IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
December 22, 2010
IN RE R.C., A PERSON COMING UNDER THE JUVENILE COURT LAW,
THE PEOPLE, PLAINTIFF AND RESPONDENT,
R.C., DEFENDANT AND APPELLANT.
Monterey County Super. Ct. No. J44711
The opinion of the court was delivered by: Premo, J.
In re R.C. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On February 19, 2010, a petition was filed in Monterey County juvenile court alleging that R.C., a minor, came within the provisions of Welfare and Institutions Code section 602, in that he was a minor in possession of a firearm capable of being concealed on the person (Pen. Code, § 12101, subd. (a)(1), count 1), carried a concealed firearm on his person with unexpended ammunition immediately accessible to him (id., § 12025, subd. (a)(2), count 2), possessed live ammunition (id., § 12101, subd. (b)(1), count 3), and was driving without a license (Veh. Code, § 12500, subd. (a), count 4). Counts 1 and 2 were designated as felonies. Counts 3 and 4 were designated as misdemeanors.
The minor brought a motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1. The hearing on the motion to suppress and the contested jurisdictional hearing were held concurrently, following which the juvenile court denied the motion, found count 4 not true, and found counts 1, 2, and 3 true beyond a reasonable doubt. The court declared the minor a ward of the court for two years and placed him on probation with terms and conditions. This timely appeal followed.
On appeal, the minor argues that the trial court erred in denying his motion to suppress evidence of the firearm obtained during a pat search of his person, and that the court failed to determine whether counts 1 and 2 were misdemeanors or felonies. We agree with the latter contention and shall remand the matter for the juvenile court to make the requisite determination.
I. MOTION TO SUPPRESS EVIDENCE
In his motion to suppress the evidence the minor argued that the officer did not have reasonable suspicion to justify the search that resulted in the discovery of the gun in his waistband. The minor also maintained that he had not consented to the search but had yielded to a show of authority or to the officer's trick. The following facts were elicited at the hearing.
Around 5:17 p.m. on February 17, 2010, Police Officer Jesus Yanez was on duty, in full uniform, when he observed the minor talking to his girlfriend at the entrance to the King City library. About three to four hours earlier, fellow Officer Robles had told Yanez that a confidential informant had indicated that the minor was seen carrying a handgun. Without activating his emergency lights, Yanez parked his car, got out, and walked over to the minor. Yanez was acquainted with the minor. He greeted him and started talking about the minor's brother. They chatted for about two to three minutes, during which Yanez noticed the minor looked a little nervous, looking back and over to the side, and his hands were shaky. The minor's nervousness made Yanez think that the information he had received earlier was possibly true. At that point, Yanez asked "if it was okay for me to pat search him, just so other people wouldn't think he was giving me information." The minor said he "didn't have anything." Yanez told him that if he did not have anything, then he had nothing to worry about. He said, "[L]et's just go through it, that way people don't think that you're quote 'ratting them out.' " At that point, the minor turned around without saying anything and placed his hands behind him, indicating his agreement to being searched.
The standard pat search procedure requires the officer to get control of the person's hands, so Yanez grabbed the minor's hands "without applying any excess of force to him" and asked him to spread his legs. The minor complied. Yanez touched his waistband and "immediately, just like that, I noticed--I felt the butt of a handgun" toward the right side of the waistband. At that point, "[o]fficer safety kicked in" and Yanez immediately applied more pressure to his hands and called for assistance. He leaned the minor against his patrol vehicle "as another tool to restrain him and keep him, you know, keep the situation safe." Yanez placed the minor in handcuffs and retrieved a handgun from the minor's waistband. As he did so, the minor volunteered that he had bullets in his pocket. Yanez found four rounds of .32-caliber bullets. The minor told him that he had the gun for protection.
B. The Juvenile Court's Ruling
The juvenile court held that the multiple hearsay upon which Yanez relied was insufficient to support a reasonable suspicion to stop and search the minor. "However, with respect to the issue of consent or detention, the question then becomes, was there a detention, and when did the detention occur?" The court found that the encounter was consensual. The minor had "many avenues to leave, as well as there was no police officer show of authority." The court further held that the minor's response, "I do not have anything on me" was a refusal of Yanez's first request to pat search him but that the refusal did not turn the encounter into a detention because the officer respected the minor's response.
The court went on to find that when Yanez said, "well, let's do this so that others won't think you're a snitch" the encounter remained consensual as there had been no anger, no commands from the officer, and no show of force. The minor voluntarily turned around and placed his own hands behind his back. The encounter became a detention when the officer put his hands on the minor. "But at that point it was a consensual detention by way of a consent to pat search." And once the officer felt the butt of the gun, the officer had "cause to search the minor in order to recover the firearm." Accordingly, the court denied the suppression motion.
C.The Standard of Review
" ' "An appellate court's review of a trial court's ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] 'The [trial] court's resolution of each of these inquiries is, of course, subject to appellate review.' [Citations.] [¶] The court's resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, . . . is also subject to independent review." ' " (People v. Ayala (2000) 23 Cal.4th 225, 255.)
The applicable rule of law is that pertaining to pat searches. That rule is well settled. Voluntary consent to search confers authority upon the law enforcement officer to conduct the search and establishes the reasonableness of the search. (Illinois v. Rodriguez (1990) 497 U.S. 177, 184; People v. Michael (1955) 45 Cal.2d 751, 753.) Consent to search must be voluntary and free rather than a mere submission to express or implied authority, duress, or coercion. To determine whether a particular search was authorized by consent, courts focus on what a reasonable person would have understood by the exchange between the officer and the person searched. (Florida v. Jimeno (1991) 500 U.S. 248, 251.) "The question of the voluntariness of the consent is to be determined in the first instance by the trier of fact; and in that stage of the process, 'The power to judge credibility of witnesses, resolve conflicts in testimony, weigh evidence and draw factual inferences, is vested in the trial court.' " (People v. James (1977) 19 Cal.3d 99, 107.) "[T]here is no talismanic phrase which must be uttered by a suspect in order to authorize a search. . . . Indeed, no words at all need be spoken: in appropriate circumstances, consent [to search] may be unmistakably manifested by a gesture alone." (Id. at p. 113.) Determination of voluntariness is a fact to be resolved by considering all attendant circumstances. (Schneckloth v. Bustamonte (1973) 412 U.S. 218, 248-249.)
Courts look at the following factors to determine whether consent was voluntary: whether the encounter occurred in a public place, whether the suspect consented to speak with the officers, whether the officers informed the individual that he was not under arrest and was free to leave, whether there was a threatening presence of several officers and a display of weapons or physical force, and whether the officer's tone of voice was such that the requests would likely be obeyed. (United States v. Yusuff (7th Cir. 1996) 96 F.3d 982, 985-987.) Other factors have included the youth of the accused, educational level, intelligence, length of detention, and use of physical punishment (Schneckloth v. Bustamonte, supra, 412 U.S. at pp. 248-249), knowledge of the right to refuse consent (id. at p. 227), and the officer's assertion of commands or directions. (United States v. Chan-Jimenez (9th Cir. 1997) 125 F.3d 1324, 1327.)
The juvenile court's finding that the minor voluntarily consented to the search is supported by the record. The officer was known to the minor and his family. They had a nonconfrontational chat about the minor's brother. The officer did not accuse the minor of any crimes, did not display his emergency lights, and did not draw his weapon. The officer respected the minor's first refusal. When the officer asked a second time, he did so without any threats or overt show of authority but suggested that by agreeing to be searched the minor would demonstrate to anyone looking on that he was not then acting as a snitch. It was at that point that the minor demonstrated his agreement to be searched by turning his back to the officer and placing his hands behind him.
The minor argues that California case law recognizes that police deception may render a purportedly consensual search illegal. According to the minor, Yanez tricked him into consenting by suggesting that he search him to show onlookers that he was not a snitch. In support, he relies upon People v. Reyes (2000) 83 Cal.App.4th 7 (Reyes) and People v. Reeves (1964) 61 Cal.2d 268 (Reeves). These cases are distinguishable.
In Reeves, police officers had a hotel manager phone the defendant in his hotel room to tell him that there was a letter for him at the front desk. When the defendant opened the door to his room the police were able to see a marijuana cigarette inside. The Supreme Court held that this was an unlawful visual entry. (Reeves, supra, 61 Cal.2d at p. 273.) The court stated, "It is well settled by both federal and state decisions that 'an entry obtained by trickery, stealth or subterfuge renders a search and seizure invalid.' " (Ibid.)
In Reyes,the police went to the defendant's residence to conduct a narcotics investigation. They planned to search anyone they could lure outside. An undercover officer dressed in jeans and a T-shirt peered through the front screen door and said that he hit defendant's truck in the alley. When defendant walked outside to check for auto damage, he was ordered to put his hands behind his back while one officer pinned his thumbs and searched his pockets, then asked for consent to search his person for weapons. The defendant responded, " 'What different does it make, you've already done it.' " (Reyes, supra, 83 Cal.App.4th at p. 9.) The appellate court ruled that the detention was unlawful. (Id. at p. 13.)
Both Reeves and Reyes are distinguishable from the instant case in that both involved a ruse, deception, or trickery. Nothing like that occurred here. Yanez suggested that by submitting to a pat search the minor would demonstrate to anyone looking on that he was not cooperating with police. That was not a lie. It was a truthful observation of the circumstances, which the officer used to persuade the minor to consent. If, as the minor argues, the law recognizes that a person risks social opprobrium by cooperating with law enforcement, certainly the minor recognized the same thing, which is undoubtedly why the officer made the point. But the officer's encouragement was not deception like that the officers used in Reyes or Reeves. (See People v. Colt (2004) 118 Cal.App.4th 1404, 1409 [distinguishing Reyes].) Indeed, it did not trap the minor into a search but allowed the minor another opportunity to decline with a simple "no" or an explanation that he was unworried about how the encounter would look to others. We conclude, therefore, that the juvenile court did not err in denying the motion to suppress.
II. DESIGNATING COUNTS 1 AND 2 AS FELONIES
Counts 1 and 2 alleged violations of Penal Code sections 12101, subdivision (a)(1) and 12025, subdivision (a)(2), respectively. The petition designated both violations as felonies but, as the Attorney General concedes, both violations may be treated as either misdemeanors or felonies. (Pen. Code, §§ 12101, subd. (c), 12025, subd. (b)(6).)
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." As the California Supreme Court has explained, the statute "is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult." (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) The statute "serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702." (Id. at p. 1207.) "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." (Id. at p. 1209.)
The minor contends that the court erred in failing to declare counts 1 and 2 to be either felonies or misdemeanors. The Attorney General argues that the juvenile court described the two offenses as felonies when it sustained the petition and that designation is sufficient. We agree with the minor.
The petition refers to counts 1 and 2 as felonies. The court's minutes refer to the counts by number only. The reporter's transcript shows that the court made its findings, in pertinent part, as follows: "With respect to the--first we'll take Count 1. The Petition alleges on the 17th of February of this year that the minor committed a felony, a violation of Penal Code section 12101 [subdivision] (a)(1), that he did willfully and unlawfully possess a revolver capable of being concealed on the person. The court will find . . . that true beyond a reasonable doubt. . . . [¶] With respect to Count 2, same date and time, a violation of Penal Code section 12025 [subdivision] (a)(2), a felony, that the minor did willfully and unlawfully conceal upon his person a revolver or firearm . . . the court will find that is true beyond a reasonable doubt."
The foregoing demonstrates that the juvenile court was reading the petition's language when the court described counts 1 and 2 as felonies. There is no indication that the court was aware of and exercised its discretion to designate the two acts as either felonies or misdemeanors. Accordingly, remand is the appropriate remedy.
The judgment is reversed and the matter is remanded with instructions that the juvenile court declare the allegations of count 1 (Pen. Code, § 12101, subd. (a)(1), minor in possession of concealable firearm) and count 2 (Pen. Code, § 12025, subd. (a)(2), possession of a concealed firearm) as either felonies or misdemeanors, as required by Welfare and Institutions Code section 702.
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