Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Stanislaus County No. 511717 Linda A. McFadden, Judge, and Nancy B. Williamsen, Commissioner.
Candice L. Christensen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
M.G., a juvenile, appeals from a sustained juvenile wardship petition. He contends that the denial of his motion to suppress evidence should be reversed because (1) the juvenile court allowed the People to present evidence without live testimony during the suppression hearing, and (2) the evidence against him was the fruit of an illegal probation search. He also contends the juvenile court erred by failing to address whether he was suitable for deferred entry of judgment (DEJ) and whether certain wobbler offenses were felonies or misdemeanors. We disagree with M.G. and affirm the denial of the suppression motion. We agree, however, with his contentions concerning the determination of his eligibility for DEJ and whether certain wobbler offenses were felonies or misdemeanors and remand the matter to the juvenile court.
FACTUAL AND PROCEDURAL SUMMARY
On July 29, 2009, at approximately 1:00 p.m., Stanislaus County Probation Officers Oscar Alvarez and Raul Dominguez witnessed R.R. driving a white truck into the parking lot of a convenience store in Modesto. The probation officers recognized R.R. as a probationer who had an active warrant for his arrest. There were two passengers in the truck; they remained in the vehicle while R.R. entered the store. The probation officers detained R.R. as he exited the store.
Upon making the arrest, the probation officers searched R.R. As they did, the other two passengers exited the truck and approached them. The passengers were subsequently searched for officer safety reasons.
Alvarez then conducted a probation search of the truck, which took about 15 minutes. In the bed of the truck, Alvarez located a pink and black backpack. Inside the backpack he discovered a.38-caliber revolver with four live rounds in the cylinder. Once the handgun was discovered, all the juveniles were handcuffed.
Stanislaus County Sheriff’s Detectives Joe Knittel and Robert Beuttler responded to the scene. After giving M.G. his Miranda advisements, Knittel took M.G.’s statement. Initially, M.G. denied that the backpack belonged to him. After learning that the other passenger would be charged with the backpack, M.G. indicated that he “would take the crystal.” Knittel searched the backpack and found five baggies of methamphetamine, weighing 0.23 grams, in a small pocket. Knittel asked M.G. why he would take responsibility for the “crystal” when the backpack was not his. In response, M.G. stated that he had lied. He also admitted that he had handled the gun and was aware that there were three or four bullets in the cylinder.
Miranda v. Arizona (1966) 384 U.S. 436.
On July 31, 2009, the Stanislaus County District Attorney filed a juvenile wardship petition alleging that M.G. came within the provisions of Welfare and Institutions Code section 602, subdivision (a), in that he possessed (1) a concealed firearm (Pen. Code, § 12101, subd. (a), count 1); (2) live ammunition (Pen. Code, § 12101, subd. (b), count 2); and (3) methamphetamine (Health & Saf. Code, § 11377, subd. (a), count 3). On the same date, the prosecution filed notice that M.G. was eligible for DEJ on Judicial Council of California form JV-750, revised January 1, 2006. The prosecution, however, did not attach the Judicial Council of California form JV-751, revised July 1, 2010, giving M.G. written notification and a full description of the procedures for DEJ as required by section 791, subdivision (a).
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
On August 3, 2009, M.G. was arraigned on the petition and he denied the allegations.
On August 24, 2009, M.G. filed a written motion to suppress evidence pursuant to section 700.1. The People filed an opposition on September 2, 2009.
On September 3, 2009, the juvenile court denied M.G.’s suppression motion. A contested jurisdictional hearing followed, which concluded with the juvenile court sustaining the petition as to all three allegations.
At the dispositional hearing on September 21, 2009, the juvenile court declared M.G. to be a ward of the court and ordered he serve 75 days in juvenile hall, with credit of 55 days for time served, with the balance of time to be served on the electronic home monitoring system. M.G. also was placed on probation and ordered to comply with numerous probation terms and conditions.
DISCUSSION
I. Suppression Motion
Section 700.1 provides:
“Any motion to suppress as evidence any tangible or intangible thing obtained as a result of an unlawful search or seizure shall be heard prior to the attachment of jeopardy and shall be heard at least five judicial days after receipt of notice by the people unless the people are willing to waive a portion of this time. [¶] If, 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.”
Here, M.G. moved to suppress the evidence found in the backpack under section 700.1. The hearing on the suppression motion was heard right before the jurisdictional hearing. On appeal, M.G. contends that the denial of his suppression motion should be reversed on both procedural and substantive grounds. We disagree.
Live testimony
M.G. first contends that the juvenile court erred in permitting the People to defend the legality of the probation search of the backpack without presenting live testimony. In support, he cites People v. Johnson (2006) 38 Cal.4th 717 (Johnson). We conclude that any error was harmless.
In Johnson, the California Supreme Court held that, for the purposes of a suppression motion under Penal Code section 1538.5, the People must meet their burden of proof that a search was legal by presenting live testimony instead of just affidavits. (Johnson, supra, 38 Cal.4th at p. 720.) The court imposed the requirement for live testimony based upon the statutory language of Penal Code section 1538.5, which contains numerous references to examination of witnesses. (E.g., id., subd. (c)(2) [“While a witness is under examination during a hearing pursuant to a search or seizure motion.…”].) However, section 700.1 does not contain any language about examination of witnesses. Moreover, we have discovered no case that has held that Johnson is applicable to section 700.1 suppression hearings. In any event, any error was harmless because defense counsel forfeited this claim or, by his conduct, stipulated to the facts in this case, which obviated the need for witness testimony.
In People v. Williams (1999) 20 Cal.4th 119, the California Supreme Court held that “if defendants detect a critical gap in the prosecution’s proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal.” (Id. at p. 130.) The court also saw nothing wrong with an expedited procedure where the defendant skipped the step of first asserting a warrantless search, then waiting for the prosecution to justify the search and only then challenging the justifications. The court further stated that “[i]f defendants can anticipate the justifications the prosecution will offer, and the primary basis for the motion to suppress is the inadequacy of those justifications, then they should state those inadequacies in their initial moving papers and expedite resolution of the issue. [Citation.]” (Id. at p. 136.) Williams is applicable to this case.
Here, in response to the juvenile court’s question on whether anything besides the briefing would be presented on the section 700.1 suppression motion, defense counsel stated: “I assume that we’re going to have the testimony and argument motion subsequent to that.” Subsequently, the following colloquy occurred:
“[DEFENSE COUNSEL]: Well, then, your Honor. I’m pretty sure there has to be some evidence presented. And I think once I contested it, it’s the People’s burden to uphold the validity of the search.
“THE COURT: And you don’t think they’ve done that in their opposition papers. This is also a legal issue as opposed to a factual issue, is it not?”
In response, defense counsel then went into an argument on a legal issue arguing that what the People presented in their motion “is simply irrelevant. There still has to be a reasonable suspicion that the item that’s searched belongs to the person that’s on probation, if this is a probation search.” After subsequent legal arguments by the People and defense counsel, the parties submitted the matter. No evidence was presented either by affidavit or by live testimony, and at no point did defense counsel raise any objections to the lack of evidence being presented at the hearing. Subsequently, the jurisdictional hearing took place, during which various probation officers and detectives testified about the probation search. Defense counsel did not renew his suppression motion.
Based upon this record, we conclude that defense counsel either forfeited the claim that the People did not present live testimony to meet their burden of proof that the probation search was valid or stipulated by his conduct to the material facts in this case, which obviated the need for live testimony. Although defense counsel initially stated that he thought testimony would be presented, he did not object on the basis of lack of evidence when the juvenile court asked him whether the People had met their burden of proof through their opposition papers. Instead, he argued the probation search of the driver did not cover the search of the backpack. Thus, the primary basis for the suppression motion was the inadequacies of the justifications for the search of the backpack and there was no dispute about the material facts. Moreover, no factual evidence was presented during the hearing and defense counsel did not object. Finally, after live testimony was presented at the dispositional hearing, defense counsel did not renew his suppression motion. (E.g., § 700.1 [“If, prior to the attachment of jeopardy … 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”].) Thus, on this record, there was no dispute about the material facts related to the probation search. Hence, there was no need for live testimony.
Probation search of backpack
M.G. also contends that the probation search of the backpack was illegal, citing this court’s decision in People v. Baker (2008) 164 Cal.App.4th 1152 (Baker). We disagree.
In Baker, this court held that the search of a purse of a female passenger cannot be justified by the male driver’s parole search conditions. (Baker, supra, 164 Cal.App.4th at p. 1156.) Baker was the only passenger in a car that was stopped for speeding. The purse was sitting at her feet. When Baker was ordered to exit the vehicle during the subsequent parole search, she did so without taking her purse or asserting ownership of the purse. (Ibid.) This court stated that “[w]hen executing a parole or probation search, the searching officer may look into closed containers that he or she reasonably believes are in the complete or joint control of the parolee or probationer. [Citations.]” (Id. at p. 1159.) We also agreed that “[t]here is no obligation to ask whether the purse belonged to the parolee before searching it. [Citation.] And we agree that simply because a container is clearly designed for a person other than the parolee does not mean it may never be searched.” (Id. at p. 1160.) On the facts presented however, we concluded that “there could be no reasonable suspicion that the purse belonged to the driver, that the driver exercised control or possession of the purse, or that the purse contained anything belonging to the driver. [Citation.]” (Id. at p. 1159.)
Here, in contrast, the backpack was not found at the feet of M.G. Rather, it was found in the bed of the truck. Moreover, the backpack was not specifically designed or decorated to make it reasonably clear to an officer that it belonged to R.R. or to M.G., who are both males. Finally, although not required to assert a claim that a search was illegal, M.G. did not assert a claim of ownership to the backpack either by word or conduct when the truck was searched. Thus, the probation officer had reasonable suspicion that the backpack, which was found in the bed of a truck that the probationer was driving, belonged to the probationer or that the probationer exercised control or possession of the backpack. Therefore, the probation search of the backpack was not illegal and the juvenile court did not err in denying the suppression motion.
II. Disposition Order
DEJ
M.G. next contends that the juvenile court erred by failing to address whether he was eligible for DEJ. We agree.
“The DEJ provisions of section 790 et seq. were enacted as part of Proposition 21, The Gang Violence and Juvenile Crime Prevention Act of 1998, in March 2000. The sections provide that in lieu of jurisdictional and dispositional hearings, a minor may admit the allegations contained in a section 602 petition and waive time for the pronouncement of judgment. Entry of judgment is deferred. After the successful completion of a term of probation, on the motion of the prosecution and with a positive recommendation from the probation department, the court is required to dismiss the charges. The arrest upon which judgment was deferred is deemed never to have occurred, and any records of the juvenile court proceeding are sealed. [Citations.]” (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558, italics added.)
The determination of whether to grant DEJ requires consideration of “two distinct essential elements of the [DEJ] program, ” which are “eligibility” and “suitability.” (In re Sergio R. (2003) 106 Cal.App.4th 597, 607, fn. 10, original italics.) The eligibility requirements for DEJ are set forth in section 790 and are not at issue in this case.
Section 790, subdivision (b) provides that “[i]f the minor is found eligible for deferred entry of judgment, the prosecuting attorney shall file a declaration in writing with the court or state for the record the grounds upon which the determination is based, and shall make this information available to the minor and his or her attorney.”
Section 791 also provides several other notifications that must be provided to a minor, including “[a] full description of the procedures for deferred entry of judgment” and “[a] clear statement that, in lieu of jurisdictional and disposition hearings, the court may grant a deferred entry of judgment with respect to any offense charged in the petition, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment.” (§ 791, subd. (a)(1), (3).)
The suitability of a minor for DEJ is determined by the juvenile court in a hearing. “Upon a finding that the minor is also suitable for deferred entry of judgment and would benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment.” (§ 790, subd. (b).) “The court is not required to ultimately grant DEJ, but is required to at least follow specified procedures and exercise discretion to reach a final determination once the mandatory threshold eligibility determination is made. [Citation.]” (In re Luis B. (2006) 142 Cal.App.4th 1117, 1123.)
Here, the record fails to establish that M.G. was provided with written notification that he was eligible for DEJ in any form. The prosecution merely filed a document with the juvenile court indicating that M.G. was eligible for DEJ. There is nothing in the record to suggest that M.G. was notified of his eligibility. M.G. was not provided with the notifications required by section 791, nor did the juvenile court hold a suitability hearing.
The People contend these errors are harmless because M.G. effectively rejected DEJ when he denied the allegations of the petition and proceeded to a contested jurisdictional hearing. In support of this argument, the People cite In re Kenneth J. (2008) 158 Cal.App.4th 973 (Kenneth J.) and In re Usef S. (2008) 160 Cal.App.4th 276 (Usef S.). However, both of those cases are distinguishable.
In both Kenneth J. and Usef S., the prosecuting attorneys found the minors were eligible for DEJ, and the minors received notice of those determinations. Nonetheless, the minors denied the allegations of the wardship petitions and requested contested jurisdictional hearings. (Kenneth J., supra, 158 Cal.App.4th at pp. 976-978; Usef S., supra, 160 Cal.App.4th at pp. 281-283.) Kenneth J. held the juvenile court was not required to conduct a suitability hearing for a minor “who is advised of his DEJ eligibility, who does not admit the charges in the petition or waive a jurisdictional hearing, and who does not show the least interest in probation, but who insists on a jurisdictional hearing in order to contest the charges.” (Kenneth J., at pp. 979-980.) Kenneth J. found the minor’s actions “were tantamount to a rejection of DEJ.” (Id. at p. 980.) Usef S. similarly held the minor “effectively rejected DEJ consideration when he denied the allegations against him and insisted on a contested jurisdictional hearing.” (Usef S., supra, 160 Cal.App.4th at p. 286, fn. 3.)
In this case, however, M.G. was not notified he was eligible for DEJ. We disagree that the failure to notify the minor of DEJ eligibility was an “inconsequential” omission since “M.G. manifested no desire to participate in the program.” It is possible that, if M.G. had been informed he was eligible for DEJ, he would have decided to accept DEJ instead of denying the allegations and proceeding to a contested jurisdictional hearing. We simply cannot know how M.G. would have reacted because he was never notified of his eligibility.
The Attorney General argues M.G. was notified of his DEJ eligibility, but this assertion is not supported to any citation in the record. Our review of the record did not find any evidence that M.G. received such notification, either verbally or in writing. The prosecutor’s filing of a document with the juvenile court indicating that M.G. was eligible for DEJ does not establish notification in the absence of a proof of service or some other indication in the record that the document was provided to the minor and his attorney.
Wobbler offenses
Finally, M.G. contends that the juvenile court erred when it did not make specific findings on whether certain wobbler offenses, specifically counts 1 (possession of a concealed firearm) and 3 (possession of methamphetamine) were felonies or misdemeanors. Under section 702, “[i]f 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.”
Section 702 “requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.]” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) Where the juvenile court fails to comply with section 702, however, remand is not necessarily automatic. “Thus, speaking generally, the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error.… [H]owever, [the] setting 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.” (Manzy W., at p. 1209.)
Here, after the evidence was presented, the People contended that they had proven their case. Defense counsel argued otherwise, noting that count 1 was a wobbler offense if the minor previously had been found guilty. The People disagreed. As part of her argument, the prosecutor stated: “In re Jose T. [(1997) 58 Cal.App.4th 1218], it is a wobbler offense. It specifically states that it’s a wobbler offense. And that the District Attorney’s Office has exercised its discretion in issuing this case as a felony.” Subsequently, the juvenile court stated: “The petition that was filed July 31 is sustained.… [¶] … [¶] The Court specifically finds as true beyond a reasonable doubt Count 1 as a felony and Count 3 as a felony.” The petition had alleged that those counts were felonies.
On this record we conclude that the juvenile court did not fulfill the requirements of section 702 because the juvenile court did not state that it was exercising its discretion under section 702 to determine that counts 1 and 3 were felonies. (See also Cal. Rules of Court, rule 5.780(e)(5) [“If any offense may be found to be either a felony or a misdemeanor, the court must consider which description applies and expressly declare on the record that it has made such consideration, and must state its determination as to whether the offense is a misdemeanor or a felony”].) Instead, the juvenile court merely sustained the felony allegations in the petition.
Moreover, the prior discussion by defense counsel about wobbler offenses did not show that the juvenile court was aware of its discretion under section 702. Instead, defense counsel talked about how the prosecution decided to proceed with count 1 as a felony, even though it is a wobbler offense. The prosecution’s election to proceed with count 1 as a felony did not prevent the juvenile court from exercising its discretion to declare that count 1 was a misdemeanor. Thus, we cannot conclude that the record shows that the juvenile court was aware of, and exercised, its discretion under section 702.
We recommend the juvenile court on remand make express declarations on whether the wobbler offenses in this case are felonies or misdemeanors.
DISPOSITION
The findings and dispositional orders are set aside, and the matter is remanded to the juvenile court for further proceedings in compliance with section 790 et seq. and California Rules of Court, rule 5.800. If, as a result of those proceedings, the juvenile court grants DEJ to M.G., it shall issue an order vacating the findings and orders. If the juvenile court denies deferred entry of judgment to M.G., it shall reinstate its findings and orders, continuing in effect the judgment, subject to M.G.’s right to have the denial of deferred entry of judgment reviewed on appeal. If M.G. is not granted DEJ, the juvenile court should exercise its discretion under section 702 and expressly declare whether it is determining counts 1 and 3 of the petition are felonies or misdemeanors when reinstating the jurisdictional and dispositional orders.
WE CONCUR: GOMES, J., KANE, J.