People v. Butler

4 Cal.Rptr.3d 1

111 Cal.App.4th 150

The PEOPLE, Plaintiff and Respondent, v. Perry BUTLER, Defendant and Appellant.

No. B159423.

Court of Appeal, Second District, Division 5.

Certified for Partial Publication.^*

August 13, 2003.

As Modified August 18, 2003.

Rehearing Denied September 4, 2003.

Review Denied November 19, 2003.

David L. Bernstein, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephen A. McEwen and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

TURNER, P.J.

I. INTRODUCTION

Defendant, Perry Butler, appeals from his conviction for battery on a peace officer, with injuries. (Pen.Code,¹ § 243, subd. (c).) The jury also found that defendant was previously convicted of a serious felony. (§§ 667, subds. (b)-(i), 1170.12.) Defendant argues the trial court improperly: denied his section 1538.5 motion to suppress evidence; excluded evidence that deputy sheriffs had tried to intimidate him prior to trial; and denied his discriminatory prosecution discovery motion. In the published portion of this opinion, we discuss whether the United States Supreme Court decision of Florida v. J.L. (2000) 529 U.S. 266, 268-274, 120 S.Ct. 1375, 146 L.Ed.2d 254 (J.L.) required the trial court to suppress the challenged evidence under the terms of the Fourth Amendment. We conclude that J.L. does not require that the evidence at issue be suppressed, and the trial court correctly denied the section 1538.5 motion.

II. FACTUAL BACKGROUND

We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319, 99 S.Ct. 2781, 61 L.Ed.2d 560; People v. Osband (1996) 13 Cal.4th 622, 690, 55 Cal.Rptr.2d 26, 919 P.2d 640; Taylor v. Stainer (9th Cir.1994) 31 F.3d 907, 908-909.) On September 6, 1997, Los Angeles County Deputy Sheriff James Mumby, while working at the Palmdale substation, received an anonymous telephone call from a woman. The woman told Deputy Mumby that she believed drugs were being sold from a gray Ford Explorer parked across from 933 East Avenue Q-4. Deputy Mumby typed the message given into the computer that was transmitted to all mobile units to "be on the lookout." The message included information regarding possible narcotics activity at the place described by the anonymous caller.

Deputy Patrick Hayes received the mobile unit message sent by Deputy Mumby. Deputy Hayes drove to the area of 933 East Avenue Q-4, where he saw he saw a gray Ford Explorer parked at the curb. Deputy Hayes parked his patrol car behind the Explorer. Deputy Hayes saw a woman standing at the driver's door of the Explorer. The driver's door window was down. Deputy Hayes saw defendant, who was in the driver's seat, hand something to the woman standing outside. Deputy Hayes observed that the registration tag on the Explorer had expired. A woman was seated in the front passenger seat of the Explorer. Deputy Hayes saw defendant place something else in the hand of the woman outside his door. Deputy Hayes knew this area to be a high-crime area within the City of Palmdale. Deputy Hayes walked up to the driver's side door of the Explorer. The woman standing outside the door walked away toward a nearby market.

Deputy Hayes greeted defendant. Deputy Hayes then asked defendant to turn off the motor of the Explorer. The driver's window was open. Defendant was not wearing a shirt. Deputy Hayes saw that defendant was a very muscular man. Defendant's left hand was down to his side between the door and his body. Deputy Hayes was concerned that defendant might be holding something. Defendant's arm was tensed. Defendant was asked if the Explorer belonged to him. Defendant said that it did. When asked if he had a driver's license or identification card, defendant gestured as though he did not have either. Defendant began looking through the center console with his right hand. Defendant eventually brought out a California identification card. Deputy Hayes clipped the identification card to his shirt. Defendant asked what the problem was. Defendant was told that someone had called and said he was doing something he was not supposed to be doing. Defendant asked if he was under arrest. Defendant was told he was not under arrest but was being detained. Defendant became argumentative, repeatedly asking if he were under arrest. Defendant's left hand remained at his side. Defendant used his right hand to reach into the center console again. Deputy Hayes became concerned for his safety. Deputy Hayes believed defendant could have been reaching for a weapon.

Defendant brought his left hand into view. Defendant's left hand was closed as if he was holding something. Deputy Hayes believed defendant might be holding some type of narcotic. Deputy Hayes reached inside the window and lightly grasped defendant's left wrist. Defendant continued to reach into the console with his right hand. Deputy Hayes removed his weapon from his holster with his right hand and held it at his side. Defendant was asked to open his left hand to reveal what he was holding. Defendant did not comply. Rather, defendant continued to inquire whether he was under arrest. Deputy Hayes repeated that defendant was being detained rather than arrested. Eventually defendant brought his right hand into view. Defendant was not holding anything in his right hand. Deputy Hayes returned his weapon to his holster. Deputy Hayes continued to hold onto defendant's left wrist. Defendant began to pull his left hand toward his own body. Deputy Hayes testified, "At that time I grasped a little bit stronger with my grip and held the grip on his wrist." Defendant again repeated, "Am I under arrest?" Deputy Hayes used his right hand to activate his radio microphone to summon assistance. Defendant said: "Hurry up. Go ahead [ ] call them. Tell them to hurry up and get here."

Deputies Richard Ellis, Gregory Minster, and Jeffrey Biehl responded to the assistance request. Deputy Ellis parked his patrol car at an angle in front of the Explorer. This was to ensure that defendant could not drive away as well as to be out of the line of fire if a shooting occurred. Once the deputies arrived, Deputy Hayes ordered defendant to get out of the Explorer several times. A heated discussion followed. Defendant refused to get out of the truck. Defendant said, "Fuck you" several times. Defendant used his right hand to press the power window switch. As the window went up, defendant pulled Deputy Hayes's arm inside the truck. Deputy Ellis removed his can of pepper spray. Deputy Ellis then sprayed a short burst into defendant's face. Defendant closed his eyes and remained very still. Deputy Hayes removed his arm from the window.

Defendant reached for the ignition. The doors of the Explorer were locked. The woman opened the passenger door and got out of the truck. As noted previously, there was a woman in the front seat of the Explorer. Deputies Hayes and Ellis ran to the passenger door while Deputies Minster and Biehl remained on the driver's side. Deputy Ellis detained the woman. Deputies Minster and Biehl again ordered defendant out of the truck. Defendant appeared to be leaning forward in an attempt to clear his eyes. Deputy Minster said, "He has dope," or "He's eating dope." Defendant appeared to swallow something. In the meantime, Deputy Hayes reached inside the truck and removed the keys from the ignition and unlocked the doors.

The driver's side door flew open. Defendant lowered his head and "charged out." Defendant charged towards Deputy Biehl. Deputy Biehl reholstered his weapon. As this was occurring, defendant slugged Deputy Biehl. Defendant used his left fist. Defendant also headbutted Deputy Biehl. Deputy Biehl was headbutted on his right cheek. Deputy Biehl used a flashlight to strike defendant on the arm or shoulder. Deputy Minster heard something hit the ground and later observed a glass pipe. Deputy Minster saw that defendant did not have a gun. Deputy Minster reholstered his weapon. Defendant grabbed Deputy Minster's hand, squeezed down, and then pulled up. Deputy Minster hit defendant three times in the face. This was done to keep him from getting the gun. Defendant pulled Deputy Minster's thumb upward causing intense pain. Deputy Biehl saw defendant reaching toward Deputy Minster's gun. Deputy Biehl believed defendant intended to use deadly force. Deputy Biehl believed defendant was attempting to grab Deputy Minster's gun. Deputy Biehl hit defendant on the top of the head with a flashlight.

Defendant fell to the ground. Deputy Hayes and other deputies handcuffed defendant. Defendant had resisted being handcuffed by placing his arms under his body. Defendant had a cut on the top of his head that was bleeding. Deputy Hayes summoned paramedics. Thereafter, defendant was treated by paramedics and driven to the hospital. Emergency Medical Technician Francisco Flores treated defendant at the scene. Mr. Flores noted that defendant was uncooperative in answering basic questions related to medical treatment. Defendant had an unsteady gait when he walked to the hospital bed and had an odor of alcohol on his breath. Mr. Flores believed that defendant may have been acting. Defendant was treated at the hospital for his head laceration. Defendant also incurred bruising on his cheek and earlobe as well as cuts within his ear.

Deputy Minster was also taken to the hospital for treatment of injuries to his thumb and knee. Deputy Minster suffered a sprained ligament in his hand as well as water on the knee. Deputy Minster missed 22 days of work as a result of his injuries.

III. DISCUSSION

A. Section 1538.5 Hearing

1. Factual and procedural background

Prior to trial, defendant filed a motion to suppress evidence pursuant to section 1538.5, subdivision (a)(1). Defendant subsequently filed a supplemental...