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In re Gabriel R.

California Court of Appeals, Fourth District, First Division
Mar 27, 2008
No. D050705 (Cal. Ct. App. Mar. 27, 2008)

Opinion


In re GABRIEL R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. GABRIEL R., Defendant and Appellant. D050705 California Court of Appeal, Fourth District, First Division March 27, 2008.

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. JCM210841, Francis M. Devaney and Lawrence Kapiloff, Judges.

McDONALD, J.

A juvenile court found true beyond a reasonable doubt that Gabriel R. carried a concealed firearm within a vehicle under his control (Pen. Code, § 12025, subd. (a)(1), count 4), carried a loaded firearm in a vehicle (§ 12031, subd. (a)(1), count 5), as a minor possessed a concealed firearm (§ 12101, subd. (a)(1), count 6), and as a minor possessed live ammunition (§ 12101, subd. (b)(1), count 7). The court placed Gabriel on probation in his parents' care and ordered he pay a fine of $119. (Welf. & Inst. Code, § 730.5.) The court stayed the fine pending Gabriel's successful completion of probation.

Statutory references are to the Penal Code unless otherwise specified.

On appeal, Gabriel contends the evidence is insufficient to support the true findings on counts 4 through 7. Alternatively, Gabriel argues that the court erred by finding counts 6 and 7 true because they are lesser included offenses of counts 4 and 5, respectively. He also contends the court erred by not making a finding of Gabriel's ability to pay the fine and by not correctly calculating the maximum term of the theoretical period of confinement. We conclude the evidence is insufficient to establish beyond a reasonable doubt that Gabriel knowingly carried or possessed a firearm or ammunition and therefore reverse the true findings on counts 4 through 7.

FACTS

On February 3, 2007, San Diego Police Officer Randy Burgess responded to a report of gunshots heard in the area of 33rd Street and K Street. When Burgess arrived in the area at approximately 2:30 a.m., he saw three young men sitting in a parked car. Gabriel R. was sitting in the front passenger seat, one youth was sitting in the driver's seat and the other was sitting in the rear seat. Burgess obtained permission to search the car and found a loaded handgun under the front passenger seat. Burgess could not see the handgun until he looked under the seat. The passenger in the front seat would have had to lean forward to see the handgun. A passenger in the rear seat would not have been able to reach the handgun. Gabriel testified he did not know the handgun was underneath the front passenger seat.

PROCEDURAL BACKGROUND

At the close of the People's case, Gabriel moved to dismiss count 4, which alleged he carried a concealed firearm within a vehicle (§ 12025, subd. (a)(1)), and count 5, which alleged he carried a loaded firearm in a vehicle (§ 12031, subd. (a)(1)). (Welf. & Inst. Code, § 701.1.) The judge denied this motion. At the close of evidence, defense counsel asked the court to dismiss counts 4 through 6 because of insufficient evidence (§§ 12025, subd. (a)(1), 12031 (a)(1) & 12101(a)(1)). The judge denied this request and found counts 4 through 7 true beyond a reasonable doubt. Gabriel timely appealed.

Although we conclude the evidence is insufficient to support the true findings on counts 4 through 7, we agree with the following comments of the trial court:

"Here is a young man who is out in a car, something like 2:30 in the morning in an area where somebody had been shooting off a gun because there had been complaints about it. Cops go and see this car sitting there. They see him in the passenger seat. They ask people to come out of the car, . . . minors, and he came out and the driver came out and low and behold under his seat, pretty close--it was almost not under his seat, there was a loaded weapon and he knows nothing about it.

"Well, you know, you can't be a judge and just engage in fiction after fiction after fiction. This is dangerous stuff. Especially for a young man like this. His parents ought to know about that. He could have been killed down there. I don't think they would like to go down to a funeral home and see him [lying] dead, and then they would blame everybody else, the cops and everybody else. He could have been shot and killed."

DISCUSSION

Gabriel contends the court erred by denying his motion to dismiss. (Welf. & Inst. Code, § 701.1.) Gabriel argues that at the close of the People's evidence there was no evidence he controlled the car or possessed the handgun. The People agree there was no evidence he controlled the car and there is insufficient evidence to support the true finding on count 4. The People contend, however, that the trial court could infer Gabriel constructively possessed the handgun based on his proximity to the handgun and the fact that the other occupants could not easily obtain access to the handgun. The People argue this evidence is sufficient to support the true findings on counts 5, 6 and 7.

A

We review the juvenile court's denial of a motion to dismiss for substantial evidence supporting the offenses charged in the petition. (In re Man J. (1983) 149 Cal.App.3d 475, 482.) We assume in favor of the court's order the existence of every fact from which the court could have reasonably deduced that the appellant committed the offense. (Ibid.) We will set aside the denial only if it clearly appears "that upon no hypothesis whatsoever is there sufficient substantial evidence" to support the court's conclusion. (People v. Wong (1973) 35 Cal.App.3d 812, 828.)

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." (§ 12025, subd. (a)(1).) A passenger does not generally control a vehicle. (See People v. Jenkins (1962) 207 Cal.App.2d.Supp. 904, 905.) Gabriel was sitting in the front passenger seat and did not own the car. The People agree there was insufficient evidence to establish Gabriel controlled or directed the car. Because there was no evidence that Gabriel controlled or directed the car, the trial court erred by denying the motion to dismiss count 4, which alleged Gabriel violated section 12025, subdivision (a)(1).

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 . . . ." The People can establish a person carried a firearm through circumstantial evidence of constructive possession. (People v. Taylor (1984) 151 Cal.App.3d 432, 436.) A person constructively possesses an item when he or she knowingly exercises dominion and control over the item. (People v. Mejia (1999) 72 Cal.App.4th 1269, 1272.) However, to establish constructive possession, there must be more evidence than a defendant's presence in a vehicle in which contraband is found. (In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330.) This is especially true when the defendant does not own the car in which contraband is found. (See People v. Small (1988) 205 Cal.App.3d 319, 326.) Also, proof of opportunity of access to a place where narcotics are found, without more, will not support a finding the defendant possessed the narcotics. (Williams v. Superior Court (1974) 38 Cal.App.3d 412, 422.)

Courts have found constructive possession of an item in a vehicle by the defendant where the defendant's presence in the vehicle is coupled with evidence of the defendant's consciousness of guilt. For example, in People v. Taylor, supra, 151 Cal.App.3d at page 436, Taylor was driving a car, and a gun was thrown from the passenger side of the car. Taylor led police on a chase just before the gun was thrown from the car and his driving showed "an unequivocal attempt to avoid capture." (Ibid.) This evidence sufficiently established Taylor constructively possessed the gun. (Ibid.) Similarly, in People v. Harrison (1969) 1 Cal.App.3d 115, 118, a police officer flashed his lights at Harrison, but Harrison did not immediately stop the car he was driving. Also, Harrison uttered a "common phrase of disconsolate disgust" when the officer found the gun. (Id. at p. 119.) A jury could infer from this evidence Harrison knew a gun was under the front passenger seat of the car he was driving. (Ibid.)

Here, Officer Burgess found the gun under the passenger seat in which Gabriel sat. Gabriel could not have seen the gun unless he leaned forward. The People did not present evidence that Gabriel owned either the handgun or the car. There was no evidence Gabriel had a consciousness of guilt. The evidence established only Gabriel's presence in the car and his proximity to the gun. A trier of fact cannot infer constructive possession solely from Gabriel's presence in the car and his access to the handgun. (See Williams v. Superior Court, supra, 38 Cal.App.3d at p. 422.) Thus, the record does not have substantial evidence supporting the court's denial of Gabriel's motion to dismiss the count alleging he carried a loaded firearm.

B

Gabriel contends there is insufficient evidence to sustain the court's true findings on counts 6 and 7 (possession of a concealed firearm, § 12101, subd. (a)(1), and possession of live ammunition, § 12101, subd. (b)(1)). We review the entire record most favorably to the court's judgment for substantial evidence such that a reasonable trier of fact could have found the elements of the crimes beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) Substantial evidence is evidence that is reasonable, credible, and of solid value. (Ibid.)

Both possession of a concealed firearm and possession of live ammunition require the People to establish the element of possession beyond a reasonable doubt. Again, the record here establishes only that Gabriel was in proximity to and had access to the handgun. A reasonable trier of fact could not have found the element of possession from this evidence. (See Williams v. Superior Court, supra, 38 Cal.App.3d at p. 422.) Thus, there was insufficient evidence to sustain the court's findings that Gabriel possessed a concealed firearm or live ammunition.

C

We reverse the true findings on counts 4, 5, 6 and 7. Thus, we need not address Gabriel's arguments regarding lesser included offenses, the fine, or the court's calculation of the maximum term of theoretical confinement.

DISPOSITION

The judgment is reversed.

WE CONCUR BENKE, Acting P. J., NARES, J.


Summaries of

In re Gabriel R.

California Court of Appeals, Fourth District, First Division
Mar 27, 2008
No. D050705 (Cal. Ct. App. Mar. 27, 2008)
Case details for

In re Gabriel R.

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. GABRIEL R., Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 27, 2008

Citations

No. D050705 (Cal. Ct. App. Mar. 27, 2008)