RICHLI, J.
A jury found defendant and appellant Manuel Loera Garcia guilty of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a); count 1); being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1); count 2); possession of methamphetamine while armed with a loaded, operable firearm (Health & Saf. Code, § 11370.1; count 3); being a felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1); count 4); and transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a); count 5). The jury also found true that defendant had suffered one prior prison term. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to a total term of five years eight months in state prison.
On appeal, defendant contends (1) the trial court erred in denying his suppression motion; (2) there was insufficient evidence to sustain his conviction on count 3 because the People failed to prove the zip gun was operable; and (3) the court security fee and conviction assessment fee were incorrectly calculated. We agree with the parties that the court security and conviction assessment fees must be modified. We reject defendant's remaining contentions.
Following are the general facts describing the incident. The facts specifically related to defendant's claims of error will be discussed in more detail in part II, post.
On June 5, 2008, about 12:45 a.m., Riverside County Sheriff Deputies Ismael Celaya and Shaun Hughes were on patrol in La Quinta when they stopped a vehicle with two occupants inside. Defendant was the passenger. During the vehicle stop, Deputy Celaya searched defendant and found a glass methamphetamine pipe, a canister of methamphetamine, and a live .22-caliber round of ammunition in his pockets. A search of the vehicle revealed a loaded zip gun in a bag that had been on the front floorboard between defendant's feet. Defendant admitted that the bag belonged to him.
Defendant contends the trial court erred in denying his suppression motion because the patdown search and the search of his bag were illegal. We disagree.
At the hearing on the suppression motion, Deputy Celaya testified that he and his partner, Deputy Hughes, were on patrol in an unmarked "stealth" car on June 5, 2008, about 12:45 a.m., when they observed a car rolling through a stop sign without stopping. The officers conducted a traffic stop of the vehicle and contacted the occupants. Defendant was the passenger. While Deputy Celaya spoke with defendant, his partner contacted the driver. Deputy Celaya noticed a lunch-type bag on the floorboard between defendant's feet. In response to Deputy Celaya's query, defendant stated the lunch bag belonged to him.
The deputies obtained identifying information for defendant and the driver. Deputy Celaya learned through dispatch that defendant had prior police contacts for weapons possession.
After defendant exited the vehicle, Deputy Celaya asked defendant if he had any weapons on his person. Defendant replied in the negative and refused to give the deputy consent to search his person. Deputy Celaya believed that defendant might have weapons on his person, and therefore he conducted a patdown search for officer safety. During the patdown search, Deputy Celaya found a glass methamphetamine pipe in defendant's pocket and placed him under arrest for possession of drug paraphernalia. Following defendant's arrest, Deputy Celaya conducted a further search of defendant's person incident to arrest. The search revealed a live .22-caliber round in defendant's pocket as well as a canister containing a substance that looked like methamphetamine.
After defendant's arrest, Deputy Celaya's partner searched the vehicle. The lunch bag that was on the floorboard contained a loaded zip gun, or a firearm made out of a cylinder with a spring-activated firing pin. The live round in the zip gun matched the .22-caliber round that defendant had in his pocket.
Following arguments from counsel, the trial court denied the suppression motion. In regard to the patdown search, the court found the deputy had reasonable suspicion to believe defendant was armed, based on the time of the stop, the fact that either defendant or the driver had prior weapons contacts, and defendant's appearance of defiance. In regard to the search of defendant's lunch bag, the court determined that it was a proper search incident to defendant's arrest.
In reviewing the denial of a motion to suppress evidence, we defer to the trial court's express or implied factual findings where supported by the evidence and exercise our independent judgment in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) "The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. . . . [I]t becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (People v. Lawler (1973) 9 Cal.3d 156, 160, fn. omitted.)
The Fourth Amendment to the United States Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ." However, "[t]he Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." (Florida v. Jimeno (1991) 500 U.S. 248, 250 [111 S.Ct. 1801, 114 L.Ed.2d 297].)
The Fourth Amendment prohibits seizures of persons, including brief investigative detentions, when they are "`unreasonable.'" (People v. Souza (1994) 9 Cal.4th 224, 229.) In order to pass constitutional muster, a detention must be "based on `some objective manifestation' that criminal activity is afoot and that the person to be stopped is engaged in that activity." (Id. at p. 230.) Thus, as specific to a vehicle stop, "a police officer can legally stop a motorist only if the facts and circumstances known to the officer support at least a reasonable suspicion that the driver has violated the Vehicle Code or some other law." (People v. Miranda (1993) 17 Cal.App.4th 917, 926.) Here, it is undisputed that Deputy Celaya lawfully stopped defendant for failing to stop at a stop sign.
Warrantless searches, although usually per se unreasonable, are considered reasonable in various contexts. (Katz v. United States (1967) 389 U.S. 347, 357 [88 S.Ct. 507, 19 L.Ed.2d 576].) The warrantless search of an automobile, for instance, can be justified on a variety of grounds, among them: (1) probable cause to believe the car contains contraband (Carroll v. United States (1925) 267 U.S. 132, 149 [45 S.Ct. 280, 69 L.Ed. 543]); (2) the search is incident to the arrest of an occupant of the vehicle (New York v. Belton (1981) 453 U.S. 454, 460 [101 S.Ct. 2860, 69 L.Ed.2d 768]); and (3) the search is part of the inventory of a lawfully impounded vehicle (South Dakota v. Opperman (1976) 428 U.S. 364, 375-376 [96 S.Ct. 3092, 49 L.Ed.2d 1000]).
Under the automobile exception to the Fourth Amendment's prohibition against warrantless searches, a vehicle, because of its mobility, may be searched without a warrant when police have probable cause to believe it contains contraband. (Maryland v. Dyson (1999) 527 U.S. 465, 466-467 [119 S.Ct. 2013, 144 L.Ed.2d 442].) If probable cause exists, there is no separate exigency requirement for the automobile exception to apply. (Pennsylvania v. Labron (1996) 518 U.S. 938, 940 [116 S.Ct. 2485, 135 L.Ed.2d 1031].) The People need not demonstrate that the vehicle was likely to be moved, and the reasonableness of the search is unaffected by whether the defendant was taken into custody. (See People v. Superior Court (Overland) (1988) 203 Cal.App.3d 1114, 1119-1120.)
On the issue of traffic detentions, the United States Supreme Court has recently stated: "A lawful roadside stop begins when a vehicle is pulled over for investigation of a traffic violation. The temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. [Citation.] An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the stop's duration." (Arizona v. Johnson (2009) ___ U.S. ___ [129 S.Ct. 781, 788, 172 L.Ed.2d 694].)
Once a law enforcement officer has conducted a valid traffic stop, as occurred here, the officer may pat down the driver or passenger for weapons if the officer "harbor[s] reasonable suspicion that the person subjected to the frisk is armed and dangerous." (Arizona v. Johnson, supra, 129 S.Ct. at p. 784; see also People v. Osborne (2009) 175 Cal.App.4th 1052, 1059.) In reiterating this rule, the United States Supreme Court in Johnson recognized that traffic stops are "`especially fraught with danger to police officers.'" (Johnson, at p. 786.) "`When an officer is justified in believing that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others,' the officer may conduct a limited patsearch `to determine whether the person is in fact carrying a weapon.'" (Osborne, at p. 1059.) The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent person in the circumstances would be warranted in the belief that his or her safety or that of others was in danger. (Terry v. Ohio (1968) 392 U.S. 1, 27 [88 S.Ct. 1868, 20 L.Ed.2d 889].) "[I]n determining whether the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or `hunch,' but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience." (Ibid.) The officer's subjective good faith is not enough. (Id. at p. 22.)
In this case, Deputy Celaya and his partner conducted the traffic stop about 12:45 a.m. Deputy Celaya testified that defendant was being "indifferent," essentially unresponsive, and did not want to talk to or answer his questions. His testimony permits an inference that defendant was acting in an unusually evasive or nervous fashion when approached. "[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (Illinois v. Wardlow (2000) 528 U.S. 119, 124 [120 S.Ct. 673, 145 L.Ed.2d 570].) Moreover, the deputies were aware that at least one of the occupants of the vehicle had prior weapons contacts with police. That defendant initially refused to exit the vehicle when asked to do so by Deputy Celaya is a further fact that would lead a reasonable officer to believe that defendant was attempting to conceal something. These observations and the entirety of the circumstances caused the deputy to be concerned for his safety. All of the these facts, combined with the time of night and the fact that the deputy was aware that either defendant or the driver had prior weapons contacts, gave Deputy Celaya a basis to reasonably conclude defendant might have a weapon in his possession and thus justified his patdown search of defendant out of concern for his safety.
"The judiciary should not lightly second-guess a police officer's decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations." (People v. Dickey (1994) 21 Cal.App.4th 952, 957.) The Fourth Amendment has never been interpreted to "`require that police officers take unnecessary risks in the performance of their duties.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 110 [98 S.Ct. 330, 54 L.Ed.2d 331].) Deputy Celaya's patdown search of defendant did not violate defendant's Fourth Amendment protection from unreasonable searches. We therefore reject defendant's challenge to that search.
Relying on People v. Baker (2008) 164 Cal.App.4th 1152, defendant next asserts that search of his lunch bag was illegal, because it exceeded the scope of the driver's consent, and defendant did not consent to the search of his lunch bag.
Baker is not relevant here. In Baker, the defendant was female and the only passenger in a car driven by a male parolee. (People v. Baker, supra, 164 Cal.App.4th at p. 1156.) After the car was stopped for speeding, the defendant exited the car so that it could be searched pursuant to the driver's parole search condition. The defendant had been sitting in the front passenger seat with her purse at her feet; she left her purse behind when she exited the car. After nothing was found in the car, the purse was searched, and methamphetamine was found in a tinfoil packet located inside a pocket. (Ibid.) The Baker court held that "there could be no reasonable suspicion that the purse belonged to the driver, that the driver exercised control or possession of the purse, or that the purse contained anything belonging to the driver." (Id. at p. 1159.) The Baker court determined that the validity of the search of an item, potentially belonging to someone not themselves subject to a search condition but riding in a vehicle with someone who was, is determined by "whether there is joint ownership, control, or possession over the searched item with the parolee or probationer." (Ibid.)
Here, the trial court found that defendant's lunch bag was searched incident to a lawful arrest, rather than based on the driver's consent to search the vehicle. Accordingly, Baker is inapposite.
If the arrest was lawful, the subsequent search of defendant's car was also lawful because, once Deputy Celaya found drug paraphernalia, a substance resembling methamphetamine, and a live round of ammunition on defendant's person, the police had probable cause to search the entire car, including the lunch bag. (United States v. Ross (1982) 456 U.S. 798, 809 [102 S.Ct. 2157, 72 L.Ed.2d 572] [under "automobile exception" to the Fourth Amendment's warrant requirement, a "search is not unreasonable if based on facts that would justify the issuance of a warrant, even though a warrant has not actually been obtained"]; Arizona v. Gant (2009) ___ U.S. ___ [129 S.Ct. 1710, 1721, 173 L.Ed.2d 485] (Gant) ["[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821, 1025 S.Ct. 2157, 72 L.Ed.2d 572 (1982), authorizes a search of any area of the vehicle in which the evidence might be found"]; People v. Chavers (1983) 33 Cal.3d 462, 466 [under Ross, "police officers who lawfully stop a vehicle, having probable cause to believe that contraband is located or concealed somewhere therein, may conduct a warrantless search of the vehicle that is as thorough (as to location and type of container searched) as that which a magistrate could authorize by warrant"]; People v. Panah (2005) 35 Cal.4th 395, 469 [same].)
A police officer may make a misdemeanor custodial arrest when the officer has "probable cause to believe that the person to be arrested has committed a public offense in the officer's presence." (Pen. Code, § 836, subd. (a)(1); see Atwater v. City of Lago Vista (2001) 532 U.S. 318 [121 S.Ct. 1536, 149 L.Ed.2d 549] [Fourth Amendment does not forbid custodial arrest for a fine-only misdemeanor]; People v. McKay (2002) 27 Cal.4th 601 [same].) "Probable cause . . . exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft (2000) 23 Cal.4th 978, 1037.)
Defendant does not dispute that there was sufficient probable cause to arrest him for possession of drug paraphernalia or ammunition. (Indeed, he makes no mention of this conclusion by the trial court.) In Gant, supra, 129 S.Ct. 1710, the United States Supreme Court recently held that the "[p]olice may search a vehicle incident to a recent occupant's arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest." (Gant, supra, 129 S.Ct. at p. 1723.)
The United States Supreme Court disapproved a broad reading of New York v. Belton (1981) 453 U.S. 454 [101 S.Ct. 2860, 69 L.Ed.2d 768] (Belton) and clarified the application of Thornton v. United States (2004) 541 U.S. 615 [1245 S.Ct. 2127, 158 L.Ed.2d 905]). The majority in Gant explained, "Belton does not authorize a vehicle search incident to a recent occupant's arrest after the arrestee has been secured and cannot access the interior of the vehicle;" however, consistent with Thornton, "circumstances unique to the automobile context justify a search incident to arrest when it is reasonable to believe that evidence of the offense of arrest might be found in the vehicle." (Gant, supra, 129 S.Ct. at p. 1714.)
As explained previously, searches conducted without a warrant are per se unreasonable under the Fourth Amendment except for a few well-delineated exceptions. (Gant, supra, 129 S.Ct. at p. 1716.) One of these exceptions is a search incident to a lawful arrest, which must be based on concerns for officer safety and evidence preservation. (Ibid.; Chimel v. California (1969) 395 U.S. 752, 762-763 [89 S.Ct. 2034, 23 L.Ed.2d 685].)
Belton considered the application of Chimel in the context of an automobile search. (Belton, supra, 453 U.S. at p. 460.) Belton held that "when an officer lawfully arrests `the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile' and any containers therein." (Belton, supra, 453 U.S. at p. 460.) Gant rejected the prevalent broad reading of Belton as authorizing a vehicle search incident to every recent occupant's arrest because it would divorce the rule from the justifications underlying the Chimel exception. (Gant, supra, 129 S.Ct. at p. 1719.) Gant therefore held that "the Chimel rationale authorizes police to search a vehicle incident to a recent occupant's arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (Ibid., fn. omitted.)
Gant recognized, however, that, consistent with Thornton, police must be able to search a vehicle incident to a lawful arrest when it is "`reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.'" (Gant, supra, 129 S.Ct. at p. 1719.) Gant noted although this exception is not grounded in the rationale of Chimel, the unique circumstances of the vehicle context justify a search incident to arrest in this situation. (Gant, at p. 1719.) In some cases, such as Belton and Thornton, the offense for which the occupant is arrested supplies a justification for searching the passenger compartment of the vehicle and any containers police find within it. (Gant, at p. 1719.)
Defendant's is just such a case. After Deputy Celaya lawfully conducted a patdown search of defendant's person and found drug paraphernalia, methamphetamine, and ammunition, defendant was lawfully arrested. The car, including defendant's lunch bag found on the passenger floorboard, was thereafter searched incident to the lawful arrest. The officers in this case clearly had a reasonable belief that "evidence of the offense of arrest might be found in the vehicle." (Gant, supra, 129 S. Ct. at p. 1714.) The vehicle may have contained additional ammunition, firearm, or other contraband.
The recent decision in Osborne is instructive. In that case, after the officers reasonably detained the defendant near his vehicle, they lawfully performed a patdown search and located a loaded firearm in his pocket. (People v. Osborne, supra, 175 Cal.App.4th at p. 1062.) The defendant was arrested for being a felon in possession of a firearm. Incident to that arrest, the officers searched the defendant's vehicle and found drugs. (Ibid.) Following an analysis of the Gant decision, the Osborne court concluded that the officers had reason to believe the car might contain evidence relating to the illegal possession of a firearm arrest. (Id. at pp. 1063-1065.) The court stated: "Here, when Officer Malone found the firearm on defendant's person, he had probable cause to arrest him for illegal possession of a firearm and could then conduct a search incident to his arrest. Given the crime for which the officer had probable cause to arrest (illegal possession of a firearm), it is `"reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle."' [Citation.] Unlike simple traffic violations, which the court in Gant specifically noted may provide no reasonable basis for believing the vehicle contains relevant evidence, illegal possession of a firearm is more akin to possession of illegal drugs, which would provide such a reasonable belief. [Citation.] Although the firearm found on defendant was loaded, it was reasonable to believe that the vehicle might contain additional items related to the crime of gun possession such as more ammunition or a holster." (Id. at p. 1065, fns. omitted.)
As noted by our colleagues in People v. Osborne, supra, 175 Cal.App.4th at page 1065, "[t]he Gant court specifically requires only a `reasonable basis to believe' the vehicle contains relevant evidence, a standard less than full probable cause. [Citation.]" Accordingly, we conclude that the search of defendant's lunch bag was lawful. The trial court therefore properly denied the motion to suppress evidence.
Defendant also contends that there was insufficient evidence to sustain his conviction for possession of a firearm. Specifically, he maintains that the evidence was insufficient to support the jury's conclusion that the zip gun was an operable firearm. He insists that the prosecution was required to prove that the zip gun was actually capable of firing a bullet and argues that, because there was no evidence that the zip gun was test-fired or could successfully be fired, the prosecution necessarily failed to prove that the zip gun was operable within the meaning of Health and Safety Code section 11370.1.
Deputy Celaya testified that he had received training in the mechanics of firearms during his 13 years as a police officer and three years in the United States Army. He generally explained how firearms operate and described zip guns. He explained that a zip gun is a "crudely made gun that you place a live ammunition, a bullet or round, in the barrel and . . . it has a nail or a metal spike. [I]t's spring-loaded, or it can . . . just have a nail or metal spike attached to the rear of it. [Y]ou recoil it back and let it go forward. [I]t strikes the back plate of a live round." He also noted that zip guns are common in the prison system and that he was generally familiar with them from the time he spent working as a correctional officer in jails.
Deputy Celaya explained that the zip gun found in defendant's lunch bag was loaded with a live .22-caliber round. The live round was removed for safety purposes. In detail, with the use of photographs, he described the characteristics and mechanics of defendant's zip gun, clarifying how the gun could be used to fire a projectile while pointing out the firing pin on the zip gun. Specifically, he stated, "As you can tell, it's called a firing pin. You can see how it's protruding right there. . . . [Y]ou . . . pull the pin back. . . . [T]he person pulls it back and lets it go forward. What happens is that metal pin strikes the back of that round or bullet, and the projectile goes out towards the barrel there on that end." Deputy Celaya also explained the different parts of defendant's zip gun and how they worked. He concluded that the zip gun found in defendant's bag was operable. The deputy stated, "That's based on the fact that the striker plate in the back, it was flush. There was no indentation. And the fact that the way the mechanism of the zip gun, the way it looks and the way it can be used, and the training and experience that I have had in the military and the training that I have had in the Corrections division, all the stuff that the inmates can bring in or use as a weapon."
On cross-examination, defense counsel attempted to discredit Deputy Celaya's testimony. Deputy Celaya admitted that he was not an expert in firearms, that he had not tested the zip gun, and that this was the first time he had seen an actual zip gun. He explained that the zip gun was not tested for safety reasons. He further stated that even the Department of Justice (DOJ) would not test it, because it is not a safe weapon and the "unsurety of it." In response to defense counsel's question of whether the zip gun "might not be operable," Deputy Celaya responded, "I think it would still be operable. Given the facts of what's there, it could still be operable, in my opinion."
Deputy Hughes testified that he had been a peace officer for five years and that during that time he had received training in the mechanics of firearms. He explained generally how firearms operate and generally described what a zip gun was and how it worked. He had seen a zip gun during his training. By using photographs of the zip gun seized from defendant, Deputy Hughes in detail explained how the zip gun would be used to fire a projectile and pointed out the location of the firing pin, the ammunition chamber, and the barrel out of which the projectile would come. He explained how the firing pin could be pulled back and then spring forward to strike the primer on a round of live ammunition, which would cause the bullet or projectile to come out of the barrel. Deputy Hughes also concluded that the zip gun seized from defendant was operable.
On cross-examination, Deputy Hughes admitted that he did not test the zip gun, that he had "no reliable training or experience or the weapon wasn't tested to find out whether it was operable or not," and that he did not know whether the zip gun was operable or not. On re-direct, Deputy Hughes explained that although he did not have specific firearms expertise training, he did have general training in regard to firearms, and notwithstanding his concession on cross-examination, he was still of the opinion that the zip gun seized from defendant was operable. He based his opinion on the fact that live ammunition was loaded in the chamber of the zip gun, the zip gun contained a barrel, the bullet was screwed inside the chamber, it contained all the functional components of a firearm, and it had a firing pin. He also noted that after checking with the DOJ, the DOJ stated they would not test the zip gun seized from defendant.
"In reviewing a claim [regarding the] sufficiency of the evidence, we must determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence — that is, evidence that is reasonable, credible, and of solid value — supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.]" (People v. Jennings (2010) 50 Cal.4th 616, 638-639.)
Health and Safety Code section 11370.1 "created a new felony," which requires proof not only of possession of a controlled substance, but also proof the defendant was armed with a loaded, operable firearm while in possession of the controlled substance. (People v. Pena (1999) 74 Cal.App.4th 1078, 1082.) In relevant part, the statute provides that "every person who unlawfully possesses any amount of a substance . . . containing methamphetamine . . . while armed with a loaded, operable firearm is guilty of a felony . . . ." (Health & Saf. Code, § 11370.1, subd. (a).) Knowledge that the specified weapon is loaded and operable is not an element of the crime. (People v. Heath (2005) 134 Cal.App.4th 490, 498.) "The question[s] of whether or not the gun was loaded [and operable are] question[s] for the jury, and the prosecution can establish it by circumstantial evidence. [Citation.]" (People v. Orr (1974) 43 Cal.App.3d 666, 672.) In other words, direct evidence is not required in order for a jury to properly find that a weapon was loaded and operable.
Defendant complains the police never checked or test-fired the zip gun to make sure it was operable. However, defendant's insistence on direct evidence of operability is misguided; as noted above, "[c]ircumstantial evidence may constitute substantial evidence of guilt." (People v. Catlin (2001) 26 Cal.4th 81, 142.) In People v. Smith (1974) 38 Cal.App.3d 401, 410, the court specifically rejected the need for direct evidence of operability, concluding: "The circumstantial evidence that the weapon was operable was more than sufficient: Defendant was armed with a shotgun during the robbery. When he was arrested, a loaded shotgun and additional shotgun shells were found in the vehicle in which he was riding. A jury could easily infer that defendant would not have carried a loaded shotgun with additional shells, if the weapon were inoperable."
As in Smith, a jury could easily infer in this case that the loaded zip gun would not be in defendant's possession unless it was operable. A live .22-caliber round was found in the zip gun as well as in defendant's pocket. Additionally, the evidence of the zip gun's operability adduced at trial included the deputy's testimony about the mechanics and components of the zip gun seized from defendant and how it would be used to fire a projectile. The deputies also testified that the zip gun was loaded and operable and pointed out the location of the firing pin, the ammunition chamber, and the barrel of the gun. The deputies also explained how the zip gun could be fired.
This evidence of the zip gun's operability was "`reasonable, credible, and of solid value . . . .'" (People v. Mayfield (1997) 14 Cal.4th 668, 767.) It represented more than the deputies' mere speculation. Their testimony was based on their respective close observations of the zip gun and their experience in law enforcement. Though neither Deputy Celaya nor Deputy Hughes was qualified as a firearms expert for the purposes of the trial, each had sufficient experience in law enforcement from which jurors could reasonably deduce each had experience in recognizing whether a firearm was operable.
But additional evidence further supported a finding that the gun was operable: First, the zip gun was loaded with a live . 22-caliber round. Second, a live .22-caliber round was found in defendant's pocket. The fact that the zip gun was loaded was very strong evidence that it was operable, particularly when combined with testimony about the mechanics and components of the zip gun.
Accordingly, the jury's conclusion that the zip gun was operable based on the evidence before it was logical and reasonable. There was no error.
Defendant contends, and the People correctly concede, that the court security fee and conviction assessment fee were incorrectly calculated. We also agree.
The trial court here imposed a court security fee of $180 under Penal Code section 1465.8, subdivision (a)(1), calculated at $30 per conviction. The court also imposed a conviction assessment fee of $180 under Government Code section 70373, calculated at $30 per conviction. The total amount was calculated based on defendant being convicted of six counts. However, defendant was convicted of only five counts. Accordingly, the court security fee and the conviction assessment fee should be reduced to $150 from $180.
The judgment is modified to reduce both the court security fee and the conviction assessment fee to $150 from $180. The trial court is directed to amend the minute order of April 30, 2010, and the abstract of judgment to reflect the modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) The judgment as thus modified is affirmed.
RAMIREZ, P.J. and KING, J., concurs.
