P. v. Baker

Filed 4/30/07 P. v. Baker CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Thomas C. Falls, Judge. Affirmed.

Vanessa Place, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez, and Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________________

INTRODUCTION

Appellant David Joseph Baker challenges the trial courts reinstatement of the judgment convicting him of evading an officer, assault on a peace officer, resisting an executive officer, possession of methamphetamine, and various sex offender registration requirements following a remand for further proceedings in relation to his Pitchess^[1]discovery motions. Appellant contends the court erred by concluding he was not prejudiced by the prior non-disclosure of a complaint against a police officer who tasered him. We conclude the trial court did not err, as the evidence appellant developed upon remand was inadmissible.

BACKGROUND AND PROCEDURAL HISTORY

Claremont Police Department Officer Jason Walters noticed appellant riding a motorcycle with an expired registration sticker. When he attempted to stop appellant, appellant led the officer on a high-speed freeway chase. Walters lost appellant. Later that day, officers went to appellants workplace, and he led them on another high-speed chase, this time in his car. The next day, officers driving unmarked cars followed appellants car, and then blocked it with their vehicles. Appellant fled on foot, but three officers caught up with him nearby and pulled him down as he attempted to scale a wrought iron fence or gate. He refused to release his grip on a fence, despite numerous blows by the officers and a chokehold employed by an officer clinging to appellants back. Appellant pulled down the gate, and maintained his grip upon it as he lay atop it on the ground. The officers continued to strike appellant and twice sprayed him with pepper spray. Other officers who arrived as backup twice shocked appellant with their tasers before he complied with them and permitted them to handcuff him. At the hospital, an officer recovered a plastic bag containing methamphetamine from appellants shirt pocket.

A jury convicted appellant of two counts of evading an officer, three counts of assault on peace officer as a lesser offense included in the charged offense of battery on a peace officer, three counts of resisting an executive officer, possession of methamphetamine, failing to register as a sex offender, failing to annually update his sex offender registration, and failing to file a sex offender change of address notification. Appellant admitted he had previously suffered 10 prior violent felony convictions within the scope of the Three Strikes law. The court found true an allegation appellant had served a prior prison term within the scope of Penal Code section 667.5, subdivision (b). The court granted appellants motion to vacate the prior conviction findings with respect to 6 of the 12 counts. Appellant was sentenced to prison for 75 years to life.

Appellant appealed, raising Pitchess and Brady^[2]issues. We found appellant had not established a Brady claim, but concluded the trial court erred by denying his Pitchess motion with respect to certain officers and certain claims. We reversed and remanded for the trial court to conduct an in camera review of specified officers personnel files for particular types of claims. We instructed the court to disclose to appellant any discoverable information within the designated categories and give him an opportunity to demonstrate prejudice in accordance with the standard and procedures set forth in People v. Hustead (1999) 74 Cal.App.4th 410, 423.

Upon remand, the trial court reviewed the specified officers files in camera. Only Officer M. Osmundsons file contained any discoverable material. The court disclosed that complaint from the file to appellant and later conducted an evidentiary hearing at which appellant presented the evidence developed from the disclosed complaint. The court concluded appellant was not prejudiced by the prior error in failing to grant the Pitchess motion. It therefore reinstated the prior judgment.

DISCUSSION

The complaint disclosed to appellant upon remand alleged that Osmundson used excessive force while handcuffing Virginia Alvarez in 2002. At the evidentiary hearing conducted in this case, Alvarez testified Osmundson was one of the officers who arrested her on May 29, 2002 following a domestic dispute with her husband. When they were handcuffing her behind her back, they turned her hands back and pulled hard on her arms. She heard something crack in her hand. She did not resist the officers, but they became upset anyway. When she arrived at the jail, she told someone her wrist had been injured, and she was taken to a hospital, where a cast was placed on her hand. The prosecutor and defense counsel stipulated that Alvarezs fractured wrist could have occurred from her husband throwing her against the car or grabbing her by the wrists or from the action of officers putting on the handcuffs. They further stipulated that Osmundson and Officer S. Perez placed Alvarez under arrest.^[3]

The trial court held that the issue of excessive force was potentially relevant only to the convictions of assault and resisting an executive officer, and there was therefore no prejudice with respect to the remaining counts. The court noted it had a very hard time with [Alvarezs] credibility and found that no unnecessary force was used in handcuffing her. It therefore concluded appellant suffered no prejudice from the non-disclosure of the Alvarez complaint. Accordingly, the court denied a new trial and reinstated the judgment.

Appellant contends the court applied the wrong standards of analysis and reached the wrong conclusion regarding the prejudicial effect of the failure to disclose the Alvarez complaint prior to trial.

As a preliminary matter, because the courts task upon remand was to assess the potential effect upon the outcome of the trial of any evidence developed from complaints that should have been disclosed prior to trial, the judge who conducted the trial should have handled the matter upon remand. Instead, it was handled by the judge who originally ruled upon the Pitchess motion. Nothing in the record indicates the judge read the trial transcripts to familiarize himself with the evidence produced at trial. Under the circumstances, the trial court did not conduct the analysis mandated by our disposition in appellants prior appeal. No matter how skilled, diligent and well-meaning, it would be impossible for a judge who was unfamiliar with the evidence produced at appellants trial to assess the potential effect of the new evidence upon the outcome of the trial. Nonetheless, appellant did not seek extraordinary writ relief and does not challenge this point on appeal.

Appellant is correct that the trial court pursued an erroneous form of analysis by making a finding on whether excessive force was used on Alvarez. Her testimony arguably would have permitted a jury to find that Osmundson used excessive force upon her. The trial courts task upon remand was to evaluate the effect of Alvarezs testimony upon the trial, not to make a finding whether excessive force was actually used upon her.

Despite these fundamental errors in the process, we conclude appellant did not meet his burden of showing prejudice. The determinative issue is admissibility. Appellant argues the evidence was admissible because both he and Alvarez claimed Osmundson used excessive force on them, Osmundson was one of the many officers involved in a physical melee with appellant, and the whole of appellants case was a credibility contest involving all officers. However, appellant has not articulated a theory of admissibility with respect to the rules of evidence.

Alvarezs testimony constituted evidence of a specific instance of alleged misconduct by Osmundson. Appellants express purpose in seeking to introduce this evidence was to prove that Osmundson used excessive force on him during his capture. Accordingly, Evidence Code section 1101, subdivision (a) bars admission of the Alvarez testimony. Appellant has not suggested that the testimony was admissible under Evidence Code section 1101, subdivision (b) to prove some fact other than Osmundsons predisposition to use excessive force, and no such fact occurs to this court. Given the substantial differences between the misconduct about which Alvarez testified and Osmundsons act of firing a taser at appellant in this case, the prior incident is not relevant to show absence of accident, common plan, scheme or design. Nor does the prior incident appear to show intent. Evidence Code section 1103, subdivision (a) is inapplicable because Osmundson was not a victim of appellants alleged crimes of assault on an officer or resisting an executive officer. Those charges and convictions pertained to Officers Karlan Bennett, Eric Huizar and Kenneth Franklin, and the record does not indicate that Osmundson could have been named as a victim of any conduct by appellant.

Neither Osmundson nor any of the other officers who responded as backup testified at appellants trial. Osmundson was therefore not subject to impeachment. Arguably, appellant might have called Osmundson as a witness and sought to impeach him with the Alvarez incident on the theory that it involved moral turpitude and was admissible under Peoplev.Wheeler (1992) 4 Cal.4th 284, 295-296. However, the Alvarez incident would then be admitted for the limited purpose of undermining Osmundsons credibility, and could not be used to prove he used excessive force against Alvarez or appellant. Accordingly, admission in this context would not serve appellants goal. It is inherently speculative to contemplate the effect that evidence diminishing Osmundsons credibility might have had on appellants trial, as there is no evidence of what Osmundson might have said in his testimony.

Assuming, for the sake of argument, that the Alvarez evidence were somehow deemed admissible to show Osmundsons character trait for the use of excessive force, it is not reasonably probable appellant would have obtained a more favorable result at trial. (People v. Hustead, supra, 74 Cal.App.4th at pp. 419, 422-423.)

The evading counts (one and two) were based upon two incidents that occurred the day before the melee. They were supported by the testimony of Claremont Police Department Officers Jason Walters and Chris Fenner. Nothing indicates Osmundson had anything to do with either incident. The possession of methamphetamine conviction (count 9) was based upon the testimony of Claremont Police Department Officer Jason Newman, who went to the hospital with appellant and found a baggie containing methamphetamine in appellants right front shirt pocket. Nothing indicates Osmundson had anything to do with the investigation at that point or that he was at the hospital. Appellants failures to comply with the sex offender registration requirements were complete before even the first evading crimes occurred. There is no reasonable probability that the verdict on any of these counts would have been more favorable to appellant if he had been able to introduce evidence of Osmundsons purported predisposition to use excessive force. There is simply no logical or factual connection between the offenses and the use of excessive force.

The assault and resisting an executive officer convictions (counts 3 through 8) were based upon appellants conduct with respect to Claremont Police Department Detectives Huizar and Bennett and Officer Franklin, who chased appellant on foot and caught him at a metal fence or gate. All three officers tugged on appellant to attempt to pull him off the gate, and the gate broke. Appellant was left in a kneeling position on top of the gate, and he refused to relinquish his hand hold on it. Over the course of about five minutes, the three officers beat him with fists, a flashlight, and a baton, as they attempted to pull his arms behind his back to handcuff him. They also sprayed him with pepper spray twice and Bennett grabbed hi[s] groin area in an attempt to gain pain compliance from him. Appellant continued to hold onto the gate, and 10 or more other officers arrived to assist Huizar, Bennett and Franklin. Huizar, Bennett and Franklin were exhausted, and let the other officers take over. An officer from the Pomona Police Department tasered appellant, but he continued to struggle. Someone tasered appellant a second time. Franklin thought a Claremont officer might have administered the second taser shot.

Appellant testified that he did not know the people following him were police officers. He was walking to a friends house to call the police when he saw a man with a gun. He ran and thought he lost his pursuer. He was in front of a wrought-iron fence when he first saw police cars. He heard someone say stop, but did not hear police. He stopped and put his hands up. Someone tackled him from behind and threw him against the fence. He grabbed the top of the fence, and three people began punching and hitting him. They never said they were police officers. When they attempted to pull him off the fence, the fence fell. One of his arms was caught under the fence, pinned by the top rail. He repeatedly told his attackers that his arm was pinned and yelled at them to get off of his arm. They told him to stop resisting, and he told them he was not resisting, but could not move his arm. They kicked his face and hit his back and head with something that was hard and heavy. The sprayed him with pepper spray and shocked him three times. One time, someone ordered someone else to discharge it and let it run. After they lifted the fence off his arm, they continued to beat his head with flashlights. They broke his right arm in two places, crushed his fingers and damaged all the tendons and nerves in his left hand, fractured his wrist, injured his spine in a way that paralyzed his left leg, and fractured his skull.

Although evidence that Osmundson was predisposed to use excessive force may have had some relevance to the complete story of appellants capture, the three assaults and three resisting counts were based upon appellants conduct with respect to Huizar, Bennett and Franklin. The crimes were complete before the backup officers, including Osmundson, arrived. Osmundson was just one of about 10 backup officers who arrived and took over the struggle. Given the timing, the large number of officers involved, and the violent acts against appellant admitted by Huizar, Bennett and Franklin, it is simply not reasonably probable that appellant would have obtained a more favorable result if the Alvarez evidence had been admitted.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BOLAND, J.

We concur:

COOPER, P. J.

RUBIN, J.

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^[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531.

^[2]Brady v. Maryland (1963) 373 U.S. 83.

^[3] The parties also stipulated that Officer Tom-Hoon would testify that when he arrived at the May 29, 2002 incident, he observed Robert Trejo and Virginia Alvarez; that Ms. Alvarez was yelling and screaming . . . at Mr. Trejo; and that Mr. Trejo had blood coming from his nose. The court took judicial notice that Alvarez pled guilty to a violation of Penal Code section 415 in Case No. 2PM04455.