Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. PJ37368, Robert Totten, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed with directions.
Patricia Winters, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MALLANO, Acting P. J.
Oscar A. appeals from the order of wardship entered following his admissions on separate juvenile petitions that he possessed marijuana for the purpose of sale and was a minor in possession of a firearm. He contends that his motion to suppress evidence of the firearm was erroneously denied and that three of the conditions of his probation were overbroad. We affirm the order of wardship and order the juvenile court to modify the conditions of probation.
FACTS
At the hearing on the minor’s motion to suppress, Los Angeles Police Officer Nelson Jatico testified that on April 15, 2006, he was on a gang enforcement detail with a fellow police officer and a probation officer in a marked patrol car in the San Fernando Gardens housing project. The project is surrounded by a 10-foot high fence and the entrances are marked with “no trespassing” signs. Residents had made numerous complaints about trespassers and gang activity within the project.
While the officers drove between two parking structures around 4:50 p.m., Jatico observed four males walking in the same direction of the patrol car, ahead of it. The officers pulled alongside the males and stopped. From his position in the passenger seat about five feet away, Jatico asked the males, “‘Hey, what’s up?’” Following that, Jatico and the other officers got out of the patrol car in order to find out where the males lived. Three of the males had turned around in response to Jatico’s question and were facing the officers. The fourth, the minor, “continued to keep his back towards [the officers] looking over his shoulder at [the officers] only.” Jatico began walking toward the minor, whereupon the minor said, “‘Sir, I have something.’” Jatico asked what he had, and the minor responded that it was a gun, which was in his front waistband. At that point, the officers drew their weapons. Jatico handcuffed the minor and recovered a semiautomatic gun from the minor’s waistband.
Jatico acknowledged that the police report regarding the incident, which was written by his partner who was the driver of the patrol car, states: “‘I parked the vehicle next to the group and detained all four pending a trespassing investigation.’” Jatico testified that “after reading [the report] today, I think detained was not the word to be used.”
The court ruled in pertinent part: “[T]he case law is clear, consensual search the fact they’re in uniform and the fact of a police car does not warrant to turn that into detention. . . . It was upon [Officer Jatico’s] antenna being raised as good police officer when the young man, his behaviors that caused him concern, that he was then walking to continue his conversation. I see nothing that overcame the will of this young man. I see nothing that at least in the appellate decisions would cause this court to believe this was a detention. So the court denies the motion [to suppress].”
DISCUSSION
1. Suppression Motion
Defendant contends that the juvenile court erred in ruling that his encounter with the police was consensual and rejecting his argument that seizure of the gun was the fruit of an illegal detention. We disagree.
“The United States Supreme Court has made it clear that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur. [Citations.] ‘[I]n order to 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.’ [Citation.] This test assesses the coercive effect of police conduct as a whole, rather than emphasizing particular details of that conduct in isolation. [Citation.] 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. [Citations.] The 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. [Citation.]
“. . . In assessing the validity of the [trial court’s] determination [of this issue], we are guided by familiar rules of appellate review. When reviewing a judgment, an appellate court ‘must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] “[T]he court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” [Citation.] We “‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’” [Citation.]’ [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 821–822.)
The minor starts his argument citing authority to support his position that he was not validly detained. But there is no controversy on that issue. The prosecutor below argued, and the juvenile court ruled, that no detention had occurred because this was a consensual encounter. We find nothing in the record to undermine the juvenile court’s conclusion.
The relevant test, stated above, focuses on whether officers utilized physical force or a show of authority that would reasonably be interpreted as a restraint on the minor’s liberty. The use of the word “detained” in the written report is part of the uncommunicated state of mind of one of the officers and is irrelevant. (In re Manuel G., supra, 16 Cal.4th at p. 821.) The officers here simply stopped to talk to four young males inside the gates of a housing project that had trespassing problems. After stopping, one of the officers walked toward the minor when, unlike the his three companions, the minor continued to keep his back to the officers, looking over his shoulder at them. Guns were drawn, and authority was shown, only after the minor announced he was armed. Accordingly, the trial court’s conclusion that a consensual encounter occurred is amply supported by the evidence, and the minor’s motion to suppress was properly denied.
2. Conditions of Probation
At the adjudication hearing, camp community placement was ordered. Among conditions of probation imposed were Nos. 15, 16 and 21, which respectively provided in pertinent part that the minor not associate with anyone disapproved of by his parents, not remain in the presence of an unlawfully armed person, and stay away from places where narcotics users congregate.
Defendant contends that conditions of probation Nos. 15, 16, and 21 are overbroad and vague because they do not contain a requirement of knowledge. In In re Sheena K. (2007) 40 Cal.4th 875, 890, the Supreme Court agreed that this requirement exists, citing the rule that “[a] probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person’s constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad. [Citation.]” The court further held that issues of vagueness and overbreadth are not forfeited where, as here, the issues are being raised for the first time on appeal. (Id. at p. 879.)
Based on Sheena K., the Attorney General aptly concedes defendant’s contentions and that the relevant conditions of probation should be revised. We shall so order.
DISPOSITION
The order of wardship is affirmed. The juvenile court is ordered to modify the conditions of probation to provide in No. 15 that the minor not associate with anyone he knows to be disapproved of by his parents, in No. 16 that the minor not remain in the presence anyone he knows to be an unlawfully armed person, and in No. 21 that the minor stay away from places where he knows narcotics users congregate.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.