In re Eric T.

Filed 9/7/07 In re Eric T. CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from orders of the Superior Court of Los Angeles County. Robert Leventer, Temporary Judge. (Pursuant to Cal. Const., art VI,  21.) Remanded with directions and affirmed.

Debbie M. Page, 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, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

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The juvenile court sustained a petition alleging that appellant Eric T. committed grand theft of personal property in violation of Penal Code section 487, subdivision (a). The court also sustained a petition alleging that appellant received stolen property in violation of Penal Code section 496, subdivision (a). For both petitions, the court found that appellant was a person described by Welfare and Institutions Code section 602 and adjudged appellant to be a ward of the court. For the first petition, the court placed appellant on supervised probation. For the second petition, the court ordered suitable placement for appellant. Appellant's aggregated maximum term of confinement was three years and four months.

Appellant appeals from the orders sustaining the petition and adjudging him to be a ward of the court, contending that the police subjected him to an unlawful patdown search, that the juvenile court erred in failing to declare whether the theft was a felony or misdemeanor, and that certain conditions of his probation are unconstitutional. Appellant also contends that the clerk's minute order must be corrected to conform with the oral pronouncement of judgment. We remand this matter for a declaration and for clarification of the differences between the statements at the dispositional hearing and the minute order, as set forth in more detail in the disposition. We affirm the juvenile court's orders in all other respects.

Facts

On September 19, 2005, appellant admitted an allegation that he had committed grand theft. The court deferred entry of judgment pursuant to Welfare and Institutions Code section 790 and placed appellant on probation. Appellant's family was homeless and when appellant last saw his mother and siblings, they were living in a car. Appellant's mother could not be located following his arrest. At some point shortly after the disposition hearing, appellant was declared a dependent child of the court pursuant to Welfare and Institutions Code section 300, and was under the supervision of the Department of Children and Family Services ("DCFS").

On March 2, 2006, at about 5:00 p.m., appellant was detained along with several other young men who were suspected of writing graffiti. While waiting for a witness to come to the detention area for a field show-up, Officer Thompson conducted patdown searches of the young men for weapons and graffiti tools. Officer Thompson found a cell phone, wallet containing about $30, and a box of cigarettes on appellant's person. The officer returned the cell phone and wallet, but not the cigarettes. It is not legal for a minor to possess cigarettes.

When the witness arrived, she did not identify appellant as one of the young men she saw writing graffiti. At that point, Officer Thompson decided to give appellant a citation for possession of the cigarettes. He also decided that he wanted to take appellant back to his family. Appellant gave the officer two false addresses. Officer Thompson decided to take appellant to the police station and detain him while the officer tried to locate appellant's family. He explained: "My focus was just on reuniting him with his family so they knew where he was. It was getting late. It was dark, and I wanted to make sure he was okay for the evening."

At the police station, Officer Thompson asked appellant to try to contact his mother on the phone. Appellant said he had numbers but they were not working. Appellant showed Officer Thompson some of the telephone numbers stored on the phone. Officer Thompson then dialed one or two of the numbers using the police department's telephone. This number was answered by Mrs. Kevin Lau. Officer Thompson quickly learned that the cell phone in appellant's possession had been stolen from Kevin Lau. Appellant was arrested and charged with receiving stolen property.

At some point after appellant was arrested, Officer Thompson learned that appellant was a runaway. At the disposition hearing on this matter, it was revealed that appellant was a dependent child of the court under the supervision of DCFS at the time of the offense. He had run away from a DCFS placement.

Discussion

1. Motion to suppress

Appellant moved to suppress the items found in the patdown search, on the ground that the officer had no reason to believe that he or the other young men were armed, and that Officer Thompson improperly removed the items from his clothing even though he knew that they were not weapons. Appellant argued that the cigarettes were the whole reason that Officer Thompson did not let him leave after the field show-up, and that anything that Officer Thompson learned thereafter was tainted and should be excluded.

The court denied appellant's motion. The court found that Officer Thompson was justified in searching appellant for graffiti tools and that a cigarette box is a place where such tools can easily be contained. The court also found that Officer Thompson was justified in detaining appellant until a parent could be located. The court further found the cell phone was in plain sight at the police station and appellant was trying to use it, and Officer Thompson acquired the numbers with appellant's consent, in a genuine attempt to locate a relative of appellant's. Appellant contends that the juvenile court erred in denying his motion.

The standard of review of a trial court's ruling on a motion to suppress is well established. We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)

Officer Thompson's testimony was substantial evidence to support the juvenile court's factual findings set forth above. We defer to those findings.

We will assume for the sake of argument that removing the cigarettes from appellant's pocket during the patdown search was not legal. We have independently reviewed the record and see nothing in that search which tainted the officer's later discoveries. Appellant does not dispute that Officer Thompson could have legally detained him in order to locate his parents.[1] He does argue that Officer Thompson would have let him go if the officer had not discovered the cigarettes. We do not so understand the officer's testimony.

In response to a question from appellant's counsel, Officer Thompson stated that when the witness did not identify appellant as one of the young men involved with the graffiti, he decided to cite appellant for the cigarettes. Appellant's counsel then asked: "And then you decided that you wanted to bring him to his family's house, right?" Officer Thompson replied: "Yes, I did." We see no connection between the decision to cite appellant and the decision to return him to his family. Rather, both of those decisions were connected to the witness's failure to identify appellant, which meant that appellant would not be arrested for the graffiti offense.

To the extent that appellant argues that Officer Thompson used looking for his family as a pretext to examine the cell phone, we do not agree. Officer Thompson's testimony was to the contrary, and the court found him credible. We defer to those findings.

2. Felony or misdemeanor declaration

Appellant contends that this matter must be remanded for the juvenile court to declare the grand theft count to be either a felony or a misdemeanor. We agree.

When a 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 juvenile court is required to declare the offense to be a misdemeanor or felony. The declaration must be "explicit." (In re Manzy W. (1997) 14 Cal.4th 1199, 1203-1204.) This requirement is "directed, in large part, at facilitating the determination of the limits on any present or future commitment to physical confinement for a so-called 'wobbler' offense." (Id. at p. 1206.) When the juvenile court imposes probation, "the required declaration would constitute a record, for the purposes of determining the maximum term of physical confinement in a subsequent adjudication, whether the prior offense was a misdemeanor or a felony." (Id. at pp. 1206-1207, italics omitted.)

"[T]he requirement that the juvenile court declare whether a so-called 'wobbler' offense was a misdemeanor or felony also serves the purpose of ensuring that the juvenile court is aware of, and actually exercises, its discretion under Welfare and Institutions Code section 702." (In re Manzy W., supra, 14 Cal.4th at p. 1207.) "[N]either the pleading, the minute order, nor the setting of a felony-level period of physical confinement may substitute for a declaration by the juvenile court as to whether an offense is a misdemeanor or felony. [Citation.]" (Id. at p. 1208.)[2]

On September 19, 2005, appellant admitted the allegation that he committed grand theft. Judge Pro Tem Gary Polinsky did not expressly declare the offense to be a felony or a misdemeanor at the dispositional hearing. Judge Polinsky placed appellant in the deferred entry of judgment program, which is available to juveniles who commit a felony offense. (Welf. & Inst. Code, 790.) On line 30 of the court's September 19 minute order, a box is checked declaring the offense to be a felony. The minute order is not signed by Judge Polinsky. Thus, there was no express declaration of whether the offense was a felony or a misdemeanor and nothing in the record as a whole to show that the court was aware of and actually exercised its discretion to treat the offense as a felony or a misdemeanor. (See In re Manzy W., supra, 14 Cal.4th at p. 1204 [remand not required when the record as a whole shows that the court was aware of and exercised its discretion].)

Respondent contends that the juvenile court's declaration that receiving stolen property was a misdemeanor shows that the court was aware that grand theft was also an offense which could be sentenced as a felony or a misdemeanor. We do not agree.

Commissioner Robert Leventer declared the receiving stolen property offense to be a misdemeanor. That declaration occurred on June 22, 2006, nine months after Judge Polinsky held the dispositional hearing on the grand theft charge. Commissioner Leventer's declaration reveals nothing about Judge Polinsky's awareness.

To the extent that respondent is contending that Commissioner Leventer should be deemed to have made a declaration about appellant's prior grand theft offense in connection with the disposition of the receiving stolen property charge, we do not agree.

Commissioner Leventer held a lengthy contested dispositional hearing to determine a suitable placement for appellant on July 6 and July 14. Appellant's family was homeless and could not be located at the time of his arrest on the earlier grand theft offense. Appellant had been living in foster homes and similar placements while on probation in the grand theft case. The focus of the hearing was on finding a placement which would meet appellant's therapeutic needs. At no point did Commissioner Leventer indicate that he was making any determination of whether the prior grand theft offense was a felony or a misdemeanor.

3. Terms of probation

Appellant contends that two conditions of his probation are unconstitutionally overbroad and vague. We agree.

Appellant challenges orally imposed condition 15, which instructs him "not [to] associate with any person disapproved of by the department of children services or staff" and condition 21 which instructs him to "stay away from places where users congregate."

Respondent agrees that orally imposed condition 15 is unconstitutionally vague because it does not contain a knowledge requirement. We agree as well. (In re

Sheena K. (2007) 40 Cal.4th 875, 890-891.)

We note that orally imposed condition 15 does not match the written condition in the minute order. In the minute order, appellant is instructed not to associate with "anyone known to you to be disapproved of by parents, Probation Officer [or] DCFS staff." Since the minute order has already been modified to add a knowledge requirement, we see no need for further modification.

We agree with appellant that orally imposed condition 21 is unconstitutionally vague because it lacks a knowledge requirement. We note that condition 21 is not checked on the minute order. We order the minute order corrected to show that condition 21 is imposed, and to amend that condition to read: "stay away from places where people known to you to be users of narcotics congregate." The minute order should also be corrected to reflect that related condition 22 is imposed. The court imposed this condition at the dispositional hearing, but it is not shown on the minute order.

4. Minute order

Appellant contends that the only order the court made at the disposition hearing was the following: "The minor is declared a ward of the court under 602. He will be suitably placed." He further contends that the portions of the minute order shows findings and orders which were not made at the disposition hearing, specifically the aggregation of the terms of confinement time and a calculation of predisposition credit and which order that the probation conditions imposed on September 19, 2005, remain in full force and effect and that care and custody of appellant is removed from his parents and transferred to the probation officer. He concludes that these findings and orders must be stricken because they constitute a discrepancy with the oral pronouncement of judgment at the disposition hearing.

Appellant's request would leave him without a maximum term of confinement and with no record of predisposition credit. It would also make his already unclear custody status less clear.[3]Accordingly, we remand this matter to the juvenile court for clarification, as set forth in the disposition below.

Disposition

We remand this matter to the court with instructions to declare the grand theft offense to be a felony or a misdemeanor. We also instruct the court to state its orders on aggregation of confinement time, predisposition credit calculation, appellant's custody status and the status of the 2005 terms of probation. If necessary, the clerk should prepare an amended minute order on the findings and orders. We affirm the court's orders in all other respects.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, J.

We concur:

TURNER, P. J.

KRIEGLER, J.

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[1] A police officer may detain a minor when he has reasonable cause for believing that the minor is truant, persistently refuses to obey his parents or is beyond the control of his parents. (Welf. & Inst. Code, 625, subd. (a); 601, subd. (a).) The minor may be held for up to 24 hours in order to locate his parent and arrange the minor's return. (Welf. & Inst. Code, 207, subd. (b)(1).) Officer Thompson was familiar with appellant and his family situation. He caused a computer search to be done to determine if appellant was a runaway, creating a reasonable inference that he believed appellant was a runaway. Although that search was negative, it was later determined that appellant was a runaway.

[2] A signed findings and order that the offense was a felony would appear to qualify as an explicit finding of felony status. (See In re Manzy W., supra, 14 Cal.4th at p. 1208, fn. 6.)

[3] It appears that appellant was a dependent child of the court pursuant to Welfare and Institutions Code section 300 at the time of the receiving stolen property offense.