Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. OJ188546
Jones, P.J.
The juvenile court adjudicated N.J., (the minor) a continued ward of the court, in part because it found he possessed an assault weapon in violation of Penal Code section 12280, subdivision (b) (hereafter section 12280(b)). On appeal, the minor’s sole contention is that there is insufficient evidence to establish he knew or should have known the firearm was an assault weapon under section 12280(b). We affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In a Welfare and Institutions Code section 602 petition filed on May 14, 2007, and later amended on May 31, 2007, and June 5, 2007, the People alleged the minor possessed an assault weapon (§ 12280, subd. (b)), possessed a firearm capable of concealment on a person (§ 12101, subd. (a)(1)), carried a loaded firearm in a public place or street (§ 12031, subd. (a)(1)), possessed a firearm without a license (§ 12025, subd. (a)(2)), and resisted arrest (§ 148, subd. (a)(1)).
In connection with a Welfare and Institutions Code section 602 petition filed April 11, 2006, the minor admitted possessing a firearm capable of being concealed on a person (§ 12101, subd. (a)(1)) and vehicle theft (§ 10851).
The juvenile court held a contested jurisdictional hearing and heard the following evidence. At approximately 11:00 p.m. on May 10, 2007, Oakland Police Officers Mario Castro and Frank Lopez drove to the 2900 block of 76th Avenue to investigate a report of a suspicious person. As Castro turned the patrol car onto 76th Avenue, he and Lopez saw a four-door Buick parked with its front passenger door open. The car was empty and the minor stood by himself in the “v” of the open passenger door. Another person stood on the passenger side of the car; three other individuals were “hanging around behind the car.” The car was not registered to the minor.
Both officers saw the minor holding a “medium-sized” or “big object” that was “heavy” and “dark in color.” Lopez was not sure what the object was because he was focused on the minor’s face, not on what was in his hands. When Castro saw the object, he estimated that it was approximately 16 inches by 14 inches and equivalent in size and shape to a firearm. When the minor made eye contact with the officers, he looked “surprised” and tossed the object toward the front passenger seat of the car. Seconds later, as the patrol car pulled up to the Buick, the minor and another young man ran away.
Castro got out of the patrol car and looked into the Buick, where he saw a Mac-10 — which resembles an “Uzi style” machine gun — in the front passenger seat of the car. The only other objects in the car were a cell phone and a cigarette lighter. The gun had a detachable magazine; when Castro found the gun, the magazine was attached and contained 14 live rounds of .45 caliber bullets. Castro put the Mac-10 in the trunk of the patrol car. He and Lopez then pursued the minor and eventually arrested him. An Oakland Police Department evidence technician was unable to obtain any fingerprints from the Mac-10 because the gun and the magazine were “very oily.”
The court found true, as charged, that the minor possessed an assault weapon (§ 12280, subd. (b)), carried a loaded firearm in a public place or street (§ 12031, subd. (a)(1)) and resisted arrest (§ 148, subd. (a)(1)). The court dismissed the remaining allegations. At the dispositional hearing, the court adjudged the minor a continued ward of the court and ordered him to attend a juvenile camp for a maximum term of confinement of four years and eight months.
The minor filed a timely notice of appeal.
DISCUSSION
The minor contends there is insufficient evidence to sustain the juvenile court’s finding that he possessed an assault weapon within the meaning of section 12280(b) because the prosecution “neglected to present any evidence on the necessary element of knowledge.”
“When reviewing a claim of insufficient evidence, we examine the entire record in the light most favorable to the prosecution to determine whether it contains reasonable, credible and solid evidence from which the jury could find the defendant guilty beyond a reasonable doubt. If the circumstances reasonably justify the verdict, we will not reverse simply because the evidence might reasonably support a contrary finding. This standard applies to cases based on circumstantial evidence. [Citation.]” (In re Daniel G. (2004) 120 Cal.App.4th 824, 830 (Daniel G.).) “The testimony of just one witness is enough to sustain a conviction, so long as that testimony is not inherently incredible. [Citation.]” (Daniel G., supra, 120 Cal.App.4th at p. 830.)
Section 12280(b) provides in pertinent part, “Any person who, within this state, possesses any assault weapon, except as provided in this chapter, shall be punished by imprisonment in a county jail for a period not exceeding one year.” To establish a violation of section 12280(b), the People must prove the minor possessed an assault weapon. The People also must establish the minor “knew or reasonably should have known the firearm possessed the characteristics bringing it within the [Assault Weapons Control Act].” (In re Jorge M. (2000) 23 Cal.4th 866, 887 (Jorge M.), original italics, fn. omitted.)
Sections 12276, 12276.1, and 12276.5 define assault weapons in three ways. Section 12276 defines “designated semiautomatic rifles, pistols and shotguns by type, series and model.” (Jackson v. Department of Justice (2001) 85 Cal.App.4th 1334, 1340 (Jackson).) Section 12276.1 defines an assault weapon “generically, as a semiautomatic rifle, pistol or shotgun that possesses one or more of a variety of specified features.” (Jackson, supra, 85 Cal.App.4th at p. 1340.) Finally, section 12276.5 provides a procedure whereby the court, upon the request of the Attorney General, declares certain firearms “assault weapons.” (Jackson, supra, 85 Cal.App.4th at p. 1340; see also 2 Witkin, Cal. Crim. Law 3d (2000) Crimes Against Public Peace and Welfare, §§ 163-164, pp. 687-688.) In the operative Welfare and Institutions Code section 602 petition, the People alleged the minor possessed a Mac-10 listed in section 12276, subdivision (b)(3)(a). In the court below, the minor did not contend the Mac-10 was not an assault weapon.
As our Supreme Court explained in Jorge M., “[t]he question of . . . knowledge . . . is, of course, for the trier of fact to determine, and depends heavily on the individual facts establishing possession in each case. . . . [T]he Legislature presumably did not intend the possessor of an assault weapon to be exempt from the [Assault Weapons Control Act]’s strictures merely because the possessor did not trouble to acquaint himself or herself with the gun’s salient characteristics. Generally speaking, a person who has had substantial and unhindered possession of a semiautomatic firearm reasonably would be expected to know whether or not it is of a make or model listed in section 12276 or has the clearly discernable features described in section 12276.1. At the same time, any duty of reasonable inquiry must be measured by the circumstances of possession; one who was in possession for only a short time, or whose possession was merely constructive, . . . may have a viable argument for reasonable doubt as to whether he or she either knew or reasonably should have known the firearm’s characteristics.” (Jorge M., supra, 23 Cal.4th at pp. 887-888.)
Relying on this language from Jorge M, the minor contends his “alleged possession” of the Mac-10 was so “fleeting and attenuated” that he did not have time to examine the gun and determine whether it constituted a prohibited assault weapon. We disagree. It is well-settled that “[p]ossession of a weapon may be proven circumstantially, and possession for even a limited time and purpose may be sufficient. [Citation.]” (Daniel G., supra, 120 Cal.App.4th at p. 831.) And “because of the general principle that all persons are obligated to learn of and comply with the law, in many circumstances a trier of fact properly could find that a person who knowingly possesses a semiautomatic firearm reasonably should have investigated and determined the gun’s characteristics.” (Jorge M., supra, 23 Cal.4th at p. 885.)
Here, sufficient circumstantial evidence established the minor possessed the Mac-10 and knew or should have known it was a prohibited assault weapon. The officers saw the minor standing inside the open door of the Buick, holding a “medium-sized” or “big object” that was heavy and “dark in color.” Although Lopez was not sure what the object was, Castro thought the object was of a size and shape that resembled a firearm. And both officers saw the minor toss the object into the front passenger seat of the car, the very place where Castro found the Mac-10. Moreover, the size and shape of the object the minor tossed was not at all consistent with the other objects — a very small cell phone and a cigarette lighter — found in the car. Significantly, the minor abandoned the gun and fled, suggesting an awareness that the gun was an assault weapon.
The minor’s attempt to distinguish Jorge M. — where the court concluded there was sufficient evidence the minor knew or should have known the firearm was a prohibited assault weapon — is unavailing. In Jorge M., the police found a rifle “resting on a cabinet a few feet from the bed the minor said was his.” (Jorge M., supra, 23 Cal.4th at p. 888.) The rifle had a detachable magazine and the words “Russia SKS-45” either printed or engraved on it. (Ibid.) The California Supreme Court concluded this evidence was “sufficient for a reasonable trier of fact to find beyond a reasonable doubt that the minor’s possession of the rifle, whether sole or joint, was such that he knew or should have known it was an ‘SKS with detachable magazine’” listed in section 12276, subdivision (a)(11). (Jorge M., supra, 23 Cal.4th at p. 888.)
The minor argues that, unlike the gun at issue in Jorge M., the Mac-10 did not have a model number engraved on it. And without a model number, the minor contends he could not determine whether “the weapon had any obvious characteristics of an assault weapon. . . .” We are not persuaded. This is not one of those “exceptional cases in which the salient characteristics of the firearm [were] extraordinarily obscure. . . .” (Jorge M., supra, 23 Cal.4th at p. 885.) Castro and Lopez saw the minor holding the Mac-10 with two hands, suggesting that it was heavy. The gun had a detachable magazine, resembled an Uzi-style machine gun, and was much larger than a mere handgun. In addition, the People introduced into evidence the Mac-10, the detachable magazine, and the 14 live rounds of .45 caliber bullets found in the magazine. And the court examined and held the gun, describing it as “very very heavy.” The court could readily determine whether the “salient characteristics of the firearm” were, or — as in this case — were not, “extraordinarily obscure.”
The minor also contends the evidence here does not rise to the level of that in Daniel G. where the appellate court concluded there was sufficient evidence the minor should have known the rifle was a prohibited assault weapon because he “had control and therefore actual possession of the weapon and was seen at least once pointing it.” (Daniel G., supra, 120 Cal.App.4th at p. 832.) The minor argues he was unable to examine the Mac-10 and determine whether it was an assault weapon because he spent “a mere few seconds” holding the gun and was not seen pointing it. Although the police officers saw the minor holding the gun for only a few seconds before he threw it in the car, the record contains no evidence that the minor had just picked up the gun when the police saw him. And, as noted above, “possession [of a firearm] for even a limited time . . . may be sufficient” to enable an individual to examine the gun and determine whether it is an assault weapon. (Id. at p. 831.) Here, the minor gripped the Mac-10 with both hands — which suggests he knew it was a machine gun and knew how to use it — and tossed it into the passenger seat of the car.
We conclude the minor had sufficient time to examine the gun before he threw it in the car and knew, or should have known, the gun was an assault weapon. Accordingly, substantial evidence supports the juvenile court’s finding that the minor violated section 12280(b) by possessing a prohibited assault weapon.
DISPOSITION
The jurisdictional order and the dispositional order are affirmed.
We concur: Simons, J., Needham, J.