Opinion
A165555
11-27-2023
In re A.R., A Person Coming Under the Juvenile Court Law. v. A.R., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Contra Costa County Sup. Ct. No. J22-00222)
GETTY, J. [*]
A.R. appeals from dispositional orders declaring him to be a juvenile court ward based on jurisdictional findings that he unlawfully possessed a concealed firearm (Penal Code, § 25400, subds. (a)(1) &(c)(4), count one), possessed a loaded firearm (§ 25850, subd. (a) &(c)(4), count two), and possessed a firearm as a minor (§ 29610, count three). A.R. argues that his adjudications pursuant to counts one and two must be reversed because California's concealed carry scheme violates the right to bear arms guaranteed by the Second and Fourteenth Amendments to the United States Constitution. In addition, he asserts that his adjudication under count two was not supported by substantial evidence that the offense occurred in a "public place" in an "incorporated city"; that the juvenile court failed to declare count three (a wobbler) was a felony as required by Welfare and Institutions Code section 726; that the sentence violated section 654 by imposing multiple punishments for possession of one firearm; and that the penalty allegations with respect to counts one and two were not supported by substantial evidence. We reduce counts one and two to misdemeanors and stay their punishment pursuant to section 654. We also reduce the maximum term of confinement in this case to two years. We otherwise affirm.
All statutory references are to the Penal Code unless otherwise specified.
I. BACKGROUND
A. The Arrest and Search
In the early morning of April 23, 2022, three Pittsburg police officers were patrolling on foot in an apartment complex located in the city of Pittsburg. As they approached a parked BMW, three individuals exited the vehicle. A.R., who was a minor at the time, exited the driver's seat. He and another of the individuals were wearing full face masks similar to a ski mask. They started walking away from the car at a "quick" pace, while the third individual walked in a different direction.
Officer Marchut believed A.R. might have a gun because he was walking with "kind of" a limp, was "favoring" his left leg, and had his right hand pressed against his waistband and right hip area. Officer Marchut yelled at A.R. and his companion to stop, but they ran away. After a pursuit during which they briefly lost sight of A.R. and his associate, the officers caught up with and detained them as they were trying to enter an apartment. An initial search of the two failed to disclose any weapons.
Officer Marchut then asked over his radio that other officers be dispatched to look at the BMW. A responding officer saw a black pistol located between the BMW's driver's seat and the driver's side door "in plain view" through the window. Officer Marchut and the other officers walked all three (A.R., his companion, and the third individual who had, by that point, exited the apartment and was also detained) back toward the front of the building. Officers then searched the vehicle and found two firearms, the loaded handgun between the driver's seat and driver's side door and an additional loaded semi-automatic pistol on the passenger's side floorboard. A more detailed search of A.R. incident to his arrest disclosed a key fob which started the BMW. A records check revealed that both guns were registered out of state and the BMW was registered to a female.
B. Procedural History
A few days after A.R.'s arrest, the Contra Costa County District Attorney petitioned the juvenile court to declare A.R. a juvenile court ward pursuant to Welfare and Institutions Code section 602, subdivision (a). The District Attorney alleged as grounds for wardship A.R.'s commission of the offenses of carrying a concealed firearm (§ 25400, subds. (a)(1), (c)(4)) and carrying a loaded firearm (§25850, subds. (a), (c)(4)). The following month, the juvenile court granted the prosecution's motion to add count three, minor in possession of a firearm (§ 29610), and held a contested jurisdictional hearing at which it found all of the allegations in the petition to be true. At the contested dispositional hearing, the juvenile court adjudged A.R. a ward of the court, set his maximum term of confinement at 3 years and 120 days, and committed him to the Briones Youth Academy. A.R. timely appealed.
II. DISCUSSION
A. Constitutionality of California's Concealed Carry Law
We first address A.R.'s argument that his juvenile adjudications for carrying a concealed firearm (§ 25400, count one) and carrying a loaded firearm (§ 25850, count two) must be set aside because California's concealed carry scheme violates the right to bear arms guaranteed by the Second and Fourteenth Amendments to the United States Constitution. Relying on the United States Supreme Court's recent decision in New York State Rifle &Pistol Assn., Inc. v. Bruen (2022) 597 U.S.__ (Bruen), A.R. argues that because California's concealed carry licensing regime is the state's "only authorized means of exercising the [S]econd [A]mendment right to bear loaded arms for self-defense in public, " and it violates that Amendment, his adjudications for carrying a concealed and loaded firearm must be reversed. We disagree. Rather, following the recent decision of Division Two of this District in In re D.L. (2023) 93 Cal.App.5th 144 (D.L.), we conclude that-although California's "good cause" licensing requirement is undisputedly unconstitutional under Bruen-the unconstitutionality of a discrete licensing element does not render either section 25400 or section 25850 facially unconstitutional.
We asked for and received supplemental briefing from both parties on the impact of D.L. on this case.
Preliminarily, we observe that A.R. did not raise this constitutional issue in the trial court and does not challenge his count three adjudication, a violation of section 29610 (minor in possession of a firearm). He argues persuasively, however, that he has not forfeited the constitutional challenge, and the Attorney General does not argue to the contrary. On these facts, we see no reason not to reach A.R.'s argument, even though he raises it for the first time on appeal. Next, we note that A.R. does not suggest that he was or would have been denied a concealed carry license and, if so, why. He is thus raising a facial challenge to the constitutionality of the statutes at issue. (See D.L., supra, 93 Cal.App.5th at p. 157 [" '[a] facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual, '" quoting Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1084].) Finally, both parties argue extensively regarding whether A.R. has standing to raise this facial challenge to sections 25400 and 25850. While we appreciate the Attorney General's argument that there is a longstanding tradition in the United States prohibiting minors from receiving and possessing firearms, we will assume without deciding that standing exists for purposes of our analysis. (See People v. Miller (2023) 94 Cal.App.5th 935, 942 [assuming without deciding that the defendant had standing]; In re T.F.-G. (2023) 94 Cal.App.5th 893, 912-913 (T.F.-G.) [finding standing under similar circumstances]; D.L., supra, 93 Cal.App.5th at p. 161 [finding standing because the minor was "subject to a true finding (the juvenile equivalent of a criminal conviction for an adult) under the possession statute he seeks to challenge as unconstitutional on its face"].)
1. Statutory Framework
A person is guilty of carrying a concealed firearm if he or she "[c]arries concealed within any vehicle that is under the person's control or direction any pistol, revolver, or other firearm capable of being concealed upon a person." (§ 25400, subd. (a)(1).) Similarly, a person is guilty of carrying a loaded firearm in public if he or she "carries a loaded firearm on the person or in a vehicle" while in designated "public place[s]" or "public street[s]." (§ 25850, subd. (a).) However, "[a] person properly licensed to carry a firearm will not be criminally liable just for possessing one. (§ 26010.) Section 25850 'does not apply to the carrying of any handgun by any person as authorized pursuant to Chapter 4 (commencing with Section 26150) of Division 5, ' which are the provisions for applying for a license to carry a firearm." (D.L., supra, 93 Cal.App.5th at pp. 153-154.)
Similar licensing schemes exist for concealed carry licenses issued by a county sheriff (§ 26150) and by a city's chief of police (§ 26155). Both contain a requirement that an applicant show "good cause" for issuance of such a license. (§§ 26150, subd. (a)(2), 26155, subd. (a)(4).) For instance, section 26150, subdivision (a) provides that "[w]hen a person applies for a license to carry a pistol, revolver, or other firearm capable of being concealed upon the person, the sheriff of a county may issue a license to that person upon proof of all of the following: [¶] (1) [t]he applicant is of good moral character[;] [¶] (2) [g]ood cause exists for issuance of the license[;][ ¶] (3) [t]he applicant is a resident of the county or a city within the county, or the applicant's principal place of employment or business is in the county or a city within the county and the applicant spends a substantial period of time in that place of employment or business[; and] [¶] (4) [t]he applicant has completed a course of training as described in Section 26165." In addition, "[a]n applicant for a license is fingerprinted and must pass a background check. (§§ 26185, subd. (a), 26195, subd. (a).) The background check is intended to confirm the applicant is not disqualified from possessing or owning a firearm (for example, due to prior felony convictions or past acts of domestic violence). (§§ 26185, subd. (a)(2), 26195, subd. (b)(1), 29800, 29805.)" (D.L., supra, 93 Cal.App.5th at p. 155, fn. omitted.)
2. The Second Amendment Under Bruen
The Second Amendment to the United States Constitution provides: "A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." "In 2008, for the first time since ratification of the Bill of Rights over 216 years before, the United States Supreme Court identified a constitutionally protected right to possession of handguns in the home" based on this Second Amendment language in District of Columbia v. Heller (2008) 554 U.S. 570, 635 (Heller). (D.L., supra, 93 Cal.App.5th at p. 150.) Heller, however, reaffirmed the constitutionality of many "longstanding" and "presumptively lawful" regulatory restrictions on the right to bear arms, including prohibitions on the possession of firearms by felons and the mentally ill, the carrying of firearms in "sensitive places" such as schools and government buildings, and laws "imposing conditions and qualifications on the commercial sale of arms." (Heller, at pp. 626-627 &fn. 26; see also D.L., at p. 151.)
"Two years after Heller, the United States Supreme Court decided McDonald v. Chicago (2010) 561 U.S. 742, " in which the majority held "that the due process clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller. The Heller majority's interpretation of the Second Amendment thus applies equally 'to both the Federal Government and the States.'" (D.L., supra, 93 Cal.App.5th at p. 151.) More recently, in 2022, Bruen, supra, 597 U.S. at p.__ held "that the Second and Fourteenth Amendments protect an individual's right to carry a handgun for self-defense outside the home" and considered the constitutionality of New York's concealed carry licensing scheme. "Prior to Bruen, an applicant had to prove' "proper cause exists"' to issue the license. [Citation.] In other words, an applicant had to 'demonstrate[] a special need for self-defense.' [Citation.] Bruen noted that six other states, including California, had similar 'proper cause' requirements in their concealed carry licensing frameworks." (D.L., supra, 93 Cal.App.5th at p. 152.) Bruen concluded that a firearm regulation must be "consistent with this Nation's historical tradition" to pass muster under the Second Amendment. (D.L., at p. 152.) "In other words, conduct that falls within the 'plain text' of the Second Amendment may be protected unless the government can identify an 'American tradition' justifying the regulation." (Ibid.) "The Bruen majority concluded that New York did not meet its burden to identify an 'American tradition' justifying its 'proper cause' language, and concluded the requirement was unconstitutional." (D.L., at p. 153.)
3. Standards for Review
The question of whether California's concealed carry scheme violates the right to bear arms guaranteed by the Second and Fourteenth Amendments to the United States Constitution is a pure issue of law which we review de novo. (Peruta v. San Diego (9th Cir. 2016) 824 F.3d 919, 925, abrogated on other grounds in Bruen, supra, 597 U.S. at p. __ ; Valley Baptist Church v. City of San Rafael (2021) 61 Cal.App.5th 401, 410 [an appellate court reviews "questions of law and constitutional interpretation de novo"].) However, "' "[a] defendant challenging the constitutionality of a statute carries a heavy burden: 'The courts will presume a statute is constitutional unless its unconstitutionality clearly, positively, and unmistakably appears; all presumptions and intendments favor its validity.'"' [Citations.] Typically, a litigant may challenge the constitutionality of a statute in two ways: on its face or as applied." (In re D.L., supra, 93 Cal.App.5th at p. 156.)
Here, as stated above, A.R. is challenging the constitutionality of sections 25400 and 25850 and California's licensing framework only on their face." 'A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual.' [Citation.] A facial challenge seeks to void the statute as a whole by showing that' "no set of circumstances exists under which the Act would be valid, " i.e., that the law is unconstitutional in all its applications.'" (In re D.L., supra, 93 Cal.App.5th at p. 157.) "Put another way, 'a facial challenge must fail where the statute has a" 'plainly legitimate sweep.'" '" (Ibid.)
4. No Constitutional Violation
The Attorney General concedes that the "good cause" language in California's licensing statutes is unconstitutional under Bruen but argues the licensing schemes as a whole remain constitutional because the "good cause" requirement is grammatically, functionally, and volitionally severable from the remainder of each statute. We agree, adopting the analysis in D.L. which concluded that "[t]he provision of section 26150, subdivision (a)(2) and section 26155, subdivision (a)(2) that an applicant show '[g]ood cause' for issuance of a concealed carry license satisfies the criteria for severability, making it inappropriate to find the statutes facially unconstitutional." (D.L., 93 Cal.App.5th at p. 163; accord, T.F.-G., supra, 94 Cal.App.5th at p. 916.) A.R., however, asserts that even if the "good cause" requirements are prospectively severed from the licensing statutes, they were in place at the time of his juvenile adjudications and thus he was subjected to punishment based on an unconstitutional statute. In other words, severability cannot operate retroactively in this context. Again, we disagree.
D.L. addressed and rejected an identical argument, reasoning that the minor's claim in that case "could only make sense in the context of an 'as applied' challenge." (D.L., supra, 93 Cal.App.5th at p. 165.) The appellate court went on to explain: "Even if D.L. had asserted an as applied challenge and had standing to do so, we would not be persuaded by the merits of such an argument: the true finding as to D.L. (i.e., his conviction) had nothing to do with the 'good cause' licensing requirement." (Ibid.) In other words, as the Sixth District explained in T.F.-G., supra, 94 Cal.App.5th at p. 916: "To hold that section 25850, the enforcement mechanism of the licensing regime, is facially unconstitutional, we would need to find that section 25850 has no significant application in constitutionally valid circumstances-i.e., that it is unconstitutional in at least the generality or great majority of cases. [Citation.] Although we can identify two theoretical pathways to such a conclusion, neither is available here, because the constitutional defect is severable from the broader licensing regime, and the state retains authority to regulate firearm possession via licensure." As we discuss post, the bulk of the concealed carry licensing statutes remains valid and enforceable.
The authorities cited by A.R. are distinguishable on this basis. (See Shuttlesworth v. Birmingham (1969) 394 U.S. 147, 155 [ordinance requiring parade permit which allowed unfettered discretion for permitting authority to grant or deny permits was unconstitutional as-applied despite subsequent interpretation by state supreme court radically narrowing its scope]; Smith v. Cahoon (1931) 283 U.S. 553, 563-564 [in challenge for violation of licensing statute requiring auto transportation companies to obtain a certificate of public convenience and necessity, statute was not retroactively severable as to private carriers where severing would make the statute void for uncertainty]; accord, In re Porterfield (1946) 28 Cal.2d 91, 95-98, 120 [conviction for refusal to get a license and pay applicable fee prior to soliciting for compensation potential labor unions members cannot be saved by severing unconstitutional portions of ordinance].)
Following Bruen, four public carry licensing requirements remain- background check, firearms safety course, residency, and good moral character. A.R. does not directly challenge any of these remaining provisions, nor could he. "The Bruen majority explained that 'nothing' in its analysis should be interpreted to suggest the unconstitutionality of licensing regimes that require applicants to 'undergo a background check or pass a firearms safety course' to obtain a license." (D.L., supra, 93 Cal.App.5th at p. 165.) In addition, the residency requirement for licensure easily meets the mandate that a licensing scheme must be objective and definite. (Bruen, supra, 597 U.S. at p.__ (conc. opn. of Kavanaugh, J.).) Finally, Bruen acknowledged, but did not disturb, the good moral character requirement in New York's licensing statute. Instead, it referred to 43 "shall issue" jurisdictions where authorities must issue concealed-carry licenses whenever applicants satisfy certain threshold requirements. (Bruen, at p.__ [Bruen, at p. 2123].) Included in that list are at least two jurisdictions-Connecticut and Rhode Island-that the Court explained did not give unfettered discretion to deny licenses even though they have a suitability or moral-character requirement. (Id. at p.__ [Id. at p. 2123, fn. 1].) Thus, it appears that, once the "good cause" language is severed, the licensing statutes have a" '" 'plainly legitimate sweep, '" '" thus surviving a facial constitutional challenge. (D.L., at p. 157.)
A.R., however, argues that the "may issue" language in the licensing statutes, even if their requirements are otherwise met, imparts unchanneled discretion, rendering the entire scheme unconstitutional. We are not persuaded. First, we note that D.L. rejected the same argument, holding that it constituted "an 'as applied' constitutional challenge and not a facial challenge because the argument would not apply in all circumstances. [Citation.] Rather, it would only apply where the sheriff or police chief refused to issue a license without articulating a reason for the rejection." (D.L., supra, 93 Cal.App.5th at p. 166.) We note in addition that "may" is not always permissive. (Parking Authority v. Nicovich (1973) 32 Cal.App.3d 420. 435.) Moreover, we interpret statutes to support their constitutionality whenever possible. (S&S Cummins Corp. v. West Bay Builders, Inc. (2008) 159 Cal.App.4th 765, 780 [" 'Whenever possible, statutes are to be interpreted as consistent with applicable constitutional provisions so as to harmonize both.' "].) Thus, absent an as applied challenge to the contrary, we will interpret the licensing statutes to require issuance of a license if the remaining objective and definite requirements are met. (See Bruen, supra, 597 U.S. at p.__, fn. 1 [142 S.Ct. at p. 2123, fn.1] [noting that Connecticut and Rhode Island had "discretionary criteria but appear to operate like 'shall issue' jurisdictions"].)
B. Sufficient Evidence Supports Count Two
It is undisputed that the police discovered the firearm involved in this case in a vehicle that was parked in the parking lot of an apartment complex. Section 25850 provides that "[a] person is guilty of carrying a loaded firearm when the person carries a loaded firearm on the person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory." (§ 25850, subd. (a).) The statute thus "prohibits carrying a loaded firearm on one's person or in a vehicle: (1) while in any public place in an incorporated city; (2) while on any public street in an incorporated city; (3) while in any public place in a prohibited area of unincorporated territory; or (4) while on any public street in a prohibited area of unincorporated territory." (People v. Knight (2004) 121 Cal.App.4th 1568, 1576 [construing former § 12031, subdivision (a)(1), the substantively identical predecessor to § 25850, subd. (a)].)
"We utilize the substantial evidence test to determine whether the prosecution has introduced sufficient evidence to meet its burden of proof beyond a reasonable doubt." (People v. Augborne (2002) 104 Cal.App.4th 362, 371; accord, In re V.V. (2011) 51 Cal.4th 1020, 1026.) The framework undergirding our substantial evidence analysis is well settled." 'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence-that is, evidence that is reasonable, credible, and of solid value-from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.' (People v. Linberg (2008) 45 Cal.4th 1, 27.)" (People v. Covarrubias (2016) 1 Cal.5th 838, 890; accord, People v. Odom (2016) 244 Cal.App.4th 237, 246.)
Here A.R. contends that his adjudication for carrying a loaded firearm in a vehicle (§ 25850, subd. (a), count two) must be reversed for insufficient evidence. Specifically, he asserts that the prosecution failed to prove both that the vehicle was in a public place and that the public place was within an incorporated city. We are not persuaded by either claim.
1. Substantial Evidence Gun Was Found in a Public Place
"California courts have made clear that whether a particular location is a 'public place' or 'public area' depends on the totality of the facts of the individual case." (People v. Strider (2009) 177 Cal.App.4th 1393, 1401 (Strider).) "The term 'public place' generally means 'a location readily accessible to all those who wish to go there .... [Citation.] The key consideration is whether a member of the public can access the place 'without challenge.'" (People v. Krohn (2007) 149 Cal.App.4th 1294, 1298.) Thus, "parking lots on private property, open to the general public, have consistently been held to be public places." (Strider, at p. 1402.) And "it has been held that a 'public place includes the area outside a home in which a stranger is able to walk without challenge.'" (Ibid.)
In People v. Perez (1976) 64 Cal.App.3d 297, the appellate court concluded that an apartment hallway was a public place, reasoning as follows: "There were no locked gates or doors to keep the public from entering. Hallways and stairways of multiple dwellings are open to delivery [people], service [people], solicitors, visitors[, ] and other strangers, whether those hallways are interior or exterior to the buildings[] and are therefore public places . . . . In other words, a 'public place' . . . is a location readily accessible to all those who wish to go there rather than a place which the general public frequents." (Id. at p. 301, fn. omitted.)
Here, as mentioned above, Officer Marchut testified at the jurisdictional hearing on May 16, 2022, that he and two other officers were doing "foot patrol" and "walking through the Belmont Apartments" when they noticed the BMW where the gun was ultimately located. He further testified that A.R. and another individual ran away through a walkway in the complex and he and the other officers were able to chase them "on foot, " eventually locating them as they attempted to enter a nearby apartment. Officer Marchut radioed other officers to respond to the BMW, and Officers Elliott and Powell did so, reporting in a matter of minutes that they observed two firearms in plain view inside the vehicle. Officer Marchut then walked A.R. and the other individuals "back to the patrol vehicles near the front of the building" and searched A.R. incident to his arrest. As a general matter, police officers are not authorized to do foot patrol in private spaces.
Moreover, the sequence of events-during which the officers were able to chase A.R. and his companion freely through the complex and the other officers responding to the car were able to gain access to it within minutes- strongly suggests that the common areas of the apartment complex were freely accessible to the public.
In addition, defense counsel submitted into evidence and played for the court, footage from Officer Marchut's body worn camera, which included his initial encounter with A.R. The video recording shows dozens of cars parked in the lot, and no visible fences or gates. An individual unrelated to the incident is observed walking freely through the apartment complex. Trash bins sized for individual units and a central mail area can be seen, suggesting that the complex is open for garbage collection and mail delivery. This provides more evidence that the parking lot is a location readily accessible to all those who wish to go there. We believe the evidence that was presented- along with reasonable inferences therefrom-is sufficient to establish that the parking lot was a public place.
2. Substantial Evidence Pittsburg is an Incorporated City
We also find unpersuasive A.R.'s contention that insufficient evidence was presented at the jurisdictional hearing to establish that the City of Pittsburg is an incorporated city, a fact necessary to sustain the allegations pursuant to section 25850 in this case. Officer Marchut testified at the jurisdictional hearing that he was employed by the Pittsburg Police Department and that the Belmont Apartments, where the incident took place, are located within the City of Pittsburg. He further explained that he and two other officers were doing "foot patrol" and "walking through the Belmont Apartments" when they noticed the BMW where the gun was ultimately located. This constituted substantial evidence that the vehicle in which the loaded gun was discovered was located in the City of Pittsburg. (Compare People v. Vega (1971) 18 Cal.App.3d 954, 957 (Vega) [peace officer's testimony that the "defendant's arrest took place . . . in El Monte . . . was sufficient to sustain a finding" the defendant was carrying a loaded firearm "in El Monte as charged"].)
Further, the juvenile court was required to take judicial notice of the fact that Pittsburg is an incorporated city. (See Gov. Code, § 57380 ["Courts shall take judicial notice of the organization and existence of cities incorporated pursuant to this division, " italics added]; id. § 56043 [" '[i]ncorporation' means the creation or establishment of a city' "]; Evid. Code, § 451, subd. (a) [judicial notice "shall be taken of, " among other things, the "public statutory law of this state, " italics added]; see also Vega, supra, 18 Cal.App.3d at p. 958 [noting that the trial court "could take judicial notice of facts which were common knowledge within its territorial jurisdiction" pursuant to Evid. Code, § 452, subd. (g) to support a conviction under section 25850].)
Although the record is silent on this point, we presume the juvenile court fulfilled this mandatory duty and took judicial notice of Pittsburg's incorporation. (In re Julian R. (2009) 47 Cal.4th 487, 498-499 [discussing "cardinal principle of appellate review" that an order of the lower court is presumed correct and that, as to matters for which the record is silent, "' "the trial court is presumed to have been aware of and followed the applicable law"' "].) We are similarly required to take judicial notice of Pittsburg's incorporation on appeal. (See Evid. Code, § 459, subd. (a) ["The reviewing court shall take judicial notice of . . . each matter that the trial court was required to notice under Section 451, " italics added]; see also https://admin.cdn.sos.ca.gov/ca-roster/2021/cities-towns.pdf [California Secretary of State's roster of incorporated city and town officials noting Pittsburg was incorporated on June 25, 1903], as of Nov. 27, 2023.)
Of course, the better approach would have been for the prosecutor in this case to put a request for judicial notice or a stipulation as to Pittsburg's status on the record. However, A.R. does not claim on appeal that Pittsburg is not incorporated as required and we have determined that it is. Thus, even if error somehow occurred in this context, it would be harmless under any standard. (See People v. Carnesy (1971) 16 Cal.App.3d 863, 867 ["The court's failure to take judicial notice of the city ordinance under which the defendant was arrested is but a cosmetic defect. Had it done so there would have been nothing the defendant could have done to change the unchallengeable fact that the ordinance existed and that it read as copied by us in footnote 2 above"]; see also Vega, supra, 18 Cal.App.3d at p. 958 [trial court's error in failing to notify the parties of its intention to take judicial notice under Evid. Code, § 452, subd. (g) that crime occurred in an incorporated city was "harmless beyond a doubt"].)
C. Felony Status of Count Three
At the beginning of the jurisdictional hearing in this case, the prosecutor announced her intention to amend the petition to add an additional allegation pursuant to section 29610 as count three. The juvenile court allowed the amendment and asked whether the count was a misdemeanor. After the prosecutor responded that it was a felony, the court asked the bailiff to get the Penal Code so it could "take a look at the section." It then thanked the bailiff and confirmed that the code section was 29160. After evidence and argument, the juvenile court found the allegations in the petition to be true beyond a reasonable doubt, including the amended count under section 29610. It then confirmed it had sustained the petition and stated: "Those counts are felonies in nature."
Section 29610, subdivision (a) makes it unlawful for a minor to possess certain firearms. Pursuant to section 29700, subdivision (a)(3), a violation of section 29610 is punishable as either a misdemeanor or a felony. The juvenile court law provides that" '[i]f 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.' This declaration must be made at or before disposition." (In re G.C. (2020) 8 Cal.5th 1119, 1125 (G.C.), quoting Welf. &Inst. Code, § 702.; see also Cal. Rules of Court, rules 5.790(a)(1) &5.795(a).) Moreover, "[i]t is not sufficient that the offenses were identified as felonies in the wardship petitions and in the minute order of the jurisdictional hearing, or that they were treated as felonies for purposes of calculating the maximum term of confinement." (G.C., at p. 1125.) Rather "an explicit declaration" is required. (Ibid.; accord, In re Manzy W. (1997) 14 Cal.4th 1199, 1206-1208 (Manzy W.).)
Here, as described above, the juvenile court did make an explicit declaration after sustaining the allegations in the petition, stating that all three counts were "felonies in nature." This was sufficient to satisfy the statute. (See G.C., supra, 8 Cal.5th at p. 1125.) A.R., however, argues that it appears from the record that the juvenile court mistakenly believed that the section 29610 violation was a straight felony. We do not read the record this way. First, the juvenile court declared on the record that count three, like count one and count two, was a felony. It did so after expressly looking at the statute in question, which does not include any reference to the appropriate punishment. Thus, the court would have understood that-in contrast to sections 25400 and 25850-reference to another statute would be required to determine how the violation must be punished. Nothing in the record supports the conclusion that the juvenile court was confused or was unaware of count three's status as a wobbler.
In Manzy W., supra, 14 Cal.4th 1119, our high court-having found a violation of Welfare and Institutions Code section 702-rejected the People's argument that Evidence Code section 665 required it to" 'presume' that the juvenile court had performed its official duty, " stating: "We are unpersuaded that such a presumption is appropriately applied when the juvenile court violated its clearly stated duty under Welfare and Institutions Code section 702." (Manzy W., at p. 1209.) The Court went on to conclude that such a violation of the statute could be harmless where "the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Ibid.) It follows logically that, where no violation appears (as in this case), it is appropriate to presume the juvenile court performed its official duty. (See People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 398 ["As a general rule' "a trial court is presumed to have been aware of and followed the applicable law."' "].) In short, we see no error.
D. Reduction in Maximum Term of Confinement Under Section 654
When a minor is adjudged a ward of the court and removed from parental custody, as in this case, the disposition order "shall specify that the minor may not be held in physical confinement for a period in excess of the middle 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." (Welf. &Inst., § 726, subd. (d)(1).) Here, the juvenile court declared this "maximum term of confinement" to be three years, four months. As just discussed, the juvenile count treated all three counts at issue-possessing a concealed firearm (§ 25400, subd. (a)(1)), possessing a loaded firearm (§25850, subd. (a)), and possession of a firearm by a minor (§ 29610, subd. (a))-as felonies. The parties agree that they were all subject to the same sentencing triad-16 months, two years, or three years in prison. (See §§ 1170, subd. (h)(1), 25400, subd. (c)(4), 25850, subd. (c)(4), and 29700, subd. (a)(3).) Although the record is silent on this point, the only way that the juvenile court could have arrived at the term it imposed is if it selected the middle term of two years for one of the offenses and imposed one-third of the midterm (8 months) for each of the two subordinate counts. (See § 1170.1, subd. (a) [ aggregate term of imprisonment for felonies sentenced consecutively is the sum of the principal term plus one-third of the mid-term for each subordinate term].)
At the jurisdictional hearing, the prosecutor stated that A.R. "may have had control over both firearms, " but went on to argue: "[E]ven if your honor found he only had access to the one nearest him . . . we could still prove the charge even with that one firearm." During argument, the prosecutor reiterated that she believed the second firearm was "also within arm's reach of this minor, " but then explained: I don't think the Court even needs to make that determination because we are not arguing how many firearms were concealed in this vehicle, but, rather, that there was at least one firearm concealed in this vehicle." In finding the petition's allegations true, the court found that A.R. was arguably smarter than the person who left his gun on the floorboard: "He was stuffing the weapon that he had in his possession to hide it from the officer's view, and it was very difficult to see." Thus, it appears that the juvenile court (Commissioner Houghton) concluded that A.R. was in possession of only one of the two guns. Judge Kennedy subsequently reinforced this determination, describing the offenses at the dispositional hearing as follows: "[A.R.] is out at 1:00 o'clock in the morning in a car where he himself had a loaded firearm right next to him. There are two other men in the car, one of whom had a fully automatic machine gun with an extended clip. [¶] . . . No good can come of young men driving around with firearms illegally and especially with a machine gun designed only to kill people. It is not-there is no other purpose for a machine gun. [¶] And I know [A.R.] didn't have the machine gun, but the person in the passenger's seat next to him did and [A.R.] had his own firearm. (Italics added.) On this record, we conclude that the juvenile court sentenced A.R. based on his possession of a single firearm.
Section 654 provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).)" '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.'" (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) In People v. Jones (2012) 54 Cal.4th 350, 357, our high court applied this rule on similar facts to those we consider here, holding that "a single possession or carrying of a single firearm on a single occasion may be punished only once under section 654."
Thus, it is clear on this record that A.R.'s three offenses-possessing a concealed firearm, possessing a loaded firearm, and possession of a firearm by a minor-having been based on his possession of a single gun on a single occasion are subject to section 654 and may only be punished once. The juvenile court in this case therefore should have set the maximum term of confinement at two years (the mid-term for one offense) and stayed the punishment for the other two offenses under section 654. Indeed, the Attorney General concedes this point. Under the circumstances, as we discuss further below, we will instruct the juvenile court to amend the dispositional order to reflect a maximum term of confinement of two years. E. Penalty Allegations Not Supported by Substantial Evidence
As stated above, a person is guilty of carrying a concealed firearm pursuant to section 25400 if, among other things, that person "[c]arries concealed within any vehicle that is under the person's control or direction any pistol, revolver, or other firearm capable of being concealed upon the person." (§ 25400, subd. (a)(1).) A person is guilty of carrying a loaded firearm pursuant to section 25850 when, among other circumstances, the person carries a loaded firearm on the person or in a vehicle while in any public place in an incorporated city. (§ 25850, subd. (a).) A violation of section 25400 is a misdemeanor unless a penalty allegation is proven that elevates the offense to a wobbler or a felony. (§ 25400, subd. (c).) The same is true for carrying a loaded firearm within the meaning of section 25850. (§ 25850, subd. (c).) A.R. finally challenges his adjudications for felony violations of section 25400 (count one) and section 25850 (count two), contending that insufficient evidence supports the findings pursuant to subdivision (c)(4) of those statutes which elevated both offenses to felonies. The Attorney General concedes this point, and we agree.
A violation of section 25400 is a felony pursuant to subdivision (c)(4) of that statute if the defendant "is not in lawful possession of the firearm, or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to Chapter 2 (commencing with Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of [the Penal Code], or Section 8100 or 8103 of the Welfare and Institutions Code." Subdivision (c)(4) of section 25850 is identical. In In re M.G. (2014) 228 Cal.App.4th 1268 (M.G.), we noted:" 'As used in Section 25400, "lawful possession of the firearm" means that the person who has possession or custody of the firearm either lawfully owns the firearm or has the permission of the lawful owner or a person who otherwise has apparent authority to possess or have custody of the firearm. A person who takes a firearm without the permission of the lawful owner or without the permission of a person who has lawful custody of the firearm does not have lawful possession of the firearm.'" (M.G., at p. 1275, quoting § 16750, subd. (a).) Moreover, after a review of the statutory structure as a whole, as well as relevant legislative history, we concluded that the term "lawful possession" in section 24500 does not automatically exclude minors just because section 29610 makes possession of a firearm by a minor a criminal offense. (M.G., at pp. 12761278; accord, In re D.D. (2015) 234 Cal.App.4th 824, 831-833 (D.D.) [agreeing with M.G.'s analysis of section 25400, subdivision (c)(4) and holding that it applies as well to section 25850, subdivision (c)(4)].)
Here, we agree with the parties that there was no evidence presented as to whether A.R. was or was not in lawful possession of the firearm, such as by having the registered owner's permission. Moreover, under M.G. and D.D., a minor's possession of a firearm is not rendered unlawful under sections 25400 or 25850 merely by virtue of his or her minority. Since substantial evidence does not support the subdivision (c)(4) allegation under either statute, we must reverse the felony designations of counts one and two. A.R. argues that we should simply reduce the counts to misdemeanors, while the Attorney General suggests that we remand the matter for resentencing so that the juvenile court can determine whether to treat the offenses as wobblers pursuant to subdivision (c)(6) of the two statutes. Under the particular circumstances of this case-where we must stay the punishment for two counts pursuant to section 654- we will reduce counts one and two to misdemeanors and stay their punishment, thereby leaving count three as the remaining felony offense.
Although we know from probation's sentencing report that A.R. was the subject of prior juvenile adjudications that would have disqualified him from possessing a firearm (§ 29820, subds. (a)(1)(A) & (b)), no evidence was presented at the dispositional hearing that any of the specified statutory prohibitions set forth in sections 24500 and 25850 were applicable to A.R.
III. DISPOSITION
We reduce counts one and two to misdemeanors and stay any punishment under both counts pursuant to section 654. We also reduce the maximum term of confinement in this case to two years for count three. The juvenile court's dispositional orders should be amended to reflect these changes. We otherwise affirm the juvenile court's jurisdictional findings and dispositional orders.
WE CONCUR: MARGULIES, ACTING P.J. BANKE, J.
[*]Judge of the Solano County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.