Opinion
H043058
10-11-2018
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR VILLALOBOS, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. C1237574)
Defendant Salvador Villalobos appeals from a judgment entered after a jury found him guilty of resisting an executive officer by force or violence (Former Pen. Code, § 69 - count one), using or being under the influence of methamphetamine (Health & Saf. Code, § 11550 - count three), and possession of controlled substance paraphernalia (Health & Saf. Code, § 11364 - count four). The trial court suspended imposition of sentence and granted defendant three years' probation. On appeal, defendant contends: there was insufficient evidence to support his conviction for resisting arrest; and the trial court erred when it allowed police officers to testify as de facto experts on the use of force. He also requests that this court conduct an independent review of the in camera hearing on his Pitchess motion. We affirm the judgment.
The jury found defendant not guilty of battery on a person with whom he previously had a dating relationship (Pen. Code, § 243, subd. (e)(1) - count two).
The trial court also granted defendant's motion to dismiss his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 and denied his motion to reduce his conviction in count one to a misdemeanor pursuant to Penal Code section 17.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
I. Statement of Facts
Defendant and Ana Bertha Krenz were in a sexual relationship. At around midnight on July 24, 2012, Krenz and defendant went to the Capitol Hill Inn on Monterey Road in San Jose. They drank beer and smoked methamphetamine and marijuana. After Krenz plugged in an electronic device and the lights went out, defendant became scared. Though the lights came back on and Krenz tried to reassure him, defendant "just lost it." He "didn't know who [she] was" and thought she "had a demon in" her. He was "running and running," threw himself on the bed, wanted her to pray with him, and was screaming that "he had the devil inside of him." Defendant grabbed Krenz's shoulders, and when she told him to stop, he did. It appeared to Krenz that defendant was "coming in and out of reality." Defendant then put his methamphetamine pipe in his mouth, bit down on it, and broke it. Shortly thereafter, defendant went into the bathroom and Krenz tried to leave the room. However, defendant returned and tried to grab her leg. She managed to elude him and ran to the manager's office. She was screaming and crying as she banged on the door. Defendant followed Krenz and began talking to her.
Subhashandra Patel, the manager of the Capitol Hill Inn, heard Krenz screaming, "Help me. Help me." Krenz asked Patel to call 911 because defendant was not in "his right state of mind." Patel saw defendant, who was wearing only his underwear. Defendant was "out of his mind," "out of control," and "shaking and dancing and walking around." Patel was afraid, refused to let Krenz into the office, and called the police.
Officers Barbara Fujii and Jesser were the first police officers to arrive at the scene. Before Officer Fujii arrived, she knew that the motel was located in a high crime area known for drugs and violence. Since dispatch had informed her that the report involved a male and female who were fighting, Officer Fujii recognized that the call potentially involved domestic violence. She had been trained that domestic violence calls are particularly dangerous. She explained that a domestic violence call is an "unknown situation" involving "volatility of emotions." She also noted that if someone is under the influence during this type of call, the level of dangerousness increases because the officer does not know how an individual might react. In domestic violence cases, the protocol in Santa Clara County requires the officer to determine the primary aggressor and arrest that person.
When Officer Fujii arrived, she saw a woman crying and banging on the office door. The woman told Officer Fujii that her boyfriend was "acting crazy" and she was scared. Officer Fujii believed that "this was an ongoing emergency situation." The woman pointed to the motel room as defendant came out of the room. Defendant was wearing a pair of shorts and no shirt. Defendant went back into the motel room. As Officers Jesser and Fujii approached the room, defendant came out of the room. Defendant's conduct increased the potential for danger because the officers did not know what he had been doing in the room. According to Officer Fujii, defendant could have been hiding something or grabbing a weapon.
When defendant came out of the room, he had some unknown objects in his hand and he started to kneel. Officer Fujii could not tell what he was carrying besides a book. According to the officer, defendant was behaving oddly, that is, "coming out of the room, kneeling down as if he was praying." He was also mumbling. Officer Fujii suspected that he was either drunk or under the influence of a narcotic. The officers ordered defendant to stand up and show them his hands. Defendant slowly got up from the kneeling position and initially appeared to comply with their commands. As the officers approached defendant, they had him turn around because he was "slowly going with the commands." As Officer Fujii cuffed one hand, defendant started to pull away. When he was not complying with their commands, they took him down to the ground. Officer Fujii explained that it was easier to place someone in handcuffs on the ground than while he was standing, because an individual who was standing could try to run away or turn around and fight.
Officer Fujii later saw that defendant was carrying a Bible in addition to the book.
When Officer Carlos Melo arrived, he saw a woman crying near the motel office. According to Officer Melo, several people had called about the incident, including a report that a man was chasing a woman on Monterey Road and she was crying for help. He also recognized that the call could involve domestic violence, which would render it particularly dangerous. He further noted that when drugs or alcohol are involved, people make poor decisions. As Officer Melo approached Officers Jesser and Fujii, he saw that they were unable to handcuff defendant because he was resisting. Officer Melo grabbed one of defendant's arms and said, "Hey, calm down. Relax." Defendant ignored the officers' commands and yelled and screamed "things that didn't make sense." When defendant turned to face Officer Melo, the officer was concerned that defendant would either run into the motel room or out onto the street.
There was no evidence presented at trial that any of the percipient witnesses had seen a man chasing a woman down Monterey Road.
Officers Melo, Fujii, and Jesser were eventually able to pull defendant to the ground. Defendant "appeared to be very strong." As Officer Melo tried to handcuff him, defendant rolled onto his back. When defendant eventually ended up on his stomach, he tried to "head butt" Officer Melo by moving his head back towards Officer Melo while Officer Melo was on top of him. At this point, Officer Melo decided that he needed to control defendant before the situation became worse. Officer Melo applied a carotid restraint on defendant, and it appeared that defendant "was going to give up or he went unconscious." Officer Melo was about to grab defendant's arm to handcuff him when defendant started to fight again. Defendant was screaming "something like, 'Jesus, demons, Burger King.' " Officer Melo concluded that defendant was very high on drugs. Defendant tried to punch Officer Melo, who then punched defendant three or four times in the face. According to Officer Melo, "[i]t was like I wasn't even punching him." Officer Melo then put defendant in an "arm lock" to prevent defendant from hitting him while he waited for other officers to handcuff defendant. At some point, Officer Melo felt defendant's elbow dislocate. However, defendant had no reaction to this injury and tried to get on top of Officer Melo. Officer Melo responded by using the heel of his foot to push defendant down, but this maneuver had no effect on defendant.
When Lieutenant Richard Weger arrived, he noticed that defendant entered the motel room as the officers entered the parking lot. Since he was concerned that defendant was fleeing or going to arm himself, he broadcast this information so that additional officers would respond. When he saw that defendant was engaged in a struggle with Officers Fujii and Jesser, he went to assist them. He struck defendant with his baton and his fists, but defendant did not respond. Lieutenant Weger and Officer Ronald Hughes eventually restrained defendant's legs, and he kicked them. More officers, estimated between eight and 12, arrived and restrained defendant by putting him into handcuffs and a WRAP device, which immobilized his arms and legs.
When Sean Bradley Link, a paramedic, arrived, defendant was moving violently as the police attempted to handcuff him. While defendant was being transported by ambulance to the hospital, defendant told Link that he had used methamphetamine and alcohol. It was stipulated at trial that defendant's blood tested positive for methamphetamine.
Mark Burry, a criminalist, testified as an expert on the effects of methamphetamine on the human body. Methamphetamine increases the heart rate, blood pressure, and body temperature. A methamphetamine user has rapid speech, a dry mouth, and an inability to sit still. The effects last up to six to eight hours. Aggressiveness can also be a symptom of being under the influence of methamphetamine. High doses or repeated use can cause psychosis in which the individual may have hallucinations or delusions, usually of paranoia.
II. Discussion
A. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence to support his conviction for resisting an officer in the performance of his duties.
"Where, as here, a defendant challenges the sufficiency of the evidence on appeal, we review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—evidence that is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Hubbard (2016) 63 Cal.4th 378, 392.)
Former section 69 of the Penal Code provided: "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."
At issue in the present case is whether Officer Fujii was lawfully performing her duty when she put a handcuff on defendant. Defendant contends that the officer's act was a de facto arrest for which there was insufficient evidence of probable cause. We conclude that the detention of defendant was supported by reasonable suspicion that he was engaged in criminal activity and the attempt to handcuff him did not transform the detention into an arrest.
"When the seizure of a person amounts to an arrest, it must be supported by an arrest warrant or by probable cause. [Citation.] Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime. [Citation.] . . . ' "The substance of all the definitions of probable cause is a reasonable ground for belief of guilt," ' and that belief must be 'particularized with respect to the person to be . . . seized.' [Citation.]" (People v. Celis (2004) 33 Cal.4th 667, 673.) "But 'not all seizures of the person must be justified by probable cause to arrest for a crime.' [Citation.] . . . Thus, an officer who lacks probable cause to arrest can conduct a brief investigative detention when there is ' "some objective manifestation" that criminal activity is afoot and that the person to be stopped is engaged in that activity.' [Citations.]" (Id. at p. 674.) "A brief stop and patdown of someone suspected of criminal activity is merely an investigative detention requiring no more than a reasonable suspicion. [Citation.]" (Ibid.) " '[T]here is no hard and fast line to distinguish permissible investigative detentions from impermissible de facto arrests. Instead, the issue is decided on the facts of each case, with focus on whether the police diligently pursued a means of investigation reasonably designed to dispel or confirm their suspicions quickly, using the least intrusive means reasonably available under the circumstances.' [Citations.]" (Id. at pp. 674-675.)
Placing handcuffs on a suspect does not always transform a detention into an arrest. (Celis, supra, 33 Cal.4th at p. 675.) "Generally, handcuffing a suspect during a detention has only been sanctioned in cases where the police officer has a reasonable basis for believing the suspect poses a present physical threat or might flee. [Citation.] . . . Circumstances in which handcuffing has been determined to be reasonably necessary for the detention include when (1) the suspect is uncooperative; (2) the officer has information the suspect is currently armed; (3) the officer has information the suspect is about to commit a violent crime; (4) the detention closely follows a violent crime by a person matching the suspect's description and/or vehicle; (5) the suspect acts in a manner raising a reasonable possibility of danger or flight; or (6) the suspects outnumber the officers." (People v. Stier (2008) 168 Cal.App.4th 21, 27-28.)
Defendant contends that handcuffing defendant was not reasonably necessary for the detention. He emphasizes: he complied with the officers' commands; the officers had no information that he was armed, about to commit a violent crime, or had committed a violent crime; and he was outnumbered by the officers.
However, defendant's conduct raised a reasonable possibility of danger or flight. The officers responded to a call that a male and female were fighting in an area known for drugs and violence. The call potentially involved domestic violence and this type of call was particularly dangerous. Moreover, the level of dangerousness increased if a suspect was under the influence during this type of call. The woman, who appeared to be the victim, told Officer Fujii that her boyfriend was "acting crazy" and that she was scared. Defendant, who was wearing only underwear or shorts, came out of the motel room, but then went back into it. As the officers approached the room, defendant again came out of the room. The officers did not know what he had been doing in the room, thereby increasing the potential for danger. Defendant, who was carrying a book and a Bible, knelt down "as if he was praying," and began to mumble. When the officers ordered him to stand up and show his hands, defendant slowly complied. Based on the woman's statements and defendant's behavior, Officer Fujii reasonably suspected that defendant was the perpetrator of domestic violence and that he was either drunk or under the influence of a controlled substance. Given his very odd and unpredictable behavior, Officer Fujii also reasonably believed that defendant posed a physical threat or might flee and thus handcuffing him was reasonably necessary for the detention. Accordingly, there was substantial evidence to support the finding that Officer Fujii was lawfully performing her duty.
B. Admissibility of Police Officers' Testimony
Defendant next contends that he was deprived of a fair trial under the Fifth and Fourteenth Amendments of the United States Constitution when the trial court allowed police officers to testify as de facto experts on the use of force.
1. Hearings on the In Limine Motion
Defense counsel brought an in limine motion to exclude evidence of the San Jose Police Department's policy on the use of force. At the hearing on the motion, defense counsel argued: "My overarching concern about bringing in this type of evidence -- and let me distinguish between training and experience versus commenting on their opinion about the force that they employed and how it's condoned by the office. I don't think that . . . that's relevant whether or not the San Jose Police Department or agency condones that type of force, agreed with that type of force, approved that type of force, and therefore, ipso facto, it's considered reasonable force as far as the department is concerned. [¶] I don't think [it] . . . has any [bearing] or is relevant to what the jury needs to decide, which is whether or not they think this is a legally reasonable force, because the manual does not use a definition that is included in the Penal Code or a jury instruction. Their manual has their own definition about reasonable force. [¶] . . . [¶] So I would like to exclude any commentary with respect to how this force is deemed okay by the police department, because I think it implicitly vouches in court for the behavior that was used on the date of the incident when, again, that enters into the arena of deciding the ultimate issue, which is reasonable use of force versus excessive use of force, which translates into lawful use of force. Those are all things that are left for the jury to decide as to what should be considered reasonable in this situation."
The prosecutor responded that she would not elicit an opinion from the officers as to whether the use of force was reasonable under the San Jose Police Department's policy. She intended to ask the officers who were involved in the incident regarding how they were trained in the use of force, which was relevant to their state of mind and whether their use of force was reasonable.
Defense counsel continued to object to evidence of the officers' training as justification for the use of force. She asked whether the officers would be questioned, "Based upon your training, were you taught that this was the appropriate way to respond to this type of event? . . . I think that is inappropriate because that acts as a method of vouching for the behavior and labeling it as reasonable without using that word, and we're now backdooring in how this training is the gold standard with respect to how they behave. And because it's in compliance or comports with their training, they therefore acted reasonably."
The trial court ruled: "Okay. I think I [understand]. So let me make a ruling now that I think will allow us to go on. It won't be a complete answer, but I will deny the motion inasmuch as it restricts a question that calls for, what is your training and experience, for example, or have you been trained on, you know, using force in certain situations? What is your experience, et cetera. I think that is fair game. [¶] But what I'm going to do -- anything beyond that, I think I'm just going to require the People to make an offer of proof before the officer testifies to outline what your line of questioning will be with respect to a specific witness so that we can flush this out."
The issue was discussed again the following day. Defense counsel argued: "For me, the concern about going into the training itself I don't have an objection to. My problem is when the same officer who is involved in the event is now legitimizing and characterizing his training as being authorized, approved, and what was taught is by his department, by his agency, by other officers. Implicit -- inherently implicit in that statement alone: What I did was okay. And as I stated yesterday, I think that that causes the jury to improperly use that testimony as a substitute for what they are supposed to figure out, which is what is reasonable. [¶] . . . [¶] . . . [¶] And, again, that makes me very nervous now that we're getting up to a position where they're essentially off tendering expert testimony, in my opinion, on the ultimate issue, which is whether or not they did use reasonable force in that situation, which again is why we're here. They're here to decide if reasonable force was used, and any other law enforcement characterization or implicit affirmation that that's what their training allowed them to do, invades the province of the jury with respect to that topic."
The trial court referred to CALCRIM No. 2670: "And interestingly, the first paragraph of that talks about the general rule for a peace officer. A peace officer may use reasonable force to arrest or detain someone, et cetera, and then when it talks about the defendant or person being arrested, their use of reasonable force, there's actually a definition. It's the last bracketed portion of 2670. [¶] And the instruction reads: A person being arrested uses reasonable force when he or she, one, uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and, two, uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection. [¶] . . . But it seems that the formulation for the suspect would apply equally and sensibly to the police officer's actions. [¶] In other words, a police officer, to paraphrase, who's arresting someone or trying to arrest someone, uses reasonable force when he uses that degree of force that he actually believes is reasonably necessary to effect the arrest; and, two, uses no more force than a reasonable officer in the same situation believes necessary to effect the arrests. Something to that effect. [¶] And we can discuss that potentially when we talk about the final instruction that is given to the jurors. But for purposes of the in limine motion, I think if that is a reasonable definition of reasonable force from the officer's perspective, that the training and experience are relevant, at a minimum, to the issue, and then the only question for me is, notwithstanding the relevance, is there some reason to exclude it, maybe under Evidence Code Section 352. Because there's a substantial danger that its probative value is outweighed by the risk that it could mislead the jury. [¶] It could potentially mislead the jury if the officer's testimony or argument is such that, 'This is the policy. We followed the policy, therefore we acted reasonably.' That would potentially mislead the jury, I think, particularly if the jurors follow that formulation as opposed to the instructions that are being given, but I don't -- based on [the prosecutor's] offer of proof so far, I don't think that's the nature of the testimony we're going to hear. [¶] So what I'm going to do at this stage of the case is to deny the motion in limine and allow defense counsel to make an objection or motion to strike with respect to any evidence that would have a tendency or any question that would lead to that testimony that would have a tendency to mislead the jury by substituting protocol or policy on reasonable force for the legal definition that they ultimately will be given. So feel free to object after a question or move to strike after. I think that's about all the guidance that I can give. And I think what [the prosecutor] has offered with respect to how she thinks the testimony will come in doesn't, at this stage, raise a substantial risk that there's going to be confusion. And if there is, then I think it is appropriate to give some form of limiting instruction, which I'll invite counsel to propose at the appropriate time."
2. Testimony on the Use of Force
Defendant contends that the following testimony by Officer Melo and Lieutenant Weger constituted improper expert testimony on the use of force.
As to Officer Melo, the following exchanges occurred. "[PROSECUTOR] Q. Now, do you have training on how to lawfully effectuate an arrest? [¶] A. Yes. [¶] [DEFENSE COUNSEL]: Objection, Your Honor. Calls for legal conclusion. Move to strike. [¶] THE COURT: Overruled. [¶] A. Yes. I do."
"[PROSECUTOR] Q. Okay. Do you have training on use of force as it relates to either detaining or arresting a suspect? [¶] A. Yes. [¶] Q. Okay. And what kind of training do you have on that? [¶] A. So again, in the academy, the six-month academy, we had an extensive session of how to detain somebody, if someone's resisting arrest, and patrol tactics. Also, again, during that yearly training phase, we do -- we'll go over those trainings; and, additionally, I on my own have gotten additional training. [¶] Q. Now, what kind of additional training have you had? [¶] A. Well, I am -- I'm a black belt in jujitsu, and I teach self-defense to police officers, children, women, that sort of thing."
"[PROSECUTOR] Q. Okay. So I want to talk about the things on your duty belt and kind of how it relates to using force to detain someone. [¶] A. Okay. [¶] Q. Okay. So what -- how do you use the things on your duty belt to attempt to detain someone? [¶] A. So the Taser -- so for example, you're talking about somebody resisting and someone in a legal detention? [¶] [DEFENSE COUNSEL]: Your Honor, I'm going to object at this time and ask to approach." The sidebar discussion was not reported. "[PROSECUTOR] Q. Officer Melo, if you could continue. [¶] A. So my question was, are you referring to somebody who is resisting, or what is your question. [¶] Q. Yes. Someone who's resisting. [¶] A. Okay. So the Taser, the Taser -- it kind of resembles a gun but doesn't really look like a gun. It kind of sort of just resembles it. And you pull it out. It has, like, a small voltage of electricity that is supposed to render the person motionless and give you control of them. How that works is, once you press the trigger, two, I guess, wires come out with, like, a little fishhook at the end, and they're supposed to attach to the clothing and the skin on individuals, and once you press the trigger, that current of electricity, a very low current, is supposed to render the person unconscious. I've been tasered myself in training, and it does render you, you know, it doesn't -- it's -- I didn't want to move when I was tasered. The problem with the Taser is it doesn't always make contact with the clothing or the skin. It slips off and it's sometimes ineffective. I have personally have seen situations where tasing somebody, and the person's used to it, and they just ripped it off -- again, high on drugs -- ripped the wires from their skin and kept on fighting. [¶] The baton is used as an impact weapon when somebody's being combative, and we're allowed to do that to control the person with baton strikes or maybe pushing them with just kind of like a pushing motion. [¶] [DEFENSE COUNSEL]: Your Honor, I would object to the witness using the term 'we're allowed to do that.' [¶] . . . [¶] THE COURT: I'll strike that portion of the response. Next question."
"[PROSECUTOR] Q. And when do you use [pepper spray]? [¶] A. Same thing, when somebody's trying to fight or being, you know, resistant. And for that one, though, you need actual distance to use it, because you don't want to get the pepper spray, because -- this also has happened to me, where there's been a pepper spray situation, and then the officer gets pepper sprayed as well. So for the pepper spray you need distance to actually pepper spray the person if they're not complying, and then hopefully they will give up. The problem with that too, also, is some people don't respond to pepper spray and it just upsets them even more and they continue to fight. [¶] Q. So what about using your own hands or your body in order to stop someone who's resisting? [¶] A. Yes. [¶] Q. And how does -- when have you used that? [¶] A. I used it several times. I usually -- my reasoning is when -- if I'm going to put my hands on somebody, I feel that I should be able to try to control them at this point and try to take them to the ground, a safe situation where I'm able to control them better. If I don't have that, like, I don't have that touch with them, this is the part then you can go to other tools such as your baton, pepper spray, or Taser. But usually if you can put your hands on somebody, most people are going to comply and you can just handcuff them. [¶] Q. What about -- so the one thing we haven't talked about is your duty weapon. [¶] A, Yes. [¶] Q. So when would you use your duty weapon? [¶] A. I would use my duty weapon if I feel in a situation where my life is in danger and I have no other option, but to use it -- or if the life of another person is in danger and there's no other option. [¶] Q. Is this kind of a last resort for you? [¶] A. Correct. Yes."
The following exchanges occurred between the prosecutor and Lieutenant Weger. "[PROSECUTOR] Q. So I want to talk a little bit -- what is your training in the use of force -- training in the use of force for police officers? [¶] A. Well, going back to the reserve academy, the basic police academy, and even the FBI academy, we learn about the type of force that we're allowed to use to either effect arrest, prevent an escape, or overcome resistance. [¶] [DEFENSE COUNSEL]: And, Your Honor, I would object to the word 'allowed to use' and move to strike. [¶] THE COURT: All right. I will entertain a limiting instruction a little bit later. I'll leave the testimony as it is. [¶] Q. Now, what are the different type of options regarding force available to a police officer that's on duty? [¶] A. Okay. We used to call it, when I first was hired in the '90s, we had an escalation of force. That was -- that terminology has kind of gone out the window. Now it's a force continuum. [¶] So we have many tools available to us. Deadly force being the highest level of force. And that would be the use of a handgun or some sort of firearm. From there we have -- the lowest levels of force are voice control. Voice control is the lowest form of force that we can use on an individual followed by hands. We carry pepper spray, a Taser. Those are just some of the forms of force that we could use. Carotid restraint is a very high level of force right below deadly force in the San Jose policy. There's others also. [¶] Q. And before using some kind of physical force, like the hands and body, which I think you said was one of the lower levels, are there things that you do prior to using that kind of physical force? [¶] A. Well, again, in the early part of my career, there was an escalation of force. So officers oftentimes felt that they needed to do one level of force before moving on to another, and that's really not true. The officer is supposed to pick that level of force which they believe is going to be effective. [¶] Q. And when you say effective, can you explain a little further. Do you mean in responding to a situation that's in front of them? [¶] A. That's correct. [¶] [DEFENSE COUNSEL]: Objection. Leading. [¶] THE COURT: Sustained. I'll strike the response. [¶] [PROSECUTOR] Q. When you say the level of force, I think -- what was the word? -- necessary, what did you mean by that? [¶] A. So every situation is different. So if I come across a situation where a subject is armed, I'm obviously not going to start way down at voice and hands. So just every situation is very, very different, and the officer has to evaluate each given situation and determine which level of force to use. [¶] Q. Is the option to use deadly force something that you think of as a last resort? [¶] A. Deadly force is the highest level of force, but it -- sometimes it may be the only resort. So no, I would not ever say the last resort. If that's your only feasible option and none of the other force options will work, that may be the only reasonable option."
Defendant points out that no limiting instruction regarding the officers' testimony was discussed or given. He also notes that the prosecutor stated five times in closing argument that an officer may use "the amount of force necessary to actually effectuate the arrest," and concluded, "If they can use the amount of force necessary to actually effectuate the arrest and nothing was working, it is not excessive."
3. Analysis
To support his contention that the admission of the officers' testimony violated his right to due process, defendant relies primarily on People v. Brown (2016) 245 Cal.App.4th 140 (Brown).
Defendant's reliance on Brown is misplaced. In that case, the defendant was charged with a violation of former Penal Code section 69. (Brown, supra, 245 Cal.App.4th at p. 145.) An expert witness testified regarding police officer " 'defensive tactics,' " the legal authority for the use of force, and the concept of reasonable force as defined by the United States Supreme Court. (Id. at p. 148.) The expert witness also considered a hypothetical situation based on the facts in Brown and rendered an opinion as to how the officers were trained to respond. (Id. at pp. 148-149.) The Brown court held that the testimony was inadmissible. (Id. at pp. 165-172.) In contrast to Brown, here, the prosecutor did not attempt to qualify the officers as experts on the use of force and the trial court did not qualify them as such. Moreover, none of the officers rendered any opinions regarding their training or experience as it related to the use of force in the present case. (Evid. Code, § 801 [allowing for the admission of expert testimony "in the form of an opinion"]; see also People v. Jablonski (2006) 37 Cal.4th 774, 823 ["the prosecutor did not attempt to qualify [the witness] as an expert on that subject, nor did the court designate him as such. . . . [D]efendant cites no relevant authority for his assertion that a witness becomes a de facto expert simply because his or her personal observations may be partially informed by some professional training"].) Thus, defendant has failed to support his contention that his right to due process was violated.
Defendant also contends that the evidence of the officers' training was neither relevant nor probative and thus inadmissible. But defense counsel specifically stated that she did not object to any testimony by the officers regarding their training. Thus, this contention has been forfeited. (Evid. Code, § 353, subd. (a).)
Defendant argues that the testimony of Lieutenant Weger and Officer Melo provided an inaccurate legal definition.
Officer Melo testified that when a suspect is combative, hitting him with a baton is something that "we're allowed to do . . . ." However, the trial court sustained defense counsel's objection and struck the testimony.
As to Lieutenant Weger, defendant acknowledges that he "did not testify on the law as such." Instead, he argues that Lieutenant Weger "was permitted over objection to refer to the entire range of weapons available to the police as 'force we are allowed to use.' " Lieutenant Weger testified that in the police and FBI academies, officers "learn about the type of force that we're allowed to use to either effect arrest, prevent an escape, or overcome resistance." The trial court stated that it would "entertain a limiting instruction a little bit later" and would "leave the testimony as it is." Lieutenant Weger then testified regarding the use of deadly force, voice control, pepper spray, Taser, and carotid restraint. He also testified that officers are "supposed to pick that level of force which they believe is going to be effective" and that "the officer has to evaluate each given situation and determine which level of force to use." Defendant claims that Lieutenant Weger "testified implicitly that any force option physically available to an officer is sanctioned, legal, and therefore reasonable, as long as it is 'effective.' " However, Lieutenant Weger never testified that the types of force used on defendant were permitted under the training he had received. More importantly, even if the lieutenant's testimony was ambiguous, the jurors were instructed that they "must follow the law as [the trial court] explain[s] it to" them. The trial court instructed the them with CALCRIM No. 2670 that "[s]pecial rules control the use of force. A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense." Thus, defendant has not established that the admission of this testimony was prejudicial.
Defense counsel never proffered a limiting instruction and the trial court did not give one.
Defendant also claims that the prosecutor's argument emphasized the erroneous definition, that is, if someone is resisting, an officer may use "the amount of force necessary to actually effectuate the arrest." The prosecutor's argument was consistent with CALCRIM No. 2670. --------
Assuming that the admission of the officers' testimony was erroneous, defendant has failed to show prejudice. None of the officers testified that the use of force on defendant was reasonable. The jury was instructed pursuant to CALCRIM No. 2670 regarding the rules on the use of force and that it was required to decide whether the force used was reasonable. The term "reasonable" informed the jury that the standard was an objective one. Counsels' arguments to the jury focused on whether the officers' use of force was reasonable or excessive. Under these circumstances, the jury would have understood its role to decide the issue of whether the officers' use of force was reasonable. Thus, even assuming that defendant's federal due process rights were implicated by the admission of the challenged evidence, any error was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.)
Defendant next argues that he was denied the effective assistance of counsel because his counsel failed to object to or move to strike the challenged testimony.
" 'In order to establish a claim of ineffective assistance of counsel, defendant bears the burden of demonstrating, first, that counsel's performance was deficient because it "fell below an objective standard of reasonableness [¶] . . . under prevailing professional norms." [Citations.] . . . If a defendant meets the burden of establishing that counsel's performance was deficient, he or she also must show that counsel's deficiencies resulted in prejudice, that is, a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." [Citation.]' [Citation.]" (People v. Lopez (2008) 42 Cal.4th 960, 966.)
Here, assuming that defense counsel's performance was deficient when she failed to proffer a limiting instruction in response to Lieutenant Weger's testimony and to object to the prosecutor's argument that an officer may use "the amount of force necessary to actually effectuate the arrest," defendant's claim fails. As previously discussed, this evidence and the prosecutor's argument were not prejudicial. Thus, it is not reasonably probable that the result would have been more favorable to defendant without any such errors.
C. Review of Police Records
Defendant requests that this court review the in camera hearings on his Pitchess motion.
On October 17, 2013, defendant filed a Pitchess motion. Defendant sought disclosure of any "evidence of complaints of; excessive force, aggressive conduct, unnecessary violence, false statements in reports, any conduct arguably evincing moral turpitude, or any other evidence of or complaints of dishonesty" by Officers Fujii, Guerra, Hughes, Jesser, Kurrle, McCarthy, McDonald, and Melo as well as those of Sergeant Stewart and Lieutenant Weger. After the trial court found that defendant had established good cause for discovery and held in camera hearings on November 15 and 22, 2013, and January 31, 2014.
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.) 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 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.)
We review the trial court's ruling on a Pitchess motion for abuse of discretion. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 992.)
Here, the trial court conducted in camera hearings and reviewed personnel files as well as the Internal Affairs complaints. The trial court granted the motion and ordered the disclosure to the defense of contact information for certain individuals who had filed complaints about the officers. We have reviewed the transcripts of the hearings and find that those transcripts are adequate to afford meaningful review. 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.