In re R.U.

Filed 11/21/08 In re R.U. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Brent F. Romney, 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, and Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

A juvenile wardship petition was filed alleging that Defendant and Appellant R.U. (minor) committed a battery upon an officer (Pen. Code,^[1] 243, subd. (b), count 1) and resisted, obstructed, or delayed an officer ( 148, subd. (a)(1), count 2). A juvenile court found the allegation in count 2 to be true, but found the allegation in count 1 to be not true. The court declared minor a ward and placed him on probation in the custody of his parents. On appeal, minor contends there was insufficient evidence to support the courts true finding in count 2. We affirm.

FACTUAL BACKGROUND

On the morning of September 11, 2006, Officer Alvin Huff was assigned to assist a parole agent in apprehending a parolee, Timothy Hill. The parole agent requested assistance because Hill had been identified as armed and dangerous. The parole agent and officer were both wearing their respective uniforms. Upon arrival at Hills residence, the parole agent knocked on the door. They were greeted by minor, and the parole agent asked if Hill lived there. Minor allowed them into the residence. The parole agent followed minor down the hallway. Officer Huff was five to 10 steps behind them and was still in the living room area when minor and the parole agent turned into the hallway. Officer Huff could not see them, but he heard the parole agent say, Let me see your hands. Let me see your hands. Officer Huff asked minor to come back toward him and then asked for identification. Minor said he did not have any. Officer Huff walked minor over to a couch and faced him toward the back side of the couch. He asked minor to place both hands behind his head so he could perform a patdown search for weapons. As soon as Officer Huff took hold of minors hands to start the search, minor pulled both arms away. Officer Huff leaned his weight up against minor, pressed him against the couch, and said, Dont get froggy with me. He again told minor to place his hands behind his head. Officer Huff took hold of minors hands, which were clasped behind his head, and started the patdown. Minor pulled away with both hands and swung back in a striking motion with his elbow, elbowing [the officer] in the head. Officer Huff forced minor to the ground and attempted to handcuff him, but minor continued to resist. Officer Huff ordered him to stop resisting, but minor did not comply. Officer Huff had hold of minors left arm, behind his back. Minor, who was on his stomach, had his right arm under his torso. Officer Huff lay on top of minor and was then able to pull minors right hand backward. However, minor tried to grab the handle of Officer Huffs gun, which was in his holster. Some of minors family members entered the room. About a minute later, Officer Huff grabbed minor by the hair and took control of him. Officer Huff escorted minor to the backseat of the patrol car.

At the jurisdiction hearing, Officer Huff testified that he was concerned about minor having a weapon because of what he overheard the parole agent say that he was there to assist in the arrest of a wanted parolee, and that he did not know who minor was. In addition, although Officer Huff did not see a bulge or any indication that minor had a weapon on his person, minor did have his hands in his waistband, under his shirt. Furthermore, based on his experience, Officer Huff knew that parolees hang out with other parolees.

At the hearing, minors father also testified. He stated that when he entered the room, he saw Officer Huff on top of minor, choking him. Minor was not moving. Minors father told Officer Huff to get off his son, but minors father did not physically enter the situation.

ANALYSIS

There Was Sufficient Evidence to Support the Juvenile Courts

True Finding in Count 2

Minor argues there was insufficient evidence to support a true finding of resisting an officer in count 2. He contends that 1) since the court did not find true the allegation in count 1 for battery, it clearly did not believe Officer Huffs testimony, and if Officer Huffs testimony was not credible, it would have been insufficient to support a true finding in count 2; and 2) Officer Huff was not justified in performing a patdown search, and thus, he was not lawfully discharging his duties when minor may have resisted. Minor additionally contends that the court violated his due process rights by failing to determine which particular act constituted resistance on his part. We disagree with minors contentions.

A. Standard of Review

The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or 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 his or her duties. [Citations.] [Citation.] (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329 (Muhammed C.).)

When reviewing a claim of insufficient evidence, we examine the entire record in the light most favorable to the prosecution to determine whether it contains reasonable, credible and solid evidence from which the jury could find the defendant guilty beyond a reasonable doubt. If the circumstances reasonably justify the verdict, we will not reverse simply because the evidence might reasonably support a contrary finding. . . . The trier of fact determines the credibility of witnesses, weighs the evidence, and resolves factual conflicts. We cannot reject the testimony of a witness that the trier of fact chooses to believe unless the testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. As part of its task, the trier of fact may believe and accept as true only part of a witnesss testimony and disregard the rest. On appeal, we must accept that part of the testimony which supports the judgment. [Citation.] (In re Daniel G. (2004) 120 Cal.App.4th 824, 830 (Daniel G.), italics added.)

B. The Evidence Was Sufficient

1. The Court Found Officer Huff to Be a Credible Witness

Officer Huff was the Peoples main witness at the jurisdiction hearing. Minor claims that because the court did not make a true finding on the allegation of battery on an officer in count 1, it meant the court found Officer Huff not to be a credible witness. Minor concludes that if the court did not find Officer Huff credible for purposes of the battery allegation, it could not find true the allegation that minor resisted the officer in count 2, since the allegations were based on the same set of facts. We disagree.

First, the court was not required to accept as true Officer Huffs entire testimony. It was permitted to believe and accept as true only part of his testimony and disregard the rest. (Daniel G., supra, 120 Cal.App.4th at p. 830.) Second, the courts decision not to sustain the battery allegation did not necessarily mean it found Officer Huff not to be credible. To the contrary, the courts true finding on count 2 obviously demonstrates that it did find him credible. Furthermore, the court could have been simply extending its leniency toward minor by finding only one allegation true. Another explanation is that the court did not believe minor intended to elbow Officer Huff, as would be required to find that he committed a battery. (People v. Lara (1996) 44 Cal.App.4th 102, 107.) The court could have reasonably viewed minors act of hitting Officer Huff with his elbow as part of his resistance to the officer, when he was pulling his hands away from the officers grasp. Since the circumstances reasonably justify the verdict, we will not reverse. (Daniel G., supra, 120 Cal.App.4th at p. 830.)

Moreover, Officer Huffs testimony that minor resisted him was uncontroverted. Officer Huff testified that when he first asked minor to place both hands behind his head in order to perform a patdown search, the officer took hold of minors hands, and minor pulled both arms away. Officer Huff leaned his weight up against minor, pressed him against the couch, and said, Dont get froggy with me. The officer again told minor to place his hands behind his head and took hold of minors hands. When the officer started the patdown, minor pulled away with both hands and struck the officer with his elbow. Officer Huff forced minor to the ground and attempted to handcuff him, but minor continued to resist. Minor did not comply with the officers order to stop resisting. Officer Huff then took hold of minors left arm, behind his back. Minor, who was on his stomach, continued to resist by hiding his right arm under his torso. Officer Huff lay on top of minor to pull minors right hand backward. Even then, minor tried to grab the handle of Officer Huffs gun, which was in the officers holster. There was more than enough evidence to support a true finding of resisting an officer in count 2.

2. Officer Huff Was Justified in Performing a Patdown Search

Minor also contends that the evidence failed to show Officer Huff was lawfully performing a patdown search at the time of resistance. Minor claims that Officer Huff could not articulate facts that provided an adequate basis for a concern for his safety. In addition, minor claims that Officer Huff used excessive force by choking him. We disagree.

An officer, in the course of the criminal investigation, may pat down the suspects outer clothing where the officer has reason to believe the suspect may be armed and dangerous. [Citation.] (People v. Lopez (2004) 119 Cal.App.4th 132, 135-136.) The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger. (Terry v. Ohio (1968) 392 U.S. 1, 27.) [I]n determining whether the officer acted reasonably in such circumstances, due weight must be given . . . to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience. (Ibid.)

Here, Officer Huff clearly articulated why he feared for his safety. He testified that he was concerned about minor having a weapon because he overheard the parole agent say, Let me see your hands. Let me see your hands. Furthermore, Officer Huff took into account the facts that he was at the house to assist in the arrest of a wanted parolee and that he did not know who minor was. In addition, Officer Huff noted that minor had his hands in his waistband under his shirt and could have been holding a weapon. Finally, based on his experience, Officer Huff knew that parolees hang out with other parolees. Under these circumstances, Officer Huff had reason to believe minor may have been armed.

Minors claim that Officer Huff used excessive force is untenable. Minor states his father testified that Officer Huff had his knee on minors back and had minors arm wrapped around minors neck. Minor then asserts that [t]he use of a chokehold to render an unresisting suspect unconscious is excessive force. First, minor was clearly not an unresisting suspect. (See ante, B.1.) Second, the only evidence that Officer Huff was choking minor, or that minor was rendered unconscious, was minors fathers opinion, which was based merely on the fact that minor was not moving. However, Officer Huff testified that because minor was struggling to get away, he had to lie on top of minor and pull minors right hand backward. Thus, minor apparently was not moving because Officer Huff had him subdued, not because minor was unconscious. Minors claim of excessive force fails.

C. There Was No Due Process Violation

Minor further claims that his due process rights were violated when the court failed to name the particular act that constituted the resistance in count 2. Minor points to the courts statement of its findings: The Court finds that Count 2 is true. The evidence is incontrovertible that there was some resistance of [sic] some point. Im not exactly sure why or how it happened, but there was resistance. We reject his argument.

Minor cites no authority for the proposition that the court was required to name a specific act to support a true finding in count 2, or that such alleged error would amount to a violation of due process. Contrary to minors claim, a juvenile court is not required to identify a specific act to support a finding of resisting an officer. In Muhammed C., supra, 95 Cal.App.4th 1325, the juvenile court simply stated: Im also convinced that [appellant] did interfere or delay police officers in the performance of their duty. . . . His acts although not constituting the most egregious [section] 148 that I have ever seen did delay, resist or obstruct the officers in the performance of their duties. (Id. at pp. 1328-1329, italics added.) The appellate court in Muhammed C. concluded that a reasonable inference could be drawn that the appellant willfully delayed the officers performance of duties by refusing their repeated requests to step away from the patrol car, while they were trying to process the car of a suspect whom they had just arrested on drug charges. (Id. at p. 1330.)

Here, just as in Muhammed C., the juvenile court did not identify the particular acts that constituted the resistance, but definitively found resistance. We conclude that a reasonable inference can easily be drawn that minor willfully resisted Officer Huff in the performance of his duties by repeatedly resisting the patdown search. (See ante, B.1.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

GAUT

J.

KING

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise noted.