People v. T.F.-G. (In re T.F.-G.)

Santa Clara County Super. Ct. No. 21JV45239A The Honorable Franklin E. Bondonno The Honorable L. Michael Clark

Attorneys for Defendant and Appellant T.F.-G.: Lori A. Quick under appointment by the Court of Appeal for Appellant Jeffrey Manning-Cartwright under appointment by the Court of Appeal for Appellant

Attorneys for Plaintiff and Respondent The People: Rob Bonta Attorney General Lance E. Winters, Chief Assistant Attorney General Jeffrey M. Laurence, Senior Assistant Attorney General Eric D. Share, Supervising Deputy Attorney General Brady Baldwin, Deputy Attorney General

LIE, J.

In the midst of a group contacted by officers for smoking cannabis on the street, 16-year-old T.F.-G. witnessed first one and then another of his companions be restrained, searched, and made to sit on the curb as the officers worked their way through the group. Rather than submit in turn when the officers turned their attention to him, T.F.-G. ran. Chased, tackled, and punched, he was arrested for resisting or delaying a peace officer (Pen. Code, § 148, subd. (a)).^[1] In a search incident to that arrest, the police found a loaded handgun in his pocket, which T.F.-G. was not licensed to carry.

On appeal, T.F.-G. raises two constitutional challenges asserting the infringement of individual rights guaranteed by the Fourth and Second Amendments.

The first constitutional challenge is personal to him and specific to his circumstances, turning on the existence of probable cause for his arrest for resisting or delaying a peace officer-the asserted basis for the eventual search that revealed his possession of a loaded handgun in public. Because the alleged resistance was T.F.-G.'s flight from officers intent on detaining him, the prosecution's burden was to prove that a reasonable person in T.F.-G.'s position would have understood he was not free to leave. The totality of the circumstances on this record satisfies that burden.

T.F.-G.'s second constitutional challenge transcends the personal or particular. In a facial challenge to the prohibition on the unlicensed public carrying of loaded firearms (§ 25850), he does not dispute a state's general authority to limit the public carrying of loaded firearms to those it has licensed to do so, nor does he contend that all of the state's conditions for licensure are unconstitutional; instead, he targets the statutory provision that permits the prosecution of any unlicensed person carrying a loaded firearm in public, irrespective of the reason for their unlicensed status.

Given the breadth of T.F.-G's facial challenge, New York State Rifle &Pistol Association, Inc. v. Bruen (2022) 597 U.S. __[142 S.Ct. 2111] (Bruen) does not avail him. Although California's "good cause" licensing requirement is undisputedly unconstitutional under Bruen, the unconstitutionality of a discrete licensing requirement does not render section 25850 facially unconstitutional. We therefore affirm.

I. BACKGROUND

A. The Arrest and Search^[2]

On the afternoon of June 13, 2021, two uniformed San Jose police officers-Jason Villaruz and Joseph Ferrante-were traveling in an unmarked police car near the intersection of Gridley Street and Percivale Drive when they came upon a group of five

people in and around a red Ford Mustang parked curbside. Smelling what they described as "[f]reshly burnt" marijuana or "marijuana being smoked" emanating from the group through the open windows of the police car on an otherwise unoccupied street, the officers stopped to investigate the smell.

The officers parked their car in the lane of traffic near the group, then approached on foot. Villaruz began with the individuals on the sidewalk. Identifying themselves as San Jose police officers, Villaruz asked the group if they were" 'just hanging out smoking weed.'" Some in the group responded in the affirmative. Villaruz made a brief initial contact with T.F.-G., during which he neither told T.F.-G. that he was under detention nor that he was free to go before moving on to contact other members of the group.

Ferrante's initial focus was on the two young men in the Mustang. Ferrante, "familiar with [T.F.-G.'s] family, his father, his older brother, and him," recognized T.F.-G. sitting in a chair next to the car and T.F.-G.'s older brother "rolling a marijuana joint" in the car's passenger seat. Ferrante adopted a congenial tone with the car's occupants but told T.F.-G.'s brother, "You wanna put it out" and asked the driver (later identified only as "Alex") whether there was "anything other than weed in the car."^[3]After asking the question, Ferrante directed Alex to "come out of the car real quick" and asked if Alex had anything on him that "could hurt me." Ferrante proceeded to patsearch Alex, using one hand to secure Alex's hands together while using the other to rummage over his outer clothing. As Ferrante "escorted" Alex by the arm to the sidewalk and "told him to sit on the curb," he directed E.L., a second member of the group who was standing in front of the Mustang, to turn around; Ferrante then searched E.L. in the same manner that Ferrante had searched Alex. When E.L. asked the reason for this law

enforcement attention, Ferrante did not respond. After completing the pat search, Ferrante directed E.L. to sit on the curb, next to Alex.

While E.L. was proceeding to the curb, Ferrante saw T.F.-G. and said, "Mr. [G.], how you doin', bud, it's been a minute." The following exchange ensued.

Ferrante: "Can you come over here for a minute?"

T.F.-G.: "For what?"

Ferrante: "Huh?"

T.F.-G.: "For what?"

Ferrante: "Just come over here."

T.F.-G.: "For what?"

Ferrante: "Because I asked you to. Don't make this . . ."

As Ferrante was beginning to say, "Don't," T.F.-G. took off at a sprint down the street.^[4]

At the suppression hearing, Ferrante testified that T.F.-G. "would have been the next one to contact and then have a seat." Although he phrased the directive to "come over here" as a request, Ferrante did not intend T.F.-G to have the option of leaving or refusing; Ferrante only used the form of a request because, to avoid escalation, he "tr[ies] not to give demands" when officers are outnumbered.

Villaruz caught T.F.-G., tackled him to the ground, then punched him in the right eye. T.F.-G. cried out as Villaruz commanded, "Stop! On the fucking ground man! Don't fucking run! Hands behind your fucking back!" while a woman off camera protested, "Don't hit him like that!" (Emphasis in original.) Villaruz handcuffed T.F.-G. and performed a "quick" search, which included removing and inspecting all contents of

T.F.-G.'s jeans pockets. Villaruz then sat T.F.-G. against a truck, warning that he would punch T.F.-G. in the face if he moved.^[5]

Later, when putting T.F.-G. in a patrol car for transport, Villaruz searched T.F.-G. a second time.^[6] This time, Villaruz found a loaded unregistered handgun in the right pocket of the basketball shorts T.F.-G. was wearing under his jeans.

B. Procedural History

Two days after T.F.-G.'s arrest, the Santa Clara County District Attorney petitioned the juvenile court to declare T.F.-G. a ward of the juvenile court pursuant to Welfare and Institutions Code section 602, subdivision (a). The District Attorney alleged as grounds for wardship T.F.-G.'s commission of the following offenses: (1) carrying a loaded firearm not registered to him (§§ 11106, 25850); (2) carrying a concealed firearm (§25400, subd. (a)(2)); (3) minor in possession of a firearm capable of being concealed upon the person (§ 29610); and (4) resisting, delaying, or obstructing an officer, a misdemeanor (§ 148, subd. (a)(1)).

Several months after the initiation of wardship proceedings, T.F.-G. moved to suppress the firearm and other evidence, on the ground that law enforcement had violated

his Fourth Amendment rights in searching him. Following an evidentiary hearing, the juvenile court issued a written order denying T.F.-G.'s motion.

At the jurisdictional hearing, T.F.-G. admitted the violation of section 25850, subdivision (a) (count 1)-which the court found to be a felony-and the misdemeanor violation of section 148, subdivision (a)(1) (count 4). The court dismissed the remaining counts.

At the dispositional hearing, the juvenile court adjudged T.F.-G. a ward of the court and placed him on probation. As one consequence of the wardship adjudication, T.F.-G. "shall not own, or have in possession or under custody or control, a firearm until [he] is 30 years of age." (§ 29820, subd. (b).) T.F.-G. timely appealed.

II. DISCUSSION

A. Motion to Suppress

" 'The Fourth Amendment to the federal Constitution prohibits unreasonable searches and seizures.'" (People v. Fayed (2020) 9 Cal.5th 147, 182 (Fayed); see also People v. Williams (1999) 20 Cal.4th 119, 125-126.) Absent a search warrant, "a search is reasonable only if it falls within a specific exception to the warrant requirement." (Riley v. California (2014) 573 U.S. 373, 382.) Incident to a lawful arrest, for example," 'it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape.'" (Id. at p. 383; see also Fayed, supra, 9 Cal.5th at p. 182.)

T.F.-G. argues that the juvenile court erred in denying his motion to suppress because he was not searched incident to a lawful arrest as the officers lacked probable cause to believe that he was resisting or delaying the lawful performance of their duties, in violation of section 148, subdivision (a). T.F.-G.'s flight, under this theory, was no more than his exercise of freedom to terminate what was purely a...