Opinion
F061531
10-13-2011
In re JOSE O., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. JOSE O., Defendant and Appellant.
Michael Cobden, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Doris A. Calandra and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 512281)
OPINION
THE COURT
Before Levy, Acting P.J., Gomes, J., and Poochigian, J.
APPEAL from a judgment of the Superior Court of Stanislaus County. Nan Cohan Jacobs, Judge.
Michael Cobden, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Doris A. Calandra and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
Following the denial of his motion to suppress evidence (Welf. & Inst. Code, § 700.1), appellant, Jose O., a minor, admitted allegations that he committed two counts of felony possession of a dangerous weapon (Pen. Code, § 12020, subd. (a)(1), count 1(brass knuckles), and count 2 (butterfly knife)). At the subsequent disposition hearing, the juvenile court reduced both counts to misdemeanors, adjudged appellant a ward of the court, and placed him on probation.
On appeal, appellant's sole contention is that the court erred in denying his suppression motion. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We set forth the relevant facts, which we take from the hearing on the suppression motion, in the light most favorable to the trial court's ruling on the motion. (See People v. Miranda (1993) 17 Cal.App.4th 917, 922 ["In reviewing the denial of a motion to suppress evidence, we view the record in the light most favorable to the trial court's ruling and defer to its findings of historical fact, whether express or implied, if they are supported by substantial evidence"].)
At approximately 8:41 p.m. on August 26, 2010, City of Ceres Police Officer Jeremy Lewis was on duty by himself, in a police car, when he saw a car that "attracted [his] attention." The car, the officer explained, "had yellow front lights, which is illegal lighting. It was about 400 yards away. I couldn't really tell exactly what it was. It was really dim lighting.... It had yellow lights and not white lights, which is illegal. So I waited for him to pass by." Thereafter, Officer Lewis stopped the car, and saw that there were two male adults in the front seat, the driver and a passenger, and that appellant and a small child were in the backseat.
Except as otherwise indicated, our factual statement is taken from Officer Lewis's testimony at the suppression motion hearing.
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After obtaining driver's licenses from the adults, and after appellant, who did not have a driver's license, gave his name and date of birth, Officer Lewis returned to his patrol car, "ran all the names," and learned that the driver was the subject of an outstanding misdemeanor arrest warrant. At about that time, Officer Brian Peterson arrived on the scene. At that point, Officer Lewis decided to have all four persons get out of the car, arrest the driver, and search the vehicle for weapons.
Shortly thereafter, the adult passenger, whose name was Juan Nilla, Jr. and who was wearing a red jersey with the number 14 on it, "admitted to being an active Northerner gang member." Norteno gang members "usually" wear some item of red clothing, and Nilla's apparel further "raise[d] [the officer's] suspicion that [Nilla was] a gang member." As a result, Officer Lewis, who had "concerns for [his] safety," decided to conduct a patsearch of Nilla to determine if he had any weapons.
Officer Peterson testified to the following: He heard Nilla identify himself as a "Northerner" and he asked Nilla and appellant to exit the car. Appellant was wearing a red baseball cap and a set of red rosary beads. "[G]ang members typically are ones known to carry potential weapons ...." Officer Peterson conducted a patsearch of appellant, during which he felt, in one of appellant's pants pockets, what the officer thought was a set of brass knuckles. He placed appellant in handcuffs, reached into appellant's pocket and removed what was, in fact, a set of brass knuckles.
Motion to Suppress Evidence
In his moving papers, appellant argued suppression of evidence was required for two reasons. First, he argued, "there was no legal justification to detain [appellant]" because appellant "had nothing to do with" the basis for the vehicle stop or the warrant for the driver's arrest, and there was no evidence that appellant "was doing anything illegal or even suspicious." (Unnecessary capitalization omitted.) Second, he asserted that the patsearch conducted by Officer Peterson violated appellant's Fourth Amendment rights because "there are no facts ... to support any objectively reasonable conclusion that [appellant] was armed." The People, in their opposition papers, disputed both points, arguing that both the detention and the patsearch were constitutionally reasonable. At the hearing on the suppression motion, defense counsel argued the second of his points and made no mention of the first.
DISCUSSION
"The Fourth Amendment protects against unreasonable searches and seizures. [Citations.] '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.' [Citation.] Ordinary traffic stops are treated as investigatory detentions for which the officer must be able to articulate specific facts justifying the suspicion that a crime is being committed." (In re Raymond C. (2008) 45 Cal.4th 303, 307.) "The People have the burden to prove the detention was justified." (People v. Benites (1992) 9 Cal.App.4th 309, 320.)
Appellant first argues that the vehicle stop in the instant case was constitutionally unreasonable—and that therefore all evidence discovered as result of the stop should have been suppressed—because the prosecution did not establish that Officer Lewis had reasonable cause to believe the driver of the car violated the law. Specifically, he notes that Officer Lewis's stated reason for stopping appellant's car—that the car "had yellow lights and not white lights, which is illegal"—does not establish the driver violated the law because Vehicle Code section 25950 provides: "The emitted light from all lamps ... visible from in front of a vehicle, shall be white or yellow ...." (Italics added.) Appellant may not raise this claim on appeal.
In People v. Williams (1999) 20 Cal.4th 119 (Williams), our Supreme Court examined the specificity with which a defendant must make a motion to suppress evidence pursuant to Penal Code section 1538.5. "[W]hen the basis of a motion to suppress is a warrantless search or seizure, the requisite specificity is generally satisfied, in the first instance, if defendants simply assert the absence of a warrant and make a prima facie showing to support that assertion." (Williams, supra, 20 Cal.4th at p. 130.) Once the defendant meets the foregoing specificity requirement, "[t]he prosecution ... has the burden of proving some justification for the warrantless search or seizure ...." (Id. at p. 136.)
But, the court stated further, "once the prosecution has offered a justification for a warrantless search or seizure, defendants must present any arguments as to why that justification is inadequate. [Citation.] Otherwise, defendants would not meet their burden under section 1538.5 of specifying why the search or seizure without a warrant was 'unreasonable.' This specificity requirement does not place the burden of proof on defendants. [Citation.] [T]he burden of raising an issue is distinct from the burden of proof. The prosecution retains the burden of proving that the warrantless search or seizure was reasonable under the circumstances. [Citations.] But, if defendants detect a critical gap in the prosecution's proof or a flaw in its legal analysis, they must object on that basis to admission of the evidence or risk forfeiting the issue on appeal." (Williams, supra, 20 Cal.4th at p. 130, italics added.) "Defendants cannot ... lay a trap for the prosecution by remaining completely silent until the appeal about issues the prosecution may have overlooked." (Id. at p. 131.) "Defendants who do not give the prosecution sufficient notice of [the] inadequacies [in the prosecution's proposed justification for a warrantless search or seizure] cannot raise the issue on appeal." (Id. at p. 136.) "'This is an elemental matter of fairness in giving each of the parties an opportunity to adequately litigate the facts and inferences relating to the adverse party's contentions.'" (Ibid.)
To the extent appellant challenged his detention in the proceeding below, he did so solely on the ground that his conduct did not provide a reasonable basis to conclude that he was engaged in illegal activity. In the trial court, the People, in response to that contention, argued that appellant was a passenger in a car stopped for a Vehicle Code violation, and therefore the detention was lawful. Now for the first time, on appeal, appellant asserts, in effect, that he has "detect[ed] a critical gap in the prosecution's proof and/or "a flaw in [the prosecution's] legal analysis" (Williams, supra, 20 Cal.4th at p. 130), i.e., he claims the vehicle stop was unlawful. But appellant did not raise this point in the trial court. Therefore, because he was "completely silent until the appeal" (Id. at p. 131) on the legality of the vehicle stop, under Williams he may not urge this point on appeal.
Appellant argues that notwithstanding our Supreme Court's unqualified statement in Williams, supra, 20 Cal.4th at p. 136 that "Defendants who do not give the prosecution sufficient notice of [the] inadequacies [in the prosecution's proposed justification for a warrantless search or seizure] cannot raise the issue on appeal" (italics added), this court may, in its discretion, address appellant's challenge to the lawfulness of the vehicle stop, and should do so. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6 ["An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] Indeed, it has the authority to do so. [Citation.] ... Whether or not it should do so is entrusted to its discretion"].) Assuming without deciding that we have such discretion, we decline to exercise it. As indicated above, the question presented by this argument is one of "elemental ... fairness ...." (Williams, supra, 20 Cal.4th at p. 136.) The record does not preclude the possibility that the driver of the vehicle was in violation of the Vehicle Code or some other law. For example, Officer Lewis testified the headlights on the car were "really dim," and the state of the record precludes any determination of whether the headlights met light intensity requirements (e.g., Veh. Code, § 24407). Because appellant did not argue below that the police acted unlawfully in stopping the vehicle, the prosecution had no reason to put on additional evidence regarding the lighting or other aspects of the operation of the vehicle that would justify a stop of the vehicle. Accordingly, it would be unwarranted to assume no such evidence exists and unfair to entertain a challenge to the vehicle stop where the prosecution has been effectively denied the opportunity to respond to such a challenge.
Appellant also argues that the search of his person was constitutionally impermissible because it was the product of a detention, "the evident purpose [of which] was to search the occupants of the vehicle for drugs, weapons or some other offense for which they could be arrested," and which was therefore "nothing more than a pretext for an illegal search." As best we can determine, this argument is based on the premise that a search is rendered unlawful if it is the product of a vehicle stop motivated by a police officer's desire to search for evidence unrelated to the reason for the stop. This premise, however, is invalid. A police officer's subjective intentions "play no role in ordinary, probable-cause Fourth Amendment analysis." (Whren v. U.S. (1996) 517 U.S. 806, 813 [a traffic stop yielding illegal drugs was valid despite vice officers' subjective motivation so long as there was probable cause to believe a traffic violation had occurred].) Thus, a stop for a Vehicle Code violation is valid even if it is used as a pretext to search for evidence of other crimes. (People v. Uribe (1993) 12 Cal.App.4th 1432.) In any event, it will suffice to point out that (1) appellant did not make this argument below, and (2) it is, in essence, a repeat of the claim that the vehicle stop was unlawful. Accordingly, appellant is precluded from making this argument on appeal. (Williams, supra, 20 Cal.4th at p. 119.) Moreover, assuming for the sake of argument that we may nonetheless, in the exercise of our discretion, address this contention on the merits, for the reasons set forth above, we decline to do so.
Finally, appellant argues that the search conducted by Officer Peterson was invalid "because the officers had no reason to believe that [appellant] was armed and dangerous." (Emphasis and unnecessary capitalization omitted.) This contention is without merit.
The United States Supreme Court has recognized that "traffic stops are 'especially fraught with danger to police officers[,]'" not "'from the ordinary reaction of a motorist stopped for a [traffic] violation, but from the fact that evidence of a more serious crime might be uncovered during the stop.'" (Arizona v. Johnson (2009) 555 U.S. 323, ____ [129 S. CT. 781, 786, 787].) To protect officer safety during a routine traffic stop, an officer "'may perform a "patdown" of a driver and any passengers upon reasonable suspicion that they may be armed and dangerous.'" (Ibid.)
In evaluating the validity of an officer's investigative or protective conduct, the "touchstone of our analysis ... is always 'the reasonableness in all the circumstances of the particular governmental invasion of a citizen's personal security.'" (Pennsylvania v. Mimms (1977) 434 U.S. 106, 108-109.) Although "[t]he officer need not be absolutely certain that the individual is armed" (Terry v. Ohio (1968) 392 U.S. 1, 27 (Terry)), he or she must be able to "'point to specific and articulable facts which, taken together with rational inferences from those facts,' would warrant the intrusion." (People v. Souza (1994) 9 Cal.4th 224, 229.) "[T]he issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger." (Terry, supra, 392 U.S. at p. 27.) The "critical question" in assessing whether a patsearch or "frisk" for weapons is permissible is whether this is "the kind of confrontation in which the officer can reasonably believe in the possibility that a weapon may be used against him" or her. (People v. Superior Court (1972) 7 Cal.3d 186, 204 [routine traffic stop, without more, does not justify patsearch for weapons].) A court looks to the totality of the circumstances in determining the reasonableness of a challenged search. (Terry, supra, 392 U.S. at pp. 24, 27.) "The judiciary should not lightly second-guess a police officer's decision to perform a patdown search for officer safety. The lives and safety of police officers weigh heavily in the balance of competing Fourth Amendment considerations." (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
Here, the People presented evidence of the following: appellant was wearing a red baseball cap and a set of red rosary beads; members of some criminal street gangs usually wear some item of red apparel; and appellant was in the company of an admitted gang member, who was also wearing red. This evidence is sufficient to give rise to a reasonable suspicion that appellant was a gang member. Moreover, Officer Peterson testified that gang members "typically" carry weapons, and, as recognized in People v. King (1989) 216 Cal.App.3d 1237, 1241, detention of a known gang member carries an increased likelihood the detainee is armed and dangerous and a corresponding increased risk of harm to the officer. (Cf. People v. Castaneda (1995) 35 Cal.App.4th 1222, 1230 (Castaneda)[reasonable to patdown suspected burglar because they frequently carry weapons]; People v. Limon (1993) 17 Cal.App.4th 524, 534-535 (Limon) [fact that suspected drug dealers frequently carry weapons properly considered in determining whether patsearch was justified]; see People v. Montes (2003) 31 Cal.4th 350, 360-361 [quoting Proposition 21's findings and declarations that "'[c]riminal street gangs have become more violent ... in recent years'"].) Given that the facts were sufficient to give rise to a reasonable suspicion that appellant was a gang member, Officer Peterson's testimony that gang members typically carry weapons, and the well-documented propensity of gang members to be violent, a reasonably prudent person in Officer Peterson's position could conclude that appellant posed a danger justifying a patsearch.
In addition, we note two other factors that support our conclusion. First, the vehicle stop in the instant case occurred at 8:41 p.m. (People v. Satchell (1978) 81 Cal.App.3d 347, 354 [upholding patsearch for weapons based on, in part, the fact that "[t]he area was dark and preparatory movements by defendant and his [companion] might easily go unnoticed"].) Second, the two officers here were confronted with appellant, who was 16 years old at the time, and two adults. Whether the police do or do not have a numerical advantage over the suspect(s) is also a relevant factor in determining the reasonableness of a patsearch. (Cf. Limon, supra, 17 Cal.App.4th at p. 534 [relevant factors included that police were outnumbered]; Castaneda, supra, 35 Cal.App.4th at p. 1230 [relevant factors included that police were outnumbered].)
We do not suggest that these latter two factors would be sufficient, either singly or in combination with each other, to justify the patsearch of the appellant. Rather, they add to the showing that the situation confronting the two officers here presented them with specific and articulable facts from which a reasonably prudent officer could conclude that his or her safety was threatened. Therefore, the patsearch was justified.
DISPOSITION
The judgment is affirmed.