Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04F07402
OPINION ON REHEARING
HULL, J.
Defendant was convicted by a jury of possession of a firearm within 10 years of having been convicted of misdemeanor battery. (Pen. Code, § 12021, subd. (c)(1).) Imposition of sentence was suspended and defendant was placed on probation for five years. He appealed, challenging the denial of his suppression motion and one of the conditions of probation.
On June 21, 2007, we issued an opinion affirming the judgment in its entirety, concluding the suppression motion was properly denied and defendant forfeited his challenge to the probation condition by failing to object below.
Defendant filed a petition for rehearing, arguing our determination of forfeiture conflicts with a recent decision of the state Supreme Court, In re Sheena K. (2007) 40 Cal.4th 875 (Sheena K.). We granted the petition. We now reissue our opinion, affirming the judgment but modifying the probation condition.
Facts and Proceedings
At approximately 12:00 p.m. on July 29, 2004, 15-year-old J.D. arrived at his mother’s house on Viking Drive in Rancho Cordova. As he entered the area, J.D. observed defendant in the street arguing with an Asian man and woman and trying to get the man to fight him. At one point during the argument, defendant removed his shirt and waved it around in the air over his head. Defendant also waved a handgun in the air over his head. The Asian couple eventually went inside their home.
After entering his mother’s home, J.D. looked out a window and saw defendant sitting in the driver’s seat of a gray sedan and talking to a woman. J.D. went outside and obtained the license plate number from the car. He gave this information to his mother’s roommate who was, at that moment, reporting the matter to the police.
At approximately 12:49 p.m., Officer Anthony Saika received a dispatch about a man brandishing a firearm on Viking Drive and arrived on the scene a few minutes later. He observed a gray Chevy Impala stopped in the middle of the street with a license plate number that closely matched what had been reported. As Saika approached the vehicle from the rear, it began moving forward, turned right at the next intersection and pulled into the first driveway. Saika activated the lights on his police car and came to a stop nearby.
As Saika got out of his patrol car, defendant emerged from the Impala. Saika handcuffed defendant and performed a pat-search for weapons. He felt what he recognized as a clip from a handgun and removed it. Saika asked defendant if there were any guns in the car and defendant looked down and did not answer. When Saika asked again, defendant said yes. Another officer who had arrived on the scene searched the vehicle but did not find a gun. Defendant then directed them to a sleeve behind the front passenger seat. There, the officers found a nine millimeter Glock handgun that matched the clip taken from defendant.
Defendant informed Saika that both the car and the handgun belonged to his mother and that she carried the handgun in the car all the time. He acknowledged getting into an argument but denied brandishing or displaying the handgun. During this conversation, a woman named J.T. approached and spoke to the officer. After that conversation, Saika confronted defendant with what J.T. had told him and defendant changed his story. He said that during his argument with the couple, the man said something about a gun. Defendant asked the man if he was “pistol playing on me.” Defendant then went to his car, reached inside, grabbed the handgun and placed it on the driver’s seat.
A few minutes later, defendant changed his story again. This time, he said he was showing the handgun to J.T. and that he carried the gun for protection because the “guys” he hangs out with are “into some heavy shit.” Defendant said to the officer: “I made a mistake, and I admit it.”
On December 19, 2001, defendant was convicted of the crime of misdemeanor battery (Pen. Code, § 242).
Defendant was charged with possession of a firearm within 10 years of being convicted of misdemeanor battery (Pen. Code, § 12021, subd. (c)(1)). He moved to suppress the evidence obtained following his detention, arguing the detention was unlawful. The motion was denied. Defendant was thereafter convicted as charged.
Imposition of sentence was suspended and defendant was placed on probation for a period of five years on the condition, among others, that he “not own or possess any dangerous or deadly weapon nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person.”
Discussion
I
Suppression Motion
Defendant contends his motion to suppress was wrongly denied because his detention, which was based solely on an anonymous informant tip, was unlawful. We disagree.
“An investigatory detention of an individual in a vehicle is permissible under the Fourth Amendment if supported by reasonable suspicion that the individual has violated the law. [Citation.] A peace officer may also search the passenger compartment of the vehicle, limited to those areas in which a weapon may be placed or hidden, if the officer possesses a reasonable belief the suspect is dangerous and may gain immediate control of a weapon.” (People v. Dolly (2007) 40 Cal.4th 458, 463 (Dolly).)
“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.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case.” (People v. Wells (2006) 38 Cal.4th 1078, 1083.)
In Alabama v. White (1990) 496 U.S. 325 [110 L.Ed.2d 301], the police received an anonymous tip that a woman was carrying cocaine in an attache case and would be leaving an apartment building at a specific time, get into a car matching a specific description, and drive to a specific motel. Acting on the tip, the police conducted surveillance and observed the woman proceed as predicted. She was then stopped, searched and cocaine was found in an attache case in her vehicle. (Id. at p. 327 [110 L.Ed.2d at pp. 306-307].)
The United States Supreme Court concluded the tip alone did not justify the stop, but the tip coupled with observations of the defendant’s movements in accordance with the tipster’s predictions made it reasonable to think the tipster had inside information about the suspect and therefore credit his assertion about illegal activity. (Alabama v. White, supra, 496 U.S. at p. 332 [110 L.Ed.2d at p. 310].)
In Florida v. J.L. (2000) 529 U.S. 266 [146 L.Ed.2d 254], an anonymous caller reported that a young black male standing at a bus stop and wearing a plaid shirt was carrying a gun. Sometime thereafter, officers arrived at the bus stop and observed three black males “‘just hanging out [there].’” (Id. at p. 268 [146 L.Ed.2d at p. 259].) One of the three, J.L., was wearing a plaid shirt. The officers did not see a firearm and J.L. made no threatening or otherwise unusual movements. One of the officers approached J.L., frisked him, and discovered a gun. (Ibid.)
The high court concluded the information received by the police was insufficient to justify the stop and frisk. According to the court, “[t]he tip in the instant case lacked the moderate indicia of reliability present in [Alabama v. White] and essential to the Court’s decision in that case. The anonymous call concerning J.L. provided no predictive information and therefore left the police without means to test the informant’s knowledge or credibility.” (Florida v. J.L., supra, 529 U.S. at p. 271 [146 L.Ed.2d at p. 260].)
The court rejected the state’s argument that reliability could be based on the tipster’s description of the physical characteristics of the defendant, i.e., a black male wearing a plaid shirt at a bus stop. The court explained: “An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.” (Florida v. J.L., supra, 529 U.S. at p. 272 [146 L.Ed.2d at p. 261].)
Finally, the court rejected adoption of a firearm exception based on the danger presented. Such an exception, the court explained, “would enable any person seeking to harass another to set in motion an intrusive, embarrassing police search of the targeted person simply by placing an anonymous call falsely reporting the target’s unlawful carriage of a gun.” (Florida v. J.L., supra, 529 U.S. at p. 272 [146 L.Ed.2d at p. 261].)
In People v. Jordan (2004) 121 Cal.App.4th 544, the police received an anonymous telephone tip about a man in a park carrying a concealed handgun and threatening to shoot people. The man was described as black, light-skinned, with a bald head, wearing a black jacket, white shirt, and red boots. The caller indicated the man was carrying the gun in his right jacket pocket. (Id. at pp. 548-549.)
A police officer arrived at the park and observed the defendant, who matched the description, sitting on a park bench. The officer could not see a gun bulge in the defendant’s clothing and the defendant did not appear to be engaging in any illegal activity. After observing the defendant for a while, the officer directed him over and conducted a search. He discovered a handgun in the defendant’s jacket pocket. (People v. Jordan, supra, 121 Cal.App.4th at pp. 550-551.)
The Court of Appeal concluded there was only one factor that distinguished this matter from Florida v. J.L., the fact that the anonymous tip was recorded. This factor detracts from any possibility that the call was an after-the-fact police fabrication. (People v. Jordan, supra, 121 Cal.App.4th at p. 562.) However, the court concluded this factual distinction was insufficient to warrant a different result. (Ibid.) At the time of the stop, the police had received no information predicting the defendant’s activities, as in Alabama v. White, and no information, other than the informant’s bare assertion, that the defendant was engaged in criminal activity. (Jordan, supra, at p. 559.)
In reaching its decision, the Jordan court did not consider the fact that the informant had told the 911 operator the defendant was threatening people with the gun. This information had not been relayed to the police who conducted the stop, and the People did not argue that such information should be imputed to the officers. (People v. Jordan, supra, 121 Cal.App.4th at pp. 549-550, 560, fn. 8.) The court also did not consider whether the result would be different if the anonymous call could be traced because, for example, it had been made from a home phone. No information about the possibility of tracing had been presented at the suppression hearing. (Id. at pp. 561-562.)
Defendant contends the present matter is controlled by Florida v. J.L. and People v. Jordan. According to defendant, the tip here was anonymous “and contained no internal indicia basis for or reliability of the informant’s information.” There was no information presented as to how the informant learned that defendant had been waving a gun around. Defendant argues the fact that Officer Saika found a person matching the description given by the informant, the person was in a car that matched the one described by the informant, and the car was in the location identified by the informant is not enough. According to defendant, this did not provide a basis for the informant’s knowledge that defendant was engaged in criminal activity, as required by Florida v. J.L. And the fact that defendant began driving away when the officer approached is of no importance, because this is what anyone would have done under the circumstances.
Following briefing in this case, the California Supreme Court decided Dolly, supra, 40 Cal.4th 458. In Dolly, the police received an anonymous tip that a light-skinned African-American male had “‘just pulled a gun’” on the caller and had mentioned a gang name. The caller said the man had a bandage over his left hand as if the hand had been broken and was sitting in the driver’s seat of a gray Nissan Maxima parked at a particular location near a recycling center. Two minutes later, the tipster called again and said he had just driven by the Nissan and determined it was black, not gray. (Id. at p. 462.)
At about the time of the second call, officers received a dispatch about a light-skinned, African-American male with a cast on his arm in a gray Nissan Maxima in the location indicated by the informant who had threatened a 911 caller with a gun. The officers arrived on the scene and saw a black Maxima with three people inside. Defendant, who was sitting in the driver’s seat, matched the description and had a cast on his arm. The officers ordered the defendant out of the car and conducted a search. A loaded, .38-caliber revolver was discovered under the front passenger seat of the car. (Dolly, supra, 40 Cal.4th at p. 462.)
The State Supreme Court concluded that, under the totality of the circumstances, the detention stop did not violate the defendant’s Fourth Amendment rights. Among those circumstances was the “‘grave and immediate risk’” posed to the caller and anyone nearby by the act of pointing a revolver at the caller. (Dolly, supra, 40 Cal.4th at p. 465.) According to the court: “‘[A]llegations of the threatened use of a weapon, made by [a] person claiming to be an eyewitness to the threats, required immediate police action’ and ‘is materially distinguishable from the anonymous tip at issue in Florida v. J.L.,’ which involved only an allegation of a concealed weapon.” (Ibid., quoting from Ray v. Village of Woodridge (N.D.Ill. 2002) 221 F.Supp.2d 906, 914.)
The court was also persuaded by the fact the anonymous tip involved a contemporaneous threat rather than past activity. (Dolly, supra, 40 Cal.4th at p. 467.) According to the court, “[t]he police ‘may ascribe greater reliability to a tip, even an anonymous one, where an informant “was reporting what he had observed moments ago,” not stale or second-hand information.’” (Id. at p. 468, quoting from United States v. Terry-Crespo (9th Cir. 2004) 356 F.3d 1170, 1177.) The tipster also provided an accurate and detailed description of the perpetrator and his location, which was confirmed minutes later by the police. (Dolly, supra, at p. 468.) The court summarized: “‘[T]here are situations in which an anonymous tip, suitably corroborated, exhibits “sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.”’ [Citation.] As the high court has explained, however, the tip must be ‘reliable in its assertion of illegality, not just in its tendency to identify a determinate person.’ [Citation.] In this case, the 911 call was a firsthand report of violent criminal conduct requiring an immediate response to protect public safety. The call was recorded, eliminating the possibility of after-the-fact police fabrication and allowing after-the-fact review (albeit limited) of the caller’s sincerity. The report was fresh, detailed, and accurate, and its description of defendant and his location was corroborated by the police within minutes. Under the totality of the circumstances, we find there was sufficient indicia that the 911 caller was able to see the criminal conduct he was reporting, that he was reporting it truthfully and accurately, and thus that the tip was sufficiently reliable to justify the limited intervention of an investigatory detention, which led to discovery of the loaded revolver.” (Id. at pp. 470-471.)
The present matter is more akin to Dolly, where the defendant pointed the handgun at his victim, than Florida v. J.L., where the defendant was merely in possession of a concealed handgun. Officer Saika testified at the suppression hearing that he was dispatched to the area based on an anonymous call that said “a black male wearing a black Raiders jersey was brandishing a firearm while he was arguing with a female at the dispatch address.” (Italics added.) The caller indicated that, at the time of the call, the black male was seated in a vehicle and provided a description of the vehicle. The caller also provided a license plate number. Saika arrived on the scene three minutes later and saw a vehicle matching the description stopped in the middle of the street in front of the address identified in the dispatch.
Brandishing a firearm while arguing with someone is little removed from pointing a firearm at him. The American Heritage Dictionary defines “brandish” as “[t]o wave or flourish menacingly, as a weapon.” (American Heritage Dict. (New college ed. 1981) p. 160.) Webster’s defines it as “to shake or wave (as a weapon) menacingly” or “to exhibit in an ostentatious or aggressive manner.” (Webster’s Collegiate Dict. (11th ed. 2006) p. 150.) Both pointing and brandishing a firearm involve a serious risk of injury to the victim as well as those nearby.
As in Dolly, the anonymous call at issue here was a report from someone who witnessed the dangerous activity firsthand, was contemporaneous with the events, and “requir[ed] an immediate response to protect public safety.” (Dolly, supra, 40 Cal.4th at p. 471.) In addition, once Officer Saika arrived, he observed defendant acted suspiciously. Defendant’s car was stopped in the middle of the street and, as Saika approached, defendant moved forward, turned right at the next intersection and pulled into the first driveway. The total distance covered was no more than 100 yards. Thus, instead of just pulling to the side of the street to let the officer pass, or even turning at the next intersection to get out of the officer’s way, defendant pulled into the first available driveway where, if that had been his destination all along, it is reasonable to assume he would have gone there to begin with.
Based on the totality of the circumstances, and primarily the report that the suspect had been seen brandishing a firearm in the course of an argument, Officer Saika had reasonable cause to stop defendant to investigate the matter further. The suppression motion was properly denied.
II
Probation Condition
Defendant challenges the following probation condition: “Defendant shall not own or possess any dangerous or deadly weapons nor remain in any building or vehicle where any person has such a weapon, nor remain in the presence of any armed person” (the weapons condition). He argues this condition should be modified to include a requirement that he know he is near an armed person or in a building or vehicle containing a weapon. He argues knowledge is a key element of a valid probation condition.
The People respond that defendant has forfeited this argument by failing to raise it in the trial court. We disagree.
As a general matter, failure to object and make an offer of proof at sentencing regarding probation conditions forfeits any challenge to those conditions on appeal. (People v. Welch (1993) 5 Cal.4th 228, 234.) “A timely objection allows the court to modify or delete an allegedly unreasonable condition or to explain why it is necessary in the particular case. . . . A rule foreclosing appellate review of claims not timely raised in this manner helps discourage the imposition of invalid probation conditions and reduce the number of costly appeals brought on that basis.” (Id. at p. 235.)
In Sheena K., supra, 40 Cal.4th 875, the state Supreme Court resolved a conflict in the Court of Appeal over whether failure to object to a probation condition as vague forfeits the issue on appeal. The probation condition at issue there prohibited the minor from associating with anyone disapproved by the probation department. The minor challenged the condition as vague, because it failed to require that the minor know the person had been disapproved by the probation department. The high court concluded this challenge had not been forfeited by the minor’s failure to raise it below. (Id. at pp. 878, 889.) According to the court, as long as the challenge raises a pure question of law that can be resolved without reference to the particular sentencing record developed in the trial court, it is not forfeited. (Id. at pp. 887-889.)
The present matter is controlled by Sheena K. Defendant’s challenge to the weapons condition is based on the absence of a requirement that he know he is in a building or vehicle where a person is armed or know he is in the presence of an armed person. This challenge can be resolved as a matter of law without reference to the sentencing record.
Turning to the merits of defendant’s challenge, we again conclude this matter is controlled by Sheena K. In that case, the court concluded the absence of a knowledge element violated the due process requirement of fair warning. (Sheena K., supra, 40 Cal.4th at p. 891.) According to the court: “A probation condition ‘must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,’ if it is to withstand a challenge on the ground of vagueness.” (Id. at p. 890.) In other words, the “defendant must be advised in advance whom she must avoid.” (Ibid.)
In the present matter, in the absence of a knowledge requirement, defendant must guess at whom and what vehicles or buildings he must avoid. Hence, he is not given fair warning of the conduct that might constitute a probation violation.
The People argue a knowledge condition is implicit in the weapons condition “just by the nature of what is prohibited.” According to the People, a knowledge element was required in Sheena K. because a determination of whether a person was disapproved by the probation department could never be made from an observation of the person alone. Here, by contrast, whether a weapon is present in a building or vehicle or is on a person is “sometimes not discernible based on observation alone.”
This is a distinction without a difference. Whether a defendant can never know he is in violation of a probation condition or can sometimes know, the fact remains he must know he is in violation in order to satisfy due process. There is no reason to conclude a knowledge element is implicit in one case but not the other. As the high court concluded in Sheena K., in the absence of an express knowledge requirement, the condition is unconstitutionally vague. (Sheena K., supra, 40 Cal.4th at p. 891.)
Disposition
The weapons condition is modified to read: “Defendant shall not own or possess any dangerous or deadly weapon nor remain in any building or vehicle where he knows any person has such a weapon, nor remain in the presence of any person he knows is armed.” In all other respects, the judgment is affirmed.
We concur: DAVIS , Acting P.J., RAYE , J.