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In Re A. C., A Person Coming Under the Juvenile Court Law. v. A.C

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (San Joaquin)


August 5, 2011

IN RE A. C., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
A.C., DEFENDANT AND APPELLANT.

(Super. Ct. No. 64824)

The opinion of the court was delivered by: Blease, Acting P. J.

In re A.C.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

The juvenile court sustained a petition alleging the minor, A.C., committed three counts of misdemeanor brandishing a firearm in a public place (Pen. Code, § 417, subds.(a)(2), (a)(2)(A))*fn1 and felony possession of a firearm by a minor (§ 12101, subd.(a)). (Welf. & Inst. Code, § 602.) The juvenile court adjudicated the minor a ward of the court and placed him on probation with conditions, including 90 days in Juvenile Hall with 30 days suspended.

On appeal, the minor contends: 1) two of the brandishing findings should be dismissed; 2) there was insufficient evidence to support the brandishing findings; 3) there was insufficient evidence to support the possession of a firearm by a minor finding; 4) the juvenile court could not designate the possession of a firearm offense as a felony; and 5) the probation condition requiring the minor to participate in substance abuse treatment was invalid. The Attorney General contends the juvenile court failed to impose the mandatory 100 hours of community service. We shall modify the judgment and affirm as modified.

FACTS

L.E. lives in Stockton. On the evening of June 28, 2009, he drove home with his son A.E. after getting a call from his son L.E., Jr. L.E. arrived to find his wife I.E. and L.E., Jr. almost in the middle of the street. One of his neighbor's friends was walking towards L.E., Jr. with a baseball bat. L.E. told the person he was not going after his son with the bat.

As L.E. got out of his van, another young person, the minor, took a handgun from the front of his shirt and pointed it at L.E., Jr. L.E. described the gun as black, less than eight inches long, with a muzzle of about one-half inch in diameter.

The minor was three feet away from L.E., Jr. L.E., Jr. said, "Go ahead. If you are going to shoot me, go ahead." L.E. told A.E. to go home. The minor cocked the gun, approached L.E., and said "You want some too?" L.E. replied: "Do what you need to do, I am calling the police." The minor put the gun away and ran off.

The minor came to L.E.'s house the next day. He apologized, saying, "I really messed up what I did. I disrespected my family."

A police officer searched the minor's room on the night of the incident. He did not find a gun or indicia of firearm ownership.

DISCUSSION

I

The juvenile court sustained three counts of brandishing a firearm, one count for each person present -- L.E., L.E., Jr., and I.E. The minor contends a single incident of brandishing can support only one charge, no matter how many people were threatened. The Attorney General agrees. We accept the concession.

In In re Peter F. (2005) 132 Cal.App.4th 877, the juvenile court sustained four counts of brandishing under subdivision (a)(1) of section 417 based upon the minor's having waved a knife in a threatening manner on two separate occasions, each occasion with two people present. (Id. at pp. 878-879.) On appeal, the appellate court concluded that only one count of brandishing could be sustained for each incident regardless of the number of persons present. (Id. at p. 879.) The court explained: "[B]randishing a deadly weapon in the presence of another person is not a crime of violence 'upon' that person, but is committed in someone's presence. Once the brandishing becomes an assault, the observers of the brandishing become victims and culpability increases. Thus, a single act of brandishing can only support a conviction of a single count of violation of section 417, subdivision (a)(1), no matter how many people witness the act." (Id. at p. 881.)

Although In re Peter F. involved a deadly weapon under subdivision (a)(1) of section 417 rather than, as here, a firearm under subdivision (a)(2) of that section, there is no difference as to how the instrument, be it a firearm or a deadly weapon is shown -- it must be drawn or exhibited in an angry, rude or threatening manner in the presence of others. Consequently, the reasoning of In re Peter F. is equally applicable to subdivision (a)(2) of section 417. We shall strike counts 2 and 3.

II

The minor contends there is insufficient evidence the firearm was brandished in a public place to support the brandishing allegation. We disagree.

We review the whole record in the light most favorable to the juvenile court's finding to determine if it discloses substantial evidence such that a reasonable trier of fact could find beyond a reasonable doubt that the minor committed the allegations. (In re Jose R. (1982) 137 Cal.App.3d 269, 275.) We presume the existence of every fact the judge could reasonably deduce from the evidence and indulge in all reasonable inferences in support of the finding. (Ibid.)

Section 417, subdivision (a)(2) states in pertinent part: "(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm" is guilty of brandishing a firearm. Subdivision (a)(2)(A) of section 417 provides for additional penalties: "If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person . . . ." For the purposes of this section, a "'public place'" is a "public place" or a "public street" in an "incorporated city," or a "public street in an unincorporated area." (§ 417, subd. (f).)

The minor claims the incident was not in a public place because it happened in a gated community "with one entrance in and one out." There was no evidence at the jurisdiction hearing that the minor or the L.E. family lived in a gated community, or that the incident took place in one. A probation officer stated at an earlier hearing that the minor lived in a gated community, but the officer did not testify at the jurisdiction hearing, and his statement was not admitted as evidence.

Noting the incident took place on a cul-de-sac in a residential neighborhood, the minor asserts that where the evidence equally supports two inferences, then neither inference is established, and the party with the burden of proof has failed to sustain its burden. (People v. Allen (1985) 165 Cal.App.3d 616, 626; Pennsylvania R. Co. v. Chamberlain (1933) 288 U.S. 333, 339 [77 L.Ed. 819, 823]; but see Lavender v. Kurn (1946) 327 U.S. 645, 653 [90 L.Ed. 916, 923] ["Whenever facts are in dispute or the evidence is such that fair-minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference."].) Claiming the evidence equally supports inferences that the incident was or was not in a public place, the minor concludes the People failed to sustain their burden.

The evidence does not equally support two inferences. Most residential neighborhoods are open to the public. The juvenile court could reasonably infer that the street where the minor brandished the weapon was open to the public.

III

The minor also argues there is insufficient evidence he brandished a firearm to support the brandishing finding. He claims the weapon was never found, and the testimony at trial did not establish beyond a reasonable doubt the minor brandished a firearm as opposed to a pellet gun, BB gun, or some other facsimile firearm.

This court recently dispensed with a similar argument in People v. Monjaras (2008) 164 Cal.App.4th 1432. There, the defendant confronted a woman "late at night in the lighted parking lot of an apartment complex," told her, "'Bitch, give me your purse,'" and "pulled up his shirt and displayed the handle of a black pistol tucked in his waistband." (Id. at p. 1434.) On appeal, this court concluded the evidence was sufficient to "support[] a reasonable inference that the pistol he used was a real firearm, not a toy" and indeed went so far as to say that "a moribund claim like that raised by defendant has breathed its last breath." (Id. at p. 1435.) The court explained that "[c]ircumstantial evidence alone is sufficient to support a finding that an object used by a robber was a firearm." (Id. at p. 1436.) For example, a "'defendant's own words and conduct in the course of an offense may support a rational fact finder's determination that he used a [firearm].'" (Id. at pp. 1436-1437.) "Simply stated, when as here a defendant commits a robbery by displaying an object that looks like a gun, the object's appearance and the defendant's conduct and words in using it may constitute sufficient circumstantial evidence to support a finding that it was a firearm . . . . In other words, the victim's inability to say conclusively that the gun was real and not a toy does not create reasonable doubt, as a matter of law, that the gun was a firearm. [Citation.]" (Id. at p. 1437.)

The same can be said of the brandishing charge here. L.E. saw the gun and described it in some detail. After L.E., Jr. said, "Go ahead. If you are going to shoot me, go ahead," the minor cocked the gun, moved towards L.E., and said, "You want some too?" indicating the minor's belief that the gun was operational and dangerous. The minor's apology the next day indicates a guilty mind, reinforcing the inference that he displayed a firearm. Taken together, this is substantial evidence supporting the juvenile court's finding.

IV

The minor contends there is insufficient evidence to support the possession of a firearm by a minor allegation.

Section 12101, subdivision (a)(1) provides: "A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person." The minor contends there is insufficient evidence that the weapon he possessed was a firearm, as opposed to a facsimile weapon like a BB gun or paintball gun. This is the same argument he made regarding the brandishing allegation which we rejected in Part III. For the reasons already stated, we reject this argument again.

V

The minor contends the juvenile court improperly designated as a felony the possession of a firearm by a minor allegation. We disagree.

The juvenile court sustained an allegation that the minor violated section 12101, subdivision (a)(1), and found the offense was a felony pursuant to section 12101, subdivision (c)(1)(C). Subdivision (c) of section 12101 states in pertinent part: "Every minor who violates this section shall be punished as follows: [¶] (1) By imprisonment in the state prison or in a county jail if one of the following applies: . . . [¶] (C) The minor has been found guilty of a violation of paragraph (1) of subdivision (a). [¶] (2) Violations of this section other than those specified in paragraph (1) shall be punishable as a misdemeanor." (Italics added.)

The minor asserts the juvenile court could not sustain the felony finding because he was not "found guilty" of the crime. He notes that a juvenile court cannot find the minor "guilty" of an alleged offense, but instead determines whether the offenses alleged in the Welfare and Institutions Code section 602 petition are true. (Cal. Rules of Court, rule 5.780(a); Welf. & Inst. Code, §§ 602, 702.) Moreover, "minors charged with violations of the Juvenile Court Law are not 'defendants.' They do not 'plead guilty,' but admit the allegations of a petition." (In re Joseph B. (1983) 34 Cal.3d 952, 955.)

The minor points out that Welfare and Institutions Code section 203 provides: "An order adjudging a minor to be a ward of the juvenile court shall not be deemed a conviction of a crime for any purpose, nor shall a proceeding in the juvenile court be deemed a criminal proceeding." Relying on "the significant differences between a finding of criminal guilt in an adult criminal court and a declaration of wardship by a juvenile court" (People v. Smith (2003) 110 Cal.App.4th 1072, 1080), the minor asserts a juvenile court adjudication is not the same as a finding of guilt in criminal court.

According to the minor, the language of section 12101, subdivision (c)(1)(C) is clear. A felony finding is premised on a finding of "guilt," which cannot be made in juvenile court. Since the juvenile court could not find the minor was "guilty" of violating section 12101, subdivision (a), the minor concludes the juvenile court could not designate the offense as a felony.

"Our role in construing a statute is to ascertain the Legislature's intent so as to effectuate the purpose of the law. [Citation.] In determining intent, we look first to the words of the statute, giving the language its usual, ordinary meaning. If there is no ambiguity in the language, we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.] The words, however, must be read in context, considering the nature and purpose of the statutory scheme. [Citation.]" (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.)

The minor gives the term "guilty" a more precise meaning than the Legislature intended. His argument ignores the strong similarities between a juvenile court sustaining allegations that a minor has committed a crime, and a finding of guilt in criminal court. In order to sustain the allegation that a minor comes within the provisions of Welfare and Institutions Code section 602, the juvenile court must make a "finding" (Welf. & Inst. Code, § 702) that the minor has "violate[d]" a "law of this state . . . ." (Welf. & Inst. Code, § 602, subd. (a).) Criminal allegations in a delinquency hearing are subject to the same proof beyond a reasonable doubt standard as applied to criminal court. (In re Winship (1970) 397 U.S. 358, 368 [25 L.Ed.2d 368, 378].) Thus, "[a] minor's admission of a juvenile court petition is analogous [to a guilty plea], for it constitutes an assent to all facts essential to a finding that the minor is a person described in [Welfare and Institutions Code] section 602." (In re John B. (1989) 215 Cal.App.3d 477, 484; In re Patterson (1962) 58 Cal.2d 848, 853 [admission by minor is equivalent to plea of guilty]; accord Ricki J. v. Superior Court (2005) 128 Cal.App.4th 783, 791.)

Delinquency and criminal proceedings are not the same; criminal cases contain a punitive purpose absent from delinquency proceedings. (In re Myresheia W. (1998) 61 Cal.App.4th 734, 740-741.) However, like a guilty verdict, a finding that the minor committed the offenses alleged in the petition "subject[s] the child to the stigma of a finding that he violated a criminal law and to the possibility of institutional confinement[.]" (In re Winship, supra, 397 U.S. at p. 367 [25 L.Ed.2d at p. 377], fn. omitted.) A prior juvenile adjudication can be considered a strike under the Three Strikes law. (§§ 667, subd. (d)(3), 1170.12, subd. (b)(3).) This does not violate the rule of Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] because "the prior criminal misconduct establishing this recidivism was previously and reliably adjudicated in proceedings that included all the procedural protections the Constitution requires for such proceedings -- indeed, every substantial safeguard required in an adult criminal trial except the right to a jury."*fn2 People v. Nguyen (2009) 46 Cal.4th 1007, 1021.)

The Legislature has likewise used the term "guilty" in contexts intended to apply to juvenile adjudications. Welfare and Institutions Code section 871, subdivision (a) states that any person who escapes from the custody "of a probation officer or any peace officer in a county juvenile hall, or committed to a county juvenile ranch, camp, forestry camp, or regional facility . . . is guilty of a misdemeanor . . . ." Subdivision (d) of Welfare and Institutions Code section 871 declares that a minor under the supervision of a probation officer who removes his or her electronic monitor without permission "shall be guilty of a misdemeanor." Also, a minor may plead "not guilty by reason of insanity" to the allegations in a juvenile petition. (§ 25, subd. (b); Welf. & Inst. Code, § 702.3, subd. (a); In re Javier A. (1984) 159 Cal.App.3d 913, 961.)

The Legislature is more explicit when stating that a penal provision does not apply to juvenile adjudications. For example, the court security fee in section 1465.8, which is imposed for "every conviction for a criminal offense" does not apply to delinquency adjudications. (See Egar v. Superior Court (2004) 120 Cal.App.4th 1306, 1308 ["clear" statutory language of section 1465.8 limits the fee to criminal convictions].) Although a juvenile court does not literally find a minor "guilty" when it sustains the alleged offenses, the Legislature did not intend to limit section 12101, subdivision (c)(1)(C) to criminal adjudications when it used the phrase "found guilty."

Our conclusion is supported by the statutory context. Section 12101 applies only to minors. (See § 12101, subds. (a)(1),(b)(1).) The two other provisions in section 12101 allowing for felony punishment also use the term "found guilty." (See § 12101, subds. (c)(1)(A) ["[t]he minor has been found guilty previously of violating this section"], (c)(1)(B) ["[t]he minor has been found guilty previously of an offense specified in subdivision (b) of Section 12021.1 or in Section 12020,12220, 12520, or 12560"].) If we were to accept the minor's argument, then felony punishment for this provision would be limited to cases where the minor was currently convicted of the offense in criminal court, or had previously been convicted in criminal court of this offense or one of the offenses described in section 12101, subdivision (c)(1)(B). Since section 12101 is not one of the offenses in which the minor is presumed to be unfit for juvenile court (Welf. & Inst. Code, § 707, subd. (b)), applying the minor's construction would drastically limit the application of section 12101's felony provision.

We conclude the Legislature did not intend this result. The juvenile court could determine the minor's offense was a felony after sustaining the allegation that he violated section 12101, subdivision (a)(1).

VI

Citing People v. Lent (1975) 15 Cal.3d 481, the minor contends the condition of probation that he "participate in a program of substance abuse detection and treatment at the direction of the probation officer" should be stricken because it is not related to his offense and the minor has no history of substance abuse.

The minor did not object to the probation conditions. If not first brought to the attention of the sentencing court, a probationer forfeits any claim a condition was factually inappropriate based on the factors set forth in Lent. (People v. Welch (1993) 5 Cal.4th 228, 234-235.) Forfeiture also applies to challenges to probation conditions imposed by the juvenile court. (In re Justin S. (2001) 93 Cal.App.4th 811, 814.) The minor's failure to object forfeits his claim on appeal.

VII

The Attorney General contends the juvenile court failed to apply the mandatory community service provision of section 1203.1, subdivision (g)(2) which states: "[A]ny person who violates section 12101 shall be ordered to perform not less than 100 hours and not more than 500 hours of community service as a condition of probation."

Section 1203.1 governs adult probation conditions, while juvenile probation is governed by Welfare and Institutions Code section 730. (In re Bernardino S. (1992) 4 Cal.App.4th 613, 622.) Although some dispositional orders are commonly referred to as "conditions of probation" (see, e.g., Welf. & Inst. Code §§ 725, subd. (a), 729), this terminology is misleading in the juvenile context as "a dispositional order differs fundamentally from a grant of probation." (In re Bernardino S., supra, at p. 622, fn. 5.) In criminal law, probation is an act of clemency (People v. Howard (1997) 16 Cal.4th 1081, 1092), and a criminal defendant may generally decline probation if he or she deems the conditions too onerous. (People v. Thurman (2005) 125 Cal.App.4th 1453, 1461.) "In contrast, juvenile probation is not an act of leniency or an alternative to a more rigorous prescribed penalty, but 'a final order made in the minor's best interest.' [Citation.] The order is unconditional and the juvenile has no right to 'refuse' it." (In re Bernardino S., supra, 4 Cal.App.4th at p. 622, fn. 5.)

The juvenile court generally has different goals and more discretion in fashioning probation conditions than a criminal court. When the state asserts jurisdiction over a minor, it stands in the shoes of a parent. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033-1034.) Broadly, the juvenile court's task is to head off delinquency before the minor becomes a "'serious and habitual offender[].'" (In re Jason J. (1991) 233 Cal.App.3d 710, 715, quoting Stats. 1989, ch. 1117, § 1, disapproved on other grounds in People v. Welch, supra, 5 Cal.4th at p. 237), and it is charged with providing for the protection and safety both of the public and the minor. (In re Binh L. (1992) 5 Cal.App.4th 194, 204.)

Given its broad task, the juvenile court is vested with equally broad discretion. Welfare and Institutions Code section 730, subdivision (b) authorizes the juvenile court to make "any and all reasonable orders for the conduct of the ward" and to "impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." In formulating these conditions, the juvenile court must consider not only the circumstances of the crime but the minor's entire social history. (In re Binh L., supra, 5 Cal.App.4th at p. 203.) The juvenile court's broad discretion to fashion appropriate conditions of probation is therefore distinguishable from the discretion exercised by a court sentencing an adult offender to probation. (Ibid.)

The Legislature has established different rules for probation in delinquency and criminal cases. The rules for juvenile probation are found in the Welfare and Institutions Code; the Penal Code generally does not regulate juvenile probation. (See, e.g. In re Kazuo G. (1994) 22 Cal.App.4th 1, 8 [declining to apply section 1203's definition of probation to juvenile probation].) We conclude the Legislature did not intend to regulate juvenile probation when it placed the mandatory community service requirement in section 1203.1. The juvenile court was not authorized to impose the mandatory community service provision of section 1203.1, subdivision (g)(2).

DISPOSITION

Two of the brandishing counts (counts two and three) are stricken. The juvenile court is directed to amend the commitment order to reflect the striking of the two brandishing counts and forward an amended copy of the order to the probation authorities. As modified, the judgment (order) is affirmed.

We concur: HULL , J. MAURO , J.


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