P. v. Mitchell

sFiled 8/23/06 P. v. Mitchell CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Fresno County. Gary S. Austin and Jane A. Cardoza, Judges.^*

William I. Parks, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, David A. Rhodes and Clayton S. Tanaka, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant Shaulton Jermaine Mitchell challenges his conviction for possession of cocaine base for sale on numerous grounds, including (1) error to deny his motion to suppress; (2) violation of his rights under Miranda v. Arizona (1966) 384 U.S. 436; (3) erroneous admission of evidence under Crawford v. Washington (2004) 541 U.S. 36; (4) abuse of discretion to admit his priors for purposes of impeachment; (5) instructional error in refusing to instruct the jury with CALJIC No. 2.28, failure to timely produce evidence; and (6) ineffective assistance of counsel. We conclude Mitchell's challenges to his conviction are without merit and will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

The afternoon of September 1, 2004, Fresno City Police Officers Campos and Cantu were conducting an investigation of possible drug trafficking at the apartment complex located at 422 North Glenn after receiving complaints that young African-American males were utilizing the public areas of the complex to sell and use illegal substances. Campos had been assigned to the area, including 422 North Glenn, for approximately four years as of September 1, 2004. During that time period, he had received numerous complaints about narcotic activity at the complex and in the surrounding area.

Mitchell was in the driveway of the apartment complex talking with a woman. The officers approached Mitchell to question him as part of their investigation into drug activity at the complex and to determine if Mitchell was loitering. When the officers initially spoke to Mitchell, he was evasive. He lied and told them he resided in the apartment complex. After acknowledging that he lied when he claimed to live at the complex, Mitchell lied again when he stated he was visiting a woman who lived in the complex.

Because Mitchell was wearing baggy clothing that could hide a weapon, Mitchell was told to keep his hands out of his pockets. Mitchell repeatedly ignored directives to keep his hands out of his pockets.

The third or fourth time Mitchell ignored the instructions from the officers, he was asked to place his hands on his head and submit to a patdown search for weapons. After being instructed to place his hands on his head, Mitchell turned and ran from the officers. While fleeing from the officers, he was seen throwing a baggie into a bush.

Mitchell was apprehended. When searched, officers found a baggie containing six other baggies and $99 in cash. Officers also retrieved the item thrown into the bush and discovered it to be a baggie containing cocaine.

While handcuffed and in the back of the patrol car, Mitchell was advised of his constitutional rights. Campos testified that Mitchell waived his rights and made a statement. Mitchell claimed at trial that he was questioned without being informed of his rights.

A jury convicted Mitchell of possession of cocaine base for sale.

DISCUSSION

Mitchell raises several challenges to his conviction for possession of cocaine base for sale, including (1) error to deny his motion to suppress; (2) violation of his Miranda rights; (3) erroneous admission of evidence under Crawford; (4) abuse of discretion to admit his priors for purposes of impeachment; (5) instructional error in refusing to instruct the jury with CALJIC No. 2.28, failure to timely produce evidence; and (6) ineffective assistance of counsel.

I. Motion to Suppress

Mitchell contends the police illegally detained him and any evidence acquired as a result of the illegal detention should have been excluded.

In reviewing the denial of a motion to suppress, we review the trial court's factual findings, explicit and implicit, to determine if they were supported by substantial evidence. (People v. Soun (1995) 34 Cal.App.4th 1499, 1507.) We then exercise our independent judgment to determine if the facts found by the trial court established a violation of the Fourth Amendment. (Ibid.) The relevant facts are not in dispute. What is disputed is whether the officers were justified in questioning Mitchell and asking him to submit to a patdown search.

Analysis

Mitchell does not challenge the legality of the stop and search after he ran from the officers. He challenges only the initial questioning and directive to submit to a cursory search.

A seizure occurs when an officer restrains a person's liberty by show of authority or force. (People v. Souza (1994) 9 Cal.4th 224, 229.) A detention is a seizure within the meaning of the Fourth Amendment. (Florida v. Royer (1983) 460 U.S. 491, 498.) The issue presented is under what circumstances may an officer, without probable cause to arrest or search, constitutionally â€