Opinion
A147224
05-09-2017
In re I.O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. Israel O., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. SJ13220214)
Israel O. (the minor) has been a ward of the court (Welf. & Inst. Code, § 602) since 2014. In 2015, the prosecution filed a subsequent wardship petition alleging two felony counts of firearm possession by a minor (Pen. Code, § 29610). The juvenile court denied the minor's suppression motion and found true one allegation he possessed a firearm (§ 29610). The court continued wardship (Welf. & Inst. Code, § 602) and ordered the minor to comply with various probation conditions, including the condition he "[b]e of good citizenship and good conduct."
All undesignated statutory references are to the Penal Code.
The minor appeals. He contends the court erred by denying his suppression motion. He also claims certain probation conditions are vague and overbroad. We strike the probation condition requiring the minor to "[b]e of good citizenship and good conduct." In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In December 2013, the minor admitted misdemeanor receiving stolen property (§ 496, subd. (a)). In February 2014, the court declared wardship (Welf. & Inst. Code, § 602) and placed the minor on probation with various conditions, including a condition barring him from associating with known gang members and another imposing a four-way warrantless search clause. In March 2014, the minor admitted receiving a stolen vehicle (§ 496d, subd. (a)), a felony. In July 2014, the minor violated probation by being at the home of a known gang member.
The minor appealed, challenging the court's failure to make special immigrant juvenile status findings. (See In re Israel O. (2015) 233 Cal.App.4th 279.)
Charges and Motion to Suppress
The 2015 subsequent petition (Welf. & Inst. Code, § 602) alleged two counts of possession of a firearm by a minor (§ 29610). The minor moved to suppress. At the suppression hearing, the parties presented the following evidence:
On June 19, 2015, Alameda County Sheriff's Deputy Gurvinder Gosal — a detective in the gang suppression unit — learned the minor's brother, Christian, was "wanted for an attempt[ed] homicide." When Detective Gosal "had sufficient staff," he intended to conduct a probation search at the house where Christian and the minor lived, to "locate Christian." Detective Gosal knew the minor and his brother were "documented Norteño gang members" and that the minor was on probation and subject to a "four-way search clause."
On June 24, 2015, Detective Gosal had sufficient staff to conduct a probation search at Christian and the minor's house. That afternoon, Detective Gosal and a probation officer were patrolling "gang-saturated areas" of Alameda County. Detective Gosal saw the minor walking down the street. Detective Gosal handcuffed the minor and conducted a probation search, but found no contraband. When questioned by Detective Gosal, the minor "said he was coming from home" and that "Christian was home." At that point, Detective Gosal decided to go to the minor's residence to conduct a "probation compliance check and attempt to contact Christian if he was home."
With the minor handcuffed in the back seat of the patrol car, the officers drove to the minor's house, a distance of between two and four miles. About 20 minutes after first contacting the minor, the officers arrived at the minor's house. The minor stayed in the patrol car and the officers went to the front door. Christian answered the door and asked why the officers were there. Detective Gosal said he was there to do "a follow up probation search." Christian refused to open the door; the officers forced it open, entered the house, and handcuffed Christian.
Detective Gosal asked Christian for the location of the minor's bedroom and Christian pointed to the back of the house. In a makeshift bedroom on the residence's rear patio, Detective Gosal saw a collage of gang graffiti, a framed certificate with the minor's name, and the minor's student identification card. Detective Gosal found a loaded .32-caliber Smith and Wesson revolver between the mattress and the box spring. He also found a loaded .38-caliber semiautomatic handgun and two "air-soft guns" that "looked real." Detective Gosal did not search other areas of the house because he "was focused on the probation search for [the minor]." The entire encounter — from when Detective Gosal detained the minor to when Detective Gosal found the guns — lasted approximately 45 to 50 minutes. Officers arrested the minor.
Ruling and Disposition
At the conclusion of the suppression hearing, counsel for the minor argued the detention "should have ceased" when Detective Gosal searched the minor and "found nothing of legal import on him." According to defense counsel, the detention was "illegally prolonged" and "anything that flowed from that illegally, prolonged detention is the fruit of the poisonous tree." Counsel also argued the probation search clause did not "vitiate" the minor's expectation of privacy. In response, the prosecutor urged the court to deny the suppression motion because the probation search was not arbitrary or harassing, and because the evidence would have inevitably been discovered during a probation search, irrespective of the legality of the detention.
The court denied the motion to suppress, explaining it "had an opportunity to review the cases cited by the minor. Having reviewed those cases, I think the situation here is a little bit different. So while instructive on the law . . . the propositions cited in those cases don't really apply in this case. None of those individuals in . . . the cases were on probation or parole—only one, [and] in that . . . case . . . the defense tried to bring in evidence where [defendant] had been searched six times and . . . on appeal; . . . the searching was harassing and therefore not reasonably related to a law enforcement purpose. [¶] Both counsel agree even if someone is subject to a four-way search clause that they can't be randomly searched or harassed simply because they have that search clause; and if a search condition is going to be imposed and executed, that there be some . . . basis for doing so, or has a connection or is reasonably related to [an] investigation of criminal activity.
"The other cases involved individuals who were detained who weren't subject to a search clause, and [I] think the rulings were correct. When someone is detained for something as minor as a traffic stop, . . . and then once the basis for making that stop has ended[,] . . . the police can't keep the person detained in order to conduct further investigation without some probable cause. So I don't think any of [the minor's cases] apply here. [¶] The Jaime P. [In re Jaime P. (2006) 40 Cal.4th 128] case is really more of a policy-type case, but it does also stand for the proposition that the minors . . . do have that expectation of privacy.
"[W]hen Officer Gosal was driving around he had a probation officer in the car with him, and so it wasn't along the lines that he happened to see [the minor] and decided to search him. He was out there with a probation officer. They were looking for probationers to search. So I don't think that what he did with [the minor] was unreasonable in the sense that he had the authority to search him with or without a search warrant, with or without probable cause at any time of the day or night under the four-way search clause condition. I think he clearly could detain [the minor] upon searching. I think given what he knew about [the minor] and the fact that he [had] gang conditions, [the officer] had reason to believe [the minor] could pose a danger to him. As we all know, nothing was found.
"[T]he distance that [the minor] was transported, even though it was from one municipality to another, it was about two to four miles in distance, so not that far away. And the officer's testimony was that from the time of his initial contact with [the minor] to when they began to search his home was about 20 minutes. [¶] Now, [the minor] was detained longer than that. In fact, my notes indicate he was detained close to an hour. But at the moment that the guns were found they would have had a reasonable basis and probable cause to not only detain him, but to arrest him. And I believe the gun was called in at about 3:10 in the afternoon. The minor is detained at about 2:25. So from the moment he was detained up until the guns are actually called in is roughly 25, 30 minutes. I don't see that as an unreasonable detention. [¶] So even if I were to ignore [the prosecutor's] suggestion . . . independent of that, if a minor's stopped for a search clause, and they only have to travel a couple miles to his house—I think that's reasonable since they found the guns 25 to 30 minutes after detaining him. I don't see it as unreasonable.
"[O]n the issue of taint and/or fruit of the poisonous tree. Nothing was seized from him. Nothing that could be used against him in a criminal case was taken from him. Even if they hadn't detained him, even if they hadn't stopped him, they could have gone to the house and searched the house and found the guns. So the fact that he was detained doesn't really lead to them going to the house. And since he was under a search clause and that search clause included the house[,] I don't see how the fruit of the poisonous tree doctrine applies here. So I do think that inevitable discovery would apply, even if I'm wrong about the issue of whether or not he was detained properly. [¶] So I think on two grounds this search could be justified—one, that I don't think it was [a] prolonged detention; two, that I don't think the fruit from the poisonous tree doctrine applies."
The court found true one allegation the minor possessed a firearm (§ 29610) and continued wardship (Welf. & Inst. Code, § 602). The court placed the minor on formal home probation and imposed various conditions, including the following: (1) "Be of good citizenship and good conduct"; (2) "Attend classes or job on time and regularly"; and (3) "Do not associate with anyone who uses or possesses dangerous nor deadly weapons nor explosive devices nor remain in any vehicle where such weapons are present."
The written conditions in the dispositional order vary slightly from those imposed orally at the sentencing hearing. "Although the traditional rule was that a court's oral pronouncement of probation conditions controlled over the written version, 'the modern rule is that if the clerk's and reporter's transcripts cannot be reconciled, the part of the record that will prevail is the one that should be given greater credence in the circumstances of the case.' " (In re D.H. (2016) 4 Cal.App.5th 722, 725.) Here, we review the dispositional order, in which the " ' "probation conditions are spelled out in detail." ' " (Ibid.)
DISCUSSION
I.
The Court Properly Denied the Motion to Suppress Because the Probation Search Was
Not Arbitrary, Capricious, or Harassing
The minor contends the court erred by denying the motion to suppress. " ' "[P]rivate residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable." [Citations.] . . . Under the Fourth Amendment, a warrantless search of such an area is unreasonable per se unless it falls within a recognized exception to the warrant requirement . . . .' " (People v. Romeo (2015) 240 Cal.App.4th 931, 935.) "Probation . . . searches are among those exceptions. [Citations.] . . . [¶] When the trial court rules on a suppression motion, it ' " '(1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated.' " ' [Citation.] On appeal, we independently review the second and third determinations, but we apply ' " 'the deferential substantial-evidence standard' " ' to the court's determination of the historical facts. [Citation.] Even if our reasoning differs from the trial court's, the trial court's ruling must be upheld if there is any basis in the record to sustain it." (People v. Douglas (2015) 240 Cal.App.4th 855, 860 (Douglas).)
The minor claims Detective Gosal unreasonably prolonged the detention and conducted the probation search "in a harassing or unreasonable manner." According to the minor, the probation search was used as a pretext to "find and arrest Christian, which had nothing to do with rehabilitating [the minor]." We are not persuaded. Where — as here — the law enforcement officer is aware of the probation search condition at the time of the search, a probation search is lawful so long as it is "not conducted arbitrarily, capriciously, or for harassment. [Citation.]" (Douglas, supra, 240 Cal.App.4th at p. 861; People v. Schmitz (2012) 55 Cal.4th 909, 916.) A probation search must also "be 'reasonably related to the purposes of probation.' " (People v. Romeo, supra, 240 Cal.App.4th at p. 950; see Douglas, at p. 861.) A probation search is arbitrary "when the officer's motivation is unrelated to rehabilitative, reformative, or legitimate law enforcement purposes, as when it is driven by personal animosity toward the [probationer]." (People v. Smith (2009) 172 Cal.App.4th 1354, 1362; see People v. Reyes (1998) 19 Cal.4th 743, 753-754 [search may be " 'constitutionally "unreasonable" if made too often, or at an unreasonable hour, or if unreasonably prolonged or for other reasons establishing arbitrary or oppressive conduct by the searching officer' "]; People v. Cervantes (2002) 103 Cal.App.4th 1404, 1408 [probation search is arbitrary "when it is based merely on a whim or caprice"].)
Here, Detective Gosal was motivated by a law enforcement purpose — to ensure probationers' compliance with gang-related conditions of probation. Detective Gosal knew the minor was a Norteño gang member and that the minor had previously violated probation by associating with known gang members. Determining whether the minor, a probationer, was complying with probation conditions is a "legitimate law enforcement purpose." (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1003; People v. Sardinas (2009) 170 Cal.App.4th 488, 497 [parole searches conducted for legitimate law enforcement purposes where officer "was on routine patrol performing his duties as a member of the major crimes task force, which . . . included knowing and making routine contact with parolees in his jurisdiction"]; People v. Reyes, supra, 19 Cal.4th at p. 753 ["purpose of the search condition is to deter the commission of crimes and to protect the public"].)
There is no evidence the probation search was motivated by personal animosity toward the minor, nor that Detective Gosal had searched the minor " 'too often, or at an unreasonable hour.' " (People v. Reyes, supra, 19 Cal.4th at pp. 753-754.) That Detective Gosal also intended to look for Christian at the residence does not demonstrate the probation search was arbitrary, capricious, or harassing. (See People v. Woods (1999) 21 Cal.4th 668, 681 [officer's motive to discover incriminating evidence against a third party residing in the house did not invalidate probation search].)
Nor are we persuaded by the minor's contention that the detention was unduly prolonged and that he should have been released after the search of his person revealed no contraband. This argument fails because it is unsupported by authority, and because it is based on the mistaken premise that Detective Gosal "admitted" he conducted the probation search to arrest Christian, and detained the minor in the patrol car to prevent him from "contacting his brother and warning him that the police were heading to the house." Detective Gosal made no such admission at the suppression hearing. Instead, he explained he went to the residence to perform a "probation compliance check and attempt to contact Christian if he was home." Detective Gosal was entitled to search the minor's home pursuant to the warrantless search clause; he directed his search only to the minor's makeshift bedroom on the rear patio, not other areas of the house. Approximately 45 to 50 minutes — the length of time between the initial detention and the discovery of guns in the minor's bedroom — was not unduly prolonged.
We conclude the probation search was not conducted in a harassing or unreasonable manner and that the detention was not unduly prolonged. Having reached this result, we need not address the parties' remaining arguments regarding the suppression motion.
II.
The Good Citizenship and Good Conduct Probation Condition
Must Be Stricken
The minor challenges the following probation conditions: (1) "Be of good citizenship and good conduct"; (2) "Attend classes or job on time and regularly"; (3) "Do not associate with anyone who uses or possesses dangerous nor deadly weapons nor explosive devices nor remain in any vehicle where such weapons are present"; and (4) the "standard out-of-home" condition.
In his opening brief, the minor also challenged these conditions: "Do not use or possess narcotics, drugs, other controlled substances, related paraphernalia or poisons unless prescribed by a physician"; and "Do not use or possess any deadly weapon or explosive device." In his supplemental brief, the minor agrees "with the Attorney General" these conditions do "not require modification" following California Supreme Court's decision in People v. Hall (2017) 2 Cal.5th 494.
A juvenile court placing a ward on probation "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." (Welf. & Inst. Code, § 730, subd. (b).) While a juvenile court has broad discretion in setting probation conditions, "[a] probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness." (In re Sheena K. (2007) 40 Cal.4th 875, 890.) "A restriction is unconstitutionally vague if it is not ' "sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated." ' " (In re E.O. (2010) 188 Cal.App.4th 1149, 1153.) " 'The underpinning of a vagueness challenge is the due process concept of "fair warning." ' " (People v. Navarro (2016) 244 Cal.App.4th 1294, 1300.) "A restriction failing this test does not give adequate notice—'fair warning'—of the conduct proscribed." (In re E.O., supra, 188 Cal.App.4th at p. 1153.) We review the minor's constitutional challenge to the probation conditions de novo, notwithstanding his failure to object in the juvenile court. (In re Sheena K., supra, 40 Cal.4th at p. 888.)
A. The Citizenship and Conduct Probation Condition Must Be Stricken
The minor contends — and the Attorney General agrees — the condition requiring him to "[b]e of good citizenship and good conduct" is unconstitutionally vague because it requires him to "guess" regarding the meaning of good citizenship and good conduct. We accept the Attorney General's concession and strike the condition as unconstitutionally vague. (In re P.O. (2016) 246 Cal.App.4th 288, 299 [accepting Attorney General's concession that the good behavior condition was not sufficiently precise to give the minor "notice of the conduct expected of him"].)
B. The Attendance Probation Condition Needs No Modification
The minor challenges the probation condition requiring him to "[a]ttend classes or job on time and regularly." According to the minor, the term "regularly" renders the condition vague and overbroad, and could subject him to punishment if he "misses school due to an excused absence, or a family emergency." We disagree. The "reasonable, objective" meaning of this condition is the minor must be at school when it is in session, or at his job when he is scheduled to work, unless his absence is excused. (People v. Forrest (2015) 237 Cal.App.4th 1074, 1080.) That is what is expected of all students and employees, and nothing in the probation condition suggests the court intended to impose additional or different requirements on the minor. We need not modify a probation condition to avoid an absurd interpretation.
C. The Weapons Condition Need Not Be Modified
The dispositional order contains several weapons probation conditions, including the following: "Do not associate with anyone who uses or possesses dangerous nor deadly weapons nor explosive devices nor remain in any vehicle were such weapons are present." The minor contends this condition "should be modified to remove the three 'nor' words so that the condition is intelligible." We decline to modify the condition. A reasonable interpretation of the condition prohibits the minor from knowingly associating with people who use or possess dangerous or deadly weapons, and from being in vehicles where those weapons are present. (See, e.g., In re R.P. (2009) 176 Cal.App.4th 562, 567 [probation condition precluding possession of a dangerous or deadly weapon was "sufficiently precise" and included "the user's unlawful intent in possessing the object"].)
Finally, the minor challenges the "standard out-of-home" condition imposed but stayed at the dispositional hearing. We decline to address the minor's challenge to this condition because minor has not been placed "out of home." --------
DISPOSITION
The dispositional order is modified to strike the probation condition requiring the minor to be of good citizenship and good conduct. As modified, the dispositional order is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Simons, J. /s/_________
Bruiniers, J.