Delinquency Case Law

In re Christopher K. (2001) 91 Cal.App.4th 853 [110 Cal.Rptr.2d 914]. Court of Appeal, Fourth District, Division 3.

The juvenile court adjudged a child a ward of the court for violating Penal Code sections 12101(a) (possession of a firearm) and 12090 (obliterating the identification of a firearm).

The Anaheim police searched an open motel room to investigate a report that someone had a gun. The child was found sitting on the bed of the motel room, and a gun-with the serial number filed off-was found in the nightstand drawer. The child admitted to placing the gun in the drawer but denied obliterating the serial number. The juvenile court found that the child had violated both Penal Code sections 12101 and 12090. The child appealed the juvenile court's finding on the count concerning section 12090, contending that the statute's presumption under section 12091 was unconstitutional.

The Court of Appeal reversed the decision of the juvenile court and determined that section 12091 is unconstitutional. Penal Code section 12090 states that any person who changes, alters, removes, or obliterates a gun's identification without permission of the Department of Justice is guilty of a felony. Section 12091 provides that possession of a pistol or revolver on which the name of the maker, the model, the manufacturer's number, or any other mark of identification has been changed, altered, removed, or obliterated must be presumptive evidence that the possessor has changed, altered, removed, or obliterated the information. The parties in this case agreed that the court's only basis for finding that the child had violated section 12090 was that presumption in section 12091.

Section 12091 is a mandatory presumption. A mandatory presumption requires the trier of fact to conclude that a presumed fact is true if it finds the underlying fact true. (See Ulster County Court v. Allen (1979) 442 U.S. 140.) The appellate court stated that unless the underlying fact--in this case, possession of the altered gun--alone satisfies the reasonable-doubt standard with regard to the charged offense of obliteration, the presumption is constitutionally invalid. The Second and Fifth Districts have determined that possession of an altered weapon is not sufficient to prove that the defendant obliterated the identification information on the weapon. (See People v. Henderson (1980) 109 Cal.App.3d 59 and People v. Wandick (1991) 227 Cal.App.3d 918.) The appellate court reversed the finding that the child in this case obliterated the identification of the firearm. It also urged the Legislature to repeal or amend section 12091 and urged in the interim that the trials courts disregard it.