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People v. Lee

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
Nov 8, 2019
C086290 (Cal. Ct. App. Nov. 8, 2019)

Opinion

C086290

11-08-2019

THE PEOPLE, Plaintiff and Respondent, v. TRAVIS CONNOR LEE, Defendant and Appellant.


NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 17F3559)

A jury found defendant Travis Connor Lee guilty of one count of resisting an executive officer, Sergeant Eric Haynes (Pen. Code, § 69). The jury found defendant not guilty of two counts of resisting an executive officer as to officers Scott Bailey and David Starkey. In a bifurcated proceeding, the court found true that defendant had previously served a prison term (§ 667.5, subd. (b)) and he was released on bail when the present crime occurred (§ 12022.1).

Undesignated statutory references are to the Penal Code.

Defendant successfully moved pursuant to section 1118.1 to dismiss one count of misdemeanor battery on a police dog (§ 600, subd. (a)).

On appeal, defendant argues: (1) the trial court erred in failing to instruct the jury on the lesser included offense of resisting a public officer under section 148, subdivision (a)(1), and (2) the court erroneously denied him most of the pretrial discovery he requested pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Additionally, defendant requests that we review the sealed transcript of the in camera hearing that was conducted on his Pitchess motion to ensure the trial court properly followed appropriate procedures as to the discovery it did order.

Based on our review, we conclude the trial court did not abuse its discretion in finding that no additional disclosable evidence responsive to defendant's request for records regarding excessive force complaints against Haynes existed. We reject defendant's claim of instructional error, but agree the trial court erred in declining to conduct an in camera review of records regarding excessive force complaints as to Bailey and false police reports as to all three officers. Therefore, we conditionally reverse the judgment for the purpose of conducting a new discovery hearing in camera.

I. BACKGROUND

On July 1, 2017, at around 7:50 p.m., Anderson Police Department officers were dispatched to a location behind a strip mall based on a report of a woman with a rifle arguing with someone in the bushes. Haynes, Starkey, and Bailey arrived separately, each in uniform. They got out of their vehicles and walked down a dirt path toward a creek. Haynes is a K-9 handler, and he was accompanied by Iro, a German Shepherd. Bailey was holding his rifle and Starkey had his handgun out.

The officers saw defendant under an overpass, on the other side of the creek. Defendant was holding something black in his right hand. Haynes thought the item was a sawed-off shotgun or a large pistol. Starkey thought the item looked like a bladed weapon, such as a machete, or a gun. Bailey thought the item was a shotgun or a large pistol. Starkey told defendant "countless" times to drop the weapon. Haynes told defendant to drop the weapon or he would send Iro. Defendant responded by pointing the item at the officers. Defendant eventually lowered the weapon to his side. He ultimately dropped it on the ground.

Defendant did not comply with commands to back away from the weapon or put his hands all the way up. Instead, he stared at the officers and clenched his fists. Bailey asked if defendant had any weapons on him, and defendant nodded affirmatively. Defendant took a "bladed stance" with his right foot back and his right hand behind his body as though to draw another weapon. Starkey told defendant to turn around, which defendant eventually did. Starkey then told defendant to lie down on the ground. Defendant stayed on his feet and bent at the waist, putting his hands on the ground. Haynes told defendant to get on the ground or he would send his dog, but defendant did not get on the ground. Defendant turned and stared at Bailey's firearm, and Haynes gave Iro the command to apprehend. Iro ran to defendant, bit him on the calf, and held his bite. Defendant spun and tried to kick Iro. Haynes testified he jumped on top of defendant and tried to handcuff him while straddling his lower back, but defendant pulled his right arm away. Defendant "had an immense amount of strength," and Haynes could not pull defendant's hand back. Starkey testified Haynes was trying to get control of defendant, but defendant was flailing about, kicking, and appeared to swing his arm back and punch Haynes. Bailey testified defendant was consistently thrashing around.

Haynes punched defendant in the rib cage area five to eight times. This seemed to have very little effect on defendant. Defendant started pushing himself up off the ground. Haynes punched defendant in the head. Starkey grabbed defendant's left arm and Bailey kicked defendant in the face. Defendant immediately dropped to the ground and his head snapped back. Defendant pulled a handcuff out of Haynes's hand, and Haynes broke one of his hands in the struggle. Defendant was eventually handcuffed about two minutes after the officers encountered him. At this point, Iro released his bite at Haynes's command.

The object defendant had been holding was not a gun or a machete, but rather a metal piece of pipe with a three-inch plastic flap attached by three metal clamps with a J-frame on one end. It looked like a commercial truck mud flap that had been cut off.

II. DISCUSSION

A. Lesser Included Offense

Defendant argues the trial court erred in failing to instruct the jury on the lesser included offense of resisting a public officer under section 148, subdivision (a)(1).

"The trial court must instruct on general legal principles closely related to the case. This duty extends to necessarily included offenses when the evidence raises a question as to whether all the elements of the charged offense are present." (People v. DePriest (2007) 42 Cal.4th 1, 50.) "Nevertheless, 'the existence of "any evidence, no matter how weak," will not justify instructions on a lesser included offense . . . .' [Citation.] Such instructions are required only where there is 'substantial evidence' from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense." (Ibid.)

"For purposes of determining a trial court's instructional duties, . . . 'a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' " (People v. Smith (2013) 57 Cal.4th 232, 240 (Smith).)

Section 69 imposes felony or misdemeanor liability on anyone "who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty." (§ 69, subd. (a).) "The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by 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.)

Section 148, subdivision (a)(1) imposes misdemeanor liability on anyone "who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or employment."

"[S]ection 148[, subdivision ](a)(1) is not a lesser included offense of section 69 based on the statutory elements of each offense." (Smith, supra, 57 Cal.4th at p. 241.) However, "[a] person who violates section 69 in the second way—by 'knowingly resist[ing], by the use of force or violence, such officer, in the performance of his duty'—also necessarily violates section 148[, subdivision ](a)(1) by 'willfully resist[ing] . . . any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment.' " (Ibid.) Thus, where, as here, the accusatory pleading charges the defendant with both ways of violating section 69, section 148, subdivision (a)(1) is a lesser included offense of section 69 as alleged in the accusatory pleading. (Smith, supra, at p. 243.) Nonetheless, this "does not end the analysis because a trial court is not required to instruct the jury on a necessarily included lesser offense ' "when there is no evidence that the offense was less than that charged." ' " (Id. at p. 245.) Here, the trial court was not required to instruct the jury on section 148, subdivision (a)(1) if "[t]here was no evidence that defendant committed only the lesser offense of resisting the officers without the use of force or violence." (Smith, supra, at p. 245.) Further, even if the trial court failed to instruct on the lesser included offense, we may not reverse defendant's conviction unless we conclude it is reasonably probable he would have obtained a more favorable outcome had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142, 178.)

Here, the jury was instructed only on the second way of violating section 69.

The People contend the trial court was not required to instruct on the lesser included offense as to count one because there was no substantial evidence from which the jury could conclude defendant only resisted Haynes without the use of force or violence. Defendant does not directly argue the People have improperly limited the question of instructional error to count one. He contends "the jury would have had a rational basis to conclude [he] resisted, delayed, or obstructed the officers in the performance of their duties when he was slow to comply with their commands, but did not resist using force or violence."

Whether viewed in the context of the need to instruct or harmless error, there was no basis on which the jury could have concluded defendant only passively resisted Haynes in the performance of a lawful duty. It is not relevant that Haynes testified defendant did not punch him or that Bailey testified he never saw defendant punch or kick an officer or close his hands around an officer's body. All the officers testified defendant resisted Haynes's attempts to restrain and handcuff him with force. "There was no contrary evidence disputing the officer's description of the struggle on the floor." (People v. Carrasco (2008) 163 Cal.App.4th 978, 986.) Thus, there was no substantial evidence to support a theory that defendant only passively resisted Haynes. (See ibid. ["[T]he jury would have had no rational basis to conclude appellant wrestled with the officers, for which they convicted him of resisting or delaying an officer, but the struggle did not involve force or violence"].) Rather, the issue was whether defendant was forcibly resisting the performance of a lawful duty or whether the officers used excessive force that would have rendered defendant not guilty of either the lesser or the greater offense. (See People v. White (1980) 101 Cal.App.3d 161, 167 ["if [the jury] found the arrest was made with excessive force, the arrest was unlawful and they should find the defendant not guilty of those charges which required the officer to be lawfully engaged in the performance of his duties"].) On these facts, we cannot conclude the trial court erred in not instructing the jury on section 148, subdivision (a)(1) as to count one. Additionally, any error in failing to instruct on the lesser included offense generally was harmless as defendant could not have obtained a more favorable verdict under the circumstances. B. Pitchess Motion

1. Trial Court Proceedings

Prior to trial, defendant filed a Pitchess motion seeking discovery of certain personnel records belonging to Haynes, Starkey, and Bailey. As to Haynes and Bailey, the motion requested records "regarding any complaints of misconduct, false testimony, false police reports, untruthfulness, excessive force, aggressive conduct, and false arrest." As to Starkey, the motion sought records regarding "any false testimony, false police reports, untruthfulness, or misconduct."

The trial court conducted a hearing to determine whether good cause existed for the discovery requests. The attorney who appeared on defendant's behalf at the hearing specified that only the most recent declaration in support of the motion should be considered by the court.

The declaration was signed by defendant's trial counsel. --------

The court found that only a few paragraphs in the declaration stated factually sufficient information to be considered:

"22. I am informed and believe that during the arrest, Sgt. HAYNES began physically attacking defendant without provocation and was later joined by Officer BAILEY.

"23. I am informed and believe that despite Sgt. HAYNES'[s] claim that [defendant] was not fully on the ground, that [defendant] in fact got on the ground and Sgt. HAYNES still decided to deploy a K-9 attack on him.

"[¶] . . . [¶]

"28. I am informed and believe that Sgt. HAYNES suggested 'overall aggressive demeanor' as a justification for use of force, but that the movements alleged were not aggressive and that [defendant] did not maintain a so-called bladed stance, or physically react except possibly in fear.

"[¶] . . . [¶]

"30. I am informed and believe that Sgt. HAYNES suggested a possible weapon could be on [defendant]'s person based on him 'reaching back' but [defendant] did no such thing and there was no evidence of him being armed."

The court found a plausible factual scenario of excessive force as to Haynes based on the deployment of the dog when defendant was on the ground and unarmed as pled in the declaration, and that in camera review was appropriate regarding complaints of his use of excessive force. The court found there was insufficient information regarding Starkey to trigger any in camera review as to his personnel records and Bailey joining in was also insufficient to trigger any in camera review. Following an in camera review of Haynes's personnel records, the court disclosed the name, address, and phone number of a person who made an excessive force allegation regarding Haynes. No other information was released.

2. Good Cause

Defendant argues the trial court erred by denying his Pitchess motion as to personnel records related to complaints of misconduct, false testimony, false police reports, untruthfulness, and false arrest against Haynes. Defendant similarly argues the trial court abused its discretion in denying all of his requests for records regarding Bailey and Starkey without conducting an in camera review.

A party seeking disclosure of a police officer's personnel records must show "good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter involved in the pending litigation and stating upon reasonable belief that the governmental agency identified has the records or information from the records." (Evid. Code, § 1043, subd. (b)(3).)

The standard for measuring good cause is " 'relatively relaxed' " so that the trial court will review " 'all potentially relevant documents.' " (People v. Gaines (2009) 46 Cal.4th 172, 179.) To make such a showing, the "defendant need demonstrate only 'a logical link between the defense proposed and the pending charge' and describe with some specificity 'how the discovery being sought would support such a defense or how it would impeach the officer's version of events.' " (Id. at p. 182.) "Counsel's affidavit must also describe a factual scenario supporting the claimed officer misconduct." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1024.) The factual scenario provided by the defendant must be "plausible" in the sense the asserted officer misconduct "might or could have occurred." (Id. at p. 1026.) If good cause is shown, "the court must review the requested records in camera to determine what information, if any, should be disclosed." (Gaines, supra, at p. 179.) We review a trial court's ruling on a motion for discovery of peace officer personnel records for an abuse of discretion. (People v. Cruz (2008) 44 Cal.4th 636, 670.)

The proposed defenses set forth in the pertinent declaration included that the officers acted illegally when they sought to detain defendant and used unreasonable and excessive force to arrest him. An officer's use of excessive force is a defense to a charge of violating section 69. (See People v. Brown (2016) 245 Cal.App.4th 140, 154; People v. White, supra, 101 Cal.App.3d at p. 167.) Defendant notes, the pertinent declaration asserted, "I am informed and believe that while only Sgt. HAYNES and Officer BAILEY used excessive force, all three officers wrote voluminous reports to attempt to document this incident in a manner consistent with one another, falsifying the events of July 1, 2017[,] by misrepresenting the events so that the use of force would have seemed more reasonable." The declaration also disputed critical elements of the officers' reports, including the officers' assertions that defendant was not already on the ground when Iro was deployed. Defendant argues the information he sought was material to the pending litigation because complaints of fabrication of probable cause are discoverable when they would show the acts were done to cover up an officer's use of excessive force. (See People v. Gill (1997) 60 Cal.App.4th 743, 750 [defendant demonstrated good cause for prior complaints against officer of fabrication of probable cause and planting of evidence to cover up his use of excessive force].) The People contend the trial court did not abuse its discretion in denying the motion because, at the hearing, counsel for defendant conceded there was no good cause to review any personnel records for false police reports. We disagree. Counsel for defendant argued, "I think in a case where excessive force is at issue, more so than false reporting[,] that potentially a Court could look just solely at a police report and determine that there may be a cause for excessive force regarding a Pitchess [m]otion. And I think that's kind of where we are falling here in that I understand what the Court is saying regarding officers may have perceived something one way, the Defendant perceived it another way. There is not a dispute factually about what happened. But that can still amount to a use of excessive force. And that's what we have. We have a claim of excessive force by these officers against [defendant]." (Italics added.) Counsel was explaining that even under the trial court's view, a plausible factual scenario of excessive force had been set forth. Defense counsel's argument must be viewed in this context. Earlier, counsel explained that the declaration "set forth more than sufficient cause to warrant, at least at this point, an [i]n [c]amera review of the records as to issues pertaining to excessive force and falsifying or fabricating police reports in order to cover up for the use of excessive force." We decline, under these circumstances, to conclude counsel had abandoned requests for complaints related to the falsifying of police reports. We further conclude defendant established good cause to review records pertaining to false police reports in camera. Therefore, it was error for the court to fail to conduct this review.

The court also denied defendant's request for discovery related to complaints that Bailey used excessive force. In addition to the paragraphs cited by the trial court, the declaration stated, "I am informed and believe that Officer BAILEY chose to kick [defendant] in the forehead while Sgt. HAYNES was already attacking [defendant]." The People argue, "[u]nlike the allegations as to Sergeant Haynes, no plausible scenario of excessive force stemmed from the mere fact of Officer Bailey's kick." This act may not be viewed in isolation. Defendant's theory was that he was already on the ground when Iro was deployed unnecessarily, Haynes was attacking him, and Bailey chose to kick him in the head unnecessarily. Defendant established good cause to review records pertaining to complaints of excessive force as to Bailey in camera.

We conclude the trial court abused its discretion in denying defendant's Pitchess motion as to records pertaining to complaints of false police reports as to all the officers and complaints of excessive force as to Bailey without conducting an in camera review. We must therefore conditionally reverse the judgment and remand the case to the trial court to conduct an in camera review of these documents. (People v. Gaines, supra, 46 Cal.4th at p. 180.) If the review reveals no discoverable information, the trial court is directed to reinstate the original judgment and sentence. (Id. at p. 181.) If, however, there is discoverable information, the court must order disclosure and allow defendant the opportunity to demonstrate prejudice. (Ibid.) We reject the People's attempt to argue at this point that defendant will not demonstrate prejudice as to count one. We cannot say it is impossible that some discovery could exist that would aid defendant's claim that the officers used excessive force and then lied to support the use of force they did deploy. If defendant makes the requisite showing of prejudice at the appropriate time, the trial court shall order a new trial. (Ibid.)

3. Independent Review

As discussed, the trial court conducted an in camera review regarding Haynes's personnel records, after which it disclosed the name, address, and phone number of a person who made an excessive force allegation against him.

Defendant asks this court to conduct an independent review of the sealed records of this in camera proceeding. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228, 1232.) The People do not oppose the request.

If a defendant makes "a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion." (People v. Mooc, supra, 26 Cal.4th at p. 1226.) "The trial court 'shall examine the information in chambers' [citation] 'out of the presence and hearing of all persons except the person authorized [to possess the records] and such other persons [the custodian of records] is willing to have present' [citations]." (Ibid.; see Evid. Code, §§ 915, subd. (b), 1045, subd. (b).) Thus, "both Pitchess and the statutory scheme codifying Pitchess require the intervention of a neutral trial judge, who examines the personnel records in camera, away from the eyes of either party, and orders disclosed to the defendant only those records that are found both relevant and otherwise in compliance with statutory limitations." (People v. Mooc, supra, at p. 1227.)

We have reviewed the sealed transcript of the in camera proceeding in which the trial court questioned the custodian of records under oath regarding Haynes's personnel records. Based on our review, we conclude the trial court did not abuse its discretion in finding that no additional disclosable evidence responsive to defendant's request for records regarding excessive force complaints against Haynes existed.

III. DISPOSITION

The judgment is conditionally reversed. The cause is remanded to the trial court with directions to conduct an in camera review of records pertaining to complaints of false police reports as to all the officers and complaints of excessive force as to Bailey. If the trial court finds there is in fact discoverable evidence, it shall then determine whether defendant was prejudiced from the denial of discovery. If the court confirms the lack of discoverable evidence or finds that defendant was not prejudiced from the denial of discovery, the judgment shall be reinstated as of the date of its ruling to that effect. Otherwise, the trial court shall conduct further proceedings as are warranted.

/S/_________

RENNER, J.

We concur:

/S/_________

RAYE, P. J.

/S/_________

BUTZ, J.


Summaries of

People v. Lee

COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)
Nov 8, 2019
C086290 (Cal. Ct. App. Nov. 8, 2019)
Case details for

People v. Lee

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. TRAVIS CONNOR LEE, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Shasta)

Date published: Nov 8, 2019

Citations

C086290 (Cal. Ct. App. Nov. 8, 2019)