Opinion
B202489
4-17-2008
In re LIONEL W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. LIONEL W., Defendant and Appellant.
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED
On July 13, 2007, a petition filed pursuant to Welfare and Institutions Code section 602 alleged Lionel W. possessed cocaine in violation of Health and Safety Code section 11350, subdivision (a). Following a contested hearing during which the allegation was found to be true, Lionel W. was placed on probation and granted deferred entry of judgment pursuant to section 790. Since there is not yet an appealable judgment or order (§ 800), the appeal must be dismissed.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecutions case.
On January 29, 2007, Los Angeles Police Officer David Redd (Redd) and his partner, Officer Angelo, were on patrol on 51st Street in Los Angeles. The area is known as a "gang area" occupied by the "Five Deuce Hoovers" and, accordingly, officers are generally concerned that persons in the area, especially those wearing baggy clothing, might be armed. For that reason, whenever he stops a person in the area, Redd routinely performs a "pat-down [search] for weapons."
At approximately 1:15 p.m. that day, Redd saw Lionel W., who was wearing "baggy," "oversized" clothing like that worn by young male gang members, riding a motorized "minibike" on the sidewalk. Because it is a violation of the Vehicle Code to drive a motorized bike on the sidewalk, Redd decided to stop Lionel W. After Lionel W. stepped off the minibike, Redd conducted a "pat-down search for weapons." During the search, Redd felt "several small items in [Lionel W.s] pocket that were consistent with the packaging of rock cocaine." When the officer asked Lionel W. what he had in his pockets, Lionel W. responded, "`These arent my pants. " When Redd then asked if he could remove the items from Lionel W.s pockets, Lionel W. said, " `Yeah. Go ahead. " Redd then pulled from Lionel W.s pocket two small, off-white rocks resembling rock cocaine wrapped in plastic. From a coin or watch pocket, Redd pulled out "additional . . . rock cocaine."
Jane Villegas is a criminalist for the Los Angeles Police Department assigned to the Scientific Investigations Bureau. She examined the off-white rocks retrieved from Lionel W.s pockets and determined they weighed 0.27 grams and contained cocaine base.
b. Defense evidence.
Lionel W.s mother, Cheapella Sasser (Sasser) testified that on January 29, 2007, she lived on Figueroa Street, between 51st and 52nd Streets, with her five children, including Lionel W., and her nephew, Deonte V. Deonte V., Lionel W. and a third child shared a room.
Sasser was aware of the fact that Deonte V. had a "drug problem" and that he used rock cocaine. Sasser was also aware of the fact that Lionel W. and Deonte V. wore each others clothes. The jeans and T-shirt Lionel W. was wearing on January 29, 2007 belonged to Deonte V.
Lionel W. testified that Officer Redd never asked him for permission to remove anything from the pockets of his pants. The officer pulled the cocaine from Lionel W.s pockets and asked Lionel W., " `Whats this? " Lionel W. responded, " `I dont know. Th[ese] arent my pants. " Lionel W. believed the drugs found in the pants belonged to his cousin, Deonte V. Lionel W. stated he does not use crack cocaine.
2. Procedural history.
On July 13, 2007, a petition was filed pursuant to section 602 alleging that on or about January 29, 2007, Lionel W., a 17-year-old youth, possessed a controlled substance, cocaine, in violation of Health and Safety Code section 11350, subdivision (a).
At proceedings held on September 14, 2007, Lionel W. made a motion to suppress evidence pursuant to section 700.1. Following a hearing on the matter, the trial court denied the motion.
The adjudicatory hearing was held the same day. Following the presentation of evidence, the juvenile court concluded beyond a reasonable doubt that Lionel W. was in possession of cocaine and, accordingly, was a person described by section 602. Lionel W. was placed at home on probation and granted deferred entry of judgment pursuant to section 790. The trial court indicated deferred entry of judgment was appropriate in that Lionel W. was 17 years old, this was "his first charge" and the amount of narcotics possessed was small.
Section 790 provides in relevant part: "(a) Notwithstanding Section 654 or 654.2, or any other provision of law, 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 minors 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 . . . . [¶] (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 deferred entry of judgment, 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 deferred entry of judgment and would benefit from education, treatment, and rehabilitation efforts, the court may grant deferred entry of judgment. . . . The court shall make findings on the record that a minor is appropriate for deferred entry of judgment pursuant to this article in any case where deferred entry of judgment is granted."
Lionel W. filed a timely notice of appeal on September 17, 2007.
This court appointed counsel to represent Lionel W. on appeal on December 19, 2007.
CONTENTIONS
After examination of the record, counsel noted that entry of judgment had been deferred pursuant to section 790. That statute, and the others which provide for such a procedure, "confirm that far from constituting an adjudication of the issues raised by the petition, the order of deferral abates the adjudicatory process in the hope that the minor will comply with the probationary conditions and thereby avoid a judgment altogether. If that occurs, the record of the proceeding will be sealed for all purposes . . . . If the minor fails to satisfactorily comply, the court will [then] enter judgment and make a dispositional order. In the latter instance, . . ., a `judgment will exist from which an appeal will lie. . . . [H]owever, [when judgment is deferred,] there simply is no judgment from which to appeal." (In re Mario C. (2004) 124 Cal.App.4th 1303, 1308, italics in original.) Since there is no judgment from which an appeal may be taken, the appeal must be dismissed. (Id. at p. 1307.)
Counsels opening brief raised no additional issues and requested this court to conduct an independent review of the record.
By notice filed February 19, 2008, the clerk of this court advised Lionel W. to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.
APPELLATE REVIEW
We have examined the entire record and are satisfied counsel has fully complied with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The appeal is dismissed.
We concur:
KITCHING, J.
ALDRICH, J.