Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF123994. J. Thompson Hanks and Douglas E. Weathers, Judges.
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
McKINSTER Acting P. J.
Defendant and appellant Elijah Ray Rich appeals after he was convicted of one count of resisting an officer (Pen. Code, § 69) and one count of being under the influence of a controlled substance (Pen. Code, § 647, subd. (f)). He moved to suppress evidence below on the ground that the detention was unreasonable in scope or duration. The trial court denied the motion and defendant now appeals. We affirm.
FACTS AND PROCEDURAL HISTORY
On May 30, 2005, in the early morning hours, Riverside Police Officer Marco Ortiz received a report that two White males were drunk in public at a residential intersection. He responded to the street location and saw defendant in shadows near a bus bench. Defendant was the only person in sight. As Officer Ortiz passed in his patrol car, he saw defendant duck down behind the bench.
Officer Ortiz, considering defendant’s behavior suspicious, stopped to investigate. He approached defendant on foot and asked defendant for identification and inquired what he was doing. Defendant claimed to be an informant and said he was waiting for a drug dealer named Julie. Defendant did not have any identification. Defendant could not supply the name of the party for whom he worked as an informant; the officer did not believe that defendant was an informant.
Officer Ortiz asked defendant whether he was on probation or parole. Defendant denied this, but consented to a search. The officer found nothing illegal in the search. Nonetheless, the officer was concerned. Defendant was acting “really jittery,” and he was making “quick movements and random statements. He was spouting off.” Defendant’s “informant” story did not make sense. Officer Ortiz suspected that defendant was under the influence of a controlled substance, such as methamphetamine.
Officer Ortiz wanted to continue his investigation, to make a records check on defendant and administer some field sobriety tests, but the backup officers he had called had not yet arrived. He felt it was unsafe to leave defendant outside his patrol car while he investigated further, i.e., look behind the park bench to see if defendant had discarded any contraband. He therefore decided to place defendant in the back of his patrol car until backup officers arrived.
As a result of the search, defendant had placed his hands behind his back with his fingers laced together. Officer Ortiz started escorting defendant to the car. The officer guided defendant by placing his hand over defendant’s interlaced fingers and walking him toward the car. As the officer opened the back door and asked defendant to sit, defendant violently jerked away, and swung his elbow near the officer’s face. Defendant then ran away. The officer gave chase and caught defendant a short distance away. Defendant struggled until he was finally subdued with the help of arriving officers.
Defendant was then arrested and taken to the hospital. Officer Ortiz interviewed defendant at the hospital, after defendant waived his rights. He asked defendant if he was using any drugs. Defendant stated that he had taken Topomax and drank two bottles of malt liquor. Defendant explained that Topomax was an antiseizure medication; defendant claimed he did not have seizures, but took the medicine anyway.
Tests of defendant’s blood showed that he had taken Topomax within a therapeutic range. Topomax is an antiepileptic drug that is also used to treat alcoholism. It is a central nervous system depressant.
Defendant was charged with one felony count of interfering with an officer in the course of his duties in violation of Penal Code section 69, and one misdemeanor count of being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a). The information included allegations that defendant had a prior felony conviction for which he had served a term in prison.
Defendant moved to suppress the officer’s observations on the ground that the detention was unlawfully prolonged. The court denied the motion.
The trial was delayed while proceedings were had to determine defendant’s competency to stand trial. Defendant was arraigned on an amended information, which alleged one count of resisting arrest (Pen. Code, § 69) and a misdemeanor violation of being under the influence of drugs or alcohol in a public place, such that he was unable to care for the safety of himself or others (Pen. Code, § 647, subd. (f)).
A jury convicted defendant of both charges. Defendant admitted his prior conviction. The court denied probation and sentenced defendant to three years in state prison, consisting of the middle term of two years on count 1, plus one year for the prior prison term enhancement. Defendant’s county jail sentence of 120 days on the misdemeanor count was to run concurrently with his state prison sentence.
Defendant appeals.
ANALYSIS
I. The Court Properly Denied Defendant’s Motion to Suppress Evidence
Review of the trial court’s denial of a motion to suppress evidence presents a mixed question of law and fact. As to the trial court’s factual findings underlying its decision, we uphold them when supported by substantial evidence. As to the legal conclusion—here, whether the detention was reasonable in scope under the Fourth Amendment—we review the matter de novo. (People v. Alvarez (1996) 14 Cal.4th 155, 182.)
Defendant argues, in essence, that although the initial contact was justified, the detention beyond the time when Officer Ortiz searched defendant—i.e., when he decided to place defendant in the patrol car—was unreasonable in scope and duration.
Defendant points out that a detention is lawful if the officer is aware of “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant” the detention. (Terry v. Ohio (1968) 392 U.S. 1, 21 [88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 901].) The specific and articulable facts must cause the officer “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.” (In re Tony C. (1978) 21 Cal.3d 888, 893, superseded on other grounds by Cal. Const., art. I, § 28.)
Defendant argues that the objective circumstances here did not support a reasonable suspicion that defendant was involved in any criminal activity. Officer Ortiz had received a report of two White men drunk in public at a certain intersection. When he responded to the area, he saw only one person, defendant, a dark-skinned individual. Defendant ducked down behind a bus bench. Defendant did not run away when Officer Ortiz approached him on foot. He responded voluntarily to Officer Ortiz’s questions and consented to a personal search. That search turned up no contraband.
Defendant argues that Officer Ortiz testified at trial that he “could not tell if [defendant] was under the influence of drugs or alcohol,” and that he “admittedly did not know if [defendant] was under the influence of anything.” This is a mischaracterization of the record.
At the hearing on the motion to suppress, Officer Ortiz testified expressly that he suspected that defendant was under the influence of some substance from the first time he contacted defendant. Defendant’s behavior was consistent with that assessment: defendant was nervous, looking around constantly, touching himself, and acting “jittery” during the entire encounter. Defendant told the officer that he was an undercover informant, trying to gain information to arrest a drug dealer named “Julie.” Defendant could not identify the law enforcement agency or officer who employed him as an informant, however. Defendant also made many utterly random, nonsensical statements. He was just “spouting off.”
Defense counsel elicited testimony from Officer Ortiz at the hearing that he had not found anything illegal on defendant’s person, that defendant had not committed any crime in the officer’s presence, and “as of that time”—i.e., concluding the pat-down search—defendant had not done anything illegal. The officer corrected his testimony on inquiry by the court, however, that he had thought defendant might be under the influence of a controlled substance, which would constitute a crime. Officer Ortiz was not certain whether defendant had committed a crime, but he still suspected defendant was under the influence and intended to conduct a further investigation.
A proper detention is that minimal intrusion designed to confirm quickly or dispel the suspicions which justified the initial stop. (In re Carlos M. (1990) 220 Cal.App.3d 372, 384, citing United States v. Sharpe (1985) 470 U.S. 675, 686-687 [105 S.Ct. 1568, 1575, 84 L.Ed.2d 605, 616].) At the point when Officer Ortiz decided to conduct field sobriety tests and search the area, nothing had so far either conclusively confirmed or dispelled the officer’s suspicions. The suspicious circumstances remained.
Appellate counsel describes defendant as “nervous” and “agitated,” and emphasizes that “[n]ervousness and agitation are not crimes,” adding that “contact with law enforcement makes many innocent people nervous.” This again mischaracterizes the record, however. Defendant was not merely nervous; he was behaving bizarrely and irrationally. The circumstances more than warranted a detention for further investigation.
Defendant appeared to be under the influence of some substance. Officer Ortiz had called for backup officers who had not yet arrived. A brief further detention to conduct field sobriety tests, with other officers for added safety, was reasonable under the circumstances. (Cf. People v. Mosqueda (1982) 128 Cal.App.3d 918, 920.)
II. The Instructions Were Proper
Defendant next contends that the trial court had a sua sponte duty to give further instructions elaborating on the meaning of “lawful performance” of duty with respect to the charge of interfering with an officer. The jury was instructed, pursuant to CALCRIM No. 2670, that the burden was on the People to prove that Officer Ortiz was lawfully performing the duties of a peace officer at the time defendant resisted the detention.
Defendant claims that the court should also have instructed that Officer Ortiz was not lawfully performing his duties, unless his investigative methods were also “the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.” (Citing United States v. Sharpe, supra, 470 U.S. 675, 693 [84 L.Ed.2d 605, 620, 105 S.Ct. 1568, 1579], italics added.)
The trial court is required to instruct only on general principles of law that are necessary to the jury’s understanding of the case. Instructions on specific points or special theories that may be applicable to a defendant’s particular case must be requested. (People v. Saille (1991) 54 Cal.3d 1103, 1119-1120.) Defendant failed to request the pinpoint instructions he now desires to have been given. The failure to request them forfeits the issue, unless defendant can demonstrate a miscarriage of justice. (People v. Christopher (2006) 137 Cal.App.4th 418, 426-427.) This, he has not done, and cannot do.
The detention was justified by the circumstances of defendant’s bizarre behavior. The entire encounter was very brief, perhaps a minute or so, as Officer Ortiz testified at the motion hearing. The short period of time had thus far been unable to allay the officer’s suspicions. Defendant continued to behave irrationally, warranting administration of field sobriety tests; the officer testified that he had been trained to conduct such tests only with other officers present. He had already called for backup, but the additional officers had not yet arrived. Defendant cannot show that a miscarriage of justice occurred, inasmuch as the circumstances showed that the officer had acted lawfully.
Another way of saying the same thing is that any error was harmless. The defense theory—that Officer Ortiz exceeded his authority and was acting unlawfully when he had defendant place his hands behind his back and started to escort him to the police car—was fully presented and argued to the jury. The jury necessarily rejected that theory in finding defendant guilty. Any conceivable error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710].)
III. The Prosecutor Did Not Commit Misconduct in Argument
Finally, defendant argues that the prosecutor committed error during closing arguments. Defendant points to the prosecutor’s statements on the issue of a “reasonable officer,” as a required element of Penal Code section 69, contending that the particular arguments had the effect of relieving the People’s burden to prove that Officer Ortiz was acting lawfully at the time defendant resisted him, by impermissibly vouching for Ortiz’s conduct.
The prosecutor told the jury it was required to “determine whether a reasonable officer would have done those same things. Not a reasonable individual. Not a nurse, not a janitor, not an attorney.” The prosecutor further argued that police officers “have a special type of job that[,] while we’re sleeping in our beds, they’re up, they’re in danger, they’re dealing with crime. They’re dealing with suspects. They’re dealing with criminals. They’re putting their lives at stake. They have a different mentality and different training and a different background.” Again, the prosecutor stated, “it’s from the perspective of a reasonable officer, and we discussed this before, so I’m not going to go into it in too much detail now. But it’s from the perspective of a reasonable officer, not a reasonable person. You have to look to the officer’s training and experience and all the circumstances known by the officer at the time.” The prosecutor concluded that, “When we are sleeping at night, when we are resting our heads and we are not thinking about the dangers that surround us, men and women like Officer Ortiz are out there keeping our environment, our community . . . safe.”
Defendant urges that these statements led the jury to believe it was not qualified to judge the reasonableness of an officer’s conduct, and constituted impermissible vouching for Officer Ortiz’s conduct. We reject defendant’s claim.
In the first place, defendant has waived the claim by failing to object below. (People v. Harrison (2005) 35 Cal.4th 208, 241.) The failure to object deprived the court of the opportunity to correct or cure any misapprehension arising from the prosecutor’s argument. (See, e.g., People v. Stanley (2006) 39 Cal.4th 913, 952.)
Secondly, the prosecutor committed no misconduct. “The general rule is that improper vouching for the strength of the prosecution’s case ‘ “involves an attempt to bolster a witness by reference to facts outside the record.” ’ (People v. Williams (1997) 16 Cal.4th 153, 257, italics omitted.) Thus, it is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it.” (People v. Huggins (2006) 38 Cal.4th 175, 206-207.)
The prosecutor here did not refer to anything outside the record. Instead, the jury was reminded that the determination of reasonableness should focus on the circumstances of the officer’s position, training and experience. Such training and experience are different from the training and experiences of members of other professions or of the general public, and the jury should be mindful to place itself in the circumstances which a reasonable officer would be expected to take into account.
The prosecutor’s remarks were properly focused on the reasonableness of the officer’s conduct.
DISPOSITION
The judgment is affirmed.
We concur: GAUT J., KING J.