IN RE: HENRY S. (1981)

Henry S., a minor, appeals from an order committing him to the Sacramento County Boys Ranch, entered by the Superior Court of Sacramento County (sitting as a juvenile court), after it had accepted a transfer of the proceedings from Yolo County. Appellant admitted the jurisdictional facts of the juvenile petition, and now appeals in order to assert that all of the evidence against him should have been suppressed. We disagree and affirm the order of commitment.

I

The record demonstrates that at approximately 12:45 a. m. on the morning of December 3, 1976, appellant and his two companions, Jimmy Kimbrough and Robert Teresinski, entered a convenience store in Woodland and robbed the clerk on duty. Kimbrough and Teresinski were adults at the time; they are not involved in this appeal.

On that same morning, between 2:30 and 3:00 a. m., Officer Rocha of the Dixon police force was patrolling the streets of Dixon. He passed a maroon Chevrolet heading in the opposite direction, and observed what he believed to be two juveniles riding therein. Rocha was unable to observe the driver due to a glare on the windshield, but felt that he too might be a juvenile.

Dixon has a curfew ordinance which makes it illegal for minors to “loiter, idle, wander, stroll, or play in or upon the public streets” and other public places between 10 p. m. and 5 a. m.¹ Dixon is a small town (population of 5,450 as of Jan. 1, 1977—see Cal. Statistical Abstract, p. 13), and the hour at which Rocha encountered appellant and his companions is normally one of very light traffic. Rocha is familiar with most vehicles normally present in Dixon at that hour. He did not recognize the Chevrolet or the suspected juveniles.

When Rocha first encountered the Chevrolet it was proceeding at about 20 to 25 miles per hour through a business district. All the stores and bars in that area were closed. Dixon does not have a drive-in motion picture theatre, and its one theatre is open only on the weekends, hence was closed on the night of the encounter. Rocha was aware of no other recreational activities from which juveniles could be returning at that time of night. He concluded that a curfew violation might be taking place.

Customarily, when Rocha suspects a curfew violation he normally stops the offender, advises him of the curfew, and sends him home. He decided to follow this procedure so he turned and followed the Chevrolet and activated his red light. The vehicle did not respond at first and as Rocha followed he noticed the driver reach for the glove compartment and the front seat passenger seat reach under the seat. The vehicle then responded to the officer's red light.

It has been Rocha's experience that a high incidence of drinking is involved in curfew violations. In such cases the suspects commonly attempt to hide their alcohol under the seat, and upon stopping the driver will often jump from the car and approach the officer's car. The motions of the driver and passenger prior to stopping made Rocha suspect drinking, and also made him apprehensive of their possible possession of a weapon. When the car stopped the driver exited and came to Rocha between the two vehicles.

The driver gave Rocha his operator's license which established that he was not a juvenile. The officer then approached the suspect vehicle, looked inside, and observed a pool of liquid leaking from under the driver's seat and a beer wrapper with one beer under the passenger's legs. He had the two passengers exit the vehicle, and at that moment observed a holster. Upon questioning, the driver indicated that a pistol was under the seat, and the officer had him retrieve it.

A subsequent search of the car revealed a number of items, including the money taken in the earlier robbery of the convenience market. The victim of the robbery identified appellant as one of the robbers, and subsequently identified appellant in court at the hearing on appellant's motion to suppress.

Based upon the evidence discovered in the vehicle and the subsequent identification of the occupants by the robbery victim, Teresinski and Kimbrough were arrested and charged with robbery. Appellant was referred to the juvenile authorities of Sacramento County. It is the practice of the Sacramento County Probation Department to conduct an initial interview with a minor thought to have committed a crime in order to determine whether a petition should be filed under the Welfare and Institutions Code. Appellant (who was not under detention) was summoned by letter to appear for such an interview.

On January 20, 1977, approximately seven weeks after the robbery and arrest, appellant appeared with his mother for the interview. They were advised of their rights and the mother stated she had no objection to appellant talking with the probation officer. The probation officer read the police report concerning the robbery and arrest and asked appellant if he wished to make a statement. Appellant waived his Miranda rights and confessed to the robbery. Since the offense was serious the matter was referred back to the Yolo County juvenile authorities.

A petition was filed in the Superior Court of Yolo County, sitting as a juvenile court, alleging that appellant was a person coming within the provisions of Welfare and Institutions Code section 602. A hearing was ordered to determine whether appellant could benefit from treatment as a juvenile. The juvenile court referee held that even though appellant had attained age 18 only days after the offense and the crime was serious, other factors supported retention of the matter in juvenile court; it was so ordered.

While the juvenile proceedings were pending, the Superior Court of Yolo County heard a motion to suppress filed by Teresinski in the proceedings against him. The court ruled that the search of the vehicle was illegal and ordered the evidence suppressed. Counsel for appellant then filed motions to set aside the juvenile petition and to suppress the evidence against him. The parties stipulated that the motions be determined upon the transcript of the Teresinski preliminary hearing, together with additional evidence to be presented. At the hearing Rocha appeared and testified more fully than at the Teresinski hearing as to the circumstances which led him to make the initial vehicle stop. In addition, the robbery victim identified appellant and evidence concerning appellant's confession was introduced.

The juvenile court referee carefully considered the evidence and decisional law, and concluded that the initial stop was lawful. He noted the action of the superior court in the Teresinski proceeding and stated his concern that appellant was not being given the same “break” as the adult offenders; he also noted however that the People were entitled to his independent judgment.

Appellant applied for a rehearing. On such rehearing a judge of the superior court upheld the referee's order. The court noted the the evidentiary record in the juvenile proceeding contains matter additional to that in the Teresinski proceeding, and held that the evidence should not be suppressed, using the beyond a reasonable doubt and to a moral certainty standard.

Appellant admitted the jurisdictional facts of the petition and those facts were found to be true. The matter was transferred to Sacramento County, wherein appellant resides. Thereafter the order of commitment from which appellant appeals was entered.

II

It is suggested that the appeal herein is controlled by the opinion of the California Supreme Court in the People's appeal from the dismissal of the charges against Teresinski. (People v. Teresinski (1980) 26 Cal.3d 457, 162 Cal.Rptr. 44, 605 P.2d 874, judgment vacated by the United States Supreme Court in California v. Teresinski, 449 U.S. 914, 101 S.Ct. 311, 66 L.Ed.2d 143.) Therein, in a four to three decision, the court affirmed the dismissal of the charges. We do not find that case controlling, however.

It has long been the rule that rulings in proceedings prior to trial do not have res judicata or collateral estoppel effect on other proceedings. (See People v. Van Eyk (1961) 56 Cal.2d 471, 477, 15 Cal.Rptr. 150, 364 P.2d 326; People v. Dykes (1966) 243 Cal.App.2d 572, 576-577, 52 Cal.Rptr. 537; People v. Joseph (1957) 153 Cal.App.2d 548, 551-552, 314 P.2d 1004.) In People v. Gephart (1979) 93 Cal.App.3d 989, 156 Cal.Rptr. 489, this court carefully considered the legislative history of Penal Code section 1538.5, the decisional background upon which it was enacted, the purposes of res judicata and collateral estoppel, and other relevant matters, and concluded that res judicata and collateral estoppel do not apply to rulings on a pre-trial motion to suppress evidence. (93 Cal.App.3d at pp. 997-1000, 156 Cal.Rptr. 489.) The juvenile court referee thus correctly noted that the People were entitled to his independent evaluation of the issue.

The trial court herein ruled that the initial stop was lawful, whereas in Teresinski the trial court had ruled that the initial stop was unlawful. In hearing a motion to suppress the trial court acts as a trier of fact; and on appeal from its decision all presumptions favor the proper and valid exercise of the power. (People v. Lawler (1973) 9 Cal.3d 156, 160, 107 Cal.Rptr. 13, 507 P.2d 621.) We are thus faced here with a different appellate question than that in Teresinski. There the Supreme Court was required to presume that the trial court found all facts and inferences supportive of a finding of illegality, while here we are compelled to engage in the opposite presumption.

We find further distinction between this case and the situation in Teresinski in the factual record presented. The preliminary hearing transcript of Teresinski, considered pursuant to stipulation herein, reveals that the prosecutor there seemingly failed to understand that the motion to suppress would turn on the question of the legality of the initial stop. Officer Rocha was not fully questioned concerning his reasons for stopping the vehicle and thus on appeal it appeared simply that he made the stop because there were juveniles in the car after 10:00 p. m. (See Teresinski, supra, 26 Cal.3d at p. 460, 162 Cal.Rptr. 44, 605 P.2d 874.) In contrast, it appears here that Rocha had additional reasons for making the initial stop. The time of the stop was later than it had appeared in Teresinski.² Appellant and his friends were in a business district despite the fact that all the businesses were closed. Rocha was well acquainted with the town and knew that there was no operating theatre, recreation, business or other legitimate activity to which or from which the juveniles could be going or returning. Moreover, Rocha was familiar with the town to a degree that he would recognize most people or vehicles which would pass through it at that time of night, yet he failed to recognize either appellant and his companions or their vehicle.

The Supreme Court found the situation in Teresinski to be controlled by the decision in People v. Horton (1971) 14 Cal.App.3d 930, at page 933, 92 Cal.Rptr. 666. In that case the court of appeal stated: “However, driving along city streets, even at 1:15 in the morning, is not ‘loitering.’ (Citations omitted.) For all that Officer Winfrey knew, appellant could have been driving his two young passengers home from a theatre or other authorized place of amusement.” The circumstances of Horton are dissimilar to the situation we are considering. In that case the hour was earlier; one person in the car was known not to be a juvenile; the officer had no information which would have precluded the possibility that the juveniles were being driven home from some legitimate activity; the curfew ordinance was more narrow than that involved here; and, significantly, the officer did not make the stop in reliance upon a curfew violation. He made the stop solely because the adult did not appear old enough to be the juveniles' parent or guardian. (See In re Francis W. (1974) 42 Cal.App.3d 892, 900-901, 117 Cal.Rptr. 277.)

In In re Francis W., supra, the same court of appeal which rendered the decision in Horton upheld a curfew stop in a situation substantially similar to this one. In that case a Merced police officer stopped a vehicle driving along a city street because he believed it to contain three juveniles, and the time (2:50 a. m.) was after curfew. The court distinguished Horton because the officer had subjectively relied upon a curfew violation in making the stop and because the curfew involved was broader than the one in Horton. (42 Cal.App.3d at pp. 900-901, 117 Cal.Rptr. 277.)

We find the instant appeal to be controlled by in In re Francis W., not by Horton. The ordinance involved herein is broader than that in Horton, which prohibited only “loitering.” Further, Rocha subjectively relied upon the curfew ordinance in making the stop and he believed that all the occupants of the car were juveniles. Moreover, there is even more compelling justification for the stop involved in this case than Francis W., for here the officer knew that there were no open businesses in the business district in which he encountered the suspected juveniles, and further knew that there was no legitimate activity with which they could be associated at that time of night, factors which were not found in Francis W. We conclude that the trier of fact could justifiably find that the officer's suspicion that the curfew ordinance was being violated was reasonable under the circumstances.

We further reject any contention that Officer Rocha exhibited a fatal misunderstanding of the curfew law. At the hearing in this case he testified that the purpose of the ordinance was “Specifically, to keep them from all being on the street at all hours, to keep [juveniles] them from hanging out on the corners.” He further made it clear that he understood that the ordinance did not prohibit a juvenile from traveling on a street going to or coming from a place at which they had a lawful right to be. It is thus clear, as the trial court implicitly found, that the officer did not understand the ordinance to prohibit a minor from simply being on the streets after 10:00 p. m.³

Appellant has not contended that the actions of Rocha were illegal after the initial stop, and such a contention would be without merit. In view of our conclusion that the finding of the trial court that the initial stop was lawful is supported by the evidence and the law, it is unnecessary for us to consider whether appellant's confession and the in-court identification of him by the victim are attenuated so as to be independently admissible into evidence.

The order of commitment is affirmed.⁴

I dissent. The majority holds constitutional the exact same search which our Supreme Court has ruled unconstitutional (People v. Teresinski (1980) 26 Cal.3d 457, 162 Cal.Rptr. 44, 605 P.2d 874). The same search is involved in Teresinski and the case at bench. It is true, of course, that Teresinski does not have res judicata or collateral estoppel effect. It is also true, as the majority explains, that the Teresinski trial judge and the juvenile judge in the case at bench ruled differently. We do not deal with a normal matter of appellate review; we deal with a search on which the Supreme Court has ruled. The prosecuting attorney in the case at bench correctly stated at the beginning of the juvenile's hearing that “[t]here were certain questions I wish to ask Officer Rocha. However, they were covered for the most part in the preliminary hearing transcript, and all I'm really asking is that the preliminary hearing would be given the same weight as the testimony that I would draw from him today.” (Emphasis added.) While Officer Rocha's testimony was not an exact duplicate as to each word or expression of his testimony at the preliminary examination, it was, not surprisingly, a reiteration of that evidence. The “factual record” is substantially the same; none of the details mentioned by the majority can fairly be said to be material with respect to the Supreme Courts ruling that: “a police officer, lacking an objectively reasonable basis for suspecting criminal activity, detained defendant's car.” (Teresinski, supra, at p. 460, 162 Cal.Rptr. 44, 605 P.2d 874.)

An appellate court is bound to follow the teaching of the Supreme Court even when res judicata or collateral estoppel do not control. Here, the majority follows the teaching of the Teresinski dissent. This lack of certainty in the law is a disservice to the administration of justice.

FOOTNOTES

1.  The ordinance reads: “Sec. 16.2 Curfew —Minors not to be in public after 10:00 P.M.; exceptions.“It shall be unlawful for any person under the age of eighteen years to loiter, idle, wander, stroll, or play in or upon the public streets, highways, roads, alleys, parks, playgrounds, or other public grounds, public places and public buildings, places of amusement and eating places, vacant lots, or other unsupervised places, between the hours of 10:00 P.M. and 5:00 A.M. of the day immediately following; provided, however, that the provisions of this section do not apply when the person is accompanied by his parents, guardian, or other adult person having the care and custody of the person, or when the person is returning directly home from a meeting, entertainment, recreational activity or dance, or when the person is going directly to or returning directly from work.“A person under eighteen years may obtain food in a cafe after a meeting, entertainment, recreational activity, dance or work after the hour of 10:00 P.M. but must vacate the premises immediately after consuming the food served and proceed directly home.” (Ord. No. 6, 1950, § 1.)“Sec. 16.4 Curfew—Minors under eighteen violating curfew regulations.“Any person under the age of eighteen years violating the provisions of section 16.2 shall be guilty of a misdemeanor and shall be dealt with in accordance with juvenile court law and procedure.” (Ord. No. 6, 1950, § 3.)

2.  The time of the stop was not clarified in the Teresinski record. Officer Rocha was asked whether he was on duty at 2 a. m. When the prosecutor began to ask whether he made “any stops between 2:00 o'clock in the morning—” the officer interrupted to answer yes. From this the Supreme Court inferred that the stop was at 2 a. m. In the record here it is shown that the stop was in fact later at night, perhaps as late as 3 a. m.

3.  In People v. Teresinski, supra, 26 Cal.3d at 463, 162 Cal.Rptr. 44, 605 P.2d 874, the Supreme Court noted that Officer Rocha was apparently operating under the understanding that Dixon had a blanket curfew ordinance and held that a reading of the ordinance and reference to People v. Horton, supra, should have dispelled this belief. It was established at the hearing here that Rocha did not believe that Dixon had a blanket curfew. We note that a reading of the ordinance and reference to the more recent Francis W. case, support Rocha's understanding of the ordinance and his decision to stop the suspect vehicle.

4.  With reference to the dissenting position, one comment alone in our opinion suffices to demonstrate its fallacy. Were the circumstances reversed, i.e., if this case (Henry S.) had earlier been upheld by the Supreme Court, thus affirming the trial court's finding of probable cause, no one would support a later claim against Mr. Teresinski that as to him the issue was foreclosed because of any “teaching” of the high court. A different result in the context of this case is in no way justified.

PARAS, Associate Justice.

REGAN, Acting P. J., concurs. REYNOSO, Associate Justice, dissenting.Hearing denied; BIRD, C.J., dissenting.