In re Erwin M.

Filed 7/27/07 In re Erwin M. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from an order of the Superior Court of Los Angeles County, Steff Padilla, Commissioner (pursuant to Cal. Const. art. VI,  21). Affirmed and remanded with directions.

Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Elaine F. Tumonis, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Appellant Erwin M. (Erwin), a minor, found a loaded, sawed-off shotgun in the bushes near his residence, and hid it under the clutter in the side yard of the property. Upon the discovery of the shotgun by a family member and neighbors, the juvenile court detained Erwin and sustained a petition under Welfare and Institutions Code section 602, finding true the allegation that Erwin possessed live ammunition in violation of Penal Code section 12101, subdivision (b)(1).^[1]

On appeal from the juvenile courts order sustaining the petition, Erwin contends that there is insufficient evidence to support the trial courts finding that he possessed live ammunition. He also contends that certain of the conditions of his probation, as orally pronounced by the juvenile court, are not accurately reflected in the courts records and that those records must therefore be corrected.

We hold there is substantial evidence in the record to support the juvenile courts finding that Erwin possessed live ammunition. We agree, however, that the juvenile courts records do not accurately reflect the conditions of probation, as orally pronounced by the court, and that those records must be corrected. Accordingly, we affirm the order of the juvenile court sustaining the petition under Welfare and Institutions Code section 602, and direct the juvenile court to correct its records to reflect accurately the conditions of Erwins probation as orally pronounced by the court at the disposition hearing.

PROCEDURAL BACKGROUND

The Los Angeles County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602, alleging in Count 1 that Erwin possessed a firearm in violation of section 12101, subdivision (a)(1), a felony, and in Count 2 that Erwin possessed live ammunition in violation of section 12101, subdivision (b)(1), a misdemeanor. Following an adjudication hearing, the juvenile court found true the allegations of Count 2, and sustained the petition as to that Count. On its own motion, the juvenile court dismissed Count 1.

At the disposition hearing, the juvenile court declared Erwin a ward of the court pursuant to Welfare and Institutions Code section 602. He was placed at home on probation and received predisposition credits of 27 days. Erwin filed a notice of appeal from the juvenile courts July 14, 2006, order sustaining the petition filed under Welfare and Institutions Code section 602.

FACTUAL BACKGROUND

On June 18, 2006, Erwin resided with his father, his mother, and his brother at his aunt Josephine P.s house, located in Whittier, California. At approximately 2:30 p.m. that afternoon, Erwin was present as Ms. P. and three of her neighbors, George G., Richard H., and Pearl H., were cleaning up a bunch of junk from the side yard of Ms. P.s house. Ms. P. had asked Erwin to help clean up, but he just sat and watched.

After the adults removed a desk, roofing material, and carpeting from the side yard, they discovered a sawed-off shotgun. Ms. H. saw a bullet lying near the gun and another one in the chamber of the shotgun itself. She called the Los Angeles County Sheriffs Department and reported the discovery. Mr. H. removed the gun and the cartridge from where they had been found, and placed them on a plastic table, 15 or 20 feet away.

Los Angeles County Deputy Sheriff Jesse Uribe responded to the scene. He recovered a short barrel, Remington Express 12-gauge shotgun, and one live shotgun round from the scene. He inspected the shotgun, determined that it was a real gun, and was loaded with three rounds in the chamber. He unloaded the shotgun as a safety measure at the Norwalk Station.

When Deputy Uribe advised Erwin of his Miranda rights, Erwin waived his rights and agreed speak with Deputy Uribe. Erwin told Deputy Uribe that he found the shotgun approximately a month earlier in the bushes down the street. He admitted that the live shotgun rounds found near the shotgun belonged to him. Erwin explained that he hid the shotgun in the side yard because he knew he would get in trouble if he got caught. He also explained that he kept the shotgun to play with it and because it looked cool. Erwin admitted that he had loaded and unloaded the shotgun, and that he had done so as recently as the night before.

Deputy Uribe did not test fire any of the shotgun shells he recovered from the scene, and admitted that, because he had not test fired any of them, he did not know whether they were live. But Deputy Uribe had seen shotgun shells several times during his training at the Academy similar to the ones he recovered at the scene, and he had fired shotgun shells during training after the Academy that looked exactly like those he had recovered. Based on Deputy Uribes training and experience, he believed the rounds he recovered at the scene were 12-gauge shotgun rounds. He said, that round in particular resembles a live shotgun round. He treated them as live rounds―not expended ones―because they were not flowered out or spread out.

DISCUSSION

A. Standard of Review

In reviewing a challenge of the sufficiency of the evidence, we apply the following standard of review: [We] consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the decision, not whether the evidence proves guilt beyond a reasonable doubt. [Citations.] Our sole function is to determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] The standard of review is the same in cases where the prosecution relies primarily on circumstantial evidence. [Citations.] The California Supreme Court has held, Reversal on this ground is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citations.] (In re Arcenio V. (2006) 141 Cal.App.4th 613, 615-616 (Arcenio).) The evidence of one witness is sufficient to constitute substantial evidence, unless it is inherently improbable, i.e., physically impossible or apparently false without resort to inference or deduction. (See People v. Mayberry (1975) 15 Cal.3d 143, 150.)

B. Substantial Evidence

Erwin contends that there is insufficient evidence to support the juvenile courts finding that the ammunition recovered with the shotgun was live. According to Erwin, Deputy Uribes testimony that he treated the ammunition as if it was live is insufficient to prove that the ammunition was, in fact, live. Instead, Erwin asserts that some observation or testing of the contents of the round was necessary to prove it was live ammunition, as opposed to something less dangerous.

In support of his substantial evidence argument, Erwin cites to this courts recent decision in In re Arcenio V., supra, 141 Cal.App.4th 613 (Turner, J.) and the dissenting opinion in the earlier decision in In re Khamphouy S. (1993) 12 Cal.App.4th 1130 (Khamphouy). The Attorney General, on the other hand, relies upon the majority opinion in Khamphouy and contends that Arcenio is distinguishable.

In Arcenio, supra, 141 Cal.App.4th 613, a police officer observed the minor and two other young men acting suspiciously in an alley. (Id. at p. 615.) The officer detained the minor and the other two youngsters. (Ibid.) Another officer recovered two handguns from a utility cabinet near where the minor had been standing. (Ibid.) The minor admitted playing with one of the guns, but denied ownership. (Ibid.) The officer unloaded the gun and booked the bullets into evidence. (Ibid.)

In holding that there was insufficient evidence to support the trial courts finding that the ammunition was live within the meaning of section 12101, subdivision (b)(1),^[2] the court in Arcenio, supra, 141 Cal.App.4th 613 emphasized that [t]here was no direct or opinion testimony that the rounds were live. (Id. at p. 616.) Instead, according to the court in Arcenio, the only testimony in the case before it was that bullets were in the handgun and they were removed for booking purposes. (Id. at p. 617.) The court in Arcenio thendistinguished the facts before it from those at issue in Khamphouy, supra, 12 Cal.App.4th 1130. (Id. at pp. 616-617.) Specifically, the court in Arcenio noted that [t]here was no testimony that removal of the rounds was necessary for safety purposes as was the case in [Khamphouy]. There was no opinion testimony by [the arresting officer] that the rounds were live. Moreover, the trial court did not inspect the rounds as was the case in [Khamphouy]. No effort was made to test fire the handgun or any of the bullets. (Id. at p. 617.) Nevertheless, the court in Arcenio referred to Khamphouy as a very close case. (Id. at p. 616.)

In the instant case, unlike Arcenio, supra, 141 Cal.App.4th 613, the evidence went beyond mere testimony that bullets were removed from the gun for booking purposes. Deputy Uribe testified that he removed the three chambered rounds from the shotgun for safety purposes. He also testified that he treated the ammunition as if it was live and, based on his training and experience, the ammunition he recovered from the scene looked exactly like shotgun shells that he had fired during training after the Academy. Moreover, the shells appeared live, as opposed to expended, because they were not flowered out. Deputy Uribe further testified that Erwin admitted that the live shotgun rounds belonged to him. Although Deputy Uribe admitted on cross-examination that he did not test fire any of the rounds, and therefore did not know whether the rounds were live, the totality of the evidence, when viewed in the light most favorable to the juvenile courts finding, supports a reasonable inference that the ammunition was live.

Citing to the hypothetical scenario outlined in the dissenting opinion in Khamphouy, supra, 12 Cal.App.4th 1130, Erwin contends that this case is identical to a narcotics possession case in which the arresting officer testifies that the substance found in the defendants possession looked like a controlled substance, such as cocaine, but no scientific evidence, such as chemical testing, is introduced to confirm the accuracy of the officers observation. According to Erwin, in such cases the officers testimony, by itself, is insufficient to support a finding that the defendant possessed cocaine. By analogy to such cases, Erwin argues that Deputy Uribes testimony based on his observation of the recovered ammunition is insufficient as a matter of law to support the trial courts finding that Erwin possessed live ammunition.

Erwins argument is based on the erroneous legal premise that in narcotics possession cases, chemical testing or some other form of direct scientific evidence is always required to prove that the substance found in the defendants possession is a controlled substance. But that has never been the rule. [T]he nature of a substance, like any other fact in a criminal case, may be proved by circumstantial evidence. (People v. Tipton (1954) 124 Cal.App.2d 213, 216-217 [268 P.2d 196]; People v. Ihm (1966) 247 Cal.App.2d 388, 392 [55 Cal.Rptr. 599].) It may be proved, for example, by evidence that the substance was part of a larger quantity which was chemically analyzed (People v. Ihm, supra; People v. Francis (1969) 71 Cal.2d 66, 72 [75 Cal.Rptr. 99, 450 P.2d 591]; People v. Stump (1971) 14 Cal.App.3d 440, 443-444 [92 Cal.Rptr. 270]), by the expert opinion of the arresting officer (People v. Marinos (1968) 260 Cal.App.2d 735, 738-739 [67 Cal.Rptr. 452]), and by the conduct of the defendant indicating consciousness of guilt. (People v. Patterson (1959) 169 Cal.App.2d 174, 186 [337 P.2d 163].) (People v. Sonleitner (1986) 183 Cal.App.3d 364, 369, italics added.)

Here, the prosecution sought to prove, through the testimony of the arresting officer, that the ammunition recovered from the scene was live, without corroborating his testimony with direct evidence of testing or analysis. Although he was not formally designated as an expert on identifying live ammunition, Deputy Uribe did testify as to his training and experience as it related to live shotgun ammunition. A person is qualified to testify as an expert if he has special knowledge, skill, experience, training or education sufficient to qualify him as an expert on the subject to which his testimony relates. (Evid. Code 720, subd. (a).) The requisite special skill or experience is sufficient if it relates to a subject beyond common experience and is likely to assist the trier of fact in the search for the truth. (People v. Mayfield (1997) 14 Cal.4th 668, 766.)

The issue of whether ammunition is live appears to be a subject that is beyond common experience. Thus, if Deputy Uribes special training and experience would have likely assisted the trial court in determining whether the ammunition was live, it was sufficient to qualify him as an expert on that subject. As noted, Deputy Uribe testified that during his training at the Academy, he saw shotgun cartridges similar to the ones he recovered at the scene, and that during training after the Academy, he fired cartridges that looked exactly like the ones recovered. Based on that training and experience, Deputy Uribe opined that the cartridges he recovered were 12-gauge shotgun rounds and that they resembled live shotgun rounds. Erwin did not object to that opinion as lacking in foundation, and it is evident that Deputy Uribe based his opinion on his special skill or training. As noted, he had removed the ammunition from the shotgun as a safety measure.

Deputy Uribe also testified that Erwin admitted that the live shotgun round recovered next to the shotgun was his, and that he hid the shotgun and ammunition because he knew he would get into trouble if he got caught. That additional circumstantial evidence bolsters Deputy Uribes opinion that the ammunition was live because, as discussed, evidence showing a defendants consciousness of guilt can be sufficient to prove an element of a crime. Accordingly, although perhaps a close case, there was sufficient evidence to support the trial courts finding that Erwin possessed live ammunition.

C. The Contested Probation Conditions

Erwin contends the juvenile courts records should be corrected to conform to the courts oral pronouncements of the conditions of his probation. According to Erwin, when the juvenile court orally pronounced five of his probation conditions, it included the qualification knowingly, but that qualification is not included on the pre-printed form minute order setting forth those conditions, as he contends it should have been.

At the disposition hearing, the juvenile court orally pronounced the contested probation conditions on the record as follows:

15. [Y]oure not to knowingly associate with anyone disapproved of by your parent or probation officer.

15(A) [Y]oure not to knowingly participate inits in the pre-plea report he was jumped in about two years ago. Any type of gang activity.

If I find out that you have any contact with any member of the Whittier Treces street gang and I find it to be true, you will be going to camp.

Do we understand each other? . . . Do we understand each other?

The Minor: Yes.

The Court: 16, youre not to have any dangerous or deadly weapon in your possession, nor knowingly remain in the presence of any unlawfully [armed] person.

17. [Y]oure not to contact nor cause any contact or knowingly associate with the victims or witnesses of any offense alleged against you. In this case, it was a next-door neighbor. Are you guys still getting along? Is everybody still getting along with Ms. Hayeslip?

The Father: Yes.

The Court: Okay . . . . [] 21, youre not to use or possess narcotics, controlled substances, poisons, or related paraphernalia. Youre to knowingly stay away from places where users congregate. (Italics added.)

The corresponding minute order in the juvenile courts recordsa pre-printed form setting forth probation conditionsstates the contested probation conditions as follows:

15. Do not associate with [x]co-minors [x]anyone disapproved of by [x]parents [x]Probation Officer.

15A. Do not participate in any type of gang activity.

16. Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person.

17. Do not contact or cause any contact with, or associate with the victim(s) or witness(es) of any offense alleged against you.

21. Do not use or possess narcotics, controlled substances, poisons, or related paraphernalia; stay away from places where users congregate.

With the exception of condition number 16, the Attorney General disputes Erwins assertion that the contested probation conditions in the juvenile courts records should be modified to conform to the courts oral pronouncement of them. According to the Attorney General, because the record is unclear as to whether the trial court intended to modify the language of the pre-printed form from which it was reading, the language of the form controls over the courts oral pronouncements. We disagree.

The record of the August 11, 2006, disposition hearing clearly reflects the trial courts intent to modify the language of the pre-printed form by including a knowledge element. There is nothing vague or unclear about the juvenile courts intention with regard to the contested probation conditions. To the contrary, the juvenile court carefully and purposely added a knowingly qualification as to each contested condition, leaving no room for doubt as to its intent.

The juvenile courts oral pronouncements of the contested probation conditions therefore are entitled to greater credence, and control over the pre-printed language of the form minute order, which language presumably was the result of clerical error. (See People v. Smith (1983) 33 Cal.3d 596, 599 [when record is in conflict and cannot be harmonized, the part which, because of its origin or nature, is entitled to greater credence will control]; see also People v. Mesa (1975) 14 Cal.3d 466, 471 [a discrepancy between judgment orally announced and as entered in the minutes is presumably the result of clerical error].) Consequently, the juvenile courts minute order summarizing the probation conditions, as orally pronounced by the court, should be modified to conform to those pronouncements. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [courts have inherent power to correct clerical errors at any time, and appellate courts that have properly assumed jurisdiction of cases may order correction of abstracts of judgments that do not accurately reflect the oral pronouncement of judgment].)

DISPOSITION

The juvenile courts July 11, 2006, order sustaining the petition filed under Welfare and Institutions Code section 602 is affirmed in its entirety and the matter is remanded to the juvenile court with directions to correct its August 11, 2006, minute order to reflect accurately the contested probation conditions as orally pronounced by the court at the August 11, 2006, disposition hearing.

MOSK, J.

We concur:

TURNER, P. J.

ARMSTRONG, J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Section 12101, subdivision (b) states in its entirety: (b)(1) A minor shall not possess live ammunition. [] (2) Paragraph (1) shall not apply if one of the following circumstances exists: [] (A) The minor has the written consent of his or her parent or legal guardian to possess live ammunition. [] (B) The minor is accompanied by his or her parent or legal guardian. [] (C) The minor is actively engaged in, or is going to or from, a lawful, recreational sport, including, but not limited to, competitive shooting, or agricultural, ranching, or hunting activity, the nature of which involves the use of a firearm. Section 12101 contains no definition of the term live ammunition. According to the court in Khamphouy, supra, 12 Cal.App.4th 1130, however, [l]ive ammunition as contemplated by the Legislature under [section 12101, subdivision (b)] consists of any material (i.e., projectiles, shells, or bullets) in the present state of being capable of being fired or detonated from a pistol, revolver or any firearm. (See 12001, subds. (a) and (b); Random House Dict. (2d ed. 1987) p. 69; Amer. Heritage Dict. (2d college ed. 1976) p. 43.) (Id. at p. 1134.)