In re Vincent C.

Filed 4/18/07 In re Vincent C. CA2/2

Opinion following rehearing

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Charles R. Scarlett, Judge. Affirmed and remanded with directions.

Lynette Gladd Moore, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

A juvenile court found true the allegation that Vincent C. (Vincent) committed the offense of being a minor in possession of a concealable firearm. (Pen. Code, 12101, subd. (a)(1).)[1] On appeal, Vincent contends: (1) the true finding must be reversed because the firearm was discovered pursuant to an unlawful search in violation of the Fourth Amendment; (2) his statements to the police were obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda) and should have been suppressed; and (3) even if the true finding is confirmed, the case must be remanded to the juvenile court to exercise its discretion and declare whether the offense is a misdemeanor or felony. We remand to the juvenile court to declare whether the offense is a misdemeanor or felony and, if necessary, recalculate the period of confinement. In all other respects, we affirm.

FACTS

At all relevant times, Vincent was 12 years old.

At 3:00 p.m., on March 20, 2006, the magnet coordinator for an elementary school (coordinator) was on the schools playground talking to a student named Bennie. He said that Vincent had a gun.[2] Vincent rode up on his bicycle and said to Bennie, Lets go. The coordinator initiated a search. One of Vincents pockets was ripped in the front, so she reached inside. Vincent said she could not search him, and started to leave. She told him that she would call the police, so he stopped. She asked, What do you have? Vincent said he had a BB gun. She asked to see it. He took a handgun out of a pocket at or below the knee of his cargo pants. The coordinator took the weapon. The handgun had a magazine containing five live rounds.

In the presence of his mother, Vincent was advised of his Miranda rights. Vincent said he understood and expressly waived his rights. When asked if he wanted to talk about the incident, Vincent said yes. He said that he found the gun in a trash bin, and that he had it when he went to school. An officer asked if Vincent knew the difference between right and wrong. He said that he did, and that taking a gun to school was wrong. The interview took place outside his residence, in the back.

In a Welfare and Institutions Code section 602 petition filed by the People, it was alleged that Vincent violated section 12101, subdivision (a)(1).[3]

During trial, Vincent moved to suppress evidence of the handgun. His motion was denied. Subsequently, he objected to the admission of his interview statements on the grounds that he did not knowingly and intelligently waive his Miranda rights because there was no indication that he knew the definition of the terms attorney, right, or waived in the Miranda advisement. The juvenile court stated: If I heard some evidence to the effect that he didnt know these things, then I would have to weigh that evidence and determine whether or not he made a knowing, intelligent waiver of his rights and whether or not he understood his rights. But the only requirement is that they advised him and he answered. Vincents counsel requested an opportunity to present evidence that Vincent lacked understanding and then move to strike his statements. The juvenile court stated: All right. The objection will be overruled subject to a motion to strike. Vincents counsel did not present evidence, or move to strike.

The juvenile court found the allegation against Vincent to be true. He was placed on home probation for a term not to exceed three years.

This appeal followed.

DISCUSSION

1. There are no grounds for finding that the search was unconstitutional.

Vincent argues that the coordinators search was not reasonable, and that substantial evidence does not support the juvenile courts denial of the motion to suppress. We cannot accede to this argument.

a. Standard of review.

When a defendant unsuccessfully makes a motion to suppress based on the Fourth Amendment and then appeals, we review the denial of that motion to suppress under two standards: the juvenile courts factual determinations are examined under the substantial evidence test, but the ruling is subject to our independent judgment. (People v. Woods (1999) 21 Cal.4th 668, 673.)

b. The applicable law.

Unique rules pertain to the detention of a student on school grounds and to the subsequent search of that student. (In re Randy G. (2001) 26 Cal.4th 556, 567 (Randy G.).) Detentions of students on school grounds do not offend the Constitution so long as they are not arbitrary, capricious, or for the purposes of harassment. (Ibid.) For a search to be constitutional in a school setting, all that is required is that a school official have a reasonable suspicion. (Ibid.)

Vincent does not challenge his detention, only his search. The following cases more fully set forth the law that lights our path.

The United States Supreme Court held that whether the search of a student is reasonable is assessed under all the circumstances. (New Jersey v. T.L.O. (1985) 469 U.S. 325, 341.) Two questions must be asked: (1) was the search justified at its inception, and (2) was the scope of the search reasonably related to the circumstances that justified the search. (Ibid.) Under ordinary circumstances, a search of a student by a teacher or other school official will be justified 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. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction. (Id. at pp. 341342, fns. omitted.)

To the mix, our own Supreme Court offers the following guidelines: In balancing students privacy interests with the governmental interests in promoting a safe learning environment, we conclude that searches of students by public school officials must be based on a reasonable suspicion that the student or students to be searched have engaged, or are engaging, in a proscribed activity (that is, a violation of a school rule or regulation, or a criminal statute). There must be articulable facts supporting that reasonable suspicion. Neither indiscriminate searches of lockers nor more discreet individual searches of a locker, a purse or a person . . . , can take place absent the existence of reasonable suspicion. Respect for privacy is the rulea search is the exception. [] In sum, this 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. [Citations.] The corollary to this rule is that a search of a student by a public school official is unlawful if predicated on mere curiosity, rumor, or hunch. [Citation.] (In re William G. (1985) 40 Cal.3d 550, 564.)

c. Reasonable suspicion.

Due to Vincents hearsay objection, the juvenile court precluded the coordinator from testifying what she was told by Bennie and, thus, ostensibly, from elucidating the articulable facts that may have supported her suspicions. In our first opinion, we concluded that the juvenile court committed error, but that the error was invited and barred Vincent from attacking the sufficiency of the evidence to support the admissibility of the search. After issuing our opinion, Vincent petitioned for a rehearing and requested an opportunity to brief the issue of invited error. We granted a rehearing and permitted the parties to file letter briefs.

The doctrine of invited error is an application of the estoppel principle: Where a party by his conduct induces the commission of error, he is estopped from asserting it as a ground for reversal on appeal. [Citation.] . . . At bottom, the doctrine rests on the purpose of the principle, which is to prevent a party from misleading the juvenile court and then profiting therefrom in the appellate court. [Citations.] (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) Where, as here, a party caused a judge to improperly exclude evidence based on hearsay, that party is locked into that strategy and whatever that strategy may reap. (Kessler v. Gray (1978) 77 Cal.App.3d 284, 290 (Kessler).) To borrow the apposite words of the Kessler court: Under the doctrine of invited error, a party may not object to the sufficiency of the evidence to support a finding against him when the lack is the result of improper exclusion of evidence at his own instance. [Citation.] (Kessler, supra, at p. 290.)

Even in the context of invited error, however, the trial court rather than defense counsel has the ultimate duty to apply the correct law, and the courts duty can only be negated in that special situation in which defense counsel deliberately or expressly, as a matter of trial tactics, caused the error. [Citation.] . . . Error is invited only if defense counsel affirmatively causes the error and makes clear that [he] acted for tactical reasons and not out of ignorance or mistake or forgetfulness. [Citation.] (People v. Lara (2001) 86 Cal.App.4th 139, 164165.)

We now turn to the facts.

When the coordinator tried to testify regarding what she was told by Bennie, and when Vincents counsel objected based on hearsay grounds, the prosecutor argued: It doesnt go to the truth of [the] matter, your honor. When the prosecutor tried to explain why the testimony was being offered, the juvenile court interrupted and stated that the testimony would be received for the purpose to explain what she did next. At that point, Vincents counsel stated: If I could, just for the record. If it is offered for its truth, then I would object not only under hearsay grounds, but also under federal right to confront and cross-examine. When the prosecutor continued questioning the coordinator and she started to say what she heard from Bennie, she was precluded.

Vincents counsel did not object when the coordinator testified that Vincent gave her the gun.

Later in the trial, Vincents counsel argued that there was a Fourth Amendment issue. The juvenile court indicated the coordinator said somebody told her that Vincent had a gun. Vincents counsel responded, Which was a hearsay objection that was sustained, I believe. When the juvenile court agreed, Vincents counsel stated, So thats not before the [juvenile] court. He went on to argue that [t]hey would have to have a reasonable suspicion. And the evidence before the [juvenile] court wasnt thatthere was no evidence before the [juvenile] court that she had a reasonable suspicion before she searched her.

The juvenile court asked: You didnt hear her say that somebody told her that your client had a gun? Again, Vincents counsel noted that he objected on hearsay grounds. When the juvenile court tried to say [t]hats probable cause, it was cut off. Vincents counsel argued: But its not before the [juvenile] court because the [juvenile] court sustained the objection.

In his letter brief, Vincent states that from the record it is clear that the initial sustaining of trial counsels hearsay objection was correct.

We cannot concur.

In our view, the coordinators testimony was not hearsay. There is a well-established exception or departure from the hearsay rule applying to cases in which the very fact in controversy is whether certain things were said or done and not as to whether these things were true or false, and in these cases the words or acts are admissible not as hearsay, but as original evidence. [Citations.] (People v. Henry (1948) 86 Cal.App.2d 785, 789 (Henry).) Pursuant to Henry, the coordinators testimony was admissible because it was being offered to prove what she heard and based her suspicion on. Of course, the prosecutor did not say this because he was cut off when he tried to. Nonetheless, the only reason for the planned testimony was to establish the legality of the search. Bennies statements could not have been offered for the truth of the matter asserted: that Vincent had a gun. Moreover, Vincents possession of the gun was established by the search itself. There was no reason for the prosecutor to use Bennies statements for a hearsay purpose.

We are left, then, with a record that is bereft of the facts that are pivotal for our analysis. What did Bennie say or not say? Was his report that Vincent had a gun based on rumor or personal knowledge? Did Bennie see the gun? Was he told about the gun by Vincent? None of this was developed. This hole in the case was the result of error invited by Vincents counsel.

But is the error binding? The record reflects that the hearsay objection was asserted for tactical reasons. Vincents counsel did not object to testimony regarding the results of the search, i.e., there was no objection to the coordinators testimony that Vincent gave her the gun. Instead, Vincents counsel tried to use the juvenile courts improper ruling to establish that the coordinator did not have a reasonable suspicion for her search. In this light, the strategy is apparent. Vincents counsel knew that a gun was found in the search and the results of the search could not be denied. The best (and only) way to defend Vincent was to prevent the admission of evidence regarding reasonableness of the coordinators suspicion and then to attack the legality of the search. Consequently, under the law, Vincent is barred from attacking the sufficiency of the evidence supporting the juvenile courts finding that the coordinator had a reasonable suspicion for a search.

d. Scope of the search.

Vincent contends that even if a pat down search was authorized, the coordinator had no basis for searching his ripped pocket. But because Vincent prevented the facts from being developed, we have no basis for assessing the proper scope of the search. Also, the search of his ripped pocket was irrelevant because the coordinator did not find the handgun there. The discovery of the handgun was the result of the coordinator asking Vincent what he had. Academically, we find that the scope of the search was not unconstitutional. Bennie told the coordinator that Vincent had a gun, and then Vincent rode up on his bicycle and said, Lets go. This colloquy demonstrated that Bennie knew Vincent. Given these facts and the extreme threat posed by a student possessing a firearm on school property, the Constitution permitted the coordinator to detain Vincent and ask what he had.

2. Vincents statements were not obtained in violation of Miranda.

Vincent posits that there is no evidence that he was advised under Miranda in a way that he could comprehend, and that the juvenile court improperly found that he waived his rights.

We disagree.

a. Standard of review.

When we are called upon to review a lower courts finding that a defendants rights under Miranda were preserved, we accept the trial courts resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.] Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we give great weight to the considered conclusions of a lower court that has previously reviewed the same evidence. [Citations.] (People v. Wash (1993) 6 Cal.4th 215, 235236.)

b. Law applicable to Miranda waivers by juveniles.

When a peace officer takes a minor under 18 years of age into temporary custody, the peace officer must advise such minor that anything he says can be used against him and shall advise him of his constitutional rights, including his right to remain silent, his right to have counsel present during any interrogation, and his right to have counsel appointed if he is unable to afford counsel. (Welf. & Inst. Code, 625, subd. (c).) To avoid any conflict regarding waiver, our Supreme Court recommends that juvenile officers and police be prepared to give their compulsory Miranda warnings in terms that reflect the language and experience of todays juveniles. (In re Dennis M. (1969) 70 Cal.2d 444, 464, fn. 13. (Dennis M.).) This recommendation, however, is not a constitutional mandate necessary to make juvenile waivers adequate.

As noted in In re Bonnie H. (1997) 56 Cal.App.4th 563, the validity of a juveniles waiver of his Miranda rights is determined under the totality of the circumstances. (In re Bonnie H., at p. 577.) The totality approach permitsindeed, it mandatesinquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juveniles age, experience, education, background, and intelligence, and into whether [he] has the capacity to understand the warnings given [him], the nature of [his] Fifth Amendment rights, and the consequences of waiving those rights. [Citation.] (Fare v. Michael C. (1979) 442 U.S. 707, 725.)

When assessing the totality of the circumstances, a court may consider whether the minor was of less than normal intelligence or had an inadequate understanding of the situation facing him. (Dennis M., supra, 70 Cal.2d at p. 464.) Conversely, a court may consider evidence that the minor understands the gravity of his acts. In Dennis M., for example, a 15-year-old minor with prior brushes with the law demonstrated his understanding of the gravity of a shooting by divesting himself of his firearm after the shooting, inventing and maintaining an elaborate and superficially plausible story of a phantom assailant, and engaging in a melodramatic hot pursuant of the fictional villain. (Id. at p. 464.)

c. The juvenile courts finding of waiver was supported by substantial evidence.

The record reflects that when the coordinator first began searching Vincent, he said she could not search him and tried to leave. He stopped and gave her the weapon only after she threatened to call the police. Inferentially, he understood the gravity of possessing a firearm. Subsequently, just outside his residence, Vincent was read his Miranda rights from a card, said he understood his rights, waived those rights, and talked. Nonetheless, he complains that he was not asked if he understood the terms attorney, right, or waived, and he was not asked if he comprehended how his statements could be used. He further complains that he was 12 years of age, had no prior record, and was getting all Fs in school, all of which, he posits, suggest a lack of understanding.

With respect to a minor, as previously indicated, our task is to assess the totality of the circumstances. Though Vincents counsel reserved the right to present evidence impacting the efficacy of the waiver, no such evidence was presented. As a result, the record does not contain any evidence pertaining to Vincents maturity, intelligence, education or experience. That he was getting all Fs means nothing per se about his intelligence. The Fs could be the result of many things, such as his frequent absences from school, which were specifically noted as a concern by the juvenile court when it was ruling after trial. By inference, Vincent asks us to conclude that he did not understand his rights based purely on his age. But the admonition met the minimum requirements of the law, and [n]either a low I.Q. nor any particular age of minority is a proper basis to assume lack of understanding, incompetency, or other inability to voluntarily waive the right to remain silent under some presumption that the Miranda explanation was not understood. [Citation.] (People v. Lewis (2001) 26 Cal.4th 334, 384.) Moreover, the presence of his mother suggests that he intelligently and voluntarily waived his rights. (In re Brian W. (1981) 125 Cal.App.3d 590, 603.) With evidence indicating that Vincent understood the gravity of his act, and without any evidence indicating a lack of understanding of Miranda, we conclude that the evidence demonstrates a valid Miranda waiver.

Vincent attempts to analogize himself to the minor in In re Roderick P. (1972) 7 Cal.3d 801 (Roderick P.), a minor who, according to the appellate court, most likely did not understand his Miranda admonition because he was retarded, immature, woken up just past midnight to be advised and questioned, and had never committed a crime before. (Roderick P., at p. 811.) This analogy does not hold, as there is no evidence that Vincent was retarded or immature.

3. This case must be remanded to the juvenile court to exercise its discretion and declare whether the offense is a felony or misdemeanor.

Vincent complains that the juvenile court did not actually exercise its discretion to declare whether his offense was a felony or misdemeanor because it made no such oral pronouncement. He contends that this matter must be remanded for the juvenile court to correct its error.

We agree.

After trial, the juvenile court found true the allegation that Vincent violated section 12101, subdivision (a)(1), a crime that is punishable as either a felony or misdemeanor. Welfare and Institutions Code section 702 provides: If 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.

Our Supreme Court instructs that the record in a given case may show that the juvenile court, despite its failure to comply with the statute, was aware of, and exercised its discretion to determine the felony or misdemeanor nature of a wobbler. In such case, when remand would be merely redundant, failure to comply with the statute would amount to harmless error. We reiterate, however, that setting of a felony-length maximum term period of confinement, by itself, does not eliminate the need for remand when the statute has been violated. The key issue is whether the record as a whole establishes that the juvenile court was aware of its discretion to treat the offense as a misdemeanor and to state a misdemeanor-length confinement limit. (In re Manzy W. (1997) 14 Cal.4th 1199, 1209.)

Vincents counsel asked the juvenile court to declare the violation of section 12101, subdivision (a)(1) to be a misdemeanor. After the juvenile court sustained the Peoples petition, Vincents counsel continued to press the issue, stating: Could the court find that as a misdemeanor? This is a child. The juvenile court responded: I would have to see how he does. Hes out thereI havent even seen the probation report.

After reviewing the probation report, the juvenile court stated: Vincent was crying because [the coordinator] wouldnt return the gun to him and saying that he needed it for protection. [] This is pathetic even for a 12-year old kid; that he grows up in an environment where he thinks he has a right to have a weapon and carry it around for his own protection. Vincent claimed affiliation with the Bounty Hunters Gang. He had previously threatened to blow someones head off. Also, he had been suspended three times for fighting. The juvenile court thought Vincent needed a lot of help.

The juvenile court sentenced Vincent to a maximum term of confinement, three years. A minute order was subsequently issued stating that the [o]ffense is declared to be a . . . felony.

The minute order, by itself, is not enough to show that the juvenile court exercised its discretion. When the juvenile court imposed three years of maximum confinement, it did not state its reasons or otherwise indicate that it was exercising its discretion pursuant to Welfare and Institutions Code section 702.

In this situation, as set forth in In re Jorge Q. (1997) 54 Cal.App.4th 223, 238, a remand must be ordered for the juvenile court to make the determination required by [Welfare and Institutions Code] section 702. Upon remand, if the juvenile [court] declares the . . . offense to be a misdemeanor, the juvenile court shall recalculate the maximum theoretical period of confinement.

All other issues raised by the parties are moot.

DISPOSITION

The judgment is affirmed but remanded for the juvenile court to exercise its discretion pursuant to Welfare and Institutions Code section 702 and, if necessary, recalculate the period of confinement.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

______________________________, J.

ASHMANN-GERST

We concur:

_______________________________, P. J.

BOREN

_______________________________, J.

DOI TODD

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[1] All further statutory references are to the Penal Code unless otherwise indicated.

[2] At trial, when the coordinator began testifying what she was told by Bennie, Vincents counsel objected based on hearsay. The juvenile court told the coordinator, Dont tell us what [Bennie] said. Nonetheless, the testimony still came in, albeit in roundabout manner. The prosecutor asked the coordinator: You had a conversation with Bennie. And that is what brought your attention to [Vincent]? The coordinator said: Yes. The context supports an undeniable and permissible inference that Bennie told the coordinator about the gun. An appellate court presumes that the judgment appealed from is correct. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) It adopts all intendments and inferences to affirm the judgment unless the record expressly contradicts them. (Brewer v. Simpson (1960) 53 Cal.2d 567, 583.)

[3] Section 12101, subdivision (a)(1) makes it a crime for a minor to possess a firearm capable of being concealed on the person.