People v. M.G., 228 Cal. App. 4th 1268

Background

On March 27, 2013, plainclothes San Francisco officers in an unmarked car observed four juveniles on a high-crime street at night; three appeared to be surrounding a fourth with his back to a wall. Appellant M.G. was one of the three and wore a backpack.
Officers exited the vehicle, announced “Police,” and approached; M.G. looked around, backed toward the wall, and said unsolicited, “I’m not on probation.” He also said “You can’t search me” when asked whether he had a weapon.
Officer Doherty conducted a patsearch, handcuffed M.G. after perceiving evasive movement, lifted M.G.’s backpack and, feeling weight inconsistent with books, opened it and found a .22 Ruger and ammunition.
A juvenile petition charged carrying a concealed firearm (Pen. Code § 25400(a)(2)), loaded firearm in public, and minor possession; the prosecutor initially determined M.G. ineligible for deferred entry of judgment (DEJ).
The juvenile court denied M.G.’s suppression motion, M.G. admitted possession under § 25400(a)(2) but declined to stipulate the offense was a felony under § 25400(c)(4); the court declared wardship and treated the offense as felony-punishable (three-year maximum).
On appeal the court affirmed denial of suppression but held (1) the juvenile court erred in treating the offense as automatically a felony under § 25400(c)(4) without proof/stipulation that M.G. lacked ‘‘lawful possession’’ as defined in Pen. Code § 16750, and (2) the prosecutor’s determination of DEJ ineligibility was erroneous — remand ordered for DEJ proceedings and, if DEJ denied, a section 702 felony/misdemeanor determination.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Motion to suppress: was the stop/detainment and search lawful?	Officers had reasonable basis to approach/detain and to frisk/search based on nighttime, high-crime location, group positioning, evasive behavior, and weight in backpack.	The encounter was coercive/unlawful and the searches (body and backpack) violated the Fourth Amendment.	Denial of suppression affirmed: initial contact could be consensual; alternatively, a justified investigatory detention and protective frisk/backpack search under the circumstances.
2. Classification: May a minor’s mere possession trigger felony classification under Pen. Code § 25400(c)(4)?	The People (AG) argued a minor cannot lawfully possess a concealable firearm (Pen. Code § 29610), so § 25400(c)(4) applies and makes the offense a felony.	M.G. argued the record lacked proof/stipulation that he lacked "lawful possession" as defined in § 16750; minors are not automatically excluded from the § 16750 definition.	Reversed as to automatic felony classification: court held § 25400(c)(4) does not automatically apply to minors absent proof/stipulation that the defendant was not in lawful possession; remand for juvenile court to exercise discretion under Welf. & Inst. Code § 702 whether the offense is a felony or misdemeanor.
3. Deferred Entry of Judgment (DEJ): Was prosecutor’s ineligibility determination proper and forfeited by defense?	People conceded the prosecutor erred but argued M.G. forfeited the issue by not timely objecting; county clerk forms sufficed for notice.	M.G. argued he was improperly denied opportunity to seek DEJ because no proper notice or eligibility determination was made.	Court declined to find forfeiture and ordered remand so M.G. may be considered for DEJ under Welfare & Inst. Code § 790 et seq.; if DEJ granted, findings vacated; if denied, court must decide felony/misdemeanor under § 702.

Key Cases Cited

People v. Saunders, 38 Cal.4th 1129 (addressing suppression standard of review)
People v. Rivera, 41 Cal.4th 304 (officer may approach without implicating Fourth Amendment)
United States v. Drayton, 536 U.S. 194 (consensual encounters and when questioning converts to seizure)
Illinois v. Wardlow, 528 U.S. 119 (nervous, evasive behavior and high-crime area inform reasonable suspicion)
Michigan v. Long, 463 U.S. 1032 (protective searches of containers within suspect’s reach during an investigatory stop)
People v. Letner & Tobin, 50 Cal.4th 99 (investigation purpose is resolving ambiguous conduct; innocent explanations do not negate reasonable suspicion)