Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, Ct. No. SCD197997 Albert T. Harutunian III, Judge.
BENKE, J.
BACKGROUND
On April 1, 2006, at about 3:00 p.m. San Diego Police Officers David Winans and Javon Durham were in their patrol cars at the intersection of Orange and Chamoune Avenues. A vehicle driven by appellant James Sterling Hogan drove through the four-way stop sign without stopping. Appellant waved to the officers as he drove through the intersection.
Officer Durham activated the lights on his vehicle and followed appellant's car. A block away, appellant stopped his car at the curb and apologized to the officers for running the stop sign. Officer Winans saw appellant bend over and down in the vehicle as if doing something at the floor. Officer Durham saw appellant reach behind into the backseat area of the car.
Appellant remained in the car as Officer Durham approached. The officer saw that appellant was fidgety and sweating profusely. Appellant's lips were chapped, his fingertips were burnt and his hands were shaking. Officer Durham concluded appellant was under the influence of a drug. Consistent with this conclusion, the officer observed appellant's eyelids were fluttering rapidly and the pupils of his eyes were dilated; both symptoms of cocaine base intoxication.
When appellant was unable to produce his driver's license, he was ordered out of the car, and he complied. He was told to sit on the curb. He sat down, then stood up again. He was told to sit down and remove his tennis shoes. Officer Winans watched him as his car was searched.
Appellant removed his left shoe and quickly inserted his right hand into that tennis shoe. As he withdrew his hand from the shoe, the officer saw appellant holding a small plastic piece tied at one end. He rested his hand along the side of his right leg. When he moved his hand to his lap, he was no longer holding the plastic piece. Officer Winans believed the plastic piece might hold contraband. Because of this he grabbed appellant's wrists and ordered him not to move. As a result, appellant tensed up and pulled away from the officer, trying to free himself from the officer's grip. Appellant then leaned over the plastic piece, which was on the ground. It appeared to the officer that he was trying to cover the piece of plastic with his body. The officer ordered appellant to stop moving. However, four times appellant pulled away from the officer, leaning over the piece of plastic.
Officer Durham assisted Officer Winans in attempting to handcuff appellant. As Officer Winans tried to place the handcuffs on behind appellant's back, appellant pulled away, tensed his muscles and pulled away, preventing the officer from handcuffing him. The officers struggled with appellant for about two minutes. They were finally able to place him in a wrist lock and place him on his stomach in order to get him handcuffed. Then they lifted him to his feet and walked him to the patrol car. At the car, appellant became calm and told the officers if they got rid of the drugs and glass pipe, he would give them the name of his drug supplier. He also told them he had been "doing" cocaine all week. He told Office Durham he would not be going to jail, but rather he would get drug court instead.
Officer Winans told appellant he was being arrested for possessing a controlled substance. In response, appellant told the officer he was diabetic and was not feeling very well. Paramedics were called to the scene. John Haley, one of the paramedics who arrived, saw symptoms of cocaine intoxication in appellant, including that appellant was fidgety, restless, jumping around and twitching. However, Haley assessed appellant to be alert and able to understand his surroundings. His heart rate was assessed to be elevated. Haley took a drop of blood from appellant and determined his blood sugar level was normal. Appellant told Haley he had ingested too much cocaine and inhaled cocaine about an hour before being treated by Haley.
As he was receiving treatment, appellant began falling to the ground but braced himself so as not to hit his head. He closed his eyes and shook for about 30 seconds. After he stopped shaking, appellant sat up and the paramedics continued treating him. Appellant then began complaining he was having chest pains. An ambulance was called to the scene. He was calm as the ambulance transported him to a hospital. The officers retrieved the piece of plastic and followed the ambulance to the hospital.
At the hospital, appellant was combative with the officers and with the hospital's staff and nurses. He removed the heart monitor from his chest, cursed and yelled at hospital nurses, staff and the officers, and threw a juice container into the hallway. He refused to obey the officers' directive that he stay on the gurney. Because of this the officers had to handcuff both of appellant's hands to the gurney. At one point Officer Durham had to place appellant in a wrist lock and physically lift him onto the gurney.
The piece of plastic found at the scene of appellant's arrest contained .25 grams of cocaine base. A glass pipe with a brillo pad stuck to it was found in a bag on the driver's side floorboard of appellant's car. Officer Durham described the pipe as being used to smoke cocaine base. Appellant had cocaine base in his blood at the time he was arrested.
Appellant was charged in count 1 with possession of a controlled substance in violation of Health and Safety Code section 11350, subdivision (a). In count 2 he was charged with driving under the influence of drugs with a prior conviction for an offense listed in Vehicle Code section 23550, subdivision (a), in violation of Vehicle Code section 23152, subdivision (a). In count 3 appellant was charged with being under the influence of a controlled substance in violation of Health and Safety Code section 11550, subdivision (a), and in count 4 he was charged with resisting an officer in violation of Penal Code section 148, subdivision (a)(1). One strike prior and two prison priors were also charged.
All further statutory references are to the Penal Code unless otherwise specified.
Following a bifurcated jury trial, appellant was found guilty as charged. The court found true the prior conviction alleged with respect to count 2, raising the charge to a felony. The court also found a strike prior, prison prior and probation prior to be true.
The court denied appellant's motion to strike the prior strike and sentenced him to a total term of imprisonment of six years and four months. He filed a timely notice of appeal.
DISCUSSION
I
Appellant alleges there is insufficient evidence he violated section 148, and because of this the trial court erred in denying his motion to dismiss pursuant to section 1118.1. We disagree.
On a sufficiency of the evidence claim, this court reviews the record in the light most favorable to the judgment to determine if the record contains substantial evidence from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) We may not substitute our judgment for that of the fact finder. (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139.) Nor can we reweigh the evidence. (People v. Proctor (1992) 4 Cal.4th 499, 529.)
In order to find appellant guilty of violating section 148, the jury needed to find the officers were legally performing their duty, appellant resisted or delayed the officers in their duty and that appellant knew the police officers were performing their duty. (§ 148.)
As the Attorney General points out, violation of section 148 is a general intent crime. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) It is most often applied to physical acts of the defendant. (Ibid.; People v. Allen (1980) 109 Cal.App.3d 981, 986-987.) Even without consideration of his attempt to hide the contraband he was carrying in his tennis shoe, the evidence supports the conclusion appellant resisted arrest. At the scene of the stop, he tensed up when the officers tried to handcuff him, resulting in a nearly two-minute struggle before the officers were able to do so. When he was taken to the hospital, he was combative and had to be physically restrained by the officers in order to keep him under control and complete their tasks.
Likewise, the trial court did not err in denying appellant's motion brought pursuant to section 1118.1. On appeal, we independently review the trial court's ruling. (People v. Cole (2004) 33 Cal.4th 1158, 1213.) At that point in the trial, the People had established that for at least two minutes appellant physically resisted arrest at the scene of the auto stop and was so belligerent and uncooperative at the hospital the officers needed to handcuff him to the hospital gurney. There was no error in denying the dismissal motion brought pursuant to section 1118.1.
II
Appellant argues the prosecutor erred in presenting three distinct legal theories to the jury, and we are unable to determine which of the three was relied on. Again, we disagree with appellant's analysis. Three different factual bases were presented for the violation of section 148: appellant hid the cocaine from the officers, he resisted arrest for two minutes at the scene of the car stop, and he was belligerent and needed physical restraints at the hospital. The jurors were correctly instructed that in order to convict appellant of resisting arrest, they all needed to agree on one factual basis for the plea. The prosecutor argued consistently with the instruction. We are required to assume the jury understood and carried out the instructions. (People v. Holt (1997) 15 Cal.4th 619, 662.)
Appellant relies upon People v. Guiton (1993) 4 Cal.4th 1116 and People v. Green (1980) 27 Cal.3d 1. However, they are inapposite because they involve presentation of alternate legal theories, not alternate factual bases.
There was no error in presentation of legal theories.
III
Appellant's final contention is that the trial court had insufficient evidence before it to find he was previously convicted and served a prior prison term in case No. SCD137295. Specifically, he urges the fingerprint cards submitted to the court, while bearing his prints, did not contain information connecting that card to that particular conviction and, further, the abstract of judgment bore an illegible fingerprint. He requests that we find the evidence supporting the prior conviction to be insufficient, the sentence imposed pursuant to section 667.5 reversed and that we remand this case for resentencing.
Appellant did not raise this argument at trial. In any event, the evidence was sufficient. In order to suffer the sentencing enhancement imposed under section 667.5, it must be demonstrated the defendant (1) was previously convicted of a felony, (2) was imprisoned as a result of the conviction, (3) completed the term in custody and (4) did not remain free for a period of five years of prison custody and commission of any new offense resulting in a felony conviction. (People v. Tenner (1993) 6 Cal.4th 559, 563.) On review, we determine whether there is substantial evidence to support the trier of fact, and in performing this task, we examine the record in the light most favorable to the judgment and presume every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Mincey (1992) 2 Cal.4th 408, 432.) A certified copy of the prison record satisfies the requirement of proving the prior conviction (People v. Ruiz (1999) 69 Cal.App.4th 1085, 1090, fn. 2), and reasonable inferences may be drawn from the certified records (People Williams (1996) 50 Cal.App.4th 1405, 1413).
Here, the trial court received certified documents pertaining to appellant's conviction and prison sentence. A "prison packet," which included a card with appellant's fingerprints, was also received into evidence. Moreover, a fingerprint expert testified he reviewed the certified documents and prison packet and concluded they bore appellant's fingerprints. A print on the abstract of judgment inside the packet had the same fingerprint pattern as appellant's known prints. In addition, appellant's signature on his guilty plea form in case No. SCD137295 is similar to the signature on his fingerprint card in the state prison packet. Finally, appellant's date of birth appears on the felony complaint, the mug shot profile/face card, his fingerprint card on file at the sheriff's office, on his card at the FBI and on his card on file with the California Department of Justice. In addition, appellant's full name appears on documents in the prison packet, including the amended information, the abstract of judgment, the prison packet cover sheet, the fingerprint card on file with the Department of Corrections and on the fingerprint card on file with the state Department of Justice. This provided substantial evidence of the prior offense.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.