Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. TJ16883, Charles Q. Clay III, Judge.
Murray A. Rosenberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.
WOODS, J.
S.F. appeals from the juvenile court’s order of wardship (Welf. & Inst. Code, § 602) after findings he was a minor who unlawfully possessed a concealable firearm (a felony) and possessed live ammunition (a misdemeanor). (Pen. Code, § 12101, subds. (a)(1) & (b)(1).) He was ordered into a camp community placement program. S.F. challenges the denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1) and the sufficiency of the evidence he was a “minor” and the ammunition was “live.” We affirm.
Statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The juvenile court heard the motion to suppress evidence in conjunction with the jurisdiction hearing.
1. Summary of the Evidence Presented at the Hearing
The evidence at the hearing established at approximately 10:30 p.m. on September 20, 2007, Los Angeles Sheriff Deputies Brandon Love and Michael Ong were patrolling 236th Street in a marked patrol car. They were in a high crime area in the city of Carson, where there had been recent shootings and gang activity. The juvenile curfew in Carson is 10:00 p.m. S.F. and two companions, all of whom appeared to be juveniles, were standing on the sidewalk in front of a house. The deputies were concerned about the young men’s safety as well as believing they were in violation of curfew. The deputies got out of their car, and called to the young men, asking them to come over.
As the young men approached, Deputy Ong noticed the butt of a gun protruding from S.F.’s pants pocket and alerted his partner. The deputies immediately detained S.F. and his two companions. Deputy Love searched S.F.’s person and recovered a loaded .38-caliber handgun and three .38-caliber bullets in the front pockets of S.F.’s pants. Following his arrest, S.F. was advised of and waived his right to remain silent, to the presence of an attorney and, if indigent, to appointed counsel (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694]) and told the deputies he was 15 years old.
S.F. did not testify in his defense. His mother, father and sister testified it was 10 to 15 minutes before 10:00 p.m. and S.F. was inside the front gate, not on the sidewalk, when the deputies drove up.
In rebuttal Deputy Ong testified and was corroborated with Deputy Love’s testimony. When Deputy Ong saw S.F. he had a gun in his pocket, he signaled to Deputy Love, before drawing his own weapon, and ordering the young men to kneel and place their hands on their heads.
2. The Juvenile Court’s Findings
At the conclusion of the hearing, S.F. moved to suppress the handgun and ammunition as the fruit of an unlawful detention. Defense counsel argued, relying on the defense witnesses’ testimony, the deputies had no reason to detain S.F. They pulled up to the house before 10:00 p.m., when the juvenile curfew was not yet in effect. And, even if the juvenile court believed the deputies’ testimony that he was outside after 10:00 p.m., S.F. was standing “in the right of way abutting [his] residence,” which should exempt him from the operation of the curfew.
The juvenile court denied the motion to suppress, concluding the initial contact between the deputies and S.F. was a consensual encounter. The deputies contacted the young men to inform them of a curfew violation and to ensure their welfare by advising them to go inside the house. S.F. was never detained because there was no showing of authority or coercion. Once the deputies saw the handgun in S.F.’s pocket, the consensual encounter ripened into a valid arrest for possession of a firearm by a minor based on probable cause. The search incident to S.F.’s arrest was lawful.
At the conclusion of the jurisdiction hearing, the juvenile court found the allegations true, sustained the petition, and found S.F. to be a person described by Welfare and Institutions Code section 602. At the disposition hearing immediately following, the court declared S.F. a ward of the court, determined the possession of a firearm offense (count 1) to be a felony, and ordered S.F. into a camp community placement program. S.F.’s maximum physical confinement period was calculated as three years two months.
CONTENTIONS
S.F. contends, as he did before the juvenile court, the deputies’ initial contact with him constituted an illegal detention. He further contends the evidence was insufficient he was a “minor” within the meaning of section 12101, subdivisions (a)(1) and (b)(1) (both counts) and in possession of “live” ammunition within the meaning of subdivision (b)(1) (count 2).
DISCUSSION
1. The Motion To Suppress Evidence Was Properly Denied
a. Standard of review
In reviewing the ruling on a motion to suppress, the appellate court defers to the trial court’s factual findings, express or implied, when supported by substantial evidence. (People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh evidence and draw factual inferences is vested in the trial court. (James, at p. 107.) In determining whether, on the facts found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Ramos (2004) 34 Cal.4th 494, 505.)
In light of its express factual findings, the juvenile court disbelieved the defense witnesses’ testimony and credited the deputies’ description of the encounter with S.F. Substantial evidence supports that determination. Accordingly, we analyze the propriety of the initial contact between the deputies and S.F. as described by the deputies.
b. S.F. was not unlawfully detained
Not every interaction between the police and an individual is protected by the Fourth Amendment. Police contacts fall into “three broad categories: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual’s liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821; see People v. Hughes (2002) 27 Cal.4th 287, 327-328.) Unlike consensual encounters, which do not trigger Fourth Amendment scrutiny, detentions must be supported by articulable suspicion that the person has committed or is about to commit a crime. (Florida v. Bostick (1991) 501 U.S. 429, 434 [111 S.Ct. 2382, 115 L.Ed.2d 389]; In re Manuel G., supra, 16 Cal.4th at p. 821.)
Whether relevant evidence obtained by assertedly unlawful means must be excluded is determined exclusively by deciding whether its suppression is mandated by the federal Constitution. (Cal. Const., art I, § 28; In re Randy G. (2001) 26 Cal.4th 556, 561-562.)
The deputies’ initial contact with S.F. did not implicate the Fourth Amendment. A police officer may approach and question an individual and ask for identification on the street or in other public places if the individual reasonably feels free under the circumstances to decline the officer’s requests or otherwise to terminate the contact. (Hiibel v. Sixth Judicial Dist. Court of Nev. Humboldt Cty (2004) 542 U.S. 177, 185 [124 S.Ct. 2451, 159 L.Ed.2d 292]; INS v. Delgado (1984) 466 U.S. 210, 216 [104 S.Ct. 1758, 80 L.Ed.2d 247]; Florida v. Bostick, supra, 501 U.S. at p. 434 [“No seizure occurs when police ask questions of an individual, ask to examine the individual’s identification, and request consent to search his or her luggage so-long as the officers do not convey a message that compliance with their requests is required”].) Indeed, although “most citizens will respond to a police request, the fact that people do so, and do so without being told they are free not to respond, hardly eliminates the consensual nature of the response.” (INS v. Delgado, supra, 466 U.S. at p. 216.) Instead, “whether a seizure has taken place is to be determined by an objective test, which asks ‘not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.’” (People v. Celis (2004) 33 Cal.4th 667, 673.)
S.F. insists the initial contact amounted to a detention under the objective test because the deputies acted under color of authority by ordering S.F. and his companions to approach. However, S.F.’s characterization of the initial contact is at odds with the evidence; the circumstances in this case did not reflect coercion or restraint. The testimony of both deputies indicated a request rather than an order for the young men to come over to them. The request was not accompanied by any threats or use of physical force, menacing tone or gestures, or abusive language. Although both deputies were in uniform and in a marked patrol car, they did not activate their overhead lights, or use a loudspeaker in contacting the young men. Deputies Love and Ong simply did not engage in any show of authority consonant with a seizure until seeing the gun in S.F.’s possession, which was probable cause to effect an arrest. (See United States v. Mendenhall (1980) 446 U.S. 544, 554-555 [100 S.Ct. 1870, 64 L.Ed.2d 497] [“Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. [Citations.] In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person”].) The initial contact between the deputies and S.F. was a consensual encounter. Accordingly, the motion to suppress was properly denied.
Deputy Love testified that he and his partner said, “Basically, ‘come here. Let me talk to you.’” Deputy Ong testified that he and his partner “[c]alled over to all three individuals and asked them to come over towards us.”
Deputy Ong testified the spotlight was illuminated when he and his partner drove up, and he used a flashlight after leaving the patrol car because the lighting was poor.
Because we find the initial contact was a consensual encounter rather than a detention, we need not address S.F.’s related claim the detention was illegal because “there were no objective facts for them to reasonably conclude that [S.F.] and his companions were in violation” of juvenile curfew. Nonetheless, we note at the disposition hearing S.F. did not dispute that he appeared youthful, or that the deputies’ reasonably believed he was a “minor” or that he was subject to juvenile curfew at the time. (See discussion, infra.) In any event, consensual encounters require no objective justification. (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.) The deputies’ purpose in contacting S.F., and whether it was objectively reasonable, was relevant only at the point the contact became a seizure. (Id. at p. 790.)
2. Sufficient Evidence Supports the Challenged Findings
a. Standard of review
The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to support a criminal conviction. (In re Cheri T. (1999) 70 Cal.App.4th 1400, 1404; In re Jose R. (1982) 137 Cal.App.3d 269, 275.) In either case “we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless “‘upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, supra, 18 Cal.4th at p. 331.)
b. The evidence was sufficient S.F. was a minor
We reject S.F.’s contention the evidence is insufficient he was a “minor” within the meaning of section 12101, subdivisions (a)(1) and (b)(1). Specifically S.F. claims that “at no time during [jurisdiction] hearing was any evidence presented as to [S.F.’s] age.” S.F. is factually incorrect. Deputy Love testified when interviewed, S.F. said he was 15 years old, thereby confirming the deputies belief S.F. was a minor. The testimony of a single witness, unless physically impossible or inherently improbable, is sufficient to support the verdict. (People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.) Deputy Love’s testimony, which was never contradicted by other evidence, was sufficient evidence S.F. was under the age of 18 years when he committed the offenses.
Section 12101, subdivision (a)(1) provides: “A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person.” Subdivision (b)(1) provides: “A minor shall not possess live ammunition.” For purposes of wardship, Welfare and Institutions Code section 602 defines a minor as “any person who is under the age of 18 years.” (Welf. & Inst. Code, § 602, subd. (a).)
c. There was sufficient evidence the ammunition was live
Perhaps a closer question is whether the evidence was sufficient the recovered ammunition was “live.” “‘Live ammunition’ as contemplated by the Legislature under this statute consists of any material (i.e., projectiles, shells, or bullets) in the present state of being capable of being fired or detonated from a pistol, revolver or any firearm. [Citations.]” (In re Khamphouy S. (1993) 12 Cal.App.4th 1130, 1134 (Khamphuoy S.) S.F. contends the record lacks any evidence the bullets found in the gun or in his pocket were live ammunition. Neither deputy testified the bullets were live ammunition. Nor did the deputies express an opinion that the bullets, in their present state, were capable of being fired or detonated from a pistol, revolver or any firearm.
In support of his substantial evidence argument, S.F. cites In re Arcenio V. (2006) 141 Cal.App.4th 613 (Arcenio V.) in which a police officer saw the minor and two companions acting suspiciously near a utility cabinet in an alley. (Id. at p. 615.) The officer detained them, and another officer retrieved two guns, marijuana and a glass pipe from inside the utility cabinet. (Ibid.) The minor admitted playing with one of the guns, but denied ownership. The officer unloaded the gun and booked the ammunition into evidence. (Ibid.)
In holding there was insufficient evidence to support the finding the ammunition was live within the meaning of section 12101, subdivision (b)(1), the Arcenio V. court emphasized there “was no direct or opinion testimony that the rounds were live.” (Arcenio V., supra, 141 Cal.App.4th at p. 616.) Instead, according to the Arcenio V. court the only testimony in the case before it was the “bullets were in the handgun and they were removed for booking purposes.” (Id. at p. 617.) Missing from the record before it, the Arcenio V. court held, was any testimony comparable to that given by the state traffic officer in Khamphouy S. that the bullets were removed from the guns “to make them ‘safe.’” (In re Arcenio V., at p. 617; see Khamphouy S., supra, 12 Cal.App.4th at p. 1135.)
Here, unlike Arcenio V., the evidence went beyond mere testimony the bullets were removed from the gun for booking purposes. The .38-caliber gun was found on S.F.’s person, in a front pocket of his pants. Deputy Love described the gun as “fully loaded” and testified he removed “six 38-caliber bullets” from the gun before booking the bullets and gun into evidence. That testimony is substantially similar to the testimony in In re Khamphouy S. that the bullets had to be removed from the guns to make them safe. In addition, three more .38-caliber bullets were found in the other front pocket of S.F.’s pants and were booked into evidence. The empty gun and the two sets of bullets were produced and identified by Deputy Love when he testified.
Deputy Love’s testimony in conjunction with other evidence supports a reasonable inference that S.F. was found in possession of live ammunition. The deputy spoke of recovering “bullets” as opposed to ammunition that was not live (i.e., shell casings, spent rounds, etc.). The presence of six bullets inside the gun, making it fully loaded, and the presence of the gun in a front pocket of S.F.’s pants suggest the gun was “in the present state of being capable of being fired.” (In re Khamphouy S., supra, 12 Cal.App.4th at p. 1134.) The existence of three matching bullets in the other front pocket of his pants shows S.F. had a ready supply from which to draw, if necessary, for the purpose of firing the gun. In light of this evidence, the juvenile court reasonably found the recovered ammunition was presently capable of being fired or detonated from a pistol, revolver or any firearm. (Id. at p. 1135.)
DISPOSITION
The order is affirmed.
I concur: PERLUSS, P. J.,
ZELON, J. Dissenting
I respectfully dissent from the portion of the opinion that concludes there was sufficient evidence to support count 2, for possession of live ammunition. I join the opinion in all other respects.
The totality of the testimony concerning the ammunition in this case was presented by Deputy Love, one of the arresting officers. He testified that he found a fully loaded handgun in the minor’s pocket, along with additional .38 caliber ammunition in another pocket. He identified in court both the ammunition taken from the weapon, as well as that located in the minor’s pocket, without further description of the ammunition. He gave no further testimony concerning that ammunition, and there was no indication in the record that anyone examined it for any purpose, or at any time. As the majority points out, there was no testimony that the bullets were live ammunition, or capable of being fired. There was no testimony of any test firing or other examination of the ammunition at all, nor an identification of the brand. There was not even any testimony that anyone believed that the ammunition was live.
I agree that, in a sufficiency of evidence review, we indulge every reasonable inference in favor of the judgment. There is, however, no evidence to support the inference required here. The only testimony is that there were bullets in the gun and in the minor’s pocket. The law requires more.
In re Khamphouy S. (1993) 12 Cal.App.4th 1130, recognizing the obligation of the prosecution to prove that the ammunition is live to establish a violation of Penal Code section 12021, subdivision (b), permitted a true finding based on circumstantial evidence. There, the testimony established that the weapon was loaded, that the brand of ammunition in the gun and in the car was the same, that the officers carefully removed and separated the ammunition to make the gun “safe”, and that the court concluded that the ammunition looked live. (Id. at p. 1135.) In a divided opinion, the court found this to be sufficient circumstantial evidence to affirm the finding. As the dissent pointed out however, this conclusion was reached “in a case where the People made no attempt to present evidence on that point, and none exists.” (Id. at 1136.)
This case is also a case where no attempt was made to present evidence. Unlike Khamphouy S., there was no testimony that the ammunition was handled in a way necessary to make the gun “safe,” nor was there a conclusion by the court that the ammunition looked live. Instead, as in In re Arcenio V. (2006) 141 Cal.App.4th 613, there “was no direct or opinion testimony that the rounds were live.” (Id. at p. 616.) In Arcenio V., the court concluded that the critical circumstantial evidence, relied on in Khamphouy S., which it described as “a very close case,” (Id. at p. 616) was also missing. Such is the case here. No direct evidence was presented to the court, and the circumstantial evidence that the minor had a gun and bullets was not sufficient to pass over even the low bar of Khamphouy. If possession of bullets and a weapon are sufficient without more, the requirement that the prosecution prove that the ammunition is live is made meaningless, despite the clear language of the statute. Because the statutory requirement is explicit, however, proof is required. It is absent here. On this record, I do not believe the true finding can be sustained.