In re A.L.
Filed 6/20/13 In re A.L. CA4/1
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and parties from citing or relying on opinions not certified for publication or
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COURT
OF APPAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
In re A.L., a Person Coming Under
the Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
A.L.,
Defendant and Appellant.
D061800
(Super. Ct.
No. JCM222463)
APPEAL from an order of the Superior
Court of
County, Laura H. Parsky and Richard R. Monroy, Judges, and
Peter Fagan, Temporary Judge.
name="_ftnref1" title="">* Affirmed.
Laurel M. Nelson, under appointment
by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General,
Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys
General, for Plaintiff and Respondent.
A.L. appeals from the juvenile
court's order declaring him a ward of the court after sustaining an amended
petition alleging he violated Penal Code
delaying or obstructing a peace officer; count 1) and section 594, subdivision
(a) (vandalism; count 2), and after making a true finding that A.L. committed
the vandalism for the benefit of, at the direction of, or in association with a
criminal street gang with the
specific intent to promote, further or assist criminal conduct by gang members
in violation of section 186.22, subdivision (d).
A.L. contends the trial court erred when it found he resisted or
obstructed a police officer in count 1 because the police officer who arrested
him used excessive force and was therefore acting unlawfully. A.L. also contends the trial court erred when
it denied his motion to suppress evidence stemming from his arrest on count 2
because the arresting officer only had probable cause to believe that A.L.
committed a misdemeanor, not a felony, and therefore the arresting officer
first had to obtain an arrest warrant because the crime was not committed in
the officer's presence.
As we explain, we disagree with these contentions and affirm the order
declaring A.L. a ward of the court.
DISCUSSION
I
Resisting Arrest (§ 148, subd. (a)(1))
A.L.
contends there is insufficient evidence to support the finding he violated
section 148, subdivision (a)(1) because the prosecution failed to establish
that the arresting officer was engaged in the performance of his lawful duties
at the time he handcuffed and arrested the minor.
A.
Background
San Diego Police Officer Zack
Pfannenstiel testified he received a "hot call" from dispatch about 10:40 p.m. on January 5, 2012, about a group of Hispanic males—including
one carrying a gun—running in an area in Linda Vista known for its gang
activity. Police believed the males had
been involved in a "disturbance fight." At least five patrol units responded to the
call, as did a police helicopter and a canine unit.
When Officer Pfannenstiel arrived at
the scene, two of the individuals in the group had been apprehended. Officer Pfannenstiel recognized one of those
individuals as a member of the criminal street gang Linda Vista 13. Officer Pfannenstiel testified he was
familiar with members of this gang and their monikers.
Based on the information provided
from dispatch, Officer Pfannenstiel and his partner then proceeded to the
location where the other individuals had been seen running. At that point, Officer Pfannenstiel spotted
three other individuals near an apartment complex. Officer Pfannenstiel recognized one of the
individuals as A.L., who went by the moniker "Alex Boy," and who
Officer Pfannenstiel had previously encountered at least four or five times while
on patrol in the area. According to
Officer Pfannenstiel, A.L. also matched the description given by dispatch of
one of the individuals seen running in the area. As the officers in their marked patrol car
approached the individuals, they took off running, A.L. included. Officer Pfannenstiel got out of the patrol
car and yelled, "Stop.
Police." He then started
chasing the three individuals on foot.
Officer Pfannenstiel testified that he believed one of the three
individuals he was chasing was armed because police had not found a gun on the
two individuals they already had detained and because the initial report was
that one of individuals in the group was seen with a gun. While Officer Pfannenstiel gave chase, his
partner drove the police car up a small driveway near an apartment
complex. At some point, the three
individuals must have seen the patrol car because, according to Officer
Pfannenstiel, they tried to "double back." As they did, A.L. ran right into Officer
Pfannenstiel's path.
Officer Pfannenstiel testified he ordered A.L. to the ground, but the
minor refused. At that point, Officer
Pfannenstiel was not sure whether A.L. was carrying a gun or other weapon,
although he testified that in his experience a large percentage of gang members
carry "guns, knives, something" and thus, when dealing with such
individuals, Officer Pfannenstiel assumes they are armed.
Officer Pfannenstiel next pushed A.L. to the ground. After he had done so, A.L. clenched his fists
and tensed his upper body, as demonstrated by Officer Pfannenstiel while
testifying on the witness stand. Officer
Pfannenstiel testified he thought "something [was] coming" from A.L.
at this point. Because A.L. also was not
following Officer Pfannenstiel's orders to roll over and/or to stop resisting
and continued to tense his body and clench his fists, Officer Pfannenstiel
testified he punched A.L. once in the stomach as a "distraction
blow." Officer Pfannenstiel, who
was alone at the time, again ordered A.L. to roll over onto his stomach. When A.L. did not comply, Officer
Pfannenstiel testified he rolled A.L. over and handcuffed him. As Officer Pfannenstiel was apprehending
A.L., he saw the two other individuals he had been chasing hiding behind a
bush. One of those individuals Officer
Pfannenstiel knew as also being a member of the criminal street gang Linda
Vista 13.
Officer Pfannenstiel next placed A.L. in the back of the patrol
car. Because the back partition inside
the patrol car was open, A.L. leaned up and spat on the car seat and on parts
of the front dash of the patrol car.
A.L. did not suffer any injuries and declined medical treatment.
At the conclusion of the testimony, the court found beyond a
reasonable doubt that A.L. "willfully and unlawfully" resisted arrest
in violation of section 148, subdivision (a)(1). In making its finding, the court found
Officer Pfannenstiel "not only was credible, but having sat right next to
the officer, I find there to be a certain affinity between the officer and
[A.L.] and I don't find there to be any hostility or animosity at all. I think the officer was doing his job and he
was carrying his job out to the best of his abilities given the very difficult
circumstances that he was under that evening.
And I think if [Officer Pfannenstiel and A.L.] are [to] run into each
other again in the future on the street, it would be an amicable encounter
again if the circumstances are not similar to the January 5th evening. I thought the officer showed due restraint in
a very difficult situation, and as I said, shows no animosity towards [A.L.] at
all. So I am finding Count 1 to be
true."
B. Governing Law
To establish a violation of section 148, subdivision (a)(1), the
prosecution must show that (1) the defendant willfully resisted, delayed, or
obstructed a peace officer, (2) who was engaged in the performance of his or
her duties, and (3) the defendant knew or reasonably should have known the
other person was a peace officer engaged in the performance of his or her
duties. (§ 148, subd. (a)(1); In
re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) "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." (In re Muhammad C., supra,
at p. 1329.)
When the sufficiency of the evidence is challenged on appeal as in the
instant case, we "review the whole record in the light most favorable to
the judgment [or order] below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt." (People
v. Johnson (1980) 26 Cal.3d 557, 578.)
In viewing the evidence favorably to the judgment or order, we must also
"'presume in support of the judgment [or order] the existence of every
fact the trier could reasonably deduce from the evidence. [Citation.]
If the circumstances reasonably justify the trial court's findings,
reversal is not warranted merely because the circumstances might also be
reasonably reconciled with a contrary finding.
[Citations.]'" (In re
Ryan N. (2001) 92 Cal.App.4th 1359, 1372.)
"The same standard of appellate review is applicable in considering
the sufficiency of the evidence in a juvenile proceeding as in reviewing the
sufficiency of the evidence to support a criminal
conviction." (In re
Sylvester C. (2006) 137 Cal.App.4th 601, 605.)
As relevant here, a "[d]efendant cannot be convicted of an
offense against an officer engaged in the performance of official duties unless
the officer was acting lawfully at the time.
[Citation.] '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. [Citations.]'
[Citation.]" (People v.
Simons (1996) 42
Cal.App.4th 1100, 1109, fn. omitted.)
employs reasonable force to make a lawful arrest, the officer is acting in the
performance of his or her duties; the arrestee is obliged not to resist and has
no right of self-defense against such
force. (People v. Adams (2009)
176 Cal.App.4th 946, 952; In re Bacon (1966) 240 Cal.App.2d 34, 52,
disapproved on other grounds as stated in In re Brown (1973) 9 Cal.3d
612, 623 [noting that "it is the duty of every citizen to submit to lawful
arrest"].)
However, a peace officer is not engaged in the performance of his or
her duties if an arrest is unlawful. An
arrest is unlawful if the officer uses excessive force. (People v. Delahoussaye (1989) 213
Cal.App.3d 1, 7; People v. Olguin (1981) 119 Cal.App.3d 39, 45.)
C. Analysis
Here, A.L.'s contention involves the second element of section 148,
subdivision (a)(1), to wit: the
requirement that Officer Pfannenstiel was engaged in the performance of his
lawful duties. A.L. contends there is
insufficient evidence to establish this element because Officer Pfannenstiel
used excessive and unreasonable force.
We disagree.
We conclude ample evidence in the record supports the finding that
when Officer Pfannenstiel pushed A.L. to the ground, he used objectively
reasonable force as the officer was then facing "very difficult
circumstances" as found by the juvenile court, which included chasing
known members of a criminal street gang late at night, while concerned that one
or more of those members could be armed, and doing so alone. The record also shows that A.L. initially ran
when Officer Pfannenstiel ordered him to stop and that A.L. also refused to
follow the officer's simple instruction that he get on the ground after the two
crossed paths.
Moreover, the record shows that after Officer Pfannenstiel pushed A.L.
to the ground, Officer Pfannenstiel ordered A.L. to roll over onto his
stomach. Again, A.L. refused the
officer's simple instruction and instead tensed up and clenched his fists. At that point, the record shows Officer
Pfannenstiel understandably was concerned the minor might strike him. In response, Officer Pfannenstiel punched
A.L. once in the stomach as a
"distraction blow" in order to secure A.L.'s compliance, but A.L.
continued to refuse to comply with the officer's instructions. Nevertheless, Officer Pfannenstiel then was
able to roll A.L. over and handcuff him.
Under the circumstances, we conclude substantial evidence also supports
the finding that Officer Pfannenstiel's single "distraction blow" to
A.L.'s stomach was reasonable and not excessive force. As such, we reject A.L.'s contention that the
true finding in count 1 for violation of section 148, subdivision (a) was not
supported by substantial evidence.
II
Motion to
Suppress
A.L. next contends the juvenile
court erred when it denied his motion to suppress evidence pursuant to Welfare
and Institutions Code section 700.1
because the arresting officer lacked an arrest warrant.
A. Background
Bernal Lund was the assistant pastor at the Canyon Ridge Baptist
Church (church) located in Linda Vista.
On or about January 6, 2012, while checking church property, he
discovered what turned out to be gang graffiti on a concrete storm drain on the
property. Lund reported the incident to
San Diego police.
San Diego Police Officer Joel Hoolihan testified at the suppression
hearing that he responded to a vandalism call at the church. After taking pictures and making a report of
the vandalism, Officer Hoolihan contacted San Diego Police Detective William
Miles because in the past the church had worked with Detective Miles in other
incidents of vandalism on the property.
Detective Miles testified that he was assigned to the graffiti strike
task force and that he was responsible for all graffiti-related incidents in Linda
Vista. He investigated the incident at
the church, including reviewing the photographs and Officer Hoolihan's report,
and was able to make out a "gang set and monikers" for those
responsible. Specifically, Detective
Miles determined the gang responsible was the "Linda Vista 13 Tiny
Locos." Under the "gang
set," Detective Miles identified two monikers, "Alex Boy" and
"Conejo1," followed by the letters "C.K." Based on his training and experience,
Detective Miles opined that "C.K." meant "Crip Killer."
Detective Miles testified he spoke to other gang experts in the police
department familiar with the Linda Vista area, conducted computer searches of
these monikers in a database and identified A.L. as the name associated with
the "Alex Boy" moniker. Detective
Miles along with other San Diego police officers then went to A.L.'s
residence. A.L. was not present, but
Detective Miles spoke to A.L.'s mother and younger sister. A.L.'s younger sister confirmed that A.L.
went by the moniker "Alex Boy."
A.L.'s mother subsequently contacted Detective Miles and he, along
with another officer, met A.L. and A.L.'s mother and father at a street corner
near the family residence. Detective
Miles determined A.L. smelled of alcohol, but A.L. denied he had been drinking. Because A.L. was uncooperative and because
they were located on a street corner, Detective Miles placed A.L. under arrest
for the vandalism to the church.
The juvenile court, after hearing testimony and argument from counsel,
denied the motion to suppress, ruling as follows:
"Based on the evidence adduced during this hearing and having
considered the papers of both parties, the court finds that there was probable
cause to arrest the minor. [¶] The court is considering the totality of the
circumstances and looking at it from the point of view of a reasonable officer
using ordinary care and prudence and finds that such an officer would entertain
an honest and strong suspicion that a crime had been committed, specifically,
that the vandalism had been committed, and the defendant or the minor was the
one who had done that.
"Based on the information he had from his database and the field
interview of the minor, who admitted to being Alex Boy, which was the graffiti
which was on the church property, the sister's comment that the minor had
written down that moniker, 'Alex Boy,' the detective's training and experience
in working on graffiti and gang cases and interviewing . . . people involved in
graffiti and gang activity, and also this conservation with [another gang
expert], who also gave his opinions about the meaning of the graffiti and
connecting Alex Boy to Linda Vista 13.
[¶] Based on all of those
factors, the court finds there was probable cause. Therefore, the motion is denied."
B. Governing Law and Analysis
"The
of review of a trial court's ruling on a motion to
juvenile court proceedings. '"On
appeal from the denial of a suppression motion, the court reviews the evidence
in a light favorable to the trial court's ruling. [Citation.]
We must uphold those express or implied findings of fact by the trial
court that are supported by substantial
evidence and independently determine whether the facts support the court's
legal conclusions."
[Citation.]'" (In re
Lennies H. (2005) 126 Cal.App.4th 1232, 1236.)
As relevant
here, under section 836, subdivision (a), a police officer may arrest a person
without a warrant when "
not in the officer's presence" or "
[t]he officer has probable cause to believe that the person to be arrested has
committed a felony, whether or not a felony, in fact, has been
committed." Probable cause to arrest
"is measured by an objective standard based on the information known to
the arresting officer, rather than a subjective standard that would take into
account the arresting officer's actual motivations and
beliefs. . . ." (
Cal.App.4th 1033, 1045.)
Here,
A.L. wisely does not argue that Detective Miles lacked probable cause to
believe that A.L. was responsible (at least in part) for the vandalism on the
church property, inasmuch as the record contains ample evidence to support that
finding. Instead, A.L. contends his
conduct in vandalizing that property was not a felony because under section
594, subdivision (b)(1), vandalism that causes $400 or more in damage is
chargeable as a felony. According to
A.L., because the assistant pastor of the church testified at the
suppression hearing that the church spent $150 to paint over the graffiti,
A.L's conduct could only have been charged as a misdemeanor. We reject this contention.
First, that the church spent $150 after
the fact to repair the vandalism is not relevant to the issue of whether an
arresting officer like Detective Miles had reasonable cause at the time of
arrest to arrest A.L. for the vandalism.
(See Gillan v. City of San Marino,
supra, 147 Cal.App.4th at p.
1045.)
Second, under section 594.3, subdivision (a), it is a felony to
vandalize a "church, synagogue, temple, building owned and occupied by a
religious educational institution, or other place primarily used as a place of
worship where religious services are regularly
conducted . . . ."
For this separate reason, we find A.L.'s contention unavailing.
Finally, under section 186.22, subdivision (d), any misdemeanor
offense may be charged as a felony when, as here, it is committed for the
benefit of, at the direction of, or in association with, any criminal street
gang, with the specific intent to promote, further or assist in any criminal
conduct by gang members. The record
shows A.L. was properly charged for, and ultimately the juvenile court made a true
finding of, felony vandalism under this statute. We thus independently conclude the record
supports the finding of the trial court that Detective Miles had probable cause
to arrest A.L. without first obtaining a warrant. (See In re Lennies H., supra, 126 Cal.App.4th at p. 1236.)
DISPOSITION
The juvenile court's order declaring A.L. a ward
of the court is affirmed.
BENKE, J.
WE CONCUR:
McCONNELL,
P. J.
HALLER,
J.
name="_ftn1" title="">* Pursuant
to article VI, section 21 of the California Constitution.
name="_ftn2" title="">[1] All statutory references are to the
Penal Code unless noted otherwise.
