Gregory S., In re

• Decision Date: 01 December 1980
• Docket Number: Cr. 48026
• Citation: 112 Cal.App.3d 764,169 Cal.Rptr. 540
• Parties: In the Matter of GREGORY S., a minor. The PEOPLE, Plaintiff and Respondent, v. GREGORY S., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

Page 540

169 Cal.Rptr. 540

112 Cal.App.3d 764

In the Matter of GREGORY S., a minor.

The PEOPLE, Plaintiff and Respondent, v. GREGORY S., Defendant and Appellant.

Cr. 48026.

Court of Appeal, First District, Division 1, California.

Dec. 1, 1980.

Hearing Denied Feb. 5, 1981.

David N. Bortin, Walnut Creek, John A. Meaden, III, Walsh, Morton, Meaden & Aljlouny, Moraga, for defendant and appellant.

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Edward P. O'Brien, Asst. Atty. Gen., Clifford K. Thompson, Jr., Franklin D. Elia, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Marshall W. Krause, Larkspur, Margaret C. Crosby, Alan L. Schlosser, Amitai Schwartz, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, for amicus curiae.

AGLIANO, ^* Associate Justice.

The Contra Costa County Juvenile Court found that appellant, a minor 15 years of age, resisted, delayed and obstructed Deputy Sheriff R. Flores in the discharge and attempted discharge of a duty of his office. (Pen.Code, § 148.) The minor was thus found to come within the provisions of section 602 of the Welfare and Institutions Code and declared a ward of the juvenile court.

This appeal questions (1) the legal sufficiency of the evidence to support the decision of the court, and (2) the propriety of the court's rulings on the admissibility of certain evidence.

The American Civil Liberties Union has filed a brief as amicus curiae in support of appellant.

Facts

The testimony was in conflict. However, by viewing the evidence, resolving conflicts and drawing reasonable inferences in the light most favorable to respondent as required (People v. Archerd (1970) 3 Cal.3d 615, 621, 91 Cal.Rptr. 397, 477 P.2d 421), we find the trial court's decision supported by the following substantial evidence.

On February 14, 1979, at 1:45 p. m., Deputy Sheriff Flores, on routine patrol, went to the Orinda residence of Mrs. Ahlstrom to investigate her complaint of "malicious mischief." She told Flores someone had pounded on her front door while she was seated at the rear deck of her house. She responded but found no one there. Returning to the deck via the side yard she saw the blond neighbor boy (appellant) hiding behind a stack of bricks near her property line. On being spotted he ran toward his house next door. She returned to the deck when, shortly, a ball of mud was thrown in her direction landing five feet away. She assumed appellant had thrown it. Flores told Mrs. Ahlstrom he would investigate.

The officer had had prior experience with Mrs. Ahlstrom and appellant's family. Neighbors had complained of noise made by appellant and his brother riding mini-bikes. Appellant's father, in the minor's presence, was hostile when Officer Flores related the complaint to him. Another time appellant's parents complained that Mrs. Ahlstrom was harassing appellant and his brother. Flores spoke with Mrs. Ahlstrom about the complaint, and, as a result of this and a prior experience with her, he suspected she had a mental problem.

Flores thus approached his present task with trepidation. Although he believed an assault had occurred, he did not then intend to arrest appellant. He first decided to telephone appellant's parents in order to avoid a hostile confrontation. However, while on the street near his patrol car, he saw appellant with his brother in their front yard and decided to contact him then. When appellant saw the officer he started to walk around the side of the house. Flores called out twice, "Hey you. Come here." Appellant ignored him and kept walking. The officer walked about 20 feet down the driveway to appellant's brother and asked where appellant had gone. The brother said he did not know.

Appellant appeared and told the officer to get off the property, adding, "This is private property." The officer informed appellant that he was investigating a complaint by the neighbor and had a legal right to be there. He told appellant he wanted to talk to him; he wanted to know his name. ¹ Flores' purpose at this point was to identify appellant as a suspect and to obtain his full name and date of birth.

Appellant responded that he did not have to talk to the officer and began to leave. The officer took appellant by the arm, whereupon appellant struggled and attempted to pull away. The officer advised appellant that he was under arrest for delaying and obstructing a public officer in the discharge of his duty. The struggle intensified and appellant started to swing at the officer. Appellant's mother had by then come out of the house, and she, together with appellant's younger brother, became involved in the struggle.

The primary issue is whether the evidence is legally sufficient to support the juvenile court's decision.

Section 148 of the Penal Code provides in part: "Every person who wilfully resists, delays, or obstructs any public officer, in the discharge or attempt to discharge any duty of his office, ... is punishable by a fine ... or by imprisonment in a county jail...."

It is settled that no violation of Penal Code section 148 can result when the public officer is performing an activity which is not lawful, since an officer does not discharge a duty of his office when he engages in unlawful conduct. (People v. Curtis (1969) 70 Cal.2d 347, 352-356, 74 Cal.Rptr. 713, 450 P.2d 33.) Whether Officer Flores was engaged in the discharge of a duty of his office, requires scrutiny of his conduct.

Did the Officer Lawfully Detain Appellant?

Appellant first contends that the officer had no lawful basis on which to restrain or attempt to restrain his freedom of movement.

Officer Flores received information from a citizen that she had been harassed and assaulted. The circumstances reasonably supported his belief that the minor was responsible. The officer observed the object which had been thrown, the complaint was patently credible despite the officer's prior experience with Mrs. Ahlstrom, and the minor departed on seeing the officer.

"A peace officer may, without a warrant, take into temporary custody a minor: (P) (a) Who is under the age of 18 years when such officer has reasonable cause for believing that such minor is a person described in Section ... 602." (Welf. & Inst.Code, § 625.) This provision eliminates, in the case of a juvenile, the otherwise applicable requirement (Pen.Code, § 836) that a misdemeanor be committed in the officer's presence before an arrest may be made without a warrant. ²

Apart from his arguable, though unexercised, right to arrest appellant, the officer also had the right to take the less intrusive measure of temporary detention for investigation. The officer possessed specific and articulable facts causing him to suspect that (1) some activity relating to crime had taken place or was occurring or about to occur, and (2) the person he intended to stop or detain was involved in that activity. (In re Tony C. (1978) 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957.)

Appellant does not seriously dispute that Officer Flores had information which, when measured objectively, justified detention. He contends, however, that Flores did not subjectively believe the facts warranted such action because he initially planned to handle the problem by phone. This contention is refuted by Flores' testimony that he believed he had cause to investigate, but he considered phoning only because he expected hostility were he to confront appellant's parents in person.

Appellant also argues that because the officer was dealing with a minor on his own property he was required to contact the parents rather than the minor. There was no such requirement here. Custodial interrogation of a minor is improper following his unhonored request to see his parents (People v. Burton (1971) 6 Cal.3d 375, 383-384, 99 Cal.Rptr. 1, 491 P.2d 793; In re Roland K. (1978) 82 Cal.App.3d 295, 147 Cal.Rptr. 96); and, even absent a request, if parents are available and wish to speak to a minor in custody, police are under a duty to advise the minor of his right to see them before interrogation can take place. (In re Patrick W. (1980) 104 Cal.App.3d 615, 163 Cal.Rptr. 848 (U.S. app. pndg., see People v. Burton, 6 Cal.3d 375, 382, 99 Cal.Rptr. 1, 491 P.2d 793).) An officer who takes a minor into custody must take immediate steps to notify the minor's parents, guardian or relative. (Welf. & Inst.Code, § 627.)

A minor's parents need not be notified at the stage the investigation had reached here. Appellant was not in custody. He was 15 years of age and manifestly willing and able to deal with the officer on his own. (See concurring opinion of Justice Jefferson in In re Patrick W., supra, 104 Cal.App.3d at pp. 619-620, 163 Cal.Rptr. 848 for a discussion of the age factor.) The officer's prior contact with the parents did not portend a positive result. Under these circumstances, failure to first contact appellant's parents did not render the detention unlawful.

The Officer's Entry Into the Yard

It is contended that the detention was invalid because effected by Officer Flores' entrance onto private property without a warrant, exigent circumstances or consent. Appellant argues that such entry on nothing more than reasonable suspicion of criminal activity violated his Fourth Amendment rights of privacy and freedom from unreasonable seizure. He adds to the ingredients the fact that he expressly ordered the officer off the property.

Appellant does not question the propriety of a warrantless investigatory detention when conducted in a public area. Its legality necessarily follows from the lawfulness of full-fledged warrantless arrests in public areas upon the existence of reasonable and probable cause. (Pen.Code, § 836. People v. Ramey (1976) 16 Cal.3d 263, 273, 127 Cal.Rptr. 629, 545 P.2d 1333.)

An arrest within a home, however, requires that a warrant first be obtained unless exigent circumstances or...