In re Tomas M.





























Filed 1/7/13 In
re Tomas M. CA2/2

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>NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS

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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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO




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In re TOMAS M., a Person Coming Under the Juvenile Court Law.	B238935 (Los Angeles County Super. Ct. No. FJ49876)
THE PEOPLE, Plaintiff and Respondent, v. TOMAS M., Defendant and Appellant.

APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. Cynthia Loo, Juvenile Court Referee. Affirmed as modified and remanded with
directions.

Bruce G. Finebaum, under appointment
by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, and Paul M. Roadarmel, Jr., Deputy Attorney General, for
Plaintiff and Respondent.

_________________

After the juvenile court denied
minor Tomas M.’s motion to suppress evidence under Welfare and Institutions
Code section 700.1, minor admitted that he had committed the crime of
possession of a firearm by a minor, a felony (Pen. Code, § 29610). The juvenile court sustained the petition
alleging this offense and declared minor a ward of the court pursuant to
Welfare and Institutions Code section 602.
The juvenile court ordered minor to undergo a midterm camp program and
listed minor’s terms and conditions of probation, which included tattoo
removal. The juvenile court set the
maximum period of confinement at three years and granted minor predisposition
credit of 33 days.href="#_ftn1"
name="_ftnref1" title="">[1]

Minor appeals on the grounds
that: (1) the juvenile court erred in
denying his motion to suppress evidence;
and (2) the juvenile court abused its discretion in imposing a probation
condition requiring minor to remove his tattoos.

FACTS

Prosecution
Evidence

During the afternoon of January 2, 2012, Los Angeles Police
Department Officer Justin Howarth was assigned to the Rampart gang enforcement
detail. As part of his duties, Officer
Howarth tracked gang membership, monikers, crimes and rivalries. He reviewed arrest reports for gang-related
arrests, and he conducted probation and parole compliance checks in the
area. On that day, he and his partner
were parked at a 7-Eleven store in a marked black-and-white police car at the
corner of Santa Monica Boulevard and Virgil Avenue. Officer Howarth was assigned to that
geographical area because it was claimed by La Mirada Locos, which was the
primary gang that Officer Howarth monitored.

As Officer Howarth caught up on his
paperwork, he observed minor walking toward the passenger side of the patrol
car where the officer was seated. He
first spotted minor at a distance of about 75 feet. Officer Howarth recognized minor from
previous contacts.href="#_ftn2"
name="_ftnref2" title="">[2] Officer Howarth knew minor was a gang member
from speaking with other gang members.
He knew minor had a large tattoo on his chest of the letters “L.M.,”
which stand for La Mirada.

Officer Howarth had eye contact with
minor as minor approached the patrol car.
When minor was at a distance of approximately 20 feet, he made a furtive
movement to his waistband and grabbed a bulky object. The object was under minor’s clothing and it
resembled a gun in shape. Based on his
training and experience, Officer Howarth believed minor was reaching for a
weapon in order to draw it out. Officer
Howarth and his partner communicated this belief to each other and rapidly got
out of the patrol car, drawing their weapons.
Officer Howarth was in a heightened state of awareness due to recent
shootings involving the La Mirada gang. He knew there were “outstanding guns” in the
neighborhood. In addition to believing
minor had a gun on him, the officer believed minor was closing distance with
the police car with the intent of engaging in a gun fight with him and his partner.


When the officers jumped out of
their car, minor made a 45-degree turn away from the officers and toward the
7-Eleven entrance. Officer Howarth gave
minor commands to turn around and put his hands behind his head. Minor kept walking toward the entrance and
ignored the officer’s commands. When
minor got to the entrance he complied.
Officer Howarth conducted a brief patdown search on minor’s front and
rear waistband and did not feel any objects.
Because of the people coming in and out of the store, he walked minor to
the police car for safety purposes.
Officer Howarth continued the patdown, heard a metallic “clink” sound,
and saw a revolver fall out of minor’s right pant leg. Officer Howarth did not know whether his
partner had his gun drawn while Officer Howarth walked minor to the police car
in handcuffs.

DISCUSSION

I. Validity of Search

A.
Minor’s Argument

Minor
contends that the People failed to establish objectively specific, articulable
facts upon which to find Officer Howarth’s initial detention of minor
reasonable. Therefore, since the initial
detention was illegal, the court erred in not suppressing the results of the
subsequent patdown search.

>B. Relevant Authority

“A detention
is reasonable under the Fourth Amendment 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. Souza (1994) 9 Cal.4th 224,
231.) “In United States v. Sokolow (1989) 490 U.S. 1, 7, the high court
reiterated its view that the ‘reasonable suspicion’ necessary to justify a
brief, investigative detention is a level of suspicion that is ‘obviously less
demanding than that for probable cause’ and can be established by ‘considerably
less than proof of wrongdoing by a preponderance of the evidence.’” (Id. at
p. 230; see also People v. Dolly
(2007) 40 Cal.4th 458, 463.)

In ruling on
a motion to suppress evidence, “the trial court (1) finds the historical facts,
(2) selects the applicable rule of law, and (3) applies the latter to the
former to determine whether the rule of law as applied to the established facts
is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of
these inquiries is, of course, subject to appellate review.’ [Citations.]
[¶] The court’s resolution of the
first inquiry, which involves questions of fact, is reviewed under the
deferential substantial-evidence standard.
[Citations.] Its decision on the
second, which is a pure question of law, is scrutinized under the standard of
independent review. [Citations.] Finally, its ruling on the third, which is a
mixed fact-law question that is however predominantly one of law, viz., the
reasonableness of the challenged police conduct, is also subject to independent
review. [Citations.] The reason is plain: ‘it is “the ultimate responsibility of the
appellate court to measure the facts, as found by the trier, against the
constitutional standard of reasonableness.’”
[Citation.]” (>People v. Williams (1988) 45 Cal.3d
1268, 1301.)

>C. Proceedings Below

After
hearing testimony and argument on the suppression motion, the trial court
recessed to research the cases suggested by counsel. The trial court subsequently ruled that the officers’
acts of handcuffing minor and moving him away from the door of the 7-Eleven
toward the police car were reasonable, and these acts did not elevate the
detention of minor to an arrest. The
trial court found the officers’ actions were justified, and it denied the
motion to suppress.

D.
Motion Properly Denied

We conclude that href="http://www.fearnotlaw.com/">substantial evidence supports the trial
court’s factual determinations. The
trial court has the power to decide “what the officer actually perceived, or
knew, or believed, and what action he took in response.” (People
v. Leyba (1981) 29 Cal.3d 591, 596.)
The trial court clearly credited the officer’s version of disputed
facts. The issue of the witness’s
credibility is a matter for the trial court that we will not disturb on
appeal. (People v. James (1977) 19 Cal.3d 99, 107.) The evidence of a single credible witness is
sufficient to prove a fact unless corroboration is required by statute. (DeMiglio
v. Mashore (1992) 4 Cal.App.4th 1260,
1270; Evid. Code, § 411.)

In addition,
under the totality of the circumstances, the factual record supports the trial
court’s conclusions that police action met the constitutional standard of
reasonableness (People v. Williams, >supra, 45 Cal.3d at p. 1301), and
Officer Howarth and his partner were justified in detaining minor and
conducting a patdown search. In >Terry v. Ohio (1968) 392 U.S. 1 (>Terry), the United States Supreme Court
upheld temporary detention for less than probable cause, and “a narrowly drawn
authority to permit a reasonable search for weapons for the protection of the
police officer, where he has reason to believe that he is dealing with an armed
and dangerous individual, regardless of whether he has probable cause to arrest
the individual for a crime.” (>Id. at p. 27.) “The officer need not be absolutely certain
that the individual is armed; the issue 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. [Citations.]” (Ibid.) Here, minor compounded his furtive movement
toward a bulky, gun-shaped object with evasive behavior. “Nervous, evasive behavior is a pertinent
factor in determining reasonable suspicion.”
(In re H.M. (2008) 167 Cal.App.4th
136, 144, citing Illinois v. Wardlow
(2000) 528 U.S. 119, 124.)

In addition,
Officer Howarth knew minor to be a gang member—one who wore his gang initials
writ large on his chest. “We cannot
overlook the reality that in the 40 years since Terry was decided, the problem of criminal street gangs has
escalated. It is common knowledge that
in Los Angeles, gangs have proliferated and gang violence is rampant. [Citation.] . . .
[¶] It is likewise common knowledge that
members of criminal street gangs often carry guns and other
weapons. . . . ‘No one immersed in the gang culture
is unaware of these realities, and we see no reason the courts should turn a
blind eye to them.’ [Citations.]” (In re
H.M., supra, 167 Cal.App.4th at
p. 146.) The fact that the officers were
stopped in the La Mirada gang’s territory strengthens the grounds for their
suspicion. The location of an encounter,
although not enough to establish reasonable suspicion, may be sufficient when
combined with other information available to the officer at the time of the
detention. (Illinois v. Wardlow, supra,
528 U.S. at p. 124.) “[T]hat 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.” (People
v. King (1989) 216 Cal.App.3d 1237, 1241.)

Our
decision also takes into account the officer’s training and experience in evaluating
particular situations. (>United States v. Cortez (1981) 449 U.S.
411, 418.) Officer Howarth was a gang
officer assigned to minor’s gang and had been assigned to that duty for two
years at the time of the hearing. Upon
seeing the object in minor’s waistband, a patdown search was undeniably proper,
since, as occurred in Terry, “nothing
in the initial stages of the encounter serve[d] to dispel his reasonable fear
for his own or others’ safety.” (>Terry, supra, 392 U.S. at p. 30.)
“Circumstances and conduct which would not excite the suspicion of the
man on the street might be highly significant to an officer who had had
extensive training and experience . . . .” (People
v. Superior Court of Yolo County (1970) 3 Cal.3d 807, 827.) “The possibility of an innocent explanation
does not deprive the officer of the capacity to entertain a reasonable
suspicion of criminal conduct. Indeed,
the principal function of his investigation is to resolve that very ambiguity
and establish whether the activity is in fact legal or
illegal. . . .” (>In re Tony C. (1978) 21 Cal.3d 888,
894.)

As aptly
stated in In re H.M., “‘“we must
allow those we hire to maintain our peace as well as to apprehend criminals
after the fact, to give appropriate consideration to their surroundings and to
draw rational inferences therefrom, unless we are prepared to insist that they
cease to exercise their senses and their reasoning abilities the moment they
venture forth on patrol.”
[Citation.]’ [Citations.]” (167 Cal.App.4th at p. 147.) And, “‘[f]ailure to cursorily search suspects
for weapons in a confrontation situation in an area where gang activity and
weapon usage is known from the officers’ past experience would be most
careless.’ [Citation.] Officers are not required to take unnecessary
risks in the performance of their duties.
[Citation.] When an officer
observes conduct giving rise to a reasonable suspicion an individual is
involved in criminal activity, and that activity occurs in an area known for
recent, violent gang crime, these facts together go a long way toward
establishing reasonable suspicion the individual is armed.” (Ibid.)

Exercising
our independent judgment, we agree with the trial court’s decision to deny
minor’s motion to suppress.

II. Probation Condition

>A. Minor’s Argument

Minor contends the
imposition of mandatory tattoo removal as a probation condition was an abuse of
discretion and unreasonable under People
v. Lent (1975) 15 Cal.3d 481 (Lent).


B.
Relevant Authority

Welfare and
Institutions Code section 730, subdivision (b), provides in pertinent
part: “When a
ward . . . is placed under the supervision of the probation
officer or committed to the care, custody, and control of the probation
officer, the court may make any and all reasonable orders for the conduct of
the ward. . . . The court may impose and require any
and all reasonable conditions that it may determine fitting and proper to the
end that justice may be done and the reformation and rehabilitation of the ward
enhanced.” The juvenile court thus
enjoys broad discretion to impose conditions of probation that will serve to
rehabilitate the minor. (>In re Sheena K. (2007) 40 Cal.4th 875,
889.) That discretion will not be
disturbed on appeal in the absence of manifest abuse. (In re
Josh W. (1997) 55 Cal.App.4th 1, 5.)

“A condition
of probation will not be held invalid unless it ‘(1) has no relationship to the
crime of which the offender was convicted, (2) relates to conduct which is not
in itself criminal, and (3) requires or forbids conduct which is not reasonably
related to future criminality . . . .’ [Citation.]
Conversely, a condition of probation which requires or forbids conduct
which is not itself criminal is valid if that conduct is reasonably related to
the crime of which the defendant was convicted or to future criminality.” (Lent,
supra, 15 Cal.3d 481, 486, fn.
omitted.) All three factors must be
present for a condition of probation to be invalid. (In re
Frank V. (1991) 233 Cal.App.3d 1232, 1242 [applying the >Lent factors to a juvenile
proceeding].) Even though conditions
that infringe on constitutional rights may not be invalid if tailored
specifically to meet the needs of a juvenile offender (In re Josh W., supra, 55
Cal.App.4th at p. 5), a trial court’s discretion in setting the terms and
conditions of probation is not unlimited.
(People v. Carbajal (1995) 10
Cal.4th 1114, 1121; In re Frank V., >supra, at p. 1242.)

> C. Proceedings Below

During her argument
regarding the proper disposition for minor, defense counsel stated, “he is
willing at this point to do anything that the court asks of him to return to
his mother’s home, to participate in all of these services, to turn his life
around, and to get away from gang life.
We have even discussed tattoo removal, and I advised him that I believe
Home Boy Industries still offers it, and if not we could provide him with a
referral for tattoo removal.”

The juvenile
court stated that its biggest concern was that minor had a loaded gun while
involved in a gang. The court said that
it would feel better if the gang association were minimal, but it was troubled
by the loyalty minor demonstrated to his gang by the tattoo of L.M. for La
Mirada Locos. Among its probation
conditions, the juvenile court ordered tattoo removal. Defense counsel objected to that condition
absent minor’s consent and believed the condition to be unconstitutional.

D.
Probation Conditions Must Be Modified

We believe the probation
conditions must be modified to eliminate the requirement of tattoo
removal. Although in the abstract the
condition may not meet all three of the Lent
criteria, other concerns dictate in the instant case.

It is true
that the testimony of Officer Howarth indicated that the large “L.M.” on
minor’s chest referred to his gang, La Mirada Locos. It is also true that probation conditions
prohibiting minors from acquiring tattoos have been found to pass muster under
the Lent criteria in cases where
minors’ crimes were found to be connected to their gang affiliation. (See >In re Victor L. (2010) 182 Cal.App.4th
902, 929; In re Antonio C. (2000) 83
Cal.App.4th 1029, 1035.) Arguably, the
condition in the instant case is akin to a condition prohibiting the
application of tattoos, given minor’s crime and gang affiliation and the
apparent connection between the two. We
conclude, however, that the Lent
analysis does not resolve the issue before us.


As noted >ante, minor was made a ward of the court
under Welfare and Institutions Code section 602. Therefore, the juvenile court stands in the
shoes of minor’s parents. (>In re Antonio R. (2000) 78 Cal.App.4th
937, 941; In re Frank V., >supra, 233 Cal.App.3d at p. 1243.) The duties and rights of parents are subject
to limitation “‘if it appears that parental decisions will jeopardize the
health or safety of the child, or have a potential for significant social
burdens.’ [Citation.]” (In re
Roger S. (1977) 19 Cal.3d 921, 928.)
The state, whose rights with respect to the child are more circumscribed
than those of the parent, must a fortiori be limited by an act that would jeopardize
the health or safety of the child. (>Ibid.)
Indeed, one of the purposes of the juvenile court law is to provide for
the protection and safety of the minor.
[Citation.] (Welf. & Inst.
Code, § 202, subd. (a); In re Binh L. (1992)
5 Cal.App.4th 194, 204.)

We believe
that the removal of a tattoo of a permanent nature, as
minor’s appears to be, would impose a painful and difficult requirement upon
minor that is unjustified under the circumstances presented. Were tattoo removal a simple procedure, it
would arguably be reasonable under Lent,
just as conditions of probation forbidding the acquisition of new tattoos have
been found reasonable. Tattoo removal
is, however, more complicated and expensive than the application of a tattoo. (Mayo Clinic Staff, Tattoo Removal (March 10,
2012) [as of
Dec. 13, 2012].) The removal procedure
initially may result in swelling, blistering, or bleeding as well as pain. Even after this difficult process, it may not
be possible to completely erase the tattoo.
(Ibid.) Removal is likely to result in scarring, and
infection and skin discoloration are also possible. (Ibid.;
see also People v. Page (1980) 104
Cal.App.3d 569, 578 [removal of permanent tattoos results in scarring for
life].) In light of these potential
consequences, the juvenile court abused its discretion in ordering minor to
have his tattoo or tattoos removed.

We
therefore modify minor’s probation conditions to delete the directive that minor
subject himself to tattoo removal. Minor
should be permitted to be screened for tattoo removal services, should he
choose to undergo the procedure, an action his counsel stated he was
considering during the disposition hearing.href="#_ftn3" name="_ftnref3" title="">>[3] As noted, the banning of new
tattoos as a condition of probation has been upheld, and the juvenile court may
consider imposing this condition.

DISPOSITION

The judgment
is modified to delete the probation condition requiring minor to have his
tattoos removed. The matter is remanded
to the juvenile court to consider imposing a ban on minor’s acquiring new
tattoos and ordering that tattoo removal services be made available to
minor. In all other respects, the
judgment is affirmed. The juvenile court
is directed to amend the dispositional minute
order to reflect that minor has 33 days of precommitment custody
credits.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.



_____________________,
P. J.

BOREN

We concur:



__________________, J.

DOI TODD



__________________, J.

CHAVEZ