Opinion
1:03-CV-6619 OWW SMS.
August 30, 2006
ORDER GRANTING, IN PART, AND DENYING, IN PART, MOTION OF CITY OF FRESNO, RODNEY CANCIO, AND RAY VILLALVAZO FOR SUMMARY JUDGMENT (Fed.R.Civ.P. 56)
1. INTRODUCTION
Defendants the City of Fresno ("City"), Fresno Police Officer Rodney Cancio ("Cancio"), and Fresno Police Officer Ray Villalvazo ("Villalvazo") (collectively, "Defendants") move for summary judgment. Plaintiffs Rodney Muro ("Muro") and Panfilo M. Zamora ("Zamora") (collectively, "Plaintiffs") oppose the motion.
II. PROCEDURAL HISTORY
The complaint was filed on November 18, 2003. Doc. 1, Compl. The Defendants' answer was filed on May 3, 2004. Doc. 8, Answer. Defendants moved for summary judgment on April 28, 2006. Doc. 68, Mot. for Summ. J. Plaintiffs filed opposition on June 20, 2006. Doc. 77, Mem. in Opp. Defendants replied on June 29, 2006. Doc. 80, Reply. At the court's invitation, Defendants offered further briefing regarding qualified immunity, malicious prosecution, and municipal liability issues raised in the August 7, 2006, oral argument. Doc. 87, Brief. Plaintiffs replied on August 10, 2006. Doc. 89, Reply to Brief.III. BACKGROUND
A. Undisputed Facts
1. On November 20, 2002, Deputy Jeffrey Simpson ("Simpson") of the Fresno County Sheriff's Department received information that a day or two before, Sergeant Hansen from the Sheriff's Department had been to 4633 East Michigan Street ("the residence") in Fresno, to investigate charges against Javier Ortega of receiving stolen property, resisting arrest, and obstructing a peace officer. Doc. 78, Pls.' Resp. to Statement of Undisputed Facts [hereinafter, "RSUF"] #1 ( see Dep. of Jeffrey Simpson [hereinafter, "Simpson Dep."], 9:2-12, 11:14-18).
2. Simpson believed that when Sergeant Hansen was there, he was harassed by aggressive gang members from the residence and neighboring houses. Id., RSUF #2 ( see Simpson Dep., 9:15-22, 20:24-21:8.
3. Based on this information, Simpson conducted a premises history to determine if any gang members were associated with the residence and if there were any outstanding warrants for its residents. Id., RSUF #3 ( see Simpson Dep., 12:2-13).
4. The premises history showed Javier Ortega ("Ortega") and Plaintiff Muro were associated with the residence. Id., RSUF #4 ( see Simpson Dep., 12:19-20 and 17:1-7).
5. Simpson's subsequent search of the Records Management System ("RMS") database showed an outstanding warrant for Ortega's arrest. Id., RSUF #5 ( see Simpson Dep., 17:8-22).
6. The RMS listed several entries for Ortega, each listing the East Michigan residence as his home address. Id., RSUF #6 ( see Simpson Dep., 17:13-22).
7. Simpson called his Department's records unit and confirmed that the Ortega arrest warrant was still active. Id., RSUF #7 ( see Simpson Dep., 20:14-23).
8. Simpson also ran Ortega's driver's license through his Department's computer automated dispatch, which showed Ortega's address was 4633 East Michigan. Id., RSUF #8 ( see Simpson Dep., 17:19-18:18).
9. Simpson then informed his superior in the Multi-Agency Gang Enforcement Consortium ("MAGEC") task force, Sergeant John Jensen of the Fresno Police Department ("FPD"), that Simpson had located a person with a $150,000 arrest warrant for possession of stolen property and that Simpson wanted to serve the warrant. Id., RSUF #9 ( see Simpson Dep., 20:24-21:12).
10. Sergeant Jensen authorized Simpson to prepare a warrant package and arrange a briefing with other members of the MAGEC team in preparation for serving the warrant. Id., RSUF #10 ( see Decl. of John Jensen [hereinafter, "Jensen Decl."], ¶ 7).
11. Deputy Simpson held a briefing in the MAGEC office with all members of the Metro MAGEC Tac Team who were going to serve the arrest warrant. They included Sergeant Jensen, Defendant Villalvazo of the FPD, Defendant Cancio, also of the FPD, Officer James Watson ("Watson") of the California Highway Patrol ("CHP"), and Officer Tony Gates ("Gates"), also of the CHP. Id., RSUF #11 ( see Simpson Dep., 30:5-7, 31:25-32:4).
12. During this briefing, Simpson informed the MAGEC team officers regarding the 4633 East Michigan Street residents' harassment of Sergeant Hansen two days before and the active warrant for Ortega. Id., RSUF #12 ( see Simpson Dep., 31:4-13).
13. Deputy Simpson gave each officer a package that included a copy of Ortega's felony arrest warrant and photograph. Id., RSUF #13 ( see Simpson Dep., 37:17-21).
14. Around 6:10 p.m. on November 20, 2002, the MAGEC team went to the East Michigan Street residence to arrest Ortega, a possible Fresno Bulldog gang member. Id., RSUF #14 ( see Simpson Dep., 21:8-11).
15. Upon arrival, Villalvazo and Gates covered the rear of the residence. Id., RSUF #15.
16. Defendant Cancio covered the southwest front window. Id., RSUF #16.
17. Simpson, Watson, and Jensen made contact at the front door. Id., RSUF #17.
18. The front door of the residence had a main interior door and a plexiglass security door. Id., RSUF #18.
19. It was dark outside and the porch light was off. Id., RSUF #19.
20. Deputy Simpson rang the door bell and a Hispanic female who appeared to be in her thirties, opened the interior door but not the security door. Id., RSUF #20.
21. A male, later identified as Plaintiff Muro, came to the front door wearing a white Fresno State Bulldog jersey with red lettering and jeans. Id., RSUF #21.
22. Meanwhile, Gates and Villalvazo were in the backyard when they looked through a window and saw an individual inside the residence sitting on the couch whom they misidentified as Ortega. See id., RSUF #22.
23. The subject, later identified as Plaintiff Zamora, was wearing a red, long-sleeved, Fresno State Bulldog sweater and blue jeans. Id., RSUF #23.
24. Based on what Gates and Villalvazo observed, they believed Plaintiff Zamora's physical characteristics were consistent with Ortega's description. Id., RSUF #24 ( see Gates Dep., 8:21-9:9).
25. Gates and Villalvazo then announced over the radio that Ortega was inside the residence towards the back part of the house in a red sweatshirt. Id., RSUF #25 ( see Gates Dep., 27:3-20).
26. When Simpson saw Plaintiff Zamora, Simpson believed Plaintiff Zamora looked like Ortega. Id., RSUF #27 ( see Simpson Dep., 53:3-54:2).
27. Plaintiff Muro understood Simpson thought Plaintiff Zamora was Ortega. Id., RSUF #28 ( see Muro Dep., 55:21-56:9).
28. At or about the same time that Simpson saw Plaintiff Zamora, Gates communicated via radio to the other officers on the scene Gates' belief that Plaintiff Zamora was Ortega, was in the back room, and was moving towards the front of the residence. Id., RSUF #29 ( see Simpson Dep., 54:3-11).
29. Simpson believed Gates was referring to Ortega. Id., RSUF #30.
30. Once at the front of the house, Plaintiff Zamora was shutting the door when he heard one of the officers identify him as Ortega. Id., RSUF ##31-33 ( see Zamora Dep., 54:16-25, 56:23-57:5).
31. Plaintiff Muro also heard another officer behind Simpson say the officer thought Plaintiff Zamora was Ortega. Id., RSUF #34 ( see Muro Dep., 56:17-21, 57:23-58:10).
32. Given Plaintiff Zamora's actions at this point, Simpson still suspected that he was Ortega. Id., RSUF #35 ("disputed as irrelevant").
33. Plaintiff Zamora then re-opened the interior front door. Id., RSUF #36 ("disputed as irrelevant").
34. Plaintiff Zamora made no effort to communicate with the officers through the screen door and did not tell the officers that he was not Ortega or show them his ID at this time. Id., RSUF #37 ("[r]esponse: This asserted fact is disputed as inaccurate. After being handcuffed, Zamora told the officers that he was not Ortega.") (emphasis added).
35. Defendant Cancio did not see the initial interaction at the front door. As this interaction was happening at the front door between Simpson and the occupants of the home, Defendant Cancio, who was positioned on the west side of the house near a window heard the commotion at the front door and heard Simpson telling someone at the front door to move out of the way otherwise he would have to arrest him. Id., RSUF #38 [JUDGE: Plaintiffs "dispute this fact as inaccurate," but their explanation of why they dispute it doesn't really contradict it.]
36. Defendant Cancio then moved closer to the front door, where he saw Simpson standing approximately four feet from Plaintiff Muro, whose back was towards the front door. Simpson continued to tell Mr. Muro to move. Id., RSUF #39.
37. Plaintiffs Muro and Zamora were charged with violation of California Penal Code Sections 69, (resisting an executive officer by threats or violence), 148(a) (obstructing or resisting a peace officer), and 243(b) (battery on a peace officer).
38. Both Plaintiff Muro and Plaintiff Zamora pled nolo contendere to a violation of California Penal Code Section 148(a), a misdemeanor. Id., RSUF #68.
39. Plaintiff Muro waived his constitutional rights by writing his initials in several places on the Misdemeanor Advisement, Waiver of Rights, and Plea Form. Id., RSUF #69. As part of his plea bargain, Plaintiff Muro was given probation for six months, after which the charges were dismissed. Id., RSUF #70.
40. Plaintiff Zamora also pled nolo contendere to a violation of Section 148(a)(1). Id., RSUF #71.
41. Plaintiff Zamora signed the waiver of constitutional rights form acknowledging his plea had the same force and effect as a guilty plea. Id., RSUF #72.
42. If Plaintiffs had been arrested and/or convicted at any time during their probation period, the charges would not be dismissed and the convictions would stand. Id., RSUF #73.
43. Mr. Muro and Mr. Zamora freely and voluntarily waived their Constitutional rights in exchange for probation of six months at the end of which, the charges against then were dismissed. Id., RSUF #74.
B. Disputed Facts
1. Defendant Cancio testified in deposition that Plaintiff Muro was standing with his arms by his sides in a non-threatening way when Defendant Cancio came to the front of the house. Id., RSUF #39 (reply).
2. According to Cancio, Plaintiff Muro did not appear to be preventing Simpson from entering the residence, that Simpson could have walked past Plaintiff Muro into the residence, and that although Simpson was ordering Plaintiff Muro to "move or I'm going to arrest you," Simpson did not tell Plaintiff where to move on the narrow porch. Id.
3. Plaintiffs deny Plaintiff Muro intentionally blocked the doorway or obstructed the officers in any way. Id., RSUF #40 (reply).
4. Defendants allege Simpson then tried to arrest Plaintiff Muro by grasping Plaintiff Muro's wrist to handcuff him, but Plaintiff Muro violently resisted Simpson, slamming Simpson several times against an exterior wall of the residence. Id., RSUF ##41-43.
5. Plaintiffs deny Simpson ever attempted to arrest Plaintiff Muro in this way:
6. To the contrary, [Plaintiff] Muro testified Simpson pushed him towards the house's entry door. Simpson tried to punch [Plaintiff] Muro, but [Plaintiff] Muro moved his head. After [Defendant Cancio] . . . tasered [Plaintiff Muro], Simpson dragged [Plaintiff] Muro off of the porch by his leg. Simpson then turned [Plaintiff] Muro over and struck him on his back and legs with a baton multiple times.
7. At some point during the latter part of the incident, [Plaintiff] Muro was also maced by an officer. [Plaintiff] Muro was then handcuffed and taken to a patrol car. At no point during this incident did [Plaintiff] Muro resist or attack Simpson or another officer. Id., RSUF #42 (reply).
8. Defendant Cancio noticed Plaintiff Zamora was wearing a red Fresno State Bulldogs sweatshirt. Id., RSUF #47.
9. Defendants allege Defendant Cancio warned Plaintiff Muro to quit resisting or Defendant Cancio would taser Plaintiff Muro. Id., RSUF #48.
10. Plaintiffs deny Plaintiff Muro was resisting. Id., RSUF #48 (reply). Plaintiffs also allege the only warning Defendant Cancio gave Plaintiff Muro that Defendant Cancio was about to taser Plaintiff Muro was shouting the word "taser." Id.
11. Defendant Cancio conceded in deposition testimony that, while this was enough to put a fellow officer on notice that a taser was about to be deployed, a citizen might not understand the significance of this shorthand pronouncement. Id., RSUF #50 (reply).
12. Defendants allege "[Defendant] Cancio's laser sight was directly pointed at [Plaintiff] Muro as he stood in a fighting, bladed, and aggressive stance." Id., RSUF #51.
13. Plaintiffs deny Plaintiff Muro ever assumed such a stance at any point. Id., RSUF #52.
14. Defendants allege it was only after Plaintiff Muro disobeyed Defendant Cancio's orders to get down that Defendant Cancio tasered Plaintiff Muro. Id., RSUF ##53-54.
15. Plaintiffs deny Plaintiff Muro ever resisted the officers. Id., RSUF #53.
16. Defendants allege Plaintiff Muro did not fall to the ground immediately after Defendant Cancio tasered Plaintiff Muro, the usual reaction to being struck by taser darts and electrocuted, but stood motionless and balled up his fists. Id., RSUF ##55, 57.
17. This led Defendant Cancio to believe Plaintiff Muro was preparing to start resisting again. Id., RSUF ##57, 59.
18. Defendant Cancio warned Plaintiff Muro several more times to get down, but Plaintiff Muro ignored his warnings, so Defendant Cancio caused a second charge of electricity to be applied to Plaintiff Muro. Id., RSUF ##58, 59.
19. Plaintiffs deny Plaintiff Muro ever resisted any officer during the incident. Id., RSUF #55 (reply).
20. Plaintiffs allege Plaintiff Muro immediately fell to his backside on the porch after being tasered, and Simpson dragged him off the porch by his leg. Id., RSUF ##57, 58 (reply).
21. Defendants allege Plaintiff Muro continued to disobey Defendant Cancio's orders to lie down, leading Defendant Cancio to conclude the second charge was ineffective. Id., RSUF #61.
22. Plaintiff Muro dropped to one knee after the second charge, but tried to stand and balled his fists again. Id., RSUF #60.
23. Fearing Plaintiff Muro was going to attack him, Defendant Cancio backed away and re-loaded his taser. Id., RSUF #62.
24. Plaintiffs deny each of these allegations. Id., RSUF ##60-62 (replies).
25. Meanwhile, Jensen and Watson brought Plaintiff Zamora out of the residence. Id., RSUF #63.
26. Defendants allege Defendant Villalvazo, having come around to the front of the house from the back, saw and heard Simpson tell Plaintiff Muro to lie down on his stomach, but Plaintiff Muro kicked his leg out towards Simpson and tried to rise to his feet. Id., RSUF #65.
27. Plaintiffs deny Plaintiff Muro ever resisted the officers. Id., RSUF #65 (reply).
28. With his baton, Simpson struck Plaintiff Muro on the leg. Id., RSUF #66 ("[r]esponse: This fact is disputed only as incomplete, since [Plaintiff] Muro was hit not only on the leg but [on] his back as well").
29. Defendants allege: "[a]t that point, [Plaintiff] Muro complied and la[y] down on his stomach and [Defendant] Villalvazo placed handcuffs on him." Id., RSUF #67.
30. Plaintiffs deny Plaintiff Muro ever resisted the officers. Id., RSUF #67 (reply).
31. Plaintiffs respond to each of RSUF ##68-74 as follows:
The primary factual flaw in the moving [D]efendants' argument is that [Plaintiffs] Muro and Zamora were never convicted of the Penal Code § 148(a)(1) charges to which they pled no contest on February 19, 2004. Instead, as part of a conditional plea, which did not include any fine, liberty restriction, or any other obligation, Muro and Zamora were entitled to have their charges dismissed after 6 months if they either were not arrested or convicted of another charge in the intervening time. In accordance with the conditional plea, on August 20, 2004, Muro's and Zamora's 148(a)(1) charges were dismissed. Thus, Muro and Zamora were never convicted of any criminal charge; no judgment of conviction was ever issued in either of their cases. [citations]Id., RSUF ##68-74 (replies).
32. The arrest warrant was valid and the officers had the legal authority to serve the warrant at the residence. Id., RSUF #75 (reply: "denied as inaccurate . . . the officers only had the right to serve the warrant if they had reliable information that the subject actually lived there. Moreover, due to the Fresno Police Department's regrettable policies regarding validating warrants and keeping more expansive records, repeated service attempts are made to the same incorrect address.")
33. Ortega's wanted persons photograph attached to the Warrant Abstract and the post-incident photographs of Mr. Zamora depict remarkable similarities between the two in terms of their physical appearance. Id., RSUF #77 (reply: "disputed as inaccurate").
34. A color representative of the Bulldog gang is red. Id., RSUF #78.
35. Plaintiff Muro acknowledged the Fresno State Bulldog jersey he was wearing is also worn by members of the Bulldog gang. Id., RSUF #79.
36. Defendants allege when Defendant Villalvazo approached the front of the house, he observed a struggle between Simpson and Plaintiff Muro; taser wires protruded from Plaintiff Muro. Id., RSUF #88. This reasonably led Defendant Villalvazo to believe the officers were attempting to place [Plaintiff] Muro into custody because he was under arrest and was resisting. Id., RSUF #89.
37. Plaintiffs reply to both RSUF ##88-89 as follows:
This asserted fact is irrelevant, and inaccurate, since neither [Plaintiff] Muro nor [Plaintiff] Zamora resisted or [was] aggressive as to any officer during the incident. Clearly, no force can reasonably be used on such a person.Id., RSUF ##88, 89 (replies).
38. After Plaintiff Muro was on his stomach, Defendant Villalvazo placed handcuffs on him. Id., RSUF #90 ("[r]esponse: This fact is disputed as incomplete, since [Defendant] Villalvazo also used OC spray on Muro at some point during the incident.")
IV. LEGAL STANDARD
Summary judgment is warranted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); Cal. v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). Therefore, to defeat a motion for summary judgment, the non-moving party must show (1) that a genuine factual issue exists and (2) that this factual issue is material. Id. A genuine issue of fact exists when the non-moving party produces evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252-56 (1986). Facts are "material" if they "might affect the outcome of the suit under the governing law." Campbell, 138 F.3d at 782 ( quoting Anderson, 477 U.S. at 248).
The non-moving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001). The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex Corp. v. Catrell, 477 U.S. 317, 322-23 (1986).
The more implausible the claim or defense asserted by the non-moving party, the more persuasive its evidence must be to avoid summary judgment. See United States ex rel. Anderson v. N. Telecom, Inc., 52 F.3d 810, 815 (9th Cir. 1996). Nevertheless, the evidence must be viewed in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255. A court's role on summary judgment is not to weigh evidence or resolve issues; rather, it is to determine whether there is a genuine issue for trial. See Abdul-Jabbar v. G.M. Corp., 85 F.3d 407, 410 (9th Cir. 1996).
V. ANALYSIS
Title 42, Section 1983, of the United States Code creates a cause of action against a person who, acting under color of state law, deprives another of rights guaranteed under the Constitution. Section 1983 does not create any substantive rights; rather it is the vehicle whereby plaintiffs can challenge actions by governmental officials. To prove a case under section 1983, Plaintiffs must demonstrate that (1) the action occurred "under color of state law" and (2) the action resulted in the deprivation of a constitutional right or federal statutory right. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
A. First Amendment Claims
At oral argument, Plaintiffs conceded that they have no compensable First amendment civil rights claim. The motion for summary judgment is GRANTED as to Plaintiffs' First Amendment claim.
B. Malicious Prosecution
Plaintiffs allege under Title 42, Section 1983, of the United States Code, that Defendants Cancio and Villalvazo falsely reported Plaintiffs "resisted and attacked the officers" during the November 20, 2002, incident. Doc. 77-1, Mem. in Opp., 15; id., 2 ("[Plaintiffs] Muro and Zamora allege claims under [Section] 1983 for . . . malicious prosecution based on the Fourth Amendment"); see also id., 24 ("both [Defendants] Cancio and Villalvazo wrote reports that, under [Plaintiffs'] versions of events, are false but yet were submitted as documentation of the existence of probable cause"). Plaintiffs allege Defendants submitted these reports to the Fresno County District Attorney intending they be used to support criminal charges against Plaintiffs, and they were in fact so used. Doc. 78, RSUF, 56.
At oral argument conducted August 7, 2006, Plaintiffs conceded neither Defendant Cancio nor Defendant Villalvazo wrote reports of the incident which indicated Plaintiff Zamora resisted the officers, and summary judgment was GRANTED in favor of Defendants regarding Plaintiff Zamora's malicious prosecution claim. Plaintiff Muro's Section 1983 malicious prosecution claim against Defendants Cancio and Villalvazo is still before the court.
In a criminal context, the tort of malicious prosecution consists of initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause, where the prosecution is terminated in favor of the accused. 5 Witkin, Summ. of Cal. Law, Torts § 475. Under California law, the elements of a malicious prosecution claim are: the underlying prosecution, (1) was commenced by or at the direction of the Defendants and was pursued to a legal termination in Plaintiff's favor; (2) was brought without probable cause; and (3) was initiated with malice. Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006) (citations and internal quotation marks omitted).
1. Whether Plaintiff Muro's Malicious Prosecution Claim is Cognizable under Section 1983
A Section 1983 malicious prosecution plaintiff must prove that defendants acted for the purpose of depriving him of a specific constitutional right. Awabdy v. City of Adelanto, 368 F.3d 1062, 1069 (9th Cir. 2004).
Plaintiff Muro alleges "malicious prosecution based on the Fourth Amendment." Doc. 77-1, Mem. in Opp., 2. Plaintiff Muro's malicious prosecution claim invokes the Fourth Amendment right not to be arrested without probable cause and thereafter wrongfully prosecuted. Because Plaintiff Muro was arrested pursuant to the charges for which, he claims, he was later maliciously prosecuted and required to hire a lawyer and go to court to defend those charges. Plaintiff Muro was also required to appear before the court to face the charges, and his failure to do so would have resulted in his arrest. Both of these facts implicate the Fourth Amendment sufficiently to render Plaintiff Muro's malicious prosecution claim cognizable under Section 1983.
2. Plaintiff Muro's Nolo Contendere Plea
Plaintiffs were charged with one violation each of California Penal Code Section 69 (obstructing or resisting executive officers in performance of their duties by threats or violence) (felony); 148(a) (resisting, delaying, or obstructing an officer) (misdemeanor); and 243(b) (battery on a peace officer) (felony). Doc. 78, RSUF #68. Plaintiffs pled nolo contendere to the Section 148(a) misdemeanor charges, id., and the Section 69 and 243(b) felony charges were dismissed, Doc. 77, Mem. in Opp., Ex. 3, p. 6. Because Plaintiffs were not arrested or convicted for any charges in the following six months, they were then allowed to withdraw their nolo contendere plea to the Section 148(a) charges, which were dismissed. Id.; Doc. 78, RSUF #68 (reply).
To be considered "favorable" for purposes of a malicious prosecution claim, a termination in the underlying action must reflect the merits of the action and plaintiff's innocence of the misconduct alleged in the lawsuit. The key is whether the termination reflects on the underlying defendant's innocence. If the resolution of the underlying litigation leaves some doubt as to the defendant's innocence or liability, it is not a favorable termination, and bars that party from bringing a malicious prosecution action against the underlying plaintiff. Favorable termination is an essential element of the tort of malicious prosecution, and it is strictly enforced. StaffPro, Inc. v. Elite Show Services, Inc., 136 Cal.App.4th 1392, 1399-1400 (Cal.App. 4 Dist., 2006) (emphasis added) (citations and internal quotation marks omitted). See also Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) ("[a]n individual seeking to bring a malicious prosecution claim must generally establish that the prior proceedings terminated in such a manner as to indicate his innocence").
a. The Section 69 and Section 243(b) Charges
Under California law, the favorable termination which is essential to plaintiff in a malicious prosecution action cannot be based on the dismissal of the criminal charges remaining after the defendant in a criminal proceeding has entered a plea of nolo contendere to one or more of the charges in the accusatory pleading pursuant to a plea bargain. Cote v. Henderson, 218 Cal.App.3d 796, 804 (Cal.App. 2 Dist., 1990). Here, the California Penal Code Section 69 and Section 243(b) charges against Plaintiffs were dismissed outright based on the Plaintiffs' pleas of nolo contendere. The dismissals of these charges arguably satisfy the favorable-termination element of Plaintiff Muro's malicious prosecution action. However, the dismissals were part of a package deal as to all three charges.
b. The Section 148(a) Charges
Under California law, a plea of nolo contendere is considered the same as a plea of guilty. Upon a plea of nolo contendere, the court shall find defendant guilty, and its legal effect is the same as a plea of guilty for all purposes. It negates the element of a favorable termination, which is a prerequisite to stating a cause of action for malicious prosecution. Cote, 218 Cal.App.3d at 803 (Cal.App. 2 Dist., 1990) ( citing Cal. Pen. Code § 1016(3)); see also 5 Witkin, Summ. of Cal. Law, Torts § 478 (10th ed. 2005). Here, Plaintiff Muro's conditional nolo contendere plea is not inconsistent with his guilt, and is not a favorable-termination. See Awabdy, 368 F.3d at 1068.
Plaintiffs argue:
because the record shows [Plaintiffs] were not convicted, did not admit facts harmful to their civil rights claims, and, at least arguably, achieved a favorable termination to their criminal cases, their . . . malicious prosecution cases should proceed to trial.
Doc. 89, Pls.' Further Briefing, 4-5. This is not accurate.
A nolo contendere plea is equivalent to a guilty plea for all purposes under California law. Cal. Pen. Code § 1016(3). A guilty plea admits every element of the charged offense. People v. Watts, 131 Cal.App.4th 589, 594-95 (Cal.App. 5 Dist. 2005). Here, the plea forms show that each Defendant admitted facts in the police report under People v. West to provide a factual basis for their nolo pleas. For six months Plaintiffs stood convicted of Pen. C. § 148(a). This is not a favorable termination. Plaintiffs could have negotiated to let the charges continue against them for six months, whereafter the charges could have been dismissed, but did not. Instead they admitted the truth of the 148(a) charge. Plaintiff Muro cannot maintain a malicious prosecution claim.
c. Section 1192.5
Plaintiffs argue their nolo contendere pleas were withdrawn, and California Penal Code Section 1192.5 bars introduction of their pleas as evidence. Doc. 92, Withdrawal of Stipulation, 1-2.
The relevant portion of Section 1192.5 reads:
If the plea is withdrawn or deemed withdrawn, it may not be received in evidence in any criminal, civil, or special action or proceeding of any nature, including proceedings before agencies, commissions, boards, and tribunals.
Plaintiffs were allowed to withdraw their pleas only after satisfying the conditions of obeying the law for six months. Even if Muro was under a pre-existing duty to obey the law, he accepted criminal responsibility for six months subject to a condition of good behavior, during which period he stood convicted of Pen. C. § 148(a). This is not an unconditionally favorable termination, totally consistent with innocence.
3. Presumption of Prosecutorial Independence
Even assuming, arguendo, Plaintiff Muro can assert a malicious prosecution claim against Cancio and Villalvazo, he still must overcome the presumption of prosecutorial independence. The filing of a criminal complaint immunizes investigating officers from damages suffered thereafter because it is presumed the prosecutor who filed the complaint exercised independent judgment in determining probable cause for an accused's arrest existed at that time. Newman v. County of Orange, ___ F.3d ___, 2006 WL 2241584, _______ (9th Cir. 2006) ( citing Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981)). If charges are filed, Smiddy protects the officers unless evidence shows that officers interfered with the prosecutor's judgment in some way, by omitting relevant information, by including false information, or by pressuring the prosecutor to file charges. A suspect's account of an incident, by itself, is unlikely to influence a prosecutor's decision, and thus it cannot, by itself, serve as evidence that officers interfered with the prosecutor's decision. Newman, ___ F.3d ___, 2006 WL 2241584, _______:
We are hard-pressed to conceive of a malicious prosecution case in which the plaintiff's version of events would not conflict with the arresting officer's account. In virtually every case, then, the presumption would be rebutted, and it would never limit the liability of the officer, contrary to its stated purpose.Newman, ___ F.3d ___, 2006 WL 2241584, _______.
Plaintiffs argue Hartman v. Moore, 126 S.Ct. 1695 (2006), relieved Plaintiffs of the burden to produce evidence other than their own account of events to avoid summary judgment. Doc. 89, Pls.' Further Briefing, 5. Plaintiffs misread Hartman. Hartman only holds that absence of probable cause is an element of a Bivens retaliatory prosecution claim that must be pleaded and proved. Hartman, 126 S.Ct. at 1707 (a plaintiff . . . must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that would not have been initiated without his urging). Hartman did not change the elements of malicious prosecution under California law. This helps to explain why Newman "fail[ed] to even cite" Hartman. Doc. 89, Pls.' Further Briefing, 5.
Plaintiffs argue:
Even if . . . Newman is construed to require a plaintiff to present more than his own contradictory testimony to overcome the presumption of prosecutorial independence, the record before the [c]ourt contains substantial evidence in this regard.Id. Plaintiffs adduce "the testimony of Reyna Muro, their expert witnesses, photographs of the incident scene indicating the officers' varied account[s] are implausible, and . . . the contradictory accounts of the [D]efendant officers themselves" as additional corroborating evidence. Id., 5-6.
a. The Defendant Officers' Reports
Plaintiffs allege Cancio and Villalvazo submitted false reports of the incident to the prosecutor to influence the prosecutor to file criminal charges against Plaintiff Muro. Doc. 77-1, Mem. in Opp., 33. Plaintiffs claim the false reports were submitted to the prosecutor as part of the complaint filing process. Technically, Plaintiffs do not refer to specific evidence that confirms the Defendant officers' reports were relied on by the prosecutor who filed the complaints charging Plaintiffs.
b. The Defendant Officers' Depositions
As evidence that Defendants Cancio and Villalvazo improperly influenced the prosecutor to file criminal charges against Plaintiffs, Plaintiffs adduce the deposition testimony of these officers, which Plaintiffs allege "wildly diverg[es]," Doc. 78, RSUF, 56, from their reports of the incident. Doc. 89, Pls.' Further Briefing, 6 ("the contradictory accounts of the [D]efendant officers themselves, not only in their reports, but in their depositions").
The depositions could not have influenced the prosecutor to file criminal charges against Plaintiffs, because they were not taken until after the criminal charges were dismissed. They are not by themselves evidence of improper influence by Cancio or Villalvazo. Newman, ___ F.3d ___, 2006 WL 2241584, _______ ( citing Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986)). If Cancio's and Villalvazo's deposition accounts of the incident differ from their reports, this could constitute evidence that they did not accurately describe the incident in the reports. See, e.g., Borunda v. Richmond, 885 F.2d 1384, 1390 n. 6 (9th Cir. 1988). These contradictory facts are enough to raise question whether the information the prosecutor received was intentionally false, however, because the nolo pleas do not unconditionally establish Muro's innocence, Defendant Officers are entitled to summary judgment on the malicious prosecution claim.
C. Excessive Force
The Fourth Amendment does not prohibit a police officer's use of reasonable force during an arrest. The first inquiry in analyzing excessive force claims is whether the officers' actions were objectively reasonable in light of the facts and circumstances confronting them. The facts underlying an excessive force claim are considered from the perspective of a reasonable officer on the scene, without regard to the arresting officer's subjective motivation for using force. Whether a particular use of force was objectively reasonable depends on several factors, including the severity of the crime that prompted the use of force, the threat posed by a suspect to the police or to others, and whether the suspect was resisting arrest. Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006).
1. Defendant Cancio
a. Actions taken toward Plaintiff Muro
It is undisputed that Defendant Cancio tasered Plaintiff Muro, temporarily paralyzing him and causing him to fall to the ground. Doc. 78, RSUF ##48-54.
According to Defendants, Plaintiff Muro obstructed Defendant Simpson's attempt to serve a lawful arrest warrant by blocking the front doorway of the residence, preventing Defendant Simpson from entering. Doc. 68, Mot. for Summ. J., 4. Plaintiff Muro refused Defendant Simpson's request to allow Defendant Simpson entry to the residence, and ignored Defendant Simpson's warning that he would arrest Plaintiff Muro if Plaintiff Muro did not comply. Id. Plaintiff Muro violently resisted Defendant Simpson's subsequent attempt to arrest Plaintiff Muro. Id. Defendant Cancio, coming to the aid of Defendant Simpson, warned Plaintiff Muro to stop resisting or Defendant Cancio would taser Plaintiff Muro. Id., 5. When Plaintiff Muro ignored Defendant Cancio's order to stop resisting, Defendant Cancio tasered Plaintiff Muro. Id.
Plaintiff Muro alleges he never resisted the officers; he tried to comply with Defendant Simpson's request to allow him entry to the residence but the porch was too narrow to allow him to do so; Defendant Simpson attacked him without reason; and Defendant Cancio unreasonably tasered him when he was not resisting. See Fontana v. Haskin, 262 F.3d 871, 880 (9th Cir. 2001) ("where there is no need for force, any force used is constitutionally unreasonable") (emphasis in original). Doc. 1, Compl., ¶ 9; Doc. 78, RSUF ##39-45.
There is a genuine issue of material fact whether Plaintiff Muro was resisting arrest when Defendant Cancio tasered Plaintiff Muro, and thus whether Defendant Cancio's use of force against Plaintiff Muro was necessary and reasonable under the circumstances. Cancio's motion as to Muro is DENIED.
b. Against Plaintiff Zamora
The complaint does not allege Defendant Cancio used any force against Plaintiff Zamora. Doc. 1, Compl., ¶¶ 11-12. The complaint alleges while Defendant Cancio tasered Plaintiff Muro, other MAGEC officers "yanked [Plaintiff Zamora] . . . out of the house, off the porch, and thr[ew] [him] on to his knees. One of the defendant officers then grabbed [P]laintiff Zamora's arm and twisted it behind his back and put him in a choke hold." Id., ¶ 11. The allegation that Defendant Cancio was present during the alleged application of force against Plaintiff Zamora is not sufficient to raise an issue of material fact regarding any Section 1983 liability he may have for the application of force on Plaintiff Zamora. See Jones v. Williams, 297 F.3d 930, 939 (9th Cir. 2002) ("[w]e reject the idea that mere presence at a search or membership in a group, without personal involvement in and a causal connection to the unlawful act, can create liability under [S]ection 1983"). Summary judgment is GRANTED in favor of Defendant Cancio against Plaintiff Zamora regarding Section 1983 liability for excessive force.
2. Defendant Villalvazo
a. Actions taken toward Plaintiff Muro
The complaint does not allege Defendant Villalvazo used any force on Plaintiff Muro. Defendant Villalvazo conceded in deposition testimony that he used his oleoresin capsicum spray on Plaintiff Muro when Plaintiff Muro was prone on the ground after being tasered by Defendant Cancio, but claims it malfunctioned. Doc. 77-1, Mem. in Opp., 16 ( citing Villalvazo Dep., 25, 34); see also Doc. 78, RSUF #90. Defendant Villalvazo also handcuffed Plaintiff Muro. Id. ( citing Villalvazo Dep., 31-32); see also Doc. 78, RSUF #90.
The Fourth Amendment does not prohibit a police officer's use of reasonable force during an arrest. The first inquiry in analyzing excessive force claims is whether the officers' actions were objectively reasonable in light of the facts and circumstances confronting them. The facts underlying an excessive force claim are considered from the perspective of a reasonable officer on the scene, without regard to the arresting officer's subjective motivation for using force. Whether a particular use of force was objectively reasonable depends on several factors, including the severity of the crime that prompted the use of force, the threat posed by a suspect to the police or to others, and whether the suspect was resisting arrest. Tatum v. City and County of San Francisco, 441 F.3d 1090, 1095 (9th Cir. 2006).
LaLonde v. City of Riverside, 204 F.3d 947 (9th Cir. 2000), holds when an arrestee surrenders and is helpless, "any reasonable officer would know that a continued use of [pepper spray] . . . constitutes excessive force." LaLonde, 204 F.3d at 960-61.
Plaintiffs have raised an issue of material fact regarding whether there was a necessity for Defendant Villalvazo to use force and if he used reasonable force in spraying, handcuffing, and arresting Plaintiff Muro. Plaintiffs claim Plaintiff Muro never resisted the officers, and was rendered helpless by Defendant Cancio's taser when he was OC sprayed by Defendant Villalvazo. Defendant Villalvazo's motion for summary judgment against Plaintiff Muro on the excessive force claim is DENIED.
b. Actions taken toward Plaintiff Zamora
The complaint does not allege Defendant Villalvazo used any force against Plaintiff Zamora. Doc. 1, Compl., ¶¶ 11-12. Plaintiffs argue:
[Defendants'] presence, acquiescence, and proximity . . . when, according to Muro and Zamora, blatantly unreasonable uses of force were applied, i.e., Simpson's baton strikes to a prone, face down Muro and Watson's choke hold on Zamora, subjects them to liability for those uses of force [citations].
Doc. 77-1, Mem. in Opp., 28.
This argument has already been rejected. See Jones v. Williams, 297 F.3d 930, 939 (9th Cir. 2002) ("[w]e reject the idea that mere presence at a search or membership in a group, without personal involvement in and a causal connection to the unlawful act, can create liability under [S]ection 1983"). Summary judgment in favor of Defendant Villalvazo against Plaintiff Zamora is GRANTED.
D. Qualified Immunity
Defendant Officers Cancio and Villalvazo claim entitlement to qualified immunity. A claim of qualified immunity ordinarily involves a two-step inquiry: (1) the threshold question, taken in the light most favorable to the party asserting the injury, do the facts alleged show the Officers' conduct violated a constitutional right? Saucier v. Katz, 533 U.S. 194, 201 (2001); (2) if a violation could be made out on a favorable view of the parties' submissions, the next sequential step is to ask whether the right was clearly established." Id.
Defendants argue that in an excessive force case, a police officer is entitled to qualified immunity where, under the totality of circumstances, the Officers' actions were objectively reasonable. Graham v. Connor, 490 U.S. 386, 387 (1989). Objective reasonableness is judged from the perspective of a reasonable officer on the scene, allowing for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. Id. at 387.
Here, if Mr. Muro's version of the events is found true, and the trier of fact finds that he did not resist, attempted to cooperate, and was neither obstructive nor violent, the use of force would be unreasonable and qualified immunity unavailable under a theory of mistake. See, Saucier v. Katz, 533 U.S. at 205-206. The same analysis applies to Officer Villalvazo in attempting to spray and handcuff Mr. Muro. The disputed facts do not permit a reasonableness determination to be made as a matter of law and whether Mr. Muro was combative is in dispute.
The Defendants' motions for summary judgment on the basis of qualified immunity are DENIED.
E. Monell Liability — City of Fresno
Plaintiffs assert two grounds of municipal liability against the City:
First, the practices of the Fresno Police Department permit a warrant containing inaccurate address information to be repeatedly re-served at the same location [citation], thus reflecting a deliberate indifference to the privacy rights of persons to be secure in their homes under the Fourth Amendment. . . . [A] warrant service team does not find out whether the address information contained in a warrant is incorrect, even if multiple prior unsuccessful services have already been attempted at the same location, until the team actually makes yet another service attempt at that residence. [citation]
Doc. 77-1, Mem. in Opp., 33-34.
The second asserted ground of liability is Plaintiffs' claim that the City "does not prohibit or disapprove of choke holds as part of its use-of-force policy." Id., 34. "This lack of a policy clearly contributed to and was a moving force behind the Fresno police officers on scene condoning the choke hold applied by [Defendant] Watson." Id. (emphasis added).
1. Lack of Warrant Updating System
Liability may attach to a municipality only where the municipality itself causes the constitutional violation through execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy. A municipal "policy" exists when a deliberate choice to follow a course of action is made from among various alternatives by the official or officials responsible for establishing final policy with respect to the subject matter in question. There are three ways to show a policy or custom of a municipality: (1) by showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity; (2) by showing that the decision-making official was, as a matter of state law, a final policymaking authority whose edicts or acts may fairly be said to represent official policy in the area of decision; or (3) by showing that an official with final policymaking authority either delegated that authority to, or ratified the decision of, a subordinate. A municipal policy may be inferred from widespread practices or evidence of repeated constitutional violations for which the errant municipal officers were not discharged or reprimanded. Menotti v. City of Seattle, 409 F.3d 1113, 1147 (9th Cir. 2005).
Plaintiffs cite the deposition testimony of FPD Sgt. Jensen, who testified the lack of a warrant updating system frequently caused multiple warrant service attempts to be made at the wrong residences. See Doc. 78, RSUF, 44-45. Sergeant Jensen's testimony raises a genuine issue of material fact regarding whether there existed a "longstanding practice or custom which constitutes the standard operating procedure of" the City, without which the warrant service on Ortega would not have been attempted at the residence. Menotti, 409 F.3d at 1147.
2. City of Fresno — Choke-Hold Policy
Plaintiffs argue the City's alleged failure to "prohibit or disapprove of choke holds as part of its use of force policy . . . clearly contributed to and was a moving force behind the Fresno police officers on scene condoning the choke hold applied by [Defendant] Watson." Doc. 77-1, Mem. in Opp., 34. Plaintiff's expert testified that the City's use of force policies meet P.O.S.T. standards. There is no evidence the City has a separate choke-hold policy.
It is undisputed that Defendant Watson is a CHP officer, not a FPD officer. Doc. 78, RSUF #11; Doc. 1, Compl., ¶ 13. To sustain a Section 1983 action against a municipality, Plaintiff must demonstrate that a City policy or custom has caused him injury. Nunez v. City of Los Angeles, 147 F.3d 867, 874 n. 10 (9th Cir. 1998) ( citing Monell v. Dept. of Social Services, 436 U.S. 658, 691-94 (1978)). Plaintiffs do not allege how any policy of the City could have prevented Defendant Watson, a CHP officer, from applying a choke hold to Plaintiff Zamora. Nor do Plaintiffs allege how the FPD officers' alleged condonation of Defendant Watson's choke hold caused any part of Plaintiff Zamora's injury.
Summary judgment regarding Plaintiffs' Monell allegations against the City concerning a lack of a policy for updating stale or erroneous warrant information in the light of unsuccessful service attempts is DENIED. Summary judgment regarding Plaintiffs' Monell claims regarding the lack of a choke-hold policy is GRANTED in favor of Defendants against Plaintiffs.
F. False Arrest
Plaintiffs allege Defendants "violated [P]laintiffs' rights under the Fourth Amendment to be free from . . . false arrests." Doc. 1, Compl., ¶ 13.
False imprisonment involves the intentional confinement of another against the person's will. The elements are (1) non-consensual, intentional confinement of a person, (2) without lawful privilege, (3) for an appreciable period of time, however brief. 5 Witkin, Summ. of Cal. Law, Torts § 426 (10th ed. 2005) ( citing Easton v. Sutter Coast Hosp., 80 Cal.App.4th 485, 496 (Cal.App. 1 Dist. 2000)). False imprisonment and false arrest are not separate torts. Id.
A peace officer may arrest a person without a warrant whenever (1) the officer has probable cause to believe the person to be arrested has committed a public offense in the officer's presence, (2) the person arrested has committed a felony, though not in the officer's presence, (3) the officer has probable cause to believe the person to be arrested has committed a felony, whether or not a felony, in fact, has been committed. Cal. Pen. Code Section 836(a)(1)-(3).
Defendants argue:
[Defendant] Simpson initially arrested [Plaintiff] Muro for a violation of [California Penal Code Section] 148(a)(1) for willfully resisting, delaying, or obstructing a peace officer in the discharge or attempt to discharge [ sic] his duties. After [Defendant] Simpson informed [Plaintiff] Muro he was under arrest, [Defendant] Cancio observed [Defendant] Simpson was having difficulty trying to handcuff [Plaintiff] Muro to place him in custody. [Defendant] Cancio saw [Plaintiff] Muro struggling with [Defendant] Simpson and reasonably believed [Plaintiff] Muro was resisting [Defendant] Simpson in the performance of his duties by using force and violence, a felony under [California Penal Code Section] 69. During the course of this struggle, [Defendant] Cancio reasonably believed [Plaintiff] Muro committed a battery on [Defendant] Simpson by slamming him into a wall, in violation of [California Penal Code Section] 243(b). [Defendant] Cancio's assistance in effectuating the arrest occurred only after [Defendant] Simpson had already instructed [Plaintiff] Muro that he was under arrest. [¶] Under [California Penal Code Section] 836(a)(1)-(3), [Defendant] Cancio was reasonably in his belief that based on his observations it was probable [Plaintiff] Muro had committed a crime in his presence. Specifically, it appeared [Plaintiff] Muro used violence against [Defendant] Simpson, a felony, whether or not a felony had actually been committed. [¶] [Defendant] Villalvazo's only participation in placing [Plaintiff] Muro in custody was that he put handcuffs on [Plaintiff] Muro. [When] [Defendant] Villalvazo placed handcuffs on [Plaintiff] Muro, [Defendant] Villalvazo reasonably believed [Plaintiff] Muro was lawfully under arrest.
Doc. 68, Mot. for Summ. J., 8. Defendants further state: "[i]t is undisputed that neither [Defendant] Cancio nor [Defendant] Villalvazo played any role in effectuating the arrest of Plaintiff Zamora. Thus, neither officer . . . can be held liable for the alleged wrongful arrest of [Plaintiff] Zamora." Id.
Given the dispute over the circumstances of Muro's claimed resistance (defendants) or cooperation with the Officers, the material facts surrounding the probable cause for his arrest are in dispute. Defendants' motion as to Muro as to the false arrest claim is DENIED. There is no evidence that either Defendant participated in Zamora's arrest. Defendants' motion for the alleged false arrest of Zamora is GRANTED.
G. Zamora Claims of Emotional Distress, Reputation Damages and Impaired Familial and Interpersonal Relations
Plaintiff Zamora admitted in his deposition that he does not claim emotional distress or related damages to reputation or interpersonal or familial relations. Defendant's motion for summary judgment as to these damages claims is GRANTED.
VI. CONCLUSION
For all the reasons stated above, Defendant Cancio and Defendant Villalvazo's motions for summary judgment are:
1. As to Plaintiffs' First Amendment claim, GRANTED;
2. As to the malicious prosecution claim, GRANTED as to both Defendants against both Plaintiffs;
3. As to the Fourth Amendment excessive force claim of Plaintiff, Muro; DENIED as to Defendant Cancio; DENIED as to Defendant Villalvazo;
4. As to the Fourth Amendment excessive force claim of Plaintiff Zamora, GRANTED as to Defendant Cancio, GRANTED as to Defendant Villalvazo;
5. As to Plaintiff Muro's Fourth Amendment false arrest claim, DENIED as to Officer Cancio, DENIED as to Defendant Villalvazo;
6. As to Plaintiff Zamora's Fourth Amendment false arrest claim, GRANTED as to Officer Cancio, GRANTED as to Defendant Villalvazo;
7. As to Plaintiffs' qualified immunity claims, DENIED as to Defendant Cancio, DENIED as to Defendant Villalvazo;
8. As to the Monell liability claims against the City of Fresno:
a. As to the lack of arrest warrant updating system, DENIED as to the City of Fresno;
b. As to the alleged choke-hold policy, GRANTED as to Defendant City;
9. As to Plaintiff Zamora's claims of emotional distress, reputation, damages and impaired familial and interpersonal relations damages, GRANTED as to Defendant Cancio, GRANTED as to Defendant Villalvazo.
SO ORDERED