In re Justin B.

Filed 2/28/08 In re Justin B. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FOUR

After the juvenile court denied appellant Justin B.s motion to suppress, it sustained a petition alleging that he possessed cocaine base for sale and loitered in a public place with the intent to commit a specified offense. (Welf. & Inst. Code,  602, subd. (a); Health & Saf. Code,^[1] 11351.5, 11532, subd. (a).) Justin urges on appeal that he cannot be found to have loitered in a public place within the meaning of section 11532 because the gated apartment complex where the alleged loitering occurred was not a public place. We affirm the juvenile courts order.

I. FACTS

On March 8, 2007, Fairfield Police Corporal Daniel Marshall and Officer Samuel Rowland conducted a security check at an apartment complex in Fairfield. They noticed that the complexs front gate, which was normally closed and locked, had been propped open. Aware that the neighborhood was considered a high-crime area with narcotics-related activity, they entered through the gate to investigate.^[2]

Inside the gate, the officers saw four or five individuals congregating in front of a row of apartments. Ezekiel Pearsall and Robert McGoines quickly walked away. Corporal Marshall stopped Pearsall and brought him back to where Officer Rowland was talking with Kenneth Dillon and appellant Justin B., who was then 15 years old. Justin told the police that he did not live in the apartment complex but was there to attend a birthday party. The police ran a background check on the men, discovering that Justin was on juvenile probation with a search and seizure condition and Pearsall and Dillon were on active parole. Subsequently, Corporal Marshall searched all three men, turning up no evidence of a crime and allowed them to leave the complex. Corporal Marshall had seen McGoines enter a certain apartment, so the officers, after finishing this search, went there to question him. McGoines said that he had fled to his apartment to avoid being caught up with Justin who had offered to sell marijuana to him.

The officers then proceeded to look for Justin as he was leaving the premises following the search, finding him outside of the complexs gates. The officers arrested him for offering to sell narcotics and loitering for the purpose of selling narcotics. Officer Rowland conducted a custodial search when he booked Justin and found over $450 in cash in his wallet and a plastic baggie wedged between his buttocks that contained 18 individual packages of cocaine base, weighing a total of 9.85 grams.

A petition was filed alleging that Justin should be declared a ward of the court for felony possession of cocaine base for sale and for misdemeanor loitering in a public place with the intent to commit controlled substance offenses. (See  11351.5, 11532, subd. (a).) At the hearing on the petition, the juvenile court heard evidence that while the officers arrested Justin outside of the complex, he did, in fact, engage in the alleged criminal conduct on the complexs grounds inside the fence. The juvenile court sustained the petition, finding Justins maximum term of confinement to be six years four months. It granted him probation subject to electronic monitoring.

II. DISCUSSION

A. Standard of Review

Justin argues that the juvenile court erred in sustaining the part of the petition^[3] alleging that he committed misdemeanor loitering in a public place with the intent to commit a specified offense within the meaning of section 11532, subdivision (a). Citing the language of Penal Code section 647, subdivision (f)^[4]and cases discussing that provision, he maintains that he was not in a public place when the officers confronted him inside the opened gate, on the complexs grounds. Thus, he reasons there was insufficient evidence to support the finding that he violated section 11532, subdivision (a).^[5]

On appeal, an issue of statutory construction presents a legal issue for us to resolve. We conduct an independent review of this issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 432.) The facts before us are undisputed, so the application of those facts in the context of the applicable statute also involves a question of law for our independent appellate determination. (International Engine Parts, Inc. v. Feddersen & Co. (1995) 9 Cal.4th 606, 611.)

We construe statutory language in order to determine the Legislatures intent at the time it enacted the statute. (People v. Leal (2004) 33 Cal.4th 999, 1007; People v. Toney (2004) 32 Cal.4th 228, 232.) To give effect to that legislative intent, we first look to the plain meaning of the words of the statute. (People v. Lopez (2003) 31 Cal.4th 1051, 1056.) The statutes words are given their ordinary and usual meaning and are interpreted in context. (People v. Lawrence(2000) 24 Cal.4th 219, 230.) We must interpret the statute in a manner that promotes its general purpose and avoids absurd results. (People v. Sinohui (2002) 28 Cal.4th 205, 212.) If the statutory language is ambiguous, we may consider extrinsic evidence. (People v. Lopez, supra, 31 Cal.4th at p. 1056.) However, if the statutory meaning is clear and unambiguous, extrinsic indicia of legislative intent are not admissible. (People v. Loeun (1997) 17 Cal.4th 1, 9.)

B. Analysis

In chapter 9.5 of the Health and Safety Code, section 11532 makes it unlawful for any person to loiter in any public place in a manner and under circumstances manifesting the purpose and with the intent to commit an offense . . . . ( 11532, subd. (a).) Within this same chapter and enacted contemporaneously with section 11532, section 11530 defines a public place, in relevant part, as an area open to the public or exposed to public view, including doorways and entrances to buildings or dwellings and the grounds enclosing them. ( 11530, subd. (b); see Stats. 1995, ch. 981, 2, pp. 7466-7467.) When construing one statute, we consider it in conjunction with other laws enacted at the same time of which it is a part. (See, e.g., Rodriguez v. Superior Court (1993) 14 Cal.App.4th 1260, 1268-1269 [two code sections enacted as part of same initiative measure construed together].)

We are satisfied that the plain meaning of section 11530, subdivision (b) supports the finding that Justin loitered in a public place within the meaning of section 11532, subdivision (a). The apartment complexs front gate was propped open when the officers came to the building. While the gate was open, the grounds between the apartment complex and the surrounding fence where the police initially encountered Justin were exposed to public view. (See  11530, subd. (b).) Corporal Marshall also testified that undercover officers often go into the complex to buy narcotics from street level dealers, implying that it could be easily accessed by the general public, even if the gate was closed. From this undisputed testimony, we are satisfied that this complex was exposed to public view such that it constitutes a public place within the meaning of section 11530, subdivision (b).

Justin would like us to consider the definition of public place in the public inebriation law as codified in Penal Code section 647, subdivision (f).^[6] We would not find this evidence persuasive. The interpretation of section 11532, subdivision (a) bolstered by the more specific statute of section 11530, subdivision (b) prevails over the more generally applicable Penal Code provision. (See Miller v. Superior Court (1999) 21 Cal.4th 883, 895.) We are satisfied that the explicit definition of the term public place in section 11530, subdivision (b) makes clear the Legislatures intended meaning of this term within section 11532, subdivision (a).

III. DISPOSITION

The juvenile courts order is affirmed.

_________________________

Reardon, J.

I concur:

_________________________

Sepulveda, J.

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In re Justin B., A118073

Concurring opinion of Ruvolo, P. J.

I concur in the result, but would affirm the judgment on the ground that appellant has waived the argument he raises on appeal by his failure to raise it below. Ordinarily,  issues not raised in the trial court cannot be raised for the first time on appeal. [Citation.] (Sea & Sage Audubon Society v. Planning Com. (1983) 34 Cal.3d 412, 417.) Principles of waiver apply equally to juvenile delinquency proceedings. (In re Brian K. (2002) 103 Cal.App.4th 39, 42.) W]hether the [waiver] rule should be applied is largely a question of the appellate courts discretion. [Citations.] (Resolution Trust Corp. v. Winslow (1992) 9 Cal.App.4th 1799, 1810.)

I do not believe we should exercise our discretion and entertain the issue. Appellant seeks to set aside the trial courts true finding that he violated Health and Safety Code section 11532, arguing that he was not in a public place at the time of the offense. Even if the argument appellant raises is genuinely a pure question of law on undisputed facts, the doctrine of waiver applies. I recognize that we may nevertheless exercise discretion to decide an issue not raised below, particularly if the issue is one of public interest, or involves the due administration of justice. (Fisher v. City of Berkeley (1984) 37 Cal.3d 644, 654, fn. 3, disapproved on another point in Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 774; Fox v. State Personnel Bd. (1996) 49 Cal.App.4th 1034, 1039.) Neither the public interest nor the administration of justice is implicated by this case, a conclusion fortified by the decision of the majority not to publish its opinion in this case, a decision with which I agree. In any event, I would not exercise discretion and decide the new argument without it first having been raised in, and decided by, the trial court. (Hussey-Head v. World Savings & Loan Assn. (2003) 111 Cal.App.4th 773, 783.)

__________________________________

Ruvolo, P. J.

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^[1]All further statutory references are to the Health and Safety Code unless otherwise indicated.

^[2]Before this event, the apartment manager had asked the Fairfield Police Department for a higher level of police enforcement, especially against trespassers.

^[3]Justin does not dispute the juvenile courts findings that he loitered with the intent to sell a controlled substance or that he committed felony possession of cocaine base for sale.

^[4]Penal Code section 647, subdivision (f) provides that a person is guilty of misdemeanor disorderly conduct if he or she is found in any public place under the influence of intoxicating liquor . . . in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor . . . interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.

^[5]Justin did not raise this issue in the juvenile court. We would consider the issue waived on appeal if its resolution turned on factual disputes that were not resolved at trial. (People ex rel. Dept. of Transportation v. Superior Court (2003) 105 Cal.App.4th 39, 46.) However, as this issue involves the legal interpretation of statutory language in the context of undisputed facts, we will consider it. (People v. Carr (1974) 43 Cal.App.3d 441, 444.)

^[6]Justin also claims that we must give the same meaning to words used in different statutes that are in pari materia to interpret the statutory language. (People v. Hill (1980) 103 Cal.App.3d 525, 533 fn. 4.) However, this method of statutory construction may only be used if we find that the statutes plain meaning is ambiguous. (People v. Lopez, supra, 31 Cal.4th at p. 1056.) We do not find the cited language in section 11532, subdivision (a) to be ambiguous, as it is specifically defined in section 11530.