Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA337714, Judith L. Champagne, Judge.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Anthony Berry Sullivan, appeals the judgment entered following his conviction, by jury trial, for resisting, delaying or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)). He was sentenced to county jail for a term of one year.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.
On March 12, 2008, while driving their marked patrol car, uniformed Los Angeles Police Officers Neal Oku and Michael Lopez received a combined radio call/mobile digital transmission about possible drug activity in the vicinity of 42nd Street and Broadway. Oku testified: “The radio call was for narcotics activity. In the call, it described a gray Toyota Sequoia with one male occupant. It also gave the exact license plate of the vehicle.”
Oku and Lopez went to the specified location and saw the suspect vehicle parked at the curb. Oku testified there was a single male occupant, later identified as defendant Sullivan, in the driver’s seat. Oku saw “several transients standing near... the passenger side of the vehicle, with one leaning on the passenger window seal [sic].” The officers parked behind the Toyota, activated their overhead lights, and approached on foot.
Lopez walked up to the driver’s door while Oku ordered the people standing around the car to move away. Lopez testified Sullivan was immediately belligerent and aggressive, saying: “What do you want? You have no reason to stop me. I am not doing anything. You guys need to go away. Go do something else[.]” Lopez asked Sullivan to step out of the car as a safety measure because he was “conducting a narcotics investigation.” When Sullivan did not comply, Lopez asked him again. Eventually, Sullivan “swung the door open pretty fast, aggressive. He continued to be very irate, yelling, ‘What are you doing? You can’t do this. I didn’t do anything.”
Sullivan started walking away from Lopez, who asked him to get up onto the sidewalk. Sullivan continued walking away, so Lopez again “asked him to step on the sidewalk and put his hands on top of his head.” Instead, Sullivan took off running. When the officers moved to cut him off, Sullivan tried to punch Lopez in the head. Lopez fell while evading the punch and Sullivan sprinted away. There was a foot chase. Sullivan eventually got tired, stopped running, and was apprehended. A pat-down search for weapons recovered nothing.
During a subsequent search of Sullivan’s car, another officer discovered nine small baggies of a green substance resembling marijuana. At the police station, Sullivan was put into a holding cell and strip-searched by Lopez and Oku, who recovered a bindle containing.88 grams of cocaine base.
The jury acquitted Sullivan of possessing cocaine base, but convicted him of obstructing a peace officer.
CONTENTIONS
1. There was Harvey/Madden error because the prosecution failed to establish an evidentiary basis for the police radio broadcast.
2. There was insufficient evidence Sullivan violated section 148, subdivision (a)(1).
3. The trial court misinstructed the jury on the elements of section 148, subdivision (a)(1).
DISCUSSION
1. Harvey/Madden claim cannot be initially raised on appeal.
Sullivan contends: “Admitting evidence of the radio call, without more than the officers’ bare statements about the call, violated the Harvey-Madden rule, as the prosecution was not required to provide an evidentiary basis for the information. (People v. Harvey (1958) 156 Cal.App.2d 516, 523-524; People v. Madden (1970) 2 Cal.3d 1017, 1021.” He complains “the People failed to present either the dispatcher or the reporting party who gave the alleged information to the dispatcher, as required by Harvey and Madden.” This claim is meritless because Sullivan cannot raise it for the first time on appeal.
The Harvey-Madden rule “holds that, ‘although an officer may make an arrest based on information received through “official channels, ” the prosecution is required to show that the officer who originally furnished the information had probable cause to believe that the suspect committed a felony.’ ” (People v. Rogers (1978) 21 Cal.3d 542, 547.) The purpose of the rule is “to negate the possibility that the facts which validate the conduct of the officers in the field are made up inside of the police department by somebody who is trying to frame a person whom he wants investigated.” (People v. Orozco (1981) 114 Cal.App.3d 435, 444.)
However, because this issue concerns the existence of probable or reasonable cause, it must be raised in the trial court. “The bar against raising a Harvey/Madden issue for the first time on appeal is but an application of the general rule that questions relating to the admissibility of evidence will not be reviewed on appeal in the absence of a specific and timely objection in the trial court on the ground sought to be urged on appeal. [Citations.]” (People v. Rogers, supra, 21 Cal.3d at pp. 547-548.) Hence, the accepted practice is to raise the issue as part of a Fourth Amendment challenge in the trial court. (See, e.g., In re Richard G. (2009) 173 Cal.App.4th 1252, 1260 [requirements of Harvey-Madden rule “can plainly and easily be met by simply calling the police dispatcher as a witness at the suppression hearing”].)
Sullivan has not cited any case allowing this issue to be brought up for the first time on appeal. Sullivan’s reliance on such cases as In re Eskiel S. (1993) 15 Cal.App.4th 1638, is misplaced. In Eskiel, for instance, the defendant “brought a motion to suppress the evidence on the grounds that the detention was unlawful” and “interposed a [Harvey/Madden] objection to admission of evidence of the contents of the radio broadcast....” (Id. at p. 1642, fn omitted.)
Sullivan’s Harvey/Madden claim is denied.
2. Sufficient evidence of obstructing peace officer.
Relying on the principle it is not illegal to resist an unlawful detention, Sullivan contends there was insufficient evidence to sustain his conviction because “the People did not offer sufficient evidence that the officers were lawfully engaged in the performance of their duties when they detained” him. This claim is meritless.
a. Legal principles.
“The legal elements of [section 148, subdivision (a)(1)] are as follows: ‘ “(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.” ’ ” (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.) “Nonviolently resisting an unlawful detention is not a criminal offense, and flight in response to an attempted unlawful detention does not furnish cause to detain.” (In re Eskiel S., supra, 15 Cal.App.4th at p. 1642.)
“A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.) “[I]n order to justify an investigative stop or detention the circumstances known or apparent to the officer must include specific and articulable facts causing him to suspect that (1) some activity relating to crime has taken place or is occurring or about to occur, and (2) the person he intends to stop or detain is involved in that activity. Not only must he subjectively entertain such a suspicion, but it must be objectively reasonable for him to do so: the facts must be such as would cause any reasonable police officer in a like position, drawing when appropriate on his training and experience [citation], to suspect the same criminal activity and the same involvement by the person in question. The corollary to this rule, of course, is that an investigative stop or detention predicated on mere curiosity, rumor, or hunch is unlawful, even though the officer may be acting in complete good faith.” (In re Tony C. (1978) 21 Cal.3d 888, 893, fn. omitted.)
Sullivan argues his detention by Officers Oku and Lopez was illegal because it was not based on reasonable suspicion. He asserts “the prosecution offered only the uncorroborated radio broadcast that relayed uncorroborated, unreliable and anonymous information to the officers and did not establish a basis for a detention.”
However, we do not know if the radio broadcast was based on “unreliable and anonymous information” because, as discussed, ante, Sullivan never made a Harvey/Madden motion in the trial court. Hence, it cannot now be determined from the record if the original tip was anonymous or from a known, reliable informant.
Moreover, to the extent this claim is, in effect, a Fourth Amendment attack on the legality of Sullivan’s detention, it has been waived by his failure to raise the issue below. Fourth Amendment claims have been “barred from consideration[] because of failure to point out the defect in the trial court.” (People v. Moore (1970) 13 Cal.App.3d 424, 434, fn. 8.) This rule covers both a complete failure to raise the issue as well as a failure to specify the particular ground for objection. (See, e.g., People v. Superior Court (Wells) (1980) 27 Cal.3d 670, 673 [where defendant’s trial court suppression motion only alleged evidence was fruit of illegal arrest, he could not claim on appeal arrest was fruit of illegal patdown search]; Coy v. Superior Court (1959) 51 Cal.2d 471, 472-473 [defendant who failed to challenge prosecutor’s refusal to reveal confidential informant’s identity at preliminary hearing could not thereafter rely on this refusal to challenge arrest and search]; People v. McDowell (1972) 27 Cal.App.3d 864, 878-879 [on appeal, defendant could not raise facial invalidity of search warrant where only ground raised below was taint by prior illegal entry].)
In any event, assuming arguendo the radio broadcast originated from an anonymous source, we conclude the officers had reasonable cause to detain Sullivan for investigation of suspected drug trafficking.
Contrary to Sullivan’s argument, his case is not just like Florida v. J.L. (2000) 529 U.S. 266 [120 S.Ct. 1375]. In that case, an anonymous telephone caller said a young African-American man was standing at a particular bus stop, wearing a plaid shirt, and carrying a gun. Officers responding to the scene saw three young African-American men standing at the bus stop, one of whom was wearing a plaid shirt. The men were not engaged in any suspicious behavior. The officers approached the man in the plaid shirt, ordered him to put his hands up, and found a gun in his pocket.
The Supreme Court held J.L. had been illegally detained: “[T]he officers’ suspicion that J.L. was carrying a weapon arose not from any observations of their own but solely from a call made from an unknown location by an unknown caller. Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated [citation], ‘an anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity, ’ [citation]. As we have recognized, however, there are situations in which an anonymous tip, suitably corroborated, exhibits ‘sufficient indicia of reliability to provide reasonable suspicion to make the investigatory stop.’ [Citation.] The question we here confront is whether the tip pointing to J.L. had those indicia of reliability.” (Florida v. J.L., supra, 529 U.S. at p. 270.)
The Supreme Court concluded the requisite indicia of reliability were missing: “Apart from the tip, the officers had no reason to suspect any of the three of illegal conduct. The officers did not see a firearm, and J.L. made no threatening or otherwise unusual movements.” (Florida v. J.L., supra, 529 U.S. at p. 268.) The crucial point in J.L. was that nothing had corroborated the anonymous claim of illegal activity: “An accurate description of a subject’s readily observable location and appearance is of course reliable in this limited sense: It will help the police correctly identify the person whom the tipster means to accuse. Such a tip, however, does not show that the tipster has knowledge of concealed criminal activity. The reasonable suspicion here at issue requires that a tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person. Cf. 4 W. LaFave, Search and Seizure § 9.4(h), p. 213 (3d ed.1996) (distinguishing reliability as to identification, which is often important in other criminal law contexts, from reliability as to the likelihood of criminal activity, which is central in anonymous-tip cases).” (Florida v. J.L., supra, 529 U.S. at p. 272.)
Here, on the other hand, the officers did have information corroborating illegal activity. When they arrived, they saw a group of people clustered around Sullivan’s car. One of those people was leaning into Sullivan’s car. Officer Oku testified this made him suspect a crime might be occurring: “All the circumstances, the radio call, being an exact match to that vehicle, and the people standing around with one of them leaning into the vehicle, is consistent with possible drug sales.” Hence, there was “some objective manifestation that the person detained may [have been] involved in criminal activity.” (People v. Souza, supra, 9 Cal.4th at p. 231.)
Thus, this case is analogous to situations where an anonymous tip is corroborated with regard to its assertion of illegal activity and, therefore, an ensuing temporary detention is valid. (See, e.g., People v. Butler (2003) 111 Cal.App.4th 150, 156 [anonymous tip that suspect was selling drugs from car corroborated when: officer saw apparent hand-to-hand transaction between suspect and woman standing next to car]; Commonwealth v. Brown (Ky. 2008) 250 S.W.3d 631, 636 [anonymous tip that suspect was selling drugs from car corroborated when: officers saw suspect’s car parked behind restaurant; restaurant employee came out, leaned into car and spoke to suspect; then, apparently noticing the police surveillance, employee backed away from the car].)
In sum, we hold Sullivan cannot claim, for the first time on appeal, there was no reasonable cause for his detention because the original tip came from an anonymous source. But, even if we were to reach this claim, we would reject it because the officers’ on-the-scene observations were sufficient to corroborate an anonymous tip.
3. No error in jury instructions.
Sullivan contends the trial court committed instructional error by removing one of the elements of section 148, subdivision (a)(1), from the jury’s consideration. This claim is meritless.
The trial court gave the jury the following instruction: “During the trial certain evidence was admitted for a limited purpose. Specifically testimony by the witnesses regarding a police radio broadcast of a complaint of narcotic activity at the location of 42nd and Broadway, along with a vehicle and suspect description. [¶] This evidence was admitted not for the truth of the matter, but to provide a context for the officers’ presence at the scene. You may consider that evidence only for that purpose and for no other.”
Sullivan argues this instruction impermissibly “relieved the prosecution of proving all elements of the charge of resisting arrest” because it “was likely to be understood by reasonable jurors [to mean] the police were in fact lawfully engaged in their duties and appellant thus had no right to resist the detention and arrest. The phrase ‘to provide a context for the officers’ presence’ in essence told the jurors that the officers were acting lawfully in the course of their duties, a question that the prosecution was required to prove and the jury was required to decide.” Sullivan also argues the instruction, by “referring to ‘certain evidence, ’ meaning the evidence of the marijuana found in appellant’s car – was highly prejudicial and no doubt caused the jury to believe that the officers were legitimately at the scene and appellant acted improperly in walking away from the officers.” (Italics added.)
The latter argument is meritless because the challenged instruction says the “certain evidence” being referred to is the evidence of the radio broadcast. And the former argument is meritless because the remainder of the jury instructions clearly told the jury it had to decide if the officers were acting lawfully.
The jury was instructed the People had to prove Officer Lopez was “lawfully performing or attempting to perform his duties, ” and that Sullivan “willfully resisted, or obstructed, or delayed Officer Lopez in the performance or attempted performance of those duties.” The jury was told “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone, or using unreasonable or excessive force in his or her duties.”
The jury was told the People had to prove Lopez “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, obstructing, or delaying the peace officer in the performance of his duties. A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone, or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention” The jury was told “a peace officer may legally detain someone... if the 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 crime; and, a reasonable officer who knew the same facts would have the same suspicion....” The jury was told that, “[i]n deciding whether the detention was lawful, consider evidence of the officer’s training and experience, and all the circumstances known by the officer when he or she detained the person.”
Contrary to Sullivan’s claim, the challenged instruction did not remove an element of section 148 from the jury’s consideration.
DISPOSITION
The judgment is affirmed.
We concur: KITCHING, J., ALDRICH, J.