P. v. Rodriguez

Filed 9/17/09 P. v. Rodriguez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed as modified.

Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzalez and Andrew Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant, Agustin Rodriguez, guilty of (1) possessing a controlled substance (Health & Saf. Code, 11378); (2) transporting a controlled substance (Health & Saf. Code, 11379); and (3) willfully resisting, delaying, or obstructing a peace officer (Pen. Code, 148, subd. (a)(1)).^[1] In regard to counts 1 and 2, the jury also found true enhancement allegations that defendant possessed for sale a substance containing 28.5 grams or more of methamphetamine, or 57 grams or more of a substance containing methamphetamine. (Pen. Code,  1203.073, subd. (b)(2).) The trial court sentenced defendant to prison for a term of two years.

Defendant makes four contentions. First, defendant asserts that substantial evidence does not support his conviction for willfully resisting, delaying or obstructing a peace officer. ( 148, subd. (a)(1).) Second, defendant contends the trial court did not adequately instruct the jury on the offense of resisting, delaying, or obstructing a peace officer. (Ibid.) Further, defendant argues that if this contention was forfeited, then he was denied effective assistance of counsel. Third, defendant asserts that the trial court abused its discretion by denying him probation. Fourth, defendant contends two fines must be stricken from the minute order and abstract of judgment because they were not imposed by the court during sentencing. The People concede that defendants fourth contention is correct. We strike defendants two fines, but otherwise affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On May 11, 2006, Riverside County Sheriffs Deputies Peterson and Bennion were on duty on eastbound Highway 60, near Box Springs Road. At approximately 3:00 p.m., the deputies saw defendant standing next to a silver vehicle, along the side of the highway. A woman, Christina, was with defendant. Deputy Peterson stopped his patrol car behind defendants vehicle, because defendant had stopped his car too close to the traffic lanes. Defendant told Deputy Peterson that his car lost power while driving up the hill, so he pulled over to the side of the road. Deputy Peterson called a tow truck for defendant, and waited with defendant for the tow truck to arrive.

While waiting for the tow truck, Deputy Peterson and defendant engaged in conversation for approximately five minutes. As they were talking, defendant was hugging Christina and avoiding eye contact. Deputy Peterson found it odd that defendant continued to hug Christina, because it was a hot day and he was hugging her like [it was] a cold night. Deputy Peterson asked defendant if defendant would consent to being searched. Defendant consented, and put his arms out. Deputy Peterson started patting defendant down.

Deputy Peterson patted defendants right-front pocket. Deputy Peterson asked defendant what was in his pocket. Defendant responded, Nothing. Deputy Peterson asked defendant if he could remove the item from his pocket. At that point, defendant took off running eastbound on the shoulder of the freeway. The deputies chased after defendant. As defendant ran, he reached into his pocket, took out a bag, and threw the bag onto the freeway. Defendant continued running. Deputy Peterson stopped traffic, and crossed the freeway lanes to retrieve the bag defendant had thrown. The bag was brown paper, and inside Deputy Peterson found another bag containing white crystal shards, which resembled crystal methamphetamine.

After defendant threw the bag, Deputy Bennion continued to chase after defendant. Several times Deputy Bennion yelled at defendant to stop; however, defendant continued to run. Defendant jumped over a chain link fence, which separated the freeway from the frontage road. Defendant then ran across the frontage road and into an open field. While in the field, defendant stopped of his own accord and laid down. In all, defendant was chased for approximately five to ten minutes, across a distance of approximately one-half mile. Defendant told the deputy that he was sorry for running, that he was a drug addict, and he was thankful that [the deputies] found the drugs so it would give him a reason to stop using. Defendant said that he drove to Riverside from Orange County to visit a friend, and that he ran from the deputies because he knew Deputy Peterson would find the drugs in his pocket.

Deputy Bennion searched defendant and found $445 in defendants wallet. The substance from the bag that defendant threw tested positive for methamphetamine. Without packaging, the methamphetamine weighed 109.80 grams. Methamphetamine users typically buy 0.25 gram, 0.50 gram, or 1.00 gram at a time. A dose of methamphetamine is typically about 0.05 gram; 109.80 grams of methamphetamine is the equivalent of 2,000 doses, and is worth approximately $4,000.

DISCUSSION

A. Substantial Evidence

Defendant contends substantial evidence does not support his conviction for willfully resisting, delaying or obstructing a peace officer who was discharging or attempting to discharge any duty of his office. ( 148, subd. (a)(1).) Specifically, defendant contends that substantial evidence does not support a finding that Deputy Peterson was performing a duty at the time defendant ran or threw the drugs. We disagree.

When analyzing whether substantial evidence supports a jurys finding, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidencethat is, evidence that is reasonable, credible and of solid valuefrom which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Snow (2003) 30 Cal.4th 43, 66.) We must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [Citation.] [I]t is not within our province to reweigh the evidence or redetermine issues of credibility. [Citation.] [Citation.] Reversal . . . is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citation.] [Citation.] (People v. Hayes (2006) 142 Cal.App.4th 175, 179.)

Section 148, subdivision (a)(1), provides: Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . shall be punished . . . .

A peace officers primary duty is to protect the public . . . . (Terry v. Garcia (2003) 109 Cal.App.4th 245, 253; see also People v. Castedy (1961) 194 Cal.App.2d 763, 769; see also Calatayud v. California (1998) 18 Cal.4th 1057, 1068-1069; see also South v. Maryland (1856) 59 U.S. 396, 403; see also 830.1, 836.) A peace officer also has the duty to reasonably investigate all suspicious activities even though the nature thereof may fall short of grounds sufficient to justify an arrest or a search of the persons or the effects of the suspects. (People v. Bloom (1969) 270 Cal.App.2d 731, 734; see also People v. Cowan (1963) 223 Cal.App.2d 109, 117.)

The jury was instructed that it could find defendant resisted a peace officer when defendant (1) ran, or (2) threw the bag of methamphetamine. The evidence shows that Deputy Peterson stopped behind defendants car because defendant had parked along the highway, too close to the traffic lanes. Deputy Peterson parked his patrol car at an angle, further from the traffic lanes than defendants car, and activated his cars lights, so that people driving by would be aware of the cars and people on the side of the road. In other words, Deputies Peterson and Bennion were performing their duty to protect the public by alerting drivers of obstacles on the side of the road.

While waiting for the tow truck, defendant acted suspiciously by hugging Christina closely and avoiding eye contact. Upon noticing defendants suspicious behavior, the deputies had a duty to investigate. When defendant ran from the deputies and threw the methamphetamine evidence onto the freeway, defendant resisted and delayed the deputies attempts to discharge their duties to investigate suspicious activity. Accordingly, we conclude that substantial evidence supports the jurys finding that defendant willfully resisted, delayed or obstructed a peace officer who was discharging or attempting to discharge any duty of his office. ( 148, subd. (a)(1).)

Defendant asserts that substantial evidence does not support his conviction for resisting, obstructing, or delaying an officer because defendant consented to the deputys search, and when defendant began running away, he was merely withdrawing his consent. Defendant argues that he had the right to withdraw his consent and end the search, and therefore, he was not interfering with any of Deputy Petersons duties. We disagree, because, while defendant could withdraw his consent to being searched, defendants acts of running away and throwing evidence onto the freeway provide substantial support for the conclusion that defendant delayed and obstructed Deputy Peterson while the deputy was attempting to investigate defendants suspicious behavior. Accordingly, we find defendants argument unpersuasive.

B. Jury Instruction

Defendant contends the trial court violated his due process rights by not adequately instructing the jury on the offense of resisting, delaying, or obstructing a peace officer. ( 148, subd. (a)(1).) Specifically, defendant asserts that the trial court needed to further define the term duty, sua sponte. Defendant contends that the trial court should have instructed the jury that (1) a duty is an obligatory action, and therefore not all police actions are duties; (2) the search of defendant was consensual, and therefore defendant could withdraw his consent; (3) if the encounter transformed into a detention, then defendant needed to know that he was being detained; and (4) if defendant was detained, then the detention had to be lawful. Defendant is essentially asserting that the court should have given a pinpoint instruction regarding the word duty. We disagree.

1. No Error

Pinpoint instructions relate particular facts to a legal issue in the case or pinpoint the crux of a defendants case, such as mistaken identification or alibi. [Citation.] [Such instructions] are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte. (People v. Saille (1991) 54 Cal.3d 1103, 1119; see also People v. Woodward (2004) 116 Cal.App.4th 821, 841 [absent a request, the court has no duty to define terms which are commonly understood by those familiar with the English language].)

Defendants trial attorney requested the court instruct the jury with CALCRIM No. 2670, which informs jurors of the meaning of lawful performance of a peace officers duties, e.g., applying excessive force is not included within the lawful performance of an officers duties. However, defendant did not request that the court define the term duty or request that the court explain the finer points of consensual searches. Accordingly, we conclude the trial court did not err by not giving the four-part instruction.

2. Harmless Error

Next, to the extent an argument could be made that duty is entwined with lawful performance (see People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [using lawful action to define duty]), and therefore defendants request for CALCRIM No. 2670 was, in effect, a request for the court to define duty, we find any error related to such an argument to be harmless.

When a trial court errs by refusing to give a pinpoint instruction, we must determine whether it is reasonably probable that the jury would have come to a different conclusion if it had been given the pinpoint instruction. (People v. Earp (1999) 20 Cal.4th 826, 887.) Closing arguments to the jury are relevant in assessing prejudice from instructional error. (People v. Hayes (2009) 171 Cal.App.4th 549, 560.)

During closing arguments, defendants trial attorney made the following remarks: The officers indicated that as part of their duties as police officers, their job is to protect the public. They decided to offer assistance to [defendant], who was stranded by the side of a vehicle on the freeway. I point this out because that was their duty. Their duty was to assist a stranded motorist, not to search a stranded motorist . . . . [The deputies] executed that duty by calling AAA. Their duty was over. [I]f you want to go a step further . . . [] . . . [] [Deputy Peterson] asked [defendant] if he could search his person . . . . According to Deputy Peterson [defendant] consented to that. [] But at some point, [defendant] either put his hand down or grabbed his pocket, and started running away. I would argue to you that if [defendant] did in fact give consent to be searched, then he has the right to withdraw that consent if he decides he no longer wants to follow through. [] I would argue to you that when [defendant] put his hands down and decided to leave the area by running, that he was revoking his consent, and at that point the officers obligation, their duty ended. Lastly, I would argue and I would mention to you that [defendant] did not resist a police officer because he gave consent. When given, if he changes his mind he can take it away. That is all he did here.

The trial court instructed the jury that defendant could be found guilty if he willfully resisted, obstructed or delayed Deputy Peterson in the performance or attempted performance of [his] duties. The trial court also informed the jury that the prosecution had to prove its case beyond a reasonable doubt. Consequently, the jury knew Deputy Peterson had to be performing a police duty in order for defendant to be found guilty, and that defendants theory of the case is that Deputy Peterson was not performing a duty because (1) he was under no duty to search defendant, and (2) defendant withdrew his consent to the search. Because the jury essentially had all the information that defendant is contending should have been included in the four-part pinpoint instruction, it is not reasonably probable that had the jury been given defendants four-part pinpoint instruction, it would have come to any different conclusion in this case.

3. Ineffective Assistance of Counsel

Defendant contends that if his trial attorney had a duty to request the pinpoint instruction, but failed to make the request, then defendant was denied effective assistance of counsel. We disagree.

To establish ineffective assistance, defendant bears the burden of showing, first, that counsels performance was deficient, falling below an objective standard of reasonableness under prevailing professional norms. Second, a defendant must establish that, absent counsels error, it is reasonably probable that the verdict would have been more favorable to him. [Citation.] (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053.)

As we have analyzed ante, under the circumstances of the case, if defendants trial counsel had requested the four-part pinpoint instruction, it is not reasonably probable that the verdict would have been more favorable to defendant. Accordingly, defendant has not established that he was denied effective assistance of counsel.

C. Probation

Defendant contends the trial court abused its discretion by not finding that defendants case was unusual and granting defendant probation. We disagree.

Generally, the grant or denial of probation is within the broad discretion of the trial court and will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary or capricious manner. [Citation.] (People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1586.)

The general rule is that a trial court shall not grant probation to a defendant who is convicted of possessing for sale a substance containing 28.5 grams or more of methamphetamine or 57 grams or more of a substance containing methamphetamine. ( 1203.073, subd. (b)(2).) However, there is an exception to this rule: a trial court may grant probation in an unusual case where the interests of justice would best be served. ( 1203.073, subd. (a).)

Defendants trial attorney argued that defendants case is unusual because (1) defendant was approximately 25 years old at the time of his arrest, and suffered no prior convictions; (2) defendant admitted being a drug addict, but had been sober for two years, following his arrest; (3) defendant was present for all of his court hearings; (4) defendant had family that would support his efforts to stay sober; and (5) defendant had been unemployed, but was eager to work.

The prosecutor argued that the case was unusual only because of the large quantity of methamphetamine in defendants possession. The prosecutor contended that defendant should not be granted probation because (1) defendant had not taken responsibility for his actions; and (2) the probation officer recommended defendant be sentenced to prison.

The trial court considered defendants age and lack of criminal history, but concluded that probation should be denied due to the large amount of methamphetamine in defendants possession. The evidence reflects that defendant had 109.80 grams of methamphetamine in his possession, which equaled approximately 2,000 doses, and was worth approximately $4,000. Due to the quantity of methamphetamine in defendants possession, the interests of justice would not have been served by granting defendant probation. Accordingly, we conclude the trial court did not abuse its discretion by denying probation.

D. Fines

Defendant contends the $200 restitution fine ( 1202.4) and $200 parole revocation fine ( 1202.45) must be stricken from the trial courts minute order and abstract of judgment, because the court did not orally pronounce those fines during sentencing. The People support defendants argument. We agree.

1. Section 1202.4

The oral pronouncement of a sentence is controlling over a minute order or the abstract of judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471-472.)

During sentencing, the trial court said, Division of Adult Institutions is authorized to collect restitution obligations. ( 2085.5.) However, the court did not specifically impose a restitution fine pursuant to section 1202.4. The abstract of judgment and the courts minute order reflect that the court imposed a $200 restitution fine. ( 1202.4) We agree with defendant and the People that the $200 restitution fine must be stricken from the minute order and abstract of judgment, because the fine was not orally pronounced during sentencing.

2. Section 1202.45

As to the $200 parole revocation fine ( 1202.45), it may not be imposed, because a restitution fine ( 1202.4, subd. (b)(1)) was not imposed. Section 1202.45 provides, [T]he court shall at the time of imposing the restitution fine pursuant to subdivision (b) of section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of section 1202.4. Since a restitution fine ( 1202.4) was not imposed, a parole revocation fine ( 1202.45) could not be imposed. Therefore, the parole revocation fine ( 1202.45) must be stricken.

DISPOSITION

The judgment is modified by striking the $200 restitution fine ( 1202.4) and $200 parole revocation fine ( 1202.45) from the minute order dated August 4, 2008, and the abstract of judgment dated August 27, 2008. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. ( 1213, 1216.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ HOLLENHORST

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.