Filed 1/8/18 In re Emmanuel R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EMMANUEL R., a Person Coming Under the Juvenile Court Law.


THE PEOPLE,

Plaintiff and Respondent,

v.

EMMANUEL R.,

Defendant and Appellant.


G053849

(Super. Ct. No. 16DL1066)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Douglas Hatchimonji, Judge. Affirmed as modified.
Robert F. Somers, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
The primary issue in this case is whether the police had reasonable suspicion to stop and pat down appellant after receiving an anonymous tip regarding graffiti activity in the area where the stop occurred. Based on the tip, and all of the other circumstances surrounding the encounter, we conclude there was reasonable suspicion to believe appellant was involved in criminal activity and carrying a weapon. Therefore, the fruit of the patdown search – a black graffiti marker – was lawfully obtained, and the trial court properly denied appellant’s motion to suppress that evidence. Appellant also contends some of his probation conditions are unconstitutional, and the court lacked authority to set the maximum term of his confinement. As the Attorney General concedes, the latter claim has merit. We will therefore modify the judgment to strike the maximum confinement term. In all other respects, we affirm.
FACTS AND PROCEDURAL BACKGROUND
On March 12, 2016, shortly after 7:00 p.m., La Habra Police Officer Kim Razey and his partner were on patrol when they received a series of dispatches over their radio. The dispatches relayed information that was being supplied by an anonymous caller (AC). The first dispatch reported the AC had seen somebody writing graffiti on a street sign near First and Euclid. More particularly, the AC described two subjects who were involved in that activity, a man in his mid-20’s who was wearing a gray sweatshirt with black shorts, and a heavyset female who was wearing a gray top and blue jeans.
As Razey was driving to that area, he continued to receive updates about the suspects’ location. According to the AC, the suspects passed the 7-Eleven on Euclid, turned west on La Habra Boulevard, and were walking in front of a used clothing store. Sure enough, when Razey arrived at that location, he saw a male and a female who generally matched the AC’s description of the suspects. Razey did not recognize the female, who was about 15 or 16 years old, “a little on the heavier side,” and wearing a gray top and leggings. But he immediately recognized the male as appellant, who was 16 years old and sporting a hooded sweatshirt.
Based on his police experience, Razey knew appellant was a member of the Monos criminal street gang. In fact, Razey had previously arrested appellant for graffiti activity. He also knew appellant had been arrested in 2014 for assault with a deadly weapon and a gang enhancement. Razey was also familiar with the area where appellant and his companion were walking. He knew it was claimed by the Monos and rife with the gang’s graffiti, and he knew many Monos members had been arrested in that area for engaging in violent criminal activity.
Razey activated his emergency lights and pulled up in front of appellant and his companion, who stopped walking. Then Razey and his partner exited their vehicle and contacted the suspects on the sidewalk. Razey asked appellant where he was coming from, and appellant said his house, which was not far away. Then the officer asked appellant if he had any weapons or drugs on him, and appellant said no. When Razey asked appellant if he could pat him down to make sure, appellant did not respond. Nonetheless, Razey patted him down on the sidewalk.
During the patdown, Razey felt a hard, cylindrical object in the front pocket of appellant’s sweatshirt. Razey could not tell for sure what the object was, but he suspected it was either a graffiti marker or a smoking pipe. When he asked appellant what it was, appellant did not say anything, so he seized the object, which turned out to be a black marker. Prior to this time, Razey did not attempt to verify the AC’s report about a street sign being vandalized in the area, nor did he see appellant engage in any suspicious behavior.
Appellant was charged in juvenile court with gang-related vandalism. Before trial, he moved to suppress the black marker on the basis he was illegally detained and patted down. At the suppression hearing, Razey testified the main reason he patted appellant down is because he was a gang member who had previously been arrested for assault with a deadly weapon. Razey also knew from his experience that gang members often carry weapons for their protection.
On cross-examination, Razey admitted that when he stops a suspect and asks him if he has a weapon or narcotics, it doesn’t matter how the suspect responds – Razey is going to pat him down “just to make sure we’re both safe.” Razey said that is his standard procedure in every detention situation, even if the suspect is not a gang member. However, he also said that when he frisked appellant in this case, it was not pursuant to any sort of “blanket policy of just patting people down.”
Irrespective of Razey’s subjective intentions, the trial court found his actions in stopping and frisking appellant were objectively reasonable under the Fourth Amendment. It therefore denied the motion to suppress. Appellant then admitted the allegations in the wardship petition and was placed on probation subject to various terms and conditions.
DISCUSSION
Fourth Amendment Issues
Appellant claims Razey lacked legal justification to stop him or pat him down. We disagree.
A police officer may lawfully stop and frisk a subject if he has reasonable suspicion to believe “criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous[.]” (Terry v. Ohio (1968) 392 U.S. 1, 30.) When, as here, the purported justification for a stop and frisk stems from an anonymous tip, we must determine “whether the tip, as corroborated by independent police work, exhibited sufficient indicia of reliability to provide reasonable suspicion[.]” (Alabama v. White (1990) 496 U.S. 325, 326-327.) In other words, both the tip and the circumstances surrounding it, i.e. “‘the whole picture,’ . . . must be taken into account when evaluating whether there is reasonable suspicion.” (Id. at p. 330, quoting United States v. Cortez (1981) 449 U.S. 411, 417.)
The AC’s tip here was generally reliable in terms of identifying appellant and his companion. Not every detail of the tip turned out to be right, but the AC correctly identified the suspects’ location and also supplied accurate information about what they looked like and how they were dressed. But of course, that information would have been readily available to anyone who was in the suspects’ vicinity. To rise to the level of reasonable suspicion, an anonymous tip must do more than merely provide “‘a range of details relating . . . to easily obtained facts and conditions existing at the time of the tip[.]” (Alabama v. White, supra, 496 U.S. at p. 332.) Absent police corroboration of the criminal element described therein, the tip must supply information about the suspects’ future conduct that is “‘not easily predicted.’ [Citation.]” (Ibid.) In that situation, it is reasonable to believe the tipster has special familiarity with the suspects’ affairs so as to render the allegation of criminal activity reliable. (Compare ibid. [anonymous tip provided reasonable suspicion for suspect’s detention because it not only described her car and location, it also accurately predicted when and where she would be traveling with alleged drug stash] with Florida v. J.L. (2000) 529 U.S. 266 [anonymous tip failed to provide reasonable suspicion to stop a man who was reported to be carrying a gun at a bus stop because it contained no predictive information about the suspect].)
In this case, the police did not corroborate the AC’s tip about the alleged graffiti activity before detaining appellant, nor did the tip itself provide any predictive information that, if corroborated, would have suggested the AC had special knowledge about appellant’s affairs. Thus, standing alone, the tip did not provide reasonable suspicion for appellant’s detention.
However, in addition to the tip, Razey knew appellant was a member of a local gang that demarked its territory by writing graffiti throughout the area where appellant’s detention occurred. Razey was also aware that appellant had been involved in “vandalism graffiti cases in the past.” In fact, during one of his prior contacts with appellant, Razey arrested appellant for engaging in graffiti activity. This background information about appellant and his gang was relevant to the reasonable suspicion equation. (See In re Stephen L. (1984) 162 Cal.App.3d 257 [suspect’s gang affiliation and presence in park where graffiti activity was known to occur contributed to reasonable suspicion for his detention].) It put the AC’s tip in a new light and effectively corroborated the AC’s allegation that appellant was involved in graffiti activity before the police detained him. (See generally People v. Dolly, supra, 40 Cal.4th at p. 464 [the reliability of an anonymous tip depends on all of the circumstances presented].)
Appellant correctly notes, “Mere membership in a criminal street gang, without additional facts supporting an inference of criminal activity, does not permit a detention.” (People v. Hester (2004) 119 Cal.App.4th 376, 392.) But here we have additional facts in the form of an anonymous tip, appellant’s prior participation in the illegal activity described in the tip, and appellant’s presence in a high-crime area known for precisely this type of criminal activity reported. Considered as a whole, the circumstances provided reasonable suspicion for appellant’s detention. (United States v. Perkins (4th Cir. 2004) 363 F.3d 317; United States v. Mitchell (7th Cir. 2001) 256 F.3d 734; In re Richard G. (2009) 173 Cal.App.4th 1252.)
The circumstances also justified Razey’s decision to pat appellant down for weapons. “[A]n officer has the authority to conduct a reasonable search for weapons where that officer has reason to believe a suspect is armed and dangerous, regardless of whether he has probable cause to arrest the individual for a crime. [Citation].” (People v. Avila (1997) 58 Cal.App.4th 1069, 1074.) “The purpose of this limited search is not to discover evidence of crime, but to allow the officer to pursue his investigation without fear of violence[.]” (Adams v. Williams (1972) 407 U.S. 143, 146.) Because the touchstone of the Fourth Amendment is reasonableness, the officer need not be certain the suspect is armed; the test 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.)
When Razey approached appellant in this case, he knew appellant was a member of a violent gang, he knew gang members often carry guns for protection, and he knew he was contacting appellant when he had likely just committed a crime. He also knew appellant had been arrested for assault with a deadly weapon within the past two years. Viewed objectively, these facts would lead a reasonably prudent man to believe appellant might well be armed and dangerous. (United States v. Perkins, supra, 363 F.3d 317; United States v. Mitchell, supra, 256 F.3d 734; In re Stephen L., supra, 162 Cal.App.3d 257.) Therefore, regardless of Razey’s motives or standard practices, the patdown was legally justified. (See generally Whren v. United States (1996) 517 U.S. 806 [Fourth Amendment issues are analyzed based on an objective standard of reasonableness, not the officer’s subjective intentions].)
In a related argument, appellant contends that if his attorney had objected on Harvey-Madden grounds to the anonymous tip and the testimony regarding his prior arrest, there would have been insufficient evidence for Razey to stop and frisk him. (See People v. Harvey (1958) 156 Cal.App.2d 516; People v. Madden (1970) 2 Cal.3d 1017.) Therefore, his attorney was ineffective for failing to object on this basis. The claim is speculative.
The Harvey-Madden rule provides that “‘while it may be perfectly reasonable for officers in the field to make arrests on the basis of information furnished to them by other officers, “when it comes to justifying the total police activity in a court, the People must prove that the source of the information is something other than the imagination of an officer who does not become a witness.” [Citations.]’” (People v. Madden, supra, 2 Cal.3d at p. 1021.)
Here, Razey did not have personal knowledge about the contents of the anonymous tip or appellant’s prior arrest, so he had to rely on other sources for that information. However, if defense counsel had objected on this basis, it is entirely likely that the prosecution would have been able to prove the source of that information was something other than the tipster’s or an officer’s imagination. A cursory search of police records would have turned up the names of the officers involved in the earlier arrest. It is also possible that defense counsel was aware of the prosecution’s ability to do this, which would explain why he did not object on Harvey-Madden grounds. Because the record is silent on these issues, we are in no position to second-guess defense counsel’s actions. His failure to interpose a Harvey-Madden objection does not prove he was ineffective. (See People v. Mendoza Tello (1997) 15 Cal.4th 264, 267 [an “appellate court should not . . . brand a defense attorney incompetent (at a suppression hearing) unless it can be truly confident all the relevant facts have been developed”].)
It is also worth noting that “[w]here, as here, the evidence and the reasonable inferences flowing from it show that the police dispatcher actually received a telephone report creating a reasonable suspicion of criminal wrongdoing, it is not necessary to require strict compliance with the ‘Harvey–Madden’ rule. (People v. Orozco (l981) 114 Cal.App.3d 435, 444 . . . [original telephone call of shooting corroborated by the detaining officer finding spent cartridges at the scene of the detention], People v. Johnson (1987) 189 Cal.App.3d 1315, 1320 . . . [original telephone call of burglary corroborated by the detaining officer seeing two suspects matching the detailed descriptions at or near the scene of the burglary].) Of course, it is theoretically possible for officers to ‘manufacture’ probable cause or reasonable suspicion. Stripped of polite euphemism, we acknowledge that officers could commit the crime of making a false report of a criminal offense. (See, Pen. Code, § 148.5.) But this prospect seems remote, given their resulting exposure to criminal prosecution, civil liability and administrative sanction, including dismissal from the police department.” (In re Richard. G., supra, at pp. 1259-1260.) That seems especially true where all this would be put at risk for a misdemeanor juvenile case. Suffice it to say, appellant would have a very hard time proving ineffective assistance of counsel based on the absence of a Harvey-Madden objection in this case.
Probation Conditions
Appellant also contends some of his probation conditions are unconstitutional. The conditions at issue generally prohibit appellant from: 1) using or associating with people who use illegal drugs, alcohol or inhalants; 2) associating with other Monos members or anyone he has met in a county institution; and 3) possessing weapons and ammunition or remaining in any car where those items are present. Appellant argues these conditions are unduly vague and must be modified to include a knowledge requirement, otherwise he could violate them unwittingly.
However, in People v. Hall (2017) 2 Cal.5th 494, the California Supreme Court ruled that because probationers cannot be found in violation of their probation unless they knowingly violate a term thereof, “probation conditions already include an implicit [knowledge] requirement[,]” thereby providing probationers “fair notice” of the conduct that is required of them. (Id. at p. 497.) Thus, there is no need to modify appellant’s probation conditions to expressly include that requirement. (Id. at p. 503.)
Appellant also argues his probation conditions are overbroad because they prohibit behavior that may be legal and necessary, such as taking prescription medicine to treat a medical problem. But appellant’s probation conditions do not proscribe that conduct. While they bar him from using “illegal drugs” or associating with people who possess “illegal intoxicants, narcotics or drugs,” there is no ban on him taking prescription medications. In fact, the terms of his probation even allow appellant to inject drugs into his body if he is “directed to do so by a medical doctor.” As there is no danger of appellant being found in violation of his probation for using a prescribed medicine, his overbreadth argument is unavailing. He has failed to prove the conditions of his probation are unconstitutional.
Maximum Term of Confinement
Appellant has correctly identified one error in the judgment, however. Indeed, he and respondent agree the juvenile court erred in setting the maximum term of his confinement, should he violate probation. Given that the court did not order appellant to be removed from the custody of his parents, it lacked the authority to calculate that term. (Welf. & Inst. Code, § 726, subd. (d)(1); In re A.C. (2014) 224 Cal.App.4th 590;
In re Matthew A. (2008) 165 Cal.App.4th 537; In re Ali A. (2006) 139 Cal.App.4th 569.) We will therefore strike it from the record.
DISPOSITION
The juvenile court’s order setting the maximum term of appellant’s confinement is stricken. In all other respects, the judgment is affirmed.



BEDSWORTH, ACTING P. J.

WE CONCUR:



ARONSON, J.



THOMPSON, J.