In re Isidro L.
Filed 5/21/13 In re Isidro L. CA2/7
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re ISIDRO L., a Person
Coming Under the Juvenile Court Law.
B240450
(Los Angeles
County
THE PEOPLE,
Plaintiff and Respondent,
v.
ISIDRO L.,
Defendant and Appellant.
Super. Ct.
No. JJ19429)
APPEAL from
an order of the Superior Court
of
County, Donna Quigley Groman, Judge. Affirmed.
Holly
Jackson, under appointment by the Court of Appeal, for Minor and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, James William Bilderback II, Supervising Deputy
Attorney General, Alene M. Games, Deputy Attorney General, for Plaintiff and
Respondent.
________________________
Appellant Isidro
L. appeals from the judgment entered following the juvenile court’s finding he
was a minor in possession of a firearm
and ordering him home on probation (Welf. & Inst. Code, § 602; Pen. Code, §
29610). Appellant contends the evidence
was insufficient to establish that he possessed a firearm. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The People’s Evidence
Los Angeles Police Department
Officer Abel Estopin testified that on January
26, 2012, at approximately 3:50
p.m., he and his partner, Officer Padilla, responded to a report of
a gang fight at 82nd Street
and Broadway in Los Angeles. Upon arrival at the scene, Officer Estopin
observed 15 to 20 young men fighting in the middle of the street “just east of
his location, at Grand and 83rd.†He saw
appellant with the group, but did not see appellant fighting or throwing any
punches. When the men saw the patrol
vehicle approaching, they began to disperse.
Officer Estopin stated, “Half of the group went to the south side of the
street and the other half went to the north side of the street.†Appellant was at the tail end of the group of
eight to ten men who walked toward the north sidewalk.
From a distance of 20 to 30 feet,
Officer Estopin observed appellant walk from the middle of the street toward
the sidewalk, holding an object that looked like the handle of a gun. He stated, “I could see him gripping
something in his waistband. Looks to me
like he what [sic] is holding a grip of a gun.â€
He continued, “It was to his right side almost and it appeared to be the
shirt was covering. I could not tell if
it was a gun or not.â€
As appellant walked onto the
sidewalk, he crouched down quickly behind a large pile of trash that was
“parked†along the curb next to the sidewalk.
At that point, Officer Estopin could only see the top of appellant’s
shoulders and head. Officer Estopin testified
that he was 10 to 15 feet away when he heard a “metallic clanking noise†coming
from the location where appellant had knelt.
Appellant then stood back up and continued to walk westbound along the
sidewalk behind the rest of the group.
While the other men ahead of appellant had walked past same the trash
pile, Officer Estopin did not see any of them crouch down; he did not hear any
other object drop to the ground.
Officers
Estopin and Padilla next ordered the men on both sides of the street to stop,
face the wall, and place their hands behinds their backs. Officer Estopin testified that after backup
units arrived, he walked to where he had heard the clanking noise and recovered
a .25-caliber semiautomatic handgun from the ground. The gun contained no magazine, but there was
a live round in the chamber. Officer
Estopin also recovered a “small souvenir type baseball bat,†around 18 inches
long, from the same area where the gun was recovered.
2. The Defense Evidence
Appellant did not testify in his
own behalf. The defense presented a
fingerprint expert who testified that based on his visual inspection and
application of fingerprint powder, there were no identifiable fingerprints on
the gun.
Warren Galdanz also testified as a
witness. Galdanz rented a room in
appellant’s mother’s house, and had known appellant for one year. He testified that on January 26, 2012, he was
driving home from the store when he saw about 12 young men fighting on the
sidewalk. He saw appellant with the
group, but did not see appellant fighting with anyone. According to him, appellant was “just
standing there†with one or two other men.
Galdanz
watched the fight for 10 to 15 minutes until the police arrived. He never saw appellant place his hand on his
waistband or crouch down behind a pile of trash. At no point did he see appellant with a gun
in his waistband. When the police
ordered the men to stop, Galdanz left.
3. Procedural History
On January
30, 2012, the Los Angeles County District Attorney filed a two-count petition
under Welfare and Institutions Code section 602 charging appellant with
possession of a concealable firearm (Pen. Code
and possession of a “billy, blackjack, etc.†(§ 22210, count 2). Appellant denied the allegations.
Prior to trial, the juvenile court
heard and granted appellant’s Pitchess
motion (Pitchess v. Superior Court
(1974) 11 Cal.3d 531; Evid. Code, §§ 1043-1045) seeking disclosure of the
personnel records of Officers Estopin and Padilla. The court conducted an in
disclosed to the defense.
At the conclusion of the hearing on
March 13, 2012, the juvenile court found true the allegation that appellant was
in possession of a firearm as a minor and sustained the petition as to count
1. On the People’s motion, count 2 was
dismissed.
At the
disposition hearing on April 11, 2012, the juvenile court adjudicated appellant
a ward of the court, declared the offense to be a felony, and ordered him home
on probation. Appellant received 22 days
of predisposition credit.
DISCUSSION
Appellant contends
there is insufficient evidence to support the possession of a firearm by a
minor allegation. Specifically, he
argues there was no evidence he was in constructive possession of the weapon.
I. Standard of Review
A juvenile appeal is subject to the
same standards that govern review of adult criminal convictions. (In re
Muhammed C. (2002) 95 Cal.App.4th 1325, 1328; In re Roderick P. (1972) 7 Cal.3d 801, 809.) “[T]he 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.]†(
1053.)
“The standard
of appellate review is the same in cases in which the People rely primarily on
circumstantial evidence.
[Citation.] Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence
is susceptible to two interpretations, one of which suggests guilt and the other
innocence [citations], it is the jury, not the appellate court which must be
convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If 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 the reversal of the judgment.â€â€™
[Citations.] ‘Circumstantial
evidence may be sufficient to connect a defendant with the crime and to prove
his guilt beyond a reasonable doubt.’
[Citation.]†(
932-933.)
II. Substantial Evidence
Supports the Finding Appellant Possessed a Firearm
Section 29610 provides: “A minor shall not possess a pistol,
revolver, or other firearm capable of being concealed upon the person.†“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. 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.†(In re
Daniel G. (2004) 120 Cal.App.4th 824, 831; see also People v. Pena (1999) 74 Cal.App.4th 1078, 1083-1084 [An individual
has constructive possession “when the weapon, while not in his actual
possession, is nonetheless under his dominion and control, either directly or
through others.â€].) Possession can be shown
by circumstantial evidence and may be inferred from the defendant’s
conduct. (People v. Rushing (1989) 209 Cal.App.3d 618, 622-623.)
Appellant maintains that his mere
proximity to the weapon was not sufficient to establish constructive
possession; the prosecution must prove he knowingly exercised dominion and
control over the weapon. In support of
his position, appellant cites People v.
Sifuentes (2011) 195 Cal.App.4th 1410.
Sifuentes involved a “gang
gun,†which was found under a mattress in a motel room occupied by two
defendants and two females. (
for possession of a firearm by a felon (and the attendant gang enhancement),
concluding there was no substantial evidence the defendant had control of the
gun in light of the fact that the expert did not testify that any gun possessed
by a gang member was a gang gun, that the subject gun was a gang gun or that
all gang members always had the right to control a gang gun. (Id.
at pp. 1417-1420.) Instead, the expert
only testified that a gang gun was accessible to gang members at most
times. (Id. at p. 1417.)
Sifuentes
is inapposite, as evidence here established more than the mere presence of a
gun. Unlike in Sifuentes, there was substantial
trier of fact could infer that appellant had possession of the handgun, and
that he exercised dominion and control over it.
Officer Estopin testified that when he arrived on the scene, he saw
appellant holding an object that looked like the handle of a gun. Moments later, he observed appellant crouch
down behind a large pile of trash and “simultaneously†heard a metallic
clanking noise coming from this location.
He stated that it “sounded like a metal object hitting concrete.†Officer Estopin later discovered the handgun
in the same place where he had seen appellant kneel down. He did not see any of the other men crouch
down behind the trash pile, nor did he hear any other object drop to the
ground.
This testimony was sufficient to
establish possession. (See
150 [The testimony of one witness is sufficient to constitute substantial
evidence, unless it is physically impossible or inherently improbable].) The officer’s testimony as to what he saw,
heard, and retrieved was neither physically impossible nor inherently
improbable.
Appellant cites to other evidence
raising doubts concerning dominion and control—particularly Galdanz’s testimony
that he never saw appellant holding a gun, or crouching down behind a pile of
trash. The juvenile court, sitting as
the trier of fact, could reasonably reject Galdanz’s testimony contradicting
the officer’s testimony regarding appellant’s movements. Where, as here, the factual determination
made by the trier of fact is supported by substantial evidence, we must accord
due deference to that determination and may not substitute our own evaluation
of the witnesses’ credibility. (
303-304.) Substantial evidence supports
the conviction.
The juvenile court’s order is
affirmed.
ZELON,
J.
We concur:
PERLUSS, P.
J.
WOODS, J.
name="_ftn1" title="">[1] Unless
otherwise indicated, all further statutory references are to the Penal Code.
