Opinion
G061345
07-13-2023
In re BRAYAN C., a Person Coming Under the Juvenile Court Law. v. BRAYAN C., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
R. Chris Lim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 22DL0299, Antony Ufland, Judge. Affirmed in part and remanded with directions.
R. Chris Lim, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Nora S. Weyl, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
BEDSWORTH, J.
After the juvenile court denied his motion to suppress, appellant admitted possessing a firearm as a minor and was committed to juvenile hall for 270 days as a ward of the court. On appeal, he contends the firearm he possessed was seized from him in violation of the Fourth Amendment, and the trial court failed to declare whether his offense was a misdemeanor or a felony. He also seeks review of the records the trial court examined in connection with his Pitchess motion. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) As respondent concedes, appellant's second contention has merit. Therefore, we will remand the matter to permit the trial court to make the requisite declaration. In all other respects, we affirm.
The facts are derived from the evidence presented at the hearing on appellant's suppression motion.
On the night of March 28, 2022, Orange County Probation Department gang unit deputies Elias Guzman and Mariano Beltran were on routine patrol near the 1600 block of South Evergreen Street in Santa Ana. Based on their training and experience, the deputies knew that was a high crime area where gang activity is prevalent. They also knew there had been a shooting in the area "not too long" before that date.
It was roughly 8:15 p.m. on the 28th when the deputies drove their unmarked truck into an alley that lies between residential garages on South Evergreen and the back of a strip mall. They noticed two young men walking near the garages. One of the men, appellant, was wearing a gray hooded sweatshirt, and the other, Christopher M., was wearing a black hooded sweatshirt. Christopher was also wearing black gloves and a baseball hat with the letters "CR" on it. Guzman associated the hat with a Santa Ana street gang known as the Compadres. He suspected Christopher might be armed because, in his experience, it is common for gang members who are carrying guns to wear gloves.
The deputies were unable to get a good look at the men because, not only was it dark outside, they had their hoods pulled up, and they were wearing bandanas over their faces. They were also "bebopping," which Beltran described as walking in a nervous manner and looking all around as if their heads were on "a swivel." When the men saw the deputies' truck, one of them crouched down and appeared to throw something under a slightly open garage door. The other man stopped, hesitated momentarily, and then turned around and said something to the croucher.
The deputies gave conflicting testimony as to who the croucher was, with Beltran saying it was Christopher, and Guzman saying it was appellant.
At that point, the deputies turned a searchlight on the men, and they began walking toward the light. The deputies then stopped their vehicle, got out, and ordered the men to halt and show their hands. Both men complied; they did not make any sudden movements or try to run away.
While Guzman was contacting Christopher, Beltran told appellant to turn around and put his hands on his head, which he did. Beltran handcuffed appellant and told him he was being detained, not arrested. After appellant denied being on probation, Beltran asked if he had anything on him that he should know about. Appellant muttered something under his breath, prompting Beltran to ask him "what?" Looking down nervously, appellant replied, "Just get it." Beltran then patted down appellant and found a handgun tucked inside his sweatshirt.
As it turned out, appellant was on formal probation at the time of the encounter. However, because the deputies were not aware of his probation status, the prosecution did not attempt to justify the deputies' actions on that basis. Nevertheless, the trial court found there was reasonable suspicion for the deputies to detain appellant and pat him down for weapons. Therefore, it upheld the seizure of his gun as lawful and denied his motion to suppress the weapon.
DISCUSSION
Suppression Ruling
Appellant contends the trial court erred in denying his motion to suppress because, in his view, there was no evidence implicating him or Christopher in criminal activity or suggesting he was armed and dangerous when the deputies stopped and patted him down. He also contends the encounter had racial undertones that violate the spirit of California's antidiscrimination laws. Exercising independent review of the matter (In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236), we find appellant was lawfully detained and patted down. Therefore, the trial court properly denied his motion.
Consistent with the Fourth Amendment, a police officer may briefly detain a suspect for investigative purposes if he reasonably suspects "criminal activity may be afoot[.]" (Terry v. Ohio (1968) 392 U.S. 1, 30.) More precisely, the officer must have reasonable suspicion the person being detained has, is, or is about to engage in some activity relating to a crime. (In re Tony C. (1978) 21 Cal.3d 888, 893.) Beyond that, the officer may proceed to patdown or "frisk" the suspect if he has reasonable suspicion to believe he may be armed and dangerous. (Terry v. Ohio, supra, 392 U.S. at p. 24; Arizona v. Johnson (2009) 555 U.S. 323, 326-327.)
Reasonable suspicion is a "less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence[.]" (Illinois v. Wardlow (2000) 528 U.S. 119, 123.) Consequently, "'reasonable suspicion can flourish in the absence of a direct evidentiary link between the suspect and the suspected crime.' [Citation.]" (United States v. Arthur (2014) 764 F.3d 92, 97.) While there must be "some objective manifestation" that criminal activity is afoot (United States v. Cortez (1981) 449 U.S. 411, 417), officers are entitled to draw commonsense conclusions from the circumstances presented. (Id. at p. 418.) They may also rely "on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' [Citations.]" (United States v. Arvizu (2002) 534 U.S. 266, 273.)
Based on their training and experience, the deputies in this case knew the alley in which they encountered appellant and Christopher was a high crime gang area where a shooting had occurred not long ago. They also had reason to believe Christopher was an armed gang member, due to his gloves and the letters on his hat. Because the facts forming the basis for reasonable suspicion must be understood through the lens of those who are "versed in the field of law enforcement" (United States v. Cortez, supra, 449 U.S. at p. 418), we cannot lightly dismiss these circumstances. Indeed, case law confirms they are relevant to the reasonable suspicion equation. (Adams v. Williams (1972) 407 U.S. 143, 144, 147-148 [fact that encounter occurred in a high crime area may contribute to reasonable suspicion]; United States v. Reid (9th Cir. 2017) 692 Fed.Appx. 825 [defendant's membership in violent street gang may give rise to reasonable suspicion].)
It is also significant appellant and Christopher were walking and looking around in a nervous manner, and one of them crouched down and appeared to discard something as the deputies approached them. Such furtive behavior is a common indicator that criminal activity may be afoot. (Illinois v. Wardlow, supra, 528 U.S. at p. 124 ["nervous, evasive behavior is a pertinent factor in determining reasonable suspicion"]; United States v. Watson (5th Cir. 1992) 953 F.2d 895 [finding it suspicious the defendant moved in his seat as if to conceal something when officers approached his car].)
In attempting to paint a less ominous picture of the encounter, appellant points out the "CR" on Christopher's hat might have signaled he was a fan of the Colorado Rockies baseball team, not a member of the Compadres street gang. And Christopher might have been wearing gloves that night because he was cold, not because he was armed or expecting to be handling a firearm. Of course, it's also possible that he and appellant were wearing bandanas over their faces to guard against the COVID-19 virus, not for some nefarious purpose.
However, "'[t]he possibility of an innocent explanation [for a suspect's actions] does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.' [Citation.]" (People v. Souza (1994) 9 Cal.4th 224, 230, 233.) The question of reasonable suspicion turns not on "'whether particular conduct is "innocent" or "guilty," but the degree of suspicion that attaches to particular types of noncriminal acts.'" (United States v. Sokolow (1989) 490 U.S. 1, 10, quoting Illinois v. Gates (1983) 462 U.S. 213, 243-244, fn. 13.) Viewing the encounter from the deputies' perspective as trained gang investigators, they were rightfully suspicious of what they saw in the alley that night, even though they did not witness any patently criminal behavior on behalf of appellant or Christopher.
Appellant attempts to water down the level of suspicion by viewing the circumstances individually and in isolation from one another. But that's not how we analyze the reasonable suspicion issue. (United States v. Arvizu, supra, 534 U.S. at p. 274 [rejecting such a "divide-and-conquer" approach].) Rather, we look at the totality of the circumstances presented, and their possibly synergistic effect, to determine whether the detention in question was supported by reasonable suspicion. (Id. at p. 273.) It is, thus, not determinative that, standing alone, some of the circumstances in this case would not rise to the level of reasonable suspicion.
Appellant also attacks the motives of the deputies, claiming they targeted him and Christopher simply because they were two young Hispanics walking in a high crime area who happened to be dressed like gang members. In support of this claim, appellant asserts Beltran's use of the word "bebopping" to describe his and Christopher's conduct is racially incendiary because it implies "racial otherness." And he accuses the deputies of stereotyping and "dog whistling" for attributing suspicion to their nervous behavior. Although he did not raise these claims in the trial court, appellant would have us believe the deputies' actions run afoul of laws designed to eliminate discrimination in our criminal justice system. (See Stats. 2020, ch. 317, § 2 [racial justice reform act]; Assembly Bill No. 333 (2021-2022 Reg. Sess.) [narrowing the scope of California's gang laws].)
We are not persuaded. As a procedural matter, the claim has been forfeited due to appellant's failure to raise it below. (Evid. Code, § 353; People v. Barnes (2013) 216 Cal.App.4th 1508, 1519.) And, in any event, the record shows appellant and Christopher had their hoods pulled up and were wearing bandanas over their faces during the encounter, so it would have been difficult for the deputies to discern their race. In fact, even though the deputies had prior contacts with Christopher, they did not know who he was until they arrested him and removed his bandana. There is nothing to suggest appellant's detention was racially motivated or designed to undermine his civil rights.
As for the seizure of his firearm, appellant contends the deputies lacked reasonable suspicion to pat him down for weapons because there was nothing to suggest he was armed and dangerous. However, during appellant's detention, he made a telling comment when Beltran asked him if he had anything on him that the deputy should know about. After Beltran sought clarification of his initial response, which was inaudible, appellant looked down nervously and said, "Just get it." Viewing that remark in the context of the surrounding circumstances, it was entirely reasonable for Beltran to believe appellant might be armed. Therefore, he was justified in patting appellant down and seizing his gun. (See In re H.M. (2008) 167 Cal.App.4th 136, 144 [police lawfully patted down suspected gang member who was acting nervously during encounter].) Because appellant's detention and patdown were both lawful, the trial court properly denied his motion to suppress.
Designation of Offense
As part of his disposition agreement, appellant admitted possessing a firearm as a minor, which is a "wobbler" offense, meaning it is punishable as a misdemeanor or a felony. (Pen. Code, §§ 29610, subd. (a), 29700.) Therefore, pursuant to Welfare and Institutions Code section 702, the trial court was required to declare the offense one or the other. (In re Manzy W. (1997) 14 Cal.4th 1199, 1204, as recently reaffirmed by In re F.M. (May 4, 2023, S270907) __Cal.5th __.) However, as the parties point out, the court failed to do so. Therefore, the matter must be remanded for a formal declaration as to whether appellant's offense is a misdemeanor or a felony. (Ibid.)
Pitchess Motion
Lastly, appellant asks that we independently review the trial court's handling of his Pitchess motion to determine whether any discoverable material was improperly withheld from the defense. Having reviewed the sealed transcript of the motion hearings, we find no basis to disturb the court's Pitchess ruling.
In Pitchess, our Supreme Court held a defendant has a right to discovery of the personnel records of peace officers to ensure "a fair trial and an intelligent defense in light of all relevant and reasonably accessible information." (Pitchess, supra, 11 Cal.3d at p. 535.) However, the right is not unlimited; only those records material to the pending litigation are subject to release. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019; Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 1043-1045.)
In this case, appellant made a Pitchess motion with respect to deputies Guzman and Beltran, as well as a Santa Ana police officer who arrived on the scene shortly after appellant was taken into custody. The trial court found good cause to conduct an in camera review of their personnel records. However, after conducting that review, the court determined there was nothing discoverable in their records. Appellant requests that we independently review those records to ensure the court's determination was correct.
Respondent does not oppose the request, and we agree independent review would be the most effective way to assess the propriety of the court's order. (See People v. Nguyen (2017) 12 Cal.App.5th 44, 49-51 (unanimous conc. opn. of Bedsworth, Acting P.J.).) But our Supreme Court has determined that, in the context of a Pitchess motion, meaningful appellate review can be accomplished by examining the sealed transcript of the trial court's in camera review proceedings and seeing if the trial court said it adequately fulfilled its function. (People v. Myles (2012) 53 Cal.4th 1181, 1209; People v. Mooc (2001) 26 Cal.4th 1216, 1229.) Therefore, we have no basis for examining the officers' personnel records ourselves.
Having reviewed the sealed transcripts of the hearings on appellant's discovery motion, we find the trial court fulfilled its duties under Pitchess by making a record of the documents it examined and explaining the basis for its decision. (See People v. Mooc, supra, 26 Cal.4th at p. 1229 [in ruling on Pitchess motion, the trial court should make a record of the documents it examined by describing them on the record]; People v. Bipialaka (2019) 34 Cal.App.5th 455, 462 [same].) We therefore have no ability to disturb its ruling.
DISPOSITION
The matter is remanded to the juvenile court with directions to declare whether appellant's offense is a misdemeanor or a felony, in accordance with Welfare and Institutions Code section 702. In all other respects, the judgment is affirmed.
WE CONCUR: O'LEARY, P. J. MOORE, J.