Opinion
E039731
6-14-2007
THE PEOPLE, Plaintiff and Respondent, v. JORGE M. LEGORRETA, Defendant and Appellant.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry J. T. Carlton, Supervising Deputy Attorney General, and Susan Miller, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
I. INTRODUCTION
Jorge Medina Legorreta (defendant) was charged with two felony counts of willfully and unlawfully using force and violence, and inflicting injury upon a police officer, in violation of Penal Code section 243, subdivision (c)(1) (counts 1 and 2); two felony counts of willfully and unlawfully attempting by means of threats and violence to deter and prevent a police officer from performing duty, in violation of section 69 (counts 3 and 5); and one felony count of possessing an instrument and weapon known as a "billy," in violation of section 12020, subdivision (a)(1) (count 4). It was further charged that defendant committed these felonies within five years of two separate felony convictions in which defendant served prison time. (§ 667.5, subd. (b).)
All further statutory references will be to the Penal Code unless otherwise noted.
On October 7, 2005, a jury found defendant guilty of all charges except the weapon possession charge. In a bifurcated trial, defendant admitted the two prior convictions. The trial court sentenced defendant to the upper term of three years for the first violation of section 243, subdivision (c)(1), and a consecutive sentence of eight months for the second violation of section 243, subdivision (c)(1). The court stayed defendants sentences on the other two counts, but added an additional one-year sentence for each of the two prior felony convictions.
Defendant appeals, contending the evidence fails to establish that the damages to the officers were serious enough to qualify as injuries under section 243, subdivision (c)(1). He also requests a review of the trial courts denial of his Pitchess motion.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
II. STATEMENT OF FACTS
On March 6, 2005, Officer David Johansen was on patrol in the City of Riverside. At approximately 10:30 p.m., Officer Johansen spotted a Nissan Sentra driving with an expired registration tag on its rear license plate. The officer turned on his lights, which signaled to defendant to pull over.
Officer Johansen approached the drivers side window and began to ask defendant questions. Defendant did not respond and appeared to be under the influence of drugs or alcohol. Defendant then began to move his left arm in the direction of the center console in the vehicle. Defendants actions made Officer Johansen afraid for his safety, so the officer grabbed defendants left bicep to stop him. Defendant did not respond to repeated requests to exit the vehicle, so Officer Johansen used his free arm to open the door. The officer then assisted defendant in exiting the vehicle. Officer Johansen turned defendant around and patted him down for weapons at the rear drivers side door. Defendant began to turn around in a manner that made the officer believe that defendant might attempt to attack him. Officer Johansen proceeded to turn defendant back around and applied a carotid restraint, which is a hold used to immobilize a person by cutting off blood flow to the head. Defendant then leaned forward and tried to throw Officer Johansen over the top of him, which caused both men to go to the ground.
Before the struggle ensued, Officer Johansen had called for backup. Officer Eric Meier arrived first and found Officer Johansen in a struggle with defendant, so Officer Meier joined in the struggle. Shortly thereafter, Officer Aurelio Melendrez arrived at the scene and assisted the other two officers. The three officers eventually detained defendant and placed him under arrest. Other facts are set forth in the discussion of the issues to which they pertain.
III. DISCUSSION
A. Sufficiency of the Evidence for the Existence of Injury
To analyze a challenge to a criminal conviction based upon insufficiency of the evidence, the court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence — that is, evidence which is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Further, if the trier of facts findings are reasonable, a reversal is not warranted when the reviewing court determines that the circumstances could justify alternate findings. This means the defense "`bears an enormous burden when challenging the sufficiency of the evidence." (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)
A person violates section 243, subdivision (c)(1) when he or she commits battery upon a peace officer who is in the performance of duty, and the officer sustains an "injury." Section 243, subdivision (f)(5) defines an injury as "any physical injury which requires professional medical treatment." The test for determining an injury is not whether the officer actually sought out medical treatment, rather, "`[i]t is the nature, extent and seriousness of the injury . . . which is determinative." (In re Michael P. (1996) 50 Cal.App.4th 1525, 1529-1530; People v. Longoria (1995) 34 Cal.App.4th 12, 17.) "The test is objective and factual," (People v. Longoria, supra, at p. 17) so the jury must decide whether it believes the injury required medical treatment, as opposed to what the officer thought of his or her injury.
Section 242 defines battery as "any willful and unlawful use of force or violence upon the person of another."
In People v. Longoria, supra, 34 Cal.App.4th 12, the officer sustained an injury under section 243, subdivision (c)(1) when he was kicked in the groin, sustained cuts to his fingers and side of his hand, and his hand was crushed severely enough for him to be put on restrictive duty for a few days. (Id. at pp. 15-16, 18.) The officer had a doctor take X-rays of his crushed hand, which came back negative. However, the officer could not hold his firearm, so he was placed on restrictive duty answering phones for three to five days. (Id. at pp. 15-16.) The court found that a "rational trier of fact could have found that [the officers] injuries required professional medical treatment." (Id. at p. 18; see also People v. Lara (1994) 30 Cal.App.4th 658, 667-668 [bruises to knees, cuts to the hands, exposure to defendants blood, and treatment by medical personnel resulted in an injury to the officer].)
In contrast, the court in In re Michael P., supra, 50 Cal.App.4th 1525, found that a juvenile crew instructor (instructor) did not sustain an injury under section 243, subdivision (c)(1), after being kicked in the chest and chin by the defendant. (In re Michael P., supra, at pp. 1527-1528.) The instructor testified at trial that he was sore. However, he did not report the soreness to any medical personnel, no one wrote up an injury report, no one took photographs of his chest and chin, and there was no bruising. (Id. at p. 1528.) Because of the lack of testimony from the instructor regarding his "soreness," the court could not sustain the jurys verdict. The court said that "soreness" alone could not entail an injury that required professional medical treatment. (Id. at p. 1529.)
1. Officer Johansen (Count 1)
Officer Johansen testified that he sustained a contusion to his elbow after he and defendant fell to the ground. The officer said, "The combined weight drove [his] elbow into the asphalt." The officer further testified that he "received injuries to [his] left wrist, which swelled up. And had some soft tissue problems and also from [his] right elbow to [his] right wrist." This testimony was accompanied by a photograph of the injured arm. The officer said that the injuries required him to take time off.
Officer Johansens situation is similar to that of the officer in People v. Longoria, supra, 34 Cal.App.4th 12, where the court upheld the jurys finding of an injury. (Id. at p. 18.) Officer Johansens injuries required that he take time off. Further, unlike in In re Michael P., supra, 50 Cal.App.4th at pp. 1529-1530, his testimony described in detail for the jury exactly what happened to his arm. This testimony, along with a photograph of the arm, allowed a reasonable jury to make an objective determination that the injury would require professional medical treatment.
2. Officer Meier (Count 2)
Officer Meier testified that he hurt his right hand during the struggle with defendant. He indicated that he had a "minor abrasions [sic] on [his] right thumb and some swelling in [his] right hand." The cut was visible on a photograph of the officers hand that was shown to the jury. However, there was no indication that the photograph showed visible swelling in the hand. The officer did not miss any time from work, and did not get any medical treatment.
As in In re Michael P., supra, 50 Cal.App.4th 1525, the officers testimony does not satisfy the objective test for the existence of an injury under section 243, subdivision (c)(1). In In re Michael P., the instructor only testified to being sore (id. at p. 1528), whereas here, Officer Meier did not testify as to the extent of his injury at all. He did not indicate if his hand hurt, or if it affected his job performance. In fact, Officer Meier described the laceration to his thumb as being "minor." The photograph shown at trial did not show visible swelling, instead only showing the "minor" cut. The officer did indicate that the swelling increased overnight and into the next day, but he did not quantify what this meant.
We conclude there was not sufficient credible evidence to sustain the charge of battery with injury beyond a reasonable doubt. An objective observer cannot conclude that the injury Officer Meier sustained would require professional medical treatment. However, we find the evidence sufficient to support the lesser crime of battery against a peace officer while engaged in the performance of duty under section 243, subdivision (b). We will therefore order the judgment modified accordingly. (§ 1181; People v. Kelley (1929) 208 Cal. 387, 391-392.)
B. Review of Pitchess Motion
Defendant filed a Pitchess motion before trial seeking discovery of police department files and records pertaining to Officers Johansen, Meier, and Melendrez. Having found good cause, the trial court reviewed the records of the three police officers, but did not find any relevant evidence. Defendant has asked that we revisit the trial courts in camera review of the officers records to determine if the court abused its discretion in not releasing any of that information to defendant for use at trial. Specifically, defendant sought the officers records for any evidence of unnecessary violence, unnecessary force, false statements in reports, and false claims of probable cause.
When a defendant seeks discovery of a police officers record, he or she must file a written motion showing good cause and specifying precisely what he or she hopes to find. (People v. Mooc (2001) 26 Cal.4th 1216, 1226.) This is referred to as a Pitchess motion, named after Pitchess v. Superior Court, supra, 11 Cal.3d 531, and has been codified in Penal Code sections 832.5, 832.7 and 832.8, and in Evidence Code sections 1043 through 1047. (People v. Mooc, supra, 26 Cal.4th at p. 1226.) 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. (Ibid.) 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. (Id. at pp. 1227-1228.)
The trial court shall exclude all information that is either irrelevant, more than five years removed from the date of the subject of the litigation, a conclusive statement of the investigating officer pursuant to section 832.5, or so remote that disclosure would not be of any benefit to the defendant. (Evid. Code, § 1045, subd. (b).)
"A motion for discovery of peace officer personnel records is `addressed solely to the sound discretion of the trial court. [Citation.]" (People v. Breaux (1991) 1 Cal.4th 281, 311.) This means that we will review the trial courts determination only for an abuse of discretion. (Fletcher v. Superior Court (2002) 100 Cal.App.4th 386, 412 (dis. opn.).)
Having reviewed the sealed reporters transcript of the judges proceedings, we find no abuse of discretion in denying defendant access to any of the officers records.
Recently our colleagues in the Second Appellate District addressed the Pitchess issue in People v. Guevara (Feb. 28, 2007, No. B182951) 148 Cal.App.4th 62 [55 Cal.Rptr.3d 581; 2007 Cal.App.Lexis 275]). In Guevara, the custodian of records decided which records in the officers files were relevant. (Id. at p. 68.) On appeal, the appellate court was unable to review the record because it did not contain adequate details of the relevant information relied upon by the trial court. (Ibid.) In contrast, here the reporters transcript of the Pitchess hearing contained adequate details of the information reviewed by the trial court in making its determination. Specifically, after reviewing the personnel files of the officers, the trial court, as opposed to the custodian of records, determined the files did not contain relevant information for defendants case. (See People v. Mooc, supra, 26 Cal.4th at p. 1229.)
C. Review of Upper Term Sentence
For the count 1 conviction under section 243, subdivision (c)(1), the trial court sentenced defendant to the upper term of three years. The court imposed the upper term because it considered the offense to be "a very violent crime against authority which indicates a serious danger to society." The court ordered that defendant serve a consecutive eight-month sentence for the count 2 conviction under section 243, subdivision (c)(1). The court imposed the consecutive sentence based on defendants parole status at the time of the conviction.
Although the upper term sentence was neither objected to at trial nor raised on appeal, we review the courts ruling for the sake of judicial efficiency. Since the court used aggravating factors not found true beyond a reasonable doubt by a jury and used defendants parole status to justify the imposition of consecutive sentences, we do not find the trial courts sentencing error to be harmless. (Cunningham v. California (Jan. 22, 2007, No. 05-6551) ___ U.S. ___ [127 S.Ct. 856, 871] (Cunningham); § 1170, subd. (b); Chapman v. California (1967) 386 U.S. 18, 24.) Therefore, we remand for resentencing as to count 1, and order the court to impose a sentence that adheres to the Supreme Courts decision in Cunningham.
IV. DISPOSITION
As to the upper term sentence handed down in count 1, we remand for resentencing in light of the Supreme Courts ruling in Cunningham, supra, 127 S.Ct. 856. As to count 2, defendants conviction is modified to a conviction of violation of section 243, subdivision (b), and we remand for resentencing on that count as well. In all other respects, the judgment is affirmed.
We concur:
GAUT, J.
MILLER, J.