Filed 7/22/13 In re Alonso A. CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


In re ALONSO A., a Person Coming Under                               B242031
the Juvenile Court Law.
                                                                     (Los Angeles County
                                                                     Super. Ct. No. PJ49062)

THE PEOPLE,

         Plaintiff and Respondent,

         v.

ALONSO A.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County, Morton
Rochman, Judge. Affirmed as modified.
         Courtney M. Selan, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels and
Kimberley J. Baker-Guillemet, Deputy Attorneys General, for Plaintiff and Respondent.
                                             ____________________
       Alonso A. appeals from the order declaring him a ward of the juvenile court after
the court sustained petitions alleging he had made criminal threats and carried a
concealed dirk or dagger. He contends the evidence is insufficient his threat caused the
two victims to suffer sustained fear and the seizure of his knife was the fruit of an
unlawful detention and search. We affirm the order as modified.
                     FACTUAL AND PROCEDURAL BACKGROUND
       1. Petitions
       A petition was filed on March 13, 2012 pursuant to Welfare and Institutions Code
section 602 alleging Alonso, then 15 years old, had committed three felonies on
March 11, 2012: vandalism (Pen. Code, § 594, subd. (a), count 1) and making criminal
threats to his mother and father (Pen. Code, § 422, subd. (a), counts 2 & 3). A second
delinquency petition was filed the following day alleging Alonso had unlawfully carried a
concealed dirk or dagger (Pen. Code, § 21310) on March 3, 2012. Alonso denied the
allegations in both petitions.
       2. Jurisdiction Hearing on the March 11, 2012 Offenses
                  a. Summary of the evidence
       Alonso was arrested on March 11, 2012 following an incident at his family home.
Alonso‟s father told Los Angeles Police Officer Jose Arredondo that Alonso had been
angry and agitated that night. Alonso and his mother argued, and he began throwing
things around the apartment. This was not the first time Alonso had behaved in this way.
His father became frightened and locked himself in a room with Alonso‟s mother after
Alonso punched holes in a wall and a door. Alonso banged on the door of the room and
said to his parents, “If you don‟t open up this door, I‟m going to get my homies, my
friends, and shoot you with a 380.” He then demanded his parents give him money or he
would “trash the place.” At some point his parents telephoned the police. After Alonso
was taken into custody, Officer Arredondo overheard him telling his mother in a
telephone call, “Please help me. Don‟t tell them that I threatened you guys. I don‟t want
to go to jail.”

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       Alonso‟s father testified, because Alonso had failed to take his medication for
bipolar disorder, he was acting “a little rebellious” that night. He punched some holes in
a door and a wall and made threats typical of those he had made in the past when he had
not taken his medication. The father explained Alonso did not threaten to have him shot
by gang members although he had made that threat in the past. Alonso‟s father had not
been frightened at the time because his son never knew what he was saying when off his
medication. He and his wife had contacted police that night so Alonso could receive a
psychological assessment.
       Alonso‟s mother testified Alonso had punched holes in a wall and a door. She
recalled telling police about locking herself in a room because she was afraid of Alonso.
However, he had not threatened to have her shot by gang members.
       At the close of the People‟s evidence, Alonso‟s counsel moved to dismiss the
criminal threat allegations pursuant to Welfare and Institutions Code section 701.1,
arguing there was insufficient evidence Alonso‟s threat had caused his parents to suffer
sustained fear. The juvenile court denied the motion. Alonso neither testified nor
introduced other evidence in his defense.
              b. Juvenile court’s findings
       Following argument by counsel, the juvenile court found the vandalism and
criminal threat allegations true and declared the offenses misdemeanors pursuant to
Penal Code section 17, subdivision (b). Disposition was deferred pending adjudication of
the March 14, 2012 petition.
       3. Suppression Motion and Jurisdiction Hearing on the March 3, 2012 Offense
              a. Summary of the evidence

       Alonso‟s motion to suppress the knife recovered from his pocket was heard in
conjunction with the jurisdiction hearing on the March 3, 2012 offense. Los Angeles
Police Officer Chris Edwards, a gang investigator and the People‟s only witness at the
hearing, testified he and his partner were on routine patrol on the afternoon of March 3,
2012. The officers drove by an alley, which was a known location for gang crimes and
narcotics activity, and saw Alonso and another young man; both were wearing baggy
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white T-shirts, baggy tan pants and black tennis shoes, clothing consistent with gang
attire. When Edwards and his partner made a U-turn and entered the alley in their patrol
car, they could no longer see the youths. The officers decided to search for them on foot.
As they stepped out of the patrol car, they immediately detected a strong odor of
marijuana. They also noticed numerous, fresh, gang-related graffiti (“tagging”) on the
walls, dumpsters and light posts. Shortly thereafter, the officers discovered Alonso and
his companion crouched down next to a dumpster, apparently in an effort to conceal
themselves. Edwards recognized Alonso from prior contacts on the street as a self-
identified gang member. He ordered the young men to stand, place their hands on their
heads and face the alley wall. Alonso and his companion complied and were handcuffed.
       To ensure his safety, Officer Edwards decided to conduct a pat search of Alonso
and his companion for weapons. He based this decision on his knowledge that Alonso, a
gang member, and his companion were in an area of gang-related crimes and narcotics
activity; they were wearing baggy clothing that could conceal a weapon; and gang
members and narcotics dealers typically carry weapons to defend themselves or to use
offensively against others.
       During the pat search, Officer Edwards felt what was possibly a knife in Alonso‟s
pocket. Edwards retrieved the object, a knife (or “box cutter”) with a folded blade that
could be released with a flick of the wrist. In addition, in Alonso‟s pants pocket the
officer found a clear plastic bag containing what appeared to be marijuana residue.
       At the close of the People‟s evidence, the juvenile court heard argument by
counsel and denied Alonso‟s motion to suppress. Alonso neither testified nor presented
other evidence in his defense.




                                             4
               b. Juvenile court’s findings
        The juvenile court found true the allegation Alonso was unlawfully carrying a
concealed dirk or dagger and declared the offense a felony.
        4. Disposition Hearing
        At the disposition hearing on the two petitions, the juvenile court declared Alonso
a ward of the court, ordered him to be suitably placed and calculated his maximum term
of confinement as four years.
                                       DISCUSSION
        1. The Evidence Is Insufficient To Support the Finding Alonso Made Criminal
           Threats
              a. Standard of review
        The same standard governs review of the sufficiency of evidence in juvenile cases
as in adult criminal cases: “[W]e review the whole record to determine whether any
rational trier of fact could have found the essential elements of the crime or special
circumstances beyond a reasonable doubt. [Citation.] The record must disclose
substantial evidence to support the verdict—i.e., evidence that is reasonable, credible, and
of solid value—such that a reasonable trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.]
„Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the
reversal of a judgment, for it is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence. [Citation.]‟ [Citation.] A reversal for
insufficient evidence „is unwarranted unless it appears “that upon no hypothesis whatever
is there sufficient substantial evidence to support”‟ the jury‟s verdict.” (People v.
Zamudio (2008) 43 Cal.4th 327, 357; see In re Matthew A. (2008) 165 Cal.App.4th 537,
540.)


                                               5
              a. Alonso’s threat did not cause his parents to be in sustained fear for their
                 safety

       Penal Code section 422 provides a criminal threat occurs when a person “willfully
threatens to commit a crime which will result in death or great bodily injury to another
person, with the specific intent that the statement, made verbally, . . . is to be taken as a
threat, even if there is no intent of actually carrying it out, which, on its face and under
the circumstances in which it is made, is so unequivocal, unconditional, immediate, and
specific as to convey to the person threatened, a gravity of purpose and an immediate
prospect of execution of the threat, and thereby causes that person reasonably to be in
sustained fear for his or her own safety or for his or her immediate family‟s safety.”
“Sustained fear” as an element of this crime means “a period of time that extends beyond
what is momentary, fleeting or transitory.” (People v. Allen (1995) 33 Cal.App.4th 1149,
1156; see CALCRIM No. 1300.)
       Without disputing the People‟s proof of the other elements of the offense, Alonso
contends the evidence did not establish the element of sustained fear. We agree and
modify the findings from making criminal threats to attempts to make criminal threats.
(See People v. Jackson (2009) 178 Cal.App.4th 590, 597 [“a defendant [commits an]
attempted criminal threat where, with the requisite intent, he makes a sufficient threat
orally, directly to the victim, but . . . where, „for whatever reason, the threat does not
actually cause the threatened person to be in sustained fear for his or her safety even
though, under the circumstances, that person reasonably could have been placed in such
fear‟”]; see generally People v. Toledo (2001) 26 Cal.4th 221.)
       To be sure, the record established that both parents feared Alonso the night of
March 11, 2012. According to Officer Arredondo, Alonso‟s father was so frightened in
witnessing his son put his fists through a wall and a door that he locked himself in a room
with Alonso‟s mother. Alonso‟s mother acknowledged she had told police her son‟s
violent behavior scared her. However, the People failed to elicit testimony from Officer
Arredondo or anyone else that either parent experienced sustained fear as a result of
hearing Alonso‟s threat to have them shot. To the contrary, Alonso‟s father denied

                                               6
Alonso had made such a threat on the night of March 11, 2012. He also testified similar
threats previously made by his son did not scare him because Alonso never knew what he
was saying when he had not taken his bipolar medication. Similarly, Alonso‟s mother
testified her son had never made the threat to her.
        Nonetheless, the People argue it was reasonable for the court to infer under the
circumstances that Alonso‟s parents had in fact suffered sustained fear because of his
threat. The People emphasize the threat was unambiguous and directly communicated to
the parents; it was similar to threats he had made in the past, which were also
accompanied by “out of control” behavior; Alonso was a gang member; and his parents
remained hidden behind a locked door until police arrived. To the extent the People‟s
assertions are supported by the record,1 they adequately support the objective element of
the offense—it would be reasonable for someone hearing this threat to experience
sustained fear—but the evidence is insufficient to satisfy the additional subjective
element—the targets of this threat heard it and were actually placed in a state of sustained
fear.
        As discussed, Alonso does not dispute there was proof beyond a reasonable doubt
he intended to make a criminal threat and committed acts in furtherance of that threat.
Accordingly, the lack of evidence of the sustained fear element alone does not justify
dismissal of those allegations in the March 13, 2012 delinquency petition, but rather
requires that we modify the juvenile court‟s adjudication and reduce the criminal threat


1
       No evidence was presented at the jurisdiction hearing on the March 13, 2012
petition that Alonso was affiliated with a gang, let alone that his parents knew he was a
gang member or feared retaliation by gang members acting on their son‟s behalf. The
Attorney General‟s attempt to overcome this evidentiary gap by asserting the parents
would have recognized Alonso‟s reference to “homies” as a colloquialism for his fellow
gang members not only lacks support in the record but also ignores the wide use of that
term in popular culture in a variety of nongang contexts. Similarly, the Attorney
General‟s summary of the evidence notwithstanding, the record does not indicate whether
Alonso‟s parents called the police before or after the threat was made or stayed in the
locked room until the police arrived at their home.


                                              7
findings to attempted criminal threats. (See People v. Jackson, supra, 178 Cal.App.4th at
p. 597; In re Sylvester C. (2006) 137 Cal.App.4th 601, 610-611.)
       2. The Suppression Motion Was Properly Denied
              a. Standard of review
       In reviewing the ruling on a motion to suppress, the appellate court defers to the
trial court‟s factual findings, express or implied, when supported by substantial evidence.
(People v. Ayala (2000) 23 Cal.4th 225, 255; People v. James (1977) 19 Cal.3d 99, 107.)
The power to judge credibility, weigh evidence and draw factual inferences is vested in
the trial court. (James, at p. 107.) However, in determining whether, on the facts found,
the search or seizure was reasonable under the Fourth Amendment, we exercise our
independent judgment. (People v. Zamudio, supra, 43 Cal.4th at p. 342.)2
              b. The law governing investigatory detentions and pat searches
       Police contacts with individuals fall into “three broad categories ranging from the
least to the most intrusive: consensual encounters that result in no restraint of liberty
whatsoever; detentions, which are seizures of an individual that are strictly limited in
duration, scope, and purpose; and formal arrests or comparable restraints on an
individual‟s liberty.” (In re Manuel G. (1997) 16 Cal.4th 805, 821.)
       A detention occurs within the meaning of the Fourth Amendment when the
officer, by means of physical force or show of authority, in some manner temporarily
restrains the individual‟s liberty. (Brendlin v. California (2007) 551 U.S. 249, 254
[127 S.Ct. 2400, 168 L.Ed.2d 132]; People v. Zamudio, supra, 43 Cal.4th at p. 341.) A
police officer may detain an individual only if the officer has a reasonable, articulable
suspicion the detainee has been, currently is or is about to be engaged in criminal activity.
(Terry v. Ohio (1968) 392 U.S. 1, 21 [88 S. Ct. 1868, 20 L.Ed.2d 889]; see In re Tony C.


2
       Whether relevant evidence obtained by assertedly unlawful means must be
excluded is determined exclusively by deciding whether its suppression is mandated by
the federal Constitution. (Cal. Const., art. I, § 28, subd. (f)(2); People v. Lenart (2004)
32 Cal.4th 1107, 1118.)


                                              8
(1978) 21 Cal.3d 888, 893.) To satisfy this requirement, the police officer must “point to
specific articulable facts that, considered in light of the totality of the circumstances,
provide some objective manifestation that the person detained may be involved in
criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231; United States v. Sokolow
(1989) 490 U.S. 1, 7 [109 S.Ct. 1581, 104 L.Ed. 2d 1].)
       When a police officer reasonably suspects a crime has been committed and the
individual he has detained may be armed and dangerous, the officer may “conduct a
carefully limited search of the outer clothing of such persons in an attempt to discover
weapons which might be used to assault him.” (Terry v. Ohio, supra, 392 U.S. at p. 30.)
“The purpose of this limited search is not to discover evidence of crime, but to allow the
officer to pursue his investigation without fear of violence . . . .” (Adams v. Williams
(1972) 407 U.S. 143, 146 [92 S.Ct. 1921, 32 L.Ed.2d 612].) To justify a pat search for
weapons, the officer need not have probable cause to arrest the individual nor “be
absolutely certain that the individual is armed; the issue is whether a reasonably prudent
man in the circumstances would be warranted in the belief that his safety or that of others
was in danger.” (Terry, at p. 27.) The officer‟s reasonable suspicion must be directed at
the individual to be searched (Ybarra v. Illinois (1979) 444 U.S. 85, 95 [100 S.Ct. 338, 62
L.Ed.2d 238]) and must be based on specific, articulable facts (Terry, at p. 21). As with
an investigatory detention, the determination whether an officer had reasonable suspicion
to conduct a pat search for weapons is based on the totality of the circumstances. (People
v. Avila (1997) 58 Cal.App.4th 1069, 1074.)
              c. The detention and pat search of Alonso were lawful
       Officer Edwards detained Alonso and his companion after locating them in the
alley hiding next to a dumpster, believing they may have just used marijuana and
vandalized parts of the alley. The officer‟s suspicion of ongoing criminal activity was
based on the following articulable facts: (1) the alley was known for gang-related crimes
and narcotics activity; (2) Alonso was a gang member; (3) a strong odor of marijuana was
emanating from inside the alley and fresh gang-related graffiti was on the walls, dumpster
and light pole; (4) Alonso and his companion wore baggy clothing capable of concealing

                                               9
contraband; and (5) the youths hid from Edwards and his partner when they saw the
officers. Edwards was justified in detaining Alonso to confirm or dispel his suspicion
Alonso had been recently involved in illegal activity. (See, e.g., Illinois v. Wardlow
(2000) 528 U.S. 119, 124 [120 S. Ct. 673, 145 L. Ed. 2d 570] [presence in high-crime
area and evasive behavior are relevant factors in determining reasonable suspicion];
People v. Souza , supra, 9 Cal.4th at p. 241 [same]; United States v. Lamela (1st Cir.
1991) 942 F.2d 100, 102 [wearing baggy clothing suitable for concealment of contraband
in combination with other factors, may raise reasonable suspicion].)
       There were also specific and articulable facts to support Officer Edwards‟s
decision to conduct a pat search of Alonso for officer safety. As Edwards testified,
Alonso was a known gang member, detained in gang territory after attempting to evade
the officers and in the company of another youth who was a probable gang member. The
two young men wore baggy clothing that could conceal a weapon, and, as gang members,
were likely armed. (See In re H.M. (2008) 167 Cal.App.4th 136, 146 [“[o]fficers in an
area plagued by violent gang activity need not ignore the reality that persons who commit
crimes there are likely to be armed”].) Based on the totality of the circumstances, the
officer reasonably believed his safety was at risk; the decision to pat search Alonso was
justified. (People v. Dickey (1994) 21 Cal.App.4th 952, 957 [“The judiciary should not
lightly second-guess a police officer‟s decision to perform a patdown search for officer
safety. The lives and safety of police officers weigh heavily in the balance of competing
Fourth Amendment considerations.”].) Alonso‟s suppression motion was properly
denied.




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                                     DISPOSITION
      The juvenile court‟s findings in counts 2 and 3 are modified to findings Alonso
committed two misdemeanor offenses of attempting to make a criminal threat, and the
maximum term of confinement is reduced to three years eight months (rather than four
years). As modified, the order is affirmed.



                                                   PERLUSS, P. J.



      We concur:



             WOODS, J.




             ZELON, J.




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