Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F09063
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendant Jorge Luis Cabrales was convicted by a jury of robbery in violation of section 211 of the Penal Code and sentenced to a term of three years in state prison. Defendant raises two issues on appeal. First, defendant asserts that the trial court erred in denying his motion to suppress evidence secured during an investigatory detention. Second, defendant claims that the trial court erred in instructing the jury pursuant to Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM Nos. 200, 220, 222, and 223. As will be explained more fully below, defendant is incorrect on both counts. We will affirm the judgment.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
On October 16, 2006, at approximately 10 p.m., 16-year-old N.G. was robbed at gunpoint at the 19th and Broadway light rail station. As N.G. approached the station, he noticed a group of five young men apparently waiting for the light rail. One of the men, wearing a tan coat with a fur interior and later identified as codefendant Williams, called out to N.G. and asked him if he wanted to buy any “trees,” which N.G. understood to mean marijuana. N.G. declined, but decided to approach the group of men anyway. Williams then asked N.G. if he knew where to get any pills. As N.G. was responding in the negative, one of the other members of the group approached him from behind. N.G. turned around to find a gun pressed into his stomach. The man told N.G. to empty his pockets. N.G. complied. Another member of the group told N.G. to remove his backpack. N.G. again complied with the demand, handing the backpack over to a man wearing a T-shirt emblazoned with a picture of rapper Mac Dre, later identified as defendant Cabrales. Defendant opened the backpack to find a laptop computer, Nintendo DS game system, video game, and a notebook containing school work. The group of men cheered their good fortune. N.G. also handed over his wallet and watch before the group of men pushed him towards the tracks and told him to get on the approaching train.
N.G. testified that he believed defendant Cabrales to be the one who told him to remove his backpack, but he could not be absolutely certain. He was certain, however, that he handed the backpack to defendant.
N.G. boarded the train as directed and proceeded to find a security guard to report the robbery. N.G. told the guard that he was just robbed at gunpoint by five African American males. The guard radioed police and told N.G. to get off at the 47th Avenue light rail station to give a statement to police.
At 10:11 p.m., Officer Glen Barretto of the Sacramento Police Department received a dispatch through the Regional Transit (RT) channel informing him of a robbery at the 19th and Broadway light rail station. The information Officer Barretto received from the dispatch was that the victim had been robbed by five African American males. When Officer Barretto arrived at the station, he spoke to Ricky Freeney, an RT employee who was cleaning the station. Only minutes before his encounter with Officer Barretto, Freeney had been told by an unidentified witness that a robbery had just occurred. The witness pointed out the five men involved in the robbery, and Freeney witnessed these men leaving the station on foot, heading westbound on Broadway. Freeney relayed the information to Officer Barretto. Freeney also indicated that the men were in their twenties and wearing puffy jackets.
There is some confusion in Officer Barretto’s testimony at the suppression hearing concerning who pointed the men out to Freeney. Officer Barretto initially testified that N.G. hailed Freeney following the robbery and pointed the men out to him. However, during cross-examination, Officer Barretto admitted that he did not know whether it was the victim who pointed the men out to Freeney. Moreover, N.G. testified at trial that he boarded the light rail immediately following the robbery and that the first person he told was the transit guard. All that Officer Barretto was certain about was that “some guy” who witnessed the robbery approached Freeney and pointed the men out.
Armed with the description of the five suspects, Officer Barretto jumped in his squad car and traveled westbound on Broadway. Twelve minutes after the initial dispatch and not more than three blocks from the scene of the robbery, at the intersection of 16th and Broadway, Officer Barretto discovered five men he believed matched the description. Four of the men were on the southwest corner of the intersection. The fifth was on the southeast corner, “walking away after he crossed the street[.]” Officer Barretto detained all five men to determine whether they were involved in the robbery.
Meanwhile, shortly after arriving at the 47th Avenue light rail station, N.G. was met by Deputy Steindorf of the Sacramento County Sheriff’s Department. N.G. described the robbery to Deputy Steindorf. While still maintaining that all five men were of African American descent, N.G. provided a more detailed description of the robbers. He explained that the man who initiated the conversation at the light rail station was approximately 20 years old and was wearing a tan fur coat. He also described the man who had searched through his backpack as wearing a black Mac Dre T-shirt.
Deputy Steindorf voiced the updated description of the suspects over the police radio at 10:30 p.m., 19 minutes after the initial dispatch, and shortly after the five suspects had been detained. Deputy Steindorf then informed N.G. that five potential suspects were currently being detained. Deputy Steindorf asked N.G. to try to identify the men at an in-field show up. N.G. agreed and was brought to the intersection of 16th and Broadway at 10:37 p.m. N.G. positively identified all five men, including defendant Cabrales.
A search of the area revealed the weapon used in the robbery. Lying on the ground on the southwest corner of the intersection was a pellet gun in the form of a realistic replica of a Glock 26 handgun. N.G.’s backpack was found on one of the other suspects, Thadius Lewis. N.G. identified the backpack and its contents as property taken from him during the robbery.
On December 11, 2006, a felony complaint was filed charging defendant Cabrales and his codefendants with one count of second degree robbery. On December 13, 2006, defendant filed a motion to suppress evidence obtained following the detention. The trial court denied defendant’s motion to suppress. The Jury trial commenced on February 26, 2007. On March 14, 2007, the jury found defendant guilty of second degree robbery.
Defendant filed a timely notice of appeal.
DISCUSSION
I
Defendant contends that his motion to suppress was wrongly denied because Officer Barretto did not have a reasonably articulable suspicion that defendant was involved in criminal activity at the time of the detention. Defendant further claims that even if Officer Barretto had such suspicion at the moment of detention, “he could not objectively maintain a reasonable suspicion [defendant] was involved in the robbery once he discovered that [defendant] was not black.” We disagree.
“‘The standards for appellate review of the trial court’s determination on a motion to suppress pursuant to section 1538.5 are well settled. The trial court’s factual determinations are reviewed under the deferential substantial evidence standard; its determination of the applicable rule of law is scrutinized under the standard of independent review. [Citation.] We independently assess as a question of law whether, under such facts as found by the trial court, the challenged action by the police was constitutional. [Citation.]’” (People v. Lindsey (2007) 148 Cal.App.4th 1390, 1395 (Lindsey); People v. Coulombe (2000) 86 Cal.App.4th 52, 55-56.)
“The guiding principle in determining the propriety of an investigatory detention is ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ [Citations.] In making our determination, we examine ‘the totality of the circumstances’ in each case.” (People v. Wells (2006) 38 Cal.4th 1078, 1083.) “Reasonable suspicion is a lesser standard than probable cause, and can arise from less reliable information than required for probable cause, including an anonymous tip.” (Ibid; see also People v. Dolly (2007) 40 Cal.4th 458, 463.)
As this Court explained in People v. Conway (1994) 25 Cal.App.4th 385 (Conway): “To justify an investigative stop or detention, the circumstances known or apparent to the officer must include specific and articulable facts which, viewed objectively, would cause a reasonable officer to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person the officer intends to stop or detain is involved in that activity.” (Conway, supra, at p. 388 [citing In re Tony C. (1978) 21 Cal.3d 888, 893]; see also People v. Souza (1994) 9 Cal.4th 224, 230 [“the temporary detention of a person for the purpose of investigating possible criminal activity may, because it is less intrusive than an arrest, be based on ‘some objective manifestation’ that criminal activity is afoot and that the person to be stopped is engaged in that activity”].)
In Conway, Deputy Sheriff Judd was on patrol and received a dispatch of a burglary in progress minutes from his location. The dispatch informed the deputy that two suspects were seen in the victim’s garage, but provided no description of the suspects and did not mention a vehicle. (Conway, supra, 25 Cal.App.4th at p. 388.) Within minutes of receiving the dispatch, while en route to the scene of the crime, Deputy Judd passed a car with two occupants coming from the street on which the burglary had been reported. Deputy Judd made a U-turn and stopped the vehicle intending to detain the occupants until the burglary victim could identify them. He did not have to wait long. The victim had been chasing the vehicle on foot. When he found the vehicle stopped by Deputy Judd, the victim identified the men as the burglars.
We held that the investigatory detention of these suspects was objectively reasonable in light of the totality of the circumstances. (Conway, supra, 25 Cal.App.4th at p. 390.) Important to our decision was the fact that the information Deputy Judd received concerning criminal activity was very current. (Ibid.) Also important was the fact that the dispatch came at approximately 3 a.m., a time when there was no other traffic in the area and no one on foot near the scene of the crime. (Ibid.)
In this case, the initial dispatch, received minutes after the robbery, provided Officer Barretto with a vague description of the suspects - five African American males. Upon reaching the 19th and Broadway light rail station, Officer Barretto was informed by Ricky Freeney that the suspects, five African American males in their twenties wearing puffy jackets, had left the station on foot and were headed westbound on Broadway. Twelve minutes after the initial dispatch and not more than three blocks from the scene of the robbery, Officer Barretto discovered five men he believed matched the description. What appeared to be four African American males were on the southwest corner of the intersection. The fifth was on the southeast corner, “walking away after he crossed the street[.]” They were all wearing jackets. Two of the jackets appeared to be “puffy.” Moreover, the detention occurred after 10 p.m., a time when there were few vehicles and no other pedestrians on the street. Under the circumstances, it was objectively reasonable for Officer Barretto to suspect that these five men were involved in the robbery. We recognize that walking along a major thoroughfare after dark is consistent with lawful activity. “But the possibility that the circumstances are consistent with lawful activity does not render a detention invalid, where the circumstances also raise a reasonable suspicion of criminal activity. The public rightfully expects a police officer to inquire into such circumstances; indeed the principal function of the investigative stop is to resolve that ambiguity.” (People v. Dolliver (1986) 181 Cal.App.3d 49, 56.)
Nevertheless, defendant contends that whatever reasonable suspicion Officer Barretto possessed at the moment of detention vanished when he discovered that defendant was not African American. This contention is likewise without merit.
First, whether defendant Cabrales appeared to Officer Barretto to be African American or Mexican is a question of fact. The trial court’s factual determinations are reviewed under the deferential substantial evidence standard. (Lindsey, supra, 148 Cal.App.4th at p. 1395.) “Evidence is substantial for purposes of this standard of review if it is of ponderable legal significance, reasonable in nature, credible, and of solid value.” (Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935-936 [quotation marks omitted]; see also Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 507.) Photographs taken of defendant the night of the detention were introduced at the suppression hearing. Officer Barretto testified that defendant appeared to be of “mixed” race. The trial court concluded: “He [defendant] could be a dark-skinned Hispanic. But he certainly could at least be someone who’s mixed either with Caucasian or African American.” Substantial evidence supports the conclusion that Officer Barretto did not know for certain that defendant’s race did not match the initial description of the robbers.
Second, and more importantly, even if Officer Barretto was aware at some point during the detention that defendant was Mexican as opposed to African American, this single discrepancy does not dispel the reasonable suspicion which flowed from the totality of the circumstances, i.e., nearness in time to the robbery, located three blocks away from the scene of the robbery, in a group of five, in the direction pointed out by a witness, and no other pedestrians discovered in the area. It is true that once defendant was detained police were required to diligently pursue their investigation in order to confirm or dispel their initial suspicion. (People v. Williams (2007) 156 Cal.App.4th 949, 959-960.) Here, police diligently pursued their investigation by immediately transporting the victim to the detention site to make an identification.
Since Officer Barretto acted in an objectively reasonable manner in stopping and detaining defendant for investigation, the trial court properly denied the motion to suppress evidence obtained during the detention.
II
Defendant’s final contention is that the trial court erred in instructing the jury pursuant to CALCRIM Nos. 200, 220, 222, and 223. Defendant’s complaint focuses on two phrases found in CALCRIM No. 220: “Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. [¶]. . . [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the trial.” (Italics added.) Defendant also bemoans similar language in CALCRIM Nos. 200 [“In deciding whether the People have proved their case beyond a reasonable doubt, you must compare and consider all the evidence that was received throughout the entire trial”], 222 [“You must use only the evidence that was presented in this courtroom”], and 223 [“You must decide whether a fact in issue has been proved based on all the evidence”].
First, defendant’s contention that the “abiding conviction” language in CALCRIM No. 220 is so “archaic and incomplete” as to convey an “insufficient standard of proof” is without merit. In People v. Hearon (1999) 72 Cal.App.4th 1285 (Hearon), we held the same contention to be “conclusively settled adversely to defendant’s position” and catalogued the decisions of each appellate district as consistently rejecting the argument. (Hearon, supra, at pp. 1286-1287; see also People v. Campos (2007) 156 Cal.App.4th 1228, 1239.)
Second, defendant’s claim that these instructions prevented the jury from considering a lack of evidence in deciding whether reasonable doubt existed is also without merit.
“[T]he Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” (Re Winship (1970) 397 U.S. 358, 364 [25 L.Ed.2d 368, 375].) Reasonable doubt may arise from the evidence presented at trial as well as from the lack of evidence. (Johnson v. Louisiana (1972) 406 U.S. 356, 360 [32 L.Ed.2d 152, 158]; People v. Simpson (1954) 43 Cal.2d 553, 566.) Contrary to defendant’s assertions, CALCRIM No. 220 does not instruct otherwise. Indeed, the last sentence of the instruction specifically directed the jury: “Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.” The only reasonable interpretation of this language is that a lack of evidence can lead to a reasonable doubt as to guilt.
As this Court recently explained in People v. Guerrero (2007) 155 Cal.App.4th 1264 (Guerrero): “CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendant’s claim, we consider whether a ‘reasonable juror would apply the instruction in the manner suggested by defendant.’ [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendant’s guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant.” (Guerrero, supra, at pp. 1268-1269; see also People v. Flores (2007) 153 Cal.App.4th 1088, 1093 [“The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt”]; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509 [“The instruction does not tell the jury that it may not consider any perceived lack of evidence in determining whether there is a reasonable doubt as to a defendant’s guilt”].)
Since there is no “reasonable likelihood that the jury applied the instruction[s] in a way that denied fundamental fairness[,]” defendant’s contention to the contrary must fail. (People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157.)
DISPOSITION
The judgment is affirmed.
We concur: SIMS , Acting P. J., RAYE , J.