In re Oliver R. CA3 ( 2013 )

Filed 6/27/13 In re Oliver R. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(San Joaquin)
----
In re OLIVER R., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE, C071626
Plaintiff and Respondent, (Super. Ct. No. 68978)
v.
O.R.,
Defendant and Appellant.
Delinquent minor Oliver R. appeals from a dispositional order, raising a number of
contentions, most of which are conceded by the People. We hold substantial evidence
supports the finding that the minor unlawfully possessed a firearm and ammunition,
modify the dispositional order in several respects, and otherwise affirm.
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BACKGROUND
A. Procedure
On December 13, 2011, the minor admitted an allegation that he committed a
misdemeanor battery on school property (Pen. Code, § 243.2, subd. (a)).
On January 25, 2012, the minor was adjudged a ward, was granted probation, and
placed in the custody of his mother.
In February 2012, a violation of probation petition (VOP) was filed, as well as a
new delinquency petition alleging new offenses. The juvenile court found the minor
unlawfully possessed a firearm and ammunition, and actively participated in a criminal
street gang (Pen. Code, §§ 186.22, subd. (a), 29610, 29650) and the juvenile court
thereupon sustained the VOP.
On June 25, 2012, the minor was continued as a ward and placed on probation in
the custody of his parents, with various conditions including service of a 60-day term in
juvenile hall.
On July 12, 2012, the minor timely filed this appeal.
B. Facts
The evidence relevant on appeal, viewed in the light favorable to the juvenile
court’s findings (see In re Ryan D. (2002) 100 Cal.App.4th 854, 859), is not disputed.
On the evening of February 24, 2012, the minor was a rear-seat passenger in a car
with defective brake lights that contained five people. Two were in the front seat. The
minor, another juvenile, and an adult were in the backseat, with the minor behind the
front driver’s seat, the other juvenile in the middle, and the adult behind the front
passenger’s seat. The car was a known Sureño “gang” car (the “Varrio Mojado Sureño”
or “Wet Town” Sureño gang), and its passengers were wearing blue, the color associated
with the Sureño gang. The car was in rival Norteño territory. When spotted by police,
the driver sped off, and the car ultimately crashed. On the rear floorboards was a loaded
gun stolen during a burglary a day or two before. According to a pursuing officer, during
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the chase the occupants “were all talking to one another and it looked like items were
being passed to one another.” After the crash, as another officer stood outside the car,
“after the front passenger came out, the seat was pushed forward” and the officer could
see the gun on the rear floorboards, leaning against the center console.
DISCUSSION
I
Substantial Evidence
The minor contends that no substantial evidence shows he had possession of the
loaded gun found in the backseat. We disagree.
We must view the evidence in the light favorable to the juvenile court’s findings
(In re Ryan D., supra, 100 Cal.App.4th at p. 859), a standard of review acknowledged by
the minor but partly disregarded in his briefing of this issue on appeal.
“To establish constructive possession, the prosecution must prove a defendant
knowingly exercised a right to control the prohibited item, either directly or through
another person. [Citations.] Possession may be shared with others. [Citation.] But mere
proximity to the weapon, standing alone, is not sufficient evidence of possession.”
(People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417 (Sifuentes).)
“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. [Citation.] Possession of a weapon may be proven
circumstantially, and possession for even a limited time and purpose may be sufficient.”
(In re Daniel G. (2004) 120 Cal.App.4th 824, 831.)
Here, the car was associated with one gang, but was in a rival gang’s territory.
When the police were spotted, the driver fled, and the occupants were talking and moving
“items” around. The gun was visible to an officer standing outside the car, once the front
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passenger seat was pushed forward. There was substantial evidence that the minor was a
member of the “Wet Town” Sureño gang. The other occupants in the car were gang
members or gang associates.
The juvenile court could rationally find on these facts that the minor, along with
the other rear-seat passengers, each knew about and had control over the gun.
The minor relies heavily on Sifuentes, supra, 195 Cal.App.4th 1410. In that case,
officers entered a motel room to find Sifuentes on one bed, and Lopez, a fellow gang
member, near a second bed; a gun was under the mattress of that second bed. (Sifuentes,
supra, at pp. 1413-1414.) A gang expert testified gang members share information about
the possession and location of guns. (Id. at p. 1415.) The Sifuentes court held no
substantial evidence showed Sifuentes had the right to control the gun, even if it could be
inferred that he knew of its presence, because the gang expert did not testify each gang
member had the right to control a “gang” gun. (Id. at pp. 1417-1419.)
Sifuentes does not advance the minor’s claim because in that case the gun was
clearly in the possession and control of Lopez, and it would take an inordinate chain of
inferences to show Sifuentes also had the right to control it, namely, that he knew Lopez
had a gun, that it was a gang gun, and--absent expert testimony--that each member of that
gang had a right of access to any gang gun belonging to any gang member.
Here, the gun was found in the backseat of a car, equally accessible to any of the
rear-seat passengers, each of whom was a gang member or associate. Joint possession of
contraband is shown where it is “immediately accessible to [multiple persons] in a place
under their control.” (People v. Austin (1994) 23 Cal.App.4th 1596, 1609, disapproved
on another point in People v. Palmer (2001) 24 Cal.4th 856, 861, 867.) The rear seat was
a place under the minor’s control, and the gun was “immediately accessible” to him.
Substantial evidence shows he possessed it.
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II
Maximum Possible Confinement Time
The juvenile court calculated the maximum possible confinement time as four
years and six months. On appeal the minor challenges the court’s math, and separately
contends the sentences on two counts should have been stayed pursuant to Penal Code
section 654 (section 654). The People concede error as to each of these claims. We
agree with the parties.
The ammunition the minor possessed was in the gun. In such circumstances,
section 654 precludes separate punishment for the ammunition and for the gun. (People
v. Lopez (2004) 119 Cal.App.4th 132, 137-138.) Similarly, the active gang charge was
also based on possession of the gun, precluding separate punishment for the gang charge.
(People v. Mesa (2012) 54 Cal.4th 191, 200-201.)
The correct maximum possible confinement time is as follows: The upper term of
three years for the principal offense of unlawful possession by a minor of a firearm, plus
one-third the maximum term for misdemeanor battery on school grounds as sustained in
the prior petition, or four months. (Pen. Code, §§ 18, 243.2, subd. (a), 1170.1, subd. (a),
29610, 29700, subd. (a)(3); Welf. & Inst. Code, § 726, subd. (c).) The one-third
midterms of two months for possession by a minor of ammunition (Pen. Code, §§ 19,
29700, subd. (b)) and eight months for the active gang charge (id., § 186.22, subd (a))
must be stayed pursuant to section 654.
We shall modify the dispositional order by specifying that the maximum possible
confinement time is three years and four months.
III
Predisposition Credits
When the juvenile court imposed a 60-day term in juvenile hall, it credited the
minor with the 34 days of credit for the time spent in custody on this case. The minor
contends, and the People concede, that because the juvenile court had aggregated the
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current and prior petitions, the minor was entitled to an additional 31 days of credit for
the time he spent in custody on the earlier petition.
We agree. (See In re Stephon L. (2010) 181 Cal.App.4th 1227, 1231-1233; In re
Emilio C. (2004) 116 Cal.App.4th 1058, 1067-1068.) We shall modify the dispositional
order by specifying that the minor is entitled to a total of 65 days of predisposition
custody credit.
IV
Weapons Non-Association Probation Condition
Without objection, the juvenile court imposed the following probation condition:
“You are not to own, possess or knowingly associate with anyone who has any firearm or
any deadly weapon of any kind including a replica of any weapon.”
On appeal the minor contends the provision is overbroad because, “Putting aside
that practically anything can be a dangerous weapon, numerous people lawfully possess
firearms, most notably police officers. The term would literally prohibit appellant from
seeing his probation officer or going to court.
The People agree in part, conceding that the probation condition must be modified,
absent objection in the juvenile court, because the term is facially overbroad. (See In re
Sheena K. (2007) 40 Cal.4th 875, 885-889.)
The People point out that the term “deadly weapon” is not overbroad, but has a
settled meaning. (See In re R.P. (2009) 176 Cal.App.4th 562, 566-568 [upholding
condition forbidding minor from possessing a “dangerous or deadly weapon”].) In the
reply brief, the minor disavows any claim to the contrary. However, the parties agree the
non-association provision should apply only to persons the minor knows are unlawfully
possessing weapons. We agree with the parties.
The challenged probation condition is modified to read: “You are not to own or
possess any firearm or deadly weapon of any kind, including a replica of any firearm or
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deadly weapon, and you are not to knowingly associate or remain with anyone who
unlawfully possesses any firearm or deadly weapon of any kind.”
DISPOSITION
The delinquency dispositional order is affirmed as modified. The juvenile court is
directed to prepare a new dispositional order reflecting the described modifications.
DUARTE , J.
We concur:
NICHOLSON , Acting P. J.
MAURO , J.
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