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In Re Jerry W., A Person Coming Under the Juvenile Court v. Jerry W

March 29, 2012

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



(Super. Ct. No. JV129039)

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

In re Jerry W. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 found true allegations that defendant Jerry W. (the minor) committed two counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)) and allowed gunfire from his motor vehicle (§ 12034, subd. (b).) The minor was thereafter declared a ward of the court and committed to the Department of Corrections and Rehabilitation, Division of Juvenile Justice.

On appeal, the minor contends the matter must be remanded for the juvenile court to make a conscious determination of whether the offenses were felonies or misdemeanors, as required by Welfare and Institutions Code section 702.*fn1 We agree, and shall remand to the Fresno County Juvenile Court so it may exercise its discretion under section 702.

BACKGROUND

In light of the nature of the contention on appeal, we do not summarize at length the facts of the underlying drive-by shooting offense. It suffices to say witnesses saw or heard shots fired from a green car on Lee Avenue in Fresno toward a group of teenagers walking down the street. After responding, police located a vehicle matching the suspects' car; the minor was apprehended and interrogated.

The minor admitted he drove the stolen car used in the shooting, and was directed where to drive by the other passengers in the car. The minor knew that at least two passengers had guns, what kind of guns they had, and that they intended to shoot from the car at someone.*fn2

A juvenile wardship petition was filed, alleging the minor had committed two counts of felony assault with a firearm (Pen. Code, § 245, subd. (a)(2) -- counts 1 and 2); permitting a person to shoot from the car he was driving, a felony (Pen. Code, § 12034, subd. (b) -- count 3); and felony receipt of stolen property (the car) (Pen. Code, § 496d, subd. (a) -- count 4).

Following a contested jurisdictional hearing, the court (by Fresno Superior Court Judge Arax), in Fresno County Juvenile Court case No. 08CEJ600049-4, found the charges "true as alleged" in counts 1, 2 and 3 of the petition.

The matter was transferred to Sacramento County for disposition.

At the contested disposition hearing in Sacramento County, the court (by Sacramento Superior Court Judge Eurie) stated: "So the record is clear . . . we are here today on two counts of felony violations of Penal Code section 245[, subdivision] (a)(2)(f), and Penal Code section 12034[,] subdivision (b) following a jurisdictional hearing in Fresno County where that court found those allegations to be true and sustained the petition as ...


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