People v. Fulkman

• Citation: 235 Cal.App.3d 555,286 Cal.Rptr. 728
• Decision Date: 22 October 1991
• Docket Number: No. E008136,E008136
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Henry FULKMAN, Defendant and Appellant.

Page 728

286 Cal.Rptr. 728

235 Cal.App.3d 555

PEOPLE of the State of California, Plaintiff and Respondent, v. Michael Henry FULKMAN, Defendant and Appellant.

No. E008136.

Court of Appeal, Fourth District, Division 2, California.

Oct. 22, 1991.

Review Denied Feb. 11, 1992.

[235 Cal.App.3d 557] Joseph A. Howell, under appointment by the Court of Appeal, San Diego, for defendant and appellant.

[235 Cal.App.3d 558] Daniel E. Lungren, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., and Steven H. Zeigen, Supervising Deputy Atty. Gen., for plaintiff and respondent.

OPINION

RAMIREZ, Presiding Justice.

Defendant has appealed from a judgment of conviction entered following a guilty plea to one count of unlawfully possessing heroin for sale (Health & Saf.Code, § 11351). On appeal, defendant contends that the magistrate improperly denied his Penal Code section 1538.5 motion to suppress certain evidence, because, he argues: (1) the magistrate failed to make an explicit finding that there was no choking or choke hold applied by the officers in removing a wad of heroin from defendant's mouth; (2) the magistrate's implied finding that there was no choking or choke hold applied by the officers was not supported by substantial evidence; and, (3) even if the officers did not apply a choke hold or choke defendant during the extraction of the wad of masking tape, the evidence must be suppressed because the officers' conduct "shocks the conscience" and thereby offends due process.

We have determined, however, that the magistrate impliedly found that there was no choke hold or choking applied by the officers, that the finding was supported by substantial evidence and that the officers' conduct was reasonable under the circumstances. Therefore, we shall affirm.

FACTS

In January 1988, Riverside police officers arrived at a residence to execute a search warrant on the residence and the defendant. Defendant, whose legs had been amputated, was discovered seated in a wheelchair on the back patio of the residence.

Apparently, defendant was observed placing a "2-inch wad" of masking tape into his mouth. ¹ During the ensuing struggle with Detective Meier and Officer Crawford to retrieve the wad of masking tape, defendant's wheelchair fell over, and defendant fell from the chair onto the cement. As defendant struggled to keep his mouth closed and the wad of masking tape in his mouth, he was breathing very heavily through his nose, like "someone ... exerting a large amount of energy."

To prevent defendant from swallowing the wad of masking tape, Detective Meier applied pressure to defendant's chin and throat with his hand, placing two or three fingers on either side of defendant's neck. When Officer Palm arrived 30 seconds after Detective Meier and Officer Crawford, he saw defendant on the ground on his back in a semi-prone position, with Detective Meier's hand on defendant's chin, placing pressure on defendant's neck so he wouldn't swallow "the wad." However, according to Officer Delarosa's testimony, "there was no hold around [defendant's] neck."

Officer Delarosa testified that when he first saw defendant, he observed "a couple of other detectives that were attempting to get [defendant] to spit something out." Officer Delarosa heard the officers shout at defendant at least three or four times to "spit out what was in his mouth." When Officer Delarosa saw that defendant still refused to comply, he assisted the other officers by inserting the capped end of his Bic pen into the corner of defendant's mouth, using a sweeping motion to pry the object out of his mouth.

Officer Delarosa retrieved the wad of masking tape, which contained 16 balloons filled with 3.4 grams of heroin. "The wad" was described as being about two inches in diameter or a little bigger than a golf ball. Defendant testified that he was trying to swallow the "2-inch wad" and that it was partially down his throat before the officers retrieved it.

In defendant's bedroom, the officers also located a billy club and drug paraphernalia, including syringes and a "cooking spoon."

In an information defendant was charged in count I with possession of heroin for sale, a felony (Health & Saf.Code, § 11351), in count II with possession of a billy club, a felony (Pen.Code, § 12020, subd. (a)), and in count III with unlawful possession of drug paraphernalia, a misdemeanor (Health & Saf.Code, § 11364). Defendant pled not guilty.

At the preliminary hearing, defendant's Penal Code section 1538.5 motion to suppress certain evidence was denied. Defendant's renewed section 1538.5 motion was heard in superior court, and again it was denied.

Defendant then withdrew his plea of not guilty and entered a plea of guilty to count I. Counts II and III were dismissed pursuant to the plea agreement. Defendant was granted probation and ordered to serve two days in jail with two days' credit for time already served. This appeal followed.

Additional facts relevant to the issues raised in this appeal are set forth, as necessary, in the discussion which follows.

DISCUSSION

In claiming that the court improperly denied his Penal Code section 1538.5 motion to suppress certain evidence, defendant makes several procedural, substantial evidence and due process arguments. We shall consider, seriatim, each argument.

Initially, defendant argues that the superior court incorrectly based its decision on an implicit rather than an explicit finding by the magistrate that there was no choke hold or choking by the officers in removing the wad of masking tape from defendant's mouth. Defendant urges that the magistrate was required to make an express finding on the issue of whether the officers had applied a choke hold or had choked him during the search, citing People v. Jones (1989) 209 Cal.App.3d 725, 257 Cal.Rptr. 500 and People v. Cappellia (1989) 208 Cal.App.3d 1331, 256 Cal.Rptr. 695, in support of this argument.

Pursuant to Penal Code section 1538.5, subdivision (i), the findings of the magistrate are binding on the superior court when a suppression motion has already been brought at the preliminary hearing. The superior court is the reviewing court and not the fact-finding court under the statute. (People v. Ramsey (1988) 203 Cal.App.3d 671, 678-679, 250 Cal.Rptr. 309.) As a result, the appellate court disregards the findings of the superior court and "reviews the determination of the magistrate who ruled on the motion to suppress. [Citation.]" (Id., at p. 679, 250 Cal.Rptr. 309.)

In reviewing the magistrate's findings, all presumptions are drawn in favor of the magistrate, whose express or implied findings must be upheld if supported by substantial evidence. (Ibid.) Further, "[w]here there are no express findings of fact, it is implied that the trial court (municipal or superior) made whatever findings were necessary to support the judgment or order. [Citations.]" (Winton v. Municipal Court (1975) 48 Cal.App.3d 228, 236, 121 Cal.Rptr. 561.)

Here the magistrate concluded that the officers' actions were reasonable under the circumstances. In making her determination, the magistrate stated: "The force [the officers] use[d] is what I consider very fair in light of the fact that he is the one gritting his teeth. He is the one swallowing. He is the one resisting. They use a hand to try to open his mouth. He doesn't open it. They use a pen to try to pry it, if you believe [defendant's] evidence[,] because he won't open his mouth. He is totally in control of the situation. Assume his evidence is true, that they hit him on the back. Hitting him on the back, as he says, in an attempt to get him to eject the stuff out of his mouth is perfectly, to me, within the scope.... I thinkthey had every right to do what they did for [defendant's] own personal safety, and for that reason, I'll deny the motion." Implicit in the magistrate's conclusion was a finding that there was no choking or choke hold applied to defendant's neck.

We also note, contrary to defendant's assertion, that neither People v. Jones, supra, 209 Cal.App.3d 725, 257 Cal.Rptr. 500, nor People v. Cappellia, supra, 208 Cal.App.3d 1331, 256 Cal.Rptr. 695, holds that the magistrate is required to make an express finding of whether the officers applied a choke hold or choked defendant during the search. (See People v. Jones, supra, 209 Cal.App.3d at pp. 730-731, 257 Cal.Rptr. 500; People v. Cappellia, supra, 208 Cal.App.3d at pp. 1338-1339, 256 Cal.Rptr. 695.)

Defendant next argues that the evidence was insufficient to support the magistrate's implicit finding that there was no choking or choke hold applied by the officers. We disagree.

Whether choking or a choke hold occurred is a question of fact for the magistrate to resolve and must be upheld if supported by substantial evidence. (People v. Jones, supra, 209 Cal.App.3d at pp. 730-731, 257 Cal.Rptr. 500; People v. Johnson (1991) 231 Cal.App.3d 1, 16, 282 Cal.Rptr. 114.) Here, as stated, the implied finding was of no choking or choke hold, and the evidence, viewed favorably to the finding, supports it.

Officer Delarosa testified that "[n]obody had a choke hold" on defendant. When asked, "And somebody's got an arm around his neck; correct?" Delarosa answered, "I don't recall either one of [the officers] having a choke hold like you're describing."

Officer Palm testified: "My recollection of that is there was no hold around his neck. Detective Meier had his hand, one of his hands on what appeared to me to be his chin, placing a pressure on his neck so he couldn't swallow the object that was in his mouth. [p] But I don't recall anybody having their arm around [defendant's] neck." Officer Palm also testified: "My recollection was it was partially on the jaw and then down--these two outside fingers were down on the neck on the side." According to Officer Palm, pressure was being applied "by where the Adam's apple was." Detective Meier was...