Filed 4/23/15 P. v. Jones CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,
Plaintiff and Respondent,

v.
MICHAEL ANTHONY JONES,
Defendant and Appellant. B255728
(Los Angeles County Super. Ct. No. GA090986)

APPEAL from a judgment of the Superior Court of Los Angeles County. Jared D. Moses, Judge. Reversed an d remanded with directions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews, Supervisi ng Deputy Attorney Gene ral and Timothy M. Weiner, Deputy Attorney General for Plaintiff and Respondent.

_______________2 Appellant Michael A. Jones was convicted, following a jury trial, of one count of possession of a controlled substa nce in violation of Health and Safety Code section 11350, subdivision (a) and one count of possession of a smoki ng device in violation of Health and Safety Code section 11364.1, subd ivision (a)(1). The trial court found true the allegations that appellant had suffered three prior serious or violent felony convictions within the meaning Penal Code sections 667, subdivisions (b) th rough (i) and 1170.12 (the Three Strikes law) and had served six prison terms within the meaning of section 667.5, subdivision (b). The trial court senten ced appellant to the midterm of two years, doubled to four years pursuant to the Three Strikes law, pl us four consecutive one-year terms pursuant to section 667.5. Appellant appeals from the judgment of conviction, contending the trial court erred in denying his motion to suppress eviden ce made pursuant to Penal Code section 1538.5. We agree, and revers e the judgment of conviction.

Facts 1 On September 17, 2013, at about 1:30 a.m., Los Ange les County Sheriff’s Deputy Jeffery Johnsen and his partner Deputy Klinski were on patrol in Monrovia when they observed appellant walking down the middle tu rn lane of Mountain Avenue. At that location, Mountain Avenue is a three-lane st reet, with one lane for northbound traffic,
one lane for southbound traffic and a middle la ne for turning. Basically, the area was a
residential one. Appellant turned off Mountai n Avenue and onto Meridian Street. Deputy Johnsen believed that appellant was in “[v]iolation of walking in the middle of the road, 21956, I believe of the Vehicle Code.” Deputy Jo hnsen and his partner “stopped him for the subsequent violation and were going to warn or cite him.”

1 These facts are taken from the hearing on appellant’s motion to suppress, held on December 4, 2013. After appellant’s motion was denied, appellant was tried by a jury. Neither party points to any additional relevant facts introduced at trial.3 The two deputies pulled up behind appellant in their marked patrol car and “asked him—or told him to stop.” Deputy Klinski “y elled” at appellant from the window of the patrol car. Deputy Johnsen did not remember what his partner yelled. Whatever he yelled caused appellant to stop. Appellant “s topped right where he was.” The deputies then directed appellant to come to the patrol car. Appellant complied. When appellant reached the patrol car, De puty Johnsen first aske d appellant if he was on probation or parole. When appellant replied that he was not, Deputy Johnsen asked if he had anythi ng illegal on him. Appellant rep lied that he had pipes. Deputy Johnsen then asked if the pipes were for marijuan a. Appellant stated they were for crack. Deputy Johnsen then asked for permission to search appellant. Appellant consented. The search uncovered the pi pes and a brown bottle containing 18 white pills. Based on the numbers and markings on the pills, Deputy Johnsen determined that the pills were hydrocodone. The deputies arrested appellant.

Discussion Appellant contends the trial court erre d in denying his motion to suppress evidence made pursuant to Penal Code s ection 1538.5. He contends that his initial detention was not valid, and his subsequent consent was not voluntary.
While a defendant has the burden of fili ng a motion asserting the absence of a warrant, “[i]t is the People’s burden to justify a warrantless search. ( Vale v. Louisiana (1970) 399 U.S. 30, 34; People v. Johnson (2006) 38 Cal.4th 717, 723; People v.
Williams (1999) 20 Cal.4th 119, 127.)” ( People v. Schmitz (2012) 55 Cal.4th 909, 915 fn. 4.) The standard of review of a trial court’s ruling on a motion to suppress is well
established. We defer to the trial court’s factual findings, express or implied, where supported by substantial evidence. In de termining whether, on the facts so found, the
search or seizure was reasonable under th e Fourth Amendment, we exercise our independent judgment. ( People v

. Glaser (1995) 11 Cal.4th 354, 362.)4 “When ruling on a suppression motion, ‘the power to judge th e credibility of the witnesses, resolve any conflicts in the tes timony, weigh the evidence and draw factual inferences, is vested in the trial court.’ [Citations.] On appeal, the facts must be reviewed in the light most favorable to the judgment, and the trial court’s finding must be upheld if supported by s ubstantial evidence.” ( People v. Jones (1989) 209 Cal.App.3d 725, 730-731.)

a. Ruling
The court ruled: “The officer’s testim ony was that the location was—I believe he did testify was residential, as I recall on questioning from [appellant’s counsel], which would technically place this outside of . . . 21 956. So it appears there may be a tentative
Fourth Amendment violation here.” 2 The court continued: “But Herring [ v. United
States (2009) 555 U.S. 13 5], in my view, really radica lly changed the way we litigate motions to suppress. And then even if there is a Fourth Amendment violation, if the officer’s conduct is, at wors e, negligent because they’re relying on perhaps a Vehicle Code section that does not technically fit the circumstances, exclusion is still not the remedy.” The court found: “In this case, at worse, the officer was negligent in his interpretation of the statute that he felt that the defendant was violating.”

b. Mistake of law
Vehicle Code 3 section 21956, subdivision (a), pr ovides: “No pedestrian may walk upon any roadway outside of a business or resi dence district otherwise than close to his

2 Thus, the trial court made no finding that Deputy Johnsen believed the area was not residential, much less a finding that the character of the area was ambiguous and any mistake as to its nature by De puty Johnsen would be reasonabl e. The prosecutor did not argue in the trial court that Deputy Johnsen made a mistak e of fact and the Attorney General does not make such an argument on a ppeal. We see no evid ence that Deputy Johnsen made a mistake of fact about the char acter of the area, and no basis to conclude that such a mistake woul d have been reasonable.

3 All further statutory references are to th e Vehicle Code unless otherwise specified.5 or her left-hand edge of the roadway.” As our colleagues in the Third District Court of Appeal have explained, “Since section 21956 , subdivision (a), only restricts pedestrians from walking on roadways outs ide of business or residential districts, the logical implication (taking the obverse of this secti on) is that inside a business or residential district, a pedestrian may indeed wa lk in the middle of the road.” ( People v. Cox (2008) 168 Cal.App.4th 702, 708-709, italics omitted.) The trial court expressly found that Deput y Johnsen testified that the location was residential, and impliedly found that the area was residential. We defer to the trial court’s findings of fact if supported by substantial evidence. ( People v

. Glaser, supra, 11 Cal.4th at p. 362.) Deputy Johnson’s tes timony on cross-examination is substantial evidence to support the trial c ourt’s finding. Appellant’s counsel asked, “So basically, it’s all residential houses; right? People - - basically there are no businesses, it’s where people live?” The deputy responded, “Yes , ma’am.” Even assuming for the sake of argument that this testimony was in conflict with other aspects of Deputy Johnsen’s testimony, or that this testimony was capable of supporting more than one inference, “‘the power to . . . resolve any conflicts in the testimony’” and to “‘draw factual inferences, is vested in the trial court.’” ( People v. Jones, supra, 209 Cal.App.3d at pp. 730-731.) Thus, Deputy Johnsen was mistaken in believing that appellant was violating section 21956 by walking in the middle of the road in a re sidential district. 4 In their briefing on appeal, appellant cont ended, and respondent agreed, that the good faith exception to the exclusionary rule was not av ailable when an officer makes a pure mistake of law. At the time of briefing, the parties were correct.

4 We note that although the People had th e burden of proving that the warrantless search of appellant was justified, the pr osecutor did not ask Deputy Johnson any questions on direct examination about the re sidential or business character of the area where appellant was observed, did not ask a ny questions on redirect examination about the character of the area to clarify any po ssible ambiguity in the deputy’s testimony and did not argue that the area was outside a reside ntial or business district and so appellant had violated section 21956. On appeal, the Attorney General does not argue that the area was outside a business or residential district and so appellant violated section 21956.6 California courts “on strong policy ground s have generally refused to excuse a police officer’s mistake of law.” ( People v. Teresinski (1982) 30 Cal.3d 822, 831; People v. Reyes (2011) 196 Cal.App.4th 856 [having only a single rear license plate was not a
violation of law and “‘An offi cer cannot have a reasonable be lief that a violation of the
law occurred when the acts to which an officer points as supporting probable cause are not prohibited by law. [¶] . . . A stop based on a subjectiv e belief that a law has been broken, when no violation actually occu rred, is not objectively reasonable’”]; People v.
Carmona (2011) 195 Cal.App.4th 1385; People v. Cox, supra , 168 Cal.App.4th at pp. 709-711.) During the pendency of this appeal, the United States Supreme Court issued its opinion in Heien v. North Carolina (2014) ___ U.S. ___ [135 S.Ct. 530] ( Heien ). The
court held that a “reasonable” mistake of la w can give rise to the reasonable suspicion necessary to uphold the seizure under the Fo urth Amendment. However, the majority opinion provides little guidance on what cons titutes a “reasonable” mistake of law. The court noted the reality that “an officer may ‘s uddenly confront’ a situ ation in the field as to which the application of a statute is unc lear—however clear it may later become.” ( Heien , supra , ___ U.S. at p. __ [135 S.Ct. at p. 533].) The court added, “The Fourth Amendment tolerates only reasonable mistakes, and those mistakes . . . must be objectively reasonable. We do not examine the subj ective understanding of the particular
officer involved. Cf. Whren v. United States , 517 U.S. 806, 813 (1 996). And the inquiry is not as forgiving as the one employed in th e distinct context of deciding whether an officer is entitled to qualified immunity for a constitutional or statutory violation. Thus, an officer can gain no Four th Amendment advantage through a sloppy study of the laws he is duty-bound to enforce.” ( Heien, supra , ___ U.S. at p. ___ [135 S.Ct. at pp. 539- 540].) The United States Supreme Court found “little difficulty” in concluding the
officer’s mistake in Heien was reasonable. ( Heien , supra , ___ U.S. at p. ___ [135 S.Ct. at p. 533].) The officer stopped Heien for ha ving only a working left brake light; the right brake light did not illuminate. ( Ibid .) The officer believed that the North Carolina7 Vehicle Code required a vehicle to have tw o working brake lights. The North Carolina Court of Appeal subsequently held that on ly one working brake light was required. ( Heien , supra , ___ U.S. at p. ___ [135 S.Ct. at pp. 533-534].) The United States Supreme Court noted that th e “statute at issue refers to ‘a stop lamp,’ suggesting the need for only a single working brake light, [but] it also provides that ‘[t]he stop lamp may be incorpor ated into a unit w ith one or more other rear lamps’”
and “another subsection of the same provision required that vehicles ‘have all originally equipped rear lamps or the equivalent in good working order.’” ( Heien , supra , ___ U.S. at p. ___ [135 S.Ct. at p. 533].) The court al so noted that the “‘stop lamp’ provision . . . had never been previously cons trued by North Carolina’s appe llate courts. [Citation.] It was thus objectively reasonable for an officer” to think that Heien’s faulty right brake light was a violation of North Carolina law. ( Heien , supra , ___ U.S. at p. ___ [135 S.Ct. at p. 541].)
The situation before us is marked ly different from the situation in Heien. Section 21956 has been construed by a Ca lifornia appellate court, in People v. Cox, supra , 168 Cal.App.4th 702. The meaning of the statute ha s been clear since that case was decided, in 2009. Further, as the court in Cox pointed out, ev en in 1943 “it was well-settled law that “‘pedestrians have a right to travel a nywhere upon a public highway in a residence district.”’ Going back still fa rther, our Supreme Court has held that this right of a pedestrian also extends to city streets.” ( Id . at p. 709 [citing Raymond v. Hill (1914) 168 Cal. 473, 482 in omitted fn.].) For these re asons, we conclude that Deputy Johnsen’s
mistake was not a reasonable one. 5

5 We note that the court in People v. Cox, supra , 168 Cal.App.4th 702, held that the officers in that case “fa iled to comprehend the Califor nia Vehicle Code, something they are reasonably exp ected to know. (See People v. McNeil [(2002) supra ,] 96 Cal.App.4th [1302,] 1309.) Section 21956, subdivision (a ) was enacted over 40 years ago. [Citation.] This is more than enough time for any California police department to analyze and properly instruct its officers that pedestrians can legally walk in the roadway in a business or residential district.” ( People v. Cox, supra, 168 Cal.App.4t h at pp. 710- 711 [fn. omitted].)8 c. Detention Respondent contends that even if Deputy Johnsen was mi staken about the law, the deputy did not seize appellant and so appellant’s subseque nt consent to search was voluntary. The trial court impliedly found that a detention occurred. We also find that a
detention occurred. “A seizure of a person implicating th e Fourth Amendment occurs ‘“when [a police] officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.”’ ( Florida v. Bostick (1991) 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389.) An officer mu st either ‘intentiona lly appl[y] hands-on, physical restraint’ or ‘initiate a show of authority, to which the objectively reasonable innocent person would feel compelled to submit, and to which the suspect actually does submit for reasons solely attributable to the police show of authority.’” ( People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367, italics omitted.)
A detention is a seizure of an individual which is strictly limited in duration, scope, and purpose, and which ma y be undertaken by the police if there is an articulable suspicion that a person has committed or is about to commit a crime. ( In re James D. (1987) 43 Cal.3d. 903.) “‘Unlike a detention, a consensual enco unter between a police officer and an individual does not implicate the Fourth Ame ndment. It is well established that law enforcement officers may approa ch someone on the street or in another public place and converse if the person is willing to do so’ w ithout having any ‘articulable suspicion of criminal activity.’” ( People v. Rivera (2007) 41 Cal.4th 304, 309.) ‘[T]he crucial test is whether . . . the police conduct would “have communicated to a reasonable person that he was not at liberty to ignore the police pr esence and go about his business.”’ ( Florida v.
Bostick , at p. 437, 111 S.Ct. 2382.) This test ‘is an objective one: not whether the citizen perceived that he was being ordered to rest rict his movement, but whether the officer’s
words and actions would have conveyed that to a reasonable person.’ ( California v.
Hodari D. (1991) 499 U.S. 621, 628, 111 S. Ct. 1547, 113 L.Ed.2d 690.)” ( In re J.G

. (2014) 228 Cal.App.4th 402, 409.)9 “Examples of circumstances that might i ndicate a seizure, even when the person did not attempt to leave,” include “use of language or tone of voice indicating that compliance with the of ficer’s request might be compelled.” ( United States v. Mendenhall (1980) 446 U.S. 544, 554.) Here, the two deputies pulled up behind appe llant in their marked patrol car and “asked him—or told him to stop.” Deputy Jo hnsen’s partner “yelled” at appellant from the window of the patrol car. Deputy Johnsen did not remember what his partner yelled. Whatever he yelled caused appellant to stop. Appellant “stopped right where he was.” The deputies then directed a ppellant to come to the patr ol car. Appellant complied. No reasonable person would feel free to continue on his way after a police officer yelled at him to stop, even if the yelled statem ent was phrased in the form of a question. It is hard to imagine a clearer example of a situation where “the use of language or tone of voice indicat[ed] that compliance with th e officer’s request might be compelled.” ( U.S. v. Mendenhall, supra, 446 U.S. at p. 554.) The depu ties then directed appellant to come to their patrol car. Th is would only reinforce a reasonable person’s belief that he was not free to continue on his way. When appellant reached the patrol ca r, nothing the deputies said would have indicated to a reasonable person that he was free to decline to answer the officers’ questions and continue on his way. The deputies did not ask appellant how he was feeling or if he was in any difficulty. 6 They did not ask appellant if he would speak with

6 A detention is permissible if it is an ex ercise of an officer’s community caretaking function. (See People v. Madrid (2008) 168 Cal.App.4th 1050, 1058 [community caretaking exception applies when police officers “‘act[]reasona bly to protect the safety and security of persons and property’ [citation]”] .) Here, the prosecu tor did not attempt to justify the warrantless search of appellant by arguing that the initial stop was justified as an exercise of Deputy Johnson’s community caretaking functions. The key factor in determining the reasonableness of a community caretaking detention is the “nature and level of distress exhibited” by the person stopped. ( Id . at p. 1059.) Deputy Johnson’s testimony contains no indi cation that appellant was exhibiti ng any level of distress at all, and nothing in Deputy Johnson’s questioning of appellant concerned appellant’s welfare.10 them or would be willing to answer a few ques tions. They first asked appellant if he was on probation or parole, then as ked other accusatory questions.

d. Taint from any illegal seizure Respondent contends that even if appella nt were illegally seized by the deputies, appellant’s subsequent consen t to search was voluntary.
It is often the case that when consent to a search is given immediately following an illegal detention, the consent is “inextri cably bound up with the illegal conduct and cannot be segregated therefrom.” ( People v. Haven (1963) 59 Cal.2d 713, 719.) However, such consent is not automatically invalid. ( Wong Sun v. United States (1963) 371 U.S. 471, 487-488.) “T he question is whether the evidence was obtained by the government’s exploitation of the illegality or whether the illegality has become attenuated so as to dissipate the taint.” ( People v. Boyer (2006) 38 Cal.4th 412, 448-449.) The prosecution bears the burden of proof on issues on attenuation. ( People v. Boyer, supra , 38 Cal.4th at p. 449.) Here, these issues were not litigated below. “[W]e may nonetheless resolve such issues on appeal , even if not explicitly litigated below, if their factual bases are fully set fort h in the record. [Citations.]” ( Ibid .) Since respondent urges us to decide these issues on appeal, we presume that the record is complete. In determining whether the ta int has been dissipated, c ourts should consider the “temporal proximity of the [illegal conduc t and the discovery of the evidence,] the presence of intervening circumstances, and pa rticularly, the purpose and flagrancy of the official misconduct.” ( Brown v. Illinois (1975) 422 U.S. 590, 603-604.) Intervening circumstances can include fleeing th e scene or resisting arrest. ( People v. Prendez (1971) 15 Cal.App.3d 486, 487-488 [fleeing scene]; People v. Cox, supra , 168 Cal.App.4th at pp. 711-712 [resisting arrest].) In the case of a residence, the subsequent consent of
another resident can be an intervening circumstance. ( People v. Boyer, supra , 38 Cal.4th at pp. 449-452 [illegally detain ed defendant did not consent to search, but to ld police that it was up to his girlfriend; girl friend, who had remained in the residence, consented to
search several hours after defendant was taken to the police station and after she had the11 opportunity to consult with an attorney; her consent wa s valid and not tainted by defendant’s illegal detention].) Here, appellant’s consent to search was gi ven in very close temporal proximity to the illegal detention. There were no interv ening circumstances. Appellant did not flee from police, resist arrest or consult with an attorney. Respondent contends appellant’s decision to answer the officer’s questions was an independent act of free will which constitute d an intervening circumstance, like the
defendant’s volitional acts of resisti ng arrest and fleeing the scene in People v. Cox,

supra , 168 Cal.App.4th 702 and People v. Prendez, supra , 15 Cal.App.3d 486. Respondent is mistaken. The “‘act in fleeing is analogous to the commission of an offense subsequent to the police conduct said to be illegal.’” ( People v. Cox , 168 Cal.App.4th at p. 712, fn 10, quoting People v. Prendez, supra , 15 Cal.App.3d at p.489.) “Normally, in a case where
evidence is uncovered following an illegal search, the sear ch itself procures the evidence sought to be excluded. But it would be a cu rious use of language to say that officers’ detention of defendant (illega l though it might have been) procured the officers’ subsequent observations of his resistance to arrest. Unlike tangible evidence that is uncovered when police conduct an unlawful search, defe ndant’s reaction here to being
detained was not inev itable. . . .” ( Id . at p. 712.) Appellant’s act of answering questions wa s not analogous to an illegal act. The officers’ questions to appellant were designe d to, and did procure answers. Appellant’s
decision to answer was not an intervening circumstance. Respondent also contends appellant “volun teered information, ” which showed free will and independent ac tion. Appellant did not volunteer information. He answered specific questions asked by the officers, and appears to have done so as tersely as possible, giving one or two word answers. A ppellant’s act of responding to the officer’s questions shows that he was submitting to the officer’s assertion of authority, not exercising independent free will.12 The People have not shown that the ta int from the illegal detention of appellant was attenuated by intervening events and have not shown that appellant’s answers and consent to search were voluntary. Thus, the search and seizure of appellant violated his Fourth Amendment rights.

e. Remedy Although the trial court believed there was a Fourth Amendment violation, the court believed that the officer was merely neg ligent in his interpreta tion of the statute. The court concluded that under the reasoning of Herring, supra, 555 U.S. 135, exclusion was not an appropriate remedy. 7 As we discuss above, as long ago as 194 3, “it was well-settled law [in California] that ‘“pedestrians have a right to travel a nywhere upon a public highway in a residence district.’”” ( People v. Cox, supra , 168 Cal.App.4th at p. 709.) The statute at issue here, section 21956, subdivision (a ) was enacted in 1959. ( People v. Cox, supra , 168 Cal.App.4th at pp. 710-711.) It did not re present a departure from existing law. We agree with our colleagues in th e Third District Court of Appeal that over forty years “is more than enough time for any California pol ice department to analyze and properly instruct its officers that pedestrians can le gally walk in the roadway in a business or residential district.” ( Id . at p. 711; see also People v. NcNeil, supra , 96 Cal.App.4th at p. 1309 [“40 years was enou gh time for responsible officials of the Oakland Police

7 As the Supreme Court noted in Heien , in previous cases such as Herring, supra, 555 U.S. 135, and Davis v. United States (2011) 564 U.S. __ [131 S.Ct. 2419], “[a]ny consideration of the reasonableness of an o fficer’s mistake was . . . limited to the separate matter of remedy.” ( Heien , supra , ___ U.S. at p. ___ [1 35 S.Ct. at p. 10].) In Heien , however, the Supreme Court considered th e reasonableness of an officer’s mistake to determine whether the Fourth Amendment had been violated. The court found the mistake of law in Heien reasonable, leaving open the question of whether an unreasonable mistake of law would in and of its elf call for application of the exclusionary rule or whether a secondary analysis of po lice culpability would be required to determine the remedy. We will make such an analysis.13 Department to learn and to educate their o fficers in the field that the ordinance in question was preempted by state law”].) Here, two deputies of the Los Angeles Co unty Sheriff’s Department apparently were not aware of long-sta nding California law pe rmitting pedestrians to walk in the
middle of the road in a residential district . This creates a strong inference that the Sheriff’s Department has not properly trained its deputies in the relevant law. Since this
law has been in existence in its current statutory form for more than fifty years, this failure is more than simple negligence, and is exactly the sort of situation where application of the exclusiona ry rule would have its inte nded deterrent effect. (See Herring, supra , 555 U.S. at p. 144 [“the exclusionary rule serves to deter . . . recurring or systemic negligence”].) The tr ial court erred in denying appellant’s motion to suppress
evidence.

Disposition The judgment is reversed and this ma tter is remanded to the trial court with directions to enter an order granting appellant’s motion to suppress evidence.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

GOODMAN, J. 

I concur:

MOSK, J.

 Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.Turner, P.J., Dissenting

I respectfully dissent. In terms of issues properly before us, substantial evidence supports the trial court’s finding that the deputies acted in a ne gligent non-culpable
manner. Vehicle Code 1 section 21956, subdivision (a ) prohibits the following, “No pedestrian may walk upon any roadway outs ide of a business or residence district
otherwise than close to his or her left-ha nd edge of the roadwa y.” Putting aside the obtusely stated language in section 21956, su bdivision (a), it prohibits walking in a street
outside of a commercial or residential distri ct. When walking outside of a business or residence district, a pedestrian is free to walk upon a roadway close to its left hand edge. And under specified circumstan ces, section 21956, subdivision (b) permits a pedestrian to walk “close” to the right-hand edge of the roadway.
There is substantial evidence defendant was first seen walking outside of a residential district. Deputy Jeffrey Johnsen first saw defe ndant walking southbound on Mountain. The deputies watche d defendant “a minute or so” before they pulled him over. Deputy Johnsen saw defendant walking on Mountain, which has three lanes, between
two double lines. Defendant turned and walked eastbou nd on Meridian. It was on Meridian where defendant was stopped. Depu ty Johnsen testified, “We stopped him for the subsequent violation and were going to warn or cite him.” Defendant was only stopped when he had turned from Mountai n to Meridian. There was no testimony defendant walked in the middle of Meridian, only Mountain. When cross-examined, De puty Johnsen was asked whether the Mountain and
Meridian intersection is a residential area. It is these questions on cross-examination that are directly pertinent to the nature of the area where defendant was walking in the middle of the street. Deputy Johnsen testified: “Mountain is a highway in between two
residential areas. Meridian is in a residen tial area.” After that answer, the following

1 Future statutory references are to the Vehicle Code.2 occurred: “Q. So, basically, it’s all residential houses; right ? People -- basically, there are no businesses, it’s where people live?” [¶] A. Yes, ma’am.” This testimony raises two issues. To begin with, Deputy Johnsen expressly
testified that the area on Mountain was “between” two residential areas. Deputy Johnsen’s answer distinguished between Mountain and Meridian . Mountain was a highway between two residential areas. By contrast, Meridian was a street in a
residential area. There is no evidence th ere are any businesses on Mountain which was
between two residential areas. Under those circumstances, defendant violated section 21956, subdivision (a)—he was walking outsid e a residential or business district in the middle of the street. As the Court of Ap peal has explained—if one is walking “ inside a business or residential district,” section 21956, subdivision (a) ha s not been violated. ( People v. Cox (2008) 168 Cal.App.4th 702, 708-709, original italics.) Defendant was not walking near or partially on the left hand side of Mount ain as permitted by section 21956, subdivision (a). ( Myers v. King (1969) 272 Cal.App.2d 571, 578-579.) Nor was defendant walking near the right side of Mo untain under the circumstances enumerated in section 21956, subdivision (b). (See Kovacs v. Sturgeon (1969) 274 Cal.App.2d 478, 482; Myers v. King , supra , 272 Cal.App.2d at p. 578 & fn. 3.) Under those circumstances, defendant could be stopped for violating section 21956, subdivision (a). Any alleged negligent violation of defendant’s Fourth Amendment rights is irrelevant
under this view of the facts. In any event, Deputy Johnsen’s answer to defense counsel’s inartful question, which begins, “Well basically. . .” can be read two ways. To begin with, his answer can be read as clarifying that Meridian is in fact in a residential area. If that is the case, the result is that specified in the immediately preceding paragraph. Defendant was observed walking in a highway between two residen tial areas, a violation of section 21956, subdivision (a). Another way to read the answer to the convolu ted question is that Meridian is in close proximity to the highw ay where defendant was walking. In other words, it can be argued that: where defenda nt was walking in the middle of Mountain is very close to where he was stopped on Meridi an; that the immediate proximity of the two3 roadways meant that while wa lking on Mountain, one could arguably characterize the area as residential; and defenda nt thus did not violate sect ion 21956, subdivision (a). This view of the testimony is one cloa ked in ambiguity; but the two areas where defendant was observed, on M ountain and Meridian, is argua bly residential. (It bears emphasis though that Deputy Johnsen never di rectly testified that Mountain was in a residential area; only that it was between two residential areas.) Given the ambiguity of the neighborhood’s character, under this hypothe sis, the two deputies acted negligently so as to bring this case outside the am bit of the exclusionary rule. Such negligent, non-culpable, conduct pr ohibits application of the exclusionary rule. ( Herring v. United States (2009) 555 U.S. 135, 144; see Davis v. United
States (2011) 564 U.S. __, __ [1 31 S.Ct. 2419, 2426-2429]; United States v. Wright (3rd Cir. 2015) 777 F.3d 635, 638.) The Third Circuit has synthesized the controlling United States Supreme Court authority thusly: “Whe n law enforcement ‘exhi bit[s] “deliberate,” “reckless,” or “grossly negligen t” disregard for Fourth Amendment rights, the deterrent value of exclusion is strong and te nds to outweigh the resulting costs.” Id. (quoting Herring, 555 U.S. at 144); accord [ United States v. ] Katzin [(3rd. Cir. 2104)] 769 F.3d [163,] 171. Similarly, ‘the exclusionary rule serves to deter . . . recurring or systemic negligence.’ Herring, 555 U.S. at 144. ‘But when the police act with an objectively reasonable good-faith belief that their conduct is lawful, or when their conduct involves only simple, isolated negligence, the deterrenc e rationale loses much of its force, and exclusion cannot pay its way.’ Davis, 131 S.Ct. at 2427-28 (citations and internal quotation marks omitted); Herring, 555 U.S. at 137; accord [ United States v. ] Leon , [(1984)] 468 U.S. [897,] 919; Katzin, 769 F.3d at 171. I ndeed, the Supreme Court recently suggested that the absence of cu lpability is dispositive of the deterrence balancing test. See Davis, 131 S.Ct. at 2428-29 (‘[T]his acknowledged absence of police culpability dooms Davi s’s claim.’).” ( United States v. Franz (3rd Cir. 2014) 772 F.3d 134, 145.) Here the trial court observed Deputy Johnsen’s demeanor and heard the opaque testimony as to the nature of Moun tain where defendant was walking in the4 middle of the highway. The trial court foun d the deputies acted me rely negligently, not with any culpability. I would affirm subject to modifications in the judgment.

TURNER, P.J.