Monterey County Super. Ct. No. J44711
The opinion of the court was delivered by: Premo, J.
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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 ...