Donald L., In re

• Decision Date: 12 June 1978
• Parties: In re DONALD L., a minor. John A. DAVIS, Chief Probation Officer, Plaintiff and Respondent, v. DONALD L., Defendant and Appellant. Civ. 41545.
• Court: California Court of Appeals Court of Appeals

Page 720

146 Cal.Rptr. 720

81 Cal.App.3d 770

In re DONALD L., a minor.

John A. DAVIS, Chief Probation Officer, Plaintiff and Respondent, v. DONALD L., Defendant and Appellant.

Civ. 41545.

Court of Appeal, First District, Division 3, California.

June 12, 1978.

Rehearing Denied July 12, 1978.

Hearing Denied Aug. 10, 1978.

Michael Todd Davis, Eureka (under appointment of the Court of Appeal), for defendant and appellant.

Evelle J. Younger, Atty. Gen. of the State of California, Jack R. Winkler, Chief Asst. Atty. Gen., Crim. Div., Edward P. O'Brien, Asst. Atty. Gen., Timothy Reardon, Ina Levin Gyemant, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

SCOTT, Acting Presiding Justice.

A supplemental petition filed in the Contra Costa County Juvenile Court alleged that Donald L., a 17-year-old ward of the court, burglarized a certain residence in Martinez on December 9, 1976. A jurisdictional hearing before a referee was set for January 6, 1977. At the commencement of that proceeding, the juvenile moved to suppress certain evidence on the ground it had been unlawfully seized (Pen.Code, § 1538.5). The referee granted the motion to suppress and then dismissed the petition. The juvenile court, on its own motion, ordered a rehearing of the 1538.5 motion (Welf. & Inst.Code, § 253). The juvenile court judge ruled that the evidence had been lawfully seized and denied the juvenile's 1538.5 motion. The court then found the allegations of the petition to be true. Following a disposition hearing before a referee, the court committed the minor to the Youth Authority. The minor appeals.

Double Jeopardy Issue

Appellant contends his Fifth Amendment protection against double jeopardy was violated when the juvenile court ordered a rehearing after the referee had suppressed the evidence and dismissed the petition (see Jesse W. v. Superior Court (1978) 20 Cal.3d 893, 145 Cal.Rptr. 1, 576 P.2d 963). The record shows that a jurisdictional hearing was calendared for hearing before a juvenile court referee. When the parties appeared for that hearing, however, appellant's counsel made an oral motion to suppress the evidence on the ground it was unlawfully seized. After hearing testimony of the arresting officer, the referee granted the 1538.5 motion and dismissed the petition before the jurisdictional phase of the hearing was "entered upon." Under those circumstances, appellant was not placed in jeopardy at the hearing before the referee, and thus the rehearing before the juvenile court judge did not constitute double jeopardy.

Motions to suppress evidence pursuant to Penal Code section 1538.5 may be heard by referees and their rulings reviewed de novo by a juvenile court judge. However, in light of Jesse W. it behooves juvenile courts to make a clear record separating motions to suppress from jurisdictional hearings.

Search and Seizure Issue

At about 9:00 p. m. on December 9, 1976, Martinez Police Officer Gerald Walmsley was on routine patrol in a marked police car, accompanied by a reserve police officer, when he received a police radio dispatch concerning a suspicious subject in the 1000 block of Arreba Street. An elderly woman, who lived alone, had reported that a white male, wearing a maroon jacket and a maroon beanie cap, had knocked on the door of her residence, that when she went to the door the young man asked for a person by the name of "Kim," that she told him no person by that name lived at that address, and then the man had left. Officer Walmsley immediately drove to the area of Arreba Street and saw appellant walking near an intersection about five blocks from the residence of the elderly woman who had reported the incident. Appellant was wearing a maroon jacket and a maroon beanie cap. Officer Walmsley stopped his patrol car and told appellant to stop. The officer observed that appellant was carrying an instrument of some kind in one hand and ordered him to drop it. Appellant dropped the object on the ground. Officer Walmsley approached appellant and picked up the object which was a "club type" instrument, about 14 inches long, covered with imitation leather and with metal spikes protruding from it. Officer Walmsley told appellant that possession of such a weapon is a felony (see Pen.Code, § 12020), and asked where he had obtained it. Appellant said he found it in a park about two blocks away. Officer Walmsley handed the instrument to the reserve officer and asked appellant whether he was carrying any other weapons. Appellant replied "No," but the officer nevertheless decided to pat-search appellant for weapons before questioning him about the incident at the elderly woman's house. In the process of the pat-search, Officer Walmsley felt a hard object, which he believed to be a knife, in the right-hand pocket of appellant's jacket. Officer Walmsley reached into the pocket and removed the hard object which was a straight-edge razor. When Officer Walmsley reached into appellant's pocket, he also felt a number of other objects such as rings, necklaces, and watches. Suspecting that the objects had been stolen, Officer Walmsley removed the following objects from appellant's right-hand jacket pocket: several pieces of jewelry, including rings and a small piece of jade, compact watches, roach clips, and a left-hand glove. Officer Walmsley then told appellant he was under arrest for "suspicion of burglary," since the officer was aware that a number of burglaries had been committed in that area recently and that only jewelry had been stolen. A further search of appellant's left-hand jacket pocket disclosed more jewelry, including rings and brooches, a watch, a letter opener, more roach clips, and a right-hand glove. It was later determined that the objects found in appellant's pocket, as well as the 14-inch club, had been stolen from a certain burglarized residence in Martinez.

In contending that the stolen property was unlawfully seized from the pockets of his jacket, appellant argues that the initial detention was unlawful because his walking down the street of a residential area at 9:30 p. m. was as consistent with innocence as with criminal activity, and that the detention was based on a "mere hunch," citing Irwin v. Superior Court (1969) 1 Cal.3d 423, 82 Cal.Rptr. 484, 462 P.2d 12, and Remers v. Superior Court (1970) 2 Cal.3d 659, 87 Cal.Rptr. 202, 470 P.2d 11. The argument, however, is without merit since appellant matched the description of the person who had knocked on the door of an elderly woman, asked for a person who did not live there, and was then seen in the area carrying a 14-inch club with spikes in it. Under the...