In re Brandon B.

Filed 9/27/06 In re Brandon B. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Gibson W. Lee, Judge. Affirmed and remanded with directions.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jaime L. Fuster and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

________________

Brandon B., a minor, appeals from the order of wardship (Welf. & Inst. Code, § 602) entered following determinations that he committed count 1 - resisting an executive officer (Pen. Code, § 69) and two counts of resisting, delaying, or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1); counts 3 and 4). The court ordered appellant placed home on probation.

In this case, we conclude there was sufficient evidence as to counts 1 and 3 that appellant knew or reasonably should have known that he was dealing with a peace officer performing his duty to arrest appellant. Appellant participated in a police athletic league which promoted relationships between police and youth. A police officer, assigned to the program’s facility, held appellant in an attempt to arrest him for trespass after he refused to comply with safety rules and refused to leave. Appellant pulled away and swung at the officer. When the officer later tried to arrest appellant for assault and trespass, appellant repeatedly swung at him and, still later, violently resisted the officer as he held appellant. Appellant continued struggling as a second officer, whom appellant knew was an officer, assisted the first. Based on the record, we conclude there was sufficient evidence supporting appellant’s convictions on counts 1 and 3 (in which the first officer was the victim) including sufficient evidence that appellant knew or reasonably should have known that he was dealing with a peace officer performing his duty to arrest appellant.

We conclude Penal Code section 654 did not prohibit multiple punishment on counts 1 and 3. Appellant violated Penal Code section 148 (count 3) to prevent the first officer from arresting appellant for trespass, but violated Penal Code section 69 (count 1) to prevent the officer from arresting appellant for trespass and assault. Moreover, after the second officer assisted the first, appellant further violated Penal Code section 69 (count 1) to prevent both officers from arresting appellant for trespass and assault. Since appellant did not have the same criminal objective when committing counts 1 and 3, multiple punishment therefor was proper.

Finally, we conclude the trial court did not abuse its discretion to the extent, if any, the court did not disclose information from the first officer’s personnel files pursuant to appellant’s Pitchess motion.

FACTUAL SUMMARY

1. People’s Evidence.

Viewed in accordance with the usual rules on appeal (In re Dennis B. (1976) 18 Cal.3d 687, 697), the evidence established that on March 28, 2005, Long Beach Police Officer Tai Do (Tai) testified he was assigned to the Long Beach Police Athletic League, also known as “P.A.L.” (PAL). As part of the duties of his assignment, he was financial officer and program coordinator, he handled facility maintenance, and he did “a little bit of everything.”

PAL was a nonprofit section of the Long Beach Police Department, and operated after-school programs for children between the ages of 7 and 17. The City of Long Beach provided the facility and staff salary, but staff raised funds to operate the facility and programs. The facility was located in Long Beach. Volunteers who were not police officers occasionally worked at PAL. Civilian volunteers, and parks and recreation employees, occasionally were present at PAL.

When Tai worked at the PAL facility, he generally wore a PAL uniform consisting of a T-shirt and shorts. Tai testified during direct examination that the uniform was not marked to show he was a police officer. There were emblems on the uniform, and there was a PAL emblem. The word “staff” was on the right upper portion of the T-shirt. Tai later testified that the words “Long Beach P.A.L.” and “staff” were on the upper-right chest portion of the PAL T-shirt. When wearing his PAL uniform, Tai did not wear his patrol gun belt and did not have that with him. Tai wore his regular belt.

Tai knew appellant, although he had never addressed Tai by name. Appellant had been a PAL member from January 2004 until April 14, 2004. Tai had had problems with appellant before April 14, 2004. From the beginning of the three-month period during which appellant had been coming to PAL, appellant seemed not to follow PAL rules. When appellant came to PAL, he was always wearing his earrings. For safety reasons, PAL prohibited members from wearing earrings in its facility. Tai testified that “We have talked to him” and Tai personally had to remind appellant several times to remove his earrings. Tai testified that by the term “we,” he meant Tai, Long Beach Police Detective Jacqueline Bezart, “and several staff members, civilians, as well as police officers at the P.A.L.” Tai and other PAL officers consistently enforced the prohibition.

About 5:00 p.m. on April 14, 2004, Tai was patrolling the facility when he saw appellant playing basketball on the basketball court. Appellant was wearing an earring on his left ear and two earrings on his right ear. Tai approached appellant and quietly told him to do Tai a favor and take off appellant’s earrings. Appellant stared coldly at Tai, slowly walked away towards the north side of the basketball court, and said nothing. Appellant did not take off the earrings. Tai followed appellant and saw him pick up a T-shirt from the ground. Appellant turned and asked Tai why he was following appellant. Tai replied he wanted to make sure appellant removed his earrings. Appellant became a little agitated and said Tai was “mad-dogging” and harassing appellant. While appellant was talking with Tai, appellant was reaching into his shirt pockets.

Tai indicated that if appellant did not want to remove his earrings he could leave. Appellant replied okay and that he was leaving. However, appellant did not leave but instead continued reaching into his shirt pockets and telling Tai that he was harassing appellant. Children gathered around appellant and Tai, and appellant said he was not leaving. Appellant had not taken off the earrings. Tai told appellant he was going to be suspended, and appellant replied he was not leaving. Tai said if appellant did not leave, Tai would have to make him leave. Appellant replied, “‘I’m not leaving, you punk ass.’” Tai told appellant that his membership was suspended and he was going to be arrested for trespass. Appellant began screaming at Tai.

Tai, his hands outstretched, moved towards appellant in an attempt to arrest him for trespassing. Tai told appellant that he was under arrest for trespassing. Tai held appellant’s left arm in an effort to arrest appellant. Appellant pulled his left arm away from Tai, and appellant, using his right fist, swung at Tai’s face. Tai stepped back and was not hit. Appellant started backing away and Tai followed appellant to arrest him for assault and trespass. At that point, appellant unsuccessfully tried to punch Tai’s face several times.

Tai put his hands in appellant’s face as a distraction, and appellant put up appellant’s hands to protect his face. Tai held appellant’s left wrist in Tai’s left hand, held appellant’s elbow with Tai’s right hand, and unsuccessfully tried to take appellant to the ground. Tai was unsuccessful because appellant began violently resisting, stiffening his left arm and moving his body from side to side.

Bezart approached to assist Tai. Bezart approached appellant from behind, put her right hand on appellant’s shoulder, and pulled him down. Appellant was still struggling but fell. When appellant was on the ground, Tai was on his knees trying to place a control hold on appellant’s left arm. Several staff members came but did not directly assist Tai.

Bezart testified as follows. At the time of Bezart’s March 28, 2005 testimony, she still volunteered at the PAL facility, but she was not currently assigned there. Bezart was assigned there in April 2004. During the three months that appellant had been going to PAL, Bezart had been working there and appellant had talked to her before. Appellant always had referred to Bezart as “‘Little Miss Jackie’” or “‘Officer Jackie.’”

On April 14, 2004, Bezart was doing a perimeter check when she saw Tai and appellant. The two were standing as if they were going to fight, and Bezart ran towards them. Appellant “sw[u]ng on” Tai. Tai pushed his hands towards appellant’s face as a distracting tactic. Bezart ran towards the location and saw appellant swing at Tai.

As Bezart approached, she yelled at appellant to back off. Bezart did not tell appellant that Bezart was a police officer. Appellant did not verbally respond or back off. Bezart grabbed appellant in the neck and shoulder area. Bezart did not then tell appellant that Bezart was a police officer and did not tell appellant that he was under arrest. As Bezart and appellant fell, appellant grabbed Bezart’s shirt. Bezart and appellant hit the ground.

When Bezart and appellant hit the ground, appellant was still holding the front of Bezart’s shirt and was upset. Bezart tried to tell appellant to calm down but appellant, upset, continued to struggle. Tai was trying to get one of appellant’s arms off of Bezart’s shirt. Bezart testified that after several seconds “we” were able to roll appellant on his stomach and get his hands behind his back.

Once Bezart subdued appellant, Bezart ran to the office to get handcuffs. Before Bezart returned, a sergeant assisted Tai, appellant was handcuffed, and they were walking towards the office. Appellant continued to struggle until he was turned face down and handcuffed. Bezart did not know how long it took for her to control appellant, because there were many people present and everyone was yelling. Bezart was not the only person trying to control appellant. Appellant never complied with the directions of Bezart or Tai from the time Bezart told appellant to back off to the time he was handcuffed. After the incident, appellant referred to Tai as the Asian “officer.”

2. Defense Evidence.

In defense, Stephanie Lewis testified she was playing at PAL and saw appellant and Tai arguing about the earrings. Tai pushed appellant, then appellant swung at Tai and missed. A struggle ensued and two staff members separated appellant and Tai. Jessica Hall testified Tai pushed appellant, appellant hit Tai back, and they started fighting. Staff and other officers ran to the location to break up the fight. Appellant did not move after officers pinned him to the ground. Bezart arrived last and tackled appellant.

Appellant testified as follows. Appellant denied knowing Tai’s name or whether he was an officer, janitor, or counselor. Appellant just knew Tai sat behind a desk some days and walked around on other days. Appellant testified he had never seen Tai before, but appellant also testified that he knew Tai did not like him. Appellant testified he had never talked to Tai before, but Tai saw appellant when appellant “first signed in at the P.A.L.” Ever since then, Tai indicated by facial expressions that he did not like appellant.

During appellant’s argument with Tai, Tai ran toward appellant with Tai’s hands in appellant’s face. Appellant thought Tai was going to hit appellant, so appellant swung at Tai. Tai swung back and the two fought. Tai did not tell appellant that he was under arrest or that Tai was a police officer. Appellant testified “officer Jackie” ran to them and broke up the fight.

Appellant stopped fighting after Bezart came up behind appellant. Tai was still swinging at appellant even after Bezart arrived to intervene. Appellant did not tell this to Bezart that day because he did not know until later that he was charged with resisting arrest. Appellant was not struggling when they were trying to handcuff him. Appellant denied at trial that he had been angry with Tai. However, appellant acknowledged he had told Bezart that appellant told Tai, “‘Why are you always in my face with your punk ass’?” Tai did not tell appellant that he was under arrest for trespassing until after Tai handcuffed appellant and put him in the office. It was then that appellant first learned that Tai was a police officer.

CONTENTIONS

Appellant contends (1) there was insufficient evidence as to counts 1 and 3, and (2) Penal Code section 654 barred multiple punishment on counts 1 and 3. Appellant also requests this court to review the in camera hearing conducted by the trial court pursuant to his Pitchess motion.

DISCUSSION

1. Sufficient Evidence Supported Appellant’s Convictions on Counts 1 and 3.

Appellant claims there is insufficient evidence that he committed counts 1 and 3. In support, he argues there was insufficient evidence that appellant knew or reasonably should have known that (1) as to count 1, Tai was an executive officer engaged in the performance of his duties, and (2) as to count 3, Tai was a police officer engaged in the performance of his duties.

Penal Code section 69, states in relevant part, “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable . . . .”

“‘In order to prove [a violation of Penal Code section 69], each of the following elements must be proved: ‘[1. A person willfully [and unlawfully] attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and ‘2. The attempt was accomplished by means of any threat or violence.] ‘[1. A person knowingly [and unlawfully] resisted an executive officer in the performance of his or her duty; and ‘2. The resistance was accomplished by means of force or violence.]’ (CALJIC No. 7.50 (6th ed. 1996).)” (People v. Belmares (2003) 106 Cal.App.4th 19, 24.)[1]

Penal Code section 148, subdivision (a)(1), in relevant part, punishes “[e]very person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment. . . .” “‘The legal elements of a violation of section 148, subdivision (a) 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. [Citations.]’ [Citation.]” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329, italics added.)

There is no dispute that, for purposes of Penal Code section 69 (count 1), appellant “attempt[ed], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law” when appellant first swung at Tai (cf. People v. Patino (1979) 95 Cal.App.3d 11, 17-18, 26-28) as Tai was performing the duty of arresting appellant, except to the extent appellant claims there was insufficient evidence that appellant knew or reasonably should have known that Tai was an executive officer engaged in the performance of said duty. Nor is there any dispute that, for purposes of section 69, appellant “resist[ed], by the use of force or violence, such officer, in the performance of his duty,” when appellant violently resisted Tai by stiffening appellant’s left arm and moving side to side as Tai was performing said duty, except to the extent appellant claims there was insufficient evidence that appellant knew or reasonably should have known that Tai was an executive officer engaged in the performance of said duty.

Similarly, there is no dispute that for purposes of Penal Code section 148, subdivision (a)(1) (count 3), appellant resisted, delayed, and obstructed a peace officer in the discharge or attempted discharge of a duty of his office at least as of the point that appellant pulled his left arm away from Tai as Tai was performing the duty of arresting appellant, except to the extent appellant claims there was insufficient evidence that appellant knew or reasonably should have known that Tai was a police officer engaged in the performance of said duty.

Viewing the evidence and the reasonable inferences therefrom (In re Dennis B., supra, 18 Cal.3d 687; In re Jerry M. (1997) 59 Cal.App.4th 289, 298), we conclude there was substantial evidence from the People’s case-in-chief as follows. The Police Athletic League was an outreach program of the City of Long Beach and Long Beach Police Department. The program utilized sports activities to promote interaction and friendly relationships (hence the acronym PAL) between Long Beach police officers and youth. Such an outreach program would identify participants who were officers, and a child participating in the program could expect to interact with officers during athletic activities conducted there. Tai was assigned, in his capacity as a police officer, to PAL and did “a little bit of everything” as part of his assigned duties. There was no evidence that his other responsibilities required him to abandon his responsibilities as a police officer; again, PAL sought to foster friendly relations between officers and youth.

Appellant was no newcomer who simply walked in off the street and started playing basketball on April 14, 2004. He formally had signed up for PAL in January and, having participated in the program until April 14, 2004, was familiar with the program’s goal of promoting relations between officers and youth. Tai was present when appellant signed up. Appellant always had referred to Bezart as “‘Little Miss Jackie’” or “‘Officer Jackie,’” indicating appellant had had an opportunity to familiarize himself with at least one officer at PAL.

When Tai worked at PAL, he generally wore a PAL uniform consisting of a

T-shirt and shorts. Tai did testify that the uniform did not show he was a police officer. However, the uniform did bear a PAL emblem, which stood for Police Athletic League. The T-shirt bore in plain view the words “Long Beach P.A.L.,” a reference to the city’s police league, and the word “staff.” There was evidence that persons who were not police officers occasionally worked at PAL, civilian volunteers occasionally were present, and there were staff members other than police officers. However, no one testified that persons who were not police officers wore the uniform.[2] It is not hard to understand why an officer seeking to promote good relationships with children from ages 7 to 17 would not wear a gun belt.

Tai testified he had had previous contacts with appellant when Tai enforced PAL rules which appellant repeatedly broke. Tai also testified that he and other PAL officers consistently enforced the prohibition against children wearing earrings in the facility, and Tai enforced that prohibition on April 14, 2004. Tai, a police officer at the Police Athletic League, told appellant that Tai was going to arrest appellant. The conducting of arrests is a task normally associated with police officers.

The above events occurred before appellant first pulled his left arm away from Tai. However, subsequent events, particularly those occurring when Bezart became involved, provide additional circumstantial evidence of appellant’s state of mind.

When Bezart approached, she yelled at appellant to back off. There was no evidence Bezart yelled at Tai. It should have been obvious to appellant that Bezart was treating Tai and appellant differently. She was treating Tai as a person who could continue without interference from Bezart, and as a person whom appellant should not assault. Before Bezart arrived, Tai told appellant that Tai was arresting appellant, and Tai was in the process of arresting him when Bezart arrived. After Bezart arrived, she took appellant to the ground. Bezart and Tai then began working together, struggling with appellant to arrest him.

Moreover, there is no dispute that appellant violated Penal Code section 148, subdivision (a) as to Bezart (count 4), and therefore knew or reasonably should have known that Bezart was a police officer engaged in the performance of her duty to arrest appellant. If appellant was struggling with Tai because appellant did not know, and should not have known, that Tai was a police officer performing his duty, appellant might have been expected not to have struggled with Bezart, whom appellant knew or reasonably should have known was a police officer performing her duty. The fact that appellant struggled with Bezart, when appellant knew or reasonably should have known she was performing her duty, was other crimes evidence of appellant’s mental state and the absence of mistake as to Tai, namely, that appellant knew or reasonably should have known that Tai was performing his duty as an officer to arrest appellant. Finally, there is no evidence that, from the time Tai began to arrest appellant, to the time appellant was handcuffed, Tai ever indicated he was performing a citizen’s arrest, or appellant ever indicated he did not know Tai was a police officer performing his duty.

We conclude there was sufficient evidence that appellant committed the offenses at issue in counts 1 and 3, including sufficient evidence that appellant knew or reasonably should have known that Tai was an executive officer (count 1) and peace officer (count 3) in the performance of his duty.

2. Multiple Punishment on Counts 1 and 3 Was Proper.

We reject appellant’s claim that multiple punishment on counts 1 and 3 violated Penal Code section 654. When appellant first pulled his left arm away from Tai, appellant was violating Penal Code section 148, subdivision (a)(1) as to Tai (count 3), with the criminal objective of preventing Tai from arresting appellant for trespass.

However, when appellant later and unsuccessfully tried to punch Tai several times, appellant violated Penal Code section 69 as to Tai (count 1) (cf. People v. Patino, supra, 95 Cal.App.3d at pp. 17-18, 26-28) with the criminal objectives of preventing Tai from arresting appellant for trespass and assault. Moreover, after Bezart began assisting Tai, appellant violated Penal Code section 69 as to Tai (count 1) with the criminal objectives of preventing Tai and Bezart from arresting appellant for trespass and assault.

The purpose of Penal Code section 654, is to insure that a defendant’s punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.) Multiple punishment on counts 1 and 3 did not violate section 654, since appellant did not have the same criminal objectives when committing those offenses. (Cf. People v. Perez (1979) 23 Cal.3d 545, 551.)

3. The Court Did Not Abuse Its Discretion by Not Disclosing Information from an Officer’s Personnel Files Pursuant to Appellant’s Pitchess Motion.

a. Pertinent Facts.

Appellant, prior to the adjudication, filed a discovery motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (hereafter Pitchess motion), seeking various information in Tai’s personnel files at Long Beach Police Department. The trial court granted the motion to the extent appellant sought complaints with respect to excessive force, false reports, and fabrication. Following an October 27, 2004 in camera hearing on the motion, the court ordered that certain information from Tai’s files be disclosed to appellant.

On June 28, 2006, this court granted appellant’s motion to augment the record with the reporter’s transcript of the October 27, 2004 in camera proceedings on the Pitchess motion, plus any pertinent open court hearings that preceded or followed the in camera hearing. On July 31, 2006, the augmented record was filed with this court. It consists of a one-volume reporter’s transcript of proceedings on October 27, 2004. The one-volume reporter’s transcript reflects proceedings that occurred in open court, as well as during the in camera hearing on the Pitchess motion.

b. Analysis.

Trial courts are granted wide discretion when ruling on motions to discover police officer personnel records. (People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Memro (1995) 11 Cal.4th 786, 832.) We have reviewed the transcript of the in camera hearing. That transcript constitutes an adequate record of the trial court’s review of any document(s) provided to the trial court, and that transcript fails to demonstrate that the trial court abused its discretion to the extent, if any, the court did not disclose information from Tai’s personnel files. (Cf. People v. Samayoa, supra, at p. 827; see People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, 1232.)

The reporter’s transcript of an in camera hearing on a Pitchess motion must be sealed. (People v. Mooc, supra, 26 Cal. 4th at pp. 1229-1230.) We will remand the matter to permit the trial court to order sealed that portion of the reporter’s transcript of the October 27, 2004 proceedings that reflects the proceedings during the in camera hearing on appellant’s Pitchess motion.

DISPOSITION

The judgment is affirmed. The matter is remanded and the trial court is directed to order sealed that portion of the reporter’s transcript of the October 27, 2004 proceedings that reflects the proceedings during the in camera hearing on appellant’s Pitchess motion.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

KITCHING, J.

We concur:

KLEIN, P. J.

ALDRICH, J.

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[1] We assume without deciding that Penal Code section 69 requires that a defendant know or should know that the executive officer was engaged in the performance of the officer’s duties.

[2] At one point during trial appellant argued Tai was not wearing a badge. No one testified at trial that Tai was not wearing a badge.