In re T.F.-G., a Person Coming
H050112 (Santa Clara County Super. Ct. No. 21JV45239A)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 8/24/23
CERTIFIED FOR PUBLICATION
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
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 (
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
I. BACKGROUND
A. The Arrest and Search2
On the afternoon of June 13, 2021, two uniformed San Jose police officers—Jason Villaruz and Joseph Ferrante—were traveling in an unmarked
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 pat search 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?”
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.
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
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
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.” (
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.)
1. Consensual Encounters, Detentions, and Section 148
” ‘Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individual‘s liberty. [Citations.]’ ” (People v. Linn (2015) 241 Cal.App.4th 46, 57 (Linn).) Unlike consensual encounters, “[a] detention . . . is a seizure, albeit a limited one, for which reasonable suspicion is required.” (Ibid.; see also People v. Brown (2015) 61 Cal.4th 968, 981 (Brown).)
“A person is seized by the police . . . when the officer, ’ “by means of physical force or show of authority,” ’ terminates or restrains [the person‘s] freedom of movement, [citation], ‘through means intentionally applied.’ ” (Brendlin v. California (2007) 551 U.S. 249, 254, italics omitted (Brendlin).) In distinguishing a detention from a consensual encounter, “a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officer‘s requests or otherwise terminate the encounter.” (Florida v. Bostick (1991) 501 U.S. 429, 439 (Bostick); see also Brown, supra, 61 Cal.4th at p. 980; People v. Tacardon (2022) 14 Cal.5th 235, 241-242, 252 (Tacardon).)
One who flees an officer‘s lawful attempts to detain violates
2. Standard of Review
On a motion to suppress, once the accused has established that the search or seizure was without a warrant, “the burden is on the prosecution to prove evidence seized . . . falls within a recognized exception” to the warrant requirement—here, that T.F.-G. was lawfully arrested on probable cause to believe he resisted a lawful detention. (See Fayed, supra, 9 Cal.5th at p. 182.) “Thereafter, a defendant can respond by pointing out any inadequacies in that justification for warrantless search.” (Ibid.)
On appeal, our standard of review is well established: “We defer to the trial court‘s findings, express or implied, where supported by substantial evidence. In determining whether . . . the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment.” (People v. Glaser (1995) 11 Cal.4th 354, 362; In re Lennies H. (2005) 126 Cal.App.4th 1232, 1236 [applying same standard in juvenile proceedings under
3. T.F.-G.‘s Flight as a Violation of Section 148
T.F.-G. contends that the police officers had not detained or attempted to detain him before he fled and that he consequently8 was not lawfully arrested
Our conclusion is grounded in the efficient and unmistakable escalation in the officers’ intrusion into the group‘s affairs. At the outset, stopping the car mid-lane to approach the group on foot suggested an interest in more than a casual exchange of pleasantries, even if this alone was not coercive. The officers’ inquiry as to a potential cannabis offense then alerted the group that it was “the focus of the officer[s‘] particularized suspicion.” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 791; see id. at p. 790; see also In re J.G. (2014) 228 Cal.App.4th 402, 412 (J.G.) [ascribing particular significance to the fact that officers had “clearly conveyed” that they suspected individuals of unlawful activity].) Although the drug offense was minor, it was nonetheless an occasion for the bodily seizure of first one and then another of T.F.-G.‘s associates: Ferrante secured their hands, patted down their bodies, and directed them to sit on the curb so that he could turn to the next member of the group—all in T.F.-G.‘s plain view. (Cf. Tacardon, supra, 14 Cal.5th at p. 253-254 [remand for trial court‘s determination whether defendant driver was aware that passenger, after leaving car, had been detained.) “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person. . . . [A] careful exploration of the outer surfaces of a person‘s clothing all over his or her body in an attempt to find weapons . . . performed in public by a policeman while the citizen stands
By the time Ferrante asked T.F.-G. to “just come over here,”10 T.F.-G. had observed the unmistakable and methodical treatment of the group of which he was an obvious member. Ferrante‘s systematic physical intrusion and show of authority as to Alex and E.L. would have objectively communicated to a reasonable person in T.F.-G.‘s position that he was not free to go. (Tacardon, supra, 14 Cal.5th at pp. 253-254 [“show of authority towards others can communicate that the defendant is also not free to leave“]; Brendlin, supra, 551 U.S. at p. 257 [“a sensible person would not expect a police officer to allow people to come and go freely from the physical focal point of an investigation into faulty behavior or wrongdoing“].) This point was driven home when Ferrante insisted that T.F.-G. come over after T.F.-G. questioned why this was warranted.
T.F.-G.‘s argument that the encounter reasonably appeared consensual finds superficial support in a litany of cases holding under the totality of the circumstances that a reasonable person would feel free to terminate an encounter with officers evincing interest in their immediate activities, background, and mere presence at a particular public location. (See, e.g., People v. Lopez (1989) 212 Cal.App.3d 289 [a man sitting on the hood of a parked car was free to leave officers on foot patrol who asked whether the car was his, what his reason was for sitting on a car that wasn‘t his, where his pool cue was if he was waiting for friends to play pool, and whether he had identification]; see id.
at pp. 291, 294 (conc. opn. of Crosby, J.) [“In the real world . . . [y]ou are protected by the Fourth Amendment only to the extent you are willing to risk the physical violation of your person with armed officers.“]; Cartwright, supra, 72 Cal.App.4th at
For example, in United States v. Drayton (2002) 536 U.S. 194 (Drayton), three plain-clothes officers boarded a bus—during a scheduled stop and with the driver‘s consent—to conduct routine drug and weapons interdiction not targeted at any particular passenger. (Id. at p. 197; see also Tacardon, supra, 14 Cal.5th at pp. 252-253 [discussing Drayton].) Although two officers positioned themselves at the front and rear of the bus, respectively, they did so without blocking the exit. (Drayton, supra, 536 U.S. at pp. 197-198.) The third officer spoke to the passengers in turn, starting from the rear of the bus and proceeding forward, about their travel plans and their luggage: the officer displayed his badge but positioned himself so he would not block the passenger‘s access to the aisle during questioning. (Id. at p. 198.) Addressing two people seated together, the officer informed them that the police were ” ‘attempting to deter drugs and illegal weapons being transported on the bus,’ ” and received permission to check a bag, in which he found no contraband. (Id. at p. 199.) One of the two passengers then consented to a patdown, which resulted in the discovery of contraband and his arrest. (Id. at p. 199.) The other passenger then also consented to a patdown, which revealed objects similar to drug packaging and resulted in his arrest. (Ibid.) The United States Supreme Court held that there “were ample grounds for the District Court to conclude that ‘everything that took place between Officer Lang and [the defendants] suggest[ed] that it was cooperative’ and that there ‘was nothing coercive [or] confrontational’ about the encounter.” (Id. at p. 204; see also Bostick, supra, 501 U.S. at p. 436 [“the mere fact that Bostick did not feel free to leave the bus did not mean that the police seized him” because as “a passenger on a bus that was scheduled to depart[] [h]e would not have felt free to leave the bus even if the police had not been present” and “whether or not the police conduct at issue was coercive“].) Here, in contrast, the officers interrupted their drive to engage
For the foregoing reasons, we find no fault with the juvenile court‘s determination that there was probable cause to arrest T.F.-G. for violation of
B. Constitutionality of California‘s Firearm Licensing Regime11
Although
Fundamentally, T.F.-G. argues that if any requirement for issuance of a license to carry a loaded firearm was unconstitutional, then the application of
1. The Second Amendment
The Second Amendment confers “an individual right to keep and bear arms.” (District of Columbia v. Heller (2008) 554 U.S. 570, 595 (Heller); see also McDonald v. City of Chicago (2010) 561 U.S. 742, 791 (McDonald) [holding that the Fourteenth Amendment‘s Due Process Clause incorporates the Second Amendment right, making it applicable to the states].)12 But “the right secured by the Second Amendment is not unlimited.” (Heller, supra, 554 U.S. at p. 626.)
In Heller, the Supreme Court held that a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment. (Heller, supra, 554 U.S. at pp. 573, 635.) The court explained that “the inherent right of self-defense has been central to the Second
In Bruen, the high court, in a six-to-three decision, extended Heller to recognize “an individual‘s right to carry a handgun for self-defense outside the home.” (Bruen, supra, 597 U.S. at. p. ___ [142 S.Ct. at p. 2122], italics added.) Moreover, the court ruled that the licensing regime in New York, one of six states in which “the government . . . conditions issuance of a license to carry on a citizen‘s showing of some . . . special need,” violates the Constitution by requiring an applicant to demonstrate “a special need for self-defense.” (Ibid.)
Even so, the Bruen court allowed that the Second Amendment right remains “subject to certain reasonable, well-defined restrictions.” (Bruen, supra, 597 U.S. at p. ___ [142 S.Ct. at p. 2156].) The court provided a framework for evaluating whether a gun regulation violates the Constitution: “When the Second Amendment‘s plain text covers an individual‘s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation‘s historical tradition of firearm regulation. Only then may a court conclude that the individual‘s conduct falls outside the Second Amendment‘s ‘unqualified command.’ ” (Id. at. p. ___ [142 S.Ct. at pp. 2129-2130].) Although the court stopped short of providing “an exhaustive survey of the features that render regulations relevantly similar under the Second Amendment,” it did point to “two metrics: how and why the regulations burden a law-abiding citizen‘s right to armed self-defense.” (Id. at. p. ___ [142 S.Ct. at pp. 2132-2133].)
In a concurrence, Justice Kavanaugh, joined by Chief Justice Roberts, wrote “to underscore . . . the limits of the Court‘s decision.”13 (Bruen, supra, 597 U.S. at. p. ___ [142 S.Ct. at p. 2161] (conc. opn. of Kavanaugh, J.).) Bruen “does not prohibit States from imposing licensing requirements for carrying a handgun for self-defense. In particular, the Court‘s decision does not affect the existing licensing regimes—known as
2. Facial and As-Applied Challenges
“A facial challenge to the constitutional validity of a statute or ordinance considers only the text of the measure itself, not its application to the particular circumstances of an individual. [Citation.] ’ “To support a determination of facial unconstitutionality, voiding the statute as a whole, petitioners cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute . . . . Rather, petitioners must demonstrate that the act‘s provisions inevitably pose a present total and fatal conflict with applicable constitutional prohibitions.” ’ ” (Tobe, supra, 9 Cal.4th at p. 1084; see also Regina v. State (2023) 89 Cal.App.5th 386, 401; D.L., supra, 93 Cal.App.5th at p. 157.) Put differently, “[a] facial challenge seeks to void the statute as a whole by showing that ’ “no set of circumstances exists under which the Act would be valid,” i.e., that the law is unconstitutional in all of its applications.’ ” (D.L., supra, 93 Cal.App.5th at p. 157, quoting Washington State Grange v. Washington State Republican Party (2008) 552 U.S. 442, 449.) “[T]he ‘minimum’ our cases have accepted is a showing that the statute is invalid ‘in the generality or great majority of cases.’ ” (Buenrostro, supra, 6 Cal.5th at p. 388.)
In contrast, “[a]n as applied challenge may seek . . . relief from a specific application of a facially valid statute or ordinance to an individual or class of individuals who are under allegedly impermissible present restraint or disability as a result of the manner or circumstances in which the statute or ordinance has been applied.” (Tobe, supra, 9 Cal.4th at p. 1084.) Such a challenge “contemplates analysis of the facts of a particular case or cases to determine the circumstances in which the statute or ordinance has been applied and to consider whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right. [Citations.] When a criminal defendant claims that a facially valid statute or
3. Analysis
T.F.-G., in his words, “makes a facial challenge to the law he was found to have violated.” Because T.F.-G. challenges the constitutionality of
T.F.-G. contends that
As a threshold matter, we reject the Attorney General‘s contention that T.F.-G. lacks standing to challenge the constitutionality of
Notwithstanding T.F.-G.‘s standing to raise his claims, on the merits of his facial challenge to
We begin with the conceded constitutional infirmity in California‘s licensing regime as it existed at the time of T.F.-G.‘s offense. Under Bruen, New York‘s “proper cause” license requirement was unconstitutional because it prevented “law-abiding citizens with ordinary self-defense needs from exercising their right to keep and bear arms.” (Bruen, supra, 597 U.S. at. p. ___ [142 S.Ct. at p. 2156].) The petitioners included Koch and Nash, “law-abiding, adult citizens” whom at the first step of its analysis the Bruen Court deemed to have a presumptively protected right to bear arms. (Id. at p. ___ [142 S.Ct. at pp. 2124-2125, 2134-2135].) Thus, the fundamental precept of Bruen is that the “proper cause” requirement unconstitutionally operated “to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose.” (Id. at. p. ___ [142 S.Ct. at p. 2150].) California‘s good cause requirement, as it existed, is undisputedly susceptible to the same challenge.
Bruen, McDonald, and Heller did not involve facial constitutional challenges to provisions criminalizing carrying firearms without a license, but only challenges to particular restrictions on either the availability or utility of licenses. In Bruen, Brandon Koch and Robert Nash successfully challenged the proper-cause requirement in New York‘s licensing scheme—under which they were denied for failure to demonstrate a unique need for self-defense—because New York could not condition the issuance of a license on such a
T.F.-G.‘s facial challenge is fundamentally different. He challenges neither the application of a licensing requirement to unconstitutionally infringe his right to bear arms nor the imposition of criminal penalties against him as a consequence of such requirement, but instead the state‘s authority to impose criminal penalties on any individual who carries a loaded handgun in public in violation of the state‘s license regime, regardless of whether the noncompliance stemmed from a constitutionally sound requirement.
In Bruen, the state‘s power to do so was not called into question. There, the Supreme Court confirmed that states may impose “reasonable, well-defined” restrictions on the constitutionally protected “right to bear commonly used arms in public” and set forth the means by which courts may evaluate whether licensing requirements withstand constitutional scrutiny. (Bruen, supra, 597 U.S. at p. ___ [142 S.Ct. at pp. 2129-2130, 2134-2135, 2156]; see also Heller, supra, 554 U.S. at pp. 626-627.) Indeed, the Bruen Court was “clear” that “nothing in [its] analysis should be interpreted to suggest the unconstitutionality of the 43 States’ ‘shall-issue’ licensing regimes, under which a ‘general desire for self-defense is sufficient to obtain a [permit].’ [Citation.] Because these licensing regimes do not require applicants to show an atypical need for armed self defense, they do not necessarily prevent ‘law-abiding, responsible citizens’ from exercising their Second Amendment right to public carry. [Citation.] Rather, it appears that these shall-issue regimes, which often require applicants to undergo a background check or pass a firearms safety course, are designed to ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’ [Citation.] And they likewise appear to contain only ‘narrow, objective, and definite standards’ guiding licensing officials, [citation], rather than requiring the ‘appraisal of facts, the exercise of judgment, and the formation of an opinion,’ [citation]—features that typify proper-cause standards like New York‘s.” (Bruen, supra, 597 U.S. at p. ___ [142 S.Ct. at p. 2138], fn. 9; see also id. at p. ___ [142 S. Ct. at p. 2162] (conc. opn. of Kavanaugh, J.).)
We do not accept T.F.-G.‘s premise that section 25850 is facially unconstitutional if any licensing regulation in California may be invoked to unconstitutionally deny a license. Although framed as a default prohibition,
To hold that
First, if a particular licensing condition renders the entire licensing regime unconstitutional, then it may become unconstitutional to impose penalties for failure to obtain a license. But we follow the D.L. court‘s persuasive determination that the “good cause” licensing requirement is severable from the balance of California‘s licensing requirements, such that a functioning licensing regime remains in place if the good cause requirement were removed. (D.L., supra, 93 Cal.App.5th at pp. 163-165.)19 Assuming that the good cause requirement is susceptible to a facial constitutional challenge under Bruen because it can never constitutionally be applied to deny a license, there are independent licensing restrictions in California.
Second, to the extent the unconstitutional condition is severable, T.F.-G.‘s facial challenge to the enforcement provision requires either an interpretation of the Second Amendment that would bar California from requiring licenses at all or else a showing that the remaining licensing conditions render
For the foregoing reasons, we reject T.F.-G.‘s facial challenge to
III. DISPOSITION
The judgment is affirmed.
LIE, J.
I CONCUR:
GROVER, ACTING P.J.
People v. T.F.-G.
H050112
Bromberg, J., concurring
I respectfully concur in the judgment. I agree with the majority‘s analysis of the motion to suppress and join in its conclusion that the police had probable cause to arrest T.F.-G. for resisting a peace officer under
As the majority points out, although T.F.-G. failed to raise a Second Amendment challenge in the trial court, we have discretion to consider this challenge on appeal because it raises a pure question of law. (See, e.g., Ward v. Taggart (1959) 51 Cal.2d 736, 742.) T.F.-G, however, has raised an unusual question of law. Under the Supreme Court‘s developing Second Amendment jurisprudence, to establish the validity of a restriction on carrying firearms the government must show the restriction is “consistent
T.F.-G. has not offered any historical materials or analysis in support of his Second Amendment challenge. In addition to placing the government at an unfair disadvantage on appeal, and depriving this court of the trial court‘s views, the failure to supply historical materials or analysis makes it difficult for this court to engage in the historical determination that the Supreme Court now appears to require. Consequently, I do not believe that we are in a position to properly evaluate T.F.-G.‘s Second Amendment challenge and therefore should not entertain it.
Accordingly, I concur in the majority‘s decision to affirm the judgment.
Bromberg, J
People v. T.F.-G.
H050112