Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. No. PJ46368, Benjamin R. Campos, Juvenile Court Referee.
James M. Crawford, 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 and Idan Ivri, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
The juvenile court sustained a petition alleging that appellant N.M. committed second degree robbery in violation of Penal Code section 211 and grand theft person in violation of section 487, subdivision (c). The court found that appellant was a person described by Welfare and Institutions Code section 602, adjudged appellant to be a ward of the court, and placed him on home probation for a period not to exceed six months.
Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that the probation condition which requires him to submit himself and his residence to search and seizure has no rational relationship to the crime and so violates his Fourth Amendment rights. Appellant further contends that the juvenile court erred in failing to declare whether the grand theft was a misdemeanor or a felony. We remand this matter to the juvenile court for an express declaration that the grand theft was either a felony or a misdemeanor. We affirm the juvenile court's orders in all other respects.
Facts
1. Count 1 robbery
On April 23, 2010, about 4:10 p.m., H.P. was on his way home from school. At the intersection of Hamlin Street and Cedros Avenue in Van Nuys, H.P. saw appellant standing with two other people. H.P. had seen appellant in the past, and appellant had scared him by running toward him and yelling at him in Armenian. H.P. walked by the group and soon noticed that appellant and the others were following him.
Appellant came within inches of H.P.'s face and began yelling at him in Armenian, which H.P. did not understand. H.P. backed away but soon backed into a fence. Appellant continued to yell at H.P. H.P. asked: "What did I do to you in order to do this to me? I'm sorry if I did anything." Appellant continued to yell. H.P. asked: "Do you want money?" Appellant said, "Yes." H.P. offered appellant all the money he had, which was $3. Appellant violently grabbed the money from H.P.'s hand and walked away. H.P. called the police.
2. Count 2 grand theft person
On April 28, 2010, Andrew V. was walking home from school with a bag of chips in his hand. Appellant and another person ran up from behind Andrew. Appellant snatched the chips from Andrew's hand. Andrew went home and told his mother about the incident. Andrew later indentified appellant to the police.
3. Appellant's statements
After being advised of his Miranda rights, appellant agreed to talk with police. He admitted taking the chips from Andrew and eating them. He said he thought it was funny. Appellant also admitted that he knew that H.P. was afraid of him and did not understand Armenian, but that he continued to yell at H.P. He also acknowledged taking H.P.'s lunch money.
Discussion
1. Probation condition
One of the conditions of appellant's probation is: "Submit person, residence or property under your control to search and seizure at any time of the day or night by any law enforcement officer with or without a warrant." Appellant contends that the requirement that he submit to a search of his residence is not reasonably related to his offenses and must be stricken.
Respondent contends that appellant forfeited this objection by failing to object in the juvenile court. (In re Sheena K. (2007) 40 Cal.4th 875, 885-887 [only facial challenges to the constitutionality of a probation condition as a matter of pure law can be brought for the first time on appeal].) We agree.
Appellant contends that if his claim is forfeited, he received ineffective assistance of counsel. We do not agree.
In order to establish a claim of ineffective assistance, appellant must show that his counsel's performance fell below an objective standard of reasonableness, and that, but for counsel's error, a different result would have been reasonably probable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694; People v. Bolin (1998) 18 Cal.4th 297, 333.)
Generally, a condition of probation is only invalid if it has no relationship to the crime the probationer committed, relates to conduct not in itself criminal and requires or forbids conduct that is not reasonably related to future criminality. (People v. Olguin (2008) 45 Cal.4th 375, 379-380.) Within these bounds, the Legislature has given courts broad discretion in crafting reasonable probation conditions that further the ends of justice and reform and rehabilitate the probationer. (Id. at p. 379.)
Requiring a probationer to submit to an enhanced search and seizure regime is a valid condition of probation in many cases. (People v. Robles (2000) 23 Cal.4th 789, 795.) Enhanced search and seizure deters future offenses, promotes rehabilitation, and reduces recidivism. (Ibid.)
Appellant contends that the condition is not related to his offenses because those offenses did not occur inside his home and did not involve contraband which could be readily identified in a search of his home.
Appellant unlawfully took property from others. It is reasonable to think that a thief will hide his stolen property in his home or in his own personal property. Indeed, search and seizure conditions are particularly applicable to probationers who commit theft. (People v. Kasinger (1976) 57 Cal.App.3d 975, 977-978.) Enhanced search and seizure conditions will make it more difficult to conceal stolen property and may deter appellant from further stealing. There is no reason to believe that future thefts by appellant would be limited to the small amount of money or the food which he took in this case. Further, even a small amount of money or food might have distinctive aspects which police could recognize if described by a victim.
Since appellant's condition is valid, counsel acted reasonably in failing to object. If counsel had objected, there would be no reasonable probability of a more favorable result. Accordingly, appellant's claim fails.
2. Grand theft
Appellant contends, and respondent agrees, that the juvenile court erred in failing to declare whether the grand theft was a felony or a misdemeanor. We agree as well.
"If the minor is found to have committed an offense which would in the case of an adult be punishable alternatively as a felony or a misdemeanor, the court shall declare the offense to be a misdemeanor or felony." (Welf. & Inst. Code, § 702; In re Manzy W. (1997) 14 Cal.4th 1199, 1204.) This is true even when the juvenile is ordered home on probation. (In re Manzy W., supra, 14 Cal.4th at pp. 1206-1207.)
The count 2 offense of grand theft person may be punished as either a felony or a misdemeanor. (§§ 487, 489.) The juvenile court did not expressly declare the offense to be a felony or a misdemeanor. The juvenile court did set a maximum confinement period of five years and eight months, which would be consistent with a felony. Setting a felony level maximum term of confinement does not satisfy the express declaration requirement of Welfare and Institutions Code section 702, however. (In re Manzy W., supra, 14 Cal.4th at pp. 1207-1210.) Accordingly, this matter must be remanded to the juvenile court for an express declaration.
Disposition
This matter is remanded to the juvenile court for an express declaration of whether the count 2 grand theft person offense is a felony or a misdemeanor. The juvenile court's orders are affirmed in all other respects.
We concur: MOSK, J., KRIEGLER, J.