In re Jose C.
Filed 5/21/13 In re Jose C. CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
In re JOSE C., a Person Coming
Under the Juvenile Court Law.
B240565
(Los Angeles
County
Super. Ct.
No. FJ49091)
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE C.,
Defendant and Appellant.
APPEAL from
an order of the Superior Court
of
County, Robert J. Totten, Juvenile Court Referee. Affirmed.
James M.
Crawford, 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, Senior Assistant Attorney General, Victoria B. Wilson and Kim
Aarons, Deputy Attorneys General, for Plaintiff and Respondent.
_________________
Jose C. appeals
from an order declaring him a ward of the juvenile court for resisting,
obstructing or delaying a peace officer and unlawfully possessing marijuana. He
contends the evidence against him should have been suppressed because it was
discovered as a result of an unlawful detention. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On June 22, 2011 the district
attorney filed a petition pursuant to Welfare and Institutions Code section 602
alleging Jose, then 15 years old, had resisted, obstructed or delayed a peace
officer in violation of Penal Code section 148, subdivision (a)(1), a
misdemeanor, and had unlawfully possessed 28 grams or less of marijuana in
violation of Health and Safety Code section 11357, subdivision (b), an
infraction.
Jose moved to suppress the
marijuana and a marijuana pipe recovered following his arrest by Los Angeles
County Sheriff’s Deputy Julio Martinez, contending there was no lawful basis
for his detention. (Welf. & Inst.
Code, § 700.1.) The juvenile court held an
motion in conjunction with the jurisdiction hearing.
According to Deputy Martinez, the
People’s only witness, on the afternoon of April 22, 2011 he was driving a marked patrol car in
East Los Angeles as part of a gang unit. Deputies Jason Howell and A. Baez
bearing a sheriff’s star on the front and a sheriff’s logo on the back.
Deputy Martinez noticed Jose standing
alone on the sidewalk outside a house on North Eastman
Avenue. No
one else was near Jose. From a distance
of five to eight yards from Jose, Martinez
detected a strong odor of burnt marijuana through the open car windows. Martinez
drove past the house, made a U-turn and returned, intending to detain Jose to
determine if he was unlawfully in possession of marijuana.
Deputy Martinez pulled up to the
house, got out of the car and told Jose to come over to the patrol car. Jose replied, “What the fuck do you want,â€
before opening the gate and entering the front yard of the house. Martinez
and Deputy Howell followed Jose into the yard and ordered him to show his
hands. Jose failed to comply and
demanded the deputies leave, saying they had no right to be there without a
search warrant. Jose then yelled for his
mother to get her camera. Jose turned
away from the deputies and walked toward the house, while placing his left hand
into his pants pocket. Concerned Jose
might be arming himself, Martinez grasped Jose’s hand from behind and ordered
him to place both hands behind his back.
Jose turned to face Martinez, causing the deputy to lose his grip on
Jose’s hand. Jose advanced on Martinez
with a clenched fist, and the deputy grabbed Jose’s chest and pinned him
against a wall of the house. Jose
ignored the deputies’ repeated commands to stop thrashing around and to place
his hands behind his back. Martinez
applied additional pressure to Jose’s chest, and Jose stopped struggling
although he continued to yell at the deputies.
Howell handcuffed Jose and searched him, finding a small plastic bag
containing marijuana and a marijuana pipe inside one of his pockets.
Laura Castro Mendoza, Jose’s
neighbor, was the only defense witness on the suppression motion. Mendoza testified she saw Jose in the front
yard across the street when she was retrieving some things from her car. Jose was leaning over the fence with his
right hand out, in a horizontal position facing upward. A patrol car drove up and double parked next
to Mendoza’s car. Two deputies emerged
from the car and entered Jose’s front yard.
Mendoza saw the deputies push Jose up against a wall, bend him over and
place his hands behind his back. Mendoza
asked the deputies what they were doing to Jose, and they told her to
leave. Mendoza was not familiar with the
odor of marijuana and did not remember smelling anything unusual in the air.
After hearing the evidence and
argument of counsel, the court denied Jose’s motion to suppress, finding the
deputies had reasonable suspicion to detain Jose. At the jurisdiction hearing, after hearing
testimony from Jose’s mother and sister in his defense, the juvenile court
found the allegations true and sustained the petition. The court subsequently ordered Jose into
suitable placement. Jose does not
challenge the sufficiency of the evidence to support the jurisdiction
findings.
DISCUSSION
1. Standard of Review
In reviewing the ruling on a motion
to suppress, the appellate court defers to the trial court’s factual findings,
express or implied, when supported by substantial evidence. (People
v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.) The power to judge credibility, weigh
evidence and draw factual inferences is vested in the trial court. (James,
at p. 107.) However, in
determining whether, on the facts found, the search or seizure was reasonable
under the Fourth Amendment, we exercise our independent judgment. (People
v. Zamudio (2008) 43 Cal.4th 327, 342.)
2.
The Law Governing Detentions
Police contacts with individuals fall into “three
broad categories ranging from the least to the most intrusive: consensual encounters that result in no
restrain of liberty whatsoever; detentions, which are seizures of an individual
that are strictly limited in duration, scope, and purpose; and formal arrests
or comparable restraints on an individual’s liberty.†(In re
Manuel G. (1997) 16 Cal.4th 805, 821.)
A detention occurs within the meaning
of the Fourth Amendment when the
officer, by means of physical force or show of authority, in some manner
temporarily restrains the individual’s liberty.
(Brendlin v. California (2007)
551 U.S. 249, 254 [127 S.Ct. 2400, 168 L.Ed.2d 132]; People v. Zamudio, supra, 43 Cal.4th at p. 341.) Although a police officer may approach an
individual in a public place and ask questions if the person is willing to
listen, the officer may detain the person only if the officer has a reasonable,
articulable suspicion the detainee has been, currently is or is about to be
engaged in criminal activity. (
[88 S. Ct. 1868, 20 L.Ed.2d 889]; see In re Tony C. (1978) 21 Cal.3d 888, 893.) To satisfy this requirement, the police
officer must “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; United
States v. Sokolow (1989)
490 U.S. 1, 7 [109 S.Ct. 1581, 104 L.Ed. 2d 1] [“the
police can stop and briefly detain a person for investigative purposes if the
officer has a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable causeâ€].) In evaluating whether that standard has been
satisfied, we examine the “totality of the circumstances†in each case to
determine whether a “particularized and objective basis†supports the
detention. (United States v. Cortez (1981) 449 U.S. 411, 417 [101 S.Ct. 690, 66
L.Ed.2d 621].)
3.
Deputy Martinez
Had Reasonable Suspicion To Detain Jose
Before engaging in any show of
authority consonant with a detention, Deputy Martinez had detected the odor of
burnt marijuana a short distance from Jose, who was standing alone on the
sidewalk. That alone gave rise to
possessed marijuana. (See
1374, 1377-1378; cf. People v. Palaschak
(1995) 9 Cal.4th 1236, 1241-1242 [“[L]oss or destruction of evidence by
ingestion should not defeat
a possession charge. [Citations.] [¶]
[W]e see no reason why a drug possession charge could not be based on
direct or circumstantial evidence of past possession.â€].) Martinez was justified in detaining Jose at
that point to investigate the source of the marijuana, to confirm or dispel his
suspicion that Jose was involved in this illegal activity. (See People
v. Souza, supra, 9 Cal.4th at p. 233 [possibility of innocent
explanation does not deprive officer of capacity to entertain reasonable
suspicion of criminal conduct].)
Accordingly, accepting that Deputy Martinez’s order to Jose to approach
the patrol car would have conveyed to a reasonable person that he or she was
not free to refuse or otherwise to terminate the encounter, the order was
appropriate.
As discussed, Jose reacted to the
order with verbal abuse and walked away from the deputies. When they followed him into his yard, Jose
continued his defiant behavior, insisting the deputies leave, ignoring their
repeated orders to show his hands and again walking away from them.
discourage the deputies from contacting him, while perhaps not as inherently
suspicious as headlong flight, certainly suggested consciousness of guilt in
these circumstances, an additional factor properly considered in determining
whether there was reasonable cause to detain him. (See People
v. Souza, supra, 9 Cal.4th at p. 234 [manner in which a person avoids
police contact may properly be considered in assessing reasonable cause for a
detention of that person].)
The nature of the encounter changed
in a constitutionally significant manner when Deputy Martinez
grabbed Jose’s hand to prevent him from arming himself, and Jose broke free and
charged Martinez with a clenched fist.
Jose’s resistance, which continued until Martinez pinned him against a
wall, provided probable cause to arrest for resisting, obstructing or delaying
a peace officer. The subsequent search
of Jose’s person, which Martinez characterized as a pat search, was proper as a
search incident to a valid arrest. (See
U.S. 218, 225-226 [94 S.Ct. 467, 38 L.Ed.2d 427].)
DISPOSITION
The order is affirmed.
PERLUSS,
P. J.
We concur:
WOODS, J.
ZELON, J.
surname is Baez, material in the clerk’s transcript, including reports
submitted by the deputy himself, spell his name Paez.
obtained by assertedly unlawful means must be excluded is determined
exclusively by deciding whether its suppression is mandated by the federal
Constitution. (Cal.
Const., art. I, § 28, subd. (f)(2); People v. Lenart (2004) 32 Cal.4th 1107, 1118.)
