People v. Turner

• Decision Date: 28 August 2013
• Docket Number: H037925
• Citation: 161 Cal.Rptr.3d 567,219 Cal.App.4th 151
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Ronald Henderson TURNER, Defendant and Appellant.

219 Cal.App.4th 151

161 Cal.Rptr.3d 567

The PEOPLE, Plaintiff and Respondent,

v.Ronald Henderson TURNER, Defendant and Appellant.

H037925

Court of Appeal, Sixth District, California.

Filed August 28, 2013

Certified For Partial Publication.^*

See 4 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Illegally Obtained Evidence, § 306 et seq.

Monterey County Superior Court, The Honorable Mark E. Hood. (Super. Ct. No. SS111816)

Jonathan B. Opet under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Rene A. Chacon, Supervising Deputy Attorney General, Bruce Ortega, Deputy Attorney General, for Plaintiff and Respondent.

Márquez, J.

After a high school football game on September 23, 2011, head coach Rafael Ward, and several other coaches, were accompanying their families to their cars for their protection because of a threat by defendant Ronald Henderson Turner, a parent of one of the players. Defendant called one of the coaches a racial slur and then said, “I'll see you after the game.” Coach Ward told Lawrence Fenton, an off-duty probation officer providing security at the game, about the threat and that defendant had said he was going to carry out his threat after the game. A short time later, Ward told Officer Fenton that he (Ward) had learned from his aunt (who had heard it from an acquaintance of defendant) that defendant “had a gun on him.” Officer Fenton called Salinas police for backup. His partner who was with him, Steve Hinze (also an off-duty probation officer), located defendant and (with the police) detained him at or next to the parking lot outside the stadium. Defendant was handcuffed at gunpoint while officers determined whether he was armed. After admitting to a police officer that he had a gun, the police located a loaded revolver concealed on his person, and he was arrested.

After the denial of defendant's motion to suppress evidence pursuant to Penal Code section 1538.5, he pleaded no contest to possession of a firearm in a school zone.¹ The court suspended defendant's sentence and placed him on felony probation under various terms and conditions, including the condition that he serve 250 days in county jail.

Defendant challenges the court's denial of his suppression motion. He asserts that the officers based their conclusion that he was armed on unsubstantiated hearsay from an unknown source, and that this was, in essence, the kind of anonymous tip that the United States Supreme Court held in Florida v. J.L. (2000) 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (J.L.) could not support an investigative stop. He makes several arguments, including (1) he was subjected to a de facto arrest without the officers' having probable cause at the time to believe he had committed a crime; and (2) even if there were no arrest, his detention was unjustified because the officers had no specific articulable facts to reasonably suspect that he was involved in illegal activity.

We conclude in the published portion of this opinion that the suppression motion was properly denied. Based upon the totality of the circumstances, (1) the officers' actions to determine whether defendant was armed were reasonably necessary for their protection and did not result in his de facto arrest; and (2) the officers had sufficient articulable facts to support their reasonable suspicion that defendant had committed a felony—namely, possession of a firearm in a school zone. Therefore, the investigative stop was constitutionally permissible. In the unpublished portion of this opinion, we reject defendant's claim for additional conduct credits under the latest amendment to section 4019, but agree that defendant's challenge to two probation conditions (involving possession and consumption of drugs and alcohol, and possession of firearms) has merit. Accordingly, we will order the probation conditions modified to include a requirement of defendant's actual knowledge of the possession and/or use of the specified items. We will affirm the order of probation as modified.

FACTS

A football game at Everett Alvarez High School in Salinas took place on the evening of September 23, 2011, between approximately 7:00 or 7:30 and 10:15 p.m. Rafael Ward and Anthony Stewart were two of the coaches on the team for which defendant's son played.² Ward testified that “there was a negative vibe [among the crowd] in general” during the game. Near halftime, one of the players had his leg broken, and the “negative vibe” became more intense.³ At one point, defendant approached Ward on the field while he was talking to defendant's son. At that moment, defendant's son was angry and very upset with another coach. Defendant told Ward, “ ‘Coach, I was the one that told him to take a knee.’ ” Ward and defendant shook hands as defendant left the field; defendant did not threaten Ward But Stewart told Ward that defendant had threatened him (Stewart). Stewart was upset and said that defendant “called him a ‘bitch-ass [racial slur.] I'll see you after the game.’ ”

When the game concluded, a number of coaches walked their families to their cars because of security concerns. According to Ward, people in the crowd “came up to Coach Stewart and said, ‘Hey, they said they're going to wait for you in the parking lot.’ ” Ward assumed that “ ‘they’ ” referred to defendant, who had threatened Stewart earlier.

As Ward was walking out of the stadium, his aunt, Annie Camel, approached him. She asked, “ ‘Hey, Ralph, what is going on with you and Spanky [defendant]?’ ” Because his aunt was “obviously worried,” Ward tried to dispel her concern. Camel then told Ward: “ ‘Well, I'm just telling you [that] you need to be careful because I heard he had a gun,’ or ‘I heard he has a gun.’ ” She said that her friend, Jeannette Smith, “ ‘said he has a gun.’ ” The school principal, Darrin Herschberger, was nearby and overheard Ward and Camel. ⁴ Herschberger asked Ward to clarify who it was who had a gun, and Ward responded that they were referring to defendant.

Monterey County Probation Officers Fenton and Hinze were hired by the high school to provide additional security at the football game. (They wore shirts with badges, and carried service weapons.) After the game, Herschberger instructed Officer Fenton to go to the parking lot with Officer Hinze because one or more people in the crowd had threatened one of the coaches. While Officers Fenton and Hinze were together in the parking lot, Officer Fenton spoke to Ward. Officer Fenton testified that he “asked [Ward] ... what was going on. He told me that a parent had come up to them during the game because he was upset about something that one of the coaches had said or done and threatened ‘to take care of it on the outs’ is the way it was said to me. At which point that's why the coaches had come out because they were concerned about their families getting hurt.” Ward told Officer Fenton that the parent who had made the threat was the father of one of the players, Turner. Ward walked off and then came back and told Officer Fenton that “he had heard [that defendant] had a gun on him.” Officer Fenton asked Ward how he knew this; Ward responded that “his aunt knew someone who knew [defendant] and said he had a gun on him.”

Officer Fenton, in Officer Hinze's presence, then called the Salinas Police Department, indicating “that we had received a report of a person at the school with a gun” and requested “additional units to ... provide cover and let us contact that person safely.” Officer Fenton also obtained a description of defendant from a school official.

Officer Hinze testified that he had been with Officer Fenton and Principal Herschberger in the parking lot after the game; Officer Hinze was “about an arm's[-]length away or less” from Officer Fenton during this time. Officer Hinze described the situation of the crowd moving to get to their cars as “a little bit more chaotic than usual.” Officer Fenton told him that there had been an incident during the game when a player was injured; there was “a possible threat”; and someone might have a gun. Officer Hinze did not know the specifics of the threat; only that “[i]t was something [that] was going to be taken care of in the parking lot ...” Officer Hinze was provided with defendant's name as the person potentially having a gun; a school supervisor then radioed a physical description of defendant to the officer.

Officer Hinze observed six or seven people, including defendant, near a dumpster at the edge of the parking lot near the corner of Nantucket and Independence Streets. The officers had encountered this same group in the same location before the game. They were “standing ... off to the side looking a little intimidating,” and the coaches were escorting their families to the vicinity of the group. There were beer cans next to the group and “there was concern that this [was] supposedly the group that might [have made] a threat ...” Approximately one minute after the arrival of the first marked police car in the parking lot, and as Officer Hinze received a physical description of defendant over the radio, he observed defendant—from a distance of about 45 feet—break away from the group and walk off campus.

Officer Hinze then shone his flashlight on defendant, identified himself as “ ‘Probation,’ ” drew his service weapon, and directed defendant to put up his hands.⁵ Officer Jordan White arrived—having responded to a police dispatch indicating that there was a man with a gun at the Everett Alvarez High School football game—and ordered defendant to the ground. Another police officer held defendant at gunpoint while Officer White approached and handcuffed him. Officer White asked defendant if he was carrying any weapons; defendant responded that he had a gun in his front pocket. Officer White reached into defendant's pocket and...