Opinion
NOT TO BE PUBLISHED
(Super. Ct. No. SCV0014786)
RAYE, J.
During a routine traffic stop, plaintiff Allen C. Hassan got into an altercation with a California Highway Patrol (CHP) officer. The officer arrested Hassan, who was charged with numerous Penal Code and Vehicle Code violations. A jury convicted Hassan of, among other things, assault against a peace officer; resisting, obstructing, or delaying a peace officer; and resisting an executive officer.
Hassan filed a civil action against the officer and the CHP (defendants) for damages, alleging federal claims for excessive force in violation of Hassan’s civil rights under title 42 United States Code section 1983 (hereafter section 1983) and conspiracy to interfere with his civil rights in violation of title 42 United States Code section 1985, and state claims for assault and battery, violation of civil rights, and false imprisonment. The trial court determined Hassan’s civil claims were barred by the doctrine of collateral estoppel and dismissed the action. Hassan appeals. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2002 CHP Officer P. F. Cooney, Jr., stopped Hassan for driving 70 miles per hour in a 45 mile-per-hour zone. According to Officer Cooney, after Hassan refused to produce his registration and insurance information, he asked Hassan to step out of the car. As he stepped out, Hassan grabbed Officer Cooney’s badge, the pair scuffled, and both fell to the ground. The officer handcuffed and arrested Hassan. Cooney stated Hassan feigned a heart attack, but responding paramedics found him healthy.
These facts are taken from both defendants’ and Hassan’s trial briefs.
According to Hassan, Officer Cooney cursed at him when he asked Hassan to step out of the vehicle. Hassan merely pointed to Officer Cooney’s badge and requested the badge number after he got out of his car. Officer Cooney reached for Hassan’s belt, and the next thing Hassan remembered was waking up on his stomach with his hands in cuffs and his face bleeding.
A jury found Hassan guilty of resisting an executive officer; assault against a peace officer; resisting, obstructing, or delaying a peace officer; unsafe speed; and failure to present evidence of registration. (Pen. Code, §§ 69, 241, subd. (b), 148, subd. (a); Veh. Code, §§ 22350, 4462, subd. (a).) Hassan filed a motion for a new trial, which the trial court denied.
No criminal complaint or information of the original charges appears in the record.
Hassan appealed to the appellate department of the superior court. He argued the trial court erred in failing to give a unanimity instruction, since the evidence revealed three separate assaults. The appellate department found no error, explaining that “although defendant resisted the officer in different ways, his conduct was ongoing and could not be fairly divided into discrete criminal events. Furthermore, defendant offered the same defense to each act, i.e., ‘It did not happen.’ Defendant provided no reasonable basis for the jury to distinguish one defense [sic] from the other. This court has found no cases where incidents committed in the same vicinity and so close in time required a unanimity instruction.”
Hassan filed a civil action based on the traffic stop. Prior to trial, defendants filed a trial brief and in limine motions. In their trial brief, defendants argued Hassan was collaterally estopped from relitigating his criminal convictions.
In his trial brief, Hassan contended Officer Cooney testified to three assaults. Therefore, the jury could have convicted him on any one of those assaults because the record failed to specify which conduct formed the basis of his conviction. According to Hassan, under these circumstances, his civil claims would not invalidate his criminal convictions.
The trial court granted defendants’ motion in limine precluding Hassan from offering any evidence that he was not guilty of the crimes of which he was convicted. The court also ordered Hassan to appear and “inform the court if any cause of action or claim survives this ruling” and to “show any reason why judgment for defendants shall not be entered.” At the hearing, Hassan reiterated his argument that his actions during the arrest could be separated into “discrete acts” separate and apart from the conduct of which he was convicted.
The trial court, relying on the appellate department’s findings in the criminal case, issued an order finding Hassan’s civil action barred by the doctrine of collateral estoppel and dismissed the case. Following entry of judgment, Hassan filed a timely notice of appeal.
DISCUSSION
I
We first consider whether Hassan can maintain an action against the arresting officer under section 1983 in light of Hassan’s later criminal convictions. We conclude that principles articulated by the United States Supreme Court in Heck v. Humphrey (1994) 512 U.S. 477 [129 L.Ed.2d 383] (Heck), and our own Supreme Court in Yount v. City of Sacramento (2008) 43 Cal.4th 885 (Yount), foreclose Hassan’s civil rights claim.
The jury convicted Hassan of Penal Code section 148, subdivision (a), resisting an officer. The elements of section 148 are as follows: defendant willfully resisted, delayed, or obstructed a peace officer; when the officer was engaged in the performance of his or her duties; and the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.)
Under the Supreme Court decision in Heck,a civil rights claim under section 1983 that impugns or collaterally attacks the claimant’s prior criminal conviction may not be maintained unless that conviction has first been vacated by direct appeal or executive action, or called into question by a federal court’s issuance of a writ of habeas corpus. (Heck, supra, 512 U.S. at pp. 486-487.) If a plaintiff alleging excessive force must negate an element of the offense for which he has already been convicted, then a section 1983 action will not lie. (Heck, at p. 486, fn. 6.)
In Yount, the Supreme Court endorsed the utility (but not the application) of an analytical framework proposed by this court to resolve Heck issues: “‘First, the court must determine, using the substantial evidence test, what acts or omissions may have formed the factual basis for the plaintiff’s obstruction conviction. Second, the court must ascertain what alleged misconduct by the officer forms the factual basis for the civil rights claim (e.g., excessive force). The final step is to consider the relationship between the plaintiff’s acts of obstruction and the officer’s alleged misconduct.’” (Yount, supra, 43 Cal.4th at p. 894.)
Plaintiff Steven Yount was confronted by officers after a security guard saw him in a parking lot, very drunk and preparing to drive away, and called the police. Yount failed to cooperate and was handcuffed and restrained. He continued to struggle. One of the officers, intending to draw and fire his Taser gun to subdue Yount, mistakenly drew his pistol and shot Yount in the buttock. (Yount, supra, 43 Cal.4th at pp. 889-891.)
Yount pled no contest to a single count of violating Penal Code section 148, subdivision (a)(1). His subsequent section 1983 claim alleged a violation of his Fourth Amendment rights based on a lack of probable cause to arrest and use of excessive force. (Yount, supra, 43 Cal.4th at p. 895.) In holding that Yount’s claim was not barred by principles of collateral estoppel, this court noted that Yount engaged in multiple acts of resistance and obstruction, each of which would have supported a conviction of section 148. Because the record was silent as to which of the several acts was the basis for the conviction, the conviction was not a bar to his claim of excessive force; even if a claim might have been barred as to one act, other acts could have supported the civil rights action. (Yount, at p. 895.) The Supreme Court reversed and in so doing announced the principles that control the disposition of the present case.
First, the court held that while the criminal court did not identify the acts underlying Yount’s plea, the trial court in the civil rights case reviewed the underlying evidence and impliedly found that Yount's conviction was based on his entire course of resistance up until he was shot. This implied finding was supported by substantial evidence. (Yount, supra, 43 Cal.4th at pp. 895-896.) In effect there were no separate acts, not embraced by the Penal Code section 148 conviction, on which Yount could premise a civil rights claim without impugning the conviction.
Similarly, in the present case, Hassan asserts Officer Cooney’s testimony supported three different assaults: Hassan’s grabbing the officer’s badge, swinging at him, and spearing him with his shoulder. Based on this testimony, Hassan contends, the jury could have convicted him for violations of Penal Code sections 69, 148, and 241 on any of these three alleged assaults. Thus, there were “actions, separate and apart from the conduct for which Hassan was convicted, that constitute excessive force.” However, the appellate department found, in considering the need for a unanimity instruction, that Hassan’s conduct could not be divided into discrete criminal acts. There was, in effect, a continuing course of conduct. As in Yount, Hassan’s conviction was based on his entire course of resistance up until he was subdued. Like Yount, Hassan fails to establish, as a factual matter, that his conviction was based on acts of alleged misconduct other than those that would underlie his civil rights claim.
Again like Yount, Hassan also seems to argue that whatever the scope of his criminal conviction, “Heck does not apply even if success on the section 1983 claim would be inconsistent with a fact established by his conviction for resisting the officers, so long as there remains, undisturbed by the civil rights action, at least one criminal act sufficient to sustain the criminal conviction. Or, put another way, so long as one act of resistance remains undisturbed to support the criminal conviction, it is immaterial that success on the section 1983 claim might be inconsistent with other facts that supported the criminal conviction.” (Yount, supra, 43 Cal.4th at p. 896.) The Supreme Court also rejected this argument, finding “no support in Heck for the notion that the bar preventing collateral attacks on a criminal conviction is inapplicable when the plaintiff seeks to undermine only a part of his or her criminal conviction.” (Ibid.) To so hold would permit a section 1983 plaintiff to circumvent Heck by artful pleading. A plaintiff could file suit “against fewer than all of the potential defendants or by defining the civil cause of action to encompass fewer than all of the criminal acts of resistance... involved in the incident.” (Yount, at p. 896.)
Such a rule “would also have the perverse effect of rewarding those (like Yount) who engage in multiple acts of resistance with the right to pursue a civil action against the officers, since only those who commit a single act of resistance will find their civil action barred by Heck.” (Yount, supra, 43 Cal.4th at p. 897.) Here, Hassan concedes that at least one act of assault supported his convictions for violating Penal Code sections 148 and 69 and he thus is barred from basing a section 1983 claim on the officer’s conduct in relation to that assault. He argues, however, there were other assaults beyond the minimum necessary to support his conviction and thus he is not foreclosed from litigating the propriety of the officer’s conduct in relation to those assaults. This is the same argument rejected by the court in Yount. We reject it here as well.
II
The Supreme Court in Yount held the plaintiff’s claims were not completely barred. To the extent the plaintiff alleged the officers’ use of deadly force was excessive, the claim was not barred because such a claim does not implicitly question the validity of the plaintiff’s conviction for resisting the officers. The Yount court determined that a conviction for resisting arrest does not constitute a per se determination that any amount of force is acceptable. (Yount, supra, 43 Cal.4th at pp. 898-899.) In Yount, the plaintiff alleged the officer used excessive force by shooting him with a pistol instead of a Taser gun.
Hassan, in his reply brief, attempts to exploit this very narrow exception to the collateral estoppel doctrine that would otherwise apply: “Here, [Officer] Cooney’s subsequent act of slamming Hassan to the ground and jumping on top of him was excessive force and Hassan’s convictions do not bar him from filing a civil suit.”
However, Hassan failed to raise this argument in the trial court or in his opening brief. Points raised for the first time in a reply brief will ordinarily not be considered. Such consideration deprives the respondent of the opportunity to counter the argument. (Save the Sunset Strip Coalition v. City of West Hollywood (2001) 87 Cal.App.4th 1172, 1181-1182, fn. 3; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.)
In any event, the argument is without merit. The court in Yount distinguished between a claim that Yount “offered no resistance, that he posed no reasonable threat of obstruction to the officers, and that the officers had no justification to employ any force against him” from a claim that an officer’s “use of deadly force was an unjustified and excessive response to Yount’s resistance.” (Yount, supra, 45 Cal.4th at p. 898.) In the first instance, the claim is barred under Heck as the claim is inconsistent with a conviction for resisting an officer in the lawful performance of his duties; however, Yount’s claim alleging that the use of deadly force was not a reasonable response to his acknowledged acts of resistance does not “‘implicitly question the validity of [his] conviction’ for resisting the officers in this instance [citation].” (Id. at p. 899.)
Here, Hassan claims that Officer Cooney was the aggressor from the moment of the vehicle stop. “Cooney was loud and angry when he asked Hassan to step out of the vehicle,... cursed at him and referred to him as a ‘F’ing foreigner’ and ‘fucking asshole.’” Under Hassan’s version of events, he pointed at Cooney’s badge and requested the officer’s badge number; the next thing he remembers is waking up handcuffed on his stomach. Hassan’s claim falls within the first category of claims discussed in Yount. Hassan’s claim is, in essence, that he did nothing wrong that would have warranted the use of any force against him -- a claim that is inconsistent with his criminal convictions.
DISPOSITION
The judgment is affirmed. Defendants shall recover costs on appeal.
We concur: BLEASE, Acting P. J., NICHOLSON, J.