CERTIFIED FOR PARTIAL PUBLICATION[*]
Monterey County Superior Court No. SS111816 The Honorable Mark E. Hood, Judge.
Attorney for Defendant and Appellant Ronald Henderson Turner: Jonathan B. Opet under appointment by the Court of Appeal for Appellant.
Attorneys for Plaintiff and Respondent The People: Kamala D. Harris, Dane R. Gillette, Chief Assistant, Gerald A. Engler, Senior Assistant Rene A. Chacon, Supervising Deputy, Bruce Ortega, Deputy Attorney General.
After a high school football game on September 23, 2011, head coach Rafael Ward, and several other coaches, were accompanying their families to their cars for their protection because of a threat by defendant Ronald Henderson Turner, a parent of one of the players. Defendant called one of the coaches a racial slur and then said, “I’ll see you after the game.” Coach Ward told Lawrence Fenton, an off-duty probation officer providing security at the game, about the threat and that defendant had said he was going to carry out his threat after the game. A short time later, Ward told Officer Fenton that he (Ward) had learned from his aunt (who had heard it from an acquaintance of defendant) that defendant “had a gun on him.” Officer Fenton called Salinas police for backup. His partner who was with him, Steve Hinze (also an off-duty probation officer), located defendant and (with the police) detained him at or next to the parking lot outside the stadium. Defendant was handcuffed at gunpoint while officers determined whether he was armed. After admitting to a police officer that he had a gun, the police located a loaded revolver concealed on his person, and he was arrested.
After the denial of defendant’s motion to suppress evidence pursuant to Penal Code section 1538.5, he pleaded no contest to possession of a firearm in a school zone. The court suspended defendant’s sentence and placed him on felony probation under various terms and conditions, including the condition that he serve 250 days in county jail.
Defendant challenges the court’s denial of his suppression motion. He asserts that the officers based their conclusion that he was armed on unsubstantiated hearsay from an unknown source, and that this was, in essence, the kind of anonymous tip that the United States Supreme Court held in Florida v. J.L. (2000) 529 U.S. 266 (J.L.) could not support an investigative stop. He makes several arguments, including (1) he was subjected to a de facto arrest without the officers’ having probable cause at the time to believe he had committed a crime; and (2) even if there were no arrest, his detention was unjustified because the officers had no specific articulable facts to reasonably suspect that he was involved in illegal activity.
We conclude in the published portion of this opinion that the suppression motion was properly denied. Based upon the totality of the circumstances, (1) the officers’ actions to determine whether defendant was armed were reasonably necessary for their protection and did not result in his de facto arrest; and (2) the officers had sufficient articulable facts to support their reasonable suspicion that defendant had committed a felony––namely, possession of a firearm in a school zone. Therefore, the investigative stop was constitutionally permissible. In the unpublished portion of this opinion, we reject defendant’s claim for additional conduct credits under the latest amendment to section 4019, but agree that defendant’s challenge to two probation conditions (involving possession and consumption of drugs and alcohol, and possession of firearms) has merit. Accordingly, we will order the probation conditions modified to include a requirement of defendant’s actual knowledge of the possession and/or use of the specified items. We will affirm the order of probation as modified.
A football game at Everett Alvarez High School in Salinas took place on the evening of September 23, 2011, between approximately 7:00 or 7:30 and 10:15 p.m. Rafael Ward and Anthony Stewart were two of the coaches on the team for which defendant’s son played. Ward testified that “there was a negative vibe [among the crowd] in general” during the game. Near halftime, one of the players had his leg broken, and the “negative vibe” became more intense. At one point, defendant approached Ward on the field while he was talking to defendant’s son. At that moment, defendant’s son was angry and very upset with another coach. Defendant told Ward, “ ‘Coach, I was the one that told him to take a knee.’ ” Ward and defendant shook hands as defendant left the field; defendant did not threaten Ward But Stewart told Ward that defendant had threatened him (Stewart). Stewart was upset and said that defendant “called him a ‘bitch-ass [racial slur.] I’ll see you after the game.’ ”
When the game concluded, a number of coaches walked their families to their cars because of security concerns. According to Ward, people in the crowd “came up to Coach Stewart and said, ‘Hey, they said they’re going to wait for you in the parking lot.’ ” Ward assumed that “ ‘they’ ” referred to defendant, who had threatened Stewart earlier.
As Ward was walking out of the stadium, his aunt, Annie Camel, approached him. She asked, “ ‘Hey, Ralph, what is going on with you and Spanky [defendant]?’ ” Because his aunt was “obviously worried, ” Ward tried to dispel her concern. Camel then told Ward: “ ‘Well, I’m just telling you [that] you need to be careful because I heard he had a gun, ’ or ‘I heard he has a gun.’ ” She said that her friend, Jeannette Smith, “ ‘said he has a gun.’ ” The school principal, Darrin Herschberger, was nearby and overheard Ward and Camel. Herschberger asked Ward to clarify who it was who had a gun, and Ward responded that they were referring to defendant.
Monterey County Probation Officers Fenton and Hinze were hired by the high school to provide additional security at the football game. (They wore shirts with badges, and carried service weapons.) After the game, Herschberger instructed Officer Fenton to go to the parking lot with Officer Hinze because one or more people in the crowd had threatened one of the coaches. While Officers Fenton and Hinze were together in the parking lot, Officer Fenton spoke to Ward. Officer Fenton testified that he “asked [Ward]... what was going on. He told me that a parent had come up to them during the game because he was upset about something that one of the coaches had said or done and threatened [‘]to take care of it on the outs[’] is the way it was said to me. At which point that’s why the coaches had come out because they were concerned about their families getting hurt.” Ward told Officer Fenton that the parent who had made the threat was the father of one of the players, Turner. Ward walked off and then came back and told Officer Fenton that “he had heard [that defendant] had a gun on him.” Officer Fenton asked Ward how he knew this; Ward responded that “his aunt knew someone who knew [defendant] and said he had a gun on him.”
Officer Fenton, in Officer Hinze’s presence, then called the Salinas Police Department, indicating “that we had received a report of a person at the school with a gun” and requested “additional units to... provide cover and let us contact that person safely.” Officer Fenton also obtained a description of defendant from a school official.
Officer Hinze testified that he had been with Officer Fenton and Principal Herschberger in the parking lot after the game; Officer Hinze was “about an arm’s[-]length away or less” from Officer Fenton during this time. Officer Hinze described the situation of the crowd moving to get to their cars as “a little bit more chaotic than usual.” Officer Fenton told him that there had been an incident during the game when a player was injured; there was “a possible threat”; and someone might have a gun. Officer Hinze did not know the specifics of the threat; only that “[i]t was something [that] was going to be taken care of in the parking lot...” Officer Hinze was provided with defendant’s name as the person potentially having a gun; a school supervisor then radioed a physical description of defendant to the officer.
Officer Hinze observed six or seven people, including defendant, near a dumpster at the edge of the parking lot near the corner of Nantucket and Independence Streets. The officers had encountered this same group in the same location before the game. They were “standing... off to the side looking a little intimidating, ” and the coaches were escorting their families to the vicinity of the group. There were beer cans next to the group and “there was concern that this [was] supposedly the group that might [have made] a threat...” Approximately one minute after the arrival of the first marked police car in the parking lot, and as Officer Hinze received a physical description of defendant over the radio, he observed defendant—from a distance of about 45 feet—break away from the group and walk off campus.
Officer Hinze then shone his flashlight on defendant, identified himself as “ ‘Probation, ’ ” drew his service weapon, and directed defendant to put up his hands.  Officer Jordan White arrived—having responded to a police dispatch indicating that there was a man with a gun at the Everett Alvarez High School football game—and ordered defendant to the ground. Another police officer held defendant at gunpoint while Officer White approached and handcuffed him. Officer White asked defendant if he was carrying any weapons; defendant responded that he had a gun in his front pocket. Officer White reached into defendant’s pocket and recovered a black short-barrel revolver that was loaded.
In an information filed November 9, 2011, defendant was charged with three felonies, namely, possession of a firearm in a school zone (§ 626.9, subd. (b); count 1); carrying a loaded, unregistered firearm (§ 12031, subd. (a)(1); count 2); and carrying a concealed firearm (§ 12025, subd. (a)(2); count 3). It was also alleged as an enhancement to count 1 that possession of a firearm in or on the grounds of a public or private school (K - 12) is punishable by imprisonment of two, three, or five years (§ 626.9, subd. (f)(1)). It was alleged further as enhancements to count 2 (§ 12031, subd. (a)(2)(f)) and count 3 (§ 12025, subd. (b)(6)) that defendant was not the registered owner of the firearm.
Defendant thereafter filed a motion to suppress evidence pursuant to section 1538.5, arguing that the property seized (i.e., the black revolver) should be suppressed because it was the product of an unlawful search and seizure. The motion was opposed by the People. After the presentation of evidence and argument on January 5 and 6, 2012, the court denied the suppression motion. Immediately after the court’s ruling, defendant withdrew his not guilty plea, and entered a plea of no contest to count 1, conditioned upon the dismissal of the remaining counts and his receiving felony probation. The court thereafter suspended imposition of sentence and granted defendant probation for three years on various terms and conditions, including the condition that he serve 250 days in the county jail with the court awarding him 130 days of custody credits and 64 days of conduct credits for a total of 194 presentence credits. Defendant filed a timely notice of appeal.
I. Motion to Suppress
A. Standard of Review
“An appellate court’s review of a trial court’s ruling on a motion to suppress is governed by well-settled principles. [Citations.] [¶] In ruling on such a motion, the trial court (1) finds the historical facts, (2) selects the applicable rule of law, and (3) applies the latter to the former to determine whether the rule of law as applied to the established facts is or is not violated. [Citations.] ‘The [trial] court’s resolution of each of these inquiries is, of course, subject to appellate review.’ [Citations.] [¶] The court’s resolution of the first inquiry, which involves questions of fact, is reviewed under the deferential substantial-evidence standard. [Citations.] Its decision on the second, which is a pure question of law, is scrutinized under the standard of independent review. [Citations.] Finally, its ruling on the third, which is a mixed fact-law question that is however predominantly one of law, ... is also subject to independent review.” (People v. Williams (1988) 45 Cal.3d 1268, 1301; see also People v. Ayala (2000) 23 Cal.4th 225, 255.)
In reviewing the denial of a motion to suppress, we examine “the record in the light most favorable to the trial court’s ruling.” (People v. Jenkins (2000) 22 Cal.4th 900, 969.) All presumptions favor the trial court’s exercise of its power to judge the credibility of the witnesses, resolve any conflicts in the testimony, weigh the evidence, and draw factual inferences, “ ‘and the trial court’s findings on such matters, whether express or implied, must be upheld if they are supported by substantial evidence.’ ” (People v. Leyba (1981) 29 Cal.3d 591, 596-597, quoting People v. Lawler (1973) 9 Cal.3d 156, 160; see also In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236.) Where there is no controversy concerning the underlying facts—as is the case here—our task is simplified: The only issue is whether that rule of law, as applied to the undisputed historical facts, was or was not violated. This is an issue for our independent review. (See People v. Thompson (2006) 38 Cal.4th 811, 818.)
B. Detentions Under the Fourth Amendment
The legal basis upon which a peace officer may detain a citizen has been explained as follows: “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include 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, superseded on other grounds by Cal. Const., art. I, § 28.) “The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith. [Citation.]” (In re Tony C., at p. 893, citing Terry v. Ohio (1968) 392 U.S. 1, 22 (Terry).) The fact that there exists “[t]he possibility of an innocent explanation [for the suspect’s activity] does not deprive the officer of the capacity to entertain a reasonable suspicion of criminal conduct.” (In re Tony C., at p. 894.) The reasonableness of the officer’s suspicion is determined by what he or she knows before any search occurs. (J.L., supra, 529 U.S. at p. 271.) And when a detention is constitutionally justified, if the officer has a reasonable suspicion that the person is armed and dangerous, the officer may pat search the detainee for weapons. (Terry, at p. 30.)
In determining the lawfulness of a temporary detention, courts look at the “ ‘totality of the circumstances’ of each case to see whether the detaining officer has a ‘particularized and objective basis’ for suspecting legal wrongdoing.” (United States v. Arvizu (2002) 534 U.S. 266, 273, quoting United States v. Cortez (1981) 449 U.S. 411, 417; see also People v. Souza (1994) 9 Cal.4th 224, 239.) A balancing test is used to determine the constitutional validity of the detention: “The reasonableness of seizures that are less intrusive than a traditional arrest, [citations], depends ‘ “on a balance between the public interest and the individual’s right to personal security free from arbitrary interference by law officers.” ’ [Citations.] Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. [Citation.]” (Brown v. Texas (1979) 443 U.S. 47, 50-51; see also United States v. Hensley (1985) 469 U.S. 221, 228 [test, based upon reasonableness standard under Fourth Amendment, “balances the nature and quality of the intrusion on personal security against the importance of the governmental interests alleged to justify the intrusion.”].)
The standard of “ ‘reasonable suspicion’... [is one] less demanding than probable cause ‘not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’ ” (People v. Souza, supra, 9 Cal.4th at pp. 230-231, quoting Alabama v. White (1990) 496 U.S. 325, 330.) The United States Supreme Court has noted, “The concept of reasonable suspicion, like probable cause, is not ‘readily, or even usefully, reduced to a neat set of legal rules.’ [Citation.]” (United States v. Sokolow (1989) 490 U.S. 1, 7-8, quoting Illinois v. Gates (1983) 462 U.S. 213, 232.) Our high court has explained: “Although each case must be decided on its own facts, ... [t]he guiding principle, as in all issues arising under the Fourth Amendment and ...