People v. Wood CA2/5 ( 2020 )

Filed 10/16/20 P. v. Wood CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B296656
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA468256)
v.
DINO EUGENE WOOD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Terry Bork, Judge. Affirmed as modified.
Russell S. Babcock, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, David E. Madeo, Acting Supervising
Deputy Attorney General, and Kathy S. Pomerantz, Deputy
Attorney General, for Plaintiff and Respondent.
A jury found defendant and appellant Dino Wood
(defendant) guilty of resisting an officer, unlawful possession of a
firearm, and possession of a concealed firearm. We principally
consider whether the trial court should have granted defendant’s
pretrial motion to suppress, which argued the police officers who
stopped defendant and conducted a pat down search of his person
lacked the suspicion necessary to justify such a search. We also
decide a handful of additional claims defendant raises concerning
the sufficiency of the evidence supporting his resisting an officer
conviction, the admissibility of gang graffiti evidence, the trial
court’s ruling on a Pitchess1 motion, and the manner in which the
court struck certain sentencing enhancements.
I. BACKGROUND
A. The Charges and Defendant’s Suppression Motion
In August 2018, the Los Angeles District Attorney’s Office
filed a three-count information against defendant. Count one
charged a violation of Penal Code section 692 and alleged he
knowingly resisted a police officer and unlawfully attempted, by
means of threat and violence, to prevent the officer from
performing a duty imposed by law. Count two alleged defendant,
who had prior felony convictions, unlawfully possessed a firearm
in violation of section 29800, subdivision (a)(1). Count three
alleged defendant was a previously convicted person in
possession of a concealed firearm in violation of section 25400,
1
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
Undesignated statutory citations that follow are to the
Penal Code.
2
subdivision (a)(2). The information further alleged defendant
had been previously convicted of a serious and/or violent felony,
and had also been convicted of other felony offenses.
Defendant filed a pretrial suppression motion. The motion
sought to suppress weapons and narcotics recovered from
defendant’s person and statements defendant made to
apprehending officers. Defendant argued his detention and the
search of his person was not justified by the requisite suspicion.
The trial court held an evidentiary hearing.
Los Angeles Police Department Officer Anthony Cabriales,
one of the apprehending officers, testified at the hearing. He and
his partner Officer Elizabeth Felix were patrolling the area of
60th Street and St. Andrews in uniform on May 20, 2018. The
location is a high-crime area in which a number of cars are
stripped for parts. Gang officers had referred Officer Cabriales to
that area to be on the lookout for narcotic-related crimes, grand
theft auto, and car stripping. There is also a problem with guns
in the area, and almost all of the stolen vehicle and car stripping
cases Officer Cabriales investigated involved some sort of weapon
or tools used to strip vehicles such as screwdrivers, crowbars, or
other tools which can be used as weapons.
During their patrol, Officers Cabriales and Felix drove past
a parked Honda Accord, a commonly stolen make and model, that
had its front hood open and three occupants inside. Considering
the location where the car was parked and the referral from the
gang officers, he believed the car’s occupants were possibly
stripping the vehicle for parts.
Officer Cabriales and Officer Felix ran the car’s license
plate and learned it was a recovered stolen vehicle. This meant,
at least according to the police computer, that the vehicle had
3
been previously stolen but had since been returned to the owner.3
Officer Cabriales decided to get a closer look at the car, and when
he did, he saw the driver hand what he believed to be an alcoholic
beverage container to the person sitting in the back seat of the
car, who was later identified as defendant.4
The man sitting in the Honda’s driver’s seat got out of the
car as the officers approached, and Officer Cabriales ordered the
other two occupants (defendant in the back seat and a woman in
the front passenger seat) to step out of the vehicle as well.
Officer Cabriales believed a pat down search of the car’s
occupants, for officer safety reasons, was warranted under the
circumstances—which included his knowledge of criminal activity
in the area where the car was parked; the possibility he was
dealing with a car stripping, a crime in which, in his experience,
perpetrators are commonly armed; his inability to tell whether
the car’s occupants were concealing weapons because several of
3
Officer Cabriales testified that just because a car had been
stolen and recovered previously did not mean it was not currently
an unreported stolen car, noting he had known vehicles to have
been stolen three or four times.
4
When asked if he saw the driver get out of the car and pass
an alcoholic beverage to someone still in the vehicle, Officer
Cabriales said that was correct. On cross-examination, Officer
Cabriales confirmed he had seen the driver of the car with an
open container, though he acknowledged he had not mentioned
the open container in his police report describing defendant’s
detention. Officer Cabriales also characterized the investigation
he conducted as being “a [grand theft auto] car stripping
investigation, drinking in public investigation.”
4
them were wearing loose, baggy clothing; the state of the car’s
interior, which was disheveled and indicated the dash had been
tampered with; and the presence of an open container indicating
people had been drinking.
Officer Cabriales and Officer Felix patted down the two
occupants who had been in the front seats. Officer Cabriales
then attempted to pat down defendant, but he was reluctant to
submit to a pat down. Defendant was standing with his hands in
his front pockets, and Officer Cabriales instructed him to take
them out. Defendant complied, and Officer Cabriales
subsequently saw a filled syringe that contained a substance
resembling heroin protruding from defendant’s back pocket.
Officer Cabriales attempted to place handcuffs on
defendant after seeing the syringe, but defendant tensed up and
prevented Officer Cabriales from handcuffing him. A struggle
ensued. Officer Cabriales took defendant to the ground and
Officer Felix tased defendant, but defendant continued to fight.
During the struggle, a gun fell out of defendant’s front pocket.
Officer Cabriales punched defendant several times, including in
the head, and Officer Cabriales eventually used an upper body
restraint hold to subdue defendant and take him into custody.
The trial court denied the motion to suppress. The court
found there was sufficient cause to order everyone out of the
vehicle and detain defendant. The court found that under the
totality of the circumstances, including what was believed to be
an open alcoholic beverage container being passed in the vehicle,
there was reasonable justification for a pat down search of the
vehicle’s occupants. The court further found that upon observing
the syringe containing what appeared to be heroin, there was
sufficient cause to arrest defendant and Officer Cabriales was
5
justified in not only continuing the pat down, but also in
performing a search incident to arrest. The court stated it found
Officer Cabriales’s testimony credible and concluded his actions
were reasonable under the circumstances.
B. Other Pertinent Pretrial Motions
Defendant filed a Pitchess motion and the court granted the
request for an in camera review of Officer Cabriales and Officer
Felix’s personnel files for any derogatory information regarding
credibility, fabrication of evidence, dishonesty in report writing,
or excessive force. The trial court held three in camera hearings
on the Pitchess motion and ultimately concluded there was no
discoverable information to be turned over to the defense.
Before trial, defendant also filed a second motion to
suppress the evidence that had been the subject of his prior
motion, arguing new evidence had come to light. Since the
hearing on the motion to suppress, defendant stated he received
additional statements from the officers involved, as well as
statements from witnesses defendant had not been able to
interview. The trial court denied the motion to relitigate the
issue, finding the evidence was not sufficient to warrant a second
motion.
Defendant also filed a motion in limine seeking to exclude
any reference at trial to his prior criminal history or probation
status, his invocation of his Fifth Amendment right to remain
silent, and his prior gang affiliation or tattoos. At the hearing on
the motion, the parties discussed a video of the struggle between
defendant and Officer Cabriales that was recorded by a
bystander acquaintance of defendant’s. In the video, the
acquaintance refers to defendant by the nickname “Bitter.” As to
6
that remark, defense counsel stated, “If that’s the audio on the
tape of the incident, I would just ask it not be highlighted or
referred to by the People in closing as having some significance
attached to it that we have no reason to believe that it does.
Other than that, if it’s just part of it, it’s just part of it.” The trial
court granted the defense motion as to defendant’s invocation of
his right to remain silent and any prior gang affiliation or tattoos,
except with regard to a tattoo on defendant’s arm and the “Bitter”
nickname audible on the video recording.
C. Trial
The prosecution called six witnesses at trial, including
Officers Cabriales and Felix. It also played a number of videos
for the jury, including video from Officer Cabriales’s body camera,
video from Officer Felix’s body camera, and the video recorded by
defendant’s acquaintance. The defense called one law
enforcement officer witness and played additional video footage.
1. Trial testimony concerning defendant’s
apprehension
At about 7:00 p.m. on May 20, 2018, Officers Cabriales and
Felix were patrolling when they observed a Honda parked on the
side of the road. The particular cul-de-sac where they
encountered the vehicle is a common gang hangout, stolen vehicle
dumping ground, and narcotics loitering location. There was
visible gang graffiti in the area.
The model of the Honda they observed is one that is often
stolen. Three people were sitting in the Honda, and Officer
Cabriales observed one of them pass what he believed to be an
open container of alcohol to defendant in the back seat. Based on
7
the location and condition of the car, Officer Cabriales thought it
was possible the car’s occupants were engaged in stripping the
car for parts.
Officer Felix used a computer to search the car’s license
plate number and told Officer Cabriales the vehicle was
“recovered stolen,” meaning it had been stolen and then
recovered and released to the owner. Officer Cabriales found this
significant because he previously experienced a situation in
which the police’s system reported a stolen car had been
returned, but the owner of the car still did not have possession of
it.
Officer Cabriales stopped the patrol vehicle to investigate.
As he and Officer Felix got out of their vehicle and approached,
they observed the Honda’s hood was up, the front windshield was
cracked, and the interior of the vehicle was disheveled. The dash
area of the car was loose to the point of almost popping off, the
back bumper of the car had collision damage, and it appeared the
trunk locking mechanism had been punched.
Inside the Honda, there was a rack of clothing in the back
seat. There was a tan can wedged between the passenger seat
and driver’s seat, which Officer Cabriales believed was an open
container of alcohol. The appearance and contents of the car, in
the officers’ view, were consistent with a stolen car in the process
of being stripped or a car in which people were living.
Officer Cabriales spoke to the person sitting in the Honda’s
driver’s seat first and tried to assess the situation and determine
who owned the car. The driver was wearing baggy clothing, and
Officer Cabriales asked the driver if he had any weapons and
performed a pat down search. Officer Cabriales then had the
driver step away and told defendant to exit the car, which he did.
8
(Officer Felix was speaking to the person sitting in the front
passenger seat, the sole female occupant of the car.) Defendant
was wearing a sweatshirt and repeatedly tried to put his hands
in the sweatshirt’s pockets. Officer Cabriales asked defendant to
keep his hands out of his pockets and informed defendant he was
going to pat him down. Defendant told Officer Cabriales he was
not violating any laws and protested the legitimacy of the search.
While Officer Cabriales was patting defendant down, he
discovered a syringe containing a substance Officer Cabriales
believed to be heroin. He then attempted to place defendant in
handcuffs for safety purposes. As Officer Cabriales did so,
defendant tensed, brought his arms closer together in front of his
body, and tried to secure an item in his front sweater pocket. A
struggle ensued, with defendant repeatedly attempting to turn
and face Officer Cabriales.
As the struggle continued, Officer Cabriales took defendant
to the ground with a leg sweep. Defendant landed on his hands
and knees, with Officer Cabriales on his back. Defendant then
struck Officer Cabriales in the face with his elbow and continued
to reach for one of his sweatshirt pockets. Officer Cabriales
responded by attempting to strike the side of defendant’s head to
bring him under control. At some point during the struggle,
Officer Cabriales touched the item in defendant’s sweatshirt
pocket, which felt like a heavy metal object consistent with a
firearm. Officer Cabriales asked Officer Felix to use her taser on
defendant and she did.
Defendant, however, continued fighting. During the
continued struggle, Officer Cabriales saw a firearm fall from
defendant’s pocket onto the ground. Officer Felix took the
firearm and placed it in her back pocket, but at the time, Officer
9
Cabriales did not know Officer Felix had secured the gun.5
Officer Cabriales subsequently gained control of defendant’s neck
and upper body area using what he described as a modified
carotid hold.6 At some point while Officer Cabriales had
defendant in the hold, defendant went limp. Officer Cabriales
then loosened his hold, but when he did, defendant again began
struggling and attempted to turn and face Officer Cabriales.
Eventually, a security guard working nearby came to
assist, and Officer Cabriales told him to sit on defendant’s legs.
The security guard did so as the officers continued trying to put
defendant’s arms behind his back. The security guard placed his
own handcuffs on one of defendant’s wrists, and joined it with
another set of handcuffs on the other wrist. He then found a
knife in defendant’s rear pocket. Other police officers later
arrived and assisted. Defendant was transported from the scene
in an ambulance. The other two occupants of the car were
questioned and released.
5
At some point, Officer Felix put out a call for assistance
because she feared for their lives. When Officer Cabriales heard
Officer Felix request help, he assumed Officer Felix had seen
another weapon that defendant was attempting to reach and
thought her call meant Officer Felix believed they would be
seriously injured or killed.
6
According to Officer Cabriales, he placed defendant in the
hold as a last-ditch effort to avoid shooting him, which Officer
Cabriales thought might become necessary because defendant
had immediate access to a weapon.
10
2. Evidence and testimony regarding gang graffiti
During trial, the prosecution introduced photographs
depicting gang-related graffiti in the area where defendant was
apprehended that was visible to Officer Cabriales as he
approached the Honda. It also played the video recorded by
defendant’s acquaintance in which the acquaintance referred to
defendant as “Bitter.”
During his testimony, Officer Cabriales identified
photographs of gang-related graffiti in the area in which he
encountered defendant. In his opinion, some of the graffiti
referred to the Florencia 13 criminal street gang. Later in the
proceedings, Officer Cabriales also testified he has previously
testified as a gang expert in superior court and identified some of
the graffiti in the area near the Honda as belonging to the Rollin
60’s gang. The prosecution then indicated it intended to replay
the acquaintance’s video previously shown to the jury.
Defendant objected and the trial court heard argument at
sidebar. Defendant argued the prosecution’s introduction of
evidence regarding gang graffiti in the area violated the court’s
ruling granting defendant’s motion in limine that sought to
exclude evidence of defendant’s prior gang membership.
Defendant additionally argued the video the prosecution was
asking to replay referred to defendant by a nickname the jurors
could improperly believe was a gang moniker. The prosecution
argued the gang graffiti was relevant to show the officer’s
concerns for safety and the reason for a pat down.
The trial court overruled the defense objection. As to the
gang graffiti, the trial court concluded it was probative and
relevant to the officers’ knowledge at the point they drove up and
interacted with the people in the car and the way they handled
11
the situation. The court also noted the video to which the defense
was objecting had been played for the jury the previous day
without objection, and was thus already before the jury.
D. Verdict and Sentencing
The jury convicted defendant on all three counts of the
information. The trial court subsequently held a bench trial and
found the prosecution proved four prior prison term allegations in
the information beyond a reasonable doubt. The court sentenced
defendant to six years in prison on count one. It imposed
concurrent sentences of six years in prison on counts two and
three. The court struck the section 667.5, subdivision (b)
allegations regarding the prior offenses for purposes of
sentencing and did not impose any sentencing enhancements.
II. DISCUSSION
Defendant’s contentions related to the propriety of his
detention and pat down are unpersuasive. Officer Cabriales
observed what he believed to be a violation of the law—namely,
defendant receiving an open container of alcohol while in a motor
vehicle on a highway. This was sufficient to justify an initial
detention, and based on the totality of the circumstances, the
subsequent pat down search was justified by concerns for officer
safety. Substantial evidence also supports defendant’s conviction
for resisting an executive officer. The officers were lawfully
performing their duties when they detained defendant and they
did not use unreasonable force in subduing defendant in light of
his continued combativeness.
Two of defendant’s three remaining appellate contentions
also fail. The trial court did not abuse its discretion by admitting
12
the gang graffiti evidence because it was relevant to the totality
of the circumstances confronting the officers during the detention
and pat down and did not tend to suggest defendant was a gang
member. The court also did not abuse its discretion in concluding
there were no Pitchess materials that should be disclosed to the
defense. We accept the Attorney General’s concession, however,
that the trial court’s decision to strike the one-year prior prison
term sentencing allegations should have been stricken for all
purposes, not just for purposes of sentencing, in light of a recent
change in law that applies retroactively.
A. The Motion to Suppress
Defendant contends Officers Cabriales and Felix lacked a
reasonable basis for ordering him out of the car and subjecting
him to a pat down search. Evaluating this contention requires us
to determine both whether the police lawfully detained defendant
and whether they lawfully conducted a pat down search for
weapons.
1. Standard of review
“‘In reviewing a suppression ruling, “we defer to the
superior court’s express and implied factual findings if they are
supported by substantial evidence, [but] we exercise our
independent judgment in determining the legality of a search on
the facts so found.”’ [Citation.]” (People v. Tully (2012) 54
Cal.4th 952, 979.) “Thus, while we ultimately exercise our
independent judgment to determine the constitutional propriety
of a search or seizure, we do so within the context of historical
facts determined by the trial court. ‘As the finder of fact . . . the
superior court is vested with the power to judge the credibility of
13
the witnesses, resolve any conflicts in the testimony, weigh the
evidence and draw factual inferences in deciding whether a
search is constitutionally unreasonable.’ [Citation.] We review
its factual findings ‘“‘under the deferential substantial-evidence
standard.’”’ [Citation.] Accordingly, ‘[w]e view the evidence in a
light most favorable to the order denying the motion to suppress’
[citation], and ‘[a]ny conflicts in the evidence are resolved in favor
of the superior court ruling’ [citation]. Moreover, the reviewing
court ‘must accept the trial court’s resolution of disputed facts
and its assessment of credibility.’ [Citation.]” (Ibid.)
2. The officers had a reasonable basis for
detaining defendant
An “officer who lacks probable cause to arrest can conduct a
brief investigative detention when there is ‘“some objective
manifestation” that criminal activity is afoot and that the person
to be stopped is engaged in that activity.’ [Citations.]” (People v.
Celis (2004) 33 Cal.4th 667, 674; People v. Dolly (2007) 40 Cal.4th
458, 463 [“An investigatory detention of an individual in a vehicle
is permissible . . . if supported by reasonable suspicion that the
individual has violated the law”].) “A detention is reasonable
under the Fourth Amendment when the detaining officer can
point to specific articulable facts that, considered in light of the
totality of the circumstances, provide some objective
manifestation that the person detained may be involved in
criminal activity.” (People v. Souza (1994) 9 Cal.4th 224, 231.)
Officer Cabriales testified he saw the person sitting in the
driver’s seat of the car pass what appeared to be an open
container of alcohol to defendant, who was sitting in the back
seat. The trial court expressly credited that testimony and it is
14
sufficient (even without consideration of the other circumstances
that hinted criminal activity may be afoot) to establish there was
an objective manifestation defendant was engaged in criminal
activity—namely, a violation of Vehicle Code section 23223,
subdivision (b), which provides “[a] passenger shall not have in
the passenger’s possession, while in a motor vehicle upon a
highway or on lands, as described in subdivision (c) of Section
23220, any bottle, can, or other receptacle containing any
alcoholic beverage that has been opened or a seal broken, or the
contents of which have been partially removed.”
Defendant argues the contrary, citing People v. Lopez
(1987) 197 Cal.App.3d 93—a case that holds a detention based on
Vehicle Code section 23223 was not justified because the
defendant was in a car in the parking lot of a public park, which
did not fall within the definition of “highway” for purposes of that
section. (Id. at 99-101.) Lopez is inapposite here, however,
because defendant concedes he was a passenger in a car parked
“on a public street.”
Defendant nevertheless contends Lopez is instructive
because there in fact “was no open container of alcohol,” which, to
defendant, means Officer Cabriales either testified he observed
an open container being passed as a pretense to justify the stop
or because he was just mistaken. We do not accept the former of
these suppositions because we give due deference to the trial
court’s finding that Officer Cabriales was a credible witness.
(People v. Williams (2015) 61 Cal.4th 1244, 1262.) And even if we
accept the latter supposition (mistake), that still would not defeat
the existence of a proper basis for the detention. (See, e.g., People
v. Espino (2016) 247 Cal.App.4th 746, 760 [arrest lawful where
15
officers made “good faith mistake of fact” that a diamond in the
defendant’s pocket was crack cocaine].)
3. The pat down search was lawful
In Terry v. Ohio (1968) 392 U.S. 1 (Terry), the Supreme
Court held “there must be a narrowly drawn authority to permit
a reasonable search for weapons for the protection of the police
officer, where he has reason to believe that he is dealing with an
armed and dangerous individual, regardless of whether he has
probable cause to arrest the individual for a crime. The officer
need not be absolutely certain that the individual is armed; the
issue is whether a reasonably prudent man in the circumstances
would be warranted in the belief that his safety or that of others
was in danger. [Citations.] And in determining whether the
officer acted reasonably in such circumstances, due weight must
be given, not to his inchoate and unparticularized suspicion or
‘hunch,’ but to the specific reasonable inferences which he is
entitled to draw from the facts in light of his experience.
[Citation.]” (Id. at 27, fn. omitted; see also People v. Avila (1997)
58 Cal.App.4th 1069, 1074.) A Terry pat down search is proper if
there is a substantial possibility the person is armed. (People v.
Osborne (2009) 175 Cal.App.4th 1052, 1061.)
There were a number of factors indicating Officer Cabriales
reasonably suspected his safety, and Officer Felix’s safety, were
in danger. The officers encountered defendant and his
companions in an area where cars are frequently stripped and
where Officer Cabriales had been sent by gang detail officers to
be on the lookout for car stripping. While the location and time of
an encounter “are insufficient by themselves to cast reasonable
suspicion on an individual” (People v. Medina (2003) 110
16
Cal.App.4th 171, 177), the fact that an area “‘involved increased
gang activity may be considered if it is relevant to an officer’s
belief the detainee is armed and dangerous’” (In re Frank V.
(1991) 233 Cal.App.3d 1232, 1241). Officer Cabriales also knew
from experience that individuals engaging in car stripping are
often armed. He observed the driver pass what he believed to be
an open container of alcohol back to defendant. There was thus
reason to suspect at least one person had been drinking and
might have been under the influence of alcohol. And the officers
were outnumbered by the occupants of the car, a circumstance
that may justify a pat down search for weapons. (See People v.
Castaneda (1995) 35 Cal.App.4th 1222, 1230.)
Officer Cabriales cited many of these factors when he
explained his reasons for conducting the pat down search at the
hearing on the motion to suppress. He specifically mentioned his
knowledge of the area, the possibility he was dealing with a car
stripping, his inability to verify if the car’s occupants were
concealing weapons because several of them were wearing loose,
baggy clothing, the state of the car’s interior, which was
disheveled and indicated the dash had been tampered with, and
the presence of an open container indicating people had been
drinking. Additionally, when defendant exited the car and began
speaking with Officer Cabriales, Officer Cabriales noted
defendant stood with his hands in his front pockets.
Based on all these observed facts, a reasonably prudent
person could appropriately believe his or her safety was in danger
and a limited pat down search was warranted. That is all Terry
requires to justify the stop. Though defendant generally argues
the contrary, the only specific argument he advances to challenge
the pat down search relates to the nature of his probationary
17
status at the time of the encounter, a status of which the officers
were not aware. Because we do not consider that factor in
concluding the pat down was justified under the circumstances,
we need not address the point.
B. Substantial Evidence Supports Defendant’s
Conviction for Resisting Arrest
When we consider a challenge to the sufficiency of the
evidence to support a criminal conviction, we review the 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. Westerfield (2019) 6 Cal.5th 632,
713; see also Evid. Code, § 411; People v. Jones (2013) 57 Cal.4th
899, 963-964 [testimony of a single witness suffices to support a
conviction unless physically impossible or inherently
improbable].)
Section 69, the pertinent statute of conviction, provides
“[e]very person who attempts, by means of any threat or violence,
to deter or prevent an executive officer from performing any duty
imposed upon the officer by law, or who knowingly resists, by
the use of force or violence, the officer, in the performance of his
or her duty, is punishable by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment pursuant to subdivision (h)
of Section 1170, or in a county jail not exceeding one year, or by
both such fine and imprisonment.” Defendant argues there is
insufficient evidence to support his conviction under this section
because there is no substantial evidence the officers were
performing lawful duties; in defendant’s view, the officers had no
18
legal justification to detain defendant. Defendant also argues the
evidence is insufficient because the officers used excessive or
unreasonable force.
Defendant’s first contention fails for essentially the same
reason the trial court properly denied the motion to suppress. At
trial, Officer Cabriales testified he saw the driver hand defendant
an open container that the officer believed was an open container
of alcohol. This is substantial evidence Officer Cabriales had
cause to detain defendant. Defendant contends it was “patently
unreasonable” for any juror to accept Officer Cabriales’s
testimony that he observed an open container of alcohol because
he did not share his observation with Officer Felix, did not
mention the open container to defendant or the other occupants
of the car, and could not recall if defendant smelled of alcohol.
Defendant again asks us to reweigh the evidence and reach a
different credibility determination than the one the jury
impliedly reached. That is inconsistent with the governing
standard of review.
Defendant’s second insufficient evidence theory is also
unmeritorious because substantial evidence supports the jury’s
implied finding that the officers’ use of force was reasonable.
“[W]hen an officer uses excessive force in making an arrest or
detention, the officer is not engaged in the lawful performance of
his or her duties.” (People v. Williams (2018) 26 Cal.App.5th 71,
73.) “The reasonableness of a particular use of force is judged
from the perspective of a reasonable officer on the scene, not by
the 20/20 vision of hindsight. The inquiry is an objective one:
Was the officer’s action objectively reasonable in light of the facts
and circumstances confronting him, without regard to his
underlying intent or motivation? [Citation.] [This] is a pure
19
question of fact . . . .” (In re Joseph F. (2000) 85 Cal.App.4th 975,
989.)
Defendant does not contend the officers’ use of force was
unreasonable during the entire incident. Nor does he pinpoint
exactly when he believes the use of force became unreasonable,
instead arguing that “[s]omewhere between” Officer Cabriales
hitting defendant in the head, Officer Felix tasing defendant, and
Officer Cabriales using a “chokehold” on defendant “even after
the gun was recovered and placed out of [defendant’s] reach, a
line was crossed from possibly reasonable force to absolutely
excessive and unreasonable force.”
Officer Cabriales testified that once he began attempting to
handcuff defendant, defendant tensed and resisted his attempts,
trying to bring his arms toward the front of his body and turning
to face Officer Cabriales. Officer Cabriales performed a leg sweep
and took defendant to the ground, at which point defendant
struck Officer Cabriales in the face with his elbow. Officer
Cabriales struck defendant in the head but defendant continued
to resist and attempt to secure an item in his front sweater
pocket. He continued struggling even after Officer Felix tased
him.
A gun fell from defendant’s pocket to the ground. Officer
Cabriales knew the gun had fallen, but he did not know precisely
when his partner recovered the gun. Believing defendant had
access to a weapon (or additional weapons), Officer Cabriales put
him in what he characterized as a modified carotid restraining
hold. Throughout, defendant continued to fight. Officer Felix
feared for their lives, and so made a call to request help, which is
an extreme request for an officer to make. Additionally, all of
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this took place in what Officer Cabriales knew to be a generally
dangerous location, with a significant amount of gang activity.
Under the circumstances, there is substantial evidence
supporting the jury’s implied finding that the officers’ actions
were objectively reasonable. Defendant struggled against Officer
Cabriales’s attempt to handcuff him from the beginning. The
altercation escalated when defendant struck Officer Cabriales in
the head and when the officers became aware a gun had fallen
from defendant’s pocket. At least one of the officers, Officer
Cabriales, did not know precisely when the gun was secured out
of defendant’s reach. In addition, defendant was tased twice and
still continued fighting, the officers had reason to believe
defendant was then under the influence of alcohol, and
defendant was strong enough and his resistance significant
enough that the two officers were unable to subdue him alone.
These facts are substantial evidence supporting the jury’s
determination that the escalating use of force was reasonable.
C. The Trial Court Did Not Abuse Its Discretion by
Admitting the Gang Graffiti Evidence
Evidence is generally admissible if its probative value is
not substantially outweighed by the probability that it will
unduly consume time, “create substantial danger of undue
prejudice,” confuse the issues, or mislead the jury. (Evid. Code,
§ 352.) Evidence is probative if it “tends ‘logically, naturally, and
by reasonable inference’ to establish material facts such as
identity, intent, or motive. [Citations.]” (People v. Garceau
(1993) 6 Cal.4th 140, 177, overruled on another ground in People
v. Yeoman (2003) 31 Cal.4th 93, 117-118.) Although gang-related
evidence may have a “‘highly inflammatory’” impact (People v.
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Samaniego (2009) 172 Cal.App.4th 1148, 1167 (Samaniego)), it
“is often relevant to, and admissible regarding, the charged
offense.” (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.)
Gang-related evidence may be admitted “if it is relevant to a
material issue in the case other than character, is not more
prejudicial than probative, and is not cumulative.” (Samaniego,
supra, at 1167.) “[T]he decision on whether evidence, including
gang evidence, is relevant, not unduly prejudicial and thus
admissible, rests within the discretion of the trial court.” (People
v. Albarran (2007) 149 Cal.App.4th 214, 224-225 (Albarran).) We
review the trial court’s ruling for abuse of discretion. (Id. at 225.)
Here, the gang graffiti evidence admitted was relevant to
whether Officer Cabriales was reasonably concerned for officer
safety—his own and Officer Felix’s—when he detained defendant
and patted him down. Though not dispositive on its own, the
location of the encounter between the officers and defendant,
including the presence of gang graffiti, was relevant to
establishing the facts known to the officers when investigating
the situation and assessing potential threats to their safety.
Additionally, we do not find the gang evidence was unduly
prejudicial. “Prejudice” in the context of this statute “is not
synonymous with ‘damaging’: it refers to evidence that poses an
intolerable risk to the fairness of the proceedings or reliability of
the outcome.” (People v. Booker (2011) 51 Cal.4th 141, 188.)
Undue prejudice is that which “‘uniquely tends to evoke an
emotional bias against a party as an individual, while having
only slight probative value with regard to the issues.’” (People v.
Robinson (2005) 37 Cal.4th 592, 632, quoting People v. Crittenden
(1994) 9 Cal.4th 83, 134.)
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The gang graffiti evidence did not tend to evoke an
emotional bias against defendant. The prosecution’s questioning
centered around gang graffiti in the area in an effort to support
Officer Cabriales’s statement that it was a high-crime area. The
prosecution did not argue or suggest defendant was a gang
member himself. Indeed, the only evidence that might have
suggested defendant was a gang member was the video taken by
defendant’s acquaintance in which he referred to defendant as
“Bitter.” The prosecution informed the jury “Bitter” was
defendant’s nickname. It neither commented on the nature of the
nickname nor established or implied the nickname was a gang
moniker. Moreover, defendant did not object when the video was
first played, and the transcript was distributed to the jury. Any
objection to the admission of that evidence, in particular, was
forfeited.
We similarly reject the associated contention that
admission of the gang graffiti evidence rendered the trial
fundamentally unfair. “‘As a general matter, the ordinary rules
of evidence do not impermissibly infringe on the accused’s right
to present a defense.’” (People v. Hawthorne (1992) 4 Cal.4th 43,
58.) The mere erroneous exercise of discretion under ordinary
rules of evidence does not implicate the federal Constitution.
(People v. Cudjo (1993) 6 Cal.4th 585, 611.) To prove a
deprivation of federal due process rights, defendants must satisfy
a high constitutional standard to show that the erroneous
admission of evidence resulted in an unfair trial. “Only if there
are no permissible inferences the jury may draw from the
evidence can its admission violate due process. Even then, the
evidence must ‘be of such quality as necessarily prevents a fair
trial.’ [Citations.] Only under such circumstances can it be
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inferred that the jury must have used the evidence for an
improper purpose.” (Jammal v. Van de Kamp (9th Cir. 1991) 926
F.2d 918, 920; Albarran, supra, 149 Cal.App.4th at 232.) Here,
permissible inferences were available to the jury. As already
explained, the photos and testimony concerning gang graffiti was
relevant to demonstrate the circumstances that confronted the
officers when they encountered defendant and the others in the
car.
D. The Pitchess Ruling Is Not Erroneous
The trial court held in camera Pitchess proceedings to
consider whether there were any issues of credibility, fabrication
of evidence, dishonesty in report writing, and excessive force for
Officers Cabriales and Felix. The trial court held three in camera
hearings to examine records of any complaints made against the
officers. The trial court did not order disclosure of any
discoverable material to the defense.
At defendant’s request, we have reviewed the sealed
transcripts of the in camera proceedings. (See generally People v.
Mooc (2001) 26 Cal.4th 1216, 1228-1232.) The transcripts of the
in camera hearings constitute an adequate record of the trial
court’s review of any documents it received. There was no abuse
of discretion in determining there were no records that should be
disclosed to the defense.
E. The Prior Prison Term Enhancements
Effective January 1, 2020, Senate Bill No. 136 amended
section 667.5, subdivision (b) to provide that its one-year prior
prison term sentencing enhancement applies only to sexually
violent offenses, as defined in Welfare and Institutions Code
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section 6600, subdivision (b). (People v. Jennings (2019) 42
Cal.App.5th 664, 681 (Jennings); People v. Lopez (2019) 42
Cal.App.5th 337, 340-341 (Lopez).) The trial court here found
true four prior prison term sentencing enhancement allegations
in the information but struck the enhancements for purposes of
sentencing.
Defendant argues, and the Attorney General agrees, that
Senate Bill No. 136 applies retroactively to defendant because his
sentence is not final. (See Jennings, supra, 42 Cal.App.5th at 682
[“Senate Bill No. 136’s . . . amendment to section 667.5,
subdivision (b) applies retroactively to all cases not yet final as of
its January 1, 2020, effective date”]; Lopez, supra, 42 Cal.App.5th
at 341-342 [applying Senate Bill No. 136 retroactively].) Both
parties also agree that none of the convictions underlying
defendant’s prior prison term enhancement allegations
constitutes a sexually violent offense identified in Welfare and
Institutions Code section 6600, subdivision (b), and therefore the
prior prison term sentencing enhancements cannot be imposed in
this case. Defendant also argues, and the Attorney General
again agrees, that the trial court should have stricken all four
one-year prior prison term enhancements for all purposes, rather
than just for sentencing.
Although the trial court struck the four prior prison term
sentencing enhancements for purposes of sentencing, the trial
court confirmed its true findings as to those enhancements at the
sentencing hearing. The true findings on the enhancements are
also confirmed in the court’s minutes. As those enhancements
cannot be true as to defendant given the change in the law, they
must be stricken for all purposes. Because the trial court is not
vested with any new discretion regarding sentencing, there is no
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reason to remand the matter. We will modify the judgment to
strike the true findings as to the four prior prison term
sentencing enhancements.
DISPOSITION
The judgment is modified to strike in their entirety the true
findings on defendant’s prior prison term sentencing
enhancement allegations. The judgment is affirmed as so
modified and the trial court shall prepare a corrected abstract of
judgment and deliver it to the Department of Corrections and
Rehabilitation.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
RUBIN, P. J.
MOOR, J.
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