In re J.T. CA4/1

Filed 3/29/23 In re J.T. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

In re J.T., a Person Coming Under the D080820
Juvenile Court Law.
THE PEOPLE,

Plaintiff and Respondent, (Super. Ct. No. J243738)

v.

J.T.,

Defendant and Appellant.

APPEAL from order of the Superior Court of San Diego County, Robert
J. Trentacosta, Judge. Affirmed in part, reversed in part, and remanded with
directions.
Elisabeth R. Cannon, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General,
Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General,
for Plaintiff and Respondent.
 At a contested adjudication hearing, the juvenile court found J.T. (a

minor) guilty of possessing a concealable firearm (Pen. Code, § 29610,1 count
one); possessing a firearm in violation of a probation condition (§ 29815, count
two); carrying a loaded and unregistered weapon concealed within a vehicle
he directed or controlled (§ 25400, subds. (a)(1) & (c)(6), count three); carrying
a concealed weapon in a vehicle (§ 25400, subd. (a)(3), count four); possessing
live ammunition (§ 29650, count five); and receiving stolen property worth
over $950 (§ 496, subd. (a), count six). At the disposition hearing, the
juvenile court committed J.T. to Urban Camp for 130 days.
J.T. appeals his conviction on all counts for lack of substantial
evidence. We conclude that substantial evidence supports the convictions on
all counts except count three.
J.T. further contends that the juvenile court failed to (i) specify
whether the wobbler counts were felonies or misdemeanors, as required by
Welfare and Institutions Code section 702; (ii) specify his maximum term of
confinement, as required by Welfare and Institutions Code section 726; and
(iii) credit him for time spent in custody, as required by section 2900.5,
subdivision (b) of the Penal Code. The People properly concede the first two
issues, and we agree that J.T.’s custody credits were erroneously omitted
from the disposition order.
Accordingly, we affirm in part, reverse in part, and remand with
directions.

1 Further statutory references are to the Penal Code unless otherwise
stated.

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 FACTUAL AND PROCEDURAL BACKGROUND

A. The Incident
Around 7:30 a.m. on May 23, 2022, Jason H. left his parents’ house in
Mira Mesa, San Diego to go to work. By then, his father had already left the
house. His mother left for work later around 8:20 a.m. When Jason returned
home around 5:15 p.m., he felt something was amiss. The window screen in
his bedroom was removed. His parents’ master bedroom was “ransacked.”
The family discovered that $14,000 in cash was missing from the home, as
well as designer purses worth about $30,000, a Nintendo Switch, a white
computer tower, earrings, and two iPhone X’s.
At approximately 11:55 a.m. that day, the police made a traffic stop on
a white Hyundai Sonata (a four-door sedan) with rear bumper damage in a
shopping center on Euclid Avenue in San Diego. The car had an expired
registration and was possibly connected with “some other crimes.” The police
identified four occupants in the car—an adult driver, adult front passenger,
and two rear passengers who were minors, including J.T. The car was
registered to the driver. J.T. was sitting in the rear seat behind the
passenger. A detective could see clothing scattered inside of the vehicle and
“a lot of stuff” stacked up in the passenger compartment. Another detective
stated there “wasn’t a lot of room” inside the car. Between J.T. and the other
rear passenger was “large plastic box” of stuff.
Because the rear bumper damage on the Hyundai matched the
description of another car reportedly involved in a series of burglaries under
investigation, the detectives removed all the occupants from the vehicle and
conducted a search. They found a loaded Glock 30 handgun, a Nintendo
Switch, and two cellphones in the pouch of the passenger seat directly in
front of J.T. A round of nine-millimeter ammunition was located in the glove

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box. And a second loaded handgun, a nine-millimeter Taurus, was found
under the driver’s seat. After the guns were found, the detectives arrested
the occupants of the car and conducted an inventory search of the car.
In the large plastic box on the rear passenger seat, the detectives found
designer purses and family photos not depicting any of the car’s occupants.
They also found checkbooks and identification cards not belonging to any of
the car’s occupants and a red bag. A white computer tower and MacBook
were found in the trunk. A patdown of J.T. revealed he had $1,700 in cash on
his person.
Later that evening, Jason and his parents went to the police station
and identified items recovered from the Hyundai as their missing property,
including the white computer tower, Nintendo Switch, purses, and other
belongings. They did not know any of the occupants in the Hyundai and did
not give them permission to have any of their belongings.
B. The Juvenile Proceedings
In May 2022, the San Diego County District Attorney’s Office filed a
wardship petition under Welfare and Institutions Code section 602,
subdivision (a) charging J.T. with counts one to five. The following month,
the district attorney amended the petition to add count six.
At the adjudication hearing in July 2022, the court made the following
findings. J.T. was in the Hyundai which matched another vehicle reportedly
involved in a series of residential burglaries. He was found sitting in the
back seat behind the front passenger. J.T. and the occupant beside him
“were essentially crammed into the back seat with a plastic tub full of stolen
property between them.” J.T. was “essentially sitting with his hip and
perhaps his arms literally in a mother load of stolen items.” “[I]n addition to
the items that were stolen there was cash in a sum of about $14,000” stolen

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from Jason’s home. J.T. “was found to have $1,700 on his person.” The
photographs showed that the pouch contained a handgun, ski goggles that
were bent toward J.T., and the stolen Nintendo Switch. In the court’s view,
one of the photographs showed “the butt of the handgun” “pretty clear[ly]
given the tight fit of the pouch as well as the other items that are stuffed in
there that—and the minor’s proximity to those items and the fact that the
minor would be—if he looks down at all, these things are going to be visible to
him. [¶] It is, again, I think proven beyond a reasonable doubt that these
items must have been known.” The court then concluded there was no
“reasonable explanation [J.T.] did not know of the presence of this handgun,
which was in close proximity to his body.” At the time of the incident, J.T.
was on probation with the condition that he “must not possess a dangerous or
deadly weapon” and “shall not knowingly have any firearm in his/her
possession until attaining the age of 30.” The juvenile court thus made true
findings on all counts, and found that J.T. violated his probation by
possessing the handgun.
At the disposition hearing, the juvenile court ordered J.T. committed to
Urban Camp for 130 days.

DISCUSSION

I.
J.T. argues that the evidence is insufficient to support the juvenile
court’s true findings on all counts. We conclude that substantial evidence
supports the true findings on all charges except count three.
A. Standard of Review
Our review of the minor’s substantial evidence claim is governed by the
same standard applicable to adult criminal cases. (In re V.V. (2011) 51
Cal.4th 1020, 1026.) We must determine whether, viewing the evidence in

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the light most favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt.
(Ibid.) We presume in support of the judgment every fact that the trier of
fact could reasonably have deduced from the evidence. (Ibid.) Substantial
evidence is 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. (People v. Brooks (2017) 3 Cal.5th 1, 57.) Substantial evidence
includes circumstantial evidence and any reasonable inferences drawn from
that evidence. (Ibid.)
Our role on appeal is a limited one. If the circumstances reasonably
justify the trier of fact’s findings, our opinion that the circumstances might
also reasonably be reconciled with a contrary finding does not warrant
reversal of the judgment. (People v. Medina (2009) 46 Cal.4th 913, 924, fn. 2.)
B. Analysis of Counts One, Two, Four, Five, and Six
As to counts one, two, four, five, and six, J.T. contends that the
evidence is insufficient to establish his possession of the firearm,
ammunition, or stolen property. He maintains that the evidence, at most,
merely demonstrates his physical proximity to them. We disagree.
Sections 29610, subdivision (a), and 29650 (counts one and five)
prohibit a minor from possessing a handgun and live ammunition,
respectively. Section 29815, subdivision (a), (count two) criminalizes the
possession of firearm by any person restricted from doing so as a condition of
probation. Section 25400, subdivision (a)(3), (count four) makes it a crime to
carry a concealed firearm in a vehicle. Section 496 (count six) prohibits a
person from knowingly possess stolen property. (§ 496; In re Anthony J.
(2004) 117 Cal.App.4th 718, 728 (Anthony J.).)

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 Possession of a weapon or stolen property may be actual or
constructive. (People v. Peña (1999) 74 Cal.App.4th 1078, 1083 (Peña);
Anthony J., supra, 117 Cal.App.4th at p. 728.) “A defendant has actual
possession when the weapon [or stolen property] is in his immediate
possession or control. He has constructive possession when the weapon [or
stolen property], while not in his actual possession, is nonetheless under his
dominion and control, either directly or through others.” (Peña, at pp. 1083–
1084; see Anthony J., at p. 728.) “Implicit in the crime of possession of a
firearm [and stolen property] is that a person is aware both that the item[s]
[are] in his or her possession and that it is a firearm” and the property is
stolen. (People v. Clark (2021) 62 Cal.App.5th 939, 958; People v. Myles
(1975) 50 Cal.App.3d 423, 428 (Myles).) Possession may be shared with
others and proved circumstantially. (People v. Neese (1969) 272 Cal.App.2d
235, 245.)
Mere proximity to a weapon or stolen property, standing alone, is not
sufficient evidence of possession. (People v. Sifuentes (2011) 195 Cal.App.4th
1410, 1417 (Sifuentes); Anthony J., supra, 117 Cal.App.4th at p. 728.)
However, “the necessary additional circumstances may, in some fact contexts,
be rather slight.” (People v. Land (1994) 30 Cal.App.4th 220, 225, italics
added.) Here, the evidence establishes more than mere proximity.
The burglary at Jason’s home in Mira Mesa occurred sometime within
three and a half hours immediately before the Hyundai was stopped in
another San Diego neighborhood because it matched the description of a
vehicle used in a series of burglaries. J.T. was in the car filled with stolen
items and an unusual amount cash ($1,700) on his person consistent with the
items and cash that were reported stolen at Jason’s home. Based on the
photograph, the butt of the loaded handgun in the pouch was pointing

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outward toward J.T. along with the ski goggles, which were partially sticking
out from the pouch and bent toward J.T. These items (and others) were
visible to and immediately accessible by J.T., who was sitting right behind
the pouch. (See People v. Miranda (2011) 192 Cal.App.4th 398, 410
[“Possession may be imputed when the contraband is found in a place which
is immediately accessible to the joint dominion and control of the accused and
another” (italics added)].) The $1,700 cash on J.T.’s person further supported
a reasonable inference that he possessed or jointly possessed the items and
cash taken in the burglary of Jason’s home, including the stolen Nintendo
Switch stuffed into the seat pocket directly in front of him along with the
firearm.
Viewing the evidence in its totality, the juvenile court could reasonably
infer that J.T. had dominion and control over the loaded handgun and stolen
property. (See, e.g., People v. Williams (1971) 5 Cal.3d 211, 214 [finding
evidence sufficient to establish constructive possession of narcotics because
bags of tablets were found beneath the driver’s seat and a tablet was found
on the floor in front of the seat occupied by the defendant].) Construing the
evidence in light most favorable to the judgment, we cannot say that there
was no reasonable basis to support the juvenile court’s findings as to counts
one, two, four, five, and six. (See People v. Penunuri (2018) 5 Cal.5th 126,
142 [“ ‘A reversal for insufficient evidence “is unwarranted unless it appears
‘that upon no hypothesis whatever is there sufficient substantial evidence to
support’ ” the jury’s verdict.’ ”].)
To support his position, J.T. relies on four cases in which the appellate
courts found the evidence insufficient to establish possession. “When we
decide issues of sufficiency of evidence, comparison with other cases is of
limited utility, since each case necessarily depends on its own facts.” (People

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v. Thomas (1992) 2 Cal.4th 489, 516 (Thomas).) The facts of the cases cited
by J.T. bear little resemblance to this case. (See Sifuentes, supra, 195
Cal.App.4th at pp. 1414, 1418–1419 [finding insufficient evidence that
defendant possessed gun found under mattress near fellow gang member and
rejecting unsupported theory that “all gang members had the right to control
communal gang guns”]; In re I.A. (2020) 48 Cal.App.5th 767, 778–779
[holding that Facebook messages and photos did not establish defendant’s
possession of gun found in car he did not occupy]; Myles, supra, 50 Cal.App.3d
at pp. 428–429 [finding insufficient evidence that passenger of vehicle
possessed stolen televisions found in truck]; People v. Zyduck (1969) 270
Cal.App.2d 334, 335–336 [finding insufficient evidence that front passenger
of vehicle possessed stolen chainsaw located in rear seat].)
J.T. also cites to several cases in which there was sufficient evidence to
establish possession of a gun or stolen property. (See People v. Bay (2019) 40
Cal.App.5th 126, 132 [finding sufficient evidence the defendant possessed the
pistol and ammunition in a backpack not proven to be his]; People v. Harrison
(1969) 1 Cal.App.3d 115, 118–119 [finding sufficient evidence the defendant
possessed firearm, even though another person testified he owned it, because
the defendant “failed to stop immediately after seeing the red light, though
the curbing was free of parked cars,” and expressed “disconsolate disgust”
when the police officer found the gun]; People v. Peters (1982) 128 Cal.App.3d
75, 82–83 [finding sufficient evidence the defendant received a checkbook
belonging to another person because it was located in his car behind the
driver’s sun visor].) These cases finding sufficient evidence do not undermine
our conclusion that the evidence of actual or constructive possession is
likewise sufficient on the record presented here.
C. Analysis of Count Three

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 J.T. next argues that there is insufficient evidence the Hyundai was
under his control or direction to support the count three conviction for
violating section 25400, subdivision (a)(1). We agree.
“Section 25400 [, subdivision] (a)(1) makes it a crime for one to carry
‘concealed within any vehicle that is under the person’s control or direction
any pistol, revolver, or other firearm capable of being concealed upon the
person.’ Conviction under the statute requires proof that the ‘defendant
carried within a vehicle a firearm capable of being concealed on the person,’
the ‘defendant knew the firearm was in the vehicle,’ the ‘firearm was
substantially concealed,’ and the ‘vehicle was under the defendant’s control or
direction.’ ” (People v. Aguilar (2016) 245 Cal.App.4th 1010, 1017.)
As J.T. maintains, the juvenile court did not explain how it concluded
that he controlled or directed the Hyundai. At the time of the traffic stop, the
Hyundai was registered to and operated by the adult driver—not J.T. who
was simply a rear passenger. (See People v. Davis (1958) 157 Cal.App.2d 33,
36 [concluding the car was under the defendant’s control and direction
because he owned it].) There is no evidence that J.T. himself ever drove the
car or exercised any control or direction over the adult driver’s operation of
the car.
The People nonetheless contend that under People v. Gant (1968) 264
Cal.App.2d 420, 424, it was reasonable for the juvenile court to infer J.T. had
joint control or direction of the vehicle with the driver because of “their joint
enterprise of burgling a home.” We are unconvinced. In that case, the two
defendants were seated together as the driver and front passenger in a stolen
car with recently stolen property. (Id. at pp. 424–425.) Based on the totality
of circumstances, the Gant court concluded it was reasonable to infer the two
defendants had joint possession of the stolen car. (Ibid.) By contrast, J.T.

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was a minor sitting in the rear seat of a car that was not stolen and was
registered to and operated by the adult driver. Even assuming that J.T. and
the driver jointly participated in the burglary (which J.T. was not charged
with), we see no evidentiary support for a finding that they had joint control
and direction over the adult driver’s car.
II.
The parties agree, as do we, that the juvenile court failed to expressly
declare during the adjudication hearing whether wobbler counts one, two,
three, and six were misdemeanors or felonies, as required by Welfare and

Institutions Code section 702.2 “The remedy for a juvenile court’s failure to
designate felony or misdemeanor treatment of an offense is a remand for the
purpose of making that determination.” (In re Jacob M. (1987) 195
Cal.App.3d 58, 65.)
We also agree with the parties that the juvenile court failed to specify a
maximum period of confinement as required by Welfare and Institutions

Code section 726.3 Both the disposition order and the transcript of the
disposition hearing are silent on J.T.’s maximum period of confinement.

2 Section 702 of the Welfare and Institutions Code, in relevant part,
provides: “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.” (Italics added.) (Welf. & Inst. Code, § 702.)

3 Under section 726, subdivision (d)(1), when a court orders a removal of
a minor from his or her parents’ or guardians’ custody under Welfare and
Institutions Code section 602, “the order shall specify that the minor may not
be held in physical confinement for a period in excess of the middle term of
imprisonment which could be imposed upon an adult convicted of the offense
or offenses which brought or continued the minor under the jurisdiction of the
juvenile court.” (Welf. & Inst. Code, § 726, subd. (d)(1), italics added.)

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 Finally, J.T. contends the disposition order fails to credit him for his
time in custody. We agree. The juvenile court has a duty to credit J.T. for his

time in custody pursuant to section 2900.5, subdivision (d).4

4 Section 2900.5, subdivision (d), states: “It is the duty of the court
imposing the sentence to determine the date or dates of any admission to,
and release from, custody prior to sentencing and the total number of days to
be credited pursuant to this section. The total number of days to be credited
shall be contained in the abstract of judgment . . . .” (§ 2900.5, subd. (d).)

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 DISPOSITION

The adjudication order is reversed as to count three and otherwise
affirmed. The case is remanded with directions for the juvenile court to
(i) state on the record its determination of the felony or misdemeanor status
of counts one, two, and six; (ii) specify on the record the maximum custody
term; (iii) recalculate the appropriate custody credits; and (iv) amend the
disposition order accordingly. In all other respects, the judgment is affirmed.

BUCHANAN, J.

WE CONCUR:

IRION, Acting P. J.

DATO, J.

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