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Filed 7/14/16 In re C.C. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In re C.C., a Person Coming Under the

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

C.C.,

Defendant and Appellant. A145797

( San Mateo County
Super. Ct. No. JV83668 )

Appellant C.C., a ward of the juvenile court, admitted to violating a term of his

probation barring him from consuming alcohol. F ollowing that admission, his

probationary term was extended on stricter terms than those originally imposed. He

now appeals . Appellant’s appointed counsel on appeal has filed an opening brief

asking this court to conduct an independent review of the reco rd as required by People

v. Wende (1979) 25 Cal.3d 436 ( Wende )

. A lthough appellant has been advised of his

right to file a supplemental brief on any points he may wish to address with us directly,

he has not avail ed himself of that right . H aving conducted a full

- record review, we find

no issues that merit briefing. We therefore affirm.2 I. FACTUAL AND PROCEDURAL BACKGROUND

A. Wardship and Terms of Probation

Appellant was declared a ward of the juvenile court on May 8, 2014, after

the court sustained misdemeanor charges from multiple petitions filed pursuant to

Welfare and Institutions Code section 602. 1 On that same date, he was placed on in

home probation. As one of the conditions of probation, appellant was prohibited

from us ing

, possess ing , or be ing under the influence of any alcohol.

On June 19, 2015, the San Mateo County District Attorney filed a notice of

probation violation pursuant to section 777, subdivision ( a )

. The notice alleged

appellant violated the terms of his probation by consuming alcohol on June 13, 2015.

A ppellant sought to defend against th is section 777 charge by moving under Penal

Code section 1538 .5 to suppress evidence gathered by the police in connection with

his detention and arrest on th e day he was allegedly found intoxicated. The

evidence adduced by the parties at the motion to suppress hearing was , respectively,

as follows.

B. The Prosecution ’s Case

At 7:00 p.m., on June 13, 2015 Officer Brian Blake, a South San Francisco

police officer and a member of the San Mateo County Gang Task Force, was

working on a report at the station. At that time, he heard over the radio a call

regarding a gun. He did not hear the actual 911 call, but rather the dispatcher’s

report of the call

. As relayed by the dispatch er , the 911 call reported a fight in the

600 block of Railroad in South San Francisco involving several males, one with a

gun . The caller identified the combatants as four or five Hispanic males wearing

red and white

. The men w ere seen fighting

, and then fleeing. This was an area that

had recently received a lot of attention due to rival gang activity.

From the station, Officer Blake drove toward the designated area

. While he

was on the way, other officers reported that “no subjects were seen in the

1 All further statutory citations are to the Welfare and Institutions Code.3

immediate area of [the] call

, ” so Officer Blake “was on the lookout of the wider

perimeter area.” In the 800 block of Commercial, about four blocks away from the

600 block of Railroad, he saw four or five males, wearing red, white, and black and

walking northbound on Commercial, which was away from the call area. Officer

Blake did not see anyone else in the area.

Officer Blake believed the individuals he saw matched the description the

caller had provided, so he turned his patrol car around with the intention of stopping

th e group. Once he turned around, one of the individuals crossed the street and left

the area in a car that had been parked on the street. The other s in the group “quickly”

went inside a house on that block of Commercial. According to Officer Blake, “it

appeared apparent that [he] was going to contact them and that they were evading.”

Officer Blake, with the help of a cover officer, Officer Perez

, went to the

house that the group entered

. Their purpose was to investigat e the gun

- involved

fight reported to have occurred a few blocks away. At the front door, Officer Blake

told the people inside what he was investigating and for officer

- safety reasons

ordered everyone outside. Both Office r Blake and Officer Perez had their gun s

drawn. For about one minute, there was argument between Officer Blake and some

of the occupants of the house, and then seven to nine people came out of the house.

Appellant was one of the people who came out of the house in response to

Officer Blake ’s order

. He was first contacted by law enforcement outside of the

house. Officer Blake could not identify appellant as one of the four or five people

he saw walking on the street. Appellant was wearing a white t

- shi rt and black

jeans. Seven or eight officers were at the scene when the individuals were outside

of the house. Officer Blake never saw a gun on any one

.
After appellant came out of the house

, an officer noted that his eyes were

bloodshot and watery, that he had trouble standing steady, and that he smelled of

alcohol. The officer asked appellant if he had been drinking, and appellant replied,

“I’ve just been sippin.” After his arrest, appellant was transported to the hospital

for testing.4 C. The Defense Case

Ruben Regalado lives at 864 Commercial in South San Francisco w ith his

girlfriend, Yvonne Sica iros. Mr. Regalado was in the back laundry room at

approximately 7:00 p.m., on June 13, 2015. That day he had friends and family

over for a barbecue and appellant was one of his guests for the barbecue.

When Mr. Regalado heard the police, he went to the front door. At this time,

appellant was sleeping on the couch. The police officers were pointing their guns at

the house. Mr. Regalado and others went outside based upon an officer’s order, and

sat on the curb as directed . He and appellant were the last people out of the house.

After ordering all the occupants out of the house at gunpoint, the officers told him

they were i nvestigating a fight with a gun that happened four blocks away. Once

outside, Mr. Regalado saw appellant handcuffed.

D. Disposition of the Section 777 Proceeding

, Followed By T his
Appeal

In support of the motion to suppress, a ppellant , invoking Fourth Amendment

standards, argued that the officers’ warrantless entry into the house at 864

Commercial was an illegal search and that the detention of appellant was an illegal

seizure

. The thrust of h is argument was that al l the officers kn e w was that, four

blocks away, there had been a fight involving various individuals, who by de s cription

could be identified only by their clothing color and ethnicity

, and that someone had a

gun. Based on th is limited information, reported to the officer s second

- hand by the

dispatcher, appellant’s counsel contended, “I don’t beli e ve that the people have met

their burden that there is a reasonable and articulable suspicion that anybody,

especially [appellant], is involved in what hap pened four blocks away, and .

. . ten

minutes earlier. ¶ .

. . I think what is more egregious wi th respect to entering the

home



### . . . , there needs to be exigent circumstances absent a warrant. We don’t have5

that. There are not exigent circumstances.” 2

The court disagreed. At the conclusion of the section hearing on July 9,

2015, it ru led, “The motion is denied. There were circumstances that warranted

asking everyone to get out of the house.” On July 13, 2015, following denial of his

motion to suppre ss, appellant admitted violating probation by consuming alcohol.

On that same day, he was continued as a ward of the court on probation. (Ibid.) He

was ordered detained for sixty days, and ordered to serve an additional sixty days of

house

- arrest or electronic monitoring following his release from the Youth Services

Center.

A timely notice of appeal from the court’s dispositional order was filed on

July 23, 2015. Appellant’s counsel filed a brief under Wende

, supra

, 25 Cal.3d 436,

and to assist us in our independent review of the record, noted the following issues in

the record that might arguably support the appeal ( see Anders v. California (1967)

386 U.S. 738 , 744 ) : ( 1 ) Is the Fourth Amendment exclusionary rule applicable in

juvenile violatio n of probation hearings under section 777? ( 2 ) Did law enforcement

have a reasonable suspicion that appellant had been involved in the criminal activity

described in the 911 call, as necessary to lawfully detain appellant, by ordering him

out of the house at gun point? ( 3 ) Was appellant under de facto arrest when he was

ordered out of the house at gun point, ordered to sit on the curb, and handcuffed?

And if yes as to this third issue , was there proba ble cause to support the arrest?

II. DISCUSSION

Having conducted an independent review of the record on appeal under

People v. Wende

, supra, 25 Cal.3d 436, and considered whether there are any

arguable issues that merit briefing, we find none.

I n the course of our review, we have ta ken into account the specific issues

2 Appellant made no objection to the prosecution’s reliance on anonymously
reported information relayed from the dispatcher under the Harvey

- Madden rule. ( S ee People v. Romeo ( 2015) 240 Cal.App.4th 931, 942)

.6

appel l ant’s appointed counsel identified as potentially arguable. In accordance with

People v. Kelly (2006) 40 Cal. 4th 106, 110, we note that ( 1 ) “although section

1538.5 continues to provide the exclusive procedure by which a defendant may seek

suppression of evidence obtained in a search or seizure that violates ‘state

constitutional standards,’ a court may exclude the evidence on that basis only if

exclusion is also mandated by the federal exclusionary rule applicable to evidence

seized in violation of the Fourth Amendment” ( People v. Lazlo (2012) 206

Cal.App.4th 1063, 1072 ( Lazlo ) )

, and ( 2 ) even assuming inculpatory e vidence was

obtained in this case in violation of the Fourth Amendment, under “fed eral

constitutional principles,

. . . the evidence obtained [was] nonetheless admissible to

estab lish a probation violation.” ( Id. at p. 1069 ; see In re D.J. (2010) 185

Cal.App.4th 278, 284 [ s ection 777 proceeding s are “ the juvenile court equivalent of

probation revocation procee dings in adult criminal cases”] ; People v. Harrison

(1988) 199 Cal.App.3d 803, 811 [“federal law does not require application of the

exclusionary rule to probation revocation hearings”]; People v. Nixon (1982) 131

Cal.App.3d 687, 691, 693

– 694 [same].) Accordingly, absent “ police conduct

[that]

. . . shocks the conscience” ( Lazlo , supra 206 Cal.App. 4th at 1070), the

evidence gathered in connectio n with appellant’s detention and arrest on June 13,

2015 was admissible to prove a probation violation

, notwithstanding any of the

Fourth Amendment issues raised in appellant’s motion to suppress. None of the

police conduct at issue in this case transgresses the “shocks the conscience” standard.

III. DISPOSITION

The juvenile court’s dispositional order of July 13 , 2015 is affirmed.7 _________________________ Streeter, J.

We concur:

_________________________ Reardon, Acting P.J.

_________________________ Rivera, J.

A145797/ In re C.C.