P. v. Greenwood

Filed 9/13/07 P. v. Greenwood CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, William J. McGrath, Judge. Affirmed.

A jury found Sandra Greenwood guilty of battery on a police officer with injury, resisting arrest, and being under the influence of a controlled substance. (Pen. Code,  243, subd. (c)(2), 148, subd. (a)(1); Health & Saf. Code,  11550, subd. (a).) The court sentenced Greenwood to three years of probation on the battery conviction and a 180-day concurrent jail term on the two remaining counts.

On appeal, Greenwood contends there was insufficient evidence to show the deputy sheriff was acting in the lawful performance of his duties, which is a necessary element to support the battery and resisting arrest convictions. We reject this contention and affirm.

FACTUAL SUMMARY

At about 2:00 p.m., San Diego County Deputy Sheriff Howard Kluge received a radio call to conduct a welfare check on Greenwood's mother (Phyllis), who was living in a mobile home. The dispatcher told Deputy Kluge that Phyllis was about 80 years old, had a medical condition requiring the use of oxygen, and had not been seen in awhile. Deputy Kluge immediately went to the mobile home park and talked to two park employees. The employees said they were worried because they had not seen Phyllis in months and it was unusual not to see her for such a long time. They also said Phyllis's car was in the driveway and Phyllis's daughter had been staying in Phyllis's mobile home.

Deputy Kluge then talked to David Cook, a plumber who was changing the gas meters for the mobile homes. Cook told Deputy Kluge he had gone to Phyllis's mobile home earlier that day and Greenwood answered the door. Greenwood refused to let Cook inside the unit for the needed work. Cook said Greenwood had come out of the unit during the interaction and "aggressively" approached him. Greenwood had a blank stare on her face and Cook thought she was "spun out on something."

After Deputy Kluge requested backup, he went to Phyllis's mobile home. In response to Deputy Kluge's knock, Greenwood opened the door just wide enough to squeeze through and then quickly closed the door behind her. Deputy Kluge noticed Greenwood was hyperactive and "twitchy," and she was acting in a paranoid fashion. Greenwood's pupils were very small, which was unusual because the porch was dark and shady, and Deputy Kluge thought she was acting like she was under the influence of a controlled substance.

When Deputy Kluge said he was there to check on Phyllis, Greenwood became agitated and spoke loudly, even though the deputy was standing right next to her. Greenwood said that Phyllis was in Palm Springs. Deputy Kluge asked to use her phone to call Phyllis to confirm this information. Greenwood agreed to bring him her phone, and then opened the door just wide enough to squeeze through. However, before she could shut the door, Deputy Kluge put his foot in the doorjamb. He testified that he was concerned that Phyllis was inside and might need medical attention and that Greenwood could close the door and barricade herself inside the house.

Deputy Kluge told Greenwood to leave the door open because he might need to go inside if he could not confirm Phyllis's whereabouts. Greenwood responded by repeatedly slamming the door against Deputy Kluge's foot, yelling "you are not coming in my house." Deputy Kluge told her she was battering a police officer and it was against the law. When she refused to stop, Deputy Kluge decided to arrest Greenwood for battery on a police officer and being under the influence of a controlled substance.

Deputy Kluge then told Greenwood to come out of the house because she was under arrest. Greenwood ignored him and continued hitting his foot with the door. She was combative and angry, and yelling loudly. Deputy Kluge told her he was going to strike her if she did not stop hitting his foot with the door. She then began using all of her body weight to slam the door against Deputy Kluge's foot. Realizing she was "completely irrational" and was going to hurt his foot, Deputy Kluge tried to pull her out of the house. She pulled away and attempted to close the door. Deputy Kluge held onto her sleeve and used his open palm to hit her on the chin.

Greenwood continued to struggle and pull away. She hit Deputy Kluge's hand, causing him to feel substantial pain. He then grabbed Greenwood and pulled her out of the house. After a struggle, the deputy arrested and handcuffed her. Greenwood was transported to the hospital because she was complaining about pain in her jaw from the officer's strike during the struggle at the door. A later sample of Greenwood's blood tested positive for methamphetamine.

Shortly after the arrest, Deputy Kluge called a phone number given to him by Greenwood and spoke with a person who identified herself as Phyllis. She said she was in Sun City and was fine. A doctor later determined Deputy Kluge's thumb was broken, requiring him to undergo surgery and a lengthy rehabilitation.

At trial, John Treuting, a toxicologist, testified that generally a person under the influence of methamphetamine is agitated, paranoid, delusional, violent, aggressive, confused, and is unable to focus on multiple things. Treuting testified that Greenwood's conduct on the day she was arrested was consistent with a person under the influence of methamphetamine except that the pupils are usually dilated as opposed to constricted. Treuting testified that other drugs for which Greenwood was not tested could have caused her pupils to be constricted. It was his opinion that Greenwood was under the influence of methamphetamine on the day she was arrested.

DISCUSSION

I. Deputy Was Acting in Lawful Performance of His Duties

A. Applicable Legal Principles

To prove a battery on a peace officer and a resisting arrest offense, the prosecution must show the officer was engaged in the lawful performance of his or her duties. (Pen. Code,  243, subd. (c)(2), 148, subd. (a)(1); see People v. Wilkins (1993) 14 Cal.App.4th 761, 776; People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7; People v. White (1980) 101 Cal.App.3d 161, 166-167.) This element is not proved if the arrest was unlawful or the officer used excessive force on the defendant. (People v. Wilkins, supra, 14 Cal.App.4th at p. 776; People v. Delahoussaye, supra, 213 Cal.App.3d at p. 7.)

Greenwood does not dispute that the jury was properly instructed on these concepts. She instead challenges the sufficiency of the evidence to support the jury's findings on the lawful performance issue. She contends Deputy Kluge was not acting in the lawful performance of his duties because (1) he had no probable cause to arrest her; (2) his stepping on the doorjamb to prevent the door from closing violated her Fourth Amendment rights; and (3) Deputy Kluge used excessive force in his encounter with her.

In evaluating these contentions, we review the underlying facts in the light most favorable to the judgment to determine whether there is substantial evidence from which a reasonable trier of fact could find the deputy was acting in the lawful performance of his duties. (See People v. Kraft (2000) 23 Cal.4th 978, 1053-1054; People v. Thomas (1992) 2 Cal.4th 489, 514.) If the factual circumstances reasonably justify the jury's findings, reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding. (People v. Kraft, supra, 23 Cal.4th at pp. 1053-1054.) Further, although the issue of the lawfulness of an arrest is generally a question for the court on a pretrial motion, where, as here, the issue concerns an element of the offense, it becomes a question for the jury's determination. (See People v. White, supra, 101 Cal.App.3d at p. 167.)

Under these principles, we determine substantial evidence supports that Deputy Kluge was acting in the lawful performance of his duties.

B. The Lawfulness of the Arrest

Greenwood first contends her arrest was unlawful because there was insufficient evidence to show Deputy Kluge had probable cause to arrest her.

This argument is without merit. "Probable cause to arrest exists if facts known to the arresting officer would lead a person of ordinary care and prudence to entertain an honest and strong suspicion that an individual is guilty of a crime." (People v. Kraft, supra, 23 Cal.4th at p. 1037.) The objective facts supported a belief that Greenwood was guilty of battery on a police officer. Deputy Kluge, who was wearing his uniform and identified himself as a law enforcement officer, came to Phyllis's home to investigate her welfare. During this lawful investigation, Greenwood slammed her front door on Deputy Kluge's foot numerous times, and refused to stop the assault when the officer warned her that this was against the law. It was at this point that Deputy Kluge made the decision to arrest her for battery. Greenwood then continued to physically assault Deputy Kluge and resist the arrest, including by hitting the officer's hand, breaking his thumb. These facts support Deputy Kluge's decision to arrest Greenwood for battery on a peace officer.

In her appellate briefs, Greenwood focuses on whether there was probable cause to arrest her for being under the influence. We need not reach this argument because if there was at least one valid ground for the arrest, the arrest was lawful and Greenwood had no right to resist the arrest or commit a battery on the officer. (O'Toole v. Superior Court (2006) 140 Cal.App.4th 488, 511-512.)

Greenwood alternatively contends her arrest was unlawful because Deputy Kluge had no right to put his foot on the threshold of her front door. She argues that this conduct constituted a warrantless entry into her home, violating the Fourth Amendment prohibition against unreasonable searches.

A police officer's entry into a home without a warrant is presumptively unreasonable. (Brigham City, Utah v. Stuart (2006) ___ U.S. ___ [126 S.Ct. 1943, 1947]; Illinois v. McArthur (2001) 531 U.S. 326, 330; People v. Thompson (2006) 38 Cal.4th 811, 817.) However, exigent circumstances may render a warrantless search or seizure reasonable. (Brigham City, supra, 126 S.Ct. at p. 1947; Illinois v. McArthur, supra, 531 U.S. at pp. 330-331.) " '[W]arrants are generally required to search a person's home or his person unless "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.' [Citation.]" (Brigham City, supra, 126 S.Ct. at p. 1947.) In determining whether these circumstances exist and evaluating the reasonableness of the entry, a court applies an objective test and "balance[s] the privacy-related and law enforcement-related concerns." (Illinois v. McArthur, supra, 531 U.S. at p. 331.) "[W]e balance the extent of the intrusion against the government interests justifying it, looking . . . to the individualized and objective facts that made those interests applicable in the circumstances of the particular [case]." (People v. Glaser (1995) 11 Cal.4th 354, 365.)

In this case, the intrusion was very limited in scope. Although Greenwood made clear that her mother's home was private and she did not want the officer in the home, Deputy Kluge did not infringe upon these expectations and instead merely placed his foot on the door threshold to prevent the door from being closed completely. The deputy did not go into the house, or attempt to do so. The officer further did not draw a gun or make any attempt to view inside the trailer or conduct a search. Under these circumstances, the privacy concerns implicated by the officer's conduct were minimal. (See People v. Wilson (1997) 59 Cal.App.4th 1053, 1059 [in finding officer's conduct reasonable, court emphasized the limited nature of the intrusion when a police officer "only took a single step" into the premises]; see also Illinois v. McArthur, supra, 531 U.S. at p. 331 [relevant factors in evaluating reasonableness of warrantless search include facts that officer avoided "significant intrusion into the home" and that search was "limited in time and scope"].)

Balanced against this limited intrusion, the officer had a legitimate basis to seek to prevent Greenwood from closing and then locking the door. Deputy Kluge went to the home to check on an elderly woman, who had a medical condition requiring her to use an oxygen device. The woman had not been seen in a substantial period which was unusual, despite that her car was in the driveway. Deputy Kluge was also aware that a plumber came to the home earlier in the day to perform routine maintenance, and that Greenwood communicated with the plumber in an aggressive fashion and appeared to be "spun out on something." When Greenwood first responded to Deputy Kluge's knock, she came out of the home but appeared to be hiding something as she opened the door just wide enough to squeeze through. In speaking with the officer, Greenwood was hyperactive and "twitchy" and acted highly paranoid.

Based on his observations, Deputy Kluge became concerned that Greenwood's elderly mother was inside needing medical attention or was being held against her will. These concerns were compounded by the officer's belief that Greenwood was under the influence of a controlled substance, increasing the likelihood the officer would need to respond to combative, irrational or paranoid conduct by Greenwood once she was in the house. In an effort to stabilize the situation, the officer put his foot at the door threshold to prevent the door from being locked. If Greenwood were to close and lock the door, the officer was concerned there would be no practical way to ensure the safety of anyone inside the house, particularly if Greenwood became unresponsive or violent.

Under the circumstances, Deputy Kluge's conduct in stepping on the door threshold met the Fourth Amendment objective standard of reasonableness. It was objectively reasonable for the officer to believe this limited intrusion was necessary given his obligation to confirm the welfare of an elderly woman who lived at the residence and about whom the neighbors were concerned. The officer took no further steps than necessary to ensure the safety of persons in the home. It was not until Greenwood began banging the door on the officer's foot that it became necessary for Deputy Kluge to arrest Greenwood, and when she resisted, to pull her from the home.

In challenging the officer's conduct, Greenwood focuses extensively on People v. Thompson, supra, 38 Cal.4th 811. In Thompson, the California Supreme Court held the police officers were justified in entering a home without a warrant to arrest an individual for driving under the influence. (Id. at pp. 820-828.) In so concluding, the court confirmed that imminent destruction of evidence is an exigent circumstance justifying a warrantless entry into a residence and rejected the argument that a driving-under-the influence crime in California is a minor offense that cannot justify such entry. (Ibid.)

Greenwood argues that because her misdemeanor under-the-influence offense was a "victimless crime" and "less grave than [a] DUI," the crime did not provide a basis for the officer's conduct. The flaw in this argument is that Deputy Kluge did not place his foot on the door threshold to preserve evidence of her drug use. Instead, the officer was seeking to ensure the safety of the elderly homeowner who could possibly be in danger inside the house. Thus, Thompson's analysis regarding the specific circumstances under which a warrantless entry to preserve evidence can be made is not applicable here. In any event, the Thompson court confirmed that the fundamental issue for the court's consideration in evaluating a warrantless entry is "reasonableness measured as ' "a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." ' " (Thompson, supra, 38 Cal.4th at p. 827.) In concluding that the intrusion in the case was minimal, the high court emphasized that the officer initially "entered only a few feet beyond the threshold," and did not conduct a search of the residence. (Id. at p. 828.) In this case, the officer's intrusion was less intrusive than in Thompson because he never even physically entered the home. Moreover, the justification in this case was just as strong and immediate: to ensure the safety of a potential victim in the home.

Finally, we reject Greenwood's argument that Deputy Kluge created the exigency by putting his foot in the door. The exigency was the need to ensure the safety of an elderly woman who had not been seen, but whose car was parked outside the house. That exigency was not created by the officer. The fact that Greenwood made the decision to commit a battery by banging the door on the officer's foot and then breaking his thumb with her hand was Greenwood's responsibility, and not attributable to the officer's conduct. In the cases relied upon by Greenwood, the officers initially engaged in conduct that was unreasonable and then attempted to establish the reasonableness of the conduct by the defendant's reaction to the improper conduct. (See, e.g., People v. Bellizzi (1995) 34 Cal.App.4th 1849, 1852; People v. Rodriguez (1981) 123 Cal.App.3d 269.) This was not the situation in this case.

B. The Reasonableness of the Force

Greenwood additionally contends Deputy Kluge was not acting in the lawful performance of his duties because the evidence showed he used excessive force.

In his closing argument, defense counsel argued that Deputy Kluge used unreasonable force in striking Greenwood's face with his open hand and therefore that she had a right to defend herself by hitting his thumb. The court instructed the jury that a peace officer may not use unreasonable or excessive force in making or attempting to make an arrest. By finding Greenwood guilty of the battery and resisting arrest counts, the jury necessarily rejected the claim that Deputy Kluge used excessive force.

Substantial evidence supports this factual finding. Deputy Kluge testified that when Greenwood became physically hostile and combative by slamming the door on his foot and refusing to stop, he had several options, including a "hand strike," pepper spray, or baton hit. He decided not to use the pepper spray option because the pain is substantial and can last a substantial time. He did not believe the spray was necessary because he was merely attempting to get Greenwood out of the house so he could arrest her. He also testified that he did not hit Greenwood very hard and was merely attempting to get her attention. On these facts, the jury had a sufficient basis to conclude the force used was reasonable.

We also reject Greenwood's argument that Deputy Kluge's act of placing his foot at the door threshold constituted excessive force. There was no evidence of any force used in this movement. In any event, as we have discussed, this conduct was appropriate under the circumstances.

II. Ineffective Assistance of Counsel

Because we reject Greenwood's contentions on their merits, we need not reach Greenwood's argument that her counsel was ineffective for failing to challenge the lawfulness of the arrest during closing arguments. In her appellate briefs, Greenwood makes clear that she is asserting this argument only if we find her substantive arguments are waived.

DISPOSITION

Judgment affirmed.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

BENKE, J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line attorney.