Opinion
A131762
11-28-2011
In re C.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. C.W., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Contra Costa County Super. Ct. No. J08-01459
C.W. (the minor) appeals jurisdiction and disposition orders after the juvenile court found true allegations that he was carrying a weapon capable of being concealed and an unregistered and loaded firearm. The court set the minor's maximum term of confinement at 112 months. He challenges the sufficiency of the evidence to prove that the gun he was carrying was "capable of being concealed" within the meaning of the statute he was found to have violated. There was in fact no evidence to establish that the gun had "a barrel less than 16 inches in length," which defines a weapon capable of being concealed under the applicable statute. Therefore we must strike the finding that he violated that statute and remand for redetermination of the maximum term of confinement.
BACKGROUND
On January 12, 2011, a supplemental wardship petition was filed alleging that the minor had possessed a firearm capable of being concealed (Pen. Code, § 12101, subd. (a)(1)) and that he had carried an unregistered, loaded firearm. (§ 12031, subd. (a)(2)(F).) On February 25, at a contested jurisdiction hearing, the court sustained both counts alleged in the petition.
On August 25, 2008, a juvenile wardship petition was filed under Welfare and Institutions Code section 602, subdivision (a) alleging that the minor had committed first degree residential burglary and attempted burglary on 27 separate occasions. The minor admitted three of the counts, was committed to the Orin Allen Youth Rehabilitation Facility for 180 days, and placed on 90 days' probation following release. On August 11, 2009, the court found that he had successfully completed probation and ordered him to pay restitution to a number of burglary victims. The minor appealed from that order and on December 9, 2010, this court affirmed in case No. A128098.
Further unspecified statutory references are to the Penal Code.
At the jurisdiction hearing the arresting officer testified that he had special training in recognizing hidden weapons. He testified that he has made "[a]pproximately four or five" arrests for carrying concealed weapons and assisted in eight or nine other arrests for carrying concealed handguns.
The officer testified that he was on patrol on the afternoon of December 31, 2010. He saw three Black males, one of whom was the minor, jaywalking in the street in front of his patrol car. The minor was wearing a puffy black jacket that came to his waist and jeans. When he walked in front of the patrol car, the officer "could see a little bulge near his pocket line on the waistline." "[W]hen he walked, you could kind of see that—it protruded a little bit more than like a hipbone you could say. And as he would take a step forward, you would kind of see it move backwards, and he'd take a step forward and it would go forward. And it was just one solid bulge that would not move as you would think a regular muscle would move." The officer testified that "[f]rom the shape of it, it seemed like it would be a gun."
The officer pulled over and told the boys, "Come here." The minor appeared nervous, and the officer told him, "if you have a gun, just let me know." The minor said he did not and the officer conducted a pat search. In the same area where he had observed the bulge, he felt something "[m]etal and cold" which was the hammer of the weapon. The officer took the minor to the ground "to control his movement since I was outnumbered three to one" at which point "[t]he gun fell out and I immediately got on the radio and called for my backup."
When the officer arrested the minor he discovered that the gun was loaded and had a chambered round. The minor said, "I should have killed you when I had the chance."
The court sustained both allegations.
On March 11, at the disposition hearing, the court continued the minor as a ward of the court, and committed him to the Orin Allen Youth Rehabilitation Facility for 270 days, with an additional 90-day parole period upon release. The minor timely noticed an appeal.
DISCUSSION
The minor argues that the juvenile court erred in sustaining the first allegation because there was no evidence concerning the size of the weapon.
After both parties rested at the jurisdiction hearing, the minor's counsel stated "I'd like to make a specific argument. But before I do that, I wanted to make sure the evidence is closed for both sides at this time." The court replied, "That is my understanding." The minor's counsel then argued "with regard to count one that there has been insufficient evidence that it is a firearm capable of being concealed upon the person. I would direct the court to CALCRIM No. 2520, which defines firearm capable of being concealed on the person. [¶] In that instruction . . . it refers to a firearm capable of being concealed on the person as a device designed to be used as a weapon. It talks about a barrel. And it has to have a barrel of 16 inches—." The court interrupted, stating, "It says, it also includes any device that has a barrel. I don't think it is specific that it has to be that. It says also includes. So unless I'm misreading that . . . ." Counsel then argued that "given the very scarce testimony here about the shape and size of this gun there is not evidence beyond a reasonable doubt that it is a gun capable of being concealed on the person." The court asked the prosecutor to respond, and she stated, "I'm going to submit on argument on count one unless the court requires me to argue in response to counsel's assertion." The court then sustained the petition on the first allegation.
Section 12101, subdivision (a)(1), which the court found the minor had violated, prohibits a minor from possessing "a pistol, revolver, or other firearm capable of being concealed upon the person." Section 12001, subdivision (a)(1) provides that "As used in this title, the terms 'pistol,' 'revolver,' and 'firearm capable of being concealed upon the person' shall apply to and include any device designed to be used as a weapon, from which is expelled a projectile by the force of any explosion, or other form of combustion, and that has a barrel less than 16 inches in length."
We note that these provisions will be repealed on January 1, 2012.
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In People v. Boyd (1947) 79 Cal.App.2d 90, on which the minor relies, the court reversed a conviction for carrying a firearm capable of being concealed on the person because there was insufficient evidence concerning the length of the barrel. At the time, the statute defined a "weapon capable of being concealed on the person" as one with a barrel under 12 inches. The gun was not entered into evidence but there was testimony that when placed in the purse of the defendant's wife, the handle of the gun stuck out. The wife testified that the barrel of the gun was over 12 inches. A 15-inch ruler was placed in the purse, and one and a quarter inches of the ruler protruded. (Id. at pp. 92-93.) The Attorney General argued that "it is not necessary in such a case to prove that the gun in question has a barrel less than twelve inches in length"; that "the portion of the statute which reads 'the terms "pistol," "revolver" and "firearms capable of being concealed upon the person" as used in this act shall be construed to apply to and include all firearms having a barrel less than twelve inches in length' was not meant to exclude firearms with barrels longer than twelve inches; and that it follows that the length of the barrel of the gun need not be proved." (Id. at p. 93.) The court rejected that argument, reasoning that "[t]he wording of the statute, in defining these terms for the purpose of the statute as applying to and including all firearms having a barrel less than twelve inches in length, was clearly intended to make the statute inapplicable to firearms having a barrel twelve inches or more in length." (Ibid.) The court deemed the evidence concerning the measurement of the purse with a ruler insufficient to establish that the barrel was less than twelve inches because "there is no evidence as to the length of the 'chamber and operating mechanism'; none as to the distance between the handle and the barrel of the gun, and no definite evidence as to how much of the gun protruded from the bag." (Ibid.) The court reversed the conviction for carrying a weapon capable of being concealed on the person.
In People v. De Falco (1959) 176 Cal.App.2d 590, 592, the court found that there was sufficient evidence of the size of the weapon where three witnesses were shown a gun with a two-inch barrel and testified that the gun the defendant was carrying was similar. The decision implicitly acknowledges the necessity for evidence of the length of the barrel to sustain a conviction for possessing a firearm capable of being concealed on the person under the statutory formulation.
The Attorney General argues that the prosecutor established all of the elements of the crime of carrying a concealed firearm on the person (§ 12025, subds. (a)(2), (f)), pointing to the manner in which the elements are articulated in CALCRIM No. 2520. The instruction states that the People must prove that the defendant 1. carried on his person a firearm capable of being concealed on the person, 2. That the defendant knew that he was carrying the firearm, and 3. That it was substantially concealed on the defendant's person. The instruction then goes on to provide that "A firearm capable of being concealed on the person is any device designed to be used as a weapon, from which a projectile is expelled or discharged through a barrel by the force of an explosion or other form of combustion and that has a barrel less than 16 inches in length." (Italics omitted.) Two alternative definitions of a firearm capable of being concealed on the person are provided (a device with a barrel longer than 16 inches "that is designed to be interchanged with a barrel less than 16 inches in length" or "any rocket, rocket-propelled projectile launcher, or similar device containing any explosive or incendiary material . . . .") but there is no suggestion that either alternative applies here.
The only element of the instruction that is at issue is the requirement that the barrel of the weapon be less than 16 inches in length. The Attorney General argues that the evidence established this element because the arresting officer "testified that appellant had a noticeable bulge in his waistband that was concealed under his jacket that, when patted down, felt like a gun. The item then fell to the ground and was revealed to, in fact, be a gun. No evidence contradicted [the officer's] testimony on that element." The Attorney General then argues that "[t]here was circumstantial evidence that appellant's gun barrel was under 16 inches in length" pointing to the absence of evidence that defendant's gait was affected by the gun in his waistband, and that the arresting officer "never described appellant's gun as having a long barrel."
"It is the prosecution's burden in a criminal case to prove every element of a crime beyond a reasonable doubt. [Citation.] To determine whether the prosecution has introduced sufficient evidence to meet this burden, courts apply the 'substantial evidence' test. Under this standard, the court 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence— that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cuevas (1995) 12 Cal.4th 252, 260.) "By definition, 'substantial evidence' requires evidence and not mere speculation. In any given case, one 'may speculate about any number of scenarios that may have occurred . . . . A reasonable inference, however, "may not be based on suspicion alone, or on imagination, speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact must be an inference drawn from evidence rather than . . . a mere speculation as to probabilities without evidence." ' " (People v. Cluff (2001) 87 Cal.App.4th 991, 1002.)
Viewing the evidence in the light most favorable to the trial court's judgment, there simply is no evidence concerning the size of the gun that the minor was carrying. The only evidence bearing in any way on the size of the weapon is the arresting officer's testimony that he observed a "little" bulge in the minor's waistband, which he suspected was a firearm. That the bulge was "little" hardly establishes the length of the barrel of the weapon causing the bulge. While there was no testimony that the gun was a long-barreled pistol or a sawed-off shotgun, as the Attorney General points out, neither was there any testimony that the weapon was small or, as in De Falco, looked like a gun with a two inch barrel. Under the record before us, the length of the weapon is entirely speculative. The evidence is thus insufficient to establish that of the minor was carrying a weapon capable of being concealed as defined by section 12001.
DISPOSITION
The jurisdictional finding as to the first allegation in the supplemental petition is stricken and the matter is remanded for redetermination of the maximum term of confinement.
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Pollak, J.
We concur:
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McGuiness, P. J.
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Jenkins, J.