Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. SC065650C
Jones, P.J.
After the lower court denied his motion to suppress, appellant Kalolo Tausing pleaded no contest to second degree robbery. (Pen. Code, § 212.5, subd. (c).) On appeal, he contends the court erroneously denied his motion to suppress because the police officer did not have reasonable suspicion to detain him. We disagree, and we affirm.
Unless otherwise noted, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2008, the People filed a complaint charging appellant, Frank Ahio, Mafoaaeata Faleta, and Sitiveni Taufoou with second degree robbery (§ 212.5, subd. (c)), assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), battery (§ 243, subd. (d)), and receiving stolen property (§ 496, subd. (a)). The complaint also alleged various sentencing enhancements. Appellant and his codefendants moved to suppress at the preliminary hearing.
The Incident
The victim, 17-year-old John Doe, testified at the preliminary hearing pursuant to a grant of immunity. At 10:30 p.m. on November 25, 2007, Doe was walking along Hensley Avenue in San Bruno toward his house. There is an International House of Pancakes (IHOP) restaurant on Doe’s way home. As he walked along Hensley Avenue, Doe saw four young men in the IHOP parking lot. They were “[t]all, dark, [and] Polynesian.” Three men had long hair and were wearing jeans and black hooded sweatshirts; the fourth man was “skinny” and wore a white sweatshirt.
One of the men asked Doe for a cigarette and gestured at him to come over to where he and his companions were standing. Doe complied. The man in the white sweatshirt asked Doe where he was from and whether Doe wanted to smoke a “blunt,” or a marijuana cigarette. The man in the white sweatshirt also offered to sell Doe marijuana. Doe took one puff from the marijuana cigarette and told the man he wanted to purchase $10 dollars worth of marijuana. The man took Doe’s money and walked over to a small, four-door car. He did not open the car. Doe could not remember the make or model of the car.
The man wearing the white sweatshirt returned from the car but did not give Doe the marijuana. Doe became upset. At that point, a man wearing a black sweatshirt “sucker punched” Doe on the right side of his face. Doe fell to the ground and another man — whom Doe described as heavyset and wearing a black sweatshirt — began kicking him in the back. The man who threw the first punch patted Doe down to see whether he had any additional money in his pockets. The two assailants took Doe’s jacket and shoes. The four men then walked away along Angus Avenue.
The Investigation
After the incident, Doe walked home and told his sister about the incident. He said the four men involved were “young adults,” were about 5 feet 9 inches, and were Polynesian; he also may have said they were wearing dark clothes and that three of the four men had long hair. Doe’s sister called 911 at approximately 10:53 p.m. A few minutes later, San Bruno Police Officer Amanda Realyvasquez came to Doe’s house. Doe told Realyvasquez the incident began at 10:38 p.m. and described the four men involved in the incident.
According to Realyvasquez, Doe said he was “beaten up by four Polynesian males. And they took his money and his shoes and his sweatshirt.... He said three were wearing black, had long hair, and one was wearing a white sweatshirt, with short hair.” Doe also told her that all of the men involved in the attack “[f]led or ran eastbound” on Angus Street. Realyvasquez had also received a “partial description” of the men involved in the incident “over the radio.”
At 10:53 p.m., San Bruno Police Officer Jason Pasero received a report from dispatch that “approximately three or four possibly Pacific Islander males” had been involved in “some sort of fight or assault.” Pasero described the report as “somewhat vague at the time” but noted that the victim had “described some subjects having long hair.” Within 10 or 15 minutes, Pasero went to the area near the IHOP and saw a man he later identified as Ahio “ducking down” near a PT Cruiser about 500 feet from where the incident occurred. Ahio was wearing a white hooded sweatshirt; Pasero noticed a “red dot” that appeared to be “possibly blood or some type of red marking” on the front lower part of the sweatshirt. Pasero saw someone in the driver’s seat of the car but was not able to identify the person. Ahio told Pasero that he was in the area because he was “taking a piss.” Ahio also told Pasero that he was “on parole.” Pasero “relay[ed] this -- the information that [he was] out with a possible subject” to Realyvasquez.
While Realyvasquez was interviewing Doe, Pasero brought Ahio to Doe’s house. Ahio had short hair, and was wearing a white sweatshirt with a hood and jeans or black pants. Pasero showed Realyvasquez the speck of blood on Ahio’s sweatshirt. Doe refused to identify Ahio because “[h]e was worried that he would get retaliated on and was concerned for his safety.”
Pasero recalled the events differently. He testified he released Ahio after radioing Realyvasquez because Doe had refused to identify Ahio and, as a result, Pasero did not think he had enough information to arrest Ahio.
The Traffic Stop
At 11:40 p.m., approximately one hour after the incident and 40 minutes after Realyvasquez interviewed Doe, Realyvasquez was about five blocks from the IHOP when a four-door PT Cruiser caught her attention. She was able to see into the car; she noticed it contained four people. The “front passenger had long hair. The back passenger had short hair, [and was] wearing a white sweatshirt.” Realyvasquez explained, “you know, it caught my attention, so I drove out of the parking lot. And then when I got behind the vehicle, I... saw the other two subjects in the other side [of the car]. They were also wearing black and had long hair. So it was three subjects wearing all black, Polynesian males with long hair, and a fourth subject wearing a white sweatshirt, with short hair.” She could not tell whether any of the people in the car were wearing hooded sweatshirts. Realyvasquez thought the people in the car “matched the description” Doe had given her earlier in the evening. When asked whether she recognized Ahio from her interaction with him earlier in the evening, she responded, “I can’t say for sure it was him, but... as I was following the vehicle,... [it] looked like him....”
Realyvasquez pulled behind the car because it was dark and because she “was trying to get a better look into the vehicle.” She then observed the car signal for about 25 feet before changing lanes. She stopped the car for “not signaling for a hundred feet” in violation of the Vehicle Code. She contacted the driver, Taufoou, who was wearing a black shirt and had hair “past his shoulders.” Appellant was in the front passenger seat of the car. He was wearing a black shirt and black pants and had long hair. Faleta and Ahio were in the backseat. Faleta was wearing a black shirt and had long hair. Ahio was wearing a white sweatshirt and black jeans, the same clothing Realyvasquez had seen him wearing earlier in the evening. Pasero, who helped Realyvasquez with the traffic stop, noticed the car Realyvasquez stopped was same PT Cruiser he had seen earlier in the evening, and it contained Ahio.
Realyvasquez noticed appellant’s knuckles had “[f]resh scratches with... blood.” She searched the car and found Doe’s sweatshirt and a $10 bill in the pocket of the driver’s side door. Police officers searched Faleta and found marijuana.
The Motions to Suppress and the Court’s Rulings
Appellant moved to suppress at the preliminary hearing. At the conclusion of the preliminary hearing, the magistrate denied the motion to suppress and held appellant to answer the charges. The magistrate rejected the prosecutor’s argument that the PT Cruiser had violated Vehicle Code sections 22107 and 22108. The magistrate also determined, however, that Realyvasquez had “reasonable suspicion to make the temporary detention... for the following reasons[:]... When she approached the vehicle, she observed four individuals who matched the description of the persons who had assaulted the victim, three had long hair, they were of Polynesian descent, all [ ] three were in black, one had short hair, and one was dressed in white.”
Vehicle Code section 22107 provides, “No person shall turn a vehicle from a direct course or move right or left upon a roadway until such movement can be made with reasonable safety and then only after the giving of an appropriate signal in the manner provided in this chapter in the event any other vehicle may be affected by the movement.” Vehicle Code section 22108 provides, “Any signal of intention to turn right or left shall be given continuously during the last 100 feet traveled by the vehicle before turning.”
The magistrate continued, “I credit [Realyvasquez’s] testimony [and] I believe her testimony when she said that she thought one of the individuals in the car looked like Defendant Ahio, but she could not be sure. And she pulled up... behind [the car] to get a better look.... [B]ut also, another objective fact is that just approximately 50 minutes earlier, she had observed Ahio being stopped by Officer Pasero, and had seen him with a spot of blood on him. [¶] So certainly she would have been justified in wanting to inquire further as to whether or not the individual she saw in the vicinity of the IHOP or the scene of the offense, with the spot of blood on him... if he was in the company of three other Polynesian males who matched the description. She would certainly be justified in wanting to conduct further investigation concerning that.” The court also noted that the “stop took place less than an hour after Officer Realyvasquez first received the report of the incident.... And the stop occurred within the vicinity of the scene.”
Appellant renewed his motion to suppress based on the preliminary hearing transcript (§ 1538.5, subd. (i)). The court denied the renewed motion. Appellant pleaded guilty to second degree robbery and admitted the enhancement allegations. The court sentenced appellant to three years in state prison.
DISCUSSION
Standard of Review
“Where a motion to suppress is submitted to the superior court on the preliminary hearing transcript, the appellate court disregards the findings of the superior court and reviews the determination of the magistrate who ruled on the motion to suppress, drawing all presumptions in favor of the factual determinations of the magistrate, upholding the magistrate’s express or implied findings if they are supported by substantial evidence, and measuring the facts as found by the trier against the constitutional standard of reasonableness. [Citation.]” (People v. Thompson (1990) 221 Cal.App.3d 923, 940.) We exercise our independent judgment to determine “whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment[.]” (People v. Glaser (1995) 11 Cal.4th 354, 362.)
Realyvasquez Had Reasonable Suspicion to Detain the PT Cruiser
Appellant contends the magistrate erred by denying his motion to suppress for two reasons: (1) a “Nonexistent Vehicle Code Violation Cannot Justify the Detention;” and (2) Realyvasquez “Lacked Reasonable Suspicion the Occupants [of the PT Cruiser] were Involved in the Assault.” We need not address appellant’s first argument because we conclude Realyvasquez had reasonable suspicion that the occupants of the car were involved in the robbery and beating.
It is well settled that a police “officer may stop and detain a motorist on reasonable suspicion that the driver has violated the law. [Citations.]... Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip. [Citation.] But to be reasonable, the officer’s suspicion must be supported by some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’ [Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]’ [Citation.] But where 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.” [Citation.]’ [Citation.].” (People v. Wells (2006) 38 Cal.4th 1078, 1082-1083.)
Appellant argues Realyvasquez was acting on “‘mere curiosity, rumor, or hunch’ when she tailed and then detained the defendants.” We disagree. Before the traffic stop, Realyvasquez interviewed Doe, who described the men who robbed and attacked him. He told her he was “beaten up by four Polynesian males. And they took his money and his shoes and his sweatshirt.... He said three were wearing black, had long hair, and one was wearing a white sweatshirt, with short hair.” Moreover, Realyvasquez saw Ahio before the traffic stop and he — consistent with Doe’s description — had short hair and was wearing a white sweatshirt. Finally, Ahio’s sweatshirt had a speck of blood on it.
About an hour after the incident, Realyvasquez was a few blocks from the IHOP when she saw a PT Cruiser containing four Polynesian men, three of whom were wearing all black and had long hair. The fourth man had short hair and was wearing a white sweatshirt. Realyvasquez testified that she thought the people in the car “matched the description” Doe had given her earlier in the evening. She also thought that one of the occupants looked like Ahio. Based on this information, Realyvasquez could have reasonably believed the occupants of the PT Cruiser were involved in the robbery of Doe.
Appellant misstates the record when he contends Realyvasquez did not have reasonable suspicion to detain the PT Cruiser because she: (1) expressed a “lack of confidence” that the men in the car matched Doe’s description; (2) conceded it was dark; and (3) admitted she did not “have a good vantage from which to evaluate whether the occupants of the PT Cruiser might be Doe’s assailants.” Realyvasquez admitted it was dark, but she did not testify she did not have a “good vantage from which to evaluate” whether the men in the PT Cruiser matched Doe’s description. Rather, she said that she decided to pull behind the car because it was dark and she “was trying to get a better look into the vehicle.” In addition, she did not express a “lack of confidence” that the men in the car matched the description given by Doe. She stated, without equivocation, that she thought the people in the car “matched the description” Doe had given her earlier in the evening. She also said she thought one of the men in the car looked like Ahio. The magistrate concluded Realyvasquez had reasonable suspicion to detain the PT Cruiser, and substantial evidence supports the magistrate’s findings.
We are not persuaded by appellant’s contention that Doe’s description of his assailants was “too general to justify the detention.” To be sure, a “vague description does not, standing alone, provide reasonable grounds to detain all persons falling within that description[.]” (In re Carlos M. (1990) 220 Cal.App.3d 372, 381-382 (Carlos M.).) But here, Realyvasquez had more than a “vague description” of Doe’s attackers. She knew the assailants’ ethnicities, their hairstyles, and their attire. She had also seen Ahio before the traffic stop. This information, together with the proximity of the PT Cruiser to the scene of the crime, justified the detention. (See Carlos M., supra, at p. 382 [“particularized descriptions [of the victim’s assailants]... together with the additional circumstances known to the officer (i.e., [defendant’s] presence within one-half mile of the crime site, within one hour of the crime report, and his being in the presence of another man who closely resembled a described suspect) amply justified” the detention]; People v. Fields (1984) 159 Cal.App.3d 555, 563-564 [description of “‘tall, thin, black male, about 25 years old, possibly wearing jogging clothes’” was not too general to justify the detention].)
Doe also told his sister — who called 911 — that the assailants were “young men” and were approximately 5 feet 9 inches.
This case is not, as appellant suggests, similar to In re Tony C. (1978) 21 Cal.3d 888, 896-897 (Tony C.). In that case, the California Supreme Court held that a police officer did not have reasonable suspicion to detain two minors where the officer “had been informed only that the suspects in the prior burglaries were ‘three male blacks’ of unspecified ages” because “[s]uch a vague description could not reasonably have led [the officer] to suspect these two black minors were the missing culprits.” (Id. at p. 898, fn. omitted.) Here and in contrast to Tony C., the description of Doe’s assailants was not vague. Realyvasquez knew the number of men involved and their ethnicity. She also knew what they were wearing and how their hair was styled. Moreover, she thought the men in the car “matched the description” Doe had given her. As a result, Tony C. has no application here.
We conclude the lower court properly denied appellant’s motion to suppress.
DISPOSITION
The judgment is affirmed.
We concur: Simons, J., Bruiniers, J.