Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Donna Groman, Judge. Los Angeles County Super. Ct. No. JJ16627
Torres & Torres and Steven A. Torres for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Keith H. Borjon and A. Scott Hayward, Deputy Attorneys General, for Plaintiff and Respondent.
KRIEGLER, J.
Minor and appellant R.M. was declared a ward of the juvenile court pursuant to Welfare and Institutions Code section 602, based upon findings he was in possession of a firearm and ammunition in violation of Penal Code sections 12101, subdivision (a)(1), and 12101, subdivision (b). Appellant was placed home on probation.
Further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Appellant filed a timely notice of appeal. He argues the juvenile court failed to declare whether the firearm offense was a felony or a misdemeanor, as required by section 726, the term imposed on the ammunition allegation should have been stayed pursuant to Penal Code section 654, he should have been awarded four days of custody credit, and the minute order of the dispositional hearing is inconsistent with the oral pronouncement of judgment. The Attorney General concedes errors on each of these issues. We remand the matter to the trial court to correct the four errors complained of, and otherwise affirm the judgment.
FACTS
Deputy Darell Edwards and his partner were conducting a traffic stop when they heard gunshots. They discontinued the traffic stop to conduct a shooting investigation at the nearby Imperial Gardens Housing Project. Deputy Edwards saw appellant on a bicycle riding in his direction. The deputy told appellant to stop his bicycle because of the recent gunshots in the area.
Instead of stopping, appellant sped up by pedaling faster. Believing appellant may have been involved in the shooting because he was in the area where the shots were heard shortly before, Deputy Edwards detained appellant by grabbing his arm and shirt as he tried to pedal away on his bicycle. The deputy asked if appellant was in possession of a weapon, but appellant did not respond. Deputy Edwards then recovered an operable.357 revolver from appellant’s waistband. The weapon contained three live rounds and two expended rounds.
Appellant testified that he found the revolver by an empty bag of Cheetos and intended to discard it in the trash immediately when he was stopped by Deputy Edwards.
DISCUSSION
Violation of Section 702
Appellant first argues that Penal Code section 12101, subdivision (a)(1), is an alternate felony or misdemeanor and the trial court failed to expressly declare whether the offense was a felony or misdemeanor for purposes of disposition as required by section 702. We accept the Attorney General’s concession of error.
Section 702 provides in pertinent part: “If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony.” “[F]ailure to make the mandatory express declaration requires remand of [the] matter for strict compliance with... section 702.” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.)
The offense defined in Penal Code section 12101, subdivision (a)(1), is punishable as a felony or misdemeanor. (See Pen. Code, §§ 12101, subd. (c)(1)(C), 17, subd. (a).) The maximum term of physical confinement stated by the juvenile court at the disposition hearing was three years two months. However, no express declaration was made as to whether the firearm charge was a felony or a misdemeanor, which is required by our Supreme Court’s interpretation of section 702. Other than the calculation of the maximum period of confinement, the record does not indicate the juvenile court considered whether to declare the offense a felony or a misdemeanor. (See In re Manzy W, supra, 14 Cal.4th at pp. 1207-1209.) Accordingly, the matter must be remanded “for an express declaration pursuant to... section 702 and possible recalculation of the maximum period of physical confinement.” (Id. at p. 1211.)
Penal Code Section 654Appellant argues the juvenile court should have stayed punishment on the possession of ammunition offense, since it was part of an indivisible course of conduct with the possession of a firearm offense. We agree.
The juvenile court found that appellant was unlawfully in possession of a firearm and ammunition. The ammunition was contained in the firearm. It appears the court calculated the maximum term of punishment by imposing consecutive terms for the two offenses. Under the circumstances of this case, appellant engaged in an indivisible course of conduct that was not subject to multiple punishment for the two offenses under the principles of Penal Code section 654.
“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, and [an] ‘indivisible course of conduct’ is present[, Penal Code] section 654 precludes multiple punishment.” (People v. Lopez (2004) 119 Cal.App.4th 132, 138.)
In recalculating appellant’s maximum period of confinement upon remand to the juvenile court, the punishment for the offense of a minor in possession of ammunition must be stayed pursuant to Penal Code section 654.
Predisposition Credits
Appellant argues he should have been awarded four days of custody credits. The exact amount of custody credits to which appellant is entitled is not entirely clear from the appellate record, and the matter is being remanded to the juvenile court on other issues relating to the dispositional order. Rather than order a specific award of credits, which may not be accurate, we simply direct the juvenile court to award the appropriate amount of predisposition credits upon remand.
Variation between Oral Pronouncement of Judgment and Minute Order
Finally, appellant contends the minute order from the disposition hearing does not accurately reflect the oral pronouncement of the conditions of probation in four ways. As reflected below, we order the minute order modified so as to be consistent with the oral judgment.
“Entering a judgment of the trial court in the minutes is a clerical function. Any discrepancy between the minutes and the oral pronouncement of a sentence is presumed to be the result of clerical error. Thus, the oral pronouncement of sentence prevails in cases where it deviates from that recorded in the minutes. (See People v. Mesa (1975) 14 Cal.3d 466, 471-472.)” (People v. Price (2004) 120 Cal.App.4th 224, 242.)
First, appellant points out that the juvenile court ordered him to perform 100 hours of “community service,” but the minute order requires him to perform 100 hours of “work” in condition No. 8. Although we doubt there is a practical distinction between the two terms in the context of this case, there is a variation which should be corrected to reflect the oral pronouncement of judgment.
Second, appellant correctly notes that the minute order includes a term in condition No. 9 that was not orally imposed by the juvenile court—that appellant attend a school program approved by the probation officer, maintain satisfactory grades, attendance and citizenship, and promptly notify the probation officer of every absence. Although the condition was not orally imposed, section 729.2 requires that in every case in which a minor is declared a ward of the court under section 602 and not removed from the physical custody of a parent or guardian, the court must impose a condition requiring “the minor to attend a school program approved by the probation officer without absence,” unless the court makes a finding the condition is inappropriate. No finding was made that the school condition is inappropriate in this case. Accordingly, on remand, the juvenile court must comply with section 792.2 and require school attendance unless the condition is inappropriate.
Third, the minute order indicates in condition No. 15 that appellant must not associate with anyone known by him to be disapproved of by his parents or the probation officer. The juvenile court did not impose this condition, which must be stricken from the minute order.
Fourth, and finally, the minute order includes condition No. 16 that appellant not possess any dangerous or deadly weapon, nor may he remain in the presence of anyone he knows to be armed. This condition was not orally imposed by the juvenile court and must be stricken from the minute order.
Although the third and fourth conditions at issue were not orally imposed by the juvenile court, we note that appellant remains under an obligation to obey all laws and orders of the probation officer under condition No. 1. Certainly the probation officer may, if he chooses to do so in his discretion, order appellant not to associate with persons disapproved of by a parent, may order him not to possess deadly or dangerous weapons, and not associate with others he knows to unlawfully be in possession of weapons.
DISPOSITION
The action is remanded to the juvenile court with directions to do the following: (1) declare whether the violation of Penal Code section 12101, subdivision (a)(1), is a felony or misdemeanor as required by Welfare and Institutions Code section 702 and, if necessary, recalculate the maximum period of confinement; (2) stay the imposition of punishment as to the violation of Penal Code section 12021, subdivision (b), pursuant to Penal Code section 654; (3) determine appellant’s right to credit for time in custody prior to disposition; (4) modify the minute order, dated January 29, 2009, to reflect that appellant is to perform 100 hours of “community service” instead of 100 hours of “work” as set forth in condition No. 8; (5) strike condition No. 9 pertaining to attendance at school, maintenance of satisfactory grades, attendance and citizenship, and notification of the probation officer of school absences; (6) impose the condition requiring attendance of school approved by the probation officer without absence as required by section 792.2, unless the court specifically finds the condition is inappropriate; (7) strike condition No. 15, requiring appellant not to associate with anyone disapproved of by parents or the probation officer; and (8) strike condition No. 16 prohibiting the possession of dangerous or deadly weapons or being in the presence of anyone known by appellant to be unlawfully armed. In all other respects, the judgment is affirmed.
We concur: ARMSTRONG, Acting P. J. MOSK, J.