P. v. Rodriguez

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Filed 11/14/13  P. v. Rodriguez CA4/2

 

 

 

 

 

 

 

 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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>

 

FOURTH APPELLATE DISTRICT

 

DIVISION TWO

 

 
>

THE PEOPLE,   Plaintiff and Respondent,   v.   CESAR CAZAREZ RODRIGUEZ,   Defendant and Appellant.

E056717   (Super.Ct.No. RIF1100169)   OPINION

APPEAL from the Superior
Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Riverside County.
 Becky Dugan and Bernard Schwartz, Judges.href="#_ftn1" name="_ftnref1" title="">

  Affirmed.

Richard Power, under
appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney
General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior
Assistant Attorney General, William M. Wood and Gary W. Brozio, Deputy Attorneys
General, for Plaintiff and Respondent.

A jury found defendant Cesar Cazarez Rodriguez
guilty on one count of battery by a prison inmate on a noninmate (Pen. Code, § 4501.5)
and one count of forcibly resisting an
executive officer (Pen. Code, § 69). 
Defendant admitted two strike priors (Pen. Code, §§ 667, subds.
(b)-(i), 1170.12) and one 1-year prior prison term enhancement (Pen. Code,
§ 667.5, subd. (b)).

Originally, the trial court sentenced defendant
to 25 years to life in prison.  While
this appeal was pending, however, it resentenced him, pursuant to the Three
Strikes Reform Act, to nine years in prison. 
(Pen. Code, § 1170.126.) 
Accordingly, defendant concedes that all issues regarding his original sentence
are moot.

Defendant now contends:

1.  There
was insufficient evidence that defendant resisted an officer “by the use of
force or violence” so as to be guilty under Penal Code section 69.

2.  This
court should independently review the
trial court’s in camera ruling on defendant’s motion for disclosure of
information from peace officers’ confidential personnel files.

We find no error. 
Hence, we will affirm.

I

FACTUAL BACKGROUND

A.        Prosecution Evidence.

Defendant was an inmate at the California
Rehabilitation Center
in Norco.

On May 6, 2010,
correctional officers conducted a routine search of defendant’s dormitory.  Officer Ryan Wiltsey blocked the bathroom
while Officer Ernest Martinez and two other officers carried out the search.

Defendant “popped up” and started to leave the
area that the officers were headed toward. 
In Officer Martinez’s experience, this could indicate possession of
contraband.  He therefore stopped
defendant and asked “if he had anything on him.”  Defendant said “Yes,” and started to reach
one hand into his waistband.  Officer
Martinez “caught a glimpse of” a dime-sized piece of cellophane.  Inmates are not allowed to keep cellophane
because it can be used to conceal other contraband.

Officer Martinez grabbed defendant’s shirt.  However, defendant started running toward the
bathroom, which caused the shirt to rip. 
Officer Martinez chased him and yelled at him to get down.

Officer Wiltsey took up a “defensive stance” in
the doorway to the bathroom.  Defendant
bent down and extended his hands out in front of himself.  He hit Officer Wiltsey in the right shoulder,
spinning him around and almost but not quite knocking him down.

Defendant ran to a toilet, grabbed it, and
crouched in front of it.  Officer
Martinez thought he might be spitting something out into the toilet.  Officer Martinez and Officer Wiltsey pulled
him back.  Defendant landed on the floor,
on his stomach, with both arms under his body. 
Officer Martinez tried to pull defendant’s left arm out from under his
body and behind his back, to cuff him. 
Meanwhile, Officer Wiltsey lay on top of defendant to hold him
down.  Defendant kept “wiggling.”  He seemed to be trying to move his hands
toward his mouth.  A third officer
arrived, grabbed defendant’s right arm, got it behind his back, and managed to
cuff it.  Officer Martinez then managed
to cuff defendant’s left arm.

Officers searched defendant’s person, the toilet,
and the bathroom, but found no contraband. 
On the assumption that defendant had swallowed the contraband, his
excreta were monitored and searched for several days, but no contraband was
found.

B.        Defense Evidence.

Defendant took the stand on his own behalf.  He admitted prior convictions for carjacking,
grand theft from the person, carrying a loaded firearm, receiving stolen property,
and being a gang member.

Defendant testified that he felt sick and had to
throw up, so he started walking toward the bathroom.  Officer Martinez stopped him and patted him
down.  Defendant denied having any
contraband or saying that he had any.

When Officer Martinez let go of his shirt, defendant
thought the search was over.  He said he
was sick and he had to throw up, then ran to the bathroom.  He denied hearing any order to stop.  He also denied making physical contact with
Officer Wiltsey.  He testified that
Officer Wiltsey was in the rear of the bathroom, not in the doorway.

Defendant went to a toilet and vomited.  Officers then pulled him backwards, “twisted
[him] to the floor,” choked him, and punched him.  He kept reaching for his neck because he
could not breathe.

C.        Contrary Prosecution
Evidence.

The officers testified that defendant never said
he was sick and never vomited.  They
denied hitting or kicking him.

Officer Martinez testified that sometimes, during
a search, one inmate will create a diversion to give other inmates an opportunity
to hide contraband.

II

THE SUFFICIENCY OF THE EVIDENCE
OF FORCE OR VIOLENCE

FOR PURPOSES OF FORCIBLY
RESISTING AN EXECUTIVE OFFICER

Defendant contends that there was insufficient
evidence that he resisted the officers “by the use of force or violence” so as
to be guilty under Penal Code section 69.

Penal Code section 69 makes it a crime (1) to “attempt[],
by means of any threat or violence, to deter or prevent an executive officer
from performing any duty imposed upon such officer by law,” or (2) to “knowingly
resist[], by the use of force or violence, such officer, in the performance of
his duty . . . .”  Here,
there was no evidence of any threat, so there had to be evidence that defendant
used force or violence.

There is no statutory definition of “force” or
“violence” that applies to Penal Code section 69.  We give these terms their ordinary, nonlegal
meaning.  (See People v. Griffin (2004) 33 Cal.4th 1015, 1022-1023 [“force” as
used in rape statute has no specialized legal meaning].)  The Oxford English Dictionary defines “force”
as “[p]hysical strength or power exerted upon an object; esp. the use of physical strength to constrain the action of
persons; violence or physical coercion.” 
(Oxford English Dict. (3d ed. 2000) ,
as of November 13, 2013.)

Defendant focuses on the struggle on the bathroom
floor.  During that struggle, he was
resisting by “wiggling,” pulling his arms away, and moving them toward his
mouth.  However, he did not hit or kick
the officers.

Regardless of whether there was sufficient
evidence that defendant used violence in the course of that struggle, there was
sufficient evidence that defendant used violence when he hit Officer Wiltsey in
the shoulder.  He “was running at a high
rate of speed.”  He “bent down as to
brace himself”; Officer Martinez likened this to a football “charge.”  He put both hands out in front of him.  His right hand “struck” Officer Wiltsey’s
right shoulder.  The impact spun Officer
Wiltsey around “approximately 180 degrees.” 
Officer Wiltsey also fell backwards, though he did manage to “catch
[his] balance.”  This constituted the use
of force and violence under any definition.

III

PITCHESS

Defendant asks us to review the trial court’s in
camera ruling on his motion for disclosure of information from peace officers’
confidential personnel files pursuant to Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).  The People do not oppose the request.

A.        >Additional Factual and Procedural Background.

Before trial, defendant filed a >Pitchess motion regarding four named
correctional officers, including Officer Martinez and Officer Wiltsey.  The Department of Correction &
Rehabilitation (the Department) opposed the motion.

The trial court found that defendant had shown
good cause for an in camera hearing solely with respect to Officer Martinez and
Officer Wiltsey.  The in camera hearing
was attended only by the Department’s attorney and the Department’s custodian
of records.  After being sworn, the
custodian testified that he had searched for records potentially responsive to
the motion, but there were none.  The
trial court found that there were no discoverable materials.

B.        >Analysis.

Under Pitchess,
“on a showing of good cause, a criminal defendant is entitled to discovery of
relevant documents or information in the confidential personnel records of a
peace officer accused of misconduct against the defendant.  [Citation.] . . .  If the defendant establishes good cause, the
court must review the requested records in camera to determine what
information, if any, should be disclosed. 
[Citation.]  Subject to certain
statutory exceptions and limitations [citation], ‘the trial court should then
disclose to the defendant “such information [that] is relevant to the subject
matter involved in the pending litigation.”’ 
[Citations.]”  (>People v. Gaines (2009) 46 Cal.4th 172,
179.)

The record of the in camera hearing is sealed,
and appellate counsel for the defendant as well as counsel for the People are
not allowed to read it.  (See >People v. Hughes (2002) 27 Cal.4th 287,
330.)  Thus, on request, the appellate
court must independently review the sealed record.  (People
v. Prince (2007) 40 Cal.4th 1179, 1285.)

Here, the record of the trial court’s in camera
examination of the officers’ personnel files is adequate for our review.  It demonstrates that the trial court followed
the proper procedures (see People v. Mooc
(2001) 26 Cal.4th 1216, 1228-1229) and that there simply were no discoverable
materials.  We find no error.

IV

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

                                                                                                RICHLI                                              

                                                                                                                                                        J.

 

We
concur:

 

 

McKINSTER                                    

                                                  Acting P. J.

 

 

CODRINGTON                                            

                                                                     J.