Filed 2/14/22 P. v. Toro CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

IGNACIO TORO, JR.,

Defendant and Appellant. B309431

(Los Angeles County

Super. Ct. No. BA484922 )

APPEAL from a judgment of the Superior Court of Los Angeles

County, Michael Garcia , Judge. Affirmed

.

Justin Behravesh , under appointment by the Court of Appeal, for

Defendant and Appellant.

Rob Bonta , Attorney General, Lance E. Winters, Chief Assistant

Attorney General, Susan Sullivan Pithey, Assistant Attorney General,

Steven D. Matthews , Supervising Deputy Attorney General

, and

Michael J. Wise , Deputy Attorney General, for Plain tiff and

Respondent.2

Defendant Ignacio Toro, Jr.

, appeals from the judgment entered

following the denial of his motion to suppress evidence (Pen. Code,

§ 1538.5), 1 and no contest plea to misdemeanor vandalism (§ 594, subd.

(a)) . He contends the trial court erred by denying his motion to

suppress evidence obtained from a detention and patdown search he

asserts were unlawful . We affirm.

BACKGROUND

The District Attorney of the County of Los Angeles filed an

information alleging that on or about January 28, 2020, defendant

committed felony vandalism under $400 for the benefit of a criminal

street gang, to wit, the Varrio Nuevo Estrada (VNE) gang. 2 ( § § 594,

subd. (a) , 186.22, subd. (d), 186.30 , subd. (a)

. )

On February 11, 2020, d efendant filed a motion under section

1538.5 to suppress the followin g pieces of evidence: (1) statements he

had made to investigating officers ; (2) evidence regarding the officer’s

“observations relating to graffiti” ; and (3) evidence of a spray paint can

and top that had been recovered at the scene. Defendant asserted t he

evidence resulted from an unlawful detention and patdown search

. The

1 Subsequent references to statutes are to the Penal Code.

2 Vandalism causing less than $400 in damages is a misdemeanor.

( § 594, subds. (a)

, (b)(2)(A)

. ) However, the gang allegation transforms it into

a felony wobbler , punishable by one year in county jail or by imprisonment in

state prison for one, two or three years. ( § 186.22, subd. (d)

, count 1

. ) The

prosecution elected to file the vandalism charge as a felony.3

prosecution opposed the motion and requested that the court deny it in

its entirety.

At the March 2, 2020 hearing on defendant’s motion, the

prosecution called as witnesses Los Angeles Police Officers Keoni Smith

and Ruben Zaragoza

. Both officers testified that a round 11:20 p.m. on

January 28, 2020, they were inside a patrol car with another partner

conducting crime suppression . As the car ap proached an intersection

,

the officers observed two individuals standing on the corner: defendant,

who was seen wearing an “oversize shirt with oversize shorts,” and an

individual Officer Zaragoza recognized as a 14

- year

- old member of

Varrio Nuevo Estrada , a criminal street gang also known as VNE.

“[A]lmost simultaneously ” after observing both individuals, Officer

Smith saw “black gang graffiti directly behind them ” on two separate

walls. The first piece of graffiti was on the wall of a local market

, and

stated “ESVN

. ” The second piece of graffiti, appearing on a door to

another business, stated “V and E.” A ccording to Officer Smith,

“ESVN” stands for Eastside Varrio Nuevo Estrada , and “V and E”

stands for Varrio Nuevo Est rada

. The officers also located a third piece

of graffiti (“VNE Block”) appearing on a white building across the street

from where defendant was standing

.

The officers decided to stop both individuals for a possible curfew

violation under Los Angeles Municipal Code section 45.03. 3 The patrol

3 Section 45.03(a) of the Los Angeles Municipal Code generally provides

that no minor under the age of 18 years may be present in or upon any public

street, curb area, public place or building after 10:00 p.m. Before an officer

may take action to enforce the curfew ordinance, s ection 45.03(c) mandates4

vehicle stopped , and Officer s Smith and Zaragoza got out of the vehicle

and told defendant and his associate to stop and face the wall.

Officer Smith a pproach ed defendant and secured his hands behind

h is back. Officer Smith then decided to pat down defendant , as she and

her partner “were in a heavy gang location, speaking with a known

gang member who was wearing clothing [that could easily] conceal

weapons.” From her experience as a gang detail officer, Officer Smith

understood that in a tandem of individuals who spray paint ed gang

graffiti

, “one of them, or both of them [ could be ] carrying a weapon.”

Officer Smith told defendant to spread his legs

. When he

complie d, Officer Smith observed a lid to a spray paint can in his right

pocket. Officer Smith then patted defendant down and located an

aerosol spray can with black paint. When handcuffing defendant

,

Officer Smith noticed black paint on his hands. The color m atched the

gang graffit i, which Officer Smith believed was fresh given the smell

emanating from the walls and the “tacky” feel of the paint

.

Defendant told the officers he was not a juvenile. He did,

however, speak about his membership in VNE

, and admitted to putting

up the “VNE Block” graffiti across the street.

Following the officers’ testimony and argument by counsel, the

court denied defendant’s motion to suppress. Months later, defendant

entered a plea of no contest to an amended count of misdemeanor

vandalism. As part of the plea agreement, defendant agreed to

that the officer asks the apparent offender’s age and reason for being in the

public place during curfew hours.5

summary probation for two years (a term later reduced to one year in

light of Assembly Bill No. 1950 ) . The court accepted the plea, dismiss ed

the gang allegation, suspended imp osition of sentence, and placed

defendant on summary probation.

Defendant timely appealed from the judgment of conviction

following his plea of no contest. (See § 1538.5.)

DISCUSSION

Defendant contends the trial court err ed by denying his motion to

suppress evidence that had been discovered during and after his

detention and patdown search

. As we shall discuss, we discern no error

in the trial court’s ruling.

A. Governing Law and Standard of Review

Under section 1538.5, subdivision (a), a defendant may move to

suppress evidence gathered in violation of the state or federal

Constitution. The United States and California Constitutions bar the

exclusion of evidence obtained as a result of an unreasonable search or

seizure. (See U.S. Const., 4th & 14th Amends.; Cal. Const., art. I, § 13;

People v. Camacho (2000) 23 Cal.4th 824, 830.)

When reviewing a ruling on an unsuccessful motion to suppress

evidence, we defer to the trial court ’ s express and implied factual

findings, upholding them if they are supported by substantial evidence ;

we then independently exercise our independent judgment in

determining the legality of a search or seizure on the f acts so found

.

( People v. Tully (2012) 54 Cal.4th 952, 979 ( Tully ) ; People v. Lomax6

(2010) 49 Cal.4th 530, 563 ( Lomax ) .) We also examine “the correctness

or incorrectness of the trial court’s ruling, not the reasons for its ruling.

[Citations.]” ( People v. Dimitrov (1995) 33 Cal.App.4th 18, 27 .)

B. The Detention

Defendant contends that he was illegally detained and that all of

the evidence obtained from the detention should have been suppressed.

Defendant is mistaken

.

“ It is settled that circumstances short of probable cause to make

an arrest may justify a police officer stopping and briefly detaining a

person for questioning or other limited investigation.” ( In re Tony C.

(1978) 21 Cal.3d 888, 892 ( Tony C. ), citing Terry v. Ohio (1968) 392 U.S.

1, 22 ( Terry ) .) “ 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.’ [Citation.] The standard takes into

account ‘the totality of the circumstances

— the whole pi cture.’

[Citation.] Although a mere ‘“hunch”’ does not create reasonable

suspicion [citation] , the level of suspicion the standard requires is . . .

‘obviously less’ than is necessary for probable cause.” ( Navarette v.

California (2014) 572 U.S. 393, 397.) This standard necessarily

precludes a “divide

- and

- conquer analysis .” ( U.S. v. Arvizu (2002) 534

U.S. 266, 274 (

Arvizu ) .)

“ [ T ] o 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 has7

taken place or is occurring or about to occur, and (2) the person he

intends to stop or detain is involved in that activity. Not only m ust he

subjectively entertain such a suspicion, but it must be objectively

reasonable for him to do so: the facts must be such as would cause any

reasonable police officer in a like position, drawing when appropriate on

his training and experience [citati on], to suspect the same criminal

activity and the same involvement by the person in question.” ( Tony C.

,

supra

, 21 Cal.3d at p. 893.) “‘If there is a legitimate reason for the stop,

the subjective motivation of the officer is irrelevant.’” ( Tully

, supra

, 54

Cal.4th at p. 980

, quoting Lomax

, supra

, 49 Cal.4th at p. 564 .)

Here, the parties do not dispute that before detaining defendant

and his associate, the officers had observed the following: (1) defendant

was standing on a public sidewalk next to a n individual known to be a

juvenile at 11:20 p.m. at night; (2) both individuals were in an area

known for heightened gang activity; (3) the individual standing next to

defendant was a known member of VNE; and (4) both individuals were

st anding near gang graffiti specifically identifying VNE.

In light of these facts, defendant appears to concede that that his

initial detention was lawful insofar as the officers were motivated by a

possible curfew violation. He asserts however that his detention

became unlawful when the officers continued to detain him without

ascertaining his age.

Defendant’s argument would have us ignore the totality of the

evidence by focusing on the subjective motivation of the investigating

officers. Such a “div ide

- and

- conquer analysis” is not the standard for

determining whether his detention was reasonable. (See Tully

, supra

,8

54 Cal.4th at p. 980; Lomax

, supra , 49 Cal.4th at p. 564; Arvizu

, supra

,

534 U.S. at p. 274.)

The totality of facts known or apparent to the officers amply

supported their detention of defendant and his associate to investigate

gang vandali sm

. In this regard, In re Stephen L. (1984) 162 Cal.App.3d

257 ( Stephen L. ) is instructive

. In that case, investigating officers

located the defendant and a group of individuals standing in close

proximity to a wall with “‘freshly painted gang type graffiti.’” ( Id. at

p. 259.) Several individuals in the group

, and not the defendant, were

recognized as members of the gang that had been identified in the

graffiti

. ( Ibid. ) The officers detained the group, and upon a patdown

search of defendant, recovered a folding knife from his belt, which had

been covered by the defendant’s shirt and jacket. ( Ibid. )

As in this case, the defendant in Stephen L. contended on appeal

that he was illegally detained and subjected to an unlawful patdown

search. (162 Cal.App.3d at p. 260.) Rejecting both contentions, the

court of appeal was “mystified, after a recital of th e foregoing facts, just

what improvement in conduct we are being urged to require of police

officers in a situation such as here presented.

. . . [¶]

. . . The record

abounds with the required articulable facts for a detention.” ( Id. at

pp. 260

– 261.)

Defendant concedes in this case that under Stephen L.

, “standing

next to a wall with graffiti can support the existence of reasonable

suspicion” to detain a person for possible vandalism. To distinguish

this case from Stephen L.

, defendant assert s he was not stopped9

“directly” in front of the gang graffiti, and was instead a “reasonable

distance away from the graffiti.” In support of such argument,

defendant has consistently referred to dashcam footage from the

officers’ patrol vehicle

. But that footage does not appear to have been

admitted into evidence in the trial court. 4 “Matters not presented by

the record cannot, of course, be considered on the suggestion of counsel

in briefs or in affidavits attached thereto.” ( People v. Szeto (1981) 29

Cal.3d 20, 35.)

The fact remains that defendant was seen in an area from which

Officer Smith could “almost simultaneously ” see various pieces of fresh

gang graffiti referencing the very same gang in which defendant’s

4 At the motion to suppress hearing, the reporter’s transcript reflects

that portions of the video were play ed by defense counsel during the cross

examination of Office Smith. D efense counsel marked the dashcam footage

as an exhibit (“Defense Exhibit A”) but did n ot request that it be introduce d it

into evidence. At the change of plea hearing months later, defense counsel

requested “to introduce the exhibit . . . into the court file from the 1538.5

motion” for “housekeeping” purposes. It does not appear that th e court ruled

on the request to admit the footage into evidence during either hearing.

On September 13, 20 21, counsel for defendant filed a request in the

superior court to transfer “Defense Exhibit A from the . . . motion to suppress

hearing, which was ad mitted into evidence at [his] change of plea hearing.”

In response, on October 25, 2021, the clerk of court filed a certificate with this

court in which she declared that the exhibit could not be located in the court

file , courtroom, or clerk’s office.

This court has independently procured from the clerk of the superior

court and viewed Defense Exhibit A. Whatever meaning one gives to the

phrase “directly behind them on the walls,” the video footage confirms Officer

Smith’s observation that defendant a nd his cohort were seen standing in

front of, and then walking away from, gang graffiti (which we note is

considerable in size).10

associate was a member. Defendant has cited no authority, and we are

aware of none, in which the reasonableness of a detention was

exclusively determined by an individual’s proximity to graffiti or other

vandalism. As we h ave discussed, defendant’s prox imity to fresh

graffiti was but one fact among the totality of facts known or apparent

to the officers from which they could detain defendant for vandalism

.

C. The Patdown

Defendant also contends that his patdown search was not

supported by reasonable suspicion. We disagree.

Under Terry

, a police officer is authorized to conduct “a reasonable

search for weapons for the protection of the

. . . officer, where he has

reason to believe that he is dealing with an arm ed and dangerous

individual, regardless of whether he has probable cause to arrest the

individual for a crime. The officer need not be absolutely certain that

the individual is armed; the issue is whether a reasonably prudent man

in the circumstances woul d be warranted in the belief that his safety or

that of others was in danger. [Citations.] And in determining whether

the officer acted reasonably in such circumstances, due weight must be

given, not to his inchoate and unparticularized suspicion or ‘hun ch,’ but

to the specific reasonable inferences which he is entitled to draw from

the facts in light of his experience.” ( Terry

, supra

, 392 U.S. at p. 27.)

We again draw guidance from Stephen L. As discussed

, the

officers in Stephen L. detained and patted down a group of individuals

suspected of gang vandalism. (162 Cal.App.3d at p. 260.) An officer

testified he had patted down the group for “safety purposes” because t he11

officers were outnumbered, and “street gang members have been known

in the past to carry weapons.” ( Ibid. ) F inding the patdown search of

the defendant reasonable, the court relied on the officer’s testimony

,

and noted that the group was in an area known for gang activity and

weapon usage. ( Id. at pp. 259, 260 .)

The circumstances present in Stephen L. are also present in this

case. T he officers in this case , though not outnumbered, were concerned

for their safety due in part to detaining a known gang member in an

area known for heightened gang activity

. From prior experience,

Officer Smith suspected that at least one of the individuals detained for

gang graffiti would be carrying a weapon

. (See In re H.M. (2008 ) 167

Cal.App.4th 136, 146 [“[o]fficers in an area plagued by violent gang

activity need not ignore the reality that persons who commit crimes

there are likely to be armed”].)

In addition to the foregoing

, the fact that defendant was wearing

oversized clothing large enough to conceal a weapon was enough to

justify a patdown search. (See People v. Collier (2008) 166 Cal.App.4th

1374 , 1377, fn. 1 [“the wearing of baggy clothing, coupled with other

suspicious circumstances, .

. . furnishes the requisite facts to support a

patdown for weapons so that the [investigation] could be safely

performed”] ; People v. Lopez (2004) 119 Cal.App.4th 132, 137 [“l oose,

baggy” clothes capable of concealing a weapon properly considered as

one factor supporting decision to conduct patdown search]. )

People v. Dickey (1994) 21 Cal.App.4th 952, on which defendant

relies is inapposite . In that case, the court held that a patdown search12

of a motorist was not justified in light of the facts that the motorist had

no identification, exercised his Fourth Amendment right and refused to

allow the deputy to search his vehicle, was nervous and sweating, and

ha d baking powder in a film canister that he used to brush his teeth.

( Id. at pp. 954

– 955.) The court stated that none of these considerations,

considered singly or in combination, would lead an officer to reasonably

believe the defendant was armed and cou ld use the weapon against

him

. ( I d. at p. 956.)

Defendant’s situation is readily distinguishable. T he

circumstances in this case, particularly activity by a known gang

member in a location known for gang activity, “more than warranted

the cursory search. ” ( Stephen L.

, supra , 162 Cal.App.3d at p. 261; see

id. at p. 260 [“Failure to cursorily search suspects for weapons . . . in an

area where gang activity and weapon usage is known from the officers’

past experience would be most careless”]. )

In sum

, we conclude under the totality of the circumstances that

the officers’ actions in detaining defendant and patting him down were

reasonable. Thus, the court properly denied defendant’s motion to

suppress. 5

//

//

//

//

5 In light of our conclusion, we do not consider defendant’s contention

that the denial o f his motion constituted prejudicial error.13 DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, Acting P. J.

We concur:

COLLINS , J.

CURREY

, J.