Callahan v. Michael V.

Opinion MOSK, J. Michael V., a 17-year-old minor, appeals from an order of the juvenile court finding that he is a person described in section 602 of the Welfare and Institutions Code1 and adjudging him a ward of the court (Welf. & Inst. Code, § 725, subd. (b)) by reason of his having violated section 11910 (now § 11377) of the Health and Safety Code (unlawful possession of restricted dangerous drugs). He challenges the above finding and his resultant commitment on the ground that the jurisdictional determination under section 602 was based on evidence obtained by an illegal search of his person. We conclude that this contention is without merit, and therefore affirm the order. — 680 — On an evening in June 1971, two patrolling Alameda County sheriff’s officers heard what sounded like a small caliber gunshot coming from the vicinity of a nearby shopping center and, fearing a robbery, drove into the parking lot at one end of the center. After scanning the stores in the area and finding nothing unusual, they observed four male youths sitting near a fence that enclosed the lot. From their car the officers asked the boys if they had heard a loud noise. The boys replied affirmatively and indicated the sound had come from the direction of another group about 25 yards away in the same lot. That group, they said, had just left. The officers, noting that the fence surrounding the parking lot would prevent such a quick exit, decided to investigate the possibility that the four boys had themselves set off fireworks in violation of a county ordinance.2 The officers stepped out of the patrol car and asked the boys to come over to the vehicle and empty their pockets. This communication took the following form: “Okay, boys, why don’t you empty your pockets on the car?” Three of the youths began to comply, but appellant took flight. The officers apprehended him, informed him he was under arrest for “resisting” (Pen. Code, § 148), and searched him. They found a bottle of 28 secobarbital capsules, 9 firecrackers, and 2 books of matches. Juvenile authorities filed a supplemental petition charging that appellant was a person described by section 602 of the Welfare and Institutions Code in that he violated section 11911 of the Health and Safety Code (possession for sale of a restricted dangerous drug). At the hearing, the secobarbital tablets found on appellant’s person were introduced in evidence. The court found that appellant violated the provisions of section 11910 of the Health and Safety Code, a lesser and included offense, and entered the order above referred to. This appeal followed. Preliminarily we observe that the juvenile court was required initially to consider and determine whether appellant was a person described by section 602 so as to establish its jurisdiction to adjudge him a ward of the court. (Welf. & Inst. Code, §§ 602, 701, 702.) “[F]or this purpose, any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court is admissible and may be received in evidence; however, proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by Section 602 . . . .” (Welf. & Inst. Code, § 701; — 681 — italics added.) In the instant case such jurisdiction rested on proof that appellant had violated the law by unlawfully possessing a restricted dangerous drug. If the evidence adduced to support this violation was not legally admissible, then the requisite jurisdictional finding, absent other competent evidence, cannot be upheld and the order of commitment based upon it must also fall. We turn first to the issue of the lawfulness of the search. The officers were entitled to detain and question appellant on circumstances constituting less than probable cause. (People v. Mickelson (1963) 59 Cal.2d 448 [30 Cal.Rptr. 18, 380 P.2d 658].) Probable cause was, however, a necessary prerequisite to an arrest or search. Until appellant’s flight the officers possessed insufficient facts to establish probable cause. The officers had heard a noise, but its origin was impossible to identify with any certainty. They possessed no knowledge that would have directly linked the sound with appellant. The youths’ story that the sound had come from another group which had exited the parking lot over the fence was not so implausible as to provide the additional quantum of suspicion necessary for probable cause. At the time the officers requested appellant to empty his pockets, therefore, they were not entitled to conduct a search. If that request constituted the initiation of a search, then appellant’s attempt to flee would not have justified the subsequent arrest and search. First, it is no crime in this state to nonviolently resist the unlawful action of police officers. (Pen. Code, §§ 148 and 834; People v. Curtis (1969) 70 Cal.2d 347, 354-356 [74 Cal.Rptr. 713, 450 P.2d 33].) Second, although flight combined with other facts may sometimes provide probable cause for arrest, where it is a direct response to unlawful police action it becomes “tainted” and cannot be so used. (Badillo v. Superior Court (1956) 46 Cal.2d 269, 273 [294 P.2d 23].) If, on the other hand, the officers’ actions are viewed as something other than the beginning of a search, as for example a permissible solicitation of consent to a search, appellant’s flight provided ample cause for his arrest and the resulting search. Flight under such circumstances would, in light of the other facts known to the officers, provide probable cause to believe appellant had violated the county fireworks ordinance. We are, therefore, called upon to characterize the conduct of the officers in requesting to see the contents of appellant’s pockets. In making this determination we are guided by People v. Stout (1967) 66 Cal.2d 184 [57 Cal.Rptr. 152, 424 P.2d 704]. In that case a police officer investigated a — 682 — report that the defendants had engaged in suspicious behavior involving a blue overnight bag. The officer approached the driver’s side of the defendants’ automobile and saw the bag on the back seat of the passenger’s side. After asking the defendants for information concerning the contents of the bag and receiving a noncommittal answer, the officer said, “Well, you wouldn’t mind then if I take a look in the bag?” When the officer started to walk toward the passenger’s side, the defendants drove off in a burst of speed. The officer gave chase and eventually apprehended them. His search of the bag revealed various items of contraband. We upheld the trial court’s finding that the search was lawful, even though we found the officer lacked probable cause to search the bag at the time he requested to see its contents. We held that “Whether there was a threat of an illegal search capable of being carried out was a question of fact to be determined by the court in the light of all the circumstances.” (Id. at p. 192.) In Stout we distinguished Gascon v. Superior Court (1959) 169 Cal.App.2d 356 [337 P.2d 201], in which the detained person fled and attempted to throw away incriminating evidence after the officers announced they intended to conduct a search. We stated, “unlike Gascon where the officers announced their intentions to search the defendant, [the officer] in the instant case merely voiced a request to look in the bag. There was no response from the suspects. At that point he started walking toward the passenger’s side of the car. Conceivably his request could have been met with a refusal upon his reaching his destination. At no time did he inform defendants that he was going to search the bag and we cannot say as a matter of law what was outwardly only a request, even when conjoined with his conduct, amounted to an announced intention to search.” (66 Cal.2d at p. 192.) We are of the opinion that the reasoning in Stout applies equally to the present case. The question “Okay, boys, why don’t you empty your pockets on the car?” is no more indicative of an intent to pursue an unlawful search and is no more inherently coercive in impact than the question “Well, you wouldn’t mind then if I take a look in the bag?” Indeed, the threat of a search appears to have been more imminent in Stout than in the present case, inasmuch as the officer in Stout coupled his communication with a movement in the direction of the object mentioned. Counsel for the state took the position in the juvenile court that the officers had merely asked the youths to consent to a search and had not announced or threatened an imminent nonconsensual search. The court did not expressly .rule on this factual question, but its acceptance of the state’s argument was implicit in its stated conclusion that the officers had — 683 — not exceeded the permissible scope of detention. Its determination of the implicit factual question finds substantial support in the record, and we are therefore bound by it. The evidence supporting the jurisdictional finding was thus lawfully obtained. Appellant’s second contention is that the court erred in reading the probation report before making its jurisdictional determination. In In re Gladys R. (1970) 1 Cal.3d 855 [83 Cal.Rptr. 671, 464 P.2d 127], we held that Welfare and Institutions Code sections 701, 702, and 706 require that a juvenile court determine whether the facts of the case support the jurisdiction of the court before considering the social study prepared by the probation officer with respect to disposition of the juvenile. Our holding in Gladys R., however, does not apply to the present case. The record does not show that the judge read the social study before making or announcing his jurisdictional decision. The record shows that he read only the “jurisdictional facts” portion of the probation report. Probation reports are commonly divided into a jurisdictional fact section and a social study section. (Thompson, Cal. Juvenile Court Deskbook (Cont.Ed.Bar 1972) § 8.9, p. 74.) The jurisdictional facts, unlike the social study, obviously contain “information relevant and material to the circumstances or acts which are alleged to bring [the minor] within the jurisdiction of the juvenile court.” Thus this portion of the report was admissible under Welfare and Institutions Code section 701. Appellant’s contention that the court’s use of the probation report denied him the right to confrontation of witnesses against him is likewise without merit. The judge stated that he found the report of the account appellant had told the probation officer inconsistent with the story to which he had testified in the juvenile proceedings. It appears this comparison was at best an insignificant factor in the court’s determination of jurisdiction or disposition. But even if it be assumed arguendo that the report of appellant’s statement had substantially influenced the court, there would be no denial of the right to confrontation. Although the probation officer did not testify, he was present at the hearing and could have been subjected to cross-examination regarding the assertions in his report. Counsel for appellant, however, made no effort to -do so. Furthermore, the United States Supreme Court has held in California v. Green (1970) 399 U.S. 149 [26 L.Ed.2d 489, 90 S.Ct. 1930], that the right to confrontation is not violated by the admission of a declarant’s prior out-of-court statements where the declarant testifies at trial and is subject to questioning regarding the prior statements. Appellant’s final contention is that the judgment must be reversed — 684 — because the court’s reliance on the written report of one of the arresting officers, who did not appear at the juvenile proceeding, denied him the right to confrontation. This argument must also fail. First, it clearly appears the court would have reached the same result had it not considered this report. The other arresting officer did testify at the proceeding, and his testimony alone would have been sufficient to support a judgment bringing appellant within the jurisdiction of the juvenile court. The only important conflict between the testimony of that officer and that of appellant and witnesses on his behalf concerned the location in which the unlawful drug was discovered by the officers. According to appellant’s account, the contraband was found in the pocket of the jacket he was wearing; according to the. testifying officer, it was discovered in his pants pocket. The written report corroborated the testimony of the officer. But even if appellant were correct and the drug had been found in the jacket, to reach a different judgment the court would have had to accept appellant’s implausible story that the jacket was not his and he had found it in the parking lot immediately before the police arrived. Since we cannot believe the court would have accepted this story, its consideration of the police report appears unnecessary to its decision. Appellant, therefore, suffered no reversible error. Second, the police report was introduced into evidence not by counsel for the state but by counsel for appellant. In an adult criminal proceeding, the introduction of such evidence by a defendant would bar him from later asserting error stemming from reliance on it. (Evid. Code, § 353.) Appellant contends that a different rule is established for juvenile proceedings by section 701 of the Welfare and Institutions Code. That section renders admissible in the jurisdictional portion of a juvenile proceeding “any matter or information relevant and material to the circumstances or acts which are alleged to bring him within the jurisdiction of the juvenile court.” Thus incompetent evidence, such as hearsay, may be received in evidence. The same section provides, however, that “proof beyond a reasonable doubt supported by evidence, legally admissible in the trial of criminal cases, must be adduced to support a finding that the minor is a person described by section 602.” Appellant contends the statutory requirement that a jurisdictional finding of the juvenile court be predicated on proof beyond a reasonable doubt supported by legally admissible evidence places a duty upon the court to exclude from consideration, on its own motion, any inadmissible evidence. The unique provision in section 701, allowing incompetent evidence to be admitted but preventing it from being used to support a judgment, was apparently designed to preserve the informality of the juvenile court proceeding by eliminating the necessity of objecting to the introduction of incompetent evidence. Thus, when the state introduces incompetent — 685 — evidence, the juvenile court does have a duty to exclude consideration of it as a ground for its jurisdictional judgment, and it must do this on its own motion. Section 701, however, does not alter the doctrine of invited error. When a minor introduces incompetent evidence, in order to avoid estoppel on the basis of invited error he must specify any portions of that evidence he does not desire to be used in support of the judgment. Thus, when the minor introduces an out-of-court statement without seeking to limit its use or to bring the declarant into court for examination, he is estopped to assert that - reliance on such evidence by the juvenile court denies him any right of confrontation. The judgment is affirmed. McComb, J., Burke, J., and Draper, J.,* concurred. Footnotes [1] Section 602 then provided: “Any person under the age of 18 years who violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime or who, after having been found by the juvenile court to be a person described by Section 601, fails to obey any lawful order of the juvenile court, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” [2] Alameda County Ordinance No. 3-22.0 makes it a misdemeanor to discharge fireworks in unincorporated areas of the county. [*] Assigned by the Chairman of the Judicial Council.