Opinion
NOT TO BE PUBLISHED
Sonoma County Super. Ct. No. SCR-480289
SIMONS, J.
Defendant Joel Clayton Allen, Jr. (appellant), appeals his conviction by jury trial of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a)(1)) (count 1), carrying a concealed weapon in a vehicle (Pen. Code, § 12025, subd. (a)(1)) (count 2), unlawfully carrying a loaded firearm on his person or in a vehicle (Pen. Code, § 12031, subd. (a)(1)) (count 3), and knowingly giving false information to a peace officer (Veh. Code, § 31) (count 4). In a bifurcated trial the court found true a prior strike allegation and a prior prison term allegation. (Pen. Code, §§ 1170.12, 667.5, subd. (b).) Appellant contends his convictions on counts 1 through 3 are unsupported by substantial evidence and the court miscalculated his presentence custody credits. We agree that the presentence credits were miscalculated and otherwise affirm.
Appellant was sentenced to five years in state prison.
BACKGROUND
In the early morning of January 15, 2006, Santa Rosa Police Officer Sanchez was on patrol when he noticed a blue Chevrolet Suburban (Chevy), which matched the description of a vehicle that had been reported stolen. Sanchez began following the Chevy and attempted a registration check on its license plate. Because Sanchez could not tell whether the license plate contained an “E” or an “F,” he ran the registration check with both options. The check revealed that the plate with the “F” belonged to a different vehicle with an expired registration. The plate with the “E” had been issued to a Christopher Rogers and had been removed from the Department of Motor Vehicles system.
Sanchez initiated a traffic stop of the Chevy by activating his patrol car’s lights and siren. After traveling approximately one-half to three-quarters of a mile, the Chevy pulled over. At trial, Sanchez identified appellant as the Chevy’s driver. As Sanchez approached the Chevy, appellant stuck his head out the window and angrily looked back at Sanchez. Appellant asked Sanchez why he had been pulled over and Sanchez explained there was something wrong with the Chevy’s registration. Appellant scowled and responded in an “angry, uncooperative, agitated” manner that the Chevy was properly registered. Sanchez requested a backup officer. When Sanchez asked appellant for identification, appellant said he did not have his license with him, and identified himself as Christopher Rogers. Appellant then gave Sanchez the Chevy’s registration which was in the name of Christopher Rogers. The Chevy’s passenger was identified as Kimberly Lee.
Sanchez ran a license and warrant check on Rogers and discovered there was an outstanding warrant for Rogers’s arrest. Because appellant appeared to match the physical description of Rogers given by dispatch, Sanchez arrested appellant on the outstanding warrant. When Sanchez ordered appellant out of the Chevy, appellant angrily “stormed past” Sanchez and stood at the front of the Chevy with his legs spread and hands on the hood. Appellant told Sanchez that Rogers was not his real name, and said he lied about his name because he did not have a driver’s license. Appellant asked Sanchez not to tow his car and asked if, instead, someone could come and pick up the Chevy.
Sanchez found appellant’s wallet in a search of appellant’s person incident to the arrest and discovered appellant’s true identity. Sanchez then searched the rear portion of the Chevy’s passenger side and “fairly immediately” found a loaded nine-millimeter semiautomatic pistol underneath the middle bench seat. Sanchez said the gun was somewhere toward the middle of the bench seat, but was not absolutely certain. To the best of his recollection, Sanchez said the gun was completely underneath the bench seat. He was not sure whether a portion of the gun was sticking out from under the seat. Sanchez said he did not have to put his head underneath the seat in order to see the gun. He either saw it when he first opened the Chevy’s passenger door or when he started to lean into the Chevy. The gun was positioned closer to the front half of the seat. The barrel of the gun faced the rear of the Chevy and the bottom of the pistol grip faced the driver’s seat. Sanchez opined that because the gun was located within arm’s reach of the driver, it would have been accessible to the Chevy’s driver. On the console of the Chevy’s front seat, Sanchez found a large stack of paperwork and envelopes addressed to appellant.
Sanchez conceded that in his police report he stated, “During the search, I found the gun concealed under the center portion of the bench seats.”
No items belonging to Lee were found inside the Chevy. She was questioned and eventually released at the scene. Other than the registration, nothing else found in the Chevy bore Rogers’s name.
When Sanchez completed his search of the Chevy, he informed appellant he had found the gun. Appellant responded, “What, you mean somebody ran up and put a gun in my car?” Sanchez then advised appellant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436). While being transported to jail appellant asked Sanchez what Sanchez had done with the Chevy; Sanchez said it was towed. Appellant said, “What, you left my car there to get my computer and my stereo system stolen?”
A subsequent check on the gun’s history revealed it had been registered to a William Arthur Messer in March 2000, but the gun was not currently registered. No latent fingerprints were later found on the gun, the magazine or the single bullet.
The parties stipulated that appellant was prohibited from owning or possessing any firearms because of a prior felony conviction.
DISCUSSION
I. Substantial Evidence Was Presented of Appellant’s Knowledge of the Gun
Appellant contends his convictions on counts 1 through 3 must be reversed because no substantial evidence was presented that he knew of the gun’s presence inside the Chevy.
“In addressing a challenge to the sufficiency of the evidence supporting a conviction, the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. [Citation.] ‘ “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. [Citation.]” ’ [Citation.]” (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
The elements of possession of a firearm by a felon (charged in count 1) are “conviction of a felony and ownership, possession, custody or control of a firearm. [Citations.] Knowledge is also an element of the offense. [Citation.]” (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Knowledge of the gun’s presence is also an element of carrying a concealed weapon in a vehicle (count 2) and unlawfully carrying a loaded firearm (count 3). (People v. Jurado (1972) 25 Cal.App.3d 1027, 1030-1031; People v. Harrison (1969) 1 Cal.App.3d 115, 120.)
To establish the element of possession, it is sufficient to demonstrate that the defendant had actual or constructive possession of the firearm. (People v. Cordova (1979) 97 Cal.App.3d 665, 670 (Cordova).) “Actual possession occurs when the defendant exercises direct physical dominion and control over the item.... [Citation.] Constructive possession does not require direct physical control over the item ‘but does require that a person knowingly exercise control or right to control a thing, either directly or through another person or persons.’ [Citation.]” (People v. Austin (1994) 23 Cal.App.4th 1596, 1608-1609, disapproved on another ground in People v. Palmer (2001) 24 Cal.4th 856, 867.) Possession and knowledge may be demonstrated by circumstantial evidence. (Cordova, at pp. 669-670.)
We conclude substantial circumstantial evidence was presented establishing appellant’s knowledge of the presence of the gun inside the Chevy. First, Sanchez testified that he was able to see the gun inside the Chevy almost immediately, either from his position at the open passenger door or by leaning into the vehicle. He did not need to put his head underneath the bench seat in order to see the gun. Second, the gun was positioned within arm’s length of the driver, with the bottom of the pistol grip facing the driver’s seat. A reasonable inference is that the gun was particularly placed for ready access by the driver, appellant. Third, appellant failed to pull over in response to Sanchez’s lights and siren until after traveling one-half to three-quarters of a mile. A reasonable inference is that appellant did not pull over immediately because he needed to secrete the gun under the bench seat. Fourth, appellant asked that the Chevy not be towed and instead be picked up by someone. A reasonable inference is that appellant did not want the gun to be found if the vehicle were impounded. That the evidence might yield conflicting inferences does not affect our review for substantial evidence. Taken together, the evidence presented establishes appellant’s knowledge of the presence of the gun within the Chevy.
II. The Trial Court Erred in Calculating Appellant’s Presentence Credits
Appellant contends, and the People concede, that the trial court erred in calculating his presentence custody credits.
The probation department’s presentence report stated that appellant was entitled to 58 days of actual presentence credit and eight days of work time credit pursuant to Penal Code section 2933.1. At the August 7, 2008 sentencing hearing, the court stated that the actual custody time needed to be updated. The probation officer stated that appellant had accrued 73 days actual credit and 10 days of conduct credit. The court awarded appellant 83 days credit and the probation report was corrected to reflect that amount.
All further undesignated section references are to the Penal Code.
The parties agree that 16 days passed between July 22, 2008, the date of the originally scheduled sentencing hearing, and August 7, the date appellant was actually sentenced. A defendant is entitled to presentence credit for the day of sentencing. (People v. Smith (1989) 211 Cal.App.3d 523, 525-527.) Thus, including the day of sentencing, appellant was entitled to 16 days in addition to the previously determined 58 days of actual credit, for a total of 74 days of actual credit.
The parties also agree that because appellant was not convicted of a violent felony as enumerated in section 667.5, subdivision (c), the 15 percent limit on conduct credits in section 2933.1 does not apply. (People v. Kimbell (2008) 168 Cal.App.4th 904, 908 (Kimbell).) Instead, appellant was entitled to calculation of his conduct credits under section 4019. (Kimbell, at p. 908.) “Under... section 4019, a defendant receives two days of conduct credit for each four-day block of time served. ‘The proper method of calculating presentence custody credits is to divide by four the number of actual presentence days in custody, discounting any remainder. That whole-number quotient is then multiplied by two to arrive at the number of good/work credits. Those credits are then added to the number of actual presentence days spent in custody, to arrive at the total number of presentence custody credits. [Citations.]’ [Citation.]” (Id. at pp. 908-909.) Pursuant to section 4019, appellant was entitled to 36 conduct credits in addition to his 74 days of actual credits, for a total of 110 days of credit.
DISPOSITION
The abstract of judgment is ordered corrected to reflect appellant’s entitlement to 74 days of actual credit and 36 days of conduct credit. The trial court shall direct delivery of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur.
JONES, P.J., BRUINIERS, J.