In re Luis E. CA4/1 ( 2015 )

Filed 7/20/15 In re Luis E. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re LUIS E., a Person Coming Under the
Juvenile Court Law.
D067159
THE PEOPLE,
Plaintiff and Respondent, (Super. Ct. No. J234699)
v.
LUIS E.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County, Robert J.
Trentacosta, Judge. Affirmed.
Reed Webb, under appointment by the Court of Appeal, for Defendant and
Respondent.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Eric A. Swenson and Daniel Hilton, Deputy Attorneys General, for Plaintiff and
Respondent.
BACKGROUND
At approximately 5:20 p.m. on August 28, 2014, uniformed San Diego Police
Officer Zach Pfannenstiel was on patrol with another officer, in a marked patrol car, in
the area of 32nd and Commercial in San Diego. They were assigned to the gang
suppression team, which was conducting "saturation patrol, fourth amendment waivers,
[and] probation searches," in certain areas of the city, including the area around 32nd and
Commercial. Pfannenstiel regarded the area as a problem area because of people
drinking and smoking on the trolley platforms, and because citizens had asked the police
to specifically monitor the local trolley stops and platforms. Pfannenstiel knew those
particular stairs were a "hangout" and they often checked the stairway to see whether
there were individuals sitting in the middle of the stairs, blocking pedestrian traffic.
As he was patrolling, Pfannenstiel saw three individuals sitting in the middle of
the stairway that connects the Imperial Avenue sidewalk and the raised trolley platform.
The three individuals appeared young, between the ages of 17 to 20 years old. They were
blocking the stairway and smoking. There was no ashtray located near the three
individuals. There was graffiti located nearby.
Pfannenstiel was aware there was a municipal code section stating individuals
were not allowed to block a sidewalk to pedestrian traffic, and he was also aware that
smoking on the stairs violated Vehicle Code section 23111. He decided to investigate
what could be possible violations of those offenses. Pfannenstiel's partner made a U-turn
and parked their patrol car near the stairs.
As soon as they saw the patrol car park at the curb near the bottom of the stairs,
the three individuals ran up the stairs and onto the raised trolley platform. Both officers
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yelled for them to stop and when they ignored the officers' orders, the officers pursued
them. Two of the three individuals were caught and detained by the officers. Jonathan
Deguzman, a third officer who arrived at the scene, caught up with and detained
appellant. He handcuffed appellant. He told appellant he was not under arrest but
Deguzman patted appellant down for weapons. No weapons were found. After a record
check revealed appellant was a juvenile on probation, he was searched. In appellant's
right front pants pocket Pfannenstiel found a battery powered etching tool. It was a
metal, handheld device that could be used to etch items like mirrors and windows. The
device was sharpened and in working order. Pfannensteil was able to use it to etch a line
on handcuffs. The officers knew the device was illegal. Appellant generally admitted the
device was illegal but did not know why he had it.
The San Diego County District Attorney's Office filed a delinquency petition
alleging that appellant came within the provision of Welfare and Institutions Code section
602, subdivision (a), in that he committed two felonies, i.e., delaying a public officer in
the discharge of his duties in violation of Penal Code1 section 148 (count 1); and
possession of a masonry and glass drill bit with the intent to commit vandalism or graffiti
in violation of section 594.2, subdivision (a) (count 2).
On November 20, 2014, the juvenile court denied appellant's motion to suppress
and sustained as true the allegations in counts 1 and 2. Appellant was declared a ward of
the court pursuant to Welfare and Institutions Code section 726, subdivision (a)(3). He
was committed to the Breaking Cycles program for a period not to exceed eight months.
Appellant filed a timely notice of appeal.
1 Unless otherwise specified all further references will be to the Penal Code.
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DISCUSSION
Appellant's sole argument on appeal is that the officers had no legal justification to
detain him. We disagree.
Whether a seizure is proper is a mixed question of law and fact. We review the
findings of fact under the substantial evidence standard and then decide the ultimate
question of constitutionality de novo. (People v. Zamudio (2008) 43 Cal.4th 327, 342.)
Under this standard we must uphold the trial court's express and implied factual findings
which are supported by substantial evidence. (People v. Lawler (1973) 9 Cal.3d 156,
160.) We then independently evaluate as a question of law, whether the seizure or search
conforms to the constitutional standard of reasonableness. (People v. Glaser (1995) 11
Cal.4th 354, 362.)
The facts of this case are not complicated. The officers were patrolling a problem
area involving gang activity. When they saw appellant, he was with two companions,
they appeared between the ages of 17 and 20. The three of them were sitting as a group,
blocking a pedestrian access to the trolley platform, which the officers believed in effect
was tantamount to blocking the sidewalk. This was a violation of San Diego Municipal
Code section 52.53. The three also appeared to be smoking and flicking ashes onto the
area next to the street, a violation of Vehicle Code section 23111, which prohibits
discarding ash onto "any road or highway or adjoining area." As soon as the appellant
and his two companions saw the officers park their car, they ran.
The court determined the detention and arrest of appellant did not violate his
Fourth Amendment rights. He fully set forth the basis for his decision. As he stated,
when the officers pulled up, they saw appellant and his companions, who appeared to be
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minors, smoking and depositing ash. The officers were patrolling a high crime area. The
officers then attempted to contact and investigate. They were not able to do this because
once they were seen by appellant and his companions they ran from the area despite
direct orders to stop. Once appellant and his companions were apprehended and it was
discovered he was on probation he was searched and the engraving tool was found.
We conclude the evidence presented provides substantial evidence to support the
factual findings of the trial court. We likewise independently agree with the legal
conclusion reached by the trial court. There was no violation of appellant's Fourth
Amendment rights.
Contrary to appellant's argument on appeal, he was not simply sitting on a
stairway. He and his companions were blocking a pedestrian stairway in a high crime
area. This activity was one specifically complained of by the public and known as a
problem by the officers. Given their apparent youth and the appearance that in addition
to blocking public access they were smoking and depositing ash in the area, in violation
of the law, the officers were justified in making an investigatory stop. We conclude the
totality of facts known to the officers and their experience in the particular high crime
area provided objective manifestation criminal activity was afoot. (Terry v. Ohio (1968)
392 U.S. 1.)
In the process of beginning the investigatory stop, appellant and his companions
fled. Although appellant is correct that individuals stopped by the police may elect to go
about their business, unprovoked flight may be indicative of consciousness of guilt, and
serve as a key factor in detaining the subject. (In re H.M. (2008) 167 Cal.App.4th 136,
145; People v. Osborne (2009) 175 Cal.App.4th 1052, 1057-1058.) The flight here
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prevented the officers from conducting a justifiable contact to determine the degree to
which the juveniles were engaging in illegal activity. Because the police inquiry into
appellant's activities was proper, the attempt to avoid or delay the investigation amounted
to illegal delay of the officers' discharge of their duties. (See People v. Allen (1980) 109
Cal.App.3d 981, 985-986.)
We are not convinced by appellant's argument that the officers could not detain
him unless they knew for certain that he was under the age of 18. Appellant was detained
in large part because he fled from the officers, who were acting in the proper discharge of
their duties.
DISPOSITION
The judgment is affirmed.
BENKE, Acting P. J.
WE CONCUR:
McDONALD, J.
IRION, J.
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