In re Sergio C.
Filed 6/12/13 In re Sergio C. CA2/8
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re SERGIO C., a Person
Coming Under the Juvenile Court Law.
B239578
THE PEOPLE,
Plaintiff and Respondent,
v.
SERGIO C.,
Defendant and Appellant.
(Los Angeles
County
Super. Ct.
No. JJ18730)
APPEAL from
a judgment of the Superior Court
of
County. Steve Klaif, Referee. Affirmed.
Laini
Millar Melnick, under appointment by the Court of Appeal, for Minor and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Roberta L. Davis and Analee J.
Brodie, Deputy Attorneys General, for Plaintiff and Respondent.
_____________________________
Sergio C.
appeals from a judgment declaring him a ward of the juvenile court pursuant to
Welfare and Institutions Code section 602.
We affirm the judgment.
FACTS
This appeal
stems from two Welfare and Institutions Code section 602 petitions – one for
battery and other offenses involving an attempt to prevent an officer from
issuing a truancy violation and the other involving
generally undisputed.
On Friday, December 9, 2011, Sergio was
observed walking off school grounds. He
ignored the school police officer’s instruction to return to school. Sergio was absent the following Monday and
Tuesday. On Wednesday, December 14, 2011, school police
officer Clesha Nelson conducted a truant investigation and asked Sergio to go
to the counselor’s office. When she
advised him she was writing him a ticket, Sergio became angry though he
admitted he was off campus and ignored instructions to return. He accused Nelson of failing to write the
ticket earlier that day when he was with his mother because Nelson was afraid
of his mother. He then began a
profanity-laced tirade, yelling, “Fuck this†and “You cannot fucking give me a
ticket. If you give me this ticket, I’m
not going to do anything but tear this ticket up and do what I usually
do.â€
He became
angrier when Nelson advised him that he would continue receiving tickets if he
left campus. He clenched his fists and
pounded his fist on his thigh, breathing heavily. He began yelling, “You’re lucky you have a
gun and a badge or I will fuck you up or I will hit you.†At one point, the principal walked in to ask
Sergio to lower his voice and to be respectful of Nelson. Although he continued to complain, Sergio
calmed down.
He soon
grew angry again and attempted to leave.
He said “fuck this†and got up from his chair. Nelson placed her hand on his chest/stomach
area and told him to sit down and wait until she finished the citation. He slapped her hand away and said, “Don’t
fuckin[g] touch me bitch.†When he
attempted to get up again, Nelson put her hand in front of him and Sergio
yelled, “This is Florencia 13. I’ll fuck
you up. I’ll fuck you up. This is Florencia.†He became combative. Nelson held him up against the wall with her
forearm. He screamed, “Get off me. Get off me.â€
He also began elbowing her in the chest.
During their struggle, a chair was knocked over as well as several items
on the desk. Nelson turned him to face
the wall, but he continued to struggle.
She then grabbed him and pulled him into the hallway in an attempt to
gain control. She lost her footing and
they both fell to the ground.
Ultimately, Sergio put his arm behind his back and Nelson handcuffed
him. Nelson was not able to finish
writing out the truancy citation to give to Sergio because he would not calm
down. When he complained of back pain,
Nelson called an ambulance for him. A
petition was filed on December 15,
2011, pursuant to Welfare and Institutions Code section 602,
alleging one count each of resisting an executive officer (Pen. Code, § 69),
threatening a school or public officer (§ 71) and committing battery on an
officer (§ 243, subd. (b)).
The second
petition, filed on December 23, 2011,
alleged one count of petty theft. On October 21, 2011, Gilberto Luna, a
computer teacher at Sergio’s high school, left his mobile phone on top of his
desk during the class. Luna moved around
the classroom, assisting students at their desks. Sergio was present that day and sat in the
second row. Luna discovered his mobile
phone was missing at the end of class and a student told him that Sergio had
been “hovering†near his desk. Luna
reported the theft to school police officer Hector Trujillo.
Trujillo
questioned Sergio one week later on October
27, 2011. Trujillo
read Sergio his Miranda
rights and Sergio said he understood them.
Sergio initially denied taking Luna’s mobile phone. He then admitted he took the phone after Trujillo
used a ruse and told him several people saw him take the phone. Sergio said that he gave the phone to a
friend but refused to name the friend.
Both
petitions were adjudicated on February
15-16, 2012. The juvenile
court sustained the petitions as to all counts.
Sergio was declared a ward of the juvenile court and placed home on
probation. Sergio filed a
DISCUSSION
Sergio
makes various legal and evidentiary challenges to the judgment. First, he contends that the allegations
contained in the December 15, 2011
petition cannot be sustained because he was unlawfully detained when Nelson
sought to give him a citation for a truancy violation. Second, there was insufficient evidence to prove
he intended to prevent Nelson from performing her duties. Third, he argues that he did not voluntarily
and knowingly waive his Fifth Amendment
rights. Finally, he contends one
probation condition imposed by the trial court is unconstitutionally vague and
overbroad. We find none of these
arguments persuasive.
I. Unlawful
Detention
Sergio
contends the petition relating to the truancy citation cannot be sustained
because he was unlawfully detained at the time of the alleged offenses. Each of the three counts in the December 15, 2011 petition against
Sergio was premised on the officer being engaged in the performance of his or
her duties at the time of the prohibited conduct. (§§ 69, 71, 243, subd. (b).) According to Sergio, Nelson was not engaged
in the performance of her duties when she detained him in the school
counselor’s office as part of a truancy investigation. Sergio contends Nelson had no authority to
detain him for truancy on Wednesday because he was not truant then. Nelson’s only authority, according to Sergio,
lay in giving him a citation for truancy at the time he was actually truant,
not days afterwards when he was in school.
In short, her conduct at the time of the detention was
have been attempting to deter her from her lawful
duties. We disagree.
The
long-standing rule in California
and other jurisdictions is that a defendant cannot be convicted of an offense
against a peace officer engaged in the performance of his or her duties unless
the officer was acting lawfully at the time.
(People v. Gonzalez (1990) 51
Cal.3d 1179, 1217; In re Manuel G. (1997)
16 Cal.4th 805, 818 [applying rule to juvenile criminal matter].) “The rule flows from the premise that because
an officer has no duty to take illegal action, he or she is not engaged in
‘duties,’ for purposes of an offense defined in such terms, if the officer’s
conduct is unlawful. [Citations.]†(Gonzalez,
at p. 1217.)
We evaluate
whether Nelson’s conduct was lawful under the guidance provided by
which held, “the broad authority of school administrators over student
behavior, school safety, and the learning environment requires that school
officials have the power to stop a minor student in order to ask questions or
conduct an investigation even in the absence of reasonable suspicion, so long
as such authority is not exercised in an arbitrary, capricious, or harassing
manner.†(Id. at p. 559.) There, a
campus security officer observed a student acting nervously in a restricted
area of campus. The officer pulled the
student out of his class and detained him.
During questioning, the student consented to a patdown search and a
knife with a locking blade was found in his pocket. At trial, the court denied a motion to
suppress. (Id. at p. 560.) The defense
argued on appeal that the detention was unlawful because the officer lacked
reasonable suspicion of criminal activity or violation of a school rule. Thus, it was an unreasonable search and
seizure under the Fourth Amendment. (
Holding
that “detentions of minor students on school grounds do not offend the
Constitution, so long as they are not arbitrary, capricious, or for the
purposes of harassment[,]†the California Supreme Court reasoned that “liberty
is scarcely infringed if a school security guard leads the student into the
hall to ask questions about a potential rule violation.†(In re
Randy G., at pp. 566-567.)
If a
detention is lawful under the circumstances described in In re Randy G., we fail to see how it is not lawful in this
instance. Sergio does not contend he had
permission to leave campus the week before his encounter with Nelson. In fact, he acknowledged that he ignored the
officers’ request to come back to school.
Nor does he dispute that he has a prior history of truancy. Indeed, he indicated that he intended to
continue to be truant when he told Nelson, “I’m not going to do anything but
tear this ticket up and do what I usually do.â€
Nelson’s detention of Sergio to conduct a truancy investigation was not
arbitrary, capricious or harassing. We
are also not persuaded by Sergio’s argument that a school police officer is
subject to a different standard than any other school official. The Supreme Court specifically “decline[d]
the invitation to distinguish the power of school security officers over
students from that of other school personnel[.]†(In re
Randy, at p. 568.)
II. Intent
Sergio next
challenges the juvenile court’s true finding that he resisted an executive
officer as described under section 69
and that he threatened a public officer under section 71.
evidence of the specific intent to interfere with the performance of the
officer’s duties. (People v. Hopkins (1983) 149 Cal.App.3d 36, 43;
1083, 1154.) Sergio argues that the
petition as to these two counts cannot be sustained because there is no
evidence that he had the specific intent to prevent Nelson from issuing a
truancy citation. Instead, Sergio told
Nelson he planned to ignore the ticket and only made threats after she
prevented him from leaving.
We find
Sergio’s arguments unpersuasive. We
review the whole record in the light most favorable to the judgment to
determine whether it discloses substantial evidence – that is, evidence that is
reasonable, credible and of solid value – from which a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. (In re
Sylvester C. (2006) 137 Cal.App.4th 601, 605.)
Substantial
evidence supports a finding that he had the requisite intent. Sergio began his angry tirade immediately
after Nelson told him she was writing him a ticket for truancy. He threatened to “fuck [her] up,†and
indicated he was affiliated with a street gang, Florencia 13. He yelled, “You’re lucky you have a gun and a
badge or I will fuck you up or I will hit you.â€
He also exhibited threatening behavior, clenching his fists and pounding
his fist against his thigh, and became combative.
Contrary to
Sergio’s analysis, it is irrelevant when he made the threats or when he began
to struggle with Nelson. All of his
actions indicated that he was upset about the citation and did not want it, including
his attempt to leave. Indeed, Nelson
prevented him from leaving only to finish writing up the citation to give to
him. Sergio’s threats were made while
Nelson was writing the citation.
Ultimately, he was successful; Nelson was unable to give him the
citation. Given these facts, it is
reasonable to infer Sergio’s threats and actions were intended to deter or
prevent Nelson from performing her duties relating to the issuance of the
truancy citation.
III.
At trial, Trujillo testified
that he read Sergio his Miranda rights
from a form created by the Los Angeles Police Department. Although he appeared nervous, Sergio
indicated he understood those rights four separate times. Sergio then began to answer questions from
Trujillo regarding the missing mobile phone, including confessing that he took
it. At trial, defense counsel objected
to the admission of the confession on the ground that the totality of
circumstances – Sergio appeared nervous, he was 15 years old at the time, he
was never asked if he wanted his parents with him for the interview, he was
never asked if he knew what an attorney was, he was never asked if he wanted to
discuss the case – indicated there was not a voluntary, willful waiver. The trial court disagreed and the confession
was admitted into evidence.
On appeal,
Sergio contends for the first time that the waiver was not knowing or voluntary
due to his learning disabilities. The probation report issued prior to trial
indicated that Sergio was a special education student with a specific learning
disability involving “auditory processing and attention skill deficit†who was
placed in a smaller class with a special education teacher and who met with a
special resource teacher once a week.
We believe
Sergio has forfeited this claim. (
405, 424; People v. Rundle (2008) 43
Cal.4th 76, 116, 121 [forfeiture doctrine applies to objections based on
other grounds in People v. Doolin
(2009) 45 Cal.4th 390, 421, fn. 22; In re
Sheena K. (2007) 40 Cal.4th 875, 889 [forfeiture applies in juvenile
delinquency cases].) Although he
objected to the admission of the confession, he failed to raise the issue of
his learning disability. The prosecution
therefore had no opportunity to fully develop the factual record and allow the
trial court to make a ruling on it.
One of the
basic justifications for the forfeiture doctrine – to provide the court with
the opportunity to make findings based on a fully developed factual record (
742, 754) – and the difficulty in reviewing such issues for the first time on
appeal, are highlighted here. To
determine the merits of Sergio’s claim, we must consider whether, under the
totality of the circumstances, his disability prevented a knowing and voluntary
waiver. However, there is no information
in the record regarding the severity of Sergio’s disability or even what it
means to have “auditory processing and attention skill deficit.â€
in this regard independently but “ ‘evaluate the trial court’s factual
findings regarding the circumstances surrounding the defendant’s statements and
waivers, and “ ‘accept the trial court’s resolution of disputed facts and
inferences, and its evaluations of credibility, if supported by substantial
evidence.’ †’
[Citation.]†(
751.) Because Sergio did not raise the
issue in the trial court, there is little factual record from which to make
this determination.
Inexplicably,
the Attorney General did not raise the issue of forfeiture. As a result, we will assume that Sergio’s
claims were preserved. We nevertheless
conclude they lack merit. We consider
“the totality of the circumstances surrounding the interrogation, to ascertain
whether the accused in fact knowingly and voluntarily decided to forgo his
rights to remain silent and to have the assistance of counsel.†(Fare
v. Michael C. (1979) 442 U.S. 707, 724-725.) Because defendant is a minor, the required
inquiry “includes evaluation of the juvenile’s age, experience, education,
background, and intelligence, and into whether he has the capacity to
understand the warnings given him, the nature of his
consequences of waiving those rights.†(
demonstrating that the challenged waiver is valid by a preponderance of the
evidence. (People v. Dykes, supra, 46 Cal.4th at p. 751; People v. Nelson (2012) 53 Cal.4th 367, 375.) “A suspect’s expressed willingness to answer
questions after acknowledging an understanding of his or her
sufficient to constitute an implied waiver of such rights.†(People
v. Sauceda-Contreras (2012) 55 Cal.4th 203, 218-219.)
Here,
Sergio indicated four times that he understood his Fifth Amendment rights. It
was apparent that he knew that he could remain silent when he wished. For example, he refused to disclose to whom
he gave the mobile phone, despite being asked twice to do so. Although he participated in special education
classes, he followed a general curriculum.
Further, the probation report also assessed Sergio as follows: “The minor’s behavior at home is good. He follows the rules, takes out the trash and
cleans the livingroom. He is very
friendly, he smiles and talks a lot. He
is a good kid, very energetic and very
smart but he just needs to apply himself.â€
(Italics added.) The totality of
the circumstances supports the trial court’s conclusion that Sergio knowingly
and voluntarily waived his Fifth Amendment rights under Miranda.
Sergio’s
reliance on In re Shawn D. (1993) 20
Cal.App.4th 200 is misplaced. In
detective’s repeated suggestions to the unsophisticated and naïve 16-year old
defendant that he would be treated more leniently if he confessed rendered the
confession inadmissible. (
such promises of leniency were ever made to Sergio, much less multiple
times. Instead, Trujillo stated that “it
wouldn’t look good for him†in court since there were witnesses who saw him
take the phone. This isolated comment
conveys no suggestion that Sergio would benefit from confessing. Moreover, the Shawn D. court held that the detective’s use of a ruse – that he
already had enough evidence to convict defendant – was not enough to
demonstrate the defendant’s will was overborne.
(Id. at p. 213.)
IV. Probation
Condition
The
juvenile court conditioned Sergio’s probation on, among other things, Sergio
“not be[ing] within one block of any school ground unless enrolled, attending
classes, on approved school business, or with school official, parent or
guardian.†Sergio contends this
condition is unconstitutionally vague and overbroad because it does not include
any requirement that he know that he is within the prohibited radius. With over 1,000 schools in over 720 square
miles in Los Angeles, Sergio argues he could easily violate the condition
without knowing he was doing so.
Accordingly, Sergio requests we either strike the condition for being
impossible to comply with or modify it to include a scienter requirement. We decline to do either.
As noted by
the court in People v. Barajas (2011)
198 Cal.App.4th 748, 761-762, footnote 10, “the locations of most public
schools are well marked as required by statutes with speed limit signs (Veh.
Code, § 22352, subd. (a)(2)(B)), painted crosswalks labeled “SCHOOL XING†(Veh.
Code, § 21368), federal and state flags (Gov. Code, § 431, subd. (d)), and
notices of school hours (Ed. Code, § 32211, subd. (e)), as well as their often
distinctive combinations of buildings, playgrounds, and parking lots.†It is unlikely that Sergio will unknowingly
violate this probation condition if he is within one block of a school.
“A
probation condition ‘must be sufficiently precise for the probationer to know
what is required of him, and for the court to determine whether the condition
has been violated,’ if it is to withstand a challenge on the ground of
vagueness. [Citation.] A probation condition that imposes
limitations on a person’s constitutional rights must closely tailor those
limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.
[Citation.]†(
p. 890.) Given these guidelines, we
conclude the challenged probation condition is not unconstitutionally vague or
overbroad.
DISPOSITION
The
judgment is affirmed.
BIGELOW, P. J.
We concur:
RUBIN, J.
FLIER, J.
name="_ftn1" title="">
the Penal Code unless otherwise specified.
name="_ftn2" title="">
v. Arizona (1966) 384 U.S. 436 (Miranda).
