Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Ventura No. 2006041189 Donald D. Coleman, Judge
Susan B. Lascher, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dana R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, Dana M. Ali, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
John L. appeals from an order declaring him a ward of the juvenile court (Welf. & Inst. Code, § 602) after he admitted possessing a deadly weapon (Pen. Code, § 12020, subd. (a)). The trial court granted probation and ordered appellant to pay a $100 restitution fine.
On appeal, appellant contends that the trial court erred in denying his motion to suppress evidence because the prosecution, in opposing the motion, presented no testimony at the hearing. (Welf. & Inst. Code, § 700.1) We conclude that appellant waived the issue. (Evid. Code, § 353, subd. (a); People v. Williams (1999) 20 Cal.4th 119, 136.) "[I]f 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.)
Facts
At the adjudication hearing, appellant filed a motion to suppress which was opposed by the prosecution based on the following summary of facts in a probation officer's report:
On October 11, 2006, Ventura Police Officer J. Young observed three juvenile males walking down Ventura Avenue during school hours. The officer recognized appellant and asked why he was not in school. Appellant said that he was enrolled at Ventura High School but refused to go to school until he was placed in a different school. Appellant said that he had a problem with the Ventura Avenue Gangsters because he was "White Power." Appellant was wearing baggie pants and a red baseball cap with "Ventura" printed on the front.
Officer Young conducted a patdown for weapons and found an 11 inch knife in appellant's pocket. The knife was in a sheath and covered by appellant's shirt and jacket. During the detention, appellant's great grandmother passed by but declined to take appellant home. She said that appellant had not been in school for a month and that she could not control him.
Officer Young cited appellant for carrying a concealed weapon and transported him to the school in his police car.
Submission on Probation Officer's Report
At the hearing on the suppression motion, the prosecutor stated that he was submitting on the probation officer's report. "I don't think I'm going to waste the Court's time . . . so I'm just going to submit on the written documents . . . ."
Appellant's counsel stated: "If there's no witnesses, we can submit on the documents as well." Counsel agreed there was no issue "about the detention being legal . . . . [C]ertainly there's enough for even at least a temporary detention." Counsel argued that the Officer Young had no reason to believe appellant may be armed and dangerous when he conducted a Terry patdown. (Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889].)
Appellant cites People v. Johnson (2006) 38 Cal.4th 717 for the principle that the prosecution, in opposing a motion to suppress evidence, must present live testimony at the suppression hearing. In Johnson, the defendant objected to the arresting officer's affidavit. The trial court sustained a hearsay objection and found that Code of Civil Procedure section 2009, which permits the use of affidavits "upon a motion," did not authorize the prosecution to proceed by affidavit. (Id., at p. 720.) The Supreme Court affirmed, holding that "neither Code of Civil Procedure section 2009 nor any other statute expressly authorizes the use of affidavits in lieu of live testimony at suppression hearings held pursuant to Penal Code section 1538.5." (Id., at p. 720.)
Unlike Johnson,appellant did not object to the probation report or request that Officer Young appear and testify. It is settled that a defendant can anticipate the prosecution's justification for a warrantless search and stipulate to facts underlying the detention. (People v. Williams, supra, 20 Cal.4th at p. 136.) "We see nothing wrong with this collapsed procedure, which cut[s] to the heart of the issue without wasting the [trial] court's time. If 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.]" (Ibid.)
That procedure was used here. People v. Johnson, supra, 48 Cal.4th 717, does not void the use of stipulated facts at a suppression hearing. (See e.g., People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183, 1193 & fn. 6 [stipulated testimony and housing contract considered at suppression hearing].) Counsel's statements and conduct was tantamount to a stipulation. (In re Horton (1991) 54 Cal.3d 82, 92-93.) "[I]n both civil and criminal matters, a party's attorney has general authority to control the procedural aspects of the litigation and, indeed, to bind the client in these matters. [Citations.]" (Id., at p. 94.)
Appellant asserts there was no evidence to support the trial court's finding that the detention and patdown were lawful. Pursuant to Education Code section 48264 , Officer Young was authorized to detain appellant for truancy and return him to school. (In re Humberto O. (2000) 80 Cal.App.4th 237, 241-243; In re James D. (1987) 43 Cal.3d 903, 915-916 [truancy detention is an "arrest"].)
Education Code section 48264 provides that a peace officer "may arrest or assume temporary custody, during school hours, of any minor . . . found away from his home and who is absent from school without valid excuse . . . ."
The patdown was a search incident to an arrest. (In re Humberto O., supra, 80 Cal.App.4th at p. 243.) It is irrelevant whether the officer spoke to the great-grandmother before or after the patdown. '' '[T]he "lawfulness of the search turns not on whether the officer intended to release the defendant after taking him into custody, but on whether the officer was justified in arresting the defendant and taking him into custody in the first place." [Citation.]' [Citations.]" (Ibid.) Here, appellant was subject to arrest for violation of Education Code 48264
The judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.