In re Richard G.

• Decision Date: 12 May 2009
• Docket Number: No. B209512.,B209512.
• Citation: 173 Cal.App.4th 1252,93 Cal. Rptr. 3d 506
• Court: California Court of Appeals
• Parties: In re RICHARD G., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. RICHARD G., Defendant and Appellant.

173 Cal.App.4th 1252

93 Cal. Rptr. 3d 506

In re RICHARD G., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. RICHARD G., Defendant and Appellant.

No. B209512.

Court of Appeals of California, Second District, Division Six.

May 12, 2009.

Lyn A. Woodward, 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, Assistant Attorney General, Paul M. Roadarmel, Jr., and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

YEGAN, Acting P. J.—

There is little room for error when a police officer responds to a disturbance call involving a firearm in a documented criminal street gang area. (See People ex rel. Totten v. Colonia Chiques (2007) 156 Cal.App.4th 31 .) As this case shows, even when a police officer is careful, he is still subject to attack. The judiciary should not "lightly second-guess" an officer's decision to conduct a "stop and frisk" in this situation. (People v. Dickey (1994) 21 Cal.App.4th 952, 957 , citing, inter alia, Terry v. Ohio (1968) 392 U.S. 1 [20 L.Ed.2d 889, 88 S.Ct. 1868].) More than 40 years ago, Presiding Justice Pierce said that police officers were entitled to protect themselves during a detention: "This is a rule of necessity to which a right even as basic as that of privacy must bow. To rule otherwise would be inhumanely to add another hazard to an already very dangerous occupation. Our zeal to fend off encroachments upon the right of privacy must be tempered by remembrance that ours is a government of laws to preserve which we require law enforcement officers—live ones. Without becoming a police state, we may still protect the policeman's status." (People v. Koelzer (1963) 222 Cal.App.2d 20, 27 .)

Richard G. appeals from the order of the juvenile court denying his motion to suppress and accepting appellant's admission that he disturbed the peace by using offensive language. (Pen. Code, § 415, subd. (3).) Appellant contends the juvenile court erred when it denied his motion to suppress because (1) the evidence was insufficient to support the detention and cursory search for weapons, and (2) the prosecution did not establish the source of the information on which the arresting officer relied to detain appellant. These contentions are without merit and, in any event, the granting of a suppression motion would not preclude the People from proving their case. We affirm.

Facts and Procedural History

Oxnard Police Officers Mora and Alva were on routine patrol in the Colonia area of Oxnard at approximately midnight on June 21, 2007. They received a radio dispatch that two males were causing a disturbance outside a residence at 133 North Juanita Street and that one of them was possibly in possession of a handgun. The police dispatcher further stated that one male was wearing a black T-shirt while the other was wearing a blue Pendleton-type jacket. They were walking toward Colonia Park, which is located across the street from the North Juanita Street residence. Earlier that week, Officer Mora had responded to another call of a daytime shooting at the same residence. The police seized two guns on that occasion.

The officers drove around the park. Within a few minutes, they saw two males and two females walking near the park. The males were wearing clothing that identically matched the description given in the radio dispatch. They radioed for "backup" and Officer Valesquez responded to their call.

Officers Mora and Alva got out of their patrol car and made contact with the group. They ordered the males to stop but they refused to do so. Because they believed one of the males might be in possession of a gun, the officers repeated their commands and told the males to sit on the ground. Appellant repeatedly refused to obey any police command. He told Officer Mora, "I'm going to fuck you up . . . ." He made repeated statements to the same effect. When Mora grabbed appellant to place him in a control hold, appellant resisted and punched Mora. Appellant was eventually handcuffed with help from other officers, but not before he caused visible injuries to Officer Mora.

Appellant filed a written motion to suppress evidence of his statements and conduct during the detention on the theory that Officer Mora lacked reasonable suspicion to detain him. He also lodged a "Harvey-Madden" objection, contending the prosecution could not establish that his detention was lawful unless it identified the source of the original report or called the police dispatcher to testify that it had been received. (People v. Harvey (1958) 156 Cal.App.2d 516 ; People v. Madden (1970) 2 Cal.3d 1017 [88 Cal.Rptr. 171, 471 P.2d 971].) The People attempted to meet this objection with an unsworn and unauthenticated police dispatcher's printout showing the date and time of the telephone call. The trial court sustained the hearsay objection to that document but permitted the officers to describe the radio dispatch they heard and responded to.

After the trial court denied the motion to suppress, appellant admitted the misdemeanor allegation that he disturbed the peace by using offensive language toward Officer Mora. Allegations that he resisted, obstructed or delayed a peace officer in violation of Penal Code section 148, subdivision (a)(1), and that he resisted an executive officer in violation of Penal Code section 69 were dismissed.

Anonymous Tip Supports the Detention and Cursory Search for Weapons

(1) A police officer may stop and detain a person if the officer knows of ". . . 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." (In re Tony C. (1978) 21 Cal.3d 888, 893 [148 Cal.Rptr. 366, 582 P.2d 957].) The officer must have a "reasonable suspicion" that person to be detained has violated the law. (People v. Dolly (2007) 40 Cal.4th 458, 463 [53 Cal.Rptr.3d 803, 150 P.3d 693].)

Here, information from an anonymous telephone call supplied the basis for appellant's detention. Relying on Florida v. J. L. (2000) 529 U.S. 266 [146 L.Ed.2d 254, 120 S.Ct. 1375], appellant contends the telephone call did not include enough information to create a "reasonable suspicion" that he was involved in a crime. In that case, the United States Supreme Court invalidated a detention because it was based only on an anonymous telephone report that a person matching a general description was waiting at a specific bus stop and was carrying a concealed weapon. According to the Supreme Court, the report was insufficiently detailed because the caller did not explain how he knew about the concealed weapon or supply any other information demonstrating that his information was reliable. (Id. at p. 273.)

More recently, in Dolly, our California Supreme Court distinguished Florida v. J. L. In Dolly, an anonymous caller, who reported that he had just been assaulted with a firearm, provided a detailed description of the assailant, his car and his location. Within five minutes, a police officer located the car and driver described in the telephone call. A handgun was concealed under the front passenger seat. (People v. Dolly, supra, 40 Cal.4th at p. 462.) Our Supreme Court upheld the driver's detention, reasoning that officers properly acted on the anonymous report because it described "a grave and immediate risk not only to the caller but also to anyone nearby." (Id. at p. 465.) The court found this report more reliable than the one described in Florida v. J. L., because it was "a firsthand, contemporaneous description of the crime as well as an accurate and complete description of the perpetrator and his location, the details of which were confirmed within minutes by the police when they arrived." (People v. Dolly, supra, 40 Cal.4th at p. 468.)

(2) In the presenting case, an anonymous caller gave a contemporaneous report of a late night disturbance involving a firearm that occurred in front of a specific residence located in known gang territory. The caller described the individuals involved and their clothing, and reported that they were walking toward Colonia Park. The officers knew this park was frequented by members of the Colonia Chiques street gang. Only days before, officers investigated a shooting at the same residence and seized two firearms. In our view, the anonymous telephone report at issue here is every bit as reliable as the report described in Dolly, if not more so. This dictates affirmance of the trial court's finding that the officer did not violate appellant's Fourth Amendment rights.¹

(3) In these types of cases, the courts are called upon to strike a balance between a citizen's Fourth Amendment rights and the rights of society in general to be free from people who create disturbances with firearms. We conclude the trial court struck the correct balance when it expressly found that there was no Fourth Amendment violation. We also point out what seems to be obvious: in all likelihood, appellant would have been detained for a few minutes and then sent on his way had he not displayed such a "bad attitude." If appellant had cooperated with a brief detention and patdown, the officer would have found that he was unarmed—the crucial factor driving the detention—and allowed him to leave. Instead, appellant belligerently refused to comply with any police request or command, escalating an otherwise benign encounter into a physical fight. He is lucky that neither he nor Officer Mora was seriously injured.

Harvey-Madden

(4) Appellant contends the trial court erred when it denied the motion to suppress because the prosecution did not comply with the "Harvey-Madden rule." As a result, he contends, the prosecution did not carry its burden to prove his detention was supported by a...