In re Jullien O.

Filed 8/06/07 In re Jullien O. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Based upon a search of minor Jullien O.s residence

and garage, he was charged with possession of four illegal weapons--a short-barreled shotgun (count I), a short-barreled rifle (count II) and two assault rifles (counts III and IV).

During a contested jurisdictional hearing, the juvenile court dismissed counts II, III, and IV, but sustained count I, the possession of the short-barreled shotgun. The court continued the minor as a ward of the court and committed him to the Sacramento County Boys Ranch.

The minor appeals, contending that (1) the evidence is insufficient to prove he had actual knowledge that the short-barreled shotgun was unusually short, (2) a new dispositional hearing is required because the court failed to obtain a current probation officers report, and (3) the court improperly ordered him to pay the cost of drug testing as a condition of probation.

We reject the minors first contention, but, like the People, we agree with his second claim. Therefore, we shall vacate the dispositional orders and remand for a new dispositional hearing.

FACTS

After receiving a tip from SMUD that weapons might be at the home where the minor lived with his mother, his 19-year-old sister and her boyfriend, law enforcement officers conducted a juvenile probation search of the residence. At the time of the search, the minor and four other males, not household members, were found hiding in a bedroom. In the minors bedroom, officers found a cardboard box marked with the serial number 993656 and a sticker reading SKS-RUH. Inside the box were about 20 rounds of 7.26 x 39 millimeter ammunition.

In the garage, officers found a green folded tarp on an upper shelf. The tarp was relatively clean, free of thick dust. An officer who picked up the tarp stated that it felt like it contained some type of a weapon or a rifle. There were three weapons inside the tarp--an SKS rifle a PWA assault rifle, and a short-barreled shotgun. The SKS rifle bore the serial No. 9936566, the same number on the cardboard box found in the minors room. On a different shelf in the same garage was a sawed-off rifle.

The shotgun, which was the basis for the only count sustained, had an overall length of 25 inches with a barrel of 13 1/2 inches.

The minor was taken to the backyard of his residence, advised of his Miranda rights by a detective, and asked if he wanted to talk about the guns. The minor replied, I know. I know . . . . Ive got to say something about those guns. The minor began to cry and asked if he could wait until his mother arrived home before answering the detective. The detective agreed to let him do so.

A few minutes later the minors mother came home and went to the backyard. The minor asked if he could have a moment alone with his mother, and the detective walked about eight to 10 feet away. The detective overheard the minor tell his mother that the minor had them because someones trying to kill me.

The minors mother, on the other hand, testified that she had asked the minor why all the people were there, and he responded, because someones out to kill me. The minors mother also testified that the green tarp was actually a tent, that it was usually stored in a duffel bag, and that she had not seen it in years. She claimed she did not have a gun nor was she aware of anyone in the house having one.

DISCUSSION

I

The minor does not challenge the sufficiency of the evidence to show that he constructively possessed the short-barreled shotgun, i.e., he had knowledge and control over it, or that the shotguns measurements made it unlawful for him to possess. Instead, he argues the evidence is insufficient to prove he had actual knowledge of the shortened length of the shotgun, as required by People v. King (2006) 38 Cal.4th 617. He is wrong.

According to the usual rules of appellate review, When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Green (1980) 27 Cal.3d 1, 55; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.)

Penal Code section 12020, subdivision (a), criminalizes possession of several specified weapons, including any short-barreled shotgun.^[1]A short-barreled shotgun is defined as [a]ny weapon made from a shotgun (whether by alteration, modification, or otherwise) if that weapon, as modified, has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length. ( 12020, subd. (c)(1)(C).)

To prove that possession of a short-barreled shotgun or rifle is a crime pursuant to section 12020, subd. (a), it is not enough for the prosecution to prove that the weapon had the necessary characteristic to fall within the statutory description. It must also prove that the defendant knew of the characteristic. That is, it must prove that a defendant charged with possession of a short-barreled rifle knew the rifle was unusually short, but the defendant need not know the rifles actual dimensions. . . . Knowledge can, of course, be proved circumstantially. . . . [] The prosecution need not prove the defendants knowledge of the rifles precise length. . . . [] A person possessing a short-barreled rifle, and having actually observed the weapon, necessarily knows of its shortness, and thus knows its illegal characteristic, whether or not the person knows how many inches long the weapon is.^[2] (People v. King, supra, 38 Cal.4th at pp. 627-628.)

The court in King found harmless the trial courts error in failing to instruct the jury that the prosecution was required to prove the defendants knowledge of the short-barreled rifles shortness because the defendant admitted both having observed the weapon and likely having picked it up, therefore, he was necessarily aware of the weapons shortness. (People v. King, supra, 38 Cal.4that p. 628.)

Here, the minor argues that other than speculation and conjecture there was no evidence he saw, handled, or wrapped the guns in the tarp and stored them in the garage. The evidence is to the contrary.

The minor essentially admitted the guns were his when he told his mother that he had them because someone was trying to kill him.^[3]A box found in the minors bedroom bore the same serial number as the SKS rifle found wrapped in the tarp in the garage of the minors residence, a fact strongly suggesting the minor was present when the box was opened and SKS rifle removed. Prior to the tarps being used to store the guns, it had been in a duffel bag, making it likely that its location was known to the minor rather than to any of his companions and, therefore, also likely that it was the minor who placed the guns in the tarp. Since the minor claimed he possessed the guns to defend his life, it is inconceivable that he did not examine the guns to see how they operated. In other words, the minor would not wait until a threat to his life was immediate before determining how to use the guns in his defense. Since the evidence shows that the minor examined the shotgun, and because the shotguns barrel was 13.5 inches which is shorter than the 18-inch statutory minimum, i.e., 25 percent shorter than the minimum, the evidence strongly suggests, if not compels, the conclusion the minor knew of the shortness of the weapon. Consequently, substantial evidence supports the courts sustaining of the charge.

II

The minor contends, and the People agree, remand for a new disposition is required because the juvenile court failed to obtain an updated social study. We too agree.

Whenever the minor comes before a juvenile court for disposition he or she is entitled to have the court look at their entire record, including a current social study. (In re Deon W. (1998) 64 Cal.App.4th 143, 147; Welf. & Inst. Code, 280, 702; Cal. Rules of Court, former rule 1492(a) (now rule 5.5785) [The probation officer must prepare a social study of the child, which must contain all matters relevant to disposition . . . .].)

The disposition hearing was conducted November 7, 2005, and the social study was filed on May 16. During all but six days of that interim period, the minor had been out of custody. Consequently, the disposition was conducted without a current social study and remand for a new disposition hearing is required.^[4]

DISPOSITION

The dispositional orders entered by the juvenile court on November 17, 2005, are vacated, and the matter is remanded to the juvenile court for a new dispositional hearing.

MORRISON , J.

We concur:

BLEASE , Acting P.J.

RAYE , J.

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^[1] Hereafter, undesignated section references are to the Penal Code.

^[2] Although the prohibited weapon in King was a sawed-off rifle, thereasoning of King is equally applicable to sawed-off shotguns.

^[3] The trial court expressly believed the detectives statement that he overheard the minor say to his mother that he had them because someones trying to kill me.

^[4] Since we are vacating the minors disposition and remanding for a new hearing, the minors third contention regarding the impropriety of imposing a cost of drug testing as a condition of probation is moot.