The possession of a gun by a fellow gang member occupying the same motel room does not equate to possession by a felon based on constructive possession. Officers went to a motel room rented by Sifuentes who had a “no-bail” parole arrest warrant. Another occupant of the room, a fellow gang member Lopez, was located next to a mattress which concealed a loaded handgun. The gun was not tested for DNA or fingerprints. At trial, a gang expert testified about the prominent role that guns play in the gang subculture: a “gang gun” is passed among members for their criminal endeavors; gang members inform others if they possess a firearm because it garners respect and it warns members who may have penal consequences based on probation or parole. No direct evidence tied the particular gun in this case to other gang members or indicated that it had been used by the gang. There was insufficient evidence to support Sifuentes’ conviction for being a felon in possession of the firearm based on the doctrine of constructive possession. There was a failure to prove that he knowingly exercised a right of control over the firearm, either directly or through another person. Mere proximity, standing alone, is not sufficient evidence of possession.
The failure to bring a motion to suppress does not support a claim of ineffective assistance of counsel in this case. Defense counsel was not asked for an explanation, but he reasonably may have concluded that such a motion was unlikely to succeed. A review of the record indicates there was an arrest warrant for Sifuentes who was on parole. Payton v. New York (1980) 445 U.S. 573, 602-603, holds an arrest warrant carries with it the authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. The motel manager testified at trial that identification and a credit card are required to rent a room. Sifuentes was the registered guest in the room. The officers did not receive a response to their announcement, but heard movement in the room from which it was reasonable to assume that he was in the room.
The complete failure to obtain a waiver of jury trial and a waiver of other constitutional rights requires reversal of the strike allegation and the prior prison term allegations. The defense motion to bifurcate the trial on the priors from the remaining charges was granted at the time defense counsel represented that the defendant intended to admit the allegations. There was no waiver of jury trial at that point. After the jury verdicts on the substantive charges, the court did not advise him of his constitutional rights or obtain waivers. It is a silent record case. It may not be inferred from a totality of the circumstances that the admissions were voluntary and intelligent. People v. Mosby (2004) 33 Cal.4th 353, 359-360, only supports consideration of the defendant’s prior experience with the criminal system in cases with incomplete advisements. The reversal would not bar a retrial of the prior conviction allegations.