Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. J35297
Lambden, J.
Vincent D. appeals from the juvenile court’s jurisdictional and dispositional orders following the court’s sustaining of one allegation of resisting a police officer in the discharge of the officer’s duties. Vincent argues that the court should have rejected the allegation because any resistance occurred as the result of an unlawful detainment, since the detainment was based on his use of constitutionally protected speech and a Vacaville municipal ordinance that violates the First and Fourteenth Amendments of the United States Constitution. We find no basis for reversing the court’s orders regardless of the constitutionality of the ordinance, and affirm the orders.
BACKGROUND
In July 2007, the Solano County District Attorney filed a petition pursuant to Welfare and Institutions Code section 602 alleging that Vincent resisted a police officer in violation of Penal Code section 148, subdivision (a)(1), a misdemeanor. Vincent denied the allegations.
On appeal, the parties do not dispute that on May 27, 2007, local police officers in Vacaville, California were briefed about a potential gang fight between the Nortenos and Surenos that might occur by the Ferris wheel in the city’s Andrews Park during the “Fiesta Days Carnival” (carnival). Officers Mark Donaldson, David Spencer, and David Valk patrolled the carnival together. Donaldson, in uniform, took pictures of carnival attendees that were gathered in groups for later identification in the event a fight occurred. Donaldson testified that a lot of the time, when he took photos of a group, the group would break up and move on.
The parties also do not dispute on appeal that Vincent was one of a group of five to ten teenagers whom the officers saw congregating near the park’s Ferris wheel. Spencer testified that he suspected some members of Vincent’s group might be gang members because they were wearing the color red. Donaldson did not initially consider Vincent a suspect and Valk could not recall whether Vincent had any tattoos or was wearing gang attire. When Vincent saw Donaldson taking photographs, he pulled his black T-shirt up past his nose, covering his face up to his eyes. The officers began to approach Vincent in order to identify him. The prosecution and defense differ about what happened after this point.
The Prosecution’s Case
Donaldson, Spencer, and Valk testified that as they approached, Vincent began shouting profanities at them. Donaldson recalled that Vincent yelled, “Fuck you, you punk-ass mother fuckers. I ain’t gotta tell you shit. I ain’t on probation no more.” Spencer could not recall exactly what Vincent said to Donaldson, but recalled that Vincent “screamed out an obscenity,” and said something about not being on probation any more and not having to listen to them, or that they could not do “this” to him. Valk did not remember what was said, but remembered that “there was some swearing prior to contact.”
Donaldson observed that families with children were present approximately 15 feet from Vincent. He was aware that a Vacaville municipal ordinance prohibited the kind of boisterous or disorderly conduct in a public place that he observed in Vincent’s conduct. He thought that Vincent had violated the ordinance, and continued to approach Vincent with the intention of enforcing the ordinance and escorting him from the park.
Donaldson further testified that as he approached, Vincent placed his right hand into his pocket while continuing to hold his T-shirt over his face with his left hand. Donaldson was concerned that Vincent might be reaching for a weapon and grabbed Vincent’s right hand to prevent him from removing it from his pocket, while placing his left hand on Vincent’s shoulder. Valk testified that Donaldson told Vincent to get his hand out of his pocket before grabbing him.
The officers further testified that Vincent broke free from Donaldson’s grasp with his right hand, at which point Donaldson employed a “front foot sweep” that took Vincent to the ground, placing him on his stomach. Valk and Donaldson testified that Vincent continued to curse, thrash, and struggle on the ground. Vincent was handcuffed and informed that he was under arrest for resisting an officer. As the officers escorted Vincent on foot to a mobile command center at the fair, he continued to struggle, so Donaldson used a control hold to gain compliance. Vincent complained that his arm was breaking. Donaldson did not observe any visible injury and Vincent did not request any medical assistance. The officers took Vincent to the mobile command center, cited him, and released him into his mother’s custody.
Vincent’s Case
Vincent called a number of eyewitnesses to testify, including Mariah D. She testified that she was 13 years old, best friends with Vincent’s cousin, and cousin to one of Vincent’s friends. She was “maybe” five feet away from Vincent during the incident, and saw Vincent walking with his T-shirt up to his nose for two to three minutes, and that “maybe” four minutes after he had his T-shirt over his face, she saw the police walking towards him and tackle him. Police wearing blue T-shirts were taking pictures, but the officers who tackled Vincent were wearing uniforms. She heard Vincent make a comment in a low, normal speaking voice to the officers before being tackled, to the effect of, “calling the cops pigs, I don’t have to listen to you, I ain’t on probation,” with his T-shirt over his face. She did not recall him yelling or swearing. She did not see Vincent put his hand in his pocket before the officers tackled him, but did see an officer grab his arm when Vincent was “just walking,” “[b]ut like in kind of mad... he was mad.” Vincent did not try to break away from the police. Once he was on the ground, an officer got on top of him, pushed his elbows into his back and shoved his face into the ground. Vincent did not kick, move, or swear while on the ground.
Anthony V. testified that he was 16 years old and knew Vincent through friends. When the incident occurred, he was about 20 feet away from Vincent, and heard yelling, saw Vincent with his hands up toward his face like he was trying to wipe his face, and saw some police officers pick Vincent up and throw him to the ground. Upon further questioning, Anthony did not remember if Vincent pulled up his T-shirt or his hands to his face. He did not see Vincent do anything before he was thrown to the ground. An officer twisted Vincent’s wrist up to the back of his neck when Vincent was on the ground, and Vincent yelled for him to stop because his arm was going to break; the police told him “to shut the ‘F’ up.” He did not hear Vincent say anything to the officers, or reach into his pocket, before he was thrown to the ground. He did not see Vincent pull away from, or otherwise struggle with the officers.
Martin C. testified that he was 17 years old and Vincent’s cousin. He was about three or four feet from Vincent when the incident occurred. Martin saw police officers taking pictures, some wearing uniforms and some wearing black T-shirts. Vincent did not say anything and was just walking with his T-shirt covering his mouth when a police officer grabbed him and threw him on the ground, and three officers got on top of him. Vincent did not say anything until he got up from the ground, when he was “cussing” and screaming that they were about to break his arm and wrist. Martin did not see Vincent reach his hand into his pocket before he was thrown on the ground.
Vincent testified that he was in Andrews Park to attend the carnival with two of his cousins when he saw the officers taking pictures. He pulled his T-shirt up a little above his nose and began walking away because they were trying to label him as a gang member and take his picture, although he was not a gang member. An officer came up to him from the side, grabbed his arm, and told him to put his shirt down. Vincent told him he did not want him taking his picture, and that he was not on probation. The officer grabbed his arm tighter and told him in a kind of a rough, angry voice to put his shirt down. Vincent pulled away, but not violently, because the officer was grabbing his arm, and Vincent did not think he had done anything wrong. The officer picked him up in the air and Vincent went to the ground. Vincent got mad and started “cussing.” Two or three officers got on him; someone put a knee or arm in his jaw, which was “hurting real bad,” another told him to stop resisting, and they handcuffed him. The officers then lifted him off the ground and started walking, putting him in a hold that caused him the most pain he had ever felt. He learned later that day at the hospital that his wrist was fractured.
Vincent denied cursing at officers when they first approached him, and said he spoke about not being on probation in a very calm voice. He put his T-shirt down after the police officer grabbed him. Before he started talking to the police, as he turned away, he put his cell phone in his pocket, and left his hand in his pocket for not more than 15 seconds.
Closing Argument and the Court’s Ruling
The prosecution argued that Vincent had first violated Penal Code section 148 when he pulled away from Donaldson’s grasp as Donaldson sought to detain him in the course of enforcing the Vacaville Municipal Ordinance that prohibited Vincent’s use of loud, profane language in a public park; Vincent violated the ordinance when he yelled in a loud voice, “ ‘Fuck you, you punk-ass motherfuckers, I ain’t gotta tell you shit. I ain’t on probation no more.’ ” According to the prosecution, regardless of the constitutionality of the ordinance, Donaldson was entitled to act if he had a good faith belief that Vincent had violated it, and he was not required to inform Vincent of his suspected violation before doing so. Also, the prosecution argued, Donaldson sought to detain Vincent by grabbing his arm for a second reason, that being Donaldson’s concern for officer safety after he saw Vincent reach into his pocket as Donaldson approached him. The prosecution further contended that Vincent resisted the officers’ efforts when he was on the ground and after he was lifted up onto his feet.
Vincent’s attorney argued that any resistance by Vincent was to an unlawful arrest because he was not a crime suspect, was not on probation and had the same rights to privacy as everyone else, and used language protected by the First Amendment. Counsel argued that if Donaldson thought Vincent should leave the area, he should have simply asked him to do so, but acknowledged in response to the court’s questioning that Donaldson could go directly to putting hands on Vincent and escorting him out without prior communication. Counsel further contended that the police used excessive force, and that Vincent did not resist.
The court sustained the charge against Vincent. It ruled that Vincent’s expressions to the officers about his probation status and rights, while profane, “were constitutionally-protected expressions of speech under the [F]irst [A]mendment,” and that he “had the right to avoid having his picture taken and to express his dismay of having his picture taken.” Nonetheless, the court rejected Vincent’s argument that the arrest was unlawful, stating:
“The officer or any officers who believes, even unreasonably, that an ordinance has been violated may still be within his lawful pursuit of duty and may still be able to detain. In other words, the fact that he misjudges whether a violation is taking place or not does not necessarily mean that he is not in the lawful pursuit of his duty.
“We had three police officers testify in this matter. Two of the officer[s] stated that Vincent was approached in order to identify him. One officer, Officer Donaldson, testified. Of the three, he recalled that there was a city ordinance that would allow him to eject someone for loud, profane words in a public park. Officer Donaldson testified that as he approached Vincent, his goal became to enforce this... municipal code ordinance, by ejecting Vincent from the park.
“I find no law that required Officer Donaldson to announce to Vincent that he was ejecting him or forcing him to leave before being permitted to touch in order to perform the ejection.
“I think it’s extremely understandable that Vincent did not and could not know the reason Officer Donaldson was placing hands on him. There is no indication that Vincent was told to leave or that the officer was approaching him in order to eject him, that that was the officer’s purpose at that point.
“But I don’t find any law that changes this conclusion, that the fact that Officer Donaldson did not announce his intentions or ask first somehow makes the detention of Vincent by holding his right hand and his left shoulder illegal. Officer Donaldson’s testimony that at that point, Vincent pulled away was in fact corroborated by the other officers.
“I’m going to find that technically, Vincent, you violated the law when you pulled away when this officer first touched you. The resisting occurred at that time.
“And so on that basis, I will sustain count one.”
The court did not refer to the prosecution’s second stated reason for Vincent’s detainment, officer safety. Implicit in its ruling was its determination that the officers’ testimony about the incident was more credible than any conflicting testimony.
At the dispositional hearing, the court deemed Vincent’s offense to be a misdemeanor and placed him on six months informal probation pursuant to Welfare and Institutions Code section 725, subdivision (a), with a maximum confinement period of one year. Vincent filed a timely notice of appeal.
DISCUSSION
Donaldson’s testimony indicated that he acted upon Vacaville Municipal Code section 12.28.130 (section 12.28.130) after hearing Vincent shout profanities at the officers. Section 12.28.130 states, “It is unlawful for any person to engage in loud, boisterous, threatening, abusive, insulting or indecent language, or engage in any disorderly conduct or behavior tending to a breach of the public peace and enjoyment of park and recreation areas.”
On appeal, Vincent does not dispute that he resisted Donaldson’s efforts to detain him and, subsequently, arrest him. Instead, Vincent argues that the trial court should have found the police officers acted unlawfully because his comments to them were constitutionally protected speech and section 12.28.130 is unconstitutional on its face. In response to the People’s argument that Donaldson was entitled to rely on section 12.28.130 in the performance of his duties regardless of its constitutionality, Vincent asserts that Donaldson should have known that section 12.28.130 was unconstitutional based on case precedent.
As Vincent points out, we conduct an independent review where the defendant raises a plausible First Amendment defense to “determine whether the facts satisfy the rule of law.” (In re George T. (2004) 33 Cal.4th 620, 634.) However, “[c]laims challenging the sufficiency of the evidence to uphold a judgment are generally reviewed under the substantial evidence standard.” (Id. at p. 630.) Under this deferential standard, we “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Killebrew (2002) 103 Cal.App.4th 644, 660.) Furthermore, “a judgment may be affirmed on any basis supported by the record even if not expressly relied upon by the trial court.” (CUNA Mutual Life Ins. Co. v. Los Angeles County Metropolitan Transportation Authority (2003) 108 Cal.App.4th 382, 397 (CUNA Mutual Life Ins.); see also People v. Saucedo (1995) 33 Cal.App.4th 1230, 1240 [“[o]ur review is confined to the correctness or incorrectness of the trial court’s ruling, not the reasons for its ruling,” disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3].)
Based on our standard of review, we conclude that the trial court did not err when it ruled that Vincent had violated Penal Code section 148, subdivision (a)(1). We base our conclusion on Donaldson’s concern for officer safety, and on Donaldson’s reasonable reliance on the validity of section 12.28.130, regardless of its constitutionality. We affirm the court’s orders, and have no need to, and do not, address the ordinance’s constitutionality, or whether, as the People assert, Vincent addressed the police with “fighting words” that were not protected by the First Amendment.
I. Donaldson’s Detainment of Vincent Out of Concern for Officer Safety
The prosecution asserted in its closing argument to the juvenile court that Donaldson first grabbed Vincent in part out of his concern for officer safety, and that this was a valid basis for Vincent’s detainment. The court did not expressly refer to, or reject, this argument in its ruling, concentrating instead on Donaldson’s intent to enforce the municipal ordinance by escorting Vincent from the park. Nonetheless, based on our authority to affirm the trial court’s ruling on a ground it did not expressly refer to, but which is supported by the record (CUNA Mutual Life Ins., supra, 108 Cal.App.4th at p. 397; see also People v. Saucedo, supra, 33 Cal.App.4th at p. 1240), we find substantial evidence supports Donaldson’s officer safety concern. It was sufficient for him to initially detain Vincent, as the People suggest when they state in their reply brief that Vincent’s “words and acts reasonably could have been construed as indications that [Vincent] intended to fight with the police officers.”
In order to find a violation of Penal Code section 148, subdivision (a), for resisting an officer, the People must prove that “(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.)
Reasonable suspicion sufficient to justify a temporary detainment must be based on specific and articulable facts and must be evaluated objectively. (In re Tony C. (1978) 21 Cal.3d 888, 893.) “The possibility of an innocent explanation does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (Id. at p. 894.) If suspicion is established, then the officer is obligated to investigate and resolve any ambiguity. (Ibid.; In re Frank V. (1991)233 CalApp.3d 1232, 1241.) Reasonableness is determined in light of the totality of circumstances surrounding the detainment. (Terry v. Ohio (1968) 392 U.S. 1, 19; see also In re Alejandro G. (1995) 37 Cal.App.4th 44, 49 [in determining whether a person has disturbed the peace, “courts must consider the totality of the circumstances”].) In evaluating reasonableness, the court must give due weight to the “specific reasonable inferences which he [an officer] is entitled to draw from the facts in light of his experience.” (Terry v. Ohio, at p. 27; People v. Brown (1985) 169 Cal.App.3d 159, 165 [“[t]he experience of a police officer is often considered a significant factor in determining whether reasonable suspicion existed”].)
The officers’ testimony provides substantial evidence that at the time of Vincent’s detainment, Donaldson was aware of the following facts: a gang fight in Vincent’s exact location was anticipated, Vincent sought to conceal his identity when Donaldson attempted to take his photograph, Vincent yelled hostile profanity directly at the officers, he did not simply move on as others had, and Vincent reached his hand into his pocket as Donaldson approached him. We conclude that it was objectively reasonable for Donaldson to perceive these actions as aggressive and, possibly, dangerous. This substantial evidence, combined with Donaldson’s knowledge of the possibility of gang violence occurring in the area, support the conclusion that Donaldson’s knowledge at the time supported an objectively reasonable suspicion sufficient to detain Vincent. Indeed, we have found that in similar circumstances the act of putting one’s hands in his pockets reasonably warranted an officer’s concern for his own safety, justifying further investigation, even though the person was not previously a suspect or otherwise detained. (In re Frank V., supra, 233 Cal.App.3d at pp. 1237-1239 [reasonable suspicion found where police, responding to a report of reckless motorcycle driving, saw a motorcycle passenger twice put his hands into the pockets of his bulky jacket when the motorcycle was pulled over after having left a known gang location]; compare with In re Tony C., supra, 21 Cal.3d at p. 897 [finding “nothing suspicious” about two kids walking along a residential street at noon]; see also (Michigan v. Summers (1981) 452 U.S. 692, 702-703 [minimizing the risk of harm to officers can be of the “greater importance” when assessing the justification for detention], People v. Avila (1997) 58 Cal.App.4th 1069, 1074 [the combination of factors, “although perhaps individually harmless, could reasonably combine to create fear in a detaining officer”].)
Vincent does not provide any authority for the proposition that we must judge the reasonableness of a detainment based only on an officer’s initial reason for approaching the detainee. His effort to distinguish the present facts from In re Frank V., supra, 233 Cal.App.3d 1232, is unpersuasive in light of Donaldson’s testimony that, as he approached Vincent after Vincent had yelled obscenities at him, he saw Vincent place his hand into his pocket while concealing his face, as well as Donaldson’s testimony that he had been briefed that a gang fight could occur at the exact location where he found Vincent.
In short, we conclude that, regardless of the constitutionality of section 12.28.130, there was substantial evidence that Donaldson sought to detain Vincent because of an objectively reasonable suspicion that Vincent posed a risk to officer safety, based on a totality of the circumstances known to Donaldson at the time. We affirm the trial court’s orders for this reason alone.
II. Donaldson’s Detainment of Vincent for Violating the Municipal Ordinance
The People argue that Donaldson, even if he had sought to detain Vincent based solely on Vincent’s violation of section 12.28.130, could do so under the circumstances, regardless of the constitutionality of that ordinance. We agree.
Generally, an officer may presume that the law he is enforcing is legal. “Police are charged to enforce laws until and unless they are declared unconstitutional. The enactment of a law forecloses speculation by enforcement officers concerning its constitutionality—with the possible exception of a law so grossly and flagrantly unconstitutional that any person of reasonable prudence would be bound to see its flaws. Society would be ill-served if its police officers took it upon themselves to determine which laws are and which are not constitutionally entitled to enforcement.” (Michigan v. DeFillippo (1979) 443 U.S. 31, 38.) However, a law enforcement officer cannot “be said to have acted in good-faith reliance upon a statute if its provisions are such that a reasonable officer should have known that the statute was unconstitutional.” (Illinois v. Krull (1987) 480 U.S. 340, 355.) This standard of reasonableness “is an objective one; the standard does not turn on the subjective good faith of individual officers.” (Ibid.)
Donaldson testified that he believed a violation of section 12.28.130 had occurred based on Vincent’s yelling profanities in a public park, and sought to eject him pursuant to the enforcement provision contained in the municipal code. (See § 12.28.140 [authorizing a person’s ejection from a city park for violation of such an ordinance].) On appeal, Vincent does not dispute that there was substantial evidence to support Donaldson’s conclusion.
Nor does Vincent contest that, as the People argue, generally speaking, a good-faith arrest based on probable cause under an unconstitutional statute is nevertheless reasonable and valid pursuant to Michigan v. DeFillippo, supra, 443 U.S. 31. Instead, Vincent argues that, given the case precedent, Donaldson should have known that the municipal ordinance was unconstitutional. This is unsupportable. Vincent concedes that at the time of his detention section 12.28.130 had never been challenged. He nonetheless argues that United States Supreme Court precedent, certain California case law, and case law from other jurisdictions invalidating similar statutes establish that the ordinance is unlawful, citing, among other cases, Houston v. Hill (1987) 482 U.S. 451, 465, and Cohen v. California (1971) 403 U.S. 15, 21-22. He concludes that, based on this case precedent, “[a] reasonable officer would have known... that Vincent’s speech was protected by the First Amendment and an ordinance authorizing punishment for that speech was unenforceable.”
Vincent’s argument is incorrect in the absence of any indication that Vincent knew, or was required to know, this case authority and its significance to the constitutionality of section 12.28.130. In contrast, Division Three of this Appellate District held in People v. McNeil, (2002) 96 Cal.App.4th 1302, a case cited by Vincent, that a Vehicle Code provision that had preempted a local Oakland municipal ordinance for 40 years as established by case precedent rendered an officer’s efforts to enforce the ordinance unlawful, even though the state law did not explicitly mention the ordinance in question. Division Three concluded that “the trial court was correct in concluding that 40 years was enough time for responsible officials of the Oakland Police Department to learn and to educate their officers in the field that the ordinance in question was preempted by state law. That conclusion did not depend on any fine legal parsing or guesswork, but on the plain language of the state Vehicle Code, a body of law with which police officers are expected to be thoroughly conversant.” (People v. McNeil, supra, 96 Cal.App.4th at p. 1309, italics added.) Vincent does not establish that there was an equivalent requirement that Donaldson engage in a legal parsing and guesswork of case law (including from other jurisdictions) to determine whether section 12.28.130 infringed on constitutional rights. We conclude that a prudent officer in the course of his or her duties is not required to anticipate that a court might later find section 12.28.130 to be unconstitutional under these circumstances. (See Michigan v. DeFillippo, supra, 443 U.S. at pp. 37-38; see also U.S. v. Wallace (9th Cir. 2000) 213 F.3d 1216, 1220 [officer’s mistaken impression of a legal violation was beside the point because he “was not taking the bar exam”].) It was objectively reasonable for Donaldson to rely on the validity of section 12.28.130 in carrying out his duties.
Therefore, regardless of the constitutionality of section 12.28.130, which we do not determine one way or the other herein, Donaldson’s detainment of Vincent was lawful, even if he had relied solely on Vincent’s violation of that ordinance for the detainment. This is a second, independent basis for our affirmance of the juvenile court’s orders.
DISPOSITION
The juvenile court’s orders are affirmed.
We concur: Kline, P.J. Richman, J.