Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 05-060764-8
Sepulveda, J.
Defendant Don Jay Maszewski was found guilty following jury trial of one count of resisting executive officers in the performance of their duty by the use of force or violence, a felony (Pen. Code, § 69), two counts of misdemeanor battery on police officers (§ 243, subd. (b)), and one count of violating Vehicle Code section 2800.1 (evading a pursuing police officer), a misdemeanor. Defendant appeals from his judgment of conviction and sentence. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
I. Background
Defendant’s convictions arise from a series of events that occurred on May 23, 2006, involving defendant and five peace officers. For brevity’s sake we will condense the descriptions of the events here, and elaborate where pertinent to the discussion of the issues on appeal.
On the afternoon of May 23, 2006, Walnut Creek Police Officer Eric Balmy, in uniform and driving a marked patrol vehicle, stopped defendant, who was driving a car with no license plates but with a temporary registration sticker posted in the rear window. Defendant’s half brother was a passenger in the car. When Balmy asked him what he was doing in the area, defendant asserted he was there for an interview with someone regarding a photography job, although his appearance was unkempt, and his answers about the appointment were evasive. Defendant and the passenger provided identification and paperwork for the car to the officer, who then called for backup. Officers Kris Harman and Sean Dexter arrived shortly thereafter. Balmy determined that the passenger had an outstanding warrant; he then returned with the other two officers to defendant’s car and asked him to get out. Defendant refused, demanding to know why. During the exchange between Balmy and defendant, Harman saw what appeared to be an elongated, closed rifle bag on the back seat of defendant’s car. After a more direct order by Balmy, defendant still refused to get out of the car, and instead sped off suddenly.
Harman also testified that he saw something that looked like a tripod in defendant’s car. The record does not indicate that any other photographic equipment was recovered.
Balmy followed defendant at high speed, with siren sounding and lights flashing, until he lost sight of him in heavy traffic and called off the pursuit. At that point Harman, who was on a motorcycle, began looking for defendant’s car. He located it and followed defendant, finally succeeding in pulling up next to him and telling him that there was a warrant for the passenger’s arrest. Defendant drove a short distance, let the passenger out of his car, and sped off again, making a U-turn and heading back toward Walnut Creek. Harman arrested the passenger and turned him over to additional backup officers. While riding in the direction taken by defendant, Harman saw and recovered an empty, and opened, rifle bag from the road.
Shortly thereafter, three Walnut Creek police officers (Greg Thompson, Domenick Clemente, and Sean Dexter), in separate patrol cars, blocked and stopped defendant’s car. Defendant jumped out of his car and moved toward Clemente’s vehicle, gesturing and refusing to surrender when Clemente, service revolver now drawn, instructed him to do so. Thompson tried unsuccessfully to restrain defendant, whereupon Clemente reholstered his gun and joined with Thompson in struggling with defendant. During the ensuing fracas, Thompson was pinned on the ground by defendant, but was able to get up when Clemente employed a control hold and pulled defendant up. Clemente then found himself pinned against a wall by the wildly flailing defendant. Dexter tasered defendant in the back, with no visible effect. A second discharge of the taser in defendant’s lower right side was likewise ineffective in subduing him. Thompson then struck defendant on the upper left arm and the upper left leg with his baton, disabling defendant sufficiently to allow the officers to handcuff him. Defendant still continued to curse, yell, and struggle, necessitating further restraint by the officers. Defendant was eventually placed in a patrol car for transport. Evidence recovered from the back seat of defendant’s car included a “bandolero” designed to hold ammunition for use in an SKS or AK-47 rifle, 19 “strip clips” holding 10 bullets each, and three boxes of ammunition with 20 bullets each. A search of the front seat yielded a bag with three .32-caliber automatic cartridges.
Defendant was charged by information with one count of resisting an executive officer, a felony (§ 69—count 1), two counts of felony battery with injury upon a police officer (§§ 242, 243, subd. (c)(2)—counts 2 and 3), and one count of evading an officer, a misdemeanor (Veh. Code, § 2800.1—count 4). A jury found defendant guilty as charged in counts 1 and 4, and convicted defendant of the lesser offense of misdemeanor battery on a peace officer in counts 2 and 3 (§ 243, subd. (b)). Defendant was placed on three years’ probation with the condition, among others, that he serve 150 days in jail. Defendant timely appealed.
II. Discussion
A. Admission of Prior Conviction
Defendant argues that the trial court erred, in violation of Evidence Code sections 1101 and 352, by admitting evidence of defendant’s prior conviction of carrying a concealed weapon in a vehicle. (§ 12025, subd. (a).) Defendant further contends that this error was prejudicial and deprived him of due process of law, requiring reversal. We disagree.
Evidence Code section 1101, subdivision (a) precludes, except as provided elsewhere, the admission of character evidence (such as evidence of an uncharged offense) to prove a person’s conduct on a specified occasion. Such evidence is admissible, however, to prove some other fact in issue, such as motive, intent, common scheme or plan, or knowledge. (Evid. Code, § 1101, subd. (b).) Evidence which is admissible pursuant to Evidence Code section 1101, subdivision (b) may be excluded, pursuant to Evidence Code section 352, if the probative value of the evidence is substantially outweighed by the risk that its admission will create undue prejudice, confuse the issues, result in undue consumption of time or mislead the jury. (People v. Scheer (1998) 68 Cal.App.4th 1009, 1018.) We review a trial court’s ruling admitting evidence of an uncharged offense under the deferential abuse of discretion standard. (People v. Gray (2005) 37 Cal.4th 168, 202.) Pursuant to that standard of review, we reverse only if the trial court exceeded the bounds of reason. (People v. Andrade (2000) 79 Cal.App.4th 651, 654, fn. 1.)
In the instant case, the People moved in limine to admit ammunition and other items recovered from defendant’s car, as well as the rifle case recovered from the road by the officer who pursued defendant just prior to his arrest. In support of this motion, the prosecutor offered defendant’s 1993 guilty plea to a misdemeanor violation of section 12025, subdivision (a) (carrying a concealed firearm in a vehicle), arguing that the prior (coupled with the proffered physical evidence it sought to introduce) provided “crucial evidence of the defendant’s motive to flee [the] pursuing . . . officers.” The prosecutor initially stated she did not intend to affirmatively introduce defendant’s prior conviction, and sought only to introduce the items of physical evidence. The trial court indicated that it would admit the ammunition found in defendant’s car and the rifle case, as well as defendant’s prior conviction. The court found the prior conviction “relevant[,] probative as [to] that theory why he took off after even stopped by the police [sic],” and noted that no alternative explanation had been put forth by defendant to undermine its relevance. Without the evidence that defendant had previously been convicted of possession of a concealable firearm in a vehicle, the trial court reasoned, the ammunition and rifle case would not be probative on defendant’s motive to flee, as the prior established that defendant had known that possession of a concealable firearm in a vehicle was, in fact, illegal.
The trial court excluded other physical evidence found in defendant’s car, including two metal skewers.
The prosecutor did not, however, introduce evidence of defendant’s prior conviction in her case-in-chief. It was only when defendant himself introduced the issue of motive by testifying that he fled from the police because he was “in fear for [his] life” that the prosecutor asked if he had previously been convicted of possession of a concealable weapon in a vehicle. Defendant admitted that he suffered a conviction of carrying a concealed weapon in a car in 1993. Defendant further testified that the ammunition found in his car could be used “in a million guns,” and added that he didn’t “think” the gun he owned (allegedly kept at his house) was an assault rifle. Although no firearm was discovered by the police in the present case, the presence of a significant amount of ammunition in his car, and his possession of a rifle case (later discarded in haste), support the inference that defendant had a firearm in the car. The officer who initially observed the gun case in the back seat of defendant’s car testified that at that time it was “elongated” and zippered closed. After defendant discarded the case in the street, it was open and empty. Defendant’s presumed knowledge of the possible illegality of possession of a concealable firearm in a vehicle, based upon his having previously been convicted of that offense, would provide defendant with a motive to flee. Under this evidence, we find the probative value of the prior conviction on the issue of motive to be within the bounds of reason. (People v. Andrade, supra, 79 Cal.App.4th at pp. 651, 654, fn. 1.)
The fact that the gun case was a rifle case does not negate the reasonable inference that defendant may have possessed a concealable firearm in the vehicle. Some rifles may be of a size that is concealable. Further, even a handgun could have been concealed in the rifle case, which defendant claimed contained ammunition rather than a rifle. Finally, defendant had several types of ammunition in the vehicle, which he testified could fit in several different types of guns. Indeed, some of the ammunition was specifically pistol cartridges.
Under Evidence Code section 352, the probative value of evidence must not be outweighed by a substantial risk of undue prejudice. Evidence of defendant’s prior conviction related to a relatively minor issue, motive, which is not even an element of the crime of fleeing from a police officer. (Veh. Code, § 2800.1.) Further, the prosecutor broached the issue of defendant’s prior conviction only after defendant opened the door by claiming that his motive in fleeing the officers was to avoid being assaulted by them. The fact of defendant’s evasion of the police officers was undisputed, and the prior was admitted solely to rebut defendant’s contention that he fled out of fear. We are unpersuaded under these circumstances that admission of defendant’s prior conviction created a substantial risk of undue prejudice.
Even if admission of the prior conviction was error, however, it was harmless. The parties disagree as to the proper standard to apply in making this determination. Respondent argues that the harmless error standard under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) [standard for determining whether an error constitutes a “ ‘miscarriage of justice’ ” is whether “it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error”] should apply. Defendant asserts that admission of the 1993 prior resulted in a due process violation, and that the error must therefore be evaluated under Chapman v. California (1967) 386 U.S. 18, 24 [sustaining the judgment requires finding that error was harmless beyond a reasonable doubt]. Chapman does not apply, however, absent a showing by defendant that admission of the evidence was fundamentally unfair. (Estelle v. McGuire (1991) 502 U.S. 62, 70.) The Chapman court itself emphasized that the state harmless error standard may appropriately be applied in cases involving constitutional errors affecting “ ‘substantial rights,’ ” absent such a showing. (Chapman, supra, 386 U.S. at p. 23.)
The trial record shows that reference to the prior conviction represented a small fraction of the prosecutor’s argument. At no time did the prosecutor draw a connection between the prior conviction and defendant’s criminal propensity. The evidence was relevant only to challenge defendant’s purported motive (fear) for fleeing from the police, which he himself put in issue, not to otherwise prove he committed the charged offenses. The prior conviction was not introduced to show that because defendant illegally possessed a gun in the past, he illegally possessed one on this occasion—i.e., as propensity evidence. Defendant was not even charged with illegal possession of a firearm in the current case. We do not find that admission of defendant’s prior conviction, under these circumstances, rose to the level of fundamental unfairness.
The Watson harmless error standard therefore applies. Under the facts of the present case, it is not reasonably probable that the result would have been different absent the admission of defendant’s prior conviction. (Watson, supra, 46 Cal.2d at p. 836.) Again, it was not contested that defendant fled from the police. As discussed ante, defendant’s motive for evading the police was of any real significance only as it was put in issue by defendant himself. Defendant’s testimony that fear compelled his flight from the officers was belied not only by the prosecution’s evidence of an alternative motive (to avoid discovery of a firearm in his vehicle, which he had reason to believe was illegal due to his prior conviction), but also by the fact that he violently resisted several police officers once he was apprehended. Defendant’s behavior after he was finally apprehended was arguably not that of an innocent person who feared that the police were going to harm him without justification. He exited his car and approached the officers in a confrontational manner as soon as he was stopped. He violently resisted the officers, thrashed about, and was so agitated that several attempts to subdue him, through physical force by the officers, through the use of tasers, a control hold, and use of an officer’s baton, were not effective. Defendant’s testimony as to his motive for fleeing opened the door for admission of prior conviction evidence, but that evidence only contributed to the collapse of his credibility. We conclude that it is reasonably probable the jury, after evaluating all of the evidence, would have arrived at the same verdict absent evidence of his prior conviction.
B. Failure to Instruct on Necessity
Defendant contends that the trial court erred by failing to instruct on the defense of necessity. A trial court must instruct sua sponte on an affirmative defense such as necessity if substantial evidence supports the defense and if it is not inconsistent with the defendant’s theory of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
The defense of necessity is defined as follows: “In order to establish this defense, the defendant must prove that: [¶] 1. [He] acted in an emergency to prevent a significant bodily harm or evil . . .; [¶] 2. [He] had no adequate legal alternative; [¶] 3. The defendant’s acts did not create a greater danger than the one avoided; [¶] 4. When the defendant acted, [he] actually believed that the act was necessary to prevent the threatened harm or evil; [¶] 5. A reasonable person would also have believed that the act was necessary under the circumstances; [¶] AND [¶] 6. The defendant did not substantially contribute to the emergency.” (CALCRIM No. 3403.) Here, there was not substantial evidence supporting each of the required elements of the defense of necessity and the trial court therefore did not err by failing to instruct upon it.
Defendant argues that the arrival of backup officers, who put on gloves and began unbuckling their guns, transformed what was an initially benign stop of his vehicle by Officer Balmy into something more serious. When defendant was told to get out of his vehicle, a disagreement ensued as defendant demanded to know why he was being asked to do so. Defendant concluded that “ ‘it was building up,’ ” and that it reminded him of something he saw on the news regarding National Guardsman ordering a person to get up, and then shooting that person. Defendant therefore drove away from the scene; he claimed to be trying to get to an area with other people around so there would be witnesses present. Then the motorcycle officer told defendant that his passenger had a warrant, so defendant let his passenger out of the vehicle, and drove away from the officer yet again. Defendant claims this was “ample evidence that [he] thought the officers would subject him to harm or evil.”
The police may, of course, order passengers as well as the driver out of a vehicle detained for a traffic stop, without any articulable reason, for officer safety. (See Maryland v. Wilson (1997) 519 U.S. 408; Pennsylvania v. Mimms (1977) 434 U.S. 106.) Defendant has cited no authority that would require the police to explain this to defendant at the scene.
While there might be sufficient evidence that defendant personally believed his actions were necessary to prevent harm to himself from the officers (if the jury believed his version of the events), there was not substantial evidence that a reasonable person would have believed these actions were necessary under the circumstances. Nor was there substantial evidence that defendant actually acted in an emergency to prevent significant bodily harm or evil, or that his acts in driving away at a high rate of speed, running a stop light and going onto the shoulder (as well as endangering the lives of the officers standing nearby) did not create a greater danger than the one he allegedly avoided, or that he had no adequate legal alternative to flight from the officers. Even if defendant was improperly detained by the officers, a reasonable person would have complied with the officers’ orders to exit the vehicle. At the very least, a reasonable person would have stopped his car once he got onto Ygnacio Valley Road, where traffic was backed up and there were many witnesses present. Finally, there was not substantial evidence that defendant did not himself contribute to the purported emergency. In order for the defense of necessity to apply, all of these elements must be proven. Since there was not substantial evidence of each element, the trial court did not err by failing to instruct upon the defense.
Additionally, any error in failing to instruct on the defense of necessity was harmless. The jury was instructed on self-defense and was told that defendant should be found not guilty if he acted to defend himself from imminent danger of great bodily harm. The jury rejected this defense. Had the jury found that defendant faced imminent danger of great bodily harm from the police, as he claims supported his necessity defense, the jury would have acquitted defendant under this self-defense instruction. (See People v. Saavedra (2007) 156 Cal.App.4th 561 [by rejecting necessity defense, the jury demonstrated beyond a reasonable doubt that it would have rejected a self-defense claim based on same facts].)
C. Trial Court’s Instruction Regarding Initial Traffic Stop
Defendant next contends that the trial court erred by instructing the jury that the initial traffic stop was justified and by failing to instruct that if the stop was not justified, defendant committed no crime by “exercising his right to drive away from the scene.” We disagree.
The jury was instructed that, “A police officer may pull over a vehicle with no license plates for investigation even if the vehicle is displaying a temporary registration sticker.” Defendant contends that an officer may not make a traffic stop on those grounds alone, and that it was therefore error to so instruct the jury. Generally, two license plates are issued for a vehicle and must be placed one on the front and one on the rear. (Veh. Code, § 5200, subd. (a).) However, under certain circumstances, the Department of Motor Vehicles (DMV) may issue special permits in lieu of plates, which must be attached and displayed on the vehicle. (Veh. Code, § 5202.) In order to stop a vehicle, an officer must of course have a reasonable suspicion that a violation of law has occurred. Thus absent a reasonable suspicion that the vehicle may not be currently registered, an officer generally may not stop the car in order to determine the status of its registration. (People v. Saunders (2006) 38 Cal.4th 1129, 1135 (Saunders).) Thus the question arises: when a vehicle displays a special permit, but does not display license plates, may an officer stop the vehicle to ascertain the validity of the special permit (including whether it has issued for that particular vehicle and whether it is currently valid)? This issue is currently pending before the California Supreme Court.
See People v. Hernandez (2007) 146 Cal.App.4th 773, review granted March 21, 2007, S150038 and In re Raymond C. (2007) 145 Cal.App.4th 1320, review granted March 21, 2007, S149728 [May the officer make a traffic stop to determine the existence or validity of a temporary permit when one or more license plates is missing from the vehicle?].
Our colleagues in Division Two recently addressed a similar issue in People v. Dean (2007) 158 Cal.App.4th 377 (Dean). There, a vehicle was stopped which had the required license plates, but did not have current registration tags as required by Vehicle Code sections 4000, subdivision (a)(1) and 5204, subdivision (a). The car did, however, have a temporary operating permit displayed in the rear window. Relying upon People v. Nabong (2004) 115 Cal.App.4th Supp. 1 (also relied upon by defendant here), the Dean court found that the officer did not have a reasonable suspicion that the vehicle was not currently registered, therefore could not legitimately stop it, and that the trial court therefore erred in denying defendant’s motion to suppress pursuant to section 1538.5. Since the officer had the means to check on the status of the vehicle’s registration without stopping it (by checking to see if it displayed a temporary permit), he was not permitted to detain the car. Here, of course, there were no license plates on the vehicle and, as defendant concedes, “the temporary permits issued by the DMV offer no means for an officer to check the registration without stopping the motorist in situations where the temporary permit stands in place of license plates.” Absence of license plates is a violation of Vehicle Code section 5200. Under these facts, we find that the officer had a reasonable suspicion that the vehicle was operating without the required registration and/or license plates.
We note that defendant in the present case did not challenge the legality of the stop in a motion to suppress pursuant to section 1538.5.
We find the opinion of the California Supreme Court in Saunders, supra, 38 Cal.4th 1129 instructive. In Saunders, the vehicle in question was missing its front license plate and the registration tabs on the rear plate had expired, but the vehicle’s rear window displayed what appeared to be a current temporary operating permit. A clerk from the DMV testified that a temporary operating permit is issued to allow an owner to use the vehicle while an application for registration is pending. The permit is always red and the month of its issuance is displayed by use of a white numeral; the vehicle may be lawfully operated until the last day of the indicated month. The permit does contain other information, such as the license plate number, make and vehicle identification number of the vehicle, and the year that the permit was issued. However, an officer would not be able to ascertain the year in which the permit was issued, or what vehicle it was associated with, absent stopping the vehicle and verifying this information from the sticker. (Saunders, supra, 38 Cal.4th at pp. 1132-1133.) The court noted that “[w]e have not yet decided whether an officer may stop a vehicle that has an expired registration tab but also displays a temporary operating permit . . . . We need not decide the issue, however, because [the officer] also noticed that the pickup’s front license plate was missing. As defendant acknowledges, the lack of a front license plate has long been recognized as a legitimate basis for a traffic stop.” (Id. at pp. 1135-1136.) The court held that because the officer “had no ready means, short of a traffic stop, of investigating whether the temporary operating permit applied only to the expired registration or extended as well to the missing license plate” the officer could detain the vehicle for further investigation.
The officer did not do a radio check of the vehicle’s registration, but that would have been futile in any event, as the DMV clerk testified that the permit was not entered into any computer database; an officer would have to stop the car to determine the validity and scope of the temporary permit. (Saunders, supra, 38 Cal.4th at p. 1137, fn. 1.)
In the present case, without license plates that would permit the officer to call dispatch and have the vehicle run for current registration information, the officer clearly had no way to ascertain whether or not the vehicle was properly registered, or whether “the temporary operating permit applied” both to an expired registration, as well as the missing license plates. (Saunders, supra, 38 Cal.4th at p. 1137.) As the court in Saunders noted, “[t]he license plate[s], after all, could have gone missing after [the driver] obtained the temporary permit.” (Ibid.)
We disagree with the court’s reasoning in Nabong, supra, 115 Cal.App.4th Supp. 1, that the mere presence of an apparent temporary operating permit prohibited the officer from detaining the vehicle to ascertain the legitimacy of the permit—whether it was issued for the vehicle that it was displayed in and whether it was current. The trial court’s instruction on this issue was therefore not error.
To the extent that it is inconsistent with Saunders, supra, 38 Cal.4th 1129, and with our reasoning here, we also disagree with our colleagues in Division Two in Dean, supra, 158 Cal.App.4th at pages 392-393.
Respondent argues that even if the officer could not stop the vehicle to determine the legality of its temporary operating permit, the stop was justified as the vehicle was in the vicinity of recently reported suspicious activity and was, at least arguably, similar in description to the vehicle involved in that report. Officer Balmy, the officer who initially stopped defendant’s car, indeed indicated that he thought defendant’s car might be involved with the reported suspicious activity. Defendant maintains that there was insufficient geographical proximity and physical similarity to permit the detention on that basis. Given our ruling regarding the legitimacy of the stop based upon the registration issue, we decline to enter the fray regarding the physical proximity of defendant’s car to the location of the reported suspicious activity or the similarity of defendant’s vehicle to that described in the suspicious activity report.
Defendant further contends that the trial court erred when it failed to instruct the jury that if the stop was not justified, defendant committed no crime by “exercising his right to drive away from the scene.” Respondent concedes that “flight from the police is not in itself a crime if it constitutes nonviolent resistance to unlawful police conduct, as when a suspect flees on foot after an officer unlawfully asks him to empty his pockets.” Assuming the validity of this assertion, an instruction to this effect was not appropriate for two reasons: first, as discussed above, the detention was not illegal or unjustified; and second, defendant’s flight did not constitute nonviolent resistance. Defendant fled from the officers at a high rate of speed, running one or more stop signs, and drove onto the shoulder on Ygnacio Valley Road, hitting traffic cones as he passed vehicles proceeding in the same direction. Additionally, when defendant drove away suddenly, at least one officer (Harman) was holding on to the car, and Officers Balmy and Dexter were still standing next to the open front door of the vehicle. Such conduct rises above the “nonviolent resistance” permitted in response to unlawful police conduct. Indeed, this conduct gave the officers independent probable cause to arrest defendant for reckless driving (Veh. Code, § 23103). The trial court did not err, under these circumstances, by failing to instruct as now suggested by defendant.
Defendant did not request such an instruction below.
D. Pitchess Motion
Finally, defendant requests that we review the sealed portion of the record below which relates to his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531. We have done so and agree with the trial court’s ruling that there was no discoverable material contained in any of the police officers’ personnel records. No error appears from the trial court’s ruling.
III. Disposition
The judgment is affirmed.
We concur: Reardon, Acting P. J., Rivera, J.