P. v. Wilson
Filed 12/7/07 P. v. Wilson CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, Plaintiff and Respondent, v. LILNIFTY GENERAL WILSON, Defendant and Appellant. | H031204 (Santa Clara County Super. Ct. No. CC624986) |
On December 19, 2006, a jury convicted defendant Lilnifty General Wilson of possession of a firearm by a felon (Pen. Code, 12021, subd. (a)(1); count 1),[1]possession of a firearm by a misdemeanant ( 12021, subd. (c)(1); count 2), possession of ammunition by a felon ( 12316, subd. (b); count 3), carrying a loaded weapon as a convicted felon ( 12031, subd. (a)(1); count 5), and misdemeanor resisting arrest ( 148, subd. (a)(1); count 7). The prosecution dismissed two additional counts (counts 4 and 6). Defendant admitted the truth of a prior prison term allegation ( 667.5, subd. (b)). On February 14, 2007, the trial court sentenced defendant to three years in state prison, consisting of the two-year midterm for count 1, plus one year for the prior prison term enhancement. Defendant received concurrent two-year midterms for counts 2, 3, and 5. On appeal, defendant contends the trial court erred in denying his motion to suppress and that the concurrent sentences for counts 2 and 5 should have been stayed pursuant to section 654. We agree that the sentences for counts 2 and 5 should have been stayed, but find no error in the denial of defendants motion to suppress. We therefore affirm a modified judgment.
I. Background
At approximately 1:30 a.m. on March 24, 2006, Officer Roy Gutierrez of the Santa Clara Police Department observed defendant staggering down the sidewalk. He questioned defendant from his patrol car. Defendant responded, but moaned and grunted during the conversation and Gutierrez decided to investigate further. Gutierrez called for backup and pulled over the patrol car. Gutierrez asked defendant to stop and to show his hands, but defendant did not cooperate. When backup officers arrived, defendant took off running.
The officers followed defendant, who, at one point, tripped and fell to the ground. When defendant stood up, Gutierrez saw that he was holding a rifle. Defendant continued to flee with the rifle, but left behind other belongings. The officers repeatedly ordered defendant to stop and to drop the rifle, but he did not comply.
Defendant entered the backyard of a house on Glade Avenue and climbed the fence. He disappeared from the officers sight, still holding the rifle and a black bag. The officers searched the neighborhood door-to-door. At 2536 Glade Avenue, the resident reported that he had heard someone jump the fence to his backyard. A canine police unit entered the backyard and found two black bags on the ground. One bag contained 11 rounds of ammunition that matched the cartridges later found in defendants rifle (one officer testified the rounds would penetrate the officers body armor), and the other bag contained a box of .22-caliber long rifle ammunition.
Defendant was lying face down on the roof of the house with the rifle near his feet. Despite repeated orders from the officers, defendant refused to come down from the roof or to show his hands. The sergeant in charge shot defendant four times with non‑lethal rubber bullets, but he continued to ignore the officers commands. Finally, Gutierrez and other officers climbed onto the roof to arrest defendant. He still refused to show his hands, and struggled and kicked as he was pulled from the ledge and placed in handcuffs. The fire department then removed defendant from the roof on a stretcher.
Defendant was transported to the hospital for treatment of the bruises and scrapes he had received. After waiving his Miranda[2]rights, defendant told the police he was carrying a rifle. Defendants rifle was loaded and operable. Defendants blood tested positive for methamphetamine. The parties stipulated that defendant was a misdemeanant.
Defendant testified that he ran away from Gutierrez and the other officers because he did not want to be stopped holding the rifle. He admitted that he ignored orders to drop the rifle and that he heard officers ordering him to move to the edge of the roof. Defendant said that he was attempting to comply when he was shot with the rubber bullets. He denied resisting arrest and disputed the accuracy of the blood test showing he had ingested methamphetamine. Defendant also admitted that he was in possession of the rifle and ammunition, and admitted five prior felony theft convictions. Defendant acknowledged that he was suing the police for unlawful detention and forcible arrest.
II. Discussion
A. Motion to Suppress
The Fourth Amendment, made applicable to the states through the Fourteenth Amendments due process clause, guarantees the right to be secure from unreasonable search and seizure. (Mapp v. Ohio (1961) 367 U.S. 643, 643-660; People v. Carter (2005) 36 Cal.4th 1114, 1140.) Evidence obtained through police conduct that violates the Fourth Amendment is subject to the exclusionary rule and must be suppressed. (People v. Mayfield (1997) 14 Cal.4th 668, 760.)
Defendant claims that he was unlawfully detained when Gutierrez exited the patrol car and ordered him to stop and to show his hands, and that there was no reasonable suspicion to justify the detention. He further claims that no independent, intervening acts removed the taint of the illegal detention and that the rifle and ammunition must be suppressed as fruit of the poisonous tree. We disagree.
i. Standard of Review
The standard of appellate review of a trial courts ruling on a motion to suppress is well established. We defer to the trial courts factual findings, express or implied, where supported by substantial evidence. In determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.] (People v. Weaver (2001) 26 Cal.4th 876, 924, quoting People v. Glaser (1995) 11 Cal.4th 354, 362.)
ii. Section 1538.5 Hearing
Prior to trial, Gutierrez testified at a section 1538.5 hearing on the motion to suppress. He testified that he was on patrol at approximately 1:30 a.m. when he first observed defendant walking southbound on the sidewalk. Defendant appeared to be staggering and was shining a flashlight on something in his right hand. Based on the staggering, Gutierrez thought that defendant might be under the influence of an intoxicant. In response to Gutierrezs inquiries from his patrol car, defendant said he was fine and that was pissed off about something that had happened at his sisters house. Gutierrez then asked defendant if he had been drinking and he just started to like moan and mumble something[.]
Gutierrez decided to make contact; he pulled over and requested backup. Defendant changed direction as Gutierrez exited the vehicle, walking northbound. Gutierrez told defendant he was a Santa Clara police officer and that he just wanted to make sure defendant was okay. Unable to see one of defendants hands, Gutierrez asked defendant to show his hands. At one point, defendant paced back and forth with his back to Gutierrez, about 10 feet from Gutierrez, and then continued to walk up the street. Gutierrez asked defendant to stop, believing defendant might have a warrant, and, based on the time of night, his dress, and the flashlight shining at an object in his hands, that defendant might be a burglar. Defendant did not show his hands and continued walking. He was crying and moaning and grunting and mumbling something. Gutierrez thought that defendant might be mentally ill due to his unusual behavior.
As other officers arrived on the scene, Gutierrez tried to flank[] defendant, and defendant started running. Defendant tripped and fell on the sidewalk, and dropped a rifle. He picked it up and continued to flee. Ignoring commands to stop and to drop the rifle, defendant jumped a fence and disappeared from view. Ultimately, defendant was arrested on a rooftop, still in possession of the rifle.
After hearing argument from both parties, the trial court denied defendants motion to suppress.[3]
iii. Fourth Amendment - Seizure
Not all encounters between police officers and individuals implicate the Fourth Amendments prohibition of unreasonable searches and seizures. (Florida v. Royer (1983) 460 U.S. 491, 497-498.) An officer does not implicate Fourth Amendment concerns by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, [or] by putting questions to him if the person is willing to listen . . . . (Id. at p. 497.)
A person is seized by the police and thus entitled to challenge the governments action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement, through meansintentionally applied, . . . A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned. (Brendlin v. California(2007) __ U.S. __ [127 S.Ct. 2400, 2405] (Brendlin), second italics added and internal citations omitted.) In other words, even if a person reasonably believes he or she is not free to leave, that person is not detained for Fourth Amendment purposes unless he or she either submits to the officers show of authority or is physically seized by the officer. (California v. Hodari D. (1991) 499 U.S. 621, 628-629 (Hodari D.) [finding that because the fleeing defendant did not comply with the officers show of authority enjoining the defendant to halt, he was not seized until he was tackled].)
Defendant claims that despite his flight, he was seized for purposes of the Fourth Amendment because he paced back and forth before running away from Gutierrez. We disagree. As one federal court recently held: [T]o comply with an order to stopand thus to become seizeda suspect must do more than halt temporarily; he must submit to police authority, for there is no seizure without actual submission[.] (United States v. Baldwin (2d Cir. 2007) 496 F.3d 215, 218 [following Hodari D. and Brendlin]; see also Brendlin, supra, __ U.S. __ [127 S.Ct. at p. 2409] [noting that what may amount to submission depends on what a person was doing before the show of authority: a fleeing man is not seized until he is physically overpowered, but one sitting in a chair may submit to authority by not getting up to run away].) In these circumstances, defendants brief lateral movement, a temporary pause in his flight from Gutierrez, does not amount to submission. Defendant did not show Gutierrez his hands as he was ordered, did not stop moving, and did not face Gutierrez. After pacing back and forth, 10 feet from the officer and with his back turned, defendant continued to flee. From that point on, he ignored all police commands to stop, to show his hands, and to drop the rifle. Defendants conduct, viewed in its entirety, can only be characterized as evasion of police authority, not submission to it.
Absent actual submission, there is no seizure and no claim under the Fourth Amendment. Accordingly, we need not determine whether the attempted detention was supported by reasonable suspicion.
B. Section 654
Defendant also claims that the concurrent sentences for counts 2 and 5 should have been stayed pursuant to section 654 because they were based on the same act charged in count 1. The People concede that this claim has merit, and we agree. Defendants convictions on counts 1, 2, and 5 are all based on possession of the same loaded firearm during the same course of conduct. Because the trial court sentenced defendant to a two-year term on count 1, the concurrent sentences on counts 2 and 5 should have been stayed under section 654.
III. Disposition
The judgment is modified as follows: the two-year terms for counts 2 and 5 are hereby stayed pursuant to Penal Code section 654. As modified, the judgment is affirmed.
_______________________________
Mihara, J.
WE CONCUR:
______________________________
Bamattre-Manoukian, Acting P.J.
______________________________
McAdams, J.
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[1] All further statutory references are to the Penal Code unless otherwise noted.
[2]Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
[3] Prior to hearing argument, the trial court observed that the key issue appeared to be whether defendants pacing back and forth with his back turned to the police officers constituted yielding to police authority[.] However, in ruling on the motion, the trial court made no explicit finding on this issue.
