Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR-469949, Ct. No. SCR-169949
Jenkins, J.
In these consolidated appeals, defendant Jack Robert Padia appeals his jury-trial conviction in case number A119039 on various charges filed against him after police responded to a report of a domestic disturbance at his residence in Rohnert Park on August 14, 2005. Defendant contends the trial court erred by failing to instruct the jury on whether the police entry into his residence was justified by exigent circumstances and that during closing argument the prosecutor committed prejudicial misconduct by vouching for the police officers who testified at trial. Defendant also requests that we independently review the materials considered by the trial court at an in camera Pitchess hearing. We affirm defendant’s judgment of conviction but remand with directions that the trial court prepare an amended abstract of judgment reflecting its oral pronouncement of judgment staying only count 4 pursuant to section 654.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
In case number A121471, defendant petitions for writ of habeas corpus on the grounds his trial counsel was ineffective by failing to present evidence to show that the police officers were not engaged in their lawful performance of duty when they entered the residence. We deny the petition for writ of habeas corpus.
Procedural Background
On September 28, 2005, the District Attorney for the County of Sonoma filed an information charging defendant with the following felony offenses: counts 1 and 2 — resisting Rohnert Park Police Officers Larson and Lawrence in the lawful performance of their duties (Penal Code, § 69); and counts 3, 4 and 5 — threatening Rohnert Park Police Officers Larson, Lawrence and Nicks in the performance of their duties (§ 71). In addition, the information also charged defendant with two misdemeanor offenses: count 6 — obstruction of an officer (§ 148, subd. (a)(1)) and count 7 — making criminal threats (§ 422).
Further statutory references are to the Penal Code unless otherwise noted.
Trial on these charges commenced on July 17, 2006. On July 20, 2006, the trial court declared a mistrial, ordered defendant to undergo a psychological evaluation and recessed proceedings pursuant to section 1368. The court found defendant competent to stand trial and reinstated criminal proceedings on September 26, 2006.
The jury heard opening statements in the second trial on November 21, 2006. On December 5, 2006, the jury returned guilty verdicts on all counts. On September 4, 2007, the court imposed a mitigated term of 16 months on count 1; a consecutive term of 8 months (one-third the mid term) on count 2; a mitigated term of 16 months on counts 3 and 5, to be served concurrently; a mitigated term of 16 months on count 4, stayed pursuant to section 654; and concurrent terms of 6 months on the two misdemeanor counts. The total term imposed was 24 months. Defendant filed a timely notice of appeal on September 11, 2007.
In its oral pronouncement of judgment, the court stated: “For Count III, the Court’s [sic] going to impose the mitigated term of 16 months concurrent. Count IV, 16 months, but that will be stayed pursuant to section 654 of the Penal Code. Count V, 16 months concurrent.â€� The abstract of judgment, however, does not conform with the court’s oral pronouncement of judgment because it lists count 5 (§ 71) as stayed pursuant to section 654 in addition to count 4. The clerk’s sentencing minutes also show counts 4 and 5 as stayed. Defendant acknowledges the trial court imposed concurrent sentences on counts 3 and 5 but does not contend the trial court should have stayed either count pursuant to section 654. In any event, the abstract of judgment must comply with the trial court’s oral pronouncement of judgment. (People v. Mitchell (2001) 26 Cal.4th 181, 185 [noting that “it is . . . important courts correct errors and omissions in abstracts of judgmentâ€� and “appellate courts . . . that have properly assumed jurisdiction of casesâ€� may order trial courts to do so].) Accordingly, the case will be remanded for that sole purpose.
Facts
Prosecution Case
Three civilian witnesses, Nancy Ford, Greg Brogdon, and his spouse Lisa Posternak, testified for the prosecution. Nancy Ford testified she lives next door to Patricia Herman on Lancaster Drive in Rohnert Park. On August 14, 2005, Ford came home from a day out at about 4:00 p.m. and shortly thereafter went out to barbeque in her back yard. Ford heard Herman trying to get in the back door and yelling at defendant because he would not unlock the door. Herman got into the house and a little while later “they started back up again.� Ford heard defendant say he was on the phone and telling Herman to “shut the fuck up, bitch.� Ford thought “it was getting loud, it was escalating,� then she heard “a lot of banging going on in the house,� as though things were being thrown against a wall. Ford became worried about Herman so she called 911.
Gregory Brogdon testified that he’s lived on Lancaster Drive in Rohnert Park for about fifteen years. Brogdon stated that Herman and her husband split up in late 2004 and defendant moved in with Herman sometime later. Around June 10, 2005, Brogdon heard a series of loud arguments between Herman and defendant. Brogdon could hear the two yelling and swearing at each other and things being thrown about, so he decided to try to intercede. Defendant was in the front yard of Herman’s house. Brogdon called out to defendant that he should stop the shouting and yelling. Defendant became enraged, walked over to Brogdon and threw him to the ground. Brogdon said defendant had “amazing upper body strength� and just threw him like “a little rag doll.� Someone called 911 and defendant drove off before the police arrived.
Brogdon was also a percipient witness to events related to the charges in this case. Brogdon stated defendant and Herman began arguing on Sunday morning and were still arguing when he left to go to the store around 4:30 p.m. Brogdon returned home around 5.30 p.m., and saw defendant walk out Herman’s garage door towards the street. Defendant began swearing at Brogdon and calling him names. Defendant approached Brogdon saying, “Get the fuck back in your house you chicken shit, you pussy. Come on you girl. . . . If you don’t get back in your goddam house, I am going to come over and finish what I started.� Defendant was extremely angry, red-in-the-face, shaking, and had his hands clenched in front of him. Brogdon thought he was about to be “thumped pretty good� so he retreated back into his house.
Once inside, Brogdon looked out of the front window. He could see defendant across the street in front of Herman’s garage. Defendant picked up two glass shower doors from a vehicle parked in the driveway and hurled them through the open garage door. Brogdon stated, “And they are safety glass, so it was like an explosion happened. There [were] . . . shards of glass flying all over.� At this point, “It got real, real loud. I mean, just people screaming at each other and yelling and stuff just flying around the garage.� Brogdon saw Herman stick her head out the door to the garage from the kitchen, scream at defendant then shut the door again. After he saw defendant kick in the door, Brogdon dialed 911.
Gregory Brogdon’s testimony was corroborated by his spouse, Lisa Posternak. In particular, Posternack recalled an incident in June 2005 when she heard Herman and defendant arguing, and saw defendant smashing things on the floor of the garage. Later, her husband came in and told Posternak defendant had pushed him down and that he could have been badly hurt if defendant had continued with his assault. Regarding the events of August 14, 2005, Posternak testified she heard Herman and defendant arguing that day. At one point her husband went outside to bring in groceries from the car, and when he returned he appeared upset and frightened. He told Posternak that defendant had threatened him again and said they should call the police. The police came a couple of minutes later and subsequently Posternak saw defendant inside a police car, waving his arms around whilst screaming and yelling aggressively.
Three City of Rohnert Park police officers testified, namely, Officers Charles Larson and Paul Lawrence, as well as their supervising officer, Sergeant Nicks. Officer Larson testified he had been a police officer for five years and that he had eight years of law enforcement experience in the military. He had trained in defensive tactics and in defusing domestic incidents by verbal as well as physical means. On August 14, 2005, Larson was in full uniform in a marked police car when he responded to a 911 call concerning a disturbance in Lancaster Drive described as “roommates have been arguing all day.� On the way to the scene, Larson received further information that there had been an assault reported at the same address about a month ago; that other 911 calls were coming in regarding the present disturbance; and that a neighbor who called 911 had been threatened. Larson was first on the scene and he pulled into a driveway two houses away from Herman’s residence. Larson saw Herman’s garage door was open so he got out of his patrol car and walked towards it. As he approached, Larson heard angry voices, yelling and arguing, inside the house. It sounded like an altercation was going on and Larson was concerned for the safety of those involved.
Larson took up position at the edge of the garage door, took out his firearm, held it at a low-ready position and peered into the garage. After a few seconds, Larson heard a “ ‘thud’ sound� of something being hit or smacked. As he waited for cover to arrive, Larson peered around the garage and noticed broken items scattered around the garage floor and that part of the frame to the door to the kitchen was broken and splintered. The door to the kitchen was open. From his position just outside the garage door, Larson had a clear view into the kitchen and part of the living room. He heard a male voice yell one more time and heard footsteps coming towards him. Larson then saw defendant “storm� into the kitchen.
At that point, Larson leaned into the garage and announced himself by saying, “Rohnert Park Police Department. Come here, come here. Rohnert Park Police Department.� Larson stated, “[Defendant] could see me. He looked right at me. He could see my uniform. I still had a little concealment but for the most part, I was leaning into the garage.� Larson identified himself again and told defendant to come over to him. Defendant was only 10 or 12 feet away, but he looked right at Larson, walked up to the kitchen door and slammed it shut. After the door slammed, Larson heard somebody either running or walking quickly away and assumed defendant was going back down the hallway. Larson yelled again a couple of times, “Police, come to the door. Open the door,� but defendant did not respond.
Just then Larson’s supervising officer, Sergeant Nicks arrived at his side. Larson quickly informed Nicks he believed a domestic or physical incident was in progress inside and that a man had just appeared, slammed the kitchen door and walked away. Larson and Nicks decided to enter the residence to ensure their own safety and the safety of others in the residence. Larson opined they did not know whether they were facing a hostage situation, or if defendant was attempting to retrieve a weapon or harm a victim. In such situations, Larson was trained to go in and take control of the situation to ensure the safety of people, prevent the destruction of evidence and apprehend possible suspects.
Officers Larson and Nicks entered the kitchen from the garage through the same door defendant had just slammed. As Nicks and Larson entered, they both called out, “Rohnert Park Police. Police, come out. Show us your hands.� Both officers had their weapons drawn at the safe “low-ready� position. Finding the kitchen clear, they entered the living room. A sliding glass door to the back yard was half-open. Larson scanned the living room while Sergeant Nicks went towards the sliding glass door to look out into the backyard. Larson then saw defendant standing at the very end of a hallway off the living room. Defendant appeared flushed and his clothes were disheveled.
Larson called out “Police� and ordered defendant to “get on the ground.� Defendant did not respond to Larson’s command. Defendant slowly turned, squared up to Larson with his left hand raised up in a clenched fist, then crouched to his knees and adopted a “fighting stance.� Larson yelled at defendant over and over to get on the ground, and defendant responded angrily, “What the fuck do you want?� Thinking defendant presented a threat, Larson holstered his gun, grabbed defendant’s left hand, and placed him on the floor. At this point, Larson saw that Officer Paul Lawrence had come to his assistance. Defendant grabbed Larson’s left forearm and began to twist and pull Larson towards him. As the officers grappled with defendant, he attempted to get up off the floor and began to yell, “Fuck you, cops. I am going to kill you.�
Defendant let go of Larson’s arm and began to push his body up off the ground with both officers still on top of him. At that point, Sergeant Nicks stepped forward and applied a Taser to defendant’s back and tased him for one full cycle. Defendant yelled, “Tell him to stop tasing me,� then his left arm shot out and he fell on his stomach. After placing defendant in handcuffs, Larson and Lawrence led him out of the house. According to Larson’s estimate, the officers’ entire encounter with defendant, from the time Larson first saw him in the hallway until they gained control of him, lasted about a minute. During that time no one else was present in the hallway. After defendant was in the patrol car, Larson saw Herman standing in the garage talking with Officer Lawrence.
Officer Larson’s testimony was corroborated by Rohnert Park police officer Paul Lawrence. Lawrence said he arrived on the scene just after Larson and Nicks. He followed them into the residence when he saw them go in through the door off the garage. As he entered, Lawrence saw Sergeant Nicks going through the sliding glass door to the backyard and heard Larson yelling repeatedly at someone to get down on the ground. When Lawrence rounded the corner into the hallway, he saw Larson grappling with defendant. Lawrence ran to help Larson gain control of defendant before Sergeant Nicks came up and applied the taser to defendant.
Lawrence also testified that Herman came out of the bathroom dressed in a robe just after defendant had been subdued and handcuffed. Herman asked, “What the hell is going on?� and “What the fuck are you doing in my house?� Lawrence contacted Herman again after defendant was placed in a police car. She was uncooperative and evasive, and denied any disturbance took place. She denied having any relationship with defendant and said he’s just a friend who stays on and off and helps around the house. Herman said she had been in the shower and did not know why neighbors had called the police.
Sergeant Nicks testified that he was on uniformed patrol on August 14, 2005 as supervising officer and watch commander for the shift. As Nicks drove to the scene, he heard Larson say over the police radio that “it sounded like it was physical inside the residence.� Nicks parked near Larson’s vehicle and joined him beside the garage. Larson briefed Nicks on what had happened. Nicks observed fragments of glass scattered all over the garage floor and that the door frame to the kitchen was splintered and broken. He and Larson determined they were dealing with an emergency situation and decided to “go inside the residence to determine that there was nobody currently being hurt or nobody that had been hurt inside.�
Larson went through the kitchen door and Nicks followed. After they cleared the kitchen, Nicks went out a sliding glass door in the living room to conduct a sweep of the backyard. At that point, he heard Officer Larson yelling at someone, “Get down on the ground. Let me see your hands.� When Nicks came back into the residence, he saw Officers Larson and Lawrence struggling with defendant, and he was telling them, “Fuck you, get off of me.� Then he saw defendant begin to push up off the ground, saying “Fuck you cops. I’m going to kill you.� Nicks then applied a contact tase to the small of defendant’s back, whereupon he went flat to the ground with his arms out and was handcuffed.
Defense Case
Patricia Herman and defendant testified for the defense. Patricia Herman testified that she was 50 years old and had lived at her home on Lancaster Road in Rohnert Park for about 30 years. Herman said defendant had been a friend for 15 years. She described her relationship with defendant as one in which he carries out maintenance and repairs to her home and in return she provides him with accommodation. Herman stated defendant breaks up materials at her home for recycling purposes. Also, she opined defendant is a perfectionist when it comes to executing a project, whereas she simply wants the job done as quickly as possible, which results in frequent loud arguments between them.
Herman testified defendant told her about an altercation he’d had with Greg Brogdon in June 2005 right after it happened. Defendant told Herman he’d been working in the garage and Brogdon had come into the middle of the street and call him “white trailer trash.� Defendant told Herman he went over to Brogdon, grabbed him by the arm and asked him why he’d said that. Brogdon did not answer so defendant let go his arm and couldn’t believe it when Brogdon just fell to the ground. Herman stated she has never seen defendant act violently and that he has never hit or threatened to hit her. Herman described Greg Brogdon as “a nosey neighbor� who watches what goes on in the neighborhood. Herman stated she once called the police after she and defendant had argued about a landscaping project and defendant accidently disconnected her telephone line while backing his truck. Another time they got in an argument about home security and defendant locked her out of the house to make a point about how a door locks. Herman ended up crying and screaming intensely at defendant to let her in.
On August 14, 2005, defendant was working in the garage, compacting and breaking down items Herman and he had decided to discard. Herman testified she and defendant argued that day but reconciled by around 5:00 p.m. because they were going to a concert that evening. Around that time she went into the garage and asked defendant to “wrap it up.� He agreed and shut the garage door. Herman watched to make sure the garage door closed all the way down and as it did so she could see Brogdon standing in his doorway watching from across the street. From the garage Herman and defendant both went into the master bedroom. She went to take a shower and told defendant to get dressed ready for the show. Herman said she took a quick shower and when she came out with a towel around her she saw defendant on the floor on his stomach with five or six police officers on him. Defendant was handcuffed and was calling her name.
An officer asked Herman to get dressed and threatened to shoot her dogs unless she controlled them. Herman asked what police were doing in her home. Police never explained why they were there or asked if she was all right. She was asked if she wanted to press charges against defendant and she declined. Herman watched as police escorted defendant out the front gate, then all of a sudden they made a U-turn and brought him back into the house and exited through the garage door. It appeared to Herman that the officers were jerking defendant from side to side as they escorted him to the police car. Herman did not hear defendant say anything threatening to the police, and observed no resistance on his part. On cross-examination, Herman stated that she and defendant stopped arguing at around 5:00 p.m. on the day of defendant’s arrest and that police came around 6:30 p.m. Earlier in the day, they were arguing about a home security project and defendant kicked in the door from the garage to the kitchen to demonstrate to her how easily someone could get into the house.
Defendant testified on his own behalf. He stated he finished up some recycling and compacting work in the garage and closed the garage door all the way down. Then he accompanied Herman into the master bedroom and she went to shower. Defendant stepped back out into the hallway, heard someone say, “Freeze. Get down on your knees,� and saw five or six police with guns pointing at him. Defendant stated he saw what looked “like an execution squad sitting at the end of the hallway� and “all pointing guns down at me.� The officers did not ring the doorbell, otherwise announce their presence, or explain why they were in the house. Defendant had a tiny screwdriver in his hands he used for fixing reading glasses. He listened to what the police said, tossed the little screwdriver to the side, and went down to his knees with his hands behind his back. Defendant allowed himself to be handcuffed and did not resist the officers or disobey their commands. The officers hit him and tased him, and were “violent and out of control.� Defendant stated he never threatened the officers.
Discussion
A. Jury Instruction Regarding Exigent Circumstances
The trial court gave a modified version of CALCRIM No. 2670. In part, the court’s modified instruction stated: “The People have the burden of proving beyond a reasonable doubt that Officer Larson, Officer Lawrence and Sergeant Nicks were lawfully performing their duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of trying to prevent an executive officer from performing his duties or resisting an executive officer in the performance of his duties, or resisting a peace officer.�
Defendant asked the trial court to also give that section of CALCRIM No. 2670 relating to exigent circumstances, which states: “In order for an officer to enter a home to arrest someone without a warrant [and without consent]: [¶] 1. The officer must have probable cause to believe that the person to be arrested committed a crime and is in the home; [¶] AND [¶] 2. Exigent circumstances require the officer to enter the home without a warrant. [¶] The term exigent circumstances describes an emergency situation that requires swift action to prevent (1) imminent danger to life or serious damage to property, or (2) the imminent escape of a suspect or destruction of evidence.â€� (CALCRIM No. 2670.) The trial court denied the request on the grounds that the exigent circumstances section of the instruction was inapplicable to the facts of the case because the officers did not enter the home in order to arrest someone—rather they entered under exigent circumstances to investigate a potential crime in progress and “[o]nce inside the residence, probable cause developedâ€� for defendant’s arrest.
Defendant contends the trial court erred by failing to instruct the jury that in order to convict him of the section 69 and 71 offenses the prosecution had to prove beyond a reasonable doubt that the police entry into his home was lawfully justified by exigent circumstances. Defendant further contends that reversal is warranted because the error was not harmless.
There is no evidence whatsoever that police entered the residence under the consent of the occupants or pursuant to a warrant.
1. The Trial Court Erred by Failing to Submit the Issue of Exigent Circumstances to the Jury.
To convict defendant of offenses against peace officers under sections 69 and 71, the prosecution had to prove that the officers were acting in the performance of their duties at the time of the offense. (§ 69 [offense to deter officer “from performing any duty imposed . . . by lawâ€� or to resist officer “in performance of his dutyâ€�]; § 71 [offense to threaten to harm officer “in the performance of his dutiesâ€�].) Additionally, the “longstanding rule . . . is that a defendant cannot be convicted of an offense against a peace officer ‘ “engaged in . . . the performance of . . . [his or her] dutiesâ€� ’ unless the officer was acting lawfully at the time the offense against the officer was committed.â€� (In re Manuel G. (1997) 16 Cal.4th 805, 815.) This longstanding rule “flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties,â€� for purposes of an offense defined in such terms, if the officer’s conduct is unlawful. (Citations.)â€� (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.)
Thus to convict defendant of offenses against police officers under sections 69 and 71, the prosecution had to prove not only that the officers were acting in the performance of their duties at the time of the offense, but that the officers’ actions were lawful. In this regard, when a defendant is arrested within his own home, the officers’ precedent entry into the home must comport with the strictures of the Fourth Amendment. (See Payton v. New York (1980) 445 U.S. 573, 576 [“Fourth Amendment to the United States Constitution . . . prohibits the police from making a warrantless and nonconsensual entry into a suspect’s home in order to make a routine felony arrest.�]; Kirk v. Louisiana (2002) 536 U.S. 635, 638 [“police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home�].) Consistent with the Fourth Amendment, police may enter a home to conduct further investigation on the basis of exigent circumstances alone. (People v. Duncan (1986) 42 Cal.3d 91, 104-105 [officer’s warrantless entry into defendants’ residence was justified by a reasonable belief that exigent circumstances required immediate action to protect life and property where officer smelled strong odor of ether and believed that dangerous chemicals were being mishandled on the premises].) In this case, therefore, the warrantless and nonconsensual entry of the police for investigative purposes necessarily required the existence of exigent circumstances. Accordingly, under the facts presented here, the existence of exigent circumstances was an essential element of the section 69 and 71 charges that should have been determined by the jury.
As noted, the trial court refused to give that section of CALCRIM No. 2670 relating to exigent circumstances because it determined that the officers did not enter the residence with the intention of arresting someone. However, the trial court has a sua sponte duty to instruct the jury on all the essential elements of the offense. (People v. Breverman (1998) 19 Cal.4th 142, 154 [trial court has sua sponte duty to “instruct on the general principles of law relevant to the issues raised by the evidence[,] . . . [including] those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case�].)
Indeed, in the context of a defendant charged under section 69 for resisting an officer during an altercation with police in defendant’s home, the Court of Appeal in People v. Wilkins (1993) 14 Cal.App.4th 761, 777 (Wilkins), held that the trial court erred by failing to instruct the jury sua sponte on the definition of exigent circumstances. The appellate court reasoned: “In order for the officers to have affected a lawful nonconsensual entry into the house to make a warrantless arrest, they must not only have had reasonable cause to believe defendant had committed a felony but there must also have been exigent circumstances justifying the officers’ immediate entry without obtaining a warrant. [Citation.] The instructional lacuna is not one which can be cured simply by clarification and amplification because the instructions given completely omit to address a material constituent of an element necessary for conviction.� (Wilkins, supra, 14 Cal.App.4th at p. 777.)
In sum, because defendant was arrested inside his home, and because the prosecution had to establish the lawfulness of the police entry in order to sustain the charges against him, the trial court erred by failing to submit the issue of exigent circumstances to the jury.
2. The Instructional Error was Harmless beyond a Reasonable Doubt
“An instructional error that improperly describes or omits an element of an offense . . . [¶] . . . [¶] is amenable to a harmless error analysis [under] Chapman v. California (1967) 386 U.S. 18 to determine ‘whether it appears beyond a reasonable doubt that the error did not contribute to this jury’s verdict.’ â€� (People v. Flood (1998) 18 Cal.4th 470, 502-503, 504 (Flood).) Specifically, in the case of an omitted element, the high court has stated that “the harmless-error inquiry must be essentially the same: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error?â€� (Neder v. United States (1999) 527 U.S. 1, 18.) “A reviewing court making this harmless-error inquiry,â€� the high court added, “asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is ‘no,’ holding the error harmless does not ‘reflec[t] a denigration of the constitutional rights involved.’ â€� (Neder, supra, 527 U.S. at p. 19.)
The evidence showed Officer Larson responded to a 911 call concerning a domestic disturbance. On route to the scene, Larson learned that an assault had been reported at the same address about a month earlier, that other 911 calls were coming in regarding the present disturbance, and that one of the neighbors who made a 911 call had been threatened. As Larson approached the open garage door on foot, he heard sounds of an altercation going on inside the house — voices yelling and arguing angrily and the “thud� sound of something or someone being hit or smacked. He saw various items lying smashed and broken all over the garage floor and noticed that part of the frame of the door into the kitchen was broken and splintered. Larson heard a male voice yell and footsteps coming towards him, then saw defendant storm angrily into the kitchen. Larson identified himself and asked defendant to come over to him. Defendant looked directly at Larson, who was in full police uniform, ignored his request to talk, and slammed the kitchen door closed. As Larson heard defendant’s footsteps retreating down the hallway, he yelled several times, “Police, come to the door. Open the door.�
In sum, the record clearly establishes that the officers responded to a domestic disturbance knowing that a neighbor had already been threatened, observed property damage consistent with a physical altercation, heard sounds of an altercation in progress, and were rebuffed by a potential suspect who refused to acknowledge their presence and forcibly declined their invitation to talk by slamming a door in their face. If believed by the jury, these facts establish beyond a reasonable doubt that the officers’ warrantless entry of the residence was justified under exigent circumstances because they reasonably believed there was an imminent danger to officer safety and to the safety of others within the residence. (People v. Ramey (1976) 16 Cal.3d 263, 276 [“ ‘exigent circumstances’ means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence [and] in each case the claim of an extraordinary situation must be measured by the facts known to the officers�].)
Moreover, the only record evidence contradicting the officers’ testimony regarding exigent circumstances is the testimony of Herman and defendant. They both testified they had ceased arguing long before police arrived on the scene and that the garage door was closed when police arrived. However, “in view of the actual verdict returned by the jury in this case, there is no reasonable or plausible basis for finding that the instructional error affected the jury’s verdict.� (Flood, supra, 18 Cal.4th at p. 505.) Here, as in Flood, supra, “[t]he verdict demonstrates that the jury resolved every contested issue in favor of the prosecution and, in particular, credited the testimony� of the police officers on what happened inside the house after they contacted defendant. The officers testified that defendant disobeyed commands to submit to police authority, that defendant physically and violently resisted their efforts to subdue him, that defendant verbally threatened to kill them in the course of the struggle, and that Herman did not appear from the bedroom until after defendant had been subdued, handcuffed, and brought to his feet. In contrast, defendant testified that he meekly submitted to the officers’ authority without protest or struggle when confronted by five or six officers with guns drawn. In a similar vein, Herman testified that when she emerged from the shower she saw defendant on the floor, handcuffed, with five or six police officers on top of him, and that she heard defendant make no threats and observed no resistance on his part. However, by convicting defendant of the section 69 and section 71 charges, the jury necessarily believed the officers’ testimony and necessarily rejected defendant’s and Herman’s testimony.
Given all these circumstances, we are satisfied beyond a reasonable doubt that the record lacks evidence “that could rationally lead to a contrary finding with respect to the omitted element.� (Neder, supra, 527 U.S. at p. 19; see also Flood, supra, 18 Cal.4th at p. 505.) Accordingly, the trial court’s failure to instruct the jury sua sponte on exigent circumstances as part of the necessary criteria for determining the lawfulness of defendant’s arrest was harmless.
B. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct based on his remarks to the jury during closing argument. In particular, defendant contends the prosecutor referred to facts outside the record and vouched for the credibility of the police officer witnesses when he asked the jury rhetorically why officers would risk their careers by lying in court. We have reviewed that portion of the prosecutor’s closing argument defendant complains of and reject his contention.
A prosecutor is generally precluded from vouching for the credibility of a prosecution witness, or referring to evidence outside the record to bolster the witness’s credibility or attack the credibility of the defendant’s witnesses. (People v. Anderson (1990) 52 Cal.3d 453, 479.) However, a prosecutor may properly argue a witness is telling the truth based on the circumstances of the case. (People v. Boyette (2002) 29 Cal.4th 381, 433.) Also, a prosecutor may properly argue a defendant’s testimony should receive less credence than that of a testifying officer if it may be inferred from the evidence defendant had a motive to lie. (People v. Bedolla (1979) 94 Cal.App.3d 1, 8.) “[S]o long as a prosecutor’s assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the ‘facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,’ [his or] her comments cannot be characterized as improper vouching.� (People v. Frye (1998) 18 Cal.4th 894, 971.)
In this case, the officers’ testimonies about how events unfolded were mutually consistent. Defendant, by testifying to an irreconcilably different version of events, placed his credibility directly at odds with that of the responding police officers. Therefore, the prosecutor was entitled to argue about who had the motive to lie — defendant or the officers. The prosecutor’s statements about the officers’ lack of motive to lie were based on facts from the record and inferences reasonably drawn from those facts. The officers all testified as to their background and experience in law enforcement and how they brought that to bear in assessing the situation and responding to the circumstances presented. Additionally, Officer Larson stated he had testified over 50 times in court, Sergeant Nicks over 75 times and Officer Lawrence stated he had responded to at least 100 domestic disturbance calls of various sorts. From this testimony, the prosecutor drew the reasonable inference that these experienced police officers had no motive to lie in this case, but expressed no personal knowledge or belief about the witnesses based on evidence outside the record. Thus, the prosecutor did not engage in impermissible vouching because he did not “place[] the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggest[] that information not presented to the jury supports the witness’s testimony. [Citations.]� (People v. Fierro (1991) 1 Cal.4th 173, 211; see also People v. Frye, supra, 18 Cal.4th at p. 971.)
C. Pitchess Hearing
1. Background
On October 18, 2006, defendant filed a Pitchess motion seeking to inspect the personnel files of the police-officer victims. At a hearing on the motion on November 1, 2006, the trial court found good cause to conduct an in camera review of materials related to Rohnert Park Police Department Officers Lawrence, Larson and Nicks, limited to incidents involving excessive force and violence, false arrest and fabrication of charges in the five years before August 14, 2005.
The court held two separate in-chambers hearings. The first hearing concerned the personnel records of Officer Larson during his employment by the Petaluma Police Department within the prior five years. In the presence of the attorney for the City of Petaluma, the trial court placed the custodian of records for the Petaluma Police Department under oath and questioned him. The custodian stated that he had reviewed Officer Larson’s personnel records, including personnel records, personnel evaluations, internal affairs files, as well as “frivolous complaints and citizen complaints.� The custodian stated he found no records relating citizen complaints about the use of excessive force and violence, false arrest, or fabrication of charges.
The second hearing concerned the personnel records of Officers Larson, Lawrence and Nicks during their employment with the Rohnert Part Police Department. In the presence of the attorney for the City of Rohnert Park, the trial court placed the custodian of records for the Rohnert Part Police Department under oath and questioned him. The court stated its inquiry was limited to “citizen complaints involving use of excessive force and violence, false arrest, and fabrication of charges.� The custodian stated the Department keeps any internal affairs file separate to the administrative files, which contain such information as payroll status and addresses. None of the three officers had an internal affairs file. The administrative files contain officer evaluations, which the custodian stated he had reviewed. The custodian stated he found no complaints or other “negative materials� concerning use of excessive force and violence, false arrest, and fabrication of charges.
Following the in camera review, the trial court concluded there was no discoverable material in the personnel files of the officers in question. Defendant requests that we independently review the materials considered by the trial court in its in camera review.
2. Analysis
“When a trial court concludes a defendant’s Pitchess motion shows good cause for discovery of relevant evidence contained in a law enforcement officer’s personnel files, the custodian of the records is obligated to bring to the trial court all “potentially relevantâ€� documents to permit the trial court to examine them for itself. (Citation.) A law enforcement officer’s personnel record will commonly contain many documents that would, in the normal case, be irrelevant to a Pitchess motion, including those describing marital status and identifying family members, employment applications, letters of recommendation, promotion records, and health records. (Citation.) Documents clearly irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in camera review. But if the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decision-making is to be the trial court, not the prosecution or the custodian of records. The custodian should be prepared to state in chambers and for the record what other documents (or category of documents) not presented to the court were included in the complete personnel record, and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion. A court reporter should be present to document the custodian’s statements, as well as any questions the trial court may wish to ask the custodian regarding the completeness of the record. (Citation.) [¶] The trial court should then make a record of what documents it examined before ruling on the Pitchess motion. Such a record will permit future appellate review.â€� (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 (Mooc).)
We conclude the trial court complied with the above procedures as set forth in Mooc, supra, and find no error in its decision there were no discoverable materials in the officers’ personnel files. The trial court dispatched its duty under Pitchess by obtaining, under oath, the custodians’ testimony that there were indeed no records responsive to defendant’s request. (See Mooc, supra, 26 Cal.4th at p. 1229, fn. 4 (rejecting the notion that an officer’s entire personnel file should always be produced at a Pitchess hearing because “an unscrupulous custodian could always remove� unfavorable evidence, and noting that City attorneys are officers of the court “and that criminal defendants are protected by the fact that a representative of the custodian of records is placed under oath before responding to a trial court’s questions during the in camera inspection of records�].)
C. Petition for Writ of Habeas Corpus
In his petition for writ of habeas corpus (case No. A121471), defendant asserts he received ineffective assistance of counsel. Defendant faults trial counsel for failing to present evidence, in the form of further testimony from defendant and Patricia Herman, that the police entered the residence by breaking down a gate at the rear, not through the open garage door at the front of the house as they claimed. Defendant also faults trial counsel for failing to introduce into evidence a police dispatch tape which he asserts corroborates the theory that police entered the residence from the rear. Defendant’s ineffective assistance claims are meritless.
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.� (Strickland v. Washington (1984) 466 U.S. 668, 687, 693 (Strickland).)
“ ‘ “Reviewing courts defer to counsel’s reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a ‘strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.’ â€� [Citations.] “[W]e accord great deference to counsel’s tactical decisionsâ€� [citation], and we have explained that “courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsightâ€� [citation]. “Tactical errors are generally not deemed reversible, and counsel’s decision-making must be evaluated in the context of the available facts.â€� [Citation.] [¶] In the usual case, where counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel’s acts or omissions. [Citations.]’ (Citation.)â€� (People v. Jones (2003) 29 Cal.4th 1229, 1254.)
Defendant avers his trial counsel should have elicited further testimony from himself and Patricia Herman that the police entered the residence from the rear after breaking down a garden gate. Defendant asserts that he did so “testify� at a Marsden hearing on April 20, 2006, when, in the course of expressing his dissatisfaction with defense counsel, he stated, “[T]he only way [the officer] can got [sic] in the- - in the house is to break the gate down, going in the back door.� At trial, however, Herman testified she went in the shower and when she came out a few minutes later she saw defendant on the floor of the hallway with five or six police officers already on him. Defendant testified he went back into the master bedroom with Herman, she went to shower, and he first saw the police when he stepped back out into the hallway. In short, neither defendant nor Herman saw the police enter the house. Thus, the obvious reason counsel did not attempt to elicit testimony at trial from either defendant or Herman that the police came in through the back door is that any such testimony would have been purely speculative. Accordingly, trial counsel was not ineffective in failing to ask questions that called for speculation.
People v. Marsden (1970) 2 Cal.3d 118.
Defendant also contends trial counsel was ineffective for failing to introduce the police dispatch tape of the incident into evidence because “the omitted defense testimony that the police entered the house by breaking down the [back] gate, not through an open garage door, would have been substantially bolstered by the introduction of the tape into evidence.� We disagree.
First, as we have already noted, “the omitted defense testimony� was purely speculative. Second, defendant offered no evidence at trial, and offers none now, that police broke down a gate during the course of the events involving defendant. Third, defense counsel made the tactical decision that the jury did not need to hear the entire tape if through the testimony of Sergeant Nicks defense counsel could elicit that Officer Lawrence, contrary to his trial testimony, had requested a unit to respond to the rear of the property before entry was gained to the house, and that request was not entered onto the event chronology. The prosecutor was very reluctant to go along with this, stating, “[The defense] want to pinpoint one thing that is inconsistent [sic] with his argument, the jury should hear the whole thing and it should be transcribed.� Ultimately, the prosecutor agreed to this information coming in via the testimony of Sergeant Nicks after defense counsel agreed to forego calling Officer Lawrence on rebuttal for impeachment purposes. Defense counsel elicited the desired testimony from Sergeant Nicks.
The transcript of the dispatch tape contains two references to an “axe�—“(?) request by unit on scene for an axe� and, “They knocked her heater with an axe. Thirty miles (?).� Even if the transcript accurately reflects what the officers said, any assertion the officers made any use of an axe to enter the residence based on such sparse and incoherent commentary is purely speculative.
Defense counsel’s tactical decision to place only a single comment on the dispatch tape before the jury was reasonable given other information on the dispatch tape potentially harmful to his case. Commentary on the tape tends to corroborate the officers’ testimony that they entered through the garage door and would only have further undermined defendant’s credibility. Other commentary on the tape describes defendant as “combatative and hard type,� and states the principal defense witness, Patricia Herman, has a pending court date. Commentary on the tape also tends to corroborate the testimony of Greg Brogdon, who can be heard telling dispatch that defendant had just threatened him and had knocked him down a few weeks ago in similar circumstances. In sum, defense counsel’s tactical compromise, by which the jury was informed via Sergeant Nicks that the dispatch tape showed Officer Lawrence requested a unit to the rear of the property before entry was gained to the house, but Officer Lawrence was not recalled for impeachment on that point, was a rational trial decision that we decline to second guess in hindsight. (People v. Jones, supra, 29 Cal.4th at p. 1254.)
Disposition
The trial court is directed to prepare an amended abstract of judgment reflecting its oral pronouncement of judgment staying only count 4 pursuant to section 654 and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment in case No. A119039 is affirmed. The petition for writ of habeas corpus in case No. A121471 is denied.
We concur: Pollak, Acting P. J., Siggins, J.