Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA305871, Michael A. Tynan, Judge.
Ann Krausz, 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, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
The People charged defendant John Edward Evans with possession for sale of cocaine base (Health & Saf. Code, § 11351.5; count 1) and transportation of a controlled substance (id., § 11352, subd. (a); count 2). The People further alleged that defendant served 12 prior prison terms (Pen. Code, § 667.5, subd. (b)) and previously was convicted of a violation of Health & Safety Code section 11351.5 (id., 11370.2, subd. (a)).
Following the denial of his motion to suppress evidence (Pen. Code, § 1538.5), defendant pled guilty to count 2. Defendant was found ineligible for Proposition 36 treatment, and, after he was terminated from the Sentenced Offender’s Drug Court program, the trial court sentenced him to state prison for the midterm of four years and dismissed the remaining count and sentencing enhancement allegations. Defendant appeals, challenging the denial of his motion to suppress evidence. We conclude that the evidence defendant sought to suppress was the fruit of an illegal detention. We therefore reverse.
The facts are derived from the hearing on defendant’s motion to suppress evidence.
Around 7:30 p.m. on July 12, 2006, Los Angeles Police Officer Charles Joh was patrolling the area of Avalon Boulevard and 46th Street in Los Angeles when he observed defendant riding a bicycle “up and down on the sidewalk.” Believing that defendant was doing so in violation of the Vehicle Code, Officer Joh and his partner, Officer Norwood, approached defendant and “conducted a stop.”
Officer Joh asked defendant “if he ha[d] any narcotics or any weapons on him that [he] should know about.” Defendant said he did not. Officer Joh then asked defendant if he could search him. Defendant gave his consent. Before conducting the search, Officer Joh asked defendant if he was on probation or parole. Defendant stated he was on parole.
During the search, Officer Joh recovered “small cubes of off-white substance which resembled rock cocaine” from the front coin pocket of defendant’s pants. The officer also recovered a cellular telephone and some money.
DISCUSSION
Suppression Hearing and Ruling
At the hearing on defendant’s motion to suppress evidence, defense counsel argued that Officer Joh’s detention of defendant was constitutionally infirm because the Vehicle Code does not declare it unlawful to ride a bicycle on a sidewalk. Counsel further argued that the People failed to present any evidence that defendant violated Los Angeles Municipal Code section 56.15, paragraph 1, by riding his bicycle on the sidewalk “in a willful or wanton disregard for the safety of persons or property.” Defense counsel maintained that Officer Joh’s belief was based upon a misunderstanding of the law and that there could be no reasonable suspicion. Counsel added that inasmuch as the stop was unlawful, the consent to search subsequently obtained and knowledge that defendant was on parole were the fruit of the illegal detention, requiring the suppression of the cocaine and other items discovered during the search.
In its entirety, Los Angeles Municipal Code section 56.15, paragraph 1, provides: “No person shall ride, operate or use a bicycle, unicycle, skateboard, cart, wagon, wheelchair, rollerskates, or any other device moved exclusively by human power, on a sidewalk, bikeway or boardwalk in a willful or wanton disregard for the safety of persons or property.” (See Veh. Code, § 21206 [“This chapter does not prevent local authorities, by ordinance, from regulating the . . . operation of bicycles on pedestrian . . . facilities, provided such regulation is not in conflict with the provisions of this code.”]
The People, on the other hand, argued that Officer Joh had a good faith belief that riding a bicycle on the sidewalk “was sufficient to get them to approach. They can approach anyone legally. They ask him if he has any contraband or weapons. They ask can they search him. He says yes. They ask if he’s on probation or parole.” In the People’s view the officers’ “approach [was] legal.” The prosecutor asserted that “there [was] a minimum intrusion upon his time between the time that they stop him, if you want to call it stopping him and asking him those questions. And once those questions are asked, they have consent to go forward.”
The trial court then asked defense counsel, “what is wrong with—let’s just assume there wasn’t anything wrong with the way he was riding his bicycle — stopping him and asking him some questions and doing a pedestrian stop almost[?]” Defense counsel replied that reasonable suspicion was required for a stop and that Officer Joh did not have reasonable suspicion in this case, in that his belief that defendant was violating the Vehicle Code was based upon a misunderstanding of the law.
The trial court rejected defense counsel’s argument, stating: “I think riding a bicycle on the sidewalk in this matter the officer had a good faith belief. And he did stop and questioned defendant and he was on parole and had search or seizure conditions. The officer became aware of that and I am going to deny the [Penal Code section] 1538[.5] motion to suppress.”
Standard of Review
In ruling on a suppression motion under Penal Code section 1538.5, 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.”’” (People v. Ayala (2000) 23 Cal.4th 225, 255.) On appeal, this court reviews the trial court’s factual findings under the deferential substantial evidence standard. (Ibid.) We review de novo the trial court’s selection of the applicable law and application of the law to the facts. (Ibid.)
The Encounter Between Police and Defendant was not a Consensual One
In reliance on the “‘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’” (People v. Clark (1993) 5 Cal.4th 950, 993, fn. 19), and after acknowledging that this issue was not ruled upon below, the People contend that substantial evidence supports a finding that the encounter between defendant and Officer Joh was a consensual one rather than a detention. We disagree.
Officer Joh testified that he “conducted a stop” because he believed that defendant had violated the Vehicle Code. In light of the officer’s testimony, it would be disingenuous to characterize his “stop” as anything but a detention, particularly since the People at the suppression hearing made no attempt, as part of their burden of proof, to elicit details regarding the manner in which Officer Joh and his partner stopped defendant.
Officer Loh Lacked Reasonable Suspicion to Detain Defendant
“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231; accord, United States v. Arvizu (2002) 534 U.S. 266, 273-274; People v. Williams (2007) 156 Cal.App.4th 949, 958-959.) A stop or detention is not constitutionally authorized, however, if the circumstances are not reasonably consistent with criminal activity. (Arburn v. Department of Motor Vehicles (2007) 151 Cal.App.4th 1480, 1484.)
“[A]n officer’s reliance on the wrong statute does not render his actions unlawful if there is a right statute that applies to the defendant’s conduct.” (In re Justin K. (2002) 98 Cal.App.4th 695, 700; accord, People v. White (2003) 107 Cal.App.4th 636, 641.) At the suppression hearing, the People, who had the burden of proving the justification for the warrantless stop (People v. Johnson (2006) 38 Cal.4th 717, 723), did not cite to any statute or ordinance applying to defendant’s conduct. The prosecutor argued only that Officer Joh was justified in approaching defendant. The People did not disagree with defense counsel’s assertion that defendant’s conduct was not unlawful under the Vehicle Code or under Los Angeles Municipal Code section 56.15. The People made no attempt to cite to any other statutory provision or local ordinance that made it illegal for defendant to ride his bicycle up and down the particular sidewalk on which he was riding.
The People did not ask Officer Joh if there were pedestrians on the sidewalk or if defendant was speeding, weaving or otherwise riding his bicycle in a reckless manner. Officer Joh testified only that defendant rode his bicycle “up and down on the sidewalk.”
For the first time on appeal, the People argue that defendant violated Vehicle Code section 21650.1, which provides: “A bicycle operated on a roadway, or the shoulder of a highway, shall be operated in the same direction as vehicles are required to be driven upon the roadway.” The People maintain that by riding his bicycle in two different directions on the same sidewalk, defendant violated Vehicle Code section 21650.1. We are not convinced.
Contrary to the People’s assertion, People v. McKay (2002) 27 Cal.4th 601 is not analogous. In McKay, the defendant rode his bicycle in the wrong direction on a residential street in contravention of Vehicle Code section 21650.1. Also of no aid to the People is In re Devon C. (2000) 79 Cal.App.4th 929, in which a minor rode his bicycle on a sidewalk without wearing a bicycle helmet as required by Vehicle Code section 21212.
The term “highway” is defined as “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Highway includes street.” (Veh. Code, § 360.) The term “roadway” refers to “that portion of a highway improved, designed, or ordinarily used for vehicular travel.” (Id., § 530.) The term “sidewalk” means “that portion of a highway, other than the roadway, set apart by curbs, barriers, markings or other delineation for pedestrian travel.” (Id., § 555.)
“Street” is defined as “a way or place of whatever nature, publicly maintained and open to the use of the public for purposes of vehicular travel. Street includes highway.” (Veh. Code, § 590.) The terms “street” and “highway” are synonymous. (In re Devon C., supra, 79 Cal.App.4th at p. 933.)
While a sidewalk is part of a highway, it does not include that portion of the highway defined as the roadway. Since defendant was not riding his bicycle on a roadway, or the shoulder of a highway, the People cannot rely on Vehicle Code section 21650.1 to justify Officer Joh’s detention of defendant.
Inasmuch as the People failed to demonstrate that Officer Joh had a reasonable basis for believing that defendant’s conduct was criminal, we must conclude that the detention was unlawful. A suspicion founded on a mistake of law is not a reasonable basis for a lawful detention. (People v. Teresinski (1982) 30 Cal.3d 822, 830-831 [An officer who erroneously believed a curfew ordinance proscribed the defendant’s conduct “lacked any objectively reasonable basis to suspect that defendant or his passengers were violating the prohibitory language of the ordinance,” rendering defendant’s detention unreasonable.]; People v. White, supra, 107 Cal.App.4th at p. 639 [An officer’s mistaken belief that the law has been violated “though made in good faith, cannot form the basis for a . . . stop.”]; People v. Lopez (1987) 197 Cal.App.3d 93, 101 [officer’s detention of the defendant was not justified because defendant’s conduct was not unlawful]; U.S. v. Mariscal (9th Cir. 2002) 285 F.3d 1127, 1130 [“If an officer simply does not know the law, and makes a stop based upon objective facts that cannot constitute a violation, his suspicions cannot be reasonable.”]; but see People v. Glick (1988) 203 Cal.App.3d 796 [traffic stop lawful despite officer’s mistake].)
While we have no reason to doubt that Officer Joh acted in good faith, “there is no good faith exception to the exclusionary rule for police who enforce a legal standard that does not exist. Creating a good faith exception here would run counter to the exclusionary rule’s goal by removing an incentive for the police to know the law we entrust them to enforce. [Citation.]” (People v. White, supra, 107 Cal.App.4th at p. 644; U.S. v. Lopez-Soto (9th Cir. 2000) 205 F.3d 1101, 1106.)
We conclude that Officer Joh’s detention of defendant was unlawful at its inception. Due to a mistake of law, the officer lacked an objectively reasonable basis for believing that defendant was engaged in criminal activity and consequently was not constitutionally authorized to detain him. Inasmuch as defendant’s consent to search and acknowledgement that he was on parole flowed directly from the primary illegality, defendant’s motion to suppress evidence should have been granted. (People v. Boyer (2006) 38 Cal.4th 412, 448.)
The judgment is reversed.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.