Opinion
E063815
01-24-2017
THE PEOPLE, Plaintiff and Respondent, v. EARL WASHINGTON, JR., Defendant and Appellant.
Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth M. Friedman, and Kelley Johnson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FVI1303867) OPINION APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed. Kristin A. Erickson, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Seth M. Friedman, and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
This case arises from a deputy's patdown search of a parolee, defendant Earl Washington, Jr. The prosecution presented evidence Washington became hostile when the deputy reached his buttocks area during the search, and the jury convicted him of felony resisting an executive officer in the performance of his duties. (Pen. Code, § 69.)
On appeal, Washington contends his conviction must be reversed because the trial court did not define a cavity search for the jury or instruct that a cavity search would be unlawful. We affirm because the record does not contain sufficient evidence the deputy intended to conduct an unlawful search to warrant pinpoint instructions on that theory.
I
FACTUAL BACKGROUND
A. Washington's Parolee Status
At the time of the search, Washington was on parole after serving a prison term for assault with a firearm. (§ 245, subd. (a)(2).) The following discussion occurred during motions in limine:
Unlabeled statutory citations refer to the Penal Code. --------
"THE COURT: Well, it seems to me . . . even though it's a parole search . . . [¶] . . . [¶] I think that the district attorney can describe the search, but I'm not sure that the term 'parole' is one that necessarily should go before the jury. What do you think?
"DEFENSE COUNSEL: I would agree with that, your Honor. I was trying to think of how it could be described without having to say that.
"THE COURT: I think just a search.
"DEFENSE COUNSEL: I think just a simple vehicle search. [¶] . . . [¶]
"PROSECUTOR: My concern was that if I have to prove [the deputy] was in the lawful performance of his duty at the time that he conducted his search, it's important to know that he was . . . searching [Washington] under something that's an exception to a warrant requirement.
"THE COURT: If it's not objected to—I mean, obviously if [defense counsel] made an objection to the search, then it seems to me then you would be allowed to use the word 'parole.' However, given the fact that there's not going to be an objection to it, and [the deputy] says, pursuant to my duties I conducted a search. [¶] . . . [¶] And there's no objection and there shouldn't be.
"DEFENSE COUNSEL: No objection."
Based on this discussion, the court excluded evidence of Washington's status as a parolee as overly prejudicial under Evidence Code section 352, with the caveat the evidence would be admissible if Washington decided to challenge the lawfulness of the deputy's conduct.
B. Prosecution's Evidence
1. The deputy
The San Bernardino County deputy who conducted the search said he stopped a white Chevy Camaro around 11:30 p.m. on November 26, 2013 in a "high drug crime" area of Victorville for having a broken taillight and failing to make a complete stop. The Camaro pulled over into a nearby Rite Aid parking lot. Washington's girlfriend, Porsha Prudholme, was driving and Washington was in the passenger seat.
The deputy asked Washington to step out of the car so he could conduct a patdown search. Because of the court's ruling on Washington's parolee status, the deputy described the search as "a lawful search of [Washington's] person." He said he uses the same method every time he performs an over-the-clothing patdown search and this particular search was no different.
He started with Washington's back then moved down to his legs. He said it is his practice during a patdown search to run his hand along the area between a suspect's buttocks for weapons or contraband because he has found that suspects hide weapons and drugs there. When he began to slide the blade of his hand in between Washington's buttocks, Washington tensed, "lunged his hips forward," and told him he was not going to search "that area." The deputy replied that he was going to search the area, and Washington became hostile.
Not knowing whether Washington's behavior would escalate, the deputy attempted to place him in handcuffs. As the deputy secured his left hand, Washington reached toward the Camaro's open passenger side door with his right hand. Concerned Washington might be going for a weapon, the deputy ordered him to the get on the ground with his arms behind his back. Washington did not comply so the deputy forced him to the ground. Washington began violently swinging his right elbow and several of the blows hit the deputy's ribcage. In an attempt to subdue him, the deputy punched him three to four times in the face, to no effect. The deputy repeatedly told Washington to "stop resisting" and put his hands behind his back, but Washington continued to fight.
The deputy warned he would use his taser if Washington did not stop resisting. Washington ignored this warning and tried to crawl toward the Camaro. The deputy tased Washington twice before he was able to stop him from crawling away for long enough to cuff his other hand. The deputy estimated the altercation lasted about one minute.
2. The dispatcher
The dispatcher who rode along with the deputy that night testified at trial and her description of the incident matched the deputy's. She said Washington tried to reach inside the Camaro as the deputy was handcuffing him. When the deputy pulled him away from the Camaro, he began hitting the deputy with his elbows. At some point both men ended up on the ground, and the deputy tased Washington to stop him from crawling towards the Camaro. Because the windows of the patrol car were rolled up, the dispatcher could only see what was happening, she could not hear anything.
C. Defense Evidence
Prudholme testified in Washington's defense. She has known him for 17 years and was dating him at the time of the incident and trial. She said the deputy spoke with her first and learned of her probation status before moving to the passenger side to speak with Washington. She had a clear view of the search because the parking lot was well lit and the passenger door was open.
According to Prudholme, Washington was compliant with the search until the deputy "basically told [Washington] that he was going to cavity search him." She heard Washington reply, "You're not going to cavity search me right here. You can take me to the station and do it." The deputy responded by trying to handcuff Washington, then he slammed Washington to the ground, and "started kind of beating on him." Washington was on his stomach and the deputy was straddling him and "smashing his face into the ground, socking him in the head, [and] elbowing him." The deputy tased Washington once or twice. Prudholme testified Washington never became hostile toward or hit the deputy during the altercation.
On cross-examination, Prudholme said she did not actually see any of the patdown search; she only knew the deputy was searching Washington because she heard him tell Washington he was going to conduct a search. Similarly, she said she did not see what the deputy was doing when she heard him tell Washington he was "basically" going to conduct a cavity search. After she heard Washington refuse, she saw him get slammed to the ground, at which point she stretched out across the passenger seat in order to get a better view of what was happening. However, Prudholme said later during cross that she was able to see the search and the deputy "was like, you know, patting him down or whatever." She said the patting occurred over Washington's clothing and she never saw the deputy put his hands under the clothing.
The defense also called the deputy as a witness. He testified he did not find any weapons or drugs on Washington, and, to his knowledge, no weapons or illegal substances were found in Prudholme's Camaro, which ended up getting towed because she was driving without a license.
D. Rebuttal Evidence
On rebuttal, the deputy testified he never told Washington he was going to conduct a cavity search. To his understanding, a cavity search is conducted "inside the jail where they completely undress the subject, search his, you know, genital area. They have to cough and squat." He said he would never conduct a cavity search on the side of the road and was not aware of any other officers who had done so. He added, "I believe that there was an officer in Texas that just did something similar to that and just got arrested. And I am not losing my job for something like that."
E. Jury Instructions
The parties discussed jury instructions with the court off the record. On the record, the court stated, "we have actually spent a significant amount of time going over the jury instructions." The court asked defense counsel and the prosecutor if they had any objections to the instructions or requests for additional instructions. Both counsel said no.
The court used CALCRIM No. 2652, which instructs the jury: "To prove that the defendant is guilty of [resisting an executive officer], the People must prove that:
"1. The defendant unlawfully used force or violence to resist an executive officer;
"2. When the defendant acted, the officer was performing his lawful duty; and
"3. When the defendant acted, he knew the executive officer was performing his duty.
"An executive officer is a government official who may use his own discretion in performing his job duties. A deputy sheriff for San Bernardino County Sheriff's Department is an executive officer.
"The duties of a deputy sheriff include patrol functions, traffic stops, and lawful searches.
II
DISCUSSION
Washington contends he was entitled to the following three jury instructions: (1) an instruction on the proper legal description of a cavity search, as defined in section 4030; (2) an instruction that a body cavity search would not have been lawful under the circumstances of this case; and (3) an instruction on mistake of fact, which would allow the jury to acquit him if it found he subjectively believed the officer was going to perform a cavity search. Washington asserts the court had a sua sponte duty to provide these instructions or, in the alternative, trial counsel rendered ineffective assistance by failing to ask for them.
On appeal, we review claims pertaining to instructions de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) We determine the correctness of the challenged instruction "in the context of the instructions as a whole and the trial record," and not "'in artificial isolation.'" (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.)
"[I]n criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 154.) "A judge must instruct on the law applicable to the facts of the case and a defendant has a right to an instruction that pinpoints the theory of the defense." (People v. Ponce (1996) 44 Cal.App.4th 1380, 1386 (Ponce).)
"[H]owever, a trial judge must only give those instructions which are supported by substantial evidence." (Ponce, supra, 44 Cal.App.4th at p. 1386, citing People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.) As our high court has explained, a court's obligation to instruct on a defense theory does not arise in the face of just "any [supporting] evidence, no matter how weak"; rather, the obligation arises "only when the evidence is substantial enough to merit consideration by the jury." (People v. Hagen (1998) 19 Cal.4th 652, 672, alteration in original.) In this context, "evidence is 'substantial' only if a reasonable jury could find it persuasive." (Ibid., citing People v. Barton, supra, at p. 201, fn. 8.) "[U]nsupported theories should not be presented to the jury." (People v. Marshall (1997) 15 Cal.4th 1, 40.)
Here, Washington's theory the deputy was about to engage in an unlawful rectal cavity search under section 4030 is not supported by the record and therefore no pinpoint instructions were required. Washington is correct there is an evidentiary dispute as to whether the deputy intended to conduct a cavity search. The deputy said he intended only to conduct a patdown search of Washington's buttocks area and had no intention of conducting a cavity search; Prudholme, on the other hand, said she heard the deputy tell Washington he was going to perform a cavity search. But this evidentiary dispute does not warrant pinpoint instructions on a defense theory that a cavity search would have been unlawful under section 4030. This is because the record contains no evidence as to the manner in which the cavity search would have been performed, and section 4030's warrant requirement does not apply to parolees.
Section 4030 "appl[ies] only to prearraignment detainees arrested for infraction or misdemeanor offenses and to any minor detained prior to a detention hearing on the grounds that he or she is a person described in Section 300, 601, or 602 of the Welfare and Institutions Code alleged to have committed a misdemeanor or infraction offense." (§ 4030, subd. (b).) Section 4030 requires law enforcement to obtain a warrant before conducting a "physical" body cavity search, which entails "physical intrusion into a body cavity for the purpose of discovering any object concealed in the body cavity." (§ 4030, subds. (c)(2), (g).) In order to perform a "visual" cavity search (which involves only a "visual inspection" of a body cavity), law enforcement must have reasonable suspicion the suspect is concealing a weapon on contraband and "prior written authorization of the supervising officer on duty." (§ 4030, subds. (c)(4), (e).) Section 4030 also mandates any cavity search, whether visual or physical, "shall be conducted in an area of privacy so that the search cannot be observed by persons not participating in the search." (§ 4030, subd. (l).)
As a parolee, Washington was given notice under section 3067 that he "is subject to search or seizure by a probation or parole officer or other peace officer at any time of the day or night, with or without a search warrant or with or without cause." (§ 3067, subd. (b)(3); see also People v. Smith (2009) 172 Cal.App.4th 1354, 1361 (Smith).) In Smith, the court stated section 4030 "governs strip searches of minors and prearraignment detainees arrested for infraction and misdemeanor offenses" and is inapplicable to parolees. (Smith, supra, at p. 1366, fn. 8.) When a parolee is strip or cavity searched, the relevant inquiry is whether the search violated the parolee's reduced rights under the Fourth Amendment to be free from "arbitrary, capricious, or harassing" warrantless searches. (Id. at pp. 1361-1362, 1366, fn. 8.)
Like Washington, the defendant in Smith was a parolee. On appeal, the defendant argued the visual search of his genitalia in broad daylight violated section 4030 and the Fourth Amendment. (Smith, supra, 172 Cal.App.4th at p. 1363.) The court found the search was reasonable under the Fourth Amendment because the officers moved the defendant to "a less exposed location" in the back of a hotel parking lot "in an area that did not face the street, was fenced off on at least one side, and was not heavily frequented" and they "stood around [the defendant] to obstruct visibility." (Ibid.)
Based on this standard, we can imagine various scenarios in which a warrantless cavity search of a parolee would not be considered arbitrary, capricious, or harassing. As noted, section 4030 does not require a warrant for visual cavity searches, it requires only that officers obtain supervisor authorization and conduct the search in a private location. (§ 4030, subd. (e), (f).) Therefore, hypothetically, if the deputy in fact intended to conduct a cavity search, he could have also intended to relocate Washington to a more private area and obtain authorization for a visual cavity search. A search under those circumstances would be similar to the lawful search in Smith. (Smith, supra, 172 Cal.App.4th at p. 1363.)
Here, there was no evidence as to how the deputy would have conducted the cavity search if he planned to conduct one. Prudholme testified only that she heard him say he was going to perform a cavity search. She did not see him pull out latex gloves, attempt to take off Washington's pants, or order Washington to take off his pants. The deputy testified Washington resisted as soon as he reached his buttocks area. On this record, there was no time for the deputy to do anything to establish whether he would conduct a lawful or unlawful cavity search. Put differently, there was no evidence that would allow a reasonable jury to conclude the deputy planned to conduct an arbitrary, capricious, or harassing search, and as a result the court's obligation to provide pinpoint instructions never materialized.
Washington contends regardless of whether an unlawful cavity search was in fact imminent, he believed one to be and therefore was entitled to an instruction on mistake of fact. This argument fails because a defendant's subjective belief about the lawfulness of the officer's conduct is irrelevant to the offense of resisting an executive officer.
Section 69 makes it a crime to "knowingly resist[], by the use of force or violence, [an executive] officer, in the performance of his or her duty." (§ 69, subd. (a).) Our high court interprets statutes like section 69 that punish crimes committed against peace officers engaged in the performance of their duties as imposing an objective standard for determining whether the officer was acting lawfully at the time of the offense. As the court explained in People v. Jenkins (2000) 22 Cal.4th 900 (Jenkins), "when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed." (Id. at p. 1020, citing In re Manuel G. (1997) 16 Cal.4th 805, 815 [applying rule to section 69].) "Disputed facts relating to the question whether the officer was acting lawfully are for the jury to determine when such an offense is charged." (Jenkins, supra, at p. 1020.)
The rule is an objective one that operates without regard to a defendant's subjective state of mind. "Rather, the rule is based upon the statutory definition of the crime, and 'flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful. . . .' [Citation.] Accordingly, the defendant's subjective understanding that the officer's conduct was lawful is not an element of proof." (Jenkins, supra, 22 Cal.4th at pp. 1020-1021, italics added.) The Bench Notes for CALCRIM No. 2670 (determining lawful performance of duties) cite to Jenkins and state the prosecution must prove the officer's conduct "as an objective fact" and "[t]he defendant's belief about whether the officer was or was not acting lawfully is irrelevant." (Judicial Council of Cal. Crim. Jury Instns. (2016 edition) at p. 549.) In other words, what matters for a section 69 conviction is not whether the defendant believed the officer was engaged in lawful activities, but whether the officer was in fact engaged in lawful activities. That Prudholme's testimony could support an inference Washington believed the deputy was going to perform a cavity search is irrelevant to whether he violated section 69.
Washington argues the instruction for resisting an executive officer (CALCRIM No. 2652) supports his contention that the prosecution was required to prove he had "actual knowledge" the deputy was acting lawfully. Washington misunderstands the instruction. The relevant portion of CALCRIM No. 2652 states the prosecution must prove: "When the defendant acted, he knew the executive officer was performing his duty." (Italics added.) This portion contains no reference to the lawfulness of the officer's actions. By its terms, it requires proof the defendant knows the person he is resisting is an officer performing his duties. Contrary to Washington's assertion, it does not require proof the defendant knows the officer is acting lawfully. (Jenkins, supra, 22 Cal.4th at pp. 1020-1021.) The evidence was undisputed Washington knew the deputy was a peace officer performing a search of his person. This is all that is required to satisfy the actual knowledge portion of section 69.
Last, Washington argues the court erred by essentially directing the jury to find the deputy's conduct was lawful. He points out the court allowed the deputy to testify he was performing a "lawful search" and then instructed the jury that "[t]he duties of a deputy sheriff include . . . lawful searches." This argument strikes us as somewhat disingenuous. The reason the deputy referred to the patdown as a "lawful search" was to avoid explaining to the jury that Washington was a parolee who had been advised of and accepted the parole condition of warrantless, suspicionless searches. The parties agreed the only way the jury would hear evidence of Washington's parolee status was if defense counsel decided to challenge the lawfulness of the search. Moreover, Washington suffered no prejudice from the deputy's description of the patdown search as lawful because, as explained, Prudholme's testimony did not render lawfulness a disputed issue in this case.
In sum, there was no reason for further instruction on lawful performance of duty and we therefore reject Washington's claims of court error and ineffective assistance of counsel.
III
DISPOSITION
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
SLOUGH
J. We concur: MILLER
Acting P. J. CODRINGTON
J.