In re William W.

Filed 1/12/07  In re William W. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

            APPEAL from a judgment of the Superior Court of Kern County.  Peter A. Warmerdam, Juvenile Court Referee.

            Harry Zimmerman, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Stan Cross, Acting Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

            On September  5, 2005, William  W., who was 17 years old at the time, shot and killed another minor while brandishing what he thought was an unloaded rifle.  He was charged as a juvenile with involuntary manslaughter (Pen. Code, §  192, subd. (b)), and it was alleged he had personally used a firearm in the commission of the offense (Pen. Code, §  12022.5, subd. (a)).  William admitted the charge and the enhancement allegation.  He was adjudged a ward of the juvenile court (Welf. & Inst. Code, §  602, subd. (a))^[1] and committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Facilities (formerly the Department of the Youth Authority) (CYA).  William contends on appeal, principally, that the court abused its discretion in committing him to CYA.  We agree and will reverse.

FACTS AND PROCEEDINGS

            William lived with his father in Bakersfield; his mother and two siblings lived in Texas.  William's father, in addition to his regular employment, worked as a gunsmith in his spare time and so had several guns in the house, which he kept locked in a hall closet or in a gun safe in the garage.  William knew where the key to the closet was kept, but his father had forbidden him to take the guns out when the victim or his brother were present at the house.  William was familiar with guns and had attended a gun safety class. 

            Monday, September 5, 2005, was Labor Day and a school holiday.  William was home by himself that day, and had taken a .22-caliber rifle and a 20-gauge shotgun from the hall closet.  That afternoon, an eight-year-old boy named Daniel came to house, as he often did, followed later by Daniel's 15-year-old brother, Brian.  William was showing them the guns when, under circumstances that are not altogether clear, he pointed the rifle at Daniel at close range and, after telling him it was not loaded, pulled the trigger.  The bullet entered Daniel's head near his right eye, and killed him instantly.  Brian, who had heard but not witnessed the shooting, called 911.

            Under questioning by the police, William initially was evasive and untruthful in describing the shooting, but eventually led them to the rifle (which he had disassembled and returned to the hall closet) and admitted his responsibility.  He insisted, however, he had believed the gun was not loaded, and that the shooting was an accident.

            A wardship petition charged William with involuntary manslaughter in that he had killed a human being, without malice, in the course of an unlawful act, not amounting to a felony, committed without due caution and circumspection, to wit: brandishing a firearm in a rude, angry, or threatening manner (Pen. Code, §  417, subd. (a)(2)).  The petition also alleged William had personally used a firearm in the commission of the offense.^[2]

            William admitted the charge and the enhancement allegation.  The matter was set for a disposition hearing in October, but the hearing was continued until January of 2006, at William's request, so he could undergo two psychological evaluations.^[3]

Dr. Haddock's Report

            In a report dated October 12, 2005, McCoy Dean Haddock, Psy.D., described William as a normal 17-year-old boy, of above-average intelligence, suffering from mild anxiety and depression.  Dr. Haddock recommended that William be given â€