Opinion
B227251
01-23-2012
THE PEOPLE, Plaintiff and Respondent, v. ANDRES HERNANDEZ, Defendant and Appellant.
Tracey A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BA361464)
APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Champagne, Judge. Affirmed.
Tracey A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Andres Hernandez appeals from a jury verdict convicting him of assault upon a peace officer with force likely to produce great bodily injury, a violation of Penal Code section 245, subdivision (c), and resisting an executive officer, a violation of section 69. He contends the court erroneously excluded relevant character evidence of the injured police officers and failed to instruct the jury sua sponte on an element of the crime. We find no error and affirm the judgment.
All further code citations are to the Penal Code, unless otherwise indicated.
FACTUAL AND PROCEDURAL SUMMARY
On August 30, 2009, Los Angeles Police Department Officers Alfred Garcia and Chuck Wampler saw a double-parked vehicle in front of a residence in violation of Vehicle Code section 22500, subdivision (h). As they pulled over, they saw a group of people drinking beer on the sidewalk, including appellant and his brother Javier Hernandez. The officers exited their car and approached the group, intending to issue citations for the double-parked vehicle and for the public consumption of alcohol in violation of Los Angeles Municipal Code section 41.27, subdivisions (c) and (h). As they approached, appellant and Javier put down their beer cans and walked into the front yard. Officer Garcia testified that he saw Javier put his hands in his waistband area, which led Officer Garcia to believe that Javier might be armed.
The trial court took judicial notice of this section, the prosecution introduced it as an exhibit, and a detective read it to the jury: "No person shall drink any . . . liquor . . . upon any street, sidewalk . . . or in any public place . . . , which premises are not licensed for the consumption of such liquor on the premises. . . . [¶] . . . No person shall have in his or her possession, with intent to consume any part of the contents thereof . . . , any bottle, can or other receptacle containing any alcoholic beverage which has been opened, . . . upon any street, sidewalk, . . . or any public place, . . . which premises are not licensed for the consumption of such alcoholic beverage on the premises. Any person violating any of the provisions of this subsection shall be guilty of an infraction."
People in the yard, including appellant, began to yell at the officers, telling them to leave the property. The officers requested that appellant and Javier return to the sidewalk so that the officers could issue citations. Neither did; both continued to yell at the officers. Officer Wampler called for additional officers.
Daniel Hernandez, another brother of appellant, sprayed Officer Wampler with water from a garden hose he was holding. Officer Wampler believed this constituted a battery, and told Daniel to put the hose down and put his hands behind his back. Daniel put down the hose but sat on the porch and refused to comply with attempts to arrest him.
Officers Chris Ercolano and Bryan Goland were in the units that responded to Officer Wampler's request for support. Officer Ercolano attempted to assist with the arrest of Daniel, but during the struggle, Daniel and two other officers fell into an inflatable pool in the front yard. Officers pepper sprayed Daniel and used "hand strikes" to subdue and detain him.
As this was occurring, appellant approached the officers and yelled at them to leave his brother alone. Officer Garcia ordered appellant to back up, but he did not comply. Officer Garcia pushed him back. Appellant approached again and Officer Ercolano pushed him back. Appellant then picked up a wooden folding chair and threw it at the officers. The chair struck Officer Ercolano in the face and Officer Goland in the arm. Officer Ercolano sustained a nose fracture and Officer Goland had an abrasion on his forearm.
Appellant was charged in counts 1 and 4 with assault upon a peace officer with force likely to produce great bodily injury as to Officers Ercolano and Goland (§ 245, subd. (c)), in counts 2 and 5 with battery with injury on a peace officer (§ 243, subd. (c)(2)), and in count 3 with resisting an executive officer as to Officer Ercolano (§ 69). Appellant also was charged with use of a deadly or dangerous weapon in counts 1 and 2 (§ 12022, subd. (b)(1)), a serious felony under section 1192.7, subdivision (c)(23). The prosecution dismissed counts 2 and 5 during closing arguments.
Appellant pleaded not guilty. His defense was that the officers were not lawfully performing their duties and he was entitled to defend himself in response to their excessive use of force. Appellant's witnesses claimed he and others were drinking beer in their driveway and front yard, not the sidewalk. They said the officers came into the yard and pepper sprayed Daniel after he accidentally splashed water from the hose on Officer Wampler, then officers forced Daniel into the inflatable pool where his head was held under water and he was punched and kicked in the face.
Appellant was found guilty by jury verdict on counts 1, 3, and 4. The jury found true the allegation that appellant used a deadly and dangerous weapon, but found the allegation that he inflicted great bodily injury on Officer Ercolano to be not true. This timely appeal followed.
DISCUSSION
I
Appellant contends the trial court erroneously limited the scope of testimony he sought to introduce from two individuals, Joseph Kensey and Ricky Pickett, who claimed Officers Goland, Garcia, and Ercolano had effectuated false arrests or used excessive force on other occasions. We review the court's evidentiary rulings for abuse of discretion. (People v. Jablonski (2006) 37 Cal.4th 774, 805.)
The identities of these two witnesses were disclosed by the prosecution after appellant's motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
When a defendant is on trial for violating sections 245 and 69—both of which require the officer to be engaged in the lawful performance of his or her duties—evidence of the officer's past use of excessive force goes to show that he or she acted "in character" during the incident in question. (People v. Castain (1981) 122 Cal.App.3d 138, 142.) This is codified in Evidence Code section 1103, subdivision (a), which allows an accused claiming self-defense to offer evidence "of the character or a trait of character . . . of the victim of the crime for which the defendant is being prosecuted" to prove "conduct of the victim in conformity with the character or trait of character." The defendant may offer reputation, opinion, or specific acts evidence to show the police officer's character. (Evid. Code, § 1103, subd. (a)(1).)
In support of appellant's claim that Officers Goland, Garcia, and Ercolano were not lawfully performing their duties when appellant allegedly assaulted and resisted Officers Goland and Ercolano, appellant sought to introduce testimony from Kensey and Pickett. They would testify to specific acts in which the officers allegedly had effectuated false arrests or used excessive force to show the officers acted in character when appellant was arrested.
The court conducted an Evidence Code section 402 hearing to determine the admissibility of the evidence. Pickett testified that Officer Goland falsely arrested him for associating with a known gang member, resulting in proceedings to revoke his parole. Officer Goland testified at Pickett's parole hearing, but parole was not revoked since the gang member Officer Goland claimed Pickett associated with was incarcerated.
Kensey testified that he was taking out his garbage when Officer Garcia arrested him and said he was being charged with jaywalking and disturbing the peace. Kensey was in jail for two days, but no criminal charges were filed.
Kensey testified that in another instance, Officer Ercolano's partner "snatched" him from a parked car and Officer Ercolano put his knee on Kensey's back, applying heavy pressure. Officer Ercolano told Kensey he was arrested because the van's registration had expired. Kensey was released and no charges were filed.
Appellant contends the court limited the witnesses' testimony to the officers' credibility and veracity, and excluded testimony about past instances when the officers used excessive force or falsely detained and arrested a suspect. However, this claim is not supported by the record.
As to Pickett's testimony, appellant's attorney offered that he would "render an opinion that the officer [wa]s dishonest in a legal proceeding against him. You heard him testify that he was not in the company of anybody and that was the basis for the [parole violation]." The court ruled "he can say he thinks Goland was not telling the truth about the circumstances of his arrest in association with gang members, even though he is on parole with gang conditions, at that time he was not with any gang members." The court excluded Pickett's testimony about the decision of the parole board to not revoke his parole since there was no evidence showing the basis for the board's decision. Appellant's attorney said, "[t]hat is agreeable to me." Any claim of error has been forfeited since appellant's attorney did not object to the court's ruling or make any arguments about why Pickett's testimony should have been admitted on some other ground.
As to Kensey's allegations against Officer Garcia, at the evidentiary hearing Kensey testified about the circumstances of his arrest and his belief that he was falsely arrested. He did not testify that Officer Garcia used force and appellant's counsel did not argue that his testimony should be admitted on this or any other ground besides the alleged false arrest. Any claim of error was forfeited.
As to Officer Ercolano, appellant's attorney offered that Kensey's testimony was relevant to show that Ercolano was untruthful and used excessive force. While the court initially warned counsel to limit the inquiry to veracity, it later indicated that it would be proper for Kensey to testify about excessive force. The prosecutor objected to counsel's offer on excessive force, saying that Kensey had not testified to any excessive force by Ercolano. The court replied, "[h]e said Officer Ercolano falsely detained him . . . and then somebody used excessive force. . . . Later, he said he was angry at Ercolano because he put a knee in [Kensey's] back."
Even if these statements could be interpreted as limiting the scope of Kensey's testimony, Kensey did testify to the detention and use of force during trial. Appellant's attorney asked, "Did Officer Ercolano use any force against you?" Kensey answered in the affirmative, saying Officer Ercolano "put his knee in the middle of my back and was applying heavy pressure to my back." Kensey stated this act was unprovoked.
Accordingly, we find no error with respect to the court's evidentiary rulings on the scope of these witnesses' testimony since the rulings mirrored the substance of the witnesses' testimony during the hearing and of counsel's offers of proof.
Appellant also argues the court improperly sustained a number of the prosecutor's objections to direct examination questions posed by appellant's attorney to Pickett and Kensey. These sustained objections, appellant contends, improperly narrowed the scope of the testimony appellant was allowed to present. As we have discussed, appellant's attorney offered that Pickett would testify as to Goland's false arrest, and Kensey would testify as to Garcia's false arrest and Ercolano's use of excessive force. The jury heard this evidence. At trial, the jury heard Pickett testify that he was arrested by Goland but not told the reason for his arrest. Pickett later learned Goland alleged Pickett was "hanging around" a known gang member, Stephan White, in violation of the terms of his parole. Pickett contested this because White was incarcerated at the time so it was impossible for Picket to be in his presence at the time he was arrested. Based on this experience, Pickett did not believe Goland to be truthful.
At trial, Kensey testified that he was taking his garbage to the dumpster when Officer Garcia arrested him without cause. On another occasion, without justification, Officer Ercolano's partner "snatched" Kensey from a car and Officer Ercolano put his knee on Kensey's back while applying heavy pressure. Thus, the scope of these witnesses' testimony at trial was the same as the scope of their testimony during the Evidence Code section 402 hearing and of defense counsel's offer of proof.
To the extent appellant seeks review of the court's individual evidentiary rulings during the direct examination of Kensey and Pickett, appellant fails to meaningfully analyze any claims, and on the whole does not cite to relevant authority. We consider any claims of error forfeited. (See People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11.)
The only claim analyzed and supported by authority is that the court improperly sustained the prosecutor's objections to leading questions on direct examination. Appellant contends leading questions were permissible here because there was little danger of improper suggestion.
"A 'leading question' is a question that suggests to the witness the answer that the examining party desires." (Evid. Code, § 764.) Evidence Code section 767, subdivision (a)(1) provides that "[e]xcept under special circumstances where the interests of justice otherwise require: [¶] . . . a leading question may not be asked of a witness on direct or redirect examination." "Trial courts have broad discretion to decide when such special circumstances are present. [Citations.]" (People v. Williams (1997) 16 Cal.4th 635, 672.)
Appellant's trial counsel did not claim that special circumstances existed which would allow him to ask leading questions of appellant's own witnesses. Here, appellant also makes no argument as to why this exception should have applied, other than his claim that there was little danger of improper suggestion. While that danger may have been slight, the question was within the court's broad discretion. (People v. Williams, supra, 16 Cal.4th at p. 672.) We find no abuse of this discretion.
In sum, we conclude the court did not abuse its discretion in its rulings regarding the proper scope of appellant's Pitchess evidence nor in sustaining the prosecutor's objections to the form of the direct examination questions of the Pitchess witnesses. Finding no error, we find no prosecutorial or judicial misconduct in regard to the prosecutor's objections and the court's rulings on them, nor do we find cumulative error requiring reversal.
II
Appellant claims the court erred by failing to instruct the jury, sua sponte, on whether Officer Garcia was lawfully performing his duties in his initial contact with appellant. (See CALCRIM No. 2670.) The court did instruct on that issue, but only as to Officers Ercolano and Goland.
One of the elements of assault upon a police officer and resisting a police officer is that the officer was lawfully performing his or her duties at the time. (See §§ 69, 245, subd. (c).) The statute limits the inquiry to the officers whom the defendant allegedly assaulted or resisted. Here, appellant was charged with assaulting Officers Ercolano and Goland and resisting Officer Ercolano. He was not charged with any crime with respect to Officer Garcia. Since the relevant question is whether Officers Ercolano and Goland were lawfully performing their duties at the time the assault occurred, the court's duty to instruct the jury on this element extended to these officers only. The court provided these instructions, and the prosecution introduced witness testimony describing the duties required by police officers who respond to a situation like the one encountered by Officers Ercolano and Goland. The court had no sua sponte duty to provide instructions as to Officer Garcia's actions, and its failure to do so was not in error.
Section 245, subdivision (c) provides, "[a]ny person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years."
Section 69 provides, "[e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment."
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EPSTEIN, P. J. We concur: MANELLA, J. SUZUKAWA, J.