In re D.M.

Filed 10/18/07 In re D.M. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

After a series of delinquency petitions filed against defendant were sustained, he was charged in a separate delinquency proceeding (Welf. & Inst. Code,  602) with two misdemeanor counts of resisting or obstructing a peace officer (Pen. Code,  148, subd. (a)).[1] After a contested jurisdictional hearing the court found that appellant committed the offenses as charged in the petition. In this appeal he claims that the evidence fails to show the officers were lawfully engaged in the performance of their duties. We conclude that the officers commenced a detention of defendant without lawful grounds, and therefore reverse the judgment.

STATEMENT OF FACTS

Officer Stephen Benzinger of the San Francisco Police Department was on duty with fellow officers DeJesus and Alcaraz on the afternoon of September 15, 2006. All three officers were in an unmarked car, a gray Crown Victoria. They were not in police uniforms, but Officers Benzinger and Alcaraz wore star-shaped police badges attached to shoe laces hanging visibly on their chests.

Around 6:30 p.m., as Officer Benzinger was on patrol on the the 1100 block of Oakdale, he observed defendant and two other individuals, Daven Woolfolk and Charles Rollins, standing close together with their backs to him. Officer Benzinger noticed Woolfolk move his arms, and it appeared that he possibly passed something to defendant. Defendant then began to walk away from the others to the area in front of 1107 Oakdale.

From inside the patrol vehicle, Officer DeJesus told defendant to stop. Officers Benzinger and Alcaraz left the patrol vehicle and walked toward defendant. Defendant kept his right arm on the other side of his body so it remained out of sight of the officers. Officer Alcaraz yelled, Stop, police, whereupon defendant immediately began to run.

Officer Alcaraz chased defendant as Officer Benzinger ran around to the other side of a building to the left. Officer Benzinger realized that defendant had gone in another direction, so he ran to the intersection of Oakdale and Baldwin. He then saw defendant run toward the fence behind the doorway of a building at 1152 Oakdale with Officer Alcaraz in pursuit. Officer Benzinger ran to the rear of that block to see anyone who went over that fence. He also observed Officer Alcaraz in the front of the building, so he knew defendant had to be in there somewhere. Officer Benzinger also heard a radio report from Officer Alcaraz that defendant had a gun. He ordered other officers who had arrived on the scene to set up a perimeter around the area.

Another officer reported that he saw some legs in one of the backyards. Officer Benzinger then went there with other officers. The officers found and arrested defendant in a backyard. No gun was recovered.

DISCUSSION

Defendant argues that the trial court committed error when it sustained the two resisting arrest allegations without any evidence that the officers were lawfully exercising their duties when they approached and detained him. Specifically, defendant maintains that the officers did not have a reasonable suspicion that he was engaged in criminal behavior sufficient to support a lawful detention. Therefore, his argument proceeds, the prosecution failed to prove that the officers were lawfully performing their duties, an essential element of a violation of section 148.

 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, when no other punishment is prescribed . . . is guilty of a misdemeanor. ( 148, subd. (a).) (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.)   The legal elements of a violation of section [148, subd. (a)(1)] 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. [Citations.] [Citation.] The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence. [Citation.] [Citation.] (People v. Christopher (2006) 137 Cal.App.4th 418, 431, italics omitted.)

A violation of section 148 is committed by a defendants flight from a proper investigatory detention by a police officer [citations] . . . . (People v. Quiroga (1993) 16 Cal.App.4th 961, 967, italics added.) For a  148(a)(1) conviction to be valid, however, a criminal defendant must have resist[ed], delay[ed], or obstruct[ed] a police officer in the lawful exercise of his duties. (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 695.) Before a person can be convicted of a violation of section 148, there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense against him 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 officers conduct is unlawful. . . . [Citation.] [Citation.] (In re Joseph F. (2000) 85 Cal.App.4th 975, 982, italics added.) This means, where the offense is committed upon an officer effecting an arrest, the arrest must have been lawful. (People v. Wilkins (1993) 14 Cal.App.4th 761, 776.)

In this appeal challenging the sufficiency of the evidence to support a juvenile court judgment sustaining the criminal allegations of violations of section 148 in a Welfare and Institutions Code section 602 petition, we must apply the same standard of review applicable to any claim by a criminal defendant challenging the sufficiency of the evidence to support a judgment of conviction on appeal. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1371.) [T]he reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidenceevidence that is reasonable, credible and of solid valuesuch that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Kraft (2000) 23 Cal.4th 978, 1053; see also People v. Farnam (2002) 28 Cal.4th 107, 142143.) And on appeal, we must view the facts in the light most favorable to the judgment, drawing all reasonable inferences in its support. (People v. Cochran (2002) 103 Cal.App.4th 8, 13; see also People v. Bento (1998) 65 Cal.App.4th 179, 193; People v. Hayes (1992) 3 Cal.App.4th 1238, 12491250.) The question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the underlying enhancement beyond a reasonable doubt. (People v. Alvarez (1996) 14 Cal.4th 155, 225; see also People v. Hernandez (2003) 30 Cal.4th 835, 861.)

To resolve the propriety of the police conduct in the present case, we must determine when appellant was detained, cognizant of the established premise that not every encounter between law enforcement officers and an individual constitutes a seizure within the meaning of the Fourth Amendment. (INS v. Delgado (1984) 466 U.S. 210, 215; People v. Ross (1990) 217 Cal.App.3d 879, 884; People v. Sanchez (1987) 195 Cal.App.3d 42, 47.) Police contacts with individuals may be placed into three broad categories ranging from the least to the most intrusive: consensual encounters that result in no restraint of liberty whatsoever; detentions, which are seizures of an individual that are strictly limited in duration, scope, and purpose; and formal arrests or comparable restraints on an individuals liberty. [Citations.] Our present inquiry concerns the distinction between consensual encounters and detentions. Consensual encounters do not trigger Fourth Amendment scrutiny. [Citation.] Unlike detentions, they require no articulable suspicion that the person has committed or is about to commit a crime. (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

A detention occurs whenever a police officer accosts an individual and restrains his freedom to walk away, [citation] or when an officer stops an individual because he suspects that person may be personally involved in some criminal activity. [Citation.] (People v. Aldridge (1984) 35 Cal.3d 473, 477478.) Any police restraint of the liberty of an individual either by physical force or by an assertion of authority to which the individual submits, in circumstances in which a reasonable person would have believed he or she was not free to leave, will constitute a seizure of the individual within the meaning of the Fourth Amendment. (California v. Hodari D. (1991) 499 U.S. 621, 625628; People v. Turner (1994) 8 Cal.4th 137, 180; People v. Cartwright (1999) 72 Cal.App.4th 1362, 1367; People v. Soun (1995) 34 Cal.App.4th 1499, 1515.) The test is an objective one, which focuses upon whether the officers conduct conveys to a reasonable person in the defendants position that he or she is not free to depart. (Michigan v. Chesternut (1988) 486 U.S. 567, 573; People v. Castaneda (1995) 35 Cal.App.4th 1222, 1227; People v. Arangure (1991) 230 Cal.App.3d 1302, 1306.)

 [I]n order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers requests or otherwise terminate the encounter. [Citations.] (People v. Bouser (1994) 26 Cal.App.4th 1280, 1283.) We must make a realistic assessment of appellants encounter with the police based upon the totality of the specific facts presented to us. (Id. at p. 1287; People v. Grant (1990) 217 Cal.App.3d 1451, 1458; People v. Spicer (1984) 157 Cal.App.3d 213, 217.) What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs. (People v. Ross, supra, 217 Cal.App.3d 879, 884.)

No detention occurred when the officers pulled their patrol vehicle over and began to approach defendant and his companions. (People v. Turner, supra, 8 Cal.4th 137, 180.) The established rule is  that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individuals liberty, does a seizure occur. [Citations.] [Citation.] The reasonable person test is objective and presupposes an innocent person. (People v. Colt (2004) 118 Cal.App.4th 1404, 1411, italics omitted.) [T]here must also be an actual taking into custody, whether by the application of physical force or by submission to the assertion of authority. (People v. Brendlin (2006) 38 Cal.4th 1107, 1115.) An officer has every right to talk to anyone he encounters while regularly performing his duties . . . . Until the officer asserts some restraint on the contacts freedom to move, no detention occurs. (People v. Castaneda, supra, 35 Cal.App.4th 1222, 1227; see also People v. Dickey (1994) 21 Cal.App.4th 952, 954955.) As the United States Supreme Court explained in Florida v. Royer (1983) 460 U.S. 491, [497]: [L]aw enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions. . . . [Citation.] (People v. Hughes (2002) 27 Cal.4th 287, 328; see also People v. Souza (1994) 9 Cal.4th 224, 234; People v. Daugherty (1996) 50 Cal.App.4th 275, 283.)

The contact escalated beyond a consensual encounter, however, when the officers gave the order, Stop, police. (See People v. Daugherty, supra, 50 Cal.App.4th 275, 284; People v. Jones (1991) 228 Cal.App.3d 519, 523; People v. Verin (1990) 220 Cal.App.3d 551, 557.) The command was unequivocal and would have communicated to any reasonable person that he was not free to leave. (See People v. Castellon (1999) 76 Cal.App.4th 1369, 1374; People v. Foranyic (1998) 64 Cal.App.4th 186, 188; People v. Gonzalez (1992) 7 Cal.App.4th 381, 384.)

The attempt to detain defendant required adequate grounds to be lawful.  The law is well-established that in order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some [criminal] activity . . . is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. [Citation.] (In re Justin B. (1999) 69 Cal.App.4th 879, 886.)  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. . . .  (People v. Huggins (2006) 38 Cal.4th 175, 241, citing Illinois v. Wardlow (2000) 528 U.S. 119, 123124.)

Here, the entirety of the suspicious behavior articulated by the officer was that defendant had possibly passed something, began to walk away from the rest of the group as the officers approached, and appeared to hold one arm hidden from view against his body. The officers had no report of a crime, did not see any criminal activity take place, and did not recognize defendant or any of his companions. The stated reason the officers were in the location was merely that they were on patrol. The time was not late, not even late enough to be dark, and the officer did not testify that defendant and his companions were in a high crime area. (Cf., Illinois v. Wardlow, supra, 528 U.S. 119, 123124 (Wardlow); People v. Huggins, supra, 38 Cal.4th 175, 242.)

Defendant also did not flee before the order to stop was given. He was, according to the officers testimony, merely walking away from the group when the detention commenced, which was not an acutely suspicious circumstance. We recognize that nervous, evasive behavior, particularly unprovoked headlong flight has been identified by the United States Supreme Court as a pertinent factor in determining reasonable suspicion along with the entire context of behavior. (Wardlow, supra, 528 U.S. 119, 124.)[2] The California Supreme Court has also declared that flight from police is a proper considerationand indeed can be a key factorin determining whether in a particular case the police have sufficient cause to detain. (People v. Souza, supra, 9 Cal.4th 224, 235.)

But the court in Wardlow also pointed out that consistent with the decision in Florida v. Royer, 460 U.S. 491 (1983), when an officer, without reasonable suspicion or probable cause, approaches an individual, the individual has a right to ignore the police and go about his business. [Citation.] And any refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure.  (Wardlow, supra, 528 U.S. 119, 125.) [A] person approached by police for questioning need not answer any question put to him; indeed, he may decline to listen to the questions at all and may go on his way. [Citations.] He may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. [Citation.] (People v. Souza, supra, 9 Cal.4th 224, 234, italics omitted.)

Here, defendant ignored the approach of the police officers and proceeded on his way, but only fled after the detention had already been initiated by a direct order to stop. His refusal to cooperate did not furnish the minimal level of objective justification needed for a detention. (Wardlow, supra, 528 U.S. 119, 123.) And in any event, flight alone is not indicative of criminal activity. (People v. Souza, supra, 9 Cal.4th 224, 235236.) [F]ashioning a bright-line rule applicable to all investigatory stops would violate the high courts directive that police officers on the street, and the courts that evaluate the officers conduct, consider the totality of the circumstancesthe whole picture to determine whether a particular intrusion by police was justified. Any temporary detention includes factors that, considered together, may suggest either criminal or innocent behavior to trained police officers. No single factfor instance, flight from approaching policecan be indicative in all detention cases of involvement in criminal conduct. Time, locality, lighting conditions, and an areas reputation for criminal activity all give meaning to a particular act of flight, and may or may not suggest to a trained officer that the fleeing person is involved in criminal activity. (Id. at p. 239.)

The case before us is distinguishable from Wardlow. The officers had no reason to suspect that criminal activity had occurred when they arrived. We do not know from the record that defendant was present in an area of frequent criminal activity, there was no evidence he was holding an object that may have contained contraband or a weapon, and he did not immediately run at the approach of the police. Also, nothing before us indicates that defendants companions fled from the officers. The officers may have entertained a hunch something was amiss with defendant, which we do not criticize, but we find that the officers observations fell short of the requisite objective manifestation based on specific articulable facts that defendant had committed or was about to commit a crime. (People v. Perrusquia (2007) 150 Cal.App.4th 228, 234.) Where an investigative stop or detention is predicated on circumstances which, when viewed objectively, support a mere curiosity, rumor, or hunch, the stop is unlawful even though the officer may have been acting in good faith. (People v. Ramirez (1996) 41 Cal.App.4th 1608, 1613.)

We agree with the Attorney General that defendants conduct after the command to stop was issued prevented a completed detention from occurring. Under California v. Hodari D., supra, 499 U.S. 621, 626, submission to governmental authority is required for a seizure to take place. To have a completed seizure, the suspect must also have submitted to the policemans authority. (U.S. v. Wilson (4th Cir. 1991) 953 F.2d 116, 122; see also People v. Green (1994) 25 Cal.App.4th 1107, 11101111.) A person is seized for Fourth Amendment purposes when the officers words would convey to a reasonable person that he or she is being ordered to stop, and the person complies with that order. (People v. Castellon, supra, 76 Cal.App.4th 1369, 1374, italics added.) [A] seizure requires either physical force . . . or, where that is absent, submission to the assertion of authority. [Citation.] None was present here. (People v. Turner, supra, 8 Cal.4th 137, 180.) It is settled that a Fourth Amendment seizure occurs only when an officer intentionally applies hands-on, physical restraint to a suspect [citations] or initiates a show of authority to which a reasonable innocent person would feel compelled to submit [citation], and to which the suspect actually does submit [citation] for reasons that are solely related to the official show of authority. (People v. Cartwright, supra, 72 Cal.App.4th 1362, 1367, italics added.)

Once defendant fled, no seizure occurred at this point. (People v. Turner, supra, 8 Cal.4th 137, 180181.) That defendant failed to comply and instead chose to flee delayed the realization of the detention until he was subsequently apprehended. (People v. Foranyic, supra, 64 Cal.App.4th 186, 188190; People v. Castaneda, supra, 35 Cal.App.4th 1222, 1227.)

Nevertheless, defendants failure to submit to the detention did not render the officers conduct lawful. The detention may not have been effectuated due to defendants resistance, but it was attempted, and without proper grounds. Thus, at the time defendant fled he did not violate the statute because he did not resist the officers performance of lawful duties. (In re Manuel G., supra, 16 Cal.4th 805, 817.) For purposes of finding a violation of section 148 here, the critical moment and act was the commencement of the detention by the officers, not defendants response to it. Even if a citizen is not privileged to resist a police misjudgment, a defendant cannot be convicted of an offense against a peace officer engaged in . . . the performance of . . . duties unless the officer was acting lawfully at the time. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1220, & 1217, original italics omitted, italics added; see also Nuo v. County of San Bernardino (C.D.Cal. 1999) 58 F.Supp.2d 1127, 1133; In re Manuel G., supra, at p. 818; People v. Wilkins, supra, 14 Cal.App.4th 761, 776.) Under section 148, a necessary element of a criminal prosecution for obstruction of a peace officer is that the obstruction must have occurred while the officer was engaged in the lawful performance of his or her duties. (Nuo v. County of San Bernardino, supra, at p. 1133.) By its terms, the engaged-in-duty element focuses on the officers performance of duties, rather than the defendants resistance. (People v. Gonzalez, supra, at p. 1220.) [I]t is no crime in this state to nonviolently resist the unlawful action of police officers. (In re Michael V. (1974) 10 Cal.3d 676, 681.) We thus conclude that the attempted detention of defendant was not lawful, and the findings that he resisted the officers cannot stand. (People v. Hernandez (2006) 146 Cal.App.4th 773, 778.)

DISPOSITION

Accordingly, the judgment of the juvenile court that sustained the findings that defendant committed two counts of resisting or obstructing a peace officer in violation of Penal Code section 148, subdivision (a) is reversed for lack of supporting evidence.

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[1] All further statutory references are to the Penal Code, unless otherwise indicated.

[2] In Wardlow, a four-police-car caravan converged in an area known for heavy narcotics trafficking. An officer in the fourth car observed the defendant standing next to a building holding an opaque bag. The defendant looked in the officers direction, then ran through a gangway and alley. The officer, in his car, eventually cornered the defendant on the street, exited his car, detained the defendant, and found a handgun and ammunition during a patdown. (Wardlow, supra, 528 U.S. 119, 121122.) The court in Wardlow concluded that, although flight is not necessarily indicative of ongoing criminal activity, the officer was justified in suspecting defendants involvement in criminal activity based on the entire context of his unprovoked headlong flight. (Id. at pp. 125, 124.)