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In Re Joshua S., A Person Coming Under the Juvenile Court v. Joshua S

February 8, 2011

IN RE JOSHUA S., A PERSON COMING UNDER THE JUVENILE COURT LAW. THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSHUA S., DEFENDANT AND APPELLANT.



Contra Costa County Super. Ct. Nos. J-09-00693, J-09-00636

The opinion of the court was delivered by: Kline, P.J.

CERTIFIED FOR PARTIAL PUBLICATION*fn1

Joshua S. appeals from orders of the juvenile court revoking his probation. He contends the court erred in denying his motion to suppress evidence obtained as a result of an unlawful detention; failed to exercise its discretion to grant or deny deferred entry of judgment; and failed to make a finding as to whether his possession of concentrated marijuana was a felony or a misdemeanor. We agree that the motion to suppress was properly denied, but conclude the orders must be reversed and the matter remanded for the juvenile court to determine whether to grant or deny deferred entry of judgment and to determine the nature of the marijuana offense.

STATEMENT OF THE CASE

On April 29, 2009, a wardship petition was filed in San Francisco Juvenile Court (case No. JW 09-6258) alleging that appellant, then 16 years old, came within the provisions of Welfare and Institutions Code*fn2 section 602 on the basis of two offenses, possession of cocaine base for sale (Health and Saf. Code, § 11351.5) and falsely representing identity to a peace officer (Pen. Code, § 148.9). He was determined to be eligible for Deferred Entry of Judgment (DEJ).

On May 8, 2009, a wardship petition was filed in Contra Costa County Juvenile Court (J09-00693) alleging a violation of Penal Code section 69, resisting an executive officer. Appellant was determined eligible for DEJ. On May 11, the petition was amended to add two counts of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). Appellant admitted the two misdemeanors and the Penal Code section 69 charge was dismissed. On May 26, he was adjudged a ward and placed on probation, to reside in the home of his mother.

On May 27, 2009, appellant denied the allegations of the San Francisco petition. The matter was continued several times, and on September 10 appellant filed a motion to suppress evidence. The motion was heard and denied on November 10. On the prosecutor's motion, count 1 (possession of cocaine base for sale) was amended to allege that appellant acted as an accessory to a felony (Pen. Code, § 32) and count 2 (falsely representing identity to a peace officer) was dismissed. Appellant admitted the amended count 1, a felony. The case was transferred to Contra Costa County for disposition (renumbered J09-00636) and appellant was released to his mother's custody.

On December 4, 2009, a petition was filed in Alameda County Juvenile Court (SJ09013871-01) alleging four felony counts, possession of marijuana for sale (Health & Saf. Code, § 11359), two counts of transportation or sale of marijuana (Health & Saf. Code, § 11360, subd. (a)), and unlawful carrying of a loaded firearm (Pen. Code, §12031, subd. (a)(1)). Appellant was determined to be eligible for DEJ. Appellant filed a motion to suppress evidence, which was apparently not heard by the court. Rather, on December 29, count 1 of the petition was amended to allege possession of cannabis (Health & Saf. Code, § 11357, subd. (a)), appellant admitted this allegation and the other counts were dismissed. Appellant was detained at Juvenile Hall and the case was transferred to Contra Costa County for disposition.

In Contra Costa County, the San Francisco and Alameda cases were consolidated for disposition and the San Francisco case was consolidated with the Contra Costa lead case (J09-00693). On January 27, 2010, the court continued appellant as a ward and committed him to the Orin Allen Youth Rehabilitation Facility for six months, with an additional 90 day conditional release/parole period. On February 10, the court found appellant's maximum custody time to be four years and four months and awarded him 90 days of custody credit.

Appellant filed a timely notice of appeal on April 2, 2010.

STATEMENT OF FACTS*fn3 *fn4

On Sunday, April 26, 2009, San Francisco police officers Moylan, Montero and Lew, in plain clothes, were on duty in the area of 400 Ellis Street in San Francisco as part of a narcotics surveillance operation. The area is residential with some businesses and, on a Sunday afternoon, has a lot of "foot traffic." All the officers had experience with narcotics surveillance and described the area as known for narcotics transactions. As Officer Moylan put it, "more base rock cocaine gets sold and used in that area, that corner [the northwest corner of Ellis and Jones], that intersection than any block in San Francisco."

At about 2:30 that afternoon, Officer Moylan, using binoculars, observed appellant and another minor "hanging out" on the northwest corner of Ellis and Jones. Moylan testified, "They were looking around, and it kind of caught my attention. First of all by their stature, they are both short. And they look young, like they were juveniles. [¶] I've done a lot of surveillance in that area. I've watched a lot of people sell drugs, buy drugs. I've . . . been doing it for a long time. [¶] I saw them interacting with individuals who were hanging out in the area. Then I saw them walk into the [corner] store. . . . They walked out of the store, and they, to me, they didn't purchase anything. That kind of caught my attention." The people with whom the minors were interacting were much older and, based on Moylan's training and experience, appeared to be users of base rock cocaine. Moylan notified Officers Conway, Lew, and Montero and instructed them to detain the minors to identify them and see "what was going on." He had not seen appellant holding or possessing any controlled substance, handling cash, or exchanging anything with the people the officer believed to be cocaine users; he had not seen those people smoking crack; and his position had not permitted him to hear anything appellant was saying or to see inside the corner store.

In response to Officer Moylan, Officers Montero, Conway, and Lew drove to the area and contacted appellant and the other minor in the 300-block of Jones. Montero approached the other minor, identified himself as a police officer and asked if he could talk with him, where he was from and what his name was. The minor attempted to say something that Montero could not make out and Montero noticed white rocks in the minor's mouth which, based on his training and experience, Montero believed to be cocaine base. This occurred less than a minute into the encounter. Montero "deployed a mastoid technique" and ordered the minor to spit out the rocks in order to prevent the minor from swallowing them. The minor spit out 18 rocks, which Montero seized from the ground.

As Officer Montero approached the other minor, Officer Lew approached appellant, identified himself as a police officer and asked if he could speak with him. Appellant said, "yeah." Lew told appellant he wanted to speak with him based on the information Officer Moylan had relayed about his observations, and asked appellant's name and age, which appellant provided. As he was about to ask appellant where he lived, Lew looked over and saw the other minor spitting rocks of cocaine onto the sidewalk, within 10 feet of where Lew and appellant were standing. Lew told appellant, "[I]f you got any drugs in your mouth, spit it out now. I don't want [] you [to] swallow it and kill yourself trying to swallow drugs." Appellant spit one rock of what Lew believed to be rock cocaine onto the sidewalk. Lew asked if appellant had any more, reiterating that appellant could hurt or kill himself if he swallowed drugs. Appellant opened his mouth to show there was nothing else there. Lew arrested appellant and placed him in handcuffs, then collected the rock from the ground. Lew and Montero walked appellant and the other minor to the police station half a block away. There, Lew found four additional pieces of cocaine base in the other minor's pocket.

DISCUSSION

I.*fn5

Appellant contends his motion to suppress should have been granted because his detention was unlawful and resulted in an unconstitutional search and seizure. "The standard of review of a trial court's ruling on a motion to suppress is well established and is equally applicable to juvenile court proceedings. ' "On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court's ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court [which] are supported by substantial evidence and independently determine whether the facts support the court's legal ...


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