Filed 2/22/16 In re J.M. CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re J. M., a Person Coming Under the
Juvenile Court Law.


THE PEOPLE,
                                                                       G050877
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DL034305)
         v.
                                                                       OPINION
J. M.,

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Lewis W.
Clapp, Judge. Affirmed and remanded with directions.
                   Frank J. Torrano, under appointment by the Court of Appeal, for Defendant
and Appellant.
              Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant
Attorney General, Charles C. Ragland and Kimberley A. Donohue, Deputy Attorneys
General, for Plaintiff and Respondent.


                                  *           *           *


              The People filed a juvenile wardship petition against minor J. M. (Minor)
alleging one misdemeanor count of resisting, delaying, or obstructing a public officer.
(Pen. Code, § 148, subd. (a)(1).) The court found the allegations to be true and imposed
non-ward probation for six months pursuant to Welfare and Institutions Code section
725.
              On appeal, Minor contends the evidence does not support the allegations
because the officer had no reasonable suspicion to detain Minor, and thus he was not
acting in the lawful discharge of his duties. We conclude there were sufficient articulable
facts to amount to reasonable suspicion.
              Minor also contends that a probation condition prohibiting him from
visiting campuses of schools in which he is not enrolled was overbroad. We agree and
will remand with instructions to determine whether that condition is still in effect, and, if
so, whether any intervening circumstances currently justify that condition.


                                           FACTS


              The trial consisted of one witness, the arresting officer, John Charles
Gorton. Gorton is an officer with the City of Orange Police Department. On May 31,
2014, Gorton responded to a radio dispatch call of an alleged theft of muffins from a
grocery store located on Chapman Avenue, near the intersection with Tustin Street.
Gorton was informed the perpetrator was about 12 years old, Hispanic, wearing a black

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backpack, and last seen heading westbound on Chapman Avenue. Gorton was also
informed the Hispanic juvenile was with a black juvenile male on a bicycle wearing a
blue polo shirt and dark jeans. Gorton initially testified the radio dispatch call included
information that the Hispanic juvenile was male and wearing dark clothing, but after
reviewing his notes, acknowledged that he was not provided the gender or clothing of the
Hispanic juvenile.
              Gorton arrived at the scene approximately 15 minutes after receiving the
radio dispatch call. He continued driving in his marked police vehicle past the store,
westbound on Chapman Avenue. Approximately half of a mile past the store, he noticed
a group of young people walking westbound on the north side of the street (the same side
of the street as the grocery store). Gorton estimated this was about a five to 10 minute
walk from the grocery store. The group of juveniles included a black male, two female
Hispanics, and a male Hispanic who was riding a bike, wearing a black backpack, and
who appeared to be approximately 12 years old.
              Gorton pulled his vehicle within 10 feet of the juveniles to get a better
view. Minor was the Hispanic male riding the bicycle, who Gorton recognized from
prior contacts. Gorton knew Minor to be 15 years old but testified that he looked
younger than his age. Just two weeks earlier, Gorton had been in contact with Minor in
connection with a theft investigation.
              Gorton called Minor’s name and instructed him to stop. Minor looked right
at Gorton, made eye contact, and fled on his bicycle. Gorton pursued Minor on Chapman
Avenue, onto Montgomery Street, and ultimately into a private driveway behind a closed
business, all the while yelling at Minor to stop. At that point the chain came off of the
bicycle causing Minor to fall to the ground. Gorton got out of his car and pursued Minor,
who was now running away. Gorton caught up, grabbed Minor by his shirt, and dragged
him back to the police car and arrested him. When Gorton asked Minor why he ran,



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Minor said he was tired of being harassed by police. And while not necessarily relevant
to this appeal, Gorton did not find any muffins in Minor’s black backpack.
              At the close of evidence the defense made a motion to suppress all evidence
of minor’s resisting, delaying, or obstructing Gorton pursuant to Welfare & Institutions
Code section 700.1. Defense counsel summed up the motion as follows: “I don’t believe
that the People have proven that he was acting in the lawful performance of his duties.
This was an illegal detention, is what it comes down to.” The court denied the motion
and found the allegations in the petition to be true.


                                        DISCUSSION


              Minor first contends that Gorton’s detention was without reasonable
suspicion, and thus Gorton was not lawfully discharging his duties, an essential element
of resisting arrest. We disagree.
              A person who “willfully resists, delays, or obstructs any . . . peace
officer . . . in the discharge or attempt to discharge any duty of his or her office or
employment” is guilty of misdemeanor resisting arrest. (Pen. Code, § 148, subd. (a)(1).)
“However, ‘it is no crime in this state to nonviolently resist the unlawful action of police
officers.’ [Citation.] Thus, ‘[b]efore a person can be convicted of [a violation of section
148, subdivision (a)] there must be proof beyond a reasonable doubt that the officer was
acting lawfully at the time the offense against him was committed.’ [Citation.] ‘“The
rule flows from the premise that because an officer has no duty to take illegal action, he
or she is not engaged in ‘duties’ for purposes of an offense defined in such terms, if the
officer’s conduct is unlawful. . . .”’ [Citations.] ‘Under California law, an officer is not
lawfully performing her duties when she detains an individual without reasonable
suspicion or arrests an individual without probable cause.’” (Garcia v. Superior Court



                                               4
(2009) 177 Cal.App.4th 803, 818-819.) There is no dispute in this case that when Gorton
called Minor’s name and instructed him to stop, a detention occurred.
              “[T]he police can stop and briefly detain a person for investigative purposes
if the officer has a reasonable suspicion supported by articulable facts that criminal
activity ‘may be afoot,’ even if the officer lacks probable cause.” (United States v.
Sokolow (1989) 490 U.S. 1, 7.) “The guiding principle in determining the propriety of an
investigatory detention is ‘the reasonableness in all the circumstances of the particular
governmental invasion of a citizen’s personal security.’” (People v. Wells (2006) 38
Cal.4th 1078, 1083.) “[T]o be reasonable, the officer’s suspicion must be supported by
some specific, articulable facts that are ‘reasonably “consistent with criminal activity.”’
[Citation.] The officer’s subjective suspicion must be objectively reasonable, and ‘an
investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful,
even though the officer may be acting in complete good faith.” (Ibid.) “In making our
determination, we examine ‘the totality of the circumstances’ in each case.’” (Ibid.) The
question boils down to whether the circumstances “warranted further investigation.”
(Sokolow, at p. 10.)
              And they did. Minor matched the perpetrator described in the radio
dispatch call in the following respects: (1) apparent age, (2) wearing a black backpack,
                                                                                   1
(3) ethnicity, (4) traveling with a black juvenile, (5) the two of them had a bike, and (6)
direction of travel. Further, Minor (7) was in the vicinity of the crime (8) shortly after the
crime occurred. Further, once Gorton recognized Minor, (9) he knew Minor as someone
who had potentially been involved with past theft offenses. At minimum, these
circumstances warranted a brief detention to investigate whether Minor was involved in
the crime.


1
                Granted, the radio dispatch call described the black juvenile as riding the
bike, but it is reasonable to presume the minors could be taking turns on the bike.

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              In contending otherwise, Minor argues these facts are “vague, fragmentary,
and extremely general” (e.g. there was no information about Minor’s gender or clothing),
and also that they did not precisely match the information from the radio dispatch call
(e.g. Minor was riding the bike instead of the black male, there were two female
Hispanics with the males, the officer was not sure if the black male was wearing a blue
polo as indicated in the radio dispatch call). To be sure, the facts Gorton was aware of
are a long way from proving Minor committed the theft. But that is not the standard for
assessing reasonable suspicion. “The possibility of an innocent explanation does not
deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.
Indeed, the principal function of his investigation is to resolve that very ambiguity and
establish whether the activity is in fact legal or illegal — to ‘enable the police to quickly
determine whether they should allow the suspect to go about his business or hold him to
answer charges.’” (In re Tony C. (1978) 21 Cal.3d 888, 894 (Tony C.).) At the outset of
an investigation, the known facts often will be vague, fragmentary, and general, but when
those facts objectively suggest a reasonable possibility that the person detained was
involved in a crime, they are sufficient to justify the detention for purposes of further
investigation. That was the case here.
              In contending otherwise, Minor relies on Tony C., supra, 21 Cal.3d 888,
which we find distinguishable. There, an officer saw two black youths walking down the
street during the noon hour of a weekday. (Id. at p. 896.) The officer made a u-turn and
drove back to where he saw the youths, only this time he saw only one of the black
youths standing on the corner. (Ibid.) The officer made another u-turn, drove past the
youths again, and this time saw them both. (Ibid.) The officer pulled over and detained
the youths. (Ibid.) The articulable facts the officer gave were that it was during school
hours and the youths should have been in school, and the day before there had been
burglaries in the area perpetrated by three black males (of an unspecified age) and when



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he was unable to see the second youth on one of his passes, he thought possibly the youth
on the corner was acting as a lookout. (Id. at pp. 896-898.)
               The court held this did not amount to reasonable suspicion. The fact that
the youths were not in school was of no consequences because during the noon hour there
are ample reasons for youths to be out of school, not the least of which is to get lunch.
(Tony C., supra, 21 Cal.3d at p. 897.) With regard to the burglary, “A day-old burglary
report does not transform a residential neighborhood into a no man’s land in which any
passerby is fair game for a roving police interrogation . . . .” (Ibid.) With regard to the
youths’ race, the court rejected that basis as sufficient in itself, stating that if a person
could be detained simply on the basis of his or her race, “Such wholesale intrusion into
the privacy of a significant portion of our citizenry would be both socially intolerable and
constitutionally impermissible.” (Id. at p. 898.)
               Here, Gordon proceeded on considerably more specific information,
including Minor’s age, ethnicity, that he was wearing a black backpack, he was with a
black companion, they had a single bicycle between them, he was heading the same
direction as the perpetrator, and he was in the vicinity of the crime shortly after the crime
occurred. Accordingly, we affirm the court’s order denying the motion to suppress
evidence of minor’s obstruction of a police officer and finding that the allegations of the
petition were true.
               Minor’s second contention is that one of the probation conditions was
unreasonable; in particular: “Minor not to be on any school campus where not enrolled
without permission of the school administration.” Minor’s counsel objected to the
condition, stating, “often times a school is where on afternoons, evenings, weekends,
that’s where there’s basketball courts, that’s where there’s other activities where he might
be meeting with a friend. Is it a necessity? No. But I don’t see a relation between this
charge, which was on the street not even near a school, and saying that he needs to stay
off the school grounds.” The court overruled the objection, stating, “I’m troubled by the

                                                7
fact that there may be some drug use and sometimes minors run into other minors around
schools and they are getting access to drugs.” On appeal, Minor challenges this condition
to the extent it prohibits visiting other campuses after school hours.
              In formulating probation conditions, “[t]he court may impose and require
any and all reasonable conditions that it may determine fitting and proper to the end that
justice may be done and the reformation and rehabilitation of the ward enhanced.” (Welf.
& Inst. Code, § 730, subd. (b).) “The juvenile court has wide discretion to select
appropriate conditions . . . . [Citations.] In distinguishing between the permissible
exercise of discretion in probationary sentencing by the juvenile court and that allowed in
‘adult’ court, [the California Supreme Court has] advised that, ‘[a]lthough the goal of
both types of probation is the rehabilitation of the offender, “[j]uvenile probation is not,
as with an adult, an act of leniency in lieu of statutory punishment. . . .” [¶] In light of
this difference, a condition of probation that would be unconstitutional or otherwise
improper for an adult probationer may be permissible for a minor under the supervision
of the juvenile court. . . .’” (In re Sheena K. (2007) 40 Cal.4th 875, 889.) “While
broader than that of an adult criminal court, the juvenile court’s discretion in formulating
probation conditions is not unlimited. [Citation.] Despite the differences between the
two types of probation, it is consistently held that juvenile probation conditions must be
judged by the same three-part standard applied to adult probation conditions under
[People v. Lent (1975) 15 Cal.3d 481].” (In re D.G. (2010) 187 Cal.App.4th 47, 52.) In
particular, Lent provides, “A condition of probation will not be held invalid unless it ‘(1)
has no relationship to the crime of which the offender was convicted, (2) relates to
conduct which is not in itself criminal, and (3) requires or forbids conduct which is not
reasonably related to future criminality . . . .” (People v. Lent, supra, 15 Cal.3d at p.
486.)
              We conclude the probation condition at issue fails the Lent test. The crime
at issue had nothing to do with being on school campuses, nor is being on a school

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campus after school criminal conduct. Where the People make their stand is on the third
factor.
              First, the People argue that Minor’s history of drug use justifies the
condition, and this was the trial court’s position as well. The probation report states that
Minor admitted to regular marijuana usage. However, nothing in the probation report
suggests any connection between Minor’s drug use and being present on school campuses
after school hours. True, Minor could use drugs on a school campus, but he could also do
so in a back alley, a park, or any number of public places. The mere theoretical
possibility that one can use drugs somewhere is not a sufficient nexus to future
criminality to warrant a probation condition.
              Second, the People contend Minor has a history of criminal trespass onto a
school campus. The record, however, does not support that claim. The probation report
includes information from an interview with Minor’s mother. Mother was listing
physical injuries Minor had sustained in the past, and mentioned “he broke an ankle in
February 2014 after jumping a school fence to play handball.” We have no other
information about the incident. For all we know, Minor could have been taking a
shortcut into an otherwise open campus, or even had permission by the school
administration to play in a handball league. It is pure speculation to assume this
amounted to criminal trespass.
              Finally, the People contend Minor’s history of misbehavior in the school
where he was enrolled justifies the condition. The probation report states Minor is
enrolled at a continuation school, after voluntarily leaving Orange High for “credit
recovery.” Minor acknowledged a history of first period truancies and failing grades at
conventional school. Minor acknowledged “suspensions for possession of marijuana,
fighting, leaving class without permission and disrespecting teachers. Probation records
indicate he was also suspended for possessing a toy gun and for rummaging through a
teacher’s purse and taking her calculator.” All of these misbehaviors, however, occurred

                                              9
at the school where he was enrolled, during school hours. There is nothing to suggest he
will likely commit crimes on other campuses after school hours.
              One oddity of this appeal is that Minor’s probation was for six months
starting in October 2014, terminating in April 2015. The reply brief in this case was filed
in May 2015 with no mention of whether the probation condition is still in effect.
Accordingly, we will remand with the instructions set forth in the disposition below.


                                      DISPOSITION


              The matter is remanded with the following instructions: If Minor is still
subject to the probation condition prohibiting visitation of school campuses without the
administration’s permission, the court must reconsider Minor’s probation condition in
light of this opinion. If there are no new circumstances warranting the condition, the
court is directed to strike the condition. If new circumstances do exist, the court is
directed to exercise its discretion to determine whether such circumstances warrant the
condition. In all other respects, the judgment is affirmed.




                                                  IKOLA, J.

WE CONCUR:



RYLAARSDAM, ACTING P. J.



MOORE, J.



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