Filed 9/13/13 In re S.P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.P., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, E055976 Plaintiff and Respondent, (Super.Ct.No. J23826) v. OPINION S.P.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza,
Judge. Affirmed with directions.
David L. Annicchiarico, 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, Melissa Mandel and Charles C.
Ragland, Deputy Attorneys General, for Plaintiff and Respondent.
1 S.P., a minor, appeals after he was adjudicated a ward of the juvenile court for
possession of metal knuckles. He contends that the juvenile court erred in denying his
motion to suppress evidence under Penal Code section 1538.5. He further contends that,
even if the adjudication was proper, two of the conditions of his probation are
unconstitutionally vague and overbroad. We agree that one of the probation conditions
should be modified to include a knowledge requirement. Otherwise, however, we affirm.
FACTS AND PROCEDURAL HISTORY
On March 14, 2011, Roy Rojas was a campus security officer assigned to San
Gorgonio High School in San Bernardino. A park is located across the street on the east
side of the school campus. On the day in question, at approximately 3:05 p.m., students
were leaving the campus. Rojas saw two groups of students, both composed of Hispanic
males, in the park across from the school. The two groups were comprised of San
Gorgonio students, and numbered about 25 to 30 in all. Rojas was familiar with both
groups, and knew from his day-to-day contacts with the students that the groups did not
socialize together, and often engaged in fights. Rojas believed that a fight was brewing
in the park, because the two groups were exchanging vulgarities and calling one another
out to fight. Rojas and two other security officers attempted to disperse the groups,
telling the young men to leave, and to “break it up.”
Just then, a black car pulled up at the park. Six or seven young men, including the
minor, were “packed” into the car. Rojas did not recognize these young men; they did
not appear to be San Gorgonio students. After parking the car, the new arrivals got out of
2 their car and went to the trunk area. Rojas could not see exactly what the young men
were doing, but they appeared to be reaching for something or looking at something in
the trunk. Leaving the trunk open, the new arrivals began walking toward the area where
the confrontation was taking place between the two groups of students. Rojas did not see
anything visible in the hands of the newly arrived young men as they walked toward the
fight.
Rojas believed that the new arrivals were going toward the fight with the intention
of joining in. From his experience, Rojas knew that it was common for juveniles to call
in friends or nonstudents to join in larger fights. He also heard “a couple of guys that
were in that group were calling someone out.” Rojas called for police assistance. The
new arrivals were young men that he did not recognize, and they had gone to the back of
their car by the trunk; Rojas feared that they were “attempting to go grab something in
regards to the fight.”
Officer Steven Nelson of the San Bernardino Unified School District responded to
the call of a large group fight brewing in the park. He received radio information that
another large group had arrived in a black car, had gone to the trunk of the car, and “were
now clustered as a group and walking into the park towards where that existing group
was . . . .” Officer Nelson was already nearby when he received the call, and he arrived
within a few seconds. He saw the parked black car, and a group of six or seven young
Hispanic males walking away from the car and advancing toward the large gathering of
students in the park. Rojas pointed toward the group of six or seven young men heading
3 away from the car and into the park. Officer Nelson yelled after the young men to stop,
and to come back to the sidewalk. The young men complied; they returned to the
sidewalk and sat on the curb.
Officer Nelson directed Rojas to conduct a patdown search on the young men. He
was concerned, “[i]nitially just based on sheer numbers. There was more of that group
than there were security personnel or myself. [¶] In conjunction with my training and
experience, it’s not unusual when we have fights that occur after school that one or more
individuals may have weapons on them, so for the safety of myself and the security
personnel, as well as all the surrounding students that were in the immediate vicinity, I
felt that [it] was necessary to conduct a pat-down [sic] of the exterior of their clothing to
make sure they were not in possession of any obvious weapons.”
Rojas patted down the minor, and felt the outline of metal knuckles in the minor’s
pocket. He handcuffed the minor and removed the metal knuckles from the minor’s
pocket.
A petition under Welfare and Institutions Code section 602 was filed, charging the
minor with felony possession of metal knuckles (Pen. Code, § 12020, subd. (a)(1)
[former Pen. Code, § 12020, repealed effective January 1, 2011, and replaced, without
substantive change, by § 22210, made operative January 1, 2012].) In May 2011, the
minor was placed on informal probation. (Welf. & Inst. Code, § 654.2.) Over the
ensuing months, the minor had failed to comply with a number of the conditions of his
probation; he missed appointments with his probation officer, he failed to complete his
4 community service, he did not attend required substance abuse and weapons diversion
programs, and his attendance at school was poor. On February 6, 2012, the court revoked
the minor’s informal probation and reinstated the petition.
The court heard and denied the minor’s motion to suppress evidence. The charge
was amended to a misdemeanor, and the court entered an admission to that count. At the
disposition hearing, the court declared the minor to be a ward of the juvenile court, and
placed him on probation, in the custody of his mother.
The minor filed notices of appeal on March 28, and April 12, 2012.
ANALYSIS
I. The Trial Court Properly Denied the Motion to Suppress
Defendant first contends that the detention was unlawful because Officer Nelson
had no reasonable suspicion that defendant was about to engage in criminal activity.
A. Standard of Review
In ruling on a motion to suppress evidence under Penal Code section 1538 .5, the
trial court judges the credibility of witnesses, resolves conflicts in the testimony, weighs
the evidence, and draws any factual inferences as necessary to its determination. (People
v. Leyba (1981) 29 Cal.3d 591, 596.) On appeal, “all presumptions favor the exercise of
[the trial court’s] power, and the trial court’s findings on such matters, whether express or
implied, must be upheld if they are supported by substantial evidence.” (Ibid.) However,
the appellate court also exercises its independent judgment to determine whether, on the
facts found, the search or seizure was reasonable under the Fourth Amendment. (People
v. Maury (2003) 30 Cal.4th 342, 384.)
5 B. The Detention Was Proper
“[A]n officer may, consistent with the Fourth Amendment, conduct a brief,
investigatory stop when the officer has a reasonable, articulable suspicion that criminal
activity is afoot.” (Illinois v. Wardlow (2000) 528 U.S. 119, 123 [120 S.Ct. 673, 145
L.Ed.2d 570].) Here, Officer Nelson had a reasonable, articulable suspicion that criminal
activity was afoot.
Rojas, one of the campus officers, saw the students leaving the school and entering
the park. Two groups of students, composed of young Hispanic men, appeared to be
about to engage in a fight. The groups were shouting challenges at one another. Rojas
knew that the groups of students were not friendly and did not “hang out together.” To
all appearances, a large fight was brewing.
Just when the fight seemed imminent, another group of young men, including the
minor, arrived in a black car. The young men, who also appeared to be Hispanic, were
“packed” into the car; six or seven got out of the car and clustered around the trunk. In
Rojas’s experience, groups of students engaged in a fight would call in their friends or
other nonstudents to join in larger fights. Rojas could not see precisely what the young
men were doing at the trunk, but none of the young men appeared to have anything in
their hands when the group left the car. The young men started walking in a group
toward the area where the fight was coalescing.
Officer Nelson was already in the vicinity in his patrol car, and he could see the
students gathering in the park at the time he received the radio information from Rojas, to
6 the effect that “a large group fight [was] pending in the park.” He also heard Rojas’s
radio broadcast that an additional large group had arrived in a black car, had gone to the
trunk of the car, and “were now clustered as a group and walking into the park towards
where that existing group was . . . .” Because he was already close enough to see the
park, Officer Nelson arrived within seconds of Rojas’s radio call. He observed a group
of six or seven Hispanic young men, who “appeared to be heading away from the car and
towards the area of the large gathering in the park itself.” Rojas also pointed to the
group, indicating that they were the subjects of his radio broadcast. It was at this point
that Officer Nelson called after the new arrivals to stop, and to return to the sidewalk
area.
Officer Nelson could see the large fight developing in the park. The altercation
appeared to be between two groups of Hispanic students. Immediately, the minor and his
companions arrived, six or seven young men “packed” into the newly arrived black car.
After stopping at the car’s trunk, and appearing to reach for something inside, the young
men walked in a group toward the altercation. Based on the totality of the circumstances,
Officer Nelson had a reasonable, articulable suspicion that the minor and his companions
were about to engage in criminal acts, i.e., to join the fight.
The minor protests that there were many recreational activities available in the
park (e.g., skateboard course, basketball courts, baseball fields, soccer field, playground,
picnic tables, restrooms), and that he and his companions might have gone to the park for
any number of reasons. However, none of the young men were carrying anything visible
7 such as bats, racquets, skateboards, picnic coolers, basketballs, or anything else to
indicate that they had any reason to be at the park, other than to participate in the fight.
The timing of their arrival and apparent purposefulness in approaching the impending
altercation were sufficiently reasonable, articulable circumstances to justify a brief
detention. (See, e.g., People v. Lindsey (2007) 148 Cal.App.4th 1390, 1401 [Tip from
911 caller reported a shot fired in apartment complex, and described the shooter. The
officer responded within minutes, and saw the defendant, matching the description of the
shooter, and holding his waistband in a peculiar manner, as if a heavy object were
concealed there. This was sufficiently reasonable suspicion, under the totality of the
circumstances, to support a detention and patsearch of the defendant, i.e., that the
defendant had been involved in criminal activity and was presently armed and
dangerous.].)
C. The Patdown Search Was Proper
Law enforcement officers may conduct a patdown search incident to a detention
only under certain conditions. An officer may conduct a patdown search to determine if a
person is carrying a weapon after the officer observes suspicious behavior—prompting a
reasonable suspicion—that the person is armed and dangerous to the officer or others.
(Terry v. Ohio (1968) 392 U.S. 1, 24 [88 S.Ct. 1868; 20 L.Ed.2d 889] (Terry).) The
officer’s patdown search—the “frisk”—was “ ‘only a “frisk” for a dangerous weapon. It
by no means authorizes a search for contraband, evidentiary material, or anything else in
8 the absence of reasonable grounds to arrest. Such a search is controlled by the
requirements of the Fourth Amendment, and probable cause is essential.’ ” (Terry,
supra, 392 U.S. 1, at p. 16, fn. 12 [20 L.Ed.2d at p. 903, fn. 12].) The California
Supreme Court has also unanimously so held. (People v. Lawler (1973) 9 Cal.3d 156,
161 [patdown search “only” for weapons]; accord People v. Garcia (2006) 145
Cal.App.4th 782, 788.)
Here, Officer Nelson had good reason to suspect that one or more of the young
men was armed and presented a physical danger to himself or others. Until backup
arrived, he and the campus officers were outnumbered. The young men, including the
minor, had spent time at the back of the car, appearing to reach for something in the
trunk. Given their approach as a group to the brewing fight, as well as the lack of
anything visible in their hands, it was reasonable to suspect that one or more of the young
men had secreted a weapon on his person. The timing of their arrival and their calling
out to others who appeared to be ready to fight justified the suspicion that they were
armed. Under the totality of the circumstances, the safety of the officers, students in the
area, and other bystanders was a genuine concern, justifying Officer Nelson’s direction to
have school officer Rojas pat the minor down for weapons. A reasonably prudent person
in such circumstances would be warranted in the belief that the brief search was
necessary for the safety of the officers and others. (Terry, supra, 392 U.S. 1, at p. 27.)
The evidence discovered in the minor’s pocket (a weapon, metal knuckles) was not the
result of an unlawful search or seizure. The trial court properly denied the minor’s
motion to suppress the evidence.
9 II. One of the Minor’s Probation Conditions Should Be Modified to Include a
Knowledge Requirement
The minor contends that two of his probation conditions, condition 2 and
condition 14, are unconstitutionally vague and overbroad. Condition 2 required the
minor to “Obey parents, responsible adults and the probation officer . . . .” Condition 14
mandated that the minor “Not 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
12020 and/or Penal Code section 626.10.”
A juvenile court has broad discretion in selecting and imposing 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 vague or overbroad presents a question of law,
which the appellate court reviews independently. (In re Sheena K. (2007) 40 Cal.4th 875,
888.) Because of the rehabilitative function of the juvenile court, a probation condition
that might be improper or unconstitutional as to an adult, may nevertheless be permissible
as to a ward of the court. (Id. at p. 889.)
Here, the juvenile court placed the minor in the custody of his mother, upon terms
and conditions of probation, including the requirement that he “Obey parents, responsible
10 adults and the probation officer and cooperate in a plan of rehabilitation.” The minor
complains that the order that he “Obey . . . responsible adults . . . ,” is impermissibly
vague and overbroad, because it does not define the term “responsible.” He contends that
this term is not sufficiently narrowly tailored to protect his right to due process, i.e.,
notice of what is required to avoid violation. He also maintains that only “persistent
disobedience” should constitute a violation of the probation condition.
We disagree. The term “responsible adult,” when read in context, reasonably
identifies those adults who are responsible in some way for the minor’s care, guidance or
supervision, such as a parent, guardian, custodian, probation officer, or teacher.
Manifestly, the minor is not required to obey the directions of all persons over the age of
18. The term “responsible adult” reasonably limits the class of persons whom the minor
must obey. The minor’s suggestion that the probation condition should be modeled on
Welfare and Institutions Code section 601 [persistent or habitual refusal to obey
reasonable and proper orders of a parent, guardian or custodian is a basis to find a minor
to be a ward of the court] is without merit. Persistent or habitual disobedience is one
basis for imposing wardship; proof of persistent or habitual disobedience is therefore
required to establish the jurisdiction of the juvenile court in the first instance. Once
wardship has been established, however, the focus becomes the reform and rehabilitation
of the minor. (See, e.g., In re D.G. (2010) 187 Cal.App.4th 47, 52.) The minor has
already been adjudged a ward of the court; his history shows both law violations and past
11 violations of probation. His disobedience to persons exercising lawful control and
supervision over him need not be repeated, persistent, or habitual to constitute a violation
of his current probation. The minor does not have license to disobey his parents,
teachers, or probation officer, so long as he does so only occasionally or once in a while.
Probation condition 2 was not unconstitutionally vague or overbroad.
Probation condition 14 prohibited the minor from possessing dangerous or deadly
weapons: the minor must “Not 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
The minor contends that this condition is unconstitutionally vague and overbroad
in two distinct ways. First, he argues that the condition must be subject to a knowledge
requirement, i.e., that he must not knowingly possess any dangerous or deadly weapons.
Second, he claims the condition is overbroad because it “proscribes [his] possession of
everyday items, such as a bicycle chain . . . , without narrowly tailoring the condition to
require that he is only in violation if he intended to use the everyday item in an unlawful
manner.” He further maintains that, “it is beyond dispute that there is nothing improper
about a boy owning and riding a bicycle.”
As to the knowledge requirement, the minor is correct. The condition should be
modified to require that the minor “Not knowingly possess any dangerous or deadly
weapons . . . .” (People v. Freitas (2009) 179 Cal.App.4th 747, 751-752.) The People
concede the point.
12 As to the prohibition of “everyday items,” we begin by observing that a probation
“condition that imposes limitations on a person’s constitutional rights must closely tailor
those limitations to the purpose of the condition to avoid being invalidated as
unconstitutionally overbroad.” (In re Sheena K., supra, 40 Cal.4th 875, 890.) The minor
is generally correct that there is nothing improper in a boy owning or riding a bicycle,
but, as the People point out, there is no constitutional right at stake in prohibiting a minor
from possessing a bicycle chain. The probation condition is also reasonably tailored to
the purpose of the condition. Here, the minor was found in possession of metal knuckles
on his way to a fight. A bicycle chain may not be a dangerous or deadly weapon when it
is a component of a functioning bicycle, but if it is removed from the bicycle, it certainly
can be. The inclusion of a bicycle chain on the list of prohibited weapons is reasonable in
light of the offense, and is neither overbroad nor vague. The minor does not suggest any
other “everyday item” he finds objectionable, aside from a bicycle chain.
We shall order probation condition 14 modified to include a knowledge
requirement, but otherwise affirm.
DISPOSITION
The juvenile court properly denied the minor’s motion to suppress evidence.
We direct that probation condition 14 be modified to read that the minor shall
“Not 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
13 weapon or explosive substance or device as defined in Penal Code section 12020 and/or
Penal Code section 626.10.”
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MCKINSTER J. We concur:
HOLLENHORST Acting P. J.
MILLER J.