The opinion
Filed 2/23/15
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re D.D., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent, A140704
v.
(San Francisco City and County
D.D., Super. Ct. No. JW13-6403; Alameda
Defendant and Appellant. County Super. Ct. No. SJ11017913)
Police officers detained and searched D.D. and a companion after observing them
apparently smoking marijuana in a private parking area. D.D. was found to be in
possession of a concealed loaded handgun and charged by petition with violation of Penal
Code sections 25400, subdivision (a)(2), and 25850, subdivision (a).1 D.D.’s motion to
suppress the evidence was denied, and the petition’s allegations were found true. The
juvenile court also found the offenses to be mandatory felonies pursuant to
subdivision (c)(4) of sections 25400 and 25850. In the published portion of this opinion
we conclude that D.D.’s offenses were not automatically felonies by virtue of his status
as a minor, and therefore we reverse and remand for the juvenile court to determine the
applicable subdivisions of sections 25400 and 25850 and designate the offenses as either
misdemeanors or felonies accordingly. In the nonpublished portion of the opinion, we
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.A. and II.C.
1
Undesignated statutory references are to the Penal Code.
1
affirm the denial of D.D.’s motion to suppress and strike the designation of a maximum
term of confinement from the disposition order.
I. BACKGROUND
On November 5, 2013, the San Francisco District Attorney filed a Welfare and
Institutions Code section 602, subdivision (a) juvenile wardship petition on behalf of
D.D., alleging he violated sections 25850, subdivision (a) (carrying a loaded firearm in
public) and 25400, subdivision (a)(2) (carrying a concealed firearm). Both offenses were
identified as felonies on the petition. D.D.’s motion to suppress evidence was heard in
conjunction with the jurisdictional hearing (Hon. Susan M. Breall), and the following
evidence was adduced.
On November 1, 2013, San Francisco Police Officer Duncan Duffin and his
partner, Francisco Chicas, were working as a robbery abatement team. A series of armed
and unarmed robberies had been committed within two blocks of the Glen Park and
Balboa Park BART stations, mostly by young males (teenaged or in their early 20’s) who
were wearing loose-fitting dark-colored hooded sweatshirts or pullovers and pants. At
about 4:00 p.m., the uniformed officers were patrolling the area around the Balboa Park
station in an unmarked vehicle. They saw two teenaged males wearing hooded
sweatshirts and blue jeans standing in front of a parked Pontiac Grand Prix in a San
Francisco Municipal Railway (Muni) employee parking lot near a Muni maintenance
yard. The lot had signs indicating it was for Muni employees only and prohibiting
trespassing.
The officers pulled over, and Duffin noticed smoke in the vicinity of the young
men (D.D. & K.H.). He also saw D.D. look directly at the officers and then turn and
enter the front passenger’s side of the Grand Prix. As the officers exited their car and
approached the young men, Duffin smelled a strong odor of marijuana. He asked K.H.,
“Who has got the weed?” K.H. admitted having marijuana.
2
Duffin motioned with his hand for D.D. to exit the Grand Prix. When D.D. got
out, Duffin asked for his name and identification. D.D. provided a false name2 and said
he did not have identification. Dispatch had no record for the name given by D.D.
D.D. was advised that Duffin and Chicas were investigating a series of robberies in the
area. D.D. denied having any weapons on his person and did not tell Duffin who owned
the Grand Prix. When asked why he was on Muni property, D.D. answered hesitantly
and avoided the question. D.D. appeared apprehensive and nervous, and he kept looking
left and right up and down the street without making eye contact with Duffin. As D.D.
moved around, he kept repositioning his right hip away from Duffin: D.D. stood in a
bladed stance, with one foot forward and one foot in the back at about a 45 degree angle
and, as Duffin moved, he would pivot so his right hip was always pointed away from the
officer. Duffin testified that, based on his experience and training, he believed D.D. was
carrying a weapon at his right hip.
Duffin decided to search D.D. for weapons out of concern for the officers’ safety.
D.D. placed his hands on the back of his head, and Duffin used his left hand to secure
D.D.’s hands. Using his right hand, Duffin lifted the right side of D.D.’s sweatshirt and
saw a semiautomatic black handgun at D.D.’s right hip, tucked in his waistband. Duffin
removed the gun, placed it on the ground, and arrested D.D. Chicas examined the gun, a
semiautomatic nine-millimeter Glock pistol, and determined that it was loaded with a live
round in the chamber. It was stipulated that D.D. was 15 years old at the time of the
incident.
Judge Breall expressly found Duffin credible, denied D.D.’s motion to suppress,
and found the petition’s allegations true. The court then found that the crimes were
mandatory felonies pursuant to subdivision (c)(4) of sections 25400 and 25850. The case
was transferred to the Alameda County Superior Court for disposition, where Judge
Armando G. Cuellar, Jr., placed D.D. on probation and released him live with his mother
2
D.D. apparently was wanted at the time on an outstanding no bail warrant from
Alameda County.
3
on electronic monitoring. Judge Cuellar also declared an eight-year maximum term of
confinement.
II. DISCUSSION
A. Motion to Suppress**
D.D. argues the juvenile court erred by denying his motion to suppress. We
affirm.
On review of an order denying a motion to suppress, “[w]e defer to the trial
court’s factual findings, express or implied, where supported by substantial evidence. In
determining whether, on the facts so found, the search or seizure was reasonable under
the Fourth Amendment, we exercise our independent judgment. [Citations.]” (People v.
Glaser (1995) 11 Cal.4th 354, 362.)
“The Fourth Amendment to the United States Constitution prohibits seizures of
persons, including brief investigative stops, when they are ‘unreasonable.’ (Terry v. Ohio
(1968) 392 U.S. 1, 19 & fn. 16; [citation].) Our state Constitution has a similar provision.
(Cal. Const., art. I, § 13.) . . . [¶] . . . Because the ‘intrusion upon the sanctity of the
person’ consists not only of the patdown itself but also of the temporary detention during
which the patdown occurs, . . . ‘the officer must first have constitutional grounds to insist
on an encounter, to make a forcible stop.’ [Citation.] [¶] . . . [¶] . . . A detention is
reasonable under the Fourth Amendment when the detaining officer can point to specific
articulable facts that, considered in light of the totality of the circumstances, provide
some objective manifestation that the person detained may be involved in criminal
activity.” (People v. Souza (1994) 9 Cal.4th 224, 229–231, italics & parallel citations
omitted.) “[A]n officer has the authority to conduct a reasonable search for weapons
where that officer has reason to believe a suspect is armed and dangerous, regardless of
whether he has probable cause to arrest the individual for a crime. [Citation.] . . . [T]he
officer need not be absolutely certain that the individual is armed; the crux of the issue is
whether a reasonably prudent person in the totality of the circumstances would be
**
See footnote *, ante, page 1.
4
warranted in the belief that his or her safety was in danger. [Citation.]” (People v. Avila
(1997) 58 Cal.App.4th 1069, 1074.)
Judge Breall found that Duffin and Chicas saw two young men standing in a
nonpublic Muni parking area, observed smoke near the men, and smelled marijuana.
These facts provided some objective manifestation that D.D. and K.H. might have been
trespassing and smoking marijuana, thus justifying an investigatory detention.3
Additional facts cited by the court—that D.D. and K.H. were in the general vicinity of a
recent spate of robberies and were in clothing and of an age group that generally
corresponded with descriptions of the robbers—added to the officers’ reasonable
suspicion of criminal activity.
D.D. argues the evidence did “not support a finding that marijuana was being
smoked” or that he was smoking marijuana. To support an investigatory detention,
however, officers need not have evidence proving or providing probable cause that a
crime was being committed, but merely objective facts manifesting possible criminal
activity. Duffin’s observation of smoke and the odor of marijuana in the vicinity of the
two young men satisfied that standard. D.D. invokes the rule that “a defendant’s mere
proximity to a person suspected of criminal conduct does not itself provide grounds also
to suspect the defendant of wrongdoing. [Citation.]” (In re Carlos M. (1990)
220 Cal.App.3d 372, 382.) However, the juvenile court did not find that K.H. was
smoking marijuana alone. Rather, the court found that Duffin saw smoke and smelled
marijuana in the vicinity of both minors. The officer therefore had objective grounds to
suspect both D.D. and K.H. of criminal activity. D.D. argues that once K.H. said he
possessed the marijuana, the officers no longer had any basis to suspect D.D. of smoking
3
The juvenile court stated that the aforementioned facts were “not enough to
detain these two young men, . . . [although] there is enough to go up and investigate what
these young men or young adults are doing . . . .” Officers need no reasonable suspicion
to approach persons in public. (Florida v. Royer (1983) 460 U.S. 491, 497; People v.
Rivera (2007) 41 Cal.4th 304, 309.) They need reasonable suspicion to detain persons
for the purpose of investigation, and the facts found by the court are sufficient to establish
reasonable suspicion for such a detention.
5
or possessing marijuana. The statement by K.H., however, hardly exonerated D.D. from
use or possession of marijuana. Moreover, it did not explain D.D.’s presence in a
restricted parking area. The officers were justified in continuing their investigatory
detention of D.D.
D.D. also argues evidence of trespassing was insufficient because he and K.H.
could have been Muni employees. Given the suspects’ young age, casual clothing, and
apparent leisurely, lingering behavior smoking in front of a parked car, the officers had
objective grounds to suspect D.D. and K.H. were not Muni employees with a legitimate
reason to be present in the parking area, but were knowing trespassers on the clearly-
marked private lot. The officers certainly had more than sufficient reason to investigate
and determine whether D.D. and K.H. had legitimate reason to be in the restricted area.
Finally, D.D. argues his act of getting into the Grand Prix after noticing the
officers did not support the investigatory detention. Whether this factor alone would
have raised any reasonable suspicion is irrelevant. We do not look at any one factor in
isolation because the totality of circumstances determines the legality of a detention.
(United States v. Cortez (1981) 449 U.S. 411, 417.) We have already concluded the
officers had grounds to detain D.D. based on his presence in the restricted parking area
and the sight and odor of marijuana smoke.
The court ruled that “the repositioning of this young man’s right hip away from
the officer” established Duffin’s right to search D.D. for a weapon. “The minor is
hesitant, he is apprehensive, according to the officer. He is keeping his right hip away
from the officer. He keeps pivoting, he keeps moving. [¶] [Duffin] feels, based on his
training and experience, there [was] a possible weapon on [D.D.’s] right hip.” We agree
that these facts gave Duffin reason to believe D.D. might be armed and that the officers’
safety was in jeopardy. (People v. Avila, supra, 58 Cal.App.4th at p. 1074.)
D.D. argues that, even if a search was justified to protect the officers’ safety, the
scope of the search exceeded that purpose, thus rendering it unreasonable. Specifically,
Duffin is faulted for lifting D.D.’s shirt rather than patting him down. We disagree that
the scope of the search was unreasonable. Lifting the side of a suspect’s shirt to expose a
6
waistband is not clearly more of an “ ‘intrusion upon the sanctity of the person’ ” than a
full patdown of a suspect’s body and groin, the usual form of a Terry stop and frisk. (See
People v. Souza, supra, 9 Cal.4th at p. 229.) In any event, the search’s scope was clearly
harmless because D.D. does not dispute that a patdown would have disclosed the gun’s
presence and resulted in its retrieval. (People v. Carpenter (1999) 21 Cal.4th 1016, 1040
[“[e]vidence need not be suppressed if the prosecution can establish by a preponderance
of the evidence that the information would inevitably have been discovered by lawful
means”].)
B. Designation of D.D.’s Offenses as Felonies
D.D. argues that the San Francisco juvenile court erred in designating his offenses
as felonies. He argues the court misinterpreted the statutory scheme and erroneously
concluded that the offenses were mandatory felonies. He further argues the case must be
remanded to redesignate the offenses as either felonies or misdemeanors. We agree.
We decide issues of statutory interpretation de novo. (In re M.W. (2008)
169 Cal.App.4th 1, 4.)
1. Statutory Scheme
Section 25400 provides: “(a) A person is guilty of carrying a concealed firearm
when the person does any of the following: [¶] . . . [¶] (2) Carries concealed upon the
person any pistol, revolver, or other firearm capable of being concealed upon the person.
[¶] . . . [¶] (c) Carrying a concealed firearm in violation of this section is punishable as
follows: [¶] . . . [¶] (4) If the person is not in lawful possession of the firearm or the
person is within a class of persons prohibited from possessing or acquiring a firearm
pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with
Section 29900) of Division 9 of this title, or Section 8100 or 8103 of the Welfare and
Institutions Code, as a felony. [¶] . . . [¶] (6) If both of the following conditions are met,
by imprisonment pursuant to subdivision (h) of Section 1170, 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 fine and imprisonment: [¶] (A) The pistol, revolver, or other firearm
capable of being concealed upon the person is loaded, or both it and the unexpended
7
ammunition capable of being discharged from it are in the immediate possession of the
person or readily accessible to that person. [¶] (B) The person is not listed with the
Department of Justice pursuant to paragraph (1) of subdivision (c) of Section 11106 as
the registered owner of that pistol, revolver, or other firearm capable of being concealed
upon the person. [¶] (7) In all cases other than those specified in paragraphs (1) to (6),
inclusive, 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.” (Italics added.)
In other words, a violation of section 25400 is a felony offense under
subdivision (c)(4), a misdemeanor offense under subdivision (c)(7), and an alternate
felony/misdemeanor, commonly known as a “wobbler” offense4 under subdivision (c)(6).
Section 25850, subdivision (a) provides: “A person is guilty of carrying a loaded
firearm when the person carries a loaded firearm on the 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.” Subdivision (c) of
section 25850 is substantively identical to subdivision (c) of section 25400 except the
phrase “concealed firearm” is replaced with “loaded firearm” and section 25850,
subdivision (c) does not include the language in section 25400’s subdivision (c)(6)(A).
As with section 25400, section 25850 may be a felony, a misdemeanor, or a wobbler
depending on the circumstances.
“As used in Section 25400, ‘lawful possession of the firearm’ means that the
person who has possession or custody of the firearm either lawfully owns the firearm or
has the permission of the lawful owner or a person who otherwise has apparent authority
to possess or have custody of the firearm.” (§ 16750, subd. (a).) As used in
section 25850, “ ‘lawful possession of the firearm’ means that the person who has
possession or custody of the firearm either lawfully acquired and lawfully owns the
4
See People v. Statum (2002) 28 Cal.4th 682, 685 (wobbler offenses are deemed
felonies unless charged as misdemeanors or reduced to misdemeanors in the court’s
sentencing discretion).
8
firearm or has the permission of the lawful owner or person who otherwise has apparent
authority to possess or have custody of the firearm.” (§ 16750, subd. (b).)
Additional statutes govern possession of firearms and ammunition by minors.
Section 29610 provides that “[a] minor shall not possess a pistol, revolver, or other
firearm capable of being concealed upon the person,”5 and violation this statute is a
wobbler, punishable “[b]y imprisonment pursuant to subdivision (h) of Section 1170 or in
a county jail.” (§ 29700, subd. (a)(3).) Section 29650 prohibits minors from possessing
live ammunition, and section 29655 establishes exceptions similar to those in
section 29615. A violation of section 29650 is a misdemeanor or, if certain prior offenses
are proved, a wobbler. (§ 29700, subd. (a)(1)–(2), (b).)
2. Juvenile Court Proceedings
The prosecutor argued that D.D.’s violations of sections 25400, subdivision (a)(2)
and 25850, subdivision (a) were mandatory felonies under subdivision (c)(4) of each
section. He argued D.D. was “not in lawful possession of [the] firearm or . . . [wa]s
within a class of persons prohibited from possessing or acquiring a firearm” because, as a
minor, D.D. was prohibited from possessing the gun pursuant to section 29610 and none
of the exceptions of section 29615 were applicable.
D.D. argued section 29610 could not support application of subdivision (c)(4) of
either section 25400 or 25850, because section 29610 has its own punishment provision
(§ 29700 [designating it a wobbler offense]). Instead, violations of sections 25400 and
25850 were punishable either as wobblers or as mandatory misdemeanors under
subdivisions (c)(6) or (c)(7) of the respective statutes.
Judge Breall found, “Count one, [D.D.] did commit a felony, a violation of
section 25850(a) . . . in that the minor did unlawfully carry a loaded firearm . . . on his
person while in a public place, . . . [which] is punishable under . . . section 25850(c)(4).
[¶] . . . I am not exercising any punishment here. . . . But I am making that finding, and I
5
Exceptions to section 29610 include recreational activities when accompanied by
a parent or by a responsible adult with prior written consent of the parent. (§ 29615,
subds. (a), (b).)
9
believe I have to do that as I am reading the case law. [¶] I also find the offense is a
felony, it is a non-wobbler. I also find that the allegation . . . in count 2 has been proven
beyond a reasonable doubt, and it is a felony. And I understand these cases can be
charged as felonies or misdemeanors. And I should state that I know that and I
understand that, for the record, and I understand my discretion for the record. [¶] But I
am finding that this is a felony, a violation of section 25400(a)(2) . . . and that the minor
did unlawfully carry[,] concealed upon his person, a firearm . . . , which is punishable
under . . . section 25400(c)(4). [¶] I do find that he is in a class of people prohibited from
owning or possessing such a firearm . . . .” (Italics added.)
These statements are far from clear. While the juvenile court seemed to indicate
that it was exercising discretion in finding the offenses to be felonies, it then explicitly
applied subdivision (c)(4) of both sections 25400 and 25850, which mandate felony
treatment, apparently relying on section 29610’s prohibition of possession of a
concealable firearm by a minor. We conclude that the court erred in doing so. We find
on the factual basis of this record that the court was instead required to determine if the
requirements of subdivision (c)(6) of sections 25400 and 25850 were met, and if so,
whether to declare the offenses felonies or misdemeanors, in its discretion. If those
requirements were not met, the offenses would be mandatory misdemeanors under
subdivision (c)(7) of sections 25400 and 25850.
3. Applicability of Subdivision (c)(4) of Sections 25400 and 25850 to Minors
Recently Division One of this court ruled that a defendant is not a “person not in
lawful possession of the firearm or . . . within a class of persons prohibited from
possessing or acquiring a firearm” within the meaning of section 25400, subdivision
(c)(4) simply because he or she is a minor prohibited from possessing a concealable
firearm pursuant to section 29610. (In re M.G. (2014) 228 Cal.App.4th 1268, 1274–1278
(M.G.).)6 We find the rationale of M.G. persuasive.
6
M.G. had not been decided when the juvenile court issued its order in this matter.
10
In M.G., the minor admitted possessing a concealed firearm, a violation of
section 25400, subdivision (a)(2), and the juvenile court found the offense to be
punishable as a felony under subdivision (c)(4) of the statute. (M.G., supra,
228 Cal.App.4th at p. 1274.) In its examination of section 25400, subdivision (c)(4), the
Court of Appeal explained: “First, it is significant the Legislature included no express
language subjecting minors to automatic felony punishment for carrying concealable
firearms even though it could easily have done so either in . . . section 16750 or section
25400. Section 16750, which expressly defines the term ‘lawful possession’ for purposes
of section 25400, subdivision (c)(4) makes no reference to minors. Even assuming a
minor cannot himself be a lawful owner of a firearm, section 16750 by its own express
terms creates no exception to lawful possession when the minor has possession or
custody of a firearm with the lawful owner’s permission.
“It is even more significant in divining legislative intent that . . . section 25400,
subdivision (c)(4) expressly declares it a felony for persons subject to either chapter 2 or
chapter 3 of division 9, title 4, part 6 of the Penal Code to carry concealable weapons, but
omits any mention of persons subject to chapter 1 of division 9. Chapters 2 and 3
describe persons who have been convicted of certain offenses. Chapter 1 is entitled
‘Juvenile’ and happens to contain . . . section 29610. It is the only chapter in division 9
describing a particular class of persons that is omitted from subdivision (c)(4) of . . .
section 25400. Moreover, if the term ‘lawful possession’ automatically excludes minors
by virtue of section 29610, there is no reason it would not also automatically exclude all
persons whose possession of a firearm is made unlawful by statute. If so, section 25400,
subdivision (c)(4)’s specific references to chapters 2 and 3 (as well as to sections 8100
and 8103 of the Welfare and Institutions Code) would be entirely superfluous.
Interpretations that render statutory terms meaningless as surplusage are to be avoided.
[Citation.]
“The Legislative Counsel’s description of the operative amendments also guides
our analysis. The language now found in . . . section 25400, subdivision (c)(4) and the
definition of lawful possession in section 16750 were originally added to . . . former
11
section 12025 in 1996, as part of Assembly Bill No. 632 (1995–1996 Reg. Sess.).
(Historical and Statutory Notes, 51D West’s Ann. Pen.Code (2000 ed.) foll. § 12025,
p. 219; Stats. 1996, ch. 787, § 2, pp. 4152–4153.) The Legislative Counsel’s Digest of
the bill explained the amendments made the ‘offense [(possession of a concealable
firearm)] punishable only as a felony in the circumstance where . . . the person is not in
lawful possession of the firearm, as defined, or is within a class of persons prohibited by
specified provisions from possessing or acquiring a firearm.’ (Legis. Counsel’s Dig.,
Assem. Bill No. 632 (1995–1996 Reg. Sess.) 6 Stats. 1996, Summary Dig., p. 312, italics
added.) The view that section 25400, subdivision (c)(4) automatically applies to any
minor violating the concealed firearms statute is thus not supported by the bill digest.
“Second, when the Legislature did address the punishment of minors found to be
in possession of a concealable weapon—in chapter 1, division 9 of title 4, part 6 the Penal
Code—it did so in a manner inconsistent with the Attorney General’s interpretation of . . .
section 25400. (See . . . §§ 29610–29750.) Section 29700, subdivision (a) declares
‘[e]very minor who violates [section 29610] of this chapter shall be punished . . .’ either
by imprisonment as a felon or in a county jail. As appellant points out, holding that
minors are automatically subject to section 25400, subdivision (c)(4) would completely
undercut what the Legislature was trying to do in section 29700. Instead of having to
consider whether the minor’s possession of a concealable firearm should be charged as a
felony or a misdemeanor, as section 29700 seems to require, prosecutors could simply
bypass that requirement by charging and prosecuting minors as felons under
section 25400, subdivision (c)(4). By doing so, the prosecutor would also deprive the
juvenile court of the discretion and duty it would otherwise have under Welfare and
Institutions Code section 702 to determine whether a violation of . . . section 25400,
subdivision (a)(2) is a felony or a misdemeanor in a particular case.
“We see no indication the Legislature intended to reserve all discretion over the
classification of concealed firearms violations by minors to the prosecution, or to
override or impliedly repeal the specific provisions of law found in chapter 1 of
division 9, title 4, part 6. ‘It is . . . settled law that when a special and a general statute
12
are in conflict, the former controls. (Code Civ. Proc., § 1859.) The special act will be
considered as an exception to the general statute whether it was passed before or after
such general enactment. [Citations.] Here the special act pertaining to minors in
possession of a concealable weapon controls over the general statute pertaining to
possession.” (M.G., supra, 228 Cal.App.4th at pp. 1276–1278, fns. omitted.)
We agree with M.G.’s analysis of section 25400, subdivision (c)(4) and hold that it
applies to section 25850, subdivision (c)(4) as well. Similar to section 25400, the
Legislature included no express language in section 25850 subjecting minors to
automatic felony punishment for carrying loaded firearms even though it could easily
have done so.7 Subdivision (c)(4) of both sections expressly declare it a felony for
persons with certain mental disorders or prior convictions to carry concealed or loaded
firearms, but make no mention of minors who are generally prohibited from possessing
concealable firearms (§ 29610) or live ammunition (§ 29650). When the Legislature
addressed punishment of minors found to be in possession of a concealable firearm or
live ammunition, it declared those violations to be punishable as wobblers or
misdemeanors. (§ 29700.) Thus, in the words of M.G., “holding that minors are
automatically subject to section [25850], subdivision (c)(4) would completely undercut
what the Legislature was trying to do in section 29700. Instead of having to consider
whether the minor’s possession of a [loaded] firearm should be charged as a felony or a
misdemeanor, as section 29700 seems to require, prosecutors could simply bypass that
requirement by charging and prosecuting minors as felons under section [25850],
subdivision (c)(4). By doing so, the prosecutor would also deprive the juvenile court of
the discretion and duty it would otherwise have under Welfare and Institutions Code
7
We note also that the language now found in sections 25400 and 25850 first
appeared in the same bill that amended their predecessor statutes (former §§ 12025,
12031, as amended by Stats. 1996, ch. 787, §§ 2–3, pp. 4152–4159), and the Legislative
Counsel’s description of the operative amendment to section 25850’s predecessor statute
explicitly references and parallels its description of the amendment to section 25400’s
predecessor (Legis. Counsel’s Dig., Assem. Bill No. 632 (1995–1996 Reg. Sess.) 6 Stats.
1996, Summary Dig., p. 312).
13
section 702 to determine whether a violation of [section 25850, subdivision (a)] is a
felony or a misdemeanor in a particular case.” (M.G., supra, 228 Cal.App.4th at p. 1277,
fn. omitted.) In sum, we see no indication that the Legislature intended subdivision (c)(4)
of section 25850 to automatically apply to minors who violate the loaded weapons
statute.
The People argue M.G. is factually distinguishable because “the minor in M.G.
argued the record did not support the felony determination. [Citation.] Division One
found that the juvenile court ‘erred by deeming the offense to be a felony without any
proof of or stipulation to facts showing he did not have ‘lawful possession of the firearm.’
. . . [Citation.] [¶] In the present case, by contrast, the predicate facts found missing in
M.G. were provided by the evidence . . . . Officer Duffin testified that after the gun was
removed from appellant’s waistband, [D.D.] never said that he owned the gun, that he
had his parent’s permission to have the gun, or that he was on his way to participate in a
sport that required use of a gun. [Citation.]”
This argument is unpersuasive. First, the M.G. court held that the juvenile court
“erred by deeming [M.G.’s] offense to be a felony without any proof of or stipulation to
facts showing he did not have ‘lawful possession of the firearm’ as specifically defined in
. . . section 16750 . . . .” (M.G., supra, 288 Cal.App.4th at p. 1278, italics added.) The
M.G. court further held that section 16750’s definition did not categorically exclude
minors from lawful possession of a firearm. (M.G., at pp. 1276–1278.) Second, the
People point to an absence of evidence as support for the prosecution’s case, even though
the prosecution bore the burden of proving the offense beyond a reasonable doubt, and
cite to affirmative evidence that only would establish D.D., as a minor, possessed a
firearm or ammunition in violation of sections 29610 and 29650—which under the
authority of M.G. is insufficient to qualify the offense as a mandatory felony under
subdivision (c)(4) of either section 25400 or 25850. Third, although the People indicate
on appeal that D.D. had prior juvenile adjudications for burglary and possession of a
concealable firearm—facts that might require felony sentencing under subdivision (c)(4)
of sections 25400 and 25850—the juvenile court pointedly noted after the close of
14
evidence at the jurisdictional hearing that the prosecution had not presented evidence of
prior offenses.
We conclude that the juvenile court erred to the extent it declared D.D.’s offenses
to be felonies pursuant to subdivision (c)(4) of either section 25400 or section 25850.
4. D.D.’s Offenses as Wobblers
Under subdivision (c)(6) of sections 25400 and 25850, the fact the weapon found
concealed on D.D.’s person was loaded would make his offenses wobblers if he was not
the registered owner. D.D. argued below that subdivision (c)(6) of sections 25400 and
25850 did not apply because the prosecution failed to establish that the gun was not
registered to D.D. That issue, however, has not been briefed on appeal and we do not
decide it.8 As noted ante, D.D. may have had prior juvenile adjudications requiring
felony sentencing under subdivisions (c)(1), (4) or (5) of sections 25400 and 25850, but
that evidence was not before Judge Breall at the jurisdictional hearing. The People also
suggest that we should affirm on the ground the juvenile court has already exercised its
discretion to designate the offenses as felonies. As discussed ante, we are not convinced
that the court did so. On this record, the offenses may, or may not, be wobblers.
On appeal, D.D. seems to concede that remand is required to allow the juvenile
court to determine whether the violations should be penalized as misdemeanor or felony
offenses, although he confusingly suggests that the court should make that determination
“pursuant to section 29700.” We agree that remand is required for the juvenile court to
determine the applicable subdivisions of sections 25400 and 25850 and designate each
offense as a misdemeanor or felony accordingly.
C. Maximum Term of Confinement**
The parties agree that the juvenile court in Alameda County erred when it set a
maximum term of confinement at D.D.’s sentencing. A maximum term of confinement
8
We observe that such registration would seem to be legally impossible in light of
the complete prohibition in section 29610 on possession of a concealable firearm by a
minor.
**
See footnote *, ante, page 1.
15
must be set if the minor is removed from the physical custody of his parent or guardian,
but setting a maximum term when the minor remains in the custody of his parent or
guardian has no legal effect. (Welf. & Inst. Code, § 726, subd. (d); In re Ali A. (2006)
139 Cal.App.4th 569, 573, 574, fn. 2.) The parties agree that the appropriate remedy is to
strike the term from the disposition order. (See In re A.C. (2014) 224 Cal.App.4th 590,
592.) We order the maximum term stricken.
III. DISPOSITION
The order denying D.D.’s motion to suppress and the juvenile court’s
jurisdictional findings are affirmed. The order declaring the offenses felonies pursuant to
subdivision (c)(4) of sections 25400 and 25850, is reversed. The matter is remanded to
the juvenile court to designate the offenses as felonies or misdemeanors pursuant to what
the court determines to be the applicable subdivisions of sections 25400 and 25850. The
maximum term of confinement shall be stricken from the disposition order.
16
_________________________
BRUINIERS, J.
WE CONCUR:
_________________________
JONES, P. J.
_________________________
NEEDHAM, J.
A140704
17
Superior Court of San Francisco City and County No. JW13-6403, Susan M. Breall,
Judge, and Superior Court of Alameda County, No. SJ11017913, Armando G. Cuellar, Jr.
Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Senior Assistant Attorney
General, Ronald E. Niver and Christina vom Saal, Deputy Attorneys General, for
Plaintiff and Respondent.
18