Opinion
NOT TO BE PUBLISHED
Kline, P.J.
Sonoma County Super. Ct. No. 34856J
B.P. (appellant) appeals after the juvenile court sustained a juvenile wardship petition (Welf. & Inst. Code, § 602), alleging that appellant delayed peace officers in the performance of their duties, and placed him on probation. On appeal, appellant contends (1) there was insufficient evidence that his conduct delayed any officer in the performance of his duties, and (2) the trial court abused its discretion when it excluded evidence of prior misconduct by the arresting officer. We shall affirm.
PROCEDURAL BACKGROUND
On September 25, 2007, the District Attorney filed an original juvenile wardship petition, pursuant to Welfare and Institutions Code section 602, subdivision (a), alleging that appellant had delayed peace officers in the performance of their duties (Pen. Code, § 148, subd. (a)(1)).
The petition had originally stated that appellant “did willfully and unlawfully resist, delay and obstruct” the officers, but the prosecution later amended the petition and proceeded solely on the “delay” allegation.
On April 2, 2008, at the contested jurisdictional hearing, the trial court found true the allegation and sustained the petition.
At the April 25, 2008 dispositional hearing, the court placed appellant on probation, with various conditions.
On May 12, 2008, appellant filed a notice of appeal.
FACTUAL BACKGROUND
Prosecution Case
Sonoma County Deputy Sheriff Eric Salkin, who was a member of a multi-agency gang task force, testified that at approximately 9:40 p.m. on July 28, 2007, he and his partner were conducting gang surveillance at the rear of Jacobs Park and Lincoln Elementary School in Santa Rosa, an area which, in his experience, had a problem with gang activity. As they looked over the fence of a private residence at the park/school, they noticed a group of 25 to 30 males dressed in black or black and blue. In his experience, “a large group hanging at that park, that particular park or that park/school at night wearing those colors possibly associated with Sureno gang members.” Some of them were drinking 40-ounce beers and others were drinking what appeared to be beer from aluminum cans.
Photographs Salkin later took at the scene showed a couple of cases of malt liquor and other bottles and cans of malt liquor on the ground.
In addition to drinking, at least a dozen of the males were in a loose semicircle, observing two people practicing what appeared to be techniques for escaping from police during the arrest process. The first person would stand with his fingers interlaced behind his head and the second person would approach from behind and grab the first person, with one hand onto the interlaced hands and the other hand doing a pat search, as officers do “during the handcuff process.” The first person would then “explode, twist around and break free from the person pretending to be the officer... and then they would stop. They then switched roles.” Over three to five minutes, the officers observed several different people taking a turn playing these roles.
Salkin radioed dispatch and requested that other officers be sent to different points in the park to attempt to seal it off, to thwart any attempts to escape. Salkin and his partner then scaled the fence and lay flat on the ground near the group of males. When the first deputy arrived on West 9th Street (at the front of the park/school), someone whistled and the entire group began running toward West 9th Street, with some breaking off and running along the fence line at the back of the park.
Salkin began chasing a group of seven subjects, including appellant, who were heading toward West 9th Street. As he ran after them, he yelled, “Gang task force” and “Stop” several times. The group separated near West 9th, with appellant and one other subject breaking off from the other five, who went eastbound toward a taco truck, where they were detained. Salkin continued to pursue appellant and the other subject as they went around a backstop in the park and onto the sidewalk on West 9th Street. He saw a Santa Rosa police car driving right up to them, to cut them off. He said into his radio, hoping that the officer was listening to a scanner, “Them right there, them right there, those guys right there, right there.”
As Salkin ran up, Officer Clark had appellant on the ground, and Salkin assisted in the handcuffing process. Appellant was yelling and kicking his legs “in a fashion like throwing a tantrum.” He was angry and yelled “PSC” several times. In Salkin’s professional opinion, “PSC is a local subset of the Surenos. It stands for Puro Sureno Cholo.” Then, as Officer Clark handcuffed the second person, Salkin ran after the “next group.”
On cross-examination, Salkin acknowledged that he did not see appellant holding a beer in the park and that learning how to break law enforcement holds is not a criminal violation. He also testified that appellant was initially placed under arrest for a “resisting arrest,” but “when he began kicking and resisting further, and my legs were—came in contact with his, then that’s when I formed the opinion that I’m going to charge him with battery as well.” Salkin completed the booking sheet for appellant “during and after” appellant had his intake with the juvenile intake probation officer. However, he told appellant that he would be charged with a felony—battery—both during the booking process and at the scene. Page one of Salkin’s report stated that appellant was arrested for battery; he did not put that information in the body of his report because it was redundant.
In response to defense counsel’s question, “Officer, isn’t it true that upon contact you kicked [appellant] in the stomach, upon his arrest?” Salkin said, “That’s absolutely false.” Salkin also believed it was false that appellant chipped a tooth when he went to the ground during the arrest. In response to a question by the court, Salkin said that he “saw Officer Clark taking [appellant] down to the ground onto his abdomen,” with “his back facing up.” Salkin’s attention was divided between several things, but it looked like Clark used his hands to pull appellant to the ground while ordering him to go to the ground. As Clark held appellant down, Salkin ran up and helped Clark hold him down as he struggled and kicked and yelled gang slogans, “with probably my knee in his back and bringing his arms behind him for the handcuffing process, together.” As soon as the handcuffs were on, Salkin immediately got up and ran across West 9th after two more people, whom he arrested.
Salkin also testified that the person arrested with appellant struggled so violently that he was placed in maximum restraints.
After his arrest, appellant complained of an injury to his mouth and his abdominal area. Salkin took photographs of those areas; no visible signs of injury were present.
California Highway Patrol Officer William Harm, who was Deputy Salkin’s partner on the gang task force, testified as an expert on gangs that the people he and Salkin were observing in the park were Sureno gang members. It is typical for Sureno gang members to carry weapons on their persons.
Santa Rosa Police Officer Mike Clark testified that, on the night of appellant’s arrest, he was in the area of West 9th Street when he heard on his radio that gang members were scattering and running from uniformed officers. He also heard that officers were on foot pursuit through Jacobs Park toward West 9th and Clark drove to a location near a baseball diamond and backstop in the park. Once there, he heard Salkin on the radio saying, “That’s them, that’s them, right there.”
Clark looked to his right and could see appellant and another person running; both were wearing all black clothing. They slowed to a jog and came north toward West 9th, directly toward Clark. Both appellant and the other male had their hands in their pockets and kept walking, veering eastbound away from Clark. Clark, who had gotten out of his car and pointed his gun at them, yelled several times to show him their hands and get on the ground. They did not stop walking, however, and appellant responded, “No. What’s the allegation?”
Clark tried to head off appellant and the other person as they veered eastbound by walking parallel to them toward the sidewalk, closing the distance between them as they tried to walk away. Clark had his gun in his hand, but appellant continued to disobey his commands. Clark then kicked appellant, using his “right leg as a personal body weapon across his midsection. When he bent over, it allowed me... to holster up and put him into a prone position on the pavement.” At about that time, Deputy Salkin showed up and Clark assisted him in cuffing appellant. Appellant was yelling profanities, kicking, and flailing. It took less than a minute from when Clark kicked appellant until he was in handcuffs. Another officer was struggling with the other person and, after cuffing appellant, Clark got up and helped the other officer. Clark did not see Salkin kick or strike appellant.
In Clark’s experience, when suspects disobey commands and have their hands in their pockets, it potentially means they are armed. Here, he also knew, from listening to his radio, that these two people were likely gang members, with whom he was alone and who were not complying.
Defense Case
Synthia Soladay, was an intake supervisor at juvenile hall. Intake duties include booking minors into juvenile hall and determining if they need medical clearance. On July 29, 2007, a group of six to seven young men was brought in. Appellant was one of them. She believed he had been charged with possession of alcohol and resisting arrest.
Soladay went into appellant’s holding cell and asked how he was feeling, in light of the alcohol charge. Appellant said he had been kicked in the gut by the officer. He made no other allegations regarding injuries to his body. She called in Deputy Salkin and told him what appellant had just said. Salkin denied kicking appellant, but then addressed appellant, saying “something to the effect that if there was that much of a physical exchange between them, or—I don’t know, again, the word he used, but he said then in that case that there were additional charges.” Soladay did not know what charges were listed on appellant’s booking sheet. Also, many times, officers call later and ask for additional charges to be added.
Soladay wrote a report regarding this incident, which she would do when there was “something unusual” in the booking process. There was also a question of the medical clearance since appellant had said he had been kicked in the gut. The normal procedure would be to send him to the hospital with the officer, but since there was a conflict here, she thought it was a bad idea to send appellant with the officer he was accusing, for both of their safety.
Initially, Soladay was surprised that the officer said he would add additional charges. But, “in hindsight, I realize with all those kids, it might have been something that he had to kind of sort out, who he had conflicts with and who maybe he didn’t, when he was dealing with that many kids. So in hindsight I thought maybe it made perfect sense.”
Appellant testified on his own behalf. He said he was not in the park drinking alcohol that night. He, his brother Giovanny, and his friends Luigi and Brandon were waiting for a ride near a taco truck when Deputy Salkin approached in a black car and yelled, “Gang task, don’t fucking move or I’ll shoot.” Appellant put his hands on his head and then Salkin, who had a gun out, kicked him. According to appellant, Officer Clark was not at the scene; appellant had never seen him before. He was sure the officer was Salkin because he was the only bald officer there. After kicking him, Salkin threw him down and then picked him up again. Appellant asked for Salkin’s badge number, which Salkin gave him (and which he forgot), before throwing him down again. Appellant hit the floor with his face and felt his tooth break. Salkin then dragged him, picked him up and put him on the sidewalk, telling him not to move. Appellant complained about being kicked to the deputy sheriff who drove him to juvenile hall and to the people who worked there.
Appellant never tried to hit or kick the officer. Nor did he yell any gang slogans or epithets. He did not yell at an officer, “What are the allegations?” He never ran away from Salkin. He had never been in a gang and had no friends or associates who were gang members. Appellant suffered a hurt face and stomach, two chipped teeth, and scrapes on his neck and chin.
DISCUSSION
I. Sufficiency of the Evidence
Appellant contends there was insufficient evidence that his conduct delayed any officer in the performance of his duties, pursuant to section 148.
Section 148, subdivision (a)(1) provides in full: “Every person who willfully resists, delays, or obstructs any public officer [or] 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 not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
“ ‘The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.’ ” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.)
In assessing the sufficiency of the evidence that appellant delayed an officer in the performance of his duties, “[o]ur review is governed by the same principles applicable to adult criminal appeals. [Citation.] Our function is ‘to determine whether the record contains any substantial evidence tending to support the finding of the trier of fact, and in considering this question we must view this evidence in the light most favorable to the finding.’ [Citation.]” (In re Muhammed C., supra, 95 Cal.App.4th at p. 1328.)
Appellant first argues that his initial flight from Deputy Salkin did not violate section 148 because Salkin did not have a legal basis to detain him. Specifically, appellant asserts that Salkin had no reasonable, articulable suspicion that appellant was involved in criminal activity. We disagree.
“ ‘A peace officer may, without a warrant, take into temporary custody a minor: [¶] (a) Who is under the age of 18 years old when such officer has reasonable cause for believing that such minor is a person described in [Welfare and Institutions Code] Section... 602.’ (Welf. & Inst. Code, § 625.)” (In re Gregory S. (1980) 112 Cal.App.3d 764, 772.) Thus, an officer may temporarily detain a minor if the officer possesses “specific and articulable facts causing him to suspect that (1) some activity relating to crime had taken place or was occurring or about to occur, and (2) the person he intended to stop or detain was involved in that activity. [Citation.]” (Ibid.)
In the present case, the evidence here showed that appellant was part of a large group of young males who were suspected gang members, and who were in a park/school area that had a problem with gang activity. Some of the people were drinking beer and practicing how to escape from police custody. According to Officer Harm, who testified as an expert on gangs, these individuals were Sureno gang members and, moreover, it is typical for Sureno gang members to carry weapons on their persons. When a police car arrived on West 9th Street and a signal was given, all of the people, including appellant, ran away. Salkin gave chase, shouting, “gang task force” and “stop,” but appellant continued to flee. At that point, not only the officers’ suspicion of appellant’s suspected gang membership, but also his flight from police and the suspicion that he had been drinking alcohol and was armed, together provided Salkin with a legal basis to temporarily detain appellant for questioning to determine whether his presence on the park/school grounds was lawful. (See People v. Souza (1994) 9 Cal.4th 224, 242 (Souza).)
As respondent notes, in the circumstances, the officers could have reasonably suspected that appellant had committed the crimes of possessing an illegal weapon or concealed firearm (§§ 12020, subd. (a), 12025, subd. (a)(2)); being armed on school grounds (§ 626.9, subd. (b)); possession or consumption of alcohol on school grounds (Bus. and Prof. Code § 25608, subd. (a)); and/or public intoxication (§ 647, subd. (f)).
In Souza, our Supreme Court discussed various factors—including an area’s reputation for criminal activity, the time of night, evasive action and flight—that are relevant to a determination of whether police officers had reasonable suspicion. (Souza, supra, 9 Cal.4th at pp. 240-241.) The court summarized the factors present in that case which, in the totality of the circumstances, provided the officers with reasonable suspicion: “[T]he presence on the sidewalk at 3 a.m. of two people who appeared to be talking to the occupants of a car parked in total darkness in an area that [an officer] described as a ‘high crime area,’ coupled with the evasive conduct by the occupants and defendant’s sudden flight when [the officer] directed his patrol car’s spotlight toward the group, justified a brief, investigative detention to enable the officer to resolve the ambiguity in the situation and to find out whether the activity was in fact legal or illegal. [Citation.]” (Id. at p. 242; cf. People v. Holguin (1989) 213 Cal.App.3d 1308, 1316 [person’s known gang membership is relevant, where person is found in an area known for gang-related activity].)
With respect to flight, the United States Supreme Court has also stated: “Our cases have... recognized that nervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.] Headlong flight—wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” (Illinois v. Wardlow (2000) 528 U.S. 119, 124.) The court acknowledged that a refusal to cooperate, without more, does not justify a detention, but further explained that “unprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” (Id at p. 125.)
Certainly, here, appellant’s unprovoked flight upon receiving a signal that police had arrived, coupled with the other factors previously discussed, justified a brief investigative detention. (Compare People v. Perrusquia (2007) 150 Cal.App.4th 228, 235-236 (conc. opn. of O’Leary, J.) [no specific, articulable facts justifying detention where, in otherwise consensual encounter, defendant, upon becoming aware of police, turned off car engine, exited vehicle, and attempted to walk quickly past officer]; People v. Hester (2004) 119 Cal.App.4th 376, 392 [“Mere membership in a criminal street gang, without additional facts supporting an inference of criminal activity, does not permit a detention”].)
Appellant further argues that, even if his detention was lawful, his verbal refusal to submit to Officer Cark was not a violation of section 148. Appellant is correct that the “First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” (People v. Quiroga (1993) 16 Cal.App.4th 961, 966.) In the present case, however, appellant misreads the evidence if he believes that appellant did nothing more than question Clark’s authority to detain him.
Here, the evidence shows that Clark saw appellant and his companion running from the park directly toward him and received a radio communication from Salkin identifying them as suspects. Clark, who was thus entitled to temporarily detain appellant to investigate, had his gun out and commanded them to show their hands and get on the ground. Appellant and the other individual, however, veered eastbound, away from Clark, and continued walking away with their hands in their pockets, even as Clark repeated his commands. As they walked away appellant repeatedly said, “No. What’s the allegation?” Appellant’s attempt to flee from Clark, albeit it at a walk rather than a run, plainly goes beyond a mere verbal refusal to cooperate. (See Illinois v. Wardlow, supra, 528 U.S. at p. 125.)
This case is thus distinguishable from People v. Quiroga, supra, 16 Cal.App.4th 961, 966, relied upon by appellant, in which Division One of this District found “nothing in appellant’s conduct before his arrest that might justify a charge of violating Penal Code section 148. It is true that he complied slowly with [the officer’s] orders, but it surely cannot be supposed that Penal Code section 148 criminalizes a person’s failure to respond with alacrity to police orders.” (Compare In re Muhammed C., supra, 95 Cal.App.4th at p. 1330 [where defendant refused to step away from patrol car after being so ordered five times, but merely acknowledged orders with a hand gesture, there was no “mere failure to respond”; rather, defendant “affirmatively responded to the police orders with defiance”].)
Appellant also argues that his conduct while being handcuffed did not violate section 148 because (1) he did not delay the officers and (2) the force he used was reasonable in light of Clark’s use of excessive force when he kicked appellant in the stomach. (See, e.g., Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894 [section 148 requires that officer be lawfully engaged in performance of his or her duties].)
First, the evidence shows that appellant’s yelling and kicking as the officers attempted to subdue and handcuff him delayed the officers from dealing with other suspects for close to a minute. One minute of delay is still delay. Second, we have already concluded that there is substantial evidence that appellant delayed the officers twice before that point, when he fled from each of them before being apprehended. Therefore, even assuming Clark’s later use of force in subduing appellant was not reasonable and therefore did not constitute lawful engagement in the performance of his duties, a violation of section 148 had already occurred. (Cf. Yount v. City of Sacramento, supra, 43 Cal.4th at p. 894 [section 148, subdivision (a)(1) “is not limited to a defendant’s conduct in resisting arrest but extends to a defendant’s resistance of an officer in the discharge of any duty of his or her office,” so long as the officer is lawfully performing those duties].)
In sum, substantial evidence supports the court’s finding that appellant violated section 148 by delaying an officer in the discharge of his duties.
II. Exclusion of Evidence of Deputy Salkin’s Alleged Misconduct
Appellant contends the trial court abused its discretion when it excluded evidence of prior misconduct by Deputy Salkin.
A. Trial Court Background
Prior to the jurisdictional hearing, appellant filed a motion, pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)and Evidence Code section 1043, to discover materials in Deputy Salkin’s personnel file. The motion was based on appellant’s contention that Salkin had kicked him and on the juvenile intake supervisor’s report, which stated that Salkin said he would add a battery charge against appellant after hearing appellant’s accusation against him.
The trial court granted the motion as to “unnecessary force and violence, and certainly any kind of documented false arrest or something. False claims of probable cause. False statements in reports.” The court’s reason for granting the motion was that “there’s enough of an indication, based upon what’s being presented by [defense counsel], that he was originally booked on certain charges, and then after a claim of force on behalf of the officer it was amended to claim something else.” Thereafter, the court provided defense counsel with discoverable information from Salkin’s file. Defense counsel located two witnesses who were prepared to testify about a prior incident in which Salkin threatened a juvenile arrestee.
Subsequently, at the jurisdictional hearing, defense counsel tried to impeach Salkin regarding his alleged threat against appellant with the incident discovered through the Pitchess motion. Defense counsel first attempted to cross-examine Salkin about the prior incident involving the two Pitchess witnesses. The prosecutor objected on relevance grounds and the court sustained the objection. Counsel then cross-examined Salkin about threatening to add the battery charge after hearing that appellant had told the intake supervisor that Salkin had kicked him in the stomach.
Defense counsel also attempted to present the testimony of the two Pitchess witnesses. The following colloquy occurred between counsel and the court:
“[DEFENSE COUNSEL]: I also have a witness... that I discovered through the Pitchess motion. She will be testifying [that] Salkin entered her home while her son was on probation, and she asked Salkin if he was both the judge and jury, to which Salkin replied, I’m God and I can do what I want. I think that’s wholly relevant.
[¶]... [¶]
“THE COURT:... It’s not relevant. You’ve not provided enough information for the Court for it to be relevant, [counsel]. It’s got to dispute something.
“[DEFENSE COUNSEL]: Your Honor, I attempted to ask the officer about that incident, and the Court disallowed it. So I wasn’t allowed, and I don’t feel I was allowed to go into that, because I wanted to provide so that I could call this witness at a future time.
“THE COURT: It wouldn’t have mattered, [counsel], if you would have gone into an area which I found not relevant, even if I were to have allowed that testimony. You would have had to have had an independent witness testifying as to something disputing what this officer said, or your client would have had to have done it. There’s nothing to dispute. [¶]... [¶] That’s why it’s not relevant.
“[DEFENSE COUNSEL]: I disagree, Your Honor. I believe it goes directly to the officer’s credibility. If this officer—excuse me, deputy believes he can do whatever he wants and he’s telling people, I’m God, I can do what I want, with regard to acting as judge and jury, I think it wholly goes to his credibility and impeachment, and that’s extremely proper, in my opinion.
“THE COURT: Well, the Court disagrees with you. It’s not relevant.
“[DEFENSE COUNSEL]: Okay, Your Honor, my other witness is [the first witness’s] son.... [He] was discovered through our Pitchess motion, and I believe [he] will be testifying that as Deputy Salkin was taking him to juvenile hall, indicated that—he pulled the car over and made gestures and indications and statements as to the point he was going to beat him with a baton type weapon....
“THE COURT: But you’re offering these witnesses for impeachment. [¶]... [¶] What are you trying to impeach?
“[DEFENSE COUNSEL]: The officer’s credibility. In which case I tried to ask him, you know, isn’t it true that you had these other statements? And it was objected to as relevant [sic]. So I wasn’t allowed to ask those questions to now bring in these people. [¶] Perhaps the officer would have said, yes, that’s true, I said that, in which case there would be no need for these witnesses. Perhaps he would have said no, but I wasn’t allowed to ask those questions.
“THE COURT: It’s not relevant, counsel. You haven’t made your foundation. [¶].... [¶] And you wouldn’t have made the foundation with the officer’s testimony, either.
“[DEFENSE COUNSEL]: Well, I’m sorry, Your Honor, then I don’t believe—if I can’t establish a foundation through those witnesses, I think it’s impossible to establish foundation.”
At the end of the defense case, after both the juvenile intake supervisor and appellant had testified, the court sua sponte recalled Deputy Salkin to the stand and invited defense counsel to ask him the questions to which the court had previously sustained objections. Under counsel’s questioning, Salkin acknowledged going to the home of the Pitchess witnesses for a probation search of the second witness. Salkin denied telling the first witness that he was going to put her son in prison for three to five years; that he said he was God and could do what he wanted; or that, while transporting the second witness to juvenile hall, he threatened “to beat his ass.”
At the conclusion of this testimony, the court stated, “I’m striking all of that testimony. I’m not seeing that it’s relevant to this proceeding at all, but I thought I would give you an opportunity to explore it.”
B. Legal Analysis
A trial court’s rulings regarding the admissibility of evidence are generally reviewed for abuse of discretion. (People v. Waidla (2000) 22 Cal.4th 690, 725.) As with all relevant evidence, “the trial court retains discretion to admit or exclude evidence offered for impeachment.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9.)
Here, the trial court indicated that it found the proposed evidence irrelevant because it did not dispute anything about which Deputy Salkin had testified. When the court asked what the evidence would impeach, counsel responded that it would impeach Salkin’s credibility. Even after Soladay and appellant testified, the court still concluded that none of the proposed evidence, including the cross-examination of Salkin and the testimony of the two witnesses, was relevant to the proceedings. In reaching this conclusion—that the proposed evidence was not relevant for impeachment purposes—the court acted well within its discretion. (See People v. Rodriguez, supra, 20 Cal.4th at p. 9.)
Appellant, however, bases his argument on appeal regarding admissibility of this evidence on two new theories, not addressed by the trial court. First, he now argues that this evidence “could have been introduced as character evidence” under Evidence Code section 1103, subdivision (a), which provides in relevant part: “In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
“(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.”
Since appellant never argued for admissibility on this ground in the trial court, he is precluded from so-arguing on appeal. (See Evid. Code, § 354; People v. Saunders (1993) 5 Cal.4th 580, 590.)
Similarly, appellant now argues that, once the court permitted cross-examination of Salkin regarding the prior incident, the court “itself created another theory of admissibility for the evidence by recalling Salkin to the stand.” According to appellant, once Salkin had testified on this point, the defense was entitled to prove his testimony false, pursuant to Evidence Code section 780, subdivision (i), which permits the admission of evidence to prove or disprove “the existence or nonexistence of any fact testified to by [the witness].” Again, because appellant did not raise this theory regarding admissibility in the trial court, he may not raise it now on appeal. (See Evid. Code, § 354; People v. Saunders, supra, 5 Cal.4th at p. 590.)
Moreover, as we have already discussed (see part I, ante), appellant had already delayed both Deputy Salkin and Officer Clark by ignoring their commands and fleeing from them before any of the alleged misconduct by Salkin could have occurred. Thus, any evidence suggesting that Salkin had subsequently threatened and/or kicked appellant would not have changed the result. (See People v. Watson (1956) 46 Cal.2d 818, 836.)
In his reply brief, appellant asserts that the defense was that Salkin had fabricated his account of the events surrounding appellant’s arrest and that Salkin had actually driven up to where appellant “stood next to a taco truck, jumped out and pointed his gun at [appellant], kicked him in the stomach, and handcuffed him.” Given that both Salkin and Clark—against whom no impeachment evidence was offered—testified consistently to a completely different set of circumstances, it is highly unlikely that admission of the Pitchess evidence would have changed the result. (See People v. Watson, supra, 46 Cal.2d at p. 836.)
DISPOSITION
The juvenile court’s order is affirmed.
We concur: Lambden, J., Richman, J.
All further statutory references are to the Penal Code unless otherwise indicated.