Filed 12/11/14 P. v. Cruz CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent,

v. JAMES AUDRIC CRUZ, Defendant and Appellant. H040012 (Santa Cruz County Super. Ct. No. F24758)

Following the denial of his motio n to suppress (Pen . Code, § 1538.5), 1 defendant James Audric Cruz pleaded guilty to a charge of possession of a concealed firearm as an active participant in a criminal street gang (§ 25400, subd. (c)(3)). In exchange for his plea, the trial court dismissed a charge of ev ading a peace officer with willful disregard for the safety of persons and property (V eh. Code, § 2800.2, su bd. (a)), along with a criminal street gang-enhancement allegation (§ 186.22, subd. (b)(1 )). Pursuant to the agreement, Cruz was sentenced to formal probation of three years following a 180-day county jail sentence, with cred it for time served of 78 days. The trial court also imposed various probation conditions, including a variety of gang-related conditions. On appeal, Cruz argues the trial court erred in denying his motion to suppress and further challenges several of his probation conditions as uncons titutionally vague and
overbroad. We find the trial court did not err in denying the mo tion to suppress, but

1 Further unspecified statutory re ferences are to the Penal Code.2 agree that some of the challenged probation conditions should be m odified to include a knowledge requirement. We will a ffirm the judgment as modified.
I. F ACTUAL AND P ROCEDURAL B ACKGROUND 2 Cruz was initially charged by informati on with one count of carrying a loaded concealed weapon (§ 25400, subd. (c)(6)) and one count of evading an officer with willful disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)). As to the first count, the information alle ged that the offense was committed for the benefit of, at the direction o f, and in association with a cr iminal street gang (§ 186.22, subd. (b)(1)). On May 17, 2013, City of Watsonville Police Officer Scott Parsons was on patrol
in Watsonville in a ma rked patrol vehicle along with Se rgeant Stephen Fish. At about 7:00 p.m., Parsons observed a green Honda b acking out of the driveway at 53 Airport Road. Parsons knew that three brothers, all of whom are members of a criminal street gang called either Poorside Chicos or Poorsi de Watson, lived at that address with their parents. One of those brothers was, acco rding to Parsons, “one of the higher ranking
Poorside Chicos in Watsonville.” Parsons ha d twice executed search warrants at that address, looking for firearms. 3 As Officer Parsons passed the Honda, which was traveling in the opposite direction, he observed Cruz driving the vehi cle, and as he looked over, Cruz quickly turned his head away as if to avoid being identified. Parsons made a U-turn and saw Cruz turn left at a stop sign. Parsons spee ded up to try to get Cruz’s license plate
number. When Parsons turned at the same intersection where he had just seen the Honda turn, he could no longer see it and surmised it had made another turn. Parsons made

2 As Cruz pleaded no contest and challenge s the trial court’s denial of his motion to suppress, we derive the facts from the transcript of the motion hearing. 3 Officers found firearms during one of those searches.3 another turn and again saw th e Honda perhaps 200 feet away. Parsons again sped up to about 50 mph, but was not gaining ground on Cruz, even though the posted speed limit on the street was 25 mph.
The road curved to the left ahead. Officer Parsons noticed that Cruz drove in the oncoming lane of traffic and the Honda tilted to the right as Cruz negotiated that curve, indicating that Cruz was driving “pretty fast .” After Cruz ran a stop sign at the next intersection and made a right tu rn, Parsons activated his lights and continued his pursuit. Cruz ran the next stop sign an d made another turn before pulling over in front of a mobilehome park. As he made this second turn, Parsons saw Cruz reaching down to his right, as if to grab someth ing or hide something. Officer Parsons approached the driver’s side of the Honda while Sergeant Fish moved toward the passenger side. Parsons was concerned because it seemed like Cruz was trying to avoid him and th e way he appeared to be gr abbing or hiding something before the stop, so Parsons had his hand on his weapon as he approached the car. He kept
some distance from the door and noticed that Cr uz would not make eye contact with him. Cruz also “appeared to be sh aking and nervous.” Cruz ha d turned off the ignition and was playing with his keys. Parsons saw him re ach as if it to put them in his pocket, so Parsons directed him to drop the keys instead and keep his hands away from his pockets.
Officer Parsons asked Cruz if he knew Abel De La Torr e, also known as Menace, the high ranking member of Poorside Chicos who resided at 53 Airport Road. Cruz said
he did not. Parsons as ked Cruz to step out of the car. Cruz was weari ng baggy pants and a long shirt which covered his waistline and poc kets. At this point, Parsons estimated a little over a minute had passed since he stepped ou t of the patrol car to approach Cruz. Cruz stepped out of the car, but turned his back on Officer Parsons and took a couple steps backwards towards him. Parsons thought this was odd, so he directed Cruz to “step back” before placing him in handcuffs . Parsons said he did this because “of [Cruz’s] nervousness, because of the way he was moving inside the vehicle prior to the4 stop, the way he was driving, the house he wa s coming from[,] [a]ll of that together made
me believe that he was either armed or that he was hiding something from me that could possibly hurt me.” Another factor in his de cision to handcuff Cruz was that Parsons was aware that the mobilehome park where they stopped was occupied by several members of the Poorside Chicos gang. The way they were positione d during the stop meant that
Parsons had his back to most of the mobilehomes.
Officer Parsons advised Cruz that he was “detained and not under arrest.” Parsons
did not ask to see Cruz’s driv er’s license prior to having hi m get out of the Honda. He asked Cruz if he had any wea pons on him or in the vehicle, and Cruz responded, “I have no probation, you can check my terms, you can’ t search me.” Parsons pat-searched Cruz
and found a .22-caliber revolver in his right front pants pocket. Officer Parsons subsequently determined that Cruz had a suspended driver’s license, so his vehicle was towed and impou nded. Prior to the Honda being towed,
Parsons conducted an inventor y search of the vehicle. Cruz brought a motion to su ppress the evidence seized from his person and vehicle on the grounds that: (1) his detention was illegally prolonged; (2) he was arrested without probable cause ; (3) the pat-down search was illegal because Officer Parsons did not have a reasonable suspicion he was arme d and dangerous; and (4 ) the search of his vehicle was beyond the scope of the arrest. Pa rsons testified at the hearing on the motion, and following the close of evidence, defense counsel’s argument focused principally on the justification for conductin g the pat-down search. Prior to ruling on the motion, the court explained its reasoning, as follows: “It
seems to me the entire issue is whether or no t there is the additional circumstances that
over and above the dete ntion to justify the Terry search. [ Sic .] And I think if you have conduct consistent with avoiding the officer, evading the officer, whet her it’s a felony or not, whether it’s a crime or not, is not the issu e. The question is whether or not there’s
conduct consistent with avoidi ng the officer, and I believe ther e is. . . . [¶] Plus you have5 some indicia of gang conduct, the fact that he is leaving the home of a known gang member. That’s all you need, the combination of those things for the officer for his own safety to conduct a Terry [4] pat-down.” The trial court then denied Cruz’s motion. Cruz subsequently entered into a plea bargain, pl eading guilty to an amended 5 charge of possession of a concealed firearm as an active participant in a criminal street gang (§ 25400, subd. (c)(3)). In exchange, the People agreed to dismiss the charge of evading a peace officer with willf ul disregard for the safety of persons and property (Veh. Code, § 2800.2, subd. (a)), al ong with the gang-enhancement allegation (§ 186.22, subd. (b)(1)). It was further agreed that Cruz woul d be sentenced to formal probation of three years following a 180 day county jail sentence, with credit for time served of 78 days. Cruz was also ordered to comply with va rious terms of probation, several of which he now challenges on appeal. We will discu ss those probation terms in detail below.
II. D ISCUSSION
A

. The motion to suppress was properly denied Cruz renews his argument that his detention was unnecessarily prolonged and thus became a de facto arrest without probable ca use. Because Officer Parsons stopped him for traffic violations, he should have imme diately proceeded to cite Cruz for those
violations rather than interr ogate him about his affiliation w ith known gang members. He also argues that Parsons’ patsearch was illega l since there was nothing to indicate Cruz was armed and dangerous. “A warrantless search is presumed to be unreasonable, and th e prosecution bears the burden of demonstrating a lega l justification for the search. [Citation.] ‘The standard of appellate review of a trial court’s ruling on a motion to suppress is well established. We defer to the trial court’s factual finding s, express or implied, where supported by

4 Terry v

. Ohio (1968) 392 U.S. 1, 27 ( Terry ). 5 The information alleged a violation of section 25400, su bdivision (c)(6).6 substantial evidence. In dete rmining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.’ ” ( People v

. Redd (2010) 48 Cal.4th 691, 719.) Since Cruz violated the Vehicle Code, O fficer Parsons “had the legal right, indeed the duty” to detain him. ( People v

. Superior Court ( Brown ) (1980) 111 Cal.App.3d 948, 954 [officer has right and duty to detain where he witnesses a traffic violation].) “[W]hen
circumstances are ‘ “consistent with crimin al activity,” they pe rmit--even demand--an investigation . . . .’ ” ( People v

. Souza (1994) 9 Cal.4th 224, 233.) Cruz concedes that Parsons was justified in initiati ng the traffic stop after observi ng him run two stop signs. However, Cruz argues that, under People v

. McGaughran (1979) 25 Cal.3d 577, a detention based on a traffic infraction may last only as long as it is reasonably necessary under the particular circumstances for the offi cer to perform duties related to the stop. Because the patsearch was not related to th e stop, it was the product of an unlawful detention. We disagree that McGaughran is dispositive under these circumstances.
Under McGaughran , an investigatory stop excee ds constitutional limits when it extends beyond what is reasonably necessary under the circumstances to effectuate the purpose of the stop. Circumstances that develop during a de tention may provide reasonable suspicion to prolong the detention. ( People v

. Warren (1984) 152 Cal.App.3d 991, 995-997; People v

. Suennen (1980) 114 Cal.App.3d 192, 200-201 [if additional cause to detain develops afte r the initial stop, additional time to investigate is allowed].) “There is no set time limit for a permissible investigative stop; the question is whether the police diligently pursued a mean s of investigation reasonab ly designed to confirm or dispel their suspicions quickly.” ( People v

. Russell (2000) 81 Cal.App.4th 96, 102.) “Implicit in the McGaughran analysis is a recognition that the circumstances of each traffic detention are unique and that the reas onableness of each detention period must be judged on its particul ar circumstances.” ( Williams v

. Superior Court (1985) 168 Cal.App.3d 349, 358.)7 Turning to Officer Parsons’ pat-down s earch, in reviewing the Fourth Amendment reasonableness of an officer’s conduct, we mu st consider the totality of the circumstances known to the officer when the search was conducted. ( Terry , supra , 392 U.S. at p. 27; People v

. Souza , supra , 9 Cal.4th at p. 231; People v

. Avila (1997) 58 Cal.App.4th 1069, 1074.) “[I]n determining whet her the officer acted reasonably in such circumstances, due weight must be given, not to his inchoate and unparticularized suspicion or ‘hunch,’ but to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience.” ( Terry , supra , at p. 27.) “Reasonable suspicion must be based on ‘commonsense judgments and inferences about human behavior.’ [Citation.] The
determination of reasonableness is ‘inherently case-specific.’ ” ( In re H

. M . (2008) 167 Cal.App.4th 136, 143 ( H

. M .).)
In H

. M . the Court of Appeal found a pats earch did not violate the Fourth Amendment because the minor ran through heavy traffic, sweating profusely and nervously looking around, causing officers to believe he had been involved in some kind of criminal activity; the area was known for gang activity; the minor was known to the officers to be an admitted gang member; and there had been a shoo ting a block away the previous day. “Viewed objectively, throu gh the lens of common sense and experience, H.M.’s odd behavior strongly sugges ted criminal activity was afoot.” ( H

. M ., supra , 167 Cal.App.4th at p. 144.) “Officers in an ar ea plagued by violent ga ng activity need not ignore the reality that persons who commit cr imes there are likely to be armed. ‘[T]he fact that an area involves increased gang activity may be considered if it is relevant to an officer’s belief the detainee is armed and dang erous. While this factor alone may not justify a weapon search, combined with additiona l factors it may.’ ” ( Id . at p. 146.) In this case, there were several circum stances which caused Officer Parsons to delay his investigation into Cr uz’s traffic infractions and pl ace Cruz in handcuffs while he performed a pat-down search for weapons. Parsons first observed Cruz as he backed out of the driveway of a residence where se veral known gang members, one of them a8 high-ranking gang member, lived. As Parsons and Cruz passe d each other, Cruz quickly looked away, as if to avoid being recognized. After Pars ons made a U-turn to follow Cruz and run the license plate of his vehicle, Cruz sped up in what seemed to be an attempt to get away. Cruz th en ran a stop sign, and Parsons activated his patrol lights. Cruz ran a second stop sign and Parsons could see his right s houlder dip down as if he were grabbing something or hiding something. Although Cruz subsequently stopped and complied with Parsons’ directions, the pa rking lot where they stopped was in a mobilehome park where Parsons knew other gang members lived. Parsons testified less than a minute elapsed between stepping out of his patrol car and in structing Cruz to get
out of his vehicle. Cruz wa s wearing baggy pants, and a long shirt which covered his waistline and all of his pockets . Furthermore, when Parsons asked Cruz if he had any weapons, Cruz did not simply say no. His re sponse--“I have no probation, you can check my terms, you can’t search me”- -was less than reassuring. Given these circumstances, it was reasonable to Officer Parsons to place Cruz in handcuffs and pat him down for weapons befo re proceeding to cite him for the traffic
violations. The detention wa s not unreasonably prolonged. The trial court properly
found that this did not amount to a de facto arre st given all that had transpired up to that point, and the facts also support Parsons’ re asonable suspicion that Cruz was armed and dangerous.
B

. The probation conditions
1

. Relevant facts and procedure
As conditions of Cruz’s probation, the trial court im posed “gang terms” at the sentencing hearing. The trial court did not r ead out those conditions at the hearing, but provided them to Cruz in writing, asking that he review and sign them, which he did. Cruz now challenges conditions Nos. 9, 10, 11, 13 and 14, as listed in the court minutes.
We set forth these individual conditions below in the sections discussing Cruz’s arguments as to why they should be modified.9 2

. Lack of knowledge requirement Cruz first challenges these conditions as being unconstitutionally vague and overbroad since they fa il to require him to have knowledge of the circumstances which would result in a pr obation violation. The People do not object to the modifi cation of these probation conditions but direct our attention to the approach adopted by our colleagues at the Third Appellate
District in People v

. Patel (2011) 196 Cal.App.4th 956. In Patel , the Third Appellate District expressed its frustra tion with the “dismaying regular ity” to which it must revisit the issue of a lack of an express scienter requirement in orders of probation. ( Id . at p. 960.) Because there exists a substantial uncon tradicted body of case law that establishes that a “probationer cannot be punished for presence, possession, association, or other actions absent proof of scienter,” the C ourt of Appeal cautioned it would no longer entertain the issue on appeal, but would instead construe all probation conditions proscribing restrictions on pr esence, possession, association, or other actions with the requirement that the action be undertaken knowingly. ( Ibid .) This court, and a number of the Courts of Appeal, have d eclined to follow the
rationale of Patel . (See, e.g., People v

. Pirali (2013) 217 Cal.App.4th 1341 ( Pirali ); People v

. Moses (2011) 199 Cal.App.4th 374.) In Pirali , we chose to modify probation conditions to include an express knowledge requirement, noting “[o]ur Supreme Court faced the issue of the lack of a knowledge requirement in a probation condition and concluded that ‘modification to impose an exp licit knowledge requirem ent is necessary to render the condition constitutional.’ [Cita tion.] Until our Supreme Court rules differently, we will follow its lead on this point.” ( Pirali , supra , at p. 1351.)

a

. Probation condition No

. 9 “[Condition No.] 9: Do not be a member of or associat e with any criminal street gang, as defined in subdivision (f) of Penal Code S ection 186.22.”10 Cruz argues this condition is unconstitu tionally vague because he could violate it by unwittingly associating with someone he does not know is a gang member. The People concede this argument and we agree the concession is appropriate. We previously modified a similar condition in People v

. Leon (2010) 181 Cal.App.4th 943 because it failed to includ e an “explicit knowledge requirement.” ( Id . at p. 950.) Accordingly, we will direct that th e condition be modified to read: “Do not be a member of or knowingly associate with an y criminal street gang, as defined in subdivision (f) of Penal C ode Section 186.22.”
b

. Probation condition No

. 10 “[Condition No.] 10: Do not do any unlawful act or acts in furtherance of, in association with, or for the benefit of any criminal street gang.”
Cruz contends this conditio n is vague and over broad in that he could violate it by committing lawful acts which, without his knowl edge, just happen to benefit a criminal street gang. The People do not concede this point, arguing that a knowledge requirement is implied in the condition itself. We agr ee with the People on this point, but for a
different reason.
Cruz misreads the condition as if it were composed in this way: “Do not do any unlawful act, or acts in furtherance of, [etc.] .” By separating the word “acts” from the adjective “unlawful,” he argues that any ac ts, lawful or unlawful, which benefit a criminal street gang are prohibited. Howe ver, the probation condition does not prohibit Cruz from committing lawful acts at all, even those which happen to benefit a street gang.
There is no comma between the words “act” a nd “or,” and thus the adjective “unlawful” applies to both “act” and “acts.” The cond ition prohibits Cruz fro m committing a single unlawful act or multiple unlawful acts which be nefit a criminal street gang. Since the prohibition extends only to un lawful conduct, the scienter is implied and no express knowledge requirement is necessary.

c

. Probation condition No

. 1111 “[Condition No.] 11: Do not knowingly have any cont act with any person known to you to be a member of a criminal street gang, except for members of your immediate family. Do not knowingly frequent areas wh ere you know gang members congregate. If you see members of a criminal street gang in public, you are not to associate with or contact them in any way. Leave the area immediately.” Cruz takes issue with the portion of th is condition which describes how he is to behave upon seeing a member of a criminal st reet gang in public. If he does not know that a person is a gang member, an d he approaches them, he is in violation of probation. The People fail to address this argument in their brief. We agree that the condition is unconstituti onally vague as phrased. Accordingly, we will direct that this portion of the cond ition be modified to re ad, “If you see persons you know to be members of a criminal street gang in public, you are not to associate with or contact them in any way.”
d

. Probation condition No

. 13 “[Condition No.] 13: Do not display any hand signs with gang significance or wear any clothing whic h indicates gang affiliation (i.e . colors, bandanas, symbols, insignia, numbers, monikers, patterns, etc.) know n by you to be gang related, or has been identified as such to you by law en forcement or probation officers.” According to Cruz, this condition is unconstitutionally overbroad in that it prohibits his unknowing display of hand si gns. The People concede the point, and we agree the concession is appropriate. We will direct that the probation conditio n No. 13 be modified to read, “Do not knowingly display any hand signs with ga ng significance or wear any clothing which indicates gang affiliation (i.e., colors, bandan as, symbols, insignia, numbers, monikers, patterns, etc.) known by you to be gang related, or has been identified as such to you by law enforcement or probation officers.”

e

. Probation condition No

. 1412 “[Condition No.] 14: Do not wear, displa y, or possess any gang clothing, indicia or paraphernalia in any form. Do not possess photographs ormedia depicting individuals wearing, displaying or posse ssing gang clothing, indicia or paraphernalia in any form. This includes, but is not limited to, photogra phs, graffiti, symbols, bandanas and gang related clothing.” Cruz also argues that this condition does not require that he have actual knowledge of what constitutes gang clothing, indicia or paraphernalia, and thus he could unwittingly violate his probation. The People agree, noting that this court modified a similar probation condition in People v

. Leon , supra , 181 Cal.App.4th at page 951. We agree with the concession, except as to Cruz’s su ggestion that the word “knowingly” be added before the phrase “wear, display, or possess” in the first senten ce. Wearing, displaying or possessing clothing, indicia or paraphernalia is not done “unknowingly.” One may not know the significance of what one is wearing, but it is unreasonable to suggest that one does not know that they are wear ing the thing in question. Accordingly, we will direct that probatio n condition No. 14 be m odified to read as follows, “Do not wear, display, or possess what you know to be any gang clothing, indicia or paraphernalia in any form. Do not knowingly possess photographs or media depicting individuals wearing, displaying, or possessing what you know to be gang clothing, indicia or paraphernalia in any fo rm. This includes, but is not limited to, photographs, graffiti, symbols, bandana s and gang related clothing.”
3

. Probation condition No

. 11 ’ s restrictions on constitutional rights Cruz also challenges the first two sent ences of probation condition No. 11, which direct him not to “have any contact” with a nyone he knows is a criminal street gang member and not to “knowingly frequent areas” where he knows gang members congregate. The phrase “have any contact” is vague and limits his freedom of movement.
The word “areas” is overb road and, in this context, coul d apply to many square blocks of13 a city and perhaps an entire c ity itself. The word “frequen t” is not just overbroad, but
obscure and not suffici ently specific. We have previously found that the term “frequent” is not appropriate in this context because it is no longer a term in comm on usage and it fails to adequately describe the prohibited activity. ( In re H

. C . (2009) 175 Cal.App.4th 1067, 1072.) Since the purpose of the probation condition is to precl ude Cruz from being physically present at a place where he knows gang members congrega te, the more appropriate word to use
would be “visit.” As to Cruz’s challenges to the phrase “h ave any contact” and th e word “areas,” we are not persuaded that these unduly restrict his constitutional rights to travel and loiter. The intended purpose of the condition is to ma ke sure that Cruz stays away from people he knows to be gang members and those pl aces where he knows gang members gather. A condition that restricts probationer’s ex ercise of constitutional rights may be permissible so long as it is narrowly drawn to serve the important public interests of safety and rehabilitation. ( In re Michael D . (1989) 214 Cal.App. 3d 1610, 1616.)
III. D ISPOSITION The judgment is modified so that proba tion conditions Nos. 9, 11, 13 and 14 now
read as follows: “09) Do not be a member of or knowingl y associate with any cr iminal street gang, as defined in subdivision (f) of Penal Code Section 186.22.” “11) Do not knowingly have any contac t with any person known to you to be a member of a criminal street gang, except for members of your immediate family. Do not knowingly visit areas where you know gang members congrega te. If you see persons you
know to be members of a crimin al street gang in public, you are not to associate with or contact them in any way.” “13) Do not knowingly display any hand signs with gang significance or wear any clothing which indicates gang affiliation (i.e ., colors, bandanas, symbols, insignia,14 numbers, monikers, patterns, etc.) known by you to be gang related, or has been identified as such to you by law en forcement or probation officers.” “14) Do not wear, display, or possess what you know to be any gang clothing, indicia or paraphernalia in any form. Do not knowingly possess photographs or media depicting individuals wearing, displaying, or possessing what you know to be gang clothing, indicia or paraphernalia in any fo rm. This includes, but is not limited to, photographs, graffiti, symbols, bandana s and gang related clothing.” As so modified, the judgment is affirmed.Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.