Stephen L., In re, Cr. B-002150

• Decision Date: 29 November 1984
• Docket Number: Cr. B-002150
• Citation: 162 Cal.App.3d 257,208 Cal.Rptr. 453
• Court: California Court of Appeals Court of Appeals
• Parties: In the Matter of STEPHEN L., A Person Coming Under the Juvenile Court Law, The PEOPLE of the State of California, Petitioner and Respondent, v. STEPHEN L., A Minor and Appellant.

Page 453

208 Cal.Rptr. 453

162 Cal.App.3d 257

In the Matter of STEPHEN L., A Person Coming Under the Juvenile Court Law,

The PEOPLE of the State of California, Petitioner and Respondent, v. STEPHEN L., A Minor and Appellant.

Cr. B-002150.

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

Nov. 29, 1984.

As Modified Dec. 4, 1984.

Hearing Denied Jan. 23, 1985.

[162 Cal.App.3d 258] Donna L. Groman, Los Angeles, for appellant.

John K. Van de Kamp, Atty. Gen., Carol Wendelin Pollack and John R. Gorey, Deputy Attys. Gen., for petitioner and respondent.

LEETHAM, Associate Justice. ^*

BACKGROUND SUMMARY

From the record and as summarized in the briefs of the parties, on April 28, 1983, the Los Angeles County District Attorney petitioned the juvenile court with respect to the appellant Stephen L., 15 years of age (hereinafter referred to as the Minor) under Welfare and Institutions Code section 602. The petition charged that appellant did willfully and unlawfully carry concealed upon his person a dirk and dagger, thereby violating section 12020, subdivision (a) of the Penal Code, a felony. The matter thereafter, lawfully proceeded to an adjudication hearing on July 6, 1983, where the juvenile court sustained the petition after The facts of the incident involving the Minor appear to be as follows: On March 3, 1983, at approximately 6 p.m., as it was getting dark, Police Officer John Brown and his partner, Officer De La Roca, were on patrol in full uniform. They were assigned to the West Bureau CRASH (an LAPD detail dealing with street gangs), working in the Hollywood area. At that time, the officers were in the vicinity of Lemon Grove Park because they had received complaints regarding vandalism and graffitti written on the walls of the administration building. Lemon Grove Park was a known hangout for the Clanton Street gang and Officer Brown was aware of prior violent gang activity at this park.

hearing the evidence. At the same hearing the juvenile court heard and denied a motion made on behalf of the Minor to suppress certain evidence. On October 20, 1983, the Minor was declared a ward of the court and was placed home on probation in the care of his mother. As a condition of probation the Minor was ordered to spend 15 days Ricardo M. (In re Ricardo M. (1975) 52 Cal.App.3d 744, 125 Cal.Rptr. 291.) time in juvenile hall or participate in the J.A.W.S. program. An additional 30 days in juvenile hall was stayed pursuant to Welfare and Institutions Code section 777, subdivision (e). Promptly thereafter an appeal was taken on behalf of the Minor to this court.

Officers Brown and De La Roca entered the courtyard of the park's administration building area on foot and observed "freshly painted gang type graffitti on the walls," which "was really new graffitti" within a day or two old. The graffitti included the word "Clanton," the Clanton gang logo "C14" and numerous names and nicknames of members of the gang. When the officers entered the courtyard area they saw six gang men standing in a group; four of whom (not including the Minor) were recognized as members of the Clanton Street gang. The group was standing three to four feet from a wall with graffitti on it, and no one else was in the courtyard. As soon as the officers entered the courtyard and moved toward the group, the group split into two segments and apparently attempted to leave the area in two different directions. Up until this moment, no words had been spoken. The officers detained the six youths "to make an investigation for possible vandalism." Officer Brown patted down the youths, including the Minor, looking for weapons and possibly spray paint cans; one of the considerations for which was the fact that there were six youths and only two officers. Officer Brown also testified that street gang members have been known in the past to carry weapons and felt that if they did have weapons, for safety purposes the officers would take them away from them. When Officer Brown patted down the Minor he felt a knife sheath on the right side of his belt, which was covered by his shirt and jacket. Officer Brown removed the knife from the Minor's person, which was a folding locking blade buck knife with an approximately four and one-half inch blade. Thereafter, the present proceedings were initiated.

DISCUSSION

It is asserted that the Minor here was illegally detained and that the cursory search for weapons on him was constitutionally improper. We are mystified, after a recital of the foregoing facts, just what improvement in conduct we are being urged to require of police officers in a situation such as here presented. Certainly, the patrolling of parks and recreational areas is desirable. The investigation of vandalism and persons found next to new instances of the same is an activity for which police officers are hired. Failure to cursorily search suspects for weapons in a confrontation situation in an area where gang activity and weapon usage is known from the officers' past experience would be most careless. Furthermore, it is the character of the incident and not the degree of acquaintanceship with suspects which should determine the conduct of a conscientious police officer. (Thus, it certainly should not be contended that the police People v. Superior Court (Kiefer) (1970) 3 Cal.3d 807, 91 Cal.Rptr. 729, 478 P.2d 449, teaches that "hunch" searches are improper, but Justice Mosk's opinion concedes (at p. 819, 91 Cal.Rptr. 729, 478 P.2d 449) that even a "furtive gesture" in some circumstances could constitute probable cause to justify a search. The cumulation of circumstances in this present case would have suggested dereliction of duty on the part of the police officers if they had not detained for investigation and taken the precaution of a pat-down search. The police officers here more than fulfilled the mandate of law with respect to detentions. (See People v. Aldridge (1984) 35 Cal.3d 473, 478, 198 Cal.Rptr. 538, 674 P.2d 240.) The record abounds with the required articulable facts for a detention. Furthermore, in conducting a pat-down search: "The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in his belief that his safety or that of others was in danger." (Terry v. Ohio (1968) 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889.) We think that the circumstances more than warranted the cursory search of Minor. (See People v. Suennen (1980) 114 Cal.App.3d 192, 198, 170 Cal.Rptr. 677; People v. Allen (1975) 50 Cal.App.3d 896, 900, 123 Cal.Rptr. 80.) It follows, that on discovery of the knife on Minor's person, contrary to Penal Code section 12020, subdivision (a), an offense had been committed under our law.

officers were entitled to pat down search only the four suspects they previously knew and not the Minor who was an integral part of the group found next to the vandalized wall.)

The rulings of the learned trial judge in this matter were correct. Furthermore, he displayed a truly remarkable compassion in the disposition of this matter in view of his summary on the record: "THE COURT: Well, this was a case where he had a knife, and he was involved with the Clanton gang, and two prior contacts with the police, which were not sustained, and his attitude in a probation report was not good. He blames his not going to school on the fact that his mother doesn't wake him up in time, which is a lame excuse." It is not surprising that we do not have the rote complaint of "cruel and unusual" in this case.

In concluding this matter, as our present juvenile law requires, we note that a good many thousands of dollars in public expense has been occasioned. Of course, justice can never be equated with cost. However, it might be well to equate the characteristics of the offense with its processing costs, particularly where the appeal of juvenile matters now follows the same cumbersome procedure as if a defendant had been convicted of murder. With the background and nature of the present offense, an adult defendant would most likely have been diverted to the municipal court--with expedited review, if required, and at much less expense in the Appellate Department of the Superior Court. If this case activates any overdue change of law it will have served a far more useful purpose than its characteristics entitle it.

Our attention has been called to In re Javier A. (1984) 159 Cal.App.3d 913, 206 Cal.Rptr. 386, certified for publication and filed on August 31, 1984, wherein another Division of this court in a lengthy opinion, although affirming a judgment under In re Daedler (1924) 194 Cal. 320, 228 P. 467, calls on the California Supreme Court to overturn the long-time rule that the juvenile court laws are framed to protect a minor and therefore do not require jury trial. We respectfully disagree with the views expressed in In re Javier A., supra, and point out that the logical conclusion to such reasoning is to return our society to an early and harsher era where there were no distinctions between youth and adults; processing housing and punishment to be without difference. Furthermore, the primary effect would be to exacerbate the problems of an already overloaded justice system.

The orders of the juvenile court are affirmed.

SPENCER, P.J., concurs in judgment.

L. THAXTON HANSON, Associate Justice, concurring.

I concur in the lead opinion. I also concur with the observation that the juvenile justice appellate procedures are long overdue for major reform.

While stability and continuity are desirable attributes in both areas of substantive law and procedural law, the latter area should be less resistant and more responsive to change than the former. Indeed, in the public interest, it is the duty of every member in the legal community to work for improved procedures designed to cut delay and costs.

In the spirit of constructive criticism and...