IN RE: CHARLES R.

Reset A A Font size: Print

Court of Appeal, Second District, Division 5, California.

IN RE: CHARLES R., A Person Coming Under the Juvenile Court Law. The PEOPLE of the State of California, Petitioner and Respondent, v. CHARLES R., a minor, Appellant.

Cr. 39305.

Decided: March 30, 1982

Quin Denvir, State Public Defender, by Edward H. Schulman, Deputy State Public Defender, for appellant. George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Crim. Div., S. Clark Moore, Asst. Atty. Gen., Howard J. Schwab and Beverly K. Falk, Deputy Attys. Gen., for petitioner and respondent.

Charles R. was ordered to remain a ward of the juvenile court (Welf. & Inst.Code, § 602) for committing a robbery (Pen.Code, § 211).   He was placed in the camp community placement program for a period not to exceed five years.   He now appeals contending (1) that he was unlawfully detained and arrested and that the victim's identification of him and his confession were fruits of the unlawful detention and arrest, and (2) that a referee is without jurisdiction to make a dispositional order.

At about 6:30 p. m. on November 8, 1980, as Debra Ann Jones was leaving Ralph's Market on South Central Street appellant and two other black male youths walked up behind her.   When she turned towards them, appellant pushed her and in the process reached over her and took her purse from under her left arm.   She did not resist because she was afraid.   The juveniles then ran behind an abandoned building located in front of the Nickerson Gardens housing project.   Her purse contained her wallet, her identification, makeup, two gold rings, valued at about $30.00, a check and $23 plus some change.   After the incident she telephoned the police.   She later “bought” her purse, wallet, I.D. and check from someone other than appellant.

At about 9 p. m. on November 8, 1980, Officer Teague was investigating a rape which had occurred on October 30th about a quarter of a block from a liquor store at Imperial and Broadway which was known to him to be a hangout of the “11 Deuce Crip Gang.”   At the crime scene there had been several monikers of the 11 Deuce gang members sprayed on the wall.   He approached the liquor store to interview any gang members that he happened to see at that location in an effort to learn their street name and real name, and as he was leaving his patrol car he saw appellant, wearing clothing similar to that worn by the Crips,1 coming out of the liquor store.   Appellant looked in the officers' direction and turned and quickly walked back inside.   Because of appellant's style of clothing and the fact rival gang members do not hang out in other gang members' territory, he believed that appellant was a member of the 11 Deuce Crips.   While his partner remained outside, Officer Teague followed appellant into the store.   He asked appellant his name.   Appellant did not reply but turned and looked at a woman (later identified as his mother).   At that point, the officer felt that for his own safety he should conduct a cursory pat-down of appellant.   During the pat-down he felt a hard object in appellant's right rear pants pocket which felt like the butt of a gun.   The officer reached in and removed the item, which turned out to be a padlock.

As he pulled the padlock out of appellant's pocket, a Visa credit card bearing the name of Donald K. Jones fell out.

The officer again asked appellant for his name and he replied Charles R.   Officer Teague then asked him who Donald K. Jones was and appellant said he did not know, that he had just found the card.   The officer decided to detain appellant for further investigation and took him to the southeast station where he telephoned the Visa credit card hotline and then contacted an individual at the phone number provided by them.   In response to his call, Mrs. Jones went to the station and identified the Visa card as having been taken from her in the robbery.   While he was talking to her at the detective's table, appellant was taken by other officers from the detention area in the detective room to an interview room.   Mrs. Jones happened to see appellant as he was being transported and identified him as one of the robbers.   Teague was not working with those officers that night and had not directed them to take appellant anywhere.

Officer Teague arrested appellant and later that evening, during a conversation he had with appellant, appellant, after waiving his Miranda rights, told the officer he took Mrs. Jones' purse when she left the store and also took the credit card out of the purse.

No evidence was presented on appellant's behalf.

Appellant argues that because he was illegally detained for investigative purposes, the evidence seized from his person during the detention which resulted in his arrest, as well as the victim's subsequent identification and confession, should have been suppressed.

In denying the motion to suppress, the court expressly found that “there was a reasonable ground and basis for the detention and for the pat-down and for the removal of the object that [the officer] found in the pocket and his subsequent investigation to determine the source of the card inasmuch as it was not the name of the person that had it in his possession.” 2  The court also found that there was no forcible detention until appellant turned away from Officer Teague.

 Contrary to appellant's arguments, the record shows that the officer had reasonable cause to believe that appellant was engaged in criminal activity (People v. Bower, 24 Cal.3d 638, 644, 156 Cal.Rptr. 856, 597 P.2d 115;  In re Tony C., 21 Cal.3d 888, 893, 148 Cal.Rptr. 366, 582 P.2d 957) and the circumstances justified the minimally intrusive pat-down search for the officer's safety.  (People v. Mickelson, 59 Cal.2d 448, 450–451, 30 Cal.Rptr. 18, 380 P.2d 658;  People v. Szabo, 107 Cal.App.3d 419, 430, 165 Cal.Rptr. 719;  People v. Rico, 97 Cal.App.3d 124, 132–133, 158 Cal.Rptr. 573;  see People v. Heard, 266 Cal.App.2d 747, 753–754, 72 Cal.Rptr. 374.)

The officers, who were investigating a rape which had occurred nearby, stopped the police car in front of a liquor store which was a known hangout for 11 Deuce Crip gang members, as appellant was coming out of the store.   From evidence left at the scene of the rape, Officer Teague had concluded that the perpetrators of the rape belonged to the 11 Deuce Crip gang.   Officer Teague was a member of a unit within the police department which worked particularly with gangs in the southeast area.   Appellant looked in their direction, then turned and quickly walked back inside.   The officer also noticed that appellant was wearing the distinctive clothes of the 11 Deuce Crip gang members;  that his height was “not far” from the five foot six inch to five foot ten inch description of the heights of the suspects in the rape case.   In addition, appellant was a male Negro as described.   Officer Teague followed defendant inside and asked him his name.   Appellant's response was a glance toward a woman.   The officer then performed a cursory pat-down search because he was fearful for his own safety.   It was not unreasonable under these circumstances for the officer to suspect that appellant might be carrying a weapon.  (Cf. Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 1883, 20 L.Ed.2d 889.)   The officers suspected appellant to be a member of a gang that commonly carried offensive weapons and the officer was alone in the liquor store as his partner remained outside.   Further, at the time, the officer did not know the identity of the woman toward whom appellant turned.

 While conducting the pat-down, he felt a hard object which he believed to be a gun in appellant's right rear pocket.   Although the object was small, the officer testified that he had seen automatics “approximately that size.”   Appellant claims that the officer's conclusion was “absurd”;  however, there is nothing in the record contradictory to the officer's testimony.   Under the circumstances, we cannot say his testimony was inherently improbable.

Since the credit card fell out when the officer removed the hard object, its removal did not constitute an unlawful search and seizure.  (See In re Donald L., 81 Cal.App.3d 770, 774–775, 146 Cal.Rptr. 720.)   The name on the card was not that of appellant and appellant offered no satisfactory explanation of the discrepancy in the name on the card.   The detention and patdown, being quite proper, the subsequent revelation of his identity and his confession were properly admitted into evidence.

Since the trial court's findings were supported by substantial evidence its determination is binding on appeal.  (People v. James, 19 Cal.3d 99, 107, 137 Cal.Rptr. 447, 561 P.2d 1135;  People v. Superior Court (Keithley) 13 Cal.3d 406, 410, 118 Cal.Rptr. 617, 530 P.2d 585.)

 Citing In re Perrone C., 26 Cal.3d 49, 160 Cal.Rptr. 704, 603 P.2d 1300, appellant also contends that the referee who presided at the dispositional hearing without a stipulation was without jurisdiction.   However, the Supreme Court specifically limited the application of Perrone C. to jurisdiction hearings.  (Id. at p. 57, 160 Cal.Rptr. 704, 603 P.2d 1300.)   The resolution of Perrone C. was clearly foreshadowed by the court's former opinion in Jesse W. v. Superior Court, 20 Cal.3d 893, 145 Cal.Rptr. 1, 576 P.2d 963 (Jesse W. I.).3  (Perrone C., supra, 26 Cal.3d at p. 51, 160 Cal.Rptr. 704, 603 P.2d 1300.)   In Jesse W. I., the court noted that its opinion was limited to the jurisdiction issue and juvenile court referees may continue to hear other matters such as disposition without offending constitutional limitations.  (Jesse W., supra, 20 Cal.3d at p. 899, fn. 5, 145 Cal.Rptr. 1, 576 P.2d 963.)   It was subsequently held that the decision in Jesse W. “was limited to a favorable adjudication of guilt by the referee at the jurisdictional phase of the case and would not affect an order relating solely to disposition.”  (In re Kenneth T., 87 Cal.App.3d 142, 145, 150 Cal.Rptr. 737.)   Therefore, we hold that Referee Pitts lawfully presided at the disposition hearing.

 Additionally, the Attorney General contends that appellant's precommitment credit should be recalculated.   From the record it appears that the court did not orally specify the credit to be awarded appellant for time spent in confinement prior to the disposition hearing.  (In re Eric J., 25 Cal.3d 522, 533–536, 159 Cal.Rptr. 317, 601 P.2d 549.)   However, the written order reflects credit of 63 days for time served.   Appellant was taken into custody November 8, 1980, and the disposition was held on December 18, 1980, a lapse of 41 days.   Thus it appears that the court erroneously awarded appellant conduct credits.  (In re Ricky H., 30 Cal.3d 176, 178 Cal.Rptr. 324, 636 P.2d 13.)

The disposition order is modified to provide for 41 days presentence credit only.   In all other respects, the orders are affirmed.

FOOTNOTES

1.   The distinctive dress of the 11 Deuce Crip gang members include black golf-type hats, hair nets, dark-colored jackets usually blue, Khaki pants, and white tennis shoes.

2.   The court also stated, “․ based on the officer's testimony I felt that he did have an objectively reasonable basis to suspect criminal activity based upon his background, training, and experience with the gangs in this area, having observed the monikers and graffiti in the area where the rape had taken place and being familiar with the area where that particular group hung out, seeing someone dressed in the distinctive manner of one of the gangs represented by the graffiti on the wall at the scene of the crime.  [¶] The court feels that there was a sufficient basis to warrant not a detention but to stop and to talk with him.   There was no forcible detention until such time as the minor chose to turn away and look in the direction of his mother.   At that time the officer indicated that he was fearful for his own safety.   So he determined whether or not this person was armed.   Being aware of the capability of this particular gang towards being armed and dangerous, he conducted a pat-down search.   Now, here in the light of this courtroom that is obviously a lock.   But under those circumstances to find a hard object, I am not going to substitute my judgment for the officer's judgment as to what he thought that was.  [¶] In his background he has seen automatics of that size, and in his opinion he felt that that is what that was, a gun.   He removed it to determine whether it was, in fact, a gun.   It turned out to be a padlock.   In so doing, the card fell to the ground.”

3.   Jesse W. v. Superior Court, 20 Cal.3d 893, 145 Cal.Rptr. 1, 576 P.2d 963, was vacated by the United States Supreme Court, 439 U.S. 922, 99 S.Ct. 304, 58 L.Ed.2d 315, and remanded for further consideration in light of Swisher v. Brady, 438 U.S. 204, 98 S.Ct. 2699, 57 L.Ed.2d 705.   The subsequent opinion is reported at 26 Cal.3d 41, 160 Cal.Rptr. 700, 603 P.2d 1296 (Jesse W. II).

HASTINGS, Associate Justice.

STEPHENS, Acting P. J., and ASHBY, J., concur.

Copied to clipboard