People v. Spicer CA1/2

Filed 10/17/13 P. v. Spicer CA1/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, A136725 v. LENNIE RAMON SPICER, (San Francisco City & County Super. Ct. No. 218151) Defendant and Appellant.

After a jury trial, defendant Lennie Ramon Spicer was convicted of misdemeanor resisting, obstructing, or delaying a peace officer (Pen. Code, § 148, subd. (a)(1)),1 and was found not guilty on two felony counts of threatening an executive officer (§ 69). Defendant appeals his conviction and asserts that an element of section 148, subdivision (a)(1) is that the delay or resistance was done while the officer was acting lawfully. Defendant maintains the officer was unlawfully attempting to arrest him when defendant walked away because the evidence, according to defendant, does not support probable cause to arrest. (See § 836.) He thus claims that his due process rights were violated because insufficient evidence supports his conviction. We conclude that the record supports a finding of probable cause to arrest and affirm the judgment. BACKGROUND On June 22, 2012, an information was filed charging defendant with one felony count of making a criminal threat (§ 422), one felony count of threatening an executive

1 All further unspecified code section references are to the Penal Code.

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officer (§ 69), and one misdemeanor count of resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)(1)). The information further alleged a prior conviction within the meaning of the Three Strikes Law (§§ 667, subds. (d)-(e), 1170.2, subds. (b)-(c)), and a five-year prior serious felony conviction enhancement (§ 667, subd. (a)(1)). Defendant filed a motion to suppress evidence, which the trial court denied on August 21, 2012. Defendant also filed a motion to set aside the two felony counts charged in the information. On August 22, 2012, the court granted defendant’s motion to set aside the threatening an executive officer count (§ 69). Subsequently, on August 27, 2012, the court granted the prosecutor’s motion to amend the information to add a second felony count of making a criminal threat (§ 422). The jury trial began on August 28, 2012.2 Officer Daniel Taft testified that the incident involving defendant occurred on April 21, 2012, when Taft was patrolling the Tenderloin neighborhood in San Francisco on bicycle and in uniform. Prior to this incident, Taft estimated that he had been involved in a minimum of 50 narcotics investigations during his four and one-half years on the police force. He noted that the Tenderloin was known for low-level narcotics sales, such as crack cocaine. A different area, known as “Pill Hill” near Golden Gate and Leavenworth, was known for transactions involving Vicodin, OxyContin, and Hydrocodone. Officer Taft stated that he was riding his bicycle on the sidewalk at the southeast corner of Turk and Taylor in the Tenderloin and, when he “rounded the corner,” he spotted defendant and another man. The two men were about 10 feet in front of him on the sidewalk. He observed that defendant “had a small orange prescription bottle in one of his hands.” The officer saw defendant remove from the bottle “what appeared to be a small white pill” and hand it to the other man. Based on his training and experience, Taft suspected that he “just witnessed a street-level narcotics transaction.” He did not see any money exchanged between the two men. When questioned about how he was to respond to witnessing a suspected narcotics transaction on the street, Taft answered: “Well, we’re