P. v. Navarette

Filed 4/10/07 P. v. Navarette 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Patrick J. O'Hara, Judge.

Allan E. Junker, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Raymond L. Brosterhous II and Judy Kaida, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellantJoseph Navarette of possession of a firearm (count 1) and ammunition (count 2) by a felon (Pen. Code 12021, subd. (a)(1), 12316, subd. (b)(1).) The trial court found true allegations that he had a prior strike conviction

( 1170.12, subd. (c)(1)), and had served a prior prison term ( 667.5, subd. (b)). The court imposed a prison sentence of four years for count 1 (the two year midterm doubled under the Three Strikes law) plus one year for the prior prison term enhancement for a total of five years. The court imposed a concurrent four year term for count 2. On appeal, Navarette contends substantial evidence does not support his conviction for possession of the firearm or ammunition. We disagree and will affirm the judgment.

Facts and Procedural History

On March 1, 2006, Navarette was at his cousin Albert Hernandezs house in Visalia. He spoke by telephone with Julia Curenio, the mother of his five children. He told her he was going to commit suicide by overdosing on heroin. He did not want to be locked up anymore. Julia contacted their daughter, Michelle, who spoke briefly with Navarette and then called the parole department. Michelle was scared for [her] dads life because Navarette had told her he wanted to commit suicide. Michelle told Agent Vella that Navarette was trying to overdose and that there was a rifle or a shotgun in the house where he was living. Michelle knew there was a gun in the house because Hernandez had told her Navarette had a rifle.

Visalia Parole Agent David Johns went to the Visalia residence to conduct a parole search. Navarette was sitting in the front yard in a lawn chair; the front door of the house was wide open. An unidentified man was in the back bedroom leaning out a window while smoking. He told Agent Johns that he rented the room. Two women were in a shed in the back yard. Johns found a loaded rifle propped against a wall in a front bedroom. He found rounds of ammunition for the rifle in that bedroom, in a second bedroom and in a cabinet in the living room. The door to the bedroom where the rifle was found had been removed. Officers found mail addressed to Navarette at that address in every bedroom, the living room and the kitchen.

Navarette said the rifle did not belong to him but he refused to identify the owner. He knew the rifle was in the bedroom, he knew it was loaded, and he knew where the ammunition was in the house. He would not reveal who used the bedroom where the rifle was found. He said he stayed in a bedroom at the back of the house that had been converted from a patio. He had lived at the residence and received mail there for about five months. The rifle was found about 20 feet away from his patio bedroom. He acknowledged he had access to the weapon.

Defense

Albert Hernandez, Navarettes cousin, owned the house where Navarette was staying. Hernandez had been convicted of felony spousal abuse in 1994. Hernandez testified that a friend had forgotten the rifle at his house several weeks earlier. Hernandez kept the rifle in a closet in his bedroom. His son, who had occupied the room where the gun was found but had since moved to Gilroy, had taken the gun from the closet the day before to show his friends. Navarette had been spending about three days a week at the house for the previous three or four weeks. He was staying in the patio bedroom. He had just a bag of clothing with him and had received only one piece of mail at the house. Hernandez testified he usually kept the house locked. He rented the back patio bedroom to a tenant. Because the patio bedroom was an addition to the original house with a separate entrance, Navarette did not have access to the house when the door between that room and the house was locked. The house was open that day because it was being cleaned. Hernandez said Navarette did not know the rifle was in the house.

Discussion

Substantial Evidence

Navarette contends the evidence is insufficient to support his conviction for possession of the rifle and the ammunition. To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Bolden(2002) 29 Cal.4th 515, 553.) The reviewing court must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) Reversal is not warranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
To establish a violation of section 12021, subdivision (a)(1) and section 12316, subdivision (b)(1), the prosecution must prove the defendant was convicted of a felony and owned, possessed, or had under his custody or control a firearm and ammunition. (People v. Jeffers (1996) 41 Cal.App.4th 917, 922.)

Possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. Exclusive possession is not necessary. A defendant does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.)

Navarette contends there is no evidence he had dominion and control over the rifle or the ammunition. He submits that dominion and control cannot be inferred from his mere presence at the house or access to the contraband. He relies on case law that we find inapposite. In People v. Zyduck(1969) 270 Cal.App.2d 334, Zyduck was the front seat passenger in a vehicle stopped on a highway in a logging area. The court held that the mere presence of a stolen chain saw in the back seat did not support Zyducks conviction of receiving stolen property. [A] non-owner passenger [is not deemed] to be in possession of a heavy object not readily concealable or movable, merely because it is carried in the car of which he is an occupant. (Id. at p. 336.)

Similarly, in People v. Stanford (1959) 176 Cal.App.2d 388 there was no evidence that Stanford had dominion and control of the heroin found in the house he was visiting the morning it was searched. No contraband was found on his person or in the living room where he was arrested. There was no basis to infer he had constructive possession of the drugs found in the bathroom because he did not live at the house and did not have control of the premises. (Id. at p. 391.)

Finally, in In re Elizabeth H. (1971) 20 Cal.App.2d 323, there was insufficient evidence that passenger Elizabeth possessed the marijuana found in boys jacket in the car, in the police car after two of the male occupants were taken to juvenile hall, and in a soap dish thrown by one of the male occupants after he had alighted from the car. (Id.at p. 330.)

We find the possession evidence in Navarettes case to be analogous to People v. Llamas (1997) 51 Cal.App.4th 1729, where the court rejected an insufficient evidence claim. Llamas contended there was no evidence he had dominion and control of the gun found under the hood of his wifes car. At trial, Llamass wife testified the gun was hers; she had placed it under the hood of the car to keep it away from her three sons. Llamas testified he had never seen the gun before. (Id.at pp. 1734-1735.) However, an arresting officer testified that he saw Llamas momentarily opening the hood of the car shortly before he was apprehended. The jury could reasonably believe that Llamas did so either to make sure the gun was still present or to place the gun there before going to his wifes apartment. Further, based on its inconsistencies and incredible nature, the jury could reject defendants wifes claim the gun was hers and she had hidden it in the car. (Id. at p. 1743; accord, People v. Clark (1996) 45 Cal.App.4th 1147, 1156 [despite trial testimony that Clark was unaware of the shotgun in the motor home, substantial evidence was supplied by his admission on the day of the search that he knew the shotgun was in the motor home]; People v. Hunt (1963) 221 Cal.App.2d 224, 225- 226 [constructive possession where handgun found on floor next to passenger within drivers reach]; People v. Nieto (1966) 247 Cal.App.2d 364, 368 [guns found in car while appellant was driving was circumstantial evidence of joint or constructive possession, custody or control of the guns by appellant]; People v. Burnett (1967) 251 Cal.App.2d 651, 657 [although third party testified he placed weapon in vehicle unbeknownst to appellant, jury could infer appellants possession as he had exclusive possession of the vehicle at the time].)

In arguing the evidence was insufficient to demonstrate dominion and control, Navarette is apparently under the impression the jury was required to accept Hernandezs implausible testimony. The jury was not so constrained. Despite Hernandezs testimony to the contrary, the evidence showed Navarette had been living at the house for a number of months. He had access to the whole house as indicated by the presence of his mail found in every room, including the rooms where the rifle and ammunition were found. Navarette knew the rifles location in the house, he knew it was loaded, and he knew where the ammunition was located. Further, Navarette refused to identify the owner of the rifle or the occupant of the bedroom in which it was found. From this evidence, coupled with Michelles testimony that Navarette had a rifle and she feared he would hurt himself, the jury could reasonably infer that Navarette exercised dominion and control over the rifle and ammunition.

Disposition

The judgment is affirmed.

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^* Before Levy, Acting P.J., Cornell, J. and Hill, J.

Further statutory references are to the Penal Code.