Filed 8/5/14 In re A.J. CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 977.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


In re A.J., a Person Coming                                              B250167
Under the Juvenile Court Law.
_____________________________________                                   (Los Angeles County
                                                                        Super. Ct. No. FJ51030)
THE PEOPLE,

         Plaintiff and Respondent,

         v.

A.J.,

         Defendant and Appellant.




         APPEAL from orders of the Superior Court of Los Angeles County,
Charles Scarlett, Judge. Affirmed.
         Kimberly Howland Meyer, 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, Senior Assistant Attorney General, Victoria B. Wilson and
Mark E. Weber, Deputy Attorneys General, for Plaintiff and Respondent.

                                        _________________________
       A.J. (appellant) appeals the juvenile court’s orders of wardship (Welf. & Inst.
Code, § 602) following findings appellant committed the offenses of possessing
marijuana for sale (Health & Saf. Code, § 11359) and possessing an enumerated tool or
marking substance with the intent to commit vandalism or to affix graffiti (Pen. Code,
§ 594.2, subd. (a)). The juvenile court ordered appellant home on probation.
       He contends: (1) his admission the backpack was his was obtained without an
advisement of, and waiver of, Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436);
and (2) if the officer’s testimony appellant acknowledged the backpack containing the
contraband was properly excluded from evidence, the evidence supporting the juvenile
court’s order is insufficient to support the orders of wardship.
                                     BACKGROUND
       In a petition filed on February 6, 2013, it was alleged the 17-year-old appellant
came within the provisions of section 602 of the Welfare and Institutions Code in that he
possessed marijuana for sale (count 1), he committed vandalism with $400 or less of
damage by marking a table belonging to a Jack-In-The-Box restaurant (count 2) and he
possessed markers and a scribing tool for the purpose of committing vandalism or
affixing graffiti (count 3).
       1. The People’s case-in-chief.
       At about 9:30 p.m. on December 2, 2012, Santa Monica Police Officer Martin
Jauregui (Officer Jauregui) and his partner stopped a car on Lincoln Boulevard for a
traffic violation. There were three youths in the car. Officer Jauregui had the driver step
out of the car. The officer saw the handle of a gun in the pocket of the driver’s door.
He handcuffed the driver and had him sit at the rear of the car on the curb. The officer
retrieved and examined the gun. It was made of plastic. He replaced the plastic gun in its
door pocket.
       When Officer Jauregui was standing next to open car door and while he was
retrieving and replacing the plastic gun, he could smell a strong odor of marijuana
emanating from inside the vehicle. Consequently, Officer Jauregui had appellant, the
front right passenger, and a rear passenger alight. On the way to the rear of the car,

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Officer Jauregui told appellant he was detained and not under arrest. At the rear of the
car, the officer handcuffed appellant, patted him down and sat him on the curb. In
appellant’s pocket, the officer found a “scribing tool.” Then the officer had the rear
passenger get out of the car and sit on curb with the other two youths. The officer had
detained the youths.
         Due to the marijuana odor, the officer searched the car’s interior. The officer
found a half an ounce of marijuana inside a canister in the car’s center console. Officer
Jauregui found a backpack on the front passenger floorboard. Inside the backpack, he
found about nine Ziploc baggies containing in all 3.6 grams of marijuana, a digital scale,
a little over $72 in currency and a wallet containing appellant’s college identification and
a citation for vandalism issued by the Los Angeles Police Department, which bore
appellant’s name. There were also various “markers” and “streaks” inside the backpack
The officer found a sticker inside that bore the text, “DOG STV” and “77.”
         After Officer Jauregui opened and searched the backpack, he asked appellant
whether the backpack was his. Appellant replied, “Yes.”
         At that point, a woman working at the Jack-in-the-Box restaurant across the street
approached Officer Jauregui. She complained the detained youths had “tag[ged]” one of
the tables at the restaurant. Officer Jauregui went across the street and observed a Jack-
in-the-box table that had a “scribe” or graffiti on its surface that said, “77.” By “scribe,”
the officer explained a “scribe is like a tool used to deface a table.” It “kind of engraves
inside the wood.” The officer testified the 77 on the table was in the same style as the
sticker the officer had just found inside the backpack. Additionally, the “scribing tool”
found in appellant’s pocket was consistent with the tool that had made the 77 on the
table.
         Officer Jauregui issued a citation to the driver for possessing the marijuana inside
the console. He did not question the driver about the ownership of the backpack.




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       At the adjudication, Officer Jauregui gave his opinion the marijuana inside the
backpack was possessed for sale. The officer also opined the scribing tool retrieved from
appellant’s pocket and the markers and streakers were the type of equipment used to
deface property.
       2. The defense.
       Appellant testified on his own behalf. He acknowledged he, Eric and a third
youth, were driving in Eric’s car. Officer Jauregui stopped the car after Eric pulled out of
the Jack-in-the-Box restaurant onto Lincoln Boulevard. After Eric parked at the curb,
Officer Jauregui had appellant alight. The officer asked for appellant’s wallet, which
appellant took out of his pocket; it was not inside the backpack as Officer Jauregui
claimed. The wallet contained appellant’s identification and his money, about $62.
The officer then had appellant and the youth in the back seat alight. One by one, the
officer took appellant and the youth previously seated in the back seat to the rear of the
car and also had them sit on the curb.
       After the three youths were seated on the curb, Officer Jauregui searched the car.
The officer recovered the marijuana from the inside of the console. Then the officer
searched the backpack, which at the adjudication appellant claimed belonged to Eric.
Appellant claimed Officer Jauregui had asked him whether the backpack was his, and he
had replied, “No.” The officer spoke to Eric, then let Eric and the other youth go.
The officer drove appellant to the station.
       At the adjudication, appellant claimed the item in evidence, the “scribe” taken
from appellant’s pocket, was a fish tank filter. He said the sticker inside the backpack did
not belong to him.
       Appellant agreed he had not revealed to Officer Jauregui the backpack belonged to
Eric. Appellant explained he did not do so as he believed “it’s not my place to say it’s
someone else’s” and “I just said it wasn’t mine.” He denied selling or possessing
marijuana. He acknowledged the youths had been sitting for five minutes at a table in the
Jack-in-the-Box restaurant. He denied he marked the table and claimed he did not see his
companions carve the 77 into the table.

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        Appellant’s mother testified that shortly after Thanksgiving in 2012, she gave her
son about $60 in cash so that he could purchase a temporary, inexpensive cellphone.
The battery on his existing cell phone was not charging. Appellant’s father testified
appellant had several backpacks, and the father did not recognize the one in court as
appellant’s. The father agreed appellant helped him clean his fish tanks, and the item in
appellant’s pocket might have been an implement appellant had purchased to assist in
cleaning the fish tanks.
        3. The juvenile court’s findings.
        The juvenile court sustained the petition as to counts 1 and 3. It commented as far
as the trial court was concerned, the marijuana could have belonged to both youths,
appellant and Eric. It found Officer Jauregui’s testimony to be credible, and it believed
the backpack belonged to appellant. It said it had a reasonable doubt as to the vandalism
charge alleged in court 2, but it was sustaining count 3, which alleged the possession of
enumerated tools or marking substances with the intent to commit vandalism or to affix
graffiti.
                                      DISCUSSION
        1. The necessity for a Miranda warning.
            a. Background
        Prior to the adjudication, appellant made a motion to suppress the statement made
to Officer Jauregui by appellant acknowledging the backpack was his. The ground for
the motion was appellant’s statement was made during a custodial interrogation in the
absence of a Miranda advisement and a waiver of rights. (Miranda, supra, 384 U.S.
436.)
        During the motion, Officer Jauregui testified that when he stopped the car,
appellant, the right front passenger, immediately got out. Such conduct indicated to the
officer appellant probably did not want to speak to a police offer. Officer Jauregui
ordered appellant to reenter the car, and appellant complied. The officer had the driver
alight. The officer escorted the driver to the rear of the car. The officer saw the gun and


                                             5
examined it and determined it was plastic. Officer Jauregui smelled the odor of
marijuana.
       After the driver was handcuffed and seated at the rear of the car, Officer Jauregui
had appellant and the rear passenger alight. They were escorted individually to the rear
of the car, handcuffed and also seated at the curb. Officer Jauregui and his partner were
present. Neither officer drew a gun during the encounter. When Officer Jauregui
escorted appellant to the rear of the car, he told appellant he was detained pending the
officers’ investigation.
       The officers searched the car’s interior. They found marijuana inside the car.
Officer Jauregui then searched the backpack and found appellant’s identification. At that
point, Officer Jauregui asked appellant whether the backpack was his. It was the first
question posed to appellant.
       Appellant’s adjudication counsel argued the detention was functionally an arrest.
Counsel urged in the circumstances, no reasonable person would believe he was free to
leave, and a Miranda warning was required prior to questioning.
       The prosecutor argued handcuffing was the only factor indicating Officer
Jauregui’s inquiry constituted a custodial interrogation. The handcuffing was not
determinative of an arrest, however, as here, appellant got out of the car initially without
a request, and the officer saw what appeared to be a gun in the car door. These factors
gave the officers a reason to handcuff to protect officer safety. Furthermore, the
marijuana odor required a search giving the officers further reason to handcuff the youths
to ensure they stayed behind the car while the search was conducted. The prosecutor
urged the inquiry concerning the ownership of the backpack was investigatory, not
accusatory.
       Without comment, the juvenile court denied the motion to suppress.




                                              6
           b. The analysis
       The relevant legal principles are as follows.
       “ ‘An interrogation is custodial, for purposes of requiring advisements under
Miranda, when “a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way.” ’ (People v. Moore (2011) 51 Cal.4th 386,
394-395 . . . , quoting Miranda, supra, 384 U.S. at p. 444.) Whether a person is in
custody is an objective test; the pertinent question being whether the person was formally
arrested or subject to a restraint on freedom of movement of the degree associated with a
formal arrest. (People v. Leonard (2007) 40 Cal.4th 1370, 1400 . . . .) ‘[C]ustody must
be determined based on how a reasonable person in the suspect’s situation would
perceive his circumstances.’ (Yarborough v. Alvarado (2004) 541 U.S. 652, 662 . . . .)”
(People v. Linton (2013) 56 Cal.4th 1146, 1167.)
       All the circumstances of the interrogation are relevant to this inquiry, including the
location, length and form of the interrogation, the degree to which the investigation was
focused on the defendant, and whether any indicia of arrest were present. (People v.
Boyer (1989) 48 Cal.3d 247, 272.) Various objective indicia of custody for Miranda
purposes may include the following: “(1) whether the suspect has been formally arrested;
(2) absent formal arrest, the length of the detention; (3) the location; (4) the ratio of
officers to suspects; and (5) the demeanor of the officer, including the nature of the
questioning.” (People v. Forster (1994) 29 Cal.App.4th 1746, 1753; see also, People .v
Lopez (1985) 163 Cal.App.3d 602, 608.)
        “ ‘Whether a defendant was in custody for Miranda purposes is a mixed question
of law and fact. [Citation.] When reviewing a trial court’s determination that a
defendant did not undergo custodial interrogation, an appellate court must ‘apply a
deferential substantial evidence standard’ [citation] to the trial court’s factual findings
regarding the circumstances surrounding the interrogation, and it must independently
decide whether, given those circumstances, “a reasonable person in [the] defendant’s
position would have felt free to end the questioning and leave” [citation].’ (People v.
Leonard, supra, 40 Cal.4th at p. 1400.)” (People v. Moore, supra, 51 Cal.4th at p. 395.)

                                               7
       In our view, there was no custodial interrogation triggering a need for a Miranda
warning and waiver.
       “Miranda warnings are not required ‘simply because the questioning takes place
in the station house, or because the questioned person is one whom the police suspect.’
(Oregon v. Mathiason (1977) 429 U.S. 492, 495 . . . , italics added.)” (Moore, supra,
51 Cal.4th at p. 402.)
       Initially, Eric was detained for a traffic offense. Eric, not appellant, was the car’s
driver. After the officer saw a plastic gun in the car and smelled the odor of marijuana,
the officer wished to search the interior of the vehicle to determine whether the youths
possessed marijuana. In order to safely conduct the search, the officers handcuffed the
youths and had them sit at the curb, presumably while one of the two officers looked on.
The youths were at roadside in a public place when Officer Jauregui made the critical
inquiry of appellant regarding ownership of the backpack. The officers’ conduct was not
overbearing. The officer explicitly explained to appellant he was not under arrest, but he
was detained. It was apparent from the circumstances and the officers’ conduct, the
youths were the subjects of only a brief, temporary detention.
       Only two police officers were present. The officers did not draw their guns.
At the time Officer Jauregui searched the car, the officers were unaware the youths might
have committed malicious mischief with respect to a table in the Jack-in-a-Box. Only a
short period of time had elapsed during the detention prior to Officer Jauregui’s inquiry
of appellant. The inquiry whether appellant owned the backpack was the first inquiry
made of the youths. The nature of the question was investigatory, not accusatory.
       A reasonable person in appellant’s position would not have felt compelled to
answer the question addressed to him. Appellant was not subjected to a coercive, police-
dominated atmosphere, which was Miranda’s concern. In this instance, the Miranda
advisement and waiver was required only after appellant was taken into custody and
transported to the police station.
       The trial court’s denial of the motion to suppress the statement is supported by the
adjudication evidence and the relevant case law on the point.

                                              8
       2. The sufficiency of the evidence.
       In appellant’s other contention, he asserts, “Had [his] statement been properly
excluded, there was insufficient evidence to establish that appellant possessed marijuana
for sale or tools to commit vandalism or graffiti. Reversal of the jurisdictional finding is
therefore required.”
       Appellant’s contention is expressly dependent upon the result of his Miranda
contention above. Appellant argues that without appellant’s statement he owned the
backpack, the evidence is insufficient to sustain the petition and to support the juvenile
court’s orders. As this court has concluded the trial court properly ruled there was no
custodial interrogation and no Miranda warning or waiver was required, we need not
address appellant’s contention of insufficient evidence. Moreover, the evidence adduced
at the adjudication is ample to support the juvenile court’s orders.
                                      DISPOSITION
       The orders under review are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                  KLEIN, P. J.


We concur:


              KITCHING, J.




              ALDRICH, J.




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