In re Sean M

Filed 3/28/06 In re Sean M. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION TWO

Defendant appeals from the juvenile court's finding that allegations in the petition (Welf. & Inst. Code, § 602) charging him with possessing an assault weapon (Pen. Code, § 12280, subd. (b))^[1] and with misdemeanor resisting arrest (§ 148, subd. (a)(1)) were true. The court also found true a lesser included misdemeanor violation of carrying a loaded firearm (§ 12031, subd. (a)(1)).

On appeal, defendant contends substantial evidence does not support the finding he possessed an assault weapon. We conclude that the evidence supports a finding that he knew or reasonably should have known that the firearm was an assault weapon and we therefore affirm the lower court's judgment.

BACKGROUND

On April 22, 2005, a petition under Welfare and Institutions Code section 602 charged defendant in count 1 with possessing an assault weapon (§ 12280, subd. (b)), in count 2 with carrying a loaded stolen firearm (§ 12031, subd. (a)(2)(B)), and in count 3 with misdemeanor resisting arrest (§ 148, subd. (a)(1).

The juvenile court held a contested jurisdictional hearing and heard the following evidence. About 12:36 a.m. on April 20, 2005, Police Officer Amy Bublak was a passenger in a marked patrol car driven by Officer Nay. Bublak observed a vehicle, which appeared to have four people in it, speeding; she also saw the car run a stop sign. The officers pursued the vehicle, which abruptly stopped. The officers' car stopped 20 to 30 feet behind the speeding vehicle.

The officers watched defendant exit the vehicle and face the officers, as the car with the other three people drove away. Bublak recognized defendant from previous contacts with him. Defendant had a long metal object in his right hand, and Bublak heard a metal object striking the pavement as defendant moved. Defendant ran to the front of a nearby parked vehicle; he then bent down out of the officers' sight.

Defendant stood up and ran to a residence. Nay ordered defendant to stop and to show his hands, but defendant entered the residence. The officers went to the residence and defendant's grandmother allowed them to search the residence. The officers did not find defendant in the house.

Bublak looked under the parked car where defendant had bent down. She found an assault weapon with an attached magazine. The firearm was about 26 and one-half inches long and had fresh scratch marks.

Officer Darryl Kimura described the rifle as an FEG brand, model SA85M, caliber 7.62 by 39 millimeters. This caliber was stamped on the rifle and the ammunition. The barrel was 16 inches. The gun was loaded and had a live round in the chamber and 23 rounds in the neck. The gun was a gas-operated, centerfire, semiautomatic rifle. It had a magazine detachable by a lever release. A pistol grip that was about five or six inches long was under the rifle's action. Kimura stated the gun was a clone or exact match of an AK47, but made by a different manufacturer. â€