P. v. Spicer
Filed 10/17/13 P. v. Spicer CA1/2
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opinion has not been certified for publication or ordered published for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.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST
APPELLATE DISTRICT
DIVISION
TWO
>
THE PEOPLE, Plaintiff and Respondent, v. LENNIE RAMON SPICER, Defendant and Appellant. | A136725 (San Francisco City & County Super. Ct. No. 218151) |
After
a jury trial, defendant Lennie Ramon Spicer was convicted of misdemeanor
officer (Pen. Code, § 148, subd. (a)(1)),
found not guilty on two felony counts of threatening an executive officer (§
69). Defendant appeals his conviction
and asserts that an element of section 148, subdivision (a)(1) is that the
delay or resistance was done while the officer was acting lawfully. Defendant maintains the officer was
unlawfully attempting to arrest him when defendant walked away because the
evidence, according to defendant, does not support probable cause to
arrest. (See § 836.) He thus claims that his due process rights
were violated because insufficient
evidence supports his conviction. We
conclude that the record supports a finding of probable cause to arrest and
affirm the judgment.
On
June 22, 2012, an
information was filed charging defendant with one felony count of making a
count of threatening an executive officer (§ 69), and one misdemeanor count of
resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)). The information further alleged a prior
conviction within the meaning of the Three Strikes Law (§§ 667, subds. (d)-(e),
1170.2, subds. (b)-(c)), and a five-year prior serious felony conviction
enhancement (§ 667, subd. (a)(1)).
Defendant
filed a motion to suppress evidence,
which the trial court denied on August
21, 2012. Defendant also
filed a motion to set aside the two felony counts charged in the
information. On August 22, 2012, the court granted defendant’s
motion to set aside the threatening an executive officer count (§ 69). Subsequently, on August 27, 2012, the court granted the
prosecutor’s motion to amend the information to add a second felony count of
making a criminal threat (§ 422).
The
jury trial began on August 28, 2012.
incident involving defendant occurred on April 21, 2012, when Taft was
patrolling the Tenderloin neighborhood in San Francisco on bicycle and in
uniform. Prior to this incident, Taft
estimated that he had been involved in a minimum of 50 narcotics investigations
during his four and one-half years on the police force. He noted that the Tenderloin was known for
low-level narcotics sales, such as crack cocaine. A different area, known as “Pill Hill†near
Golden Gate and Leavenworth, was known for transactions involving Vicodin,
OxyContin, and Hydrocodone.
Officer
Taft stated that he was riding his bicycle on the sidewalk at the southeast
corner of Turk and Taylor in the Tenderloin and, when he “rounded the corner,â€
he spotted defendant and another man.
The two men were about 10 feet in front of him on the sidewalk. He observed that defendant “had a small
orange prescription bottle in one of his hands.†The officer saw defendant remove from the bottle
“what appeared to be a small white pill†and hand it to the other man. Based on his training and experience, Taft
suspected that he “just witnessed a street-level narcotics transaction.†He did not see any money exchanged between
the two men. When questioned about how
he was to respond to witnessing a suspected narcotics transaction on the
street, Taft answered: “Well, we’re
supposed to arrest them.†When asked
whether he attempted to arrest defendant and the other man, Taft replied,
“Yes.â€
Taft
told both men to stop. The other man
showed the officer the pill defendant had given him. Taft commanded the two men to turn around and
face the parking lot’s retaining wall to permit him to handcuff both men from
behind. The other man followed Taft’s
directive, and placed his hands behind his back. Defendant, according to Taft, “lifted his
hand up, shook it down in a dismissive manner, and just started walking
away.†Taft told defendant to stop about
four or five times, but defendant continued to walk away from him. Taft advised the cooperative individual that
if he remained at this location while Taft chased after defendant, Taft would
return and obtain the necessary information from him and then release him
without arresting him. After the man
agreed, Taft ran after defendant, who was about 20 or 30 feet away.
As
Taft chased after defendant, he yelled about three or for times for defendant
to stop. He eventually caught up to
defendant. Taft instructed defendant to
put his hands behind his back and defendant complied; the officer handcuffed
defendant. Taft told defendant that he
was under arrest. Taft conducted a
search of defendant and he took the pill bottle from defendant’s right
hand. The bottle contained one pill. Another officer arrived in a patrol car and
transported defendant to the police station.
Defendant
testified and stated that on April 21, 2012, he was smoking a cigarette with a
stranger near the corner of Turk and Taylor.
Defendant removed the pill bottle from his pocket and was going to take
a pill to treat his arm pain when Officer Taft arrived on his bicycle. He maintained that the pill was
Tylenol-codeine and he had a prescription for it to treat his swollen arm. He claimed that he told the officer: “This is a Tylenol-codeine pill I took and I
have a prescription for it.†He denied
handing a pill to the person standing next to him.
Defendant
stated that the officer approached the other man and began to talk to him. After approximately 30 to 45 seconds,
defendant walked away because he believed Taft was interested in talking only
to the other man. Subsequently, he heard
someone yelling for him to stop and he stopped and waited for Taft to catch up
to him.
After
hearing two days of testimony, the jury returned its verdicts on August 31,
2012. The jury convicted defendant of
the misdemeanor count of delaying a peace officer (§ 148, subd. (a)(1)), and
found him not guilty of the two felony criminal threat counts.
On
September 4, 2012, the trial court suspended imposition of sentence and placed
defendant on three years of unsupervised probation. As a condition of probation, the court
ordered defendant to serve 138 days in county jail with 138 days of credit for
time served.
Defendant
filed a timely notice of appeal.
The
jury convicted defendant of violating section 148, subdivision (a)(1). This statute provides: “Every person who willfully resists, delays,
or obstructs any . . . peace officer . . . in the discharge or
attempt to discharge any duty of his or her office or employment . . . shall be
punished . . . .†(§ 148, subd.
(a)(1).) Where, as here, the “statute
makes it a crime to commit any act against a peace officer engaged in the
performance of his or her duties, part of the corpus delicti of the offense is
that the officer was acting lawfully at the time the offense was
committed. [Citations.] Disputed facts relating to the question
whether the officer was acting lawfully are for the jury to determine when such
an offense is charged. [Citation.]†(People
v. Jenkins (2000) 22 Cal.4th 900, 1020.)
Defendant
acknowledges that the evidence supports a finding that he delayed the officer
and that he knew Taft was a police officer.
He also concedes that a detention would have been lawful because the
record supports a finding that Officer Taft had reasonable suspicion to detain
him. He maintains, however, that when
the officer first told him to stop, it was an arrest, not a detention, because
the officer testified that he was attempting to arrest defendant. He claims that the evidence in the record
does not support a finding that the officer had probable cause to arrest
him. Since a legal element of violating
section 148, subdivision (a)(1) is that the officer was acting lawfully, defendant
claims that he could not be convicted of this crime.
The
People respond that the evidence supports a finding that Officer Taft had
probable cause to arrest defendant.
Furthermore, the People dispute defendant’s assertion that Taft’s
subjective belief that he was going to arrest defendant transformed a detention
into an arrest when Taft’s subjective belief was never communicated to
defendant prior to defendant’s disobeying the command to stop. The People argue that Taft was detaining
defendant when he commanded him to stop and defendant has conceded that a
detention was legal.
As
explained below, substantial evidence in the record supports a finding that
Taft had probable cause to arrest defendant.
We therefore need not address defendant’s argument that an officer’s
subjective belief is relevant to determining whether a stop is a detention or
an arrest for purposes of determining whether the officer was acting lawfully
under state law.
title="">
In
evaluating the sufficiency of the evidence the standard of review
is deferential, and “ ‘ “the power of an appellate court begins and ends with
the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the
determination . . . .†’
[Citations.]†(
88.) “In reviewing a criminal conviction
challenged as lacking evidentiary support, the court must review the whole
record in the light most favorable to the judgment below to determine whether
it discloses substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—such that a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt.
An appellate court must accept logical inferences the jury might have
drawn from the evidence, even if the court would have concluded otherwise. [Citation.]â€
(People v. Brady (2010) 50
Cal.4th 547, 561.)
Section
836, subdivision (a)(1) provides that an officer may arrest an individual
without a warrant when the officer “has probable cause to believe that the
person to be arrested has committed a public offense in the officer’s
presence.†Probable cause has been
generally defined as a state of facts that “would lead a man of ordinary care
and prudence to believe and conscientiously entertain an honest and strong
suspicion that the person is guilty of a crime.†(People
v. Ingle (1960) 53 Cal.2d 407, 412.) “No
exact formula tells us how to decide whether there was probable cause to
arrest. Instead, we look to the totality
of the surrounding circumstances and decide each case on its own facts, taking
into account such things as (1) the officer’s experience (which may render
suspicious that which appears innocent to a layman); (2) the officer’s prior
contacts with the suspect; (3) the officer’s awareness that the area is one
known for street drug transactions; (4) the defendant’s conduct (such as a
covert or secretive display, transfer or exchange); (5) a caching of an object
given or received in a peculiar receptacle designed for a different,
specialized purpose; (6) some indication by the defendant of a consciousness of
guilt; and so on.†(People v. Guajardo (1994) 23 Cal.App.4th 1738, 1742 (
Here,
the totality of the circumstances support the jury’s finding that Officer Taft
had probable cause to arrest defendant for furnishing a prescription drug to
another (Health & Saf. Code, § 11352).
Taft had substantial experience with drug transactions; he testified
that he had been involved in at least 50 narcotic investigations. The area in the Tenderloin where the
transaction occurred was known for drug sales.
a drug transaction was occurring.
Defendant and the other man were 10 feet away from Taft; Taft saw a
small “orange prescription bottle†in defendant’s hand. Taft observed defendant remove a small white
pill from the bottle and give it to the other man. Defendant admitted to the officer that the
pill he had given to the other man was Tylenol-codeine.
The
present case is similar to the situation in Guajardo,
record supported a finding of probable cause to arrest. (Id. at
pp. 1742-1743.) In Guajardo, the officer spotted the defendant handing a small object
to his companion in an area known for a high rate of street drug transactions
and his companion placed the object in a cigarette case, which he placed in his
pocket. (Id. at p. 1743.)
Additionally, the officer had arrested defendant a month earlier for the
sale of narcotics. (Ibid.) In concluding that
there was sufficient evidence to support probable cause to arrest, the court
explained: “The question is not whether
these facts would be sufficient to support a conviction, and the fact that
there may be some room for doubt is immaterial.†(Ibid.)
Here,
Officer Taft had not arrested defendant previously for the sale of narcotics,
but otherwise the facts are similar to those in Guajardo, supra,
present case in the respect that the officer in Guajardo simply saw a small object, and did not see what the object
was, while Taft saw that the object was a small white pill removed from a
prescription pill bottle.
Defendant
stresses that Officer Taft did not observe any exchange of money (see
535 [probable cause to arrest when police observed an exchange of paper money
for a package of the size and type regularly used for the sale of marijuana in
a location known for sales and use of marijuana]), or any furtive movements by
defendant or the other person (see Guajardo,
He also stresses that the officer had no information indicating that
defendant or the other person had any history of drug use or trafficking (see
pill bottle or what the white pill was.
(See People v. Stanfill (1985)
170 Cal.App.3d 420, 423, 426 [probable cause to arrest when police observed the
defendant gave an apparent stranger money for two small, thin, white,
filterless cigarettes in an area known to have marijuana sales].) Defendant argues that an “exchange of an
unrecognizable object for money on a street in a high crime area does not justify
arrest . . . .†(People v. Limon (1993) 17 Cal.App.4th 524, 532, 534-537 [where
officer knew defendant’s location was a site for drug activity, and the officer
observed defendant make a hand-to-hand exchange and saw the defendant stash
something in his pocket, a detention, if not an arrest, was justified]; see
also Cunha v. Superior Court (1970) 2
Cal.3d 352, 357 [no probable cause where officers observed a hand-to-hand
exchange in a known narcotics trafficking area but did not see what the object
was and did not see money exchanged]; Remers
v. Superior Court (1970) 2 Cal.3d 659, 665-666 [no probable cause when
officer in an area known for narcotics sales saw a person remove a tinfoil
package from her purse but officer could not see what was in the tinfoil and no
money was exchanged]; People v. Jones (1991)
228 Cal.App.3d 519, 524 [no reasonable suspicions supporting a detention when
officer had seen nothing more than a transfer of money between the defendant
and another person].)
Here, although the officer did not see any exchange of
money, Officer Taft was 10 feet away and clearly saw defendant remove the white
pill from the prescription pill bottle and hand it to the other man; the white
pill was not some unidentifiable object.
Furthermore, defendant, according to his own testimony, announced that
the pill was “Tylenol-codeine.â€
Defendant attempts to discount his own testimony by asserting that it is
unclear from the record whether he made this statement before or after the
officer yelled, “Stop.â€
name="_ftnref6" title="">[6] He also stresses that Taft did not testify
that defendant made this statement to him.
We, however, are compelled to review the record in the light most
favorable to the judgment below. (See,
e.g., People v. Brady, supra, 50
Cal.4th at p. 561.) Thus,
the proper inference is that defendant told the officer as soon as he saw him
and before the officer said, “Stop,†that the pill was Tylenol-codeine.
Although
each individual fact may not show probable cause to arrest, the totality of the
facts supports the jury’s finding that the officer acted lawfully. The officer saw defendant give a white pill
to the other man and the moment defendant announced that the pill was codeine,
Taft had probable cause to arrest defendant.
At that point, a person of ordinary prudence could entertain an honest
and strong suspicion that defendant was unlawfully furnishing a prescription
drug to the other man.
Accordingly,
we conclude that the evidence supports a finding that defendant delayed the
officer while the officer was lawfully attempting to arrest him and the record
supports his conviction for violating section 148, subdivision (a)(1).
The
judgment is affirmed.
_________________________
Brick,
J.*
We concur:
_________________________
Haerle, Acting P.J.
_________________________
Richman, J.
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
further unspecified code section references are to the Penal Code.
those facts relevant to the conviction are set forth.
