California Court of Appeal Sep 5, 2013 No. E054719Unpublished
Filed 9/5/13 P. v. Chavez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E054719
v. (Super.Ct.No. RIF10002353)
JOSEPH ANGEL CHAVEZ, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge.
(Retired judge of the former Orange Mun. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.
David Andreasen, 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, Assistant Attorney General, Andrew Mestman and Steve
Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
1
A jury found defendant and appellant Joseph Angel Chavez guilty of attempting
to deter an executive officer from performing his duties or resisting an executive officer
by force or violence (Pen. Code, § 69),1 willfully resisting a peace officer (Pen. Code,
court has the discretion to admit evidence of crimes committed by a defendant other
than the one for which he is charged, if such evidence is relevant to prove some fact at
issue, and if the probative value of the evidence outweighs its prejudicial effect.
[Citation.] “When reviewing the admission of evidence of other offenses, a court must
consider (1) the materiality of the fact to be proved or disproved, (2) the probative value
of the other crime evidence to prove or disprove the fact, and (3) the existence of any
rule or policy requiring exclusion even if the evidence is relevant,”’” such as Evidence
Code section 352. (People v. Spector (2011) 194 Cal.App.4th 1335, 1372-1373.) We
review the trial court’s evidentiary ruling for abuse of discretion. (Id. at p. 1373.)
21
We begin by considering the issue of materiality. Prior to the start of trial, while
arguing against the introduction of the prior crimes evidence, defendant said he planned
to rely on a theory of self-defense. In closing arguments defendant argued a theory of
self-defense. In order to be acquitted on a theory of self-defense, a defendant must
prove he reasonably believed that he was in imminent danger of suffering bodily injury
and reasonably believed that the immediate use of force was necessary to defend against
that danger. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
By arguing a theory of self-defense, defendant made his state of mind a disputed
issue. Whether defendant reasonably believed he needed to defend himself was a
material fact that the prosecution was required to disprove in order for the jury to find
defendant guilty of the charged crimes. Accordingly, the prior offense evidence related
to a material fact—defendant’s state of mind.
Second, we address the probative value of the prior offense evidence. “The least
degree of similarity (between the uncharged act and the charged offense) is required in
order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends
(increasingly with each instance) to negative accident or inadvertence or self-defense or
good faith or other innocent mental state, and tends to establish (provisionally, at least,
though not certainly) the presence of the normal, i.e., criminal, intent accompanying
such an act . . . .’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402, italics
added.)
22
The prior offense evidence reflects that in July 2000, as Deputy Williamson
began to pat-down defendant, defendant turned, raised an elbow, and then ran away.
Williamson chased after defendant, but was unable to locate him. In August 2000,
Deputy Albaran stopped his patrol car near defendant and shined a spotlight on him;
defendant turned around and ran into an apartment. In the current case, in March 2010,
as Davis was placing defendant’s hands behind his back, defendant pulled his arms from
Davis’s grasp, shoved the deputy, and then ran down the street. Davis chased after
defendant in his patrol vehicle and then on foot once defendant ran through a residential
backyard.
The prior offenses are similar to the charged offense because they all involve
defendant running away from a deputy during the initial contact, and appearing to be
under the influence of a controlled substance. In July 2000, defendant appeared to be
under the influence of a controlled substance. In August 2000, four officers were
needed to place defendant in handcuffs. In the current case, defendant tested positive
for amphetamines, and two deputies were needed to place defendant in handcuffs.
The current case concerns defendant’s third time running away from an officer
during the first moments of contact. The prior offense evidence is probative because it
tends to negate defendant’s claim that he was acting in self-defense when shoving Davis
and running away, and it tends to prove defendant had a criminal mindset in committing
the charged acts—not an innocent mindset of self-defense.
23
Third, we consider the possible prejudicial effect of the evidence. Prior offense
evidence is prejudicial when it requires an undue consumption of time, or creates a
substantial danger of confusing the issues or of misleading the jury. (People v. Leon
(2008) 161 Cal.App.4th 149, 168.) The prior crime evidence was presented via the
testimony of two witnesses. Since there were only two witnesses, the prior offense
evidence was not a danger for consuming a great deal of time.
As to confusing or misleading the jury, the crimes occurred 10 years apart, and
the deputies involved in the July 2000, August 2000, and March 2010 incidents all
testified. Thus, it should have been clear to the jury that the incidents were separate due
to the lapse in time and different deputies involved. As a result, there was not a
substantial risk of the jury being confused or misled by the prior crime evidence. In
sum, the trial court’s decision to admit the prior crime evidence was within reason.
Therefore, we conclude the trial court did not err.
Defendant contends the trial court erred because it failed to weigh the prejudicial
effect of the prior offense evidence against the probative value of the evidence. During
the discussion about admitting the evidence, the trial court asked the attorneys if they
had read People v. Ewoldt, supra, 7 Cal.4th 380, because it contained an “[e]ighteen-
page explanation of [Evidence Code section] 1101 and how all of it plays together by
[the] California Supreme Court.” Thus, the trial court was familiar with the case law
related to prior crimes evidence. Nevertheless, the fact is that the record is silent about
the trial court’s views on the prejudicial effect of the prior offense evidence. We do not
assume there is an error when the record is silent; rather, we presume the trial court was
24
aware of and followed the applicable law. (People v. Brown (2007) 147 Cal.App.4th
1213, 1229.) Thus, we find defendant’s argument to be unpersuasive, because we must
presume the trial court followed the law.
Next, defendant asserts the trial court erred because it incorrectly believed it had
to allow the People to present the prior offense evidence due to defendant pleading not
guilty and placing every element of the offense at issue. Defendant’s argument is not
persuasive because this court reviews rulings, not the reasons for the rulings, and
therefore, we will not find an error if the ruling is correct on any basis. (People v. Geier
(2007) 41 Cal.4th 555, 582.) As set forth ante, there was a reasonable basis for the trial
court’s evidentiary ruling.
D. DAVIS’S BELIEFS ABOUT DEFENDANT
1. PROCEDURAL HISTORY
During Davis’s direct examination the following exchange took place:
“[Prosecutor]: What are you thinking—as you’re understanding the scene and
understanding what the call was about—what are you thinking at this point?
“[Davis]: First off that—through my head—is probably burglarizing something
[sic].
“[Defense Counsel]: Objection, speculative. Move to strike.
“The Court: Overruled.
“[Prosecutor]: You’re thinking this could possibly be a burglary suspect?
“[Davis]: Correct.
25
“[Prosecutor]: What about the person or the description that you heard about this
person led you to believe that this could be a burglary suspect?
“[Davis]: Well, the pillow[case] primarily. People will burglarize houses, take
pillow[cases] from the homes and put the stolen property inside pillow[cases]. So that
was the first thought that went through my head.”
As Davis’s testimony continued, the following exchange occurred:
“[Prosecutor]: Would you interact with somebody differently who is on parole
as opposed to somebody who is not on parole?
“[Davis]: I would.
“[Prosecutor]: Describe how that works.
“[Davis]: Well, when someone’s on parole, you know they have been to state
prison. I would treat someone who I know has been to state prison—I would treat them
differently than someone that didn’t, just because, you know, if they’ve been to state
prison that it’s a hard life.
“[Defense Counsel]: Objection. Speculation, foundation. Move to strike.
“The Court: Overruled.
“[Prosecutor]: Are you a little more cautious with people on parole?
“[Davis]: I am.
“[Prosecutor]: Are you concerned for your safety more so dealing with
somebody on parole as opposed to somebody who is not on parole?
“[Davis]: Yes.”
26
2. ANALYSIS
Defendant contends the trial court erred by permitting Davis to testify about his
beliefs that defendant was (1) likely trying to commit a burglary, and (2) an especially
dangerous person due to having been incarcerated. Defendant asserts the evidence was
“based on speculation and lacked foundation.”5 We disagree.
“If a witness is not testifying as an expert, his testimony in the form of an
opinion is limited to such an opinion as is permitted by law, including but not limited to
an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful
to a clear understanding of his testimony.” (Evid. Code, § 800.) “The admission of a
layperson’s opinion testimony lies in the discretion of the trial court and will not be
disturbed ‘“unless a clear abuse of discretion appears. [Citation.]”’ [Citation.]”
(People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33.)
Section 69 requires the prosecutor to prove the deputy was “performing any duty
imposed upon such officer by law.” Section 148, subdivision (a)(1), requires the
prosecutor to prove the deputy was discharging or attempting “to discharge any duty of
his or her office or employment.” Davis opined about defendant likely trying to commit
a burglary because that testimony explained why Davis felt the need to stop and speak
5 The People assert defendant forfeited this argument because on appeal he is asserting the trial court erred due to the evidence inflaming the jury, which was not the basis for the trial court objection. The People appear to be mixing defendant’s error argument with his prejudice argument. On appeal, defendant is asserting the trial court erred by admitting the evidence because it was speculative and lacked foundation, and that the error was prejudicial because the evidence inflamed the jury. Therefore, we disagree that defendant forfeited this argument for appeal because the error argument is the same as that raised below.
27
to defendant. Davis explained that his opinion was based on his perception of the
situation, e.g., defendant was carrying a pillowcase and pillowcases are often used to
carry items out of houses. Thus, Davis’s burglary opinion could reasonably be admitted
as a layperson’s opinion testimony because (1) it was rationally based on Davis’s
perception, and (2) it clarified the material issue of why Davis felt stopping defendant
was a part of his job duties.
As to Davis’s opinion that parolees are more dangerous people, Davis was
explaining why he performs his job duties in a particular manner—why he is more
cautious around parolees. Davis’s testimony helped to clarify the material issue of
whether Davis was lawfully performing his duties, because it provided context to the
interaction between Davis and defendant. If the testimony jumped from defendant
walking down the street to Davis patting down defendant, then the jury likely would
have been confused. The jury needed to understand that Davis believed defendant may
have been planning a burglary, and that Davis felt the need to pat-down defendant, due
to parolees being a more dangerous class of people. In sum, the trial court had a
reasonable basis for overruling defendant’s objections, and therefore we conclude the
court did not abuse its discretion.
Defendant asserts the trial court erred because witnesses may only testify to
matters within their personal knowledge. (Evid. Code, § 702, subd. (a).) Defendant
contends Davis’s opinion testimony was problematic because it was not based solely on
Davis’s observations, but also on the information Davis received from the dispatcher.
Defendant’s argument is not persuasive because Davis testified that his opinion was
28
based upon observing the pillowcase, in that the pillowcase immediately made him
believe defendant was plotting a burglary. Davis personally saw defendant walking
with a pillowcase. Accordingly, Davis’s testimony was based on events he personally
observed, i.e., defendant walking down the street with a pillowcase.
E. PROSECUTORIAL MISCONDUCT
1. PROCEDURAL HISTORY
During closing argument, defense counsel said, “And for as violent or crazy of a
struggle [as] this appeared to be, [Davis] and Deputy Broda walked out unscathed, but
[defendant] ended up in the hospital for three days. So I think it’s pretty clear what did,
in fact, happen. And it was very much excessive force.”
At the beginning of the prosecutor’s rebuttal closing argument, he said,
“[Defendant] was in the hospital for an elevated heart rate. And what causes elevated
heart rates? I submit to you folks, swallowing a gram of methamphetamine. That’s
why he was in the hospital. You are going to see the pictures. Is that somebody who
got the hell beat out of him? Somebody with ‘Try me’ tattooed on his eyelids? Try
me?” At that point, defense counsel objected, saying, “Objection, improper—” The
trial court overruled the objection. The prosecutor resumed his argument saying, “Try
me. That’s this defendant. Try me.”
2. ANALYSIS
Defendant contends the prosecutor committed misconduct by arguing that a
person with the words “try me” tattooed on his eyelids was not a victim of excessive
29
force. Defendant asserts that portion of the prosecutor’s argument was irrelevant and
inflammatory. We disagree.
“Under the federal Constitution, a prosecutor’s behavior deprives a defendant of
his rights ‘when it comprises a pattern of conduct “so egregious that it infects the trial
with such unfairness as to make the conviction a denial of due process.”’ [Citations.]
Conduct that falls short of that standard ‘may still constitute misconduct under state law
if it involves the use of deceptive or reprehensible methods to persuade the trial court or
the jury.’ [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 370-371.)
“[A] prosecutor is given wide latitude during argument. The argument may be
vigorous as long as it amounts to fair comment on the evidence, which can include
reasonable inferences, or deductions to be drawn therefrom. . . . [Citation.] A
prosecutor may vigorously argue his case[.] [Citations.] To prevail on a claim of
prosecutorial misconduct based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the complained-of comments in an
improper or erroneous manner. [Citation.]” (People v. Gamache, supra, 48 Cal.4th at
p. 371, internal quotations omitted.)
Defendant’s tattoos were part of the photographs submitted as evidence. The
prosecutor commented on defendant’s tattoos when explaining to the jury that it was
unlikely defendant was in the hospital for three days due only to the actions of the
deputies. The prosecutor believed that if a person with “try me” tattooed on his eyelids
were put in the hospital for three days due to a fight, then the other people involved in
the fight would not have walked away so easily. The prosecutor’s point was that
30
defendant was in the hospital due to ingesting a gram of methamphetamine—not due to
excessive brutality on the part of the deputies.
In commenting on defendant’s tattoos, the prosecutor was citing evidence and
giving his interpretation of that evidence. Therefore, the prosecutor’s comments were
not misconduct, because it is unlikely that the jury understood the comments to be
anything other than the prosecutor expressing his belief that a person with “try me”
tattooed on his eyelids would not be in a hospital for three days due solely to a fight,
when the other people involved in the fight walked away relatively unscathed.
Defendant asserts the prosecutor committed misconduct because he told the jury
to use defendant’s tattoos as propensity evidence—evidence that defendant “is the kind
of person who resists arrest and needs to be dealt with by extreme methods.” We are
reviewing the argument to determine whether there is a reasonable likelihood the jury
applied the comments in an improper manner. The context of the prosecutor’s
statements causes defendant’s interpretation of the statements to be unreasonable. The
prosecutor discussed defendant’s tattoos to explain why defendant was in the hospital
for three days, and how it was unlikely that defendant was in the hospital due solely to
the fight with the deputies. Defendant’s interpretation of the prosecutor’s statements
appears to lift the statements entirely out of context, which is not reasonable. Thus, we
find defendant’s argument to be unpersuasive.
31
F. INITIAL DETENTION INSTRUCTION
1. PROCEDURAL HISTORY
The trial court instructed the jury with CALCRIM No. 2670, which provides, in
relevant part: “A peace officer is not lawfully performing his or her duties if he or she
is unlawfully arresting or detaining someone or using unreasonable or excessive force
when making or attempting to make an otherwise lawful arrest or detention. [¶] A
peace officer may legally detain someone if the person consents to the detention or if:
[¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the
person to be detained has been, is, or is about to be involved in activity relating to
crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the
same suspicion. [¶] Any other detention is unlawful. [¶] In deciding whether the
detention was lawful, consider evidence of the officer’s training and experience and all
the circumstances known by the officer when he or she detained the person.”
2. ANALYSIS
Defendant asserts the jury was incorrectly instructed with CALCRIM No. 2670
because there is not substantial evidence supporting the theories that defendant
consented to the detention or that Davis had a reasonable suspicion defendant was
involved in criminal activity. We disagree.
“‘[A] trial judge must only give those instructions which are supported by
substantial evidence[.]’ [Citations.]” (People v. Larsen (2012) 205 Cal.App.4th 810,
823.) “Substantial evidence in this context ‘“is ‘evidence sufficient “to deserve
consideration by the jury,” not “whenever any evidence is presented, no matter how
32
weak.”’” [Citations.]’ [Citation.]” (Ibid.) We review alleged instructional errors de
novo. (People v. Burch (2007) 148 Cal.App.4th 862, 870.)
We first address the consent portion of CALCRIM No. 2670. Davis testified that
a person on parole is “still sentenced” and had surrendered his right to search and
seizure. Davis explained, “[I]f you’re on parole you’re subject to search without cause.”
Davis stated that he recognized defendant as an active parolee when defendant was
walking down the street, because defendant’s photograph was included in a binder or
database of active parolees in the Rubidoux area, which Davis frequently reviewed.
After the incident with defendant, Davis verified that defendant was on parole at the
time of the incident. The foregoing is substantial evidence that defendant consented to
being stopped and searched when he accepted the terms of his parole. Thus, the trial
court could properly instruct the jury with CALCRIM No. 2670.
Second, as to Davis’s reasonable suspicion defendant was involved in
committing a crime, Davis explained his belief that defendant was planning a burglary.
Davis was dispatched following a 911 call from a woman who had a man knock on her
door, ask for an electrical cord for a lawnmower, and who claimed to live next door in a
vacant house. Defendant matched the description of the man who knocked on the
woman’s door, and he was walking down the street where the woman’s house was
located. Defendant was carrying a pillowcase as he walked down the street. Due to the
pillowcase, Davis believed defendant might be planning to burglarize a house because,
“[p]eople will burglarize houses, take pillow[cases] from the homes and put the stolen
property inside pillow[cases].”
33
The foregoing evidence reflects suspicious behavior on defendant’s part.
Knocking on a person’s door and claiming to live in a vacant house, followed by
walking down the street with a pillowcase, are activities that would cause a reasonable
person to suspect defendant was involved in criminal activity. Thus, the record includes
substantial evidence from which the jury could reasonably conclude Davis suspected
defendant had been or was about to be involved in activity relating to crime, and that a
reasonable officer who knew the same facts would have the same suspicion.
Accordingly, the trial court did not err by instructing the jury with CALCRIM No.
2670.
G. SEARCH AND ARREST INSTRUCTION
Defendant contends the trial court erred by instructing the jury with CALCRIM
No. 2670 because it only gave the jury information about lawful detentions. Defendant
asserts that since he was accused of resisting an officer during a detention and search,
the jury also needed to be instructed on the law related to a proper search. We disagree.
CALCRIM No. 2673 describes lawful pat-down searches. The bench notes for
CALCRIM No. 2673 read only, “The court may give this instruction on request.” It
does not appear from the record that the defense requested CALCRIM No. 2673.
Nevertheless, to the extent the trial court has a sua sponte duty to instruct with
CALCRIM No. 2673, we conclude an error did not occur in this case.
As set forth ante, “‘[A] trial judge must only give those instructions which are
supported by substantial evidence . . . .’ [Citations.]” (People v. Larsen, supra, 205
Cal.App.4th at p. 823.) Davis testified that he was placing defendant’s hands behind his
34
back in order to begin the pat-down when defendant “pulled his arms free from
[Davis’s] grasp, shoved [Davis], and ran . . . away.” Thus, Davis was not patting-down
defendant when defendant broke away and ran. Rather, Davis was holding defendant’s
arms behind defendant’s back. Given the foregoing evidence, we conclude the trial
court did not err by not instructing the jury with CALCRIM No. 2673, because a search
was not taking place.
H. SECTION 834, SUBDIVISION A
Defendant asserts the trial court erred by including information about section
834a in the CALCRIM No. 2670 instruction. The portion of CALCRIM No. 2670
defendant is alleging to be erroneous is as follows: “If a person knows, or reasonably
should know, that a peace officer is arresting or detaining him or her, the person must
not use force or any weapon to resist an officer’s use of reasonable force.” (CALCRIM
No. 2670; § 834a.) Defendant asserts this portion of the instruction gives the erroneous
impression that a person may never use force against a law enforcement officer, even in
the situation where the law enforcement officer is conducting an unlawful arrest.
Defendant contends this is problematic because it was undisputed that he used force
against Davis, and therefore this instruction “had the effect of eliminating the lawful
performance element of the resisting charges.” We disagree.
A defendant has a right to have the jury determine every element of the charged
offenses. (People v. Flood (1998) 18 Cal.4th 470, 480-481.) “We determine whether a
jury instruction correctly states the law under the independent or de novo standard of
review. [Citation.] Review of the adequacy of instructions is based on whether the trial
35
court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In determining
whether error has been committed in giving or not giving jury instructions, we must
consider the instructions as a whole . . . [and] assume that the jurors are intelligent
persons and capable of understanding and correlating all jury instructions which are
given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to
support the judgment rather than defeat it if they are reasonably susceptible to such
interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
If a trial court includes the section 834a law when instructing the jury about
resisting arrest in a case involving allegations of excessive force, then the trial court
must explain to the jury that the person being arrested “has the right to use reasonable
force to protect himself.” (People v. White (1980) 101 Cal.App.3d 161, 168.) The trial
court can fulfill this duty by instructing the jury on the law of self-defense. (Ibid.)
In the instant case, the trial court instructed the jury on the law of self-defense
with CALCRIM No. 3470. Additionally, within CALCRIM No. 2670, the trial court
instructed the jury, “If a peace officer uses unreasonable or excessive force while
detaining or attempting to detain a person, that person may lawfully use reasonable
force to defend himself or herself.” Given that the jury was told about defendant’s right
of self-defense in two separate instructions, it is likely the jury understood defendant
had the right to defend himself from excessive force and that he did not have to simply
submit to unlawful force or arrest by the deputy.
36
The argument presented by defendant isolates one section of CALCRIM No.
2670. We cannot read the instruction in isolation. We must read the instructions as a
whole. In this case, the jury was given plentiful information about the law of self-
defense. Therefore, defendant’s isolation of a few lines from one instruction is not
persuasive because he does not look at the instructions in a holistic manner.
I. EX PARTE JURY RESPONSES
1. PROCEDURAL HISTORY
After closing arguments, defendant agreed that he did not need to be present if
the jury submitted a question and everyone agreed on an answer. However, the trial
court said, “If something comes up that’s important like they’re talking about verdicts or
not being able to reach verdicts or something like that, and your attorney wants you
because she wants to hear from you, we’ll get you here. Okay?” Defendant responded,
“Okay.”
On July 12, 2011, at 2:26 p.m., the jury submitted a question. The jury asked,
“What is the legal definition of ‘use of force and violence?’ (As referenced in element 1
of Count 1)[.]” The trial court contacted trial counsel via telephone, and counsel agreed
with the trial court’s response. The trial court responded, in writing, “Reread my first
instruction.”
On July 13, 2011, the jury submitted questions at 9:47 a.m., 10:49 a.m., 10:50
a.m., and 2:00 p.m. The trial attorneys were only contacted for purposes of answering
the question posed at 2:00. The comment received at 9:47 a.m. read, “Cannot reach
[unanimous] decision on Count 1 after much deliberation.” The trial court responded,
37
“Keep working.” At 10:49 a.m., the jury asked to hear portions of Davis’s testimony.
The trial court responded, “Ok.” At 10:50 a.m., the jury asked, “What does the law
state about touching an officer who is performing his legal duty? Is breaking free of the
officer considered ‘use of force’ when a person is detained for search?” The trial court
responded, “That is the question.”
At 2:00, the jury submitted the following question, “#3500 says ‘You must not
find the defendant guilty unless you all agree . . . ’ #3550 states ‘If you are able to reach
a [unanimous] decision on only one or only some of the charges, fill in that verdict form
only . . .’ We cannot come to a [unanimous] decision on Count 1. Therefore do we
complete the ‘Not Guilty’ verdict form for Count 1, or leave blank since we cannot
come to an agreement?” The trial court responded, “Wait—we will talk.”
After the 2:00 question was received, the trial court contacted the trial attorneys.
The trial attorneys and defendant were present in court when the trial court brought the
jurors into the courtroom. At that point, the jury had reached verdicts on Counts 2 and
3, and submitted the verdict forms to the court’s bailiff. The trial court asked the jury
foreperson about the first question that was submitted. The trial court said, “I think
your first question [was], ‘What does force and violence mean?’” The trial court
explained that it responded with the answer that there is no legal definition and the
ordinary definitions should be applied.
38
Next, the trial court said the jury submitted a note reflecting it could not reach a
verdict, and the court responded by telling them to continue working. Then the trial
court described the jury’s request for Davis’s testimony to be read back. The court
explained that it authorized the read back. The foreperson confirmed the read back took
place. The trial court then described the note wherein the jury asked if breaking free
from an officer’s grasp is considered use of force. The trial court stated it responded by
telling the jury, “[T]hat’s a question you have to answer.”
The trial court then reached the jury’s question about CALCRIM No. 3500,
which concerns unanimity. Upon looking at the jury’s question, the trial court asked the
prosecutor if he had a copy of CALCRIM No. 3500 in front of him, which the
prosecutor did not. The trial court read CALCRIM No. 3500 aloud, which concerned
the jury agreeing to the specific act that comprised Count 1. The trial court spoke to the
foreperson, who clarified the jury could not agree on whether defendant’s pushing
Davis’s hands constituted force.
The jury was split “[n]ine, two, and one,” and had been split in that manner for
approximately one day, with no one changing his or her mind. The trial court asked if
there was anything it could do to assist the jurors. The foreperson responded, just
answering the questions the jury submitted. The foreperson asked for clarification
regarding one of the trial court’s responses. The foreperson asked, “What does the law
say about if an officer has somebody detained, what can a person that’s detained do to
that officer? Can they do anything? Or if they react in any way outside of compliance,
39
that’s what we were—again, is that force? So they willfully pull away without being
instructed to do so by the officer?”
The trial court clarified that the question concerned the meaning of the term
force. The following exchange then took place:
“The Court: Force means force. Go back to work.
“[Foreperson]: We understand that, but that’s not changing the minds of some.
“The Court: Go back. And force means force. It doesn’t have lots, it does not
have small, it doesn’t have anything. It’s just force. That’s all it is. Is force used? So
you go out and figure out what force means. If you cannot figure out what force means,
we picked 12 people that are not as smart as we thought. Go. Take your notebooks.
We ain’t done folks. Keep working.”
At that point, the jury left to resume its deliberations. Sixteen minutes later, the
jury returned a verdict for Count 1.
2. ANALYSIS
Defendant asserts the trial court violated his rights of due process and assistance
of counsel by responding to the jury’s questions ex parte. Specifically, defendant
focuses on (1) the 9:47 a.m. comment about not being able to reach a unanimous
verdict, to which the trial court responded, “Keep working”; and (2) the 10:50 a.m.
question about what the term “force” means and whether breaking free from a law
enforcement officer’s grasp could be considered force, to which the trial court
responded, “That is the question.” The People assert (1) defendant waived this issue by
40
not raising it at the trial court, and (2) any error was harmless. We choose to address the
merits of defendant’s argument, and conclude the trial court did not err.
Section 1138 provides: “After the jury have retired for deliberation, if there be
any disagreement between them as to the testimony, or if they desire to be informed on
any point of law arising in the case, they must require the officer to conduct them into
court. Upon being brought into court, the information required must be given in the
presence of, or after notice to, the prosecuting attorney, and the defendant or his
counsel, or after they have been called.” Thus, a judge is not permitted to have private
communications with the jury unless defendant and the prosecutor have agreed to such
communications. (Bradford, supra, 154 Cal.App.4th at p. 1413.) These private
communications are generally not permitted because a defendant needs to be given the
opportunity to (1) evaluate the proposed judicial response to a jury question, (2) make
an objection to the proposed response, and (3) suggest a different response that may be
more favorable to the defendant. (Ibid.)
“When the jury’s inquiry arises in a situation where ‘counsel could have taken
some action on the defendant’s behalf to amplify, clarify, or modify the supplemental
instruction or procedure,’ a ‘court’s failure to give notice or afford an opportunity to
respond [to the jury’s inquiry] . . . constitute[s] statutory as well as constitutional error.’
[Citation.]” (Bradford, supra, 154 Cal.App.4th at p. 1413.)
41
The comment received at 9:47 a.m. read, “Cannot reach [unanimous] decision on
Count 1 after much deliberation.” The trial court responded, “Keep working.” When
the trial court gathered defendant, defense counsel, the prosecutor, and the jury in the
courtroom, at approximately 2:30 p.m., the foreperson said the jury was still deadlocked
on Count 1 and no one had changed their minds since they started deliberating the
previous day. The trial court then discussed the issue with the jury while defendant,
defense counsel, and the prosecutor were present. Thus, while the trial court may have
engaged in an ex parte communication with the jury by responding “keep working,” the
court ultimately spoke to the jury about the problem while counsel and defendant were
present, and before any jurors had changed their minds about the situation. During the
conversation, defense counsel did not object or raise any concerns about the trial court’s
remarks. Accordingly, we conclude the trial court did not err, because to the extent any
error may have occurred with the note to the jury, the trial court cured the mistake by
gathering everyone together for a discussion before any jurors changed their positions
regarding Count 1.
The same reasoning applies to the 10:50 a.m. question in which the jury asked,
“What does the law state about touching an officer who is performing his legal duty? Is
breaking free of the officer considered use of force when a person is detained for
search?” The trial court responded in writing, “That is the question.” When the trial
court gathered everyone together in the courtroom, the foreperson again asked whether
defendant breaking away from Davis constituted force. As set forth ante, a
conversation took place regarding force having a plain, non-legal meaning. During that
42
conversation, defense counsel did not object or make any suggestions as to how the trial
court could better answer the jury’s question.
So again, given that the jurors were still deadlocked on Count 1 in the same
positions they had been since deliberations began, any error the trial court made by
responding in writing to the jury was cured by gathering everyone together in the
courtroom for a discussion of the same question raised in the 10:50 a.m. note. Thus, we
conclude the trial court did not err, because any error was fixed below.
Defendant’s argument focuses on the trial court’s written responses to the jury’s
questions, and ignores the conversation that took place with everyone present in the
courtroom. Given that the trial court discussed the issues in the jury’s notes with
everyone present in the courtroom, prior to any jurors changing their minds about Count
1, we find defendant’s argument to be unpersuasive.
Next, defendant asserts counsel did not have an opportunity to object or make a
suggestion about the trial court’s responses to the jury because the trial court began
speaking to the foreperson as soon as everyone was gathered together in the courtroom.
Defendant asserts his counsel should have been given the trial court’s proposed answers
to the jury’s questions, and anything less is a violation of his rights. We do not find this
argument to be persuasive because when the trial court gathered everyone together in
the courtroom there was a conversation about the status of the jury’s deliberations—
such as where they stood on all three counts—prior to the court delving into the jury’s
questions. If defense counsel wanted to speak to the trial court outside the presence of
the jury, there was ample opportunity to raise an objection or request a chambers
43
conference. The trial court did not blindside counsel by immediately responding to the
jury’s questions the moment everyone gathered in the courtroom. As a result, we find
defendant’s argument to be unpersuasive.
J. COERCING THE JURY
Defendant contends the trial court erred by coercing the jury into reaching a
verdict for Count 1.6 The People assert defendant has failed to preserve this claim of
judicial misconduct and that the trial court’s comments were not coercive. We choose
to address the merits of defendant’s contention because the issue is easily resolved.
Section 1140 provides: “Except as provided by law, the jury cannot be
discharged after the cause is submitted to them until they have agreed upon their verdict
and rendered it in open court, unless by consent of both parties, entered upon the
minutes, or unless, at the expiration of such time as the court may deem proper, it
satisfactorily appears that there is no reasonable probability that the jury can agree.”
Our Supreme Court has provided further insight into this rule: “‘Although the
court must take care to exercise its power without coercing the jury into abdicating its
independent judgment in favor of considerations of compromise and expediency
[citation], the court may direct further deliberations upon its reasonable conclusion that
such direction would be perceived “‘as a means of enabling the jurors to enhance their
understanding of the case rather than as mere pressure to reach a verdict on the basis of
6 The procedural history for this issue is set forth ante; we do not repeat it here.
44
matters already discussed and considered.’”’ [Citation.]” (People v. Bell (2007) 40
Cal.4th 582, 616.)
In the instant case, the trial court discussed the meaning of the term “force” with
the jurors prior to returning them to their deliberations. The trial court seemed to
suggest that the jurors were overcomplicating the term—looking for a legal definition
when the ordinary definition applied. The trial court reminded the jury of the question
they needed to answer, “Is force used?” Thus, the trial court’s comments were not
coercing the jury to reach a verdict. Notably, the trial court took great care to not have
the votes revealed as far as guilt or innocence were concerned. Thus, the trial court had
no insight as to whether the 9-2-1 split was leaning toward guilt or innocence. The trial
court simply wanted the jury to continue its discussions with a greater understanding of
the term “force” and the task at hand.
Moreover, the jury’s deliberations began at 11:24 a.m. on July 12 and ended at
4:00 p.m. that day. The next day, deliberations began at 9:40 a.m. and the conversation
with the trial court took place at 2:34 p.m. Thus, assuming the jurors never took a
break, they had been deliberating for only nine and a half hours when the trial court
instructed them to resume deliberations. Our Supreme Court has upheld trial courts’
denials of mistrials after fruitless deliberations lasting longer than 10 hours. (People v.
Bell, supra, 40 Cal.4th at p. 617.) Accordingly, the trial court did not return the jury to
lengthy deliberations that had been going on for multiple full days. In sum, we
conclude the trial court did not coerce the jury. Rather, the trial court enhanced the
jury’s understanding of the case and returned them to their deliberations.
45
Defendant contends the trial court coerced the jury because the jury understood
on the first day of deliberations what the term “force” meant, and was at an impasse
over whether defendant’s conduct qualified as force. Defendant argues, “[T]he court’s
telling the jury to ‘go out and figure out what force means’ was nothing more than a
demand that the jurors agree on whether force was used.” Defendant combines this
with the trial court’s comments about the jurors not being terribly smart if they did not
understand the word “force,” and concludes the trial court “went beyond coercion” and
was “bullying” the jury.
Defendant’s argument is not persuasive because during the discussion in the
courtroom, the foreperson asked the trial court, “What does the law say about if an
officer has somebody detained, what can a person that’s detained do to that officer?
Can they do anything? Or if they react in any way outside of compliance, that’s what
we were—again, is that force? So they willfully pull away without being instructed to
do so by the officer.” (Italics added.) The trial court’s response clarified that there was
no special legal definition of the term, and it was the jury’s task to decide if the facts
presented amounted to “force” under the common meaning of the term. Thus, the trial
court clarified an issue in the case for the jury and returned them to their deliberations.
The trial court did not coerce or bully the jury.
K. CUMULATIVE ERROR
Defendant asserts the foregoing 10 alleged errors combined to create a denial of
due process. Thus far we have concluded the trial court and prosecutor did not err.
Therefore, defendant’s “cumulative effect” argument is unpersuasive. (See In re Reno
46
(2012) 55 Cal.4th 428, 482 [rejecting a cumulative effect argument where no errors
were found].)
L. LESSER INCLUDED OFFENSE
Defendant asserts his Count 2 conviction for violating section 148, subdivision
(a)(1) must be reversed because it is a lesser included offense of section 69, which he
was convicted of in Count 1, and the two convictions are based upon the same conduct.
The People dispute that section 148, subdivision (a)(1) is a lesser included
offense of section 69, and fault defendant for relying on the prosecutor’s closing
argument and jury instructions in making his point about the lesser included offense—as
opposed to the statutory elements or charging document.
“The definition of a lesser necessarily included offense is technical and relatively
clear. Under California law, a lesser offense is necessarily included in a greater offense
if either the statutory elements of the greater offense, or the facts actually alleged in the
accusatory pleading, include all the elements of the lesser offense, such that the greater
cannot be committed without also committing the lesser.” (People v. Birks (1998) 19
Cal.4th 108, 117.)
For reference we provide the language of the two statutes. Section 69 provides:
“Every person who attempts, 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 who
knowingly resists, by the use of force or violence, such officer, in the performance of
his duty, is punishable” by a fine, imprisonment, or both.
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Section 148, subdivision (a)(1), provides: “Every person who willfully resists,
delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge
any duty of his or her office or employment, when no other punishment is prescribed,
shall be punished by a fine,” imprisonment, or both.
There is a split of authority in the Courts of Appeal as to whether resisting a
peace officer (§ 148, subd. (a)(1)) is a lesser included offense of resisting an executive
decision on the discoverability of material in police personnel files is reviewable under
an abuse of discretion standard. [Citation.]” (People v. Jackson (1996) 13 Cal.4th
1164, 1220-1221.)
52
In defendant’s Pitchess motion, he sought “information regarding any excessive
use of force, misstatements in police reports, character, habits, customs and credibility
of the involved officer(s) in this case.” Defendant further argued that it was
unconstitutional to limit the information to a five-year time period. Defendant asserted
he should be permitted access to all relevant information regardless of the time elapsed.
We have reviewed the Pitchess hearing transcripts. The only discoverable
incident involved Davis striking Mendoza on May 26, 2007, which was disclosed to
defendant. Accordingly, we conclude the trial court did not err.
O. DISQUALIFICATION
Defendant asserts this court should disqualify Judge Law from presiding over
this case upon remand. We have have found one error, which would not require an
exercise of discretion by Judge Law upon remand. Accordingly, we do not further
address defendant’s disqualification contention because it is moot. (People v.
Gregerson, supra, 202 Cal.App.4th at p. 321 [an issue is moot when a court’s ruling
would have no practical effect].)
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DISPOSITION
Defendant’s conviction in Count 2 (§ 148, subd. (a)(1)) is reversed. The trial
court is directed to amend the October 5, 2011, minute order to reflect defendant does
not have a sentence for Count 2. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RICHLI Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the defendant's convictions for resisting an executive officer and being under the influence of a controlled substance, while reversing the conviction for resisting a peace officer as a lesser included offense. The court held that the defendant forfeited his claim regarding the destruction of evidence by failing to request an evidentiary hearing and that any error in excluding evidence of a deputy's prior use of force was harmless.
Issues
Whether the trial court erred in denying the defendant's motion regarding the state's failure to preserve evidence.
Whether the trial court erred in its evidentiary rulings concerning a deputy's prior use of force.
Whether the conviction for resisting a peace officer must be vacated as a lesser included offense of resisting an executive officer.
Disposition. Affirmed in part; reversed in part with directions.
Quotations verified verbatim against the opinion
“The state’s responsibility is further limited when the defendant challenges the failure to preserve evidence “of which no more can be said than that it could have been subjected to tests” that might have helped the defense.”