Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. BA311935, Rand S. Rubin, Judge.
Richard L. Fitzer, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General and Dana M. Ali, Deputy Attorney General for Plaintiff and Respondent.
MANELLA, J.
Appellant Bryan K. Mitchell pled guilty to a violation of Penal Code section 12021, subdivision (a)(1), possession of a firearm by a felon. As part of his plea agreement, appellant also admitted to a prior strike under section 667, subdivisions (b) through (i) and section 1170.12, subdivisions (a) through (d), and a prior prison term under section 667.5, subdivision (b).
Unless otherwise specified, statutory references are to the Penal Code.
The court sentenced appellant to the low term of 16-months, doubled to 32 months, imposed a restitution and parole revocation fine, and awarded 170 days of presentence credit.
The firearm in appellant’s possession was found after police officers stopped appellant for a pedestrian violation and performed a pat-down. Appellant moved to suppress the evidence on the ground the firearm was found in violation of appellant’s Fourth Amendment rights under Terry v. Ohio (1968) 392 U.S. 1. The only issue on appeal is whether the trial court erred in denying the motion to suppress. We conclude it did not.
FACTUAL AND PROCEDURAL BACKGROUND
The essential facts established at the suppression hearing through the testimony of Los Angeles Police Officer Sean Kinchla are not in dispute. On November 2, 2006, at 7:30 p.m., Officer Kinchla and his partner were in a patrol car referred to as a “hybrid,” meaning a marked vehicle without a light bar on top. He and his partner were in uniform. The officers were traveling southbound on Vermont Avenue near 62nd Street. This is a high gang activity neighborhood, where narcotic sales, murders, shootings, robberies, and vandalism occur.
There were two other officers in the back seat of the car, but they were not directly involved in the incident.
As the patrol car approached 62nd Street, the officers observed appellant, who had been standing on the sidewalk adjacent to the east side of Vermont, walk into the number one traffic lane. Appellant was located 10 to 15 feet north of the intersection of Vermont and 62nd Street at the time. There are no traffic signals or marked crosswalks at that intersection or at any nearby intersection. When appellant stepped onto Vermont, northbound traffic stopped for him. Appellant looked in the direction of the patrol car and quickly walked back to the sidewalk. Officer Kinchla believed appellant had committed the offense of jaywalking and decided to detain him.
On cross-examination, Officer Kinchla testified that although he had not observed appellant at the precise moment his foot hit the pavement, he knew traffic was heavy on that side of the street and observed a car stop for him.
As the officers got out of the car, Officer Kinchla observed appellant trying to hide behind people standing on the sidewalk in an apparent attempt to conceal himself. Officer Kinchla believed this behavior was suspicious because police officers who work gang units, and who use the hybrid cars, generally do not write tickets for pedestrian violations, and pedestrians ordinarily do not attempt to avoid such officers. From this, Officer Kinchla suspected “[t]hat there was something more than the [pedestrian] violation that [appellant] was trying to conceal.”
Officer Kinchla’s partner asked appellant to stop and, when appellant had done so, asked him if was carrying any weapons. Appellant said “no,” at the same time lifting up both his sweat shirt and t-shirt. Officer Kinchla saw what appeared to be a gang tattoo on appellant’s abdomen. Based on the high-crime area, the gang tattoo, and appellant’s evasive behavior, the officers conducted a pat-down of appellant. In appellant’s rear pocket, they found a loaded .25 caliber semi-automatic pistol.
Officer Kinchla could not recall the details of the tattoo at the hearing.
DISCUSSION
I
Standard of Review
“In reviewing the trial court’ ruling on the suppression motion, we uphold any factual finding, express or implied, that is supported by substantial evidence, but we independently assess, as a matter of law, whether the challenged search or seizure conforms to constitutional standards of reasonableness.” (People v. Hughes (2002) 27 Cal.4th 287, 327.) “The judiciary should not lightly second-guess a police officers’ 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.” (People v. Dickey (1994) 21 Cal.App.4th 952, 957.)
II
Validity of the Stop and Pat-Down
The Fourth Amendment prohibits officers from submitting persons to brief investigative stops only when such stops are “‘unreasonable.’” (People v. Souza (1994) 9 Cal.4th 224, 229, quoting Terry v. Ohio, supra, 392 U.S. 1, 19 & fn. 16.) A stop and “‘frisk’” or “‘pat-down’” has been described as “‘a serious intrusion upon the sanctity of the person.’” (People v. Souza, supra, 9 Cal.4th at p. 229, quoting Terry v. Ohio, supra, 392 U.S. at p. 17, 20-21.) Nevertheless, the procedure is not unreasonable where “the police officer could ‘point to specific and articulable facts which, taken together with rational inferences from those facts,’ would warrant the intrusion.” (People v. Souza, supra, 9 Cal.4th at p. 229, quoting Terry v. Ohio, supra, 392 U.S. at pp. 20-21.)
“[T]o justify frisking or patting down a person during an on-the-street stop, ‘the officer must first have constitutional grounds to insist on an encounter, to make a forcible stop.’” (People v. Souza, supra, 9 Cal.4th at p. 229, quoting Terry v. Ohio, supra, 392 U.S. at p. 32 (conc. opn. of Harlan, J.) Appellant concedes that a police officer who has reasonable suspicion to believe that an individual has violated the Vehicle Code can lawfully detain that individual. (See People v. Rodriguez (2006) 143 Cal.App.4th 1137, 1148-1149.) The reasonableness of such a stop is judged under the following principle: “[W]ould the facts available to the officer at the moment of the stop “‘“warrant a man of reasonable caution in the belief” that the action taken was appropriate[?]’” (People v. Rodriguez, supra, 143 Cal.App.4th at p. 1148, quoting Terry v. Ohio, supra, 392 U.S. at p. 22.) “Subjective good faith on the part of the officer is not enough. If the officer turns out to have been mistaken the mistake must be one which would have been made by a reasonable person acting on the facts known to the officer at the time of the stop. . . . [A] traffic stop will not violate the Fourth Amendment if the officer making the stop reasonably suspects the violation of a traffic law even if later investigation dispels that suspicion.” (People v. Rodriguez, supra, 143 Cal.App.4th at pp. 1148-1149.)
Respondent cites two Vehicle Code provisions potentially violated by appellant’s actions at the time of the stop -- section 21954, subdivision (a) and section 21955. Section 21954, subdivision (a) clearly requires a pedestrian crossing at a point “other than within a marked crosswalk or within an unmarked crosswalk at an intersection” to yield the right-of-way to vehicles that are “so near as to constitute an immediate hazard.” Officer Kinchla testified that appellant’s act of stepping out into the street caused at least one approaching vehicle to come to a stop, establishing that the vehicle was close enough to “constitute an immediate hazard.” Appellant contends that because the officer admitted he did not observe appellant’s foot hit the street, “[he] could not know whether traffic was so near as to constitute a hazard such that appellant’s act of crossing violated section 21954, subdivision (a).” We disagree. The officer testified that the traffic on Vermont was heavy and that appellant had not yet reached the median before a car was forced to stop for him. On these facts, the officer -- and the trial court in making its factual findings -- could reasonably infer that the car observed stopping for appellant had been near enough at the time he stepped into the street to constitute a hazard.
Section 21954, subdivision (a) provides: “Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard.” Section 21955 provides: “Between adjacent intersections controlled by traffic control signal devices or by police officers, pedestrians shall not cross the roadway at any place except in a crosswalk.” Because we conclude that appellant’s conduct constituted a potential violation of section 21954, subdivision (a), we do not analyze whether section 21955 might also have applied.
Where the stop is justified by a potential Vehicle Code violation, the pat-down must be independently justified by “specific and articulable facts together with rational inferences therefrom which reasonably support a suspicion that the suspect is armed and dangerous.” (People v. Dickey, supra, 21 Cal.App.4th at p. 956.) Here, the pat-down was justified by the following facts articulated by Officer Kinchla in his testimony: (1) appellant behaved furtively, attempting to hide behind others on the sidewalk when he saw the hybrid police vehicle; (2) appellant had a gang tattoo located on his abdomen; and (3) the stop occurred in an area of high gang activity and took place at night. Appellant asserts that the location of the stop in a high-crime area and the time the stop occurred are insufficient in themselves to justify a pat-down. (See People v. Medina (2003) 110 Cal.App.4th 171, 177-178.) However, those factors in combination with the other conduct noted by Officer Kinchla tipped the balance in favor of reasonableness. (See People v. Souza, supra, 9 Cal.4th at pp. 239-242 [“Time, locality, lighting conditions, and an area’s reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity.”].) The officers did not rely entirely on the location and time of day, but articulated other specific facts to justify the pat-down, namely, appellant’s odd, evasive behavior when he saw the patrol car and the gang tattoo exposed when he lifted his t-shirt. This was sufficiently indicative of potential danger to support the pat-down.
Appellant suggests his contention that the stop was unjustified is supported by People v. Ramirez (2006) 140 Cal.App.4th 849. There, the defendant crossed diagonally at an intersection controlled by four-way stop signs, walking in front of a nonmoving patrol car. The officer initiated a stop and pat-down under the professed belief that the defendant’s action violated Vehicle Code section 21954, subdivision (a). The court concluded the stop was unreasonable, finding that the officer lacked probable cause to believe a violation had occurred because the only vehicle in the vicinity was the officer’s own and it was stopped at one of the stop signs. Accordingly, there was no “‘immediate hazard’ to either [the defendant] or the officer or his vehicle or anyone else.” (People v. Ramirez, supra, at p. 854.) The court further dismissed as “wishful thinking” the Attorney General’s argument that the defendant crossed “‘directly in front of an oncoming vehicle.’” (Ibid.)
The facts of the instant case are markedly different from those in Ramirez. Here, the appellant stepped into heavy traffic on a major thoroughfare, causing at least one car to come to an immediate halt. This is not a situation where the officer was attempting to base a stop on a non-existent hazard, as in People v. Ramirez, supra, 140 Cal.App.4th 849. Thus, the stop was justified, and the pat-down that followed was not improper.
Our conclusion that the officers’ conduct was reasonable under the circumstances is supported by People v. Souza, supra, 9 Cal.4th 224. There, officers observed the defendant talking to occupants of a car in a high crime area. When the officers made their presence known, the car’s occupants bent down and the defendant fled. He was apprehended by an officer who conducted a pat-down for weapons, during which a bag of drugs fell from the defendant’s clothing. The California Supreme Court found the stop lawful. Noting that while flight from officers alone might not justify a stop, flight in response to the appearance of a uniformed officer or marked patrol car is “behavior that police may legitimately regard as suspicious, and [which] can be a key factor in establishing reasonable cause to detain . . . .” (Id. at p. 227.) The court held that the defendant’s activity in a “‘high crime area,’” and his flight upon seeing the officers, was sufficient to justify the detention and subsequent pat-down. (Id. at pp. 240-242.) Six years later, the United States Supreme Court confirmed that “nervous, evasive behavior” when combined with “the relevant characteristics of a location” is a “pertinent factor in determining reasonable suspicion.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.)
Here, appellant’s conduct led the officers to suspect he was engaged in criminal activity more serious than jaywalking. Officer Kinchla attested to his concern that appellant’s evasive actions in response to seeing a gang unit suggested that “there was something more . . . [he] was trying to conceal” than a simple pedestrian violation. “Where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the person with whom he is dealing may be armed and presently dangerous, where in the course of investigating this behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such person in an attempt to discover weapons which might be used to assault him. Such a search is a reasonable search under the Fourth Amendment, and any weapons seized may properly be introduced in evidence against the person from whom they were taken.” (Terry v. Ohio, supra, 392 U.S. at pp. 30-31.)
Under the principles articulated in Terry v. Ohio, People v. Souza and Illinois v. Wardlow, the officers were justified in their conduct here. The officers were in a marked vehicle, which appellant observed while he was in the act of crossing the street. Rather than proceed across the intersection, he reversed directions, returned to the side of the street he had just left, and attempted to conceal himself behind other pedestrians. As there was no reason to believe the officers in a gang-unit hybrid vehicle would be issuing pedestrian tickets, appellant’s behavior in reversing directions was itself suspicious. His attempt to conceal himself further added to the officers’ reasonable suspicions. His unexplained behavior and evasive conduct, occurring in a high-crime area, was sufficient to warrant the officers’ reasonable suspicion of criminal activity and to justify a brief detention.
Once he was detained, nothing about the encounter “served to dispel” the officers’ reasonable fear that appellant was involved in criminal activity and posed a danger to themselves or others. (Terry v. Ohio, supra, 392 U.S. 30-31.) In addition to the conduct already observed, appellant’s display of what the officers believed to be a gang tattoo further justified their concerns for their safety and the safety of others and their decision to conduct a pat-down for weapons.
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P. J., SUZUKAWA, J.