NOT TO BE PUBLISHED IN OFFICIAL REPORTS IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

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1 Filed 4/11/08 In re Mario W. CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule (a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule (b). This opinion has not been certified for publication or ordered published for purposes of rule IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE In re MARIO W., a Person Coming Under the Juvenile Court Law. THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, v. MARIO W., Defendant and Appellant. A (San Francisco County Super. Ct. No. JW ) Mario W. appeals a dispositional order of the San Francisco County Superior Court, Juvenile Division, and challenges as well that court s underlying jurisdictional order which continued him as a ward of the court pursuant to Welfare and Institutions Code section He claims the court made several errors requiring reversal. Specifically, he objects to the following: the court s denial of his motion to suppress evidence under section 701.1; its ruling that found true his commission of an offense in violation of Penal Code section 12025, subdivision (b)(2); its ruling that found true his commission of an offense in violation of Penal Code section 12101, subdivision (a)(1), without expressly declaring whether that offense was a misdemeanor or felony; its failure 1 Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

2 to state the basis for its calculation of his maximum period of physical confinement; and its denial of his motion to dismiss the underlying petition because the dispositional hearing was untimely under section 702. We affirm the dispositional order but remand for further proceedings as discussed below. BACKGROUND Appellant was adjudged a ward of the juvenile court of San Mateo County in June 2005 after that court found he had committed felony second degree robbery. (Pen. Code, 212.5, subd. (c).) His probation terms included 90 days of therapeutic detention, after which he was committed to his mother s custody. The San Mateo court transferred jurisdiction and supervision to the juvenile court of San Francisco, where appellant lived. The latter court accepted the transfer in July Appellant initially did well with the terms of his probation. He was arrested, however, in San Francisco in late January 2006, and his probation officer filed a second petition based on the events underlying that arrest. The San Francisco Juvenile Court sustained one count of this petition in February that is, felony possession by a minor of a concealable firearm. (Pen. Code, 12101, subd. (a)(1).) The court s ultimate disposition was to commit appellant to the Mary s Help group home in Solano County on March 27, On May 5, 2006, appellant went AWOL from this placement. He was arrested on a bench warrant on September 17, and detained in the San Francisco juvenile hall. On October 18 appellant was released for commitment to a second out-of-home placement, the Bridge to Success group home in Stanislaus County, from which he went AWOL on November 29. Appellant was arrested again, in San Francisco, on January 23, 2007, and was again detained in juvenile hall. The events resulting in this arrest led his probation officer to file a third petition consisting of two counts. Count 1 charged appellant, once again, with felony possession by a minor of a concealable firearm. (Pen. Code, 12101, subd. (a)(1).) Count 2 alleged a second felony violation carrying a concealed firearm 2

3 within a vehicle while knowing, or having reason to know, that the firearm was stolen. (See Pen. Code, 12025, subd. (b)(2).) At a pretrial conference on February 5, 2007, appellant s trial counsel made an oral motion to suppress evidence under section In his written motion filed a few days later, appellant argued he had been illegally detained while sitting in the passenger seat of a parked vehicle. He sought, among other things, to suppress the firearm found under his passenger seat during a search of the vehicle conducted shortly after his detention. After a hearing on February 16, the juvenile court denied his motion. The court then conducted the jurisdictional hearing and found both count 1 and count 2 to be true, as amended. As to count 2, the court s amendment struck the language alleging that appellant knew or had reasonable cause to know that the firearm was stolen. In mid-march 2007, the probation officer filed her report for the dispositional hearing. Because of appellant s two prior failed placements and the serious nature of the sustained offenses, she recommended that the juvenile court commit appellant to the California Youth Authority now known as the Division of Juvenile Justice (DJJ). Appellant, also in mid-march, filed a motion to dismiss the petition on the ground that the dispositional hearing had been delayed beyond the applicable deadline set out in section 702. The court denied that motion following a hearing on March 15. Appellant filed another motion on March 26, 2007, seeking reconsideration of the juvenile court s finding that found count 2 of the petition was true. He argued there could be no violation under Penal Code section 12025, subdivision (b)(2), because no evidence had been presented at the jurisdictional hearing to show that he knew or reasonably should have known the concealable firearm had been stolen. Alternately he requested, pursuant to Penal Code section 654, that count 2 not be used in calculating his maximum period of physical confinement. On April 23, 2007, the juvenile court denied appellant s motion to reconsider its finding as to count 2, but granted his request under Penal Code section 654. The court then set appellant s maximum period of physical confinement at six years four months, 3

4 and directed that he be committed to an out-of-home placement in Sierra Ridge Rite of Passage school in Calaveras County. This appeal followed. ( 800, subd. (a).) DISCUSSION A. The Motion to Suppress Under Section At the hearing on appellant s motion to suppress, the prosecution called two San Francisco police officers, Vargas and Stancombe. Their testimony indicates that the two were on bicycle patrol on January 23, At about 10:40 a.m. they were riding down Lexington Street near its intersection with 19th Street, in the Mission District. Vargas heard loud music as they passed a parked vehicle and, looking back, saw that it was occupied by two individuals, sitting low so that he could see only their faces and heads. Vargas told Stancombe he wanted to investigate. As they pedaled back toward the vehicle, Vargas, on the street, approached the driver side of the vehicle while Stancombe approached the passenger side from the sidewalk. As they neared the vehicle the driver exited and walked to the sidewalk. He stood about three feet away from Stancombe, and the two had a brief conversation, after which Stancombe observed aloud that the driver smelled of marijuana. Vargas testified that he realized, at that point, that this [might] turn into a narcotics investigation, specifically the use of marijuana. Vargas then approached the driver door of the vehicle and observed appellant in the passenger seat with his hands beneath the seat. Vargas told appellant to show his hands, but appellant kept them under the seat, stuff[ing them] even further down. Vargas opened the driver door and again instructed appellant to show his hands and get out of the vehicle. As he did so he detected a very strong pungent odor of marijuana coming from inside the vehicle. As appellant still did not comply with Vargas s instructions, the latter moved around to the passenger door, alerting Stancombe that appellant was attempting to conceal something under his seat. Vargas then opened the passenger door and again ordered appellant, who still had his hands under the seat, to get out of the vehicle. Appellant finally exited the vehicle, at which time Vargas told Stancombe to cuff the driver while he proceed[ed] to cuff appellant. Vargas testified that, based on his experience as an officer, including an assignment to the narcotics division, it was 4

5 very common for people that are involved in either narcotics trafficking or usage to use weapons. His decision to handcuff the two occupants of the vehicle was based on his belief that appellant had hidden some sort of contraband... either narcotics or a weapon under the passenger seat, and he thought it best to restrain the two before conducting a search. As Vargas attempted to handcuff appellant, the latter broke free of the officer s one-handed grasp and ran down the street. Vargas gave chase, alerting other units. He captured appellant inside a hardware store some two blocks away, and took him into custody for resisting arrest. As soon as other officers arrived to transport appellant to the station, Vargas returned to the vehicle. Other officers arrived to transport the driver, after which Stancombe searched under the passenger seat with Vargas looking on. There he found a handgun and a pair of gloves. Appellant argues that, given this evidence, the officers conducted an illegal detention. He reasons there was no basis for the officers initial decision to investigate the two occupants of the legally parked vehicle. Because the officers surrounded the occupants by approaching the vehicle on either side, they effectively initiated a detention from that moment, when they still had no specific, articulable facts to provide some objective manifestation indicating that the occupants might be involved in criminal activity. Hence he claims the juvenile court erred in denying his motion to suppress the handgun found after his illegal seizure. Appellant s trial counsel presented no evidence to refute the officers testimony, hence the facts summarized above are essentially undisputed. We review them independently to determine whether or not the seizure in this case was reasonable under Fourth Amendment. (People v. Leyba (1981) 29 Cal.3d 591, , superseded by statute on other grounds as stated in People v. Trujillo (1990) 217 Cal.App.3d 1219, 1223.) A person is seized or detained by the police when the officer, by means of physical force or show of authority, terminates or restrains that person s freedom of movement. (Brendlin v. California (2007) U.S., 127 S.Ct. 2400, 2405.) There is no seizure without the person s actual submission. (Ibid.) When the police action does not show an 5

6 unambiguous intent to restrain, a seizure nevertheless occurs if, under all the circumstances, a reasonable person would have believed that he or she was not free to leave, or to decline the officer s requests or otherwise terminate the encounter. (Ibid.) Vargas testified that the initial issue was loud music. We deem this to be a reasonable basis for his decision to turn and approach the vehicle. The playing of loud music does not rise to the level of criminal activity, but it was reason enough for the officers to initiate an encounter with the occupants of the parked vehicle. 2 The mere fact that Vargas and Stancombe approached the parked vehicle on bicycles does not constitute a show of authority that would lead a reasonable person to believe that he or she could not leave or decline to engage in an encounter. They activated no lights or sirens, having none, and uttered no restraining command. We reject the notion that the officers effectively blocked the movement of the vehicle or its occupants merely by approaching the vehicle on either side on their bicycles. (Cf. In re Kamonte (1990) 223 Cal.App.3d 1507, ) Neither, for example, took any action to restrain the driver when he voluntarily exited the vehicle. Stancombe s ensuing conversation with the driver has every appearance of a consensual encounter. It was only after this conversation, when Stancombe said aloud that the driver smelled like marijuana, that Vargas turned his focus... towards the passenger of the vehicle. Vargas then looked through the driver side window, saw appellant with his hands beneath his seat, opened the driver door, and smelled the odor of marijuana coming from the car. It was only after this that he first ordered appellant to show his hands and exit the vehicle. Even then, appellant did not submit to Vargas s commands. He submitted only after Vargas circled the vehicle, opened the passenger door, and ordered appellant for the third time to show his hands and exit. In our view the officers did not detain appellant until he actually submitted to Vargas s repeated commands. (Brendlin v. California, supra, 127 S.Ct. at p ) By 2 Counties and municipalities typically enact ordinances prohibiting excessive noise. We take judicial notice of the fact that San Francisco is no exception. (Evid. Code, 452, subd. (b); 459, subd. (a); see S. F. Police Code, art. 1, 49.) 6

7 this time Vargas was able to articulate specific facts indicating appellant s possible involvement in illegal activity the use of marijuana. We therefore conclude that appellant s detention or seizure was reasonable under the Fourth Amendment, and the juvenile court did not err in denying his motion to suppress. B. The Finding Sustaining Count 2 as Amended Appellant contends the juvenile court erred in sustaining count 2 as true. He reasons that count 2 alleged a violation of Penal Code section 12025, subdivision (b)(2), yet that subdivision does not set out a substantive offense but provides only that a conviction for carrying a concealed firearm is punishable as a felony when the firearm [was] stolen and [the defendant] knew or had reasonable cause to believe... it was stolen. (Pen. Code, 12025, subd. (b)(2).) Appellant also urges that, once the court struck the language in count 2 that alleged he knew or should have known the firearm was stolen, the amended count effectively charged him only with carrying a concealed firearm within a vehicle, a charge that in his case could only have been misdemeanor. (See Pen. Code, 12025, subd. (b)(7).) He suggests his constitutional due process rights were violated because count 2 did not properly reference the provision that sets out this substantive offense but instead incorrectly referred to Penal Code section 12025, subdivision (b)(2). If we exclude the language that the juvenile court struck from count 2 at the jurisdictional hearing, the remaining substantive language charges that appellant did willfully and unlawfully carry concealed within a vehicle which was then and there under his/her control and direction, a firearm capable of being concealed upon the person. This language essentially states the substantive offense set out section Penal Code section 12025, subdivision (a)(1). It is this substantive language, and not the statutory reference, that controls, and the incorrect statutory reference to Penal Code section 12025, subdivision (b)(2) does not necessarily render the accusatory pleading fatally defective. (See People. v. Thomas (1987) 43 Cal.3d 818, 826.) There is no indication whatever that defendant was misled by the incorrect statutory reference in derogation of his constitutional due process rights. 7

8 The prosecution concedes that the evidence presented was at variance with a charge under Penal Code section 12025, subdivision (a)(1), because appellant was an occupant of the vehicle, not the person who had control and direction of the vehicle. But appellant concedes in turn that the evidence could have supported a true finding as to a violation of Penal Code section 12025, subdivision (a)(3) the provision that sets out the substantive offence of carrying a concealed firearm within a vehicle by an occupant. Thus it does not appear appellant was misled or otherwise suffered prejudice from this slight variance. 3 (See In re Michael D. (2002) 100 Cal.App.4th 115, 127.) The juvenile court, by amending count 2 and then sustaining it on the basis of the evidence presented, found in effect that appellant had violated Penal Code section 12025, subdivision (a)(3) that is, he had concealed within a vehicle in which he was an occupant a firearm capable of being concealed. There was substantial evidence to support this implicit finding. (See In re Michael D., supra, 100 Cal.App.4th at p. 127.) We conclude that the incorrect statutory reference to Penal Code section 12025, subdivision (b)(2), in amended count 2, as well as the slight variance between that amended count and the evidence, was harmless error. We note, however, that the prosecution agrees with appellant s suggestion that a true finding of a violation of Penal Code section 12025, subdivision (a)(3), is necessarily a misdemeanor and not a felony. We will therefore direct the juvenile court to modify its jurisdictional finding as to count 2 accordingly. C. The Failure to Fix Count 1 as Misdemeanor or Felony Count 1 charged appellant with a violation of Penal Code section 12101, subdivision (a)(1). As this was appellant s second such offense, it was punishable either as a felony or a misdemeanor. (Pen. Code, 12101, subd. (c)(1)(a).) Thus the juvenile court, in finding count 1 true, was required to declare the offense to be a misdemeanor 3 This appears particularly so in light of the juvenile court s grant of his request pursuant to Penal Code section 654, to stay any addition to his maximum period of physical confinement based on the offense set out in count 2. 8

9 or felony. ( 702.) Appellant claims the court failed to do this, and requests that we remand the matter so that it may do so. In assessing this claim, the key issue we address is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.) In this case the minute order for the jurisdictional hearing includes a clerk notation indicating that the juvenile court found true count 1 as corrected,[ 4 ] 12101(a)(1) PC, as a felony. A similar notation is included in the minute order for the dispositional hearing. However, the petition setting out count 1 merely describes the offense as a felony. There is no indication that the probation officer ever apprised the court that it had the discretion to declare the offense to be a misdemeanor. Her report for the dispositional hearing, for example, again described the offense only as a Felony. There is no indication in the transcript for the jurisdictional hearing that counsel for the parties ever so apprised the court. Finally, the court itself made no express declaration or other comment indicating that it was aware of this discretion. There is, in sum, no indication in the record as a whole that the juvenile court knew it was vested with a discretion to declare the offense set out in count 1 to be a misdemeanor, and to state a misdemeanor-length confinement limit. We will therefore remand the matter. (See In re Manzy W., supra, 14 Cal.4th at p ) D. The Maximum Period of Physical Confinement When a juvenile court issues an order of wardship that removes a minor from the physical custody of his or her parent, it must specify the maximum period that the minor may be held in physical confinement. The period may not exceed the maximum term of imprisonment that could be imposed upon an adult convicted of the same offense or offenses that brought or continued the minor under the court s jurisdiction. ( 726, 4 At the request of appellant s trial counsel, the court struck language alleging that appellant had been in possession of a concealable firearm without the written permission of his parent and at a time when he was not accompanied by his parent. (See Pen. Code, 12101, subd. (a)(2)(a), (C).) 9

10 subd. (c).) In this case, the juvenile court set appellant s maximum period of physical confinement at six years four months. Appellant contends the juvenile court failed to articulate the basis for its calculation, and hence it is impossible to determine whether that calculation was a proper exercise of its discretion. We see no merit in this objection. The record shows it was appellant s own trial counsel who calculated the six-year, four-month period, based on an aggregation of appellant s prior offenses under Penal Code sections 212.5, subdivision (c), and 12101, subdivision (a)(1) with his current offense under Penal Code section 12101, subdivision (a)(1). The juvenile court simply accepted that calculation. If it failed to articulate the basis for the calculation, appellant is certainly in no position to complain he suffered any prejudice as a result. If, on remand, the juvenile court declares the current offense under Penal Code section 12101, subdivision (a)(1), to be a misdemeanor rather than a felony, it may then recalculate the maximum confinement period accordingly. E. The Motion to Dismiss Under Section 702 Following a jurisdictional hearing in which the juvenile court finds the minor to be a ward of the court under section 602, the court must proceed to hear evidence on the issue of disposition. It may continue the dispositional hearing for 10 judicial days if the minor is detained. ( 702.) In this case the court held its jurisdictional hearing on February 16, 2007, and its dispositional hearing on April 23. As we have noted, appellant filed a motion on March 13, 2007, seeking to dismiss the petition on the ground that the time limit for holding the dispositional hearing had lapsed. The juvenile court denied the motion two days later. Appellant contends, in effect, that the court erred in denying this motion. He goes so far as to urge that the court exceeded its jurisdiction by proceeding to hold the dispositional hearing on a date subsequent to that mandated by section 702. The decisions on which appellant relies are distinguishable. One, for example, involved a situation in which the court s continuance order was effectively a disposition 10

11 of in-home probation, which the court later terminated for an out-of-home placement in the guise of making an original disposition. (In re Willie T. (1977) 71 Cal.App.3d 345, ) Here there was a genuine continuance, necessary to await the probation officer s dispositional report, to set a contested hearing, and finally to await the results of attempts to find a placement for appellant less restrictive than the recommended DJJ placement. When the court ultimately held the dispositional hearing, its consequent order did not terminate probation and order a more restrictive placement, but rather released appellant from the county s juvenile hall for placement in the Sierra Ridge Rite of Passage school. Appellant s analogy to a dependency case is similarly inapposite, as that decision adverted to a former rule of court, not applicable here, which required dismissal under the circumstances. (Jeff M. v. Superior Court (1997) 56 Cal.App.4th 1238, ) Even then, the reviewing court did not dismiss the petition but remanded to the juvenile court with directions to complete the proceeding expeditiously. (Id. at pp ) Failure to comply with the time limits of section 702 is procedural, not jurisdictional, error, and we will not reverse the juvenile court s dispositional order in the absence of a miscarriage of justice. (In re Cindy E. (1978) 83 Cal.App.3d 393, 405.) Appellant has made no affirmative showing of prejudice, and we see none. Had the court held the dispositional hearing immediately upon receipt of the probation officer s dispositional report, it would in all likelihood have adopted the recommended disposition of a DJJ placement. The delay served only to secure for appellant a third opportunity to complete a much less restrictive placement. DISPOSITION The dispositional order of April 23, 2007, is affirmed. The case is remanded with directions to make an express declaration as to count 1, as to whether the offense therein found true is a misdemeanor or felony and to recalculate the maximum period of physical confinement if appropriate, and to modify the jurisdictional finding as to count 2 so as to declare the offense found true therein to be a misdemeanor. 11

12 STEIN, J. We concur: MARCHIANO, P. J. MARGULIES, J. 12