In re D.F. CA4/1 ( 2015 )

Filed 9/10/15 In re D.F. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re D.F., a Person Coming Under the
Juvenile Court Law.
D067714
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J257618)
v.
D.F.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of San Bernardino County, Barbara A.
Buchholz, Judge. Affirmed and remanded with instructions.
Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Kristen
Hernandez, Deputy Attorneys General, for Plaintiff and Respondent.
D.F. appeals the juvenile court's orders declaring him a ward of the court under
Welfare and Institutions Code section 6021 and placing him on probation. D.F. contends
the court erred in denying his motion to suppress evidence because he was detained by
police without reasonable suspicion. D.F. also contends the court failed to make
declarations on the record as to whether the charges against him were felonies or
misdemeanors. We remand for the juvenile court to declare whether D.F.'s firearm
possession offense is a felony or misdemeanor. The orders are otherwise affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Around 2:00 a.m. San Bernardino police officers Steve Taylor and Brandon
Nelson were dispatched to the 1700 block of West Union Street after the police received
a report that approximately seven gunshots were heard in the vicinity. The officers were
patrolling separately and Nelson arrived at the scene first, minutes after receiving the call.
Nelson was traveling westbound on the 1600 block of the street and Taylor was traveling
eastbound. Nelson saw a 12-year-old boy standing on the sidewalk in front of the house
at 1688 West Union Street and pulled over. When he got out of his car he saw 16-year-
old D.F. was standing in the front yard of the same house, which appeared dark except
for the porch light.
Nelson thought D.F.'s presence in the yard was suspicious. He asked the boys if
they had seen anything or heard gunshots in the area and the 12-year-old responded he
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
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had not. Nelson searched the 12-year-old and while doing so asked D.F. why he was
outside and if he had identification. D.F. responded that his girlfriend lived in the house
and he was leaving to go home. Nelson told D.F. to come over the yard's fence to the
sidewalk to talk with him. By this time Taylor had arrived and was standing next to
Nelson while Nelson searched the 12-year-old. D.F. complied with Nelson's request and
climbed over the fence to the sidewalk where Nelson was standing. Nelson then asked
D.F. if he possessed anything illegal on his person. D.F. responded that he had a gun in
his pocket. Nelson handcuffed D.F. then searched him and discovered a handgun in
D.F.'s left front pant pocket. Nelson testified the interaction from the time he arrived at
the scene until he handcuffed D.F. lasted approximately five minutes.
The district attorney filed a petition under section 602 alleging D.F. committed the
offenses of possession of a firearm by a minor (Pen. Code § 29610, count 1) and
possession of live ammunition by a minor (Pen. Code § 29650, count 2). D.F. filed a
motion to suppress all evidence obtained before his arrest, asserting it was obtained
during an unlawful detention. The prosecutor opposed the motion contending the
evidence was obtained during a consensual encounter. The juvenile court denied the
motion, agreeing with the prosecutor that there was no detention. The court also found
the allegations in count 1 true and dismissed count 2. At a subsequent hearing, the court
declared D.F. a ward of the court and placed him on probation.
While on probation, D.F. was detained again for breaking into a home in Colton,
California. D.F. was identified by a neighbor who saw him and two other men jump the
fence of the home. The district attorney filed a second petition under section 602 alleging
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D.F. committed first degree residential burglary (Pen. Code § 459, count 1) and prowling
(Pen. Code § 647, subd. (h), count 2). The petition was later amended to add an
allegation of second degree commercial burglary (Pen. Code § 459, count 3.). At the
dispositional hearing, the court dismissed counts 1 and 2, and D.F. admitted the
allegation in count 3. The juvenile court stated the level of the offense was a felony,
declared D.F. a continued ward of the court, and placed him in the custody of his mother.
DISCUSSION
I
D.F. contends the juvenile court erred in denying his motion to suppress because
the discovery of the gun was a product of a detention that was not supported by
reasonable suspicion of criminal activity. Our review of a ruling on a motion to suppress
in a juvenile court proceeding is the same as our review of a motion to suppress in an
adult criminal proceeding. This court defers to the juvenile court's factual findings when
supported by substantial evidence (People v. Camacho (2000) 23 Cal. 4th 824, 830) and
exercises independent judgment to determine if the facts found by the juvenile court
support its determination that the search was reasonable under the Fourth Amendment.
(Ibid.; People v. Brown (2015) 61 Cal. 4th 968, 975.)
A
"Police contacts with individuals may be placed into three broad categories
ranging from the least to the most intrusive: consensual encounters that result in no
restraint of liberty whatsoever; detentions, which are seizures of an individual that are
strictly limited in duration, scope, and purpose; and formal arrests or comparable
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restraints on an individual's liberty." (In re Manuel G. (1997) 16 Cal. 4th 805, 821.)
"Consensual encounters do not trigger Fourth Amendment scrutiny." (Ibid.)
To lawfully detain an individual, an officer must have a reasonable, articulable
suspicion that the person has committed or is about to commit a crime. (In re Manuel G.,
supra, 16 Cal.4th at p. 821.) A "detention does not occur when a police officer merely
approaches an individual on the street and asks a few questions. [Citation.] As long as a
reasonable person would feel free to disregard the police and go about his or her business,
the encounter is consensual and no reasonable suspicion is required on the part of the
officer. Only when the officer, by means of physical force or show of authority, in some
manner restrains the individual's liberty, does a seizure occur. [Citations.]" (Ibid.)
There is no bright-line distinction between a consensual encounter and a detention.
To make such a determination the court must examine the totality of the circumstances.
(In re Manuel G., supra, 16 Cal.4th at p. 821.) "Circumstances establishing a seizure
might include any of the following: the presence of several officers, an officer's display
of a weapon, some physical touching of the person, or the use of language or of a tone of
voice indicating that compliance with the officer's request might be compelled.
[Citations.] The officer's uncommunicated state of mind and the individual citizen's
subjective belief are irrelevant in assessing whether a seizure triggering Fourth
Amendment scrutiny has occurred." (Ibid.) "In some circumstances, a child's age
'[affects] how a reasonable person' in the suspect's position 'would perceive his or her
freedom to leave.' " (J.D.B. v. North Carolina (2011) 564 U.S. __ [131 S. Ct. 2394, 2402-
2403].)
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For a detention to be lawful, "the circumstances known or apparent to the officer
must include specific and articulable facts [which would cause the officer] to suspect that
(1) some activity relating to crime has taken place or is occurring or about to occur, and
(2) the person [the officer] intends to stop or detain is involved in that activity."
(In re Tony C. (1978) 21 Cal. 3d 888, 893.) "[T]he reasonable suspicion standard . . . is
not a particularly demanding one, but is, instead, 'considerably less than proof of
wrongdoing by a preponderance of the evidence.' " (People v. Letner (2010) 50 Cal. 4th
99, 146 (Letner).) This approach allows officers to draw on their own training and
experience in deciding whether criminal activity is afoot. (United States v. Arvizu (2002)
534 U.S. 266, 273.) The detention is valid so long as the officer can " ' "provide some
objective manifestation that the person detained may be involved in criminal activity." ' "
(Letner, at p. 145.)
B
Here, the facts support D.F.'s contention that he was detained at the time he
admitted having a gun. The contact began while D.F. and Nelson were separated by a
fence and D.F. stood in the yard of his girlfriend's house. At that point, D.F. perhaps
could have left the scene and gone back inside his girlfriend's house. However, Nelson
then told D.F. to come over the yard's fence. D.F. complied with Nelson's request that he
climb over the fence and come to where the two uniformed officers were standing, and
where D.F.'s 12-year-old companion was already detained and being searched by Nelson.
A show of force was created both by the presence of Nelson and Taylor, two uniformed
officers, and by the fact that the other minor was being physically searched by Nelson at
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the time. Given these facts, a reasonable person of D.F.'s age would not have felt free to
either leave or to disregard the questions asked by Nelson.2
D.F. next asserts suppression was required because Nelson detained D.F. without
reasonable suspicion of criminal activity. D.F. asserts it was unreasonable for Nelson to
detain him because Nelson and Taylor had no information suggesting the gunshots were
fired by two African-American males, there was no odor of gunpowder or spent casings
at the location where the detention occurred, and Nelson had not investigated the 1700
block of West Union Street where the shots were reportedly fired. D.F. also points to the
fact that his girlfriend later came outside and identified D.F. as her boyfriend.
These facts, however, did not negate other facts and circumstances supporting
Nelson's detention of D.F. (See Letner, supra, 50 Cal.4th at 146 ["the possibility of
innocent explanations for the factors relied upon by a police officer does not necessarily
preclude the possibility of a reasonable suspicion of criminal activity."].) Nelson and
Taylor were responding to a report that approximately seven gunshots were heard coming
from the block immediately west of where D.F. and his 12-year-old companion were
standing at the time Nelson arrived. Further, the boys were outside at 2:00 a.m., far past
the 10:00 p.m. curfew in effect for minors at the time, and were standing in the yard of a
home that was dark and appeared locked for the night. These facts supported the officers'
suspicion that D.F. might have been involved in the reported gunfire. (See People v.
2 The fact that Nelson phrased his request for D.F. to come over the fence as a
question and not a demand does not mean there was no detention. (See In re J.G. (2014)
228 Cal. App. 4th 402, 412 ["phrasing a statement as a request rather than a command
[does not] necessarily prevent[] a detention from occurring."].)
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Castaneda (1995) 35 Cal. App. 4th 1222, 1229-1230 [reasonable suspicion existed where
the defendant was sitting in a parked car, late at night, in an otherwise abandoned
commercial industrial area where police were investigating a reported burglary].)
Accordingly, Nelson's detention of D.F. and subsequent retrieval of the gun after D.F.
admitted it was in his pocket did not run afoul of the Fourth Amendment. The court did
not err in denying D.F.'s motion to suppress.
II
D.F. next contends the juvenile court erred in failing to declare on the record
whether the firearm possession and burglary offenses were felonies or misdemeanors, as
required by section 702. With respect to the burglary offense, the juvenile court
expressly declared the offense was a felony on the record. The juvenile court, however,
did not make a declaration with respect to the firearm possession offense. As the
Attorney General concedes, remand is warranted for the juvenile court to make an
express declaration with respect to this offense.
"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." (§ 702.) An express declaration by the court is
mandatory. (In re Manzy W. (1997) 14 Cal. 4th 1199, 1204 (Manzy W.); see Cal. Rules of
Court, rule 5.780(e)(5).) In addition to serving an administrative purpose, the
requirement that the juvenile court declare whether a " 'wobbler' " offense is a
misdemeanor or felony "serves the purpose of ensuring that the juvenile court is aware of,
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and actually exercises, its discretion under Welfare and Institutions Code section 702."
(Manzy W., at p. 1207.)
The fact that a section 602 petition sustained by the juvenile court describes a
charged offense as a felony does not by itself indicate compliance with the court's
statutory obligation to explicitly declare whether the offense is a felony or misdemeanor.
(In re Kenneth H. (1983) 33 Cal. 3d 616, 619-620.) Likewise, juvenile court minutes
containing a notation that the court found the minor committed a charged felony offense
does not establish compliance with the court's statutory obligation to explicitly declare
whether the offense is a felony or misdemeanor if the hearing transcript does not support
the notation. (In re Dennis C. (1980) 104 Cal. App. 3d 16, 23.)
Failure to make an express declaration does not result in " 'automatic' " remand.
(Manzy W., supra, 14 Cal.4th at p. 1209.) The record in a given case may show that the
juvenile court, despite its failure to comply with the statute, was aware of its duty and
exercised its discretion to determine the felony or misdemeanor nature of a wobbler.
(Ibid.) "In such case, when remand would be merely redundant, failure to comply with
the statute would amount to harmless error." (Ibid.) The key issue is "whether the record
as a whole establishes that the juvenile court was aware of its discretion to treat the
offense as a misdemeanor and to state a misdemeanor-length confinement limit." (Ibid.)
Here, with respect to D.F.'s burglary offense, the court stated the "[l]evel of the
offense is a felony" at the dispositional hearing. The minute order for the hearing states
the "court finds [the] offense(s) would be a felony if committed by an adult." That order
also states "The minor voluntarily admits allegation Count 3 01/16/2015 PC459
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misdemeanor on subsequent petition filed 01/21/12015" and "The court finds true as to
the following allegation: Count 3 01/16/2015 PC459 misdemeanor on subsequent petition
filed 01/21/2015." D.F. contends these second two notations show a discrepancy and
contradict the earlier statement in the order and the trial court's statement at the hearing
that the offense was being treated as a felony. He argues that in addition to stating the
level of the offense was a felony, the court was also explicitly required to state it was
exercising its discretion to treat the offense as a felony. We disagree.
Under the statute the court was required to "declare the offense to be a
misdemeanor or felony." (§ 702.) The hearing transcript shows the juvenile court made
the requisite declaration, stating clearly: "Level of the offense is a felony." This
statement was not vague, as D.F. asserts, and demonstrated both the court's awareness of
its discretion and proper exercise of that discretion. No further statement concerning the
court's awareness of its discretion was required. (See Manzy W., supra, 14 Cal.4th at p.
1204 [the statute "requires an explicit declaration by the juvenile court whether an
offense would be a felony or misdemeanor in the case of an adult."].)
In contrast, with respect to D.F.'s earlier firearm possession offense the court made
no declaration concerning the level of the offense. Remand is not necessarily required in
the absence of an express declaration if the record otherwise shows the court's awareness
and exercise of its discretion. (Manzy W., supra, 14 Cal.4th at p. 1209.) The record here,
as the Attorney General concedes, does not support such a conclusion and remand is
warranted.
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DISPOSITION
The matter is remanded for the limited purpose of an express declaration by the
juvenile court whether the firearm possession offense is a felony or misdemeanor. The
juvenile court's orders are otherwise affirmed.
IRION, J.
WE CONCUR:
MCCONNELL, P. J.
O'ROURKE, J.
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