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In re Ignacio

Court of Appeals of California, Fifth District.
Nov 6, 2003
No. F042299 (Cal. Ct. App. Nov. 6, 2003)

Opinion

F042299.

11-6-2003

In re IGNACIO G., A Person Coming Under The Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. IGNACIO G., Defendant and Appellant.

Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Wiseman, Acting P.J., Cornell, J., and Gomes, J.

The court readjudged appellant, Ignacio G., a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging Ignacio with possession of a firearm by a minor (count 1/Pen. Code, § 12101, subd. (a)), carrying a firearm concealed within a vehicle (count 2/ § 12025, subd. (a)(1)), carrying a loaded firearm in a vehicle in a city (count 3/§ 12031, sub. (a)(1)), and possession of live ammunition by a minor (count 4/§ 12101, subd. (b)(1)). On January 14, 2003, the court aggregated the time on prior petitions, set Ignacios maximum term of confinement at nine years two months, and recommitted him to a group home. On appeal, Ignacio contends: 1) the evidence is insufficient to sustain the courts findings that he committed the charged offenses; 2) the true finding on count 1 must be stricken because the offense found true in that count is necessarily included in the offense found true in count 2; and 3) one of his conditions of probation is overbroad. We will find merit in Ignacios third contention. In all other respects, we will affirm.

All further statutory references are to the Penal Code.

FACTS

The evidence at Ignacios adjudication hearing established that on November 1, 2002, Ignacios mother, Maria O., borrowed a car to test drive it in order to decide whether to buy it. On November 2, 2002, Maria O. cleaned the car and washed it. While doing so, she cleaned under the seats and did not find anything. At approximately 6:00 p.m., Maria O. let Ignacio borrow the car to go to the store. However, since Ignacio did not have a license, she allowed John G. to drive it. According to Maria O., John was the only one who drove the car after she washed it.

At 11:24 p.m., the car was stopped by Porterville Police Officer Sonya Silva for having a cracked windshield. John was still driving the car with Ignacio seated in the front passenger seat and another juvenile seated in the back. After another officer arrived on the scene, Ignacio consented to a search of the car. The search uncovered a pair of brown gloves with a price tag attached, a red bandanna, a loaded nine-millimeter semi-automatic handgun, and a spent shell casing under the front passengers seat where Ignacio was sitting. The officers also found three black beanies and a pair of white cotton gloves in the car.

The probation report disclosed that the third person in the car was Jose M.

The juveniles told the officers they were from the Alpaugh-Delano area. When asked about the items found in the car, Ignacio stated, "What gun?" He also stated that the car belonged to his mother, that he did not think the gun belonged to her, that his brother had driven the car, and that the gun could belong to him.

DISCUSSION

The Sufficiency of the Evidence Issue

In order to find that Ignacio committed each of the offenses charged in counts 1 through 4, the court had to find that he was in constructive possession of the handgun and ammunition found under his seat. Further, in order to find that he had constructive possession of these items, the court had to find that he had knowledge of their presence under his seat. (see e.g. CALJIC No. 12.01 ["`constructive possession does not require actual possession but does require that a person knowingly exercise control over or right to control a thing, either directly or through another person or persons"].) Ignacio contends the evidence is insufficient to sustain the courts true findings with respect to counts 1 through 4 because it fails to establish that he had knowledge that the gun and ammunition were under his seat or that he exercised dominion and control over them. We disagree.

"The standard of review is well settled: On appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] `"[I]f the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder." [Citation.] `The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendants guilt beyond a reasonable doubt." [Citation.]" (People v. Snow (2003) 30 Cal.4th 43, 66.)

"Mere presence at the scene of the crime standing alone is not sufficient to justify a finding of guilt. [Citation.] [¶ ] The crime of possession of narcotics [or other contraband] requires a physical or constructive possession with actual knowledge of the presence of the narcotic substance. [Citation.] [¶] To show such knowing possession the conduct of the parties, admissions or contradictory statements and explanations are frequently sufficient. [Citations.]" (People v. Foster (1953) 115 Cal.App.2d 866, 868.)

Here, the gun was located under Ignacios seat, a place immediately accessible to him and subject to his dominion and control. Further, the court could reasonably conclude from Maria O.s testimony that only John drove her car after she washed it, that the gun was placed under Ignacios seat by Ignacio, or one of the other juveniles in the car. It could also reasonably find from Maria O.s testimony that Ignacio lied, and thus exhibited a consciousness of guilt (CALJIC No. 2.03), when he told an officer that his brother may have left the gun in the car when he drove it earlier that day.

Additionally, Ignacio and his friends were stopped at 11:24 p.m. riding around in Porterville in a car that they borrowed in the Alpaugh-Delano area at 6:00 p.m., ostensibly just to go to the store. In addition to the loaded gun under Ignacios seat, the officers also found three knit caps, two pairs of gloves, and a red bandanna in the car. The court could reasonably find from these circumstances that the real purpose of borrowing the car was to travel to another town to cruise around, or perhaps to involve themselves in mischievous activities, and that Ignacio and his friends carried the gun for protection. Moreover, the gun was found under Ignacios seat with a brand new pair of gloves. Considering that Ignacio borrowed the car to go to the store, the court could reasonably find that Ignacio bought the gloves at the store and placed them, along with the loaded gun under his seat, or alternatively, that he became aware the gun was under his seat when he placed the gloves there. In any event, we find that the court could reasonably conclude from all the circumstances discussed above that Ignacio was aware of the presence of the loaded gun under his seat and that he and the two other juveniles in the car constructively possessed it for their protection as they drove around Porterville. Thus, we conclude that the evidence is sufficient to sustain the courts true findings on all four counts.

The Lesser Included Offense Issue

Count 1 of the underlying petition alleged, in pertinent part, that Ignacio violated section 12101, subdivision (a) in that on November 2, 2002, "Ignacio G[.], who being a minor, did unlawfully possess a pistol, revolver, and firearm capable of being concealed upon the person."

Count 2, in pertinent part, alleged that Ignacio violated section 12025, subdivision (a)(1) in that he "did unlawfully carry concealed within a vehicle which was under his control and direction a pistol, revolver, and other firearm capable of being concealed upon the person."

Ignacio contends the courts true finding on count 1 must be stricken because possession of a firearm by a minor as charged in count 1 is a lesser included offense of the carrying a firearm concealed in a vehicle offense the court sustained in count 2. We disagree.

"In most cases `this court has . . . affirmed multiple convictions for a single act or indivisible course of conduct, leaving it to the sentencing court to determine whether to stay execution of sentence on one or more convictions pursuant to section 654 in order to avoid multiple punishment for the same act. [Citation.] A defendant, however, cannot be convicted of both an offense and a lesser offense necessarily included within that offense, based upon his or her commission of the identical act. [Citation.]

"For purposes of the rule proscribing multiple conviction, `"[u]nder California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." [Citation.]" (People v. Sanchez (2001) 24 Cal.4th 983, 987-988.)

Here, in order to violate section 12101, subdivision (a), Ignacio had to: 1) be a minor, and 2) possess a firearm capable of being concealed upon his person. However, Ignacio did not have to be a minor to violate section 12025, subdivision (a)(1) because the defendants minority is not an element of that offense. Further, since Ignacio was in constructive possession of the car his mother lent him, Ignacio did not need to possess the firearm in order for him to carry it concealed in a vehicle. For example, if Ignacio was aware that one of the car passengers carried a gun concealed in his waistband, he still would have violated section 12025 even if the facts failed to establish that he was in joint constructive possession of the gun with the passenger. (People v. Davis (1958) 157 Cal.App.2 33, 36 [defendant violated statute when he drove automobile with knowledge that gun was concealed under his seat]; see cf. People v. Rogers (1971) 5 Cal.3d 129, 134, fn. omitted ["Although possession is commonly a circumstance tending to prove transportation, it is not an essential element of that offense"].) Accordingly, we reject Ignacios contention that the court erred in sustaining the possession of a concealable firearm by a minor offense as charged in count 1.

The Probation Condition

As part of Ignacios conditions of probation, the court ordered that his "activities, associates and hours be approved by parent/guardian, custodians in advance." Ignacio contends this condition is constitutionally overbroad and unreasonable. Respondent concedes and we agree.

In In re Kacy S. (1998) 68 Cal.App.4th 704 the court found that a probation condition requiring that the minor "not associate with any persons not approved by his probation officer" was constitutionally overbroad and unreasonable. The court also modified the condition to provide that the minor was not to associate with another minor who was involved in the underlying incident leading to the charges being filed in that case. (Id. at p. 707-708.)

In accord with Kacy S., we will find that the probation condition at issue here is overbroad and we will modify it accordingly.

DISPOSITION

The condition of probation requiring that Ignacios "activities, associates and hours" be approved by his parents or guardians in advance is modified to provide that Ignacio is not to associate with anyone whom he knows is not approved of by his parents or guardians. The trial court is directed to prepare an amended commitment order and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.


Summaries of

In re Ignacio

Court of Appeals of California, Fifth District.
Nov 6, 2003
No. F042299 (Cal. Ct. App. Nov. 6, 2003)
Case details for

In re Ignacio

Case Details

Full title:In re IGNACIO G., A Person Coming Under The Juvenile Court Law. THE…

Court:Court of Appeals of California, Fifth District.

Date published: Nov 6, 2003

Citations

No. F042299 (Cal. Ct. App. Nov. 6, 2003)