Opinion
E050628 Super.Ct.No. J230942
08-18-2011
In re A.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.L., Defendant and Appellant.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from the Superior Court of San Bernardino County. Gregory S. Tavill, Judge. Affirmed.
Johanna R. Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.
The juvenile court found true that Minor A.L. committed misdemeanor vandalism (Pen. Code, § 594, subd. (b)(1)) and misdemeanor possession of tools to commit vandalism or graffiti (§ 594.2, subd. (a)). Minor was thereafter declared a ward of the court and placed on probation for a period of one year on various terms and conditions.
All future statutory references are to the Penal Code unless otherwise stated.
The court found not true the allegation that Minor violated curfew.
On appeal, Minor contends (1) the juvenile court erred in denying his suppression motion pursuant to Penal Code section 1538.5 and Welfare and Institutions Code section 700.1; (2) the true finding that he was in possession of tools to commit vandalism or graffiti must be reversed because, as a matter of law, the object he possessed is not a prohibited item under Penal Code section 594.2; and (3) the curfew probation condition is unconstitutional and should be modified. We reject these contentions and affirm the judgment.
Welfare and Institutions Code section 700.1 applies to motions brought in juvenile court to suppress evidence obtained as the result of an unlawful search or seizure and is the counterpart to Penal Code section 1538.5 in adult proceedings. (In re Ricardo C. (1995) 37 Cal.App.4th 431, 435.)
I
FACTUAL BACKGROUND
On December 19, 2009, about 10:31 p.m., Chino Police Department Officer Andrew Bernath was on routine patrol with his partner, Officer Nobel, when he was dispatched to an area on Riverside Drive in regard to three individuals possibly tagging a wall. The description of the possible taggers was three juveniles walking eastbound on Riverside Drive toward Yorba Avenue; one was dressed in a black shirt, and one had glasses. The officers arrived at the location in less than two minutes and saw three juveniles matching the descriptions given by the dispatcher. The juveniles were almost to the southbound sidewalk of Yorba Avenue from Riverside Drive. No one else in the area was walking in that direction. Minor was one of the three juveniles.
The officers made contact with the juveniles and told them to "stop." The juveniles complied and walked toward the officers. Officer Bernath had them sit on the curb and did not tell them that they were free to leave. At that point, Officer Bernath acknowledged, the minors were being detained. Officer Bernath then asked Minor for his identifying information. After determining Minor was a juvenile, Officer Bernath concluded Minor was in violation of the curfew law.
As Minor sat down, Officer Bernath noticed that he was in possession of a pair of black knit gloves; the gloves had silver spray paint on the fingertips. The gloves were in plain view of Officer Bernath, since Minor had placed the gloves on the curb where he was sitting. The gloves had caused Officer Bernath to be suspicious that criminal activity had occurred.
Officer Bernath subsequently searched Minor for officer safety reasons. During the patdown search, Officer Bernath "felt a . . . small, hard, sharp object" in Minor's pants pocket. Officer Bernath removed the item from Minor's pocket, believing it could have been a weapon such as a screw, nail, or thumbtack, that could be used to puncture the skin. Officer Bernath explained that, based on his training and experience, "tagging crews sometimes operate as gangs with numerous members at one time, . . . mostly at nighttime so they can use the cover of darkness." Officer Bernath also stated that taggers often carry weapons to protect themselves from rival gangs.
The object was the nozzle tip from a spray paint can. Officer Bernath believed that a spray paint nozzle could be used as a weapon. He explained that, based on his training and experience, "many things that you can least expect to be used as a weapon could be used as a weapon to . . . puncture your skin, cut whatever. There are many times people sharpen anything made out of plastic. Any common object [that is small and sharp] could be used as a weapon." Officer Bernath also stated that an individual would carry spray paint nozzle tips in case the spray paint nozzles "get clogged up" and also to paint varying degrees of lines.
Officer Bernath also noticed silver spray paint on the lower right hand corner of Minor's shirt, as well as black spray paint on Minor's right middle finger. In searching the area, Officer Bernath found silver paint in the area, as well as a can of spray paint.
The officers thereafter spoke to the minors individually. The minors were not under arrest; the officers had not drawn their guns; and the officers did not have their handcuffs, tear gas, or baton displayed. They spoke to the minors in a conversational tone and did not yell at them. They also did not tell the minors that they were going to jail. Officer Bernath asked Minor if he had come from the area where the graffiti had taken place or if he knew anything about the graffiti. Minor admitted that he had spray painted his moniker "Taser." Minor also admitted that his two friends had also spray painted their monikers on a truck and a wall. The officer noticed that "Taser" was painted in silver and black.
Subsequently, after Minor waived his constitutional rights, Officer Bernath formally interviewed him. Minor again admitted to committing the vandalism. He explained that as he and his friends were walking, they had spray painted their monikers on a truck and a wall.
Minor was arrested around 10:40 p.m.
II
DISCUSSION
A. Motion to Suppress
Following argument from counsel, the juvenile court denied Minor's suppression motion. The court found the detention was proper, and the patdown search was proper under a search incident to an arrest.
Minor contends the juvenile court erred in denying his suppression motion because the patdown search was constitutionally unreasonable and not incident to a lawful arrest. He further contends that his postsearch confessions and observations were derived from "exploitation" of the illegal search, and therefore the court erred in failing to suppress the evidence.
In reviewing the denial of a motion to suppress evidence, we defer to the trial court's express or implied factual findings where supported by the evidence and exercise our independent judgment in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment. (People v. Weaver (2001) 26 Cal.4th 876, 924.) "The trial court also has the duty to decide whether, on the facts found, the search was unreasonable within the meaning of the Constitution. . . . [I]t becomes the ultimate responsibility of the appellate court to measure the facts, as found by the trier, against the constitutional standard of reasonableness." (People v. Lawler (1973) 9 Cal.3d 156, 160, fn. omitted.) Additionally, it is established that "'"a ruling or decision, itself correct in law, will not be disturbed on appeal merely because given for a wrong reason. If right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." [Citation.]' [Citation.]" (People v. Zapien (1993) 4 Cal.4th 929, 976.)
The Fourth Amendment prohibits seizures of persons, including brief investigative detentions, when they are "'unreasonable.'" (People v. Souza (1994) 9 Cal.4th 224, 229.) In order to pass constitutional muster, a detention must be "based on 'some objective manifestation' that criminal activity is afoot and that the person to be stopped is engaged in that activity." (Id. at p. 230.) In arguing that the juvenile court erred in denying his motion to suppress, Minor does not challenge the legality of the initial stop and his ensuing detention. Rather, he focuses solely on the patdown search, arguing that it was more intrusive than legally permissible under the Fourth Amendment.
Whether a patdown search is unreasonable for Fourth Amendment purposes is assessed under Terry v. Ohio (1968) 392 U.S. 1 [88 S.Ct. 1868, 20 L.Ed.2d 889] (Terry). "When an officer [lawfully] detains a suspect, the officer may pat down the suspect's outer clothing if he or she has reason to believe the suspect may be armed." (Giovanni B. v. Superior Court (2007) 152 Cal.App.4th 312, 320, citing Terry, at p. 30.) A frisk for weapons is not justified unless the officer can point to specific and articulable facts which, considered in conjunction with rational inferences to be drawn from those facts, give rise to a reasonable suspicion that the suspect is armed and dangerous. (Terry, at p. 21.) "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." (Id. at p. 27.)
In evaluating the validity of an officer's investigative or protective conduct under Terry, the "touchstone of our analysis . . . is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109 [98 S.Ct. 330, 54 L.Ed.2d 331].) A court looks to the totality of the circumstances in determining the reasonableness of a challenged search. (Terry, supra, 392 U.S. at pp. 24, 27.) "The judiciary should not lightly second-guess a police officer's decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations." (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
Officer Bernath's patdown search of Minor did not violate his Fourth Amendment protection from unreasonable searches. Officer Bernath, who was dispatched in regards to three juveniles tagging a wall at about 10:31 p.m., testified that tagging crews often carry weapons. He further stated that he had performed the patdown search to ensure his own safety during the lawful detention. The officer's patdown search is justified by the need to "pursue an investigation without fear of violence," not necessarily to unearth evidence of a crime. (Adams v. Williams (1972) 407 U.S. 143, 146 [92 S.Ct. 1921, 32 L.Ed2d 612].) Upon conducting the patdown search of Minor, Officer Bernath "felt a . . . small, hard, sharp object" in Minor's pocket. Officer Bernath removed the object, believing it may be a weapon, such as a knife, a screw, a nail, a thumbtack, or another weapon used to puncture the skin. These circumstances are sufficient to surpass the threshold of reasonable suspicion to warrant a patdown search for weapons incident to a legal detention.
We agree with the parties that the juvenile court here erred in finding that the search was incident to a lawful arrest, since the search occurred before Minor was arrested. In addition, the juvenile court's ruling was inconsistent to its earlier finding that Minor was not under arrest or subject to custodial interrogation when questioned shortly after the search for purposes of Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].
Minor argues that "the juvenile court made an express finding that [Officer] Bernath's belief [that the spray paint nozzle was a weapon] was unreasonable." Minor's interpretation of the record is in error. We believe that the juvenile court's comment in relation to whether the spray paint nozzle could reasonably be a weapon was based on after the removal of the object from Minor's pocket. The court stated, "I think it's unlikely that anybody would consider that nozzle a weapon." However, prior to its removal, there is no evidence to suggest that the officer had any knowledge of what the object might have been. Officer Bernath testified that the object he felt reasonably appeared to be a weapon. He explained that based on his training and experience, many objects that are small and sharp could be used as weapons to puncture or cut the skin.
When we consider the totality of the circumstances, we conclude that the situation confronting Officer Bernath presented him with specific and articulable facts from which a reasonably prudent officer could conclude that his safety was threatened. Therefore, the patdown search in the instant case did not violate Minor's Fourth Amendment rights.
B. Violation of Section 594.2
Minor next contends that the true finding that he was in possession of tools to commit vandalism or graffiti must be reversed because, as a matter of law, the spray paint nozzle tip he possessed is not a prohibited item under section 594.2. We disagree.
Section 594.2 provides, "(a) Every person who possesses a masonry or glass drill bit, a carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe, an aerosol paint container, a felt tip marker, or any other marking substance with the intent to commit vandalism or graffiti, is guilty of a misdemeanor. [¶] . . . [¶] (c) For the purposes of this section: [¶] . . . [¶] (2) 'Marking substance' means any substance or implement, other than aerosol paint containers and felt tip markers, that could be used to draw, spray, paint, etch, or mark." (Italics added.)
The gist of Minor's argument is that because a spray paint can nozzle tip, "standing alone," cannot be used to paint if not attached to a spray paint can, it is not one of the items the Legislature intended to prohibit when it enacted section 594.2. Possession of spray paint can nozzle tips could constitute a violation of section 594.2, if possessed with the requisite intent. Contrary to Minor's argument, we find no ambiguity in the statute. Accordingly, we need not apply the myriad of rules of statutory interpretation invoked by Minor. (People v. Cargill (1995) 38 Cal.App.4th 1551, 1555 [when statute is clear and unambiguous it requires no construction]; see also People v. Hill (1995) 37 Cal.App.4th 220, 224.)
The Legislature broadly defined "'[m]arking substance'" as "any . . . implement . . . that could be used to draw, spray, paint, etch, or mark." (§ 594.2, subd. (c)(2).) Section 594.2, subdivision (a) includes as a specific item, an aerosol paint container; section 594.2, subdivision (c) excludes aerosol paint containers, presumably because it is addressed in section 594.2, subdivision (a), and it defines a "marking substance" as any implement which is used to paint. We find that the legislative intent in drafting section 594.2, subdivision (c) was to include items that would constitute components of spraying paraphernalia, specifically, a nozzle tip. The spray paint can nozzle tip possessed by Minor is plainly an implement that could be used to spray or paint. There is abundant evidence Minor possessed the tip with the intent to commit vandalism or graffiti. He was one of a group stopped by the officers following a dispatch call that three juveniles were seen tagging a wall; there was fresh graffiti and a spray paint can near the area; he had fresh paint on his gloves, his middle fingertip, and the corner of his shirt; and he admitted to spray painting his moniker on a wall and a truck with his.
C. Curfew Probation Condition
Minor next contends the curfew probation condition is unconstitutional. This condition required Minor to "[b]e home every night by curfew and not leave home unless accompanied by parent/guardian or with probation officer's prior permission." He argues the curfew curtails his freedom of movement and is constitutionally overbroad. He further argues the curfew condition is not carefully tailored and reasonably related to any compelling state interest and therefore restricts his right to freedom of movement and his parent's or guardian's due process rights to rear him without governmental interference.
Minor concedes he did not object to the curfew condition but asserts his constitutional overbreadth challenge presents a question of law and therefore is not forfeited by failure to object. Alternatively, he requests that we exercise our discretion to review the claim and strike or modify the curfew condition.
The doctrine of forfeiture on appeal applies if the objection involves a discretionary sentencing choice or unreasonable probation conditions "premised upon the facts and circumstances of the individual case." (In re Sheena K. (2007) 40 Cal.4th 875, 885, 889.) However, Sheena K. clarified that the forfeiture doctrine does not apply to a challenge to a probation condition on constitutional grounds of vagueness or overbreadth where the issue presents a pure question of law capable of being resolved without reference to the particular sentencing record developed in the trial court. (Id. at p. 887.)
Here, Sheena K. compels the conclusion that Minor forfeited any claims as to the reasonableness of the curfew condition. The parties dispute whether the overbreadth and constitutional challenges here are a pure question of law. Assuming, arguendo, the claims are forfeited, we consider the merits of the claim to obviate any future ineffective assistance of counsel claim.
Pursuant to Welfare and Institutions Code section 730, subdivision (b), the juvenile court "may impose and require any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced." The court has broad discretion in formatting juvenile probation conditions, and may impose a condition that is reasonable for a juvenile although it is not reasonable for an adult. (In re R.V. (2009) 171 Cal.App.4th 239, 246-247.) The court may also impose a condition that infringes on constitutional rights so long as that condition is tailored specifically to meet the needs of the juvenile. (In re Tyrell J. (1994) 8 Cal.4th 68, 81.) This power of the juvenile court is founded on the notion that the state functions as the Minor's parent once the Minor is adjudged a ward of the court. Thus, in determining a question such as whether a juvenile's probation condition is constitutionally overbroad, we look to whether that condition "is consistent with the rehabilitative purpose of probation and constitutional parental authority." (In re Frank V. (1991) 233 Cal.App.3d 1232, 1243.)
Welfare and Institutions Code section 729.2 provides in relevant part: "If a Minor is found to be a person described in Section 601 or 602 and the court does not remove the Minor from the physical custody of the parent or guardian, the court as a condition of probation, except in any case in which the court makes a finding and states on the record its reasons that that condition would be inappropriate, shall: [¶] . . . [¶] (c) Require the Minor to be at his or her legal residence between the hours of 10:00 p.m. and 6:00 a.m. unless the Minor is accompanied by his or her parent or parents . . . ."
Welfare and Institutions Code section 729.2 "serve[s] as a floor, not a ceiling, for juvenile probation conditions." (In re Walter P. (2009) 170 Cal.App.4th 95, 99-100, citing In re Jason J. (1991) 233 Cal.App.3d 710, 719 [affirming probation condition requiring curfew from 'dark' to 6 a.m.], disapproved on other grounds in People v. Welch (1993) 5 Cal.4th 228, 237; see also In re Laylah K. (1991) 229 Cal.App.3d 1496, 1499, 1502 [affirming probation condition requiring 8:00 p.m. to 5:00 a.m. curfew].) A curfew condition more restrictive than that in Welfare and Institutions Code section 729.2 may be imposed within the court's discretion to serve the court's mission to rehabilitate the Minor and strengthen family ties. (Walter P., at p. 102.) In Laylah K., the curfew condition was upheld against constitutional challenge where it was tailored to the Minor's gang involvement and need for greater parental supervision. (Laylah K., at p. 1502.)
Based on the record before us, the curfew condition was tailored to Minor's need for parental supervision. The record indicates that Minor was out past curfew when the current incident occurred. In addition, Minor is in need of greater parental control. His social history indicates that he had not lived with his mother in years, and his father had never been in his life. At the time the current offenses occurred, Minor had been residing with his adult sister. Minor's current use of alcohol and past use of marijuana, in addition to the circumstances involved in his committing the instant offenses, support the court's implied determination that greater parental supervision was necessary. Moreover, there is no evidence in the record that the effect of the court-imposed curfew was to curtail Minor's freedom of movement. Minor has failed to establish any constitutional violation as a result of the curfew imposed.
Minor believes that the curfew condition as written means "he must remain confined to his home at all times" unless accompanied by his mother or guardian or he has the prior permission of his probation officer and argues that this is an infringement upon his mother's or guardian's constitutional right to raise him and upon his right to be raised by his mother or guardian. The People do not directly address Minor's interpretation but appear to assume that, since Minor was not placed on house arrest, the curfew condition "merely states that he must be home by curfew and cannot leave after curfew unless accompanied by a parent or guardian or with permission from his probation officer." The People further note, "If the provision forb[ade] [Minor] from ever leaving his house, it would be unnecessary to state that he must be home by curfew." For several reasons, we reject Minor's interpretation of the condition, as well as his argument that it is unconstitutional.
First, the condition imposed here closely mirrors a provision in Welfare and Institutions Code section 729.2, which specifies one of the conditions of probation a court must impose upon a Minor who has been determined to be a person described in section 602: "Require the Minor to be at his or her legal residence between the hours of 10:00 p.m. and 6:00 a.m. unless the Minor is accompanied by his or her parent or parents, legal guardian or other adult person having the legal care or custody of the Minor." (Welf. & Inst. Code, § 729.2, subd. (c).) This does not mean that Minor must be accompanied everywhere by an adult every minute of every hour of every day; it means that he must be home by curfew, or 10:00 p.m. at night; must stay there until 6:00 a.m.; and may not leave during those hours unless his mother or guardian is with him. At other times, he may be outside the home without his mother or guardian. While the statute can be viewed, indirectly at least, as burdensome to Minor's mother as well as to Minor in the sense that the mother must accompany her son outside the home during the specified hours, it is not unconstitutional. It is a provision designed to help prevent Minor's return to criminal activity. (See In re Damian M. (2010) 185 Cal.App.4th 1, 6-7.) As Minor himself notes, a primary purpose of juvenile law is to preserve and strengthen family ties whenever possible. Requiring Minor and his mother or his sister to be together at night serves this purpose.
Second, insofar as Minor complains that the condition infringes upon his mother's right to freely manage the rearing of her son, and his own right to be raised by his mother, he is correct. The condition does limit these freedoms. But that does not make it unconstitutional either. It is because of his criminal behavior, and arguably at least partly through his mother's failure to supervise him properly, that Minor has become a ward of the court. Moreover, Minor's argument fails to take into account the fact that in his case, he was not being raised by his mother. Minor asserted that "[h]e has not resided with his mother for a few years." While an order adjudging a Minor a ward of the court is not a criminal conviction, but more in the nature of a "guardianship," one of its primary purposes is to "supplant parental supervision which has been lacking . . . ." (In re Schubert (1957) 153 Cal.App.2d 138, 141.) When parents have lost control over a delinquent child, a court is justified in asserting greater supervision over the child's actions. (See In re Laylah K., supra, 229 Cal.App.3d 1496, 1501-1502.) Here, there is little doubt that parental supervision has been lacking. Minor's history includes truancy, use of illegal drugs and alcohol, fighting at school, a failing academic record, and being in a tagging gang, but Minor's mother did not even realize that her son had been involved in gangs, drugs, or alcohol.
Although it is true that the court here could have placed Minor on summary probation, as recommended by the probation officer, Minor's past and current conduct reveals that the court needs to keep track of him and his behavior to determine whether this disposition remains appropriate. The court does this through the probation officer. (In re Arron C. (1997) 59 Cal.App.4th 1365, 1371.) In this case, close supervision by a probation officer is especially appropriate. The vandalism offense was committed past curfew. Minor's mother was unaware of Minor's whereabouts on the date and at the time of the crime, and was "extremely surprised by his involvement in this offense." It is not unreasonable that Minor obtain the permission of the probation officer when he proposes to engage in any activity outside the home. If he wishes to do things like those he mentions in his brief -- work at a job, attend a school program, visit relatives, run family errands, or "spend time with friends" -- he will have to inform his probation officer of his plans and ask permission to participate in the proposed activity.
Finally, we note that Welfare and Institutions Code section 729.2 does not "purport to limit the probation conditions the juvenile court may fashion to serve the court's purpose of rehabilitation and preservation of family ties." (In re Walter P., supra, 170 Cal.App.4th at p. 99.) As previously noted, it "serve[s] as a floor, not a ceiling, for juvenile probation conditions." (Ibid.) In view of his entire social history, a condition that requires Minor to be at home during curfew hours unless accompanied by a parent or with the permission of his probation officer to be elsewhere is narrowly tailored to further these goals as well as the important interest of public safety. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.)
Minor relies upon In re James R. (2007) 153 Cal.App.4th 413, 428-429, but the case is not apt. James R. concerned a juvenile court's delegation to a private therapeutic program all decisions regarding family visitation for a Welfare and Institutions Code section 602 ward placed in a sex-offender treatment facility. (James R., at pp. 417-418.) The appellate court found that such delegation constituted an abuse of discretion and violated the constitutional separation of powers. (Id. at p. 443.) This case has nothing to do with visitation or with inappropriate delegation of rights of contact between a mother and her son to a private entity or individual. It has to do with the court's ability to supervise the behavior of its ward.
Accordingly, we reject Minor's contention that the curfew condition here is unconstitutional and should be modified.
III
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur: HOLLENHORST
Acting P.J.
CODRINGTON
J.