P v. Alejandro CA4/3 ( 2023 )

Filed 9/8/23 P v. Alejandro CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G061118
v. (Super. Ct. No. 17NF1221)
DANIEL ALEJANDRO, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County, Elizabeth
G. Macias, Judge. Affirmed in part, reversed in part, and remanded with directions.
Robert L. Hernandez, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters and Charles C. Ragland,
Assistant Attorneys General, Eric A. Swenson, Felicity Senoski and Michael Patty,
Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted defendant Daniel Alejandro of hit and run with injury
(Veh. Code, § 20001, subd. (a); count 1)), misdemeanor resisting and obstructing an
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officer (Pen. Code, § 148, subd. (a)(1); count 2), driving under the influence of alcohol
causing injury (Veh. Code, § 23153, subd. (a); count 3), and driving with a blood alcohol
concentration of 0.08 percent or more causing injury (Veh. Code, § 23153, subd. (b);
count 4). The court suspended imposition of sentence on counts 1, 2, and 3, placed
defendant on formal probation for three years with certain terms and conditions, and
stayed sentence on count 4 pursuant to section 654. The court also imposed fines and
fees.
On appeal, defendant contends the evidence was insufficient to support his
conviction on counts 1 and 2. He also argues this court should independently review the
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court’s Pitchess ruling with respect to two officers’ records. We disagree with
defendant’s contentions, but we agree the court failed to conduct an adequate Pitchess
review. We accordingly conditionally reverse the judgment and remand to the court with
directions to hold a new Pitchess hearing. In all other respects the judgment is affirmed.
FACTS
On March 19, 2017, at around 7:00 a.m., T.K. and her then-boyfriend, R.P.,
were driving in separate vehicles close to one another in the City of Fullerton. They each
had the other’s child in their vehicles. As they drove through an intersection, defendant’s
vehicle traveled between them and hit the right side of T.K.’s vehicle. T.K. and R.P.
attempted to pull over, but defendant did not stop. T.K. and R.P. then followed
defendant’s vehicle. When defendant stopped at a red light, R.P. got out of his vehicle,
1
All further statutory references are to the Penal Code unless otherwise
stated.
2
(Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).)
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approached defendant’s vehicle, and banged on the driver’s side window to get
defendant’s attention. R.P. noticed defendant looked “kind of dazed” and there was a
passenger in the front seat and another passenger laying across the back seat. Defendant
did not look at R.P. and drove away when the light turned green. Before he drove away,
T.K. took a picture of the license plate on defendant’s vehicle and called the police. The
police asked if she needed paramedics, and she said, “‘No, I think we are fine.’”
When police arrived, T.K. and R.P. provided a description of defendant and
his license plate number. Officer Song then initiated a hit-and-run investigation and
found defendant’s vehicle in a 15-minute parking zone near his apartment. The hood of
the vehicle was warm, and there was collision damage on the left side of the car. The
driver’s side window was slightly open, and the trunk was unlatched. Based on this
information, Officer Song believed the driver was in a hurry to get home to get his
property and “leave town.”
Officer Song waited for backup, and when Officer Sepulveda arrived, they
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went to defendant’s apartment, knocked on the door, and announced their presence. The
officers heard voices and movement in the apartment and saw smoke under the door. The
officers announced they knew defendant was inside and urged him to open the door.
After a few minutes, defendant eventually opened the door and was in his
underwear. The officers noticed another person was inside the apartment. Officer Song
also noticed defendant smelled like alcohol. He told defendant to come outside, but
defendant did not comply so Officer Song placed his hand on defendant and pulled him
out of the apartment and onto the ground outside of the apartment door. Defendant
resisted while the officers placed him in handcuffs. He generally was uncooperative and
asked to put on shorts. Because there was someone else inside the apartment, the officers
3
A video recording from the officer’s body worn camera was played for the
jury. We summarize some facts from a transcript of the video recording.
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offered to retrieve the shorts for defendant. Defendant told the officers they were not
welcome in his house, called them vulgar names, and uttered obscenities.
R.P. arrived at the apartment and identified defendant as the driver of the
vehicle that hit T.K.’s vehicle. The officers then transported defendant to jail. At 10:37
a.m., defendant’s blood was tested twice at the police station and indicated blood alcohol
concentrations of 0.144 percent and 0.142 percent. Extrapolating back to the time of the
accident, defendant’s blood alcohol concentration would have been between 0.19 percent
to 0.20 percent.
At trial, T.K. testified she experienced pain so she visited a doctor the day
after the accident. She received treatment for her injuries and was still receiving
treatment at the time of trial.
Among other things, Officer Song testified he believed there was imminent
danger to life and property given the smoke coming from under defendant’s door. He
also testified he believed defendant was using stall tactics to lower his blood alcohol
content.
DISCUSSION
Defendant contends the evidence was insufficient to support his conviction
on counts 1 and 2. With respect to his conviction for obstructing a police officer (count
2), he emphasizes the police officers had to have been acting lawfully before he could be
convicted. He argues the police did not act lawfully because his warrantless arrest was
not justified by exigent circumstances. With respect to his conviction for hit and run with
injury (count 1), defendant claims the evidence was insufficient to establish he had
knowledge the accident caused injury to another person. Finally, defendant seeks
independent review of the court’s Pitchess ruling. For the reasons discussed infra, we
agree the court failed to conduct an adequate Pitchess review, but we reject defendant’s
remaining contentions.
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Substantial Evidence Supporting Defendant’s Conviction for Obstructing a Police Officer
A. Applicable Law and Standard of Review
As noted, ante, the jury convicted defendant of misdemeanor resisting and
obstructing an officer (§ 148, subd. (a)(1).) Section 148, subdivision (a)(1) states:
“Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the
discharge or attempt to discharge any duty of his or her office or employment” is guilty
of a misdemeanor. The elements of that crime are as follows: “‘“(1) the defendant
willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was
engaged in the performance of his or her duties, and (3) the defendant knew or reasonably
should have known that the other person was a peace officer engaged in the performance
of his or her duties.”’” (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.)
“Before a person can be convicted of [a violation of section 148, subdivision (a)(1),]
there must be proof beyond a reasonable doubt that the officer was acting lawfully at the
time the offense against him was committed.” (In re Joseph F. (2000) 85 Cal.App.4th
975, 982.) “‘Under California law, an officer is not lawfully performing [his or] her
duties when [he or] she detains an individual without reasonable suspicion or arrests an
individual without probable cause.’” (In re Chase C. (2015) 243 Cal.App.4th 107, 114,
italics omitted.)
The Fourth Amendment to the United States Constitution prohibits a police
officer from making a warrantless and nonconsensual entry into a person’s home to make
an arrest, and such an arrest is “presumptively unreasonable.” (Payton v. New York
(1980) 445 U.S. 573, 576, 586.) To make a lawful nonconsensual entry into a home for a
warrantless arrest, there must be both probable cause and exigent circumstances. (People
v. Wilkins (1993) 14 Cal.App.4th 761, 777; CALCRIM No. 2670.) “The term exigent
circumstances describes an emergency situation that requires swift action to prevent (1)
imminent danger to life or serious damage to property, or (2) the imminent escape of a
suspect or destruction of evidence.” (CALCRIM No. 2670, italics removed.)
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In addressing a claim of insufficient evidence, we “examine the whole
record in the light most favorable to the judgment to determine whether it discloses
substantial evidence — evidence that is reasonable, credible and of solid value — such
that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] The appellate court presumes in support of the judgment the existence of
every fact the trier could reasonably deduce from the evidence.” (People v. Kraft (2000)
23 Cal.4th 978, 1053.) “[I]t is the exclusive province of the trial judge or jury to
determine the credibility of a witness and the truth or falsity of the facts upon which a
determination depends. [Citation.] We resolve neither credibility issues nor evidentiary
conflicts; we look for substantial evidence.” (People v. Maury (2003) 30 Cal.4th 342,
403.) “A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon
no hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict.” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
B. Analysis
Here, neither party disputes the police arrested defendant at his home
without a warrant. Defendant also does not suggest the police lacked probable cause to
arrest him. Instead, he argues the police did not act lawfully because the warrantless
arrest was not justified by exigent circumstances. He emphasizes the officer’s testimony
that he saw smoke under the door was not a genuine exigent circumstance. The Attorney
General does not rely on the latter facts and instead argues exigent circumstances existed
because defendant could have escaped while the officers sought a warrant. The Attorney
General also argues exigent circumstances existed because defendant’s blood alcohol
content would have diminished as his body metabolized the alcohol while officers sought
a warrant. We agree the dissipation of blood alcohol evidence constituted an exigent
circumstance under the facts of this case.
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In People v. Thompson (2006) 38 Cal.4th 811 (Thompson), our Supreme
Court held a warrantless entry into the defendant’s home to arrest him for driving under
the influence was justified to prevent the imminent destruction of evidence. After a
female observed the defendant was intoxicated, she decided to follow his vehicle while
he drove recklessly, and she called the police. (Id. at p. 815.) The police eventually
found the defendant’s vehicle parked in front of his residence. (Id. at p. 816.) The
officers approached the house door, which was wide open, and rang the doorbell. A
female answered the door and indicated the defendant owned the vehicle outside. An
officer asked to speak with the defendant, but the female said he was sleeping. After the
officer asked if she could wake up the defendant, the female entered a bedroom and then
came back to tell the officers she could not wake up the defendant. She also refused to
let the officers inside. (Ibid.) An officer then heard people speaking inside and saw the
defendant leave the house and go into the backyard. When the defendant turned around,
the officer motioned for him to come to the door. The defendant reentered the house and
approached the officers while staggering and smelling of alcohol. An officer explained
they suspected the defendant of driving under the influence and wanted to perform some
tests, but the defendant did not cooperate. The officer then entered the house, placed his
hand on the defendant’s shoulder, and arrested the defendant. (Ibid.)
Based on the above facts, our Supreme Court agreed with the Attorney
General’s assertion that the “defendant’s blood-alcohol level would have diminished
while the police sought a warrant as the body metabolized the alcohol” and the
“defendant could have masked his blood-alcohol level while the police sought a warrant
by ingesting more alcohol.” (Thompson, supra, 38 Cal.4th at p. 825.) But the court
emphasized that in “holding . . . exigent circumstances justified the warrantless entry
here, we need not decide — and do not hold — that the police may enter a home without
a warrant to effect an arrest of a DUI suspect in every case.” (Id. at p. 827.) Instead, the
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court expressed a preference for case-by-case assessments based on a totality of the
circumstances. (Ibid.)
Here, as in Thompson, the police had reasonable suspicion defendant had
committed a crime. T.K. reported defendant’s vehicle was involved in a hit-and-run
accident, and the police found the vehicle with clear signs of damage in a 15 minute
parking zone. The hood of the vehicle also was warm suggesting it was recently driven,
and the driver’s side window was slightly open with the trunk unlatched. When
defendant answered the door after several minutes, he smelled of alcohol and was
uncooperative. Although the officers asked him to come outside, he refused. At trial,
Officer Song testified he believed defendant was being uncooperative as a delay tactic to
lower his blood alcohol content. He explained alcohol in someone’s system dissipates as
time passes. He also testified about stall tactics commonly used by suspects.
Defendant does not dispute the “‘delay necessary to procure a warrant . . .
may result in the destruction of valuable evidence,’” or that “‘blood and breath samples
taken to measure whether these substances were in the bloodstream when a triggering
event occurred must be obtained as soon as possible.’” (Thompson, supra, 38 Cal.4th at
p. 825.) Instead, defendant argues the jury was not presented with sufficient information
about how alcohol dissipates in the body. He emphasizes Officer Song was not an expert
witness on the issue. Contrary to defendant’s assertion, an expert witness testified
alcohol is eliminated from an average person’s body at a regular rate. The expert further
indicated he could determine someone’s blood alcohol content at an earlier time because
“blood alcohol concentration is going to decline every hour.” We accordingly are not
persuaded by defendant’s argument. Defendant also claims spoliation of blood alcohol
evidence could not have created an exigent circumstance because Officer Song waited for
backup when he arrived at the apartment. But the time it took for backup to arrive was
surely not as long as it would take to obtain a warrant. In any event, Officer Song waited
for backup before knocking on defendant’s door. We do not see how this is relevant to
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the spoliation risk that existed if the officers tried to obtain a warrant after defendant had
spoken to them and refused to cooperate. Indeed, as the Attorney General notes,
defendant could have ingested more alcohol to mask his blood alcohol level while they
waited for a warrant. He alternatively could have eaten food, which also would have
affected his blood alcohol level.
Based on a totality of the circumstances, there was substantial evidence the
police acted lawfully in the performance of their duties when they arrested defendant due
to exigent circumstances. (Lange v. California (2021) ___U.S.___ [141 S.Ct. 2011,
2024] [holding that the “flight of a suspected misdemeanant does not always justify a
warrantless entry into a home” and that an “officer must consider all the circumstances in
a pursuit case to determine whether there is a law enforcement emergency”].)
Substantial Evidence Supporting Defendant’s Conviction for Hit and Run with Injury
Defendant next contends his hit-and-run conviction must be reversed
because there was insufficient evidence he had actual or constructive knowledge the
accident caused injury to another person. Viewing the evidence in the light most
favorable to the judgment, we are not persuaded by defendant’s argument.
Vehicle Code section 20001, subdivision (a) provides that “[t]he driver of a
vehicle involved in an accident resulting in injury to a person, other than himself or
herself, or in the death of a person shall immediately stop the vehicle at the scene of the
accident and shall fulfill the requirements of Sections 20003 and 20004.” In People v.
Holford (1965) 63 Cal.2d 74 (Holford), our Supreme Court added the mens rea
requirement “that defendant [must] know that the accident resulted in injury to a person
or know that the accident was of such a nature that one would reasonably anticipate that it
resulted in injury to a person.” (Id. at p. 83.)
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“The question of knowledge [is] a factual question for the determination of
the” trier of fact.” (People v. Wolf (1978) 78 Cal.App.3d 735, 740.) The driver’s
constructive knowledge of injury to the victim is sufficient because a “driver who leaves
the scene of the accident seldom possesses actual knowledge of injury; by leaving the
scene he forecloses any opportunity to acquire such actual knowledge.” (Holford, supra,
63 Cal.2d at p. 80.) To determine whether the evidence supports a finding of knowledge,
“a number of decisions look to the actual circumstances of the accident.” (People v.
Harbert (2009) 170 Cal.App.4th 42, 55.) “A pedestrian struck with sufficient force that
he or she reaches the hood or windshield is treated as virtually unignorable. [Citations.]
The extent of damage to the defendant’s vehicle is routinely treated as particularly
probative. [Citations.] A collision with the speed and force to cause death invariably
draws comment.” (Id. at p. 56.) The jury may also consider “defendant’s conduct after
his [vehicle] collided with the victim.” (Ibid.)
Here, substantial evidence supports a finding of constructive knowledge.
The accident “was of such a nature that one would reasonably anticipate that it resulted in
injury to a person.” (Holford, supra, 63 Cal.2d at p. 83.) When defendant hit T.K.’s
vehicle, it damaged her right rear corner panel, and there was fresh collision damage on
the left portion of defendant’s vehicle. It appears the jury saw photographs depicting the
damage to both vehicles. Those photographs showed significant damage to the right side
of T.K.’s vehicle, which was smashed and dented in the back and above the right rear
tire. The photographs also showed the left headlamp on defendant’s vehicle was
damaged with cracks in the surrounding area. T.K. further testified she felt impact from
the collision, and R.P. testified he heard the accident. Finally, the accident occurred
when it was daylight around 7:00 a.m. so the area was sufficiently illuminated to allow
defendant to have determined he hit another vehicle. (People v. Roche (1942) 49
Cal.App.2d 459, 461 [considering the time of the accident in the morning as a relevant
factor].)
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Defendant’s post-accident conduct also is relevant. He fled the scene and
ignored R.P. when he knocked on the door of his vehicle. His vehicle was later found in
a 15-minute parking zone near his home with the driver’s side window open and the
trunk unlatched, which caused an officer to believe defendant was in a hurry to flee. A
jury could have relied on this evidence, along with the nature of the accident, to conclude
defendant had knowledge of the injury causing accident.
People v. Carter (1966) 243 Cal.App.2d 239, which defendant cites, is
distinguishable. In Carter, the court found no basis to impute constructive knowledge of
injury where the defendant’s vehicle had only “slightly damaged” the other vehicle’s
bumper and the defendant stopped to ask if anyone was hurt. (Id. at pp. 240-241.) After
the victim said he did not think there were any injuries, the defendant left the scene. (Id.
at pp. 240-241.) Here, defendant never stopped or tried to determine whether T.K. was
hurt so he had no grounds to conclude T.K. was unharmed after the accident. The nature
of the accident in the instant case also does not appear to be as minor as the accident in
Carter.
Ignoring the above evidence, defendant maintains he had no reason to think
anyone was injured. He notes T.K. initially believed she had hit something before
realizing another vehicle had hit her. He adds that T.K. and R.P. followed him after the
accident, which suggested T.K.’s car was operable, and she was not injured. Finally, he
claims there was no evidence regarding a high rate of speed or that T.K.’s vehicle
“veered or was thrown [off] course.” But the jury heard all of the evidence and rejected
defendant’s theory. Defendant’s arguments amount to a request that we reweigh the
evidence and substitute our judgment for that of the jury. We cannot do this as we do not
resolve evidentiary conflicts or credibility issues. (People v. Maury, supra, 30 Cal.4th at
p. 403.) Defendant also tries to minimize T.K.’s injuries by noting she refused the need
for paramedics when she called the police. But Vehicle Code section 20001 does not
require any particular degree of injury. Regardless, substantial evidence established she
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did suffer injuries and received treatment after the accident. In short, defendant’s
conviction on count 1 is supported by substantial evidence.
The Pitchess Motion
Before trial, defendant moved to discover the personnel records of Officers
Song and Sepulveda. (Pitchess, supra, 11 Cal.3d at p. 531.) Defendant sought records
from the police department’s personnel files concerning, among other things, “[l]ack of
credibility,” “falsifying police reports,” “[p]rior acts involving moral turpitude,” and
information pursuant to Brady v. Maryland (1963) 373 U.S. 83. The court found good
cause to review the officers’ files (People v. Samuels (2005) 36 Cal.4th 96, 109),
conducted an in-camera review (§ 1045, subd. (b)), and found two discoverable items that
were turned over to defendant’s counsel (see People v. Mooc (2001) 26 Cal.4th 1216,
1226-1232 (Mooc)).
On appeal, defendant moved to augment the appellate record with the
confidential records reviewed by the court at the in-camera hearing. We granted the
motion and directed the clerk of the superior court to transmit a sealed supplemental
clerk’s transcript including the records considered by the court during the in-camera
hearing. Alternatively, if the court did not retain a copy of the files it reviewed during the
in-camera hearing, we ordered the court to conduct a new hearing to augment the record
on appeal with the records the trial court previously considered at the first in-camera
hearing. (Mooc, supra, 26 Cal.4th at p. 1231.) At the conclusion of the hearing, we
ordered the court to certify the records it reviewed were the same records it considered at
the first in-camera hearing. If the court certified the records were the same, we ordered
the court to transmit a sealed supplemental clerk’s transcript including a copy of the
records considered at the first in-camera hearing.
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In response to our order, the court held an in-camera hearing and certified
the records it reviewed were the same records it considered at the first in-camera hearing.
The clerk of the superior court then transmitted a sealed supplemental clerk’s transcript
including the records considered by the court during the in-camera hearing. Defendant
requests we review the sealed transcript of the in-camera hearing and the documents
reviewed by the court to determine if any documents were incorrectly withheld. The
Attorney General agrees we should review the sealed materials.
We have reviewed the sealed transcript of the in-camera hearing and the
records considered by the court during the hearing. The court placed the custodian of
records for the Fullerton Police Department under oath in the presence of counsel for the
Fullerton Police Department. The custodian generally described where an officer’s
personnel file are kept, including within the internal affairs office. The custodian then
provided the records falling within the parameters of the request. The court examined the
files with the custodian on the record, identified the documents it reviewed, and found
two discoverable items that were turned over to defendant’s counsel. With respect to the
documents the court reviewed, the court did not err by finding there were only two
discoverable items. But the court did not conduct a proper Pitchess review. Although
the court reviewed the documents provided by the custodian of records, it did not
question the custodian about what records had been reviewed to reach the conclusion that
no other documents in the personnel file or internal affairs investigation file were
responsive. “[T]he locus of decisionmaking is to be the trial court, not the prosecution or
the custodian of records. The custodian should be prepared to state in chambers and for
the record what other documents (or category of documents) not presented to the court
were included in the complete personnel record, and why those were deemed irrelevant or
otherwise nonresponsive to the defendant's Pitchess motion.” (Mooc, supra, 26 Cal.4th
at p. 1229.)
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The instant case is like People v. Guevara (2007) 148 Cal.App.4th 62(Guevara). In Guevara, the custodian of records testified that none of the officers’
personnel files contained information responsive to the Pitchess motion. (Guevara, at p.
68.) The trial court did not review any documents from the personnel files or a sealed
document listing what the custodian of records had reviewed. (Ibid.) The Court of
Appeal reversed the judgment and remanded for a new Pitchess hearing. (Guevara, at p.
64.) The court explained the custodian of records “must establish on the record what
documents or category of documents were included in the complete personnel file” when
he or she does not produce the entire file for the court’s review. (Id. at p. 69.) The court
further held “if it is not readily apparent from the nature of the documents that they are
nonresponsive or irrelevant to the discovery request, the custodian must explain his or her
decision to withhold them.” (Ibid.)
Here, it is unclear which documents were withheld by the custodian of
records and why. We accordingly conditionally reverse the judgment and remand for the
court to conduct a new Pitchess hearing where it must personally review the records or
obtain a list of their contents and confirm the conclusion of the custodian of records. If
the court finds there was discoverable evidence, it must then determine if defendant was
prejudiced from the denial of discovery.
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DISPOSITION
The judgment is conditionally reversed, and the matter is remanded to the
court with directions to hold a new Pitchess hearing regarding Officer Song and Officer
Sepulveda’s records. If the court finds there is discoverable information, it shall
determine whether defendant was prejudiced from the denial of discovery. If the court
confirms the lack of discoverable evidence or finds that defendant was not prejudiced
from the denial of discovery, the judgment shall be reinstated. In all other respects, the
judgment is affirmed.
SANCHEZ, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
MOORE, J.
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