People v. Jorge D. (In re Jorge D.)

• Decision Date: 06 April 2016
• Docket Number: G051403
• Citation: 246 Cal.App.4th 363,200 Cal.Rptr.3d 878
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE JORGE D., a Person Coming Under the Juvenile Court Law. The People, Plaintiff and Respondent, v. Jorge D., Defendant and Appellant.

246 Cal.App.4th 363

200 Cal.Rptr.3d 878

IN RE JORGE D., a Person Coming Under the Juvenile Court Law.The People, Plaintiff and Respondent,

v.Jorge D., Defendant and Appellant.

G051403

Court of Appeal, Fourth District, Division 3, California.

Filed April 6, 2016

Forest M. Wilkerson, La Quinta, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton, Christopher P. Beesley, and Teresa Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

O'LEARY

, P.J.

Jorge D. appeals from the dispositional order declaring him a ward of the court (Welf. & Inst.Code, § 602

), after the juvenile court found true the allegations he was publicly intoxicated and was a minor in possession of tobacco. Jorge argues the following: (1) there was insufficient evidence he was publicly intoxicated and the detaining officer did not comply with Penal Code section 647, subdivision (g)

(all further statutory references are to the Pen. Code, unless otherwise indicated); and (2) there was insufficient evidence he was a minor in possession of tobacco because a lighter is not punishable under section 308, subdivision (b). We agree with Jorge that the detaining officer did not comply with section 647, subdivision (g), and that possession of a lighter is not punishable under section 308, subdivision (b). Therefore, we reverse the order.

FACTS

A petition alleged 17–year–old Jorge committed public intoxication, a misdemeanor (§ 647, subd. (f)

-count 1), and minor in possession of tobacco, an infraction (§ 308, subd. (b)-count 2). At the contested jurisdictional hearing, Officer Robert Perez, an officer with nearly 10 years of experience, testified concerning his encounter with Jorge. Perez was on patrol one evening about 8:30 p.m., when he received a call regarding suspicious individuals around 1602 West Saint Andrew's Place. When he arrived, Perez saw one person sitting inside a car and three people standing in a group. Perez approached Jorge who was part of the group. Based on his training and experience, Perez observed physical signs Jorge was intoxicated. He noticed Jorge could not speak clearly and his speech was "mumbled, argumentative, and somewhat incoherent." In addition, Jorge had "bloodshot, watery eyes." Jorge was not related to any of the adults present. Perez concluded Jorge was intoxicated. Because Perez believed Jorge posed a danger to himself and was unable to safely walk home alone, Perez arrested Jorge. In searching Jorge during the arrest, Perez found a purple, Bic brand lighter.

On cross-examination, Perez testified he drove Jorge home and dropped him off with his mother. Perez admitted he did not place him in civil protective custody for 72 hours and was not aware of a statute that required him to do so. On redirect examination, Perez testified that if a minor commits a felony he transports the minor to the police station for processing, but if the minor commits a misdemeanor, he will issue the minor a citation and either release the minor or drive the minor home if he feels it is unsafe to walk home.

After the prosecution rested, Jorge moved to dismiss count 1 pursuant to Welfare and Institutions Code section 701.1

. Counsel argued there was insufficient evidence Jorge was publicly intoxicated and Perez failed to place Jorge in civil protective custody as required by section 647, subdivision (g). The juvenile court recessed to review People v. Ambellas (1978) 85 Cal.App.3d Supp. 24, 149 Cal.Rptr. 680

(Ambellas

).¹ When back on the record, the court commented "there wasn't a whole lot of evidence" but viewed cumulatively there was sufficient evidence Jorge was publicly intoxicated. Additionally, the court opined section 647, subdivision (g), was not a bar to delinquency proceedings. The court denied Jorge's motion to dismiss count 1.

Jorge's mother testified she had previously seen him under the influence of alcohol and he did not appear to be intoxicated when Perez dropped him off at home.

The juvenile court found counts 1 and 2 to be true beyond a reasonable doubt. At the dispositional hearing, the juvenile court declared Jorge a ward of the court and stated the maximum term of confinement was six months. The court placed him on probation with various terms and conditions and ordered him to complete 40 hours of community service.

DISCUSSION

I. Section 647

Jorge argues there was insufficient evidence Perez complied with section 647, subdivision (g)

, and that he was unable to care for himself. Because we agree with the former, we need not address the latter.

Section 647, subdivision (f)

, makes it a misdemeanor to be intoxicated in public. Section 647, subdivision (g), states the following: "When a person has violated [section 647,] subdivision (f), a peace officer, if he or she is reasonably able to do so, shall place the person, or cause him or her to be placed, in civil protective custody. The person shall be taken to a facility, designated pursuant to [s]ection 5170 of the Welfare and Institutions Code, for the 72–hour treatment and evaluation of inebriates. A peace officer may place a person in civil protective custody with that kind and degree of force which would be lawful were he or she effecting an arrest for a misdemeanor without a warrant. A person who has been placed in civil protective custody shall not thereafter be subject to any criminal prosecution or juvenile court proceeding based on the facts giving rise to this placement." (Italics added.)

Section 647, subdivision (g)

, provides the subdivision does not apply to the following: "(1) Any person who is under the influence of any drug, or under the combined influence of intoxicating liquor and any drug. [¶] (2) Any person who a peace officer has probable cause to believe has committed any felony, or who has committed any misdemeanor in addition to [section 647

,] subdivision (f). [¶] (3) Any person who a peace officer in good faith believes will attempt escape or will be unreasonably difficult for medical personnel to control."

There is not much published case law interpreting section 647, subdivision (g)

. In Ambellas, supra, 85 Cal.App.3d Supp. at page 27, 149 Cal.Rptr. 680, the court addressed the relationship between section 647, subdivision (f), and section 647, subdivision (ff), which was later amended to be section 647, subdivision (g), without substantive change and which we will hereafter refer to as subdivision (g) (Stats. 1998, ch. 758, § 1, p. 4968). The court described subdivision (g), as "an alternative to criminal prosecution or juvenile court proceedings for persons arrested for violating subdivision (f)." (Ambellas, supra , 85 Cal.App.3d Supp. at p. 27, 149 Cal.Rptr. 680

, fn. omitted.) The court explained subdivision (g), "requires a peace officer who is reasonably able to do so to place a subdivision (f) arrestee in ‘civil protective custody’ in a detoxification center[ ]" and that person is not subject to criminal prosecution or juvenile court proceedings. (Ambellas, supra , 85 Cal.App.3d Supp. at p. 30, 149 Cal.Rptr. 680.) The Ambellas court first concluded subdivision (g), was not an element of the offense of subdivision (f). (Ambellas, supra, 85 Cal.App.3d Supp. at pp. 30–31, 149 Cal.Rptr. 680.) Relying on the use of the word "shall," the court opined subdivision (g), was a defense and "the [prosecution's] failure to follow the proscribed procedure constitutes a basis for challenging the subsequent criminal prosecution. [Citation.]" (Ambellas, supra , 85 Cal.App.3d Supp. at p. 32, 149 Cal.Rptr. 680.)

The Ambellas

court turned to the procedural details of the defense and placed the onus on defendant to initially raise subdivision (g), as a defense and stated as follows: "[W]e hold that when a defendant suggests that the [prosecution]'s failure to comply with subdivision ( [g] ) should result in his acquittal, the burden shifts to the [prosecution] to produce evidence of the reasons for the failure. Once that evidence has been presented the defendant is, of course, free to present other relevant evidence of his own on the issue. And, since the defense is one allowed for reasons extraneous to the guilt or innocence of the defendant [citation] the ultimate burden remains on the defendant to persuade the trier of fact by a preponderance of the evidence that the defense is well taken." (Ambellas, supra , 85 Cal.App.3d Supp. at p. 34, 149 Cal.Rptr. 680.)

The Ambellas

court discussed the factors that may be considered in determining whether an officer reasonably complied with subdivision (g). (Ambellas, supra, 85 Cal.App.3d Supp. at pp. 34–36, 149 Cal.Rptr. 680.) The court stated some of the factors are the following: distance to the nearest detoxification facility; availability of bed space at detoxification facility; the arrestee's disposition and willingness to cooperate; and police department resources to transfer the arrestee to facility. (Id. at pp. 36–37, 149 Cal.Rptr. 680

.)

Finally, the Ambellas

court addressed defendant's three violations of subdivision (f), two of which were before the court by way of a habeas corpus petition and one of which was before the court by way of an appeal. (Ambellas, supra , 85 Cal.App.3d Supp. at p. 28, 149 Cal.Rptr. 680.) The court discharged the habeas corpus petition because there was evidence to support the conclusion defendant was difficult to control and thus civil commitment was inappropriate. (Id. at p. 40, 149 Cal.Rptr. 680.) With respect to the appeal, the court reversed defendant's conviction because the prosecution failed to present evidence establishing the arresting officer was unable to comply with subdivision (g). (Ambellas, supra , 85 Cal.App.3d Supp. at pp. 40–43, 149 Cal.Rptr. 680.)

In Stout v. City of Porterville (1983) 148 Cal.App.3d 937, 940, 196 Cal.Rptr. 301

(Stout ), a police officer stopped plaintiff and questioned him about...