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In re J. H.

California Court of Appeals, Second District, First Division
Mar 17, 2011
No. B223535 (Cal. Ct. App. Mar. 17, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from an order of the Los Angeles County Superior Court, No. JJ17502, S. Robert Ambrose, Referee.

Adrian K. Panton, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle, Supervising Deputy Attorney General, Russell A. Lehman, Deputy Attorney General, for Plaintiff and Respondent.


JOHNSON, J.

J. H. appeals from the juvenile court order declaring her a ward of the court, after the trial court denied her motion to suppress evidence and she admitted the allegations of the petition. J. H. argues that the trial court erred in denying the motion to suppress. We affirm, and remand for a correction of a clerical error.

BACKGROUND

A petition filed October 14, 2009 alleged that J. H., a minor, possessed a firearm in a school zone in violation of Penal Code section 626.9, subdivision (b) (count 1); possessed a firearm as a minor, in violation of section 12101, subdivision (a)(1) (count 2); and resisted, obstructed, or delayed a peace officer in violation of section 148, subdivision (a)(1) (count 3). At the adjudication and disposition hearing on March 25, 2010, J. H. moved to suppress the loaded firearm found during a search of her handbag. After an evidentiary hearing, the trial court denied the motion. J. H. then admitted the allegations in the petition. The court dismissed count 2 in the interest of justice, and declared count 1 to be a felony, and count 3 to be a misdemeanor. The court declared J.H. a ward of the juvenile court and placed her home on probation, under certain terms and conditions.

All further statutory references are to the Penal Code unless otherwise indicated.

At the suppression hearing, Los Angeles Police Department Officer Arthur Crescitelli testified that he was assigned to Fremont High School in Los Angeles. On October 13, 2009, Officer Crescitelli and his partner were in the dean’s office on another matter when he saw J. H. Officer Crescitelli asked J. H. why she had not brought back a stolen necklace the week before, as she had promised. J. H. replied that she didn’t have the necklace just then, but would bring it in that Friday, and Officer Crescitelli reminded her that she had promised to bring the stolen necklace in the Friday before.

J. H. said she would have to go and get the necklace, and then said she would show she didn’t have it with her. J. H. started taking things out of her purse. She pulled out a lighter and a small plastic baggie. “[W]hen she brought out the baggie, we said we would have to see the purse and we would have to detain her.” The baggie was “[a]n inch to an inch-and-a-half ziplock, and it is used to hold narcotics, normally marijuana, ” based on Officer Crescitelli’s training and experience. Officer Crescitelli had said he was going to detain J. H. because “[w]hen she pulled out the lighter, she is a minor in possession of the lighter, violation of 308(b) of the Penal Code.”

J. H. became very upset and tried to run past Officer Crescitelli, who testified: “I stuck out my arm, she ran into it, she bounced off my arm and back into the room. My partner and I tried to grab her by her arms to detain her, and she laid back on the desk and was kicking both of us.” After J. H. went from the desk to the table and then to the floor, the officers handcuffed her. Officer Crescitelli’s partner took the purse, looked inside, and said “Partner, there is a gun.” The purse contained a loaded, two-shot derringer. A photograph of the gun and the ammunition was introduced into evidence.

On cross-examination, Officer Crescitelli identified a photocopy he had taken of the lighter; he did not take a photograph of the plastic bag, open it, or look into it. The officers had searched the purse after J. H. said she didn’t want them to search it.

There was no testimony regarding whether the bag was empty. The probation officer’s report dated November 12, 2009 states that the baggie was empty.

The court asked defense counsel whether Officer Crescitelli could search the purse after finding the lighter, and counsel argued that the lighter did not establish reasonable suspicion or probable cause, because it did not violate section 308, subdivision (b). The prosecutor pointed out that Officer Crescitelli also mentioned the baggie, which was in his experience a marijuana baggie and, along with the lighter, would give the officer reasonable suspicion to search the purse. The court rejoined “I agree. I agree. Reasonable search.” Defense counsel continued to argue that Officer Crescitelli’s testimony was that he relied on the lighter, and so the officer had no reasonable suspicion. The court concluded “I have reasonable suspicion that he had reasonable cause and there was reasonable suspicion, ” and denied the motion to suppress.

J. H. filed a timely appeal from the denial of her motion to suppress.

DISCUSSION

“The denial of a motion to suppress evidence brought in juvenile proceedings is reviewable on appeal from the final judgment, even if the judgment is predicated upon the minor’s admission of the allegations of the petition. (Welf. & Inst. Code, § 800, subd. (a).)” (In re Cody S. (2004) 121 Cal.App.4th 86, 90.) “‘In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. We review the court’s resolution of the factual inquiry under the deferential substantial-evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review.’ [Citation.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 145; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738–1739.)

“[S]earches of students by public school officials must be based on a reasonable suspicion that the student or students to be searched have engaged, or are engaging, in a proscribed activity....” (In re William G. (1985) 40 Cal.3d 550, 564.) “[T]his standard requires articulable facts, together with rational inferences from those facts, warranting an objectively reasonable suspicion that the student or students to be searched are violating or have violated a rule, regulation, or statute.” (Ibid.) A police officer assigned to a school is a public school official for Fourth Amendment purposes. (In re Willam V. (2003) 111 Cal.App.4th 1464, 1471.) “‘Reasonable suspicion’ is a lower standard than probable cause. Ultimately, the legality of the search ‘depend[s], simply on the reasonableness, under all the circumstances, of the search.’ [Citations.]” (In re Cody S., supra, 121 Cal.App.4th at pp. 91–92.)

In determining whether a search was reasonable, “[t]he validity of the search does not turn on ‘the actual motivations of individual officers.’ [Citation.] But whether a search is reasonable must be determined based upon the circumstances known to the officer when the search is conducted. ‘[A]lmost without exception in evaluating alleged violations of the Fourth Amendment the [United States Supreme] Court has first undertaken an objective assessment of an officer’s actions in light of the facts and circumstances then known to him.’ [Citations.]” (People v. Sanders (2003) 31 Cal.4th 318, 334.) “‘[A]n action is “reasonable” under the Fourth Amendment, regardless of the individual officer’s state of mind, “as long as the circumstances, viewed objectively, justify [the] action.” [Citation.] The officer’s subjective motivation is irrelevant.’ [Citations.]” (People v. Letner, supra, 50 Cal.4th at p. 145; U.S. v. King (9th Cir. 2001) 244 F.3d 736, 739.)

Officer Crescitelli testified that he said he “would have to see the purse” when J. H. “brought out the baggie, ” and that when J. H. “pulled out the lighter, she is a minor in possession of the lighter, violation of 308(b) of the Penal Code.” On appeal, J. H. argues that possession of a lighter does not violate section 308, subdivision (b), which provides for punishment (by a fine or community service) of any minor “ who purchases, receives, or possesses any tobacco, cigarette, or cigarette papers, or any other preparation of tobacco, or any other instrument or paraphernalia that is designed for the smoking of tobacco, products prepared from tobacco, or any controlled substance....” We have found no published case holding that possession of a lighter by a minor violates section 308, subdivision (b).

Officer Crescitelli’s subjective belief that J. H. violated section 308, subdivision (b) by possessing the lighter is of no moment, however, even if mistaken. Officer Crescitelli also testified that J. H. took out of her purse not only the lighter, but a small ziplock baggie that, based on his training and experience, was used to hold narcotics, usually marijuana. “Courts have held that certain containers are so distinctive in nature that an officer may, based on his experience with such containers in previous arrests, have probable cause to search or seize such a distinctive container in plain view. Examples of such containers are paper bindles [citations], heroin balloons [citation], and brick-shaped packages smelling like marijuana. [Citation.] However, where the container is a common one with legitimate uses, its presence is not enough to establish probable cause. [Citations.]” (People v. Nonnette (1990) 221 Cal.App.3d 659, 666.) “‘[W]hether a common container constitutes a suspicious circumstance, capable of contributing to the totality of the circumstances necessary for probable cause, depends on the total factual context in which the container is observed, including the prior experience of the observing officer with containers of the sort at issue....’” (Id. at p. 667.) An officer’s testimony that he observed a bundle of small baggies and a prescription drug bottle in a purse behind the front passenger seat of a car, which was parked in a high crime area and in which four males had been observed ducking up and down, was sufficient to support probable cause to seize the purse and search the purse or the car. (Id. at pp. 665, 668 [“When combined with the defendants’ conduct in this high drug activity area, the bundle of baggies was inherently suspicious.”].) The officer must testify why he suspects the containers were being used for illicit purposes. “Since the presence of a single, legitimate container is not inherently suspicious, detailed testimony to establish the officer’s reasonable basis for connecting this single container to criminal activity is required.” (Id. at pp. 667–668.)

In People v. Limon (1993) 17 Cal.App.4th 524, the defendant challenged the officer’s probable cause to arrest him and, pursuant to arrest, remove a hide-a-key box from his pocket. The court of appeal agreed with the superior court’s conclusion that the officer had reasonable grounds to detain, pat down the defendant, and look into his pocket after the officer felt an unrecognizable hard, rectangular item in the pocket (and the defendant did not answer when asked what was in his pocket). (Id. at pp. 530, 536.) The court of appeal also concluded that the officer’s visual observation of the hide-a-key box gave the officer probable cause to arrest the defendant and to seize and open the box. Citing People v. Nonette, supra, the court found it sufficient that the officer had seen narcotics in a key case once before, noting that the officer discovered the box in conjunction with other circumstances that suggested the exchange of drugs. (Id. at p. 538.)

Officer Crescitelli’s observation of the baggie, combined with the lighter, constituted articulable facts supporting a reasonable suspicion that J. H. was in possession of marijuana. (See In re Lisa G. (2004) 125 Cal.App.4th 801, 806.) Officer Criscitelli testified that he told J. H. he would have to detain her and see her purse when he saw the baggie, which in his training and experience was the type used to hold narcotics, usually marijuana. The lighter was an additional circumstance supporting an objectively reasonable conclusion that marijuana was involved. Possession of marijuana on school grounds by a minor is a misdemeanor offense. (Health &. Saf. Code, § 11357, subd. (e).)

Officer Crescitelli was aware of facts that would cause a reasonable officer to suspect that J. H. possessed marijuana in violation of the statute. His subjective belief that J. H.’s possession of the lighter violated section 308, subdivision (b), even if mistaken, does not negate the existence of reasonable suspicion, based on the facts known to him, to search J. H. Because we conclude that Officer Crescitelli had the requisite reasonable suspicion to search J. H.’s purse, we conclude that the motion to suppress evidence was properly denied.

J. H. points out that although the petition alleged count 1 as a felony and count 3 as a misdemeanor, and the court orally found count 1 to be a felony and count 3 to be a misdemeanor, the disposition order states that both counts 1 and 3 were declared to be felonies. Respondent concedes the error and agrees that the disposition order must be ordered corrected to reflect that count 3 is a misdemeanor. “Where there is a discrepancy between the oral pronouncement of judgment and the minute order or the abstract of judgment, the oral pronouncement controls.” (People v. Zackery (2007) 147 Cal.App.4th 380, 385.) We therefore order that the disposition order be corrected to reflect that count 3 is a misdemeanor.

DISPOSITION

The denial of the motion to suppress is affirmed. The disposition order is ordered corrected to reflect that count 3 is a misdemeanor.

We concur: MALLANO, P. J., CHANEY, J.


Summaries of

In re J. H.

California Court of Appeals, Second District, First Division
Mar 17, 2011
No. B223535 (Cal. Ct. App. Mar. 17, 2011)
Case details for

In re J. H.

Case Details

Full title:In re J. H., a Person Coming Under the Juvenile Court Law. THE PEOPLE…

Court:California Court of Appeals, Second District, First Division

Date published: Mar 17, 2011

Citations

No. B223535 (Cal. Ct. App. Mar. 17, 2011)