Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Monterey County Super. Ct. No. SS050513A
Bamattre-Manoukian, ACTING P.J.
Defendant was convicted after jury trial of obliterating the identification information of a firearm (Pen. Code, § 12090). The jury also found true an allegation that defendant committed the offense for the benefit of or in association with a criminal street gang. (§ 186.22, subd. (b)(1).) The trial court sentenced defendant to seven years in state prison.
All further statutory references are to the Penal Code.
On appeal defendant contends: (1) the prosecutor improperly used peremptory challenges to exclude Hispanics from the jury; (2) the evidence is insufficient to support the finding that he obliterated the serial number on a firearm; (3) the trial court’s instruction to the jury that it may presume he obliterated the firearm’s serial number simply because he possessed the firearm unconstitutionally relieved the prosecution of its burden of proof; (4) the evidence is insufficient to support the finding that he possessed the firearm for the benefit of or in association with a criminal street gang; and (5) imposition of the upper term based on facts not found true by a jury beyond a reasonable doubt violated his right to due process. The Attorney General concedes both contentions (2) and (3), and we agree with the concessions. Accordingly, we will reverse the judgment and we will not discuss the remaining contentions.
BACKGROUND
Defendant was charged by amended information with first degree murder (§ 187, subd. (a); count 1); shooting at an occupied motor vehicle (§ 246; count 2); obliterating the identification information of a firearm (§ 12090; count 3); and actively participating in a criminal street gang (§ 186.22, subd. (a); count 4). The information further alleged that the offenses in counts 1 through 3 were committed for the benefit of or in association with a criminal street gang (§ 186.22, subd. (b)(1)), and that defendant personally and intentionally discharged a firearm during the commission of the offense in count 1. (§ 12022.53.)
The trial court heard motions in limine on February 15, 2006, and testimony began on February 22, 2006. Prior to submission of the matter to the jury on March 6, 2006, the prosecutor withdrew count 4. On March 14, 2006, the jury informed the court that it found the defendant guilty of the offense in count 3, and it found the gang enhancement as to that offense to be true, but it could not reach a verdict as to the offenses in counts 1 and 2. The court accepted the verdict as to count 3 and declared a mistrial as to counts 1 and 2.
On May 25, 2006, the court sentenced defendant to seven years in state prison, the sentence consisting of the upper term of three years for the substantive offense plus the upper term of four years for the gang enhancement. Defendant filed a timely notice of appeal on June 9, 2006. On August 11, 2006, the court held a hearing on defendant’s motion for recall and modification of his sentence, and denied the motion. Defendant filed a new notice of appeal the same day.
On appeal defendant contends in part that his conviction “must be reversed because there was insufficient evidence [he] obliterated the serial number on a firearm when the only evidence was that he possessed it. Alternatively, the court’s instruction that the jury may presume he obliterated the serial number simply because he possessed the firearm unconstitutionally relieved the prosecution of its burden of proof.”
The Attorney General responds that “the court instructed the jury that possession of a weapon with obliterated serial numbers ‘shall be presumptive evidence that the possessor has changed, altered, removed or obliterated the same.’ . . . In accordance with In re Christopher K. (2001) 91 Cal.App.4th 853, 856, People v. Wandick (1991) 227 Cal.App.3d 918, 923, and People v. Henderson (1980) 109 Cal.App.3d 59, 65, we agree that the instruction was an improper mandatory presumption.” The Attorney General further responds that “[b]ased on our review of the record, we agree” with defendant’s contention “that the evidence was insufficient to support the jury’s finding that he obliterated the serial number on the gun,” “and therefore, [defendant] cannot be retried on that count.” “Accordingly, because [defendant] was only convicted on the one count and the remaining issues raised by defendant deal with trial errors pertaining to this count, those remaining issues are moot.”
DISCUSSION
Section 12090 makes it a felony for any person to change, alter, remove or obliterate the name of the maker, model, manufacturer’s number, or other mark of identification, including any distinguishing number or mark assigned by the Department of Justice on any pistol, revolver, or any other firearm, without first having secured written permission from the department to make such change, alteration or removal. Section 12091 states: “Possession of any pistol or revolver upon which the name of the maker, model, manufacturer’s number or other mark of identification has been changed, altered, removed, or obliterated, shall be presumptive evidence that the possessor has changed, altered, removed, or obliterated the same.”
The testimony at trial relating to count 3, the section 12090 offense and gang enhancement, was as follows.
Shortly after midnight on August 28, 2004, Juan Gomez Raya was with a group of friends outside his Pacific Avenue home in Salinas. Raya was wearing a black baseball cap, a dark-blue T-shirt under a gray hooded sweatshirt, and long blue jeans. Sureno gang members in Salinas associate with the color blue. A man wearing a white hooded sweatshirt and dark pants walked up to the group and asked the group in English if they were gang members. When the group denied being gang members, the man pulled out a revolver and pointed it at the back of Raya’s head. The man pulled the trigger and a click was heard, but the gun did not fire. He pulled the trigger again and this time the gun fired. Raya fell to the ground and died at the scene within minutes from a gunshot wound at the back of his head. The shooter fired a second shot toward other members of the group who were in a car, then fled.
Fragments from two bullets were collected by police at the scene and by the coroner’s office from Raya’s skull during the autopsy. The police determined that the bullets were from a .38 special or a .357 magnum revolver, not a 9 millimeter, and were hollow-point. Members of the group with Raya described the shooter as a Hispanic male between 5’5” and 5’8” tall, weighing between 150 and 180 pounds, with a dark complexion, very short brown or black hair, and either no mustache or a small one. An officer found a white hooded sweatshirt in the bed of a pickup truck about one block away from the scene, but he did not seize it or photograph it.
Raya’s friends separately identified defendant’s photo in a photo lineup in late December 2004 and early January 2005 as the person who shot Raya. Police officers arrested defendant and searched his home pursuant to a search warrant on January 8, 2005. At the time, defendant was 5’9” tall and weighed 220 pounds, but he weighed 180 pounds in June 2004 and 225.5 pounds on October 3, 2004. The officers found a loaded semi-automatic 9 millimeter handgun and an extra 9 millimeter magazine in a speaker box in defendant’s bedroom. The bullets were hollow point and the serial number of the handgun had been obliterated. A red 49ers beanie and red shirts were also found in defendant’s bedroom. Red and black 49ers sweatshirts were found in defendant’s sister’s bedroom. Defendant’s sister told officers that the red sweatshirt belonged to defendant. Although she also said that some of defendant’s friends were Norteño gang members, she did not say that defendant himself was a Norteño. Norteños identify with the color red.
The police determined that the gun found in defendant’s bedroom did not fire the bullet fragments found at the murder scene.
The trial court instructed the jury pursuant to special instructions requested by the prosecution under section 12091 as follows: “Defendant is accused in Count 3 of having violated section 12090 of the Penal Code, a crime. Every person who commits a crime of tampering with marks on a firearm is guilty of a violation of Penal code section 12090. The word firearm includes 9 millimeter, semiautomatic pistol. For the purposes of this instruction, possession of any pistol or revolver upon which the name of the maker, model, manufacturer’s number or other mark of identification has been changed, altered or removed or obliterated shall be presumptive evidence that the possessor has changed, altered, removed or obliterated the same. [¶] There are two kinds of possession[:] Actual possession and constructive possession. Actual possession requires that a person knowingly exercised direct physical control over a thing. Constructive possession does not require actual possession but does require that the person knowingly exercised control over or the right to control a thing, either directly or through another person or persons. In order to prove this crime, each of the following elements must be proved. One, the defendant possessed a pistol or firearm and, two, there was a change, alteration, removal or obliteration of the name of the maker, model, manufacturer’s number or other mark of identification. Possession of any pistol or revolver upon which the name of the maker, model, manufacturer’s number or other mark of identification has been changed, altered, removed or obliterated, shall be presumptive evidence that the possessor has changed, altered, removed or obliterated the same.” (Italics added.)
Although there was no direct or circumstantial evidence that defendant personally altered the identifying numbers on the firearm found in his bedroom, the court instructed the jury that defendant’s possession of the firearm was presumptive evidence that he did the altering. This was reversible error because section 12091, on which the court’s instruction was based, is a mandatory presumption but “ ‘the prosecution bears the burden of establishing guilt, [and] it may not rest its case entirely on a presumption unless the fact proved is sufficient to support the inference of guilt beyond a reasonable doubt.’ ” (In re Christopher K., supra, 91 Cal.App.4th at pp. 856-857, quoting Ulster County Court v. Allen (1979) 442 U.S. 140, 167.) “[P]ossession does not prove obliteration with the strength required to meet the reasonable-doubt standard.” (People v. Wandick, supra, 227 Cal.App.3d at p. 923, citing People v. Henderson, supra, 109 Cal.App.3d at p. 65; see also In re Christopher K., supra, at p. 857.)
In People v. Wandick, when police officers executed a search warrant on a residence, they found the defendant in the master bedroom. From that room, officers found and seized a .38 Colt revolver that was in a holster hanging on the bedpost in plain view. The serial numbers on the revolver were defaced. (People v. Wandick, supra, 227 Cal.App.3d at p. 921.) At trial, the defendant testified that he did not own the gun, that it belonged to a friend of his lady friend, and that he did not remove the identifying numbers. (Id. at p. 922.) The trial court instructed the jury: “ ‘Possession of any pistol upon which the manufacturer’s number or other mark of identification has been changed, altered, removed or obliterated, shall be presumptive that the possessor has changed, altered, removed or obliterated the same.’ ” (Ibid.) On appeal, the People conceded that the giving of the instruction was error, but claimed that the error was harmless. (Id. at p. 923.) The appellate court disagreed.
“It is one thing to infer intent from a criminal act. It is another matter to infer a criminal act (obliteration of identifying numbers) from another act which may or may not be criminal (possession of a weapon with obliterated identifying marks). Even if the jury found defendant possessed the revolver, that fact standing alone is not sufficient to support a finding beyond a reasonable doubt that defendant obliterated the numbers. Since there was no evidence, other than circumstantial evidence of possession, that defendant obliterated the identifying numbers on the revolver, the erroneous instruction cannot be found harmless beyond a reasonable doubt and the conviction on [the obliteration of identifying numbers count] must be reversed.” (People v. Wandick, supra, at p. 925.)
As the jury was improperly instructed on the presumption of obliteration of identification information of a firearm; the evidence in this case is insufficient to support defendant’s conviction on count 3, the count charging him with obliterating the identification information of a firearm; and, he was only convicted on that charge; the judgment must be reversed and defendant may not be retried on that charge. We need not and do not reach defendant’s remaining contentions.
DISPOSITION
The judgment is reversed.
WE CONCUR: MIHARA, J., McADAMS, J.