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In re C.B.

In re C.B.
08:19:2012





In re C






In re C.B.



















Filed 8/17/12 In re C.B. CA1/1

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.





IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
ONE




>










In re C.B.,
a Person Coming Under the Juvenile Court Law.





THE PEOPLE,

Plaintiff and Respondent,

v.

C.B.,

Defendant and Appellant.












A131536



(Contra
Costa County

Super. Ct.
No. J0901505)






Defendant
and appellant C.B. pleaded no contest to committing href="http://www.mcmillanlaw.com/">assault with a firearm and an
enhancement of personal use of a firearm.
He appeals from the dispositional order, claiming the juvenile court (a)
erred in denying his motion to suppress evidence seized during a probation
search of his residence and (b) abused its discretion by committing him to the
Division of Juvenile Facilities (DJF).
We conclude the juvenile court neither erred nor abused its discretion,
and affirm.

Factual and Procedural Backgroundhref="#_ftn1" name="_ftnref1" title="">[1]

On
May 5, 2010,href="#_ftn2" name="_ftnref2" title="">[2]
at 7:01 a.m., Detective Nathaniel
McCormack and 10 other employees of the Contra Costa Sheriff’s Department
conducted a probation search of defendant at an address on Madison Avenue in
Bay Point (the Madison Avenue residence).
Defendant was a suspect in a shooting that occurred on April 12.

Prior
to the search, Detective McCormack learned defendant was a ward of the juvenile
court and on probation after a sustained allegation of href="http://www.fearnotlaw.com/">unlawful possession of a firearm by a
minor in April 2009 and a sustained allegation of possession of rock cocaine in
September 2009. McCormack contacted
defendant’s probation officer, who indicated the terms of his probation allowed
search of his person and residence. The
probation officer also told McCormack defendant lived at the Madison Avenue
residence with his mother, Rachel B.
McCormack learned from a postal inspector there was “a change of address
on file directing mail from a previous address to . . . Madison Avenue in the
name of Rachel B[.],” effective January 29.
McCormack then drove by the Madison Avenue residence and ran
registration checks on the two vehicles at the residence. Both vehicles were registered in Rachel B.’s
name, one at the Madison Avenue residence.

When
sheriff’s department personnel arrived on May 5, they were wearing tactical
vests with the word “Sheriff” on the front and back, and ballistic
helmets. Detective McCormack
pounded on the locked metal security screen covering the front door of the home
and announced “ ‘Sheriff’s office, probation search, demand
entry.’ ” He repeated the
knock-notice procedure two more times.
Approximately “15, 20 seconds” elapsed from the first knock until the
third knock.

After
the third knock-notice, another officer used a “pry tool” to open the screen in
“a couple seconds.” After the screen
door was opened, McCormack loudly “announced a couple more times ‘Sheriff’s
office, probation search, demand entry.’ ”
Sergeant Beard then began to hit the front door with a ram, “a metal
object about three feet long . . . used to force open doors.” While Beard was hitting the door, McCormack
heard voices from inside the house, but could not understand what they were
saying. Beard hit the door numerous
times before it split open, taking “five, 10 seconds.”

McCormack
and another officer entered the house first.
McCormack saw defendant “standing there,” with a Walther P22 handgun
“sitting a few inches away from his right hand, [and] the hammer was cocked.” He handcuffed defendant and “grabbed the gun
and handed it off to another detective.”
After entering the house, McCormack kicked a .22 shell. He looked at it and determined “it was just
the shell, there was no bullet attached.”
McCormack “asked for the gun and I smelled it, and . . . could smell an
odor of burnt powder.” Detectives found
a bullet hole in the wooden front door of the house.

McCormack
asked defendant if he shot at the detectives.
C.B. said “he shot at the door because he did not know what was going
on” and he thought someone was breaking in.

Rachel
B. was standing in “very close proximity to [C.B.],” and there were two other
minor children in the house. She said
the handgun was hers. Detectives
searched defendant’s bedroom and found a loaded Norinco Mak 90 assault weapon
under the mattress. They also found
handwritten notes “about wanting to shoot people.”

The
following day, May 6, the Contra Costa District Attorney filed a supplemental
petition alleging defendant, then 16 years of age, assaulted three police
officers with a firearm. (Pen. Code,
§ 245, subd. (d)(1).)href="#_ftn3"
name="_ftnref3" title="">[3] The petition included personal use of a
firearm enhancement allegations as to each of the assault counts (former
§ 12022.5, subd. (a)(1)) and also alleged one count of possession of an
assault weapon (former § 12280, subd. (b)) and one count of possession of
a firearm by a minor (former § 12101, subd. (a)).

After
the juvenile court denied a motion to suppress evidence obtained during the
probation search, defendant entered into a negotiated disposition. The prosecutor amended the supplemental
petition to add a count of assault with a firearm with a personal use
enhancement under former section 12022.5, subdivision (a)(1), and moved to
dismiss the remaining counts. Defendant
then entered a no contest plea to the amended allegations.

At
the disposition hearing, the court ordered defendant committed to the DJF, with
a maximum term of confinement of eight years.
The court imposed the midterm of seven years for the assault with a
firearm count, four months for his prior sustained petition for possession of
rock cocaine (Health & Saf. Code, § 11350) and eight months for his
prior sustained petition for unlawful possession of a firearm (former
§ 12101(a)(1)) and awarded credit for time served of 316 days.

Discussion

Motion to Suppress

In
reviewing a ruling on a motion to suppress, we “defer to the trial court’s
factual findings, express or implied, where supported by substantial
evidence. In determining whether, on the
facts so found, the search and seizure was reasonable under the Fourth
Amendment, we exercise our independent judgment.” (People
v. Glaser
(1995) 11 Cal.4th 354, 362.)

Search
Condition


“A
residence search conducted without a warrant is presumed unreasonable unless it
comes within an exception to the warrant requirement. [Citation.]
One such exception is the consent to search. [Citations.]
In California, probationers consent in advance, as a condition of their
probation, to warrantless searches and seizures in exchange for the opportunity
to avoid serving a state prison term.
[Citations.] Warrantless searches
of probationers are justified because they aid in deterring further offenses by
the probationer and in monitoring compliance with the terms of probation. [Citations.]
‘By allowing close supervision of probationers, probation search
conditions serve to promote rehabilitation and reduce recidivism while helping
to protect the community from potential harm by probationers. [Citation.]’ ” (People
v. Medina
(2007) 158 Cal.App.4th 1571, 1575-1576 (Medina), quoting People v.
Robles
(2000) 23 Cal.4th 789, 795.)

Defendant
asserts the probation search was invalid for lack of any “reasonable suspicion”
of criminal activity. However, there is
no “reasonable suspicion” requirement for a probation search. A “suspicionless search pursuant to a
probation search condition is not prohibited by the Fourth Amendment.” (Medina,
supra, 158 Cal.App.4th at
p. 1580.)href="#_ftn4" name="_ftnref4"
title="">[4] A “ ‘search condition of probation that
permits a search without a warrant also permits a search without “reasonable
cause.” ’ ” (In re Anthony S. (1992) 4 Cal.App.4th 1000, 1004 (>Anthony S.), quoting >People v. Bravo (1987) 43 Cal.3d 600,
611 (Bravo).) An “officer acting in reliance on a search
condition may act reasonably, even in the absence of any particularized
suspicion of criminal activity, and such a search does not violate the
suspect’s reasonable expectation of privacy.”href="#_ftn5" name="_ftnref5" title="">>[5] (In re
Jaime P
. (2006) 40 Cal.4th 128, 134.)
An officer must, however, have advance knowledge the individual is
subject to a probation search prior to conducting the search. (Id.
at p. 133.)

Defendant
does not dispute he was on probation and subject to a search condition on May
5. Nor does he dispute Detective
McCormack knew prior to the search that the terms of his probation included a
search condition. As we have discussed,
once McCormack was aware defendant was on probation and subject to search, the
officer was not required to have reasonable suspicion that he was engaged in
criminal activity.

Defendant’s
Residency


“[A]n
officer executing an arrest warrant or conducting a probation or parole search
may enter a dwelling if he or she has only a ‘reasonable belief,’ falling short
of probable cause[,] to believe[] the suspect lives there and is present at the
time.” (People
v. Downey
(2011) 198 Cal.App.4th 652, 662.)

Defendant
asserts Detective McCormack “did not have probable cause” to believe he lived
at the Madison Avenue residence and was present at the time of the search, and
urges us to follow the Ninth Circuit’s view that “reasonable belief” is the
same as “probable cause.” (See >United States v. Howard (9th Cir. 2006)
447 F.3d 1257, 1262; United States
v. Gorman
(9th Cir. 2002) 314 F.3d 1105, 1110-1111.) However, the “Ninth Circuit stands alone
among the federal circuits in . . . requiring probable cause” that a suspect
lives at the residence in question. (>People v. Downey, supra,
198 Cal.App.4th at p. 661.) Ninth
Circuit cases are not binding on California courts, and we decline to follow
the circuit’s novel interpretation. (See
Levy v. Skywalker Sound (2003) 108
Cal.App.4th 753, 763 & fn. 8.)
Detective McCormack needed only a “reasonable belief” defendant resided
and was present at the Madison Avenue residence.

Defendant
also asserts “it was not objectively reasonable” for Detective McCormack to
believe he lived and was present at the Madison Avenue residence. However, prior to the search, McCormack
conducted an investigation into defendant’s residence. He contacted defendant’s probation officer,
who told him defendant was on probation with a search condition and lived with
his mother, Rachel B., at the Madison Avenue address. The probation officer had seen him
“approximately a month prior.” McCormack
then drove by the residence, observed the vehicles parked in front, and ran
registration checks on both. Both were
registered to Rachel B., one at the Madison Avenue address. In addition, McCormack contacted a postal
inspector and learned there was “a change of address on file directing mail
from a previous address to . . . Madison Avenue in the name of Rachel
B[.],”effective January 29. The search
was conducted on a school day at 7:00 a.m., and Detective McCormack believed,
based on defendant’s age, that he would be present at that hour in the
morning. The results of his
investigation provided Detective McCormack with ample “reasonable belief”
defendant lived and would be present at the Madison Avenue address.

Defendant
contends the juvenile court erred in taking judicial notice of his address on
the May 6 supplemental petition.
Evidence Code section 452 provides judicial notice may be taken of
“[r]ecords of . . . any court of this state . . . .” (Evid. Code, § 452, subd. (d)(1).) Although “ ‘the existence of statements contained in . . . [a] court record can be
judicially noticed, their truth is
not subject to judicial notice.’ ”
(Big Valley Band of Pomo Indians
v. Superior Court
(2005) 133 Cal.App.4th 1185, 1192.) Thus, the court could properly take judicial
notice of the supplemental petition and the existence of the Madison Avenue
address on that petition, but not of the fact the Madison Avenue address >was defendant’s address. As previously discussed, however, there was
other evidence defendant resided at the Madison Avenue address, and that
evidence was sufficient to provide Officer McCormack with a “reasonable belief”
defendant resided there.

Scope
and Manner of Search


A
probation search must be conducted in a constitutionally reasonable manner. (>Anthony S. supra, 4 Cal.App.4th at p. 1004, citing Bravo, supra, 43 Cal.3d. at p. 608.) The search may be unreasonable “where the
search exceeds the scope of the consent [citation], is conducted in a[
constitutionally] unreasonable manner [citation], is undertaken for harassment
[citation] or is ‘. . . for arbitrary or capricious reasons.’ ” (Anthony
S.
, at p. 1004.) “Whether a
search is arbitrary, capricious, or harassing turns on its purpose.” (People
v. Smith
(2009) 172 Cal.App.4th 1354, 1362.) A probation search is arbitraryhref="#_ftn6" name="_ftnref6" title="">[6]
“when the officer’s motivation is unrelated to rehabilitative, reformative, or
legitimate law enforcement purposes, as when it is driven by personal animosity
toward the parolee.” (>Ibid., citing Anthony S., supra, 4
Cal.App.4th at p. 1004.)

Defendant
asserts the “scope and manner” of the probation search was oppressive,
arbitrary and constitutionally unreasonable.
He complains about the “early morning” hour of the search, that there
were “eleven armed officers dressed in riot gear,” and there was a short amount
of time between the “knock-notice” and forcible entry.

Detective
McCormack testified that “after 7:00 a.m. . . . is the normal time for search
warrants.”href="#_ftn7" name="_ftnref7" title="">[7] He also wanted to conduct the probation
search at a sufficiently early hour that it would be over before the school
directly behind the Madison Avenue house started. McCormack also believed, based on defendant’s
age, he would be present in the residence at that hour on a Wednesday
morning. Defendant has pointed to
nothing in the record and no legal authority suggesting the time of the
probation search rendered it constitutionally unreasonable.

Detective
McCormack further testified he knew prior to conducting the probation search
that defendant had been convicted of a firearms offense and was a suspect in a
shooting. Defendant has failed to cite a
single case holding the mere number of officers or their protective clothing
renders a probation search constitutionally unreasonable, and that certainly is
not the case given the facts and circumstances here.

Defendant
acknowledges a violation of the knock-notice rule does not require suppression
of the evidence found in the search,href="#_ftn8" name="_ftnref8" title="">>[8]> but asserts it is “part of the
reasonableness inquiry under the Fourth
Amendment
” under Wilson v. Arkansas
(1995) 514 U.S. 927, 929-930. The
“knock-notice rule applies to probation searches.” (People v. Murphy (2005) 37 Cal.4th 490, 496.) “[C]ourts have consistently held that initial
entries into a home by law enforcement officers to conduct a probation or
parole search . . . must comply with the knock-notice requirements.” (People
v. Mays
(1998) 67 Cal.App.4th 969, 973, fn. 4.) “[B]efore entering a house to make an arrest
or perform a search, officers must first identify themselves, explain their
purpose, and demand admittance.” (>People v. Murphy, supra, at
p. 495.) “[L]aw enforcement
officers must . . . provide residents an opportunity to open the door
. . . .” (Hudson, supra, 547 U.S.
at p. 589.) As Hudson explained, “[w]hen the knock-and-announce rule does apply,
it is not easy to determine precisely what officers must do. How many seconds’ wait are too few‌ Our ‘reasonable wait time’ standard
[citation] is necessarily vague.”href="#_ftn9"
name="_ftnref9" title="">[9] (Id.
at p. 590.)

Defendant
relies on People v. Urziceanu (2005)
132 Cal.App.4th 747, claiming the court in that case reversed the denial of a
motion to suppress on facts analogous to those here. In Urziceanu,
police arrived at the defendant’s house to conduct a probation search. The officer testified he knocked and
announced his purpose, then waited 30 seconds before breaking down the
door. (Id. at p. 788.) The defense
presented evidence there was only an eight to 10-second gap between the knock-notice
and breaking down the door. (>Ibid.)
“Based
on this factual uncertainty and the trial court’s failure to make the simple
factual findings as to what testimony it believed, we cannot uphold the trial
court’s conclusion of substantial compliance.” (Id.
at p. 792.)

Here,
in contrast, the juvenile court made express findings as to the sequence of
events and timing. Specifically, the
court found no conflict between Rachel B.’s testimony that she did not hear the
knock-notice and Detective McCormack’s testimony that he gave it. The court stated: “On the credibility issue, I don’t have to
find either that [Rachel B.] was truthful when she said she didn’t hear it or
not. I think that there’s a clear
explanation that does not require me to conclude she was lying, and that’s
simply to accept the statement that she gave the police at the time, which was
that she was sleeping and didn’t hear it.
If I credit that explanation, I certainly credit the testimony of Sergeant McCormack
with respect to the knock notice.”

Detective
McCormack testified he pounded on the locked metal security screen covering the
front door of the home and announced “ ‘Sheriff’s office, probation
search, demand entry’ ” three times.
Approximately “15, 20 seconds” elapsed from the first knock until the
third knock. After the third
knock-notice, another officer used a “pry tool” to open the screen in “a couple
seconds.” After the screen door was
opened, McCormack loudly “announced a couple more times ‘Sheriff’s office,
probation search, demand entry.’ ”
Sergeant Beard of the sheriff’s department then began to hit the front
door with a ram, while McCormack heard voices from inside the house, but could
not understand what they were saying. On
these facts, there was no violation of the knock-notice rule.

In
sum, we conclude the juvenile court properly denied defendant’s motion to
suppress.

>Commitment
to DJF


Defendant
maintains the juvenile court abused its discretion in committing him to the
DJF. He claims the court “focused solely
on the seriousness and gravity of the instant offense thereby failing to
conduct an individualized disposition focused on [C.B.’s] rehabilitative
needs,” and failed to consider whether he had special educational needs. He also urges the “ongoing . . . challenges
the state [DJF] system has with adequacy of care and the safety of its
incarcerated youth” demonstrate “a [DJF] commitment will not successfully
rehabilitate [him].”href="#_ftn10"
name="_ftnref10" title="">[10]

When determining
the appropriate disposition in a delinquency
proceeding
, the juvenile courts are required to consider ‘(1) the age of
the minor, (2) the circumstances and gravity of the offense committed by the
minor, and (3) the minor’s previous delinquent history.’ (Welf. & Inst. Code, § 725.5; see also >In re Gary B. (1998) 61 Cal.App.4th
844, 848-849 . . . .) Additionally,
‘there must be evidence in the record demonstrating both a probable benefit to
the minor by a [DJF] commitment and the inappropriateness or ineffectiveness of
less restrictive alternatives.’
[Citation.] ‘A juvenile court’s
commitment order may be reversed on appeal only upon a showing the court abused
its discretion. [Citation.]’ [Citation.]”
(In re Jonathan T. (2008)
166 Cal.App.4th 474, 484-485.)

“Although
the [DJF] is normally a placement of last resort, there is no absolute rule
that a [DJF] commitment cannot be ordered unless less restrictive placements
have been attempted. [Citations.] A [DJF] commitment is not an abuse of
discretion where the evidence demonstrates a probable benefit to the minor from
the commitment and less restrictive alternatives would be ineffective or
inappropriate.” (In re M.S. (2009) 174 Cal.App.4th 1241, 1250.)

At
the contested dispositional hearing, the juvenile court considered the
probation report and heard the testimony of defendant’s probation officer, as
well as considered statements by defendant and two of his aunts. The court also considered defendant’s school
transcript, juvenile hall adjustment record, and letters to the court from both
defendant and one of his aunts.

The
probation report indicated defendant had a long history of contacts with the
juvenile justice system beginning in 2003.
At that time, he was cited for petty theft, which was “closed at intake by
Probation.” In October 2004, he was
arrested after being involved in a “physical altercation” at a middle
school. That matter was also “closed
[at] intake by Probation” on June 2, 2005.
On June 8, 2005, defendant punched a victim in the face, and was cited
for battery on school grounds. On July
29, 2005 he was arrested for petty theft and battery after he stole items from
a grocery store and punched the assistant manager in his right ear. The petty theft allegation was sustained and
the battery charge was dismissed, he was continued as a ward of the court and
placed on a home supervision program with other probation conditions.

In
December 2006, defendant was arrested at a middle school for selling
marijuana. The matter was closed without
charges being filed. About a week later,
a notice of probation violation was filed alleging defendant failed to complete
nine work details. The probation
violation was sustained, and he was ordered to serve 30 days in the home
supervision program.

In
November 2007, defendant again violated the terms of his probation by being
suspended from school. He was ordered
detained in Juvenile Hall for three days, followed by 60 days in the home
supervision program. In December 2007, a
“Change of Circumstances” petition under Welfare and Institutions Code
section 778 was filed after defendant’s mother bit him, pulled a knife on
him and hit him with a trophy. The court
ordered that he live with his grandmother in href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Oakland.


In
April 2008, defendant again violated the terms of his probation by testing
positive for marijuana. In May 2008, he
tested positive for opiates and the probation violation was sustained. He was again placed on the home supervision
program, this time for 30 days.

Defendant
was arrested in March 2009 and again adjudged a ward of the court following his
admission of possession of a concealable firearm by a minor. (Former Pen. Code, § 12101, subd. (a)(4).) He made the following statement to the
probation officer: “My cousin got into a
fight with somebody the day before . . . [who] threatened to kill him. I felt like it was my job to protect him so I
went out and got a gun from an older dude in the neighborhood. We [were] standing on the corner and they
drove past us and started shooting at us. . . .
I started shooting back. . . They
shot my cousin in the leg. [¶] I
had to sell the drugs to pay the gun off because I couldn’t get the gun for
free. . . .” Defendant was again placed
on probation.

Defendant’s
probation officer testified at the contested disposition hearing. She explained that, despite his record, he
had never had a “ranch commitment” or “been to placement.” She testified defendant was found “not
suitable” for placement options other than DJF due to the nature and
seriousness of his offense, including the use of a gun. She contacted the Youth Offender Treatment
Program and the county Boys Ranch program, but neither would accept him. She also testified that while in juvenile
hall awaiting disposition, he “attack[ed] another resident with a closed fist.”


A
May 7, 2009, dispositional report from Alameda County indicated defendant had
an IEPhref="#_ftn11" name="_ftnref11" title="">[11]
at his high school. The current
probation report indicated he “has never been a special education
student.” His probation officer
testified she contacted that school, and was told their records did not
indicate he had an IEP. His most recent
grade point average at the high school at juvenile hall was 2.57, and he passed
the high school exit exam (CAHSEE).

The
juvenile court stated: “I think it is
unfortunate that we did not make more intensive interventions at an earlier
time in C[.B.]’s life. I suspect that
might have been good if the first time he used a gun he spent some time at the
Boys Ranch. Perhaps that would have
prevented this occurrence. Who
knows. [¶] . . . [¶] I find
that he is a significant danger to the community. I find that he is a significant danger to
himself. The Boys Ranch is an open
program, would be utterly inappropriate.
YOTP [is] closer, but I don’t think it has a sufficient period of time
factually available to work with him at the level that he needs to be worked
at. [¶] So I will find that there
are no local options appropriate to the rehabilitation of the minor and
protection of the community and I will order him committed to the Department of
Juvenile Justice.” The court further
found defendant “does not have exceptional needs [and] . . . can benefit from
the educational discipline and counseling at the Department . . . of Juvenile
Justice.”

The
court considered defendant’s rehabilitative needs given his extensive history
of violent behavior. It also considered
whether he had special educational needs, and its finding that he did not is
amply supported in the record. The
record demonstrates a probable benefit to defendant from the DJF commitment,
and an absence of any other less restrictive alternatives. (See In
re M.S
., supra, 174 Cal.App.4th
at p. 1250.) On these facts, the juvenile
court did not abuse its discretion in committing him to the DJF.

>DISPOSITION

The dispositional order is affirmed.







_________________________

Banke,
J.





We concur:





_________________________

Margulies,
Acting P. J.





_________________________

Dondero, J.





id=ftn1>

href="#_ftnref1" name="_ftn1" title="">>[1] The factual background is based on testimony
at the hearing on the motion to suppress and the probation report.

id=ftn2>

href="#_ftnref2" name="_ftn2" title="">>[2] Unless otherwise indicated, all referenced
dates are in 2010.

id=ftn3>

href="#_ftnref3" name="_ftn3" title="">>[3] All further statutory references are to the
Penal Code, unless otherwise indicated.

id=ftn4>

href="#_ftnref4" name="_ftn4" title="">[4] While the United States Supreme Court has
concluded “the Fourth Amendment does not prohibit a police officer from
conducting a suspicionless search of a parolee” (Samson v. California (2006) 547 U.S. 843, 857), it has not yet
addressed the issue of whether a suspicionless probation search violates the
Fourth Amendment. (Medina, supra, 158 Cal.App.4th at p. 1580.) In the absence of United States Supreme Court
authority, we are bound to follow California law under which “a suspicionless
search pursuant to a probation search condition is not prohibited by the Fourth
Amendment.” (Ibid.)

id=ftn5>

href="#_ftnref5" name="_ftn5" title="">[5]> Indeed, it appears appellant, and the Attorney
General in response, have conflated the question of whether the probation
search was conducted in a constitutionally reasonable manner, with the issue of
whether a probation search requires reasonable suspicion of criminal activity. >

id=ftn6>

href="#_ftnref6" name="_ftn6" title="">[6]> “[W]e
treat ‘arbitrary’ and ‘capricious’ as synonymous.” (Anthony
S
., supra, 4 Cal.App.4th at
p. 1004, fn. 3.)

id=ftn7>

href="#_ftnref7" name="_ftn7" title="">[7] McCormack apparently was referring to Penal
Code section 1533, under which warrants are presumptively served between 7:00
a.m. and 10:00 p.m., unless good cause is shown for service outside that
temporal window. (Pen. Code,
§ 1533.)

id=ftn8>

href="#_ftnref8" name="_ftn8" title="">[8]> >Hudson v. Michigan (2006) 547 U.S. 586, 602 (Hudson).

id=ftn9>

href="#_ftnref9" name="_ftn9" title="">[9] One court has observed that “[t]wenty seconds
is not a flash of time allowing for no response at all.” (People v. Elder (1976) 63 Cal.App.3d 731, 739, overruled on another
ground in People v. Chapman (1984) 36
Cal.3d 98, 109-113.)

id=ftn10>

href="#_ftnref10" name="_ftn10" title="">[10] Appellant filed a request for judicial notice
of certain documents relating to this contention, including a newspaper
article. Only one meets the statutory
requirements for permissive judicial notice, an August 4, 2011, endorsed filed
copy of an order of the Alameda County Superior Court granting a motion to
enforce the DJF’s duties under a 2004 consent decree. (Evid. Code, § 452, subds. (a),
(d).) We deny appellant’s request for
judicial notice as to all but Exhibit 4. That order demonstrates the
“challenges” at the DJF are being addressed by the judicial system.

id=ftn11>

href="#_ftnref11" name="_ftn11" title="">[11]> An
“IEP” is an individualized education plan, “ ‘a comprehensive statement of
a disabled child’s educational needs and the specifically designed instruction
and related services that will meet those needs. [Citation.]
. . .’ ‘[A]n IEP is reviewed at
least annually and revised as necessary.’ ”
(In re R.W. (2009) 172
Cal.App.4th 1268, 1270, quoting In re
Carl R
. (2005) 128 Cal.App.4th 1051, 1067.)








Description
Defendant and appellant C.B. pleaded no contest to committing assault with a firearm and an enhancement of personal use of a firearm. He appeals from the dispositional order, claiming the juvenile court (a) erred in denying his motion to suppress evidence seized during a probation search of his residence and (b) abused its discretion by committing him to the Division of Juvenile Facilities (DJF). We conclude the juvenile court neither erred nor abused its discretion, and affirm.
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