Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. SJ07006207
Ruvolo, P. J.
I. INTRODUCTION
Appellant Blair R. (the minor) appeals from a judgment entered under Welfare and Institutions Code section 602. He argues that the court erred in denying his motion to suppress evidence, and in failing to exercise its discretion to grant or deny deferred entry of judgment. We affirm.
All further undesignated statutory references are to the Welfare and Institutions Code.
II. PROCEDURAL BACKGROUND
The Alameda County District Attorney filed a juvenile wardship petition regarding the minor, alleging that on February 14, 2007, he unlawfully possessed a firearm (Pen. Code, § 12101, subd. (a)(1)), carried a concealed firearm (Pen. Code, § 12025, subd. (b)(4)), and possessed heroin (Health & Saf. Code, § 11350). The district attorney filed a determination of eligibility for deferred entry of judgment form, indicating that the minor was eligible.
The minor filed a motion to suppress under section 700.1, which was heard concurrently with the jurisdictional hearing. The court denied the motion, and sustained the petition as to the allegations of possession of a firearm and heroin, but made no finding on the allegation of carrying a concealed firearm. The court declared the minor a ward of the court, and committed him to the custody of the probation officer for placement in a “suitable foster home or private institution, or group home/county facility,” for a maximum period of confinement of three years eight months. This timely appeal followed.
III. FACTUAL BACKGROUND
On February 14, 2007, at approximately 2:15 p.m., Oakland police officers Bruce Vallimont and Todd Bergeron, and probation agent Ray Cardona, were patrolling near 31st Street and Martin Luther King, Jr. Way in Oakland. They were conducting parole and probation compliance activity, looking for parolees and probationers at large. Officer Vallimont knew this one-block area to be a “very high narcotics and weapons area,” and had personally made many arrests there.
Officer Vallimont observed a van parked on 31st Street. The minor was in the driver’s seat, and there were passengers in both the front seat and the right rear seat. The officers parked near the van, without blocking it. The officers exited their vehicle and approached the van.
As Officer Vallimont walked towards the van, the minor “was kind of turned towards the passenger, and he immediately fell in between the seats, and the right front passenger and right rear passenger immediately put their hands up in the air.” Officer Vallimont described the minor’s movements as “[l]ike he scooted over and dipped down. It was, like, quick, as we approached the vehicle. . . . I saw him tilt and be gone.” Officer Vallimont was approximately eight feet from the vehicle when he saw the minor “drop down.” He could “see clearly” through the driver’s window, and observed the minor “on his left side with his feet under . . . where the controls are, and his body was wedged between the center console where the engine is in the van and the driver’s seat.”
After observing the minor in this position, Officer Vallimont told him to show his hands, and simultaneously opened the driver’s side door because he “believed [the minor] was concealing, probably narcotics or a weapon or attempting to conceal himself . . . .” Once Officer Vallimont had opened the driver’s side door, he again “ordered [the minor] to show me his hands.” After the door was opened, the minor’s “right hand came from, like, behind his back area. I heard a thump as his hand came up, and he was trying to get his left hand out because he was wedged in between the seat.” Officer Vallimont described the “thump” as “[t]he sound a gun would make if it hit the floorboard of a car,” a sound he had heard before. The minor then climbed into the driver’s seat of the vehicle.
At the same time the minor was getting into the seat, Officer Bergeron “opened the passenger’s side door and advised . . . there was Code 7, which means a gun, and [Officer Vallimont] said, ‘Yeah, I heard it.’ ” Officer Vallimont then placed the minor in handcuffs and took him out of the van.
After the minor had been removed from the van, Officer Vallimont could see the gun from the doorway of the van. It was “on the underside of the floor on the right passenger seat, underneath it.” He retrieved the gun, and searched the rest of the van. He found a piece of plastic with a “brown tar substance” that was later identified as heroin. The heroin was on the console next to the driver’s seat.
IV. DISCUSSION
A. Motion to Suppress
The minor argues that the court erred in denying his motion to suppress, urging that the officers detained him without reasonable suspicion. The juvenile court found, in denying the motion, that “the detention did not occur until the [van] door was open, and up until then, the police had the right to investigate why three people would be sitting in the car in the middle of the day on the street in a very high crime area that involves shootings. So the police acted reasonably and had probable cause to approach the car. Then when they saw the furtive movement, then the actual detention was appropriate.”
“ ‘The standards for appellate review of the trial court’s determination on a motion to suppress . . . are well settled. The trial court’s factual determinations are reviewed under the deferential substantial evidence standard; its determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. [Citation.]’ . . .” (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395, citing People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.)
The minor argues that “[o]ther than being parked in a ‘high-narcotics area,’ there was nothing else about the van or its occupants that made Officer Vallimont believe there was criminal activity afoot in the van.” The officers were not, however, required to have probable cause before approaching the van. “ ‘[T]here is nothing in the Constitution which prevents a policeman from addressing questions to anyone on the streets.’. . . Police officers enjoy ‘the liberty (again, possessed by every citizen) to address questions to other persons[.]’. . .” (United States v. Mendenhall (1980) 446 U.S. 544, 553, quoting Terry v. Ohio (1968) 392 U.S. 1, 32-33.)
Though the trial court found that the officers had probable cause to approach the van, probable cause was not required.
The minor claims the officers had no “specific and articulable basis for believing a vehicle occupant [was] armed and dangerous before initiating a search of the passenger compartment” by opening the van door. He urges that police had no reasonable suspicion to search the vehicle “when they opened the doors of the van.”
Once the van door was opened, there is no dispute that, having already seen the minor wedged next to the driver’s seat on the floor of the van, combined with hearing a “thump” which sounded like a gun hitting the floor, the officers had cause to search the van.
A detention is reasonable under the Fourth Amendment “when the detaining officer can point to specific 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.) A police officer may “stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.]” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.) “ ‘ “Under the Fourth Amendment, government officials may conduct an investigatory stop of a vehicle only if they possess reasonable suspicion: a particularized and objective basis for suspecting the particular person stopped of criminal activity.” ’ ” (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484, citing People v. White (2003) 107 Cal.App.4th 636, 641.) The standard of reasonable suspicion is less demanding than that of probable cause; “no stop or detention is permissible when the circumstances are not reasonably ‘consistent with criminal activity’ and the investigation is therefore based on mere curiosity, rumor, or hunch.” (In re Tony C. (1978) 21 Cal.3d 888, 894, superseded on other grounds by Cal. Const., art. I, § 28.) Even if an innocent explanation of the circumstances is possible, police may nevertheless have reasonable suspicion. (Ibid.)
While Officer Vallimont neither had nor required reasonable suspicion to approach the van, subsequent events objectively, and rapidly, gave him that reasonable suspicion. As the officers approached the van, which was parked in a high crime area, Officer Vallimont saw the minor quickly lean over and disappear from view, while the passengers spontaneously put their hands in the air. At the same time, the rear passengers immediately put their hands up into the air. Officer Vallimont told the minor to show him his hands. Once the minor made the sudden movement and got down on the floor of the van with his hands out of sight, it gave the officers reasonable suspicion to detain the minor for their own safety. After Officer Vallimont opened the van door, he heard the thump, which he believed to be the sound of a firearm hitting the floor of the van. This conclusion was confirmed almost immediately when he was told by Officer Bergeron that there was a gun. At that point, Officer Vallimont had probable cause to arrest the minor, and could lawfully search the van incident to his arrest. (New York v. Belton (1981) 453 U.S. 454.) Accordingly, we find no error in the trial court’s denial of the minor’s motion to suppress.
Both parties have filed supplemental briefs on this issue pursuant to our order of January 29, 2008.
B. Deferred Entry of Judgment
The minor maintains that the court erred in failing to make a determination regarding whether to grant deferred entry of judgment (DEJ) under section 790 and California Rules of Court, rule 5.800 (Rule 5.800). The parties agree that the district attorney filed a determination of eligibility for DEJ form, indicating that the minor was eligible for DEJ.
DEJ in juvenile cases involves two determinations; eligibility and suitability. Section 790 provides in part that “(a) . . . this article shall apply whenever a case is before the juvenile court for a determination of whether a minor is a person described in Section 602 because of the commission of a felony offense, if all of the following circumstances apply: [¶] (1) The minor has not previously been declared to be a ward of the court for the commission of a felony offense. [¶] (2) The offense charged is not one of the offenses enumerated in subdivision (b) of Section 707. [¶] (3) The minor has not previously been committed to the custody of the Youth Authority. [¶] (4) The minor’s record does not indicate that probation has ever been revoked without being completed. [¶] (5) The minor is at least 14 years of age at the time of the hearing. [¶] (6) The minor is eligible for probation pursuant to Section 1203.06 of the Penal Code. [¶] (b) The prosecuting attorney shall review his or her file to determine whether or not paragraphs (1) to (6), inclusive, of subdivision (a) apply. If the minor is found eligible for [DEJ], 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. Upon a finding that the minor is also suitable for [DEJ] and would benefit from education, treatment, and rehabilitation efforts, the court may grant [DEJ]. Under this procedure, the court may set the hearing for deferred entry of judgment at the initial appearance under Section 657. The court shall make findings on the record that a minor is appropriate for [DEJ] pursuant to this article in any case where [DEJ] is granted.” (§ 790, subds. (a), (b).)
In In re Luis B. (2006) 142 Cal.App.4th 1117 (Luis B.), the court explained the DEJ procedure. “ ‘The DEJ provisions of section 790 et seq. were enacted as part of Proposition 21 . . . 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.’. . .” (Id. at pp. 1121-1122, citing Martha C. v. Superior Court (2003) 108 Cal.App.4th 556, 558.)
Rule 5.800 sets forth the procedures for consideration of whether DEJ should be granted. “(b) Before filing a petition alleging a felony offense, or as soon as possible after filing, the prosecuting attorney must review the child’s file to determine if the requirements of [section 790, subdivision (a)] are met. If the prosecuting attorney’s review reveals that the requirements of (a) have been met, the prosecuting attorney must file Determination of Eligibility—Deferred Entry of Judgment—Juvenile (form JV-750) with the petition. [¶] (1) If the court, the prosecuting attorney, and the child’s attorney agree that the child should receive a deferred entry of judgment, the hearing under this rule must proceed on an expedited basis. [¶] (2) If the court, the prosecuting attorney, and the child’s attorney do not agree that the child should receive a deferred entry of judgment, the court may examine the record and make an independent determination. If it is determined that the child should not receive a deferred entry of judgment, the case must proceed under chapter 14, articles 1 through 4, of this division. [¶] (c) The court must issue Citation and Written Notification for Deferred Entry of Judgment—Juvenile (form JV-751) to the child’s custodial parent, guardian, or foster parent. The form must be personally served on the custodial adult at least 24 hours before the time set for the appearance hearing. [¶] (d) . . . (2) If the child waives the right to a speedy disposition hearing, the court may summarily grant [DEJ]. [¶] (3) When appropriate, the court may order the probation department to prepare a report with recommendations on the suitability of the child for [DEJ] or set a hearing on the matter, with or without the order to the probation department for a report.” (Rule 5.800(b), (c) & (d), italics omitted.)
The juvenile court then “has the ultimate discretion to rule on the suitability of the minor for DEJ after consideration of the factors specified” in section 791 and Rule 5.800. (Luis B., supra, 142 Cal.App.4th at p. 1123.) The juvenile court “may grant DEJ to the minor summarily under appropriate circumstances . . ., and if not must conduct a hearing at which ‘the court shall consider the declaration of the prosecuting attorney, and report and recommendations from the probation department, and any other relevant material . . . .’ While the court retains discretion to deny DEJ to an eligible minor, the duty of the prosecuting attorney to assess the eligibility of the minor for DEJ and furnish notice with the petition is mandatory, as is the duty of the juvenile court to either summarily grant DEJ or examine the record, conduct a hearing, and make ‘the final determination regarding education, treatment, and rehabilitation . . . .’ ” (Ibid., citing section 791, subd. (b), italics omitted.) “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.]” (Ibid., italics added.)
The Attorney General maintains that the minor’s failure to admit the charges against him, “insisting instead on a suppression motion and a contested jurisdictional hearing, precluded consideration under DEJ.” In In re Kenneth J. (2008) 158 Cal.App.4th 973 (Kenneth J.), our colleagues in Division Two considered a similar situation. In Kenneth J. the court held that the minor’s failure to admit the allegations of the petition was “tantamount to a rejection of DEJ,” and therefore the juvenile court was not required to conduct a hearing under section 790. (Id. at p. 980.) Kenneth J. distinguished Luis B. on two grounds. First, in Luis B. “there was a failure of both the prosecuting attorney and the court to consider DEJ for a minor. Here, the prosecuting attorney satisfied the initial statutory obligation to consider DEJ.” (Ibid.) Secondly, “Luis B. is factually distinguishable by Kenneth’s actions that were tantamount to a rejection of DEJ.” (Ibid.) Kenneth’s actions were his failure to “admit the allegations of the petition, . . . instead insist[ing] on contesting them at a jurisdictional hearing.” (Id. at p. 979.)
Kenneth J. noted that “[i]t is perhaps true the DEJ statute makes no express provision for a minor in Kenneth’s position, one 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 to contest the charges.” (Kenneth J., supra, 158 Cal.App.4th at pp. 979-980 .) The court held that “the DEJ is clearly intended to provide an expedited mechanism for channeling certain first-time offenders away from the full panoply of a contested delinquency proceeding. That goal could not co-exist with a minor who insists on exercising every procedural protection offered, and who then on appeal faults the juvenile court for not intervening and short-circuiting those very protections.” (Id. at p. 980; see also In re Usef S. (2008 WL 444635)___Cal.App.4th___.)
Other courts have noted that the juvenile DEJ statutes are “not a model of clarity . . . . [¶] A certain infelicity . . . seems to pervade these statutes. . . .” (In re Mario C. (2004) 124 Cal.App.4th 1303, 1308 & fn. 1; see also Martha C. v. Superior Court, supra, 108 Cal.App.4th at p. 561 (“section 790 et seq. might be clearer . . . .”).)
The minor argues in his supplemental brief that the record contains no proof of service indicating he received notification of his DEJ eligibility. Here, the prosecuting attorney satisfied the statutory requirement to determine eligibility. The prosecutor filed the determination of eligibility form, as well as the “Citation and Written Notification for Deferred Entry of Judgment-Juvenile,” which was addressed to the minor, his mother and grandmother. While the proof of service is not in the record before us, we agree with respondent that there is a presumption that official duty was regularly performed and that notification occurred. (Evid. Code, § 664.)
Respondent maintains that the minor waived his right to a hearing on DEJ suitability by filing a motion to suppress and contesting the allegations. We do not agree that filing a motion to suppress in a juvenile proceeding relieves the court of its duty to hold a hearing on the suitability of DEJ where the minor’s eligibility already has been established. In the parallel provisions of the Penal Code for DEJ, a defendant may, if his or her motion to suppress is denied, change his or her plea to guilty and be considered for DEJ. We see no reason why juveniles should be denied the same right.
The juvenile DEJ statute has “parallel provisions” in Penal Code sections 1000.1 and 1000.2. (In re Mario C., supra, 124 Cal.App.4th at p. 1309.) A defendant seeking DEJ under those “parallel” statutory provisions may plead no contest and consent to DEJ and a drug diversion program after his or her motion to suppress is denied. (People v. Mazurette (2001) 24 Cal.4th 789, 791.)
The minor here, however, made no attempt to change his plea after the denial of his motion to suppress. In fact, in the context of discussing the minor’s rejection of a negotiated disposition at an earlier hearing, his attorney represented to the court that “he wants a trial. He denies possession of either the gun or the heroin.” The circumstances of this case go beyond a “failure to admit the allegations.” Here, the minor expressly rejected a plea bargain, and denied the factual allegations of the petition. Moreover, he indicated, through his attorney, that he wanted to go to trial. Following denial of his motion to suppress, he did not seek to change his plea. We find that under these circumstances, the minor waived his right to a hearing on the suitability of DEJ.
V.
DISPOSITION
We affirm the jurisdictional and dispositional orders.
We concur: Reardon, J., Sepulveda, J.