Opinion
NOT TO BE PUBLISHED
Super. Ct. No. F08440.
HULL, J.
Following a jury trial, defendant Stewart Jay Warren was convicted of two counts of being a felon in possession of a firearm (Pen. Code, § 12021, subd. (a); further undesignated section references are to the Penal Code) and one count of possessing a shuriken, a prohibited weapon (§ 12020, subd. (a)). He was sentenced to 16 months in state prison.
On appeal, defendant contends there is insufficient evidence to support the felon in possession of a firearm conviction. We shall modify the award of credits to add four more days of conduct credits and affirm the judgment as modified.
Facts
Defendant and his brother Jack Ryan lived with their mother Jarrell Ryan at her Modoc Estates home. On November 19, 2008, the Modoc County Interagency Narcotics Task Force executed a search warrant on the house. Jarrell Ryan was asleep on the living room couch surrounded by her blankets and medical supplies. Searching the southwest bedroom, officers found numerous personal items of defendant, along with a shotgun under the bed, a pistol in a dresser drawer, a shuriken, and a small amount of methamphetamine.
Defendant initially told officers his mother lived in the southwest bedroom, but later admitted sleeping in that room. Told there was a gun in the southwest bedroom, defendant said, “Those are not mine.”
Defendant was arrested and put in a patrol car with his brother. Conversing with his brother, defendant acknowledged the existence of three guns in the bedroom. His brother replied: “we’ll just have mom claim ‘em, they’re mom’s guns.” Defendant responded, “I’m in the room with them. I’m a felon.”
The parties stipulated defendant was previously convicted of a felony.
Jarrell Ryan testified that she owned the shotgun and pistol. She said defendant was unaware of the shotgun because it was hidden behind a dresser and she had not looked at it in almost 20 years. She pointed out the pistol to the officers, in the back corner of a drawer defendant was not allowed to use.
Defendant testified that he moved to his mother’s house in early 2008, left the house to work as a firefighter around July, and did not return until the end of October. Defendant stayed in his mother’s bedroom because it was more convenient and she found the family room a more comfortable place to sleep because of her health problems.
Defendant did not know there were guns in the house until they were found in the raid. The shuriken was part of a package deal he bought at an online auction, which included swords, medieval axes, and similar weapons he planned to resell online.
Discussion
I
Defendant contends there is insufficient evidence to support his conviction for felon in possession of a firearm. We disagree.
The elements of felon in possession of a firearm are conviction of a felony and ownership, possession, custody, or control of a firearm. (§ 12021; People v. Jeffers (1996) 41 Cal.App.4th 917, 922.) Knowledge is also an element of the offense. (People v. Snyder (1982) 32 Cal.3d 590, 592.) Possession may be constructive, which occurs when the defendant has a right to control the contraband or has dominion and control over the place where it is found, even if his or her right to exercise dominion and control over the place is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Constructive possession may be found when contraband is found in a place to which the defendant and others have access and over which none has exclusive control. (People v. Hutchinson (1969) 71 Cal.2d 342, 345.) Mere presence at the place where contraband is found, or proof of opportunity of access to a place where contraband is found, without more, will not support a finding of possession. (Id. at p. 346.) Possession may be proved by circumstantial evidence and inferences drawn from such evidence. (People v. Williams (1971) 5 Cal.3d 211, 215.)
Defendant asserts there was insufficient evidence to show he knew the firearms were in his room and intended to have control over them. In support of his claim, defendant points out the weapons were well hidden--the shotgun was found under the bed, behind a chest, after the officers’ third search of the room, and the pistol was not found until defendant’s mother pointed it out to them. While defendant referred to multiple guns in conversations with his brother and an officer, defendant claims this merely shows he knew of his mother’s guns. Finally, defendant observes his mother’s testimony--the shotgun was given to her shortly after defendant’s birth in 1955 and she was given the pistol shortly after moving into the house in 1975--is consistent with him knowing about the guns without possessing them.
The firearms were found in defendant’s bedroom. That they were difficult to find supports the inference that defendant, a felon, was trying to hide them. Defendant’s conversations with the police and his brother after his arrest show he knew the guns were in his bedroom. His initial statement that he did not reside in the bedroom is further evidence of a guilty mind.
The jury did not have to believe the version given by defendant and his mother. It is well established that, “‘“[i]f the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.”’ [Citation.]” (People v. Massie (2006) 142 Cal.App.4th 365, 373.) A “judgment is not subject to reversal on appeal simply because the prosecution relied heavily on circumstantial evidence and because conflicting inferences on matters bearing on guilt could be drawn at trial. Although the jury is required to acquit a criminal defendant if it finds the evidence susceptible of two reasonable interpretations, one of which favors guilt and the other innocence, it is the jury, not the appellate court, which must be convinced of his guilt beyond a reasonable doubt. [Citation.] We review the entire record in the light most favorable to the judgment and affirm the convictions as long as a rational trier of fact could have found guilt based on the evidence and inferences reasonably drawn therefrom. [Citation.] Such is the case here.” (People v. Millwee (1998) 18 Cal.4th 96, 132.)
II
The trial court awarded 8 actual days and 4 conduct days for a total of 12 days of presentence custody credits. Pursuant to this court’s miscellaneous order No. 2010-002, filed March 16, 2010, we deem defendant to have raised the issue of whether amendments to section 4019 apply retroactively to his pending appeal and entitle him to additional presentence credits.
On September 28, 2010, the Legislature enacted Senate Bill No. 76, which amended section 2933 regarding presentence conduct credits for defendants sentenced to state prison. This amendment, effective September 28, 2010, gives qualifying prisoners one day of presentence conduct credit for each day of actual presentence confinement served (§ 2933, subd. (e)(1)-(3), added by Stats. 2010, ch. 426, § 1.) The amendment does not state it is to be applied prospectively only. We conclude it applies to defendant’s conviction, which was not final as of the effective date of Senate Bill No. 76. (See In re Estrada (1965) 63 Cal.2d 740, 745 [amendment to statute lessening punishment for crime applies “to acts committed before its passage provided the judgment convicting the defendant of the act is not final”]; People v. Hunter (1977) 68 Cal.App.3d 389, 393 [applying the rule of Estrada to amendment allowing award of custody credits]; People v. Doganiere (1978) 86 Cal.App.3d 237 [applying Estrada to amendment involving conduct credits].)
As defendant does not have a present or prior conviction for a “serious” or “violent” felony and is not subject to registration as a sex offender, he is entitled to the presentence conduct credits now provided for in section 2933, subdivision (e). (§ 2933, subd. (e)(1) & (3), added by Stats. 2010, ch. 426, § 1.) Consequently, defendant, having served 8 days in actual presentence custody, is entitled to 8 days’ conduct credit. This gives defendant a total of 16 days’ credit, rather than the 12 days previously awarded.
Disposition
The judgment is modified to award defendant 8 days’ conduct credit for a total of 16 days’ presentence custody credits. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment to reflect this modification and to forward a certified copy of the same to the Department of Corrections and Rehabilitation.
We concur: RAYE, P. J., HOCH, J.