Filed
9/13/13 In re S.P.
CA4/2
California Rules of Court, rule 8.1115(a), prohibits courts and parties
from citing or relying on opinions not certified for publication or ordered
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In re S.P., a Person Coming
Under the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
S.P.,
Defendant and Appellant.
E055976
(Super.Ct.No. J23826)
OPINION
APPEAL
from the Superior Court
of
Bernardino County.
Thomas S. Garza, Judge. Affirmed
with directions.
David L.
Annicchiarico, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Melissa Mandel and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
S.P.,
a minor, appeals after he was adjudicated a ward of the juvenile court for
denying his motion to suppress evidence under Penal Code section 1538.5. He further contends that, even if the
adjudication was proper, two of the conditions of his probation are
unconstitutionally vague and overbroad.
We agree that one of the probation conditions should be modified to
include a knowledge requirement.
Otherwise, however, we affirm.
FACTS
AND PROCEDURAL HISTORY
On
March 14, 2011, Roy Rojas
was a campus security officer assigned to San Gorgonio High School in San
Bernardino. A
park is located across the street on the east side of the school campus. On the day in question, at approximately 3:05 p.m., students were leaving the
campus. Rojas saw two groups of
students, both composed of Hispanic males, in the park across from the
school. The two groups were comprised of
San Gorgonio students, and numbered about 25 to 30 in all. Rojas was familiar with both groups, and knew
from his day-to-day contacts with the students that the groups did not
socialize together, and often engaged in fights. Rojas believed that a fight was brewing in
the park, because the two groups were exchanging vulgarities and calling one
another out to fight. Rojas and two other
security officers attempted to disperse the groups, telling the young men to
leave, and to “break it up.â€
Just
then, a black car pulled up at the park.
Six or seven young men, including the minor, were “packed†into the car. Rojas did not recognize these young men; they
did not appear to be San Gorgonio students.
After parking the car, the new arrivals got out of
their car and went to the trunk
area. Rojas could not see exactly what
the young men were doing, but they appeared to be reaching for something or
looking at something in the trunk.
Leaving the trunk open, the new arrivals began walking toward the area
where the confrontation was taking place between the two groups of students. Rojas did not see anything visible in the
hands of the newly arrived young men as they walked toward the fight.
Rojas
believed that the new arrivals were going toward the fight with the intention
of joining in. From his experience,
Rojas knew that it was common for juveniles to call in friends or nonstudents
to join in larger fights. He also heard
“a couple of guys that were in that group were calling someone out.†Rojas called for police assistance. The new arrivals were young men that he did
not recognize, and they had gone to the back of their car by the trunk; Rojas
feared that they were “attempting to go grab something in regards to the
fight.â€
Officer
Steven Nelson of the San Bernardino Unified
School District responded to the
call of a large group fight brewing in the park. He received radio information that another
large group had arrived in a black car, had gone to the trunk of the car, and
“were now clustered as a group and walking into the park towards where that
existing group was . . . .â€
Officer Nelson was already nearby when he received the call, and he
arrived within a few seconds. He saw the
parked black car, and a group of six or seven young Hispanic males walking away
from the car and advancing toward the large gathering of students in the park. Rojas pointed toward the group of six or
seven young men heading
away from the car and into the
park. Officer Nelson yelled after the
young men to stop, and to come back to the sidewalk. The young men complied; they returned to the
sidewalk and sat on the curb.
Officer
Nelson directed Rojas to conduct a patdown search on the young men. He was concerned, “[i]nitially just based on
sheer numbers. There was more of that
group than there were security personnel or myself. [¶] In
conjunction with my training and experience, it’s not unusual when we have
fights that occur after school that one or more individuals may have weapons on
them, so for the safety of myself and the security personnel, as well as all
the surrounding students that were in the immediate vicinity, I felt that [it]
was necessary to conduct a pat-down [sic]
of the exterior of their clothing to make sure they were not in possession of
any obvious weapons.â€
Rojas
patted down the minor, and felt the outline of metal knuckles in the minor’s
pocket. He handcuffed the minor and
removed the metal knuckles from the minor’s pocket.
A
petition under Welfare and Institutions Code section 602 was filed, charging
the minor with felony possession of metal knuckles (Pen. Code, § 12020,
subd. (a)(1) [former Pen. Code, § 12020, repealed effective January 1, 2011, and replaced, without
substantive change, by § 22210, made operative January 1, 2012].)
In May 2011, the minor was placed on informal probation. (Welf. & Inst. Code, § 654.2.) Over the ensuing months, the minor had failed
to comply with a number of the conditions of his probation; he missed
appointments with his probation officer, he failed to complete his
community service, he did not
attend required substance abuse and weapons diversion programs, and his
attendance at school was poor. On February 6, 2012, the court revoked
the minor’s informal probation and reinstated the petition.
The
court heard and denied the minor’s motion to suppress evidence. The charge was amended to a misdemeanor, and
the court entered an admission to that count.
At the disposition hearing, the court declared the minor to be a ward of
the juvenile court, and placed him on probation, in the custody of his
mother.
The
minor filed notices of appeal on March 28, and April 12, 2012.
ANALYSIS
I. The Trial Court Properly Denied the Motion
to Suppress
Defendant
first contends that the detention was unlawful because Officer Nelson had no
reasonable suspicion that defendant was about to engage in criminal
activity.
A. Standard of Review
In
ruling on a motion to suppress evidence under Penal Code section 1538 .5, the
trial court judges the credibility of witnesses, resolves conflicts in the
testimony, weighs the evidence, and draws any factual inferences as necessary
to its determination. (
596.) On appeal, “all presumptions favor
the exercise of [the trial court’s] power, and the trial court’s findings on
such matters, whether express or implied, must be upheld if they are supported
by substantial evidence.†(Ibid.) However, the appellate court also exercises
its independent judgment to determine whether, on the facts found, the search
or seizure was reasonable under the Fourth Amendment. (People
v. Maury (2003) 30 Cal.4th 342, 384.)
B. The Detention Was Proper
“[A]n
officer may, consistent with the Fourth
Amendment, conduct a brief, investigatory stop when the officer has a
reasonable, articulable suspicion that criminal activity is afoot.†(Illinois v. Wardlow (2000) 528 U.S.
119, 123 [120 S.Ct. 673, 145 L.Ed.2d 570].)
Here, Officer Nelson had a reasonable, articulable suspicion that
criminal activity was afoot.
Rojas,
one of the campus officers, saw the students leaving the school and entering
the park. Two groups of students,
composed of young Hispanic men, appeared to be about to engage in a fight. The groups were shouting challenges at one
another. Rojas knew that the groups of
students were not friendly and did not “hang out together.†To all appearances, a large fight was
brewing.
Just
when the fight seemed imminent, another group of young men, including the
minor, arrived in a black car. The young
men, who also appeared to be Hispanic, were “packed†into the car; six or seven
got out of the car and clustered around the trunk. In Rojas’s experience, groups of students
engaged in a fight would call in their friends or other nonstudents to join in
larger fights. Rojas could not see
precisely what the young men were doing at the trunk, but none of the young men
appeared to have anything in their hands when the group left the car. The young men started walking in a group
toward the area where the fight was coalescing.
Officer
Nelson was already in the vicinity in his patrol car, and he could see the
students gathering in the park at the time he received the radio information
from Rojas, to
the effect that “a large group
fight [was] pending in the park.†He
also heard Rojas’s radio broadcast that an additional large group had arrived
in a black car, had gone to the trunk of the car, and “were now clustered as a
group and walking into the park towards where that existing group was
. . . .†Because he was
already close enough to see the park, Officer Nelson arrived within seconds of
Rojas’s radio call. He observed a group
of six or seven Hispanic young men, who “appeared to be heading away from the
car and towards the area of the large gathering in the park itself.†Rojas also pointed to the group, indicating
that they were the subjects of his radio broadcast. It was at this point that Officer Nelson
called after the new arrivals to stop, and to return to the sidewalk area.
Officer
Nelson could see the large fight developing in the park. The altercation appeared to be between two
groups of Hispanic students.
Immediately, the minor and his companions arrived, six or seven young
men “packed†into the newly arrived black car.
After stopping at the car’s trunk, and appearing to reach for something
inside, the young men walked in a group toward the altercation. Based on the totality of the circumstances,
Officer Nelson had a reasonable, articulable suspicion that the minor and his
companions were about to engage in criminal acts, i.e., to join the fight.
The
minor protests that there were many recreational activities available in the
park (e.g., skateboard course, basketball courts, baseball fields, soccer
field, playground, picnic tables, restrooms), and that he and his companions
might have gone to the park for any number of reasons. However, none of the young men were carrying
anything visible
such as bats, racquets,
skateboards, picnic coolers, basketballs, or anything else to indicate that
they had any reason to be at the park, other than to participate in the
fight. The timing of their arrival and
apparent purposefulness in approaching the impending altercation were
sufficiently reasonable, articulable circumstances to justify a brief
detention. (See, e.g.,
1390, 1401 [Tip from 911 caller reported a shot fired in apartment complex, and
described the shooter. The officer
responded within minutes, and saw the defendant, matching the description of
the shooter, and holding his waistband in a peculiar manner, as if a heavy
object were concealed there. This was
sufficiently reasonable suspicion, under the totality of the circumstances, to
support a detention and patsearch of the defendant, i.e., that the defendant
had been involved in criminal activity and was presently armed and dangerous.].)
C. The Patdown Search Was Proper
Law
enforcement officers may conduct a patdown search incident to a detention only
under certain conditions. An officer may
conduct a patdown search to determine if a person is carrying a weapon after
the officer observes suspicious behavior—prompting a reasonable suspicion—that
the person is armed and dangerous to the officer or others. (Terry
v. Ohio
(1968) 392 U.S. 1, 24 [88 S.Ct. 1868;
20 L.Ed.2d 889] (Terry).) The officer’s patdown search—the “friskâ€â€”was
“ ‘only a “frisk†for a dangerous weapon.
It by no means authorizes a search for contraband, evidentiary material,
or anything else in
the absence of reasonable grounds
to arrest. Such a search is controlled
by the requirements of the Fourth Amendment, and probable cause is essential.’ †(Terry,
supra, 392 U.S. 1, at p. 16, fn. 12 [20 L.Ed.2d at p. 903, fn. 12].) The California Supreme Court has also
unanimously so held. (
161 [patdown search “only†for weapons]; accord People v. Garcia (2006) 145 Cal.App.4th 782, 788.)
Here,
Officer Nelson had good reason to suspect that one or more of the young men was
armed and presented a physical danger to himself or others. Until backup arrived, he and the campus
officers were outnumbered. The young
men, including the minor, had spent time at the back of the car, appearing to
reach for something in the trunk. Given
their approach as a group to the brewing fight, as well as the lack of anything
visible in their hands, it was reasonable to suspect that one or more of the
young men had secreted a weapon on his person.
The timing of their arrival and their calling out to others who appeared
to be ready to fight justified the suspicion that they were armed. Under the totality of the circumstances, the
safety of the officers, students in the area, and other bystanders was a
genuine concern, justifying Officer Nelson’s direction to have school officer
Rojas pat the minor down for weapons. A
reasonably prudent person in such circumstances would be warranted in the
belief that the brief search was necessary for the safety of the officers and
others. (Terry, supra, 392 U.S. 1,
at p. 27.) The evidence discovered in
the minor’s pocket (a weapon, metal knuckles) was not the result of an
motion to suppress the evidence.
II. One of the Minor’s Probation Conditions
Should Be Modified to Include a Knowledge Requirement
The
minor contends that two of his probation conditions, condition 2 and condition
14, are unconstitutionally vague and overbroad.
Condition 2 required the minor to “Obey parents, responsible adults and
the probation officer . . . .†Condition 14 mandated that the minor “Not
possess any dangerous or deadly weapons, including but not limited to any
knife, gun, or any part thereof, ammunition, blackjack, bicycle chain, dagger
or any weapon or explosive substance or device as defined in Penal Code section
12020 and/or Penal Code section 626.10.â€
A
juvenile court has broad discretion in selecting and imposing probation
conditions for the purpose of rehabilitating a minor. (In re
Josh W. (1997) 55 Cal.App.4th 1, 5.)
Generally, in the absence of a manifest abuse of that discretion, the
court’s orders will not be disturbed on appeal.
(Ibid.) However, the claim that a probation condition
is unconstitutionally vague or overbroad presents a question of law, which the
appellate court reviews independently. (
888.) Because of the rehabilitative
function of the juvenile court, a probation condition that might be improper or
unconstitutional as to an adult, may nevertheless be permissible as to a ward
of the court. (
889.)
Here,
the juvenile court placed the minor in the custody of his mother, upon terms
and conditions of probation, including the requirement that he “Obey parents,
responsible
adults and the probation officer
and cooperate in a plan of rehabilitation.â€
The minor complains that the order that he “Obey . . .
responsible adults . . . ,†is impermissibly vague and overbroad,
because it does not define the term “responsible.†He contends that this term is not sufficiently
narrowly tailored to protect his right to due process, i.e., notice of what is
required to avoid violation. He also
maintains that only “persistent disobedience†should constitute a violation of
the probation condition.
We
disagree. The term “responsible adult,â€
when read in context, reasonably identifies those adults who are responsible in
some way for the minor’s care, guidance or supervision, such as a parent,
guardian, custodian, probation officer, or teacher. Manifestly, the minor is not required to obey
the directions of all persons over the age of 18. The term “responsible adult†reasonably
limits the class of persons whom the minor must obey. The minor’s suggestion that the probation
condition should be modeled on Welfare and Institutions Code section 601 [persistent
or habitual refusal to obey reasonable and proper orders of a parent, guardian
or custodian is a basis to find a minor to be a ward of the court] is without
merit. Persistent or habitual
disobedience is one basis for imposing wardship; proof of persistent or
habitual disobedience is therefore required to establish the jurisdiction of
the juvenile court in the first instance.
Once wardship has been established, however, the focus becomes the
reform and rehabilitation of the minor.
(See, e.g., In re D.G. (2010)
187 Cal.App.4th 47, 52.) The minor has
already been adjudged a ward of the court; his history shows both law
violations and past
violations of probation. His disobedience to persons exercising lawful
control and supervision over him need not be repeated, persistent, or habitual
to constitute a violation of his current probation. The minor does not have license to disobey
his parents, teachers, or probation officer, so long as he does so only
occasionally or once in a while.
Probation condition 2 was not unconstitutionally vague or
overbroad.
Probation
condition 14 prohibited the minor from possessing dangerous or deadly
weapons: the minor must “Not possess any
dangerous or deadly weapons, including but not limited to any knife, gun, or
any part thereof, ammunition, blackjack, bicycle chain, dagger or any weapon or
explosive substance or device as defined in Penal Code section 12020 and/or
Penal Code section 626.10.â€
The
minor contends that this condition is unconstitutionally vague and overbroad in
two distinct ways. First, he argues that
the condition must be subject to a knowledge requirement, i.e., that he must
not knowingly possess any dangerous
or deadly weapons. Second, he claims the
condition is overbroad because it “proscribes [his] possession of everyday
items, such as a bicycle chain . . . , without narrowly tailoring the
condition to require that he is only in violation if he intended to use the
everyday item in an unlawful manner.†He
further maintains that, “it is beyond dispute that there is nothing improper
about a boy owning and riding a bicycle.â€
As
to the knowledge requirement, the minor is correct. The condition should be modified to require
that the minor “Not knowingly possess
any dangerous or deadly weapons . . . .†(People
v. Freitas (2009) 179 Cal.App.4th 747, 751-752.) The People concede the point.
As
to the prohibition of “everyday items,†we begin by observing that a probation
“condition that imposes limitations on a person’s constitutional rights must
closely tailor those limitations to the purpose of the condition to avoid being
invalidated as unconstitutionally overbroad.â€
(In re Sheena K.,
nothing improper in a boy owning or riding a bicycle, but, as the People point
out, there is no constitutional right at stake in prohibiting a minor from
possessing a bicycle chain. The
probation condition is also reasonably tailored to the purpose of the condition. Here, the minor was found in possession of
metal knuckles on his way to a fight. A
bicycle chain may not be a dangerous or deadly weapon when it is a component of
a functioning bicycle, but if it is removed from the bicycle, it certainly can
be. The inclusion of a bicycle chain on
the list of prohibited weapons is reasonable in light of the offense, and is
neither overbroad nor vague. The minor
does not suggest any other “everyday item†he finds objectionable, aside from a
bicycle chain.
We
shall order probation condition 14 modified to include a knowledge requirement,
but otherwise affirm.
DISPOSITION
The
juvenile court properly denied the minor’s motion to suppress evidence.
We
direct that probation condition 14 be modified to read that the minor shall
“Not knowingly possess any dangerous or deadly weapons, including but not
limited to any knife, gun, or any part thereof, ammunition, blackjack, bicycle
chain, dagger or any
weapon or explosive substance or
device as defined in Penal Code section 12020 and/or Penal Code section
626.10.â€
In
all other respects, the judgment is affirmed.
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS
MCKINSTER
J.
We concur:
HOLLENHORST
Acting P. J.
MILLER
J.
