Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. JJ14999, Donna Groman, Judge.
Mary Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillete, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
INTRODUCTION
The juvenile court sustained a petition for robbery against defendant and appellant Brandon N. On appeal, Brandon N. contends that the court erred in denying his suppression motion and in denying him a jury trial. We disagree with both contentions, and therefore we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual background.
On March 28, 2007, Samuel Andrade was listening to music on his MP3 player as he waited for the bus. Brandon N. approached him. Brandon N. put Andrade against a wall and gave him five seconds to empty his pockets. After counting to five, Brandon N. hit Andrade. Four or five people also approached Andrade and began hitting him. Andrade’s attackers left, taking his MP3 headphones with them. Andrade watched them go into an apartment building.
About two to ten minutes later, Andrade and Delmy Carpenter, who had witnessed the attack, flagged down Officer Miguel Dominguez. They pointed out the apartment building into which the group had gone. Officer Dominguez searched for possible suspects matching the assailants’ description in the building. The officer went to apartment No. 204, where Brandon N. lives with Michael Williams, and he recovered headphones. Andrade identified the headphones, which were gray on the top, as his.
II. Procedural background.
A petition under Welfare and Institutions Code section 602 was filed on April 2, 2007 alleging one count of second degree robbery (Pen. Code, § 211). On April 25, the juvenile court sustained the petition and found that Brandon N. is a minor described by Welfare and Institutions Code section 602. The court placed Brandon N. home on probation and ordered him to complete 10 days of a juvenile alternative work services program. The court set the maximum term of confinement at five years.
DISCUSSION
I. The motion to suppress.
After Brandon N.’s adjudication hearing began, his trial counsel moved to suppress “[o]fficers’ impressions and observations of defendant,” defendant’s statements, and the headphones. The juvenile court denied the motion. Brandon N. contends that the court erred because it did not allow his trial counsel to make a record. He argues, therefore, this matter should be remanded for hearing on his suppression motion. We disagree.
A. Additional facts.
Trial counsel for Brandon N. was appointed on April 3, 2007. The adjudication hearing began on April 24. On the second day of the hearing, April 25, Brandon N.’s counsel filed a motion to suppress evidence under Welfare and Institutions Code section 700.1. Counsel said he had discovered information giving rise to the motion “yesterday afternoon.” He therefore asked that the motion be heard “because of my late discovery of that fact regarding the lack of consent for the search when my client’s brother showed up in court yesterday afternoon informing there was an issue to the consent, and I filed that motion this morning after receiving that information. Because all the officers are here, it would not cause additional delay or prejudice to the people.” This discussion followed:
“The court: Mr. Fleming-Peters, [defense counsel], you’ve had access to your client’s brother since this case began; isn’t that correct?
“[Defense counsel]: No.
“The court: Why is that not correct . . . ?
“[Defense counsel]: It was a matter getting a hold of them and hav[ing] him come in to speak to him.
“The court: It took you how many months to do that . . . ?
“[Defense counsel]: Took me 14 days when the minors were arraigned. They were detained. They were just released on CDP last Thursday. So since they have been out, naturally the family has been cooperative.
“The court: You could not talk to your client while he was in juvenile hall and ascertained this information?
“[Defense counsel]: The minor was not the source of information, the brother was.
“The court: So you could not talk to the brother before today’s date so you could file this motion?
“[Defense counsel]: I talked to him yesterday afternoon when he came to court.
“The court: All right. So before yesterday, you could not have spoken to him about this issue. You knew that the consent issue related to the brother, yet you didn’t talk to him until yesterday afternoon?
“[Defense counsel]: I wasn’t
“The court: Let’s put it this way, [defense counsel], it is untimely and it is denied.”
The adjudication hearing then continued. At the close of the People’s case-in-chief, defense counsel said, with respect to the suppression motion, he wanted to add facts for the record: “One was that the minor’s brother is still in the hospital for having brain surgery. The other brother who was there, is here. I think it would be --” The court interjected, “[Defense counsel], I already denied that motion. Please do not speak to me any longer.”
B. The juvenile court did not err in denying the motion to suppress evidence.
Welfare and Institution Code section 700.1 provides that a motion to suppress evidence shall be heard five judicial days before jeopardy attaches, but “[i]f, prior to the attachment of jeopardy, opportunity for this motion did not exist or the person alleged to come within the provisions of the juvenile court law was not aware of the grounds for the motion, that person shall have the right to make this motion during the course of the proceeding under Section 701.” (Welf. & Inst. Code, § 700.1; see also Cal. Rules of Court, rule 5.544(1) [a motion to suppress evidence obtained as a result of an unlawful search and seizure must be served and filed at least five judicial days before the date the jurisdiction hearing is set to begin].) Here, Brandon N.’s counsel did not file the suppression motion until after jeopardy had attached. Therefore, only if “opportunity for [the] motion did not exist” or Brandon N. was unaware of the grounds for the motion will we find that a remand is necessary.
Courts of appeal have considered this issue in an analogous context under Penal Code section 1538.5, which is the counterpart for adults to Welfare and Institutions Code section 700.1. (In re Ricardo C. (1995) 37 Cal.App.4th 431, 435.) In People v. Burke (1974) 38 Cal.App.3d 708, 713, the defendant moved to suppress evidence after the jury was selected and just before opening argument. He explained he had no opportunity to make the motion earlier because of a delay in discovering the relevant facts. The trial court rejected the explanation, noting that defense counsel had been representing defendant for two months. (Ibid.) The Court of Appeal affirmed.
Penal Code section 1538.5, subdivision (h), provides, “If, prior to the trial of a felony or misdemeanor, opportunity for this motion did not exist or the defendant was not aware of the grounds for the motion, the defendant shall have the right to make this motion during the course of trial.”
A similar explanation was offered in People v. Martinez (1975) 14 Cal.3d 533. Defense counsel said he had not made a suppression motion before trial because he was unaware of the grounds for suppression until the officer who conducted the search testified mid-trial. (Id. at p. 537.) The court found that counsel should have been aware of the grounds for a suppression motion because he was not limited to testimony provided at the preliminary hearing. Counsel could have learned the grounds for the motion by interviewing his client. “The Martinez court thus recognized a ‘due diligence’ requirement for a belated motion to suppress under Penal Code section 1538.5, subdivision (h).” (People v. Frazier (2005) 128 Cal.App.4th 807, 828.)
Like the Burke and Martinez courts, we similarly conclude that the juvenile court did not err in denying Brandon N.’s suppression motion as untimely. Brandon N. complains that the juvenile court cut off his trial counsel and failed to allow him to make his record. But before the court cut off trial counsel the court directly questioned counsel and gave him the opportunity to explain why the motion had not been brought sooner. Counsel said that Brandon N.’s brother provided the information on the first day of the adjudication hearing. The court then expressly asked why counsel “could not talk to the brother before today’s date so you could file this motion?” Although directly given this opportunity to explain why he could not have talked to Brandon N.’s brother sooner, counsel ambiguously responded, “I talked to him yesterday afternoon when he came to court.” From this response, the court concluded, reasonably, that the opportunity existed to speak with Brandon N.’s brother and to discover the relevant information before the adjudication hearing.
Given that counsel had an opportunity to speak with Brandon N.’s brother, the juvenile court also did not err in concluding that counsel failed to establish he was “unaware” of the facts giving rise to the suppression motion. To the extent that the “due diligence” requirement under Penal Code section 1538.5, subdivision (h), applies to Welfare and Institutions Code section 700.1, the record shows that counsel discovered the facts on April 24 because that was when Brandon N.’s brother appeared in court and counsel spoke to him. The record does not show counsel could not have spoken to him sooner, and counsel did not make such a representation, although given an opportunity to do so by the court.
Brandon N. counters that the juvenile court did not give him that opportunity. The court heard argument on the motion and denied it. Thereafter, when counsel said he wanted to add a few facts for the record, the court cut him off. While we do not necessarily condone a court’s refusal to permit a counsel to make a further record, counsel nevertheless had already been given the opportunity to make a record. We therefore conclude that the court did not err in denying the motion to suppress evidence as untimely.
II. Brandon N.’s right to a jury trial.
At the time of these events, Brandon N. was 17 years old. Before the adjudication hearing began, his counsel moved for a jury trial. The juvenile court denied the motion. Brandon N. contends he had a right to a jury trial because it is possible, in the future, his juvenile adjudication for robbery may be used as a strike offense. (See generally, Pen. Code, §§ 211, 667, subds. (b)-(i), 667.5, subd. (c)(9), 1170.12 & 1192.7.) Brandon N. certainly might face such situation in the future. But the only question properly before us is whether he was entitled to a jury trial. There is no dispute that the state is not constitutionally compelled to provide a jury in juvenile proceedings. (In re Mitchell P. (1978) 22 Cal.3d 946, 951; see also McKeiver v. Pennsylvania (1971) 403 U.S. 528.)
Whether this juvenile adjudication may constitutionally be used in the future to enhance any sentence to which Brandon N. might be subject is simply not before us. We nevertheless note that whether juvenile adjudications may be constitutionally used as strikes under the Three Strikes law is pending review in the California Supreme Court. (People v. Nguyen (2007) 152 Cal.App.4th 1205 [joining the “small but growing number of courts across the country that have likewise concluded that Apprendi and its progeny compel us to recognize that the Sixth Amendment right to a jury trial is an integral part of the process that is due before a prior conviction may be used to increase the maximum sentence for a criminal offense”], review granted Oct. 10, 2007, S154847; People v. Tu (2007) 154 Cal.App.4th 735 [reflecting prevailing view that a juvenile adjudication may constitutionally constitute a strike offense], review granted Dec. 12, 2007, S156995; People v. Grayson (2007) 155 Cal.App.4th 1059, review granted Dec. 19, 2007, S157952.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.