IN RE: CHRISTIAN V. (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Minor Christian V. appeals from the juvenile court's order declaring him a ward of the court under Welfare and Institutions Code section 602, after sustaining misdemeanor allegations that he carried a dirk or dagger concealed upon his person (Pen.Code, § 12020, subd. (a)(4)),¹ committed vandalism under $400 in damages (§ 594, subd. (a)), and unlawfully possessed 28.5 grams or less of marijuana (Health & Saf.Code, § 11357, subd. (b)).  He was placed home on formal probation, and the court set the maximum term of confinement.   Minor contends substantial evidence does not support the findings the dirk or dagger was concealed upon his person and the substance found in his shoe was marijuana.   Minor further contends the maximum term of confinement should be stricken from the dispositional order.   We conclude the evidence was insufficient to establish that minor had possession of a concealed dirk or dagger and the maximum term of confinement should be stricken.   We affirm the judgment in all other respects.

FACTS

Prosecution Case

On June 25, 2009, at 8:45 p.m., Vernon City Police Officer Donald Vanover, driving in a marked patrol car, observed minor standing near another teenager who was spray painting graffiti on a wall.   Minor held an object in his left hand down at his side.   When the headlights of the patrol car illuminated him, minor discarded the object by dropping it in the street as he walked.   Officer Vanover could not tell what the object was.   Recovery of the object from the street revealed it was an Allen key, five to six inches in length.   The long end of the Allen key was filed down to a semi-point, turning it into a stabbing instrument.   Minor identified the Allen key as his, explaining that he used it for protection or carjacking.   He admitted he had been tagging his moniker.   Minor was carrying a small baggie of marijuana in his shoe.

Defense Case

Minor testified that he was walking home from a friend's house when the police stopped him.   He denied to the police he was tagging or in possession of an Allen key.   Minor testified the baggie found in his shoe contained marijuana.

DISCUSSION

I. Substantial Evidence

A. There is No Substantial Evidence Minor Carried the Allen Key Concealed

Upon His Person

Minor contends the finding the Allen key was concealed upon his person was not supported by substantial evidence.   We agree with the contention.

“The same standard governs review of the sufficiency of evidence in adult criminal cases and juvenile cases:  we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable fact finder could find guilt beyond a reasonable doubt.”  (In re Matthew A. (2008) 165 Cal.App.4th 537, 540.)

Section 12020, subdivision (a)(4) makes it a crime for a person to “carr[y] concealed upon his or her person any dirk or dagger.” ²  Substantial concealment is sufficient.  (People v. Wharton (1992) 5 Cal.App.4th 72, 75;  People v. Fuentes (1976) 64 Cal.App.3d at 953, 955 [“A defendant need not be totally successful in concealing a dirk to be guilty of violation of Penal Code section 12020, subdivision (a)”].)

“To conceal is ‘1:  to prevent disclosure or recognition of:  avoid revelation of:  refrain from revealing:  withhold knowledge of:  draw attention from:  treat so as to be unnoticed ․ 2:  to place out of sight:  withdraw from being observed:  shield from vision or notice․’  (Webster's New Internat.   Dict. (3d ed.1993) p. 469.)”  (People v. Hodges (1999) 70 Cal.App.4th 1348, 1355.)

There is no evidence in the record that minor concealed the sharpened Allen key on his person.   Officer Vanover did not testify the object was concealed.   The officer testified he saw something he could not identify in minor's hand, which was down by his side.   He did not testify that minor moved the item to his side in a way that concealed it from the officer.   While we have no difficulty with the concept that a dirk or dagger may be concealed in one's hand, there simply is no evidence of such concealment in this case.   Absent substantial evidence of concealment, the section 12020 finding must be reversed.

B. The Prosecution Presented Substantial Evidence that the Substance Minor

Carried in His Shoe was Marijuana

Minor contends substantial evidence does not support the finding at the close of the People's case that the substance found in minor's shoe was marijuana.   We disagree with the contention.

Officer Vanover testified that he found “a small baggie containing what I believed was marijuana” in one of minor's shoes.   The juvenile court sustained minor's objection to the answer based on a lack of foundation.   Thereupon, the prosecutor elicited the following evidence from Officer Vanover:  (1) as a narcotics canine handler for two years, Officer Vanover had seen marijuana in large quantities and small quantities such as “small baggies that are commonly seen on the streets” more than a thousand times;  (2) in more than 90 percent of those more than a thousand cases, his identification of the item as marijuana was confirmed by laboratory analysis;  and (3) when he recovers a substance he suspects is marijuana, he immediately subjects it to a narcotics identification test to determine if it is marijuana.   At the close of the prosecution's case, minor moved for an order dismissing the petition under Welfare and Institutions Code section 701.1 ³ for insufficient evidence.   The motion was denied.

On a motion to dismiss the petition under Welfare and Institutions Code section 701.1, “the trial court is required ‘to weigh the evidence, evaluate the credibility of witnesses, and determine that the case against the [minor] is “proved beyond a reasonable doubt before [the minor] is required to put on a defense[.]” ’  [Citation.]”  (In re Anthony J. (2004) 117 Cal.App.4th 718, 727 [fn. omitted].)   A minor whose testimony supplies evidence that cures the evidentiary deficiency in the People's case does not waive the right to complain about the juvenile court's earlier erroneous denial of a motion to dismiss.  (Id. at p. 732.)  “[R]eview of an unsuccessful motion for [dismissal] is limited to the evidence introduced at the time the motion was made․”  (Id. at p. 730.)

Substantial evidence supports the juvenile court's finding.   After the court sustained minor's objection, the prosecutor laid a foundation for admission of Officer Vanover's testimony which cured the deficiency.   Minor did not object to the foundation that was laid or move to strike the officer's testimony about minor's possession of marijuana.   Accordingly, by the end of the People's case, the record contained the following evidence and reasonable inferences from the evidence.   A small baggie that Officer Vanover believed contained marijuana was found concealed in minor's shoe.   Officer Vanover is correct more than 90 percent of the time when he suspects a substance as marijuana.   It is reasonable to infer that a substance carried in public concealed in one's shoe is an illegal substance.   From the evidence Officer Vanover normally subjects suspicious substances to a narcotics identification kit test, it is reasonable to infer that he tested the suspicious substance he found on minor and determined it was marijuana.   From the evidence that small quantities of marijuana are commonly seen on the streets packaged in small baggies, it is reasonable to infer that the substance found in this case on minor packaged in a small baggie was marijuana.   All the foregoing is substantial evidence in the record at the close of the People's case that the substance minor possessed in his shoe was marijuana.

II. Maximum Term of Confinement

Minor contends, respondent concedes, and we agree that the juvenile court was not authorized to set the maximum term of physical confinement, because minor was not removed from parental custody.

Welfare and Institutions Code section 726, subdivision (c), provides in part as follows:  “If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare & Institutions Code] Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court.”   Where a minor is placed home on probation and not removed from his parents' custody, the juvenile court lacks the authority to set the maximum term of confinement.  (In re Matthew A., supra, 165 Cal.App.4th at p. 541.)

As the juvenile court did not remove minor from parental custody, the court lacked the authority to set a maximum term of confinement.

DISPOSITION

The finding that minor violated Penal Code section 12020, subdivision (a)(4) is reversed.   The calculation of minor's maximum period of confinement is stricken.   In all other respects, the judgment is affirmed.

KRIEGLER, J.

We concur:

ARMSTRONG, Acting P. J.

KUMAR, J.^*

FOOTNOTES

FN1. Hereinafter, all statutory references are to the Penal Code, unless otherwise indicated..  FN1. Hereinafter, all statutory references are to the Penal Code, unless otherwise indicated.

FN2. “As used in ․ section [12020], a ‘dirk’ or ‘dagger’ means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death ․ “ (§ 12020, subd. (c)(24).).  FN2. “As used in ․ section [12020], a ‘dirk’ or ‘dagger’ means a knife or other instrument with or without a handguard that is capable of ready use as a stabbing weapon that may inflict great bodily injury or death ․ “ (§ 12020, subd. (c)(24).)

FN3. “At the hearing, the court, on motion of the minor ․, shall order that the petition be dismissed ․, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602․”  (Welf. & Inst.Code, § 701.1.).  FN3. “At the hearing, the court, on motion of the minor ․, shall order that the petition be dismissed ․, after the presentation of evidence on behalf of the petitioner has been closed, if the court, upon weighing the evidence then before it, finds that the minor is not a person described by Section 601 or 602․”  (Welf. & Inst.Code, § 701.1.)

FOOTNOTE.  FN*.  Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.