Opinion
G057979
09-24-2020
THE PEOPLE, Plaintiff and Respondent, v. CARLOS MICHAEL RODRIGUEZ, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Plithey, Assistant Attorney General, Noah P. Hill and Stephanie C. Santoro, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16CF0455) OPINION Appeal from a judgment of the Superior Court of Orange County, James E. Rogan, Judge. Affirmed in part, reversed in part, and remanded with directions. Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Plithey, Assistant Attorney General, Noah P. Hill and Stephanie C. Santoro, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant Carlos Michael Rodriguez of attempted murder of a peace officer, possession of heroin for sale, possession of methamphetamine for sale, and other felonies. The court found true various sentence enhancement allegations and sentenced him to 41 years to life, plus a consecutive determinate term of 41 years and four months in state prison.
Defendant contends: (1) the court abused its discretion by excluding impeachment evidence of a prosecution witness; (2) the court improperly admitted a lay opinion as to defendant's mental state during the attempted murder; and (3) the court's modified jury instruction for possession for sale of a controlled substance misstated the law. We disagree and affirm the convictions.
Defendant also argues, the Attorney General concedes, and we agree, the four one-year sentence enhancements imposed under Penal Code section 667.5(b) (section 667.5(b)) must be stricken. So we reverse the judgment, strike the four section 667.5(b) enhancements, and remand with directions to resentence defendant.
All further statutory references are to this code unless otherwise stated.
FACTS
Santa Ana Police Officer M.L. was on patrol in uniform in a marked police vehicle and saw defendant walking his bike. He made eye contact with defendant and defendant's eyes "got big." M.L. got out of his car and saw defendant had abandoned his bicycle and was running away. M.L. said "stop, police" and ran after defendant. He told defendant he was going to catch him and defendant looked back, said "come and try" or "come and get me," and continued to run away.
Defendant ran through an archway and into a courtyard. M.L. paused at the archway and could not see defendant in the courtyard. As he passed through the archway, M.L. looked to his left and saw defendant 10 to 12 feet away pointing a gun at him. As soon as M.L. saw him, defendant fired the gun. M.L. ducked to the right, felt the bullet graze him on the side of his head, and fired three times at defendant. M.L. moved backwards out of the courtyard and when he looked back in, defendant was on the ground on his back with a handgun an arm's distance away.
Police officers found two baggies containing heroin, a pill bottle containing methamphetamine, a pipe with white residue in it, and a second handgun on defendant's person.
The defense presented four witnesses who heard or saw parts of the incident. All of the witnesses heard the gunshots and none heard anyone yell "stop, police" before the shots were fired.
DISCUSSION
1. Impeachment Evidence Exclusion
Defendant contends the court improperly excluded impeachment evidence pertaining to M.L. We disagree.
A. Background
Defendant sought to impeach M.L. with a report M.L. filed in a use of force investigation in a prior unrelated matter. He argued M.L. made deliberate false statements in the report, which amounted to filing a false report (§ 118.1).
M.L. testified during a pretrial evidentiary hearing regarding the use of force investigation. M.L.'s involvement in the investigation began when he responded to a radio call regarding a person suspected of crashing a stolen vehicle and attempting to flee the police on foot. When he arrived at the scene, the suspect had already been arrested.
M.L. interviewed the arresting officer, who said he used force while arresting the suspect. The arresting officer said the suspect had initially complied with orders to get on the ground, but then stopped on his way to the ground. The officer pushed the suspect to the ground, and the suspect resisted having his hands placed in handcuffs by placing his hands beneath himself. The officer said he then "administered some knee strikes" to get the suspect to comply.
M.L. then interviewed the suspect, who said the arrest was "abusive" and the officer kneed him in the head. The audio recording of M.L.'s interview of the suspect was played during the hearing.
Because it was his first time conducting a use of force investigation, M.L. spoke to his supervising officer after interviewing the suspect. He told his supervisor the suspect used the word "abusive," had redness on his face, and asked if this constituted an allegation of excessive force. His supervisor said "often people do feel like they got beat up or abused by the police, especially when force is used during an arrest, and that his word, using 'abusive,' is not an excessive force allegation." Based on his supervisor's advice, M.L. wrote a report which did not include the suspect's description of the arrest as "abusive," and concluded there were no "allegations of excessive force or misconduct."
The court questioned M.L. about the use of the term "excessive use of force" in reports. M.L. explained the term had a specific meaning within the department. He also stated his supervisor told him the suspect "'need[ed] to say the words if he felt there was excessive use of force.'"
A few weeks after the incident, M.L. received surveillance footage of the arrest. After watching the video, M.L. concluded there were discrepancies between the arresting officer's account and the video, but he did not feel the officer was being deliberately dishonest or minimizing the force used. He also concluded the arresting officer did not use excessive force during the arrest. He told his supervisor of his conclusions, and the supervisor advised him to include his conclusion saying the use of force was justified. M.L. later learned the report was only supposed to be used for fact-finding, and not to include his opinion, so he removed the conclusion regarding the use of force.
At the conclusion of the pretrial evidentiary hearing, the court found M.L. was justified in saying there were no allegations of excessive force because the terms had a specific meaning within the department, and, based on the advice of his supervisor, the suspect's statements did not meet the departmental requirements for an allegation.
The court explained it had watched the video of the arrest twice and the suspect's "movement toward the ground . . . could be reasonably interpreted as a hostile motion threatening the approaching officers, especially if [the suspect's] hand or hands went from being visible to not visible due to this quick movement." The court also concluded any discrepancies between the video and the arresting officer's statements were minor and potentially due to the different angle of the video compared to what the officer saw.
The court concluded, "there's just nothing that the Court observes, based on the totality of the circumstances here, that would appear to rise to a level of a finding that [M.L.] engaged in moral turpitude as a police officer willfully or negligently seeking to file a false or misleading police report."
B. Analysis
A witness may be impeached with any prior conduct involving moral turpitude, whether or not it resulted in a criminal conviction, subject to the trial court's discretion under Evidence Code section 352. (People v. Clark (2011) 52 Cal.4th 856, 931; People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7.) We review the trial court's decision regarding the admissibility of impeachment evidence for an abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705.) "The abuse of discretion standard is not a unified standard; the deference it calls for varies according to the aspect of a trial court's ruling under review. The trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious." (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711-712, fns. omitted.)
Evidence Code section 352 states "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Section 118.1 states:"Every peace officer who files any report . . . regarding the commission of any crime or any investigation of any crime, if he or she knowingly and intentionally makes any statement regarding any material matter in the report which the officer knows to be false . . . is guilty of filing a false report . . . ."
Defendant argues M.L.'s conclusion there were no "allegations of excessive force or misconduct" amounted to a violation of section 118.1. We are not persuaded.
The trial court's finding M.L. did not violate section 118.1 because his report did not contain any false statements is supported by substantial evidence. M.L. testified an allegation of excessive force had a specific meaning within the police department and was not made merely because a suspect complained about force being used during his arrest. After speaking to the arresting officer, suspect, and viewing the video of the arrest, M.L. concluded the suspect failed to comply with officer directions and hid his hands in a way which justified the amount of force used in the arrest.
We assume for the sake of argument a violation of section 118.1 could constitute a crime of moral turpitude.
Defendant also argues on appeal M.L.'s report contained a misstatement that there was no allegation of "misconduct." However, defendant's motion in the trial court argued the report was inaccurate for failing to "disclose any of the allegations of abusive force" and was relevant impeachment evidence as to the officer's "handling use of force allegations." Further, when the court explained its ruling focusing on whether the officer had used excessive force, defendant made no argument concerning whether there was an allegation of misconduct. Therefore, this theory of admissibility was not presented at trial and is not cognizable on appeal. (Evid. Code, § 354; cf. People v. Alcala (1992) 4 Cal.4th 742, 795-796.)
Moreover, there was substantial evidence M.L. did not knowingly make a false statement because he acted under the advice of his supervisor. M.L. explained he spoke to his supervisor about the contents of his report, and was advised the suspect's description of the arrest did not qualify as an allegation of excessive force.
By denying defendant's motion, the court made an implied finding M.L's testimony was credible regarding his supervisor's advice. This testimony by itself, along with the court's implied finding, is sufficient to support a conclusion M.L. did not violate section 118.1, regardless of any arguments about the report's accuracy. Consequently, the court did not abuse its discretion in excluding the impeachment evidence. 2. Opinion Evidence
Defendant argues the court violated his due process rights by allowing M.L. to express an improper lay opinion about defendant's mental state during the shooting, which went to the issue of his guilt for attempted murder. Again we disagree.
A. Background
During cross-examination, defense counsel asked M.L. if he told an investigator he "wanted [defendant] to die." M.L. agreed that after the shooting he said he was "pissed off . . . angry . . . I was hoping [defendant] would die."
On redirect examination, the prosecutor asked M.L. why he said he wanted defendant to die. M.L. responded, "I mean, there's a lot of emotions that I experienced because of the incident. Anger, the more I thought about it, seeing -- you know, having to explain to my wife and four kids." Defense counsel objected as to relevance, and the court sustained the objection. The following exchange then occurred between the prosecutor and M.L.:
"[Prosecutor:] "Well you had a lot of emotion going through you; correct?
[M.L.:] Yes.
[Prosecutor:] Is that what caused you to say that?
[M.L.:] Yes, absolutely.
[Prosecutor:] And could you tell us what those emotions were that caused you to say that two days later?"
Defense objected as to relevance and the court overruled the objection explaining, "the witness is entitled to explain the comment elicited on cross-examination."
M.L. answered: "I was frustrated, angry that this happened to me. I've been a police officer seven and a half years, never had anybody ever try to do this to me, try to kill me." (Italics added.) Defense counsel objected again on grounds of speculation and "calls for legal conclusion to the final statement." The court overruled the objections, but told the prosecution he was "ready to move on to [the] next point."
B. Analysis
Evidence Code section 800 provides: "If a witness is not testifying as an expert, his [or her] testimony in the form of an opinion is limited to such an opinion as is permitted by law, including but not limited to an opinion that is: [¶] (a) Rationally based on the perception of the witness; and [¶] (b) Helpful to a clear understanding of his [or her] testimony." "A witness may not express an opinion on a defendant's guilt. The reason for this rule is not because guilt is the ultimate issue of fact for the jury, as opinion testimony often goes to the ultimate issue. [Citations.] 'Rather, opinions on guilt or innocence are inadmissible because they are of no assistance to the trier of fact. To put it another way, the trier of fact is as competent as the witness to weigh the evidence and draw a conclusion on the issue of guilt.'" (People v. Coffman and Marlow (2004) 34 Cal. 4th 1, 77.)
However, a witness may use a term in a purely descriptive sense without expressing an improper opinion as to the issue of guilt. (People v. Smith (2015) 61 Cal.4th 18, 49.) In Smith, a murder case with a special allegation of torture, the court admitted the statement of a co-perpetrator that an event happened "'before [the defendant] started torturing [the victim].'" (Ibid.) Our Supreme Court reasoned the reference to the defendant torturing the victim was not an opinion about whether the defendant had actually committed the alleged torture, "[i]t was simply part of [the witness's] narrative" and description of a "sequence of events." (Ibid.)
Likewise, here M.L.'s statement was not an opinion about whether defendant had the specific intent necessary for attempted murder when he fired the gun. The statement was simply M.L.'s way of narrating the events surrounding the shooting. The focus of the questioning, and the relevance of the answer, concerned M.L.'s emotional reaction to the shooting and his subsequent feelings towards defendant, not defendant's mental state when he fired.
Regardless, even assuming error in admitting M.L.'s statement it was harmless error under both Chapman v. California (1967) 386 U.S. 18 and People v. Watson (1956) 46 Cal.2d 818 due to the overwhelming evidence of defendant's guilt. After leading M.L. on an extended chase, defendant ran around a corner, waited for M.L. to emerge, and fired the gun at M.L.'s head from 10 to 12 feet away. There was no evidence presented to suggest defendant fired the gun by mistake. This evidence alone was overwhelming proof of defendant's intent in firing the gun.
Finally, there is little chance the jury perceived M.L.'s statement as an opinion about defendant's mental state. The questioning which led to the statement focused on M.L.'s emotions when he was talking to the investigator and his answer highlighted his anger and frustration at being shot. And, the prosecutor made no mention of the statement during either his closing or rebuttal argument.
For these reasons, we conclude M.L.'s statement was not an improper opinion, and any error in admitting it was harmless under any standard of review. 3. Jury Instructions
Because the court did not err in excluding defendant's impeachment evidence or admitting the opinion statement, we need not address defendant's additional argument the cumulative effect of the errors deprived him of a fair trial.
Defendant asserts the court erred by instructing the jury with a modified CALCRIM No. 2302. He contends the modified instruction allowed the jury to convict him of both possession of heroin for sale and possession of methamphetamine for sale while only finding he had the intent to sell one substance. Not so.
The Attorney General argues defendant forfeited this issue by not objecting to the instruction during trial. However, "[i]nstructions regarding the elements of the crime affect the substantial rights of the defendant, thus requiring no objection for appellate review." (People v. Hillhouse (2002) 27 Cal.4th 469, 503)
"In considering a claim of instructional error [reviewing courts] must first ascertain what the relevant law provides, and then determine what meaning the instruction given conveys." (People v. Andrade (2000) 85 Cal.App.4th 579, 585.) We apply the de novo standard of review in determining whether a jury instruction correctly states the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)
The modified CALCRIM No. 2302 here read: "The defendant is charged in Count 4 with possession for sale of heroin, and in Count 5 with possession for sale of methamphetamine, both controlled substances. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully possessed a controlled substance; [¶] 2. The defendant knew of its presence; [¶] 3. The defendant knew of the substance's nature or character as a controlled substance; [¶] 4. When the defendant possessed the controlled substance, (he/she) intended (to sell it); [¶] 5A. The controlled substance in CT 4 was heroin, and in count 5 it was methamphetamine; [¶] AND [¶] 6. The controlled substance was in a usable amount." It also included "Selling for the purpose of this instruction means exchanging heroin and/or methamphetamine" for money, services, or anything of value.
This instruction properly defined the elements of the crime and was not confusing. It informed the jury it applied to two different counts, and it referred to a singular controlled substance in the first four elements, but element five specified "the controlled substance in count 4 was heroin, and in count 5 it was methamphetamine." Thus, the jury knew it had to find defendant possessed each substance with the intent to sell in order to be guilty of the respective charge. So there was no instruction error.
Defendant also argues the use of one instruction for both counts resulted in the need to instruct the jury with CALCRIM No. 3500 (unanimity) because the jury could have determined he possessed one substance for personal use and one substance for sale. Once more, we disagree.
CALCRIM No. 3500 states "The defendant is charged with ___. . . . [¶] The People have presented evidence of more than one act to prove the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed."
A unanimity instruction is required when the prosecution presents evidence of multiple acts to prove a single count in order "to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed." (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.)
There was no such danger in this case. Defendant had both heroin and methamphetamine on his person, and the jury heard expert testimony both were possessed for sale. Although defendant also had drug paraphernalia, the expert testified people commonly sold drugs to support personal use and thus it was common to find sellers carrying paraphernalia. And as discussed ante, the jury was properly instructed they had to find defendant possessed each of the substances with the intent to sell, and we presume they followed the court's instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) No unanimity instruction was required. 4. Section 667.5(b) Sentence Enhancements
Defendant's sentence included four one-year section 667.5(b) enhancements. Defendant argues, the Attorney General concedes, and we agree, these enhancements must be stricken because they no longer apply as a result of the ameliorative provisions of Senate Bill 136. (People v. Jennings (2019) 42 Cal.App.5th 664, 682.) Defendant contends we should not remand the case for resentencing because "[he] would receive no further benefit from remand." However, a remand for resentencing is required when part of a sentence is stricken on review unless the trial court originally imposed the maximum possible sentence. (People v. Buycks (2018) 5 Cal.5th 857, 893; Jennings, at p. 682.) Because the court did not impose the maximum sentence in this case, we will remand with directions to resentence defendant. We express no opinion on how the court should exercise its sentencing discretion on remand.
The court imposed two of the section 667.5(b) priors and stayed two. --------
DISPOSITION
The convictions are affirmed. The judgment is reversed, the section 667.5(b) enhancements are stricken, and the matter is remanded to the trial court with directions to resentence defendant.
THOMPSON, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.