In re D.N.

Filed 8/9/07 In re D.N. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Ronald M. Christianson, Judge, and Robert Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Lynne McGinnis and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

INTRODUCTION

The court found true count 1 of the juvenile wardship petition that minor possessed a knife on school grounds. (Pen. Code, 626.10, subd. (a).)^[1] Minor was declared a ward of the court and placed on probation. On appeal, minor contends (1) there was insufficient evidence to support the juvenile courts true finding; and (2) there is a discrepancy between the clerks transcript and the reporters transcript as to condition No. 10 of minors probation and, regardless of which version is accepted, the condition does not meet the standard put forth in People v. Lent (1975) 15 Cal.3d 481, 486 (Lent), superseded on another ground by Proposition 8 as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-292.

FACTS

Immediately after leaving the grounds of Pacific High School, minor was stopped for a traffic violation. While police officers stood on both sides of minors vehicle, minor opened the cars glove compartment, which revealed a butterfly knife. The two police officers who discovered the knife testified at minors jurisdictional hearing to the knife being clearly visible in the glove compartment. A butterfly knife has a fixed blade with two metal handles that fold up around the blade. The officers were able to immediately identify the weapon, because it had holes drilled along the handles, which is a distinctive feature of butterfly knives. The police officers were aware of this distinctive feature due to their experience with knives. The blade of the knife was approximately three and one-half inches long.

During the jurisdictional hearing, minor testified that the first time he saw the knife was when he was in the back of the police car. Minors car is registered to his mother. Minors brother drives the car occasionally and minor often drives his friends in the car. Minor questioned his brother and his friends as to whether any of them owned the knife, but they all denied ownership.

The juvenile court found minor violated section 626.10 and reduced it to a misdemeanor. The juvenile court found not true the allegation in count 2, which charged minor with carrying a switchblade knife. ( 653k.) In setting forth its findings, the court stated a reasonable interpretation of the evidence proves minor had knowledge the knife was in his car. However, the evidence did not prove that minor had ever wielded the knife and, therefore, would not know of its nature as a switchblade.

Minor was placed on probation with various terms and conditions. At his dispositional hearing, minors counsel objected to any drug and alcohol terms being included in minors probation conditions, because minor had no history of alcohol or drug abuse. The court struck the drug testing condition, but retained condition No. 10 prohibiting minor from being in contact with people and places associated with the sale and consumption of controlled substances, which appears in the clerks transcript. However, when the juvenile court made the oral pronouncement of condition No. 10, it also included people and places associated with the sale and consumption of alcohol among the people and locations that minor must avoid, thereby creating a conflict between the clerks transcript and the reporters transcript as to the probation condition.

DISCUSSION

On appeal, minor makes two contentions. First, minor asserts there was insufficient evidence to support the courts finding that he possessed a knife on school grounds. Specifically, minor contends there was a lack of substantial evidence to prove (1) he had knowledge the knife was in his possession; and (2) he knew the length of the knife blade exceeded two and one-half inches. Minors second contention is that the discrepancy between the reporters transcript and the clerks transcript concerning probation condition No. 10 should be resolved in favor of the clerks transcript. However, regardless of which version of the probation condition prevails, minor contends condition No. 10 is invalid under the standard put forth in Lent, supra, 15 Cal.3d at page 486.

I. Sufficiency of the Evidence

A. Knowledge the Knife was in His Possession

Minors first contention on appeal is that there was insufficient evidence to prove he knew the knife was in his possession.

The People assert section 626.10 does not contain a mens rea requirement, which would require a prosecutor to prove knowledge. However, for the purposes of argument, the People contend that substantial evidence supports the juvenile courts finding that minor had knowledge the knife was in his possession.

Despite the lack of an express mens rea requirement in section 626.10, we find the People bore the burden of proving minor had knowledge the knife was in his possession, due to the principles underlying the concept of constructive possession. (See People v. Mejia (1999) 72 Cal.App.4th 1269, 1272-1273 [the Legislature was presumed to have intended 626.9 to prohibit both actual and constructive possession of a firearm within a school zone, where no contrary intent was present].) Constructive possession does not require actual possession, but does require that a person knowingly maintain control or the right to control the object at issue. (Armstrong v. Superior Court (1990) 217 Cal.App.3d 535, 538.)

The knife was discovered in the glove compartment of minors vehicle. The knife was not within minors direct physical control and, therefore, he did not have actual possession of the knife. Since minor was necessarily charged with having constructive possession of the weapon, the People were required to prove minor had knowledge the knife was in his control.

In reviewing a claim that insufficient evidence supports a juvenile courts true finding, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence--that is, evidence which is reasonable, credible, and of solid value-- from which a trier of fact could have found minor guilty of the crime beyond a reasonable doubt. (People v. Welch (1999) 20 Cal.4th 701, 758.) We presume in support of the judgment the existence of every fact the [juvenile court] could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) If two conflicting inferences may be drawn from the evidence, we must resolve the conflict in favor of the juvenile courts ruling. (People v. Harvey (1984) 151 Cal.App.3d 660, 667.)

In looking at the evidence in the light most favorable to the prosecution, we find several facts that provide substantial support for the juvenile courts true finding. First, minor was a regular driver of the car and was the sole occupant of the car when the knife was discovered. Second, although minors brother and friends also rode in the car, minor testified that upon questioning them, they all denied owning the knife. Third, the knife was in plain view, in the open glove compartment, suggesting that a regular driver of the car would be aware of its presence. Accordingly, we find substantial evidence supports the finding that minor was aware the knife was in his possession.

Minors claim that he was not aware of the knife because it was obscured by papers in the glove compartment is unconvincing. A rational trier of fact could find that the knife was not obscured, because when the glove compartment was opened at the time of arrest, the handles of the knife were immediately visible.

Next, minor claims that there may be substantial proof that he saw the handles of the knife; however, there is insufficient evidence that he saw the blade of the knife and, therefore, he did not know the object was a weapon. Minor stresses the fact that the police officers were able to identify the butterfly knife because of their experience with weapons. Minor asserts that because he is not experienced with knives, he was unaware that the object in his glove compartment had a blade attached to it. Contrary to minors position, a rational trier of fact could infer that if minor saw the handles of the knife, with holes drilled along them, then minor also saw the blade of the knife and, therefore, was aware that the object was a weapon.

Next, minor asserts that because the juvenile court found there was insufficient evidence to support a finding that he wielded the knife, as to count 2, then there is also a lack of substantial evidence to prove he was aware of the presence of a blade. The findings of the juvenile court as to counts 1 and 2 are easily reconciled: The courts finding that minor did not wield the knife is not the equivalent of minor never having seen the knife or opened the knife. Minor need not have wielded the knife to be aware of the blade.

Next, minor cites People v. Sotelo (1971) 18 Cal.App.3d 9, 20, to support an assertion that access to a location does not establish possession. While the Sotelo court did come to that conclusion, it also found that a conviction will be sustained if a defendant has the immediate right to exercise dominion and control over the contraband, even if his possession is constructive. (Ibid.) Furthermore, the court found that a defendants possession of contraband does not need to be exclusive in order to establish possession. (Ibid.) Since minor was a regular driver of the car and the sole occupant at the time the knife was discovered by police, a rational trier of fact could reasonably find that minor had dominion and control over the glove compartment and its contentsincluding the knife.

Accordingly, we find substantial evidence supports the juvenile courts finding that minor had knowledge the knife was in his possession.

B. Knowledge of the Blade Length

Minors second contention on appeal is that there is a lack of substantial evidence to prove that he knew the length of the knife blade exceeded two and one-half inches. Under section 626.10, any person who brings or possesses any . . . knife having a blade longer than 2 inches . . . upon the grounds of, or within, any public or private school . . . is guilty of a public offense. The People assert that, at most, the prosecution bore the burden of proving minor knew, or reasonably should have known, of the knifes illegal characteristics, i.e. that it had a large blade, but the prosecution was not required to prove that minor was aware of the exact dimensions of the knife. Furthermore, the People assert there is substantial evidence to support the juvenile courts finding that minor was aware the knife had a large blade.

When we are faced with a challenge to the sufficiency of the evidence to support a juvenile court judgment, we apply the same standard of review as mentioned in the first section. We consider whether there is substantial evidence from which a rational trier of fact could have found minor guilty of the crime beyond a reasonable doubt. (People v. Welch, supra, 20 Cal.4th at p. 758.)

We will address this issue by assuming, without deciding, that the prosecution bore the burden of proving that minor was aware of the length of the knife blade. In a similar case, the court found the prosecution must present evidence that the defendant knew of the characteristic, which caused the weapon to be illegal, but not that he knew the exact dimensions of the weapon.(People v. King (2006) 38 Cal.4th 617, 627 [examining the knowledge requirement for the length of a short barreled rifle for purposes of 12020, subd. (a)(1)].) A prosecutor could prove such knowledge by presenting evidence that the defendant actually observed the weapon. (King, supra, at pp. 627-628.) The court reasoned that a person who observed the weapon necessarily knows of its [length], and thus knows its illegal characteristic, whether or not the person knows how many inches long the weapon is. (Ibid.) We will assume the prosecutor in the instant case bore the same burden of proof.

In support of this second contention, minor relies on the same two theories described in the first section: (1) there is insufficient evidence to prove minor saw the knife; and (2) if there is substantial evidence to prove minor saw the object in the glove compartment then he only observed the handles and, therefore, there is insufficient evidence to prove he saw the blade. Under either theory, minor would not have observed the blade of the knife and, therefore, would be unaware that the blade exceeded two and one-half inches. However, as we explained above, these theories are unpersuasive.

There is substantial evidence in the record to support a rational trier of facts inference that minor had observed the blade of the knife. First, minor was a regular driver of the car and was the sole occupant at the time the knife was discovered. Second, the knife was in plain view when the glove compartment was opened, and the knife handles had holes along them, suggesting a regular driver of the car would have observed the knife and the blade folded within the handles. Third, minors brother and friends denied owning the knife, making it a reasonable inference that the knife belonged to minor. Therefore, a rational trier of fact could deduce that minor had observed the blade of the knife, which supports the courts finding that minor was aware the knife had a long blade.

Accordingly, we conclude there is substantial evidence to support the juvenile courts finding that minor was aware of the knifes illegal characteristic, i.e., the length of the blade.

II. Probation Condition

The clerks transcript and the reporters transcript conflict in regard to condition No. 10 of minors probation.

In the clerks transcript, the juvenile court judge handwrote modifications to the probation officers recommendation report, so that it read: Not associate with anyone known by the minor to be users or sellers of controlled substances nor be in any place where they are known by the minor to be used or sold. The italics note the handwritten modifications by the juvenile court. The clerks minute order reflects the same wording as the modified probation report.

According to the reporters transcript, at the dispositional hearing, the juvenile court recited probation condition No. 10 as: Not associate with anyone known by the minor to be a user or seller of controlled substances or alcohol or be any place where they are known by the minor to be used or sold. The reporters transcript adds people and places associated with the sale and consumption of alcohol to the probation condition.

Minor contends the discrepancy should be resolved in favor of the clerks transcript. Further, minor contends that both versions of the condition violate the standard put forth in Lent; and the version in the reporters transcript is unconstitutionally overbroad. The People assert that the probation condition in the reporters transcript should prevail. In addition, neither version of the condition violates the standard as put forth in Lent; and minor waived his right to object to the condition in the reporters transcript as unconstitutionally overbroad by failing to do so in the juvenile court. However, the People concede that if the objection was not waived, then the condition as set forth in the reporters transcript is overbroad.

As a general rule, when the record of the courts oral pronouncement regarding sentencing conflicts with the clerks minute order, the oral pronouncement controls. (People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2; People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Mitchell (2001) 26 Cal.4th 181, 185.) However, that rule is not absolute. People v. Smith (1983) 33 Cal.3d 596 outlined what it termed the correct approach when such a conflict occurs: It may be said . . . as a general rule that when, as in this case, the record is in conflict it will be harmonized if possible; but where this is not possible that part of the record will prevail, which, because of its origin and nature or otherwise, is entitled to greater credence [citation]. Therefore whether the recitals in the clerks minutes should prevail as against contrary statements in the reporters transcript, must depend upon the circumstances of each particular case. (Id. at p. 599, quoting In re Evans (1945) 70 Cal.App.2d 213, 216; see also People v. Malabag (1997) 51 Cal.App.4th 1419, 1422-1423.)

In the instant case, the clerks minute order and the juvenile court judges handwritten modifications to the probation officers recommendation report coincide with one another. Also, when the prosecution advocated for the court to retain probation condition No. 10, it only argued for minor to avoid users and sellers of controlled substances; the prosecution did not mention minor avoiding users and sellers of alcohol. In regard to the condition as it appears in the reporters transcript, there is nothing in the record that corroborates the language of that version. Since the weight of the record is so much in favor of the version appearing in the clerks transcript, we resolve the discrepancy in favor of the clerks transcript.

Next, we address whether the probation condition appearing in the clerks transcript violates the standard put forth in Lent, supra, 15 Cal.3d at page 486. Minor contends that the condition should be stricken because (1) there is no nexus between drug use and the crime of possessing a knife; (2) the condition does not relate to criminal conduct; and (3) the condition is not concerned with future criminality. In addition, minor notes that he has no personal or social history of abusing drugs.

The Lent standard provides that a probation condition will be valid unless it (1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality . . . . [Citation.] (Lent, supra, 15 Cal.3d at p. 486.) The test is conjunctive. All three factors must be present to invalidate a condition of probation. (Id. at p. 486, fn. 1.) When setting forth the conditions of a minors probation, a juvenile court must consider not only the circumstances of the crime but also the minors entire social history. (In re Todd L. (1980) 113 Cal.App.3d 14, 20.) The rehabilitative and deterrent effect of the conditions should [also] be considered. [Citations.] (People v. Correll (1991) 229 Cal.App.3d 656, 660.)

As with any exercise of discretion, the sentencing court violates [the Lent] standard when it imposes a condition of probation that is arbitrary or capricious or exceeds the bounds of reason, all of the circumstances being considered. [Citations.] (People v. Carbajal (1995) 10 Cal.4th 1114, 1121.)

Probation condition No. 10 concerns minors connection to people and places that are associated with the sale and consumption of controlled substances. While such association is not criminal, it does relate to the future criminality of minor. If minor is associating with people and places connected to controlled substances, the juvenile courts rehabilitative goals for minor are likely to be thwarted. Associating with people involved in criminal acts, such as the sale and consumption of controlled substances, would in no way assist minor with avoiding future criminal conduct. Therefore, we find this condition is permissible because it relates to the future criminality of minor and the rehabilitative goals of probation enunciated in Welfare and Institutions Code section 730, subdivision (b), The court may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced.

Accordingly, we find that probation condition No. 10 is related to future criminality and, therefore, does not violate the standard put forth in Lent, supra, 15 Cal.3d at page 486.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

We concur:

HOLLENHORST

J.

GAUT

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated. All further references to section 626.10 are to section 626.10, subdivision (a).