Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ09013076-02.
Bruiniers, J.
Kevon H. (Kevon), a juvenile, was found carrying a loaded gun in the parking lot of an apartment complex and the juvenile court sustained an allegation that he violated Penal Code section 12031, subdivision (a)(1) (section 12031(a)(1)). He argues on appeal that there was insufficient evidence the parking lot was a “public place, ” as required by the statute. We agree and reverse.
All statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
The Alameda County District Attorney filed a Welfare and Institutions Code section 602 subsequent petition alleging that Kevon committed the following crimes on August 24, 2009, in Hayward: carrying a concealed firearm without a license, a felony (§ 12025, subd. (a)(2); count 1); carrying a loaded firearm in a public place or on a public street in an incorporated city, a felony (§ 12031(a)(1); count 2); possession of base cocaine, a felony (Health & Saf. Code, § 11350; count 3); and resisting, delaying or obstructing a police officer, a misdemeanor (§ 148, subd. (a); count 4). At a contested jurisdictional hearing, the following evidence was presented.
At about 9:00 p.m. on August 24, 2009, Hayward police officer Tommie Clayton and his partner were dispatched to 983 West Tennyson in Hayward, the location of a multilevel apartment complex. Clayton arrived through the south entrance of a parking lot in the complex. He saw Kevon and three other males (the suspects) running toward him and away from officers who were at the north end of the lot. The suspects were running toward a dumpster to go over “the retaining wall” or “a concrete barrier wall” (apparently, a concrete wall that had a large opening in its upper half, which was located in front of the dumpster) and toward Clayton. Kevon climbed over the retaining wall and stopped for a moment when he landed on the other side. Clayton saw Kevon put his hands in his waistband, and Clayton then drew his service revolver and ordered Kevon to the ground. Kevon started to turn and run back in the other direction, but stopped at the retaining wall, leaned over, and Clayton heard “a loud metal clang.” Clayton grabbed Kevon by the sweatshirt collar, pulled him to the ground, and handcuffed him. He searched Kevon for weapons but did not find any. Clayton looked over the retaining wall and saw a silver.22 caliber Smith & Wesson revolver on the ground next to the dumpster at the exact spot where Kevon had been. He recovered the gun and found live ammunition inside. Testifying in his own defense, Kevon acknowledged being in the parking lot and running away from the police and “towards the garbage can.” After he made it over the wall and the officer approached him, Kevon “just gave up right then and there.” He denied having or seeing a gun.
Clayton testified “the retaining wall” was about four or five feet high. A photograph of what Clayton described as the retaining wall (Exhibit 2-C) is a side view of a dumpster, surrounded on three sides by ceiling-high concrete walls, except that the wall in front of the dumpster has a large opening in its upper half. The area where the dumpster is located is apparently in an alcove also shown in Exhibit 1-C. As we discuss further post, the “photographs” provided to us are black and white photocopies of the original photographs that are barely legible.
The issue of whether the parking lot was a public place was first raised after the close of evidence and by the trial court, not by the parties. The trial evidence relevant to the issue had been the following. Clayton testified that he was driving his patrol car when he received the dispatch to go to the apartment complex and that he “entered through the south entrance, which is West Tennyson.” He provided no other testimony about how he accessed the parking lot. When asked, “what kind of building is that that you entered into [from the south entrance]?” Clayton responded, “It’s a multi-level apartment complex.” He testified that the parking lot was ringed by garage walls and a fence, that no apartment doors opened into the lot, and that once someone was in the lot he had to exit “the regular way” and could not jump a wall or otherwise hop from one lot to the next. A photograph of one corner of the parking lot (Exhibit 1-C) and a photograph of one of the parking spaces in the lot (Exhibit 1-B) were admitted in evidence.
“Q.... Can you describe for me the area in which you saw the four kids running towards you? Was it a square parking lot, for example?
After a recess for legal research and oral argument, the court ruled: “The testimony has been that there’s an entrance on the south, an entrance on the north, cars are parked. The picture shows some walls, but I don’t see that there’s any specific blocking of the entries or gates or something that would keep people out.” Also, the officer did not describe having to break through any barrier or climb through a fence to get in and around the area. “So I’ll make the finding of a felony 12031.”
Exhibit 1-C would appear to be the only photographic evidence relevant to this issue. Clayton described Exhibit 1-C as “a photograph of the entire parking lot, ” but only one corner of the lot is shown. We requested the original exhibits because of the extremely poor quality of the black and white photocopies included with the record. Unfortunately, the original exhibits are not photographs, but are also photocopies of photographs, which were apparently taken at night, with very little discernible detail.
The court found counts 2 and 4 true beyond a reasonable doubt, made no finding on count 1, and count 3 had been dismissed on the prosecutor’s motion. At the disposition hearing, the court released Kevon to his mother’s care on GPS monitoring for 120 days, and ordered him placed thereafter in a suitable foster home, private institution, group home or county facility in the probation department’s discretion.
DISCUSSION
The sole issue raised on appeal is whether there was sufficient evidence to establish beyond a reasonable doubt that the parking lot was a public place within the meaning of section 12031. The trial court found that there was. We find insufficient evidence to support that determination.
Our review of a juvenile’s sufficiency of the evidence claim is the same as our review of such a claim following an adult conviction. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) “ ‘The decision of the juvenile court or superior court may be reversed on appeal only upon a showing that the court abused its discretion in its commitment of the minor. A reviewing court must indulge in all reasonable inferences to support the findings of the juvenile court, and such findings will not be disturbed on appeal when there is substantial evidence to support them. [Citations.]’ ” (In re Jose R. (1983) 148 Cal.App.3d 55, 59.) “ ‘... “When a trial court’s factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination....” ’ [Citation.]” (People v. Semaan (2007) 42 Cal.4th 79, 88.)
In determining whether there is sufficient evidence to support a court’s findings, we review the entire record in the light most favorable to the prosecution to see if “ ‘ “ ‘ “any rational trier of fact” ’ could have been so persuaded.”... ’ [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 996–997, italics omitted.) “Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)
“The following principles are applicable to sufficiency-of-evidence analysis under both the federal and state [constitutions]. [¶]... [¶] ‘To be sufficient, evidence must of course be substantial. It is such only if it “ ‘reasonably inspires confidence and is of “solid value.” ’ ” By definition, “substantial evidence” requires evidence and not mere speculation. In any given case, one “may speculate about any number of scenarios that may have occurred.... A reasonable inference, however, may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.... A finding of fact must be an inference drawn from evidence rather than... a mere speculation as to probabilities without evidence.” ’ ” (People v. Perez (1992) 2 Cal.4th 1117, 1133.)
Carrying a Loaded Firearm in a “Public Place”
“ ‘The general purpose of “The Dangerous Weapons’ Control Law” (§ 12000 et seq.) is to control the threat to public safety in the indiscriminate possession and carrying about of concealed and loaded weapons.’ [Citation.]” (Garber v. Superior Court (2010) 184 Cal.App.4th 724, 730.) Section 12031(a)(1) provides: “A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city....” (Italics added.) The statute does not define “public place” (§ 12031), and the term does not have a clear and uniform legislative meaning in the Penal Code (People v. Strider (2009) 177 Cal.App.4th 1393, 1401 (Strider)). However, in the context of section 12031(a)(1) and section 647, subdivision (f) (section 647(f)), which prohibits intoxication “in any public place, ” “California courts have made clear that whether a particular location is a ‘public place’ or ‘public area’ depends on the totality of the facts of the individual case. [Citations.]” (Strider, at p. 1401, citing inter alia People v. Cruz (2008) 44 Cal.4th 636, 674 [construing § 647(f)].) On the one hand, courts have rejected the proposition that a “public place” is limited to public property. (Ibid.) On the other hand, they have held that a “public place” does not encompass any place that is open to public view. (People v. White (1991) 227 Cal.App.3d 886, 892–893.) Instead, “ ‘[t]he term “public place” generally means “a location readily accessible to all those who wish to go there....” [Citation.] The key consideration is whether a member of the public can access the place “without challenge.” [Citation.]’ [Citation.]” (Strider, at p. 1401.)
There is no dispute that the City of Hayward, where Kevon was arrested, is an incorporated city within the meaning of section 12031(a)(1).
Section 647(f) provides: “Every person who commits any of the following acts is guilty of disorderly conduct, a misdemeanor: [¶]... [¶] (f) Who is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others....” (Italics added.)
Parking lots, even on private property, are “public places” for purposes of section 12031, since members of the general public could access the lots without challenge. (See People v. Green (1971) 15 Cal.App.3d 766, 771 [hospital parking lot, “being accessible to members of the public having business with the hospital, was a public place...”]; People v. Vega (1971) 18 Cal.App.3d 954, 958 [market parking lot, “being accessible to members of the public having business with the market...” was a public place].) Here, the parking lot was part of an apartment complex.
Other cases have considered whether a front area or driveway of a private residence, or the common areas of multiunit residential property are public places under sections 12031(a)(1) or 647(f). All of these cases rely on the presence or absence of barriers or other deterrents to determine whether “ ‘a member of the public can access the place “without challenge.” ’ ” (Strider, supra, 177 Cal.App.4th at p. 1401.)
In two cases, courts have cited evidence of the absence of barriers to access in holding that the front area or driveway of a private residence was a public place. In People v. Olson, the court determined that the area in front of a residence was a public place within the meaning of section 647(f). (People v. Olson (1971) 18 Cal.App.3d 592, 598.) The defendant there walked up to the front door of a residence and asked for someone who did not live there. (Id. at p. 594.) The police later led the defendant out of the home and arrested her for public intoxication. (Id. at p. 595.) The court of appeal held the arrest was justified because, “[i]nasmuch as defendant, a complete stranger to [the resident], was able to walk through the outside area of her home to the front door without challenge, it can hardly be denied that the area is open to ‘common’ or ‘general use.’ ” (Id. at p. 598.) In People v. Yarbrough, the court held there was sufficient evidence to conclude the driveway of an unoccupied residence was a public place. (People v. Yarbrough (2008) 169 Cal.App.4th 303, 319 (Yarbrough).) “Here, the front driveway of the residence had no obstacles to occupancy by the public. The car parked in the driveway appeared to be abandoned, and the residence was for sale. The driveway was unenclosed, visible to the public, exposed to general view, and had no other physical barrier to access. Defendant and his companions had gathered freely on the driveway, although the residence did not belong to any of them and they had no ownership or possessory interest in the property. The owner of the premises was neither present nor, as far as we know from the record, had the owner given permission to anyone to congregate there.” (Ibid.)
Kevon argues that the trial court’s conclusion that the activity occurred in a “public place” is not supported by sufficient evidence. Respondent relies on Yarbrough to support the verdict. “The parking lot, even though bounded by walls and a fence, had two ungated openings in the walls for entrances.... Thus, the parking lot was ‘unenclosed, visible to the public, exposed to general view, and had no other physical barrier to access.’ [Citation.]” (Fn. omitted.) We disagree.
First, the only direct evidence on point was Clayton’s testimony that the parking lot was “ringed” by “[g]arage walls and a fence....” Second, respondent’s conclusion that the lot was not enclosed because the entrances were “ungated” rests solely on the fact that “[n]o one testified that the entrances were gated....” But it is entirely speculative to draw any conclusion about the existence of gates from the absence of testimony about gates. The only other evidence before the trial court was a single photograph-or more accurately a barely legible photocopy of a photograph-with no foundational testimony about what it purports to show other than the statement that it allegedly depicted “the entire parking lot to include the retaining wall and the garage.” Respondent does not contend that the photograph provides any meaningful evidence on the issue.
The issue could have been clarified with one question and answer. It was not. Given that the possession issue was the parties’ focus at the hearing, this omission is perhaps not surprising. Nevertheless, given the state of this record, we conclude no substantial evidence supports the trial court’s decision and reverse.
DISPOSITION
The finding that Kevon H. violated section 12031(a)(1) is reversed.
We concur: Jones, P. J., Simons, J.
“A. It was pretty rectangular, lit parking lot.“Q. A rectangular lit parking lot. And this is all part of one complex, right?
“A. Yes.
“Q. Is there any access if you jump a wall from one parking lot to another parking lot?
“A. I believe that the complex only has -- it has two parking lots, but they’re separated by grass. You can’t hop from one parking lot to the next.
“Q. Okay. So once you’re in this rectangular parking lot, you’re in the rectangular parking lot unless you exit the regular way, correct?“A. Yes.”