Opinion
D074799
04-02-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL S. SMITH, Defendant and Appellant.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD277086) APPEAL from a judgment of the Superior Court of San Diego County, David M. Gill, Judge. Affirmed. Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Kristen Kinnaird Chenelia, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted Michael S. Smith of three counts of carrying a concealed dirk or dagger (Pen. Code, § 21310; counts 1, 2, and 3) and two counts of resisting executive officers (§ 69; counts 4 and 5). The court sentenced him to three years formal probation and 364 days in jail, with credit for 225 days served.
Undesignated statutory references are to the Penal Code.
With respect to his convictions for resisting executive officers, Smith contends the trial court abused its discretion by admitting irrelevant and prejudicial evidence of his conduct—recounted in a 911 call and the 911 caller's testimony—prior to police arrival. He argues absent admission of this evidence, it is reasonably probable the jury would have reached a more favorable result. Assuming without deciding that the court erred in its ruling, we conclude on this record that Smith has not established the challenged evidence was prejudicial. We therefore affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
We take some of the background facts from transcripts of the officers' body-worn camera video, which were introduced as exhibits at trial. (See footnote 3, post.)
In June 2018, A.S., a bike safety captain in downtown San Diego, was asked to check on someone causing a disturbance. A.S. proceeded to the location and saw Smith pacing back and forth, screaming and yelling incoherently and waving his fists in the air, coming at pedestrians. A.S. believed Smith may have been under the influence. Smith seemed too aggressive for A.S. to conduct a welfare check, so he called 911.
Three San Diego Police Department officers responded to the scene. Each officer was equipped with a department-issued body-worn camera. Officers P. and H. were the first to arrive and contact Smith. Smith acknowledged he had refused to leave the area after A.S. asked him to depart. The officers asked Smith for his identification. He pulled a citation out of his pocket with his name on it. He also told the officers he did not need to follow their instructions, accused them of impersonating police, and refused to say whether he had any weapons. He asked for their credentials. Officer H. warned Smith if he resisted in any way, he was going to jail. Officer P. saw that Smith had a folding knife clipped onto his pocket and chopsticks in his socks. A third officer arrived and took Smith's citation to run his name.
Smith told the officers that all A.S. did was harass homeless people. Smith continued to claim the officers were fake, told them they were breaking federal law, and suggested they were involved in or had knowledge of a "sex ring," among other things. The third officer returned with Smith's citation. Smith asked the officers to leave, but Officer P. told him they were not finished.
When Officer H. asked Smith why he was harassing people, Smith denied it. Observing Smith was "all over the place," the officer informed him he suspected he was under the influence of a controlled substance and asked him to tilt his head back. Smith refused to follow the officer's instructions. He began shouting repeatedly, "Someone call the police."
At about this point, Smith moved into what the officers' described as a "fighting posture." He "bladed the right side of his body away" from Officer H., elevated his voice, and began "shifting his weight back and forth on each foot." Officer P. believed the safest way to finish their investigation was to restrain Smith. Officer P. tried to grab Smith's right arm, but Smith yanked it away. All of the officers grabbed Smith and forced him to the ground.
Smith landed on his side and Officer P. laid on the upper left side of Smith's body, holding him down, trying to bring Smith's right arm behind his back. Officer H. had his knee on Smith and tried to gain control of his hands, but Smith tensed his muscles and pulled away. Smith eventually turned onto his stomach and tucked his hand underneath his body. All three officers began using various "distraction blows" to gain Smith's compliance, striking his forehead with an open palm while trying to get his arm out from underneath him, and delivering "knee strikes" to the left side of Smith's body, as well as ten to twelve "hammer fist[s]" and "elbow strikes" to Smith's legs. Officer P. put his left arm around Smith's neck in an attempt to render Smith unconscious but stopped when he realized Smith was still actively resisting. Smith did not comply with the officers' commands to put his hands behind his back.
Officer P. reached again for Smith's arm and pulled it out from underneath his body. The officers quickly handcuffed Smith and seized three throwing knives that were hidden under his coat, and the folding knife from his pocket. Because they had attempted a carotid restraint and Smith's mouth was bleeding, as a standard practice the officers called an ambulance and took him to the hospital. Officer P. received abrasions on his hands and left knee. In Limine Motion Concerning the 911 Call
Before trial, the prosecution moved to admit A.S.'s 911 call under Evidence Code section 1240 as a non-testimonial spontaneous statement. The motion characterized A.S. as reporting that "a male was acting violently and trying to throw air punches at people."
At oral argument, defense counsel objected to the admission of the 911 call as irrelevant to the resisting executive officer offenses. Counsel explained Smith was not charged for the conduct described in the call, the officers had no personal knowledge of the call, and the officers would not be testifying they observed Smith throwing punches or attacking people when they arrived on scene. Counsel argued A.S.'s description of Smith's conduct as "an aggressive black male trying to attack people and throwing punches at people" was more inflammatory than Smith's later conduct with police. Defense counsel also asserted the 911 call and A.S.'s testimony were cumulative since each officer could testify to the nature of the dispatch call. Defense counsel argued the 911 call was therefore more prejudicial than probative.
Counsel also argued the call was testimonial hearsay. The court ruled the 911 call was admissible as a non-testimonial spontaneous statement. Smith does not challenge that ruling on appeal.
Questioning the evidence's probative value, the court inquired of the prosecutor on that point. The prosecutor proffered the 911 call was relevant to prove the officers were performing a lawful duty (why they were called, what they knew when they contacted Smith, what they were trying to investigate) and why A.S. felt Smith presented a danger to the community. The court listened to the call and inquired why the officers' testimony about the dispatch call was not sufficient for the prosecutor's purposes. The prosecutor argued the call would bolster the officers' credibility and corroborate their explanation about the reason they were at the scene. The court deferred ruling on the motion.
The next day, the court indicated it would tentatively grant the prosecutor's motion, finding the evidence had "more than just minimal probative value" to corroborate both A.S.'s and the officers' testimony, as the People would have to prove the officers were acting within the performance of their duties. The court added: "[T]he subject of police interaction with citizens now in the community is a matter of heightened, has been now for, recent times, unfortunately, a matter of heightened concern and criticism in the community. So we have to be mindful of that background I think."
The court then heard further argument on the Evidence Code section 352 analysis of prejudicial impact versus probative value. Defense counsel reiterated her previous objections in detail, characterizing the testimony from A.S. and the 911 call as uncharged bad act evidence showing Smith's propensity to be violent or assaultive. Noting the People did not have an Evidence Code section 1101, subdivision (a) theory, the court said it would instruct the jury not to consider the call as propensity evidence. Defense counsel added A.S.'s testimony was irrelevant because he never gave a statement to the officers, nor did he witness the officers' interaction with Smith. The court remarked that it was inclined to agree with counsel that the relevance of A.S.'s testimony was not strong. However, after further argument, the court ultimately admitted the evidence under Evidence Code section 352, stating, "[The prosecution] can present . . . evidence that has a tendency to corroborate the officers['] testimony." It ruled the evidence's probative value was not "substantially outweighed by the probability of misleading and confusing the jury, undue consumption of time or the most relevant concern, undue prejudice. So [the People] will be allowed to play the 911 tape and they will be allowed to call A.S. as a witness."
The parties later learned that A.S. had in fact watched the officers from across the street and saw some of Smith's interactions with them. A.S. ultimately testified about those observations at trial.
Prosecution Evidence
At trial, the prosecution played A.S.'s 911 call for the jury. The call transcript shows, in part, the following colloquy between A.S. and the 911 dispatcher: A.S.: "We got a very aggressive black male. He's, uh, threatening these people." Dispatcher: "So you just walking by [sic] and he's doing this, sir?" A.S.: "Yeah, yeah. He's, he's, he's trying to attack people." Dispatcher: "Any weapon, as far as you know?" A.S.: "No. He's just like, uh, getting verbally aggressive." Dispatcher: "Just verbally? All right. Ok." A.S.: "Actually, actually, he's throwing punches at people. They haven't connected yet." Dispatcher: "Oh, in the air, like in the air type of thing? Okay."
After playing the 911 call, the prosecutor asked A.S. what Smith was doing when he said Smith was trying to attack people. A.S. replied: "Well, he was rushing towards people like he was going to charge them." When the prosecutor asked A.S. if he saw Smith throw punches, he replied: "Well he was waving his fist in the air, you know coming at people." A.S. demonstrated Smith's movements by lifting his elbows up to his shoulders and alternating his fists back and forth. A.S. also testified to witnessing the altercation between the officers and Smith. A.S. described it as a scuffle; that it appeared the officers were trying to handcuff Smith, but Smith was resisting and struggling to get away. A.S. did not see Smith hit any of the officers.
The officers testified that the 911 dispatcher related that a person was screaming or being verbally aggressive with people who were just walking by, "throwing air punches," "making punching movements," and "swinging his fists" at passersby. Officer P. agreed that knowing a person was engaged in aggressive behavior before his interaction with them would affect his mindset about the appropriate degree of force he might use. Officer H. testified that based on the dispatch call he expected to contact a possibly aggressive and noncompliant person.
The prosecutor played each officer's body-worn camera footage for the jury as the officers testified. The officers described the behaviors that caused them to conclude Smith was under the influence of a controlled substance. Officer H. said Smith appeared paranoid, rambled and had a blank stare. Officer P. said Smith was hyperactive, unable to stay on topic, and had constricted pupils. Officer H. testified that by the time they determined Smith might be under the influence, Smith was detained; the officers would not permit him to walk away in that condition in a busy downtown area. The officers also described their official training on a "force matrix," which involved the appropriate level of force to use when faced with different levels of resistance. Under that matrix, officers were authorized to use "force plus one," meaning whatever level of force the person was exhibiting the officer could add one step in order to prevail in the situation. Thus, an officer dealing with a person not posing a threat but engaging in "passive resistance"—refusing to comply with verbal commands—would be authorized to use a "control hold" to force a suspect's hands behind his or her back. An officer dealing with a person engaged in "active resistance"—as when a suspect uses physical strength to pull away or resist the officers' efforts to put their hands behind his or her back or fails to follow verbal commands while posing a threat—would be authorized to use "distractionary strikes." The officers explained the purpose of the distractionary blow is to gain control of the suspect, not to cause injury. Officers H. and P. testified that while Smith never punched, kicked, or was violent toward them, he nonetheless actively fought with them and used force against them during the altercation.
This court has reviewed the body-worn camera footage and transcripts included in the appellate record.
Defense Evidence
Smith admitted telling A.S. he would not leave the area as A.S. requested because he was doing nothing wrong. He denied he was harassing passersby. He also denied any illicit drug use that day. Smith was concerned the officers would hurt him based on his previous experiences with the police. Smith said he was never assaultive with the officers besides trying to keep them verbally in check.
Smith said he pulled his arm away from Officer P. because the officer did not tell Smith he was arresting him. Smith claimed that after the officers took him down he could not comply with their commands because they pinned his hands to the ground. Smith denied using force against the officers, claiming he was using his strength to protect himself. He claimed he suffered broken ribs and a fracture in his face from the officers' assault. However, Smith admitted he pulled his arm away from the officer when the officer tried to grab it, and instinctively resisted the officers when they tried to take him to the ground. Smith said he did not go limp because he felt like he was "being jumped."
Jury Instructions
Prior to empaneling a jury, defense counsel requested a limiting instruction (a modified version of CALCRIM No. 303) be given to the jury prior to it hearing the 911 call recording, to instruct the jurors not to consider Smith's reported conduct as propensity evidence. The trial court refused the instruction, explaining the evidence was coming in for its truth under a hearsay exception and counsel could cross-examine the witnesses regarding the accuracy of A.S.'s statements. The trial court stated: "I don't see an [Evidence Code section] 1101[, subdivision (a)] problem. Now this is within a matter of minutes, the conduct was observed and to some extent the police officers are going to say he continued that sort of conduct."
At the close of evidence, defense counsel requested another instruction telling the jury not to conclude from the evidence of the defendant's uncharged behavior that he had a bad character or was disposed to commit crime. The trial court agreed and gave the instruction to the jury.
The instruction, CALCRIM No. 375 (Evidence of Uncharged Offense), provides in part: "The People presented evidence of other behavior by the defendant that was not charged in this case. [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged acts. . . . [¶] . . . [¶] Do not conclude from this evidence that the defendant has a bad character or is disposed to commit crime. [¶] If you conclude that the defendant committed the uncharged acts, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses, or lesser included offenses. The People must still prove each charge beyond a reasonable doubt."
DISCUSSION
Smith contends the trial court abused its discretion when it admitted the 911 call and A.S.'s testimony regarding Smith's actions prior to police arrival. Smith argues the evidence (1) was irrelevant to his charged offenses; and (2) was far more prejudicial than it was probative. Specifically, he asserts the reason why the officers appeared at the scene was not a disputed fact of consequence to his resisting offenses or the action. Nor, according to Smith, was the evidence relevant to establish the officers were performing their lawful duties because the question was not whether they were doing so when they contacted him, but when they used arguably unreasonable and excessive force against him. Smith argues the evidence was not relevant to corroborate the officers' testimony that he was possibly under the influence, because A.S. did not express such a belief in the 911 call. He further argues the evidence was entirely cumulative given the body-worn camera video, which eliminated any need to corroborate the officers' testimony. Smith maintains that because the evidence had virtually no probative value but instead painted him as crazed, violent and aggressive, it was likely to evoke an emotional bias against him, and arguably constituted highly prejudicial uncharged criminal conduct; accordingly, it is reasonably probable the jury would have reached a more favorable outcome for Smith had the evidence been excluded.
I. Legal Principles and Standard of Review
A. Relevance of Evidence
Relevant evidence under Evidence Code section 210 is evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (See People v. Jackson (2016) 1 Cal.5th 269, 330; People v. Jones (2013) 57 Cal.4th 899, 947.) The test of relevance is whether the evidence tends to "logically, naturally, and by reasonable inference" to establish material facts [in the case]. (Ibid.) Except as otherwise provided by statute, all relevant evidence is admissible (Evid. Code, §§ 350, 351; see also Cal. Const., art. I, § 28, subd. (d); People v. Young (2019) 7 Cal.5th 905, 930), and the court has broad discretion to judge relevance. (Jones, at p. 947.) "This discretion extends to evidentiary rulings made pursuant to Evidence Code section 352." (People v. Tully (2012) 54 Cal.4th 952, 1010.) We review the trial court's evidentiary rulings under the deferential abuse of discretion standard. (People v Young, at p. 931.) We will not disturb the trial court's exercise of discretion unless there is a showing that it exercised its discretion " ' "in an arbitrary, capricious, or patently absurd manner that resulted in a miscarriage of justice." [Citation.] When evidence is erroneously admitted, we do not reverse a conviction unless it is reasonably probable that a result more favorable to the defendant would have occurred absent the error.' " (Ibid.; Jackson, at p. 330.) B. Section 69 Offense
Section 69 provides: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment."
"The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats of violence to deter or prevent an officer from performing a duty imposed by the law; the second is resisting by force or violence an officer in the performance of his or her duty." (In re Manuel G. (1997) 16 Cal.4th 805, 814 (Manuel G.).) "The second way of violating section 69 expressly requires that the defendant resist the officer 'by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense." (People v. Smith (2013) 57 Cal.4th 232, 241; Manuel G., at p. 815 ["[A] defendant cannot be convicted of an offense against a peace officer ' "engaged in . . . the performance of . . . [his or her] duties " ' unless the officer was acting lawfully at the time the offense against the officer was committed"].) The rule requires that the officers be acting lawfully "when the defendant resisted arrest." (Manuel G., at p. 816; People v. Sibrian (2016) 3 Cal.App.5th 127, 133 [for a section 69 offense, "an officer must be acting lawfully when the resistance occurs"]; People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1418 [officer must be lawfully engaged in performance of duty at the time of the defendant's resistance].)
The rule that an officer must be acting "in the performance" of his or her duties " 'flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful . . . . [¶] . . . [T]he lawfulness of the victim's conduct forms part of the corpus delicti of the offense.' " (Manuel G., supra, 16 Cal.4th at p. 815.) "[W]here excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties." (People v. White (1980) 101 Cal.App.3d 161, 164; see also People v. Sibrian, supra 3 Cal.App.5th at p. 133.)
II. Analysis
Under the foregoing principles, we question whether—at least at the outset of the trial before Smith testified —the trial court could reasonably conclude A.S.'s description of Smith's aggressive behavior before police arrived upon the scene introduced via the 911 call had any tendency in reason to prove the elements of a violation of section 69 or any other disputed fact that was of consequence to the action. Whether Smith used force or violence in resisting the officers' attempt to restrain him, and whether the officers were lawfully executing their duties by using reasonable force at the time he resisted them, were the disputed issues for the jury on those counts. Smith's earlier behavior against pedestrians, which the officers did not observe, had little, if any, tendency in reason to establish those matters.
We need not resolve that question however. Even assuming arguendo the court abused its discretion in admitting the challenged evidence, on this record the error would be harmless under the relevant prejudice standard of People v. Watson (1956) 46 Cal.2d 818, 836. (See People v. Hall (1986) 41 Cal.3d 826, 834-835 ["As a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused's right to present a defense. Courts retain . . . a traditional and intrinsic power to exercise discretion to control the admission of evidence in the interests of orderly procedure and the avoidance of prejudice"].) Under that standard, this court may only reverse the judgment if the erroneous admission of evidence results in a miscarriage of justice. (Watson, at p. 836.) "[A] 'miscarriage of justice' should be declared only when the court, 'after an examination of the entire cause, including the evidence,' is of the 'opinion' that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Ibid.) With respect to improper admission of evidence, we ask under this standard whether there is " 'a reasonable chance' "—which is " 'more than an abstract possibility' " but need not be " 'more likely than not' "—that a result more favorable to defendant would have been reached had the jail calls not been admitted. (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041.) After examining the entire record, we conclude it is not reasonably probable the jury would have reached an outcome more favorable to Smith absent its consideration of the 911 call or A.S.'s testimony about Smith's earlier behavior toward pedestrians.
The evidence supporting the resisting executive officer offenses was strong. As we have stated, one of the main issues at trial was whether Officers H. and P. were lawfully performing their duties at the time they physically detained Smith. As such, the focus was not the moment of the initial stop or detention, but the reasonableness of the officers' use of force applied when Smith was resisting. (People v. Sibrian, supra, 3 Cal.App.5th at p. 133.) The officers testified they responded to a call about an aggressive individual. With this in the officers' mind, they contacted Smith, who was verbally aggressive, accusatory, and generally uncooperative. Due to Smith's erratic behavior, the officers suspected him of being under the influence of a controlled substance, a misdemeanor offense. Smith refused to cooperate with their instruction that he perform an evaluation of his intoxication, permitting the officer to go up one level of force and restrain Smith by taking his arm. The officers testified Smith went from "passive resistance" to "active resistance" or "assaultive behavior." By then, the officers were also aware Smith had access to the knife in his pocket. The jury could conclude that for their safety and consistent with their training on the force matrix, it was reasonable for the officers to physically restrain and handcuff Smith, so they could continue their investigation. However, Smith not only pulled away from the officers when they tried to restrain him, he resisted the officers' efforts to handcuff him after they got him to the ground. The officers testified they used the distraction blows to gain Smith's compliance, not to assault him. The body-worn camera footage is consistent with the officers' testimony of their encounter with Smith. To the contrary, there was little to no evidence from which the jury could conclude the officers' force in restraining Smith was unauthorized by the force matrix or so unreasonable or excessive as to permit a conclusion that the officers were not performing their lawful duties at the time Smith resisted them.
Although Smith was never physically violent with the officers, section 69 "need not involve any force or violence directed toward the [police officer]" but rather "force used by a defendant in resisting an offer's attempt to restrain and arrest the defendant is sufficient to support a conviction." (See, e.g., People v. Bernal (2013) 222 Cal.App.4th 512, 519 [holding the defendant's "forceful attempt to escape from [the officer] was enough"].) Smith admitted intentionally pulling his arm away from Officer P., which is enough force for resistance under section 69. Given the evidence strongly supporting the verdict on the resisting executive officer charges, we cannot say it is reasonably probable even a single juror would have harbored reasonable doubt as to Smith's guilt had they not heard A.S.'s 911 call or his trial testimony recounting Smith's behavior towards pedestrians before police arrived.
Smith asserts the challenged evidence was admitted "five times" during trial, including when the officers testified about the dispatch call, and the jury heard the most damaging versions at the outset of trial, "cementing in their minds the image of [Smith] as a violent, aggressive, crazed madman." But the record shows that before trial, defense counsel conceded the officers could testify about the nature of their radio call to the scene and counsel did not object when each officer described the dispatch. Each officer essentially repeated the conduct relayed by the 911 dispatcher: a person who was "verbally aggressive," "throwing punches," or "swinging his fists" at pedestrians. Thus, even if the trial court had excluded the 911 call and A.S.'s testimony, the jury would have still heard a virtually identical description of Smith's actions through each officer. And A.S.'s trial testimony about Smith's behavior ("rushing up toward people like he was going to charge them"; "coming at people in a threatening manner"; "waving his fists in the air . . . coming at people") was less violent than the conduct he reported in the 911 call ("trying to attack people"; "throwing punches at people"). On balance with each officers' testimony, the 911 call and A.S.'s testimony was not so much more inflammatory to permit a conclusion the jury would have been swayed to reach a different verdict. Further, even had the challenged evidence been initially excluded by the trial court, it would have become relevant impeachment evidence when Smith testified and denied harassing pedestrians prior to police arrival. (See People v. Contreras (2013) 58 Cal.4th 123, 152 [evidence that has a tendency in reason to prove or disprove any disputed fact includes evidence relevant to the credibility of a witness]; People v. Lankford (1989) 210 Cal.App.3d 227, 240 ["A defendant who chooses to introduce false or misleading evidence of his credibility risks prosecution rebuttal of that evidence by proof of relevant specific acts of his conduct"]; Evid. Code, §§ 780 [fact finder may consider matters relevant to the truthfulness of the witness's testimony], 787 [evidence of specific acts or conduct is admissible to attack or support the credibility of a witness in a criminal case].)
We acknowledge the prosecutor briefly mentioned the 911 call and A.S.'s testimony during both his closing argument and rebuttal and referred to Smith's actions as described therein as potential violations of the law. However, the prosecutor did not unduly emphasize or repeat the specific descriptions challenged by defense counsel, such as Smith attacking, threatening, and throwing punches at people. Rather, the prosecutor invoked the officers' testimony of the dispatch call: "a guy aggressively swinging at [passersby]." During rebuttal, the prosecutor referred to the dispatch call and the fact Smith had a knife to argue what Officer P. had in mind when he decided to restrain Smith. There was not a repeated focus on the challenged evidence during the prosecutor's closing arguments.
The prosecutor argued in part: "We have a 911 call regarding aggressive behavior. It's a potential violation of the law . . . [the officers] got to respond." Regarding A.S, he argued: "[A.S. said], I am not getting close to that guy. I am not going to deal with that guy. I am going to call the officers." The prosecutor stated again: "[The officers] have a 911 call about a guy aggressively swinging at [passersby], and they are going to go talk to him." During rebuttal, the prosecutor argued: "That's why Officer [P.] went hands on, not because he wanted to beat up [Smith] or some other reason, because [Smith] at this point was acting aggressively, and they are there for a call where he's acting aggressively, and he as you [sic] that knife." --------
Furthermore, after an approximately two and a half-day trial, the jury reached a verdict after only about five hours of deliberations. By then, the jurors heard the officers' testimony explaining why they used force to detain Smith and had watched each officer's body-worn camera footage several times. The jurors also heard Smith's testimony of the encounter and rejected his credibility. It is not for us to reassess the jury's credibility calls; the jury alone resolves conflicts in the evidence. (People v. Friend (2009) 47 Cal.4th 1, 41.) It was instructed at defense counsel's request not to conclude from evidence of Smith's uncharged conduct that he had a bad character or was disposed to commit crime. The jury did not submit any questions during deliberations. Smith points to no other indication the jurors were unduly influenced by the challenged evidence or hesitant in any way in reaching their verdicts. For the foregoing reasons, we conclude the court's presumed error in admitting the 911 call and A.S.'s testimony was harmless.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J. WE CONCUR: BENKE, Acting P. J. DATO, J.