In re Lupe S.

Filed 3/27/07 In re Lupe S. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Following a contested jurisdictional hearing, the juvenile court sustained charges against Lupe S., a minor, of possession of a firearm (Pen. Code, 12021, subd. (d)), concealing a firearm upon the person (Pen. Code, 12025, subd. (a)(2)), and possession of a firearm capable of being concealed on the person (Pen. Code, 12101, subd. (a)(1)). The minors wardship was continued and he was ordered placed in the Rite of Passage program.

On appeal, the minor contends (1) the evidence was insufficient to support the sustaining of all three charges; (2) because his detention was unlawful, his admission to throwing away a knife should have been suppressed; (3) the juvenile court incorrectly calculated his maximum term of confinement; (4) remand is required for the juvenile court to declare the felony/misdemeanor character for a previously sustained charge of unlawful taking of a vehicle (Veh. Code,  10851, subd. (a)); and (5) the juvenile court erred by failing to make the discretionary determination of his maximum period of confinement as provided by Welfare and Institutions Code section 731, subdivision (b). Other than correcting the minors maximum period of confinement, we shall affirm the judgment.

FACTS

On August 10, 2005, around 3:20 p.m., Sacramento County Probation Department officers Robert Tette and John Montana, each in plain clothes and in an unmarked vehicle, were conducting probation home contacts when they saw the minor exit a market. Tette thought he recognized the minor as someone he had seen while making contact at another probationers home. Neither officer knew that the minor was on probation.

Tette pulled to the curb and both officers got out and approached the minor, displaying their badges. Tette told the minor he looked familiar and asked, Dont I know you? The minor replied, I dont know you, put his hand in his right front pants pocket, and took off running toward a residential area, keeping his hand in his pocket as he ran. Tette ran after the minor, remaining about 12 to 15 yards behind him. While Tette chased the minor, Montana radioed for assistance.

Tette followed the minor as the latter ran alongside a residence that had a fence at the back. The minor climbed over the fence and by the time Tette got there, the minor was out of sight.

About 20 minutes later, Tette and Montana received a radio call that a suspect was being detained at a specified residence. Tette and Montana drove to the location and identified the suspect as the minor who had fled. The minor identified himself and said that he had run because he was carrying a knife, which was a violation of a condition of his probation, and that he had thrown the knife away. By the side of the house where the minor had climbed over the fence, officers found a loaded .38-caliber revolver.

DISCUSSION

I

The minor contends the evidence is insufficient to support a finding that he possessed the .38-caliber revolver found by the side of the house because [n]o one saw him with a gun. No one saw him throw a gun, or any other object, away. There was no testimony of any suspicious bulges in his clothing which would suggest he had a gun on his person. [And t]here was no fingerprint evidence to connect [him] to the gun. We are not persuaded.

When the sufficiency of the evidence is challenged on appeal, the court must review the whole record in the light most favorable to the judgment to determine whether it contains substantial evidence -- i.e., evidence that is credible and of solid value -- from which a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. (People v. Green (1980) 27 Cal.3d 1, 55; In re Frederick G. (1979) 96 Cal.App.3d 353, 362-365.) Where substantial evidence supports the finding of the trier of fact, the fact that the circumstances are susceptible of an innocent explanation does not warrant a reviewing court to reverse the finding. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.)

Here, when the minor was confronted by the probation officers who asked whether they knew him, he put his hand in his front pocket and immediately fled, suggesting a consciousness of guilt. As the minor ran he kept his hand in his pocket, an unusual way to flee unless one is holding on to something. And the .38-caliber revolver was found by the side of the house where the minor had run before jumping the fence. A reasonable inference to be drawn from the foregoing evidence is that the minor fled because he was unlawfully in possession of the firearm that was found beside the house.

II

Prior to the jurisdictional hearing, the minor unsuccessfully sought to suppress his statement that he had possessed but discarded a knife.^[1] (Welf. & Inst. Code, 700.1.) The motion was based on the theory that the statement was the product of the minors being unlawfully detained. He repeats the argument on appeal, and it fares no better with this court than it did in the juvenile court.

In Illinois v. Wardlow (2000) 528 U.S. 119 [145 L.Ed.2d 570], uniformed officers were in the last car of a four-car caravan converging on a heavy narcotics trafficking area when they saw Wardlow standing beside a building holding an opaque bag. Wardlow looked in their direction and fled; they gave chase and caught him. A pat search of the bag carried by Wardlow disclosed a handgun, which was illegal for him to possess. (Id. at pp. 121-122.) The United States Supreme Court held that Wardlows presence in a high drug trafficking area, coupled with his unprovoked flight upon noticing the police, provided reasonable suspicion to detain him for investigation. (Id. at pp. 124-125.)

Here, the minors unprovoked flight upon learning that it was probation officers who were seeking to speak with him, coupled with the unusual fact that he ran with his hand in his right front pants pocket, a circumstance suggesting he was hiding something, were sufficient facts under Wardlow to detain him. Consequently, the challenged statement by the minor was not the product of an unlawful detention.^[2]

III

The minor contends the juvenile court made an arithmetical error when it calculated his maximum period of confinement. The People concede. We agree and shall correct the error.

The juvenile court calculated the minors maximum period of confinement as follows: five years as the principal term for a sustained robbery charge contained in an October 16, 2002, petition; a subordinate effective eight-month term for unlawful taking of a vehicle, a felony, contained in an August 31, 2004, petition; and a subordinate effective eight-month term for the possession of a firearm contained in the instant petition. The court, no doubt inadvertently, calculated the sum to be six years eight months instead of six years four months, the correct sum. We shall make the correction.

IV

Relying on In re Manzy W. (1997) 14 Cal.4th 1199 (Manzy W.), the minor contends that remand is required because the juvenile court failed to declare whether the offense of unlawful taking of a vehicle (Veh. Code, 10851, subd. (a)), a wobbler, which was previously sustained on August 31, 2004, was a felony or a misdemeanor. The People argue the minor should have raised the issue by appeal from the 2004 dispositional order and is barred from raising it now. We conclude the matter is properly before us but that no remand is necessary.

The matter is properly before us because the juvenile court used the vehicle offense in calculating the minors maximum period of confinement for the instant offense; it was part of the sentencing calculation of this case.^[3] Consequently, we shall consider the minors contention.

Welfare and Institutions Code section 702 mandates that in the case of an offense alternatively punishable as a felony or a misdemeanor, i.e., a wobbler, the court shall declare the offense to be a misdemeanor or felony. Unlawful taking of a vehicle, a violation of Vehicle Code section 10851, subdivision (a), is a wobbler offense. However, the minors admission to this offense was part of a negotiated settlement with the People whereby he was to admit the offense as a felony, and did expressly admit it as such, in exchange for the dismissal of other counts. Consequently, remand is not required.

Manzy W., supra, 14 Cal.4th 1199 is of no assistance to the minor. Manzy W. held that remand for compliance with Welfare and Institutions Code section 702 is required where the juvenile court fails to make the required felony/misdemeanor declaration of a wobbler offense and the record fails to show the court was aware of its discretion to impose a misdemeanor sentence. (Manzy W., supra, 14 Cal.4that pp. 1206-1209.) But Manzy W. did not involve, as here, a negotiated settlement for admission to a wobbler offense stipulated to be a felony. Manzy W. simply has no application in these circumstances.

V

The minor contends remand is required for the juvenile court to compute his discretionary maximum period of confinement in accordance with the latest amendment to Welfare and Institutions Code section 731, subdivision (b) (hereafter section 731(b)). We disagree.

Operative January 1, 2004, section 731(b) was amended to read in relevant part as follows: A minor committed to the Department of the Youth Authority [CYA] may not be held in physical confinement for a period of time in excess of the maximum period of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court. A minor committed to the Department of the Youth Authority also may not be held in physical confinement for a period of time in excess of the maximum term of physical confinement set by the court based upon the facts and circumstances of the matter or matters which brought or continued the minor under the jurisdiction of the juvenile court, which may not exceed the maximum period of adult confinement as determined pursuant to this section.^[4] (Amendment language indicated by italics.)

Although section 731(b) is by its express terms limited to CYA commitments, the minor argues that it must be construed to apply to commitments to residential facilities, such as Rite of Passage to which he was committed; otherwise, the section would violate the equal protection clause of the Fourteenth Amendment.

The argument fails because minors committed to residential facilities are not equally situated with minors committed to CYA. The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. (In re Eric J. (1979) 25 Cal.3d 522, 530.)

It has been recognized that wards committed to CYA are not similarly situated to wards not so committed: Commitment to the Youth Authority in particular, brings about a drastic change in the status of the ward which not only has penal overtones, including institutional confinement with adult offenders, but also removes the ward from the direct supervision of the juvenile court. (In re Arthur N. (1976) 16 Cal.3d 226, 237-238, fns. omitted, superseded by statute on another point as noted in In re Melvin J. (2000) 81 Cal.App.4th 742, 746, fn. 2.) A juvenile court does not lose direct supervision over a juvenile committed to the care, custody, and control of the probation officer by a camp placement. [Citations.] The juvenile courts continuing authority to supervise a juvenile committed to camp is evidenced by its statutory authority to make reasonable conduct orders and impose reasonable conditions in connection with a camp placement order. [Citations.] In this respect, a camp placement order is to be distinguished from a commitment to the Youth Authority, which deprives the juvenile court of any authority to directly supervise the juvenile. (In re Ronny P. (2004) 117 Cal.App.4th 1204, 1208, fn. omitted.)

Thus, given the difference in control by the juvenile court of wards committed to CYA and those committed to other facilities, the two groups are not similarly situated, and therefore the minors argument fails.

DISPOSITION

The minors maximum period of confinement is six years four months. The juvenile court is directed to amend its records accordingly and to forward to the Department of Corrections and Rehabilitation, Division of Juvenile Justice a certified copy of

the amended order committing the minor. In all other respects, the judgment is affirmed.

RAYE , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

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^[1] The relevance of this statement is that the minor was attempting to mitigate his violation of probation by claiming possession of a knife rather than a firearm because the former is a less dangerous weapon than the latter.

^[2] Relying on In re Tyrell J. (1994) 8 Cal.4th 68, the People argue the detention may be upheld because the minor was on searchable probation even though that fact was not known to Tette and Montana at the time the minor was detained. Following the filing of the Peoples brief in this case, the California Supreme Court filed an opinion in In re Jamie P. (2006) 40 Cal.4th 128, overruling In re Tyrell J. on the very point relied upon by the People. (See In re Jamie P., supra, at pp. 130, 139.)

^[3] Welfare and Institutions Code section 800, subdivision (a) provides, in pertinent part: A judgment in a proceeding under Section 601 or 602 may be appealed from, by the minor, in the same manner as any final judgment, and any subsequent order may be appealed from, by the minor, as from an order after judgment. (Italics added.)

^[4] The California Youth Authority is now the Division of Juvenile Justice; however, because section 731(b) refers only to the California Youth Authority, we shall use that term for purposes of this appeal.