Opinion
A167332
08-29-2023
In re A.C., a Person Coming Under the Juvenile Court Law. v. A.C., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
Marin County Super. Ct. No. JV27296A
Miller, J.
Appellant A.C. appeals from a judgment in a juvenile wardship proceeding. A.C.'s appointed counsel filed a brief asking this court to independently review the record for arguable issues under People v. Wende (1979) 25 Cal.3d 436. A.C. was informed of his right to file a supplemental brief and has not filed one. We have reviewed counsel's brief and independently reviewed the record, and we find no errors or other issues requiring further briefing. Accordingly, we affirm.
BACKGROUND
In September 2022, the prosecution filed a juvenile wardship petition charging A.C. with public intoxication (Pen. Code, § 647, subd. (f)), a misdemeanor, and grand theft of real property (§ 487, subd. (a)).
All further statutory references are to the Penal Code unless otherwise stated.
On October 3, A.C.'s counsel requested a diversion evaluation for A.C., and the juvenile court granted the request. As the court explained to A.C. and his parents, "the probation department is going to prepare a report outlining some of the background information and make a recommendation as to whether they think you're suitable for a grant of diversion or not. And this is not what you had before. This is court supervised diversion. It's the next step up. You're here, I'm assuming, because it was not resolved at the lower level, so it would be helpful if you cooperate and provide the information ...."
Apparently, A.C. and his parents had signed an "Informal Probation Contract" in another matter on September 1, 2022, which he had violated on September 6.
On October 31, the probation department filed a Diversion Suitability Report. The report found him "UNSUITABLE for Informal Probation" and recommended a Welfare and Institutions Code section 602 wardship and one year of supervised probation with certain conditions.
At a hearing on November 2, the court continued the matter at the request of defense counsel to meet and confer with A.C. regarding disposition.
At the continued hearing on diversion on November 9, the court heard from the probation officer and counsel. The court stated that it was not inclined to grant diversion and explained why. A.C.'s counsel then requested that the matter be set for a contested jurisdiction hearing and asked the juvenile court judge to set the hearing before a different judge because the court had "already reviewed the social study and the diversion suitability report, so the Court can't hear the evidentiary trial," citing California Rules of Court, rule 2.780(c) and In re James B. (2003) 109 Cal.App.4th 862. The trial court said it would review the request.
There is no rule 2.780(c). A.C.'s appellate counsel suggests that defense counsel was referring to rule 5.780(c), which states "Except as otherwise provided by law, the court must not read or consider any portion of a probation report relating to the contested petition before or during a contested jurisdiction hearing."
At the next hearing on December 14, the court declined the request to have a different judge hear the jurisdictional hearing, explaining at length that it had found no published or unpublished opinion to support counsel's arguments, that the court had reviewed a diversion suitability report, not a jurisdictional report, and the court "has not been presented with any case in which a trial court who would consider diversion or DEJ suitability has been restrained from hearing the Jurisdictional Hearing." A.C.'s counsel offered no further authority or argument.
The court then proceeded to conduct the contested jurisdiction hearing. At the outset, the People moved to dismiss the grand theft charge. The court granted the motion.
The People then called one witness, City of Novato Police Officer Michael Fawnsworth, a peace officer with about 15 years' experience, including "hundreds" of investigations involving juvenile suspects, and "hundreds" of investigations involving individuals who were potentially under the influence of alcohol. Fawnsworth responded to a dispatch on June 25, 2022, at about 9:00 p.m. that there were six juveniles on the roof of an elementary school. Before Fawnsworth arrived, he learned that the juveniles were no longer on the roof. As he approached the school in his patrol car, he saw a group disperse, with some of the group hopping the fence back into the school yard. Fawnsworth approached A.C. on the street where the others had hopped the fence, attempting to climb over the fence. A.C. had slurred speech, red and watery "kind of glossy" eyes, slow motor skills (including difficulty climbing the fence), unsteady gait and balance, and emitted the smell of alcohol from about five feet away. The officer asked A.C. if he had been on the roof, and he said he had. A.C. said he had been drinking but didn't say how much. He said he was 14 years old. The officer asked A.C. to take a seat "for safety reasons" based on his motor skills and poor balance.
The officer placed A.C. under arrest "[b]ased on the fact that he displayed the objective signs of being under the influence of alcohol as a juvenile, him displaying poor judgment, climbing on the roofs of buildings, attempting to trespass on the premises of the school grounds, I felt he was in a state where he was unable to care for his safety." After A.C. was placed under arrest and before he got in the police car, the police searched A.C. (they found a lighter and a pocketknife) and a bag (the police report showed no property from the bag). The police drove A.C. home, to his mother, without incident.
Section 647, subdivision (f), makes it a misdemeanor to be "in any public place under the influence of intoxicating liquor . . . in a condition that they are unable to exercise care for their own safety ...."
Fawnsworth testified he was aware of section 647, subdivision (g) which he described as "basically indicat[ing] that if there's a sober living facility available within the jurisdiction, and the subject has not committed any other offenses, that you shall take them there so they can sober up." Fawnsworth then explained at length his reasons for not doing so in this case.
By its terms, section 647, subdivision (g), does not apply to the following: "(1) A person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug. [¶] (2) A person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor in addition to subdivision (f). [¶] (3) A person who a peace officer in good faith believes will attempt escape or who will be unreasonably difficult for medical personnel to control."
A.C. testified that he had been to a party on June 25, and between about 3:00 to 7:00 p.m. drank "four, to maybe five" "kind of big" glasses of alcohol.
The court heard motions and closing arguments. A.C.'s counsel moved to suppress on the ground the officer did not have enough time (counsel estimated "40 seconds") to have a reasonable suspicion that defendant had violated section 647, subdivision (f). The court denied the motion to suppress, stating that Fawnsworth's observations here were sufficient to make the initial determination that A.C. was significantly under the influence.
A.C.'s counsel raised the issue that the police erred by not reasonably considering whether to bring A.C. into civil protective custody under section 647, subdivision (g). The court heard argument from the prosecution. Both counsel referred without case citation to "Jorge D." factors regarding section 647, subdivision (g), which we take to mean In re Jorge D. (2016) 246 Cal.App.4th 363, 370, a case where there was no evidence the detaining officer was even aware of the subdivision and thus did not even consider it, let alone make any effort to comply with it.
The juvenile court then considered each of the elements of section 647, subdivision (f) and whether the prosecution had proven its case. The court also discussed at length why the civil protective custody argument was not meritorious. The court then concluded that the People had met their burden of proof beyond a reasonable doubt that all of the elements of section 647, subdivision (f), as a misdemeanor had been proven, and that the allegations of count 1 were true. The court did not rely on any material in the Diversion Suitability Report. The court sustained the public intoxication count and found that minor was described by section 602 of the Welfare and Institutions Code.
The court stated: "The officer was very clear that he had several reasons, one of which is that it is his department's policy not to do so, but in[stead] to release a minor to their guardian, but he also articulated that previous contacts and information that he had [from A.C.'s mother], whether it was true or not, and whether it was true or not doesn't really matter here, because what matters was what was the basis of his decision, is that there was behavior which created a good faith belief that it would be unreasonably difficult for medical personnel to control or that he would leave, and that is under [section] 647(g)(3). [¶] I also note that the office did have probable cause to believe, because you [A.C.] told him that you had committed a misdemeanor, that was trespass onto private property, the roof of the school, so those exceptions to 647(g) do apply. [¶] Also, I note that if a person has violated [section 647,] subdivision (f), a peace officer, if reasonably able to do so, shall place the person or cause the person to be designated in civil protective custody, so there are several reasons that that was not done here. [¶] Number one, I don't know that there is such a facility in Marin County other than Juvenile Hall, I suppose, or Helen Vine, which caters to adults, and as I already articulated, the officer had already reason to believe that you had committed another misdemeanor and had information to believe that exception (3) [to section 647, subdivision (g)] applied."
At the disposition hearing on January 11, 2023, the court declared A.C. a ward of the court and placed him on probation. After "look[ing] at the entire picture here, including dismissed charges and social studies," the court imposed a daily curfew from 6:00 p.m. until 6:00 a.m. unless A.C. was with his parents, prohibited A.C. from using, possessing, or transporting any alcohol, imposed a warrantless search condition (but not an electronics search condition) to make sure A.C. did not have alcohol in his possession or control, and permitted probation to use an electronic monitoring program to assist in supervision. The court stated that there is "a real concern that you were a member of, associated with, or involved in the activities of a criminal street gang," and that "[g]iven all the information I have" A.C. was not to associate with any gang members or those he reasonably should know to be a member of or involved in a criminal street gang, and not to wear, possess, or display items or emblems reasonably known to be associated with or symbolic of a gang affiliation.
A.C. was ordered to pay a $50 restitution fine, to be paid by October 1, 2023, and do 15 hours of volunteer work.
DISPOSITION
We have reviewed the record on appeal for any arguable issues and find none. We agree with appellate counsel that there are no issues requiring briefing. The judgment is affirmed.
WE CONCUR: Stewart, P.J., Markman, J. [*]
[*] Judge of the Alameda Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.