Opinion
A121276
7-10-2009
THE PEOPLE, Plaintiff and Respondent, v. ALFONSO ESQUEDA, Defendant and Appellant.
Not to be Published in Official Reports
A jury found appellant Alfonso Esqueda guilty of misdemeanor brandishing of a firearm. (Pen. Code, § 417, subd. (a)(2).) He was granted probation, conditioned on spending 90 days in county jail. Esqueda appeals, contending that the trial court violated his due process rights by making evidentiary and instructional errors. We affirm the conviction.
All statutory references are to the Penal Code unless otherwise indicated.
I. FACTS
A. Incident
On the night of July 29, 2006, appellant Alfonso Esqueda had been a police officer for more than six years, but had been employed by the Daly City Police Department for less than a year. Officer Sean Begley was also on duty that night. The city was experiencing a series of vehicle thefts and by 12:30 a.m., Esqueda spotted a vehicle that had been reported stolen. He reported this fact to Officer Begley and watched it to see if he could find out who might have stolen it.
Esqueda saw a man approach the vehicle before moving on to a nearby electrical box. The man pulled something out of his waistband, put it in the box, and walked on toward an apartment building. Esqueda feared that the object left in the box was a weapon. Esqueda asked Officer Begley to detain the man. Inside the electrical box, Esqueda found a flathead screwdriver, which he knew to be a useful tool for car thieves. He left the screwdriver in the box and continued watching the stolen vehicle.
Officer Begley spotted the man—later identified as Melecio James Macawile—walking toward his Villa Street apartment building. Macawile did not stop when Officer Begley called out to him to do so. The officer caught up with the man as he put a key into the apartment building gate.
Macawile identified himself as James Mack, but had no identification. He also denied that he was on probation. Officer Begley determined that Macawile was unarmed, but found the man to be nervous, agitated, and unwilling to talk. Macawile also appeared to be under the influence of a controlled substance. Officer Begley thought that he was lying. When Macawiles mother called out from an upstairs window to inquire after her son, Estela Macawile gave Officer Begley his correct surname.
Macawile later admitted that he was under the influence of methamphetamine that night.
This questioning was interrupted briefly while Officer Begley responded to an unrelated emergency call. When that call was completed, Officer Begley conducted a records check on Macawile, learning that he had arrested the man several months earlier for driving a stolen car. During that earlier encounter, Officer Begley had learned that Macawile had been dishonorably discharged from the Army and that he had stolen the vehicle he had been caught driving.
By this time, Esqueda had abandoned his vehicle surveillance. He met with Officer Begley, who reported his contact with Macawile that evening, including his recollection of the earlier arrest. According to Esqueda, Officer Begley told him that Macawile was under the influence, that the man had lied to him, and that he was on probation for vehicle theft. The officers discussed the possibility of conducting a probation search and questioning Macawile about stolen vehicles in the area.
Officer Begley was not certain if he told Esqueda at that time that he suspected that Macawile was under the influence or that he had patted down Macawile for weapons and found that he was unarmed. Esqueda testified that Officer Begley did not inform him that he had pat-searched Macawile and found no weapon.
Officer Begley and Esqueda returned to the apartment building. When they tried to gain entry, Estela Macawile called out to them from an upstairs window. Officer Begley told her that they wanted to talk with her son again and the two officers entered the building. Officer Begley escorted Macawile away from his mother, so that he could speak with Estela Macawile alone. Macawile was stoic and nonresponsive, offering no resistance when Officer Begley took his arm to lead him away. During this brief encounter before he returned to speak with the mother, Officer Begley did not find it necessary to search Macawile for weapons again.
Esqueda and Macawile were out of Officer Begleys sight while he spoke with Macawiles mother. While he was talking with Estela Macawile, Officer Begley heard a thump coming from the location where Esqueda and Macawile were. Macawiles mother heard this, too, and feared that her son was being hurt.
Officer Begley soon joined Macawile and Esqueda outside the apartment building. He saw Macawile standing with his back to the wall. Officer Begley began to question Macawile, telling him that he knew about his history of stealing cars, warning him against methamphetamine use and advising him that he suspected that Macawile was not being honest about the stolen vehicle Esqueda had found. Macawile offered no physical resistance and was not violent.
Macawile denied any involvement with stolen cars, but Officer Begley still thought he was lying. When Macawile implicated a third party in a vehicle theft, Officer Begley observed that Esqueda grew frustrated. Esqueda drew his police weapon—a semiautomatic firearm—and placed it against Macawiles face. He urged Macawile to be more forthcoming about his involvement with stolen vehicles, without visible effect. Shocked at Esquedas conduct, Officer Begley injected himself, trying to change the manner in which the interview was being conducted.
Soon after the incident, Officer Begley told investigators that Esquedas gun left a mark on Macawiles face. He had no independent recollection of that circumstance by the time of trial.
After a few seconds, Esqueda lowered and holstered his weapon. Questioning continued. A short while later, Officer Begley arrested Macawile for a probation violation and for being under the influence. Officer Begley handcuffed him and Macawile was placed in Esquedas patrol car.
Then, Macawile offered to bring Esqueda to another stolen car. Officer Begley followed in his own car when Esqueda took Macawile to check out this report. The officers were led to a vehicle that was not stolen, but it was occupied by two probationers in possession of stolen papers.
B. Investigation
Later that night, Officer Begley was in his patrol car heading back to the station. Esqueda had offered no explanation to him about why he drew his gun on Macawile, but he apologized to his fellow officer. Officer Begley told Esqueda not to do that again in his presence. Still later, Officer Begley offered Esqueda some advice about how to interview someone like Macawile in a more friendly manner. Jokingly, Esqueda said: "No more guns to peoples faces."
Officer Begley knew that what Esqueda did was wrong, but he was uncertain what to do about it. He confided in Daly City Police Officer Scott Hepler that Esqueda did something inappropriate on duty. Officer Hepler asked: "[H]e didnt put a gun in somebodys mouth[,] did he?" Officer Begley replied that Esqueda did not do that, but did something similar. Later that night, Officer Begley was surprised to learn that Esqueda had not taken Macawile to jail, but had returned him to his home and released him.
That afternoon, Officer Begley formally reported Esquedas conduct to Daly City Police Sergeant Don Griggs and to Lieutenant Gregory Harman. An investigation into the incident ensued. That evening, Officer Begley was interviewed by Daly City Police Detective Gregg Oglesby and San Mateo County District Attorneys Inspector John Minihan about the incident. Daly City police also interviewed Macawile and his mother. A later interview with Macawile was videotaped. Esqueda was soon arrested and by the time of trial, was no longer a Daly City police officer.
Officer Hepler also gave a statement to Detective Oglesby that evening about what he had learned about the incident.
C. Trial
In December 2006, an information was filed charging Esqueda with four felony counts—single counts of assault with a semiautomatic firearm and brandishing a loaded firearm in a threatening manner, and two counts of assault committed under color of authority. Two of these counts were also accompanied by firearm use enhancement allegations. (See §§ 149, 245, subd. (b), 417, subd. (b), 12022.5, subd. (a).) Esqueda pled not guilty to all counts and denied all enhancement allegations. Before trial, the felony brandishing charge was reduced to a misdemeanor. (§ 417, subd. (a)(2).)
At trial, the jury heard three somewhat different versions of the events of July 29, 2006, from Officer Begley, from Macawile and from Esqueda. Macawile testified that while they were still inside the apartment building, Esqueda shoved him against a wall, held him there by the throat for 30 seconds, and said: "You little punk, I know you stole the cars." He testified that while Esqueda had the gun pointed at him, he also had a hand on his throat in a second attempt to choke him. Esqueda did not put the gun in his mouth. Esqueda did not conduct a weapons search before pointing a gun at him. Macawile admitted that he had pled guilty to a charge of receiving stolen property in October 2006.
Estela Macawile told police that she witnessed Esqueda place his hand on her sons upper chest or throat.
Estela Macawile also testified about her recollection of the incident. She admitted having been convicted of two counts of misdemeanor check fraud, two counts of commercial burglary, and one count of receiving stolen property. (See §§ 459, 460, subd. (b), 470, 496.)
The jury heard a tape-recorded interview of Officer Begley and Daly City officials. He denied that Esqueda had choked Macawile or put a gun in his mouth. Officer Begley knew that the testimony he offered about the incident could get Esqueda in trouble. He was uneasy about it, but believed that it was his duty to tell the truth.
For his part, Esqueda admitted that he pointed his semiautomatic weapon at Macawile, but testified that he did so to protect himself and Officer Begley, not to gain information. When the two officers went to question Macawile, Officer Begley seemed upset that Macawile had lied to him. He told Esqueda that he had arrested Macawile earlier for an offense involving a stolen vehicle, that Macawile was on probation, and that he was under the influence. Officer Begley also told Esqueda that Macawile had a military background and was "probably going to run." Officer Begley also stated that Macawiles mother had AIDS.
Esqueda was concerned that the manner in which Officer Begley approached Macawile—parking in front of the building and calling to Macawile from outside—put the officers in danger. When he saw Macawile coming downstairs, Esqueda unholstered his gun and placed it down at his side to protect his fellow officer. Officer Begley grabbed Macawile and pulled him downstairs to Esqueda. Once Officer Begley handed Macawile off to him, Esqueda used one hand to grab the top of Macawiles T-shirt and pull him through the door. Macawile said: "Dont hurt me."
Outside, Esqueda pushed Macawile up against a wall and held him there. Macawile did not resist, but put his hands up in surrender. Esqueda told him not to move and that he was not going to get hurt. Esqueda had one hand on his weapon, one hand on Macawile and a foot in the door of the apartment building so he could hear the conversation between Officer Begley and Macawiles mother. He was trying to guard Officer Begley, in case Macawiles AIDS-infected mother bit or spat at him.
Esqueda told the jury that he observed that Macawile was under the influence, as Officer Begley had reported. He thought that Macawile had used a stimulant, which he believed could make a person paranoid. Esqueda was unaware that Officer Begley had already searched Macawile for weapons. Macawile wore a baggy T-shirt that hid the waistband of his pants. Esqueda was too busy to patsearch Macawile for weapons.
When his interview with Estela Macawile ended, Officer Begley joined Esqueda and Macawile. Esqueda told the jury that Officer Begley grabbed Macawile by his shirt, moved Macawile to a different area, and pushed the man up against a wall. To himself, Esqueda questioned whether it was wise to move Macawile from a lit area to a darker one. Officer Begley stood close to Macawiles face and questioned the man in a belittling manner. Officer Begley told Macawile that he had lied, that he knew Macawile was on probation, that he knew that Macawile stole a car, and that the man was going to jail. Officer Begley blamed Macawile for the stolen car—a charge that Macawile denied. Esqueda thought that Macawile was lying.
Esqueda told the jury that while Officer Begley was interrogating Macawile, he had noticed that Macawile shifted his stance onto his toes and began glancing toward the street. Macawiles fists were also clenched. Thinking that Macawile was about to fight or flee, Esqueda immediately raised his weapon, pointing it at Macawiles face. He told Macawile not to do anything stupid: "This is not a big fucking deal." All they wanted to know was who was stealing cars, he told Macawile. When Esqueda grabbed Macawiles wrist and put him in a twist lock, his gun accidentally hit Macawiles face. Esqueda holstered his gun and Officer Begley handcuffed Macawile. At this point, Esqueda searched Macawile for weapons, finding that the man was unarmed.
By contrast, Officer Begley testified that he observed nothing about Macawile that raised any safety concern for him.
At trial, Esqueda repeatedly denied that he pointed his gun at Macawile to get information. Confronting a person who was trained in self-defense in the military, who was under the influence of a stimulant, and who appeared to be ready to run, Esqueda acted to protect himself and Officer Begley. He hoped to get Macawiles attention and to persuade him to calm down. When Officer Begley told him "dont ever do that again," he made no mention of the gun use. Esqueda thought that Officer Begley was upset because he had taken over the other officers investigation.
A few days after the Macawile incident, two other Daly City police officers heard Esqueda say that he had used a gun to get information from a suspect about stolen cars. Both officers thought that Esqueda was joking, so no one made any report about the statement. Esqueda testified that he was joking—that this incident never happened. A Daly City police officer testified that a few months before the Macawile encounter, he was shocked to hear Esqueda threaten a handcuffed suspect if the detainee refused to tell him the truth.
A defense expert testified that, in his opinion, Esquedas weapon use against Macawile was objectively reasonable to prevent the detainee from fleeing. Esqueda moved for acquittal on the two counts of assault committed under color of authority. (See §§ 149, 1118.1.) The motion was denied. Ultimately, the jury acquitted Esqueda of the count of assault committed under color of authority involving choking and convicted him of misdemeanor brandishing of a weapon. (§§ 149, 417, subd. (a)(2).) It was unable to reach a verdict on the other two use of weapons charges and the trial court ultimately declared a mistrial on them. Esqueda moved for a new trial and to set aside the misdemeanor brandishing conviction, complaining inter alia that the trial court failed to instruct on self-defense. (See CALCRIM No. 3470.) The People opposed both motions and both were denied.
In April 2008, the trial court suspended sentence and granted Esqueda a one-year term of probation for the misdemeanor brandishing conviction. One condition of probation required him to serve 90 days in county jail. He was also barred from owning or possessing firearms for 10 years.
It appears that Esqueda remains free on $ 100,000 bail pending determination of this appeal. (§ 1272, subd. 2.)
II. JURY INSTRUCTIONS
A. Instructions Given and Refused
First, Esqueda challenges the jury instructions given, arguing that the trial court failed to instruct on an element of the brandishing charge. He asserts that by failing to instruct the jury that the prosecution was required to prove beyond a reasonable doubt that he did not act in self-defense or in defense of others, the trial court violated his federal right to due process. (U.S. Const., 5th & 14th Amends.)
"Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner" is guilty of misdemeanor brandishing punishable by a county jail term of not less than three months. (§ 417, subd. (a)(2)(B), italics added.) At trial, both Esqueda and the prosecution asked the trial court to instruct on self-defense and defense of another. (See CALCRIM No. 3470.) The trial court refused this request, reasoning that because Esqueda was a police officer at the time of the incident, he should not have to bear the burden of proving an affirmative defense of self-defense of defense of others. It concluded that the issue in the brandishing case was not whether Esqueda acted in self-defense or in defense of Officer Begley, but whether Esqueda used excessive force. The trial court ruled that self-defense was not an issue in this case, but that instead, the prosecution had the burden of proving beyond a reasonable doubt that Esqueda used unreasonable or excessive force.
As paraphrased, CALCRIM No. 3470 instructs the jury that a defendant is not guilty of a crime if he or she used force against the other person in lawful self-defense or in defense of another. The instruction goes on to explain that the defendant acted in lawful self-defense or defense of another if: the defendant reasonably believed that he or she or someone else was in imminent danger of suffering bodily injury or unlawful touching; he or she reasonably believed that the immediate use of force was necessary to defend against that danger; and he or she used no more force than was reasonably necessary to defend against that danger.
Accordingly, the trial court modified CALCRIM No. 983—the standard jury instruction on the elements of misdemeanor brandishing—to omit any reference to a lack of self-defense. It instructed the jury instead that the police officers use of unreasonable or excessive force was an element of the brandishing charge. It did not instruct on the defenses of self-defense or the defense of others. After trial, the trial court rejected Esquedas instructional challenge when it denied his motion for new trial.
The jury was instructed that, to prove Esqueda guilty of brandishing a firearm, in violation of section 417, subdivision (a), the People must prove that: "1. The defendant drew or exhibited a firearm in the immediate presence of someone else; and [¶] 2. The defendant did so in a rude, angry, or threatening manner; and [¶] 3. The defendant is a police officer who used unreasonable or excessive force under the circumstances." (CALCRIM No. 983 (modified).) In the standard jury instruction, the third element requires that the jury find that the defendant did not act in self-defense or in defense of others. (See ibid.)
B. Standard of Review
This appeal turns on the legal correctness of the jury instructions given and rejected. To satisfy federal constitutional due process requirements, the prosecution must prove beyond a reasonable doubt every fact necessary to constitute the crime with which a criminal defendant is charged. (In re Winship (1970) 397 U.S. 358, 364; People v. Thompson (2000) 79 Cal.App.4th 40, 59-60.) The trial court has a sua sponte duty to instruct on all elements of a charged crime. (People v. Cummings (1993) 4 Cal.4th 1233, 1311; People v. Blick (2007) 153 Cal.App.4th 759, 775 fn. 8; People v. Beeson (2002) 99 Cal.App.4th 1393, 1401.) Instructions that relieve the prosecution of the burden of proving an element of the charged offense beyond a reasonable doubt violate the defendants federal due process rights. (Sullivan v. Louisiana (1993) 508 U.S. 275, 277-278.)
C. Brandishing by Peace Officer
On appeal, we determine de novo whether a jury instruction correctly states the law, applying our independent judgment. (People v. Posey (2004) 32 Cal.4th 193, 218; People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.) The resolution of the issue posed by this appeal involves the interplay of a misdemeanor brandishing charge and an on-duty police officers right to use reasonable force. A misdemeanor brandishing charge typically allows for a defense of self-defense. (§ 417, subd. (a)(2)(B).) In making a lack of self-defense an element of this offense, the Legislature acknowledged that a civilian retains the right to display a firearm in self-defense or in defense of others.
In Esquedas case, the person charged was not a civilian but a law enforcement official acting in the course of his public duties. A peace officer has a right to use reasonable force to make an arrest, prevent escape or overcome resistance. (§ 835a; Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1272-1273 [civil battery].) Unlike a private citizen, a police officer acts under color of law to protect the public interest. The officer must act affirmatively and may use force as a part of his or her duties, because the right to detain someone necessarily carries with it the right to use some degree of actual or threatened physical coercion to effect the detention. (Id. at p. 1273.) As a law enforcement officer is not similarly situated to an ordinary citizen, the officer need not be treated the same as a civilian. A police officer who exercises the privilege of protecting the public peace is entitled to use greater force than might be allowed to a citizen acting in self-defense in the same circumstances. (See id. at pp. 1273-1274.)
Edson has been cited with approval by the California Supreme Court. (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 902 [common law battery claim requires proof that officer used unreasonable force].)
As Edson makes clear, a police officer has a greater right to draw or exhibit a firearm than a civilian acting in self-defense or in defense of others would have. Considering the implications of this right on the misdemeanor brandishing charge against Esqueda, the trial court reasoned that as long as he used reasonable force, then he acted within his rights, even if that use of force was greater than that which a civilian could use in self-defense. If the brandishing charge allowed him only an affirmative defense of self-defense or defense of others, it would improperly deny him his right to use greater, reasonable force. We agree with the trial court that a brandishing charge against a peace officer has not been proven unless the People establish that the officer used unreasonable force. (See Edson v. City of Anaheim, supra, 63 Cal.App.4th at pp. 1273-1274 [civil battery case].) Unless the People prove that unnecessary force was used, courts will protect the officer from punishment. (See id. at p. 1274.)
A trial courts obligation is to state the law correctly when instructing the jury. (People v. Runnion (1994) 30 Cal.App.4th 852, 858; see People v. Fiu (2008) 165 Cal.App.4th 360, 370.) It must instruct on the applicable law, but need not adhere to any particular form of instructions. (People v. Fiu, supra, at p. 370.) In this matter, the citizens normal defense of self-defense was, in effect, subsumed within Esquedas right to use reasonable force. We are satisfied that in adapting the standard jury instructions on the misdemeanor brandishing charge to reflect Esquedas peace officer status, the trial court met its obligation to provide complete, correct instructions to the jury. No instructional error occurred and Esquedas due process rights were protected.
III. EVIDENTIARY ISSUES
A. Esquedas Training and Experience
1. Excluded Evidence
Esqueda also contends that two evidentiary errors occurred at trial in violation of his due process rights. First, he challenges the trial courts exclusion of evidence of his training and past experience, thus violating his federal due process right to present a defense. (U.S. Const., 14th Amend.) In the trial court, Esqueda argued at length that he was entitled to bring in evidence of his training and experience to prove that he felt that the use of force was necessary during his encounter with Macawile. He sought to offer evidence about the training he had received and the experiences he had had about circumstances—such as a suspects gestures indicating the possibility of flight or aggression—that he was trained to and had learned to consider when determining the proper amount and type of force to use.
The trial court repeatedly ruled that Esquedas assessment of the issue presented for the jury to resolve was incorrect. It found that the jury was required to apply an objective standard when evaluating whether Esqueda used unreasonable or excessive force. Thus, it concluded that his subjective opinion of his need to use force was irrelevant, rendering his proffered evidence of his training and experience irrelevant as well. The jury was instructed that when determining whether Esqueda used unreasonable or excessive force, it had to determine whether his actions were objectively reasonable under the circumstances, from the perspective of a reasonable police officer, without regard for the subjective motivation for using force. On appeal, we review the trial courts exclusion of evidence on relevance grounds for an abuse of discretion. (People v. Harrison (2005) 35 Cal.4th 208, 230; People v. Kipp (2001) 26 Cal.4th 1100, 1123.) A trial court abuses its discretion when its ruling exceeds the bounds of reason. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1533.)
The trial court also rejected expert testimony from the prosecution or the defense about whether Esquedas specific use of force was reasonable, although it permitted expert witnesses to offer generic testimony about what use of force was reasonable or unreasonable under hypothetical circumstances.
2. Relevancy
On appeal, Esqueda contends that the trial court erred by excluding evidence of his training and experience to bolster his claim that he felt that the use of force was necessary during the incident with Macawile. This argument is premised on the assumption that evidence of his subjective view of the circumstances surrounding his encounter with Macawile was relevant to the issue of whether he used unreasonable or excessive force. We disagree with that premise.
Esqueda was permitted to testify about the circumstances surrounding his encounter with Macawile and about whether he feared for his safety during that incident. A defense expert also testified about the reasonableness of his conduct.
When a law enforcement official is alleged to have used excessive force in the course of discharging his or her duties, we must analyze that claim against the Fourth Amendments standard of objective reasonableness. (Graham v. Connor (1989) 490 U.S. 386, 388.) We evaluate the totality of the facts and circumstances of the particular case including the severity of the crime, whether the suspect posed an immediate threat to the safety of the officer or to others, and whether the suspect was actively resisting or attempting to evade arrest by flight. The reasonableness of the officers conduct is judged from the perspective of an objectively reasonable officer on the scene. (See id. at p. 396.)
We interpret this standard—as the trial court did—to render irrelevant any evidence of the officers subjective belief in the reasonableness of his or her use of force. At trial, only relevant evidence is admissible. (Evid. Code, § 350.) Relevant evidence is that which has some tendency to prove or disprove any disputed fact of consequence to the determination of the action. (Evid. Code, § 210.) As Esquedas subjective view of his need to use force was irrelevant, the trial court did not abuse its discretion when it ruled that the proffered evidence of his training and experience—bearing only on his subjective intent—was likewise irrelevant and inadmissible. (See Evid. Code, § 350.) Having found that the trial court properly concluded that an objective—not a subjective—test applied to determine whether Esquedas use of force was reasonable or excessive, we also find that the trial court acted within its discretion when it excluded the proffered evidence of his training and experience.
Esqueda concedes that the evidence was irrelevant to the question of excessive force, but argues that it was relevant to the defense of self-defense. As we have already concluded that the trial court properly concluded that self-defense was not an issue in the case, we necessarily reject this alternative claim. (See pt. II., ante.)
B. Character Evidence
1. Challenged Testimony
Finally, Esqueda contends that the trial court erred by admitting improper and highly prejudicial character evidence against him. (U.S. Const., 14th Amend.) After conducting a foundational hearing, the trial court granted the Peoples motion in limine to allow Officer Hepler to testify about an incident of Esquedas use of excessive force before the Macawile encounter. (See Evid. Code, § 1101, subd. (b).) It denied a contrary motion in limine from Esqueda seeking to preclude admission of this testimony as improper character evidence. (See Evid. Code, § 1103, subd. (b).)
Officer Hepler also testified at trial about Officer Begleys recounting of the Macawile incident shortly after its occurrence.
In the presence of the jury, Office Hepler testified that in the winter of 2006, he and Esqueda responded to a report that a child was choking. When Officer Hepler arrived at the apartment where the child was reported to be, Esqueda was there and a man was in handcuffs. Once Officer Hepler determined that the child was not in danger, he began to suspect that a domestic violence incident had occurred between the man and the childs mother. Both adults denied that any physical altercation had taken place between then, but other indicators suggested that it had.
Esqueda was trying to get the truth about what had actually happened. The man continued to insist that the child had been choking. Esqueda told this man—whose hands were still cuffed behind him—to "Tell the truth or Ill kick your ass." Officer Hepler was shocked to hear Esqueda say this. Esqueda was not in danger, but was simply trying to get information from the man. Ultimately, the man left to spend the night in a motel and the childs mother remained in the home.
Officer Hepler did not mention this incident in his police report of the domestic violence incident. After the Macawile encounter occurred, a Daly City police detective questioned Officer Hepler about the earlier incident, which he described in a videotaped interview that was played for the jury during trial. In that interview, he told the detective that he thought that Esqueda was out of control. Officer Hepler told the jury that it was difficult for him to testify against an officer that he once worked with.
During his defense, Esqueda offered his own version of the incident. He told the jury that the man who answered the apartment door would not allow him in to verify that the child was safe. Seeing a woman and child in tears, he pushed the man aside and walked into the apartment, ignoring the mans protests. The woman subtly confirmed to Esqueda that the man had hurt her. Alone handling a domestic violence matter, and concerned for his safety and for the safety of the woman if he left the house, Esqueda handcuffed the man.
According to Esqueda, the man became verbally abusive, trying to intimidate the woman into denying that anything untoward had happened. As Officer Hepler arrived, Esqueda was telling the man to "shut up." "I will kick your ass," Esqueda said to the man. "Dont talk to her like that. . . . [Y]ou need to tell the truth." As Esqueda hoped, the man calmed down. Later, Esqueda took the man to a motel for the night. Officer Hepler never said anything to suggest that he thought Esqueda was "out of control." At trial, Esqueda admitted that threatening to kick someones ass had probably been inappropriate.
The trial court instructed the jury that the evidence of this earlier incident was only relevant for the limited purpose of deciding whether Esqueda acted with the intent to assault Macawile; if he had a motive to commit the charged offenses; or if his actions were the result of mistake, accident or other lawful cause. It admonished the jury not to conclude from this evidence that Esqueda had a bad character or was disposed to commit crime. It also told the jurors that this evidence alone was insufficient to support a finding of guilt on any of the charged offenses.
2. Evidentiary Restrictions on Character Evidence
Character evidence, including specific instances of conduct, is inadmissible when offered to prove conduct on a specific occasion. (Evid. Code, § 1101, subd. (a).) However, character evidence is admissible if it is relevant to prove an issue in the case, such as motive, intent, absence of mistake or accident. (Evid. Code, § 1101, subd. (b).) Evidence of prior assaults is relevant to prove intent, ill will and motive. (See, e.g., People v. Linkenauger (1995) 32 Cal.App.4th 1603, 1614.) Evidence that is relevant as proof of a behavior pattern is not inadmissible merely because it also is proof of a prior crime. (People v. Zack (1986) 184 Cal.App.3d 409, 413.)
The proffered evidence must have substantial probative value to be admissible. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404; People v. Balcom (1994) 7 Cal.4th 414, 422, 426.) Probative value goes to the weight of evidence of prior misconduct. Evidence is probative if it is material, relevant and necessary. How much probative value evidence has depends on the extent to which it tends to prove an issue by logic and reasonable inference, the importance of the issue to the case and the necessity of proving that issue by means of this evidence. (People v. Thompson (1980) 27 Cal.3d 303, 318 fn. 20.)
Even if character evidence is probative, a trial court must exclude it if its probative value is substantially outweighed by the likelihood that its admission will create a substantial danger of undue prejudice. (See People v. Ewoldt, supra, 7 Cal.4th at p. 405; see also Evid. Code, § 352.) However, it is important to note that the prejudice which Evidence Code section 352 seeks to avoid is not that naturally flowing from relevant, highly probative evidence. The statute attempts to avoid the prejudging of a case based on extraneous facts. (People v. Zapien (1993) 4 Cal.4th 929, 958, cert. den. sub nom. Zapien v. California (1993) 510 U.S. 919; People v. Escobar (1996) 48 Cal.App.4th 999, 1023.) All evidence relevant to prove the Peoples case is necessarily prejudicial to a criminal defendant accused of a crime, but this ordinary prejudice is not the focus of section 352s balancing test. On appeal, we review the trial courts ruling on the admissibility of the evidence of prior misconduct for an abuse of discretion. (People v. Catlin (2001) 26 Cal.4th 81, 120; see People v. Harrison, supra, 35 Cal.4th at p. 230; People v. Kipp, supra, 26 Cal.4th at p. 1123.)
3. Admissibility of Evidence
Esqueda argues that the evidence that Officer Hepler offered about the domestic violence incident was prejudicial evidence of prior misconduct that had no bearing on any disputed issue at trial. He reasons that the evidence was not material, because the issue of intent to commit the charged crimes was not really in dispute at trial. We find this reasoning to be flawed.
The proffered evidence was probative, for several reasons. Evidence of intent was admissible to prove that if Esqueda committed the alleged offense, he did so with the required intent. Even if the act is conceded, the state of mind may remain at issue. (People v. Ewoldt, supra, 7 Cal.4th at pp. 394 fn. 2, 406; People v. Balcom, supra, 7 Cal.4th at p. 422.) In this matter, the prosecution was required to prove beyond a reasonable doubt that Esqueda had the intent necessary to commit each of the charged crimes and enhancements. (See In re Winship, supra, 397 U.S. at p. 364; see also §§ 20, 149, 245, subd. (b), 417, subd. (a)(2), 12022.5, subd. (a).) By his not guilty plea, Esqueda put in issue all elements of the charged offenses and alleged enhancements, including intent. (See People v. Balcom, supra, 7 Cal.4th at p. 422; People v. Brandon (1995) 32 Cal.App.4th 1033, 1049 fn. 12.) The People were entitled to put on evidence of intent to prove their case-in-chief. (See People v. Ewoldt, supra, 7 Cal.4th at p. 402; People v. Singh (1995) 37 Cal.App.4th 1343, 1380; see also Evid. Code, § 1101, subd. (b).) In our view, intent was a disputed issue on each of the charged offenses and the alleged enhancements brought to the jury for resolution.
Officer Heplers evidence of the domestic violence incident was also relevant to prove that Esqueda used unreasonable or excessive force against Macawile or acted without lawful necessity. The use of excessive force is an element of the misdemeanor brandishing charge against Esqueda, as a peace officer. (§ 417, subd. (a)(2); see pt. II., ante.) A lack of lawful necessity is an element of the two charges of assault under color of authority. (§ 149) Again, the prosecution was required to prove these elements beyond a reasonable doubt. (See In re Winship, supra, 397 U.S. at p. 364; People v. Thompson, supra, 79 Cal.App.4th at pp. 59-60.) The evidence of Esquedas response to the domestic violence incident had a tendency to show that when acting in the course of his duties, he threatened to use force when a citizen failed to respond promptly in a believable manner to his requests for information about a crime. This evidence was relevant to similar issues posed by Esquedas encounter with Macawile.
We also conclude that the evidence was not unduly prejudicial to Esqueda. The evidence of Esquedas conduct during the domestic violence incident was less inflammatory than the evidence of his conduct toward Macawile, for several reasons. First, the verbal threats that Officer Hepler overheard carried less potential for violence than Esquedas use of a firearm against Macawile. Second, the incident about which Officer Hepler testified involved recent violence, while Esquedas questioning of Macawile was about the nonviolent crime of automobile theft. Third, Esquedas verbal threats against a man accused of domestic violence could be viewed by some as a well-intentioned—albeit misguided—act of defending a female victim and child. By contrast, his use of a weapon to counter Macawiles nonviolent resistance did not offer any such possible justification. When the evidence of the prior misconduct is no stronger and no more inflammatory than testimony about the current charge, the potential for prejudice is reduced. (People v. Ewoldt, supra, 7 Cal.4th at p. 405.)
Finally, we note that the jury—far from being inflamed—acquitted Esqueda of one charge and was unable to reach a unanimous verdict in two others. This split verdict suggests that the challenged evidence did not prejudice the jurors, who appear to have carefully considered the evidence when deciding the various issues before them. Under these circumstances, we are satisfied that Officer Heplers testimony was not unduly prejudicial. As the evidence was probative and not unduly prejudicial, the trial court did not abuse its discretion when admitting this evidence. (See, e.g., People v. Kwolek, supra, 40 Cal.App.4th at p. 1533.) Thus, the trial court did not violate Esquedas due process rights in admitting this evidence.
The judgment is affirmed.
We concur:
Ruvolo, P.J.
Sepulveda, J.