Opinion
B201622
6-30-2008
In re FREDY F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. FREDY F., Defendant and Appellant.
Holly Jackson, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Robert M. Snider, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
INTRODUCTION
Fredy F. appeals from the dispositional order declaring him a ward of the juvenile court under Welfare and Institutions Code section 602 and placing him home on probation. The court entered this order after denying appellants motion to suppress evidence (Welf. & Inst. Code, § 700.1) and finding true the allegation that he possessed etching cream or an aerosol paint container with intent to deface in violation of Penal Code section 594.1, subdivision (e)(1). Appellant challenges the propriety of the order denying his suppression motion and contends the court erred in setting a maximum term of confinement. We modify and affirm the dispositional order.
Penal Code section 594.1, subdivision (e)(1), declares it "unlawful for any person under the age of 18 years to possess etching cream or an aerosol container of paint for the purpose of defacing property while on any public highway, street, alley, or way, or other public place, regardless of whether that person is or is not in any automobile, vehicle, or other conveyance." The term "`etching cream means any caustic cream, gel, liquid, or solution capable, by means of a chemical action, of defacing, damaging, or destroying hard surfaces in a manner similar to acid." (Id., subd. (a)(2).)
FACTS
Around 1:00 p.m. on Thursday, March 15, 2007, Los Angeles Sheriffs Deputy Antonio Quintanilla, a vandalism investigator with the Transit Services Bureau, was on uniform patrol on Sunset Boulevard in Los Angeles. As he and his partner checked bus stops, Deputy Quintanilla observed appellant and another individual near a telephone booth. Appellant was holding a marker with an orange twist-off cap and was "about to tag the phone." Although the deputy was unable to determine if the cap was on or had been taken off the marker, it appeared as if "[appellant] was going to write."
Deputy Quintanilla told his partner to make a U-turn. Appellant and his companion started to walk away. Deputy Quintanilla called appellant over and directed him to put his hands on the patrol car. Appellant complied. Deputy Quintanilla spoke to appellant in English but then changed to Spanish after noticing that he was having trouble understanding him. The deputy asked appellant why he was not in school or how old he was. He said they overslept and were supposed to be in school by 8:30 a.m. Deputy Quintanilla then asked appellant what he did with the marker. Appellant said it was behind the telephone booth. The deputy retrieved an orange marker but did not observe any orange writing inside the telephone booth.
The deputy could not remember if the marker was capped when he recovered it.
Deputy Quintanilla arrested appellant, took the backpack he was carrying and searched it incident to his arrest. Therein, the deputy found numerous cans of spray paint and some spray caps or tips.
After Deputy Quintanilla advised appellant of his Miranda rights in both English and Spanish, appellant waived his rights. When asked why he had the marker, appellant said he was about to use it to write the letters A-P-T, an acronym for the Angels Phantom Taggers, on the phone booth. The deputy then asked appellant if he belonged to a tagging crew. Appellant said he was going on a "training run." With respect to the spray cans and spray tips, appellant claimed to have just purchased them. He was going to learn how to write throughout the city. He also stated that he was preparing to "throw up," a term meaning to write the ones name on a wall or property. Appellant knew it was against the law to deface public and private property but did not think he would get caught.
Miranda v. Arizona (1966) 384 U.S. 436.
According to appellant, he was at a bus stop near a telephone booth when he first saw Deputy Quintanilla. Appellant was holding a marker that was capped at the time. When appellant saw the sheriffs car turn and come toward him, he placed the marker behind the telephone.
Deputy Quintanilla spoke to appellant in English. Appellant, who spoke Spanish, did not understand much of what the deputy said other than to put his hands on top of the car. Appellant complied, after which Deputy Quintanilla removed appellants backpack, searched it and then handcuffed him. Only after handcuffing appellant, did Deputy Quintanilla speak to him in Spanish.
DISCUSSION
Motion to Suppress Evidence
The court denied appellants motion to suppress, concluding that Deputy Quintanilla lawfully detained appellant and that the search of his backpack was lawful. On appeal, appellant contends that his motion to suppress should have been granted because he was unlawfully detained. For the reasons that follow, we disagree.
Although appellants written suppression motion appeared to the court and the People to be limited to challenging the propriety of his detention, the scope of the motion was expanded to include a challenge to the search of the backpack.
When reviewing the propriety of an order denying a motion to suppress evidence in a juvenile proceeding, we view the evidence in the light most favorable to the courts ruling. We uphold the courts factual findings, whether express or implied, if supported by substantial evidence, and we determine de novo whether the facts support the legal conclusions reached by the court. (In re Cody S. (2004) 121 Cal.App.4th 86, 90.)
As the California Supreme Court observed in People v. Souza (1994) 9 Cal.4th 224, "[a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity." (Id. at p. 231; accord, United States v. Arvizu (2002) 534 U.S. 266, 273-274; In re James D. (1987) 43 Cal.3d 903, 911.)
In appellants view, the Deputy Quintanillas testimony that he believed appellant was about to write something "without any information about [his] posture, positioning, or proximity to the property" was insufficient to detain him. In other words, appellant maintains that the "mere possession of a marker is insufficient to warrant a detention without some articulable facts that the holder intends to deface the property with that marker." Absent such facts, the deputys testimony amounted to nothing more than a subjective hunch of wrongdoing and thus was insufficient to justify his detention.
While it is true that Deputy Quintanilla did not describe with particularity the observations that led him to conclude that appellant was about to write on the telephone booth with the marker, the deputys actions as memorialized into the record by the trial court clearly did so. During argument on the suppression motion, and in response to defense counsels argument that the deputy did not testify to objective facts demonstrating that appellant was going to write with the marker, the court interjected that the deputy "indicated that it looked to him like he was going to write on the booth and he did, in fact, raise his arm and make a writing motion as he was doing it." We conclude that appellants testimony, together with his actions as described into the record by the court, was more than sufficient evidence from which it objectively could be determined that appellant was about to vandalize the telephone booth with the marker. (Pen. Code, §§ 594, 664; In re Nicholas Y. (2000) 85 Cal.App.4th 941, 942, 943-944 [writing on glass window of a movie theater projection booth with a Sharpie marker constitutes vandalism].) Deputy Quintanilla therefore had more than reasonable basis for suspecting legal wrongdoing and for detaining appellant. Appellant has thus failed to demonstrate that he was unlawfully detained and that his motion to suppress should have been granted.
Appellants counsels assertions that Deputy Quintanilla failed to articulate the basis for his belief that appellant was about to write on the telephone booth seem disingenuous. Counsel conveniently failed to mention in the opening brief that the deputy made a writing motion with his arm while testifying.
Penal Code section 594, subdivision (a), provides that "[e]very person who maliciously commits any of the following acts with respect to any real or personal property not his or her own, in cases other than those specified by state law, is guilty of vandalism: [¶] (1) Defaces with graffiti or other inscribed material."
Maximum Term of Confinement
At the jurisdictional hearing, the juvenile court found the allegations of the section 602 petition to be true beyond a reasonable doubt and sustained the sole count of the petition. The court also found that appellants crime was "a misdemeanor with a maximum term of confinement of six months." The court then asked the parties if they were ready for disposition. The parties stated they were.
After considering defense counsels comments, the court announced its disposition. Specifically, the court declared appellant a ward of the court under Welfare and Institutions Code section 602. The court placed appellants care, custody, control and conduct under the supervision of the probation officer. The court allowed appellant to remain in his mothers home under specified conditions.
Welfare and Institutions Code section 726, subdivision (c), in pertinent part provides: "If the minor is removed from the physical custody of his or her parent or guardian as the result of an order of wardship made pursuant to Section 602, the order shall specify that the minor may not be held in physical confinement for a period in excess of the maximum term of imprisonment which could be imposed upon an adult convicted of the offense or offenses which brought or continued the minor under the jurisdiction of the juvenile court." (Italics added.)
Citing In re Ali A. (2006) 139 Cal.App.4th 569, appellant contends the trial court erroneously specified a maximum term of confinement. Ali A. holds that where a ward is placed home on probation in the custody of his parents subject to supervision of the probation department, there is no confinement and thus no maximum term of confinement to be specified. (Id. at p. 571, 573.)
Although, as the People point out, the court did not specify a maximum term of confinement during the dispositional hearing, it clearly did so during the immediately preceding jurisdictional hearing. Indeed, the courts order specifies that appellants maximum term of confinement is not to exceed six months. Although the order correctly reflects the courts disposition that appellant be placed home on probation and indicates that appellant "remains released" to his mother, the order also erroneously and inconsistently states that custody of appellant is taken from his parents and that he is placed in the care, custody and control of the probation officer. Modification of the dispositional order is warranted.
The dispositional order is modified to reflect that appellant was placed home on probation under supervision of the probation department and to delete the maximum term of confinement and, as modified, is affirmed.
We concur:
MALLANO, P. J.
ROTHSCHILD, J.