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In Re Jorge P., A Person Coming Under the Juvenile Court Law. v. Jorge P

July 14, 2011

IN RE JORGE P., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JORGE P., DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Tulare County. Juliet L. Boccone, Judge. (Super. Ct. No. JJD062781)

The opinion of the court was delivered by: Franson, J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

OPINION

Appellant Jorge P., an admitted gang member, was riding in the front passenger seat of a car with two other known gang members when they were pulled over by police. A police officer discovered a gun in plain sight on the rear left passenger floorboard. Appellant appeals from the juvenile court's true findings that he: 1) carried a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(1), hereafter § 12031(a)(1))*fn2 as an active participant in a criminal street gang (§ 12031, subd. (a)(2)(C), hereafter § 12301(a)(2)(C)), and 2) was a minor in possession of a firearm (§ 12101, subd. (a)(1), hereafter § 12101(a)(1)). For the reasons that follow, we remand the matter to the juvenile court. In the published portion of this opinion, we conclude section 12031(a)(2)(C) requires proof of felonious conduct separate and distinct from the conduct supporting a section 12031(a)(1) allegation, notwithstanding the possibility the section 12031(a)(1) conduct can support multiple offense allegations. In the unpublished portion, we address appellant's claims of insufficient evidence, clerical error, and sentencing error.

FACTUAL AND PROCEDURAL HISTORY

Appellant was a known active member of the Loco Park clique of the Sureno criminal street gang. Officer Dwight Brumley, a member of the Gang Suppression Unit of the Visalia Police Department, had prior contacts with appellant and knew appellant was on probation with gang conditions. While on routine patrol on May 8, 2010, Officer Brumley noticed appellant sitting in the front passenger seat of a Mustang. Two other known gang members from the Loco Park clique were also in the car, one in the driver's seat, one in the right rear passenger seat. Officer Brumley initiated a traffic stop and the Mustang pulled over to the side of the road.

As Officer Brumley approached the driver's side of the car, he heard a thud that sounded like something metal or heavy hitting the floor. He had the occupants step out of the car. When the driver got out of the car, Officer Brumley saw a chrome handgun with an ivory handle in plain view on the floorboard of the unoccupied left rear passenger seat. The handgun was accessible to appellant from where he was seated in the car. Officer Brumley later determined it was a .25-caliber Sundance Boe semi-automatic handgun in apparent working condition, with two live rounds in the magazine, but none in the chamber. Appellant and his associates were transported to the police station.

Officer Daniel Ford questioned appellant at the police station, asking him if he knew the gun was in the car. Appellant initially denied knowing the gun was in the car. The officer believed he was lying based on his experience in the gang suppression unit and knowledge that as a matter of course gang members inform everyone in a car if a gun is present so those on probation or parole can make informed decisions about violating their conditions of release. Appellant confirmed this practice was true and admitted knowing the gun was in the car.

The petition charged appellant with three counts: 1) carrying a loaded firearm in a vehicle (§ 12031(a)(1)) with a further allegation of being an active participant in a criminal street gang (§ 12031(a)(2)(C)); 2) being a minor in possession of a concealable weapon (§ 12101(a)(1)); and 3) active participation in a criminal street gang (§ 186.22 subd. (a), hereafter § 186.22(a)). The petition also charged for each of counts 1 and 2 a special gang allegation under section 186.22, subdivision (b)(1)(A) (hereafter § 186.22(b)(1)(A)), which is a sentencing enhancement. The parties raise no issues as to these special enhancement allegations.

After a contested jurisdictional hearing, the juvenile court found true the allegations of counts 1 and 2, and the associated special gang enhancement allegations under section 186.22(b)(1)(A). The juvenile court adopted the recommendations of the probation department and sentenced appellant to 365 days in the Youth Facility boot camp program, and set the maximum time of confinement for the current offenses at seven years, constituting a three-year upper term for count 2 (minor in possession) with a four-year upper term sentence enhancement for the special gang allegation under section 186.22(b)(1)(A). The court stayed the sentence on count 1 (carrying a loaded weapon) pursuant to section 654. The court set the aggregate maximum time of confinement for all prior and current sustained petitions at 11 years, and 10 months, less time served.

On appeal, appellant raises several disparate issues.

DISCUSSION

I. SUBSTANTIAL EVIDENCE SHOWS APPELLANT POSSESSED OR CARRIED THE WEAPON*fn3

Appellant asserts insufficient evidence supports the juvenile court's finding that appellant possessed or carried the firearm in violation of sections 12031(a)(1) and 12101(a)(1). We disagree.

A. Standard of Review

"In considering a challenge to the sufficiency of the evidence ..., we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence that is reasonable, credible, and of solid value--from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume every fact in support of the judgment the trier of fact could have reasonable deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] 'A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' [Citation.]" (People v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)

B. Joint and Constructive Possession

Possession may be physical or constructive, and more than one person may possess the same contraband. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831; see In re Jorge M. (2000) 23 Cal.4th 866, 888.) "Constructive possession means the object is not in the defendant's physical possession, but the defendant knowingly exercises control or the right to control the object. [Citation.] Possession of a weapon may be proven circumstantially, and possession for even a limited time and purpose may be sufficient. [Citation.]" (Daniel G., supra, 120 Cal.App.4th at p. 831.) A defendant "has constructive possession when the weapon, while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. [Citations.]" (People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084 (Pena).) "Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of these elements. Of course, the necessary additional circumstances may, in some fact contexts, be rather slight. [Citations.] It is clear, however, that some additional fact is essential." (People v. Zyduck (1969) 270 Cal.App.2d 334, 336.)

The circumstantial evidence establishes appellant had knowledge of and constructive possession of the handgun. The gun was not concealed in the vehicle, but rather found in plain view on the rear floorboard, easily accessible to appellant. Appellant admitted to Officer Ford he knew the gun was in the car, as did the other passengers. Officer Brumley testified he heard something heavy or metal drop to the floor immediately prior to his discovery of the gun on the rear floorboard. The juvenile court reasonably concluded that appellant knew of the gun's location in his vicinity in the car and had the right to control it, both by its nearby ...


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