P. v. Smith

Filed 9/26/07 P. v. Smith CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Roderick Smith appeals a judgment entered upon a jury verdict finding him guilty of resisting an executive officer. (Pen. Code,[1] 69.) His sole contention on appeal is that the trial court erred in refusing to allow him to introduce impeachment evidence from an internal investigation of the officers conduct. We affirm.

I. BACKGROUND

At approximately 6:00 p.m. on May 19, 2005, Oakland police officers Eric Huesman and Donald Sawyer were driving a standard black and white police car with a light bar on the top and police department emblems on the door. They were dressed in police uniforms. As they drove, they saw defendant driving a car. Defendant looked at them with what the officers described a very angry, hostile expression, a grimace or a snarl, a very surprised look, and an  oh, shit  look, and stared at them for several seconds. Huesman was concerned that the defendant might be mentally unstable, and wanted to observe the driver and check his license plate number. Sawyer, who was driving, made a U-turn to follow defendants car. Huesman watched defendant, and noticed that he began to drive erratically as the officers made their U-turn. Defendant was making unsafe lane changes and cutting off other vehicles so they had to brake or swerve suddenly. Huesman activated the police cars flashing lights, and one of the officers may have turned on the siren.[2] Defendant drove quickly, although he was approaching cars waiting at a traffic light. The officers followed, intending to pull him over for making unsafe lane changes.

Defendant turned onto a dead-end street in a high-crime area. The officers followed him and stopped midway down the block, in about the middle of the street. They saw defendants car parked near the end of the street. Another man was standing by the car window, and Huesman saw his hand and defendants hands come away from each other. Huesman thought defendant might have received a gun from the other man. The officers got out of the police car, and Huesman drew his weapon. He expected to have to chase defendant on foot. However, defendant backed up his car and turned it so it was facing out of the dead-end street. Huesman believed that if defendant continued driving, he would endanger either Huesman or Sawyer, who was on the other side of the patrol car. Defendant looked back and forth between the two officers, smiling. Huesman, who was standing about halfway between the patrol car and the cars parked on the street, made eye contact with defendant. He yelled at defendant, telling him to stop his car or he would shoot. Defendant looked straight at Sawyer. He then accelerated his car, driving toward Sawyer, although there was more room on the other side of the car. Sawyer yelled at him to stop the car. Sawyer was afraid defendant would run him over, and he moved out of the way as quickly as he could. Although Sawyer had his gun out, he did not shoot. Huesman did not think Sawyer would be able to get out of the way, and he thought defendant intended to harm Sawyer. Huesman fired his gun at defendant, hoping to keep him from hitting Sawyer. Defendants car slowed, but continued to drive past the patrol car. He passed within about three feet of Sawyer, going over the spot in which Sawyer had been standing.

Huesman notified dispatch of the shooting, and the two officers got back into the car and followed defendant. They eventually found defendant several blocks away. His car had crashed into a parked car, and at least one other vehicle in the area was damaged. Several uniformed officers arrived, and one pointed his gun at defendant. With officers around the car, defendant continued to rev the engine and appeared to be trying to put it into gear. The officers sprayed defendant with pepper spray, pulled him out of the car, put him on the ground, and handcuffed him. Both of defendants arms were injured. His eyes were bloodshot, unfocused, and watery.

Defendant was taken to the emergency room of a hospital. While he was there, two police officers came into his room. Defendant immediately told them that the incident was his fault, not the fault of the officers. He appeared to be groggy, in pain, and under the influence of alcohol. A blood test taken more than two and a half hours after the incident showed defendants blood alcohol level to be .21.

Defendant was charged in count one with assault on a peace officer or firefighter ( 245, subd. (c)); in count two with resisting an executive officer by using threats or violence to prevent Sawyer from performing his duty ( 69); and in count three with resisting an executive officer by using threats or violence to prevent Huesman from performing his duty ( 69). Before trial, the trial court dismissed count three pursuant to section 995. The jury found defendant not guilty of count one, assault on a police officer, and guilty of count two, resisting an executive officer.

II. DISCUSSION

Defendant contends the trial court deprived him of his constitutional right to confrontation by excluding evidence of the results of an investigation into Huesmans action in shooting defendant.

During pretrial motions, the trial court noted that in reviewing materials related to a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531), it had found that there had been three investigations into the shooting. The first two, done by the internal affairs division and the homicide division, resulted in findings that Huesman had been justified in shooting defendant. The third investigation, done by the Board of Review of the Oakland Police Department, originally resulted in a unanimous finding that Huesmans action in shooting defendant was not justified under a police department general order. The police chief later overturned the boards recommendation, concluding that the shooting complied with department procedures.

The prosecutor moved to exclude evidence of the findings made in the investigations. Defense counsel argued the evidence was relevant to impeach Huesman, since the investigationsand the fact that three deputy chiefs had found his conduct unjustifiablegave him an interest in ensuring that his conduct was found to be justified.[3] The court ruled that the specific opinions and conclusions were inadmissible because they were improper opinion and hearsay. However, it also ruled that defense counsel could ask Huesman whether there had been a review of his actions and whether there was a controversy or difference of opinion about whether his actions complied with departmental policy.

During direct examination of Huesman, the following exchange took place: Q. Was there an investigation as a result of your officer involved shooting? [] A. Yes. [] Q. Were there discrepancies within the department as to whether or not your shooting was in compliance with OPD policies? [] A. Initially. [] Q. Is the investigation cleared? Closed? [] A. Yes. [] Q. And were you punished in any way or suffered a change in status or anything along those lines as a result of this incident? [] A. No. [] Q. Will the outcome of this particular case, to your understanding, will the outcome of this particular case affect your job in any way? [] . . . [ A.] It has no bearing on my career.

Later, in cross-examination, Huesman testified as follows: Q. And you learned that there would be several levels of review of your conduct; is that correct? [] A. Yes, maam. [] Q. Okay. And ultimately [] A. Im sorry, you asked if I learned. Actually, I already knew that there would be separate investigations and levels involved. [] Q. Okay. And ultimately, you learned that there was a controversy or discrepancies within the Oakland Police Department about your conduct; is that right? [] A. Yes, maam. [] Q. About whether your conduct was in compliance with the policies of the Oakland Police Department; is that correct? [] A. Yes, maam. [] . . . [] Q. But you now know that there is a division among the department about your conduct; is that correct? [] . . . [] A. At this time there is not. [] Q. Okay. And yesterday you said that there was only initially a discrepancy in the opinions of the superior officers about your conduct; is that correct? [] A. And Im sure Im not sure if initially is exactly correct. Because again, theres different levels of investigations. Theres separate investigations and different levels of review. During one of those levels of review, there was a discrepancy. [] Q. So in one of those levels of review, it was found that your conduct was not in compliance with the policy of OPD; is that correct? [] . . . [ A.] Correct. [] . . . [] Q. And you stated that you were not punished in this case; is that right? [] A. Correct, because it had not been finalized. [] Q. Have you been punished once it was finalized? [] A. When it was finalized, it was found to be in compliance, so Ive not been punished. Defense counsel stated that she believed the door had been opened to further questioning on this topic, and the trial court responded, I am denying the request to do that. Nevertheless, the exchange continued: Q. Did you think that you might be punished, based on the rulings of the police department? [] A. I did not. [] . . . [] Q. Yet we know that some superior officers found it was not correct; isnt that true? [] A. That it was not in compliance, correct.[4]

Defense counsel later argued that Huesmans testimony had opened the door for her to ask whether three deputy chiefs had found the shooting unjustified. The trial court did not change its ruling. Defendant contends the trial courts rulings deprived him of his right to confront Huesman by exposing his possible bias. (See People v. Hammon (1997) 15 Cal.4th 1117, 1124 [[t]he confrontation clause of the Sixth Amendment . . . entitled the defendant to expose the possible bias of a key prosecution witness . . .].)

The Sixth Amendment to the United States Constitution guarantees a criminal defendant the right to be confronted with the witnesses against him. Its   main and essential purpose . . . is to secure for the opponent the opportunity of cross-examination.   (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 (Van Arsdall).) However, not every restriction on a defendants desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. (People v. Frye (1998) 18 Cal.4th 894, 946.) As the United States Supreme Court has stated,  the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.  (Van Arsdall, supra, 475 U.S. at p. 679; see also People v. Cornwell (2005) 37 Cal.4th 50, 95 [the confrontation clause permits trial courts to retain wide latitude to impose limits on cross-examination concerning matters of marginal relevance].) Moreover, no constitutional violation occurs from the exclusion of impeachment evidence where the excluded testimony could not reasonably have produced a significantly different impression of [the witnesss] credibility . . . .  (People v. Mickle (1991) 54 Cal.3d 140, 168-169.)

Here, defendant was allowed to establish that Huesmans actions had been investigated and that there was a difference of opinion within the police department about whether the shooting was justified, and Huesman was cross-examined on whether he had been concerned about the results of the investigation. Indeed, defense counsel elicited testimony that at one level of review, some superior officers had found that Huesmans conduct did not comply with police department policy. This cross-examination was fully adequate to expose any motivation for Huesman to testify inaccurately. Defendant does not show that further cross-examination would have been necessary, or even helpful, to make his point, or that it could have produced a significantly different impression of Huesmans credibility. In the circumstances, we conclude defendant had the opportunity for effective cross-examination. The trial court neither abused its discretion nor denied defendant his constitutional right to confrontation.

III. DISPOSITION

The judgment is affirmed.

________________________

RIVERA, J.

We concur:

___________________________

RUVOLO, P.J.

___________________________

SEPULVEDA, J.

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

[2] Sawyer testified that one of the officers turned on the siren. Some local residents, however, testified that they did not hear a siren. In closing argument, the prosecutor stated, [Officers Huesman and Sawyer] may have hit their sirens, thats been something thats been up in the air.

[3] Defense counsel argued that exclusion of the evidence would implicate defendants Sixth Amendment right to confront Huesman. We therefore reject the Attorney Generals argument that defendant waived his confrontation claim by failing to raise it below.

[4] The trial court instructed the jury to consider the evidence of the investigations only for Huesmans state of mind, and not for their truth.