People v. Johnson

• Decision Date: 10 June 1991
• Docket Number: No. A048877,A048877
• Citation: 231 Cal.App.3d 1,282 Cal.Rptr. 114
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. C. Autrey JOHNSON, Defendant and Appellant.

Page 114

282 Cal.Rptr. 114

231 Cal.App.3d 1

The PEOPLE, Plaintiff and Respondent, v. C. Autrey JOHNSON, Defendant and Appellant.

No. A048877.

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

June 10, 1991.

[231 Cal.App.3d 6] Betsy Wolkin, San Francisco, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., John H. Sugiyama, Senior Asst. Atty. Gen., Martin S. Kaye, Supervising Deputy Atty. Gen., David D. Salmon, Deputy Atty. Gen., for plaintiff and respondent.

SMITH, Associate Justice.

Charged by information with unlawfully possessing cocaine (Health & Saf.Code, § 11350, subd. (a)) and a syringe (Bus. & Prof.Code, § 4149) and with resisting arrest (Pen.Code, § 148), defendant C. Autrey Johnson pled not guilty and moved in superior court to suppress evidence (id., § 1538.5). When the court denied the motion, he entered a negotiated plea of guilty to cocaine possession and was sentenced to 16 months in prison. He appeals, challenging the suppression ruling. We affirm.

BACKGROUND

Defendant first sought suppression at the preliminary hearing in municipal court, and the motion was denied. It was then renewed in superior court and denied there as well, based solely on the preliminary hearing transcript, with no new evidence presented. In these circumstances, the superior court judge did not hear the matter de novo. He had to accept the municipal court judge's express and implied factual findings to the extent supported by substantial evidence and then independently apply the appropriate legal/constitutional standards to that state of the facts. Our review standard on appeal is the same. We defer to all supported municipal court findings, draw all inferences in favor of that court's ruling, resolve legal/constitutional issues independently and, in effect, disregard the superior court's conclusions. (People v. Ramsey (1988) 203 Cal.App.3d 671, 677-679, 250 Cal.Rptr. 309; Pen.Code, § 1538.5, subd. (i); cf. People v. Laiwa (1983) 34 Cal.3d 711, 718, 195 Cal.Rptr. 503, 669 P.2d 1278; People v. Leyba (1981) 29 Cal.3d 591, 596-597, 174 Cal.Rptr. 867, 629 P.2d 961.)

The challenged search occurred in the common hallway of an apartment building at 4346 Third Street in San Francisco. The building, sandwiched "between two mom and pop type stores," apparently had just three units--Apartment 1 at ground level, Apartment 2 opening onto a second-floor landing up two sets of interior steps, and Apartment 3, which opened onto a third-floor landing at the top of more steps going up to the left from the second-floor landing.

Police officer Brian Danker and his partner, Officer Dinslage, were on duty at about 4:30 p.m. on August 25, 1989, when dispatch reported an anonymous complaint that "someone was selling drugs or doing drugs in the hallway of [the] apartment building." The officers, both in uniform, went to the address, found the street door unlocked, stepped inside a hallway and started up a short flight of steps to a first landing below the second floor. It was very dark inside, dimly lit by a single bulb.

They reached the first landing and paused. As their eyes adjusted to the darkness, they saw defendant just off the second-floor landing, on the first steps leading to the third floor. He was "crouched over in the corner," 12 to 15 feet away, angled perpendicular to them yet facing them. Danker related: "I was startled by the fact that somebody was there instead of just being there, and saying, 'Yes, Officer,' or walking past us. I didn't understand why this person was in that position and acting like that at first."

Defendant stood up. Danker then repeatedly said, " 'Come down towards me. Step down off that landing. Come down towards me....' " Defendant was "staring right at" him but gave no response. Danker recalled: "I repeated it four times. He wouldn't come down or move anywhere towards us. Then I said if I have to repeat myself one more time I'm going to come up there to get you." At that demand, defendant moved his right hand to his mouth, as if to put something in it, and simultaneously fled up the stairs toward the closed door of Apartment 3. (Defendant did not live in the building, but the officers apparently did not know him or where he lived.)

Danker did not see exactly what defendant put in his mouth. He testified: "I just saw some type of substance, which I suspected to be possibly rock cocaine." His suspicion was an assumption based on experience in working the Potrero District, where "basically" all of his arrests had involved rock cocaine.

The officers tackled defendant as he fled up the stairs. A "serious non-injury wrestling match" ensued, and it took the officers a full five minutes to get defendant "finally subdued and into handcuffs." Danker, who did not recall whether the cuffs were in front or in back, explained: "I wanted cuffs on him and I didn't care where."

Once subdued and handcuffed on the second-floor landing, defendant was brought to his feet. Dinslage at that point saw something in his mouth and, with Danker's help, tried to retrieve it. ¹ The effort took about a minute and worked. Danker held defendant from behind in a control hold, his right arm around defendant's neck and his left hand grasping and pulling on the right hand fist so that the arm forced defendant's head up and back against the officer. Danker deliberately kept the crook of his arm in front of the neck. Demonstrating for the court, he explained: "[T]he procedure ... for a control hold is keeping it in the small of your hold [sic] instead of the bar of your arm. If you can use the bar of your arm you have a situation where you can end up choking the person and killing them."

While Danker restrained defendant in that manner, Dinslage stood in front with one or both hands on the lower part of defendant's face. He was squeezing or "[c]lenching" the jaw, trying to get it open. Defendant resisted and made "gagging" noises. Then "[a]n object came flying out of [his] mouth"--a single white rock of what was stipulated below to be cocaine. It fell to the carpeted floor of the landing, where Dinslage seized it as evidence.

Afterward, Danker picked up a Ford Pinto repair book which had dropped from under defendant's arm sometime during the struggle. As he did, a hypodermic needle fell out from between the pages. It was also seized as evidence.

Defendant did not testify but called Helen Williams, who lived in Apartment 2 and saw part of the incident. She knew defendant from speaking with him on the street and had once let him into her apartment to use the bathroom.

Williams recounted hearing a moan outside her door (like a crying out) and opening it. She saw defendant, his hands behind him (as if handcuffed), being held against a wall just outside her doorway, two or three feet away, by one of the officers. The officer held him with one hand under defendant's chin, his fingers around defendant's neck, about halfway up his throat. Demonstrating for the court, she showed the officer's thumb on one side of the neck and the fingers around the other, as though pushing into the Adam's apple area. Defendant made noises--interpreted by the court as "choking and having a seizure, or something of that nature"--but could not get any words out.

According to Williams, the second officer just stood there, his hands at his side. The hallway was light enough to see, illuminated in part by an unshaded window. Neither officer had a gun, nightstick or mace drawn. Her view lasted only five or six seconds, though, because she went back inside when "[t]he officers said, 'Get back in your house and shut the damn door.' "

APPEAL

Defendant attacks the suppression ruling, contending that (1) he was detained without reasonable suspicion, (2) he was arrested without probable cause, and (3) the officers used excessive force, "choking" him to get the cocaine. We reject each point in turn.

I

The detention issue, we hold, was waived by failure to raise it anytime below. Generally, " 'questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal.' " (People v. Benson (1990) 52 Cal.3d 754, 786, fn. 7, 276 Cal.Rptr. 827, 802 P.2d 330, quoting People v. Rogers (1978) 21 Cal.3d 542, 548, 146 Cal.Rptr. 732, 579 P.2d 1048.) This is also true of search and seizure questions. (People v. Privitera (1979) 23 Cal.3d 697, 710, 153 Cal.Rptr. 431, 591 P.2d 919, cert. den., 444 U.S. 949, 100 S.Ct. 419, 62 L.Ed.2d 318.) Trial counsel's argument in superior court that "probable cause" to arrest was lacking did not preserve the issue. We reject the notion that trial attorneys commonly use that terminology to connote unjustified detentions as well as arrests. Competent counsel would be acutely aware of the distinction.

Thus, we analyze the issue indirectly, on defendant's alternative argument that trial counsel denied him effective assistance by failing to raise the issue. To succeed on that theory, however, defendant must show that (1) competent counsel would have raised the issue and (2) a favorable result was reasonably probable had the issue been posed. (In re Fields (1990) 51 Cal.3d 1063, 1069-1070, 275 Cal.Rptr. 384, 800 P.2d 862, summarizing state and federal constitutional guaranties.) He cannot satisfy either component on this record because justification for a detention was clear.

"[T]he police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity 'may be afoot,' even if the officer lacks probable cause. [p] The officer, of course, must be able to articulate something more than an 'inchoate and unparticularized suspicion or "hunch." ' ... The Fourth Amendment requires 'some minimal level of objective justification' for making the stop.... That level of...