In re R.S. CA1/4 ( 2024 )

Filed 5/31/24 In re R.S. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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 FOUR
In re R.S., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A167288
v. (Alameda County
R.S., Super. Ct. No. JV02927910)
Defendant and Appellant.
At the conclusion of a contested jurisdictional hearing, the juvenile
court found true allegations that R.S. (the minor) committed possession of a
firearm by a minor (a handgun) and possession of an assault weapon (a
pistol). The juvenile court declared the minor a ward of the court and placed
him on probation. On appeal, the minor contends there is insufficient
evidence he possessed the firearms. We disagree and affirm.1
1 The jurisdictional hearing was held in Sacramento County Superior
Court. The matter was then transferred to Alameda County Superior Court
for disposition. The minor filed two defective notices of appeal: a premature
notice in Sacramento County (before the transfer) and an untimely notice in
Alameda County months after disposition. Nevertheless, the parties have
briefed the merits of the minor’s appeal without claiming any prejudice from
BACKGROUND
In 2022, the minor was a member of the Oakland gang Case, which is
aligned with the Sacramento gang G-Mobb Starz (Starz). He was at a house
in Sacramento with three Starz members. One of the Starz broadcast a video
to Instagram Live. The broadcast showed a split-screen video chat between
those at the house and a fourth Starz member who was driving his car “in the
field.” At the house, Starz member Nigel Patterson pointed an assault-style
pistol at the camera; another Starz member made a hand sign used by the
gang. Then the minor appeared, chatting with the driver while someone at
the house moved the barrel of the pistol into the frame next to the minor’s
head. The group at the house left the chat.
The minor then broadcast a video from his own Instagram account. He
filmed himself walking through the house, speaking to the camera, and
making hand signs linked to the Starz and other gangs. Midway through the
video, the minor looked offscreen and then angled his camera down to show
Starz member Steven Lindsey walking by with the pistol from the first video.
The minor said something unintelligible. A few seconds later, the minor
made a gang sign while stating, “You know what it is.”
After broadcasting these videos, the minor and the three Starz
members left the house in Patterson’s car, a Dodge Charger.2 The minor was
driving. A short time later, officers stopped the car and found a handgun
inside. The gun was underneath a sweatshirt and a shoe box on the raised
the faulty notices, which must be liberally construed. (Cal. Rules of Court,
rule 8.405(a)(3).) We therefore treat the premature notice of appeal as timely
filed and will reach the merits. (Id., rule 8.406(d); see Norco Delivery Service,
Inc. v. Owens–Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960–961.)
2 While it seems that the minor and the three Starz members entered
the Dodge Charger soon after leaving the house, the exact time is unclear.
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floorboard between where backseat passengers would sit, with the barrel
facing the front of the car and the grip facing the back. At the house where
the videos were filmed, officers found the pistol inside a backpack. The pistol
was loaded with five rounds of ammunition.
The district attorney filed a wardship petition alleging the minor
unlawfully possessed both the handgun (Pen. Code, § 29610) and the pistol
(id., § 30605, subd. (a)). At a contested jurisdictional hearing, the prosecution
introduced the Instagram videos broadcast by the minor and his associate. In
addition, a police officer testified as a gang expert. He explained that gang
members commonly use social media to broadcast their affiliations and
activities and to publicly disrespect their rivals. This includes displaying
firearms as “intimidation.” The officer opined that assault pistols like the
one shown in the videos are typically “gang guns,” which are shared among
members of the gang because they are expensive and hard to conceal and
carry. Such weapons tend to be shared on “an if-needed kind of basis,” either
to display on social media or to commit a shooting. It is common for a gang
gun to be shared across allied gangs. Access is typically granted to “whoever
needs it, or whoever is trusted enough to have it.” The expert concluded the
pistol shown in the videos was a gang gun.
At the conclusion of the hearing, the juvenile court found both counts
true beyond a reasonable doubt based on a theory of constructive possession.
The juvenile court found it “[s]ignificant[]” that the minor “broadcast his own
live-stream of events in the residence” and that he “mov[ed] the focus of the
camera from his own face to Lindsey . . . holding the assault weapon” and
“referr[ed] to the assault weapon” by stating, “ ‘You know what it is.’ ” The
juvenile court explained that the minor’s video broadcast—with the Starz
members’ cooperation—of “his gang membership and affiliation with other
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gang members,” “his taunting of rivals,”3 and “his association with an assault
weapon” demonstrated the pistol was shared and the minor had the right to
control it. Considering the “nature of th[e] relationship” between the minor
and the three Starz members, “the threats and intimidation” the minor had
broadcast, and the shared pistol, the court found the handgun was meant “to
provide protection for all four” individuals in Patterson’s car and was “to be
used by any of the four for that purpose”; the court determined all four were
aware the handgun was in the car. The court declared the minor a ward of
the court (Welf. & Inst. Code, § 602) and placed him on probation.
DISCUSSION
The minor contends insufficient evidence supports the juvenile court’s
findings that he had constructive possession of the pistol and the handgun.
Applying our deferential standard of review, we must disagree.
I. Standard of Review
“The standard of review in juvenile proceedings involving criminal
behavior is the same as that required in adult criminal trials: We review the
entire record in the light most favorable to the judgment to determine
whether substantial evidence supports the charge, so that a reasonable trier
of fact could find guilt beyond a reasonable doubt.” (In re M.V. (2014)
225 Cal.App.4th 1495, 1518.) Substantial evidence must be of ponderable
legal significance and must be reasonable, credible, and of solid value. (In re
S.F. (2023) 91 Cal.App.5th 696, 713.) In reviewing for such evidence, we
resolve neither credibility issues nor evidentiary conflicts, for these are the
exclusive province of the trial judge. (People v. Maury (2003) 30 Cal.4th 342,
403.) We accept logical inferences from circumstantial evidence. (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) But a reasonable inference may not
3 The “taunting” appears to have been misattributed to the minor.
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rest on suspicion alone; a finding of fact must be based on evidence rather
than mere speculation. (People v. Davis (2013) 57 Cal.4th 353, 360.)
II. Constructive Possession
To possess a firearm means having actual control, care, and
management of the weapon. (In re Charles G. (2017) 14 Cal.App.5th 945,
951.) “Possession may be actual or constructive.” (Ibid.)
Constructive possession requires the knowing exercise of a right to
control, either directly or through another person. (People v. Bay (2019)
40 Cal.App.5th 126, 132 (Bay).) This encompasses a potentially wide variety
of conduct in a range of settings showing a person exercised such intentional
direction over contraband that they may fairly be punished as if they had
physical possession. (People v. Scott (2009) 45 Cal.4th 743, 757.) Where
contraband was in the physical custody of another person, possession may be
imputed to an accused who had an immediate right to exercise control over
the item (People v. Francis (1969) 71 Cal.2d 66, 71 (Francis)) or who “directed
or instructed” the other person to act (Presbyterian Camp & Conference
Centers, Inc. v. Superior Court (2021) 12 Cal.5th 493, 507, fn. 9). Possession
also may be found when contraband was in a place subject to the joint control
of the accused and others. (Francis, at p. 71.)
Though possession may be shared, mere proximity or opportunity to
access contraband—by itself—is not sufficient to infer possession. (Bay,
supra, 40 Cal.App.5th at p. 132.) “Nor is knowledge of a gun’s presence.” (In
re I.A. (2020) 48 Cal.App.5th 767, 779 (I.A.).) Something more is required to
support the inference, though the extra support may be rather slight. (In re
Anthony J. (2004) 117 Cal.App.4th 718, 728.)
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III. Substantial Evidence That the Minor Possessed the Pistol
Shown in the Videos
The minor claims there was no evidence he had control over the pistol,
an apparently shared weapon of a gang to which he did not belong.
The minor’s Instagram video supports the juvenile court’s contrary
inference. The court found the minor focused his camera to broadcast an
allied Starz gang member holding the pistol, then referred back to the
weapon by stating, “You know what it is.” Based on these findings, it would
be reasonable to infer that the minor and the Starz member coordinated the
display of the gun, whether verbally or non-verbally. This inference is
bolstered by the expert’s testimony that gang guns are commonly shared by
allied gangs, including for display on social media. The juvenile court’s
findings that the minor and the Starz members shared the pistol and that the
minor had the right to control it are supported by substantial evidence. (See
People v. Miranda (2011) 192 Cal.App.4th 398, 410–411 [circumstantial
evidence supported inference that defendant had at least joint control over
shotgun tossed from car he rode in with others].)
The minor contends there was insufficient evidence he had a right to
actually “hold” or “use” the pistol. But possession of a weapon “for even a
limited time and purpose” may support a finding of guilt beyond a reasonable
doubt. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) The crime is
committed when the accused “ ‘in any way’ ” has a firearm within their
control: they need not be armed with it or have it readily available to deploy.
(People v. Blakely (2014) 225 Cal.App.4th 1042, 1052, quoting People v.
Ratcliff (1990) 223 Cal.App.3d 1401, 1410.) Here, even though the minor did
not wield the pistol himself, it was reasonable for the juvenile court to infer
that he used it to show his Starz affiliates did and thereby intimidate others.
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This evidence is sufficient to support the trial court’s finding of constructive
possession. (See People v. Vanderburg (1963) 214 Cal.App.2d 455, 458–460
[defendant had possession of gun he pawned, even assuming it belonged to
someone else who carried it into the pawnshop].)
Similarly unpersuasive is the minor’s reliance on People v. Sifuentes
(2011) 195 Cal.App.4th 1410 (Sifuentes).4 There, police officers found the
defendant in a motel room with a fellow gang member and two women. (Id.
at pp. 1413–1414.) There were two beds. (Id. at p. 1414.) The defendant was
on the first bed near the door while the other gang member knelt by the
second bed. (Ibid.) The officers found a gun under the mattress of the second
bed. (Ibid.) An expert testified generally concerning gang guns, explaining
that aside from “certain restrictions,” they are accessible to all gang members
“[a]t most times.” (Id. at p. 1415.) Sifuentes held this testimony was
inadequate to support the defendant’s conviction for possession of his fellow
gang member’s gun, explaining that even assuming the weapon was a gang
gun, the expert “testified certain restrictions applied” to accessing such guns
and “did not explain these restrictions” or link the defendant “to the
particular firearm” found next to his associate. (Id. at p. 1419.) But the
circumstances in Sifuentes were different: the defendant was not doing
anything gang-related when the gun was discovered under his companion’s
mattress. (See id. at pp. 1417–1418.) Here, the juvenile court found that the
minor and his associates displayed the pistol in gang-related videos for
purposes of “intimidation.” An expert testified that the pistol was a gang gun
and such guns are commonly displayed by allied gang members on social
media.
4 Sifuentes was disapproved on another ground in People v. Farwell
(2018) 5 Cal.5th 295, 304, fn. 6.
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In sum, we conclude substantial evidence supports the juvenile court’s
finding that the minor had constructive possession of the pistol.
IV. Substantial Evidence that the Minor Possessed the Handgun
Found in the Car
The minor contends there was no substantial evidence he had control
over the handgun found in Patterson’s car, or even that he knew it was there.
As previously mentioned, constructive possession may be found where
contraband is in a place subject to joint control by the accused and others.
(Francis, supra, 71 Cal.2d at p. 71.) Here, the minor drove the car where the
handgun was found, “supporting an inference that he had the right to
exercise . . . control” over the vehicle and its contents. (People v. Valerio
(1970) 13 Cal.App.3d 912, 923.) Other circumstances reinforce this inference:
the occupants of the car were members of affiliated gangs who, as the
juvenile court observed, had just broadcast “threats and intimidation” to
rivals and might need to defend themselves from responsive attacks. The
court’s inference of control is reasonable even though the minor did not own
the car he was driving and despite the lack of expert testimony that the
handgun was a gang gun. (See People v. Taylor (1984) 151 Cal.App.3d 432,
434, 436 [driver had constructive possession of gun apparently thrown by
passenger from a third party’s car]; cf. I.A., supra, 48 Cal.App.5th at pp. 771,
778–779 [no constructive possession of gun shot by youth’s fellow gang
member merely because youth was in a car behind the shooter’s car and had
once touched the gun].)
The context relied on by the juvenile court also supports an inference
that the minor knew the handgun was in Patterson’s car, particularly given
the court’s findings that the gun was accessible to everyone in the car and
may have been visible to the minor. (See Bay, supra, 40 Cal.App.5th at
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pp. 130, 132 [driver’s knowledge of drugs in backpack supported inference he
controlled all its contents, including pistol registered to individual linked only
to others in the car]; People v. Gant (1968) 264 Cal.App.2d 420, 424–425 [car
occupants’ knowledge appropriately inferred from proximity and accessibility
of guns to each].)
There is substantial evidence in the record to support the juvenile
court’s finding of true as to both counts beyond a reasonable doubt based on a
theory of constructive possession.
DISPOSITION
The judgment is affirmed.
HITE, J. *
We concur:
BROWN, P. J.
STREETER, J.
People v. R.S. (A167288)
* Judge of the Superior Court of California, City and County of San
Francisco, assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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