Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County, Ct. No. JJD063423 Valeriano Saucedo, Judge.
Arthur Lee Bowie, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Cornell, Acting P.J., Hill, J., and Kane, J.
The court found that appellant, L.H., was a person described in Welfare and Institutions Code section 602 after it sustained allegations charging appellant with receiving stolen property (count 1/Pen. Code, § 496, subd. (a)), possession of a firearm by a minor (count 2/Pen. Code, §12101, subd. (a)(1)), possession of a short barreled shotgun or rifle (count 3/Pen. Code, § 12020, subd. (a)(1)), and misdemeanor possession of live ammunition (count 4/Pen. Code, § 12101, subd. (b)(1)).
On August 31, 2009, the court placed appellant on probation under the supervision of the probation department and in the custody of his parents.
On appeal, appellant contends: 1) the evidence is insufficient to sustain the court’s finding that he committed the charged offenses; 2) the court erred in setting a maximum term of confinement; and 3) the court erred by its failure to award him predisposition custody credit. We will find merit to appellant’s first contention with respect to counts 2, 3, and 4 and reverse the court’s true findings as to those counts. We will also strike appellant’s maximum term of confinement after concluding the court erred in setting this term and we will find that appellant’s third contention is moot. In all other respects, we will affirm.
FACTS
The October 26, 2008 Incident
Porterville Police Officer Steven Ward testified that on October 26, 2008, at approximately 9:25 p.m., he responded to a call of a suspicious truck in the parking lot of an apartment complex. Upon arriving at the parking lot, Officer Ward saw a truck matching the description of the suspicious truck parked in the northwest portion of the parking lot and silhouettes of people running to and from the truck. The truck then started traveling across the parking lot without its headlights on and parked in a parking stall.
Officer Ward positioned his patrol car behind the truck, activated his emergency lights, and shone his spotlight on the truck. Prior to other officers arriving, Officer Ward heard sounds like plastic cracking and popping and he saw the occupants in the back seat of the truck moving around a lot. Officer Ward ordered the occupants several times to stop moving and to keep their hands in plain sight but they did not obey him. Officer Ward had the occupants exit the truck when additional units arrived on the scene.
Appellant had been seated in the back seat of the truck and agreed to speak with Officer Ward. Officer Ward asked appellant why he was in the parking lot, what happened, why he was in the suspect truck, and why he was with the other truck occupants? Appellant responded to each inquiry by stating that he did not know. Officer Ward ended the conversation when appellant mentioned something about an attorney.
Officer Ward checked the parking lot and found that three vehicles, including a gray truck and a red truck, had been broken into and property scattered in and around them. The gray truck had its rear sliding window pried open and wires hanging out from the dash where a stereo was missing. The red truck had a window pried open, its glove compartment open, its dome light on, and papers scattered throughout its interior.
Christopher Gibson testified that he owned the gray truck that had been broken into. On October 26, 2008, Gibson parked his truck in the apartment complex parking lot at 2:30 p.m. with its windows and doors locked. That night, he was informed by police officers that his truck may have been broken into. After inspecting his truck, Gibson found it was missing a CD player, a remote for the CD player, an ignition box, and a black toolbox with a yellow handle. He recovered these items from inside of the detained truck.
James Lightner testified that he owned the red truck that had been broken into. On October 26, 2008, he parked his truck in the apartment complex parking lot at around 4:00 p.m. and left it with its windows and doors locked. That night, police officers informed him that his truck may have been broken into. When he inspected his truck, he found that it was missing a sticker for his license plate and a black bag containing tools and check stubs. Lightner recovered these items that night from the back seat of the detained truck.
Officer Aaron Sutherland testified that he assisted in removing five occupants, including appellant, from the detained truck. He then checked the interior of the truck and found a car stereo partially concealed under the center console, closer to the rear seats than the fronts seats. Officer Sutherland also found a black bag and ignition box under the left side of the rear bench seat, and a black tool box with a yellow handle under the right side of the rear bench seat.
The part of the center console that was near the back seat appeared to have been damaged by someone lifting it up.
The May 12, 2009 Incident
Officer Chris Contreras testified that on May 12, 2009, at approximately 10:43 p.m., he was on duty in an unmarked vehicle in the City of Porterville when he stopped a burgundy Chevy SUV truck that ran a red light. The truck had four occupants, two in the front and two in the back, including appellant, who was sitting in the rear seat behind the driver.
After stopping the truck, Officer Contreras situated himself by the rear passenger door and contacted the driver. As Officer Contreras asked the driver for his license and other documents, he saw a closed box of Remington 12-gauge ammunition containing live rounds stuffed into a pouch on the backside of the driver’s seat. The box was stuffed in the pouch in a manner that neither the word Remington or any other words identifying its contents were visible from Officer Contreras’ vantage point at the side of the truck.
Officer Contreras called for backup and had the occupants of the truck step out when additional units arrived. He then searched the truck and found a sawed-off shotgun sitting on top of a speaker that was located in the area behind the back passenger seat, near the seat and towards its middle. The shotgun was wrapped in a towel and had an inch or two of the stock and part of the muzzle exposed. The top of the rear seat was approximately a foot higher than the top of the speaker.
DISCUSSION
The Receiving Stolen Property Charge
Appellant contends the evidence is insufficient to support his adjudication for receiving stolen property because all it shows is his mere presence near the stolen property. We disagree.
“‘In reviewing a criminal conviction challenged as lacking evidentiary support, “‘the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence―that is, evidence which is reasonable, credible, and of solid value―such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’” [Citation.] The same standard of review applies to cases in which the prosecution relies mainly on circumstantial evidence. [Citation.]... An appellate court must accept logical inferences that the jury might have drawn from the circumstantial evidence.’ [Citation.]
“‘A conviction for receiving stolen property cannot withstand appellate scrutiny unless substantial evidence was presented to the trier of fact that (1) the property was received, concealed, or withheld by the accused; (2) such property had been obtained by theft or extortion; and (3) the accused knew that the property had been so obtained.’ [Citation.]
“‘Possession of the stolen property may be actual or constructive and need not be exclusive. [Citations.] Physical possession is also not a requirement. It is sufficient if the defendant acquires a measure of control or dominion over the stolen property. [Citations.]’ [Citation.] A defendant’s false statement concerning how he obtained property that was in fact stolen is sufficient to show the defendant knew the property was stolen. [Citation.]” (People v. Grant (2003) 113 Cal.App.4th 579, 595-596.)
Here, it was undisputed that the car stereo found partially concealed in the detained truck’s broken console and the bag, ignition switch, tools, and tool box found under the rear bench seat where appellant was sitting had been recently stolen. Further, some of the occupants were seen running to and from the truck, the truck was then driven surreptitiously through the parking lot, and after it was detained, stolen property from two burglarized vehicles was found secreted in various locations in the truck. Additionally, all the occupants, including appellant, disobeyed Officer Ward’s command to show their hands and appeared to be hiding something in the truck. When interviewed, appellant exhibited a consciousness of guilt when, in response to Officer Ward’s questions, he repeatedly, falsely stated that he did not know. (See e.g., CALJIC No. 2.03 (Consciousness of Guilt―Falsehood).) The court could reasonably find from these circumstances that prior to being detained, appellant was actively involved with the other truck occupants in burglarizing vehicles in the apartment complex parking lot. Thus, it could also reasonably infer that appellant was aware of the presence of the stolen property in the suspect truck and that he and the other truck occupants were in joint possession of this property.
Moreover, at minimum, the court could reasonably infer from the above circumstances that appellant was aware the property brought back to the truck by his cohorts was stolen. It could also reasonably find from these circumstances, particularly from appellant’s failure to show his hands when ordered to and the movement inside the truck at that time, that appellant possessed the stolen property at least temporarily while he helped hide the property inside the truck. Accordingly, we reject appellant’s claim that the evidence is insufficient to sustain his adjudication for receiving stolen property.
The Possession of Firearm and Ammunition Charges
In order to prove the possession of firearm and ammunition offenses charged in counts 2, 3, and 4 of the petition, the prosecutor had to show that appellant exercised dominion and control over the sawed-off shotgun and the box of ammunition with knowledge of their presence and nature. (People v. Cordova (1979) 97 Cal.App.3d 665, 667.)
Here, all the evidence showed was that when the truck appellant was riding in was stopped, a box of ammunition was located in a pouch on the backside of the driver’s seat in front of where appellant was seated and a sawed-off shotgun was located on top of a speaker in the cargo area behind where appellant was seated. However, neither item of contraband was readily visible because the stop occurred at night, the portion of the box that protruded from the seat pouch did not have any writing visible on it that identified its contents, and besides being almost completely wrapped in a towel, the shotgun was located one foot below the height of the rear seat where appellant was sitting. Thus, the record does not contain any evidence from which the trial court could reasonably infer that appellant exercised dominion and control over the contraband at issue or that he was even aware of its presence in the truck. Instead, all it shows is appellant’s proximity to the ammunition and sawed-off shotgun. However, “the mere presence of the accused with others in a vehicle in which contraband is found or from which it is thrown is not sufficient evidence, standing alone, to justify a conviction of possession [citation].” (In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330.)
Respondent cites Rideout v. Superior Court (1967) 67 Cal.2d 471 (Rideout) and People v. Nieto (1966) 247 Cal.App.2d 364 (Nieto) to contend the trial court could reasonably find that appellant exercised dominion and control over the contraband at issue from his close proximity to it. These cases are inapposite. In Rideout, after stopping the car in which the defendants were riding in the back seat, an officer found a “crutch” on the floorboard in front of the back seat and a cigarette pack containing marijuana in the well behind the back seat where the car’s convertible top folded down. (Rideout, supra, 67 Cal.2d at pp. 473-474.) Following a preliminary hearing during which the defendants were held to answer on a charge of transportation of marijuana and the filing of an information, the defendants sought a writ of prohibition restraining the Santa Clara County Superior Court from taking any further action on the information. (Id. at p. 473.) In denying the writ and finding that the preliminary hearing evidence provided the magistrate with probable cause to believe that the defendants’ committed the charged transportation offense, the Supreme Court stated:
“In the present case … the magistrate could reasonably have inferred that petitioners had possession of the marijuana and knowledge of its presence since they were the ones in closest proximity to the place where it was found, the place apparently was accessible to them, and they had an opportunity to deposit the marijuana there when the police directed the car in which they were riding to pull over. Likewise an inference of their knowledge of the narcotic character of the marijuana is warranted by the evidence of the presence of the ‘crutch’ on the floor in front of the back seat where petitioners were sitting [citation] and the secretion of the marijuana in an ordinary package of cigarettes [citation].” (Rideout, supra, 67 Cal.2d at p. 475.)
Rideout is easily distinguishable because the issue in that case involved a question of probable cause whereas the issue in the instant case involves a question of proof beyond a reasonable doubt, a much more stringent standard.
In Nieto, following a traffic stop of the car the defendant was driving with a passenger, an officer found two guns lying on the floorboard, with one partially protruding from under the middle of the front seat. In upholding the defendant’s conviction notwithstanding that the passenger claimed the guns were his, the court stated:
“The evidence clearly shows that the guns were found under the front seat of appellant’s car at a time when he was driving the vehicle. At the very least, this is circumstantial evidence supportive of a finding of joint or constructive possession, custody or control of the guns by appellant, and sufficient to sustain his conviction.” (Nieto, supra, 247 Cal.App.2d at p. 368.)
Nieto is distinguishable from the instant case because there, the defendant was the driver of a car that was found to contain two guns. Further, the inference of constructive possession is more easily made when the contraband is discovered in a place over which the defendant has general dominion and control, such as his residence (see, e.g., People v. Neese (1969) 272 Cal.App.2d 235), his vehicle (see, e.g., People v. Nieto, supra, 247 Cal.App.2d 364), or his personal effects (see, e.g., People v. Pearson (1957) 150 Cal.App.2d 811.) Thus, we conclude that the evidence is insufficient to sustain the court’s true findings with respect to counts 2, 3, and 4.
Appellant’s Maximum Term of Confinement
On August 31, 2009, at appellant’s disposition hearing, the court placed appellant on probation in the custody of his parents and under the supervision of the probation department. The court also set appellant’s maximum term of confinement at three years ten months. The court, however, did not award him any predisposition custody credits. Appellant contends the court erred in setting his maximum term of confinement because he was not ordered into physical confinement. Respondent concedes and we agree.
“When a minor is removed from the physical custody of his parent or custodian as a result of criminal violations sustained under Welfare and Institutions Code section 602, the court must specify the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses. [Citation.]” (In re Matthew A. (2008) 165 Cal.App.4th 537, 541 (Matthew A.).) However, it is error for the court to specify a minor’s maximum term of confinement if the minor is not removed from the custody of his or her parents. (Id. at p. 541.) Since appellant was not removed from the physical custody of his parents, in accord with Matthew A., we agree that the court erred when it set appellant’s maximum term of confinement.
Predisposition Custody Credits
Appellant contends that if this court does not strike his maximum term of confinement, he is entitled to predisposition custody credit. Respondent contends the issue is moot because the court erred in setting a maximum term of confinement. We agree the issue is moot.
“‘A case becomes moot when a court ruling can have no practical impact or cannot provide the parties with effective relief.’ ([Citation]; Ebensteiner Co., Inc. v. Chadmar Group (2006) 143 Cal.App.4th 1174, 1178 … [‘Generally, courts decide only “actual controversies” which will result in a judgment that offers relief to the parties. [Citations.]’].) ‘Thus, appellate courts as a rule will not render opinions on moot questions.’ [Citation.]” (In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231.)
Here, calculating appellant’s predisposition custody credit would have no practical effect and would not provide appellant with any effective relief because the court did not place him in physical confinement and it erred in setting his maximum term of confinement. Additionally, the court will have the opportunity to calculate appellant’s entitlement to predisposition custody credit if, in the future, appellant violates probation and the court at that time places him in physical confinement. Thus, we conclude that the issue of appellant’s entitlement to predisposition custody credit is moot.
DISPOSITION
The court’s true findings in counts 2, 3, and 4 are reversed and the order setting appellant’s maximum term of confinement is stricken. The juvenile court is directed to file an amended disposition order that incorporates these changes. As modified, the court’s disposition order is affirmed.