People v. Guzman CA2/6 ( 2021 )

Filed 3/23/21 P. v. Guzman CA2/6
See dissenting opinion
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B297704
(Super. Ct. No. 18CR08571)
Plaintiff and Respondent, (Santa Barbara County)
v.
OCTAVIO LOPEZ GUZMAN,
SR.,
Defendant and Appellant.
Octavio Lopez Guzman, Sr., appeals from the judgment
entered after a jury convicted him of resisting an executive officer
(Pen. Code,1 § 69). In a bifurcated proceeding, the trial court
found true an allegation that appellant had suffered a prior
strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
Appellant was sentenced to four years in state prison.
Unless otherwise stated, all statutory references are to
1
the Penal Code.
Appellant raises claims of insufficient evidence and
instructional error. He also asks us to review the sealed records
of the in camera proceedings on his Pitchess2 motion.
We reject appellant’s claim that the evidence is insufficient
to support his conviction. We agree, however, with his assertion
that the court violated its sua sponte duty to instruct the jury on
the lesser included offense of simple assault (§ 240). We also
agree with appellant that the error is prejudicial. Accordingly,
we conditionally reverse the judgment. (See People v. Hayes
(2006) 142 Cal.App.4th 175, 184 (Hayes); People v. Brown (2016)
245 Cal.App.4th 140, 166 (Brown).)3
STATEMENT OF FACTS
On the afternoon of September 3, 2018, Santa Maria Police
Officer Ruben Peinado was on patrol when he observed appellant
riding a bicycle on the sidewalk, in violation of Santa Maria
Municipal Code sections 7-10.08 and 7-10.18, and Vehicle Code
sections 21200 and 21663. Officer Peinado activated his
overhead lights, got out of his vehicle, and approached appellant.
The officer told appellant that he had stopped him for riding his
bicycle on the sidewalk. Appellant replied, “‘That’s bullshit man.
2 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
3 In light of our conclusion, we need not address appellant’s
claims (1) that the matter must be remanded for a hearing on his
ability to pay the assessments and fines imposed against him, as
contemplated in People v. Dueñas (2019) 30 Cal.App.5th 1157,
and (2) that the abstract of judgment must be corrected to
accurately reflect his sentence. In the event of a possible retrial
on the section 69 charge, we shall address appellant’s remaining
claims.
2
What the fuck kind of shit is that?’” Officer Peinado asked
appellant if he was on probation or parole, and appellant replied
that he was on probation.
Officer Peinado tapped appellant in the small of the back
and said, “‘Hands back here.’’’ The officer did so because
appellant was agitated, the officer could not see both of
appellant’s hands, and appellant appeared to be looking around
for an escape route. Instead of complying with the officer’s order,
appellant “threw his hands up in the air.” Officer Peinado said,
“‘Hey, don’t put your hands up. Don’t be raising your hands.’”
The officer grabbed appellant’s left wrist,4 and appellant put his
right hand inside his right pants pocket. Officer Peinado told
appellant not to reach for his pocket and feared that he was
trying to retrieve a weapon. Appellant “continued to keep
reaching for his pocket while at the same time pulling away and
stepping away from his bicycle and away from [Officer Peinado].”
The officer wrapped his arms around appellant and “took him to
the ground.” Immediately after hitting the ground, Officer
Peinado saw a syringe and a pocket knife on the ground next to
appellant.
Appellant “took a swing at [Officer Peinado] with a closed
fist, and . . . [the officer] threw punches back.” Appellant was
“flail[ing] his legs and his arms.” Officer Peinado “felt pressure
4 On cross-examination, defense counsel asked Officer
Peinado if he remembered testifying at a prior hearing (on
appellant’s motion to dismiss under section 1538.5) that he
grabbed appellant’s wrist and placed it behind his back before
appellant threw his hands in the air. After refreshing his
recollection with a portion of the reporter’s transcript of the prior
hearing, Officer Peinado reiterated that he did not grab
appellant’s wrist until after appellant threw his arms up.
3
and tugging on the left side of [his] duty belt” where his firearm
was holstered. To better control appellant, Officer Peinado
turned him onto his stomach and “pinned [him] to the ground.”
Appellant bit Officer Peinado’s right hand and the officer “began
striking [appellant] again.” Appellant “roll[ed] . . . onto his back
and continu[ed] fighting and swinging, [with] closed fists.” The
officer “then switched from punches, because they were
ineffective, to elbows.”
Officer Peinado “threw about three elbows, [but appellant]
continued to resist.” The “elbow strikes” were to appellant’s
head. Other officers arrived on the scene and handcuffed
appellant. Officer Peinado suffered “a bite wound to [his] right
hand,” cuts and scrapes to his hands, and scrapes to both knees.
The incident was recorded by the dashboard video camera
(dash cam) in Officer Peinado’s patrol vehicle. The video footage
was admitted into evidence and shown to the jury, and was also
provided to the jury to review during its deliberations.5
The video shows appellant slowly riding a bicycle on an
empty sidewalk bordered by an empty street on one side and an
empty park on the other. No pedestrians are present. It is a
bright, sunny day. Appellant is wearing a tank top and knee-
length shorts. He stops when the patrol vehicle pulls up near
him. Officer Peinado gets out of the vehicle and says, “You’re
riding on the sidewalk.” The officer approaches appellant and
5The initial physical contact between Peinado and
appellant occurred very rapidly, within a matter of a few seconds.
We stopped the video at various points so we were able to view it
frame by frame. The jury could have done the same when it
watched the video during its deliberations.
4
asks whether he is on probation or parole. Appellant replies that
he is on probation. Officer Peinado orders appellant to put his
“hands back here,” apparently indicating that appellant should
put his hands behind his back. (At this point Officer Peinado is
standing with his back toward the camera, and his body is
blocking the dash cam’s view of appellant.) Appellant protests:
“Why? What did I do? What did I fucking do?” Officer Peinado
responds, “You’re riding on the sidewalk.” Appellant throws both
arms up in the air above his head, quickly brings both arms back
down, and says, “Bullshit, man! What the fucking shit is that?”
With his left hand, Officer Peinado grabs appellant’s left wrist.
Appellant starts to walk away and puts his right hand inside his
right pants pocket. Officer Peinado says, “Hey, don’t be reaching
for that!” With his right hand, the officer grabs appellant’s right
upper arm. Appellant removes something from his right pants
pocket and brings his right hand up to his mouth.6 Officer
Peinado, who apparently cannot see what appellant is doing with
his right hand because he is standing behind him, puts both his
arms around appellant and takes him to the ground.
As appellant is lying on his back with Officer Peinado on
top of him, he flails his legs and takes a swing at the officer with
his right hand. Officer Peinado punches appellant several times
while appellant is wildly moving his arms. Appellant reaches for
Officer Peinado’s head and makes contact with his head. The
camera’s view of appellant is then blocked by Officer Peinado’s
patrol vehicle. Appellant yells, “Hey, you shit, get off me!”
Appellant and Officer Peinado continue to struggle on the ground
6 From what is shown on the video, it is reasonable to infer
that appellant removed contraband from his pants pocket and
tried to conceal it by putting it inside his mouth.
5
until two other officers arrive and assist in handcuffing
appellant.
A second video was recorded on the dash cam in one of the
patrol vehicles that arrived in response to Officer Peinado’s call
for assistance. The video shows Officer Peinado and appellant on
the ground fighting each other.
Appellant did not testify and did not call any witnesses.
DISCUSSION
Sufficiency of the Evidence
Appellant contends the evidence is insufficient to support
his conviction under section 69. We disagree.
In reviewing claims of insufficient evidence, we must
determine “‘“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.” [Citation.] “[T]he court must review the whole record in
the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence
which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt.” [Citation.] We “‘presume in support of the
judgment the existence of every fact the trier could reasonably
deduce from the evidence.’”’” (People v. Osband (1996) 13 Cal.4th
622, 690, brackets in original.)
If “‘“‘“the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a
contrary finding does not warrant a reversal of the judgment.”’”’”
(People v. Rodriguez (1999) 20 Cal.4th 1, 11.) A jury is best able
to evaluate inconsistencies in testimony, in order to determine
6
which facts have been shown to be true. (See People v. Barnes
(1986) 42 Cal.3d 284, 306.) A single witness’s testimony may be
sufficient to support a conviction unless it must be rejected
because the events described were impossible or inherently
improbable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) A
defendant may not reargue the evidence on appeal, and we do not
reassess witness credibility. (People v. Thompson (2010) 49
Cal.4th 79, 124-125.)
Section 69 provides that it is a crime to “knowingly resist[],
by the use of force or violence, [an executive] officer, in the
performance of his or her duty.” The statute “requires that the
officer was acting lawfully at the time of the offense.” (People v.
Smith (2013) 57 Cal.4th 232, 241 (Smith).) “An officer using
excessive force is not acting lawfully.” (People v. Sibrian (2016) 3
Cal.App.5th 127, 133.) “The reasonableness of a particular use of
force is judged from the perspective of a reasonable officer on the
scene, not by the 20/20 vision of hindsight. The inquiry is an
objective one: Was the officer's action objectively reasonable in
light of the facts and circumstances confronting him, without
regard to his underlying intent or motivation?” (In re Joseph F.
(2000) 85 Cal.App.4th 975, 989.) In making this determination,
“the jury’s task not only permitted but required it to apply its
own independent sense of reasonableness, using whatever
community norms jury members might bring to the issue.”
(Brown, supra, 245 Cal.App.4th at p. 167.)
The evidence, viewed in the light most favorable to the
judgment, is sufficient to support appellant’s conviction under
section 69. Officer Peinado had observed appellant commit a
traffic infraction, so he had the right to stop and detain him for
an investigation. (People v. Miranda (1993) 17 Cal.App.4th 917,
7
926.) Officer Peinado testified that he ordered appellant to place
his hands behind his back because appellant was agitated, the
officer could not see both of appellant’s hands, appellant said he
was on probation, and appellant was “look[ing] into another area
as if he’s looking for a place to run.” Appellant’s back was to the
officer and he was standing over his bicycle in a position where
he could easily ride away. In light of this evidence, the jury could
reasonably find that Officer Peinado’s brief placement of his hand
on appellant’s back, combined with the command that appellant
place his hands there, did not amount to an unreasonable or
excessive use of force.
The jury could also find that Officer Peinado used
reasonable force when he grabbed appellant’s left wrist. Officer
Peinado testified that he took this action after appellant, while
cursing at the officer, rapidly raised both of his hands in the the
air and immediately brought them back down. In light of this
evidence, the jury could find that Officer Peinado had legitimate
safety concerns such that it was reasonable for him to secure
appellant’s hands. Contrary to appellant’s claim, the dash cam
footage from Officer Peinado’s vehicle does not actually show the
officer grabbing appellant’s hand before he threw it up in the air.
During that part of the encounter, the officer’s back is to the dash
cam and his hands cannot be seen. Although the defense
asserted that Officer Peinado grabbed appellant’s hand
immediately notwithstanding his claim to the contrary, it was the
sole province of the jury to make this credibility determination.
(People v. Thompson, supra, 49 Cal.4th at pp. 124-125.)
Moreover, the jury could reasonably find that when
appellant started to walk away and put his right hand in his
pants pocket, Officer Peinado had grounds to reasonably fear that
8
appellant was attempting to retrieve a weapon and escape from
the detention. (See People v. Parrott (2017) 10 Cal.App.5th 485,
494 [“asking appellant to keep his hands out of his pockets is a
normal, expected response to an officer’s concern for his or her
own personal safety during the encounter”].) A reasonable trier
of fact could find that Officer Peinado used reasonable force to
constrain appellant by taking him to the ground. Since appellant
struggled with the officer on the ground, bit his hand, and
apparently tried to remove the gun from the officer’s holster, a
reasonable trier of fact could also find that Officer Peinado used
reasonable force to subdue appellant and protect himself until
other officers arrived. We also reject appellant’s claim that, as a
matter law, his “response [to Officer Peinado’s use of force] was in
self-defense and reasonable.”
In his briefs, appellant refers us to comments made by the
judge who denied his motion to dismiss under section 1538.5.
After reviewing the dash cam footage, the judge observed that at
the outset of the encounter appellant did not exhibit aggressive
behavior and there were “[n]o furtive movements” and “no
threats of any violence [or] anything.” The judge stated: “[W]ould
a reasonable person . . . believe that the officer had to put hands
on [appellant] to detain him? . . . I just don’t see that [as]
justified.”
The judge went on to state: “I don’t see the nexus between
what the officer did and an unlawful search. What I see is a
defense possibly that the officer used excessive force in detaining
which is a defense for [a charge under section] 148 and maybe a
[charge under section] 69.” The judge also declined appellant’s
request for a finding “that the grabbing of [appellant] was an
unlawful contact.” The court reasoned that “[t]he record of what
9
I have said and my observations and how I interpret it is how I
interpret it. Could the officer interpret it differently? Did he see
things I didn’t see? Was he in a situation I wasn’t in? Sure. So
I’m not going to make any factual determinations.” The judge
thus recognized that the reasonableness of Officer Peinado’s use
of force was ultimately an issue of fact to be decided by the jury
based on the evidence presented at trial.
Moreover, the magistrate who held appellant to answer on
the section 69 charge at the conclusion of the preliminary hearing
observed: “One wonders if there might have been better ways to
approach it, but the agitation of the defendant is plain upon the
approach of the officer. And his actions all seem to me to be
within the lawful scope of his duties, and the resistance was
immediate and forceful.” (Italics added.)
These conflicting views merely demonstrate that the
evidence is susceptible to differing interpretations. It does not
undermine the conclusion that appellant’s conviction is supported
by substantial evidence. (People v. Rodriguez, supra, 20 Cal.4th
at p. 11.)
Failure To Instruct On Lesser Included Offense Of
Simple Assault (§ 240)
The information charged appellant with “knowingly
resist[ing] by the use of force and violence” Officer Peinado’s
performance of his duties. Based on the information (accusatory
pleading), the People concede that simple assault, which is
defined as “an unlawful attempt, coupled with a present ability to
commit a violent injury on the person of another” (§ 240), was a
lesser offense necessarily included within the charged offense of
violating section 69. (See Brown, supra, 245 Cal.App.4th at
p. 153 [because accusatory pleading charged defendant with
10
violating section 69 by “knowingly resisting the officers with force
and violence,” simple assault was lesser included offense].)7
Appellant argues that the trial court committed prejudicial error
by failing to instruct the jury sua sponte on simple assault. We
agree.
“‘“California law has long provided that even absent a
request, and over any party’s objection, a trial court must
instruct a criminal jury on any lesser offense ‘necessarily
included’ in the charged offense, if there is substantial evidence
that only the lesser crime was committed. This venerable
instructional rule ensures that the jury may consider all
supportable crimes necessarily included within the charge itself,
thus encouraging the most accurate verdict permitted by the
pleadings and the evidence.” [Citation.] “[T]he rule prevents
either party, whether by design or inadvertence, from forcing an
all-or-nothing choice between conviction of the stated offense on
the one hand, or complete acquittal on the other. Hence, the rule
encourages a verdict, within the charge chosen by the
prosecution, that is neither ‘harsher [n]or more lenient than the
evidence merits.’ [Citations.]” [Citation.] Thus, “a trial court
7 See People v. Reed (2006) 38 Cal.4th 1224, 1227-1228:
“We have applied two tests in determining whether an uncharged
offense is necessarily included within a charged offense: the
‘elements’ test and the ‘accusatory pleading’ test. Under the
elements test, if the statutory elements of the greater offense
include all of the statutory elements of the lesser offense, the
latter is necessarily included in the former. Under the accusatory
pleading test, if the facts actually alleged in the accusatory
pleading include all of the elements of the lesser offense, the
latter is necessarily included in the former.”
11
errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence.
On the other hand, the court is not obliged to instruct on theories
that have no such evidentiary support.”’ [Citation.]” (Brown,
supra, 245 Cal.App.4th at p. 152.) “‘“‘We apply the independent
or de novo standard of review to the failure by the trial court to
instruct on an assertedly lesser included offense. [Citation.]’”
[Citation.]’ [Citation.]” (Ibid.)
Upon our independent review, we conclude that substantial
evidence supported an instruction on the lesser included offense
of simple assault. The primary disputed issue in this case was
whether Officer Peinado used unreasonable or excessive force
during the encounter such that he was not acting within the
lawful scope of his official duties. Although we have concluded
that the jury could reasonably find the officer did not use
unreasonable or excessive force, this is one of those cases in
which “‘“the circumstances might also reasonably be reconciled
with a contrary finding . . . .”’” (People v. Rodriguez, supra, 20
Cal.4th at p. 11.) The jury could have rejected Officer Peinado’s
proffered explanations for his behavior. The officer’s actions and
purported observations, as reflected in his testimony and
depicted on the dash cam footage, are susceptible to differing
interpretations. For example, the jury could have rejected as
incredible Officer Peinado’s assertion that he did not grab
appellant’s left hand until after he threw it up into the air;
indeed, the judge who adjudicated appellant’s suppression motion
rejected that assertion based on the officer’s testimony at the
suppression hearing and a review of the dash cam footage.
The jury also could have found that Officer Peinado
overreacted when he wrapped his arms around appellant’s waist
12
and threw him to the ground, and that the officer subsequently
used unreasonable or excessive force when he repeatedly hit
appellant with his fists and elbows. Alternatively, the jury could
have found that Officer Peinado used unreasonable or excessive
force at the outset of the encounter—either by immediately
grabbing appellant’s left hand, or by tapping him on the back and
ordering him to place both of his hands there—and that this
action was the catalyst for everything that followed, such that the
officer could not be said to have been lawfully acting within the
scope of his official duties. In other words, “the jury could . . .
have concluded that [appellant] used excessive force or violence to
resist [Officer Peinado] only in response to the officer[’s]
unreasonable [use of] force. Under that scenario, [appellant]
could have been found not guilty of the section 69 violation, but
still guilt of the lesser crime of assault.” (Brown, supra, 245
Cal.App.4th at p. 154.)
We also conclude that the error in failing to instruct on
simple assault was prejudicial. “‘“[T]he failure to instruct sua
sponte on a lesser included offense in a noncapital case is, at
most, an error of California law alone, and is thus subject only to
state standards of reversibility.” [Citation.] Under the state
standard, “such misdirection of the jury is not subject to reversal
unless an examination of the entire record establishes a
reasonable probability that the error affected the outcome.”
[Citations.] “The Supreme Court has emphasized ‘that a
“probability” in this context does not mean more likely than not,
but merely a reasonable chance, more than an abstract
possibility. [Citations.]’ [Citation.]”’ [Citation.]” (Brown, supra,
245 Cal.App.4th at p. 155.)
13
We conclude there is a reasonable probability that the error
affected the outcome of this case. “The use of excessive force was
a primary defense theory at trial and there was substantial
evidence to support it. But the instructional error precluded the
jury from finding that [Officer Peinado] used excessive force,
while convicting [appellant] of assault . . . whether he intended to
cause injury or not. A ‘jury without an option to convict a
defendant of a lesser included offense might be tempted to convict
the defendant of an offense greater than that established by the
evidence instead of rendering an acquittal.’ [Citation.]” (Brown,
supra, 245 Cal.App.4th at pp. 154-155.)
The People contend that any error in failing to instruct on
simple assault was harmless because “the jury was fully
instructed that an officer is not lawfully performing his or her
duties if he or she is using unreasonable or excessive force.
[Citation.] Thus, in finding appellant guilty of violating section
69, the jury implicitly rejected appellant’s defense that Officer
Peinado used unreasonable or excessive force.” In assessing
prejudice in this context, however, “‘it does not matter that the
jury chose to convict the defendant of the greater offense over
acquittal or that the defendant was convicted of the greater
offense on sufficient evidence.’ [Citation.] To hold otherwise
would undermine the very purpose of the sua sponte rule.
[Citation.]” (Brown, supra, 245 Cal.App.4th at p. 155; see also
Hayes, supra, 142 Cal.App.4th at p. 182, citations and internal
quotation marks omitted [recognizing that the failure to instruct
on a lesser included offense may be deemed harmless when the
factual questions posed by the omitted instructions were
necessarily resolved against the defendant “in another context”].)
14
The error in this case particularly illustrates this point. As
we have noted, appellant’s primary defense to the section 69
charge was that Officer Peinado used unreasonable or excessive
force and thus was not acting within the scope of his official
duties. Appellant also asserted that his use of force in response
to the officer’s actions was reasonable. On that issue, the jury
was instructed pursuant to CALCRIM No. 2670 that “[i]f a peace
officer uses unreasonable or excessive force while detaining or
attempting to detain a person, that person may lawfully use
reasonable force to defend himself or herself. [¶] A person being
arrested uses reasonable force when he or she: (1) 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 (2) uses no more force than
an reasonable person in the same situation would believe is
necessary for his or her protection.”
Although these instructions made clear that appellant had
the right to use reasonable force in response to unreasonable or
excessive force, it is also clear by implication that appellant could
not himself use unreasonable or excessive force. The
instructions, however, did not provide any guidance on how the
jury should proceed if it found that Officer Peinado had used
unreasonable or excessive force (and thus was not acting within
his official duties), but that appellant also responded with
unreasonable or excessive force. Although the instructions
further stated that appellant could not be found guilty of
violating section 69 if Officer Peinado had used excessive or
unreasonable force, appellant was plainly guilty of something if
he also responded with the use of such force. But the jury was
given the option of convicting appellant of only one crime—
15
resisting an executive officer in violation of section 69. Because
the jury was not given the option of convicting appellant of a
lesser offense, it may have been “‘tempted to convict [him] of an
offense greater than that established by the evidence instead of
rendering an acquittal.’ [Citation.]” (Brown, supra, 245
Cal.App.4th at p. 155.)
Because it is reasonably probable that the error in failing to
instruct on the lesser included offense of simple assault affected
the outcome of the case, appellant’s conviction under section 69
must be reversed. “‘When a greater offense must be reversed, but
a lesser included offense could be affirmed, we give the prosecutor
the option of retrying the greater offense, or accepting a reduction
to the lesser offense.’ [Citations.] On remand we will provide the
prosecution with the option of retrying the section 69 charge
along with a charge of simple assault.” (Brown, supra, 245
Cal.App.4th at p. 156.)
Failure To Instruct On Lesser Included Offense Of
Willfully Resisting A Peace Officer (§ 148, subd. (a)(1))
Section 148, subdivision (a)(1) (section 148(a)(1)) makes it a
crime to “willfully resist[], delay[], or obstruct[] any . . . peace
officer . . . in the discharge or attempt to discharge any duty of
his or her office.” (Ibid.) The People concede that, based on the
information, a violation of section 148(a)(1) was a lesser offense
necessarily included within the charged offense of violating
section 69. (Smith, supra, 57 Cal.4th at p. 241 [“A person who
violates section 69 . . . by ‘knowingly resist[ing], by the use of
force or violence, such officer, in the performance of his duty’ . . .
also necessarily violates section 148(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’”].) The difference
16
between the two offenses is that a violation of section 69 requires
the use of force or violence, while a violation of section 148(a)(1)
does not.
Appellant claims that the trial court erred in not
instructing the jury sua sponte on a violation of section 148(a)(1).
“[W]e conclude the failure to instruct with section 148,
subdivision (a)[(1)] here was not error because there was no
substantial evidence that would support a conviction of the lesser
offense.” (People v. Carrasco (2008) 163 Cal.App.4th 978, 985.)
“[I]f appellant resisted the officer[] at all, he did so forcefully,
thereby ensuring no reasonable jury could have concluded he
violated section 148, subdivision (a)(1) but not section 69.” (Ibid.)
CALCRIM No. 2670
The trial court gave CALCRIM No. 2670 on whether a
peace officer is lawfully performing his duties. Appellant
maintains that the trial court erroneously refused to give the
following bracketed portion of the standard instruction: “[Y]ou
may not find the defendant guilty of resisting arrest if the arrest
was unlawful, even if the defendant knew or reasonably should
have known that the officer was arresting him.”
The trial court did not err. Appellant was not charged with
resisting arrest. The lawfulness of his arrest was not in question.
Appellant contends that the trial court should have
substituted “detention” for “arrest” and given the omitted
instruction as so modified. The trial court considered this
modification but reasonably rejected it because the court had
previously found the detention lawful and appellant had
acquiesced in this finding. In his opening brief appellant states:
“Appellant conceded [in the trial court that] he was initially
lawfully detained. Use of excessive force at the time Officer
17
Peinado was effectuating the detention was appellant’s theory of
defense.” Moreover, at a pretrial section 1538.5 motion to
suppress evidence, the court ruled, “[T]here’s no doubt that he
was lawfully detained.”
Appellant asserts, “The trial court should have included
the requested language and clarified to the jury that an officer’s
use of excessive force in effectuating a lawful detention is
unlawful and they may not find the defendant guilty of resisting
in response to the excessive force.” But the jury in effect was so
instructed pursuant to CALCRIM No. 2670. The instruction as
given stated: “A peace officer is not lawfully performing his or
her duties if he or she is using unreasonable or excessive force in
his or her duties. . . . If a peace officer uses unreasonable or
excessive force while detaining or attempting to detain a person,
that person may lawfully use reasonable force to defend himself
or herself.” In view of this instruction, we reject appellant’s claim
that “[t]he trial court’s instructions misled the jury to understand
that an initial lawful detention remained lawful even if Officer
Peinado used excessive force.”
Appellant claims that the trial court erred in instructing on
when “[a] person being arrested uses reasonable force.” The court
should have substituted “detained” for “arrested.” But the use of
the word “arrested,” instead of “detained,” could not have affected
the verdict. The jury must have understood that the principle set
forth in the instruction also applied to detentions. Other parts of
CALCRIM No. 2670 as given used “arrest” and “detain”
interchangeably: “A peace officer may use reasonable force to
arrest or detain someone . . . .” “If a person knows . . . that a
peace officer is arresting or detaining him or her, the person must
not use force or any weapon to resist an officer’s use of reasonable
18
force.” (Italics added.) “We credit jurors with intelligence and
common sense [citation] and do not assume that these virtues
will abandon them when presented with a court's instructions.”
(People v. Sandoval (2020) 50 Cal.App.5th 357, 361.)
Jury Instruction on Graham Factors
Appellant maintains that the trial court erred in refusing
his request to instruct on factors to be considered in determining
whether a peace officer used excessive force. The factors, referred
to as “Graham factors,” derive from Graham v. Connor (1989) 490
U.S. 386 [104 L.Ed.2d 443] (Graham). There, the plaintiff
brought an action under section 1983 of Title 42 of the United
States Code (section 1983) “to recover damages for injuries
allegedly sustained when law enforcement officers used physical
force against him during the course of an investigatory stop.”
(Graham, at p. 388.) The plaintiff claimed that the officers had
used excessive force.
“Section 1983 provides a cause of action for ‘the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws’ of the United States.” (Wilder v. Virginia
Hospital Assn (1990) 496 U.S. 498, 508 [110 L.Ed.2d 455].) In
Graham the Court held, “Where . . . the excessive force claim
[under section 1983] arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly
characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right ‘to be secure in
their persons . . . against unreasonable . . . seizures’ of the
person.” (Graham, supra, 490 U.S. at p. 394.) The Court noted
that the “proper application” of the “‘test of reasonableness under
the Fourth Amendment . . .’ . . . requires careful attention to the
facts and circumstances of each particular case, including [1] the
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severity of the crime at issue, [2] whether the suspect poses an
immediate threat to the safety of the officers or others, and [3]
whether he is actively resisting arrest or attempting to evade
arrest by flight.” (Id. at p. 396.)
Appellant requested that the trial court give an instruction
incorporating the above three Graham factors.8 His counsel said
that the proposed instruction “comes right out of Graham [v.]
Connor.” In denying the request, the court said, “I’m inclined to
. . . leave this trial with the CALCRIM [instructions] the way that
I get [them].”
Appellant has not shown that the trial court prejudicially
erred in declining to give his proposed instruction. Appellant was
charged with a criminal violation of section 69. His claim of
excessive force did not invoke the protections of the Fourth
Amendment. Nothing in Graham requires the giving of a special
instruction incorporating the three Graham factors where, as
here, the jury in a criminal case is properly instructed pursuant
to CALCRIM No. 2670.
Moreover, the proposed instruction focused on just three
factors. Graham concluded that, in determining whether officers
used excessive force, the trier of fact must consider the totality of
the circumstances from the officer’s perspective: “[T]he question
is whether the officers’ actions are ‘objectively reasonable’ in light
of the facts and circumstances confronting them . . . .” (Graham,
8 The proposed instruction stated: “‘When evaluating
reasonable versus excessive force, you should consider factors
including, one, the severity of the crime at issue; two, whether
the suspect posed an immediate threat to the safety of the officers
or others; and [three], whether the suspect was actively resisting
arrest or attempting to evade arrest by flight.’”
20
supra, 490 U.S. at p. 397.) “The calculus of reasonableness must
embody allowance for the fact that police officers are often forced
to make split-second judgments—in circumstances that are tense,
uncertain, and rapidly evolving—about the amount of force that
is necessary in a particular situation.” (Id. at pp. 396-397.)
Accordingly, any error in failing to give the requested instruction
was harmless.
Pitchess
“[T]he Legislature has enacted procedures to implement
the decision of Pitchess v. Superior Court (1974) 11 Cal.3d 531 . . .
(Pitchess) that allow criminal defendants to seek discovery from
the court of potentially exculpatory information located in
otherwise confidential peace officer personnel records. If a party
bringing what is commonly called a Pitchess motion makes a
threshold showing, the court must review the records in camera
and disclose to that party any information they contain that is
material to the underlying case. (See Evid. Code, §§ 1043, 1045.)”
(People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 705.)
Appellant filed a Pitchess motion seeking discovery of the
following information: “Any evidence or complaints of: (1)
unnecessary or excessive force; (2) unlawful searches; (3)
unlawful arrests; (4) racial or identity profiling; and (5) any other
evidence or complaints of dishonesty or misconduct by . . . Officer
Ruben Peinado.”
Appellant also served a subpoena duces tecum requiring
the police department to produce a copy of “Peinado’s ‘Blue File’
or ‘Blue Team’ log.” Appellant explained that this file or log
contains “a list of all use of force incidents known within the
department.” It is maintained “for statistical and training
purposes.” “The Blue File log is not limited to incidents where
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force was deemed excessive . . . . It is not limited to incidents
where formal complaints were filed or where an internal
investigation was conducted and wrong-doing was found. . . . The
Blue File tracks all incidents when officers use force.”
The police department claimed that the Blue File “is an
extension of the officer’s personnel file” and that its discovery “is
a Pitchess issue.” The trial court agreed. It granted the police
department’s motion to quash the subpoena duces tecum because
the subpoena was “not the appropriate method to obtain the
documents.” But the court concluded that the Blue File is
“properly subject to a Pitchess motion,” so it considered the Blue
File as part of appellant’s Pitchess motion.
The court conducted two separate in camera hearings
during which it inspected confidential police records and heard
testimony concerning the discovery sought by appellant.9 The
police records and transcripts of the hearings are sealed. The
court ordered the police department to disclose information
“regarding an alleged complaint of racial profiling.” In addition,
it required disclosure of an incident from the Blue File where
Peinado had used force but no citizen complaint was filed and no
internal affairs investigation was conducted.
Appellant has requested “that this Court of Appeal conduct
an independent review of the reporter’s transcript of the in
camera hearings . . . in order to determine for itself whether any
police personnel record documents were incorrectly withheld.”
9The hearing dates were November 29, 2018, and February
19 and 28, 2019. The trial court considered the February 28
hearing to be “a continuation of the previous” February 19
hearing.
22
We review the trial court’s ruling for abuse of discretion. (People
v. Prince (2007) 40 Cal.4th 1179, 1285.)
After reviewing the sealed transcripts of the in camera
hearings and the police records submitted to the court during
these hearings, we are satisfied that the trial court did not abuse
its discretion. (See People v. Samayoa (1997) 15 Cal.4th 795, 827
[“Our independent in camera review . . . reveals no materials so
clearly pertinent to the issues raised by the Pitchess discovery
motion that failure to disclose them was an abuse of Pitchess
discretion”].)
DISPOSITION
The judgment is conditionally reversed. If, after the filing
of the remittitur in the trial court, the People do not bring
appellant to retrial on the charged offense (§ 69) as provided in
section 1382, subdivision (a)(2), the trial court shall proceed as if
the remittitur modified the judgment to reflect a conviction of the
lesser included offense of simple assault in violation of section
240, and resentence appellant accordingly. (Hayes, supra, 142
Cal.App.4th at p. 184; Brown, supra, 245 Cal.App.4th at p. 173.)
NOT TO BE PUBLISHED.
PERREN, J.
I concur:
GILBERT, P. J.
23
YEGAN, J.,
I respectfully dissent from the majority’s determination
that the trial court erroneously failed to instruct sua sponte on
the lesser included offense of simple assault. There is no
evidence from which a reasonable trier of fact could conclude
“‘that the lesser offense, but not the greater [a violation of Penal
Code section 69], was committed.’”10 (People v. Castaneda (2011)
51 Cal.4th 1292, 1327-1328 (Castaneda).)
“[I]f the officer is not acting within the scope of his duties
because of his use of excessive force, the defendant may still be
guilty of simple [assault or] battery if he responds with excessive
force.” (People v. Castain (1981) 122 Cal.App.3d 138, 145.)
Therefore, the question before us is twofold: First, is there
substantial evidence that Officer Peinado used excessive force so
that a reasonable trier of fact could find that appellant had not
violated section 69? Second, if there is such substantial evidence,
is there also substantial evidence that appellant used excessive
force in response to Peinado’s use of excessive force so that a
reasonable trier of fact could find that appellant had committed
simple assault?
We need not reach the second question. Based on Peinado’s
testimony and the video, there is no substantial evidence that he
used excessive force before appellant completed his violation of
section 69. The majority states, “[T]he jury could have rejected as
incredible Officer Peinado’s assertion that he did not grab
appellant’s left hand until after he threw it up into the air.” (Maj.
opn. ante, at p. 12.) But the video shows that Peinado grabbed
appellant’s left hand after appellant had raised both hands above
10 All statutory references are to the Penal Code.
his head and said, “Bullshit, man.” The majority observes,
“Contrary to appellant’s claim, the dash cam footage from Officer
Peinado’s vehicle does not actually show the officer grabbing
appellant’s hand before he threw it up in the air.” (Id., at p. 8.)
The majority continues, “[T]he jury could have found that
Officer Peinado used unreasonable or excessive force at the outset
of the encounter—either by immediately grabbing appellant’s left
hand, or by tapping him on the back and ordering him to place
both of his hand there . . . .” (Maj. opn. ante, at p. 13.) Officer
Peinado did not “immediately” grab appellant’s left hand. No
reasonable juror could find that Peinado used excessive force by
tapping appellant in the small of the back to indicate that he
should put his hands there. This act involved de minimis force.
The act was justified by Peinado’s concern for his safety. Peinado
explained that he “wanted [appellant’s] hand[s] in the small of
his back so [Peinado] could control him.” During closing
argument to the jury, defense counsel said: “[T]o an officer where
somebody’s hands are is very important. If they can’t see their
hands, there could be a threat.” In its statement of facts the
majority notes, “[T]he officer could not see both of appellant’s
hands, and appellant appeared to be looking around for an escape
route.” (Id., at p. 3.)
The majority asserts, “The jury also could have found that
Officer Peinado overreacted when he wrapped his arms around
appellant’s waist and threw him to the ground . . . .” (Maj. opn.
ante, at p. 13.) As I explain below, it was appellant, not Peinado,
who overreacted.
Officer Peinado’s encounter with appellant was not the
usual encounter between a police officer and a private citizen
stopped for an infraction. Appellant informed Peinado that he
2
was on probation for a criminal offense. Peinado did not know
the nature of the offense, which could have been violent.
Appellant had an intimidating presence. He was wearing a tank
top that displayed his brawny, powerful physique. Appellant’s
offense – riding a bicycle on the sidewalk – was minor, no more
serious than jaywalking. It would not have resulted in the
revocation of his probation. But appellant went ballistic. He was
belligerent and foul-mouthed. Appellant implored, “What did I
do? What did I fucking do?” Peinado responded, “You’re riding
on the sidewalk.” Peinado threw both arms up in the air and
shouted: “Bullshit, man! What the fucking shit is that?”
Appellant started to walk away and put his right hand
inside his right pants pocket. Peinado said, “Hey, don’t be
reaching for that!” Appellant disobeyed the command. He kept
his hand inside his pocket and kept walking away. The majority
acknowledges, “the jury could reasonably find that when
appellant started to walk away and put his right hand in his
pants pocket, Officer Peinado had grounds to reasonably fear that
appellant was attempting to retrieve a weapon and escape from
the detention.” (Maj. opn. ante, at pp. 8-9.) The fear of a weapon
was particularly reasonable in view of appellant’s hostility and
Peinado’s lack of knowledge whether appellant was on probation
for a violent offense. Peinado was unable to determine whether
appellant was armed.
What was Officer Peinado supposed to do at this point? He
had to make a split-second judgment. “In calculating whether
the amount of force was excessive, a trier of fact must recognize
that peace officers are often forced to make split-second
judgments, in tense circumstances, concerning the amount of
force required.” (Brown v. Ransweiler (2009) 171 Cal.App.4th
3
516, 528.) Peinado testified that he took appellant to the ground
“[t]o prevent him from continuing to reach inside his pocket and
potentially pull out some sort of weapon that he would use
against me.” There is no evidence that the takedown injured
appellant. Thus, a reasonable trier of fact could not find that
Peinado had used excessive force in executing the takedown.
“[O]fficers are not required to treat [resisting and belligerent]
detainees as gently as possible.” (Blazek v. City of Iowa City (8th
Cir. 2014) 761 F.3d 920, 926.)
Appellant landed on his back. Peinado was on top of him.
With his right closed fist, appellant immediately swung at
Peinado’s head and missed. The swing is shown on the video.
Peinado testified: “[Appellant] took a swing at me with a closed
fist, and at that time I started to attempt to control him and I
threw punches back.” In describing the content of the video, the
majority states: “As appellant is lying on his back with Officer
Peinado on top of him, he flails his legs and takes a swing at the
officer with his right hand. Officer Peinado punches appellant
several times while appellant is wildly moving his arms.” (Maj.
opn. ante, at p. 5.) The majority concludes that the jury could
have reasonably found that Peinado had “used unreasonable or
excessive force when he repeatedly hit appellant with his fists
and elbows.” (Id., at p. 13.)
If Officer Peinado used excessive force after appellant had
swung at his head, the use of such force does not constitute
substantial evidence from which a reasonable trier of fact could
conclude “‘that the lesser offense [simple assault], but not the
greater [violation of section 69], was committed.’” (Castaneda,
supra, 51 Cal.4th at pp. 1327-1328.) Before Peinado hit appellant
and while Peinado was acting lawfully, the violation of section 69
4
was completed when appellant swung at Peinado’s head.
Peinado’s subsequent use of excessive force would not absolve
appellant from liability for his initial assault. In People v.
Williams (2018) 26 Cal.App.5th 71, 73, the court held, “[I]f a
defendant delays, obstructs, or resists an officer who is engaged
in the lawful performance of his or her duties, the defendant may
be convicted of violating section 148(a)(1) even if the officer uses
excessive force subsequent to the completed violation.” The same
rule should apply when a defendant is charged with violating
section 69. The California Supreme Court explained: “‘[A]
defendant might resist a lawful arrest, to which the arresting
officers might respond with excessive force to subdue him. The
subsequent use of excessive force would not negate the
lawfulness of the initial arrest attempt, or negate the
unlawfulness of the criminal defendant’s attempt to resist it.
Though occurring in one continuous chain of events, two isolated
factual contexts would exist, the first giving rise to criminal
liability on the part of the criminal defendant, and the second
giving rise to civil liability on the part of the arresting officer.’”
(Yount v. City of Sacramento (2008) 43 Cal.4th 885, 899; see also
Williams, at p. 87 [“Logically, the use of excessive force after a
defendant’s completed section 148(a)(1) offense should not
provide a basis for finding the defendant did not violate section
148(a)(1)”].)
Accordingly, I would affirm the judgment.
NOT TO BE PUBLISHED.
YEGAN, J.
5
James F. Rigali, Judge
Superior Court County of Santa Barbara
______________________________
Nancy Wechsler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Scott A. Taryle, Supervising Deputy
Attorney General, Chung L. Mar, Deputy Attorney General, for
Plaintiff and Respondent.