In re E.P.









Filed 11/17/10 In re E.P. CA2/5





NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re E.P., a Person Coming Under the Juvenile Court Law.	B221007 (Los Angeles County Super. Ct. No. JJ15559)
THE PEOPLE, Plaintiff and Respondent, v. E. P., Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Donna Groman, Judge. Affirmed.
Laini Millar Melnick, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey, Supervising Deputy Attorney General, Mary Sanchez, Deputy Attorney General, for Plaintiff and Respondent.



INTRODUCTION
The District Attorney of Los Angeles County filed a petition alleging that appellant E.P. came within the provisions of Welfare and Institutions Code section 602 because he was a minor in possession of a firearm, a violation of Penal Code section 12101, subdivision (a)(1).[1] The juvenile court found the allegation to be true, sustained the petition, declared the offense to be a felony, and continued the disposition hearing.
On November 5, 2009, the District Attorney filed a second petition alleging that appellant E.P. came within the provisions of Welfare and Institutions Code section 602 alleging two counts of felony vandalism/graffiti in violation of section 594, subdivision (a). E.P. admitted one count, as a misdemeanor, and the juvenile court dismissed the second count.
The juvenile court declared E.P. to be a ward of the court.[2] The juvenile court removed custody of E.P. from his parents and placed him on home probation.
On appeal, E.P. contends that insufficient evidence supports the juvenile court’s finding that he possessed a firearm, a violation of section 12101, subdivision (a)(1). We hold that there is sufficient evidence to support the adjudication.

BACKGROUND
About 5:00 p.m. on August 13, 2009, Los Angeles Police Officer Joe Scida was working the gang detail near 82nd and Hoover Street. Officer Scida observed two known 18th Street gang members exit a car and walk away from it at a rapid pace. Because an 18th Street gang member had recently been killed, Officer Scida decided to conduct a consensual stop.
Officer Scida and his partner, Officer Peel, contacted the driver of the car, who was one of the two 18th Street gang members who got out of the car. Officer Peel discovered the driver was on probation; thus he asked the driver if the officers could search the car. The driver said, “Yes.” Officer Scida could not see inside the car because it had tinted windows. He asked the driver if there was anyone else in the car. The driver said “no,” but as Officer Scida approached the car, he could see E.P. lying down in the backseat on the right side. E.P. was hunched over and appeared to be sleeping. Officer Scida had been watching the car for about two minutes.
Officer Scida immediately recognized E.P., who was then 16 years old, due to numerous prior contacts. There was also another minor sitting in the backseat, on the left side behind the driver’s seat Officer Scida told E.P. and the other minor to exit the car. As E.P. exited the car, Officer Scida saw a small caliber semiautomatic handgun in plain view on the floorboard where E.P.’s feet had been. The gun was partially concealed beneath the front seat. Although there was trash on the floorboard, the gun was still in plain view.
The gun appeared to be operable. Officer Scida asked E.P., “Do you know why you’re going back to the station with me‌” In response, E.P. said, “Yes, because of the gun.”

DISCUSSION

A. Standard of Review
On an appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the allegations of a petition asserted against a minor, the appellate court “must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.” (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) “‘In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question we ask is “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’ ([People v.] Rowland [(1992)] 4 Cal.4th [238,] 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].) We apply an identical standard under the California Constitution. (Ibid.) ‘In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.”’ (People v. Johnson (1980) 26 Cal.3d 557, 576 [162 Cal.Rptr. 431, 606 P.2d 738].)” (People v. Young (2005) 34 Cal.4th 1149, 1175.)

B. Substantial Evidence Supports the Adjudication
Section 12101 provides that, “A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person.” (§ 12101, subd. (a).) “Possession may be actual or constructive. Actual possession means the object is in the defendant’s immediate possession or control. A defendant has actual possession when he himself has the weapon.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) “Constructive possession means the object is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. [Citation.]” (Ibid.; People v. Francis (1969) 71 Cal.2d 66, 71.) A defendant’s knowledge of, and right to control, a firearm may be shown by circumstantial evidence and may be inferred by his conduct. (People v. Rushing (1989) 209 Cal.App.3d 618, 622-623.)
There was sufficient evidence from which the juvenile court could reasonably determine that E.P. was in actual possession of the gun. Although there was no evidence that E.P. had physical possession of the gun, there was sufficient evidence to find that the gun was in his immediate possession or control. The gun was located under E.P.’s control—on the floorboard where his feet had been. “[P]ossession [of a weapon] for even a limited time and purpose may be sufficient.” (In re Daniel G., supra, 120 Cal.App.4th at p. 831.)
Independent of whether E.P. was in actual possession of the gun, there was sufficient evidence from which the juvenile court reasonably could find that E.P. had constructive possession of the gun because he knowingly exercised control or the right to control it. An 18th Street gang member had recently been killed. There were two known 18th Street gang members in the car with E.P. The car had tinted windows, and the driver, one of the gang members, denied that there was anyone else in the car. As Officer Scida approached the car, he saw E.P. and another minor in the backseat. Officer Scida saw the gun in plain view next to E.P.’s feet. The juvenile court could reasonably infer that the driver denied E.P. was in the car because he knew that E.P. possessed a gun and was trying to protect E.P. from being arrested.
Also, when Officer Scida asked E.P. if he knew why he was going back to the station, E.P. responded by saying, “Yes, because of the gun.”[3] Additionally, the juvenile court reasonably could have inferred that E.P. had a consciousness of guilt because he was only pretending to sleep when he was contacted by Officer Scida in attempt to avoid the officer. Under the circumstances, it was reasonable for the juvenile court to determine that E.P. had constructive possession of the gun.
E.P. cites to cases in which the defendant was the driver of the car (People v. Baker (1955) 135 Cal.App.2d 1, 5; People v. Glancy (1956) 142 Cal.App.2d 669, 675; People v. Hunt (1963) 221 Cal.App.2d 224; People v. Nieto (1966) 247 Cal.App.2d 364), and argues that because he was not the owner or driver of the car, “‘dominion and control may not be inferred solely from the fact of [E.P.’s] presence, even where the evidence shows knowledge of the presence of [the contraband].’” As noted above, however, there was substantial evidence, in addition to E.P.’s mere presence in the car, to establish that E.P. had constructive possession of the gun.
In addition, E.P. argues that there is insufficient evidence to establish that he was in constructive possession of the gun because, although the gun was found on the backseat floorboard near his feet, another minor was also in the back seat of the car and, therefore, E.P. did not have the exclusive right to exercise control over the gun. However, “[e]xclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others.” (People v. Rushing, supra, 209 Cal.App.3d at p. 622; People v. Showers (1968) 68 Cal.2d 639, 644; People v. Rogers (1971) 5 Cal.3d 129, 134 [constructive possession is demonstrated when the defendant maintains some control or the right to control the contraband in another’s actual possession].) Moreover, two or more individuals may jointly possess a single weapon. (People v. Hunt, supra, 221 Cal.App.2d at p. 227.)
E.P. also argues that there was no evidence about who owned the car or the gun, who placed the gun in the car, when or why E.P. got into the car, E.P.’s relationship to the other individuals in the car, or whether E.P.’s fingerprints were found on the gun. E.P. further contends the evidence showed that he was not in possession of ammunition for the gun, he did not flee the car, and he cooperated with the police. E.P., however, cites no legal authority that such matters are dispositive of the determination as to whether he constructively possessed the gun. There was sufficient evidence to support the adjudication.



DISPOSITION
The juvenile court’s order from which E.P. appeals is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.



MOSK, J.


We concur:



ARMSTRONG, Acting P. J.



KRIEGLER, J.


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