Filed 1/22/15 In re Christian R. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


In re CHRISTIAN R., a Person Coming
Under the Juvenile Court Law.

THE PEOPLE,
                                                                       G048987
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL042694)
         v.
                                                                       OPINION
CHRISTIAN R.,

     Defendant and Appellant.



                   Appeal from an order of the Superior Court of Orange County,
Richard Y. Lee, Judge. Affirmed.
                   Janice R. Mazur, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and
Stacy Tyler, Deputy Attorneys General, for Plaintiff and Respondent.
                                             *               *               *
                                              1.
                                       Introduction
              A Santa Ana police officer, serving as the school resource officer at Santa
Ana High School, searched the backpack of student Christian R. (the Minor) and found
inside a black ink permanent marker and “slap tags” (adhesive stickers used for graffiti).
After denying the Minor’s motion to suppress this evidence, the juvenile court found to
be true beyond a reasonable doubt allegations that the Minor was in possession of graffiti
tools in violation of Penal Code section 594.2, subdivision (a) and declared the Minor to
be a ward of the court.
              The Minor appeals from the dispositional order. He argues the juvenile
court erred by denying his motion to suppress because the police officer did not have
reasonable suspicion to search his backpack. We disagree and affirm.


                                              2.
                                            Facts
              On February 22, 2012, Edward Rios, a substitute district safety officer at
Santa Ana High School, noticed “some type of graffiti” on the Minor’s backpack. Rios
believed he had seen the letters “D-O-E” on the backpack and remembered seeing graffiti
or “slap tags” around the school campus with the words “DOE” or “DOE KRU.” A slap
tag is a sticker or adhesive label that “taggers” use to quickly put up graffiti. Rios took
photographs of the graffiti or slap tags around campus, which, he believed, resembled the
lettering on the Minor’s backpack.
              Rios escorted the Minor to the office of Santa Ana Police Officer Anne
Pliska, the school resource officer. Pliska noticed the Minor’s backpack had lettering on
it which was similar in style to graffiti she had seen on school grounds. The school has a
policy against defacing property. Graffiti is not tolerated, and school policy calls for
searching a student’s backpack if it has graffiti-style markings on it.

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               The school’s assistant principal, Thomas Hummel, who was present in
Pliska’s office, instructed Pliska to search the Minor’s backpack. She conducted a search
and, inside the backpack, found a black ink permanent marker and slap tags.


                                             3.
                                    Procedural History
               In June 2012, a two-count petition was filed to declare the Minor a ward of
the court. Count 1 alleged possession of graffiti tools, and count 2 alleged possession of
tobacco in violation of Penal Code section 308, subdivision (b). The juvenile court
ordered the Minor placed in a program of informal probation under Welfare and
Institutions Code section 654 for a period of six months. After the Minor failed to
complete the ordered community service, the court terminated informal probation and set
the matter for trial.
               In August 2013, the Minor moved to suppress the evidence seized from his
backpack during the search conducted by Pliska. After hearing testimony from Rios,
Pliska, Hummel, and the Minor, the juvenile court denied the motion to suppress. The
court denied the Minor’s motion under Welfare and Institutions Code section 701.1, to
dismiss count 1, and granted the motion to dismiss count 2.
               The juvenile court found the allegations of count 1 to be true beyond a
reasonable doubt and ordered the Minor declared a ward of the court under Welfare and
Institutions Code section 602. The Minor timely appealed from the dispositional order.


                                             4.
                                    Standard of Review
               “‘The standard of appellate review of a trial court’s ruling on a motion to
suppress is well established. We defer to the trial court’s factual findings, express or
implied, where supported by substantial evidence. In determining whether, on the facts

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so found, the search or seizure was reasonable under the Fourth Amendment, we exercise
our independent judgment.’” (People v. Maury (2003) 30 Cal.4th 342, 384.) In
considering a motion to suppress evidence, the trial court “is vested with the power to
judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the
evidence and draw factual inferences in deciding whether a search is constitutionally
unreasonable. [Citation.]” (People v. Woods (1999) 21 Cal.4th 668, 673.)


                                              5.
                                         Discussion
              The prohibition on unreasonable searches and seizures by the Fourth
Amendment to the United States Constitution applies to searches of students conducted
by public school officials. (New Jersey v. T .L .O. (1985) 469 U.S. 325, 333.) The
student’s interest in privacy must be weighed against the “substantial interest” of public
school officials “in maintaining discipline in the classroom and on school grounds.” (Id.
at p. 339.) Thus, the search of a student “does not require strict adherence to the
requirement that searches be based on probable cause to believe that the subject of the
search has violated or is violating the law.” (Id. at p. 341.)
              The United States Supreme Court standard is reasonableness under the
circumstances: “Under ordinary circumstances, a search of a student by a teacher or
other school official will be ‘justified at its inception’ when there are reasonable grounds
for suspecting that the search will turn up evidence that the student has violated or is
violating either the law or the rules of the school. Such a search will be permissible in its
scope when the measures adopted are reasonably related to the objectives of the search
and not excessively intrusive in light of the age and sex of the student and the nature of
the infraction.” (New Jersey v. T. L. O., supra, 469 U.S. at pp. 341-342, fns. omitted.)
              The California Supreme Court has expressed an “articulable facts”
standard: “[S]earches of students by public school officials must be based on a

                                              4
reasonable suspicion that the student or students to be searched have engaged, or are
engaging, in a proscribed activity (that is, a violation of a school rule or regulation, or a
criminal statute). There must be articulable facts supporting that reasonable suspicion.
. . . [¶] In sum, this standard requires articulable facts, together with rational inferences
from those facts, warranting an objectively reasonable suspicion that the student or
students to be searched are violating or have violated a rule, regulation, or statute.” (In re
                                         1
William G. (1985) 40 Cal.3d 550, 564.)
              After considering the evidence and counsel’s argument, the juvenile court
found, “in looking at all of the witness’ testimonies together, I think petitioner has done
enough to demonstrate that there was a reasonable basis within the confines of the [New
Jersey v. T. L. O.] decision for the search of the backpack.” Substantial evidence
supported the juvenile court’s finding. The evidence established there were reasonable
grounds for suspecting a search of the Minor’s backpack would turn up evidence that the
Minor had violated the law and school rules. Rios testified he noticed the Minor’s
backpack had lettering similar to graffiti he had seen on campus, recalled the backpack
had the letters “D-O-E” on it, and took photographs of graffiti or slap tags with the words
“DOE” or “DOE KRU” from around campus. Those photographs were received in
evidence. Hummel testified that graffiti and slap tags were a common problem and




 1
    Since the passage of Proposition 8 and its amendment of article I, section 28,
subdivision (d), of the state Constitution, state and federal claims regarding the
admissibility of evidence obtained by an allegedly improper search or seizure are
measured under the same standard. (People v. Camacho (2000) 23 Cal.4th 824, 830.)
Our state Constitution thus forbids the courts to order the exclusion of evidence at trial as
a remedy for an unreasonable search and seizure unless that remedy is required by the
federal Constitution as interpreted by the United States Supreme Court. (People v.
McKay (2002) 27 Cal.4th 601, 608.) To the extent In re William G., supra, 40 Cal.3d
550, would require exclusion and New Jersey v. T. L .O. would not, we must follow the
latter case.

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against school policy. Pliska noticed the Minor’s backpack had lettering on it that was
similar in style to graffiti she had seen on school grounds. We conclude those facts, and
the rational inferences drawn from them, provided “reasonable grounds for suspecting”
(New Jersey v. T. L. O., supra, 469 U.S. at p. 342), or an “objectively reasonable
suspicion” (In re William G., supra, 40 Cal.3d at p. 564), for believing the Minor’s
backpack might have graffiti tools inside.
               The Minor argues that Pliska’s testimony does not support a finding of an
articulable suspicion because, during cross-examination, Pliska was not able to describe
the Minor’s backpack or the lettering on it. She testified she could not recall “what the
graffiti was . . . [¶] . . . [¶] . . . that was on his backpack.” Pliska’s testimony that the
lettering on the Minor’s backpack was in a style similar to graffiti she had seen on
campus was sufficient. The Minor’s challenges to Pliska’s testimony go to credibility
and weight. The juvenile court found Pliska, as well as Rios and Hummel, to be candid
and credible witnesses.
               The Minor also argues the lettering on his own backpack did not constitute
graffiti under Penal Code section 594, subdivision (e), and no school policy prohibits
students from writing on their own property. The issue is not whether the writing on the
Minor’s backpack constituted a crime in itself but whether there were reasonable grounds
for suspecting that the search would turn up evidence that the student had violated or was
violating either the law or school rules.
               The juvenile court also found the search of the Minor’s backpack was
“conducted in a manner that was reasonably related in scope to the circumstances which
justify the interference.” Substantial evidence supported that finding. The search was
conducted in Pliska’s office with a school official present. Only the Minor’s backpack
was searched.




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                                        6.
                                   Disposition
          The dispositional order is affirmed.




                                             FYBEL, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



THOMPSON, J.




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