In re C.C. CA1/4 ( 2016 )

Filed 7/14/16 In re C.C. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re C.C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
C.C., A145797
Defendant and Appellant. (San Mateo County
Super. Ct. No. JV83668)
Appellant C.C., a ward of the juvenile court, admitted to violating a term of his
probation barring him from consuming alcohol. Following that admission, his
probationary term was extended on stricter terms than those originally imposed. He
now appeals. Appellant’s appointed counsel on appeal has filed an opening brief
asking this court to conduct an independent review of the record as required by People
v. Wende (1979) 25 Cal. 3d 436 (Wende). Although appellant has been advised of his
right to file a supplemental brief on any points he may wish to address with us directly,
he has not availed himself of that right. Having conducted a full-record review, we find
no issues that merit briefing. We therefore affirm.
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I. FACTUAL AND PROCEDURAL BACKGROUND
A. Wardship and Terms of Probation
Appellant was declared a ward of the juvenile court on May 8, 2014, after
the court sustained misdemeanor charges from multiple petitions filed pursuant to
Welfare and Institutions Code section 602.1 On that same date, he was placed on in-
home probation. As one of the conditions of probation, appellant was prohibited
from using, possessing, or being under the influence of any alcohol.
On June 19, 2015, the San Mateo County District Attorney filed a notice of
probation violation pursuant to section 777, subdivision (a). The notice alleged
appellant violated the terms of his probation by consuming alcohol on June 13, 2015.
Appellant sought to defend against this section 777 charge by moving under Penal
Code section 1538.5 to suppress evidence gathered by the police in connection with
his detention and arrest on the day he was allegedly found intoxicated. The
evidence adduced by the parties at the motion to suppress hearing was, respectively,
as follows.
B. The Prosecution’s Case
At 7:00 p.m., on June 13, 2015 Officer Brian Blake, a South San Francisco
police officer and a member of the San Mateo County Gang Task Force, was
working on a report at the station. At that time, he heard over the radio a call
regarding a gun. He did not hear the actual 911 call, but rather the dispatcher’s
report of the call. As relayed by the dispatcher, the 911 call reported a fight in the
600 block of Railroad in South San Francisco involving several males, one with a
gun. The caller identified the combatants as four or five Hispanic males wearing
red and white. The men were seen fighting, and then fleeing. This was an area that
had recently received a lot of attention due to rival gang activity.
From the station, Officer Blake drove toward the designated area. While he
was on the way, other officers reported that “no subjects were seen in the
1
All further statutory citations are to the Welfare and Institutions Code.
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immediate area of [the] call,” so Officer Blake “was on the lookout of the wider
perimeter area.” In the 800 block of Commercial, about four blocks away from the
600 block of Railroad, he saw four or five males, wearing red, white, and black and
walking northbound on Commercial, which was away from the call area. Officer
Blake did not see anyone else in the area.
Officer Blake believed the individuals he saw matched the description the
caller had provided, so he turned his patrol car around with the intention of stopping
the group. Once he turned around, one of the individuals crossed the street and left
the area in a car that had been parked on the street. The others in the group “quickly”
went inside a house on that block of Commercial. According to Officer Blake, “it
appeared apparent that [he] was going to contact them and that they were evading.”
Officer Blake, with the help of a cover officer, Officer Perez, went to the
house that the group entered. Their purpose was to investigate the gun-involved
fight reported to have occurred a few blocks away. At the front door, Officer Blake
told the people inside what he was investigating and for officer-safety reasons
ordered everyone outside. Both Officer Blake and Officer Perez had their guns
drawn. For about one minute, there was argument between Officer Blake and some
of the occupants of the house, and then seven to nine people came out of the house.
Appellant was one of the people who came out of the house in response to
Officer Blake’s order. He was first contacted by law enforcement outside of the
house. Officer Blake could not identify appellant as one of the four or five people
he saw walking on the street. Appellant was wearing a white t-shirt and black
jeans. Seven or eight officers were at the scene when the individuals were outside
of the house. Officer Blake never saw a gun on anyone.
After appellant came out of the house, an officer noted that his eyes were
bloodshot and watery, that he had trouble standing steady, and that he smelled of
alcohol. The officer asked appellant if he had been drinking, and appellant replied,
“I’ve just been sippin.” After his arrest, appellant was transported to the hospital
for testing.
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C. The Defense Case
Ruben Regalado lives at 864 Commercial in South San Francisco with his
girlfriend, Yvonne Sicairos. Mr. Regalado was in the back laundry room at
approximately 7:00 p.m., on June 13, 2015. That day he had friends and family
over for a barbecue and appellant was one of his guests for the barbecue.
When Mr. Regalado heard the police, he went to the front door. At this time,
appellant was sleeping on the couch. The police officers were pointing their guns at
the house. Mr. Regalado and others went outside based upon an officer’s order, and
sat on the curb as directed. He and appellant were the last people out of the house.
After ordering all the occupants out of the house at gunpoint, the officers told him
they were investigating a fight with a gun that happened four blocks away. Once
outside, Mr. Regalado saw appellant handcuffed.
D. Disposition of the Section 777 Proceeding, Followed By This
Appeal
In support of the motion to suppress, appellant, invoking Fourth Amendment
standards, argued that the officers’ warrantless entry into the house at 864
Commercial was an illegal search and that the detention of appellant was an illegal
seizure. The thrust of his argument was that all the officers knew was that, four
blocks away, there had been a fight involving various individuals, who by description
could be identified only by their clothing color and ethnicity, and that someone had a
gun. Based on this limited information, reported to the officers second-hand by the
dispatcher, appellant’s counsel contended, “I don’t believe that the people have met
their burden that there is a reasonable and articulable suspicion that anybody,
especially [appellant], is involved in what happened four blocks away, and . . . ten
minutes earlier. ¶ . . . I think what is more egregious with respect to entering the
home . . . , there needs to be exigent circumstances absent a warrant. We don’t have
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that. There are not exigent circumstances.”2
The court disagreed. At the conclusion of the section hearing on July 9,
2015, it ruled, “The motion is denied. There were circumstances that warranted
asking everyone to get out of the house.” On July 13, 2015, following denial of his
motion to suppress, appellant admitted violating probation by consuming alcohol.
On that same day, he was continued as a ward of the court on probation. (Ibid.) He
was ordered detained for sixty days, and ordered to serve an additional sixty days of
house-arrest or electronic monitoring following his release from the Youth Services
Center.
A timely notice of appeal from the court’s dispositional order was filed on
July 23, 2015. Appellant’s counsel filed a brief under Wende, supra, 25 Cal. 3d 436,
and to assist us in our independent review of the record, noted the following issues in
the record that might arguably support the appeal (see Anders v. California (1967)
386 U.S. 738, 744): (1) Is the Fourth Amendment exclusionary rule applicable in
juvenile violation of probation hearings under section 777? (2) Did law enforcement
have a reasonable suspicion that appellant had been involved in the criminal activity
described in the 911 call, as necessary to lawfully detain appellant, by ordering him
out of the house at gun point? (3) Was appellant under de facto arrest when he was
ordered out of the house at gun point, ordered to sit on the curb, and handcuffed?
And if yes as to this third issue, was there probable cause to support the arrest?
II. DISCUSSION
Having conducted an independent review of the record on appeal under
People v. Wende, supra, 25 Cal. 3d 436, and considered whether there are any
arguable issues that merit briefing, we find none.
In the course of our review, we have taken into account the specific issues
2
Appellant made no objection to the prosecution’s reliance on anonymously
reported information relayed from the dispatcher under the Harvey-Madden rule. (See
People v. Romeo (2015) 240 Cal. App. 4th 931, 942).
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appellant’s appointed counsel identified as potentially arguable. In accordance with
People v. Kelly (2006) 40 Cal. 4th 106, 110, we note that (1) “although section
1538.5 continues to provide the exclusive procedure by which a defendant may seek
suppression of evidence obtained in a search or seizure that violates ‘state
constitutional standards,’ a court may exclude the evidence on that basis only if
exclusion is also mandated by the federal exclusionary rule applicable to evidence
seized in violation of the Fourth Amendment” (People v. Lazlo (2012) 206
Cal. App. 4th 1063, 1072 (Lazlo)), and (2) even assuming inculpatory evidence was
obtained in this case in violation of the Fourth Amendment, under “federal
constitutional principles, . . . the evidence obtained [was] nonetheless admissible to
establish a probation violation.” (Id. at p. 1069; see In re D.J. (2010) 185
Cal. App. 4th 278, 284 [section 777 proceedings are “the juvenile court equivalent of
probation revocation proceedings in adult criminal cases”]; People v. Harrison
(1988) 199 Cal. App. 3d 803, 811 [“federal law does not require application of the
exclusionary rule to probation revocation hearings”]; People v. Nixon (1982) 131
Cal. App. 3d 687, 691, 693–694 [same].) Accordingly, absent “police conduct
[that] . . . shocks the conscience” (Lazlo, supra 206 Cal.App.4th at 1070), the
evidence gathered in connection with appellant’s detention and arrest on June 13,
2015 was admissible to prove a probation violation, notwithstanding any of the
Fourth Amendment issues raised in appellant’s motion to suppress. None of the
police conduct at issue in this case transgresses the “shocks the conscience” standard.
III. DISPOSITION
The juvenile court’s dispositional order of July 13, 2015 is affirmed.
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_________________________
Streeter, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Rivera, J.
A145797/In re C.C.
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