Opinion
A100720.
7-15-2003
THE PEOPLE, Plaintiff and Respondent, v. STEVEN PAUL MEDINA, Defendant and Appellant.
Defendant Steven Paul Medina was convicted of resisting arrest, carrying a loaded firearm in a vehicle in a public place, and carrying a concealed firearm on his person without a license. He appeals the first two of these convictions, contending the trial court erred when it excluded evidence of a prior violent act by the arresting officer, and that he cannot be convicted of carrying a loaded firearm in a vehicle in public because his vehicle was also his residence and because the weapon was found in his vehicle in a place that was not public. We affirm.
PROCEDURAL HISTORY
An information filed by the San Mateo District Attorney charged defendant with exhibiting a firearm in a threatening manner in the presence of a peace officer (count one; Pen. Code, § 417, subd. (c)), resisting arrest (count two; § 148, subd. (a)(1)), carrying a loaded firearm in a vehicle in public (count three; § 12031, subd. (a)(1)), and carrying a concealed firearm without a license (count four; § 12025, subd. (a)(2)). A jury found defendant guilty of counts two, three, and four and deadlocked on count one, resulting in a mistrial on that count. The trial court suspended the imposition of sentence, placed defendant on probation, and ordered defendant to serve consecutively three 45-day sentences in the county jail. The trial court granted defendants request to file a late notice of appeal, and this court has previously ordered that defendants notice of appeal be deemed to have been timely filed.
All statutory references are to the Penal Code unless otherwise indicated.
FACTUAL SYNOPSIS
Although much of the evidence is disputed, the record contains substantial evidence of the following, somewhat bizarre, facts. Shortly after midnight on November 3, 2000, defendant was working as a security guard in the parking lot at Kragen Auto Parts (Kragen) in Daly City. Defendant started a small fire on the sidewalk-he later testified-to burn off fluid that he had spilled. Daly City Police Officer Victor Schiantarelli noticed the fire and parked his patrol car near the parking lot. Schiantarelli testified he asked defendant what he was doing, prompting defendant to stomp out the fire. Defendant told Schiantarelli he was a security guard, and motioned to his jacket and hat that bore security labels. As he did so, defendants thigh-length windbreaker shifted and exposed a gun holstered on his belt. Although he was licensed to carry an exposed firearm, his windbreaker had concealed the gun he was carrying.
Upon seeing defendants firearm, Schiantarelli pointed his gun at defendant, "notified dispatch," and ordered defendant to get to the ground. Defendant did not follow the order. Instead, Schiantarelli testified, defendant began to walk away, then pointed his gun towards the officer, ducked behind his truck, and ultimately emerged with his hands in the air. Defendant testified he never removed his gun from its holster, and that he placed the holster on the truck before emerging. At no point did he tell the officer he had removed his weapon.
When backup officers arrived, Schiantarelli was still demanding that defendant lie face down on the ground. The backup officers also yelled for defendant to get on the ground, but he ignored them. Defendant eventually sat on the curb, and the arresting officers "placed him on the ground" in order to handcuff him. Defendant testified the officers tackled him and that Schiantarelli grabbed his chin violently and said "youre pissing me off" just before the other officers pushed him against Kragens window. Schiantarelli denied this version of events and claimed the officers had to struggle to handcuff defendant because he was not following any of the orders and was passively resisting arrest. The backup officers also testified that defendant was not cooperating when they tried to handcuff him.
After defendant was handcuffed, the officers searched his wallet and his truck, which was in Kragens parking lot. His wallet contained a permit to carry an exposed firearm and a security guard license. In the passenger compartment of his truck the officers found two swords, a pellet gun and pellets, and a police baton. In the trucks camper shell the officers found three unlocked cases, each containing a firearm and ammunition. One of the guns was loaded.
DISCUSSION
1. The court did not abuse its discretion in excluding evidence of Officer Schiantarellis prior violent act.
Defendant sought to introduce evidence that Schiantarelli previously had been arrested because of a domestic violence incident with his ex-wife. The judge described the incident as a "pushing match" and said the officers arrest report contained a "great deal of disputed evidence." Defendant argued this evidence tended to establish that Schiantarelli had a violent disposition that caused him to overreact when he approached defendant in the parking lot. The trial court ruled the probative value of Schiantarellis domestic violence incident was outweighed by its prejudicial effect because it would necessitate an undue consumption of time, possibly doubling the duration of the trial, and that all of this testimony "might confuse the issues and lead us off down paths that really dont have much to do with this case."
Defendant contends the trial court abused its discretion under Evidence Code section 352 and violated the defendants constitutional right to confront witnesses and present a defense. Under Evidence Code section 352, the trial court enjoys broad discretion in determining whether the probative value of the evidence is outweighed by concerns of undue consumption of time, confusion or prejudice. (People v. Lewis (2001) 26 Cal.4th 334, 374-375.) Absent an abuse of discretion, the trial courts ruling will not be disturbed. (Ibid.) Furthermore, " trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination. " (People v. Quartermain (1997) 16 Cal.4th 600, 623, 941 P.2d 788.) Whether defendants constitutional right to confront a witness is violated depends on whether a "reasonable jury might have received a significantly different impression of the witnesss credibility had the excluded cross-examination been permitted." (Id. at p. 624.)
Generally, in a prosecution for resisting arrest, evidence of the arresting officers violent tendencies and specific instances of his violent conduct are relevant and admissible. (People v. Castain (1981) 122 Cal. App. 3d 138, 142-144, 175 Cal. Rptr. 651.) In Castain, the trial court was held to have erred when it excluded evidence that the arresting officer had used excessive violence in a prior arrest, that was offered to prove the officer "had a propensity to use excessive force against citizens he arrested or detained and, by inference, had acted in character in his confrontation with" the defendant in that case. (Id. at p. 143.) The evidence that was excluded here, however, was not that Schiantarelli previously had used excessive force in making an arrest, but that he had used violence in a domestic dispute. The logical leap from the fact he had used such violence in a personal matter to the likelihood he used excessive force in arresting defendant is much greater than the inference that reasonably could have been drawn in Castain. Moreover, even accepting defendants version of the events, Schiantarelli exerted no force until after he had resisted arrest by refusing to get on the ground as he had been ordered to do. In Castain, the defendant claimed it was only the arresting officers violence that precipitated his resistance. (Id. at p. 141.) Thus, Castain does not compel the conclusion that the trial court abused its discretion in excluding evidence of Schiantarellis domestic episode, nor do the other cases on which defendant relies.
Defendant contends that Pitchess v. Superior Court (1974) 11 Cal.3d 531, 113 Cal. Rptr. 897, 522 P.2d 305 requires that all evidence of a police officers prior violent acts must be admitted when a defendant is charged with resisting arrest by that officer. However, Pitchess holds only that the disciplinary records of the arresting officer are discoverable when there is a question about resisting arrest, not that evidence of all prior violent acts must be admitted in evidence. (Id. at pp. 535-537.) Similarly incorrect is defendants contention that Washington v. Texas (1967) 388 U.S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 holds that any exclusion of defense evidence violates the defendants constitutional rights. In Washington, the Supreme Court held that a competent witness cannot be excluded for arbitrary reasons, such as a presumed bias for the defense. (Id . at p. 24.) Defendant also misinterprets the discussion in Washington about the defendants right to present his own version of the facts. (See id. at p. 19.) Excluding evidence of the unrelated domestic violence incident did not prevent defendant from presenting his version of the facts that pertained to the charges against him.
Defendants claim that he was denied his constitutional right to present a defense and confront witnesses is similarly without merit. Admitting the evidence of Schiantarellis domestic violence would not have given the jury a "significantly different impression" of Schiantarelli. (People v. Quartermain, supra, 16 Cal.4th at p. 624 .) Moreover, neither Schiantarellis credibility nor his propensity to use force was critical to an evaluation of the evidence against defendant. In addition to Schiantarellis testimony, the jurys verdict was supported by the testimony of two of the officers who responded to the scene when defendant was still standing, before the point at which defendant accused Schiantarelli of using undue force. Each corroborated Schiantarellis testimony that defendant refused to follow the officers orders to lie on the ground. Hence, defendants constitutional right to confront witnesses and to present a defense was not violated by the exclusion of this evidence.
2. Defendants contention that his camper truck was his residence, invoking an exception to section 12031, subdivision (a), may not be considered because not raised at trial.
Defendant was found guilty under count three of violating section 12031, subdivision (a)(1), which provides that "every person who carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street . . . is guilty of a misdemeanor." Defendant attacks his conviction on this count on two grounds: that the loaded firearm was found in the residential portion of his vehicle, and that the record does not contain substantial evidence that it was found in a public place.
Section 12031, subdivision (l) provides that "nothing in this section shall prevent any person from having a loaded weapon, if it is otherwise lawful, at his or her place of residence, including any temporary residence or campsite." Defendant contends he did not violate section 12031, subdivision (a)(1) because the loaded firearm was found in the camper section of his truck, which is his residence. However, this affirmative defense was not raised at trial. Further, the trial record contains scant evidence that the camper truck was defendants residence. Officer Michael Price testified the camper contained "pillows and blankets or sleeping bags." Defendant responded "Oh, yes" when his counsel asked, "And often times, you sleep in your camper van?" The only evidence cited by defendant to show that he "has no permanent home address, and lives in [his] camper moving to various jobs where he is employed as a security guard" is the report of the probation officer prepared after he had been found guilty.
"It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which the case was tried." (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) Allowing a new theory of defense on appeal "would be unfair to the trial court and the opposing litigant." (Ibid .) Although an appellate court may consider a new theory when "it is purely a matter of applying the law to undisputed facts" (ibid.), defendants defense that his camper is his residence requires a factual determination that must be made by the fact finder.
Moreover, defendants theory cannot be considered on appeal because it relies on evidence not in the record. At trial, defendant offered no evidence that he slept in the vehicle because it was his residence or because he had no other residence. Only the probation report supports defendants assertion that his camper is his residence, but the probation report contains information not presented during the trial. Evidence not presented to the trial court "and hence not a proper part of the record on appeal will not be considered on appeal." (People v. St. Martin (1970) 1 Cal.3d 524, 537-538, 83 Cal. Rptr. 166, 463 P.2d 390.) Although the appellate court may augment the record, this "authority extends only to material offered at or used on the trial or hearing below. " (People v. Pearson (1969) 70 Cal.2d 218, 222, fn. 1, 74 Cal. Rptr. 281, 449 P.2d 217.)
3. The jurys finding that the parking lot was a public place is supported by substantial evidence.
Defendant contends the "public place" element of the crime was not supported by substantial evidence because the prosecution failed to provide any evidence that Kragens parking lot is a public place. When the sufficiency of the evidence is in dispute, the court "must review the entire record, and drawing all reasonable inferences in favor of [the judgment], . . . determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. " (People v. Hughes (2002) 27 Cal.4th 287, 357.) On appeal, the court must determine whether the record "contains substantial evidence-i.e., evidence that is credible and of solid value." (People v. Jennings (1991) 53 Cal.3d 334, 364, 279 Cal. Rptr. 780, 807 P.2d 1009.) This court need not be convinced beyond a reasonable doubt. (People v. Alcala (1984) 36 Cal.3d 604, 623, 205 Cal. Rptr. 775, 685 P.2d 1126, disapproved on other grounds in People v. Falsetta (1999) 21 Cal.4th 903, 911, 986 P.2d 182.)
The record contains uncontested testimony that defendants camper was parked in Kragens parking lot. Whether the parking lot was, around midnight, open to the public is not addressed explicitly. Generally, however, "the parking lot of a market, being accessible to members of the public having business with the market, is a public place." (People v. Vega (1971) 18 Cal. App. 3d 954, 958, 96 Cal. Rptr. 391.) Although defendant asserts the store was closed when the loaded firearm was discovered, he did not assert that fact at trial. In any event, no case holds that the parking lot of a closed store is not a public place for purposes of section 12031, subdivision (a)(1). Officer Price said there were a few other cars in the parking lot at the time of defendants arrest, and defendant testified he was working as a security guard that night in order to protect deliveries to the store. This testimony provides substantial evidence supporting the inference that Kragens parking lot was, in fact, a public place when the loaded weapon was found there.
DISPOSITION
The judgment is affirmed.
We concur: Corrigan, Acting P. J., and Parrilli, J.