Opinion
A151115
07-11-2018
THE PEOPLE, Plaintiff and Respondent, v. BRANDON JOHNATHAN BURKS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. 51612647)
A jury convicted defendant Brandon Johnathan Burks of four counts of burglary (Pen. Code, § 459) and one misdemeanor count of resisting an officer during the performance of his or her duties (§ 148, subd. (a)(1)). On appeal, he challenges only his section 148 conviction. Specifically, he maintains the officer who attempted to detain him lacked sufficient basis to do so. Ergo, according to defendant, the officer was not engaged in the performance of his lawful duties, a requisite element of a section 148 conviction. We affirm.
All statutory references are to the Penal Code unless otherwise indicated.
BACKGROUND
We recite only those facts relevant on appeal. --------
During an afternoon in early March 2016, J.W. was home when she heard a banging on the window. She saw an African-American man, wearing a blue windbreaker, looking into the window and pressing his fingers against the glass. J.W. called 911. Officer Frederick Blumberg was dispatched to the Buckeye Court home at 4:14 p.m. He noticed a broken window and an adjacent window with a screen removed, but did not find any suspects.
At around 5:24 p.m. that same day, Corporal James Stenger was dispatched on a different call to Shetland Way, in response to a residential burglary alarm. Stenger was wearing his police uniform and driving a marked patrol vehicle. On his way, he noticed a silver Audi parked on the side of a street with no residences. Stenger noticed the street backed up to Shetland Way, and he estimated the Audi was about 50 to 100 yards from the address where he was responding to the alarm. Stenger saw two African-American men standing near the trunk of the parked car. Stenger observed one of the men wearing a blue windbreaker and putting a woman's purse into the trunk.
Earlier in the day, Corporal Stenger had heard a police report that an African-American man in a blue windbreaker had attempted to break into a home. Stenger pulled up behind the parked car, exited his vehicle, and told the man wearing the blue windbreaker that he "wanted to speak with him." The man took two or three steps backwards, away from the officer. Stenger told him to "stop," and the man turned around and started running. Stenger did not chase him, but proceeded to investigate the car and respond to the burglary alarm.
Five days later, Detective Adrian Gonzalez met with J.W. and conducted a photographic lineup, and J.W. identified defendant as the man she had seen at her home. Defendant was charged with four counts of burglary (§ 459) and one misdemeanor count of resisting an officer (§ 148, subd. (a)(1)).
At trial, J.W. and Corporal Stenger identified the man who was wearing the blue windbreaker as defendant. The jury heard the audio of the 911 call J.W. made, where she reported that defendant was wearing a blue rain jacket. The jury found defendant guilty of all counts.
DISCUSSION
In reviewing a challenge to the sufficiency of the evidence, we determine " ' "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ' " (In re V.V. (2011) 51 Cal.4th 1020, 1026, italics omitted.)
The lawfulness of the officer's duties is "an essential element of" section 148. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1409.) The long-standing rule is 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. . . . [Citations.] 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties" . . . if the officer's conduct is unlawful.' " (In re Manuel G. (1997) 16 Cal.4th 805, 815, italics omitted.)
The California Supreme Court has described the legal basis upon which an officer may conduct an investigative stop as follows: "[T]he 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." (In re Tony C. (1978) 21 Cal.3d 888, 893 (Tony), superseded on other grounds by Cal. Const., art. I, § 28.) The facts must be such that any reasonable officer in a similar position could suspect some criminal activity involving the subject of the detention. (Tony, at p. 893.) In short, our high court has "consistently held that circumstances short of probable cause to make an arrest may still justify an officer's stopping" to question a citizen. (People v. Mickelson (1963) 59 Cal.2d 448, 450.) Indeed, police officers have a duty to maintain security and protect citizens, and this duty includes "innumerable miscellaneous tasks . . . which have nothing to do with the detection of crime." (Batts v. Superior Court (1972) 23 Cal.App.3d 435, 438.)
The instant case is similar to a number of cases in which section 148 convictions have been affirmed. For example, in People v. Allen (1980) 109 Cal.App.3d 981, 983 (Allen), the officer saw the defendant standing at the trunk of a car handling what the officer thought were new jackets in clear packaging. As the officer stopped his vehicle, the defendant slammed the trunk closed and hurried away. (Id. at p. 984.) Defendant continued to run as the officer pursued in his vehicle. (Ibid.) The court affirmed the defendant's section 148 conviction, holding the officer had "adequate grounds to effect a temporary detention for questioning . . . under the criteria prescribed by [Tony]." (Id. at p. 985.)
Defendant maintains Allen is distinguishable because here "there [were] no facts suggesting defendant was engaged in any criminal activities before he ran from the Audi which would support a lawful attempt to detain him." On the contrary, the officer had received a report of an African-American man in a blue windbreaker attempting to break into a home, the Audi was parked on an empty street, the defendant and another individual were standing by the open trunk, and defendant, wearing a blue windbreaker, was putting a woman's purse into the trunk. This was more than sufficient to support an investigative stop. While defendant claims the only justification for stopping him was that he was a "Black man wearing a blue windbreaker," as we have recited, that simply is not the case.
Defendant also claims Allen is distinguishable because the appellate court ultimately ruled the officer had probable cause to make an arrest for violating section 148 and, therefore, the ensuing search was lawful. However, Allen does not hold that grounds to make an arrest, or an attempt to make an arrest, must exist to establish the requisite elements of a section 148 violation. On the contrary, this contention disregards the distinction between an investigatory stop (requiring only reasonable suspicion) and grounds to arrest (probable cause). Accordingly, section 148 convictions have been affirmed without an officer having initiated, or even attempted, an arrest. (See, e.g., Allen, supra, 109 Cal.App.3d 981; In re Andre P. (1991) 226 Cal.App.3d 1164 (Andre P.); In re Gregory S. (1980) 112 Cal.App.3d 764, 771 (Gregory) [specifically stating officer did not intend to arrest appellant].)
In Andre P., supra, 226 Cal.App.3d at page 1168, for example, the officer spotted the defendant, a minor, and decided to talk to him about a curfew violation. As soon as the officer exited his vehicle, the defendant started running. (Ibid.) The court affirmed the section 148 conviction, holding that the facts were reminiscent of those in Allen. (Andre P., at p. 1169.) Defendant claims Andre P. is distinguishable because in that case the officer "personally viewed an apparent curfew violation." However, a section 148 violation does not depend on the officer attempting to make the investigatory stop to have witnessed the criminal activity.
DISPOSITION
The judgment is affirmed.
/s/_________
Banke, J. We concur: /s/_________
Margulies, Acting P.J. /s/_________
Dondero, J.