Filed 10/5/18 P. v. Kay CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed.

Kent D. Young, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Rex Kay of resisting an officer. (Pen. Code, § 148, subd. (a)(1).)[1] The trial court sentenced him to two days in jail and fined him $655.

Kay appeals. He contends the evidence does not support his conviction because he was unlawfully detained at the time of the offense. He also requests that this court review the trial court's in camera assessment of peace officer personnel records for error. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) We conclude Kay was not unlawfully detained and the court did not err in its assessment of the personnel records. We therefore affirm the judgment.

FACTS

For purposes of this section, we state the evidence in the light most favorable to the judgment. (See People v. Osband (1996) 13 Cal.4th 622, 690; People v. Dawkins (2014) 230 Cal.App.4th 991, 994.) Additional facts will be discussed where relevant in the following section.

On July 4, 2016, Clayton Dujenski, a deputy sheriff with the San Diego County Sheriff's Department, was patrolling the parking lot of a shopping center in San Marcos, California. He was part of a special enforcement detail at the shopping center. It was a high crime area, including illegal drug activity. His duties included investigating thefts at the shopping center and contacting transient individuals who may be violating San Marcos's antiloitering ordinance or other laws.

That afternoon, Dujenski contacted a man who appeared to be loitering near a soda machine and asked him to leave. A loss prevention officer at Walmart, which is located in the shopping center, later told Dujenski that the man's girlfriend might have committed a theft inside Walmart and the man appeared to be her lookout. Dujenski located the man outside a McDonald's in the shopping center. Kay was sitting against the outside wall of the McDonald's, approximately five to ten feet away from the man. Dujenski did not see them interact, and he did not see the man's girlfriend.

Dujenski drove around the shopping center. Approximately five minutes later, he arrived back at the McDonald's. He saw the man and Kay in the same positions as before; neither had moved. Dujenski decided to contact them for possible loitering and to investigate the theft at Walmart. He parked his police car approximately 20 feet away and walked toward the man and Kay. He was in his full uniform. He did not activate his police car's emergency lights.

As Dujenski walked over, he saw the man's girlfriend walking toward McDonald's as well. Dujenski made eye contact with the man and his girlfriend. Kay, however, stood up and started to walk away. He walked erratically, zigzagging back and forth, with his arms flailing around over his head. He started yelling boisterously and incoherently about wanting his mother. Dujenski was concerned Kay might be under the influence of drugs.

Dujenski told Kay several times to come back over to the McDonald's, but he did not do so. Dujenski stepped in front of Kay and put his hand against his chest to stop him from continuing to walk away. Kay started to go back, but he kept stopping and walking at an angle. At that point, another sheriff's deputy, Gerardo Perez, arrived and grabbed one of Kay's arms. Perez told Kay to put his hands behind his back. Kay did not comply, and he started to turn toward Perez. Perez pushed Kay against the outside wall of the McDonald's, and Dujenski attempted to grab Kay's legs. Dujenski saw a folding knife attached to Kay's pants pocket. Dujenski grabbed it and threw it behind him. The sheriff's deputies repeatedly told Kay to stop resisting and put his hands behind him, but he continued to struggle. Perez used his knee to strike Kay's right side. Perez pulled out his gun and pointed it at Kay. Dujenski was then able to pull Kay's legs, so he was lying on the ground, and handcuff him. The entire encounter lasted approximately 45 seconds.

Perez called for backup, and the deputies placed Kay in a patrol car. He was arrested and taken to the sheriff's station. During booking, he complained of pain and was transported to a hospital. He had suffered several fractured ribs during the struggle. In a statement, Kay explained that he was waiting for his mother outside McDonald's while she went to a nearby gas station to get some cigarettes.

At trial, Dujenski testified that the purpose of his initial contact with Kay was to ask about loitering and possibly the Walmart theft. After he began to walk over, however, Dujenski thought Kay might be under the influence of drugs. In his testimony, Dujenski first said he believed Kay was free to leave up until he told Kay to stop and guided him back to the McDonald's. But later Dujenski testified he did not believe Kay could leave because he wanted to question him.

The defense called Kay's mother to testify. She said she dropped Kay off while they were going through the McDonald's drive-through so he could smoke. After buying food, she exited the drive-through and had to turn around to pick him up. When she came back, she saw Kay struggling with sheriff's deputies.

DISCUSSION

I
Sufficiency of the Evidence

Kay contends the evidence does not support his conviction for resisting an officer. "Our task is clear. 'On appeal we review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.' " (People v. Cravens (2012) 53 Cal.4th 500, 507.) "In applying this test, we review the evidence in the light most favorable to the prosecution and presume in support of the judgment the existence of every fact the jury could reasonably have deduced from the evidence. [Citation.] 'Conflicts and even testimony [that] is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]' [Citation.] A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio).)

"The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.) "The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ' "engaged in . . . the performance of . . . [his or her] duties" ' unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.] 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful. . . . [¶] . . . [T]he lawfulness of the victim's conduct forms part of the corpus delicti of the offense.' " (In re Manuel G. (1997) 16 Cal.4th 805, 815, italics omitted.) "Disputed facts relating to the question whether the officer was acting lawfully are for the jury to determine when such an offense is charged." (People v. Jenkins (2000) 22 Cal.4th 900, 1020.)

Kay argues that Dujenski was not acting lawfully when Kay resisted his commands because Dujenski had no reasonable suspicion of criminal activity that would support detaining Kay under Terry v. Ohio (1968) 392 U.S. 1 (Terry) and its progeny. "In Terry, [the Supreme Court] held that an officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot. [Citation.] While 'reasonable suspicion' is a less demanding standard than probable cause and requires a showing considerably less than preponderance of the evidence, the Fourth Amendment requires at least a minimal level of objective justification for making the stop. [Citation.] The officer must be able to articulate more than an 'inchoate and unparticularized suspicion or "hunch" ' of criminal activity." (Illinois v. Wardlow (2000) 528 U.S. 119, 123-124 (Wardlow).)

"An individual's presence in an area of expected criminal activity, standing alone, is not enough to support a reasonable, particularized suspicion that the person is committing a crime. [Citation.] But officers are not required to ignore the relevant characteristics of a location in determining whether the circumstances are sufficiently suspicious to warrant further investigation. Accordingly, [the Supreme Court] previously noted the fact that the stop occurred in a 'high crime area' among the relevant contextual considerations in a Terry analysis." (Wardlow, supra, 528 U.S. at p. 124.) The Supreme Court has also "recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.] Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." (Ibid.)

" 'The "reasonable suspicion" necessary to justify such a stop "is dependent upon both the content of information possessed by police and its degree of reliability[,]" [citation] . . . tak[ing] into account "the totality of the circumstances . . . ." ' " (People v. Brown (2015) 61 Cal.4th 968, 981 (Brown).) Even conduct that is ambiguous and susceptible of an innocent explanation may give rise to reasonable suspicion of criminal wrongdoing. (Wardlow, supra, 528 U.S. at p. 125.) " 'What is required is not the absence of innocent explanation, but the existence of "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." ' [Citation.] Although each of a series of acts may be ' "perhaps innocent in itself," ' taken together, they may ' "warrant[] further investigation." ' [Citation.] The purpose of the detention is to resolve the ambiguity by allowing the officer to briefly investigate further." (Brown, at pp. 985-986.)

"The reasonableness of a detention involves both questions of fact and policy. Under Terry, we must balance ' "the need to search [or seize] against the invasion which the search [or seizure] entails." ' [Citations.] Police officers are required to make 'swift, on-the-spot decisions' and the Fourth Amendment does not require us to ' "indulge in 'unrealistic second-guessing' " ' of the officer's conduct." (Brown, supra, 61 Cal.4th at p. 984.)

Here, the jury could reasonably find that Dujenski had reasonable suspicion to detain Kay, and therefore was acting lawfully, when he commanded Kay to return to the outside wall of the McDonald's, used his hand to force Kay in that direction, and thereafter restrained him. Viewed in the light most favorable to the judgment, the record reveals the following facts: Dujenski was patrolling a shopping center known for its criminal activity, including illegal drug offenses. He observed Kay sitting outside McDonald's without any apparent purpose. When Dujenski stopped his car and walked nonconfrontationally toward him, Kay immediately stood up and attempted to flee. And, he did not simply walk away; he zigzagged back and forth erratically, flailing his hands above his head and yelling incoherently. Based on the totality of these circumstances, the jury could find that Dujenski had reasonable suspicion that Kay was involved in criminal activity, e.g., that he was under the influence of illegal drugs, and that Dujenski could properly detain Kay to investigate that suspicion. Dujenski was therefore acting lawfully when Kay resisted him, and the evidence supports Kay's conviction on that basis.

In his briefing, Kay addresses only whether the jury could have found that Dujenski had reasonable suspicion that Kay was loitering in violation of a local antiloitering ordinance. (See San Marcos Mun. Code, § 10.32.030.) But, on substantial evidence review, we must affirm if the evidence supports Kay's conviction on any theory. (See Zamudio, supra, 43 Cal.4th at p. 357.) Dujenski testified that he was concerned Kay might be under the influence of drugs, and the evidence supports the lawfulness of Kay's detention under that theory.

In his reply brief, Kay points out that the prosecutor primarily relied on the theory of loitering in his closing arguments. The prosecutor mentioned the possibility that Kay was under the influence of drugs only in passing. We disagree that the prosecution's failure to clearly articulate this theory in closing arguments precludes this court from affirming Kay's conviction on that basis. It is incorrect for a reviewing court to simply "review[] the theories articulated in the prosecutor's argument" rather than "focus on the evidence presented and the possible inferences drawn therefrom." (People v. Perez (1992) 2 Cal.4th 1117, 1125-1126 (Perez).) "It is elementary . . . that the prosecutor's argument is not evidence and the theories suggested are not the exclusive theories that may be considered by the jury." (Id. at p. 1126; accord, People v. Clark (2011) 52 Cal.4th 856, 947 (Clark).) The evidence supports Kay's conviction; whether it supports the prosecution's stated theory in closing argument is not at issue.

Kay relies on Herring v. New York (1975) 422 U.S. 853, but it has no application here. In Herring, the Supreme Court considered the constitutionality of a New York statute that allowed a judge in a bench trial to dispense with closing arguments entirely. (Id. at p. 853.) The Supreme Court held that "a total denial of the opportunity for final argument in a nonjury criminal trial is a denial of the basic right of the accused to make his defense." (Id. at p. 859.) While trial courts have "great latitude" to control closing arguments, "there can be no justification for a statute that empowers a trial judge to deny absolutely the opportunity for any closing summation at all." (Id. at pp. 862-863.) Here, by contrast, Kay was not deprived of the opportunity for closing argument. His counsel was free to make whatever argument he wished based on the evidence. Indeed, while Kay's counsel also primarily focused on the theory of loitering, he referenced the possibility that Dujenski wanted to investigate Kay's possible use of illegal drugs and argued it was unfounded as well. To interpret Herring to prohibit affirmance here would directly contradict Perez and Clark, discussed above. Kay's interpretation is therefore unpersuasive. He has not shown the evidence does not support his conviction.

After briefing in this appeal was complete, Kay submitted a letter directing our attention to People v. Brown (2017) 11 Cal.App.5th 332. As authority for his letter, Kay cited the California Rules of Court, rule 8.254(a). That rule provides, "If a party learns of significant new authority, including new legislation, that was not available in time to be included in the last brief that the party filed or could have filed, the party may inform the Court of Appeal of this authority by letter." (Ibid.) Kay's last brief in this court was filed on August 6, 2018. The allegedly new authority Kay cites was published more than a year before, on May 1, 2017. It was therefore available to be included in Kay's briefing. Rule 8.254 does not authorize Kay's letter, and we may properly strike its filing.

In this instance, we will simply explain why Kay's additional citation does not aid him. Brown considered the situation where the evidence supported several distinct criminal acts, such that a unanimity instruction would normally be required. (People v. Brown, supra, 11 Cal.App.5th at p. 341.) Where the prosecution makes an election to proceed based on only one such criminal act during opening or closing argument, thus obviating the need for a unanimity instruction, the jury and any reviewing court are bound by the prosecution's election. (Ibid.) "Otherwise, we may only be finding sufficient evidence to support a nonunanimous verdict," i.e., a verdict in which some jurors relied on one distinct criminal act and others relied on a different distinct criminal act. (Id. at p. 342.) Here, while the jury was instructed that it must unanimously agree on the act of resistance that constituted the crime of resisting, no such unanimity instruction was given regarding the theory of reasonable suspicion. But Kay has not attempted to argue that a unanimity instruction regarding the theory of reasonable suspicion was required, and we have not found any authority that would support such an instruction. "A requirement of jury unanimity typically applies to acts that could have been charged as separate offenses." (People v. Maury (2003) 30 Cal.4th 342, 422.) "[W]here the evidence shows only a single discrete crime but leaves room for disagreement as to exactly how that crime was committed or what the defendant's precise role was, the jury need not unanimously agree on the basis or, as the cases often put it, the 'theory' whereby the defendant is guilty." (People v. Russo (2001) 25 Cal.4th 1124, 1132.)

II
Peace Officer Personnel Records

Prior to trial, Kay moved for discovery of information relevant to certain misconduct allegations and complaints in the personnel records of Dujenski and Perez. (See Pitchess, supra, 11 Cal.3d 531.) The trial court granted the motion and conducted an in camera hearing to determine whether any discoverable material existed. As to Perez, the court disclosed information to Kay's counsel under a protective order. As to Dujenski, the court stated that it did not find any relevant information to disclose.

Kay requests that we review the in camera proceedings to determine whether any information was incorrectly withheld from Dujenski's personnel records. The Attorney General does not oppose the request.

"When a trial court concludes a defendant's Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer's personnel files, the custodian of the records is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself." (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc).) "Documents clearly irrelevant to a defendant's Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court." (Id. at p. 1229.) "The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant's Pitchess motion. A court reporter should be present to document the custodian's statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record." (Ibid.)

"The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review. If the documents produced by the custodian are not voluminous, the court can photocopy them and place them in a confidential file. Alternatively, the court can prepare a list of the documents it considered, or simply state for the record what documents it examined. Without some record of the documents examined by the trial court, a party's ability to obtain appellate review of the trial court's decision, whether to disclose or not to disclose, would be nonexistent." (Mooc, supra, 26 Cal.4th at p. 1229.)

"A trial court's decision on the discoverability of material in police personnel files is reviewable under an abuse of discretion standard." (People v. Jackson (1996) 13 Cal.4th 1164, 1220.) "Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records." (People v. Samayoa (1997) 15 Cal.4th 795, 827.)

We have reviewed the sealed record of the trial court's in camera proceeding. Based on that review, we conclude the trial court conducted the proper inquiry into the discoverability of information in Dujenski's personnel records, made an adequate record for our review, and correctly found that there was no relevant information to disclose. We are satisfied the court did not abuse its discretion by finding no discoverable information. (See People v. Nguyen (2017) 12 Cal.App.5th 44, 48.)

DISPOSITION

The judgment is affirmed.

GUERRERO, J.

WE CONCUR:

IRION, Acting P. J.

DATO, J.