(Super. Ct. No. 62-78964B)
The opinion of the court was delivered by: Butz , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Julian Omar Guerra was convicted by a jury of four counts of importing or transporting an assault weapon in violation of Penal Code section 12280, subdivision (a)(1)*fn1 (counts two through five), conspiracy to import or transport an assault weapon (§§ 182, subd. (a)(1), 12280, subd. (a)(1)--count one), importing a large-capacity magazine (§ 12020, subd. (a)(2)--count six) and carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)--count seven). The trial court sentenced him to seven years four months in state prison, but suspended execution of sentence and placed him on felony probation for five years.
Defendant appeals claiming insufficiency of the evidence and instructional error. He also seeks additional presentence custody credit. We shall grant him the additional credit, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On March 29, 2008, special agents for the California Department of Justice (DOJ) Bureau of Firearms were present at a gun show at the Grand Sierra Casino in Reno, Nevada. The agents were watching for people who might be illegally transporting assault weapons into California. Defendant and Tony Eugene Goodspeed*fn2 were observed entering the gun show together. Goodspeed carried two long rifles into the show. Subsequently, both men were seen inside the casino carrying AK-47-style rifles (which are illegal in California) slung over their shoulders. About two hours later, Goodspeed manipulated*fn3 what appeared to be an AR-15- or AR-10-style assault rifle, while defendant stood nearby.
Goodspeed left the gun show with a man later identified as Kevin Wise of Rancho Cordova. The men walked over to a green Subaru registered to Wise and bearing California license plates. They approached a third man, later identified as Nevada resident, William Cunningham. Cunningham opened the trunk of his BMW (with Nevada license plates) and took out two military-style assault rifles that appeared to be of a type illegal in California. After handling the rifles, Goodspeed and Wise put one of them--an AR-type rifle--in the rear of the Subaru and returned to the gun show. Inside the show, Goodspeed and defendant spoke to an older man who had a nylon bag that appeared to hold a handgun. Defendant took out a thick stack of cash and handed some of it to Goodspeed, who gave it to the older man in exchange for the bag.
Following this transaction, defendant, Goodspeed and Wise were seen at the green Subaru in the parking lot. Defendant got into a gold-colored Suburban, bearing California license plates, and drove it next to the Subaru. After engaging in conversation with the other two men, defendant took several plastic bags and an AK-47-style rifle out of the Subaru and put them in the rear of the Suburban. The Suburban was registered to defendant's mother in Alameda at the same address defendant gave for himself at the time he was booked.
As defendant and Goodspeed drove away from the gun show in the Suburban, they were tracked by the DOJ agents. The suspects first stopped at a gas station for fuel, then Wal-Mart, and then dined at a local restaurant. Afterwards, they drove out to a desolate area near Pyramid Lake. Due to darkness and the rural area, the agents were unable to see what the men were doing, but they heard several rounds of rapid gunfire coming from the vicinity.
Defendant and Goodspeed then returned to Reno where they circumnavigated the downtown area, making a series of U-turns. The Suburban then headed westbound on Interstate 80 across the California border into Placer County, where California Highway Patrol officers initiated a felony stop.
A search of defendant's person yielded a Glock .40-caliber semiautomatic handgun with a fully loaded magazine; neither the Glock nor any other firearm in the vehicle was registered to defendant. Officers searching the Suburban found four assault-style weapons: two AK-47-type assault rifles similar to the ones that defendant and Goodspeed were carrying at the gun show; a Colt AR-15 assault rifle; and an Eagle Arms AR-10 assault rifle. The two men had no permits for the weapons and none was registered in California. In addition, officers discovered several high-caliber magazines suitable for the assault weapons that were in the vehicle.
After being handcuffed and asked to identify himself, defendant pointed to a wallet that Goodspeed had thrown on the ground. The wallet contained a badge with the title "Ambassador-Diplomat." It identified Goodspeed as a "Diplomatic Agent" and stated, "'Do not delay, detain, or arrest for any offense, [citations].'" Defendant was later found in possession of the same identification badge. It was later determined that the diplomatic badges were ordered from an Internet company. Defendant was also carrying a "bundle" of cash totaling $4,500.
Prosecution expert Blake Graham testified that assault weapons that are illegal in California are classified either by certain makes or models, or by generic characteristics. Those of the latter type are "Category 3" weapons. To qualify as a Category 3 assault weapon, it must have four characteristics: (1) it must be semiautomatic; (2) it must discharge "centerfire" ammunition; (3) it must have a detachable magazine; and (4) it must have a pistol grip. All four assault weapons that defendant was charged with transporting had these characteristics.*fn4 On cross-examination, Graham stated that it would certainly be helpful to handle and examine a weapon to determine whether it had the four characteristics that made them illegal. Whether a gun is semiautomatic is the biggest factor in weapons purchases, but Graham could tell within a minute of a visible inspection whether a gun was semiautomatic.
The defense presented no evidence.
I. Sufficiency of the Evidence to Support the Conspiracy Conviction
Defendant first contends there was no substantial evidence to support his conviction for conspiracy to import or transport assault weapons. He points out that there was no evidence that he handled the firearms in such a manner as to make him aware of their characteristics as assault weapons, that he had ever ...