In re Rafael C. ( 2016 )

Filed 4/21/16 (unmodified opn. attached)
CERTIFIED FOR PARTIAL PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re RAFAEL C., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
A143376
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J1400437)
RAFAEL C.,
Defendant and Appellant.
It is ordered that the opinion filed herein on March 25, 2016, be modified as
follows:
On page 20, delete the first sentence of line 2, which reads: “It found notice had
been given as required by law.”
The petition for rehearing is denied. The petition “restates arguments that were
raised and considered on appeal.” (Gentis v. Safeguard Business Systems, Inc. (1998) 60
Cal. App. 4th 1294, 1308.) In addition, the petition seeks to raise arguments not included
in appellant’s briefs. (Reynolds v. Bement (2005) 36 Cal. 4th 1075, 1092 [arguments
cannot be raised for first time in petition for rehearing].) The court notes the petition
1
improperly cites unpublished case law. (Cal. Rules of Court, rule 8.1115(a) [“an opinion
of a California Court of Appeal . . . that is not certified for publication or ordered
published must not be cited or relied on by . . . a party in any other action”].)
There is no change in judgment.
Dated ________________ _____________________________ P.J.
2
Superior Court of the County of Contra Costa, No. J1400437, Rebecca C. Hardie, Judge.
Amanda K. Roze, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Donna M.
Provenzano and Laurence K. Sullivan, Supervising Deputy Attorneys General for
Plaintiff and Respondent.
A143376
3
Filed 03/25/16 (unmodified version)
CERTIFIED FOR PARTIAL PUBLICATION*
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
In re RAFAEL C., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
A143376
Plaintiff and Respondent,
v. (Contra Costa County
Super. Ct. No. J1400437)
RAFAEL C.,
Defendant and Appellant.
Rafael C. (Minor) appeals from an order of the juvenile court sustaining a petition
filed pursuant to Welfare and Institutions Code section 602.1 The petition arose from an
incident at Minor’s high school in which a firearm was discovered on campus. School
administrators suspected Minor’s involvement, and in the course of questioning him, they
seized and searched his cell phone. Interspersed with the text messages on the phone
were a number of digital images, including a photograph of Minor holding what appeared
to be the firearm found on campus. When the prosecution sought to use these images as
evidence in the proceeding below, Minor unsuccessfully moved to suppress them. The
*
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts I, II, IV, V, VI, VII, and VIII.
1
All further undesignated statutory references are to the Welfare and Institutions Code.
1
juvenile court found Minor had possessed an assault weapon, and it declared him a ward
of the juvenile court.
On appeal, Minor challenges the denial of his motion to suppress. In the published
portion of our opinion, applying the twofold test established in New Jersey v. T.L.O
(1985) 469 U.S. 325 (T.L.O.), we conclude the search of Minor’s cell phone was
reasonable. Considering all the circumstances, the juvenile court properly found the
search was justified at its inception and permissible in scope. The lower court thus did
not err in denying the motion to suppress.
In the unpublished portion of our opinion, we examine Minor’s other contentions,
and we find most of them unmeritorious. We agree with Minor, however, that (1) the
dispositional order must be modified to reflect his maximum term of confinement and (2)
the matter must be remanded to the juvenile court so that it may calculate the custody
credits to which he is entitled. We affirm the judgment in all other respects.
PROCEDURAL HISTORY
The original petition, filed April 28, 2014, alleged Minor came within section 602
because on or about February 21, 2014, he possessed an assault weapon (Pen. Code,
§ 30605, subd. (a); count 1) and a short-barreled rifle (Pen. Code, § 33215; count 2).
Following hearings on August 29 and September 2, 2014, the juvenile court
denied a motion to suppress evidence, sustained the petition, and found the offenses to be
felonies.
On October 3, 2014, the juvenile court declared indefinite wardship, removed
Minor from the custody of his parents, committed him to the Orin Allen Youth
Rehabilitation Facility (OAYRF) for a regular six-month program, plus an additional 90-
day conditional release/parole period. It also imposed various conditions of probation.
Minor filed a timely appeal.
STATEMENT OF FACTS
We summarize below the facts of the offenses. As required when the juvenile
court’s findings are challenged under the substantial evidence rule, we must view the
evidence in the light most favorable to the prosecution, and we presume the existence of
2
every fact the court could deduce from the evidence. (In re Gary H. (2016) 244
Cal. App. 4th 1463.) Additional facts relating to the particular legal issues raised on
appeal are set forth in the discussion section of this opinion.
Three witnesses, Antioch High School Assistant Principals Jason Murphy and
Jarrod Bordi, and Antioch Police Officer Daniel Hopwood, testified at a combined
suppression/jurisdictional hearing. We first recount the evidence relevant to the
suppression motion before turning to additional evidence presented in support of
jurisdiction.
Evidence Presented in Connection With Minor’s Motion to Suppress
On the morning of February 21, 2014, a campus supervisor at Antioch High
School became concerned about suspicious behavior by two students, who lacked
corridor passes or a reason for their presence outside class. It was believed one of the
students had a firearm he had discarded in a portable trash can on campus. The students
were placed in adjoining offices inside the vice principals’ suite and questioned about the
firearm. The firearm (People’s exhibit 1A) and its magazine cartridge (People’s exhibit
1B) were seized from a trash can and taken to the principal’s office where Murphy saw
them. Murphy and other vice principals acted to secure the school and to provide
direction to the supervisors.
Murphy participated in questioning the two students, and he communicated with a
supervisor to ensure no students were in the hallways without a pass and to detect any
suspicious student behavior. During a five-minute passing period, students passed the
vice principals’ offices in the main arcade of the school only once, which was the normal
behavior of students changing classrooms in that timeframe. Murphy and the supervisor
noticed Minor exhibiting “odd” behavior; he kept walking back and forth past the vice
principals’ offices. Minor passed by a number of times and looked into the office.
At one point, Minor entered the office, which students are forbidden to do without
a pass or permission. Because of the firearm in the principal’s office, the administrators
immediately “shoo[ed]” Minor and other students out. Other students left without
questioning the situation, and Minor alone was “slow dragging” and “kind of lingered”
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by the office door. Eventually, Murphy asked Minor into the office to find out why he
was there and determine the reason for his behavior. The administrators were concerned
because they did not yet know if other parties were involved in bringing the firearm onto
campus.
A supervisor instructed Minor to come into the office, but Minor ignored the
request and kept walking. Murphy sent the supervisor after Minor, but Minor ignored the
supervisor’s call to return. Instead, Minor hurriedly walked away without turning
around. The supervisor finally caught up with Minor and walked back with him to the
office.
Minor was brought to a vice principal’s office where he was questioned. Minor
was asked why he had lingered outside and did not come back as requested. Minor
became “physically fidgety” and “immediately reached down into his pocket.” At the
time, Murphy knew the student with the firearm had concealed it in his pants leg before
he had discarded it into the trash can. When Minor reached into his pocket, Murphy was
“concerned that maybe this student also had a concealed weapon” for which he was
reaching, and told his colleagues, “ ‘Don’t let him keep it in his pocket.’ ”
Minor resisted the administrators and he and they fell to the ground in a struggle.
Murphy reached into Minor’s pocket and realized he was resisting the administrators in
order to try to interact in some way with his cell phone, so he removed the phone from
Minor’s pocket. Minor was then released from restraint and asked what he was doing,
but he did not respond.
Murphy testified that the principal’s protocol was that the vice principals are to
search a student’s cell phone on reasonable suspicion of a communication that could put a
student or staff at risk of harm. Murphy was concerned Minor had used the phone to
communicate with the student in custody about the firearm or possibly to communicate
about another firearm or weapon. Murphy was aware the student with the firearm knew
Minor and testified that Minor’s academic assistant principal knew Minor was a friend of
that student. Murphy was also aware that a verbal altercation had occurred that morning
4
when the other student was “attempting to communicate with people on his cell phone
while he was in the office being interviewed about having the firearm.”
Murphy determined Minor had somehow turned off the cell phone. Not knowing
how to turn the phone on, Murphy plugged it into a USB cable, which brought the phone
back online. Minor’s “collection of text messages and things” included photographs that
“showed up” on the phone when “we brought it back online,” and “we were to able to
open it up[.]” The photographs were of students holding the confiscated firearm Murphy
had seen earlier that morning in the principal’s office. Murphy plugged the phone into
the office computer and was able to take a screenshot of the photographs on the phone.
The screenshots were printed, and the photographs in the computer system deleted. Over
foundation and best evidence objections, Murphy identified a packet of photographs
(People’s exhibit 2) as the photographs he saw “on the student’s phone and also on our
computer when we plugged it in.” Photographs in the exhibit packet depict Minor
holding the firearm. Other photographs depict the same firearm. Murphy testified
Minor’s appearance in the photographs is consistent with how he looked on or about
February 2014. Based on the evidence, the juvenile court found a reasonable
administrative school search and denied the motion to suppress.
Further Evidence Regarding Jurisdiction
At the time of the incident, Bordi was Minor’s assistant principal for discipline at
the school, which Minor had attended for the entire year. Bordi was involved in the
investigation of the two students who brought the gun to school. He testified the
administrators and supervisors were “really concerned” when Minor “seemed to be
coming into the office, very interested, wanting to know what was going on. And we
became more concerned on what connection he had to some of our other students.”
That morning, Bordi’s colleague recovered the photographs from the cell phone
showing Minor holding the weapon, and Bordi had the opportunity to speak with Minor
about his potential involvement in the incident with the gun at school. When questioned,
Minor became irate and screamed profanities. Minor told Bordi, “ ‘Those are my photos.
You can’t do that.’ ” Minor got up and postured towards the vice principal. Campus
5
supervisors were called; Minor became belligerent on their arrival and had to be subdued.
The Antioch police were alerted that the student had lost control. Bordi suspended Minor
that day.
Bordi testified Minor’s appearance as depicted on the photograph on the first page
of People’s exhibit 2 was consistent with how he looked on February 21, 2014, including
his wearing a sweatshirt like the one he had on in the photograph. Bordi reviewed
Minor’s attendance record, and there was no indication of any out-of-state travel.
Officer Hopwood testified he responded to the school on the report of a student
with a firearm, and in the principal’s office he took custody of the confiscated firearm
and magazine cartridge. Hopwood identified People’s exhibit 1A as a .22-caliber Ruger
shortened to an 18.5-inch overall length and six-inch barrel. The gun bore the serration
marks of obvious cuts from the removal of portions of the buttstock and the barrel of a
rifle that originally was significantly longer. The alterations resulted in a pistol grip more
convenient for close quarters concealment. Hopwood also testified the 30-round
magazine attaches and detaches “right in front of the trigger housing” and “outside the
pistol grip.” The photograph on the first page of People’s exhibit 2 shows the detachable
magazine was attached in that forward position outside the pistol grip. People’s exhibit
1B, a 30-round detachable magazine, was attached to the gun when taken into the
officer’s custody. A function check by Officer Hopwood showed the gun was operable.
Officer Hopwood identified the weapon depicted in the photographs in People’s exhibit 2
as the weapon he found at school that day and the “same gun I picked up that day I
logged into evidence. And I brought it to and from the courtroom.”
At the close of the evidence, the juvenile court again overruled the foundation
objection to People’s exhibit 2. The court sustained the petition beyond a reasonable
doubt. It also found the offenses to be “serious felonious conduct,” and found notice was
given as required by law.
DISCUSSION
Minor raises a number of arguments on appeal. He contests the juvenile court’s
evidentiary rulings, its subject matter jurisdiction, its ruling on his motion to suppress,
6
and its factual findings. He also contends it failed to fulfill certain statutory obligations,
abused its discretion by declaring his offenses felonies, and imposed unconstitutional
probation conditions. Finally, Minor argues the dispositional order must be modified to
correct various defects. We will address these arguments in the order Minor presents
them.
I. The Digital Photographs Taken from Minor’s Cell Phone Were Sufficiently
Authenticated.
Minor argues the juvenile court erred by admitting digital photographs found on
his cell phone because the images were inadequately authenticated and irrelevant. He
contends that without these photographs there is insufficient evidence to support the
judgment. We will address these contentions after setting forth the relevant law and our
standard of review.
A. Governing Law and Standard of Review
Under the Evidence Code, a photograph is classified as a “[w]riting.” (Evid.
Code, § 250.) Before a writing may be received in evidence, it must be authenticated.
(Evid. Code, § 1401, subd. (a).) “Authentication of a writing means (a) the introduction
of evidence sufficient to sustain a finding that it is the writing that the proponent of the
evidence claims it is or (b) the establishment of such facts as by any other means
provided by law.” (Evid. Code, § 1400.) “[T]he proponent’s burden of producing
evidence to show authenticity (§ 1400) is met ‘when sufficient evidence has been
produced to sustain a finding that the document is what it purports to be. [Citation.]’
[Citation.] The author’s testimony is not required to authenticate a document (§ 1411);
instead, its authenticity may be established by the contents of the writing (§ 1421) or by
other means (§ 1410 [no restriction on ‘the means by which a writing may be
authenticated’]).” (People v. Valdez (2011) 201 Cal. App. 4th 1429, 1435 (Valdez).)
“ ‘[I]t is well settled that the showing may be made by the testimony of anyone who
knows that the picture correctly depicts what it purports to represent.’ [Citations.]”
(People v. Chism (2014) 58 Cal. 4th 1266, 1303.) “ ‘As long as the evidence would
support a finding of authenticity, the writing is admissible. The fact conflicting
7
inferences can be drawn regarding authenticity goes to the document’s weight as
evidence, not its admissibility. [Citations.]’ [Citation.]” (Valdez, supra, 201
Cal.App.4th at p. 1435.)
The authenticity of a writing is a preliminary fact. (Evid. Code, § 403,
subd. (a)(3).) “[T]he trial court must determine whether the evidence is sufficient to
permit the jury to find the preliminary fact true by a preponderance of the evidence[.]”
(People v. Marshall (1996) 13 Cal. 4th 799, 832.) In so doing, “the court need only
conclude that a prima facie showing has been made that the photograph is an accurate
representation of what it purports to depict.” (In re K.B. (2015) 238 Cal. App. 4th 989,
997.) “ ‘The decision whether the foundational evidence is sufficiently substantial is a
matter within the court’s discretion.’ [Citations.]” (People v. Bacon (2010) 50 Cal. 4th
1082, 1103.) Accordingly, on appeal, the juvenile court’s decision as to whether the
foundational evidence is sufficient is reviewed for abuse of discretion. (In re K.B., supra,
238 Cal.App.4th at p. 995.)
B. The Juvenile Court Did Not Abuse its Discretion in Concluding the
Photographs Were Sufficiently Authenticated
Minor contends the images contained in People’s exhibit 2 were not sufficiently
authenticated. His argument has a legal and a factual component. As a legal matter,
Minor argues heightened standards of authentication should be required for the images.
In Minor’s view, “[p]roper authentication of the images required the prosecution to
identify the scene and its coordinates in time and place, and to show that the images were
genuine for the purpose offered.” He further contends that “since the images were from a
cell phone, more precise technical details and a higher degree of scrutiny was required
than for . . . film photographs[.]” On the facts, Minor disputes the sufficiency of the
authentication evidence on which the trial court relied, and he suggests the images might
not have been taken by the cell phone or might have been faked or manipulated in some
way. We disagree with Minor on both counts.
8
1. There Are No Heightened Authentication Requirements for Digital
Images
First, contrary to Minor’s contentions, California law does not subject digital
images such as those at issue here to heightened foundational standards. Indeed, in
People v. Goldsmith (2014) 59 Cal. 4th 258 (Goldsmith), a case upon which Minor relies,
the California Supreme Court expressly declined “to require a greater showing of
authentication for the admissibility of digital images merely because in theory they can
be manipulated.” (Id. at p. 272.) Instead, it concluded “[t]he standard foundational
showing for authentication of a photograph, video, or other writing will suffice” for
digital images. (Ibid.) “No elaborate showing of the accuracy of the recorded data is
required.” (People v. Dawkins (2014) 230 Cal. App. 4th 991, 1003 [affirming sufficiency
of authentication of digital audio recording].) Thus, under Goldsmith, the foundation for
a digital image may be supplied by the person taking the photograph or by a person who
witnessed the event being recorded. (Goldsmith, supra, 59 Cal.4th at p. 268.)
Alternatively, authentication “may be supplied by other witness testimony, circumstantial
evidence, content and location. [Citations.] Authentication also may be established ‘by
any other means provided by law’ (§ 1400), including a statutory presumption.” (Ibid.)
2. The Evidence of Authentication Was Sufficient
People’s exhibit 2 was offered to show Minor had possessed a sawed-off rifle on
or about the charged date. The images at issue were found intermingled with texts
collected on Minor’s cell phone. The phone itself was in Minor’s possession when the
images were discovered. The juvenile court could properly consider this circumstantial
evidence in determining whether the images had been sufficiently authenticated. (See
People v. Smith (2009) 179 Cal. App. 4th 986, 1002 [documents sufficiently authenticated
where they were found in defendant’s office intermingled with other documents
authenticated by testifying victims].) Moreover, Murphy identified People’s exhibit 2 as
the printout he made of the photographs he discovered on the cell phone confiscated from
Minor, photographss that were later uploaded to the school computer. He testified he had
9
taken the cell phone from Minor’s pocket after a struggle in which Minor attempted to
retain possession of the phone.
The parties do not dispute Minor is depicted in some of the photographs, and there
is also no dispute that the item he is depicted holding in the photograph on the first page
at least appeared to be the firearm confiscated at school. Murphy identified the first page
of People’s exhibit 2 as depicting Minor holding the confiscated firearm he had identified
as the one in the principal’s office that morning at school. Officer Hopwood identified
the firearm depicted in the exhibit as the gun and the attached magazine he placed in
evidence in the principal’s office that day. Murphy and Bordi testified Minor’s
appearance as depicted in the photographs was consistent with how he looked on or about
February 21, 2014, including his wearing a sweatshirt like the one he had on in the
photographs.
In addition, there was other corroborating evidence before the trial court. The
court could reasonably infer Minor had struggled with the administrators to prevent them
from finding the photographs on his cell phone after the gun was confiscated. Indeed,
when Bordi spoke with Minor about implementing a suspension for his behavior that day,
Minor became irate and responded, “ ‘Those are my photos. You can’t do that.’ ” Such a
statement could be viewed as an admission by Minor that the photographs were authentic.
(Evid. Code, § 1414, subd. (a) [writing may be authenticated by evidence that “party
against whom it is offered has . . . admitted its authenticity”]; People v. Lynn (1984) 159
Cal. App. 3d 715, 735 [defendant’s handwritten notes sufficiently authenticated under
Evid. Code, § 1414 where defendant told inmate who turned notes over to authorities that
he “ ‘really fucked up, giving the notes over’ ”].) Given all of this evidence, the trial
court’s conclusion that People’s exhibit 2 was properly authenticated was not an abuse of
discretion.2
2
Citing People v. Beckley (2010) 185 Cal. App. 4th 509 (Beckley), Minor contends the
digital images at issue in this case “present greater accuracy and reliability concerns”
than ordinary photographs. Minor quotes Beckley’s observation that “digital photographs
can be changed to produce false images” (id. at p. 515), and he speculates the
10
II. California Has Subject Matter Jurisdiction Over the Offenses
Minor contends the trial court lacked subject matter jurisdiction, because the
evidence failed to establish the offenses were committed within the State of California.
According to Minor, the prosecution based the charges on the photographs recovered
from Minor’s cell phone, and he claims there was no evidence of where those
photographs were taken. Thus, in his view, the trial court lacked subject matter
jurisdiction.
Minor suggests the evidence was lacking because there was no GPS data attached
to the photographs showing where they were taken. He cites no authority holding such
evidence is necessary to establish where photographs were taken, and we decline to adopt
any such requirement. Here, the People offered significant circumstantial evidence upon
which the juvenile court could rely in concluding the offense was committed in
California. For example, Minor had attended Antioch High School in Contra Costa
County for the entire year. On the date of the offense, the firearm Minor was shown
holding in People’s exhibit 2 was brought to his school and placed in a trash can by a
student known to him. School officials testified that Minor’s appearance in the
photographs with the firearm matched his appearance on or about that date, including the
sweatshirt he wore to school at the time. His attendance record for the relevant time
period showed no out-of-state absences. Perhaps more important, Minor’s suspicious
conduct immediately before and after discovery of the photographs permitted the trial
court to find he was aware of the firearm’s presence at the school. His conduct could be
read as reflecting awareness that the photographs inculpated him in the crime.
Moreover, Minor’s opening brief points to absolutely no evidence suggesting he
had ever been absent from the state. Although Minor’s trial counsel alluded in his
photographs taken from Minor’s cell phone might have been manipulated. For this
reason, Minor appears to suggest the People were required to present more extensive
foundational evidence to authenticate them. But as we have noted, Minor’s argument is
foreclosed by Goldsmith. (Goldsmith, supra, 59 Cal.4th at p. 272 [refusing “to require a
greater showing of authentication for the admissibility of digital images merely because
in theory they can be manipulated”].)
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questioning to the possibility that Minor might have gone to Reno or Las Vegas at some
unspecified time, Minor’s briefs offer nothing other than speculation on this point. Thus,
the trial court could properly rely on the circumstantial evidence set forth above to
conclude Minor committed the offense in California. The value of the evidence is not
diminished by Minor’s unfounded suggestion that the crime might have occurred
elsewhere.
III. Minor’s Motion to Suppress Was Properly Denied
Minor contends the juvenile court erred in denying his motion to suppress
evidence because the search of his cell phone lacked sufficient justification, was
excessively intrusive, and required a warrant. We will examine these contentions after
explaining the standards governing searches of students by school officials and the scope
of our review.
A. Governing Law and Standard of Review
“[S]chool officials may conduct a search of the student’s person and personal
effects based on a reasonable suspicion that the search will disclose evidence that the
student is violating or has violated the law or a school rule. ‘Reasonable suspicion’ is a
lower standard than probable cause. Ultimately, the legality of the search ‘depend[s],
simply, on the reasonableness, under all the circumstances, of the search.’ ” (In re Cody
S. (2004) 121 Cal. App. 4th 86, 91, fn. omitted (Cody S.), quoting T.L.O., supra, 469 U.S.
at p. 341.) In T.L.O., “the court held that teachers and school officials need not obtain a
warrant or have probable cause to search a student. ‘Rather, the legality of a search of a
student should depend simply on the reasonableness, under all the circumstances, of the
search.’ [Citation.] The court set forth a twofold inquiry for determining the
reasonableness of a student search. The action must be ‘justified at its inception’ and the
search, as actually conducted, must be ‘ “reasonably related in scope to the circumstances
which justified the interference in the first place.” ’ [Citation.] ‘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
12
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.’ [Citation.]” (In re
William V. (2003) 111 Cal. App. 4th 1464, 1469 (William V.).)
On appeal from the denial of Minor’s motion to suppress, we review the evidence
in the light most favorable to the juvenile court’s ruling. (William V., supra, 111
Cal.App.4th at p. 1468.) We must uphold the lower court’s express or implied findings if
they are supported by substantial evidence, but we independently determine whether
those facts support the juvenile court’s legal conclusions. (Ibid.) “As far as the legality
of the search is concerned, it is irrelevant that the court relied on an erroneous legal
theory if the court’s ruling was correct on any legal theory which is applicable to the
case.” (Cody S., supra, 121 Cal.App.4th at p. 92, fn. 4.) Finally, because the presence of
weapons on school campuses is now an unfortunate fact of modern American life, “[w]e
must be cognizant of this alarming reality as we approach our role in assessing
appropriate responses by school administrators to campus safety issues.” (In re J.D.
(2014) 225 Cal. App. 4th 709, 714.)
B. The Search Was Justified at its Inception
Minor contends the search of his cell phone was not justified at its inception
because there was no reasonable suspicion he was guilty of wrongdoing. We disagree.
The evidence before the juvenile court showed a firearm and its magazine cartridge were
seized from a trash can where they had been discarded. Two students who were believed
to have been in possession of the firearm were brought into an administrator’s office for
questioning. Minor was present in the hallway outside the office where the student with
the gun was detained, and he was the only person walking back and forth outside the
office. Minor entered the office, and he lingered at the door even after being told to
leave. When a school official asked Minor to come into the office, Minor walked away
quickly and ignored the official’s order to stop. After he was taken into a vice principal’s
office, asked what he was doing outside the office and why he had ignored the official’s
directions, Minor immediately started fingering the cell phone in his pocket. He then
13
physically resisted when school administrators tried to keep him from manipulating his
phone and refused to explain why he had resisted them. Minor was also acquainted with
the student who had brought the concealed weapon onto campus, and that student had
triggered an incident himself by trying to communicate with someone on a cell phone
during his own questioning.3
Based on these facts, the school officials had “reasonable grounds for suspecting
that the search [would] turn up evidence that the student ha[d] violated or [was] violating
either the law or the rules of the school.” (William V., supra, 111 Cal.App.4th at
p. 1469.) This is particularly true when one considers the gravity of the situation that
initially gave rise to the search—the discovery of a firearm and magazine on school
grounds. (See In re J.D., supra, 225 Cal.App.4th at pp. 716-717 [upholding as
reasonable locker search and other measures taken by school officials after receiving
report that student involved in earlier shooting was present on campus].) “The need of
schools to keep weapons off campuses is substantial. Guns . . . pose a threat of death or
serious injury to students and staff. The California Constitution, article I, section 28,
subdivision [(f)(1)], provides that students and staff of public schools have ‘the
inalienable right to attend campuses which are safe, secure and peaceful.’ ” (In re
Latasha W. (1998) 60 Cal. App. 4th 1524, 1527.) Here, the facts outlined above—
particularly Minor’s evasive behavior and resistance to school officials—suggested he
was either involved in a crime or was trying to hide evidence of one. (In re H.M. (2008)
167 Cal. App. 4th 136, 144 [minor’s unusual, suspicious behavior and flight from scene
“strongly suggested criminal activity was afoot”].) The juvenile court could properly
find the search justified at its inception.
3
We need not ask whether or to what extent the school officials relied on these particular
facts. Their search will be found reasonable under the Fourth Amendment “ ‘ “as long as
the circumstances, viewed objectively, justify [the] action.” [Citation.]’ ” (People v.
Letner and Tobin (2010) 50 Cal. 4th 99, 145.)
14
C. No Warrant Was Required
Minor also contends school officials were required to obtain a warrant before
searching the data on his cell phone. In a brief, one-paragraph argument to the juvenile
court, Minor asserted public school officials may not search a cell phone without a
warrant. He relied on the United States Supreme Court’s decision in Riley v. California
(2014) 134 S. Ct. 2473 (Riley). At the hearing on the motion to suppress, however,
Minor’s trial counsel did not mention the warrant requirement, arguing instead that the
search was not justified at its inception and was unreasonable in scope. Trial counsel also
argued that T.L.O. “sets out the two-pronged determination of reasonableness[.]” Thus,
while Minor’s contentions on appeal focus on Riley, his counsel did not bring that case up
at the hearing on Minor’s motion to suppress. The People therefore contend Minor has
forfeited this argument. Even if the argument has been properly preserved for appeal, it
is unavailing.
Minor’s argument suffers from a number of flaws. First, in contending that a
warrant was required before school officials could search the contents of his cell phone,
Minor relies heavily on Riley. There, however, the United States Supreme Court
explicitly based its holding on the applicability of the warrant requirement. (Riley, supra,
134 S.Ct. at p. 2493.) In contrast, T.L.O. “recognized an exception to the warrant and
probable cause requirement for searches conducted by public school officials.” (In re
Joseph G. (1995) 32 Cal. App. 4th 1735, 1739, italics added.) As the United States
Supreme Court explained, “[t]he warrant requirement, in particular, is unsuited to the
school environment: requiring a teacher to obtain a warrant before searching a child
suspected of an infraction of school rules (or of the criminal law) would unduly interfere
with the maintenance of the swift and informal disciplinary procedures needed in the
schools. Just as we have in other cases dispensed with the warrant requirement when ‘the
burden of obtaining a warrant is likely to frustrate the governmental purpose behind the
search,’ [citation], we hold today that school officials need not obtain a warrant before
searching a student who is under their authority.” (T.L.O., supra, 469 U.S. at p. 340; see
also Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 656 [“Fourth Amendment
15
rights . . . are different in public schools than elsewhere; the ‘reasonableness’ inquiry
cannot disregard the schools’ custodial and tutelary responsibility for children.”].) By
overlooking this key distinction between T.L.O. and Riley, Minor fails to satisfy his
burden of demonstrating error. (Cf. People v. Williams (1999) 20 Cal. 4th 119, 129 [in
making motion to suppress, defendants must do more than assert that search was without
a warrant; defendants must also show why no exception to warrant requirement applies].)
Second, as the People point out, Riley concerned “the reasonableness of a
warrantless search incident to a lawful arrest.” (Riley, supra, 134 S.Ct. at p. 2482.) The
individuals subjected to the searches in Riley were both adults, and neither arrest occurred
in the school context. (See id. at pp. 2480, 2481-2482 [one petitioner searched in
conjunction with arrest for firearms possession after traffic stop and the other searched
after arrest for distribution of crack cocaine].) Although Minor admits “the matter of a
school search was not before the Riley Court,” he offers us no case applying Riley to the
search of a high school student’s cell phone. Riley did not address the particular factual
situation before us, and cases are not authority for propositions not considered therein.
(E.g., People v. Knoller (2007) 41 Cal. 4th 139, 154-155.)
Third, quite apart from the absence of authority on the point, Riley itself
acknowledged certain “fact-specific threats may justify a warrantless search of cell phone
data.” (Riley, supra, 134 S.Ct. at p. 2494.) The Riley court alluded to hypothetical
situations such as “a suspect texting an accomplice who, it is feared, is preparing to
detonate a bomb[.]” (Ibid.) Here, school officials were confronted by a situation in
which a loaded firearm had been discovered on school property. They were concerned
Minor could be using his cell phone to communicate with students who might possess
another firearm or weapon the officials did not know about. In these circumstances,
“ ‘[t]he special need for an immediate response to behavior that threatens . . . the safety of
schoolchildren and teachers . . . justifies the Court in excepting school searches from the
warrant and probable-cause requirement, and in applying a standard determined by
16
balancing the relevant interests.’ ”4 (In re J.D., supra, 225 Cal.App.4th at p. 715, quoting
T.L.O., supra, 469 U.S. at p. 353 (conc. opn. of Blackmun, J.).)
Finally, the search in this case occurred before the United States Supreme Court
issued its opinion in Riley. The People argue that prior to Riley, T.L.O. furnished the
standard for judging the reasonableness of any search conducted on a student on school
grounds. Thus, they contend the school officials in this case conducted the challenged
search “in objectively reasonable reliance on binding appellate precedent.” (Davis v. U.S.
(2011) 131 S. Ct. 2419, 2423-2424 (Davis).) The search “therefore was not subject to the
exclusionary rule.” (People v. Youn (2014) 229 Cal. App. 4th 571, 573.) We agree with
the People. Even if we assume the holding in Riley applies to this situation, we decline to
hold the school officials were bound by a standard that did not yet exist.5
D. The Juvenile Court Applied the Proper Standard
Quoting a two-paragraph excerpt from the juvenile court’s ruling on the
suppression motion, Minor contends the court applied the wrong standard in denying his
motion. But Minor’s selective quotation omits the vast bulk of the trial judge’s
comments, which total almost three pages in the reporter’s transcript. Thus, Minor bases
his contention on an artificially truncated version of the court’s explanation for its ruling.
Looking at the full ruling, we discern no error.
4
This also suffices to answer Minor’s contention that the search was excessively
intrusive. Minor asserts the search into the data on the phone was unjustified and that
any search should have been limited to determining whether there had been weapons-
related communications. Here, the photographs were intermingled with Minor’s text
messages. Given the danger posed by the possible presence of firearms on campus, the
circumstances certainly justified the use of “swift and informal . . . procedures” to
ascertain the extent of the threat. (T.L.O., supra, 469 U.S. at p. 340.)
5
Minor contends the People may not rely on Davis because they did not raise this
argument in the trial court and thus have not preserved it for appeal. Minor
misapprehends both the parties’ respective burdens on appeal and the role of this court.
As respondent, the People may urge any ground for affirmance supported by the record.
(E.g., L.K. v. Golightly (2011) 199 Cal. App. 4th 641, 644.) And as an appellate court, our
“review is confined to the correctness or incorrectness of the trial court’s [suppression]
ruling, not the reasons for its ruling.” (People v. Superior Court (2012) 204 Cal. App. 4th
1004, 1011.)
17
Although the juvenile court did not quote verbatim the language from controlling
case law, it is clear it had the proper test in mind in making its ruling. The court
explained it had “to determine whether or not the school administrators acted reasonably
under all of the circumstances that they were presented with at the time.” (See T.L.O.,
supra, 469 U.S. at p. 341 [“the legality of a search of a student should depend simply on
the reasonableness, under all the circumstances, of the search”].) The court reviewed the
circumstances confronting the school officials and commented on Minor’s suspicious
behavior. It then noted, “you do have to see whether or not [the search] was reasonable
to deal with the specific and special needs or the issues presented at the time.” (See id. at
p. 342, fn. omitted [“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”].) It noted the school
administrators feared there might be other guns on campus, a possibility that “presents a
very extreme risk to the student population.” The court found “it was justified to look at
the phone itself to see if [Minor] was indeed communicating, as it appeared he was
manipulating the object, and the other student involved who did bring the gun was
attempting to use his cell phone to communicate.” It therefore found the search
“reasonable under the circumstances, and . . . limited in scope and in intrusion.” (See
ibid.) This approach was fully consistent with T.L.O. and the California cases applying
it.
IV. The Prosecutor and the Juvenile Court Complied with their Obligations Under the
Deferred Entry of Judgment Act
Minor next contends the judgment must be reversed because the prosecutor and
the juvenile court failed to comply with their mandatory duties under the Deferred Entry
of Judgment Act (DEJ Act; § 790 et seq.), thereby violating his right to due process.
Minor argues the prosecution failed to comply with its duty to provide notice of his
eligibility for DEJ and notice of a DEJ hearing. He further argues the court failed to
comply with its mandatory duties of personally serving the DEJ citation and holding a
suitability hearing.
18
A. Factual Background
On April 28, 2014—the day the petition was filed—the prosecutor filed a Judicial
Council form JV-750 “Determination of Eligibility Deferred Entry of Judgment—
Juvenile.” That same day, the prosecutor also filed Judicial Council form JV-751, a
“Citation and Written Notification for Deferred Entry of Judgment—Juvenile.” The
latter form advised Minor that if the court granted DEJ, he would be required “[t]o admit
that he . . . committed the offense or offenses alleged to have been committed.” (See
§ 791, subd. (a)(3) [prosecutor’s notification shall include “[a] clear statement that, in lieu
of jurisdictional and disposition hearings, the court may grant a deferred entry of
judgment with respect to any offense charged in the petition, provided that the minor
admits each allegation contained in the petition and waives time for the pronouncement
of judgment”]; Cal. Rules of Court, rule 5.800(d)(1)-(2) [court may grant DEJ “[i]f the
child admits each allegation contained in the petition as charged and waives the right to a
speedy disposition hearing”].) The form JV-751 does not state when the hearing will be
held. The following day, the prosecutor filed a notice of hearing on the petition, advising
Minor and his parents of a hearing on May 14, 2014, for “formal reading of petition,
advisement of rights, and plea.”
Minor did not appear at the May 14 hearing, and it was continued because the
public defender appearing on Minor’s behalf indicated there was “an office conflict and
personal conflict.” At the continued hearing on August 8, 2014, Minor appeared with
counsel. Counsel informed the court of Minor’s new address and waived reading of the
petition and formal advisement of rights. Minor’s counsel also entered a denial of the
charges “and set the matter both for contest . . . with an intervening pretrial conference.”
Minor’s counsel addressed the court regarding what he called “some type of mix
up at his initial arraignment[.]” According to trial counsel, Minor and his father had
indeed come to court on the day of the arraignment but had waited outside the wrong
courtroom. Addressing Minor’s failure to appear, the juvenile court noted the notice to
appear had been mailed at or about the same time the petition was filed. The court stated
19
it had just been advised that Minor and his parents had a new address, but it noted none
of the documents had been returned. It found notice had been given as required by law.
At the close of the August 8 hearing, the juvenile court set a pretrial hearing for
August 13. The clerk’s transcript shows pretrial hearings were held on both August 13
and 14 at which Minor appeared with counsel, but the record before us contains no
reporter’s transcripts of those hearings. The minute order from the August 14 hearing
states the court set a contested jurisdiction hearing for August 29. On that date, Minor,
his parents, and counsel all appeared for the contested hearing.
B. Minor Has Not Shown He Failed to Receive Notice of DEJ Eligibility
Section 790, subdivision (b) requires the prosecutor to make information about a
minor’s suitability for DEJ “available to the minor and his or her attorney.”
Implementing the statutory command of section 792, California Rules of Court,
rule 5.800(c) requires that the juvenile court “issue Citation and Written Notification for
Deferred Entry of Judgment-Juvenile (form JV-751) to the child’s custodial parent,
guardian, or foster parent.” The form must be personally served on the “custodial adult”
at least 24 hours before the time set for the appearance hearing. (Cal. Rules of Court,
rule 5.800(c).)
On this record, Minor has failed to demonstrate he did not receive notice of his
eligibility for DEJ. He complains there is no proof of service in the record demonstrating
the DEJ forms were served on him and his parents. But at the August 8 hearing, Minor,
through counsel, represented to the trial court that he had come to court on May 14.
Obviously, if this representation were true, then it would be clear Minor received notice
of the hearing. And since it appears the petition and all of the notices were sent to the
same address, we would presume he also received copies of forms JV-750 and JV-751.
Moreover, in the absence of evidence to the contrary, we must presume the
juvenile court properly performed its official duty. (Evid. Code, § 664; see § 792
[requiring issuance of citation to custodial parent]; Cal. Rules of Court, rule 5.800(c)
[court must issue Judicial Council form JV-751 to minor’s custodial parent].) It is
Minor’s “burden to provide this court with a complete record on appeal.” (In re Joshua
20
S. (2011) 192 Cal. App. 4th 670, 681, fn. 7.) As the People note, Minor did not include in
the record the reporter’s transcripts of the pretrial hearings held on August 13 and 14,
2014 (between the detention and the jurisdictional hearings) where proof of service may
have been acknowledged or waived.6 (See In re Kathy P. (1979) 25 Cal. 3d 91, 102
[where record did not show whether minor consented to adjudication under particular
statutory procedure, court “will respect the presumption that official duty has been
regularly performed”]; In re Debra S. (1982) 135 Cal. App. 3d 378, 384 [minor failed to
show error by means of adequate record where she failed to request that reporter’s
transcript of proceedings be prepared].)
C. The Juvenile Court Was Not Required to Hold a Suitability Hearing
Nor did the trial court err by not holding a hearing to consider Minor’s suitability
for DEJ. Under section 791, subdivision (a)(3), the prosecutor’s written notice to the
minor must include a clear statement that the juvenile court “may grant a deferred entry
of judgment with respect to any offense charged in the petition, provided that the minor
admits each allegation contained in the petition and waives time for the pronouncement
of judgment[.]” Subdivision (b) of that section makes clear DEJ will be available only if
the minor fulfills certain conditions: “If the minor consents and waives his or her right to
a speedy jurisdictional hearing, the court may refer the case to the probation department
or the court may summarily grant deferred entry of judgment if the minor admits the
charges in the petition and waives time for the pronouncement of judgment.” (§ 791,
subd. (b), italics added.)
Cases interpreting this statutory scheme have held that a suitability hearing is not
required if the minor, after receiving notice of eligibility for DEJ, rejects DEJ
consideration by contesting the charges. (In re D.L. (2012) 206 Cal. App. 4th 1240, 1244.)
As Division One of this court recently explained, “a juvenile court is not required to rule
on a minor’s possible suitability for a DEJ where the minor is properly advised of his or
her DEJ eligibility and fails to admit the charges or waive the jurisdictional hearing
6
We note that Minor’s 35-page reply brief does not respond to the People’s arguments
regarding the inadequacy of the record.
21
because such a failure amounts to a rejection of the DEJ’s expedited procedure.” (In re
Trenton D. (2015) 242 Cal. App. 4th 1319, 1325.) We have concluded above that Minor
received proper notice of his eligibility for DEJ. Despite receiving notice and despite
being represented by counsel, he neither admitted the charges nor waived the
jurisdictional hearing. Thus, Minor’s actions “were tantamount to a rejection of DEJ.”
(In re Kenneth J. (2008) 158 Cal. App. 4th 973, 980 (Kenneth J.).) The juvenile court may
not “start the DEJ process in the teeth of the minor’s opposition[.]” (Id. at p. 979.)
Minor was detained, and from the outset, his counsel sought a contested jurisdictional
hearing. At no time after requesting the contested hearing did counsel suggest DEJ might
be appropriate. (Cf. In re A.I. (2009) 176 Cal. App. 4th 1426, 1429-1432, 1435 [minor
first rejected DEJ but later requested consideration for DEJ after denial of motion to
suppress].) Minor simply “evince[d] no interest whatsoever” in DEJ. (Kenneth J., supra,
158 Cal.App.4th at p. 980.)
This case closely resembles In re Usef S. (2008) 160 Cal. App. 4th 276 (Usef S.).
There, the prosecutor “determined [the minor] was eligible for DEJ, and provided written
notice of his eligibility to both [the minor] and the juvenile court.” (Id. at p. 281.) A DEJ
suitability hearing was scheduled, but the minor failed to appear, apparently because he
had not been personally served with notice. The hearing was continued, but at the
continued hearing “and at all subsequent hearings in the matter, the record reveals no
mention by anyone—not the juvenile court, appellant, his attorney, nor the prosecutor—
of the DEJ determination.” (Ibid.) The minor’s attorney later indicated his client was
denying the allegations of the petition and requested a contested jurisdictional hearing.
On appeal, the minor contended the juvenile court’s failure to address the DEJ
issue was error and argued the court had failed to discharge a mandatory statutory duty to
determine his suitability for DEJ. (Usef S., supra, 160 Cal.App.4th at p. 281.) The Court
of Appeal rejected the argument, following Kenneth J., supra, 158 Cal. App. 4th 973.
(Usef S., supra, 160 Cal.App.4th at pp. 285-286.) Usef S. explained that “where the
minor declines to admit each allegation in the petition, as [section 791] subdivision (a)
requires, no duty on behalf of the juvenile court arises under subdivision (b) to refer the
22
case to the probation department or to summarily grant DEJ[.]” (Usef S., supra, 160
Cal.App.4th at p. 285.) Here, Minor did not admit the allegations of the petition and
instead requested a contested jurisdictional hearing. As a consequence, the juvenile court
was under no duty to refer the matter to the probation department or to summarily grant
DEJ.7 (Ibid.)
V. Substantial Evidence Supports the Finding that Minor Knowingly Possessed an
Assault Weapon
Minor next raises a plethora of challenges to the sufficiency of the evidence
showing he knowingly possessed an assault weapon and a short-barreled rifle. We will
address these challenges after setting forth our standard of review.
A. Standard of Review
“Our review of [Minor’s] substantial evidence claim is governed by the same
standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of
the evidence, we must determine “whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role
on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must
presume in support of the judgment the existence of every fact that the trier of fact could
7
Minor’s reliance on In re C.W. (2012) 208 Cal. App. 4th 654 (C.W.) and In re Luis B.
(2006) 142 Cal. App. 4th 1117 (Luis B.) is misplaced. In C.W., the prosecutor determined
the minor was eligible for DEJ and filed form JV-750 but failed to complete or serve
form JV-751, or give the statutorily required notice of the minor’s eligibility. The minor
denied the allegations and requested a contested hearing. On appeal, he complained
about the prosecutor’s failure to give the requisite notice of his eligibility for DEJ, and
the court’s failure to determine his suitability. Division Four of this court agreed and
remanded the matter for further appropriate proceedings given the prosecutor’s failure to
comply with notice in a case where the minor was eligible for DEJ. (C.W., supra, 208
Cal.App.4th at pp. 660-662.) In Luis B., the prosecutor completely failed to determine in
the first instance whether the minor was eligible for DEJ, never completed form JV-750,
and never provided any type of notice to the minor. The appellate court also remanded
the matter given the prosecutor’s failure to determine the minor’s eligibility and comply
with the notice requirements. (Luis B., supra, 142 Cal.App.4th at pp. 1121-1123.) Those
cases are clearly inapposite, because unlike the case before us, the minors were never
given the statutorily required notice of their DEJ eligibility.
23
reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances
reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does not
warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal. 4th
1020, 1026.)
“The substantial evidence standard of review is generally considered the most
difficult standard of review to meet, as it should be, because it is not the function of the
reviewing court to determine the facts.” (In re Michael G. (2012) 203 Cal. App. 4th 580,
589.) Appellants should therefore “cast their arguments in this court within the confines
of that basic principle.” (Id. at p. 584.) “Thus, to prevail on a sufficiency of the evidence
argument, the defendant must present his case to us consistently with the substantial
evidence standard of review. That is, the defendant must set forth in his opening brief all
of the material evidence on the disputed elements of the crime in the light most favorable
to the People, and then must persuade us that evidence cannot reasonably support” the
factfinder’s decision. (People v. Sanghera (2006) 139 Cal. App. 4th 1567, 1574.) The
failure to acknowledge the proper standard of review may be treated as a concession of
lack of merit. (James B. v. Superior Court (1995) 35 Cal. App. 4th 1014, 1021.)
B. Actual Firearm
Minor argues there was insufficient evidence he handled an actual firearm. He
again contends that since the photographs were digital images, they were easily
manipulable and might be composites. This contention essentially rehashes his argument
that the photographs were insufficiently authenticated, an argument we have rejected.
“ ‘The fact conflicting inferences can be drawn regarding authenticity goes to the
document’s weight as evidence, not its admissibility.’ [Citation.]” (Goldsmith, supra, 59
Cal.4th at p. 267.) When it comes to photographs, “[w]e are not entitled . . . to weigh the
evidence or its effect and value, nor are we entitled to substitute our deductions for those
of the trial court where two or more inferences can be reasonably drawn from such
evidence, because our power is limited to a determination of whether such evidence is of
sufficient substance to support the trial court’s finding.” (South Santa Clara Val. Water
24
Conservation Dist. v. Johnson (1964) 231 Cal. App. 2d 388, 398.) We decline Minor’s
implicit invitation to reweigh the evidence before the juvenile court.
Minor also speculates the firearm might have been a replica, and he contends
“exacting evidence must be required to establish the true nature of an object in a digital
image that looks like a firearm.” The law is clear, however, that the fact an object is a
firearm may be established by either direct or circumstantial evidence. (People v.
Monjaras (2008) 164 Cal. App. 4th 1432, 1435.)8 Here, Officer Hopwood identified the
item depicted in People’s Exhibit 2 as the gun and attached magazine he had taken into
evidence in the principal’s office. Murphy also identified the photograph as depicting
that gun, explaining that the photograph on the first page of the exhibit was “the firearm
that was presented to me earlier in questioning.” The juvenile court could certainly
compare the item these witnesses identified as the seized firearm with the item Minor is
holding in the photograph and conclude it was the same weapon. We must accept logical
inferences the juvenile court might have drawn from the circumstantial evidence.
(People v. Sanghera, supra, 139 Cal.App.4th at p. 1573.)
C. Assault Weapon
Minor also contends there was insufficient evidence the object was an assault
weapon. Penal Code section 30605 (formerly Penal Code section 12280, subdivision (b))
states in relevant part: “Any person who, within this state, possesses any assault weapon,
except as provided in this chapter, shall be punished by imprisonment in a county jail for
a period not exceeding one year, or by imprisonment pursuant to subdivision (h) of
Section 1170.” Penal Code section 30515, subdivisions (a)(1)-(8) define the term
“ ‘assault weapon.’ ” Minor contends the firearm at issue here does not meet the
definition set out in subdivisions (a)(1) through (a)(3) of Penal Code section 30515. He
8
In People v. Monjaras, the Court of Appeal rejected the defendant’s contention that
because the victim of an armed robbery “could not say whether the pistol in defendant’s
waistband was a gun or a toy,” there was insufficient evidence the weapon was real. (164
Cal.App.4th at p. 1435.) The court published its opinion “to say in no uncertain terms
that a moribund claim like that raised by defendant has breathed its last breath.” (Ibid.)
We reject Minor’s effort to resurrect this moribund claim.
25
argues the firearm was not “a semiautomatic centerfire rifle” nor did it have the other
characteristics set out in those three subdivisions of the statute.
The People contend the firearm is one described in Penal Code section 30515,
subdivision (a)(4)(D) in that it is “[a] semiautomatic pistol that has the capacity to accept
a detachable magazine and . . . [t]he capacity to accept a detachable magazine at some
location outside the pistol grip.” They note that in the juvenile court, the defense did not
dispute the prosecutor’s characterization of the weapon as “a semiautomatic pistol with
the capacity to accept an attached magazine. And that magazine is located at some
location outside the pistol grip.” Officer Hopwood, whom Minor characterizes as “a
weapons expert,” testified that modifications to the original rifle left it with a six-inch
barrel and a pistol grip, and he stated it could be considered a pistol “[i]f the length is
within pistol standard.” The firearm introduced in evidence as People’s exhibit 1A met
the “pistol standard” because the barrel is less than 16 inches. (See Pen. Code, § 16530,
subd. (a) [“the term[] . . . ‘pistol’ . . . appl[ies] to . . . any device designed to be used as a
weapon, from which is expelled a projectile by the force of any explosion, or other form
of combustion, and that has a barrel less than 16 inches in length”].) Officer Hopwood
also testified the 30-round magazine attaches and detaches “[r]ight in front of the trigger
housing” and “[o]utside the pistol grip[.]” The photographs in People’s exhibit 2 show
the pistol grip and the attached magazine outside the pistol grip. “Minor does not
contend that the rifle’s assault weapon characteristics were obscure. The rifle was also
introduced into evidence, allowing the trial court to examine it and determine that issue
for itself.” (In re Daniel G. (2004) 120 Cal. App. 4th 824, 832 (Daniel G.).) There was
sufficient evidence from which the juvenile court could conclude People’s exhibit 1A
was an assault weapon within the meaning of the statute.
D. Knowledge
Minor contends there was insufficient evidence he knew the firearm was an assault
weapon. He contends his “connection with the object was fleeting and attenuated.”
Alluding to the photograph of him holding the weapon, Minor asserts that “the passive
manner in which he appears to be holding the object . . . indicates his lack of familiarity
26
with firearms and his lack of awareness of its characteristics.” We find this argument
meritless.
In the juvenile court, “the People [bore] the burden of proving [Minor] knew or
reasonably should have known the firearm possessed the characteristics bringing it within
the [Assault Weapons Control Act].” (In re Jorge M. (2000) 23 Cal. 4th 866, 887, fn.
omitted (Jorge M.).) “The question of the defendant’s knowledge or negligence is, of
course, for the trier of fact to determine, and depends heavily on the individual facts
establishing possession in each case. Nevertheless, . . . the Legislature presumably did
not intend the possessor of an assault weapon to be exempt from the AWCA’s strictures
merely because the possessor did not trouble to acquaint himself or herself with the gun’s
salient characteristics.” (Id. at pp. 887-888.) Knowledge may be proven
circumstantially. (Id. at p. 884.) Moreover, “because of the general principle that all
persons are obligated to learn of and comply with the law, in many circumstances a trier
of fact properly could find that a person who knowingly possesses a semiautomatic
firearm reasonably should have investigated and determined the gun’s characteristics.”
(Id. at p. 885.) Thus, “it ordinarily is reasonable to conclude that, absent ‘exceptional
cases in which the salient characteristics of the firearm are extraordinarily obscure, or the
defendant’s possession of the gun was so fleeting or attenuated as not to afford an
opportunity for examination,’ a person who knowingly possesses a semiautomatic
firearm reasonably would investigate and determine whether the gun’s characteristics
make it an assault weapon.” (People v. Taylor (2001) 93 Cal. App. 4th 933, 940.)
Judged by the foregoing standards, the People produced sufficient proof of
Minor’s knowledge in the juvenile court. Initially, we note a fundamental defect in
Minor’s argument. By inviting this court to draw inferences from the manner in which he
appears to be holding the weapon in the photograph, Minor asks us to engage in
factfinding. As we explained above, where more than one inference may be drawn from
photographic evidence, we may not substitute our deductions for those of the juvenile
court. (South Santa Clara Val. Water Conservation Dist. v. Johnson, supra, 231
Cal.App.2d at p. 398.)
27
Minor also contends there was no evidence that any of the gun’s physical
characteristics would have been apparent to “a criminally unsophisticated minor who had
passing contact with it, particularly not the centerfire aspect[.]” We disagree. Minor was
certainly able to see the gun’s shortened barrel, its attached magazine ahead of the trigger
guard, and its pistol grip just by looking at the gun when he held it. The outward
appearance of the firearm and the magazine would reasonably lead a person possessing it
to investigate and determine whether it had the characteristics of an assault weapon.
(People v. Taylor, supra, 93 Cal.App.4th at pp. 940-941.)
Minor argues, “[h]e was just one of four individuals who were photographed with
[the weapon], and his involvement was the briefest of any.”9 He therefore contends there
is reasonable doubt as to whether he knew or should have known of the gun’s
characteristics, because he is “one who was in possession for only a short time, or whose
possession was merely constructive, and only secondary to that of other joint
possessors[.]” (Jorge M., supra, 23 Cal.4th at p. 888.) Here, as in In re Daniel G., supra,
“[M]inor seizes on this language to contend his ‘fleeting possession’ as one of four
persons handling the weapon is insufficient evidence to show that he knew or should
have known the [gun] was an assault weapon.” (Daniel G., supra, 120 Cal.App.4th at
p. 832, fn. omitted.) But Minor cannot claim the weapon’s characteristics, such as its
“detachable magazine at some location outside of the pistol grip” (Pen. Code, § 30515,
subd. (a)(4)(D)) were obscure. (Daniel G., supra, 120 Cal.App.4th at p. 832.) The
firearm was also introduced in evidence, allowing the juvenile court to determine for
itself whether its characteristics as an assault weapon would have led a reasonable person
to investigate. “On this record, we hold that there was sufficient evidence to support a
finding that . . . [M]inor at least should have known the [firearm] was a prohibited assault
[weapon].” (Ibid.)
9
Minor does not explain why the juvenile court should have concluded his involvement
was briefer than that of the others who were photographed holding the weapon.
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E. Possession
Finally, Minor contends there was insufficient evidence he possessed the weapon.
This contention is easily refuted, because the juvenile court had before it a photograph of
Minor holding the weapon found at the school. Minor’s suggestion that he did not
possess the weapon because he was one of a number of individuals who briefly handled it
finds no support in the law. Possession may be shared with others. (People v. Sifuentes
(2011) 195 Cal. App. 4th 1410, 1417.) Indeed, possession need not even be physical, it
may also be constructive. (People v. Miranda (2011) 192 Cal. App. 4th 398, 410.) Here,
the People produced evidence of Minor physically holding the weapon. This is sufficient
to establish his possession of it. (Daniel G., supra, 120 Cal.App.4th at p. 831 [testimony
that the minor was seen holding a firearm and passing it to others sufficient to establish
possession].)
VI. The Juvenile Court Did Not Abuse its Discretion by Declaring the Offenses
Felonies
Minor’s next contention is that the juvenile court abused its discretion in declaring
the offenses felonies. He argues the court failed to consider all the relevant factors in
making its decision, thus rendering it arbitrary. We find no abuse of discretion.
Where 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 court shall declare
the offense to be a misdemeanor or felony.” (§ 702.) This is a matter entrusted to the
juvenile court’s discretion. (See People v. Superior Court (Alvarez) (1997) 14 Cal. 4th
968, 977.) The factors the court should consider in exercising its discretion include “ ‘the
nature and circumstances of the offense, the defendant’s appreciation of and attitude
toward the offense, or his traits of character as evidenced by his behavior and demeanor
at the trial.’ [Citation.]” (Ibid.) “We will not disturb the court’s decision on appeal
unless the party attacking the decision clearly shows the decision was irrational or
arbitrary.” (People v. Sy (2014) 223 Cal. App. 4th 44, 66.) “ ‘In the absence of such a
showing, the trial court is presumed to have acted to achieve legitimate sentencing
objectives, and its discretionary determination to impose a particular sentence will not be
29
set aside on review.’ [Citation.] Concomitantly, ‘[a] decision will not be reversed
merely because reasonable people might disagree. “An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial judge.”
[Citations.]’ [Citation.]” (Alvarez, supra, 14 Cal.4th at pp. 977-978.)
Minor has not demonstrated the juvenile court failed to consider the relevant
factors. In its ruling, the court discussed more than once the nature and circumstances of
the offense, explaining that it considered the offense extremely serious because of the
type of firearm involved and Minor’s failure to disclose its presence on a school campus.
(See Alvarez, supra, 14 Cal.4th at p. 978 [court should consider nature and circumstances
of the offense].) In addition, the juvenile court referred specifically to the fact that Minor
may have been high or drunk when he possessed the gun. (See ibid. [court should
consider defendant’s appreciation of and attitude toward the offense].) On this record,
Minor has not shown the juvenile court failed to consider the relevant factors in deciding
to classify the offenses as felonies, and we must therefore presume the court acted to
achieve legitimate sentencing objectives. (Id. at p. 977.)
VII. The Dispositional Order Must Be Modified
Minor points out a number of alleged defects in the dispositional order. First, he
contends the juvenile court erred by failing to specify his maximum term of confinement
(MTC). (See § 726, subd. (d)(1).) He contends his MTC was three years. The People
concede the juvenile court failed to specify the MTC, and they agree the MTC should be
three years, although they arrive at that conclusion for reasons different from Minor’s. In
his reply brief, Minor does not object to the People’s reasoning. We will therefore order
the dispositional order modified to reflect an MTC of three years. (See In re David H.
(2003) 106 Cal. App. 4th 1131, 1138.)
Minor also contends, and the People agree, that the juvenile court was obligated to
calculate his custody credits. The juvenile court stated Minor had been confined for “60
plus days” but it did not calculate the total number of custody credits. The date of
Minor’s transfer to OAYRF does not appear in the record, and therefore we cannot
ourselves determine the total number of days to which he is entitled. (Cf. In re J.M.
30
(2009) 170 Cal. App. 4th 1253, 1256 [appellate court calculated total confinement
credits].) We will accordingly remand the matter to the juvenile court and direct it to
calculate the total number of days of custody credits.
Minor contests the $200 restitution fine imposed by the juvenile court. He argues
the fine “appears to be based on both offenses.” The People contend this argument is
forfeited, because no objection was raised in the juvenile court. (See, e.g., People v.
Nelson (2011) 51 Cal. 4th 198, 227 [failure to object forfeited claim regarding defendant’s
inability to pay restitution fine].) Even if the claim has been properly preserved,
however, it fails. There is nothing in the record showing the juvenile court arrived at the
$200 figure in the way Minor assumes it did. “[T]he absence of information, i.e., a silent
record, . . . compels the application of the presumption of correctness.” (People v.
Leonard (2014) 228 Cal. App. 4th 465, 477, fn. 6.) Here, “[a]t best, the record shows a
basis for differing opinions of how the court calculated the $[200]. That is not sufficient
to establish a reversible abuse of discretion.” (Kenneth J., supra, 158 Cal.App.4th at
p. 981.)
VIII. The No-Contact Probation Condition Is Not Unconstitutionally Vague or
Overbroad
Minor challenges as unconstitutionally vague and overbroad a probation condition
requiring that he have “[n]o association or contact with” three named individuals. Minor
argues this condition is invalid because it lacks a distance limitation and a knowledge
requirement. In its oral explanation of the condition, the juvenile court stated, “That
means no hanging out with, texting, Facebooking, Instagramming, calling any of these
individuals. [¶] I don’t know if any of these individuals you are going to encounter at
[OAYRF]. To the extent you do, you are not to congregate with them when you are not
participating in program activities. [¶] So, in other words, during free time, you are not to
hang out with them in the rec room, that sort of thing.”
The People contend Minor’s distance limitation challenge is forfeited because his
counsel raised no objection below. They argue ordinary principles of forfeiture apply
because review of Minor’s challenge would require “scrutiny of individual facts and
31
circumstances[.]” (In re Sheena K. (2007) 40 Cal. 4th 875, 885 (Sheena K.).) In their
view, Minor’s distance limitation challenge does not “ ‘present “pure questions of law
that can be resolved without reference to the particular sentencing record developed in
the trial court.” [Citation.]’ ” (Id. at p. 889.) We agree. Indeed, in arguing for the
distance limitation, Minor contends, “The subjects of the no-contact order here may not
be readily identifiable to appellant due to the brief nature of their contact, if any, and the
possibility of changes in appearance.” Minor then cites to certain evidence before the
juvenile court and asks us to draw conclusions about what it does or does not show.
Thus, the scope of this condition and its constitutionality can be determined only by
reference to the sentencing record before the juvenile court. (See In re Luis F. (2009)
177 Cal. App. 4th 176, 182 [alleged defects in probation condition requiring minor to
continue taking prescribed medications could be determined only by facts in record
regarding medications minor had been taking prior to court order].) Therefore, this claim
has been forfeited.
Minor also contends the condition is vague because it does not include a
knowledge requirement.10 We disagree. First, the probation condition here at issue
identifies by name the three individuals with whom Minor is to have no contact. It is thus
unlike conditions that have been found unconstitutionally vague because they refer only
to categories of persons. (See In re Justin S. (2001) 93 Cal. App. 4th 811, 816 [probation
condition prohibiting association with gang members unconstitutionally overbroad unless
restricted to known gang members].) Here, an ordinary person would certainly
understand what behavior is prohibited. (In re Byron B. (2004) 119 Cal. App. 4th 1013,
1015,1018 [probation condition prohibiting contact with any person known to be
disapproved by a parent or probation officer “is not unreasonable, overbroad, or void for
vagueness”]; see Sheena K., supra, 40 Cal.4th at p. 892 [no-contact condition was
10
The California Supreme Court granted review in In re A.S. (2014) 227 Cal. App. 4th 400
[178 Cal. Rptr. 3d 319] review granted September 24, 2014, S220280. The court granted
review to determine whether no-contact probation conditions must be modified to include
an explicit knowledge requirement.
32
modified on appeal to include qualification that defendant have knowledge of who was
disapproved by her probation officer; modification made condition constitutionally
valid].) Second, the language of the condition must only be reasonably specific. (Id. at
p. 890.) The juvenile court provided very concrete examples of the types of conduct it
intended to prohibit. In light of its clarification, Minor can reasonably be expected to
understand what types of contact or association are forbidden. Finally, although Minor
raises the issue of possible unwitting violations, his concern is speculative. That is
particularly true here, where the probation condition notifies Minor “through . . .
reference to persons whom defendant [knows] to be disapproved of by” the juvenile
court. (Sheena K., supra, 40 Cal.4th at p. 891.)
DISPOSITION
The dispositional order is modified to reflect a maximum term of confinement of
three years. The matter is remanded to permit the juvenile court to calculate Minor’s
custody credits. In all other respects, the judgment is affirmed.
33
_________________________
Jones, P.J.
We concur:
_________________________
Simons, J.
_________________________
Needham, J.
A143376
34
Superior Court of the County of Contra Costa, No. J1400437, Rebecca C. Hardie, Judge.
Amanda K. Roze, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Jeffrey M. Laurence, Acting Senior Assistant Attorney General, Donna M.
Provenzano and Laurence K. Sullivan, Supervising Deputy Attorneys General for
Plaintiff and Respondent.
A143376
35