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People v. Garcia

California Court of Appeals, Fourth District, Second Division
Mar 17, 2008
No. E040647 (Cal. Ct. App. Mar. 17, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. PEDRO GARCIA, Defendant and Appellant. E040647 California Court of Appeal, Fourth District, Second Division March 17, 2008

NOT TO BE PUBLISHED

APPEAL from the Superior Court of Riverside County. Super. Ct.No. RIF125592 Christian F. Thierbach and Richard Todd Fields, Judges.

David P. Lampkin, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Pamela Ratner Sobeck, Supervising Deputy Attorney General, and Donald A. Jakob, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

HOLLENHORST, Acting P. J.

Following a jury trial, defendant Pedro Garcia was convicted of one count of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c) (count 1)), one count of battery with injury on a peace officer (§ 243, subd. (c)(2) (count 2)), and two counts of obstructing or resisting an executive officer with force and violence (§ 69 (counts 4 and 5)). The jury also returned a special verdict finding defendant committed count 4 when officers entered the residence to take him into custody. Subsequently, defendant admitted that he was previously convicted of four serious or violent felonies (within the meaning of sections 667, subdivisions (c) & (e)(2)(A) and 1170.12, subdivision (c)(2)(A)), and one serious felony (within the meaning of section 667, subdivision (a)(1)). He further admitted that he served a prior prison term within the meaning of section 667.5, subdivision (b). Defendant was sentenced to state prison for a total term of 30 years to life. He appeals.

All further statutory references are to the Penal Code unless otherwise indicated.

I. PROCEDURAL BACKGROUND AND FACTS

A. The Prosecution’s Case

On August 21, 2005, Deputy David Telles of the Moreno Valley Police Department was dispatched to the Vargas home in Moreno Valley in response to a domestic violence call to 911. Mrs. Vargas told Deputy Telles that her husband had pushed her; however, she had no visible physical injuries. She wanted Deputy Telles to talk to her husband about his abusive conduct, but she did not want him arrested. Mrs. Vargas described her husband to Deputy Telles. Mr. Vargas had left the home with friends in a gray SUV. While Deputy Telles was at the home, Mrs. Vargas told Deputy Telles that she had received a phone call from Mr. Vargas. Mrs. Vargas used the caller identification feature on her telephone to show Deputy Telles the number from which Mr. Vargas had called. Deputy Telles traced the number to the residence of Margarita Garcia. Following his conversation with Mrs. Vargas, Deputy Telles informed her that he was going to contact Mr. Vargas.

Mr. Vargas was described as being 23 years old, 260-270 pounds, six feet one inch or six feet two inches in height, with black hair, brown eyes, a mustache and a goatee. Deputy Telles did not recall seeing any pictures of Mr. Vargas in the apartment. Deputy Telles was five feet eight inches in height and 53 years old at the time of the incident.

Deputy Telles, who was wearing a “Moreno Valley Police” uniform and driving a marked black and white patrol car, drove directly to the Garcia home. He did not see a gray SUV, although the house had a three-car garage. Deputy Telles did not have a search warrant, and he did not think that he had enough facts to get one. Nonetheless, he knocked on the front door. Defendant answered. Deputy Telles told defendant that he was looking for “Noah Vargas.” Defendant had a “[b]elligerent, hostile, aggressive” demeanor, and claimed he did not know “a Noah Vargas.” Deputy Telles asked defendant to identify himself, and defendant replied, “‘Fuck you, I don’t have to talk to you. Fuck you, get out of my house.’” Deputy Telles remained standing outside the threshold of the door. He suspected that defendant was lying, thus committing the misdemeanor of delaying or obstructing a police investigation in violation of section 148.

Defendant kept reaching into his right pants pocket. Concerned for his safety, Deputy Telles asked defendant to remove his hand from his pocket. Defendant’s “demeanor” was, “‘F you, I’ll do what I want.’” Defendant turned his back to the deputy and started walking back into the house. Deputy Telles became concerned for his safety. The deputy had his can of pepper spray out and “took one, maybe two steps.” The deputy planned to arrest defendant, but he did not tell defendant that. Defendant made an aggressive turn towards the deputy, raised his fists like a boxer, and began walking towards Deputy Telles in a “rapid movement,” saying, “‘Fuck you, get out of my house.’” Deputy Telles believed defendant was going to hit him and pepper sprayed defendant in the face. Defendant punched the deputy in the left jaw with his right fist.

Deputy Telles backed out of the house and called for emergency backup. Defendant continued to advance on the deputy with both fists swinging. Defendant struck Deputy Telles in the face again, causing him to fall back onto a bench that was on the walkway, breaking the bench. Deputy Telles made a high-priority “1199” emergency call for backup from any agency. Defendant straddled Deputy Telles and continued punching him on top of his head with both fists, at least eight times.

Defendant finally stopped punching Deputy Telles and went back inside the home without closing the door. Deputy Telles took out his gun and followed defendant. The deputy pointed his gun at defendant, who was in the kitchen. Defendant said something to the effect of, “What are you going to do, shoot an unarmed man?” Defendant then picked up an empty five-gallon water bottle and advanced toward Deputy Telles. Deputy Telles backed out of the house. Defendant followed, saying, “Get out of my house.” Defendant threw the water bottle at the deputy from a distance of about 10 feet. Deputy Telles heard sirens. Defendant reentered the house, picked up a 24-inch flower pot filled with plants, turned, and threw the pot towards the deputy’s head and shoulder area. Defendant went into the house and closed the door.

Deputy Juan Valdivias arrived in uniform and a marked patrol car. Deputy Telles kicked in the front door and entered with Deputy Valdivias. Defendant was standing near the threshold with his hands behind his back. When directed to show his hands, defendant hesitated. He then took a boxer stance with fists raised. The officers then directed defendant to “go down to the ground.” Deputy Valdivias had his gun pointed at defendant while Deputy Telles drew his baton. The deputies repeatedly ordered defendant to get on the ground. Defendant refused to comply, saying, “‘F you, F you, get out of my house.’”

Deputy Telles struck defendant on the wrist and shin area with his baton; however, Deputy Telles was unable to swing the baton with full force due to the proximity of the wall. Deputy Valdivias pointed his handgun at defendant, who remained in a fighting stance. Defendant walked toward the kitchen. After more commands to get on the ground, defendant eventually complied. Deputies Telles and Valdivias were holding defendant on the ground when additional officers arrived. They pulled Deputies Telles and Valdivias off defendant and handcuffed defendant. A subsequent search of defendant’s residence revealed Mr. Vargas hiding in the kitchen pantry. Vargas was detained, interviewed, and released.

Deputy Telles was transported by ambulance to the hospital, where he was treated for an injured left jaw, which had swollen extensively, several contusions on the top of his head, a bleeding left ear, facial injuries, and a laceration on the inside of his lip. Deputy Telles experienced pain and numbness in his right arm and thumb a week or two later and he still has pain in his right arm. For a long time, Deputy Telles had trouble eating because his jaw was so sore. Deputy Telles testified that he thought he was going to die that day.

When Deputy Telles was swinging the baton, he accidentally hit the left index finger of Deputy Valdivias. Deputy Valdivias had to have surgery on the finger, resulting in his losing approximately two weeks of work and being placed on light duty for about four months after that.

B. The Defense

Mrs. Vargas testified there were various pictures of herself, her husband, and their children in the living room of their apartment on August 21, 2005.

Defendant’s mother, Margarita Garcia, testified that she was home when Deputy Telles arrived. Mrs. Garcia said that defendant opened the door and Deputy Telles asked for someone. According to her, defendant was not yelling, he backed up after Deputy Telles asked for identification; Deputy Telles entered the home, and defendant gestured with his hand for Deputy Telles to leave. Mrs. Garcia testified that Deputy Telles sprayed defendant in the face with pepper spray, and when defendant went to the kitchen to wash his face, Deputy Telles removed his gun. Mrs. Garcia got scared and went into her room. She then heard screaming from the kitchen.

On cross-examination, Mrs. Garcia admitted that she did not speak English and that defendant and Deputy Telles were speaking in English. She testified that defendant closed the door on Deputy Telles; however, she opened it again. Mrs. Garcia did not recall saying that her son “went crazy” after he was sprayed, but she admitted that it was possible that she had said that. She acknowledged it was possible that she told a neighbor that she did not want to say anything to the police that may get her son in trouble. She told a defense investigator that her son did not want to identify himself to Deputy Telles and that is why he walked away from the door.

II. MOTION TO SUPPRESS

Prior to trial, defendant filed a motion to suppress evidence pursuant to section 1538.5. In the motion, defendant sought to suppress the deputies’ observations and any other evidence following their warrantless entry into defendant’s home on the bases that the entry and resulting detention of defendant were unlawful. The prosecutor opposed the motion, arguing that a defendant cannot seek to exclude evidence of crimes committed against a peace officer based on an allegation of an illegal entry. In the alternative, the prosecutor argued that the entry, detention and arrest of defendant were lawful.

The parties stipulated that the trial court could rule based on the facts as set forth in the motion to suppress and in the Pitchess motion. The trial court concluded that Deputy Telles’s entry into defendant’s home was unlawful. However, the court found that the question of whether the deputies were engaged in the lawful performance of their duties was an element of the offenses to be decided by the trier of fact. The court further noted that any unlawful entry did not immunize defendant from committing subsequent unlawful acts. Thus, the court denied the motion to suppress, citing People v. Gonzalez (1990) 51 Cal.3d 1179, In re Robert D. (1979) 95 Cal.App.3d 767, People v. Henderson (1976) 58 Cal.App.3d 349, and Pittman v. Superior Court (1967) 256 Cal.App.2d 795, in support of its ruling.

Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) (right to discover complaints contained in an officer’s personnel file).

“I am prepared to conclude this was as blatant a violation of the law as I have ever seen. In my opinion, Deputy Telles had absolutely no right, under any theory of law, to be inside that house. [¶] . . . If it were up to me, I would have absolutely no hesitation to conclude [Officer Telles] was not engaged in the lawful performance of his duties.” The court further found: “No exigent circumstances here, either; doesn’t exist.”

On appeal, defendant contends the trial court erred in denying his motion to suppress because the deputies’ observations of the charged offenses were the fruit of an unlawful entry into his house.

“In ruling on a motion to suppress, the trial court must find the historical facts, select the rule of law, and apply it to the facts in order to determine whether the law as applied has been violated. [Citation.] We review the court’s resolution of the factual inquiry under the deferential substantial evidence standard. The ruling on whether the applicable law applies to the facts is a mixed question of law and fact that is subject to independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.) “[W]e view the record in the light most favorable to the trial court’s ruling, deferring to those express or implied findings of fact supported by substantial evidence.” (People v. Jenkins (2000) 22 Cal.4th 900, 969.)

Here, defendant was charged with assault with a deadly weapon on a peace officer engaged in the lawful performance of his duties (§ 245, subd. (c)), battery with injury on a peace officer engaged in the lawful performance of his duties (§ 243, subd. (c)(2)), and preventing with force and violence an executive officer from performing his lawful duties (§ 69). An element in each of the charged crimes was whether the deputies were lawfully performing their duties at the time defendant committed the alleged acts. Regarding that common element, defendant’s jury was instructed with Judicial Council of California Criminal Jury Instructions, CALCRIM No. 2670, which in relevant part provides: “[A peace officer may legally detain someone if [the person consents to the detention or if]: [¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the same suspicion.”

The People argue “there was an engaged-in-duty element in each of the crimes charged against [defendant.] Accordingly, [defendant’s] attempt to remove that issue from the jury through a suppression motion was properly rebuffed by the trial court.” We agree.

In People v. Gonzalez, supra, 51 Cal.3d 1179, the court observed: “California cases hold that although the court, not the jury, usually decides whether police action was supported by legal cause, disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element, since the lawfulness of the victim’s conduct forms part of the corpus delicti of the offense. [Citations.]” (Id. at pp. 1217-1218.)

In People v. Henderson, supra, 58 Cal.App.3d at p. 351, the defendant was convicted of two counts of assault with a deadly weapon on a peace officer. The defendant had fired two gunshots at the officers after they forcibly entered his residence with a search warrant that excused them from a “knock and notice” requirement. The defendant’s suppression motion was denied by the trial court. (Id. at pp. 352-353.) On appeal, our colleagues in Division Four of the Second District held that the lawfulness of the officers’ conduct was a factual issue that should have been submitted to the jury. (Id. at pp. 356-359.) The court explained, “‘[W]hether the peace officer was actually engaged in the performance of his duties is not an evidentiary question or a question of law to be resolved by the trial judge. Rather, it is a question of fact and an essential part of the corpus delicti itself.’ [Citations.]” (Id. at p. 359.)

Here, whether Deputy Telles was engaged in the performance of his duties was part of the corpus delicti of the offenses charged against defendant, and thus, amounted to a question for the jury to decide.

Alternatively, the People argue that the motion to suppress was properly denied because defendant’s “affirmative illegal acts committed subsequent to any unlawful entry cannot be equated to a search, seizure or obtaining of evidence.” We agree. (Pittman v. Superior Court, supra, 256 Cal.App.2d at p. 798 [evidence of assault with a deadly weapon is not inadmissible even if the entry preceding it was illegal]; In re Robert D., supra, 95 Cal.App.3d at p. 772 [subsequent illegal acts dissipate any taint caused by unauthorized police action].) We reject defendant’s “unsound premise that one impropriety by the police gives carte blanche to break the law. Such is not the law generally, nor the law of search and seizure specifically.” (Ibid.)

Because the question of whether the deputies were in the lawful performance of their duties was an element of all charged offenses to be decided by the jury, and because any unlawful entry did not immunize defendant from his subsequent criminal acts, we find no error in the trial court’s decision to deny defendant’s motion to suppress.

III. INSTRUCTIONAL ERROR

The jury was instructed on the elements of (1) assault with a deadly weapon on a peace officer (CALCRIM No. 860); (2) battery against a peace officer causing injury (CALCRIM No. 945); and (3) resisting an executive officer with force and violence on a theory of resisting (CALCRIM No. 2652) and preventing/deterring theory (CALCRIM No. 2651). The jury was also instructed with CALCRIM No. 2670 (Lawful Performance: Peace Officer) and CALCRIM No. 3475 (Right to Eject Trespasser from Real Property). Defendant claims that CALCRIM Nos. 2670 and 3475 were defective and that they affected the elements of the charged offenses, which resulted in a denial of due process. Specifically, defendant argues that CALCRIM No. 2670 (1) failed to tell the jury to consider the gravity of the underlying offense in determining whether an exigency existed for a warrantless entry; (2) failed to include the notice and demand provision of section 844; and (3) failed to state that third-party consent is ineffective against an objecting cotenant. Regarding CALCRIM No. 3475, defendant argues that it failed to extend the right to eject trespassers to the curtilage of the property as well as the home.

The People note that the trial court instructed the jury with CALCRIM Nos. 2670 and 3475 pursuant to defense counsel’s request, and defense counsel did not object to either instruction. The People claim defendant’s objections were therefore forfeited. (See People v. Arias (1996) 13 Cal.4th 92, 170-171 [defendant’s failure to request clarifying instruction waived claim of error].) Although this court “may review any instruction given even though no objection was made in the lower court if the substantial rights of the defendant are affected,” (People v. Arredondo (1975) 52 Cal.App.3d 973, 978; § 1259) we note that any claim that the trial court should have given an amplifying or clarifying instruction may be waived by failure to object. (People v. Horning (2004) 34 Cal.4th 871, 909.) To the extent defendant’s claim is based on an amplifying or clarifying instruction, it is waived. Otherwise, we will consider defendant’s issues on the merits.

To begin with, as the People point out, “[w]hether instructions are correct and adequate is determined by consideration of the entire charge to the jury.” (People v. Holt (1997) 15 Cal.4th 619, 677.) “‘“The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole.”’ [Citation.]” (People v. Castillo (1997) 16 Cal.4th 1009, 1016.)

A. CALCRIM No. 2670

CALCRIM No. 2670 provides:

“The People have the burden of proving beyond a reasonable doubt that __________ was lawfully performing (his/her) duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of ___________.

“A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention).

“<A. Unlawful Detention>

“[A peace officer may legally detain someone if [the person consents to the detention or if]:

“1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime;

“AND

“2. A reasonable officer who knew the same facts would have the same suspicion.

“Any other detention is unlawful.

“In deciding whether the detention was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she detained the person.]

“<B. Unlawful Arrest>

“[A peace officer may legally arrest someone [either] (on the basis of an arrest warrant/ [or] if he or she has probable cause to make the arrest).

“Any other arrest is unlawful.

“Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.

“In deciding whether the arrest was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she arrested the person. [¶] . . . [¶]

“[In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer's presence.] [¶] . . . [¶]

“[In order for an officer to lawfully arrest someone for (a/an) (felony/ [or] _________________) . . . without a warrant, the officer must have probable cause to believe the person to be arrested committed (a/an) (felony/ [or] _____________) . . . . However, it is not required that the offense be committed in the officer’s presence.]

“_________________ . . . is (a/an) (felony/misdemeanor/infraction). [¶] . . . [¶]

“[In order for an officer to enter a home to arrest someone without a warrant [and without consent]:

“1. The officer must have probable cause to believe that the person to be arrested committed a crime and is in the home;

“AND

“2. Exigent circumstances require the officer to enter the home without a warrant.

“The term exigent circumstances describes an emergency situation that requires swift action to prevent (1) imminent danger to life or serious damage to property, or (2) the imminent escape of a suspect or destruction of evidence.]

“[The officer must tell that person that the officer intends to arrest him or her, why the arrest is being made, and the authority for the arrest. [The officer does not have to tell the arrested person these things if the officer has probable cause to believe that the person is committing or attempting to commit a crime, is fleeing immediately after having committed a crime, or has escaped from custody.] [The officer must also tell the arrested person the offense for which he or she is being arrested if he or she asks for that information.]]]

“<C. Use of Force>

“[Special rules control the use of force.

“A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense.

“[If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force. [However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him.]]

“If a peace officer uses unreasonable or excessive force while (arresting or attempting to arrest/ [or] detaining or attempting to detain) a person, that person may lawfully use reasonable force to defend himself or herself.

“A person being arrested uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer’s use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.]” (CALCRIM No. 2670.)

1. Gravity of the offense

Defendant claims that an important factor to be considered when determining whether any exigency exists is the gravity of the underlying offense for which the arrest is being made. The People agree (Welsh v. Wisconsin (1984) 466 U.S. 740, 753); however, the People argue that CALCRIM No. 2670 did not preclude the jury from considering that factor. Specifically, the People point out that the instruction “twice told the jurors to consider ‘all the circumstances known by the officer. . . .’” Thus, the People contend that “[i]t would have been obvious to any juror that the seriousness of the crime Telles was investigating was a ‘circumstance’ to consider as to his warrant less entry into the home.” We agree.

Nonetheless, defendant counters that (1) “the admonitions to consider ‘all the circumstances known by the officer’ do not refer to the determination of exigent circumstances,” and (2) “the instruction directs the jurors to consider specific factors in deciding whether exigent circumstances exist, and the gravity of the offense is not among them.” However, defendant never requested an amplifying or clarifying instruction that would have addressed the gravity of the offense being investigated. As such, he has waived his complaints on appeal.

Nonetheless, the record shows that the jury was directed to consider the circumstances known by the officer. In closing argument, the prosecutor noted, “What did . . . Deputy Telles know when he was standing at that door? Number one, a crime had been committed. Marcia Vargas called 911, she said her husband pushed her against the wall by her throat, and Marcia Vargas told Deputy Telles exactly what her husband Noah Vargas did. [¶] So . . . Deputy Telles . . . knows a crime had been committed . . . . [¶] He knows that Noah Vargas is inside of that residence.” Clearly, the jury considered this information and found against defendant.

2. Section 844

Defendant also claims that it is important for the jury to be informed that lawfulness includes compliance with the notice and demand provisions of section 844. Section 844 requires a demand for admittance and explanation of purpose in order for a peace officer to break open a door or window of a residence to effect an arrest. (§ 844) Again, defendant failed to request an amplifying or clarifying instruction that would have addressed the requirements of section 844. As such, he has waived any complaint on appeal.

3. Third-party consent

Finally, regarding CALCRIM No. 2670, defendant asserts the instruction fails to state that consent to enter the home given by one cotenant to the officer is ineffective against another cotenant who is present and objects to the officer’s entry. The People counter by arguing that defendant’s “mother never consented to any entry into the house. She merely testified that she opened the door or directed [defendant] to open the door to see what the deputy wanted. Indeed, Telles did not even speak to [defendant’s] mother, and was apparently unaware of her presence.” Thus, the People argue that consent was not an issue in the trial. We agree. As the record shows, neither the prosecution nor the defense argued the issue of the mother’s consent. Because there was no evidence that defendant’s mother did more than open the door or tell defendant to open the door to see what Deputy Telles wanted, there was no evidentiary basis for defendant’s proposed third-party consent addendum to CALCRIM No. 2670. (People v Curtis (1994) 30 Cal.App.4th 1337, 1355 [“A trial court has no duty to instruct the jury on a defense — even at the defendant’s request — unless the defense is supported by substantial evidence”].)

B. CALCRIM No. 3475

Recognizing that Deputy Telles could be considered a trespasser, the jury was instructed on the definition of trespasser (CALCRIM No. 2932) and an occupant’s right to eject a trespasser by force (CALCRIM No. 3475). CALCRIM No. 3475 provides:

“The (owner/lawful occupant) of a (home/property) may request that a trespasser leave the (home/property). If the trespasser does not leave within a reasonable time and it would appear to a reasonable person that the trespasser poses a threat to (the (home/property)/ [or] the (owner/ [or] occupants), the (owner/lawful occupant) may use reasonable force to make the trespasser leave.

Reasonable force means the amount of force that a reasonable person in the same situation would believe is necessary to make the trespasser leave.

“[If the trespasser resists, the (owner/lawful occupant) may increase the amount of force he or she uses in proportion to the force used by the trespasser and the threat the trespasser poses to the property.]

“When deciding whether the defendant used reasonable force, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed.

“The People have the burden of proving beyond a reasonable doubt that the defendant used more force than was reasonable. If the People have not met this burden, you must find the defendant not guilty of ______<insert crime>.” (CALCRIM No. 3475.)

Defendant complains that this instruction, as given to the jury, was misleading because it suggested that the right extends only to the interior of the home. Although the pattern instruction provides optional terminology, stating that the occupant “may request that a trespasser leave the (home/property),” the court instructed using only the word “home.” Given the facts in this case, defendant claims error. In support of his contention, he cites case law from West Virginia, Alabama and South Carolina. As the People point out, the only California authority upon which defendant relies is a 60-year-old case, People v. Corlett (1944) 67 Cal.App.2d 33, 53 (Corlett) (disapproved of on other grounds in People v. Carmen (1951) 36 Cal.2d 768, 775), wherein the court stated: “There is authority which may support the contention that the right to use necessary force in defense of the habitation or ‘castle’ also extends to the curtilage which includes the outer buildings, such as bunkhouses. [Citations.] There is, however, a conflict of authorities as to whether the rule which authorizes necessary defense against threatened injury to the habitation also extends to the curtilage. Certainly the same necessity for defending the habitation and the members of the family therein does not exist to the same extent with respect to remote outbuildings in which no members of the family reside. Moreover, not even the ‘castle’ is entirely exempt from the application of the law. The lord of the manor may not ruthlessly or brutally assault his guest or an employee because, forsooth, he does not like him. If he desires to eject one he may use only the force necessary to do so, and that only after fair warning to depart. He is certainly not entitled to use force and violence against one who is not likely to injure or destroy the property. It is apparent that the curtilage is not as sacred in the eyes of the law as is the ‘castle.’”

Given the language in Corlett, supra, 67 Cal.App.2d at page 53, the People argue, “There is no California authority for [defendant’s] contention that the right to expel trespassers with force extends to the curtilage of one’s property.” The People also argue that “even if California law allowed the use of force to eject trespassers from the property beyond the house, CALCRIM No. 3475 did not preclude the jury from finding such [because] [t]he instruction is entitled ‘RIGHT TO EJECT TRESPASSER FROM REAL PROPERTY.’” We agree.

Other than Corlett, our research has not produced, nor has defense counsel provided, any California authority directly on point. Looking at the closing arguments of both counsel, we note that neither side was specific about the area that CALCRIM No. 3475 encompassed. Instead, in this appeal, defendant for the first time argues that CALCRIM No. 3475 is incomplete because it failed to inform the jury that the right to defend real property extends to the curtilage. However, based on the Corlett case, CALCRIM No. 3475 is correct in the law. “‘“‘“[I]f the court gives an instruction correct in law, but the party complains that it is too general, lacks clarity, or is incomplete, he must request the additional or qualifying instruction in order to have the error reviewed.”’”’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 757.) This rule applies in this case. CALCRIM No. 3475 was proper, and any claim of error is waived. (People v. Sully (1991) 53 Cal.3d 1195, 1218.)

IV. MOTION FOR MISTRIAL BASED UPON THE COURT REPORTER’S DISCLOSURE OF SIDEBAR COMMENTS

During pretrial in limine motions, the trial court granted a defense motion to exclude photographs of defendant’s body, including his tattoos, unless defendant should testify that he was injured and the photographs were admitted to impeach that testimony.

During direct examination, Deputy Telles testified that he asked defendant whether defendant was on probation or parole. When asked why, Deputy Telles replied, “When I contacted him, he was not wearing a shirt, and he had a lot of — based on my training and experience — .” Defense counsel interrupted the answer and requested a sidebar conference. At sidebar, the court indicated its concern that Deputy Telles was about to mention defendant’s gang tattoos. The prosecutor believed Deputy Telles was going to infer they were tattoos associated with criminal behavior. The court subsequently excused the jury so that it could determine how Deputy Telles intended to testify and so that it could properly admonish him as to what he could not say in front of the jury.

Outside the presence of the jury, the prosecutor and the court questioned Deputy Telles as follows:

“Q (By [the prosecutor]) Deputy Telles, when I asked you the question with regard to tattoos, you described seeing the defendant had certain tattoos?

“A Correct.

“Q What were you going to say was the impact that seeing those tattoos had on your state of mind?

“A Knowing that they did not have any color other than the color black, to me, that lets me believe that they are prison-type tattoos. That is why I made a question, ‘Are you on probation or parole?’

“THE COURT: And that was just because the tattoos only had the color black?

“THE WITNESS: Predominantly, Your Honor. He was not wearing a shirt, and I did not see any commercial-bought tattoos on him. Since most of the prison tatts are done illegally in the prison system, they are only black.

“I’ve worked in the jail many times.

“THE COURT: Some of those could be done at the county jail; right?

“THE WITNESS: Very true, Your Honor.

“THE COURT: Right.

“Okay. Let me have you go ahead and step out for a minute.”

The trial court ruled that the opinions of Deputy Telles about the tattoos were inadmissible for lack of foundation and because the prejudicial effect outweighed the probative value. However, the court held it was appropriate to ask whether Mrs. Vargas described her husband as having any tattoos since it went to the issue of identity. The court also permitted the prosecutor to show a photograph of defendant’s chest, which depicted “more artistic” tattoos that were not prison or gang-related. Deputy Telles was allowed to testify that he asked defendant about his parole or probation status. The deputy was not allowed to make any reference to the meaning of defendant’s tattoos; however, he could mention them if specifically asked about them.

During deliberation, the jury requested a read back of Deputy Telles’s testimony concerning events after defendant opened the door. The court reporter was directed to provide the read back. Subsequently the court reporter notified the court that she had inadvertently included a portion of Deputy Telles’s testimony during the sidebar conference in her read back. She specifically read the following two questions and answers to the jury:

“‘Deputy Telles, when I asked you the question with regard to tattoos, you described seeing the defendant had certain tattoos?[’]

“‘Answer: Correct.’

“Next question:

“‘What were you going to say was the impact that seeing those tattoos had on your state of mind?[’]

“‘Answer: Knowing that they did not have any color other than the color black, to me that lets me believe that they are prison-type tattoos. That is why I made a question “are you on probation or parole?”’”

The court noted that it had two possible courses of action, namely, declaring a mistrial or admonishing the jury. Defense counsel requested a mistrial, and the prosecutor argued that a curative admonition would suffice.

Later in the day, the trial court struck the tattoo testimony and read the following to the jury: “Ladies and gentlemen, I’m going to give you an admonishment at this time. I want you to listen very carefully to this admonishment from the Court. [¶] The reporter read to you a question asked a witness outside the presence of the jury regarding the impact on the officer, of seeing the tattoos, on his state of mind. The officer made some reference that he believes they are prison type tattoos. [¶] You are to disregard the question and the answer given. You are not to consider it at all for any purpose whatsoever in this trial. [¶] First, there has been no evidence introduced in this case whatsoever that the defendant has been in prison. [¶] Second, there is no evidence whatsoever that any tattoos the defendant may have are prison tattoos. [¶] Third, the Court specifically found that there was not a proper basis for this statement and ordered it excluded. Therefore, you must disregard it completely. [¶] Does everyone understand?” The court then asked each and every juror if he or she understood the admonition. Each juror stated that he or she understood.

On appeal, defendant contends the trial court abused its discretion in denying his request for mistrial and choosing to admonish the jury. “There is little doubt exposing a jury to a defendant’s prior criminality presents the possibility of prejudicing a defendant’s case and rendering suspect the outcome of the trial. [Citations.] [¶] Whether in a given case the erroneous admission of such evidence warrants granting a mistrial or whether the error can be cured by striking the testimony and admonishing the jury rests in the sound discretion of the trial court. [Citation.] ‘“A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.” [Citation.] . . . .’” (People v. Harris (1994) 22 Cal.App.4th 1575, 1580-1581.)

A witness’s unanticipated reference to a defendant’s past criminality may be cured by an appropriate admonition. In People v. Avila (2006) 38 Cal.4th 491 (Avila), the defendant, his cousin Richard, and two accomplices murdered two women. One of the accomplices, Rodriguez, testified for the prosecution. Before Rodriguez testified, the court admonished him not to refer to the parole status or criminal convictions of any of the defendants. However, once on the stand Rodriguez testified that after the murders, Richard told him not to say anything because the defendant had “barely got out of prison” and would kill him. (Id. at pp. 571-572.) The trial court admonished the jury not to consider the testimony but denied the defendant’s motion for a mistrial. (Id. at p. 572.) The Supreme Court held that “the trial court did not abuse its discretion in denying the mistrial motion. As for the portion of Rodriguez’s testimony referring to defendant recently having been in prison, the court admonished the jury not to consider it for any purpose. . . . We presume the jury followed the court’s instructions. [Citation.]” (Id. at 574.)

Notably, the comment in Avila, supra, 38 Cal.4th at pp. 571-572, that the defendant had “barely got out of prison” was considerably more prejudicial than Deputy Telles’s belief that defendant had “prison-type tattoos.” The comment in Avila revealed to the jury that the defendant had been sent to prison in the very recent past and that he had only been out for a short time before he allegedly committed three murders. The comment here only revealed a witness’s opinion about what type of tattoos defendant had, or as the People observe, “Telles’s musings about what the tattoos meant.” The Supreme Court’s holding in Avila that the comment could be cured by an admonition a fortiori supports the conclusion that the comment here likewise could be cured. (Avila, supra, at p. 574.)

Moreover, we note the trial court did not simply admonish the jurors not to consider the tattoo testimony, it explained why the testimony was inadmissible and unreliable. The court emphasized that “no evidence whatsoever” had been introduced that defendant had been in prison or that he may have prison tattoos. Furthermore, the court stated that it had “specifically found that there was not a proper basis for this statement and ordered it excluded. Therefore, you must disregard it completely.” Each juror confirmed his and her understanding of the court’s admonishment. We presume the jurors followed all of the trial court’s instructions. (People v. Osband (1996) 13 Cal.4th 622, 714.)

Given the record before this court, we cannot say that it was an abuse of discretion to deny defendant’s request for a mistrial. The trial court’s strong admonition discrediting Deputy Telles’s testimony regarding defendant’s tattoos was sufficient to remedy any prejudice arising from the court reporter’s error.

V. SECTION 654

The trial court imposed three concurrent terms of 25 years to life on counts 1 (assault with a deadly weapon on a peace officer), 2 (battery with injury on a peace officer), and 4 (obstructing or resisting an executive officer with force and violence), each of which involved Deputy Telles. Defendant contends the concurrent terms on counts 2 and 4 violate section 654 and must be stayed. We agree.

Whether multiple convictions should be stayed pursuant to section 654 is primarily a factual question which will not be disturbed on appeal if supported by substantial evidence. (People v. Martin (2005) 133 Cal.App.4th 776, 781.) “[W]e consider the evidence in the light most favorable to [the People] and presume the existence of every fact the trier could reasonably deduce from the evidence.” (Ibid.) Section 654 prohibits multiple punishments “for the same ‘act or omission.’” (People v. Reed (2006) 38 Cal.4th 1224, 1227, quoting § 654.) Section 654, subdivision (a), states as follows: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.” The purpose of section 654 is to ensure punishment is commensurate with culpability. (People v. Latimer (1993) 5 Cal.4th 1203, 1211.)

Section 654 “applies not only where there was but one act in the ordinary sense, but also where there was a course of conduct which violated more than one statute but nevertheless constituted an indivisible transaction. [Citation.] Whether a course of conduct is indivisible depends upon the intent and objective of the actor. [Citation.] If all the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. [Citation.]” (People v. Perez (1979) 23 Cal.3d 545, 551.)

Here, at the sentencing hearing, the trial court announced its tentative decision to impose concurrent terms of 25 years to life on each of counts 1, 2, 4 and 5 and stated its reasons for choosing concurrent sentencing. Regarding counts 1 and 2, the court found that the crimes and their objectives were not predominantly independent of each other because “[a]ll of this was assaultive behavior upon this officer. Same objective and same incident.” The court found “the crimes were committed so closely in time, they definitely manifest a single period of abhorrent behavior.”

Discussing count 4, the court found that although it was a separate threat of violence, it was “closely related in time, and all really related to the same transaction overall. And the crimes in this case were committed so closely in time and place as to indicate a single period of abhorrent behavior. It wasn’t like this was one thing happened in one location, one thing happened in the second location where there was some period of extensive reflection. It was basically one ongoing event. [¶] And once the first event happened, only reason for any delay, once the officer was knocked out of the house and attacked outside, the defendant went back in the house and closed the door, and the officer broke back into the house. That’s the only reason for any separation of time and place. [¶] So I think that the offenses are committed so closely in time as to indicate a single period of abhorrent behavior.” In sum, the trial court stated: “[I]t does not appear the crimes and objectives were predominantly independent of each other.”

Given the record before this court, coupled with the trial court’s findings, we agree with defendant that a stay of sentence on counts 2 and 4 is appropriate under section 654 because counts 1, 2 and 4 were committed as part of an indivisible transaction having a single objective — resisting Deputy Telles. Accordingly, we will stay execution of the sentences imposed on counts 2 and 4, and direct that the abstract of judgment be amended accordingly.

VI. PITCHESS MOTION

Defendant filed a Pitchess motion seeking to disclose any complaint of “excessive force, aggressive conduct, unnecessary violence, unnecessary force, false statements in reports, false claims of arrest, false claims of probable cause, misstatements in police report[s], as well as any information regarding the character, habits, customs and credibility” against Deputies Telles and Valdivias. The motion was supported by the declaration of defense counsel. If the trial court decides that the defendant has a showing of good cause, all “‘potentially relevant’” evidence will be brought forth and reviewed by the court. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) The review of the materials takes place outside the presence of everyone but the court and the possessor of the materials, so as to protect the privacy of the officers as much as possible. (Id. at pp. 1226-1227.) After review, the court orders only relevant information released to defendant. (Id. at p. 1227.) The court shall keep a record of those items viewed to preserve appellate review of the Pitchess motion. (People v. Mooc, supra,at pp. 1227-1228.)

Here, the trial court (Judge Thierbach) held a hearing on the motion on March 3, 2006, and found “a prima faci[e] showing that the materials sought may be discoverable, at least enough to conduct an in[]camera hearing.” The court then conducted an in camera review of the personnel files of the deputies. After the review, the court stated its conclusion that there was no discoverable material. The transcript of the in camera hearing was order sealed.

On appeal, defendant requests this court to review the sealed records relating to his Pitchess motion in order to determine if the trial court abused its discretion in refusing to disclose the requested information. The People offer no objection to defendant’s request.

While there is no formalized statutory procedure for reviewing a lower court’s determination on the disclosure of complaints made against law enforcement on appeal, People v. Mooc, supra, 26 Cal.4th at pp. 1227-1228, states that a trial court should keep a record of those items viewed to preserve appellate review of the Pitchess motion. No such record has been provided to this court. Instead, we have only been provided with the reporter’s transcript, which contains the trial court’s statement that it has conducted an in camera review of the personnel files of the deputies and has found “no discoverable material.”

“It is axiomatic that it is the burden of the appellant to provide an adequate record to permit review of a claimed error, and failure to do so may be deemed a waiver of the issue on appeal. [Citations.]” (People v. Akins (2005) 128 Cal.App.4th 1376, 1385.) Here, the record is insufficient for us to determine whether the trial court properly exercised its discretion in denying discovery because there is no record of those items viewed by the trial court. There are no documents contained in the record on appeal, nor did the trial court state for the record the contents of the deputies’ files which it reviewed. Given the absence of an adequate record, we are unable to consider this issue on appeal. We therefore decline to do so.

VII. ABSTRACT OF JUDGMENT CORRECTION

The People contend, and defendant concedes, that the minutes and the abstract of judgment must be corrected to reflect the restitution and parole revocation fines. (§ 1252, 1260; People v. Mesa (1975) 14 Cal.3d 466, 471.) The trial court orally imposed a $200 restitution fine and imposed and stayed a $200 parole restitution fine. The minute order of the sentencing hearing and the abstract of judgment fail to reflect these fines. We therefore order that the minutes and the abstract of judgment be corrected to reflect the restitution and parole revocation fines.

VIII. DISPOSITION

The abstract of judgment is to be amended to stay execution of the sentences imposed on counts 2 and 4 pursuant to section 654, and to correctly reflect the restitution and parole revocation fines imposed by the trial court. In all other respects, the judgment is affirmed.

We concur: GAUT, J., MILLER, J.


Summaries of

People v. Garcia

California Court of Appeals, Fourth District, Second Division
Mar 17, 2008
No. E040647 (Cal. Ct. App. Mar. 17, 2008)
Case details for

People v. Garcia

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PEDRO GARCIA, Defendant and…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Mar 17, 2008

Citations

No. E040647 (Cal. Ct. App. Mar. 17, 2008)