Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County No. J214888, George W. Clarke, Judge.
McINTYRE, J.
A court declared Jorge F. a ward of the state under Welfare and Institutions Code section 602 after it found that he committed misdemeanor resisting arrest (count 1) and battery of a peace officer (count 4). It dismissed counts of public intoxication (count 2) (Pen. Code, § 647, subd. (f)) and felony resisting arrest (count 3). (Undesignated statutory references are to the Penal Code.)
Jorge appeals, contending the court's order should be reversed because it erred in holding he was arrested lawfully since he was not in a public place within the meaning of section 647, subdivision (f). We disagree and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
On November 26, 2008, shortly before 10 p.m. Jorge's mother Carmen called 911 complaining that three men were giving beer to Jorge in the driveway of her home, which is located at the intersections of New Jersey and Central Avenues in Lemon Grove. When Officer John Suenishi arrived shortly thereafter, he saw the men around a vehicle in the driveway, which faces New Jersey Avenue. The driveway appears to be about 15-18 feet long and easily accommodated two cars parked side by side. Officer James Dickey arrived seconds later.
Officer Suenishi parked his patrol car across the street, walked to the left side of the driveway and, facing the house, questioned the men. Seconds later, Jorge came out of a door to the right of the driveway and approached the officers, stopping a couple of feet in front of them. Staggering, Jorge smelled of alcohol, had a blank stare and his eyes were red and heavily glazed. The officers thought Jorge was drunk. When asked by Officer Dickey, Jorge denied having consumed any alcohol, in response to which, given Jorge's conduct and appearance, Officer Dickey accused him of lying. Jorge then admitted drinking a 40-ounce container of alcohol but, when asked why he had initially lied, he cursed Officer Dickey. Jorge began to walk away past Officer Suenishi toward the front door of the house, which faced Central Avenue.
Despite the officers' commands to stop, Jorge refused to do so. Officer Suenishi grabbed Jorge's left arm and cuffed his wrist, telling him he was under arrest for public intoxication. Jorge pulled his body away in the direction of the house, causing Officer Dickey to take hold of Jorge's right arm. A struggle ensued, in which the officers guided Jorge to the ground as he continued to curse them. Testimony at trial was contradictory as to whether Jorge, when first grabbed by Officer Suenishi, was completely in the driveway or had one foot on the sidewalk. Once down, however, Jorge was partially on the sidewalk.
After considerable resistance, Officer Suenishi cuffed Jorge, who did not resist as the officers guided him to Officer Suenishi's patrol car. However, as Officer Suenishi reached across Jorge's body to buckle the seatbelt, Jorge spat on him. Officer Suenishi then struck Jorge between the eyes, stunning him enough to allow Officer Suenishi to secure the seatbelt.
The court committed Jorge to 45 days home supervision by a probation officer, allowing him to leave accompanied by his mother for limited purposes.
DISCUSSION
Jorge contends that because he was not in a "public place" within the meaning of section 647, subdivision (f), the police did not have probable cause to arrest him for public intoxication and therefore the court erred in finding his arrest was lawful. Because lawful arrest is a prerequisite to the true findings on counts 1 and 4, he argues that this court should dismiss count 1 and reduce count 4 to simple battery under section 242. (People v. White (1980) 101 Cal.App.3d 161, 164.)
In order to be arrested under section 647, subdivision (f) one must be in a "public place." A public place is one "[o]pen to common, or general use, participation, [or] enjoyment[.]" (In re Zorn (1963) 59 Cal.2d 650, 652, quoting Gardner v. Vic Tanny Compton, Inc. (1960) 182 Cal.App.2d 506, 510.) It is "a location readily accessible to all those who wish to go there[.]" (People v. Perez (1976) 64 Cal.App.3d 297, 301.) A place is not generally public which is guarded or to which access is otherwise restricted. (See People v. Krohn (2007) 149 Cal.App.4th 1294, 1296 (Krohn).) Whether a place is public depends on the facts of each individual case. (People v. Cruz (2008) 44 Cal.4th 636, 674 (Cruz).) Courts look to such criteria as the extent to which a property is fenced or walled-off, whether any gates are generally closed or open, whether there are other challenges to access such as warning signs and dogs, and the extent to which the place is visible to the public. (See Krohn, supra, 149 Cal.App.4th at pp. 1296, 1299; People v. White (1991) 227 Cal.App.3d 886, 892 (White); People v. Yarbrough (2008) 169 Cal.App.4th 303, 319 (Yarbrough).) Even an area outside a home, including the lawn, driveway or front porch may be a public place if it is not substantially guarded or closed off. (Krohn, supra, 149 Cal.App.4th at p. 1299; People v. Olson (1971) 18 Cal.App.3d 592, 598 (Olson).)
We conclude that Jorge was in a public place for purposes of section 647, subdivision (f) when he was arrested. The driveway was open in a way that allowed easy access to the men complained of and the officers. "[A] complete stranger to [Carmen, would have been] able to walk through the [driveway]... without challenge[.]" (Olson, supra, 18 Cal.App.3d at p. 598.) It had neither guard dogs nor no-trespassing signs. Although the driveway was equipped with a gate that runs along a track, blocking access when fully extended, it was open on the night of the arrest. The accessibility of the driveway to strangers necessitated Carmen's 911 call to complain that unwanted persons were on her property. Further, the driveway was "visible to the public [and] exposed to general view[.]" (Yarbrough, supra, 169 Cal.App.4th at p. 319.) Carmen's neighbor, Marisela Morales, saw the men drinking there earlier in the day and Jorge's arrest.
Safeguarding Jorge and the public from drunkenness in such an easily accessible area serves the protective purposes underlying section 647, subdivision (f). (See People v. Belanger (1966) 243 Cal.App.2d 654, 662.) The "dangers and evils attendant upon the presence of [intoxicated] persons... in... public places[, ]" which section 647, subdivision (f) seeks to prevent, are amplified in a driveway, which is near the street and generally accessible to cars for deliveries, solicitations and the like. (Ibid.; see People v. Jimenez (1995) 33 Cal.App.4th 54, 60.) This is especially true near what Officer Suenishi called a "fairly busy" and "well-traveled" intersection. It is not unimportant in this regard that Jorge may have had one foot on the sidewalk, and thus near the street, before his arrest. Our conclusion is not changed even if he was completely in the driveway, as some witnesses testified. To exclude application of subdivision (f) of section 647 to such a circumstance would allow defendants to "avoid the proscription of the law simply by moving a few steps off a road or sidewalk onto open, accessible private property, although they pose as much of a threat to the public there as anywhere else." (Yarbrough, supra, 169 Cal.App.4th at pp. 318-319.)
Jorge's reliance on People v. Strider (2009) 177 Cal.App.4th 1393 (Strider) is misplaced. In Strider the court concluded that a porch inside a yard surrounded by a sturdy four and one-half to five feet high fence with a single open gate was not a public place because the fence constituted a "considerable challenge" to access. (Id. at pp. 1404-1405, 1407.) Here, although a sturdy brick wall surrounded the driveway, the wall was only three feet tall near the open driveway. Thus, the decorative brick wall around that portion of the home did not act as a considerable barrier to access as evidenced by the men using the exposed driveway to congregate and drink alcohol.
Finally, it is not determinative that other parts of the house were fenced in. Jorge's arrest occurred in the uninhibited driveway. Even looking to other portions of the property, it cannot be said to be "well fortified" like the property in cases such as Krohn and White. (Krohn, supra, 149 Cal.App.4th at p. 1299; White, supra, 227 Cal.App.3d at pp. 892-893.) Carmen testified that the purpose of the fence that surrounded the front yard, facing Central Avenue, was to contain her dog. A gate allowed access from the public walkway on Central Avenue to the front door. Thus, Carmen's yard was similar to that in Olson, where a stranger was "able to walk through the outside area of [the] home to the front door without challenge[.]" (Olson, supra, 18 Cal.App.3d at p. 598.)
That one of the men in the driveway lived in the home and that another was Carmen's brother and had visited in the past is not determinative. Given its protective purposes, the key consideration under section 647, subdivision (f) is whether the public "can access the place 'without challenge[, ]'" not necessarily whether they were doing so at the time of arrest. (Krohn, supra, 149 Cal.App.4th at p. 1298, italics added, quoting Olson, supra, 18 Cal.App.3d at p. 598.) Thus, rather than looking to the relation of those currently on the scene to the property owner, courts look more often to the accessibility of the property in general, which, in this case, indicates Jorge was in a public place. (See Krohn, supra, 149 Cal.App.4th at pp. 1296, 1299; White, supra, 227 Cal.App.3d at p. 892.) Moreover, it is not clear in the record that the police knew whether the individuals in the driveway were visitors or lived there when they arrested Jorge. This is important because the determination whether the police had probable cause, and thus whether the arrest was lawful, depends only on those facts and circumstances known to the officers at the time of arrest. (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1044.)
Likewise, our conclusion that Jorge was in a public place remains despite the fact that he resided at the house. Although the court in White found this significant, we do not under the facts and circumstances of this case. (White, supra, 227 Cal.App.3d at p. 892.)
DISPOSITION
The order is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.