P. v. Rhodes

Filed 6/7/06 P. v. Rhodes 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

Following a bench trial, appellant Grant Charles Rhodes was convicted of several felony counts including assault with a firearm upon a peace officer with a firearm use enhancement. (Pen. Code, §§ 245, subd. (d)(1), 12022.53, subd. (b).)^[1] He was sentenced to prison for 14 years. Appellant contends: (1) comments by the trial court show that it did not find all the elements of the assault count true beyond a reasonable doubt; (2) the court abused its discretion when it denied his request to modify the assault count to a conviction for brandishing a weapon; (3) the evidence was insufficient to support a conviction of misdemeanor hit-and-run; (4) the imposition of a 14-year sentence was cruel and unusual punishment; and (5) the trial court erred when it denied a defense motion for an in camera review of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). We agree with the last contention.

FACTS AND PROCEDURAL HISTORY

On April 18, 2004, appellant crashed his car into a parked car belonging to one of his neighbors. He approached the neighbor's door, knocked and then ran up the street toward his house. He returned a few minutes later with his mother in his mother's car and was approached by a neighbor who had heard the collision. Appellant said he had been drunk, and he appeared to be anxious and inebriated. An off-duty deputy who lived in the area approached appellant and told him to calm down. Appellant ran to his mother's car and drove away, leaving her at the scene.

Neighbors reported the accident and Deputy Sheriff Crone came to the scene to investigate. Crone told appellant's mother to call him if appellant returned. Later that morning, appellant's mother called him and told him appellant had returned home without her car. Deputies Crone and Alvarez drove over to the house and were admitted by appellant's sister, who said that appellant was trying to jump over a fence in the back yard. Deputy Crone walked in and saw appellant's mother standing in the back yard, pleading with someone who was out of Crone's view.

Crone walked through a sliding glass door into the back yard and saw appellant, who pivoted his body and pointed a revolver toward Crone. Appellant brought the gun to waist level, at an angle of about 75 degrees. Crone immediately placed appellant in a bear hug and struggled with him for several minutes. He was joined by Deputy Alvarez, and the two of them finally subdued appellant. When the struggle was over, appellant's mother was holding the gun. She set it down so that Crone could retrieve it. When he did so, he saw that it was cocked and loaded with two bullets.

Appellant's mother testified that appellant had been distraught since his father died the month before. He was agitated after the car crash and was worried about going to jail. Appellant tried to escape the police over a back yard fence when they arrived at the house, but his mother physically stopped him. She grabbed the gun away from him and handed him off to Deputy Crone, who dropped appellant onto the patio. Appellant's mother testified that the gun was not cocked when she gave it Crone.

The court convicted appellant of the following crimes: assault with a firearm upon a peace officer with a firearm use allegation (§§ 245, subd. (d)(1), 12022.53, subd. (b)), felon in possession of a firearm (§ 12021, subd. (a)(1)), two counts of resisting an officer (§ 69), and misdemeanor hit-and-run (Veh. Code, § 20002). Appellant pled no contest to driving under the influence and driving with a .08 percent or higher blood alcohol level. (Veh. Code, §§ 23152, subds. (a) & (b).) Appellant's 14-year prison sentence consisted of the 4-year lower term on the assault count, plus a 10-year firearm enhancement under section 12022.53, subdivision (b). The sentences on all other counts were either ordered to run concurrently or were stayed.

DISCUSSION

Elements of Assault Conviction

Appellant argues that the conviction for assault with a firearm must be reversed because the court's comments show that it did not believe he acted with the intent requisite for an assault. We disagree.

An assault is an unlawful attempt, coupled with the present ability, to commit a violent injury on the person of another. (People v. Rocha (1971) 3 Cal.3d 893, 899.) Assault is a general intent crime, the pivotal question being whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm. (People v. Williams (2001) 26 Cal.4th 779, 792.)

Viewed in the light most favorable to the verdict, the evidence established that appellant pointed a cocked and loaded handgun at Officer Crone. Pointing a loaded gun in the direction of another person is sufficient to support a conviction of assault with a firearm, even if that gun is not fired. (People v. Raviart (2001) 93 Cal.App.4th 258, 263-267.)

Appellant argues that the court specifically found that he did not intend to shoot Officer Crone; consequently, there was no basis for concluding that the act of pointing the gun was one likely to result in the application of physical force. He relies on remarks made by the court when it denied a motion for new trial by the defense: "Had it not been for [Crone's] immediate reaction, he could very well have been shot. Lord knows, it could have been fatal. That didn't occur because of his quick reaction and perhaps also because, [appellant], as you've indicated, didn't really want to shoot him either, I suspect." Appellant also notes that when it rendered its verdict, the court stated, "I'm not convinced that necessarily [appellant] was going to fire that weapon at [Crone]." (See Kuffel v. Seaside Oil Co. (1977) 69 Cal.App.3d 555, 568 [trial court's opinion may be used to explain, but not to contradict, it findings].)

The court's remarks do not demonstrate that its verdict was based on a factually or legally erroneous view of the evidence. Its statement that perhaps appellant "didn't really want to shoot" the victim is not inconsistent with a finding that when he raised the gun, he had the intention of doing so if necessary to make his getaway. When it pronounced the verdict, the court specifically said that the evidence suggested appellant intended to "make good his escape by using that firearm against Deputy Crone to get away from the residence and get away from the deputies." A conditional threat to shoot if the victim does not comply with a demand--here, an implied demand that that officer refrain from taking him into custody--is sufficient to constitute an assault. (See People v. Lipscomb (1993) 17 Cal.App.4th 564, 570.)

Motion to Modify Assault Count

Appellant contends the trial court should have granted his motion to modify the assault conviction to the lesser crime of brandishing a firearm under section 417, subdivision (c). We reject the claim.

Section 1181, paragraph 6, allows the court to grant a motion for new trial: "When the verdict or finding is contrary to the law or the evidence, but if the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the cause may be appealed[.]" The defense filed a motion seeking modification of the assault conviction to the lesser crime of brandishing a firearm on the ground that the verdict on the assault count was contrary to the evidence. (See § 417, subd. (c).) The trial court denied the motion after concluding that the assault count was supported by the evidence and that brandishing was not a lesser included offense.

The trial court has broad discretion when determining whether the evidence presented at trial had sufficient probative value to sustain the verdict. (People v. Dickens (2005) 130 Cal.App.4th 1245, 1252.) Appellant argues that the court abused its discretion because it mistakenly believed the assault conviction could be sustained even if appellant had no intent to shoot Deputy Crone. This is essentially a reiteration of the argument that the court did not find all of the necessary elements of assault true beyond a reasonable doubt. We have already concluded that the record provides no support for this argument, and that ample evidence supported the assault conviction. The court did not abuse its discretion when it rejected the claim that the assault count was contrary to the evidence.

Appellant also argues that the court was mistaken in its belief that it lacked the authority to modify the verdict to brandishing a firearm because brandishing is a lesser included offense of assault. We disagree. "Even though most assaults with a firearm undoubtedly include conduct fitting into the definition of brandishing, it has long been held that brandishing is a lesser related offense, rather than lesser included. [Citations, fn. omitted.] The reason of course, is that it is theoretically possible to assault someone without exhibiting the firearm in a rude, angry or threatening manner, e.g., firing or pointing it from concealment, or behind the victim's back." (People v. Steele (2000) 83 Cal.App.4th 212, 218.)

Appellant argues that Steele's analysis is faulty because it wrongly assumes that pointing or firing a gun from behind the victim's back is an assault but not a brandishing. (See People v. McKinzie (1986) 179 Cal.App.3d 789, 793-794.) Be that as it may, it is still possible for a defendant to assault a victim with a concealed weapon--firing a gun from under a coat, for example--without also displaying that weapon in a rude, threatening or angry manner. "[T]he conclusion is inescapable that an assault with a firearm may be committed without the defendant brandishing such weapon." (People v. Steele, supra, 83 Cal.App.4th at p. 221.)

Sufficiency of Evidence of Hit-and-Run

Appellant argues the evidence was insufficient to support his conviction of misdemeanor hit-and-run under Vehicle Code section 20002, subdivision (a). We review the record in the light most favorable to the judgment to determine whether there is any substantial evidence supporting the conviction. (People v. Osband (1996) 13 Cal.4th 622, 690.)

Vehicle Code section 20002, subdivision (a) provides that any driver involved in an accident causing property damage must stop and provide identifying information to the owner of the damaged property. The offense is committed if the defendant "(1) knew he or she was involved in an accident; (2) knew damage resulted from the accident; and (3) knowingly and willfully left the scene of the accident (4) without giving the required information to the other driver(s)." (People v. Carbajal (1995) 10 Cal.4th 1114, 1123, fn. 10.)

Appellant collided with a neighbor's car and caused property damage. Though he apparently made an effort to contact his neighbor by knocking on the door of the house, he left the scene without providing contact information. He returned with his mother but then left the scene again without providing the information to the owner of the car. The deputies who investigated the scene found appellant's torn driver's license when they searched the car, but we agree with the Attorney General that a defendant who tears his license in half and leaves portions of it in different areas of an abandoned car has not "notified" another person of his role in the collision. Nor are we persuaded that appellant complied with the statute because his mother remained at the scene when he left for the second time in her car.

Cruel and Unusual Punishment

The trial court sentenced appellant to prison for 14 years, which was the minimum term available given the mandatory 10-year firearm enhancement under section 12022.53, subdivision (b). It commented that it was bound to impose a 14-year sentence even though it believed the term was too long given the nature of appellant's offense, and it indicated that a term of 7 years would, in its view, be more appropriate. The prosecution declined the court's invitation to dismiss the firearm enhancement and agree to a lower sentence under the lesser enhancement provisions of section 12022.5, subdivision (a).

Appellant argues that the court was mistaken in its belief that it had no discretion to impose a sentence of less than 14 years. He notes that under People v. Dillon (1983) 34 Cal.3d 441, the court may reduce a sentence when it would amount to cruel or unusual punishment under the state or federal constitution. Appellant asks us to remand the case because the court wrongly believed that Dillon could not be used to reduce his assault charge or enhancement.

"Whether a punishment is cruel or unusual is a question of law for the appellate court, but the underlying disputed facts must be viewed in the light most favorable to the judgment." (People v. Martinez (1999) 76 Cal.App.4th 489, 496.) The question is whether a punishment is "so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424.) This assessment may be based solely upon the nature of the offense and the offender, although the punishments imposed for more serious offenses within the same jurisdiction and for similar offenses within different jurisdictions may also be relevant. (Id. at pp. 425-427; People v. Weddle (1991) 1 Cal.App.4th 1190, 1195-1200.) On review, we grant substantial deference to the Legislature's power to set the punishment for a particular crime. (People v. Zepeda (2001) 87 Cal.App.4th 1183, 1213-1214.)

In this case, appellant pointed a cocked and loaded handgun at a deputy sheriff and struggled vigorously as the deputy tried to disarm him. He was a 23-year-old adult at the time and had a criminal record that included a felony drug conviction involving a weapon. The majority of appellant's sentence is attributable to the 10-year firearm enhancement under section 12022.53, subdivision (b), which has been held not to constitute cruel and unusual punishment. "[T]he Legislature determined in enacting section 12022.53 that the use of firearms in commission of the designated felonies is such a danger that 'substantially longer prison sentences must be imposed . . . in order to protect our citizens and deter violent crime.' The ease with which a victim of one of the enumerated felonies could be killed or injured if a firearm is involved clearly supports a legislative distinction treating firearm offenses more harshly than the same crimes committed by other means, in order to deter the use of firearms and save lives." (People v. Martinez, supra, 76 Cal.App.4th at pp. 497-498.) Appellant's 14-year sentence does not amount to cruel and unusual punishment.

Pitchess Motion

Appellant contends the trial court erred when it denied his Pitchess motion, which sought discovery of the police personnel records of Deputy Crone. We agree.

In Pitchess, supra, 11 Cal.3d at pp. 536-537, the Supreme Court ruled that a criminal defendant could compel discovery of relevant information in a law enforcement officer's personnel file. The holding has since been codified by the Legislature, which has established an in camera procedure for reviewing law enforcement personnel records upon an adequate showing by the defendant. (§§ 832.7, 832.8; Evid. Code, §§ 1043-1045.) To initiate discovery, a defendant must file a motion supported by affidavits showing good cause for the discovery by demonstrating the materiality of the information sought and by "'stating upon reasonable belief'" that the law enforcement agency has the records at issue. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) This showing of good cause is a "'relatively low threshold for discovery.'" (Ibid.)

Law enforcement records are material if the affidavits show a "'specific factual scenario'" that establishes a "'plausible factual foundation.'" (Warwick v. Superior Court, supra, 35 Cal.4th at p. 1021.) There must be "a logical link between the defense proposed and the pending charge" and it must be apparent that the "discovery being sought would support such a defense or . . . would impeach the officer's version of events." (Ibid.) To obtain in camera review of police personnel records, the defendant "need only demonstrate that the scenario of officer misconduct alleged could or might have occurred." (Id. at p. 1016.)

In this case, a key issue at trial was whether appellant pointed his gun at Deputy Crone. Appellant's mother claimed she had already taken the gun away from appellant and that consequently, he could not have pointed it at Crone as Crone described. Defense counsel's declaration in support of the Pitchess motion describes the discrepancy between the expected testimony of appellant's mother and that of Crone: "Defendant's mother could predict the potential for disaster if police encountered her son while he was armed, and she took the handgun away from her son who had moved toward or out onto the back patio, where [Deputy] Crone contacted him. He was at this point disarmed. [¶] Inexplicably, it is alleged that Defendant still had that hand gun. [Deputy] Crone has testified to such as well as reporting it in his police report. [Deputy] Alvarez reports and testifies in support of his partner that day. [¶] Percipient witnesses to a conversation between [Deputy] Alvarez and Defendant's mother recall that officer statements that day were far different and acknowledged that they did not perceive a threat from a handgun in Defendant's possession. Defendant's mother recalls the same as these witnesses. [¶] It is my belief, based on the foregoing, that a material and substantial issue in the trial will be the character, habits, customs and credibility of [Deputies] Michael Crone # 3346 and Dillan Alvarez #3616,^[2] with respect to their use of undue force, history of false arrests, history of arrests that lack probable cause, and history of detentions lacking reasonable suspicion; and destruction of evidence and creation of false arrest reports and the making of false statements."

The trial court recognized that Crone's credibility was a material issue, but concluded that defense counsel's declaration, as written, did not clearly establish a disparity between his version of events and that given by appellant's mother. We disagree. The quoted portion of counsel's declaration shows that the defense disputed Crone's claim that appellant pointed the weapon at him. This was a plausible factual scenario which raised a reasonable inference that Crone had not been truthful. (See People v. Hustead (1999) 74 Cal.App.4th 410, 416-417.) Citizen complaints relating to false police reports and the fabrication of evidence would be highly relevant to Crone's credibility, and the court erred when it declined to review Crone's personnel file in an in camera hearing.

DISPOSITION

The judgment is reversed and the cause is remanded with directions to the trial court to conduct an in camera hearing on appellant's Pitchess motion consistent with this opinion. If the hearing reveals no discoverable information in Deputy Crone's personnel file which would lead to admissible evidence helpful to appellant's defense, the trial court shall reinstate the original judgment and sentence which shall stand affirmed. If the in camera hearing reveals discoverable information bearing on the deputy's honesty which could lead to admissible evidence helpful to appellant in defense of the charge, the trial court shall grant the requested discovery, allow appellant an opportunity to demonstrate prejudice, and order a new trial if prejudice is demonstrated. (See People v. Hustead, supra, 74 Cal.App.4th at p. 423.)

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

YEGAN, J.

Kevin J. McGee, Judge

Superior Court County of Ventura

______________________________

Susan Pochter Stone, 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, Steven D. Matthews, Supervising Deputy Attorney General, David F. Glassman, Deputy Attorney General, for Plaintiff and Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Apartment Manager Lawyers.

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

^[2] Appellant does not contend that the declaration supported an in camera review of Deputy Alvarez's personnel file, and we limit our discussion to the discoverability of Deputy Crone's file.