P. v. Castanon

Filed 1/19/07  P. v. Castanon CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

 IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

            APPEAL from a judgment of the Superior Court of Kings County.  Peter M. Schultz, Judge.

            Robert Navarro, under appointment by the Court of Appeal, for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Lloyd G. Carter and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

            Defendant Paul Dominguez Castanon was convicted by jury of oral copulation committed upon an unconscious victim, a felony, and two controlled substance misdemeanors:  possession of paraphernalia and being under the influence.  The trial court sentenced him to 16 years (a doubled upper term for a second strike), and it ordered the misdemeanors to run concurrently with the prison term.  Defendant challenges his misdemeanor convictions only, claiming that the rationale stated by the trial court for dismissing a further misdemeanor charge of obstructing an officer, that defendant's detention was unlawful because the officer failed to advise defendant of the basis for the detention, tainted the seizure of evidence of the two misdemeanor convictions.  We affirm. 

FACTS

            At a time when defendant was temporarily residing at the home of his sister, he sexually assaulted his 22-year-old niece.  He went into the niece's bedroom while she was sleeping, ejaculated on her right calf and attempted to place his penis in her mouth, stopping when she started to awaken.  The niece did wake up feeling something on her lips and then seeing defendant's penis on her mouth.  When she yelled at him, defendant put on his underwear and left the room.  That same morning, the niece reported the incident to her work supervisor at the health clinic where she worked; the supervisor telephoned the police. 

            Kings County Deputy Sheriff Wayne Brabant promptly responded to the health clinic to interview the niece, who emotionally described to him the above facts.  Brabant then went to the residence to investigate.  There, he saw defendant standing in the driveway with a duffle bag.  Brabant identified himself and admonished defendant to drop the bag and place his hands on a vehicle parked in the driveway.  Defendant dropped the bag and asked what was going on.  Brabant responded that he would explain after defendant hands were in place on the vehicle.  Defendant complied, but as Brabant approached, defendant nervously starting shifting his weight from foot to foot.  Defendant identified himself, providing confirmation that he was the person for whom Brabant was looking. 

            Concerned for his safety, Brabant grabbed defendant's right wrist to handcuff him.  Defendant lifted his free hand off of the vehicle and spun around to face Brabant, again asking what was going on.  Still holding one of defendant's wrists, Brabant repeated his demand that defendant place his hands on the vehicle with his back to Brabant.  Defendant unsuccessfully tried to break free and then tried to tackle Brabant, to which Brabant responded by elbowing defendant twice in the face, grabbing him by the head and taking defendant down to the ground.  As Brabant urged defendant to stop resisting detention, defendant tossed items from his pockets onto the lawn and then allowed Brabant to handcuff him. 

 Upon placing defendant securely within his patrol vehicle, Brabant went to view more closely the items tossed on the lawn.  He found a clear plastic bag, an ink pen broken off at both ends and lightly covered with a white residue of methamphetamine, a bolt, a lighter and a piece of foil.  Brabant informed defendant of his Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436) and defendant agreed to waive his rights and talk further.  When asked whether he had used any illegal drugs, defendant responded, yes, he used â€