Filed 12/26/14 P. v. Sanchez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THE PEOPLE,
Plaintiff and Respondent, E058674
v. (Super.Ct.No. SWF1203161)
ENRIQUE SALINAS SANCHEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Michael J. Rushton,
Judge. Affirmed.
Thomas E. Robertson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Anthony Da Silva and Randall
D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
A jury found defendant and appellant Enrique Salinas Sanchez guilty as charged
of forcibly resisting arrest (Pen. Code, § 69)1 and possessing methamphetamine (Health
& Saf. Code, § 11377, subd. (a)). In a bifurcated proceeding, defendant admitted having
five prison priors (§ 667.5, subd.(b)), and three prior strike offenses (§ 667, subds. (c),
(e)(2)(A)). Defendant was sentenced to 11 years in prison: six years (the middle term,
doubled) on the forcibly resisting arrest conviction, plus five years for each prison prior.
On this appeal, defendant claims (1) the trial court erroneously denied his motion
for acquittal (§ 1118.1) on the resisting arrest charge, and (2) insufficient evidence
supports his conviction for forcibly resisting arrest.2 We conclude the motion for
acquittal was properly denied and substantial evidence supports the conviction. We
therefore affirm the judgment.3
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 In his opening brief, defendant requested an independent review of the sealed record of the trial court’s in camera review of the arresting officer’s file under Pitchess v. Superior Court (1974) 11 Cal.3d 531. Defendant has since withdrawn this request.
3 In case No. E060592, defendant has petitioned this court for a writ of habeas corpus, claiming his admission of the first of the five alleged prison priors was a product of the ineffective assistance of his counsel, and his 11-year sentence must therefore be reduced by one year, the term imposed on the defective prison prior. The Attorney General concedes the petition has merit because the first alleged prison prior could not be proved. We have considered the writ petition with this appeal and also agree it has merit. By a separate order in the writ proceeding, we grant the relief requested in the petition and reduce defendant’s 11-year sentence by one year, to 10 years.
2 II. PROCEDURAL BACKGROUND
A. Prosecution Evidence
Around 4:45 p.m. on September 3, 2012, Riverside County Sheriff’s Department
Deputy Raul Ochoa was patrolling a rural two-lane road in a high crime area when he
noticed a red Mitsubishi car parked on the side of the road. A woman was standing by
the driver’s side, and defendant was standing by the passenger side. The deputy parked
his patrol vehicle parallel to the car, got out of the patrol car, and approached the woman.
After asking her something like, “how is it going, what’s going on,” the deputy patted the
woman down for weapons. As the deputy was searching the woman for weapons,
defendant walked to the rear of the car and opened the trunk.
Deputy Ochoa became nervous, and met defendant at the rear of the car just as he
was opening the trunk. The deputy did not see any weapons inside the trunk, and asked
defendant whether he was on probation or parole. Defendant did not respond and started
to run. As he ran past the deputy, he looked over his shoulder and reached for the front
of his waistband. The deputy struck defendant in the face with his fist and ordered him to
show his hands. Defendant swung back with his fist, but missed, fell forward, and landed
on his stomach with his hands underneath him. The deputy fell on top of defendant,
positioned his weight towards defendant’s upper left shoulder, and ordered defendant to
show his hands, but defendant continued reaching towards his waistband, with his hands
still underneath his body. The deputy struck defendant in the upper jaw area two or three
times with his fist.
3 As defendant continued reaching for his waistband, Deputy Ochoa pulled out his
Taser gun and tased defendant in the lower back, but the shot was ineffective because one
of the darts failed to deploy. As the deputy attempted to reload his Taser gun, defendant
rolled over onto his side, removed two items from his person, threw them to the side, and
rolled back onto his stomach. The deputy tased defendant again, and this time the
deployment was successful. After the taser completed its cycle, defendant complied with
the deputy’s order to show his hands.
After handcuffing defendant, Deputy Ochoa recovered the items defendant had
discarded—a small plastic baggie containing a crystalline substance and an eyeglass case
holding a hypodermic needle. A laboratory test determined the crystalline substance in
the baggie was 1.55 grams of methamphetamine.
B. Defense Evidence
Defendant testified he had been arguing with his girlfriend all day at her house on
September 3, 2012. As she was driving him home, they continued to argue in the car. He
asked her to pull over so he could get his bike from the trunk and ride it the rest of the
way home. When she pulled over onto a dirt road, he got out and walked to the trunk.
He unhooked a bungee cord and opened the trunk.
As he began gathering his backpack and extra clothing, his girlfriend told him the
police were there. He did not believe her until he heard a voice asking, “What are you
guys doing?” He walked towards the rear light of the driver’s side and observed Deputy
Ochoa searching his girlfriend. He did not hear his girlfriend consent to the patdown.
4 Deputy Ochoa then noticed defendant and told him, “Hey, get out of the trunk.” As the
deputy continued to search his girlfriend, defendant walked back to the trunk to hook the
bungee cord onto the trunk because he believed the deputy was going to let them leave.
Defendant saw the bungee cord on the ground and was going to pick it up when
Deputy Ochoa asked him whether he was on probation or parole. He did not respond,
and instead reached inside his pocket to pull out his eyeglass case. He remembered he
had a syringe inside the case and wanted to get rid of it because he was on probation.
As he placed his hand inside his pocket, Deputy Ochoa hit him in the back of his
head, knocking him to the ground. The deputy placed his knee on defendant’s lower
back, continued to punch him in the head and back area, and ordered him to show his
hands. Defendant denied he ever swung at the deputy. The deputy repeatedly
commanded defendant to show his hands, but his hands were underneath his body and he
was trying to remove his eyeglass case from his pocket. Defendant lost consciousness for
a few seconds, then the deputy shot him with a Taser. Defendant admitted the eyeglass
case with the syringe in it belonged to him, but denied the plastic baggie containing
methamphetamine was his or that he dropped it on the ground.
C. Motion for Acquittal
At the close of the evidence, including the defense case, defendant made a motion
for acquittal (§ 1118.1) on the forcibly resisting arrest charge, claiming there was
insufficient evidence to support it because no reasonable jury could believe Deputy
Ochoa did not use excessive force in arresting defendant. The claim was based on
5 claimed inconsistencies in Deputy Ochoa’s testimony regarding how many times
defendant attempted to strike him, and how many times he struck defendant. Based on
the inconsistencies in the deputy’s testimony, defense counsel argued no reasonable jury
could believe he did not use excessive force.
The court deemed the motion timely.4 Without considering any defense evidence,
the court found the prosecution presented substantial evidence to support each element of
the offense and denied the motion. The court found Deputy Ochoa credible and noted
any inconsistencies in his testimony were subject to cross-examination and did not
undermine his testimony supporting the charge. The jury subsequently found defendant
guilty as charged of forcibly resisting an officer (Pen. Code, § 69) and possessing
methamphetamine (Health & Saf. Code, § 11377, subd. (a)).
III. DISCUSSION
A. The Motion for Acquittal Was Properly Denied
Defendant claims his motion for acquittal (§ 1118.1) on the charge of forcibly
resisting arrest (§ 69) was erroneously denied because the prosecution presented
insufficient evidence that Deputy Ochoa was performing his duties in a lawful manner
when he asked defendant whether he was on probation or parole. Defendant argues
Deputy Ochoa used an accusatory tone in asking defendant whether he was on probation
4The prosecutor agreed the motion could be deemed timely because defense counsel made the motion at sidebar at the close of the prosecution’s case.
6 or parole, and this indicated to a reasonable person in defendant’s position that defendant
was not free to end the encounter with the deputy, and leave.5
We conclude the motion was properly denied. Through the testimony of Deputy
Ochoa, the prosecution made a prima facie showing that defendant was not being
detained, and was free to end the encounter and leave, when Deputy Ochoa asked
defendant whether he was on probation or parole.
1. Standard of Review
“‘“The standard applied by a trial court in ruling upon a motion for judgment of
acquittal pursuant to section 1118.1 is the same as the standard applied by an appellate
court in reviewing the sufficiency of the evidence to support a conviction, that is,
‘whether from the evidence, including all reasonable inferences to be drawn therefrom,
there is any substantial evidence of the existence of each element of the offense
charged.’” [Citation.] “The purpose of a motion under section 1118.1 is to weed out as
soon as possible those few instances in which the prosecution fails to make even a prima
facie case.” [Citations.] The question “is simply whether the prosecution has presented
sufficient evidence to present the matter to the jury for its determination.” [Citation.]
5 This was not the basis of the motion for acquittal. (§ 1181.1.) Indeed, whether the deputy used an accusatory tone and therefore unlawfully detained defendant in asking him whether he was on probation or parole was never raised below. And as indicated, in moving for acquittal on the forcibly resisting arrest charge, the defense argued Deputy Ochoa was not performing his duties in a lawful manner because no reasonable juror could believe he did not use excessive force in arresting defendant, not because he unlawfully detained defendant by using an accusatory tone in asking defendant whether he was on probation or parole. The People do not claim the issue has been forfeited, and we exercise our discretion to consider it on its merits. (§ 1259.)
7 The sufficiency of the evidence is tested at the point the motion is made. [Citations.]
The question is one of law, subject to independent review.’ [Citation.]” (People v.
Maciel (2013) 57 Cal.4th 482, 522.)
2. Analysis
“[S]ection 69 ‘sets forth two separate ways in which an offense can be committed.
The first is attempting by threats or violence to deter or prevent an officer from
performing a duty imposed by law; the second is resisting by force or violence an officer
in the performance of his or her duty.’” (People v. Smith (2013) 57 Cal.4th 232, 240,
quoting In re Manuel G. (1997) 16 Cal.4th 805, 814 (Manuel G.).) Here, we are
concerned with forcibly resisting arrest, the second type of offense under section 69.
To prove a defendant forcibly resisted arrest, the prosecution must show the
arresting officer was lawfully performing his duty when the resistance of force occurred.
(People v. Smith, supra, 57 Cal.4th at p. 241, citing Manuel G., supra, 16 Cal.4th at p.
815 [“a defendant cannot be convicted of an offense against a peace officer ‘“engaged in
. . . the performance of . . . [his or her] duties’” unless the officer was acting lawfully at
the time the offense against the officer was committed”].)
Unreasonable searches and seizures by state law enforcement officers are unlawful
under the Fourth and Fourteenth Amendments. (U.S. Const., 4th & 14th Amends.; Mapp
v. Ohio (1961) 367 U.S. 643, 655.) A person is seized within the meaning of the Fourth
Amendment “when [an] officer, by means of physical force or show of authority, has in
some way restrained the liberty of a citizen . . . .” (Florida v. Bostick (1991) 501 U.S.
8 429, 434 (Bostick).) Circumstances that might indicate a seizure include “the presence of
several officers, an officer’s display of a weapon, some physical touching of the person,
or the use of language or of a tone of voice indicating that compliance with the officer’s
request might be compelled.” (Manuel G., supra, 16 Cal.4th at p. 821.) Unless the
officer has a reasonable suspicion—justified by specific and articulable facts—that a
person has committed a crime or is about to commit a crime, the detention is unlawful.
(Terry v. Ohio (1968) 392 U.S. 1, 21; Manuel G., supra, at p. 821.)
Unlike a detention, a consensual encounter between a law enforcement officer and
a citizen does not trigger Fourth Amendment scrutiny. (United States v. Mendenhall
(1980) 446 U.S. 544, 554.) It is well-established that an officer can approach an
individual on a street or in another public place and converse with them—without any
objective justification. (Bostick, supra, 501 U.S. at p. 434; Wilson v. Superior Court
(1983) 34 Cal.3d 777, 784 (Wilson).) In determining whether a consensual encounter
rises to the level of a detention, “a court must consider all the circumstances surrounding
the encounter to determine whether the police conduct would have communicated to a
reasonable person that the person was not free to decline the officers’ requests or
otherwise terminate the encounter.” (Bostick, supra, at p. 439; Manuel G., supra, 16
Cal.4th at p. 821.)
Defendant claims Deputy Ochoa’s question about his probation or parole status
was so accusatory in tone that a reasonable person in defendant’s position would not have
felt free to terminate the encounter. To be sure, it is well-settled that “the use of language
9 or tone of voice” might indicate to a defendant that “compliance with the officer’s request
might be compelled.” (United States v. Mendenhall, supra, 446 U.S. at p. 554; Manuel
G., supra, 16 Cal.4th at p. 821.) Hence, questions that are sufficiently accusatory in
nature can constitute a coercive show of police authority, transforming an encounter into
a detention. (See Wilson, supra, 34 Cal.3d at pp. 790-791.)
In Wilson, an undercover officer was monitoring incoming flights at the Los
Angeles International Airport for the illegal transportation of narcotics. (Wilson, supra,
34 Cal.3d at p. 780.) During his surveillance, the officer noticed Wilson arriving from a
flight from Miami. (Ibid.) The officer followed Wilson through the terminal and
approached him as he stood next to his car parked at the curb. (Id. at pp. 780-781.) After
identifying himself as a police officer, he informed Wilson that he was conducting an
investigation and had received information that Wilson would be “‘carrying a lot of
drugs.’” (Id. at p. 781.) The court concluded that Wilson was detained at that point,
because “in such a situation, an ordinary citizen, confronted by a narcotics agent who has
just told him that he has information that the citizen is carrying a lot of drugs, would not
feel at liberty simply to walk away from the officer. (Id. at p. 790.)
The Wilson court reasoned: “Before [the officer] made that statement, Wilson
might well have thought that the officer was simply pursuing routine, general
investigatory activities, and might reasonably have felt free to explain to the officer that
he . . . did not have the time—or, perhaps, the inclination—to answer the officer’s
questions or to comply with his request for permission to search. [But] [o]nce the officer
10 advised Wilson that he had information that Wilson was carrying a lot of drugs, the entire
complexion of the encounter changed and Wilson could not help but understand that at
that point he was the focus of the officer’s particularized suspicion.” (Wilson, supra, 34
Cal.3d at pp. 790-791.)
The present case is distinguishable from Wilson, where the officer specifically
accused Wilson of transporting a large amount of narcotics. (Wilson, supra, 34 Cal.3d at
pp. 780-781.) Unlike the officer in Wilson, Deputy Ochoa did not do anything to convey
to defendant that he was the focus of any particularized suspicion or that he was not free
to leave. Deputy Ochoa was not attempting to uncover any specific criminal conduct.
Nor did he accuse defendant of committing a crime. Rather, he simply asked defendant
whether he was on probation or parole. Though defendant argues the question was
accusatory in nature and tone, a question about a defendant’s probation or parole status
does not transform an encounter into a detention without a showing the deputy exhibited
physical force or coercive police authority. (See California v. Hodari D. (1991) 499 U.S.
621, 625-626.)
Viewed in the light most favorable to the prosecution, the evidence at the close of
the prosecution’s case-in-chief depicted what began as a consensual encounter between
Deputy Ochoa and defendant. This was not a traffic stop. Deputy Ochoa noticed a car
parked on the side of a rural road with defendant and his girlfriend standing alongside it.
He parked his patrol vehicle parallel to the car, and did not block their path with his
vehicle or activate his lights or siren. His approach toward defendant’s girlfriend was not
11 rushed or hurried. He said something to the effect of, “how is it going, what’s going on,”
and then asked her consent to conduct a patdown search of her for weapons.
Though defendant argues the patdown search of his girlfriend demonstrated a
show of authority over defendant, there is no evidence to suggest any coercive conduct
accompanied the patdown. Deputy Ochoa did not draw any weapons nor was he
accompanied by other officers. In addition, defendant’s freedom of movement was never
restrained during the patdown of his girlfriend. While Deputy Ochoa was patting down
the girlfriend on the driver’s side of the car, defendant walked from the passenger side to
the trunk. Then, when Deputy Ochoa followed defendant to the rear of the car, defendant
opened the trunk. These movements indicate Deputy Ochoa made no show of physical
force or show of authority restraining defendant’s liberty.
Deputy Ochoa testified that after defendant walked to the rear of the car and
opened the trunk, he became nervous for his safety and at that point asked defendant
whether he was on probation or parole. United States Supreme Court cases “make it
clear that a seizure does not occur simply because a police officer approaches an
individual and asks a few questions. So long as a reasonable person would feel free ‘to
disregard the police and go about his business,’ [citation], the encounter is consensual
and no reasonable suspicion is required. . . . ‘Only when the officer, by means of physical
force or a show of authority, has in some way restrained the liberty of a [person] may we
conclude that a “seizure” has occurred.’” (Bostick, supra, 501 U.S. at p. 434.) “[A]s
long as the police do not convey a message that compliance with their requests is
12 required,” the encounter does not implicate the Fourth Amendment. (Bostick, supra, at p.
435.)
Nor does police questioning, unaccompanied by a show of physical or verbal
force, constitute an involuntary detention, even if the questioning concerns the person’s
probation or parole status. (People v. Bennett (1998) 68 Cal.App.4th 396, 401-402
(Bennett).) Indeed, police officers may approach individuals whom they have no reason
to suspect of having committed or are committing a crime, and ask them potentially
incriminating questions. (Bostick, supra, 501 U.S. at p. 439; see I.N.S. v. Delgado (1984)
466 U.S. 210, 216 [“interrogation relating to one’s identity or a request for identification
by the police does not, by itself, constitute a Fourth Amendment seizure.”].)
The present case resembles the “classic consensual encounter” found in Bennett.
(Bennett, supra, 68 Cal.App.4th at p. 401.) In Bennett, an officer noticed the defendant
speaking with a prostitute and approached him, asking, “‘Can I talk to you for a
moment?’” to which Bennett replied, “‘Yes.’” (Id. at p. 399.) The officer remembered
Bennett from a previous contact and asked him if he was still on parole. (Ibid.) When
Bennett replied he was, the officer asked him if he would be willing to wait while he ran
his name for warrants, to which the defendant again replied, “‘Yes.’” (Ibid.) When the
warrant check revealed Bennett had violated parole, he was placed under arrest. (Ibid.)
The Court of Appeal held the officer’s initial contact was a “classic consensual
encounter” which did not implicate the Fourth Amendment because “nothing was done to
restrain Bennett’s liberty in any way.” (Bennett, supra, at pp. 402-403.) The tone of the
13 conversation was calm, and Bennett was cooperative: “No physical force was required or
threatened; no handcuffs or other restraints were applied.” (Id. at p. 399.)
Similarly here, Deputy Ochoa did not use any words, gestures, or other coercive
conduct to detain defendant before asking him if he was on probation or parole: there
was no shouting, no use or display of any weapons, and no physical restraint of
defendant. Deputy Ochoa did not run towards defendant, block his path, or demand that
he do anything. Simply put, Deputy Ochoa did nothing more than ask defendant whether
he was on probation or parole. Hence, up to this point, a reasonable person in
defendant’s position would have believed Deputy Ochoa was “simply pursuing routine,
general investigatory activities” (Wilson, supra, 34 Cal.3d at p. 790), and like the
defendant in Bennett, defendant was not obligated to answer the deputy’s question and
was free to terminate the consensual encounter.
Defendant urges a contrary conclusion. He relies on People v. Garry (2007) 156
Cal.App.4th 1100, where a uniformed officer was patrolling a high crime area around
midnight when he noticed the defendant standing next to a parked car. (Id. at pp. 1103-
1104.) The officer turned on his patrol car’s spotlight, emitting a white light and
illuminating Garry. (Id. at p. 1104.) The officer then exited his vehicle and walked
briskly towards Garry. Looking nervous, Garry began walking backwards and stated,
“‘“I live right there,”’” pointing to a nearby house. The officer continued to walk
towards Garry saying, “‘Okay, I just want to confirm that,’” and then asked him if he was
on probation or parole. (Ibid.)
14 The Court of Appeal in Garry concluded the officer’s actions, taken as a whole,
constituted a detention. (People v. Garry, supra, 156 Cal.App.4th at p. 1111.) In so
concluding, the court emphasized the importance of an officer’s “words and verbal
tones,” “how the officers physically approach[] their subjects,” and whether the use of the
spotlight constituted a “show of authority.” (Id. at pp. 1110-1112.) The officer “bathed
defendant in light, exited his police vehicle, and, armed and in uniform, ‘briskly’ walked
35 feet in ‘two and a half, three seconds’ directly to [the defendant] while questioning
him about his legal status.” (Id. at p. 1111.) In light of these circumstances, the officer’s
conduct “constituted a show of authority so intimidating as to communicate to any
reasonable person that he or she was ‘“not free to decline [his] requests or otherwise
terminate the encounter.”’” (Id. at p. 1112.)
The situation here is markedly different from Garry. There was nothing
intimidating about Deputy Ochoa’s method of approaching defendant. Unlike the officer
in Garry, Deputy Ochoa did not shine a spotlight on defendant, nor did he “all but r[u]n
directly at” defendant and immediately ask him if he was on probation or parole—facts
the Garry court found dispositive in determining the initial encounter was a detention.
(People v. Garry, supra, 156 Cal.App.4th at pp. 1111-1112.)
To the contrary, Deputy Ochoa initiated the contact with defendant’s girlfriend by
saying something to the effect of, “how is it going, what’s going on.” He was not
accompanied by any other officers. Nor did he display his weapon or apply any physical
force. Defendant nevertheless argues Deputy Ochoa displayed an even greater show of
15 authority than the officer in Garry because Deputy Ochoa conducted a patdown of his
girlfriend and then, without seeking defendant’s consent to have a conversation with him,
immediately questioned defendant about his probation or parole status. But as explained,
viewed in the light most favorable to the prosecution, the deputy’s patdown of
defendant’s girlfriend was consensual. And the fact the deputy asked defendant about his
legal status without requesting his consent to converse did not transform the encounter
into a detention. “[I]t is generally understood that ‘“[t]here is nothing in the Constitution
which prevents a police [officer] from addressing questions to anyone on the
streets,” . . .’” (Bennett, supra, 68 Cal.App.4th at pp. 401-402.)
Defendant also relies on a number of out-of-state cases involving circumstances in
which accusatory questioning alone constituted a detention. In J.G., a field inquiry was
transformed into a detention when an officer asked the defendant “if there was ‘anything
on him that he shouldn’t have.’” (State ex rel. J.G. (1999) 320 N.J. Super. 21, 31 [726
A.2d 948, 953].) Because the officer’s inquiry presupposed criminal activity, the court
found it effectuated an awareness in the defendant that “he was the subject of a
particularized investigation.” (Ibid.) In Alverez, a detention occurred when two officers
waited for the defendant, approached him, then accused him of two illegal acts: drug
trafficking and not having car insurance. (State v. Alverez (Utah 2006) 147 P.3d 425,
429-430.) The “accusatory nature of the questions and the context in which they were
asked demonstrated a ‘show of authority’ sufficient to restrain [d]efendant’s freedom of
movement. [Citation.]” (Id. at p. 432.)
16 Similarly, in Jason L., a detention occurred when two officers approached the
defendant and his companion in their patrol vehicle, commanded them to come towards
the officers, and asked them twice if they were armed. (State v. Jason L. (2000) 129
N.M. 119, 122 [2 P.3d 856, 859].) The court concluded a reasonable person in the
defendant’s position would not have felt free to leave after being asked a second time
about weapons possession. (Id. at p. 863.) Lastly, in Pitts, the defendant was detained
after two officers followed him for a substantial distance, searched his taxi, and then
questioned him about possession of weapons and drugs. (State v. Pitts (2009) 186 Vt. 71,
74-75 [978 A.2d 14, 17-18].) The court explained: “[T]hese circumstances . . . are
precisely the kind which courts have characterized as a particularized inquiry into
criminal activity which the average person would not have felt free to disregard or
terminate.” (Id. at p. 22.)
These out-of-state cases are factually distinguishable from the present case and, in
any event, not binding on this court. (See Episcopal Church Cases (2009) 45 Cal.4th
467, 490.) Each case involved circumstances in which an officer’s questioning was
accusatory in nature because the particularized inquiry presupposed the defendant was
engaging in criminal activity. Indeed, as defendant recognizes, “courts throughout the
country have ruled that a field inquiry becomes a Terry stop [i.e., a detention] upon
‘unsupported outright accusations of criminal activity.’ [Citations.]” (State ex rel. J.G.,
supra, 726 A.2d at p. 953.) But here, Deputy Ochoa did not accuse defendant of any
crime; he asked defendant whether he was on probation or parole, and merely asking
17 whether a person is on probation or parole does not in and of itself constitute an
“unsupported outright accusation of criminal activity” to convert the inquiry into a
detention. (See I.N.S. v. Delgado, supra, 466 U.S. at p. 216; Bostick, supra, 501 U.S. at
p. 434.)
Even if we were to assume, for the sake of argument, that Deputy Ochoa’s inquiry
about defendant’s legal status constituted a show of authority, an officer’s show of
authority does not constitute a seizure under the Fourth Amendment if there has been no
submission by the defendant to the officer’s authority. (See California v. Hodari D.,
supra, 499 U.S. at pp. 625-626.) In Hodari D., a group of youths were huddled around a
car parked on a curb in a high crime area. (Id. at pp. 622-623.) When two officers
approached the car, the group took flight. (Ibid.) One of the officers chased the
defendant, who did not see the officer until the “officer was almost upon him, whereupon
he tossed away what appeared to be a small rock. A moment later, [the officer] tackled
Hodari, handcuffed him, and radioed for assistance.” (Id. at p. 623.) The small rock was
later determined to be crack cocaine. (Ibid.) The high court held Hodari had not been
seized within the meaning of the Fourth Amendment because he had not submitted to the
officer’s show of authority at the time he tossed the drug. The court reasoned that a
seizure for purposes of the Fourth Amendment “requires either physical force . . . or,
where that is absent, submission to the assertion of authority.” (California v. Hodari D.,
supra, at p. 626.) Thus, a mere showing of police authority is not enough to constitute a
seizure—absent any use of physical force by the officer or submission to the assertion of
18 authority by the defendant. (Id. at pp. 626-627.) Accordingly, until Hodari submitted,
that is, until he was tackled by the officer, no seizure occurred. (Id. at p. 629.)
Here, defendant did not answer Deputy Ochoa’s question regarding his probation
or parole status. Instead, he ran, and did not submit to the officer’s show of authority, if
any. Defendant’s refusal to respond to Deputy Ochoa’s question precludes a finding he
was detained. (See California v. Hodari D., supra, 499 U.S. at p. 626 [noting that “a
policeman yelling ‘Stop, in the name of the law!’ at a fleeing form that continues to flee”
has not been seized under the Fourth Amendment].) However, once defendant started
running and reaching for his waistband, reasonable suspicion arose to detain defendant.
Viewing Deputy Ochoa’s conduct as a whole and in the light most favorable to the
trial court’s denial of the motion for acquittal, the prosecution’s evidence was sufficient
to show Deputy Ochoa did not unlawfully detain defendant, and performing his duties in
a lawful manner, when he asked defendant whether he was on probation or parole.
B. Substantial Evidence Supports Defendant’s Forcibly Resisting Arrest Conviction
In a second argument related to his first, defendant claims his due process rights
have been violated because insufficient evidence supports his conviction for forcibly
resisting arrest. Again, he argues there is insufficient evidence that Deputy Ochoa was
lawfully performing his duties when he arrested defendant because he unlawfully
detained defendant when he asked him whether he was on probation or parole.
In reviewing a challenge to the sufficiency of the evidence supporting a criminal
conviction, we review the record “in the light most favorable to the judgment below to
19 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.) “‘[W]e presume every fact in support of the judgment the trier of fact could have
reasonably deduced from the evidence.’” (People v. Wilson (2008) 44 Cal.4th 758, 806.)
“If the circumstances reasonably justify the trier of fact’s findings,” a reversal is not
warranted despite the fact that circumstances may reasonably support a contrary finding.
(People v. Albillar (2010) 51 Cal.4th 47, 60.)
Though defendant’s version of the events supports a different conclusion, this does
not detract from the sufficiency of the evidence supporting the conviction. The jury was
entitled to believe Deputy Ochoa’s version of events, rather than defendant’s, and the
deputy’s testimony supported a reasonable inference that defendant was not detained
when the deputy approached him and asked him whether he was on probation or parole.
Indeed, defendant did not dispute that he failed to respond when the deputy asked him
whether he was on probation or parole. Once defendant refused to answer the deputy’s
question whether he was on probation or parole, then ran past the deputy and reached for
his waistband, the deputy was justified in detaining defendant based on reasonable
suspicion of criminal activity.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
20 KING J.
We concur:
RAMIREZ P. J.
RICHLI J.