Opinion
A147139
03-15-2017
In re A.C., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.C., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J13-00197)
A.C. was continued as a ward of the court (Welf. & Inst. Code, § 602) after the juvenile court sustained allegations he had illegally possessed a firearm (Pen. Code, § 29610) and obstructed a peace officer (§ 148, subd. (a)(1)). On appeal, A.C. maintains the court's jurisdictional findings are unsupported by substantial evidence. We disagree and affirm.
Undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In August 2015, the Contra Costa County District Attorney filed a first supplemental wardship petition (Welf. & Inst. Code, § 602) alleging A.C. possessed a firearm as a minor (§ 29610; count one) and obstructed a peace officer in the performance of his or her duties (§ 148, subd. (a)(1); count two). The petition further alleged A.C. had prior adjudications for first degree burglary (§§ 459, 460, subd. (a)), grand theft (§ 487, subd. (c)), and attempted car theft (§ 664; Veh. Code, § 10851, subd. (a)), which could increase his commitment time. A.C. denied the petition's allegations and filed a motion to suppress evidence obtained as the result of an arrest purportedly made without probable cause. The motion to suppress was denied.
The evidence from the combined suppression and jurisdictional hearing, viewed in the light most favorable to the judgment, establishes the following. On August 10, 2015, El Cerrito Police Department Corporal Michael Hernandez was on patrol in a marked police car. He was dressed in full police uniform. Before beginning his shift, Hernandez was informed a robbery had taken place three days prior, on the evening of August 7, on the BART path at Fairmount Avenue, near El Cerrito Plaza. Hernandez was told the suspects were two black males. One suspect wore a red hooded sweatshirt, with white writing on the front, and was approximately five feet 10 inches tall.
The BART path is also known as the Ohlone Greenway.
When Hernandez testified about the out-of-court statements regarding the August 7 robbery on direct examination, defense counsel raised a Harvey-Madden objection. (See People v. Harvey (1958) 156 Cal.App.2d 516 and People v. Madden (1970) 2 Cal.3d 1017.) The trial court allowed the testimony, stating the out-of-court statements were admitted, not for their truth, but to show Hernandez's state of mind. A.C. has abandoned his Harvey-Madden objection on appeal.
During crossexamination, defense counsel elicited the following information from Hernandez, without any limitation on its admissibility:
"Q. When you started your shift, did you receive information of a robbery?
"A. I did.
"Q. And that robbery was from three days prior?
"A. Yes.
"Q. You received a description of two suspects, correct?
"A. That's correct.
"Q. And one suspect was wearing, you said, a red sweatshirt with white writing, yes?
"A. Yes, sir.
"Q. El Cerrito BART station was the scene?
"A. Not the El Cerrito BART station. Down on the BART path, but yes it was near the BART station.
"Q. So in the plaza?
"A. No. It was on the BART path or Ohlone [Greenway] and Fairmount Avenue.
"Q. . . . And the suspect wearing the red sweatshirt was also described as wearing dark jeans?
"A. I don't recall.
"Q. Is there anything else you don't recall from the description? Did you give us everything you think that the description entailed?
"A. I gave everything that I remember from the description.
"Q. Would you like to look at the police report from the investigating officer from the robbery in order to refresh your memory as to what the description was? Would that help?
"A. Yes. [¶] . . . [¶]
"Q. So was there anything you left out on direct that was part of that description from the robbery suspect that you see there?
"A. I believe I left out that the weight was 185 pounds . . . and the victim stated that he was chubby.
"Q. . . . And the description of the second suspect, was that second suspect in the robbery described as skinny; do you remember?
"A. Again, I don't recall what the build was.
"Q. Would it refresh your memory if you looked again at the police report?
"A. Yes. [¶] . . . [¶]
"Q. . . . [I]s that a fair and accurate description of the description you were given at lineup before your shift started?
"A. Yes.
"Q. . . . Was the other suspect described as being skinny?
"A. He was or skinnier, yes."
During his August 10 patrol, at approximately 8:23 p.m., Hernandez saw three African-American males, later identified as A.C., R.L., and A.V., standing together near the corner of Liberty and Fairmount Streets, outside a Starbucks in El Cerrito Plaza. A.C. was wearing a red hooded sweatshirt with white writing across the chest. Hernandez believed A.C.'s sweatshirt was consistent with the description of the sweatshirt worn by one of the August 7 robbery suspects. Hernandez described one of A.C.'s companions as "thin."
Based on similarity to the robbery suspects' descriptions and proximity to the robbery scene, Hernandez decided to investigate the possible involvement of A.C. and his companions. As Hernandez turned into El Cerrito Plaza, A.C. and the two other males walked out of the plaza and continued north on Liberty Street. Hernandez turned his car around and followed the juveniles, who were then walking east, at "a fast pace," on Fairmount Avenue. Hernandez pulled into a gas station, about 15 to 20 feet in front of the juveniles, to try to contact them. He had not activated his overhead lights. When Hernandez got out of his car, A.C. began running in the opposite direction (west on Fairmount). The two other juveniles continued to walk eastbound on Fairmount Avenue. Hernandez got back in his car and followed A.C., who ran inside the north entrance of Starbucks. At this point, Hernandez turned into El Cerrito Plaza and activated his emergency lights. Hernandez lost sight of A.C., but a bystander told Hernandez that A.C. had run out a different door of the Starbucks and headed east out of the Plaza, toward the BART path.
Hernandez got back into his patrol car, left the Plaza, and turned onto Fairmount Avenue, heading east. He drove to the El Cerrito Plaza BART Station, where he contacted the other two juveniles he had seen with A.C. Hernandez approached and ordered them to stop. R.L. stopped, and A.V. fled. Hernandez detained R.L. and began to search the area for contraband. He saw A.C. walking east on Fairmount Avenue. Hernandez walked toward him, but A.C. turned and ran the other way on Fairmount Avenue. Hernandez shouted at A.C. to stop, but A.C. continued to run. Hernandez broadcast the information to other police units in the area and continued to give chase until he again lost sight of A.C. Hernandez was told by several bystanders that A.C. had run east toward the BART path.
A.V. was later detained and found with nine rounds of .40 caliber ammunition in his pocket.
Hernandez never directly observed A.C. walking on the BART path. However, he saw A.C. walking from the east side of El Cerrito Plaza, coming from the direction of the BART path. At this point, A.C. entered a Ross store in El Cerrito Plaza. Hernandez and other officers evacuated the store. During the search for A.C., Hernandez heard the security alarm sounding from the store's rear emergency exit. Hernandez eventually found A.C. near the store's rear door; he was still inside the store but no longer wearing the red sweatshirt. A.C.'s backpack and the red sweatshirt were located in a nearby aisle. A.C. was arrested for obstructing a police officer.
After arresting A.C., Hernandez searched the BART path east of the Ross store and located a loaded semiautomatic Glock 23. The firearm was approximately 150 feet from the store and approximately 200 to 300 feet from Fairmount Avenue. Because the gun was clean and dry, it appeared to have been recently abandoned on the grass.
On August 12, 2015, A.C. waived his Miranda rights and agreed to speak with El Cerrito Police Detective Bailey Thepkaysone. A.C. told Thepkaysone that he ran when he saw Hernandez's police car, because "he felt weird, scared, and he was thinking about . . . the last time he was incarcerated or arrested." When Thepkaysone asked A.C. if he knew about the firearm found along the BART path, A.C. initially denied any knowledge of the gun. After A.C. was told the gun would be processed for fingerprints, A.C. admitted he had handled the weapon. Specifically, A.C. said that, while running from the police, he saw the firearm on the ground, and touched it to see if it was real, but did not pick it up.
Miranda v. Arizona (1966) 384 U.S. 436.
At the conclusion of evidence, the juvenile court sustained count one as a felony, and count two, as a misdemeanor. The court explained: "As to [count one], it would be a coincidence of epic proportions for the minor's friend, [A.V.], or his co-participant . . . to have 9 rounds of .40 caliber ammunition that just happens to match a gun that's found on the BART path where [A.C.] has been most recently located. [¶] . . . [¶] So then the question is, did [A.C.] know about it? Well, we know that he did because he admits to knowing about it. He only admits knowing about it after the officer tells him that the gun is going to be tested for DNA. . . . And if you even accept his story at face value, which I don't. I don't find it believable. But if you do, he has control of the weapon when he touches it at that time. [¶] . . . Reasonable inference is that he had the gun on him at a certain point in time. But even if you accept his statement, he did have control of that weapon at the time he was on the BART path and running from the police." (Italics added.)
In denying the motion to suppress, the trial court explained: "[Hernandez had] information on [August 10] that on the previous Friday, three days before, there had been an armed robbery in the area of the Starbucks where the El Cerrito Plaza is located, that specifically the suspect had been wearing a red . . . sweatshirt with white writing on it, that the suspect was also an African-American adult. One was about five ten. The location was Fairmount Avenue and the BART path adjacent to the El Cerrito Plaza. [¶] And on [August 10], which was three days later, he sees a person who was wearing a red sweatshirt with white writing in the location of the Starbucks area which is adjacent to the El Cerrito Plaza where the armed robbery had been committed, and oddly enough when these people see his patrol car, which is a marked unit, they begin to walk away from him before he can contact them. [¶] That just sets into motion the entire flight thereafter, and clearly this officer had every reason to want to investigate and talk to this group of people because at least part of the description of the prior robbery suspect matched at least one of these individuals who was standing at the Starbucks. So [Hernandez] had the right to contact them. He also had the right to follow them after the fled. . . . [¶] So you have a 148 occurring as this evening unfolds. It is only once the officer sees him go into the Ross store and finds him in the store, after hearing alarms at the back of the store where there is an emergency exit, that [A.C.] is in fact detained and arrested, and his backpack is found with the red sweatshirt with the white writing inside of it. So there's no question that [A.C.'s] flight hindered the officer's ability to speak with him and to conduct an investigation which was in fact a lawful investigation based on the information he received in the lineup."
On November 4, 2015, the juvenile court continued A.C. as a ward of the court and ordered his commitment to the Youth Offender Training Program for a term not to exceed seven years, eight months, and 13 days. A.C. filed a timely notice of appeal.
II. DISCUSSION
A.C. maintains the juvenile court's jurisdictional findings are unsupported by substantial evidence. We disagree. When faced with a substantial evidence challenge, we "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) "[O]ur perspective must favor the judgment. [Citations.] 'This court must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. [Citations.] The test on appeal is whether there is substantial evidence to support the conclusion of the trier of fact; it is not whether guilt is established beyond a reasonable doubt. [Citation.] [¶] Before the judgment of the trial court can be set aside for insufficiency of the evidence . . . , it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.' " (Ryan N., at p. 1372.)
"By definition, 'substantial evidence' requires evidence and not mere speculation." (People v. Cluff (2001) 87 Cal.App.4th 991, 1002, italics omitted; accord, In re Roderick P. (1972) 7 Cal.3d 801, 809.) Nor is substantial evidence synonymous with any evidence. (People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681, fn. 3.) " 'Except where additional evidence is required by statute, the direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact.' (Evid. Code, § 411.) 'If a trier of fact has believed the testimony . . . this court cannot substitute its evaluation of the credibility of the witness unless there is either a physical impossibility that the testimony is true or that the falsity is apparent without resorting to inferences or deductions.' " (In re Andrew I. (1991) 230 Cal.App.3d 572, 578.) A. Obstruction of Peace Officer
A.C. does not explicitly challenge the juvenile court's ruling on the motion to suppress, but raises a parallel challenge to the sufficiency of the evidence supporting count two. " 'The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.' " . . . [¶] Section 148 is most often applied to the physical acts of a defendant. [Citation.] For example, physical resistance, hiding, or running away from a police officer have been found to violate section 148." (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) "An essential element of [section 148] is the officer at the time of the arrest must be engaged in the performance of his duties. . . . [I]f a defendant is charged with violating section 148 and the arrest is found to be unlawful, a defendant cannot be convicted of that section." (People v. White (1980) 101 Cal.App.3d 161, 166.) Thus, "there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him was committed." (In re Joseph F. (2000) 85 Cal.App.4th 975, 982; accord, Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895; In re Manuel G. (1997) 16 Cal.4th 805, 810-811, 816-817.)
"Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." (§ 148, subd. (a)(1).)
"The Fourth Amendment protects against unreasonable searches and seizures. (U.S. Const., 4th Amend.; Terry v. Ohio (1968) 392 U.S. 1.) 'A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.' (People v. Souza (1994) 9 Cal.4th 224, 231.)" (People v. Hernandez (2008) 45 Cal.4th 295, 299.) "Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual's liberty. [Citations.] . . . Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime." (In re Manuel G., supra, 16 Cal.4th at p. 821.)
A.C. insists the evidence is insufficient to support the court's implicit finding that Hernandez was engaged in the lawful performance of his duties because, when he attempted to detain A.C., he had no reasonable suspicion A.C. was involved in criminal activity. The People disagree, contending Hernandez had the reasonable suspicion necessary to detain A.C. for questioning regarding his involvement in the August 7 robbery. The People have the better argument.
"Where the facts bearing on the legality of a detention are undisputed . . . the appellate court is faced with a question of law. [Citation.] We independently measure the undisputed facts against constitutional standards to determine the legality of the detention." (In re Eskiel S. (1993) 15 Cal.App.4th 1638, 1641.) " 'The Fourth Amendment permits brief investigative stops . . . when a law enforcement officer has "a particularized and objective basis for suspecting the particular person stopped of criminal activity." [Citations.] The "reasonable suspicion" necessary to justify such a stop "is dependent upon both the content of information possessed by police and its degree of reliability[,]" . . . tak[ing] into account "the totality of the circumstances . . . ." [Citation.] Although a mere " 'hunch' " does not create reasonable suspicion, . . . the level of suspicion the standard requires is "considerably less than proof of wrongdoing by a preponderance of the evidence," and "obviously less" than is necessary for probable cause [citation].' (Navarette v. California (2014) 572 U.S. ___ [134 S.Ct. 1683, 1687] . . . ; accord, [(People v.] Souza, supra, 9 Cal.4th at p. 229-231.) '[W]here a reasonable suspicion of criminal activity exists, "the public rightfully expects a police officer to inquire into such circumstances 'in the proper exercise of the officer's duties.' " ' " (People v. Brown (2015) 61 Cal.4th 968, 981.) We must consider the totality of the circumstances and remember "[a] determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct." (United States v. Arvizu (2002) 534 U.S. 266, 277; accord, Brown, at pp. 985-986.) " 'What is required is not the absence of innocent explanation, but the existence of "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." ' [Citation.] Although each of a series of acts may be ' "perhaps innocent in itself," ' taken together, they may ' "warrant[] further investigation." ' (Arvizu, at p. 274 . . . .) The purpose of the detention is to resolve the ambiguity by allowing the officer to briefly investigate further." (Brown, at pp. 985-986, italics omitted.) The evidence relied on by police officers to justify the seizure of a person "must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." (United States v. Cortez (1981) 449 U.S. 411, 418; People v. Souza, supra, 9 Cal.4th at p. 240.)
When an officer has a legal right to detain an individual, the individual, "if . . . aware of the officer's desire, ha[s] the concomitant duty to permit himself to be detained." (In re Gregory S. (1980) 112 Cal.App.3d 764, 778.) A minor's flight which delays the officer's ability to effect a lawful detention violates section 148, provided the person fleeing knows the officer wishes to detain him. (Gregory S. at p. 778; People v. Allen (1980) 109 Cal.App.3d 981, 985-987.) However, "[n]onviolently resisting an unlawful detention is not a criminal offense, and flight in response to an attempted unlawful detention does not furnish cause to detain." (In re Eskiel S., supra, 15 Cal.App.4th at p. 1642; accord, In re Michael V. (1974) 10 Cal.3d 676, 681.)
In denying A.C.'s motion to suppress, the trial court relied on Hernandez's observation that A.C. matched "at least part" of the robbery suspect's description, A.C. was found "adjacent" to the scene of the robbery, and A.C. fled when approached by police. A police officer may "stop and question a person if there are reasonable grounds to believe the person is wanted for past criminal conduct." (United States v. Cortez, supra, 449 U.S. at p. 417, fn. 2, italics added; accord, United States v. Hensley (1985) 469 U.S. 221, 227-228.) Yet, A.C. insists we must ignore his location and the similarities between his appearance on August 10 and the description Hernandez had of one suspect in the August 7 robbery because "[A.C.] is thin rather than chubby," and because A.C. was seen in the area of the robbery three days after it occurred. A.C. also discounts the circumstance that he was wearing a red sweatshirt, with white writing, because "[o]ne cannot be expected to be wearing the same clothes three days later." A.C.'s position is that his resemblance to the robbery suspect and his proximity to the scene of the robbery provide no reasonable suspicion for a detention.
That three days had passed since the August 7 robbery is surely relevant to the reasonableness of an officer's suspicions and the exigency of the circumstances, but we know of no authority suggesting the bright line rule A.C. suggests. (See United States v. Hensley, supra, 469 U.S. at pp. 223-224, 229 [upholding defendant's brief detention 12 days after armed robbery on basis of a " 'wanted flyer' " issued by another police department]; United States v. Cortez, supra, 449 U.S. at p. 417, fn. 2 ["an officer may stop and question a person if there are reasonable grounds to believe the person is wanted for past criminal conduct"]; People v. Dolly (2007) 40 Cal.4th 458, 466 [assault may have technically ended but when suspect "remained at large and had use of his vehicle" he "remained 'extremely mobile and potentially highly dangerous' " both to original victim and to others in area].)
In United States v. Hensley, supra, 469 U.S. 221, the United States Supreme Court acknowledged that "[a] stop to investigate an already completed crime does not necessarily promote the interest of crime prevention" and that "the exigent circumstances which require a police officer to step in before a crime is committed or completed are not necessarily as pressing long afterwards. . . . [O]fficers making a stop to investigate past crimes [also] may have a wider range of opportunity to choose the time and circumstances of the stop." (Id. at pp. 228-229.) Nonetheless, the court concluded that "[i]t is enough . . . if police have a reasonable suspicion, grounded in specific and articulable facts, that a person they encounter was involved in or is wanted in connection with a completed felony." (Id. at p. 229.) "Where police have been unable to locate a person suspected of involvement in a past crime, the ability to briefly stop that person, ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice. Restraining police action until after probable cause is obtained would not only hinder the investigation, but might also enable the suspect to flee in the interim and to remain at large." (Id. at p. 229.) "[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification, [citation], to pose questions to the person, or to detain the person briefly while attempting to obtain further information. [Citation.] If the flyer has been issued in the absence of a reasonable suspicion, then a stop in the objective reliance upon it violates the Fourth Amendment." (Id. at p. 232.)
In the instant case, the juvenile court could reasonably infer from Hernandez's testimony that the victim of the August 7 robbery gave a description of the robbery, its location, and the suspects involved, which when communicated to Hernandez and combined with Hernandez's observations on August 10, gave rise to a reasonable suspicion that A.C. had been involved in the robbery.
The record does not support A.C.'s assertion that "the only similarity between [himself] and one of the robbery suspects was the sweatshirt." A vague description does not provide reasonable suspicion to stop every person falling within that vague description. (In re Carlos M. (1990) 220 Cal.App.3d 372, 381-382.) However, a more detailed description, including such characteristics as age, gender, race, hair or eye color, attire, height and build combined with additional suspicious circumstances, may reasonably justify a detention. (Id. at p. 382; People v. Fields (1984) 159 Cal.App.3d 555, 564 [detention lawful where the defendant matched victim's description of suspect's race, gender, height, general age, and attire]; People v. Craig (1978) 86 Cal.App.3d 905, 911 ["a general description has been held sufficient justification for stopping and questioning persons meeting that description"].) A defendant need not perfectly match a given description, so long as the description is substantially the same as the defendant's appearance. (Craig, at pp. 911-912.) A.C. matched several aspects of the sufficiently detailed suspect description from the prior robbery. Specifically, A.C. is an African-American male, average height, and was wearing a red sweatshirt with white lettering. It is not determinative that A.C. did not appear to be "chubby." One of A.C.'s companions was also an African-American male and described by Hernandez as "thin." Thus, the juvenile court could reasonably find the similarities, in conjunction with the fact that A.C. was seen in the same general area where the robbery occurred, gave Hernandez reasonable suspicion to briefly detain A.C. for questioning.
A.C. is correct that the three-day-old robbery report, did not transform El Cerrito Plaza "into a no man's land in which any passerby is fair game for a roving police interrogation." (In re Tony C. (1978) 21 Cal.3d 888, 897.) El Cerrito Plaza is a shopping center, adjacent to a BART station. Although that may suggest many males meeting the general description of the robbery suspects would pass through the area over three days, Hernandez could also reasonably believe the individuals involved in the August 7 robbery, who were still at large, might return to a place where they could easily victimize additional individuals. " '[T]he possibility that the circumstances are consistent with lawful activity does not render a detention invalid, where the circumstances also raise a reasonable suspicion of criminal activity. The public rightfully expects a police officer to inquire into such circumstances; indeed the principal function of the investigative stop is to resolve that ambiguity.' " (People v. Conway (1994) 25 Cal.App.4th 385, 390.)
A.C. misplaces his reliance on In re Tony C., supra, 21 Cal.3d 888 (superseded on other grounds by Cal. Const., art. I, § 28). In Tony C., a highway patrol officer stopped two African-American youths walking on the sidewalk in the middle of the day because he had "learned informally" the previous day that several burglaries had been reported in the area and " 'three male blacks' were being sought." (Id. at p. 896.) The reviewing court found the detention unsupported by reasonable suspicion because "[t]here is nothing suspicious in the sight of two school children walking along the sidewalk during the noon hour." (Id. at p. 897.) "To [uphold the detention] would authorize the police to stop and question every black male, young or old, in an area in which a few black suspects were being sought. Such wholesale intrusion into the privacy of a significant portion of our citizenry would be both socially intolerable and constitutionally impermissible." (Id. at p. 898, fn. omitted.) The facts before us are readily distinguishable.
In any event, Hernandez's suspicion at the time of the attempted detention did not rest solely on A.C.'s location and resemblance to one suspect's description. A detention occurs when an officer initiates a show of authority and " 'if "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," ' or ' "otherwise terminate the encounter" ' [citation], and if the person actually submits to the show of authority." (People v. Brown, supra, 61 Cal.4th at p. 974.) No detention was attempted until Hernandez ordered A.C. to stop. Before that time, A.C. ran in the opposite direction when Hernandez pulled into the gas station, without his emergency lights activated, and exited his vehicle approximately 20 feet in front of the three men. (See In re Kemonte H. (1990) 223 Cal.App.3d 1507, 1511 ["The Fourth Amendment has not been violated where an officer approaches an individual on a public street"]; cf. Brown, at pp. 978-980 [detention occurred when officer stopped, with emergency lights activated, behind the defendant's parked car].)
A.C.'s flight on its own did not furnish the minimal level of objective justification needed for a detention. (Illinois v. Wardlow (2000) 528 U.S. 119, 125.) However, "nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.] Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." (Id. at pp. 124-125.) We must consider the totality of the circumstances and remember "[a] determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct." (United States v. Arvizu, supra, 534 U.S. at p. 277.) Here, the totality of the circumstances—A.C.'s appearance, location, and flight—provided reasonable suspicion A.C. had engaged in criminal conduct.
Hernandez had a legal right, in fact a duty, to detain A.C.; therefore, A.C., "if he was aware of the officer's desire, had the concomitant duty to permit himself to be detained." (In re Gregory S., supra, 112 Cal.App.3d at p. 778.) A.C.'s refusal to obey Hernandez's order to stop and his continued flight thereafter, delayed Hernandez's performance of his lawful duties, violated section 148, subdivision (a)(1), and gave Hernandez probable cause to arrest A.C. (People v. Allen, supra, 109 Cal.App.3d at pp. 985-987.) Substantial evidence supports the juvenile court's implicit finding Hernandez was lawfully performing his duties when A.C. delayed the detention. B. Possession of a Firearm by a Minor
A.C. also challenges the sufficiency of the evidence supporting the true finding on count one—possession of a firearm by a minor. Section 29610 provides: "A minor shall not possess a pistol, revolver, or other firearm capable of being concealed upon the person." A.C. maintains there is insufficient evidence he possessed the gun found along the BART pathway.
Possession may be actual or constructive. (In re Daniel G. (2004) 120 Cal.App.4th 824, 831; People v. Cordova (1979) 97 Cal.App.3d 665, 670.) "Actual possession means the object is in the defendant's immediate possession or control," such as when the defendant is holding a weapon. (Daniel G., at p. 831.) Exclusive possession is not required. (People v. Rushing (1989) 209 Cal.App.3d 618, 622.) Constructive possession is shown when "the object is not in the defendant's physical possession, but the defendant knowingly exercises control or the right to control the object." (Daniel G., at p. 831.) Possession for even a limited time and purpose may be sufficient to show actual possession. (Ibid. [witness's testimony that she saw weapon repeatedly passed back to the defendant created "reasonable inference that the weapon was under [the defendant's] control and was therefore in his actual possession"].) Possession may be shown by circumstantial evidence. (Ibid.; Cordova, at pp. 669-670.)
A.C. relies on the "transitory possession" defense and insists his admitted momentary touching of the firearm did not constitute possession. (See People v. Martin (2001) 25 Cal.4th 1180 (Martin); People v. Mijares (1971) 6 Cal.3d 415 (Mijares); People v. Hurtado (1996) 47 Cal.App.4th 805.) Mijares was a narcotics possession case, in which our Supreme Court concluded momentary or transitory possession of a narcotic for the sole purpose of disposing of it established a defense. (Mijares, at pp. 419-422.) The defendant was observed leaning inside a parked car and slapping the passenger (a friend) across the face. Moments later, the defendant was seen removing an object from the passenger compartment of the car, which he threw into a nearby field. (Id. at p. 417.) The defendant testified he believed his friend was overdosing and needed medical help. Suspecting the friend might still have narcotics on his person, the defendant looked inside the friend's pockets, found the narcotics outfit, and threw it out of the car before driving to a fire station for help. After his friend was taken away by ambulance, the defendant waited at the station for the police. The police recovered the object tossed into the field, determined it contained heroin, and then arrested the defendant for possession of narcotics. (Id. at pp. 417-419.)
Our Supreme Court explained: "[I]n throwing the heroin out of the car, [the defendant] maintained momentary possession for the sole purpose of putting an end to the unlawful possession of [his friend]." (Mijares, supra, 6 Cal.3d at p. 420.) The physical control inherent "during the brief moment involved in abandoning the narcotic" was not possession, under Health and Safety Code former section 11500, because otherwise "manifest injustice to admittedly innocent individuals" could result. (Mijares, at p. 422.) To further illustrate the point, the court also proposed a hypothetical involving the witness who saw the defendant throw the heroin. Had she "briefly picked up the package and identified the substance as heroin and then placed the outfit back on the ground, during the time after which she had realized its narcotic character she, too, would have been guilty of possession under an unduly strict reading of [the statute], notwithstanding the fact that her transitory handling of the contraband might have been motivated solely by curiosity." (Ibid.) The Mijares court refused to "read the possession statutes to authorize convictions under such guileless circumstances." (Ibid.)
In Martin, supra, 25 Cal.4th 1180, which was also a drug possession case, our Supreme Court observed that the transitory possession defense "serves the salutary purpose and sound public policy of encouraging disposal and discouraging retention of dangerous items such as controlled substances and firearms." (Id. at p. 1191, italics added.) In People v. Hurtado, supra, 47 Cal.App.4th 805, the Sixth District Court of Appeal extended the transitory possession defense to possession of a firearm by a felon. (Id. at pp. 807-808, 810, 814.)
We need not decide whether A.C.'s admitted touching of the gun satisfies the requirements of the transitory possession defense because the task is relevant only if we reweigh the evidence. The juvenile court made an explicit finding that it did not believe A.C.'s version of events. The court also stated its inference that A.C. "had the gun on him." If substantial evidence supports the latter finding, we need not decide whether the juvenile court was correct in deeming A.C.'s claim of momentary touching sufficient to constitute possession.
Reasonable inferences support the court's finding that A.C. did not just touch the gun, but "had [it] on him." The clean and dry gun was found along the BART path, 150 feet from the Ross store, where A.C. had, immediately prior to police recovery of the gun, been attempting to evade Hernandez. Compatible ammunition was found on one of A.C.'s companions. From these circumstances, combined with A.C.'s flight and initial false statement to Thepkaysone, the juvenile court could reasonably infer that A.C. possessed the gun and abandoned it on the BART path in an effort to avoid responsibility for his illegal possession. The transitory possession defense does not apply to "individuals who, fearing they are about to be apprehended [by police], remove contraband from their immediate possession." (Mijares, supra, 6 Cal.3d at p. 422; accord, Martin, supra, 25 Cal.4th at p. 1185, fn. 5.) When viewed in the light most favorable to the People, substantial evidence supports the juvenile court's finding.
As noted ante, A.C. denied knowledge of the gun until confronted with possible testing for fingerprint evidence. Thereafter, he admitted seeing and briefly touching the gun on the BART path. A.C. also said he ran when he saw Hernandez's police car, because "he felt weird, scared, and he was thinking about . . . the last time he was incarcerated or arrested." --------
III. DISPOSITION
The judgment is affirmed.
/s/_________
BRUINIERS, J. WE CONCUR: /s/_________
SIMONS, Acting P. J. /s/_________
NEEDHAM, J.