In re J.C. CA5

Filed 8/24/21 In re J.C. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re J.C., a Person Coming Under the Juvenile
Court Law.
THE PEOPLE, F081791
Plaintiff and Respondent, (Super. Ct. No. JJD071634)
v.
OPINION
J.C.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Juliet L.
Boccone, Judge.
Arthur L. Bowie, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Harry
Joseph Colombo, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P.J., Detjen, J. and DeSantos, J.
Minor, J.C., appeals from a disposition order continuing him as a ward of the
juvenile court, granting him probation, and committing him to the short term program.
On appeal, he argues that the juvenile court erred in denying his motion to suppress
because officers detained and searched him without reasonable suspicion of wrongdoing
in violation of the Fourth Amendment of the United States Constitution. The People
disagree. We affirm.
PROCEDURAL SUMMARY
On July 9, 2018, the Tulare County District Attorney filed a juvenile wardship
petition (Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD071634, alleging minor
committed burglary (Penal Code, § 459;1 count 1) grand theft (§ 487, subd. (a); count 2),
and vandalism in excess of $400 (§ 594, subd. (a); count 3). As to count 3, the petition
further alleged minor committed the offense for the benefit of a criminal street gang
(§ 186.22, subd. (b)(1)(A)).
On October 30, 2018, minor admitted counts 2 and 3 in exchange for dismissal of
count 1 and the gang allegation on count 3.
On December 11, 2018, the juvenile court held a disposition hearing. Minor was
adjudged a ward of the juvenile court and placed on probation.
On January 28, 2020, the Tulare County District Attorney filed a second juvenile
wardship petition (Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD071634 (second
petition), alleging minor committed burglary (§ 459; count 1).
On July 21, 2020, minor admitted the truth of the second petition. The juvenile
court ordered minor to return for a disposition hearing on August 25, 2020.
On August 4, 2020, the Tulare County District Attorney filed a third juvenile
wardship petition (Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD071634 (third
petition), alleging minor possessed a loaded firearm (§ 25850, subd. (a); count 1).
1 All further statutory references are to the Penal Code unless otherwise stated.
2.
On August 25, 2020, minor filed a motion to suppress evidence (Welf. & Inst.
Code, § 700.1).
On September 2, 2020, the Tulare County District Attorney filed an amended third
petition, alleging minor illegally possessed a concealed weapon (§ 29610).2
On September 8, 2020, the juvenile court held a jurisdictional hearing on the
amended third petition and resolved minor’s motion to suppress. The court denied
minor’s motion and found the petition true.
On September 11, 2020, the Tulare County District Attorney filed a fourth
juvenile wardship petition (Welf. & Inst. Code, § 602, subd. (a)) in case No. JJD071634
(fourth petition), alleging minor committed burglary (§ 459).
On September 15, 2020, minor filed a notice of appeal.3
On September 29, 2020, minor admitted the truth of the fourth petition. On the
same date, the juvenile court continued minor as a ward of the court, placed him on
probation, and committed him to the short term program (180 days).
FACTUAL SUMMARY4
On July 31, 2020, Tulare County Sheriff’s Sergeant Hector Rodriguez was the
supervisor of the Tulare Area Gang and Narcotics Enforcement Team (TAGNET). He
and three or four detectives were on patrol in Orosi “working gang suppression.” At
around 8:50 p.m., he was near the intersection of Ralph and Miller Avenues when he saw
two juveniles walking west along the north sidewalk. Rodriguez described the area as
being known for gang activity. He illuminated the juveniles with a spotlight on his
vehicle and recognized minor as one of the juveniles based on his prior contacts.
2 The amended petition did not reallege possession of a loaded firearm.
3 On December 18, 2020, we deemed the prematurely filed notice of appeal “timely
filed immediately after the disposition hearing on September 29, 2020.”
4 The factual summary is derived from the joint jurisdictional hearing and motion to
suppress hearing held on September 8, 2020.
3.
Specifically, Rodriguez knew minor and the other juvenile from a previous “shots-fired”
call. Minor was wearing long shorts and a baggy shirt that covered “past the zipper of his
shorts.” Rodriguez knew minor was a Sureño gang member and associated with other
Sureño gang members.
As Rodriguez drove his vehicle eastbound, he turned into the westbound lane,
continuing to illuminate minor and the other juvenile with his spotlight. Rodriguez exited
his vehicle approximately 10 feet from minor and the other juvenile. He noticed that
minor “had his hands in his [pants] pockets as if he was either retaining a weapon or
holding up his shorts ….” He directed minor to remove his hands from his pockets and
interlace his fingers behind his head. Rodriguez asked minor if he had anything he was
not supposed to have. Minor responded that he did. Rodriguez then “conducted a pat
search of [minor] because [he] was outnumbered two to one.” Rodriguez “immediately
went for [minor’s] waistband and for [the] pockets of his shorts because that is the area
that [is] more commonly where people conceal weapons ….” Rodriguez felt something
in minor’s pocket and saw what he recognized to be the butt of a handgun. He called for
backup and Sergeant Sanchez arrived less than a minute later. Sanchez took “a
.22 caliber, Smith and Wesson .22S” handgun from minor.
At the time Rodriguez and Sanchez searched minor, Rodriguez did not know
whether minor was on probation or subject to search terms.
DISCUSSION
Minor contends Rodriguez detained and searched him without a reasonable
suspicion that he was engaged in criminal activity. The People contend Rodriguez had
reasonable suspicion that minor committed a crime because he was in an area known for
gang activity, was a known Sureño gang member, and held his hands in his pockets as if
he was retaining a weapon or holding up his shorts. Minor contends the information
Rodriguez possessed did not provide reasonable suspicion of wrongdoing and amounted
to nothing more than a “hunch.” We agree with the People. A minor known to be gang
4.
member, wearing baggy clothing, walking with his hands in his pockets in a manner that
suggested he might be retaining a weapon, at night, along with another person, in an area
known for gang activity provides reasonable suspicion that the person is engaged in
criminal activity.
“In deciding whether relevant evidence must be suppressed, we look
exclusively to the requirements of the United States Constitution.
[Citation.] In reviewing a ruling on a suppression motion, we ‘defer to the
trial court’s factual findings, express or implied, where supported by
substantial evidence.’ [Citation.] ‘In determining whether, on the facts so
found [and/or facts that are undisputed], the search or seizure was
reasonable under the Fourth Amendment, we exercise our independent
judgment.’ [Citations.] The prosecution always bears the burden of
justifying, by a preponderance of the evidence, that a warrantless search or
seizure falls within a recognized exception to the warrant requirement.”
(People v. Gutierrez (2018) 21 Cal.App.5th 1146, 1152.)
“The Fourth Amendment to the United States Constitution, made applicable to the
states by the Fourteenth Amendment, guarantees the right to be free of unreasonable
searches and seizures.” (People v. Gallegos (2002) 96 Cal.App.4th 612, 622.) California
law applies federal constitutional standards to the review of search and seizure rulings.
(People v. Rogers (2009) 46 Cal.4th 1136, 1156, fn. 8.) Generally, police contact with
individuals in public places will fall into one of three categories: (1) a consensual
encounter, (2) a detention, and (3) an arrest. (People v. Bailey (1985) 176 Cal.App.3d
402, 405.) Detentions are “seizures of an individual which are strictly limited in
duration, scope and purpose, and which may be undertaken by the police ‘if there is an
articulable suspicion that a person has committed or is about to commit a crime.’ ”
(Wilson v. Superior Court (1983) 34 Cal.3d 777, 784; see Berkemer v. McCarty (1984)
468 U.S. 420, 439–440 [“ ‘[T]he stop and inquiry must be “reasonably related in scope to
the justification for their initiation.” ’ ”].) We consider the totality of the circumstances
in determining whether the particularized and objective facts known to the police
provided reasonable cause to detain the defendant. (People v. Souza (1994) 9 Cal.4th
5.
224, 237.) Where an investigative detention is warranted, “police may conduct ‘a
protective patdown search for weapons.’ ” (People v. Huggins, (2006) 38 Cal.4th 175,
242.)
“ ‘While “reasonable suspicion” is a less demanding standard than
probable cause and requires a showing considerably less than
preponderance of the evidence, the Fourth Amendment requires at least a
minimal level of objective justification for making the stop. [Citation.]
The officer must be able to articulate more than an “inchoate and
unparticularized suspicion or ‘hunch’ ” of criminal activity. [Citation.] [¶]
… An individual’s presence in an area of expected criminal activity,
standing alone, is not enough to support a reasonable, particularized
suspicion that the person is committing a crime. [Citation.] But officers
are not required to ignore the relevant characteristics of a location in
determining whether the circumstances are sufficiently suspicious to
warrant further investigation. Accordingly, … the fact that the stop
occurred in a “high crime area” [is] among the relevant contextual
considerations….’ ” (People v. Huggins, supra, 38 Cal.4th at pp. 241–242;
see People v. King (1989) 216 Cal.App.3d 1237, 1241 [“[T]he fact that an
area involves increased gang activity may be considered if it is relevant to
an officer’s belief the detainee is armed and dangerous. While this factor
alone may not justify a weapon search, combined with additional factors it
may.”].)
In addition to the location of the detention, courts also consider whether the stop
took place at night. (People v. Souza, supra, 9 Cal.4th at p. 241.) However, the location
of a suspect and time of day are insufficient to give rise to a reasonable suspicion that
criminal activity is afoot and the person to be searched is engaged in it; some additional
facts related to the person’s conduct must be present. (People v. Medina (2003) 110
Cal.App.4th 171, 178.) That the officers know the persons to be searched are gang
members and may have been involved in violent or firearm-related incidents in the past
may support conducting a patdown search. (In re H.M. (2008) 167 Cal.App.4th 136,
146–147 [a person’s suspicious behavior and previous contacts with law enforcement are
factors specific to the person to be searched that may support a reasonable suspicion that
the person searched possessed a weapon]; cf. People v. Hester (2004) 119 Cal.App.4th
6.
376, 389 [even when law enforcement expects retaliation against rival gang members,
individualized suspicion that the specific gang member to be searched has a weapon is
required].) Similarly, while police do not enjoy “carte blanche to pat down anyone
wearing baggy clothing,” “the wearing of baggy clothing, coupled with other suspicious
circumstances,” may furnish “the requisite facts to support a patdown for weapons.”
(People v. Collier (2008) 166 Cal.App.4th 1374, 1377–1378 & fn. 1.) Further, an officer
being outnumbered by suspects may support a patdown search for weapons. (See People
v. Castaneda (1995) 35 Cal.App.4th 1222, 1230.)
In In re Frank V. (1991) 233 Cal.App.3d 1232, officers observed two people in a
gang neighborhood, “leaving from the curb of a known gang house, one wearing a heavy
coat with his hands in his pockets.” (Id. at p. 1241.) An officer ordered the minor
wearing the heavy coat to remove his hands from his pockets. (Id. at p. 1237.) The
minor soon after attempted to place his hands back in his pockets. (Ibid.) An officer then
conducted a patdown search and discovered a firearm in a pocket of the jacket. (Ibid.)
The court of appeal found that minor “starting for his pockets again, after being told to
take his hands out, provided an ‘additional factor’ justifying a patdown search for
weapons.” (Id. at p. 1241; see also People v. Jordan (2004) 121 Cal.App.4th 544, 558
[“Where police officers follow up an anonymous tip and observe suspicious behavior, the
totality of the circumstances may generate a reasonable suspicion that justifies a Terry
stop and frisk.”].)
Here, when Rodriguez directed minor to remove his hands from his pockets, minor
complied. Minor did not reach for his pockets again. However, minor was a known
Sureño with another gang member or gang associate in an area known for gang activity.
When Rodriguez first approached and illuminated minor with his spotlight, minor had his
hands in his pockets “as if he was either retaining a weapon or holding up his shorts ….”
(§ 29610 [“A minor shall not possess a pistol, revolver, or other firearm capable of being
concealed upon the person.”].) Rodriguez was outnumbered by the minor and the other
7.
juvenile and noted minor wore baggy clothing that could conceal a weapon. On this
record, deferring to the trial court’s factual conclusions, we conclude that the totality of
the circumstances gave rise, based on articulable and specific facts, to a reasonable
suspicion that minor was armed and engaged in criminal activity.
DISPOSITION
The order is affirmed.
8.