Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD07113
RAYE, Acting P. J.The minor, Benjamin N., appeals from a dispositional order entered after the juvenile court sustained allegations the minor committed burglary (count 1) and four grand thefts (counts 2-5). All of the crimes occurred on one occasion, when a single burglary resulted in the taking of several firearms. We shall strike the findings in counts 3 to 5, because taking multiple firearms on one occasion constitutes only one grand theft. We shall reject the minor’s claim that no substantial evidence shows any of the guns taken were proven to be a “firearm.” We shall also reject the minor’s claim that a prejudicial violation of his confrontation clause rights took place. We shall modify the judgment and otherwise affirm.
FACTS
The minor visited a former girlfriend to distract her while other boys or young men took guns from her father’s gun locker. The theft was discovered and all of the guns were recovered that same day.
Robert Fox testified he kept guns in a padlocked locker in his attached garage in Winters. On February 19, 2007, his daughter Alicia called him at work to tell him his guns had been stolen. When he arrived home, Mr. Fox found his guns and ammunition were missing from the locker.
Based on information he received on the telephone, Mr. Fox first went to the Smith house, where Mrs. Smith told him Danny L. had borrowed her son’s car. Mr. Fox then went to the minor’s house and told the minor that if he returned the guns he would not pursue the matter. The minor’s “reaction was kind of stunned” and he denied involvement; the minor’s father then became belligerent. After Mr. Fox left the minor’s house, Mr. and Mrs. Smith flagged him down and showed him that some of his guns and ammunition were in the trunk of their son’s car. A “.50 caliber black-powder rifle [and a] pellet gun/pistol” were still missing, as well as at least one box of ammunition.
Armando L., a friend of the Smiths’ daughter, made two telephone calls. After the first call he left and returned with the missing pellet gun, and after the second call he left and returned with a “.50 caliber muzzle loader.”
Mr. Fox telephoned the minor and asked for the missing keys to a handgun case. The minor denied having them, but “[a]bout 20 minutes later they showed up in” Mr. Fox’s mailbox.
Mr. Fox described the guns, apart from “the.50 caliber rifle and the pellet-gun pistol,” as follows: “My.338 Magnum hunting rifle was stolen, my 10/22 rifle was stolen, I think my –- sorry, pump-action BB gun was stolen. [¶] The two BB guns are collectors, and my 1943 Steyr was missing, too.”
Mr. Fox’s son testified he thought the guns were taken on President’s Day, but that school was in session. The minor came over to the Fox home and watched television, then the minor and the Fox children went to the park. When the children returned to the Fox home, the minor stayed for a short time, then left.
Alicia Fox testified she used to date the minor. The minor and the Smiths’ son came to her house, then the three left; she and the minor went to the park and the Smiths’ son went to see his girlfriend. At the park the minor told her “we had to stay at the park or something, because he was waiting for a phone call while we were at the park.” After 30 to 45 minutes she went back home. The minor arrived and “was kind of like pacing back and forth,” “like freaking out like something was the matter. And then he said he had to go.” Alicia spoke on the phone to Matt C., and in response checked the garage and found the locker was open and the guns were gone. The locker had been closed that morning. She called her father. After she and her father left the minor’s house because of the minor’s father’s belligerence, the Smiths drove up and reported that they had found guns in their son’s car. The Smiths’ daughter and her friend Armando made a call and returned with a missing gun. Mr. Fox called the minor and asked for his keys back, and about 20 minutes later the keys “showed up.”
Mrs. Smith testified she loaned her son’s car to Danny L. that day and he returned about five minutes later. About five to ten minutes after that, Mr. Fox arrived and demanded his guns. After Danny L. returned the car but before Mr. Fox arrived, Mrs. Smith saw the minor walk by her house. After Mr. Fox left, the minor called Mrs. Smith and told her the guns were in her son’s car. Mr. and Mrs. Smith found the guns, drove to find Mr. Fox, and showed him the guns. Mr. Fox announced that a gun was missing, so Mrs. Smith’s daughter made a call, and twice she and her friend Armando left and returned with guns.
Mrs. Smith’s daughter testified that when Mr. Fox first arrived to ask for his guns, the minor was in the Smith house, apparently without her mother’s knowledge. Later, when Mr. Fox said some guns were missing, her friend Armando made a call, then she and Armando drove to meet the minor by the park and he gave them a handgun. When Mr. Fox said another gun was missing, Armando made another call and they went to meet Danny L., who gave them a long gun. Earlier that day, Armando, Danny L., and the minor had been at her house. She saw the minor drawing a map or a house plan, and they were saying “something about a gun.”
The minor testified he did not tell Mrs. Smith where the guns were and knew nothing about the theft. Armando and Danny have the same last name, and the minor was “pretty sure” they are related.
Based on this evidence, the juvenile court dismissed two counts of conspiracy but sustained one count of burglary and four counts of grand theft. After the minor was continued as a ward at the dispositional hearing, he timely filed this appeal.
DISCUSSION
I. Grand Theft
The minor raises three overlapping claims regarding grand theft. He contends (1) no substantial evidence shows that any firearms, as defined by statute, were stolen; (2) the trial court should have dismissed the grand theft charges at the close of the People’s case; and (3) it was improper for the People to charge each firearm theft as a separate count. We agree with the last contention and conclude that because substantial evidence shows at least one object taken qualifies as a firearm, we may uphold a single count of grand theft (count 2). The remaining findings of grand theft (counts 3-5) must be stricken.
A. Aggregating Firearm Thefts
A theft becomes grand theft in three general ways. If the value of the goods taken exceeds a certain dollar amount, $400 generally or $100 for specific types of property, the crime is grand theft. (Pen. Code, § 487, subds. (a) & (b).) If the goods are taken “from the person of another,” the crime is grand theft. (Pen. Code, § 487, subd. (c).) Finally, if the goods are of a specific type listed by statute, including “[a] firearm,” the crime is grand theft. (Pen. Code, § 487, subd. (d)(2).)
The minor contends that when multiple firearms are taken at the same time from the same victim, only one grand theft has occurred. We agree with the minor.
In People v. Bailey (1961) 55 Cal.2d 514 (Bailey), the California Supreme Court held that a series of petty thefts, performed as part of a single intent and plan, amounted to one grand theft, stating in part: “Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan.” (Id. at p. 519.) That court has also held: “‘When a defendant steals multiple items during the course of an indivisible transaction involving a single victim, he commits only one robbery or theft notwithstanding the number of items he steals.’ (People v. Brito (1991) 232 Cal.App.3d 316, 326, fn. 8 [].)” (People v. Ortega (1998) 19 Cal.4th 686, 699 (Ortega), overruled on other grounds by People v. Reed (2006) 38 Cal.4th 1224, 1228-1231.)
Accordingly, the minor committed but one theft when he aided the other boys or young men to enter the Fox house and take multiple firearms from the gun locker.
We decline the Attorney General’s invitation to follow the Florida Supreme Court’s decision in Grappin v. State (Fla. 1984) 450 So.2d 480 (Grappin). In Grappin, the court interpreted a Florida statute that, like Penal Code section 487, subdivision (d)(2), classifies the theft of “[a] firearm” as a grand theft. (Grappin, at p. 481, fn. *.) The Grappin court concluded “the use of the article ‘a’ in reference to ‘a firearm’ in [the Florida statute] clearly shows that the legislature intended to make each firearm a separate unit of prosecution.” (Id. at p. 482.) The Attorney General argues “Grappin should apply with equal force to the instant case” because “[l]ike Florida, California’s grand theft statute provides that a person can commit grand theft by stealing ‘a firearm.’”
We are not persuaded, for two reasons. First, in reading California penal statutes, we generally construe the singular to include the plural. (Pen. Code, § 7.) Therefore, the use of the singular “a” in the grand theft statute does not indicate that each firearm is to be treated separately. We similarly construed the word “any,” which also can refer to the singular or plural, to preclude multiple convictions under a statute forbidding the possession of “any” of a defined class of weapons. (People v. Kirk (1989) 211 Cal.App.3d 58, 62-65 (Kirk), abrogated by statute as described by People v. Rowland (1999) 75 Cal.App.4th 61, 64-67 (Rowland).) In Kirk, the defendant possessed two weapons that fit the definition of “sawed-off shotgun” within the meaning of a statute that prohibited the possession of “any” of a number of described weapons, including sawed-off shotguns. (Pen. Code, § 12020, subd. (a).) We concluded that “any” could be singular or plural, and the ambiguity should be resolved in Kirk’s favor. (Kirk, supra, 211 Cal.App.3d at pp. 62-65.) We did note a distinction drawn in foreign cases involving statutes referring to “a” firearm, noting that in such cases “courts have found no ambiguity and have upheld separate conviction or punishment for each unlawful weapon possessed.” (Id. at pp. 64, 65 [citing, inter alia, Grappin, with a “see also” signal, as Grappin did not involve an unlawful weapons possession charge].) But as Kirk also emphasized, in reading California penal statutes we construe the singular as including the plural. (Kirk, at p. 65.) Therefore, those foreign authorities do not apply. As indicated, the narrow holding of Kirk was abrogated by the adoption of a statute authorizing multiple convictions for some cases of multiple weapons possession. (Pen. Code, § 12001, subds. (k) & (l); see Rowland, supra, 75 Cal.App.4th at pp. 64-67.) But the discussion in Kirk regarding the singular as including the plural remains good law. “A firearm” as used in the grand theft statute (Pen. Code, § 487, subd. (d)(2)) can include multiple firearms (see Pen. Code, § 7).
Second, the California Supreme Court has set out the test to apply to ascertain whether multiple grand thefts have occurred. (Ortega, supra, 19 Cal.4th at p. 699; Bailey, supra, 55 Cal.2d at p. 519.) We may not depart from that test. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
If the Legislature wishes to discourage multiple firearm thefts, it can amend Penal Code section 487 to state that the theft of each firearm represents a separate offense.
Counts 3 through 5 must be stricken as duplicative of count 2. The minor does not explain how the dispositional order would be affected by this conclusion. The dispositional order included consequences for a separate sustained petition, Yolo Superior Court case No. JD06731. In part the dispositional order adopted the findings of a probation report, which calculated the minor’s maximum theoretical confinement time at six years for burglary plus eight months for each of the four grand thefts. Because only one grand theft charge may be sustained, the maximum confinement time attributable to this case is modified by reducing it to six years eight months.
B. Evidence that a Firearm was Taken
The minor contends the record does not show that any firearms were taken. He raises this claim in two parts, arguing his motion to dismiss should have been granted and that no substantial evidence supports the findings.
Because we conclude only one grand theft charge may be sustained on these facts, we need only determine whether the record, before the close of the People’s case, shows at least one firearm was taken. It does.
For purposes of this appeal we accept the minor’s view that the term “firearm” as used in Penal Code section 487 carries the definition provided by Penal Code section 12001, subdivision (b): “‘[F]irearm’ means any device, designed to be used as a weapon, from which is expelled through a barrel, a projectile by the force of any explosion or other form of combustion.” This has been construed as establishing four elements, namely, that the object is “(1) designed to be used as a weapon and (2) expels a projectile (3) through a barrel, (4) by the force of an explosion or other form of combustion.” (Medley v. Runnels (9th Cir. 2007) 506 F.3d 857, 864.) We also accept that pellet and BB guns are excluded. (See People v. Monjaras (2008) 164 Cal.App.4th 1432, 1435 (Monjaras).)
Mr. Fox testified that, in addition to pellet or BB guns, his “.338 Magnum hunting rifle was stolen, my 10/22 rifle was stolen,” as were a “.50 caliber black-powder rifle,” or “muzzle loader,” and a “1943 Steyr.” The minor contends there was no testimony showing any of these objects fit the definition of a “firearm” set forth above. We disagree.
We review the evidence and reasonable inferences therefrom in the light most favorable to the juvenile court’s findings. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) Like other factual questions, whether an object is a firearm may even be shown by circumstantial evidence. (Monjaras, supra, 164 Cal.App.4th at pp. 1435-1436.)
Arguably the nature of one or more of those items should have been established by testimony explaining, for example, whether Mr. Fox’s “1943 Steyr” was a rifle, a handgun, or something else. The Attorney General’s reference to firearms information outside the record arguably supports the minor’s claim as to this item, as a tacit admission. But Mr. Fox testified that a “.50 caliber black-powder rifle,” also referred to as “muzzle loader,” was taken. This provides a clear description of a firearm. It describes the size of the projectile, the type of explosive used to propel the projectile, and the nature of the weapon: in this case, a rifle loaded through the muzzle, that is, the mouth of the barrel, rather than a pistol or shotgun.
As stated, because only one count of grand theft may stand, we need only find that sufficient evidence was introduced before the motion to dismiss was made in order to sustain the finding on count 2. Mr. Fox’s description of his.50-caliber rifle, part of the People’s case-in-chief, adequately supports the grand theft charge. We need not consider the sufficiency of the evidence regarding other alleged firearms in this case.
II. Confrontation Clause
The minor contends the trial court erroneously admitted a statement of a nontestifying witness, violating his right to confrontation as set forth in Crawford v. Washington (2004) 541 U.S. 36 [158 L.Ed.2d 177] (Crawford).
The challenged evidence was elicited from defense witness West Sacramento Police Officer Gregory Lang. On cross-examination he described some of the investigative steps he took. In part, he testified he spoke with Matt C. the day after the incident: “Q. What did he tell you? [¶] A. He had told me that when he was at the Winters store on the 19th, he overheard [the minor] talking about stealing Mr. Fox’s guns.”
The People contend the minor failed to preserve the alleged error by interposing an objection in the juvenile court. We agree. A party wishing to preserve a confrontation clause claim must make a timely and specific objection. (Evid. Code, § 353; see People v. Alvarez (1996) 14 Cal.4th 155, 186; People v. Rodrigues (1994) 8 Cal.4th 1060, 1118.)
The minor counters that because defense counsel objected to questions to two other witnesses about Matt C.’s statements, the issue is preserved. We disagree. The defense lodged successful hearsay objections when Mr. Fox and his daughter were asked to relate what Matt C. told them over the telephone. The trial court ruled on those objections as they arose but did not purport to make a blanket ruling that would pertain to other witnesses. Therefore, the minor’s failure to object to the question posed to Officer Lang forfeits the contention of error.
The People also reply that the juvenile court did not rely on the challenged statement, except as to counts charging conspiracy, and because those counts were later dismissed, any error was harmless beyond a reasonable doubt. (People v. Harrison (2005) 35 Cal.4th 208, 239.) We again agree.
At the close of the People’s case the court dismissed counts 6 and 7, alleging conspiracy to commit burglary and grand theft. The jurisdictional hearing was continued to another date nearly two months later. After the parties made closing arguments, the court mentioned the evidence about Matt C.’s statement, along with a discussion of other evidence, and concluded by saying: “Based on the evidence the court has heard, the court finds that the evidence does support a conclusion that [the minor] engaged in a conspiracy to both commit a first degree burglary and a grand theft of the weapons. Those are Counts 6 and 7 and the court finds those counts to be true.”
After defense counsel reminded the court that the conspiracy counts had been dismissed, and the court confirmed that had been done, the court stated: “The court finds that the allegation[] in Count 1, first degree burglary is true based upon the evidence, that it appears that [the minor] aided and abetted the actual theft by keeping the other people away from home. The court finds that that aiding and abetting is sufficient to make that finding. Because of that aiding and abetting, the court finds Counts 2, 3, 4 and 5, the grand theft charges to be true as well.”
The People contend that because the court did not mention Matt C.’s statement except as to the conspiracy counts, any confrontation clause error, if not forfeited, was harmless beyond a reasonable doubt. We agree that the record, quoted above, shows the trial court did not rely on the challenged statement except for its abortive findings as to conspiracy. Therefore, any error in admitting the challenged statement, if not forfeited, was harmless as to burglary and grand theft.
Finally, the evidence would have made no difference even if the trial court had relied on it to sustain burglary and grand theft charges. Mrs. Smith testified the minor told her the guns could be found in her son’s car, and Mrs. Smith’s daughter testified the minor had been at the Smith house earlier that day with Armando L. and Danny L., discussing guns and drawing a map or house plan. Mrs. Smith’s daughter also testified that when she and Armando made a call, the minor met them by the park and gave them a handgun. There was also evidence of the minor’s strange behavior, and the timing of events shows he went with the Fox children to the park to give Armando and Danny the chance to steal the guns. Matt C.’s statement was therefore cumulative and was harmless even if the point had been preserved for the appeal and even if the trial court partly relied on it.
DISPOSITION
The findings sustaining the allegations in counts 3, 4, and 5 are stricken and the maximum confinement time attributable to this case (Yolo Superior Court case No. JD07113) is reduced to six years eight months. The juvenile court is directed to prepare a new dispositional order reflecting these modifications. In all other respects, the dispositional order is affirmed.
We concur: ROBIE , J., CANTIL-SAKAUYE , J.