Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J035763
Marchiano, P.J.
The juvenile court found that 16-year-old defendant T.H. had received stolen property, a motor vehicle, in violation of Penal Code section 496d. Defendant argues there is insufficient evidence that he possessed the vehicle or knew that it was stolen. We find the evidence sufficient and affirm.
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
I. FACTS
In the early morning hours of May 25, 2007, Seuea Paga was in the waiting room of Sutter Solano Hospital in Vallejo, where her daughter was in the ICU. Between 4:00 and 5:00 a.m., she was lying down on a couch with her car keys and her cell phone next to her head. She wanted to be able to sleep, but receive a call if the ICU phoned about her daughter. Her granddaughter was in the room. So was D.H., a 13-year-old juvenile whom she did not know.
D.H.’s last name is different from defendant’s.
Paga awoke about 5:00 a.m. and discovered that her car keys were missing. She looked outside and saw that her Mazda MPV van was missing from the hospital parking lot.
Paga watched a surveillance tape, which showed D.H. walking out the door of the waiting room with her phone and her keys in his hand. The tape also showed D.H. walk up to the Mazda and “back [it] out.” Paga did not know defendant. Defendant does not appear on the surveillance tape.
The next day, May 26, Paga’s son was driving to the hospital and spotted the Mazda. He followed the car and found it parked on the street. The occupants of the car had “run away.” There were scratches on the outside of the car and some type of writing on the inside. There was also trash inside the car, as well as “some ladies panties.” The windshield was broken.
Vallejo Police Officer Douglas investigated the vehicle theft. His sergeant showed him a photograph, presumably from the hospital surveillance tape. Douglas recognized D.H., a student at the Community Day School where Douglas patrolled. Douglas had arrested D.H. for auto theft two weeks before the theft of the van.
Douglas contacted D.H. at the Community Day School on June 5, 2007. After being advised of his Miranda rights and agreeing to talk, D.H. told Officer Douglas that he went into Sutter Hospital “and picked up the set of keys from someone who was sleeping at the emergency room.” He then went out to the parking lot and “was met by two of his friends.”
The prosecutor asked Douglas if D.H. said who those friends were. The defense objected on the ground of hearsay. The juvenile court initially sustained the objection. The prosecutor responded that D.H.’s identification of his friends was not being admitted “for the truth of the matter but for the officer’s state of mind to conduct an investigation.” The court asked for “a foundational question as to how that would be relevant,” and reserved final ruling on the objection.
Douglas then testified that D.H. identified defendant as one of the two friends, and as being involved in the vehicle theft. D.H. told Douglas that defendant was waiting in the parking lot when D.H. took the keys from the sleeping Paga. Defendant took the keys from D.H. and drove the Mazda van out of the parking lot. D.H. claimed he was only a passenger.
Based on D.H.’s statements, Douglas contacted defendant at Vallejo High School on June 6, 2007. After being advised of his Miranda rights and agreeing to talk, defendant denied having anything to do with stealing the car. He told Douglas that he saw D.H. driving the Mazda van, and got into the van when D.H. stopped for him. Defendant told Douglas that he knew the van was stolen and that D.H. had stolen it.
The People rested at the conclusion of Douglas’s testimony. The court never ruled on the hearsay objection.
If a court reserves an objection, its failure to formally rule constitutes an implied ruling against the objection and in favor of admissibility. (Clopton v. Clopton (1912) 162 Cal. 27, 32; People v. Flores (1979) 92 Cal.App.3d 461, 466-467.) We thus view the statement as received for its limited purpose and not for the truth of the matter.
Defendant testified that he was 16 years old. On May 25th, 2007, he was walking to his aunt’s house when he saw “a car parked on the side of the road with some little girls that I might have known . . . .” D.H. was there and defendant asked him whose car it was. Either D.H. or one of the girls said the car belonged to the mother of the driver. Defendant said D.H. could have been the driver. Defendant denied knowing D.H. and denied that D.H. was his friend. He denied telling Officer Douglas that he knew D.H.
Defendant testified that he accepted a ride, but didn’t remember whether D.H. or someone else drove the car. He testified that either D.H. “or his friends” were driving, and that “they” gave him a ride. On cross-examination, defendant said he rode in the back and there were two people in the front. Defendant denied knowing the car was stolen. He admitted that 13-year-old D.H. looked too young to legally drive.
Defendant was charged with unlawful taking of a vehicle (Veh. Code, § 10851, subd. (a), count 1) and receiving a stolen motor vehicle (Pen. Code, § 496d, subd. (a), count 2). The juvenile court found that D.H., not defendant, stole the van and dismissed count 1, questioning why that charge was even brought because only D.H. is on the surveillance tape. The court also noted that D.H. named defendant as the thief to “shift[] the blame from himself” to defendant.
The court found that defendant was not credible when he denied knowing D.H. The court also found that D.H. “knows [defendant] well enough to identify him by name [at] the genesis of the investigation into [defendant’s] involvement in the first place.” The court further found that defendant’s testimony was not credible overall because of various inconsistencies, notably defendant’s telling Officer Douglas that he knew the car was stolen, but denying that knowledge in his testimony.
The court concluded that defendant received stolen property because “he got into the car, not caring that it was stolen and knowing that it was stolen.” The court found beyond a reasonable doubt that defendant “was in receipt of stolen property and that he intentionally entered and used and thus possessed the car at the time that he knew it was a stolen vehicle.”
The juvenile court made defendant a ward of the court and placed him on probation, in the custody of his mother.
II. DISCUSSION
Defendant contends there is insufficient evidence that he knew the Mazda van was stolen or that he possessed it. We disagree for the following reasons.
Section 496d, subdivision (a) tracks section 496, subdivision (a), and provides: “Every person who buys or receives any motor vehicle [and other listed types of vehicles] that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any motor vehicle . . . from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment in the state prison for 16 months or two or three years or a fine . . . or both, or by imprisonment in a county jail not to exceed one year or a fine . . . or both.”
“A conviction for receiving stolen property cannot withstand appellate scrutiny unless substantial evidence was presented to the trier of fact” to establish the three elements of the offense. (People v. Kunkin (1973) 9 Cal.3d 245, 249.) To sustain a conviction for receiving stolen property, “the prosecution must prove (1) the property was stolen; (2) the defendant knew the property was stolen; and, (3) the defendant had possession of the stolen property. [Citations.]” (People v. Land (1994) 30 Cal.App.4th 220, 223 (Land).)
Defendant contends there is insufficient evidence that he knew the van was stolen at the time he rode in it. Defendant emphasizes his own testimony that he did not know the van was stolen. But defendant admitted that knowledge to Officer Douglas. Defendant now claims that the admission does not establish knowledge of the stolen character of the van at the time defendant accepted the ride—as opposed to some later point. We must view the evidence in the light most favorable to the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Defendant admitted to Officer Douglas that he saw D.H. driving the Mazda van, got into the van when D.H. stopped for him, and knew the van was stolen and that D.H. had stolen it. This is sufficient for a rational trier of fact to conclude defendant knew the van was stolen when he got into it.
The issue of possession is closer. Possession of stolen property need not be exclusive, and is either actual or constructive. (Land, supra, 30 Cal.App.4th at p. 223.) Constructive possession does not require direct physical control over the stolen property, but does require that the defendant have dominion and control over the property. (People v. Howard (1995) 33 Cal.App.4th 1407, 1419; Land, supra, at p. 224.)
“[M]ere presence near the stolen property, or access to the location where the stolen property is found is not sufficient evidence of possession, standing alone, to sustain a conviction for receiving stolen property. [Citations.]” (Land, supra, 30 Cal.App.4th at p. 224.) Something more must be shown to support an inference of dominion and control. (Id. at pp. 225-226; People v. Zyduck (1969) 270 Cal.App.2d 334, 336 (Zyduck).) “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.” (Zyduck, supra, at p. 336.)
Merely riding as a passenger in a stolen car is insufficient evidence of constructive possession. (Land, supra, 30 Cal.App.4th at pp. 225-226, & fn. 3.) “[A]dditional factual circumstances are necessary to establish a passenger has possession or control of the stolen car.” (Id. at p. 228.)
There are a special set of circumstances applicable to the question of whether a passenger is in constructive possession of a stolen car. The Land court conducted a thorough review of applicable authority, most from out of state, and concluded that such factual circumstances include whether the passenger knew the driver or had a close relationship with him; knew the vehicle was stolen; engaged in conduct showing control; and intended to use the vehicle for his own benefit and enjoyment. (Land, supra, 30 Cal.App.4th at pp. 225-228; see, e.g., State v. McCoy (N.J. 1989) 561 A.2d 582, 588.) And in general, “admissions or contradictory statements and explanations are frequently sufficient” to show knowing possession of stolen property. (People v. Foster (1953) 115 Cal.App.2d 866, 868, citations omitted.)
Despite defendant’s claims to the contrary, there is evidence that he and D.H. knew each other. D.H. identified defendant by name as a suspect. The juvenile court found that defendant was not credible when he denied knowing D.H. Defendant admitted to Officer Douglas that he knew the Mazda was stolen and that D.H. had stolen it. The van was used overnight and damaged to the point where a reasonable trier of fact could conclude from the evidence that more than one person used it for their own benefit and enjoyment. It appears that at least at one time the van was occupied by D.H., defendant who used the car for his own benefit to ride around, and one other male. Female underwear was found in the van, suggesting some sexual activity occurred. The court found defendant’s explanation of merely being an unwitting passenger not credible. Defendant made contradictory statements involving his knowledge the car was stolen and that he knew D.H.
The court found that defendant “intentionally entered and used and thus possessed the car at the time that he knew it was a stolen vehicle.” The evidence of constructive possession from a beneficial use is sufficient under the rationale of the Land case.
We reach this conclusion without considering D.H.’s claim that defendant actually drove the car.
III. DISPOSITION
The jurisdictional and dispositional orders are affirmed.
We concur: Swager, J., Margulies, J.
We note that defendant’s reliance on In re Anthony J. (2004) 117 Cal.App.4th 718 is misplaced. The evidence in that case showed mere presence in the stolen vehicle. There was no evidence the defendant had been a passenger shortly after the vehicle was stolen, that the defendant knew the driver, or that defendant and the driver used the vehicle to commit crimes. (Id. at p. 729.)