Filed 1/30/14 P. v. Hanks CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135496
v.
MAURICE LAPRELE HANKS, JR.,                                          (Contra Costa County
                                                                     Super. Ct. No. 51117506)
         Defendant and Appellant.



         Maurice Hanks, Jr., appeals from convictions of illegal possession of a firearm and
ammunition. He contends the trial court erred in denying his motion to suppress
evidence seized in what he claims was an unlawful detention and search of his person.
We affirm.
                                       STATEMENT OF THE CASE
         Appellant was charged by information filed on November 9, 2011, with one count
of possession of a firearm by a felon (former Pen. Code, § 12021, subd. (a)(1) [now
§ 29800, subd. (a)(1)])1 and one count of possession of ammunition by a convicted
person (former § 12316, subd. (b)(1) [now § 30305, subd. (a)(1)]). It was alleged that
appellant had been convicted of burglary, a felony, on August 31, 2011. It was further
alleged that the prior burglary constituted a strike under subdivisions (b) through (i) of




         1
             All statutory references are to the Penal Code.


                                                             1
sections 667 and 1170.12, and rendered appellant eligible to be sentenced to state prison.
(§ 1170, subds. (f) & (h)(3)(A).)
       At the preliminary hearing on November 2, 2011, appellant moved to suppress
evidence of the firearm and ammunition seized as a result of what he argued was an
illegal detention and search. This motion was denied.
       In the trial court, appellant again moved to suppress evidence, as well as to dismiss
the information (§ 995). These motions were denied after the court heard argument on
February 2, 2012.
       Jury trial began on February 15 and on February 17, the jury found appellant
guilty of both counts. Appellant had previously stipulated that he had suffered a prior
felony conviction. The court found the strike and prison eligibility allegations true.
       On May 7, the court denied appellant’s motion to strike the prior and sentenced
appellant to the middle term of two years on each count, doubled because of the prior
strike conviction, to run concurrently for a total prison sentence of four years.
       Appellant filed a timely notice of appeal on May 16, 2012.
                               STATEMENT OF FACTS2
       In October 2011, Richmond Police Officers Benjamin Therriault was working as a
crime-free housing officer at the Pullman Point apartment complex, a complex consisting
of four separate two-story buildings with about 200 units in a high-crime area. The
crime-free housing program had police officers work with the management of low-


       2
         The statement of facts is based primarily on the evidence presented at trial. The
factual basis for the pretrial motion to suppress, however, was limited to the transcript of
the preliminary hearing. A few of the facts relevant to the suppression motion were
brought out at the preliminary hearing but not at trial; for these, we will refer to the
transcript of the preliminary hearing.
       Respondent points out that the argument in appellant’s opening brief on appeal
improperly relies in part on trial testimony that was not part of the record upon which the
motion to suppress was considered. For the most part, the citations respondent provides
point to trial testimony that does not differ in substance from the testimony at the
preliminary hearing. To the extent appellant asks us to consider points not established by
the evidence at the preliminary hearing, we decline the request.


                                              2
income housing areas to alleviate criminal problems, through actions such as foot patrols,
advising management on ways to enhance the standard of living for the tenants, and
targeting gang members and living in or visiting the complex. Therriault and other
Richmond police officers had investigated a number of violent crimes at the complex,
including shootings, and had encountered firearms on individuals and in apartments there
on many occasions.
       Trespassing was a specific problem at Pullman Point. On the evening of
October 6, Therriault and Officer Matthew Stonebraker were assigned to observe a back
gate to the complex that was frequently scaled by trespassers. This vehicle gate, in a
fence about eight feet high, was kept open during school hours and secured the rest of the
time. Previously, a pedestrian gate next to the vehicle gate had been kept open 24 hours a
day, but it had been locked not long before the present incident, preventing access to that
side of the complex. Many residents of the complex would jump over the fence to get in
or out instead of walking the long way around through the front gate. There was a “no
trespassing” sign affixed to the locked gate, as well as other such signs in the area facing
the gate.
       At about 9:30 p.m., the officers observed two Black males scale the gate, one of
whom Therriault identified in court as appellant. Therriault testified that after the two
continued a little further into the property, he and his partner decided to detain them on
suspicion of trespassing. Therriault walked in appellant’s direction and told him to stop.
Therriault did not recall whether he identified himself as a police officer, but he and his
partner were in full uniform. Appellant did not stop initially, and Therriault repeated his
command several times. Appellant, who was holding a cell phone in his right hand, put
the phone down against the side of his body and turned toward Therriault. Due to his
knowledge of the area, the time of day, appellant’s baggie clothing and the fact he could
not see appellant’s hand, Therriault believed appellant could be armed. He withdrew his
service revolver and held it at the “low ready,” at a down angle in front of his body, for
“[m]aybe a second,” then reholstered it when he saw appellant’s hand. Therriault heard
appellant’s companion, who had been detained by Officer Stonebraker, say something


                                              3
about a knife. This caused Therriault concern because “usually when there’s one weapon
there are more.”
        Therriault directed appellant to place his hands on top of his head and interlock his
fingers. Appellant did not completely interlock his fingers to the officer’s satisfaction;
Therriault tried to hold them together and appellant began to pull them apart to separate
his hands. Therriault tightened his grip on appellant’s hands but because of appellant’s
resistance and concern for his safety, he put appellant’s hands in handcuffs behind his
back. He then conducted a pat search of appellant’s waistband. In front of appellant’s
right hip, Therriault felt a solid object he could not immediately identify. As he tried to
feel it again, appellant shifted his body and Therriault did not feel the object anymore.
Therriault pulled appellant closer to him, heard a sound “[c]lanking, metallic sound” from
the area of appellant’s leg, looked down and saw the barrel of a black firearm protruding
from appellant’s right pants leg. Therriault lifted appellant’s pant leg and saw the rest of
the firearm, then placed appellant on the ground in a prone position and conducted a more
extensive pat-down search for weapons.
        Officer Stonebraker retrieved the firearm and checked to see whether it was
loaded. As Stonebraker was checking the weapon, appellant said something to the effect
of, “Dam[n], and it’s loaded, too.” Appellant was placed under arrest. The weapon, a
.380 caliber automatic pistol, was found to contain one live .380 caliber bullet in the
chamber and 10 .380 caliber bullets in the magazine.
        Therriault testified that not long before the present incident, he had had contact
with appellant and determined that appellant did not live at the complex but was there to
visit a girl.
                                       DISCUSSION
        Appellant contends the trial court should have granted his motion to suppress
because Officer Therriault did not have reasonable suspicion to detain or to pat search
him. In essence, appellant argues that the various factors the officer cited did not provide
a reasonable basis for suspicion of criminal activity, it would have been more reasonable



                                              4
for the officer to conclude appellant was at the complex to visit the friend he had
previously visited there, and there was no justification for the pat search.
       “ ‘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. 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.’ (People v. Saunders (2006) 38 Cal.4th 1129, 1133–1134.) On appeal we
consider the correctness of the trial court’s ruling itself, not the correctness of the trial
court’s reasons for reaching its decision. (People v. Zapien (1993) 4 Cal.4th 929, 976 [if
the trial court’s ruling is correct ‘ “ ‘ upon any theory of the law applicable to the case, it
must be sustained regardless of the considerations which may have moved the trial court
to its conclusion’ ” ’]; People v. Braeseke (1979) 25 Cal.3d 691, 700–701.)” (People v.
Letner and Tobin (2010) 50 Cal.4th 99, 145.)
       Even in the absence of probable cause to arrest, “[a] detention is reasonable under
the Fourth Amendment when the detaining officer can 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; People v. Celis (2004) 33 Cal.4th 667, 674.) That the
events may also be consistent with innocent is irrelevant: “[W]hen circumstances are
‘ “consistent with criminal activity,” they permit—even demand—an investigation . . . .’
(In re Tony C. [(1978)] 21 Cal.3d [888,] 894.) A different result is not warranted merely
because circumstances known to an officer may also be ‘ “consistent with lawful
activity.” ’ (Ibid.) As we said: ‘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 [police] investigation is to resolve that very ambiguity
and establish whether the activity is in fact legal or illegal . . . .’ (Ibid.)” (People v.
Souza, supra, 9 Cal.4th at p. 233.)
       Further, police officers have a “narrowly drawn authority” to conduct “a


                                                5
reasonable search for weapons for the protection of the police officer, where he has
reason to believe that he is dealing with an armed and dangerous individual, regardless of
whether he has probable cause to arrest the individual for a crime. The officer need not
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. [Citations.] And in determining whether the officer acted
reasonably in such circumstances, due weight must be given, not to his inchoate and
unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he
is entitled to draw from the facts in light of his experience. [Citations.]” (Terry v. Ohio
(1968) 392 U.S. 1, 27, fn. omitted.)
       Although appellant now challenges both the detention and the pat search, in the
trial court he expressly conceded the validity of the detention and challenged only the
search. His argument at the preliminary hearing was that the officer improperly went
“directly into a pat-search” rather than asking questions to investigate whether appellant
was trespassing. At the trial court hearing on the motion to suppress, the parties’
arguments and the court’s decision were also directed to the propriety of the search, not
the detention.
       The detention was clearly lawful. The fact that appellant scaled a locked gate
clearly labeled with “no trespassing” signs, in a location where the officers had been
assigned specifically because of a trespassing problem, made it more than reasonable for
Officer Therriault to investigate the potential trespass violation. The only question, here
as below, is whether the officer’s search was reasonable.
       As indicated above, Officer Therriault enumerated several factors that caused him
to believe appellant might be armed: His knowledge of the area, the time of day,
appellant’s baggie clothing, the fact he could not see appellant’s hand, and the fact that
appellant’s companion said something about a knife. The trial court based its decision
that the officer’s concern was reasonable primarily on appellant’s companion’s apparent
possession of a knife (citing People v. Wright (1988) 206 Cal.App.3d 1107, 1112) and
appellant’s “delay” in complying with the officer, which it viewed as potentially


                                             6
indicating defiance (citing People v. Wigginton (1973) 35 Cal.App.3d 732). The court
also viewed the high-crime area as a relevant circumstance, albeit not sufficient to
automatically justify a pat search; and noted that the fact it was nighttime and appellant’s
baggie clothing were relevant but of minor importance in the analysis. Acknowledging it
was a close case, the court held that the combination of factors justified that officer’s
decision to conduct the search.
       Appellant urges that these factors, in combination, were insufficient to create an
objective reasonable basis for suspicion that appellant was engaged in criminal activity or
presented a danger to the police officers.
       Appellant correctly points out that presence in a high crime area does not in itself
provide a reasonable basis for suspicion of criminal conduct or concern for officers’
safety. (People v. Bower (1979) 24 Cal.3d 638, 645.) “But officers are not required to
ignore the relevant characteristics of a location in determining whether the circumstances
are sufficiently suspicious to warrant further investigation. Accordingly, we have
previously noted the fact that the stop occurred in a ‘high crime area’ among the relevant
contextual considerations in a Terry analysis. [Citations.]” (Illinois v. Wardlow (2000)
528 U.S. 119, 124.) Here, it was not appellant’s mere presence that prompted Therriault
to detain and search him, but his conduct in scaling the locked gate to a complex where
he did not reside and subsequent lack of cooperation, combined with his companion’s
reference to a knife. (See In re H.M. (2008) 167 Cal.App.4th 136, 147–148 [stop and
frisk not based solely on presence in gang territory but on “curious activities” observed
by experienced officer].)
       Appellant contends Officer Therriault, the prosecutor and the trial court
improperly emphasized the “uncharged, unproven allegation that he was entering the
property as a trespasser.” His climbing over the gate, he maintains, should not have been
seen as a reliable indicator of trespass because the gate was routinely scaled by residents;
Therriault’s prior contact with appellant established appellant was an invitee of a resident
on a prior occasion; Therriault did not know or determine that appellant’s companion was
not a resident; and climbing over a gate is not an act that would lead a reasonable person


                                              7
to believe the climber is carrying a weapon. Appellant misses the point. That he might
have been innocently entering the premises did not eliminate the officers’ need to
determine whether the activity was in fact legal or illegal. (See People v. Souza, supra,
9 Cal.4th at p. 233.) After the police initiated the stop—when appellant failed to
immediately respond to the command to stop and to comply with the directions to keep
his hands interlocked on top of his head—his conduct, combined with the location, time
of night, and reference to a knife by his companion, was the basis for the further decision
to conduct a pat search.
       Appellant contends that his failure to stop immediately in response to the police
officers was not a reasonable basis for suspicion because he was on his cell phone and
might not have heard the initial command to stop. Again, the possible innocent
explanation does not obviate the officers’ legitimate reason for detaining a suspected
trespasser, and the search (as opposed to the detention) was based on appellant’s further
conduct resisting the officer and circumstances including the location and his
companion’s reference to a knife. The same is true of appellant’s baggie clothing: While
it might have been completely innocent, given the totality of the circumstances,
Officer Therriault was reasonable in viewing it as a factor supporting concern about he
potential for a concealed weapon.
       Appellant contends we must ignore the officer’s and court’s reliance upon
Therriault’s testimony that he heard appellant’s companion say something about a knife
because there was no proof that the conversation Therriault thought he heard in fact
occurred or that the companion actually had a knife. Appellant notes that
Officer Stonebraker did not testify that he seized a knife from the companion or
corroborate Therriault’s description of the conversation.
       That Stonebraker—who was not called as a witness at the preliminary hearing—
did not corroborate Therriault’s testimony on this point did not undermine the testimony.
It was for the court (in this case, at the preliminary hearing, as no additional testimony




                                              8
was presented at the hearing on the subsequent motion to suppress (§ 1538.5, subd. (i))3
to determine the credibility of Therriault’s description of what he heard and how he
interpreted it.
       Appellant also challenges the trial court’s reliance on People v. Wright, supra,
206 Cal.App.3d at p. 1112, for the proposition that it was reasonable for Officer
Therriault to consider appellant’s companion being armed as a factor bearing on his need
to conduct a pat search for weapons. Appellant contends the facts of Wright have no
relevance to the present case: There, the defendant found in a motel room with several
other people, including a man familiar to the police officer for having a history of
carrying concealed weapons. (Ibid.) Here, appellant maintains, there was no evidence
that either of the police officers knew appellant or his companion to have a history of
carrying concealed weapons. Again, appellant misses the point. Wright viewed the
officer’s knowledge that the defendant’s companion had a history of carrying concealed
weapons as providing a reasonable basis for suspicion that the defendant might be armed.
In the present case, the reasonable basis for suspicion was the comment Therriault
overhead which led him to believe appellant’s companion was presently armed. The point
is simply that an officer may reasonably be concerned that a subject is armed when that
subject’s companion is, or there is objective reason to believe might be, armed.
       In sum, considering the totality of the circumstances we have discussed,
Officer Therriault’s decisions to detain appellant and then to conduct a pat search were
reasonable. There was no error in denial of the motion to suppress.4



       3
         Under section 1538.5, subdivision (i), at a renewed hearing on a motion to
suppress in the trial court, “[t]he court shall base its ruling on all evidence presented at
the special hearing and on the transcript of the preliminary hearing, and the findings of
the magistrate shall be binding on the court as to evidence or property not affected by
evidence presented at the special hearing.”
       4
         Given this conclusion, there is no need for us to consider the trial court’s
alternate finding that the search could be upheld under the doctrine of inevitable
discovery, because appellant’s entry onto the property without license of the owner
would have justified an arrest for trespass under section 602, subdivision (h)(1), and,

                                               9
                                      DISPOSITION
       The judgment is affirmed.




                                                  _________________________
                                                  Kline, P.J.


We concur:


_________________________
Haerle, J.


_________________________
Richman, J.




therefore, a search incident to arrest. This theory had been raised by the prosecution in
opposition to the motion to suppress. At the hearing, the defense noted that section 602,
subdivision (o), requires a warning by the peace officer or person in lawful possession of
the property; the prosecutor pointed to other subdivisions of the trespass statute that could
have been the basis for arrest.


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