In re R.R.

Filed 10/17/08 In re R.R. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant and appellant R.R. appeals from the juvenile courts order sustaining the charge in count 2 of a petition filed pursuant to Welfare and Institutions Code section 602,[1] alleging that he violated a court order by possessing gang drawings and failing to register as a gang member. We affirm.

Background

On December 12, 2007, the District Attorney for Solano County filed a section 602 juvenile wardship petition in three counts. Count 1 alleged that defendant committed a misdemeanor in violation of Penal Code section 186.33, subdivision (a) by failing to register as a gang member. Count 2 alleged defendant violated a prior court order dated September 21, 2006, by possessing gang drawings and failing to register as a gang member. Count 3 alleged defendant violated a prior court order dated September 21, 2006, by associating with gang members and failing to obey all laws.

A contested hearing was held on January 7, 2008.[2] In regard to the allegations in counts 1 and 2 failure to register as a gang member and possession of gang drawings the prosecution called Officer Kevin Coelho of the Vallejo Police Department (Department). Coelho testified that he is the Departments custodian of records for gang registrants and also supervises an FBI gang task force. Coelho stated that to register as a gang member, a person makes an appointment with Officer Tribble at the Department and then appears for interview and completion of the necessary paperwork. Coelho stated he knew defendant from prior contacts. Also, Coelho testified that he is personally notified if anyone comes into the Department and registers as a gang member, and to his knowledge defendant had not registered.

Further, Coelho stated that on December 10, 2007, he conducted a probation search at defendants home. He went into defendants bedroom and found defendant lying on the bed. Under the mattress of the bed, Coelho found an envelope containing gang-related drawings. Coelho described the drawings as follows:  BBH stands for Brown Brotherhood, which is the Vallejo clique of the Sureno gang. 13 is the number that is associated with the Sureno gang. . . . And the West Vallejo Homies is . . . the term used with the Sureno Brown Brotherhood . . . gang members that I have had contact with, previously to that particular day. On cross-examination, Coelho acknowledged defendant shared the bedroom with his little brother. On redirect, Coelho said there was only one bed in the room, but there was indication by clothing and papers that there were two people in that room.

In regard to the allegation in count 3failure to obey all laws in violation of a prior court orderthe prosecution called Sarita Trujillo, who testified that her red Honda Civic was taken from her residence without her consent on December 7, 2007. Further, City of Martinez Police Officer Charles Buda testified that while on patrol early on December 8, 2007, he stopped a red Honda Civic and was informed by dispatch the vehicle had been reported as stolen. Buda identified defendant as driver of the vehicle. Defendant told Buda hed picked the vehicle up a couple of hours before at a party in Vallejo and knew it was stolen.

After presentation of evidence and argument of counsel, the juvenile court sustained the allegations in counts 1 and 2. As to the allegations in count 3, the juvenile court sustained the allegation defendant failed to obey all laws but found insufficient evidence to sustain the allegation he had associated with gang members.

At a dispositional hearing on January 22, 2008, the juvenile court declared continuing wardship and committed appellant to New Foundations for a maximum period of five years. Appellant filed a timely notice of appeal on January 25, 2008.

Discussion

Count 2 of the petition alleged defendant violated a prior court order dated September 21, 2006, by possessing gang drawings and failing to register as a gang member. Defendant contends the juvenile courts finding that he possessed the gang drawings should not be sustained because the drawings were found in a room defendant shared with his little brother, and no evidence linked defendant in particular to the drawings. We disagree.

Defendant acknowledges the juvenile courts finding that he violated the conditions of a prior court order by possessing gang-related drawings is governed by the preponderance of the evidence standard, pursuant to section 777, subdivision (c). (In re Eddie. M. (2003) 31 Cal.4th 480, 503-508.) In reviewing the sufficiency of the evidence for the juvenile courts finding, we must give all reasonable inferences . . . to support the findings and orders of the juvenile court and the record must be viewed in the light most favorable to those orders. [Citation.]  (Citation.) Evidence sufficient to support the courts finding must be reasonable in nature, credible, and of solid value; it must actually be substantial proof of the essentials that the law requires in a particular case. [Citation.] (Citation) [W]e . . . must uphold the trial courts findings unless it can be said that no rational factfinder could reach the same conclusion. [Citation.] (Citation.) (In re Athena P. (2002) 103 Cal.App.4th 617, 628-629.)

Moreover, possession of contraband is shown by either physical or constructive possession thereof coupled with knowledge of the presence and narcotic character of the drug. (Citations.) Constructive possession occurs when the accused maintains control or a right to control the contraband; possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused and subject to his dominion and control, or to the joint dominion and control of the accused and another. (Citation.) [] The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence. (Citations.) (People v. Williams (1971) 5 Cal.3d 211, 215.)

Here, although there was evidence defendant shared the bedroom with his little brother, there was no evidence concerning the younger brothers age, whether he slept in the bedroom or used it for other purposes, whether he was capable of sketching the gang-related drawings, or whether or not he had any prior gang-affiliations. In short, there was no evidence linking defendants little brother to the gang drawings except the bare fact that he shared the room with defendant.

On the other hand, there was substantial evidence tying defendant to the gang drawings. Officer Coelho found the gang drawings in defendants bedroom secreted under the mattress of defendants bed. Moreover, defendant was lying on the bed when Coelho entered the bedroom. Furthermore, defendant had a history of gang association that linked him to the drawings. Indeed, the juvenile court took judicial notice of the prior September 2006 dispositional order that required defendant to register as a gang member. In sum, we conclude sufficient circumstantial evidence existed from which the juvenile court could infer by a preponderance of the evidence that defendant, rather than his little brother, had dominion and control over, as well as knowledge of the presence and character of, the gang-related drawings found secreted under the mattress of his bed.[3]

Disposition

The juvenile courts order is affirmed.

_________________________

Jenkins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Siggins, J.

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[1] Further statutory references are to the Welfare and Institutions Code unless noted otherwise.

[2] At the hearing, the prosecutor asked the juvenile court to take judicial notice of the minute order dated September 21, 2006, and the court did so without objection from defense counsel.

[3] Accordingly, we need not address respondents argument that defendant constructively possessed the drawings under the standard of review applicable to a claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal.