Filed 4/23/15 P. v. Jones CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE


THE PEOPLE,                                                          B255728

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. GA090986)
         v.

MICHAEL ANTHONY JONES,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County. Jared D.
Moses, Judge. Reversed and remanded with directions.
         Rachel Varnell, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney
General, Steven D. Matthews, Supervising Deputy Attorney General and Timothy M.
Weiner, Deputy Attorney General for Plaintiff and Respondent.
                                                 _______________
       Appellant Michael A. Jones was convicted, following a jury trial, of one count of
possession of a controlled substance in violation of Health and Safety Code section
11350, subdivision (a) and one count of possession of a smoking device in violation of
Health and Safety Code section 11364.1, subdivision (a)(1). The trial court found true
the allegations that appellant had suffered three prior serious or violent felony convictions
within the meaning Penal Code sections 667, subdivisions (b) through (i) and 1170.12
(the Three Strikes law) and had served six prison terms within the meaning of section
667.5, subdivision (b). The trial court sentenced appellant to the midterm of two years,
doubled to four years pursuant to the Three Strikes law, plus four consecutive one-year
terms pursuant to section 667.5.
       Appellant appeals from the judgment of conviction, contending the trial court
erred in denying his motion to suppress evidence made pursuant to Penal Code section
1538.5. We agree, and reverse the judgment of conviction.


                                           Facts1
       On September 17, 2013, at about 1:30 a.m., Los Angeles County Sheriff’s Deputy
Jeffery Johnsen and his partner Deputy Klinski were on patrol in Monrovia when they
observed appellant walking down the middle turn lane of Mountain Avenue. At that
location, Mountain Avenue is a three-lane street, with one lane for northbound traffic,
one lane for southbound traffic and a middle lane for turning. Basically, the area was a
residential one.
       Appellant turned off Mountain Avenue and onto Meridian Street. Deputy Johnsen
believed that appellant was in “[v]iolation of walking in the middle of the road, 21956, I
believe of the Vehicle Code.” Deputy Johnsen and his partner “stopped him for the
subsequent violation and were going to warn or cite him.”



1
      These facts are taken from the hearing on appellant’s motion to suppress, held on
December 4, 2013. After appellant’s motion was denied, appellant was tried by a jury.
Neither party points to any additional relevant facts introduced at trial.

                                             2
          The two deputies pulled up behind appellant in their marked patrol car and “asked
him—or told him to stop.” Deputy Klinski “yelled” at appellant from the window of the
patrol car. Deputy Johnsen did not remember what his partner yelled. Whatever he
yelled caused appellant to stop. Appellant “stopped right where he was.” The deputies
then directed appellant to come to the patrol car. Appellant complied.
          When appellant reached the patrol car, Deputy Johnsen first asked appellant if he
was on probation or parole. When appellant replied that he was not, Deputy Johnsen
asked if he had anything illegal on him. Appellant replied that he had pipes. Deputy
Johnsen then asked if the pipes were for marijuana. Appellant stated they were for crack.
Deputy Johnsen then asked for permission to search appellant. Appellant consented. The
search uncovered the pipes and a brown bottle containing 18 white pills. Based on the
numbers and markings on the pills, Deputy Johnsen determined that the pills were
hydrocodone. The deputies arrested appellant.


                                           Discussion
          Appellant contends the trial court erred in denying his motion to suppress evidence
made pursuant to Penal Code section 1538.5. He contends that his initial detention was
not valid, and his subsequent consent was not voluntary.
          While a defendant has the burden of filing a motion asserting the absence of a
warrant, “[i]t is the People’s burden to justify a warrantless search. (Vale v. Louisiana
(1970) 399 U.S. 30, 34; People v. Johnson (2006) 38 Cal.4th 717, 723; People v.
Williams (1999) 20 Cal.4th 119, 127.)” (People v. Schmitz (2012) 55 Cal.4th 909, 915
fn. 4.)
          The standard of review of a trial court’s ruling on a motion to suppress is well
established. We defer 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, we exercise our
independent judgment. (People v. Glaser (1995) 11 Cal.4th 354, 362.)



                                                3
       “When ruling on a suppression motion, ‘the power to judge the credibility of the
witnesses, resolve any conflicts in the testimony, weigh the evidence and draw factual
inferences, is vested in the trial court.’ [Citations.] On appeal, the facts must be
reviewed in the light most favorable to the judgment, and the trial court’s finding must be
upheld if supported by substantial evidence.” (People v. Jones (1989) 209 Cal.App.3d
725, 730-731.)


       a. Ruling
       The court ruled: “The officer’s testimony was that the location was—I believe he
did testify was residential, as I recall on questioning from [appellant’s counsel], which
would technically place this outside of . . . 21956. So it appears there may be a tentative
Fourth Amendment violation here.”2 The court continued: “But Herring [v. United
States (2009) 555 U.S. 135], in my view, really radically changed the way we litigate
motions to suppress. And then even if there is a Fourth Amendment violation, if the
officer’s conduct is, at worse, negligent because they’re relying on perhaps a Vehicle
Code section that does not technically fit the circumstances, exclusion is still not the
remedy.” The court found: “In this case, at worse, the officer was negligent in his
interpretation of the statute that he felt that the defendant was violating.”


       b. Mistake of law
       Vehicle Code3 section 21956, subdivision (a), provides: “No pedestrian may walk
upon any roadway outside of a business or residence district otherwise than close to his


2
       Thus, the trial court made no finding that Deputy Johnsen believed the area was
not residential, much less a finding that the character of the area was ambiguous and any
mistake as to its nature by Deputy Johnsen would be reasonable. The prosecutor did not
argue in the trial court that Deputy Johnsen made a mistake of fact and the Attorney
General does not make such an argument on appeal. We see no evidence that Deputy
Johnsen made a mistake of fact about the character of the area, and no basis to conclude
that such a mistake would have been reasonable.
3
       All further statutory references are to the Vehicle Code unless otherwise specified.

                                               4
or her left-hand edge of the roadway.” As our colleagues in the Third District Court of
Appeal have explained, “Since section 21956, subdivision (a), only restricts pedestrians
from walking on roadways outside of business or residential districts, the logical
implication (taking the obverse of this section) is that inside a business or residential
district, a pedestrian may indeed walk in the middle of the road.” (People v. Cox (2008)
168 Cal.App.4th 702, 708-709, italics omitted.)
       The trial court expressly found that Deputy Johnsen testified that the location was
residential, and impliedly found that the area was residential. We defer to the trial court’s
findings of fact if supported by substantial evidence. (People v. Glaser, supra, 11
Cal.4th at p. 362.) Deputy Johnson’s testimony on cross-examination is substantial
evidence to support the trial court’s finding. Appellant’s counsel asked, “So basically,
it’s all residential houses; right? People - - basically there are no businesses, it’s where
people live?” The deputy responded, “Yes, ma’am.” Even assuming for the sake of
argument that this testimony was in conflict with other aspects of Deputy Johnsen’s
testimony, or that this testimony was capable of supporting more than one inference,
“‘the power to . . . resolve any conflicts in the testimony’” and to “‘draw factual
inferences, is vested in the trial court.’” (People v. Jones, supra, 209 Cal.App.3d at pp.
730-731.) Thus, Deputy Johnsen was mistaken in believing that appellant was violating
section 21956 by walking in the middle of the road in a residential district.4
       In their briefing on appeal, appellant contended, and respondent agreed, that the
good faith exception to the exclusionary rule was not available when an officer makes a
pure mistake of law. At the time of briefing, the parties were correct.


4
       We note that although the People had the burden of proving that the warrantless
search of appellant was justified, the prosecutor did not ask Deputy Johnson any
questions on direct examination about the residential or business character of the area
where appellant was observed, did not ask any questions on redirect examination about
the character of the area to clarify any possible ambiguity in the deputy’s testimony and
did not argue that the area was outside a residential or business district and so appellant
had violated section 21956. On appeal, the Attorney General does not argue that the area
was outside a business or residential district and so appellant violated section 21956.

                                              5
         California courts “on strong policy grounds have generally refused to excuse a
police officer’s mistake of law.” (People v. Teresinski (1982) 30 Cal.3d 822, 831; People
v. Reyes (2011) 196 Cal.App.4th 856 [having only a single rear license plate was not a
violation of law and “‘An officer cannot have a reasonable belief that a violation of the
law occurred when the acts to which an officer points as supporting probable cause are
not prohibited by law. [¶] . . . A stop based on a subjective belief that a law has been
broken, when no violation actually occurred, is not objectively reasonable’”]; People v.
Carmona (2011) 195 Cal.App.4th 1385; People v. Cox, supra, 168 Cal.App.4th at pp.
709-711.)
         During the pendency of this appeal, the United States Supreme Court issued its
opinion in Heien v. North Carolina (2014) ___ U.S. ___ [135 S.Ct. 530] (Heien). The
court held that a “reasonable” mistake of law can give rise to the reasonable suspicion
necessary to uphold the seizure under the Fourth Amendment. However, the majority
opinion provides little guidance on what constitutes a “reasonable” mistake of law. The
court noted the reality that “an officer may ‘suddenly confront’ a situation in the field as
to which the application of a statute is unclear—however clear it may later become.”
(Heien, supra, ___ U.S. at p. __ [135 S.Ct. at p. 533].) The court added, “The Fourth
Amendment tolerates only reasonable mistakes, and those mistakes . . . must be
objectively reasonable. We do not examine the subjective understanding of the particular
officer involved. Cf. Whren v. United States, 517 U.S. 806, 813 (1996). And the inquiry
is not as forgiving as the one employed in the distinct context of deciding whether an
officer is entitled to qualified immunity for a constitutional or statutory violation. Thus,
an officer can gain no Fourth Amendment advantage through a sloppy study of the laws
he is duty-bound to enforce.” (Heien, supra, ___ U.S. at p. ___ [135 S.Ct. at pp. 539-
540].)
         The United States Supreme Court found “little difficulty” in concluding the
officer’s mistake in Heien was reasonable. (Heien, supra, ___ U.S. at p. ___ [135 S.Ct.
at p. 533].) The officer stopped Heien for having only a working left brake light; the
right brake light did not illuminate. (Ibid.) The officer believed that the North Carolina


                                              6
Vehicle Code required a vehicle to have two working brake lights. The North Carolina
Court of Appeal subsequently held that only one working brake light was required.
(Heien, supra, ___ U.S. at p. ___ [135 S.Ct. at pp. 533-534].)
       The United States Supreme Court noted that the “statute at issue refers to ‘a stop
lamp,’ suggesting the need for only a single working brake light, [but] it also provides
that ‘[t]he stop lamp may be incorporated into a unit with one or more other rear lamps’”
and “another subsection of the same provision required that vehicles ‘have all originally
equipped rear lamps or the equivalent in good working order.’” (Heien, supra, ___ U.S.
at p. ___ [135 S.Ct. at p. 533].) The court also noted that the “‘stop lamp’ provision . . .
had never been previously construed by North Carolina’s appellate courts. [Citation.] It
was thus objectively reasonable for an officer” to think that Heien’s faulty right brake
light was a violation of North Carolina law. (Heien, supra, ___ U.S. at p. ___ [135 S.Ct.
at p. 541].)
       The situation before us is markedly different from the situation in Heien. Section
21956 has been construed by a California appellate court, in People v. Cox, supra, 168
Cal.App.4th 702. The meaning of the statute has been clear since that case was decided,
in 2009. Further, as the court in Cox pointed out, even in 1943 “it was well-settled law
that “‘pedestrians have a right to travel anywhere upon a public highway in a residence
district.”’ Going back still farther, our Supreme Court has held that this right of a
pedestrian also extends to city streets.” (Id. at p. 709 [citing Raymond v. Hill (1914) 168
Cal. 473, 482 in omitted fn.].) For these reasons, we conclude that Deputy Johnsen’s
mistake was not a reasonable one.5


       5
         We note that the court in People v. Cox, supra, 168 Cal.App.4th 702, held that
the officers in that case “failed to comprehend the California Vehicle Code, something
they are reasonably expected to know. (See People v. McNeil [(2002) supra,] 96
Cal.App.4th [1302,] 1309.) Section 21956, subdivision (a) was enacted over 40 years
ago. [Citation.] This is more than enough time for any California police department to
analyze and properly instruct its officers that pedestrians can legally walk in the roadway
in a business or residential district.” (People v. Cox, supra, 168 Cal.App.4th at pp. 710-
711 [fn. omitted].)

                                              7
       c. Detention
       Respondent contends that even if Deputy Johnsen was mistaken about the law, the
deputy did not seize appellant and so appellant’s subsequent consent to search was
voluntary. The trial court impliedly found that a detention occurred. We also find that a
detention occurred.
       “A seizure of a person implicating the Fourth Amendment occurs ‘“when [a
police] officer, by means of physical force or show of authority, has in some way
restrained the liberty of a citizen.”’ (Florida v. Bostick (1991) 501 U.S. 429, 434, 111
S.Ct. 2382, 115 L.Ed.2d 389.) An officer must either ‘intentionally appl[y] hands-on,
physical restraint’ or ‘initiate a show of authority, to which the objectively reasonable
innocent person would feel compelled to submit, and to which the suspect actually does
submit for reasons solely attributable to the police show of authority.’” (People v.
Cartwright (1999) 72 Cal.App.4th 1362, 1367, italics omitted.)
       A detention is a seizure of an individual which is strictly limited in duration,
scope, and purpose, and which may be undertaken by the police if there is an articulable
suspicion that a person has committed or is about to commit a crime. (In re James D.
(1987) 43 Cal.3d. 903.)
       “‘Unlike a detention, a consensual encounter between a police officer and an
individual does not implicate the Fourth Amendment. It is well established that law
enforcement officers may approach someone on the street or in another public place and
converse if the person is willing to do so’ without having any ‘articulable suspicion of
criminal activity.’” (People v. Rivera (2007) 41 Cal.4th 304, 309.) ‘[T]he crucial test is
whether . . . the police conduct would “have communicated to a reasonable person that he
was not at liberty to ignore the police presence and go about his business.”’ (Florida v.
Bostick, at p. 437, 111 S.Ct. 2382.) This test ‘is an objective one: not whether the citizen
perceived that he was being ordered to restrict his movement, but whether the officer’s
words and actions would have conveyed that to a reasonable person.’ (California v.
Hodari D. (1991) 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690.)” (In re J.G.
(2014) 228 Cal.App.4th 402, 409.)


                                              8
       “Examples of circumstances that might indicate a seizure, even when the person
did not attempt to leave,” include “use of language or tone of voice indicating that
compliance with the officer’s request might be compelled.” (United States v. Mendenhall
(1980) 446 U.S. 544, 554.)
       Here, the two deputies pulled up behind appellant in their marked patrol car and
“asked him—or told him to stop.” Deputy Johnsen’s partner “yelled” at appellant from
the window of the patrol car. Deputy Johnsen did not remember what his partner yelled.
Whatever he yelled caused appellant to stop. Appellant “stopped right where he was.”
The deputies then directed appellant to come to the patrol car. Appellant complied.
       No reasonable person would feel free to continue on his way after a police officer
yelled at him to stop, even if the yelled statement was phrased in the form of a question.
It is hard to imagine a clearer example of a situation where “the use of language or tone
of voice indicat[ed] that compliance with the officer’s request might be compelled.”
(U.S. v. Mendenhall, supra, 446 U.S. at p. 554.) The deputies then directed appellant to
come to their patrol car. This would only reinforce a reasonable person’s belief that he
was not free to continue on his way.
       When appellant reached the patrol car, nothing the deputies said would have
indicated to a reasonable person that he was free to decline to answer the officers’
questions and continue on his way. The deputies did not ask appellant how he was
feeling or if he was in any difficulty.6 They did not ask appellant if he would speak with




6
        A detention is permissible if it is an exercise of an officer’s community caretaking
function. (See People v. Madrid (2008) 168 Cal.App.4th 1050, 1058 [community
caretaking exception applies when police officers “‘act[]reasonably to protect the safety
and security of persons and property’ [citation]”].) Here, the prosecutor did not attempt
to justify the warrantless search of appellant by arguing that the initial stop was justified
as an exercise of Deputy Johnson’s community caretaking functions. The key factor in
determining the reasonableness of a community caretaking detention is the “nature and
level of distress exhibited” by the person stopped. (Id. at p. 1059.) Deputy Johnson’s
testimony contains no indication that appellant was exhibiting any level of distress at all,
and nothing in Deputy Johnson’s questioning of appellant concerned appellant’s welfare.

                                              9
them or would be willing to answer a few questions. They first asked appellant if he was
on probation or parole, then asked other accusatory questions.


       d. Taint from any illegal seizure
       Respondent contends that even if appellant were illegally seized by the deputies,
appellant’s subsequent consent to search was voluntary.
       It is often the case that when consent to a search is given immediately following
an illegal detention, the consent is “inextricably bound up with the illegal conduct and
cannot be segregated therefrom.” (People v. Haven (1963) 59 Cal.2d 713, 719.)
However, such consent is not automatically invalid. (Wong Sun v. United States (1963)
371 U.S. 471, 487-488.) “The question is whether the evidence was obtained by the
government’s exploitation of the illegality or whether the illegality has become
attenuated so as to dissipate the taint.” (People v. Boyer (2006) 38 Cal.4th 412, 448-449.)
       The prosecution bears the burden of proof on issues on attenuation. (People v.
Boyer, supra, 38 Cal.4th at p. 449.) Here, these issues were not litigated below. “[W]e
may nonetheless resolve such issues on appeal, even if not explicitly litigated below, if
their factual bases are fully set forth in the record. [Citations.]” (Ibid.) Since respondent
urges us to decide these issues on appeal, we presume that the record is complete.
       In determining whether the taint has been dissipated, courts should consider the
“temporal proximity of the [illegal conduct and the discovery of the evidence,] the
presence of intervening circumstances, and particularly, the purpose and flagrancy of the
official misconduct.” (Brown v. Illinois (1975) 422 U.S. 590, 603-604.) Intervening
circumstances can include fleeing the scene or resisting arrest. (People v. Prendez (1971)
15 Cal.App.3d 486, 487-488 [fleeing scene]; People v. Cox, supra, 168 Cal.App.4th at
pp. 711-712 [resisting arrest].) In the case of a residence, the subsequent consent of
another resident can be an intervening circumstance. (People v. Boyer, supra, 38 Cal.4th
at pp. 449-452 [illegally detained defendant did not consent to search, but told police that
it was up to his girlfriend; girlfriend, who had remained in the residence, consented to
search several hours after defendant was taken to the police station and after she had the


                                             10
opportunity to consult with an attorney; her consent was valid and not tainted by
defendant’s illegal detention].)
       Here, appellant’s consent to search was given in very close temporal proximity to
the illegal detention. There were no intervening circumstances. Appellant did not flee
from police, resist arrest or consult with an attorney.
       Respondent contends appellant’s decision to answer the officer’s questions was an
independent act of free will which constituted an intervening circumstance, like the
defendant’s volitional acts of resisting arrest and fleeing the scene in People v. Cox,
supra, 168 Cal.App.4th 702 and People v. Prendez, supra, 15 Cal.App.3d 486.
Respondent is mistaken.
       The “‘act in fleeing is analogous to the commission of an offense subsequent to
the police conduct said to be illegal.’” (People v. Cox, 168 Cal.App.4th at p. 712, fn 10,
quoting People v. Prendez, supra, 15 Cal.App.3d at p.489.) “Normally, in a case where
evidence is uncovered following an illegal search, the search itself procures the evidence
sought to be excluded. But it would be a curious use of language to say that officers’
detention of defendant (illegal though it might have been) procured the officers’
subsequent observations of his resistance to arrest. Unlike tangible evidence that is
uncovered when police conduct an unlawful search, defendant’s reaction here to being
detained was not inevitable. . . .” (Id. at p. 712.)
       Appellant’s act of answering questions was not analogous to an illegal act. The
officers’ questions to appellant were designed to, and did procure answers. Appellant’s
decision to answer was not an intervening circumstance.
       Respondent also contends appellant “volunteered information,” which showed free
will and independent action. Appellant did not volunteer information. He answered
specific questions asked by the officers, and appears to have done so as tersely as
possible, giving one or two word answers. Appellant’s act of responding to the officer’s
questions shows that he was submitting to the officer’s assertion of authority, not
exercising independent free will.



                                               11
       The People have not shown that the taint from the illegal detention of appellant
was attenuated by intervening events and have not shown that appellant’s answers and
consent to search were voluntary. Thus, the search and seizure of appellant violated his
Fourth Amendment rights.


       e. Remedy
       Although the trial court believed there was a Fourth Amendment violation, the
court believed that the officer was merely negligent in his interpretation of the statute.
The court concluded that under the reasoning of Herring, supra, 555 U.S. 135, exclusion
was not an appropriate remedy.7
       As we discuss above, as long ago as 1943, “it was well-settled law [in California]
that ‘“pedestrians have a right to travel anywhere upon a public highway in a residence
district.’”” (People v. Cox, supra, 168 Cal.App.4th at p. 709.) The statute at issue here,
section 21956, subdivision (a) was enacted in 1959. (People v. Cox, supra, 168
Cal.App.4th at pp. 710-711.) It did not represent a departure from existing law. We
agree with our colleagues in the Third District Court of Appeal that over forty years “is
more than enough time for any California police department to analyze and properly
instruct its officers that pedestrians can legally walk in the roadway in a business or
residential district.” (Id. at p. 711; see also People v. NcNeil, supra, 96 Cal.App.4th at
p. 1309 [“40 years was enough time for responsible officials of the Oakland Police




7
        As the Supreme Court noted in Heien, in previous cases such as Herring, supra,
555 U.S. 135, and Davis v. United States (2011) 564 U.S. __ [131 S.Ct. 2419], “[a]ny
consideration of the reasonableness of an officer’s mistake was . . . limited to the
separate matter of remedy.” (Heien, supra, ___ U.S. at p. ___ [135 S.Ct. at p. 10].) In
Heien, however, the Supreme Court considered the reasonableness of an officer’s mistake
to determine whether the Fourth Amendment had been violated. The court found the
mistake of law in Heien reasonable, leaving open the question of whether an
unreasonable mistake of law would in and of itself call for application of the exclusionary
rule or whether a secondary analysis of police culpability would be required to determine
the remedy. We will make such an analysis.

                                             12
Department to learn and to educate their officers in the field that the ordinance in
question was preempted by state law”].)
       Here, two deputies of the Los Angeles County Sheriff’s Department apparently
were not aware of long-standing California law permitting pedestrians to walk in the
middle of the road in a residential district. This creates a strong inference that the
Sheriff’s Department has not properly trained its deputies in the relevant law. Since this
law has been in existence in its current statutory form for more than fifty years, this
failure is more than simple negligence, and is exactly the sort of situation where
application of the exclusionary rule would have its intended deterrent effect. (See
Herring, supra, 555 U.S. at p. 144 [“the exclusionary rule serves to deter . . . recurring or
systemic negligence”].) The trial court erred in denying appellant’s motion to suppress
evidence.


                                         Disposition
       The judgment is reversed and this matter is remanded to the trial court with
directions to enter an order granting appellant’s motion to suppress evidence.
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                     GOODMAN, J.
I concur:



       MOSK, J.





        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

                                             13
Turner, P.J., Dissenting


       I respectfully dissent. In terms of issues properly before us, substantial evidence
supports the trial court’s finding that the deputies acted in a negligent non-culpable
manner. Vehicle Code1 section 21956, subdivision (a) prohibits the following, “No
pedestrian may walk upon any roadway outside of a business or residence district
otherwise than close to his or her left-hand edge of the roadway.” Putting aside the
obtusely stated language in section 21956, subdivision (a), it prohibits walking in a street
outside of a commercial or residential district. When walking outside of a business or
residence district, a pedestrian is free to walk upon a roadway close to its left hand edge.
And under specified circumstances, section 21956, subdivision (b) permits a pedestrian to
walk “close” to the right-hand edge of the roadway.
       There is substantial evidence defendant was first seen walking outside of a
residential district. Deputy Jeffrey Johnsen first saw defendant walking southbound on
Mountain. The deputies watched defendant “a minute or so” before they pulled him over.
Deputy Johnsen saw defendant walking on Mountain, which has three lanes, between
two double lines. Defendant turned and walked eastbound on Meridian. It was on
Meridian where defendant was stopped. Deputy Johnsen testified, “We stopped him for
the subsequent violation and were going to warn or cite him.” Defendant was only
stopped when he had turned from Mountain to Meridian. There was no testimony
defendant walked in the middle of Meridian, only Mountain.
       When cross-examined, Deputy Johnsen was asked whether the Mountain and
Meridian intersection is a residential area. It is these questions on cross-examination that
are directly pertinent to the nature of the area where defendant was walking in the middle
of the street. Deputy Johnsen testified: “Mountain is a highway in between two
residential areas. Meridian is in a residential area.” After that answer, the following




1
       Future statutory references are to the Vehicle Code.
occurred: “Q. So, basically, it’s all residential houses; right? People -- basically, there
are no businesses, it’s where people live?” [¶] A. Yes, ma’am.”
       This testimony raises two issues. To begin with, Deputy Johnsen expressly
testified that the area on Mountain was “between” two residential areas. Deputy
Johnsen’s answer distinguished between Mountain and Meridian. Mountain was a
highway between two residential areas. By contrast, Meridian was a street in a
residential area. There is no evidence there are any businesses on Mountain which was
between two residential areas. Under those circumstances, defendant violated section
21956, subdivision (a)—he was walking outside a residential or business district in the
middle of the street. As the Court of Appeal has explained—if one is walking “inside a
business or residential district,” section 21956, subdivision (a) has not been violated.
(People v. Cox (2008) 168 Cal.App.4th 702, 708-709, original italics.) Defendant was
not walking near or partially on the left hand side of Mountain as permitted by section
21956, subdivision (a). (Myers v. King (1969) 272 Cal.App.2d 571, 578-579.) Nor was
defendant walking near the right side of Mountain under the circumstances enumerated in
section 21956, subdivision (b). (See Kovacs v. Sturgeon (1969) 274 Cal.App.2d 478,
482; Myers v. King, supra, 272 Cal.App.2d at p. 578 & fn. 3.) Under those
circumstances, defendant could be stopped for violating section 21956, subdivision (a).
Any alleged negligent violation of defendant’s Fourth Amendment rights is irrelevant
under this view of the facts.
       In any event, Deputy Johnsen’s answer to defense counsel’s inartful question,
which begins, “Well basically. . .” can be read two ways. To begin with, his answer can
be read as clarifying that Meridian is in fact in a residential area. If that is the case, the
result is that specified in the immediately preceding paragraph. Defendant was observed
walking in a highway between two residential areas, a violation of section 21956,
subdivision (a). Another way to read the answer to the convoluted question is that
Meridian is in close proximity to the highway where defendant was walking. In other
words, it can be argued that: where defendant was walking in the middle of Mountain is
very close to where he was stopped on Meridian; that the immediate proximity of the two


                                               2
roadways meant that while walking on Mountain, one could arguably characterize the
area as residential; and defendant thus did not violate section 21956, subdivision (a).
This view of the testimony is one cloaked in ambiguity; but the two areas where
defendant was observed, on Mountain and Meridian, is arguably residential. (It bears
emphasis though that Deputy Johnsen never directly testified that Mountain was in a
residential area; only that it was between two residential areas.) Given the ambiguity of
the neighborhood’s character, under this hypothesis, the two deputies acted negligently so
as to bring this case outside the ambit of the exclusionary rule.
       Such negligent, non-culpable, conduct prohibits application of the exclusionary
rule. (Herring v. United States (2009) 555 U.S. 135, 144; see Davis v. United
States (2011) 564 U.S. __, __ [131 S.Ct. 2419, 2426-2429]; United States v. Wright (3rd
Cir. 2015) 777 F.3d 635, 638.) The Third Circuit has synthesized the controlling United
States Supreme Court authority thusly: “When law enforcement ‘exhibit[s] “deliberate,”
“reckless,” or “grossly negligent” disregard for Fourth Amendment rights, the deterrent
value of exclusion is strong and tends to outweigh the resulting costs.” Id. (quoting
Herring, 555 U.S. at 144); accord [United States v.] Katzin [(3rd. Cir. 2104)] 769 F.3d
[163,] 171. Similarly, ‘the exclusionary rule serves to deter . . . recurring or systemic
negligence.’ Herring, 555 U.S. at 144. ‘But when the police act with an objectively
reasonable good-faith belief that their conduct is lawful, or when their conduct involves
only simple, isolated negligence, the deterrence rationale loses much of its force, and
exclusion cannot pay its way.’ Davis, 131 S.Ct. at 2427-28 (citations and internal
quotation marks omitted); Herring, 555 U.S. at 137; accord [United States v.] Leon,
[(1984)] 468 U.S. [897,] 919; Katzin, 769 F.3d at 171. Indeed, the Supreme Court
recently suggested that the absence of culpability is dispositive of the deterrence
balancing test. See Davis, 131 S.Ct. at 2428-29 (‘[T]his acknowledged absence of police
culpability dooms Davis’s claim.’).” (United States v. Franz (3rd Cir. 2014) 772 F.3d
134, 145.) Here the trial court observed Deputy Johnsen’s demeanor and heard the
opaque testimony as to the nature of Mountain where defendant was walking in the



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middle of the highway. The trial court found the deputies acted merely negligently, not
with any culpability.
       I would affirm subject to modifications in the judgment.




                                  TURNER, P.J.




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