In re D.M., A115877 (Cal. App. 10/18/2007)

• Decision Date: 18 October 2007
• Docket Number: A115877
• Court: California Court of Appeals Court of Appeals
• Parties: In re D.M., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.

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In re D.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. D.M., Defendant and Appellant.

A115877

Court of Appeals of California, First Appellate District, Division One

October 18, 2007

NOT TO BE PUBLISHED

Appeal from the Alameda County, Super. Ct. No. SJ06-004602.

SWAGER, J.

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 defendant's 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 officer's 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 evidence—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. [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, 142-143.) 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, 1249-1250.) "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 individual's 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, 477-478.) 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, 625-628; 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 officer's conduct conveys to a reasonable person in the defendant's 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...