Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. 09CEJ600508-1 Brian M. Arax, Judge.
Julie Dunger, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Leanne LeMon, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Poochigian, J.
INTRODUCTION
In March 2010, 17-year-old appellant D.M. was a passenger in a vehicle that was subject to a traffic stop. He was sitting in the center of the back seat between two other people. A rifle was found propped up against the center hump of the back seat, and appellant had to step over the rifle to get out of the car. Appellant admitted he had been sitting in the back seat for about 25 minutes, but he denied having any knowledge of the weapon’s presence, and claimed he only saw the weapon when officers ordered him to get out of the vehicle.
After a contested jurisdictional hearing, the Superior Court of Fresno County found true all of the allegations of a subsequent juvenile petition (Welf. & Inst. Code, § 602, subd. (a)), that appellant committed count I, felony possession of a concealed firearm by a minor (Pen. Code, § 12101, subd. (a)); count II, felony carrying a loaded firearm (§ 12031, subd. (a)(1)); and count III, misdemeanor possession of live ammunition by a minor (§ 12101, subd. (b)(1)). The court continued appellant as a juvenile ward on probation and ordered him to serve 60 days in the Juvenile Justice Center.
All further statutory citations are to the Penal Code unless otherwise indicated.
In June 2009, an original juvenile petition had been found true based on appellant’s admission that he violated section 496, subdivision (a), and Vehicle Code section 10851, subdivision (a), for taking and driving a relative’s car without permission. Appellant was placed on deferred entry of judgment subject to various terms and conditions.
On appeal, appellant contends this court must strike the court’s true finding on count I, possession of a concealed weapon by a minor, because the rifle was too large to be a “concealed weapon.” Appellant further contends that the court improperly “revived” count III, possession of live ammunition by a minor, after it had granted appellant’s motion to dismiss that count, and violated the constitutional prohibition against double jeopardy, when it allowed the prosecution to reopen and introduce additional evidence. Appellant also contends the court relied on an incorrect legal standard when it found counts II and III true, and those counts are not supported by substantial evidence because appellant never saw the rifle until he got out of the car. Finally, appellant argues that the court should have found count II to be a misdemeanor rather than a felony.
We will strike the court’s true finding on count I for insufficient evidence. We will affirm the court’s true finding for count II, carrying a loaded firearm, but strike the court’s finding that the offense was a felony to reflect that count II should be a misdemeanor. We will remand the matter for the juvenile court to exercise its discretion to determine the minimum term of confinement and otherwise affirm.
FACTS
At 11:40 p.m. on March 23, 2010, officers from the Fresno Police Department’s MAGEC investigation unit conducted a traffic stop on a white four-door Chrysler mid-sized sedan. The officers initially observed the vehicle while it was at a gas station on Winery in Fresno. The vehicle left the gas station and traveled a short distance on Winery. It failed to stop in response to a marked patrol car’s emergency lights and siren. The vehicle turned into an apartment complex’s parking lot at Kings Canyon and Chestnut. The vehicle reached a deadend and was unable to continue, and the car pulled into a parking stall and stopped.
Officer Timothy Edwards walked toward the parked vehicle with his gun drawn and approached the car from just behind the right rear door. The parking lot was well lit, and the headlights from multiple patrol cars also illuminated the vehicle. Edwards could see into the car through the open right rear passenger window. There was a driver and passenger in the front seat. Three people were sitting on the back bench seat. Appellant was sitting in the middle of the back seat between two other people.
According to the probation report, the officers stopped the car because of a report that shots had been fired from a car into a nearby apartment building.
Edwards ordered all of the occupants to put their hands up in the air and where he could see them. Appellant and three occupants complied with Edwards’s order. The occupant of the right rear passenger seat, M.F., failed to keep his hands raised. M.F. was seated on appellant’s right side. Edwards repeatedly ordered M.F. to keep his hands where Edwards could see them. M.F. moved his torso to the right side of the car, however, and kept lowering both of his hands to the left side of his body, as if he was trying to hide something. Edwards testified that M.F. did not move his torso low enough so that he could have reached the floorboard and placed something under the front seat.
Appellant gets out of the car
Edwards ordered the occupants to get out of the vehicle, one at a time. The driver and front seat passenger got out first. Edwards then directed the three passengers in the back seat to get out of the car through the right rear door. M.F. complied and got out of the back seat. Edwards testified that as appellant got up from the back seat’s center position, appellant “put his hands on the back headrest of the back seat and the back headrest of the front seat and you could see him having to step over something to exit the vehicle.”
The rifle
Edwards testified appellant had stepped over a rifle to get out of the back seat and exit through the right rear door. There were no other items in the back seat that would have impeded his motion or required him to step over. The rifle was propped up against the cushion of the back seat. It was not laying flat on the floorboard. The barrel was facing down, toward the floorboard, and it was “slightly under” the back portion of the front passenger seat. The tip of the barrel was on the right side of the back seat’s center hump. The rifle’s handle (also known as the butt stock) and receiver (which accepts the magazine) were “propped against” the top part of the bottom of the backseat cushion, “more towards the leg area, ” where the passenger would sit down. The back of the rifle was even with the level of the backseat cushion.
Edwards testified appellant had been sitting in the middle of the back seat, over the center hump. The center hump was about three to eight inches high. The rifle was propped up to the right of the center hump, between appellant’s position in the center and M.F.’s position in the right rear passenger seat. Edwards testified that based on appellant’s position in the center of the back seat, the rifle would have been “[s]itting right next to his right leg.” Edward believed appellant could have physically touched the rifle.
The rifle’s magazine was loaded with eight.22-caliber live rounds, and the magazine was attached to the rifle. There were no rounds in the chamber. Edwards estimated the rifle was about 24 to 30 inches long. The butt stock was cut off and there was a plate attached to the back, “[s]o it looked just like a handle, just like a pistol grip versus an actual butt stock.”
In issue II, post, we will address appellant’s contentions as to whether the parties stipulated there were live rounds in the magazine, as it relates to the court’s initial decision to dismiss count III, possession of live ammunition by a appellant.
Edwards checked the rifle’s serial number and “there were no hits found on it, no ownership found on it.”
On cross-examination, Edwards testified that based on the rifle’s size, it could have been laid flat on the floorboard of the back seat and pushed under the front seat, but it could not have been entirely concealed under the front seat. Edwards further testified that even if the tip of the rifle had been under the front seat, part of the butt stock still would have been visible to someone sitting in the back seat.
Edwards conceded that if the rifle had been pushed far enough under the front seat, so that it protruded onto the front seat floorboard, a person in the back seat might not have been able to see the butt stock. Edwards did not know whether there were any obstructions that would have prevented someone in the back seat from sliding something completely under the front seat. The front seat passenger was the first person removed from the car, but Edwards did not see the position of that person’s feet before he opened the front passenger door.
Appellant’s statement
After appellant got out of the car, Edwards advised him of the warnings pursuant to Miranda v. Arizona (1966) 384 U.S 436, and asked appellant if he knew anything about the firearm that was next to him. Appellant denied any knowledge of the rifle. Edwards advised appellant that he had to step over something in the same location as the rifle went he got out of the back seat. Appellant replied that was the first time he had seen the weapon.
Edwards testified that contrary to appellant’s claim, the rifle would have been “sitting right next” to appellant’s leg and “there was no way you could sit in that car and not know that that rifle was right next to you.”
Appellant’s hearing testimony
Appellant testified at the contested jurisdictional hearing that on the night of the traffic stop, he was at a friend’s house at Tulare and Maple, and he called his friend, G.S., for a ride home because it was late. G.S. and four other people arrived to pick up appellant in the white Chrysler. It was dark and “pitch black” when G.S. and the others arrived, and appellant had never before been in that car. Appellant got into the car through the back left side door. Appellant only knew G.S., and he did not know the driver or the other occupants. Appellant sat in the middle of the back seat, between G.S. on his left and another person on his right. Appellant gave the driver directions to his house.
Appellant was subject to a 9:00 p.m. curfew because he was still on probation as a result of the prior juvenile adjudication. The traffic stop occurred around 11:40 p.m., appellant claimed he had been in the car for about 25 minutes, and he further claimed he had been at a friend’s house and just needed a ride home.
Appellant testified he did not see any weapon in the back seat when he got in the car. Appellant said the car’s interior was “just small, ” and the back seat was small and “not like an average normal car.” G.S. was big and taking up all the room on his left side. However, appellant also testified that the person on his right was small “so there was enough room on the right side.”
Appellant testified the driver stopped at a gas station/convenience store. Appellant and G.S. got out of the car through the back left door, and they went into the store and bought something. The other three people stayed in the car and waited in the parking lot. There were bright lights in the store’s parking lot. Appellant and G.S. got back into the car through the back left door. Appellant returned to his place in the middle of the back seat, with G.S. on his left and the other person on his right. Appellant testified he did not see a weapon when he got out and then back into the car from the left side.
Appellant said he heard the police siren right after the car left the convenience store. Appellant acknowledged the driver turned into the driveway of an apartment complex and tried to drive between the buildings. Appellant believed the driver became nervous because of the siren, and he drove through the apartment complex because he kept following appellant’s directions to get to his house.
After the car stopped, the police told them to put up their hands. Appellant followed their directions, faced forward, and kept his hands up. Appellant said the back seat was small enough so that he could see the person on his right side without moving his head. That person kept looking around and putting his hands down. Appellant heard a sound from the bottom of the car, as if something hit the ground.
Appellant testified he saw the rifle for the first time when the person on his right got out of the car through the right side door. Appellant testified the rifle had been between himself and the person on his right side. This person did not have to step over the rifle when he got out of the car. The rifle was partially propped up on the back seat’s center hump, behind the front passenger seat, and pointing down.
As appellant got out of the car, he kept his hands up, and said he carefully stepped over the gun because he was afraid it might go off. Appellant believed he had been in the car for 20 to 25 minutes, between the time he was picked up at his friend’s house to when the traffic stop occurred.
DISCUSSION
I. Count I must be stricken
In count I, the court found true the allegation that appellant violated section 12101, subdivision (a), felony possession of a concealed firearm by a minor. Appellant contends this count must be stricken because there is insufficient evidence that the rifle was a weapon “capable of being concealed.” Respondent concedes that count I must be stricken.
In reviewing the court’s true findings on a juvenile petition, we apply the same standard of review that is used to determine the sufficiency of the evidence for criminal convictions. (In re Brandon G. (2008) 160 Cal.App.4th 1076, 1079-1080; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.)
Section 12101, subdivision (a)(1) states:
“A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person.” (Italics added.)
Section 12001, subdivision (a)(1) further states:
“As used in this title, the terms ‘pistol, ’ ‘revolver, ’ and ‘firearm capable of being concealed upon the person’ shall apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length. These terms also include any device that has a barrel 16 inches or more in length which is designed to be interchanged with a barrel less than 16 inches in length.” (Italics added.)
As respondent notes, the wording of the statute “was clearly intended” to make the statute inapplicable to firearms having a barrel 16 inches or more in length, and “[i]t was incumbent upon the prosecution to prove beyond a reasonable doubt” that the barrel was less than 16 inches in length. (People v. Boyd (1947) 79 Cal.App.2d 90, 93.)
Officer Edwards testified, without contradiction, that the rifle was about 24 to 36 inches long. Edwards extended his hands and demonstrated the length of the rifle, and the court and parties agreed that Edwards showed a length of approximately 30 inches.
We agree with respondent’s concession that there is insufficient evidence the barrel of the rifle was less than 16 inches long, and that the court’s true finding on count I must be stricken.
II. The court did not violate double jeopardy as to count III
In count III, appellant was alleged to have committed a misdemeanor violation of section 12101, subdivision (b)(1), possession of live ammunition by a minor. Appellant contends the court violated the constitutional prohibition against double jeopardy based on a sequence of events which occurred after the prosecution rested its case, when the court initially granted appellant’s motion to dismiss count III because the prosecution failed to prove the ammunition in the rifle’s magazine was “live, ” and then decided to allow the prosecution to reopen its case to prove that point.
We will review the factual background for this issue, which will demonstrate that the court did not recognize that the parties had attempted to stipulate the ammunition in the rifle’s magazine was live, and it did not violate the constitutional prohibition against double jeopardy when it ultimately denied the motion to dismiss count III.
A. Background
On May 11, 2010, the court began the contested jurisdictional hearing. Officer Edwards was the only prosecution witness. During his direct examination testimony, the prosecutor asked Edwards whether the rifle was loaded, and Edwards said it was. Appellant’s counsel interrupted and stated that he would stipulate the rifle “was loaded, magazine was attached to the firearm, ” there were eight rounds in the magazine and none in the chamber, and the magazine “was loaded with a live [sic].22 caliber ammunition.” (Italics added.) The prosecutor agreed to the stipulation.
The court accepted the stipulation and stated: “Loaded magazine, eight rounds in magazine, none in chamber, magazine attached to gun.” However, the court did not repeat appellant’s counsel’s declaration that the rifle was loaded with “live” ammunition.
At the conclusion of Officer Edwards’s testimony, the prosecution rested and appellant’s counsel moved for dismissal pursuant to section 1118. He did not specify which counts he was moving to dismiss.
The court replied that it would consider appellant’s motion to dismiss pursuant to the Welfare and Institutions Code instead of section 1118. However, the court decided to defer hearing arguments on the motion until the next scheduled hearing date. The court stated it would research the motion to dismiss the charges and adjourned for the day.
The court correctly stated that a motion to dismiss in a juvenile proceeding is brought under Welfare and Institutions Code section 701.1, which is “ ‘substantially similar’ ” to a section 1118 motion. (In re Andre G. (1989) 210 Cal.App.3d 62, 66.) While the statutory basis differs, the evaluation of the motion is the same standard applied for motions for acquittal in criminal cases under section 1118 or 1118.1. (See People v. Stevens (2007) 41 Cal.4th 182, 200; People v. Cole (2004) 33 Cal.4th 1158, 1213.)
The minute order for May 11, 2010, does not contain any notations or orders that the court dismissed any counts.
On May 13, 2010, the court resumed the contested jurisdiction hearing and invited the parties to offer their arguments on appellant’s motion to dismiss. The parties only addressed whether the court should dismiss counts I and II, possession of a concealed weapon and carrying a loaded weapon, and whether there was evidence that appellant knew the rifle was in the car and was in constructive possession of the weapon.
As the conclusion of the arguments, the court asked appellant’s counsel to clarify whether he was moving to dismiss all three counts. Counsel said yes. The court denied the motion to dismiss without comment as to counts I and II. The court then addressed count III, possession of live ammunition by a minor. The court said that while it was researching the other offenses, it came across cases which explained that a minor had to be in possession of “live” ammunition to violate section 12101, subdivision (b). The court further stated there was no evidence the ammunition in the rifle’s magazine was “live.”
The prosecutor objected and explained that appellant’s counsel stipulated during Officer Edwards’s testimony that there were live rounds in the rifle’s magazine. Appellant’s counsel disagreed as to the nature of the stipulation.
The court stated that appellant’s counsel only stipulated the rifle was loaded, and about the number of rounds in the magazine, and he never stipulated the rounds were live. The prosecutor complained that he was going to address the existence of live rounds during Edwards’s testimony, but he stopped when appellant’s counsel interjected that he would stipulate the ammunition was live.
The prosecutor moved to reopen his case and recall Edwards. The court denied the prosecutor’s motion to reopen and explained:
“THE COURT: I could grant your motion to reopen on grounds that you were caused to justifiably rely upon the stipulation, but I never heard ‘live.’ And I am not, for that discreet [sic] issue, inclined, given the custodial status of [the appellant], to grant that motion. [¶ ] So I, on my own motion, would grant a motion to dismiss Count Three for failure of proof as to the status of life ammunition.” (Italics added.)
The court then invited appellant to begin the defense case. Appellant’s counsel recalled Officer Edwards, and advised the court that Edwards was present and ready to testify. The court replied:
“Counsel, I didn’t know that [Edwards] was here and I thought we might have to continue this hearing and keep [appellant] in custody unnecessarily, so in case there was a not true finding. If [Edwards] is here, I might allow [the prosecutor] to reopen on the issue of the live ammunition.”
Appellant’s counsel objected because the prosecution’s case was closed.
Officer Edwards returned to the stand and appellant’s counsel questioned him about whether the rifle could have been completely concealed under the front seat. The prosecutor then asked the court whether it had ruled on his motion to reopen as to whether there was live ammunition in the magazine. The court replied:
“Based upon the officer’s presence here today, the offering of the stipulation in multiple fashions, and the hurried efforts of the other day, late in the day, the Court would allow you to reopen on the issue the Court addressed.”
Thereafter, in response to the prosecutor’s questions, Officer Edwards testified a magazine was inserted into the rifle, and the magazine was loaded with live ammunition that had not been fired.
The minute order for May 13, 2010, states that the court denied appellant’s motion to dismiss, and it found counts I, II, and III to be true. There are no orders in the record or notations in the minute order which indicate the court granted the motion to dismiss as to count III.
B. Double jeopardy and interim and final orders
Appellant contends that once the court granted his motion to dismiss count III, it was barred from allowing the prosecution to reopen to prove the ammunition was live, and the court’s decision to “revive” that count violated the constitutional prohibition against double jeopardy.
“In proceedings before the juvenile court juveniles are entitled to constitutional protections against twice being placed in jeopardy for the same offense. [Citations.]” (Richard M. v. Superior Court (1971) 4 Cal.3d 370, 375 (Richard M.).) “Jeopardy attaches in a juvenile delinquency proceeding ‘when the first witness is sworn at the adjudicatory phase of the jurisdictional hearing.’ [Citation.] Thereafter, a juvenile cannot be retried unless there is a mistrial. [Citation.]” (In re Pedro C. (1989) 215 Cal.App.3d 174, 180.)
Appellant’s double jeopardy arguments are based on the principle that “[o]nce a judgment has been rendered in a criminal action the trial judge is without power or authority to change or modify or correct the judgment except for purely clerical errors. This is true even though a judge may have forgotten or overlooked some significant factor. [Citations.]” (People v. Garcia (1985) 166 Cal.App.3d 1056, 1067.) “If a trial court rules the evidence is insufficient as a matter of law, then the ruling bars retrial even if it is patently erroneous or the court has no statutory authority to make it. [Citations.]” (People v. Hatch (2000) 22 Cal.4th 260, 270-271.) Indeed, it is recognized the dismissal of an allegation in a juvenile court hearing “on the basis of insufficient evidence should have the same effect as an acquittal for the purpose of double jeopardy analysis [citation].” (In re Anthony H. (1982) 138 Cal.App.3d 159, 164 (Anthony H.).)
However, the California Supreme Court has explained that “ ‘[t]here is little debate that in a criminal cause the court generally has the [inherent] authority to correct its own prejudgment errors.’ [Citation.] ‘ “In criminal cases, there are few limits on a court’s [inherent] power to reconsider interim rulings....”... [¶] This rule is founded on our preference for justice over the rigid adherence to procedure. “A court could not operate successfully under the requirement of infallibility in its interim rulings. Miscarriage of justice results where a court is unable to correct its own perceived legal errors, particularly in criminal cases where life, liberty, and public protection are at stake. Such a rule would be ‘ “ ‘... a serious impediment to a fair and speedy disposition of causes....” ’ ” ’ [Citation.]” (People v. Konow (2004) 32 Cal.4th 995, 1020, quoting In re Alberto (2002) 102 Cal.App.4th 421, 426-427, italics added.)
The question in this case is whether the court actually dismissed count III for insufficient evidence and implicated double jeopardy, or the court’s findings on count III amounted to an interim ruling subject to correction.
We find the facts and circumstances in Anthony H., supra, 138 Cal.App.3d 159 address this precise point. In that case, the juvenile court conducted a hearing on February 22, 1982, and heard the minor’s motion to dismiss a robbery charge for insufficient evidence. The court quickly announced the motion was being granted and dismissed the robbery count without asking for argument from the prosecutor. As the hearing continued, the court considered a motion to dismiss the grand theft charge, and the prosecutor argued the evidence was stronger for robbery than grand theft. The court realized that it might have made a mistake when it granted the motion to dismiss the robbery charge. The court stated it was willing to “ ‘undo’ ” its error because it did not give the prosecutor the chance to argue about the robbery charge “ ‘when I quickly ruled against him.’ ” (Id. at pp. 162-163.) The court decided to continue the matter to the next scheduled hearing, and stated that it was “ ‘setting aside’ ” its earlier “ ‘response’ ” to the minor’s motion to dismiss. (Id. at p. 163.) The court’s minute order for that day stated that it had granted the motion to dismiss robbery for insufficient evidence, but the minute order for that day’s hearing was not immediately filed. (Id. at p. 164.)
The court conducted the continued hearing on February 25, 1982, and stated it had inappropriately granted the minor’s motion to dismiss the robbery charge, and “ ‘I realize I made an error, backed up, set that aside, and we are here today to hear further with respect to the questions of law.’ ” (Anthony H., supra, 138 Cal.App.3d at p. 163, italics in original.) After hearing further argument, the court denied the motion to dismiss the robbery charge, and overruled the minor’s double jeopardy objections. (Id. at p. 164.) The minute order for the February 25, 1982, hearing stated that the court had set aside its “previous dismissal of the robbery, reinstated this count and found the allegations to be true.” (Ibid.) The minute orders for both February 22 and 25, 1982, were simultaneously filed and entered by the clerk on March 5, 1982. (Ibid.)
On appeal, Anthony H. held the “crucial question” about the minor’s double jeopardy arguments was “whether the robbery allegation was dismissed in an effective court order.” (Anthony H., supra, 138 Cal.App.3d at p. 164.) Anthony H. held that “[a] written order of dismissal must ‘be entered in the clerk’s register and is effective for all purposes when so entered, ’ ” pursuant to Code of Civil Procedure section 581d. (Ibid.) Anthony H. also relied upon Code of Civil Procedure section 664, which provides that in a court trial, judgment must be entered by the clerk in conformity with the decision of the court, and “ ‘[i]n no case is a judgment effectual for any purpose until entered.’ ” (Anthony H., supra, at p. 164, italics added in original.)
“ ‘The purpose of the rule is clear: It would be manifestly undesirable to allow judgments to be used or enforced without any official evidence of their terms. The rule goes further, however; until entry, the judge can vacate or change his previously rendered judgment as he sees fit. [Citations.]’ [Citation.]” (Id. at p. 165, italics added in original.)
Anthony H. held the minute orders for February 22 and 25, 1982, became effective at the same time, even though they were incompatible, because they were simultaneously entered on March 5, 1982. (Anthony H., supra, 138 Cal.App.3d at p. 165.) Anthony H. further held the juvenile court intended the first order, which dismissed the robbery count, to be “only a tentative and interim ruling, ” and the first order was “effectively vacated in open court” when the court stated it was setting aside the order of dismissal. (Ibid.) The juvenile court “made this position clear at the continued hearing on February 25, before the alleged order of dismissal would have become effective, i.e., on March 5 when it was entered by the clerk.” (Ibid., italics added.) Anthony H. concluded that the February 25, 1982, order, was the effective order, “there was no effective order dismissing the robbery count, ” and the minor’s double jeopardy rights were not violated. (Ibid.)
“Anthony was subjected to only one proceeding. The state had presented its case and was not given an opportunity to reopen its case or otherwise supply missing evidence necessary to make a prima facie case. This jurisdictional hearing was before only one judge sitting as factfinder, and Anthony was not subjected to the embarrassment, expense, or ordeal of a second trial. Anthony’s constitutional right not to be placed in double jeopardy was not infringed.” (Id. at p. 166.)
In re Stephen P. (1983) 145 Cal.App.3d 123 (Stephen P.) (disapproved on other grounds in People v. Cuevas (1995) 12 Cal.4th 252, 275, fn. 5) also rejected a minor’s double jeopardy arguments. At the conclusion of the adjudication hearing, the juvenile court found one count true and dismissed the second count. The prosecutor immediately advised the court that it had misstated the statutory definitions and elements for the offenses. The court read the pertinent code sections and realized that it had committed an error. The court decided to take the matter under submission and determine whether it could reverse its ruling and correct the error. The minute order stated the court had reconsidered its earlier ruling, erroneously dismissed one count, and took the matter under submission to determine whether it could modify or correct the judgment. (Id. at pp. 133-134.)
At the continued hearing, the court stated it had made a mistake of law as to the elements of the offenses, and intended to change its findings as to count II “ ‘consistent with its factual findings.’ ” The court further stated that “under the circumstances it had the power to correct its judicial mistake promptly and did so, ” and amended the order to show that there was sufficient evidence for count II. (Stephen P., supra, 145 Cal.App.3d at p. 134.)
Stephen P. relied on Anthony H., and held the juvenile court’s ruling did not violate double jeopardy. (Stephen P., supra, 145 Cal.App.3d at p. 134.)
“It was only minutes after the court here made its initial finding, and long before the minute order was entered that it announced it had made an error it intended to correct; and its determination to change its ruling was made before entry of the finding in the minutes, the only issue reserved for a later day being the power of the court to correct its error. Moreover, the minor had not been placed in any restraint of his ‘sentence, ’ indeed, at that time no disposition had been indicated. [Citation.] Finally, inasmuch as the minor was subjected to only one proceeding, all of the evidence had been presented and the hearing had been concluded, the People did not nor did they ask to reopen their case or otherwise supply additional evidence, the hearing was before only one judge sitting as fact finder, and the minor was not subjected to the embarrassment, expense or ordeal of a second trial, we can only conclude that his constitutional right not to be placed in double jeopardy was not infringed. [Citation.]” (Id. at pp. 134-135, italics added.)
C. Analysis
As applied to the instant case, appellant argues that Anthony H. was wrongly decided and the juvenile court violated double jeopardy when it “revived” count III. We first note that during the course of Officer Edwards’s testimony, the prosecutor was clearly about to ask him whether the ammunition in the rifle’s magazine was live, but he was interrupted when appellant’s counsel offered to stipulate about the ammunition. More importantly, appellant’s counsel stated that he would stipulate the rifle’s magazine was loaded with “live.22 caliber ammunition, ” and the prosecutor agreed to the stipulation. For some reason, however, the court only stated that the parties had stipulated that “the magazine was loaded with eight rounds, ” and failed to repeat the parties’ agreement that the ammunition was live.
In any event, the specific facts and circumstances of the subsequent proceedings in this case are nearly identical to the situations described in Anthony H. and Stephen P., and we agree with the holdings in those cases. While appellant made the motion to dismiss during the May 11, 2010, hearing, the court never made any rulings that day and continued the matter. At the continued hearing on May 13, 2010, the court’s initial statement that it was going to dismiss count III must be construed as only a tentative and interim ruling, which it vacated almost immediately when the prosecutor pointed out that the court’s acceptance of appellant’s stipulation prevented the prosecutor from developing the particular factual point that the ammunition was live. The juvenile court never entered an effective court order in the minutes to dismiss count III, and a minute order was never filed which stated that count III had been dismissed for insufficient evidence. The court realized its mistake almost immediately, and the matter was continued for only a few minutes as the court reconsidered the evidence. Appellant was subjected to only one proceeding, and the hearing was before only one judge sitting as fact finder.
We acknowledge that in contrast to Stephen P., the prosecutor in this case requested to reopen and the court allowed the prosecutor to introduce additional evidence by questioning Officer Edwards about whether the ammunition was live. (Stephen P., supra, 145 Cal.App.3d at pp. 134-135.) As our review of the record shows, however, the court could have reconsidered its interim ruling on count III by simply reviewing the record, without requiring the prosecutor to reopen. Appellant’s counsel clearly stated that he would stipulate the ammunition in the rifle’s magazine was “live, ” and the court failed to correctly recite the stipulation at that time. Thus, there was no need for the court to permit the prosecutor to reopen on the issue of whether the ammunition was live.
Appellant asserts the instant situation is much closer to the facts in Mouser v. Superior Court (1982) 136 Cal.App.3d 110 (Mouser), which found that an order of acquittal implicated principles of double jeopardy. The facts and circumstances of Mouser, however, are clearly dissimilar to the instant case. In Mouser, three codefendants moved for acquittal when the prosecution rested during a jury trial. The court granted the motion for two defendants and denied it as to the third defendant. The remaining defendant then moved for a mistrial on other grounds. The court denied the mistrial motion. The prosecutor advised the court that he believed the motion had some merit. The court then granted the motion as to the remaining defendant. The court dismissed the jury and stated there was insufficient evidence to give the case to the jury. After a lunch recess, the court reconsidered the third defendant’s motions and decided to correct the record, strike the granting of the motion for acquittal, and grant the motion for mistrial instead. The court further stated that it would reset the matter for a new trial, and rejected the defendant’s double jeopardy objections. (Id. at pp. 112-113.)
Mouser held that the trial court’s decision to grant the motion for acquittal and dismiss the jury amounted to a legal finding of insufficient evidence on the charged offenses. Mouser held principles of double jeopardy barred another prosecution against defendant for the same crimes. (Mouser, supra, 136 Cal.App.3d at pp. 114-115; cf. Richard M., supra, 4 Cal.3d 377-378 [juvenile court could not reconsider order several days after it granted motion to dismiss for insufficient evidence].)
We find the facts and circumstances of the court’s interim ruling in this case are vastly different than those addressed Mouser, since the court in that case granted a motion for acquittal based on insufficient evidence and dismissed the jury. (Mouser, supra, 136 Cal.App.3d at pp. 114-115.) In contrast, the juvenile court in this case never entered an effective order of dismissal and vacated the interim order almost immediately. We conclude the court did not violate the constitutional prohibition against double jeopardy when it denied appellant’s motion to dismiss count III.
III. The court’s findings on counts II and III
We have already concluded the juvenile court’s true finding on count I, possession of a concealed firearm by a minor, must be stricken for insufficient evidence. We now move on to appellant’s next contentions as they apply to the remaining offenses: count II, carrying a loaded firearm, and count III, possession of live ammunition by a minor.
Appellant contends the juvenile court relied on the wrong legal standard and reduced the prosecution’s burden of proof when it found counts II and III true, and that this court must strike the true findings on those counts because of the juvenile court’s legal error. As we will explain, the record refutes this contention.
A. Background
After both sides rested at the contested jurisdictional hearing, the parties addressed whether appellant knew the rifle was in the car, and if he had actual or constructive possession of the rifle and ammunition. The court reviewed the elements of the three charged offenses, and discussed the requirements for actual and constructive possession. The court noted that knowledge of the weapon’s presence could be proved through circumstantial evidence. In doing so, the court cited to a series of cases, acknowledged those cases had vastly different factual scenarios, and explained:
The court cited to People v. Burnett (1967) 251 Cal.App.2d 651; People v. Cordova (1979) 97 Cal.App.3d 667; People v. Harrison (1969) 1 Cal.App.3d 115; and People v. Pena (1999) 74 Cal.App.4th 1078, and noted that Pena’s discussion of actual and constructive possession was “helpful.”
“The Court realizes that any of these cases, for Appellate purposes, that any of these cases can be parched [sic] and facts distinguished from here. The purpose of the citation is to indicate, for the record, that circumstantial evidence is enough to prove for substantial evidence purposes that knowledge and possession components even when there has been flat denial by the [appellant].” (Italics added.)
The court found the circumstantial evidence was “overwhelming” to support all the counts and “suggest that [appellant] was, given, again, the 20 to 25 minutes, his physical proximity, no evidence it was moved, his getting in and out of the vehicle, the opportunities for lighting, the fact that the vehicle did not stop, initially, when engaged by the officers, and the like. [¶] And clearly, when it is next to you, somewhere, anywhere within the passenger compartment of the vehicle, there is the opportunity to exercise dominion and control over it both for possession counts and carrying counts.”
B. Analysis
Appellant cites to the court’s findings, as set forth ante, and insists the court relied on the incorrect legal standards for possession and carrying a firearm, and reduced the prosecution’s burden of proof, because it relied on a series of cases which were inapplicable to the facts of this case and applied a strict liability standard to appellant’s mere presence in a vehicle which contained a weapon.
First, with respect to any alleged error in the court’s analysis of the legal issues, “ ‘[a] decision right in result will not be reversed even though the reason stated is wrong.’ [Citation.]” (People v. Evans (1967) 249 Cal.App.2d 254, 257; People v. Singh (1995) 37 Cal.App.4th 1343, 1381; People v. Armstrong (1991) 232 Cal.App.3d 228, 241.) “It is axiomatic that we review the trial court’s rulings and not its reasoning. [Citations.]” (People v. Mason (1991) 52 Cal.3d 909, 944.) As we will discuss in section IV and V, post, the court’s findings on counts II and III are legally correct and supported by substantial evidence.
Second, the record refutes appellant’s assertion that the court found the charged offenses true based on incorrect legal standards contained in certain cases. As we have explained, the court cited to those cases for the point that circumstantial evidence could be relied upon to prove carrying and/or constructive possession of a weapon, along with dominion and control. In doing so, the court specifically noted that the cases involved different factual scenarios. More importantly, the court made specific factual and legal findings relevant to the particular circumstances of this case, rejected the credibility of appellant’s hearing testimony, and found appellant carried a loaded firearm and possessed live ammunition.
IV. Substantial evidence to support count III
Appellant next contends there is insufficient evidence to support the juvenile court’s true findings for count II, carrying a loaded firearm (§ 12031, subd. (a)(1)); and count III, misdemeanor possession of live ammunition by a minor (§ 12101, subd. (b)(1)).
As we have already explained, in reviewing the court’s true findings on a juvenile petition, we apply the same standard of review that is used to determine the sufficiency of the evidence for criminal convictions. (In re Brandon G., supra, 160 Cal.App.4th 1076, 1079-1080; In re Ryan N., supra, 92 Cal.App.4th 1359, 1371.) “The standard of appellate review is the same in cases in which the People rely primarily on circumstantial evidence. [Citation.] Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also be reasonably reconciled with a contrary finding does not warrant a reversal of the judgment.” ’ [Citations.] ‘Circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ [Citation.]” (People v. Bean (1988) 46 Cal.3d 919, 932-933.)
With these standards in mind, we first address whether there is substantial evidence to support the court’s findings as to count III, possession of live ammunition by a minor.
A. Actual and constructive possession
In count III, the court found true the allegation that appellant violated section 12101, subdivision (b)(1), which states: “A minor shall not possess live ammunition.”
“Actual or constructive possession is the right to exercise dominion and control over the contraband or the right to exercise dominion and control over the place where it is found. [Citation.]” (People v. Rushing (1989) 209 Cal.App.3d 618, 622 (Rushing.)
“Actual possession means the object is in the defendant’s immediate possession or control. A defendant has actual possession when he himself has the [contraband].” (In re Daniel G. (2004) 120 Cal.App.4th 824, 831 (Daniel G.).)
“Constructive possession means the object is not in the defendant’s physical possession, but the defendant knowingly exercises control or the right to control the object. [Citation.]” (Daniel G., supra, 120 Cal.App.4th 824, 831, italics added.) A person “has constructive possession when the [contraband], while not in his actual possession, is nonetheless under his dominion and control, either directly or through others. [Citations.]” (People v. Pena, supra, 74 Cal.App.4th 1078, 1083-1084.)
Exclusive possession is not necessary, and a defendant “does not avoid conviction if his right to exercise dominion and control over the place where the contraband was located is shared with others. [Citations.]” (Rushing, supra, 209 Cal.App.3d at p. 622.) Two persons can jointly possess a firearm. (See, e.g., In re Jorge M. (2000) 23 Cal.4th 866, 888; cf. People v. Williams (1971) 5 Cal.3d 211, 215.) “Possession of a weapon may be proven circumstantially, and possession for even a limited time and purpose may be sufficient. [Citation.]” (Daniel G., supra, 120 Cal.App.4th at p. 831.)
“ ‘Possession may be imputed when the contraband is found in a location which is immediately and exclusively accessible to the accused and subject to his dominion and control’ [citation] or which is subject to the joint dominion and control of the accused and another [citation].” (People v. Francis (1969) 71 Cal.2d 66, 71, overruled on other grounds as explained in People v. Murphy (2007) 154 Cal.App.4th 979, 983-984.) “Dominion and control are essentials of possession, and they cannot be inferred from mere presence or access. Something more must be shown to support inferring of these elements. Of course, the necessary additional circumstances may, in some fact contexts, be rather slight. [Citations.]” (People v. Zyduck (1969) 270 Cal.App.2d 334, 336 [mere presence of passenger in car with stolen chain saw on rear seat not enough to show possession].) Dominion and control may be inferred when the contraband is discovered in an accused’s residence, automobile or personal effects. (People v. Jenkins (1979) 91 Cal.App.3d 579, 584.)
B. Analysis
There is overwhelming evidence to support the court’s finding that appellant violated section 12101, subdivision (b)(1), that he was a minor in possession of live ammunition. Officer Edwards testified a magazine was attached to the rifle, and the magazine was loaded with eight.22-caliber live rounds. Edwards further testified that appellant was sitting in the middle of the back seat, over the center hump, and the rifle was propped against the center hump, with the butt stock against the bottom part of the bench seat. Edwards testified that based on appellant’s position in the center of the back seat, the rifle would have been “[s]itting right next to his right leg, ” and appellant could have physically touched the rifle.
The circumstantial evidence establishes that appellant had knowledge of and constructive possession of the rifle and the magazine of live ammunition attached to the rifle. This is not a situation where a weapon or other contraband had been hidden somewhere in a vehicle, or there was a question as to whether appellant had dominion and control over the contraband. Officer Edwards saw the rifle in plain view immediately adjacent to where appellant had been sitting in the back seat. While the rifle would have been between appellant and M.F., exclusive possession is not necessary, and appellant and M.F. could jointly possess the contraband. Appellant was not the driver of the car, but he still exercised dominion and control over the rifle and magazine because of the unique circumstances that the rifle and attached magazine were immediately adjacent to appellant’s place in the back seat.
Appellant cites to other evidence raising doubts concerning dominion and control—particularly his statements at the scene and his hearing testimony that he initially got into the car through the left rear door and never saw a rifle; he again used the left rear door to get in and out of the car when they stopped at the convenience store, and never saw the rifle; he heard something hit the floorboard when M.F. kept lowering his hands during the initial phases of the traffic stop; and he did not know the rifle was in the car until M.F. got out of the right door during the traffic stop. Appellant further argues that while Officer Edwards observed the rifle in a particular location after the traffic stop, there is no evidence as to the location of that rifle prior to that time.
Appellant asks this court to draw inferences from the evidence which are different than those drawn by the juvenile court acting as the fact finder. However, the juvenile court found implausible appellant’s account of that evening and his claim that he never knew the rifle was in the car. There is substantial evidence to support the juvenile court’s factual and credibility findings on these points.
“[I]n an appeal from a juvenile criminal as in any other criminal appeal, we are in no position to weigh any conflicts or disputes in the evidence. The juvenile trial court was the trier of fact and the sole judge of the credibility of witnesses; we are not. Even if different inferences can reasonably be drawn from the evidence, we cannot substitute our own inferences or deductions for those of the trial court. We must consider all of the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference from the evidence tending to establish the correctness of the trial court’s decision, and resolving conflicts in support of the trial court’s decision. [Citations.] In short, in juvenile cases, as in other areas of the law, the power of an appellate court asked to assess the sufficiency of the evidence begins and ends with a determination of whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support the decision of the trier of fact. [Citations.]” (In re Ryan N., supra, 92 Cal.App.4th 1359, 1373, first italics added, second italics in original.)
The juvenile court clearly rejected the credibility of appellant’s claim that he never saw the rifle until he stepped out of the car, and the court’s factual finding is supported by substantial evidence.
V. Substantial evidence to support count II
Appellant contends there is insufficient evidence to support the finding that he violated section 12031, subdivision (a)(1), by carrying a loaded firearm. Appellant asserts that “carrying” a firearm is different than actual or constructive possession of the weapon.
A. “Carrying” and “possession” of a firearm
Section 12031, subdivision (a)(1) states:
“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 or in any public place or on any public street in a prohibited area of unincorporated territory.” (Italics added.)
Section 12031 does not require proof that the defendant knew the firearm was loaded. (In re Ramon A. (1995) 40 Cal.App.4th 935, 942; People v. Dillard (1984) 154 Cal.App.3d 261, 266.)
In contrast to section 12101, subdivisions (a) and (b), which prohibit “possession” of a concealed firearm and live ammunition, section 12031, subdivision (a)(1) prohibits a person from “carrying” a loaded firearm. It has been observed that “ ‘[c]arrying’ and ‘having’ are not synonymous. ‘Having’ relates to an ‘act or state of possessing, ’... while ‘carrying’ refers to the ‘act or instance of carrying’ and the verb ‘carry’ in relevant definition connotes ‘to convey, or transport...;’ and ‘to transfer from one place... to another.’ [Citation.]” (People v. Overturf (1976) 64 Cal.App.3d Supp. 1, 6.) “Speaking generally in the context of statutes concerned with firearms, ‘carry’ or ‘carrying’ has been said to be used in the sense of holding or bearing arms, ” while “ ‘having’ ” has been interpreted as “ ‘owning, possessing, or keeping’.…” (Ibid.) The word “ ‘carry’ ” has been defined “to mean: ‘To have upon or about one’s person; hold. To hold or bear; to bear. To act as a bearer.’ Used in the active transitive sense, the word ‘carry’ has been said to connote transportation [citation], but when used in the general sense of carrying arms or carrying weapons the word means ‘going armed, wearing weapons.’ [Citations.]” (People v. Smith (1946) 72 Cal.App.2d Supp. 875, 878 (Smith).) The verb “carry” has also been defined as “ ‘to hold, wear, or have upon one’s person. [Citation.]’ ” (People v. Melton (1988) 206 Cal.App.3d 580, 592.)
In People v. Arzate (2003) 114 Cal.App.4th 390, the court observed that the offense of carrying a concealed firearm in a vehicle (§ 12025, subd. (a)(1)) “does not require any action on the defendant’s part beyond merely having the gun available for use, ...” (People v. Arzate, supra, at p. 400, italics in original.)
In Muscarello v. United States (1998) 524 U.S. 125, the United States Supreme Court addressed whether the phrase “ ‘carries a firearm, ’ ” as used in the federal statute mandating imposition of a prison term upon a person who used or carried a firearm during a drug trafficking crime, was limited to the carrying of firearms on the person. The court held that it also applied to a person who knowingly possessed and conveyed a firearm in a vehicle. (Id. at pp. 126-127.) In doing so, the court drew a distinction between “carry” and “transport, ” and reasoned that “ ‘[c]arry implies personal agency and some degree of possession..., ” whereas “ ‘transport’ is broader than the word ‘carry, ’ ” and encompasses other activity. (Id. at p. 134, italics added.)
There are several cases which are illustrative of the conduct which constitutes “carrying” a firearm. In People v. Taylor (1984) 151 Cal.App.3d 432 (Taylor), the defendant was driving a stolen car and led officers on a chase when they tried to pull him over. As the car chase began, a loaded weapon was thrown out of the passenger side of the car. Taylor stated that the defendant was convicted of “possession of a loaded firearm in public, ” in violation of section 12031, subdivision (a). (Taylor, supra, at p. 434.) However, Taylor also quoted the statute, which defined the offense as occurring when a person “ ‘carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street.…” (Id. at p. 437, fn. 2, italics added.) Taylor held there was substantial circumstantial evidence of the defendant’s constructive possession of the weapon to support his conviction, because “the gun was thrown soon after the chase began and [the defendant’s] driving represented an unequivocal attempt to avoid capture.” (Id. at p. 436.)
In People v. Padilla (2002) 98 Cal.App.4th 127 (Padilla), the defendant was convicted of carrying a concealed firearm by causing a concealable firearm “ ‘to be carried concealed within any vehicle in which he was an occupant, ’ ” in violation of section 12025, subdivision (a)(3). (Id. at p. 133.) The defendant was sitting in the front passenger seat of a vehicle which failed to pull over for a traffic stop. The officer followed the vehicle and watched the defendant make stuffing motions between the two front seats. After the car finally stopped, the officer found a handgun lodged between the driver’s seat and front passenger seat. (Id. at p. 132.) Padilla held the defendant was properly convicted, and that the statute did not require proof that the defendant brought the gun into the car. (Id. at p. 134.) The defendant “caused the gun to be carried concealed in a vehicle in which he was an occupant, by concealing the gun between the seats. His conduct fits the language and purpose of the statute.” (Ibid.)
In People v. Gant (1968) 264 Cal.App.2d 420 (Gant), the court held there was substantial evidence to support the defendant’s conviction for carrying a concealed weapon in a vehicle (§ 12025). The defendant was the driver of the vehicle, there were three passengers, and there was a firearm under the floor mat of the front passenger seat, and another firearm under the dashboard to the right of the glove compartment. (Id. at pp. 422-423.) The court held that “the close proximity and availability” of the stolen gun, hidden under the front passenger floormat along with other property stolen from the same person, indicated the passenger’s knowledge of the gun’s presence. (Id. at p. 424.)
“As to [the defendant], the entire vehicle was under his control inasmuch as he was the driver and took charge when asked by Officer Kinsey concerning the ownership and possession of the car. The Colt.45 was concealed under the dash to the right of the glove compartment and readily accessible to [the defendant]. In addition, [the defendant’s] attempt to avoid the officer by increasing his speed from 90 to 100 miles an hour is indicative of his guilty knowledge of the presence of the stolen weapons. It was reasonable for the trial judge to infer from the above that the vehicle was in the joint possession of [the defendant] and [the passenger] with [defendant] having actual control and direction; that both knew of the presence of the guns; that while neither had exclusive possession of the weapons they were readily available to each. The statute does not require that a defendant have the exclusive possession and control of the firearm. [Citation.]” (Gant, supra, at p. 425, fn. omitted.)
In Smith, supra, 72 Cal.App.2d Supp. 875, the defendant was convicted of carrying a concealed weapon in a vehicle. The defendant was arrested in a hotel room and asked for the location of his car. He led officers to an adjacent parking lot and presented the keys to unlock the vehicle. The officers found a revolver inside the closed glove compartment. (Id. at pp. 876-877.) Smith acknowledged the absence of direct evidence that the car “was or had been moving, ” or that the revolver had been “carried within such vehicle” in violation of statute. (Id. at p. 878, italics in original.)
Smith noted the Legislature had extended the prohibition of carrying a concealed weapon “to ‘within any vehicle’ as well as ‘upon his person.’ We see no reason why the same general interpretation of the meaning of the word ‘carry’ as applied to the person should not equally apply to a vehicle. By including vehicles in the manner and place as contained in such act, the Legislature must have intended to likewise make it unlawful for any person to bear or hold about such vehicle any concealed weapon of the designated class in any way or fashion so connected with such vehicle that the locomotion of it would carry with it the weapon as concealed. [Citation.]” (Smith, supra, at p. 879.)
Smith held there was circumstantial evidence that the revolver belonged to the defendant, he concealed it in the glove box, and it was carried in his vehicle. Smith reached this conclusion based on the inference that the car “had been driven to and parked there by defendant, ” since the vehicle was registered to the defendant, it was parked in the hotel’s parking lot, and he had the keys which unlocked it. (Smith, supra, 72 Cal.App.2d Supp. at p. 879.)
B. Analysis
As these cases illustrate, carrying and possessing a firearm may not appear to be synonymous, but a conviction for carrying a firearm may be supported by circumstantial evidence of constructive possession while in a vehicle. As applied to the instant case, there is clearly circumstantial evidence that appellant was carrying a firearm in a vehicle, based on his constructive possession of the rifle. As discussed in section IV, ante, appellant was sitting in the center of the back seat, over the center hump, and the rifle was propped up against the center hump and against the bottom of the back seat cushion. As noted by the juvenile court, appellant testified he had been in the car for 20 to 25 minutes, and admitted that the parking lot of the convenience store was well lit. Based on the location of the rifle relative to appellant’s position in the back seat, there is substantial evidence of appellant’s knowledge of the rifle’s presence and his dominion and control over the weapon. As we have already explained, appellant may not have been the driver of the vehicle, but the circumstantial evidence indicates he had dominion and control over the rifle since it was propped up against the area where he had been sitting.
While appellant insisted that he never knew the rifle was in the car, the juvenile court clearly deemed appellant’s account implausible, and we find that the court’s factual and credibility findings are supported by substantial evidence.
VI. The court’s finding that count II was a felony
The offense of carrying a loaded firearm in violation of section 12031, subdivision (a)(1) may be treated as either a felony or misdemeanor pursuant to specific statutory criteria. (§ 12031, subd. (b).) At the disposition hearing, the court treated appellant’s violation of count II as a felony violation of the statute.
Appellant asserts the court improperly found count II was a felony by relying on the statutory factor that he had a prior felony conviction, whereas he only had prior juvenile adjudications deemed to be felonies.
Respondent “agrees that the prior [juvenile] felony adjudication did not qualify as a ‘conviction’ under section 12031.” However, respondent argues there was other evidence to satisfy the statutory criteria to treat count II as a felony.
We will review the applicable legal principles and the record, and find that the matter must be remanded for the court to exercise its discretion.
A. The juvenile court’s required findings
Welfare and Institutions Code section 702 provides in pertinent part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” This section requires an explicit declaration by the juvenile court as to whether an offense is a felony or misdemeanor. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204 (Manzy W.).) A juvenile petition’s specification that a wobbler offense is charged as a felony is insufficient to show the court made the decision and finding required by Welfare and Institutions Code section 702. In addition, the court’s imposition of a felony-length term does not constitute an implied declaration. (Manzy W., supra, at p. 1207.) A remand for the court to make a formal declaration is not automatic, and “speaking generally, the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit.” (Id. at p. 1209.)
However, a signed “Findings and Order” document, which declares the juvenile offense to be a felony, has been held to “adequately compl[y] with both the letter and the spirit of [Welfare and Institutions Code] section 702.” (In re Michael S. (1983) 141 Cal.App.3d 814, 818 [order stated “ ‘Offense is declared to be a felony’ ”]; In re Robert V. (1982) 132 Cal.App.3d 815, 823 (Robert V.) [reference in “ ‘Findings and Order’ ” signed by the court to adjudicated offense as “ ‘VC10851 felony’ ” held in compliance with section 702 in that it was an “explicit finding” of felony status]; see also Manzy W., supra, 14 Cal.4th at pp. 1207-1208, & fn. 6, and In re Kenneth H. (1983) 33 Cal.3d 616, 620, fn. 6, [both citing Robert V. with apparent approval].)
B. Section 12031
As applicable to this case, section 12031, subdivision (a)(1) defines the offense of carrying a loaded firearm. Section 12031, subdivisions (a)(2)(A) through (a)(2)(G), define the circumstances under which the offense is punishable either as a felony or misdemeanor.
“(A) Where the person previously has been convicted of any felony, or of any crime made punishable by this chapter, as a felony.
“(B) Where the firearm is stolen and the person knew or had reasonable cause to believe that it was stolen, as a felony.
“(C) Where the person is an active participant in a criminal street gang, as defined in subdivision (a) of Section 186.22, under the Street Terrorism Enforcement and Prevention Act (Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1), as a felony.
“(D) Where the person is not in lawful possession of the firearm, as defined in this section, or is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code, as a felony.
“(E) Where the person has been convicted of a crime against a person or property, or of a narcotics or dangerous drug violation, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.
“(F) Where the person is not listed with the Department of Justice pursuant to Section 11106, as the registered owner of the handgun, by imprisonment in the state prison, or by imprisonment in a county jail not to exceed one year, or by a fine not to exceed one thousand dollars ($1,000), or both that fine and imprisonment.
“(G) In all cases other than those specified in subparagraphs (A) to (F), inclusive, as a misdemeanor, punishable by imprisonment in a county jail not to exceed one year, by a fine not to exceed one thousand dollars ($1,000), or by both that imprisonment and fine.” (§ 12031, subds. (a)(2)(A)-(a)(2)(G), italics added.)
C. The juvenile court’s findings in this case
Appellant’s prior juvenile adjudications were based on his admissions that he violated section 496, receiving stolen property, and Vehicle Code section 10851, taking or driving a vehicle without permission. The juvenile court treated both offenses as felonies and placed appellant on deferred entry of judgment.
The juvenile petition filed in the instant case alleged in count II that appellant committed a felony violation of section 12031, subdivision (a)(1), carrying a loaded firearm, and the court found that allegation true. The probation report did not expressly address whether count II should be treated as a felony or a misdemeanor, but simply stated that a felony violation of section 12031, subdivision (a) had been found true.
At the disposition hearing in the instant case, the court asked appellant’s counsel if he had any arguments about the calculation of appellant’s maximum possible term. Counsel replied that he realized count II “would be a felony” since appellant “has suffered [a] felony conviction, felony adjudication in terms of Juvenile Court before.…” The court did not make any comments about counsel’s statements.
The court never made any express findings as to whether the current offenses were felonies or misdemeanors. However, the court’s signed findings and orders for the disposition hearing include a section which states: “The following counts may be considered a misdemeanor or felony.” There are check-boxes for the court to indicate that it had found the minor’s violations of the specific offenses as either felonies or misdemeanors. The court checked the boxes indicating that it found all the offenses were felonies except for count III, misdemeanor possession of live ammunition by a minor.
D. Analysis
In the instant case, the juvenile court’s signed “findings and orders” declared that count II was a felony. While such findings may be sufficient under Manzy W., appellant argues there is no evidence to support the court’s findings based on the current record, and the juvenile court never expressly stated why it treated count II as a felony.
Appellant contends, and respondent agrees, that the court could not have treated count II as a felony based on the factor set forth in section 12031, subdivision (a)(2)(A), that appellant had previously “been convicted of any felony, or of any crime made punishable by this chapter, as a felony.” (Italics added.) Neither clause of this subdivision applies in this case. Appellant’s prior juvenile adjudications were for theft and receiving stolen property, they did not involve firearms, and they were not “punishable” within the same “chapter” as section 12031.
While appellant’s counsel mentioned the existence of the prior juvenile adjudications, the court never expressly stated that it was going to rely on appellant’s prior juvenile adjudications as the reason to treat count II as a felony. In any event, as respondent concedes, “ ‘adjudications of juvenile wrongdoing are not “criminal convictions.” ’ [Citation.]” (In re Joseph B. (1983) 34 Cal.3d 952, 955; In re Damien V. (2008) 163 Cal.App.4th 16, 21.) “A juvenile’s delinquency may consist of felony activity, but an adjudication as such is not a felony conviction. [Citations.]” (People v. Sanchez (1985) 170 Cal.App.3d 216, 218, italics in original.) The term “conviction” is a “term[] of art usually associated with adult proceedings.” (In re Derrick B. (2006) 39 Cal.4th 535, 540; cf. People v. Garcia (1999) 21 Cal.4th 1, 3, 5-10 [prior juvenile adjudication may be treated as a prior strike conviction pursuant to provisions of three strikes law]; People v. Nguyen (2009) 46 Cal.4th 1007, 1010-1011 [use of prior juvenile adjudication as prior strike conviction does not violate minor’s constitutional rights]; Manzy W., supra, 14 Cal.4th at p. 1209 [juvenile court’s determination of whether offense is felony or misdemeanor has important ramifications as to whether prior juvenile adjudication is treated as a strike]; In re Damien V., supra, 163 Cal.App.4th at p. 26 [section 186.22 applies to juvenile offenders based on statutory provisions].)
Although a prior juvenile adjudication may be treated as a prior strike conviction under the Three Strikes law (§ 667, subd. (d)(3); People v. Nguyen, supra, 46 Cal.4th 1007, 1019-1020; People v. Garcia, supra, 21 Cal.4th at p. 13), the instant case does not implicate Three Strikes. (See People v. Fowler (1999) 72 Cal.App.4th 581, 586.) Section 12031 does not include juvenile adjudications within the definition of felony convictions. Therefore, the court could not have relied on appellant’s prior juvenile adjudication as a prior conviction of “any felony” to treat his current offense as a felony. (§ 12031, subd. (a)(2)(A).)
Respondent suggests there was another statutory factor to support the court’s decision to treat count II as a felony. Section 12031, subdivision (a)(2)(F) provides for the court to treat the offense of carrying a loaded firearm either as a felony or a misdemeanor where the person is not listed as the registered owner of the weapon with the Department of Justice. Respondent cites Officer Edwards’s testimony that he checked the rifle’s serial number and “there were no hits found on it, no ownership found on it” and argues appellant was not the rifle’s registered owner and the court properly treated count II as a felony based on section 12031, subdivision (a)(2)(F).
While this provision might seem applicable to the instant case, the express terms of the statute prove otherwise. Section 12031, subdivision (a)(2)(F) permits the court to treat a violation of section 12031, subdivision (a) as a felony where the person who was carrying the firearm was not listed “as the registered owner of the handgun.” (§ 12031, subd. (a)(2)(F), italics added.) The subdivision does not contain a similar provision as to a “rifle.”
While the court issued signed findings and orders that count II was a felony, and there is sufficient evidence that appellant was not the registered owner of the rifle, these facts are insufficient to trigger the provisions of section 12031, subdivision (a)(2)(F), because the subdivision only allows the court to treat the current offense as a felony if the offender was not the registered owner of a “handgun.”
The record before this court fails to contain any evidence to support the other factors in section 12031, subdivision (a)(2), that would have allowed the juvenile court to treat count II as a felony. This court will strike the juvenile court’s findings that count II is a felony and remand the matter for the court to redetermine appellant’s minimum period of confinement, since the court relied on the felony count II for the subordinate term.
DISPOSITION
Count I is stricken for insufficient evidence. The court’s finding that count II was a felony is stricken to reflect the offense was a misdemeanor. The matter is remanded for the juvenile court to exercise its discretion to determine the minimum term of confinement. In all other respects, the judgment is affirmed.
WE CONCUR: Kane, Acting P.J., Detjen, J.