Opinion
D071449
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. ALLAN DAVID RILEY, Defendant and Appellant.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD255338) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Reversed in part, affirmed in part and remanded for resentencing. Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Michael Pulos and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury found Allan David Riley guilty of assault with a deadly weapon (a knife) on a peace officer (Pen. Code, § 245, subd. (c); count 1), carrying a concealed dirk or dagger (Pen. Code, § 21310; count 2), failure to appear while on his own recognizance (Pen. Code, § 1320, subd. (b); count 3), and giving false information to a peace officer (Pen. Code, § 148.9, subd. (a); count 4). With respect to count 1, the jury found true allegations Riley personally used a deadly weapon on a peace officer (Pen. Code, § 1192.7, subd. (c)(11), (23)). With respect to counts 1 through 3, the jury found true allegations Riley committed the felony offenses when he was released from custody on his own recognizance pending final judgment on earlier felony offenses (Pen. Code, § 12022.1, subd. (b).) Riley admitted he suffered two prior serious felony strikes. (Pen. Code, §§ 667, subd. (a)(1), 668, and 1192.7, subd. (c).) The court sentenced Riley to serve 25 years to life in state prison plus a consecutive determinate term of 19 years four months.
On appeal, Riley contends count 4 should be reversed because there was no substantial evidence he was under lawful detention or arrest when he gave a false name to police officers and that the court's jury instruction on count 4 omitted an element of the crime. With respect to count 1, Riley contends the court erred in refusing to give a pinpoint instruction on the definition of detention and in failing to instruct the jury regarding the meaning of a "Fourth waiver." Riley contends the cumulation of errors was prejudicial and requires reversal of his conviction under count 1.
The People concede error with respect to count 4. Therefore, we reverse Riley's conviction on that count. As to Riley's remaining contentions, we conclude there was no prejudicial error and we affirm the judgment as to count 1.
Riley does not challenge his conviction for count 2 in this appeal. The conviction for count 3 as well as the special allegations regarding Riley's commission of crimes while he was released from custody on his own recognizance are the subject of Riley's petition for writ of habeas corpus, which we considered with this appeal. In a separate opinion filed simultaneously, we grant relief and vacate the conviction on count 3 and the true findings as to allegations in counts 1 through 3 that Riley committed the offenses when released on his own recognizance. (In re Riley on Habeas Corpus, D072460.) --------
II
BACKGROUND
A
On April 8, 2014, two sheriff's deputies, Deputy G. and Deputy C., were on patrol in the La Mesa area. Due to a rise in residential and vehicle burglaries in the area, they were working near a bait car with a team of sheriff's deputies and local police officers. The deputies were making contacts with individuals in the area and were looking for a person walking through the area with a backpack.
They saw Riley walking along a street with a backpack. Riley was walking in the same direction the officers were driving. The deputies also noticed Riley had tattoos on his arm. As the deputies drove past, Riley turned right and walked along a sidewalk on another street.
The deputies decided to make contact with Riley. They made a U-turn in their patrol vehicle at an intersection and moved into a left-hand turn lane. Riley crossed the street and walked back down to the main road to a gas station. The deputies turned into the gas station. Deputy C. dropped off Deputy G. and then drove around the gas pumps before stopping the patrol vehicle. Deputy G. observed Riley digging through trash cans.
Deputy G., who intended only to contact Riley, asked, "Hey, man, how you doing?" Riley responded in a relaxed way that he was okay. When Deputy G. asked where Riley was heading, Riley said he ping pongs around. Deputy G. said he was not familiar with the area. They discussed the fact that Riley was looking for recyclables. Deputy G. did not tell Riley he was not free to leave or otherwise attempt to detain Riley at this point, which typically involves asking an individual to sit down. Deputy G. made sure Riley had a path to leave so he would not feel cornered in. Riley did not say he wanted to leave. Deputy G. noticed tattoos on Riley's left forearm and neck.
After driving the patrol vehicle around, Deputy C. observed Deputy G. speaking with Riley. Deputy C. approached from behind Deputy G. to observe. Riley appeared fairly calm as he was speaking with Deputy G. Deputy C. went back to the patrol car to tell dispatch they were engaged in an encounter.
Deputy G. asked Riley to provide his name and date of birth. Riley gave a false name and a date of birth. Deputy G. asked if Riley was on parole or probation and asked if he had ever been to prison. He also asked Riley about the tattoo on Riley's neck. Deputy G. jotted notes of his conversation with Riley on a field interview card.
When Deputy C. returned, he looked at Deputy G.'s notes. Deputy C. went back to the patrol vehicle and ran the information. The exact name and date of birth received no results, which was unusual.
Riley adjusted his backpack. Deputy G. noticed another tattoo on the inside of his arm. They discussed that tattoo.
When Deputy C. returned from the patrol vehicle again, he said there was a warrant for the name Riley had given with a similar date of birth out of Ventura County. He asked to see some identification.
Riley said "no," grabbed onto his backpack and started to back away. Riley started walking and saying, "No, no, no. I don't have a Fourth. I don't have a Fourth." Deputy C. stated "a Fourth" in street terminology is when a person is released from prison or jail early and "they agreed to give up their Fourth Amendment rights to search and seizure." Riley appeared to be about to flee.
As Riley backed away, Deputy G. said, "Hey, don't do anything silly. Have a seat and let's work this out." Deputy G. was concerned Riley was going to run.
Deputy C. told Riley, "No. Don't do this." He also encouraged Riley to have a seat. Riley said "no" and continued to back away. Deputy C. placed a hand on Riley to detain him from fleeing.
Riley reached under his shirt and began struggling with something in his waistband. Deputy G. saw Riley's hands pulling on something, as though he was pulling a knife out of a sheath. When Riley brought his hands out, Deputy G. glimpsed something black and said, "Is that a knife?" Deputy G. then saw it was a knife as the stainless steel caught the sunlight. Riley moved in a slashing motion toward Deputy C.'s left inside thigh.
Once Deputy G. saw the knife and determined Riley was stabbing Deputy C., Deputy G. decided to shoot Riley. Deputy G. was concerned Riley would strike a lethal blow or that Riley would continue stabbing either Deputy C. or Deputy G. Deputy G. aimed his weapon at a downward angle and pulled the trigger one time.
The knife hit the ground and Riley fell to the ground. Deputy G. held the gun on Riley and asked Deputy C. if he was shot. Deputy C. said Riley got him, but he was okay. Deputy C. requested medical assistance both for Riley and for himself. Another deputy arrived on the scene and covered Riley while Deputy G. handcuffed Riley. A black knife sheath was under Riley on the ground. The deputies recovered a wallet with Riley's true identification from Riley.
Deputy C. sustained a cut on his leg. He was taken to the hospital by ambulance where he received treatment of the wound, which required staples. Deputy C. could not work for a week until the staples were removed and he was cleared by the doctor.
When detectives interviewed Riley in the hospital, he apologized. Riley stated he had seen officers stop two people at a nearby store and did not want to be involved because he had a warrant. So he walked to a gas station. When the deputies approached him at the gas station, he decided to give a "bullshit" name because he had a warrant. He gave them the name of an ex-roommate. When the name came back with a warrant, Riley thought he was going to jail. He said he would rather be dead than go to jail, so he pulled out a knife. Riley stated he thought if he stabbed the deputy, the deputy would shoot him, and that "will take care of the problem."
B
Riley testified on his own behalf. He stated he saw officers in the area engaging with individuals, so he walked the other direction. He saw the deputies drive by in their patrol car and make a U-turn. He walked toward a convenience store and saw the deputies approach. He was concerned because he was in possession of a concealed weapon, a knife.
Riley denied he felt he was free to leave. Riley stated he answered questions from both deputies and they were close to him. He admitted he gave the deputies a false name because he was concerned his own name would come back with warrants.
When one deputy came from the vehicle and said he had a warrant and needed identification, Riley said he made a comment about not having a warrant. Riley backed up as the deputy reached out to grab him. When the deputy reached out again, Riley pulled the weapon out. He thought the deputy was going to "body slam" him. Riley stated he was shot on his left side.
Riley testified the knife was still in the sheath or just coming out of the sheath when he was shot. He denied stabbing Deputy C. in the leg.
Riley said he wanted to apologize to the deputies during the hospital interview, but he did not want to do so on tape.
Riley admitted he appeared in court in March 2014 on two felony cases. The court released him from custody on his own recognizance, but ordered him back to court on a certain date. He also admitted he did not appear as ordered.
III
DISCUSSION
A
The People concede there was insufficient evidence to support Riley's conviction under count 4. Penal Code section 148.9, subdivision (a) makes it a misdemeanor for a person to "falsely represent[] or identif[y] himself or herself as another person or as a fictitious person to any peace officer ... upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer ...." (Italics added.) There was no evidence in this case that Riley was lawfully detained or arrested at the time he provided the deputies the false identification. Both deputies testified the initial encounter where Riley provided the false name was consensual and they did not have reasonable suspicion to detain Riley at that point. Riley's position was that there was a detention, but it was unlawful. Either way, there was insufficient evidence Riley gave a false identity to the deputies in connection with a lawful detention or arrest so Penal Code section 148.9, subdivision (a) does not apply. (People v. Walker (2012) 210 Cal.App.4th 1372, 1392; In re Voeurn O. (1995) 35 Cal.App.4th 793, 797.) Since we accept the People's concession about the lack of evidence to support count 4, we need not reach the issue of the inadequate jury instruction for that count. The conviction under count 4 is reversed.
B
Riley asserts two instructional errors related to count 1. We independently review whether the trial court failed to instruct with requested instructions or defenses. (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.' " (People v. Roldan (2005) 35 Cal.4th 646, 715 (Roldan), overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) However, " 'a trial court may refuse a proffered instruction if it is an incorrect statement of law, is argumentative, or is duplicative. [Citation.] Instructions should also be refused if they might confuse the jury.' " (People v. Peoples (2016) 62 Cal.4th 718, 768.)
1
Riley first contends the court erred in refusing to give the following special pinpoint jury instruction concerning detention: "An encounter becomes a seizure when a reasonable person would have believed they were not permitted to continue about their business." The court denied the request.
Later, the court considered the bench notes for CALCRIM No. 2670, which recommended providing a definition of consent or detention when there are factual issues about whether those circumstances existed and cited People v. Wilkins (1993) 14 Cal.App.4th 761, 777.
The court modified CALCRIM Instruction No. 2670 to include definitions of the terms consent, detain, and detention as part of the instruction's discussion of unlawful detention. In pertinent part, the instruction informed the jury: "Consent means to agree or give assent to something proposed or requested. [¶] Detain means to hold or to keep. Detention from the word detain, is a limitation on a person's freedom by temporarily preventing the person from leaving."
Defense counsel did not object to the court's formulation of the definition as an inaccurate statement. Counsel only renewed the request for the pinpoint instruction. The court stated the proposed instruction talked about seizure in a way consistent with a motion to suppress evidence, under Penal Code section 1538.5, obtained as a result of a search or seizure in violation of constitutional standards. It did not address the issues raised by Wilkins.
Riley's requested instruction described seizure consistent with cases discussing the concept for Fourth Amendment purposes. Consensual encounters, when a person voluntarily answers questions from a police officer, "present no constitutional concerns and do not require justification." (People v. Brown (2015) 61 Cal.4th 968, 974.) "However, 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen,' the officer effects a seizure of that person, which must be justified under the Fourth Amendment to the United States Constitution. [Citations.] In situations involving a show of authority, a person is seized, 'if "in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave," ' or ' "otherwise terminate the encounter" ' [citation], and if the person actually submits to the show of authority." (Ibid.)
However, the court impliedly found the term seizure in the requested instruction would be confusing for the jury in the context of this case. The proposed pinpoint instruction did not explicitly define the word detention. The court's definitions of consent and detention adequately conveyed the concept of temporarily preventing a person from leaving. This is consistent with the testimony of the deputies, who stated a consensual contact was one in which an individual is free to leave and go about his or her business. In closing arguments, defense counsel argued the statements and actions of the deputies would cause a reasonable person to feel he was not free to go.
If it was error to refuse Riley's proposed instruction, the error was harmless. Whether or not Riley was detained or engaged in a consensual contact at the beginning of the encounter, there is no dispute the deputies were attempting to detain Riley at the time of the stabbing charged in count 1. Deputy C. investigated the name Riley gave. The name had a warrant for arrest. Deputy C. told Riley they needed to confirm his identity, asked for identification, and both deputies asked Riley to sit down. Riley did not comply, but instead appeared to prepare to flee. Deputy C. placed a hand on Riley and asked him to stop as Riley pulled the knife and stabbed him. The jury was required to evaluate the lawfulness of the detention at that time. There is no reasonable probability the jury would have returned a more favorable verdict even if the requested instruction were given. (People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)
2
Riley next contends the court erred in failing to sua sponte instruct the jury about the meaning of a "Fourth waiver." The term was used during the trial because Riley said he did not have a Fourth waiver when Deputy C. asked for identification. Deputy C. explained "a Fourth" in street terminology is when a person is released from prison or jail early and "they agreed to give up their Fourth amendment rights to search and seizure." When Riley testified, he agreed that law enforcement officers can contact and search a person with a Fourth waiver at any time with or without probable cause.
Riley contends on appeal the witness testimony did not fully inform the jury about the requirement that a Fourth Amendment waiver must be known to the peace officer before conducting the search. However, this point was not in dispute. The prosecutor told the jury the deputies did not know about the Fourth waiver. The jury was instructed with CALCRIM No. 2670 regarding the legal requirements to evaluate a lawful detention, which focused on what the peace officer knew at the time of the incident. We presume the jury followed the court's instruction (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 447) and did not determine the officers had a right to lawfully detain Riley based on the Fourth waiver.
The People argued consistently that Riley's own knowledge about his Fourth waiver undermined his self-defense argument. Because he knew he had a duty to submit to a search at any time, the People argued he did not have a right to use force to defend himself against an unlawful detention. Under these circumstances, we conclude the court was not required to give an additional instruction regarding the general principles of law related to a Fourth waiver because it was not necessary for the jury's understanding of the case. (Roldan, supra, 35 Cal.4th at p. 715.)
C
Riley's final contention is that the combined errors were prejudicial and denied him due process. We disagree.
We have rejected the claims of prejudicial instructional errors as discussed ante. The only conceded error is with respect to count 4. The failure of evidence and instruction regarding count 4 does not require reversal of the judgment as to count 1. (People v. Hughes (2002) 27 Cal.4th 287, 406-407.)
The fact that the name Riley provided returned a warrant gave Deputy C. cause to believe Riley either had an arrest warrant under the name he provided or Riley had given them false information in an attempt to hide something. Therefore, Deputy C. wanted to detain Riley to determine his identity and then to take whatever action might be necessary. Deputy C. did not attempt to arrest Riley for providing false information during the initial encounter. He only attempted to detain Riley to obtain more information. Under any standard, it is not reasonably probable the jury would have reached a different verdict for count 1 absent the error with respect to count 4. (Chapman v. California (1967) 386 U.S. 18, 24; Watson, supra, 46 Cal.2d at p. 836.)
IV
DISPOSITION
The judgment as to count 4 is reversed. The judgment as to count 1 is affirmed. With the exception of the relief granted as stated in In re Riley on Habeas Corpus (D072460), the judgment is otherwise affirmed. The matter is remanded for resentencing.
McCONNELL, P. J. WE CONCUR: HUFFMAN, J. AARON, J.