Opinion
G044231
12-16-2011
In re ADRIAN A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ADRIAN A., Defendant and Appellant.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DL036605)
OPINION
Appeal from an order and judgment of the Superior Court of Orange County, Ronald P. Kreber and Gregory W. Jones, Judge. Affirmed.
Sarah A. Stockwell, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Adrian A. appeals from a judgment entered after the denial of his motion to suppress and a contested jurisdictional hearing. The juvenile court found true the allegation he possessed a deadly weapon (Pen. Code, § 12020, subd. (a)(1)), declared him a ward of the court, and placed him on probation.
The petition described the deadly weapon as a "metal pole." Adrian argues the pole was seized in violation of his rights under the Fourth, Fifth, and Fourteenth amendments to the federal Constitution. He also challenges the sufficiency of the evidence to prove the pole is a deadly weapon as defined by statute. Adrian further contends the court erroneously stated a maximum term of confinement, which should be stricken, and imposed an overbroad term of probation that improperly limits his associations to persons approved of by his probation officer. We reject these contentions and affirm the judgment.
I
FACTS
Around 11:45 p.m. on November 8, 2009, Orange County Deputy Sheriff Isaac Flores and his field training officer Deputy John Borrego, were patrolling a neighborhood in Stanton known for gang activity when they noticed three young men on bicycles. Two of the young men were on one bicycle. The third, Adrian, was riding a second bicycle. All three were wearing baggy clothing. Flores saw that one of the bicycles did not have a front headlamp, which is a violation of Vehicle Code section 21201, subdivision (d)(1). He decided to make a traffic stop and activated his emergency lights. Adrian and his two companions complied with Flores' request to stop.
Vehicle Code section 21201, subdivision (d)(1) provides, "A bicycle operated during darkness upon a highway, a sidewalk where bicycle operation is not prohibited by the local jurisdiction, or a bikeway, as defined in Section 890.4 of the Streets and Highways Code, shall be equipped with all of the following: [¶] (1) A lamp emitting a white light that, while the bicycle is in motion, illuminates the highway, sidewalk, or bikeway in front of the bicyclist and is visible from a distance of 300 feet in front and from the sides of the bicycle."
Flores got out of his patrol car and approached Adrian. Because he and Borrego were outnumbered in an area known for gang activity, it was late at night, and the three young men were wearing baggy clothing, Flores decided to pat down each for weapons. During his patdown of Adrian, he felt a hard, cylindrical object tucked between Adrian's belt and his pants pocket, and concealed by his baggy shirt. Flores removed the item, which turned out to be a chrome pole approximately 16 inches long, with a diameter of approximately one inch. It weighed about a pound. Flores thought it looked like a bicycle seat post.
Flores asked Adrian why he had the pole in his pocket. Adrian said, "Oh, it is because of all the haters around here." Flores asked Adrian if he used the metal pole for protection and Adrian replied, "Well, yeah. I just have it though." Flores arrested Adrian, handcuffed him, put him in the back of his patrol car, and read the standard Miranda advisement. He asked Adrian what he used the pole for and Adrian responded that he had had found the pole down the street and put it in his pocket. Flores asked Adrian if he remembered saying he carried the pole for protection. Adrian said he remembered saying that, but he denied ever actually using the pole as a weapon.
Miranda v. Arizona (1966) 384 U.S. 436.
II
DISCUSSION
Motion to Suppress
Adrian filed a pretrial motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1. He sought to suppress evidence seized as a result of the patdown search, his pre-Miranda statements, and Flores' observations. At the hearing, Flores testified to the facts described above. He said he was concerned their baggy clothing could conceal weapons, and the area was known for frequent gang activity. He decided to pat down the individuals for officer safety. When he felt the pole in Adrian's waistband, he thought it was gun barrel and removed the item. It turned out to be a bicycle seat metal pole.
The juvenile court found the initial detention lawful as incident to a traffic stop. Furthermore, the court found the totality of the circumstances justified Flores' protective patdown search and denied Adrian's motion to suppress. On appeal from the denial of a motion to suppress, we defer to the trial court's express or implied factual findings if supported by substantial evidence, but independently review the court's application of the law to those facts. (People v. Jenkins (2000) 22 Cal.4th 900, 969-973.)
"In the context of an ordinary traffic stop, an officer may not pat down a driver . . . absent a reasonable suspicion [the driver] . . . may be armed and dangerous. [Citation.]" (People v. Collier (2008) 166 Cal.App.4th 1374, 1377 (Collier); see also In re H.H. (2009) 174 Cal.App.4th 653, 657.) However, the officer need not be absolutely certain the defendant is armed. The question is whether a reasonably prudent person would be warranted in the belief his or her safety was in danger considering all the surrounding facts and circumstances. (People v. Avila (1997) 58 Cal.App.4th 1069, 1074.)
Flores testified he conducted a patdown search for officer safety because Adrian and his two companions were in a known gang area, it was late at night and dark, all three individuals wore baggy clothing that could easily conceal a weapon, and he and Deputy Borrego were outnumbered by their detainees. Under the circumstances, it was prudent for Flores to first determine if any one of the three young men carried a concealed weapon before issuing a citation.
Adrian relies on People v. Medina (2003) 110 Cal.App.4th 171, 174, to argue the fact the stop occurred in a high crime area at night is not sufficient to warrant a patdown search. He also cites several cases regarding baggy or heavy clothing, and cases discussing situations where officers were outnumbered. While it is true none of the factors Flores relied on would have provided grounds for a patdown search, if we considered them individually, we do not simply assess individual circumstances for sufficiency. Rather, we review the totality of the circumstances to determine if the officer's conduct was objectively reasonable.
Here, we agree with the juvenile court's determination. For the reasons outlined above, we conclude these facts created an objectively reasonable basis for Flores to conduct a patdown search to preserve his own and Borrego's safety. (See Collier, supra, 166 Cal.App.4th at pp. 1377-1378, fn. 1.)
Sufficiency of the Evidence
Adrian moved to dismiss the petition pursuant to Welfare and Institutions Code section 701.1 at the close of the prosecution's case. He argued the prosecution failed to prove beyond a reasonable doubt that the metal pole fit the statutory definition of a deadly weapon.
The standard applied by the trial court in ruling on a motion for judgment of acquittal is the same standard applied by an appellate court in reviewing the sufficiency of the evidence. (People v. Stevens (2007) 41 Cal.4th 182, 200.) "'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.]' [Citation.]" (People v. Perez (2010) 50 Cal.4th 222, 229.)
In essence, Adrian claims a bicycle seat metal pole is not a deadly weapon as defined by Penal Code section 12020. Section 12020, subdivision (a)(1) prohibits, in pertinent part, the possession of "any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap or sandbag." By enacting this statute, the Legislature "sought to outlaw the classic instruments of violence and their homemade equivalents; the Legislature sought likewise to outlaw possession of the sometimes-useful object when the attendant circumstances, including the time, place, destination of the possessor, the alteration of the object from standard form, and other relevant facts indicated that the possessor would use the object for a dangerous, not harmless purpose." (People v. Grubb (1965) 63 Cal.2d 614, 620-621, fn. omitted (Grubb).) Consequently, section 12020 subdivision (a)(1) "embraces instruments other than those specially created or manufactured for criminal purposes; it specifically includes those objects 'of the kind commonly known as a billy.'" (Grubb, 63 Cal.2d at p. 621, superseded by statute on another point in People v. Rubacalva (2000) 23 Cal.4th 322, 330.)
Penal Code section 12020 provides, in pertinent part, "Any person in this state who does any of the following is punishable by imprisonment in a county jail not exceeding one year or in the state prison: [¶] (1) Manufactures or causes to be manufactured, imports into the state, keeps for sale, or offers or exposes for sale, or who gives, lends, or possesses any cane gun or wallet gun, any undetectable firearm, any firearm which is not immediately recognizable as a firearm, any camouflaging firearm container, any ammunition which contains or consists of any fléchette dart, any bullet containing or carrying an explosive agent, any ballistic knife, any multiburst trigger activator, any nunchaku, any short-barreled shotgun, any short-barreled rifle, any metal knuckles, any belt buckle knife, any leaded cane, any zip gun, any shuriken, any unconventional pistol, any lipstick case knife, any cane sword, any shobi-zue, any air gauge knife, any writing pen knife, any metal military practice handgrenade or metal replica handgrenade, or any instrument or weapon of the kind commonly known as a blackjack, slungshot, billy, sandclub, sap, or sandbag.
To establish the elements of the offense, the prosecution must prove the defendant possessed an object, which could have ordinary innocent uses, as a weapon, knowing it could be so used and willing to so use it should an occasion arise. (In re David V. (2010) 48 Cal.4th 23, 25-26.) Once the prosecution proves these elements, the burden shifts to "the defendant to show that possession of the weapon was for an innocent purpose. [Citation.]" (People v. King (2006) 38 Cal.4th 617, 624.)
Adrian contends a bicycle seat metal pole has none of the characteristics of a deadly weapon, and he asserts his statements concerning why he possessed the metal pole add nothing to the equation. However, whether the particular item meets the definition of a deadly weapon is a question of fact for the court to decide in light of all the surrounding circumstances. Here, Adrian knowingly possessed a bicycle seat metal pole as he and his companions rode through gang territory late at night. He told Flores he possessed the item because of "all the haters," and he admitted possessing it for self-defense, although he denied ever having used it for that purpose. But more importantly, Adrian did not claim he possessed the bicycle seat metal pole for some innocent reason. He simply told Flores he found the item and decided to keep it. Under the circumstances, we conclude sufficient evidence supports the judgment, and the trial court properly denied Adrian's motion to dismiss the petition.
Juvenile Court's Determination of the Maximum Term of Commitment
Adrian contends the juvenile court erred by setting a maximum term of confinement because he was not removed from the custody of his parents. Relying on In re Matthew A. (2008) 165 Cal.App.4th 537, Adrian argues we must strike the court's stated maximum term of confinement. The Attorney General contends the statement of the maximum time Adrian could be confined need not be stricken because it had no legal effect and therefore caused no prejudice. We agree with the Attorney General.
Under Welfare and Institutions Code section 726, subdivision (c), the juvenile court must specify the maximum term of confinement that could be imposed on an adult convicted of the same offense"[w]hen a minor is removed from the physical custody of his parent or custodian as a result of criminal violations sustained under Welfare and Institutions Code section 602 . . . ." (In re Matthew A., supra, 165 Cal.App.4th at p. 541.) In Matthew A., the minor was placed at home on probation, but the court nonetheless set a maximum term of confinement during the dispositional hearing. (Id. at p. 541.) The appellate court noted the juvenile court's error and ordered the maximum confinement term set by the juvenile court be stricken because "criticism of this practice in prior opinions without actually ordering a correction of the disposition seems to have had little effect." (Id. at pp. 541-542.)
However, in In re Ali A. (2006) 139 Cal.App.4th 569, 572-574, the minor was declared a ward of the court, granted probation, and placed in the custody of his parents. At the beginning of the dispositional hearing, the juvenile court stated the maximum term of confinement was three years. (Id. at p. 572.) The Court of Appeal concluded the juvenile court had no authority to set a maximum term of confinement in its dispositional order because the minor remained in his parent's physical custody. Thus, the maximum term of confinement contained in the dispositional order was "of no legal effect." (Id. at pp. 573-574.) Consequently, the court found, the minor had suffered no prejudice from the court's pronouncement and there was no reason to strike the ineffectual order or remand to correct the error. (Id. at p. 574.)
Here, at the conclusion of the jurisdictional hearing, the juvenile court sustained the petition, found Adrian to be a minor under Welfare and Institutions Code section 602, and designated the offense to be a misdemeanor "with [a] maximum term of confinement as 1 year." At a later dispositional hearing, the juvenile court declared Adrian a ward of the court, continued him in the custody of his parents, and granted probation. The court did not incorporate its earlier maximum term of confinement language in the dispositional order or any other subsequent order. Thus, under the circumstances presented here, we find no legal or corrective reason to strike the court's statement of a maximum confinement time.
Terms of Probation
As a term of probation, the court ordered Adrian to "not to associate with anyone who is specifically disapproved of by a parent or probation officer. You are not to associate with anyone who you know is on probation or parole or anyone that you know is in a criminal street gang or tagging crew." On appeal, Adrian argues the probation condition forbidding him from associating with anyone disapproved by his probation officer is unconstitutionally overbroad and impermissibly infringes on his right to freedom of association. We disagree.
The court's minute order reads, "Minor not to associate with anyone who you know is disapproved by the court, your parent/guardian, or probation officer, or anyone who you know is on probation or parole, or a criminal street or tagging crew or using /selling/possessing, or under the influence of alcohol or controlled substances."
The parties agree the issue was not waived by Adrian's failure to object at the dispositional hearing.
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Adrian relies on People v. O'Neil (2008) 165 Cal.App.4th 1351 (O'Neil), but his reliance is misplaced. In the first place, Adrian ignores the O'Neil court's express limitation to conditions of adult probation. As that court stated, "[c]onditions of juvenile probation may confer broader authority on the juvenile probation officer than is true in the case of adults [citations]." (O'Neil, supra, at p. 1358, fn. 4.) Furthermore, as noted in In re Frank V. (1991) 233 Cal.App.3d 1232, a probation condition that prohibits a juvenile from associating with anyone disapproved of by his or her probation officer, parents, or the court is "consistent with the rehabilitative purpose of probation and constitutional parental authority." (Id. at p. 1243.) The juvenile court cannot "reasonably be expected to define with precision all classes of persons which might influence [the juvenile] to commit further bad acts. It may instead rely on the discretion of [the juvenile's] parents, and the probation department acting as a parent, to promote and nurture [his or her] rehabilitation." (Ibid.) Here, the court simply limited Adrian's association with persons known by him to be disapproved by his probation officer, the court, or his parents, or anyone in a tagging crew or involved with drugs or alcohol. The knowledge requirement dispenses with Adrian's argument this particular probation condition is overbroad or otherwise constitutionally infirm. (See In re Ramon M. (2009) 178 Cal.App.4th 665, 677.) Accordingly, we reject his argument that this particular probation condition is overbroad or an unconstitutional limitation on his freedom of association.
III.
DISPOSITION
The judgment and order are affirmed. WE CONCUR: RYLAARSDAM, ACTING P. J. IKOLA, J. BEDSWORTH, J.