In re Shawn M.

Filed 2/21/08 In re Shawn M. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Shawn M. argues there was insufficient evidence for the juvenile court to sustain an allegation that he carried a loaded firearm in a public place. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Oakland Police Officers Nicholas Calonge, Marcus Moreno, and Jason Sena were dispatched to a home where a person was reported to have been shot. When they arrived the officers found appellant lying on the pathway in front of the home of Mr. Bailey, appellants friend who had reported the shooting. Appellant was bleeding from three gunshot wounds to his right foot. Bailey had tried unsuccessfully to assist appellant to his feet. Appellant told Officer Calonge he had been shot, but did not say by whom, and seemed not very forthcoming with any of the detail. Officer Sena described appellant as kind of uncooperative.

When emergency medical personnel at the scene removed appellants jeans, police discovered three bullet holes just below the pocket and three additional holes near the bottom of the right pant leg. Officer Calonge characterized them as two sets of three holes. The jeans were produced in evidence at the jurisdictional hearing.^[1] There were no holes in the right pocket of appellants jeans, but there was a tear along the seam. A bloody sock was removed from appellants right foot and there appeared to be three bullet holes in appellants shoes. Three .22-caliber bullet casings were recovered from the gutter directly in front of Baileys residence, and used casings typically fall very close to the location where a gun has been fired.

Officer Moreno found the cut-off stock of a .22-caliber rifle in a trash can in front of the Bailey residence. The rest of the gun was recovered from Baileys backyard.^[2] The length of the recovered rifle was probably over 20 inches. The rifle appeared to be semi-automatic and could be fired three times simply by repeatedly pulling the trigger. There was a black string tied to the trigger guard when police recovered the gun.^[3] Officer Sena testified that such a string is sometimes used as a sling on a long-barreled firearm. The sling allows the weapon to be placed down someones pants and the string is tied around the persons shoulder to keep the gun in place. Officer Sena also opined in response to a hypothetical question that the victim of a shooting with wounds and circumstances similar to appellants would have had the gun concealed inside his pants, held by a sling.^[4] No ammunition was found on appellants person, and no fingerprints or gunshot residue tests were requested.

A wardship petition alleged appellant possessed a firearm capable of being concealed upon his person; carried a concealed firearm in a vehicle; and carried a loaded firearm on his person in a public place. The court found the third count true beyond a reasonable doubt at the conclusion of the jurisdictional hearing.^[5] The court reasoned that given the physical evidence here, the pants and the sock and the way in which itreally there is really no other plausible explanation to me than that Shawn was in possession of the gun in some form when those shots were fired. The court subsequently declared appellant a ward of the court and placed him on probation in his mothers home. Appellant timely appealed.

DISCUSSION

Appellant argues [t]he evidence in this case was wholly circumstantial, and it did not amount to substantial evidence of possession. He says the courts finding that he possessed the loaded firearm was plainly unreasonable and unsupported by the evidence. We review the record in the light most favorable to the judgment and determine whether it discloses substantial evidence such that a reasonable trier of fact could have found the minor guilty beyond a reasonable doubt. (In re Andrew I. (1991) 230 Cal.App.3d 572, 577.)

We  presume[] in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] This standard applies whether direct or circumstantial evidence is involved. Although it is the [trier of facts] duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the [trier of fact], not the appellate court that must be convinced of the defendants guilt beyond a reasonable doubt. [Citation.]  If the circumstances reasonably justify the trier of facts findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment.    (People v. Catlin (2001) 26 Cal.4th 81, 139.)

Substantial evidence supports the courts conclusion that appellant carried a loaded firearm in a public place.^[6] Appellant had been shot three times in his right foot. There were two sets of three holes in the right leg of his pants, consistent with .22-caliber bullet holes. Three .22-caliber bullet casings were found near appellant and a .22-caliber rifle was found in two pieces, hidden in a nearby trash can and in the backyard of Baileys home. The rifle had been rigged with a sling that could be used to hold the gun concealed inside ones pants. Appellant was uncooperative with the police. These circumstances provide ample evidence to warrant affirmance. The absence of direct evidence that appellant possessed the gun, or that the recovered rifle was the gun which caused appellants wounds does not dictate reversal. These were considerations for the trier of fact. The findings are supported by substantial evidence.

DISPOSITION

The orders of the juvenile court are affirmed.

_________________________

Siggins, J.

We concur:

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McGuiness, P.J.

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Horner, J.^*

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^[1] When Officer Calonge pointed out the lower set of holes, he described them as perhaps not through and through holes . . . three marks on the bottom. On cross-examination, Officer Calonge explained he referred to the ones on the lower part of the pants as notpossibly not being through and through. The ones on the upper appear to me to be through and through. By through and through I mean a clearly defined hole is present and visible on the jeans. Officer Calonge could not tell by looking at the upper holes how they were created, but testified they were consistent with . . . a .22 caliber bullet.

^[2] Bailey showed the police where to find the gun in his backyard, approximately 90 to 100 feet from where appellant lay.

^[3] When the firearm was produced in evidence at trial, the black string was no longer attached to it and Officer Sena did not know how it was removed.

^[4] Sena was qualified as an expert in the concealment of weapons.

^[5] The court dismissed the second count (after observing there was no evidence the firearm was carried in a vehicle) and declined to make a finding on the first count.

^[6] Penal Code section 12031, subdivision (a)(1) provides: A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city . . . .

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.