People v. Kestner CA2/6

Filed 9/23/25 P. v. Kestner CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B337793 (Super. Ct. No. MA083775) Plaintiff and Respondent, (Los Angeles County)

v.

JOSHUA KESTNER,

Defendant and Appellant.

Joshua Kestner appeals from the judgment after a jury convicted him of felon in possession of a firearm (Pen. Code,1 § 29800, subd. (a)(1); count 1), and prohibited person in possession of ammunition (§ 30305, subd. (a)(1); count 2). The trial court sentenced Kestner to two years in state prison for count 1, and a concurrent sentence of two years for count 2. Kestner contends the trial court erred when it failed to instruct the jury sua sponte: (1) that it must unanimously agree which ammunition he possessed, and (2) regarding the defense of

1 All statutory references are to the Penal Code.

momentary possession. We affirm. FACTUAL AND PROCEDURAL HISTORY Sheriff’s deputies obtained a search warrant for a house where they believed D.F. lived to obtain evidence of an armed robbery in which he was a suspect. Before serving the warrant, deputies saw D.F. leave the house, arrested him, and recovered from his person the firearm used in the robbery. Deputies then searched the house. Inside were Kestner, Kestner’s girlfriend, her father, and her two children. At 5:03 p.m., a deputy searched an unlocked hallway closet “in a common area of the house.” The closet contained men’s clothing, a backpack, and a locked safe. The clothing was for a larger person than D.F. or the girlfriend’s father. In the backpack was a piece of mail addressed to Kestner. Also in the closet was a holster containing a Glock pistol, loaded with 10 live .40 caliber bullets. A deputy asked Kestner for the code to open the safe. Kestner said, “That’s not mine.” But when the deputy said they would have to break it open pursuant to the search warrant, Kestner told him the six-digit code. At 5:21 p.m., a deputy opened the safe using the code Kestner provided. Inside the safe was a Glock magazine containing 30 live rounds of .40 caliber ammunition that would fit the firearm found in the closet, three boxes of live ammunition of various calibers, firearm parts, and a scale with what appeared to be drug residue. After being advised of his Miranda2 rights, Kestner admitted the firearm, the safe, and its contents, including the