California Court of Appeal Rules Possession of Burglary Tools Includes Constructive Possession

People v. Bay, 2019 WL 4564854 (Cal.App. 1 Dist.), 1 (Cal.App. 1 Dist., 2019)

The Stop and Search

A Napa County Sheriff’s deputy was on patrol at 2:00 a.m. on September 9, 2017, when he noticed a Cadillac SUV parked illegally near a popular overlook. The deputy approached and saw three people in the vehicle, including Bay, in the driver’s seat. When asked what they were doing, Bay said “they were just sitting there looking at the view and asked … if they were doing something wrong.” The deputy cited a no-parking sign and asked Bay for identification. Bey had none and provided a false name. Knowing that Bay was on post-release community supervision (PRCS) and subject to a warrantless search, the deputy asked him to get out of the vehicle.

After Bay complied, the deputy asked him “[i]f he had any guns, knives, drugs, or any other weapons on him or in the vehicle.” Bay said, “Not that I know of.” The deputy asked Bay again whether there was any contraband in the vehicle. This time, Bay admitted “there was an amount of marijuana in the small pouch of the Jansport backpack inside the vehicle.”

The backpack Bay had mentioned was “directly behind the center console,” almost sitting on top of it. The deputy testified that it would have been accessible by all three people in the car. The deputy searched the backpack and found marijuana, as well as a notebook, in its front compartment. The back compartment contained a loaded .380 caliber pistol in a gun case, boxes of ammunition, a lock pick set, a bong, and a hypodermic needle. In addition, a butterfly knife was in the console of the driver’s door.

Conviction for possession of burglary tools

Dylan Bay was convicted after a jury trial of being a felon in possession of a firearm and ammunition and misdemeanor counts of possessing burglary tools and giving false information to a peace officer. Bay admitted two prior-prison-term allegations were true, and the trial court sentenced him to three years and eight months in prison.

Court corrects drafting error in text of Penal Code section 466

Bay appealed claiming that insufficient evidence supports the three possession convictions.
The Court of Appeal found that substantial evidence supports a finding that Bay had constructive possession of the burglary tools. The Court interpreted Penal Code section 466 to correct a drafting error. The text of section 466 prohibits a person from “having upon him or her in his or her possession” the specified tools, the statute’s legislative history compels the conclusion that an “or” was inadvertently omitted after the first “her” in the quoted phrase., The Court interpreted section 466 to prohibit a person from having burglary tools “upon him or her or in his or her possession.” (See, People v. Skinner (1985) 39 Cal.3d 765(Skinner)

It was reasonable for the jury to infer that Bay had constructive possession of the backpack

The firearm-and ammunition-possession offenses prohibit a felon from “possess[ing]” or having “under custody or control” the given item (§§ 29800, subd. (a)(1), 30305, subd. (a)(1)), and they are general-intent crimes that require knowing possession of the prohibited item. (People v. Frutoz (2017) 8 Cal.App.5th 171, 176, 213 Cal.Rptr.3d 473; People v. Jeffers (1996) 41 Cal.App.4th 917, 922, 49 Cal.Rptr.2d 86; see CALCRIM Nos. 2511, 2591.)

Possession may be actual or constructive. “ ‘A defendant has actual possession when the weapon is in his [or her] immediate possession or control,’ ” i.e., when he or she is actually holding or touching it. (People v. Blakely (2014) 225 Cal.App.4th 1042, 1052, 171 Cal.Rptr.3d 70; see People v. Montero (2007) 155 Cal.App.4th 1170, 1179, 66 Cal.Rptr.3d 668; CALCRIM Nos. 2511, 2591.)

“To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.” (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417, 125 Cal.Rptr.3d 903. “Mere proximity” or opportunity to access the contraband, “standing alone, is not sufficient evidence of possession.” (Sifuentes, at p. 1417, 125 Cal.Rptr.3d 903; People v. Zyduck (1969) 270 Cal.App.2d 334, 336, 75 Cal.Rptr. 616.)

It was Reasonable to Conclude Bey had Possession of the Burglary Tools

Substantial evidence also supported the conviction for possession of burglary tool, the Court concluded.
The firearm-and ammunition-possession statutes prohibit a felon from “possess[ing]” or having “under custody or control” the given item. (§§ 29800, subd. (a)(1), 30305, subd. (a)(1).) But, section 466 prohibits a person from having burglary tools “upon him or her in his or her possession.” The Court concluded that even though section 466’s text appears to require a defendant to have the tools upon his or her person to be convicted, the statute contains a drafting error and should be interpreted to prohibit constructive possession of burglary tools as well.

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