Opinion
E069794
08-22-2018
In re D.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.
David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J272451) OPINION APPEAL from the Superior Court of San Bernardino County. Pamela P. King, Judge. Affirmed as modified. David R. Greifinger, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Seth M. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant D.M. (minor) admitted the allegation that he committed felony sexual battery of a person unlawfully restrained. (Pen. Code, § 243.4, subd. (a).) A juvenile court placed him in the custody of his parents on terms of probation, but did not adjudge him a ward of the court. The court also imposed a 10-year firearms prohibition. (§ 29805.) Minor now argues that the firearms prohibition was unlawfully imposed and should be stricken. The People concede, and we agree.
All further statutory references will be to the Penal Code, unless otherwise noted. --------
FACTUAL AND PROCEDURAL BACKGROUND
Minor sexually abused two of his younger cousins.
The San Bernardino County District Attorney filed a juvenile wardship petition, alleging that minor committed two counts of lewd acts upon a child. (§ 288, subd. (a), counts 1 & 2.) The court subsequently granted the People's motion to amend the petition by interlineation to add a new felony count of sexual battery of a person unlawfully restrained (§ 243.4, subd. (a), count 3) and to dismiss counts 1 and 2. Minor admitted count 3. The court found the allegation true and placed minor in his parents' custody, to be maintained in his mother's home, on summary probation terms. The court specifically stated that minor was not declared a ward of the court. It also prohibited minor from owning or possessing firearms, over the objection of minor's counsel. (§§ 29805, 29820.)
ANALYSIS
The Juvenile Court Erred in Imposing the Firearms Prohibition
Minor contends that the court erred when it ordered a firearms prohibition pursuant to sections 29805 and 29820. The People concede, and we agree. Therefore, we will strike the prohibition.
The record includes a prohibition of firearms pursuant to section 29820, subdivisions (a)-(d). Section 29820, subdivision (b), provides that "[a]ny person described in subdivision (a) shall not own, or have in possession or under custody or control, any firearm until the age of 30 years." Subdivision (a) provides that this section applies to any person who has satisfied the two requirements that the person has committed one of the offenses enumerated in subdivision (a)(1), and the person is subsequently adjudged a ward of the juvenile court. (§ 29820, subdivision (a)(2).) Here, the court expressly told minor, "you are not declared a ward of this court." Therefore, minor does not fall within the purview of section 29820, and the section does not apply to him.
We further note that, at the disposition hearing, minor's counsel properly objected to the firearms prohibition, since minor was not declared a ward. The court disagreed, stating, "I think 29805 provides for a ten-year firearms prohibition, notwithstanding lack of wardship." However, section 29805 does not apply to minor either. It provides that "any person who has been convicted of, or has an outstanding warrant for, a misdemeanor violation of Section 71, 76, 136.1, 136.5, or 140, subdivision (d) of Section 148, subdivision (f) of Section 148.5, Section 171b, paragraph (1) of subdivision (a) of Section 171c, Section 171d, 186.28, 240, 241, 242, 243, 243.4 . . . and who, within 10 years of the conviction . . . owns, purchases, receives, or has in possession or under custody or control, any firearm is guilty of a public offense, . . ." (Italics added.)
Adjudications under Welfare and Institutions Code section 602 are not criminal convictions, and proceedings in the juvenile court are not considered criminal proceedings. (In re Derrick B. (2006) 39 Cal.4th 535, 540; Welf. & Inst. Code, § 203.) Thus, minor has not been convicted of anything. We further note that minor admitted committing a felony violation of Penal Code section 243.4. Section 29805 does not apply here.
Therefore, we will strike the firearms prohibition the court imposed pursuant to section 29820 and/or section 29805.
DISPOSITION
The firearms prohibition imposed pursuant to Penal Code section 29820 and/or section 29805 is stricken. In all other respects, we affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: CODRINGTON
J. SLOUGH
J.