People v. Zyduck

DRAPER, P. J.

A jury found defendant guilty of receiving stolen property (Pen. Code, § 496). He was admitted to probation on condition he serve 60 days in county jail. He appeals, The sole issue is the sufficiency of the evidence to support the verdict. We find it insufficient.

One Barrett, a timber faller, owned a chain saw. He used the saw December 14. He saw it in his pickup truck, parked in front of his home in Eureka, on the morning of December 15 “sometime before noon, but specific time I wouldn’t know.” He gave no one permission to take it. On December 16, shortly after 5 o’clock a.m., police stopped an automobile near For-tuna, some 22 miles from Eureka. The stopped ear was owned and driven by one Greasebaek. Defendant was a passenger in the front seat. On the rear seat was Barrett’s chain saw. Upon this evidence, the prosecution rested. Defendant offered no evidence. Although properly instructed as to the elements of possession, the jury found defendant guilty.

Knowledge of the stolen character of property may, in some circumstances, be inferred from failure of the possessor to explain his possession

(People

v.

McFarland,

58 Cal.2d 748 [26 Cal.Rptr. 473, 376 P.2d 449]). But it is “conscious possession” which permits this inference (Id., p. 755). Possession must be established before the inference of guilty knowledge can be drawn

(People

v.

Smith,

128 Cal.App.2d 706, 709 [275 P.2d 919]).

The People argue that defendant’s mere presence in a car owned and driven by another, in which the stolen property is readily visible, is enough to show possession. We cannot agree.

Presence in the passenger seat is not enough to show

[336]

possession of a stolen automobile

(People