P. v. Scoggins

Filed 10/2/06 P. v. Scoggins CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Stanislaus County. Edward M. Lacy, Jr., Judge.

Matthew Alger, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted appellant Jason Scoggins of felony reckless driving while evading a peace officer (Veh. Code, § 2800.2) and found true allegations appellant had suffered a “strike”^[1] and had served a prison term for a prior felony conviction (Pen. Code, § 667.5, subd. (b)). The court imposed a prison term of five years, consisting of the two-year midterm on the substantive offense, doubled pursuant to the three strikes law (Pen. Code, §§ 667, subd. (e)(1); 1170.12, subd. (c)(1)), and one year on the prior prison term enhancement.

On appeal, appellant argues that the court, in violation of appellant’s rights under the United States Constitution, improperly (1) limited cross-examination of a prosecution witness, and (2) instructed the jury, in essence, that appellant committed the instant offense. We will affirm.

FACTS

Prosecution Case

California Highway Patrol (CHP) Officer Mayolo Banuelos testified to the following. At approximately 10:30 to 11 p.m. on May 21, 2005 (May 21), he was off duty and driving home on State Highway 99 when he saw a white four-door sedan “weaving all over the roadway . . . .” Using his cell phone, he contacted the CHP dispatcher and continued following the sedan. No CHP units were available, so the dispatcher contacted the City of Turlock Police Department (TPD). After Officer Banuelos had been following the sedan for approximately 15 miles, it exited the highway. The officer continued to follow the sedan and eventually two marked police patrol vehicles came on the scene.

TPD Officer Neil Cervenka testified that on May 21 at approximately 11 p.m., he was in uniform, driving a marked police patrol vehicle, when he responded to a report of a “possible drunk driver into Turlock.”^[2] He saw the “suspect vehicle“ on Minaret, traveling approximately 40 to 45 miles per hour in a 25-miles-per-hour zone. Officer Banuelos yielded to the right and Officer Cervenka pulled in behind the sedan. TPD Officer Michael Simbalenko also responded, and he pulled in behind Officer Cervenka.

The sedan slowed but did not stop at a stop-sign-controlled intersection, accelerated rapidly and turned right on Main, again failing to stop at a stop sign. At that point, Officer Cervenka, who was approximately one car length behind the sedan, activated his “emergency lights,” which consisted of red and blue “strobe” lights “on the sides” and a “steady red lamp” in the “center,” visible from a distance of 1,000 feet. The sedan slowed down and “began to yield to the right.” As it did so, Officer Cervenka saw a glass bottle come out the passenger side window. Liquid was coming out of the bottle as it flew through the air.

At that point, the sedan collided with a “steel decorative lamp post,” bending it at a 45-degree angle. The sedan came to a stop. Officer Cervenka also came to a stop, approximately one car length behind the sedan. As he began to get out of his vehicle, the sedan’s brake lights came on. The officer got back in, checked his rear-view mirror and saw that Officer Simbalenko’s vehicle was stopped approximately one-half car length behind. At that point, the sedan accelerated backwards, collided with Officer Cervenka’s patrol car and then accelerated forward. Officer Cervenka, his emergency light already on, activated his siren and gave chase. Officer Simbalenko joined the pursuit.

The sedan reached a top speed of 65 to 70 miles per hour, still traveling through a 25-miles-per-hour zone. At the corner of Pioneer and Main, the sedan drove over a nine-inch concrete wall into the front yard of a building, appearing to blow out two tires in the process. The sedan then drove back onto Pioneer and eventually pulled into the driveway of an apartment complex on Pioneer and came to a stop. Officer Cervenka also came to a stop and, as he was getting out of his vehicle, a person, whom the officer identified in court as appellant, “climb[ed] out of the driver side window of the car.”

Officer Cervenka ordered appellant to stop. As appellant got out of the car “he looked at [Officer Cervenka] and cl[e]nched his fist.” At that point, the officer “aimed [the] taser at [appellant], which is a laser dot,” told appellant he was under arrest and ordered him to get down on the ground. Appellant, however, “turned and began to run,” at which point the officer “deployed [his] air taser,” i.e., shot two “metal probes” which emit 50,000 volts of electricity when they strike an object. The probes struck appellant, who was approximately 10 feet away, and he fell to the ground. Office Simbalenko, who was “running up behind [Officer Cervenka] when [appellant] turned and ran,” then handcuffed appellant. Officer Cervenka then transported appellant to a hospital.

The parties stipulated that a blood test performed at the hospital revealed that appellant had a blood alcohol level of .24.

Office Banuelos also testified to the following. He saw the “patrol car emergency lights activate.” He also saw the sedan “stopped on the street” and appellant running. “The officers” gave appellant the verbal command to stop and “they used . . . their taser to apprehend [appellant].”

Officer Simbalenko testified that in responding to a report of a drunk driver, he joined in Officer Cervenka’s pursuit of a vehicle on Minaret.^[3] Officer Cervenka activated his emergency lights and Officer Simbalenko did likewise. Officer Simbalenko “couldn’t necessarily see everything that happened [during the chase],” but he saw a “light pole lean forward as if it was hit.” At some point the suspect vehicle and Officer Cervenka’s vehicle stopped, but as Officer Cervenka was getting out of his car, the suspect vehicle “began backing up.” As Officer Simbalenko got back in his car the suspect vehicle drove off “at a high rate of speed.” The two officers gave chase in their vehicles.

The suspect vehicle “cut through the front yard of a business,” and then got back on the roadway, at which point the suspect vehicle “was slanted to the left side very noticeably,” indicating the tires on that side were flat.

Eventually, the suspect vehicle came to a stop. Officer Simbalenko also stopped, at which point appellant had climbed out of his car and Officer Cervenka was out of his car and yelling at appellant to stop. Initially, appellant was facing Officer Cervenka, but just as Officer Simbalenko ran up, appellant “turned to run away.”

When appellant was facing Officer Cervenka, appellant’s hands were at his side. Appellant did not make any threatening gestures, and Office Simbalenko “didn’t see” appellant “put up his hands and fists.” Appellant faced Officer Cervenka for “[a] few seconds.” Officer Simbalenko’s view of appellant was unobstructed.

When appellant turned and ran, Officer Cervenka “deployed his taser,” and appellant fell to the ground. At that point, Officer Simbalenko handcuffed appellant.

Defense Case

Appellant testified to the following. He did not drive on Highway 99 on the night in question because “[he] knew [he] was too drunk to drive on the freeway.” He did not know police were behind him because he was “heavily intoxicated” and he was “trying to pay attention [to] what was in front of [him]” so he could get home. He made a “California stop” at one point but he did not drive faster than 35 miles per hour in traveling from the area of the lamp post to the apartment complex where he stopped, nor did he collide with a lamp post or back his car into a police car. He drove over a nine-inch barrier, but his tires did not become flat until he reached the apartment complex. He did not see any flashing lights until he arrived at the apartment complex. Upon seeing the flashing lights he got out of the car. He did not hear any sirens. He got out of his car by opening the door; he did not climb out a window. He threw a malt liquor bottle out of the window because it was empty, not because police were following him. He did not comply with the officer’s order that he put his hands up because there was a “beam” pointed at his chest. He did not turn and run; rather, he “stumbled . . . to the right.”

DISCUSSION

Limitation of Cross-Examination of Officer Cervenka

Appellant contends the court violated appellant’s Sixth Amendment right to confront witnesses against him by improperly limiting his right to cross-examine an important prosecution witness.

Background

On direct examination, Officer Cervenka testified he went through TPD training on the use of tasers and this training covered under what circumstances and upon whom tasers can be used. He also testified as follows:

“Q. . . . [Did the] conditions that you faced on this evening . . . warrant under Turlock Police to use taser [sic]?

“A. Yes, they did.”

Defense counsel objected and asked that he be provided with a copy of the TPD written policy on use of force. In response to a question from the court, the officer said he could bring the written policy to court the following day. The court directed him to do so. Officer Cervenka then testified that according to his training, taser use was “allow[ed]” “[w]hen there’s a resisting arrest, any type of physical resistance, if they assume a fighting stance[,] if they’re running from us,” and these conditions were present on the night in question.

Defense counsel, after cross-examining the officer, stated he “would like to be able to resume cross-examination when we have the procedure here.” The court left open the possibility of such cross-examination and directed the officer to return to court the next day. Later that afternoon, outside the presence of the jury, defense counsel stated he wanted to cross-examine Officer Cervenka the following day “[i]n regard to the use of force.” When the court asked about the relevance of the proposed cross-examination, defense counsel responded that he wished “[t]o challenge the credibility of that officer.” Counsel explained that he had seen the Modesto Police Department’s “policy statement” regarding use of force and he anticipated the TPD policy would be similar. If it was, counsel suggested, Officer Cervenka had violated the TPD policy, and he (defense counsel) wished to cross-examine the officer “on whether he used force in a proper way.”

The court stated, “I am going to order stricken any and all testimony regarding Turlock Police Department policy as being irrelevant here.” The court further stated it “would not allow any further cross-examination anyway on [the] policy . . . .”

Analysis

Appellant argues that the written TPD policy on use of force might have provided evidence that Officer Cervenka’s use of the taser was not justified, contrary to the officer’s testimony that the circumstances warranted his use of the taser against appellant. Therefore, he contends, cross-examination on the policy would have been relevant to Officer Cervenka’s credibility. Specifically, appellant argues, the jury could have found Officer Cervenka was motivated to lie about his use of the taser because he violated the department’s use-of-force policy, and if the jury found the officer was untruthful regarding the justification for his taser use, the jury could have also found that the officer “was untruthful about other facts and therefore . . . rejected his entire testimony.” Based on the foregoing, appellant contends the court, by precluding cross-examination of Officer Cervenka regarding the TPD use-of-force policy, improperly limited his right to cross-examine a critically important prosecution witness on matters relevant to the witness’s credibility, in violation of appellant’s confrontation rights under the Sixth Amendment.

“The Confrontation Clause of the Sixth Amendment guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ “ (Delaware v. Van Arsdall (1986) 475 U.S. 673, 678 [106 S. Ct. 1431] (Van Arsdall.) “[T]he right to confrontation [under the Sixth Amendment] includes the right to cross-examine adverse witnesses on matters reflecting on their credibility . . . .” (People v. Quartermain (1997) 16 Cal.4th 600, 623.) “ ‘However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. . . . [U]nless the defendant can show that the prohibited cross-examination would have produced “a significantly different impression of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.’ “ (People v. Chatman (2006) 38 Cal.4th 344, 372.) In Davis v. Alaska (1974) 415 U.S. 308 [94 S.Ct. 1105] (Davis), upon which appellant relies, a safe stolen in a burglary was found near a juvenile’s home. The juvenile was a key witness in the prosecution of two defendants. The juvenile had told the police he had seen two men with a car where the safe was later found and from police mug shots identified one of the defendants as a man he had seen with the car. The juvenile was then on probation for burglarizing two cabins. The prosecutor sought a protective order against disclosure of the juvenile’s probation status and burglary adjudications on the basis that juvenile records are confidential. Defense counsel opposed the order, explaining he wanted to show that at the time the juvenile was identifying men involved in the burglary, he was on probation for burglary and, arguably, could have made “a hasty and faulty identification . . . to shift suspicion away from himself”; he might have been subject to undue police pressure; and he might have made his identifications to avoid having his probation revoked. (Id. at pp. 310-311.) The trial court granted the protective order. The United States Supreme Court reversed. The Supreme Court stated, “[T]he jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the juvenile’s] testimony which provided ‘a crucial link in the proof . . . of petitioner’s act.’ “ (Id. at p. 317.) The Supreme Court rejected the Alaska court’s conclusion that the cross-examination that occurred was sufficient to develop the issue of the juvenile’s bias, explaining that in order to make cross-examination “effective,” defense counsel “should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness,” and therefore the defendant was denied his Sixth Amendment right to confrontation. (Id. at p. 318.)

In a similar vein, in Van Arsdall the United States Supreme Court held the trial court’s ruling that “prohibited all inquiry into the possibility that [a prosecution witness] would be biased as a result of the State’s dismissal of his pending public drunkenness charge” in exchange for his promise to speak with the prosecutor violated the defendant’s constitutional right to confrontation. (Van Arsdall, supra, 475 U.S. at p. 679)

However, in Van Arsdall the witness testified at a hearing outside the presence of the jury, and the prosecution conceded, that a public drunkenness charge had been dismissed in exchange for a promise to speak to the prosecutor about the charged murder, and in Davis it was similarly undisputed that the witness was on probation. Thus, in both Davis and Van Arsdall the factual basis for the challenge to the credibility of the witness--in Davis, that the witness was on probation, and in Van Arsdall, that the witness had a criminal charge dismissed--was a matter of record. Here, by contrast, we have only appellant’s speculation that Officer Cervenka violated the TPD use-of-force policy. This factor distinguishes Davis and Van Arsdall.

“[T]he burden is on appellant to affirmatively show in the record that error was committed by the trial court . . . .” (People v. Alvarez (1996) 49 Cal.App.4th 679, 694.) Appellant has not met this burden. The TPD use-of-force policy is not part of the record, and therefore there is nothing in the record to indicate that the prohibited cross-examination would have cast any doubt on Officer Cervenka’s testimony regarding his use of the taser. Thus, the record does not establish that the prohibited cross-examination would have produced “a significantly different impression of [the witness’s]

credibility . . . .” (Van Arsdall, supra, 475 U.S. at p. 680.)

We note also that Officer Cervenka testified that when appellant got out of his car he faced the officer and his fist clenched, and that use of a taser is justified, inter alia, when a person assumes a fighting stance. Officer Simbalenko, on the other hand, testified he had an unobstructed view of appellant when appellant was facing Officer Cervenka and that he (Officer Simbalenko) did not see appellant clench his fist. Thus, Officer Simbalenko’s testimony in effect contradicted part of Officer Cervenka’s stated justification for deploying the taser. Even assuming that cross-examination of Officer Cervenka on the use-of-force policy would help show that the officer testified untruthfully regarding the justification for his use of the taser, the fact that a fellow officer contradicted Officer Cervenka on this point would be at least as likely, if not more likely, to create doubt in the minds of jurors regarding Officer Cervenka’s truthfulness. For this additional reason, the record does not establish that the prohibited cross-examination would have produced a significantly different impression of Officer Cervenka’s testimony. Thus, for the foregoing reasons, the court did not abuse its discretion in refusing to allow cross-examination of Officer Cervenka on the TPD use-of-force policy.

Moreover, even if the court did erroneously limit appellant’s right to confront witnesses against him, such error was harmless. The constitutionally improper denial of a defendant’s opportunity to cross-examine an adverse witness on matters reflecting on the witness’s credibility is subject to the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18 (Chapman). (Cf. Van Arsdall, supra, 475 U.S. at p. 684 [denial of opportunity to impeach prosecution witness for bias subject to harmless error analysis under Chapman].) “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt,” taking into consideration “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.” (Ibid.) Here, two other police officer witnesses essentially corroborated Officer Cervenka’s testimony on all points necessary to establish appellant committed the instant offense. And, as indicated above, it is unlikely that the proffered cross-examination would have contributed appreciably to the impeachment of Officer Cervenka. Although it is possible, as appellant argues, that Officer Banuelos and Officer Simbalenko “exaggerated things” so as to present to the jury a united front with Officer Cervenka, other than his speculation appellant offers no challenge to the credibility of Officer Cervenka’s fellow officers. Reasonable doubt does not mean any possible doubt. (See CALJIC No. 2.90.) On this record, we conclude beyond a reasonable doubt that even if “the damaging potential of the cross-examination were fully realized,” any error in limiting the cross-examination of Officer Cervenka was harmless. (Van Arsdall, supra, 475 U.S. at p. 684.)

Claim of Instructional Error

Appellant argues that the court told the jury that appellant drove his car with a willful or wanton disregard for the safety of persons or property in an attempt to evade pursuing police, and that the court thus, in effect, instructed the jury that appellant committed a violation of Vehicle Code section 2800.2, thereby violating appellant’s Fourteenth Amendment due process rights and his rights under the Sixth Amendment to have the jury decide questions of fact. He bases this claim on the following instruction:

“Said Jason Leon Scoggins on or about [the] 21st day of May, 2005, at and in the jurisdiction of Stanislaus County, Superior Court, State of California, willfully, unlawfully and feloniously disregarded the siren and lighted red light on a marked patrol vehicle and fled or attempted to elude a pursuing peace officer’s motor vehicle by driving with a willful or wanton disregard for the safety of persons or property with the intent to evade an officer in uniform, as the Complaint and Information so alleges that.”

“[A]n erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury [citations], and whether an erroneous or inartfully phrased instruction misled the jury to the defendant’s prejudice is determined by reviewing the instructions as a whole.” (People v. Owens (1994) 27 Cal.App.4th 1155, 1159.) “The meaning of instructions is no longer determined under a strict test of whether a ‘reasonable juror’ could have understood the charge . . . , but rather under the more tolerant test of whether there is a ‘reasonable likelihood’ that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.” (People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions. (People v. Scott (1988) 200 Cal.App.3d 1090, 1095.)

“ ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.’ “ (People v. Martin (2000) 78 Cal.App.4th 1107, 1111-1112.)

We acknowledge that the challenged instruction is problematic. For purposes of our discussion we find it useful to differentiate between (1) the last clause, “as the Complaint and Information so alleges that,” and (2) all that precedes the last clause. As appellant suggests, when considered in isolation the instruction is susceptible of the interpretation that the court simply told the jury appellant drove recklessly in an attempt to evade a pursuing police officer. Under this interpretation, the last clause merely indicates that act constitutes the offense alleged. However, the instruction is also susceptible of the interpretation that the last clause tells the jury that it was alleged in the complaint and information that appellant drove recklessly in an attempt to evade a pursuing police officer, but does so in a less than artful way by stating last what it should have stated at the outset, viz., that the act set forth in the instruction is alleged. However, in our view it is not reasonably likely the jury adopted the former interpretation and rejected the latter.

First, at no point in the argument of counsel was it suggested that the trial judge had already determined appellant had driven recklessly and therefore the jury need not make that determination. Moreover, the instruction immediately following the challenged instruction told the jury it was “further alleged” that appellant had served a prison term for a prior felony conviction. (Emphasis added.) And the court also instructed the jury as follows: appellant’s plea of not guilty “put[] in issue all of the material allegations of said Information and charges”; the prosecution had the burden of proving appellant’s guilt beyond a reasonable doubt; jurors were the “sole judges of the believability of a witness“; and the jury was to “decide all questions of fact . . . from the evidence received in trial” and “[c]onsider the instructions as a whole and each in light of all of the others.” On this record, there is no reasonable likelihood the jury ascribed to the challenged instruction the meaning urged by appellant.

DISPOSITION

The judgment is affirmed.

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^* Before Levy, Acting P.J., Hill, J., and Kane, J.

^[1] We use the term “strike” to describe a prior felony conviction that subjects a defendant to the increased punishment specified in the “three strikes” law (Pen. Code, §§ 667, subds. (b)-(i); 1170.12).

^[2] Except as otherwise indicated, the remainder of the “Prosecution Case” section of the factual statement is taken from Officer Cervenka’s testimony.

^[3] The remainder of the “Prosecution Case” section of the factual statement is taken from Officer Simbalenko’s testimony.