Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County No. TJ16707, Catherine J. Pratt, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.).
Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Sharlene A. Honnaka, Deputy Attorneys General, for Plaintiff and Respondent.
CROSKEY, Acting P. J.
On July 13, 2007, a petition filed pursuant to Welfare and Institutions Code section 602 alleged L.W. possessed cocaine in violation of Health and Safety Code section 11350, subdivision (a). Following a contested adjudicatory hearing during which the allegation was found to be true, L.W. was placed on probation and granted deferred entry of judgment pursuant to section 790. On January 16, 2008, the juvenile court determined the deferred entry of judgment had been improper. Accordingly, the juvenile court revoked the order deferring entry of judgment and ordered L.W. at home on probation as a ward of the court. We reverse the order of wardship and remand the matter to the juvenile court for further proceedings.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
The facts have been taken from the transcript of proceedings in case No. B202489. On June 10, 2008, this court granted L.W.’s motion to take judicial notice of the record in that matter. (Evid. Code, § 452, subd. (d).)
a. The Prosecution’s Case
On January 29, 2007, Los Angeles Police Officer David 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 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 “patdown [search] for weapons.”
At approximately 1:15 p.m. that day, Redd saw L.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 L.W. After L.W. stepped off the minibike, Redd conducted a “pat-down search for weapons.” During the search, Redd felt “several small items in [L.W.’s] pocket that were consistent with the packaging of rock cocaine.” When the officer asked L.W. what he had in his pockets, L.W. responded, “ ‘These aren’t my pants.’ ” When Redd then asked if he could remove the items from L.W.’s pockets, L.W. told the officer, “ ‘Yeah. Go ahead.’ ” Redd then pulled from L.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 L.W.’s pockets and determined they weighed 0.27 grams and contained cocaine base.
b. Defense Evidence
L.W.’s mother, C.S., testified that on January 29, 2007, she lived with her five children and her nephew, D.V., on Figueroa Street between 51st and 52nd Streets. D.V., L.W. and a third child shared a room.
C.S. was aware of the fact that D.V. had a “drug problem” and that he used rock cocaine. C.S. was also aware of the fact that L.W. and D.V. wore each others clothes. The jeans and T-shirt L.W. was wearing on January 29, 2007 belonged to D.V.
L.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 L.W.’s pockets and asked L.W., “ ‘What’s this?’ ” L.W. responded, “ ‘I don’t know. Th[ese] aren’t my pants.’ ” L.W. believed the drugs found in the pants belonged to his cousin, D.V. L.W. stated he does not use crack cocaine.
2. Procedural History
On March 27, 2007, the Los Angeles County District Attorney’s Office prepared a form indicating L.W. was eligible for deferred entry of judgment (DEJ).
On July 13, 2007, a petition was filed pursuant to section 602 alleging that on or about January 29, 2007, L.W., a 17-year-old youth, possessed a controlled substance, cocaine, in violation of Health and Safety Code section 11350, subdivision (a). L.W. denied the allegation.
At proceedings held on September 14, 2007, L.W. made a motion to suppress evidence pursuant to section 700.1. Following a hearing on the matter, the juvenile court denied the motion.
The adjudicatory hearing was also held on September 14, 2007. Following the presentation of evidence, the juvenile court concluded beyond a reasonable doubt that L.W. had been in possession of cocaine. L.W. was placed at home on probation and granted DEJ pursuant to section 790. The trial court indicated DEJ was appropriate in that L.W. was 17 years old, this was “his first charge” and the amount of narcotics possessed was small.
However, at a hearing held on January 16, 2008, the juvenile court determined DEJ had been improper. The juvenile court vacated its order granting DEJ, declared L.W. a ward of the court and ordered him home on probation.
L.W. filed a timely notice of appeal.
CONTENTIONS
L.W. contends: (1) the juvenile court erred when it denied his motion to suppress evidence; and (2) the juvenile court erred when it vacated its order granting him DEJ.
DISCUSSION
1. The Juvenile Court Properly Denied L.W.’s Motion to Suppress Evidence
L.W. asserts the “patdown” performed by Officer Redd was improper and the cocaine found as a result of the search should have been suppressed.
“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; People v. Leyba (1981) 29 Cal.3d 591, 596-597.)
“The United States Supreme Court has held a police officer may only conduct a patdown if ‘criminal activity may be afoot and . . . the person with whom he is dealing may be armed and presently dangerous.’ [Citation.] ‘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.] . . . [D]ue weight must be given, not to his inchoate and unparticularized suspicion or “hunch,” but to the specific and reasonable inferences which he is entitled to draw from the facts in light of his experience. [Citation.]’ [Citations.]” (In re Frank V. (1991) 233 Cal.ApP.3d 1232, 1240.) “A police officer’s expertise can attach criminal import to otherwise innocent facts.” (People v. Limon (1993) 17 Cal.App.4th 524, 532.) Moreover, evidence that an area is one of high gang activity may be considered “if it is relevant to an officer’s belief the detainee is armed and dangerous. While this factor alone may not justify a weapon search, combined with additional factors it may.” (People v. King (1989) 216 Cal.App.3d 1237, 1241.)
Here, Officer Redd was aware of the fact that the area in which he stopped L.W. was a “gang area” occupied by the “Five Deuce Hoovers.” Redd indicated that officers who patrol the area are generally concerned that persons, especially those wearing “baggy,” “oversized” clothing, are gang members carrying concealed weapons. L.W., who was unlawfully riding a motorized bike on the sidewalk, was wearing a T-shirt that was “five sizes too big” and “pants big enough to fit . . . an adult of large stature.” Given these “additional factors,” the officer was justified in conducting a pat down for weapons.
With regard to the cocaine discovered in L.W.’s pocket, “if contraband is found while performing a permissible [pat-down] search, the officer cannot be expected to ignore that contraband.” (People v. Avila (1997) 58 Cal.App.4th 1069, 1075.) Officer Redd testified he was familiar with rock cocaine. He stated he had testified approximately 50 times as an expert in the “usage, packaging, sales and consumption of [rock] cocaine.” In addition, he had received 40 hours of academy training, received more training by working with more experienced officers and had “worked with [the] South Bureau undercover buy team where they purchase rock cocaine and various narcotics . . . .” Redd had made approximately 400 arrests for the unlawful possession of cocaine. Given this expertise, Redd “immediately recognized” the items in L.W.’s pockets as pieces of rock cocaine and could legitimately retrieve them.
In addition, it could be concluded Redd obtained L.W.’s consent to reach into his pockets and pull out the contraband. We note the People have the “burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.] The voluntariness of the consent is in every case ‘a question of fact to be determined in the light of all the circumstances.’ [Citations.]” (People v. James (1977) 19 Cal.3d 99, 106, fn. omitted.) Here, L.W.’s response to the officer’s request to remove the contents of his pockets was almost cavalier. When Officer Redd asked L.W. if he could remove the items, L.W. told the officer, “ ‘Yeah. Go ahead.’ ” Under these circumstances, we conclude substantial evidence supports a finding L.W. voluntarily consented to the search of his pockets. (Id. at p. 107.)
Viewing the record as a whole, Officer Redd not only subjectively believed L.W. might be armed, his belief was objectively reasonable. “ ‘[T]he facts [are] such as would cause any reasonable police officer in a like position, drawing . . . on his training and experience [citation], to suspect [L.W. was carrying a concealed weapon].’ ” (People v. Leyba, supra, 29 Cal.3d at p. 597.) The juvenile court properly denied L.W.’s motion to suppress evidence.
2. The Order of Wardship Must Be Reversed and the Matter Remanded to Allow the Juvenile Court to Properly Consider Whether L.W. Should Be Granted Deferred Entry of Judgment.
L.W. asserts the case must be remanded to the juvenile court to allow the court to exercise its discretion to vacate its September 14, 2007 order declaring him a ward of the court and to order instead that entry of judgment be deferred.
(a) Background.
On March 27, 2007, the Los Angeles County District Attorney’s Office prepared a form indicating L.W. was eligible for DEJ pursuant to section 790. The notice indicated that at a “hearing the court [would] consider whether or not to grant a Deferred Entry of [J]udgment.” Attached to the form is an explanation of the requirements, benefits, and consequences of a DEJ, including that, in lieu of adjudicatory proceedings, the youth must “admit that [he] committed the offense or offenses alleged to have been committed.” It is, however, clear that the form was neither provided to defense counsel nor filed in the juvenile court. Although the form appears in the clerk’s transcript immediately after the petition, it bears no stamp to show it was filed with the court and sets no special hearing for consideration of the question whether L.W. should be granted DEJ. On the second page of the form, it simply states that “[a]t the hearing the court will consider whether or not to grant a Deferred Entry of [J]udgment.”
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 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 . . . . [¶] (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.”
A motion to suppress evidence and a contested adjudicatory hearing were held on September 14, 2007. After denying the motion to suppress and finding L.W. committed the alleged offense of possession of cocaine, the trial court placed L.W. at home on probation and granted DEJ pursuant to section 790.
Then, at proceedings held on January 16, 2008, the juvenile court indicated it believed the granting of DEJ had been improper. The prosecutor agreed, stating, “It actually provides in section 790 . . . that it is a prosecutorial offer that can be made before trial. So I think it was invalid for two reasons: [¶] One, it was done after the petition was sustained; [¶] And number 2, it was done after the People’s objection.”
The juvenile court noted that section 790 must be read in conjunction with section 791, which, the juvenile court indicated, “makes it clear that [DEJ] is something that is to be recommended by the prosecuting attorney. [¶] . . . [¶] . . . [T]here’s to be a motion by the prosecutor.” Here, the juvenile court had “issued 790 status over the People’s objection.” In addition, in order to obtain section 790 DEJ, the defendant must admit the allegations against him. DEJ status is not available after a contested adjudicatory hearing.
Section 791 provides in relevant part: “(a) The prosecuting attorney’s written notification to the minor shall also include all of the following: [¶] (1) A full description of the procedures for deferred entry of judgment. [¶] (2) A general explanation of the roles and authorities of the probation department, the prosecuting attorney, the program, and the court in that process. [¶] (3) A clear statement that, in lieu of jurisdictional and disposition hearings, the court may grant a deferred entry of judgment with respect to any offense charged in the petition, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment, and that upon the successful completion of the terms of probation, as defined in Section 794, the positive recommendation of the probation department, and the motion of the prosecuting attorney, but no sooner tha[n] 12 months and no later than 36 months from the date of the minor’s referral to the program, the court shall dismiss the charge or charges against the minor.”
California Rules of Court, rule 5.800 is in accord. The rule provides in relevant part: “A child 14 years or older who is the subject of a petition under section 602 alleging violation of at least one felony offense may be considered for a deferred entry of judgment if all of the following apply: [¶] (1) The child is 14 years or older at the time of the hearing on the application for deferred entry of judgment; [¶] (2) The offense alleged is not listed in section 707(b); [¶] (3) The child has not been previously declared a ward of the court based on the commission of a felony offense; [¶] (4) The child has not been previously committed to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice; [¶] (5) If the child is presently or was previously a ward of the court, probation has not been revoked before completion; and [¶] (6) The child meets the eligibility standards stated in Penal Code section 1203.06. [¶] (b) Procedures for consideration (§ 790). [¶] 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 (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.” (Italics & bold in original.)
The People, L.W. and the juvenile court agreed that, since L.W. had a full adjudicatory hearing he would, under most circumstances, be ineligible for DEJ. However, here the juvenile court was acting under the mistaken notion that such a disposition must be approved by the People. As the juvenile court stated, “If I recall correctly, I had issued 790 status over the People’s objection.” The court continued, “I’m trying to think of how it can get resolved. [¶] Given the fact that it was a mistake of the court and perhaps a mistake of defense counsel that may have inured to [L.W.’s] detriment, all I can think of doing is vacating the adjudicatory findings and giving him that opportunity. [¶] But if we do that, I don’t know that we’re in any different position because it’s then up to the People to decide whether or not they want to renew their 790 offer. I don’t know what their position is going to be, but my guess is that they’re going to say they don’t, at which point we’re right back in the same situation we’re in now.”
The prosecutor agreed with the trial court and stated, “I don’t think 790 is appropriate on this case, and I never thought it was appropriate on this case. [¶] I can’t do that. [¶] I think home on probation was always appropriate. [¶] . . . I think given that he had a trial, had his rights protected, I don’t think that’s the case here. I think proceeding to disposition is fully appropriate.” In response, the trial court stated, “While this may have been detrimental to him, I don’t know that anything that [L.W.] has a legal right to expect has been deprived him. [¶] [Section] 790 is a special program, and it’s in the discretion of the district attorney’s office.”
L.W.’s counsel then entered the discussion. She indicated that, during proceedings held on September 12, 2007, the prosecutor “did offer 790.” Counsel indicated that, had L.W. known that he would be ineligible for section 790, he would not have insisted on adjudicating the matter and would have admitted the allegation he possessed cocaine. Counsel continued, “But he was told it was a possibility. He was told by me the court could give him 790 after trial. [¶] . . . [¶] . . . I think that’s where his detriment comes in . . . .”
The juvenile court disagreed, stating, “Again, it comes down to whether his rights have been infringed. I don’t think that’s the case.” The juvenile court then declared L.W. a ward of the court, “revok[ed] the 790” and placed L.W. at home on probation.
(b) Discussion.
“Sections 790 through 795 . . . were enacted by initiative as part of Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998. This measure was approved by voters at the March 2000 election. The new statute provides 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. [Citations.]’ [Citation.]” (In re V.B. (2006) 141 Cal.App.4th 899, 903-904; In re Luis B. (2006) 142 Cal.App.4th 1117, 1121-1122.)
“More specifically, section 790, subdivisions (a) and (b) provide that where . . . a minor is alleged in a section 602 petition to have committed a felony offense, the prosecutor must review the file to determine whether the minor meets the qualifications for the DEJ. (§ 790, subds. (a), (b).) The minor is eligible for the DEJ 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.’ (§ 790, subd. (a).)” (In re Usef S. (2008) 160 Cal.App.4th 276, 283, italics added.)
Nowhere in section 790 et seq. or the California Rules of Court, rule 5.800 does it state that whether DEJ is granted is within the discretion of the prosecutor. In fact, as stated above, the prosecutor’s primary role in such proceedings is to “review the child’s file to determine if the requirements [for DEJ] are met.” (Cal. Rules of Court, rule 5.800(b).) Once it is determined a child is eligible for DEJ, it is strictly within the juvenile court’s discretion to grant or deny DEJ. California Rules of Court, rule 5.800(b)(1) provides that “[i]f 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.” Rule 5.800(b)(2) provides in relevant part: “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.” (Italics added.)
It is undisputed that L.W. was eligible for DEJ. It is also clear that defense counsel and the juvenile court were unaware of the fact that, in order to take advantage of DEJ, it was necessary for L.W. to admit the allegation he possessed cocaine.
Here, the form filled out by the prosecutor indicating L.W. is eligible for DEJ and setting forth the relevant procedural requirements for such a proceeding bears no stamp indicating it was filed in the juvenile court and, based on the comments by the juvenile court and defense counsel, it is apparent neither received copies of the document. (Cf. In re Usef S., supra, 160 Cal.App.4th at p. 283 [It was undisputed that the prosecutor, consistent with his duties under section 790, subdivision (b), “provided written notice to appellant and the juvenile court” that the defendant was eligible for DEJ]; accord In re Sergio R. (2003) 106 Cal.App.4th 597, 604 [“The written notification sent to the eligible minor must include: ‘A clear statement that, in lieu of jurisdictional and disposition hearings, the court may grant a deferred entry of judgment with respect to any offense charged in the petition, provided that the minor admits each allegation contained in the petition and waives time for the pronouncement of judgment . . . .’ [Citation.]” (Italics omitted.)].)
Under the statute, it is “the prosecutor [who] must review the file to determine whether the minor meets the qualifications for the DEJ.” (In re Usef F., supra, 160 Cal.App.4th at p. 283.) However, once eligibility is established, it is the juvenile court which determines “that [the minor] is suitable for the DEJ.” (Ibid.; See In re Luis B., supra, 142 Cal.App.4th at p. 1123 [“The trial court then has the ultimate discretion to rule on the suitability of the minor for DEJ after consideration of the factors specified in [rule 5.800] and section 791, subdivision (b) . . .”].)
Given the trial court’s misunderstanding of the provisions of the DEJ statute, it cannot be concluded that L.W.’s “rights have [not] been infringed.” Although the juvenile court was aware of the fact L.W. was eligible for DEJ, it was clearly unaware of the fact that, in order to take advantage of a grant of DEJ, L.W. was required to admit the allegation he possessed cocaine and agree to postpone final determination of his case. Because the error was prejudicial, the order of wardship must be reversed and the matter remanded to the trial court for its determination, after considering all the relevant criteria, whether L.W. should be granted DEJ.
DISPOSITION
The order of wardship is reversed. The matter is remanded to the juvenile court for exercise of its discretion to determine, in view of the requirements set forth in Welfare and Institutions Code section 790 et seq. and California Rules of Court, rule 5.800, whether L.W. should be granted deferred entry of judgment. Should the juvenile court, in its discretion, determine that deferred entry of judgment should not be granted, the order of wardship is to be reinstated.
We concur: KITCHING, J., ALDRICH, J.