In re Roberto R.

Filed 12/10/07 In re Roberto R. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant was adjudged a ward of the juvenile court based on his commission of misdemeanor possession of a deadly weapon. On appeal, he challenges the denial of his motion to suppress, and the validity of certain probation conditions. We reject most of his contentions, but modify the gang-related probation conditions, as suggested by respondent, to address appellants constitutional concerns. As so modified, we affirm the trial courts dispositional order.

Facts and procedural background

On April 13, 2006,[1] at 3:08 p.m., a Pittsburg Police officer received a radio dispatch advising him of a report from an anonymous caller who had seen two males, either Asian or Hispanic, possibly smoking marijuana in a car parked on Suzanne Drive at Goldenhill Drive, near a park.[2] The dispatcher told the officer that the caller described the car as a dark-colored Honda with a license plate containing the characters 4KE.

At about 3:15 p.m., the officer arrived at the location where the car had been reported. Upon arriving, he saw a brown Ford Taurus, with the license plate number 4KDC857, parked on Goldenhill facing west, near Suzanne. As the officer turned onto Goldenhill from Suzanne, he was headed toward the rear of the Taurus. After the officer drove toward the Taurus for one or two seconds, it pulled away from the curb and made a U-turn, heading toward and past the officers patrol car. As the Taurus headed toward him, the officer saw two Hispanic males in the car, one in the drivers seat and the other in the front passenger seat. The officer did not see the occupants of the Taurus doing anything of note, such as making any sharp movements. The officer next made a U-turn himself, stopped the Taurus at the corner of Suzanne and Goldenhill, got out of his own car, and walked toward the Taurus from the rear.

When the officer reached the trunk of the Taurus, he detected the odor of marijuana. The officer was on the drivers side of the car, and the drivers window was entirely open. The officer walked to the drivers door, asked for the drivers identification, and inquired about the smell of marijuana. The driver denied any recent marijuana use in the car. The officer directed the driver to get out of the Taurus, patted him down, and locked him in the back seat of the patrol car.

The officer then approached the passenger, whom he had told to stay in the car, and whom he later identified in court as appellant Roberto R. The officer asked appellant if he had been smoking marijuana in the car, and appellant said he had. While speaking with appellant, the officer looked in the car for weapons, and saw a red-colored object that he believed was a billy club or altered bat on the passenger side floorboard. The officer characterized the object as a billy club because it had tape wrapped around it about five inches below the handle for easy gripping; it had been sawed off so it was shorter than its original size; and it was light weight for maximum swinging ability.

The officer asked appellant if the object was his, and appellant admitted that it was. The officer then arrested him. After the officer read appellant his Miranda rights, appellant said that he had found the object a few weeks earlier, and had kept it since then for self-defense in case he had problems with anybody. After appellant was arrested, the officer searched the car, and found a small bag of marijuana under the drivers seat.

A petition was filed in Contra Costa County Juvenile Court on July 3, alleging that appellant came within the provisions of Welfare and Institutions Code section 602, in that he possessed a deadly weapon, specifically a billy club, in violation of Penal Code section 12020, subdivision (a)(1). On August 17, appellant denied the allegation.

On October 20, appellant moved to suppress evidence pursuant to Welfare and Institutions Code section 700.1. On November 6, at a combined motion to suppress and jurisdictional hearing, the court denied the motion to suppress and sustained the petition, finding that the object seized from appellant on April 13 was in fact a billy club.

On November 22, appellant filed a timely notice of appeal from the conviction entered on November 6. On November 27, the court adjudged appellant a ward of the court and placed him on probation.

discussion

A. Denial of Motion to Suppress

Appellant contends that his motion to suppress the bat should have been granted, because the officer did not have a proper legal basis to stop the car in which appellant was riding, and the officers discovery of the bat was therefore the fruit of an improper detention. In the trial court, respondent disputed whether appellant was detained for Fourth Amendment purposes by the officers act of stopping the car. On appeal, respondent expressly concedes that under Brendlin v. California (2007) ___ U.S. ___ [127 S.Ct. 2400], this issue must be resolved in appellants favor. Thus, the issue before us on appeal is whether the anonymous tip received by the police in this case, together with the other factual circumstances, justified the officers decision to stop the car.

The standard of review of a trial courts ruling on a motion to suppress is well established, and is the same in juvenile proceedings as in adult criminal cases.   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 that are supported by substantial evidence and independently determine whether the facts support the courts legal conclusions. [Citation.]  (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)

Appellant does not dispute that an officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. (People v. Saunders (2006) 38 Cal.4th 1129, 1135; People v. Wells (2006) 38 Cal.4th 1078, 1082; People v. Superior Court (Simon) (1972) 7 Cal.3d 186, 200, abrogated on other grounds by constitutional amendment as stated in People v. Monroe (1993) 12 Cal.App.4th 1174, 1195.) The issue he raises on appeal is whether it was reasonable for the officer to stop the car in this case, particularly in light of the officers reliance on an anonymous tip.

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. (People v. Souza (1994) 9 Cal.4th 224, 231.) For this purpose, both the quantity and quality of the information indicating criminal activity must be assessed in evaluating whether the officers suspicion was reasonable. (Alabama v. White (1990) 496 U.S. 325, 330.) The level of information required to justify a detention is less than that required to establish probable cause for a full-fledged arrest or search. (United States v. Sokolow (1989) 490 U.S. 1, 7; People v. Souza, supra, 9 Cal.4th at p. 230.) The observed conduct need not be obviously criminal; wholly lawful conduct might justify the suspicion that criminal activity was afoot. (Reid v. Georgia (1980) 448 U.S. 438, 441.) Moreover, the level of suspicion needed to make a vehicle stop is less than that required to search a person standing on a public street. (People v. Wells, supra, 38 Cal.4th at p. 1087.)

When a detention is predicated in part on information derived from an anonymous tip, as occurred in this case, the tip must be suitably corroborated (Florida v. J. L. (2000) 529 U.S. 266, 270), because an anonymous tip alone seldom demonstrates the informants basis of knowledge or veracity. (Alabama v. White, supra, 496 U.S. at p. 329; see People v. Saldana (2002) 101 Cal.App.4th 170, 174.) As our Supreme Court recently noted, however, a tips reliability can be shown even without its ability to predict the suspects future behavior [citation] or the officers ability to corroborate present illegal activity [citation]. Rather, the tips reliability depends upon an assessment of the totality of the circumstances in a given case. [Citation.] (People v. Dolly (2007) 40 Cal.4th 458, 464.) A suspect or vehicle that conforms to a description given in an uncorroborated anonymous tip of a crime in progress may be detained when encountered close in time and place to the reported criminal activity, even if the description is very general, or the detainee does not correspond to it perfectly. (See People v. Flores (1974) 12 Cal.3d 85, 91-92, superseded by statute on other grounds as stated in People v. Preciado (1991) 233 Cal.App.3d 1244, 1249, fn. 6; People v. Schader (1965) 62 Cal.2d 716, 722-725, overruled on other grounds in People v. Cahill (1993) 5 Cal.4th 478, 510-511, fn. 17; People v. Conway (1994) 25 Cal.App.4th 385, 390; People v. McCluskey (1981) 125 Cal.App.3d 220, 226-227.)

In this case, the tip was corroborated by the behavior observed by the officer. When the officer turned onto Goldenhill, the Taurus almost immediately pulled away from the curb, and then made a U-turn as the officer drew closer.[3] The sudden departure of the car, right after the arrival of the officers patrol car, was reasonably viewed as suspicious behavior. (See Illinois v. Wardlow (2000) 528 U.S. 119, 124.)

In addition, our Supreme Court has held that an anonymous and uncorroborated tip can justify a temporary vehicle stop for the purpose of further investigation, at least under exigent circumstances such as an indication of potential danger from an intoxicated or reckless driver. (People v. Wells, supra, 38 Cal.4th at pp. 1083-1084.) In the present case, although the anonymous tipster related that the vehicle was parked, the information in the tip still presented the possibility that once the occupants of the vehicle decided to leave the scene, the driver would then be driving while under the influence of marijuanaconduct that not only is criminal (Veh. Code,  23152, subd. (a)), but also poses a danger to the public similar to that posed by a driver under the influence of alcohol. (See People v. Goldberg (2003) 105 Cal.App.4th 1202, 1209-1210.) Moreover, that risk increased when the vehicle began to drive off soon after the officer arrived.

In addition, the accuracy of the tip was corroborated by the presence of a dark-colored car in the reported location, bearing two characters on its license plate that corresponded with those given by the caller, with two Hispanic males inside, as the tipster had reported. There was no evidence that any other dark-colored vehicle occupied by two Latinos was to be found in the area. The discrepancy between the tip and the facts with regard to the make of the car (Honda versus Taurus) and the third character of the license plate are not sufficient to vitiate the validity of the tip, as they are details about which an honest and reliable observer could reasonably be mistaken. Since the car occupied by appellant was the only one corresponding to the tipsters description, the officer acted reasonably by stopping it. (Cf. People v. Conway, supra, 25 Cal.App.4th at p. 390 [officer acted reasonably in stopping car driving through residential neighborhood at 3:00 a.m. shortly after burglary was reported in area, even though report did not mention any vehicle, and included no description of any suspects].)

In short, although the accuracy of the anonymous tip and the exigency of the circumstances in the present case were not as great as they were in People v. Wells, supra, 38 Cal.4th 1078, we agree with the trial court that considering all the circumstances, the officer had sufficient cause to detain the vehicle.

Appellant points out that the police dispatch log submitted in evidence showed that shortly before the officers arrival at the scene, the informant again called police to report that the vehicle was leaving, and the caller thought it was headed in the direction of Buchanan Road. Appellant argues that this information conflicts with the fact that when the officer arrived, the Taurus was still parked, and was pointing away from Buchanan. Nonetheless, the officers observations were sufficiently consistent with the report that his detention of the car was justified. (Cf. People v. Lindsey (2007) 148 Cal.App.4th 1390, 1400 [detention based on anonymous tip was justified, even though caller inaccurately reported direction in which defendant was walking, where defendant was seen close to reported location soon after tipsters call was received].)

B. Probation Conditions

Appellant also challenges two of the conditions of probation imposed by the juvenile court: the prohibition against operating a motor vehicle, and certain conditions relating to gangs. In reviewing these challenges, we are guided by well-established principles. A juvenile court is vested with broad discretion in determining what probation conditions are appropriate. (In re Antonio C. (2000) 83 Cal.App.4th 1029, 1033.) The juvenile courts exercise of its discretion in establishing conditions of probation will not be disturbed on appeal in the absence of a manifest abuse of that discretion. (In re Christopher M. (2005) 127 Cal.App.4th 684, 692; In re Josh W. (1997) 55 Cal.App.4th 1, 5.)

Juvenile courts are statutorily authorized to impose on their wards any and all reasonable conditions that it may determine fitting and proper to the end that justice may be done and the reformation and rehabilitation of the ward enhanced. (Welf. & Inst. Code,  730, subd. (b); In re Christopher M., supra, 127 Cal.App.4th at p. 692; In re Babak S. (1993) 18 Cal.App.4th 1077, 1084.) Moreover, juveniles are deemed to be more in need of guidance and supervision than adults; accordingly, their rights are more circumscribed. (In re Antonio R. (2000) 78 Cal.App.4th 937, 941.) Thus, a condition of probation that would be impermissible for an adult probationer may be reasonable for a minor. (In re Christopher M., supra, 127 Cal.App.4th at p. 692; In re Antonio R., supra, 78 Cal.App.4th at p. 941; In re Binh L. (1992) 5 Cal.App.4th 194, 203.)

The juvenile courts discretion is not entirely unlimited, however. A juvenile probation condition must relate to the crime of which the offender was convicted; relate to conduct which is itself criminal; or require or forbid conduct which is reasonably related to future criminality. (In re Babak S., supra, 18 Cal.App.4th at p. 1084; see People v. Lent (1975) 15 Cal.3d 481, 486, superseded on other grounds by constitutional amendment as stated in People v. Wheeler (1992) 4 Cal.4th 284, 290-291 (Lent).) Thus, a condition of probation that forbids conduct which is not itself criminal is valid only if that conduct is reasonably related either to the crime of which the defendant was convicted, or to future criminality. (In re Babak S., supra, 18 Cal.App.4th at p. 1084; see Lent, supra, 15 Cal.3d at p. 486.)

1. Prohibition on Driving

Appellants first challenge to his probation conditions concerns the order that he not operate a motor vehicle. The court imposed this condition because, at the dispositional hearing (by which time appellant had turned 18), it was disclosed that appellant had obtained a physicians recommendation under the Compassionate Use Act of 1996 (Health & Saf. Code,  11362.5 et seq.) (Compassionate Use Act) permitting him to smoke medical marijuana as a result of a gunshot injury that caused him chronic pain,[4] and that he exercised this privilege on a daily basis. Over the objections of the prosecution and the juvenile probation officer, the court ruled that appellant could continue to use marijuana for medical purposes. However, because of appellants medical marijuana use, the court imposed a condition of probation prohibiting him from operating a motor vehicle.

Appellant concedes that it would have been reasonable to prohibit him from driving while under the influence of marijuana. He argues, however, that ordering him not to drive at all did not satisfy the Lent test, because: (1) the Compassionate Use Act does not preclude medical marijuana users from driving; (2) operating a car has no connection to the offense appellant committed; and (3) driving not only is not criminal in itself, but is in fact important for appellants rehabilitation, as he needs to drive in order to get to work.

We cannot agree that the trial court abused its discretion in imposing the driving ban as a condition of probation. Probation conditions may reasonably be imposed in order to deter future criminal behavior. (Cf. People v. Andrews (1983) 147 Cal.App.3d Supp. 11 [suspension of drivers license as condition of probation for driving under influence of alcohol not violation of trial courts discretion].) Appellant admittedly uses medical marijuana on a daily basis to alleviate the pain from a gunshot wound. Given this fact, we cannot fault the trial court for not wanting to rely on appellants own unilateral judgment to determine whether or not he is under the influence of the drug and should not drive.

Moreover, although appellants actual conviction for possession of a billy club was not driving related, the same is not true for the circumstances of his crime. When arrested, appellant had been smoking marijuana in a parked car with the driver present, creating a risk that the drivereven if not himself smokingwould inhale appellants second-hand marijuana smoke, and then drive away while in an impaired condition.[5]

Appellant relies on In re Christopher W. (1973) 29 Cal.App.3d 777, 783-784, disapproved on another ground in In re William G. (1985) 40 Cal.3d 550, 566, in which the court held that suspension of the minors drivers license as a condition of probation for a marijuana possession offense did not satisfy the Lent test. In that case, however, the marijuana had been found in the minors locker at school, and unlike in this case, there was no indication that the crime had any nexus whatsoever with driving or cars. Moreover, the court noted that a suspension of a minors driving privileges could be properly imposed as a condition of probation in an appropriate case, if it was necessary for the reformation and rehabilitation of the juvenile. (Id. at p. 784.)

In this case, the trial courts concern about appellants daily use of medical marijuana, coupled with the fact of his having smoked it in a car, are entirely sufficient to distinguish this case from In re Christopher W., and to render it an appropriate case for the imposition of a driving ban.

2. Gang Conditions

As part of appellants probation conditions, the trial court instructed appellant that You are to have no gang associations. You may not be a gang member and you may not engage in gang activities or wear gang colors. At the least thats red and blue, and Probation will have other colors that they will specify to you. You may not wear gang clothing, [or] wear or display gang signs or insignias, and you may not possess gang paraphernalia or indicia. We refer to this portion of appellants probation conditions as the gang conditions. Appellant contends that the imposition of the gang conditions was an abuse of discretion under the Lent test, and also that the gang conditions are unconstitutionally vague and overbroad.

Appellants abuse of discretion challenge to the gang conditions is premised on his contention that the record was entirely devoid of evidence of gang involvement on his part. This contention is belied by the record. Appellants probation officer testified at the dispositional hearing that people carry weapons of a certain color because they are in a gang [associated with] a certain color.  []  Now, if [appellant] took the time to get a red bat, its likely he had a red bat for a reason. Additionally, appellant told the probation officer that he had the bat for protection when I see someone on the street that I have a conflict with.

In light of this evidence, it was reasonable for the court to believe that appellant may have been associated with gang members and might engage in gang-related violence. Accordingly, even though there was no evidence that appellant was currently a gang member, the probation condition was not an abuse of discretion under the Lent criteria. (See In re Laylah K. (1991) 229 Cal.App.3d 1496, 1500-1502, disapproved on other grounds in In re Sade C. (1996) 13 Cal.4th 952, 962, fn. 2 [Where a court entertains genuine concerns that the minor is in danger of falling under the influence of a street gang, an order directing a minor to refrain from gang association is a reasonable preventative measure in avoiding future criminality and setting the minor on a productive course.].)

As for appellants vagueness and overbreadth challenges to the content of the conditions, we note that the trial court did not have the benefit of the California Supreme Courts recent decision in In re Sheena K.(2007) 40 Cal.4th 875 (Sheena K.). In Sheena K., the probation conditions imposed on a minor convicted of misdemeanor battery included a requirement that she  not associate with anyone disapproved of by probation.  (Sheena K., supra, 40 Cal.4th at p. 878.) The minor contended that this condition was unconstitutionally vague and overbroad.

The Supreme Court agreed, noting that [a] probation condition must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated, if it is to withstand a challenge on the ground of vagueness. [Citation.] (Sheena K., supra, 40 Cal.4th at p. 890.) Accordingly, the Supreme Court held that the quoted probation condition was both vague and overbroad because the juvenile court did not require that in order to be in violation, [the minor] must know which persons were disapproved of by the probation officer. (Ibid.; see id. at p. 892.) Accordingly, the court ordered the probation condition modified to impose an explicit knowledge requirement, a modification which the court deemed necessary to render the condition constitutional. [Citations.] (Id. at pp. 892.)[6]

In this case, as appellant points out, the gang conditions preclude him from associating with gang members without requiring that he know he is doing so. (Cf. In re Justin S. (2001) 93 Cal.App.4th 811, 816.) Similarly, the gang conditions preclude him from wearing gang clothing, wearing or displaying gang signs or insignias, or possessing gang paraphernalia or indicia, without defining what a gang is, and without giving any list or other method by which appellant can determine whether a specific article of clothing or other object has gang connections. (Cf. Gatto v. County of Sonoma (2002) 98 Cal.App.4th 744, 773-776 [discussing wide range of colors, clothing, and insignia that may be considered gang-related].)

Respondent does not contest appellants vagueness and overbreadth challenges to the gang conditions, but proposes that they can be resolved by adding a knowledge requirement, as was done in Sheena K. Respondent also suggests that any vagueness problem with the word gang may be cured by defining it as a criminal street gang within the meaning of Penal Code section 186.22, subdivisions (e) and (f). (See People v. Lopez (1998) 66 Cal.App.4th 615, 638.) We agree with respondent that these modifications are sufficient to obviate appellants constitutional challenges to the gang conditions.

Disposition

The gang conditions imposed as a condition of appellants probation are modified to read as follows: You shall not associate with persons whom you know to be gang members. You shall not be a gang member and you shall not knowingly engage in gang activities or knowingly wear gang colors, including red, blue, and any other color that you know has been specified by the probation department. You shall not knowingly wear gang clothing, or knowingly wear or display gang signs or insignias, and you shall not knowingly possess gang paraphernalia or indicia. For the purpose of this probation condition, the word gang means a criminal street gang within the meaning of Penal Code section 186.22, subdivisions (e), (f). As so modified, the judgment is affirmed.

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Ruvolo, P. J.

We concur:

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Reardon, J.

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Rivera, J.

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[1] All further references to dates are to the year 2006 unless otherwise noted.

[2] Appellants opening brief includes a map of the area, and requests that we take judicial notice of it. Respondent does not object. The request is granted.

[3] Respondent argues on appeal that this U-turn was illegal under section 22103 of the Vehicle Code, and that this provided an independent basis for the officer to stop the car. There is no evidence in the record that the officer relied on the making of the U-turn in deciding to stop the car, and it is not clear from the record that the U-turn was in fact illegal. Accordingly, our disposition of this issue on appeal does not rely on a determination that the U-turn was illegal.

[4] Appellants mother explained at the hearing that appellant, like all of her children, had difficulty swallowing pills, and as a result, had experienced difficulty taking other pain medications.

[5] It is presumably in recognition of this risk that the Compassionate Use Act prohibits the use of medical marijuana in a motor vehicle that is being operated. (Health & Saf. Code,  11362.79, subd. (d).)

[6] In Sheena K., before reaching the vagueness and overbreadth issues, the Supreme Court first held that the minor had not forfeited those issues by failing to raise them in the trial court. (Sheena K., supra, 40 Cal.4th at pp. 880-889.) In light of that holding, respondent here does not contend that appellant waived his constitutional challenges. Respondent does contend, however, that appellant waived his reasonableness challenge as to the gang conditions. In light of our rejection of appellants reasonableness argument on the merits, ante, we need not reach the question whether it was forfeited.