In re Arturo C.

Filed 4/25/06 In re Arturo C. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Joy W. Markman, Judge. Affirmed.

Linn Davis, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons and Jeffrey J. Koch, Assistant Attorneys General, and Robert M. Foster, Deputy Attorney General, for Plaintiff and Respondent.

This is a simple case, made complicated only by the fervor and tenacity of the appellate advocacy on behalf of appellant. Despite the commendable zeal of appellate counsel, we find the evidence in this case sufficient to support the juvenile court's determination minor possessed live ammunition in violation of section 12101, subdivision (b)(1) of the Penal Code.

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Arturo Christopher C. (Minor) was arrested on a warrant. He first denied his identity, but a search of his pockets turned up his wallet and his school identification, putting the lie to his denial. He was patted down for weapons, handcuffed, placed in the rear seat of a police car, and transported to the La Habra City Jail. Upon his arrival a live .223 Winchester rifle cartridge, three inches in length, was found on the driver's side rear floor of the police car. One of the arresting officers testified the car had been searched at the beginning of the shift and had no bullet in it at that time. He said no one else was in the car between the time he searched it and the time the Winchester cartridge was found except his partner. Minor denied ever possessing the bullet, which fit none of the police weapons in the car. That is the sum and substance of the case.

And it is not much. As the trial judge noted, the bullet should have been found during the pat-down of Minor, or it should have been found during the initial search of the police car, depending upon whose version of the facts she believed. Either way, the police missed something they should have found.

But the trial judge reasoned that it was more likely the police missed the bullet in a superficial pat-down for weapons of a boy in baggy clothes who was already handcuffed than it was that they missed it sitting in the police car before the arrest. We are inclined to agree. On the facts of this case, it was so much more likely as to constitute proof beyond a reasonable doubt.

As appellant concedes, â€