P. v. Holman

Filed 6/18/07 P. v. Holman CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Mark J. Holman was convicted by jury of deterring an officer (Pen,. Code,  69)^[1], resisting an officer in the performance of his duties ( 69), resisting, obstructing or delaying a peace officer ( 148, subd. (a)(1)), and battery on State Park Peace Officer Matthew Yarbrough ( 243, subd. (b)). The trial court suspended imposition of sentence and granted probation. Holman appeals, contending that the trial court erred in permitting the prosecution to cross-examine him about a 1997 police altercation. We affirm.

On the evening of October 15, 2004, Officer Matthew Yarbrough saw appellant drive out of El Capitan State Beach Park without wearing his seat belt. Appellant was traveling 25 to 30 miles per hour, almost twice the posted speed limit. After Officer Yarbrough activated his overhead lights, appellant drove half a mile before stopping on Highway 101. Appellant started to open his door but was ordered to stay in the Honda. Angry, appellant got out and yelled, "Why are stopping me? Why are you harassing me?"

Officer Yarbrough ordered appellant to step over to the road shoulder because they were standing too close to highway traffic. Appellant yelled, "I want your badge number. I want your name. Why are you harassing me again?" Appellant started to open the car trunk, disregarding orders to step away from the Honda.

As appellant reached into the trunk, Officer Yarbrough grabbed his left arm. Appellant threw a punch and missed. Officer Yarbrough's partner, Officer Tyson Butzke, tried to grab appellant but appellant elbowed him in the head, knocking Butzke into the police vehicle.

Appellant was wrestled to the ground. He resisted by hitting, kicking, and biting the officer. Officer Yarbrough told appellant if he did not stop fighting, he would be pepper sprayed.

Officer Butzke and two more officers assisted in the arrest. Appellant was repeatedly ordered (10 to 20 times) to get up, refused to do so, and made the officers lift him up. Inside the car trunk, the officers found a can of mace in an open briefcase.

At trial, appellant claimed that he was wearing his seat belt and that the officers were harassing him. Appellant defended on the theory that Officer Yarbrough used unreasonable force and instigated the altercation while appellant was getting a pen out of his briefcase.

Cross-Examination

On direct, appellant testified that he "I wasn't looking for an altercation" and "I'm never looking for an altercation." Appellant stated that the can of mace had been in the car trunk "for many, many years through dozens of traffic stops."

The prosecution requested permission to cross-examine appellant about a 1997 traffic stop in which appellant was cited for a traffic violation and threw the citation at the officer.^[2] Overruling appellant's Evidence Code section 352 objection, the trial court found: "The general import of [appellant's] testimony in that regard is that he's been stopped a substantial number of times and has never had conflict with the officers, kind of painting this as a su[i] gener[i]s kind of experience, so I think if there are circumstances that tend to impeach that version of events, I think it's fair to get into it."

On cross, the prosecutor asked, "Now isn't it true, when you say you don't look for altercations, that's not really true. You do look for altercations." Appellant responded, "Oh bullshit."

The prosecutor asked, "You were stopped in Anaheim in '97, and you threw a citation book at the officer after he asked you to sign the citation. Do you remember that?"

Appellant replied, "That's a goddamn lie" and "bullshit." Appellant stated that an "idiot attacked me down there years ago" and "I did not throw anything at anybody and . . . I resent you sitting there telling lies, trying to impugn my

dignity. . ."

Appellant was offered the opportunity to review the 1997 police report and refused to answer any further questions. Rather than cite appellant for contempt, the trial court directed the prosecutor to move on to a different subject. Appellant was warned that "the jury can take it as it will. . . . [] . . . It will be the jury's determination as to whether or not they make any weight of what you said." The jury was later instructed that it determining witness credibility, it could consider whether the witness "has engaged in other conduct that reflects on his believability." (CALCRIM 226.)

Evidence Code section 1101

Citing Evidence Code section 1101, subdivision (a), appellant argues that the cross-examination was improper and elicited inadmissible evidence to show criminal disposition. The restriction on prior bad acts evidence does not apply where the evidence is offered to attack the credibility of a witness. (People v. Kennedy (2005) 36 Cal.4th 595, 620; People v. Humiston (1993) 20 Cal.App.4th 460, 479.) Nor does it apply where the evidence is offered to negate a defendant's claim of self-defense or to prove a disputed issue such as intent. (Evid. Code,  1101, subd. (b); People v. Wells (1949) 33 Cal.2d 330, 340-341 [prior altercations with prison guards]; People v. Simon (1986) 184 Cal.App.3d 125, 129.)

Prior bad acts evidence may be received to impeach a defendant and to show that defendant's testimony is untruthful. (Evid. Code,  1101, subd. (c); People v. Millwee (1998) 18 Cal.4th 96, 131.) "When a defendant voluntarily testifies, the district attorney may fully amplify his testimony by inquiring into the facts and circumstances surrounding his assertions, or by introducing evidence through cross-examination which explains or refutes his statements or the inferences which may necessarily be drawn from them. [Citation.]" (People v. Cooper (1991) 53 Cal.3d 771, 822.)

A defendant who elects to testify has no right to cloak himself in a false aura of credibility. (Evid. Code,  1101, subd. (c); see e.g., People v. Mayfield (1997) 14 Cal.4th 668, 754-755.) This is especially the case where a defendant asserts that he is peaceful and has never committed an offense of the kind charged. (E.g., People v. Westek (1948) 31 Cal.2d 469, 476-480.)

Appellant testified that he was not looking for an altercation, that he had been questioned at "dozens of traffic stops," and that "I'm never looking for an altercation." The fair import of the testimony was that appellant was peaceful and never "looked for" or initiated altercations at traffic stops. The trial court did not abuse its discretion in permitting the prosecution to question appellant about the 1997 altercation. (Evid. Code,  352; People v. Raley (1992) 2 Cal.4th 870, 912; People v. Lang (1989) 49 Cal.3d 991, 1017-1018.)

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.

Frank J. Ochoa, Judge

Superior Court County of Santa Barbara

______________________________

Larry S. Dushkes; Dushkes Law Corporation, for Appellant.

Edmund G. Brown, Jr., Attorney General, George Williamson, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General, Susan D. Martynec, Supervising Deputy Attorney General, Marc E. Turchin, Deputy Attorney General, for Plaintiff and Respondent.

Publication Courtesy of California lawyer directory.

Analysis and review provided by Escondido Property line attorney.

^[1]All statutory references are to the Penal Code unless otherwise stated.

^[2]The prosecutor made the following offer of proof: "In '97, . . . on Katella Avenue in the Anaheim area, [appellant] was stopped for a traffic violation, and after being stopped, he was asked on a couple of different occasions to sit back down in his vehicle He didn't comply. He was told over and over again he was going to get a citation. He was saying, like, 'I'm out of here, I'm leaving.' The officer told him he better not leave. When he was written the citation, asked to sign it, he took the citation, essentially tossed it at the officer. Subsequently, apparently he didn't comply with the officer's orders and he was arrested and booked for various charges."