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In re Richard G.

May 12, 2009; as modified May 20, 2009

IN RE RICHARD G., A PERSON COMING UNDER THE JUVENILE COURT LAW.
THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
RICHARD G., DEFENDANT AND APPELLANT.



(Super. Ct. No. 2007023623) (Ventura County). Manuel J. Covarrubias, Judge .

The opinion of the court was delivered by: Yegan, Acting P.J.

CERTIFIED FOR PUBLICATION

There is little room for error when a police officer responds to a disturbance call involving a firearm in a documented criminal street gang area. (See People ex e.l Totten v. Colonia Chiques (2009) 156 Cal.App.4th 31.) As this case shows, even when a police officer is careful, he is still subject to attack. The judiciary should not "lightly second guess" an officer's decision to conduct a "stop and frisk" in this situation. (People v. Dickey (1994) 21 Cal.App.4th 952, 957, citing, inter alia, Terry v. Ohio (1968) 392 U.S. 1 [27 L.Ed.2d 889].) More than 40 years ago, Presiding Justice Pierce said that police officers were entitled to protect themselves during a detention: "This is a rule of necessity to which a right even as basic as that of privacy must bow. To rule otherwise would be inhumanely to add another hazard to an already very dangerous occupation. Our zeal to fend off encroachments upon the right of privacy must be tempered by remembrance that ours is a government of laws to preserve which we require law enforcement officers - live ones. Without becoming a police state, we may still protect the policeman's status." (People v. Koelzer (1963) 222 Cal.App.2d 20, 27.)

Richard G. appeals from the order of the juvenile court denying his motion to suppress and accepting appellant's admission that he disturbed the peace by using offensive language. (Pen. Code, § 415, subd. (3).) Appellant contends the juvenile court erred when it denied his motion to suppress because (1) the evidence was insufficient to support the detention and cursory search for weapons, and (2) the prosecution did not establish the source of the information on which the arresting officer relied to detain appellant. These contentions are without merit and, in any event, the granting of a suppression motion would not preclude the People from proving its case. We affirm.

Facts and Procedural History

Oxnard Police Officers Mora and Alva were on routine patrol in the Colonia area of Oxnard at approximately midnight on June 21, 2007. They received a radio dispatch that two males were causing a disturbance outside a residence at 133 North Juanita Street and that one of them was possibly in possession of a handgun. The police dispatcher further stated that one male was wearing a black t-shirt while the other was wearing a blue Pendleton-type jacket. They were walking toward Colonia Park, which is located across the street from the North Juanita Street residence. Earlier that week, Officer Mora had responded to another call of a daytime shooting at the same residence. The police seized two guns on that occasion.

The officers drove around the park. Within a few minutes, they saw two males and two females walking near the park. The males were wearing clothng that identically matched the description given in the radio dispatch. They radioed for "backup" and Officer Valesquez responded to their call.

Officers Mora and Alva got out of their patrol car and made contact with the group. They ordered the males to stop but they refused to do so. Because they believed one of the males might be in possession of a gun, the officers repeated their commands and told the males to sit on the ground. Appellant repeatedly refused to obey any police command. He told Officer Mora, "I'm going to fuck you up . . . ." He made repeated statements to the same effect. When Mora grabbed appellant to place in him a control hold, appellant resisted and punched Mora. Appellant was eventually handcuffed with help from other officers, but not before he caused visible injuries to Officer Mora.

Appellant filed a written motion to suppress evidence of his statements and conduct during the detention on the theory that Officer Mora lacked reasonable suspicion to detain him. He also lodged a "Harvey-Madden" objection, contending the prosecution could not establish that his detention was lawful unless it identified the source of the original report or called the police dispatcher to testify that it had been received. (People v. Harvey (1958) 156 Cal.App.2d 516, People v. Madden (1970) 2 Cal.3d 1017.) The People attempted to meet this objection with an unsworn and unauthenticated police dispatcher's printout showing the date and time of the telephone call. The trial court sustained the hearsay objection to that document but permitted the officers to describe the radio dispatch they heard and responded to.

After the trial court denied the motion to suppress, appellant admitted the misdemeanor allegation that he disturbed the peace by using offensive language toward Officer Mora. Allegations that he resisted, obstructed or delayed a peace officer in violation of section 148, subdivision (a)(1), and that he resisted an executive officer in violation of section 69 were dismissed.

Anonymous Tip Supports The Detention

And Cursory Search for Weapons A police officer may stop and detain a person if the officer knows of ". . . specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity." (In re Tony C. (1978) 21 Cal.3d 888, 893.) The officer must have a "reasonable suspicion" that person to be detained has violated the law. (People v. Dolly (2007) 40 Cal.4th 458, 463.)

Here, information from an anonymous telephone call supplied the basis for appellant's detention. Relying on Florida v. J.L. (2000) 529 U.S. 266, appellant contends the telephone call did not include enough information to create a "reasonable suspicion" that he was involved in a crime. In that case, the United States Supreme Court invalidated a detention because it was based only on an anonymous telephone report that a person matching a general description was waiting at a specific bus stop and was carrying a concealed weapon. According to the Supreme Court, the report was insufficiently detailed because the caller did not explain how he knew about the concealed weapon or supply any other information demonstrating that his information was reliable. (Id. at p. 273.)

More recently, in Dolly, our California Supreme Court distinguished Florida v. J.L. In Dolly, an anonymous caller, who reported that he had just been assaulted with a firearm, provided a detailed description of the assailant, his car and his location. Within five minutes, a police officer located the car and driver described in the telephone call. A handgun was concealed under the front passenger seat. (People v. Dolly, supra, 40 Cal.4th at p. 462.) Our Supreme Court upheld the driver's detention, reasoning that officers properly acted on the anonymous report because it described "a grave and immediate risk not only to the caller but also to anyone nearby." (Id. at p. 465.) The court found this report more reliable than the one described in Florida v. J.L, because it was "a firsthand, contemporaneous description of the crime as ...


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