Opinion
A121064
1-6-2009
In re T.F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. T.F., Defendant and Appellant.
Not to be Published in Official Reports
I. INTRODUCTION
Following a contested jurisdictional hearing, the Solano County juvenile court sustained allegations against T.F. for carrying a loaded firearm in a vehicle (Pen. Code, § 12031, subd. (a)(1)) and carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1)). It adjudged appellant a ward of the court and placed him on probation in the custody of his parents, with conditions including 30 days in juvenile hall with 30 days credit for time served. On appeal, he contends there was insufficient evidence to sustain the true findings. We disagree and hence affirm the judgment.
All further unspecified statutory references are to the Penal Code.
II. FACTUAL AND PROCEDURAL BACKGROUND
On January 2, 2008, by a Welfare and Institutions Code section 602 petition, appellant was charged with two counts of misdemeanor carrying a loaded firearm in a vehicle (§ 12031, subd. (a)(1)) (counts 1 and 2) and one count of misdemeanor carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1)) (count 3).
On January 25, 2008, the court held a contested jurisdictional hearing on the petition, and the following evidence was presented.
On December 31, 2007, at about 1:25 a.m., Fairfield Police Officer Richard Williams, in uniform and a marked car, responded to a dispatch regarding a gun fight. As he drove north on Union Avenue, Officer Williams observed a dark-colored Mustang driving towards him with its lights off about one block from the scene of the reported gun fight. The Mustangs lights were turned on as it got closer to Williams. Behind the Mustang was a green Oldsmobile Cutlass which appeared to be following the Mustang. The Cutlass drove through a four-way stop at the intersection of Pacific Avenue and Union, driving approximately 30-40 miles per hour. Officer Williams made a U-turn in the intersection, activated his emergency lights, and pursued the Cutlass.
The Cutlass continued south on Union, stopped and turned right on Tabor Avenue, then turned right on Hampton Court, a cul-de-sac. When the Cutlass stopped in the middle of the road, Williams stopped about 25 yards behind it. Williams could see five or six persons inside. He requested back-up and turned on his spotlight to illuminate the vehicle, allowing him to see clearly into the interior. He ordered the vehicles driver to throw the car keys out the window. The driver complied.
Williams also ordered the occupants to remain seated with their hands up. Despite repeated directions to keep their hands in the air, there was "a lot of movement in the vehicle," mostly from the passengers in the back seat. He could see the occupants only from the shoulders up. He could not see what was in their hands and could not see what they were doing when they dropped their hands. He did not see anything being passed by one occupant to another.
The first back-up officer to arrive, about one minute after Williamss call, was Officer David Neal. Neal observed five persons in the car, two in front and three in back. He also saw a lot of movement from the occupants, including reaching down. Like Williams, Neal ordered the occupants to keep their hands visible. His clearest view was of the back seat occupants from the shoulders up; he could see only the heads and part of the hands of those in the front. The movement he saw was "predominantly from the rear seats . . . because of the way where I was standing." Neal stated that "all the occupants at one time or another did not have their hands in the air where we could see them."
About five or six minutes later, once sufficient additional officers arrived, Officer Williams had the vehicles occupants get out of the car, one at a time. The driver, appellant, got out first. The other occupants were A.P., who was in the front passenger seat; W.P., who was in the back seat behind appellant; an adult named Demarco Massingale, who was seated in the middle of the back seat; and C.M., who was seated in the back seat behind A.P.
Officer Neal searched the Cutlass. He found a loaded, long-barreled, . 45 caliber revolver on the rear floorboard, partially concealed under the rear of the drivers seat. A second gun, a loaded . 25 caliber semiautomatic handgun, was found under the rear of the front passenger seat.
The Cutlass had bucket seats in the front that were separated by an armrest. Neal did not see anything passed from the front seat to the rear of the car. Neither Neal nor Williams performed any tests to see whether a gun could be slid from the front seat to the back seat underneath the drivers seat.
All five occupants were arrested and taken to the Fairfield Police Department. Appellant waived his Miranda rights and made a statement to Officer Williams. He said that he was spending the night at A.P.s house in Vacaville. A.P.s older brother W.P. was also there. W.P. got a call from C.M., stating that someone had threatened C.M.s girlfriend with a gun. W.P. told appellant they needed to pick up Demarco Massingale and C.M. in Fairfield. Appellant drove W.P. and A.P. from Vacaville to Fairfield. They picked up Massingale and continued to an apartment building on Peachtree Drive in Fairfield. Appellant and A.P. stayed in the car; W.P. and Massingale went inside and returned a short time later with C.M.. Once all five were in the car, C.M. pointed out a black Mustang down the street and told appellant to follow it; he said he was going to fight the people inside the car. As appellant started to follow the Mustang, C.M. pulled out a revolver and showed it to appellant. This was the only gun appellant said he observed. As appellant started to follow the Mustang, C.M. said the police were behind them and that appellant should turn right on Tabor and then right on Hampton Court.
Separately filed petitions against A.P. and C.M. were joined for the jurisdictional hearing. It appears that C.M. admitted the allegations against him, and the hearing proceeded against appellant and A.P. The court ultimately dismissed one count against A.P. and found the remaining charges against him untrue.
Upon examination, no fingerprints were found on either gun. No gunshot residue tests were performed on any of the five occupants of the Cutlass.
In defense, appellants father testified that he was the owner of the Cutlass and that appellant had his permission to drive it and to spend the night at A.P.s house. He stated that the revolver could not have been pushed under one of the front seats to the back seat area because of the manual seat adjustment bars under both front seats of the Cutlass. He had never seen his son with a gun. Appellants father acknowledged that when the armrest between the two front seats was down, there was "a slight gap there."
Appellant testified in his own defense. He stated that he was spending the night at the P.s house and driving the Cutlass with his parents permission. Neither P. brother had a drivers license or a car, so appellant agreed to drive. Appellant and A.P. waited in the car while W.P. and Massingale went into the apartment building. A.P. got into the front passenger seat while they waited. After about 10 minutes, W.P., Massingale, and C.M. came out to the car and sat in the back. Appellant saw a black handle which he presumed to be a gun sticking out from C.M.s waistband. C.M. pointed out the Mustang and said a woman in that car had "called the cops on him," and that they needed to return to the P. residence in Vacaville quickly. Appellant drove fast, running through a stop sign. C.M. told him to turn right because the police were behind them. C.M. told appellant to make a second right turn, and after appellant did so, the police stopped him.
The police officer ordered appellant to throw out the car keys and hold up his hands. Appellant complied.
Appellant denied being in possession of, or handling, any gun that night. He did not know how the revolver came to be located behind and underneath the drivers seat. He had no involvement with the gun beyond seeing it in C.M.s waistband.
Appellant knew that C.M. told W.P. that someone had threatened C.M.s girlfriend with a gun. Appellant willingly drove to pick up C.M. He denied that C.M. said he was going to fight the people in the Mustang. He denied that C.M. told him to follow the Mustang or that he did follow the Mustang. He did not recall making such a statement to Officer Williams, and denied that he made any such statement. Appellant denied that C.M. pulled out the gun and showed it to him, and denied saying that to Williams. He acknowledged telling Officer Williams that he saw the gun in C.M.s waistband.
Appellant admitted that after the stop, the police told them multiple times to keep their hands up. He admitted there was movement in the rear of the car, but denied dropping his hands and did not know if anyone else dropped their hands. There was no conversation in the car after the police stopped the car.
Appellant agreed that when the armrest between the two front seats is down, there is a gap of space between the two front seats.
The court judicially noticed that C.M. admitted the allegations charged against him.
In rebuttal, Officer Williams testified that appellant told him: (1) C.M. said he was going to fight the people in the Mustang; (2) C.M. instructed appellant to follow the Mustang; (3) appellant started to follow the Mustang; and (4) at that point, C.M. pulled out the revolver and showed it to appellant.
At the conclusion of the jurisdictional hearing, the court dismissed count 1 (pertaining to the .25 caliber handgun) and sustained counts 2 and 3 (pertaining to the .45 caliber revolver).
At the dispositional hearing on February 28, 2008, appellant was declared a ward of the court but was returned to the custody of his parents. He was placed on probation for a maximum time of one year four months. The terms of his probation included 30 days in juvenile hall with credit for 30 days time served, 50 hours of volunteer work, a restitution fine of $50, and various other conditions.
Appellant filed a timely notice of appeal on March 14, 2008.
III. DISCUSSION
Appellant contends the courts findings must be reversed for insufficiency of the evidence.
In pertinent part, subdivision (a)(1) of section 12025 provides that a person is guilty of carrying a concealed firearm when he or she "[c]arries concealed within any vehicle which is under his or her control or direction any pistol, revolver, or other firearm capable of being concealed upon the person." A person violates section 12031, subdivision (a)(1), 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 . . . ." Appellant does not dispute that the vehicle was under his control and that the revolver was both loaded and concealed within the vehicle. Appellants only contention in this appeal is that there was no showing that he carried the gun.
"In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must 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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the [trier of facts] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.] ` "If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.) The same principles that apply to appellate review of a sufficiency of the evidence claim for an adult conviction also apply to a finding that a juvenile violated a criminal statute. (In re Roderick P. (1972) 7 Cal.3d 801, 809.)
A defendant has actual possession of a weapon that is in his immediate physical possession or control, and has constructive possession where the firearm is not within his physical possession, but over which he knowingly exercises control or the right to control. (People v. Pena (1999) 74 Cal.App.4th 1078, 1083.) Although carrying and possessing are not synonymous, a conviction for carrying a firearm may be supported by circumstantial evidence of the constructive possession of a firearm. (People v. Taylor (1984) 151 Cal.App.3d 432, 436; People v. Nieto (1966) 247 Cal.App.2d 364, 368.) Exclusive possession of the firearm or of the place where it is found need not be shown to establish dominion and control. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Dominion and control may be shown by circumstantial evidence and any reasonable inferences to be drawn therefrom. (People v. Williams (1971) 5 Cal.3d 211, 215.) However, the defendants mere presence in a vehicle in which contraband is found, without more, will not support a finding of possession. (In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330.) When reviewing the evidence on appeal, we need only consider whether substantial evidence supports the findings below, not whether guilt is established beyond a reasonable doubt. (People v. Redmond (1969) 71 Cal.2d 745, 755.)
" `Carrying and `having are not synonymous. `Having relates to an `act or state of possessing, . . . while `carrying refers to the `act or instance of carrying and the verb `carry in relevant definition connotes `to convey, or transport . . .; and `to transfer from one place . . . to another. [Citation.]" (People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 6.)
The inference of constructive possession is more easily made when the firearm 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.) In People v. Nieto, supra, 247 Cal.App.2d 364, the defendant claimed the evidence was insufficient to support a finding that he had possession of the guns found hidden under the front seat. The court disagreed: "The evidence clearly shows that the guns were found under the front seat of appellants 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. [Citations.]" (Id. at p. 368.)
Courts have also inferred constructive possession where the firearm was not within the defendants immediate physical space. For example, in People v. Cordova (1979) 97 Cal.App.3d 665, 669-670, the gun was found in the locked trunk of a car the defendant was driving. The defendant had no key to the trunk, and several of his relatives testified that the key had been lost two months before the defendants arrest. However, the trunk also contained ammunition of the same caliber that the defendants wife had purchased shortly before his arrest, and which was found in their home. The court found this evidence supported "a chain of circumstances from which defendants knowledge and actual or constructive possession or control of the firearm could be readily inferred supporting a finding of guilt." (Id. at p. 670.) Similarly, in People v. Taylor, supra, 151 Cal.App.3d 432, police observed a gun thrown from the passenger side of a car into the bushes during a high-speed chase. The evidence supported an inference of constructive possession by the defendant who was driving. (Id. at pp. 434, 436.)
Finally, in People v. Gant (1968) 264 Cal.App.2d 420, 422, 425, the court held there was sufficient evidence to support a finding that the driver of the vehicle, in which there were three other passengers, possessed two concealed firearms, one under the floor mat of the front passenger seat and one under the dash to the right of the glove compartment. The court reasoned: "As to Gant, the entire vehicle was under his control inasmuch as he was the driver and took charge when asked by Officer Kinsey concerning the ownership and possession of the car. The Colt .45 was concealed under the dash to the right of the glove compartment and readily accessible to Gant. In addition, Gants attempt to avoid the officer by increasing his speed from 90 to 100 miles an hour is indicative of his guilty knowledge of the presence of the stolen weapons. It was reasonable for the trial judge to infer from the above that the vehicle was in the joint possession of Gant and Reed [the front seat passenger] with Gant having actual control and direction; that both knew of the presence of the guns; that while neither had exclusive possession of the weapons they were readily available to each. The statute does not require that a defendant have the exclusive possession and control of the firearm. [Citation.]" (Id. at p. 425, fn. omitted.)
Here, there is substantial evidence from which the court could infer that appellant had dominion and control of the revolver. As the driver of the car, appellant had general dominion and control over the vehicle. He willingly drove C.M. around, knowing that C.M. was armed with a firearm and wanted to fight the occupants of the Mustang. The Cutlass was following the Mustang when it ran the stop sign, and appellant did not immediately pull over when the police signaled him to stop. During the several minutes appellant and his companions remained in the car while the officers on-scene waited for back-up to arrive, all of the occupants moved about in the vehicle, including dropping their hands out of sight of the officers. By the time appellant and his companions got out of the car, C.M. no longer had physical possession of the revolver. C.M. had been sitting in the right rear passenger seat, but the revolver was found protruding from under the rear of the drivers seat. This evidence is sufficient to support an inference of constructive possession.
Appellant argues that the evidence amounts to no more than appellants presence in the car and knowledge that one of the passengers had a gun on his person. Appellant relies on evidence that the officers did not see anything being passed inside the car and that most of the movement was by the back seat passengers. Appellant also argues that the revolver was not in a location that was subject to appellants dominion and control. In effect, appellant asks us to draw different inferences from the evidence. This we cannot do. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373 ["Even if different inferences can reasonably be drawn from the evidence, we cannot substitute our own inferences or deductions for those of the trial court."].)
In light of our conclusion on the issue of constructive possession, we need not address respondents argument that the trial courts findings could be sustained on a theory of aiding and abetting.
IV. DISPOSITION
The order appealed from is affirmed.
We concur:
Kline, P.J.
Richman, J.