California Court of Appeals, First District, First Division
In re M.G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, M.G., Defendant and Appellant.
[CERTIFIED FOR PARTIAL PUBLICATION[*]]
Trial Court San Francisco City and County Superior Court No. JW 13-6121, Hon. Susan M. Breall, Trial Judge:
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Jeffrey A. Needelman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette and Gerald A. Engler, Assistant Attorneys General, Eric D. Share and Ronald E. Niver, Deputy Attorneys General for Plaintiff and Respondent.
Margulies, Acting P.J.
A petition under Welfare and Institutions Code section 602 charged appellant M.G. with felony carrying of a concealed firearm on his person. Following the juvenile court’s denial of his motion to suppress evidence, appellant entered an admission he committed the charged offense, but declined to stipulate the offense was a felony rather than a wobbler. The trial court found otherwise, declared a wardship, and placed appellant with his parent subject to conditions of probation. Appellant contends the judgment must be reversed because (1) the trial court erred in denying his motion to suppress evidence; (2) the court erred following his guilty plea to count 1 by determining his offense was punishable as a felony under Penal Code section 25400, subdivision (c)(4); and (3) the prosecutor erroneously determined he was ineligible for deferred entry of judgment. We agree with the latter two contentions and will reverse and remand for appropriate proceedings to determine whether appellant is suitable for deferred entry of judgment and, if not, whether the offense is a felony or misdemeanor.
A juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) filed on March 29, 2013, alleged that appellant M.G. committed the following offenses: (1) carried a concealed firearm on his person (Pen. Code, § 25400, subd. (a)(2)); (2) carried a loaded firearm on his person in a public place (Pen. Code, § 25850, subd. (a)); and (3) possessed a concealable firearm without the written permission of his parent (Pen. Code, § 29610). Also on March 29, 2013, the prosecutor made an initial determination appellant was ineligible for deferred entry of judgment.
Appellant filed a motion to suppress evidence. (Welf. & Inst. Code, § 700.1.) The motion was heard on April 23, 2013
1. Prosecution Case
At 9:08 p.m. on March 27, 2013, San Francisco Police Officer Ryan Doherty, together with Officers DeJesus and Sample, were proceeding on Howard Street, a one-way street, heading toward Seventh Street. The officers were in plainclothes and driving an unmarked patrol car. Officer Doherty was in the front passenger seat. The area was the site of a high number of robberies and “auto boosts.”
As the officers crossed Moss Street, Officer Doherty saw four individuals at the corner of Moss and Howard. It appeared three of them were surrounding the fourth, whose back appeared to be up against a building. The individuals seemed to be looking up and down the block as the officers passed through the intersection, leading Doherty to believe there might be a crime in progress. The officers thought the person surrounded could be a robbery victim. One of the other three, the only one wearing a backpack, was appellant. Appellant was standing at a 3:00 o’clock position in relation to the individual against the building, assuming the latter was at the 12:00 o’clock position.
As the officers passed the intersection, Officer DeJesus, the driver, said, “Did you see those guys?” DeJesus stopped the vehicle out of view of the four individuals so that Officer Doherty could get out of the car and approach them on foot. Officer Sample got out of the car with Doherty. To avoid a possible foot chase, Officer DeJesus backed the car to the intersection of Moss and Howard as Doherty was about to walk around the corner. He did not activate his siren or emergency lights.
Officer Doherty turned the corner to make contact with the four individuals. His primary concern was to protect the person he thought was a robbery victim. The four juveniles appeared to be surprised when he said, “Police.” Officer Doherty was wearing his badge around his neck, but was not sure he had pulled it out when he first approached. The four began to retreat toward the wall. Standing in the same location where Officer Doherty first saw him, appellant “was looking all around, ” which is a “common sign” to Officer Doherty of “someone that is looking to run away.” At some point during the initial contact, Officer DeJesus got out of the car and joined Officers Doherty and Sample.
Officer Doherty asked, “Hey, what’s going on here? You guys okay?” No one answered the question. Standing about ...