Filed 5/10/17 In re A.S. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

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

THE PEOPLE,

Plaintiff and Respondent,

v.

A.S.,

Defendant and Appellant.

G052457

(Super. Ct. No. DL050715-001)

O P I N I O N
Appeal from a judgment of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed.
D. Inder Comar, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Michael Pulos, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The People filed a juvenile wardship petition against minor A.S. (Minor) alleging a misdemeanor count of making a false representation to a peace officer (Pen. Code, § 148.9, subd. (a) — count 1), and a misdemeanor count of violating curfew (San Juan Capistrano Mun. Code, § 5-9.201 — count 2). The court found insufficient evidence to support count 2 and granted Minor’s Welfare and Institutions Code section 701.1 motion to dismiss it. But the court found true the count 1 allegation and imposed on Minor nonward probation for six months pursuant to Welfare and Institutions Code section 725.
On appeal, Minor contends the officer detained her without reasonable suspicion and therefore the evidence must be excluded and the count 1 true finding reversed. We disagree and affirm the judgment.

FACTS

At 2:15 a.m., on October 11, 2014, Orange County Deputy Sheriff Anton Pereyra was driving in an unmarked patrol car and saw Minor and a man walking together on Camino Capistrano in San Juan Capistrano. Minor appeared to be 15 or 16 years old at most, while the man looked to be in his early twenties. Minor was walking close to the man, with the sides of their bodies touching. The man’s forearm was “draped across the front of her, holding her in tight.” It appeared to Pereyra that they were in a “dating-type relationship.”
Pereyra had conducted hundreds of investigations of potential curfew violations, including over 20 investigations where the minor was accompanied by a parent or guardian. Based on Pereyra’s training and experience, he believed Minor was not with a parent.
Pereyra pulled up to the curb near Minor and her companion, stopped his car, and got out to talk to them. He did not recall turning on his emergency lights, but believed he had activated his rear amber flashing lights to warn approaching traffic. He walked up to Minor and the man and asked them who they were and where they were going.
Minor said she was returning home from the Kaleidoscope Center. She gave Pereyra a false name and age, and asserted a specific birthdate in 1994. Pereyra realized the birthdate would have made her 20 years old. He told her the claimed birthdate was inconsistent with her claimed age.
Minor’s companion told Pereyra he was 24 years old, and was released from the scene.
A female deputy arrived and searched Minor. Pereyra then placed Minor in his patrol car. In the patrol car, Pereyra again asked Minor her birthdate. Minor asserted a specific birthdate in 1995, which was still inconsistent with her claimed age. Pereyra explained to Minor that if she gave him a false name or birthdate, she could be charged with an additional crime. Minor said she was 15 years old and asserted a specific birthdate in 1999.
The deputies drove Minor home. Minor stayed in the car, while Pereyra went to the door. A man and woman answered, identified themselves as Minor’s parents, and told Pereyra that Minor’s name was not the name Minor had given. In the patrol car, Minor told Pereyra her actual true name. She signed a citation under her true name.
Minor was born in 2000. She was 14 years old at the time of the encounter.
The People petitioned for Minor to be declared a ward of the court. Minor moved under Welfare and Institutions Code section 700.1 to suppress her statements to Pereyra, alleging they were the product of an unlawful nonconsensual detention.
At trial, after the close of evidence, the court heard argument on Minor’s suppression motion. The prosecutor argued that Pereyra had reasonable suspicion to detain Minor because it was 2:15 a.m.; Minor appeared to be 16 years old at most; and her companion appeared to be over 18 years old and was holding her in a way that suggested a dating relationship. The prosecutor argued it was immaterial that there might have been an innocent explanation because an officer is not required to eliminate all innocent explanations. The prosecutor argued that Pereyra had reasonable suspicion to believe Minor might be breaking the curfew and/or to be worried about Minor’s safety.
The defense argued that reasonable suspicion must be more than a mere hunch and that, because Minor’s companion could have been a brother or other family member and there was no kissing or touching of private parts, Pereyra had only a “hunch.” He stated there is an exception to the curfew rule when a minor is accompanied by a parent, legal guardian, or responsible adult authorized by the parent or guardian to have care and custody of the minor.
The court found Pereyra did not have reasonable suspicion to justify a detention when he first observed Minor and her companion. The judge began by saying that, when his youngest daughter was around 15 years old, it was common for her brother, then about 19 years old, to put his arm around her. The court noted that such physical contact is common in some families and cultures. The court concluded it was “speculation” and a “hunch” on Pereyra’s part to assume that Minor’s companion was a boyfriend or “some inappropriate adult,” because the man “could have been a father” or “a brother.” But the court believed Pereyra’s initial contact with Minor was consensual, since Pereyra simply stopped his car (with only his rear lights on), walked up to Minor and her companion, and asked them questions. In the court’s view, when Minor asserted an age that was inconsistent with her asserted birthdate, the officer then had reasonable suspicion that “something [wa]s amiss.” Consequently, the court found no violation of Minor’s Fourth Amendment rights.

DISCUSSION

Minor argues the court erred by denying her motion to suppress her false statements to Pereyra as the product of an unlawful detention in violation of the Fourth Amendment.
“[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot,’ even if the officer lacks probable cause.” (U.S. v. Sokolow (1989) 490 U.S. 1, 7.) “[T]o be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.’” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
A “detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.) A “‘court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.’” (Ibid.) “In some circumstances, a child’s age ‘[affects] how a reasonable person’ in the suspect’s position ‘would perceive his or her freedom to leave.’” (J.D.B. v. North Carolina (2011) 564 U.S. 261, 271-272.)
“On appeal from the denial of a suppression motion, the court reviews the evidence in a light favorable to the trial court’s 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 court’s legal conclusions.” (In re Joseph G. (1995) 32 Cal.App.4th 1735, 1738-1739.) As to the legality of the search, “it is irrelevant that the court relied on an erroneous legal theory if the court’s ruling was correct on any legal theory which is applicable to the case.” (In re Cody S. (2004) 121 Cal.App.4th 86, 92, fn. 4.)
We conclude the court properly denied Minor’s suppression motion because, even if we assume that Pereyra detained Minor from the outset of their encounter, the detention was supported by articulable facts that created a reasonable suspicion Minor might be violating the curfew ordinance. Minor appeared to be 16 years old or younger; she was on a public sidewalk at 2:15 a.m., and she was walking with a man who appeared to be older than 18 years old and who was holding her closely as though they were in a romantic relationship. (Compare In re Tony C. (1978) 21 Cal.3d 888, 896 [officer lacked reasonable suspicion when he saw two male black minors walking down street during noon hour of a weekday].) It does not matter that Minor’s companion might have been a family relative or an authorized responsible adult: “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 his investigation is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal — to ‘enable the police to quickly determine whether they should allow the suspect to go about his business or hold him to answer charges.’” (Id. at p. 894.)

DISPOSITION

The judgment is affirmed.




IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.