P. v. Kattan

Filed 10/19/06 P. v. Kattan CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 EIGHT

APPEAL from the judgment of the Superior Court of Los Angeles County. Martin Herscovitz, Judge. Affirmed.

The Beck Law Firm and Thomas E. Beck for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Herbert S. Tetef and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

________________________

Oren Kattan appeals from his conviction for misdemeanor obstruction or delay of a peace officer. We affirm.

FACTS AND PROCEDURAL HISTORY

The mother of appellant Oren Kattan called 911 from her home to complain appellant had threatened and hit her. Two Los Angeles police officers responded. Appellant’s mother met them outside and told them appellant was “inside wrecking things.” She also told them he had a BB-gun. The officers entered the house and went to appellant’s room. Announcing themselves, they knocked on his door and asked him to come out of his room. He replied, “I know it’s the police. I’m not going to open the door.”[1] Appellant’s defiance was short-lived, however, because despite continuing to assert the officers had no right to be inside the house, he opened his door partway.

The officers told appellant they needed to talk to him because they were investigating his mother’s 911 call. Because appellant was agitated, one of the officers placed his hand on appellant’s wrist and asked him to calm down. Appellant continued to object to the officers’ presence, shouting, “You’re going to have to use your batons and pepper sprays to make me talk to you.” At that point, the officers told appellant to turn around and place his hands behind his back. Instead of complying, appellant moved from his doorway out into the hallway and placed his back against a wall. As he moved, both officers grabbed his arms. Appellant resisted their attempts to control him and flung up his arms, partially breaking free. As the three of them moved, they tripped over furniture and fell in a pile onto the floor. Appellant continued to struggle on the ground and began kicking the officers. Unable to subdue appellant, one of the officers sprayed him with pepper spray, temporarily incapacitating him. The officers then flipped him over onto his stomach. Still struggling, appellant managed to get up on his knees.

By this time, other police officers were rushing into the house in response to the first two officers’ call for help. The new arrivals joined in the fight, and one of the officers punched appellant three times on the side of the face. Augmented by the assisting officers, the police sufficiently outnumbered appellant to finally overcome his resistance and handcuff him. Both appellant and several officers suffered injuries during the fight, including cuts and bruises.

The People charged appellant with resisting an executive officer and misdemeanor resisting, obstructing, or delaying a peace officer. Appellant pleaded not guilty. A jury convicted appellant of the misdemeanor resisting or obstructing charge, but deadlocked on resisting an executive officer, which the court then dismissed. The court placed appellant on three years summary probation. This appeal followed.

DISCUSSION

1. Court Properly Refused Two of Appellant’s Special Jury Instructions

Appellant contends his failure to respond speedily to the officers in the early stages of their encounter in his room was not resisting, obstructing, or delaying a peace officer. He asserts the evidence showed “he exited [his room] slowly and followed their orders slowly” but he nevertheless complied. In support of his contention, he cites People v. Quiroga (1993) 16 Cal.App.4th 961, which noted “it surely cannot be supposed that [the statute outlawing resisting, obstructing, or delaying a peace officer] criminalizes a person’s failure to respond with alacrity to police orders. Moreover, [the defendant] possessed the right under the First Amendment to dispute [the officer’s] actions.” (Id. at p. 966; see also People v. Wetzel (1974) 11 Cal.3d 104, 106-108 [not interference with officer to mistakenly insist police present search warrant to enter home where person offered no physical resistance].)

Appellant argues the court erred in refusing his special jury instructions that “slow compliance” with an officer’s commands and refusing to answer an officer’s questions are not unlawful interference with the officer’s performance of his duties. On the first point, he offered a special jury instruction which stated:

“The terms ‘obstruct’ and ‘delay’ as used in Penal Code section 148(a) mean an unprivileged physical interruption of an officer’s lawful duties. Persons may verbally delay, obstruct or intrude upon the officer’s time without violating the law. Verbal interjections, profanity, as well as some refusals to comply with an officer’s lawful orders do not necessarily mean the law was violated. The defendant’s actions must be intended to obstruct or delay the peace officer in the lawful discharge of his duties as that phrase has been explained in other instructions.”

On the second point, he offered a special instruction that stated:

“A person being questioned as a suspect in a police investigation is not required to answer questions. The refusal to cooperate is a right guaranteed by the Fourth Amendment and cannot be the basis of an arrest even if it obstructs, delays, or interferes with the duties of the officer.”

The jury not having had the guidance of these instructions, appellant contends the jury may have wrongfully convicted him solely for not enthusiastically complying with the officers’ orders or answering their questions.[2]

We find no error. As the trial court accurately noted, the proposed instructions contradicted appellant’s defense that he initially cooperated with the officers, resorting to passive physical resistance only to protect himself from their unprovoked beating. (People v. Salas (2006) 37 Cal.4th 967, 982 [no duty to offer instruction inconsistent with defense].) Appellant testified in his defense that he told the officers he had phoned his father upon their arrival, and did not want to talk to them until his father returned home. He testified he obeyed their order to come out of his room, and did so with his arms outstretched and his palms up to show he posed no threat. According to him, the officers then without provocation tried to push him to the floor. When he remained standing, they knocked him to the ground and began to beat him. Instead of fighting them, he testified he assumed a defensive posture to protect himself from the officers’ kicks and blows. The proposed special instructions, which permit a defendant some leeway to figuratively drag his heels in an encounter with police, are thus at odds with his testimony of how he behaved.

In any event, even if the instructions had been consistent with appellant’s defense, the court’s failure to give them was harmless. Appellant’s defense was the officers used unreasonable force against him. The trial’s outcome thus largely turned on whether appellant was cooperating with the officers when they assaulted him, or whether he physically resisted them, requiring them to forcefully subdue him. In keeping with appellant’s defense theory, the court instructed the jury that obstructing an officer means impeding him in the lawful performance of his duties. The court also instructed the jury that an officer’s unreasonable or excessive force permits a defendant to use physical force to protect himself. Moreover, the prosecutor’s closing argument emphasized appellant’s guilt based upon his belligerency toward the officers after he stepped outside of his bedroom, not his slow and reluctant response and refusal to answer the officers’ questions when he first opened his door. In light of those instructions, we perceive no rational basis on which the jury might have acquitted appellant in the belief he was protecting himself during the physical struggle from an unlawful beating, yet, but for the special instructions, mistakenly convicted him of obstruction for his “bad attitude.”

2. Pretrial Discovery of Use of Force Reports

Apparently by way of a Pitchess motion, appellant received from the Los Angeles Police Department complaints of excessive force from the personnel files of three officers: the two officers who first responded, and the officer who punched appellant on the side of his face. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531.) In addition to the excessive force complaints, appellant moved under Pitchess for every “use of force report” (plus any connected arrest reports and probable cause declarations) the three officers had filed the previous five years. Finding that appellant’s request was overbroad, the court ruled that appellant’s moving papers did not establish good cause for production of the reports. The court therefore did not order the police department to produce for the court’s in camera review any use of force report (as opposed to excessive force complaints, which the department had previously given to appellant).[3]

We review denial of a Pitchess motion for abuse of discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827; Pitchess, supra, 11 Cal.3d at p. 534.) Noting that good cause for in camera review is a low threshold, appellant contends he met that standard for the reports. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 [in camera review of Pitchess material requires only “that the scenario of alleged officer misconduct could or might have occurred”].) Appellant’s theory was the officers beat him for “contempt of cop,” which the police then tried to cover up by arresting him for obstructing them in their duties. His defense counsel told the court that he had successfully found in representing other defendants that use of force reports could lead to third-party witnesses who could testify to an officer’s propensity to violence. Defense counsel’s declaration stated:

“I have personally examined many hundred ‘confidential’ peace officer personnel records, including LAPD Use of Force investigation reports, the connecting crime and arrest reports and the connecting Probable Cause Declarations. I have successfully used these records to locate witnesses adverse to the prosecution and to impeach prosecution witnesses.”

We conclude the court did not abuse its discretion in denying the motion. Given appellant’s theory of why the use of force reports were relevant, his request for all such reports filed by the three officers was, as the trial court found, overbroad. It amounted to a fishing expedition because the request did not link police beatings to arrests covering up the beatings. Appellant’s request instead sought all reports of use of force, whether or not the officers beat someone, and whether or not they then arrested the beaten person. Considering that much of a peace officer’s work involves “use of force“ in some fashion or another, to allow discovery of use of force reports routinely would impose significant and burdensome costs.[4] If appellant’s request had instead been tailored to the defense theory here--unlawful beating and attendant arrest--the question before us would be closer, giving appellant a stronger argument that the trial court erred in refusing an in camera inspection. We need not, however, answer that question today.

DISCUSSION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

We concur:

COOPER, P. J.

BOLAND, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line Lawyers.

[1] Appellant had seen the officers enter the house on the home’s closed circuit video system. The system had two cameras, one inside the house and the other outside. The inside camera, which might possibly have captured some events relevant to these proceedings, did not have a recording feature.

[2] To substantiate his claim of jury error, appellant cites two jurors’ declarations filed in support of his motion for new trial. In their declarations, the jurors state they would not have voted to convict appellant of obstructing or interfering with the officers if the court had instructed them with appellant’s special instructions. Their declarations are legally incompetent because one may not impeach a jury verdict by attacking a juror’s reasoning process. (Evid. Code, § 1150, subd. (a).) We thus disregard the declarations.

[3] Appellant and the trial court disagreed over the proper procedure for requesting the use of force reports. Appellant originally sought them by a subpoena duces tecum, but the court quashed the subpoena and directed appellant to file a Pitchess motion to request them. The court reasoned Pitchess applied because the police department used the reports in officer training, discipline, and performance evaluations, making them personnel records. While disagreeing with the court, appellant acquiesced and moved under Pitchess. Neither appellant nor the Attorney General has discussed the correctness of the court’s conclusion that Pitchess applied to the use of force reports, and the Los Angeles city attorney who ordinarily represents the city’s police department in Pitchess hearings, is not involved in this appeal. Hence, we do not address the validity of the trial court’s ruling that a Pitchess motion was the proper vehicle for getting the use of force reports. Instead, we address the merits of appellant’s request for documents and assume the procedure used was correct.

[4] The record containing department regulations governing use of force demonstrates the overbreadth of the delivery request: “245.05 REPORTABLE USE OF FORCE INCIDENT -- DEFINED. A reportable use of force incident is defined as an incident in which any on-duty Department employee, or off-duty employee whose occupation as a Department employee is a factor, uses a non-lethal control device or any physical force to: Compel a person to comply with the employee’s directions; or, Overcome resistance by a suspect during an arrest or a detention; or, Defend any person from an aggressive action by a suspect.” (Manual of the Los Angeles Police Department, 1994, Vol. 4, p. 342.) Excluded from its definition, however, is an officer’s use of “firm grip control,” or force such as a wrist lock needed to overcome passive resistance due to physical disability or intoxication, so long as the officer does not injure the suspect.