P. v. Chheang

Filed 7/30/07 P. v. Chheang CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County.

Gary J. Ferrari, Judge. Affirmed.

Linda C. Rush, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Michael A. Katz, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________________________

INTRODUCTION

Police officers found appellant in possession of a handgun that had been used in the shooting death of a 16-year-old boy. Appellant moved to suppress the handgun based upon a theory of illegal search and seizure. The motion was denied by the trial court. A jury convicted appellant of first degree murder (Pen. Code, 187, subd. (a))^[1] and additionally found true that he committed the murder with a firearm ( 12022.53) and that he committed the murder for the benefit of a criminal street gang ( 186.22). Appellant contends that the trial court erred when it denied his motion to suppress ( 1538.5) and further contends that the statements made by him to police investigators should be suppressed as fruits of an illegal search.

STATEMENT OF FACTS

1.Evidence Presented at Suppression Hearing ( 1538.5)

On June 14, 2005, at approximately 8:30 p.m., Officers Bradford Stein and Jeremie Chavez observed appellant and a friend, Johnny Hy, riding bicycles without lights in the vicinity of 15th Street and Martin Luther King Avenue in Long Beach. Officer Stein intended to issue citations to appellant and Hy for violation of Vehicle Code section 21201, subdivision (d), riding the bicycles without lights.

The officers conducted a pat-down search of both young men. The frisk of Johnny Hy revealed no weapons, but Officer Stein found a .40-caliber SIG Sauer semiautomatic handgun in appellants waistband. Officer Stein testified that he and his partner took the precaution of patting down appellant because the area was known to both officers as a high crime area and also one in which a great deal of gang activity takes place. Also, both young men were wearing loose and oversized clothing that could easily conceal a weapon, and Hy had a freshly shaved head. Based on the manner in which appellant and Hy were dressed, the officer suspected that the two were gang members. The officers were also aware that the previous night, five blocks away, a shooting had taken place which was associated with Asian gangs in the neighborhood. Finally, the officers were concerned that they might be numerically evenly matched if the situation became hostile.

2. Evidence Produced at Trial

On June 13, 2005, at approximately 11:00 pm, Abraham Sanchez (age 16) and Raphael Rodriguez (age 18) were visiting a friend and departed in opposite directions. Within moments, Rodriguez heard nine or 10 gunshots from the direction in which Sanchez had been walking. Witnesses, including Rodriguez, saw three Asian or Hispanic males running away from the scene. One witness saw that one of the three men had long hair and that the other two had shaved heads. Officers from the Long Beach Police Department arrived at 936 Washington Place in response to a shots fired call and found Sanchez, who had been shot seven times in the torso and head but was still alive. Six .40-caliber casings and three .40-caliber projectiles were recovered at the scene of the shooting. Thereafter, one .40-caliber bullet fragment and four .20-caliber bullets and fragments were recovered from the body of the victim, who died approximately one and a half months later.

The day after the shooting, appellant was arrested following a traffic stop during which police officers seized a SIG Sauer handgun. Ballistic testing indicated that appellants gun was involved in the shooting of Sanchez. Appellant was read Miranda warnings and signed a document indicating that he understood all of his rights. Detective William Matsubara questioned appellant about the gun, the ballistics evidence and the shooting, and appellant confessed to shooting Sanchez.^[2]

Appellant was charged with murder in a single-count information with enhancements for use of a firearm and perpetration of the offense to benefit a criminal street gang. A jury found appellant guilty of first degree murder and found the additional allegations true. The court sentenced appellant to a total prison term of 50 years to life with credits of 351 days.

DISCUSSION

I. Standard of Review

The trial court, in ruling on a motion to suppress, finds relevant facts, selects applicable rules of law and applies that law to the facts in order to determine whether a violation of that law has occurred. (People v. Ayala (2000) 23 Cal.4th 225, 255.) Appellate courts review factual findings under a deferential substantial evidence standard, and review the selection and application of law under an independent review standard. (Ibid.)

II. Detention

An officer may legally detain a suspect based upon a reasonable suspicion that the suspect has committed or is about to commit a criminal offense. (Terry v. Ohio (1968) 392 U.S. 1, 22.) The same rules apply to suspects who have committed traffic violations. (Whren v. United States (1996) 517 U.S. 806, 810, 817-818.) The detention here was based upon violation of Vehicle Code section 21201(d), riding bicycles without lights. Appellant does not contend that Officer Stein detained him illegally but complains that the ensuing limited frisk for weapons was improper.

III. Search

When an officer has lawfully detained a suspect, he may conduct a limited search of the suspects person for weapons that might be used to harm the police officer or others. (Terry v. Ohio, supra, 392 U.S. at pp. 25, 27, 29; People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 812-813.) The officer must have reasonable grounds to believe that the suspect is armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at p. 21; People v. Superior Court (Kiefer), supra, 3 Cal.3d at p. 829.) The court determines objectively whether the officers belief was reasonable and in consideration of specific, articulable facts known by the officer which formed that belief. (People v. Medina (2003) 110 Cal.App.4th 171, 176; People v. Souza (1994) 9 Cal.4th 224, 229; People v. Dickey (1994) 21 Cal.App.4th 952, 956.) A reviewing court considers these facts comprehensively and not in isolation. (Terry v. Ohio, supra, 392 U.S. at p. 27; see People v. Superior Court (Kiefer), supra, 3 Cal.3d at p. 827.) The officer need not be certain that the suspect is armed; the relevant issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. (Terry v. Ohio, supra, 392 U.S. at p. 27.) A test for reasonableness under the Fourth Amendment involves a balancing of legitimate expectations of privacy against governmental objectives. (Whren v. United States, supra, 517 U.S. at pp. 817-818)

Here, Officer Stein testified to his belief that his safety was at risk based upon six factors. The geographic area of the detention was known to both officers as one with a high degree of violent crime. The area was also a known gang territory. The suspects themselves displayed hair and clothing characteristic of gang membership. The clothing worn by the suspects could have easily concealed weapons of all types. There had been a recent shooting in the area involving Asian gangs. Finally, the officers were numerically matched to the suspects, which gave both officers increased concern for their safety.

When considered among other factors, an officers knowledge of increased drug and violent crime in an area can be a valid factor in determining an objectively reasonable belief that a suspect detained in that area might be armed and dangerous. (People v. Limon (1993) 17 Cal.App.4th 524, 535.) Likewise, an area involved increased gang activity may be considered if it is relevant to an officers belief the detainee is armed and dangerous. (In re Frank V. (1991) 233 Cal.App.3d 1232, 1241.) It is not unreasonable to believe that if these individuals were gang members and in a gang territory, that they were also armed. Association with a particular illegal trade or group can lead to reasonable suspicion that a member of that group is armed. (People v. Glaser (1995) 11 Cal.4th 354, 367 [noting that firearms are tools of the trade for narcotics dealers, therefore it is reasonable to believe such a suspect may be armed].)

The trial court determined the reasonableness of the search by a balancing of interests. The court noted each of Officer Steins safety concerns and weighed them against the brief and minimal intrusion of the pat-down search. Generally, the concern for officer safety is given significant weight. (People v. Dickey, supra, 21 Cal.App.4th at p. 957.) The trial court correctly found the balance of interests to be in favor of allowing a limited frisk for weapons.

IV. Conclusion

Although the factors articulated by Officer Stein might fail to justify a search for weapons if considered separately, taken together they would cause a reasonable person to fear for his safety. The search for weapons was justified and the motion to suppress was correctly denied. In light of this conclusion, there is no basis for suppression of appellants statements as fruits of a Fourth Amendment violation.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.

We concur:

DOI TODD, J.

CHAVEZ, J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Appellant filed an Evidence Code section 402 motion to suppress his incriminating statements as involuntary. However, the only issue raised on appeal regarding appellants statements is that they should have been suppressed as fruits of an illegal search. Inasmuch as we affirm the trial courts order finding the search was not unlawful, we do not address the fruit of the poisonous tree argument.