Opinion
A130144
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ARTURO GARCIA TORRES, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Sonoma County
Super. Ct. No. SCR-583218)
Arturo Garcia Torres appeals from a judgment upon a jury verdict convicting him of transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)); fleeing from a peace officer in wanton disregard of the safety of others (Veh. Code, § 2800.2, subd. (a)); resisting or obstructing a peace officer (Pen. Code, § 148, subd. (a)(1)); and driving without a valid license (Veh. Code, § 12500, subd. (a)). He contends that the trial court abused its discretion in denying his Pitchess motion, and that the court erred in failing to give a unanimity instruction in connection with the section 148 offense. We conditionally reverse the judgment to permit the trial court to conduct an in camera review of the Pitchess documents requested by defendant.
Unless otherwise indicated, all further statutory references are to the Penal Code.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
I. FACTS
At approximately 6:40 p.m. on May 29, 2010, deputy sheriff Brandon Cutting was on routine patrol driving southbound on Wilson Street in the Railroad Square area of Santa Rosa. He saw defendant, a person with whom he was familiar, driving in the northbound direction on Wilson Street and decided to follow him. Cutting made a U-turn and observed defendant approach an intersection and fail to come to a complete stop at the stop sign. Cutting activated his emergency lighting to initiate a traffic stop. Defendant initially pulled his vehicle over and stopped in front of a restaurant. But after Cutting exited from his car and approached defendant's vehicle, defendant drove off. Cutting got back in his patrol car and pursued defendant. Defendant proceeded eastbound on Seventh Street and then turned onto a trail adjacent to the railroad tracks. Defendant was driving at 30-35 miles-per-hour in a 25 miles-per-hour zone. As they neared an intersection, Cutting saw what appeared to be a family walking on the sidewalk on the north side of the road about to approach the intersection. The adult of the family grabbed the children and ran back away from the intersection. If they had not run, Cutting opined that defendant would have hit them.
Cutting continued to pursue defendant, who drove toward Fifth Street. Defendant was approaching the end of Fifth Street which dead ends where a coffee shop is located near the railroad tracks. There were 10 to 15 people standing in the outside area of the coffee shop. As defendant neared the coffee shop, the people moved. Defendant drove onto the railroad tracks and suddenly came to a stop. Defendant exited from his vehicle and then leaned back into it to grab something before running away.
Cutting pursued defendant, yelling at him to stop and get on the ground. At some point, Cutting drew his baton. Cutting followed defendant into the parking lot of the coffee shop where defendant tripped and fell forward onto his chest and stomach in a "baseball style slide." Cutting ordered defendant to stay on the ground and put his hands behind his back. Defendant, however, rolled onto his back and got into a defensive position with his legs extended in the air. The defensive position allows an individual to pivot onto his or her left or right hip and to use his or her legs to deliver a kick strike. Cutting continued to order defendant to get on his stomach and get his hands behind his back, but defendant did not comply.
As Cutting got to the base of defendant's feet, defendant began kicking his feet in Cutting's direction, yelling " 'leave me alone.' " Defendant kicked at Cutting multiple times. In response, Cutting struck defendant with his baton several times in the left lower leg just below his knee. After the third strike, defendant rolled over and placed his hands behind his back. Cutting handcuffed defendant and walked toward his patrol car at which point Deputy James, who had responded to the scene, took custody of defendant. James pat searched defendant and found a bag of methamphetamine in his right pocket of his pants.
A criminalist tested the evidence and confirmed that it was methamphetamine weighing 4.75 grams.
The parties stipulated that defendant knew the substance was methamphetamine, a controlled substance, and that he did not have a valid driver's license.
In defense, defendant testified that he understood English a little but did not understand what Cutting was saying when defendant fell to the ground. He denied kicking Cutting.
II. DISCUSSION
A. Pitchess motion
Prior to trial, defendant made a Pitchess motion seeking to discover Cutting's personnel records including all disciplinary records. He argued that the records were essential for effective cross-examination and impeachment of Cutting. His counsel's declaration, submitted in support of the motion, averred that Cutting had previously used excessive force against defendant so he fled because he feared that Cutting would physically harm him. She also averred that Cutting lied in his report of the incident and that defendant did not offer any resistance to his arrest.
The People opposed the motion, asserting that defendant's conclusory allegations did not show good cause for disclosure because defendant did not present a specific factual scenario establishing a plausible factual foundation for any alleged misconduct. The People urged that defendant's motion did not provide any details of the alleged prior interactions with Cutting nor did it explain his actions in fleeing and refusing to yield to Cutting's attempted traffic stop.
The court denied the motion, finding that defendant had failed to establish good cause to require an in camera review of the records. In particular, the court found that defendant failed to explain his own actions in a manner that supported a defense.
"[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.]" (People v. Gaines (2009) 46 Cal.4th 172, 179.) "Th[e] two-part showing of good cause is a 'relatively low threshold for discovery.' [Citation.]" {Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019.) The Warrick court explained that the affidavit "must propose a defense or defenses to the pending charges." (Id. at p. 1024.) The good cause showing "requires a defendant . . . to establish not only a logical link between the defense proposed and the pending charge, but also to articulate how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Id. at p. 1021.) The information which the defendant seeks must be described with some specificity to ensure that the request is "limited to instances of officer misconduct related to the misconduct asserted by the defendant." (Ibid.)
Moreover, the affidavit must "describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report." (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) However, the factual scenario must be a "plausible scenario of officer misconduct," a scenario that "might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges." (Id. at p. 1026.)
When the defendant establishes good cause for Pitchess discovery, he or she is entitled to the trial court's in-chambers review of the arresting officers' personnel records relating to the plausible scenario of officer misconduct. (Warrick, supra, 35 Cal.4th at p. 1027.) The purpose of the in-chambers review is to determine relevance under the provisions of Evidence Code section 1045. This review allows the court to issue orders protecting the officer or agency from "unnecessary annoyance, embarrassment or oppression." (Id., subd. (d).) These provisions strike a balance between the legitimate privacy interests of the officer and the defendant's right to a fair trial. (Warrick, supra, 35 Cal.4th at p. 1028.)
Here, counsel for defendant declared that defendant failed to stop after Cutting initiated a traffic stop of his vehicle because he feared Cutting would physically harm him as he had done in the past. Defendant also ran from Cutting after his car stopped on the railroad tracks due to his fear. When he fell, Cutting approached defendant with an extended baton, though defendant offered no resistance. He then struck defendant many times causing defendant to suffer physical injury. Counsel averred that Cutting exercised excessive force against defendant, fabricated the police report particularly portions asserting that defendant resisted arrest or "took [an] offensive ground position." Counsel also questioned Cutting's veracity. She averred that Cutting's disciplinary records would support the defense.
We conclude that the record adequately demonstrates a plausible scenario that might have occurred. Cutting testified that he drew his baton before approaching defendant who had fallen to the ground. Although he yelled, "Sheriff's department, stop. Get on the ground. Stop, get on the ground," defendant testified that he understood English only "a little" and did not understand what Cutting was saying. Cutting could not recall if he extended his baton immediately or as he was running. He testified that when he saw defendant fall, he was about 25 feet away and he continued to yell at him and order him to stay on the ground and put his hands behind his back. When he reached defendant, Cutting testified that defendant had rolled onto his back and taken a defensive position with his legs extended in the air. At the same time, he acknowledged that he approached defendant with an extended baton and continued with instructions to defendant to roll onto his stomach and put his hands behind his back. Defendant kicked out his feet in Cutting's direction but did not strike Cutting. Cutting testified that as defendant was about to kick out again, he struck him with his baton several times on his lower left leg just below his knee. Given the factual scenario, it is conceivable that defendant failed to follow Cutting's instructions because he did not understand them, and that Cutting exercised excessive force to obtain defendant's compliance with his instructions. Thus, under the plausible scenario standard of Warrick, defendant has set forth a sufficient showing to merit an in camera inspection of Cutting's personnel file. (Cf. People v. Sanderson (2010) 181 Cal.App.4th 1334, 1336, 1340-1341[in a criminal threats case, defendant did not demonstrate good cause for Pitchess discovery when he merely denied making the threats but did not present an alternative version of the facts].)
Cutting's police report states that he struck defendant four times with the baton.
Pitchess error, however, is not reversible per se. "Rather, the failure to disclose relevant information in confidential personnel files, like other discovery errors, is reversible only if there is a reasonable probability of a different result had the information been disclosed." (People v. Gaines, supra, 46 Cal.4th at p. 176.) As defendant acknowledges, the remedy for Pitchess error is a conditional remand. (People v. Gaines, supra, 46 Cal.4th at p. 180.) On remand, the trial court shall review the requested documents in chambers and issue a discovery order if warranted. (Id. at pp. 180-181.) Upon review, the trial court may determine that the requested documents contain no relevant information. In that circumstance, it may reinstate the judgment. If the trial court determines that relevant information exists and should be disclosed, it must order disclosure, allow the defendant an opportunity to show prejudice and direct a new trial if there is a reasonable probability that the outcome would have been different had the information been disclosed. (Id. at p. 181.)
B. Unanimity instruction
Defendant contends that the trial court erred in failing to give a unanimity instruction when the prosecutor changed his theory regarding which of defendant's acts constituted resisting arrest (§ 148, subd. (a)(1)), the lesser included offense of resisting an officer in the performance of his duties by use of force or violence (§ 69).
During closing argument, the prosecutor argued that the section 69 offense was based on defendant's resisting arrest by taking an offensive position on the ground and kicking at Cutting. The prosecutor, however, also argued that if the section 69 offense was not proven, defendant could be found guilty of the lesser included offense of section 148 based on his running from the car, failing to stop on Cutting's order, and kicking him once defendant was on the ground. In a conference outside the presence of the jury, the prosecutor explained that defendant's "fleeing on foot results in the interaction which becomes the 69, but the course of conduct; that is, Mr. Torres resisting arrest by running and then physically by kicking is in my mind a course of conduct . . . . In my mind the underlying factual scenario of the 20 second chase up to the portion where there's a physical interaction is still the same course of conduct by Mr. Torres which would constitute a lesser included offense." The court found that the prosecutor's election to focus on the subsequent conduct after defendant left his vehicle to support the section 69 and lesser included section 148 offense showed a continuing course of conduct that did not require a unanimity instruction. The court concluded "that a unanimity instruction would [not] be required since we're talking about a period of time that may be hard to say, 60 seconds in length maximum and all occur within time frames indicated as a continuous course of conduct."
Section 69 "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.) The information here charged both types of offenses, but the jury was instructed only on the first type of offense in the language of former CALCRIM No. 2651. Pursuant to defendant's request, the jury was also instructed on section 148 as the lesser included offense of resisting a peace officer in the performance of his duties.
While the parties urged the court to instruct on the second type of section 69 offense as it did not require a specific intent to deter or prevent an officer from performing a duty and was consistent with the People's theory, the court "out of an abundance of caution" opted to instruct in the language of former CALCRIM No. 2651. The jury was also instructed in the language of CALCRIM No. 252 on the union of act and intent and that the section 69 offense required a specific intent while section 148, subdivision (a)(1) required general criminal intent.
That instruction provides, in relevant part: "The defendant is charged in Count III with trying to prevent or deter an executive officer from performing that officer's duty in violation of Penal Code [section] 69. [¶] To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer's lawful duty; [¶] AND [¶] 2. When the defendant acted, he intended to prevent or deter the executive officer from performing the officer's lawful duty. Someone commits an act willfully when he or she does it willingly or on purpose . . . ."
In People v. Lacefield (2007) 157 Cal.App.4th 249, 256-257, the court explained that section 148 is a lesser included offense of the second type of offense in section 69. "The temporal element is identical, as both require the officer's present performance of duty. Both require resistance, although section 148[, subdivision] (a)(1) also refers to delay or obstruction. The section 69 offense specifies unlawful resistance with 'force or violence,' while section 148[, subdivision] (a)(1) can be violated without force, since it punishes a person who 'willfully resist[ed], delay[ed], or obstruct[ed].' The section 69 offense requires that the defendant 'knew' the officer was performing duty, while section 148[, subdivision] (a)(1) requires that the defendant 'knew or reasonably should have known' of the officer's role. Comparing the elements it appears to be impossible to violate the second type of offense in section 69 without also violating section 148[, subdivision] (a)(1), which means that section 148[, subdivision] (a)(1) is a lesser included offense of the second type of offense in section 69 . . . ." (Id. at p. 257.)
Since the jury found that the section 148, subdivision (a)(1) offense was proven and the prosecutor's theory for that offense was defendant's acts in running after he abandoned his car and then falling and kicking at Cutting, we conclude that no unanimity instruction was required. As the trial court found, these acts occurred in a matter of seconds and involved a distance of from 25 to 75 feet. It was clearly a continuous course of conduct. It is well settled that "when the prosecution proves more unlawful acts than were charged, no unanimity instruction is required where the acts proved constitute a continuous course of conduct." (People v. Napoles (2002) 104 Cal.App.4th 108, 115.)
We note that it appears that the court erred in failing to give former CALCRIM No. 2652 [unlawful use of force or violence to resist an executive officer] as the parties agreed that the People were pursuing the theory that defendant violated section 69 by his post-driving conduct—that is defendant's kicking of Cutting after he ran from his abandoned vehicle. Defendant, however, was not prejudiced by the instructional error, as the court's instructions set forth the instructions applicable to both offenses and the specific intent requirement of section 69 and the general criminal intent required to commit the section 148, subdivision (a)(1) offense.
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III. DISPOSITION
The judgment is conditionally reversed. We remand the matter to the trial court to permit it to review Cutting's personnel records in chambers and to issue a discovery order, if warranted. After reviewing the documents, the court may determine that the requested personnel records contain no relevant information. In that circumstance, the court is directed to reinstate the judgment. If, however, the court determines that relevant information exists and should be disclosed, the court must order disclosure and allow defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability that the outcome would have been different had the information been disclosed.
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RIVERA, J.
We concur:
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REARDON, Acting P. J.
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SEPULVEDA, J.