Opinion
H044719
10-15-2019
THE PEOPLE, Plaintiff and Respondent, v. MARIO ESPINOZA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1525204)
Defendant Mario Espinoza appeals from a judgment of conviction entered after a jury found him guilty of brandishing a deadly weapon with the intent to resist arrest (Pen. Code, § 417.8), attempted criminal threats (§§ 664, 422), and criminal threats (§ 422). The jury also found true allegations that defendant personally used a deadly weapon, a knife, in the commission of each offense. (§ 1192.7, subd. (c)(23).) The trial court sentenced defendant to an aggregate prison term of four years.
Subsequent statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant raises two instructional error claims: the trial court committed prejudicial instructional error with respect to a pinpoint instruction for the section 417.8 offense; and the trial court erred by not sua sponte giving a self-defense instruction. Defendant also argues that the court abused its discretion by denying his Pitchess motion for discovery of excessive force complaints made against the officers involved in his arrest. Finally, defendant requests that this court independently review the in camera hearing on his Pitchess motion as to complaints of falsity. We find no reversible error and affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
I. Background
A. The Prosecution's Case
On November 22, 2015, San Jose police officers responded to a report of a man in a wheelchair with a knife "[t]hreatening to cut individuals." The responding officers were uniformed and driving marked patrol cars, and repeatedly identified themselves as police officers.
Officer Ian Hawkley was the first officer to arrive. Hawkley testified that he saw defendant travelling down the road in a wheelchair. Hawkley approached defendant in his patrol car, stopped, and exited the vehicle. Hawkley told defendant to stop. Defendant swore and continued to travel down the road. Hawkley followed defendant on foot.
At least five more officers arrived on the scene and joined the pursuit. Hawkley jogged ahead of defendant to get in front of him. As he jogged ahead, Hawkley saw defendant "flick [his] wrist" and produce a knife in his hand. Defendant stopped and "spun around" to face the police officers. Hawkley observed defendant "holding the knife and . . . waving it . . . with his hand and he was threatening to cut anyone who came close to him." Hawkley yelled to the other officers that defendant had a knife.
Officer Cyle Carbalho testified that he was the second or third officer to arrive at the scene. Upon exiting his patrol car, Carbalho ordered defendant to stop. He also drew his firearm from his holster, though he could not recall if he pointed it or held it at his side. Defendant continued down the road, "flipped open a pocket knife[,] and told [Carbalho] he was going to kill [him] . . . ."
Officer Daniel Corral also responded. When Corral first arrived, he saw defendant holding a knife in his right hand. The knife was folded closed. Corral testified that he pulled his marked patrol car behind defendant and told him to stop. Defendant cursed and continued to travel down the road. Corral testified that defendant eventually stopped, "turned around[,] and . . . pulled the knife out exposing the blade. And he was yelling and cussing at [officers]."
Officer Steve Aponte testified that when he arrived, there were at least two other officers at the scene, and defendant was rolling away from the officers. Aponte heard other officers identify themselves and tell defendant he was under arrest. Defendant did not stop. Aponte positioned his vehicle to block defendant's path and exited his vehicle. Aponte identified himself as a police officer and instructed defendant to stop. Defendant cursed at Aponte. Moments later, defendant "flicked open" a knife in his left hand and "said something to the effect that [defendant] would cut [Aponte's] head off or cut [his] children's heads off."
After defendant stopped and spun around, the responding officers formed a semi-circle around him. Corral fired his Taser at defendant but missed him. Aponte then fired his Taser, hit defendant, and shocked him. Defendant did not drop the knife, and so Aponte shocked him two more times. Defendant still did not drop the knife. Hawkley then shot defendant in the hand with a rubber bullet from a foam baton launcher, causing defendant to drop the knife. Defendant was arrested.
B. The Defense Case
One witness, Roberto, testified on behalf of defendant. Roberto was working at a nearby gas station during the incident. He testified that he heard "a commotion" between defendant and police officers, and he saw defendant fleeing in a wheelchair. Roberto was about 50 feet away, and testified that although he could see the incident, he could not see it clearly because a fence partially obstructed his view. Roberto observed an unidentified object, either a knife or a metal pipe, in defendant's lap. He saw defendant throw the object from his lap during the chase. He later heard police officers tell defendant to "drop it." He testified that he saw officers use a Taser against defendant. He also "saw someone probably firing a [rubber] bullet, but it didn't strike him."
II. Discussion
A. Instructional Error
1. Background
The prosecutor moved in limine to exclude "any argument or questioning as to whether the officers were in lawful performance of their duties (i.e. unlawfully arresting or detaining [defendant], or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention) as irrelevant and likely to confuse the jury." The prosecutor also moved to exclude an instruction on self-defense. Finally, citing People v. Simons (1996) 42 Cal.App.4th 1100, 1108 (Simons), the prosecutor asked the trial court to supplement the pattern jury instruction for brandishing a deadly weapon to resist arrest, CALCRIM No. 982, with a pinpoint instruction: "Defendant is not permitted under the law to exhibit a deadly weapon to avoid arrest, whether the arrest is lawful or unlawful. [Citation.] It is not a defense to Count 1 that the officer(s) acted unlawfully."
At a hearing, defense counsel stated that defendant intended to present argument regarding the use of force. Because "force . . . is relevant to the charge," counsel stated that she intended to argue the issue of force "to support [defendant's] defense on [the brandishing offense]." However, counsel conceded that "as far as arguing [the use of force] as an affirmative defense[,] if that's what the People are asking[,] then we would submit on that." Notwithstanding the concession, counsel explained that defendant "should be able to use the facts underlying the case to present a defense as to the two elements that make up the Penal Code [s]ection 417.8" offense.
The trial court responded that it believed all parties were in agreement that it would be appropriate to explore "the facts of the case, which includes all of [defendant's] interaction[s] with the responding officers . . . ." In the court's view, "the issue is how can [the issue of force] be argued." In that regard, the court also believed that "the parties sound to be in agreement" that "excessive or unlawful or unauthorized use of force would not be a defense to [the brandishing offense]." Defense counsel agreed. The prosecutor also agreed, and added that "the degree of force used to subdue and secure [defendant] will be elicited at trial" in the context of defendant's "intent to resist and delay." Having apparently settled the issue of self-defense, the court agreed that "the manner in which the officers engaged with [defendant] and the force that they used upon him . . . would be relevant . . . to inform the whole context of the event and also give context to the" subject event. The court deferred consideration of the prosecutor's request for a pinpoint instruction.
During trial, defense counsel stated she "wanted to revisit . . . the question [that] was posed to me on the record whether or not I believe self-defense could be a defense . . . and I believe I stated that I did -- I did not believe it could be a defense and I would like to withdraw that." Defense counsel explained she did not "believe there's really any case law on point saying" that self-defense is not a viable defense under the circumstances of this case.
At the conclusion of evidence, the prosecutor and defense counsel discussed the proposed jury instructions. Defense counsel objected to the pinpoint instruction, arguing that the "issue of lawfulness was in dispute . . . ." The court overruled the objection, explaining that the court "read the case of [Simons] specifically at page 1109." Based on Simons, the court felt "that there was Appellate Court authority" for the proposition "that a defendant violates [section 417.8] when he exhibits a deadly weapon with the intent of preventing any arrest, lawful or unlawful." The court noted that based on "the evidence as it was presented in this case, [it] did feel that there was sufficient discussion around the question of the officer's conduct, the officer's use of force issues related to self-defense that" it would be "fair to give [the] jury a correct statement of the law that a defendant violates section 417.8 when he draws or exhibits a deadly weapon with the intent to resist or prevent any arrest or detention lawful or unlawful."
Addressing the section 417.8 offense during closing arguments, defense counsel asserted that it was "clear from the testimony of several officers . . . that they had to come up with a reason to do what they did that day." Defense counsel explained: "The guy in the wheelchair had a knife but there were eight to ten officers there, eight to ten, and they told you . . . that they were scared. Are you kidding me? That's ridiculous." Surrounded by police officers, defense counsel argued that "the more reasonable interpretation" of defendant's actions was "that he pulled out that knife to protect himself, to save himself because, you know what, just because those officers they are police, they too are humans." Thus, counsel contended that defendant brandished the knife because he was "afraid and scared."
The jury was instructed pursuant to CALCRIM No. 982. The instruction stated that defendant violated section 417.8 if (1) "[T]he defendant drew or exhibited a deadly weapon" and (2) "[W]hen the defendant drew or exhibited the deadly weapon, he intended to resist arrest or to prevent a peace officer from arresting or detaining him." The court also gave the jury the prosecutor's requested pinpoint instruction, which stated: "A defendant violates section 417.8 when he draws or exhibits a deadly weapon with the intent to resist or prevent any arrest or detention, lawful or unlawful." No self-defense instruction was given.
2. Analysis
Defendant contends that self-defense in response to excessive force is a valid defense to a charge of violating section 417.8. On this premise, he contends the trial court erred by (1) giving a pinpoint instruction that precluded an argument that the attempted arrest or detention was unlawful due to excessive force; and (2) failing to sua sponte give a self-defense instruction.
Section 417.8 states: "Every person who draws or exhibits any firearm, whether loaded or unloaded, or other deadly weapon, with the intent to resist or prevent the arrest or detention of himself or another by a peace officer shall be imprisoned in the state prison for two, three, or four years."
We review de novo whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.) "Review of the adequacy of instructions is based on whether the trial court 'fully and fairly instructed on the applicable law.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 (Ramos).)
The pinpoint instruction given by the trial court was drawn from Simons. In Simons, the defendant was convicted of violating section 417.8. (Simons, supra, 42 Cal.App.4th at pp. 1104-1105.) On appeal, the defendant argued that the trial court erred by failing to instruct on the misdemeanor offense of obstructing a peace officer (§ 148, subd. (a)), which the defendant contended was a lesser included offense of the section 417.8 offense. (Simons, at pp. 1104-1105.) The appellate court rejected the defendant's argument, holding that a violation of section 148, subdivision (a), was not a lesser included offense of section 417.8. (Simons, at p. 1110.)
In looking at the statutory language of section 417.8, the court noted that the statute prohibits the exhibition of a firearm or deadly weapon "with the intent to resist or prevent arrest . . . ." (Simons, supra, 42 Cal.App.4th at p. 1109, italics added.) Section 148, subdivision (a), on the other hand, prohibits the delay or obstruction of a peace officer who is "engaged in the performance of his or duties" when "the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or duties." (Simons, at p. 1109.) Thus, a defendant cannot be convicted of a section 148, subdivision (a) offense "unless the officer was acting lawfully at the time" because " 'an officer has no duty to take illegal action' " and cannot be said to be engaged in his or her duties " 'if the officer's conduct is unlawful.' " (Simons, at p. 1109.)
In contrast, under section 417.8, the appellate court observed there "[t]here is no requirement that the officer be engaged in the performance of his or her duties. Thus, a defendant violates section 417 .8 when he exhibits a deadly weapon with the intent of preventing any arrest, lawful or unlawful." (Simons, supra, 42 Cal.App.4th at p. 1109, italics added.) This result, the court noted, "comports with section 834a, which sets forth the citizen's duty to refrain from using force or any weapon to resist either lawful or unlawful arrests." (Ibid.)
Defendant relies on People v. Curtis (1969) 70 Cal.2d 347, 356-357 (Curtis), disapproved on another point by People v. Gonzalez (1990) 51 Cal.3d 1179, 1218-1222. In Curtis, the court analyzed the scope of section 834a and held that it "prohibits forceful resistance to unlawful as well as lawful arrests." (Curtis, at p. 352.) However, the court also concluded that although section 834a precluded the use of force to resist an arrest that was "technically unlawful" (i.e., one that lacked probable cause), under section 243 an arrestee "may use reasonable force to defend life and limb against excessive force." (Curtis, at pp. 356-357.) Defendant argues that Curtis stands for the proposition that "there is a common law right to use self-defense to resist excessive force." Defendant notes that the court in Simons was not concerned with construing the scope of self- defense for section 417.8, and so the Simons court's statement that a defendant violates section 417.8 when exhibiting a deadly weapon to resist any arrest, "lawful and unlawful," should not be read to preclude a right to self-defense.
We disagree. The trial court's instruction was consistent with the language of section 417.8. Section 417.8 prohibits the exhibition or display of a deadly weapon with the intent to prevent the arrest or detention of any person by a peace officer. Thus, to be convicted of a section 417.8 offense, a defendant must exhibit or display a deadly weapon with the specific intent to prevent an arrest or detention. The lawfulness of the police conduct is not an element of a section 417.8 violation, and "[o]ne can violate section 417.8 . . . by exhibiting a deadly weapon to evade an unlawful arrest." (Simons, supra, 42 Cal.App.4th at p. 1110.) Looking simply at the elements of section 417.8, the trial court's instruction, including the pinpoint instruction, " 'fully and fairly instructed on the applicable law.' [Citation.]" (Ramos, supra, 163 Cal.App.4th at p. 1088.)
Curtis does not hold otherwise. Curtis was concerned with construing the scope of section 243, battery on a peace officer, in conjunction with the statutory command in section 834a that a person has a "duty . . . to refrain from using force or any weapon to resist . . . arrest." Section 243 provides for increased punishment if a battery is committed against a "peace officer . . . engaged in the performance of his or her duties." The Curtis court concluded that, "construing sections 834a and 243, it is now the law of California that a person may not use force to resist any arrest, lawful or unlawful, except that he may use reasonable force to defend life and limb against excessive force." (Curtis, supra, 70 Cal.2d at p. 357.) An element of battery on a peace officer is that the officer was engaged in the performance of his duties, which is not an element of a violation of section 417.8. The Curtis court did not consider the scope of any right to self-defense with respect to section 417.8. (See Curtis, at p. 357.) Thus, the case does not establish that the trial court's instruction was erroneous.
Defendant also relies on People v. Adams (2009) 176 Cal.App.4th 946, 952-953 (Adams), and highlights certain language from Adams. However, Adams is distinguishable for the same reasons as Curtis. The cases cited in Adams for the language defendant highlights also involved construing the scope of sections 243 and 834a. (Adams, at pp. 952-953.) --------
Defendant's argument that the trial court had a duty to sua sponte give a self-defense instruction is also without merit. "The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, including self-defense . . . , and on the relationship of these defenses to the elements of the charged offense." (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on another ground by People v. Breverman (1998) 19 Cal.4th 142, 175.) We construe section 417.8 with reference to the statutory scheme of which it is a part. (Bowland v. Municipal Court (1976) 18 Cal.3d 479, 489.) In enacting section 417.8, we presume the Legislature was aware of similar brandishing statutes, many of which, unlike section 417.8, explicitly allow for self-defense. (Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1225 ["An enacting body is deemed to be aware of existing laws at the time legislation is enacted and to have enacted or amended a statute in light thereof."] (Alejandro N.), disapproved on another point by In re C.B. (2018) 6 Cal.5th 118, 130.) "Where a statute referring to one subject contains a critical word or phrase, omission of that word or phrase from a similar statute on the same subject generally shows a different legislative intent." (Craven v. Crout (1985) 163 Cal.App.3d 779, 783 (Craven).)
Section 417, subdivision (a)(1), which prohibits the exhibition of deadly weapons "in the presence of any other person," specifically provides that the provision applies "except in self-defense." Section 417, subdivision (a)(2), similarly prohibits exhibition of a firearm "in any fight or quarrel" "except in self-defense." The phrase, "except in self-defense," was added to section 417 in 1929. (Stats. 1929, ch. 204, §1, p. 366.) Section 417.3, which prohibits exhibition of a firearm "in the presence of any other person who is an occupant of a motor vehicle" also explicitly states that the provision applies "except in self-defense." Finally, section 417.4, which prohibits the exhibition of an "imitation firearm," also provides that the provision applies "except in self-defense."
In contrast, section 417.8 was enacted in 1982 without an exception for self-defense. (Stats. 1982, ch. 142, § 2.5, p. 476.) Section 417.3, on the other hand, which was enacted in 1987, included an exception for self-defense. (Stats. 1987, ch. 1433, § 1.) The predecessor to section 417.4, which was enacted in 1987, also included a self-defense exception. (In re Michael D. (2002) 100 Cal.App.4th 115, 121-122.) The inescapable conclusion that we draw from the Legislature's actions regarding this statutory scheme is that it intended that section 417.8 not permit a claim of self-defense. (Alejandro N., supra, 238 Cal.App.4th at p. 1225; Craven, supra, 163 Cal.App.3d at p. 783.) It follows that the trial court did not err in failing to instruct on self-defense.
B. Pitchess: Excessive Force
Defendant contends that the trial court erred when it denied his Pitchess motion for discovery of complaints of excessive force against the officers involved in his arrest.
1. Background
Defense counsel filed a motion for discovery seeking, with respect to the officers involved in the incident: "All complaints from any and all sources relating to the excessive and/or unreasonable use of force, false arrest, perjury, dishonesty, writing of false police reports, omitting material information in police reports, and any other evidence of misconduct amounting to moral turpitude . . . ." Defense counsel argued that when self-defense is a potential defense to a charge involving a police officer, "the character of the officer for aggressiveness is placed in issue."
At a hearing, the trial court offered a tentative ruling denying the Pitchess motion as to complaints of excessive force. Based on Simons, the court found that self-defense was not a defense to section 417.8. Defense counsel stated that she understood the "court's position regarding excessive force not being a defense to Count 1, per se" but maintained that the evidence would be relevant to credibility and provided a possible motive to fabricate evidence to "cover up his or her use of excessive force." The trial court ultimately granted the Pitchess motion as to complaints of "falsity," but denied the motion as to complaints of excessive force.
2. Analysis
A criminal defendant has a limited right to discovery of law enforcement officer personnel records. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) "To initiate discovery, the defendant must file a motion supported by affidavits showing 'good cause for the discovery,' first by demonstrating the materiality of the information to the pending litigation, and second by 'stating upon reasonable belief' that the police agency has the records or information at issue. [Citation.] This two-part showing of good cause is a 'relatively low threshold for discovery.' [Citation.]" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).)
Establishing "good cause" requires the defendant to "propose a defense or defenses to the pending charges" and "articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence [citations] that would support those proposed defenses." (Warrick, supra, 35 Cal.4th at p. 1024.) After the defendant has shown good cause for the discovery, the trial court reviews the relevant documents in chambers to determine which documents meet the relevant statutory standards. (Id. at p. 1027.) A trial court's ruling on a Pitchess motion is reviewed for abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)
Here, defendant did not establish good cause for the requested discovery related to complaints of excessive force. As discussed previously, defendant's attempt to defend against the brandishing charge based on self-defense was not supported by statute or case law. Therefore, the information was not material to the case, nor would it support the proposed defense. (Warrick, supra, 35 Cal.4th at pp. 1019, 1024.) Accordingly, the trial court did not abuse its discretion.
C. Pitchess: Falsity
Defendant requests that we independently examine the record to determine if the trial court followed appropriate procedures and properly exercised its discretion, with respect to complaints of falsity against the four officers.
In People v. Mooc (2001) 26 Cal.4th 1216 (Mooc), the California Supreme Court set forth the manner in which these records are reviewed. "If the trial court concludes the defendant has fulfilled [the statutory] prerequisites and made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion. [Citation.] The trial court 'shall examine the information in chambers' (Evid. Code, § 1045, subd. (b)), 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present' (id., § 915, subd. (b); see id., § 1045, subd. (b) [incorporating id., § 915]). Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' (Id., § 1045, subd. (a).)" (Mooc, at p. 1226.)
Here, the trial court conducted an in camera hearing and reviewed personnel files for complaints of falsity. At the hearing, the trial court ordered the disclosure to the defense of contact information for one individual who had filed a complaint about an involved officer. We have reviewed the transcripts, and we are satisfied that the trial court properly scrutinized the records and correctly determined there was no other discoverable material. The trial court did not abuse its discretion.
III. Disposition
The judgment is affirmed.
/s/_________
Mihara, J. WE CONCUR: /s/_________
Elia, Acting P. J. /s/_________
Bamattre-Manoukian, J.