Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA092795, David Sotelo, Judge.
Joan Wolff, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
JACKSON, J.
INTRODUCTION
Defendant Randall Jeffrey Risher appeals from a judgment of conviction entered after a jury trial. The jury found defendant guilty of assault upon a peace officer (Pen. Code, § 245, subd. (c)) and resisting, obstructing or delaying a peace officer (§ 148, subd. (a)(1)). Defendant thereafter admitted that he had suffered a prior conviction of a serious or violent felony within the meaning of the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12), and the trial court found that defendant violated probation in Case Nos. BA272273, NA068063 and TA083654. The court sentenced defendant to eight years in state prison, plus concurrent sentences for the probation violations. We modify the judgment by striking DNA fees imposed by the court pursuant to Government Code section 76104.7, and we affirm the judgment as modified.
All further statutory references are to the Penal Code, unless otherwise identified.
FACTS
On September 11, 2007, at approximately 2:25 p.m., Los Angeles County Sheriff’s Deputy Robert De La Garza and his partner, Deputy Lee, were in their marked patrol car making a patrol check of the Compton train station. Deputy De La Garza observed defendant standing in the station’s entry/exit in a manner “which was blocking people from entering and exiting.” Over the past seven years, Deputy De La Garza had encountered defendant numerous times, approximately four or five times per week, and had on occasion cited him for violations of the law, including illegal peddling by asking people for their tickets so he could resell them, unlawfully blocking a passageway and riding the train without a ticket. At the station the previous night, Deputy De La Garza had told defendant that he was not supposed to be there, that he had been asked not to loiter or bother patrons entering or exiting the station, and that he had to stop doing so as there had been too many complaints about his conduct.
As Deputy De La Garza walked up to the station, he heard defendant ask exiting patrons for their tickets. Deputy De La Garza reminded defendant of what he had told him the previous night. Uttering profanity, defendant challenged the deputy as to what he was going to do about it. Deputy De La Garza then advised defendant that, since he was not going to comply, he was under arrest. The deputy put handcuffs on defendant.
Deputy Jason Ely arrived and observed defendant acting aggressively and yelling profanity and threats to kill Deputies De La Garza and Lee. Deputy De La Garza told defendant that he needed to calm down and be quiet so that the deputy could explain the situation. When Deputy De La Garza took hold of defendant, Deputy Ely took hold on the other side of defendant. The deputies walked toward the patrol car with defendant, who continued twisting and violently moving his body. Deputy Lee followed them.
At the patrol car, Deputy De La Garza opened the rear driver’s side door and told defendant to sit down in the car, while Deputy Ely went around and opened the rear passenger door. Yelling profanity, defendant kicked Deputy De La Garza high in the center of his chest, hard enough to “take the wind out of” him and leave a bruise. Deputy Ely pulled defendant back across the seat as defendant attempted to kick Deputy De La Garza again. Although he had been forced back a bit, Deputy De La Garza stepped forward and grabbed defendant’s leg, pushed it back in the car, and closed the door as Deputy Ely closed the other rear door. Defendant screamed and yelled, but the deputies made no further contact with him until a field supervisor arrived.
Deputy De La Garza later saw a doctor, who prescribed pain medication. The deputy had a bruised sternum and bruising around his upper abdomen. He experienced tenderness for three days but did not take time off work.
DISCUSSION
A. Sufficiency of the Evidence
The gravamen of defendant’s claims on appeal is that his warrantless arrest was not lawful and, therefore, the evidence was insufficient to support his conviction of a felony assault on an officer (§ 245, subd. (c)). Specifically, defendant contends that there was insufficient evidence to establish probable cause for the misdemeanor arrest. This contention is without merit.
In order to determine the sufficiency of the evidence, we examine the record to determine if, viewed in the light most favorable to the judgment, there is substantial evidence such that any reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Hatch (2000) 22 Cal.4th 260, 272.) We consider the entire record, including reasonable inferences drawn from it, and must determine that the evidence of each required element of the crime is substantial—i.e., reasonable, credible and of solid value. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) Determining the credibility of a witness and weighing the evidence, however, are within “the exclusive province” of the trier of fact. (Ibid.)
Conviction of assault upon a peace officer pursuant to section 245, subdivision (c), requires that, at the time of the assault, the peace officer was “engaged in the performance or discharge of his or her duties.” It is well established that “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 of the offense.” (In re Manuel G. (1997) 16 Cal.4th 805, 818.) Thus when such an offense is committed during a warrantless arrest, the arrest must be lawful, i.e., made with probable cause and not carried out by excessive force. (People v. White (1980) 101 Cal.App.3d 161, 167.) Defendant’s contention is that his arrest was unlawful, in that it was made without probable cause. We disagree.
Probable cause exists when the arresting officer reasonably believes that the person to be arrested has committed a crime. (People v. Hernandez (1988) 47 Cal.3d 315, 341; Cantrell v. Zolin (1994) 23 Cal.App.4th 128, 133.) Deputy De La Garza testified that he had previously cited defendant for violations of the law, including illegal peddling by asking people for their tickets so he could resell them and unlawfully blocking a passageway under section 640, subdivision (b)(9). He also had arrested defendant for blocking the passageway into and out of the train station and bothering patrons entering or exiting the station. When the deputy arrived at the train station, defendant was standing in the station’s entry/exit in a manner “which was blocking people from entering and exiting.” When he warned defendant again not to do so, defendant’s comments indicated an unwillingness to stop. Section 853.6, subdivision (i)(7), allows for a defendant arrested for a misdemeanor to be taken into custody if “[t]here was a reasonable likelihood that the offense or offenses would continue or resume....” Substantial evidence supports a finding that probable cause existed to arrest defendant.
Section 640, subdivision (b)(9)(A), provides that it is an infraction to be “[w]illfully blocking the free movement of another person in a [public transportation] system facility....” We also note that section 647c provides that “[e]very person who willfully and maliciously obstructs the free movement of any person on any street, sidewalk, or other public place or on or in any place open to the public is guilty of a misdemeanor.”
Defendant further contends that, in any event, his arrest was unlawful, in that the deputies failed to comply with requirements for warrantless misdemeanor arrests under sections 836.5 and 853.6, that is, cite-and-release procedures or creation of a written record of the reason for nonrelease. We disagree.
The lawfulness of a misdemeanor arrest is independent from whether it results in the defendant being taken into custody or simply cited and released. Section 836.5, subdivision (a), sets forth the criteria for a lawful warrantless misdemeanor arrest, which parallel the standard for probable cause established by case law: “A public officer... may arrest a person without a warrant whenever the officer... has reasonable cause to believe that the person to be arrested has committed a misdemeanor in the presence of the officer....” (See People v. Hernandez, supra, 47 Cal.3d at p. 341; Cantrell v. Zolin, supra, 23 Cal.App.4th at p. 133.) Release of the defendant after issuance of a notice to appear or, after taking the defendant into custody, filing a standardized form indicating reasons for nonrelease of the defendant are procedures to be completed after a misdemeanor arrest has occurred. (§§ 836.5, subd. (c), 853.6, subds. (a) & (i).)
In sum, there is substantial evidence that Deputy De La Garza was engaged in the lawful performance of his duties when defendant assaulted him. (People v. Ochoa, supra, 6 Cal.4th at p. 1206.) Accordingly, we conclude that there is sufficient evidence for a reasonable trier of fact to conclude that defendant was guilty of felony assault of a peace officer. (§ 245, subd. (c); People v. Hatch, supra, 22 Cal.4th at p. 272.)
B. Jury Instructions on Warrantless Arrest
Defendant also claims that the trial court erred, in that it failed to give jury instructions on the elements of the crime for which defendant was arrested and the cite-and-release requirements under section 836.5, which were necessary to determine whether the warrantless arrest was legal. We disagree.
The trial court gave CALCRIM No. 2670 regarding lawful performance of duties by a peace officer to explain the requirements for a legal arrest, including probable cause to make a warrantless misdemeanor arrest. The court also gave CALCRIM No. 900 regarding assault on a peace officer, CALCRIM No. 2652 regarding resisting an officer in the performance of his or her duty, and CALCRIM No. 2656 regarding resisting a peace officer, each of which instructs the jury to use CALCRIM No. 2670 to determine when an arrest is unlawful.
Defendant’s claim is that the jury was not instructed on the crimes which Deputy De La Garza indicated were the basis for the arrest—loitering in and blocking the only entrance and exit for the train station, thereby impeding the passage of and bothering patrons entering or exiting the station. We agree with the People that the reasoning by the court in People v. Lara (1994) 30 Cal.App.4th 658 applies in the instant case: “Given the officer’s testimony, the target offenses were obvious. Moreover, they require no specialized legal knowledge to comprehend but are simple crimes, whose elements are obvious and would be commonly and easily understood by those familiar with the English language. In short, we cannot see... how the failure to instruct on the target offenses prevented the jury from being able to determine the propriety of the... arrest.” (Id. at pp. 670-671.) Under the facts of the instant case, the instructions which defendant claims were erroneously omitted were not required in order for the jury to understand and determine the element at issue, whether the deputy was lawfully “engaged in the performance of his... duties” at the time of the assault. (§ 245, subd. (c).)
In any event, if there was error in omitting instructions on the target offenses, it was harmless beyond a reasonable doubt. (See People v. Lara, supra, 30 Cal.App.4th at p. 671 [applying the harmless error standard in Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705]].) Instructions as to the elements of the target offenses were not essential for the jury’s understanding and determination of the element of whether the deputy was lawfully engaged in the performance of his duty at the time defendant assaulted him. (Lara, supra, at p. 671; see also People v. Prettyman (1996) 14 Cal.4th 248, 266-274 [the trial court’s failure to identify and describe target crimes when instructing on the “natural and probable consequences” rule was error under California law, but it was harmless error under the standard in People v. Watson (1956) 46 Cal.2d 818, 836 in that it was “not reasonably probable that the trial’s outcome would have been different in the absence of the trial court’s instructional error”].) Given the abundance of evidence regarding the prior warning given defendant to cease engaging in the target offenses and the other circumstances of the arrest, we conclude that no rational juror could have found the deputy was not engaged in the performance of his duties, whether or not the juror was instructed on the elements of the target offenses. (Lara, supra, at p. 671; see People v. Cummings (1993) 4 Cal.4th 1233, 1313-1314.)
C. DNA Fees
The People agree with defendant that the trial court erred in imposing DNA fees (Gov. Code, § 76104.7) in each of the four cases for which the court imposed sentences, in contravention of retroactively effective amendments to section 1202.4 (restitution fines) and section 1202.45 (parole revocation restitution fines) enacted in October, 2007. In each of the four cases, the court also imposed a restitution fine (§ 1202.4), a parole revocation restitution fine (§1202.45), and a court security fee (§ 1465.8, subd. (a)(1)). The amendments provided that none of the assessments could serve as a basis for an additional assessment under Government Code section 76000 et.seq. Accordingly, the DNA fees are unauthorized and must be stricken.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
Lastly, defendant requests that we independently review his Pitchess motion. Defendant claims that the trial court erred, in that it denied the motion as to Deputy Ely, found no discoverable information as to Deputy De La Garza, and failed to make a written record of the documents reviewed, as required by law (see, e.g., People v. Gaines (2009) 46 Cal.4th 172, 180-181). Defendant contends that the court erred in not reviewing Deputy Ely’s records in camera. We disagree.
Defendant’s motion was based on his claim of self-defense. In defendant’s supporting declaration, he asserted that “the Deputies slammed [him] into the car backwards,” that “the Deputies are lying” about his making threats, and that “the Deputies told [him] that he was going to die and choked him.” Defendant further claimed that Deputy De La Garza “dragged” him “down to the police car with the assistance of Deputy Ely, who got there after he had been handcuffed.” Defendant claims review of Deputy Ely’s records could potentially have been useful in showing that defendant acted in self defense and in impeaching the deputies’ testimony.
Pursuant to the Pitchess decision, now codified in Evidence Code sections 1043 and 1045, if a defendant files a motion supported by declarations showing good cause for discovery of certain information in peace officer personnel records and its materiality to the pending criminal case, the trial court must conduct an in camera review of the records to determine the information from the records, if any, which should be disclosed to defendant. (People v. Samuels (2005) 36 Cal.4th 96, 109.) The supporting declaration must state a defense to the pending charges and establish a logical link between the defense, the pending charges, and the requested discovery as supporting the defense. (Garcia v. Superior Court (2007) 42 Cal.4th 63, 71.) We review a trial court’s Pitchess motion ruling for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) The ruling must be reversed only “if there [is] a reasonable probability that the outcome of the case” would have been more favorable to the defendant had the information been disclosed to the defendant. (People v. Hustead (1999) 74 Cal.App.4th 410, 422.)
Contrary to defendant’s claim, a written record of the documents reviewed by the trial court is included in the record on appeal in the form of the transcript of the in camera hearing on the Pitchess motion. The transcript was sufficient for compliance with applicable law requiring a written record of the documents reviewed by the trial court in response to a Pitchess motion. (People v. Mooc (2001) 26 Cal.4th 1216, 1229.) We have reviewed the transcript and are satisfied that the trial court did not abuse its discretion in finding no discoverable information in the documents reviewed from Deputy De La Garza’s personnel record. (Id. at p. 1232; People v. Hustead, supra, 74 Cal.App.4th at p. 422.)
Defendant is correct that the documents reviewed pertained only to Deputy De La Garza. We disagree with defendant’s contention that the court erred in not reviewing Deputy Ely’s records in camera. Defendant’s supporting declaration indicates that Deputy Ely’s involvement was very limited. In the declaration, defendant admits Deputy Ely did not arrive until defendant was already handcuffed and that Deputy Ely’s role was to assist Deputy De La Garza. The officer who had significant verbal and physical contact with defendant throughout the incident and was the target of defendant’s assault to which any claim of self defense would apply was Deputy De La Garza. We conclude that, under the facts of the instant case, the trial court did not abuse its discretion in denying the motion with respect to Deputy Ely and, thus, declining to conduct an in camera review of the deputy’s records. (People v. Samuels, supra, 36 Cal.4th at p. 109; Alford v. Superior Court, supra, 29 Cal.4th at p. 1039.)
DISPOSITION
The judgment is modified by striking the DNA fees. As modified, the judgment is affirmed. The clerk of the court is directed to prepare a corrected abstract of judgment and forward a copy to the Department of Corrections and Rehabilitation.
We concur: PERLUSS, P. J., ZELON, J.