Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Tulare County No. JJD060696, Valeriano Saucedo, Judge.
Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Levy, J., and Cornell, J.
Appellant Cesar H., a minor, has been the subject of three juvenile wardship proceedings. In the first (proceeding No. 1), in June 2006 appellant admitted allegations that he committed three offenses, viz., disturbing the peace (Pen. Code, § 415; count 3), vandalism (§ 594, subd. (a); count 4) and carrying a concealed dirk or dagger on his person (§ 12020, subd. (a)(4); count 5), and that in committing each offense, he acted for the benefit of, at the direction of, or in association with, a criminal street gang, within the meaning of section 186.22, subdivision (d) with respect to counts 3 and 4, and within the meaning of section 186.22, subdivision (b)(1)(A) with respect to count 5. Later in June 2006, the court adjudged appellant a ward of the juvenile court, placed him on probation and ordered him committed to the Probation Youth Facility.
Except as otherwise indicated, all statutory references are to the Penal Code.
In October 2006, appellant, in his second wardship proceeding, admitted an allegation that he committed battery (§ 242). Later that month, the court continued appellant on probation and ordered him committed to the Tulare County Youth Correctional Center (YCC).
A third wardship petition was filed in May 2007. In July 2007, following a contested jurisdiction hearing, the court found true allegations that appellant possessed a firearm (§ 12101, subd. (a)(1); count 2), and that in committing that offense, he violated his probation. Later that month, the court ordered appellant committed to the YCC and declared appellant’s maximum period of physical confinement to be nine years. In September 2007, appellant filed his notice of appeal.
On appeal, appellant contends (1) the evidence was insufficient to support his adjudication of possession of a firearm in the most recent wardship proceeding, and (2) the court failed to declare whether each of the offenses of which appellant was adjudicated in proceeding No. 1 was a felony or misdemeanor, in violation of Welfare and Institutions Code section 702 (section 702). We will affirm.
FACTS
On May 4, 2007, Tulare County Probation Officer Nicholas Nino went to appellant’s home for the purpose of making a routine determination as to whether appellant, who was on probation, was complying with the terms and conditions of probation. Initially, the officer made contact with appellant’s brother, Luis H. (Luis), who allowed the officer to enter the residence.
Except as otherwise indicated, our factual statement is taken from Officer Nino’s testimony.
Once Officer Nino was inside, Luis called out to appellant, who came out of his bedroom and joined Luis and the officer in the living room. The officer told appellant he was there to “see how [appellant] was doing” and he (the officer) “wanted to check [appellant’s] room.” In response, appellant “made a comment like, ‘oh, shit,’ something to that effect.”
Thereafter, the officer, appellant and Luis entered appellant’s bedroom. There were two beds in the room, and appellant indicated which one was his. Officer Nino looked underneath the mattress of that bed and found a “semi automatic weapon.” Appellant “reacted [with] surprise[].”
On May 8, 2007, Officer Nino questioned appellant at juvenile hall. At that time appellant stated the gun found in his bedroom was not his, it belonged to his brother and his brother “had called him and told him [so].”
The gun was never checked for fingerprints.
Shortly after he “secured the weapon,” Officer Nino became aware that appellant’s mother and sister had entered the house. Appellant’s sister, N.H., testified to the following. She arrived shortly after Officer Nino. While standing in the kitchen, she saw appellant, Luis and Officer Nino in the bedroom. The officer said he was “going to check the room,” and then told appellant to “stand by the wall.” At that point, “[appellant said] ‘Oh, shit.’ And then he looked at Luis and he told him, ‘What did you do?’” Appellant “looked surprised.”
Defense investigator Julian Almanza testified to the following. On June 13, 2007, he made contact by telephone with Luis, who was in Southern California. Luis told Almanza that he “found [a gun] in a ditch while he was working in the fields,” and he brought it home, placed in under appellant’s mattress and forgot about it.
DISCUSSION
Sufficiency of the Evidence -- Possession of a Firearm
Appellant contends the evidence was insufficient to establish appellant knew the gun found under his mattress was there and that therefore his adjudication of possession of a firearm in the 2007 wardship proceeding cannot stand.
“Possession may be actual or constructive. Actual possession means the object is in the defendant’s immediate possession or control. A defendant has actual possession when he himself has the weapon. Constructive possession means the object is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.)
Constructive possession may be found “[w]hen contraband is found in a place where a defendant and others have access and over which none have exclusive control.” (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) However, although when contraband is found in such a place “‘no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendant’s knowledge of the presence of [contraband]’” (id. at p. 345, citing People v. Redrick (1961) 55 Cal.2d 282, 287), “‘proof of opportunity of access to a place where [contraband is] found, without more, will not support a finding of possession’” (id. at p. 346).
In general, in determining whether the evidence is sufficient to support a finding in a juvenile court proceeding, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of adult criminal convictions. (In re Roderick P. (1972) 7 Cal.3d 801, 809.) Those principles include the following: “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.’” (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) “‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’” (People v. Bean (1988) 46 Cal.3d 919, 933.) “‘“If the circumstances reasonably justify the trier of fact’s 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.””’ (People v. Kraft (2000) 23 Cal.4th 978, 1054.) “Even when there is a significant amount of countervailing evidence, the testimony of a single witness that satisfies the standard is sufficient to uphold the finding.” (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
However, “‘“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. Cluff (2001) 87 Cal.App.4th 991, 1002, quoting People v. Morris (1988) 46 Cal.3d 1, 21.) “Evidence which merely raises a strong suspicion of the defendant’s guilt is not sufficient to support a conviction.” (People v. Redmond (1969) 71 Cal.2d 745, 755.)
Appellant argues the evidence was insufficient to establish he knew of the gun’s presence in his bedroom because others -- appellant’s brother, sister and mother -- had access to the room, and under these circumstances “[i]t is pure conjecture” that appellant, as opposed to one of these other persons, “had placed the gun [in appellant’s bedroom].” We disagree.
We find instructive People v. Hutchinson, supra, 71 Cal.2d 342. In that case, the mother of the 18-year-old defendant discovered marijuana in a closet and under a bed in a bedroom that the defendant shared with two brothers and a step-brother. Two of these boys were “away on vacation” (People v. Hutchinson, supra, 71 Cal.2d at p. 344) in the week preceding the discovery of the contraband, but the night before the discovery “friends of defendant and his brothers and sisters had visited the … house for a swimming party” and “[t]he boys who attended such swimming parties dressed and undressed in the … bedroom [where the marijuana was found]” (id. at p. 345). Our Supreme Court stated that if the evidence had shown only that the marijuana was hidden where it was found in the shared room, a finding of unlawful possession would not be supported. (Id. at pp. 345-346.) However, the fact that the defendant fled through his bedroom window when his mother threatened to call the police was sufficient additional evidence from which to draw an inference of consciousness of guilt, thereby justifying the giving of a jury instruction on the significance of flight. (Id. at p. 346.) The court stated: “The jury was not required to accept defendant’s explanation that his flight was motivated only by a wish to escape from his mother’s emotional outburst. The jury could reasonably infer that his flight reflected consciousness of guilt and that he therefore knowingly possessed the marijuana found in the bedroom and closet.” (Ibid.)
In the instant case, the juvenile court reasonably could have credited Officer Nino’s testimony that when the officer stated his intention to search appellant’s room, appellant responded with an expletive. And from this evidence, the court reasonably could have drawn the inference that appellant’s utterance was an expression of dismay at the prospect of a search of his room, indicating, as did the flight evidence in Hutchinson, consciousness of guilt. The juvenile court was not compelled to accept the interpretation offered by appellant, viz., that he was merely expressing surprise that there was a gun under his mattress. (Cf. People v. Hutchinson, supra, 71 Cal.2d at p. 346.) Here, as in Hutchinson, the consciousness-of-guilt evidence and the evidence of the presence of the contraband in the bedroom of the accused, considered in conjunction, constituted substantial evidence that the accused knew of the presence of the contraband.
Appellant also challenges the sufficiency of the evidence supporting his adjudication of possession of a firearm on the grounds that other evidence, viz., (1) Luis’s statement that he put the gun under appellant’s mattress, and (2) the testimony of appellant’s sister that appellant expressed shock when the officer found the gun, renders the court’s finding that appellant knowingly possessed the gun nothing more than “‘speculation, supposition and guesswork[.]’” This contention too is without merit. The evidence cited by appellant militated in favor of, but it did not compel the court to draw, the inference that Luis, unbeknownst to appellant, placed the gun under appellant’s mattress. (Cf. People v. Hutchinson, supra, 71 Cal.2d at p. 346.) As indicated above, it is of no moment that the circumstances might be reconciled with a finding contrary to that reached by the juvenile court if substantial evidence supports the court’s finding. (People v. Kraft, supra, 23 Cal.4th at p. 1053.) And here, as demonstrated above, the court’s finding that appellant knowingly possessed the gun found under his mattress was supported by substantial evidence.
Section 702 provides, in relevant part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” The purpose of section 702 is two-fold: (1) to “provid[e] a record from which the maximum term of physical confinement for an offense can be determined, particularly in the event of future adjudications” (In re Manzy W. (1997) 14 Cal.4th 1199, 1205), and (2) to “ensure[e] that the juvenile court is aware of, and actually exercises, its discretion under . . . section 702.” (Id. at p. 1207.)
Appellant argues as follows: each of the three offenses of which he stands adjudicated in proceeding No. 1 would, in the case of an adult, be punishable alternatively as a felony or a misdemeanor; the court was therefore required to declare pursuant to section 702 that each such offense was either a misdemeanor or felony; the court failed to do so; the record does not demonstrate the court was aware of its section 702 discretion; and therefore this court should remand the matter to the juvenile court for the statutorily required declarations. We need not reach the merits of appellant’s claim, however, because, as we explain below, it is not cognizable on appeal.
California Rules of Court, rule 5.790(a)(1) provides, in relevant part: “At the disposition hearing: [¶] (1) If the court has not previously considered whether any offense is a misdemeanor or felony, the court must do so at this time and state its finding on the record.” Thus, the section 702 declaration for an offense must be made no later than the disposition hearing in the proceeding in which that offense is adjudicated. Moreover, the disposition order is an appealable order (In re Melvin S. (1976) 59 Cal.App.3d 898, 900), and a minor appellant must file a notice of appeal within 60 days after the juvenile court issues an appealable order (rule 5.585(a) and (f)). Therefore, in order to challenge a court’s failure to comply with section 702, a minor must file a notice of appeal within 60 days after the disposition order. “If a party fails to appeal an appealable order within the prescribed time, this court is without jurisdiction to review that order on a subsequent appeal.” (In re Marriage of Lloyd (1997) 55 Cal.App.4th 216, 219; accord, Mauro B. v. Superior Court (1991) 230 Cal.App.3d 949, 953.)
All rule references are to the California Rules of Court.
Here, on June 6, 2006, appellant admitted counts 3, 4 and 5 in proceeding No. 1, and on June 22, 2006, the court held the disposition hearing. The record before us contains no indication that appellant filed a notice of appeal within 60 days of the disposition order, and the instant appeal, filed September 28, 2007, is, of course, untimely with respect to proceeding No. 1. Therefore, at this point, this court lacks jurisdiction to address appellant’s claim that the juvenile court failed to comply with section 702 with respect to his adjudications in that proceeding.
Appellant contends his challenge to the court’s failure to comply with section 702 in proceeding No. 1 is properly before us because the court in that proceeding failed to advise appellant of his right to appeal, in violation of his constitutional right to equal protection of the laws. Appellant bases this argument on In re Arthur N. (1974) 36 Cal.App.3d 935.
In that case, the minor suffered an adjudication of an offense following a contested jurisdiction hearing and was committed to the California Youth Authority. However, at no time did the juvenile court advise the minor of his appeal rights. At that time, former rule 250 required that a sentencing court advise a convicted adult of his or her appeal rights “‘[a]fter imposing sentence in a criminal case upon conviction after trial ….’” (In re Arthur N., supra, 36 Cal.App.3d at p. 939.) In an original habeas corpus proceeding, the court of appeal held that a juvenile was entitled to the same advice about appellate rights as an adult charged with a criminal offense and that the failure to so advise the juvenile denied him equal protection of the laws. The court found support for its conclusion in the adoption of former rule 251, which occurred well after the minor’s disposition hearing. That rule, reflecting a “tacit understanding” of the need to “end such inequality,” provided that a juvenile court was required to advise a minor of his or her appeal rights after the minor was found a minor found to be a person coming within the jurisdiction of the juvenile court based on an adjudication of a criminal offense “after a contested issue of fact or law.’” (In re Arthur N., supra, 36 Cal.App.3d at p. 940.)
Arthur N. is inapposite. The substance of rule 250 is contained now in rule 4.305 which, like its predecessor, requires the court to advise an adult criminal defendant of appellate rights upon conviction after trial; the rule does not apply when a defendant is sentenced after entering a plea of guilty. (Cf. People v. Serrano (1973) 33 Cal.App.3d 331, 338 [former rule 250 inapplicable where defendant pled guilty]; In re Chadwick (1982) 137 Cal.App.3d 173, 179-180 [same].) And former rule 251 has been replaced by rule 5.590, which, like its predecessor, requires that a minor be advised of his or her appeal rights “[i]n juvenile court proceedings in which the child is found to be a person described by [Welfare and Institutions Code] section … 602 after a contested issue of law or fact ….” (Rule 5.590, italics added.) This rule does not apply where a minor’s adjudication is based on an admission. (Cf. In re Chadwick, supra, 137 Cal.App.3d at pp. 179-180 [“in the case of a plea or admission, no … advice [of appellate rights] is required as rules [former] rules 250 and 251 are expressly limited to a trial or hearing of contested issues”].)
As indicated above, appellant admitted committing the offenses of which he stands adjudicated in proceeding No. 1. Under those circumstances, as in the case of an adult convicted after a trial, there was no requirement that appellant be advised of his appellate rights. Therefore, any failure to advise appellant of those rights in proceeding No. 1 violated neither appellant’s equal protection rights nor rule 5.590.
DISPOSITION
The judgment is affirmed.