In re Ernesto M.

Filed 8/7/07 In re Ernesto M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

Appeal from an order of the Superior Court of Los Angeles County, Rudolph Diaz, Judge. Affirmed as modified.

Patricia Winters, 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, Senior Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

Ernesto M. appeals from an order declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 upon the courts finding that he possessed a controlled substance, methamphetamine, in violation of Health and Safety Code section 11377, subdivision (a). He was placed home on probation and contends the juvenile court erred in denying his suppression motion and setting a maximum term of confinement. For reasons stated in the opinion, we strike the maximum period of confinement and in all other respects affirm the order of wardship.

FACTUAL AND PROCEDURAL SUMMARY

On February 6, 2006, at approximately 9:20 p.m., Los Angeles Deputy Sheriff Carlos Veramendi was in the vicinity of 6th and Atlantic Streets in the County and City of Los Angeles when he saw appellant on the sidewalk, facing a wall. The wall had a lot of graffiti on it and Deputy Veramendi believed appellant was vandalizing it based on the motion appellant was making with his hand.

Deputy Veramendi asked appellant, How are you doing? [and] Whats going on? Appellant stated he was waiting for his girlfriend. When the deputy asked him if he had ever been in trouble with the law, appellant stated he had previously been on probation for vandalism. Appellant also stated he used to be in a tagging crew. When Deputy Veramendi asked appellant if he had anything on his person they should know about, appellant stated he had some cigarettes. Appellant appeared to be less than 18 years old and a minor with cigarettes is a violation of the Penal Code. The deputy and his partner exited their patrol car, and appellant said he had a cigarette box in his right front pants pocket. The deputy recovered the cigarette box and inside saw eight unused cigarettes and a plastic Ziploc baggy, which contained off-white, crystal-like rocks that resembled methamphetamine. Prior to asking appellant if he had anything on his person, neither the deputy nor his partner displayed a weapon or ordered appellant to stop. The deputies spoke to appellant in a regular tone and were still in their vehicle. While the officers talked to appellant, Deputy Veramendi did not see anything in appellants hands.

It was stipulated that the baggy containing the off-white substance found in the cigarette box was analyzed by a forensic chemist and found to be .08 gram of a solid substance containing methamphetamine.

Appellant testified in his own defense that he was standing on 6th Street putting recently purchased batteries into his C.D. player. He was startled when the patrol car drove up and stopped approximately three or four feet from him. One of the deputies asked him what he was doing, and appellant truthfully told him he was waiting for his girlfriend. When the deputy asked him what he was doing, appellant did not feel he was able to just walk away and not answer his questions. Appellant felt he had to stay there. The deputies asked appellant his name, date of birth and where he was born, and appellant believed he was going to get arrested.

The court denied appellants suppression motion, finding there had been a consensual encounter and that when the deputies discovered appellant was violating the law by being in possession of cigarettes, they had a right to arrest him.

DISCUSSION

I

As the finder of fact in a proceeding to suppress evidence [citation], the superior court is vested with the power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in deciding whether a search is constitutionally unreasonable. [Citation.] Accordingly, in reviewing the instant suppression order, we consider the record in the light most favorable to defendants as respondents since all factual conflicts must be resolved in the manner most favorable to the [superior] courts disposition on the [suppression] motion. [Citation.] But while we defer to the superior courts express and implied factual findings if they are supported by substantial evidence, we exercise our independent judgment in determining the legality of a search on the facts so found. [Citations.] (People v. Woods (1999) 21 Cal.4th 668, 673-674.)

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 individuals liberty. [Citations.] . . . Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. [Citation.] [] 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 individuals 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 officers 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 officers request might be compelled. [Citations.] The officers uncommunicated state of mind and the individual citizens subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred. [Citation.] (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

Substantial evidence supports the juvenile courts finding that the encounter between appellant and Deputy Veramendi was consensual. Deputy Veramendi and his partner had not yet exited their vehicle. They did not display weapons or order appellant to stop. Deputy Veramendi spoke to appellant in a normal tone of voice. There is nothing in the record that would suggest a reasonable person would not have felt free to decline to answer Deputy Veramendis questions.

II

Appellant contends the courts order should be corrected to delete any reference to a maximum term of confinement for appellants disposition of home on probation.[1] Welfare and Institutions Code section 726, subdivision (c) provides, If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to [Welfare and Institutions Code] section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term 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.

By its express terms, Welfare and Institutions Code section 726, subdivision (c) only applies if a minor is removed from the physical custody of his or her parent or guardian. Appellant was not removed from the physical custody of his parents, there was no confinement, and the courts minute order setting a maximum term of confinement is erroneous. (In re Ali A. (2006) 139 Cal.App.4th 569, 573.)

DISPOSITION

The maximum term of confinement is stricken and in all other respects the order of wardship is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EPSTEIN, P.J.

We concur:

WILLHITE, J.

MANELLA, J.

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[1] While the courts minute order states that the minor may not be held in physical confinement for a period to exceed three years, the reporters transcript of proceedings does not reflect the trial court made such an oral pronouncement.