People v. Olivares

THE PEOPLE, Plaintiff and Respondent, v. FRANCISCO OLIVARES, Defendant and Appellant.

2d Crim. No. B287575

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SIX

March 6, 2019

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 2016017656)

(Ventura County)

Francisco Olivares appeals from the judgment after a jury convicted him of forcibly resisting an executive officer (Pen. Code,¹ § 69) and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)), and found true an allegation that he inflicted great bodily injury on the officer who detained him (§ 12022.7, subd. (a)). The trial court found true allegations that Olivares suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and served three prior prison terms (§ 667.5, subd. (b)). It sentenced him to 25 years to life in prison plus three years.

Olivares contends his unlawful detention requires his conviction for possession of drug paraphernalia to be reversed and his conviction for resisting an executive officer to be reduced to a misdemeanor, and the trial court's instructional error requires reversal of the jury's great bodily injury finding. He also requests that we review transcripts from the in camera Pitchess² proceedings to determine whether the court improperly withheld discoverable materials. We affirm.

FACTUAL AND PROCEDURAL HISTORY

Officer Michael Johnson was patrolling an Oxnard business district one night in May 2016. The area had few houses, a high crime rate, and a high transient population. Officer Johnson knew many of the people who frequented the area from his patrols.

Around 10:00 p.m., Officer Johnson turned onto a street and saw Olivares walking in the middle of the road. Because the street was dark, Officer Johnson decided to check on Olivares's well-being. He also believed Olivares was impeding traffic in violation of the Vehicle Code. He slowed his patrol car and shined his spotlight on Olivares. Olivares looked back at the patrol car, looked away, and moved to the side of the road. Officer Johnson believed Olivares was attempting to conceal his identity, so he asked Olivares to stop.

Olivares stopped and looked around. Officer Johnson exited his patrol car. The officer did not recognize Olivares from his regular patrols of the area. He believed Olivares was actingsuspiciously, and was concerned Olivares may have been armed because he could not see his hands. Officer Johnson asked Olivares to walk toward him and remove his hands from his pocket. Olivares complied.

Officer Johnson asked Olivares's name and why he was in the area. Olivares told Officer Johnson his name and said he was walking home from a friend's house. Olivares's name sounded familiar to Officer Johnson, so he asked if Olivares was on parole. Olivares replied that he was on probation. Officer Johnson asked Olivares "if he had anything on his person [he] needed to know about." Olivares did not reply verbally, but reached into his jacket, pulled out two syringes, and dropped them to the ground. One syringe was partially filled with a dark-colored substance. Based on his training and experience, Officer Johnson believed it contained narcotics.

Officer Johnson told Olivares that he was going to search him. Olivares turned around and placed his hands behind his head. Officer Johnson held one hand over Olivares's hands and conducted a patdown search with his other.

Olivares pulled away from Officer Johnson, turned around, and punched him in the nose. He tried to pick up the syringes and flee, but Officer Johnson grabbed his jacket. The officer punched Olivares in the face two or three times. He took Olivares to the ground.

Officer Johnson's nose was broken during the scuffle. A doctor had to manually realign it, and a nose splint was required. It took two months for the nose bones to fuse together.

Olivares testified that he did not hit the officer, but lost his balance during the patdown search. At one point during the struggle the back of his head hit the officer's face.

At the close of evidence, the trial court instructed the jury on the elements of battery against a peace officer causing injury (CALCRIM No. 945) and forcibly resisting an executive officer in the performance of their duties (CALCRIM No. 2652). It explained when an arrest or detention is unlawful. (CALCRIM No. 2670.) The court also instructed the jury on the great bodily injury allegations. (CALCRIM No. 3160.) It defined "great bodily injury" as "significant or substantial[] physical injury," one that causes "greater than minor or moderate harm." It clarified that "[c]ommitting the crime of battery against a peace officer causing injury is not by itself the infliction of great bodily injury." The court did not additionally clarify that committing the crime of forcibly resisting an executive officer is not, by itself, the infliction of great bodily injury.

During closing arguments, the prosecutor told the jury that the infliction of great bodily injury was "a special enhancement to [the forcibly resisting an executive officer] count." She argued Olivares was guilty of both that crime and battery against a peace officer because he "us[ed] force and violence . . . [that] caused great bodily injury" to Officer Johnson. She told jurors that, to find the great bodily injury allegation true, they had to deem Officer Johnson's broken nose to be "significant or substantial," "more than moderate [or] . . . insignificant." She also said that if jurors found Olivares guilty of the charged crimes, it then had to "go on to the analysis of [whether] that injury [was] significant or substantial bodily harm."

The jury convicted Olivares of forcibly resisting an executive officer and possession of drug paraphernalia, and found true the great bodily injury allegation tied to the former charge.It could not reach a verdict on battery against a peace officer. The trial court declared a mistrial and dismissed that charge.

DISCUSSION

Possession of drug paraphernalia

Olivares contends his conviction for possession of drug paraphernalia should be reversed because the trial court erroneously denied his pretrial motion to suppress. This contention requires us to determine: (1) when Officer Johnson detained Olivares, and (2) whether, at that moment, the officer reasonably suspected that Olivares had committed a crime. We conclude that Officer Johnson did not detain Olivares until he initiated the patdown search. At that point, the officer reasonably suspected Olivares possessed narcotics based on his observation of the two syringes. The court properly denied Olivares's motion to suppress.

1. When the detention occurred

The test to determine whether an individual has been detained is if, "in view of all the circumstances surrounding the incident, a reasonable person would have believed that [they were] free to leave." (United States v. Mendenhall (1980) 446 U.S. 544, 554 (Mendenhall).) But if the circumstances indicate that a reasonable person would not feel free to end the interaction, they have been detained. (California v. Hodari D. (1991) 499 U.S. 621, 628 (Hodari D.).)

In making this determination, we examine the totality of the circumstances. (People v. Brown (2015) 61 Cal.4th 968, 974.) This presents a mixed question of fact and law. (People v. Zamudio (2008) 43 Cal.4th 327, 342.) "[W]e defer to [the trial court's] factual findings if supported by substantial evidence" (Brown, at p. 975), limiting our review to the evidencepresented at the suppression hearing (In re Arturo D. (2002) 27 Cal.4th 60, 77, fn. 18). Based on those facts, we independently determine when the interaction implicated the Fourth Amendment. (Zamudio, at p. 342.)

The circumstances here show that the interaction between Officer Johnson and Olivares ripened into a detention when the officer initiated his patdown search. (Mendenhall, supra, 446 U.S. at p. 554 ["some physical touching of the person" constitutes a detention]; see also People v. Parrott (2017) 10 Cal.App.5th 485, 494 [defendant detained when officer grabbed his arm].) Prior to that point, the encounter was consensual. Upon seeing Olivares walking in the middle of the street, Officer Johnson did not attempt to block his path with his patrol car or otherwise impede his movement. (People v. Perez (1989) 211 Cal.App.3d 1492, 1496; People v. Franklin (1987) 192 Cal.App.3d 935, 940.) The officer's use of a spotlight did not "represent a sufficient show of authority so that [Olivares] did not feel free to leave." (Franklin, at p. 940; see also Perez, at p. 1496.) Officer Johnson was alone, and did not draw his weapon. (Cf. Mendehall, at p. 554 [presence of several officers or display of a weapon may indicate a seizure has occurred].) He asked, rather than commanded, Olivares to stop and walk toward his patrol car. (People v. King (1977) 72 Cal.App.3d 346, 348-350.) He asked, rather than commanded, Olivares to remove his hands from his pockets. (Parrott, at p. 494; In re Frank V. (1991) 233 Cal.App.3d 1232, 1238-1239; Franklin, at p. 941.) And he asked, rather than demanded to know, whether Olivares possessed anything he needed to know about. (Florida v. Bostick (1991) 501 U.S. 429, 434 ["a seizure does not occur simply because a police officer approaches an individual and asks a few questions"].)Under these circumstances, a reasonable person would not feel compelled to interact with law enforcement.

People v. Garry (2007) 156 Cal.App.4th 1100 and People v. Roth (1990) 219 Cal.App.3d 211 (Roth), on which Olivares relies, are distinguishable. In Garry, a detention occurred because the officer shined his spotlight on the defendant,...