Opinion
E064293
01-26-2017
THE PEOPLE, Plaintiff and Respondent, v. ANDRE PAUL SOLIZ, JR., Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Karl T. Terp, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SWF1400905) OPINION APPEAL from the Superior Court of Riverside County. Angel M. Bermudez, Judge. Affirmed. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Barry Carlton and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, defendant and appellant Andre Paul Soliz, Jr., was convicted of robbery (Pen. Code, § 211 ) and resisting arrest (§ 69); and it was found true that he used a deadly weapon, a knife, during the commission of the robbery (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)). Defendant was sentenced to a total prison term of seven years eight months. On appeal, he asserts the trial court committed instructional error. He further requests that this court independently review the trial court's in camera ruling on defendant's motion for disclosure of information from peace officers' confidential personnel files. We find no error and affirm.
All further statutory references are to the Penal Code.
I. FACTS
On March 10, 2014, defendant entered the Tobacco King smoke shop owned by Mohamad Kafarah and walked up to the store counter. Fareed Kafarah, Mohammad's father and employee, recognized defendant as a former customer. Defendant asked for a pack of Marlboro Red Box cigarettes. When Fareed placed them on the counter, defendant grabbed them and walked out of the store without paying. Mohamad watched the incident on video monitors.
Fareed followed defendant outside and confronted him, trying to take back the cigarettes. Defendant threw some change on the ground towards Fareed and swung his fist at him. Concerned for his father's safety, Mohamad left the store to follow the two men. When he caught up, defendant hit Mohamad in the face with his fist. The two fought until Mohamad got defendant in a headlock and started to choke him. They ended up on the ground, and Mohamad released defendant. Upon being released, defendant pulled a knife as Mohamad took his father's arm and walked back to the store. Defendant swung the knife at Mohamad a "couple" of times. Mohamad was unarmed and feared being stabbed. Defendant fled, running around the side of the building. Mohamad called 911.
Officer Timothy Brewer saw defendant coming out of a housing development near the Tobacco King. He and another officer ordered defendant to stop, hold his hands up, and get down on his knees. Defendant delayed complying for several minutes. Officer Brewer approached defendant and grabbed his wrist to put on the handcuffs. At the point Officer Brewer grabbed defendant's hand, defendant started squirming, "balled up," made a fist, and started pulling against the officer, refusing to submit to his control. Officer Brewer ordered defendant to stop resisting, but defendant did not comply. Thus, the officer placed his left knee on the defendant's shoulder and his other knee on the lower part of defendant's neck. Defendant continued resisting and kicked Officer Brewer in his ribs. Another officer, Officer Caballero, assisted Officer Brewer by pinning defendant's legs. A third officer, Officer Snell, placed a "hobble" on defendant's legs so he could not kick, however, defendant continued to struggle. Defendant's resistance presented a potential danger to himself or other officers.
Officers found a small black knife in defendant's pants pocket, and a packet of Marlboro cigarettes in his jacket pocket. Defendant admitted that the knife found in his pocket was the one he pulled on Fareed and Mohamad.
II. DISCUSSION
A. The Jury Was Properly Instructed Regarding Resisting Arrest.
Defendant contends the trial court prejudicially erred in failing to instruct the jury with the entire language in CALCRIM No. 2652 [Resisting an Executive Officer in Performance of Duty (Pen. Code, § 69)]. Specifically, he faults the court for failing to include the following language: "A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties)." (CALCRIM No. 2652.) The instruction further notes that CALCRIM No. 2670 "explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive)]." (CALCRIM No. 2652.) He asserts the jury could have concluded from Officer Brewer's testimony that the officer used excessive force when he placed his knee on defendant's lower neck.
The jury was instructed with CALCRIM No. 2652, as follows: "The defendant is charged in Count Three with resisting an executive officer in the performance of that officer's duty in violation of Penal Code section 69. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully used force or violence to resist an executive officer; [¶] 2. When the defendant acted, the officer was performing his lawful duty; AND [¶] 3. When the defendant acted, he knew the executive officer was performing his duty. [¶] An executive officer is a government official who may use his or her own discretion in performing his or her job duties. A peace officer is an executive officer. [¶] The duties of a peace officer includes arresting and detaining suspects." --------
In criminal proceedings, "a trial court must instruct on general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case. [Citation.] 'A trial court's duty to instruct, sua sponte, on particular defenses arises "'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.'"' [Citation.]" (People v. Martinez (2010) 47 Cal.4th 911, 953.) Substantial evidence of a defense is evidence, which, if believed, would be sufficient for a reasonable jury to find reasonable doubt of the defendant's guilt. (People v. Salas (2006) 37 Cal.4th 967, 982.) "Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused." (People v. Wilson (1967) 66 Cal.2d 749, 763.) However, "[a] jury instruction need not be given whenever any evidence is presented, no matter how weak. [Citation.] Rather, the accused must present 'evidence sufficient to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded that the particular facts underlying the instruction did exist. [Citation.]'" (People v. Strozier (1993) 20 Cal.App.4th 55, 63.)
Here, defendant failed to request any instruction on excessive force and the evidence did not raise the question of whether Officer Brewer either used excessive force or was lawfully performing his duties when arresting defendant. The uncontested facts show that that Officer Brewer responded to a 911 call about a robbery at the Tobacco King smoke shop. Officer Brewer arrived in his marked police car, saw defendant and repeated the commands of another officer to stop, put his (defendant's) hands up, and get on his knees. When defendant eventually complied, Officer Brewer attempted to put him in handcuffs. Officer Brewer grabbed defendant's hand, but defendant would not submit to the officer's control. Defendant "balled up," made a fist, and started pulling against the officer. Officer Brewer maintained a hold on defendant's wrist and kept telling defendant to stop resisting, but defendant refused to comply. The officer "muscled [defendant's] hands together and was able to finally get the handcuffs on him." Because of defendant's resistance, Officer Brewer employed the technique used to control noncompliant arrestees; he placed his left knee on the defendant's shoulder and his other knee on the lower part of defendant's neck. The officer was trained on this technique, had used it over a thousand times, and had never had any arrestees complain of physical injury. Defendant continued resisting and kicked Officer Brewer in his ribs, necessitating the assistance of two other officers.
During defendant's post-arrest interview, he never mentioned being in pain or the police hurting him. Defendant's theory of the case was that he "didn't use any force or violence. He didn't willfully on purpose . . . [kick] the officer." Alternatively, defendant argued that "he's pinned down to the ground in a very unpleasant position, hurting, and we have an involuntary jerk that hits Officer Brewer."
Our review of the record fails to find any support for defendant's argument that Officer Brewer used unreasonable or excessive force when arresting defendant. We therefore conclude the trial court properly omitted the last paragraph of CALCRIM No. 2652 when instructing the jury.
B. The Trial Court Did Not Err in Refusing to Instruct the Jury Regarding Self-defense.
Defendant contends the trial court erred by refusing to instruct the jury on self-defense. In requesting the instruction, defendant argued that the robbery ended after his tussle with Mohamad, and that he exhibited the knife, independent of the robbery, in self- defense after Mohamad put him in a headlock. On appeal, he asserts there was substantial evidence from which a jury could reasonably conclude that he "pulled the knife solely for the purpose of protecting himself from further assault by the store owners." He emphasizes the fact that the People dismissed count two, assault with a deadly weapon, and argues that the robbery was complete by the time he displayed the knife. We find no error.
A trial court must give a particular instruction requested by the defendant only when substantial evidence supports it. (People v. Romo (1990) 220 Cal.App.3d 514, 517.) For self-defense to apply, "one must actually and reasonably believe in the necessity of defending oneself from imminent danger of death or great bodily injury. [Citation.]" (People v. Randle (2005) 35 Cal.4th 987, 994, disapproved on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201.) "In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.'" (People v. Salas, supra, 37 Cal.4th at p. 982.) Whether the evidence is sufficient to support such an instruction is a question of law. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.)
There is no substantial evidence in support of a self-defense instruction. By the time defendant pulled a knife on Mohamad, Mohamad had released defendant, took his father's arm and was walking back to the store. Defendant could not have reasonably feared for his safety.
Nonetheless, defendant contends that he displayed the knife because he was on the losing end of a physical altercation with Mohamad, and after the robbery was complete. We reject this contention. Robbery continues through asportation (People v. Gomez (2008) 43 Cal.4th 249, 255-256) and defendant had not obtained a place of temporary safety when he pulled the knife on Mohamad. Moreover, the crime is still robbery even if the "'force or fear'" element comes into play during asportation. (Id. at p. 258, 265 [deprivation of property occurs when a perpetrator relies on force or fear to maintain possession against a victim who encounters him as he carries away the loot].) While trying to escape, defendant swung at Fareed and hit Mohamad in the face, causing Mohamad to strike back and wrestle defendant to the ground. When Mohamad released defendant, defendant still possessed the cigarettes and was still in Mohamad's immediate presence when he pulled the knife. All of this occurred during defendant's asportation of the property. Thus, the robbery was still in progress.
We reject defendant's attempt to parse the offense into individual steps in order to argue that the robbery was no longer occurring. Robbery is "not divisible into a series of separate acts. Defendant's guilt is not to be weighed at each step of the robbery as it unfolds. The events constituting the crime of robbery, although they may extend over large distances and take some time to complete, are linked by a single-mindedness of purpose. [Citation.]" (People v. Estes (1983) 147 Cal.App.3d 23, 28.) Here, the robbery did not end after defendant hit Mohamad. Rather, it continued as the two fought in the parking lot, Mohamad took defendant down, and defendant pulled the knife. The fact that Mohamad engaged in a physical altercation with defendant does not break the chain of events that constitutes the robbery. "We reject any effort by defendant to shift the blame to the victim. It is the conduct of the perpetrator who resorts to violence to further his theft, and not the decision of the victim to confront the perpetrator, that should be analyzed in considering whether a robbery has occurred." (People v. Gomez, supra, 43 Cal.4th at p. 264.)
In short, the trial court correctly refused to instruct the jury on self-defense because there was no substantial evidence in support of such an instruction. C. The Trial Court Properly Denied Defendant's Pitchess Motion.
Defendant asks us to review the trial court's in camera ruling on his motion for disclosure of information from peace officers' confidential personnel files pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). The People do not oppose the request.
1. Additional Factual and Procedural Background.
Before trial, defendant filed a Pitchess motion regarding Officers Brewer and Caballero. The City of Hemet opposed the motion.
The trial court found that defendant had shown good cause for an in camera hearing solely with respect to Officer Brewer. The in camera hearing was attended only by the City of Hemet's attorney and Hemet Police Department's custodian of records. After being sworn, the custodian testified that he had searched for records potentially responsive to the motion, but there were none. The trial court reviewed the records and found that there were no discoverable materials. On October 19, 2016, a second in camera hearing was held, wherein the trial court reviewed the records, made a record specifically identifying each complaint against the officer, and again found that there were no discoverable materials. Copies of the materials reviewed were provided to this court under seal.
2. Analysis.
Under Pitchess, "on a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.] . . . If the defendant establishes good cause, the court must review the requested records in camera to determine what information, if any, should be disclosed. [Citation.] Subject to certain statutory exceptions and limitations [citation], 'the trial court should then disclose to the defendant "such information [that] is relevant to the subject matter involved in the pending litigation."' [Citations.]" (People v. Gaines (2009) 46 Cal.4th 172, 179.)
The record of the in camera hearing is sealed, and neither appellate counsel for the defendant, nor counsel for the People are allowed to read it. (See People v. Hughes (2002) 27 Cal.4th 287, 330.) Thus, on request, the appellate court must independently review the sealed record. (People v. Prince (2007) 40 Cal.4th 1179, 1285.) Here, the record of the trial court's in camera examination of the officer's personnel file is adequate for our review. It demonstrates that the trial court followed the proper procedures (see People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229) and that there simply were no discoverable materials. We find no error.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
J. We concur: RAMIREZ
P. J. MCKINSTER
J.