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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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


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