Opinion
B159912.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. AZUREE D. REED, Defendant and Appellant.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Azuree D. Reed appeals from a final judgment entered after a plea of no contest. He seeks reversal of his conviction on the grounds that the settled statement of the hearing on his motion to suppress fails to provide an adequate record for meaningful appellate review and that the trial court violated his Fourth Amendment rights by denying the suppression motion. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Both parties rely on the facts adduced at the preliminary hearing.
At approximately 5:00 p.m. on October 16, 2000, Los Angeles Police Officer Kenneth Hurley responded to a call from Iomara Obano reporting a burglary at a residence at 855 West 60th Street. Ms. Obano stated that when she arrived home at 3:30 p.m., she discovered a broken bathroom window and saw that jewelry was missing.
Two days later, neighboring minor D. Garcia arrived home from school at approximately 3:25 p.m. As the minor entered her house through the back door, she saw that the kitchen window was broken and that a garbage can was lying sideways underneath the window. She called for her dog and then saw appellant standing in the living room of the house. After making eye contact with the minor, appellant ran out the front door holding a black box about the size of a VCR. The minors parents later discovered that a gold watch, bracelets, rings and a medallion were missing from the home.
On October 27, 2000, at approximately 11:00 a.m., Jamie Romero was inside her home at 839½ West 60th Street, but did not answer when appellant knocked on her door. Sometime later, appellant went to the side of the house and tried to cut through the security bars over the kitchen window. When Ms. Romero peeked through the kitchen curtains at appellant, he jumped over a fence behind the house and ran down an alley. Ms. Romero reported the incident to the police. She described appellant as an African-American male wearing black clothing and told police he had jumped over her back fence into an alley.
At approximately 1:30 p.m., Los Angeles Police Officer Gregory Martin received a radio call regarding the attempted burglary at Ms. Romeros residence. When Officer Martin arrived at the specified location minutes later, he saw appellant walking on the sidewalk near the front of Ms. Romeros residence. Officer Martin believed that appellant matched the description given by the dispatcher; appellant was an African-American male wearing black clothing. Officer Martin also noticed that appellant was perspiring and had twigs in his hair.
When Officer Martin and his partner tried to detain appellant by placing handcuffs on him, appellant attempted to flee. Appellant struggled with the officers until additional officers arrived. Once appellant was handcuffed and seated on the ground, Ms. Romero identified him as the person who tried to break into her home. In addition, Ms. Obano and D. Garcias parents later identified jewelry found on appellant as that taken from their homes.
A four-count information filed by the District Attorney of Los Angeles County charged appellant with one count of attempted residential burglary with a person present (Pen. Code, §§ 459 & 664), two counts of receiving stolen property (§ 496, subd. (a)), and one count of residential burglary with a person present (§ 459). The information further alleged that appellant had sustained one prior serious or violent felony conviction (§ 667, subds. (a)(1) & (b)-(i), § 1170.12, subds. (a)-(d)) and served two prior prison terms for felony convictions (§ 667.5, subd. (b)).
Unless otherwise indicated, all further statutory references are to the Penal Code.
Appellant moved to suppress evidence, including all items recovered from his person, all statements made by him and all eyewitness identifications. The trial court heard the motion on September 10 and 12, 2001, during which time Officer Martin and Jamie Romero testified. The trial court denied the motion.
Following the denial of appellants motion to suppress evidence, appellant pleaded no contest to the residential burglary count and admitted the prior felony conviction. The trial court sentenced appellant to an aggregate prison term of nine years, comprised of the low term of two years for the burglary count which was doubled and enhanced by five years by the serious prior felony. The trial court further imposed a restitution fine in the amount of $1,800 (§ 1202, subd. (b)) and ordered victim restitution in an amount to be determined (§ 1202.4, subd. (f)).
After appellant filed a timely notice of appeal, he learned that the court reporters notes for both days of the suppression hearing could not be located. In January 2003, we granted appellants motion for an order permitting a settled statement of the record. Thereafter, the trial court obtained declarations from the prosecutor and defense counsel and conducted a hearing in March 2003 to settle the record. A settled statement was filed on April 15, 2003.
DISCUSSION
Appellant contends that the settled statement submitted in lieu of the reporters transcript fails to provide an adequate record for meaningful review, and that the motion to suppress should have been granted because officers possessed neither reasonable suspicion to detain appellant nor probable cause to support a de facto arrest. We disagree. We find that the settled statement provides a sufficient basis for meaningful review and enables us fully to consider appellants contentions. We further find that the officers were justified in detaining appellant and that their decision to handcuff him did not transform the detention into an arrest.
A. The Settled Statement Provides a Sufficient Basis for Appellate Review.
Section 1181, subdivision (9), vests the trial court with the power to vacate a judgment and order a new trial when there has been a loss "in whole" or "in substantial part" of the court reporters notes. As explained in People v. Morales (1979) 88 Cal.App.3d 259, 267, this provision "is not mandatory and the term `substantial part is significant. [¶] The test is whether in light of all the circumstances it appears that the lost portion is `substantial in that it affects the ability of the reviewing court to conduct a meaningful review and the ability of the defendant to properly perfect his appeal." Coupled with this test is related case law holding that "the unavailability of a full reporters transcript does not automatically entitle a defendant to a new trial; where other methods of reconstructing the trial record are available, the defendant must proceed with those alternatives in order to obtain review." (People v. Jones (1981) 125 Cal.App.3d 298, 300.)
Section 1181, subdivision (9), states: "When the right to a phonographic report has not been waived, and when it is not possible to have a phonographic report of the trial transcribed by a stenographic reporter as provided by law or by rule because of the death or disability of a reporter who participated as a stenographic reporter at the trial or because of the loss or destruction, in whole or in substantial part, of the notes of such reporter, the trial court or a judge, thereof, or the reviewing court shall have power to set aside and vacate the judgment, order or decree from which an appeal has been taken or is to be taken and to order a new trial of the action or proceeding."
Here, appellant properly availed himself of the procedures outlined in rule 36(b) of the California Rules of Court; both counsel and the trial court actively participated in the preparation of a settled statement of the suppression hearing. Appellant contends that, despite his efforts, the settled statement fails to afford a meaningful basis for review because a number of important evidentiary issues remain unsettled. Specifically, appellant claims that neither counsel nor the trial court could recall whether the suppression hearing focused on reasonable suspicion to detain as opposed to probable cause to arrest; whether Ms. Romero provided the officers with a more detailed description of the suspect or said whether he was carrying anything such as a cutting tool; or whether there were other individuals in the area who might have matched Ms. Romeros description. Nor could anyone recall the length of the detention, the questions asked by the officers or whether the officers displayed weapons.
For the purpose of clarity, we quote the relevant portion of the settled statement: "Officer Gregory Martin testified for the prosecution on September 10, 2001 and September 12, 2001 in conjunction with the suppression hearing. [Citation.] During the course of his testimony, Officer Martin stated he and his partner received a radio call describing an African American male wearing black clothing who had attempted to gain entry into the callers residence at 839½ West 60th Street in Los Angeles. The dispatcher further stated the suspect had jumped over the victims back fence into an alley. When [O]fficer Martin arrived at the specified location, he saw appellant walking on the sidewalk near 839 West 60th Street. Officer Martin believed that appellant matched the description given to him by the police dispatcher in that appellant was African American and wearing black clothing. Officer Martin additionally observed appellant was perspiring and had twigs in his hair. The officer later learned the fence over which the suspect had jumped contained vegetation, but did not know this at the time he contacted appellant. [¶] Jamie Romero testified for the prosecution on September 12, 2001 in connection with the suppression hearing. [Citation.] Romero stated she called the police on October 27, 2000 to report that an African American male wearing black clothing had tried to break into her house. She told the police the suspect jumped a fence behind her house into an alley. [¶] When Officer Martin and his partner tried to detain appellant by placing handcuffs on him, appellant attempted to flee. The officers struggled with appellant until additional officers appeared and then appellant was taken into custody."
We conclude that these omissions do not prevent us from conducting a meaningful review of the suppression motion. As we discuss in more detail below, we agree with the trial court that the settled statement sets forth an adequate factual basis to support a finding of reasonable suspicion. As the trial court acknowledged at the hearing to prepare the settled statement, "if he [appellant] was either in dark or black on top and was in the immediate vicinity of the burglary and he was perspiring and had twigs in his hair, . . . thats reasonable suspicion." Though the facts which appellant claims are omitted from the settled statement might have provided additional insight into the circumstances surrounding the detention, the settled statement provides adequate information for appellate review. Summarizing counsels and the trial courts recollection of the suppression hearing, the settled statement provides information concerning the victims call to the police, including her description of the suspect; the factors the officer considered in stopping appellant; and the events that occurred during the detention.
These circumstances distinguish this case from In re Steven B. (1979) 25 Cal.3d 1. There, the Supreme Court vacated a judgment and remanded for further proceedings where the reporters notes of the second day of the minors jurisdictional hearing were inadvertently destroyed and there was no adequate substitute for a complete record, as counsel had an insufficient recollection of the proceedings to permit the preparation of a settled statement. (Id. at pp. 4, 8; see also People v. Apalatequi (1978) 82 Cal.App.3d 970, 973 [where the defendant made a claim of prosecutorial misconduct during closing argument, the settled statement was an inadequate substitute for the reporters transcript because it failed to set forth what the prosecutor said].)
Here, the settled statement is an adequate substitute for the missing transcript. It includes a concise summary of the undisputed evidence proffered at the suppression hearing. It is akin to the settled statement prepared in People v. Huff (1978) 83 Cal.App.3d 549 after the court reporter lost the bulk of her notes from the defendants suppression hearing. Though the defendant complained that the settled statement was "a `skimpy document of only 27 lines," the appellate court found that the statement accurately summarized the arresting officers testimony in all material respects and provided an effective means for appellate review of the denial of the suppression motion. (Id. at p. 556; accord, People v. Holloway (1990) 50 Cal.3d 1098, 1115-1116 [settled statement of five hours of legal argument was an adequate substitute for a reporters transcript], disapproved on other grounds, People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; In re Ian J. (1994) 22 Cal.App.4th 833, 838-840 [clerks minutes were an adequate substitute for reporters transcript of minors jurisdictional hearing].) We find that the settled statement provides a sufficient basis for meaningful appellate review.
B. Appellants Detention was Constitutionally Reasonable.
Where, as here, the facts bearing on the legality of a challenged detention are undisputed, we are confronted with a question of law and must independently determine whether the facts support the trial courts conclusion that appellants detention met the constitutional standard of reasonableness. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Ramirez (1996) 41 Cal.App.4th 1608, 1613; People v. McCluskey (1981) 125 Cal.App.3d 220, 225.)
Police interactions commonly referred to as "detentions" are "seizures of an individual which are strictly limited in duration, scope and purpose . . . ." (In re James D. (1987) 43 Cal.3d 903, 911.) Though a police officer need not have probable cause to arrest an individual in order to detain him, the detention must be constitutionally reasonable: To justify a detention "the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question." (In re Tony C. (1978) 21 Cal.3d 888, 893.) In discussing the difficulty courts have had in defining what constitutes reasonable suspicion, the Supreme Court in United States v. Cortez (1981) 449 U.S. 411, 417-418 stated: "Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like `articulable reasons and `founded suspicion are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances—the whole picture—must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. [Citations.]"
Considering the totality of the circumstances, we agree with the trial court that Officer Martin was justified in detaining appellant. Officer Martin and his partner received a radio call informing them that an African-American man wearing dark clothing had burglarized a residence and then jumped over the back fence into an alley. When Officer Martin arrived in front of the residence, he saw an African-American man in dark clothing walking in front of the residence, perspiring and with twigs in his hair. Given that appellant matched the description of the individual in the radio call and exhibited features consistent with having jumped over a fence, we find it was objectively reasonable for Officer Martin to suspect that appellant had been involved in the burglary. "`It is enough if there is adequate conformity between description and fact to indicate to reasonable officers that detention and questioning are necessary to the proper discharge of their duties." (People v. Huff, supra, 83 Cal.App.3d at p. 558; see also People v. Conway (1994) 25 Cal.App.4th 385, 390 [objectively reasonable for officer to stop car leaving area of reported burglary less than two minutes after receiving a radio call of a burglary in progress, even though the officer had no description of the suspect and did not know whether he was driving a car]; People v. Fields (1984) 159 Cal.App.3d 555, 563-566 [objectively reasonable for officer to stop appellant based on description of suspect as a tall, thin, Black man, about 25 years old, possibly wearing jogging clothes, because appellant generally matched this description and was in the vicinity of the offense six hours after it occurred].)
We reject appellants claims that the detention was unreasonable because the officer did not have a sufficient factual basis to form a particularized suspicion that appellant had been involved in a crime. The description given by the victim in this case was more specific than that in In re Tony C., supra, 21 Cal.3d 888, where the court concluded it was unreasonable for officers to detain two Black minors in a residential neighborhood on the basis of reports that three Black individuals of unspecified ages had committed crimes in the area. (Id. at p. 898.) Here, appellants clothing and his appearance (i.e., perspiration and twigs in his hair) matched the victims description of the suspect. In view of these unique characteristics, we do not find it significant that the settled statement omits to mention whether there were other Black males walking nearby. Nor do we find it significant that appellant had a black eye which the victim did not describe. (See People v. Rico (1979) 97 Cal.App.3d 124, 132 [noting that "[w]itnesses and `[crime] victims often have limited opportunity for observation, their reports may be hurried, perhaps garbled by fright or shock," and that therefore it was reasonable for officers to detain a black and gold Cadillac described as a light brown Chevrolet].) We conclude there was adequate conformity between the victims description and appellants appearance to justify the detention.
We further reject appellants contention that his detention impermissibly evolved into a de facto arrest because appellant was handcuffed during the detention. As explained in In re Carlos M. (1990) 220 Cal.App.3d 372, 385: "The fact that a defendant is handcuffed while being detained does not, by itself, transform a detention into an arrest." Rather, "the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances." (Id. at pp. 384-385.) We find that the decision to handcuff appellant during the detention did not exceed the restraint reasonably necessary to accomplish quickly the purpose of the detention. Officer Martin sought to handcuff appellant pending a victim identification on a public street. Several cases have sanctioned this type of procedure, and we conclude that handcuffing appellant during the brief period before the victim arrived was a reasonably necessary precautionary measure that did not transform the detention into an arrest. (See, e.g., People v. Johnson (1991) 231 Cal.App.3d 1, 14 [handcuffing the defendant while questioning him eliminated the possibility of assault or escape and did not transform detention into arrest]; Carlos M., supra, at p. 385 [handcuffing the defendant while he was transported to the victim for identification assured officer safety and did not transform detention into arrest]; People v. Bowen (1987) 195 Cal.App.3d 269, 274 [handcuffing the defendant for 25 minutes pending the victims arrival was reasonable and did not transform detention into arrest].)
DISPOSITION
The judgment is affirmed.
We concur, BOREN, P.J., ASHMANN-GERST, J.