Filed 10/21/26 P. v. Carrasquillo CA5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F089718
Plaintiff and Respondent,
(Super. Ct. No. PCF445382)
v.
HECTOR IVAN CARRASQUILLO,
OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Tulare County. Robert
Anthony Fultz, Judge.
Nathan A. Coelho, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney
General, Kimberley A. Donohue, Assistant Attorney General, Ian Whitney and Joseph
Penney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
After an altercation with a neighbor (B.G.), defendant Hector Ivan Carrasquillo
was charged with felony resisting arrest (Pen. Code, § 69, subd. (a); count 1)1;
misdemeanor battery on a police officer (§ 243, subd. (b); count 2); misdemeanor battery
on B.G. (§§ 242, 243, subd. (a); count 3); and misdemeanor obstructing or resisting an
executive officer in performance of official duties (§ 148, subd. (a)(1); count 4).
A jury found defendant guilty of felony resisting arrest (count 1) and obstructing
or delaying an executive officer (count 4); found defendant not guilty of battery on a
police officer and battery on B.G., but it found defendant guilty of the respective lesser
included offenses of assault on a peace officer (§ 241, subd. (c); count 2), and simple
assault on B.G. (§§ 240, 241, subd. (a); count 3).
Defendant was sentenced to time served, with two years of probation on count 1
with no time imposed for counts 2 through 4. On appeal, defendant argues the trial court
erred in failing to instruct the jury sua sponte on self-defense as to the lesser included
offense of simple assault on count 3. Defendant also argues there is no substantial
evidence to support counts 1, 2 and 4. Finding no error, we affirm.
BACKGROUND
At trial, B.G. testified he was in the car with his family to go to the store when
defendant came toward the car speaking English. B.G. could not understand English, but
he got out of his car to see if there was a problem. He walked about four to five feet into
the street, and defendant approached him and grabbed his hand hard. B.G. told defendant
he had no problems, and then defendant released his hand. As soon as that happened,
defendant punched B.G. and threw him to the ground. B.G. denied attempting to hit
defendant before B.G. was struck, but after he was struck and knocked down, B.G.
started taking off his belt in an effort to defend his family from defendant, but B.G.’s
1 Undesignated statutory references are to the Penal Code.
2.
wife stopped him. B.G.’s family called the police. B.G. went to the hospital; his face
was red where he was struck, there was a cut on the inside of his mouth, and it was
bloody and painful. When the police arrived, a female officer tried to talk to defendant,
but B.G. saw him refuse. B.G. then saw defendant push the police officer and run into
his house. A bystander video showing some of the encounter between B.G. and
defendant, was admitted into evidence as People’s exhibit No. 3.
B.G.’s wife (S.G.) testified she was in the car when the altercation occurred. They
were in the car when defendant started yelling in English, which she did not understand.
He approached where they were sitting inside the car, and B.G. got out and told
defendant repeatedly he did not want any problems. When she saw defendant strike B.G.
with a closed fist, she got out of the car. She thought defendant was going to come after
them, too. She never saw B.G. try to hit defendant before defendant struck him. After
the police arrived, she saw defendant push one of the police officers. She denied she had
to hold B.G. back from engaging with defendant, and she did not see him take his belt off
or try to move toward defendant after he was struck.
B.G.’s sister-in-law (E.G.) was also in the car at the time of the incident. She
testified defendant came toward the car yelling in English, much of which she did not
understand. B.G. got out of the car and told defendant he did not want any problems.
They shook hands, and defendant said he did not want any problems, and then defendant
struck B.G. in the face and knocked him down. The police were called, and when they
attempted to handcuff defendant, he got aggressive and would not allow them to do so.
Defendant knocked one of the officers to the ground when she tried to handcuff him, and
he ran into his house.
B.G.’s mother-in-law, A.H., was also in the car at the time of the altercation with
defendant. Defendant was speaking English, which she could not understand. B.G. got
out of the car, and shook defendant’s hand; then defendant hit B.G. one time. She saw
defendant move toward B.G. to hit him again, but A.H. got out of the car to defend B.G.
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Defendant then started toward A.H. yelling things she could not understand. A.H. never
saw B.G. try to hit defendant, nor did she see B.G. making any gestures toward
defendant. Later, A.H. saw defendant grab one of the officers and throw her to the
ground.
Officer Jimenez was dispatched to the scene around noon—she was notified it was
a battery between neighbors. When she arrived on scene, she saw a large group of people
gathered in the roadway. She tried to disperse the group, and she spoke first with B.G.
B.G. explained that defendant, his neighbor, had confronted and physically assaulted him.
As Jimenez was speaking with B.G., Officer Madrigal arrived. Jimenez asked Madrigal
to speak with defendant, who was on the other side of the street. As Jimenez continued
talking with B.G., she heard defendant saying something like “[d]on’t touch me,” at
which point Jimenez looked up and saw that defendant was walking away from Madrigal,
not allowing a patdown. Jimenez heard Madrigal say that she needed to conduct a
patdown and defendant refused. Before Jimenez could reach them, she saw Madrigal
reaching for defendant, and then defendant placed his arms on Madrigal’s shoulders and
pulled her down to the ground with him; he got up quickly, jumped the chainlink fence,
and went into his house. Jimenez and Madrigal followed him to the front door, and told
him to come out. He cursed at them, but he eventually came out. After that, defendant
was handcuffed. Jimenez then resumed her conversation with some of the witnesses to
defendant’s altercation with B.G., and his altercation with Madrigal.
The officers arrested defendant because, in Jimenez’s view, defendant was
refusing to obey orders, he had assaulted Madrigal, and they still did not know the full
details of the altercation with B.G. While they were handcuffing him, defendant kept
pulling his arms away, so Jimenez had to hold his wrists while Madrigal placed cuffs on
him. Once that was done, the officers conducted a search incident to arrest, which
involved searching defendant’s pockets. According to Jimenez, the officers used
reasonable force to apprehend defendant; because he kept pulling away, they had to use
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force to put him into handcuffs. It required Jimenez to use both hands to get ahold of his
wrists; it would have been difficult to restrain him if he had put up more of a fight. In her
view, it was necessary to have two officers arrest him.
Had she been interacting with defendant, Jimenez testified she would have
conducted a patdown search. When the offices arrived, they did not know what the
circumstances were, whether defendant had weapons, and defendant was agitated when
they arrived. According to Jimenez, a patdown search is done for the safety of officers
and bystanders. In patdown searches in the past, Jimenez has located knives, and it is
possible for people to hide weapons under their clothing. In Jimenez’s opinion, her
interaction with defendant delayed the investigation because she had to interrupt her
interview with B.G. Footage from Jimenez’s body camera was played for the jury.
When Madrigal arrived at the scene, she saw Jimenez standing on the sidewalk
talking to individuals on one side of the street, while other people were gathered on the
opposite side of the street. She asked Jimenez who had committed the battery, and
Jimenez identified defendant. Defendant then identified himself as the person who struck
B.G. Madrigal approached defendant to get his name. She was trying to assess his
demeanor and whether he was being cooperative. She attempted to get his side of the
story, but he appeared agitated—he was yelling, and his movements were fast and erratic.
After obtaining his name, Madrigal asked defendant if he had any weapons, which he
denied. Due to his agitated state and the nature of the crime, Madrigal decided to pat
down defendant to check for weapons. Although defendant lifted up his shirt, Madrigal
still could not ascertain whether he was hiding anything in his pants pockets or behind his
back. Madrigal asked if she could conduct a patdown, and defendant refused. When he
refused to comply with the patdown, he started backing up. Madrigal explained the
patdown was not a search, but he continued to yell at her that she did not have any
authority and that she couldn’t touch him. That was when she decided to reach for his
hand and put him into handcuffs. Once she reached for his right hand, he grabbed her by
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the shoulders and pulled her to the ground. He got up immediately and ran to his
residence and locked the security door.
Madrigal followed defendant to his house because he had just pulled her to the
ground and because she still needed to conduct further investigation. Jimenez joined
Madrigal outside defendant’s residence. Defendant was not cooperative, but he did
eventually exit his residence. When he came out, he put his hands behind his back, and
they placed him in handcuffs. Although he was generally cooperative, he continued to
pull away from officers, not fully complying. Jimenez was needed to assist with
defendant until he was placed into the back of a patrol car.
Defendant made statements that he was just defending himself; he said the officers
were being aggressive. Madrigal testified she did not use more force than necessary to
handcuff defendant. Although she did exert some force to get the handcuffs on
defendant, this was because he kept pulling away. He complained about an old injury to
his shoulder, and the handcuffs were checked to be sure they were not too tight.
Madrigal sustained bruising from the incident, but she did not miss work, and she did not
see a doctor.
On cross-examination, Madrigal explained she had reasonable suspicion defendant
was armed and dangerous to justify the patdown search. She had been called to the scene
of a battery, where defendant matched the description of the suspect, and he identified
himself as the person who hit B.G. In her experience, people who have committed a
battery without a weapon are sometimes found with a weapon. As the potential
aggressor, she considered him dangerous.
The jury found defendant guilty of felony resisting arrest (count 1) and obstructing
or delaying an executive officer (count 4); found defendant not guilty of battery on a
police officer and battery on B.G., but it found defendant guilty of the respective lesser
included offenses of assault on a peace officer (§ 241, subd. (c); count 2), and simple
assault on B.G. (§§ 240, 241, subd. (a); count 3).
6.
Defendant was sentenced to time served (44 days), with two years of probation on
count 1 and no time imposed for counts 2 through 4. Defendant now appeals.
DISCUSSION
I. Self-defense Instructional Challenge
On count 3, the jury found defendant not guilty of battery, but found defendant
guilty of the lesser included charge of simple assault. Defendant argues the trial court
erred by failing to instruct the jury on self-defense as to simple assault, although the court
instructed on self-defense for battery. Defendant maintains there was substantial
evidence of self-defense: video evidence showed B.G. crossed the street to confront
defendant, and other video evidence shows defendant attempting to explain to police that
he was acting in self-defense when he struck B.G.
The People dispute there was any substantial evidence to support an instruction on
self-defense, and assert the trial court, therefore, had no sua sponte obligation to instruct
on self-defense. The People maintain there is no evidence defendant subjectively
believed he needed to use force—rather the evidence shows defendant was the aggressor.
And, even if there were evidence that defendant subjectively feared harm, the People
assert there was no evidence to support a finding that self-defense was objectively
reasonable.
A. Legal Principles
The trial court is required to instruct on self-defense when there is substantial
evidence to support the defense, and the defendant is either relying on the defense or the
defense is not inconsistent with the defendant’s theory of the case. (People v. Sedeno
(1974) 10 Cal.3d 703, 718; see People v. Breverman (1998) 19 Cal.4th 142, 157,
disapproved on another ground in People v. Schuller (2023) 15 Cal.5th 237, 260, fn. 7;
People v. Villanueva (2008) 169 Cal.App.4th 41, 49.) Evidence is substantial if a
reasonable jury could find the particular facts underlying the instruction. (People v. Salas
(2006) 37 Cal.4th 967, 982–983.) When the evidence is substantial, the trial court may
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not assess the credibility of the witnesses or weigh the evidence, which is a task for the
jury. (People v. Wickersham (1982) 32 Cal.3d 307, 324–325, disapproved on another
ground in People v. Barton (1995) 12 Cal.4th 186, 200–201.)
To justify an act of self-defense, “‘the defendant must have an honest and
reasonable belief that bodily injury is about to be inflicted on him.’” (People v. Minifie
(1996) 13 Cal.4th 1055, 1064.) Thus, the defendant’s belief must subjectively exist, and
it must be objectively reasonable. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082;
People v. Brady (2018) 22 Cal.App.5th 1008, 1014.) The threat of bodily injury must be
imminent, and the force used in response must be reasonable under the circumstances.
(People v. Minifie, supra, at pp. 1064–1065.)
To determine whether a belief is objectively reasonable, “a jury must consider
what ‘would appear to be necessary to a reasonable person in a similar situation and with
similar knowledge….’” (People v. Humphrey, supra, 13 Cal.4th at pp. 1082–1083.) The
jury must consider the issue from “‘the point of view of a reasonable person in the
position of [the] defendant[,]’” and consider “‘all the elements in the case which might be
expected to operate on his mind ….’” (Id. at p. 1083.) Under this standard, the jury
assesses “whether a person of ordinary and normal mental and physical capacity would
have believed he was in imminent danger of bodily injury under the known
circumstances.” (People v. Jefferson (2004) 119 Cal.App.4th 508, 520.)
A claim the trial court had a sua sponte duty to give an instruction involves a
question of law that is reviewed de novo. (See People v. Guiuan (1998) 18 Cal.4th 558,
569 [sua sponte duty to tailor instruction reviewed de novo]; People v. Simon (2016) 1
Cal.5th 98, 133 [trial court’s decision not to give imperfect self-defense instruction
reviewed de novo].)
B. No Substantial Evidence to Support Self-defense Instruction
On count 3, defendant was charged with misdemeanor battery of B.G. under
section 242. At trial, the jury was instructed on battery, but it was also instructed on the
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lesser included offense of simple assault against B.G. As to battery, the court instructed
the jury that the People were required to prove (1) defendant willfully and unlawfully
touched B.G. in a harmful or offensive manner and (2) defendant did not act in self-
defense.
As to simple assault, the jury was instructed that to find defendant guilty, the
People must prove (1) defendant did an act that by its nature would directly and probably
result in the application of force to a person; (2) defendant did that act willingly; (3) when
defendant acted, he was aware of facts that would lead a reasonable person to realize that
his act by its nature would directly and probably result in the application of force to
someone; and (4) when defendant acted, he had the present ability to apply force to a
person.
As already noted, the jury found defendant not guilty of the greater offense of
battery, but it found him guilty of the lesser included offense of simple assault.
Defendant did not testify, nor did he present any witness testimony. While this is
not fatal to defendant’s argument (see generally People v. De Leon (1992) 10
Cal.App.4th 815, 824 [substantial evidence of the defendant’s state of mind for imperfect
self-defense may be present without the defendant’s testimony]), the evidence of self-
defense is very minimal. Although the focus of the substantial evidence inquiry is on
quality rather than quantity, substantial evidence does not mean any evidence, it means
“‘“‘substantial’ proof of the essentials which the law requires.”’” (Roddenberry v.
Roddenberry (1996) 44 Cal.App.4th 634, 651.)
There are only two pieces of evidence that relate to defendant’s claim of self-
defense. People’s exhibit No. 3 is a low-quality bystander video that shows very little of
the encounter between defendant and B.G. The video shows B.G. walking out to
approximately the middle of the street, where he encounters defendant. They stand close
to each other for a few seconds, and then defendant walks out of the view of the video,
presumably toward his own side of the street. B.G. moves forward toward where
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defendant was last seen, also out of the picture, and then the video shows B.G. falling
backwards into the view of the camera. Other than showing that B.G. took a few steps in
defendant’s direction, there is no evidence showing B.G. attempted to assault defendant.
Nothing indicates B.G. was moving aggressively or threateningly: he simply stepped
forward toward the direction defendant had moved off the screen. There is no video
evidence of what happened in the seconds before B.G. was struck by defendant. None of
the testifying percipient witnesses indicated that B.G. made any aggressive or threatening
movements toward defendant or tried to strike, punch or hit defendant. The only other
evidence of self-defense is defendant’s claim to the officers that B.G. attacked defendant,
and he defended himself.
To infer from the video that B.G. advanced on defendant in a threatening manner
in the seconds before he was struck is merely speculation absent any other evidence as to
what B.G. did when he was out of view of the video. (Roddenberry v. Roddenberry,
supra, 44 Cal.App.4th at p. 651 [“Inferences may constitute substantial evidence, but
they must be the product of logic and reason. Speculation or conjecture alone is not
substantial evidence.”].) The video has no audio, it does not show any actions by B.G.
other than stepping forward toward defendant out of the view of the video, and the video
is not clear enough to perceive facial features or specific hand gestures and whether they
were aggressive or antagonistic.
Further, even if we assume defendant’s statement to officers that B.G. “attacked”
him establishes his actual, subjective belief in the need for self-defense, there is no
evidence—including the video—from which a jury could conclude that defendant’s
subjective belief was reasonably held. (People v. Hanna (2013) 218 Cal.App.4th 455,
462 [substantial evidence in instructional context is evidence that would permit a
reasonable jury to find defense applies].)
Further, the fact the trial court instructed on self-defense for the greater offense of
battery does not mean the court was required to do so for that offense or for the lesser
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included offense. (See People v. Barton, supra, 12 Cal.4th at p. 201 [need to instruct sua
sponte arises only when there is substantial evidence of self-defense, not when the
evidence is minimal and insubstantial].) As we find the court had no duty to instruct sua
sponte as to self-defense, we do not reach defendant’s prejudice arguments or defendant’s
arguments as to why retrial is precluded on this count. (See People v. Ellis (2024) 105
Cal.App.5th 536, 546 [finding no error, court declined to reach issue of prejudice].)
II. Substantial Evidence
Defendant challenges the substantiality of the evidence on counts 1, 2 and 3.
A. Standard of Review
When a defendant challenges the sufficiency of the evidence to support the jury’s
verdict, the substantial evidence standard of review applies.
“The Due Process Clause of the Fourteenth Amendment denies States the power to
deprive the accused of liberty unless the prosecution proves beyond a reasonable doubt
every element of the charged offense” (Carella v. California (1989) 491 U.S. 263, 265,
citing In re Winship (1970) 397 U.S. 358, 364), and the verdict must be supported by
substantial evidence (People v. Zamudio (2008) 43 Cal.4th 327, 357 (Zamudio)). On
appeal, the relevant inquiry governing a challenge to the sufficiency of the evidence “‘is
whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055.) “The record must
disclose substantial evidence to support the verdict—i.e., 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.” (Zamudio, supra, at p. 357.)
“In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence.” (Zamudio, supra, 43 Cal.4th at
p. 357.) “‘[I]t is the jury, not the appellate court which must be convinced of the
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defendant’s guilt .…’” (People v. Nguyen, supra, 61 Cal.4th at pp. 1055–1056.) “A
reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict” (Zamudio, supra, at p. 357), but “speculation, supposition and suspicion are
patently insufficient to support an inference of fact” (People v. Franklin (2016) 248
Cal.App.4th 938, 951; accord, People v. Marshall (1997) 15 Cal.4th 1, 35; People v.
Xiong (2013) 215 Cal.App.4th 1259, 1268). If the record contains substantial evidence
from which a reasonable trier of fact could have found the essential elements of the crime
proved beyond a reasonable doubt, “the possibility that the trier of fact might reasonably
have reached a different conclusion does not warrant reversal.” (People v. Taylor (2004)
119 Cal.App.4th 628, 639, citing People v. Bean (1988) 46 Cal.3d 919, 932–933.)
B. Count 3
As to count 3,defendant argues that one of the essential elements of simple assault
(the lesser included offense for which defendant was found guilty) is that defendant acted
unlawfully. (See § 240.) As a result, defendant maintains, the prosecution had the
burden to show defendant did not act in self-defense when he assaulted B.G.—i.e., that
defendant acted unlawfully. Defendant maintains there is no substantial evidence he did
not act in self-defense to support the conviction.
The People argue that because the evidence raised no inference of a justification
for defendant’s assault against B.G., the defense—not the prosecution—bore the burden
of producing evidence sufficient to raise a reasonable doubt as to whether defendant
acted unlawfully—i.e., whether he acted in self-defense.
When a defendant is charged with assault or battery, and contends that self-
defense applies, there must be sufficient evidence to raise the issue of self-defense.
(People v. Lucky (1988) 45 Cal.3d 259, 291.) If this evidentiary threshold is met
(through evidence offered by either the prosecution or the defense), then “the prosecution
has the burden to prove [the] defendant did not act in self-defense, because self-defense
12.
negates an element of [assault].” (People v. Saavedra (2007) 156 Cal.App.4th 561, 571;
accord, People v. Adrian (1982) 135 Cal.App.3d 335, 340–341.) However, where there
is no substantial evidence of self-defense, the prosecution does not have to prove the
defendant did not act in self-defense. (See People v. Lucky, supra, at p. 291.) As already
considered with respect to a self-defense instruction for simple assault on count 3, there is
no substantial evidence that defendant acted in self-defense. As such, the People did not
have the burden of proving defendant did not act in self-defense, and the evidence
supporting the simple assault conviction on count 3 is not insubstantial on that basis.
C. Counts 1 and 2
On count 1, the jury found defendant guilty of resisting an executive officer. On
count 2, the jury found defendant not guilty of battery on a peace officer, but found
defendant guilty of the lesser included offense of assault on a peace officer. Defendant
argues that the lawful performance of Madrigal’s duties is an essential element as to both
count 1 (§ 69) and count 2 (§ 243, subd. (c)(1)), and maintains there is no substantial
evidence that Madrigal acted lawfully in seeking to conduct a patdown search and to
handcuff defendant.2
1. Parties’ Arguments
The convictions on counts 1 and 2 deal with defendant’s conduct with the officers.
As to count 1, defendant was convicted of obstructing or resisting Madrigal (an executive
officer) (§ 69); and as to count 2, defendant was convicted of assault on a peace officer
(Madrigal) (§ 241, subd. (c)). Defendant maintains these charges were based solely on
his resistance to Madrigal’s unlawful attempt to patdown search and handcuff him.
Defendant argues there is no substantial evidence the patdown was justified by
reasonable suspicion that defendant was armed and dangerous, or that handcuffing him
2 Defendant’s similar argument on count 4 for resisting, delaying or obstructing a peace
officer (Jimenez) under section 148 is considered separately.
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was reasonably necessary. Without substantial evidence that Madrigal’s attempt to pat
down or handcuff defendant was lawful, defendant maintains each of these convictions
must be reversed.
The People dispute defendant’s contention and claim there is substantial evidence
from which a jury could conclude that Madrigal’s attempt to conduct a limited frisk of
defendant for weapons and her attempt to handcuff him were legally appropriate.
Further, the People point out, defendant concedes that his detention was lawful.
According to the People, defendant’s resistance to the patdown search and assault on
Madrigal obstructed the detention and allowed him to flee into his house and lock a
security door.
2. Fourth Amendment Principles
The Fourth Amendment prohibits “unreasonable searches and seizures .…” (U.S.
Const., 4th Amend.) “[A] warrantless search is per se unreasonable unless the People
prove that the search comes within a recognized exception to the warrant requirement.”
(People v. Meza (2018) 23 Cal.App.5th 604, 609–610.) A person is “seized” within the
meaning of the Fourth Amendment if, in view of all the circumstances, a reasonable
person would have believed that he was not free to leave. (Michigan v. Chesternut
(1988) 486 U.S. 567, 573.)
“‘Although police officers may not arrest or search a suspect without probable
cause and an exception to the warrant requirement, they may temporarily detain a suspect
based only on a ‘reasonable suspicion’ that the suspect has committed or is about to
commit a crime. [Citations.] Such detentions are permitted, notwithstanding the Fourth
Amendment’s requirements of probable cause and a search warrant, because they are
‘limited intrusions’ that are ‘justified by special law enforcement interests.’” (People v.
Bennett (1998) 17 Cal.4th 373, 386–387.)
In addition, “‘[i]n Terry v. Ohio (1968) 392 U.S. 1 (Terry), the United States
Supreme Court held that there exists “a narrowly drawn authority to permit a reasonable
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search for weapons for the protection of the police officer, where [the officer] has reason
to believe that [the officer] is dealing with an armed and dangerous individual, regardless
of whether [the officer] has probable cause to arrest the individual for a crime. The
officer need not be absolutely certain that the individual is armed; the issue is whether a
reasonably prudent [person] in the circumstances would be warranted in the belief that
[the officer’s] safety or that of others was in danger.”’” (People v. Pantoja (2022) 77
Cal.App.5th 483, 488, quoting King v. State of California (2015) 242 Cal.App.4th 265,
283.) The purpose of this limited search is not to uncover evidence of a crime, but to
permit the officer to pursue an investigation without fear of violence. (People v. Glaser
(1995) 11 Cal.4th 354, 364.)
Relevant factors may include “visible bulges or baggy clothing that suggest a
hidden weapon; sudden movements or attempts to reach for an object that is not
immediately visible; evasive and deceptive responses to an officer’s questions about what
the individual was doing; and unnatural hand postures that suggest an effort to conceal a
weapon.” (In re Jeremiah S. (2019) 41 Cal.App.5th 299, 305 (Jeremiah S.), citing
Thomas v. Dillard (9th Cir. 2016) 818 F.3d 864, 877.) Other relevant circumstances may
include the type of crime at issue, the detained individual’s suspected involvement in
such crime, and the searching officer’s experience with such crimes and their associated
weapon use in the particular location of the detention. (Jeremiah S., supra, at p. 305.)
Handcuffing during the course of a lawful detention “substantially increases the
intrusiveness of a detention and is not part of a typical detention.” (People v. Stier (2008)
168 Cal.App.4th 21, 27, citing United States v. Bautista (9th Cir. 1982) 684 F.2d 1286,
1289.) However, “because a police officer may take reasonable precautions to ensure
safe completion of the officer’s investigation, handcuffing a suspect during a detention
does not necessarily transform the detention into a de facto arrest.” (People v. Stier,
supra, at p. 27; see People v. Celis (2004) 33 Cal.4th 667, 675 [stopping a suspect at
gunpoint, handcuffing him, and making him sit on the ground for a short period did not
15.
convert a detention into arrest].) The relevant consideration is whether handcuffing was
reasonably necessary for the detention, and is typically sanctioned only in cases where
the officer has a reasonable basis for believing the suspect poses a present physical threat
or might flee. (People v. Stier, supra, at p. 27.) “Circumstances in which handcuffing
has been determined to be reasonably necessary for the detention include when (1) the
suspect is uncooperative; (2) the officer has information the suspect is currently armed;
(3) the officer has information the suspect is about to commit a violent crime; (4) the
detention closely follows a violent crime by a person matching the suspect’s description
and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger
or flight; or (6) the suspects outnumber the officers.” (Id. at pp. 27–28, citing
Washington v. Lambert (9th Cir. 1996) 98 F.3d 1181, 1189–1190.)
3. Lawfulness of Patdown Search
Madrigal testified that when she initiates a patdown, she typically asks for consent
first rather than commanding a person to submit to the patdown. If the situation
escalates, however, she will make the demand. In this case, when she arrived at the scene
of a reported battery, and defendant identified himself as the perpetrator, she went to ask
his name. She observed that he was yelling, his movements were fast and erratic, he was
wearing loose clothing that could be concealing a weapon, and she knew the crime
defendant allegedly committed was violent, so she felt she needed to be careful. After
she got defendant’s name, she asked to conduct a patdown of defendant to check for
weapons. Defendant refused and lifted up his shirt, but Madrigal could not tell if he was
hiding anything in his pants or behind his back. When he refused to comply with the
patdown, defendant started backing up and yelling at her that she did not have the
authority to touch him. Madrigal then reached for his hand to put him in handcuffs, and
he pulled her to the ground. He immediately got up, and he ran to his residence and
locked the security door.
16.
Defendant concedes Madrigal lawfully detained him when she approached him
and started asking him questions about hitting B.G. However, defendant argues,
Madrigal had no reasonable basis to believe defendant was armed and dangerous to
support a legal patdown search. Lacking a reasonable basis for the patdown, defendant
maintains there was no substantial evidence to show Madrigal was lawfully performing
her duties when she sought to patdown defendant and grabbed his hand to place him in
handcuffs. As such, defendant’s refusal to cooperate with Madrigal cannot support the
convictions for resisting an executive officer or assault on a peace officer.
We conclude there was substantial evidence for the jury to find, under the totality
of the circumstances, that Madrigal reasonably believed defendant was armed and
dangerous, supporting a lawful patdown of defendant. Madrigal knew from dispatch that
she was reporting to some sort of battery. Battery can involve the use of force or
violence, and in Madrigal’s experience as an officer, battery assailants are sometimes
found with weapons even if they did not commit the battery with a weapon. Defendant
identified himself as the perpetrator immediately, and he matched the description of the
suspect Madrigal was given. Madrigal observed that defendant’s behavior was erratic, he
was yelling, and his clothing was baggy and could suggest a hidden weapon. He was
larger than she was, and there were many people around. Under these circumstances, a
reasonable juror could conclude that a reasonably prudent person in these circumstances
would be warranted in the belief that the officer was “dealing with an armed and
dangerous individual .…” (Terry v. Ohio (1968) 392 U.S. 1, 27.)
Defendant takes issue with each of these factors individually and argues none
creates any reasonable suspicion to support the patdown. However, the validity of a
patdown search depends on the totality of the circumstances, not whether any single
factor alone would justify a patdown. (United States v. Arvizu (2002) 534 U.S. 266, 274
(Arvizu) [Terry precludes a “divide-and-conquer” analysis; factors are considered
together, not in isolation from each other].)
17.
Defendant argues a violent crime alone does not automatically justify a patdown
frisk, as explained in Jeremiah S., and Madrigal’s testimony regarding her experience
with batteries and initially peaceful conduct was unspecific. Defendant’s reliance on
Jeremiah S., however, is unpersuasive. In Jeremiah S., the only factor cited by the officer
to support reasonable suspicion that the suspect was armed and dangerous was the nature
of the crime (robbery) and the officers’ experience that robberies are often carried out
with weapons. (Jeremiah S., supra, 41 Cal.App.5th at p. 306.) Differently here, there
were multiple factors the officer cited in conjunction with the violent nature of the
underlying crime to support reasonable suspicion that defendant was armed and
dangerous. And, as Jeremiah S. pointed out, the violent nature of the underlying crime is
relevant to the totality of the circumstances. (Id. at p. 307.) Moreover, although
defendant claims Madrigal’s testimony regarding her experience was nonspecific as to
how frequently she encounters weapons in these types of situations, Madrigal was
entitled to draw on her “own experience and specialized training to make inferences from
and deductions about the cumulative information available to” her. (Arvizu, supra, 534
U.S. at p. 273.) The jury was entitled to consider and credit Madrigal’s testimony about
her experience with batteries in considering the totality of the circumstances. (Ibid.)
Defendant also argues the evidence does not support any conclusion that his
demeanor or movements contributed to reasonable suspicion he was armed and
dangerous. According to defendant, the video evidence contradicts Madrigal’s testimony
that defendant was agitated and yelling when she approached him; rather, defendant
argues, he became upset only after Madrigal insisted on a patdown search. And while
Jimenez testified defendant was yelling at B.G. and other witnesses when Madrigal
arrived, Jimenez had not gone to search or handcuff defendant, suggesting she was not
concerned he might be armed and dangerous.
Jimenez testified that when Madrigal arrived, defendant was continuing to yell at
witnesses and B.G.; his demeanor was verbally aggressive. Jimenez had to tell him
18.
multiple times to stay on his side of the street because he kept trying to approach B.G.
and witnesses. Jimenez’s observations support Madrigal’s testimony that defendant was
agitated and yelling when she approached him. The video recording did not begin until
Madrigal was in contact with defendant—it does not show defendant’s conduct when
Madrigal initially arrived on the scene or when she initially observed him. The jury was
entitled to credit Madrigal’s testimony, particularly in conjunction with Jimenez’s
testimony. That Jimenez had not approached defendant to search or handcuff him does
not compel a conclusion she was unconcerned he was armed and dangerous. Jimenez
was not within reach of defendant while she was interviewing others across the street,
whereas when Madrigal questioned him, she was in his immediate presence; Madrigal
would be susceptible to defendant’s use of any objects in his possession that could be
utilized as weapons against someone within arm’s reach.
Defendant similarly argues the video does not show that his movements were
erratic or fast when she approached him—rather, he argues, he made movements only
when Madrigal demanded to patdown search him and reached for his hand. According to
defendant, these movements could not have suggested he was hiding anything—he was
merely trying to avoid an unlawful patdown, which he argues he was entitled to do. As
already noted, however, the video from Madrigal’s bodycam does not reflect all of
Madrigal’s observations of defendant as it was not filming at the moment she arrived at
the scene. Moreover, the video is susceptible to an interpretation defendant became
hostile the moment he was asked if he had any weapons—before Madrigal sought
consent for a patdown search—and that he was moving somewhat erratically and quickly.
Defendant also argues his clothing could not contribute to a reasonable suspicion
he was armed and dangerous because he had lifted up his shirt and there were no visible
bulges in his shirt or sweatpants. However, as Madrigal explained, she could not see if
he had anything behind his back, and the bagginess of the sweatpants made it impossible
19.
to know if he had anything in his pockets. (Jeremiah S., supra, 41 Cal.App.5th at p. 305
[baggy clothing may suggest a hidden weapon].)
Even if none of these factors standing alone would give rise to reasonable
suspicion defendant was armed and dangerous, taken together, the jury was entitled to
find Madrigal had reasonable suspicion to conduct a patdown frisk of defendant—i.e.,
that her conduct in attempting to conduct the patdown search was lawful.
4. Lawfulness of Attempted Handcuffing
Defendant also argues that nothing justified Madrigal’s additional intrusion of
attempting to handcuff him. According to defendant, he was cooperative with Madrigal
until he refused her unlawful attempt at a patdown search; the officers had no information
he was armed or that he was about to commit a violent crime; he did not act in any
manner that suggested he was dangerous or a flight risk; and the officers outnumbered
him.
The People dispute Madrigal’s attempt to handcuff defendant was unjustified. The
People point out defendant concedes he was lawfully detained by Madrigal, and the
People argue because that detention was lawful and appropriate, defendant’s form of
resistance directly challenged the lawful detention. The People maintain a jury could
reasonably conclude from the evidence that escalating to a handcuff-facilitated detention
was appropriate.
Madrigal testified that due to the number of people in close proximity, she reached
for defendant’s hand to “detain him in handcuffs.” Defendant then grabbed Madrigal by
the arms and shoulders, and pulled her to the ground; he then got up, fled over the fence,
and ran into the house with a locked security door.
“[N]ot every use of handcuffs automatically renders a stop an arrest requiring
probable cause to satisfy Fourth Amendment reasonableness, [citation]. The relevant
inquiry is whether police have a reasonable basis to think that the person detained poses a
present physical threat and that handcuffing is the least intrusive means to protect against
20.
that threat.” (United States v. Bailey (2d Cir. 2014) 743 F.3d 322, 340.) Here, Madrigal
had reasonable suspicion to detain defendant (which defendant concedes) and to conduct
a patdown frisk for weapons. When defendant refused the patdown search, became
hostile, and started backing away from Madrigal, a reasonable jury could find Madrigal
had no safe way to detain and question defendant for purposes of investigation. A
reasonable jury could conclude that without the patdown search, Madrigal could not
ascertain whether defendant had a weapon before safely questioning him—thus, Madrigal
had reason to believe defendant posed a physical threat during the detention and
investigation. (Cf. ibid. [officers had no reasonable basis to believe suspects posed a
physical threat or flight risk where suspects had already been patted down outside a
vehicle and were found to have no weapons].)
In sum, there was substantial evidence for a jury to find that Madrigal acted
lawfully in attempting to patdown search and handcuff defendant. Thus, substantial
evidence supports the jury’s conclusion on counts 1 and 2 that Madrigal was engaged in
the lawful performance of her duties when she detained and attempted to patdown search
and handcuff appellant.3
D. Count 4
On count 4, defendant was found guilty of resisting or delaying a police officer
(Jimenez) in the performance or attempted performance of her duties under section 148,
subdivision (a). The elements of a violation of section 148, subdivision (a), include
(1) the defendant willfully resisted, delayed or obstructed a peace officer; (2) when the
officer was engaged in the lawful performance of 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 her duties. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329;
3 As we find there is substantial evidence to support the jury’s guilty verdict for resisting
an executive officer (count 1), we do not reach defendant’s additional arguments that retrial is
also barred on count 1 even as to the lesser included offense of simple assault on Madrigal.
21.
accord Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894; see CALCRIM
No. 2656.)
Defendant argues there is insufficient evidence to support the conviction on
count 4 because Jimenez assisted Madrigal in performing her official duties unlawfully.
Specifically, because Madrigal had no legal basis to patdown search or handcuff
appellant, defendant reasonably fled into his house. Although the altercation between
Madrigal and defendant interrupted Jimenez’s investigation and interviews with
witnesses, by assisting Madrigal in handcuffing appellant, defendant maintains that
Jimenez was participating in an unlawful act. Moreover, defendant argues, his actions
after surrendering himself did not cause a meaningful delay and were a reflexive reaction
to the pain from the handcuffing.
The People argue that Madrigal was engaged in a lawful detention and
(subsequent) arrest of defendant, her planned patdown was valid, and, thus, Jimenez’s
assistance in that process (including handcuffing defendant) was a lawful performance of
Jimenez’s duty. According to the People, the jury was entitled to conclude from the
evidence that both officers were acting lawfully when defendant resisted them; ran into
his house and refused to come out; and resisted handcuffing when he finally exited the
house. The People maintain that defendant’s physical resistance and flight directly
interfered with the lawful performance of the officers’ duties.
For the reasons explained as to counts 1 and 2, there was substantial evidence for
the jury to find that Madrigal’s conduct in detaining and attempting to patdown search
and handcuff defendant was a lawful exercise of her duties. Thus, there was sufficient
evidence to find that Jimenez’s actions in assisting Madrigal in arresting defendant were
also lawful.
Defendant additionally argues he was pulling away from the officers during the
handcuffing only as a response to the pain from the handcuffs, and he was not pulling
away forcefully; accordingly, defendant argues his actions did not amount to any
22.
meaningful delay. The trial evidence shows that when defendant resisted the patdown
search, threw Madrigal to the ground, and ran into his house, Jimenez came to Madrigal’s
aid; Jimenez testified this interrupted her interview of other witnesses. Defendant also
delayed responding to Jimenez’s and Madrigal’s commands that he exit the house, and,
according to Jimenez, he kept pulling his arms away while the officers were trying to
handcuff him once he stepped outside. As a result, Jimenez testified, two officers were
required to accomplish the handcuffing and arrest of defendant.
The video evidence and the officers’ testimony are sufficient for the jury to find
that defendant willfully delayed the officers’ exercise of their duties. Even to the extent
the delay was brief, there is no set period of time under the law required for a suspect’s
actions of resisting, delaying, or obstructing an officer’s investigation to constitute a
violation of section 148, subdivision (a)(1). Moreover, while the overall delay
defendant’s actions caused was not extensive, Jimenez testified defendant’s conduct
forced her to interrupt her interview with B.G. and other witnesses, and she was able to
continue her investigation only after defendant was arrested. Jimenez’s testimony
supports the jury’s conclusion that defendant’s resistance and refusal to comply with the
officers was of sufficient duration to have interfered with or delayed Jimenez’s
investigation. (See In re J.C. (2014) 228 Cal.App.4th 1394, 1400 [minor’s refusal to
comply with officer’s multiple orders was substantial evidence to support conviction
under § 148, subd. (a)(1)].)
23.
DISPOSITION
The judgment is affirmed.
MEEHAN, J.
WE CONCUR:
HILL, P. J.
HARRELL, J.
24.