Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Appeal from a judgment of the Superior Court of Orange County, Donna L. Crandall, Judge, Super. Ct. No. DL025536
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
SILLS, P. J.
In this case we affirm a judgment sustaining a petition against a juvenile for being in possession of stolen property. When a teenager is found with his backpack at his feet and the backpack has stolen property, it is a reasonable inference that the teenager had possession and control of that stolen property.
I. FACTS
Monday, May 22, 2006, found minor Donald W. without his backpack. When Donald’s father dropped him off at school at 7:30 that morning, he asked Donald where his backpack was: Donald said it was in his school locker. Donald’s father later testified that he asked because he had not seen his son’s backpack in over a week, and because of Donald’s tendency to leave the backpack at Kaleidoscope Mall in Mission Viejo.
Donald’s mother confirmed this tendency, as she had driven Donald to the mall on two prior occasions to pick up the forgotten backpack.
At 11 o’clock that morning, a mall security guard conducting a routine security check noticed Donald on the bottom floor of a parking structure, standing between two cars. He wasn’t supposed to be there; the bottom floor was reserved as offsite parking for car dealerships. So the guard naturally asked Donald what he was doing there.
Donald began to walk toward him “pretty quick.” The guard escorted Donald up to the entertainment level of the mall and returned to the bottom level because he was “curious:”
Between the two cars, where Donald had been standing, lay a backpack. The guard picked up the backpack. It was unusually heavy. He found two red fire extinguishers. They matched the two missing extinguishers in the parking structure.
The guard took the backpack to the mall’s security office and continued to examine the backpack. He found Donald’s last name in it. He called the mall’s manager and the police. Then the guard found Donald sitting outside of a video arcade. Donald was brought to the security office.
A sheriff’s deputy arrived and searched the backpack. He also found the fire extinguishers, plus some school materials with Donald’s name on them. He also found a wallet belonging to Seth Tobin.
Seth Tobin’s wallet had disappeared from his vehicle, parked on the bottom floor of the same parking structure, the previous day.
The sheriff’s deputy interviewed Donald, who admitted that the backpack was his and claimed that he had left it at the mall two weeks prior. Donald told him that he had come to the mall to pick up his backpack on the advice of his friend “Mike,” who had called and told him the backpack was there. Donald claimed he did not know anything about Mike except that he attended Trabuco Hills High School. He told Deputy Wayne, however, that he had been unable to find the backpack.
Donald at first told Deputy Wayne that he had “stayed home sick” from school that day, but later admitted he had been dropped off that morning by his father and immediately left; he further admitted that he had not been to school in two weeks. Donald denied any knowledge of the fire extinguishers or wallet in his backpack.
Donald was charged with two counts of receiving stolen property under section 496, subdivision (a) of the Penal Code. On January 25, 2007, the juvenile court found both allegations to be true beyond a reasonable doubt, but granted Donald’s motion to reduce both to misdemeanors. Donald was sentenced to one year, four months probation.
We presume that defense counsel’s multiple references to the conduct of the jury in the case below result from force of habit, as there was no jury in this case.
Donald filed this timely appeal on January 30, 2007.
II. DISCUSSION
Donald contends there was not substantial evidence from which the trier of fact could have found he had dominion and control over, and knowledge of, the stolen items in his backpack. In particular, no one saw him with either the fire extinguishers or the wallet and no one contradicted his statement or his parent’s testimony that he had lost the backpack at the mall the week before.
This statement is slightly misleading, as neither parent testified that Donald had left his backpack at the mall on this particular occasion.
We review the lower court’s decision, in the light most favorable to the prosecution, to determine whether there was substantial evidence to support the conclusion that Donald was guilty beyond a reasonable doubt. (People v. Maury (2003) 30 Cal.4th 342, 397.)
To prove receipt of stolen property, the prosecution must show: “(1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property.” (People v. Land (1994) 30 Cal.App.4th 220, 223, citing Pen. Code, § 496, subd. (a).) There is no question that the first element is met, as the fire extinguishers and wallet were obviously stolen.
Knowledge that property is stolen -- the second element -- can be inferred from possession, when possession is accompanied by suspicious circumstances (People v. Roland (1969) 270 Cal.App.2d 639, 647, citing People v. Bugg (1962) 204 Cal.App.2d 811, 817), so we address this third element -- possession -- first.
Possession can be actual or constructive. (People v. Jolley (1939) 35 Cal.App.2d 159, 162.) It may be established by direct or circumstantial evidence, or by reasonable inference from the circumstances. (People v. Johnson (1980) 104 Cal.App.3d 598, 606.) However, possession requires more than simply an opportunity to access a location containing contraband: It requires dominion and control, which “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, ital. added.)
Donald maintains that this “something more” was lacking: That is, he argues that while the prosecution showed he was present near the backpack and had an opportunity to access it, it did not show he actually asserted control over it. He makes much of the lack of direct evidence that he was present when the extinguishers and wallet were placed in the backpack or that he put them there himself, comparing himself to a passenger in a stolen car (see In re Anthony J. (2004) 117 Cal.App.4th 718, 729 [passenger did not have possession of stolen car where he was not friends with the driver, had not committed past crimes with the driver, was not in the car when it was stolen and had not used the car to commit crimes jointly with the driver]). Donald cites various cases in support of his argument: In re Anthony J., supra, 117 Cal.App.4th at p. 729; People v. Martin (1973) 9 Cal.3d 687, 695-696 [stolen machine in trunk of defendant’s car was not sufficient to establish possession of similar machines in his associate’s trunk]; People v. Myles (1975) 50 Cal.App.3d 423, 429 [defendant did not have possession of stolen television sets found in the trunk of a car in which he was a passenger]; and Zyduck, supra, 270 Cal.App.2d at p. 336 [defendant did not have possession of stolen chain saw in the back seat of car in which he was a passenger].
None of this authority is helpful, however, since Donald’s situation is not remotely like that of a passenger in someone else’s car.
The “something more” offered by the record is thus: When the security guard confronted him, Donald was standing in the exact spot where his backpack was found. He quickly walked toward the guard when he was discovered, but the backpack stayed behind. He claimed he was at the mall looking for his backpack, but, inexplicably, he could not find it. It is virtually impossible that Donald was not able to locate his own backpack, lying at or near his feet. It is also difficult to explain why Donald, standing over his backpack, would walk away from it when confronted by mall security. The reasonable inference is that he knew it contained items of stolen property, and wanted to disassociate himself from it.
III. DISPOSITION
The judgment is affirmed.
WE CONCUR: O’LEARY, J., MOORE, J.