Filed 6/20/13 In re A.L. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

In re A.L., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent,

v. A.L., Defendant and Appellant. D061800
(Super. Ct. No. JCM222463)

APPEAL from an order of the Superior Court of Sa n Diego County, Laura H. Parsky and Richard R. Mo nroy, Judges, and Peter Fagan, Temporary Judge. * Affirmed.

Laurel M. Nelson, under appointment by the Court of Appeal , for Defendant and Appellant.

* Pursuant to article VI, secti on 21 of the Califor nia Constitution.2 Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, A ssistant Attorney General, James D. Dutton and Donald W. Ostertag, Deputy Attorneys General, for Plaintiff and Respondent. A.L. appeals from the juvenile court's orde r declaring him a ward of the court after sustaining an amende d petition alleging he violated Penal Code 1 section 148, subdivision (a)(1) (resisting, delaying or obstructing a peace officer; count 1) and section 594, subdivision (a) (vandalism; count 2), and af ter making a true finding that A.L. committed the vandalism for the benefit of, at the direction of, or in asso ciation with a criminal street gang with the specific intent to promote, further or assist criminal conduct by gang members in violation of sec tion 186.22, subdivision (d). A.L. contends the trial court erred when it found he resisted or obstructed a police officer in count 1 because th e police officer who arrested him used excessive force and was therefore acting unlawfully. A.L. also c ontends the trial court erred when it denied his motion to suppress evid ence stemming from his arrest on count 2 because the arresting officer only had probable cause to believe that A.L. committed a misdemeanor, not a felony, and therefore the arresting offi cer first had to obtain an arrest warrant because the crime was not committe d in the officer's presence. As we explain, we disagree with these c ontentions and affirm the order declaring A.L. a ward of the court.

1 All statutory references are to th e Penal Code unless noted otherwise.3 DISCUSSION I Resisting Arrest (§ 148, subd. (a)(1)) A.L. contends there is insufficient evid ence to support the finding he violated section 148, subdivision (a)(1) because the prosecution failed to establish that the arresting officer was engaged in the performan ce of his lawful duties at the time he handcuffed and arrested the minor. A. Background San Diego Police Officer Zack Pfannenstiel testified he received a "hot call" from dispatch about 10:40 p.m. on January 5, 2012, about a group of Hispanic males— including one carrying a gun—running in an area in Linda Vista known for its gang activity. Police believed the males had been in volved in a "disturban ce fight." At least five patrol units responded to the call, as did a police helicopter and a canine unit. When Officer Pfannenstiel arrived at the sc ene, two of the individuals in the group had been apprehended. Officer Pfannenstiel recognized one of th ose individuals as a member of the criminal street gang Linda Vist a 13. Officer Pfannenstiel testified he was familiar with members of this gang and their monikers. Based on the information provided from dispatch, Officer Pfannenstiel and his partner then proceeded to the location where the other indi viduals had been seen running. At that point, Officer Pfannenstiel spotted three other individuals near an apartment complex. Officer Pfannenstiel recognized one of the indivi duals as A.L., who went by4 the moniker "Alex Boy," and who Officer Pf annenstiel had previously encountered at least four or five times while on patrol in the area. According to Officer Pfannenstiel, A.L. also matched the descri ption given by dispatch of one of the individuals seen running in the area. As the o fficers in their marked patrol car approached the individuals, they took off running, A.L. included. Office r Pfannenstiel got out of the patrol car and yelled, "Stop. Police." He then star ted chasing the three individuals on foot. Officer Pfannenstiel testified that he believed one of th e three individuals he was chasing was armed because police had not found a gun on the tw o individuals they already had detained and beca use the initial report was that one of individuals in the group was seen with a gun. While Officer Pf annenstiel gave chase, his partner drove the police car up a small driveway near an apartment complex. At some point, the three individuals must have seen the patrol car b ecause, according to Officer Pfannenstiel, they tried to "double back." As they did, A.L. ran right into Officer Pfannenstiel's path. Officer Pfannenstiel testified he ordered A.L. to the ground, but the minor refused. At that point, Officer Pfannenstiel was not su re whether A.L. was carrying a gun or other weapon, although he testified th at in his experience a large percentage of gang members carry "guns, knives, something" and thus, when dealing with such individuals, Officer Pfannenstiel assumes they are armed. Officer Pfannenstiel next pushed A.L. to th e ground. After he had done so, A.L. clenched his fists and tensed his upper b ody, as demonstrated by Officer Pfannenstiel while testifying on the witness stand. Officer Pfannenstiel testified he thought5 "something [was] coming" from A.L. at this point. Because A.L. also was not following Officer Pfannenstiel's orders to roll over and/or to stop resisting and continued to tense his body and clench his fists, Officer Pfannenstiel testified he punched A.L. once in the stomach as a "distraction blow." Officer Pfannenstiel, who was alone at the time, again ordered A.L. to roll over onto his stomac h. When A.L. did not comply, Officer Pfannenstiel testified he rolled A.L. over an d handcuffed him. As Officer Pfannenstiel was apprehending A.L., he saw the two other individuals he had been chasing hiding behind a bush. One of thos e individuals Officer Pfannenstiel knew as also being a member of the criminal stre et gang Linda Vista 13. Officer Pfannenstiel next placed A.L. in the back of the patr ol car. Because the back partition inside the patrol car was open, A.L. leaned up and spat on the car seat and on parts of the front dash of the patrol car. A.L. did not suffer any injuries and declined medical treatment. At the conclusion of the testimony, the c ourt found beyond a reasonable doubt that A.L. "willfully and unlawfully" resisted arre st in violation of section 148, subdivision (a)(1). In making its finding, the court found Officer Pfannenstiel "not only was credible, but having sat right next to th e officer, I find there to be a certain affinity between the officer and [A.L.] and I don't fi nd there to be any hostility or an imosity at all. I think the officer was doing his job and he was carrying his job out to the best of his abilities given the very difficult circumstances that he was under that evening. And I think if [Officer Pfannenstiel and A.L.] are [to] run into each other again in the future on the street, it6 would be an amicable encounter again if the circumstances are not similar to the January 5th evening. I thought the offi cer showed due restraint in a ve ry difficult situation, and as I said, shows no animosity towards [A.L.] at all. So I am fi nding Count 1 to be true." B. Governing Law To establish a violation of section 148, subdivision (a)(1), the prosecution must show that (1) the defendant w illfully resisted, delayed, or obstructed a peace officer, (2) who was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have know n the other person was a pea ce officer engaged in the performance of his or her dutie s. (§ 148, subd. (a)(1); In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.) "The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without re ference to an intent to do a further act or achieve a future consequence." ( In re Muhammad C. , supra , at p. 1329.) When the sufficiency of the evidence is challenged on appeal as in the instant case, we "review the whole reco rd in the light most favorable to the judgment [or order] below to determine whether it discloses subs tantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ( People v. Johnson (1980) 26 Cal.3d 557, 578.) In viewing the evidence favorably to the judgment or order, we must also "'presume in support of the judgment [or order] the existence of ever y fact the trier could reasonably deduce from the evidence. [Citation. ] If the circumstances reasonably justify the trial court's findings, reversal is not warranted merely because the circumstances7 might also be reasonably reconciled with a contrary finding. [Citations.]'" ( In re Ryan N

. (2001) 92 Cal.App.4th 1359, 1372.) "The same standard of appellate review is applicable in considering the sufficiency of the evidence in a juvenile proceeding as in reviewing the sufficiency of the evidence to su pport a criminal conviction." ( In re Sylvester C . (2006) 137 Cal.App.4th 601, 605.) As relevant here, a "[d]efendant cannot be convicted of an offense against an officer engaged in the performance of o fficial duties unless the officer was acting lawfully at the time. [Citation. ] 'The rule flows from the pr emise 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 offi cer's conduct is unlawful. [Citations.]' [Citation.]" ( People v. Simons (1996) 42 Cal.App.4th 11 00, 1109, fn. omitted.) Thus, when a peace officer employs reasonabl e force to make a lawful arrest, the officer is acting in the performance of his or her duties; the arrest ee is obliged not to resist and has no right of self-d efense against such force. ( People v. Adams (2009) 176 Cal.App.4th 946, 952; In re Bacon (1966) 240 Cal.App.2d 34, 52, disapproved on other grounds as stated in In re Brown (1973) 9 Cal.3d 612, 623 [no ting that "it is the duty of every citizen to submit to lawful arrest"].) However, a peace officer is not engaged in the performance of his or her duties if an arrest is unlawful. An arrest is unlaw ful if the officer uses excessive force. ( People v. Delahoussaye (1989) 213 Ca l.App.3d 1, 7; People v. Olguin (1981) 119 Cal.App.3d 39, 45.)8 C. Analysis Here, A.L.'s contention involves the second element of section 148, subdivision (a)(1), to wit: the requirement that Office r Pfannenstiel was enga ged in the performance of his lawful duties. A.L. contends there is insufficient evidence to establish this element because Officer Pfannenstiel used excessive and unreasonable forc e. We disagree. We conclude ample evidence in the record supports the finding that when Officer Pfannenstiel pushed A.L. to the ground, he used objectively reasonable force as the officer was then facing "very difficult circumstances" as fo und by the juvenile court, which included chasing known members of a criminal street gang late at night, while concerned that one or more of those member s could be armed, and doing so alone. The record also shows that A.L. initially ran when Officer Pf annenstiel ordered him to stop and that A.L. also refused to follow the officer's simple in struction that he get on the ground after the two crossed paths. Moreover, the record shows that after Officer Pfannenstiel pushed A.L. to the ground, Officer Pfannenstiel ordered A.L. to roll over onto his stomach. Again, A.L. refused the officer's simp le instruction and instead tensed up and clenched his fists. At that point, the record shows Officer Pf annenstiel understandabl y was concerned the minor might strike him. In respon se, Officer Pfannens tiel punched A.L. once in the stomach as a "distraction blow" in order to se cure A.L.'s compliance, but A.L. continued to refuse to comply with the officer's inst ructions. Nevertheless, Officer Pfannenstiel then was able to roll A.L. ov er and handcuff him. Under the circumstances, we conclude9 substantial evidence also supports the finding that Officer Pfannenstiel's single "distraction blow" to A.L.'s stomach was reas onable and not excessive force. As such, we reject A.L.'s contention that the true fi nding in count 1 for viol ation of section 148, subdivision (a) was not suppor ted by substantial evidence. II Motion to Suppress A.L. next contends the juvenile court erred when it denied his motion to suppress evidence pursuant to Welfare and Institutions Code section 700.1 because the arresting officer lacked an arrest warrant. 2
A. Background Bernal Lund was the assistant pastor at the Canyon Ridge Baptist Church (church) located in Linda Vista. On or about January 6, 2012, while checking church property, he discovered what turned out to be gang graffiti on a concrete storm drain on the property. Lund reported the incide nt to San Diego police. San Diego Police Officer Joel Hoolihan tes tified at the suppression hearing that he responded to a vandalism call at the church. After taking pi ctures and making a report of the vandalism, Officer Hoolihan contacte d San Diego Police Detective William Miles because in the past the church had worked with Detective Miles in other incidents of vandalism on the property.

2 We reach the merits of this issue despite the fact A.L. did not raise this specific ground in his motion to suppress. (See People v. Williams (1999) 20 Cal.4th 119, 128- 131 [specific ground for supp ressing evidence must be li tigated in trial court].)10 Detective Miles testified that he was assi gned to the graffiti st rike task force and that he was responsible for all graffiti-related incidents in Linda Vista. He investigated the incident at the church, including review ing the photographs and Officer Hoolihan's report, and was able to make out a "gang set and monikers" for those responsible. Specifically, Detective Miles determined the gang responsible was the "Linda Vista 13 Tiny Locos." Under the "gang set," Detectiv e Miles identified two monikers, "Alex Boy" and "Conejo1," followed by the letters "C.K." Based on his training and experience, Detective Miles opined that "C .K." meant "Crip Killer." Detective Miles testified he spoke to ot her gang experts in the police department familiar with the Linda Vista area, conducted computer search es of these monikers in a database and identified A.L. as the name a ssociated with the "Alex Boy" moniker. Detective Miles along with other San Diego police officers then went to A.L.'s residence. A.L. was not present, but Detective Miles s poke to A.L.'s mother and younger sister. A.L.'s younger sister confirmed that A. L. went by the moniker "Alex Boy." A.L.'s mother subsequently contacted De tective Miles and he, along with another officer, met A.L. and A.L.'s mother and father at a street corner near the family residence. Detective Miles determined A.L. smelled of alcohol, but A.L. de nied he had been drinking. Because A.L. was uncooperative and because they were located on a street corner, Detective Miles placed A.L. under ar rest for the vandalis m to the church. The juvenile court, after hearing testim ony and argument from counsel, denied the motion to suppress, ruling as follows:11 "Based on the eviden ce adduced during this hearing and having considered the papers of both parties, the c ourt finds that there was probable cause to arrest the minor. [¶] The court is considering the totality of the circumstances and looking at it from the point of view of a reasonable officer using ordi nary care and prudence and finds that such an officer would entertain an honest and strong suspicion that a crime had been committed, specifically, that the vandalism had been committed, and the defendant or the minor was the one who had done that. "Based on the information he had from his database and the field interview of the minor, who admitted to being Al ex Boy, which was the graff iti which was on the church property, the sister's comment that the minor had written do wn that moniker, 'Alex Boy,' the detective's training and experience in working on graffiti and gang cases and interviewing . . . people involved in graffiti and gang activity, and also this conservation with [another gang expert], who also gave his opinions about the meaning of the graffiti and connecting Alex Boy to Linda Vista 13. [¶ ] Based on all of thos e factors, the court finds there was probable cause. Therefore, the motion is denied." B. Governing Law and Analysis "The standard of review of a trial cour t's ruling on a motion to suppress is well established and is equally applicable to juve nile court proceedings. '"On appeal from the denial of a suppression motion, the court revi ews the evidence in a light favorable to the trial court's ruling. [Citation.] We must uph old those express or implied findings of fact by the trial court that are supported by subs tantial evidence and in dependently determine12 whether the facts support the court's legal conclusions." [Citation.]'" ( In re Lennies H. (2005) 126 Cal.App. 4th 1232, 1236.) As relevant here, under section 836, subd ivision (a), a police officer may arrest a person without a warrant when "(2) [t]he person arrested has committed a felony, although not in the officer's pr esence" or "(3) [t]he officer has probable cause to believe that the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed." Probable cause to arrest "is measured by an objective standard based on the information known to the arresting offi cer, rather than a subj ective standard that would take into account the a rresting officer's actual moti vations and beliefs. . . ." ( Gillan v. City of San Marino (2007) 147 Cal.App. 4th 1033, 1045.) Here, A.L. wisely does not argue that De tective Miles lacked probable cause to believe that A.L. was responsible (at leas t in part) for the vandalism on the church property, inasmuch as the record contains ample evidence to su pport that finding. Instead, A.L. contends his conduct in vanda lizing that property was not a felony because under section 594, subdivision (b)(1), vandalism that causes $400 or more in damage is chargeable as a felony. Acco rding to A.L., because the assistant pastor of the church testified at the suppression hearing that the c hurch spent $150 to pa int over the graffiti, A.L's conduct could only ha ve been charged as a misd emeanor. We reject this contention. First, that the church spent $150 after the fact to repair the vandalism is not relevant to the issue of whether an arresti ng officer like Detective Miles had reasonable13 cause at the time of arrest to arrest A.L. for the vandalism. (See Gillan v. City of San Marino , supra , 147 Cal.App.4th at p. 1045.) Second, under section 594.3, subdivision (a), it is a felony to vandalize a "church, synagogue, temple, building owne d and occupied by a religious educational institution, or other place primarily used as a place of wors hip where religious services are regularly conducted . . . ." For this separate reason, we find A.L.'s contention unavailing. Finally, under section 186.22, subdivisio n (d), any misdemeanor offense may be charged as a felony when, as he re, it is committed for the benef it of, at the direction of, or in association with, any criminal street gang, with the specific intent to promote, further or assist in any criminal c onduct by gang members. The re cord shows A.L. was properly charged for, and ultimately the juvenile co urt made a true finding of, felony vandalism under this statute. We thus independently conclude the reco rd supports the finding of the trial court that Detective Miles had probable ca use to arrest A.L. without first obtaining a warrant. (See In re Lennies H. , supra , 126 Cal.App.4th at p. 1236.) DISPOSITION The juvenile court's order declaring A. L. a ward of the court is affirmed.

BENKE, J. WE CONCUR: McCONNELL, P. J. HALLER, J.