Opinion
D057960 Super. Ct. No. J225345
08-29-2011
In re CARLOS R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. CARLOS R., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from findings and orders of the Superior Court of San Diego County, Carolyn M. Caietti, Judge, and Lawrence Kapiloff, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
INTRODUCTION
The juvenile court found Carlos R. committed the felony offense of possessing marijuana for sale (Health & Saf. Code, § 11359). The juvenile court adjudged Carlos to be a ward of the court (Welf. & Inst. Code, § 602), and placed him under the supervision of the probation department and in the custody of his parents.
Carlos appeals the juvenile court's adjudication of wardship, contending there is insufficient evidence to support the juvenile court's finding he possessed marijuana for sale. He also contends the juvenile court erred in denying his motion to suppress, as his detention and the subsequent search of his backpack were constitutionally unreasonable. We conclude these contentions lack merit and affirm the juvenile court's findings and orders.
DISCUSSION
I
Sufficiency of Evidence Minor Possessed Marijuana For Sale
A
Background
According to the trial evidence, around 9:20 a.m., San Diego Police Officer Renee Ruff and her partner Officer James Ryan were patrolling near a high school when they saw Carlos on a corner approximately two blocks from the high school. He was youthful looking and was carrying a backpack on his shoulder. Officer Ruff stopped and contacted him because it was a school day and he appeared to be school age. She asked him for his identification and he gave her his high school identification. She then arrested him for daytime loitering.
Carlos's substantial evidence issue requires our consideration of the evidence presented at trial. His suppression issue requires our consideration of similar, but not identical, evidence presented at the suppression hearing. Although somewhat repetitive, we have separately summarized the relevant evidence for each issue to avoid confusion about what facts we considered in reaching our respective decisions.
Before putting him in her patrol car, Officer Ruff searched Carlos and his backpack. She found a green container with marijuana in his left pocket, a cell phone in his right pocket, and a small, black scale in his backpack. The gross weight of the container and the marijuana was 30.8 grams. On the scale were remnants of a green, leafy substance Officer Ruff believed, based on her training, was marijuana.
Officer Ruff placed Carlos's belongings on the trunk of her patrol car. After Officer Ruff advised Carlos of his rights under Miranda v. Arizona (1966) 384 U.S. 436, Carlos agreed to speak with her and told her the cell phone was his, he was holding the marijuana for a friend, and the scale was for history class. When Officer Ruff pointed out the absurdity of his explanation for possessing the scale, Carlos changed his response and told her he was holding the scale for a friend.
Around that time, Juvenile Service Officer Christina Aguilar arrived to assist. She searched through the text messages on Carlos's cell phone and found several messages sent to and from the phone two days before Carlos's arrest. A message sent from the phone around 9:00 a.m. to "Sneeks" said, "Hey, You down to smoke some herb?" A message sent to the phone around 2:00 p.m. from "Sneeks" said, "Yeah, but can we buy one and I'll pay you Friday the rest." A message sent to the phone from "Hal" said, "Still down to smoke," and another from "Sneeks" that said, "Let's go to the movies stoned on Friday."
Officer Aguilar also found the following messages sent to and from the phone one day before Carlos's arrest. A message sent from the phone around noon to "Mario" said, "What's up? You want to buy some thizz?" A message sent around 2:00 p.m. from "Hal" explained his "new connect hooks it up a lot more than Randy." A message sent to the phone around 2:30 p.m. from "Hal" said, "It's all good. Don't have money yet to. I just smoked with Francis. He got like 1.5 or more for $20." A message sent from the phone a few minutes later to "Hal" said, "Down to smoke a blunt tonight."
The officers drove Carlos to the high school and released him to San Diego Unified School District Police Officer Michael Hendrickson. Officer Hendrickson searched Carlos's backpack. He found a wad of tissue paper with a strong marijuana smell sticking out of the end of a binder. Inside the tissue paper was a baggie containing 10.84 grams of marijuana.
San Diego Police Narcotics Detective Robert Newquist explained "blunt" and "herb" are street terms for marijuana. He also explained the text stating Francis "got 1.5 more for $20" meant Francis bought 1.5 grams of a substance for $20, which is a common price for marijuana.
Officer Newquist opined Carlos possessed the marijuana for the purposes of selling it. He based his opinion on the totality of the circumstances, including the amount of marijuana; the concurrent possession of a scale, which is not necessary to use marijuana; and the text messages, which contain language indicative of sales. He acknowledged on cross-examination he could not say with certainty the marijuana was possessed for sale. Rather, he stated he "would lean more toward likely based on my training and experience."
The juvenile court subsequently found beyond a reasonable doubt Carlos had committed the crime of possessing marijuana for sale. Carlos contends we must reverse the juvenile court's adjudication of delinquency because there is insufficient evidence to support the juvenile court's finding. We disagree.
B
Analysis
"Our review of [a 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 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.)
" 'Unlawful possession of a controlled substance for sale requires proof the defendant possessed the contraband with the intent of selling it and with knowledge of both its presence and illegal character. [Citation.]' [Citations.] Intent to sell may be established by circumstantial evidence. [Citation.]" (People v. Harris (2000) 83 Cal.App.4th 371, 374.) "Such evidence may consist of the quantity of narcotic, the equipment found with it, the place it was found, the manner of packaging, and the opinion of an expert that the narcotic was being held for sale. [Citations.]" (People v. De La Torre (1968) 268 Cal.App.2d 122, 126.)
In this case, the juvenile court based its finding that Carlos had the intent to sell on Carlos's possession of two containers of a "fairly substantial amount" of marijuana, the drug-related text messages found on his cell phone, and the scale found in his backpack. While any one of these factors might be insufficient to support a finding of intent to sell, a rational trier of fact could reasonably infer intent to sell from the combination of these factors.
Although Carlos devotes much of his briefing on this issue to challenging the sufficiency of the expert's opinion as a basis for the juvenile court's finding, we note the juvenile court did not specifically rely on the expert's opinion for its finding nor was it required to do so. (See, e.g., Pen. Code, § 1127 [The trier of fact is not obliged to accept an expert opinion as conclusive, but should give the opinion the weight to which it finds the opinion to be entitled.].) The juvenile court also did not impermissibly disregard the expert's opinion. (Ibid. [The trier of fact may disregard an expert opinion if it finds the opinion to be unreasonable.].) Rather, the expert opinion was consistent with and bolstered the juvenile court's finding. The juvenile court's finding was also bolstered by Carlos's implausible initial explanation as to why he had the scale in his backpack, Officer Ruff's observation of remnants of a green, leafy substance on the scale, and the expert's indisputable observation that a person does not need a scale to use marijuana. Accordingly, we have no difficulty concluding there is sufficient evidence to support the juvenile court's finding Carlos possessed the marijuana for sale.
II
Reasonableness of Minor's Seizure and Search of His Possessions
A
Background
Before his adjudication hearing, Carlos moved to suppress the evidence against him, arguing his detention and arrests, and the search of his backpack, were constitutionally unreasonable. According to the evidence presented at the motion hearing, around 9:20 a.m., Officer Ruff and her partner Officer Ryan were patrolling near a high school when Officer Ruff saw Carlos walking down the street by himself in the direction of and at least a block from the high school. Carlos was youthful looking and was carrying a backpack over his shoulder. Because it was a weekday during school hours, Officer Ruff knew anyone school age should be in school. She pulled over, approached Carlos, and asked him for his identification. Carlos cooperated, giving Officer Ruff his high school identification and telling her he had slept in. According to Officer Ruff, she could not simply allow Carlos to go on his way, but was obliged to make sure he got to school safely. Officer Ruff detained Carlos for daytime loitering and handcuffed him.
Before placing Carlos in her patrol car, consistent with normal standard operating procedures and for school safety purposes, Officer Ruff searched Carlos and his backpack. Officer Ruff found a plastic container of marijuana in one of his pockets and a cell phone. He also had a digital scale with marijuana residue on it in his backpack.
Around that time, Officer Aguilar arrived to assist. She searched through the text messages on Carlos's cell phone. She found messages referring to drug use and showed them to Officers Ruff and Ryan.
After placing Carlos in the patrol car, Officer Ruff transported Carlos to the high school and released him to Officer Hendrickson. Approximately 30 to 45 minutes passed from the time Officer Ruff stopped Carlos to the time she left him at school.
Officers Ruff and Ryan informed Officer Hendrickson they found Carlos off campus during school hours. They also informed Officer Hendrickson they found marijuana on Carlos. Officer Hendrickson confirmed Carlos was enrolled at the high school and called his parents to pick him up. He then held Carlos at the high school until Carlos's father arrived.
Concerned Carlos might be involved in some gang activity at the high school, Officer Hendrickson asked Carlos while Carlos's father was present if there was anything in his backpack that would get him in trouble. Carlos replied, "No." Officer Henrickson asked if he could look in the backpack and Carlos responded, "Go ahead." Officer Henrickson searched the backpack and found a plastic baggie containing marijuana inside a binder.
After hearing the evidence and the arguments of counsel, the juvenile court denied Carlos's suppression motion. Carlos contends the juvenile court erred by denying the motion because Officer Ruff did not have reasonable suspicion to detain him and, even if she did, her subsequent arrest and search of him and his backpack were constitutionally unreasonable under the circumstances. We conclude these contentions lack merit.
B
Analysis
"The standard of review for the denial of a motion to suppress is well settled. '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 or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]' [Citation.]" (People v. Roberts (2010) 184 Cal.App.4th 1149, 1189.) This standard of review applies equally to juvenile court proceedings. (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)
Unless exempted, children age six through 18 must attend school full time. (Ed. Code, § 48200; In re James D. (1987) 43 Cal.3d 903, 918 (James D.).) A police officer may arrest or assume temporary custody of any minor who is subject to compulsory full-time or continuation education if the police officer finds the minor away from home and absent from school during school hours without a valid excuse. (Ed. Code, § 48264.) Once a police officer arrests or takes custody of a truant minor, the police officer must deliver the minor "forthwith" to designated people or locations, including the school from which the minor is absent. (Ed. Code, § 48265.) Thus, the objective of a truancy arrest is to place the minor in a school setting as quickly as possible. (James D., supra, at pp. 915-916; In re Miguel G. (1980) 111 Cal.App.3d 345, 349.)
A police officer may detain a person to investigate whether the person is truant when there are specific and articulable facts causing the officer to reasonably suspect the person is committing a truancy violation. (James D., supra, 43 Cal.3d at p. 916; In re Humberto O. (2000) 80 Cal.App.4th 237, 241 (Humberto O.).)Among the factors the officer may rely upon to justify a truancy detention are the person's youthful appearance, his or her possession of a book bag, and his or her presence away from school grounds while school is in session. (James D., supra, at pp. 917-918; Humberto O., supra, at p. 241.) The person's distance from school and direction of travel may also be relevant factors. (James D., at p. 917; Humberto O., at p. 242.)
Here, Officer Ruff stopped Carlos because he had a youthful appearance, he was carrying a backpack over his shoulder, and he was not in school even though it was a school day and school was in session. Officer Ruff could reasonably suspect from these facts that Carlos was committing a truancy violation. Although Carlos was only a few blocks from and heading toward a high school when Officer Ruff noticed him, these circumstances do not preclude him from being truant or Officer Ruff from reasonably suspecting he may be committing a truancy violation. Truancy behavior includes unauthorized tardiness and absences in excess of 30 minutes. (Ed. Code, § 48260.) Since Officer Ruff noticed Carlos at around 9:20 a.m., she could reasonably infer he was more than 30 minutes late for school. It was not necessary for her to know with certainty that he was more than 30 minutes late in order to justify a truancy detention. (James D., supra, 43 Cal.3d at p. 917 [a police officer does not need to know a person is actually a truant to justify a truancy detention].)
Once Officer Ruff learned Carlos did not have an excuse for being late for school, she had probable cause to arrest him for a truancy violation. (Humberto O., supra, 80 Cal.App.4th at pp. 241-242; In re Miguel G., supra, 111 Cal.App.3d at p. 350 [a police officer has probable cause to arrest a truant minor under Education Code section 48624 if the minor is truant and does not have an excuse for being absent from school during school hours].) She could then, incident to arrest, search Carlos and areas within his control, including his backpack. (Humberto O., supra, at pp. 242-243.) Contrary to Carlos's assertion, the limited scope of a truancy arrest and its objective of expeditiously returning a minor to school do not preclude an officer from conducting a search incident to the arrest. (Ibid.)Moreover, as Officer Ruff ultimately testified, the purpose of her search was to ensure both officer and school safety. We can fathom no legal or policy justification for dispensing with reasonable safety precautions simply to return a truant minor to school a few minutes sooner. We, therefore, conclude Officer Ruff's detention, arrest, and search of Carlos were constitutionally reasonable and the juvenile court properly denied Carlos's suppression motion.
DISPOSITION
The juvenile court's findings and orders are affirmed.
MCCONNELL, P. J. WE CONCUR:
HALLER, J.
MCDONALD, J.