Opinion
A154157
09-16-2019
In re TOBIAS G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. TOBIAS G., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. JV02871301)
Tobias G. appeals a disposition order adjudging him a ward of the juvenile court and placing him on probation. (Welf. & Inst. Code § 602.) Tobias contends the order must be reversed because the juvenile court (1) erroneously denied his motion to suppress evidence (§ 700.1), and (2) failed to conduct a hearing to determine his suitability for Deferred Entry of Judgment (§ 790, et. seq.). We affirm.
Subsequent statutory references are to the Welfare & Institutions Code unless another statute is cited.
FACTUAL AND PROCEDURAL BACKGROUND
I. The September 2017 Incident
On September 2, 2017, at approximately 12:45 in the morning, Berkeley Police Officer Donovan Edwards was on patrol in West Berkeley when he noticed a sedan and a Land Rover stopped on opposite sides of a gas pump in a well-lit gas station on University Avenue. There were multiple people in the sedan, including Tobias who was sitting in a rear seat with his arms and legs outside the car, leaning forward and holding an object. Edwards recognized Tobias as a minor who attended Berkeley High School, where Edwards had served as a resource officer. Edwards could not see if anybody was in the Land Rover, but he recognized it as belonging to Tobias's family.
Edwards decided to "make contact" with Tobias to "see if he was okay" because Tobias was a minor at a "gas station in [a] parked vehicle at such a late hour." His decision to approach was also informed by information he had that Tobias was one of a group of young men associated with a known gang in Berkeley. Edwards parked approximately 10 feet behind the sedan. He did not activate his lights or siren and there was nothing blocking the sedan from moving.
Edwards exited his vehicle and "gradually walked up toward where Tobias was seated." Within a few seconds after getting out of the car, Edwards said "Hey Tobias," in a "[c]asual and friendly manner." Tobias looked at Edwards and then looked forward, moving his arms and legs inside the car. At that point, Edwards was still about 10 feet from the car and he could no longer see Tobias, but he could see a backpack on the ground near the opened car door. The officer continued to walk to the car and when he was about two or three feet away, he saw that the main compartment of the backpack was fully open revealing "multiple" plastic bags containing a substance that Edwards suspected was marijuana. Edwards could not determine the size or number of bags but there appeared to be at least two or three sandwich-sized bags. He also detected a strong smell of marijuana wafting from the open car door.
At that point, Edwards put the backpack on the hood of the car and turned his attention to the driver, explaining that he was making contact because he smelled marijuana coming from the vehicle. The driver responded that he had a "marijuana card," and showed the officer a bag containing a substance that appeared to be marijuana, which resembled the bags in the backpack. Then Edwards radioed a request for officer assistance to conduct a search for additional marijuana. When backup arrived, Edwards asked Tobias to get out of the car so that he could be searched. Tobias became "a little evasive" asking, "Hey, do I have to?" to which Edwards responded that he did. After Tobias stepped out of the car, his demeanor and mannerisms suggested that he was planning to flee, so Edwards placed him in handcuffs. Initially, Edwards performed a "pat search . . . for weapons or any type of dangerous objects." During that patsearch, he felt an object that he recognized as a magazine or "magazine well" for a firearm in the waistband of Tobias's pants and then removed a Glock 23 firearm from his person. After finding the gun, Edwards conducted a more thorough search of Tobias and found approximately $796 in cash, an orange window-break tool, and other items, including an iPhone. After completing his search of Tobias, Edwards searched the backpack where he found "[a]dditional suspected marijuana" in plastic sandwich bags, multiple .40 caliber bullets, empty plastic bags, and a "press-lock" plastic bag containing pills that looked like ecstasy. On the ground under the sedan where Tobias had sat, the officer found an operable digital scale.
Because the officers had recovered a firearm from Tobias, they removed the other occupants from the sedan, so they could be detained safely. Then, Edwards searched the sedan and found the single bag of marijuana that the driver had previously shown him. There was nobody in the Land Rover, but Tobias had the key and a record check confirmed it belonged to his family. Tobias was arrested while the other individuals were released at the scene.
II. The Wardship Proceeding
On September 6, 2017, the Alameda County District Attorney filed an original wardship petition alleging that 17-year-old Tobias was a person described by section 602 due to his commission of four felonies: (1) carrying a concealed firearm on one's person in a public place (Pen. Code, § 25400, subd. (a)(2)); (2) carrying a loaded firearm in a city (Pen. Code, § 25850 subd. (a)); (3) possession of a controlled substance along with a firearm (Health & Saf. Code, § 11370.1, subd. (a); and (4) manufacturing/sale of a large-capacity magazine (Pen. Code, § 32310).
On September 7, 2017, the juvenile court denied a request to release Tobias to his parents and ordered that he be detained in custody. On September 12, Tobias filed a motion to suppress evidence obtained from the search of his person and property, on the ground that the police violated his constitutional rights by conducting searches without a warrant and/or sufficient cause to justify the invasion of his liberty. The following day, Tobias was released to his parents on GPS monitoring and a few weeks later, the court removed the GPS monitor and ordered home supervision. Meanwhile, the court granted requests to continue the contested jurisdiction hearing.
The motion to suppress evidence was heard and argued over several court sessions in November and December 2017. On January 16, 2018, the juvenile court denied the suppression motion. The court found that the search of Tobias was not "justifiable as a weapons frisk" because Edwards was "not concerned about his safety," but that the officer did have probable cause to believe that an illegal drug transaction was occurring and, therefore, had probable cause to search for "contraband or money." A pretrial hearing to determine jurisdiction was set for February 9, 2018.
At the February 9 hearing, the juvenile court was advised that the parties had reached a plea agreement. Tobias admitted committing a misdemeanor violation of the count (2) charge of carrying a loaded firearm on one's person in a city in exchange for dismissal of the other three charges. Pursuant to a March 19, 2018 disposition order, Tobias was adjudged a ward of the court and placed on home probation with terms and conditions.
DISCUSSION
I. Denial of the Suppression Motion
Tobias contends that the juvenile court erred by denying his suppression motion because (1) his detention by Officer Edwards constituted an unreasonable seizure of his person and the later-discovered contraband was the fruit of the poisonous tree, and/or (2) the warrantless searches of his person and backpack were not justified.
"The Fourth Amendment of the federal Constitution requires state and federal courts to exclude evidence obtained from unreasonable government searches and seizures. [Citation.]" (People v. Garry (2007) 156 Cal.App.4th 1100, 1105.) "The standard of appellate review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)
A. The Detention Was Lawful
Tobias contends that Officer Edwards executed an unlawful detention by getting out of his patrol car and walking toward the sedan without having any reason to believe that Tobias was committing or about to commit a crime. The People disagree, arguing there was a consensual encounter, which did not become a detention until there was reason to believe that Tobias was conducting an illegal drug sale.
"For purposes of Fourth Amendment analysis, there are basically three levels of police contacts or interactions with individuals. First are 'consensual encounters.' They are police-individual interactions which result in no restraint of an individual's personal liberty whatsoever, i.e., no seizure; and which may properly be initiated by police officers even if they lack any objective justification. [Citation.] Second are 'detentions.' They are seizures of an individual which are strictly limited in duration, scope, and purpose, and which may be undertaken by the police if there is an articulable suspicion that a person has committed or is about to commit a crime. [Citation.] Third are those seizures of an individual which exceed the permissible limits of detention, seizures which include formal arrests and restraints on an individual's liberty comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime." (People v. Jones (1991) 228 Cal.App.3d 519, 522-523; see also In re Manuel G. (1997) 16 Cal.4th 805, 821 (Manuel G.).)
In Manuel G., supra, 16 Cal.4th at p. 821, the California Supreme Court provided the following guidelines for distinguishing between consensual encounters and detentions: "The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual, and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.] '[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled. [Citations.] The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred."
Applying these principles, we conclude that when Officer Edwards walked toward the sedan and greeted Tobias, he initiated a consensual encounter. No objective justification for that initial encounter was required, but we note that by that time the officer was already aware of several relevant facts. Tobias was a minor, out late at night, sitting in the back seat of somebody else's vehicle in a gas station, with part of his body outside the vehicle. After Tobias declined to engage with the officer and withdrew into the car, Edwards saw the open backpack containing bags of apparent marijuana and experienced the strong smell of marijuana. That observation and olfactory sensation, added to what Edwards already knew, gave rise to a reasonable suspicion of criminal activity, thus justifying a detention, which Edwards effectuated by walking the two or three feet to the vehicle, picking up the backpack and questioning the occupants about the scent of marijuana emanating from the car.
Tobias insists that he was detained before Edwards saw the contents of the backpack. He argues that as Edwards stepped out of the car and started walking toward the sedan a reasonable youth in his situation would have interpreted the officer's greeting as a command and would have felt trapped in the backseat of a vehicle that did not belong to him. As authority for this argument, Tobias relies on J.D.B. v. North Carolina (2011) 564 U.S. 261, which holds that the age of a child who has been subjected to police questioning may be relevant to the determination whether a custodial interrogation has occurred because, among other things, a child may feel pressure to engage with a police officer under circumstances where an adult would feel free to leave. (Id. at p. 276.) Applying this same rule to a search and seizure determination makes sense since both inquiries "focus on how reasonable persons would perceive their interaction with police." (In re J.G. (2014) 228 Cal.App.4th 402, 411.)
Here, Tobias was a few months shy of 18 when he was approached by an officer whom he knew. We find it unlikely that a reasonable individual in that situation would have felt increased pressure to interact with the officer because of his youth. Our conclusion is reinforced by Tobias's objective reaction to the officer's greeting in that he felt free to withdraw into the car. That decision by Tobias could have ended the encounter if not for the fact that an opened backpack containing suspected marijuana was in plain view on the ground next to Tobias. We note too that even after the encounter turned into a detention, Tobias was comfortable asking whether he had to get out of the car. Thus, while a minor's age may sometimes be a factor in determining whether a police encounter is consensual, it is not determinative here.
Because Tobias's argument rests on the erroneous premise that he was detained before Edwards saw what was in the open backpack, we reject his claim that the detention was unlawful. The record shows that the detention was lawful under the Fourth Amendment because when the encounter reached the point that Tobias was not free to disengage from Edwards, there were "specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may [have been] involved in criminal activity." (People v. Souza (1994) 9 Cal.4th 224, 231.)
B. The Searches Were Lawful
Tobias contends that even if he was detained lawfully, the warrantless searches of his person and backpack were illegal because Officer Edwards did not have (1) reasonable suspicion to search for weapons, or (2) probable cause to arrest Tobias for a drug-related offense. As we explain, both contentions fail.
1. Reasonable Suspicion Justified a Patsearch
"The principles surrounding a patsearch are well settled. A limited, protective patsearch for weapons is permissible if the officer has 'reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.' [Citations.] ' "[W]hen an officer is justified in believing 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 may conduct a patdown search "to determine whether the person is in fact carrying a weapon." [Citation.] "The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence." ' " (In re H.H. (2009) 174 Cal.App.4th 653, 657-658.)
Here, there were reasons to believe that Tobias might be armed because: he had associated with persons involved in gangs and possessing firearms in the past; it appeared that he was in possession of marijuana and perhaps had engaged in an illegal drug sale; and he acted as though he might try to flee from the scene. When an officer has a reasonable suspicion that he has stumbled upon illegal drug activity in a car, he may order the occupants to get " 'out of the vehicle,' " and pat them down " 'for weapons to ensure the officer's safety and the safety of others.' " (People v. Collier (2008) 166 Cal.App.4th 1374, 1378 (Collier).) " '[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion.' " (People v. Fews (2018) 27 Cal.App.5th 553, 560 (Fews).) And, "[d]rug crimes have been recognized as offenses in which the perpetrators are likely to be armed with guns." (Ibid.) Under these circumstances, absent some factor alleviating an objective risk to officer safety, the patdown search for weapons was justified. (Collier, supra, at p. 1378.)
Tobias contends that Officer Edwards admitted at the suppression hearing that he did not have reason to believe Tobias was armed and dangerous. At the hearing, the prosecutor asked Edwards the following question: "When you did the pat search of [Tobias], did you suspect any kind of weapons or firearms?" Edwards responded "No." Tobias contends that this "admission" means Edwards was not actually concerned about officer safety, which precludes a finding that there was a reasonable suspicion justifying the patsearch. (Citing United States v. Lott (1st Cir. 1989) 870 F.2d 778, 783; United States v. Prim (9th Cir. 1983) 698 F.2d 972, 975.) The trial court was persuaded by this argument, but it misconstrues the law and, applying our independent standard of review, we reject it.
An officer's uncommunicated state of mind is irrelevant. (Manuel G., supra, 16 Cal.4th at p. 821.) Thus, the two federal cases upon which Tobias relies have been criticized for ignoring the fact that an officer can have an objectively reasonable concern for officer safety even if he has no actual subjective fear for his own safety. (See United States v. Baker (5th Cir. 1995) 47 F.3d 691, 693-694 [and cited authority].) Moreover, viewed holistically Officer Edwards's testimony strongly suggests that he was concerned about officer safety and that this is why he undertook the patsearch to check for weapons. His testimony that he did not suspect Tobias was carrying "any type" of weapon or firearm was ambiguous. He may have meant he expected to find no particular kind of weapon, rather that that he expected to find no weapon at all. Indeed, he prefaced this statement with explicit testimony that he decided to patsearch Tobias, and that "[a] pat search is usually done for weapons or any type of dangerous objects."
Tobias contends that the objective facts did not justify the patsearch because it is illogical to infer that drug-related crimes involve weapons, particularly when the drug is marijuana, the use of which is now legal due to the passage of Proposition 64. However, like the defendant in Fews, supra, 27 Cal.App.5th at p. 561, Tobias overstates the effect of Proposition 64. "It remains unlawful to possess, transport, or give away marijuana in excess of the statutorily permitted limits, . . . to engage in unlicensed 'commercial cannabis activity,' and to possess, smoke or ingest cannabis in various designated places, including in a motor vehicle while driving. [Citations.] The possibility of an innocent explanation for the possession of marijuana 'does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.' " (Ibid.)
The Fews court found that after the passage of Proposition 64, "the odor and presence of marijuana in a vehicle being driven in a high-crime area, combined with . . . evasive and unusual conduct" were sufficient grounds for a patsearch because they were "reasonably suggestive of unlawful drug possession and transport." (Fews, supra, 27 Cal.App.5th at p. 561.) The circumstances here were slightly different but at least as strong. Edwards not only smelled marijuana but observed facts consistent with an illegal sale of drugs by a minor, whose past associations suggested he had access to firearms and whose present behavior was consistent with someone preparing to flee. Under the totality of the circumstances viewed objectively, a reasonably prudent person would be justified in believing that his safety or the safety of others was at risk. Accordingly, a limited patsearch of Tobias for weapons was permissible.
2. Probable Cause Justified An Arrest on Weapons Charges
Tobias challenges the juvenile court's finding that the warrantless searches of his person and backpack were justified as incident to a lawful arrest. The " 'touchstone' " of the Fourth Amendment prohibition of unreasonable searches and seizures is " 'reasonableness,' " which generally requires law enforcement officials to obtain a judicial search warrant before undertaking searches to discover evidence of criminal wrongdoing (People v. Macabeo (2016) 1 Cal.5th 1206, 1213 (Macabeo).) " 'In the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.' " (Ibid.)
One such exception is the search incident to a lawful arrest. (Macabeo, supra, 1 Cal.5th at p. 1213.) "When a custodial arrest is made, and that arrest is supported by independent probable cause, a search incident to that custodial arrest may be permitted, even though the formalities of the arrest follow the search." (Id. at p. 1218.) "Probable cause for arrest exists when the facts known to the arresting ' "officer would lead a man of ordinary care and prudence to believe and conscientiously entertain an honest and strong suspicion that the person is guilty of a crime." ' " (People v. Rivera (1992) 8 Cal.App.4th 1000, 1009.)
In arguing that the search incident to arrest exception did not apply here Tobias incorporates his erroneous assumption that the patsearch was not lawful. For this reason alone, his argument fails; once the weapon was discovered, Edwards had probable cause to arrest Tobias and conduct a more thorough search incident to that arrest. In light of this conclusion, we need not address the juvenile court's finding that the warrantless search of Tobias was incident to his arrest for illegal drug activity, which Tobias disputes. However, we will briefly address two cases upon which Tobias mistakenly relies, Macabeo, supra, 1 Cal.5th 1206, and In re D.W. (2017) 13 Cal.App.5th 1249 (D.W.).
We likewise deny on relevance grounds Tobias's request for judicial notice of the "California General Election Tuesday November 8, 2016 Official Voter Information Guide." --------
In Macabeo, the police stopped defendant for riding his bike through an intersection without stopping at a stop sign and then searched his cell phone without a warrant, finding illicit photos. (Macabeo, supra, 1 Cal.5th at pp. 1210-1211.) Concluding that the phone search violated the Fourth Amendment, the California Supreme Court found, among other things, that the search did not qualify as incident to arrest because state law precluded police from arresting defendant for the infraction, and even though he could have been arrested under federal law, the officers did not make a custodial arrest for the Vehicle Code infraction. (Id. at pp. 1218-1219.) The present case is different. Here, Officer Edwards did not search Tobias's cell phone, but instead conducted a patsearch for officer safety, which disclosed a weapon. Once the gun was discovered during a lawful patsearch, the officer had authority to make a custodial arrest (§ 625), and he subsequently did place Tobias under arrest after completing the full searches, which uncovered additional contraband.
In D.W., supra, 13 Cal.App.5th 1249, three police officers approached a group of people who had gathered during the afternoon in an area frequented by gangs because they were concerned the group might try to "attract violence." (Id. at p. 1251.) One officer told D.W. he smelled like marijuana and D.W. acknowledged he had just smoked some. The officer decided to search D.W. to see if he had more marijuana and felt a revolver in D.W.'s backpack, which he removed. In the subsequent wardship proceeding, D.W.'s motion to suppress the gun was denied, but that judgment was reversed in light of Macabeo. (Id. at pp. 1251-1252.) The D.W. court reasoned that when the officers decided to search the appellant, they did not have probable "cause to make a custodial arrest nor evidence that he was guilty of anything more than an infraction." (Id. at p. 1253.) Tobias contends that D.W. governs here because, before Officer Edwards searched Tobias, he did not have probable cause to make a custodial arrest or evidence that Tobias was guilty of a misdemeanor or felony. We disagree. In contrast to D.W., Tobias did not carry his gun in his backpack but in his waist band, where it was discovered pursuant to a lawful patsearch. Once Officer Edwards discovered that this minor was armed, he had the authority and the intention to make a custodial arrest. (§ 625.) A search of Tobias's backpack incident to this arrest does not offend the Fourth Amendment.
II. Deferred Entry of Judgment
Tobias contends the juvenile court committed reversible error by failing to consider his suitability for deferred entry of judgment (DEJ), pursuant to section 790 et seq. DEJ is a program that was enacted as part of The Gang Violence and Juvenile Crime Prevention Act of 1998, which "provide[s] 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. (§§ 791, subd. (a)(3), 793, subd. (c).)" (Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
"To come within the DEJ law's ambit, a minor must be a first-time felony offender charged with a crime not listed in section 707, subdivision (b) (serious or violent offenses creating presumption of unfitness for juvenile jurisdiction) or Penal Code section 1203.06 (crimes rendering offender ineligible for probation). (§ 790, subd. (a).) If a minor meets the eligibility requirements for DEJ, the prosecuting attorney must provide notice thereof to the minor and the trial court must 'conduct the necessary inquiry and exercise discretion to determine whether' the minor is suitable for DEJ. [Citation.] A court may deny DEJ to a minor otherwise eligible if it deems the minor unsuitable for rehabilitation." (In re Spencer S. (2009) 176 Cal.App.4th 1315, 1324, fn. omitted.)
Here, as our factual summary reflects, the original section 602 petition charged Tobias with multiple felonies, thus raising the possibility of DEJ. The record further shows that the day after the petition was filed, the District Attorney completed the first step of the DEJ process by filing judicial counsel forms indicating that Tobias was eligible for consideration for DEJ. Those forms incorporated a notice to Tobias's parents that the initial eligibility determination had been made by the district attorney and that the juvenile court would consider whether or not to grant DEJ at the September 7, 2017 hearing. However, the record does not contain proof of service of this notice on the parents and, as best we can determine, DEJ was not addressed at that hearing or any other hearing in this case.
Tobias contends that under these circumstances, the jurisdiction and disposition orders must be conditionally reversed pending completion of a DEJ suitability hearing, relying primarily on In re Trenton D. (2015) 242 Cal.App.4th 1319 (Trenton D.). The People agree a conditional reversal and remand is necessary. We disagree.
In Trenton D., a juvenile ward was the subject of a supplemental petition charging him with felony discharge of a firearm. (Trenton D., supra, 242 Cal.App.4th at p. 1322.) Following a contested hearing, the court sustained an amended allegation that the minor committed felony possession of a firearm, continued his wardship, and committed him to a rehabilitation facility. (Id. at pp. 1324-1325.) On appeal, the Trenton D. court ordered a conditional reversal and remand, so the juvenile court could consider the minor's suitability for DEJ. In reaching this conclusion, the court rejected the contention that a suitability hearing was not required because the minor contested the felony charge. It reasoned that a minor who receives proper notice of DEJ eligibility and then fails to admit the charges or contests jurisdiction effectively rejects the DEJ expedited procedure, but Trenton had not received notice of his DEJ eligibility and, under that circumstance, a suitability hearing was required. (Id. at pp. 1325-1326.)
If the juvenile court had exercised jurisdiction over Tobias based on a finding that he committed a felony, a remand for a DEJ suitability hearing might by warranted under the reasoning of Trenton D. However, Tobias and the People both overlook the fact that after Tobias admitted his commission of a misdemeanor the felony allegations in the section 602 petition were dismissed. Thus, by the time the court was called upon to make jurisdiction or disposition orders, DEJ was not an available option for Tobias. (See In re Spencer S., supra, 176 Cal.App.4th at p. 1328 [holding that the "DEJ law's exclusion of juvenile misdemeanants from its benefits" does not violate equal protection].)
The present case is analogous to In re R.C. (2010) 182 Cal.App.4th 1437 (R.C.), a case not cited by either party. There, a section 602 petition alleged that "Minor" committed felony vandalism, and the district attorney determined Minor was eligible for DEJ. At a hearing a few weeks later, Minor's counsel advised the court that the parties were in settlement negotiations and therefore the jurisdiction hearing was continued several times. At a subsequent hearing, Minor admitted a misdemeanor violation of the felony charge, the court found that Minor committed misdemeanor vandalism and then exercised jurisdiction over Minor on that ground. (Id. at p. 1440.) Thereafter, Minor was adjudged a ward and placed on probation. On appeal, he argued that the juvenile court erred by failing to exercise its discretion to determine whether he was suitable for DEJ, but the appellate court disagreed.
The R.C. court observed that although the DEJ provisions are not a " 'model of clarity,' " the "statutory scheme does not appear to contemplate that the juvenile court will make a suitability determination unless the minor admits the offense charged." (R.C., supra, 182 Cal.App.4th at p. 1443.) In the underlying proceeding, Minor did not admit the charged felony or express his willingness to admit that charge but instead admitted a misdemeanor. "At that point, the case was no longer 'before the juvenile court for a determination of whether a minor [was] a person described in Section 602 because of the commission of a felony offense' (§ 790, subd. (a)), and the DEJ procedures were no longer applicable." (Id., citing Spencer S., supra, 176 Cal.App.4th at pp. 1324-1327). Thus, the court found, the "juvenile court had no occasion to exercise its discretion to determine whether Minor was suitable for DEJ." (Ibid.)
We conclude that this case is governed by R.C. The record shows that Tobias never expressed an inclination to admit any of the felonies alleged in the wardship petition. He contested jurisdiction until his suppression motion was denied and then he admitted committing a misdemeanor. At that point, DEJ procedures were not applicable and thus the court was not required to hold a suitability hearing prior to ruling on jurisdiction and disposition.
DISPOSITION
The juvenile court's disposition order is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
STREETER, Acting P. J. /s/_________
BROWN, J.