Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 210665.
Jones, P.J.
A jury convicted Eddy Medrano (defendant) of a misdemeanor count of resisting, obstructing, or delaying a peace officer in the attempted discharge of his duties. (Pen. Code, § 148, subd. (a)(1).) He appeals from the judgment of conviction, contending substantial evidence does not support two essential elements of the offense, namely, that his resistance was willful and that the officer was acting lawfully. (CALCRIM No. 2656.) In addition, defendant maintains the trial court erred in failing to instruct the jury that an officer who detains an individual without a reasonable suspicion of criminal activity is not acting lawfully. We reject these contentions and affirm the judgment.
All further statutory references are to the Penal Code unless otherwise specified.
factual and procedural background
As is relevant here, defendant was charged by information with two felony counts, including driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)) (count I), and driving with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b)) (count II), and a misdemeanor count of resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)) (count III). Defendant pleaded not guilty to all counts.
The case proceeded to a three-day jury trial. After deliberating for 45 minutes, the jury acquitted defendant on counts I and II but convicted him on count III. The trial court imposed a suspended sentence and three years’ probation, and ordered defendant to complete an alcohol rehabilitation program, submit to alcohol testing, and pay a citation fee.
Defendant filed a timely notice of appeal from his conviction.
The following evidence was presented at trial:
On May 29, 2009, at 9:11 p.m., defendant’s wife called 911 from her cell phone, reporting that her Acura SUV (the SUV) had run out of gas and was disabled on Highway 280. California Highway Patrol (CHP) Officer Victor Ruiz responded to the call in a marked CHP patrol vehicle, wearing his CHP uniform. He found the SUV disabled on the right shoulder of the elevated portion of Highway 280 southbound, just north of Highway 101 in San Francisco. The shoulder was narrow, a little over eight feet wide, and the driver’s side of the SUV was less than a foot from the solid white line separating the shoulder from the roadway. Traffic was not heavy, but it was continuous—“there [were] plenty of cars there.” Officer Ruiz parked about 10 feet behind the SUV, exited his patrol car, and walked around the rear of his vehicle, approaching the SUV on the “off-traffic” side. He left his headlights on, and activated a white spotlight on top of his car. There are no streetlights on this portion of Highway 280, but “there’s lights around, so you see a little bit but not much.”
The passenger-side door of the SUV was three feet at most from the concrete barrier, so Officer Ruiz had to approach it “sideways.” Defendant’s wife, who was eight-months pregnant, was seated in the passenger seat, and defendant was in the driver’s seat. The officer spoke with them for around 20 seconds and noticed an odor of alcohol coming from inside the SUV. The officer “advised them to keep their seat belts on and stay in the vehicle, and [he would] be calling for a tow truck.” He did not tell them they were under arrest or under investigation for any crime.
At the preliminary hearing, Ruiz said he told the SUV’s occupants to put on their seat belts. He did not recall at trial whether they had their seat belts on.
Officer Ruiz returned to his patrol vehicle and used his radio to request a tow truck. He turned off the vehicle’s spotlight and waited inside for the tow truck for at least 25 minutes. Around that time, he saw defendant exit the SUV into the lanes of traffic and walk around the front of the SUV, out of sight. After waiting for a few cars to pass by, the officer exited and walked around the rear of his car in the direction of the SUV, again approaching on the “off-traffic” side. Defendant was out of Ruiz’s line of sight for 10 to 15 seconds, but when the officer rounded the rear of his patrol car, he saw defendant again “some distance ahead of the [SUV], ” “around a hundred feet, estimated” ahead of the SUV on the right shoulder. Defendant was “continuing southbound on the shoulder... away from [the officer].”
The roadway in front of the SUV was “pretty straight.”
Officer Ruiz navigated his way between the SUV and the concrete barrier and ran towards defendant, yelling “[a]s loud as [he] could” at least four times: “ ‘Stop. Come back. Stop. Stop. Stop[.]’ ” Defendant did not look towards the officer or give any response; he continued south at the same pace. Ruiz stopped 30 to 50 feet past the SUV, realizing he was “way too far out of cover from traffic as well as on an elevated freeway.” When he decided to turn back, defendant was 50 to 60 feet away.
Officer Ruiz returned to the SUV and asked defendant’s wife if he had been drinking. She had been “relatively calm” when Ruiz first saw her but was now “a bit choked up and had tears in her eyes.” Ruiz used his portable radio to report “that the driver was on foot southbound on 280” and request units to stop traffic so he could “drive up and contact” defendant.
One responding officer stopped all southbound lanes of traffic, while another officer, Sergeant Jason Reardon, approached defendant. Reardon stopped his police motorcycle 20 feet behind defendant, who was now between a quarter mile and a half mile from the SUV. Reardon activated his red and blue motorcycle lights to identify himself as a peace officer, “bleeped” the siren to get defendant’s attention, and ordered defendant to stop. Defendant gave Reardon a “glance” over his shoulder and kept walking. Reardon yelled: “ ‘Stop. Police. Stop right there.’ ” Defendant turned around and asked why Reardon was trying to stop him. Reardon ordered him to get on his knees, so he could be safely detained for further investigation. Defendant was “noncompliant, argumentative, borderline combative, ” so Reardon pulled out his baton and threatened to strike him if he did not comply. At that time, Officer Ruiz drove up, pointed his taser at defendant, and told him to comply. Defendant got on his knees and was handcuffed.
Officer Ruiz drove defendant to the San Francisco CHP office and read him his Miranda rights. Defendant agreed to waive them and answered questions. Defendant maintained his wife was driving the SUV and that he left the vehicle after an argument with her. Ruiz smelled a strong odor of alcohol and noticed that defendant’s eyes were red and watery and his speech was slurred. Defendant said a few times: “ ‘I fucked up.’ ” He initially denied he had been drinking and refused to perform field sobriety tests, claiming he had not been driving. Officer Ruiz arrested him for suspicion of driving under the influence and took him to Mission Station for a blood alcohol test. While traveling there, defendant was “teary-eyed” and sniffling. When Ruiz asked why he was crying, he said he and his wife had an argument because he picked her up in the SUV, not his Cadillac.
Miranda v. Arizona (1966) 384 U.S. 436.
While waiting for the blood draw, Officer Ruiz asked defendant “ ‘why he kept going away from me when I was yelling at him.’ ” At first, defendant said he had not heard the officer, but when Ruiz asked, “ ‘Are you sure? I yelled quite a bit, ’ ” he said: “ ‘I think I heard you one time, but I didn’t turn around.’ ”
Defendant eventually admitted that he had drunk some beer. Blood tests showed his blood alcohol level was.17 percent. A forensic toxicologist opined that it was.20 percent when police first contacted him.
Defendant’s wife acknowledged that he was drunk that night but said she had been driving the SUV when it ran out of gas. She explained that she had moved to the passenger seat so she could search the glove compartment for the phone number of roadside assistance because defendant could not find it. She said defendant climbed to the backseat and then moved to the driver’s seat after she hoisted herself over the center console into the passenger seat. She recalled Officer Ruiz saying: “ ‘Stay calm. Stay calm. I’m going to get help, ’ ” and indicated that after the officer left, she and defendant resumed a heated argument and “[t]he next thing [she] noticed, ... [he was] walking on the freeway.”
As the information charged defendant with at least one felony count, this court has jurisdiction over defendant’s appeal from his misdemeanor conviction. (People v. Nickerson (2005) 128 Cal.App.4th 33, 36-37; see § 691, subd. (f) [“ ‘Felony case’... includes a criminal action in which a misdemeanor... is charged in conjunction with a felony”].)
I. The Sufficiency of the Evidence
Defendant contends the evidence is “legally insufficient” under the Fourteenth Amendment and California law to establish the essential elements of the misdemeanor offense of which he was convicted: resisting, delaying, or obstructing a peace officer in the attempted discharge of his duties (§ 148, subd. (a)(1)).
A. Relevant Legal Principles
A state court conviction that is not supported by sufficient evidence violates the due process clauses of the Fourteenth Amendment and the California Constitution. (People v. Rowland (1992) 4 Cal.4th 238, 269; see Jackson v. Virginia (1979) 443 U.S. 307, 315 [“[T]he Due Process Clause of the Fourteenth Amendment protects a defendant in a criminal case against conviction ‘except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged’ ”].) The state and federal standards for reviewing the sufficiency of evidence are the same: whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Staten (2000) 24 Cal.4th 434, 460.) In making this determination, we “ ‘ “must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence.” ’ ” (Ibid., quoting People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Hernandez (1988) 47 Cal.3d 315, 345.) “To be sufficient, evidence of each of the essential elements of the crime must be substantial...”—“that is, ‘evidence that “reasonably inspires confidence and is of ‘solid value.’ ” ’ [Citations.]” (Hernandez, supra, at pp. 345-346; People v. Marshall (1997) 15 Cal.4th 1, 34.) “[T]he question of sufficiency [must be resolved] in light of the record as a whole.” (Hernandez, supra, 47 Cal.3d at pp. 345-346.)
To establish a violation of section 148, subdivision (a)(1), the People were required to prove: (1) that Officer Ruiz was a peace officer lawfully performing or attempting to perform his duties as a peace officer; (2) that defendant willfully resisted, delayed, or obstructed him in the performance or attempted performance of those duties; and (3) that defendant knew or reasonably should have known that Officer Ruiz was a peace officer performing or attempting to perform his duties. (CALCRIM No. 2656; People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.)
The resisting charge is limited to defendant’s conduct toward Officer Ruiz; defendant was not charged in relation to his conduct with Sergeant Reardon.
B. Evidence That Officer Ruiz Was Lawfully Performing His Duties
Defendant maintains the evidence is insufficient to establish that Officer Ruiz was acting in the lawful performance of his duties as a peace officer at the time of the resistance. We disagree. CHP officers are peace officers whose primary duty is “the enforcement of any law relating to the use or operation of vehicles upon the highways, or laws pertaining to the provision of police services for the protection of state officers, state properties, and the occupants of state properties, or both....” (§ 830.2, subd. (a); Veh. Code, § 2409.) They “are authorized to direct traffic according to law, and, in the event of a fire or other emergency, or to expedite traffic or insure safety, may direct traffic as conditions may require notwithstanding the provisions of [the Vehicle] code.” (Veh. Code, § 2410.) The Vehicle Code defines “traffic” to include “pedestrians... [and] vehicles, ... while using any highway for purposes of travel.” (Veh. Code, § 620.) The undisputed evidence shows that Officer Ruiz was responding to a request for assistance from the occupants of a vehicle that was disabled on a “particularly narrow” shoulder of the elevated portion of a freeway; and that he smelled alcohol coming from inside the vehicle, in which defendant and his noticeably pregnant wife were the only occupants. There is also evidence indicating that defendant disregarded Ruiz’s instruction to remain inside the SUV and proceeded down the shoulder of the highway where visibility was limited and traffic in the adjacent lanes of travel was “continuous.” This evidence shows the officer was confronted first with conditions precluding the vehicle’s occupants from exiting safely, and later, with a possibly intoxicated pedestrian walking down a narrow shoulder of an elevated freeway in the dark, as cars drove by. Substantial evidence supports a finding that, in directing defendant to remain inside the SUV and in later calling out to him to stop walking away, Ruiz was acting within his lawful authority to ensure the safety of motorists, including defendant and his wife.
Defendant contends, however, that the evidence does not support the first element of the offense because it shows that, at the time of his resistance, Officer Ruiz was not acting lawfully. A defendant “cannot be convicted of an offense against an officer engaged in the performance of official duties unless the officer was acting lawfully at the time. [Citation.]... ‘[B]ecause an officer has no duty to take illegal action, he... is not engaged in “duties, ” for purposes of an offense defined in such terms, if [his] conduct is unlawful. [Citations.]’ [Citation.]” (People v. Simons, supra, 42 Cal.App.4th at p. 1109.) Defendant maintains the evidence shows Ruiz was attempting an unlawful detention because there is no evidence he had a reasonable suspicion defendant was guilty of a crime or had probable cause to arrest. He relies on Nuno v. County of San Bernardino (C.D.Cal. 1999) 58 F.Supp.2d 1127, 1129-1130 (Nuno), in which a federal district court recognized: “Under California law, an officer is not lawfully performing her duties when she detains an individual without reasonable suspicion....” (Ibid., relying on People v. Olguin (1981) 119 Cal.App.3d 39, & People v. White (1980) 101 Cal.App.3d 161; see Olguin, supra, at pp. 44-45 [“ ‘[a]n officer is under no duty to make an unlawful arrest’ ”].) This contention fails because the evidence on which defendant relies does not require reversal. Notwithstanding evidence of an unlawful detention, if substantial evidence permits a finding to the contrary—either that Officer Ruiz was not attempting a detention, as that term is used in Fourth Amendment jurisprudence, or that the detention was lawful, the evidence is sufficient to support the verdict. (See People v. Staten, supra, 24 Cal.4th at p. 460.)
Defendant has failed to demonstrate that the evidence permits a finding that the officer’s conduct constitutes an attempted detention under the Fourth Amendment, let alone that it compels such a finding. He simply assumes that Officer Ruiz attempted such a detention but cites no authority to support this assertion and does not discuss the standard for determining whether a citizen’s encounter with law enforcement rises to this level. Contentions in a party’s brief lacking analysis and legal authority need not be considered. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–785 (Badie) [“When an appellant … asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)
To the extent defendant argues the officer’s directions to remain inside the vehicle and to stop walking down a dangerous roadway at night constitute an attempted detention, defendant has not shown evidence, or a lack thereof, precluding a jury from finding such a detention was lawful. Indeed, his argument rests on the unsupported and erroneous assumption that a peace officer may not constitutionally detain a citizen in any circumstances without a reasonable suspicion that he has committed a crime. Nuno does not stand for this proposition. Indeed, “ ‘the touchstone of the Fourth Amendment is reasonableness.’ [Citation.] Reasonableness, in turn, is measured in objective terms by examining the totality of the circumstances.” (Ohio v. Robinette (1996) 519 U.S. 33, 39; see People v. Letner and Tobin (2010) 50 Cal.4th 99, 146 [“ ‘The reasonableness of a seizure under the Fourth Amendment is determined “by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate government interests” ’ ”].) A reasonable suspicion of criminal activity is sufficient to satisfy the reasonableness requirement when an officer detains an individual for investigative purposes. (United States v. Sokolow (1989) 490 U.S. 1, 7 [“the police can stop and briefly detain a person for investigative purposes if the officer has a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot, ’ even if the officer lacks probable cause”].) There is no indication here that Officer Ruiz was attempting to detain defendant for the purpose of investigating criminal activity. Defendant has not shown the same standard applies in cases like this where, in the course of performing his duties, an officer provides aid to stranded motorists and acts to preserve their safety and maintain safe traffic conditions while he obtains roadside assistance.
Officer Ruiz did not testify regarding his purpose in instructing defendant and his wife to remain in the SUV and directing defendant to stop walking away from the vehicle. The evidence reasonably permits an inference that the officer was acting to ensure defendant’s safety and that of passing drivers (e.g., the officer’s testimony regarding the need for additional units to stop southbound traffic so he could safely approach defendant).
In a similar argument, defendant contends he was not compelled to heed Officer Ruiz’s order to stop because the officer “had no lawful authority” for a detention and, “at best, ” was attempting a consensual encounter, which he was free to reject. We disagree. First, as discussed above, defendant has failed to demonstrate that the attempted detention he alleges was unlawful. Second, his compliance with the officer’s commands was not optional. Vehicle Code section 2800, subdivision (a) makes it “unlawful to willfully fail or refuse to comply with a lawful order, signal, or direction of a peace officer..., when that peace officer is in uniform and is performing duties pursuant to any of the provisions of [the Vehicle Code].” (See Veh. Code, § 40000.7, subd. (a)(2) [a violation of Veh. Code, § 2800 is a misdemeanor].)
C. Evidence Showing Defendant’s Resistance Was Willful
Defendant also maintains the evidence was insufficient to establish “that [he] willfully resisted Ruiz by walking away from [the] SUV.” He contends “it is speculative at best that [he] willfully resisted Ruiz....” (See People v. Tran (1996) 47 Cal.App.4th 759, 772; People v. Redmond (1969) 71 Cal.2d 745, 755.) Specifically, he relies on evidence showing: (1) that he exited the SUV “to avoid continuing to argue with his wife, to give them both a chance to cool down, rather than to willfully resist Ruiz”; and (2) that he was not aware Officer Ruiz was trying to stop him. Neither of these contentions has merit. To the extent the jury found defendant had resisted, delayed or obstructed Officer Ruiz by disobeying his instruction to remain inside the SUV, defendant’s reason for disobeying the officer’s instruction is irrelevant. Section 148, subdivision (a)(1) does not require that a defendant act with the specific purpose of resisting, delaying, or obstructing a police officer. (See CALCRIM No. 2656 [willfulness does not require “that [a defendant] intend to break the law...”].) Equally unavailing is evidence that defendant did not hear Officer Ruiz calling to him. The jury could have reasonably believed Ruiz’s testimony that defendant admitted: “ ‘I think I heard you one time, but I didn’t turn around.’ ” The jury also could have reasonably inferred that defendant willfully resisted Officer Ruiz from evidence of his subsequent reluctance to comply with the commands of Sergeant Reardon. When substantial evidence supports the jury’s findings, “reversal is not warranted merely because the circumstances might also be reasonably reconciled with a contrary finding.” (People v. Redmond, supra, 71 Cal.2d at p. 755.)
Defendant contends his statement “was not an actual admission that he did actually hear [Ruiz]” and disputes its accuracy, noting his state of intoxication and Ruiz’s failure to include this statement in the incident report he prepared. These contentions have no merit. Defendant’s statement reasonably permits an inference that he heard Ruiz and disregarded him, and the jury was free to reject evidence undermining Officer Ruiz’s credibility and the accuracy of the statement given defendant’s mental state.
Accordingly, we reject defendant’s challenge to the sufficiency of the evidence.
Defendant also contends that exiting the SUV did not constitute resisting the officer because Ruiz did not tell him and his wife they were under arrest or investigation and did not specifically tell them to stay inside the SUV for their safety and the safety of other drivers. He provides no analysis or authority to support this argument, and we are unable to discern any legal basis for it. (See Badie, supra, 67 Cal.App.4th at p. 784 [waiver of contentions not supported by analysis and legal authority.)
II. The Alleged Instructional Error
Defendant contends the trial court erred in denying his request to instruct the jury under CALCRIM No. 2670 that a peace officer who detains someone without a reasonable suspicion of his involvement in criminal activity is not acting in the lawful performance of his duties. Specifically, he contends the trial court should have instructed the jury under CALCRIM No. 2656 that: “A peace officer is not lawfully performing his... duties if he is unlawfully attempting to detain someone. Instruction 2670 explains when an attempted detention is unlawful.” Defendant contends the trial court should have given CALCRIM No. 2670, as follows: “The People have the burden of proving beyond a reasonable doubt that Officer Ruiz was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of resisting arrest as charged in count 3 of the information. [¶] A peace officer is not lawfully performing his duties if he is unlawfully attempting to detain someone. [¶] A peace officer may legally attempt to 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 a crime; [and] 2. A reasonable officer who knew the same facts would have the same suspicion. [¶] Any other attempted detention is unlawful. [¶] In deciding whether the attempted detention was lawful[, ] consider evidence of the officer’s training and experience and all the circumstances known by the officer when he attempted to detain the person” (requested instructions).
The trial court denied defendant’s request for an instruction under CALCRIM No. 2670, indicating it did not “see... any evidence to indicate that the officer was not engaged in the lawful performance of his duties... under [the] circumstances.” The trial court noted: “[T]he officer gave a safety command to people in a disabled vehicle on a very dangerous portion of the freeway.... And... [defendant] doesn’t have a right to walk along the freeway there. It is endangering other drivers, as well as [defendant].”
There is no indication in the record that defendant requested the pertinent portion of CALCRIM No. 2656 in the trial court.
We review the trial court’s denial of defendant’s requested instructions independently. (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) “ ‘[T]he trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.’ [Citation.] In addition, ‘a defendant has a right to an instruction that pinpoints the theory of the defense [citations][.]’ ” (People v. Roldan (2005) 35 Cal.4th 646, 715, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) The Bench Notes to CALCRIM No. 2670 provide: “The court has a sua sponte duty to give this instruction if there is sufficient evidence that the officer was not lawfully performing his or her duties and lawful performance is an element of the offense.” (Id., citing People v. Gonzalez (1990) 51 Cal.3d 1179, 1217 [“disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element”].) Nonetheless, “ ‘a trial judge must only give those instructions which are supported by substantial evidence. [Citations.]’ [Citation.]” (People v. Roldan, supra, 35 Cal.4th at p. 715.)
Defendant appears to take issue with this standard, contending the trial court erred in denying the requested instruction “because the defense did not bring forth evidence [to support it].” He argues that the trial court improperly shifted the burden of proof on an essential element. The authority on which he relies does not establish that a trial court improperly places the burden of proof on a criminal defendant by denying a jury instruction that is unsupported by substantial evidence. (See Patterson v. New York (1977) 432 U.S. 197, 204-205.)
Defendant contends the trial court erred in denying the requested instruction because “there was more than sufficient evidence calling into question whether Officer Ruiz was lawfully performing his duties as a peace officer at the time he attempted to detain [defendant].” Accordingly, the primary question before us is whether substantial evidence supports a finding that Officer Ruiz’s actions amount to an attempted detention invoking Fourth Amendment protections. Defendant has not made this showing. As noted above in discussing his challenge to the sufficiency of the evidence, he simply assumes that Officer Ruiz was attempting such a detention. Because he has not shown substantial evidence of an attempted detention, he has failed to demonstrate that the trial court was required to instruct the jury regarding its lawfulness.
Defendant has failed, in any case, to demonstrate that he was prejudiced by the alleged instructional error. He does not indicate whether the state or federal standard of prejudice applies, claiming the alleged error “was prejudicial under any standard;” then he does not discuss either. He has not shown that the alleged error resulted in a miscarriage of justice, such that it is reasonably probable he would have obtained a more favorable result without the alleged error (People v. Watson (1956) 46 Cal.2d 818, 836), and does not contend the People bore the burden in these circumstances to establish that the alleged error was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24.)
disposition
The judgment is affirmed.
We concur: Needham, J., Bruiniers, J.