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People v. Mayfield1/2/1997
s's statements to Sergeant Wolfley were specific articulable facts providing an objective manifestation that defendant was involved in the criminal activity of planning to kill Thomas. Although Thomas's uncorroborated statements, particularly in view of his apparent drug intoxication, may not have provided Sergeant Wolfley with probable cause to arrest defendant, they warranted a detention for purposes of investigation.
Given Thomas's statement that defendant had a pistol, Sergeant Wolfley also had reasonable grounds to conduct a patdown search of defendant's person. (See People v. Souza, (supra) , 9 Cal. 4th 224, 229.) To perform the patdown, Sergeant Wolfley acted lawfully in commanding defendant to "freeze" and also to raise his hands. Likewise, Sergeant Wolfley acted reasonably in drawing his gun, and this action did not convert the detention into an arrest. ( United States v. Lechuga (7th Cir. 1991) 925 F.2d 1035, 1040 [stating that officer may draw weapon, without converting a detention to an arrest, when "the suspect is thought to be armed, or even when he is thought to be involved in criminal activity in which the use of weapons is . . . commonplace"]; Alexander v. County of Los Angeles (9th Cir. 1995) 64 F.3d 1315, 1320; United States v. Del Vizo (9th Cir. 1990) 918 F.2d 821, 824.)
B. Jury Instruction
The trial court instructed the jury on the engaged-in-duty element of the peace-officer-murder special circumstance using the language of CALJIC Nos. 8.81.8 and 9.52 (4th ed. 1979). As here relevant, CALJIC No. 8.81.8 stated:
"The phrase 'in the performance of his duties,' as used in these instructions, means:
"Any lawful act or conduct while engaged in the maintenance of the peace and security of the community or in the investigation or prevention of crime.
"The lawful detention of or the lawful attempt to detain a person for questioning or investigation."
As here relevant, CALJIC No. 9.52 stated: "The phrase 'in the performance of his duties,' as used in these instructions, includes the lawful detention of or the lawful attempt to detain a person for questioning or investigation by a peace officer."
The trial court's instructions were given to the jury both orally and in writing. The written instructions, which were available to the jury during deliberations, were as quoted above. The trial court's oral recitation of CALJIC No. 8.81.8 was also exactly as quoted above. When the trial court read CALJIC No. 9.52 to the jury, however, the reporter's transcript indicates that the court stated: "The phrase, in quotation, in the performance of his duties, close quote, as used in these instructions includes the lawful detention of or the unlawful attempt to detain a person for questioning or investigation by a peace officer." (Italics added.)
Finally, the trial court instructed the jury, both orally and in writing, in the language of CALJIC No. 9.58 (1980 rev.): "A peace officer is not engaged in the performance of his duties if he: detains unlawfully or attempts to detain unlawfully a person for questioning or investigation . . . ."
Defendant contends that the trial court erred to his prejudice when it orally instructed the jury that "the unlawful attempt to detain a person for questioning or investigation" was included within the definition of the engaged-in-duty element of the peace-officer-murder special circumstance. We reject the claim.
As this court has explained, "a single instruction is not to be viewed in 'artificial isolation'; instead, it must be evaluated 'in the context of the overall charge.' [Citations.]" ( People v. Espinoza, (supra) , 3 Cal. 4th 806,
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