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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re D.M., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent,

v.
D.M., Defendant and Appellant. F068151
(Super. Ct. No. 13CEJ600508-1)



### OPINION

THE COURT * APPEAL from a judgment of the Superi or 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, Da ne R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorn ey General, Julie A. Hokans and Jeffrey A. White, Deputy Attorney s General, for Plaintiff and Respondent.
-ooOoo-

* Before Levy, Acting P.J ., Detjen, J. and Peña, J.2 After a contested jurisdiction hearing, the juvenile court found true the allegations that D.M., a juvenile, possessed a concealabl e firearm (Pen. Code, § 29610; count 1) and possessed live ammunition (Pen. Co de, § 29650; count 3). Th e court found not true the allegation that he discharged a firearm w ith 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 j uvenile 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 drov e northbound on Blackstone Ave nue 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 a bout 15 or 20 yards from the males, who were standing together. D.M. and Marcus we re 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 a nd 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 fi red. He observed that D.M. had a hightop afro hairstyle and was wear ing 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 ru nning eastbound through the mall’s parking lot. Marcus turned south an d ran through the parking lot. Officer Webb
decided to follow D.M. because he had seen him holding the gun. Officer Webb had no3 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 tr avel, 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 obstacl es. He had his headli ghts 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 tu rned 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 perime ter 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 fire d the gun. A woman outside the apartm ents 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 grandmothe r stood next to D.M. while Officer Webb
interviewed him.
Officer Webb arrested D.M. and read him his Miranda 2 rights. D.M. agreed to speak. He said Marcus was the one who had th e firearm and shot it in the parking lot.

1 Officer Webb explained that D.M. and Ma rcus were standing close together and it was within the realm of possi bility that Marcus was the one with the gun because humans can make mistakes, but Officer Webb was c onfident 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. 436.4 D.M. admitted previously possessi ng 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 whic h was expended. Officer Webb recognized it as the same firear m 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 vi siting. They testified as follows. D.M.’s cousin, Heaven, heard Officer We bb asking D.M. about the other boy he saw shooting the gun, and then Officer Webb sa id he saw D.M. shooting the gun. D.M.
told Officer Webb that he did not know the boy and had just me t 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 We bb asked D.M. who the older boy was. She did not hear everything because sh e 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 wh en Officer Webb was speaking to D.M.
Officer Webb told her she need ed 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 possessi ng is the same firearm alleged in the petition.”5 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. beca use she thought they would let him go. On cross-examination, Joyce testified th at D.M. admitted to Officer Webb he had been with Marcus that night. D.M. told Officer Webb they we re trying to scare off a man who had robbed a lady. He sa id the older boy was trying to scare the man off. But according to Joyce’s prior stat ement to the defense investig ator, 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 fe et away when he overheard D.M. and Officer Webb speaking. Officer Webb said, “‘Your buddy lied alre ady. 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 shoot er 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 argu ment 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 counse l urged the juvenile court to consider reducing count 1 to a misdemeanor. Counsel added:6 “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, y ou 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 Co urt to consider a reduction to a misdemeanor.” The People objected to the reduction, arguing as follows: “We feel that the Court basically ga ve D.M. a break in the sense that [it] found Count 2 not true. He adm itted 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 s upposedly, if you believe his story, that ... there wa s 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 office r, he ran into an apartment, changed clothes—I mean, there’s just a lot of evidence that he was not necessarily cooperative with the offi cer when he was pursuing the minor and his friend after this incident happened.” The juvenile court responded: “In reading and consideri ng the disposition report and acknowledging, you know , the evidence that I heard and—I wouldn’t characterize the Court’s verdict as a br eak, 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 hi story, 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 hi s friend Marcus, wh o 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 he ld that same gun four days earlier, so it shouldn’t have been a surpri se, 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,7 what he’s done in the way of school, having been raised by his grandmother, who, for the most part—y ou know, he’s out late at night on this particular incident, the Court does not—does not appreciate, and has concern for that, that bette r care needs to be exerci sed with regard to—once he’s 18 and once he’s out—and I know how tough it is wh en 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 lis ten to them. But continuing: He’s in JE Young [Academic Ce nter], mainstream, 11th gr ader, 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, th e 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 sa me 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 c ourt must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, cr edible and of solid value—such that a
reasonable trier of fact coul d find the defendant guilty be yond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably dedu ce from the evidence. [Citations.]” ( People v. Kraft (2000) 23 Cal.4th 978, 1053.) “The standard of appellate review is th e 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 circum stantial evidence is susceptible to two interpretations, one of which suggests guilt and the other inno cence [citations], it is the [trier of fact], not the appellate court whic h must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstan ces reasonably justify the trier of fact’s findings, the opinion of the reviewing cour t that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the8 judgment.”’ [Citations.] ‘Circumstantia l evidence may be suffi cient to connect a
defendant with the crime a nd 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 be ing concealed upon the person.” “Possession may be actual or constructive. Actual possession means th e object is in the defendant’s immediate possession or control. A defendant has ac tual possession when he himself has the weapon. Constructive possession means the obj ect is not in the defendant’s physical possession, but the defendant knowingly exerci ses 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 kn owingly exercised a right to control the firear m, 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 hi s hand, and fired it. Officer Webb’s testimony provided ample evidence. But the juvenile court’s explan ation establishes that it did not find this scenario true. The court explaine d 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 commi tted that night.” And the court concluded that D.M.’s admitted possession of “the sa me gun” four days earlier supported the reasonable inference that he knew it was pres ent that night and was not surprised when9 his companion pulled it out. This explanatio n and the court’s not true finding on the negligent discharge count demonstrate that th e court concluded D.M. did not fire the gun that night. But, contrary to D.M.’s asserti on, 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. wa s familiar with the gun his companion was carrying that night. D.M. admitted he ha d 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 pr oximity to it, but had a right to control it and shared possession of it. Thus, substantial ev idence supported the juvenile court’s finding that D.M. possessed the firearm. For the same reasons, substa ntial evidence supported th e 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 bein g fired or detonated from a firearm]).
DISPOSITION The juvenile court’s orders are affirmed.