In re D.C. CA2/2 ( 2015 )


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  • Filed 6/1/15 In re D.C. CA2/2
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO
    In re D.C., a Person Coming Under the                                B259500
    Juvenile Court Law.                                                  (Los Angeles County
    Super. Ct. No. VJ43372)
    THE PEOPLE,
    Plaintiff and Respondent,
    v.
    D.C.,
    Defendant and Appellant.
    THE COURT:*
    Juvenile defendant D.C. (defendant) appeals from the dispositional order arising
    from his carrying a loaded firearm in public. Defendant filed a timely notice of appeal,
    challenging the denial of his motion to suppress evidence. His appointed counsel filed a
    brief pursuant to People v. Wende (1979) 
    25 Cal.3d 436
     (Wende), raising no issues. On
    March 2, 2015, we notified defendant of his counsel’s brief and gave him leave to file
    *
    ASHMANN-GERST, Acting P.J., CHAVEZ, J., HOFFSTADT, J.
    within 30 days, his own brief or letter stating any grounds or argument he wishes to have
    considered. We have not received a response to date. We have independently reviewed
    the record and agree that there are no arguable issues and thus affirm.
    FACTS AND PROCEDURAL HISTORY
    Several Los Angeles County Sheriff’s deputies were conducting a general fare
    audit in plain clothes at an MTA platform in Compton. After Officer Chambless noticed
    that defendant and his two male companions immediately changed directions when they
    noticed some of the deputies, he approached the group and asked for their TAP cards.
    Because defendant and his associates could not provide TAP cards, Officer Chambless
    and his partner began escorting them towards the bottom of the platform to provide
    citations. During the walk, one of the companions, D.S., started walking faster to
    distance himself from defendant. D.S. then became confrontational, first verbally and
    then physically. While Officer Chambless and his partner struggled with D.S. for about
    15 seconds, defendant began walking away. At which point, Officer Johnson stopped
    and handcuffed defendant, and walked defendant over to a patrol car. It is disputed
    whether at this time, defendant admitted that he was on probation with search conditions.
    Officer Johnson then patted down defendant and felt a heavy object in his rear
    right pocket. The officer then reached into the pocket and recovered a semiautomatic
    handgun with seven live rounds of ammunition. After another deputy sheriff informed
    defendant of his Miranda1 rights, defendant admitted that he carried the gun for
    protection because a lot of gangs ride the trains, making them dangerous. Defendant’s
    written statement reiterated the same, adding that he started carrying the gun after he was
    robbed and later found the gun.
    A detained Welfare and Institutions Code section 602 petition was filed with the
    juvenile court, alleging the carrying of a loaded firearm in public (Pen. Code, § 25850,
    subd. (a))2 (count 1), possessing a firearm by a minor (§ 29610) (count 2), and possessing
    1      Miranda v. Arizona (1966) 
    384 U.S. 436
    .
    2      Unless otherwise indicated, all further statutory references are to the Penal Code.
    2
    live ammunition by a minor (§ 29650) (count 3). The court then denied defendant’s
    motion to suppress evidence (Welf. & Inst. Code, § 700.1) because the gun was found
    pursuant to an appropriate detention and search. The court then found all allegations true
    and merged counts 1 and 2 for sentencing (§ 654).
    At the disposition hearing, the court ordered that defendant continue as a ward of
    the court (Welf. & Inst. Code, § 602) and terminated the home on probation originally
    ordered as a result of defendant’s prior petition and admission of a first degree burglary, a
    felony (§ 459). The court then ordered defendant to a camp community placement
    program for six months (maximum confinement of six years, eight months), with 36 days
    of predisposition credit, and ordered defendant to pay $100 in a restitution fine.
    Defendant timely appealed.
    DISCUSSION
    There are no arguable issues, including the lower court’s denial of the motion to
    suppress. We exercise our independent judgment on whether there was an unreasonable
    search or seizure under the Fourth Amendment. (People v. Toure (2015) 
    232 Cal.App.4th 1096
    , 1103.) To briefly detain a person for investigative purposes, officers
    must have a reasonable suspicion (supported by specific and articulable facts) that
    criminal activity is afoot regardless of probable cause to arrest. (Terry v. Ohio (1968)
    
    392 U.S. 1
    , 21–23.) The officer can also perform a pat down search for weapons if there
    is reason to believe that the person is armed and dangerous. (Id. at p. 27; see also People
    v. Garcia (2006) 
    145 Cal.App.4th 782
    , 784.)
    The detainment was valid because defendant failed to provide proof of his fare
    (§ 640, subd. (c)(1)). The frisk was also justified for the officers’ safety given that one of
    defendant’s companions became combative, and defendant was suspiciously walking
    away during the officers’ struggle with that group member. In addition, based on Officer
    Chambless’s experience, when individuals in a group move away from each other or if
    part of the group assaults law enforcement, the individual walking away may have a
    warrant out for his arrest, a gun or other contraband. It also appears that the search was
    properly restricted because Officer Johnson patted down defendant’s outer clothing.
    3
    Only after the officer felt a heavy, hard object in defendant’s rear pocket did he conduct a
    fuller search by reaching in to find the gun. Thus, the trial court properly denied the
    motion to suppress evidence.
    We have also made an independent examination of the entire record and have
    determined that there are no arguable issues. We are satisfied that defendant’s counsel
    has fully complied with her responsibilities under Wende, supra, 
    25 Cal.3d 436
    .
    DISPOSITION
    The order is affirmed.
    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
    4
    

Document Info

Docket Number: B259500

Filed Date: 6/1/2015

Precedential Status: Non-Precedential

Modified Date: 6/1/2015