Opinion
H042275
11-19-2019
THE PEOPLE, Plaintiff and Respondent, v. PETE HERNANDEZ et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1356313)
I. INTRODUCTION
Defendants Pete Hernandez and Michaela Irene Roman pleaded no contest to carrying a loaded firearm. (Pen. Code, § 25850, subd. (a).) Hernandez admitted that he had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Both defendants were placed on probation for three years, with various probation conditions, and both defendants were ordered to pay probation supervision fees of $75 per month.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, Hernandez contended that the trial court erred by denying his motion to suppress evidence. (See § 1538.5, subd. (a)(1).) Both defendants challenged a probation condition requiring them to provide passwords to electronic devices and social media sites. Roman also challenged a probation condition banning her from court proceedings, and she challenged the $75 per month probation supervision fee.
In an opinion filed October 17, 2016, we affirmed the judgment. Defendants petitioned the California Supreme Court for review. On February 1, 2017, the California Supreme Court granted review, S238460, and later transferred the matter to this court with directions to vacate our decision and to reconsider the cause in light of In re Ricardo P. (2019) 7 Cal.5th 1113. We have vacated our prior decision by separate order.
In supplemental briefing, both defendants state they are no longer on probation in this case. Hernandez and the Attorney General assert that the case should be dismissed as moot, and Roman concedes that resolution of her claims by this court would have no effect.
Having reconsidered the cause in light of In re Ricardo P., we will affirm the judgment against Hernandez and dismiss Roman's appeal as moot.
II. BACKGROUND
A. The Search
At about 11:13 p.m. on May 5, 2013, San Jose Police Officers Tony Diep and Casey Higgins were driving in an unmarked patrol vehicle on Santa Clara Street near 20th and 21st Street. The officers had gone to that area in response to a report that people were throwing bottles at other officers at 19th Street and Santa Clara Street. The area, which was around Roosevelt Park, typically had a lot of crime and gang activity, particularly around Cinco de Mayo. Norteño gang members often congregated at Roosevelt Park.
The officers noticed a group of about eight to 10 people walking in a direction away from Roosevelt Park. Three of the people were walking "really close together," about five or six feet behind the others. The three people were defendant Hernandez, defendant Roman, and Roman's boyfriend at the time, named Blanco. Blanco was wearing a San Jose Sharks shirt and hat, which were items often worn by Norteño gang members. Officer Diep noticed that the crossing light was showing a red hand as the group crossed the street.
Officer Diep saw Roman hand Hernandez a black object that appeared to be a tall can of beer. Roman had taken the object out of her waistband area. After receiving the object, Hernandez looked to the right and the left. Officer Diep suspected the object, if it was a beer can, might have been intended to be used as a weapon, since other people had been throwing bottles nearby. Officer Diep's suspicions were aroused by the fact that Hernandez had made furtive movements and had attempted to conceal the object upon receiving it from Roman, and by the fact that the object came from Roman's waistband area, since contraband is often concealed in the waistband area.
Officer Higgins also observed Roman hand an object to Hernandez. He saw Hernandez place the object in his waistband area underneath the large Pendleton he was wearing. Officer Higgins believed the object was likely illegal, based on the attempts to conceal it as well as the fact the area was "a known gang area," the fact that it was Cinco de Mayo and people often drink at the park on that holiday, and the fact that the group was coming from the direction of the area where bottles had been thrown at officers. Officer Higgins knew that Norteño gang members often conceal weapons in their waistband area.
A Pendleton is a quilted plaid shirt.
The officers made a u-turn, parked across the street from the group, and exited their vehicle. At that point, Officer Higgins noticed that Hernandez had a red bandana in his back pocket. He ordered the three individuals to stop.
Officer Higgins contacted Hernandez and did a pat search for weapons. He felt the butt of a gun in Hernandez's waistband area. As Officer Higgins began to pull the gun out of Hernandez's waistband area, Hernandez dropped his arms and ran. As Hernandez ran, the gun fell to the ground. Officer Diep retrieved the gun, which was a loaded revolver inside of a holster. Meanwhile, two other officers stopped Hernandez.
Officer Diep arrested Roman and read her the Miranda advisements. Roman denied being a gang member but admitted some of her family members were gang members. Officers looked through photographs on Roman's cell phone and found a picture of her holding a revolver similar to the one Hernandez had dropped.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
Officer Higgins read the Miranda advisements to Hernandez. Hernandez said he was carrying a gun because "it's crazy out there."
B. Motions to Suppress
Roman filed a motion to suppress on October 29, 2013, and a supplemental motion to suppress on May 2, 2014, challenging her detention. Hernandez joined in the motion. The magistrate heard and denied the motion during the preliminary hearing, on June 17, 2014. (See § 1538.5, subd. (f).)
Hernandez filed a renewed motion to suppress on August 26, 2014, again challenging his detention as well as the pat search. (See § 1538.5, subd. (i).) The trial court denied the motion on October 6, 2014.
C. Pleas , Admissions , and Sentencing
On February 2, 2015, defendants both pleaded no contest to carrying a loaded firearm (§ 25850, subd. (a)) and Hernandez admitted that he had committed the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(A)). Both defendants were placed on probation for three years, with various probation conditions, and both defendants were ordered to pay probation supervision fees of $75 per month.
III. DISCUSSION
Although Hernandez asserts in supplemental briefing that his appeal should be dismissed as moot because he is no longer on active probation in this case, his completion of probation does not render his suppression claim moot because resolving the claim in his favor would result in " 'effectual relief.' " (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541 (Eye Dog Foundation).) --------
Hernandez contends the trial court erred by denying his motion to suppress. Hernandez claims that his detention was not justified because the officers did not have a reasonable suspicion that he was engaged in criminal activity and that the pat search was not justified because the officers did not have a reasonable suspicion that he was armed.
1. Standard of Review
"In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court's resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]" (People v. Ramos (2004) 34 Cal.4th 494, 505.)
2. Reasonableness of the Detention
"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 (Souza).)
Hernandez argues that the officers did not have a reasonable suspicion that he was involved in criminal activity because they could not "determine what kind of object was being passed" to him by Roman. Hernandez acknowledges that the officers saw the object "being stored in waistbands," and that he looked to his right and left after receiving the object from Roman, but he contends these facts were insufficient to support a reasonable suspicion that the object was illegal. Hernandez asserts both officers merely had a "hunch" that the object was an open beer can or a weapon, and he contends that a "hunch" cannot support a detention.
The California Supreme Court has found a detention justified where the officer "felt a 'possible crime' was occurring" but "expressed some uncertainty as to the nature of the criminal activity he suspected." (People v. Leyba (1981) 29 Cal.3d 591, 599 (Leyba).) The Leyba court noted that an officer may have a reasonable suspicion of criminal conduct even where " '[the] possibility of an innocent explanation' " exists, and that " 'the principal function' " of a detention " 'is to resolve that very ambiguity and establish whether the activity is in fact legal or illegal.' " (Ibid.)
In Leyba, officers were investigating a reported grand theft at 11:30 p.m. in an area near a school. (Leyba, supra, 29 Cal.3d at pp. 594-595.) The area was known to have gang activity, and there had been prior burglaries at the school. (Id. at p. 595.) One of the officers observed two cars—one in the school parking lot and one driving by the school—blink their headlights at each other. (Ibid.) The parked car then followed the other car. Suspecting illegal activity of some sort, the officers pursued the cars and stopped the lead car, of which the defendant was an occupant. The Supreme Court upheld the detention, finding that the officer had "articulated facts sufficient to raise a reasonable suspicion and justify the detention of the automobile and its occupants." (Id. at p. 600, fn. omitted.) Specifically, "The lateness of the hour; the blinking of headlights by the two cars, one parked in a closed school, so as to indicate signal[]ing; the following of one by the other are all facts which support [the officer's] suspicions when evaluated in the light of his training and experience, and his knowledge of ongoing gang activity and the occurrence of a number of school burglaries in the area." (Ibid.)
In the instant case, similar factors support the detention. The detention occurred at a late hour, just as in Leyba. (See also Souza, supra, 9 Cal.4th at p. 241 ["The time of night is another pertinent factor in assessing the validity of a detention."].) Defendants were observed in an area known for gang activity and near an area where officers had recently been assaulted by persons throwing bottles. (See Leyba, supra, 29 Cal.3d at pp. 595, 600; Souza, supra, at p. 240 ["An area's reputation for criminal activity is an appropriate consideration in assessing whether an investigative detention is reasonable under the Fourth Amendment."].) Officers Diep and Higgins observed Hernandez and Roman engage in behavior that was consistent with criminal activity, like the signaling observed in Leyba: Roman took an object from her waistband, then passed it to Hernandez, who looked around and placed it in his waistband. The officers knew that people often place contraband in the waistband area, and "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion." (Illinois v. Wardlow (2000) 528 U.S. 119, 124 (Wardlow); see also Souza, supra, at p. 241 ["evasive actions" can add support to an officer's suspicion that criminal activity is afoot].)
This case is not like People v. Hester (2004) 119 Cal.App.4th 376 (Hester), which Hernandez relies on. In Hester, officers were on patrol at nighttime, in East Side Crips territory. (Id. at p. 382.) A drive-by shooting had occurred earlier that night, and members of the East Side Crips were suspected as being responsible. The officers saw four Black young adult males driving in a Chevrolet, and they knew that one of the males was a member or associate of the East Side Crips. (Id. at p. 383.) Two other vehicles had been driving next to the Chevrolet, but both vehicles changed lanes and began following the Chevrolet. The officers then stopped the Chevrolet and detained its occupants, including the defendant. A search of the Chevrolet revealed a firearm and narcotics. (Id. at p. 384.)
The Hester majority held that the trial court should have granted the defendant's motion to suppress because the officer had not stated "any facts to indicate the occupants in this car were engaged in criminal activity" but had stopped the Chevrolet based on "assumptions, beliefs, opinions and guesswork." (Hester, supra, 119 Cal.App.4th at p. 390.) The officer had essentially instituted the detention "because a passenger in the vehicle was a member of the East Side Crips," but "without additional facts supporting an inference of criminal activity." (Id. at p. 392.)
Here, the officers did not detain Hernandez and Roman based on an assumption that they were members of a gang that had recently been involved in criminal activity. Rather, the officers observed Hernandez and Roman engage in behavior—the passing of some kind of contraband—that indicated they were possibly engaged in criminal activity at the time. In sum, the instant case is not, as Hernandez contends, one in which the officers had only "an 'inchoate and unparticularized suspicion or "hunch" ' of criminal activity. [Citation.]" (Wardlow, supra, 528 U.S. at p. 124, fn. omitted.) Considering the totality of the circumstances, the officers in this case specified facts that provided an "objective manifestation" that defendants were involved in criminal activity, and thus the detention was justified. (Souza, supra, 9 Cal.4th at p. 231.)
3. Reasonableness of the Pat Search
An officer may conduct a pat search for weapons if there is "reason to believe" that the individual is "armed and dangerous." (Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry).) "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent [person] in the circumstances would be warranted in the belief that [the officer's] safety or that of others was in danger." (Ibid.)
Hernandez asserts that the officers "were investigating whether Hernandez was carrying an open container of beer, not whether he was carrying a weapon," and thus that they did not have a reasonable suspicion that he was armed and dangerous.
The record contradicts Hernandez's claim that the officers did not suspect he was carrying a weapon. Officer Diep testified that even if the object passed from Roman to Hernandez was a beer can, it might have been intended to be used as a weapon, since other people had been throwing bottles nearby. Officer Diep also testified that contraband is often concealed in the waistband area. Officer Higgins testified that he believed the object was illegal and that he knew that Norteño gang members often conceal weapons in their waistband area.
The facts here are similar to those in In re H.M. (2008) 167 Cal.App.4th 136, in which the court upheld a pat search for weapons. In that case, the minor was seen running through traffic and acting nervously and evasively. The location was known for gang activity and there had been a gang-related shooting the previous day. (Id. at p. 140.) An officer recognized the minor, which led the detaining officer to conclude the minor had previous police contacts. The court held that these were "specific, articulable facts" supporting a reasonable belief that the minor "had been involved in a crime, and was likely armed." (Id. at p. 148.)
Under the circumstances of the instant case, a reasonable officer would have been warranted in the belief that Hernandez was armed and dangerous. The officers observed Roman take an object out of her waistband and pass it to Hernandez, who looked around evasively and placed it into his own waistband—an area that is often used to conceal weapons and other contraband. The detention occurred in an area known for gang activity, near a location where people had been throwing bottles at police officers. Considering the actions of defendants Hernandez and Roman, the location, and the recent bottle-throwing incident, the facts here supported a reasonable suspicion that Hernandez was armed, thus justifying the pat search. (Terry, supra, 392 U.S. at p. 27.)
B. Defendants' Challenges to Probation Conditions
Both defendants initially challenged the imposition of probation conditions that required them to provide "all passwords to any electronic devices, including, but not limited to, cellular telephones, computers, or note pads within your custody or control," to "submit said devices to search at any time without a warrant by a peace officer," to "provide all passwords to any social media sites, including, but not limited to, Facebook, Instagram, and MocoSpace," and to "submit said sites to search at any time without a warrant by a peace officer." In addition, Roman challenged the imposition of a probation condition that required her to "not knowingly be present at any court proceeding where you know or your probation officer informs you that a member of a criminal street gang is present or that the proceeding concerns a member of a criminal street gang unless you are a party, you're the defendant in a criminal action, you are subpoenaed as a witness or a member of your immediate family is the victim of activity charged in the case, a party's attorney has asked you to testify or speak in court, or you have prior permission of your probation officer," and the imposition of a $75 per month probation supervision fee.
Both defendants have completed their grants of probation in this case. Hernandez asserts that the appeal should be dismissed as moot and Roman concedes that "resolution of [her] claims by this court will not have an effect on her."
" 'An action that involves only abstract or academic questions of law cannot be maintained. [Citation.] And an action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect.' " (People v. Herrera (2006) 136 Cal.App.4th 1191, 1198 (Herrera); see also Eye Dog Foundation, supra, 67 Cal.2d at p. 541 [if no effectual relief can be granted, an appeal will be dismissed as moot].)
Hernandez's completion of probation in this case renders his challenge to the electronics search condition moot. (See Herrera, supra, 136 Cal.App.4th at p. 1198.) Accordingly, we will dismiss Hernandez's electronics search condition claim as moot. (See ibid.)
Roman's completion of probation in this case renders the entirety of her appeal moot because all of her claims challenge probation conditions and a reversal based on any of the claims "would be without practical effect." (Herrera, supra, 136 Cal.App.4th at p. 1198.) Accordingly, we will dismiss Roman's appeal as moot. (See ibid.)
IV. DISPOSITION
The judgment against Hernandez is affirmed.
Roman's appeal is dismissed as moot.
/s/_________
BAMATTRE-MANOUKIAN, J. WE CONCUR: /s/_________
ELIA, ACTING P.J. /s/_________
MIHARA, J.