In re Rudy T.

Filed 6/12/08 In re Rudy T. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Tulare County. Valeriano Saucedo, Judge.

Allison E. Kaylor, under appointment by the Court of Appeal, for Defendant and Appellant

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.

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Rudy T., a minor found guilty of misdemeanor possession of live ammunition under Penal Code section 12101, subdivision (b)(1), contends that he falls within an exception under Penal Code section 12101, subdivision (b)(2), because he was accompanied by his mother. He also disputes the award of custody credit. For the following reasons, we affirm the conviction and remand for resentencing.

STATEMENT OF THE CASE

On April 24, 2007, the Tulare County District Attorney filed a second amended juvenile wardship petition under Welfare and Institutions Code, section 602, subdivision (a) in the Juvenile Court Department of the Tulare County Superior Court. The petition alleged that appellant Rudy T., a minor, committed seven violations during two separate incidents, a January 11, 2007 incident and a March 22, 2007 incident. With respect to the March 22, 2007 incident, the petition charged appellant with five counts: three felony counts for custodial possession of a weapon in violation of Penal Code section 4502, subdivision (a),^[1]namely custodial possession of a live .22 caliber round, a pocket knife, and a nail; a misdemeanor count for possession of live ammunition by a minor in violation of section 12101, subdivision (b)(1), and a misdemeanor count for being under the influence of methamphetamine and cocaine in violation of the Health and Safety Code, section 11550, subdivision (a). On April 30, 2007, appellant denied the allegations.

A contested jurisdictional hearing was held from May 30, 2007, to June 4, 2007. The two counts related to the January 11, 2007 incident were dismissed on May 30, 2007. The felony counts were dismissed on May 31, 2007. On June 1, 2007, the juvenile court found the misdemeanor count for being under the influence of methamphetamine and cocaine to be true beyond a reasonable doubt. On June 4, 2007, the court found the misdemeanor count for possession of live ammunition by a minor to be true beyond a reasonable doubt.

After a dispositional hearing on July 9, 2007, the court ordered that appellant be released with an electronic monitor to live with his mother. The court awarded appellant 36 days in custody credit for time served.

On August 7, 2007, appellant filed a timely notice of appeal.

FACTS

On March 22, 2007, Deputy Ryan Holmes responded to a call regarding a disturbance at appellants residence. He approached appellant, who was in the backyard. Deputy Holmes determined that appellant was under the influence of a controlled substance, so he placed appellant under arrest. Appellants behavior and testing was consistent with being under the influence of methamphetamine. At the Juvenile Detention Facility, Officer Arthur Gasca searched appellant. In appellants possession was a live .22 caliber round of ammunition, a nail, and a stainless steel pocketknife.

Appellants mother testified that on March 22, 2007, appellant was in the backyard feeding the chickens and cleaning the yard while she was inside the house. Appellants yard where he kept his chickens was in an empty lot, behind the mothers house but separated from her yard. The mother had sent appellant outside to take a breather for a while because he had been fighting with his sisters. The mother believed that the police had been called by a family relative who had been informed about the fight by one of the minors siblings.

The mother also testified that appellants household duties included cleaning up anything he found on the ground in the backyard, which included nails and bullets. The mother was aware that there were bullets in the yard because she knew that kids running through the yard to escape the police would sometimes throw the bullets into the yard. In the past, the mother claimed that appellant had been in her presence when he possessed bullets. However, she did not know that appellant possessed a bullet on this occasion until she found out at the jurisdictional hearing.

DISCUSSION

I.

Misdemeanor Possession of Live Ammunition

On appeal, Rudy T. contends that the evidence was insufficient to prove that he violated section 12101, subdivision (b)(1), which prohibits possession of live ammunition by a minor. He argues that there was insufficient evidence that he was unaccompanied by a parent when he possessed live ammunition. We disagree.

In reviewing a claim regarding the sufficiency of the evidence, the appellate court must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) The appellate court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence that is, evidence which is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (Ibid.) The reviewing court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (Ibid.) The same standard applies in juvenile cases. (In re Macidon (1966) 240 Cal.App.2d 600, 607.)

Section 12101, subdivision (b)(1), provides that: A minor shall not possess live ammunition. The statute provides that section 12101, subdivision (b)(1) is inapplicable in certain situations. Section 12101, subdivision (b)(2) states:

Paragraph (1) shall not apply if one of the following circumstances exists:

(A) The minor has the written consent of his or her parent or legal guardian to possess live ammunition.

(B) The minor is accompanied by his or her parent or legal guardian.

(C) The minor is actively engaged in, or is going to or from, a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, the nature of which involves the use of a firearm.

Because section 12101 first defines an offense in unconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant. (In re Andre R. (1984) 158 Cal.App.3d 336, 341-342.) Therefore, it was appellants burden to prove that he was accompanied by a parent. His argument rests upon the interpretation of accompanied as used in the statute. Thus, the issue is one of statutory interpretation.

The principles governing the proper construction of a statute are well established . (California Teachers Assn. v. Governing Bd. of Golden Valley Unified School Dist. (2002) 98 Cal.App.4th 369, 375.) Courts must ascertain legislative intent so as to effectuate a laws purpose. [Citations.] In the construction of a statute ... the office of the judge is simply to ascertain and declare what is ... contained therein, not to insert what has been omitted, or to omit what has been inserted; ... [Citation.] Legislative intent will be determined so far as possible from the language of statutes, read as a whole, and if the words are reasonably free from ambiguity and uncertainty, the courts will look no further to ascertain its meaning. [Citation.] The court should take into account matters such as context, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction. [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.] (Id. at pp. 375-76.)

The word accompanied is the past tense of the verb accompany or an adjectival form of that verb. The most common definition of accompany is to go with or attend as an associate or companion. (See Websters 3d New Internat. Dict. (1986) p. 12.) Similarly, Blacks Law Dictionary defines accompany as To go along with (another); to attend. In automobile-accident cases, an unlicensed driver is not considered accompanied by a licensed driver unless the latter is close enough to supervise and help the former. (See Blacks Law Dict. (8th ed. 1999) p. 17, col. 1.)

Here, appellant has failed to show that he was accompanied by his mother when he came into possession of live ammunition. First, the record does not show that his mother was in the minors physical presence when he acquired possession of the live ammunition. Rather, his mother testified that she was in the house when he was outside in his part of the backyard. Further, the mother stated that she first learned of the existence of the live ammunition at the juvenile court hearing. Thus, appellant has not shown that his mother went with him to the backyard or was in attendance when he came into possession of the live ammunition.

Second, the record does not show that the mother sent him to the backyard for the purpose of collecting live ammunition. Nor does the record show that she was in a position to supervise appellant when he came into possession of the live ammunition. Rather, the mother testified that she sent him to the backyard to cool off and was unaware that he had a live .22 caliber round until the court hearing.

Thus, appellant has not shown that he is entitled to the exception provided by the section 12101, subdivision (b)(2), which permits a minor to possess live ammunition when accompanied by his parent.

II.

Custody Credit

Appellant also contends that he was improperly credited only with 36 days of custody credit when he was actually in custody for 44 days. He contends that this violated section 726 of the Welfare and Institutions Code. We partially agree with appellant and thus will modify the terms of the disposition of the juvenile wardship petition.

Subdivision (c) of section 726 of the Welfare and Institutions Code provides that: If the minor is removed from the physical custody of his or her parent or guardian as a result of an order of wardship the minor may not be held in physical confinement or a period in excess of the maximum term of imprisonment which could be imposed upon an adult. (Welf. & Inst. Code,  726, subd. (c).) Thus, a minor is entitled to pre-commitment credit for time in juvenile hall pending resolution of the charges. (In re Eric J. (1979) 25 Cal.3d 522, 536.) Appellants probation report indicates that he spent three days in custody beginning January 11, 2007, five days in custody beginning March 22, 2007, and 36 days in custody beginning April 30, 2007, for a total of 44 days. However, he was awarded only 36 days custody credit. This was erroneous because appellant was entitled to 41 days of presentence custody credit.

The California Supreme Court has held that a prisoner is not entitled to credit for presentence confinement unless he shows that the conduct which led to his conviction was the sole reason for his loss of liberty during the presentence period. (People v. Bruner (1995) 9 Cal.4th 1178, 1191 (Bruner), italics added.) The Bruner Court ruled that it is defendants burden to make this showing, and it is an onerous but not impossible burden. (Id. at p. 1193-1194.)

Here, appellant cannot meet his burden of showing that all 44 days of presentence custody were a result of the conduct leading to his disposition. The juvenile court had found appellant guilty of two counts relating to the March 22, 2007 incident. Appellant was in custody for three days beginning January 11, 2007, five days beginning March 22, 2007, and 36 days beginning April 30, 2007. At best, appellant could argue that he is entitled to custody credits beginning on March 22, 2007 which would result in 41 days of custody credit. The People have conceded that appellant is entitled to 41 days of custody credit. Thus, we will modify the juvenile wardship disposition to reflect 41 days of presentence custody credit.

DISPOSITION

The conviction under section 12101, subdivision (b)(1), is affirmed. The disposition is modified to reflect 41 days of presentence custody credits.

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Ardaiz, P.J.

WE CONCUR:

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Levy, J.

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Dawson, J.

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^[1]All further section citations are to the Penal Code, unless otherwise stated.