People v. M.P. (In re M.P.)

• Decision Date: 31 January 2019
• Docket Number: F076900
• Court: California Court of Appeals Court of Appeals
• Parties: In re M.P., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. M.P., Defendant and Appellant.

In re M.P., a Person Coming Under the Juvenile Court Law.THE PEOPLE, Plaintiff and Respondent, v. M.P., Defendant and Appellant.

F076900

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

January 31, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. JJD069608)

OPINION

APPEAL from an order of the Superior Court of Tulare County. Robert Anthony Fultz, Judge.

Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice Su, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- Appellant M.P. appeals from a dispositional order issued pursuant to Welfare and Institutions Code sections 602 and 725¹ after the juvenile court found he had evaded a police officer, driven under the influence of alcohol, and was an unlicensed driver, all misdemeanors. M.P. was placed on probation, a condition of which required that he submit to searches of his electronic devices to ensure he did not associate with certain specified coparticipants in a previous matter. On appeal, he challenges the true finding of evading a police officer and the electronics search condition of his probation. The People move to dismiss the appeal for lack of jurisdiction based on technical deficiencies in the notice of appeal.

We conclude we have jurisdiction over the appeal and deny the People's motion. We find the evidence insufficient to support the true finding on evading a police officer and therefore strike this finding. We also find the electronics search condition unconstitutionally overbroad. Accordingly, we strike this condition and remand for modification. We otherwise affirm.

PROCEDURAL HISTORY

Prior to the events at issue in this appeal, M.P. was the subject of several petitions alleging he came within the provisions of section 602, subdivision (a). The first petition alleged M.P. committed the offenses of unlawful driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and receiving stolen property (Pen. Code, § 496d, subd. (a)). M.P. admitted both allegations contingent on his acceptance into the deferred entry of judgment ("DEJ") program, into which he was accepted.

While the deferral for the first petition was pending, the People filed a second petition, this time alleging M.P. committed the offense of public intoxication. (Pen. Code, § 647, subd. (f).) As a result, the court detained M.P. and terminated his DEJ program. M.P. later admitted to an infraction (Pen. Code, § 19.8) and was released onelectronic monitoring. Subsequently, the court declared the two allegations in the first petition to be felonies, declared the minor a ward, placed him at home, and imposed conditions of probation. Relevant here, the court imposed a probation condition requiring M.P. to avoid contact "in person, in writing, by telephone or electronic means" with co-participants to those offenses, G.B., A.S.M., and J.P. The court also required M.P. to submit to search of "any object under his/her control, including any electronic devices, at any time, day or night, with or without a search warrant, with or without his/her consent, by any Peace Officer or Probation Officer."

Thereafter, the People filed the petition at issue in the instant case, alleging a felony violation of unlawful driving or taking of a vehicle (Veh. Code, § 10851, subd. (a); count 1); a misdemeanor violation of evading a police officer (Veh. Code, § 2800.1, subd. (a); count 2); a misdemeanor violation of driving under the influence of alcohol (Veh. Code, § 23152, subd. (a); count 3); a misdemeanor violation of being an unlicensed driver (Veh. Code, § 12500, subd. (a); count 4); and an infraction for being a minor and driving with a blood alcohol level of 0.05 percent (Veh. Code, § 23140, subd. (a); count 5).

The matter was set for a contested hearing. During the pendency of the petition, minor admitted a violation of his probation.

Following testimony and arguments at the contested hearing, the court dismissed count 1 and found counts 2 through 5 of the petition true. The court subsequently dismissed count 5 on the People's motion.

Terms and conditions of probation were imposed and the minor was placed with his parents. Probation recommended and the court imposed a probation term that read: "The minor shall submit to a search of his/her electronic devices to ensure: He does not associate with co-participants in previous matter," then listed those co-participants as G.B., A.S.M., and J.P. The court also ordered that all prior terms and conditions ofprobation remained in full force and effect. As stated, the prior terms included a prohibition against association with G.B., A.S.M., and J.P.

FACTUAL BACKGROUND

The facts underlying the instant petition were presented primarily through the testimony of Officer Gabriel Correa at the jurisdictional hearing.

Officer Correa testified that he was on duty on May 7, 2017 at 3:40 a.m. when he observed a silver BMW that appeared to be making a very slow turn.² He then observed a gold Toyota make the same turn very rapidly. The BMW then sped up as though it was trying to get away from the Toyota. The Toyota pulled alongside the BMW and it appeared they were racing. Officer Correa followed the vehicles and observed them fail to stop at a posted stop sign. The BMW pulled to the side of the roadway and the driver exited the vehicle. The Toyota skidded to a stop. The driver of the BMW, who Officer Correa later identified as M.P., put his hands up "in a manner like, 'What are you doing,' and he was facing towards the Toyota." M.P. seemed scared.

At that point, Officer Correa activated his emergency lights. M.P. reentered the BMW and drove away. The occupants of the Toyota reentered their vehicle and began to follow him. Officer Correa activated his patrol siren. Officer Correa initiated pursuit and observed both vehicles reach high speeds in a residential area. He estimated the vehicles were traveling at 40 to 60 miles per hour in an area with a 25-miles-per-hour speed limit. The vehicles turned down a cul-de-sac. The BMW pulled into a driveway at the end of the cul-de-sac and the Toyota stopped in the middle of the end of the cul-de-sac.

Officer Correa exited his patrol vehicle with his firearm drawn and ordered all of the occupants of both vehicles to put their hands up. The occupants of the Toyota complied; the occupants of the BMW did not. Assisting officers began to arrive on sceneand secured the occupants of the Toyota. They then walked up to the BMW and ordered the occupants out. M.P. and a female juvenile exited the vehicle.

Officer Correa smelled an odor of alcohol emanating from M.P. and, while another officer was conducting a horizontal gaze nystagmus test on M.P., Officer Correa observed signs that M.P. was intoxicated. During the stop, Officer Correa spoke with M.P.'s grandmother by phone to determine whether she permitted M.P. to have her vehicle. She informed Officer Correa that she did not, but she did not want to press charges. At the time, she sounded very "slumberful."

Officer Correa transported M.P. to the Exeter Police Department, where he administered a preliminary alcohol screen device test. The result of the test was a blood alcohol level of 0.05 percent. Officer Correa also learned that M.P. did not have a California driver's license.

M.P.'s grandmother testified that she never told police M.P. couldn't have her vehicle. She could not remember whether she gave M.P. permission to drive her vehicle, but stated it was possible she had done so. She did not have a problem with M.P. taking her car.

DISCUSSION

I. The People's Motion to Dismiss

The People move to dismiss the appeal for lack of jurisdiction because M.P.'s notice of appeal identified the nonappealable "findings made at the jurisdictional hearing, which concluded on 10/19/17," as the appealable order.³ There is no dispute that anorder made at the jurisdictional hearing does not independently constitute an appealable order. Nonetheless, as we explain, we conclude the notice of appeal is sufficient to confer appellate jurisdiction.

The primary purpose of the jurisdictional hearing in a delinquency proceeding is to determine whether sufficient evidence exists to declare the minor a ward of the juvenile court. (§§ 602, 701, 702; Cal. Rules of Court, rule 5.780(a); In re P.A. (2012) 211 Cal.App.4th 23, 31 (P.A.).) If the court finds the minor is a person described in section 602, the court then proceeds to hold a dispositional hearing. (§ 702; Cal. Rules of Court, rule 5.780(f).) "Significantly, the jurisdictional order is an intermediate, nonappealable order." (P.A., supra, at p. 32.) However, any errors that arise in the jurisdictional phase of a case are reviewable on appeal from the dispositional order. (See ibid.)

"The notice of appeal must be liberally construed, and is sufficient if it identifies the particular judgment or order being appealed." (Cal. Rules of Court, rule 8.405(a)(3).) The policy of liberal construction "is especially vital where the faulty notice of appeal engenders no prejudice and causes no confusion concerning the scope of the appeal." (Norco Delivery Service, Inc. v. Owens Corning Fiberglas, Inc. (1998) 64 Cal.App.4th 955, 960-961; see In re Joshua S. (2007) 41 Cal.4th 261, 272.) In light of the principle that a notice of appeal must be liberally construed, courts have held that "a notice purporting to appeal from jurisdictional findings will be deemed to refer to the subsequent dispositional order, assuming there is one." (In re Bettye K. (1...