P. v. Robinson

Filed 5/15/06  P. v. Robinson CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b).  This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

            APPEAL from the Superior Court of San Bernardino County.  John B. Gibson, Judge.  Affirmed.

            Robert D. Pellinen, Attorney for Defendant and Appellant.

            Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Susan E. Miller, Elizabeth A. Hartwig, and Robert M. Foster, Deputy Attorneys General, for Plaintiff and Respondent.

            Following a second jury trial,^[1] defendant Laron Delshean Robinson was convicted of one count of resisting arrest with force and violence.  (Pen. Code, § 69.^[2])  He was sentenced to five years in state prison.  On appeal, he contends (1)  the trial court should have sua sponte instructed on misdemeanor resisting arrest and battery as lesser offenses of felony resisting arrest; (2)  the court erred in denying his motion to suppress evidence; (3)  the court erred in admitting evidence that he had been acquitted of the cocaine charges; and (4)  there was insufficient evidence of the resisting arrest with force and violence charge.

PRCEDURAL BACKGROUND AND FACTS

            On March 4, 2001, at approximately 10:45 p.m., California Highway Patrol Officers George Padilla and Brian Benson were driving north on Interstate 15 in the vicinity of Lake Delores in San Bernardino County.  The officer saw a red Ford Explorer weaving from one lane to the other and onto the shoulder.  Because of this weaving, the officers decided to stop the vehicle to find out if the driver was sleepy, impaired or intoxicated.  The vehicle was also traveling 10 to 15 miles per hour below the posted speed limit.  The officers activated their lights and the Explorer pulled to the right shoulder and stopped.  Defendant was the driver and sole occupant.

            The officers were driving a marked patrol car.  Officer Padilla told defendant that he had been stopped because he was weaving in his lane.  Defendant explained that he had been on his cell phone.  Defendant was nervous and giddy, and he was shaking badly.  Officer Padilla asked defendant for identification, and defendant provided registration and a check cashing card, but no driver's license.  Officer Padilla handed the check cashing card to Officer Benson to check on defendant's status as a licensed driver.

            Officer Padilla asked defendant whether he had had enough sleep or whether he had any alcohol.  The officer then administered field sobriety tests on defendant in order to determine whether he could drive safely.  During the tests, defendant kept putting his hands towards his front pants pockets as if he was going to put them inside.  Officer Padilla repeatedly told defendant not to put his hands in his pockets.  Concerned for his safety because he knew that palm-sized firearms could be concealed in pants pockets, Officer Padilla decided to pat down defendant.  The officer had defendant turn around and lace his fingers behind his head.  During the patdown, Officer Padilla felt an object in defendant's left rear pocket and asked what it was.  Defendant said it was candy.  The officer asked, and was given permission, to reach inside defendant's pocket to retrieve the object.

            As Officer Padilla reached into the pocket, defendant spun to his right, pulling his hands free, striking Officer Padilla with his forearm, and knocking the officer to the ground.  Defendant ran away with Officer Benson right behind him.  Officer Padilla was scratched but not seriously hurt.  As he called dispatch to let them know that they were in pursuit, he ran after defendant.  Officer Padilla saw defendant toss something near the barbed wire perimeter fence.  Elsewhere, Officer Benson saw defendant throw something shiny to the ground.  Officer Benson continued to yell for defendant to stop.  After a short distance, defendant gave up and was arrested.

            Once defendant was secure, Officer Benson went back to the fence and retrieved a glass marijuana smoking pipe.  Officer Padilla searched the desert and found a baggie with several off-white rocks inside which looked like rock cocaine and cocaine base.  An inventory search of the Explorer disclosed a bag containing suspected marijuana and â€