(Solano County Super. Ct. No. J38966)
The opinion of the court was delivered by: McGuiness, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
W.B. (appellant), born in 1994, appeals from a dispositional order in which the juvenile court: (1) found he violated Penal Code, sections 246.3*fn1 (willful discharge of a firearm in a grossly negligent manner) and 243, subdivision (d) (battery causing serious bodily injury); and (2) entered judgment on a marijuana sales count (Health & Saf. Code, § 11359) that appellant previously admitted and for which he had received deferred entry of judgment. Appellant contends the court erred in: (1) finding he violated section 246.3 because the court did not find, and there was no substantial evidence that, he willfully discharged the gun; (2) finding he committed battery because there was no substantial evidence that he intentionally discharged the gun; and (3) entering judgment on the marijuana sales count. We agree and therefore reverse the order.
FACTUAL AND PROCEDURAL BACKGROUND
On November 10, 2008, a juvenile wardship petition was filed alleging appellant possessed marijuana for sale (Health & Saf. Code, § 11359, count 1). On January 13, 2009, appellant admitted the allegation in exchange for deferred entry of judgment and was returned to his mother's custody.
On September 14, 2009, an amended petition was filed adding allegations that appellant discharged a firearm in a grossly negligent manner (§ 246.3, count 2) and committed battery causing serious bodily injury (§ 243, subd. (d), count 3). The petition was further amended on October 1, 2009, to add an allegation that appellant committed assault with a firearm (§ 245, subd. (a)(2), count 4).
At a contested jurisdictional hearing on November 5, 2009, 19 year old C.S. testified that he and appellant were friends and saw each other regularly. On September 13, 2009, C.S. went to appellant's house to pick up some money from another friend, R.A. When C.S. arrived, he socialized with appellant's mother's friend for two minutes, then went downstairs to the garage where he met with appellant and R.A. When C.S. got to the garage, appellant told him his dirt bike was missing and asked whether he knew where it was or had taken it. C.S. mentioned his dogs were also missing.
R.A., who was standing towards the front of or to the side of a Mustang that was parked in the garage, asked C.S. to come over to where R.A. was standing. When C.S. walked over, R.A. showed him a shotgun he had taken off of a shelf or counter in the garage. R.A. look at and played with the gun for a minute and pointed it at C.S., "[p]robably like for a few seconds playing around." After pointing the gun at C.S., R.A. held the barrel or muzzle of the gun toward the ceiling. R.A. was joking and laughing as he did this, and C.S. did not feel threatened. Appellant then asked for the gun and took the gun from R.A., and R.A. left the garage. Appellant looked at the gun and briefly pointed it at C.S. When asked by the prosecutor where exactly appellant pointed the gun, C.S. responded, "It was like--it was just in the direction where I was standing. [¶] . . . [¶] Like part towards my middle of my body or something. Like my chest or something." Appellant then pointed the gun lower, still in C.S.'s direction.
"Probably the first time," C.S. said to appellant, "Don't point that thing at me," or something to that effect. He also told him, "Watch out." When asked by defense counsel whether there was any "hostility of any kind" between C.S. and appellant when appellant was given the gun, C.S. responded, "Just him asking me where his dirt bike was." C.S. acknowledged telling the defense investigator that appellant "kept asking about the dirt bike" while pointing the gun at him and that appellant was leaning against the Mustang as he asked about the dirt bike. C.S. testified he did not feel that appellant was threatening him with the gun.
About "a minute and a couple of seconds" or "[p]robably just a minute" after appellant had taken the gun from R.A., the gun "went off." C.S. testified, "He took the gun from [R.A.], and then he was pointing it at me for a few seconds, and then like he had set it down on the Mustang like leaning against it, and then like--and then like he had pointed it down, like down in a different direction, and then it went off." C.S. explained, "[The gun] was like on the Mustang, and it was pointed towards my direction, and he was leaning against the Mustang with it, and then as he took it down off the Mustang, it went into a different direction, and I guess that's when it hit my leg or something." Immediately after the gun discharged and C.S. was struck, appellant said something to the effect of, " '[R.A.], I didn't know it was loaded.' " Appellant then ran up to his house to tell his mother what had happened. The police and an ambulance arrived and C.S. was taken to the hospital, where he underwent surgery. He stayed at the hospital "[p]robably a week and later returned to the hospital for a second surgery because a piece of the shotgun shell had gone into his leg. At the time of the hearing, C.S. was walking with a walker and had a lot of swelling in his knee.
Vallejo police officer Kyle Wylie testified he was on duty at approximately 3:30 p.m. on September 13, 2009, when he was dispatched to the location of the incident. Two other officers were giving aid to C.S., who had been shot in the upper right leg and was on the ground around "a whole lot of blood." Wylie interviewed appellant after appellant was advised of and waived his Miranda*fn2 rights. Appellant, who cried "off and on" during the interview, told Wylie that he and R.A. were in the garage working on the Mustang for a couple of hours. Appellant and C.S. greeted each other when C.S. arrived, and as they were standing there talking, appellant looked over, saw the barrel of a shotgun mixed in with other items, and grabbed the gun by the barrel. Appellant looked at the gun and the "stock portion, which is the portion that goes against your shoulder if you are going to fire the weapon correctly." Appellant told Wylie that the "stock portion" was "either cut off or broken off." Appellant said that as he went to give the gun to C.S., the barrel was pointed at C.S. and appellant's hand "somehow must have came across the trigger, and the gun went off shooting [C.S.] in the leg." Appellant told Wylie that R.A. never touched the gun and that it was the first time any of them had seen the gun. Later, appellant told Wylie that "they had a party at the house the night before" and that a person he knows as "Cheese" or "Roach" came over, took out the gun and placed it next to a suitcase inside the garage. During the interview with Wylie, appellant did not mention a lost dirt bike or C.S.'s missing dogs. He told Wylie that after the gun went off, "he saw that his friend was shot in the leg and that he began to give him help, but then he got scared, dropped the shotgun and ran into his granny's bedroom inside the house, told her what happened, and then he went into another bedroom in the house and began to cry." When Wylie asked appellant if he had loaded the gun or knew it was loaded when he handled it, appellant responded that he did not know the gun was loaded and did not load it himself.
Vallejo police officer Barbara Anne Greene testified she was the first to arrive at the scene of the incident. C.S. was sitting next to the garage bleeding heavily from his right side and she called for paramedics to come in. C.S. was conscious and responsive to her questions but not cooperative in telling her who shot him. He said he was shot and "just kept asking for an ambulance." When Green asked C.S. where he was, he was also unresponsive to that question. C.S. was in extreme discomfort, which made having a conversation with him somewhat difficult.
Defense investigator David McGraw testified he had been a police officer for over 28 years before becoming a private investigator. He testified he examined the shotgun that was used during the incident and that without manipulating the pump action of the gun, there was no way to know it was loaded just by looking at it. He also testified the gun did not seem to operate properly, as he racked the gun twice but was unable to get it to fire, even after using considerable force on the trigger. He testified that he then handed the gun to the evidence clerk, who tried to pull the trigger but was also unable to do so. The gun did go off when the evidence clerk racked it and pulled the trigger. The evidence clerk handed the gun back to McGraw, who racked it again but was unable to pull the trigger. After racking it one more time, McGraw was able to pull the trigger several times.
Appellant testified that at the time of the incident, he was 15 years old and living in a duplex unit with his mother, other family members and his friend R.A. His grandmother lived next door in the other unit of the duplex. On the day of the incident, appellant and R.A. were in the garage working on appellant's grandmother's Mustang. Appellant had known C.S. for about five or six years at that point and they were "[c]lose friends," "[l]ike family." They visited each other often. When C.S. arrived, he said his dogs were missing. C.S. asked appellant, "You got my dogs?" but it was "[j]ust a question" and C.S. did not seem angry or threatening. Appellant testified that he thought C.S.'s friend had taken appellant's dirt ...