P. v. Wilson

Filed 10/23/06 P. v. Wilson CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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In successive confrontations, defendants Titus Wilson and Raymond Lopez participated in the shootings of Anthony Ciancio and Michael Fielding. Convicted by jury of attempted murder with gang and firearm use enhancements, defendants appeal. They contend the prosecution used peremptory jury challenges improperly, there was insufficient evidence to support their convictions and enhancements, and the court improperly denied Lopez’s motion to suppress evidence. We affirm.

PROCEDURE

The jury found Wilson guilty of attempted murder of Ciancio and found true allegations that the attempted murder was committed willfully, deliberately, and with premeditation, involved a principal discharging a firearm and causing great bodily injury, and was committed for the benefit of a criminal street gang. The jury also found Wilson guilty of attempted murder of Fielding and found true the allegations that the attempted murder was committed willfully, deliberately, and with premeditation, involved Wilson’s personal use of a firearm causing great bodily injury, and was committed for the benefit of a criminal street gang.

The jury found Lopez guilty of attempted murder of Ciancio and found true allegations that the attempted murder was committed willfully, deliberately, and with premeditation, involved Lopez’s personal use of a firearm causing great bodily injury, and was committed for the benefit of a criminal street gang. The jury also found Lopez guilty of attempted murder of Fielding and found true allegations that the attempted murder was committed willfully, deliberately, and with premeditation, involved a principal discharging a firearm and causing great bodily injury, and was committed for the benefit of a criminal street gang.

The trial court imposed on each defendant two consecutive terms of life with no parole for 15 years for the attempted murders. It also imposed two consecutive terms of 25 years to life for enhancements on each defendant.

FACTS

A week before the shootings, Anthony Ciancio saw Wilson and Lopez riding Sacramento’s Regional Transit Light Rail. Another person also saw Wilson and Lopez and that person said, “Norcade Piru,” referring to the defendants’ gang affiliation. Wilson and Lopez confronted the man and said, “Man, don’t be saying Norcade Piru. It’s East Side Piru.”

On July 31, 2003, Michael Fielding, who was 18 years old and had been affiliated with a gang in the past, was staying with Michael Young at the residence of Young’s relatives on Norcade Circle in Sacramento County. Around midnight or one o’clock the next morning, August 1, Wilson and Lopez arrived at the residence. Wilson asked to see Michael Young. Fielding told them Young was not there. Lopez asked for a drink of water, and Fielding got some water for them. Fielding told Wilson and Lopez to be quiet because the residents were sleeping. Wilson and Lopez stayed at the residence for 15 to 25 minutes, then left.

Minutes later, in the dark of the early morning, Ciancio saw Wilson and Lopez on the street. As the defendants approached Ciancio, he tried to walk away. Wilson said to Ciancio, “Where you from?” Believing the question to be an inquiry into his gang affiliation, Ciancio replied he was from Oak Park and he did not “gang bang.” Wilson responded that he was Piru. Wilson asked if Ciancio was a South Side Crip, and Ciancio said he was not.

Lopez moved toward Ciancio and reached for a gun in his waistband. As soon as Ciancio saw Lopez reaching for the gun, he swung at Lopez, hitting him in the chin. As Ciancio turned and ran, Wilson said, “Shoot that mother fucker.” Lopez shot Ciancio in the back. The bullet went through his torso and out the front. Ciancio made it to a relative’s residence. He received treatment and, at the time of trial, wore a colostomy bag.

Wilson and Lopez ran back to the residence where Fielding was staying and banged on the door. Fielding opened the door and asked, “Are you guys running from the police? Cuz’ if you are, you can’t do that over here.” Lopez looked like he had been in a fight, and Wilson said Lopez had “got his ass whooped.” Wilson and Lopez sat on the couch. Lopez laid down on the couch, with his head on Fielding’s pillow, and appeared to be nodding off, so Fielding told him, “That’s where I’m laying at. You can’t, you can’t go to sleep. You got to go.” Lopez asked for another drink of water, but Fielding told Lopez to get it himself or told Wilson to get it for Lopez. Wilson asked to use the bathroom, and Fielding told him to go ahead but to be quiet because the residents were sleeping.

While Lopez was in the kitchen getting a drink of water, Wilson walked down the hall. Fielding heard the sound of a gun being cocked and became nervous. Wilson returned to where Fielding was and said he was leaving. When Fielding opened the door, Wilson shot Fielding six times -- twice in the chest, twice in the stomach, and one time in each arm. During the shooting, Lopez was still in the kitchen. Fielding testified Lopez looked “dumb” or “ignorant.” Wilson said, “Come on Nigga, we’re leaving.” Lopez ran past Fielding and left the residence with Wilson. Fielding survived the shooting but is disabled from the effects of the shooting.

DISCUSSION

I

Peremptory Challenges

Wilson contends the trial court erred by ruling that the prosecution did not use peremptory challenges in an unconstitutionally discriminatory way. Lopez joins in the contention. We conclude that the trial court did not err.

“[P]eremptory challenges may not be used to remove prospective jurors solely . . . because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.” (People v. Johnson (1989) 47 Cal.3d 1194, 1215 (Johnson).) When a defendant believes the prosecutor is using peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias, the defendant must timely object and make a prima facie showing of unlawful discrimination. (People v. Wheeler (1978) 22 Cal.3d 258, 280 (Wheeler); see also Batson v. Kentucky (1986) 476 U.S. 79, 96-97 [90 L.Ed.2d 69, 87-88] (Batson).)

“Once a prima facie case has been shown, the burden shifts to the other party to come forward with an explanation that demonstrates a neutral explanation related to the particular case to be tried.” (Johnson, supra, 47 Cal.3d at p. 1216.) As long as the proffered nondiscriminatory justification is genuine and neutral, it “may range from the obviously serious to the apparently trivial, from the virtually certain to the highly speculative.” (Wheeler, supra, 22 Cal.3d at p. 275.)

“If the trial court makes a ‘sincere and reasoned effort’ to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. In such circumstances, an appellate court will not reassess good faith by conducting its own comparative juror analysis. Such an approach would undermine the trial court’s credibility determinations and would discount ‘”the variety of [subjective] factors and considerations,”’ including ‘prospective jurors’ body language or manner of answering questions,’ which legitimately inform a trial lawyer’s decision to exercise peremptory challenges. [Citations.]” (People v. Montiel (1993) 5 Cal.4th 877, 909.)

“[T]he proper focus of a Batson/Wheeler inquiry, of course, is on the subjective genuineness of the race-neutral reasons given for the peremptory challenge, not on the objective reasonableness of those reasons.” (People v. Reynoso (2003) 31 Cal.4th 903, 924 (Reynoso), italics in original.) “We give great deference to the trial court in distinguishing bona fide reasons from sham excuses.” (People v. Turner (1994) 8 Cal.4th 137, 165.) The proper function of review is to determine whether the trial court’s conclusion, that the prosecutor’s subjective race-neutral reasons for exercising the peremptory challenges at issue were sincere and that defendants failed to sustain their burden of proving unlawful discriminatory intent, is supported by the record when considered under the applicable deferential standard of review. (Reynoso, supra, at p. 924.)

During jury selection, the prosecution used peremptory challenges to excuse two African-American women as prospective jurors. When both defendants objected on Wheeler/Batson grounds, the trial court found the defendants had made a prima facie case and asked the prosecutor for an explanation. The prosecutor responded that he excused the two prospective jurors because of their backgrounds in working with indigent people and foster care, which in the prosecutor’s opinion could indicate they would sympathize with the defendants.

Prospective juror L. had been arrested a year before for driving under the influence. She felt she was treated fairly. She was formerly a secretary in a pro bono legal office in Alabama, giving assistance to indigent clients in family court matters. She currently works for a state agency that regulates private post-secondary schools.

Prospective juror M. is a program manager and teacher at St. Patrick’s Day Care Center in Sacramento, which provides subsidized day care for low-income families and foster care. She formerly taught in an after-school program.

The prosecutor stated that he believed prospective jurors L. and M. would be sympathetic towards the defendants because of the defendants’ gang affiliation and the tendency of gangs to include members who come from lower socioeconomic backgrounds and are unable to pay for services, such as day care and legal representation. He noted that he challenged all jurors with that type of background. The prosecutor explained: “I don’t want them [the jurors] in a position where they are identifying these defendants with other kids that they have worked with and thinking, geez, I wonder what made them go wrong? I feel bad for them, those types of feelings of sympathy.”

The trial court found the prosecutor’s explanation was “genuine” and “credible”: “I think that [the prosecutor’s] record that he has made that he is very concerned that people who have had these kinds of occupations, either currently or in the past, may unduly identify with the defendants in this case, rooting for the underdog, so to speak.” The court therefore denied the motion.

On appeal, the defendants assert the prosecutor’s explanation was “pretextual” because the trial court instructed the jury it could not let sympathy interfere with its decision. This assertion is frivolous. The prosecutor is entitled to use peremptory challenges for any reason not prohibited by the constitution. Here, the reason given was proper and was found to be credible by the trial court. The defendants also complain that the two prospective jurors said nothing to betray possible sympathy for the defendants, and sympathy for gang members does not logically flow from the work engaged in by the prospective jurors. This argument disregards the proper Wheeler/Batson standard which commands the trial court and us to consider the subjective genuineness, not the objective reasonableness, of the prosecutor’s nondiscriminatory reasons for excusing prospective jurors.

The trial court gave the Wheeler/Batson motion full consideration, asking for an explanation from the prosecutor and analyzing that explanation for the benefit of the defendants and the record. While we accord great deference to the trial court’s decision, it requires no stretch of reasoning at all to conclude the trial court did not err in denying the motion.

II

Gang Enhancement -- Intent

Wilson and Lopez both argue that the evidence was insufficient to support the gang enhancement because there was no evidence that the crimes were committed to enable or further other criminal activity by the gang. The argument is without merit because it relies on an erroneous interpretation of the gang enhancement statute.

Penal Code section 186.22, subdivision (b) provides for an enhancement when a person “is convicted of a felony 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 . . . .” Wilson and Lopez assert the last part of the statute quoted above requires that the crime be committed to enable or further other criminal activity by the gang.

There is no requirement in section 186.22, subdivision (b), that the defendant’s intent to enable or promote criminal endeavors by gang members must relate to criminal activity apart from the offense defendant commits. To the contrary, the specific intent required by the statute is “to promote, further, or assist in any criminal conduct by gang members.” (Pen. Code, § 186.22, subd. (b), italics added.) “By its plain language, the statute requires a showing of specific intent to promote, further, or assist in ‘any criminal conduct by gang members,’ rather than other criminal conduct. (§ 186.22, subd. (b)(1), italics added.)” (People v. Romero (2006) 140 Cal.App.4th 15, 19.) Therefore, defendants’ own crimes qualified as the gang-related criminal activity. No further evidence on this element was necessary.

III

Sufficiency of Evidence -- Attempted Murder of Fielding

Lopez contends there was insufficient evidence he aided and abetted in the attempted murder of Fielding. We disagree.

“In reviewing the sufficiency of the evidence on appeal, the appellate court ‘must review the whole record in the light most favorable to the judgment 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.)

“An aider and abettor is one who acts ‘with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense.’ (People v. Beeman (1984) 35 Cal.3d 547, 560.) Neither mere presence at the scene of a crime, nor the failure to take steps to prevent a crime, is alone sufficient to establish that a person is an aider and abettor. Such evidence may, however, be considered together with other evidence in determining that a person is an aider and abettor. (Pinell v. Superior Court (1965) 232 Cal.App.2d 284, 287.)” (In re Jose T. (1991) 230 Cal.App.3d 1455, 1460, italics in original.)

“When the definition of the offense includes the intent to do some act or achieve some consequence beyond the actus reus of the crime [citation], the aider and abettor must share the specific intent of the perpetrator. By ‘share’ we mean neither that the aider and abettor must be prepared to commit the offense by his or her own act should the perpetrator fail to do so, nor that the aider and abettor must seek to share the fruits of the crime. [Citation.] Rather, an aider and abettor will ‘share’ the perpetrator's specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime. [Citations.]” (People v. Beeman, supra, 35 Cal.3d at p. 560, italics omitted.)

Lopez bases his argument solely on what happened inside the residence. He notes that he tried to go to sleep on the couch and Fielding objected. He also notes that he asked for a glass of water and, when Fielding told him to get it himself, he did. While he was getting the glass of water, Wilson shot Fielding. Lopez, looking “dumb” and “ignorant” (Fielding’s words) and “highly intoxicated” (an officer’s observation when Lopez was arrested), did not personally harm Fielding. Relying on his summary of the events, Lopez contends there was insufficient evidence he (1) knew Wilson intended to attempt murder, (2) intended to aid in Fielding’s murder, and (3) engaged in any act to aid Wilson in Fielding’s murder. In making his argument that the evidence was insufficient, Lopez fails to draw any inferences the jury was free to draw from the facts.

The prosecution presented evidence concerning gangs, in general, and the East Side Piru Bloods, the defendants’ gang. Wilson and Lopez were both validated members of the East Side Piru Bloods criminal street gang since 2001. The primary activities of the East Side Piru Bloods are to sell narcotics and control the neighborhood, including those in the neighborhood who are not gang members, through violence and fear. They claim as their territory the area in which the attempted murders were committed. Respect, resulting from fear and intimidation, is important to gang members, and a showing of disrespect is highly offensive. Gang members do not resolve conflicts through legal means but instead through violence and intimidation, including intimidation of witnesses.

Considering the gang evidence and the evidence concerning the night of the incidents, along with inferences the jury could reasonably draw, the evidence was sufficient to support findings by the jury that Lopez knew Wilson intended to kill Fielding and that Lopez not only intended to aid Wilson but aided Wilson in fact.

Wilson and Lopez knew of Fielding’s presence within their gang territory because they had been at the residence where Fielding was staying earlier in the evening. After they attempted to murder Ciancio, simply for being in their territory and failing to show the respect Wilson and Lopez demanded, Wilson and Lopez returned to the residence where they had seen Fielding. Lopez gave Wilson the gun. From these circumstances, it can be inferred that Wilson and Lopez, already engaged in violent gang activities that evening, intended to continue those activities by killing Fielding, who was not a member of their gang. The murder would serve the purposes of protecting their territory and elevating their standing within the gang by the use of murderous violence. The conduct of Wilson and Lopez, once they reached the residence, supports this inference. They loudly demanded admission. Inside, they demanded Fielding’s respect, trying to get him to get Lopez a drink of water and allow Lopez to use his pillow. When Fielding did not give that respect, they split up, thus attempting to divert Fielding’s attention away from the fact that Wilson was preparing the gun. After Wilson shot Fielding six times, Lopez fled with Wilson.

Furthermore, Wilson and Lopez were seen by Fielding together in the area just before they attempted to murder Ciancio. Therefore, Fielding was a potential witness against them. After the Ciancio incident they returned to the residence where Fielding was staying and demanded loudly to be admitted. The jury could infer that they returned to the residence to eliminate Fielding as a witness -- a shared intent to kill Fielding. After Wilson shot Fielding, he called to Lopez: “Come on Nigga, we’re leaving.” Instead of assisting Fielding, Lopez fled the scene -- evidence of his consciousness of guilt and complicity with Wilson. The evidence, along with reasonable inferences, supports Lopez’s conviction for the attempted murder of Fielding.

There was some evidence, though not admissible as to Lopez, that Wilson told someone he shot Fielding because Fielding was dealing drugs in East Side Piru Blood territory. The trial court instructed the jury not to consider it with respect to the prosecution of Lopez. Lopez asserts the jury could not rely on that evidence to find he aided and abetted Wilson’s attempted murder of Fielding. We need not disagree with this assertion to conclude the evidence was sufficient, as shown above, to support Lopez’s conviction for the attempted murder of Fielding.

IV

Sufficiency of Evidence -- Fielding Gang Enhancement

Lopez also asserts that the evidence was insufficient to support the criminal street gang enhancement associated with the attempted murder of Fielding. As with the prior argument, however, Lopez fails to credit the reasonable inferences the jury could have drawn.

Lopez contends there was no evidence he aided and abetted in the attempted murder of Fielding to benefit a gang or with the specific intent to promote, further, or assist in criminal conduct by gang members. (Pen. Code, § 186.22, subd. (b)(1).) To the contrary, the evidence supports the inferences that Wilson and Lopez were out doing the work of the gang on the night of the incidents -- intimidating and shooting Ciancio and doing likewise with Fielding, also trying to eliminate a witness that could place them together and in the area of the Ciancio shooting. That these acts were done for the benefit of their gang is a conclusion easily drawn from their gang membership and their activities, which were typically the activities of a gang member. The same evidence supports a finding that Lopez specifically intended to promote, further, or assist in criminal conduct by a gang member. He gave Wilson the gun, barged into the residence with Wilson, helped divert Fielding’s attention, and fled after the shooting. He therefore assisted in Wilson’s criminal conduct.

V

Sufficiency of Evidence --- Premeditation and

Deliberation as to Ciancio

Wilson and Lopez contend the evidence was insufficient for the jury to conclude they premeditated and deliberated with respect to the attempted murder of Ciancio. The contention is without merit.

The Supreme Court recently summarized its jurisprudence in this area: “‘”Reversal on this ground is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’ [Citation.] In People v. Anderson [(1968)] 70 Cal.2d [15,] 26-27, we identified three categories of evidence relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing. However, as later explained in People v. Pride (1992) 3 Cal.4th 195, 247: ‘Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]’ Thus, while premeditation and deliberation must result from ‘”careful thought and weighing of considerations”’ (70 Cal.2d at p. 27), we continue to apply the principle that ‘[t]he process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .” [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331-332.)’ [Citation.]” (People v. Manriquez (2005) 37 Cal.4th 547, 577.)

Wilson and Lopez first assert that evidence of planning was insubstantial. To make this assertion, they rely on the prosecutor’s argument. “The prosecution contended,” state the defendants, “that Wilson and Lopez ran into Ciancio and identified themselves as gang members. A fight ensued between Ciancio and Lopez. Ciancio won the fight, injuring Lopez’s face in several places. Lopez took out a handgun and fired a single shot at Ciancio.” The defendants call this prosecutorial argument the “facts” and then attempt to show that these “facts” do not support a finding that they planned the attempted murder of Ciancio. As the trial court informed the jury, and any law school graduate knows, attorneys’ statements are not evidence. We review the evidence, not arguments, when determining whether the evidence is sufficient to support a conviction.

The actual evidence was considerably more damning than the defendants concede. Wilson and Lopez, in the dark of night, issued a gang challenge by asking Ciancio where he was from and whether he was from a rival gang. They pursued Ciancio, even though he was trying to leave the situation, and Lopez reached for the loaded handgun in his waistband. When Ciancio struck at Lopez in self-defense, Wilson yelled, “Shoot that mother fucker.” The evidence supports a finding Wilson and Lopez planned the attempted murder even before Ciancio struck at Lopez, accusing Ciancio of rival gang membership and chasing him down with a loaded handgun, which Lopez drew. Furthermore, planning took place after Ciancio struck at Lopez when Wilson called on Lopez to shoot Ciancio, who was fleeing.

Wilson and Lopez also assert there was no evidence of motive and that the manner in which they tried to kill Ciancio did not support an inference they had a preconceived design. The motive was to benefit the street gang by violence and intimidation. The preconceived design unfolded when, acting as fellow gang members on their own turf and with a loaded gun, they chased down someone they suspected of being in a rival gang. Even if considered only after Ciancio struck at Lopez, the preconceived design was to kill someone who showed disrespect. As noted by the Supreme Court, such conception of a killing can happen rapidly, especially when the defendants have decided in advance, as gang membership teaches them, to respond violently in such circumstances.

VI

Sufficiency of Evidence -- Premeditation and

Deliberation as to Fielding

We likewise reject Lopez’s contention that there was insufficient evidence he premeditated and deliberated with respect to the attempted murder of Fielding. Fellow gang members, Wilson and Lopez, went to the residence where Fielding was staying. They observed him there, then they left. While they were gone, they asserted their territorial dominance over someone (Ciancio) they did not recognize as a fellow gang member. They chased him down and attempted to murder him. They then returned to the residence where Fielding was staying. En route Lopez gave Wilson the gun. They loudly demanded admission, then they acted to divert Fielding’s attention while Wilson prepared the gun. Wilson shot Fielding six times without warning. Wilson and Lopez then fled, thinking their job (killing Fielding) was done. The evidence supported the jury’s determination that Lopez’s attempted murder of Fielding was premeditated and deliberate.

VII

Detention of Lopez

Lopez contends his detention soon after the attempted murders was an unreasonable seizure under the Fourth Amendment and asserts the trial court erred in denying his motion to suppress evidence obtained as a result of the detention. We conclude the seizure did not violate Lopez’s constitutional rights.

At about 2:00 a.m. on the morning of the attempted murders, Sacramento Sheriff’s Department Deputy Christopher Arbuckle went to the Norcade Circle area in response to a report of a shooting. He was told the suspects were two Black men, dressed in black and red and on foot. (On cross-examination, Deputy Arbuckle said he did not have an independent recollection of receiving this information before contacting Lopez, but he believed he would have received the broadcast containing this information which was recounted in the police reports.) As Deputy Arbuckle approached Norcade Circle, another deputy pointed out Lopez, who was walking close by, and instructed Deputy Arbuckle to detain him. Deputy Arbuckle approached Lopez and, noticing Lopez was intoxicated, handcuffed Lopez and patted him down for safety reasons. He observed a wound on Lopez’s forehead. Deputy Arbuckle placed Lopez in his patrol car and drove to where the other officers were located. He asked Lopez why he was in the area. Lopez responded that he was visiting somebody on Norcade Circle but did not know the name of the person or the address. He also claimed not to know how he received the injury to his forehead. Another officer then informed Deputy Arbuckle that Lopez had outstanding warrants for his arrest.

The Fourth Amendment prohibition against unreasonable search and seizure does not require probable cause to justify a detention, but is satisfied if the officer has a reasonable suspicion of criminal activity. (United States v. Arvizu (2002) 534 U.S. 266, 273 [151 L.Ed.2d 740, 749].) In making reasonable suspicion determinations, courts must consider the “‘totality of the circumstances’” of each case to determine whether the detaining officer had a “‘particularized and objective basis’” for making the stop. (Ibid.) “To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity. [Citations.] This reasonable suspicion requirement is measured by an objective standard, not by the particular officer’s subjective state of mind at the time of the stop or detention.” (People v. Conway (1994) 25 Cal.App.4th 385, 388.) “Accordingly, the circumstances known or apparent to the officer must be such as would cause a reasonable law enforcement officer in a like position, drawing when appropriate on his or her training and experience, to suspect that criminal activity has occurred, is occurring, or is about to occur and that the person to be stopped or detained is involved in the activity.” (Id. at p. 389.)

As he does with his arguments concerning the sufficiency of the evidence, Lopez focuses only on those facts favorable to his argument. He asserts the detention was an unjustified fishing expedition and states: “The only information the police had was that they were looking for two black males dressed in red and black. Lopez, however, was alone, was not dressed in red or black, and was not acting suspiciously in any way.” The remainder of the “totality of the circumstances“ show, however, that the detention was reasonable. It occurred in the middle of the night in the vicinity of the crimes. Lopez generally matched the description conveyed to Deputy Arbuckle even if the clothing was not the same. These facts justified the initial detention. Lopez had an injury to his face, and he acted evasively, refusing to say where he had been or how he was injured. Under these circumstances, Deputy Arbuckle acted reasonably in detaining Lopez and prolonging the detention when initial investigation did not exonerate Lopez. The deputy had a particularized and objective basis for suspecting Lopez may have been involved in criminal activity.

Defendant contends the detention was the result of impermissible racial profiling. He did not make this argument in the trial court; therefore, the prosecution had no opportunity to present evidence opposing the argument. It is therefore not cognizable on appeal. (Evid. Code, § 353.) In any event, the officer was acting on information that the perpetrator of a specific crime recently committed in the area was a Black male. This was not racial profiling in the sense of attaching suspicion generally because of race. (See People v. Hester (2004) 119 Cal.App.4th 376, 388 [assuming car’s occupants are gang members because of race impermissible].)

DISPOSITION

The judgments are affirmed.

NICHOLSON , Acting P.J.

We concur:

ROBIE , J.

BUTZ , J.

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