Filed 8/12/16 In re Sammy A. CA4/1
                         NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                       COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                     DIVISION ONE

                                              STATE OF CALIFORNIA



In re SAMMY A., a Person Coming
Under the Juvenile Court Law.
                                                                D069003
THE PEOPLE,

         Plaintiff and Respondent,                              (Super. Ct. No. J232464)

         v.

SAMMY A.,

         Defendant and Appellant.


         APPEAL from an order of the Superior Court of San Diego County, Aaron H. Katz,

Judge. Affirmed and remanded with directions.

         Wayne C. Tobin, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Theodore M. Cropley

and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
       Following the denial of his motion to suppress evidence, Sammy A. (the Minor)

admitted carrying a loaded firearm in a vehicle in a public place (Pen. Code,1 § 25850,

subd. (a)); admitted the firearm was stolen (§ 25850, subd. (c)(2)); and possession of

ammunition (§ 29650). The remaining counts in the petition were dismissed.

       The Minor was committed to the Breaking Cycles program. Upon completion of the

program, the Minor would be placed with his mother.

       The Minor appeals contending the trial court erred in denying his motion to suppress

the evidence taken from him at the time of his arrest. He contends the police lacked

reasonable suspicion to stop the car in which he was riding, that the detention was unduly

delayed, and that his otherwise voluntary consent to the search of his person was the product

of the unlawful detention. We will find the juvenile court correctly found the stop to be

lawful, the detention reasonable, and the search of the Minor's person to be lawful.

       The Minor also contends the trial court erred in failing to designate the weapon charge

as a misdemeanor or a felony. The People agree the court failed to make the designation and

that the matter must be remanded with directions. We agree the matter must be remanded for

the court to declare the offense either a misdemeanor or a felony. Accordingly, we will

affirm the juvenile court's order and remand for further proceedings.

                                  STATEMENT OF FACTS

       On August 24, 2015, San Diego Police Detective Amalia Sidhu, along with other

officers, was conducting a surveillance of the funeral for a Lincoln Park street gang member

who had been killed by law enforcement officers from a different jurisdiction. The

1      All further statutory references are to the Penal Code unless otherwise specified.
                                                 2
surveillance by Sidhu was conducted with binoculars from about one and one half blocks

away.

        Police had received information from a Fresno County police agency that there was an

active felony murder warrant outstanding for a person named Shawn Lamont Brown. Police

believed Brown would be in attendance at the Lincoln Park gang funeral. San Diego Police

had obtained Brown's picture from DMV. Brown was described as wearing dreadlocks, but

that he might have cut them prior to that date to disguise himself. Brown was 5'7" and

weighed about 109 pounds.

        During the funeral police observed a person dressed with a white "hoodie" and white

pants. The person's face was mostly obscured by the hood, which the person continued to

wear notwithstanding the funeral was in the middle of summer. The suspect greeted various

Lincoln Park gang members and exchanged a gang handshake. The detective's opinion was

that gang associates at gang funerals were often armed.

        Police observed the suspect walk away from the group and ultimately he and two other

males, including the Minor, got into the same car. Because the detective believed the suspect

fit Brown's physical description, she had patrol officers conduct an investigative stop.

        When police stopped the car, they discovered the suspect was not Brown. The person

was identified as Frederick Jordan. Police learned Jordan did not have a driver's license. He

was removed from the car. The person in the front passenger seat was identified as Dedric

Jordan. During the stop, Dedric reached for a backpack on the floor, until stopped by police.

Police then removed Dedric and the Minor from the car so the car could be searched for

weapons. Both were patted down for weapons. Police asked the Minor for permission to

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search him, which permission was granted. The officer discovered a loaded firearm in the

Minor's pants.

                                         DISCUSSION

                                                I

                              THE DETENTION WAS LAWFUL

       The motion to suppress the evidence in this case rises or falls based on the question of

whether the initial stop was lawful. If it was lawful, police thereafter conducted themselves

properly and had unquestioned consent to search the Minor's person. If the stop was

unlawful, then the detention, consent and search would be the "fruit of the poisonous tree."

(Wong Sun v. United States (1963) 371 U.S. 471.)

       We begin our discussion with the acknowledgement that this is a close case. The

suspect turned out not to be the person for whom police were looking to serve an arrest

warrant. Surveillance of the group was somewhat difficult, and it was hard to make out the

suspect's features because he continuously wore the hood over his head and did not look

directly in the direction of the police. The suspect had a thin build, but ultimately turned out

to be taller than Brown.

       Our analysis is guided first by the trial court's findings on credibility. With those

historical facts determined we believe the observations by police under the circumstances of

this case gave the officers reasonable suspicion, based on articulable facts, that criminal

activity may be taking place and that they acted reasonably in their investigation. (Terry v.

Ohio (1968) 392 U.S. 1.)



                                                4
                                      A. Legal Principles

       When we review a trial court decision granting or denying a motion to suppress

evidence on Fourth Amendment grounds we apply a two-step analysis. First we review the

trial court's findings as to the historical facts. We apply the substantial evidence standard of

review to those findings. We do not make credibility decisions nor do we reweigh evidence.

We determine whether there is sufficient substantial evidence to support the trial court's

findings. Once we determine the historical facts, we determine the lawfulness of the search

or seizure using our independent judgment. (People v. Leyba (1981) 29 Cal.3d 591, 596-598;

People v. Williams (1988) 45 Cal.3d 1268, 1301.)

       In Terry v. Ohio, supra, 392 U.S. 1, the court considered whether police can detain a

person briefly for investigation. The court concluded such seizures are lawful where the

officer has sufficient articulable facts from which an officer with the same experience would

reasonably conclude that criminal activity may be "afoot." (Id. at pp. 30-31.)

       As our courts have pointed out, temporary detentions can be based on justification less

than probable cause. The proper standard has been commonly referred to as the reasonable

suspicion standard. (People v. Souza (1994) 9 Cal.4th 224, 231; People v. Wells (2006) 38

Cal.4th 1078, 1083.)

       We examine the officer's action in light of all the circumstances and the officer's

experience. (Terry v. Ohio, supra, 392 U.S. at pp. 30-31; People v. Souza, supra, 9 Cal.4th at

p. 231.)

       We will next apply these principles to the facts as found by the trial court.



                                                5
                                          B. Analysis

       We note at the outset of our analysis that the juvenile court credited the police officers'

testimony. The court also found their conclusions that the suspect was deliberately covering

his head and face to avoid detection, to be consistent with the tip the officers had received.

Police were informed of Brown's description and that he might disguise himself, or cut his

hair to avoid recognition.

       After four hours of surveillance the detective believed the suspect matched Brown's

description, although she had been limited in her observation by the hood covering the

suspect's head and obscuring his face. From the detective's vantage point the suspect was a

young thin black male who appeared to be hiding his features, which was not inconsistent

with the information police had received from another agency.

       Essentially, the officer's observations, made over a prolonged period showed behavior

consistent with the tip was a circumstance which supported the officer's reasonable suspicion

that the person she observed was Brown. (People v. Wells, supra, 38 Cal.4th at p. 1083.)

       The Minor protests that his conduct wearing a hoodie was lawful as was his attendance

at the gang funeral. However accurate that may be, it does not negate reasonable suspicion.

We note the observed conduct of the suspects in Terry v. Ohio, supra, 392 U.S. at pages 5

through 8, was also lawful. In Terry an officer with experience in theft cases observed Terry

and two other men walk back and forth in front of a store, which was open in the middle of

the afternoon. The men walked back and forth over 20 times, periodically stopping to confer.

The officer concluded the men were probably planning a robbery. The officer approached the

men, stopped and frisked them. The court held both the search and seizure were valid.

                                                6
Essentially the court determined the officer's lengthy observation of conduct which, although

lawful, was also consistent with his suspicions of an evolving crime. The court observed it

would have been poor police work if the officer had not detained the individuals to

investigate.

       The court held that when the officer's observations of unusual conduct, which in the

officer's experience may indicate criminal activity is afoot, the officer may act to detain a

person long enough to reasonably investigate. (Terry v. Ohio, supra, 392 U.S. at pp. 30-31;

see Adams v. Williams (1972) 407 U.S 143, 145-146.)

       After reviewing the record, based upon the trial court's factual findings, we are

satisfied that the detective had reasonable suspicion, based upon sufficient articulable facts

and based on her experience, to believe the suspect she observed was the fugitive Brown.

Thus, we conclude the detention of the suspect and the occupants of the car was lawful. The

pat down of the Minor was lawful and the juvenile court correctly denied the motion to

suppress evidence.

                                                II

                     FAILURE TO DETERMINE WHETHER THE CRIME
                          WAS A FELONY OR MISDEMEANOR

       The Minor contends, and the People agree, the juvenile court erred by failing to

determine if the offense in this case should be a felony or a misdemeanor.

       Where an offense is punishable as either a felony or a misdemeanor, Welfare and

Institutions Code section 702 requires the juvenile court to declare the status of the offense.

The court in In re Manzy W. (1997) 14 Cal.4th 1199, 1207, held that the requirements of


                                                7
Welfare and Institutions Code section 702 are mandatory on the juvenile court. Where the

juvenile court fails to make the required declaration our obligation is to remand the case to

the juvenile court with directions to comply with the statute. We will follow that direction in

this case.

                                        DISPOSITION

       The case is remanded to the juvenile court with directions to determine if the offense

in this case should be a felony or a misdemeanor. The court shall make its determination on

the record and amend the court's minutes accordingly. In all other respects the order is

affirmed.


                                                                      HUFFMAN, Acting P. J.

WE CONCUR:


                      HALLER, J.


                     PRAGER, J.*




*       Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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