People v. Frank M. (In re Frank M.), B238931

• Decision Date: 28 January 2013
• Docket Number: B238931
• Parties: In re FRANK M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FRANK M., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

In re FRANK M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. FRANK M., Defendant and Appellant.

B238931

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

Filed: January 28, 2013

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VJ41971)

APPEAL from a judgment of the Superior Court of Los Angeles County. Philip K. Mautino, Judge. Affirmed in part, conditionally reversed in part, and remanded with directions.

Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Nima Razfar, Deputy Attorneys General, for Plaintiff and Respondent.

The juvenile court denied Frank M.'s motion to suppress and found that Frank committed the crime of carrying a concealed dirk or dagger. (Former Pen. Code, § 12020, subd. (a).) The court ordered Frank placed home on probation, with a stated maximum term of confinement not to exceed three years. We affirm the denial of Frank's motion to suppress; we conditionally reverse the adjudication with directions to the juvenile court on how to proceed upon remand.

FACTS

On November 18, 2011, at around 11:18 p.m., Los Angeles Sheriff's Department Deputy Jose Hernandez and his partner, Deputy Monty Gudino, were on patrol when they noticed a white van parked on the street in front of the Robledo family's home.¹ The van was impeding a traffic lane; its lights were off. The deputies stopped their patrol car and got out to investigate the van. When the deputies pointed their flashlights into the van, they saw four persons inside. Frank was sitting in the front passenger seat. Deputy Hernandez recognized a male in a back seat as "Avalos," a Pico Viejo gang member and the suspected gunman in a shooting that had occurred at a Walmart store a few weeks earlier. The deputies had been briefed on the investigation and had seen photos of Avalos and his white van.

After recognizing Avalos, Deputies Hernandez and Gudino detained everyone in the van. Deputy Gudino performed a patdown search on Frank and recovered a concealed knife in his rear pocket.

In November 2011, the People filed a petition pursuant to Welfare and Institutions Code section 602 alleging that Frank committed the crime of carrying a concealed dirk or dagger. (Former Pen. Code, § 12020, subd. (a).) At a hearing over two days in late January and early February 2012, the juvenile court denied Frank's motion to suppress the knife found in his pocket, and found Frank committed the alleged offense.

Frank filed a timely appeal.

DISCUSSION

I. The Single Hearing Issue

Frank contends the juvenile court's judgment, including all orders from the denial of his motion to suppress, to adjudication, to disposition, must be reversed because the court erred in conducting a "simultaneous" hearing on his motion to suppress and on the adjudication of the alleged offense. Frank argues the unified hearing procedure violated Welfare and Institutions Code section 700.1,² and that the violation mandates reversal of all aspects of the juvenile court's proceedings in that the single hearing procedure violated his right to due process. We agree the juvenile court violated section 700.1, requiring a conditional reversal of the court's adjudication. However, we disagree that reversal of the denial of Frank's motion to suppress is mandated.

The Governing Law

In 1980, the Legislature enacted legislation governing the juvenile court law as it concerned motions to suppress evidence, judgments and appeals. (Stats. 1980, ch. 1095, pp. 3511-3512.) As relevant to Frank's current appeal, the 1980 legislation added section 700.1 to the juvenile court law. Section 700.1 currently reads:

"Any motion to suppress as evidence any tangible or intangible thing obtained as a result of an [alleged] unlawful search or seizure shall be heard prior to the attachment of jeopardy . . . . ³

"If the court grants a motion to suppress prior to the attachment of jeopardy over the objection of the people, the court shall enter a judgment of dismissal as to all counts of the petition except those counts on which the prosecuting attorney elects to proceed pursuant to Section 701. . . ."

The 1980 legislation also added section 800 to the juvenile law. As relevant to Frank's appeal, section 800 currently reads:

"(a) A judgment in a [juvenile criminal] proceeding . . . may be appealed from, by the minor, in the same manner as any final judgment . . . .

"A ruling on a motion to suppress pursuant to Section 700.1 shall be reviewed on appeal even if the judgment is predicated upon an admission of the allegations of the petition. [¶] . . . [¶]

"(b) An appeal may be taken by the people from any of the following:

"(1) A ruling on a motion to suppress pursuant to Section 700.1 even if the judgment is a dismissal of the petition or any count or counts of the petition. However, no appeal by the people shall lie as to any count which, if the people are successful, will be the basis for further proceedings subjecting any person to double jeopardy. . . ." (Italics added.)

The 1980 legislation replaced a "prior haphazard scheme" governing motions to suppress evidence in juvenile criminal proceedings, and appellate review of rulings on such motions. (Abdullah B. v. Superior Court (1982) 135 Cal.App.3d 838, 843.) The current statutory scheme expressly provides that a juvenile may make a pre-adjudication motion to suppress, "and permits review by appeal at the request of either the defendant or the prosecution." (Ibid.) But, under section 800, the People's right to appeal is limited in that the People have no right to appeal as to any count which, if the People's appeal succeeded, the juvenile would be subject to double jeopardy.

The Juvenile Court Setting

On Monday, January 30, 2012, the following colloquy took place between the court and Frank's defense counsel:

"THE COURT: . . . We are set for a trial today. And concurrently with that, we're going to hear a 700.1 motion. And all the evidence in the trial will be relevant to the 700.1 motion and all the 701 [sic] evidence will also be applied to the trial.

"Any objection by either party?

"[DEFENSE COUNSEL]: Just to be clear, Your Honor, initially, we planned just on doing the motion.

"THE COURT: I always join them together and we hear them all at the same time.

"If you want to be heard, I'll give you a chance to be heard, but that's what I'm going to do.

"[DEFENSE COUNSEL]: Initially, it was the defense's position that we were looking to do a potentially dispositive motion. And if the motion's lost, then negotiate a disposition with the People.

"THE COURT: I'm not going to do that. We'll hear them both at once and the 700 [sic] will be applied to the trial and vice versa.

"[DEFENSE COUNSEL]: If I could just have a moment to explain to my client that real[i]ty."

A moment later, Deputy Hernandez was sworn and testified regarding the events on the evening of November 18, 2011. After Deputy Hernandez finished testifying, the court granted the prosecutor's request for a continuance. On Thursday, February 2, 2012, Deputy Gudino testified. The deputies' testimony established the facts that are summarized above. After Deputy Gudino finished testifying, the court heard argument on Frank's motion to suppress, and denied the motion. Frank then rested without presenting any defense evidence. The court then heard argument on the adjudication of the charged offense and found that Frank possessed a concealed dirk or dagger.

Analysis

As noted above, section 700.1 provides that a motion to suppress "shall be heard prior to the attachment of jeopardy . . . ," (italics added) i.e., prior to the first witness being sworn at the adjudicatory phase of a juvenile proceeding. The record shows that the juvenile court violated section 700.1 in Frank's case. The court did not hear Frank's motion to suppress prior to Deputy Hernandez being sworn for the adjudicatory phase of Frank's case.

We understand the juvenile court's concerns for efficiency, and in not making witnesses come to court for multiple rounds of testimony. However, such concerns do not trump the express command of section 700.1. Under section 700.1, the court was required to hear Frank's motion to suppress prior to the first witness being sworn at the adjudicatory phase.⁴

Given that there was a violation of section 700.1 in Frank's case, the issue for this court on appeal is what to do about the violation. Frank argues every aspect of his case must be tossed on the ash heap. We disagree.

In In re Mitchell G. (1990) 226 Cal.App.3d 66 (Mitchell G.), Division Four of our court addressed a juvenile case implicating sections 700.1 and 800. In Mitchell G., the People filed a petition charging a juvenile with firearm and ammunition charges. The juvenile filed a motion to suppress pursuant to section 700.1, apparently arguing the items had been seized in the course of a search incident to an arrest without probable cause. The juvenile court held a combined adjudication and suppression hearing after obtaining a stipulation from defense counsel " 'that the testimony that is taken on the section 700.1 motion be as to the adjudication also.' " (Mitchell G., at p. 69.) The arresting officer was then sworn and gave his account of how he came to find the firearm and ammunition on the juvenile. After the testimony, the court granted the juvenile's motion to suppress, and the prosecutor stated that the People could not proceed without the suppressed evidence. The...