People v. Denial CA2/2 ( 2023 )

Filed 8/24/23 P. v. Denial CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B319716
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA103580)
v.
CHRISTOPHER ROBERT
DENIAL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, William L. Sadler, Judge. Affirmed.
Jason A. Lieber, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Kenneth C. Byrne, Supervising
Deputy Attorney General, and Blake Armstrong, Deputy
Attorney General, for Plaintiff and Respondent.
******
Christopher Robert Denial (defendant) appeals his felony
conviction for battery with injury upon a police officer (Pen. Code,
§ 243, subd. (c)(2))1 and his misdemeanor conviction for
vandalism (§ 594, subd. (a)). He argues that the trial court
violated the confrontation clause in admitting the statements of
two non-testifying witnesses and asks us to independently review
the trial court’s examination of law enforcement personnel
records. Concluding there is no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On a Wednesday morning in early September 2020, a bus
driver and bus passenger approached two Beverly Hills police
officers. In agitated voices, they reported that a man who was
being chased for stealing food had “jumped on the bus” and was
“tearing [it] up” by “slamming his head against the bus” window
hard enough to knock the window open. The officers saw a man
who “appear[ed]” to be “calm[ly]” walking away from the bus, but
who was carrying a bag with unknown contents. That man was
defendant. The officers feared that defendant was “aggressive
and in some type of agitated state, and he could potentially harm
people on the bus.” When police attempted to place defendant in
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
handcuffs, defendant—who was 6 feet, 7 inches tall—resisted
“the whole time.” In order to get defendant to stop squirming,
the two officers brought defendant to the ground. Defendant
continued to resist, so they sprayed him with pepper spray.
When the spray had no effect and defendant bit one officer’s
finger and leg hard enough to break the skin, the officers hit him
several times in the head. However, it was not until three other
officers arrived that they were collectively able to place defendant
in handcuffs. The entire melee was recorded on the officers’ body
cameras. As defendant was being transported to the police
station, he bit through the wiring of the camera aimed at the
backseat of the patrol car, causing less than $400 in damage to
the equipment. This, too, was recorded on video.
II. Procedural Background
The People charged defendant with (1) battery with injury
upon a police officer (§ 243, subd. (c)(2)), and (2) vandalism
causing less than $400 in damage, which is a misdemeanor (§
594, subd. (a)).2
Defendant filed a motion pursuant to Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess), asking the trial court to
review the personnel records for the five police officers present for
the melee. After conducting an in camera review, the trial court
ordered that certain records be released to defendant.
2 The People initially also charged defendant with felony
vandalism (for causing damage exceeding $400) for the damage to
the bus’s windows, but dismissed that charge after the close of
evidence.
3
The matter proceeded to a three-day jury trial in March
2022.3 The trial court instructed the jury on the charged offenses
as well as the crime of battery (as a lesser included offense to
battery causing injury). Defendant argued that he was justified
in resisting arrest because the arresting officers were not
engaged in “lawful” conduct.
The jury convicted defendant of both counts.
The trial court sentenced defendant to 16 months in the
county jail for the battery causing injury count, and 180 days in
the county jail for the misdemeanor vandalism count; these
amounted to sentences of “time served.”
Defendant filed this timely appeal.
DISCUSSION
I. Admission of Bus Driver’s and Bus Passenger’s
Statements
A. Pertinent facts
1. Underlying events
Approximately five minutes before the bus driver and bus
passenger approached the two Beverly Hills police officers who
initially attempted to detain defendant, those officers had
stopped a homeless man for jaywalking. They did not touch him,
but detained him while asking him whether he was on probation,
whether he was carrying drugs, and whether he would consent to
a search.
The officers’ bodycams were turned on, and their
interaction with the man was recorded. Those videos captured
3 The trial court suspended proceedings after defendant’s
attorney declared a doubt about defendant’s competency, but
subsequently reinstated proceedings after defendant was found to
be competent.
4
the initial dialogue as the bus driver and bus passenger
interrupted the prior stop in order to alert the officers to
defendant’s conduct:
[Driver:] “He’s tearing up the bus.”
[Officer:] “Say what?”
[Driver:] “He’s tearing up the bus. He’s slamming his
head against the bus.”
[Officer:] “That guy?”
[Driver:] “Yeah. Right here.”
[Passenger:] “He just stole a bunch of food from a truck—I
got on and they were chasing him.”
[Driver:] “He jumped on the bus.”
[Passenger:] “He got on the bus and now he’s breaking the
windows.”
[Driver:] “He’s hitting his head against the window.”
[Officer:] “And he actually broke it?”
[Driver:] “He knocked it open. I gotta…”
[Officer:] “That guy?”
[Driver:] “Yeah, right there.”
[Passenger:] “He just stole a bunch of food at a convenience
store, . . . [b]y Crescent Heights. At Crescent Heights, they were
chasing him. He’s really very dangerous.”
2. Litigation of admissibility
On the first day of trial, defendant moved in limine to
admit the portion of the bodycam footage showing the officers’
interaction with the homeless man stopped for jaywalking, to
show that the officers were “bias[ed]” against, or had “animosity”
towards, homeless persons. Over the prosecutor’s objection, the
court admitted the evidence, but further ruled that this evidence
would make relevant—and hence open the door for admitting—
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the bus driver’s and bus passenger’s statements to the officers for
the nonhearsay purpose of showing that the officers’ interaction
with defendant was not due to any bias against homeless persons
but rather to respond to the ruckus he was causing on the bus.
Later during the trial, the trial court further explained that
the bus driver’s and bus passenger’s statements were also (1)
admissible for their truth to show “why [the officers] detained
[defendant],” reasoning that the statements fit into the “excited
utterance” exception to the hearsay rule (because the declarants
were “a little excited and emotional” and “the incident [on the bus
had] just occurred”); and (2) not “testimonial” statements subject
to the confrontation clause because the exchange between them
and the officers was “made in the furtherance of [obtaining]
assistance [and] help” in response to the ongoing emergency of
defendant’s erratic and potentially dangerous behavior, and not
“for a police report or for some sort of evidentiary purposes.”
3. Use of evidence at trial
The People introduced the portion of the bodycam video
showing the bus driver’s and bus passenger’s statements to the
officers. Defendant introduced the portion of the bodycam video
showing the officers’ interaction with the homeless man. During
closing argument, defendant argued that this video “plays an
important role in how [the officers] view what their performance
of a lawful duty is.”
B. Analysis
Defendant argues that the trial court erred in admitting
the bus driver’s and bus passenger’s statements, and more
specifically argues that their admission violated the confrontation
clause. We generally review the admission of evidence for an
abuse of discretion (People v. Parker (2022) 13 Cal.5th 1, 39), but
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independently review the application of constitutional law to
undisputed facts (People v. Garcia (2020) 46 Cal.App.5th 123,
168).4
The trial court did not err in admitting the bus driver’s and
bus passenger’s statements. As the trial court’s rulings
indicated, the court seemed to admit these statements for two
reasons—namely, (1) as evidence that the officers were not acting
with any anti-homeless person bias when they approached
defendant, and (2) as evidence that the officers had probable
cause to detain defendant, and hence were engaged in their
lawful duties when they approached defendant.
When admitted to show the absence of bias, these
statements were not hearsay at all; instead, they were admitted
to show what the officers knew or believed at the time they
approached defendant, and hence the statements were admitted
to show their “effect on the hearer” (in this case, the officers).
Because the statements were not hearsay for this purpose (as the
effect on the officers was the same whether or not what the
declarants said was true), both the hearsay rule and the
confrontation clause are inapplicable. (People v. Ervine (2009) 47
Cal.4th 745, 775-776 [statements not offered for their truth are
not hearsay and do not “run afoul of the confrontation clause”];
People v. Scalzi (1981) 126 Cal.App.3d 901, 907 [statements
admitted to show effect on hearer are admissible]; People v.
Hopson (2017) 3 Cal.5th 424, 432 [statements that are not
admitted for their truth do not implicate the confrontation
4 The People argue that defendant forfeited this issue by not
making a proper confrontation clause-based objection. This
argument ignores that defendant specifically “object[ed] under
the violation of the confrontation clause.”
7
clause]; Crawford v. Washington (2004) 541 U.S. 36, 59, fn. 9
(Crawford).) Although the trial court did not instruct the jury
only to consider the statements for this nonhearsay purpose, the
lack of an instruction is of no concern because defendant never
asked for such an instruction (as is required) (Evid. Code, § 355),
and because, as discussed next, the statements were also
independently admissible for their truth.
When admitted to show probable cause (and, as we will
assume for purposes of this argument, admitted for their truth),
the statements are still admissible. For this purpose, the
statements are hearsay, but they constitute an excited utterance
(see Evid. Code, § 1240), and defendant does not dispute the
applicability of that exception on appeal. The statements are also
not “testimonial” under the confrontation clause. Crawford
narrowed the confrontation clause to reach only those out-of-
court statements that are “testimonial” (Davis v. Washington
(2006) 547 U.S. 813, 824 (Davis); Whorton v. Bockting (2007) 549
U.S. 406, 420), and subsequent cases have defined “testimonial”
statements as those made with a “primary purpose of creating an
out-of-court substitute for trial testimony” (Michigan v. Bryant
(2011) 562 U.S. 344, 358 (Bryant)). Because this definition does
not reach statements whose “primary purpose” is to “enable
police assistance to meet an ongoing emergency,” the
confrontation clause does not apply to such statements. (Davis,
at p. 828; Bryant, at p. 359.) That is precisely the type of
statement we have here. The bus driver’s and bus passenger’s
“primary purpose” in contacting the two police officers was to
report the ongoing emergency of a man “tearing up” the bus and
slamming his head against the interior windows of the bus. Had
they called 911 to report this incident, there is no question that
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the content of that call would not be “testimonial”; their conduct
in walking over to the police officers to report the incident is
functionally no different. (Accord, People v. Corella (2004) 122
Cal.App.4th 461, 469; People v. Byron (2009) 170 Cal.App.4th
657, 675-676; People v. Saracoglu (2007) 152 Cal.App.4th 1584,
1596-1598.)
Defendant responds with two arguments.
First, defendant argues that there was no longer an
“ongoing emergency” at the time the officers approached him
because he was no longer attacking the bus and otherwise
appeared “calm.” This argument is explicitly foreclosed by
Bryant. In Bryant, police responded to a man who lay dying in a
gas station; when they asked him what happened, he reported
that defendant had shot him 25 minutes earlier. Before the
Supreme Court, defendant argued that his victim’s statements
were “testimonial” because there was no longer any “ongoing
emergency” because defendant had last fired a shot 25 minutes
earlier; Bryant rejected that argument, reasoning that “the scope
of an emergency in terms of its threat to individuals other than
the initial assailant and victim” are context specific, and that
statements can be made with the “primary purpose” of
responding to an ongoing emergency even if the “precise[]”
“violent act” that prompted the statements has concluded.
(Bryant, supra, 562 U.S. at pp. 372, 374.) Here, defendant may
no longer have been threatening the bus driver and bus
passengers once he got off the bus, but his erratic behavior was
equally dangerous to anyone else he encountered—particularly
when he was carrying a bag with unknown contents.
Second, defendant argues that admission of this evidence
violated Evidence Code section 352 because its probative value
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was substantially outweighed by the danger of undue prejudice.
Specifically, he urges that the bus driver’s and bus passenger’s
accounts of what he did on the bus have little probative value
because they do not prove any of the crimes he subsequently
committed (namely, the battery on the officer or the vandalism to
the patrol car), and are very prejudicial because they involved
“uncharged and unproven crimes that disturbed the . . . peace.”
Defendant forfeited this argument before the trial court by not
objecting on this basis below (Evid. Code, § 353), and waived this
argument on appeal by waiting until his reply brief to raise it
(Garcia v. McCutchen (1997) 16 Cal.4th 469, 482, fn. 10). But
even if we were to ignore these deficiencies, and even if we were
to assume for purposes of argument that Evidence Code section
352 would be violated, the admission of this evidence was not
prejudicial because the evidence of defendant’s guilt of the
charged crimes was overwhelming: Both his battery of the officer
causing injury and his vandalizing the back of the patrol car were
caught on video. Defendant at one point urges that the
statements were “so prejudicial” that they rise above harmless
error; we are not sure what that even means. There is no such
thing as “super prejudicial errors,” and the uniform weight of
precedent treats the erroneous admission of evidence like any
other error review for harmlessness.
II. Pitchess Review
Defendant also asks us to examine whether the trial court
properly conducted its in camera Pitchess hearing. Where, as
here, the trial court finds good cause to examine a law
enforcement officer’s personnel file for potentially discoverable
information, the court must conduct an in camera hearing at
which it examines the file and must “make a record of what
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documents it examined before ruling on the Pitchess motion.”
(People v. Mooc (2001) 26 Cal.4th 1216, 1229.) The court's ruling
will be upheld absent an abuse of discretion. (Id. at p.
1228.) Here, the trial court found good cause to examine the
officers’ records and ordered disclosure as to some of those
records. We have independently reviewed the sealed reporter’s
transcript of the in camera hearing, and conclude that the trial
court properly exercised its discretion and that no other
personnel records of the five officers at issue were subject to
disclosure. To the extent defendant asks for a more detailed
analysis of our review, he is not entitled to such analysis and we
decline his invitation.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, P. J.
LUI
_________________________, J.
ASHMANN-GERST
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