In re Rudy A.

Filed 1/14/09 In re Rudy A. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Rudy A., a minor, appeals a judgment in which he was declared a ward of the court pursuant to Welfare and Institutions Code section 602 for carrying a loaded firearm on his person in violation of Penal Code section 12031, subdivision (a)(1). The minor admitted the allegation after the court denied his motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1.

Statement of the Facts and Case

On August 30, 2007, Salinas Police Officer White saw a silver Mercedes Benz C230 roll through a stop sign at the intersection of West Alvin and Cherokee without stopping. Officer White stopped the car, and inside were a driver and two passengers, including the minor, who was sitting in the right front passenger seat.

The driver of the Mercedes gave the officer his drivers license, and when asked if he was on probation or parole, the driver told the officer he was on parole for street terrorism. Officer White planned to do a parole search of the car, and called for additional officers for backup.

Before conducting a search of the car, all three occupants were removed. An officer patsearched the driver, and found nothing. The backseat passenger was also patsearched, and nothing was found. The minor was patsearched, and the officer removed a Glock 19 from his right from pants pocket.

On September 4, 2007, a petition was filed in Monterey County Juvenile Court alleging that the minor came within the provisions of Welfare and Institutions Code section 602, in that he concealed a firearm within a vehicle (Pen. Code, 12025, subd, (a)(3) - count 1), and carried a loaded firearm on his person (Pen. Code, 12031, subd. (a)(1) - count 2).

The minor brought an oral motion to suppress evidence pursuant to Welfare and Institutions code section 700.1. Following a hearing, the court denied the motion, and the minor admitted count two of the petition.

The minor was declared a ward of the court for two years, and was placed on probation with terms and conditions. The minor filed a notice of appeal following this courts grant of a motion for relief from default.

Discussion

On appeal, the minor asserts the trial court erred in denying his motion to suppress evidence obtained during the patsearch, and that the court failed to determine whether his offense of possessing a loaded firearm was a misdemeanor or a felony.

Motion to Suppress Evidence

The minor made a motion to suppress in the trial court, during which he argued the officer did not have a reasonable suspicion that he was armed and dangerous to justify the patsearch that resulted in the discovery of the loaded gun in his pants pocket. At the hearing on the motion, Officer White testified that he decided to search the minor in addition to the driver, Lopez, who was on parole, because the Salinas Police Department sent [him] confidential information that they had documented information that Mr. Lopez was believed to be in possession of a firearm or knife. Officer White further testified that the search of the minor was necessary because Lopez could have passed the weapon to him or the other passenger. In addition, Officer White testified over the minors hearsay objection that Officer Rocha told him that she reached into the minors pocket and took the gun because she could see it sticking out in plain view.

In denying the motion, the court ruled: [t]he officer gave very articulable reasons for the stop, articulable reasons for the detention, for the ordering out of the passengers, and why he could do that search. And it is not at all unreasonable that he, based on his training and experience, and what he testified to, to believe that that weapon that they might have had was handed off to somebody else. And that is why, because of the articulable reasons that he stated, theres no doubt in my mind this is a very reasonable search.

On appeal, the minor asserts the trial court erred in finding Officer White had a reasonable suspicion to justify the pat-search in this case.

An appellate courts review of a trial courts 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] courts resolution of each of these inquiries is, of course, subject to appellate review. [Citations.] [] The courts 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. [Citation.] (People v. Ayala (2000) 23 Cal.4th 225, 255.)

The rules for determining the legality of a patsearch are well settled. When an officer has a reasonable belief that the individual whose suspicious behavior he is investigating at close range is armed and presently dangerous to the officer or to others, the officer has the power to take necessary measures to determine whether the person is in fact carrying a weapon and to neutralize the threat of physical harm. (Terry v. Ohio (1968) 392 U.S. 1, 24.) The sole justification of the search . . . is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer. (Id. at p. 29.) The officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. (Id. at p. 27.) The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that his [or her] safety or that of others was in danger. (Ibid.)

[S]ince minor traffic offenses do not reasonably suggest the presence of weapons, an officer may not search the driver or those areas of a car where a weapon may be hidden and accessible unless the objective circumstances furnish reasonable grounds to believe the driver is armed and/or dangerous and may gain immediate control of a weapon. [Citations.] (People v. Miranda (1993) 17 Cal.App.4th 917, 927; see also Ruvalcaba v. City of Los Angeles (9th Cir. 1995) 64 F.3d 1323, 1327 [no additional intrusion into the passengers liberty, such as a frisk or prolonged detention, may be justified by the traffic stop absent some additional suspicion].)

The judiciary should not lightly second-guess a police officers decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations. [Citations.] (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)

From this record, we find specific and articulable facts together with rational inferences from those facts that reasonably support a suspicion that the minor was armed and dangerous. Here, the driver of the car, Lopez was on parole and was properly subject to search. In addition to knowing that Lopez was on parole and subject to search, Officer White had additional specific information that Lopez was armed with either a firearm or a knife. Under those circumstances, and the fact that the minor was sitting in the right front passenger seat in close proximity to Lopez, Officer White believed it was likely the minor was armed, because Lopez might have passed off the weapon to the minor when the car was stopped. Additionally, Officer White testified that parolees such as Lopez often pass weapons or contraband off to a minor if present because, if theyre caught, typically the minor will not receive as stiff a punishment, therefore[,] the minor will be in possession of the drugs or weapons.

We find the patsearch of the minor was legal, and was based on Officer Whites reasonable suspicion he was armed with a weapon.

Determination of Minors Offense as a Felony or a Misdemeanor

The minor contends that the court erred in failing to declare the possession of a loaded firearm offense as either a felony or a misdemeanor.

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. For this reason, it cannot be deemed merely directory. (Id. at p. 1207.) Furthermore, the juvenile courts imposition of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. 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.)

Here, the petition and the court minutes refer to the allegation as a felony. Further, when the court took the minors admission to the allegation, it referred to the offense as a felony. The Attorney General asserts this is evidence the court substantially complied with section 702. However, substantial compliance with the statute is not sufficient. The law is clear that the record as a whole must demonstrate the court was aware of its discretion to treat the offense as a misdemeanor. Here, the courts recitation of the petitions language that the offense was a felony was not sufficient to demonstrate that it was aware of its discretion to treat the offense as either a misdemeanor or a felony. Absent in indication that court was aware of its discretion, remand is the appropriate remedy.

Disposition

The case is remanded for the juvenile court to declare the allegation of possession of a loaded firearm as either a felony or a misdemeanor, as required by Welfare and Institutions Code, section 702.

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RUSHING, P.J.

WE CONCUR:

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PREMO, J.

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ELIA, J.

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