Jorge M., In re

Page 320

78 Cal.Rptr.2d 320

Previously published at 66 Cal.App.4th 809

66 Cal.App.4th 809, 98 Cal. Daily Op. Serv. 7173,

98 Daily Journal D.A.R. 9911

In re JORGE M., a Person Coming Under the Juvenile Court Law The PEOPLE, Plaintiff and Respondent, v. JORGE M., Defendant and Appellant.

No. B108677.

Court of Appeal, Second District, Division 4, California.

Sept. 14, 1998.

Review Granted Jan. 13, 1999.

[66 Cal.App.4th 811] Lorraine L. Loder, under appointment by Court of Appeal, Los Angeles, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

EPSTEIN, Associate Justice.

Jorge M. ¹ appeals from an order sustaining a petition brought under Welfare and Institutions Code section 602. The petition charged him with possession of an assault weapon in violation of Penal Code section 12280, subdivision (b) and unlawful firearm activity in violation of a condition of probation pursuant to Penal Code section 12021, subdivision (d). ² He argues the evidence is insufficient to establish that he actually possessed an assault weapon in violation of section 12280 or that he knew the rifle was an assault weapon. We find no substantial evidence to support the assault weapon violation, and reverse.

Appellant also argues the evidence is insufficient to establish that he possessed firearms in violation of the conditions of his probation. We conclude that the evidence was sufficient to sustain the petition on this ground. Finally, appellant argues the juvenile court erred in failing to designate whether it found each offense to be a felony or misdemeanor pursuant to Welfare and Institutions Code section 702. We remand for that finding.

FACTUAL AND PROCEDURAL SUMMARY

On November 11, 1996, pursuant to a plea agreement in case number FJ15217, appellant was made a ward of the court after admitting that he had been in possession of a controlled substance. Among the conditions of probation imposed were that appellant "[n]ot have any dangerous or deadly weapons" and that he "[s]ubmit to search and seizure and testing and urinalysis."

On December 5, 1996, Los Angeles Police Department officers and probation officers conducted a probation investigation at appellant's home. It consisted of one large room with a bunk bed in one corner. A door led off this main room to appellant's parents' bedroom. Officer Brian Tsubokawa asked appellant where he kept his personal possessions. Appellant pointed to the bunk bed area in the main room. Officer Tsubokawa did not ask appellant where he slept, and appellant did not offer that information.

Officer Manuel Ramirez went to the bunk bed and found three rifles on the top bunk: a .22 caliber Remington rifle, a .243 caliber Remington rifle, and a .30-.30 caliber Winchester rifle. None of the weapons were loaded. Appellant told Officer Ramirez that the top bunk was his. Officer Ramirez also found a Russian-made SKS-45 assault rifle on top of a clothes cabinet, no more than 3 feet from appellant's bed. The firearms were not registered.

On December 6, 1996, the present petition was filed against appellant under Welfare and Institutions Code section 602, charging him with possession of an assault weapon (§ 12280, subd. (b)) and with unlawful firearm activity in violation of the terms and conditions of probation (§ 12021, subd. (d)).

At the adjudication hearing, appellant's brother, Juan M., testified that all the rifles belonged to him, not to appellant. He said that he slept on the top bunk bed, that there was no mattress below, and that the area below the top bunk was used only for storage. According to Juan, appellant slept in a bedroom used by their sisters. Juan said that he had taken the rifles from a closet and placed them on the bed because he was going to take them to another brother's home for safekeeping while he went to Mexico for his wedding, accompanied by other family members. Juan left for work before the police officers arrived on December 5th.

Appellant's mother, Josefina M., corroborated Juan's account. Appellant testified in his own behalf saying that he slept in the bedroom with his sisters and that the weapons belonged to his father. He denied ever playing with the weapons.

The juvenile court found the allegations of the petition true. Appellant was placed in a Camp Community Placement Program for a period not to exceed three years and eight months. He filed a timely notice of appeal.

DISCUSSION

I

Appellant first challenges the sufficiency of the evidence that he possessed an assault weapon in violation of section 12280, subdivision (b). He argues there is no evidence that he actually possessed the weapon or that he knew or appreciated that the weapon found in his home was a prohibited assault weapon.

"When reviewing a judgment, an appellate court 'must determine "whether, after viewing 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." [Citation.] "[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ... such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." [Citation.] We " 'presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " [Citation.]'...." (In re Manuel G. (1997) 16 Cal.4th 805, 822, 66 Cal.Rptr.2d 701, 941 P.2d 880.)

"Whether the evidence is direct or circumstantial, our inquiry is to determine if any reasonable trier of fact could have found appellant guilty beyond a reasonable doubt. [Citation.] An appellate court's belief that the circumstantial evidence can reasonably be reconciled with innocence does not warrant interference with the determination of the trier of fact. [Citation.]" (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 999, 279 Cal.Rptr. 236.)

Applying these standards, we are satisfied there is substantial evidence from which the trial court could conclude that appellant possessed the assault weapon. The officers testified that appellant identified the bunk as his sleeping area, and the assault rifle was found on top of a chest less than three feet from the bunk bed.

The question of appellant's knowledge that the weapon was an assault rifle is not so easily resolved. The petition alleged a violation of section 12280, a part of the Roberti-Roos Assault Weapons Control Act of 1989. (§ 12275 et seq.; Stats.1989, ch. 19, § 3.) Section 12275.5 expresses the legislative intent of the Act: "The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state. The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings. It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession. It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities."

Section 12280, subdivision (b), also part of the Act, provides in pertinent part: "[A]ny person who, within this state, possesses any assault weapon, except as provided in this chapter, is guilty of a public offense and upon conviction shall be punished by imprisonment in the state prison, or in a county jail, not exceeding one year." The mens rea element of this offense has not been the subject of previous judicial review. Section 20 states the general mens rea rule in California: "In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence."

Appellant cites Staples v. United States (1994) 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 to support his position that knowledge of the prohibited character of the weapon is required. Our case closely resembles Staples. The arguments and logic are the same.

In Staples, the defendant was charged with a violation of the National Firearms Act, 26 United States Code section 5801 et seq. The charge was based on possession of an AR-15 assault rifle which had been modified with a selector switch from an M-16 to be capable of fully automatic firing. The defendant said the rifle had never fired automatically while in his possession, and fired imperfectly in the semiautomatic mode. (Id. at p. 603, 114 S.Ct. 1793.) He was prosecuted under 26 United States Code section 5861, subdivision (d) of the National Firearms Act. That statute provides: "[I]t shall be unlawful for any person ... to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record."

As the Staples court observed, the federal statute is silent concerning the mens rea required for a violation. But this silence was not dispositive. "[S]ilence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal. See [United States v. Balint (1922) 258 U.S. 250] at 251, 42 S.Ct., at 302 [66 L.Ed. 604] (stating that traditionally, 'scienter' was a necessary element in every crime).... On the contrary, we must...