P. v. Gonsales

Filed 5/4/07 P. v. Gonsales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Jack P. Hunt, Judge. Affirmed.

Cynthia L. Barnes for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

________________

Mario Gonsales, also known as Mario Gonzalez, appeals from a judgment entered upon his conviction of possession of a concealed firearm (Pen. Code, 12025, subd. (a)(2))[1]upon a negotiated plea of no contest, after his motion to suppress evidence pursuant to section 1538.5 was denied. Appellant admitted having suffered a prior felony-strike conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The trial court sentenced appellant to an aggregate state prison term of two years eight months. Appellant contends that the trial court erroneously denied his motion to suppress evidence because the police officers strong suspicion that appellant had a gun was unreasonable, and the officer could not articulate facts to provide an objective manifestation that appellant was involved in criminal activity.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND[2]

At approximately 4:00 p.m., on April 20, 2006, uniformed police officers, Anthony Cantanese and his partner, Officer Estrada, of the Pomona Police Department, were on patrol, driving a tan, four-door Ford Crown Victoria with a forward facing red emergency light. This vehicle was readily recognized as a police vehicle. The officers were in the Cherryville gang neighborhood, hoping to speak to gang members about Cherryville graffiti that had been scrawled a day or two earlier in the territory of a rival gang, the Three-Five-Seven gang.

The officers stopped their vehicle at 575 North Huntington, in the City of Pomona. Officer Cantanese was familiar with this location, having been there between four and ten times before as part of his regular patrol. It was a stronghold for the Cherryville gang and a reported location of gang and narcotics activities. A member of that gang had been shot there within the prior six months.

Officer Cantanese observed appellant standing with another man next to a car containing four men. Appellant was leaning into the car window. The officer recognized Genaro Gonzales, a known Cherryville gang member, inside the car. Both men outside the car were dressed in clothing consistent with gang attire. Officer Cantanese believed a narcotics transaction was occurring, or they were passing items between each other, although he saw no crime committed.

Appellant was wearing a baggy white T-shirt that covered his waist area. When he recognized the officers vehicle and saw them approaching, he immediately put his right hand toward his waistband and started walking towards the front of the house. At that juncture, Officer Cantanese exited his vehicle and approached appellant. It appeared [appellant] was trying to hold something towards his waistband. Officer Cantanese knew that guns were commonly carried in the waistband. When he told appellant that he wanted to talk with him, appellant continued toward the house and quickened his pace, his hand remaining near his waistband.

Officer Cantanese broke into a slow jog and ordered appellant to stop because he did not want him to enter the house where there may have been other gang members. The officer caught appellant as he approached the residence and grabbed him. When he did so, appellant stopped walking, and removed his hand from his waist area and turned towards the officer. Officer Cantanese was concerned for his safety, so he immediately conducted a pat-down search, believing appellant had a gun. He removed a semiautomatic, unregistered handgun from appellants waistband at the exact location where he had seen appellants hand. The gun was operable and had one live round in the chamber and five rounds in the magazine.

Appellant was arrested. At the jail, he stated that he had the gun for protection because he had been shot at before and was aware of gang trouble at that location.

A gang expert testified that 575 North Huntington was a known Cherryville gang location. That gang was involved in vandalism, car thefts, narcotics violations, assaults, intimidation, murders and other offenses. There had been several investigations of attempted murder and arrests of gang members at that location. Cherryville gang members had previously shot at Pomona police officers, making the location one of particular concern for officers safety. Appellant was an active member of the Cherryville gang and had the moniker Chato. Immediately after appellants arrest, Genaro Gonzales, who lived at 575 North Huntington, threatened to shoot Officer Cantanese. The gang expert opined that appellant was carrying the gun for the benefit of a criminal street gang.

Appellant testified on his own behalf. He stated that when the police first arrived, he was standing outside a parked car talking with his uncle and homies inside the car. His uncle and grandfather lived at 575 North Huntington. When appellant first saw the police car, he turned and walked briskly toward the house because he knew he had a gun and was on probation and could therefore be frisked at any time with or without probable cause. He wanted to avoid the police because he did not want to go to jail. He did not reach for or grab the gun and denied ever having his hand near his waist. When he took two steps onto the stairs of his grandfathers home, he felt Officer Cantaneses hand and turned around. The officer immediately began searching him. At no time did the officer say anything.

Appellant had no gang tattoos and claimed he had not yet been jumped into the Cherryville gang, although his family wanted him to do so.

Based upon the foregoing, appellant moved to suppress the prosecutions evidence against him, contending that it was the fruit of a warrantless search after an unlawful detention. The trial court denied the motion, finding that Officer Cantanese was justified in stopping and searching appellant because he had a strong suspicion that appellant had a gun in his waistband.

DISCUSSION

Appellant contends that the trial court erred in denying his motion to suppress evidence made pursuant to section 1538.5. He argues that his initial detention was unlawful because the police officer did not and could not point to specific, articulable facts that, considered in light of the totality of the circumstances, provided some objective manifestation that appellant was involved in criminal activity. This contention is without merit.

A. Standard of review

The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts 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. [Citations.] (People v. Glaser (1995) 11 Cal.4th 354, 362; see also In re Brian A. (1985) 173 Cal.App.3d 1168, 1173.) In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial courts ruling . . . . (People v. Miranda (1993) 17 Cal.App.4th 917, 922.) Pursuant to article I, section 28, subdivision (d) of the California Constitution, we evaluate challenges to the admissibility of evidence obtained by police seizures under federal constitutional standards. (People v. Woods (1999) 21 Cal.4th 668, 674.)

B. Appellant was detained

The Fourth Amendment provides that [t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated . . . . (U.S. Const., 4th Amend.) But not all encounters between citizens and police are detentions that require constitutional justification. The test of whether a detention has occurred is whether a reasonable person would feel free to decline the officers requests or otherwise terminate the encounter. (Florida v. Bostick (1991) 501 U.S. 491, 436; United States v. Mendenhall (1980) 446 U.S. 544, 554; People v. Daugherty (1996) 50 Cal.App.4th 275, 282 [consensual interaction between police and citizen requires no justification when no restraint on individuals liberty].) It is not a constitutional violation for an officer to merely approach an individual in a public place and ask if the person is willing to talk or listen to the officer. (Florida v. Royer (1983) 460 U.S. 496, 497; Wilson v. Superior Court (1983) 34 Cal.3d 777, 789; People v. Daugherty, supra, at p. 283.) Simply because a police officer identifies himself as such, without more, is insufficient by itself to convert a voluntary encounter into a seizure requiring justification. (Florida v. Royer, supra, 460 U.S. at p. 497.)

Officer Cantanese first arrived on the scene and observed appellant leaning into a car and conversing with individuals inside. When he approached appellant and simply requested to speak with him, there was no detention, as a reasonable person would feel free to decline the officers request and terminate the encounter. Apparently, appellant felt free to do so, as he quickly began walking away from the officer. But, when Officer Cantanese finally caught up with appellant and grabbed him, there was a physical restraint and detention. At that juncture, appellant was not free to leave.

C. The detention was justified

A detention occurs when a person is stopped for a limited duration, scope and purpose, such as for investigation and/or questioning. (People v. Daugherty, supra, 50 Cal.App.4th at pp. 282-283.) Such a stop does not require probable cause but merely a reasonable suspicion that the person has committed, or is about to commit a crime. (People v. Bennett (1998) 17 Cal.4th 373, 386-387; People v. Daugherty, supra, at pp. 282-283; Florida v. Royer, supra, 460 U.S. at p. 498; People v. Manis (1969) 268 Cal.App.2d 653, 658.) An officer has a reasonable suspicion when he is able to point to specific, articulable facts that, considered in light of the totality of the circumstances, provide an objective manifestation that the detained person may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.) Generally speaking a police officer may detain and question a person when the circumstances are such as would indicate to a reasonable man in a like position that such a course is necessary to the proper discharge of his duties. (People v. Machel (1965) 234 Cal.App.2d 37, 44-45; see also Terry v. Ohio (1968) 392 U.S. 1, 21-22, 27.) [A]n officer of the law, employed to maintain the peace and to prevent crime, as well as to apprehend criminals after the fact, has both the right and the duty to make reasonable investigation of all suspicious activities even though the nature thereof may fall short of grounds sufficient to justify an arrest or a search of the persons or the effects of the suspects. Experienced police officers naturally develop an ability to perceive the unusual and suspicious which is of enormous value in the difficult task of protecting the security and safety of law-abiding citizens. (People v. Cowman (1963) 223 Cal.App.2d 109, 117.)

Given all of the circumstances presented, there were articulable facts justifying Officer Cantaneses suspicion that criminal activity had occurred or was about to occur involving appellant and justifying appellants detention: (1) the location of the stop was known to be Cherryville gang territory and immediately outside of the gangs stronghold, (2) the Cherryville gang had previously shot at Pomona police officers, (3) the location was known for drug transactions and gang activity, (4) Officer Cantanese observed appellant, dressed in clothing consistent with gang attire mingling with at least one other gang member, (5) the officer observed appellant and other individuals passing something around, possibly involving a narcotics transaction, (6) upon seeing Officer Cantanese, appellant immediately placed his hand near his waistband, where Officer Cantanese was aware handguns were frequently stored, and (7) as the officer approached appellant asking if he could talk to him, appellant walked away rapidly, seeking to avoid the officer. These were articulable facts justifying appellants detention.

The fact that Officer Cantaneses observations could be subject to a totally innocent interpretation does not render the detention illegal. Investigation is not precluded simply because suspicious activities may have an innocent and lawful explanation. Where conduct is consistent with either criminal or lawful activity, the police officer is justified in approaching and questioning in order to resolve that very ambiguity and establish whether the activity is in fact legal or illegal . . . . [Citation.] (In re Tony C. (1978) 21 Cal.3d 888, 894.)

Appellant argues and cites case authority for the proposition that neither the fact that a neighborhood is a high crime area nor that a suspect flees the police justifies a police detention. This argument is inapposite. Here, these factors were not in isolation but accompanied numerous other circumstances that justified appellants detention.

When Officer Cantanese caught appellant and grabbed him, he was justifiably concerned for his safety. He was in a violent gang neighborhood, where officers had previously been targets of gunshot, and saw appellant holding his waist area as if he had a gun secreted there. An officer can conduct a pat-down search for weapons in the course of a lawful detention for officer safety. (People v. Thurman (1989) 209 Cal.App.3d 817, 821, 823; Terry v. Ohio, supra, 392 U.S. at p. 27.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, P. J.

BOREN

We concur:

______________________, J.

ASHMANN-GERST

_______________________, J.

CHAVEZ

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

[2] Because appellant entered a negotiated plea without trial, the facts are taken from the hearing on his motion to suppress evidence, which occurred concurrently with his preliminary hearing.