Opinion
A155198
01-10-2020
In re J.A., A Person Coming Under the Juvenile Court Law. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. J.A., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JW18-6048)
J.A. was declared a juvenile court ward after the court found true several gun-related allegations, including one felony count and one misdemeanor count of possession of a firearm by a minor (Pen. Code, § 29610). J.A.'s sole contention on appeal is that holding him accountable for both of these gun possession charges was improper because possession of a firearm is a single, continuing offense. We agree and thus reverse the juvenile court's true finding with respect to the misdemeanor possession charge. We otherwise affirm.
All statutory references are to the Penal Code unless otherwise specified.
I. BACKGROUND
On the afternoon of February 15, 2018, a school security guard was sitting on a bench outside of his San Francisco high school when he noticed J.A. playing with a basketball among a group of students who were leaving after being dismissed for the day. The security guard saw a black gun with a brown handle fall from J.A.'s person and hit the ground. The gun landed about 10 to 15 feet in front of the security guard, making a sound "like when you drop metal." According to the security guard, everybody stood still for a second. The security guard and J.A. then made eye contact and the guard told the minor to come over to him. Instead, J.A. picked up the gun and his basketball and "took off." The whole incident—the gun falling from J.A. to the ground and J.A. retrieving it—"happened in a matter of seconds." Based on his limited observation, the security guard could not say whether the gun at issue was a real firearm.
The school reported the matter to the police, who visited J.A.'s home on February 22, 2018 to investigate further. The responding officers asked to speak to J.A., who came outside, talked briefly with them, and provided his mother's contact information. Eventually J.A.'s mother arrived and consented to a search of the home. While searching J.A.'s room, the police discovered a gun with a brown handle. The weapon was hidden in a white sock stuffed inside of a black suede boot belonging to J.A.'s sister. When interviewed, J.A.'s sister told a police officer that J.A. was "panicking" when the police were outside, and he told her to put the gun in the boot.
Based on these events, the San Francisco County District Attorney filed a juvenile wardship petition against J.A. pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging felony possession of a firearm on school grounds (§ 626.9, subd. (b), count 1) and two felony counts of possession of a firearm by a minor (§ 29610)—one stemming from the school incident on February 15, 2018 (count 2), and the other related to the gun found in the minor's bedroom on February 22 (count 3). After a contested jurisdictional hearing and related motion to suppress in June 2018, the juvenile court denied the suppression motion and sustained the petition allegations, and in doing so reduced count 3 from a felony to a misdemeanor. At the dispositional hearing, J.A. was adjudged a ward of the juvenile court and placed in the home of his parents under probation supervision with certain terms and conditions. This appeal followed.
II. DISCUSSION
Relying on People v. Mason (2014) 232 Cal.App.4th 355 (Mason), J.A. argues that the juvenile court's true finding as to count 3 must be reversed because he cannot be found to have committed two separate gun possession violations under section 29610 based on one continuous period of possession. In Mason, the defendant was convicted of four counts of possession of a firearm by a felon under former section 12021, subdivision (a)(1). (Mason, at p. 364.) Each possession count corresponded to the date of a different shooting or the date a police chase led to the recovery of the firearm used in the shootings. The prosecution's theory was that Mason possessed the firearm on each of these occasions. (Ibid.) The appellate court reversed all but one of Mason's possession convictions. (Id. at p. 367.)
Pursuant to section 29610, "[a] minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person." --------
The court began by noting that "[t]he Supreme Court has recognized that possession of a firearm by a felon is a continuing offense." (Mason, supra, 232 Cal.App.4th at p. 365.) " ' "Ordinarily, a continuing offense is marked by a continuing duty in the defendant to do an act which he [or she] fails to do. The offense continues as long as the duty persists, and there is a failure to perform that duty." [Citations.] Thus, when the law imposes an affirmative obligation to act, the violation is complete at the first instance the elements are met. It is nevertheless not completed as long as the obligation remains unfulfilled. "The crime achieves no finality until such time." ' " (Ibid.) For continuing offenses, then, " 'only one violation occurs even though the proscribed conduct may extend over [an] indefinite period.' " (Ibid.)
Applying this concept to the case before it, the Mason court reasoned that, "[a]lthough the evidence showed that Mason possessed the firearm on each of the dates, there was no evidence that Mason's possession of the firearm was anything but continuous over the period encompassing the four dates. The prosecution did not present evidence, for example, showing that Mason had relinquished possession of the gun for a period between the specified dates. Mason's crime was complete at the time he first possessed the gun because he violated the duty imposed by the statute not to do so. [Citation.] But the crime continued—as a single offense—for as long as the same possession continued, i.e., so long as Mason continued to violate his duty under the statute." (Mason, supra, 232 Cal.App.4th at p. 366; compare People v. Davis (2002) 102 Cal.App.4th 377, 381-383 [conviction for two violations of the continuing offense of failing to register as a sex offender upheld where evidence showed that the defendant moved to Los Angeles a first time (thus invoking the duty to register), moved away for a time, then moved back to Los Angeles a second time (invoking the duty to register again)].)
We see no basis to depart from the reasoning in Mason for juvenile possession offenses under section 29610, and, indeed, the Attorney General acknowledges that Mason represents the current state of the law. In this case, no evidence was presented that J.A. possessed different firearms on the two dates in question. J.A.'s counsel filed a declaration stating that J.A. had agreed to hold the gun for another boy and, after the school incident, hid the gun in his home because he was "scared and unsure what to do." And the prosecution asserted during closing argument that J.A. possessed the same gun at both home and school. It thus appears that J.A. maintained possession of the firearm at issue continuously from February 15 through February 22, 2018, and should therefore have been charged with only a single section 29610 possession offense.
The Attorney General, however, contends that substantial evidence supports the conclusion that J.A. relinquished and then regained possession of the firearm on at least two different occasions during the relevant timeframe. Specifically, he argues that J.A. lost possession of the firearm when it dropped from his person at school and then reacquired possession by deciding to pick it up. He also contends that J.A. relinquished possession of the gun to his sister and then regained possession when she concealed the firearm in a black suede boot in his room. We are not persuaded by either claim.
Possession of a firearm may be either actual or constructive. (In re Charles G. (2017) 14 Cal.App.5th 945, 951.) "It does not require that a person be armed or that the weapon be within a person's immediate vicinity. [Citations.] Rather, it encompasses having a weapon in one's bedroom or home or another location under his or her control, even when the individual is not present at the location." (Ibid.; see In re Carleisha P. (2006) 144 Cal.App.4th 912, 915, 918 [weapon and ammunition found in minor's bedroom supported possession findings].) Thus, a person "possesses" a weapon when it is under his or her dominion and control. The person has actual possession when the weapon is in his or her immediate possession or control. The person has constructive possession when the weapon—while not in his or her actual possession—is nonetheless under the individual's dominion and control, either directly or through others. (People v. Peña (1999) 74 Cal.App.4th 1078, 1083-1084 (Peña).)
Under the facts presented, we cannot conclude that J.A. relinquished possession of the firearm when he accidentally dropped it and then immediately retrieved it. The whole incident took only a "matter of seconds" and, although the gun fell to the ground momentarily, no one else took possession of it. Rather, the firearm remained under J.A.'s immediate control, as evidenced by the speed and ease with which he was able to pick it back up. (See Peña, supra, 74 Cal.App.4th at p. 1084 ["an individual is in the immediate personal possession of a firearm if the weapon is nearby and quickly and directly available to him"].)
We are similarly unconvinced that J.A. relinquished possession of the firearm to his sister when he handed it to her with instructions to hide it in a boot in his room and then somehow regained possession of it. There is no evidence that J.A. intended to relinquish dominion and control over the weapon by giving it to his sister. He directed her to hide the gun so that he could retain possession of it despite the presence of the police. Under the circumstances, J.A. maintained constructive possession of the firearm because he retained his right to exercise dominion and control over it up until the time it was discovered by the police. (See Peña, supra, 74 Cal.App.4th at pp. 1083-1084 [an individual may exercise dominion and control over a weapon through an agent acting at his or her direction]; see also People v. Mijares (1971) 6 Cal.3d 415, 421-422 [while abandonment of an object terminates possession, throwing heroin out of a car window with the intent to later retrieve it constitutes constructive possession]; People v. White (1958) 50 Cal.2d 428, 431 [defendant had constructive possession of a narcotic as soon as it was purchased for him by an agent at his instruction]; People v. Rice (1976) 59 Cal.App.3d 998, 1002 [constructive possession where the accused had the right to exercise dominion and control over the place where the contraband was found].)
In sum, there is no evidence in the record that J.A lost and then regained possession of the firearm at some point between the school incident and the discovery of the weapon in his bedroom. The evidence instead shows that he maintained continuous dominion and control over the firearm throughout the relevant timeframe. Thus, only a single possession charge is appropriate.
III. DISPOSITION
The juvenile court's true finding with respect to count 3 is reversed. The judgment is otherwise affirmed.
/s/_________
Sanchez, J. WE CONCUR: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.