Filed 11/8/18 P. v. M.D. CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

Minor M.D. was arrested for attempted assault on a peace officer and resisting arrest. At a jurisdictional hearing, the juvenile court found the attempted assault charge not true but the resisting arrest charge true. M.D. contends the finding on the resisting arrest charge is unsupported by substantial evidence because his arrest was unlawful and his resistance was not willful. We disagree, and we affirm.

BACKGROUND

On June 25, 2017, M.D. and two of his friends were part of a crowd that gathered in Dolores Park in San Francisco. As police offers attempted to control the crowd and remove it from the park, M.D. was involved in an incident that resulted in his arrest. A Welfare and Institutions Code section 602 petition subsequently charged him with attempted assault on a peace officer (Pen. Code, § 241, subd. (c)) and resisting arrest (id., § 148, subd. (a)(1)), both misdemeanors.

A contested jurisdictional hearing was held on September 14. The primary witness for the prosecution was San Francisco Police Officer Sean O’Rourke. Officer O’Rourke testified that on the evening of June 25, 2017, he was one of 30 to 40 police officers deployed to Dolores Park to facilitate control of a crowd of approximately 200 people that had amassed in the park. He was standing shoulder-to-shoulder with fellow officer Annie Burrows, both of them dressed in full uniform. They, along with other officers, were attempting to corral the crowd out of the park while keeping people on the sidewalk and out of the street. According to Officer O’Rourke, the crowd was becoming hostile to the officers, and as they were pushing it back, M.D., who was wearing a distinctive shirt that stood out, attempted to punch Officer Burrows in her face, coming within four inches of striking her. Officer Burrows was ordering other members of the crowd to get back and did not see M.D. attempt to strike her.

Officer O’Rourke reached out and grabbed M.D. by the collar of his shirt in order to arrest him. He did not recall saying anything as he grabbed M.D. As he held onto his collar, M.D. repeatedly pulled away from him, assisted by approximately 10 members of the crowd who had grabbed him and were pulling him back. As M.D. continued to pull away, he moved his hands up by his shoulders in what appeared to be a fighting stance, so Officer O’Rourke struck him twice in the stomach with his baton. The officer was then able to pull him away from the crowd and take him to the ground with the assistance of another officer. While on the ground, M.D. continued to fight against the officers as they were handcuffing him. Officer O’Rourke initially estimated 20 to 30 seconds passed between when he grabbed M.D.’s collar and when he struck him with the baton, later decreasing his estimate to 10 seconds.

Officer Burrows testified that she and Officer O’Rourke were attempting to move a hostile crowd back onto the sidewalk and away from another officer who was making an arrest. They had been instructed by their supervisors to keep a safe distance from and not engage with the crowd, so they were using verbal commands to move the people back. The officer did not see anyone try to strike her in the face, nor did she see Officer O’Rourke arrest anyone.

The defense presented testimony from three witnesses: Antonio L. and Nick B., both of whom were friends of defendant, and defendant himself.

Antonio testified that he went to Dolores Park with Nick and M.D., where they became part of a large crowd that had gathered. They were about to leave the park when police officers began ordering people to leave and pushing everyone out of the park. They had begun to move out with a smaller group of about 10 to 15 people when the police told them to back up. They all did except one young woman who was uncooperative, pushing back at the police when they tried to push her. M.D. tried to move her away so she would not get in trouble, and a police officer grabbed him. Antonio had not been looking directly at M.D. but he started to watch him once he was grabbed by the officer. Antonio then tried to pull M.D. back. He never heard any police officer tell M.D. he was under arrest, nor did he see M.D. do anything warranting arrest.

Antonio recorded two videos of the incident. The first video showed police officers trying to push the crowd back, with everyone cooperating except for a young woman. M.D. was trying to move her back from the police when an officer grabbed him. Antonio and Nick were pulling him by his waist away from the officer when a baton swung towards M.D. Antonio let go and backed up, and other officers raised their bean bag guns so everyone backed up. He was a foot or two away from M.D. the entire time and he never saw him raise his hands up. According to Antonio, the highest M.D. raised them was chest high when he grabbed the young woman and pulled her back. Antonio stopped recording when the officer swung his baton at M.D.

The second video began 20 to 30 seconds after everyone backed away from the bean bag guns. It showed M.D. on the ground, and Antonio could be heard saying, “Stop resisting. Stop resisting.” When asked if he saw M.D. resisting the officers, Antonio answered, “What I saw was his hand was in a weird motion and he was just trying to free it, really, but the officers were calling it resisting, so I just told him to stop resisting . . . .” It did not appear to him that M.D. was trying to prevent the officers from handcuffing him, trying to strike an officer, or taking a fighting stance.

Antonio admitted he did not see M.D. during the entire incident, having lost sight of him for “[a]bout 15 seconds.” Antonio was interviewed by an investigator from the public defender’s office on July 5, 2017, and the investigator’s report stated: “[Antonio] said that he did not see [M.D.] attempt to punch a police officer. [¶] . . . [¶] However, he said that he was not watching [M.D.] the entire time and did not see [M.D.’s] hands right before the police officer grabbed him.” Antonio testified that his “words were misinterpreted,” claiming that he was referring to a point before M.D. was pulling on the young woman; once he started doing that, Antonio was watching him. He insisted he did see M.D.’s hands right before the police grabbed him, and his hands were on the young woman he was trying to pull back towards the rest of them. He did not remember if he was looking at M.D.’s hands during the 10 or so seconds between the end of his first video and start of his second one. He acknowledged that after the police arrested M.D.,

a bystander said to him, “He tried to hit a cop,” referring to M.D.

Nick testified that prior to M.D. being arrested, he had tried to pull him back because the police were moving in closer and he knew they had to get out of there. He was pulling back on M.D. when he saw a police officer grab him. He never saw M.D. raise his hands or take a swing at a police officer, nor did he remember hearing the police tell M.D. he was under arrest. Asked if he had seen M.D. the entire time before he was arrested, Nick acknowledged he had not because he was looking around and trying to find Antonio for five to 10 seconds and lost sight of M.D. during that time. Nick acknowledged that he told the public defender’s investigator that he turned around and looked for Antonio for about 15 seconds and that when he turned back around he saw the police officers moving towards M.D. about to grab him.

M.D. testified that during the incident, he was pulling a young woman back because she was “all riled up, yelling and stuff” and “looked like she was about to do something that she shouldn’t have done.” Asked where he grabbed her, M.D. demonstrated that her arms were down at her sides and he grabbed her with his elbows against his body and his hands halfway between his waist and his chest. Just after he grabbed the woman, he was grabbed by his friends and “stumbled back a little bit . . . .” He then “came back up,” someone tugged him “a little bit,” and the officer grabbed him. He was confused when the officer grabbed him, and he never heard the officer say he was under arrest. Once it was clear the officer was trying to arrest him, he did not try to run away.

M.D. also testified that he saw a female police officer but did not interact with her in any way. He never spoke to her nor did he attempt to put his hands on her. Asked if he held his hands in a fist that evening, M.D. first said he did not and then said, “Well, maybe, but not intention [sic] to hitting at that time when the officer grabbed me.” He did not try to hit an officer, nor did he take a fighting stance.

After the conclusion of evidence, the court heard argument and then issued its ruling. It found count one—attempted assault on a peace officer—not proven beyond a reasonable doubt and thus not true. It found count two—resisting arrest—true, reasoning as follows: “I think this is close, because my perception of what happened is that the officer made a mistake, [M.D.] thought that, hey, why are you grabbing me, I haven’t done anything wrong; and as a consequence, [M.D.] reacted accordingly. But according to the way I read the law and the jury instructions, that can still be resisting arrest, so I find that that is true.”

At a November 9 disposition hearing, the court declared a wardship, ordered M.D. placed on probation, and continued his placement in his grandparents’ home under the supervision of the probation department.

This timely appeal followed.

SUBSTANTIAL EVIDENCE SUPPORTS THE COURT’S

FINDING THAT M.D. RESISTED ARREST

Penal Code section 148, subdivision (a)(1) makes it illegal to “willfully resist[], delay[], or obstruct[] any public officer, peace officer, or an emergency medical technician, . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . .” The elements of the offense are: (1) defendant willfully resisted, delayed, or obstructed a peace officer, (2) the officer was engaged in the performance of his or her duties, and (3) 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; accord In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) The officer must also have been acting lawfully at the time. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217; Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1409; People v. Olguin (1981) 119 Cal.App.3d 39, 44–45.) M.D. contends the prosecutor failed to prove all elements of this offense beyond a reasonable doubt because his arrest was unlawful and his resistance to that arrest was not willful.

As to M.D.’s first claim, an arrest is unlawful if the police officer lacks probable cause (In re Chase C. (2015) 243 Cal.App.4th 107, 114) or if the officer subjects an arrestee to excessive force (People v. Olguin, supra, 119 Cal.App.3d at pp. 44–45). M.D. contends both circumstances applied here, that there was no probable cause for his arrest and that Officer O’Rourke used excessive force. We conclude there is substantial evidence to the contrary.

Probable cause for an arrest exists when “the facts known to the arresting officer would persuade someone of ‘reasonable caution’ that the person to be arrested has committed a crime.” (People v. Celis (2004) 33 Cal.4th 667, 673.) The substance of probable cause is “ ‘ “a reasonable ground for belief of guilt.” ’ ” (Ibid.) M.D. submits Officer O’Rourke did not have a reasonable suspicion that he, M.D., had committed or was committing a crime and thus lacked probable cause. In support, he points to the juvenile court’s finding that Officer O’Rourke’s perception of M.D.’s actions was mistaken, as well as the evidence at the jurisdictional hearing that supported the court’s finding, including the testimony of Officer Burrows, Antonio, Nick, and M.D. himself. According to M.D., because Officer O’Rourke’s arrest of him “was based on a mistake of fact, his suspicion was unreasonable and subsequent conduct unlawful.” He cites no authority for his assertion that because Officer O’Rourke’s belief that M.D. committed a crime was mistaken, his belief was necessarily unreasonable and probable cause was necessarily lacking. As recognized by the juvenile court, this is not the law.

While probable cause is assessed by an objective standard, “the objective test of reasonableness is simply a measure by which we assess whether the circumstances as subjectively perceived by the officer provide a reasonable basis for the seizure.” (Cornell v. City and County of San Francisco (2017) 17 Cal.App.5th 766, 779.) The court in Agar v. Superior Court (1971) 21 Cal.App.3d 24, 29 explained this standard: “Juridically, probable cause is a legal yardstick that is used to measure reasonableness of belief; probable cause sets legal minimums on the quantity and quality of belief that will support a lawful arrest. [¶] There is no question but that probable cause is measured by an objective standard and not by a subjective standard. Like any good yardstick, its length should not vary, and that length is established by an objective standard. Not so the belief of the policeman, however, for this is personal to him, and must be established by a subjective standard. Therefore, it must first be established that the policeman did entertain a belief that a particular crime had been committed. If it is established that he did entertain such a belief, it is the function of the courts to take the measure of that belief to determine its reasonableness, and in taking this measurement, the courts are unconcerned with the policeman’s subjective opinion as to whether his belief had met the standard of probable cause.”

Here, there was evidence that as Officer O’Rourke was attempting to control a crowd, a young woman was resisting the police actions, pushing back towards the officers in a hostile manner. M.D. raised his arms and grabbed her to pull her back. It was at this moment that Officer O’Rourke apparently perceived M.D.’s hand movement as an attempt to strike Officer Burrows in the face. He was not alone in this perception, as Antonio testified that a bystander stated that M.D. tried to hit a police officer. Both Antonio and Nick admitted that they were not watching M.D. the entire time, and they both told the public defender’s investigator that they did not see M.D.’s hands immediately before Officer O’Rourke grabbed him. It is thus possible M.D. made what appeared to be a swinging gesture towards Officer Burrows that they did not observe. Likewise, while Officer Burrows testified she did not see anyone attempt to strike her, she also did not see Officer O’Rourke arrest anyone, which clearly did happen despite her failure to observe it. The foregoing is, we conclude, substantial evidence that Officer O’Rourke reasonably believed M.D. attempted to assault Officer Burrows and that he thus had probable cause to arrest him.

M.D. also contends his arrest was unlawful because Officer O’Rourke used excessive force when he struck him twice in the abdomen with a baton within 10 to 20 seconds of grabbing him by the collar and then threw him to the ground with the assistance of another officer. We conclude there is substantial evidence Officer O’Rourke’s use of force was reasonable.

An officer may lawfully use such force as is reasonable to make an arrest or to overcome resistance. (Pen. Code, § 835 [arrestee “may be subjected to such restraint as is reasonable for his arrest and detention”.) Determining whether a peace officer’s actions were objectively reasonable is “based on the facts and circumstances confronting the peace officer.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527.) “ ‘ “The ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . .” ’ [Citations.] In calculating whether the amount of force was excessive, a trier of fact must recognize that peace officers are often forced to make split-second judgments, in tense circumstances, concerning the amount of force required.” (Id. at pp. 527–528; accord, Graham v. Connor (1989) 490 U.S. 386, 396­–397 [reasonable calculus “must embody allowance for the fact that police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation”].) Officer O’Rourke testified that having seen M.D. attempt to strike Officer Burrows in the midst of an increasingly hostile crowd, he grabbed M.D. by his collar but was met with resistance. After attempting to pull M.D. from the crowd for 10 to 30 seconds, Officer O’Rourke saw M.D. raise his hands in what appeared to be a fighting stance. Given the collective resistance and hostility of the crowd, combined with M.D. assuming what Officer O’Rourke perceived to be a fighting stance after seemingly attempting to strike a fellow officer and then attempting to pull out of his grasp, the officer made a quick decision to strike M.D. twice with the baton to terminate the resistance and wrestle him to the ground to handcuff him. This is substantial evidence that Officer O’Rourke’s use of force was reasonable.

M.D. also challenges the sufficiency of the evidence that he “willfully” resisted Officer O’Rourke’s “initial seizure” of him. This is so, he argues, because Antonio and Nick both testified they were pulling him back, and Officer O’Rourke also testified that when he grabbed M.D.’s collar, members of the crowd attempted to pull him away from the officer. He additionally points to his testimony that when the police ordered the crowd out of the street, he moved back in compliance, he pulled his female friend back so she would not get in trouble, and when he did so he “stumbled back a little bit” and someone tugged him back as Officer O’Rourke was grabbing him. According to M.D., “stumbl[ing] back when O’Rourke grabbed his collar, while simultaneously being pulled by his friends behind him, was not volitional movement and therefore not willful resistance.” Even if we agreed with M.D. on this point, however, we would still find substantial evidence of willful resistance because there was a second incident of resistance—when M.D. was on the ground and struggling while being handcuffed. While M.D claims he was briefly attempting to free his arm that was pinned beneath him, and Antonio supported this version at the jurisdictional hearing, Officer O’Rourke testified M.D. fought against the officers as they attempted to handcuff him, a version corroborated by Antonio’s instruction to M.D. to “Stop resisting. Stop resisting.”

DISPOSITION

The finding of the juvenile court on count two is affirmed.

_________________________

Richman, Acting P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

A153064; P. v. M.D.