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Court of Appeal, Fifth District, California.

IN RE: P.X., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. P.X., Defendant and Appellant.


Decided: January 20, 2012

Kendall Simsarian, 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, Carlos A. Martinez and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.



On May 9, 2011, following a contested jurisdiction hearing, the juvenile court found true an allegation that appellant, P.X., a minor, was in possession of a firearm capable of being concealed on one's person in violation of Penal Code section 12021, subdivision (a)(1) (section 12021(a)(1)).   On May 23, 2011, following the subsequent disposition hearing, the court readjudged appellant a ward of the court,1 continued him on probation and ordered that he serve 120 days in the Juvenile Justice Campus.

On appeal, appellant contends (1) the evidence is insufficient to support his adjudication of the instant offense, and (2) the court failed to declare whether that offense was a felony or misdemeanor, in violation of Welfare and Institutions Code section 702.   We affirm.

N.S. (N.) testified to the following:  On April 16, 2011 (April 16), she drove to the Lao New Year celebration at the Lao Temple, near Fruit and Jensen in Fresno, with A.T., who goes by the name Jimmy, David S. (David), and D.S. (D.), David's girlfriend.   Upon arriving at the event, she met her three-year-old daughter, S., and her parents.   After approximately two hours, she decided to take her daughter home, and shortly thereafter some kind of disturbance broke out.   At that point, Jimmy and David approached;  they, along with N., her daughter and D., got in the car;  and at some point appellant also got in the car.   Appellant sat in the back seat, directly behind N., who was in the driver's seat;  Jimmy was in the front passenger seat;  and David, D. and S. sat in the back seat with appellant.   After N. drove a short distance, police stopped the car.

City of Fresno Police Officer Michael Smith testified that at approximately 7:00 p.m. on April 16, he drove to the area of Fruit and Jensen in Fresno, in response to a report of a “large disturbance at the Lao New Year.” 2 As he approached, with his “lights and sirens activated,” he saw three persons “running from the disturbance,” two of whom got into an orange compact car.   The car drove north on Fruit, but the officer blocked its path with his vehicle, and both the officer's vehicle and the orange car stopped.   At that point, Officer Smith got out of his car.   It was still light out and the officer, who was standing directly in front of the car, approximately 18 to 20 feet away, and who had an unobstructed view and could “see ․ very well into” the car, saw “a lot of movement in the backseat, which kind of drew [his] attention to” appellant, who was the “passenger behind the driver.”   Appellant “was ․ sitting back up in the seat.”   His arms were “kind of moving” and his shoulders “kind of coming up,” “as if he were either discarding something or trying to grasp at something.”   Next, appellant “duck[ed] down behind the passenger's seat”;  “came back up”;  removed the cap he was wearing;  “kind of moved, again, to duck behind the seat”;  “and then ․ sat still.”   The officer could not see appellant's hands while appellant was moving around in the car.

Officer Smith described appellant's movements as “furtive.”   It appeared to the officer that appellant “was trying either to remove something from his pockets, waistband area, just his shoulder movements, or trying to hide something.”

The officer also had a “clear view” of David, who was sitting next to appellant in the back seat.   The officer could see David's arms and “most of his upper torso.”   The officer “[c]ouldn't see his hands, specifically, but [David] didn't cause [the officer] concern.”

Officer Smith removed Jimmy, D. and David from the car, conducted a patsearch of each of those persons and determined that none of the three had a weapon.   Officers Richard Badilla and Tom Gregory had arrived on the scene by then, and after N., her child and appellant were removed from the car, Officer Badilla searched the car.   Officer Badilla testified that N. consented to the search, during which he found a handgun “partially underneath the ․ driver's seat.”

N. testified to the following.   At no time on April 16 did she see a gun in her car or did she have a gun in her possession.   At no time that day did she see a gun in the possession of Jimmy, D. or David.

David testified that at no time on April 16 did he have a gun in his possession, and to his knowledge nobody in the car had a gun that day.

Jimmy testified that he did not see a gun in the car.

D. testified that on April 16 she did not have a gun in her possession and she did not see a gun in the possession of anybody in the car.


Sufficiency of the Evidence

Appellant argues that although “the gun [found in the car] reasonably can be inferred to have belonged to one of the vehicle's occupant's” and the gun was found closer to him than anyone else in the car, the evidence was insufficient to establish beyond a reasonable doubt that he “had dominion and control over [the gun] with knowledge of its presence.”   Therefore, appellant contends, his adjudication of violating section 12021(a)(1) cannot stand.


Possession may be actual or constructive.   Actual possession means the object is in the defendants immediate possession or control.   A defendant has actual possession when he himself has the weapon.   Constructive possession means the object is not in the defendants 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.)

When contraband is found in a place where the accused and others have access and over which none has exclusive control, “ ‘no sharp line can be drawn to distinguish the congeries of facts which will and that which will not constitute sufficient evidence of a defendants knowledge of the presence of [contraband].  (People v. Hutchinson (1969) 71 Cal.2d 342, 345 (Hutchinson )).   However, “the mere presence of the accused with others in a vehicle in which contraband is found ․ is not sufficient evidence, standing alone, to justify a conviction of possession [citations].”  (In re Elisabeth H. (1971) 20 Cal.App.3d 323, 330.)

Standard of Review

In general, in determining whether the evidence is sufficient to support a finding in a juvenile court proceeding, the reviewing court is bound by the same principles as to sufficiency and the substantiality of the evidence which govern the review of criminal convictions generally.  (In re Roderick P. (1972) 7 Cal.3d 801, 809.)   Those principles include the following:  “[T]he reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch 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.”  (People v. Kraft (2000) 23 Cal.4th 978, 1053.)  “[W]e do not reweigh the evidence;  the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact.”  (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)  “To warrant the rejection of the statements given by a witness who has been believed by the [trier of fact], there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions.”   (People v. Barnes (1986) 42 Cal.3d 284, 306, internal quotation marks omitted.)

“ ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ ”  (People v. Bean (1988) 46 Cal.3d 919, 933.)   However, “By definition, ‘substantial evidence’ requires evidence and not mere speculation.   In any given case, one ‘may speculate about any number of scenarios that may have occurred․  A reasonable inference, however, “may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work.   [¶] ․ A finding of fact must be an inference drawn from evidence rather than ․ a mere speculation as to probabilities without evidence.” ’ ”   (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.)  “Evidence which merely raises a strong suspicion of the defendant's guilt is not sufficient to support a conviction.”  (People v. Redmond (1969) 71 Cal.2d 745, 755.)


Appellant suggests the evidence was sufficient to establish no more than a “reasonable suspicion” that he possessed the gun found near where he was sitting in the car.   We disagree.

We find instructive Hutchinson, supra, 71 Cal.2d 342.   In that case, the mother of the 18–year–old defendant discovered marijuana in a closet and under a bed in a bedroom that the defendant shared with two brothers and a stepbrother.   Two of these boys were away on vacation (id. at p. 344) in the week preceding the discovery of the contraband, but the night before the discovery friends of defendant and his brothers and sisters had visited the house for a swimming party and the boys who attended such swimming parties dressed and undressed in the bedroom [where the marijuana was found] (id. at p. 345).   Our Supreme Court stated that if the evidence had shown only that the marijuana was hidden where it was found in the shared room, a finding of unlawful possession would not be supported.  (Id. at pp. 345–346.)   However, the fact that the defendant fled through his bedroom window when his mother threatened to call the police was sufficient additional evidence from which to draw an inference of consciousness of guilt, thereby justifying the giving of a jury instruction on the significance of flight.  (Id. at p. 346.)   The court stated:  The jury was not required to accept defendant's explanation that his flight was motivated only by a wish to escape from his mother's emotional outburst.   The jury could reasonably infer that his flight reflected consciousness of guilt and that he therefore knowingly possessed the marijuana found in the bedroom and closet.”  (Ibid.)

Thus, in Hutchinson the evidence was sufficient to establish possession where (1) the contraband was located in a place to which persons in addition to the defendant had access, and (2) there was conduct by the defendant indicating consciousness of guilt.   Here too, in addition to the evidence that contraband was found in a place in which persons in addition to appellant were present, there was evidence of consciousness of guilt, viz., Officer Smith's testimony as to appellant's movements in the car which suggested to the officer that appellant was moving or hiding something while being observed by law enforcement.   Thus, as in Hutchinson, the evidence was sufficient to establish constructive possession of the contraband.

Our conclusion is reinforced by other factors.   First, the gun was found closer to appellant than to any of the car's other occupants.   Second, Officer Smith observed appellant “duck behind the seat,” i.e., move his body toward the floor, where the gun was found.   Finally, N., David, Jimmy and Dall of the car's occupants who were capable of testifyingtestified that they were unaware of the gun's presence in the car.3  Under the principles summarized above, the court was entitled to credit this testimony and therefore reasonably could infer that appellant, and not any of the other occupants of the car, brought the gun into the car.   On this record, there was ample support for the conclusion that appellant was in constructive possession of the gun found in the car.

Welfare and Institutions Code Section 702

Welfare and Institutions Code section 702 (section 702) provides, in relevant part:  “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.”   Such an offense is commonly called a wobbler.  (In re Manzy W. (1997) 14 Cal.4th 1199, 1201 (Manzy W.).)   The purpose of section 702 is two-fold:  (1) to provid[e] a record from which the maximum term of physical confinement for an offense can be determined, particularly in the event of future adjudications (Manzy W., supra, at p. 1205), and (2) to ensur[e] that the juvenile court is aware of, and actually exercises, its discretion under section 702 (id. at p. 1207).

“The language of [section 702] is unambiguous.   It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult.”  (Manzy W., supra, 14 Cal.4th at p. 1204, emphasis added;  accord, In re Kenneth H. (1983) 33 Cal.3d 616, 619 [“section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor”].)  “[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony.”  (Manzy W., at p. 1208.)

As the parties agree, a violation of section 12021(a)(1) is a wobbler, and therefore under section 702 the court was required to declare whether the offense was a misdemeanor or a felony.   Appellant argues that the court failed to make the required declaration, and that “there is no indication in the court's statements [at the disposition hearing] that the juvenile court understood that the offense was punishable as a felony or as a misdemeanor.”   The People effectively concede the point.   The People state, “While the minute order [sic] does acknowledge that appellant's offense was a ‘wobbler,’ the minute order is not signed by the court.”   As we explain below this statement is incorrect, and we decline to accept the People's concession.

The document to which the People refer as the “minute order” is the juvenile court's disposition order.   This order is a five-page document, which combines two pre-printed forms promulgated by the Judicial Council of California:  form JV–640, consisting of one page, and form JV–665, consisting of four pages.   The entire order consists largely of a series of statements, some of which contain a blank to be filled in as appropriate, and most of which are preceded by a box in which it can be indicated by a check mark or some other notation that the statement is part of the order.   There is an “x” in the box preceding the statement, “The following counts may be considered a misdemeanor or felony.   The court finds the child's violation․”  There follows the notation, “PC 12101(a)(1).”   This notation is followed by two boxes, one labeled “Misdemeanor” and one labeled “Felony.”   There is an “x” in the box labeled “Felony.”

On the last page of the order is a signature line for “JUDICIAL OFFICER.”   There is a signature on the line and although it is difficult to decipher, it is plain, by comparing it with what is clearly the signature of the juvenile court judicial officer on other orders in the record, that it too is the signature of that judicial officer.

The juvenile court's signed disposition order constitutes an explicit declaration that appellant's violation of section 12101(a)(1) was a felony and demonstrates that the court was aware that offense can be a misdemeanor or a felony.   Thus, the juvenile court complied with section 702.


The judgment is affirmed.



FN1. Appellant was initially adjudged a ward of the court in May 2010, following his adjudication of possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a))..  FN1. Appellant was initially adjudged a ward of the court in May 2010, following his adjudication of possession of a controlled substance (Health & Saf.Code, § 11350, subd. (a)).

FN2. Except as otherwise indicated, the remainder of our factual statement is taken from Officer Smith's testimony..  FN2. Except as otherwise indicated, the remainder of our factual statement is taken from Officer Smith's testimony.

FN3. As indicated above, the only other occupant of the car was a three-year-old child..  FN3. As indicated above, the only other occupant of the car was a three-year-old child.

THE COURT * FN*.  Before Dawson, Acting P.J., Kane, J., and Detjen, J.

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