In re J.V.















Filed 4/5/13 In re J.V. CA6

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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




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In re J.V., a Person Coming Under the Juvenile Court Law.	H038386 (Santa Clara County Super. Ct. No. JV36246)
THE PEOPLE, Plaintiff and Respondent, v. J.V., Defendant and Appellant.

After the
juvenile court denied minor J.V.’s motion
to suppress evidence under Welfare and Institutions Code section 700.1, the
minor admitted that he had possessed a firearm while under the influence
(Health & Saf. Code, § 11550, subd. (e)), href="http://www.mcmillanlaw.com/">possessed a loaded firearm in a vehicle
(Pen. Code, § 25850, subd. (a)), possessed controlled substance paraphernalia
(Health & Saf. Code, § 11364.1), and possessed stolen property (Pen. Code,
§ 496, subd. (a)). The juvenile court
sustained the petitions alleging these offenses and continued the minor as a
ward of the court. The juvenile court
committed the minor to the custody of the probation officer for placement in
the Enhanced Ranch Program and set the maximum term of confinement at 14 years
and six months.

On appeal, the minor contends: (1) the juvenile court erred in denying his
motion to suppress evidence, and (2) the true finding that he violated Penal
Code section 25850, subdivision (a) is a misdemeanor and not a felony. We affirm.



I. Statement of Facts

At
approximately 9:45 p.m. on April 5, 2012, San Jose Police Officer Jeff Yates
received a dispatch call about two males who were wearing Halloween masks in
the parking garage of the Almaden Family Apartments. They were associated with a red truck. Yates drove to the garage, followed another
car past the locked gate, and drove around in the garage. However, he did not locate the individuals
with the Halloween masks. As Yates was
about to exit the garage, he saw a red truck, which was occupied by a Hispanic
male driver and a passenger, enter the facility. Yates ran the truck’s license plate and
learned that it was stolen. Yates could
not describe the driver’s appearance, and he did not get a good look at the
person in the passenger seat.

Since he had driven through the
locked gate, Yates asked another individual to open the gate into the
garage. Yates re-entered and began
searching for the red truck a few minutes after he had completed his initial
inspection of the garage. Yates drove
around the corner of the first aisle and saw the same red truck, which was
parked in a stall. A Hispanic male, who
was later identified as the minor, was standing at the driver’s door of a BMW
parked next to the red truck. The BMW
was backed into the parking stall while the truck was parked in the opposite
direction. The driver’s door of the BMW
was open “a little bit.” The minor, who
was holding car keys, shut the door, came around the BMW, and sat on the front
fender. The minor was “a car length”
from the truck.

Yates asked
the minor to walk toward him and to put his hands up. The minor then walked 15 feet from the BMW to
Yates. Yates placed the minor in
handcuffs and pat searched him for officer safety. Yates visually cleared both vehicles by looking
through the windows. He did not open the
doors to the vehicles. There were no
other officers present at this time.
Yates explained that he was “not sure if anybody was occupying [the
stolen truck] and if the suspect was still around, if he was one of those
suspects.” The lighting conditions were
adequate for Yates to conduct an investigation.

After Yates
determined that there was no one else in the area of the BMW or near the red
truck, he returned to speak to the minor.
Yates noticed that the minor’s eyes were fluttering and his pupils were
dilated. Yates asked the minor to close
his eyes. When Yates observed that the
minor’s eyelids were fluttering rapidly, he concluded that the minor was under
the influence of a stimulant. The minor
told Yates that he had used marijuana and cocaine. He also identified himself and stated that
his father was the owner of the BMW.
Yates observed the symptoms of the minor’s drug use “a minute” after he
had asked the minor to come over to him.
The key in the minor’s hand had a BMW logo on it. A records check for the minor revealed that
he had a warrant for his arrest and was on juvenile probation. Yates informed the minor that he was under
arrest after he observed objective symptoms of stimulant use and he learned of
the minor’s arrest warrant.

At that
point, Yates’s partner arrived and Yates put the minor in the back of the
patrol vehicle. Yates had not excluded
the minor from being a suspect in the theft of the truck. Yates searched the BMW and found hockey
equipment, a loaded Ruger handgun in a leather jacket, a methamphetamine pipe,
and a cell phone.

The trial
court denied the motion to suppress
evidence. The trial court
stated: “I think . . . that there is inevitability
here in terms of the unlawfulness of the items seized. Additionally I think the police officer’s
steps, under the circumstances was reasonable.
And I think that he did have a right.
I think I believe the police officer would have been nervous in that
situation and would have wanted to make sure that he had the safe ability to
conduct his investigation. I think he
had an obligation to investigate, and could have been that this, person, which
turned out to be [the minor], was completely innocent, just getting into his
dad’s car but I think he had an obligation and a right to check that out and I
think that each step from then on was lawful.”



II. Discussion

A. Motion to Suppress Evidence

The minor
contends that the juvenile court erred in denying his motion to suppress
evidence.

“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 that are supported by
substantial evidence and independently determine whether the facts support the
court’s legal conclusions.”
[Citation.]’ [Citation.]” (In re
Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)

The Fourth Amendment, made
applicable to the states through the due process clause of the href="http://www.fearnotlaw.com/">Fourteenth Amendment, protects the
individual against unreasonable searches and seizures. (Mapp
v. Ohio (1961) 367 U.S. 643, 656-660.)
When a police officer engages in conduct that violates the Fourth
Amendment, the evidence obtained through such conduct is subject to the
exclusionary rule. (People v. Mayfield (1997) 14 Cal.4th 668, 760.)

The protection of the Fourth
Amendment extends to brief investigatory stops that fall short of an
arrest. (Terry v. Ohio (1968) 392 U.S. 1, 16-17.) “A detention
is reasonable under the Fourth Amendment when the detaining officer can point
to specific articulable facts that, considered in light of the totality of the
circumstances, provide some objective manifestation that the person detained
may be involved in criminal activity.” (>People v. Souza (1994) 9 Cal.4th 224,
231.) The reasonable suspicion that
justifies a detention is “simply . . . ‘a particularized and objective basis’
for suspecting the person stopped of criminal activity.” (Ornelas
v. United States (1996) 517 U.S. 690, 696.)

Here, it is
not disputed that Yates had a reasonable suspicion that a crime had occurred,
because he had run a license plate check of the red truck and learned that it
was stolen. However, there was no
objective basis for the officer to suspect that the minor had been involved in
the theft of the truck. Yates saw the
minor a “car[’s] length” from the stolen truck and entering the BMW. Before he engaged in any conversation with
the minor, Yates ordered him to walk towards him with his hands up and
handcuffed him. Thus, under the totality
of the circumstances, there were insufficient facts to believe the minor might
be involved in criminal activity.

The
Attorney General argues that a “brief detention to discuss [the minor’s]
possible connection to the truck was constitutionally permissible.” The cases upon which she relies are
distinguishable. Unlike the present
case, People v. Lloyd (1992) 4
Cal.App.4th 724 (Lloyd),> People v. Conway (1994) 25 Cal.App.4th
385 (Conway), and >People v. McCluskey (1981) 125
Cal.App.3d 220 (McCluskey), involved
observation by law enforcement of activity that occurred very late at
night. In Lloyd, the defendant was seen standing alone next to a building
where a silent alarm had just been triggered at 4:00 a.m. (Lloyd,
at pp. 733-734.) In Conway, two minutes after the officer received a report of a
burglary in progress, he saw the defendant driving from the area at 3:00
a.m. (Conway, at p. 390.) In >McCluskey, shortly after a robbery
occurred, the officer observed the defendant, who matched the description of
the suspect, driving from the area at about 1:00 a.m. (McCluskey,
at pp. 226-227.) Here, the minor was
observed exiting the BMW at 9:45 p.m.
(See People v. Perrusquia
(2007) 150 Cal.App.4th 228, 234 [11:26 p.m. was not sufficiently late enough to
constitute a factor that would support a detention].)

People
v. Juarez (1973) 35 Cal.App.3d 631 (Juarez)
and People v. Peralez (1971) 14
Cal.App.3d 368, 378 (Peralez) also do
not assist the Attorney General. >Juarez held that the defendant’s
“[p]resence in the general area of a recent burglary accompanied by an
explanation of doubtful veracity constitutes cause to name="SDU_636">suspect
the person’s connection with the crime sufficient to justify his detention for
further investigation.
[Citations.]” (>Juarez, at pp. 635-636.) In Peralez,
the officer asked the defendant why he was in the area after he was seen
leaving from a house where a prowler had been reported at 11:30 p.m., and
the defendant stated that he was seeking employment as a landscaper. (Peralez,
at pp. 372-372.) Peralez held the detention was permissible. (Peralez,
at pp. 376-377.) In contrast to >Juarez and Peralez, here, the minor did not display any evasiveness in his
conduct and had no opportunity to explain his presence in the area before he
was handcuffed.

Though the
detention of the minor was not constitutionally permissible, we conclude that
the connection between the antecedent illegality and the discovery of the
evidence was attenuated.

“We need
not hold that all evidence name="citeas((Cite_as:_371_U.S._471,_*488,_83_">is ‘fruit of the poisonous
tree’ simply because it would not have come to light but for the illegal
actions of the police. Rather, the more
apt question in such a case is ‘whether, granting establishment of the primary
illegality, the evidence to which instant objection is made has been come at by
exploitation of that illegality or instead by means sufficiently
distinguishable to be purged of the primary taint.’ [Citation.]”
(Wong Sun v. United States
(1963) 371 U.S. 471, 487-488.)
“[B]ut-for cause, or ‘causation in the logical sense alone,’ [citation],
can be too attenuated to justify exclusion . . . .” (Hudson
v. Michigan (2006) 547 U.S. 586, 592.)


In >People v. Brendlin (2008) 45 Cal.4th 262
(Brendlin), the officer searched the
passenger of an illegally detained vehicle after he discovered a warrant for
his arrest. (Id. at p. 268.) In answering
the question “ ‘whether the chain of
causation proceeding from the unlawful conduct ha[d] become so attenuated or
ha[d] been interrupted by some intervening circumstance so as to remove the
“taint” imposed upon that evidence by the original illegality,’ ” Brendlin
considered the three factors set forth in Brown
v. Illinois (1975) 422 U.S. 590. (>Id. at 269.) These factors are: “ ‘the
temporal proximity of the Fourth Amendment violation to the procurement of the
challenged evidence, the presence of intervening circumstances, and the
flagrancy of the official misconduct.’
[Citations.]” (>Ibid.)


Brendlin
applied these factors and held that the illegal
detention was attenuated. >Brendlin noted that there were “only a
few minutes” between the unlawful traffic stop and the search incident to the
arrest, but this factor was outweighed by the other factors. (Brendlin,
supra, 45 Cal.4th at p. 270.) Brendlin
next reasoned that the existence of an outstanding warrant “is an intervening
circumstance that tends to dissipate the taint caused by an illegal traffic
stop. A warrant is not reasonably
subject to interpretation or abuse [citations], and the no-bail warrant here
supplied legal authorization to arrest defendant that was completely
independent of the circumstances that led the officer to initiate the traffic
stop. [Citation.]” (Id.
at p. 271.) Brendlin also stated that there was no evidence that the officer
acted in bad faith or conducted the traffic stop “ ‘in the hope that something [else] might turn up.’ [Citations.]”
(Ibid.) Thus, Brendlin
concluded that the evidence “found on defendant’s person and in the car was not
the fruit of the unlawful seizure.” (>Id. at p. 272)

Similarly, here, the time between
the illegal detention and the search of the BMW was only a couple of minutes,
which was outweighed by the other two factors. As in Brendlin,
the officer searched the BMW only after learning of the arrest warrant for the
minor and his status as a probationer, which tended “to dissipate the taint” of
the illegal detention. (>Brendlin, supra, 45 Cal.4th at p. 271.)
Moreover, there was no evidence that Yates engaged in flagrant
misconduct. Though there was
insufficient evidence to justify a detention, the record suggests that the
officer was acting in good faith in pursuing the investigation of the stolen
truck. There is also no evidence that he
detained the minor in order to search his vehicle for possible contraband.

The minor argues, however, that >Brendlin is inapposite because Yates
searched the BMW and discovered the evidence that he sought to suppress before
he learned of the warrant and the search condition. We disagree.

Drawing all inferences in favor of
the trial court’s ruling, we conclude that the record does not support the
minor’s position. On direct examination,
Yates testified that there were “two different situations going on, . . . what
is going on with this vehicle, and then the other vehicle and the minor that
had the warrant for his arrest. So I put
him in the back of the patrol vehicle and um, we had to search the vehicle and
see if there was any evidence and then I needed to come back and eventually
speak with the minor.” He further
testified that he searched the BMW because the minor was on probation, had
objective symptoms of drug use, and had admitted drug use. He also informed the minor that he was under
arrest when he found out that the minor had a warrant, which was before he
searched the BMW. This testimony
establishes that the officer did not search the BMW prior to learning that the
minor was on juvenile probation and there was a warrant for his arrest.

On cross-examination, Yates
testified that he learned that there was an arrest warrant for the minor after
he “cleared the car” but before he searched it.
The following exchange then occurred:
“Q . . . [W]hen you say ‘search’ you mean like make a physical
search? [¶] A
Because there -- we physically search make sure nobody hiding or
anything. Like, I know, detailed search
if there is any evidence left behind. If
you would clarify? [¶] Q When
the first search that you referred to the less detailed of the two? [¶]
A Yes. [¶] Q That still involved opening the car and
looking inside; right? [¶] A Yes. [¶]
Q And it was at that time that
you observed some of the things that you detailed in your report; is that
right? [¶] A Yes
-- can you be more specific? [¶] Q For
instance the hockey equipment in the front seat. And hockey equipment is really large? [¶]
A Yes. [¶] Q So when you opened that car you initially
search, you saw that hockey equipment?
[¶] A Yes. I
saw through the window prior to opening it.”
This testimony appeared to contradict the officer’s earlier
testimony. The prosecutor then asked on
redirect examination whether the officer opened the door of the BMW when he
“visually cleared” it. Yates responded
that he did not and that he “just looked through the windows” to “ma[k]e sure
that nobody was in there.” Based on this
record, there was substantial evidence to support the juvenile court’s implied
finding that Yates did not search the BMW until after he had learned that there
was an arrest warrant for the minor and he was on juvenile probation.



>B.
Penal Code Section 25850

The minor next contends that none
of the circumstances that would have elevated the true finding that he violated
Penal Code section 25850, subdivision (a) to a felony were pleaded and proven
by the prosecutor. Thus, he contends
that the finding constitutes a misdemeanor, and not a felony, and the judgment
must be amended.

In the present case, count 2 of the
petition alleged that “the crime of CARRYING A LOADED FIREARM ON THE PERSON OR
IN A VEHICLE - DEFENDANT NOT IN LAWFUL
POSSESSION OF THE FIREARM, in violation of PENAL CODE SECTION 25850(a), >a Felony, was committed by J[.] V[.] who
did, while not in lawful possession of the firearm, carry a loaded firearm,
a(n) 9 mm handgun, on his/her person and in a vehicle while in a public place
and on a public street in an incorporated city and in a public place and on a
public street in a prohibited area of unincorporated territory.” (Italics added.)

Penal Code section 25850,
subdivision (a) provides: “A person is
guilty of carrying a loaded firearm when the person carries a loaded firearm on
the person or in a vehicle while in any public place or on any public street in
an incorporated city or in any public place or on any public street in a
prohibited area of unincorporated territory.”
Subdivision (c) of this section outlines the punishment and provides in
relevant part: “Carrying a loaded
firearm in violation of this section is punishable, as follows: [¶]name=I74641E9B620211E09DB58753B8692EFF> . . . name=I74713DF0620211E09DB58753B8692EFF>name=I746445A2620211E09DB58753B8692EFF>[¶] (4) Where the person is not in lawful
possession of the firearm, or is within a class of persons prohibited from
possessing or acquiring a firearm pursuant to Chapter 2 (commencing with
Section 29800) or Chapter 3 (commencing with Section 29900) of Division 9 of
this title, or Section 8100 or 8103 of the Welfare and Institutions Code, as a
felony.”

Here, count 2 of the petition
alleged a violation of Penal Code section 25850, subdivision (a) as a felony
and included the language of subdivision (c)(4), that the minor was “not in
lawful possession of the firearm.” Thus,
the minor was provided with sufficient notice that he was being charged with a
felony as outlined in subdivision (c)(4) of Penal Code section 25850. The minor could not lawfully possess a
firearm because he was a minor (Pen. Code, § 29610), a ward of the court, and
previously found to have committed a robbery, which is an offense under Welfare
and Institutions Code section 707, subdivision (b) prohibiting the possession
of a firearm. Prior to admitting the
allegations in the petition, the minor also signed a waiver form that stated
the maximum custody time for the offense was three years, which is consistent
with the custody time required if the offense constituted a felony. Accordingly, the juvenile court correctly
found that the conduct constituted a felony.



III. Disposition

The order
is affirmed.











_______________________________

Mihara,
J.







WE CONCUR:













______________________________

Elia, Acting
P. J.













______________________________

Márquez,
J.