Filed 2/25/14 Modified and certified for publication 3/26/14 (order attached)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  FOURTH APPELLATE DISTRICT

                                             DIVISION THREE


In re S.F., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                                  G048087
    Plaintiff and Respondent,
                                                                  (Super. Ct. No. DL041983)
        v.
                                                                  OPINION
S.F.,

    Defendant and Appellant.



                 Appeal from an order of the Superior Court of Orange County,
Nick A. Dourbetas, Judge. Reversed.
                 Charles R. Khoury, Jr., under appointment by the Court of Appeal, for
Defendant and Appellant.
                 Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood, Amanda E. Casillas and Andrew Mestman, Deputy
Attorneys General, for Plaintiff and Respondent.
                                       INTRODUCTION
              In February 2012, a one-count petition was filed to declare S.F. a ward of
the juvenile court. The petition alleged that, in December 2011, S.F., who was 17 years
of age at the time, unlawfully possessed marijuana for sale in violation of Health and
Safety Code section 11359 (count 1).
              S.F. appeals from the dispositional order sustaining the allegations of
count 1 and declaring him to be a ward of the court under Welfare and Institutions Code
section 602. He argues the juvenile court erred by denying his motion to suppress
evidence obtained in a warrantless search of his bedroom. We agree. We conclude S.F.
was arrested without probable cause for violating Penal Code section 594.2,
                                   1
subdivision (a) (section 594.2(a)), and the evidence obtained from the search of his
bedroom constituted fruit of the poisonous tree. Without the evidence obtained from the
unlawful search of S.F.’s bedroom, the true finding on the allegations of count 1 cannot
be upheld. Accordingly, we reverse the dispositional order.


                                           FACTS
              The facts are taken from the evidence presented at the evidentiary hearing
on S.F.’s motion to suppress, conducted in April 2012.
              On December 17, 2011, Orange Police Officer Kurt Lawson, who was on
patrol with Officer Moss, saw S.F. and another minor (Minor D.) running southbound
across the eastbound lanes of Katella Avenue. S.F. and Minor D. were not using a
crosswalk. Officer Lawson stopped S.F. and Minor D. for jaywalking.


 1
    Section 594.2(a) states: “Every person who possesses a masonry or glass drill bit, a
carbide drill bit, a glass cutter, a grinding stone, an awl, a chisel, a carbide scribe, an
aerosol paint container, a felt tip marker, or any other marking substance with the intent
to commit vandalism or graffiti, is guilty of a misdemeanor.”

                                              2
              Officer Lawson asked S.F. if he had anything illegal on him. S.F. said he
had a “streaker,” which is an oil-based marker commonly used as a graffiti tool, and
started to reach into his pocket to remove it. Officer Lawson did not know whether S.F.
was carrying any weapons and told him not to reach into his pocket. From S.F.’s left
trouser pocket, Officer Lawson removed a solid black marker. When Officer Lawson
asked about the marker, S.F. replied that “he knew it was illegal to have and that people
use them to vandalize property.”
              S.F. and Minor D. were placed under arrest, S.F. was handcuffed, and both
were taken in the patrol car to their respective homes. En route, Officer Lawson asked
S.F. if he had anything illegal in his bedroom. S.F. said he did. Officer Lawson did not
say he intended to search S.F.’s bedroom.
              Officers Lawson and Moss first drove to Minor D.’s home, which was
searched for 20 to 30 minutes while Lawson and S.F. stayed in the patrol car. Officers
Lawson and Moss then drove to S.F.’s home. City of Orange Police Officer Rene
Guerrero, who had been called to assist as a Spanish translator, arrived at S.F.’s home. A
police inspector named Valdez also arrived at S.F.’s home.
              Officers Lawson, Moss, Guerrero, and Valdez together with S.F.
approached the front door of S.F.’s home. Officer Guerrero knocked on the front door
and asked S.F.’s father (Father) for permission to enter the home. Father opened the door
                                      2
and allowed the four officers to enter. Once inside, Officer Guerrero explained to Father
why the police officers were there and told him that S.F. had told one of the police
officers there were illegal items in his room. Officer Guerrero asked Father for consent




 2
   S.F. testified he cracked open the door to his home just enough so he could call to
Father, but Officers Lawson and Moss walked inside before he had the chance to do so.
According to S.F., Officer Guerrero had not arrived when Officers Lawson and Moss
walked into the home.

                                             3
to search S.F.’s room to retrieve any illegal items. Father told S.F. to open his room.
                                                                                   3
After asking Father if he “had to,” S.F. walked to his room and opened the door.
              In S.F.’s bedroom, the officers found marijuana, graffiti tools, and over
$1,200 in cash.
              At some point, S.F.’s mother (Mother) asked Officer Guerrero, “don’t we
have the right to tell them not to come in?” Officer Guerrero testified his usual response
to such a question would be that “their cooperation was needed, and we did not have a
right to go in there without their consent.’” He did not recall what he had said to Mother.
S.F.’s sister testified she heard Officer Guerrero respond to Mother’s question by saying,
“it would be better for you guys to let us in now.”
                               THE MOTION TO SUPPRESS
              Pursuant to Welfare and Institutions Code section 700.1, S.F. moved to
suppress the evidence obtained as a result of the search of his bedroom. Following an
evidentiary hearing, the evidence which we summarized in the prior section, the juvenile
court denied the motion to suppress. The court found (1) S.F. was lawfully detained for
jaywalking; (2) he was searched lawfully as a search incident to arrest; (3) he was
lawfully arrested for possession of a streaker; (4) the testimony of Officer Guerrero
established the police officers knocked on the front door of S.F.’s home and were granted
consent to enter; (5) Father gave the officers “implied consent” to search S.F.’s bedroom;
(6) Mother did question whether the officers could search S.F.’s bedroom; (7) although
S.F.’s sister testified that Officer Guerrero responded to Mother’s question by saying, “it
would be better for you guys to let us in now,” the sister did not hear the entire exchange;
and (8) S.F. was not credible in his testimony that he felt he had no choice but to allow
the police officers to search his bedroom.

 3
    S.F. testified the police officers did not ask Father for permission to search his
bedroom but asked him directly for the key. Believing he had “no choice,” S.F. unlocked
his bedroom door.

                                             4
              After the court denied the motion to suppress, S.F. admitted the allegations
of count 1, and the court found him suitable for the deferred entry of judgment program.
In February 2013, the court terminated S.F.’s participation in that program and found the
allegations of count 1 true beyond a reasonable doubt, found the offense to be a felony
with a maximum term of confinement of three years, and declared S.F. to be a ward of
the court under Welfare and Institutions Code section 602.


                                        DISCUSSION
                                             I.
                                   Standard of Review
              “‘The standard of appellate 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. Maury (2003) 30 Cal.4th 342, 384.) In
considering a motion to suppress evidence, the trial court “is vested with the power to
judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the
evidence and draw factual inferences in deciding whether a search is constitutionally
unreasonable. [Citation.]” (People v. Woods (1999) 21 Cal.4th 668, 673.)
                                             II.
                                     Unlawful Arrest
              We will assume for sake of argument that Officers Lawson and Moss
lawfully detained S.F. for jaywalking. We conclude, however, those officers did not have
probable cause to arrest S.F. for violating section 594.2(a).
              “In order to comply with the law, an officer must have probable cause
before making an arrest.” (In re J.G. (2010) 188 Cal.App.4th 1501, 1505, citing
Dunaway v. New York (1979) 442 U.S. 200, 209.) The California Supreme Court has

                                              5
held that probable cause exists “when the facts known to the arresting officer would lead
a person of ordinary care and prudence to entertain an honest and strong suspicion that
the person arrested is guilty of a crime.” (People v. Price (1991) 1 Cal.4th 324, 410.)
“Probable cause must be viewed in the totality of the circumstances, not based on any
isolated event.” (In re J.G., supra, at p. 1506.) “Arrests which are made without
probable cause ‘in the hope that something might turn up’ are unlawful.” (Ibid., quoting
Brown v. Illinois (1975) 422 U.S. 590, 605.)
              Under section 594.2(a), possession of “a felt tip marker, or any other
marking substance with the intent to commit vandalism or graffiti” is a misdemeanor.
(Italics added.) There is no question that an oil-based marker or streaker was found on
S.F. and that an oil-based marker is a felt tip marker or other marking substance within
the meaning of section 594.2(a). But under section 594.2(a), possession of a marker or
other marking substance in itself is not unlawful: Only possession with the intent to
commit vandalism or graffiti is a misdemeanor.
              Intent usually must be inferred from the facts and circumstances shown by
the evidence. (People v. Lindberg (2008) 45 Cal.4th 1, 27; People v. White (1969) 71
Cal.2d 80, 83.) In this case, no evidence was presented at the suppression hearing to
support a finding that Officers Lawson and Moss could reasonably infer S.F. possessed
the streaker with the intent to commit vandalism or graffiti. S.F. and Minor D. were
detained only for jaywalking. No evidence was presented that graffiti or vandalism
recently had been committed in the vicinity. No evidence was presented that S.F. or
Minor D. was about to commit vandalism or graffiti. No evidence was presented that
                                                                                        4
S.F. had ever committed vandalism or graffiti or was a participant in a tagging crew.



 4
    Officer Lawson testified that S.F. had been arrested previously with “another tagger”
for possession of “vandalism tools.” The juvenile court struck that testimony as
irrelevant, and the Attorney General does not challenge that ruling.

                                               6
              The Attorney General argues a trier of fact reasonably could infer intent
because when asked by Officer Lawson if he had anything illegal, S.F. said he had a
streaker. According to the Attorney General, Officer Lawson had probable cause to
arrest S.F. “at the very moment that [S.F.] stated that he was in possession of an illegal
item, a streaker.” As we have emphasized, possession of a streaker in itself is not
unlawful. Although S.F. knew that streakers were used for vandalism, he did not say that
he used them for that purpose. No evidence was presented that S.F., who was 17 years
old at the time, understood the meaning of section 594.2(a), in particular, that it made
possession of the streaker unlawful only with the intent to commit vandalism or graffiti.
Without such evidence, and with no other facts or circumstances from which a reasonable
inference of intent could be drawn, Officers Lawson and Moss could not “entertain an
honest and strong suspicion that [S.F. was] guilty of a crime.” (People v. Price, supra, 1
Cal.4th at p. 410.)
              While no reported opinion addresses the intent requirement of
section 594.2(a), cases dealing with loitering laws are instructive on the issue of probable
cause. In People v. Superior Court (Caswell) (1988) 46 Cal.3d 381, 388 (Caswell), the
California Supreme Court addressed the intent requirement of Penal Code section 647,
subdivision (d), which makes it a misdemeanor to loiter in or about any toilet open to the
public for the purpose of engaging in or soliciting any lewd, lascivious, or unlawful
conduct. Section 647, subdivision (d), like section 594.2(a), defines a crime in terms of a
noncriminal act coupled with a specific intent. (See Caswell, supra, at p. 397.)
              The defendants in Caswell challenged Penal Code section 647,
subdivision (d) on the ground it was unconstitutionally vague. (Caswell, supra, 46
Cal.3d at p. 388.) In adopting guidelines to permit nonarbitrary enforcement of
section 647, subdivision (d), the court addressed the nature and quantum of evidence
necessary to give rise to probable cause to believe someone is in violation of the statute.
The court described the type of conduct supporting probable cause to believe the

                                              7
defendant violated section 647, subdivision (d): “[A]n officer may personally know an
individual and may be aware that the individual has repeatedly solicited or committed
lewd acts at the same location in the past. Under such circumstances, if the officer
observes the individual linger suspiciously in the restroom for an inordinately long period
of time, he might properly infer that the suspect did not have an innocent intent. In other
cases, a police officer may have information from a reliable informant that a particular
individual has disclosed his intent to frequent a particular public restroom to attempt to
solicit acts in the restroom; in that situation too, the officer may well have probable cause
to infer the suspect’s intent even if the suspect has not yet committed indecent exposure
or an actual solicitation. Similarly, complaints by citizens who have used a certain
restroom that an individual was lingering inside engaging in suggestive conduct—not
amounting to an actual solicitation or indecent exposure—may legitimately give rise to a
reasonable inference that the individual harbors the illicit intent.” (Caswell, supra, at
pp. 395-396, fn. omitted.)
              In addition, two cases addressing the intent requirement in other loitering
statutes are instructive. In People v. Frazier (1970) 11 Cal.App.3d 174 (Frazier), three
defendants had been convicted of violating Penal Code former section 653g, which
prohibited loitering in or about the area of a public school. To pass constitutional muster,
former section 653g had been construed to include an intent requirement—i.e., proof the
defendant loitered with the intent to commit a crime should the opportunity arise.
(Frazier, supra, at pp. 182-183.) Proof of the defendant’s intent could be inferred from
the circumstances. (Id. at p. 183.) The evidence in Frazier showed that three hot dog
stands within a block of a public high school had become a magnet for large numbers of
juveniles and adults, who would congregate there to gamble, fight, drink, disturb the
peace, or take drugs. (Id. at pp. 177-178.) This conduct prompted numerous complaints
from school officials and nearby residents. (Id. at p. 178.)



                                              8
              Two of the defendants were unemployed and had a history of being in or
around the school grounds without reason and had been warned to leave the area.
(Frazier, supra, 11 Cal.App.3d at pp. 183-184.) Both had been present near the hot dog
stands while gambling was taking place. (Id. at pp. 183, 184.) Just before the arrests,
one of the defendants was 10 feet from, and possibly taking part in, gambling activity,
and was playing his car radio loudly enough to disturb the peace. (Id. at p. 183.) After
being arrested, he twice tried to escape. (Ibid.) On appeal from his conviction, the Court
of Appeal held the evidence was sufficient to show the defendant loitered with the intent
to commit several crimes, including gambling, disturbing the peace, and resisting arrest.
(Id. at pp. 183-184.)
              When the second defendant was arrested, he was near or taking part in
gambling. He twice escaped from the arresting officers. (Frazier, supra, 11 Cal.App.3d
at p. 184.) The third defendant had a history of being in the area around the hot dog
stands and near the illegal activity; however, when he was arrested he was not near, or
engaging in, any illegal activity. (Id. at pp. 179, 184.) Instead, he was standing with a
group of minors “doing nothing.” (Id. at p. 182.) The Court of Appeal reversed that
defendant’s conviction on the ground the evidence was insufficient to support a finding
of the required intent. (Id. at p. 184.)
              In In re Daniel G. (2004) 120 Cal.App.4th 824, 828, 832-833 (Daniel G.), a
minor allegedly violated Los Angeles County Code section 13.44.010, which prohibits
members of criminal street gangs and their associates from loitering with the intent to
publicize their dominance of an area. The arresting officer had seen the minor standing
and talking with another gang member. (Daniel G., supra, at p. 829.) The officer knew
of statements by gang members that “‘there would be trouble’” if other gangs came into
the area. (Id. at p. 830.) The officer warned the minor to leave or be arrested. (Ibid.)
When the minor did not leave, the officer arrested him for “‘“gang loitering.”’” (Ibid.)



                                             9
              The Court of Appeal reversed the order adjudging the minor to be a ward of
the court for committing gang loitering because no evidence was presented of intent. The
arresting officer’s testimony, the court reasoned, amounted to “no more than . . . :
because Minor belonged to [the gang], and because [the gang] members often intimidated
others and publicized their dominance of the area, Minor’s mere presence at the location
was enough to show that Minor shared that intent on that occasion.” (Daniel G., supra,
120 Cal.App.4th at p. 835.) “Although there was evidence that [the gang] members in
general had engaged in prohibited conduct, there was no evidence that Minor had ever
done so in the past. Nor was there evidence to suggest that despite the absence of past
participation, Minor was on this occasion either taking part in or was close by while other
gang members did or said anything that could lead to an inference that they had the intent
to intimidate or publicize. [The arresting officer] testified that he had not received any
reports of trouble in the area and that Minor was doing nothing more than standing on the
sidewalk talking to a fellow gang member. He did not testify that Minor . . . was dressed
in gang attire, throwing signs, or otherwise demonstrating their gang affiliation. In short,
there was no evidence that either one had done anything more which could lead to an
inference that they were intimidating others or publicizing their gang at that time.”
(Ibid.)
              The court in Daniel G. analyzed both Caswell and Frazier and concluded,
“[t]he common thread running through both Frazier and Caswell is the confluence of the
past and present conduct of a specific individual. In Frazier, all three defendants had
been spotted near the high school on past occasions either engaged in or in very close
proximity to ongoing criminal activity. In determining whether there was sufficient
evidence that the three defendants intended to look for the opportunity to commit a crime,
the convictions were sustained as to only the two defendants who were observed nearby
or in the process of committing criminal acts at the time of their arrests. [Citation.] The
defendant who was ‘doing nothing’ at the time of his arrest—who was seen simply

                                             10
standing with a group of juveniles—had his conviction reversed. In Caswell, the
Supreme Court held that evidence of an individual’s prior conduct, when coupled with
evidence of other suspicious but noncriminal conduct occurring right before the arrest,
might be enough to show the required intent to commit a lewd act. [Citation.]”
(Daniel G., supra, 120 Cal.App.4th at pp. 834-835.)
              At the suppression hearing in this case, no evidence was produced to show
that Officers Lawson and Moss knew of such a “confluence of the past and present
conduct of [S.F.]” (Daniel G., supra, 120 Cal.App.4th at p. 834) to support probable
cause to arrest him for violating section 594.2(a). S.F.’s arrest for violation of
section 594.2(a) was made without probable cause and was therefore illegal.
                                             III.
                               Fruit of the Poisonous Tree
              Because S.F.’s arrest for violation of section 594.2(a) was illegal, all
evidence obtained as a result of the arrest that was tainted “‘fruit of the poisonous tree’”
had to be suppressed. (Wong Sun v. United States (1963) 371 U.S. 471, 487-488
(Wong Sun).) In determining whether evidence is fruit of the poisonous tree, the question
is “‘whether, granting establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that illegality or instead by
means sufficiently distinguishable to be purged of the primary taint.’ [Citation.]” (Ibid.)
              Under the Wong Sun test, evidence obtained as a result of unlawful police
activity is not excluded if the connection between the evidence and unlawful activity has
become so attenuated as to remove the taint. “[T]he question before the court is whether
the chain of causation proceeding from the unlawful conduct has become so attenuated or
has been interrupted by some intervening circumstance so as to remove the ‘taint’
imposed upon that evidence by the original illegality.” (United States v. Crews (1980)
445 U.S. 463, 471.) “Relevant factors in this ‘attenuation’ analysis include the temporal
proximity of the Fourth Amendment violation to the procurement of the challenged

                                             11
evidence, the presence of intervening circumstances, and the flagrancy of the official
misconduct.” (People v. Boyer (2006) 38 Cal.4th 412, 448; see Brown v. Illinois, supra,
422 U.S. at pp. 603-604.)
                  In this case, the search of S.F.’s bedroom was the direct result of his
unlawful arrest. S.F. was detained for jaywalking in violation of Vehicle Code
section 21955—an infraction that would not in itself justify an arrest. (Veh. Code,
§ 40000.1.) S.F. was arrested, handcuffed, and placed in the police patrol car only
because he was arrested unlawfully for violating section 594.2(a). Once in the patrol car,
the officers exploited the arrest by asking S.F. if he had anything illegal at his home. The
search of S.F.’s bedroom was temporally proximate to his arrest. After arresting S.F., the
police officers first drove to Minor D.’s home, where they stayed for 20 to 30 minutes,
and then went to S.F.’s home, where they arrived 10 to 15 minutes later. From the time
S.F. was illegally arrested to the time his bedroom was searched, the chain of causation
was unbroken, and there were no intervening circumstances to remove the taint imposed
by that arrest.
                  The flagrancy and purposefulness of the police misconduct has been
regarded as the most important factor in the attenuation analysis because “‘it is directly
tied to the purpose of the exclusionary rule—deterring police misconduct.’” (People v.
Brendlin (2008) 45 Cal.4th 262, 271.) As to this factor, we cannot say the evidence at the
suppression hearing showed the police officers concocted S.F.’s arrest or acted in bad
faith as a means to search his bedroom. (See id. at pp. 272-273.) However, Officers
Lawson and Moss did not have probable cause to arrest S.F. for violating section 594.2(a)
and, after making the arrest, exploited it to search his bedroom for contraband.
                  Finally, the fruit of the poisonous tree doctrine does not require suppression
if the evidence inevitably would have been obtained by lawful means. (People v. Boyer,
supra, 38 Cal.4th at p. 448.) That is not the case here.



                                                 12
              At oral argument, counsel for S.F. argued the United States Supreme Court
opinion in Georgia v. Randolph (2006) 547 U.S. 103 supported his contention the
officers were not given valid consent to enter S.F.’s home and search his bedroom. We
granted the Attorney General leave to submit a letter brief addressing that opinion. We
have considered the letter brief but in light of our decision need not reach the issue of
consent.


                                       DISPOSITION
              The dispositional order is reversed.




                                                  FYBEL, J.

WE CONCUR:



O’LEARY, P. J.


IKOLA, J.




                                             13
Filed 3/26/14

                              CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               FOURTH APPELLATE DISTRICT

                                       DIVISION THREE


In re S.F., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
                                                         G048087
    Plaintiff and Respondent,
                                                         (Super. Ct. No. DL041983)
        v.
                                                         ORDER
S.F.,

    Defendant and Appellant.


                  Respondent filed a petition for rehearing on March 12, 2014. The petition
for rehearing is DENIED.
                  The Office of the Public Defender of the County of Sacramento has
requested that our opinion, filed on February 25, 2014, be certified for publication.
                  It appears that our opinion meets the standards set forth in California Rules
of Court, rule 8.1105(c). We therefore certify the opinion for publication. The opinion
is ordered published in the Official Reports as modified by the following order.
                  It is ordered that the opinion filed on February 25, 2014 be modified as
follows:
                  On page 12, in the first full paragraph, at the end of the second sentence,
which begins with “S.F. was detained for jaywalking,” insert footnote 5, to read:
                   5
                       In a petition for rehearing, the Attorney General
                  cites, for the first time, Vehicle Code section 40302.5
                  and argues that section gave the Officers Lawson and
                  Moss authority to place S.F. under custodial arrest for
                  jaywalking. We do not address whether or how
                  Vehicle Code section 40302.5 applies to this case
                  because the officers arrested S.F. for unlawful
                  possession of a streaker in violation of
                  section 594.2(a), not for jaywalking.
            This modification does not effect a change in the judgment.



                                                FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



IKOLA, J.




                                            2
