In re S.G. CA4/2

• Court: California Court of Appeal
• Decided: August 29, 2014
• Docket: E059479
• Status: Unpublished

Opinion

Filed 8/29/14 In re S.G. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.G., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E059479 Plaintiff and Respondent, (Super.Ct.No. J248217) v. OPINION S.G.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Lynn M. Poncin,

Judge. Affirmed with directions.

Steven A. Brody, 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, Anthony DaSilva and Peter Quon,

Jr., Deputy Attorneys General, for Plaintiff and Respondent.

1 Defendant and appellant S.G. (minor) challenges the juvenile court’s denial of his

motion to suppress evidence (Welf. & Inst. Code, § 700.1)1 and two of the conditions of

his informal probation. Minor’s probation resulted from a true finding that he committed

misdemeanor graffiti vandalism or “tagging.” (Pen. Code, § 594, subd. (b).) As

discussed below, we affirm the judgment but direct that the two probation conditions be

modified as specified in the “Disposition” portion of this opinion.

FACTS AND PROCEDURE

On November 24, 2012, Fontana Police Officer Coillot and his partner stopped at

a convenience store to get a drink. As they were outside the store talking, they observed

minor leaving the store. Minor was wearing a backpack with what appeared to be graffiti

written on it. As minor walked out of the store, Officer Coillot said something to minor

like, “what’s up” and asked what was written on his backpack. Minor replied, “‘Resto.’”

Officer Coillot then asked minor if he was a tagger, to which minor responded, “I used to

tag.” At that point, the officer detained minor by asking him to sit down on the curb.

Officer Coillot entered the name “Resto” into a graffiti tracking website on his

smart phone. Within two minutes, the officer pulled up four digital photographs of

graffiti within the last year containing the name “Resto.” Officer Coillot showed the

photographs to minor, who admitted that two of the photographs “were his.”

1 All section references are to the Welfare and Institutions Code unless otherwise indicated.

2 The officer and his partner then arrested minor and took him to the police station.

After being advised of his Miranda2 rights, minor again admitted to having committed

the two instances of graffiti. Minor was issued a citation for felony vandalism over $400

(Pen. Code, § 594, subd. (b)(1)) and was released to his father.

On February 27, 2013, the People filed a section 602 petition alleging minor

committed one count of felony vandalism.

On April 16, 2013, minor filed a motion to suppress evidence on the ground that

he was illegally detained. The juvenile court heard the motion on April 24, 2013. After

hearing testimony from Officer Coillot and argument from the parties, the court denied

the motion.

On July 16, 2013, the court reduced the allegation to a misdemeanor and minor

admitted the allegation.

At the dispositional hearing held on August 13, 2013, the court placed minor on

informal probation in the custody of his parents. The court ordered minor to pay

restitution of $976.26.

This appeal followed.

DISCUSSION

1. The Motion to Suppress was Properly Denied

Minor argues police lacked reasonable suspicion to detain him in front of the

convenience store and therefore his admission to two acts of graffiti made during the

2 Miranda v. Arizona (1966) 384 U.S. 436.

3 detention should have been suppressed. He further argues that his later admission at the

police station was derived directly from the illegal detention, and so also should have

been suppressed. As discussed below, police pointed to specific articulable facts raising

a reasonable suspicion that minor might have committed graffiti vandalism, and so the

juvenile court correctly denied minor’s motion to suppress. Thus, we need not address

minor’s argument regarding the in-custody admission.

“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,

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.) “‘[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.)

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

on his experience and training, caused Officer Coillot to detain minor are the following:

(1) the officer observed that minor had graffiti-style writing on his backpack; (2) minor

responded to the officer’s pre-detention question that the writing on his backpack said

“Resto”; (3) minor responded that he “used to tag” to the officer’s pre-detention question

about whether he was a tagger; and (4) minor was in a high-crime area known for graffiti

vandalism.

The facts we find most persuasive and which, from Officer Coillot’s testimony,

appear key to the formation of his reasonable suspicion that minor might be involved in

criminal activity, are that minor had what appeared to be a graffiti moniker written on his

backpack and that he admitted that he “used to tag.” Officer Coillot was the officer in the

Fontana Police Department’s gang unit designated as the graffiti vandalism officer.

Before taking over from the prior graffiti vandalism officer the previous year, Officer

Coillot received two hours of formal instruction on graffiti and conducted two weeks of

field training with his predecessor. In addition, at the time of the suppression hearing,

Officer Coillot had investigated approximately 500 instances of tagging and had made

approximately 25 arrests for the crime of graffiti vandalism.

Officer Coillot testified that, in his training and experience, tagging is all about

fame and getting attention from other taggers. The more times a tagger tags, the more

fame he or she achieves. When asked why a tagger would tag his own property, Officer

Coillot testified that, “They want to show other taggers who they are. So that if another

tagger sees them, they can say, hey, I’ve seen your [tags.] It’s just another time where

5 they can be a walking billboard they can show other taggers who they are. And it gets

them fame. It gets them attention from other taggers.” This background information,

combined with minor’s statements that the graffiti on his backpack spelled “Resto,” and

he admitted that he “used to tag,” are all more than enough to justify a reasonable

suspicion that he might be involved in the criminal activity of graffiti vandalism.

Minor argues his admission that he “used to tag” signified merely that he at some

unspecified time in the past may have committed a crime, or that his tagging may have

only involved his own property and therefore not been criminal at all. In theory, this

could be true. However, based on the officer’s training and experience, a tagger would

gain no fame from tagging only his own property—the tagging of one’s own property

worked in conjunction with vandalizing other’s private or public property to gain fame

among other taggers. In addition, common sense indicates that a tagger would gain no

fame from displaying his moniker on his personal property when any tagging of publicly

viewable property took place very long ago. In any case, despite these theoretically

possible, non-criminal explanations for the graffiti on his own backpack and his answers

to the officer’s questions, these facts were also sufficient to objectively raise a reasonable

suspicion that minor was recently or currently engaged in criminal activities.

Finally, minor argues against a slippery-slope rule that would permit police to

involuntarily detain “just about any teenager” found in a high-crime area wearing a

backpack with suspicious writing, or merely sporting suspicious clothing, tattoos or

“other forms of protected speech and modes of self expression.” In so arguing, minor

neglects the final key fact that leads us to affirm the trial court’s denial of the suppression

6 motion—minor’s pre-detention admission that he “used to tag.” This general admission

that he had engaged in criminal activity in the past, combined with the indication that he

currently sported a backpack advertising his tagging moniker, was enough to raise the

officer’s reasonable suspicion that he might currently be engaging in graffiti vandalism.

We uphold the juvenile court’s order denying the motion to suppress.

2. Probation Conditions

Minor challenges the following two conditions of his probation as constitutionally

flawed. Probation term No. 11 requires minor to “[n]ot knowingly possess any

dangerous or deadly weapons, including but not limited to any knife, gun, or any part

thereof, ammunition, blackjack, bicycle chain, dagger or any weapon or explosive

substance or device as defined in Penal Code Section 16100-17360 and/or Penal Code

Section 626.10.” Probation term No. 20 requires minor to “not possess or have under

[his] control any aerosol paint containers, permanent markers or etching devices unless

under the supervision of a parent, guardian, instructor or employer.”

Minor argues probation term No. 11 must be modified to permit the momentary

possession of such weapons for use in self-defense.

Minor argues probation term No. 20 must be modified to include a knowledge

requirement.

Although minor did not object to these conditions when they were imposed in the

juvenile court, a claim that a probation condition is unconstitutionally flawed is not

forfeited on appeal by failure to raise it below. (In re Sheena K. (2007) 40 Cal.4th 875,

889.)

7 A juvenile court has broad discretion to select and impose probation conditions for

the purpose of rehabilitating a minor. (In re Josh W. (1997) 55 Cal.App.4th 1, 5.)

Generally, in the absence of a manifest abuse of that discretion, the court’s orders will not

be disturbed on appeal. (Ibid.) However, the claim that a probation condition is

unconstitutionally flawed presents a question of law, which the appellate court reviews

independently. (In re Sheena K., supra, 40 Cal.4th at p. 888.)

A. Weapon Possession

Minor contends that, as a matter of the state constitutional right to self-defense, he

cannot be precluded from using a deadly weapon in self-defense.

Self-defense is one of the “inalienable rights” secured by the California

Constitution. (Cal. Const., art. I, § 1; People v. McDonnell (1917) 32 Cal.App. 694, 706.)

Statutorily, under Penal Code sections 197, 198, 692, 693, and 694, self-defense and

defense of another are defenses to virtually any crime—even to possession of a firearm

by a convicted felon. (See generally People v. King (1978) 22 Cal.3d 12, 22-23.)

The right of self-defense, however, applies only in an emergency (People v. King,

supra, 22 Cal.3d at pp. 15, 24), in the face of an imminent threat (People v. Minifie

(1996) 13 Cal.4th 1055, 1064). It does not confer any right to possess a weapon

indefinitely, just in case. (People v. McClindon (1980) 114 Cal.App.3d 336, 339-340.)

We have the power to construe a probation condition. We also have the power to

modify a probation condition to bring it into compliance with the law. (In re Sheena K.,

supra, 40 Cal.4th at p. 888.) “‘[T]he rule that probation conditions that implicate

constitutional rights must be narrowly drawn, and the importance of constitutional rights,

8 lead us to the conclusion that this factor should not be left to implication.’ [Citation.]”

(People v. Freitas (2009) 179 Cal.App.4th 747, 751.) Thus, we will modify the probation

condition in accordance with minor’s proposed wording. It will prohibit minor from

possessing a deadly or dangerous weapon, “except when such possession is justified

because minor is using the weapon in accordance with the law of self-defense.”

B. Tagging Materials

Minor contends that probation condition No. 20 is unconstitutionally vague and

overbroad in that the condition must be subject to a knowledge requirement, i.e., that he

must not knowingly possess or have under his control any aerosol paint containers,

permanent markers, etc. Minor is correct. (People v. Freitas, supra, 179 Cal.App.4th at

pp. 751-752.) The People concede the point.

DISPOSITION

We direct that probation condition No. 11 be modified to read as follows: “Not

knowingly possess, except when such possession is justified because the minor is using

the weapon in accordance with the law of self-defense, any dangerous or deadly

weapons, including but not limited to any knife, gun, or any part thereof, ammunition,

blackjack, bicycle chain, dagger or any weapon or explosive or device as defined in Penal

Code Section 16100-17360 and/or Penal Code Section 626.10.”

We direct that probation condition No. 20 be modified to read as follows: “Do not

knowingly possess or have under your control any aerosol paint containers, permanent

markers or etching devices unless under the supervision of a parent, guardian, instructor

or employer.”

9 In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

KING J.

MILLER J.