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


October 18, 2011


(Super. Ct. No. JV131446)

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

In re V.M.



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 allegations that appellant V.M. (hereafter, the minor), possessed a concealed firearm (Pen. Code, § 12101, subd. (a)(1), count one); carried a loaded firearm in a public place (Pen. Code, § 12031, subd. (a)(1), count two); and carried a concealed firearm in a vehicle (Pen. Code, § 12025, subd. (a)(3), count three). The court found count one, a "wobbler," to be a felony; the other two counts were straight felonies.

The court declared the maximum time of confinement that could be imposed on an adult convicted of these offenses was three years. It released the minor to the custody of his parent and placed him on probation for six months.

The minor appeals, claiming the juvenile court abused its discretion by (1) determining count one was a felony; and (2) designating the maximum time of confinement. Except to strike the designation of confinement time, we affirm the order of the juvenile court.


A car being pursued by a Sacramento police officer struck a parked car. The officer saw four males jump out of the car. The officer chased the car's driver, but he failed to catch him. The officer identified the minor as the right front passenger in the car.

A neighbor heard the collision. When he went outside, he saw a police officer chasing three men. He later identified the minor as one of the men he had seen running from the officer.

Investigating officers determined the car had been stolen. During a search of the car, they found a Smith & Wesson .38-caliber revolver that was loaded with six rounds. They located the gun under the right front passenger seat with its muzzle pointing toward the back of the car.



Finding of Count I to be a Felony

The minor claims the juvenile court erred when it determined his violation of count one, a "wobbler," was a felony. The minor claims the court abused its discretion by not concluding the offense was a misdemeanor based on his background, the nature of his offense, and other individualized factors. The minor forfeited this argument, and the argument lacks merit.

The minor has forfeited this argument. Failure to object to discretionary sentencing choices at trial forfeits the objection on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-352.) The minor failed to object in the juvenile court to the court's determination that count one was a felony, and thus has forfeited the argument here.

The closest the minor came to objecting was when, after the court announced its order and recessed the hearing, he asked for a hearing in six months under Penal Code section 17, subdivision (b), for the court to consider reducing the felony to a misdemeanor. This was not an objection to the sentence. Rather, it was an admission and an acceptance of the court's decision and a request to review it in six months time after the minor's probation had ended. This was not sufficient to put the court on notice of an objection to its determination.

Even were we to consider the minor's argument on its merits, we would reject it. The issue of whether a wobbler should be considered a felony or a misdemeanor is left solely to the discretion of the court. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977.) As a result, "'[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.' [Citation.] Concomitantly, '[a] decision will not be reversed merely because reasonable people might disagree. "An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]' [Citation.]" (Id. at pp. 977-978.)

The minor has not shown the court acted arbitrarily or irrationally in concluding count one was a felony. The juvenile court was well within its discretion to determine count one qualified as a felony. First, the minor's actions qualified as a felony. In addition to finding the minor violated Penal Code section 12101, subdivision (a)(1), the wobbler, the court also determined he violated Penal Code sections 12031, subdivision (a)(1), and 12025, subdivision (a)(3). These last two offenses when committed by a minor are straight felonies. (Pen. Code, §§ 12031, subd. (a)(2)(D), 12025, subd. (b)(4).) Thus, the minor's conduct qualified as a felony by statutory definition.

Second, the gun the minor possessed was loaded with live ammunition. This fact aggravated the minor's offense because it increased the danger to public safety. "'It is universally accepted that a loaded gun is so dangerous an instrument that a high degree of caution and circumspection is required of the person handling it.' [Citation.] 'From the time of the common law, firearms were recognized as a dangerous instrumentality because of their great potential harm and in the interest of the preservation of human life and safety a high degree of care was demanded of those who use them.' [Citation.]" (People v. Clem (2000) 78 Cal.App.4th 346, 351.)

Under these circumstances, we cannot conclude the juvenile court's determination was arbitrary or capricious. We thus presume the juvenile court exercised its discretion within legal bounds and affirm its decision.


Maximum Term of Confinement in Dispositional Order

The minor claims the juvenile court erred when it included the maximum term of confinement in its dispositional order. We agree. Because the minor was released to the custody of his parent subject to court probation, the court had no statutory authority to specify a term of imprisonment. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541; In re Ali A. (2006) 139 Cal.App.4th 569, 573.) We thus order the specification of a maximum term of confinement stricken. (In re Matthew A., supra, 165 Cal.App.4th at p. 541.)


The maximum confinement term set by the juvenile court is stricken, and the order is affirmed.

We concur: ROBIE , J. DUARTE , J.


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