P. v. Chavez
Filed 9/5/13 P. v. Chavez CA4/2
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opinion has not been certified for publication or ordered published for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.
THE PEOPLE,
Plaintiff
and Respondent,
v.
JOSEPH ANGEL CHAVEZ,
Defendant
and Appellant.
E054719
(Super.Ct.No. RIF10002353)
OPINION
APPEAL from the Superior Court of
County. Robert E. Law, Judge. (Retired judge of the former Orange Mun. Ct.
assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with
directions.
David Andreasen, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General,
Andrew Mestman and Steve Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant Joseph Angel Chavez
guilty of attempting to deter an executive officer from performing his duties
or resisting an executive officer by
force or violence (Pen. Code, § 69),
Code, § 148, subd. (a)(1)), and being under the influence of a controlled
substance (Health & Saf. Code, § 11550, subd. (a)). Defendant admitted suffering a prior strike
conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), and
three prior convictions for which he served prison terms (§ 667.5, subd.
(b)). The trial court sentenced
defendant to prison for a term of five years, eight months.
Defendant raises 15 issues on appeal. First, defendant contends the trial court
erred by denying his motion concerning the State’s failure to gather and
preserve evidence.
title="">[3] Second, defendant asserts the trial court
erred by ruling evidence of a deputy’s prior use of excessive force could be
admitted contingent on defendant testifying.
Third, defendant contends the trial court erred by admitting evidence of
defendant’s prior conviction for
arrest.
Fourth,
defendant asserts the trial court erred by permitting a deputy to testify
regarding his opinion that defendant was attempting a burglary and that
defendant was especially dangerous due his prior prison commitment. Fifth, defendant contends the prosecutor
committed misconduct by attempting to
distract and inflame the jurors by using evidence of defendant’s tattoos as
proof defendant is a violent person.
Sixth, defendant asserts the jury was incorrectly instructed on the resistance
charges because there was not substantial evidence that the initial detention
was lawful.
Seventh, defendant contends the trial court did not
correctly instruct the jury on the law of a proper search and seizure. Eighth, defendant asserts the trial court
erred by incorrectly instructing the jury on a defendant’s right to respond to
excessive force by a peace officer.
Ninth, defendant asserts the trial court erred by giving ex parte
responses to jury questions without notifying counsel. Tenth, defendant contends the trial court
erred by coercing the jury into reaching a verdict. Eleventh, defendant asserts the cumulative
effect of the foregoing 10 alleged errors created a denial of due process.
Twelfth, defendant contends his conviction for resisting
a peace officer (§ 148, subd. (a)(1)) must be vacated because it is a lesser
included offense of resisting an executive officer by force or violence (§
69). Thirteenth, defendant asserts that
if section 148 is not a lesser included offense of section 69, then the
sentence related to his section 148 conviction must be stayed. (§ 654.)
Fourteenth, defendant requests this court conduct an independent review
of the in-camera hearing on defendant’s Pitchess
be disqualified from presiding over this case if it were to be remanded. We affirm in part and reverse in part with
directions.
A. CURRENT CASE
On March 24, 2010, Riverside County Sheriff’s Deputy
Davis (Davis) was dispatched to the unincorporated Rubidoux area of Riverside
County. The dispatch was made in
response to a woman calling law enforcement due to a “gangster-looking†man
carrying a pillowcase, knocking on the woman’s door, asking to borrow an
electrical cord, and claiming to live next door to the woman in a house the
woman knew to be vacant. Davis drove his
black and white patrol car to the Rubidoux neighborhood at approximately 12:30
p.m.
While driving, Davis saw defendant walking down the
street, toward the patrol car, and holding a pillowcase. Davis believed defendant was “probably
burglarizing something.†As defendant
was walking, Davis recognized defendant as an active parolee due to Davis
reviewing the parolee database while on duty.
Davis is more cautious with people who are on parole because he is more
concerned for his safety when dealing with them.
Davis parked his patrol car on the street. Defendant stopped in front of the car. Davis, who was in uniform, spoke to defendant
and, in order to begin the process of patting him down, started placing
defendant’s hands behind his back. As
Davis put defendant’s hands behind his back defendant pulled his arms from
Davis’s grasp, shoved the deputy, and then ran down the street. Davis chased after defendant in his patrol
vehicle and then on foot once defendant ran through a residential
backyard. Defendant tried to jump over
the backyard fence, but he was unable to do so because the plank at the top of
the fence broke or he lost his grip.
Davis was approximately 15 feet away from defendant when
defendant failed in his attempt to jump over the fence. Davis instructed defendant to “‘Get on the
ground. Show me your hands.’†Defendant yelled, “‘Why? Why?’†Defendant did not comply with Davis’s instructions. Davis removed his gun from its holster,
because defendant had not been patted down and he was not complying with
Davis’s instructions. For example,
defendant never moved onto the ground.
Davis was concerned for his safety.
Davis sprayed defendant’s face with pepper spray from a
distance of 10 to 15 feet. Davis’s
partner, Deputy Broda (Broda) arrived at the backyard. Broda grabbed defendant, and Davis also
grabbed defendant. Defendant pulled his
arm away from Davis, and then punched Davis on the left side of his face. Davis tried to hit defendant with a rapid
containment baton, but missed and hit a wall.
Davis swung the baton at defendant a second time and struck defendant’s
arm. Defendant did not react but he
began moving away from the deputies.
Davis continued telling defendant to comply with his orders.
Broda
said, “‘Taser, taser,’†to announce his intention to tase defendant, so Davis
moved away. Broda deployed the taser,
the two taser prongs connected with defendant, but not at the same time. The taser did not appear to have any effect
on defendant. Defendant pulled the taser
prongs off of his clothing. It is unclear
if the taser prongs connected with defendant’s skin. Davis punched defendant three or four times.
Davis and defendant began wrestling on the ground. Defendant pulled Davis’s leg towards
defendant’s face, possibly in an attempt to bite the deputy. Davis struck defendant’s face with an open
hand three or four times, in an attempt to stop defendant from pulling his
leg. Broda removed the prongs from the
taser and “dry stunned†defendant five times by applying the taser directly to
defendant’s skin without the barbs. The
dry stuns did not affect defendant.
Eventually, Davis was able to move one of defendant’s arms behind his
back, while Broda moved defendant’s other arm behind his back. Broda forcefully held defendant’s hands
behind his back, in order to place defendant in handcuffs.
Davis called for paramedics, due to defendant being dry
stunned, tased, and hit. Defendant was
handcuffed to a gurney and taken to a hospital.
Defendant told medical personnel he swallowed a gram of
methamphetamine. While on the gurney,
defendant was sweating, rocking back and forth, speaking rapidly, and his pulse
was “well over 100 beats a minute.â€
Davis believed defendant was under the influence of a stimulant. Defendant’s blood tested positive for
amphetamines. Defendant suffered two
lacerations on his face and two welts on his back.
The prosecutor asserted the charge of resisting an
executive officer from performing his duties by force or violence (§ 69)
concerned defendant’s initial interaction with Davis wherein defendant shoved
Davis prior to running away. The
prosecutor argued the charge of willfully resisting a peace officer, without
force (§ 148, subd. (a)(1)), related to defendant’s act of running away from
Davis. Defendant argued Davis used
excessive force, and therefore was not lawfully performing his duties. Defendant faulted Davis for attempting to
search defendant (1) before confirming defendant was on parole, and (2) without
telling defendant why he was conducting the search. Further, defendant asserted prior testimony
reflected defendant only pushed Davis’s hand away—he did not shove the deputy
in order to run away.
B. PRIOR
CASE
On July 4, 2000, Riverside County Sheriff’s Deputy
Williamson (Williamson) was on patrol, wearing a uniform, and driving a black
and white patrol car. At approximately
11:30 p.m., Williamson saw a car parked along the street with a person lying
down in the passenger seat. As
Williamson approached the car, the car left the parking space at a higher rate
of speed than Williamson would consider to be normal. Defendant was left standing near where the
car had been parked. Williamson spoke to
defendant. Defendant agreed Williamson
could search him.
Williamson placed defendant’s hands behind his back, and
held them with one of his own hands, in order to begin patting down
defendant. Defendant appeared to be
under the influence of a controlled substance; when Williamson asked defendant
his name, defendant responded unintelligibly.
As Williamson began the pat-down, defendant turned, raised an elbow, and
then ran away. Williamson chased after
defendant, but was unable to locate him.
Williamson
and a crime analyst searched several databases to find a match for the tattoos
Williamson saw on defendant’s face and neck.
Williamson identified defendant as the person who ran away from him. Williamson learned defendant was on
parole. Williamson spoke to defendant’s
parole agent, and a parole hold was placed on defendant. A parole hold is similar to an arrest
warrant.
In August 2000, Riverside County Sheriff’s Deputy Albaran
(Albaran) was on patrol, in the Rubidoux area, in a marked patrol car. In the patrol car, Albaran had a copy of
defendant’s wanted flier. At
approximately 8:00 p.m., Albaran saw defendant walking down a street. Albaran stopped his car near defendant and
shined a spotlight on him. Defendant
turned around and ran into an apartment.
Albaran used his radio to request assistance. Deputy Barajas (Barajas) arrived to assist
Albaran.
Barajas located defendant inside one of the
apartments. Barajas radioed that he was
holding defendant at gunpoint. Albaran
arrived at the apartment and also drew his gun.
Defendant was following orders given by Barajas, such as lying on the
ground. Barajas then instructed
defendant to stand up and put his hands on top of his head. Defendant stood up, and Barajas tried to
holster his gun in order to handcuff defendant, but the two began
fighting.
The
fight began in the kitchen. Defendant
was reaching on the countertops “for anything he could get his hands on.†Albaran yelled for Barajas to leave the
kitchen; it appeared defendant was reaching for a knife, and the kitchen was
too small of a space for Albaran to shoot defendant. Defendant yelled, “‘You’re not fucking taking
me.’â€
The fight moved into the living room. It was a “knock down, drag out fight . . .
all over that living room,†with punching and kicking. Albaran sprayed defendant with a chemical
agent from a distance of two or three feet, but it only increased defendant’s
fury. Albaran feared for his and
Barajas’s lives. Defendant was sweating
profusely and his clothes were coming off.
The fight continued in the living room.
At one point, defendant managed to throw the two deputies off him, and
ran toward the apartment’s entry door.
Just as defendant was exiting through the door, Sergeant
Bracey was running toward the door.
Defendant collided with Sergeant Bracey, and thus was kept in the
apartment. Defendant continued fighting
the three law enforcement officers.
Eventually, with the help of a fourth deputy, they were able to handcuff
defendant. It took all four law
enforcement officers to place defendant in handcuffs. Albaran was able to recall the incident after
11 years because during his 14 years as a law enforcement officer, the fight
with defendant “was way by far the worst fight that [he had] ever been in.†Defendant suffered swelling on his face and a
bloody nose. Barajas suffered a hand
injury. Albaran had cuts on his hand.
A. TROMBETTA/YOUNGBLOOD
MOTION
1. PROCEDURAL
HISTORY
Prior to trial, defendant filed a motion asserting his
due process rights had been violated because the State willfully destroyed
evidence. Defendant explained Sergeant
Marks obtained a recording of the 911 call and related “audio traffic,†in the
instant case, as well as dispatch logs and a computer generated printout of the
call. Marks listened to the audio
recording and then booked the items into evidence. When an investigator from the district
attorney’s office tried to retrieve the audio recording and report from the
Sheriff’s property room, the items could not be located.
Defendant argued the audio recording was important
because “it establishes a basis for the officer to contact the defendant at
all, and whether the defendant matched the description†given by the reporting
party. Defendant asserted the dispatch
logs were necessary to prove “the sequence of events and time frame.â€
At a hearing, the trial court and the parties speculated,
but agreed, that the evidence was likely still in the Sheriff’s property room
but that it could not be located and “[t]here’s just no way to retrieve
it.†The trial court described the
Sheriff’s property room as a place “where evidence goes to die.†The prosecutor explained that Marks prepared
a report about the audio recording based upon listening to the recording.
Defendant expressed concern that Marks’s report about the
audio traffic (discussion between Davis and dispatch) only covered words that
were said and not background noise.
Defendant believed the background noises might provide context to what
was happening during defendant and Davis’s interaction. The trial court stated it wanted to hear from
Marks about whether any exculpatory information was on the recordings, and why
the evidence could not be retrieved from the property room. The prosecutor said he would try to schedule
“somebody†to testify for the evidentiary hearing.
The following day, the prosecutor stated the dispatch
logs were located. The logs are “drafted
by a dispatcher so when somebody calls 911, anything that’s said is printed out
on this catalog.†The prosecutor did not
have the audio recording—just the printout.
The trial court said to defense counsel, “So I do not think you have a
printout. [¶] And you’d say, ‘Yeah, I agree.’ Right?â€
Defense counsel responded, “Um, well, we’ll see, your Honor.†The trial court said, “Well, in any event,
okay. That should—that may resolve the
problem. You will present it as an
exhibit, and I don’t know what I’ll do yet.
[¶] But the next thing I want to
do is pick the jury.â€
Several days later, defense counsel asked the trial court
to clarify if it denied the Trombetta
motion. The trial court said, “Yeah, I
think so.†The court explained the
printout was available, but the audio recording “disappeared in the [Sheriff’s]
evidence locker. [¶] . . . [¶] . . . Where things go to disappear.†The court then moved on to discussing the
content of the dispatch logs and whether certain information needed to be
redacted, such as defendant appearing to be “a gangster-looking person.â€
2. ANALYSIS
a) Contentions
Defendant contends the trial court erred by (1) denying
his Trombetta/Youngblood motion, and
(2) not conducting an evidentiary hearing on the motion. The People contend defendant forfeited the
pushing for an evidentiary hearing after the prosecutor produced the transcript
of the dispatch logs. We agree with the
People.
b) Forfeiture Law
“A fundamental tenet of our system of justice is the
well-established principle that a party’s failure to assert error or otherwise
preserve an issue at trial ordinarily will result in forfeiture of an appeal of
that issue. ‘“The purpose of the general
doctrine of waiver is to encourage a defendant to bring errors to the attention
of the trial court, so that they may be corrected or avoided and a fair trial
had.â€â€™ [Citation.]†(People
v. McKinnon (2011) 52 Cal.4th 610, 636, fn. omitted.)
c) Standard of Review
“The standard of review of a trial court’s determination
that evidence is or is not sufficiently exculpatory under Trombetta and Youngblood
is unsettled, and it may depend on the extent of the inquiry a court takes
before ruling on a Trombetta
motion.†(People v. Velasco (2011) 194 Cal.App.4th 1258, 1262.) “It is settled that the substantial evidence
standard applies to a trial court’s determination, following a factual inquiry,
that the state acted in good or bad faith in failing to preserve evidence. [Citation.]â€
(Ibid.) However, it is unclear what standard of
review applies when a hearing is not conducted.
(Ibid.) For the sake of caution, we will apply the de
novo standard of review. (
928, 930-931 [applying de novo standard of review although a factual inquiry
took place].)
d) Trombetta/Youngblood
Law
“Under Trombetta
and Youngblood, ‘Law enforcement
agencies must preserve evidence only if it possesses exculpatory value
“apparent before [it] was destroyed,†and not obtainable “by other reasonably
available means.†[Citations.] The state’s responsibility is further limited
when the defendant challenges the failure to preserve evidence “of which no
more can be said than that it could have been subjected to tests†that might
have helped the defense.
[Citation.] In such a case, unless
the defendant can show “bad faith†by the police, failure to preserve
“potentially useful evidence†does not violate his due process rights.’ [Citation.]â€
(People v. Velasco,
e) Analysis
The dispatch logs do not appear on the prosecution’s or
defense’s exhibit lists. The record does
not include a clerk’s exhibit list.
There is nothing reflecting in the record that the dispatch logs
indicate the sounds of a struggle taking place, such that there would be exculpatory
evidence of Davis applying excessive force to defendant. For example, transcripts will sometimes
indicate, “Unintelligible. Background
noise.†It appears to be only
defendant’s speculation that exculpatory material may be on the audio
recording. Thus, defendant needs to show
bad faith on the part of law enforcement for failing to preserve the evidence.
It is at this point that we encounter a forfeiture
problem. Defendant did not request a
hearing on the issue of bad faith. Trial
counsel and the trial court agreed the evidence likely still existed but was
lost in the Sheriff’s property room. The
trial court commented about evidence regularly “dying†and “disappearing†in
the Sheriff’s property room; however, these discussions are not evidence. There is nothing for this court to look at
when conducting a de novo review concerning the bad faith issue. By failing to request a hearing, or at least
making an offer of proof, we are left with nothing to review. (People
of Territory of Guam v. Muna (9th Cir. 1993) 999 F.2d 397, 400 [burden is
on defendant to show government’s bad faith].)
As a result, we conclude defendant forfeited the issue on appeal.
Defendant presents the following argument: Marks listened to the recording before it
disappeared. Therefore, to the extent
there was exculpatory information on the recording, Marks was aware of it. Defendant then asserts, “So if the recording
was exculpatory, bad faith was present.â€
Defendant’s reasoning is problematic.
We do not know whether the recording contained exculpatory information,
which is why we have moved our analysis to the next step: was there bad faith? Defendant’s argument is moving in a circle,
in that he is using the speculation about possible exculpatory information to
support the argument about bad faith.
Rather than circling back to speculating about the possible exculpatory
nature of the evidence, defendant needs to explain if there is evidence of
animus between him and the deputies, or evidence of a calculated or conscious
decision to destroy the evidence. (
official animus towards respondents or of a conscious effort to suppress
exculpatory evidenceâ€].) Accordingly, we
find defendant’s argument to be unpersuasive.
Next, defendant asserts the circumstances surrounding the
recording’s disappearance are suspicious because (1) Lieutenant Ybarra, who
seemingly is not connected with the case, was the last person to check out the
recording before it disappeared, (2) the evidence was supposedly lost for a
year, but the dispatch logs were located within a day of the motion hearing,
and (3) the transcript was separated from the audio recording despite the items
being booked into evidence together, under the same barcode number. Defendant’s argument lacks record citations,
and we are unable to locate any evidence
supporting these assertions. It appears
defendant is relying on comments made during the hearings and the argument in
defendant’s trial court motion brief, as opposed to statements made under oath
by witnesses. While we appreciate
defendant may fault the trial court for not holding a hearing that would permit
him to have testimony, we are again confronted with the problem that defendant
did not request a hearing on the bad faith issue. Thus, we are again confronted with the issue
of forfeiture, and therefore find defendant’s argument to be unpersuasive.
B. EVIDENCE OF DAVIS’S PRIOR USE OF
EXCESSIVE FORCE
1. PROCEDURAL
HISTORY
Prior to the start of trial, the prosecutor informed the
trial court that defendant had previously brought a Pitchess motion. As a result
of that motion it was discovered that Davis’s file included an allegation of
excessive force from 2005 or 2006; however, the allegation was deemed unfounded
by the Sheriff’s Department and Davis was not disciplined as a result of the
incident. The prosecutor asserted the
excessive force evidence was not relevant and improper character evidence.
Defendant explained he planned to present a statement
from Enrique Mendoza who alleged Davis punched him two times after Mendoza was
in handcuffs. Defendant asserted the
allegations were deemed unfounded by the Sheriff’s Department only because
Mendoza grew tired of pursuing the claim.
Defendant argued the evidence was relevant because his defense theories
were excessive force by Davis and self-defense.
Defendant argued Mendoza’s excessive force allegation “goes to the crux
of the defense.â€
The trial court said it could not rule on the motion
because it did not “know what’s going to be said by the defense.†The trial court said it would not speculate
about the defense’s case, and it would wait until evidence was presented at
trial to determine whether Mendoza’s statement became relevant. The trial court explained, “It’s not
appropriate until you have a foundation that makes it appropriate and
relevant. Obviously the defendant is the
only person that can do that . . . . If
he does not testify, then it never gets in.â€
The following day, the prosecutor again raised the issue
of prior excessive force allegations against Davis. The prosecutor explained that he wanted to be
the person to ask Davis about the allegations, if the evidence were deemed admissible. Thus, the prosecutor asked the court to make
a determination as to whether the evidence would be admissible pursuant to
Evidence Code section 352. The
prosecutor argued evidence of the prior incident would be improper character
evidence.
Defendant argued the evidence “goes specifically to
negate elements of the offense itself,†because it would show Davis was not
lawfully executing his duties. Further,
defendant asserted the evidence supported an assertion of self-defense on the
part of defendant. Defendant asserted he
should be permitted to cross-examine Davis on the prior allegation of excessive
force.
The
trial court did not change its prior decision.
The court explained it could not know if the evidence was relevant until
defense evidence was presented at trial.
The trial court said, “Once again, no motion in limine, no decision on
the evidence at this time until the case plays itself out, and the issue raises
itself. So sometimes in limines don’t
get granted, and we just wait and see what the evidence shows. Sorry.â€
Several days later, defense counsel asked the trial court
to clarify its ruling. Defense counsel
asked whether she could cross-examine Davis about Mendoza’s excessive force
allegation. The trial court responded,
“Well, my tentative ruling is I don’t see how it’s going to be relevant to this
case.†Defense counsel argued the
evidence was relevant because it negated elements of a charged offense. Defense counsel then said, “But if the Court
is going to rule it’s not admissible, I just want to know so I do not get into
it.†The trial court clarified, “If time
passes and it becomes obvious it’s important, I get to change my mind.†Defense counsel responded, “Okay.â€
After Davis completed his testimony, defense counsel
again moved to present Mendoza’s testimony.
Counsel argued Davis denied ever using force against a person who was
not using force against him. Counsel
asserted Mendoza’s testimony would impeach Davis and negate elements of a
charged offense. Defense counsel
asserted Mendoza should be allowed to testify regardless of whether defendant
testified. The trial court responded,
“Same ruling. I think not.†The trial court explained the evidence was
irrelevant.
2. ANALYSIS
Defendant contends the trial court erred by not admitting
evidence of Mendoza’s prior abuse allegations against Davis unless defendant
testified. The People focus their
argument on harmless error, arguing defendant has failed to show a different
outcome would have likely occurred if Mendoza’s allegations had been presented at
trial. We conclude the alleged error was
harmless.
A trial court “in its discretion may exclude evidence if
its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create
substantial danger of undue prejudice, of confusing the issues, or of
misleading the jury.†(Evid. Code, §
352.) “‘A trial court’s exercise of
discretion in admitting or rejecting evidence pursuant to Evidence Code section
352 “will not be disturbed on appeal unless there is a manifest abuse of that
discretion resulting in a miscarriage of justice.†[Citation.]’
[Citation.]†(
485.)
Since the People focus their argument on harmless error,
we will assume the trial court erred by not permitting defendant to present
evidence of Mendoza’s prior abuse allegations against Davis. Therefore, we must consider if the error was
harmless. Where a “trial court’s ruling
did not constitute a refusal to allow [a] defendant to present a defense, but
merely rejected certain evidence concerning the defense . . . the proper
standard of review is that enunciated in People
v. Watson [(1956)] 46 Cal.2d 818, 836.
[Citation.]†(
1229, 1325 (Bradford).)
In the instant case, defendant presented photographs of
his body and details of the injuries he received, including the fact that he
was hospitalized. Defendant questioned
Davis about Davis’s past use of excessive force. Additionally, the trial court instructed the
jury that defendant had the right to defend himself against an officer’s use of
unreasonable or excessive force.
(CALCRIM No. 2670.) Since
defendant was able to present his defense, but was denied a certain piece of
evidence concerning that defense, we apply the Watson standard. Under the
whether it is reasonably probable the verdict would have been more favorable to
defendant if the trial court had admitted evidence of Mendoza’s prior abuse
allegations against Davis. (
We conclude it is not reasonably probable a result more
favorable to defendant would have occurred but for the trial court’s error,
because the evidence supported a finding that defendant resisted Davis prior to
the fight in the residential backyard.
Defendant could have been found guilty of resisting Davis based upon
defendant running away from Davis when Davis was attempting to handcuff
defendant. The evidence reflects Davis
started placing defendant’s hands behind his back, but defendant pulled his
arms from Davis’s grasp, shoved the deputy, and then ran down the street. Davis chased after defendant.
Accordingly,
even if defendant had presented evidence of Mendoza’s allegations against
Davis, it is not reasonably probable a more favorable result would have
occurred, because Davis had not used any force at the time defendant could have
been found to have completed the charged offense. Thus, we conclude any error was harmless.
C. EVIDENCE
OF PRIOR ACT OF RESISTING ARREST
1. PROCEDURAL
HISTORY
Prior to the start of trial, the prosecutor moved to
present evidence of defendant’s prior act of resisting arrest, wherein four
deputies were needed to place him in handcuffs.
(Evid. Code, § 1101, subd. (b).)
The prosecutor asserted the evidence was relevant to show defendant’s
intent and lack of mistake. In the trial
court’s tentative ruling, it stated the evidence would be admissible because it
is relevant to show defendant was not mistaken about Davis being a law
enforcement officer. The trial court
tentatively concluded the evidence was admissible for “two bases, content and
lack mistake.†We infer “content†means
“intent.â€
Defendant argued the prior offense evidence was not
relevant to prove intent because the charged offenses were general intent
crimes. As to mistake, defendant argued
the evidence was not relevant because the defense was not raising mistake as an
issue. The trial court responded that
defendant put every element of the offense at issue by pleading not guilty, and
therefore the trial court could not limit the prosecutor by the issues
defendant chose to make larger than others.
Defendant argued the prior offense was factually
dissimilar from the charged offense because (1) the prior offense was “ten
years old,†and (2) the crimes involved different deputies. The trial court ruled the prior offense
evidence was admissible.
2. ANALYSIS
Defendant contends the trial court erred by admitting
evidence of his prior act of resisting arrest.
We disagree.
“Evidence of prior uncharged acts is inadmissible to
prove the defendant’s bad character, but may be admitted if relevant to prove
motive, opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident, among other facts. [Citations.]â€
(People v. Lopez (2011) 198
Cal.App.4th 698, 714.) “‘The trial court
has the discretion to admit evidence of crimes committed by a defendant other
than the one for which he is charged, if such evidence is relevant to prove
some fact at issue, and if the probative value of the evidence outweighs its
prejudicial effect. [Citation.] “When reviewing the admission of evidence of
other offenses, a court must consider (1) the materiality of the fact to be
proved or disproved, (2) the probative value of the other crime evidence to
prove or disprove the fact, and (3) the existence of any rule or policy
requiring exclusion even if the evidence is relevant,â€â€™â€ such as Evidence Code
section 352. (People v. Spector (2011) 194 Cal.App.4th 1335, 1372-1373.) We review the trial court’s evidentiary
ruling for abuse of discretion. (
We
begin by considering the issue of materiality.
Prior to the start of trial, while arguing against the introduction of
the prior crimes evidence, defendant said he planned to rely on a theory of
self-defense. In closing arguments
defendant argued a theory of self-defense.
In order to be acquitted on a theory of self-defense, a defendant must
prove he reasonably believed that he was in imminent danger of suffering bodily
injury and reasonably believed that the immediate use of force was necessary to
defend against that danger. (
1073, 1082.)
By arguing a theory of self-defense, defendant made his
state of mind a disputed issue. Whether
defendant reasonably believed he needed to defend himself was a material fact
that the prosecution was required to disprove in order for the jury to find
defendant guilty of the charged crimes.
Accordingly, the prior offense evidence related to a material
fact—defendant’s state of mind.
Second, we address the probative value of the prior
offense evidence. “The least degree of
similarity (between the uncharged act and the charged offense) is required in order
to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . .
tends (increasingly with each instance) to negative accident or inadvertence or
self-defense or good faith or other
innocent mental state, and tends to establish (provisionally, at least, though
not certainly) the presence of the normal, i.e., criminal, intent accompanying
such an act . . . .’ [Citation.]†(People
v. Ewoldt (1994) 7 Cal.4th 380, 402, italics added.)
The
prior offense evidence reflects that in July 2000, as Deputy Williamson began
to pat-down defendant, defendant turned, raised an elbow, and then ran
away. Williamson chased after defendant,
but was unable to locate him. In August
2000, Deputy Albaran stopped his patrol car near defendant and shined a spotlight
on him; defendant turned around and ran into an apartment. In the current case, in March 2010, as Davis
was placing defendant’s hands behind his back, defendant pulled his arms from
Davis’s grasp, shoved the deputy, and then ran down the street. Davis chased after defendant in his patrol
vehicle and then on foot once defendant ran through a residential backyard.
The prior offenses are similar to the charged offense
because they all involve defendant running away from a deputy during the
initial contact, and appearing to be under the influence of a controlled
substance. In July 2000, defendant
appeared to be under the influence of a controlled substance. In August 2000, four officers were needed to
place defendant in handcuffs. In the
current case, defendant tested positive for amphetamines, and two deputies were
needed to place defendant in handcuffs.
The current case concerns defendant’s third time running
away from an officer during the first moments of contact. The prior offense evidence is probative
because it tends to negate defendant’s claim that he was acting in self-defense
when shoving Davis and running away, and it tends to prove defendant had a
criminal mindset in committing the charged acts—not an innocent mindset of
self-defense.
Third,
we consider the possible prejudicial effect of the evidence. Prior offense evidence is prejudicial when it
requires an undue consumption of time, or creates a substantial danger of
confusing the issues or of misleading the jury.
(People v. Leon (2008) 161
Cal.App.4th 149, 168.) The prior crime
evidence was presented via the testimony of two witnesses. Since there were only two witnesses, the
prior offense evidence was not a danger for consuming a great deal of time.
As to confusing or misleading the jury, the crimes
occurred 10 years apart, and the deputies involved in the July 2000, August
2000, and March 2010 incidents all testified.
Thus, it should have been clear to the jury that the incidents were separate
due to the lapse in time and different deputies involved. As a result, there was not a substantial risk
of the jury being confused or misled by the prior crime evidence. In sum, the trial court’s decision to admit
the prior crime evidence was within reason.
Therefore, we conclude the trial court did not err.
Defendant contends the trial court erred because it
failed to weigh the prejudicial effect of the prior offense evidence against
the probative value of the evidence.
During the discussion about admitting the evidence, the trial court
asked the attorneys if they had read People
v. Ewoldt, supra, 7 Cal.4th 380,
because it contained an “[e]ighteen-page explanation of [Evidence Code section]
1101 and how all of it plays together by [the] California Supreme Court.†Thus, the trial court was familiar with the
case law related to prior crimes evidence.
Nevertheless, the fact is that the record is silent about the trial
court’s views on the prejudicial effect of the prior offense evidence. We do not assume there is an error when the
record is silent; rather, we presume the trial court was aware of and followed
the applicable law. (
1213, 1229.) Thus, we find defendant’s
argument to be unpersuasive, because we must presume the trial court followed
the law.
Next, defendant asserts the trial court erred because it
incorrectly believed it had to allow the People to present the prior offense
evidence due to defendant pleading not guilty and placing every element of the
offense at issue. Defendant’s argument
is not persuasive because this court reviews rulings, not the reasons for the
rulings, and therefore, we will not find an error if the ruling is correct on
any basis. (People v. Geier (2007) 41 Cal.4th 555, 582.) As set forth ante, there was a reasonable basis for the trial court’s
evidentiary ruling.
D. DAVIS’S
BELIEFS ABOUT DEFENDANT
1.
During Davis’s direct examination the following exchange
took place:
“[Prosecutor]:
What are you thinking—as you’re understanding the scene and
understanding what the call was about—what are you thinking at this point?
“[Davis]: First
off that—through my head—is probably burglarizing something [
“[Defense Counsel]:
Objection, speculative. Move to
strike.
“The Court:
Overruled.
“[Prosecutor]:
You’re thinking this could possibly be a burglary suspect?
“[Davis]: Correct.
“[Prosecutor]:
What about the person or the description that you heard about this
person led you to believe that this could be a burglary suspect?
“[Davis]: Well,
the pillow[case] primarily. People will
burglarize houses, take pillow[cases] from the homes and put the stolen
property inside pillow[cases]. So that
was the first thought that went through my head.â€
As Davis’s testimony continued, the following exchange
occurred:
“[Prosecutor]:
Would you interact with somebody differently who is on parole as opposed
to somebody who is not on parole?
“[Davis]: I would.
“[Prosecutor]:
Describe how that works.
“[Davis]: Well,
when someone’s on parole, you know they have been to state prison. I would treat someone who I know has been to
state prison—I would treat them differently than someone that didn’t, just
because, you know, if they’ve been to state prison that it’s a hard life.
“[Defense Counsel]:
Objection. Speculation,
foundation. Move to strike.
“The Court:
Overruled.
“[Prosecutor]: Are
you a little more cautious with people on parole?
“[Davis]: I am.
“[Prosecutor]: Are
you concerned for your safety more so dealing with somebody on parole as
opposed to somebody who is not on parole?
“[Davis]: Yes.â€
2. ANALYSIS
Defendant contends the trial court erred by permitting
Davis to testify about his beliefs that defendant was (1) likely trying to
commit a burglary, and (2) an especially dangerous person due to having been
incarcerated. Defendant asserts the
evidence was “based on speculation and lacked foundation.â€
“If a witness is not testifying as an expert, his
testimony in the form of an opinion is limited to such an opinion as is
permitted by law, including but not limited to an opinion that is: (a) Rationally based on the perception of the
witness; and (b) Helpful to a clear understanding of his testimony.†(Evid. Code, § 800.) “The admission of a layperson’s opinion testimony
lies in the discretion of the trial court and will not be disturbed ‘“unless a
clear abuse of discretion appears.
[Citation.]â€â€™ [Citation.]†(People
v. Brown (2001) 96 Cal.App.4th Supp. 1, 33.)
Section 69 requires the prosecutor to prove the deputy
was “performing any duty imposed upon such officer by law.†Section 148, subdivision (a)(1), requires the
prosecutor to prove the deputy was discharging or attempting “to discharge any
duty of his or her office or employment.â€
Davis opined about defendant likely trying to commit a burglary because
that testimony explained why Davis felt the need to stop and speak to
defendant. Davis explained that his
opinion was based on his perception of the situation, e.g., defendant was
carrying a pillowcase and pillowcases are often used to carry items out of
houses. Thus, Davis’s burglary opinion
could reasonably be admitted as a layperson’s opinion testimony because (1) it
was rationally based on Davis’s perception, and (2) it clarified the material
issue of why Davis felt stopping defendant was a part of his job duties.
As to Davis’s opinion that parolees are more dangerous
people, Davis was explaining why he performs his job duties in a particular
manner—why he is more cautious around parolees.
Davis’s testimony helped to clarify the material issue of whether Davis
was lawfully performing his duties, because it provided context to the
interaction between Davis and defendant.
If the testimony jumped from defendant walking down the street to Davis
patting down defendant, then the jury likely would have been confused. The jury needed to understand that Davis
believed defendant may have been planning a burglary, and that Davis felt the
need to pat-down defendant, due to parolees being a more dangerous class of people. In sum, the trial court had a reasonable
basis for overruling defendant’s objections, and therefore we conclude the
court did not abuse its discretion.
Defendant asserts the trial court erred because witnesses
may only testify to matters within their personal knowledge. (Evid. Code, § 702, subd. (a).) Defendant contends Davis’s opinion testimony
was problematic because it was not based solely on Davis’s observations, but
also on the information Davis received from the dispatcher. Defendant’s argument is not persuasive
because Davis testified that his opinion was based upon observing the
pillowcase, in that the pillowcase immediately made him believe defendant was
plotting a burglary. Davis personally
saw defendant walking with a pillowcase.
Accordingly, Davis’s testimony was based on events he personally
observed, i.e., defendant walking down the street with a pillowcase.
E. PROSECUTORIAL MISCONDUCT
1. PROCEDURAL
HISTORY
During closing argument, defense counsel said, “And for
as violent or crazy of a struggle [as] this appeared to be, [Davis] and Deputy
Broda walked out unscathed, but [defendant] ended up in the hospital for three
days. So I think it’s pretty clear what
did, in fact, happen. And it was very
much excessive force.â€
At the beginning of the prosecutor’s rebuttal closing
argument, he said, “[Defendant] was in the hospital for an elevated heart
rate. And what causes elevated heart
rates? I submit to you folks, swallowing
a gram of methamphetamine. That’s why he
was in the hospital. You are going to
see the pictures. Is that somebody who
got the hell beat out of him? Somebody
with ‘Try me’ tattooed on his eyelids?
Try me?†At that point, defense
counsel objected, saying, “Objection, improper—†The trial court overruled the objection. The prosecutor resumed his argument saying,
“Try me. That’s this defendant. Try me.â€
2. ANALYSIS
Defendant contends the prosecutor committed misconduct by
arguing that a person with the words “try me†tattooed on his eyelids was not a
victim of excessive force. Defendant
asserts that portion of the prosecutor’s argument was irrelevant and
inflammatory. We disagree.
“Under the federal Constitution, a prosecutor’s behavior
deprives a defendant of his rights ‘when it comprises a pattern of conduct “so
egregious that it infects the trial with such unfairness as to make the
conviction a denial of due process.â€â€™
[Citations.] Conduct that falls
short of that standard ‘may still constitute misconduct under state law if it
involves the use of deceptive or reprehensible methods to persuade the trial
court or the jury.’ [Citations.]†(People
v. Gamache (2010) 48 Cal.4th 347, 370-371.)
“[A] prosecutor is given wide latitude during
argument. The argument may be vigorous
as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. . . . [Citation.]
A prosecutor may vigorously argue his case[.] [Citations.]
To prevail on a claim of prosecutorial misconduct based on remarks to
the jury, the defendant must show a reasonable likelihood the jury understood
or applied the complained-of comments in an improper or erroneous manner. [Citation.]â€
(People v. Gamache,
quotations omitted.)
Defendant’s tattoos were part of the photographs
submitted as evidence. The prosecutor
commented on defendant’s tattoos when explaining to the jury that it was
unlikely defendant was in the hospital for three days due only to the actions
of the deputies. The prosecutor believed
that if a person with “try me†tattooed on his eyelids were put in the hospital
for three days due to a fight, then the other people involved in the fight
would not have walked away so easily. The
prosecutor’s point was that defendant was in the hospital due to ingesting a
gram of methamphetamine—not due to excessive brutality on the part of the
deputies.
In commenting on defendant’s tattoos, the prosecutor was
citing evidence and giving his interpretation of that evidence. Therefore, the prosecutor’s comments were not
misconduct, because it is unlikely that the jury understood the comments to be
anything other than the prosecutor expressing his belief that a person with
“try me†tattooed on his eyelids would not be in a hospital for three days due
solely to a fight, when the other people involved in the fight walked away
relatively unscathed.
Defendant asserts the prosecutor committed misconduct
because he told the jury to use defendant’s tattoos as propensity
evidence—evidence that defendant “is the kind of person who resists arrest and
needs to be dealt with by extreme methods.â€
We are reviewing the argument to determine whether there is a reasonable
likelihood the jury applied the comments in an improper manner. The context of the prosecutor’s statements
causes defendant’s interpretation of the statements to be unreasonable. The prosecutor discussed defendant’s tattoos
to explain why defendant was in the hospital for three days, and how it was
unlikely that defendant was in the hospital due solely to the fight with the
deputies. Defendant’s interpretation of
the prosecutor’s statements appears to lift the statements entirely out of
context, which is not reasonable. Thus,
we find defendant’s argument to be unpersuasive.
F. INITIAL DETENTION INSTRUCTION
1. PROCEDURAL
HISTORY
The trial court instructed the jury with CALCRIM No.
2670, which provides, in relevant part:
“A peace officer is not lawfully performing his or her duties if he or
she is unlawfully arresting or detaining someone or using unreasonable or
excessive force when making or attempting to make an otherwise lawful arrest or
detention. [¶] A peace officer may legally detain someone if
the person consents to the detention or if:
[¶] 1. Specific facts known or apparent
to the officer lead him or her to suspect that the person to be detained has
been, is, or is about to be involved in activity relating to crime; [¶] AND [¶]
2. A reasonable officer who knew the same facts would have the same suspicion. [¶]
Any other detention is unlawful.
[¶] In deciding whether the
detention was lawful, consider evidence of the officer’s training and
experience and all the circumstances known by the officer when he or she
detained the person.â€
2. ANALYSIS
Defendant asserts the jury was incorrectly instructed
with CALCRIM No. 2670 because there is not substantial evidence supporting the
theories that defendant consented to the detention or that Davis had a
reasonable suspicion defendant was involved in criminal activity. We disagree.
“‘[A] trial judge must only give those instructions which
are supported by substantial evidence[.]’
[Citations.]†(
810, 823.) “Substantial evidence in this
context ‘“is ‘evidence sufficient “to deserve consideration by the jury,†not
“whenever any evidence is presented,
no matter how weak.â€â€™â€
[Citations.]’ [Citation.]†(Ibid.) We review alleged instructional errors de
novo. (People v. Burch (2007) 148 Cal.App.4th 862, 870.)
We
first address the consent portion of CALCRIM No. 2670. Davis testified that a person on parole is
“still sentenced†and had surrendered his right to search and seizure. Davis explained, “[I]f you’re on parole
you’re subject to search without cause.â€
Davis stated that he recognized defendant as an active parolee when
defendant was walking down the street, because defendant’s photograph was
included in a binder or database of active parolees in the Rubidoux area, which
Davis frequently reviewed. After the
incident with defendant, Davis verified that defendant was on parole at the
time of the incident. The foregoing is
substantial evidence that defendant consented to being stopped and searched
when he accepted the terms of his parole.
Thus, the trial court could properly instruct the jury with CALCRIM No.
2670.
Second, as to Davis’s reasonable suspicion defendant was
involved in committing a crime, Davis explained his belief that defendant was
planning a burglary. Davis was
dispatched following a 911 call from a woman who had a man knock on her door,
ask for an electrical cord for a lawnmower, and who claimed to live next door
in a vacant house. Defendant matched the
description of the man who knocked on the woman’s door, and he was walking down
the street where the woman’s house was located.
Defendant was carrying a pillowcase as he walked down the street. Due to the pillowcase, Davis believed
defendant might be planning to burglarize a house because, “[p]eople will
burglarize houses, take pillow[cases] from the homes and put the stolen
property inside pillow[cases].â€
The
foregoing evidence reflects suspicious behavior on defendant’s part. Knocking on a person’s door and claiming to
live in a vacant house, followed by walking down the street with a pillowcase,
are activities that would cause a reasonable person to suspect defendant was
involved in criminal activity. Thus, the
record includes substantial evidence from which the jury could reasonably
conclude Davis suspected defendant had been or was about to be involved in
activity relating to crime, and that a reasonable officer who knew the same
facts would have the same suspicion.
Accordingly, the trial court did not err by instructing the jury with
CALCRIM No. 2670.
G. SEARCH AND ARREST INSTRUCTION
Defendant contends the trial court erred by instructing
the jury with CALCRIM No. 2670 because it only gave the jury information about
lawful detentions. Defendant asserts
that since he was accused of resisting an officer during a detention and
search, the jury also needed to be instructed on the law related to a proper
search. We disagree.
CALCRIM No. 2673 describes lawful pat-down searches. The bench notes for CALCRIM No. 2673 read
only, “The court may give this instruction on request.†It does not appear from the record that the
defense requested CALCRIM No. 2673.
Nevertheless, to the extent the trial court has a sua sponte duty to
instruct with CALCRIM No. 2673, we conclude an error did not occur in this
case.
As set forth ante,
“‘[A] trial judge must only give those instructions which are supported by
substantial evidence . . . .’
[Citations.]†(
Davis testified that he was placing defendant’s hands behind his back in
order to begin the pat-down when defendant “pulled his arms free from [Davis’s]
grasp, shoved [Davis], and ran . . . away.â€
Thus, Davis was not patting-down defendant when defendant broke away and
ran. Rather, Davis was holding
defendant’s arms behind defendant’s back.
Given the foregoing evidence, we conclude the trial court did not err by
not instructing the jury with CALCRIM No. 2673, because a search was not taking
place.
H. SECTION 834, SUBDIVISION A
Defendant asserts the trial court erred by including
information about section 834a in the CALCRIM No. 2670 instruction. The portion of CALCRIM No. 2670 defendant is
alleging to be erroneous is as follows:
“If a person knows, or reasonably should know, that a peace officer is
arresting or detaining him or her, the person must not use force or any weapon
to resist an officer’s use of reasonable force.†(CALCRIM No. 2670; § 834a.) Defendant asserts this portion of the
instruction gives the erroneous impression that a person may never use force
against a law enforcement officer, even in the situation where the law
enforcement officer is conducting an unlawful arrest. Defendant contends this is problematic
because it was undisputed that he used force against Davis, and therefore this
instruction “had the effect of eliminating the lawful performance element of
the resisting charges.†We disagree.
A defendant has a right to have the jury determine every
element of the charged offenses. (
480-481.) “We determine whether a jury
instruction correctly states the law under the independent or de novo standard
of review. [Citation.] Review of the adequacy of instructions is
based on whether the trial court ‘fully and fairly instructed on the applicable
law.’ [Citation.] ‘“In determining whether error has been
committed in giving or not giving jury instructions, we must consider the
instructions as a whole . . . [and] assume that the jurors are intelligent
persons and capable of understanding and correlating all jury instructions
which are given.†[Citation.]’ [Citation.]
‘Instructions should be interpreted, if possible, so as to support the
judgment rather than defeat it if they are reasonably susceptible to such
interpretation.’ [Citation.]†(People
v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
If a trial court includes the section 834a law when
instructing the jury about resisting arrest in a case involving allegations of
| Description | A jury found defendant and appellant Joseph Angel Chavez guilty of attempting to deter an executive officer from performing his duties or resisting an executive officer by force or violence (Pen. Code, § 69),[1] willfully resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), and being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)). Defendant admitted suffering a prior strike conviction (§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), and three prior convictions for which he served prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a term of five years, eight months.[2] Defendant raises 15 issues on appeal. First, defendant contends the trial court erred by denying his motion concerning the State’s failure to gather and preserve evidence.[3] Second, defendant asserts the trial court erred by ruling evidence of a deputy’s prior use of excessive force could be admitted contingent on defendant testifying. Third, defendant contends the trial court erred by admitting evidence of defendant’s prior conviction for resisting arrest. |
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