In re Alexander M.

Filed 3/14/07 In re Alexander M. CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from an order of the Superior Court of Los Angeles County. Gary Polinsky, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21. ) Affirmed as modified.

Gerald Peters, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Bill Lockyer, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Stephanie C. Brenan and Ryan B. McCarroll, Deputy Attorneys General, for Plaintiff and Respondent.

Appellant Alexander M. contends the juvenile court erred in denying his motion to suppress evidence, and challenges three probation conditions as vague and overbroad. We modify the conditions and affirm the judgment as modified.

RELEVANT PROCEDURAL BACKGROUND

On November 4, 2005, the District Attorney of Los Angeles County filed a petition alleging that appellant was a person described by Welfare and Institutions Code section 602. Counts 1 and 2 of the petition charged appellant with possession of a firearm by a minor (Pen. Code, 12101, subd. (a)(1)), and possession of live ammunition by a minor (Pen. Code,  12101, subd. (b)(1)). Appellant denied the allegations in the petition.

Appellant subsequently filed a motion to suppress evidence. (Welf. & Inst. Code,  700.1.) At the adjudication and dispositional hearing on December 14, 2005, the juvenile court denied the motion, sustained the petition as to all counts, and found appellant to be a person described by Welfare and Institutions Code section 602. It committed appellant to the Camp Community Placement Program for 90 days, set the maximum term of confinement at three years and six months, and imposed conditions on his probation. This appeal followed.

DISCUSSION

Appellant contends (1) the juvenile court erred in denying his motion to suppress evidence, and (2) imposed three improper probation conditions.

A. Motion to Suppress

Appellant contends the juvenile court incorrectly ruled that the pat‑down search of appellant was proper under the circumstances. We disagree.

1. Governing Principles

Under Welfare and Institutions Code section 700.1, a minor may move to suppress evidence obtained as a result of an unlawful search or seizure. The California Constitution bars the exclusion of evidence obtained as a result of an unreasonable search or seizure unless this remedy is required by the federal Constitution. (Cal. Const. art. I,  28, subd. (d); People v. Souza (1994) 9 Cal.4th 224, 232 (Souza).) The Fourth Amendment to the United States Constitution prohibits seizures of persons, including brief investigative stops, when they are unreasonable. (Id. at p. 229.)

At issue here is the propriety of appellants detention by police officers and a subsequent search for weapons that disclosed that appellant was carrying a firearm. In Terry v. Ohio (1968) 392 U.S. 1, 27-31, the United States Supreme Court held that in some circumstances, police officers may conduct a limited search of an individual for weapons while investigating suspicious activity, even though they lack grounds to arrest the individual. There, an officer saw three men talking and moving back and forth in front of a store. (Id. at pp. 5-8.) Concerned that they were planning a robbery, he stopped them and patted them down for weapons. (Id. at p. 7.) The court in Terry distinguished the brief investigative stop and weapons search from an arrest, and held that the officer properly frisked the men for his own safety while he investigated their conduct. (Id. at pp. 27-31.)

Generally, [a] detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity. (Souza, supra, 9 Cal.4th at p. 231.) Once a person is properly detained, an officer may conduct a weapons search only when there is reason to believe the search is necessary for the officers protection and the protection of nearby persons. (Terryv.Ohio, supra, 392 U.S. at p. 27.) Accordingly, to justify the search, [t]he officer must be able to point to specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous. [Citations.] (People v. Dickey (1994) 21 Cal.App.4th 952, 956.)

On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial courts ruling. [Citation.] We must uphold those express or implied findings of fact by the trial court which are supported by substantial evidence and independently determine whether the facts support the courts legal conclusions. (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738-1739, 38 Cal.Rptr.2d 902.)

2. Evidence Presented at the Hearing on the Motion to Suppress

The sole witness at the hearing on appellants motion was Los Angeles Police Department Officer Timothy Colson, who testified as follows: He had been working the gang enforcement detail for three years. A gang known as the Eleven-Deuce Broadway Crips controls the area around 110th Street and Spring in Los Angeles. Their gang color is blue. Because their primary street is 112th Street, they regard November 2 -- that, is, 11/2 -- as their hood day, which is akin to a birthday celebration for their gang. On hood day, gang members generally dress down -- wear gang colors and symbols -- and there is a good deal of criminal activity.

Colson indicated that police officers had reason to believe that members of the Eleven-Deuce Broadway Crips might be armed on November 2, 2005. Hood day is generally a big party day, and gang members who attend parties on that day are frequently armed. Moreover, in November 2005, the Eleven-Deuce Broadway Crips were engaged in a violent feud with another gang known as the Eastside Hustlers. Within a week prior to November 2, 2005, members of the Eleven-Deuce Broadway Crips had shot at Eastside Hustlers. There was thus a good chance that Eleven-Deuce Broadway Crips who dressed down on their hood day were armed because they wanted to protect themselves from the Eastside Hustlers and other gangs.

At about 2:40 p.m. on November 2, 2005, Colson was uniformed and driving alone in a marked patrol car behind another police car containing two uniformed officers. As he drove westbound on 110th Street near Spring, he saw appellant and two other males leaning against a fence approximately 60 to 70 feet away. All three were wearing blue colored clothes. Appellant wore blue pants and shoes, and a blue cap marked B112G. According to Colson, this marking signified the Eleven-Deuce Broadway Gangsters.

As Colson drove forward, he saw appellant look at his companions and say something to them. The three males then walked westbound, away from the moving police cars. When the cars came up to them, they turned and lifted their shirts to expose their waistband area. Regarding this gesture, Colson testified that gangsters sometimes raise their shirts and spin around to try to persuade officers driving by that they do not have any firearms in their waistbands and that they are unarmed. According to Colson, appellant and his companions raised their shirts to a substantial height, but did not turn around as they did so.

The officers stopped their vehicles and approached appellant and his companions. As Colson neared appellant, he saw that appellant seemed nervous and was looking around. Believing appellant was about to run away, Colson stepped in his path. Colson then asked appellant to place his hands on his head and turn around. As Colson moved to pat down appellants rear waistband area, he saw the butt of a gun sticking out of appellants rear pocket. Colson determined the gun was loaded and appeared to be operable.

3. Analysis

Following Colsons testimony, the trial court denied the motion to suppress, stating: I think the minor and his associates as they were dressed gave cause . . .  to draw [the officers] attention and their actions enhanced that attention. The officers had a right to make inquiry and to determine why this action was going on  . . . . We see no error in this ruling. 

The parties do not dispute that Colson detained appellant at some point between the time that he blocked appellants path and the time that he ordered appellant to turn around. Because Colson gained no new information during this brief interval, the key issue is whether the facts available to Colson before he blocked appellants path constitute an adequate basis for the detention and weapons search. (Florida v. J. L. (2000) 529 U.S. 266, 271.)

Our inquiry into this issue involves two elements: First, the assessment must be based upon all the circumstances. The analysis proceeds with various objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. From these data, a trained officer draws inferences and makes deductions -- inferences and deductions that might well elude an untrained person. [] . . . [] The second element . . . is . . . that the process just described must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. (United States v. Cortez (1981) 449 U.S. 411, 418.)

Whether the suspicion of wrongdoing is properly supported by the available facts is measured by an objective standard, that is, by reference to a reasonable officer, and not by the particular officers subjective state of mind at the time of the stop or detention. (People v. Conway (1994) 25 Cal.App.4th 385, 388.) Nonetheless, the inferences from conduct required to establish a reasonable suspicion ultimately rest on commonsense judgment about human behavior, rather than on scientific studies. (Illinois v. Wardlow (2000) 528 U.S. 119, 124 (Wardlow).)

Generally, obvious attempts to evade officers can support a reasonable suspicion. (United States v. Brignoni-Ponce (1975) 422 U.S. 873, 884-885.) As the United States Supreme Court explained in Wardlow, although a person may decline to speak to police officers and go about his business without providing grounds for a detention, nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. (Wardlow, supra, 528 U.S. at pp. 124-125.) In Wardlow, officers were driving in a caravan of vehicles through an area known for heavy narcotics trafficking when they saw the defendant standing near a building holding an opaque bag. (Id. at pp. 121-122.) Upon seeing the officers, the defendant fled. (Ibid.) The Supreme Court held that the defendants unprovoked flight, triggered by his observation of the police caravan, justified the officers decision to detain him. (Id. at pp. 124-125.)

Similarly, our Supreme Court concluded in Souza that the manner in which a person avoids police contact can be considered by officers and courts assessing the propriety of a detention. (Souza, supra, 9 Cal.4th at p. 234.) There, an officer on night patrol in a high-crime area encountered the defendant speaking to the occupants of a parked car. (Id. at p. 240.) As the officer approached, the defendant fled, and the cars occupants ducked down. (Ibid.) In finding the officer had reasonable suspicion to detain and frisk the defendant, the court in Souza explained: Any temporary detention includes factors that, considered together, may suggest either criminal or innocent behavior to trained police officers. No single fact -- for instance, flight from approaching police -- can be indicative in all detention cases of involvement in criminal conduct. Time, locality, lighting conditions, and an areas reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity. (Id. at p. 239.)

Evasive conduct other than unprovoked flight can support a reasonable suspicion. In In re Stephen L. (1984) 162 Cal.App.3d 257, two officers in a gang-dominated area entered a park known for violent crime, and saw six gang members standing in a group near fresh graffiti that was no more than one or two days old. (In re Stephen L., supra, 162 Cal.App.3d at pp. 259-260.) Upon noticing the officers, the gang members split into two groups, each of which began to leave the park in a different direction. The court in Stephen L. held that under the circumstances, the officers were justified in detaining the gang members and patting them down for weapons in investigating the graffiti vandalism. (Id. at pp. 260-261.)

Out-of-state case authority corroborates the proposition that conduct intended to avert police contact can support a detention, even though it does not involve outright flight. In State v. Williamson (1973) 58 Wis.2d 514, 516-518 [206 N.W.2d 613, 614-615], the driver of a car pulled over to the curb when he first noticed a police car behind him. Shortly thereafter, he resumed driving, but immediately pulled over to the curb again when he saw the police car approaching from a different direction. (Ibid.) The Wisconsin Supreme Court concluded that this conduct provided officers with an adequate basis to detain the driver to determine why he had driven the car as he had. (Id. at p. 518.)

Here, Officer Colson had good reason to believe that gang members dressed like appellant and his companions were likely to be armed. It was hood day -- a day known for criminal activity -- and appellant was dressed down to overtly display his gang affiliation. There had been a recent violent encounter between appellants gang and the Eastside Hustlers. Moreover, upon noticing Colson and the other officers, appellant and his companions walked away, and then spontaneously appeared to attempt to convey that they were not carrying weapons, but failed to spin around and display their rear waistbands. In our view, appellants manner of dress and evasive behavior intended to avert police contact, coupled with his anxiety as Colson approached, supported a reasonable suspicion that he concealed an illegal firearm. Accordingly, Colson was justified in detaining appellant and examining him for weapons.

Appellant contends that Colson lacked a basis for detaining him. His reliance on People v. Hester (2004) 119 Cal.App.4th 376, Brown v. Texas (1979) 443 U.S. 47, and People v. Roth (1990) 219 Cal.App.3d 211 is misplaced, as these cases are factually distinguishable.

In People v. Hester, supra, 119 Cal.App.4th at pages 382 to 383, several members of the Country Boy Crips gang were victims of a drive-by shooting. Approximately six hours later, officers stopped three cars they believed had been driving together on the freeway, discovered that one of the cars contained a loaded handgun, and arrested its four occupants, including the defendant and an individual named Anderson. (People v. Hester, supra, 119 Cal.App.4th at pp. 382-383, 389.) When the defendant challenged his detention, the officers explained that they had recognized Anderson as an associate of the East Side Crips, a gang that might be responsible for the drive-by shooting. (Id. at pp. 387-391.) They inferred that the occupants of all three cars were (1) members of the East Side Crips, and (2) armed to protect themselves from retaliation for the shooting earlier that evening. (Ibid.) The court in Hester concluded that the meager facts available to the officers did not support these inferences, and thus the officers lacked a legitimate basis to stop the vehicles and detain their occupants. (Ibid.) As the court observed, Reducing this stop to its essence, [the officers] acted because a passenger in the vehicle was a member of the East Side Crips. Mere membership in a criminal street gang, without additional facts supporting an inference of criminal activity, does not permit a detention. (Id. at p. 392.)

Here, unlike the officers in Hester, Colson had an objective and particularized basis for detaining appellant. As we have explained, appellant was dressed down, that is, wearing clothes marking him as a gang member. There had been sufficient time for news of the recent gang violence to spread, and dressed down gang members would have had additional reasons to be armed on the date in question. These facts, coupled with appellants evasive conduct and anxiety in the presence of the police, raised the reasonable suspicion that he was armed.

The remaining cases cited by appellant stand for the proposition that a persons presence in an area does not support a detention, absent other pertinent facts. In Brown v. Texas, supra, 443 U.S. at page 48 to 52, the United States Supreme Court held that a man was improperly detained after police saw him walk away from another man in an alley located in a district known for drug trafficking. Similarly, in People v. Roth, supra, 219 Cal.App.3d at pages 213 to 214, officers detained the defendant in a deserted shopping center parking lot at night. At the time, the defendant was examining dumpsters for junk. (Ibid.) The court in Roth concluded that his mere presence in the parking lot did not raise a reasonable suspicion of wrongdoing. (Id. at p. 215.) In contrast with Brown and Roth, appellants detention rested on facts over and above his location.

Appellant also contends that he was improperly searched for weapons after he was detained. He relies on People v. Dickey, supra, 21 Cal.App.4th 952, People v. Medina (2003) 110 Cal.App.4th 171, Santos v. Superior Court (1984) 154 Cal.App.3d 1178, and In re Marcellus L. (1991) 229 Cal.App.3d 134. We are not persuaded. In each of these cases, the officer conducting the weapons search had no reason to think the person in question was likely to be armed and dangerous. (People v. Dickey, supra, at pp. 955-956 [officer knew only that driver searched could not present identification]; Peoplev. Medina, supra, at p. 174 [officer could point to nothing specific suggesting driver was armed]; Santos v. Superior Court, supra, at pp. 1180-1184 [officers knew only that person searched had met with two others in a deserted parking lot at night, engaged in an exchange, and failed to present identification to officers upon leaving lot]; In re Marcellus L., supra, at p. 138 [officer knew only that minor searched had been sitting in front of house at which drugs had been sold, and had no reason to believe that minor was armed or dangerous].) In contrast, here, as we have explained, numerous factors supported Officer Colsons suspicion that appellant was armed. In sum, the juvenile court did not err in denying appellants motion to suppress.

B. Probation Conditions

Appellant challenges three conditions of his probation as unconstitutionally vague and overbroad. As recorded on the preprinted form for probation conditions attached to the pertinent minute order, condition No. 15 states: Do not associate with co-minors[,] anyone disapproved of by parents[,] Probation Officer . . . .; condition No. 16 states: Do not have any dangerous or deadly weapon in your possession, nor remain in the presence of any unlawfully armed person; and condition No. 21 states: Do not use or possess narcotics, controlled substances, poisons or related paraphernalia; stay away from places where users congregate. (Italics added.) He contends that the italicized portions of these conditions are infirm, absent a knowledge requirement. In addition, he contends that condition No. 15 does not define the term co-minors, and does not specify whether he must avoid all co-minors, or merely those disapproved by his parents or probation officer.

1. Forfeiture

At the threshold, we address whether appellant has forfeited his contention. Appellant concedes that he did not object to these conditions before the juvenile court, but argues that he has not forfeited his contention on appeal because it presents a pure question of law that can be resolved without regard to the sentencing record. We agree.

There is a division of opinion whether a challenge to a probation condition is forfeited under the circumstances described above. (In re Justin S. (2001) 93 Cal.App.4th 811, 814-815 (Justin S.) [no forfeiture]; People v. Gardineer (2000) 79 Cal.App.4th 148, 151-152 [forfeiture]; In re Josue S. (1999) 72 Cal.App.4th 168, 170-171) [same].) The issue is presently before our Supreme Court (In re William R. (2005) 133 Cal.App.4th 1004, review granted Feb. 22, 2006, S139281; In re Sheena K. (2004) 116 Cal.App.4th 436, review granted June 9, 2004, S123980).

In Justin S., this court held that requiring an objection before the trial court as a prerequisite to challenging a probation condition on the grounds specified above would frustrate rather than subserve the interests of justice. (93 Cal.App.4th at p. 815, quoting People v. Welch (1993) 5 Cal.4th 228, 241 (conc. opn. of Arabian, J.).) Pending clarification of the issue from the Supreme Court, we decline to revisit this conclusion. Accordingly, appellant has not forfeited his contention.

2. Modification of the Probation Conditions

We conclude that the conditions are unconstitutionally vague and overbroad, insofar as they lack a knowledge requirement. In Justin S., we addressed a similar contention regarding a probation condition that obliged the juvenile in question not to associate with any gang members and anyone disapproved of by parent(s)/P.O. (93 Cal.App.4th at p. 813.) We held that the condition was vague and overbroad, and modified it to narrow its reference to persons known to the probationer to be associated with a gang, citing authority on this matter culminating in People v. Lopez (1998) 66 Cal.App.4th 615, 628. Under this authority, we reach the same conclusion here. The probation conditions must therefore be modified to limit their prohibitions to (1) persons known to appellant to be disapproved by his parents or probation officer (condition No. 15),

(2) persons known to appellant to be unlawfully armed (condition No. 16), and (3) locations known to appellant as places where users congregate (condition No. 21).^[1]

We also conclude that the portion of condition No. 15, as recorded on the preprinted form attached to the minute order directing appellant not [to] associate with co-minors, does not reflect the condition orally imposed by the juvenile court. The juvenile court directed appellant [n]ot [to] associate with companions in this matter  . . . . Respondent concedes that by this condition the juvenile court intended to prohibit appellant from associating with the two males who were his companions when Colson detained him on November 2, 2005. Condition No. 15 must therefore be modified to reflect the condition imposed by the juvenile court. (See People v. Mesa (1975) 14 Cal.3d 466, 471-472.)

DISPOSITION

Condition No. 15 is modified to read: Do not associate with those individuals who were your companions when you were detained on November 2, 2005, or anyone known to you to be disapproved by your parents or your probation officer; Condition No. 16 is modified to read: Do not have any dangerous or deadly weapon in your possession, or remain in the presence of any person known to you to be unlawfully armed; Condition No. 21 is modified to read: Do not use or possess narcotics, controlled substances, poisons or paraphernalia; stay away from places known to you to be where users congregate. The judgment, so modified, is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P.J.

SUZUKAWA, J.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

^[1] Citing People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1117 (Gallo), respondent argues that these modifications are unnecessary because the pertinent knowledge requirements are fairly implied by the existing conditions. We disagree. In Gallo, the court confronted an injunction that prohibited named members of a gang from associating with any other known . . . member of the same gang. (Id. at p. 1117.) The court rejected the contention that this condition was infirm because it applied if a defendant associated with a person known to the police -- but not to the defendant -- as a gang member. (Ibid.) On this matter, the court reasoned that the requisite additional knowledge requirement was fairly implied under the circumstances, and that any court enforcing the injunction would insert the additional requirement. (Ibid.) Unlike the injunction in Gallo, the probation conditions at issue here lack any express knowledge requirement. Under these circumstances, we believe it appropriate to insert the proper requirements.