Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA054271. Sanjay T. Kumar, Judge.
Marilee Marshall & Associates, Inc. and Jennifer L. Peabody for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Noah P. Hill, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant and appellant Tony L. Higginbottom (defendant) appeals his conviction, following a jury trial, of battery on a police officer resulting in injury (Pen. Code, § 243, subd. (c)(2); count 1) and two counts of resisting an executive officer (§ 69; counts 2 & 3). Defendant admitted having suffered a prior conviction for purposes of sentencing enhancement under the “Three Strikes” law (§§ 667, subd. (b)-(i); 1170.12, subds. (a)-(d)), and the trial court sentenced defendant to a term of six years and eight months, consisting of the mid-term of two years for count 1, doubled as a second strike, plus a consecutive term of 16 months (one-third the mid-term, doubled as a second strike) for count 2, plus a consecutive term of 16 months (one-third the mid-term, doubled as a second strike) for count 3. Defendant contends the trial court erred by admitting into evidence a redacted medical report on injuries sustained by one of the arresting officers and by sentencing defendant to consecutive terms for counts 2 and 3. Defendant also requests that we review the trial court’s rulings on defendant’s Pitchess motion for discovery of personnel records of the officers involved in his arrest.
All further statutory references are to the Penal Code unless otherwise indicated.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We affirm the judgment. The trial court did not abuse its discretion by admitting a redacted copy of a medical report concerning an injury sustained by an arresting officer, as that document came within the business records exception to the hearsay rule. (People v. Beeler (1995) 9 Cal.4th 953, 980-981.) Substantial evidence supports the trial court’s determination that defendant’s convictions for battery on a peace officer and resisting arrest were independent violations predicated upon wholly separate acts with separate criminal objectives. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Martin (2005) 133 Cal.App.4th 776, 781.) Finally, we have reviewed the peace officer personnel records filed with this court under seal and find no reversible error with regard to the disclosure or nondisclosure of those records. (People v. Hughes (2002) 27 Cal.4th 287, 330; People v. Watson (1956) 46 Cal.2d 818, 836.)
BACKGROUND
On January 9, 2006, at approximately 8:30 p.m., Los Angeles Police Officers Mehrdad Fard and Ross Jester were on patrol in a marked police car, wearing uniforms, when they responded to a call reporting that a man was holding a gun to his son’s head, and that someone was having a heart attack inside a residence. While en route to the residence, the officers received information that the caller was a female who was possibly mentally ill. When the officers arrived at the residence, they looked through a window and saw defendant standing motionless in the kitchen. Defendant was facing away from them, and the officers could not see if anything or anyone was on the floor.
The officers knocked on the front door, and when defendant opened the door, Officer Fard identified himself as a Los Angeles police officer and said that they were responding to an emergency call. Defendant asked the officers for a business card. Officer Fard explained that they did not have time to provide business cards and that they needed to enter the residence because they were responding to a report that a man inside the house was holding a gun to his son’s head and that someone inside was having a medical emergency. Defendant became agitated and verbally abusive. He took one step backward and raised his fists, adopting a fighting stance, while blocking the doorway.
As Officer Jester stepped into the doorway, defendant threw a punch at Officer Jester’s face. Officer Jester blocked the attempted punch and grabbed both of defendant’s arms. While the two struggled, defendant fell backward. Officer Jester initially fell forward with defendant, but was able to stand back up. Defendant lay on his back, with both legs pulled up toward his chest. As he was standing over defendant, Officer Jester saw defendant pull his leg back and deliberately kick Officer Jester’s left knee. Officer Jester’s knee buckled under him, and he fell to the floor onto that knee. Defendant continued to struggle while on the ground, throwing punches at the officers and attempting to kick them. Both officers commanded defendant several times to stop resisting and to put his hands behind his back, but defendant did not comply. When defendant failed to comply, Officer Fard used a taser on defendant’s abdomen and waited for him to cease struggling. Defendant did not stop struggling, so Officer Fard used the taser a second time on defendant’s leg. Defendant yelled and grabbed the taser, which was still activated, and Officer Fard and defendant struggled over the taser for a few seconds. When he was able to dislodge the taser from defendant’s hand, Officer Fard activated the taser’s cartridge and fired a dart into defendant’s left thigh. Officer Fard commanded defendant to roll over onto his stomach; however, defendant did not comply. When the taser ceased its activation cycle, defendant began to stand up. Officer Fard activated the taser a third time and commanded defendant to get onto his stomach. When the taser ended its third cycle, defendant again attempted to stand up, yelling obscenities at the officers and balling his fists. Officer Fard removed his pepper spray and told defendant that he would be sprayed if he did not lie on his stomach. When defendant attempted to stand, Officer Fard sprayed him in the face. Defendant did not roll over onto his stomach but attempted to stand up once again. Officer Fard activated the taser a fourth time, and when the fourth taser cycle ended, defendant tried to get up again. Officer Fard used the pepper spray once more on defendant’s face, and defendant once more attempted to stand up. Officer Fard activated the taser a fifth time, and defendant finally complied with the officers’ commands to lay on his stomach. The officers handcuffed defendant, patted him down for weapons, and conducted a sweep of the house to ensure no victims were present.
Officer Jester suffered a bone contusion in his left knee and was out of work for approximately one month.
DISCUSSION
I. Alleged Evidentiary Error
A. Proceedings Below
Before trial, the prosecutor informed the trial court that he would seek to introduce a medical report concerning a knee injury sustained by Officer Jester as evidence of that injury and to corroborate Officer Jester’s testimony that defendant had kicked him. The trial court asked how the prosecutor intended to avoid application of the hearsay rule, and the prosecutor responded that defense counsel might be willing to stipulate that the document constituted a business record. The prosecutor indicated that he was seeking to introduce only one or two sentences in the report, stating that Officer Jester had bone marrow edema and that suprapatellar joint effusion is present. Defense counsel stated that she was unwilling to stipulate to the admissibility of the report and that there was no foundation for the medical conclusion that Officer Jester had bone marrow edema.
The trial court revisited the issue a few days later, and discussed with the parties whether the medical report at issue fell within the business records exception to the hearsay rule because it described a medical condition and did not express a medical opinion about the victim’s injury. The trial court overruled defense counsel’s objections to admission of the medical report under Evidence Code section 352 and confrontation clause grounds and allowed the prosecutor to introduce a redacted version of the report that contained the name of the patient, doctor, and medical facility, the date and description of the procedure, and the following sentence: “There is bone marrow edema involving the lateral tibial plateau.” The trial court stated that it would take judicial notice of the Webster’s Dictionary, 1996 edition definition of “edema.”
Officer Jester testified at trial that he was treated at the Northridge Diagnostic Center on January 23, 2006, and that an MRI had been performed on his knee. Officer Jester identified a redacted version of the medical report, which was introduced into evidence. Before instructing the jury, the trial court advised the jurors: “[T]he court has taken judicial notice that the definition of the word ‘edema’ in the 1996 edition of the Webster’s Desk Dictionary is as follows: . . . ‘Abnormal accumulation of fluid in the tissue spaces, cavities, or joint capsules of the body.’”
B. Standard of Review and Applicable Law
Evidence Code section 1271 provides: “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.”
“[T]o be admissible under the business records exception, the evidence ‘. . . must be a record of an act, condition, or event; a conclusion is neither an act, condition or event; it may or may not be based upon conditions, acts or events observed by the person drawing the conclusion. . . .’ [Citation.] . . . ‘It is true that some diagnoses are a statement of a fact or a condition, for example, a diagnosis that a man has suffered a compound fracture of the femur is a record of what the person making the diagnosis has seen but this is not true where the diagnosis is but the reasoning of the person making it arrived at from the consideration of many different factors.’ [Citation.]” (People v. Beeler, supra, 9 Cal.4th at pp. 980-981.)
A trial court’s decision to admit evidence under the business records exception to the hearsay rule is reviewed for abuse of discretion. (People v. Jones (1998) 17 Cal.4th 279, 308.) When discretionary power is vested in the trial court, its exercise of that discretion “must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]” (People v. Jordan (1986) 42 Cal.3d 308, 316.)
C. No Abuse of Discretion
The trial court did not abuse its discretion by admitting a redacted version of the medical report under the business records exception to the hearsay rule. The statement in the report that “there is bone marrow edema,” defined as “abnormal accumulation of fluid in the tissue spaces, cavities, or joint capsules of the body,” was based on a doctor’s observation of the images from Officer Jester’s MRI. Such an observation is a statement of fact and is no different than the “diagnosis that a man has suffered a compound fracture of the femur” discussed by the court in People v. Beeler, supra, 9 Cal.4th at pages 980 to 981.
Defendant’s argument that the redacted portion of Officer Jester’s medical report shows that the finding of “bone marrow edema” was a medical opinion, rather than an observation, is unsupported. Defendant contends that a redacted portion of the report captioned “Indication” lists “injury” and “pain” suggests that the doctor’s diagnosis was based not solely on the results of the MRI, but as the result of the consideration of other factors, such as Jester’s statements that he was experiencing pain. That the unredacted report includes other medically relevant information does not mean that the portion admitted into evidence was something other than a doctor’s observation of a medical condition. The balance of the section of the report that contained the statement admitted into evidence that “[t]here is bone marrow edema involving the lateral tibial plateau” makes clear that the statement was merely a record of what the examining doctor had seen: “The articular cartilage appears unremarkable. There is also small focus of bone marrow edema involving the medial plateau. Suprapatellar joint effusion is present. Menisci are intact. ACL, PCL, MCL, LCL, and quadriceps and patellar tendons are intact as well.” The trial court did not abuse its discretion by admitting the redacted report under the business records exception to the hearsay rule.
II. Pitchess Motion
Defendant asks that we independently review the record to determine whether there was error in the trial court’s Pitchess rulings concerning disclosure of the personnel records of Officers Fard and Jester. In Pitchess, supra, 11 Cal.3d 531, the California Supreme Court held that a peace officer’s confidential personnel records may be discoverable if there is good cause shown. A trial court conducts an in camera review of the documents to determine whether the officer’s records contain any material relevant to the defense. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019; Evid.Code, §§ 1043, 1045.) A trial court’s ruling on a Pitchess motion for access to law enforcement personnel records is reviewed for an abuse of discretion. (People v. Hughes, supra, 27 Cal.4th at p. 330; People v. Mooc (2001) 26 Cal.4th 1216, 1228-1232.) Any error by the trial court is reviewed under the standard set forth in People v. Watson, supra, 46 Cal.2d 818. (People v. Marshall (1996) 13 Cal.4th 799, 842-843.) We have reviewed the peace officer personnel records filed with this court under seal, and find no reversible error. Even if we applied the more stringent standard set forth in Chapman v. California (1967) 386 U.S. 18, we would still affirm the judgment.
III. Section 654
Defendant argues that section 654 required the trial court to sentence him for count 1 (battery on a peace officer resulting in injury) and to impose and stay the sentence on count 2 (resisting an executive officer), rather than imposing consecutive sentences on both counts. Section 654, subdivision (a) provides: “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. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
Under section 654, “[a] course of conduct that constitutes an indivisible transaction violating more than a single statute cannot be subjected to multiple punishment. [Citation.]” (People v. Martin, supra, 133 Cal.App.4th at p. 781.) “‘If all the offense were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ [Citation.] If, on the other hand, ‘the [defendant] entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] . . . [¶] Whether multiple convictions are part of an indivisible transaction is primarily a question of fact. [Citation.]” (Ibid.) We review such a finding under the substantial evidence standard, viewing the evidence in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence. (People v. Osband, supra, 13 Cal.4th at pp. 730-731; People v. Holly (1976) 62 Cal.App.3d 797, 803.)
Substantial evidence supports the trial court’s determination that defendant’s convictions for battery on a peace officer resulting in injury and resisting an executive officer were independent violations predicated upon wholly separate acts with separate criminal objectives. The facts adduced at trial showed that defendant committed battery (count 1) upon Officer Jester by cocking back his leg and deliberately kicking Officer Jester in the knee, and that he subsequently resisted Officer Jester’s and Officer Fard’s efforts to restrain him. Defendant’s battery on Officer Jester was directed specifically at Officer Jester and was a wholly separate act from defendant’s subsequent efforts to avoid being handcuffed and arrested. Accordingly, section 654 did not preclude the trial court from sentencing defendant for both of these wholly separate and independent offenses.
DISPOSITION
The judgment is affirmed.
We concur: BOREN, P. J., DOI TODD, J.