Opinion
A148632
01-25-2017
In re CESAR V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CESAR V., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. J43329)
Appellant Cesar V. appeals after the juvenile court sustained allegations, in a juvenile wardship petition, of felony possession of a firearm by a minor and misdemeanor possession of live ammunition by a minor. (See Welf. & Inst. Code, § 602.) On appeal, appellant contends the juvenile court erred in failing to apply Penal Code section 654 when it calculated his maximum term of confinement for the possession of a firearm and possession of live ammunition counts, where both offenses arose from his sole objective to possess a loaded gun. We agree, and shall therefore modify the maximum term of confinement to stay the one-year term for possession of live ammunition by a minor.
All further statutory references are to the Penal Code unless otherwise indicated.
PROCEDURAL BACKGROUND
On April 1, 2016, a juvenile wardship petition was filed, pursuant to Welfare and Institutions Code section 602, charging appellant with felony possession of a firearm by a minor (§ 29610—count 1), and misdemeanor possession of live ammunition by a minor (§ 29650).
Appellant had previously been adjudged a ward of the juvenile court on February 24, 2016, after he admitted to carrying a loaded firearm (§ 25850, subd. (a)), and resisting a police officer (§ 148, subd. (a)(1)). --------
On April 25, 2016, following a contested hearing, the court sustained the allegations in the petition.
On May 9, 2016, the court continued appellant as a ward of the court and placed him in the custody of his parents, after first committing him to juvenile hall for 100 days. The court set a maximum term of confinement of four years.
On June 15, 2016, appellant filed a notice of appeal.
FACTUAL BACKGROUND
On the afternoon of March 31, 2016, Fairfield Police Officer Christie Cummins was dispatched to Parkway Gardens in Fairfield, where she smelled a strong odor of marijuana coming from a vehicle. As she approached the vehicle, Cummins saw four people inside, including appellant, who was sitting in the rear of the vehicle. When she asked the vehicle's occupants to produce identification, appellant produced a student identification card. After checking with dispatch, Cummins learned that appellant was on active juvenile probation, pursuant to which he was subject to search.
Cummins removed each occupant from the vehicle individually. After removing appellant, she placed him in handcuffs and escorted him to a patrol vehicle. She asked whether he had anything illegal on him, and he responded in the affirmative. When she asked where, he gestured to his right. She therefore performed a pat search on him, during which she felt a bulge in his right front pocket. Cummins reached into his pocket and located a Colt revolver, which was loaded with six rounds of .32 caliber live ammunition.
DISCUSSION
Appellant contends the juvenile court erred in failing to apply section 654 when it calculated his maximum term of confinement based on the sentences for both possession of a firearm by a minor and possession of live ammunition by a minor, where both offenses arose from his objective to possess a loaded gun.
As a preliminary matter, respondent asserts that because appellant was released to the custody of his parents, the juvenile court was not authorized to calculate a maximum term of confinement. (See Welf. & Inst. Code, § 726, subdivision (d)(1) ["If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welf. & Inst. Code, § ] 602 the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court"].)
The record shows that the court here did order appellant placed in the custody of his parents. It also found, however, that appellant had been tried on probation in the custody of his parents and had failed to reform, and therefore committed him "forthwith" to the Solano County Juvenile Hall for 100 days. We agree with appellant that subdivision (d)(1) of Welfare and Institutions Code section 726 does apply here because appellant was removed from the physical custody of his parents when he was committed to juvenile hall for 100 days. That he was ordered to be placed with his parents thereafter does not change the fact that he was removed from their physical custody as a result of the order of wardship. The court was therefore required to calculate a maximum term pursuant to Welfare and Institutions Code section 726, subdivision (d). (Compare, e.g., In re Matthew A. (2008) 165 Cal.App.4th 537, 539, 541 [where court placed minor at home on probation, it erred in setting a maximum term of confinement pursuant to former Welf. & Inst. Code, § 726, subd.(c) (now subd. (d)].)
Turning now to appellant's contention on appeal, at the dispositional hearing, over defense counsel's objection, the trial court found that appellant's possession of the gun and possession of the ammunition constituted two separate acts for purposes of section 654, and set a maximum term of confinement of four years, including three years for the gun possession and one year for the possession of live ammunition. (See § 29700.)
Section 654, subdivision (a), provides in relevant part: " '[A]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.' " As our Supreme Court has explained: " ' " 'Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.' " ' [Citation.] Intent and objective are factual questions for the trial court, which must find evidence to support the existence of a separate intent and objective for each sentenced offense. [Citations.]" (People v. Jackson (2016) 1 Cal.5th 269, 354; accord, People v. Atencio (2012) 208 Cal.App.4th 1239, 1242 ["Whether section 654 applies to the facts in a given case is one of fact for the trial court to decide, and such findings will be upheld on appeal if there is any substantial evidence to support them"].)
In People v. Lopez (2004) 119 Cal.App.4th 132, 138, a case nearly identical to the present one, the appellate court found that the trial court had improperly imposed separate sentences for the offenses of unlawful possession of a firearm and unlawful possession of ammunition. The court explained: "While possession of an unloaded firearm alone can aid a person committing another crime, possession of ammunition alone will not. The former may be used as a club and a victim may be fearful that the firearm is loaded. While the latter may be thrown at a victim, it is extremely unlikely that possession of bullets alone would scare anyone but the most timid. In combination, however, the mixture is lethal and that is why criminals have a penchant for loaded firearms. [¶] The Legislature has wisely declared that specified people should not possess firearms and/or ammunition. The obvious legislative intent is to prohibit these persons from combining firearms with ammunition. Appellant's obvious intent was to possess a loaded firearm. [¶] In resolving section 654 issues, our California Supreme Court has recently stated that the appellate courts should not 'parse[] the objectives too finely.' [Citation.] To allow multiple punishment for possessing ammunition in a firearm would, in our judgment, parse the objectives too finely. While there may be instances when multiple punishment is lawful for possession of a firearm and ammunition, the instant case is not one of them. Where, as here, all of the ammunition is loaded into the firearm, an 'indivisible course of conduct' is present and section 654 precludes multiple punishment." (Lopez, at p. 138, quoting People v. Britt (2004) 32 Cal.4th 944, 953; cf. People v. Atencio, supra, 208 Cal.App.4th at p. 1244 [section 654 barred punishment for both grand theft of a firearm and possession of a firearm by a felon where defendant had only one of objective in that his "theft of the pistol was merely the means by which he gained possession of the pistol"].)
The reasoning of the Lopez court applies directly to the present case. At the dispositional hearing, appellant's counsel cited Lopez, but the juvenile court seemed to believe the fact that appellant is a minor distinguished his situation from that of the defendant in Lopez, noting that "adults can legally possess ammunition and minors cannot." We agree with appellant that there is no basis to distinguish the adult defendant in Lopez from appellant on that ground. Certain categories of people, such as minors and felons, are prohibited from possessing ammunition. (See Lopez, supra, 119 Cal.App.4th at p. 134 [defendant was convicted of unlawful possession of ammunition under former section 12316 (now section 30305—possession of ammunition by persons prohibited from owning or possessing a firearm)].) Moreover, the reasoning of the Lopez court—that section 654 applied because the defendant's sole objective was to unlawfully possess a loaded firearm—is equally applicable here. (Lopez, at p. 138.)
We conclude substantial evidence does not support the juvenile court's finding that appellant had "a separate intent and objective for each sentenced offense." Instead, for the reasons discussed, section 654 precludes punishment for both the firearm possession and the ammunition possession. (See People v. Jackson, supra, 1 Cal.5th at p. 354.) The maximum term of confinement must therefore be reduced to three years.
DISPOSITION
Appellant's maximum term of confinement is modified to stay the one-year term for possession of live ammunition by a minor and to reflect that his maximum term for both offenses is three years. As modified, the order appealed from is affirmed.
/s/_________
Kline, P.J. We concur: /s/_________
Richman, J. /s/_________
Stewart, J.