Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. YJ23121, Stephanie M. Davis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Steven A. Torres, 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, Assistant Attorney General, Victoria B. Wilson and Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P.J.
Appellant B.W., a ward of the juvenile court (Welf. & Inst. Code, § 602), appeals the order committing him for a period of one year to the Division of Juvenile Justice (hereinafter, the DJJ; formerly known as the California Youth Authority), following a finding that he violated the terms of his probation by possessing a firearm and by failing to submit to a search and seizure as he had been ordered to do by the court. Appellant contends that (1) his DJJ placement order should be reversed because there was insufficient evidence he possessed a dangerous or deadly weapon, (2) we should determine the adequacy of the documents produced at the Pitchess hearing (see Pitchess v. Superior Court (1974) 11 Cal.3d 531), and (3) his disposition hearing was flawed because the court failed to obtain an Individualized Education Program (IEP). We find the contentions unavailing and affirm.
FACTUAL AND PROCEDURAL SUMMARY
A petition (Welf. & Inst. Code, § 777, subd. (a)) filed by the Los Angeles County Probation Department alleged that appellant had violated the terms of his probation by his curfew violation, his possession of a firearm constituting a dangerous or deadly weapon, his failure to submit to a search and seizure, and his gang activity. Appellant denied the allegations.
Prior to trial, the court granted appellant’s motion for a Pitchess hearing to review the personnel files of the two arresting officers from the LAPD, and to obtain any complaints against the officers relating to the fabrication of evidence. The court found three arguable items pertaining to Officer Reyna and one as to Officer Gonzalez, directed the City Attorney to comply with appropriate discovery, and signed a protective order regarding the information disclosed.
As revealed at the trial on the probation violation, on May 17, 2006, at approximately 6:30 p.m., LAPD Officer Gonzalez and his partner Officer Reyna observed appellant walking with another male near the corner of 92nd Street and Hobart Boulevard. The area was within the territory of the “Rolling 90’s Neighborhood Crips” gang. As appellant and his companion walked toward the officers, appellant held his hand over his right front pants pocket. When he noticed the officers, he appeared startled and nervous, and immediately changed direction. Based on such conduct, Officer Gonzalez suspected appellant was carrying a handgun or weapon.
The officers entered their patrol car and followed appellant into an alley. When appellant saw the police car, he ran. The officers continued to follow appellant as he ran into the parking lot of a liquor store. When appellant ran past the front of the liquor store, the officer saw appellant remove from his right front pants pocket “a blue steel handgun.” Appellant threw the gun into a garbage can in front of the liquor store. Officer Gonzalez could not tell what type of weapon appellant had discarded, but he believed it was a “small caliber handgun,” based on his observation of “the bottom where the magazine would feed and then the bottom of the frame, the trigger housing, and then the forward portion of the frame.” Four or five men were standing in the parking lot, less than 15 feet from the garbage can when appellant tossed the gun into the garbage can.
Appellant continued fleeing, and the officers pursued him with their car’s siren and flashing lights on. When appellant ran back toward the direction from where he had come, the officers got out of their car, chased him, and repeatedly shouted for him to stop. When appellant once again ran to the parking lot of the liquor store, Officer Gonzalez was afraid that appellant was going back for the gun. However, appellant ran past the garbage can and went into an alley, where he finally stopped and complied with the officers’ order to get down on the ground.
After appellant’s arrest, the officers looked in the trash can but did not find the handgun or anything that could have been mistaken for a handgun. The men who had earlier been standing in the parking lot near the garbage can were gone by the time appellant ran back to the parking lot. Subsequently, appellant admitted to a probation officer that he ran from the police, but he denied having a gun.
At the trial on the probation violation, appellant presented no defense. The court found insufficient evidence of the counts alleging a curfew violation and gang activity. However, the court found by a preponderance of the evidence (see Welf. & Inst. Code, § 777, subd. (c)) that appellant had violated the terms of his probation as to the other two counts. The court found true the count alleging possession of a firearm, because it found the officer’s testimony credible that he had observed a gun in appellant’s hand. The court also found true the count alleging appellant had violated the terms of his probation that required that he submit to a search or seizure (i.e., of his person), because appellant had refused to stop in response to the lights and siren of the police car and had fled even though the officers repeatedly commanded him to stop.
DISCUSSION
I. The juvenile court properly found that appellant violated the terms of his probation.
Appellant contends the evidence was insufficient to sustain the petition as to the count alleging he violated one of the conditions of his probation, which required that he “not have any dangerous or deadly weapon in [his] possession” (condition No. 16). However, we find substantial evidence supports the finding as to this count because of appellant’s possession of a handgun.
In any event, the violation of probation is also supported by the uncontested true finding as to another term of probation--that appellant failed to submit his person to a search and seizure at any time by any law enforcement officer, with or without a warrant (condition No. 25). Thus, even if there were any merit to appellant’s contention, he could not obtain the ultimate relief sought on appeal--reversal of his commitment to the DJJ--because the commitment is still amply supported by his unchallenged violation of the search and seizure condition.
As in the present case, to change or modify a previous juvenile court order and commit a dependent minor (Welf. & Inst. Code, § 602) to a more restrictive placement, the probation violation must be established by a preponderance of the evidence. (Welf. & Inst. Code, § 777, subd. (c); In re Eddie M. (2003) 31 Cal.4th 480,485-486.) On appeal, the decision to revoke probation is reviewed for abuse of discretion. (People v. Michael W. (1995) 32 Cal.App.4th 1111, 1119.) We must not disturb a discretionary decision to revoke probation unless the record reflects a manifest miscarriage of justice. (People v. Zaring (1992) 8 Cal.App.4th 362, 378.)
As noted by appellant, under California law there are two categories of dangerous or deadly weapons. First, there are those instrumentalities that are inherently weapons, such as guns and dirks. Second, there are those instrumentalities which are not inherently weapons, but which may be used as weapons, such as razors, pocketknives, hammers, hatchets, and other sharp or heavy objects. Instrumentalities in the first category are dangerous or deadly to others in the ordinary use for which they are designed and are as a matter of law deemed dangerous or deadly weapons. When an item falls into the second category, its character as a dangerous or deadly weapon may be established when (a) the instrumentality is capable of being used in a dangerous or deadly manner, and (b) it may be fairly inferred from the evidence that its possessor intended on a particular occasion to use it as a weapon should the circumstances require. (People v. Godwin (1996) 50 Cal.App.4th 1562, 1573-1574.)
Appellant contends that there was insufficient evidence to support the finding that he violated the condition of probation that prohibited him from possessing a dangerous or deadly weapon. He urges that the evidence was insufficient because the handgun Officer Gonzalez saw him discard was not recovered and, therefore, there was no evidence that it was real, loaded, or operable. Appellant reasons that the handgun must thus be treated as if it were a mere toy gun or a starter pistol, neither of which would be deemed a dangerous or deadly weapon unless there was evidence that appellant intended to use the gun as club or bludgeon, which was not the case here. (See, e.g., People v. Godwin, supra, 50 Cal.App.4th at pp. 1572, 1574 [starter pistol]; People v. Reid (1982) 133 Cal.App.3d 354, 367 [toy gun].)
However, appellant’s reasoning is flawed. First, it is well settled that testimony by a witness who states that he saw a weapon will suffice as sufficient evidence of a weapon, even if the weapon is not recovered and the witness cannot identify the specific type or caliber of weapon. (People v. Mack (1959) 171 Cal.App.2d 631, 632; People v. Billingsley (1958) 161 Cal.App.2d 247, 250-251.) Second, appellant’s reliance on the previously cited cases involving a toy gun or a starter pistol is misplaced, because those cases dealt with the use of a weapon during a crime and not, as here, the possession of a weapon as the sole violation. In other contexts, where the issue is mere possession, courts have repeatedly held that a gun need not be loaded or even functional to be deemed a dangerous or deadly weapon. (See People v. Marroquin (1989) 210 Cal.App.3d 77, 79-82 [violation of statute prohibiting carrying a concealed weapon does not require proof of the weapon’s operability]; People v. Thompson (1977) 72 Cal.App.3d 1, 3-5 [for possession of a concealable firearm by a felon, it is unnecessary to prove that the gun was operable].)
In the present case, even absent evidence that the handgun was operable or that appellant intended to use it in the manner of a bludgeon, there was sufficient evidence that appellant possessed a dangerous or deadly weapon in violation of the terms of his probation. The officer observed appellant in possession of a blue steel handgun, and the juvenile court found the officer’s testimony credible. Moreover, appellant ran when he saw the police officers and threw the handgun away as they chased him, something he would not likely have needed to do if the gun he possessed was merely a toy or replica. When appellant ran past the garbage can where he had discarded the handgun, the officer candidly admitted he became “scared” and “nervous” because the officer had “a reasonable belief” it was a real handgun.
Accordingly, substantial evidence supports the juvenile court’s finding of appellant’s violation of the probation condition that he not possess any dangerous or deadly weapon. Appellant’s commitment to the DJJ is thus supported by the true finding as to this violation (as well as by the uncontested violation of the search and seizure condition).
II. The Pitchess motion.
Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1232.) When requested to do so by an appellant, an appellate court may independently review the transcript of the trial court’s in camera Pitchess hearing to determine whether the trial court disclosed all relevant complaints against the officer. (Id. at p. 1229.)
Pursuant to appellant’s request, to which respondent has not objected, we have reviewed the sealed transcript of the trial court’s Pitchess hearing. We conclude that there is nothing in the materials that would lead us to find an abuse of discretion by the trial court. (Id. at p. 1228.)
III. The juvenile court did not abuse its broad discretion in committing appellant to the DJJ.
Appellant contends that the juvenile court abused its discretion in committing him to the DJJ without making a more complete determination of his educational needs. Specifically, he contends the court failed to give due regard to the fact that he had learning disabilities. In view of appellant’s lengthy record of criminal activity, his previous probation violation, and his flight from a previous placement, the juvenile court reasonably concluded that a DJJ commitment would best suit appellant’s overall needs.
Appellant urges that because of the mandate in Education Code, section 56000, that “all individuals with exceptional needs have a right to participate in free appropriate public education,” the juvenile court was obligated to make its commitment determination based upon, among other factors, what would meet those needs. (See In re Angela M. (2003) 111 Cal.App.4th 1392, 1397-1399.) According to appellant, because the juvenile court did not consider his special educational needs, we should reverse the commitment and direct that the juvenile court obtain an IEP through the appropriate school district, and then hold a new disposition hearing based on the results of the IEP and whether appellant’s educational needs could be met in the DJJ.
A juvenile court’s decision to commit a minor to the DJJ is reviewed for abuse of discretion, “indulging all reasonable inferences to support the juvenile court’s decision.” (In re Angela M., supra, 111 Cal.App.4th at p. 1396.) Welfare and Institutions Code section 725.5 requires that the court consider these factors in determining whether to commit a juvenile to the DJJ: the age of the minor, the circumstances and gravity of the offense, the previous delinquent history, and other relevant and material evidence. The juvenile court is not required to discuss specifically each of these factors in making its decision, and it is sufficient if the record reflects that they were, in fact, considered. (In re John F. (1983) 150 Cal.App.3d 182, 185.) Moreover, to commit a minor the DJJ the juvenile court must be satisfied that the “mental and physical condition and qualifications of the ward are such as to render it probable that he will be benefited by the reformatory educational discipline or other treatment provided . . . .” (Welf. & Inst. Code, § 734.)
In the present case, in 2003 at the age of 13, appellant was charged in a delinquency petition with possession of a firearm and possession of live ammunition, admitted the firearm allegation, was declared a ward of the court, and placed in a camp and ordered to obey specified terms and conditions of probation. In 2004 at the age of 14, appellant admitted a charge of possession of a dirk or dagger, the offense was declared a misdemeanor, and he was again committed to a camp placement. In 2005 at the age of 15, appellant admitted allegations of evading an officer with willful disregard and driving while under the influence of alcohol or drugs, and he was again placed in camp and ordered to obey specified terms and conditions of probation. Also in 2005, appellant admitted a probation violation (i.e., a gang-related fight), he was declared a continuing ward of the court and ordered suitably placed at a camp and under specified terms and conditions of probation. Two months later, after fleeing from a court appearance, appellant was arrested on the charges that are the subject of the present appeal.
It is thus apparent that appellant was been given opportunities in less restrictive placements, but was unable to improve his behavior. During his last camp stay, his evaluation concluded that he “has continued to make little or no progress in the program” and engaged in “negative behavior and disruptiveness.”
At the disposition hearing herein, the juvenile court stated that it was “intimately familiar” with appellant’s social and personal history, and found that appellant was simply “unwilling at every turn” to accept treatment. The court remarked it had “reviewed the entire file,” and was thus aware of the psychologist’s recommendation of an evaluation for an IEP upon which appellant relies. The court also indicated it was “aware of the programs that are available in the youth authority,” and specifically found that “the mental and physical conditions and qualifications of this minor render it probable that he will benefit from the reformatory discipline or other treatment provided by the Division of Juvenile Justice.”
In contrast to the situation in Angela M., supra, 111 Cal.App.4th at page 1399, upon which appellant mistakenly relies, there is no need here for a more fully developed record because the juvenile court’s finding was based on an adequate consideration of appellant’s needs. The juvenile court committed appellant to the DJJ after carefully considering appellant’s mental and physical condition and qualifications, his legal history, the lack of family support, and his failure to benefit from and resistance to previous placement efforts. The court also was aware of and considered the programs available at the DJJ, and the DJJ is required to assess appellant’s educational needs upon his commitment. (Welf. & Inst. Code, § 1120, subd. (b).)
Accordingly, the juvenile court did not abuse its broad discretion in committing appellant to the DJJ. (See In re Angela M., supra, 111 Cal.App.4th at pp. 1396-1397.)
DISPOSITION
The order under review is affirmed.
We concur: DOI TODD, J., CHAVEZ, J.