In re O.V.

Filed 2/25/09 In re O.V. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

I. INTRODUCTION

After a contested jurisdictional hearing, the juvenile court found that appellant had committed an act of vandalism and sustained the Welfare and Institutions Code section 602 (section 602) petition filed against him. Appellant was adjudged a ward of the court and placed on probation in his parents custody. He appeals from both the jurisdictional and dispositional orders claiming (1) lack of substantial evidence, (2) a Miranda violation by the police, and (3) that an unconstitutional search and seizure probation condition was imposed by the juvenile court. We reject these contentions and affirm the juvenile courts orders.

II. FACTUAL AND PROCEDURAL BACKGROUND

During the late afternoon of December 5, 2007, off-duty San Francisco deputy sheriff Marvin Gonzalez was driving near the intersection of Willow Road and Church Lane in San Pablo, Contra Costa County, when he saw several youths standing near the street. He saw one of the youths, wearing a red T-shirt, tagging a light pole, apparently with a marker. Gonzalez conceded that he did not actually see a marker in the youths hand, but he did see the resulting writing on the pole. After seeing this and driving by, Gonzalez put his vehicle in reverse to contact the youths, but they began walking away. Gonzalez exited his vehicle, and looked at the tagged sign which bore the letters E-S-S. He then showed the three youths his badge and asked them to stop. They declined to do so, whereupon Gonzalez called the San Pablo police department and requested that they send an officer to the scene. Gonzalez subsequently followed the youths until the San Pablo police arrived on the scene.

San Pablo Police Officer William Boehm received the call from his dispatcher concerning this incident at about 4:15 p.m. that afternoon. He was advised by the dispatcher that the three suspects were Hispanic male juveniles, one of whom was wearing a red T-shirt. Boehm arrived on the scene shortly thereafter and contacted appellant, his brother, and a third youth who matched his dispatchers description. Appellant was, he noted, the one wearing the red T-shirt.

Boehm detained the youths briefly, and they were, he testified, fairly cooperative. Boehm requested that they consent to a pat search of their outer clothing, to which all three agreed. That search revealed a red bandana in appellants pocket; the bandana contained a similar moniker as that found on the pole. Both monikers, as well as appellants red T-shirt, were consistent with Norteno gang membership or association.

Boehm asked appellants brother about who was responsible for the tagging. Appellant, who was standing close by and could hear the question, volunteered to Boehm that he was the one who had tagged it. Boehm did not find a marker in appellants possession nor did he find any indication, on appellants hands, that he had recently handled one. Boehm and another officer who had joined him searched the area around the tagged pole but found no marker there, either.

On February 14, 2008, a petition under section 602 was filed alleging that appellant had committed vandalism under Penal Code section 594, subdivision (b)(2). On May 8, 2008, after a contested jurisdictional hearing, the court sustained the petition. On June 19, as noted above, the court adjudged appellant a ward of the court and placed him on probation in his parents custody, subject to various conditions of probation, including a search condition.

Appellant filed a timely notice of appeal a few days later.

III. DISCUSSION

As noted above, appellants first contention is that the evidence before the juvenile court was insufficient to sustain its findingat the conclusion of the jurisdictional hearingthat appellant had committed the tagging of the pole. We find this contention to be without merit. There were two significant pieces of evidence warranting the juvenile courts finding that appellant committed the tagging of the pole, the vandalism at issue here.

The first was the testimony of Gonzalez that he has seen one of the three youthsone wearing a red T-shirtwriting on the pole with, apparently, a marker, and subsequently found that the pole had been marked with the moniker E-S-S. On direct examination, Gonzalez testified that he saw a black marker in the youths hand, but on cross-examination admitted that he could not actually see the marker, but did see the person in the red T-shirt writing on the pole. Shortly thereafter, again per the testimony in the juvenile court, Officer Boehm found appellant, who was both wearing a red T-shirt and in possession of a red bandana with the same gang-associated moniker as that written on the pole.

The second significant piece of evidence is that, while Officer Boehm was questioning his brother, appellant volunteered that he was the person who had defaced the pole. Under the definitions of substantial evidence provided by our Supreme Court, either of these pieces of evidence, and certainly the combination of them, constitutes substantial evidence supporting the juvenile courts finding at the conclusion of the jurisdictional hearing. (See, e.g., People v. Carpenter (1997) 15 Cal.4th 312, 387, superseded by statute on another ground as noted in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106; People v. Memro (1995) 11 Cal.4th 786, 861; People v. Berryman (1993) 6 Cal.4th 1048, 1083, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

But, appellant argues in his second contention, appellants volunteered confession to the charged vandalism to Officer Boehm should not have been admitted into evidence because the record shows that no Miranda warning was issued by that officer to appellant. This contention also fails, and again for two separate and distinct reasons: (1) appellant was not in custody nor (2) was he being interrogated when he made his admission to Officer Boehm.

Regarding the first factor, under both federal and California precedents a Miranda warning is required only after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. (People v. Bellomo (1992) 10 Cal.App.4th 195, 198-199 (Bellomo), and cases cited therein; see also to the same effect People v. Stansbury (1995) 9 Cal.4th 824, 830-835 (Stansbury), and cases cited therein.)

As the Bellomo court explained: The existence of custody is determined by an objective test. . . . [] In [People v.] Lopez [(1985) 163 Cal.App.3d. 602], this court explained: Case law has identified a number of objective indicia of custody for Miranda purposes, such as (1) whether the suspect has been formally arrested, (2) absent formal arrest, the length of the detention, (3) the location, (4) the ratio of officers to suspects, (5) the demeanor of the officer, including the nature of the questioning. [fn. 4] [Citation.] Footnote 4 elaborated: Accusatory questioning is more likely to communicate to a reasonable person in the position of the suspect, that he is not free to leave. [Citation.] General investigatory questioning may convey a different message. [Citation.] [Citation.] (Bellomo, supra, 10 Cal.App.4th at pp. 198-199, fns. omitted.)^[1]

Our Supreme Courts decision in Clair, supra (see fn. 1, ante), is also highly relevant to the second reason there was no Miranda violation here: the admission of appellant was clearly not the result of any interrogation of him. As the Clair court noted, the Miranda opinion itself stated that: General on-the-scene questioning as to facts surrounding a crime . . . is not affected by our holding. [(Miranda v. Arizona (1966)] 384 U.S. [436,] 477.) (Clair, supra, 2 Cal.4th at p. 679.) The Clair court went on to explain that the concept of interrogation does not extend to inquireslike those herethat are essentially limited to the purpose of identifying a person found under suspicious circumstances . . . . [Citation.] (Id.at pp. 679-680.)

This principle is particularly applicable here because, as the record before the juvenile court makes clear, Officer Boehm was questioning appellants brother, I.V., not appellant, when appellant made his candid admission to the officer. In People v. Haley (2004) 34 Cal.4th 283, 300 (Haley), our Supreme Court relied on the holding in Rhode Island v. Innis (1980) 446 U.S. 291, 300-302, in explaining: In Innis, the high court defined the term interrogation, stating that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term interrogation under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect. . . . But, since the police surely cannot be held accountable for the unforeseeable results of their words or actions, the definition of interrogation can extend only to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. [Citation.] (Haley, supra, 34 Cal.4th at p. 300.)

In summary, appellants Miranda argument fails both because appellant was neither in custody nor being interrogated.

Appellants third and final argument, that the search and seizure condition imposed by the juvenile court was unconstitutional also fails for two reasons. First of all, the argument was not raised below and was therefore waived. (See, e.g., People v. Welch (1993) 5 Cal.4th 228, 233-237; In re Josue S. (1999) 72 Cal.App.4th 168, 170-173; People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152.) Second, bearing mind appellants possible gang connection (see CT 14-15, 20) and the ease with which tagging material may be secreted upon ones person, a search condition such as that imposed here was perfectly appropriate. (See, e.g., People v. Balestra (1999) 76 Cal.App.4th 57, 65-68; In re Binh L. (1992) 5 Cal.App.4th 194, 201-205; In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033; see also Pen. Code,  1203.1, subd. (j) & Welfare & Inst. Code,  730, subd. (b) [the statutes generally authorizing appropriate probation conditions].)

IV. DISPOSITION

The orders appealed from are affirmed.

_________________________

Haerle, J.

We concur:

_________________________

Kline, P.J.

_________________________

Richman, J.

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^[1]Also pertinent regarding what, under the requisite objective analysis, constitutes custody are our Supreme Courts decisions in Stansbury, supra, 9 Cal.4th at pp. 830-834 and People v. Clair (1992) 2 Cal.4th 629, 679 (Clair). These cases, and others cited above, often rely upon several United States Supreme Court decisions interpreting and applying Miranda regarding what constitutes custody. (See, e.g., Berkemer v. McCarty (1984) 468 U.S. 420, 439-442 and California v. Beheler (1983) 463 U.S. 1121, 1124-1125.)

Although many of the authorities just cited on this issueand also regarding the other contentions made by appellantare relied upon by respondent in its brief, we are disappointed that almost none of themare dealt with or even cited in appellants reply brief to us.