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In re H.H.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 9, 2012
B231719 (Cal. Ct. App. Feb. 9, 2012)

Opinion

B231719

02-09-2012

In re H.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. H.H., Defendant and Appellant.

Bruce Zucker, 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, Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. MJ 19654)

APPEAL from an order and judgment of the Superior Court of Los Angeles County, Benny C. Osorio, Judge. Affirmed with directions.

Bruce Zucker, 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, Assistant Attorney General, Michael R. Johnsen and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.

Minor H.H. appeals from the juvenile court's order declaring him a ward of the court and placing him on probation for six months. Appellant argues that certain evidence should have been suppressed for violations of his Miranda and Fourth Amendment rights, and to the extent his Fourth Amendment arguments were not raised below, trial counsel was ineffective. He also argues that the statement of the maximum term of confinement in the court's dispositional order should be stricken. We agree that this should be stricken but affirm the judgment in all other respects.

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).

FACTUAL AND PROCEDURAL BACKGROUND

Mynor Maldonado is a campus supervisor at R. Rex Paris High School, a continuation school in Palmdale that appellant attends. Maldonado's job is to provide security on campus, including taking pictures of students that come on campus, talking to the students about keeping the campus free of tagging (i.e., graffiti), monitoring tagging incidents, monitoring the cameras on campus, and generally monitoring the safety of the students.

Appellant was 16 at the time of the relevant events. Prior to April 18, 2010, appellant had been involved in a classroom incident when students from a rival tagging crew were "messing with" him. Appellant's teacher sent appellant to Maldonado's office when that incident occurred, and appellant told Maldonado that the other students were calling him names and saying they were going to "get him" after school. Appellant belonged to the "FTK" crew, and the rival crew was "KSK."

On or about April 18, 2010, Maldonado found some tagging on a bathroom mirror. "Anoyed" and "FTK" were etched into the bathroom mirror. The etching could have been done with the metal part at the end of a pencil where the eraser is, or a felt tip pin could have been used. Maldonado brought appellant to the tagged bathroom mirror and asked appellant what happened. Appellant responded that he had to "ma[k]e himself present." Maldonado took that to mean appellant had done the tagging. Maldonado searched appellant's backpack and found some sheets of paper that had tagging on them, including appellant's name and the word "Anoy." Maldonado found a second bathroom mirror tagged with "Anoyed." Maldonado asked appellant whether he belonged to the tagging crew, and appellant just smiled.

On May 21, 2010, Detective Lauren Brown responded to Maldonado's call that he had an individual who was suspected of tagging. Detective Brown took appellant to the police station, where he advised appellant of his Miranda rights. Detective Brown proceeded to question appellant, and appellant admitted to tagging.

On July 13, 2010, a petition was filed against appellant alleging five felony counts of vandalism and one misdemeanor count of vandalism. On October 18, 2010, an amended petition was filed against appellant alleging an additional four felony counts of vandalism and one misdemeanor count of possession of tools to commit vandalism. Appellant moved to suppress statements made to Detective Brown, and after a hearing on February 16, 2011, the court denied the motion. The court then commenced the contested adjudication hearing that same day. When Maldonado was asked about appellant's statements to him, appellant's counsel objected on Miranda grounds, and the court overruled the objection.

At the beginning of the second day of the adjudication hearing, appellant admitted four felony counts of vandalism. The court declared appellant a ward of the court pursuant to Welfare and Institutions Code section 602 and placed him on probation for six months in the home of his father. Appellant filed a timely notice of appeal.

All further statutory references are to the Welfare and Institutions Code.
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STANDARD OF REVIEW

When reviewing a trial court's decision on a Miranda issue, we accept the trial court's determination of disputed facts if supported by substantial evidence, but we independently decide whether the challenged statements were obtained in violation of Miranda. (People v. Davis (2009) 46 Cal.4th 539, 586.) Similarly, when reviewing a claim that evidence should have been suppressed based on an unreasonable search or seizure, we apply the substantial evidence standard to the trial court's determination of disputed facts, but we exercise our independent judgment as to the relevant legal principle and its application to the facts as found. (People v. Kraft (2000) 23 Cal.4th 978, 1036.)

DISCUSSION

1. Miranda Issue

Appellant contends that the juvenile court erred in admitting his statements to Maldonado because Maldonado was required to advise appellant of his Miranda rights before questioning him and did not. We disagree.

The prosecution may not use statements from custodial interrogations of defendants unless, prior to questioning, the authorities warned the defendants that they have the right to remain silent, that any statement they make may be used against them, and that they have the right to the presence of an attorney, either retained or appointed. (Miranda, supra, 384 U.S. at p. 444.) The procedural safeguards of Miranda come into play only during custodial interrogations by law enforcement officers. (In re Eric J. (1979) 25 Cal.3d 522, 527.) Custodial interrogation means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." (Miranda, supra, at p. 444.) Further, "'[a] private citizen is not required to advise another individual of his rights before questioning him. Absent evidence of complicity on the part of law enforcement officials, the admissions or statements of a defendant to a private citizen infringe no constitutional guarantees.'" (In re Eric J., supra, at p. 527.)

The juvenile court did not err in admitting appellant's statements to Maldonado. Maldonado was not required to give Miranda warnings because the questioning was not a custodial interrogation by a law enforcement officer. In In re Corey L. (1988) 203 Cal.App.3d 1020, 1024, the court held that school officials need not give Miranda warnings before questioning students about suspected violations of school rules or criminal activity on the ground that this type of inquiry is not a custodial interrogation within the meaning of Miranda. Appellant recognizes the holding of Corey L., but contends that this case is distinguishable because the questioner in Corey L. was a school principal, as opposed to a school security officer like Maldonado, who is more akin to law enforcement than a school administrator. This distinction does not render Corey L. inapplicable or unpersuasive. The Corey L. court described the principal's duties as "maintain[ing] order, protect[ing] the health and safety of pupils and maintain[ing] conditions conducive to learning." (Ibid.) These duties are strikingly similar to Maldonado's duties as a campus supervisor, which required him generally to provide on-campus security and monitor the safety of the students.

Even if Maldonado were more akin to a law enforcement officer, as appellant urges, Maldonado was not required to give Miranda warnings because appellant was not "in custody." For purposes of determining whether a defendant is in custody, "the ultimate inquiry is simply whether there is a 'formal arrest or restraint on freedom of movement' of the degree associated with a formal arrest." (California v. Beheler (1983) 463 U.S. 1121, 1125.) The test is an objective one asking whether a reasonable person in the defendant's situation would have felt that he or she was in custody. (People v. Stansbury (1995) 9 Cal.4th 824, 830.) Here, the record is devoid of evidence that Maldonado physically deprived appellant of freedom of movement, nor does it demonstrate that he exerted any pressure to detain appellant. Appellant was called to Maldonado's office before the tagging was even discovered to discuss the incident in which other students were harassing appellant. The next discussion occurred in the school bathroom where Maldonado showed appellant the tagging and asked appellant what had happened. In neither case was appellant handcuffed or otherwise restrained. Maldonado never told appellant that he could not leave either the office or the bathroom. Maldonado's description of both incidents suggests the questioning was brief and to the point, rather than a prolonged interrogation that might have exerted psychological pressure. In short, there is nothing in the record to show the indicia of arrest or a formal restraint on movement. Maldonado was not required to give Miranda warnings.

2. Search of Appellant's Backpack

Appellant argues that Maldonado violated his Fourth Amendment right against unreasonable search and seizure when he searched appellant's backpack. Appellant has forfeited this issue on appeal because he failed to make this objection in the juvenile court. (People v. Thornton (2007) 41 Cal.4th 391, 427.) Nevertheless, we consider the claim on the merits because of appellant's alternative ineffective assistance of counsel argument. In so doing, we determine that the search did not violate appellant's Fourth Amendment rights and reject his ineffective assistance of counsel claim.

Public school officials are agents of the government to whom the constitutional proscriptions against unreasonable searches and seizures apply. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 336-337; In re William G. (1985) 40 Cal.3d 550, 558, 561.) The standard for searches by school officials "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." (In re William G., supra, at p. 564.) Additionally, the scope of the search and the measures adopted must be "'reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.'" (Ibid., quoting New Jersey v. T.L.O., supra, at p. 342.)

In this case, articulable facts warranted a reasonable suspicion that appellant had been tagging and therefore justified the search of his backpack. Appellant told Maldonado that he was a member of the FTK tagging crew. The tagging on the bathroom mirror said "FTK." When Maldonado showed appellant the tagging and asked him about it, appellant said that he wanted to "ma[k]e himself present." The search was not overly intrusive in that it involved only appellant's backpack, a place in which the small tools needed to etch the tagging might be found. Appellant contends that his statements to Maldonado could not be used to support the search because they were made in violation of Miranda, and the sheets of paper found in his backpack were thus "'fruit[s] of the poisonous tree.'" (See People v. Williams (1988) 45 Cal.3d 1268, 1299.) However, as we determined in part one, there was no violation of Miranda here.

To prevail on an ineffective assistance of counsel claim, appellant must show that counsel's performance fell below an objective standard of reasonableness under prevailing professional norms and that counsel's deficient performance prejudiced the defense, i.e., absent counsel's error, there was a reasonable probability that the result would have been more favorable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688; People v. Jackson (1989) 49 Cal.3d 1170, 1188.) Counsel is not ineffective for failing to raise an objection that would have been fruitless or meritless. (People v. Ochoa (1998) 19 Cal.4th 353, 463; People v. Jackson, supra, at p. 1189.) Here, appellant cannot demonstrate prejudice from counsel's failure to make the Fourth Amendment objection. The juvenile court overruled appellant's Miranda objection to Maldonado's testimony. Appellant's statements to Maldonado provided a substantial basis for searching the backpack. Any Fourth Amendment objection to the evidence from appellant's backpack would have been essentially fruitless and unlikely to result in a more favorable outcome.

3. Appellant's Detention and Arrest by Detective Brown

Appellant contends that his arrest by Detective Brown also violated his Fourth Amendment right against unreasonable search and seizure because it was based solely on his statements to Maldonado and Maldonado's search of his backpack, all of which he argues were illegally obtained.

Appellant has again forfeited this issue on appeal because he failed to make the Fourth Amendment objection below. (People v. Thornton, supra, 41 Cal.4th at p. 427.) We nevertheless also consider this claim on the merits because of appellant's alternative ineffective assistance of counsel argument. We hold that appellant's arrest did not violate the Fourth Amendment and reject the ineffective assistance of counsel argument.

We determined in the foregoing that Maldonado's actions did not violate Miranda or appellant's constitutional right against unreasonable search and seizure. Instead, Maldonado's investigation provided probable cause for Detective Brown to arrest appellant. (See People v. Kraft, supra, 23 Cal.4th at p. 1037 ["An arrest is valid if supported by probable cause"].) "Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (Ibid.) In addition to appellant's statements that (1) he was in FTK and (2) he wanted to make his presence known, the search of his backpack uncovered sheets of paper with tagging that said "Anoy," similar to the tagging on the bathroom mirror. This evidence supported an honest and strong suspicion that he was guilty of tagging the bathroom mirror.

Appellant's claim that trial counsel was ineffective for failing to raise a Fourth Amendment objection to his arrest is unpersuasive because, like his other ineffective assistance of counsel claim, he cannot demonstrate prejudice when such an objection would have been essentially fruitless. (People v. Ochoa, supra, 19 Cal.4th at p. 463; People v. Jackson, supra, 49 Cal.3d at p. 1189.)

4. The Juvenile Court's Statement of Maximum Term of Confinement

Appellant lastly contends that the juvenile court erred in stating a maximum term of confinement, as he was placed in the home of his father on probation. The court's dispositional order stated: "Minor is advised that an adult similarly situated could face up to 5 years in custody." We agree that this statement should be stricken.

When a minor is removed from the physical custody of his or her parent or guardian as a result of an order of wardship under section 602, the court's dispositional order must specify the maximum term of physical confinement that could be imposed upon an adult convicted of the same offense. (§ 726, subd. (c).)

Appellant was not removed from the physical custody of his parent in this case. Accordingly, the necessary predicate for specifying a maximum term of confinement did not exist. In In re Matthew A. (2008) 165 Cal.App.4th 537, 541, we addressed the same issue and concluded that the maximum term of confinement should be stricken from the court's dispositional order. We reasoned as follows: "The sentencing authority of a court in almost all instances is prescribed by statutory law, as it is in this case. The statute did not empower the court to specify a term of imprisonment and that should have been the end of the matter. Yet, as others courts have done, this court nonetheless specified a term, namely the maximum term. Courts utilizing this technique may have the best of reasons, such as 'sending a message' to the juvenile that the transgression was serious. But if the Legislature thought that this should be done, it would have been easy to write the statute to permit this practice. We think it should cease. The criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect. Thus, our order is to strike the specification of a term of imprisonment." (Ibid.) Consistent with our holding in Matthew A., the statement of the maximum term of confinement for an adult in appellant's situation should be stricken from the dispositional order.

DISPOSITION

The statement of the maximum term of confinement is stricken from the court's dispositional order. In all other respects, the judgment is affirmed.

FLIER, J.

WE CONCUR:

BIGELOW, P. J.

RUBIN, J.


Summaries of

In re H.H.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Feb 9, 2012
B231719 (Cal. Ct. App. Feb. 9, 2012)
Case details for

In re H.H.

Case Details

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

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Date published: Feb 9, 2012

Citations

B231719 (Cal. Ct. App. Feb. 9, 2012)