Opinion
B231503
09-27-2011
In re M.W., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.W., Defendant and Appellant.
Stephen Borgo, 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, Assistant Attorney General, Victoria B. Wilson and James William Bilderback II, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. PJ45424)
APPEAL from a judgment of the Superior Court of Los Angeles County. Morton Rochman, Judge. Affirmed.
Stephen Borgo, 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, Assistant Attorney General, Victoria B. Wilson and James William Bilderback II, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant M.W. appeals from the judgment declaring him a ward of the juvenile court under Welfare and Institutions Code section 602. The juvenile court sustained a petition, filed on May 10, 2010, alleging that appellant possessed a weapon on school grounds, a felony, in violation of Penal Code section 626.10, subdivision (a)(1). Appellant admitted the allegation in an earlier petition, filed on October 14, 2009, that he committed a battery, a misdemeanor, in violation of Penal Code sections 242 and 243. Based on both counts, the court placed appellant on home probation for an aggregated confinement time of three years, two months.
On appeal, appellant contends the juvenile court erred in denying his motion to suppress and by failing to declare his weapon possession offense as a felony or misdemeanor. We affirm.
FACTS
On March 9, 2010, at about 12:25 p.m., appellant and four or five other boys entered a gymnasium restroom at Antelope Valley High School. At that time, the entrance to the restroom was being "consistently" monitored by a school official through a live video surveillance camera. The surveillance system was installed because "there's a lot of activity in that restroom." The restroom had been empty for five to ten minutes before the boys entered. While the boys were inside the restroom, a school security guard entered. The guard announced over his radio that there was "a strong odor of marijuana." He then directed the boys out of the restroom. The total time spent by the boys in the restroom was about a minute to a minute and a half. As the boys left the restroom, they were met by another security guard, who noticed "a heavy stench of weed" as he approached the restroom.
The guards escorted the boys to the school security office and, based on their suspicion of "drug paraphernalia" possession, searched each one. A knife with a three-inch blade was found in appellant's back pocket. A school official explained: "If security is in the restroom and there's an odor of marijuana and there's a group of kids in there, you know, it's standard we're going to take that group of kids to make sure they're not the ones in possession or smoking marijuana."
DISCUSSION
I. Motion to Suppress
Appellant contends the juvenile court erred in denying his motion to suppress the knife seized during the search, made pursuant to Welfare and Institutions Code section 700.1. He argues the search was illegal because it was not based on a reasonable suspicion that he was engaged in illegal activity, and therefore the knife was inadmissible.
In reviewing a motion to suppress, we defer to the trial court's factual findings if they are supported by substantial evidence, but consider questions of law independently. (People v. Alvarez (1996) 14 Cal.4th 155, 182; People v. Williams (1988) 45 Cal.3d 1268, 1301.) Whether an officer subjectively believed that a person was involved in criminal activity is a question of fact, subject to the substantial evidence test. (People v. Leyba (1981) 29 Cal.3d 591, 597-598.) Whether it was objectively reasonable for the officer to entertain that suspicion is a question of law, reviewed de novo. (Ibid.)These same standards of review apply to juvenile cases. (In re Lisa G. (2004) 125 Cal.App.4th 801, 805; In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738-1739.)
Under both the Fourth Amendment and the California Constitution, a search of a student by school officials is warranted at its inception "when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school." (New Jersey v. T.L.O. (1985) 469 U.S. 325, 342; accord, 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." (In re William G., supra, at p. 564.) Because of the unique characteristics of the school setting, where officials are responsible for the safety and welfare of their students, a lower standard of reasonableness applies, rather than the heightened standard of probable cause. (Id. at p. 562.)
Here, there was sufficient evidence to support the conclusion the security guards had a reasonable suspicion of illicit drug use. First and foremost, the guards smelled the "strong" odor of marijuana coming from the restroom at issue, which had been empty for five to ten minutes before appellant's entrance. As the People note, "it is difficult to imagine stronger circumstantial evidence of drug use than a group of five or six high school boys standing amidst the stench of marijuana in a restroom notorious for such illicit activity." Indeed, the guards were complying with an established school policy that when a group of students is in a restroom that has an odor of marijuana, those students must be searched.
Additionally, the congregation of five or six boys in a restroom with a history of drug use supports a reasonable suspicion of wrongdoing. In In re Bobby B. (1985) 172 Cal.App.3d 377, a school's dean was making morning rounds checking for possible illicit activities when he found two boys in a restroom without the required hall passes. Aware of narcotics activity in the school's restrooms, the dean grew suspicious when the minor became nervous and faltered in answering the dean's simple questions. (Id. at p. 380.) The dean searched the minor and found marijuana cigarettes and cocaine in the minor's wallet. (Ibid.) The appellate court found the search was justified, and held that the minor's motion to suppress evidence was properly denied. (Id. at p. 383; see also Illinois v. Wardlow (2000) 528 U.S. 119, 124 [an area's reputation for criminal activity is an articulable fact in support of a reasonable suspicion].)
Appellant's additional argument that he was improperly "singled out" to be searched based on a "hunch" that was not particularized to his actions is without merit. The evidence showed that all of the boys were searched. The guard who searched appellant and found the knife testified that he searched appellant by "happenstance" and did not deal with the other boys.
We are satisfied that the smell of marijuana and the congregation of several boys in a restroom where drug activity routinely takes place is sufficient to support the guards' reasonable suspicions of illicit drug activity and justifies their search of the boys. The juvenile court did not err in denying appellant's motion to suppress the knife seized during the search.
II. Declaration of Felony
Appellant contends the case should be remanded because the juvenile court failed to declare whether the weapon possession offense was a felony or misdemeanor.
Possession of a knife on school grounds is a wobbler offense, punishable as either a misdemeanor or a felony. (Pen. Code, § 626.10, subd. (a)(1); In re William V. (2003) 111 Cal.App.4th 1464, 1468, fn. 2.) Section 702 of the Welfare and Institutions Code provides that "[i]f 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." The juvenile court did so here.
During the adjudication hearing, the court stated: "I should also say that the charge here is weapons on school grounds. You may already know that, but I'm going to put it on the record. It's a Penal Code violation, 626.10(A)(1), as a felony." (Italics added.) Later, during the disposition hearing, the nature of the offense as a felony was confirmed during the following exchange with the prosecutor, Los Angeles County Deputy District Attorney Hailey Singh: "Ms. Singh: 626.10(A)(1), felony, locking blade on school grounds. [¶] The Court: Which was admitted in the court in No. 286? [¶] Ms. Singh: Yes. [¶] The Court: Thank you. With that petition and this petition confinement time aggregated three years two months." Immediately prior to this conversation, the court noted that the misdemeanor allegation in the earlier October 14, 2009 petition carried a maximum confinement time of six months. We agree with the People that "[i]t follows that the court ordered a felony-level sentence of more than one year for the weapon possession offense." While the setting of a felony-level period of confinement cannot alone satisfy section 702 (In re Manzy W. (1997) 14 Cal.4th 1199, 1207-1208), it corroborates the court's unambiguous declaration during the adjudication hearing that appellant's offense was a felony.
Appellant argues that the case should be remanded because the record as whole does not indicate whether the juvenile court was aware of its discretion to treat the offense as either a felony or misdemeanor, relying on Manzy W., supra, 14 Cal.4th at page 1209. There, our Supreme Court found that the juvenile court violated Welfare and Institutions Code section 702 by failing to state whether the offense was a felony or misdemeanor, and there was nothing in the record to indicate that it ever considered whether the offense was a felony or misdemeanor. The Court explained that the purpose of the required declaration is to ensure that the juvenile court "is aware of, and actually exercises, its discretion." (Manzy W., supra, at p. 1207.) But unlike the juvenile court in Manzy W., which never used the word "felony" at any of the proceedings, the juvenile court here stated that appellant's offense was to be treated "as a felony." Accordingly, "remand would be merely redundant" and a waste of judicial resources. (Manzy W., supra, at p. 1209.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
DOI TODD, J. We concur:
BOREN, P. J.
CHAVEZ, J.