In re K.G. CA1/4

Filed 12/19/13 In re K.G. CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re K.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. K.G., A138890 Defendant and Appellant. (San Francisco County Super. Ct. No. JW136081)

Appellant K.G. admitted that he carried a concealed weapon, in violation of Penal Code section 25400, subdivision (a)(2).1 He appeals a subsequent dispositional order in which the juvenile court declared him to be a ward of the court and placed him on probation. At no time below did the juvenile court explicitly determine and state whether the offense would have been punishable as a felony or, alternatively, a misdemeanor if it had been committed by an adult. We agree with K.G. and the Attorney General that the matter must be remanded for such a determination and statement. (Welf. Inst. Code, § 702.)

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

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I. FACTUAL AND PROCEDURAL BACKGROUND On March 3, 2013, 17-year-old K.G. was searched by San Francisco police and found to be carrying a concealed, loaded Berretta .22 caliber handgun. A two-count petition was filed (Welf. & Inst. Code, § 602), which was amended within a few weeks. The amended petition alleged that K.G. violated section 25400, subdivision (a)(2), which provides that a person is guilty of carrying a concealed firearm if the offender “[c]arries concealed upon the person any pistol, revolver, or other firearm capable of being concealed upon the person.” The offense can be punishable either as a misdemeanor or a felony (a “wobbler”), but the petition identified the count as a felony “punishable under Penal Code section 25400(c)(4).” This subdivision provides that carrying a concealed firearm is a felony if “the person is not in lawful possession of the firearm or the person is within a class of persons prohibited from possessing or acquiring a firearm pursuant to [various statutes].” The amended petition did not specify whether K.G. fell into either of these two categories (or track the statute’s language, for that matter). At a hearing held on the same day the amended petition was filed, K.G.’s counsel stated that K.G. would admit the concealed-weapon count. Before the juvenile court took the admission, K.G.’s counsel stated that K.G. was admitting to a violation of section 25400, subdivision (a)(2), but argued that the violation was not a felony under subdivision (c)(4) because the statutes cited in the subdivision did not apply to K.G. Without elaboration, the People contended that K.G. was covered by section 25400, subdivision (c)(4). The juvenile court asked, “Well, he’s pleading now to a felony, correct?” Counsel for the People confirmed that he was, and the trial court responded, “All right. So, I understand the issue.” The juvenile court then accepted K.G.’s admission. The court specifically asked K.G. whether he admitted that he “committed a felony, a violation of section 25400(a)(2) of the California Penal Code, in that you unlawfully carried a concealed . . . Beretta .22 handgun,” and K.G. confirmed that he