In re D.G. CA4/2

Filed 4/29/13 In re D.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

In re D.G., a Person Coming Under the
Juvenile Court Law.

THE PEOPLE,
E055888
Plaintiff and Respondent,
(Super.Ct.Nos. KJ34361 &
v. J241984)

D.G., OPINION

Defendant and Appellant.

APPEAL from the Superior Courts of San Bernardino and Los Angeles Counties.

Thomas S. Garza and Charles W. McCoy, Jr., Judges. Affirmed.

 Thomas S. Garza, Judge of the Superior Court of San Bernardino County,
accepted the transfer of the matter from Los Angeles County to San Bernardino County
and proceeded with disposition. (Case No. J2411984.) Minor does not appeal the
dispositional orders, but from orders made by Charles W. McCoy, Jr., Judge of the
Superior Court of Los Angeles County. (Case No. KJ34361.) A notice of appeal was
filed in the Superior Court of San Bernardino County and subsequently in the Superior
Court of Los Angeles County. The matter pending before the Second Appellate District
was eventually transferred to this court.

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 Eric Cioffi, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Melissa Mandel and Kathryn

Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

After the Los Angeles County Juvenile Court denied defendant and appellant

D.G.‟s (minor) motion to suppress, minor admitted that he had possessed

methamphetamine for sale. (Health & Saf. Code, § 11378.) The San Bernardino County

Juvenile Court thereafter declared minor a ward of the court and placed him on probation

in the custody of his mother on various terms and conditions. Minor‟s sole contention on

appeal is that the Los Angeles County Juvenile Court erred in denying his suppression

motion. We reject this contention and affirm the judgment.

I

FACTUAL BACKGROUND1

On January 13, 2012, at approximately 7:00 p.m., Los Angeles County Sheriff

Deputy Yvette Salazar was on patrol in a marked police vehicle when she noticed minor

walking on the sidewalk wearing oversized “really baggy, dark-colored shorts and dark-

colored hoodie and shirt.” Deputy Salazar explained that minor drew her attention

because, based on her experience, minor appeared to be dressed in gang attire. Deputy

1 The factual background is taken from the February 10, 2012 hearing on the
motion to suppress.

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Salazar was aware of about three to four recent gang-related shootings in the area, one

within a week, and decided to contact minor.

When Deputy Salazar approached minor in her patrol vehicle, the patrol vehicle‟s

red and blue lights were not on, but she may have shined a spotlight on minor to see him

better since it was dark outside. After Deputy Salazar parked her patrol car and exited

the vehicle, she walked toward minor and asked him to come over to her. Minor

cooperated with the deputy‟s request. Deputy Salazar did not have her weapon drawn

when she approached minor.

When Deputy Salazar first began speaking with minor, she noticed that minor‟s

pupils were dilated.2 She asked minor if he was on probation or parole and if he had

recently used any drugs. Minor replied that he was on probation and that he had smoked

“crystal meth” earlier that day. Based on minor‟s responses, minor was thereafter

detained. Deputy Salazar then conducted a search of minor‟s person for weapons and

drugs. Deputy Salazar found a bag of methamphetamine, a note indicating drug sales,

and a piece of paper containing an estimated profit margin for narcotics sales.

Minor moved to suppress the evidence pursuant to Welfare and Institutions Code

section 700.1. The parties had stipulated that the search and seizure was conducted

without a warrant.

Following the evidentiary hearing, the trial court in a written statement of decision

denied minor‟s suppression motion. The court found the initial encounter to be

2 Deputy Salazar testified that during her six and a half years as a deputy sheriff
she had extensive experience conducting narcotics investigations.

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consensual in nature; the deputy had reasonable suspicion to search and seize minor after

the deputy was informed of minor‟s status as a probationer, observed minor‟s dilated

pupils, and noted minor‟s response of recent illegal drug consumption.

II

DISCUSSION

Minor contends that the trial court erred in denying his suppression motion

because the juvenile court failed to consider the age of minor and the initial contact was

an unlawful detention. Specifically, he claims that in considering his age, 17 years old,

and the circumstances surrounding the encounter, no reasonable person would believe the

encounter was consensual in nature.

In reviewing the denial of a suppression motion, we evaluate the trial court‟s

express or implied factual findings to determine whether they are supported by

substantial evidence, but we exercise our independent judgment to determine whether, on

the facts found, minor‟s Fourth Amendment rights have been violated. (People v. Glaser

(1995) 11 Cal.4th 354, 362; People v. Williams (1988) 45 Cal.3d 1268, 1301.) There are

essentially three categories or levels of police “contacts” or “interactions” for purposes of

Fourth Amendment analysis: consensual encounters, detentions, and seizures, which

include formal arrests and restraints on an individual‟s liberty, comparable to an arrest.

(Wilson v. Superior Court (1983) 34 Cal.3d 777, 784 (Wilson).)

Our present inquiry concerns the distinction between consensual encounters and

detentions. Not every encounter an individual has with law enforcement triggers Fourth

Amendment scrutiny. (Terry v. Ohio (1968) 392 U.S. 1, 19, fn. 16.) Consensual

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encounters do not trigger such scrutiny. (Florida v. Bostick (1991) 501 U.S. 429, 434

(Bostick).) Unlike detentions, consensual encounters require no articulable suspicion that

the person has committed or is about to commit a crime. (Wilson, supra, 34 Cal.3d at

p. 784.) The United States Supreme Court has made it clear that a detention does not

occur simply because a police officer asks an individual a few questions. (Bostick, at

p. 434.) As long as a reasonable person would feel free to disregard the police and go

about his or her business, the encounter is consensual, and no reasonable suspicion is

required on the part of the officer. (California v. Hodari D. (1991) 499 U.S. 621, 628.)

Only when the officer, by means of physical force or show of authority, in some manner

restrains the individual‟s liberty does a seizure occur; thus, Fourth Amendment scrutiny

will not be triggered unless the encounter loses its consensual nature. (Bostick, at p. 434.)

There is no bright-line rule to determine if an encounter is consensual. (Ohio v.

Robinette (1996) 519 U.S. 33, 39.) “[I]n order to determine whether a particular

encounter constitutes a seizure, a court must consider all the circumstances surrounding

the encounter to determine whether the police conduct would have communicated to a

reasonable person that the person was not free to decline the officers‟ requests or

otherwise terminate the encounter.” (Bostick, supra, 501 U.S. at p. 439.) Whether or not

a person would have believed that he or she was free to leave is to be evaluated in light of

the totality of the circumstances, rather than emphasizing particular details of that

conduct in isolation. (Michigan v. Chesternut (1988) 486 U.S. 567, 573.) Factors that

might indicate an unlawful detention has taken place include: (1) the presence of several

police officers; (2) an officer‟s display of a weapon; (3) some physical touching of the

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person; or (4) the use of language or a tone of voice indicating that compliance with the

officer‟s request might be compelled. (United States v. Mendenhall (1980) 446 U.S. 544,

554 (Mendenhall); In re Manuel G. (1997) 16 Cal.4th 805, 821.) “The officer‟s

uncommunicated state of mind and the individual citizen‟s subjective belief are irrelevant

in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.

[Citation.]” (In re Manuel G., at p. 821; see also Mendenhall, at p. 554.)

Relying on J.D.B. v. North Carolina (2011) 564 U.S. ___ [131 S.Ct. 2394, 180

L.Ed.2d 310] (J.D.B.) and Kaupp v. Texas (2003) 538 U.S. 626 (Kaupp), minor initially

contends that the lower court was required to consider his age in the Fourth Amendment

context when a juvenile is subject to an unlawful detention. He therefore claims the

juvenile court erred, as a matter of law, and the matter must be reversed and remanded.

In J.D.B., supra, 131 S.Ct. 2394, the high court addressed the question whether the

age of a child subjected to police questioning is relevant for purposes of a Miranda

analysis. That case involved “a 13-year-old, seventh-grade student attending class” at a

middle school who was removed from class and then questioned by a uniformed police

officer in a closed conference room with another officer and two school administrators

present for 30 to 45 minutes. (Id. at pp. 2399-2400.) The minor confessed to a theft after

the police investigator “warned” that he could be put in juvenile detention. (Id. at

p. 2400.) The Supreme Court held that the age of the subject is relevant to the custody

analysis of Miranda, and remanded the case for the state court to consider the minor‟s

age as one of the relevant factors in determining whether he was in custody when police

interrogated him. (Id. at pp. 2398-2399, 2408.) However, while the court was certainly

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concerned with coerced, false confessions from an innocent juvenile, it did not extend its

discussion to Fourth Amendment consensual encounters. The court did, however, note

that “even where a „reasonable person‟ standard otherwise applies, the common law has

reflected the reality that children are not adults.” (Id. at p. 2404.)

In Kaupp, supra, 538 U.S. 626, the court essentially focused on the distinction

between detentions and arrests, rather than between consensual encounters and

detentions. (Id. at pp. 630-631.) The court explained: “A 17-year-old boy was

awakened in his bedroom at three in the morning by at least three police officers, one of

whom stated „we need to go and talk.‟ He was taken out in handcuffs, without shoes,

dressed only in his underwear in January, placed in a patrol car, driven to the scene of a

crime and then to the sheriff‟s offices, where he was taken into an interrogation room and

questioned. This evidence points to arrest even more starkly than the facts in Dunaway v.

New York [(1979)] 442 U.S. 200, 212 . . . where the petitioner „was taken from a

neighbor‟s home to a police car, transported to a police station, and placed in an

interrogation room.‟ There we held it clear that the detention was „in important respects

indistinguishable from a traditional arrest‟ and therefore required probable cause or

judicial authorization to be legal. [Citation.]” (Kaupp, at p. 631.) However, in

addressing the issue of consensual encounters, the court explicitly applied the “reasonable

person” standard. (Id. at pp. 629-630.)

We find that neither Kaupp nor J.D.B. support minor‟s position that the matter

must be reversed and remanded, because the juvenile court, as a matter of law, was

“obligated to consider minor‟s age” and failed to do so. Those cases hold that age, along

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with other factors such as previously noted, is a factor a lower court should consider

when determining the issue of detention or custodial interrogation. There is no indication

in the record to show that the juvenile court here failed to consider minor‟s age in

denying the suppression motion. Although the juvenile court did not explicitly note

minor‟s age in its statement of decision, the court was aware that minor was a “youth” or

a “minor,” and applied the appropriate objective test. Appealed judgments and orders are

presumed correct, and error must be affirmatively shown. (Denham v. Superior Court

(1970) 2 Cal.3d 557, 564.) “The general rule is that a trial court is presumed to have

been aware of and followed the applicable law. [Citations.]” (People v. Mosley (1997)

53 Cal.App.4th 489, 496-497.)

We now turn to the question of whether the encounter was consensual in nature or

a detention. Minor argues that under the totality of the circumstances, he was subjected

to an unlawful detention because a reasonable person in his position would not have felt

free to walk away.

We conclude the juvenile court properly denied minor‟s suppression motion

because the contact between the deputy and minor was consensual in nature. Here,

Deputy Salazar was on routine patrol in a marked unit when she saw minor walking on

the sidewalk wearing oversized “really baggy, dark-colored shorts and dark-colored

hoodie and shirt.” Deputy Salazar explained that minor drew her attention because,

based on her experience, minor appeared to be dressed in gang attire; she was aware of

three to four recent gang-related shootings in the area, one within a week, and decided to

contact minor. Because it was dark outside, the deputy shined the patrol vehicle‟s

8
spotlight on minor, parked and exited her vehicle, and asked minor to come over to her.

Minor cooperated with the deputy‟s request. As Deputy Salazar made contact with

minor, she noticed that minor‟s pupils were dilated and asked minor whether he was on

probation or parole and if he had recently used any drugs. Minor replied that he was on

probation and that he had used methamphetamine earlier in the day. This gave the deputy

reasonable suspicion to detain minor thereafter.

There is no indication in the record here that the deputy confronted minor in an

apprehensive manner, or that the initial encounter was anything more than consensual.

Minor was cooperative and voluntarily responded to the deputy‟s questions. The deputy

did not draw her gun or use force or threats. Minor was not directed to a different

location, and the encounter took place in a public setting. The tone of the encounter was

conversational, not accusatory. It appears that Deputy Salazar did not exhibit any

physical or verbal force that would cause a reasonable person to feel that he or she was

not free to leave. The encounter was not converted into a detention requiring Fourth

Amendment scrutiny merely because Deputy Salazar activated her patrol vehicle‟s

spotlight on minor and asked minor to come over to her. (See Bostick, supra, 501 U.S. at

p. 434; Florida v. Royer (1983) 460 U.S. 491, 497-498; People v. Hughes (2002) 27

Cal.4th 287, 328.)

People v. Lopez (1989) 212 Cal.App.3d 289 is illustrative. In Lopez, the court

found no detention when officers, who were concededly on the prowl for narcotics

dealers, recognized the defendant from a previous encounter. The officers “stood on

either side of him and launched into a short, albeit somewhat accusatory, interrogation.”

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(Id. at p. 293.) The officers asked the defendant whether the car he was sitting on

belonged to him. (Id. at p. 291.) When he said no, the officers asked why he was sitting

on that car. The defendant responded that he was waiting for his friends to play pool.

When the officers asked where his pool stick was, the defendant did not reply. The

officers asked whether he had identification, and the defendant reached into his pocket.

The defendant handed the officer his wallet and, when it was opened, a bindle of cocaine

“ „pop[ped] up.‟ ” (Ibid.) Finding the questions were “brief, flip, and, most importantly,

did not concern criminal activity,” the reviewing court concluded the questions were not

so accusatory as to demonstrate that a reasonable person would believe he was not free to

leave. (Id. at p. 293.)

Similarly, in this case, minor voluntarily complied with the deputy‟s request to

come over to her once she walked toward minor. In addition, minor voluntarily

responded to the deputy‟s questions. Defendant could have simply walked away from the

deputy. Furthermore, the record shows that only Deputy Salazar was present at the

scene, she did not have her weapon drawn, she did not physically touch minor, she did

not use her patrol vehicle‟s siren, and she did not tell minor to sit or stand in a particular

location. Therefore, the initial nature of the contact between minor and Deputy Salazar

was consensual and did not constitute a detention requiring reasonable suspicion.

Minor contends that he was unlawfully detained when the deputy shined her patrol

vehicle‟s spotlight on him, parked and exited her vehicle, and asked minor to come over

to her. He relies on People v. Roth (1990) 219 Cal.App.3d 211 (Roth) and People v.

Garry (2007) 156 Cal.App.4th 1100 (Garry) to support his position.

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 In Roth, supra, 219 Cal.App.3d 211, one of two police officers in a patrol car

shone a spotlight on the defendant and stopped the patrol car. (Id. at p. 213.) Both

officers got out, and one stood behind the patrol car door and told the defendant to

approach in order to talk with him. (Ibid.) The trial court ruled that a detention had

occurred when a police officer shined a spotlight on the defendant, stopped his patrol

vehicle, got out of the vehicle along with a second officer, and “command[ed]” the

defendant to approach and speak with him. (Id. at p. 215.) The officer said either “ „I

would like to talk to you,‟ ” or “ „Come over here. I want to talk to you.‟ ” (Id. at

p. 213.) Significantly, the trial court expressly found that the officer had “command[ed]”

the defendant to approach him. (Id. at p. 215, fn. 3.) One of the two Court of Appeal

justices who found there was an unlawful detention expressed doubt about whether the

statement was a request or a command. However, the trial court had found it was a

command, and both justices concluded they were bound by that finding. (Id. at pp. 215,

fn. 3, 216 (conc. opn. of Todd, J.).) Here, by contrast, only one officer was present, and

the juvenile court did not make a finding that Deputy Salazar commanded minor to come

over to her. Rather, the juvenile court specifically made the factual determination that no

command was made.3

3 As previously noted, whether a seizure occurred within the meaning of the
Fourth Amendment is a mixed question of law and fact qualifying for independent
review. (People v. Zamudio (2008) 43 Cal.4th 327, 342.) We review the lower court‟s
factual findings under the deferential substantial evidence standard, accepting factual
inferences in favor of the lower court‟s ruling, and we independently decide the ultimate
constitutional question. (Ibid.)

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 In Garry, supra, 156 Cal.App.4th 1100, an officer was patrolling a high-crime

neighborhood at 11:23 p.m. when he noticed the defendant standing on a street corner

next to a parked car. (Id. at pp. 1103-1104.) The officer parked his vehicle

approximately 35 feet away and observed the suspect for approximately five to eight

seconds. He then illuminated the defendant with the patrol car spotlight, exited his

vehicle, and walked “ „briskly‟ ” toward the defendant. (Id. at p. 1104.) By the officer‟s

own testimony, he reached the defendant “ „two and a half, three seconds‟ after leaving

his patrol car, during which time defendant referred to living „right there‟ and took three

or four steps back.” (Ibid.) The officer then asked if the defendant was on parole, and

the defendant affirmed that he was. At that point, the officer grabbed the defendant who

actively resisted. The officer then restrained and arrested the defendant. (Ibid.)

The Garry defendant unsuccessfully moved to suppress the evidence seized during

a search incident to the arrest. The trial court found that a consensual contact occurred

when the officer “ „simply approached‟ ” the defendant and started to speak with him,

and that the officer had a legal basis to detain the defendant once he admitted that he was

on parole. (Garry, supra, 156 Cal.App.4th at pp. 1104-1105.) On appeal, the appellate

court reversed, finding that the only conclusion to be drawn from the undisputed evidence

was that the officer‟s actions “constituted a show of authority so intimidating as to

communicate to any reasonable person that he or she was „ “not free to decline [his or

her] requests or otherwise terminate the encounter.” ‟ ” (Id. at p. 1112.)

The appellate court pointed out that the officer‟s own testimony established that

his conduct was both aggressive and intimidating. (Garry, supra, 156 Cal.App.4th at

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p. 1111.) That conduct included: (1) bathing the defendant in a spotlight after observing

him for only five to eight seconds; (2) walking so “ „briskly‟ ” that he traveled 35 feet in

“ „two and a half, three seconds‟ ”; (3) disregarding the defendant‟s statement that he was

standing outside his own home; and (4) immediately questioning the defendant‟s legal

status. (Id. at pp. 1111-1112.) In light of the officer‟s own testimony, the appellate court

was compelled to reject the trial court‟s finding that the officer “ „simply approached‟ ”

the defendant and “ „started to speak,‟ ” because that finding was not supported by

substantial evidence. (Id. at p. 1112.) The officer‟s own testimony established that he

“all but ran directly at [the suspect], covering 35 feet in just two and one-half to three

seconds, asking defendant about his legal status as he did so.” (Ibid.)

Again, in Garry, unlike here, undisputed evidence of police intimidation overrode

the trial court‟s finding that a detention did not occur. Here, there is no evidence of

police intimidation, and nothing intimidating about the deputy‟s approach. Although the

deputy shined the patrol lights on minor because it was dark outside and the deputy‟s

statement for minor to come over to her may have been somewhat intimidating, the

deputy did not park in a manner that blocked or impeded minor, or confront him, or issue

a command, or intimidate him, or approach minor rapidly while questioning him. (See,

e.g., Michigan v. Chesternut (1988) 486 U.S. 567, 575 [“While the very presence of a

police car driving parallel to a running pedestrian could be somewhat intimidating, this

kind of police presence does not, standing alone, constitute a seizure”]; People v.

Franklin (1987) 192 Cal.App.3d 935, 940 [the court held that no detention had occurred

where a police officer in his patrol car shone a spotlight on a suspect, drove the car

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directly behind the suspect, and stopped with the vehicle‟s headlights illuminating the

suspect].) Deputy Salazar‟s conduct did not constitute a detention.

In short, the evidence in this case is undisputed that Deputy Salazar‟s demeanor at

the time of the encounter was not of the demanding or threatening variety. Deputy

Salazar‟s statement to minor to come over to her was just that, a statement rather than a

command. Deputy Salazar did not physically or verbally restrain minor, and nothing she

said or did indicated that she wanted to do anything more than talk to minor. Thus, the

evidence does not demonstrate a show of authority other than what is implicit when a

uniformed police officer exits a patrol car to engage a citizen. It therefore fails to support

that Deputy Salazar coerced minor to submit to questioning by means of physical force or

a show of authority such that a reasonable person in minor‟s situation would not have felt

free to leave.

“[L]aw enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place, by asking him if he is

willing to answer some questions, by putting questions to him if the person is willing to

listen, or by offering in evidence in a criminal prosecution his voluntary answers to such

questions. [Citations.] Nor would the fact that the officer identifies himself as a police

officer, without more, convert the encounter into a seizure requiring some level of

objective justification. [Citation.] The person approached, however, need not answer

any question put to him; indeed, he may decline to listen to the questions at all and may

go on his way. [Citation.] He may not be detained even momentarily without

reasonable, objective grounds for doing so; and his refusal to listen or answer does not,

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without more, furnish those grounds. [Citation.]” (Florida v. Royer (1983) 460 U.S.

491, 497-498.)

The U.S. Supreme Court has stated: “Even when law enforcement officers have

no basis for suspecting a particular individual, they may pose questions, ask for

identification, and request consent to search luggage—provided they do not induce

cooperation by coercive means.” (United States v. Drayton (2002) 536 U.S. 194, 201.)

As previously noted, “it is well established that law enforcement officers may approach

someone on the street or in another public place and converse if the person is willing to

do so. There is no Fourth Amendment violation as long as circumstances are such that a

reasonable person would feel free to leave or end the encounter. [Citations.]” (People v.

Rivera (2007) 41 Cal.4th 304, 309.) Only when the officer, by means of physical force or

show of authority, has in some way restrained the liberty of a citizen may we conclude

that a seizure has occurred. (Terry v. Ohio, supra, 392 U.S. at p. 19, fn. 16.)

Under the totality of the circumstances, a reasonable person in minor‟s position

would have believed that he was free to walk away when Deputy Salazar shined her

patrol light on minor and asked minor to come over to her. There was no detention under

the Fourth Amendment at that point.

Based on our independent review of the circumstances as a whole, we conclude

that minor‟s initial encounter with Deputy Salazar was consensual. The juvenile court

properly denied minor‟s motion to suppress.

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 III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ
P. J.

We concur:

HOLLENHORST
J.

RICHLI
J.

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