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People v. Edwin O. (In re Edwin O.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 19, 2012
B233783 (Cal. Ct. App. Jan. 19, 2012)

Opinion

B233783

01-19-2012

In re EDWIN O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. EDWIN O., Defendant and Appellant.

Holly Jackson, under appointment of the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Los Angeles County Super. Ct. No. VJ39081

APPEAL from a judgment of the Superior Court of Los Angeles County. Fumiko H. Wasserman, Judge. Affirmed as modified.

Holly Jackson, under appointment of the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Susan Sullivan Pithey and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court sustained a petition filed pursuant to Welfare and Institutions Code section 602 (section 602), alleging minor and appellant Edwin O. committed the crime of possession of tools to commit vandalism or graffiti (Pen. Code, § 594.2, subd. (a)). Appellant was placed home on probation. The juvenile court set a maximum term of confinement of one year and two months. On appeal, appellant argues the juvenile court erred in denying his motion to suppress evidence and in setting a maximum term of confinement. We modify the judgment and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 24, 2011, Downey police officer Eduardo Castro was on patrol in a marked patrol car when he saw appellant and two other people sitting near a wall. When the three saw Castro they "pace[d] back and forth." Castro pulled his patrol car over and parked around 10 feet away from the group. Castro got out of the patrol car, approached the group, and asked them if they had anything illegal on them. They said they did not. Castro asked if he could search them. All three agreed. At some point during this exchange, but before Castro began the searches, two other police officers arrived. Castro waited until the other two officers arrived to conduct the searches.

Before searching appellant, Castro asked if he could search appellant's pocket. Appellant agreed. In appellant's pocket, Castro found an approximately three and one half inch blade with an aluminum foil handle. Castro asked why appellant had the blade. Appellant said it was for his wood class. One of the officers called appellant's school to verify his explanation; the school reported appellant was enrolled in an art class, not a wood class. Appellant then told the officers he had the blade for art class. Castro asked appellant if he was from a "tagging crew." Appellant replied, "no, not until later." Castro then pulled appellant aside, told him to be honest, and asked the purpose of the blade. Appellant said it was a "scribe" but denied he belonged to a tagging crew. He admitted his tagging name was "Blazer."

In March 2011, the People filed a petition alleging appellant violated Penal Code section 594.2, subdivision (a), possession of tools to commit vandalism or graffiti. Appellant filed a motion to suppress evidence of the blade found in his pocket and his statements to Castro. Appellant argued the police had detained him without a reasonable suspicion or warrant. At a subsequent suppression hearing, Castro testified to the facts as described above. He indicated that when he got out of his patrol car he did not have a gun or other weapon out. He was on patrol alone. He did not use the patrol car's siren when he pulled over. He did not turn on the car's lights when he got out of the car. He did not have a flashlight out. He did not have his hand on his firearm. Castro did not tell appellant and his companions they were free to leave if they so chose. Castro explained how the other two officers assisted him: "What happens while I search one of the subjects, the other officers stay with the other guy to watch him. That's how we do our searches when we contact people."

The trial court denied appellant's suppression motion. Following a hearing, the court sustained the section 602 petition. Appellant admitted a probation violation and was placed home on probation. The juvenile court set a maximum term of confinement of one year, two months. Appellant timely appealed.

DISCUSSION

I. The Trial Court Did Not Err in Denying Appellant's Suppression Motion

Appellant contends the juvenile court erred in denying his suppression motion. We find no error. When reviewing a trial court's ruling on a motion to suppress, 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.' [Citation.]" (People v. Garry (2007) 156 Cal.App.4th 1100, 1106.)

Appellant argues Castro conducted an illegal detention when he approached appellant and asked to search him. As such, appellant asserts his consent was tainted by the illegality of the detention and was invalid, thus the court should have suppressed evidence of the blade found on his person and his statements to Castro. The People contend there was no detention, and the encounter between appellant and Castro was consensual. We agree there was no detention in this case.

In the juvenile delinquency case In re Manuel G. (1997) 16 Cal.4th 805, the California Supreme Court described the factors a court considers when determining whether an interaction between a person and the police is a consensual encounter or a detention. The court explained:

"Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty. . . . [¶] The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual's liberty, does a seizure occur. [Citations.] '[I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter.' [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled. [Citations.] The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.]" (Manuel G., at p. 821.)

In the case at bar, the totality of the circumstances indicated appellant's encounter with Castro was consensual rather than a detention. Castro's testimony was uncontradicted. He testified that he pulled his patrol car over when he saw appellant and the other two individuals. Although he was in uniform and in a marked patrol car, he did not have a weapon out when he got out of the car, he did not have his hand on his weapon, and he did not use the patrol car's siren or lights. He did not tell appellant to stop or issue any commands or directives. There was no evidence that Castro approached the group with any particular speed or aggressiveness. (Cf. Garry, supra, 156 Cal.App.4th at pp. 1111-1112 [detention where police officer bathed defendant in patrol car spotlight, then briskly walked toward him while asking about defendant's legal status].) He asked the group if they had anything illegal. There was no evidence that Castro posed the question in such a way that a reasonable person would have felt unable to refuse to answer, or to answer and leave. (People v. Bennett (1998) 68 Cal.App.4th 396, 402 [no detention where police officer approached defendant, asked to speak with him in a polite, conversational tone, asked if defendant was on parole, then asked if defendant would mind waiting in patrol car while officer ran a warrants check].)

Manuel G. is again instructive. In Manuel G., the police officer asked if he could speak with the minor and stated he wanted to ask about a shooting. The Manuel G. court indicated that "[a]pproaching the minor in a public place and asking him questions were not actions in themselves constituting coercive police conduct that would lead a reasonable person to believe that he or she was not free to leave. [Citation.]" (Manuel, supra, at p. 822.) While the officer's questions in Manuel G. may have been less direct than Castro's inquiry as to whether appellant or his companions had any contraband, we still find the Manuel G. court's reasoning applicable. Castro's questions did not in themselves constitute coercive police conduct.

The available evidence yielded few details about the police officers' interaction with appellant. It was not clear if the two additional police officers appeared on the scene before or after Castro asked for appellant's consent to be searched. (Cf. People v. Hughes (2002) 27 Cal.4th 287, 327 [no detention where police officer approached defendant and asked basic questions; officer's act of summoning another officer to participate in the conversation did not change the voluntary nature of the exchange].) But there was no evidence that the officers displayed their weapons, touched appellant prior to searching him, or used language indicating compliance with Castro's request might be compelled. (Manuel G., supra, 16 Cal.4th at p. 821.) Taken as a whole, the circumstances surrounding the encounter did not indicate Castro's conduct would have communicated to a reasonable person that he or she was not free to end the encounter or deny Castro's requests. (Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) Castro approached appellant relatively casually, asked questions, and did nothing that would create a reasonable inference that the interaction constituted a detention. The trial court properly denied appellant's suppression motion.

Appellant contends his consent to the search was invalid because it was procured during an illegal detention. He does not argue his consent was invalid for any other reason.

II. Maximum Term of Confinement

Although the juvenile court placed appellant home on probation, it also set a maximum term of confinement. This term of confinement had no legal effect. Welfare and Institutions Code section 726, subdivision (c) generally requires that the juvenile court specify a maximum term of confinement that cannot exceed the time of confinement allowable for an adult convicted of the same offense. But when a minor is not removed from the physical custody of his parents, section 726, subdivision (c) does not apply. (In re Matthew A. (2008) 165 Cal.App.4th 537, 541 (Matthew A.); In re Ali A. (2006) 139 Cal.App.4th 569, 573-574 (Ali A.).) The juvenile court's order setting a maximum term of confinement has no legal effect and was not authorized by statute. (Matthew A., at p. 541.)

In Matthew A., this court concluded juvenile courts that specify a term of confinement "may have the best of reasons, such as 'sending a message' to the juvenile that the transgression was serious. But if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice. We think it should cease." (Matthew A., supra, 165 Cal.App.4th at p. 541.) We therefore found striking the improper term of confinement was proper. The People cite Ali A. for the proposition that an improper designation of a maximum confinement term does not prejudice a minor and need not be stricken because it has no legal effect. However, striking the confinement term avoids the possibility that it might be used as a benchmark in future proceedings, and provides the appellant with an accurate dispositional order. As we explained in Matthew A., we believe the better practice is to strike the statutorily unjustified order setting a maximum term of confinement.

DISPOSITION

The June 13, 2011 judgment is modified as follows: The maximum term of confinement is stricken. As modified, the judgment is affirmed.

BIGELOW, P. J.

We concur:

RUBIN, J.

GRIMES, J.


Summaries of

People v. Edwin O. (In re Edwin O.)

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Jan 19, 2012
B233783 (Cal. Ct. App. Jan. 19, 2012)
Case details for

People v. Edwin O. (In re Edwin O.)

Case Details

Full title:In re EDWIN O., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Jan 19, 2012

Citations

B233783 (Cal. Ct. App. Jan. 19, 2012)