Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. J216177., Ronald L. Johnson (Retired Judge of the San Diego Sup. Court assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.).
AARON, J.
I.
INTRODUCTION
The juvenile court declared Cecil J. a ward of the court (Welf. & Inst. Code, § 602) after sustaining allegations that he received stolen property, possessed a weapon known as a "billy," and possessed a concealable firearm. The court ordered Cecil committed to the Breaking Cycles program for a maximum 240 days and ordered that he be held jointly and severally liable for $12,786.90 in restitution to the victim whose property was stolen. Cecil contends that there was insufficient evidence to support the court's true findings with regard to the allegations that he possessed a billy and a concealable firearm. He further contends that the trial court erroneously admitted improper character evidence by failing to strike a police officer's testimony to the effect that Cecil had tried to "jack" another person in the recent past. Finally, Cecil asserts that the trial court should not have ordered that he be held jointly and severally liable for the full amount of restitution for the victim's losses because, he contends, he was not convicted of actually taking the victim's property, and all of the stolen property that he received was recovered and returned to the victim.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
On March 16, 2008, Kamar Robinson and juveniles Angel R. and Felipe Z. burglarized Alfredo Cruz's home while Cruz was out. When Cruz returned, he noticed Robinson, who was his neighbor, acting suspiciously. Cruz believed that Robinson had burglarized his home on a prior occasion. On the basis of Cruz's suspicion that some criminal activity had again taken place, Cruz's son called the police. Cruz entered his home with police and found that a number of items were missing, including three plasma television sets, computers, video games, and jewelry.
Police officers located some of the stolen items in Robinson's backyard and in his home. Police also found Angel R. and Felipe Z. inside Robinson's home. Angel R. informed a police officer that he had called Cecil to ask him to come over and retrieve some of the stolen property so that Angel R. and the others who had stolen the items would be less likely to be noticed and caught. Angel R. told the officer that he and the others loaded up Cecil's car with some of the stolen property, including three laptops, two plasma televisions, and three gold bracelets.
Police officers went to Cecil's home, where he lived with his mother, his sister, and his sister's three children. Their home was a small one-bedroom house. Cecil, his mother and his sister all told officers that the bedroom was Cecil's room. The other family members apparently slept in the living room.
Cecil told a police officer that Angel R. had called Cecil and told him that he had just been "kicked out of his house" and that "he needed somewhere to store" the items that Cecil picked up from him. Cecil admitted that he had driven his sister's car without her permission to Robinson's house to meet Angel R., and that he had taken a number of items from Angel R.
In the bedroom, officers found a laptop computer under dirty laundry in a hamper, a television under the bed, and some gold bracelets on an entertainment center. Officers also found a stick, approximately two and one-half feet in length, with a rubber handle. The stick was completely covered with tape. At trial, the officers testified that, based on their experience, the stick was intended to be used as a billy. One officer opined that the tape helps to keep the stick intact, and could be removed if the stick were to become covered with blood. Another officer testified that the stick's "definitive handle" also suggested that the stick was intended to be used as a weapon. Cecil told the officers that the stick belonged to his sister's boyfriend.
The officers' testimony differed with respect to where the stick had been located when they found it. One officer testified that the stick was found behind the dresser in the bedroom, while another officer testified that he found the stick behind a "gray container that had the children's clothes in it" in the bedroom.
The officers also found a shotgun in the closet in Cecil's room. Cecil acknowledged to officers that he knew the shotgun was in the closet, but he denied that it belonged to him.
Officers also searched the car that Cecil used to transport the stolen items. In the car, they found some of Cruz's property, including two plasma televisions, three computers, some games that belonged to Cruz's children, a stereo and some sweatshirts.
Cecil's mother testified that there was only one closet in the house, the closet in Cecil's bedroom, and that the entire family used the closet to store, among other things, family members' clothing, towels, shoes, books, papers, and toys. Cecil's mother indicated that the stick had been in the home when the family moved in, and that she used it to hold up a shelf in the closet. She also testified that she had put the shotgun, which belonged to her late husband, in the closet. She said that the shotgun had not been loaded for 25 years, and that she did not have any bullets or shells for it in the house.
Cecil testified on his own behalf. He admitted having picked up the stolen items from Angel R., but denied knowing that the property was stolen. Cecil testified that Angel R. had told Cecil that he had been kicked out of his home. Cecil denied having told officers that the stick belonged to his sister's boyfriend.
B. Procedural background
On March 18, 2008, the San Diego County District Attorney's Office filed a juvenile petition that alleged that Cecil had received stolen property (Pen. Code, § 496, subd. (a) (count 1)), possessed a billy (Pen. Code, § 12020, subd. (a)(1) (count 2)), and possessed a concealable firearm (Pen. Code, § 12101, subd. (a)(1) (count 3)).
Following an adjudication hearing on April 29, 2008, the court sustained the petition and determined each count to be a felony. The court committed Cecil to the Breaking Cycles program for a period not to exceed 240 days, and ordered that Cecil be held jointly and severally liable for victim restitution in the amount of $12,786.90. Cecil filed a timely notice of appeal.
III.
DISCUSSION
A. There is substantial evidence to support Cecil's convictions on counts 2 and 3
Cecil challenges the sufficiency of the evidence to support his convictions on count 2 (possession of a billy) and count 3 (possession of a firearm). With regard to count 2, Cecil contends that there was insufficient evidence that the stick that police officers found was intended to be used as a weapon. With regard to count 3, he asserts that there is insufficient evidence to establish that he knowingly possessed a firearm. We find these contentions to be without merit.
1. Legal standards
"'To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' [Citations.]" (People v. Wallace (2008) 44 Cal.4th 1032, 1077.) Where the fact-finder's findings " 'rest to some degree upon circumstantial evidence, we must decide whether the circumstances reasonably justify those findings, "but our opinion that the circumstances also might reasonably be reconciled with a contrary finding" does not render the evidence insubstantial.' [Citation.]" (Ibid.)
2. There is substantial evidence to support the trial court's finding that Cecil unlawfully possessed a firearm
Cecil maintains that the People "failed to provide any evidence whatsoever that Cecil had actual or constructive possession of the shotgun in the family closet." Cecil argues that the fact that the gun was kept in a closet that the entire family used meant only that there was a possibility that he had access to the gun, which, he contends, is insufficient to establish possession.
Penal Code section 12101, subdivision (a)(1) prohibits minors from possessing "a pistol, revolver, or other firearm capable of being concealed upon the person." "Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.]" (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) "Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]" (Ibid.) Although " '[proof] of opportunity of access' " to a prohibited item " 'without more, will not support a finding of unlawful possession,' " unlawful possession " ' " 'may be imputed when the [prohibited item] is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control' [citation] or which is subject to the joint dominion and control of the accused and another [citations]." [Citation.]' " (Goodlow v. Superior Court (1980) 101 Cal.App.3d 969, 975.) Thus, evidence that a defendant merely had access to the place where contraband is located is insufficient to support a finding of possession. However, evidence that the defendant exercised exclusive or joint dominion and control over the place where contraband is found can support a finding of possession.
The People presented evidence that Cecil exercised control over the place where the gun was found. The court could therefore infer that Cecil also exercised dominion and control over the gun. The prosecution presented evidence that the closet in which the gun was found was located in Cecil's bedroom, and that he had the right to exercise dominion and control over the closet. Testimony of various witnesses established that Cecil kept clothes in the closet, that he used the closet, that he had unfettered access to it, and that he exercised control over the closet. Even if one were to assume that the gun had been obscured by clothing, Cecil admitted to a police officer that he knew the shotgun was in his closet. The fact that Cecil shared control over the closet with his mother and sister does not prevent the court from inferring that Cecil constructively possessed the gun.
Further, even if Cecil's nonexclusive dominion and control over the closet was insufficient to support a finding of constructive possession, there were other evidentiary factors to support the court's finding. For example, when police officers asked Cecil about the gun, he acknowledged that he knew the gun was in the closet, but said that it did not belong to him. However, at trial, Cecil testified that he had never seen the shotgun and did not know that it was in his house. Cecil's inconsistent stories concerning the gun constitute evidence from which a fact finder could infer consciousness of guilt. The evidence of Cecil's consciousness of guilt, combined with evidence that he exercised dominion and control over the place where the shotgun was found, constituted substantial evidence supporting the trial court's finding that Cecil possessed the gun. (See People v. Hutchinson (1969) 71 Cal.2d 342, 346 [finding sufficient evidence of narcotics possession where marijuana was found in a closet of the bedroom the defendant shared with brothers and guests and where the defendant fled from his home after being confronted by his mother].)
3. There is substantial evidence to support the court's finding that Cecil unlawfully possessed a billy
Penal Code section 12020, subdivision (a)(1) prohibits the possession of "any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag." The Supreme Court in People v. Grubb (1965) 63 Cal.2d 614 (Grubb), interpreted the statute to prohibit the possession of not only "the classic instruments of violence and their homemade equivalents," but the "possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless, purpose. [Citation.]" (Id. at pp. 620-621, fn. omitted.)
Although "the presence of suspicious circumstances attendant to possession of the proscribed object does not forge an ironclad case against defendant," the burden to "demonstrate an innocent usage of the object... falls upon him." (Grubb, supra, 63 Cal.2d at p. 621, fn. omitted.) "The prosecution need not show the intent of the possessor to use an instrument in a violent manner. [Citation.] [However, a] defendant... may justify his possession of an instrument found under suspicious circumstances by proof of his intent to use it in accordance with its ordinary legitimate design." (Id. at p. 622, fn. 9.)
Here, there was sufficient evidence to support the court's finding that Cecil's possession of the stick violated the statute. Two officers testified about the unusual nature of the stick. The entire stick was covered in tape, and there was a four-inch handle attached to one end. One officer testified that he had been trained to recognize objects that were intended to be used as weapons, and that in his opinion, the stick was, in fact, a weapon. He based his opinion on the fact that he had seen crime scenes where people had been beaten with wooden objects, that the stick had "a definitive handle where you would grip the object," and that it was "wrapped in tape." In the officer's experience, the tape is often "used to bolster the grip; but also in case there is any blood that gets on there, they can unwrap the tape so there is no blood on the actual weapon itself."
Another officer testified that he believed the stick was a "billy club" because it "has a grip handle known to be used to strike an object because it has that handle and just the way it was customized with a tape covering the whole stick." The tape would ensure that the "stick will remain intact."
This testimony, alone, constitutes significant evidence that the stick was intended to be used for a dangerous, not innocent, purpose. However, there was additional evidence supporting the court's conclusion that the stick was a billy. According to one of the police officers, when initially confronted at the scene, Cecil told the officer that the stick "was his sister's boyfriend's." However, at trial, Cecil denied having told officers that the stick belonged to his sister's boyfriend. Cecil also testified inconsistently at trial with respect to how many times he had seen the stick―sometimes saying he had seen it only once, while at another point saying that he had seen it "a couple of times" The trial court was free to find Cecil not credible. Further, the fact that Cecil initially lied about the stick by saying that it belonged to someone else is evidence of consciousness of guilt; there would be no need to claim that the stick belonged to his sister's boyfriend if it had truly been used for the innocent purpose that the defense offered at trial—i.e., to prop up a shelf in the closet.
Moreover, although Cecil's mother testified that the stick had been in the closet when the family moved into the home (which was approximately 10 or 11 months before officers found the stick in Cecil's room), and that it had remained in the closet to prop up a sagging shelf in the closet in Cecil's room, Cecil testified that he had seen the stick only once or a few times. In addition, Cecil's sister testified that she had looked through the closet for her and her children's clothes, and that she had never seen the stick in the closet. Further, one officer testified that he had found the stick in the bedroom, not inside the closet. Based on these inconsistencies, the court was free to reject Cecil's and his mother's testimony regarding an innocent purpose for the stick, and to infer from Cecil's inconsistent statements that there was no innocent explanation for the presence and condition of the stick, and that, as the officers testified, the stick was intended to be used as a billy.
We conclude that there is substantial evidence to support the trial court's true finding that Cecil violated section 12020, subdivision (a)(1) by being in possession of a billy.
B. The court committed harmless error in not striking a police officer's testimony that Cecil had attempted to "jack" someone.
Cecil contends that the trial court erred in failing to strike the testimony of Officer Paul Galante that Cecil had tried to "jack" a boy named Milo. According to Cecil, the officer's testimony constituted improper character evidence that, he maintains, was introduced in an improper attempt to link him to the "alleged billy."
During defense counsel's cross-examination of Officer Galante concerning whether the yardstick that police found was a "billy," the following colloquy occurred:
"Q. So could you tell us then, since you've never seen anything like this before, what in your training and experience leads you to believe that this is a weapon?
"A. A couple of things. I don't need to see a gun to recognize that it's a gun. Your client, Mr. J[.] tried to jack somebody by the name of Milo a couple weeks before that.
"MR. SCHEAR: Objection. Your Honor.
"THE WITNESS: But Milo was a gangster. He probably was in need of protection against him.
"MR. SCHEAR: Objection, your Honor. I ask that be stricken. This officer is talking about hearsay. He is trying to introduce other crimes that have nothing to do with the question of the stick.
"THE COURT:... The question was 'What in your training and experience leads you to believe that this is a weapon?' And so he is answering your question.
"MR. SCHEAR: Well, what did he say, your Honor, that had to do with that question?"
"MR. CAMPBELL: I believe he also asked him what exactly about this item led him to believe it was a weapon.
"THE COURT: 'What in your training and experience leads you to believe that this is a weapon.' So I think he was trying to answer your question....
"MR. CAMPBELL: I believe he was, your Honor.
"[¶]... [¶]
"MR. SCHEAR: Unless this officer has some information that my client used this stick in some kind of previous crime, I don't want to hear about any other previous crimes and I want them excluded. That is character evidence.
"THE COURT: Mr. Schear, I'm just looking at what the question was and what the response was to the question. That's all.
"THE WITNESS: May I continue with my answer?
"THE COURT: No. You have to wait for the next question."
After this exchange, defense counsel continued questioning the witness without further reference to this testimony. The court never ruled on the objection.
The People concede that Officer Galante's statement concerning Cecil's attempt to "jack" Milo should have been stricken. However, the People assert that the court's failure to strike that testimony was harmless under the circumstances. The People suggest that the applicable standard of review for prejudice is that announced in People v. Watson (1956) 46 Cal.2d 818, while Cecil contends that applicable standard is the harmless beyond a reasonable doubt standard announced in Chapman v. California (1967) 386 U.S. 18. We conclude that under either standard, the court's failure to strike the challenged statements did not unfairly prejudice Cecil.
Cecil also asserts that the error rendered the trial fundamentally unfair, and thus violated his right to due process under the United States Constitution. However, he has not provided any reasoned argument as to why the admission of this evidence rendered his trial fundamentally unfair.
Officer Galante's statement that Cecil tried to "jack" someone was vague and insubstantial. In addition, it is not at all clear that the statement evidenced that Cecil had a propensity to commit crimes or engage in violence, since the officer also stated that it was likely that Cecil needed to protect himself from Milo, not the other way around. In addition, this was not overly sensational evidence, or evidence that would be likely to evoke an emotional response from the court. That the fact finder in this case was a judge, not a jury, is further reason for us to conclude that the admission of the challenged statement did not affect the outcome of this case. There was abundant evidence that demonstrated that the stick was a weapon. We conclude beyond a reasonable doubt that the trial court would have sustained the allegation in count 2 even if the court had never heard Officer Galante's statement that Cecil had tried to "jack" someone.
C. The court did not err in ordering that Cecil be held jointly and severally liable for the victim's remaining losses
Cecil contends that the trial court erred in ruling that he be held jointly and severally liable for full restitution to the victim. Cecil asserts that he cannot be ordered to pay restitution to the victim because he was not found to have committed the burglary, and because all of the stolen property that he received from Angel R. was recovered and returned to the victim. Cecil contends that he did not cause the victim's economic loss, and that he thus should not be required to pay restitution to the victim.
As an initial matter, the People contend that Cecil forfeited this argument by failing to object to the restitution order in the trial court. Cecil does not respond to this contention. We agree that Cecil should have raised this issue in the trial court, and that he has therefore forfeited it. However, the argument fails on its merits, as well.
The People assert that Cecil "waived" the claim on appeal. However, this situation presents a circumstance more appropriately falling within the doctrine of forfeiture. "[T]he terms 'waiver' and 'forfeiture' have long been used interchangeably. The United States Supreme Court has observed, however: '[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the "intentional relinquishment or abandonment of a known right." [Citations.]' [Citation.]" (People v. Saunders (1993) 5 Cal.4th 580, 590, fn. 6.)
When a ward of the juvenile court is placed on probation, the juvenile court "may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." (Welf & Inst. Code, § 730, subd. (b).) In furtherance of these goals, Welfare & Institutions Code section 730.6 requires the court to order a minor to pay restitution to a victim who incurs an economic loss as a result of the minor's conduct. Restitution "can be a valuable tool of rehabilitation." (Charles S. v. Superior Court (1982) 32 Cal.3d 741, 748.) In this sense, restitution not only compensates crime victims but "impresses upon the offender the gravity of the harm he has inflicted upon another...." (Ibid.) "[R]estitution can, if proper in the circumstances, lead the minor to realize the seriousness of his crime, and to accept the responsibility for it." (Ibid.)
The juvenile court has broad discretion to impose reasonable conditions of probation. (In re Daniel R. (2006) 144 Cal.App.4th 1, 6.) The power of the juvenile court to exercise its discretion in imposing probation conditions " 'is even broader than that of a criminal court.' " (In re Christopher M. (2005) 127 Cal.App.4th 684, 692.) We review a restitution order for an abuse of discretion. (In re Johnny M. (2002) 100 Cal.App.4th 1128, 1132.) In doing so, we recognize that "[a] victim's restitution right is to be broadly and liberally construed." (People v. Mearns (2002) 97 Cal.App.4th 493, 500.)
We conclude that the court did not abuse its discretion in determining that Cecil should be jointly and severally liable for the full $12,786.90. "[T]he court may use any rational method of fixing the amount of restitution, provided it is reasonably calculated to make the victim whole, and provided it is consistent with the purpose of rehabilitation." (Brittany L., supra, 99 Cal.App.4th at pp. 1391-1392, fn. omitted.) This restitution order was reasonably calculated to make the victim whole, and was consistent with the purpose of rehabilitating Cecil.
Cruz provided evidence that his unrecovered property, which included a plasma television and "several items of jewelry," was worth $12,786.90. Cruz's loss was reasonably related to Cecil's conduct in assisting the burglars in their attempt to permanently deprive the victim of his property. The trial court clearly did not believe Cecil's contention that he was unaware that the property he picked up from Angel R. had been stolen, and the evidence demonstrated that Cecil knew that he was accepting stolen property. Cecil picked up the property from Robinson's house, not Angel R.'s house, even though he claimed that Angel R. told him that he had been kicked out of his home. There was also evidence that Cecil was not storing the items for Angel R., but that he planned to benefit from the burglary himself; at the time of his arrest, he had already arranged to sell some of the stolen items to his sister. Cecil became involved almost immediately after the burglary occurred and took a large amount of the stolen property to his house and hid it there. From the evidence, the court could reasonably infer that Cecil played a significant role in the burglary. There was thus a substantial nexus between Cecil's conduct and Cruz's property loss.
Even if all of the stolen property that Cecil retrieved from Angel R. was eventually recovered—a fact that is not clear from the record—Cecil's role in the criminal endeavor to deprive Cruz of his property was significant. Requiring Cecil to pay restitution to make Cruz whole will impress upon him the consequences of his participation in this kind of criminal endeavor and will serve to discourage him from engaging in similar conduct in the future. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1124 (Carbajal) [" 'Restitution is an effective rehabilitative penalty because it forces the defendant to confront, in concrete terms, the harm his actions have caused.' "].)
We find unpersuasive Cecil's argument that he cannot be liable for Cruz's loss because he did not burglarize the Cruz residence. " ' "[T]here is no requirement the restitution order be limited to the exact amount of the loss in which the defendant is actually found culpable, nor is there any requirement the order reflect the amount of damages that might be recoverable in a civil action...." [Citation.]' " (In re Brittany L., (2002) 99 Cal.App.4th 1381, 1391 (Brittany L.); Carbajal, supra, 10 Cal.4th at p. 1121[restitution appropriate even when the loss was not necessarily caused by the criminal conduct underlying the conviction and where the loss may be traced to uncharged or dismissed counts, or to charges of which a defendant is acquitted.]; see also In re I.M. (2005) 125 Cal.App.4th 1195, 1210.) Cecil assisted the burglars in fulfilling their criminal goals, and the restitution order serves a rehabilitative purpose. Accordingly, we conclude that the court did not abuse its discretion in ordering that Cecil be held jointly and severally liable for Cruz's economic losses.
IV.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., McINTYRE, J.