Opinion
B228080
10-07-2011
THE PEOPLE, Plaintiff and Respondent, v. ROMUALDO CHAVARRIA, Defendant and Appellant.
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, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. PA066236)
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed as modified 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, Pamela C. Hamanaka, Senior Assistant Attorney General, Jaime L. Fuster and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Romualdo Chavarria was convicted of assault and battery on a peace officer, hit and run driving, drunk driving and driving with a suspended license. On appeal, he contends that (1) the trial court erred in permitting the prosecution to introduce detailed evidence of his prior arrests and convictions for drunk driving; (2) the officer whom he allegedly assaulted was not engaged in the lawful performance of his duties; (3) the court increased his sentence based on an enhancement not submitted to or found true by the jury; and (4) the court erred in ordering restitution to a victim's insurer. Appellant also seeks review of the court's Pitchess determination. We conclude the court erred in permitting introduction of the details of appellant's prior arrests and convictions, but deem the error harmless. We further conclude that the order of restitution must be modified to direct payment to the victim, rather than her insurer. We find no other merit in appellant's contentions. Accordingly, we modify the judgment and affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
FACTUAL AND PROCEDURAL BACKGROUND
A. Information
Appellant was charged in a seven-count information with one count of assault on a peace officer by force likely to produce great bodily injury (GBI) (Pen. Code, § 245, subd. (c)); one count of battery with injury on a peace officer (Pen. Code, § 243, subd. (c)(2)); two counts of hit and run driving (Veh. Code, § 20002, subd. (a)); one count of driving under the influence of alcohol (DUI) (Veh. Code, § 23152, subd. (a)); one count of driving while having an elevated blood alcohol level (.08 percent or higher) (Veh. Code, § 23152, subd. (b)); and one count of driving after his license had been suspended due to a prior conviction for driving under the influence or for driving with an elevated blood alcohol level (Veh. Code, § 14601.2, subd. (a)). The victim of both the assault and the battery was identified as Officer Irwin Rosenberg. With respect to both the assault count and the battery count, it was alleged that appellant personally inflicted GBI on Officer Rosenberg. The information also alleged that appellant had suffered two prior convictions for driving while having an elevated blood alcohol level.
The assault and battery counts were charged as felonies; the remaining counts were charged as misdemeanors.
B. Trial
1. Prosecution Case-in-Chief
John Vitela testified that on November 14, 2009, at approximately 11:15 p.m., he heard the sound of a traffic accident outside his home. He grabbed a flashlight and went outside, where he saw a Ford Taurus crashed into the back of a parked SUV. The SUV had been pushed into the vehicle in front of it. A man Vitela later identified as appellant was standing on the sidewalk across the street from the cars. He appeared dazed. There was no one else around. Vitela saw no one inside any of the vehicles. Vitela approached appellant and asked if he was okay. Vitela smelled alcohol on appellant's breath. Appellant did not reply. He told appellant not to go anywhere. Vitela returned to his home to get his cell phone. When he came back, appellant was walking away.
Vitela estimated he was outside within 30 seconds of hearing the crash.
The police arrived and questioned Vitela. A short time later, the officers brought appellant to Vitela and Vitela identified him as the man he had seen earlier. At the time, appellant was sitting in the back of a police vehicle, not doing or saying anything.
Sergeant Alvaro Castellon of the San Fernando Police Department was patrolling in the area of the collision. He was in uniform and driving a marked car. As he approached the accident location, he saw appellant walking away from it. Appellant was staggering and stumbling. He appeared to be intoxicated and to have urine on his pants. Sergeant Castellon asked appellant if he was hurt and if he had been involved in an accident. Appellant said "no" to both questions. Appellant said he was coming from a friend's house. Appellant provided his name and address and continued walking toward his home, which was nearby. Sergeant Castellon went to the scene of the accident, where Vitela provided a description of the man he had seen. The description matched appellant.
Sergeant Castellon and Officer Rosenberg, who had also arrived at the accident scene in response to the call, drove separately to the address provided by appellant. Sergeant Castellon went to the front door. When appellant came to the door, Sergeant Castellon said he needed to talk to appellant because a witness had said appellant was involved in a traffic collision. Sergeant Castellon asked appellant to step outside. Appellant moved his hands toward his pockets. Feeling threatened, Sergeant Castellon grabbed his wrists. Appellant started cursing, saying "fuck you, motherfucker" and "fuck your mother." Appellant told Sergeant Castellon to let him go and threatened to "kick [his] ass." Sergeant Castellon pulled appellant outside where Officer Rosenberg handcuffed him. Both officers walked appellant to Officer Rosenberg's patrol car. Appellant continued to resist, use profanity, and challenge the officers to fight. When Officer Rosenberg was placing appellant into the back seat of his car, appellant leaned back and kicked him in the chest. Appellant called Officer Rosenberg a "motherfucker" and said, "fuck your mother."
Officer Rosenberg drove appellant to a location near the accident, where Vitela identified him as the man he had seen earlier. After the identification, appellant started kicking one of the back windows of the patrol car. Officer Rosenberg and another officer on the scene, Officer Robert Gallegos, tried to apply a leg-restraining device. Appellant resisted and yelled profanities. During the struggle, appellant bit Officer Rosenberg's finger. Officer Rosenberg and Officer Gallegos hit appellant in the head with their hands to get him to release the finger. Sergeant Castellon and Officer Gallegos secured appellant in the patrol car and rendered aid to Officer Rosenberg. Officer Rosenberg was transported to a hospital for treatment. The bite went through to the bone on both sides and caused the nail to fall off. Officer Rosenberg was given five stitches and an intravenous antibiotic. His finger was still numb at the time of trial, some eight months after the incident.
Officer Jorge Bayardo and his partner arrived on the scene when Sergeant Castellan and Officer Gallegos were struggling with appellant. Officer Bayardo transported appellant to a hospital to have his blood drawn. According to Officer Bayardo, appellant continued to struggle, curse and issue challenges at the hospital staff.
Sergeant Castellon testified that due to the circumstances, the officers did not attempt field sobriety tests. Officer Gallegos testified that when he and the two other officers were carrying appellant from Officer Rosenberg's car to Officer Bayardo's vehicle, he asked appellant questions pertinent to determining the level of inebriation. Appellant cursed and yelled profanities in response.
Appellant's blood alcohol concentration was .22. The Taurus was registered to appellant. Keys found in appellant's pocket at the time of his arrest fit the Taurus. Officer Gallegos ran a check on appellant's driver's license and discovered it had been suspended due to a prior incident of drunk driving.
2. Hearing on Use of Priors
The information alleged that appellant had two prior convictions for driving with an elevated blood alcohol level (Veh. Code, § 23152, subd. (b)), one in August 2005 and one in January 2007. When the prosecutor neared the end of her case-in-chief, the court held a hearing outside the presence of the jury to determine the appropriate use of appellant's priors. The prosecutor anticipated that if appellant testified, he would deny being the driver of the vehicle and would claim the officers used undue force in arresting him. She argued that if he so testified, evidence of the facts underlying his prior convictions should be admitted for purposes of impeachment.
Because the arrest that led to appellant's 2007 conviction occurred in 2006, that incident is often referred to as the 2006 incident or the 2006 arrest.
Prior to trial, defense counsel moved to bifurcate issues pertaining to the allegation that appellant had two prior convictions for driving with an elevated blood alcohol level. (See People v. Weathington (1991) 231 Cal.App.3d 69, 90.) She also asked the court to "sanitize" the priors to the extent they were needed to prove the charge of driving with a suspended license. (See People v. Sapp (2003) 31 Cal.4th 240, 261.) The prosecutor opposed the motions, contending evidence concerning the prior convictions was admissible for a number of purposes, including to prove an element of the charge of driving with a suspended license, viz., that the suspension was due to a drunk driving conviction. The court held in abeyance its ruling on the admissibility of the evidence concerning the priors, other than as necessary to prove the driving with a suspended license charge.
The prosecutor asked the court to consider admission for impeachment purposes only and specifically disclaimed reliance on Evidence Code section 1101 (generally, evidence of a person's character or a character trait is inadmissible when offered to prove conduct on a specified occasion, but "[n]othing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, . . . .") (Evid. Code, § 1101, subd. (b).)
Defense counsel invoked Evidence Code section 352, arguing that the facts surrounding appellant's prior convictions were extraneous to the matters in issue and that admission of such evidence would unnecessarily prolong the trial. She asserted that if the prosecutor were permitted to call witnesses to establish appellant's conduct during his earlier arrests, she would be obliged to call defense witnesses with knowledge of these events. The court overruled the objection, stating: "Based on [Proposition 8] and the fact this would be specifically for impeachment purposes of [appellant], assuming the defense testimony is going to be what we have been advised already, the court would allow the district attorney to go into the specific conduct involved in each of those arrests." The court further stated: "I do not feel it is unduly prejudicial in light of the fact that, if [appellant] is claiming he was not the driver and claiming that the officer used undue force, it is relevant and it is probative as to his past conduct and his prior two driving-under-the-influence cases, and . . . I think it's important for the jury to have the entire picture."
3. Defense Case
On direct examination, appellant testified he had driven to a friend's house on the night in question to watch a fight. During the course of the evening, he consumed three shots of tequila and four beers. Afterward, he did not want to drive. He was walking home when he ran into a friend whose name was "Ramon" or "Pedro." They decided to get appellant's car and drive it to appellant's house. Appellant's friend was driving the Taurus when it collided with the parked cars. The friend got out and ran. Appellant started to do the same, but then decided to wait and see if the owners of the damaged cars appeared. After a short while, he decided to go home. He assumed the authorities would come find him there because a car registered in his name had been involved in an accident. A short time later, a man appeared at the door and said appellant had been in a collision. The man did not identify himself as a policeman. Appellant assumed he was, but was not sure because his vision was blurry. Appellant told the man what happened. The man swore at him.
At some point, appellant understood he had been arrested. While the officers were pushing appellant toward one of the patrol cars, he asked them to be careful of his back. They told him to shut up and started hitting him all over his body. They continued to hit him after getting him into the car. Once left alone in the car, appellant lay in the back seat until they arrived at the hospital where his blood was drawn. Hospital personnel paid no attention to his injuries. Appellant did not remember using profanity. He did not remember injuring Officer Rosenberg. He stated he was drunk at the time.
With respect to appellant's prior convictions, defense counsel asked only a handful of questions, eliciting that appellant had been arrested in 2006 for "drinking beers" and that he had pled guilty "because I felt I was guilty because I was drunk." On cross-examination, the prosecutor asked about the details of the 2006 arrest and also brought up the 2005 arrest. In response to the prosecutor's questioning, appellant testified that in 2006, he had been followed by a police officer who was attempting to pull him over. Instead of stopping, he drove home, pulled into his driveway, threw his keys down and went inside his house. He further testified that the officers who arrested him in 2006 pushed and shoved him and hit him repeatedly, causing injury to his face, although he had been cooperative. They also used foul language toward his son. Asked about his 2005 arrest, appellant denied fighting with police officers. He stated that he had been cooperative during the arrest and that he had subsequently pled guilty to drunk driving. Appellant admitted that his license had been suspended for driving under the influence. He testified he had always cooperated with police officers and thought well of them.
The defense called appellant's son, also named Romualdo, who was home when appellant was arrested in 2006. He testified that when the officers were taking appellant to their car, he saw them hit appellant's head into a window.
C. Rebuttal
In rebuttal, the prosecution called Officer Saul Esquivel, who testified that in July 2005, he arrested appellant for possible DUI. Although appellant cooperated when asked to perform field sobriety tests, he was belligerent and used profanity. He was not physically violent, but invaded the officer's personal space and pulled his hands away when the officer tried to handcuff him. Officer Courtney Chaisson testified that when appellant was brought to the station, appellant told Officer Esquivel that he wanted to "fuck his sister." Appellant also made masturbatory hand gestures and noises with his mouth.
Detective Evelyn Diaz Starkey testified that in 2006, while on patrol, she observed appellant driving at night without lights and attempted to pull him over. Instead of stopping, appellant drove to his home and went inside, where the detective heard him instruct his wife to close and lock the door. When appellant came to the door, he denied doing anything wrong. When an officer attempted to handcuff him, he flailed his arms and used profanity. During the struggle to bring appellant under control, both appellant and an officer fell to the ground. Appellant did not cooperate when asked to perform field sobriety tests. At one point, he stated: "Fuck this country; I hate America; I love Iran." Police criminalist Amanda Davis testified that appellant's blood alcohol concentration at the time of the 2006 arrest was .19.
The prosecutor also recalled Sergeant Castellon who testified that when arrested in the instant case, appellant did not claim someone else had been driving the car. Sergeant Castellon denied using profanity or hitting appellant or seeing any physical injuries on him. He denied that the other officers beat appellant. The nurse who had drawn appellant's blood on the night of the accident testified that as a matter of policy, persons who appear injured when brought to the hospital for blood alcohol testing are treated.
The parties stipulated that appellant suffered convictions for violation of Vehicle Code section 23152, subdivision (b) (driving with an elevated blood alcohol level) in January 2007 and August 2005.
Appellant does not assign error to the admission of the fact of the convictions.
D. Pertinent Argument
In closing, the prosecutor referred to the evidence of appellant's conduct during his prior arrests and convictions on a number of occasions. On one occasion, she stated in referring to a lesser included offense of resisting arrest: ""[W]hen [appellant] is using profanities and saying leave me alone; I didn't do anything, what you heard [that he said] in 2005, 2006, and in 2009[,] [']fuck you, you pigs. . . . I will fuck your mother. I hate this country. . . . I want to fuck your sister.['] . . . That's how you can resist, you can delay, you can obstruct an investigation by police officers." She urged the jury to disregard the lesser offense, however, and convict appellant of assaulting Officer Rosenberg.
In discussing the evidence supporting the DUI and driving with elevated blood alcohol charges, she stated: "You . . . have all the objective symptoms of [the] test, you know them already from the 2005 [incident], the 2006 [incident], the 2009 [incident], the slowed speech, the belligerent conduct, even the similarity in the profanities, the swaying and the blood/breath . . . that he had." She also referenced the 2006 incident in connection with appellant's apparent belief that once he got home, he was safe: "Isn't that what he did in 2006, he thought even though [Detective] Diaz is behind him with lights and siren going on, he thinks, I'm just going to . . . throw my keys, run inside the house and say, [']what are you doing here? . . . I didn't do anything. These officers are just harassing me.['] That's what he thought. [¶] And that's what he thought he would get away with this time. [']I'm just going to run home and, once I'm home, hey, no crimes.[']"
In seeking to discredit appellant's testimony that Officer Rosenberg and the other officers had beaten him, the prosecutor referred to the fact that appellant had claimed to have been beaten in 2006. In her final summation, she pointed out that all the police officers described appellant as behaving in a similar manner when inebriated and stated: "What we know is this is who [appellant] is. This is [the] profanity that he uses. This is the disrespect that he shows towards law enforcement and the lack of responsibility that he takes for his actions."
E. Verdict and Sentencing
The jury found appellant guilty on all seven counts. For purposes of the battery count, the jury found true that appellant personally inflicted great bodily injury on Officer Rosenberg.
Appellant was sentenced to a total term of ten years. The court imposed the high term of five years for the assault and a consecutive term of three years for the great bodily injury finding. The court imposed and stayed a term of two years on the battery count. For the hit and run counts, the court imposed a consecutive term of six months on one count and imposed and stayed a term of six months on the other count. The court imposed a one-year consecutive term for the DUI charge and imposed and stayed a sentence of one year for driving with an elevated blood alcohol level. For the final count of driving with a suspended license, the court imposed a consecutive term of six months.
At the sentencing hearing, the court received an estimate of $5,983.56 for repairs to one of the vehicles struck by appellant and ordered appellant to pay that amount to the owner of the vehicle, Javier Guerra. The court received an estimate of $5,574.16 for repairs to the other vehicle, owned by Veronica Cordero, and learned that her insurer had or would reimburse her for these costs except for a $1,000 deductible. The court ordered appellant to pay restitution to Cordero in the amount of $1,000 and to her insurer, Infinity Insurance, in the amount of $4,574.16.
DISCUSSION
A. Evidence of Prior Convictions
Appellant contends the court erred in permitting the prosecutor to introduce evidence of the underlying facts which supported his prior convictions for drunk driving for the purpose of impeaching his testimony. We agree, but conclude that the error was harmless.
1. Admissibility
Traditionally, evidentiary rules imposed strict limits on the admission of evidence of past misdeeds to discredit a witness, including a defendant testifying on his or her own behalf. "The concern [was] that without such limitations, trials would flounder on collateral issues, witnesses would be deterred by unfair surprise or fear of public humiliation, and testifying criminal defendants would incur the danger of conviction for past, not present, misconduct." (People v. Wheeler (1992) 4 Cal.4th 284, 290.) The Legislature codified one such rule in Evidence Code section 787, which provides that "evidence of specific instances of [a witness's] conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness." An exception existed if the witness had committed a felony. Evidence Code section 788 permitted impeachment of a witness by introduction of evidence that he or she had been convicted of a felony. The 1982 passage of the Truth-in-Evidence initiative (also known as Proposition 8) amended the California Constitution, requiring admission of all "relevant evidence" in criminal trials and further providing that "[a]ny felony conviction . . . whether adult or juvenile," may be used "without limitation" for purposes of impeachment. (Cal. Const., art. I, § 28, subd. (f)(2) and (4).) The provision expressly left rules pertaining to hearsay, privilege and Evidence Code section 352 intact, but superseded all other California restrictions on the admission of relevant evidence in criminal trials, including Evidence Code section 787. (People v. Wheeler, supra, 4 Cal.4th at pp. 291-292; People v. Harris (1989) 47 Cal.3d 1047, 1081.)
Although Proposition 8 widened the category of admissible evidence of prior misconduct, the due process clause of the United States Constitution which takes precedence over state law, requires that ""a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence.'" (People v. Castro (1985) 38 Cal.3d 301, 313, quoting Bruton v. U.S. (1968) 391 U.S. 123, 131, fn. 6.) As a result, our Supreme Court has concluded that post-Proposition 8, a defendant who takes the stand to testify on his or her own behalf can be impeached by evidence of prior felony or misdemeanor conduct only if it involved moral turpitude. (People v. Wheeler, supra, 4 Cal.4th at p. 296; People v. Castro, supra, 38 Cal.3d at p. 314.) Convictions which do not involve moral turpitude "bear[] no rational relation to the witness'[s] readiness to lie," and the due process clause of the Fourteenth Amendment bars their admission for impeachment purposes. (People v. Castro, supra, at p. 314.)
Respondent does not contend now, and the prosecutor did not contend below, that appellant's prior drunk driving convictions involved moral turpitude. Moreover, even if the convictions had involved moral turpitude, the prosecutor would have been limited to asking appellant whether he incurred the prior convictions. (People v. Shea (1995) 39 Cal.App.4th 1257, 1267, quoting People v. Heckathorne (1988) 202 Cal.App.3d 458, 462 ["'The scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense.'"].)
The prosecutor contended below that the facts underlying the convictions were directly relevant to appellant's credibility under the holding of People v. Millwee (1998) 18 Cal.4th 96 (Milwee). There, the defendant testified he shot his mother when his injured leg collapsed under him and the gun he was carrying accidentally went off. (Id. at p. 111.) On rebuttal the prosecutor introduced excerpts from a transcript of the defendant's testimony in another matter in which the defendant had similarly contended that a gun he was holding had accidentally gone off and injured the victim. (Id. at p. 115.) The court held that the excerpts were properly admitted "for the . . . narrow[] purpose of showing the implausibility and untruthfulness of defendant's testimony in the [present] case. . . . [¶] . . . The jury could readily find that defendant's credibility in the present case was diminished by the fact that he offered the same explanation for another shooting that occurred only 48 hours later." (Id. at p. 131.) The evidence of prior misconduct was relevant in Millwee, because the defendant was charged with two similar crimes -- assault and murder -- and in both cases, raised the same factual defense when accused of deliberately shooting the victim the gun accidentally went off. Here, appellant was charged in the underlying case and on two prior occasions with drunk driving. On the present occasion, he testified he was not the driver. However, on the prior occasions, he pled guilty to driving with an elevated blood alcohol level.
In arguing Milwee to the trial court, the prosecutor contended the evidence would show that in 2006, appellant fled to his home to avoid being arrested for drunk driving and when confronted by police officers said he had done nothing wrong, and that this was sufficiently similar to his words and deeds in the underlying case to justify admission of the facts surrounding the 2006 incident. Milwee involved a defendant who gave the same dubious excuse at two different trials for shooting two people within a 48-hour period; the court deemed the defendant's explanation of the prior shooting relevant to his credibility. Milwee did not involve the admission of evidence of a defendant's similar conduct on prior occasions.
Evidence Code section 1101 permits admission of evidence of past crimes or misconduct if sufficiently similar to alleged present conduct not for purposes of impeachment, but to establish a material fact other than criminal disposition, such as a common design or plan. (People v. Ewoldt (1994) 7 Cal.4th 380, 393, 402-403.) Assuming the factors identified by the prosecutor were sufficiently similar and distinctive to support admission under section 1101 (see Ewoldt, supra, at p. 403 ["To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts . . . ."]), this would not justify admission of the other facts surrounding the prior arrests and convictions.
On appeal, respondent contends the evidence detailing appellant's action in connection with the 2005 and 2007 convictions was admissible because appellant provided misleading testimony concerning his prior convictions. A defendant may be impeached with details establishing the seriousness of prior convictions if his testimony suggests the priors were trivial or technical or that he pled guilty to charges despite his innocence. (See, e.g., People v. Shea, supra, 39 Cal.App.4th at p. 1267.) Here, however, appellant testified on direct that he had a alcohol-related prior arrest (in 2006) and that he had pled guilty because he was guilty. The details of the 2006 arrest and all the information about the 2005 incident were introduced by the prosecutor in her cross-examination of appellant. It is well settled that a party may not cross-examine a witness upon collateral matters for the purpose of eliciting some statement to be contradicted or impeached. (People v. Lavergne (1971) 4 Cal.3d 735, 744; Winfred D. v. Michelin North America, Inc. (2008) 165 Cal.App.4th 1011, 1030.) "'This is especially so where the matter the party seeks to elicit would be inadmissible were it not for the fortuitous circumstance that the witness lied in response to the party's questions.'" (Ibid.)When appellant testified on direct, he said nothing about the prior arrests or convictions which was amenable to impeachment by other witnesses to the events. The prosecutor created the credibility issue by asking appellant to relate details about his prior arrests, without having first established the relevance of these details. This did not justify admission of further evidence about the past crimes for impeachment purposes.
Appellant literally testified he had been arrested in 2006 for "drinking beer." It was clear from the context that the arrest was for drunk driving. If not, that point could have been clarified on cross-examination without delving into all the circumstances of that arrest.
2. Prejudice
Having concluded that it was error to permit the prosecutor to introduce details surrounding appellant's prior arrests and convictions for purposes of impeachment, we must determine whether reversal is required. Pointing to the offensiveness of many of his alleged prior comments, appellant contends the jury could not have helped feeling bias against him for his foul mouth and anti-American sentiment. He further contends that the evidence of his prior resistive behavior undercut his defense to the assault and battery charges -- that he was assaulted by the officers who came to arrest him, including Officer Rosenberg. We conclude the error was harmless.
"We do not reverse a judgment for erroneous admission of evidence unless 'the admitted evidence should have been excluded on the ground stated and . . . the error or errors complained of resulted in a miscarriage ofjustice.'" (People v. Earp (1999) 20 Cal.4th 826, 878, quoting Evid. Code, § 353, subd. (b) and citing People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).)To establish prejudice under the Watson standard, "'[i]t is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding. . . . The defendant must show that there is a reasonable probability that, but for [the] . . . errors, the result of the proceeding would have been different.'" (People v. Ledesma (1987) 43 Cal.3d 171, 217-218, quoting Strickland v. Washington (1984) 466 U.S. 668, 693-694.) "A 'reasonable probability' is one sufficient to „undermine[] confidence in the outcome.'" (People v. Ochoa (1998) 19 Cal.4th 353, 473, quoting U.S. v. Bagley (1985) 473 U.S. 667, 678.)
Preliminarily, we note that appellant's contentions of prejudice focus on the assault and battery charges. Appellant admitted he had driven that evening despite his license suspension, essentially conceding the driving with a suspended license charge. With respect to the charges of hit and run, DUI, and driving with an elevated blood alcohol level, the most prejudicial aspect of the prior conviction evidence was the fact that it established appellant's history of drunk driving. However, to prove the Vehicle Code section 14601.2 violation, the prosecutor was obliged to establish that appellant had been driving after his license had been "suspended or revoked for a conviction or a violation of Section 23152 or 23153." (Veh. Code, § 14601.2, subd. (a); see CALCRIM No. 2220.) Appellant stipulated to advising the jury of both priors and does not assign error to the introduction of evidence that he suffered those convictions.
Moreover, the case against appellant on the hit and run and drunk driving charges was overwhelming. The Taurus that crashed into the parked vehicles belonged to appellant. Vitela came out of his house immediately after hearing the accident and saw appellant standing near the damaged cars. No one else was present. Sergeant Castellon observed appellant walking away from the location, visibly intoxicated. Appellant testified he was drunk. When the officers arrested appellant later that evening, they found the keys to the Taurus in his pocket. Appellant's testimony that a "friend" whose name he could not accurately remember was driving at the time was not plausible, particularly in view of the evidence that when Vitela came out of his house within 30 seconds of hearing the crash he saw only appellant, and the fact that the keys to the Taurus were found in appellant's pocket.
The evidence with respect to the assault and battery charges was equally strong. Multiple police officers testified that appellant behaved aggressively that night, that he resisted being handcuffed, struggled when the officers attempted to place him in the patrol car, kicked Officer Rosenberg in the chest, repeatedly kicked the window of the car in an apparent attempt to break it, and continued to be combative when delivered to the hospital to have his blood drawn. Officers Rosenberg and Gallegos testified to appellant's biting Rosenberg's finger, and there was no dispute as to the nature of the injury. Appellant, on the other hand, emerged with no significant bruises or injuries, a fact confirmed by the photographs of appellant taken that evening and the testimony of the nurse who testified he would have admitted appellant for treatment had he displayed any injuries. Notably, appellant offered no alternative explanation for Officer Rosenberg's injury, testifying only that he did not "remember" injuring the officer. On this record, there was no reasonable probability of a different verdict.
Appellant contends the offensiveness of the statements allegedly made on the prior occasions necessarily caused the jury to be biased against him. Appellant's 2005 and 2006 statements were on a par with the statements attributed to him by the officers who arrested him in 2009. It is not appreciably more offensive or inflammatory to refer to intercourse with an officer's sister than with his mother. The description of the 2005 incident portrayed appellant as relatively cooperative and non-violent. Appellant's described behavior in 2006, while resistive, was not nearly at the level of his alleged behavior in 2009.
Appellant does not contend the evidence of the offensive statements he made in 2009 were wrongly admitted.
Appellant contends the prosecutor's closing argument "seemed to focus on 2005 and 2006 almost as much as it did on 2009" to establish that he was "acting in conformity with his past behavior." The prosecutor focused primarily on the facts of the present case, referring to the evidence of the prior incidents chiefly as a basis for discrediting appellant's trial testimony. Although the prosecutor did on one occasion suggest that the prior conduct established "who [appellant] is," the overall focus of her argument was on appellant's actions in the present case, established by multiple witnesses and the physical evidence. When viewed in light of the overwhelming evidence of guilt, we do not believe the prosecutor's arguments unfairly tipped the balance against him.
Appellant was convicted of violating Penal Code section 245, subdivision (c), which proscribes assault "by any means likely to produce great bodily injury upon the person of a peace officer . . . engaged in the performance of his or her duties." The Supreme Court has held that a defendant cannot be convicted of an offense against a peace officer unless the officer was "acting lawfully" at the time. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) Penal Code section 841 provides that a person making an arrest "must inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it, except when the person making the arrest has reasonable cause to believe that the person to be arrested is actually engaged in the commission of or an attempt to commit an offense, or the person to be arrested is pursued immediately after its commission, or after an escape." Appellant contends that because the officers did not inform him of their intent to make an arrest, the cause of the arrest or their authority to make it, they were acting unlawfully.
"[I]t is well settled that where a party is apprehended in the commission of an offense or in fresh pursuit afterwards, failure to comply with section 841 does not invalidate the arrest." (People v. Sjosten (1968) 262 Cal.App.2d 539, 545.) Officers can be in "fresh pursuit" even when culprits are tracked and located many hours after the offense was committed. (Allen v. McCoy (1933) 135 Cal.App. 500, 508.) In addition, "where it may be inferred from the fact that [the arrestee] was arrested . . . , but made no outcry or objection, that she realized that the arresting officer was a police officer whose purpose was to make an arrest, it is immaterial that [the arrestee] was not expressly informed of the officer's authority and purpose." (People v. Valenzuela (1959) 171 Cal.App.2d 331, 334, overruled on another point in In re Culver (1968) 69 Cal.2d 898.) Moreover, strict compliance with Penal Code section 841 is excused "if the officer acts in a good faith belief that compliance would increase his peril." (People v. Braun (1973) 29 Cal.App.3d 949, 969, disapproved on another ground in People v. Green (1980) 27 Cal.3d 1.)
From the evidence presented, it is clear that Sergeant Castellon and the other officers were in fresh pursuit of appellant, who had just arrived home and had minutes earlier been identified as the culprit in a hit and run. When appellant came to the door, Sergeant Castellon, who was wearing a uniform and driving a marked patrol car, explained to appellant that he had been so identified. Before the sergeant could initiate a formal arrest, appellant made a suspicious move toward his pockets, which caused Sergeant Castellon to grab his arms. This began the struggle that culminated in appellant being handcuffed and placed in the patrol car. Although Sergeant Castellon apparently never expressly stated that he and Officer Rosenberg were there to arrest appellant for drunk driving or hit and run driving, appellant testified that he understood the men at the door were officers, that they were there because of his involvement in the accident, and that he had been arrested. Accordingly, there was substantial compliance with Penal Code section 841 and appellant's arrest was not unlawful.
C. Verdict Form Omission
The information alleged that in committing the offenses of assault by force likely to produce GBI and battery, appellant personally inflicted GBI on Officer Rosenberg within the meaning of Penal Code section 12022.7, subdivision (a). The jury found appellant guilty of both the assault and the battery. The verdict form for the battery charge included that special allegation and the jury found true that "in the commission of the above offense" appellant "personally inflicted great bodily injury upon [Officer] Rosenberg." However, the verdict form given to the jury for the assault charge did not include a place for the jury to make such a finding. In sentencing appellant for the assault, the court imposed an additional three-year term based on the GBI enhancement. Appellant contends his right to trial by jury was violated by imposing sentence on an enhancement not specifically found by the jury. We disagree.
"'[T]he function of [a] verdict is to register the jury's determination of whether the evidence sufficiently establishes the facts that the instructions recite are necessary to conviction.'" (People v. Chevalier (1997) 60 Cal.App.4th 507, 514, quoting People v. Cory (1984) 157 Cal.App.3d 1094, 1102.) "'"A verdict is to be given a reasonable intendment and be construed in light of the issues submitted to the jury and the instructions of the court." [Citations.]' [Citations.] 'The form of a verdict is immaterial provided the intention to convict of the crime charged is unmistakably expressed. [Citation.]'" (People v. Jones (1997) 58 Cal.App.4th 693, 710, quoting People v. Mackabee (1989) 214 Cal.App.3d 1250, 1256.) "'[T]echnical defects in a verdict may be disregarded if the jury's intent to convict of a specified offense within the charges is unmistakably clear, and the accused's substantial rights suffered no prejudice. [Citations.]'" (People v. Jones, supra, at p. 711, quoting People v. Webster (1991) 54 Cal.3d 411, 447.)
Here, appellant had notice that the GBI enhancement was part of the assault charge against him, as the information so alleged. He was, therefore, prepared to defend against it. The jury was expressly instructed that with respect to both the assault charge and the battery charge, it was required to decide whether the allegation of personally inflicting GBI had been proven. In closing, the prosecutor and defense counsel strenuously argued whether Officer Rosenberg had suffered GBI. Counsel for both sides made clear that the crucial issue for the jury to resolve was whether Officer Rosenberg's injury was substantial. The jury found true that appellant personally inflicted GBI on Officer Rosenberg in connection with the battery. The evidence in support of that allegation was identical to that alleged in support of the GBI allegation in the assault count. Accordingly, the jury necessarily made the factual finding in support of the charged enhancement to the assault count, and the sentence imposed by the court was fully supported by the jury's findings.
Both the prosecutor and defense counsel argued that the assault, the battery and the special allegation were based on the injury to Officer Rosenberg's finger, not the kick to his chest or any other blows he might have suffered.
We find support for our conclusion in People v. Cory, supra, 157 Cal.App.3d 1094. There the information charged that the defendant had personally used a firearm within the meaning of two statutory provisions, but the verdict form on which the jury rendered its guilty verdict referred to only one of the provisions; the court sentenced the defendant in accordance with the other provision. The Court of Appeal upheld the sentence, explaining that the jury had performed its function of "find[ing] whether the facts necessary for conviction had been proven, by assessment of the evidence admitted at trial in light of the court's instructions defining the types and quanta of acts necessary for conviction." (157 Cal.App.3d at p. 1102, italics omitted; see Neder v. U.S. (1999) 527 U.S. 1, 15-17 [failure to instruct jury on element of offense -- materiality of false statement on tax return -- subject to harmless error analysis; verdict affirmed because evidence supporting materiality was overwhelming]; People v. Camacho (2009) 171 Cal.App.4th 1269, 1273-1274 [defendant was charged with two counts each of carjacking and robbery, but the verdict form for one robbery charge mistakenly identified the offense as "carjacking"; court concluded that as "case was tried from start to finish with the understanding defendant was charged with two counts of carjacking and two counts of second degree robbery," verdict was validly interpreted as finding defendant guilty of two counts of robbery]; People v. Jones, supra, 58 Cal.App.4th at pp. 710-712 [information contained special multiple victim allegation but did not assert it in connection with any particular count and jury was not specifically asked to find allegation true; in finding defendant guilty of separate charges involving different victims, jury necessarily found special allegation to be true]; People v. Marshall (1996) 13 Cal.4th 799, 851-852 [trial court's refusal to submit multiple-murder special-circumstance allegation to jury constituted harmless error, where jury's verdict of guilty on three counts of first degree murder necessarily established truth of allegation].) In finding that Officer Rosenberg suffered serious bodily injury in connection the battery charge, the jury necessarily determined he suffered serious bodily injury in connection with the assault charge. Appellant's right to a jury trial and to have a jury find true all facts supporting his sentence was not impaired by the court's imposition of the enhancement.
D. Restitution
The court ordered appellant to pay $4,574.16 to Infinity Insurance, the insurer for Veronica Cordero who owned one of the damaged vehicles. Appellant contends the trial court erred in ordering restitution to be paid to a victim's insurer. Respondent concedes the contention has merit, but contends it was forfeited because appellant did not raise the matter at the sentencing hearing. The contention has merit and is not forfeited.
Penal Code section 1202.4, subdivision (f), requires the trial court to order restitution "in every case in which a victim has suffered economic loss as a result of the defendant's conduct." The term "victim" includes family members of the actual victim and any person who sustains economic loss, and "[a]ny corporation . . . or any other legal or commercial entity when that entity is a direct victim of a crime." (Pen. Code, § 1202.4, subd. (k)(2), italics added.) A victim's insurance company is not a direct victim of the crime and is not entitled to restitution under section 1202.4. (People v. Birkett (1999) 21 Cal.4th 226, 245 [interpreting predecessor statute].) Instead, the immediate victim is entitled to receive the full amount of the loss caused by the crime without regard to payment he or she received from his or her insurer. (Id. at p. 246.) Ordering a defendant to pay restitution to a victim's insurance company constitutes an unauthorized sentence and the issue is cognizable on appeal despite the lack of objection at trial. (People v. Bartell (2009) 170 Cal.App.4th 1258, 1261.)
Appellant contends the matter should be remanded for further proceedings. We perceive no reason to do so. As the amount of the restitution awarded was reasonable and supported by the evidence and as it is clear that Cordero was entitled to the full amount, we shall order the trial court to modify the abstract of judgment to direct payment of restitution to Cordero.
E. Pitchess
Prior to trial, the defense moved under Pitchess v. Superior Court, supra, 11 Cal.3d 531, for discovery of the personnel records of Officers Rosenberg and Gallegos and Sergeant Castellon. The moving papers contended that appellant was grabbed without explanation by Sergeant Castellon; handcuffed, dragged, and pushed into a patrol car by Sergeant Castellon and Officer Rosenberg; hit in the mouth by Officer Rosenberg; and hit by other officers on his head, neck, back and mouth. The motion sought discovery of evidence relating to "acts of excessive force, coercive conduct, violation of constitutional rights, fabrication of charges, fabrication of evidence, fabrication of reasonable suspicion and/or probable cause, illegal search/seizure, false arrest, perjury, dishonesty, writing of false police reports, writing of false police reports to cover up the use of excessive force, planting of evidence, false or misleading internal reports, including but not limited to false overtime or medical reports, and any other evidence of misconduct amounting to moral turpitude."
The court granted the motion and conducted an in camera review of the officers' personnel records. The court found no discoverable information. Appellant asks that we review the transcript of the Pitchess review to determine whether the trial court abused its discretion by failing to order disclosure of any other pertinent information. We have reviewed the sealed transcript of the in camera hearing. It constitutes an adequate record of the trial court's review of the documents provided to it, and reveals no abuse of discretion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1231.)
DISPOSITION
The superior court is directed to modify the abstract of judgment to change the payee of the $4,574.16 restitution award from Infinity Insurance to Veronica Cordero and to forward copies of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J. We concur:
EPSTEIN, P. J.
SUZUKAWA, J.