Filed 7/21/15 P. v. Young 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

TIMOTHY JAMES YOUNG,

Defendant and Appellant.

F067277

(Super. Ct. Nos. 10CM0323 & 

12CM1862)

OPINION

APPEAL from a judgment of the Superior Court of Kings County. Thomas De 

Santos, Judge.

Sylvia Koryn, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Marcia 

A. Fay, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

In case No. 10CM0323, Timothy James Young (defendant) pled no contest to two 

counts of assault by means of force likely to produce great bodily injury (Pen. Code,1

§ 245, subd. (a)(1)), in return for which two other counts and enhancement allegations 

were dismissed. Imposition of sentence was suspended, and he was placed on probation 

for five years on various terms and conditions. On January 18, 2012, he was alleged to 

be in violation of probation. 

In case No. 12CM1862, a jury convicted defendant of carrying a loaded firearm in 

public (§ 25850, subd. (a); count 1), receiving stolen property (§ 496, subd. (a); count 2), 

possessing ammunition when prohibited from owning or possessing a firearm (§ 30305, 

subd. (a)(1); count 3), possessing a firearm after having been convicted of a felony 

(§ 29800, subd. (a)(1); count 4), possessing cocaine base (Health & Saf. Code, § 11350, 

subd. (a); count 5), and resisting arrest (§ 148, subd. (a)(1); count 7). As to counts 3 and 

5, the jury found defendant was personally armed with a firearm in the commission of the 

offense (§ 12022, subd. (c)), and, as to counts 1 through 5, that he committed the offense 

for the benefit of or in association with a criminal street gang (§ 186.22, 

subd. (b)(1)(A)).2 

Defendant subsequently was found to be in violation of the terms of his probation 

in case No. 10CM0323. He was sentenced in both cases to an aggregate term of 12 years 

in prison, and was ordered to pay various fees, fines, and assessments. 

 

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

2

In count 5, the jury found defendant not guilty of possessing cocaine for sale. 

(Health & Saf. Code, § 11351.) Count 6, which charged defendant with actively 

participating in a criminal street gang (§ 186.22, subd. (a)), was dismissed upon the 

prosecutor’s motion. As to counts 1 through 5, the first amended information alleged 

defendant was personally armed with a firearm in commission of the offenses. (§ 12022, 

subd. (c).) Although this allegation was only presented to jurors with respect to counts 3 

and 5, it was subsequently determined subdivision (c) of section 12022 did not apply to 

any of the offenses of which defendant was convicted, and the allegations and findings 

were deemed changed to subdivision (a) of section 12022. 
3.

On appeal, we hold: (1) The convictions on counts 1, 3, and 4 are supported by 

substantial evidence; (2) The conviction on count 2 must be reversed for insufficient 

evidence; and (3) If, upon resentencing, count 1 is again designated the principal term, 

sentence on count 3 must be stayed pursuant to section 654.

FACTS3

I

PROSECUTION EVIDENCE

On the night of May 28, 2012, Lemoore Police Officers Santos, Moritz, and 

Avelar, along with Sergeant Gonzalvez, went to the Montgomery Crossing apartment 

complex on Tammy Lane in Lemoore, for the purpose of arresting defendant on a 

warrant. They approached in such a way as to try to avoid detection by anyone in the 

complex. Avelar positioned himself at the southeast corner of the complex, Moritz took 

up a position at the southwest corner, and Gonzalvez and Santos entered the complex at 

the northwest corner. They then separated, with Santos heading east along the north side 

of the complex, and Gonzalvez angling south toward the complex’s center. 

There was a stairwell just east of the playground inside the complex. As Santos 

walked toward the stairs, he saw a female who appeared to be speaking to someone at the 

top of the landing. As Santos approached, he looked up and saw defendant standing on 

top of the landing. Defendant was wearing a red shirt and red Chicago Bulls cap. Santos 

did not see anyone else in the area. 

Defendant made eye contact with Santos, who was in uniform, then turned and 

started to walk away. Santos yelled at him to stop, whereupon defendant began to run 

south. He ran down stairs that opened onto Tammy Lane, just east of where a white 

Chevrolet pickup truck was parked. 

 

3 Because defendant raises no issues concerning case No. 10CM0323, we recite 

only the facts of case No. 12CM1862.
4.

When defendant exited the stairwell, he began to run in a southwesterly direction 

toward the truck and directly at Moritz, with Santos in pursuit. As defendant ran, he was 

reaching toward his front waistband. He appeared to reach inside his pants or grab the 

front area of the jeans, which were baggy and looked like they were sagging. Santos did 

not see defendant pull anything from his waistband or clothing, and was unable to tell if 

there was anything in defendant’s hands, because they were in front of defendant’s body 

as he ran. 

Moritz, who was in uniform, yelled at defendant to stop. Defendant appeared to 

look at him. He began to stumble, stepped off the curb on Tammy Lane, and collided 

with the front passenger-side door of the white pickup. He kind of bounced off the 

vehicle, stumbled forward out into the street, fell down, rolled over once, and stopped.

He was taken into custody almost in the middle of Tammy Lane, directly in front of, and 

approximately 10 to 15 feet from, the pickup. Defendant was calm and laughing. He 

commented that he was drunk. He did not appear to be under the influence of a 

stimulant. 

Defendant was placed in the back of Moritz’s patrol vehicle. The officers were 

standing in the street when Moritz, who was about 20 to 25 feet in front of the front 

passenger side of the truck, looked over at the vehicle and saw an object underneath it.

On the side of the pickup was a thin layer of dust that was disturbed in the area of the 

collision. Right underneath the door, by the front passenger-side wheel, was a black 

nine-millimeter Beretta semiautomatic handgun with the serial number still on it. From 

the front of the truck, the gun was visible from the street. It did not have any dust, dirt, or 

debris on it. The weapon’s safety mechanism was off and one round was in the chamber. 

There were 14 rounds of different brands and kinds of ammunition (hollow point and full 

metal jacket ball point bullets) in the 15-round-capacity magazine, which fit completely 
5.

into the gun.4It is illegal for a civilian to have a magazine that holds more than 10 

rounds. This magazine had writing on it that read, “restricted-law enforcement and 

government use only.”

At no time did Santos see anyone else near the pickup. Only two or three minutes 

elapsed from the time the officers arrived and took up their positions, to the time 

defendant collided with the side of the truck. Avelar, who was stationed at the southeast 

corner of the apartment complex, on Tammy Lane, first saw defendant when the other 

officers were already standing around him. At no time did Avelar see any other 

individuals on Tammy Lane. 

A search of defendant’s person revealed no ammunition. An unlabeled 

prescription bottle holding 5.79 grams of a white powdery substance containing cocaine 

was found in defendant’s right front pants pocket, however. When Santos asked 

defendant what it was, defendant said he had no idea. Santos also found $653 in various 

denominations inside the same pocket. In addition, defendant had two cellphones in his 

left front pocket. The screen saver on one was a picture of Isaac Donez, a validated gang 

member who was fairly high up in the Norteño hierarchy and who admitted backing 

Brown Pride Norteños. Text conversations extracted from one of the phones, together 

with the amount of cocaine and cash on defendant’s person, led Kings County Sheriff’s 

 

4

In the course of rendering the weapon safe and booking it into evidence, Santos 

and Gonzalvez both handled the gun. Santos was wearing gloves. Gonzalvez was not; 

his priority was to render the weapon safe.

The gun subsequently was processed for fingerprints. Only one useable print was 

found; it was a partial print on top of the slide. Some slight fragmentary prints of no 

value were also found. Although a full identification could not be established, Gonzalvez 

could not be excluded as the source of the partial print. Defendant was excluded as the 

source of the print. No fingerprints were found on the magazine, and no usable prints 

were found on the bullets. According to the People’s fingerprint expert, it is typical not 

to find prints on guns and bullets. 
6.

Deputy Dobbins, a member of the Kings County Narcotic Task Force, to opine the 

cocaine was possessed for sale.5

Brian Vannoort once owned the gun found in this case. Vannoort, who was a 

California Highway Patrol officer at the time of trial, bought the gun from a gun shop in 

Hanford in January 1996. He was a civilian at the time and had just been discharged 

from the military. He purchased the gun in order to have a personal firearm. In January 

1999, Vannoort returned to his home in Hanford from his job as an air traffic controller in 

the Bay Area, to discover his house had been burglarized and the gun taken. 

At the time Vannoort purchased the gun, it came with a 10-round magazine. He 

bought a 15-round magazine at the same time. At the time, such a high-capacity 

magazine was not restricted. Vannoort was unable to recall the exact writing on the 15-

round magazine he purchased. 

Officer Henderson of the Lemoore Police Department testified as an expert in 

gangs, specifically Norteños. Henderson was familiar with defendant from personal 

contacts and the reports of other Lemoore officers.6 He explained defendant was a 

member of the Brown Pride Norteños, a Norteño subset. Defendant’s moniker was 

“Criminal.” In some of the text messages found on one of the cellphones in this case, 

there were references to “Beazt,” which was something Norteños call each other. In 

addition, a number of gang-related items were found in a search of defendant’s residence. 

Those items included clothing that was red, or red, white, and black, all colors claimed by 

Norteños.

 

5 Dobbins explained cocaine commonly is sold in amounts of .1 and .2 grams, with 

.1 gram costing $10 and .2 grams costing $20. The value of the cocaine possessed by 

defendant was less than $200 if sold without it being broken up. In Dobbins’s 

experience, it was common to find drug dealers in possession of more than one cellphone, 

one of which was usually used for their narcotics transactions, and the other which was 

for more personal use. 

6 The parties stipulated defendant was previously convicted of two felonies. 
7.

In Henderson’s experience as a member of the Kings County Gang Task Force, he 

had never seen a gun lying around in the street. He had found several guns after subjects 

ran from him; the subjects threw them in bushes and under cars.

Every gang member with whom Henderson spoke brought up respect. The more 

respect someone has as a gang member, the more status that person has. The more status 

that person has, the higher up he moves in the gang. Committing crimes for the gang 

brings respect, as does “kick[ing] back” money from drug sales or other crimes to the 

gang. In addition, a gang member gets respect by carrying a loaded semiautomatic 

weapon, because it shows the person is willing to use the weapon. A gang member is 

always supposed to be armed. Once a gang member uses a weapon, however, it will be 

discarded, for example by throwing it in an aqueduct. In addition, normally the serial 

number will be filed off so the source of the gun cannot be determined, or it will be a 

stolen gun. 

In response to a hypothetical question based on the prosecution’s evidence in this 

case, Henderson opined the various crimes were committed for the benefit of, at the 

direction of, or in furtherance of the gang. In addition, given the circumstances 

surrounding defendant’s past contacts with police and the fact defendant was housed in 

jail in a pod containing only Norteños and he had not been assaulted, Henderson 

concluded defendant was a Norteño “in very good standing.” 

II

DEFENSE EVIDENCE

Connie Donez, defendant’s grandmother, frequently gave him money.7 A couple 

of days before he was arrested in this case, she gave him a little over $800. 

Mariah Davila, defendant’s cousin, saw defendant every day during May 2012. 

During that time, defendant was using cocaine on a regular basis, including most of the 

 

7 Ms. Donez was once related to Isaac Donez by marriage.
8.

week of his arrest. When Davila picked defendant up from an aunt’s house several hours 

before he was arrested, he was under the influence of cocaine and had been drinking. 

DISCUSSION

I

SUFFICIENCY OF THE EVIDENCE

Defendant contends the evidence was insufficient to sustain his convictions on 

counts 1 through 4. The applicable legal principles are settled. The test of sufficiency of 

the evidence is whether, reviewing the whole record in the light most favorable to the 

judgment below, substantial evidence is disclosed such that a reasonable trier of fact 

could find the essential elements of the crime beyond a reasonable doubt. (People v. 

Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 

319.) Substantial evidence is that evidence which is “reasonable, credible, and of solid 

value.” (People v. Johnson, supra, at p. 578.) An appellate court must “presume in 

support of the judgment the existence of every fact the trier could reasonably deduce 

from the evidence.” (People v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court 

must not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise 

the credibility of the witnesses, or resolve factual conflicts, as these are functions 

reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367). “Where 

the circumstances support the trier of fact’s finding of guilt, an appellate court cannot 

reverse merely because it believes the evidence is reasonably reconciled with the 

defendant’s innocence. [Citations.]” (People v. Meza (1995) 38 Cal.App.4th 1741, 

1747.) This standard of review is applicable regardless of whether the prosecution relies 

primarily on direct or on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 

1107, 1125.)

With these principles in mind, we turn to defendant’s specific claims.
9.

A. Possessing/Carrying a Firearm and Ammunition

Defendant first contends the evidence was insufficient to show he carried a loaded 

firearm, as required for conviction on count 1; possessed ammunition, as required for 

conviction on count 3; and possessed a firearm, as required for conviction on count 4.8 

We disagree.

“A defendant possesses a weapon [or ammunition] when it is under his dominion 

and control. [Citation.] A defendant has actual possession when the weapon [or 

ammunition] is in his immediate possession or control.” (People v. Peña (1999) 74 

Cal.App.4th 1078, 1083.)9 Knowledge is also an element. (People v. Jeffers (1996) 41 

Cal.App.4th 917, 922; see People v. Morales (2001) 25 Cal.4th 34, 41.) Although “[n]o 

specific criminal intent is required, and a general intent to commit the proscribed act is 

sufficient to sustain a conviction” (People v. Snyder (1982) 32 Cal.3d 590, 592), 

 

8 Section 25850, subdivision (a), as charged in count 1, was formerly section 12031, 

subdivision (a)(1). Section 30305, subdivision (a)(1), as charged in count 3, was 

formerly section 12316, subdivision (b)(1). Section 29800, subdivision (a)(1), as charged 

in count 4, was formerly section 12021, subdivision (a). Since the statutes were 

continued without substantive change (Cal. Law Revision Com. com., 51D pt. 3 West’s 

Ann. Pen. Code (2012 ed.) foll. § 25850, subd. (a), p. 257; Cal. Law Revision Com. com., 

51D pt. 4 West’s Ann. Pen. Code, supra, foll. § 29800, subd. (a)(1), p. 194 & § 30305, 

subd. (a)(1), p. 284), authorities analyzing the former statutes are equally applicable to 

the present laws.

9 Possession can also be constructive. A defendant “has constructive possession 

when the weapon, while not in his actual possession, is nonetheless under his dominion 

and control, either directly or through others. [Citations.]” (People v. Peña, supra, 74 

Cal.App.4th at pp. 1083-1084.)

We are concerned here with whether defendant actually physically possessed the 

gun and ammunition, and personally carried the loaded firearm. (See People v. White

(2014) 223 Cal.App.4th 512, 524; People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 6.) 

That the items may not have been on his person at the moment of his arrest does not 

negate a finding he possessed and carried them. (See People v. Palaschak (1995) 9 

Cal.4th 1236, 1237, 1240-1242.) Either the evidence was sufficient to show actual 

physical possession and carrying, or it was insufficient. Our analysis and conclusion 

would be the same under a theory of constructive possession, however.
10.

wrongful intent must be shown (People v. Jeffers, supra, 41 Cal.App.4th at p. 922). “[A] 

felon who acquires possession of a firearm through misfortune or accident, but who has 

no intent to exercise control or to have custody, commits the prohibited act without the 

required wrongful intent.” (Ibid.)

Each of the necessary elements may be established by circumstantial evidence and 

any reasonable inferences that can be drawn from such evidence. (See People v. 

Morales, supra, 25 Cal.4th at p. 41; People v. Williams (1971) 5 Cal.3d 211, 215.) Here, 

the evidence was such that a rational trier of fact could have concluded defendant had the 

gun in the waistband or front of his baggy pants, and that it came out when he collided 

with the pickup truck and fell. Although defendant’s mere presence in the vicinity of the 

gun would be insufficient to establish possession or carrying (People v. Elder (2014) 227 

Cal.App.4th 1308, 1313; see In re Anthony J. (2004) 117 Cal.App.4th 718, 728), the 

evidence here showed defendant — who was a gang member and so was supposed to 

always be armed — was reaching inside or grabbing the front of his jeans as he fled. In 

addition, the gun was found right below where he collided with the truck; it had no dirt, 

dust, or debris on it, despite the fact the truck was dusty; and the gang expert had never 

seen a gun just lying around in the street. No one else was seen in the area. Although a 

jury may not rely on unreasonable inferences, and an inference is not reasonable if it is 

based only on speculation (People v. Hughes (2002) 27 Cal.4th 287, 365), reasonable 

inferences lead to the conclusion defendant had the loaded gun on his person immediately 

prior to his arrest.

Defendant points to the lack of forensic evidence, such as fingerprints on the gun. 

Given testimony this was typical, however, the absence of such evidence does not negate 

the sufficiency of the evidence to prove possession and carrying. (See People v. Lewis

(2009) 46 Cal.4th 1255, 1293.)

Nor does People v. Sifuentes (2011) 195 Cal.App.4th 1410 (Sifuentes), on which 

defendant relies, compel a different conclusion. In that case, police found convicted 
11.

felons Sifuentes and Lopez in a motel room. Sifuentes was lying on top of the bed 

nearest the door, while Lopez was kneeling on the floor on the far side of the second bed. 

A loaded handgun was found under the mattress next to where Lopez knelt. (Id. at 

pp. 1413-1414.) At trial, a gang expert testified Sifuentes and Lopez were active 

participants in a particular criminal street gang; guns played a prominent role in the gang 

subculture and a “gang gun” was a gun passed freely among gang members for use in 

their criminal endeavors; aside from certain restrictions, a “gang gun” was accessible to 

all gang members at most times; and a gang member possessing a gun would inform 

other gang members that he had a firearm. (Id. at pp. 1414-1416.)

Sifuentes was convicted, inter alia, of possession of a firearm by a felon, based on 

the doctrine of constructive possession. (Sifuentes, supra, 195 Cal.App.4th at pp. 1413, 

1417.) On appeal, he claimed the evidence was insufficient to support a finding he had 

the right to control the firearm discovered near Lopez. (Id. at p. 1413.) The Court of 

Appeal agreed, concluding: “The prosecutor failed to elicit from the expert any 

substantial evidence Sifuentes had the right to control the firearm. The expert did not 

testify all gang members had the right to control communal gang guns, assuming this 

firearm fell into that category. Rather, ... he testified certain restrictions applied 

concerning ‘access’ to a gang gun and did not explain these restrictions or whether he 

equated access with a right to control. Nor did the expert link Sifuentes to the particular 

firearm found next to Lopez.” (Id. at p. 1419, fn. omitted.)

The evidence in the present case is markedly different from that in Sifuentes. 

Even if we were to assume the doctrine of constructive possession came into play, we 

would find the evidence adequately linked defendant to the firearm, and established the 

requisite knowledge, wrongful intent, and dominion and control over it and the 

ammunition it contained.

“A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon 

no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s 
12.

verdict. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Reversal of the 

convictions on counts 1, 3, and 4 is unwarranted.

B. Receiving Stolen Property

We agree with defendant, however, that the evidence is insufficient to sustain his 

conviction on count 2 (receiving stolen property), because it failed to show he knew the 

firearm was stolen.10

To obtain a conviction for receiving stolen property, “the People must prove 

(1) the property was stolen; (2) the defendant knew it was stolen; and (3) the defendant 

had possession of it. [Citations.]” (In re Anthony J., supra, 117 Cal.App.4th at p. 728.) 

“As to the [second] element, ‘Although guilty knowledge of the fact that the property was

stolen is an essential fact to be proved in a prosecution for receiving stolen property, such 

knowledge need not be that actual and positive knowledge which is acquired from 

personal observation of the fact. [Citation.] It is not necessary that the defendant be told 

directly that the property was stolen. [Citation.] Knowledge may be circumstantial and 

deductive. [Citations.]’ [Citations.]” (People v. Schroeder (1968) 264 Cal.App.2d 217, 

225.) The defendant must actually know the property was stolen, however. That he or 

she reasonably should have known is not enough. (See People v. Tessman (2014) 223 

Cal.App.4th 1293, 1302.) Furthermore, while guilty knowledge may be proven by 

circumstantial evidence, “when challenged on appeal those circumstances must be shown 

to constitute substantial evidence.” (People v. Kunkin (1973) 9 Cal.3d 245, 254.) 

“Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient 

 

10 In light of our conclusion, we do not address defendant’s claim the trial court erred 

by denying his motion for acquittal (§ 1118.1) on count 2. Moreover, since the jury was 

only instructed concerning property that was stolen, we need not concern ourselves with 

the fact the first amended information charged, and the jury found, the property was 

“stolen and obtained by extortion.” (Italics added.) That there manifestly was no 

evidence the gun was obtained by extortion would not require reversal were the evidence 

otherwise sufficient. (See People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
13.

to support a conviction. Suspicion is not evidence; it merely raises a possibility, and this 

is not a sufficient basis for an inference of fact. [Citations.]” (People v. Redmond (1969) 

71 Cal.2d 745, 755.) 

In the present case, the evidence undisputedly established the gun was stolen. 

Unexplained possession of stolen property, standing alone, will not support a conviction 

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

On the other hand, “[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, 58 

Cal.2d 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, 1150, fn. 6.) In the present case, the gun clearly 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.) Insofar as the record shows, defendant was 

not asked for an explanation of how he acquired the weapon. (Cf. People v. Lopez (1954) 

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

stolen and time it was found in defendant’s possession, evidence was sufficient to show 

guilty knowledge where there was testimony defendant would buy or receive stolen 

property when opportunity arose, and defendant gave conflicting and unsatisfactory 

accounts of his acquisition of item].) Nor can the requisite knowledge be inferred from 
14.

defendant’s flight from police, even assuming he intentionally discarded the weapon 

rather than unintentionally dropping it; defendant no doubt did not want officers to find 

the significant amount of cocaine he had on his person or the firearm it was illegal for 

him to possess because he was a convicted felon. (Cf. People v. Taylor (1969) 2 

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

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

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

defendant’s possession of other, separately stolen, property].)

In his argument to the jury, the prosecutor addressed the knowledge element, 

stating:

“Okay, how do we prove that? Well, the People submit to you that here 

you have a Norteno gang member. You heard plenty of evidence that 

having a stolen weapon is beneficial to the gang, because it can’t be traced. 

And that in addition to that, this particular weapon had an illegal 15-round 

high capacity magazine that was clearly stamped, and you will see the 

exhibit, something to the effect restricted use, law enforcement only, okay. 

So ... the People submit to you that is how the defendant knew that it was 

stolen. He has got this illegal weapon, he doesn’t have any — there is no 

evidence that there was any indicia of ownership on his part, but the People 

submit to you just based on the fact that he is a Norteno gang member, that 

he is in possession of this weapon ... that has a 15-round high capacity 

magazine that is clearly stamped law enforcement only. The People submit 

to you that he knew that this weapon was stolen at some point, and he had a 

stolen weapon.” 

Henderson, the gang expert, testified that “[n]ormally” a weapon used by gang 

members has the serial number filed off or is a stolen gun. He did not testify, however, 

that gang members only use stolen guns, that every gun used by a member of defendant’s 

gang would be stolen, or that every gang member would have knowledge of the likely 

origin of any gun he used. (See People v. Sifuentes, supra, 195 Cal.App.4th at p. 1417.) 

On the evidence before us, such generalizations would be speculative, particularly in light 
15.

of Henderson’s testimony there were approximately 2,500 Norteños in Kings County 

alone. 

As for the high-capacity magazine that bore the “restricted” legend, it appears 

Vannoort purchased it legally at a time he was neither in the military nor a member of 

law enforcement.11 Even assuming defendant was aware of the stated restriction (of 

which we cannot be certain, because the magazine fit completely into the gun and, given 

the absence of fingerprints on the bullets, we cannot know whether defendant loaded the 

clip himself or the gun was given to him already loaded) and the fact it was illegal for a 

civilian to possess a magazine of that capacity, this suggests the gun was sold or 

transferred unlawfully, not necessarily that it was stolen. An illegal weapon is not 

inevitably a stolen one. (See People v. Kunkin, supra, 9 Cal.3d at pp. 254-256 [receiving 

stolen property convictions reversed for insufficient evidence of guilty knowledge; 

circumstances that might put publisher on notice official displeasure would result from 

publication of information released without authorization are not same as circumstances 

that should signal property tendered was stolen].)

We recognize we are required to consider the evidence as a whole. Taken together 

and viewed in the light most favorable to the prosecution, however, the evidence here 

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

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.)

The conviction on count 2 must be reversed.

 

11 We can only speculate the fact he was an air traffic controller may have been 

sufficient to satisfy the restriction.
16.

II

IMPOSITION OF CONSECUTIVE TERM ON COUNT 3

In light of our reversal of the conviction on count 2, the matter must be remanded 

for resentencing. For guidance of the court and parties, however, we address defendant’s 

claim the trial court erred by imposing a consecutive sentence on count 3.

The trial court designated count 1 (carrying a loaded firearm in public) as the 

principal term. It imposed, inter alia, a consecutive term on count 3 (felon in possession 

of ammunition), although it stayed, pursuant to section 654, sentence on count 4 (felon in 

possession of a firearm).

Defendant contends, and the People concede, sentence on count 3 should have 

been stayed pursuant to section 654, inasmuch as the same ammunition was involved in 

each count and there was no evidence to support the trial court’s implied factual finding 

defendant had different or multiple objectives in carrying the loaded firearm and 

possessing the ammunition in the gun itself. (See, e.g., People v. Jones (2012) 54 Cal.4th 

350, 357-358; People v. Sok (2010) 181 Cal.App.4th 88, 100; People v. Lopez (2004) 119 

Cal.App.4th 132, 137-138.)

On remand, the trial court is entitled to reconsider its entire sentencing scheme, so 

long as defendant is not sentenced to a term exceeding his original sentence. (People v. 

Burns (1984) 158 Cal.App.3d 1178, 1184.) Should the trial court again designate 

sentence on count 1 as the principal term, it must stay sentence on count 3.
17.

DISPOSITION

The conviction on count 2 is reversed. Sentence is vacated and the matter is 

remanded for resentencing. In all other respects, the judgment is affirmed.

_____________________

DETJEN, J.

WE CONCUR:

_____________________

 LEVY, Acting P.J.

_____________________

 POOCHIGIAN, J.