IN RE: JORGE M. (1998)

Court of Appeal, Second District, Division 4, California.

IN RE: JORGE M., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JORGE M., Defendant and Appellant.

No. B108677.

Decided: September 14, 1998

Lorraine L. Loder, under appointment by Court of Appeal, Los Angeles, for Defendant and Appellant. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, and Rama R. Maline, Deputy Attorney General, for Plaintiff and Respondent.

Jorge M.¹ appeals from an order sustaining a petition brought under Welfare and Institutions Code section 602.   The petition charged him with possession of an assault weapon in violation of Penal Code section 12280, subdivision (b) and unlawful firearm activity in violation of a condition of probation pursuant to Penal Code section 12021, subdivision (d).²  He argues the evidence is insufficient to establish that he actually possessed an assault weapon in violation of section 12280 or that he knew the rifle was an assault weapon.   We find no substantial evidence to support the assault weapon violation, and reverse.

Appellant also argues the evidence is insufficient to establish that he possessed firearms in violation of the conditions of his probation.   We conclude that the evidence was sufficient to sustain the petition on this ground.   Finally, appellant argues the juvenile court erred in failing to designate whether it found each offense to be a felony or misdemeanor pursuant to Welfare and Institutions Code section 702.   We remand for that finding.

FACTUAL AND PROCEDURAL SUMMARY

On November 11, 1996, pursuant to a plea agreement in case number FJ15217, appellant was made a ward of the court after admitting that he had been in possession of a controlled substance.   Among the conditions of probation imposed were that appellant “[n]ot have any dangerous or deadly weapons” and that he “[s]ubmit to search and seizure and testing and urinalysis.”

On December 5, 1996, Los Angeles Police Department officers and probation officers conducted a probation investigation at appellant's home.   It consisted of one large room with a bunk bed in one corner.   A door led off this main room to appellant's parents' bedroom.   Officer Brian Tsubokawa asked appellant where he kept his personal possessions.   Appellant pointed to the bunk bed area in the main room.   Officer Tsubokawa did not ask appellant where he slept, and appellant did not offer that information.

Officer Manuel Ramirez went to the bunk bed and found three rifles on the top bunk:  a .22 caliber Remington rifle, a .243 caliber Remington rifle, and a .30-.30  caliber Winchester rifle.   None of the weapons were loaded.   Appellant told Officer Ramirez that the top bunk was his.   Officer Ramirez also found a Russian-made SKS-45 assault rifle on top of a clothes cabinet, no more than 3 feet from appellant's bed.   The firearms were not registered.

On December 6, 1996, the present petition was filed against appellant under Welfare and Institutions Code section 602, charging him with possession of an assault weapon (§ 12280, subd. (b)) and with unlawful firearm activity in violation of the terms and conditions of probation (§ 12021, subd.(d)).

At the adjudication hearing, appellant's brother, Juan M., testified that all the rifles belonged to him, not to appellant.   He said that he slept on the top bunk bed, that there was no mattress below, and that the area below the top bunk was used only for storage.   According to Juan, appellant slept in a bedroom used by their sisters.   Juan said that he had taken the rifles from a closet and placed them on the bed because he was going to take them to another brother's home for safekeeping while he went to Mexico for his wedding, accompanied by other family members.   Juan left for work before the police officers arrived on December 5th.

Appellant's mother, Josefina M., corroborated Juan's account.   Appellant testified in his own behalf saying that he slept in the bedroom with his sisters and that the weapons belonged to his father.   He denied ever playing with the weapons.

The juvenile court found the allegations of the petition true.   Appellant was placed in a Camp Community Placement Program for a period not to exceed three years and eight months.   He filed a timely notice of appeal.

DISCUSSION

I

Appellant first challenges the sufficiency of the evidence that he possessed an assault weapon in violation of section 12280, subdivision (b).   He argues there is no evidence that he actually possessed the weapon or that he knew or appreciated that the weapon found in his home was a prohibited assault weapon.

“When reviewing a judgment, an appellate court ‘must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”  [Citation.]  “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence ․ such that 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 could reasonably deduce from the evidence.’ ”  [Citation.]'․”  (In re Manuel G. (1997) 16 Cal.4th 805, 822, 66 Cal.Rptr.2d 701, 941 P.2d 880.)

 “Whether the evidence is direct or circumstantial, our inquiry is to determine if any reasonable trier of fact could have found appellant guilty beyond a reasonable doubt.  [Citation.]  An appellate court's belief that the circumstantial evidence can reasonably be reconciled with innocence does not warrant interference with the determination of the trier of fact.   [Citation.]”  (In re Nathaniel C. (1991) 228 Cal.App.3d 990, 999, 279 Cal.Rptr. 236.)

 Applying these standards, we are satisfied there is substantial evidence from which the trial court could conclude that appellant possessed the assault weapon.   The officers testified that appellant identified the bunk as his sleeping area, and the assault rifle was found on top of a chest less than three feet from the bunk bed.

 The question of appellant's knowledge that the weapon was an assault rifle is not so easily resolved.   The petition alleged a violation of section 12280, a part of the Roberti-Roos Assault Weapons Control Act of 1989.  (§ 12275 et seq.;   Stats.1989, ch. 19, § 3.)   Section 12275.5 expresses the legislative intent of the Act:  “The Legislature hereby finds and declares that the proliferation and use of assault weapons poses a threat to the health, safety, and security of all citizens of this state.   The Legislature has restricted the assault weapons specified in Section 12276 based upon finding that each firearm has such a high rate of fire and capacity for firepower that its function as a legitimate sports or recreational firearm is substantially outweighed by the danger that it can be used to kill and injure human beings.   It is the intent of the Legislature in enacting this chapter to place restrictions on the use of assault weapons and to establish a registration and permit procedure for their lawful sale and possession.   It is not, however, the intent of the Legislature by this chapter to place restrictions on the use of those weapons which are primarily designed and intended for hunting, target practice, or other legitimate sports or recreational activities.”

Section 12280, subdivision (b), also part of the Act, provides in pertinent part:  “[A]ny person who, within this state, possesses any assault weapon, except as provided in this chapter, is guilty of a public offense and upon conviction shall be punished by imprisonment in the state prison, or in a county jail, not exceeding one year.”   The mens rea element of this offense has not been the subject of previous judicial review.   Section 20 states the general mens rea rule in California:  “In every crime or public offense there must exist a union, or joint operation of act and intent, or criminal negligence.”

Appellant cites Staples v. United States (1994) 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 to support his position that knowledge of the prohibited character of the weapon is required.   Our case closely resembles Staples.   The arguments and logic are the same.

In Staples, the defendant was charged with a violation of the National Firearms Act, 26 United States Code section 5801 et seq.   The charge was based on possession of an AR-15 assault rifle which had been modified with a selector switch from an M-16 to be capable of fully automatic firing.   The defendant said the rifle had never fired automatically while in his possession, and fired imperfectly in the semiautomatic mode.  (Id. at p. 603, 114 S.Ct. 1793.)   He was prosecuted under 26 United States Code section 5861, subdivision (d) of the National Firearms Act. That statute provides:  “[I]t shall be unlawful for any person ․ to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record.”

As the Staples court observed, the federal statute is silent concerning the mens rea required for a violation.   But this silence was not dispositive.   “[S]ilence on this point by itself does not necessarily suggest that Congress intended to dispense with a conventional mens rea element, which would require that the defendant know the facts that make his conduct illegal.   See [United States v. Balint (1922) 258 U.S. 250] at 251, 42 S.Ct., at 302 [66 L.Ed. 604] (stating that traditionally, ‘scienter’ was a necessary element in every crime)․   On the contrary, we must construe the statute in light of the background rules of the common law, [citation], in which the requirement of some mens rea for a crime is firmly embedded.   As we have observed, ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’  [Citation.]  See also Morissette v. United States, 342 U.S. 246, 250, 72 S.Ct. 240, 243, 96 L.Ed. 288 (1952) (‘The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion.   It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil’).”  (Staples v. United States, supra, 511 U.S. at p. 605, 114 S.Ct. 1793.)

In Staples, the Supreme Court recognized a line of precedent that dispensed with the mens rea requirement in favor of a form of strict criminal liability in certain public welfare or regulatory offenses when it was plain that Congress so intended.  (511 U.S. at p. 606, 114 S.Ct. 1793.)   But the court went on to examine this line of cases, and concluded that strict criminal liability offenses have been recognized only in limited circumstances.  (Id. at pp. 606-607, 114 S.Ct. 1793.)  “In such situations, we have reasoned that as long as a defendant knows that he is dealing with a dangerous device of a character that places him ‘in responsible relation to a public danger,’ [citation], he should be alerted to the probability of strict regulation, and we have assumed that in such cases Congress intended to place the burden on the defendant to ‘ascertain at his peril whether [his conduct] comes within the inhibition of the statute.’  [Citation.]  Thus, we essentially have relied on the nature of the statute and the particular character of the items regulated to determine whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements.   See generally Morissette, supra, at 252-260, 72 S.Ct., at 244-248.”  (Id. at p. 607, 114 S.Ct. 1793.)

In footnote 3, following the passage just quoted, the Staples court examined the limitations of the strict criminal liability line of cases:  “While use of the term ‘strict liability’ is really a misnomer, we have interpreted statutes defining public welfare offenses to eliminate the requirement of mens rea;  that is, the requirement of a ‘guilty mind’ with respect to an element of a crime.   Under such statutes we have not required that the defendant know the facts that make his conduct fit the definition of the offense.   Generally speaking, such knowledge is necessary to establish mens rea, as is reflected in the maxim ignorantia facti excusat.   [Citations.]”  (511 U.S. at p. 607.)

The government argued that guns, like grenades and narcotics, which are subject to strict criminal liability, are potentially harmful devices, and therefore the assault weapon ban should be considered a strict criminal liability offense.   The Supreme Court rejected the argument in light of the history of innocent gun possession in this country, holding that the destructive potential of the banned assault weapons “cannot be said to put gun owners sufficiently on notice of the likelihood of regulation to justify interpreting § 5861(d) as not requiring proof of knowledge of a weapon's characteristics.”  (Staples v. United States, supra, 511 U.S. at p. 612, 114 S.Ct. 1793.)   The Supreme Court also considered the harsh penalty imposed for violation of the statute.  (Id. at p. 616, 114 S.Ct. 1793.)

The Staples court reversed the conviction, holding that the government should have been required to prove that the defendant knew of the features of his rifle that brought it within the scope of the Act. (511 U.S. at p. 619, 114 S.Ct. 1793.)

No California court has yet applied the reasoning of Staples to the statute before us.³  But in People v. Simon (1995) 9 Cal.4th 493, 37 Cal.Rptr.2d 278, 886 P.2d 1271, the California Supreme Court addressed the issue of strict criminal liability in the context of a violation of the Corporate Securities Law of 1968 (Corp.Code, § 25000 et seq.).   The issue was whether statutes which criminalize the sale or purchase of securities by means of oral or written communications which either contain false or misleading statements or omit material facts, create a strict liability offense.   The Simon court concluded, “[K]nowledge of the falsity or misleading nature of a statement or of the materiality of an omission, or criminal negligence in failing to investigate and discover them, are elements of the criminal offense described in [Corporations Code] section 25401.”   (Id. at p. 522, 37 Cal.Rptr.2d 278, 886 P.2d 1271.)

In reaching this conclusion, the court examined cases interpreting the mens rea element of section 32(a) of the Securities Exchange Act of 1934 (15 U.S.C. § 78a et seq.), upon which the California statute is modeled.   It concluded that federal decisions had differed on whether scienter was required to establish a violation.   Construing the language of the California statute, the Supreme Court examined the limitations on strict criminal liability imposed by the United States Supreme Court:  “Finally, we are mindful that ‘[t]he existence of a mens rea is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence.’  [Citations.]  The Supreme Court has indicated that regulatory or ‘public welfare’ offenses which dispense with any mens rea, scienter, or wrongful intent element are constitutionally permissible, but it has done so on the assumption that the conduct poses a threat to public health or safety, the penalty for those offenses is usually small, and the conviction does not do ‘grave damage to an offender's reputation.’  [Citation.]  It has also observed that ‘[w]hile strict-liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements [citation], the limited circumstances in which Congress has created and this Court has recognized such offenses, [citations], attest to their generally disfavored status.’   [Citation.]”  (People v. Simon, supra, 9 Cal.4th at pp. 519-520, 37 Cal.Rptr.2d 278, 886 P.2d 1271, fn. omitted.)

The Simon court noted that the United States Supreme Court often has implied an intent element.  “Notwithstanding this limited acceptance of such offenses, an acceptance that is qualified by the court's refusal to permit abandonment of a mens rea requirement if the statute involves conduct that would constitute a common law malum in se offense, the court continues to express concern about the due process implications of regulatory or public welfare offenses which impose strict liability regardless of fault or awareness that the conduct is prohibited.   This concern is reflected in the court's attempt, whenever possible, to imply such intent or awareness in federal statutes, and its admonition that such statutes are more likely to pass constitutional muster if they regulate dangerous activities.  [Citation.]”  (9 Cal.4th at p. 520, 37 Cal.Rptr.2d 278, 886 P.2d 1271.)

The court recognized that it had not had the occasion to consider the permissible scope of the public welfare or regulatory crime exception to the rule that criminal intent or negligence is a necessary element of a criminal offense.  (People v. Simon, supra, 9 Cal.4th at p. 521, 37 Cal.Rptr.2d 278, 886 P.2d 1271.)  “[T]hat exception has not been applied in this state to offenses which, like section 25401, do not involve conduct which threatens the public health or safety and are punishable with lengthy prison terms.   The exception continues to be restricted to crimes of the type described in Vogel [People v. Vogel (1956) 46 Cal.2d 798, 299 P.2d 850].  (See, e.g., People v. Matthews (1992) 7 Cal.App.4th 1052, 1057 [9 Cal.Rptr.2d 348] [storage of hazardous waste];  People v. Martin (1989) 211 Cal.App.3d 699, 714 [259 Cal.Rptr. 770, 86 A.L.R.4th 383] [transportation and disposal of hazardous waste];  People v. Chevron Chemical Co. (1983) 143 Cal.App.3d 50, 53-54 [191 Cal.Rptr. 537] [discharge of wastes into watercourse];  Aantex Pest Control Co. v. Structural Pest Control Bd. (1980) 108 Cal.App.3d 696 [166 Cal.Rptr. 763] [unlicensed poison].)”  (Ibid.)

The court also recognized that strict criminal liability is increasingly disfavored.  “We have recognized, however, a ‘prevailing trend “away from the imposition of criminal sanctions in the absence of culpability where the governing statute, by implication or otherwise, expresses no legislative intent or policy to be served by imposing strict liability.”  (People v. Hernandez (1964) 61 Cal.2d 529, 533 [39 Cal.Rptr. 361, 393 P.2d 673, 8 A.L.R.3d 1092];  ․ )’ ” (People v. Simon, supra, 9 Cal.4th at p. 521, 37 Cal.Rptr.2d 278, 886 P.2d 1271.)

We are aware of a series of weapons cases decided by California appellate courts before both Staples v. United States, supra, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 and People v. Simon, supra, 9 Cal.4th 493, 37 Cal.Rptr.2d 278, 886 P.2d 1271, which held that the prosecutor need not prove the defendant's knowledge of the characteristics of a weapon which made its possession illegal.   As we explain, in light of the principles announced in Staples and in Simon, we do not find the rationale of the earlier cases persuasive.

In People v. Corkrean (1984) 152 Cal.App.3d 35, 199 Cal.Rptr. 375, the defendant was found guilty of possession of a machine gun in violation of section 12220.   The appellate court concluded that knowledge that the weapon possessed is an automatic is not an element of the offense.   At the time, section 12220 provided that “ ‘[a]ny person ․ who within this state ․ possesses or knowingly transports any firearms of the kind commonly known as a machine gun ․ is guilty of a public offense ․’ ” and “machine gun” was defined to include any weapon that shoots automatically more than one shot, without manual reloading.  (Id. at p. 37, 199 Cal.Rptr. 375.)   The Corkrean court examined other statutes in the Dangerous Weapons Control Law and concluded that the Legislature's omission of the word “knowingly” from the possession of a machine gun, while using that term to describe other offenses, was indicative of an intent to omit the mens rea requirement.  (Id. at pp. 39-40, 199 Cal.Rptr. 375.)

In light of the principles stated in People v. Simon, supra, 9 Cal.4th 493, 37 Cal.Rptr.2d 278, 886 P.2d 1271 and Staples v. United States, supra, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608, we do not find the reasoning of the Corkrean court persuasive.   The Corkrean court did not have the benefit of more recent jurisprudence which limits the circumstances in which we may infer a legislative intent to create a strict criminal liability offense.

Corkrean was followed by People v. Azevedo (1984) 161 Cal.App.3d 235, 207 Cal.Rptr. 270.   In that case, the defendant was convicted of possession of a sawed-off shotgun in violation of section 12020.   The Azevedo court held that the absence of the word “knowingly” in section 12020 “reflects the Legislature's intent that possessing a sawed-off shotgun is a crime even though the defendant does not know the dimensions of the weapon or reasonably believes those dimensions bring the weapon within lawful limits.”  (Id. at p. 241, 207 Cal.Rptr. 270.)   The court went on:  “[T]here are numerous instances where culpability has been completely eliminated as a necessary element of criminal conduct.  [Citation.]  The case before us is one of those instances where it is evident that the public policy considerations relating to the substantial harm associated with possessing a dangerous or deadly weapon prompted the Legislature to delete the need for a person to know the contraband character of that weapon.   It is not a heavy burden for a person who knowingly possesses a sawed-off shotgun to first determine the dimensions of that weapon or otherwise possess it at his or her own peril.”  (Ibid.)

In People v. Valencia (1989) 214 Cal.App.3d 1410, 263 Cal.Rptr. 301, the defendant was convicted of possession of a sawed-off shotgun in violation of section 12020, subdivision (a).   The court followed People v. Corkrean, supra, 152 Cal.App.3d 35, 199 Cal.Rptr. 375 and People v. Azevedo, supra, 161 Cal.App.3d 235, 207 Cal.Rptr. 270, in ruling that knowledge of the illegal character of the weapon was not an element of the offense.   The Valencia court reasoned:  “Sawed-off shotguns, automatic rifles, and other patently dangerous weapons present a wholly different situation.   They are not ambiguous substances.   They are, as Justice Douglas said of hand grenades, ‘highly dangerous offensive weapons.’  (United States v. Freed (1971) 401 U.S. 601, 609 [28 L.Ed.2d 356, 362, 91 S.Ct. 1112].)”  (214 Cal.App.3d at p. 1415, 263 Cal.Rptr. 301.)   Based on this rationale, the Valencia court concluded that the Legislature “could rationally conclude that anyone who sees such a device can and should be assumed to recognize its potentially lethal character;  that anyone proposing to take possession of such a device must ascertain whether such possession is legal;  and that anyone taking possession without confirming the legal right to do so runs the risk that his or her conduct will be punished as a felony.”  (Id. at p. 1416, 263 Cal.Rptr. 301.)   As we have discussed, the United States Supreme Court expressly rejected this rationale in the later case of Staples v. United States.   (511 U.S. at pp. 610-611, 114 S.Ct. 1793.)

In People v. Lanham (1991) 230 Cal.App.3d 1396, 282 Cal.Rptr. 62, the defendant was convicted of possession of a bullet which carries or contains an explosive agent in violation of section 12020, subdivision (a).   The Lanham court followed Corkrean and Valencia in concluding that the Legislature was aware of the decision in People v. Daniels (1953) 118 Cal.App.2d 340, 257 P.2d 1038 when it enacted the prohibition on possession of such bullets.   The Daniels court had concluded that the Legislature's selective use of the term “knowingly” in weapons possession statutes reflected an intent to distinguish “between possessory and other offenses requiring knowledge, and possessory offenses punishable without regard to the defendant's awareness of the character of the item possessed.  [Citation.]  [The Daniels court] held that knowledge that the weapon possessed is an automatic one is not an element of the crime proscribed by section 12220.”  (230 Cal.App.3d at p. 1403, 282 Cal.Rptr. 62, fn. omitted.)

We conclude that possession of an assault weapon in violation of section 12280 does not come within the limited class of regulatory or public welfare offenses in which we may infer the absence of any mens rea or scienter element without a clear expression of legislative intent to that effect.   A violation under this section may be punished as a felony, a harsh penalty.   As the court in Simon observed, in recent years, such public welfare offenses in California have been limited to activities such as the improper handling of hazardous materials.  (See cases collected in Simon, supra, 9 Cal.4th at p. 521, 37 Cal.Rptr.2d 278, 886 P.2d 1271.)

There is no evidence that appellant knew that the weapon possessed characteristics which brought it within the statutory definition of an assault weapon.   This was an element of the offense.   As the United States Supreme Court recently observed in Bryan v. United States (1998) 524U.S. 184, ----, 118 S.Ct. 1939, 141 L.Ed.2d 197:  “[I]n Staples v. United States, 511 U.S. 600 [114 S.Ct. 1793, 128 L.Ed.2d 608] we held that a charge that the defendant's possession of an unregistered machinegun was unlawful required proof ‘that he knew the weapon he possessed had the characteristics that brought it within the statutory definition of a machine gun.’  [Citation.]  It was not, however, necessary to prove that the defendant knew that his possession was unlawful.”   We agree with the analysis in Bryan.   The prosecution must prove a criminal defendant has knowledge that the weapon is an assault weapon, but need not prove that a criminal defendant has knowledge of the law banning the possession of unregistered assault weapons.

II

 Appellant challenges the sufficiency of the evidence that he possessed weapons in violation of a condition of his probation, an offense under section 12021, subdivision (d).   He admits that he was on probation, and that one of the conditions prohibited him from possession of dangerous or deadly weapons.   He challenges only the evidence to establish his possession of the firearms.

As we have discussed, there was ample evidence to support the juvenile court's conclusion that appellant possessed the firearms.   He identified the top bunk bed as his, and three rifles were found at that location.   This was sufficient to establish his possession.  (See People v. Clark (1996) 45 Cal.App.4th 1147, 1151, 1156, 53 Cal.Rptr.2d 99 [evidence supported conviction of being felon in possession of firearm where defendant admitted that he knew there was a shotgun in the motorhome where he was living];  People v. Llamas (1997) 51 Cal.App.4th 1729, 1743, 60 Cal.Rptr.2d 357 [sufficient evidence that defendant, a felon, possessed firearm, where he was observed opening hood of car in which a gun was found, despite wife's testimony that she had placed the weapon under the hood].)   The trial court was not required to credit the testimony of appellant's family members over the testimony of the officers who conducted the search.

III

 Appellant points out that the trial court failed to declare whether the offenses were misdemeanors or felonies.  Welfare and Institutions Code section 702 provides in pertinent part:  “If 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.”   Although both the offenses appellant was found to have committed were “wobblers,” the juvenile court failed to make the declaration required by the statute.

In light of our reversal of the assault weapons charge, we need not address the issue as to that count.   But, as to the charge of violating section 12021, we must remand for the proper declaration under Welfare and Institutions Code section 702.   As in In re Manzy W. (1997) 14 Cal.4th 1199, 1209-1210, 60 Cal.Rptr.2d 889, 930 P.2d 1255, there is no indication on the record to establish the juvenile court was aware of its discretion to sentence the offense as a misdemeanor rather than a felony.

DISPOSITION

The finding that appellant possessed an assault weapon in violation of section 12280 is reversed.   The finding that he possessed firearms in violation of section 12021 is affirmed.   The matter is remanded to the juvenile court for a declaration pursuant to Welfare and Institutions Code section 702 and possible recalculation of the maximum period of physical confinement.

FOOTNOTES

1.   Appellant is also referred to as George M. at times in the briefing and in the record below.

2.   All further statutory references are to the Penal Code unless otherwise indicated.

3.   The Supreme Court has granted review in Kasler v. Lungren (S069522), which considered the constitutionality of a different aspect of the Roberti-Roos Assault Weapons Control Act.

EPSTEIN, Associate Justice.

CHARLES S. VOGEL, P.J., and HASTINGS, J., concur.