In re Julio S. CA2/4

Filed 10/9/20 In re Julio S. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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 FOUR
In re JULIO S., a Person B296574
Coming Under the Juvenile
Court Law.
(Los Angeles County
THE PEOPLE, Super. Ct. No. TJ22988)
Plaintiff and Respondent,
v.
JULIO S.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Melissa N. Widdifield, Judge. Affirmed.
Holly Jackson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Acting Senior Assistant Attorney General, Steven D.
Matthews and J. Michael Lehmann, Deputy Attorneys
General, for Plaintiff and Respondent.
_________________________________________________
INTRODUCTION
A police officer detained appellant Julio S. on suspicion
of littering after seeing him throw something onto a public
sidewalk. The officer then retrieved the littered item, a
usable spray paint can which appellant admitted he had
possessed and discarded. Appellant was arrested and
charged with possession of an aerosol paint container with
the intent to commit vandalism or graffiti. Appellant moved
to suppress all evidence -- including his admission, the spray
paint can, and the officer’s observations -- on Fourth
Amendment grounds. No evidence other than the officer’s
undisputed testimony was presented at the suppression
hearing. The juvenile court denied the motion to suppress,
found true the allegation that appellant had possessed the
can with the specified intent, and ordered him committed to
the custody of the probation department for suitable
placement.
On appeal, appellant contends the juvenile court erred
in denying his motion to suppress because his detention was
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unsupported by reasonable suspicion of criminal activity.
We disagree and affirm.
PROCEEDINGS BELOW
In an August 2018 petition filed under Welfare and
Institutions Code section 602, the People alleged that
appellant, then a minor, possessed an aerosol paint
container with the intent to commit vandalism or graffiti.
(Pen. Code, § 594.2, subd. (a).) In September 2018, appellant
moved to suppress “all evidence, tangible and intangible,
including the aerosol paint container at issue in this case . . .
as well as all statements made by [appellant], and all
observations of police, resulting from an illegal detention,
arrest, search and seizure of [appellant] without a search
warrant . . . .” Opposing the motion, the prosecutor argued
that appellant had no standing to move to suppress the
container because he had abandoned it on a sidewalk before
his detention, and that his detention was supported by
reasonable suspicion of criminal activity because, inter alia,
the detaining officer had seen appellant discard the
container.
At the October 29, 2018 suppression hearing,
Huntington Park Police Department Officer Jose Macias
testified that while driving in his patrol car on August 13,
2018, around 10:00 p.m., he saw appellant and two other
males standing at the entrance of an alley near a restaurant
that was about to close for the night, “just standing there
looking left and right . . . .” He focused his attention on them
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because there had been “a couple of robberies in the city,”
and made a U-turn in order to pass by them again. As soon
as he drove past, they started walking in the opposite
direction. He made another U-turn and “monitored” them.
As he drew closer (but no closer than about 50 feet), he saw
appellant draw an item from his pocket and throw it onto the
sidewalk. He then detained appellant and his companions.
He testified, “My reason for stopping is littering.”1
After backup officers arrived, Officer Macias walked 50
to 75 feet to the location where appellant had discarded the
item, and discovered that the item was a usable spray paint
can. He asked appellant why he had thrown the can;
appellant responded that he had found it on the street and
had not wanted to get caught with it.2 “Based on
[appellant’s] age and the fact that he had a spray can,” the
officer arrested appellant for a violation of Penal Code
1 “It is unlawful to litter . . . in or upon public or private
property. A person . . . violating this section is guilty of an
infraction.” (Pen. Code, § 374.4, subd. (a).) “As used in this
section, ‘litter’ means the discarding, dropping, or scattering of
small quantities of waste matter ordinarily carried on or about
the person . . . in a place other than a place or container for the
proper disposal thereof . . . .” (Id., subd. (c).)
2 Appellant’s counsel objected to the admission of appellant’s
response on the ground that Officer Macias had not informed him
of his rights under Miranda v. Arizona (1966) 384 U.S. 436. The
prosecutor argued no Miranda warnings were required because
the detention was not a custodial interrogation, and the court,
evidently agreeing with the prosecutor, overruled the objection.
Appellant does not challenge this ruling on appeal.
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section 594.2, which he erroneously described as possession
of vandalism tools “by a minor.”3 On cross-examination,
Officer Macias testified that one of appellant’s companions,
Brian Jimenez, had a spray paint can in his waistband that
was “‘exactly similar’” to the one discarded by appellant. He
testified that he did not arrest Jimenez because, as an adult,
Jimenez had a legal right to possess a spray paint can.
No other evidence was presented. Appellant’s counsel
submitted on his moving papers. The prosecutor argued that
appellant had no standing to move to suppress the spray
paint can because he had abandoned it prior to its recovery
by Officer Macias, and that the officer’s observations
established “good cause” for the detention through which the
officer had obtained appellant’s admission that he had
possessed and discarded the can.
The juvenile court denied the motion to suppress. It
then immediately held an adjudication hearing, at which
Officer Macias testified to the same facts. The court found
3 Penal Code section 594.2 draws no distinction between
minors and adults. (Pen. Code, § 594.2, subd. (a) [“Every person
who possesses . . . an aerosol paint container . . . with the intent
to commit vandalism or graffiti, is guilty of a misdemeanor”].)
However, such a distinction is drawn in a similar statute. (See
id., § 594.1, subd. (e)(1) [“It is unlawful for any person under the
age of 18 years to possess . . . an aerosol container of paint for the
purpose of defacing property while on any public highway, street,
alley, or way, or other public place, regardless of whether that
person is or is not in any automobile, vehicle, or other
conveyance” (italics added)].
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true the allegation that appellant possessed an aerosol paint
container with the intent to commit vandalism or graffiti. At
a March 2019 disposition hearing, the court ordered
appellant removed from his guardian’s custody and
committed to the custody of the probation department for
suitable placement, with a maximum period of confinement
of one year. Appellant timely appealed.
DISCUSSION
Appellant contends the juvenile court erred in denying
his motion to suppress because his detention was
unsupported by reasonable suspicion of criminal activity.
A. Principles
“The Fourth Amendment protects against
unreasonable searches and seizures.” (People v. Casares
(2016) 62 Cal. 4th 808, 837, disapproved on another ground
by People v. Dalton (2019) 7 Cal. 5th 166.) “Minors charged
with violating the laws of the State of California pursuant to
Welfare and Institutions Code § 602 are entitled to move to
suppress any evidence seized as a result of a violation of the
minor’s fourth amendment rights.” (Caskey, Cal. Search &
Seizure (2020) § 1:17; see also ibid. [“With regard to the
substantive law of suppression, there is no meaningful
distinction between suppression motions in adult criminal
proceedings and in juvenile delinquency cases”].) “In
reviewing the trial court’s suppression ruling, we defer to its
factual findings if supported by substantial evidence. We
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independently assess the legal question of whether the
challenged search or seizure satisfies the Fourth
Amendment.” (People v. Brown (2015) 61 Cal. 4th 968, 975.)
A detention subject to Fourth Amendment
requirements “occurs when the officer, by means of force or
show of authority, has restrained a person’s liberty.” (People
v. Zaragoza (2016) 1 Cal. 5th 21, 56 (Zaragoza).) “[A]
detention must be supported by reasonable suspicion the
person is involved in criminal activity.” (Ibid.) “‘[T]he level
of suspicion the standard requires is “considerably less than
proof of wrongdoing by a preponderance of the evidence,”
and “obviously less” than is necessary for probable cause
[citation].’” (People v. Brown, supra, 61 Cal.4th at 981.)
Reasonable suspicion exists “‘when the detaining officer can
point to specific articulable facts that, considered in light of
the totality of the circumstances, provide some objective
manifestation that the person detained may be involved in
criminal activity.’” (People v. Casares, supra, 62 Cal.4th at
837-838.) Littering is a criminal activity. (Pen. Code,
§ 374.4, subd. (a) [“It is unlawful to litter . . . in or upon
public or private property. A person . . . violating this
section is guilty of an infraction”].)
B. Analysis
The juvenile court properly denied appellant’s motion
to suppress because none of the evidence he sought to
suppress was obtained as a result of an unreasonable search
or seizure. Officer Macias’s pre-arrest detention of appellant
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was reasonable.4 As appellant acknowledges, the officer
testified that he detained appellant on suspicion of littering
after he saw appellant discard a spray paint can onto a
sidewalk. No contrary evidence was presented. The officer’s
undisputed testimony established reasonable suspicion of
littering. (See Pen. Code, § 374.4, subd. (c).) Thus, appellant
fails to establish error in the juvenile court’s denial of his
motion to suppress the only evidence obtained as a result of
his detention, viz., his admission that he possessed and
discarded the can.
Appellant falls even shorter of establishing error with
respect to the other prosecution evidence, which was not
obtained as a result of his detention. Most of Officer
4 The reasonableness of appellant’s arrest is not at issue
because none of the evidence he sought to suppress was obtained
as a result of his arrest. Appellant nevertheless implies his
arrest was unreasonable, relying on the false premise that in
failing to arrest Jimenez (appellant’s adult companion found in
possession of an identical spray paint can), Officer Macias
revealed that he believed neither Jimenez nor appellant intended
to use their spray paint cans to commit vandalism or graffiti.
(See Pen. Code, § 594.2, subd. (a) [prohibiting possession of
aerosol paint container with such intent].) In fact, the officer’s
undisputed testimony established that he failed to arrest
Jimenez because he mistakenly believed that only minors could
be guilty of the offense for which appellant was arrested. (See
ibid. [prohibition applies to “[e]very person”].) Indeed, appellant
acknowledges that the officer “let [Jimenez] go because of his age
of majority.” The officer’s mistake regarding his authority to
arrest Jimenez is irrelevant to the reasonableness of his
pre-arrest detention of appellant.
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Macias’s inculpatory observations were obtained before the
detention, as a result of driving past and, briefly, behind
appellant. Appellant does not contend this brief monitoring
from a distance was a detention subject to Fourth
Amendment requirements, and it was not. (See Zaragoza,
supra, 1 Cal.5th at 56 [detentions occur through force or
show of authority]; People v. Brown (1990) 216 Cal. App. 3d
1442, 1445-1446, 1448 [where officers saw defendant in front
of dance hall, approached hall in their patrol car “without
any activity on their part that would indicate that they
intended to detain any one [sic],” left area when defendant
walked into hall, returned several minutes later to find
defendant in front again, and only then “yelled for defendant
to stop and chased him into the dance hall,” detention
occurred at time of yelling and pursuit].) The officer’s
observation that the discarded item was a usable spray paint
can followed appellant’s detention, but was not obtained as a
result of it. The officer merely walked on a public sidewalk
and retrieved the can from where appellant had discarded it
50 to 75 feet away, as the officer -- or anyone else -- could
have done even had appellant never been detained.5
5 Appellant challenges only his detention, without raising
any separate objection to the officer’s retrieval of the spray paint
can. In any event, he lacked standing to raise such an objection
because his admitted abandonment of the can on a public
sidewalk relinquished any possessory interest or expectation of
privacy in the can. (See Caskey, Cal. Search & Seizure, supra,
§ 2:10 [seizure of property occurs when government meaningfully
interferes with possessory interest], § 2:18 [“the [United States
(Fn. is continued on the next page.)
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In sum, most of the evidence appellant sought to
suppress was obtained without any search or seizure, and
the one exception -- appellant’s admission that he had
possessed and discarded the spray paint can -- was obtained
as a result of a reasonable detention. Because none of the
evidence was obtained as a result of an unreasonable search
or seizure, the juvenile court properly denied appellant’s
motion to suppress.
Supreme] Court has made it clear a person who discards or
throws away a container may lose any expectation of privacy they
once enjoyed. Such property is exposed to the public (including
law enforcement) regardless of whether the defendant’s intent
was merely to avoid being caught ‘red-handed’”].)
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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
WILLHITE, J.
COLLINS, J.
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