California Court of Appeals, First District, Fifth Division
In re D.D., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, D.D., Defendant and Appellant.
[CERTIFIED FOR PARTIAL PUBLICATION [*]]
Superior Court of San Francisco City and County No. JW13-6403, Susan M. Breall, Judge, and Superior Court of Alameda County, No. SJ11017913, Armando G. Cuellar, Jr.
Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Assistant Attorney General, Ronald E. Niver and Christina vom Saal, Deputy Attorneys General, for Plaintiff and Respondent.
Police officers detained and searched D.D. and a companion after observing them apparently smoking marijuana in a private parking area. D.D. was found to be in possession of a concealed loaded handgun and charged by petition with violation of Penal Code sections 25400, subdivision (a)(2), and 25850, subdivision (a). D.D.’s motion to suppress the evidence was denied, and the petition’s allegations were found true. The juvenile court also found the offenses to be mandatory felonies pursuant to subdivision (c)(4) of sections 25400 and 25850. In the published portion of this opinion we conclude that D.D.’s offenses were not automatically felonies by virtue of his status as a minor, and therefore we reverse and remand for the juvenile court to determine the applicable subdivisions of sections 25400 and 25850 and designate the offenses as either misdemeanors or felonies accordingly. In the nonpublished portion of the opinion, we affirm the denial of D.D.’s motion to suppress and strike the designation of a maximum term of confinement from the disposition order.
On November 5, 2013, the San Francisco District Attorney filed a Welfare and Institutions Code section 602, subdivision (a) juvenile wardship petition on behalf of D.D., alleging he violated sections 25850, subdivision (a) (carrying a loaded firearm in public) and 25400, subdivision (a)(2) (carrying a concealed firearm). Both offenses were identified as felonies on the petition. D.D.’s motion to suppress evidence was heard in conjunction with the jurisdictional hearing (Hon. Susan M. Breall), and the following evidence was adduced.
On November 1, 2013, San Francisco Police Officer Duncan Duffin and his partner, Francisco Chicas, were working as a robbery abatement team. A series of armed and unarmed robberies had been committed within two blocks of the Glen Park and Balboa Park BART stations, mostly by young males (teenaged or in their early 20’s) who were wearing loose-fitting dark-colored hooded sweatshirts or pullovers and pants. About 4:00 p.m., the uniformed officers were patrolling the area around the Balboa Park station in an unmarked vehicle. They saw two teenaged males wearing hooded sweatshirts and blue jeans standing in front of a parked Pontiac Grand Prix in a San Francisco Municipal Railway (Muni) employee parking lot near a Muni maintenance yard. The lot had signs indicating it was for Muni employees only and prohibiting trespassing.
The officers pulled over, and Duffin noticed smoke in the vicinity of the young men (D.D. & K.H.). He also saw D.D. look directly at the officers and
then turn and enter the front passenger’s side of the Grand Prix. As the officers exited their car and approached the young men, Duffin smelled a strong odor of marijuana. He asked K.H., “Who has got the weed?” K.H. admitted having marijuana.
Duffin motioned with his hand for D.D. to exit the Grand Prix. When D.D. got out, Duffin asked for his name and identification. D.D. provided a false name and said he did not have identification. Dispatch had no record for the name given by D.D. D.D. was advised that Duffin and Chicas were investigating a series of robberies in the area. D.D. denied having any weapons on his person and did not tell Duffin who owned the Grand Prix. When asked why he was on Muni property, D.D. answered hesitantly and avoided the question. D.D. appeared apprehensive and nervous, and he kept looking left and right up and down the street without making eye contact with Duffin. As D.D. moved around, he kept repositioning his right hip away from Duffin: D.D. stood in a bladed stance, with one foot forward and one foot in the back at about a 45 degree angle and, as Duffin moved, he would pivot so his right hip was always pointed away from the officer. Duffin testified that, based on his experience and training, he believed D.D. was carrying a weapon on his right hip.
Duffin decided to search D.D. for weapons out of concern for the officers’ safety. D.D. placed his hands on the back of his head, and Duffin used his left hand to secure D.D.’s hands. Using his right hand, Duffin lifted the right side of D.D.’s sweatshirt and saw a semiautomatic black handgun on D.D.’s right hip, tucked into his waistband. Duffin removed the gun, placed it on the ground, and arrested D.D. Chicas examined the gun, a semiautomatic nine-millimeter Glock pistol, and determined that it was loaded with a live round in the chamber. It was stipulated that D.D. was 15 years old at the time of the incident.
Judge Breall expressly found Duffin credible, denied D.D.’s motion to suppress, and found the petition’s allegations true. The court then found that the crimes were mandatory felonies pursuant to subdivision (c)(4) of sections 25400 and 25850. The case was transferred to the Alameda County Superior Court for disposition, where Judge Armando G. Cuellar, Jr., placed D.D. on probation and released him live ...