In re J.H. CA4/2

• Court: California Court of Appeal
• Decided: December 18, 2013
• Docket: E057327
• Status: Unpublished

Opinion

Filed 12/18/13 In re J.H. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re J.H., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E057327 Plaintiff and Respondent, (Super.Ct.No. J245787) v. OPINION J.H.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Barbara A.

Buchholz, Judge. Affirmed as modified.

Sarita I. Ordonez, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Warren

Williams and Marissa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant J.H. was made a ward of the juvenile court and placed on probation for

one year after the court found true an allegation that he possessed a concealed handgun.

J.H. challenges the court’s order denying his motion to suppress evidence, specifically,

the handgun and his statements admitting guilt. He also challenges three of his probation

conditions. As discussed below, we affirm the trial court’s order denying the motion to

suppress, but order one of the probation conditions modified as described.

FACTS AND PROCEDURE1

At approximately 6:45 p.m. on August 30, 2012, San Bernardino Police Officers

Jason Heilman and Byron Clark were patrolling a high-crime residential area2 in a

marked patrol car, as part of their duties with the gang unit. Officer Heilman saw J.H.

“running . . . in a full sprint” across the street 50 or 60 feet away, coming from between

some apartment buildings. J.H. was wearing street clothes, as opposed to athletic clothes,

and was alone. It was a typical hot August evening. J.H. was holding the front pocket of

his hooded jacket so that it appeared there was something heavy in the pocket.

Specifically, J.H. was holding the object “still like so it wouldn’t move around. . . . that

part of the hoodie was not moving. So, it was obvious there was something in there that

he was holding from moving around.” J.H.’s hands were outside the pocket, not inside.

Officer Heilman could not see the shape of the object or any shiny metal, but he believed,

1The facts leading up to the detention and discovery of the handgun are taken from Officer Jason Heilman’s testimony at the hearing on J.H.’s motion to suppress evidence. (Welf. & Inst. Code, § 700.1.)

2 Officer Heilman described the area as “the projects.” 2 based on his extensive experience and training, that J.H. was carrying a gun. J.H. looked

in the officer’s direction as he crossed the street. After Officer Heilman yelled at J.H. to

“stop,” J.H. again “looked in [Officer Heilman’s] direction,” but continued to run.

Officer Heilman could not be sure if J.H. saw him. J.H. ran into the courtyard of an

apartment complex across the street from where he had emerged. Officer Heilman lost

sight of J.H. Officer Heilman did not recognize J.H. from any previous encounters.

Officer Heilman got out of the patrol car and followed J.H. on foot, while Officer

Clark circled the block in the patrol car. Officer Heilman crossed another street and

entered the courtyard of an apartment complex, about 200 or 250 feet from where the foot

chase began. At some point, Officer Heilman found J.H. “kind of hiding against or

standing against a wall to the back of an apartment.” J.H. was “standing against the wall

. . . as . . . close as . . . he possibly could, standing like kind of straight and very still.”

Officer Heilman approached J.H. and told him to get on the ground. J.H. did not comply

and said he was just going to his girlfriend’s place. Officer Heilman put J.H. on the

ground and handcuffed him. Officer Clark arrived and started looking around. About 10

to 15 feet from where J.H. had been standing, Officer Clark lifted the top of a barbecue

grill and found a loaded semiautomatic handgun inside. A woman came out from a

nearby apartment and identified herself as J.H.’s girlfriend.

On September 4, 2012, the People filed a juvenile wardship petition under Welfare

and Institutions Code section 602, subdivision (a), alleging J.H. committed felony

possession of a concealed weapon by a minor. (Pen. Code, § 29610.) On September 7,

3 2012, J.H.’s counsel filed a motion to suppress evidence. On September 13, 2012, the

People filed their opposition, to which J.H.’s counsel filed a reply on September 18,

2012. On September 19, 2012, the juvenile court held a hearing on the motion, after

which it denied the motion. The court reasoned that a reasonable police officer

considering the facts known at the time would have had a reasonable suspicion that J.H.

was connected with some type of crime.

The contested jurisdictional hearing was held on September 26, 2012, at which the

juvenile court found the allegation true. On October 11, 2012, the court made J.H. a

ward of the court and placed him on probation, in his grandmother’s home until October

11, 2013, subject to conditions. This appeal followed.

DISCUSSION

1. The Detention Was Constitutional

J.H. argues the police had no reasonable suspicion to believe he was engaged in

criminal activity because there were no specific and articulable facts to support such a

conclusion. We disagree, because Officer Heilman testified that the factors that first

drew his attention to J.H. and made him suspect J.H. might be involved in criminal

activity were that J.H. was in a “full sprint” and appeared to be holding a gun while doing

so. These factors alone provided reasonable suspicion to justify the detention.

“The standard of appellate review of a trial court’s ruling on a motion to suppress

is well established. We defer to the trial court’s factual findings, express or implied,

where supported by substantial evidence. In determining whether, on the facts so found,

4 the search or seizure was reasonable under the Fourth Amendment, we exercise our

independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362.)

In determining whether a detention is legal, reviewing courts consider the totality

of the circumstances. (People v. Souza (1994) 9 Cal.4th 224, 230-231 (Souza).) “‘[I]n

order to justify an investigative stop or detention the circumstances known or apparent to

the officer must include specific and articulable facts causing him to suspect that (1)

some activity relating to crime has taken place or is occurring or about to occur, and (2)

the person he intends to stop or detain is involved in that activity. Not only must he

subjectively entertain such a suspicion, but it must be objectively reasonable for him to

do so: the facts must be such as would cause any reasonable police officer in a like

position, drawing when appropriate on his training and experience [citation], to suspect

the same criminal activity and the same involvement by the person in question.’”

(People v. Loewen (1983) 35 Cal.3d 117, 123.)

The full array of specific and articulable facts that, considered together and based

on his experience and training, caused Officer Heilman to detain J.H. are the following:

(1) J.H. “sprinted” across a street, coming from between some apartment buildings and

disappearing into another set of apartment buildings, without any particular

nonsuspicious justification, such as playing a game with others or wearing athletic attire;

(2) J.H. continued running after twice looking in the officer’s direction, the second time

after being told to “stop”; (3) J.H. was in a high-crime area known for gun violence; (4)

J.H. had both hands on the outside of the front pocket of his hoodie jacket, worn on a hot

5 August evening, and appeared to be holding steady a heavy object in the pocket so it

would not move around; and (5) after the foot chase, J.H. was found standing very still

and flat up against a wall, in a manner that appeared intended to avoid detection.

The fact we find most persuasive and which, from Officer Heilman’s testimony,

appears key to the formation of his reasonable suspicion that J.H. might be involved in

criminal activity, was the way J.H. appeared to be holding something heavy in his front

jacket pocket so that it would not move around. Officer Heilman was an officer with the

police department’s gang unit with extensive experience, and had attended and taught

numerous classes on recognizing and dealing with gang members. Officer Heilman

testified he had “a lot of” on-the-job training, in which he learned to look for specific

signs that indicate a person might be holding a gun. “Sometimes their movements, the

way they’re walking, if they’re holding their waistband because maybe they have a pistol

in their pocket or in their waistband they don’t want to fall out, the way they react when

they see the police drive by. . . .” In addition, Officer Heilman testified that “from my

experience I know that when people carry guns on them in the streets, lot of times they

will put it in that hoodie pocket to conceal it.” We hold that Officer Heilman

appropriately drew on his training and extensive experience with gun crime and how

people hold and attempt to conceal guns when he concluded that J.H. might be holding a

gun and running from criminal activity.

In addition, Officer Heilman testified that the area is known for narcotics and gun-

related offenses, including some recent murders and a shooting. Officer Heilman further

6 stated that “[g]uns are very common over there.” While a suspect’s presence in a high-

crime area is not by itself a fact justifying detention, it is a relevant factor and need not be

ignored by police. (People v. Huggins (2006) 38 Cal.4th 175, 242.)

Like the suspect’s presence in a high-crime area, flight from police does not, by

itself, justify detaining a suspect. However, in conjunction with other suspicious

circumstances, such as the ones present here (high-crime area, appearing to be holding a

gun), such flight can help to create reasonable suspicion. (See Souza, supra, 9 Cal.4th at

p. 239.) J.H. argues the evidence does not establish that he fled from police or even knew

they were present. It is true that Officer Heilman testified that he had no way of knowing

for sure whether J.H. actually saw him, either the first time J.H. looked in the direction of

the patrol car, or the second time when he did so directly after Officer Heilman told him

to “stop.” However, we think it was reasonable for Officer Heilman to conclude, at that

moment, that J.H. likely saw the black and white patrol car after looking in that direction

twice, once while crossing the street and again after Officer Heilman yelled at him to

stop, and deliberately chose to continue running away from the police.

These circumstances, that J.H. was running across a street at full speed in a high-

crime area and was carefully holding a heavy object that, in the officer’s considerable

experience, could well be a gun, leads us to conclude that Officer Heilman reasonably

suspected J.H. might be involved in criminal activity. We uphold the juvenile court’s

order denying the motion to suppress.

7 2. Conditions of Probation

J.H. also challenges the conditions of his probation that prohibit him from:

coming within one block of a school, being in a courthouse, courthouse parking lot or

courtroom without a subpoena, and being present in gang gathering areas. As discussed

below, we affirm the imposition of these conditions, but order the courthouse condition

modified as described to preserve J.H.’s right of access to court proceedings.

“Pursuant to Penal Code section 1203.1, the sentencing court has broad discretion

to prescribe reasonable probation conditions to foster rehabilitation and to protect the

public so justice may be done. [Citations.]” (People v. Miller (1989) 208 Cal.App.3d

1311, 1314.) While a probationer retains rights of privacy and liberty under the federal

Constitution (People v. Keller (1978) 76 Cal.App.3d 827, 832, overruled on other

grounds in People v. Welch (1993) 5 Cal.4th 228, 237), probation conditions may

nevertheless place limits on constitutional rights if necessary to meet the goals of

probation (People v. Bauer (1989) 211 Cal.App.3d 937, 940-941). Furthermore, as

previously stated, “[a] condition of probation will not be held invalid unless it ‘(1) has no

relationship to the crime of which the offender was convicted, (2) relates to conduct

which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably

related to future criminality . . . .’ [Citation.]” (People v. Lent (1975) 15 Cal.3d 481,

486, fn. omitted (Lent).)

8 “Prohibitions against a variety of gang-related activities have been upheld when

imposed upon juvenile offenders. [Citations.]” (People v. Lopez (1998) 66 Cal.App.4th

615, 624 (Lopez).)

Here, J.H. admitted to being a gang member. He had previous arrests for

residential burglary, petty theft, and gun possession. Given that J.H. was an admitted

gang member with a criminal history, the juvenile court could reasonably determine that

his disassociation from gang-related activities was an “essential element of any

probationary effort at rehabilitation because it would insulate him from a source of

temptation to continue to pursue a criminal lifestyle. [Citations.]” (Lopez, supra, 66

Cal.App.4th at p. 626.)

A. School and Courthouse Prohibitions

Term 18 of J.H.’s probation requires that he “[n]ot be on any school campus or

within a one-block radius of any school campus unless enrolled there, or with prior

administrative permission from school authorities.”

Term 24 requires that J.H. “[n]ot appear at any court building, including the lobby,

hallway, courtroom or parking lot, unless he/she is a party, defendant or subpoenaed as a

witness to a court proceeding.”

J.H. argues these conditions of his probation violate both his First Amendment

rights to freedom of association and movement and are not reasonably related to his

offense under the test set forth in Lent, supra, 15 Cal.3d 481.

9 A probation condition which infringes on a constitutional right, such as a right to

travel, is permissible where it is necessary to serve the dual purpose of rehabilitation and

public safety. (People v. Peck (1996) 52 Cal.App.4th 351, 362 [Fourth Dist., Div. Two].)

In this case, the school condition serves this dual purpose because it prohibits J.H. from

approaching a school campus, and therefore juveniles, for purposes of recruiting children

into his gang. Hence, this condition serves as a deterrent for J.H. to actively recruit on

behalf of his gang at a convenient location, while protecting the children from being

approached by J.H. The trial court, therefore, properly exercised its discretion in

imposing this probation condition because it was reasonably related to J.H.’s future

criminality. (See People v. Carbajal (1995) 10 Cal.4th 1114, 1121 [even conditions that

regulate conduct not in itself criminal are valid as long as they are reasonably related to

the crime a defendant was convicted of or to any future criminality].)

Regarding the condition restricting J.H.’s presence near a courthouse, we also note

that a probation condition that is not “sufficiently narrowly drawn” may be modified and

affirmed as modified. (Lopez, supra, 66 Cal.App.4th at p. 629; see also In re E.O. (2010)

188 Cal.App.4th 1149, 1157.) We agree with the People, and with the court in In re

E.O., that this probation condition is overbroad because it applies to court cases that are

not gang-related, and so unnecessarily restricts J.H.’s access to the courts. Therefore, we

order the language of probation condition 24 to be modified to read as follows:

“You must not attend any gang-related court case unless at least one of these

things is true:

10 “(1) You are a party to the case.

“(2) You or a member of your immediate family is a victim of the activity

charged in the case.

“(3) You are there to obey a subpoena, summons, court order, or other official

order to attend.

“(4) A party’s attorney has asked you to testify or to speak to the court.

“In all other cases, you must stay at least 50 feet away from the entrance to any

courtroom where you know there is a gang-related case going on.” (In re E.O., supra,

188 Cal.App.4th at p. 1157, fn. 5.)

B. Gang Gathering Area

Term 23 requires that J.H. “[n]ot be present in any area, which he/she knows to be

a gang gathering area.” J.H. argues this condition is both unconstitutionally vague and

infringes on his rights to travel and associate. However, as the People argued at the

disposition hearing, such language has been upheld by case law. In People v. Barajas

(2011) 198 Cal.App.4th 748, our colleagues in the Sixth District upheld a probation

condition that the defendant not “visit or remain in any specific location which you know

to be or which the probation officer informs you to be an area of criminal street gang-

related activity.” (Id. at pp. 754-760.) Such language withstands the constitutional

challenges raised by J.H. because “[t]he knowledge condition suffices to give defendant

fair warning of what areas to avoid and ensures that he will not be found in violation due

to a factual mistake, accident, or misfortune.” (Id. at p. 760.) In addition, as discussed

11 above with regard to the other two challenged probation conditions, some infringement of

constitutional rights is permissible where necessary to serve the dual purpose of

rehabilitation and public safety (see also id. at pp. 755-756), and we conclude that this

condition is narrowly drawn enough to withstand J.H.’s challenge based on his

constitutional rights to travel and associate.

DISPOSITION

The language of probation condition 24 is modified as set forth above. In all other

respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.

We concur:

HOLLENHORST J.

KING J.