P. v. Berhe CA1/2 filed 8/19/26

Filed 8/19/26 P. v. Berhe CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
v.
AMAN TESFAY BERHE,
Defendant and Appellant.

A173123

(Sonoma County
Super. Ct. No. 24CR04670)

On June 4, 2024, defendant Aman Berhe approached two men eating lunch on a bike trail in Santa Rosa, told them “shut up [or] I’ll kill you, motherfucker,” and held them at gunpoint for several minutes before walking away. After being shown a single photo by the police at the scene, both men identified Berhe as their assailant. Later that afternoon, Berhe was arrested at his nearby storage unit, which was found to contain ammunition and methamphetamine. Several days after that, police discovered that the door to an adjacent storage unit had been forced open and a loaded firearm left just inside.
In January 2025, Berhe was tried by jury and found guilty of two counts of assault with a semiautomatic firearm, criminal threats, unlawful possession of a controlled substance while armed,possession of a firearm by a felon, possession of ammunition by a felon, and misdemeanor possession of methamphetamine. The trial court sentenced Berhe to 19 years in prison on the first six counts, but neglected to pronounce sentence on the seventh. Berhe argues that the single-photo identification procedure used by police was unduly suggestive and unreliable,and that the evidence was insufficient to support his convictions for possession of a firearm and possession of a controlled substance while armed. We requested supplemental briefing on the failure to pronounce a sentence on the seventh count and the parties agree that such failure was error requiring remand. We thus affirm the judgment of conviction, but vacate the sentence and remand for a full resentencing.
BACKGROUND
The Bike Trail Incident
On June 4, 2024, Angel P.–S. and Elki P. were eating lunch on a bike trail in Santa Rosa. As they did so, a man they did not knowwalked past them while“talking to himself,” and then stopped about 10 feet away. The man was wearing a small black backpack across his chest with a “white line” on it. He turned around,took “five steps” back toward Angel and Elki, told them to “shut up,” and then twice “I’ll kill you, mother fucker.” The man then opened the backpack,pulled out a black or gray nine-millimeter firearm, and “cocked it.” Angel and Elki raised their hands over their heads, and the man kept the firearm pointed at them without saying anything for three or four minutes. He then lowered the firearm, tucked it into his pants, and walked away.
The 911 Call and Arrest
Angel and Elki immediately called 911 and spoke to the dispatcher through a Spanish interpreter. They described their assailant as Black; “full of tattoos”; wearing a white shirt, black shorts, and a “black cap”;and carrying a “tiny little backpack . . . close to his chest.” The firearm was gray and “look[ed] like a nine millimeter.”
At 2:24 p.m., Santa Rosa PoliceOfficer Jeff Zuniga responded to the 911 call.Officer Zuniga located Angel and Elki and spoke to them for five or six minutes, during which time they “gave someupdated information regarding face tattoos” and he“putthat out over the radio.” He then returned to his patrol vehicle in order to continue searching for the suspect.
As he was driving away, Officer Zuniga received a call from Officer Vercelli, also of the Santa Rosa Police Department, who had heard the broadcast made in response to the 911 call. Officer Vercelli told Officer Zuniga to “look up Aman Berhe” because he “matched the description,” “has a face tattoo,” and Officer Vercelli had “seen him around the area that week.” Officer Zuniga accessed a governmental photo of Berhe from January 2024, “snapped the photo with [his] department-issued cell phone,” and drove back to Angel and Elki. When Officer Zuniga showed Angel and ElkiBerhe’s photo and asked,“Does that look like him?”, they “became very excited” and said, “Yeah.”
Around 4:45 p.m., Officer Cardenas of the Santa Rosa Police Department called Susan Goodman, the manager of nearby BuxBear Storage, and asked whether Berhe was on the property. Berhe had been renting a storage unit at BuxBear since late February 2024, and Goodman was “[p]retty familiar” with him because he was there “[a]lmost every day.”She“was ableto tell [Officer Cardenas] that, yes, [Berhe] was at the property at thetime.”
Three to five minutes later, Officer Zuniga and severalother officers responded to BuxBear Storage, set up a perimeter around the building containing Berhe’s storage unit, and ordered him to “come out with his hands on top of his head”using the loudspeaker of a patrol vehicle. After what Officer Sergio Cardenas Castillo would later estimate, based on footage from his body-worn camera, was “approximately four minutes,” Berhe exited the building—shirtless—and was placed under arrest. Officers later searched Berhe’s storage unit,where theylocated a black satchel or backpack, a white t-shirt, a plastic baggie containing ten,.40-caliber Smith and Wesson bullets, and another plastic baggiecontaining methamphetamine.
June 12 Discovery of the Firearm
On June 12, Goodman cut the lock off of Alejandro Garcia’s storage unit at BuxBear because Garcia had lost his keys. Garcia’s unitwas directly across the hall from Berhe’s, and according to BuxBear’s records, Garcia had last entered it on May 19.After Goodman cut off the lock, Garcia entered his unit and immediately found a silver and black nine-millimeter pistol “directly on the ground, right in front of the door.” Goodman shut Garcia’s unit and called 911.
Officer Zuniga responded to Goodman’s 911 call, and observed that the door to Garcia’s unit—which was “[v]ery flimsy”—had been “pulled apart” on the hinge side. Officer Zuniga retrieved the pistol and determined that it was loaded and “ready to fire,” with four rounds in the magazine and one in the chamber.
The Charges
On June 6, the Sonoma County District Attorney filed a complaint, and on December 13, the operative first amended information, charging Berhe with two counts of assault with a semiautomatic firearm (Pen. Code, §245, subd. (b)) (counts 1 and 2), criminal threats (§422, subd. (a)) (count 3), possession of a controlled substance while armed with a firearm (Health & Saf. Code, §11370.1, subd. (a)) (count 4), possession of a firearm by a felon (§29800, subd. (a)(1)) (count 5), possession of ammunition by a felon (§30305, subd. (a)(1)) (count 6), andmisdemeanor possession of a controlled substance, to wit, methamphetamine (Health & Saf. Code, §11377, subd. (a)) (count 7). With respect to counts 1, 2, and 3, the information alleged that Berhe had personally used a firearm during the commission of the offenses (§12022.5, subd. (a)). The information also alleged tencircumstances in aggravation pursuant to California Rules of Court, rule 4.421.
The MotionsChallenging the Photo Identification
At the preliminary hearing held on August 1, both Angel and Elki identified Berhe as their assailant.
On August 28, Berhe moved to set aside the then-operative complaint pursuant to section 995, arguing that Angel and Elki’s in-court identification at the preliminary hearing was the product of an unduly suggestive out-of-court identification procedure because Officer Zuniga had showed Angel and Elki only a singlephotograph.
On September 5, the prosecution filed opposition to the motion, and after a hearing on October 3, the trial court denied it. While acknowledging that Officer Zuniga had not followed the “ideal procedure,” the trial court observed that Angel and Elki’s descriptions of their assailantduring their 911 call, and when speaking to Officer Zuniga, were “consistent” with Berhe’s;that the incident took place in the middle of the afternoon,withboth victims able to observe their assailant for several minutes;that both men testified that they “hadn’t made up their mind prior to seeing the photograph”; and that both “identified Mr. Berhe in court unequivocally.”
On December 13, as one of his motions in limine, Berhe moved to exclude Angel and Elki’s in-and out-of-court identifications for the same reasons given in his motion to set aside the complaint. The trial court denied the motion, concluding that the jury could consider the identifications, not for their truth, but in order to explain law enforcement’s subsequent conduct; that the alleged procedural error in the identification procedure went to the identification’s weight, not its admissibility; and that defense counsel would be given “wide latitude” to conduct cross-examinationwith respect to the identification procedure.
The Trial, Verdict, and Sentence
Trial took place on January 7, 8 and 9, 2025, and included the testimony of Angel, Elki, Susan Goodman, and Officer Zuniga, some of which we have already described. The defense did not present any evidence. After deliberating for the better part of two days, the jury found Berhe guilty as charged on all seven counts and found true the charged firearm enhancements.
On February 11, a court trial was held on certain of the aggravating circumstances, at the conclusion of which the trial court found three of those factors true. (See Cal. Rules of Court, rule 4.421(b)(2), (3), & (4).)
On April 2, the trial court sentenced Berhe to an aggregate term of 19 years in prison, comprised as follows: the nine-year upper term on count 1, followed by a consecutive 10-year term on the firearm enhancement; the middle term of six years on count 2, followed by a consecutive four-year term on the firearm enhancement; the middle term of twoyears on count 3, followed by a consecutive four-year term on the firearm enhancement; the middle term of three years on count 4; and two-year middle terms on each of counts 5 and 6, imposed and stayed pursuant to section 654.
Berhe filed a notice of appeal.
DISCUSSION
Admission of the Out-of-Court Identification Did Not Violate
Due Process
Applicable Law and the Standard of Review
In People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 768 (Holmes),our Supreme Court explained the applicable law as follows: “To determine whether the admission of identification evidence violates due process, ‘we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.’....’”’A procedure is unfair if it suggests in advance the identity of the person police suspect.(People v. Ochoa (1998) 19 Cal.4th 353, 413 (Ochoa).)”
“‘If, and only if, the answer to the first question is yes and the answer to the second question is no, is the identification constitutionally unreliable.’” (Ochoa, supra, 19 Cal.4th at p. 412.) In other words, “‘if the indicia of reliability are strong enough to outweigh the corrupting effect of the police-arranged suggestive circumstances, the identification evidence ordinarily will be admitted, and the jury will ultimately determine its worth.’” (People v. Wilson (2024) 16 Cal.5th 874, 901, quoting Perry v. New Hampshire (2012) 565 U.S. 228, 232.)
The defendant bears the burden of showing an identification procedure was unreliable. (Ochoa, supra, at p. 412; People v. Avila (2009) 46 Cal.4th 680, 700.) And where, as here, the historical facts are not in dispute, we independently review the trial court’s determination as to whether the identification was admissible. (Holmes, supra, 12 Cal.5th at p. 768; People v. Wilson, supra, 16 Cal.5th at p. 901; People v. Sanchez (2019) 7 Cal.5th 14, 36.)
Berhe Has Failed to Demonstrate that the Photo Identification
Was Unreliable Under the Totality of the Circumstances
Berhe’s argument begins by asserting that the photo identification procedure used here was unduly suggestive because Officer Zuniga “used asingular close-up screenshot of a booking photo . . . and asked, ‘Does that looklike him?’” He relies on section 859.7—requiring law enforcement agencies to adopt regulations for conducting photo lineups that comply with certain statutorily-enumerated best practices—noting that Officer Zuniga did not “separate the witnesses, have them take muchtime to examine the photo, nor ask another officer to assist with theidentification process.”He acknowledges that “showing [a witness] a single photograph” is “not necessarily unfair” (People v. Sanchez,supra, 7 Cal.5th at p. 36),but somewhat sidewise suggests that doing so requires a showing of exigent circumstances,and then suggests that no such circumstances were present.Finally, he asserts that Angel and Elki’s degree of attention “was divided by Elki being on the phone . . . and the stress of the scene in general,” going on to point out minor inconsistencies in their trial testimony regarding Berhe’s description and the details of the incident. We are not persuaded.
To begin with, section 859.7 does not avail Berhe, because it expressly provides that “[n]othing in this section is intended to preclude the admissibility of any relevant evidence or to affect the standards governing the admissibility of evidence under the United States Constitution.” (Id., subd. (d).) And even accepting Berhe’s unsupported argument that exigent circumstances were required to justify a single-photo identification, surely they were provided by the prospect of a suspect armed with a semiautomatic weapon, at large on a public bike trail in the middle of the day, holding random members of the public at gunpoint for no apparent reason.
In any event, even assuming that the procedure used here was unduly suggestive and unnecessary, Berhe has failed to demonstrate that it was nevertheless unreliable “considering the totality of the circumstances.”(Holmes, supra, 12 Cal.5th at p. 768.) As the trial court noted, both victims had an “opportunity . . . to view the suspect at the time of the offense” that took place overseveral minutes, in the middle of the afternoon,from only a few feet away. (Ibid.) As for the “degree of [their] attention,” it would appear to have been as undivided as possible given the circumstances—indeed, for several minutes the three men did not say anything, and had every opportunity to observe one another. (Ibid.) Immediately after the incident, Angel and Elki gave a description—of a Black man, “full of tattoos,” wearing a white shirt and black shorts, and carrying a small black backpack “close to his chest”—that was consistent with Berhe’s, as well as with items later found in his storage locker. (Ibid.) Finally, neither witnessdisplayed any uncertainty during the identification of Berhe’s photo, which identification took place less than an hour after the incident.(Ibid.) In sum and in short, we conclude Berhe has failed to demonstrate that the identification was unreliable under the totality of the circumstances, and thus no error appears in its admission.
Substantial Evidence Supports Berhe’s Convictions on Counts 4
and 5
As noted, Berhe’s next argument is that insufficient evidence supports the jury’s guilty verdicts on the counts of possession of a controlled substance while armed and possession of a firearm by a felon (counts 4 and 5).
“‘“In reviewing a challenge to the sufficiency of the evidence, we...‘examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citations.] We presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.]...‘[I]f the circumstances reasonably justify the jury’s findings, the judgment may not be reversed simply because the circumstances might also reasonably be reconciled with a contrary finding.’[Citation.] We do not reweigh evidence or reevaluate a witness’s credibility.”’” (People v. Ramirez (2022) 13 Cal.5th 997, 1117–1118, quoting People v. Houston (2012) 54 Cal.4th 1186, 1215.) And under this standard, we easily reject Berhe’s challenges to the jury’s guilty verdicts on counts 4 and 5.
With respect to possession of a firearm by a felon (§29800, subd. (a)(1)) (count 5), Berhe’s argument is based entirely on his challenge to the evidence identifying him as Angel and Elki’s assailant, as Berhe’s opening brief concedes. Since we have rejected that challenge, Angel and Elki’s further testimony that Berhe pointed a firearm at them for several minutes obviously provides substantial evidence permitting a reasonable jury to conclude that he was in possession of one.
With respect to count 4,possession of a controlled substance while armed with a firearm, the prosecution had to provethat, “[w]hile possessing” methamphetamine, Berhe “had a loaded, operable firearm available for immediate offensive or defensive use.” (CALCRIM No. 2303; see Health & Saf. Code, §11370.1, subds. (a) & (c).)
The first part of Berhe’s argument is that substantial evidence does not support a finding that the firearm with which he threatened Angel and Elki was the same onelater retrieved from Garcia’s storage unit. In support, he notes that he was not connected to the firearm through its serial number, nor through any DNA or fingerprint evidence, and argues that because “[a]nyone with accessto [BuxBear Storage] had access to every interior hallway,” “there was nothing but speculation to support...a finding” that he was the person who had forced Garcia’s door open and placed a firearm inside. Of course, for the purposes of our review the record need not contain any particular type of evidence supporting the jury’s findings (DNA, fingerprint, or otherwise), so long as it is substantial, i.e., “‘reasonable, credible and of solid value.’”(People v. Ramirez,supra, 13 Cal.5th at p. 1117.) And Berhe is simply wrong that there was nothing but speculation connecting him to the firearm recovered from Garcia’s locker—the circumstances of his arrest provide ample substantial evidence supporting that connection.
To briefly summarize, some of that substantial evidence was as follows. Around 4:45 p.m., approximately two and a half hours after holding Angel and Elki at gunpoint, Berhe arrived at BuxBear Storage and entered the building containing hisstorage unit. Presumably unbeknownst to him, the Santa Rosa Police were alerted to Berhe’s location, surrounded the building, and made an announcement telling him to “come out with his hands”up.Berhe did not emerge from the building for“approximately four minutes.”After Berhe was arrested, a backpack was found in his storage unit, matching Angel and Elki’s description of the one in which Berhe had earlier been carrying a firearm. Several days later, the police discovered that the “[v]ery flimsy” door to Garcia’s adjacent unit had been forced open, and a loaded, operablefirearm consistent with the description provided by Angel and Elki left inside. From all this, the jury could reasonably deduce that Berhe had heard the police order him to come out of the building, realized that his arrest wasboth imminent and unavoidable, and then used the ensuing four minutes to force open the door to Garcia’s unit and drop the firearm inside. In short, substantial evidence supportsthe jury’s finding that the loaded, operable firearm found in Garcia’s storage unit was the same firearm Berhe used to threaten Angel and Elki.
The second part of Berhe’s argument is that even if he “at some point” possessed the firearmfound in Garcia’s unit, it was not “available for immediate . . . use” (Health & Saf. Code, § 11370.1, subd. (c)) because “the only evidence presented was that the firearm waslocated in Garcia’s storage unit, physically separated fromBerhe’s unit by a hallway and a door,” and “[t]o access itfrom that location, Berhe would have had to enter the commonhallway and somehow retrieve the gun from Garcia’s lockedunit.” The argument fails.
To begin with, possession of a controlled substance can be actual or constructive, with constructive possession existing “where a defendant maintains some control or right to control contraband that is in the actual possession of another.” (People v. Morante (1999) 20 Cal.4th 403, 417; see CALCRIM No. 2303 [defendant does not have to “hold or touch something to possess it” but only have “control over it or the right to control it, either personally or through another person”].) Constructive possession “may be established by circumstantial evidence and any reasonable inferences drawn from such evidence,” and “may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control.” (People v. Williams (1971) 5 Cal.3d 211, 215; see People v. Jenkins (1979) 91 Cal.App.3d 579, 584 [the “inference of dominion and control is easily made when the contraband is discovered in a place over which the defendant has general dominion and control,” including his residence, automobile, and personal effects].)
Furthermore, possession of a controlled substance is “a ‘continuing’ offense, one that extends . . . throughout the entire time the defendant asserts dominion and control over illegal drugs.” (People v. Bland (1995) 10 Cal.4th 991, 999; see People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [defendant can be found guilty of possession of a controlled substance based on past possession if it took place “during the period of the applicable statute of limitations”].)
As noted, Goodman testified that Berhe had been renting a storage unit at BuxBear since late February, that she saw him there “[a]lmost every day,” and that he, like other tenants, had a personal access code to enter and exit the property. From this testimony, the jury could reasonably conclude that Berhe constructively possessed the methamphetamine later found in his storage unit, not only at the moment of his arrest, but throughout the time period ending at that moment and beginning when it came to be there. (See People v. Bland, supra, 10 Cal.4th at p. 999; People v. Palaschak, supra, 9 Cal.4th at p. 1242.) And as we have already discussed, substantial evidence likewise supports a further finding that Berhe had the firearm on his personduring the time period beginning around 2:24 p.m., when he had just pointed it at Angel and Elki on the bike trail, until the moment he placed it into Garcia’s storage unit, at some point (presumably, immediately) preceding his arrest approximately two and a half hours later. From all this, the jury could reasonably—and easily—conclude that during the afternoon on June 4, “[w]hile possessing” methamphetamine, Berhe “had a loaded, operable firearm available for immediate offensive or defensive use.” (CALCRIM No. 2303; see Health & Saf. Code, §11370.1, subds. (a) & (c).) Accordingly, his substantial evidence challenge to his conviction on count 4 must fail.
The Failure to Pronounce Sentence on Count 7 Requires
Remand for Resentencing
Our initial review of the record revealedthat the trial court neglected to sentence Berhe on count 7, misdemeanor possession of a controlled substance. We requested and received supplemental briefing from the parties on this issue, and they agree that the failure to pronounce sentence on this count was error and that the appropriate remedy is remand for a full resentencing. As do we.
“A trial court has a duty in both felony and misdemeanor cases to pronounce sentence on every conviction. (§§12, 1202, 1445; People v. Eberhardt (1986) 186 Cal.App.3d 1112, 1121–1122; People v. Cheffen (1969) 2 Cal.App.3d 638, 641–642; People v. Morrow (1969) 275 Cal.App.2d 507, 514.)” (People v. Codinha (2023) 92 Cal.App.5th 976, 994; see In re Sandel (1966) 64 Cal.2d 412, 415.) “The failure to pronounce sentence on a count is an unauthorized sentence and subject to correction on remand.” (People v. Price (1986) 184 Cal.App.3d 1405, 1411, fn. 6; see also People v. Benton (1979) 100 Cal.App.3d 92, 102 [failure to either strike or impose enhancement was “analogous to a failure to pronounce sentence on all counts, which is the type of unauthorized sentence that can be corrected by remand on the defendant’s appeal”].) As noted, no mention of count 7 was made by the trial court or counsel for the parties at sentencing, nor is any sentence on that count reflected in the minutes or on the abstract of judgment.Indeed, the minute order for the sentencing hearing lists count 7 and then states that it was “[n]ot addressed.”
In any event, even if the minute order or the abstract of judgment did reflect a sentence on count 7, failure to pronounce sentence orally renders the sentence unauthorized. (See, e.g.,People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [“[t]he record of the oral pronouncement of the court controls over the clerk’s minute order”]; People v. Mesa (1975) 14 Cal.3d 466, 471 [“ ‘[r]endition of judgment is an oral pronouncement’ ” and controls over minutes and abstract of judgment]; People v. Zackery (2007) 147 Cal.App.4th 380, 387–388.)
Under these circumstances, we agree with the parties that the proper remedy is a remand for full resentencing.(See People v. Salazar (2023) 15 Cal.5th 416, 431 [“remand is the default...unless there is a clear indication from the sentencing court that it would be idle to do so”]; People v. Codinha,supra, 92 Cal.App.5th at pp. 994–995; People v. Burbine (2003) 106 Cal.App.4th 1250, 1257–1258 [finding full resentencing appropriate given the “ ‘interlocking nature’ ” and “inherently integrated nature” of felony sentencing for a multiple-count conviction].)
DISPOSITION
The judgment of conviction is affirmed, but the sentence is vacated and the case is remanded to the trial court with directions to conduct a full resentencing in accordance with the views expressed in this opinion.

RICHMAN, ACTING P.J.

We concur.

MILLER, J.

DESAUTELS, J.

(A173123N)