People v. Nash, A123128 (Cal. App. 12/18/2009)

Decision Date18 December 2009
Docket NumberA123128
PartiesTHE PEOPLE, Plaintiff and Respondent, v. MARIKO M. NASH, Defendant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Not to be Published in Official Reports

DONDERO, J.

Defendant's motion to suppress evidence was denied and he was convicted following a jury trial of possession of cocaine base for sale (Health & Saf. Code, § 11351.5). In this appeal, defendant renews his objection to the seizure of cocaine, claims that the prosecutor improperly excused a potential juror for reasons related to race, objects to the flight instruction given by the trial court, and asserts that the prosecutor committed misconduct. We find that the cocaine was not seized as the result of an unlawful detention of defendant. We also conclude that the challenged juror was challenged for race-neutral reasons, the flight instruction was warranted, and no prosecutorial misconduct was committed. We therefore affirm the judgment.

STATEMENT OF FACTS

Late in the afternoon on February 9, 2008, Vallejo Police Officers Jason Potts and Sanjay Ramrakha were on patrol in the "Country Club Crest" neighborhood of Vallejo, a residential "high crime area" known for "lots of arrests for drug violations." The officers were in a black Ford Crown Victoria vehicle which was unmarked, but equipped with visible spot lamps on both front doors, an overhead red signal light, emergency lights inside the grill, strobe lights and siren. The officers were wearing blue police shirts with "Vallejo Police" patches in large bold letters on the sides and back, badges, blue jeans and black boots. One of the officers was also wearing a "balaclava" over his head as part of a undercover drug operation.

As the officers turned from Mark Street onto Leonard Avenue and proceeded southbound, they observed a group of "eight to nine subjects" standing on the sidewalk next to a garage. The officers believed the subjects "were loitering," so they stopped the car to "investigate their activity." They did not activate any lights or siren, and did not draw their weapons or yell at anyone in the group. As the officers left the vehicle a few members of the group began to "walk off" or move away northbound. The officers observed defendant "take off running westbound" away from the rest of the group, then jump a fence or gate into the backyard of a house on the corner. Officer Potts pursued defendant through a yard and "tried to tase him," but missed, as he jumped another fence. Defendant tripped as he "jumped the second fence," and officer Kevin McCarthy apprehended him.

Officer McCarthy and his trained "drug-sniffing dog" then followed the path defendant took as he ran from the officers. The dog alerted the officers to a milk crate, next to a garbage can, about six feet into the side yard of the corner house defendant passed through after he jumped the first fence. Officer Potts testified that he chased defendant right past the milk crate before he turned left and jumped over the second fence. The officer did not observe defendant throw anything into the milk crate. In plain view on the milk crate, on top of an old newspaper, was a plastic baggie that contained 13 individually packaged rocks of "what appeared to be cocaine base." Officer Potts offered expert opinion testimony that the 13 pieces of crack cocaine were "possessed for sale."

The defense offered testimony from friends of defendant who observed the incident that resulted in defendant's apprehension and presented a very different version of the incident. From the nearby residence at 107 Mark Street in Vallejo, they noticed that defendant was "hanging out" with a group of "Black males" on the sidewalk near the garage of a house at the corner of Mark Street and Leonard Avenue. A marked police vehicle drove past but "kept on going," followed by a blue car, then a third dark or olive green vehicle which sped toward the crowd in which defendant was standing. People in the group, including defendant, began to run away and scatter to avoid being struck by the green car. At least two men wearing "face ski masks," who turned out to be police officers, jumped out of the green car with guns drawn. Defendant ran from the men and jumped a fence before he was shot with a taser and fell. Defendant then put his hands up and was arrested at gunpoint.

DISCUSSION
I. The Denial of the Motion to Suppress.

Defendant claims that the cocaine found on the milk crate was seized as the result of an unlawful detention. He argues that the officers did not have adequate cause to detain him based only on the reputed "high crime area" in which they suspected "that the men were loitering." Defendant points out that he was "merely observed visiting with a group of people," which did not give the officers reasonable suspicion to "to chase and detain" him.

"The standard of appellate review of a trial court's ruling on a motion to suppress evidence is well established. We defer to the trial court's factual findings, express or implied, if supported by substantial evidence, with all presumptions favoring the trial court's exercise of its power to judge the credibility of the witnesses, resolve conflicts in the testimony, weigh the evidence and draw factual inferences. [Citations.] However, in determining whether on the facts so found the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment." (People v. McHugh (2004) 119 Cal.App.4th 202, 209.) "Further, we examine the legal issues surrounding the potential suppression of evidence derived from a police search and seizure by applying federal constitutional standards." (People v. Superior Court (Walker) (2006) 143 Cal.App.4th 1183,1195.) "Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution." (People v. Banks (1993) 6 Cal.4th 926, 934.) We defer to the trial court's findings of fact, but measure those facts against federal constitutional standards of reasonableness. (People v. Miller (2004) 124 Cal.App.4th 216, 221.)

The determinative inquiry in the present case is when a detention of defendant occurred. "A seizure occurs when the police, by the application of physical force or show of authority, seek to restrain the person's liberty [citations]; the police conduct communicates to a reasonable innocent person that the person is not free to decline the officer's request or otherwise terminate the encounter [citation]; and the person actually submits to that authority [citation] for reasons not `independent' of the official show of authority [citation]. Admittedly, the application of this test to particular circumstances is sometimes more an art than a science. [Citation.] As the high court has emphasized, `for the most part per se rules are inappropriate in the Fourth Amendment context. The proper inquiry necessitates a consideration of "all the circumstances surrounding the encounter."' [Citations.]" (People v. Brendlin (2006) 38 Cal.4th 1107, 1118.) "`"A person has been `seized' within the meaning of the Fourth Amendment" . . . "only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave."' [Citation.] The high court later made clear that this test `states a necessary, but not a sufficient, condition for seizure.' [Citation.] In order for there to be a seizure under the Fourth Amendment there must also be an arrest, by the application of physical force or by submission to the assertion of authority." (People v. Hoyos (2007) 41 Cal.4th 872, 893, italics omitted.)

"`Although there is no "bright-line" distinction between a consensual encounter and a detention . . . "the police can be said to have seized an individual `only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'"' [Citations.] `"The test is necessarily imprecise, because it is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation."' [Citation.] `The officer's uncommunicated state of mind and the individual citizen's subjective belief are irrelevant in assessing whether a seizure triggering Fourth Amendment scrutiny has occurred.' [Citation.]" (Ford v. Superior Court (2001) 91 Cal.App.4th 112, 124.) We must make a realistic assessment of appellant's encounter with the police based upon the totality of the specific facts presented to us. (People v. Bouser (1994) 26 Cal.App.4th 1280, 1287; People v. Grant (1990) 217 Cal.App.3d 1451, 1458.) "What constitutes a restraint on liberty such that a person would conclude that he is not free to leave varies with the particular police conduct at issue and the setting in which the conduct occurs." (People v. Ross (1990) 217 Cal.App.3d 879, 884.) "Circumstances establishing a seizure might include any of the following: the presence of several officers, an officer's display of a weapon, some physical touching of the person, or the use of language or of a tone of voice indicating that compliance with the officer's request might be compelled." (In re Manuel G. (1997) 16 Cal.4th 805, 821.)

No detention or seizure occurred when the officers parked their vehicle and began to approach the group assembled on the sidewalk. (People v. Turner (1994) 8 Cal.4th 137, 179-180; People v. Menifee (1979) 100 Cal.App.3d 235, 238-239.) The established rule is "`that a detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion...

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