The court sentenced defendant to a prison term of 18 years, comprised of 

eight years for assault with a deadly weapon (double the upper term), five years for the 

associated gang enhancement, and five years for the prior serious felony conviction. The 

court stayed execution of sentence for possession of a firearm and street terrorism. 

 On appeal defendant contends insufficient evidence supports his conviction 

for firearm possession by a felon. We disagree with that assessment and affirm the 

judgment. 

 

1

 All statutory references are to the Penal Code. 

 For convenience and to avoid confusion, we refer to Jesus DeRosas as 

“defendant,” and we generally refer to codefendant Oscar DeRosas, witness Gary 

Montoya, witness Irma de la Cruz, and victim and witness David Montoya by their first 

names. We mean no disrespect. 

 Oscar is not a party to this appeal. 

 

2

 Section 12021 is now section 29800, subdivision (a). 

3

 The court declared a mistrial on the attempted murder charge after the jury 

was unable to reach a verdict. 
3

FACTS 

 On the evening of October 13, 2011, Gary Montoya was collecting 

recyclables from a trash can outside a Laundromat near the La Carreta Market on Hewes 

Street in the City of Orange. Defendant and a younger male approached Gary. 

Defendant wore a white shirt, while the “kid” with him wore a long sleeve dark flannel 

shirt. The kid was slightly taller than defendant. 

 Gary knew defendant by the moniker “Wicked.” Defendant had “hit up” 

Gary many times before. Gary saw a bulge under defendant’s white shirt, which Gary 

presumed was a gun. 

 Defendant asked Gary where he was from. Gary said, “Modena,” meaning 

Varrio Modena Locos, a criminal street gang. Defendant said, “Puro Pearl,” meaning 

Pearl Street, Modena’s rival gang. The younger man said something about the police, 

and the pair took off. 

 Gary surreptitiously followed them on his bicycle. When Gary turned the 

corner, he saw the men standing in the middle of Pearl Street near Hewes Street. 

 Gary’s brother, David, and David’s girlfriend, Irma, were coming up 

Hewes Street and crossed the street toward a convenience store. Defendant and the other 

man yelled “Pearl Street and all this other shit.” 

 According to Gary’s pretrial police interview (a DVD of which was played 

for the jurors, who also had a transcript), defendant raised his hand and fired a gun at 

David, striking him in the chest. Also, on the day after the shooting, an officer 

interviewed Gary and showed him a series of photographs. Gary identified defendant as 

the shooter. 

 Another witness, Ricardo Araiza, told police that the man in a white shirt 

was the shooter. On the date of the shooting, Araiza was in his front yard at the corner of 

Hewes and Pearl Street. Araiza saw two Hispanic men walk across the street. One was a 
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little taller than the other — one was about 5 feet 9 inches tall, while the other was 

around 5 feet 10 inches tall. The shorter man wore a white t-shirt, while the taller one 

wore a dark colored shirt that might have been a sweatshirt. The two men started yelling 

at a couple who were walking on Hewes Street. The men ran toward the couple and 

confronted them. Araiza saw the man in the white shirt fire a gunshot at either the male 

or the female. Araiza heard the woman scream. Araiza described the gun to the police as 

a black nine or .40 millimeter handgun. 

 According to Irma’s trial testimony, however, it was the taller man who 

pointed a gun at David. David and the shorter man began punching each other, and 

David fell to the ground. In order to scare the men, Irma screamed that a “cop” was 

coming. The taller man lowered the gun, looked around, and then raised the gun again. 

The gun went off, and the two men ran away. Irma testified she did not see either of the 

men present in the courtroom. 

 An officer interviewed David, the victim, at the hospital. David told the 

officer that there was a taller female standing behind the two males during the incident, 

that one man pushed him, knocking him off balance, and that the other man pointed a gun 

at him and shot him. David told the officer that if he (David) were to cooperate, 

something could happen to him, his kids, or Irma. 

 In a police interview, Gabrielle Harris stated she was with defendant and 

Oscar in the La Carreta Market parking lot near Hewes Street and Chapman Avenue in 

the City of Orange. Defendant and Oscar saw a man on a bicycle and went after him. 

After they left the man on the bicycle, they had a confrontation with another man and a 

woman who were walking on Hewes Street. The man yelled out “Modena.” Defendant 

and Oscar yelled, “Pearl Street,” and ran across the street to confront the man. Defendant 

kicked the man, the man pushed defendant, and then defendant punched the man. “They 

thought the victim was reaching for something in his waistband; and that’s when the shot 

took place.” Harris refused to tell the police whether it was defendant or Oscar who fired 
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the shot. During a break in Harris’s trial testimony, Harris blurted out to an Orange 

County district attorney’s investigator, “You have the wrong guy,” “Jesse did not shoot,” 

and “Oscar was the shooter.” 

 A gang expert testified at trial that at the time of the shooting, the Modena 

and Pearl Street gangs were engaged in a turf war. Pearl Street was trying to expand and 

take over Modena’s entire claimed territory. The area where the shooting took place was 

in Modena’s claimed turf. In the three-year period before the shooting, Pearl Street 

members had committed five to seven assaults with deadly weapons or attempted 

murders against Modena members. 

 Defendant and Oscar were members of Pearl Street. Defendant’s moniker 

is Wicked. Oscar is Silent. Oscar is younger and taller than defendant. David was an 

active member of Modena at the time of the shooting, while Gary was affiliated with 

Modena. 

 The gang expert explained that guns are “typically shared within the gang 

by fellow gang members.” This type of gun is called a “gang gun” and is owned or 

possessed by the entire gang. When asked whether he had any information about 

whether the gun used to shoot David was a gang gun, the expert testified that some text 

messages had talked about Oscar passing the gun to Franco Vieyra, a fellow Pearl Street 

member. The expert opined that a hypothetical shooting like the one here would benefit 

Pearl Street. 

DISCUSSION 

 

Substantial Evidence Supports Defendant’s Conviction of Possession of a Firearm by a 

Felon 

 Under former section 12021, subdivision (a)(1), a felon “who owns, 

purchases, receives, or has in his or her possession or under his or her custody or control 
6

any firearm is guilty of a felony.” Defendant asserts the People’s sole theory at trial was 

that Oscar was the shooter, while defendant constructively possessed the gun fired by 

Oscar. Defendant concludes he could be convicted of possession of a gun by a felon only 

if he had “custody or control” of the firearm. He contends the evidence was insufficient 

to show he (1) knew Oscar had the gun or (2) had the right or ability to jointly control its 

use. 

 “Possession may be actual or constructive. Actual possession means the 

object is in the defendant’s immediate possession or control. A defendant has actual 

possession when he himself has the weapon. Constructive possession means the object is 

not in the defendant’s physical possession, but the defendant knowingly exercises control 

or the right to control the object. [Citation.] Possession of a weapon may be proven 

circumstantially, and possession for even a limited time and purpose may be sufficient.” 

(In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) 

 In reviewing a case for sufficiency of the evidence, an appellate court 

determines whether “‘on the entire record, a rational trier of fact could find the defendant 

guilty beyond a reasonable doubt.’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) The 

appellate court views “the evidence in the light most favorable to the People and must 

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

deduce from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) 

 The prosecution’s theory at trial was that either defendant or Oscar was the 

shooter. The People presented evidence, as summarized in our factual recitation above, 

for both these scenarios. In his opening brief, defendant omits all of the evidence that he 

fired the gun. By failing to include all “significant facts” as required by California Rules 

of Court, rule 8.204(a)(2)(C)), he has waived the alleged error. (Foreman & Clark Corp. 

v. Fallon (1971) 3 Cal.3d 875, 881; Schmidlin v. City of Palo Alto (2007) 157 

Cal.App.4th 728, 737-738.) 
7

 The prosecutor’s closing statement did not theorize that only Oscar could 

be the shooter. In his opening and closing statement, the prosecutor told the jurors that 

“one of these two defendants shot that man,” but “it didn’t make a difference whether or 

not you decided it was Oscar or it was [defendant who] fired the gun, because both of 

them were, in the end, equally liable for” the charges against them. The prosecutor 

advised the jurors to decide why some witnesses gave trial testimony that differed from 

their statements to the police at the time of the shooting. The prosecutor argued that Irma 

(who testified the taller man had the gun) had “a consistent story” that appeared unbiased, 

but that Araiza (who told police the man in the white shirt was the shooter) also seemed 

unbiased and that Gary (who told police that defendant was the shooter) had reasons for 

declining to tell the truth at trial, such that his initial statement to police made the most 

“sense.” The prosecutor acknowledged there was “a good chance” Gary and Araiza were 

mistaken, “given their distance to the altercation itself.” 

 The prosecutor began his discussion of the specific charges by stating: 

“And I know from the People’s perspective I’ve argued to you that it doesn’t make a 

difference who the shooter was. It does make it easier when we’re talking about it to 

identify who is probably the shooter. And it certainly helps in terms of your discussions 

to start off with somebody and then, from there, progress through the discussion. If at 

some point you decide, . . . we disagree, you can flip-flop who the shooter was and you 

can get to the same result. So, for this purpose, let’s assume that Oscar DeRosas is the 

shooter. [¶] And there’s somewhat good reason for it based on the fact that the two 

witnesses who were present, immediately there when the shooting happens, Irma De La 

Cruz . . . matches Oscar, and . . . Gabrielle Harris basically says that Oscar DeRosas was 

the shooter.” 
8

 The prosecutor argued three alternative theories of liability for defendant 

and for Oscar, consisting of actual possession by one of them, while the other person 

aided and abetted the gun possession or constructively possessed the gun within the 

meaning of the court’s instructions. Thus, the prosecutor properly laid out for the jury 

the evidence and the jurors’ options. Contrary to defendant’s argument, this is not a case 

like In Re Sakarias (2005) 35 Cal.4th 140, where two coparticipants in murder were tried 

in separate trials, and the prosecutor improperly argued, intentionally and in bad faith, 

“inconsistent and irreconcilable factual theories” in the two separate trials by 

manipulating and omitting evidence (id. at p. 145; id. at pp. 154-156). 

 Here, substantial evidence supported a finding defendant actually possessed 

the gun. Araiza and Gary made that statement to the police in the aftermath of the 

shooting. Thus, even if we were to conclude the evidence was insufficient to support the 

constructive possession and/or aiding and abetting theories as to defendant (which we do 

not), we would still affirm the judgment. In cases where “the jury has merely been ‘left 

the option of relying upon a factually inadequate theory’” (People v. Guiton (1993) 4 

Cal.4th 1116, 1128), “reversal is not required whenever a valid ground for the verdict 

remains, absent an affirmative indication in the record that the verdict actually did rest on 

the inadequate ground” (id. at p. 1129).

4

 

4

 The jury was instructed that its verdict had to be unanimous as to each 

defendant and each charge. 
9

DISPOSITION 

 The judgment is affirmed. 

 

 IKOLA, J. 

WE CONCUR: 

RYLAARSDAM, ACTING P. J. 

ARONSON, J.