Filed 6/8/15 Unmodified opinion attached




                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
                         IN AND FOR THE COUNTY OF SAN DIEGO
                                 APPELLATE DIVISION
THE PEOPLE,                                     )
                                                )    Appellate Division Case No.:
        Plaintiff and Respondent,
                                                )    CA256406
                                                )    Trial Court Case No.:
                                                )    M178993
         v.                                     )
                                                )
FELIPE CAMPUZANO,                               )    ORDER MODIFYING OPINION
                                                )
                                                )
        Defendant and Appellant.                )
                                                )

       The opinion filed in this matter on June 5, 2015, is modified as follows:
       1.       On page 1, as the first and second paragraphs of the opinion, please insert the
following text:
                APPEAL from the denial of defendant Felipe Campuzano’s pretrial Penal Code
       section 1538.5 motion to suppress evidence by the Superior Court, County of San Diego,
       Kenneth K. So, Judge.
                AFFIRMED.
This modification does not affect the judgment.
       IT IS SO ORDERED.
Dated ____________                                   __________________________________
                                                     GALE E. KANESHIRO
                                                     Acting Presiding Judge, Appellate Division
Filed 6/5/15 Unmodified opinion




                  TO BE PUBLISHED IN THE OFFICIAL REPORTS




                     SUPERIOR COURT OF THE STATE OF CALIFORNIA
                                      COUNTY OF SAN DIEGO
                                      APPELLATE DIVISION

THE PEOPLE,                                           Appellate Division No.: CA256406

                Plaintiff and Respondent,             Trial Court Case No.: M178993
                                                      Trial Court Location: Central Division
        v.                                                                  County Courthouse

FELIPE CAMPUZANO,                                     OPINION

                Defendant and Appellant.




                                  Factual and Procedural Background
        Subsequent to this court initially reversing the trial court on the basis that a mistake of law
could not support a reasonably suspicion under the Fourth Amendment, the United State Supreme
Court in Heien v. North Carolina (2014) __ U.S. __, 135 S. Ct. 530 held that an objectively
reasonable mistake of law can give rise to a reasonable suspicion under the Fourth Amendment. On
January 1, 2015, the Court of Appeal remanded this matter “with directions to vacate [this court’s]
opinion and judgment filed November 6, 2014, and to reconsider the matter in light of Heien v.
North Carolina (2014) __ U.S. __, [2014 WL 7010684].” On January 7, 2015, the Appellate
Division issued an Order requesting supplemental briefing, and thereafter set the matter for
rehearing on May 14, 2015. We now affirm the trial court.
       On December 17, 2013, at approximately 9:30 p.m., the defendant was straddling his
bicycle and operating it at a “very slow, walking speed” alongside of a female companion who was
walking. The couple was traveling eastbound along the 3800 block of University Avenue near the
corner of 39th Street when they were first observed by police officers. Two officers, Adam George
and Patrick Kelly, contacted and detained the defendant just before the traffic light at the
intersection of 39th Street and University Avenue because he was “riding on a bicycle in a business
district” in violation of San Diego Municipal Code subdivision (a) of section 84.09.1
       Officer Kelly told the defendant the reason for the stop; the defendant was agitated,
confrontational and belligerent. He did not follow the officer’s instructions and did not seem to
understand the reason for the stop. Officer George suspected the defendant was under the influence
of a controlled substance due to his behavior, inability to focus on the conversation, rapid speech,
and failure to understand what was going on.
        The officer testified that he handcuffed defendant because he was uncooperative and
potentially armed. While the defendant was handcuffed, the officer attempted to speak with him.
The officer had the defendant get off the bike and sit on the bumper of the patrol car while a third
officer conducted a records check. Officer George told the defendant he was stopped for the
infraction, but the defendant thought he was being stopped for a probation check. Defendant denied
being on probation or parole, but admitted that he used narcotics several years before. By this time,
Officer George had observed several objective symptoms that indicated to him that the defendant
was under the influence of a controlled substance so he decided to conduct a drug evaluation.
These objective symptoms included body tremors, speaking rapidly, being disoriented, occasional
incoherence, and an inability to focus on the conversation.


       1
         San Diego Municipal Code section 84.09 (Bicycle Riding Restricted) provides:
       (a) No person shall operate a bicycle upon any sidewalk fronting any commercial business
       establishment unless official signs are posted authorizing such use.
       (b) Any person riding or operating a bicycle on any sidewalk or right of way not open to public
       vehicular traffic shall exercise due care and shall yield the right of way to pedestrians.
       (c) No person shall operate a bicycle on any sidewalk or right of way not open to public vehicular
       traffic at a speed greater than is reasonable and prudent having due regard for pedestrian traffic and in
       no event at a speed which endangers the safety of persons or property. (Emphasis added.)



                                                          -2-
         Officer George asked the defendant to perform tests as part of a field evaluation of his
condition; the defendant agreed and submitted to field tests. The officer took a measurement of the
defendant’s pulse rate approximately five to ten minutes after the first contact with the defendant.
Based upon the defendant’s performance on these tests, the officer believed the defendant was
under the influence of a stimulant and arrested him for violating Health and Safety Code section
11550.
         The officers described the area as a business district with “no residential homes on that
block.” The officers more specifically testified that there were business establishments on the west
side of that same block and that it could “absolutely” be classified as a commercial area.
Photographs of businesses across the street and on the west side of the block were admitted into
evidence. There were no photographs showing any business(es) where the defendant was initially
seen or stopped.
         After the testimony of witnesses was completed, the hearing was continued to permit the
parties to present additional information to the court on the nature of the businesses on the block in
question. At the subsequent hearing, the parties stipulated that the alleged bicycle offense occurred
in the area depicted in the photographic exhibits submitted to the court, that is, in front of the
former business known as Lee’s Auto Repair. The photographs show that the former Lee’s Auto
Repair is a corner lot next to the intersection of University Avenue and 39th Street, surrounded by a
chain link fence with weeds growing along the fence and in the asphalt of the parking lot of that
former business. The trial court made several references to “the former Lee’s Auto Repair” while
viewing the photographs. There was no testimony as to what type of lot was to the west-side of the
former Lee’s Auto Repair or how far down the block the next commercial business establishment
was located.
         The trial court recognized that this was a case of first impression and wrestled with the
interpretation of San Diego Municipal Code section 84.09, subdivision (a). The trial court believed
the thrust of the statute was the policy to preclude bicycle riding along sidewalks where people
would be going in and out of stores. The trial court ultimately agreed with the People’s proposed
broad interpretation of the ordinance – that if there are any commercial establishments on the block,

                                                   -3-
the sidewalk of that entire block is covered by the ordinance. Based upon this expansive
interpretation of the statute and finding no prolonged detention, the trial court denied defendant’s
suppression motion.
                                              Discussion
       Statutory interpretation is subject to de novo review, and People v. Glaser (1995) 11 Cal.4th
354 explains the applicable standard of review relative to the trial court’s factual findings and the
reasonableness of a search or seizure:

                [The appellate court] defer[s] to the trial court's factual findings,
               express or implied, where supported by substantial evidence. In
               determining whether, on the facts so found, the search or seizure was
               reasonable under the Fourth Amendment, [an appellate court]
               exercise[s] independent judgment. [Citations.]

(Id. at p. 362.)
         This is a case of first impression as to the interpretation of San Diego Municipal Code

section 84.09, subdivision (a) and whether, based upon that interpretation, the stop and detention of

the defendant was reasonable. We are guided by the following rules of statutory construction:

       (1) Courts look to the Legislature's intent to effectuate a statute's purpose.
       (2) Courts give the words of a statute their usual and ordinary meaning.
       (3) A statute's plain meaning controls the court's interpretation unless the statutory words
                are ambiguous.
       (4) If the words of a statute do not themselves indicate legislative intent, courts may resolve
                ambiguities by examining the context and adopting a construction that harmonizes
                the statute internally and with related statutes.
       (5) A literal construction does not prevail if it is contrary to the apparent legislative intent.
       (6) If a statute is amenable to two alternative interpretations, courts will follow the one that
                leads to the more reasonable result.
       (7) Courts may consider legislative history, statutory purpose, and public policy to construe
                an ambiguous statute.
       (8) If a statute defining a crime or punishment is susceptible of two reasonable
                interpretations, courts will ordinarily adopt the interpretation more favorable to the
                defendant.

(People v. Arias (2008) 45 Cal.4th 169, 171.)
       The People propose an expansive reading of the statute consistent with the police officers’
interpretation of the ordinance -- that if there are any commercial establishments on the block, the


                                                  -4-
sidewalk of the entire block is covered by subdivision (a) of section 84.09. The defense proposes a
narrow interpretation and strict construction of the ordinance – that it applies only to the operation
of a bicycle upon the sidewalk directly in front of an existing commercial establishment.
         In the instant matter, the police officers saw the defendant for the first time when he was
operating a bicycle on the sidewalk in front of the former Lee’s Auto Repair lot, close to the
intersection.     The finding of the court that the photographs depict the former Lee’s Auto Repair
indicates that all parties were aware that it was no longer operating as a commercial business
establishment.
         The intended purpose of subdivision (a) of section 84.09 is to preclude bicycle traffic on
sidewalks where people are going in and out of commercial businesses. Subdivision (a) of the
ordinance must be read in conjunction with subdivisions (b) and (c), which permit the riding or
operation of a bicycle on any sidewalk not open to vehicular traffic with due care and the yielding
of the right of way to pedestrians and at a speed that is no greater than is reasonable and prudent
having due regard for pedestrian traffic. The plain meaning of subdivision (a) is that bicycle
operation is precluded only on that portion of the sidewalk2 fronting3 commercial4 business5
establishments or places that are open for the trading of commodities and/or services.
         If the City Council intended for subdivision (a) to apply to the entire block in a commercial
or business district, they could have readily and expressly included such language in the ordinance.6
Similarly, if the City Council intended that the ordinance apply to the entire block when there are
one or more businesses on the block, they could have so stated. However, the City Council chose
to limit the offense to operating a bicycle upon any portion of the sidewalk directly fronting a

         2
            Webster’s New World Dictionary defines “sidewalk” as “a path for pedestrians, usually paved, along the side
of a street.” This definition and common usage suggest the sidewalk generally extends the length of the block.
          3
            Webster’s New World Dictionary defines “front” as “…the part of something that faces forward or is
regarded as facing forward; most important side; forepart; the place or position directly before a person or thing; Archit.
A face of a building; esp., the face with the principal entrance.”
          4
            Webster’s New World Dictionary defines “commercial” as “…of or connected with commerce or trade; of or
having to do with stores, office buildings, etc. [commercial property].” The same dictionary defines commerce as “the
buying or selling or goods…; trade.”
          5
            Webster’s New World Dictionary defines “business” as “the buying and selling of commodities and services;
store, factory, etc.; …a commercial or industrial establishment; a store, factory, etc.; the trade or patronage of
customers.”
          6
            See, e.g., Vehicle Code section 22102 (U-turn in business district), which provides: “No person in a business
district shall make a U-turn, except at an intersection, or on a divided highway where an opening has been provided in
accordance with Section 21651.”

                                                           -5-
commercial business establishment. The ambiguity of subdivision (a) of section 84.09 does not
stem only from the definition of “commercial business establishment” but also from the meaning of
“sidewalk.” The words of the ordinance are clear and unambiguous, however, when read in context
along with subdivisions (b) and (c).
         This narrow interpretation of the ordinance will serve to provide police officers with clear
guidance and direction and will appropriately limit police power. Officers should not have carte
blanche to stop anyone riding a bicycle on the sidewalk of any block with a commercial business
establishment, including mixed-use blocks where residences7 and business establishments co-exist
on the same block. Similarly, there is no need to generally prevent bicycle riding on sidewalks
where a few of the buildings or lots on the block have been boarded up or are closed to all business,
or in front of residences within a block that also contains commercial business establishments.
         In the instant matter, the officers’ interpretation of San Diego Municipal Code section
84.09, subdivision (a) was a mistake of law. The focus of our inquiry is whether the officer’s
mistake of law was objectively reasonable under the facts of the case to support the reasonable
cause to stop and detain the defendant. (Heien v. North Carolina (2014) __ U.S. __ , 135 S. Ct.
530.) In this opinion of first impression on the interpretation of the municipal ordinance, we
discuss the expansive and narrow interpretations of the statute. There was no prior guidance for the
officers in interpreting the ordinance. Under the facts of this case, we find that it was objectively
reasonable for the officer to read the ordinance expansively8, giving rise to a reasonable cause to
stop and detain the defendant for a violation of San Diego Municipal Code section 84.09,
subdivision (a), an infraction. Further, there was probable cause to arrest him for that infraction.



         7
            Respondent acknowledged in oral argument that had the former Lee’s Auto Repair Shop been a residence,
there would have been no violation of the ordinance.
          8
            The trial court closely examined this ordinance and interpreted it to prohibit bicycle riding on a block that
includes any business. The fact that this court interprets the ordinance differently does not mean the trial court’s
conclusion was necessarily “wholly unreasonable” as argued by defendant. In fact, it highlights the sometimes difficult
task for lawyers and judges of determining the meaning of statutes by way of statutory construction. We do not, and
cannot, expect our police officers to be legal scholars. And as Justice Roberts stated in Heien, police officers may
indeed confront situations in the field “as to which the application of a statute is unclear – however clear it may later
become.” (Heien, supra, 135 S.Ct. at p. 539.) It is axiomatic that if an experienced judge, who is obviously legally
trained, found that defendant’s conduct at this location was prohibited by this ordinance, it was also reasonable for an
officer to so believe. However, moving forward, officers should have a clear understanding of the application of this
ordinance.

                                                           -6-
(See Atwater v. City of Lago Vista (2001) 532 U.S. 318, 354, 121 S. Ct. 1536; People v. McKay
(2002) 27 Cal. 4th 601, 607; People v. Gomez (2004) 117 Cal. App. 4th 531, 538-539.)
       Under the totality of the circumstances, there was no prolonged detention because
immediately after the stop and detention for the infraction, the officer observed the defendant’s
objective symptoms of drug intoxication and had probable cause to arrest the defendant for being
under the influence of a controlled substance.
                                             Conclusion
       Ultimately, the stop, detention, arrest and search were lawful. The pre-trial Order of the
trial court denying the pretrial suppression motion is affirmed. This matter is remanded to the trial
court for further action consistent with this Opinion.




                                              __________________________________
                                              GALE E. KANESHIRO
                                              Judge, Appellate Division


WELLS, P.J., concurring:

       I concur.

______________________________
KERRY WELLS
Presiding Judge, Appellate Division


CAMPOS, J., concurring:

       I concur.

______________________________
YVONNE E. CAMPOS
Judge, Appellate Division




                                                  -7-
San Diego Superior Court Trial Judge
Honorable Kenneth K. So
Attorney for Appellant                 Attorney for Respondent
Robert Ford, Deputy Public Defender    Shelley A. Webb, Deputy City Attorney
