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P. v. Lopez

P. v. Lopez
10:30:2006

P. v. Lopez










Filed 10/17/06 P. v. Lopez CA2/4






NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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










THE PEOPLE,


Plaintiff and Respondent,


v.


DARRELL LEE LOPEZ,


Defendant and Appellant.



B183244


(Los Angeles County


Super. Ct. No. BA265687)



APPEAL from a judgment of the Superior Court of Los Angeles County, Carol H. Rehm, Judge. Reversed.


Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.


Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte and Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.


________________________________


Darrell Lee Lopez appeals from his convictions of misdemeanor battery and misdemeanor assault upon a peace officer arising from an altercation in the Los Angeles County Men’s Central Jail. He argues, and respondent concedes, that the trial court erred in failing to instruct the jury sua sponte on the defense theory that the officers involved used excessive force. We reverse the conviction because of the instructional error. For the guidance of the court on remand, we reach an additional evidentiary issue and conclude that the trial court erred in admitting evidence of an unrelated uncharged incident that occurred in 2002.


FACTUAL AND PROCEDURAL SUMMARY


Appellant was an inmate at the Los Angeles County Men’s Central Jail in 2004 when Deputy Sheriff David Jimenez saw him in his cell, kicking and punching a mattress which had been tied to a bunk bed pole with torn bed sheets. When Deputy Jimenez and his partner, Deputy Serna, entered the cell to remove the mattress, an altercation ensued. Eventually five deputies were involved in subduing appellant. Two deputies received minor injuries.


Appellant was charged with assault and battery upon Deputy Jimenez (Pen. Code, §§ 245, subd. (c),[1] 243, subd. (c)(2) [counts 1 and 2 respectively]) and with assault and battery upon Deputy Elmer Jordan (§§ 245, subd. (c), 243, subd. (c)(2) [counts 3 and 4 respectively]). It was alleged as to all four counts that appellant had served two prior prison terms (§ 667.5, subd. (b)).


The defense theory at trial was that the deputies used excessive force. Although appellant had taken a vow of silence eight years before, he testified in his own defense by giving written responses which were read into the record by a certified law clerk from the Public Defender. According to appellant, when he asked one of the deputies if he could get the mattress, the other deputies attacked him.


The jury acquitted appellant of assault or battery upon Deputy Jordan, finding him guilty of the lesser charges of misdemeanor assault and misdemeanor battery on a peace officer (§§ 241, subd. (b), 243, subd. (b)). The counts involving Deputy Jimenez were dismissed after the jury was unable to reach a verdict. Appellant was sentenced to county jail for a term of 365 days on the battery charge. He appeals from the judgment of conviction.


DISCUSSION


I


Appellant contends, and respondent concedes, that the trial court had a sua sponte duty to instruct the jury with CALJIC Nos. 9.28 and 9.29 in support of the defense theory that the officers involved in the altercation used excessive force. CALJIC No. 9.28 informs the jury that a person may use reasonable force to protect himself or herself from excessive police force: “A peace officer is not permitted to use unreasonable or excessive force [in making or attempting to make an arrest] [in detaining or attempting to detain a person for questioning]. If an officer does use unreasonable or excessive force [in making or attempting to make an arrest] [in detaining or attempting to detain a person for questioning,] the person being [arrested] [detained] may lawfully use reasonable force to protect himself. Thus, if you find that the officer used unreasonable or excessive force [in making or attempting to make the arrest] [in making or attempting to make the detention] in question, and that the defendant used only reasonable force to protect himself, the defendant is not guilty of the crime charged [in Count _______] [or of any lesser included offense].”


CALJIC No. 9.29 states that a peace officer is not engaged in performing his duties if he uses excessive force in making a detention, which raises a reasonable doubt if an element of the crime charged is that the officer was engaged in the performance of his duties: “In a prosecution for violation of Penal Code § _______, the People have the burden of proving beyond a reasonable doubt that the peace officer was engaged in the performance of, [his] [her] duties. A peace officer is not engaged in the performance of [his] [her] duties if [he] [she] [makes or attempts to make an unlawful [arrest] [detention]] [or] [uses unreasonable or excessive force in making or attempting to make the [arrest] [detention]]. If you have a reasonable doubt that the peace officer was [making or attempting to make a lawful [arrest] [detention]] or [using reasonable force in making or attempting to make the [arrest] [detention]] and thus a reasonable doubt that the officer was engaged in the performance of [his] [her] duties, you must find the defendant not guilty of any crime which includes an element that the peace officer was engaged in the performance of [his] [her] duties.”


Here, appellant was convicted of misdemeanor assault and misdemeanor battery upon a peace officer under sections 241, subdivision (b) and 243, subdivision (b) respectively. An element of each offense is that the peace officer was engaged in the performance of his duties at the time the assault occurred. (CALJIC Nos. 16.100, 16.101.)


In criminal cases, the trial court has a sua sponte duty to instruct on the general principles of law relevant to the issues raised by the evidence. (People v. Valdez (2004) 32 Cal.4th 73, 115; People v. Breverman (1998) 19 Cal.4th 142, 154.) “In the absence of a request for a particular instruction, a trial court’s obligation to instruct on a particular defense arises ‘”only if [1] it appears that the defendant is relying on such a defense, or [2] if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.”’ (People v. Barton (1995) 12 Cal.4th 186, 195 [47 Cal.Rptr.2d 569, 906 P.2d 531]; see also People v. Maury (2003) 30 Cal.4th 342, 424 [133 Cal.Rptr.2d 561, 68 P.3d 1].)” (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.)


Both prongs of the test are satisfied here. In closing argument, defense counsel argued that the sheriff’s deputies trumped up the charges against appellant to justify their use of excessive force in the altercation. She also argued that the deputies started hitting appellant when he tried to take the mattress back to his cell. Appellant’s attorney continued: “Mr. Lopez isn’t required to take punches in the face. . . . You don’t just have to sit there and take it while people are beating on you. You are allowed to try and move away and get away from the beating and that is what makes sense.” She also argued: “It is not okay to do what [the deputies] did. It is not okay to try to file charges against him to justify what they did to him. It is just not okay.”


In addition, appellant testified that the officers attacked him. “In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether ‘there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .’” (People v. Salas (2006) 37 Cal.4th 967, 982, quoting People v. Jones (2003) 112 Cal.App.4th 341, 351.)


The Supreme Court has not yet determined what test of prejudice applies to the failure to instruct on an affirmative defense. (People v. Salas, supra, 37 Cal.4th at p. 984.) The Salas court cited People v. Simon (1995) 9 Cal.4th 493. In Simon, the court held that failure to instruct on defendant’s burden of proof on a defense to a charge of selling unqualified securities was prejudicial. The court applied the test of prejudice formulated in People v. Watson (1956) 46 Cal.2d 818, 836-837 and concluded that it was “reasonably probable that an outcome more favorable to appellant might have been reached had the jury been properly instructed that appellant’s burden was only to raise a reasonable doubt that the securities he sold were not exempt.” (People v. Simon, supra, 9 Cal.4th at p. 506.) Since reversal was required under the Watson standard, the court did not decide whether the instructional error was of federal constitutional dimension, necessitating application of the Chapman test.[2] (Id. at p. 506, fn. 11.)


The Attorney General’s concession is appropriate here. Even under the less demanding Watson standard, the error requires reversal. Deputy Jimenez testified on direct that appellant rushed out of the cell toward him, tackled him, wrapped his arms around him, and pinned him against the wall. According to Jimenez, appellant continued to lunge at him. But on cross-examination, defense counsel established that the supplemental report Jimenez authored did not say that Jimenez hit the wall, that appellant tackled or bear hugged him, lunged at him more than once, or wrapped his arms around him. Jimenez testified that he punched appellant in the face four or five times during the altercation. Deputy Jordan testified that appellant rushed out of the cell and tackled Jimenez, sending Jimenez into the wall. On cross-examination, Jordan said that the report he wrote after the incident does not say that Jimenez hit the wall when appellant rushed from the cell.


The jury was unable to reach a verdict as to the charges involving Deputy Jimenez, and convicted appellant only of lesser misdemeanor charges as to Deputy Jordan. Given the conflicting testimony and the jury verdicts, it is reasonably probable that the jury would have rendered a verdict more favorable to appellant if it had been given CALJIC Nos. 9.28 and 9.29 on excessive force. Hence, the convictions for violation of sections 241, subdivision (b) and 243, subdivision (b) must be reversed. In light of this conclusion, we do not address appellant’s alternative argument that the conviction for assault on a peace officer must be reversed because it is a lesser included offense of the conviction for battery on a peace officer.


II


For the guidance of the trial court on remand, we reach an evidentiary issue, which we review for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.)


Over objection, Patrick Toban was allowed to testify under Evidence Code section 1101, subdivision (b) about an incident with defendant that occurred in a bar in February 2002. Toban and a friend were playing pool at one table, while defendant and two women were playing pool at another. When Toban finished his game, defendant approached and handed him a piece of paper with the words: “Respect You. Are you ready?” Toban thought this meant defendant wanted to play pool with him. He gave the paper back to defendant and asked whether he wanted to play pool. Defendant shook his head “no” and extended his hand. Toban thought defendant wanted to shake hands, and extended his own hand. Defendant reached back and slapped Toban on the left side of his face. Toban went behind the bar and told defendant to leave because he was calling the police. When Toban picked up the telephone, defendant left the bar. Toban had a red mark across his face and neck and a small cut on the corner of his mouth.


Before the jury heard Toban’s testimony, it was instructed that the evidence could not be considered to prove defendant is a person of bad character, or that he has a disposition to commit crimes. The evidence was to be considered only for the “limited purpose of determining if it tends to show the following: characteristic, method, plan or scheme in the commission of criminal acts similar to the method, plan, or scheme used in the commission of the offense in this case, which would further tend to show a clear connection between the other offense and the one of which the defendant is accused, so that it may be inferred that if the defendant committed the other offense, defendant also committed the crimes charged in this case.” The jury instructions given before deliberations included the pattern instructions on evidence of other crimes. (CALJIC Nos. 2.50 and 2.50.1.)


Appellant argues the trial court erred in admitting Toban’s testimony of appellant’s prior uncharged conduct. The basic rule in California is that evidence of character or specific instances of conduct is inadmissible to prove conduct on a specified occasion. (Evid. Code § 1101, subd. (a).) Evidence Code section 1101, subdivision (b) provides an exception to allow evidence of prior uncharged misconduct when relevant to establish some fact other than the person’s character or disposition, such as “such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . .”


“Evidence of uncharged crimes is admissible to prove identity, common design or plan, or intent only if the charged and uncharged crimes are sufficiently similar to support a rational inference of identity, common design or plan, or intent. (People v. Ewoldt (1994) 7 Cal.4th 380, 402-403 [27 Cal.Rptr.2d 646, 867 P.2d 757].)” (People v. Kipp, supra, 18 Cal.4th at p. 369.) The Supreme Court has required different levels of similarity between the present crime and the uncharged misconduct, depending upon the purpose for which the uncharged evidence is offered. “‘A lesser degree of similarity is required to establish relevance on the issue of common design or plan. (People v. Ewoldt, supra, 7 Cal.4th 380, 402.) For this purpose, “the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual.” (Id., at p. 403.)’” (People v. Carter (2005) 36 Cal.4th 1114, 1149.)


When the uncharged misconduct is admitted to establish intent, the lowest threshold is required. “‘The least degree of similarity is required to establish relevance on the issue of intent. (People v. Ewoldt, supra, 7 Cal.4th 380, 402.) For this purpose, the uncharged crimes need only be “sufficiently similar [to the charged offenses] to support the inference that the defendant ‘”probably harbor[ed] the same intent in each instance.” [Citations.]”’ (Ibid.)’ (People v. Kipp, supra, 18 Cal.4th 349, 371.)” (People v. Carter, supra, 36 Cal.4th 1114, 1149.)


The Supreme Court has identified an additional requirement for the admissibility of evidence of uncharged crimes: “‘The probative value of the uncharged offense must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. (People v. Ewoldt, supra, 7 Cal.4th 380, 404-405.)’” (People v. Carter, supra, 36 Cal.4th at p. 1149, quoting People v. Kipp, supra, 18 Cal.4th at p. 371.)


Here, there was no identity issue. The prosecutor argued the evidence of the Toban incident was relevant to demonstrate that appellant feigned cooperation, then attacked the other person. She argued this was enough to show intent: “that being the general intent to commit the assault and battery and common plan, scheme or design, particularly as to the particular behavior pattern which the defendant exhibits.”


Defense counsel argued that the incidents did not demonstrate a common plan. In the Toban incident, appellant gave Toban a note, then held out his hand, then slapped him. The present jail altercation did not involve any note or any attempt by appellant to hold out his hand to the deputies. In addition, defense counsel argued that the crimes charged are general intent to which evidence of the Toban incident was not probative.


The trial court found “that the unique and distinctive technique utilized by Mr. Lopez, that is, to act in a manner that would lure the particular victim into a position of vulnerability before attacking is exhibited in both his actions with the sheriff’s deputies as well as in his actions with the other gentleman, Mr. Toban. It is the same distinctive technique. It is relevant to establish . . . general intent to violate the law, his intent to put his victim in a particularly vulnerable position before he acts against them and also to establish that this is his common scheme or plan in committing those acts.”


We disagree with the trial court’s analysis. There was not a sufficient degree of similarity in the two incidents to allow admission of the Toban incident under Evidence Code section 1101, subdivision (b). The Toban incident did not have substantial probative value to the crimes charged here, and evidence of it should not have been admitted.


DISPOSITION


The judgment of conviction is reversed and the case is remanded for new trial.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


EPSTEIN, P. J.


We concur:


WILLHITE, J.


SUZUKAWA, J.


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


[2] See Chapman v. California (1967) 386 U.S. 18, 24.





Description Defendant appeals from his convictions of misdemeanor battery and misdemeanor assault upon a peace officer arising from an altercation in the Los Angeles County Men’s Central Jail. Defendant argues that the trial court erred in failing to instruct the jury sua sponte on the defense theory that the officers involved used excessive force. Court reversed the conviction because of the instructional error.

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