In Re D.M.

• Decision Date: 19 April 2011
• Docket Number: F060413,Fresno Super. Ct. No. 09CEJ600508-1
• Parties: In re D.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

In re D.M., a Person Coming Under the Juvenile Court Law.THE PEOPLE, Plaintiff and Respondent,

v.D.M., Defendant and Appellant.

F060413

Fresno Super. Ct. No. 09CEJ600508-1

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

Filed: April 19, 2011

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. 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.

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, ¹ § 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)).² The court continued appellant as a juvenile ward on probation and ordered him to serve 60 days in the Juvenile Justice Center.

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 midsized 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.³ 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.

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.⁴ 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."

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 removedfrom 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.⁵ 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...