In re A.R. CA4/2

Opinion

Filed 7/18/22 In re A.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re A.R., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, E077812 Plaintiff and Respondent, (Super.Ct.No. J285771) v. OPINION A.R.,

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Susan Slater,

Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Rachel Varnell, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Assistant Attorney General,

Daniel Rogers and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff and

Respondent.

1 Defendant A.R., a minor, appeals from an order of nonwardship probation (Welf.

& Inst. Code, § 725, subd. (a)), which was based on a finding that he resisted, delayed, or

obstructed a peace officer in violation of subdivision (a)(1) of Penal Code section 148.

A.R. challenges the sufficiency of the evidence and argues the deputy was not engaged in

the lawful performance of his duties at the time of the incident because he lacked

probable cause and statutory authority to make an arrest and used excessive force. We

affirm.

BACKGROUND

On April 18, 2020, San Bernardino County Sheriff’s Deputy Kevin Nguyen was

dispatched to a liquor store in a strip mall in the city of Adelanto in response to a

complaint of people loitering in the parking lot. When Nguyen, who was in uniform and

driving a marked patrol vehicle, pulled into the parking lot, he was flagged down by a

woman who pointed at A.R., who was standing six to eight feet away, and said he had

assaulted her son. A.R. turned and began walking away, and Nguyen followed in his

vehicle and called out to A.R. through the open car window to stop and come talk to him.

A.R. turned to look at Nguyen and then continued walking away, tossing an unknown

object into a trash can. Nguyen told A.R. to stop and place his hands on the hood of the

patrol car. A.R. responded, “‘For what?’” He told Nguyen he had done nothing wrong

and continued walking away. Nguyen exited his vehicle, grabbed A.R. by the wrist, and

told him to place his hands behind his back. A.R. did not comply, pulled away from

Nguyen, and attempted to flee toward the front of the vehicle. Nguyen attempted to use

2 his body weight to push A.R. against the vehicle to get control of his hands. A.R. broke

free of Nguyen’s grasp and swung his elbow back towards Nguyen’s head. Nguyen

attempted to take A.R. down to the ground but lost his balance, got back up, and then

brought A.R. to the ground. As Nguyen straddled him, A.R. continued to resist, grabbing

Nguyen’s wrists and lifting his hips and body upwards, so Nguyen delivered two strikes

to A.R.’s face to gain compliance. A.R. then said he was done, and Nguyen told him to

place his hands behind his back. A.R. said, “okay,” and Nguyen handcuffed him and

waited for backup to arrive. By that time, the woman who had flagged down Nguyen to

report the assault was gone.

Nguyen cited A.R. for resisting a peace officer, and a petition was filed pursuant

to subdivision (a) of Welfare and Institutions Code section 602. Part of the altercation

between Nguyen and A.R. was captured by three different security cameras, and three

short video clips were admitted into evidence and reviewed by the juvenile court. The

court found true the allegation that A.R. had violated subdivision (a)(1) of Penal Code

section 148, and A.R. was placed on summary probation for six months.

DISCUSSION

A.R. argues there is insufficient evidence to support the juvenile court’s finding of

a violation of Penal Code section 148, subdivision (a)(1). “We therefore review the facts

in a light most favorable to the finding, and presume all facts reasonably deduced from

the record, to see if the finding of the juvenile court is supported by substantial evidence.

[Citation.] Although this is a juvenile case, our review is governed by the same standards

3 that apply to adult criminal appeals. [Citation.]” (In re R.W. (2018) 24 Cal.App.5th 145,

148.)

“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” has committed a misdemeanor. (Pen. Code, § 148, subd. (a)(1).) “The

legal elements of that crime 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.”’ [Citation.]” (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895

(Yount).) “The lawfulness of the officer’s conduct is an essential element of the offense

of resisting, delaying, or obstructing a peace officer.” (In re Chase C. (2015) 243

Cal.App.4th 107, 115.)

A.R. first asserts that Nguyen lacked statutory authority to arrest A.R. for assault

based on the information provided by the woman who flagged down Nguyen in the

parking lot, and because the arrest was unlawful, A.R. cannot be convicted of resisting a

peace officer. Relying on Penal Code section 836, which allows a warrantless arrest for a

misdemeanor only if it was committed in the officer’s presence, A.R. argues the arrest

lacked statutory authority because no assault was committed in Nguyen’s presence and

Nguyen did not testify that he had any information that would have elevated a simple

misdemeanor assault to a felony. The argument fails because subdivision (a) of Welfare

4 and Institutions Code section 625 allows law enforcement officers to make warrantless

arrests of juveniles for misdemeanor offenses without having to satisfy the “‘in the

presence’” requirement of Penal Code section 836. (In re Samuel V. (1990) 225

Cal.App.3d 511, 516; In re Gregory S. (1980) 112 Cal.App.3d 764, 772 & fn. 2 (Gregory

S.).)

A.R. also argues that Nguyen lacked probable cause to arrest him for assault,

because the woman who accused A.R. of assaulting her son did not state that she had

witnessed the assault herself and Nguyen had not interviewed her son, who was the

alleged victim of the assault. The argument fails because “Penal Code section 148,

subdivision (a)(1) is unlike the law of many states in that it is not limited to a defendant’s

conduct in resisting arrest but extends to a defendant’s resistance of an officer in the

discharge or attempted discharge of any duty of his or her office.” (Yount, supra, 43

Cal.4th at p. 894.) Nguyen did not testify that he was attempting to arrest A.R. for

assault, nor did he claim to have probable cause for such an arrest. Rather, he testified

that he had reasonable suspicion, based on the woman’s identification of A.R. as the

perpetrator of an assault, to detain him to prevent him from fleeing the area and to

question him. “A detention is reasonable under the Fourth Amendment when the

detaining officer can point to specific articulable facts that, considered in light of the

totality of the circumstances, provide some objective manifestation that the person

detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224,

231.) The woman’s identification of A.R. as the person who had just assaulted her son,

5 coupled with the fact that A.R. turned and began walking away from Nguyen when the

woman pointed him out, gave Nguyen reasonable suspicion to conduct an investigative

detention. (See People v. Lloyd (1992) 4 Cal.App.4th 724, 733-734 [reasonable

suspicion to stop and detain defendant where he was observed standing next to business

in which a silent alarm had just been triggered and began walking away upon seeing

police].) When he first told A.R. to stop and talk with him, Nguyen had reasonable

suspicion to detain and question A.R., and Nguyen’s observation of A.R.’s subsequent

attempts to flee and to resist his lawful investigative detention provided probable cause to

arrest A.R. for violating Penal Code section 148. (Gregory S., supra, 112 Cal.App.3d at

p. 778; People v. Allen (1980) 109 Cal.App.3d 981, 987; In re Andre P. (1991) 226

Cal.App.3d 1164, 1169.)

A.R. does not deny that Nguyen had reasonable suspicion to detain and question

him. Instead, A.R. contends the initial detention was transformed into a de facto arrest

without probable cause when Nguyen grabbed him by the wrist. “When the detention

exceeds the boundaries of a permissible investigative stop, the detention becomes a de

facto arrest requiring probable cause. [Citation.]” (In re Carlos M. (1990) 220

Cal.App.3d 372, 384 (Carlos M.).) A de facto arrest may result where “the restraint

employed by the police goes beyond that which is reasonably necessary for a detention.”

(People v. Campbell (1981) 118 Cal.App.3d 588, 595-596 (Campbell).) A.R. cites two

cases in which handcuffing a suspect was deemed excessive restraint under the

circumstances, thereby converting an investigative detention into a de facto arrest, to

6 argue that Nguyen’s grabbing A.R. by the wrist and commanding him to place his hands

behind his back similarly imposed excessive restraint. In In re Antonio B. (2008) 166

Cal.App.4th 435, 442 (Antonio B.) the defendant was detained for walking next to

another teenager who was smoking marijuana, on suspicion that he might also have

partaken. The officers outnumbered the two juveniles, neither of whom resisted or

attempted to flee, and there was nobody else nearby. The arresting officer gave no

rationale necessitating the use of handcuffs apart from stating that it was his policy to

handcuff any detained suspect regardless of the circumstances. Antonio B. expressly

distinguished cases finding no de facto arrest where detained “suspects were handcuffed

when there was a concern that they would flee . . . or when the suspect refused to obey

the officer’s commands.” (Id. at pp. 441-442.) In Campbell, supra, 118 Cal.App.3d at

pp. 595-597, the court held that detaining the defendant at gunpoint and conducting a

patdown search for weapons was not a de facto arrest but that after the defendant was

confirmed to be unarmed, was cooperative, and answered officers’ questions,

handcuffing him and transporting him to another location “exceeded a reasonable

detention under the circumstances in that there was not an increasing degree of

justification for the increasing degree of intrusion.” (Id. at p. 597; but see Carlos M.,

supra, 220 Cal.App.3d at p. 385 & fn. 7.)

Neither case resembles the circumstances presented here. Nguyen was

investigating a report that A.R. had just committed an assault. The video evidence shows

the encounter took place in a busy commercial strip mall with numerous bystanders.

7 A.R. failed to comply with Nguyen’s request to stop, walking away and throwing an

unknown object into the trash—behavior that, based on Nguyen’s experience, indicated

that A.R. might try to flee and that a patdown search for weapons should be conducted.

Only after A.R. refused Nguyen’s order to stop and place his hands on the hood of the

vehicle did Nguyen exit his vehicle, grab A.R.’s wrist, and tell him to place his hands

behind his back. We cannot agree that the degree of restraint employed by Nguyen

exceeded that which was reasonably necessary for an investigative detention under the

circumstances. (See Gregory S., supra, 112 Cal.App.3d at p. 778 [officer’s “action in

holding appellant’s arm to prevent his departure was within his authority to detain”];

People v. Celis (2004) 33 Cal.4th 667, 675-676 [no de facto arrest where risk of flight

and officer safety justified stopping defendant at gunpoint, handcuffing him, and making

him sit on the ground during brief protective sweep of house]; People v. Turner (2013)

219 Cal.App.4th 151, 170-171 [ordering defendant to the ground at gunpoint,

handcuffing him, and checking for weapons were reasonably necessary for safety and did

not result in de facto arrest].)

Finally, A.R. argues that the arrest was illegal because Nguyen used excessive

force. He claims that the surveillance videos show him being tackled to the ground and

punched while he is not resisting and poses no threat to Nguyen. We disagree with that

characterization of the video evidence. Nguyen testified that even after he had

successfully taken A.R. to the ground and was straddling his torso, A.R. still refused to

put his hands behind his back, was instead grabbing Nguyen’s wrists or shirt cuffs, and

8 was moving his hips and body upward attempting to dislodge the deputy. Nguyen,

fearing he was going to be tossed off of A.R., delivered two strikes “to gain compliance

to put his hands behind his back.” That testimony is corroborated by the video, in which

A.R. can be seen grabbing both of Nguyen’s wrists as the deputy attempts to hold him

down and straddle him, Nguyen manages to free his right hand from A.R.’s left and

delivers two quick blows while A.R. continues to hold Nguyen’s left wrist, only releasing

his grip on the deputy some six seconds after having been struck.

Even if we did agree that Nguyen used excessive force, the uncontroverted

evidence demonstrates that A.R. committed the charged offense before he was taken

down and struck by Nguyen. Nguyen was conducting a lawful detention when he

ordered A.R. to put his hands behind his back, and the video evidence shows A.R.

escaping from Nguyen’s grasp and moving away with his arms extended down at his

sides, as A.R. concedes, before Nguyen takes him down. As the juvenile court

concluded, even before force was used, “the defendant had already willfully resisted the

officer by not putting his hands behind his back, not giving him his wrists.” To the extent

A.R. argues that excessive force used by police in response to a defendant’s resistance

renders the arrest unlawful or retroactively excuses the violation of Penal Code

section 148, he is incorrect. “If a defendant delays, obstructs, or resists a police officer

who is engaged in the lawful performance of his or her duties, the defendant may be

convicted of violating section 148[, subdivision ](a)(1) even if the officer uses excessive

9 force subsequent to the completed violation.” (People v. Williams (2018) 26 Cal.App.5th

71, 74; accord Yount, supra, 43 Cal.4th at p. 899.)

In sum, substantial evidence supports the juvenile court’s finding beyond a

reasonable doubt that A.R. violated subdivision (a)(1) of Penal Code section 148.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MENETREZ J. We concur:

MILLER Acting P. J.

RAPHAEL J.