NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

THE COURT*

Following the denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1), appellant, C.L., a minor, admitted allegations that that he committed two counts of second degree burglary (Pen. Code, §§ 459, 460, subd. (b)). Thereafter, the juvenile court adjudged appellant a ward of the court, placed him on probation, ordered him to perform 150 hours of community service and committed him to the juvenile electronic monitoring program for a period not to exceed 60 days.

On appeal, appellant contends the court erred (1) in denying his suppression motion; and (2) in failing to consider whether it was necessary to limit the right of appellant's parents to make educational decisions for him and to appoint a responsible adult to make such decisions. We reject appellant's first contention, find merit in the second, remand for further proceedings, and otherwise affirm.

FACTS

City of Clovis Police Officer Drew Mosher was on patrol on December 6, 2010, when, at approximately 4:10 a.m., he received a radio report that officers were being dispatched to investigate at least one and possibly two "vehicle burglar[ies]" in progress in a certain residential area in Fresno.1 This area is bounded by four streets: Barstow, Shaw, Helm and Peach. Barstow forms the north border of the area and Shaw forms the south border. A vehicle can exit the area to the north on one of two streets intersecting with Barstow. On the south, there are two streets "next to each other," Helm and Sylmar, that intersect with Shaw. There are no exits or entrances to the neighborhood "meant for vehicular traffic" on the east and west, although "[t]here is one other way to get out of the neighborhood on foot."

"[T]here were a lot of officers in the area," and upon hearing the report, Officer Mosher broadcast a request that officers go to the area of Barstow and Peach, to watch for anyone traveling north out of the area. Officer Mosher drove to the area of Shaw and Sylmar on the south, "to watch that exit"; he arrived at approximately 4:20 a.m., "or ... shortly before that." From that vantage point he saw a pickup with a single occupant leave the area. Officer Mosher followed in his vehicle, looking in his rear-view mirror to determine if any other vehicles were leaving the area, but after 30 to 40 seconds, once he had determined the pickup's sole occupant was a "middle-aged male," he made a U-turn "so [he] could go back to [his] post as quickly as possible." From his experience in investigating vehicle burglaries—10 years as a police officer in which he had investigated approximately 300 to 450 such crimes—he knew that "single occupant vehicles with middle aged males" are "generally" not involved in vehicle burglaries.

While following the pickup, in his rear-view mirror Officer Mosher saw a Honda automobile "come out to Shaw from the area where [he] was previously posted." Inside the car were two males who "could have been late teens, early 20's," each wearing dark clothing. Hondas "are extremely, extremely common cars to be stolen," and "very often people will use a stolen car to commit vehicle burglaries." As he drove, Officer Mosher "ran the [Honda's] license plate" and determined that "[t]here was nothing to indicate it was a stolen vehicle[,]" and that it was registered to a female in Fresno, but "not the neighborhood from which it came." At that point, the officer activated his lights and stopped the car.

Appellant was the passenger in the car and the driver was X.R. The officer questioned both youths, and X.R. consented to a search of the car. Thereafter, Officer Mosher searched the car and found, inter alia, a GPS unit, a wallet, wire cutters and a vehicle stereo that was not mounted in the car. The officer "Mirandize[d]"2 appellant and X.R., after which X.R. stated "he knew the property was stolen and that [appellant] had ... stolen it," and appellant stated "it was his idea to go conduct vehicle burglaries, and he invited [X.R.] to come along."

Officer Mosher saw no vehicles in the area other than the pickup and the Honda.

DISCUSSION

Motion to Suppress Evidence

Appellant argues the vehicle stop constituted an unlawful detention and therefore the court erred in denying the motion to suppress evidence seized as a result of that detention. Specifically, appellant argues, the vehicle stop was not constitutionally reasonable because "there were not specific articulable facts that, considered in light of the totality of the circumstances, provided an objective manifestation that appellant and X.R. were involved in criminal activity." We disagree.

"The Fourth Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment, guarantees the right to be free of unreasonable searches and seizures. (U.S. Const., 4th Amend. ....)" (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) A "brief investigative stop[]" of a person, commonly referred to in the case law as a detention, is a seizure within the meaning of the Fourth Amendment. (People v. Souza (1994) 9 Cal.4th 224, 229 (Souza).) "Ordinary traffic stops are treated as ... detentions ...." (In re Raymond C. (2008) 45 Cal.4th 303, 307.)

"To justify ... [a] detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officer's subjective state of mind at the time of the stop or detention." (People v. Conway (1994) 25 Cal.App.4th 385, 388.) "Accordingly, the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity." (Id. at p. 389.) "The corollary to this rule is that an investigative stop or detention predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in good faith." (Ibid.)

"The touchstone of our analysis under the Fourth Amendment is always `the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109.)

"Reasonable suspicion cannot be reduced to a neat set of legal rules, but must be determined by looking to `the totality of the circumstances—the whole picture.'" (U.S. v. Jordan (5th Cir. 2000) 232 F.3d 447, 449, quoting United States v. Sokolow (1989) 490 U.S. 1, 7-8.) Under this standard, a detention requires only a "minimal level of objective justification" (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow)), and an officer may initiate one "based not on certainty, but on the need to `check out' a reasonable suspicion" (United States v. Clark (D.C. Cir. 1994) 24 F.3d 299, 303 (Clark)). Moreover, "we `judge the officer's conduct in light of common sense and ordinary human experience,' [citation], and we accord deference to an officer's ability to distinguish between innocent and suspicious actions." (U.S. v. Williams (10th Cir. 2001) 271 F.3d 1262, 1268.) "[W]hen circumstances are `"consistent with criminal activity," they permit—even demand—an investigation ....' [Citation.] A different result is not warranted merely because circumstances known to an officer may also be "`consistent with lawful activity."' [Citation.] ... `The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct. Indeed, the principal function of [police] investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal ....'" (Souza, supra, 9 Cal.4th at p. 233.)

In reviewing the denial of a suppression motion, "We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. Glaser (1995) 11 Cal.4th 354, 362.)

With these principles in mind we turn to an examination of the facts in the instant case. Within minutes of learning that police officers had been dispatched to investigate a report of one or more vehicle burglaries in progress in a particular area, Officer Mosher saw the Honda leaving the area of the reported criminal activity. Moreover, from his experience, the officer knew that stolen cars are often used in vehicle burglaries and that Hondas "are extremely, extremely common cars to be stolen," and he also knew that the occupants of the car were two males and the car was registered to a female. Although a check of the license plate number provided nothing to suggest the car was stolen, on the facts available to the officer at that time, the possibility that the car had been recently stolen, but not yet reported as such, could not be ruled out.

Thus, Officer Mosher saw a car of the kind commonly used in vehicle burglaries leaving an area where, he had reasons to believe, one or more such crimes had occurred just moments before. Admittedly, these factors are consistent with the absence of criminal activity. This point notwithstanding, when we examine the totality of the circumstances and apply our independent judgment, we conclude that Officer Mosher was faced with an ambiguous situation which provided the "minimum level of objective justification" (Wardlow, supra, 528 U.S. at p. 123) necessary to allow the police to stop appellant's vehicle and "`check out'" (Clark, supra, 24 F.3d at p. 303) his suspicion that the occupants of the Honda had recently been involved in one or more car burglaries. Therefore, the challenged vehicle stop did not violate appellant's Fourth Amendment rights.

California Rules of Court, Rules 5.790 and 5.6503

Appellant contends the court erred in failing to consider, under rules 5.790 and 5.650, whether (1) to limit the right of appellant's parents to make educational decisions for him; and (2) to appoint a responsible adult to make such decisions for appellant.

Legal Background

Rule 5.790(f)(5) provides that at the disposition hearing: "The court must consider whether it is necessary to limit the right of the parent or guardian to make educational decisions for the child. If the court limits this right, it must follow the procedures stated in rule 5.650."

The rule 5.650 procedures that apply when the court limits the right of the parent or guardian to make educational decisions include the following: The court must either appoint a responsible adult as "educational representative for the child" (ER) (rule 5.650(b)(1)) or order a "permanent plan for the child" and make certain findings (rule 5.650(b)(2)). Alternatively, if the court makes neither of these orders, it must make a finding that "[t]he court cannot identify a responsible adult to serve as the child's educational representative" (rule 5.650(b)(3)) and determine whether that the child "is or may be eligible" or is "not eligible" for "special education services." (Rule 5.650(b)(3)(A) & (B).) If the court makes a finding of non-eligibility for special education services, it must further find that "the court will, with the input of any interested person, make educational decisions for the child." (Ibid.) Under certain circumstances, if the court limits the rights of the parent or guardian to make educational decisions, the court must "refer the child to the responsible local educational agency for prompt appointment of a surrogate parent under Government Code section 7579.5." (Rule 5.650(d).)

An ER "acts as the [child's representative] in all educational matters" (rule 5.650(f)(3)) and "is responsible for representing the child in the identification, evaluation, and educational placement of the child and with the provision of the child's free, appropriate public education" (rule 5.650(f)(1)). The ER's term of service does not extend beyond the child's eighteenth birthday, "unless the child chooses not to make his or her own educational decisions or is deemed incompetent by the court ...." (Rule 5.650(g)(1)(B).)

Factual Background4

Appellant was 16 years old at the time of the disposition hearing in January 2011. He "he has not attended a mainstream school since he was in the second grade, and then it was for a very short time." He is "completely illiterate."

Appellant has never met his father and has spoken to him only once, by telephone, when appellant was 13 years old. Appellant's father lives in Mexico and his address and telephone number are unknown. Appellant's mother is a transient and is mentally ill. Appellant lived with his mother until approximately three years ago, at which time he went to live with an aunt. Approximately three months later, appellant and his three siblings "were asked to leave." At that point, appellant went to live with Monica Sanchez, who told the probation officer she is married to appellant's oldest brother, from whom she is separated. She testified at the disposition hearing that she had recently turned 21 years of age.

Sanchez further told the probation officer the following. Appellant's sister lives with her (the sister's) mother, and appellant and an older brother live with Sanchez. Sanchez is not appellant's legal guardian, but appellant's mother "has provided her with written releases so she could get [appellant] enrolled in school." Sanchez attempted to enroll appellant and his brother in school, "but ran into difficulties, as the boys were so far behind that the school district was unable to place them into any classes." Sanchez was provided with "home school materials," apparently by the school district, "but she lacked the expertise to make any real progress with [appellant] and his brother." Appellant's mother "has no real interest in the boys" and has told Sanchez she will help Sanchez "pursue legal guardianship when the time comes."

The probation officer stated he was concerned about appellant's "substantial education issues," and opined: "[Sanchez] has attempted to address the minor's educational issues, but lacks the expertise to make any real progress. The minor is clearly in desperate need of some kind of intervention in order to assess the minor's substantial educational needs and to work out a plan to meet those needs."

The Disposition Hearing

At the disposition hearing, the discussion of issues relating to appellant's educational needs consisted of the following.

At that point the court asked defense counsel and the probation officer for "any suggestions[.]" The probation officer responded: "I would think he has to go with Fresno Unified School District, contacting them, finding out what type of programs they have with minors in this type of situation."

The court stated: "I'm sure he's not the only one. [¶] ... [¶] They've dealt with this problem in the past. I just want to recommend — encourage you, ma'am, to do everything you can. I'm sure you're doing it, to get him to where he can read and write. He's going to be at such a big disadvantage."

The court made various orders, including that appellant "complete an educational assessment."

Analysis

As indicated above, appellant first argues that the court erred by failing to consider, under rule 5.790(f)(5), whether it was necessary to limit the right of appellant's parents or guardian to make educational decisions for appellant. The People, based on the discussion of appellant's educational needs at the disposition hearing, quoted above, and the court's order that appellant complete an educational assessment, counter that "the juvenile court properly considered whether it is necessary to limit the right of the parent or guardian to make educational decisions for the child and determined that no such limitation was necessary." Therefore, the People assert, the court complied with the requirements of rule 5.790(f)(5). We believe appellant has the better of the argument.

The court's remarks at the disposition hearing establish that the court was deeply concerned with appellant's inability to read and write at age 16, and that the court recognized that appellant's educational needs were not being met. However, in our view, neither the court's remarks nor anything else in the record establish that an order limiting the right of appellant's parents to make educational decisions for appellant was unnecessary or, indeed, that the court was aware that it was required by rule 5.790(f)(5) to consider whether to make such an order.

First, the RPO makes no mention of the court's duty under rule 5.790(f)(5) to consider whether to make an order limiting the right of appellant's parents to make educational decisions for appellant, nor did the court, counsel or probation officer mention the question during the extensive discussion of appellant's educational needs quoted above, or at any other time, at the disposition hearing. In addition, the record indicates appellant has no non-parent legal guardian; his father, who during the course of his son's life had almost no contact with appellant, was clearly not in a position to oversee his son's education; and appellant's mother had not even enrolled appellant in school since appellant was in the second grade, and apparently wanted virtually nothing to do with him. Insofar as the record reveals, appellant is getting no help in any area of his life, including his education, from his parents.

Moreover, as both the probation officer and court recognized, appellant is in dire need of educational services and that need is not being met, despite the best efforts of appellant's sister-in-law. The only resources she has been able to identify and gain access to are an on-line educational program and home study materials provided by the school district. It seems highly unlikely that the only help the school district could provide to a 16-year-old illiterate student would be to provide an untrained 21-year-old relative with home schooling materials. The probation officer suggested that some other type of "program" might be available. We mention this not to criticize Ms. Sanchez, who is to be commended for her willingness to take on the difficult challenge presented by appellant's educational problems, for not doing more to help appellant with his educational needs, either through the school district or some other avenue, but to point out that despite the best efforts of a conscientious caregiver, and the possible availability of other resources, appellant's educational needs remain unmet. On this record the indications are so strong that appellant's parents are doing nothing to help him meet his educational needs, and that those needs are so great, that it is virtually inconceivable that the court would have failed to make an order limiting the right of appellant's parents to make educational decisions for appellant had the court been aware of its discretion to do so. Accordingly, we conclude the court was not aware of the mandate under rule 5.790(f)(5).

The People also argue that "appellant's counsel did not raise the issue as to the possible need for an educational representative" at any point below, and that "[t]hat failure forfeited this claim." Appellant disagrees. He bases this claim on In re Sean W. (2005) 127 Cal.App.4th 1177. There, the appellate court held that the claim that the juvenile court had failed to exercise its statutory discretion in setting the maximum term of physical confinement for a minor committed to the California Youth Authority was not forfeited by failing to raise the claim below. The court stated: `"Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires a reversal...." (Id. at p. 1182.) Again, we agree with appellant.

And in any event, it is well established that even when a party has forfeited a right to appellate review by failing to preserve a claim in the trial court, an appellate court may still review the claim as an exercise of its discretion. (People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; People v. Johnson (2004) 119 Cal.App.4th 976, 984 ["`[T]he fact that a party, by failing to raise an issue below, may forfeit the right to raise the issue on appeal does not mean that an appellate court is precluded from considering the issue'" (italics omitted).]) This is especially true where forfeiture may lead to a subsequent filing of a petition for a writ of habeas corpus asserting ineffective assistance of counsel based on trial counsel's failure to preserve the issue. (People v. Crittenden (1994) 9 Cal.4th 83, 160, fn. 18.) Even if the forfeiture rule applies here, we would, in the exercise of our discretion and as we have done here, address appellant's claim on the merits.

To summarize, the court failed to exercise its discretion to consider whether it was necessary to make an order under rule 5.790(f)(5) limiting the right of appellant's parent(s) to make educational decisions for appellant. We will remand the matter with directions that the court do so, and that if the court thereafter makes such an order, that the court follow the procedures in rule 5.650.5

DISPOSITION

The matter is remanded to the juvenile court for the limited purpose of considering whether it is necessary to make an order limiting the right of appellant's parent(s) to make educational decisions for him. If the court makes such an order, the court shall follow the procedures in rule 5.650. In all other respects the judgment is affirmed.