Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County No. SCD197549, William H. Kennedy and Michael T. Smyth, Judges.
McCONNELL, P. J.
A jury convicted William Daughtery of selling cocaine base (Health & Saf. Code, § 11352, subd. (a); Pen. Code, § 1203.073, subd. (b)(7)) and possessing cocaine base for sale (Health & Saf. Code, § 11351.5). In addition, Daughtery admitted to having a prior strike conviction. (Pen. Code, §§ 667, subds. (b)-(i), 668, 1170.12.) The trial court sentenced Daughtery to a term of eight years in prison, consisting of the middle term of four years for the charge of selling cocaine base, doubled for the prior strike conviction finding. The trial court stayed imposition of sentence on the remaining charge.
The information alleged Daughtery had two prior strike convictions. Before trial, at the prosecution's request, the trial court dismissed one of the allegations in the interest of justice.
Daughtery appeals, arguing the trial court erred by denying Daughtery's motion to suppress evidence and motion in limine to dismiss the information, by excluding evidence of a prior bad act by the arresting officer, and by declining to dismiss Daughtery's prior strike conviction. We affirm the judgment.
DISCUSSION
I.
Trial Court Did Not Err by Denying Daughtery's Motion to Suppress Evidence and Motion in Limine to Dismiss the Information
A. Factual and Procedural Background for the Motion to Suppress Evidence
Daughtery filed a pretrial motion to suppress the evidence obtained at the time of his arrest, arguing the San Diego police officers did not have probable cause to arrest him and used excessive force to obtain the evidence. At the hearing, the prosecution presented evidence establishing Acting Detective Roberto Lemus approached Daughtery and purchased $20 worth of rock cocaine. Lemus signaled the sale's completion and relayed Daughtery's description through a one-way voice transmitter. Lemus described Daughtery as a black male, wearing a dark jacket, black pants, and black shoes, walking east on J Street.
The parties stipulated to the use of Lemus's preliminary hearing testimony. Lemus also provided live testimony.
After the sale, as Lemus and Daughtery parted company, Lemus saw Daughtery put something in his mouth. Lemus followed Daughtery along a parallel route and kept sight of Daughtery until Officer Wilson contacted Daughtery. Lemus later positively identified Daughtery as the person who had sold him the rock cocaine.
Officer Jose Chavez received Lemus's transmissions and radioed Daughtery's description to the other officers assisting with the undercover operation. In addition, Chavez heard Sergeant Griffin radio that Daugherty was wearing glasses and had turned onto 16th Street. Chavez also heard Griffin radio to an officer, "That's the guy right there."
Officer Wilson heard the radio broadcasts and saw Daughtery turn from J Street onto 16th Street. Daughtery fit the suspect's description, location, and direction and mode of travel. There was no one else in the area.
Wilson used his patrol car to block Daughtery's path. He ordered Daughtery to stop and noticed Daughtery was chewing something. Daughtery did not stop. Instead, he quickened his pace. To prevent Daughtery from running away, Wilson grabbed Daughtery and took him to the ground. Daughtery ended up facedown in a prone position with his hands underneath his body, Wilson's arm around his neck, and Wilson's torso on top of him. Wilson kept his arm around Daughtery's throat so he could apply a carotid restraint and disarm him if he had a weapon.
After taking Daughtery to the ground, Wilson repeatedly ordered Daughtery to put his hands out. Because Wilson believed from his training and experience Daughtery was probably chewing drugs in an attempt to destroy evidence, he also repeatedly ordered Daughtery to spit out the drugs. Daughtery did not comply with Wilson's orders.
Shortly after Wilson contacted Daughtery, Officer Tagaban arrived to assist Wilson. She observed Daughtery resisting Wilson by kicking his feet and moving his body around. She also noticed Daughtery's hands were not visible, which created a safety concern, and she ordered him to put his hands behind his back. To distract him into complying with her commands, she struck his left shoulder twice with her flashlight. When he did not comply, she struck his left shoulder two or three more times. He spat out a chewed plastic bindle, but he did not put his hands behind his back. She then struck his left triceps two times. After that, she and Wilson were able to handcuff him. They subsequently pried the prerecorded $20 bill Lemus used for the transaction from Daughtery's clenched hands.
During the encounter, Wilson never applied pressure to Daughtery's throat, choked Daughtery, or used a carotid restraint, and he never lost consciousness. After Daughtery's arrest, Tagaban noticed some faint red marks on Daughtery's left shoulder and one of his booking photos showed a bump on his head.
Daughtery offered conflicting evidence. Stephen Montgomery, who was in the back of Wilson's patrol car during Daughtery's arrest, testified Wilson cornered Daughtery with the patrol car and he put his hands up in surrender. Wilson then used a choke hold on Daughtery, causing him to pass out and fall to the pavement on his side and for foam and saliva to come out of Daughtery's mouth. Two minutes later, Tagaban arrived, jumped out of her patrol car, and hit Daughtery with her flashlight five or six times on his shoulder while Wilson tried to revive Daughtery by shaking him. Montgomery further testified Daughtery did not spit out a bindle and did not have money in his hand when Wilson and Tagaban arrested him.
Montgomery had been arrested earlier in another similar undercover operation.
Daughtery testified he was walking to the store to get some water when Wilson pulled up in a patrol car and blocked his path. Daughtery threw up his hands in surprise. Wilson got out of the patrol car, grabbed him by the throat, and squeezed his neck until he lost consciousness. Daughtery collapsed to his knees, fell to the ground on his back, and smashed his head into the sidewalk. When he regained consciousness, Wilson was shaking him and banging his head against the sidewalk while Tagaban was hitting him with a flashlight, saying, "Spit it out, spit it out." The officers subsequently arrested him and, as they were bringing him to his feet, he spit out some foamy white phlegm. He testified, as a result of the encounter, he sustained a bump on his head, a torn rotator cuff, and unspecified neck and spinal injuries. He also developed clinical depression.
The parties stipulated Daughtery's hearing testimony could only be used for impeachment purposes at trial. Daughtery did not testify at trial.
After the hearing, the trial court denied the suppression motion. The trial court noted the resolution of the motion depended entirely upon the credibility of the witnesses and determined the prosecution witnesses testified more credibly than the defense witnesses. Accordingly, the trial court found Wilson had probable cause to arrest Daughtery based on the collective knowledge of all of the officers involved in the incident. In addition, the trial court found Wilson and Tagaban did not use excessive force when arresting and searching Daughtery.
B. Factual and Procedural Background for the Motion in Limine to Dismiss the Information
As an adjunct to the suppression motion, Daughtery filed a motion in limine to dismiss the information, arguing the force used by Wilson and Tagaban violated his constitutional right to due process of law because the force used "shocks the conscience." The trial court deferred ruling on the motion until after the close of trial evidence.
Different trial judges decided the motion to suppress evidence and the motion in limine to dismiss the information.
The trial evidence included the testimony of two witnesses who did not testify at the suppression hearing. Ronald Tyson, who was in the back of Tagaban's patrol car during Daughtery's arrest, testified Wilson had Daughtery on the ground with his knee in Daughtery's chest when Tagaban arrived to assist Wilson. Daughtery was not resisting and had already been handcuffed. Tagaban got out of her patrol car and yelled at Daughtery to "Spit it out," while Wilson choked him and she beat him with a flashlight or baton at least 12 times until his face was full of blood. Tyson further testified Daughtery did not spit out a bindle and did not have money in his hand when Wilson and Tagaban arrested him.
Tyson had been arrested along with Montgomery during the earlier undercover operation.
Dr. James Vevaina, a specialist in pulmonary diseases, testified a person could become unconscious within a few seconds if even minimal pressure is applied to the person's carotid sinus or carotid artery. Dr. Vevaina also testified it would be very unusual for saliva and foam to come out of the mouth of a person who had been rendered unconscious by a carotid restraint.
After listening to the trial evidence and considering unspecified portions of the record from the suppression motion, the trial court denied the motion in limine to dismiss the information. The trial court found Wilson and Tagaban did not, in fact, brutalize Daughtery.
C. Wilson Had Probable Cause to Arrest Daughtery
Daughtery contends the trial court should have granted the motion to suppress evidence because the broadcasted description of the suspect who sold Lemus drugs was not sufficient to provide Wilson with probable cause to arrest Daughtery. We disagree.
A law enforcement officer may arrest a person based on information furnished by other law enforcement officers as long as the collective knowledge of the officers provides probable cause for the arrest. (Remers v. Superior Court (1970) 2 Cal.3d 659, 666-667; People v. Ramirez (1997) 59 Cal.App.4th 1548, 1553; People v. Alcorn (1993) 15 Cal.App.4th 652, 655.) Although the arresting officer's reliance on the information provided by the other officers must be reasonable, the arresting officer does not need to know the nature or extent of the probable cause. (People v. Ramirez, supra, at pp. 1554-1555.) "[T]he important question is not what each officer knew about probable cause, but how valid and reasonable the probable cause was that developed in the officers' collective knowledge." (Id. at p. 1555.) Consequently, courts look at the total law enforcement activity to determine the constitutionality of the arrest. (People v. Alcorn, supra, at p. 656.)
Here, the collective knowledge of the officers involved in Daughtery's arrest included Lemus's knowledge of his hand-to-hand transaction with Daughtery. This knowledge was sufficient to supply probable cause to arrest Daughtery. Wilson did not need independent probable cause to believe Daughtery was actually the suspect as long as Wilson acted in reasonable reliance on the information provided to him about the suspect's description, location, and travel route. (See, e.g., People v. Ramirez, supra, 59 Cal.App.4th at pp 1554-1555.) Wilson's reliance was reasonable in this case because the information he acted on was factual and was based on the personal observations of the other officers participating with him in a coordinated undercover operation. (See, e.g., People v. Poehner (1971) 16 Cal.App.3d 481, 488-489.) Therefore, the trial court did not err in denying Daughtery's motion to suppress on this ground.
D. Wilson and Tagaban Did Not Use Unreasonable Force to Obtain Evidence From Daughtery
Daughtery further contends the trial court should have granted the motion to suppress evidence and the motion in limine to dismiss the information because Wilson and Tagaban used excessive force to obtain the evidence from him. We disagree with this contention as well.
In denying the motion to suppress evidence, the trial court found Wilson did not choke or use a carotid restraint on Daughtery. The trial court also found Tagaban did not needlessly beat Daughtery with her flashlight, but rather used her flashlight tactically to distract Daughtery into complying with her commands. Similarly, in denying the motion in limine to dismiss the information, the trial court found Wilson and Tagaban did not brutalize Daughtery. We defer to these factual findings as they are unarguably supported by substantial evidence and we consider the constitutionality of Wilson's and Tagaban's actions in light of them. (People v. Glaser (1995) 11 Cal.4th 354, 362; People v. Duncan (2008) 160 Cal.App.4th 1014, 1017; People v. Cappellia (1989) 208 Cal.App.3d 1331, 1336.)
To be constitutional, the force used to recover evidence from a person must be reasonable under the circumstances. In assessing reasonableness, we consider whether the police officers had probable cause to conduct the search, whether the force used harmed the person's dignitary interest in personal privacy and bodily integrity, and whether the force used threatened the person's safety or health. (Winston v. Lee (1985) 470 U.S. 753, 760-763; People v. Fulkman (1991) 235 Cal.App.3d 555, 562-563; People v. Cappellia, supra, 208 Cal.App.3d at pp. 1337-1338.)
Here, Wilson and Tagaban had probable cause to recover the plastic bindle from Daughtery's mouth because Daughtery had just conducted a hand-to-hand narcotics transaction with Lemus, Lemus saw Daughtery put something in his mouth afterwards, Wilson saw and heard Daughtery chewing something, and Wilson knew from his training and experience narcotics dealers frequently hide narcotics in their mouths. (See, e.g., People v. Johnson (1991) 231 Cal.App.3d 1, 14-15; People v. Cappellia, supra, 208 Cal.App.3d at p. 1338.) In addition, the force used by Wilson and Tagaban did not significantly harm Daughtery's dignitary interest in personal privacy and bodily integrity because the force used did not involve an intrusion into his body. (See Winston v. Lee, supra, 470 U.S. at pp. 761-762; People v. Cappellia, supra, 208 Cal.App.3d pp. 1336-1337.) Finally, the force used by Wilson and Tagaban did not threaten Daughtery's safety and health. Wilson did not use a carotid restraint on Daughtery, did not choke him, and did not apply pressure to his throat. Likewise, Tagaban did not indiscriminately beat Daughtery. She struck him no more than seven times in a controlled, tactical manner, pausing every two or three strikes to allow him to comply with her commands and stopping altogether once he had done so. She used only the force necessary to achieve her objectives of arresting Daughtery and preventing him from destroying evidence. Therefore, the trial court did not err in denying the motion to suppress evidence or the motion in limine to dismiss the information on this ground.
II.
Trial Court Did Not Abuse Its Discretion by Excluding Evidence of Officer Wilson's Prior Bad Act
The prosecution brought an in limine motion to exclude evidence relating to Wilson's arrest of Jose Castro a few years earlier. According to Castro, he was sitting in his truck in front of a bakery talking to an acquaintance, William Pressley, when a patrol car pulled up behind him. Wilson and another officer got out of the patrol car and approached the truck. While Wilson asked Castro what he was doing, Wilson's partner opened the truck door and started coming at Castro. Castro put his palms up and ducked his head down. Then, both officers started hitting him in the head with their fists as Wilson repeatedly said, "Spit it out, spit it out." Wilson's partner sprayed Castro with pepper spray and Wilson yanked him out of the truck, threw him to the ground, and handcuffed him. Castro admitted he had two small, loose pieces of rock cocaine in his lap, but denied having any drugs in his mouth. Pressley corroborates Castro's claims.
According to Wilson, he suspected Pressley and Castro were conducting a narcotics transaction because they were in an area of high narcotics activity and Pressley was a known narcotics dealer. Wilson and his partner approached Castro's truck to investigate. While speaking to Castro, Wilson noticed a brown paper bindle cupped in Castro's hand. He asked Castro what he had in his hand and Castro dropped the bindle between the seat and center console. Wilson asked Castro to get out of the car and Castro reached down between the seat and the console to grab the bindle. Wilson started pulling Castro out of the truck and Castro attempted to put the bindle in his mouth. Meanwhile, Wilson's partner entered the truck from the passenger side and put his hand in front of Castro's mouth and deflected the bindle. At some point, he also sprayed Castro with pepper spray. Castro bit the officer's finger prompting Wilson to strike Castro in the left temple with his fist. Castro then reached into the backseat and Wilson pulled his gun because he thought Castro might be reaching for a weapon. After Wilson determined Castro had reached for the bindle instead of a weapon, Wilson holstered his gun. Castro subsequently attempted to bite Wilson's hand and Wilson struck the back of Castro's head two times with his fist. Wilson's partner also struck Castro with his fists. After a bit more struggling, Wilson and his partner were able to handcuff Castro and remove him from the truck. Wilson's partner impounded numerous pieces of rock cocaine found in the truck, but not any identified as being in a bindle.
The trial court granted the motion, finding the evidence was inadmissible propensity evidence under Evidence Code section 1101. The trial court further found, even if the evidence was admissible under Evidence Code section 1101, the evidence was inadmissible under Evidence Code section 352 because the risk of undue prejudice and undue consumption of time substantially outweighed the evidence's relevance.
Daugherty contends the trial court erred in excluding the evidence because it was admissible under Evidence Code section 1101, subdivisions (b) and (c) to show Wilson's intent and motive, to cast doubt on Wilson's credibility, and to support Daughtery's defense that he did not have a bindle of cocaine in his mouth as police claimed. Daughtery further contends the trial court erred in excluding the evidence under Evidence Code section 352 because the evidence was extremely relevant to Wilson's credibility and there is no support for the trial court's conclusion admission of the evidence would have been unduly prejudicial or time consuming.
We review trial court's ruling for abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230.) We conclude the trial court did not abuse its discretion in this case.
Evidence of a person's character, including evidence the person committed a prior bad act, is not admissible to show the person behaved in conformity with that character on a particular occasion. Nonetheless, the evidence may be admitted to prove some other material fact, such as motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident. (Evid. Code, § 1101, subds. (a), (b); see also, Cal. Law Revision Com. com., 29B Pt. 3 West's Ann. Evid. Code (1995 ed.) foll. § 1101, p. 438.)
Here, Daughtery sought to admit evidence of Wilson's arrest of Castro to show Wilson had the "intent and motive" to violently attack Daughtery and then justify the attack by falsely claiming Daughtery had a bindle of cocaine in his mouth. Notwithstanding Daughtery's attempt to characterize his purpose in permissible terms, he plainly sought to admit the evidence to show Wilson has a propensity for behaving in a certain manner with persons suspected of narcotics crimes and, by inference, he behaved in that manner with Daughtery. This is the exact purpose prohibited by Evidence Code section 1101, subdivision (a). Consequently, the trial court did not abuse its discretion by excluding the evidence under this section. In light of this conclusion, we need not consider whether the trial court properly excluded the evidence under Evidence Code section 352.
III.
Trial Court Did Not Abuse Its Discretion by Denying Daughtery's Motion to Dismiss His Prior Strike Conviction
At the sentencing hearing, Daughtery invited the trial court to dismiss the prior strike conviction finding in furtherance of justice under Penal Code section 1385. The trial court declined to do so, finding the case was not unusual in comparison to similar cases and did not fall outside the letter or spirit of the applicable sentencing statutes, particularly since the trial court had previously dismissed a separate prior strike conviction allegation in furtherance of justice at the request of the prosecution.
Daughtery contends the trial court abused its discretion in declining to dismiss the prior strike conviction finding because the relevant factors weighed in favor of dismissal. Specifically, he contends his current crime was relatively minor and would have likely warranted probation absent his prior convictions. In addition, his last felony conviction occurred in 1989 and he was discharged from parole for that conviction in 1999. His only interim conviction was for an infraction, originally charged as a misdemeanor, involving possession of drug paraphernalia. Moreover, he has served in the United States Navy, has completed many educational classes to improve his prospects, and has positive personal and work references.
In determining whether to dismiss a prior strike conviction finding under Penal Code section 1385, the trial court must consider "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes law's] spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.) A trial court does not abuse its discretion in declining to dismiss a prior strike conviction finding unless the trial court's decision is so irrational or arbitrary that no reasonable person could agree with it. (People v. Carmony (2004) 33 Cal.4th 367, 377.) Where the record shows that the trial court balanced the relevant factors and reached an impartial decision conforming to the spirit of the law, we will affirm the trial court's ruling, even if we might have ruled differently. (Id. at p. 378.)
In this case, the trial court based its decision on Daughtery's serious and violent criminal history, his prior poor performance on parole, and his continued criminal activity despite his prior incarcerations and efforts to improve himself through educational training. These were appropriate factors for the trial court to consider and nothing in the record shows the trial court acted irrationally, arbitrarily, or with partiality. Accordingly, the trial court did not abuse its discretion in declining to dismiss the prior strike conviction finding.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HALLER, J. O'ROURKE, J.