P. v. Overson

Filed 8/23/06 P. v. Overson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Frederick Overson appeals a judgment after his conviction of assault by means likely to produce great bodily harm (Pen. Code,[1] § 245, subd. (a)(1)), count 1, misdemeanor false imprisonment (§ 236), count 2, and resisting an executive officer in the performance of his duty (§ 69), count 3. Overson admitted the allegations of an amended information that he had suffered five prior convictions for serious or violent felonies within the meaning of the three strikes law. (§§ 667, subds. (d) & (e); 1170.12, subds. (b) & (c).) The court imposed a 25-year-to-life sentence on count 1, a concurrent 25-year-to-life sentence on count 3, and a concurrent six-month jail sentence on count 2.

We conclude 1) the trial court did not err by denying Overson's Pitchess motion, 2) Overson has not shown ineffective assistance of counsel, 3) shackling Overson during trial was not reversible error, 4) the court did not abuse its discretion by excluding a defense surrebuttal witness and 5) the court properly instructed the jury on count 3. We vacate the sentences and remand for resentencing because the sentences on two of the three counts must be stayed pursuant to section 654. In all other respects the judgment is affirmed.

FACTS

Scott Timko, an Atascadero State Hospital (ASH) police officer, was assisting ASH staff who were trying to restrain an unruly patient. He tried to prevent Overson and other patients, who were agitated by this incident, from interfering with staff.

Overson walked towards the area where staff were trying to restrain the patient. Timko ordered him to stop three times. Overson ignored his commands. Timko grabbed Overson's arm and wrist to stop him.

Overson put his left arm around Timko's neck and "squeezed so hard" that Timko could not breathe. He dragged Timko 10 to 12 feet. As Overson held him in a choke hold, other patients attacked Timko. Timko testified that the only way he could get out of Overson's grip "was using my left fist to strike him in the face."

Haraint Mark Loussararian, an ASH psychiatric technician, testified that there are several procedures ASH staff use to deal with recalcitrant patients, including talking with them and medicating them. He said "hands-on physical restraint is the last resort."

Overson testified, someone "grabbed me around the waist" so "I clasped my hands together" and "latched onto him. . . . [W]e were stumbling and falling . . . . I looked down and saw it was an officer I had ahold [sic] of . . . . I immediately splayed my fingers out to let everyone know I was being non-violent . . . . [¶] . . . [¶] I never had any intent to hurt anybody." On cross-examination, Overson said he walked towards the area where staff were restraining the other patient. He intended "to interfere" with the staff's efforts to subdue that person and force them to restrain him instead.

Excluding a Defense Surrebuttal Witness

On surrebuttal, Overson's counsel wanted to call Jesus Gomez, an ASH psychiatric technician. He offered to prove Gomez would testify about the ASH "operating manual" to show that the "use of force is the last resort." The court excluded the evidence finding it was cumulative.

The Pitchess Motion

Overson filed a Pitchess motion (People v. Pitchess (1974) 11 Cal.3d 531) to discover records in possession of ASH, the district attorney and the Attorney General about misconduct and complaints of excessive force against officer Timko. He filed an application to shorten time because the motion gave less notice than required by statute. In a declaration to support the Pitchess motion, his counsel stated: "A substantial issue in the trial of this case may be the fabrication of charges and/or evidence, false arrest . . . due to dishonesty, excessive and illegal use of force . . . ." (Italics added.) The declaration was not made under oath.

The Attorney General filed an opposition, claiming the declaration contained no facts about Timko using excessive force, "but only vague statements of how the information may be used at trial." At the hearing, the district attorney said the motion was untimely. Overson's counsel said he filed the motion based on information from a witness who could testify at trial. The court denied the Pitchess motion finding it was untimely, unreasonably delayed and there was no good cause to shorten time.

The Restraints

The prosecutor requested the court to place Overson in restraints because he had been involved in a riot at ASH and did not respond to peace officers' request to desist. He said they were a security risk. The court ruled that Overson would wear leg irons during trial. It said there would be a "privacy panel" at the defense table so jurors could not see the restraints. The hallway windows would be covered and jurors would wait outside as the defendants entered to prevent jurors from seeing the restraints.

Sentencing

At the sentencing hearing, the prosecutor conceded that counts 1, 2 and 3 constituted one crime. The court ruled that the three counts are "essentially the same transaction" under section 654.

DISCUSSION

I. The Pitchess Motion

Overson contends the trial court erred by denying his Pitchess motion. We disagree. A defendant must give written notice of the hearing on a Pitchess motion at least 16 court days before that hearing. (Evid. Code, § 1043, subd. (a); Code Civ. Proc., § 1005, subd. (b).) On November 12, 2004, Overson's counsel personally served copies of the motion on ASH and the district attorney's office. The hearing date was December 3, 2004. That was less than 16 court days.

Overson claimed the Attorney General also possessed records discoverable by this motion. He served the Attorney General notice by mail on November 12 for the December 3 hearing. He did not provide timely notice. (Code Civ. Proc., § 1005, subd. (b) [service by mail adds five more days to the 16-day notice period].)

Overson claims the court erred by not finding good cause to shorten time. We disagree. His trial counsel filed an application for an order shortening time, but did not attach a declaration. The application must be supported by a declaration showing good cause. (Cal. Rules of Court, rule 317 (b).)

Moreover, the court found an unreasonable delay. It said Overson's counsel was appointed "three months ago" and the allegation that Overson "applied force to an officer" has not changed. "It would seem pretty obvious that a potential issue would be whether or not the officer . . . had complaints of . . . unjustified force . . . ." "[I]t is an issue that should have been addressed months ago, not within ten days of a trial date." Overson has not shown an abuse of discretion.

Overson claims the court should have decided the motion on the merits because the Attorney General did not raise a timeliness issue. But the district attorney did. On the merits Overson has not shown a reasonable likelihood that he would have prevailed. A Pitchess motion must include affidavits showing good cause for the discovery. (Evid. Code, § 1043, subd. (b)(3).) His trial counsel signed a document labeled, "declaration." But it did not qualify as one as it did not contain a statement that it was made under penalty of perjury. (Code Civ. Proc., § 116.130, subd. (i).) Moreover, his unsworn allegations were conclusory. The declaration was vague and failed to set forth "a specific factual scenario" to support good cause for discovery. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85.) The allegations must be stated with "'specificity' to preclude the possibility of a defendant simply casting about for any information which might be helpful . . . . [Citation.]" (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 395.)

II. Ineffective Assistance of Counsel

Overson claims his trial counsel was ineffective for not timely filing the Pitchess motion. For ineffective assistance, he must show his counsel's performance was inadequate and that it was prejudicial to his case. (Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Quinn (2001) 86 Cal.App.4th 1290, 1295.) The Attorney General claims Overson is not able to meet the second requirement. He notes that Overson's counsel filed the motion because of information he received from a witness he would call at trial. But counsel did not call the witness because he concluded the witness was not credible. On this record, we may not conclude there was ineffective assistance. Where the record is inadequate to show counsel's reasons for his decisions or what evidence he could have developed, the proper procedure is to raise these claims in a habeas proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)

III. Shackling Overson During Trial

Overson contends the court committed reversible error by shackling him during the jury trial without finding that there was a manifest need for such restraints. We disagree. "'[A] defendant cannot be subjected to physical restraints . . . while in the jury's presence, unless there is a showing of a manifest need for such restraints. . . .' [Citation.]" (People v. Slaughter (2002) 27 Cal.4th 1187, 1213.) Here the court could reasonably infer there was a need. Overson had recently and violently attacked a police officer while he was confined at ASH. Officer Timko suffered injuries and had great difficultly in subduing Overson. But even if the trial court erred, the result does not change.

"'We have consistently found any unjustified or unadmonished shackling harmless where there was no evidence it was seen by the jury. . . .' [Citation.]" (People v. Slaughter, supra, 27 Cal.4th at p. 1213.) Here the trial court took measures to prevent the jury from seeing the restraints. The record does not reflect that any juror was aware of them. "We cannot assume from a silent record that the jury viewed defendant's restraints." (People v. Medina (1995) 11 Cal.4th 694, 732.)

IV. Excluding a Defense Surrebuttal Witness

Overson contends the trial court erred by excluding Gomez's testimony. We disagree. We review rulings on admissibility of evidence to determine if there was an abuse of discretion. (People v. Sassounian (1986) 182 Cal.App.3d 361, 402.) A court properly excludes cumulative evidence. (People v. Mincey (1992) 2 Cal.4th 408, 439.)

Here defense counsel offered to prove that Gomez would testify that under ASH procedures the use of force by staff is a last resort. The trial court correctly found this evidence was cumulative. Loussararian had already testified that under ASH procedures, "hands-on physical restraint is the last resort." There was no abuse of discretion. Moreover, Overson has not shown prejudice. Had Gomez testified consistent with Overson's offer of proof, he would be repeating Loussararian's testimony.

V. Jury Instructions on Count 3

Overson contends the trial court erred by giving inadequate jury instructions on count 3, resisting an executive officer in the performance of his duty. (§ 69.) We disagree.

Overson notes that the court declined to give CALJIC No. 16.110 [performing or discharging duties of officer-- burden on proof], an instruction requested by the defense. It states, in relevant part: "In a prosecution for violation of [ _____ ], the People have the burden of proving beyond a reasonable doubt that the peace officer was [engaged in the performance of [his/her] duties] [or] [discharging or attempting to discharge a duty of [his/her] office]. [¶] A peace officer is not [engaged in the performance of [his/her] duties] [or] [discharging or attempting to discharge a duty of [his/her] office] 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]]." (Ibid.)

The court gave CALJIC No. 7.50 which states, in relevant part: "Defendants are accused in Count Three of having violated section 69 of the Penal Code, a crime. [¶] . . . . [¶] In order to prove this crime, each of the following elements must be proved: [¶] 1. A person willfully and unlawfully attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and [¶] 2. The attempt was accomplished by means of physical violence." (Italics added.)

The court added a special instruction, which stated in relevant part: "A peace officer at Atascadero State Hospital who is engaged in crowd control may use reasonable force in exercising crowd control. [¶] The officer need not retreat or desist from his efforts by reason of the resistance of threatened resistance by a patient. [¶] "Where such officer is engaged in a lawful exercise of crowd control, and a patient has knowledge, or by the exercise of reasonable care should have knowledge, [that] he is a subject of the officer's effort at crowd control, it is the duty of such patient to refrain from using force upon the officer unless unreasonable or excessive force is being used by the officer. [¶] If an officer uses unreasonable or excessive force while engaged in crowd control at the hospital, the patient who is the subject of the officer's effort at crowd control may lawfully use reasonable force to protect himself. [¶] If you find that the officer used unreasonable or excessive force while engaged in crowd control, and the defendant used only reasonable force to protect himself, then the defendant is not guilty of the offenses charged or the lesser offenses thereto." (Italics added.)

Overson claims the court erred by not selecting CALJIC No. 16.110. But CALJIC No. 7.50 is the standard instruction for this offense. (§ 69.) He contends the elements in CALJIC No. 7.50 which the court gave are incomplete. He notes that, unlike CALJIC No. 16.110, it does not state that elements to be proven include 1) that the peace officer was engaged in the performance of his or her duties or 2) was discharging or attempting to discharge a duty of his or her office and 3) that officers are not engaged in the performance of their duties if they use unreasonable or excessive force.

But where the offense, as here, involves an attempt to deter an officer, the court is not required to include these elements. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530 ["the attempt to deter does not require the officer to be performing his duties at the time of the crime"]; In re Manuel G. (1997) 16 Cal.4tth 805, 817.) The CALJIC No. 7.50 instruction on the elements which the trial court gave is sufficient. (People v. Lopez, supra, at p. 1530.)

The court also gave a special instruction on the responsibilities of ASH peace officers to conduct crowd control. Overson contends this instruction combined with CALJIC No. 7.50 denies him due process by 1) not stating that Overson must be acquitted if the officer engaged in unlawful conduct and 2) by omitting the phrase that the prosecutor has the burden to prove guilt beyond a reasonable doubt. We disagree.

Our Supreme Court has held that the lawfulness of the conduct in which the officer is engaged is not a factor which precludes a conviction for this offense. (In re Manuel G., supra, 16 Cal.4th at p. 817.) Here the trial court's instructions required the prosecution to prove more than it was required to by including language from CALJIC No. 16.110 about the lawfulness of police conduct. Jurors had to decide whether ASH officers engaged in a lawful exercise of crowd control. They had to determine if they used unreasonable or excessive force. If they did, the instructions require jurors to find their conduct unlawful and acquit Overson if he resisted with reasonable force.

These two instructions do not contain the phrase that the prosecution has the burden to prove guilt beyond a reasonable doubt. But we decide whether jurors would be confused about the burden of proof based on all the instructions. (People v. Mayfield (1997) 14 Cal.4th 668, 777.) Here the court gave CALJIC No. 2.90 which imposes upon the People the burden of proving Overson guilty beyond a reasonable doubt. This instruction was sufficient to advise jurors on the burden of proof for count 3. (§§ 1096, 1096a; People v. Martin (1980) 101 Cal.App.3d 1000, 1011.)

Overson claims a phrase in the special instructions shifted the burden of proof to him. It says, "[I]t is the duty of such patient to refrain from using force upon the officer unless unreasonable or excessive force is being used by the officer." But this language does not address the burden of proof that is discussed in CALJIC No. 2.90. The phrase Overson relies on is qualified by the introductory statement, "Where such officer is engaged in a lawful exercise of crowd control . . . ." (Italics added.) The language about the patient's duty is a correct statement of the law. (§ 834a; People v. Gonzalez (1990) 51 Cal.3d 1179, 1219.)

Moreover, there is no reasonable likelihood that had the court given CALJIC No. 16.110, the result would change. The jury convicted Overson of assault with force likely to produce great bodily harm and false imprisonment. Counts 1, 2 and 3 involved a single course of conduct. Overson raised the same underlying defense to all the counts. But the jury did not find him credible. Jurors who found Overson's conduct unlawful for counts 1 and 2 would not find it reasonable for count 3, had they been given CALJIC No. 16.110. Overson's testimony about Timko grabbing him around the waist does not support a finding of excessive force. (In re Joseph F. (2000) 85 Cal.App.4th 975, 990.) Overson also made admissions which undermined his defense. He said he deliberately provoked ASH staff and tried to interfere with their efforts to restrain the other patient. He admitted he tried to force staff into a position where they would have to physically restrain him.

VI. Sentencing

Overson contends that because the trial court found that section 654 applied, the sentences on two of the three counts should be stayed. The Attorney General agrees. They are correct.

The court ruled that the three counts were one transaction pursuant to section 654. Where two or more offenses are part of a single transaction, the defendant may be punished for one, but sentencing for the others must be stayed. (Ibid.; People v. Latimer (1993) 5 Cal.4th 1203, 1208; People v. Diaz (1967) 66 Cal.2d 801, 807.) Here the trial court imposed three concurrent sentences. But the Attorney General correctly notes that after finding that section 654 applied, the trial court had two options 1) impose sentence on count 1 and stay the sentences on counts 2 and 3, or 2) impose sentence on count 3 and stay the sentences on counts 1 and 2. The court utilized neither option. We agree with Overson that this matter must be remanded for resentencing.

We have reviewed Overson's remaining contentions and conclude he has not shown reversible error.

The sentences are vacated and we remand the matter to the trial court for resentencing. In all other respects the judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P.J.

We concur:

YEGAN, J.

COFFEE, J.

John A. Trice, Judge

Superior Court County of San Luis Obispo

______________________________

Sharon M. Jones, 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, Robert F. Katz, Supervising Deputy Attorney General, Roy C. Preminger, Deputy Attorney General, for Plaintiff and Respondent.

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