Filed 9/25/18 In re C.H. CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from orders of the Superior Court of Tulare County. Juliet L. Boccone, Judge.

Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Henry J. Valle, Deputy Attorneys General, for Plaintiff and Respondent.

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The court adjudged appellant C.H. a ward of the court (Welf. & Inst. Code, § 602) after it sustained allegations charging appellant with carrying a concealed dirk or dagger (Pen. Code, § 21310).[1] On appeal, appellant contends: (1) the court erred when it denied his motion to suppress; (2) the evidence is insufficient to sustain the court’s true finding that he carried a concealed dirk or dagger; (3) the court erred by its failure to make an express declaration that appellant’s offense was a felony; (4) the court erred by its failure to state reasons for not declaring his offense to be a misdemeanor; (5) the court abused its discretion when it denied appellant’s request to declare his offense a misdemeanor; and (6) one of appellant’s conditions of probation is unreasonable and unconstitutionally vague and overbroad. We affirm.

FACTS

On July 18, 2016, appellant was arrested after he was found carrying a screwdriver with a sharpened tip under his shirt.

On December 27, 2016, the Tulare County District Attorney filed a petition charging appellant with carrying a concealed dirk or dagger.

On June 12, 2017, defense counsel filed a motion to suppress alleging appellant had been unlawfully searched and seized when he was arrested in this matter.

On June 21, 2017, the parties agreed the court could incorporate testimony elicited during the suppression hearing, which would be heard first, as part of the evidence in the adjudication hearing. Tulare County Sheriff’s Deputy Fabian Serrano then testified that on July 18, 2016, at approximately 7:30 p.m., at the intersection of Road 38 and Avenue 54, in Alpaugh, he saw appellant and three other males walking on the roadway, which was a violation of the Vehicle Code, and contacted them. Serrano recognized one of the other males from previous contacts as a gang member and noticed that appellant was wearing a blue shirt, which Serrano characterized as gang attire. For his safety, Serrano conducted a superficial patdown search of appellant and the other males for weapons because he was outnumbered four to one. Underneath appellant’s shirt, Serrano found a screwdriver with a shank six to seven inches long, a sharpened point, and black electrical tape wrapped around the handle.

During argument, defense counsel challenged the search of appellant, arguing that appellant and the other males were stopped for a simple traffic offense and there were no facts known to the officer that suggested appellant was armed. The court denied the motion, ruling that the officer was justified in conducting a pat search of appellant and the other males because he was outnumbered four to one, one of the males was a known gang member, and appellant was wearing clothing consistent with being a gang member.

When the hearing continued, Serrano testified that during the encounter, appellant told him he was carrying the screwdriver under his shirt because he did not want people to think he was doing “something bad with it.” Appellant also stated he was carrying the screwdriver because he had been working on a friend’s car and using it to change the oil and do other things on the engine. The defense did not present any evidence.

In finding the charged offense true, the court noted that the screwdriver had been altered to make it more effective as a stabbing instrument, the alterations were unnecessary for it to be used to work on a car, and nothing on the screwdriver indicated it had been used to work on a car.

DISCUSSION

The Motion to Suppress

Appellant contends the pat search of him was unreasonable because he did not make any furtive gestures and there was no evidence that the stop occurred in a high crime or “high gang” area. Thus, according to appellant, the court erred when it denied his motion to suppress. We disagree.

In reviewing the denial of a suppression motion, “ ‘the power to judge the credibility of witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual inferences, is vested in the trial court. On appeal, all presumptions favor the exercise of that power, and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ” (In re Arturo D. (2002) 27 Cal.4th 60, 77.) “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.)

“ ‘ “When an officer is justified in believing that the individual whose suspicious behavior he [or she] is investigating at close range is armed and presently dangerous to the officer or to others,” the officer may conduct a patdown search “to determine whether the person is in fact carrying a weapon.” [Citation.] “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his [or her] investigation without fear of violence ....” [[C]itation[.]] … [A] protective search—permitted without a warrant and on the basis of reasonable suspicion less than probable cause—must be strictly “limited to that which is necessary for the discovery of weapons which might be used to harm the officer or others nearby.” ’ ” (People v. Limon (1993) 17 Cal.App.4th 524, 534.) “ ‘The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.’ ” (People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.)

In determining whether to pat search a detainee, an officer may properly consider that he is outnumbered. (People v. Castaneda, supra, 35 Cal.App.4th at p. 1230.) Further, Serrano recognized one of the males as a gang member and appellant was wearing a shirt that was consistent with gang attire which raised the possibility that appellant also was a gang member. Thus, Serrano was warranted in pat searching appellant to make sure he was not armed.

Appellant cites several circumstances to contend that Serrano’s pat search of him was unlawful, including that: (1) appellant and his companions were cooperative and followed Serrano’s directions; (2) they did not appear to be armed; (3) they did not make any physical or verbal threats; (4) it was daylight when the detention occurred; and (5) appellant did not make any furtive gestures, etc. However, none of these circumstances undermine the ones noted above that support Serrano’s decision to pat search appellant. Accordingly, we reject appellant’s contention that the court erred when it denied his suppression motion.

The Sufficiency of the Evidence

Appellant contends the evidence is insufficient to sustain the court’s true finding that he carried a concealed dirk or dagger because there was no evidence presented that he intentionally carried the screwdriver for ready use as a stabbing instrument. There is no merit to this contention because, as explained below, the only mental state the prosecutor had to prove was that appellant knew the screwdriver could be used as a stabbing instrument and substantial evidence supports the court’s implicit finding that appellant harbored this mental state.

“Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Hubbard (2016) 63 Cal.4th 378, 392.) The reviewing court must, “presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

Section 21310 bars the carrying of a concealed “dirk or dagger.” “[C]arrying a concealed dirk or dagger does not require an intent to use the concealed instrument as a stabbing weapon.” (People v. Rubalcava (2000) 23 Cal.4th 322, 328.) Instead, the mental state to commit this offense requires only that the defendant “knowingly and intentionally carry concealed upon his or her person an instrument ‘that is capable of ready use as a stabbing weapon.’ [Citation.] A defendant who does not know that he is carrying the weapon or that the concealed instrument may be used as a stabbing weapon is therefore not guilty of violating section [21310].” (Id. at p. 332, italics added.)

Appellant does not dispute that the evidence established he was carrying a screwdriver concealed under his shirt when Serrano detained him, that he was aware he was carrying it, and that the screwdriver could be used as a stabbing instrument. Thus, the only issue is whether the evidence was sufficient to establish appellant was aware the screwdriver could be used as a stabbing weapon. Here, the court could reasonably find from the screwdriver’s sharpened point, the tape on the handle, and appellant’s statement that he carried it concealed so people would not think he was doing anything bad, that appellant knew the screwdriver could be used for this purpose. Further, the following circumstances provide additional support for this conclusion. Appellant told Serrano he had been using the screwdriver to work on a friend’s car. The court, however, noted that there were no indications on the screwdriver that it had been used to work on cars and that the alterations did not facilitate its use in this manner. The court could reasonably have found from these circumstances that the above statement to Serrano was false and that it indicated a consciousness of guilt. (CALCRIM No. 362 [pretrial false or misleading statement relating to charged crime may show consciousness of guilt].) Thus, the record contains ample evidence that supports the court’s finding that appellant carried a concealed dirk or dagger in violation of section 21310.

The Court’s Failure to Expressly Declare the Character of Appellant’s

Offense Does Not Require Remand

Carrying a concealed dirk or dagger is a so-called “wobbler” offense, i.e., an offense that in the case of an adult can be punished alternatively as a felony or misdemeanor (§§ 17, 21310). Appellant contends the matter must be remanded to the juvenile court for it to expressly declare his offense to be a felony or a misdemeanor because the court did not expressly declare the character of this offense or state reasons for not declaring it to be a misdemeanor. Respondent contends remand is unnecessary because the record shows the juvenile court was aware of and exercised its discretion to determine the felony or misdemeanor character of appellant’s offense. We agree with respondent.

“Welfare and Institutions Code section 702, in relevant part, 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.’ [¶] The language of the provision is unambiguous. It requires an explicit declaration by the juvenile court whether an offense would be a felony or misdemeanor in the case of an adult. [Citations.] [¶] The requirement is obligatory: ‘... section 702 means what it says and mandates the juvenile court to declare the offense a felony or misdemeanor.’ ” (In re Manzy W. (1997) 14 Cal.4th 1199, 1204-1205 (Manzy W.).) However, remand is not automatic. “[T]he 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. … 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.” (Id. at p. 1209.)

The court did not expressly declare the character of appellant’s carrying a concealed dirk or dagger offense at his adjudication or disposition hearings. However, at appellant’s adjudication hearing, during closing arguments defense counsel stated:

“In the alternative, if the Court does decide that this screwdriver is a dirk or dagger, we would ask the Court to reduce [the carrying a concealed dirk or dagger offense] to a misdemeanor because the facts of the case are not so egregious to make this a felony ….”

After the court found the petition allegations true, the following colloquy occurred:

“THE COURT: “Now, in the meantime [C.H.], … [y]ou need to stay out of trouble.

“What I will do is, I will consider, depending on your performance on whatever the disposition is, reducing it at a later time if you earn that option.

“Do you understand what I’m saying?

“THE MINOR: Yes.

“THE COURT: So that will be an option but it’s going to be based on your performance on whatever disposition I make. Do you understand?

“THE MINOR: Yes.” (Italics added.)

Defense counsel’s request and the foregoing colloquy demonstrate the court understood appellant’s carrying a concealed dirk or dagger offense was a wobbler, that it understood it had discretion to determine this offense was a misdemeanor, and that the court implicitly determined it was a felony. Therefore, since remand to the juvenile court for it to declare the character of appellant’s offense would be redundant, the court’s failure to comply with Welfare and Institutions Code section 702 was harmless.

Appellant Forfeited His Challenge to the Court’s Failure to State Reasons

for Not Reducing His Offense to be a Misdemeanor

Appellant contends the failure to state reasons for not reducing his offense to a misdemeanor was fundamentally unfair because the court’s decision is not subject to a reasoned appellate review, which arguably results in a violation of his federal and state constitutional rights to due process.

Appellant’s contention is not cognizable on appeal because he did not object to the court’s failure to state reasons for not treating his offense as a misdemeanor. (People v. Scott (1994) 9 Cal.4th 331, 353 [failure to object forfeits errors involving trial court’s failure to make or articulate discretionary choices including failure to state reasons].) It is also contrary to In re Jacob M. (1989) 210 Cal.App.3d 1178 and In re Andres M. (1993) 18 Cal.App.4th 1092, which held that the juvenile court is not required to state reasons for treating an offense as a felony rather than a misdemeanor. (In re Jacob M., at p. 1181; In re Andres M., at p. 1099; disapproved on another point in Manzy W., supra, 14 Cal.4th at p. 1207, fn. 5.) Further, we do not find appellant’s attempts to distinguish these cases persuasive. Accordingly, we reject appellant’s contention that the court erred by its failure to state reasons for not reducing his carrying a concealed dirk or dagger offense to a misdemeanor.

The Court Did Not Abuse its Discretion When it

Denied Appellant’s Request to Declare His Offense a Misdemeanor

Appellant cites several circumstances, including the following, to contend the court abused its discretion when it denied his request to declare his offense a misdemeanor: (1) he was only 16 years old when he committed the underling offense; (2) he did not have any prior criminal adjudications or arrests; and (3) he had never been on formal probation. There is no merit to this contention.

Since declaring the character of a juvenile wobbler offense involves a discretionary act, the juvenile court’s decision in that regard is reviewed for abuse of discretion. “ ‘Under the abuse of discretion standard, “a trial court’s ruling will not be disturbed, and reversal of the judgment is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” ’ ” (People v. Jones (2013) 57 Cal.4th 899, 924.)

By carrying a concealed screwdriver that had been modified to make it more effective as a stabbing instrument, appellant committed a serious offense that placed him on course to committing more serious offenses if he used the screwdriver to stab someone or to commit other crimes. Further, the court could reasonably have found from appellant’s association with a known gang member and the gang attire he wore, that appellant was in danger of becoming more entrenched in a gang lifestyle. By leaving open the possibility of reducing appellant’s offense to a misdemeanor if he performed well on probation, the court provided a strong incentive for appellant to comply with his terms and conditions of probation and to terminate his involvement with gangs or their members. Thus, the court acted reasonably and did not abuse its discretion when it denied defense counsel’s request to reduce appellant’s possession of a concealed dirk or dagger offense to a misdemeanor.

The Challenged Probation Condition

Introduction

On July 19, 2017, at appellant’s disposition hearing, the court, without objection, placed appellant on probation on certain terms and conditions, including one that required appellant to submit to a search of “any object or electronic device in [his] custody or under [his] control[].” According to appellant, this condition is unreasonable under People v. Lent (1975) 15 Cal.3d 481 (Lent) because it has no relationship to appellant’s crime, involves conduct that is not criminal, and is not related to future criminality. He also contends the condition is unconstitutionally overbroad because it infringes on his constitutional rights to freedom of speech and privacy and is not carefully tailored or reasonably related to the compelling state’s interest in reformation and rehabilitation. Appellant further contends the condition is unconstitutionally vague because it does not specifically state what electronic devices it encompasses and whether it also includes data. We find that appellant forfeited his first two contentions and that there is no merit to his third contention.

Appellant Forfeited His Contentions that the Challenged Condition

Is Unreasonable Under Lent and that It Is Unconstitutionally Overbroad

Legal Principles

“The juvenile court has broad discretion to formulate probation conditions. [Citations.] … [¶] But the … court’s discretion is not unlimited. A probation condition is invalid if it: ‘ “(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality.” ’ [(Lent, supra, 15 Cal.3d 481, 486.)] In addition, a juvenile court may not adopt probation conditions that are constitutionally vague or overbroad.” (In re Malik J. (2015) 240 Cal.App.4th 896, 901.) When granting probation, the trial court may “impose and require … reasonable conditions, as it may determine are fitting and proper to the end that justice may be done, that amends may be made to society for the breach of the law, for any injury done to any person resulting from that breach, and generally and specifically for the reformation and rehabilitation of the probationer .…” (§ 1203.1, subd. (j).)

“Ordinarily, a criminal defendant [or juvenile] who does not challenge an assertedly erroneous ruling of the trial court in that court has forfeited his or her right to raise the claim on appeal.” (In re Sheena K. (2007) 40 Cal.4th 875, 880 (Sheena K.).) “ ‘The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.’ ” (Id. at p. 881.)

However, “[a]n obvious legal error at sentencing that is ‘correctable without referring to factual findings in the record or remanding for further findings’ is not subject to forfeiture.” (Sheena K., supra, 40 Cal.4th at p. 887.) “[A] challenge to a term of probation on the ground of unconstitutional vagueness or overbreadth that is capable of correction without reference to the particular sentencing record developed in the trial court can be said to present a pure question of law.” (Ibid., italics omitted.) Such a challenge, therefore, is not forfeited by the failure to object in the juvenile court. (Id. at pp. 888-889.)

Analysis

Appellant’s contention that the challenged condition is invalid under Lent does not present a constitutional issue and is not correctable without referring to factual findings in the record. Thus, appellant forfeited his contention that the challenged condition is unreasonable under Lent by his failure to object on this ground in the trial court. (Sheena K., supra, 40 Cal.4th at p. 880; In re Vincent G. (2008) 162 Cal.App.4th 238, 246.)

Moreover, “[a] probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad.” (Sheena K., supra, 40 Cal.4th at p. 890.)

Appellant contends the challenged condition is overbroad because it is not narrowly tailored to avoid infringing on his constitutionally protected right of privacy or closely connected to the circumstances of his offense and the record does not suggest that he is likely to use an electronic device “ ‘in a way that would hinder his rehabilitation.’ ” Appellant’s arguments do not present a facial challenge to the constitutionality of the challenged condition because they require an analysis of the facts and circumstances of his case. Thus, appellant also forfeited his contention that the challenged condition is unconstitutionally overbroad by his failure to object on this basis in the trial court.

The Challenged Condition Is Not Unconstitutionally Vague

Appellant contends that as used in the challenged condition, the words “any object or electronic device” are unconstitutionally vague because they do not specify what electronic devices they encompass and whether they also include the data.

“To withstand a vagueness challenge, ‘a probation condition must be sufficiently definite to inform the probationer what conduct is required or prohibited, and to enable the court to determine whether the probationer has violated the condition.’ [Citation.] A probation condition is not impermissibly vague ‘ “ ‘simply because there may be difficulty in determining whether some marginal or hypothetical act is covered by its language.’ ” ’ [Citation.] We give the condition ‘ “the meaning that would appear to a reasonable, objective reader” ’ [citation], and may consider the juvenile court’s ‘additional oral or written comments clarifying’ the condition [citation]. A probation condition survives a vagueness challenge if it can be given any reasonable and practical construction.” (In re I.V. (2017) 11 Cal.App.5th 249, 261.)

Appellant’s vagueness claim presents a facial challenge to the probation condition allowing the search of objects and electronic devices and, thus, is cognizable despite defense counsel’s failure to object. However, the condition is not unconstitutionally vague because in the context of the probation condition, the word “object” is reasonably construed to mean tangible property. Further, the term “electronic devices” is reasonably construed to apply to such items as cell phones, computers, and laptops. It is also implicit in the condition that it allows the search of the data in these types of devices because that is the only property that these devices would ordinarily contain. This may present an issue of constitutional overbreadth, which appellant forfeited, but not one of vagueness. Further, although the term electronic devices may also encompass other electronic devices such as coffeemakers or programmable ovens, this too may present an issue of constitutional overbreadth, but not one of vagueness. Accordingly, we reject appellant’s contention that the challenged condition is unconstitutionally vague.

DISPOSITION

The juvenile court’s orders are affirmed.