ZELON
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. Nos. KA088442, KA088914)
APPEAL from a judgment of the Superior Court of Los Angeles County. Carol Williams Elswick, Judge. Reversed in part; affirmed in part.
Rachel Lederman, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Tasha G. Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
In two cases, Kim Puckett was convicted of second degree robbery (Pen. Code,§ 211); possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)); possession of a smoking device (Health & Saf. Code, § 11364, subd. (a)); and resisting an officer (§ 148, subd. (a)(1)). On appeal, he contends that the evidence was insufficient to support his misdemeanor conviction of resisting an officer and that the jury was instructed improperly at both trials. We reverse the conviction for resisting an officer but otherwise affirm.
Unless otherwise indicated, all further statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
In case No. KA088914, Puckett was charged with possession of a controlled substance, possession of a smoking device, and resisting an officer. In case No. KA088442, Puckett was charged with second degree robbery. The two matters were separately tried.
Case No. KA088914 was tried first. At a pretrial hearing, defense counsel requested that the prosecution be prohibited from eliciting testimony concerning Puckett's status as a parolee at that time of his arrest. The prosecutor responded that "The People would agree to a sanitized version. As for a reason, the officer engaged the defendant or started a detention." The prosecutor advised the court that he expected the testimony to be that the arresting officer recognized Puckett from a briefing in which he had learned that Puckett was a parolee at large, and that it was based upon the parolee-at-large briefing that the officer ordered Puckett to stop. Defense counsel responded that "With respect to the basis for the stop, my understanding is that in terms of the reason for the stop, perhaps the best we could do is an indication that the officer had information from a prior briefing." He stated that he was "concerned about the initial reason for the stop and how we're going to describe that. My initial reasoning was that we not allow any particular mention for the basis of the stop." The prosecutor did not request a stipulation that there was a legal basis for the detention.
The court ruled, "In light of this discussion with the lawyers, at this time, the court will allow a sanitized version, and the court will instruct Officer Rodriguez as follows.
The People would be relaying this to Officer Rodriguez that Officer Rodriguez can testify that he recognized the defendant from a prior briefing; and as a result, he then gave certain commands. The officer can testify as to what commands he gave and what the sequence was between those commands and/or the defendant's actions and further describe what happened next. But he's not to mention in any way, shape, or form that he recognized the defendant based upon the parolee-at-large briefing that he had taken part in at some earlier point in time."
Only two witnesses testified at this trial: the arresting officer and a criminalist who analyzed the drugs recovered at the scene. The arresting officer testified that he was on duty and in uniform on the date of the arrest. He and another officer went to a residence in an area known for high drug use to look for Puckett and to look for evidence of drug use. They first walked to an open front patio area, then down an open walkway that led to a low wall separating the side of the house and the main courtyard area of the residence.
Looking over the wall, the officer saw Puckett standing alone and recognized him from "a prior briefing" that had occurred earlier that day. The officer waved his hand to get Puckett's attention, and told him in an elevated voice to stop right there. Puckett looked over but ignored the officer. The officer again told Puckett to stop and that he needed to speak with him. Puckett began to walk away from the officer. At least twice more the officer instructed Puckett to stop, but he continued to walk away.
As Puckett walked away, the officer could not see Puckett's hands, and this caused the officer concern. As Puckett walked away, he passed behind a tree, during which point the officer was unable to see Puckett for what he variously described as "maybe a second" and "a few seconds." The officer explained that the lack of visibility heightened his awareness: "I didn't know if he [Puckett] was concealing a weapon, you know, to hurt us. That's what heightened my awareness at that point."
The officer commanded Puckett to show his hands and to stop. Puckett sped up his walk almost to a run. The officer jumped over the wall and drew his weapon. Puckett then began to run toward the residence. The officer followed Puckett through the door to the residence. When Puckett saw the officer's weapon, he stopped and complied with the officer's commands to lie down on the ground. Puckett was then handcuffed and arrested.
At the conclusion of the presentation of evidence, the trial court instructed the jury with, inter alia, CALCRIM No. 224, concerning circumstantial evidence. The jury convicted Puckett on all counts.
The second matter, case No. KA088442, went to trial the day after the verdict was received in the first case. As Puckett has not raised any issues on appeal that pertain to the evidence presented in this case, we need not set forth the evidence presented. As in the first matter, the jury was instructed with CALCRIM No. 224. Puckett was convicted of second degree robbery.
The trial court sentenced Puckett to 36 years to life in prison for the second degree robbery; two years, concurrent, for the possession of a controlled substance; and 180 days in county jail, with credit for 180 days served, for resisting an officer. Puckett appeals the convictions in both cases.
DISCUSSION
I. Sufficiency of the Evidence to Support Conviction for Resisting an Officer
The legal elements of a violation of section 148, subdivision (a)(1) are that "'"(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."' [Citation.]" (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.) Before a person can be convicted of violating section 148, subdivision (a), there must be proof beyond a reasonable doubt that the officer was acting lawfully at the time the offense was committed. (Garcia v. Superior Court (2009) 177 Cal.App.4th 803, 819.) Puckett challenges his misdemeanor conviction in the first trial for resisting an officer on the ground that the prosecution did not meet its burden to prove that the officer was engaged in the lawful performance of his duties at the time that Puckett resisted because "no evidence was presented of any lawful basis for the officers to detain appellant when they saw him in the courtyard."
A detention occurs within the meaning of the Fourth Amendment when the officer, by means of physical force or show of authority, in some manner temporarily restrains an individual's liberty. (People v. Zamudio (2008) 43 Cal.4th 327, 341.) It is uncontested that the officer was attempting to detain Puckett when he commanded Puckett to stop.
Here, we are aware from the record as a whole that there appears to have been a lawful basis for the officers to detain Puckett because he was a parolee at large. Moreover, Puckett, as a parolee, could reasonably be subjected to warrantless searches as a condition of his parole. (§ 3067, subd. (a) ["Any inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a search warrant and with or without cause"].) Provided that the search was reasonable, Puckett could be searched even in the absence of reasonable suspicion that he was engaged in criminal activity. (Samson v. California (2006) 547 U.S. 843, 852-853; People v. Reyes (1998) 19 Cal.4th 743, 754.) However, because Puckett successfully moved to bar any testimony concerning his parolee status from the jury, this information was not part of the evidence at trial.
At the preliminary hearing, the arresting officer testified that he recognized Puckett as a parolee at large and intended to arrest him.
Crucially, when the defense motion to exclude mention of parole status was addressed prior to trial, the People did not request a stipulation that the officers had a lawful basis to detain Puckett. As a result, the jury learned only that the officer recognized Puckett from a prior briefing, not that the officer had a legal right to detain him such that the officer was acting legally when he detained Puckett.
We requested additional briefing on the question of whether Puckett was precluded from contesting the sufficiency of the evidence against him because he sought to exclude evidence of his parole status. As the court explained in Kessler v. Gray (1978) 77 Cal.App.3d 284, at page 290, "'a party may not object to the sufficiency of the evidence to support a finding against him when the lack is the result of improper exclusion of evidence at his own instance.' [Citation.]" To whatever extent that this principle may be applicable in the criminal context, it is inapposite here, for the exclusion of evidence that Puckett was a parolee was not improper under Evidence Code section 352. The error committed here was not the court's exclusion of the parole status at Puckett's behest; it was the prosecutor's failure to ensure that, when he agreed the objected-to evidence could be excluded, the record would nonetheless be sufficient to allow the jury to conclude that the officer was acting lawfully when he detained Puckett.
--------
Because the jury was neither informed by stipulation that the detention was legal nor presented with evidence that Puckett was subject to detention without cause, we must consider whether the evidence that was presented to the jury demonstrated that the detention was warranted: that is, whether the evidence established a reasonable, articulable suspicion that Puckett had been or was about to be engaged in criminal activity. (Terry v. Ohio (1968) 392 U.S. 1, 21; People v. Wells (2006) 38 Cal.4th 1078, 1083.) It did not. The evidence presented at trial was that Puckett was known to the police from a prior briefing; he was in a high drug area; his hands were not visible; and he walked away when the police summoned him. None of this amounts to reasonable suspicion that Puckett was engaged in criminal activity. Merely being in a known high crime area does not give rise to a reasonable suspicion justifying a warrantless detention. (Illinois v. Wardlow (2000) 528 U.S. 119, 124; People v. Medina (2003) 110 Cal.App.4th 171, 178.) The location therefore is of minimal importance in determining whether the officers had reasonable suspicion to detain Puckett. That Puckett was known to the police from a prior briefing similarly conveys no meaningful information. There are many reasons that a person may be known to law enforcement officers, and without evidence about the nature of the briefing, this fact cannot create a reasonable, articulable suspicion that Puckett was engaged in criminal activity. With respect to Puckett's hands, we understand that a police officer would be concerned that the hands of a person he intended to apprehend were not visible. The fact that a person's hands are not visible to the police, however, does not give rise to a reasonable suspicion that the person was engaged in criminal activity.
Finally, although there is no bright-line rule to assess avoiding a police officer as related to a temporary detention, "[t]here is an appreciable difference between declining to answer a police officer's questions during a street encounter and fleeing at the first sight of a uniformed police officer. Because the latter shows not only unwillingness to partake in questioning but also unwillingness to be observed and possibly identified, it is a much stronger indicator of consciousness of guilt." (People v. Souza (1994) 9 Cal.4th at 224, 234-235.) Thus, "the manner in which a person avoids police contact" may rightly be considered in assessing a reasonable cause for a detention. (Id. at p. 234.) Mere avoidance is insufficient to establish reasonable suspicion. (See People v. Perrusquia (2007) 150 Cal.App.4th 228, 234 [although the defendant attempted to avoid police, no reasonable suspicion existed because "[t]here were no immediately highly suspicious facts such as the flight of a defendant's . . . companions"].) On the other hand, "[h]eadlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such." (Illinois v. Wardlow, supra, 528 U.S. at p. 124.) Here, the evidence showed mere avoidance of police contact rather than headlong flight or bolting at the sight of officers. Puckett did not flee when he saw the police—he merely ignored the first two commands by the police to submit to questioning. Then, Puckett began to walk away from the officer and continued despite further commands to stop. When the officer commanded Puckett to show his hands and to stop, Puckett sped up his walk "almost to a run," but there was no evidence before the jury that Puckett did more than walk away from the police until after the officer drew his weapon, jumped over the wall, and followed him. Puckett's attempt to avoid contact with the officers by walking away, without more, is not sufficient to establish reasonable suspicion for a detention.
Considering the totality of the circumstances to determine whether a particularized and objective basis supports the detention (United States v. Cortez (1981) 449 U.S. 411, 417), the evidence before the jury did not warrant a detention. Being a person known to the police, in a bad neighborhood, and walking away from the police with hands unseen do not create a reasonable and articulable suspicion that one has engaged in or is about to engage in criminal activity. The evidence presented to the jury does not permit a conclusion that the detention was objectively reasonable. (People v. Wells, supra, 38 Cal.4th at p. 1083.)
The People must prove beyond a reasonable doubt every fact necessary to constitute the crime. (In re Winship (1970) 397 U.S. 358, 363-364.) It is "a 'well-established rule that when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed.' [Citation.]" (People v. Cruz (2008) 44 Cal.4th 636, 673.) "Under California law, an officer is not lawfully performing [his or] her duties when [he or] she detains an individual without reasonable suspicion . . . ." (Nuho v. County of San Bernardino (C.D. Cal. 1999) 58 F. Supp.2d 1127, 1134.) Because the jury was not presented with any evidence—whether by testimony or stipulation—that there was a lawful basis for the detention, we are forced to conclude that the prosecution failed to meet its burden to prove that the officer was engaged in the lawful performance of his duties when Puckett resisted the officer's commands and that the misdemeanor conviction for violating section 148, subdivision (a)(1) must be reversed.
II. CALCRIM No. 224
At both trials, the trial court instructed the jury on its consideration of circumstantial evidence using CALCRIM No. 224, which reads as follows: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." (CALCRIM No. 224.)
Puckett contends this instruction violated his Sixth and Fourteenth Amendment rights because it implied that the presumption of innocence and the prosecution's burden to prove facts beyond a reasonable doubt apply only to circumstantial evidence and not to direct evidence. This argument has previously been rejected in People v. Anderson (2007) 152 Cal.App.4th 919 (Anderson). We agree with the Anderson court that this argument requires "misread[ing] the instruction." (Id. at p. 931.)
CALCRIM No. 224 does not define the burden of proof or the presumption of innocence; these are defined elsewhere, including in CALCRIM No. 220. CALCRIM No. 224 and CALCRIM No. 223 explain the difference between direct and circumstantial evidence and "'clarify the application of the general doctrine requiring proof beyond a reasonable doubt to a case in which the defendant's guilt must be inferred from a pattern of incriminating circumstances. [Citations.]' [Citation.]" (People v. Solomon (2010) 49 Cal.4th 792, 826 [construing substantially similar pattern jury instructions CALJIC Nos. 2.01 and 2.02].) "[T]he question addressed by CALCRIM No. 224 is not how to consider the evidence as a whole but how to consider specific circumstantial evidence. The instruction concerns whether a necessary fact may reasonably be inferred from circumstantial evidence when that evidence can be construed in a way that points to the defendant's innocence, not whether the evidence as a whole may reasonably be construed to point to the defendant's innocence." (Anderson, supra, 152 Cal.App.4th at p. 932.)
When read together with CALCRIM Nos. 220, 222 and 223, all of which were given here, CALCRIM No. 224 benefits the defendant by reinforcing both the requirement that the People prove each fact essential to a finding of guilt beyond a reasonable doubt and the requirement that the jury may not "rely on circumstantial evidence to find the defendant guilty unless the only reasonable conclusion to be drawn from it points to the defendant's guilt." (Anderson, supra, 152 Cal.App.4th at p. 931.) The trial court did not err in instructing the jury with CALCRIM No. 224.
DISPOSITION
The conviction in case No. KA088914 for violation of Penal Code section 148, subdivision (a)(1) is reversed for insufficient evidence. In all other respects, the judgment is affirmed.
ZELON, J. We concur:
PERLUSS, P. J.
JACKSON, J.