Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. TJ18898, Catherine J. Pratt, Commissioner.
Jolene Larimore, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
INTRODUCTION
Minor Daniel V. appeals from a sustained juvenile delinquency petition. He contends the juvenile court erred in denying his suppression motion and in sustaining the petition’s charge that he unlawfully possessed live ammunition. He also contends he should have been awarded predisposition credit. We reverse the finding on that charge and remand for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
On July 10, 2010, Los Angeles Police Officer Steven Sieker and his partner, Officer Jennifer Carson, were on patrol when they saw a truck temporarily stopped four to five feet from the curb. Officer Sieker saw three men exit the truck. As the officers slowly drove past the truck, they saw the driver talking and texting on a cell phone, which Officer Sieker believed to be a violation of Vehicle Code section 23123.5, subdivision (a).
When the driver saw Officer Sieker, he told the officers that he was lost and was looking for the freeway. He spoke to them before the officers said anything to him. Officer Sieker backed up the patrol vehicle and parked it behind the truck. The officers exited the patrol car, and Officer Sieker approached the driver’s window. As he did so, he smelled the odor of marijuana emanating from the truck. Officer Sieker instructed the driver to put the cell phone down and get out of the truck. When the driver got out, a plastic container that looked similar to a pill bottle fell from his lap onto the ground. Officer Sieker asked the driver to hand him the container. After the driver handed it to him, Officer Sieker opened it and noticed that it contained a small amount of substance resembling marijuana.
Officer Sieker then asked the driver if there were guns in the truck. The driver said, “Not that I’m aware of.” The officers instructed appellant, who was in the front passenger seat, and another male in the back seat to exit. The latter ran away. The officers did not pursue him, but Officer Sieker asked appellant, “Why did that guy run?” Appellant answered, “Because there is a gun on the front passenger’s seat.”
Officer Sieker then handcuffed the driver and appellant, placed them inside the patrol car, and proceeded to search the truck. He recovered a loaded.380-caliber semiautomatic gun from the front passenger seat, a small plastic bag containing a white powdery substance resembling cocaine from under the same seat, and a bag containing live.380-caliber bullets from inside the center console underneath the cupholders.
The driver and appellant were then arrested and taken to the police station. At the station, appellant waived his Miranda rights and agreed to talk to Officer Sieker. Appellant stated he and several other juveniles had gone to a marijuana dispensary to get marijuana. One of the other juveniles had given him the gun to hold because it was “bothering that person where it was stuck in [his] waistband.” Appellant said he “knew it was a firearm” and he “knew it was loaded....”
Miranda v. Arizona (1966) 384 U.S. 436.
On July 13, 2010, the Los Angeles County District Attorney filed a petition under Welfare and Institutions Code section 602 requesting the juvenile court to adjudge and declare appellant a ward of the court. The petition alleged, in count 1, that appellant unlawfully possessed a concealed firearm, a felony under Penal Code section 12101, subdivision (a)(1), and, in count 2, that appellant unlawfully possessed live ammunition, a misdemeanor under section 12101, subdivision (b)(1).
All further statutory citations are to the Penal Code, unless otherwise stated.
Appellant was not charged with possession of the live ammunition found in the center console of the truck. The driver claimed ownership of that ammunition, and pled guilty to a charge of unlawful possession of live ammunition. The live ammunition appellant was charged with possessing was the ammunition in the handgun.
On July 29, 2010, appellant moved to suppress the evidence discovered by the police officers during the search of the truck, as well as his confession to Officer Sieker. After a hearing on August 2, 2010, the juvenile court denied the suppression motion. During the adjudication hearing on the petition, appellant conceded count 1, possession of a firearm, but contested count 2, possession of live ammunition. He testified he did not know there was ammunition in the truck or in the handgun. He also denied telling Officer Sieker he knew the gun was loaded.
After hearing the testimony, the trial court found true the two charged counts, and sustained the petition. The court declared appellant a ward of the court and placed him in a short-term camp program with a maximum period of confinement of three years. The court stated that, “To the extent it is a 654 issue, I will find that they [the two counts] merge.” The court did not mention any predisposition credit. Appellant filed a timely notice of appeal.
DISCUSSION
A. Suppression Motion
Appellant first contends the court should have granted his suppression motion because the police officers lacked reasonable suspicion to detain the driver and the other passengers in the truck. Appellant relies on the contention that using a cell phone to text while in a temporarily stopped vehicle is not a violation of the Vehicle Code. Because we find the officers did not detain the truck and its occupants until after they had reasonable suspicion to do so, we reject appellant’s argument.
In reviewing a trial court’s ruling on a motion to suppress, an appellate court applies two different standards of review. The reviewing court defers to the trial court’s findings of fact, both express and implied, if supported by substantial evidence. The reviewing court then independently applies the pertinent legal principles to those facts to determine whether the motion should have been granted. (People v. Carter (2005) 36 Cal.4th 1114, 1140.)
Here, the trial court credited the police officers’ testimony. Officer Sieker testified he was driving by the stopped truck when he saw the driver texting on his cell phone. There was no evidence that prior to this time, the police officers had turned on their patrol car’s lights, had displayed any weapon, had signaled to the driver, had spoken to the vehicle’s occupants, or had blocked the truck from being driven away. It was the driver who initiated contact with the officers by stating that he was lost and looking for the freeway. After hearing the driver’s statements, it was reasonable for the officers to approach the driver to render assistance. At that point, the interaction between the officers and the occupants was consensual and there was no detention. (See In re Manuel G. (1997) 16 Cal.4th 805, 821 [no Fourth Amendment violation where encounter is consensual; encounter is consensual when under the circumstances, a reasonable person would feel free to disregard police officers and go about his or her own business].)
As Officer Sieker approached the truck, however, he smelled the odor of marijuana emanating from the truck. At that point, he had reasonable suspicion to ask the driver and the other occupants to exit the truck. (See People v. Collier (2008) 166 Cal.App.4th 1374, 1376-1377 [officer may ask driver to step out of vehicle where officer smells the odor of marijuana]; People v. Benjamin (1999) 77 Cal.App.4th 264, 273 [“The ‘strong aroma of fresh marijuana’ can establish probable cause to believe contraband is present. [Citation.]”].) Because the officers did not detain the truck’s occupants until they had reasonable suspicion to do so, there was no error in denying the motion to suppress.
B. General Knowledge Requirement
Appellant next contends there was insufficient evidence to sustain the charge under section 12101, subdivision (b)(1) for unlawful possession of live ammunition. According to appellant, the trial court erred in ruling that section 12101, subdivision (b)(1) lacks a knowledge requirement, and in sustaining the petition under that interpretation of the statute. We agree.
In finding appellant had unlawfully possessed a firearm and had unlawfully possessed live ammunition, counts 1 and 2 of the petition, the trial court stated: “Based on the evidence presented, I do believe there is sufficient evidence for me to conclude beyond a reasonable doubt that both counts 1 and 2 are true. I am looking specifically at [section] 12101(b)(1):... A minor shall not possess li[v]e ammunition. That is the extent... of that section. It does not say that he shall not knowingly possess live ammunition. That is not, apparently, a requirement under the statute. So whether he knew that there was ammunition in the gun or not is not relevant in the context of this charge. So I will find that both allegations are true beyond a reasonable doubt. Count 1 is a felony. Count 2 is a misdemeanor.”
Defense counsel asked the court to consider merging the two counts under section 654 if the court was “going to remove the knowledge requirement.” The court responded, “There isn’t a knowledge requirement under [section] 12101(a), either.”
Counsel then stated, “Then, there’s the general knowledge requirement....” The court stated: “Right. But I mean some statutes have a specific knowledge requirement. This is not one of them. That’s what I was saying.” Defense counsel objected that only statutes like statutory rape did not have a knowledge requirement. The court responded that its “ruling [was] going to stand.”
After reviewing the record, we conclude the trial court’s statements indicated it erroneously believed that a petition for unlawful possession of ammunition under section 12101, subdivision (b)(1) may be sustained against a minor who does not know there is ammunition in a gun. Knowledge of the presence of the prohibited item, is an element of the offense of unlawful possession. (See, e.g., People v. Palaschak (1995) 9 Cal.4th 1236, 1242 [“The essential elements of possession of a controlled substance are ‘dominion and control of the substance in a quantity usable for consumption or sale, with knowledge of its presence and of its restricted dangerous drug character. Each of these elements may be established circumstantially.’ [Citations.]”]; People v. Jurado (1972) 25 Cal.App.3d 1027, 1030-1031 [“[U]nder the various statutes making criminal the possession of a weapon, knowledge of the presence and character of the object is an element of the offense. [Citations.]”].)
Here, it was disputed whether appellant knew of the presence of ammunition in the handgun. Officer Sieker testified that appellant admitted knowing the gun was loaded, but appellant denied making such an admission and denied such knowledge. The trial court did not resolve this disputed factual issue, as it found appellant’s knowledge “not relevant.” Because the trial court failed to find an essential element of the charge, we must reverse the sustaining of the petition as to count 2, and remand the matter to the trial court for a new adjudication hearing. (See People v. Hernandez (2003) 30 Cal.4th 1, 3 [“As a general rule, the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence.”].)
C. Sentencing Errors
Finally, appellant contends the trial court failed to calculate and award appellant any predisposition credit. The People concede the error, and request this court remand the matter to the trial court to calculate the appropriate predisposition credit. Accordingly, we will remand the matter to the trial court to calculate and award the proper predisposition credit.
DISPOSITION
The charge sustained as to count 2 is reversed. The matter is remanded to the juvenile court for further proceedings in light of this opinion.
We concur: EPSTEIN, P. J., WILLHITE, J.