Andre R., In re

• Decision Date: 21 June 1984
• Citation: 204 Cal.Rptr. 723,158 Cal.App.3d 336
• Court: California Court of Appeals Court of Appeals
• Parties: In re ANDRE R., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Plaintiff and Respondent, v. ANDRE R., Defendant and Appellant. A021534.

Page 723

204 Cal.Rptr. 723

158 Cal.App.3d 336

In re ANDRE R., A Person Coming Under the Juvenile Court Law.

The PEOPLE of the State of California, Plaintiff and Respondent, v. ANDRE R., Defendant and Appellant.

A021534.

Court of Appeal, First District, Division 2, California.

June 21, 1984.

John K. Van de Kamp, Atty. Gen., Thomas A. Brady, Charles J. James, Deputy Attys. Gen., for plaintiff and respondent.

SMITH, Associate Justice.

Appellant Andre Verrett R. appeals from an order adjudging him to be a person described in Welfare and Institutions Code section 602 upon the finding that he committed a misdemeanor violation of Penal Code section 12021.5 (possession of a concealable firearm by a minor unless such minor has written permission or is accompanied by a parent or guardian).

BACKGROUND

At approximately 3 a.m. on November 14, 1982, an undisclosed number of Oakland police officers were dispatched by radio to the vicinity of East 14th Street and 88th Avenue to investigate a possible robbery. The initial report provided that four male black juveniles were robbing an old man, and an updated dispatch related that these four suspects had been seen in a bar located at East 14th Street and 87th Avenue. One of the suspects was reported as wearing a black hat and a black jacket. Another wore a brown jacket.

The officers parked in front of the bar just as Oakland Officer Sandoval spotted three or four male black juveniles exiting it. One juvenile, later identified as sixteen year-old appellant, was wearing a black hat and jacket. He continuously kept his right hand in his right jacket pocket as the officers approached and questioned them. When the suspects questioned the officers' authority to stop them, one policeman suggested that the juveniles be separated by placing them in separate patrol cars. The officers then walked the individuals to respective cars until appellant broke free and started running westbound on East 14th Street.

Officer Sandoval chased appellant from East 14th onto 86th Avenue at which point appellant crossed 86th in a diagonal fashion to the west sidewalk. The officer was twenty to twenty-five feet behind. When appellant reached the sidewalk, Officer Sandoval stated he saw appellant release a small object from his waist area, dropping this object vertically onto the ground. It fell directly from appellant's body, and the officer did not hear any sound as it dropped.

Appellant then recrossed the street in a southbound direction until fellow Officer Barnett appeared in a patrol car, pulled alongside appellant, and ordered him to stop. Appellant began to approach the car in which Barnett sat until Officer Sandoval grabbed him and knocked him down. After handcuffing appellant, the officers returned to the area where Sandoval had seen the object dropped. With the aid of flashlights, Officer Barnett found a gray .22 caliber revolver with brown grips laying on its side in the middle of the sidewalk. The object was in the immediate area where Sandoval had seen the drop. This area is bordered by an empty lot and by a strip of grass or weeds. The officers did not see any liquor bottles or debris although there may have been some in the lot or grass border. There had been no vehicular or pedestrian traffic while Officer Sandoval chased appellant and retrieved the gun.

A petition was filed on November 16, 1982, in Alameda County Juvenile Court alleging that appellant was a person described in Welfare and Institutions Code section 602 in that he had violated Penal Code section 12021.5. A supplemental petition was filed under Welfare and Institutions Code section 777 seeking an order modifying a previous order granting probation to the minor.

At a jurisdictional hearing, Officer Sandoval related the above-mentioned facts, and appellant's brother, Rodney R., testified that appellant had had a dark .25 caliber gun with a brown handle with him two days before his arrest. Appellant's father--his parents were never married and do not now live together--testified that appellant did not have permission to have a concealable firearm on his person. However, appellant was on probation in the Appellant testified on his own behalf that he had been drinking at a party on the night at issue and that when the officers approached and asked him to get against the car, he remembered he had a small, half-empty bottle of gin on him. Fearing that possession of the gin would affect his probation status, he ran from the officers. While running, he threw the bottle which then hit the "side of the curve" and bounced into a grass area, which was about fifteen to twenty feet from where the officers later found the gun.

custody of his mother, although he had visited his father the night of his arrest.

The court found that the evidence was beyond a reasonable doubt that the allegation in the petition was true. At a subsequent dispositional hearing, the court rejected the probation officer's recommendation that appellant be returned to the custody of his mother. Appellant has at least two other weapons offenses, has failed to provide court-ordered restitution on earlier charges, and does not attend school as required. Appellant was then committed to the custody of his probation officer to be placed "in some suitable county facility" such as Los Cerros camp or, as a second alternative, to the California Youth Authority. The Court stated, "He's placed under the usual terms and conditions of probation, including the condition that he obey all laws; that he observe all of the rules and regulations of the camp."

APPEAL

Appellant raises two issue on appeal: whether the trial court's finding that he possessed a concealable firearm in violation of Penal Code section 12021.5 is supported by substantial evidence and whether the trial court's dispositional order is unconstitutionally vague.

I

Penal Code section 12021.5 provides in pertinent part that "[a] minor may not possess a concealable firearm unless he or she has the written permission of his or her parent or guardian to have such firearm or is accompanied by his or her parent or guardian while he or she has such firearm in his or her possession." ¹

Appellant initially asserts that the finding that he had violated this section is not supported by substantial evidence because there was inadequate evidence that he did not have a parent's written permission to carry a concealable firearm. Conceding that the prosecutor did elicit testimony from appellant's father that his son did not have permission to carry the weapon, appellant nevertheless argues that the prosecutor improperly failed to provide evidence that appellant's mother had not given such permission. Appellant's parents do not live together, and, at the time of his arrest, appellant was on probation in the physical custody of his mother.

This contention must fail. Appellant erroneously assumes that the prosecutor was required to prove the lack of a parent's written permission to carry a concealable firearm as an element of the crime under section 12021.5. Rather, that section provides that a minor may not carry such a concealable weapon "unless" he has the written permission of a parent or is in the company of a parent.

It is well established that where a statute first defines an offense in unconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant. (Ex parte Hornef (1908) 154 Cal. 355, 360, 97 P. 891; People v. Lawrence (1961) 198 Cal.App.2d 54, 62-63, 18 Cal.Rptr. 196; People v. Mason (1960) 184 Cal.App.2d 317, 356, 7 Cal.Rptr. 627; Witkin, Cal.Crim. Procedure (1963) Proceedings Before Trial, §§ 202-203, pp. 190-191.) It was stated in Ex parte Hornef, supra, 154 Cal. 355, 97 P. 891, that " '[t]he question is whether the exception is so incorporated with, and becomes a part of the enactment, as to constitute a part of the definition, or description of the offense; for it is immaterial whether the exception or proviso be contained in the enacting clause or section, or be introduced in a different manner. It is the nature of the exception and not its location which determines the question. Neither does the question depend upon any distinction between the words "provided" or ...