Opinion
G053170
08-01-2017
In re MICHAEL F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. MICHAEL F., Defendant and Appellant.
Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher Beesley, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16DL0071) OPINION Appeal from an order of the Superior Court of Orange County, Lewis W. Clapp, Judge. Affirmed. Andrea S. Bitar, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christopher Beesley, Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
The juvenile court found 15-year-old Michael F. (born April 2000) committed misdemeanor false representation to a peace officer (Pen. Code, § 148.9, subd. (a) [count 1]; all further statutory citations are to the Penal Code unless noted) and resisting and obstructing an officer (§ 148, subd. (a)(1) [count 2]; see Welf. & Inst. Code, § 602). Michael contends police officers unlawfully detained him, and insufficient evidence supports the findings he committed the offenses. For the reasons expressed below, we affirm the order.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of January 15, 2016, Detective Anne Pliska, a uniformed police officer employed by the Santa Ana Unified School District, received a dispatch concerning a large crowd gathering near Birch and Chestnut, about a block from Santa Ana High School. School classes had just ended for the day.
Pliska approached the intersection in a marked patrol car with red and blue lights activated. A large number of young, mostly male individuals, including some Walnut Street gang members, had gathered near the corner. Two groups appeared to be "squaring off" and "face to face with each other," and it appeared "there was some sort of confrontation going on." A fight had occurred at the same location a day earlier.
The individuals dispersed as Pliska drove up. Michael quickly walked away from the groups and Pliska. As he did so, he bent over slightly, with his left arm at his waistband.
Pliska testified, that based on her experience and training, individuals often carry weapons and sometimes handguns in their waistbands. She was on "higher alert" because she had received a radio report of "shots fired" that morning or the previous day. She also was aware "[t]here had been multiple individuals shot at that location," and had responded to "several calls to that area of shots being exchanged, shots fired, vehicles being shot, subjects being shot."
Pliska stopped her vehicle, got out, identified herself as an officer, and ordered Michael to stop and to get on the ground. She was about 15 feet away from him. Michael glanced back, but continued walking, yelling "F[uck] you," with his arm at his waistband and not turning to face her directly. She again ordered him to get on the ground, drawing her gun and pointing it at him. He said "why, what did I do," but he complied, laying on the ground with his arms pinned under his body.
Pliska got on top of Michael. He again yelled, "F[uck] you. Why are you doing this?" or "fuck this. Why the fuck are you doing this?" She and a school safety officer struggled with Michael to get his arms from under his body, put them behind his back, and applied at least one handcuff. Michael winced in pain. Pliska noticed a brace on Michael's left wrist, and removed the handcuff.
Pliska seated Michael on the curb and asked for his name and date of birth. He provided the name "Carlos Garcia," and a date of birth. The information did not match official records, so she asked again for the information. He provided a school identification number that "came back to a female student." He ultimately gave his correct name and date of birth. About 20 minutes had elapsed since Pliska first asked for his name. Pliska did not find a weapon or contraband in Michael's possession.
Following a jurisdictional hearing in February 2016, the juvenile court found Michael committed the offenses noted above. The court stated it "[c]ould see why" Pliska thought Michael had a weapon, Michael "knew she was a police officer," and he "continue[d] to refuse to do what he was ordered to do . . . ." The court continued Michael as a ward of the court and ordered him released to his parents on probation subject to various terms and conditions, including community service, an anger management class, and a $50 fine.
II
DISCUSSION
A. The Evidence Shows the Officer Lawfully Detained the Minor
Michael contends Detective Pliska unlawfully detained him without reasonable suspicion that he was involved in criminal activity, and therefore the unlawful detention negates the true findings for both offenses. Both section 148 and 148.9 require lawful action by the peace officer at the time of the alleged offense. (See In re Chase C. (2015) 243 Cal.App.4th 107, 113 [an officer is not lawfully performing her duties when she detains an individual without reasonable suspicion or arrests an individual without probable cause]; In re Joseph F. (2000) 85 Cal.App.4th 975, 982 [a violation of section 148, subdivision (a), requires proof beyond a reasonable doubt the officer acted lawfully when the offense against him was committed]; see In re Manuel G. (1997) 16 Cal.4th 805, 815 [officer not engaged in performance of officer's duties when acting unlawfully].) Accordingly, if Pliska unlawfully detained Michael, insufficient evidence exists to sustain the findings he violated sections 148 and 148.9.
Section 148, subdivision (a)(1), provides, "Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment" is guilty of a misdemeanor.
Section 148.9 provides "(a) Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer . . . upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor." (Italics added.)
The standard of review is identical to the standard used to review a motion to suppress evidence arising from an illegal detention. "We defer to the trial court's factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362; see People v. Alvarez (1996) 14 Cal.4th 155, 182-185.)
Michael contends the officer had no basis to detain him, arguing: "[a] general radio report of a fight, alone, . . . is an insufficient basis on which to detain a specific individual. [Citation.] Further, when Pliska was approximately half a block away in her patrol car, the group (which had gathered just at the time school let out) began dispersing. [¶] Upon her arrival at the scene, Pliska merely seemed to focus on [Michael] as the closest person to her. Pliska saw [Michael] walking away as the group was breaking up. Pliska did not see [him] fighting or recognize [him] from any prior interaction. And there is no evidence that [he] was a gang member or was involved in any way with any of the circumstances relating to prior calls Pliska heard or responded to; [he] was merely a student, with an arm in a brace, who had just been released from school. . . . [¶] The only objective fact Pliska could articulate to support her detention of [Michael] was that he had his hand at his waist; from this fact, Pliska speculated that [he] had a weapon."
"'The Fourth Amendment permits brief investigative stops . . . when a law enforcement officer has "a particularized and objective basis for suspecting the particular person stopped of criminal activity." [Citations.] The "reasonable suspicion" necessary to justify such a stop "is dependent upon both the content of information possessed by police and its degree of reliability[,]" [citation] tak[ing] into account "the totality of the circumstances. . . ." [citation]. Although a mere '"hunch'" does not create reasonable suspicion, [citation], the level of suspicion the standard requires is "considerably less than proof of wrongdoing by a preponderance of the evidence," and "obviously less" than is necessary for probable cause . . . . [Citation.] [Citations.]' '[W]here a reasonable suspicion of criminal activity exists, "the public rightfully expects a police officer to inquire into such circumstances 'in the proper exercise of the officer's duties.'"' [Citations.]" (People v. Brown (2015) 61 Cal.4th 968, 981; see Terry v. Ohio (1968) 392 U.S. 1, 17, 20-21, 22, 27.)
Here, the totality of circumstances supported a detention. Pliska reasonably could suspect Michael was connected to one of the two groups preparing for a confrontation based on his proximity to the groups and his effort to quickly depart after seeing Pliska arrive. Given her training and experience, Pliska also reasonably could suspect Michael carried a weapon in his waistband based on his presence and proximity to the confrontation, which included gang members, and the placement of his hand near his waistband as he quickly walked away from the scene of the confrontation and the officer. A fight had occurred in the area a day earlier, Pliska was aware of "shots fired" that morning or the previous day, she was aware multiple individuals had been shot at the location, and she had responded to several calls in that area of shots being exchanged, shots fired at vehicles, and persons being shot. Under these circumstances, Pliska acted reasonably in attempting to detain Michael and learn whether he was carrying a weapon.
In the juvenile court hearing Michael challenged only the basis for the initial detention, but did not alternatively assert the officer exceeded the scope of a permissible detention when ordering Michael to the ground and handcuffing him. (See United States v. Newton (2d Cir.2004) 369 F.3d 659, 674 ["where an officer has a reasonable basis to think the person stopped poses a present physical threat to the officer or others, the Fourth Amendment permits the officer to take 'necessary measures . . . to neutralize the threat' without converting a reasonable stop into a de facto arrest," original italics]; People v. Pilster (2006) 138 Cal.App.4th 1395, 1405-1406.) Michael therefore forfeited the issue. In any event, assuming a de facto arrest occurred, Michael already had violated section 148 when he failed to comply with the officer's demand to stop.
Michael relies on In re Eskiel S. (1993) 15 Cal.App.4th 1638 (Eskiel S.). There, the officer heard a radio broadcast reporting a possible gang fight involving 10 to 12 persons, including one person possibly armed with a rifle. As the officer drove to the location, other officers advised they were pursuing several of the persons on foot through a park. When the officer saw another officer chasing several persons, the officer drove to the other side of the park to block their path. The officer ordered them to stop when they approached, but instead of complying with the officer's command, they attempted to conceal themselves in a nearby creek. The officers drew their weapons and ordered the subjects out of the creek. The minor and three others exited the creek, and a pat-search of the minor revealed a plastic bag containing cocaine. (Id. at pp. 1641-1642.)
In reversing the juvenile court's denial of a suppression motion, the appellate court concluded a general radio report of a fight is an insufficient basis to detain a specific individual. (Eskiel S., supra, 15 Cal.App.4th at p. 1644.) The Eskiel S. court explained officers in the field may detain on the basis of information furnished to them by other officers, but if challenged the prosecution must prove the source of the information was reliable and not based on something other than the imagination of an officer who does not become a witness. (Id. at pp. 1642-1643.) In Eskiel S., the officers who "possibly" saw a gang fight and "possibly" saw a rifle did not testify and therefore the information the detaining officer heard on a radio broadcast was not corroborated. (Id. at p. 1641.)
Here, Pliska saw the groups squaring off, recognized gang members in the groups, and saw Michael walking away with his hand near his waistband. The detention was based on Pliska's observation, and not based solely on factors unrelated to the defendant, such as criminal activity in the area.
Michael objected to portions of Pliska's testimony on hearsay and foundational grounds. For example, he objected when Pliska testified there had been a fight at the location the day before "amongst some residents there in the neighborhood and a student at the high school." The court struck the quoted portion of the testimony as lacking foundation. --------
Michael also relies on Guillory v. Hill (2015) 233 Cal.App.4th 240, 243. There, we overturned a directed verdict on a civil rights cause of action because plaintiffs produced sufficient evidence the officer unduly prolonged the detention to question occupants following the physical search of a residence pursuant to a search warrant. We also noted that while the search yielded a small amount of marijuana found in a bedroom where a guest had been sleeping, and one or more prohibited slot machines (apparently inoperable), this did not furnish officers with authority to detain the entire group of individuals at the scene and require them to submit to questioning without individualized suspicion. (People v. Souza (1994) 9 Cal.4th 224, 230.) Michael argues Pliska articulated "almost no" individualized suspicion about Michael, and he was "primarily caught up in a crowd that had gathered." We disagree. The circumstances show Pliska detained Michael because she reasonably suspected he might be carrying a weapon, as noted above. B. Substantial Evidence Michael Resisted or Delayed Pliska
Assuming a lawful detention, Michael contends there was insufficient evidence he resisted, delayed or obstructed Pliska in violation of section 148. He asserts he merely exercised his First Amendment rights in briefly arguing with Pliska, and he "complied with her demands almost immediately."
Section 148, subdivision (a)(1), provides: "Every person who willfully resists, delays, or obstructs any [police officer] . . . in the discharge or attempt to discharge any duty of his or her office or employment," is guilty of a crime. (See People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109 [section 148 violated when person willfully resists, delays, or obstructs a peace officer, and the defendant knew or reasonably should have known the officer was engaged in the performance of the officer's duties].)
The juvenile court explained its reasoning as follows: "[Pliska] was 15 feet away at that time. She ordered him to get on the ground. He glanced at her and continued to walk away another five or seven steps. She told him to stop at least twice and maybe three times. He continued to have his arm at his waistband and she was concerned for her safety. She told him to get on the ground, which eventually he finally did. And while on the ground, he yelled, 'Fuck you. Why are you doing this?' She got on top of him. He had his hand underneath him. They finally took his hands out handcuffed him. He appeared to be in pain and wincing. And that's when they took his cuffs off. [¶] So I think that in my view it is unreasonable to believe that the minor didn't know she was an officer, and that he complied as quickly as a person should. You know, she rolled up there in a black and white with a light bar according to her own testimony. And her uniform had a badge and patches on both arm[s] identifying her as a police officer and then with a gun as well. [¶] The court believes that the minor knew she was a police officer. And I just - and since he didn't have a weapon, I can see why she thought he did. But since he didn't, it's puzzling why he would behave in that fashion and continue to walk away, continue to refuse to do what he was ordered to do and yell out 'Fuck you.'"
As the juvenile court noted Michael ignored Pliska's order to stop and to get on the ground. He glanced back and continued walking five to seven steps, yelling expletives at the officer. He ignored the officer's command until Pliska drew her weapon and pointed it at him. This evidence supports the court's finding Michael violated section 148. The court also reasonably could infer Michael continued to resist and delay the officer by thwarting her effort to handcuff him when he kept his arms pinned under his body until Pliska got on top of him and enlisted the assistance of the school safety officer. The juvenile court reasonably could find Michael willfully resisted, delayed, and obstructed Pliska in the performance of her duties.
Michael's reliance on Chase C. supra, 243 Cal.App.4th 107 is misplaced. There, the minor told the other minors not to answer an officer's questions, and used profanity against the officer. Because the detention of the minors was unlawful, the appellate court concluded the minor's protest of the unlawful detention of others was politically protected speech. (Chase C., supra, 243 Cal.App.4th at pp. 115-116 [speech protected by First Amendment even if intended to interfere with the performance of an officer's duty "'provided no physical interference results'"].) Here, in contrast to Chase C., the juvenile court did not find Michael violated section 148 because he used expletives or questioned why he was being detained. Rather, the court found he failed to heed Pliska's command to stop, and kept walking away from her. Indeed, Michael admits he "did not immediately get on the ground when ordered," instead turning to look at the officer as he walked away.
Michael argues his "slow compliance" to comply with the officer's order cannot support liability under section 148. As the appellate court observed in People v. Quiroga (1993) 16 Cal.App.4th 961, 966, "it surely cannot be supposed that [] section 148 criminalizes a person's failure to respond with alacrity to police orders." (Id. at pp. 964-965, 966 [officer ordered the defendant to sit back down on the couch; he argued before complying with the order; officer ordered the defendant to put his hands on his lap, he was "'very uncooperative,'" but "'finally'" obeyed the order; officer didn't "'feel comfortable'" and ordered the defendant to stand up, after refusing several times, he stood up].) The evidence shows Michael did more than hesitate before complying with the officer's order to stop. Rather, he continued to walk away from the scene, stopping only when the officer drew her gun. Section 148 uses the words "resist," "delay," and "obstruct" in describing the prohibited conduct that results in a violation. The juvenile court's finding Michael willfully took five to seven steps before complying with Pliska's directive sufficed to establish he delayed the officer. We also note Michael's defiance caused the officer to draw her firearm, which heightened the danger inherent in the encounter.
III
DISPOSITION
The order is affirmed.
ARONSON, J. WE CONCUR: MOORE, ACTING P. J. IKOLA, J.