Filed 8/27/15 In re M.C. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115(a).
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re M.C., A Person Coming Under the B259769
Juvenile Court Law.
___________________________________ (Los Angeles County
THE PEOPLE, Super. Ct. No. YJ36992)
Plaintiff and Respondent,
v.
M.C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Catherine J. Pratt and Wayne C. Denton, Temporary Judges. Affirmed in part,
reversed in part, and remanded with directions.
Bruce G. Finebaum, under appointment by the Court of Appeal, for Defendant
and Appellant, M.C.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Scott A. Taryle,
Supervising Deputy Attorney General, and Michael Katz, Deputy Attorney General, for
Plaintiff and Respondent.
(Pursuant to Cal. Const., art. VI, § 21.)
Minor M.C. appeals from the juvenile court’s jurisdictional and dispositional
orders after it sustained a delinquency petition on four counts: (1) carrying an
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unregistered, loaded handgun (Pen. Code, § 25850), a felony; (2) possession of
a firearm by a minor (§ 29610), a felony; (3) possession of live ammunition by a minor
(§ 29650), a misdemeanor; and (4) resisting or delaying a peace officer (§ 148,
subd. (a)(1)), a misdemeanor. He contends—and the People concede—that the juvenile
court did not make express findings whether to treat counts one and two as felonies or
misdemeanors. We agree and remand for the juvenile court to make the necessary
determinations.
M.C. also contends that there was insufficient evidence to support the
determination that he possessed live ammunition. We agree and reverse the court’s
orders as to count three.
FACTUAL AND PROCEDURAL BACKGROUND
1. Underlying Facts
At 10:15 p.m. on September 25, 2014, Los Angeles Police Department Officer
Mario Fernandez noticed 15 African-American boys drinking alcoholic beverages in
public. After Officer Fernandez got out of his car to investigate, M.C. “looked in [his]
direction, became nervous, and immediately walked away.” Officer Fernandez testified
that after M.C. ran away, he and his partner followed him.
While he ran, M.C. removed a firearm from his right, front pocket, threw it
against a wall, and then jumped over the wall. Without stopping to retrieve the weapon,
both officers followed M.C. over the wall and eventually found him hiding in a shed.
The officers later recovered a .40-caliber Bryco firearm loaded with six rounds of
ammunition. Officer Fernandez testified that M.C.’s flight delayed his investigation
into possible underage drinking because while he was chasing M.C., the other boys
slipped away.
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All further statutory references are to the Penal Code unless otherwise indicated.
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2. Procedural History
On September 29, 2014, a petition was filed under Welfare and Institutions Code
section 602 charging M.C. with: (1) carrying an unregistered, loaded handgun
(§ 25850, subd. (a)); (2) possession of a firearm by a minor (§ 29610); (3) possession of
live ammunition by a minor (§ 29650); and (4) resisting or delaying a peace officer
(§ 148, subd. (a)(1)). Although violations of sections 25850 and 29610 can be charged
as misdemeanors or felonies, the petition alleged these counts as felonies. M.C. denied
the allegations and the matter was set for a jurisdictional hearing.
At the conclusion of the jurisdictional hearing held on October 20, 2014, the
court sustained the allegations in the petition and declared M.C. to be a person described
by Welfare and Institutions Code section 602. At the October 22, 2014 dispositional
hearing, the court sentenced M.C. to a mid-term (six month) camp placement with
a maximum confinement period of three years. The juvenile court did not, at either
hearing, expressly state it was exercising its discretion to designate the offenses in
counts one and two misdemeanors or felonies.
On March 6, 2015, M.C.’s appointed appellate counsel filed a brief in which he
raised no issues and asked us to review the record independently. (People v. Wende
(1979) 25 Cal.3d 436.) On April 2, 2015, we ordered the parties to address whether we
should remand counts one and two for the juvenile court to expressly declare on the
record whether those offenses are misdemeanors or felonies, and whether there was
substantial evidence to support the court’s finding that the minor possessed live
ammunition as alleged in count three. The People concede that the case should be
remanded as to counts one and two. However, the People contend there was sufficient
evidence that M.C. possessed live ammunition, as alleged in count three.
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DISCUSSION
1. The Juvenile Court Did Not Expressly Declare Whether Counts One
and Two Were Misdemeanors or Felonies
Welfare and Institutions Code section 702 provides in relevant part: “If the
minor is found to have committed an offense which would in the case of an adult be
punishable alternatively as a felony or a misdemeanor, the court shall declare the
offense to be a misdemeanor or felony.” The statutory language is mandatory, not
discretionary. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) The mere specification
in the petition that an offense is a felony is insufficient to show that the juvenile court
exercised the required discretion. (In re M.G. (2014) 228 Cal.App.4th 1268, 1277.)
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Violation of section 25850, subdivision (c)(6) (count one) is a wobbler
punishable by imprisonment under section 1170, subdivision (h), or in county jail.
(In re D.D. (2015) 234 Cal.App.4th 824, 829.) Likewise, violation of section 29610
(count two) is a wobbler punishable by imprisonment under section 1170,
subdivision (h), or in county jail. (In re M.G., supra, 228 Cal.App.4th at p. 1277.) Here,
after finding the allegations in the petition true, the juvenile court stated, “Count 1 and 2
are felonies. Count 3 and 4 are misdemeanors.” However, because counts one and two
are wobblers, the juvenile court was required to determine, in its discretion, whether
each offense should be punished as a misdemeanor or felony. (Welf. & Inst. Code,
§ 702.) As the People concede, in failing to do so, it erred.
2. There Was Insufficient Evidence that the Ammunition Was “Live”
In determining whether sufficient evidence supports a juvenile adjudication, we
apply the same standard of review we use in criminal cases. (In re Arcenio V. (2006)
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Although the People charged count one under section 25850, subdivision (a), it is
undisputed that they later proceeded under the theory that M.C. violated
subdivision (c)(6). Indeed, they presented evidence that M.C. violated
subdivision (c)(6)—not subdivision (a)—and the juvenile court found those facts to be
true. Accordingly, our order of April 2, 2015 asked the parties for additional briefing
addressing section 25850, subdivision (c)(6).
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141 Cal.App.4th 613, 615 (Arcenio V.).) “To assess the evidence’s sufficiency, we
review the whole record to determine whether any rational trier of fact could have found
the essential elements of the crime . . . beyond a reasonable doubt.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.) To answer this question, we “ ‘view the evidence in a light
most favorable to respondent and presume in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.’ ” (People v. Johnson
(1980) 26 Cal.3d 557, 576.) We are mindful, however, that “ ‘the inference or
inferences indulged in must be reasonable, must be based on the evidence, and cannot
be the result of mere guess, surmise or conjecture’ [citations], or ‘be based on
imagination, speculation or supposition.’ ” (Marshall v. Parkes (1960) 181 Cal.App.2d
650, 655.)
Section 29650 prohibits a minor from possessing live ammunition. To establish
a violation of this statute, the prosecution must prove beyond a reasonable doubt that
that the ammunition possessed by a defendant is “live.” “Live ammunition” is any
material, such as projectiles, shells, or bullets, presently capable of being fired or
detonated from a firearm. (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1134
(Khamphouy S.).)
Here, the People contend the evidence is sufficient to support the finding in count
three because “the fully loaded gun was in [M.C.]’s pocket, which strongly suggested
that he possessed it in order to fire it.” Alternatively, the People contend that Arcenio V.
was wrongly decided. We disagree with both contentions.
A finding that a minor possessed live ammunition may be sufficiently supported
by opinion testimony, such as an arresting officer’s belief – based on the officer’s
training, background, and experience – that the shell in a juvenile’s shotgun was live.
(In re Brandon G. (2008) 160 Cal.App.4th 1076, 1078–1079.) Similarly, the evidence
may be sufficient where the trial judge personally inspects the ammunition and satisfies
himself that the ammunition is live. (Khamphouy S., supra, 12 Cal.App.4th at p. 1135.)
Here, the testifying officer did not opine on whether the ammunition was live. Nor did
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the trial judge inspect the ammunition. Indeed, the prosecution did not present the
evidence—in physical or photographic form—in court at all.
Nor does the circumstantial evidence in this case support an inference of live
ammunition. In Khamphouy S., the officers’ extreme caution with the bullets supported
an inference that the ammunition was dangerous, and therefore “live.” (Khamphouy S.,
supra, 12 Cal.App.4th at p. 1135.) The evidence in this case, however, does not support
such an inference. Here, Officer Fernandez testified that as M.C. fled, he pulled the gun
from his shorts, threw it against the wall directly in front of him, then jumped over the
wall. Neither Officer Fernandez nor his partner stopped to secure the gun. Instead, they
left it on the street while they chased M.C. Backup officers soon arrived and established
a perimeter, but they too left the gun unattended. Even after the officers had M.C. in
custody, Officer Fernandez testified he removed the magazine from the firearm but did
not explain what, if anything, was done to secure it. As in Arcenio V., the record before
us contains no evidence from which we could reasonably infer that the officers removed
the ammunition for safety reasons, rather than for booking purposes. (Arcenio V.,
supra, 141 Cal.App.4th at p. 617.)
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DISPOSITION
The matter is remanded for an express declaration whether counts one and two
are felonies or misdemeanors. The orders as to count three are reversed. In all other
respects, we affirm.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
ALDRICH, J.
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