Opinion
NOT TO BE PUBLISHED
Santa Cruz County Super. Ct. No. JU21500
Premo, J.
In the court below, appellant N.C. (minor) unsuccessfully moved to suppress evidence. He thereafter admitted that he had committed misdemeanor possession of Ecstasy. The juvenile court placed minor on six months probation without wardship and with conditions. On appeal, minor challenges the ruling on his suppression motion. He contends that the evidence implicating him was the product of an unlawful detention. He also challenges the imposition of certain probation conditions and urges that two conditions should be modified. The People concede that two conditions should be modified. We agree that the concession is appropriate. We otherwise disagree with minor. We therefore modify and affirm the probation order.
SCOPE OF REVIEW
“ ‘ “An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review.” ’ ” (People v. Ayala (2000) 23 Cal.4th 225, 255.)
BACKGROUND
The parties developed undisputed historical facts at the suppression hearing through the testimony of Santa Cruz Police Officer Bill Azua.
Officer Azua had 15 years experience working narcotics cases. He was assigned to patrol city parking lots because of an increase in automobile burglaries and drug activity. While patrolling the uncovered third level of a triple-decker garage on Front Street, he saw several empty parked cars parked on the outer rim of the lot. He also saw a Toyota 4Runner with two people inside parked in the middle of the lot. Minor was sitting in the passenger seat with his head down. The other person was sitting in the driver’s seat with his head down. In Officer Azua’s experience, people sitting in cars in parking lots are typically either burglarizing a car or using narcotics; and people using narcotics in cars typically look down. Officer Azua therefore drove his car toward the 4Runner. At some point, he saw minor and the driver express surprise, exit the 4Runner, and walk away. The two left the car windows open even though it was heavily raining. And they did not lock the car when they exited. Officer Azua exited his patrol vehicle about 20 feet from the 4Runner and told the two “to stop” and said “I need to talk to you guys.” The two stopped. Officer Azua approached and smelled burnt marijuana on the driver. He observed that minor had glassy, watery eyes, which is consistent with having smoked marijuana. At some point, Officer Gallegos arrived to assist Officer Azua. Officer Azua asked the driver if they had been smoking marijuana, and the driver affirmed that he had. He asked the driver if he could search him. The driver consented. Officer Azua did not find anything illegal on him. He then asked minor if he had any more marijuana on him. Minor affirmed that he did and produced a small amount of marijuana from his pocket. Officer Azua then began a pat search of minor and felt a container in a pocket. He asked minor whether he would hold out the container. Minor reached in his pocket and pulled out a container. Inside the container were eight Ziploc baggies of Ecstasy.
Officer Azua later added: “I told them to stop. But did I yell at them? No. Did I scream at them? No.”
The juvenile court found as follows: “The Court finds that, taken together--the location of the minor and this driver, his actions upon noticing the officer, the conditions and inconsistency with the windows, the leaving of the vehicle with the windows down and unlocked, and then the production of the contraband--all justifies the detention.”
DISCUSSION
Minor argues that he was detained at the moment Officer Azua accosted him and said, “I need to talk to you guys.” He urges that he “could not have reasonably believed that he was free to leave at that point, because of the officers’ commanding presence within close proximity.” He then argues that the detention was unlawful because Officer Azua did not have specific articulable facts giving rise to a reasonable suspicion that criminal activity was afoot.
Minor bolsters this point by claiming that Officer Azua placed him “in the custody of Officer Gallegos while he questioned the driver.... This further re-enforces the argument that [minor] was detained and not free to leave.” But minor misstates the record. Officer Azua’s cross-examination testimony on the subject emanates from the following colloquy:
Whether “there was a detention” is a pure question of law subject to independent review. (See, e.g., People v. Nickleberry (1990) 221 Cal.App.3d 63, 68.) “[When, as here, ] the evidence is uncontradicted, we must independently determine whether the facts support the court’s conclusion. [Citation.] Under Proposition 8 we apply federal constitutional law, but utilize state law where it does not conflict with federal law.” (People v. Verin (1990) 220 Cal.App.3d 551, 555.)
We respectfully disagree with the trial court’s characterization of the undisputed facts as a detention. Rather we agree with the People that the encounter was consensual. We therefore decline to examine whether reasonable suspicion justified a detention. (People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19 [it is a “ ‘settled principle of appellate review that a correct decision of the trial court must be affirmed on appeal even if it is based on erroneous reasoning’ ”].)
“For purposes of Fourth Amendment analysis, there are basically three different categories or levels of police ‘contacts’ or ‘interactions’ with individuals, ranging from the least to the most intrusive. First, there are what Justice White termed ‘consensual encounters’ [citation], which are those police-individual interactions which result in no restraint of an individual’s liberty whatsoever--i.e., no ‘seizure, ’ however minimal--and which may properly be initiated by police officers even if they lack any ‘objective justification.’ [Citation.] Second, there are what are commonly termed ‘detentions, ’ seizures of an individual which are strictly limited in duration, scope and purpose, and which may be undertaken by the police ‘if there is an articulable suspicion that a person has committed or is about to commit a crime.’ [Citation.] Third, and finally, there are those seizures of an individual which exceed the permissible limits of a detention, seizures which include formal arrests and restraints on an individual’s liberty which are comparable to an arrest, and which are constitutionally permissible only if the police have probable cause to arrest the individual for a crime.” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784.)
Thus, not every encounter between a law enforcement officer and a citizen constitutes a detention for Fourth Amendment purposes. “[S]eizure does not occur simply because a police officer approaches an individual and asks a few questions.” (Florida v. Bostick (1991) 501 U.S. 429, 434.) Rather, “a person is ‘seized’ only when, by means of physical force or a show of authority, his freedom of movement is restrained.” (United States v. Mendenhall (1980) 446 U.S. 544, 553.) “[T]o determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” (Florida v. Bostick, supra, at p. 439; accord, People v. Valenzuela (1994) 28 Cal.App.4th 817, 823.) “The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation. Moreover, what constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” (Michigan v. Chesternut (1988) 486 U.S. 567, 573 (Chesternut).)
“Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer’s display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer’s request might be compelled.” (In re Manuel G. (1997) 16 Cal.4th 805, 821; see also In re Christopher B. (1990) 219 Cal.App.3d 455, 460.) All of the circumstances involved in the encounter must be evaluated to decide whether a reasonable person would have concluded from the police conduct that he or she was not free to leave or decline the requests of the police. (Florida v. Bostick, supra, 501 U.S. at p. 439.) And “[t]he officer’s uncommunicated state of mind and the individual citizen’s subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.” (In re Manuel G., supra, at p. 821.)
Here, there is no suggestion in the record that Officer Azua coerced minor to submit to questioning “by means of physical force or a show of authority.” (United States v. Mendenhall, supra, 446 U.S. at p. 553.) Officer Azua approached minor in a public place after minor had exited his car. He asked to speak with minor. Minor agreed to speak. This scenario shows a consensual encounter that does not implicate Fourth Amendment principles.
Minor disagrees. He argues that a reasonable person would not feel free to leave “after the imperative language used by Azua.” He relies on People v. Roth (1990) 219 Cal.App.3d 211, in support of his position. Defendant’s reliance is erroneous.
In Roth, the trial court ruled that a detention had occurred when a police officer shined a spotlight on the defendant, stopped his patrol vehicle, got out of the vehicle along with a second officer, and “commanded” the defendant to approach and speak with him. Significantly, the trial court expressly found that the officer had “commanded” the defendant to approach him. (People v. Roth, supra, 219 Cal.App.3d at p. 215, fn. 3.)
Here, by contrast, Officer Azua did not shine a spotlight on minor while making a command. Nor did the juvenile court make a finding that Officer Azua commanded minor to speak to him. Rather the juvenile court remarked that Officer Azua “call[ed] out to the minors.”
On this point, we find instructive People v. Franklin (1987) 192 Cal.App.3d 935 (Franklin), and Chesternut, supra, 486 U.S. 567. In Franklin, the court held that no detention had occurred where a police officer in his patrol car shone a spotlight on a suspect, drove the car directly behind the suspect, and stopped with the vehicle’s headlights illuminating the suspect. (Franklin, supra, at p. 940.) And in Chesternut, the defendant began to run when he observed an approaching patrol car, and the patrol car followed the defendant around a corner “ ‘to see where he was going, ’ ” caught up with him, and drove alongside him “for a short distance, ” during which time the defendant discarded a number of packets containing illegal drugs. (Chesternut, supra, at p. 569.) The Supreme Court held that the defendant had not been detained: “While the very presence of a police car driving parallel to a running pedestrian could be somewhat intimidating, this kind of police presence does not, standing alone, constitute a seizure.” (Id. at p. 575.)
Here, Officer Azua’s conduct in driving a patrol car in minor’s direction and calling out may have been, like the officer’s conduct in Chesternut, “somewhat intimidating, ” but it was less coercive than the officer’s conduct in Franklin. As in Franklin and Chesternut, Officer Azua’s conduct did not constitute a detention.
In short, the evidence in this case is undisputed that Officer Azua’s demeanor at the time of the encounter was not of the demanding or threatening variety. Officer Azua’s questions were just that, questions rather than commands. Officer Azua did not physically or orally restrain minor. And nothing he said or did indicated that he wanted to do anything more than talk to minor. Thus, the evidence does not demonstrate a show of authority other than what is implicit when a uniformed police officer exits a patrol car to engage a citizen. It therefore fails to support that Officer Azua coerced minor to submit to questioning by means of physical force or a show of authority such that a reasonable person in minor’s situation would not have felt free to leave.
PROBATION CONDITIONS
Minor contends all probation conditions must be pronounced in open court. He then concludes that certain conditions in this case that are in the written order only are invalid. He relies on several cases that involve discrepancies between the orally pronounced judgment and the written record.
But the discrepancy cited in this case cited by minor is not a discrepancy regarding the court’s judgment. It is a discrepancy regarding the court’s probation order. A probation order is not a part of the judgment that creates vested rights in the defendant; the trial court retains the authority to revoke, modify, or change the probation order. (People v. Labarbera (1949) 89 Cal.App.2d 639, 643; People v. Thrash (1978) 80 Cal.App.3d 898, 901 (Thrash).) Consequently, the rule that the oral pronouncement of a judgment prevails over the written record does not apply to the imposition of an order of probation.
Probation conditions need not be orally pronounced, and probation conditions later imposed by written order are valid, so long as the defendant was or became aware of them. (In re Frankie J. (1988) 198 Cal.App.3d 1149, 1154-1155; Thrash, supra, 80 Cal.App.3d at p. 901.)
In both Frankie J. and Thrash, the trial courts included probation conditions in signed written orders but did not orally pronounce the conditions. Here, too, the juvenile court included the challenged probation conditions in a signed written order but did not orally pronounce them. And minor makes no claim that he was unaware of the challenged probation conditions. Additionally, all the written conditions presumably stemmed from the probation officer’s recommendation of which minor was aware via his counsel. At disposition, the juvenile court announced that “Probation has a recommendation, ” and asked minor’s counsel “Any input on the recommendation?” To this, minor’s counsel replied, “No, it looks appropriate.”
Thus, the juvenile court validly imposed the challenged probation conditions despite not orally pronouncing them.
Minor challenges the following two probation conditions as unconstitutionally vague and overbroad because they do not contain a knowledge requirement.
The juvenile court orally imposed the following: “You are not to use or be in possession of anything that gets you high or drunk, any kind of drug including alcohol. You can’t have it around, you can’t use it.” The written order states: “Do not use, possess or be under the influence of alcohol/controlled substances or associated paraphernalia.” Minor’s point is that he could violate the condition even if unaware of the presence or illegal nature of a substance.
And the juvenile court orally imposed the following: “Stay away from Franky and I have that as F-R-A-N-K-Y, Lee, L-E-E, Campbell.” The written order states: “Stay away from Franky Lee Campbell....” Minor’s point is that he could violate the condition by encountering Campbell by happenstance.
The obvious jurisprudential trend is toward requiring that a term or condition of probation explicitly require knowledge on the part of the probationer that he is in violation of the term in order for it to withstand a challenge for unconstitutional vagueness. “[P]robation conditions that implicate constitutional rights must be narrowly drawn” and the knowledge requirement in these circumstances “should not be left to implication.” (People v. Garcia (1993) 19 Cal.App.4th 97, 102.)
The People concede that modifications to include a knowledge requirement would cure the infirmity in the challenged conditions. They object, however, to minor’s proposed stay-away order that states: “That the minor not knowingly be within 20 feet of Franky Lee Campbell.” They point out that “it was clear that the juvenile court did not want [minor] anywhere near Franky--his companion in committing this offense.”
We agree that a 20 feet distance from someone is inconsistent with the concept of staying away from someone. One hundred yards is more consistent with the juvenile court’s intent. (Cf. People v. Ponce (2009) 173 Cal.App.4th 378, 381 [100 yards]; People v. Johnson (1993) 20 Cal.App.4th 106, 108 [500 yards].)
DISPOSITION
The drug/alcohol condition of probation is modified as follows: “Do not knowingly use, possess or be under the influence of alcohol or illegal controlled substances or associated paraphernalia.” The stay-away condition of probation is modified as follows: “That the minor not knowingly be within 100 yards of Franky Lee Campbell.” As so modified, the order for probation is affirmed.
WE CONCUR: Rushing, P.J., Elia, J.
“Q. Okay. It was Officer Gallegos that at this point had this minor in custody while you were dealing with the second--the driver of the car?
“A. No.
“Q. That’s not right?
“A. That’s not how it--the events occurred.
“Q. Okay.
“A. He was not--the defendant was not in custody until after the driver was checked for illegal contraband. And then I had asked the defendant if he had any marijuana, and he produced marijuana to me.”