Opinion
E072582
11-04-2019
In re K.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.W., Defendant and Appellant.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick and Adrian R. Contreras, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J274368) OPINION APPEAL from the Superior Court of San Bernardino County. Stephanie Thornton-Harris, Judge. Affirmed. Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Tami Hennick and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.
The San Bernardino County District Attorney (the district attorney) filed a Welfare and Institutions Code section 602 petition alleging that defendant and appellant K.W. (minor) committed robbery (Pen. Code, § 211, counts 1 & 3) and assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4), count 2). A juvenile court granted the prosecutor's motion to amend the petition to add attempted second degree robbery (§§ 664, 211, count 4) and battery causing serious bodily injury (§ 243, subd. (d), count 5), with an agreement to dismiss counts 1 through 3 subject to a Harvey waiver. Minor admitted counts 4 and 5. The court continued her as a ward of the court maintained in the home of her mother, on terms of probation given to her in prior cases, plus a few added terms. Over defense objection, the court issued an order under Penal Code section 29820 prohibiting minor from owning, or having possession, custody, or control of, any firearm until the age of 30 years.
All further statutory references will be to the Penal Code, unless otherwise noted.
People v. Harvey (1979) 25 Cal.3d 754 (Harvey).
Although minor has turned 18, this opinion will still refer to her as minor, to avoid confusion.
On appeal, minor argues the court's order prohibiting her from owning, possessing, or having in her custody or control, a firearm until the age of 30 is unauthorized by law. We affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On January 3, 2018, the district attorney filed a juvenile wardship petition alleging that minor committed assault with caustic chemicals. (§ 244, counts 1-3.) The juvenile court granted the prosecutor's request to amend the petition to add battery causing serious bodily injury (§ 243, subd. (d), count 4), and to dismiss counts 1 through 3. Minor admitted count 4. The court declared minor a ward of the court and placed her in the care of her mother, under specified terms of formal probation. The court also prohibited minor from owning a firearm until she was 30 years old.
On September 18, 2018, the district attorney filed a subsequent juvenile wardship petition, alleging that minor committed robbery. (§ 211.) The court granted the prosecutor's motion to amend the petition to add accessory after the fact (§ 32, count 2) as a misdemeanor, and to dismiss count 1. Minor admitted count 2. The court continued minor as a ward of the court, placed in her mother's custody under the previously imposed probation terms, plus five added terms.
On December 12, 2018, the district attorney filed another wardship petition (the instant petition), alleging that minor committed robbery (§ 211, counts 1 & 3) and assault by means likely to produce great bodily injury (§ 245, subd. (a)(4), count 2). In this case, minor and her cohort were at Macy's, where they selected merchandise. Her cohort removed the security sensors and minor placed the items in a bag. Both girls walked past the cash registers without paying. When confronted by an employee and loss prevention officers, minor became verbally and physically combative; she pushed, punched, spit on them, and bit them. The court granted the prosecutor's motion to amend the petition to add attempted robbery (§§ 664, 211, count 4) and battery causing serious bodily injury (§ 243, subd. (d), count 5), and to dismiss counts 1 through 3 subject to a Harvey waiver. Minor admitted counts 4 and 5, and the court stated it would treat them as felonies. The court continued her as a ward of the court, maintained in the home of her mother, on terms of probation given to her in prior cases, plus a few added terms.
The facts are taken from a probation department report.
The court stated it believed there was a firearm restriction "under 243," and the prosecutor agreed. Defense counsel objected, arguing that section 29805 stated a firearm restriction for any person who had been convicted of the misdemeanors enumerated in that statute. She pointed out that minor admitted to felonies, not misdemeanors. The prosecutor asserted that the firearm restriction applied to all batteries and argued that imposing a firearm restriction for misdemeanor convictions, but not felony convictions, would be absurd. The court ordered counsel to return for another hearing to allow time to research the issue. It then continued minor as a ward of the court, maintained in her mother's home on the probation terms previously ordered, plus five added terms.
The court held a subsequent hearing solely on the firearm restriction issue. The prosecutor argued that section 29820 allowed the court to impose a firearm restriction on any person who had committed offenses and been adjudged a ward due to those offenses listed in the statutes enumerated in section 29820. The prosecutor also asserted that the list in section 29805 applied to "any felony." Minor's counsel argued that this was a juvenile adjudication, so minor did not have convictions, and the firearm prohibition did not apply to the charges that minor submitted to. However, the prosecutor pointed out that section 29820 applied to wards of the juvenile court. The court stated that it was going to apply section 29820 and "impose the gun restriction on [minor] based on the [] charge that she admitted to [sic]." The court added that its ruling did not make much difference because minor had a prior admission to section 243 as a felony, and the court had already imposed a firearm restriction on her.
ANALYSIS
The Court Properly Imposed the Firearm Restriction Under Section 29820
Minor argues that the firearm restriction ordered by the court was unauthorized and must be stricken since neither of the offenses for which she was adjudged a ward was listed in the statutes set forth in section 29820. We disagree.
Penal Code 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) states that subdivision (b) applies to any person who: (1) is alleged to have committed an offense listed in Welfare and Institutions Code section 707, subdivision (b), Penal Code sections 1203.073, subdivision (b), 29805, 25850, 25400, subdivision (a), or 26100, subdivision (a); and (2) was subsequently adjudged a ward of the court because the person committed an offense listed in those statutes. (Pen. Code, § 29820, subd. (a).)
Here, the court stated that it was applying Penal Code section 29820 to impose a firearm restriction on minor, based on the charge she admitted. Minor admitted she committed attempted robbery. (§§ 664, 211.) Penal Code section 29820 states that it applies to any person who is alleged to have committed, and was subsequently adjudged a ward due to, an offense listed in Welfare and Institutions Code section 707, subdivision (b). (Pen. Code, § 29820, subd. (a).) Welfare and Institutions Code section 707, subdivision (b) includes "[a]n offense described in Section [] 12022.53 of the Penal Code." (Welf. & Inst. Code, § 707, subd. (b)(17).) Attempted robbery is one of the felonies enumerated in Penal Code section 12022.53. (§ 12022.53, subds. (a)(4) ["This section applies to the following felonies: [¶] . . . [¶] Section 211 (robbery)"] & (a)(18) ["Any attempt to commit a crime listed in this subdivision . . . ."].) Therefore, the court properly imposed the firearm restriction pursuant to section 29820.
We note the People's argument that the Harvey waiver allowed the firearm restriction to be imposed for the dismissed robbery and assault counts. However, we see no need to address this argument, in light of our conclusion. --------
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.