In re J.A.

 

 

 

 

 

 

 

 

Filed 8/27/13 
In re J.A. CA5

 

 

 

 

 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT

 
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In re J.A., a Person Coming Under the Juvenile Court Law.
THE PEOPLE,   Plaintiff and Respondent,                           v.   J.A.,   Defendant and Appellant.	F065390   (Super. Ct. No. JJD065276)     >OPINION

 

THE COURThref="#_ftn1"
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            APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Tulare
County.  Hugo J. Loza, Temporary
Judge.  (Pursuant to Cal. Const., art.
VI, § 21.) 

            Candice L.
Christensen, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Amanda
D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-



The court adjudged appellant, J.A.,
a ward of the court (Welf. & Inst. Code, § 602) after it sustained
allegations charging him with receiving
stolen property (Pen. Code, § 496d, subd. (a))href="#_ftn2" name="_ftnref2" title="">^[1] and resisting arrest (§ 148, subd.
(a)(1)).  On appeal, appellant contends
the evidence is insufficient to sustain the court’s true findings as to each of
these offenses.  We affirm.

FACTS

            At 10:00
p.m., on May 28, 2012, Daniel Ramos parked his Ford Thunderbird at his house in
Porterville and left the key under a seat. 
At 4:00 a.m., the following morning, Ramos discovered the car
missing. 

On May 29, 2012, at approximately
4:00 p.m., California Highway Patrol Officers Kenneth McCord and Jose Benitez
were in an unmarked patrol car when they located the Thunderbird in an
apartment complex parking lot in east Porterville.  The officers then began surveillance of the
car from several hundred feet away. 

Shortly before 6:00 p.m., appellant
and two other Hispanic males got into the Thunderbird, with appellant sitting
in the front passenger seat.  The
officers then drove into the parking lot to stop the Thunderbird, which by that
time had backed up and was ready to drive away. 
Officer McCord activated his patrol car’s emergency lights.  The driver of the Thunderbird attempted to
drive around the patrol car but Officer McCord was able to block his path.  Both officers exited the patrol car with
their badges and weapons at their sides, yelling, “Police officer, stop.”  Initially, appellant and the other males in
the Thunderbird complied with the officers’ commands not to move and to hold
their hands up.  However, the driver then
put the Thunderbird in reverse and revved up the motor, which caused the
vehicle to crash through an apartment wall into the apartment’s living room. 

Officer McCord approached the
passenger side window of the Thunderbird with his weapon drawn, continued to
identify himself as a police officer, and told appellant several times to keep
his hands up and not to move.  Appellant
initially kept his hands up but he lowered them when Officer McCord looked
toward the apartment.  Appellant then
opened the passenger door quickly, swiveled around, and lunged directly at
Officer McCord.  Officer McCord attempted
to kick appellant in his “body mass” but kicked him in the face instead. 

Appellant and the two other males
were arrested and taken to the hospital to get medically cleared.  While waiting in the emergency room,
appellant spontaneously told Officer McCord that he did not care about the stolen
vehicle charge because he was a juvenile and knew he would only receive a
couple of months in boot camp.

            Officer
Benitez testified that the Thunderbird was located a half-mile to three
quarters of a mile from where it was stolen and that appellant lived a
half-mile from the location of the theft. 
Neither appellant nor his cohorts lived at the apartment complex where
the Thunderbird was found.  

DISCUSSION

The Receiving Stolen Property Offense

Appellant contends the evidence is
insufficient to sustain the court’s true finding that he received stolen
property because it failed to establish he had knowledge the Thunderbird was
stolen; or that he exercised dominion and control over the vehicle.  We disagree.

“[T]o sustain a conviction for
receiving stolen property, the prosecution must prove (1) the property was
stolen; (2) the defendant knew the property was stolen; and, (3) the defendant
had possession of the stolen property. 
[Citations.]

“Possession of the stolen
property may be actual or constructive and need not be exclusive.  [Citations.] 
Physical possession is also not a requirement.  It is sufficient if the defendant acquires a
measure of control or dominion over the stolen property.”  (People
v. Land (1994) 30 Cal. App.4th 220, 223-224, fn. omitted (>Land).)

Something more than mere presence
or access to a stolen car is required to establish possession of a stolen
car.  “‘[D]ominion and control are
essentials of possession, and they cannot be inferred from mere presence or access.  Something more must be shown to support
inferring of these elements.  Of course,
the necessary additional circumstances may, in some fact contexts, be rather
slight.  [Citations.]  It is clear, however, that some additional
fact is essential.’  [Citation.]”  (Land,
supra, 30 Cal.App.4th at p. 225.)

“‘The credence and ultimate weight
to be given the evidence of the various particular circumstances are of course
for the trier of fact, and “[i]t is the trier of fact, not the appellate court,
that must be convinced of a defendant’s guilt beyond a reasonable doubt.”’  [Citation.]” 
(Land, supra, 30 Cal.App.4th at p. 228.)

An inference of possession may be
made from a passenger’s presence in a stolen vehicle coupled with other
circumstances such as the passenger’s knowledge that the vehicle was stolen,
presence in the car soon after it was stolen, friendship with the driver,
flight from police when the car is stopped, beneficial use of the car, and a
domicile close to the place of theft.  (>Land, supra, 30 Cal.App.4th at p. 227.)

Here, the court could reasonably
infer from appellant’s statement that he did not care about a stolen vehicle
charge that appellant was aware the Thunderbird was stolen.  Further, appellant and his confederates did
not live at the apartment complex where the Thunderbird was found, they were at
the complex for approximately two hours and upon leaving, appellant sat in the
front seat of the Thunderbird.  The court
could reasonably infer from these circumstances that appellant was friends with
the driver, that he rode in the Thunderbird to the apartment complex, and that
he was leaving in the Thunderbird before the police stopped it.  Additionally, appellant lived about half a
mile from the location of the theft, he was in the stolen car less than 24
hours after the theft, and he attempted to flee from the police after the car
crashed.  Thus, the record contains ample
evidence beyond appellant’s mere presence in the stolen Thunderbird which
supports an inference that appellant was in constructive possession of the
Thunderbird.

Appellant contends that his case is
similar to In re Anthony J. (2004)
117 Cal.App.4th 718 (Anthony J.), a
case in which a passenger in a stolen vehicle was found not to be in possession
of the vehicle.  In Anthony J., a witness saw a stolen BMW park in the parking lot of a
fitness center at 9:00 a.m. and four young men, including the appellant, exit
the vehicle.  The witness saw one of the
young men look back toward the BMW and then all four of them run away toward the
back entrance of the parking lot.  The
witness then saw a police car driving through the parking lot.  After the witness contacted the officers in
the police car, they contacted four young men at a bus stop and detained them
for being truant.  The keys to the BMW
were found five to ten feet from the bus stop. 
The witness was brought to the scene and identified one of the young men
as the driver of the BMW but was unable to identify any of the others including
the appellant.  The BMW, with the engine
running, had been stolen out of a driveway three days earlier at 6:00 a.m.  (Id. at
p. 722.)

            In finding
that the court erred in denying the appellant’s motion to dismiss at the end of
the prosecution case, the Anthony J.
court stated:

“The facts as they existed at
the close of the People’s case did not comport with those in Land, and >the People’s case at most demonstrated mere
presence by Anthony J. in the stolen vehicle.  The only evidence presented at that time was
that four young men got out of a car, they ran as a patrol car drove nearby, a
set of keys was found near them when they were detained, and the driver of the
vehicle was identified by a witness, but Anthony J. was not.  There were no facts showing that Anthony J.
and the driver were friends, that they had engaged in criminal activity together
in the past, that he was a passenger shortly after the vehicle was stolen, or
that Anthony J. and the driver jointly used the vehicle to commit crimes.  Thus, the People’s evidence did not
demonstrate beyond a reasonable doubt that Anthony J. had possession of the
vehicle, either actual or constructive.” 
(Anthony  J., supra,
117 Cal. App. 4th at p. 729, italics added.)

            >Anthony J. is inapposite because of the
circumstances discussed above from which the court could reasonably conclude
that appellant was in constructive possession of the stolen Thunderbird
including:  1) appellant’s presence in
the Thunderbird within 24 hours of when it was stolen; 2) his awareness that
the Thunderbird was stolen; 3) appellant’s friendship with the driver; and 4)
the consciousness of guilt he exhibited when he attempted to flee from Officer
McCord.  Accordingly, we conclude the
evidence supports the court’s finding that appellant received the stolen
Thunderbird.

The Resisting Arrest Offense

“Every person who willfully resists,
delays, or obstructs any ... peace officer ... in the discharge or attempt to
discharge any duty of his or her office or employment, when no other punishment
is prescribed ...” is guilty of a misdemeanor. 
(§148, subd. (a)(1).)

“‘The legal elements of a
violation of section 148, subdivision (a) are as follows: (1) the defendant
willfully resisted, delayed, or obstructed a peace officer, (2) when the
officer was engaged in the performance of his or her duties, and (3) the
defendant knew or reasonably should have known that the other person was a
peace officer engaged in the performance of his or her duties.
[Citations.]’  (People v. Simons
(1996) 42 Cal.App.4th 1100, 1108-1109 .…) 
The offense is a general intent crime, proscribing only the particular
act (resist, delay, obstruct) without reference to an intent to do a further
act or achieve a future consequence.”  (>In re Muhammed C. (2002) 95 Cal.App.4th
1325, 1329.)

Here, after the Thunderbird crashed
into the apartment, appellant willfully delayed Officer McCord in the
performance of his duties when he failed to obey the officer’s orders to keep
his hands up and not move and when he attempted to flee, which required the
officer to kick appellant in order to prevent him from exiting the car.

Appellant contends he did not
willfully fail to comply with the officer’s orders because he was “likely dazed
and in shock” as a result of the Thunderbird crashing into the apartment.  He further contends his conduct at most
amounts to a failure to act with alacrity, which did not rise to the level of
violating section 148.  We disagree.

Appellant’s claim that he did not
obey the officer’s commands because he was dazed and in shock is pure
speculation because the record does not contain any evidence that appellant suffered
any injuries in the crash that affected his mental functioning.  Accordingly, we also reject appellant’s
contention that the evidence is insufficient to support the court finding that
he violated section 148.

DISPOSITION

            The
judgment is affirmed.