IN RE L.C.

No. C083115.

In re L.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.C., Defendant and Appellant.

Court of Appeals of California, Third District, Sacramento.


NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

BUTZ, J.

L.C. (the minor) contends on appeal there is insufficient evidence to support the trial court's finding that he violated probation. We agree and reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The minor was declared a ward of the juvenile court and was on probation. (Welf. & Inst. Code, § 602.)1 The minor's probation conditions required him to: "[n]ot own or have any dangerous weapons in his possession nor knowingly remain in any residence, building or vehicle where he knows or should know that any person unlawfully has such a weapon nor knowingly remain in the presence of anyone he/she knows or should know is an unlawfully armed person, and not own or possess any item that a reasonable person would mistake for a real firearm."

In June 2016, the minor was living in a hotel provided by the witness relocation program, after receiving threats for testifying in a murder case. He was allowed to have guests in the daytime but not overnight. At 10:00 a.m. on June 22, 2016, District Attorney Investigators David Kidd and Gil Tournour went to the minor's hotel room to check his compliance with the witness protection agreement regarding guests and conduct a probation search. Kidd heard two voices from inside and noticed the front door was ajar and the lights were off. Kidd knocked on the door, identified himself, and asked for the minor. Although the minor was not present when the officers arrived, in the room were K.B., a male, D.C., the minor's younger brother, a woman and her two children. Kidd testified that it seemed they all had been sleeping when the investigators arrived. Kidd informed K.B., D.C., the woman and her children that overnight guests were not allowed and asked them to collect their belongings and leave. After they all got dressed and the woman and D.C. separately used the bathroom, they did so. It took them 10 to 15 minutes to leave.

Investigator Kidd then began his search of the minor's room, which was an "absolute mess," and noticed a pair of blue Nike sneakers on top of a shoe box in the closet next to the bed. Kidd testified the shoes caught his attention because, in his experience, blue Nikes are associated with the Crip street gang. As Kidd was photographing the shoes, the minor returned to the room. Kidd asked the minor if the shoes were his, and the minor replied "yes." Kidd examined the shoes and found a loaded nine-millimeter magazine in one of the shoes. Without prompting from Kidd, the minor said the magazine was K.B.'s and K.B. had a gun that went with it. Kidd and Tournour handcuffed minor, continued the search, and found an unloaded nine-millimeter semiautomatic handgun in the toilet tank, wrapped in a T-shirt. Kidd testified the magazine would fit the handgun he found. The handgun's serial number was difficult to read due to either rust or alteration, but Kidd was able to decipher it and determine the gun was purchased by a different individual in Sacramento.

The probation officer alleged the minor violated probation by possessing a dangerous and deadly weapon on June 22, 2016. The district attorney filed a section 777 motion to modify, change or set aside previous orders based on allegations the minor violated probation by: possessing a gun on June 21, 2016 (count one); knowingly remaining in the presence of someone he knew, or should have known, was unlawfully armed on June 21, 2016 (count two); knowingly remaining in the presence of someone he knew, or should have known, was unlawfully armed with a nine-millimeter semiautomatic handgun on June 22, 2016 (count three); and knowingly remaining in a building where he knew, or should have known, that a person unlawfully had a dangerous weapon, to wit: a nine-millimeter semiautomatic handgun on June 22, 2016 (count four).

After a contested hearing, the juvenile court found true counts three and four and dismissed the remaining counts and allegations. The court reasoned that the minor "knew [K.B.], that you knew he had been in your room, that it was your room, and that you made a spontaneous statement that the ammunition belonged to a gun that belonged to [K.B.], which is both direct evidence of your relationship with [K.B.] and circumstantial evidence that you had been in the presence of [K.B.] and the firearm." The court ordered the minor to serve 117 days in county jail, with 117 days of credit for time served. The minor filed a timely notice of appeal.

DISCUSSION

The minor challenges the trial court's finding that he violated probation. According to the minor, there was no evidence indicating he knew K.B. possessed the gun unlawfully, as required by his probation condition. On the evidence presented, we agree.

The People must prove a minor's violation of probation by a preponderance of the evidence. (§ 777, subd. (c).) On appeal, we consider whether "there is substantial evidence of solid value, contradicted or uncontradicted, which will support the [juvenile] court's decision." (People v. Kurey (2001) 88 Cal.App.4th 840, 848-849.) "[A]ll conflicting evidence will be resolved in favor of the decision." (Id. at p. 849.) A trial court has broad discretion in determining a probation violation, and we interfere with that discretion only in an extreme case. (People v. Rodriguez (1990) 51 Cal.3d 437, 443; see Kurey, at p. 848.)

We agree with the juvenile court that the record contains ample evidence that the minor remained in K.B.'s presence and in the hotel room despite knowing that K.B. had a gun and ammunition, including the minor's unprompted statement that the ammunition was K.B.'s and that K.B. had a gun to go with the ammunition. Also, as the People contend, Investigator Kidd's testimony that the gun was not purchased by K.B. and was hidden in the toilet tank is sufficient circumstantial evidence to establish that the gun was stolen and K.B. possessed the gun illegally.

However, the probation condition stated minor could not "knowingly remain in any residence, building or vehicle where he knows or should know that any person unlawfully has such a weapon nor knowingly remain in the presence of anyone he/she knows or should know is an unlawfully armed person, and not own or possess any item that a reasonable person would mistake for a real firearm." (Italics added.) Accordingly, the People were required to prove by a preponderance of the evidence that the minor knew or should have known that K.B. was unlawfully armed. We agree with the minor that the record contains no such evidence. The record does not indicate that the gun was inherently illegal to possess or that K.B. was prohibited from having a gun. In addition, there is no evidence the minor knew or should have known that K.B. did not originally purchase the gun. Further, that the gun was hidden would not by itself indicate that the gun was stolen, given there were children in the hotel room. Because the juvenile court did not find by a preponderance of the evidence that the minor possessed the handgun, we decline the People's invitation to do so on appeal. Accordingly, there is insufficient evidence to establish the minor violated his probation.

DISPOSITION

The judgment (order revoking probation) is reversed.

NICHOLSON, Acting P. J. and HOCH, J., concurs.

FootNotes


1. Undesignated statutory references are to the Welfare and Institutions Code.

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