In re J.C.

Filed 5/16/06  In re J.C. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kern County.  H. A. Staley, Judge. 

            Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Leslie W. Westmoreland, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

            On June 3, 2005, a petition was filed pursuant to Welfare and Institutions Code section 602 alleging that appellant, J. C., carried a loaded and concealed firearm on his person without a permit (Pen. Code, §  12031, subd. (a)(2)(F), count one).^[1]  The petition further alleged that J. feloniously possessed a firearm in violation of a probation condition (§  12021, subd. (d)(1), count two), possessed a concealable firearm without written parental permission, a misdemeanor (§  12101, subd. (a)(1), count three), publicly carried a loaded firearm on his person, a misdemeanor (§  12031, subd. (a), count four), was in receipt of stolen property (§  496, count five), resisted arrest (Pen. Code, §  148, subd. (a)(1)), count six), and violated his probation (Welf. & Inst. Code, §  777, subd. (a)(2), count seven).  After a contested hearing on July 14, 2005, the juvenile court found all the allegations true except for count five, the receiving stolen property allegation. 

            At the conclusion of the July 28, 2005, dispositional hearing, the juvenile court continued J.'s wardship and committed him to the Kern Crossroads Facility.  The court found J.'s maximum term of confinement was eight years four months and granted applicable custody credits. 

            On appeal, J. contends there was insufficient evidence of count one because there was a missing element not shown by the prosecution.  J. further contends his conviction on count four must be reversed because it is a lesser offense of count one, the court's aggregation of time on two counts violates section 654, and the juvenile court failed to make a finding whether wobbler offenses were felonies or misdemeanors.

FACTS

            On April 13, 2005, Probation Officers Brian Wegis and John Sanchez went to appellant's home to conduct a probation search and to execute an arrest warrant.  As the officers approached the front of appellant's home from the west, appellant and two others next to him ran from the alley toward the house.  Wegis ran to one side of the house to prevent appellant from running over that side of the fence.  Sanchez went to the other side of the house.  When Wegis looked over the back fence, he saw appellant climbing over the back fence toward the alley side of the house.  Wegis ordered appellant to stop.  Appellant looked toward Wegis and went over the fence.

            Wegis ran to the south side of the home toward the alley to assist the other officers.  Sanchez chased appellant east through the back yard toward the back fence.  Sanchez was one or two feet behind appellant as appellant jumped over the fence.  As Sanchez reached the top of the fence, appellant landed on the other side.  Another person, Trevon C., went over the fence seconds later 10 to 15 feet away from where appellant had jumped.

            Sanchez looked down and saw a black .38-caliber revolver lying directly below where appellant had landed.  The gun was two feet from the fence.  Sanchez retrieved the revolver, which was loaded and operational.  Appellant was located 30 minutes later hiding under a bed in a nearby residence.

            Two others were also arrested, William J. and Erin F.  Wegis secretly recorded them talking in his vehicle.  They admitted possessing the firearm.

            Appellant was on probation.  One condition was a prohibition against possession of any weapon.  Appellant's mother testified that she never gave appellant written permission to possess a concealable firearm.  Appellant's father is deceased.

            Appellant testified, admitting that when he and his friends saw a probation officer coming down the street they ran from the alley to his back yard.  Appellant asserted that earlier in the day Erin F. and Trevon C. were talking about the pistol and about letting appellant hold it.  Appellant denied seeing it.

            According to appellant, he only saw Trevon C. in his back yard.  Trevon was holding a white T-shirt and pacing back and forth.  Appellant admitted that when his probation officer addressed him, he jumped over the fence.  Appellant denied possessing the pistol.  Appellant admitted running to a neighbor's house and hiding under the bed.  Appellant acknowledged he was aware that he was not to possess a firearm as a condition of his probation.

SUFFICIENCY OF EVIDENCE OF COUNT ONE

            Appellant contends there was insufficient evidence adduced at the hearing that he violated section 12031, subdivision (a)(2)(F).^[2]  Specifically, appellant argues that the prosecution failed to submit evidence that he failed to register with the Department of Justice pursuant to section 11106.^[3]

            The test for determining sufficiency of the evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.  On appeal, we view the evidence in the light most favorable to the People.  We presume in support of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence.  We must ensure the evidence is reasonable, credible, and of solid value.  It is the exclusive province of the trier of fact to determine the credibility of witnesses and the truth or falsity of the facts on which that determination depends.  If the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and we do not substitute our evaluation of a witness's credibility for that of the fact finder.  (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

            The parties concur that the elements of section 12031, subdivision (a)(2)(F) are carrying a loaded firearm on one's person or in a vehicle, with knowledge of the presence of the firearm, and failure to register ownership of the firearm with the Department of Justice.  Respondent concedes the third element was not shown here, but argues that as a matter of law, appellant could not be a registered owner of the firearm because he is a minor. 

            Section 12072, subdivision (a)(3)(A) states:  â€