Filed 2/10/15 P. v. Walton CA1/5
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION FIVE




THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A141180
v.
ROBERT L. WALTON,                                                    (San Francisco County
                                                                     Super. Ct. No. SCN220955)
         Defendant and Appellant.


         Robert L. Walton challenges the denial of his motion to suppress evidence seized
from him after he was detained by police. Walton’s sole contention on appeal is that the
police’s use of excessive force converted an admittedly permissible investigative
detention into a de facto arrest. He claims the trial court erred in denying his motion to
suppress and seeks reversal of his conviction so that he may withdraw his guilty plea.1
         We conclude that under the circumstances of this case, the actions of the police
did not convert the detention into a de facto arrest. Accordingly, we will affirm.


1
 Although Walton’s conviction was entered after a negotiated disposition in which he
pleaded guilty to one of the charges against him, this does not preclude him from
challenging the denial of his motion to suppress. (Pen. Code, § 1538.5, subd. (m) [“A
defendant may seek further review of the validity of a search or seizure on appeal from a
conviction in a criminal case notwithstanding the fact that the judgment of conviction is
predicated upon a plea of guilty.”]; Cal. Rules of Court, rule 8.304(b)(4)(A) [no
certificate of probable cause required for appeal from denial of motion to suppress under
Pen. Code, § 1538.5].)

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                       FACTUAL AND PROCEDURAL BACKGROUND
       At the preliminary hearing San Francisco Police Officer Craig Tiffe testified that
at 5:46 p.m. on June 1, 2013, he and his partner Officer Eric Reboli were at 16th and
Mission Streets, looking for narcotics activity. Officer Tiffe had a crime alert notification
advising that on May 21, 2013, two suspects had robbed two victims at the Eula Hotel on
16th Street. The notification gave descriptions of the two suspects, who were identified
as David Jason White and Rachael Barnes. It also included images taken from the hotel’s
surveillance system.
       While at 16th and Mission, Officer Tiffe saw Barnes, whom he knew “by name
and by person[.]” Standing with Barnes was an adult African-American man who
matched the general description of the crime alert notification. Officer Tiffe directed
Officers Obidi and Mayo to detain the man to determine his identification. While Officer
Tiffe continued his surveillance, Officers Obidi and Mayo approached the man, who was
later identified as Walton. When Walton saw the officers, he “quickly walked away.”
Walton began to run when Officer Obidi ordered him to stop.
       As Walton and the officers ran down 16th Street, Officer Obidi ordered him to
stop “or he would strike him with his department-issued baton.” When Walton refused to
stop, Obidi struck him with the baton. As Walton and Obidi struggled at the southwest
corner of 16th and Hoff Streets, Walton reached toward the area of his waist band.
Officer Mayo arrived to assist Officer Obidi. Either Officer Obidi or Officer Mayo
attempted a carotid restraint on Walton, who was subsequently struck again with the
baton. During the course of the struggle, Officer Obidi heard a metallic object strike the
pavement. The metallic object was a loaded firearm.
       Walton was arrested and handcuffed while he lay on the ground. A search of his
person uncovered suspected heroin, marijuana, and pills. Officers also seized a
distinctive key chain and a cell phone. Officers Tiffe and Reboli searched Walton’s car,
which was parked at 16th and Mission. The officers found suspected cocaine, narcotics
paraphernalia, ammunition, and various articles of clothing. The clothing found in the
car matched that worn by the male suspect in the Eula Hotel surveillance video.


                                             2
       On October 1, 2013, the San Francisco District Attorney filed an information
charging Walton with: possession of heroin and cocaine base while armed with a firearm
(Health & Saf. Code, § 11370.1, subd. (a); count one); possession of heroin (Health &
Saf. Code, § 11350, subd. (a); count two); possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1); count three); carrying a concealed firearm by a convicted person
(Pen. Code, § 25400, subd. (a)(2); count four); carrying a loaded firearm by a convicted
person (Pen. Code, § 25850, subd. (a); count five); and misdemeanor resisting a peace
officer in the performance of his duties (Pen. Code, § 148, subd. (a)(1); count six). The
information also alleged two strike priors (Pen. Code, §§ 667, subds. (d) & (e), 1170.12,
subds. (b) & (c)) and four prior prison terms (Pen. Code, § 667.5, subd. (b)). At
arraignment, Walton pleaded not guilty and denied all enhancements.
       On November 20, 2013, Walton filed a motion under Penal Code section 1538.5 to
suppress evidence. On January 31, 2014, the court denied the motion.
       On February 3, 2014, pursuant to a negotiated disposition, Walton pleaded guilty
to possession of firearm by a felon (count three). All other counts and enhancements
were dismissed in the interests of justice.
       On February 26, 2014, the court sentenced Walton to the low term of 16 months.
Because Walton’s presentence credits exceeded his sentence, the court deemed his
sentence to have been served.
       On February 27, 2014, appellant filed timely notice of appeal.
                                        DISCUSSION
       Walton’s sole argument on appeal is that the police’s use of excessive force
subjected him to a de facto arrest that was not supported by probable cause. We will
briefly set out our standard of review and the governing legal principles before analyzing
Walton’s contention.
I.     Standard of Review and Governing Law
       “In ruling on a motion to suppress, the trial court must find the historical facts,
select the rule of law, and apply the rule to the facts in order to determine whether the law
as applied has been violated. [Citation.] We review the trial court’s resolution of the


                                              3
factual inquiry under the deferential substantial evidence standard. [Citation.] Selection
of the applicable law is a mixed question of law and fact that is subject to independent
review. [Citation.]” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 284.)
Evidence challenged as having been obtained as a result of an unreasonable search or
seizure may be suppressed only if it was seized in violation of the Fourth Amendment to
the federal Constitution. (People v. Camacho (2000) 23 Cal.4th 824, 847 (Camacho).)
       “It is the People’s burden to justify a warrantless search.” (People v. Schmitz
(2012) 55 Cal.4th 909, 915, fn. 4.) The defendant has the burden of filing a motion
asserting the absence of a warrant, and if the People offer a justification for the
warrantless search, of presenting arguments as to why the People’s justification is
inadequate. (Ibid.)
       “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 (Souza).) The
reasonable suspicion necessary to justify a brief, investigative detention is less than that
required to establish probable cause to arrest. (Id. at p. 230.) “ ‘[T]he determination of
reasonable suspicion must be based on commonsense judgments and inferences about
human behavior.’ [Citation.]” (People v. Letner and Tobin (2010) 50 Cal.4th 99, 146.)
Possible innocent explanations for the circumstances relied on by a police officer do not
necessarily preclude the possibility of a reasonable suspicion of criminal activity. (Ibid.)
The question is not whether particular conduct is innocent or guilty but rather the degree
of suspicion that attaches to particular noncriminal acts. (Id. at p. 147.)
       A general description of a suspect, when combined with other circumstances
known to the officer, may justify a detention. (In re Carlos M. (1990) 220 Cal.App.3d
372, 381-382 (Carlos M.).) Such circumstances include being near the crime site and in
the presence of a person who closely resembles a described suspect. (Id. at p. 382.)
Evasive actions by a suspect may also support an officer’s suspicion that criminal activity



                                                4
is afoot and that the suspect is involved in that activity. (Souza, supra, 9 Cal.4th at
p. 241.)
       “[A]n investigative detention may, at some point, become so overly intrusive that
it can no longer be characterized as a minimal intrusion designed to confirm quickly or
dispel the suspicions which justified the initial stop. [Citation.] When the detention
exceeds the boundaries of a permissible investigative stop, the detention becomes a de
facto arrest requiring probable cause. [Citation.] However, there is no hard and fast line
to distinguish permissible investigative detentions from impermissible de facto arrests.
Instead, the issue is decided on the facts of each case, with focus on whether the police
diligently pursued a means of investigation reasonably designed to dispel or confirm their
suspicions quickly, using the least intrusive means reasonably available under the
circumstances. [Citations.]” (Carlos M., supra, 220 Cal.App.3d at pp. 384-385.) The
police may restrain a suspect under detention when he is suspected of having committed a
felony or when restraint is reasonably necessary to effect the detention. (People v. Celis
(2004) 33 Cal.4th 667, 676 (Celis) [police may draw their guns or use handcuffs when
stopping someone suspected of committing a felony]; Carlos M., supra, at p. 385 [“the
issue is whether the restraint employed exceeded that which was reasonably necessary for
the detention”].)
       We now apply these principles to the case before us.
II.    Walton’s Detention Did Not Exceed the Boundaries of a Permissible Investigative
       Stop.
       Walton concedes that once he broke into a run, the police had a reasonable basis to
suspect that he might have been involved in criminal activity. He further concedes the
officers “were permitted under the Fourth Amendment to briefly detain [him] to
investigate that suspicion, by confirming his identity.” He nevertheless argues that the
officers subjected him to a de facto arrest, unsupported by probable cause, when they
used excessive force on him. Walton objects in particular to the attempted carotid
restraint. In his view, “the amount of force applied by [the officers] in the present case
transformed what would have been a lawful detention (requiring less than probable


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cause) into an arrest (requiring probable cause).” (People v. Rivera (1992) 8 Cal.App.4th
1000, 1007.)
       Walton contends the only circumstance that arguably would have supported the
police’s use of intrusive means to effect the stop was his flight from the officers.2 While
we agree his attempted flight is a significant factor, we cannot agree this was the only
circumstance supporting the officers’ use of force to effect the detention.
       The facts known to the officers are relevant in determining whether their actions
went beyond what was necessary “to quickly dispel or confirm police suspicions of
criminal activity.” (Celis, supra, 33 Cal.4th at p. 676.) A police department
communication, coupled with an officer’s observations at the scene, can support the
decision to use force to effect a detention. (See People v. Soun (1995) 34 Cal.App.4th
1499, 1518-1519 (Soun) [police department communication and officer’s observations at
scene supported officer’s decision to remove suspect from car at gunpoint, to make him
lie on the ground, and to place him in handcuffs in patrol car; police actions did not
convert detention into de facto arrest].) The need to prevent a suspect’s flight will
support a show of force by the police (Celis, supra, at p. 676), as will a refusal to obey
police officers’ commands. (In re Antonio B. (2008) 166 Cal.App.4th 435, 441-442.)
“The more specific the information an officer has about a suspect’s identity,
dangerousness, and flight risk, the more reasonable a decision” to use intrusive measures
will be. (People v. Stier (2008) 168 Cal.App.4th 21, 27 (Stier).)
       On the day Walton was detained, Officer Tiffe had with him a police department
crime alert. The alert contained photographs of two suspects in the armed robbery at the

2
  Walton draws a list of circumstances that will justify the police’s use of intrusive means
from Washington v. Lambert (9th Cir. 1996) 98 F.3d 1181. In that case, the Ninth Circuit
set out several circumstances in which courts had “allowed the use of especially intrusive
means of effecting a stop[.]” (Id. at p. 1189.) Obviously, we are not bound by the
opinions of lower federal courts interpreting the Fourth Amendment, and we may
properly look to California precedent. (Camacho, supra, 23 Cal.4th at p. 830, fn. 1.) In
any event, the Ninth Circuit itself has explained that the circumstances set forth in
Washington v. Lambert do not constitute an exhaustive list. (Green v. City and County of
San Francisco (9th Cir. 2014) 751 F.3d 1039, 1047.)

                                              6
Eula Hotel. It described the first suspect as a 32-year-old black male, six feet in height,
and weighing 190 pounds.3 The male suspect was believed to be David Jason White.
The other suspect was a white female who was believed to be Rachael Barnes. The alert
reported that the male suspect had forced his way into a hotel room, pointed a silver
handgun at the victim, and stolen two backpacks after hitting the victim with the
handgun.
       While at 16th and Mission Streets, Officer Tiffe recognized Barnes, whom he
knew “by name and by person[.]” Thus, Walton was himself suspected of having
committed armed robbery (a felony), was in the company of the other person identified in
the alert as a suspect in that armed robbery, and was near the scene of the earlier crime.
(Celis, supra, 33 Cal.4th at p. 676 [police may use force to detain individual suspected of
felony]; Soun, supra, 34 Cal.App.4th at pp. 1518-1519 [police department letter and
observations of crime scene supported use of force].) Walton also matched the general
description of the first suspect in the crime alert, and that suspect had been armed with a
gun. (Stier, supra, 168 Cal.App.4th at p. 27 [more intrusive detention permitted where
police have reasonable basis to believe suspect poses physical threat].) When Walton
saw the police, he fled and then refused their orders to stop. (Celis, supra, at p. 676
[show of force reasonable to prevent suspect’s flight]; In re Antonio B., supra, 166
Cal.App.4th at pp. 441-442 [refusal to obey police orders supports use of intrusive
measures].) Given these facts, the record does not support Walton’s contention that the
police used excessive force in detaining him. (See People v. Johnson (1991) 231
Cal.App.3d 1, 13 [where defendant fled and refused to obey police commands, police

3
  At the preliminary hearing, Walton was described as either six feet, one inch or six feet,
two inches tall and weighing 220 pounds. At the time of his arrest, he was 36 years old.
Although Walton did not exactly match the description in the crime alert, the officers
were justified in detaining him because he matched the general description of the first
suspect in the Eula Hotel robbery. (See People v. Craig (1978) 86 Cal.App.3d 905, 911-
912.) In addition, he was seen with Barnes, who had been identified as a suspect in the
robbery and who was known to Officer Tiffe. (See Carlos M., supra, 220 Cal.App.3d at
p. 382 [defendant’s proximity to specifically described suspect near site of crime
provided grounds to detain].)

                                              7
used reasonable force when two officers subdued defendant by wrestling with him for
five minutes and placing him in handcuffs].)
       “[I]t is inappropriate for judges to second-guess on-the-spot decisions of officers
in the field under these circumstances.” (People v. Wilson (1997) 59 Cal.App.4th 1053,
1063.) We are particularly disinclined to do so in this case, given the obvious public
safety concerns present when an incident occurs in a congested urban area at a time when
there is “very busy traffic.” (See People v. Turner (2013) 219 Cal.App.4th 151, 169
[court considered threat to public safety posed by suspected gun possession on high
school grounds during crowded football game; police justified in detaining and
handcuffing suspect at gunpoint].)
       We therefore hold the trial court did not err in denying Walton’s motion to
suppress. Since we have concluded the denial was not erroneous, we need not address
Walton’s contention that the improper denial of the motion requires reversal so that he
may withdraw his plea.
                                       DISPOSITION
       The judgment is affirmed.




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                                _________________________
                                Jones, P.J.




We concur:


_________________________
Needham, J.


_________________________
Bruiniers, J.




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