Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JV121307
BLEASE, Acting P. J.
Aaron A., a minor, was charged with robbery and conspiracy to commit robbery. Following a combined jurisdictional hearing and motion to suppress evidence, which the juvenile court granted in part, the court sustained the charge of robbery, but not the conspiracy charge. The minor was committed to the Sacramento County Boys Ranch with various probationary conditions.
The minor sought suppression of evidence of items found by police in an apartment where he was found hiding, evidence of his being identified in an in-field showup by the victim, and evidence of his confession to the robbery. The court suppressed the items found in the apartment and the minor’s confession, but not the in-field showup.
On appeal, the minor contends (1) the juvenile court erred when it refused to suppress both his in-field and in-court identifications, and without these identifications the remaining evidence was insufficient to sustain the robbery charge, (2) that even if the foregoing identifications are not excluded the evidence is insufficient to support the robbery finding, and (3) various conditions of probation imposed by the court must be modified. We reject the first two contentions, however, we conclude some, but not all, of the challenged probation conditions must be modified. Accordingly, we shall make the modifications.
FACTS
At approximately 5:30 p.m. on November 12, 2005, a male caller placed an order with Pizza Hut for two pizzas to be delivered to apartment 110 at a complex on Marconi Avenue in Sacramento. Michael Dick arrived at the complex with the pizzas about 6:15 to 6:20 p.m. and saw two African-American males standing near a building to one side. Both appeared to be from 16-to-20 years old, and both were about 5’8” to 5’9” tall with average builds. One was wearing a dark jacket, had a small bushy afro and may have been wearing a beanie. The other had a little chin hair, short “buzz-cut type” hair, and was wearing a sweatshirt. Dick observed their faces for about five seconds as he walked past them on his way to apartment 110.
A woman answered the door of apartment 110 and told Dick that she had not ordered the pizzas. As Dick was walking back to his car, he was confronted by the two persons he had previously seen, and whom he later identified as Eddie Chambers and the minor. Chambers pushed Dick against a wall while the minor, who held a baseball bat in a threatening manner, went through Dick’s pockets. The minor took $15 from Dick along with a pocket knife and a small can of pepper spray. Chambers took Dick’s pizza bag, then he and the minor ran toward the middle of the complex.
Dick immediately drove to the front of the complex where he called 911 and reported the robbery. Sheriff’s deputies arrived at the complex within five minutes and were told of the robbery by Dick, including a description of the robbers. Using a reverse directory, the sheriff’s communication center informed Deputy Jack Noble, who was at the crime scene, that the address associated with the telephone number given by the person who had placed the pizza order was apartment 99 which was in the same complex as apartment 110.
Between 6:50 and 7:00 p.m., Deputies Noble and Matt Tamayo went to the front door of apartment 99 while one other K-9 deputy went to the back of the apartment. Noble knocked and a female adult, with a male adult beside her, opened the door. Noble explained to the female why the officers were there and asked her if there was anybody else inside the apartment. She replied that nobody else was inside. Noble asked if she had any children and she said that she did, but she had not seen them since 6:00 a.m. that morning.
As Noble continued to speak with the female, he heard an officer at the rear of the apartment state over his radio that he could see two people moving on the balcony. While still standing at the front door, and from a distance of 10 yards or so, Noble saw two people in the process of standing up. Both were African-American males, teenagers or young adults. Noble and Tamayo immediately entered the apartment and went directly to the balcony where they arrested the minor and Chambers.
The deputies found Dick’s can of pepper spray at Chambers’ feet and Dick’s pocket knife in Chambers’ pocket. On a table in the kitchen the officers saw two empty Pizza Hut boxes. Tamayo looked into two bedrooms to see if anyone else was present and found a baseball bat and a Pizza Hut warmer bag, although he did not say precisely where in the bedrooms he found these items.
Dick was taken by police car to the back of the apartment complex for an in-field showup. Dick was told the persons he would be shown may or may not have been involved in the robbery. While Dick sat in the police car, the minor and Chambers were brought out one at a time and a light was shined on them. Dick identified the minor and Chambers as the individuals who had robbed him.
Dick was returned to his car. The pepper spray, pocket knife and pizza bag were inventoried and then returned to him.
After being advised of his constitutional rights per Miranda, the minor confessed to participating in the robbery.
Juvenile Court’s Ruling Regarding The Minor’s Suppression Motion
The juvenile court found that the officers lacked probable cause to arrest the minor and Chambers at the time they observed them on the balcony of apartment 99, and therefore, their entry was illegal. Consequently, the court suppressed the pepper spray can, the pocket knife, the pizza bag, and the baseball bat. The court also suppressed the minor’s confession, finding that the unlawfully seized items left him little choice but to confess. However, the court refused to suppress either the in-field or in-court identifications, finding that even though the arrest of the minor was without probable cause these identifications were still “fairly presented.”
DISCUSSION
I
The minor contends the juvenile court erred in denying his motion to suppress his in-field and in-court identifications by Dick, and that without these identifications the evidence is insufficient to support the sustaining of the robbery charge. Not so.
As the minor sees it, his in-field identification should have been suppressed because it was the product of his being arrested inside apartment 99 without the arresting officers having either probable cause to make the arrest prior to their entry or exigent circumstances justifying their warrantless entry. And his in-court identification should have been suppressed because it was the product of his illegal arrest coupled with the officers having returned to Dick the items stolen from Dick, which the officers had illegally seized, and which improperly reinforced Dick’s belief that his in-field identification had been accurate.
We reject both arguments because, as explained below, the premise upon which the minor’s arguments depend -- that the officers lacked both probable cause to arrest him prior to their entry and exigent circumstances justifying the entry -- is false as a matter of law. Thus, neither the in-field nor the in-court identification was the product of any illegal procedure employed by the officers.
“In reviewing the trial court’s ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness. [Citation.]” (People v. Hughes (2002) 27 Cal.4th 287, 327.)
The People argued to the trial court that based upon all of the information known to the officers at the time they observed the minor and Chambers on the balcony they had probable cause to arrest them, and that fresh pursuit and potential destruction of evidence were exigent circumstances justifying their warrantless entry. The court responded that it was finding there was no probable cause because even though the reverse directory had established that somebody in apartment 99 had something to do with the crime, the evidence did not establish that the perpetrators had returned to the apartment, no witnesses had seen the perpetrators return to the apartment, the perpetrators could have eaten the pizza elsewhere, and “these two individuals could have been 40 years old.” We disagree with the court’s reasoning and findings.
Nothing in the record supports the possibilities the robbers could have been 40 years old. Indeed, the only evidence on this point was Dick’s description that the perpetrators were 16-to-20 years old.
To be lawful, a warrantless entry into a residence to make an arrest requires probable cause to believe the suspect has committed a crime plus either consent or the existence of exigent circumstances. (People v. Thompson (2006) 38 Cal.4th 811, 817-818; Conway v. Pasadena Humane Society (1996) 45 Cal.App.4th 163, 172.)
Existence of Probable Cause
“Probable cause exists when the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” (People v. Celis (2004) 33 Cal.4th 667, 673.)
In all material aspects, the facts are uncontested. At the time Deputy Noble went to the door of apartment 99 it was between 6:50 and 7:00 p.m., only about one-half hour after the robbery of Dick. Noble had good reason to suspect that the ruse by which Dick had been set up to be robbed had originated in apartment 99 because the reverse directory gave apartment 99 as the location from which the pizza had been ordered. Noble had been told the robbers were two African-American males, 16-to-20 years old, 5’8” to 5’9” tall and had medium builds. He also knew they were extremely dangerous because they had used a baseball bat to commit the robbery.
After Noble informed the female who answered the door to apartment 99 of the officers’ purpose in being there and being told by her that no one else was in the apartment, he heard an officer at the rear of apartment 99 state over his radio that he could see people moving on the balcony. While still standing at apartment 99’s open front door, Noble saw on the balcony two African-American males, who matched the description of the robbers, and who were now in the process of standing up, which was an indication that the female had lied to the officers to protect the two young men because she knew they had committed the robbery.
Thus, a reasonable, if not compelled, inference was that the two young men on the balcony were the robbers, and, therefore, as a matter of law probable cause existed for their arrest.
Existence of Exigent Circumstances
Although the People argued the fresh pursuit theory at length in the juvenile court, inexplicably, they have not argued it on appeal. Nevertheless, we may consider it. “We do not suggest, of course, that the parties have a right under [Government Code] section 68081 to submit supplemental briefs or be granted a rehearing each time an appellate court relies upon authority or employs a mode of analysis that was not briefed by the parties. The parties need only have been given an opportunity to brief the issue decided by the court and the fact that a party does not address an issue, mode of analysis, or authority that is raised or fairly included within the issues raised does not implicate the protections of [Government Code] section 68081.” (People v. Alice (2007) 41 Cal.4th 668, 679.)
Hot pursuit of a fleeing felon, imminent destruction of evidence, prevention of a suspect’s escape, or risk of danger to police or other persons constitute exigent circumstances. (People v. Thompson, supra, 38 Cal.4th at p. 818; Conway v. Pasadena Humane Society, supra, 45 Cal.App.4th at p. 172.)
This case is essentially indistinguishable from the hot pursuit described in People v. Escudero (1979) 23 Cal.3d 800, at 12:40 a.m. There, Stephen Gage interrupted Escudero while the latter was burglarizing the Lane residence where Gage was a guest. Escudero fled and entered a maroon Pontiac and drove off. Gage followed in his own car, but eventually lost Escudero when the latter abandoned the Pontiac and fled on foot. Gage obtained the Pontiac’s registration card, telephoned the sheriff’s department and gave the dispatcher the information from that registration card along with a description of Escudero. (People v. Escudero, supra, 23 Cal.3d at pp. 804-805.)
At 12:53 a.m., deputies were dispatched to the Lane residence and arrived within five minutes. After hearing Gage’s description of the events, the deputies requested additional help to search the area. In the meantime, the dispatcher learned from the Department of Motor Vehicles that the Pontiac was registered to Escudero, whose address was at a ranch in an outlying area. (People v. Escudero, supra, 23 Cal.3d at p. 805.)
At 1:25 a.m., the dispatcher spoke with the owners of the ranch, Mr. and Mrs. Perham, who verified that Escudero lived in a house on the ranch, that he drove a maroon Pontiac which was presently parked there, and that Escudero matched the description given by Gage. (People v. Escudero, supra, 23 Cal.3d at p. 805.)
By 1:40 a.m. at the latest, six deputies arrived at the ranch upon which were the main residence occupied by the Perhams and a foreman’s house where defendant lived. After the deputies explained to the Perhams that they wanted to speak with Escudero regarding the Lane burglary, Mr. Perham promptly entered the foreman’s house, told Escudero the deputies want to speak with him and then told the deputies to go on in. The deputies entered and arrested Escudero. (People v. Escudero, supra, 23 Cal.3d at pp. 805-806.)
Escudero moved to suppress evidence obtained by the officers’ warrantless entry, and the People sought to justify the entry on grounds of consent and fresh pursuit. (People v. Escudero, supra, 23 Cal.3d at pp. 804, 808.) The court rejected the consent theory but found hot pursuit was applicable. (Ibid.) In so finding the court stated: “Throughout the events in question the police were pursuing a man whom they suspected of having broken into an occupied private home in the middle of the night to commit a burglary; this is a serious crime, with an ever-present potential for exploding into violent confrontation. The need to prevent the imminent escape of such an offender is clearly an exigent circumstance within the doctrine here invoked.” (People v. Escudero, supra, 23 Cal.3d at pp. 810-811, fn. omitted.)
The opinion does not specify the evidence sought to be suppressed.
We see no significant distinction between the facts of Escudero and those of the instant case. If anything, the instant facts present a stronger case for a finding of fresh pursuit and justification for warrantless entry than do those of Escudero. The robbery herein occurred between 6:20 and 6:30 p.m. and the deputies arrived at the door of apartment 99 no later than 7:00 p.m., i.e., a period 20 minutes shorter than the one-hour period involved in Escudero. During that 40-minute period, like the deputies in Escudero,the sheriff’s deputies herein continuously investigated the crime until they finally narrowed it to apartment 99, the likely location where the plan to rob Dick had originated. As previously noted, while the officers were at the door of apartment 99, facts developed which provided them with probable cause to arrest the minor and Chambers. Given that the longer period of investigation in Escudero constituted fresh pursuit, a fortiori, the lesser shorter period of investigation in the present case must likewise constitute fresh pursuit.
As to circumstances requiring immediate entry, the deputies in Escudero were justified in making warrantless entry because of the seriousness of the crime -- residential burglary -- and its potential for violence. Here, the offense was robbery -- an offense at least as serious as residential burglary and one in which violence actually occurred. Additionally, the minor’s and Chambers’ willingness to resort to the use of a bat to accomplish the crime increased the likelihood that, while the officers were waiting to get a warrant, the pair might obtain other deadly weapons from within the apartment to effect an escape. Thus, hot pursuit, coupled with the prevention of the escape of the perpetrators, established justification for the officers’ warrantless entry.
Since the undisputed evidence established both probable cause to arrest the minor and Chambers prior to the officers’ entry into apartment 99 as well as exigent circumstances justifying the officers’ warrantless entry, the pepper spray can, the pocket knife, and the empty Pizza Hut boxes were not illegally seized. Consequently, because the illegalities upon which the minor’s arguments rest are nonexistent, his claims are rejected.
II
The minor also argues that even if the in-field and in-court identifications of him are not excluded the evidence is still insufficient to support the robbery finding. Again, we disagree.
“‘The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness’s credibility for that of the fact finder. [Citations.]’” (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
Essentially, the minor’s argument is that Dick’s in-field and in-court identifications of him were “equivocal” because Dick testified, at various times, that he was 90 to 95 percent certain that the minor was one of the robbers. Even if such a high degree of certainty alone was insufficient to support the court’s finding, there was considerably more corroborating evidence. The minor and Chambers matched the general description of the robbers given by Dick to the officers at the scene of the robbery. Within 40 minutes of the robbery, the officers determined that the pizza had been ordered from apartment 99 rather than from apartment 110, a circumstance reasonably suggesting that the plan to rob Dick had originated in apartment 99. While standing outside the front door of apartment 99, the officers observed the minor and Chambers in the process of standing up on the balcony just after the officers heard over their radio that the officer at the back of the apartment saw two people moving on the balcony, a circumstance indicating that the two had been hiding on the balcony. That the two had been hiding was reinforced by the adult female’s having told the officers that no one else was present, an obvious lie meant to conceal the whereabouts of the robbers. Consequently, Dick’s in-field and in-court identifications of the minor coupled with the above corroborating evidence overwhelmingly establish substantial evidence supporting the juvenile court’s sustaining of the robbery charge.
III
Challenged Probationary Conditions
Among the conditions of probation imposed by the court were Nos. 2, 6, and 11(l), prohibiting, respectively, the minor from possessing dangerous or deadly weapons or being in the presence of persons or in locations where such persons are located; associating with known gang members, wearing gang paraphernalia or going into gang territory; and associating with known drug users or sellers or be in places where such substances are present.
Specifically: “2. Not own or have any dangerous or deadly weapons in his possession or remain in any building or vehicle where any person unlawfully has such a weapon, or remain in the presence of any unlawfully armed person.”
Specifically: “6. Shall not associate with persons who the minor knows or reasonably should know to be involved in gang activities, wear clothing or display items or emblems reasonably known to be associated with or symbolic of gang membership, and shall not enter any gang/drug area and/or territory specifically so designated for him/her by the Probation Officer, and shall verbally advise the Probation Officer of any nickname or ‘street moniker’ he currently uses.”
Specifically: “Not associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or be in places where such substances are present.”
The minor contends these conditions require striking or modification because they are constitutionally vague or overbroad. The People claim the minor’s failure to object in the trial court on the constitutional grounds he now asserts forfeits the issue for appellate review. In any event, the People continue, the conditions need no modification.
We reject the People’s forfeiture argument, and we conclude that while condition No. 6 needs no modification, condition Nos. 2 and 11(l) are unconstitutionally vague. Consequently, we shall modify the latter two conditions.
In In re Sheena K. (2007) 40 Cal.4th 875, decided after the briefs herein were filed, the California Supreme Court held that a probation condition prohibiting the probationer from associating with anyone who was a member of a specified class of persons, without a requirement that the probationer know the person was a member of that class, lacks adequate notice of the prohibited condition and, therefore, is unconstitutionally vague. (Id. at pp. 889-893.) The court further held that because such a condition presents a pure question of law, a probationer’s failure to object to the condition’s imposition does not forfeit the issue for appeal (id. at pp. 880-889), and that an acceptable remedy when such condition is challenged on appeal is for the appellate court to insert the knowledge requirement. (Id. at p. 892.)
As to condition No. 6, relying on People v. Lopez (1998) 66 Cal.App.4th 615, the minor argues the term “gang” is vague because it has innocuous, not just criminal, meanings. Lopez considered a probation condition similar to No. 6 and concluded the term “gang” was vague because, as shown by Webster’s New Third International Dictionary, in addition to definitions with “sinister implications” the term also has “benign connotations,” including “(1): a group of persons working under the same direction or at the same task,” “(3): an elementary and close-knit social group of spontaneous origin,” and “(5): a group of congenial persons having close and informal social relations: a group of persons drawn together by a community of tastes . . . .” (People v. Lopez, supra, 66 Cal.App.4th at p. 631.) Consequently, Lopez modified the condition by adding to the condition, as the minor herein requests that we do, the definition of “criminal street gang” as set forth in Penal Code section 186.22, subdivisions (e) and (f). (Id. at p. 638.)
However, in In re Justin S. (2001) 93 Cal.App.4th 811, the court suggested the modification required by Lopez was unnecessary because “[t]he definition [of gang] is in any event, fairly implied in the condition.” (Id. at p. 816, fn. 3.)
We agree with Justin S.’s practical approach to the question. “An otherwise proper probation condition need only articulate a standard of conduct of sufficient precision to inform the defendant of what is required of him or her and to allow the court to determine whether a violation has occurred. [Citation.]” (People v. Lopez, supra, 66 Cal.App.4th at p. 629.)
Here, the context within which the word “gang” was used was following the minor’s having committed a robbery, he had admitted being a member of the “29th Street Crip” gang, and he had a gang tattoo on his arm. In these circumstances, we believe the minor is well aware that the term “gang” refers to groups who engage in criminal conduct or have a criminal intent and is not a prohibition on his association with “a group of congenial persons having close and informal social relations.” Hence, as used herein, the term “gang” is neither vague nor overbroad and, therefore, does not need modification.
As to condition No. 2, the prohibition against remaining in the presence of, or places where, persons are unlawfully armed, the minor argues the failure of the condition to require that he have knowledge of the prohibited condition renders it vague. Similarly, he argues that condition No. 11(l), prohibiting his association with drug users or remaining in locations where drugs are being sold or used, is constitutionally vague because it fails to include a knowledge requirement. We agree.
In Sheena K., supra, the condition at issue was that Sheena “not associate with anyone disapproved of by probation.” (In re Sheena K., supra, 40 Cal.4th. at p. 878.) The court found this condition constitutionally vague because it failed to include a requirement that she have knowledge of the probation officer’s disapproval. (Id. at pp. 878-879.) For purposes of constitutional analysis, we see no logical distinction between the Sheena K. condition and conditions No. 2 and 11(l). Accordingly, we shall make the appropriate modifications.
DISPOSITION
Probationary condition No. 2 is modified to read: “Not own or have any dangerous or deadly weapons in his possession or knowingly remain in any building or vehicle where any person unlawfully has such a weapon, or knowingly remain in the presence of any unlawfully armed person.” Condition No. 11(l) is modified to read: “Not associate with persons who you know or whom the Probation Officer informs you are users or sellers of illegal drugs, including marijuana, or knowingly be in places where such substances are present.” In all other respects, the judgment is affirmed.
We concur: DAVIS , J., BUTZ , J.