Opinion
D071965
04-12-2018
THE PEOPLE, Plaintiff and Respondent, v. DAVID JOHN ARNOLD, Defendant and Appellant.
Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD266057) APPEAL from a judgment of the Superior Court of San Diego County, Eugenia Eyherabide, Judge. Affirmed. Theresa Osterman Stevenson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Annie Featherman Fraser, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
Defendant David John Arnold appeals from a judgment of conviction entered after a jury found him guilty of two counts of resisting an executive officer. On appeal, Arnold contends that the trial court erred in admitting a recording of a jail telephone call that Arnold had with another individual in which Arnold admitted that he "did all of it." According to Arnold, he had other criminal cases pending against him at the time, and his statement could have referred to the other cases, and not to the present case. Arnold contends that the admission in evidence of the statement may have improperly misled or confused the jury, and ultimately violated his rights to due process, confrontation, and a fair trial. Arnold argues in the alternative that the court should have also admitted the contents of other jail calls in which Arnold denied guilt, under the rule of completeness.
Arnold further contends that the trial court erred in not instructing the jury, sua sponte, on the lesser included offenses of simple assault and simple battery.
Finally, Arnold requests that this court independently review the transcript and the records that the trial court reviewed during its in camera Pitchess hearing, to determine whether the trial court properly denied his motion for discovery of three police officers' personnel files.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We conclude that Arnold's arguments on appeal are without merit. Further, based on our review of the materials that the trial court reviewed pursuant to Arnold's Pitchess motion, we conclude that the trial court did not err in determining that there are no discoverable materials in the officers' personnel files. For these reasons, we affirm the judgment.
II.
BACKGROUND
A. Factual background
On March 6, 2016, at approximately 10:40 p.m., a number of witnesses called 911 to report a disturbance in the Ocean Beach neighborhood of San Diego. One witness testified that he first heard yelling outside of his residence and saw a man he believed to be a transient with several bags of cans and bottles peddling a bicycle down the street. The witness saw Arnold approach the man on the bicycle, scream and holler at him, and then begin to punch him. Arnold punched the man at least five times. The man on the bicycle screamed for help as Arnold and the man wrestled for a short time. The man was ultimately able to get away from Arnold on the bicycle.
A different witness saw some of the interaction between Arnold and the man who appeared to be a transient. She believed that the transient was hitting Arnold.
After the bicyclist rode away, Arnold began to pound on the hood of some cars that were stopped at the intersection. He got on top of the hood of one car and began jumping up and down on it. The driver put the car in reverse and began to back up. Arnold "slid down the front hood and was still holding on and getting dragged," but eventually let go. Arnold then began walking down the sidewalk, yelling and screaming. He seemed not to be screaming words, and was not making any sense.
San Diego Police Officer Dominic Cattera responded to a dispatch call regarding a man behaving in a violent manner in Ocean Beach. When Cattera arrived at the scene, some people flagged him down and pointed down the street. After driving down a dark alley, Cattera saw Arnold on the ground, holding a backpack. Arnold stood up and yelled at Cattera, "Hey, you pig." Arnold sounded agitated, aggressive, and angry.
Cattera made a U-turn and notified dispatch that he was making contact with a suspect. Cattera exited the alley and pulled up to a curb. He then grabbed his flashlight and got out of his patrol car. Arnold approached Cattera at a fast pace, with his fists balled and his arms tensed. He said, "I'm going to fuck you up, pig."
Cattera told Arnold to stop and directed him to turn around. Arnold ignored the command and continued walking toward Cattera, saying, "I'm going to fuck you up, pig, you're going to need more than that." Arnold tried to hit Cattera on his head. Cattera blocked the blow and grabbed Arnold's arm. Arnold pushed his body against Cattera, backing Cattera against his patrol car. Arnold continued swinging at and hitting Cattera. Cattera hit Arnold on his arm and body three times with his flashlight. One blow struck Arnold on his head. Arnold did not appear to be affected by Cattera's blows and continued behaving aggressively.
As Cattera was holding Arnold's arm, the two of them moved to the center of the street. Cattera managed to get Arnold into a bear hug and tackled him to the ground. Arnold's weight landed on Cattera's wrist, breaking Cattera's watch. Arnold hit his head on the road. Arnold continued behaving aggressively; he was elbowing, kicking, punching, biting, spitting, shaking his head, and tensing his arms and fists. He was also screaming and rambling incoherently.
Cattera again used his flashlight to try to strike Arnold. He managed to hit Arnold on his arm and body three times. Cattera did not think that the flashlight was working to subdue Arnold, so he stopped using it and tried to control Arnold's arm using only his hands, instead. Cattera had blood on him. He did not know whether it was his own or Arnold's. Cattera was repeatedly telling Arnold to stop, but he was unable to get Arnold to comply.
Another officer, Dan Laughlin, responded to a radio call and saw the lights from Cattera's patrol car as he approached. Laughlin saw "two people that were, like, grappling," and realized that one was Cattera, his "beat partner." Laughlin ran over to assist Cattera, who was significantly smaller than the other person. After identifying himself as a police officer, Laughlin commanded Arnold to stop moving. Arnold did not obey the command. Laughlin then jumped on Arnold, but Arnold continued to behave aggressively, pushing, kicking, and fighting. While Arnold was on his stomach, clenching his hands and hiding them, Laughlin ordered Arnold to stop resisting and show his hands. Laughlin then hit Arnold on the thigh with a flashlight. Arnold continued kicking, elbowing, biting, and spitting. Laughlin struck Arnold twice with his knees.
Laughlin and Cattera together were eventually able to get Arnold's hands behind his back and handcuff him. Even after Arnold was handcuffed, he continued to pull, thrust, kick, spit, and verbally resist. Arnold kicked Laughlin in the shin, and tried to spit at and bite Laughlin. Laughlin sustained injuries to his shin and knee.
Arnold continued to phase through periods of calm followed by periods of violent resisting. He would suddenly begin to yell, scream, bite, thrust, and jerk around. His words did not make sense. The officers placed a "maximum restraint device" on Arnold.
A third officer, Christopher Senior, arrived at the scene and attempted to calm Arnold down by talking with him. Senior was not able to get Arnold to calm down. The officers eventually had to place a spit sock on Arnold's head to prevent him from spitting at them.
Arnold was taken by ambulance to a hospital. Once there, he continued to be verbally combative and to engage in loud outbursts. He was treated with one staple to close a wound on his head.
Cattera and Laughlin believed that Arnold was on drugs at the time of the incident, given his agitated state, his aggressiveness, the fact that his body was rigid, the "animal-type noises" he was making, his clenched jaw, and his fidgeting and sweating.
On July 24, 2016, while in jail, Arnold had a telephone conversation with G.B. The recording of the conversation was redacted in part, at Arnold's request, and the redacted version was played for the jury. During the conversation, G.B. commented that if Arnold wanted to get out of jail, Arnold would fight for that "any possible way." At some point during the conversation, Arnold said, "I fuckin' did all this shit. Fuck it. Face the fuckin' music." He later said, "They got me. I did it. I did all of it." B. Procedural background
A jury convicted Arnold of two counts of attempting to deter an executive officer with threats or violence or resisting an executive officer with force of violence (Pen. Code, § 69). Arnold admitted the allegations that he committed the offenses while he was on bail (§ 12022.1, subd. (b)), that he had suffered a prior strike (§§ 667, subds. (b)-(i), 1170.12), and that he had suffered a prison prior (§§ 667.5, subd. (b), 668).
Further statutory references are to the Penal Code unless otherwise indicated.
The trial court sentenced Arnold to a term of 10 years 4 months in prison for the offenses in this case.
On the same date, the court sentenced Arnold in case No. SCD267654 to an additional 16 months, to run consecutively to the sentence in this case, resulting in a total term of 11 years 8 months. --------
III.
DISCUSSION
A. The trial court did not err in admitting evidence of the jail telephone phone call
Arnold argues that the trial court abused its discretion in determining that the statements he made during the telephone conversation he had with G.B. were admissible for their truth pursuant to Evidence Code section 1220, and in concluding that the evidence was not more prejudicial than probative under Evidence Code section 352. He further complains that if the court was going to admit the statements he made during that call, the court should have allowed him to introduce the contents of other calls, during which he claimed to be innocent, pursuant to Evidence Code section 356, which is commonly referred to as the "rule of completeness." (People v. Vines (2011) 51 Cal.4th 830, 862.) Arnold further asserts that the admission of his statements, combined with the exclusion of "countervailing statements in other jail calls," violated his federal constitutional rights to due process, to confront the evidence against him, and to a fair trial. We conclude that there was no abuse of discretion and no constitutional violation.
1. Additional background
Prior to trial, the prosecution moved to consolidate three pending cases against Arnold for trial—this case and two others. One of the other cases involved charges of evading an officer with reckless driving and driving with a suspended license. The third case involved charges of grand theft and identity theft that arose after Arnold allegedly used a fraudulent credit card to post bail in the case in which he was charged with evading an officer. Arnold opposed consolidation of the cases. The trial court consolidated the other two cases, but ruled that this case would be tried separately.
Also prior to trial, the prosecution moved to admit a recording of a telephone call to which Arnold was a party while he was in jail. After the prosecutor explained to the court which portion of the telephone call he wanted to admit, the court asked the prosecutor to explain the context in which Arnold made the statements. The prosecutor explained that after Arnold was arrested in this case, he bailed out of jail. However, the facts of the "bad bail" case were then discovered, and Arnold was rearrested. It was after being rearrested that Arnold made the statements. The prosecutor noted that Arnold referenced some personal identifying information, so that some portions of the call would have to be redacted. The prosecutor anticipated that Arnold's contention regarding the telephone call was going to be "we don't know the context of this," so the prosecution was requesting that "as much of the context [be kept] in there as possible without stepping afoul of [Evidence Code section] 352."
Defense counsel opposed the admission of the recording. She claimed that the telephone call was out of context, and noted that Arnold had made more than 100 other calls on other dates. According to the defense, admission of that single call would be misleading because it was not clear what Arnold was admitting to, since he had multiple pending cases. Defense counsel also argued that introduction of the call would be time consuming as well as cumulative, because it would require that other conversations be admitted. Counsel further argued that admitting the telephone call would be more prejudicial than probative.
The trial court determined that the statements that Arnold made during the telephone call were admissible as party admissions, and that the probative value of the contents of the call outweighed any potential prejudice. Defense counsel then requested that the court admit the contents of other telephone calls during which Arnold denied committing the offenses charged in this case. The prosecutor's position was that the other calls were not part of the same conversation, so the rule of completeness did not require that they be admitted, and there was no other exception to the hearsay rule that would permit the defense to introduce statements that Arnold made during the other conversations.
Defense counsel argued that Arnold's right to confront witnesses would be violated by the admission of the contents of the call because he could not cross-examine the other party to the call. The prosecutor argued that the other person's statements were not being offered for their truth but, rather, were offered to show the effect on the listener, Arnold, such that they were not testimonial statements.
The court determined that the rule of completeness did not apply to statements made during other telephone calls, and that defense counsel had not identified any other exception to the hearsay rule that would permit the defense to introduce in evidence statements that Arnold made during the other telephone calls.
The prosecutor introduced the recording of the jail telephone call between Arnold and G.B. on July 24, 2016. During the call, Arnold and G.B. said the following:
"ARNOLD: I have so many fucking court dates coming up, the day of. I probably got, like, ten more court dates. Are you kidding me? They can do whatever the fuck they want to do. That's the part you don't understand. They can do . . .
"[G.B.]: They can . . .
"ARNOLD: . . . whatever the fuck they want to do.
"[G.B.]: You know, you can't get 'em, like, it's - because it's - you - you have to give them another - another outlook on - on - on a different take on it. You know, you - they see it one way and if they're not coming - if they're not gonna get an argument from you, then they're just gonna just leave it as that.
"ARNOLD: Well, the only time you can argue it . . .
"[G.B]: Don't let . . .
"ARNOLD: . . . is if you [go] to trial. Otherwise, it - it's shut the fuck up. You don't understand the system.
"[G.B.]: Well, I know this much, if you really wanted to get out, you'd fight for it any possible way that you can. Don't go against it and say this won't happen and that won't happen. If there's a possibility that something to counter it [sic], say something now. Don't - don't hesitate . . .
"ARNOLD: They'll walk through when you go to court.
"[G.B.]: If you . . .
"ARNOLD: When I go to court, I'll see. What the fuck . . .
"[G.B.]: . . . wait.
"ARNOLD: . . . do you want me to do?
"[G.B.]: Okay, I won't say anything anymore. How about that? I - I won't look for other avenues. How about that? I won't try budging.
"ARNOLD: I'm fucking deal [sic] with all this shit, alright? It's [sic] comes plain and simple. I fuckin' did all this shit. Fuck it. Face the fuckin' music.
"[G.B.]: Then you're just giving up.
"ARNOLD: That's what it comes down to.
"[G.B.]: You're just giving up?
"ARNOLD: Ah, giving up? They got me. I did it. I did all of it.
"[G.B.]: Oh, my gosh. So, then don't complain that you're there then.
"ARNOLD: Okay, then I won't complain anymore."
After the jury found him guilty, Arnold moved for a new trial, arguing that the trial court erred in allowing the recording of the jail call to be admitted in evidence. The court denied the motion, concluding that the statements that Arnold made during the call were admissible under Evidence Code section 1220, and were probative and not unduly prejudicial.
2. Legal standards
"We review the trial court's determination as to the admissibility of evidence (including the application of the exceptions to the hearsay rule) for abuse of discretion [citations] and the legal question whether admission of the evidence was constitutional de novo [citation]." (People v. Mayo (2006) 140 Cal.App.4th 535, 553.)
Evidence Code section 1220 provides: "Evidence of a statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party . . . ."
Pursuant to Evidence Code section 351, "all relevant evidence is admissible." Relevant evidence is defined as evidence "having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.)
However, "[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352.) "The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. '[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendant's case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, "prejudicial" is not synonymous with "damaging." ' " (People v. Karis (1988) 46 Cal.3d 612, 638.)
Evidence Code section 356, which sets forth the rule of completeness, states, "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." "The purpose of [Evidence Code section 356] is to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' " (People v. Arias (1996) 13 Cal.4th 92, 156 (Arias), italics added; accord, People v. Melendez (2016) 2 Cal.5th 1, 25.)
3. Analysis
Arnold's statements, such as, "I fuckin' did all this shit," and "I did it," and "I did all of it," are clearly admissions of a party and are thus admissible pursuant to Evidence Code section 1220. Arnold suggests that the statements were not relevant, arguing that his admissions were unclear and that the statements could have referred to any or all of the charges that he was facing. The statements were clearly relevant, since a reasonable inference is that Arnold was admitting that he had committed the offenses charged in this case. Further, the admission of his statements was not more prejudicial than probative. The statements were highly probative; the mere fact that they constituted strong evidence of Arnold's guilt did not render them "prejudicial" for purposes of Evidence Code section 352. There was nothing particularly inflammatory or emotional about the statements.
Arnold contends that the court's ruling violated his rights to due process, confrontation, and a fair trial because the ruling placed him in the position of having to introduce evidence of the other cases pending against him in order to explain what else he might have been referring to. We disagree. Although Arnold was in a difficult position, he could have presented evidence regarding the other pending cases in order to explain that he was referring to those offenses in the phone call. He could then have requested a limiting instruction informing the jury that it could use the evidence of the other offenses only to place his statements in the phone call in context, and not as evidence demonstrating his propensity to commit crimes.
Further, we disagree with Arnold's contention that the trial court should have allowed him to introduce the contents of other jail calls in which Arnold made different statements. He argues that in order for the jury to have the full picture, the other conversations should have been admitted. First, Arnold may not introduce his own out-of-court statements, since such statements, when offered by the defendant, are inadmissible hearsay:
"The 'fuller picture' defendant argues should have been presented to the jury consisted of self-serving hearsay not otherwise admissible at trial. (See Evid. Code, § 1220 [to qualify as a party admission, a hearsay statement must be introduced against the declarant].) Defendant was free to present this information by taking the stand himself. To allow him to present this evidence through admission of the unredacted recording would have allowed him to present favorable evidence without subjecting himself to cross-examination. ' "A defendant in a criminal case may not introduce hearsay evidence
for the purpose of testifying while avoiding cross-examination." ' " (People v. Gurule (2002) 28 Cal.4th 557, 605.)
Second, statements that Arnold made during the other phone calls were not admissible pursuant to the rule of completeness enunciated in Evidence Code section 356. This evidentiary rule has as its purpose "to prevent the use of selected aspects of a conversation, act, declaration, or writing, so as to create a misleading impression on the subjects addressed. [Citation.] Thus, if a party's oral admissions have been introduced in evidence, he may show other portions of the same interview or conversation, even if they are self-serving, which 'have some bearing upon, or connection with, the admission . . . in evidence.' " (Arias, supra, 13 Cal.4th at p. 156.) Key to this concept is that the statements must be part of the same interview or conversation. Arnold sought to admit self-serving hearsay statements that he made during different conversations. These conversations occurred on different days and sometimes with different people. The court did not err in refusing to admit Arnold's self-serving hearsay statements that were made during different conversations from the one in which he stated that he was guilty of "all of it." B. The trial court did not err in failing to instruct, sua sponte, on simple battery and simple assault as lesser included offenses
Arnold contends that the trial court erred in failing to instruct the jury on the offenses of assault and battery as lesser included offenses of the offense with which he was charged, resisting an executive officer with force or violence, pursuant to section 69.
"We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense." (People v. Cole (2004) 33 Cal.4th 1158, 1218.) "A trial court must instruct the jury sua sponte on a lesser included offense only if there is substantial evidence, ' "that is, evidence that a reasonable jury could find persuasive" ' [citation], which, if accepted, ' "would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser.' " (Ibid.)
" 'For purposes of determining a trial court's instructional duties, we have said that "a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." ' [Citation.] When applying the accusatory pleading test, '[t]he trial court need only examine the accusatory pleading.' " (People v. Banks (2014) 59 Cal.4th 1113, 1160, italics omitted, abrogated on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)
"[A]ssault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) A "battery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) A person commits the offense of resisting an executive officer if the person "attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty . . . ." (§ 69, subd. (a).)
Under the statutory elements test, it is possible to violate section 69 without either attempting to touch, or actually touching, the officer because there are two independent ways that one could commit the offense. (See People v. Brown (2016) 245 Cal.App.4th 140, 153 (Brown) ["section 69 can be violated in two separate ways"].) Thus, under the statutory elements test, neither assault nor battery is a lesser included offense of resisting an executive officer. (Ibid.)
Under the accusatory pleading test, however, we consider whether the facts alleged in the accusatory pleading include all of the statutory elements of an assault. (People v. Birks (1998) 19 Cal.4th 108, 117-118.) The information alleged that Arnold "did unlawfully attempt by means of threats and violence to deter and prevent . . . an executive officer from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of his/her duty . . . ." Because the information alleged both forms of the offense, in the conjunctive, the information alleged that Arnold resisted the officers by actually using force and violence. Because of the way in which the offense was charged against Arnold, it was not possible to violate section 69 without also committing an assault and a battery.
The People concede that the offenses of assault and battery were necessarily included offenses of section 69 as alleged in the charging document. However, the People contend that instructions on assault and/or battery were not required in this case because there was no substantial evidence that Arnold's offenses were anything less than the offense of resisting an executive officer. Although we consider this to be a close case, we ultimately agree with the People on this point.
"[I]nstructions on lesser included offenses 'are required whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury.' " (People v. Campbell (2015) 233 Cal.App.4th 148, 162.) "[T]he 'substantial' evidence required to trigger the duty to instruct on such lesser offenses is not merely 'any evidence . . . no matter how weak' [citation], but rather ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (People v. Cruz (2008) 44 Cal.4th 636, 664.)
Arnold relies on Brown, supra, 245 Cal.App.4th 140, to argue that the trial court was required to instruct on the offenses of simple assault and simple battery as lesser included offenses. However, the state of the evidence in Brown differs in significant respects from the evidence here. In Brown, prior to the interaction between a police officer and the defendant, the defendant was riding his bicycle unlawfully on the sidewalk while wearing earphones and without using a bicycle light. The officer yelled for the defendant to stop, but the defendant sped up and attempted to flee. (Id. at p. 146.) Another officer came to assist, and both officers pursued the defendant on foot. (Ibid.) The officers cornered the defendant in a parking lot, and one of the officers tackled the defendant from his bicycle, taking him to the ground. (Ibid.) The testimony of the officers and that of the defendant as to what occurred next differed significantly. The officers testified that the defendant immediately flipped around and sat up, and began swinging at one of the officers with clenched fists. (Ibid.) The officer tried to gain control by using a " 'compliance strike,' " but the defendant continued to swing at the officer. It was only after the second officer struck the defendant a few times that the officers were able to gain control of the defendant and handcuff him. (Ibid.)
The defendant testified that he never attempted to strike the officers, that he fell off of his bicycle after hitting a curb, and that while he was facedown, without warning, one of the officers dove onto his back. (Brown, supra, 245 Cal.App.4th at pp. 146-147.) According to the defendant, the officer, unprovoked, hit the defendant in the head three times; the other officer's only role was to place handcuffs on the defendant after the first officer struck him. (Id. at p. 147.) The defendant suffered a fractured rib and knots on his head, and one of the officers sustained a " 'boxer's fracture' " to the knuckles on his right hand. (Id. at p. 146.)
The defendant was convicted of resisting an executive officer pursuant to section 69. On appeal, the defendant argued that the trial court should have instructed on the lesser included offense of simple assault. The appellate court agreed, holding that the jury could have concluded that the officers used unreasonable or excessive force if they credited the defendant's version of events, but could also have concluded that the defendant responded to the officers' use of excessive force with unreasonable force, if they also credited the officers' version of events. (Brown, supra, 245 Cal.App.4th at p. 154.) Thus, the jury could have concluded from the evidence presented that the officers' use of force was excessive but that the defendant's use of force in response was unreasonable, which would have supported an assault conviction: " '[W]hen excessive force is used by a defendant in response to excessive force by a police officer . . . defendant [may] be convicted, and then the crime may only be a violation of section 245, subdivision (a) or of a lesser necessarily included offense within that section,' such as section 240." (Ibid.)
In this case, in contrast, Arnold did not testify. Since there were no witnesses to the altercation between Arnold and the police officers, the only testimony on that subject was that of the two officers. There was virtually no evidence presented at trial that tended to support Arnold's contention that the officers used excessive force on him. The only evidence that could potentially support this version of events is the fact that Arnold suffered a head wound that required suturing, and that Officer Cattera admitted to striking Arnold in the arms, body, and head. However, as Arnold concedes, in order for the jury to have concluded that the officers used excessive force, the jury would have had to credit only the portion of Cattera's testimony in which he acknowledged hitting Arnold with a flashlight while discrediting everything else Cattera testified to regarding Arnold's conduct, particularly the testimony regarding Arnold aggressively attacking Cattera upon Cattera exiting his patrol car. Arnold suggests that the jury could have rejected Cattera's testimony about Arnold's behavior because Officer Laughlin testified only that Arnold "was swinging his arms 'wildly,' not that he was punching Officer Cattera." However, contrary to Arnold's description of Officer Laughlin's testimony in this regard, it is clear that Officer Laughlin testified not merely that Arnold was "swinging his arms 'wildly,' " but that he observed Arnold attempting to strike Officer Cattera. Specifically, Laughlin was asked, "Did you see the defendant, I guess, try to strike Officer Cattera?" Laughlin responded, "Yes." He was then asked, "How did he do that?" Laughlin testified, "He was swinging both of his arms wildly as he was closing the distance to Officer Cattera."
We reject Arnold's contention that the possibility that the jury might reject some of the testimony of prosecution witnesses could amount to substantial evidence to support giving a lesser included offense instruction. A similar contention was rejected in People v. Acevedo (1985) 166 Cal.App.3d 196, 201. In Acevedo, the defendant argued "that the jury could disbelieve . . . part of Josefina's testimony [in which the victim testified that the defendant slapped and shook her, and that she believed he would hurt her] and the element of force would not be established although there would be sufficient evidence of lesser included offenses." (Ibid.) The Acevedo court disagreed: "If we were to adopt Acevedo's argument, lesser included offense instructions would be warranted in every criminal prosecution as the jury is always entitled to believe all or part of the prosecution's evidence. Our Supreme Court recently acknowledged that rejection of prosecution evidence does not warrant instructions on lesser related offenses. (People v. Geiger (1984) 35 Cal.3d 510, 531.) The court stated 'the first prerequisite to receiving instructions on lesser related offenses must be the existence of some basis, other than an unexplainable rejection of prosecution evidence, on which the jury could find the offense to be less than that charged.' We conclude that disbelief of all or part of the prosecution case does not require instruction on lesser included offenses, either." (Acevedo, at p. 201, second italics added.) We agree with the Acevedo court's analysis and conclude that the possibility that the jury might have disbelieved a portion of Officer Cattera's testimony is not sufficient "evidence" to have required the trial court to instruct the jury on the lesser included offenses of assault and battery in this case. C. This court has reviewed the sealed transcript and has found no error in the court's ruling with respect to Arnold's Pitchess motion
Arnold requests that this court conduct an independent review of the sealed documents that the trial court reviewed in response to Arnold's Pitchess motion. The People agree that Arnold is entitled to such review.
In People v. Gaines (2009) 46 Cal.4th 172, 179, the Supreme Court summarized the manner by which a party may discover evidence in confidential police officer personnel records under Pitchess and its progeny:
"[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.] A showing of good cause is measured by 'relatively relaxed standards' that serve to 'insure the production' for trial court review of 'all potentially relevant documents.' [Citation.] If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the litigation." ' "
On appeal, this court is required to review the "record of the documents examined by the trial court" and determine whether the trial court abused its discretion in refusing to disclose the contents of the officers' personnel records. (People v. Mooc (2001) 26 Cal.4th 1216, 1229; see People v. Hughes (2002) 27 Cal.4th 287, 330.)
We have examined the personnel records of the three police officers reviewed by the trial court and conclude that the court did not abuse its discretion in denying discovery of the records.
IV.
DISPOSITION
The judgment is affirmed.
AARON, Acting P. J. WE CONCUR: IRION, J. GUERRERO, J.