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California Court Issues Another Opinion Discussing the Concept of Constructive Possession


Just a few weeks ago, we discussed the concept of constructive possession under California law in a blog post. Recently, a state appellate court issued an opinion in another California gun case raising the issue of constructive possession.

According to the court’s opinion, a police officer approached the defendant’s vehicle when it was illegally parked near a popular lookout point. When the officer approached the car, the defendant, who was with two other people, explained that they were just enjoying the view.

The officer recognized the defendant from a prior contact, and knew him to be on probation. The officer asked if there was any contraband in the car. The defendant responded in the negative. The officer then asked the defendant for his identification. The defendant provided a false name initially, but later gave the officer his real name. The defendant then admitted to having a small amount of marijuana in a backpack that was in the car. The officer searched the backpack, which was located directly behind the center console, within reach of all three occupants. Inside was some marijuana, a knife, and a pistol. The gun was preserved for fingerprints and DNA; however, there were no fingerprints on the gun and the DNA was not tested.

The defendant was charged and ultimately convicted of several possessory offenses. The defendant filed an appeal, arguing that the prosecution failed to establish that he possessed the items in the backpack.

The Court’s Decision

The court ultimately reversed the defendant’s convictions on an unrelated claim, but affirmed the lower court’s determination that the defendant constructively possessed the items in the backpack. The court noted that the relevant law precludes an individual from possessing a gun or having a gun under their “custody or control.” The court then briefly noted that actual possession is when a weapon in the immediate control of the defendant. However, the state can prove construction possession by showing the defendant “knowingly exercised a right to control the prohibited item, either directly or through another person.” Of course, mere proximity to a prohibited item is not enough to show constructive possession; there must be additional factors in favor of such a finding.

Here, the court held that the evidence was not “overwhelming,” however, it was sufficient to support the conviction. The court pointed out that there were several facts supporting a finding that the backpack was the defendant’s, including that the defendant knew there was marijuana in the bag. The court also indicated that the defendant exhibited a “consciousness of guilt” when he provided a false name to the police.

Have You Been Arrested for the Possession of a Gun?

If you have recently been arrested for a California gun crime, contact John W. Noonan for assistance. Attorney Noonan is a veteran California criminal defense attorney with over 40 years of experience representing clients charged with all types of serious crimes. Attorney Noonan is a well-respected criminal defense attorney among clients and colleagues alike. To learn more about how Attorney John Noonan can help you defend against the charges you face, call 877-463-3390 to schedule a free consultation.