Filed 8/6/14 In re D.M. CA5



                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT

In re D.M., a Person Coming Under the Juvenile
Court Law.

THE PEOPLE,                                                                                F068151

         Plaintiff and Respondent,                                         (Super. Ct. No. 13CEJ600508-1)

                   v.
                                                                                         OPINION
D.M.,

         Defendant and Appellant.



                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Fresno County. Gary R.
Orozco, Judge.
         Arthur Lee Bowie, 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, Julie A. Hokans and Jeffrey A.
White, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-


*        Before Levy, Acting P.J., Detjen, J. and Peña, J.
       After a contested jurisdiction hearing, the juvenile court found true the allegations
that D.M., a juvenile, possessed a concealable firearm (Pen. Code, § 29610; count 1) and
possessed live ammunition (Pen. Code, § 29650; count 3). The court found not true the
allegation that he discharged a firearm with gross negligence (Pen. Code, § 246.3,
subd. (a); count 2). The court declared D.M. a ward of the court pursuant to Welfare and
Institutions Code section 602. The court reduced count 1 to a misdemeanor and set
D.M.’s maximum period of confinement as one year four months. On appeal, D.M.
contends insufficient evidence supported the juvenile court’s findings on counts 1 and 3.
We disagree and affirm.
                                            FACTS
       On June 9, 2013, at about 12:46 a.m., Officer Webb was patrolling in a marked
patrol vehicle. As he drove northbound on Blackstone Avenue by a Pep Boys store, he
noticed a group of three males walking through the parking lot. The group consisted of
D.M., Marcus, and Demar. Officer Webb was about 15 or 20 yards from the males, who
were standing together. D.M. and Marcus were next to each other and Demar was behind
them. Officer Webb saw no one else in the area. The parking lot was illuminated with
tall street lights in the lot, as well as city street lights and lighting along the building.
When Officer Webb glanced a second time, he saw that D.M.’s hand was raised and
holding a revolver. Officer Webb heard a shot fired. He observed that D.M. had a high-
top afro hairstyle and was wearing a grey T-shirt. Marcus had a short afro and darker
skin, was about the same height, and wore a red shirt and dark pants. Officer Webb did
not see what happened to the firearm.
       Once the males realized an officer was watching them, they all ran eastbound
across Blackstone Avenue. D.M. and Demar continued running eastbound through the
mall’s parking lot. Marcus turned south and ran through the parking lot. Officer Webb
decided to follow D.M. because he had seen him holding the gun. Officer Webb had no




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doubt in his mind it was D.M. who had the gun.1 He followed D.M. in the patrol vehicle
while broadcasting his location, direction of travel, and description of the suspects. As
D.M. and Demar ran across curbs and medians, Officer Webb tried to maintain visual
contact as he drove over and around obstacles. He had his headlights on D.M. and had a
clear view of him and his facial features. Officer Webb yelled at D.M. to stop. When
D.M. and Demar ran into an alley and turned into a breezeway between apartment
buildings, Officer Webb was forced to get out of his vehicle. He chased them as they ran
inside an apartment building, then he stood outside, pacing back and forth from front to
back, trying to ensure that no one left the building as he waited for additional officers.
When backup arrived, officers set up a perimeter and called everyone out of the building.
About seven people came out, including D.M. and Demar. They were now wearing
different clothes, but Officer Webb recognized them and still had no doubt D.M. was the
one who had fired the gun.
       A woman outside the apartments identified herself as a stepmother. Officer Webb
told her they had surrounded the building and asked everyone to come out because he had
observed D.M. and Demar in the parking lot and D.M. was holding a firearm. A woman
who identified herself as D.M.’s grandmother stood next to D.M. while Officer Webb
interviewed him.
       Officer Webb arrested D.M. and read him his Miranda2 rights. D.M. agreed to
speak. He said Marcus was the one who had the firearm and shot it in the parking lot.




1     Officer Webb explained that D.M. and Marcus were standing close together and it
was within the realm of possibility that Marcus was the one with the gun because humans
can make mistakes, but Officer Webb was confident D.M. was the one with the gun and
he chose to pursue and arrest D.M. for that reason.
2      Miranda v. Arizona (1966) 384 U.S. 436.


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D.M. admitted previously possessing the gun, about four days earlier, but he denied ever
shooting it. He said he held the gun, but never fired it.3
       Later, the firearm was found in the Pep Boys parking lot. It was a .38 Special
revolver, loaded with multiple rounds, one of which was expended. Officer Webb
recognized it as the same firearm that he observed and heard fired in the parking lot.
       The surveillance video of the parking lot did not record the incident. It skipped
certain periods of time and the manager had no explanation for the missing time.
Defense Evidence
       Several of D.M.’s relatives were present outside the apartments that night. Some
lived in the building and others were visiting. They testified as follows.
       D.M.’s cousin, Heaven, heard Officer Webb asking D.M. about the other boy he
saw shooting the gun, and then Officer Webb said he saw D.M. shooting the gun. D.M.
told Officer Webb that he did not know the boy and had just met him. The officer said he
saw D.M. with the gun. Heaven interrupted and said, “‘Didn’t you just say you seen the
other guy with the gun?’” Officer Webb waved his hand at her as if she should step back.
       D.M.’s cousin, Kashyra, heard Officer Webb say it was an older boy, not D.M.,
who shot the gun. She thought Officer Webb asked D.M. who the older boy was. She
did not hear everything because she was about 15 feet away.
       D.M.’s grandmother, Joyce, testified that D.M. had been living with her for about
six months. That night, she approached when Officer Webb was speaking to D.M.
Officer Webb told her she needed to step back, but she stayed to listen. D.M. was
handcuffed. The officer asked D.M. who the tall, older boy was. D.M. said his name
was Marcus. He said he did not know him well. Officer Webb said, “‘I know you [and
Demar] did not shoot the gun, but it was the older boy.’” Officer Webb asked, “‘Did you
ever hold a gun?’” D.M. answered, “‘Yeah, I held a gun.’” He said, “‘About 4 days

3     We disagree with defendant’s claim that “there is absolutely no evidence that the
gun D.M. admitted to possessing is the same firearm alleged in the petition.”


                                              4
ago.’” Officer Webb told him, “‘Oh, the reason why I’m asking you this [is] in case we
check the gun and … it was in a crime, we know that you held it.’” Officer Webb said he
saw who shot the gun and it was the older boy, not either of the two younger boys. Joyce
was surprised the officers arrested D.M. because she thought they would let him go.
       On cross-examination, Joyce testified that D.M. admitted to Officer Webb he had
been with Marcus that night. D.M. told Officer Webb they were trying to scare off a man
who had robbed a lady. He said the older boy was trying to scare the man off. But
according to Joyce’s prior statement to the defense investigator, D.M. said they were
trying to scare the man off. Joyce heard D.M. admit to being in possession of a gun four
days earlier.
       D.M.’s father, Dana, was about 18 feet away when he overheard D.M. and
Officer Webb speaking. Officer Webb said, “‘Your buddy lied already. I saw you out
running. I had a full description of you both. You ran across the parking lot. Um, I’m
not saying that you was the shooter or anything, but who was the guy that had the gun?
Who was the other tall guy you guys was with?’” Officer Webb said he saw everything
and watched all three of them. He said, “‘You’re not the guy who did the shooting. He
was older than the both of you. What was his name?’” D.M. said, “Marcus.”
       On cross-examination, Dana testified that he did not remember telling the defense
investigator that the officer asked D.M. if he had touched the gun and D.M. told him he
had not shot the gun but he had held it four days earlier. Dana did hear people talk about
it, but he did not actually hear D.M. say that.
Juvenile Court’s Findings
       After considering the evidence and argument by both counsel, the juvenile court
found counts 1 and 3 true, and count 2 not true. The court did not discuss the basis for its
findings at this time.
       At the disposition hearing, defense counsel urged the juvenile court to consider
reducing count 1 to a misdemeanor. Counsel added:


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       “This is his first time ever being in trouble with the law. I know
there was some evidence of D.M.’s own admission of holding the gun four
days prior to his arrest, which, you know, was described as—as momentary
possession. And the Court did find it untrue as to the negligent discharge
[count], so we are asking the Court to consider a reduction to a
misdemeanor.”
The People objected to the reduction, arguing as follows:

        “We feel that the Court basically gave D.M. a break in the sense that
[it] found Count 2 not true. He admitted to—I mean, at the very least,
holding a gun, being in possession of a gun a couple of days prior to this
incident. This was an incident where he was with two other individuals and
that there was displaying of this weapon, because supposedly, if you
believe his story, that … there was some problem going on between two
other individuals in that parking lot. This minor ran from the police—he
didn’t just stop when he saw the officer, he ran into an apartment, changed
clothes—I mean, there’s just a lot of evidence that he was not necessarily
cooperative with the officer when he was pursuing the minor and his friend
after this incident happened.”
The juvenile court responded:

         “In reading and considering the disposition report and
acknowledging, you know, the evidence that I heard and—I wouldn’t
characterize the Court’s verdict as a break, just that’s the Court’s verdict
that it rendered back on the date of the trial, or else a true finding might be
interpreted as the opposite of a break. And I mean, if the court took it out
on somebody—and I never do that, I base my decisions on the evidence
before the court and the burden of proof that the court must consider. I just
want the record to reflect that, and I know you didn’t mean it that way,
[Ms. Prosecutor], and I understand that.

        “But looking at the minor’s prior history, or a lack thereof, this was a
very serious incident and, you know, he states to the officer the reasons
why the firearm was fired and by his friend Marcus, who suddenly pulled it
out as if he was surprised. I have my concerns whether or not he truly was
surprised, given his own admission he held that same gun four days earlier,
so it shouldn’t have been a surprise, and the inference—the reasonable
inference the Court can draw from such evidence is that, you know,
Marcus, or somebody else showed him the gun, so he shouldn’t have been
surprised when the gun was drawn. And the theory upon which perhaps
liability or culpability is found is based on the fact that he was with the
person at the time and more than … merely standing by, but somehow
assisting in the act that was committed that night. But in the Court’s, you
know, universe of dispositions involving minors, the nature of this offense,
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       what he’s done in the way of school, having been raised by his
       grandmother, who, for the most part—you know, he’s out late at night on
       this particular incident, the Court does not—does not appreciate, and has
       concern for that, that better care needs to be exercised with regard to—once
       he’s 18 and once he’s out—and I know how tough it is when they get to
       that age, and you have to listen to an adult, D.M. No matter what, they’re
       still responsible for you, so you must listen to them. But continuing: He’s
       in JE Young [Academic Center], mainstream, 11th grader, he’s 17, and this
       is his first time before the court. The Court is going to exercise its
       discretion with regard to Count 1, the violation of Penal Code
       Section 29610, and reduce that to a misdemeanor, having, again, looked at
       the nature of the offense, the gravity, the lack of any history as to the minor,
       and how he’s performed while living at home with his grandmother.”
                                       DISCUSSION
I.     Standard of Review
       A juvenile appeal is subject to the same standards that govern adult criminal
appeals. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1328; In re Roderick P.
(1972) 7 Cal.3d 801, 809.) “[T]he reviewing court must examine the whole record in the
light most favorable to the judgment to determine whether it discloses substantial
evidence—evidence that is reasonable, credible and of solid value—such 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. [Citations.]” (People v.
Kraft (2000) 23 Cal.4th 978, 1053.)
       “The standard of appellate review is the same in cases in which the People rely
primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to
acquit a defendant if it finds that circumstantial evidence is susceptible to two
interpretations, one of which suggests guilt and the other innocence [citations], it is the
[trier of fact], not the appellate court which must be convinced of the defendant’s guilt
beyond a reasonable doubt. ‘“If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also be
reasonably reconciled with a contrary finding does not warrant a reversal of the


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judgment.”’ [Citations.] ‘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, 932-933.)
II.    Possession of the Firearm and Ammunition
       Penal Code section 29610 provides: “A minor shall not possess a pistol, revolver,
or other firearm capable of being concealed upon the person.” “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.” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831.) Thus, to establish
constructive possession, the prosecution must prove the defendant knowingly exercised a
right to control the firearm, either directly or through another person. (People v. Pena
(1999) 74 Cal.App.4th 1078, 1083-1084; People v. Mejia (1999) 72 Cal.App.4th 1269,
1272.) Possession may be shared with others. (People v. Neese (1969) 272 Cal.App.2d
235, 245.) But mere proximity to the weapon, standing alone, is not sufficient evidence
of possession. (People v. Land (1994) 30 Cal.App.4th 220, 223-224.) Possession can be
shown by circumstantial evidence and may be inferred from the defendant’s conduct.
(People v. Rushing (1989) 209 Cal.App.3d 618, 622-623.)
       In this case, the evidence was sufficient to support a finding that D.M. actually
possessed the gun that night, raised it in his hand, and fired it. Officer Webb’s testimony
provided ample evidence. But the juvenile court’s explanation establishes that it did not
find this scenario true. The court explained that it based its findings on evidence that
D.M. was “with the person at the time and more than … merely standing by, but
somehow assisting in the act that was committed that night.” And the court concluded
that D.M.’s admitted possession of “the same gun” four days earlier supported the
reasonable inference that he knew it was present that night and was not surprised when


                                             8
his companion pulled it out. This explanation and the court’s not true finding on the
negligent discharge count demonstrate that the court concluded D.M. did not fire the gun
that night. But, contrary to D.M.’s assertion, this does not mean that D.M. could not have
possessed the firearm that night.
       As we have explained, possession can be constructive. Here, the circumstantial
evidence supported findings that D.M. was familiar with the gun his companion was
carrying that night. D.M. admitted he had possessed it four days earlier. It was
reasonable to infer, as the court did, that D.M. knew a companion was carrying the gun
that night and that D.M. was not merely in proximity to it, but had a right to control it and
shared possession of it. Thus, substantial evidence supported the juvenile court’s finding
that D.M. possessed the firearm.
       For the same reasons, substantial evidence supported the juvenile court’s finding
that D.M. possessed the ammunition inside the firearm. And the court reasonably
inferred the ammunition was live because one of the rounds was fired that night (see In re
Khamphouy S. (1993) 12 Cal.App.4th 1130, 1134-1135 [prosecutor must prove
ammunition was live, i.e., capable of being fired or detonated from a firearm]).
                                      DISPOSITION
       The juvenile court’s orders are affirmed.




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