People v. Southern (In re Southern)

• Decision Date: 03 August 2018
• Docket Number: A151945
• Court: California Court of Appeals Court of Appeals
• Parties: In re OMAR S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. OMAR S., Defendant and Appellant.

In re OMAR S., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. OMAR S., Defendant and Appellant.

A151945

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

August 3, 2018

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Napa County Super. Ct. No. JV18375)

In this juvenile delinquency case, Omar S. was found to have committed two misdemeanors: public intoxication (Pen. Code, § 647, subd. (f))¹ and possession of alcohol by a minor (Bus. & Prof. Code, § 25662, subd. (a)). At disposition, he was placed on probation. Omar challenges the sufficiency of evidence underlying the jurisdictional findings and contends the juvenile court imposed an unreasonable and unconstitutionally overbroad probation condition. We strike the probation condition and remand for modification. In all other respects, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

In August 2016, the Napa County District Attorney filed a wardship petition (Welf. & Inst. Code, § 602), alleging Omar's commission of two misdemeanors: public intoxication (§ 647, subd. (f); count one) and possession of alcohol by a minor (Bus. & Prof. Code, § 25662, subd. (a); count two).

At the contested jurisdiction hearing, Napa Police Department Officer Adam Davis was the only witness. Davis was working as a patrol officer on June 3, 2016. At about 10:30 p.m., he drove through a trailer park and noticed a group of six or seven people standing by several parked cars in the common parking area. The parking area was approximately 75 to 100 feet away from the street. On the trunk of a parked car, Davis saw "numerous . . . open or empty cans of Corona beer." This concerned Davis because drinking alcohol in public violates the municipal code. Furthermore, some of the persons appeared to be under the age of 21. As he approached, a few individuals began hiding cans.

Davis initiated a conversation with Omar, who was standing next to the trunk of the car with the beer cans on it. Davis asked Omar how old he was. Omar hesitated, but eventually told Davis he was 17 and admitted he had consumed alcohol. Davis noticed Omar's speech was "slurred and thick." Davis "had a difficult time understanding what [Omar] was saying because [his speech] was so slurred." Davis also observed Omar had "watery and glassy eyes," and his breath smelled "strong[ly]" of alcohol. Omar appeared "unsteady" on his feet; he swayed, about two to three inches, back and forth.

Davis called Omar's mother, but was unable to reach her. That no parent was available "to make sure [Omar] was safe" raised additional concern for Davis; he was afraid Omar would not "make good decisions" if left alone.² Davis asked Omar to blow into a breathalyzer device, to which Omar consented and gave two samples. The results were 0.169 and 0.161, which is twice the legal driving limit. Davis stated this was "a pretty high level especially for a juvenile." After considering the totality of the circumstances, Davis arrested Omar. Davis relied on the presence of nearby alcohol, the strong odor of alcohol on Omar's breath, his swaying, his slurred speech, and his "glassy watery eyes." If left alone, Davis believed Omar "was a danger to himself or others due to his level of intoxication." Davis based this concern on his observations and the factthat he had seen "probably more than a thousand people drunk through the years of being an officer."

Davis took Omar to the hospital for medical clearance. At the hospital, Davis reached Omar's mother via telephone. Omar's mother was unable to pick Omar up. At this point, Omar "yelled a little bit," said "this is bullshit," and kicked a gurney. Omar's speech remained slurred. As a result, Davis needed to ask questions several times to elicit an understandable response.

Defense counsel cross-examined Davis.³ Although Davis acknowledged being aware of a statutory requirement to place Omar in civil protective custody if possible (§ 647, subd. (g)), he did not do so. Davis explained: "[W]e have a detox center which is at the Napa State Hospital. I do not believe they accept juveniles there." Davis made no inquiry on Omar's behalf because he "had never done it in [his] 16 years" on the job.

After the People rested, Omar moved to dismiss both counts, pursuant to Welfare and Institutions Code section 701.1, arguing insufficiency of the evidence.⁴ In particular, with respect to count one, defense counsel argued there was insufficient evidence Davis complied with section 647, subdivision (g). The court delayed ruling on the motion and granted the prosecution leave to research and brief the issue. Omar consented to a continuance but objected to any reopening of evidence.

The People's written opposition argued Davis's actions were reasonable because "a juvenile sobering facility . . . does not exist in Napa County." In the alternative, thePeople argued the section 647, subdivision (g) defense did not apply because Davis had probable cause to believe Omar had committed another misdemeanor in addition to public intoxication. (See § 647, subd. (g)(2).)

After several continuances, the juvenile court denied Omar's motion to dismiss and found both counts "true." In denying Omar's motion, the trial court explained: "I'm not inclined to find that the officer had to undertake a futile attempt to find a facility when there was none. In the officer's information over many years being an officer was that he never heard of one. So I think . . . both of the exceptions to the requirement to take a person to a recovery facility are established. So I don't find that the officer had failed to take him to a place that didn't exist, or that the minor was not in possession of alcohol."

The probation department's dispositional report indicated Omar was then 18 years old and employed. He had not graduated from high school and reported regularly drinking alcohol and using marijuana. Omar had also experimented with cocaine and methamphetamine. Omar admitted association with Sureño gang members and had four separate law enforcement contacts since his arrest. A recent search of Omar's cell phone uncovered a photograph of Omar with documented Sureño gang members. In the photograph, Omar was "displaying hand signs consistent to that of a Sureño gang member."

The probation department recommended Omar be placed on formal wardship probation subject to several conditions. One of the recommended conditions required Omar to "submit all electronic devices under [his] control to search and seizure by any law enforcement or probation officer at any time of the day or night with or without a search warrant, arrest warrant, or reasonable suspicion. [Omar] shall also disclose any and all passwords, passcodes, password patterns, fingerprints, or other information required to gain access into any electronic device as requested by any law enforcement or probation officer."

At the dispositional hearing, Omar's trial counsel objected to the electronic search condition.⁵ The juvenile court adjudged Omar a ward of the court, ordered him to serve three days in juvenile hall, and placed him on probation with various terms and conditions, including the recommended electronic search condition. Omar was also prohibited, inter alia, from possessing or consuming alcohol and illegal drugs and from associating with gang members. Omar filed a timely notice of appeal.

II. DISCUSSION

Omar contends (1) insufficient evidence supports the juvenile court's jurisdictional findings on both counts, and (2) the electronic search condition is unreasonable and unconstitutionally overbroad. Omar's substantial evidence arguments are without merit. Although the electronic search condition is valid under People v. Lent (1975) 15 Cal.3d 481 (Lent), superseded on other grounds as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-291, we agree it is overbroad as written.

A. Sufficiency of the Evidence

Omar contends insufficient evidence supports the juvenile court's jurisdictional findings. He also maintains the juvenile court erred in denying his motion to dismiss. The latter question is also, at base, one of substantial evidence. (In re Man J. (1983) 149 Cal.App.3d 475, 481-482 ["the standard for review of the juvenile court's denial of a motion to dismiss is whether there is substantial evidence to support the offense charged in the petition"].)

When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359,1371.) "[O]ur perspective must favor the judgment. [Citations.] 'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis...