Opinion
G056950
05-05-2020
THE PEOPLE, Plaintiff and Respondent, v. MATHIAS ALEXIS HANDRINOS, Defendant and Appellant.
Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17NF2234) OPINION Appeal from a judgment of the Superior Court of Orange County, Steven D. Bromberg, Judge. Affirmed in part, reversed in part, and remanded with directions. Eric E. Reynolds, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant Mathias Alexis Handrinos of recklessly evading a peace officer (Veh. Code, § 2800.2), and assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)). The trial court found true allegations appellant had served three prior prison terms (§ 667.5, subd. (b)). He was sentenced to a seven-year prison term, comprising the upper term of five years on the assault charge, a concurrent midterm of two years on the evading charge, and 2 one-year prior prison term enhancements. The court struck the third prison prior, and imposed various fines and fees. Appellant did not object to the fines and fees.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant raises four contentions on appeal: (1) the trial court erroneously denied his motion to suppress evidence; (2) insufficient evidence supports his assault conviction because the police officer victim was not lawfully engaged in the performance of her peace officer duties when he assaulted her; (3) we should independently review the sealed portion of the record of the Pitchess motion hearing to determine whether the trial court correctly determined there was nothing discoverable in the victim's personnel file; and (4) the imposition of the fines and fees without a finding he had the ability to pay them violates the federal Constitution.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We reject his first two claims: appellant was not unlawfully detained, and the officer was in the lawful performance of her duties when she was assaulted. We have also conducted the limited review California law allows of the in camera Pitchess hearing record and find no basis for reversal.
We received supplemental briefing on the effect of the October 2019 amendment to section 667.5, subdivision (b), effective January 1, 2020, which eliminated this enhancement for most prior prison convictions. (See Stats. 2019, ch. 590, § 1.) We conclude the amended statute retroactively applies to appellant, the 2 one-year enhancements for his prior prison terms must be stricken, and he must be resentenced.
Because we are remanding for resentencing, we need not address the constitutionality of the trial court's failure to determine whether appellant had the ability to pay the restitution fine and court fees. Instead, appellant shall be entitled to demonstrate his inability to pay at the resentencing hearing if he desires to do so.
The matter is therefore remanded to the trial court with directions to strike the enhancements, resentence appellant, and prepare an amended abstract of judgment. In all other respects the judgment is affirmed.
FACTS
Police officer Lindsay Cruz noticed a car parked horizontally across three parking spots in the parking lot of a Buena Park motel. Cruz walked up to the car, and asked the driver — appellant — what he was doing there. After a brief conversation and a records check, she asked appellant to step out so she could investigate whether he was under the influence. He did not comply. Cruz tried to open the door using the outside door handle, but it was broken. She reached into the vehicle to find the interior door handle. Appellant reached under the steering column and started the car. With her other hand, Cruz unholstered her gun and pointed it at appellant. She heard the engine rev and told appellant, "Don't you do it. I will shoot your fucking head."
We discuss the details of this initial encounter more fully below in our review of appellant's motion to suppress.
Nonetheless, appellant put the car into drive and accelerated. Because her arm was still inside, Cruz was forced to run alongside the car as it moved five or six feet. She was able to remove her arm, but the car struck her left knee, causing swelling, bruising, and pain.
Cruz returned to her car and began a pursuit. She activated the red lights atop her patrol car and turned on the siren. Appellant crossed two lanes of traffic without using a turn signal and made a U-turn, impeding the safe flow of oncoming traffic. He nearly hit another car, and at one point almost hit Cruz's car. Appellant made it to the freeway, but traffic there was slow and congested so he drove in a lane not intended for regular traffic at an unsafe speed. At one point, he crossed from an off-ramp back into an emergency lane. Finally, at the interchange with another freeway, Cruz lost sight of appellant's car, and ended her pursuit.
The next day, police found and arrested appellant in the parking lot of a Costa Mesa motel. He was seated in the driver's seat of the same car Cruz had pursued the day before.
DISCUSSION
The Suppression Motion
Appellant brought a motion to suppress, arguing his initial detention was unsupported by reasonable suspicion of criminal activity. At the motion hearing, the parties "agree[d] that the only issue contested is the initial detention of the defendant." Defense counsel stated she was only contesting "the detention, lack of reasonable suspicion . . . and prolonged detention, that would be it."
Cruz testified at the motion hearing and gave the same basic account she would later give at trial. She was on patrol one August afternoon and drove by a particular Motel 6. She said this was a high crime area, known for stolen vehicles, narcotics use, and drug dealing. She saw a car with Texas license plates improperly parked across several parking stalls in the motel parking lot. Appellant and a woman were seated in the car. The driver's side door handle was broken. To Cruz, this was suspicious because it was indicative of a stolen vehicle or one that had recently been broken into.
Cruz parked her patrol car several feet behind appellant's car, such that it did not block his car and, as soon became apparent, he could still drive out of the parking lot. She did not activate her car's overhead lights because she was making a "consensual contact," and not a detention.
Cruz approached appellant's car and knocked on the driver's side window. After a few seconds passed, appellant looked up at her. She asked him to roll down the window, which he did, even though she did not threaten him or order him to do so. Cruz spoke to appellant "for a few moments," and asked him for some identification. He complied. She held onto his driver's license "for a few moments" while she talked to him.
As Cruz spoke with appellant, she noticed he was sweating, had dilated pupils, appeared nervous, and was "constantly fidgeting," repeatedly "licking his lips," and his eyes were moving "back and forth" and "all around." Based on these symptoms, she believed appellant to be "under the influence of a controlled substance." Specifically, based on her training and experience, these manifestations were consistent with someone who was under the influence of a central nervous system stimulant such as methamphetamine.
Cruz returned to her patrol car to run a records check on the car, appellant's driver's license, and the passenger's identification card. She discovered appellant's license was valid and the passenger had a previous arrest in Buena Park for narcotics possession. This records check took about five minutes.
Cruz walked back to appellant's car and "asked [him] to exit the vehicle." She wanted to "conduct a further evaluation" to check if he was under the influence. She was also suspicious the car was stolen because, during the records check, she had discovered it was a rental vehicle and the dispatcher was unable to confirm appellant was in lawful possession of the car.
The dispatcher told Cruz there was no "return" from the computer check on the Texas license plate. Cruz explained the absence of a "return" on an out-of-state plate is not necessarily indicative of anything illegal, as there may be innocent explanations, but there also "could be something fishy about it, something illegal."
Appellant refused to get out of the car. She ordered him several more times to do so, but he would not comply. She unsuccessfully attempted to open the car's door from the outside, so she reached inside for the interior door handle. Appellant suddenly reached underneath the steering column and turned on the car's ignition. She heard the "engine rev like it was going to accelerate." She unholstered her gun, pointed it at appellant, and told him, "Don't you fucking do it. I will shoot you in the head."
This quotation shows up two different ways in the transcript, as it is here and as it appears on page 3.
Appellant put the car into drive and accelerated. Cruz ran with the car for five or six feet, with her arm still inside the car. She reholstered her gun and was able to pull her arm out. Appellant's car struck her knee, he sped away, and the pursuit ensued.
The prosecutor argued the encounter was consensual up until Cruz asked appellant to get out of the car because appellant had voluntarily given Cruz his driver's license. He also argued that Cruz had reasonable suspicion to detain appellant at the outset because of the broken door handle and the location, which suggested a possibly stolen car. In addition, appellant's physical symptoms supported an inference he was under the influence of drugs. He concluded this "was a consensual encounter that led to [Cruz] developing reasonable suspicion for a stolen vehicle and the defendant being under the influence."
Defense counsel argued Cruz had no reasonable suspicion of any parking-related offenses because the car was in a private parking lot, and that when Cruz asked for appellant's identification, the encounter was transformed into a detention. She insisted the facts known to Cruz at that point did not rise to the level of reasonable suspicion, either for a possible stolen car or a person under the influence of drugs. Finally, she argued the detention was unlawfully prolonged.
The trial court denied the motion, concluding that regardless of when the detention began, Cruz' initial observation of physical symptoms indicating appellant might be under the influence established reasonable suspicion for a detention.
When reviewing a trial court's ruling on a suppression motion, "we defer to the trial court's factual findings, express or implied, where supported by substantial evidence." (People v. Simon (2016) 1 Cal.5th 98, 120.) We "independently appl[y] the law to the trial court's factual findings, determining de novo whether the findings support the trial court's ruling." (Gardner v. Appellate Division of Superior Court (2019) 6 Cal.5th 998, 1006.) Thus, "[i]n determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment, we exercise our independent judgment. [Citations.]" (People v. Glaser (1995) 11 Cal.4th 354, 362 (Glaser).)
Because appellant offered no contrary evidence below, and does not dispute the facts underlying the trial court's ruling, we independently review whether those facts constitute reasonable suspicion justifying a detention. (Cf. People v. Zaragoza (2016) 1 Cal.5th 21, 57 [same for probable cause to arrest].)
The United States Supreme Court has "observed that searches and seizures '"conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well delineated exceptions."' [Citations.]" (Minnesota v. Dickerson (1993) 508 U.S. 366, 372.) "One such exception . . . [is] 'where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot . . .,' the officer may briefly stop the suspicious person and make 'reasonable inquiries' aimed at confirming or dispelling his suspicions." (Id. at pp. 372-373, quoting Terry v. Ohio (1968) 392 U.S. 1, 30 (Terry).) "[I]f there are articulable facts supporting a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information." (Hayes v. Florida (1985) 470 U.S. 811, 816.)
In making reasonable-suspicion determinations, the high court has repeatedly said reviewing courts "must look at the 'totality of the circumstances' of each case to see whether the detaining officer has a 'particularized and objective basis' for suspecting legal wrongdoing. [Citation.] This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that 'might well elude an untrained person.' [Citations.]" (United States v. Arvizu (2002) 534 U.S. 266, 273-274; see Terry, supra, 392 U.S. at p. 27 ["[I]n determining whether the officer acted reasonably . . ., due weight must be given . . . to the specific reasonable inferences which he is entitled to draw from the facts in light of his experience."].) Reasonable suspicion "is considerably less than proof of wrongdoing by a preponderance of the evidence" and "obviously less demanding than that for probable cause[.]" (United States v. Sokolow (1989) 490 U.S. 1, 7.)
Whether a search or seizure was reasonable is assessed under an objective standard, based on the facts and circumstances known to the officer but without regard to the officer's subjective state of mind. (Scott v. United States (1978) 436 U.S. 128, 136 "[Subjective intent alone . . . does not make otherwise lawful conduct illegal or unconstitutional"]; cf. People v. Souza (1994) 9 Cal.4th 224, 230-231 (Souza) [an investigative detention is legally justified "when the detaining officer can point to specific articulable facts that, considered in light of the totality of the circumstances, provide some objective manifestation that the person detained may be involved in criminal activity"].)
Here the parties disagree as to just when appellant was detained. Both agree that merely asking for a driver's license and examining it does not transform an otherwise consensual encounter into a detention. (Hiibel v. Sixth Judicial Dist. Court of Nev. (2004) 542 U.S. 177, 185.) Similarly, "interrogation relating to one's identity . . . does not, by itself, constitute a Fourth Amendment seizure." (I.N.S. v. Delgado (1984) 466 U.S. 210, 216.)
Moreover, "simply parking behind a defendant would not reasonably be construed as a detention." (People v. Kidd (2019) 36 Cal.App.5th 12, 21.)
Appellant argues he was detained for Fourth Amendment purposes when Cruz took possession of his driver's license and returned with it to her patrol car for the records check. The Attorney General responds appellant was not detained until Cruz returned and asked him to get out of his car. We need not resolve this dispute because, like the trial court, we find sufficient grounds for a detention existed when Cruz first observed the appellant's objective symptoms of being under the influence, before she returned to her car for the records check.
As noted, during her initial contact with appellant, Cruz observed he was sweating, had dilated pupils, appeared nervous, and was "constantly fidgeting," repeatedly "licking his lips," and his eyes were moving "back and forth" and "all around." Based on her specialized knowledge, training and experience, these symptoms led her to believe appellant to be "under the influence of a controlled substance." These were specific, objective manifestations of possible criminal activity, not merely inchoate suspicions.
Appellant points out each of these outward appearances of being under the influence could have equally innocent explanations. However, this argument fallaciously analyzes each symptom individually and not as a whole. Moreover, that a person's conduct is consistent with innocent behavior does not necessarily defeat the existence of reasonable suspicion to detain. (Souza, supra, 9 Cal.4th at pp. 233; In re Tony C. (1978) 21 Cal.3d 888, 894 [when circumstances are "'consistent with criminal activity,' they permit — even demand — an investigation. . . ." A different result is not warranted merely because circumstances known to an officer may also be "'consistent with lawful activity'"].)
"What is required is not the absence of innocent explanation, but the existence of 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.'" (Glaser, supra, 11 Cal.4th at. p. 373, quoting Terry, supra, 392 U.S. at p. 21.) Cruz detailed exactly what she observed and, based on her training and experience, what it meant. These are "specific and articulable facts" from which Cruz could reasonably suspect appellant was under the influence, and which therefore justified appellant's detention.
Appellant also claims that, even if the initial detention was technically justified, it became unreasonably prolonged when, after she completed her records check and returned to appellant's car, Cruz ordered him to get out of the car. He offers several reasons for this contention, none of which has merit.
First, because Cruz "admitted on cross-examination that she was looking for a reason to arrest appellant," appellant insists the detention became unlawfully prolonged because of Cruz's motives, and its illegality extended to her attempt to get him to get out of the car. However, the reasonableness of a detention is assessed under an objective standard, based on the facts and circumstances known to the officer, and the officer's subjective state of mind is irrelevant. (Cf. Whren v. United States (1996) 517 U.S. 806, 813 ["Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis"]; United States v. Robinson (1973) 414 U.S. 218, 221, fn. 1 [traffic-violation arrest would not be rendered invalid by the fact that it was "a mere pretext for a narcotics search"].)
Second, appellant argues his detention was unduly prolonged because Cruz "retain[ed] his [driver's] license for several minutes." Cruz testified the records check took about five minutes. Assuming without deciding that the taking of appellant's license back to the patrol car constituted a detention (but see People v. Linn (2015) 241 Cal.App.4th 46, 60-63 , and cited cases), appellant does not explain why this brief five-minute time period is constitutionally significant in this context. Five minutes is not an unreasonable amount of time to conduct a records check on an out-of-state car and its two occupants, and it did not unconstitutionally prolong the detention.
Finally, appellant contends his detention became unlawful when Cruz returned and asked him to get out of the car to further investigate whether he was under the influence. He argues this "shows [Cruz] was unlawfully attempting to detain or arrest appellant." (Italics added.) The notion that "attempted" or "threatened" detentions are unlawful has long gone extinct. (People v. Arangure (1991) 230 Cal.App.3d 1302, 1308; California v. Hodari D. (1991) 499 U.S. 621, 626 & fn. 2 (Hodari D.) ["[N]either usage nor common-law tradition makes an attempted seizure a seizure. The common law may have made an attempted seizure unlawful in certain circumstances; but it made many things unlawful, very few of which were elevated to constitutional proscriptions."].) More importantly, even though Cruz asked and then repeatedly ordered appellant to get out of his car, he failed to do so. Indeed, considering appellant sped off after being told to get out, it is hard to characterize Cruz's demand as accomplishing a detention at all, let alone a "prolonged" one.
The detention in this case was supported by articulable suspicion of criminal activity, objectively justifiable under the applicable standard, and not unreasonably prolonged. The trial court did not err in denying appellant's suppression motion.
Sufficiency of the Evidence
Appellant next claims his conviction for assault with a deadly weapon on a peace officer must be reversed because there was insufficient evidence Cruz was in the lawful performance of her duties when appellant stuck her with his car. Specifically, he first contends Cruz unlawfully detained him. Second, by pointing her gun at him and threatening to shoot him, he argues Cruz used unlawfully excessive force against him before he struck her leg as he was driving away. We are unpersuaded.
"In reviewing a sufficiency of evidence claim, the reviewing court's role is a limited one." (People v. Smith (2005) 37 Cal.4th 733, 738.) We "evaluate the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — evidence that is reasonable, credible, and of solid value — from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]" (People v. Ramos (2016) 244 Cal.App.4th 99, 104; Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) If more than one inference may reasonably be drawn from the evidence, we accept the inference supporting the judgment. (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Similarly, "[w]e resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. [Citation.]" (People v. Maury (2003) 30 Cal.4th 342, 403.) It is the jury that weighs the evidence, assesses witness credibility, and resolves conflicts in the testimony. (People v. Sanchez (2003) 113 Cal.App.4th 325, 330 (Sanchez).) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support"' the jury's verdict. [Citation.]" (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Simply put, an appellant "bears an enormous burden" to prevail on a sufficiency of the evidence claim. (Sanchez, supra, 113 Cal.App.4th at p. 330.)
Section 245, subdivision (c), establishes the offense of "assault with a deadly weapon or instrument, other than a firearm . . . upon the person of a peace officer . . . engaged in the performance of . . . duties," with actual or constructive knowledge the victim is an officer so engaged. (Italics added.)
"The longstanding rule in California and other jurisdictions is 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 the offense against the officer was committed. [Citations.] 'The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officer's conduct is unlawful. . . . [Citation.]' [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 815.) "[A]lthough the court, not the jury, usually decides whether police action was supported by legal cause, disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element, since the lawfulness of the victim's conduct forms part of the corpus delicti of the offense. [Citations.]" (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217-1218, superseded by statute on other grounds in Satele v. Superior Court (2019) 7 Cal.5th 852, 857.)
As a result, the jury was instructed with CALCRIM No 860, which told them they must find that, "[w]hen the defendant acted, the person assaulted was lawfully performing [her] duties as a peace officer . . . [¶] [and] . . . the defendant . . . knew, or reasonably should have known, that the person assaulted was a peace officer who was performing [her] duties." They were further instructed, "[a] person who is employed as a police officer by Buena Park Police Department is a peace officer. [¶] The duties of a peace officer include detaining and investigating possible criminal suspects and/or criminal activity including infraction, misdemeanor and felony violations of law whether on private or public property."
The jury was also instructed with a fact-modified version of CALCRIM No. 2670: "[T]he People have the burden of proving beyond a reasonable doubt that Officer Cruz was lawfully performing her duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of violating Pen. Code § 245(c). . . . [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully detaining someone, or using unreasonable or excessive force when making or attempting to make an otherwise lawful detention. [¶] . . . [¶] Special rules control the use of force. [¶] A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense. [¶] If a person knows, or reasonably should know, that a peace officer is detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force. 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. [¶] A person being detained 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 a reasonable person in the same situation would believe is necessary for his or her protection."
Appellant makes two arguments in this regard. First, he claims there was insufficient evidence Cruz was in the lawful performance of her duties because she unlawfully detained him. This argument is predicated on his assumption he "had no obligation to comply with the order because he was being detained unlawfully." However, we have already rejected that contention and have found there was reasonable suspicion of criminal activity warranting appellant's original detention. Thus, this contention is belied by the fact we have already determined — under a more exacting standard of review — that the detention was lawful.
His second claim is that Cruz "used unlawful excessive force during the detention." (Italics added.) Specifically, he insists Cruz "used excessive force by drawing her gun and aiming it at appellant when she ordered him out of the car." (Italics added.) However, this misstates the trial evidence.
Rather, the testimony shows that when Cruz ordered appellant to step out, appellant asked her why, and she repeated her order several times. At this point, she did not draw her gun. Appellant refused to comply with Cruz's orders to get out of the car. She tried to open the door using the outside door handle, but it did not work. Again, she had not drawn her gun. She reached into the vehicle with her left arm to find the interior door handle. As she was "standing directly outside of the driver's door with [her] arm still inside the vehicle," appellant "suddenly reached towards the area underneath the steering column." Cruz said she "didn't know what he was doing. It scared me because that could be a place where a weapon is hidden. Then I saw that he turned the keys so that the vehicle would turn on."
Only then did Cruz "unholster [her] weapon and point[] it at him," and say, "Don't you do it. I will shoot your fucking head." The "it" she was referring to, of course, was what he did anyway: put the car into drive and flee with Cruz hanging onto the car door. Thus, Cruz "heard the vehicle's engine rev. . . [and] then he put the car into drive."
When asked why she unholstered her gun, Cruz stated, "Initially because his sudden movement alerted me to possibly getting a weapon underneath the steering column. Then when he turned on the vehicle I kept my weapon there because I didn't know what he was going to do. I didn't know if he was going to use the vehicle to hit me or my partner."
It is well-settled that an officer who uses unreasonable or excessive force is not lawfully performing her duties. (Beets v. County of Los Angeles (2011) 200 Cal.App.4th 916, 927.) "The use of excessive force by law enforcement officers is analyzed under the Fourth Amendment's objective reasonableness requirement for a seizure of the person . . . ." (People v. Brown (2016) 245 Cal.App.4th 140, 157 (Brown).) "A 'seizure' triggering the Fourth Amendment's protections occurs only when government actors have, 'by means of physical force or show of authority . . . in some way restrained the liberty of a citizen[.]'" (Graham v. Connor (1989) 490 U.S. 386, 395, fn. 10 (Graham), citing Terry, supra, 392 U.S. at p. 19, fn. 16, and Brower v. County of Inyo (1989) 489 U.S. 593, 596.)
Consequently, the threshold issue is whether Cruz's "show of authority," i.e., unholstering her gun and pointing it at appellant with her accompanying threat, was a seizure under the Fourth Amendment. As noted above, an attempted seizure is not a Fourth Amendment seizure. (Hodari D., supra, 499 U.S. at p. 626 & fn. 2.) Appellant did not comply with Cruz's demands, even after she pointed her gun at him. Instead, he ignored them and fled; his liberty was not restrained in any way. Put simply, he was not "seized."
But even if Cruz's act of pointing her gun at appellant did constitute a seizure, his excessive force claim still fails. In Graham, the high court stated that "[d]etermining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of '"the nature and quality of the intrusion on the individual's Fourth Amendment interests"' against the countervailing governmental interests at stake. [Citations.]" (Graham, supra, 490 U.S. at p. 396.) Thus, "Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." (Ibid.)
Graham identified three factors relevant to this "careful balancing" of interests: (1) the severity of the crime at issue; (2) whether the suspect posed 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. (Graham, supra, 490 U.S. at p. 396.) Furthermore, "[t]he 'reasonableness' of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight," because "[t]he 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 . . . ." (Id. at pp. 396-397.)
The relevant Graham factor here is appellant's immediate threat to the officer's safety as he started his car and appeared to be ready to drive off with her arm still inside. Indeed, that threat was almost immediately realized when he did just that, striking Cruz with his car as he did so. (See Brown, supra, 245 Cal.App.4th at p. 159, fn. 5, citing Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 712 [the most important Graham factor is "'whether the suspect posed an immediate threat to the officers or others, as measured objectively under the circumstances'"].)
As Cruz reached inside to open the door, appellant reached down, possibly for a weapon, but instead started the car and prepared to drive off with Cruz's arm inside the car - the functional equivalent. Cruz reasonably believed appellant was about to use the car to hurt either her or her back-up officer. (Cf. § 835a, subds. (c)(1) ["[A] peace officer is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary . . . [¶] [t]o defend against an imminent threat of death or serious bodily injury to the officer or to another person"], (e)(1) ["'Deadly force' means any use of force that creates a substantial risk of causing death or serious bodily injury, including, but not limited to, the discharge of a firearm"] & (e)(2) ["A threat of death or serious bodily injury is 'imminent' when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer . . . [which] from appearances, must be instantly confronted and addressed"].)
In light of this immediate threat, Cruz was justified in unholstering her gun and pointing it at appellant. Cruz did not point her gun at appellant to effect a detention or to further her investigation. Rather, she unholstered her gun in response to appellant reaching under the steering column, and turning the keys causing Cruz to think he might be reaching for a weapon. She continued to point her gun at appellant because he started and revved the engine, posing an additional threat.
Appellant relies upon People v. Adams (2009) 176 Cal.App.4th 946, but it is distinguishable. Adams was a citizen's arrest case, and involved whether a jury was correctly instructed regarding under what circumstances a person may engage in self-defense when another person is using unreasonable or excessive force to make a citizen's arrest. (Id. at p. 954.) Characterizing the instructions the trial court used as less than "a model of perfection," the court nonetheless found no error because, when read together, the instructions correctly told the jury "if the arresting party takes a swing, the arrestee need not suffer the blow before undertaking to defend himself if he "'reasonably believed that he was in imminent danger.'" (Id. at pp. 953-954.)
Here, there is no evidence appellant was acting in self-defense when he assaulted Cruz. There is nothing to indicate appellant struck Cruz with his car in order to defend himself from her; indeed, she had already reholstered her gun before she was struck after she worked to free her arm from inside the car. His assault was to further his escape, not to defend himself from Cruz. Moreover, because he did not testify, there is no evidence appellant used "that degree of force that he . . . actually believe[d] [was] reasonably necessary to protect himself . . . from [Cruz's] use of unreasonable or excessive force[.]" (CALCRIM No. 2670, italics added.)
Finally, even if the evidence in this case could support appellant's claims of an unlawful detention or use of excessive force, we must recall we are assessing these claims in the context of a jury verdict. We are not free to reform that verdict simply because another theory is plausible. (People v. Jackson (2016) 1 Cal.5th 269, 345, quoting People v. Albillar (2010) 51 Cal.4th 47, 60 ["If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding"].) "Whether a reasonable trier of fact could reach a different conclusion based upon the same facts does not mean the verdict is not supported by sufficient evidence." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 490.)
Here the jury was correctly instructed with the law on detentions and reasonable use of force, and appellant does not take issue with these instructions. Instead, he argues the jury got it wrong in its application of this law to the facts of this case. This misconstrues the standard of review in an insufficiency of the evidence claim and in essence asks us to reweigh the evidence. The evidence here substantially supports the jury's finding Cruz was in the lawful performance of her duties when she was assaulted. Appellant's conviction on the assault charge must therefore stand.
The Pitchess Motion
Appellant asks us to independently review the sealed record of the in camera Pitchess hearing to determine whether the trial court correctly determined there was nothing discoverable in Cruz's personnel file. The Attorney General has no objection.
"'A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.]' [Citation.]" (People v. Yearwood (2013) 213 Cal.App.4th 161, 180; see People v. Mooc (2001) 26 Cal.4th 1216, 1220 (Mooc).) "[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." (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines).) "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.]" (Ibid.)
"If the trial court concludes the defendant has . . . made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion" (Mooc, supra, 26 Cal.4th at p. 1226), and "the court must review the requested records in camera to determine what information, if any, should be disclosed." (Gaines, supra, 46 Cal.4th at p. 179.) "Subject to statutory exceptions and limitations . . . the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' [Citations.]" (Mooc, supra, 26 Cal.4th at p. 1226.) We review "[a] trial court's ruling on a motion for access to law enforcement personnel records . . . for abuse of discretion." (People v. Hughes (2002) 27 Cal.4th 287, 330.)
Here, the trial court followed the proper procedure and created an adequate record of the in camera hearing. (See Mooc, supra, 26 Cal.4th at pp. 1228-1229.) We have examined the record of the in camera hearing where the court reviewed Cruz's personnel file and described its contents. That is all the law allows us to do; we do not see the actual file. As near as we can determine, trial court did not fail to disclose materials "so clearly pertinent to the issues raised by the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion." (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We therefore hold the trial court's ruling was not an abuse of discretion.
The 2 One-Year Prison Prior Enhancements
As noted, we received supplemental briefing on the effect of the 2019 amendment to section 667.5, subdivision (b), which eliminated this enhancement for almost all prison prior commitments. The parties agree the amendment retroactively applies to appellant and we concur. Appellant's prior convictions for possession of methamphetamine for sale (Health & Saf. Code, § 11378), and felon in possession of ammunition (§ 30305, subd. (a)(1)), no longer qualify for the one-year prison prior enhancement. The 2 one-year enhancements must therefore be stricken. (People v. Petri (2020) 45 Cal.App.5th 82, 93-94, petitions for review filed March 4 & March 12, 2020, S261019; People v. Lopez (2019) 42 Cal.App.5th 337, 341-342.)
Only "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code" now qualifies for the one-year enhancement. (§ 667.5, subd. (b), eff. Jan. 1, 2020.)
Nevertheless, because the trial court imposed a concurrent sentence on the reckless evasion count, remand for resentencing is necessary because the court retains discretion to consider a different sentence for appellant. (People v. Jennings (2019) 42 Cal.App.5th 664, 682 (Jennings) [remanded for resentencing because trial court had optional sentencing discretion on remand]; cf. People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 (Valenzuela) [a trial court may "revisit all prior sentencing decisions when resentencing a defendant"]; People v. Burbine (2003) 106 Cal.App.4th 1250, 1258 (Burbine) ["'When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme'"]; People v. Hill (1986) 185 Cal.App.3d 831, 834 ["Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices"].) We offer no opinion about whether that reconsideration should result in any change.
The Restitution Fine and Court Fees
Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), appellant contends the trial court violated his due process rights by imposing certain fines and fees without determining he had the financial ability to pay them. Appellant did not raise this issue at his sentencing hearing.
We need not address the issue here, nor opine whether Dueñas was correctly decided or is applicable to this case. Assuming without deciding that Dueñas does apply, because we are remanding the matter for resentencing, appellant will have an opportunity to show his inability to pay the restitution fine and court fees at his resentencing hearing. (Cf. People v. Castellano (2019) 33 Cal.App.5th 485, 490-491 [remanding so defendant may request a hearing and present evidence demonstrating his inability to pay the fines, fees and assessments imposed by the trial court]; People v. Santos (2019) 38 Cal.App.5th 923, 933-934 [same]; cf. Valenzuela, supra, 7 Cal.5th at pp. 424-425 and Burbine, supra, 106 Cal.App.4th at p.1258 [on remand for resentencing trial court is entitled to consider the entire sentencing scheme].)
DISPOSITION
The judgment is reversed and remanded for resentencing, with directions to strike appellant's prior prison commitment enhancements. We express no opinion concerning whether or how the court should exercise its sentencing discretion on remand in light of this two-year reduction in defendant's sentence. (Jennings, supra, 42 Cal.App.5th at p. 682; People v. Keene (2019) 43 Cal.App.5th 861, 865.)
At the resentencing hearing, appellant should be permitted to show whether he is unable to pay the restitution fine and court fees. Because no showing has yet been made, we express no opinion how the trial court should rule on the issue.
Thereafter, the superior court clerk shall prepare an amended abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BEDSWORTH, ACTING P. J. WE CONCUR: ARONSON, J. GOETHALS, J.