In re Junior R.
Filed 7/10/12 In re Junior R. CA2/5
California Rules of Court, rule 8.1115(a), prohibits courts
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
FIVE
In re JUNIOR R., a Person
Coming Under the Juvenile Court Law.
B234614
(Los Angeles
County
Super. Ct.
No. FJ49161)
THE PEOPLE,
Plaintiff and Respondent,
v.
JUNIOR R.,
Defendant and Appellant.
APPEAL from
a judgment of the Superior Court
of
County.
Robin Miller Sloan, Judge.
Affirmed as modified; remanded in part.
Leslie G.
McMurray, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General,
Paul M. Roadarmel, Jr., and Rama R. Maline, Deputy Attorneys General, for
Plaintiff and Respondent.
_______________
The
juvenile court sustained a petition alleging that appellant Junior R. possessed
a firearm in a school zone in violation of Penal Code
minor in possession of a concealed firearm in violation of section 12101,
subdivision (a)(1). The court declared
the offenses to be felonies, found that appellant was a person described by
Welfare and Institutions Code section 602, adjudged appellant to be a ward of
the court, and ordered appellant to suitable placement.
Appellant
appeals from the orders sustaining the petition and adjudging him to be a ward
of the court, contending that there is insufficient
evidence to support the juvenile court's finding that he possessed a
firearm in a school zone. Appellant
further contends that the juvenile court should have found that the section
626.9 violation was a misdemeanor and that counts 1 and 2 merged under section
654. Appellant also contends, and
respondent agrees, that appellant is entitled to two additional days of
predisposition credit. We affirm the
juvenile court's orders, but remand this matter for a determination of
appellant's maximum period of confinement.
On remand, the court is instructed to correct appellant's predisposition
credit to reflect 27 days of predisposition credit.
Facts
On June 24, 2011, about 2:45
p.m., Los Angeles Police Department Officer Elizabeth Holguin and
her partner were on patrol. They drove
by Sunrise Elementary
School, which was visible from the street. Just as they passed the elementary school,
Officer Holguin saw appellant ride his bicycle southbound in the middle of Euclid
and swerve in and out of traffic.
Appellant cut off the officers.
The officers asked appellant to
pull over, and he complied. Officer
Holguin's partner asked appellant if he had anything on him. Appellant replied that he had a gun in his
pocket. Officer Holguin conducted a
patdown search of appellant and recovered a loaded 22-caliber revolver in his
jacket pocket. The gun was fully loaded,
and appeared to be in working order.
The officers used a measuring
device to determine that appellant was 950 feet away from Sunrise
Elementary School at the time he
possessed the loaded, concealed revolver.
Discussion
1. Sufficiency of the evidence
Appellant
contends that there is insufficient evidence to show that he was within 1,000
feet of a school or that he knew that he was within 1,000 feet and so the
court's finding that he violated section 626.9 must be reversed. We do not agree.
"'In reviewing a challenge to
the sufficiency of the evidence, . . . we "examine the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt."
[Citations.] We presume in
support of the judgment the existence of every fact the trier could reasonably
deduce from the evidence. [Citation.]
[¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance
allegations. [Citation.] "[I]f the circumstances reasonably
justify the jury's findings, the judgment may not be reversed simply because the
circumstances might also reasonably be reconciled with a contrary
finding." [Citation.] We do not reweigh evidence or reevaluate a
witness's credibility.
[Citation.]'" (
Cal.4th 198, 210.) This same standard
applies in determining the sufficiency of the evidence to support the true
finding of a juvenile court. (
Cal.3d 801, 809.)
Section 626.9 prohibits the
possession of a firearm in a school zone, which means on school grounds or
within 1,000 feet of a school.
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Here,
Officer Holguin testified about the distance from appellant's stop to the
school. The prosecutor asked: "Is there a school nearby where this
incident took place?" Officer
Holguin replied: "Yes, Sunrise
Elementary School." The prosecutor
asked: "Do you know how far the
school is from where you were?"
Officer Holguin replied: "It
was – we measured it was 950 feet from a school, Sunrise Elementary." The prosecutor asked: "How did you know what the distance
was?" Officer Holguin replied: "We measured it with a traffic measuring
device to measure the distance."
This is
more than sufficient to show that appellant possessed a gun within a school
zone, which is the area within 1,000 feet of a school. In context, Officer Holguin's statements
clearly meant that she measured the distance from the school to the location
where they stopped appellant. Further,
since appellant travelled some distance away from the school before he was
stopped, he was actually in possession of a gun closer than 950 feet to the
school.
Officer
Holguin also testified about appellant's activities in relationship to the
school. Officer Holguin testified that
she first saw appellant as she and her partner were driving south on Euclid. Appellant was riding his bicycle south on Euclid. They stopped him near the intersection of Atlantic
and Euclid, which Officer Holguin
explained was near a school. When the
prosecutor asked Officer Holguin how she knew she was near a school, Officer
Holguin replied: "Because we just
drove by it." The prosecutor then
asked if the school was visible from the street, and Officer Holguin replied
that it was. Appellant's attorney asked
Officer Holguin if the school was visible from the location where she spotted
appellant. Officer Holguin replied that
she did not recall, but that "[w]e had just past [the school]. I think we saw [appellant] right as we past
going down – further down."
It is more
than reasonable to infer from this that appellant, who was travelling down the
same street as the officers and in the same direction, had also just past the
school.
Section 626.9 requires that a
"person knows, or reasonably should know" that he is in a school
zone. Appellant contends that there is
no evidence that he knew or should have known that he was in a school zone.
As we describe,
when she first saw appellant, both she and appellant were travelling southbound
on Euclid. Officer Holguin had just driven by the
school, which was visible from the street.
It is reasonable to infer that appellant too had just ridden by the
school and saw or should have noticed the school. This is sufficient evidence of the knowledge
element of section 626.9.
2. Felony sentence
Appellant
contends that his violation of section 626.9 could not properly be declared to
be a felony by the juvenile court.
A violation
of section 626.9 may be either a misdemeanor or a felony, depending on the
circumstances. The punishment for
violating section 626.9 is set forth in subdivision (f).
Section
626.9, subdivision (f)(2) provides:
"Any person who violates subdivision (b) by possessing a firearm
within a distance of 1,000 feet from the grounds of the . . . school . . .
shall be punished" as set forth in subparagraphs (A) and (B).
Appellant
appears to believe that the trial court based his punishment on subparagraph
(A)(iii) and that such punishment is improper.
We see no references to subparagraph (A) by the court, or by any
counsel. In fact, comments by appellant's
counsel and the court suggest that the court declared the offense to be a
felony based on subparagraph (B).
Subparagraph
(A)(iii) provides for a straight felony sentence. Subparagraph (B), in contrast provides for
"imprisonment in a county jail for not more than one year or by
imprisonment . . . [in the state prison] for two, three or five years, in all
cases other than those specified in subparagraph (A)." Thus, a violation of section 626.9 is a
wobbler under subparagraph (B).
Appellant's counsel stated that count 1 was a wobbler. No one contradicted her statement. Counsel and the juvenile court both referred
to section 17, subdivision (b), which discusses wobblers. Counsel asked the juvenile court to treat the
offenses as a misdemeanor pursuant to that section. Subparagraph (A)(iii) is a straight felony,
and the court would have no authority under section 17, subdivision (b) to
treat it as a misdemeanor. Thus, it appears
that the court and both parties understood that appellant was being sentenced
under subparagraph (B).
On appeal,
appellant argues that the only applicable punishment provision of section 626.9
is subdivision (g)(4). Appellant is
mistaken. Subdivisions (g)(1) through
(g)(3) require that a minimum three month jail term be served by a defendant
who has a specified prior conviction, if he is granted probation or his
sentence is suspended. Appellant did not
have a prior conviction. Subdivision
(g)(4) provides that "in unusual cases where the interests of justice
would best be served" the trial court may elect not to impose the
"minimum [three month] imprisonment required in this
subdivision." Since appellant does
not fall with the provisions of subdivisions (g)(1) through (g)(3), subdivision
(g)(4), which provides an exception to subdivisions (g)(1) through (g)(3), has
no application to him either.
3.
Section 654
Appellant
contends that the juvenile court erred in finding that section 654 did not
apply to the two counts in this case.
Respondent contends that section 654 does not apply because appellant
has not shown that the juvenile court aggregated his terms under Welfare and
Institutions Code section 726.
Generally,
a juvenile court is required to specify the juvenile's maximum term of
confinement when the juvenile is removed from the physical custody of his
parent or guardian as the result of an order of wardship made pursuant to
Welfare and Institutions Code section 602.
(Welf. & Inst. Code, § 726, subd. (c); see In re Danny H. (2002) 104 Cal.App.4th 92, 106 [only when a court
orders a minor removed from the physical custody of his parent or guardian is
the court required to specify the maximum term the minor can be held in
physical confinement]; In re Joseph G.
(1995) 32 Cal.App.4th 1735, 1743-1744 [same].)
Here, appellant was removed from the physical custody of his mother as
the result of an order of wardship pursuant to Welfare and Institutions Code
section 602. Thus, the juvenile court
should have specified his maximum term of confinement.
Respondent
suggests in its brief that the juvenile court might have addressed this issue
at a progress hearing set for December
15, 2011. Appellant has
requested that we augment the record with two minute orders from that date, and
we have granted that request. There is
no reference to a maximum term of confinement of any sort in those orders. Accordingly, this matter is remanded to the
juvenile court to make such a determination.
4. Predisposition credit
Appellant
contends that he is entitled to two additional days of predisposition
credit. Respondent agrees. We agree as well.
A juvenile
court is required to calculate and give credit for the number of predisposition
days in custody, including juvenile hall.
(In re Eric J. (1979) 25
Cal.3d 522, 535-536; In re Pedro M. (2000)
81 Cal.App.4th 550, 556.) A partial day
in custody, including the day of sentencing, is treated as a whole day for
predisposition custody credit purposes.
(In re Marquez (2003) 30
Cal.4th 14, 25-26.)
Appellant
was awarded 25 days of predisposition credits at the last disposition
hearing. Appellant was arrested on June 24, 2011 and the disposition
hearing was on July 20, 2011,
a period of 27 days. He appears to have
been in custody that entire time. Thus,
he is entitled to two additional days of predisposition credit.
Disposition
The juvenile court's orders are
affirmed, but this matter is remanded for a determination of appellant's
maximum period of confinement. On
remand, the court is instructed to correct appellant's predisposition credit to
reflect 27 days of predisposition credit.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
ARMSTRONG,
J.
We concur:
TURNER,
P. J.
MOSK,
J.
Penal Code unless otherwise indicated.
appellant that it is wrong to carry a loaded gun.
