Opinion
D071718
02-27-2018
THE PEOPLE, Plaintiff and Respondent, v. SCOTT ROBERT HOFFMAN, Defendant and Appellant.
David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Marvin Eugene Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCE356104) APPEAL from a judgment of the Superior Court of San Diego County, Patricia K. Cookson, Judge. Reversed. David W. Beaudreau, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Marvin Eugene Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Scott Robert Hoffman was charged with—and ultimately convicted of—battery on a peace officer, San Diego County Sheriff's Deputy James Givens, and resisting arrest. At trial, Deputy Givens testified that while he was standing at the door to Hoffman's mobile home, without provocation Hoffman punched him; Givens tackled him in response. Hoffman told a different story. He testified that the deputy's attack was not precipitated by a punch but solely by an obscenity. No one else saw—or was in the proper vantage point to see—Hoffman throw an initial punch. While others witnessed the later portion of the scuffle, only Hoffman and Givens could testify as to its genesis. Thus, the trial turned on a battle of credibility: Was Hoffman or Givens telling the truth?
The jury picked Deputy Givens. But as it turns out, the admission of irrelevant and prejudicial evidence tipped the scales in his favor. Givens went to Hoffman's home to assist animal control officers investigating a report of an injured dog. During direct examination of one of those officers, the prosecution elicited testimony regarding the actual injuries to the six-month-old puppy, the severity of those injuries, and the animal's veterinary history. The evidence regarding the puppy's condition, which was uncovered only after Hoffman was arrested and taken from the scene, was completely irrelevant to the action. It served only to invite speculation about who was responsible for the injuries, fostering an emotional bias against Hoffman and engendering a minitrial over the puppy's care. To make matters worse, in closing argument the prosecutor focused on Hoffman's actions toward the dog as one of several "bad decisions" that led to his criminal charges, neither of which was even remotely related to animal abuse. Given the decisive role credibility played in the case, we conclude that a different result was reasonably probable, absent the improperly admitted evidence. Accordingly, we reverse.
We consider one additional aspect of Hoffman's appeal, primarily for the benefit of the trial court on remand. Hoffman filed a pretrial Pitchess motion seeking discovery of materials from Deputy Givens's personnel file related to various types of misconduct. The trial court limited its independent review of Deputy Givens's file to a search for complaints related to excessive force and falsified police reports. Hoffman argues that the court's search should have swept more broadly. He further requests that we independently scrutinize the review actually conducted. With respect to the Pitchess procedure and conclusions, we find no error.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
FACTUAL AND PROCEDURAL BACKGROUND
The Department of Animal Services for the County of San Diego received a report of an injured dog in need of veterinary care. Animal Control Officer Corrine Howard, accompanied by another officer, went to investigate the report, which identified Hoffman's trailer as the dog's residence.
The animal control officers approached the trailer and knocked on the sliding glass door. Hoffman answered. The exchange started off amicably enough, but deteriorated rapidly once Officer Howard mentioned the dog. Hoffman began yelling expletives at the officers and repeating that he knew how to care for his dog. He also expressed displeasure that the officers chose to knock on the glass door rather than use the doorbell. Following Hoffman's outburst, the officers retreated to their vehicle and contacted the San Diego County Sheriff's Department for assistance. Hoffman went back inside.
While the officers waited for a deputy to arrive, Hoffman emerged several more times to spew profanities in their general direction. They also watched another man—not Hoffman—exit the trailer, retrieve a blanket-wrapped object from a nearby vehicle, and go back inside. The officers feared the blanket might conceal a rifle.
Deputy Givens arrived and conferred with the animal control officers. They told him about the confrontation with Hoffman and the other individual's blanket-wrapped object. Givens told the officers to stay put. They watched as he approached the trailer, although their view of the doorway was partially obscured by a cactus.
Deputy Givens knocked on the trailer's glass door and Hoffman answered. Hoffman immediately began yelling over him toward the animal control officers. He berated Givens for knocking instead of using the doorbell. Hoffman then closed the door in Givens's face.
Deputy Givens again knocked on the sliding glass door and Hoffman again answered. Hoffman told the deputy to "Get lost," "Get out," and "Fuck off." According to Givens, Hoffman then punched him with sufficient gusto to cause his glasses to break, head to snap back and hat to fly off. Givens punched Hoffman in response and pushed him into the trailer. They tumbled over a bicycle in the foyer and Givens landed atop Hoffman. He struck Hoffman several more times while trying to radio for backup.
More deputies arrived within minutes. Two deputies grabbed Hoffman's arms and pulled him out of the trailer. Hoffman crashed into a white picket fence on the way out. Blood from a laceration on his head spilled onto the ground. Hoffman continued to thrash about and yell. After he was handcuffed, one of the deputies sat on his legs in an attempt to quell his flailing.
Paramedics arrived on scene and tended to Hoffman's head wound. Once the medics staunched the bleeding, Hoffman was loaded into a patrol car and another deputy transported him to a nearby hospital for further treatment. At the hospital, a doctor glued the laceration shut. Hoffman did not receive any other care. He was later booked into the county jail.
Hoffman was charged with resisting an executive officer (Pen. Code, § 69, count one) and battery upon an officer (Pen. Code, § 243, subd. (b), count two). Hoffman, for his part, denied punching Deputy Givens and claimed that the deputy's tackle was precipitated by only obscene language. The first jury to hear Hoffman's case could not agree on a verdict and a mistrial was declared. Following a second trial the jury convicted on both counts.
DISCUSSION
Hoffman complains of numerous purported errors made during his second trial. Because we reverse based on the erroneous admission of irrelevant and potentially inflammatory evidence, we need not and do not reach the majority of his claims.
Hoffman additionally argues that (1) a limiting instruction regarding the puppy evidence should have been provided; (2) cumulative errors amount to prejudice; and (3) his counsel rendered ineffective assistance. He also challenges a condition of his probation.
1. The Puppy Evidence
During the direct examination of the People's first witness, Animal Control Officer Howard, the prosecutor elicited testimony describing circumstances uncovered after Hoffman was removed from the scene. Specifically, Howard testified that the dog in question, a six-month-old Maltese-Poodle mix later identified as "Boo Boo," (1) was later impounded due to the severity of her injuries; (2) had two fractured legs and a broken rib; and (3) had not, as far as the animal control officers could determine, received necessary veterinary care. Hoffman contends that the admission of evidence regarding Boo Boo's physical condition amounts to prejudicial error. We agree.
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence is relevant if it has "any tendency to prove or disprove any disputed fact that is of consequence to determination of the action." (§ 210.) A trial court may exclude relevant evidence "if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (§ 352.) Evidence is unduly prejudicial if it tends to evoke an emotional bias against a party or lead the jury to prejudge a person based on extraneous factors. (People v. Cowan (2010) 50 Cal.4th 401, 475.) We review the trial court's evidentiary rulings for an abuse of discretion, keeping in mind that a trial court has no discretion to admit irrelevant evidence. (§ 350; People v. Covarrubias (2015) 236 Cal.App.4th 942, 947-948.)
Further statutory references are to the Evidence Code unless otherwise indicated.
The People suggest the puppy evidence was relevant to the animal control officers' credibility because, without it, the jury may have concluded that the officers "were just harassing [Hoffman] and coming up with a fabricated reason to take his dog" given his outrage at their visit. The theory falls short. Boo Boo's actual physical condition had no bearing on the legitimacy of the animal control officers' rationale for visiting Hoffman's trailer and, as a corollary, no bearing on their credibility. The officers went to Hoffman's home to investigate a report of an injured dog. The very purpose of their visit was to ascertain whether the report was true or not. The report's existence—not its veracity—is relevant to whether they were harassing Hoffman based on a fabrication.
As an initial matter, the People argue that Hoffman forfeited the ability to raise this issue on appeal because his trial counsel did not specifically object to the queries regarding the dog's actual injuries and veterinary history. But once her objection to the query inviting Officer Howard's opinion on the severity of the dog's injuries was overruled, his counsel did not need to reassert the same unsuccessful objection to questions prompting the same genre of evidence. (See People v. Antick (1975) 15 Cal.3d 79, 95 ["It has long been the rule that '[w]here a party has once formally taken exception to a certain line or character of evidence, he is not required to renew the objection at each recurrence thereafter of the objectionable matter . . . and his silence will not debar him from having the exception reviewed.' "].) The People argue that Officer Howard's opinion about the dog's injuries is a separate and distinct topic from the dog's actual injuries and veterinary history. We are not persuaded. It is all of one genus: evidence about the dog's purported neglect. The issue was not waived.
The People do not provide any other theories of relevance, and we cannot conceive of any legitimate use of the puppy evidence in this case. Moreover, even if the People's relevancy argument had any merit, the minimal probative value is easily outweighed by the substantial risk of undue prejudice, confusing the issues, and misleading the jury. (§ 352.) Officer Howard's testimony regarding Hoffman's aggressive conduct was uncontested; Hoffman himself admitted to swearing repeatedly at the officers. The main discrepancy in their testimony was minor: whether the officers first asked to see the dog (the officers' version) or simply said they were taking it sight unseen (Hoffman's recollection). Moreover, neither animal control officer saw what precipitated Deputy Givens's attack on Hoffman. That is, neither could testify as to the pivotal moments of the incident. So their credibility—which was for all intents and purposes unchallenged—was of little significance.
In contrast, Hoffman's credibility was paramount. And admission of evidence tending to show that a six-month-old puppy was mistreated while in his trailer—presumably through neglect, abuse, or some combination of the two—carried an undue risk of emotionally biasing the jury against Hoffman and inviting them to convict him based not on his conduct toward Deputy Givens but rather on their suppositions regarding the maltreatment of his pet dog.
Hoffman also persuasively points out that the puppy evidence would not withstand scrutiny under section 1101. "[S]ection 1101, subdivision (a) sets forth the ' "strongly entrenched" ' rule that propensity evidence is not admissible to prove a defendant's conduct on a specific occasion." (People v. Jackson (2016) 1 Cal.5th 269, 299.) "At the same time, 'other crimes' evidence is admissible under [] section 1101, subdivision (b) 'when offered as evidence of a defendant's motive, common scheme or plan, preparation, intent, knowledge, identity, or absence of mistake or accident in the charged crimes.' " (Id. at p. 300.) Since the People do not posit that section 1101, subdivision (b) provides a basis for its admission—they instead characterize the evidence as relevant solely to the animal control officers' credibility—we do not consider Hoffman's section 1101 arguments in depth.
Not only was such evidence likely to inflame the jury to Hoffman's detriment, but it led to an unnecessary mini-trial regarding Boo Boo's veterinary history. (See People v. Falsetta (1999) 21 Cal.4th 903, 916 ["trial courts will exercise sound discretion under section 352 to preclude inefficient mini-trials"]; see also People v. Hamilton (2009) 45 Cal.4th 863, 930.) To rebut Officer Howard's testimony that the dog had never been to a vet, Hoffman's counsel introduced the dog's veterinary records reflecting two prior visits. (Cf. People v. Calio (1986) 42 Cal.3d 639, 643 [" 'An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by . . . endeavoring to make the best of a bad situation for which [she] was not responsible.' "].) In response, the prosecutor emphasized that the records showed only that the dog was treated for dehydration about a month before the animal control officers' visit to Hoffman's home, implying that the fractures occurred recently, likely while the dog was in Hoffman's care. We understand that when the judge first ruled the puppy evidence would be admitted, she could not know with certainty that the trial would take such an extensive detour. But even if the ensuing sideshow was not a foregone conclusion, the risk of its occurrence was certainly foreseeable and significant.
Whether analyzed under section 350 or 352, the evidence regarding the puppy should not have been admitted. And having determined there was error, there can be little question but that the error was prejudicial. Reversal is mandated if "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson).) "Reasonably probable in this context 'does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citations.] In assessing prejudice, we consider both the magnitude of the error and the closeness of the case." (People v. Vasquez (2017) 14 Cal.App.5th 1019, 1041 (Vasquez).) Under this rubric, a hung jury is a more favorable result than a conviction. (Id. at p. 1042; People v. Soojan (2010) 190 Cal.App.4th 491, 520 (Soojan).)
Hoffman additionally claims that the admission of the puppy evidence ran afoul of federal due process guarantees. An objection under section 352 preserves a "very narrow due process argument on appeal." (People v. Partida (2005) 37 Cal.4th 428, 435.) "[T]he admission of evidence, even if error under state law, violates due process only if it makes the trial fundamentally unfair." (Id. at p. 436.) Because we reverse based on state law error alone, we do not consider the merits of Hoffman's federal due process claim.
Absent the evidence of Boo Boo's maltreatment, a different outcome was reasonably probable in this case. The trial turned on a question of credibility—Hoffman's word against Givens's. When a jury is tasked with a close and difficult credibility determination based on conflicting factual recitations, the risks associated with erroneously admitting inflammatory evidence are undoubtedly large, if not near their apex. (See, e.g., People v. Anderson (1978) 20 Cal.3d 647, 651; People v. Wagner (1975) 13 Cal.3d 612, 621; People v. Lopez (2005) 129 Cal.App.4th 1508, 1524.)
The prosecutor's closing statements heightened the risk that the jury would improperly discredit Hoffman's testimony based on perceptions about animal neglect. (See People v. Hendrix (2013) 214 Cal.App.4th 216, 250-252; People v. Holt (1984) 37 Cal.3d 436, 459, fn. 18.) He focused on "a series of bad decisions" that led to Hoffman's charges. The first feature in the series was Hoffman's treatment of the dog. While the prosecutor did acknowledge that the dog was "not the key issue in the case" and that "[w]e don't know how this dog gets injured," the overall implication was that Hoffman was at least partly responsible for—if he did not directly cause—the dog's injuries. Indeed, we query what other takeaway there could conceivably be from the following passage:
"So we know it [the puppy] goes in [to the vet] one time when it's only five months old and its already got all these issues, and then sometime after that it picks up even more issues. [¶] [Hoffman] wasn't following the recommendation of what the vet said then. He wasn't doing anything for what was wrong with it now. That's exactly the kind of case that an ACS, Animal Control Services, is going to get involved in. If you treat a child that way, CPS is going to get involved. Treat an animal that way, Animal Control is going to get involved. [¶] While Mr. Hoffman's going days, weeks, however long it is, doing nothing for this animal, and based on his testimony up here, it seems like it took a neighbor just a very short time of looking and realizing, 'Something's not right here.' "We can only conclude that the prosecutor's closing remarks improperly highlighted the prejudice already flowing from the erroneously admitted evidence.
The People argue the puppy evidence was not prejudicial because Hoffman's testimony otherwise lacked credibility, but they point to no evidence persuasively supporting that assertion. To the contrary, the evidence they cite is at best equivocal, and in many respects simply underscores the importance of the jury's determination regarding Hoffman's credibility. For example, the People characterize as "unbelievable" Hoffman's testimony that Givens attacked first "because Givens had been to [Hoffman's] trailer on multiple previous occasions, mostly for noise complaints, and had not shown any aggression toward [Hoffman]." That evidence, however, could just as easily be read to support Hoffman's version of the events: Because Givens had been to Hoffman's trailer before and Hoffman had not shown any aggression toward Givens in the past, Givens's testimony that Hoffman attacked first could be viewed as questionable.
In short, it is reasonably probable that the jury would have reached a different result had the evidence regarding the puppy's condition been properly excluded. 2. Pitchess Motion
Hoffman additionally argues that a comparison between his first trial (which ended with a hung jury) and his second demonstrates the prejudicial nature of the puppy evidence. He points out that the first jury did not hear about the dog's fractures and broken rib. The People argue that additional differences between the first and second trials explain the diverging outcomes. They also argue that the second jury heard additional evidence more favorable to Hoffman, which in turn counterbalances the evidence about the dog's injuries and veterinary history. Somewhat ironically, in support of this argument they point to Hoffman's rebuttal of Officer Howard's testimony that the dog was not taken to the vet (even though she did not testify about its veterinary history in the first trial); because Hoffman rebutted her statement that the dog had not been to a vet, the People argue that her credibility was more harshly impeached in the second trial. We decline to take a microscope to the differences between the first and second trials because, even absent the prior hung jury, we find a sufficient showing of prejudice. In our view, the prior hung jury bolsters the claim of prejudice (see Soojan, supra, 190 Cal.App.4th at p. 458; Vasquez, supra, 14 Cal.App.5th at p. 1043), but it is hardly necessary to our conclusion.
For the benefit of the trial court on remand, we consider one additional aspect of Hoffman's appeal.
"On a showing of good cause a criminal defendant is entitled to discovery of relevant documents or information in the personnel records of a police officer accused of misconduct against the defendant." (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016 (Warrick).) First the defendant files a so-called Pitchess motion stating what records are requested and provides "[a]ffidavits showing good cause for the discovery or disclosure sought, setting forth the materiality thereof to the subject matter of the pending litigation." (§ 1043, subd. (b)(3); Pitchess, supra, 11 Cal.3d 531.) If the defendant makes the requisite showing, the trial court "review[s] the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance." (Warrick, at p. 1019; § 1045, subd. (b).)
"Good cause" requires "not only a logical link between the defense proposed and the pending charge, but also [an articulation of] how the discovery being sought would support such a defense or how it would impeach the officer's version of events." (Warrick, supra, 35 Cal.4th at p. 1021.) The "information sought must be described with some specificity" to ensure that the request "is limited to instances of officer misconduct related to the misconduct asserted by the defendant." (Ibid.) In other words, the request must be tailored to the misconduct alleged since "only documentation of past officer misconduct which is similar to misconduct alleged by the defendant in the pending litigation is relevant and therefore subject to discovery." (California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1021 (California Highway Patrol).) We review the trial court's decision on a Pitchess motion for an abuse of discretion. (Id. at p. 1019.)
Before his first trial, Hoffman sought discovery from Deputy Givens's personnel file related to ten categories of misconduct. The trial court granted Hoffman's motion in part, limiting its review to searching for complaints related to falsified police reports and excessive force. The ensuing review did not yield any relevant records.
Hoffman sought discovery of materials related to the following ten categories: (1) excessive force; (2) aggressive conduct; (3) unnecessary violence; (4) unnecessary force; (5) false arrest; (6) false statements in reports; (7) false claims of probable cause; (8) false statements of education, training or experience in resumes, curriculum vitae and employment applications; (9) false testimony; and (10) any other evidence of or complaints of dishonesty.
Citing to People v. Mattson (1990) 50 Cal.3d 826, 849 (Mattson), the People briefly argue that Hoffman forfeited this issue because he did not renew his Pitchess motion before his second trial. In Mattson, the People were permitted to relitigate the admissibility of a defendant's confessions after his conviction was reversed on appeal. (Id. at pp. 849-853.) Mattson does not stand for the proposition that a criminal defendant must renew a Pitchess motion following a mistrial in order to preserve the issue for appeal. Any such renewal (absent new evidence or arguments) would likely be futile. Thus, we will consider the issue on its merits.
On appeal, Hoffman contends that the trial court improperly limited its review to complaints related to excessive force and false reports. He argues that, once he established good cause for those categories of misconduct, good cause existed as a matter of course for similar categories. Essentially, Hoffman reads jurisprudential references to "similar" misconduct as a mechanism to broaden the discovery sought to reach additional categories of misconduct. But there is a difference between stating that a defendant is entitled to evidence of similar misconduct and saying he is entitled to similar categories of misconduct. The former, correct formulation narrows the scope of discoverable materials to factual scenarios similar to those at issue. For example, our Supreme Court has advised "when a defendant asserts that his confession was coerced, a discovery request that seeks all excessive force complaints against the arresting officer is overly broad." (People v. Jackson (1996) 13 Cal.4th 1164, 1220, citing People v. Memro (1985) 38 Cal.3d 658, 685 (Memro).) Instead, he is entitled only to " 'complaints by persons who alleged coercive techniques in questioning.' " (Jackson, at p. 1220, quoting Memro, at p. 685.) The alternative—that the similarity requirement broadens rather than narrows the misconduct discoverable—would condone the quintessential fishing expedition that our courts and legislature have been so careful to avoid. (See City of San Jose v. Superior Court (1993) 5 Cal.4th 47, 54 (City of San Jose).)
Moreover, Hoffman's claim on appeal appears, in some respects, to elevate semantics over substance. For example, the trial court granted his motion as to complaints related to excessive force. He claims that this ruling wrongfully excludes complaints related to unnecessary force. Yet we cannot see how the search for complaints related to excessive force would differ from a search for those related to unnecessary force. Although Hoffman argues that the trial court's selected terminology may have led the custodian of records to wrongly narrow the scope of its production, we are unpersuaded. "[T]he custodian of records is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself." (People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229.) "[I]f the custodian has any doubt whether a particular document is relevant, he or she should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records." (Id. at p. 1229.) Put simply, much of the review Hoffman now seeks is one that he almost certainly already received.
Hoffman makes one more argument in support of discovery related to Deputy Givens's purported dishonesty. He relies on People v. Wheeler (1992) 4 Cal.4th 284, 295 (Wheeler) to argue he was entitled to any evidence of dishonest acts that could have been used to impeach Deputy Givens at trial. Wheeler held that nonfelony conduct involving moral turpitude is generally admissible to impeach a criminal witness. It did not consider discovery of peace officer personnel files. (See California Highway Patrol, supra, 84 Cal.App.4th at p. 1024.) Thus, "Wheeler does not relieve a defendant of the burden of making a showing of good cause as required by the statutory scheme for discovery of documents from a peace officer's personnel record." (Id. at p. 1013.) A criminal defendant's request still must be "factually specific and tailored to support its claim of officer misconduct." (Warrick, supra, 35 Cal.4th at p. 1027.) Pointing a finger at an officer for allegedly lying in one context does not necessarily open the door to any and all unrelated acts of dishonesty that may be waiting in his or her personnel files. (California Highway Patrol, supra, 84 Cal.App.4th at p. 1023 [good cause for discovery related to false police reports did not amount to good cause for discovery of time card irregularities]; see also City of San Jose, supra, 67 Cal.App.4th at p. 1135.) Absent more specific averments, a trial court does not abuse its discretion in narrowing the scope of the Pitchess request to seeking misconduct similar to that sufficiently alleged. Accordingly, we find no abuse of discretion with respect to the scope of the Pitchess review conducted.
Hoffman additionally requests that we independently review the sealed transcript of the Pitchess proceeding in the trial court to ensure that any and all relevant documents were disclosed. The People do not oppose his request. We have conducted such a review and conclude that no error occurred.
As a procedural matter, the People argued that we should not independently review the transcript unless we conclude that the scope employed (i.e., the kinds of misconduct searched for) was proper. Because we conclude that the scope was proper, we proceed to our independent review without commenting on whether the People's proposed sequencing is required. --------
DISPOSITION
The judgment is reversed.
DATO, J. WE CONCUR: McCONNELL, P. J. IRION, J.