Filed 12/23/14 P. v. DeRosas 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 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 appoin tment 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 code fendant 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 charge d with possession of a firearm by a probationer. The jury convicted defendant of a ssault with a firearm, possession of a firearm by a felon, and street terrorism. 3 The jury found true th e 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 pr ison term of 18 years, comprised of eight years for assault with a deadly weapon (double the uppe r term), five years for the associated gang enhancement, and five years for the prior serious felony conviction. The court stayed execution of sentence for po ssession of a firearm and street terrorism. On appeal defendant contends insuffi cient evidence supports his conviction for firearm possession by a felon. We disagr ee with that assessment and affirm the judgment.

1 All statutory references are to the Penal Code. For convenience and to avoid confus ion, 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 se ction 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 Laundrom at 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 slight ly taller than defendant. Gary knew defendant by the monike r “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 wh ere he was from. Gary said, “Modena,” meaning Varrio Modena Locos, a criminal street ga ng. Defendant said, “Puro Pearl,” meaning Pearl Street, Modena’s rival gang. The you nger man said something about the police, and the pair took off. Gary surreptitiously followed them on hi s bicycle. When Gary turned the corner, he saw the men standing in the mi ddle 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), de fendant 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 hi m a series of photographs. Gary identified defendant as
the shooter. Another witness, Ricardo Araiza, told police that the ma n in a white shirt was the shooter. On the date of the shooting, Ar aiza was in his front yard at the corner of Hewes and Pearl Street. Araiza saw two Hisp anic men walk across the street. One was a4 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 ma n wore a white t-shirt, while the taller one wore a dark colored shirt that might have be en a sweatshirt. The two men started yelling at a couple who were walkin g on Hewes Street. The men ran toward the couple and
confronted them. Araiza saw the man in the wh ite 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 punch ing each other, and David fell to the ground. In order to scar e 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 vic tim, at the hospital. David told the
officer that there was a talle r female standing behind the tw o males during the incident, that one man pushed him, knocking him off ba lance, and that the other man pointed a gun
at him and shot him. David told the office r that if he (David) were to cooperate, something could happen to him, his kids, or Irma. In a police interview, Gabrielle Ha rris 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 sa w a man on a bicycle and went after him. After they left the man on the bicycle, they had a confrontation w ith 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 defenda nt 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 fired5 the shot. During a break in Harris’s trial testimony, Harris blurte d out to an Orange County district attorney’s i nvestigator, “You have the wron g 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 assa ults with deadly weapons or attempted murders against Modena members.
Defendant and Oscar were members of Pearl Street. De fendant’s moniker is Wicked. Oscar is Silent. Oscar is young er and taller than defendant. David was an
active member of Modena at the time of th e 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 aske d whether he had an y 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 gu n to Franco Vieyra, a fellow Pearl Street member. The expert opined th at a hypothetical shooting lik e the one here would benefit
Pearl Street.

DISCUSSION

Substantial Evidence Supports Defendant’s C onviction of Possession of a Firearm by a Felon Under former section 12021, subd ivision (a)(1), a felon “who owns, purchases, receives, or has in his or her posse ssion or under his or her custody or control6 any firearm is guilty of a felony.” Defendant a sserts the People’s sole theory at trial was that Oscar was the shooter, while defendan t constructively possessed the gun fired by
Oscar. Defendant concludes he could be conv icted 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 constr uctive. Actual possession means the object is in the defendant’s immediate possess ion or control. A defendant has actual possession when he himself has the weapon. Constructive possession m eans the object is not in the defendant’s physi cal possession, but the defend ant knowingly exercises control or the right to control the object. [Cita tion.] Possession of a weapon may be proven circumstantially, and possession for even a lim ited time and purpose may be sufficient.” ( In re Daniel G. (2004) 120 Cal.A pp.4th 824, 831.) In reviewing a case for sufficiency of the evidence, an appellate court
determines whether “‘on the entir e 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 judg ment 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 tr ial was that either defendant or Oscar was the shooter. The People presente d evidence, as summarized in our factual recitation above,
for both these scenario s. In his opening brief, defendant omits all of the evidence that he fired the gun. By failing to include all “si gnificant 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 di d not theorize that only Oscar could be the shooter. In his opening and closing stat ement, 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 [defen dant 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 witn esses gave trial testimony that differed from their statements to the police at the time of th e 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 polic e the man in the white shirt was the shooter) also seemed unbiased and that Gary (who told police that defendant was the sh ooter) had reasons for declining to tell the truth at tr ial, such that his initial stat ement to police made the most “sense.” The prosecutor acknowledged there wa s “a good chance” Gary and Araiza were mistaken, “given their distan ce to the altercation itself.” The prosecutor began hi s 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 cer tainly helps in terms of your discussions
to start off with some body 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 assu me that Oscar DeRosas is the shooter. [¶] And there’s so mewhat good reason for it based on the fact that the two witnesses who were present, immediately th ere 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 alterna tive theories of liability for defendant and for Oscar, consisting of actual possession by one of th em, while the other person aided and abetted the gun po ssession or constructively po ssessed the gun within the meaning of the court’s instructions. Thus, th e prosecutor properly laid out for the jury the evidence and the jurors’ opti ons. 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 improp erly argued, intentiona lly and in bad faith,
“inconsistent and irreconcilable factual th eories” in the two separate trials by manipulating and omitting evidence ( id. at p. 145; id . at pp. 154-156). Here, substantial eviden ce supported a finding defe ndant actually possessed the gun. Araiza and Gary made that statem ent to the police in the aftermath of the shooting. Thus, even if we were to concl ude the evidence was insu fficient to support the constructive possession and/or aiding and abetti ng theories as to defendant (which we do not), we would still affirm the judgment. In cas es where “the jury ha s merely been ‘left the option of relying upon a factually inadequate theory’” ( People v. Guiton (1993) 4 Cal.4th 1116, 1128), “reversal is not require d whenever a valid ground for the verdict remains, absent an affirmative indication in th e record that the verdic t actually did rest on the inadequate ground” ( id . at p. 1129). 4

4 The jury was instruct ed 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.