Filed 6/17/14 P. v. Zapien CA6
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H039878
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. C1349201)

         v.

JOSE ZAPIEN,

         Defendant and Appellant.



                                           I.        INTRODUCTION
         Defendant Jose Zapien1 appeals after pleading no contest to carrying a concealed,
loaded, unregistered firearm in public (Pen. Code, § 25850, subd. (a)2) and admitting
that he committed the offense for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(A)). He was placed on probation for three years.
         On appeal, defendant contends the trial court erred by denying his motion to
suppress evidence (see § 1538.5) and by imposing certain probation conditions. We will
modify the probation conditions and affirm the judgment as modified.




         1
             Below, defendant was referred to as Jose Zapien Mendoza.
         2
             All further statutory references are to the Penal Code unless otherwise indicated.
                                  II.    BACKGROUND
A.      The Vehicle Stop
        On January 28, 2013, San Jose Police Officers Jodi Williams and Phuong Nguyen
were on patrol. At about 8:39 p.m., the officers saw a vehicle roll through a stop sign.
The officers followed the vehicle and saw it roll through a second stop sign.
        The officers caught up to the vehicle “as it was pulling into a [residential]
driveway.” They “initiated a vehicle stop” by turning on the red lights of their unmarked
patrol car, and by using the patrol car siren to make a “chirp.” The stop happened
“simultaneously” with the vehicle pulling into the driveway. As the officers were pulling
up behind the vehicle, it was “coming to a stop.”
        After the vehicle stopped in the driveway, Officer Williams contacted the driver,
who was defendant’s sister. Defendant, who was the passenger, exited and stood in the
open doorway area of the vehicle. He looked to the north, east, and south. Officer
Nguyen thought defendant was “planning on running,” so he approached defendant.
Officer Nguyen wanted to get closer to defendant in case of a pursuit, which “happens a
lot.”
        Officer Nguyen took hold of defendant’s arm and walked defendant towards the
police car. He did so for “safety” reasons, explaining, “We don’t want people to be near
their car, especially if they’ve shown any kind of furtive actions or movements,” since the
car could hold weapons or evidence.
        While walking defendant to the patrol car, Officer Nguyen asked if defendant had
any weapons. Defendant “didn’t really answer.” He hesitated and said, “Ummm.” At
that point, Officer Nguyen turned defendant around and clasped defendant’s hands
together behind his back. Officer Nguyen again asked if defendant had any weapons.
This time, defendant replied that he had a gun. Officer Nguyen handcuffed defendant
and retrieved a loaded gun from defendant’s waistline.



                                               2
       The officers later learned that defendant’s parents lived at the residence. The
officers also determined that defendant had an outstanding arrest warrant.
B.     Charges, Suppression Motion, and Plea
       Defendant was charged with five firearms offenses, and the information alleged
that each crime was committed for the benefit of a criminal street gang. (§ 186.22,
subds. (b)(1)(A) & (d).)
       Defendant filed a motion to suppress. (See § 1538.5.) After the motion was
denied, defendant pleaded no contest to count 3 of the information, which charged him
with carrying a concealed, loaded, unregistered firearm in public. (§ 25850, subd. (a).)
Defendant admitted that he committed the offense for the benefit of a criminal street
gang. (§ 186.22, subd. (b)(1)(A).)
C.     Sentencing
       At the sentencing hearing, defendant was placed on probation for three years. The
trial court orally imposed a number of probation conditions, including a condition
prohibiting defendant from possessing, wearing, or displaying any gang-related tattoo and
a condition requiring defendant to provide passwords to his electronic devices and social
media sites. Although not orally imposed, the written probation conditions also included
a condition prohibiting defendant from possessing a pager or other portable
communication equipment.
                                  III.   DISCUSSION
A.     Motion to Suppress
       Defendant contends the trial court erred by denying his motion to suppress. He
contends the vehicle in which he was riding stopped because it had reached its destination
and not because of the officers’ show of authority. Defendant contends he therefore was
not detained by a traffic stop, but by Officer Nguyen exercising physical control over
him, and that the detention was not justified by any reasonable suspicion of criminal
activity.

                                             3
       1.     Proceedings Below
       In its written order denying defendant’s motion to suppress, the trial court found
that the initial detention was valid because of the Vehicle Code violation. The court
made a factual finding that “[s]hortly after the police car activated its emergency lights
and briefly turned on its siren, the car in which defendant was a passenger turned into a
residential driveway and stopped.” The court found that defendant was “detained as a
passenger of a lawfully stopped car” and that it was reasonable for the police to move
him away from the vehicle because of “officer safety concerns.” The court explained, “A
passenger getting out of the car increases the risk of confrontation with the officer as well
as the risk of flight. The defendant also remained close to the stopped vehicle and
therefore still had access to any potential weapon concealed in the vehicle.”
       2.     Standard of Review
       “In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply it to the facts in order to determine whether the law as
applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
       3.     Analysis
       Defendant contends the officers never seized the vehicle in which he was riding.
He claims the vehicle stopped because it had reached its destination and not because of
the officers’ show of authority. Thus, defendant argues, the police could only detain him
if they had reasonable suspicion to believe that he was armed or involved in criminal
activity.
       “The Fourth Amendment to the United States Constitution prohibits unreasonable
searches and seizures of persons, including unreasonable investigative stops. [Citations.]
With respect to seizures, ‘[a] seizure occurs whenever a police officer “by means of

                                              4
physical force or show of authority” restrains the liberty of a person to walk away.’
[Citations.]” (People v. Vibanco (2007) 151 Cal.App.4th 1, 8.)
       A typical traffic stop necessarily effectuates not only a seizure of the driver, but of
any passengers, as well. (See Brendlin v. California (2007) 551 U.S. 249, 257 (Brendlin)
[“A traffic stop necessarily curtails the travel a passenger has chosen just as much as it
halts the driver . . . .”].) Generally, in situations other than a lawful traffic stop, a person
may be detained only if the police have “suspicion (reasonably grounded, but short of
probable cause) that criminal activity is afoot.” (Arizona v. Johnson (2009) 555 U.S.
323, 330 (Johnson); see Terry v. Ohio (1968) 392 U.S. 1, 24.)
       According to defendant, the evidence presented at the motion to suppress
established that “[t]he car in which [he] was a passenger stopped because it had reached
its destination, not as a result of any action on the part of the officers.” Defendant
contends that since he was not detained as a result of a vehicle stop, the police needed
reasonable suspicion to detain him, and he contends the police did not have reasonable
suspicion that he was involved in any criminal activity.
       Below, the trial court found defendant was “detained as a passenger of a lawfully
stopped car.” However, defendant points out, the trial court erroneously found that the
vehicle did not turn into the driveway until after Officer Williams activated the
emergency lights and siren of the police vehicle. At the hearing on the motion to
suppress, the officers testified that they “initiated a vehicle stop” as the vehicle was
pulling into the driveway, and that the stop happened “simultaneously” with the vehicle
pulling into the driveway.
       Defendant cites no authority for the proposition that persons in a vehicle are not
detained when the police effectuate a traffic stop at the same time as the vehicle reaches
its destination. Here, the police turned on their patrol car’s lights and used their vehicle
siren to make a “chirp,” then pulled up behind the vehicle while it was pulling into the
driveway, where it stopped. The actions of the police clearly conveyed the message that

                                                5
the vehicle’s occupants were not free to leave. (See California v. Hodari D. (1991) 499
U.S. 621, 628.) The vehicle driver remained in the car after stopping in the driveway,
consistent with a submission to the show of police authority. (See Brendlin, supra, 551
U.S. at p. 255 [“passive acquiescence” can show that a seizure occurred in response to a
show of authority if “ ‘in view of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to leave’ ”].) Moreover,
defendant himself submitted to that show of authority. Although he exited the vehicle
and looked around, he remained standing in the passenger doorway after seeing the
police, instead of proceeding to a further destination.
       Defendant further argues that even if the officers’ actions did produce the vehicle
stop, reasonable suspicion to detain defendant should be required under the circumstances
of this case. He asserts that because the vehicle had reached its destination, there was
less of a concern for officer safety than during a traffic stop that occurs on the side of the
road. Further, defendant claims, he was not the typical passenger stuck on the side of the
road during a traffic stop, whose travel is “necessarily curtail[ed]” by the stop. (Brendlin,
supra, 551 U.S. at p. 257.)
       We decline defendant’s invitation to carve out an exception to the rule that a
passenger is necessarily and lawfully detained whenever there is a valid traffic stop of the
vehicle in which he or she is riding. Here, as the trial court found, there remained
significant officer safety concerns. Although neither officer was in danger of being
injured by passing traffic, the paramount concern to officer safety “in a traffic-stop
setting” is “the risk of a violent encounter” that may occur because the driver or
passenger is motivated to prevent the police from discovering “ ‘evidence of a more
serious crime.’ ” (Johnson, supra, 555 U.S. at p. 331, quoting Maryland v. Wilson (1997)
519 U.S. 408, 414.)




                                              6
       In sum, we determine that defendant was lawfully detained as the passenger of a
vehicle subjected to a valid traffic stop. The police therefore did not require reasonable
suspicion to detain defendant.
B.     Probation Conditions
       Defendant challenges two of the probation conditions imposed at the sentencing
hearing. Defendant requests this court strike the probation condition prohibiting him
from possessing a pager or other portable communication equipment, and he requests this
court modify the probation condition prohibiting him from possessing, wearing, or
displaying any gang-related tattoo.
       1.     Proceedings Below
       At the change of plea hearing, the prosecution indicated it would request probation
conditions requiring defendant to provide the passwords for his cell phone and social
media sites and to submit those items for warrantless searches. Defendant filed a written
objection, contending such probation conditions were unreasonable.
       The probation report recommended a number of other probation conditions,
including a condition that provided: “The defendant shall not possess, wear or display
any clothing or insignia, tattoo, emblem, button, badge, cap, hat, scarf, bandanna, jacket
or other article of clothing that he/she knows or the Probation Officer informs him/her is
evidence of, affiliation with, or membership in a criminal street gang.”
       At the sentencing hearing, the trial court orally imposed most of the recommended
probation conditions, including the condition ordering defendant not to “possess, wear, or
display any . . . tattoo” that is gang-related and the condition requiring defendant to
provide passwords to “any electronic devices, including cell phones” and to submit such
devices to warrantless searches.
       The clerk’s transcript contains an unsigned document entitled “Conditions of
Sentence/Probation (Gang),” which contains the probation conditions the trial court
imposed at sentencing, but which also contains the following probation condition, which

                                              7
the trial court did not orally impose: “The defendant shall not possess or be involved in
the use of a telephone pager device or any other portable communication equipment.”
       2.     Portable Communication Equipment Condition
       Defendant contends that the condition barring him from possessing any “portable
communication equipment” must be stricken. He contends this condition “conflicts with
the oral imposition of sentence . . . and interferes with his constitutional rights under the
First Amendment.”
       The Attorney General agrees that the oral pronouncement of the probation
conditions should govern in this case. (See People v. Pirali (2013) 217 Cal.App.4th
1341, 1346 [oral conditions of probation controlled “in light of the circumstances,” where
trial judge did not sign the written probation conditions nor mention them at the
hearing].) The Attorney General notes that the written probation conditions also include
a condition regarding dangerous or deadly weapons, which the trial court had expressly
stricken, suggesting this further shows that “the reporter’s transcript more reliably
chronicles the probation conditions actually imposed” than the written document entitled
“Conditions of Sentence/Probation (Gang).”
       In light of the record and the Attorney General’s concession, we will strike the
probation condition prohibiting defendant from possessing or using “a telephone pager
device or any other portable communication equipment.”
       3.     Tattoo Condition
       Defendant next challenges the probation condition ordering him not to “possess,
wear, or display any . . . tattoo” that is gang-related. He contends the condition “could be
read to require a probationer with an existing gang-related tattoo to have it removed.” He
points out that tattoo removal can be a painful procedure that can lead to scarring.
Defendant requests this court modify the condition to specify that “he shall not be
required to remove the tattoos on his body that existed at the time of sentencing.” (See
People v. Lopez (1998) 66 Cal.App.4th 615, 638.)

                                              8
       The Attorney General “does not object” to defendant’s proposed modification.
Therefore, we will add the above language to the condition.
                                  IV.    DISPOSITION
       The judgment is modified in the following particulars.
       First, the probation condition that provides, “The defendant shall not possess or be
involved in the use of a telephone pager device or any other portable communication
equipment” (condition No. 9 on the written document entitled “Conditions of
Sentence/Probation (Gang)”) is stricken.
       Second, the probation condition that provides, “You shall not possess, wear, or
display any clothing or insignia, tattoo, emblem, button, badge, cap, scarf, bandanna,
jacket or other article of clothing that you know or the Probation Officer informs you is
evidence of affiliation with or membership in a criminal street gang” is modified to read
as follows:
       “You shall not possess, wear, or display any clothing or insignia, tattoo, emblem,
button, badge, cap, scarf, bandanna, jacket or other article of clothing that you know or
the Probation Officer informs you is evidence of affiliation with or membership in a
criminal street gang, except that you shall not be required to remove the tattoos on your
body that existed at the time of sentencing.”
       As modified, the judgment is affirmed.




                                                9
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, ACTING P.J.




WE CONCUR:




__________________________
MIHARA, J.




__________________________
GROVER, J.




                                    10
