Opinion
NOT TO BE PUBLISHED
San Francisco County Super. Ct. No. 197333
Reardon, Acting P.J.
Alvin Haynes appeals his conviction, after a jury trial, for receiving stolen property (felony) and resisting a police office (misdemeanor), for which he received a total prison term of six years (double the upper term of three years for the felony). He attacks the sufficiency of evidence to support the conviction for resisting a police officer, and further contends the court abused its discretion in failing to consider relevant mitigating circumstances in sentencing him to the upper term. We find no error and affirm.
The court found true the prior strike allegation (aggravated mayhem), as well as his 19 prior serious felony conviction allegations.
I. FACTUAL BACKGROUND
On the afternoon of August 19, 2005, San Francisco Police Officers Tracy Boes, Kirk Edison and Scott Ryan were in the vicinity of Howard Street and Lafayette Alley looking for appellant. Edison and Ryan were in plain clothes; Edison wore a police badge in a black case on an orange San Francisco Giants necklace. Edison had asked Boes to go to the residential hotel located at 1554 Howard to determine if appellant was staying there. The hotel manager told Boes that appellant lived in room 110.
Edison knew what appellant looked like. He spotted appellant approach the front gate of the hotel and put a key into the lock. Appellant was carrying two laptop computer cases slung over his shoulder or shoulders. He was dressed all in black. Appellant was sweating profusely, “absolutely dripping in sweat.”
Officer Edison asked something like “What’s up, Alvin?” Appellant responded that he was not Alvin. Edison said, “Yes, you are.” Edison grabbed the collar of appellant’s jacket but appellant slipped out of it, dropped the laptop computer cases and fled. Edison and Ryan gave chase and caught appellant at the corner of Lafayette and Natoma. Ryan wrestled appellant to the ground. Officer Boes joined them with the recovered jacket and laptop computer bags.
Appellant was taken into custody. He gave his address as 1554 Howard, apartment No. 110.
Inside appellant’s jacket, Boes found a balled-up handkerchief containing numerous items of jewelry. Each laptop bag contained a laptop computer. One of the cases contained an airplane ticket in the name of Jessica Li. There was also a piece of paper with a telephone number on it. As well, a screwdriver was seized from the front pocket of appellant’s pants; a black knit glove was found in his jacket. There was a matching glove under a bench in the police station where appellant was handcuffed.
Edison called the telephone number, reaching the mother of Jessica Li, who put Edison in contact with her daughter. At Li’s apartment located on California Street, Li identified the bags, computers and most of the jewelry as items missing from her apartment. The apartment had been broken into and rummaged through.
II. DISCUSSION
A. Substantial Evidence Supported the Resisting Police Officer Conviction
1. Introduction
The crime of resisting a police officer requires proof that (1) the defendant willfully resisted, delayed or obstructed an officer who was (2) engaged in the performance of his or her duties; and (3) the defendant reasonably should have known that the person was a police officer engaged in such duties. (Pen. Code, § 148, subd. (a)(1); People v. Christopher (2006) 137 Cal.App.4th 418, 431.) However, a defendant cannot be convicted of an offense against an officer engaged in the performance of official duties if the officer was not acting lawfully at the time. (People v. Simons (1996) 42 Cal.App.4th 1100, 1109.)
Appellant concedes that he “resisted and/or evaded” detention by Officers Edison and Ryan by slipping out of Edison’s grasp and fleeing several blocks before being wrestled to the ground by Ryan. Appellant’s argument is this: Unless the officers had probable cause to arrest him on reasonable grounds for effecting a Terry stop, he was within his rights to walk or run away from the consensual encounter. From this appellant asserts that the issue is whether sufficient evidence supports the finding beyond a reasonable doubt that his detention—Edison’s grabbing the collar of his jacket—was lawful. He maintains that there is no substantial evidence that the officers had an articulable basis for believing he was involved in criminal activity at that juncture.
Terry v. Ohio (1968) 392 U.S. 1, 16.
2. Analysis
A police office may detain a person for questioning or other limited investigation without a showing of probable cause to arrest the person. (Terry v. Ohio, supra, 392 U.S. at p. 21.) The test is whether the officer can point to specific and articulable facts giving rise to a reasonable suspicion that criminal activity may be underway. Reasonable suspicion is a level of suspicion “obviously less demanding than that for probable cause,” a level constituting “considerably less than proof of wrongdoing by a preponderance of the evidence.” (United States v. Sokolow (1989) 490 U.S. 1, 7; People v. Coulombe (2000) 86 Cal.App.4th 52, 56.) Further, the possibility of an innocent explanation for a person’s conduct or activity does not deprive an officer of the capacity to entertain a reasonable suspicion of criminal conduct. (People v. Souza (1994) 9 Cal.4th 224, 233.)
The detention passes scrutiny under Terry and its progeny. Officer Edison spotted appellant as he tried to enter the gate to a residential hotel on Howard Street. Edison knew appellant and believed appellant might be staying in that hotel. Edison’s badge was displayed around his neck, identifying him as a police officer. Appellant was dripping in sweat and had two laptop computer bags slung over his shoulder or shoulders, suggesting that the bags were heavy and indeed contained laptop computers. A residential hotel being at the low end of residential accommodations in which individuals generally live alone in a rented room, it reasonably could strike Officer Edison that the laptop computers appellant appeared to be carrying were not his. Appellant was dressed all in black. He denied being the person Edison knew him to be. It would be reasonable for the officer to conclude that appellant wanted to hide his identity, suggesting a consciousness of guilt. (See People v. Superior Court (Price) (1982) 137 Cal.App.3d 90, 97 [fact that at least two of four suspects gave false names to police connoted consciousness of guilt].) The facts testified to by Officer Edison support a reasonable suspicion that appellant was engaged in illegal activity with respect to the computers.
Appellant argues that the instruction delivered to the jury requires proof of the officer’s actual, subjective reasons for believing criminal activity was afoot. The jury was instructed on the lawful performance of an officer’s duties in the language of CALCRIM No. 2670 as follows: “A peace officer may legally detain someone if . . .: [¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the same suspicion.” (CALCRIM No. 2670 (2007-2008 ed.) p. 615.)
As the People point out, the validity of the lawfulness of a police detention under the Fourth Amendment is subject to an objective standard and does not turn on the actual motivations of the officer in question. (Whren v. United States (1996) 517 U.S. 806, 813.) Appellant concurs in this principle of law. Here, Officer Edison pointed to specific, articulable facts that objectively justified the brief detention of appellant. He did not utter the magic words “I entertained a reasonable suspicion that appellant was carrying two laptop computers and that he had possession of these laptops under legally questionable circumstances.” However, the clear inference from his testimony is that he did harbor such suspicions. That is enough.
B. The Court Properly Sentenced Appellant
For the sentencing hearing, appellant’s counsel submitted reports from a clinical psychologist and a court alternative specialist with the public defender’s office. These documents underscored appellant’s addiction, a childhood fraught with severe physical parental abuse, and the absence of any treatment or intervention. At the hearing, counsel continued this theme: “[S]ociety has I believe let this man down in its failure to intervene, failure to afford this man an opportunity.”
The trial court indicated it reviewed and considered appellant’s sentencing memorandum and reports but found that there were no circumstances in mitigation “under the California Rules of Court.” The court went on to justify the upper term on the conviction for receiving stolen property on the basis of aggravating factors relating to appellant’s criminal history (numerous prior adult convictions, served a prior prison term, on parole when crime committed and prior unsatisfactory performance on parole). Appellant sought rehearing in light of the decision in Cunningham v. California (2007) 549 U.S. ____ [127 S.Ct. 859]. The court declined to modify the sentence, relying on appellant’s numerous prior convictions which were found to be true.
Now appellant urges that the sentencing court abused its discretion by failing to properly conduct a comparative analysis of all applicable circumstances in aggravation and mitigation. Appellant claims the defense evidence showed that (1) he suffered a psychological condition due to an abnormal and extremely abusive childhood; and (2) he has a lengthy history of untreated narcotics addiction which motivated past criminal conduct. These, appellant contends, fit within circumstances in mitigation under the California Rules of Court, specifically rule 4.423(a)(4) (criminal conduct partly excusable for some reason not amounting to a defense); and rule 4.423(b)(2) (defendant suffered from mental or physical condition which significantly reduced culpability).
The assertion that a defendant’s conduct is partially excusable or that he or she suffers from a physical or mental condition which significantly reduces culpability is just that—an assertion. It is the sentencing court that determines from the facts and circumstances whether the cited mitigating circumstances in fact were established. (People v. Regalado (1980) 108 Cal.App.3d 531, 538-539.) The issue is whether the record compels the conclusion that the cited mitigating factors were established. Here, the record shows that appellant did receive some treatment for his addiction. Specifically, the probation officer’s report indicated that appellant participated in an inpatient drug program for two months in 2003, and was in another inpatient program for three months, apparently when released from parole. Appellant was 49 at the time and had been using heroin on a daily basis since he was 15. We cannot say that appellant’s failure to overcome this long-established habit compelled the conclusion that his addiction was a partial excuse not amounting to a defense. Nor can we say that the sentencing court was required to conclude that his abusive childhood significantly reduced his culpability for crimes committed over 40 years later. The trial court implicitly concluded that appellant’s addiction did not partially excuse the crime, nor did his suffering from childhood abuse significantly reduce his culpability. The record supports this implicit conclusion. (See id. at p. 539.) The trial court was neither required to find the asserted circumstances unarguably mitigating, nor to accord them any particular weight. (See ibid.)
III. DISPOSITION
The judgment is affirmed.
We concur: Sepulveda, J., Rivera, J.
The information charged appellant with first degree burglary, receiving stolen property, possession of burglar’s tools, and resisting an officer. It also charged 19 prior felony convictions as strikes and as convictions for serious felonies. The People moved to dismiss 18 of the prior strike allegations, and the court ruled accordingly. The jury found appellant not guilty of possessing burglary tools, but could not reach a verdict on the burglary charge. On the People’s motion, the court dismissed this count.