People v. Player CA3 ( 2024 )

Filed 10/18/24 P. v. Player CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Shasta)
----
THE PEOPLE, C095341
Plaintiff and Respondent, (Super. Ct. No. 21F3425)
v.
ADRIAN GERARDO PLAYER,
Defendant and Appellant.
Defendant Adrian Gerardo Player appeals from his convictions of resisting an
executive officer with force, battery upon a peace officer, and willful harm to a police
dog. (Pen. Code, §§ 69; 243, subd. (b); 600, subd. (a) [statutory section citations that
follow are found in the Penal Code unless otherwise stated].) He contends the prosecutor
committed prejudicial misconduct by not admonishing witnesses not to make statements
prohibited by the trial court, insinuating in questions that defendant was under the
influence of methamphetamine, and by making provocative and untrue statements in
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closing argument. Defendant further contends the trial court erred by denying his
motions for a mistrial that were based on the misconduct, admitting unduly prejudicial
evidence, committing cumulative error, and by sentencing him to an upper prison term in
violation of the requirements of section 1170. He also asks us to determine whether the
trial court abused its discretion when it determined not to disclose any information
contained in the personnel records of the peace officers involved in his arrest.
Except to remand for resentencing, we affirm the judgment.
FACTS AND HISTORY OF THE PROCEEDINGS
A. Prosecution
On the evening of May 10, 2021, Vanessa O. was riding her bike on her Redding
street when she saw an unfamiliar man. The man had two backpacks. Passing the man,
Vanessa saw him use a phone to take pictures of one of her neighbor’s houses. Vanessa
knew the house the man was photographing was vacant.
Returning from her bike ride, Vanessa saw the same man on the property of a
different house that was under construction. After “furtively” looking around, the man
went onto the property and disappeared. Concerned that the man might stay in the house
for the night, Vanessa called her neighbor, Warden Aaron Galwey, whom she knew was in
law enforcement, and asked him to check out the situation.
Warden Galwey is a peace officer with the California Department of Fish and
Wildlife. Vanessa described the unknown man to Galwey as having long hair, tattoos,
and a darker complexion, possibly Hispanic or Hawaiian. Galwey told Vanessa he was
on his way home, and he would see if he saw a man matching that description on his way.
Warden Galwey was not on duty at the time. He was wearing hiking pants, a t-
shirt, and flip flops. He was not armed. He and his son were driving an off-road vehicle
similar to a golf cart when he saw an individual matching Vanessa’s description standing
on the front porch of the house under construction and looking in the windows around the
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front door. Galwey called the police and described the situation. He believed the fact the
man was looking in windows, instead of just walking down the street, warranted law
enforcement contact. Galwey and his son stopped their vehicle down the street from the
house, and he walked back to contact the individual, whom Galwey identified at trial as
defendant.
Warden Galwey asked defendant if he could help him find something and if he
knew where he was going. Defendant immediately stated, “ ‘Hey, this is a really safe
neighborhood. Everyone keeps wanting to talk to me. I want to live here.’ ” Galwey
replied, “ ‘Well, it’s nice we just don’t like when people are looking in windows and they
are on private property.’ ” Galwey asked if he could help defendant get somewhere and
stated, “ ‘Hey, you need to leave if you’re in people’s yards. Like you can’t be behind
their fences you’ve got to go.’ ”
While Warden Galwey had been talking with defendant, the owner of the house
under construction, Joan M., was driving down the street. It was almost 8 o’clock. She
saw someone milling around in her house’s yard. He was wearing a tank top and shorts,
and he had a backpack and long dark hair. Joan stopped her car and asked the man what
he was doing. The man refused to leave, so Joan made a U-turn and parked her car in
front of a neighbor’s house with her lights shining on the man. She then saw another
person talking with the man. The second person walked over to her car and identified
himself as Warden Galwey. Galwey informed Joan how he was involved and that the
police were on their way.
Redding Police Officer Kyle Lovelady arrived at the scene in his marked police
car and in uniform a few minutes before 9:00 p.m. As Officer Lovelady arrived,
defendant began to walk away towards the opposite side of the roadway. He was
carrying a backpack and a duffle bag. After Lovelady got out of his vehicle about 50 feet
away from defendant, defendant turned his back on him and put his hand in his pocket
while he was walking off. Warden Galwey told defendant not to walk with his hands in
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his pockets and to take his hands out of his pockets. This statement alerted Lovelady that
defendant potentially had weapons in his pockets.
Officer Lovelady identified himself as Redding Police. Defendant continued to
walk away until Lovelady called him back towards his direction to be searched.
Lovelady knew that defendant was subject to warrantless searches. He told defendant to
drop his bags, turn around, and interlace his fingers behind his head. Defendant placed
both bags on the ground. He started stepping backward and asking why. Lovelady told
him he was going to conduct a search of his person, and if there was nothing illegal on
him, he would most likely be free to leave.
Defendant said that Officer Lovelady was not going to touch him. He took a step
back and began to pick up one of his bags. Lovelady again told defendant to place the
bag on the ground, turn around, and interlace his fingers behind his head. Lovelady said
it was an order. Defendant said no. Lovelady repeated the command, and defendant still
did not comply.
At this point, Officer Lovelady told defendant he was under arrest. Lovelady also
advised his dispatch, and through dispatch his backup officer, that defendant was not
complying with orders. Lovelady again repeated his order to defendant to turn around
and interlace his fingers behind his head. That was how he was going to arrest defendant
if he complied. Defendant did not comply.
Officer Lovelady pulled out his pepper spray. Lovelady was designated an expert
in the use of force. He explained there were multiple levels of force, and pepper spray
was a very low use of force because it caused only temporary discomfort. He would use
it when someone was not complying with his orders. It was a higher level of force than
verbal commands or just trying to talk to someone. Pepper spray was his next step of
force to effect the arrest and take defendant into custody without “going hands-on” and
risk hurting himself.
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Officer Lovelady shook the pepper spray in front of defendant to display his intent
to use it. Defendant placed his hands in front of his face as if to block the spray from
hitting him. Lovelady moved to the side to get a direct path, and he sprayed the pepper
spray in a one-to-two second burst towards defendant’s face. The spray hit defendant’s
face. His eyes shut and he began yelling. Lovelady informed dispatch he had deployed
the spray.
After spraying defendant, Officer Lovelady ordered him to get on the ground and
lay flat on his stomach. Defendant refused, and he continued standing and rubbing his
eyes. He began opening his eyes, and Lovelady sprayed him with the pepper spray again.
Defendant’s eyes closed, he yelled, and he eventually went down to his knees. Lovelady
told him he was under arrest multiple times. Defendant screamed “ ‘Don’t kill me,’ ” and
“ ‘Don’t shoot me.’ ” He said he did not do anything wrong.
Officer Lovelady told defendant all he had to do was get on the ground and that he
was under arrest. But defendant stayed on his knees. Lovelady sprayed him a third time
in the face, this time for three-to-four seconds, because defendant still was not complying
and was rubbing his eyes. The spray was not resulting in gaining defendant’s compliance
as it normally did with the average person.
Believing defendant was a danger to him, Officer Lovelady decided “to go hands-
on.” He walked around defendant, who was still kneeling, and while telling him to get on
the ground, pushed him using both of his hands on defendant’s back. Defendant fell
forward and caught himself with his hands. He pushed himself back up onto his hands
and knees and locked his elbows.
At that point, Warden Galwey grabbed hold of defendant’s right arm, and Officer
Lovelady tried to get defendant’s left arm behind his back to effect the arrest. The men
were unable to physically force defendant’s arms behind his back. Lovelady explained
that a person can be high on adrenaline or even drugs and can overcome the force that
two grown men may use against that person.
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Defendant clenched his left fist and started swinging his arm at Officer Lovelady.
His elbow and his arm hit Lovelady while he was swinging it. Defendant went from
kneeling to sitting and started kicking and punching at Lovelady, striking the officer two
to three times and kicking him four to five times. Lovelady drew his straight stick baton
and hit whichever leg or arm defendant used to hit him. Officers are trained to strike
extremities that are actually kicking or punching them because those extremities are not
near body areas they do not want to strike.
Hitting defendant with the baton, Officer Lovelady used both of his hands and
swung the baton as hard as he could. It did not seem to have any effect on defendant.
This scared Lovelady because a normal person getting hit that hard with a baton would
comply. He had struck people before, “and it was nothing like this.” He struck defendant
approximately once in the hand, two to three times in the forearm, and two to three times
in the bicep. But defendant continued to yell and resist; the baton strikes did not affect
his ability to fight. Warden Galwey was “shocked” by defendant’s lack of response to the
strikes.
Officer Lovelady decided to use his taser. He removed it from his belt, turned it
on, and yelled, “ ‘Taser, taser.’ ” He shot the taser to defendant’s chest. He explained to
the jury that the taser has a battery cartridge with a regular trigger and two pieces of
metal on its end that could be used as a stun gun. A cartridge attaches at the end that
shoots two barbed probes attached to thin copper wires. When both probes attach to skin,
the taser sends an electrical charge to the body which contracts the muscles. More
muscle mass is constricted the farther away from the victim the taser is shot and the
greater the distance between the barbs. Lovelady was fairly close to defendant when he
fired the taser, and the probes were separated by only a foot. Nonetheless, he thought it
would have been effective.
But defendant immediately began pulling out the probes, rendering the taser
ineffective. Officer Lovelady thought one probe was still attached to defendant, who was
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lying on his right side by that time, so he placed the taser on defendant’s left thigh in dry
stun mode to get a second connection. That seemed to work, but defendant reached down
and grabbed the taser. Lovelady wrestled the taser from defendant’s hands, and
defendant resumed kicking and punching.
Officer Lovelady tried to grab one of defendant’s arms and force him back down
to the ground. Lovelady ended up on top of defendant, who was on his back. Defendant
grabbed Lovelady’s groin. Lovelady punched him in the face. Lovelady had radioed
several times for assistance, and Redding Police Officer Travis Williams had arrived with
his German shepherd K9. Lovelady told Williams to send in the dog.
Officer Williams saw that defendant was violently resisting and was swinging at
Officer Lovelady. He told defendant to get on the ground or he would be bit. Williams
released the dog, and the dog bit defendant on his lower right leg. Defendant sat up,
grabbed the dog by the head, and began punching the dog with both fists. Lovelady
struck defendant in the arms, and Williams tried to grab one of his arms. Defendant
grabbed Williams’s pant leg.
Williams stepped back. He pulled his taser off his belt, told defendant he was
going to tase him, and shot the two probes into defendant’s upper chest. It had no effect
on defendant, who tried reaching for the probes to pull them out. Williams tried to touch
defendant with the taser, but defendant kicked toward Williams and tried to grab the taser
out of his hands. Williams pulled the taser out of defendant’s hands and put it back in his
belt. He deployed his baton and struck defendant in his arms between five and seven
times. Williams yelled at defendant that if he would just stop resisting, this would all
stop. Officer Lovelady also struck defendant with his baton, all to no effect.
Defendant attempted to put his hands inside a spandex brace that was wrapped
around his belly, and he rolled towards his left side to try to get up. Facing defendant’s
back, Officer Williams struck defendant in the right shoulder approximately five times
with his baton to keep him on the ground, again without effect.
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With Warden Galwey’s assistance, the officers grabbed defendant and “dogpile[d]”
him onto the ground on his stomach. The K9 was still biting defendant’s leg. At some
point, Galwey struck defendant with his knees twice and pulled defendant’s hair to get
him to the ground. Galwey pulled defendant’s left hand behind his back and yelled at
Officer Lovelady to get handcuffs. Lovelady was able to cuff defendant’s left wrist.
Officer Williams grabbed defendant’s right arm and, using almost his entire body weight,
pulled the arm out straight as defendant kept grabbing Williams’s hand and pulling his
arms. Lovelady laid on top of defendant with all his weight to keep him on the ground.
Lovelady moved his body forward to where his head was above defendant’s, and
Williams was able to place the handcuff on defendant’s right wrist. Although there were
some lulls, defendant had screamed throughout the entire altercation.
Defendant continued to roll side-to-side and kick. Officer Lovelady double locked
the handcuffs. Officer Williams released the dog from defendant and put him back inside
the patrol car. Other officers arrived and put defendant in leg restraints. Defendant was
searched, and no weapons were found. Inside his bags, officers found a small amount of
marijuana, which was not of interest, and a clear glass pipe of the type commonly used to
smoke methamphetamine.
Defendant suffered abrasions on his face, bruising and swelling over his
extremities and face, several dog bite lacerations, a broken bone in his left hand, and
other injuries consistent with being struck by a baton. He wore a “bellyband” made of
neoprene fabric about one foot wide wrapped around his abdomen and connected by
Velcro. Neoprene fabric could prevent taser probes from working effectively.
Officer Williams requested an ambulance for defendant and to have chemical
restraints ready. But Williams learned the ambulance would not arrive quickly, so the
officers placed defendant in the back of a larger patrol vehicle and transported him to the
hospital. Williams was concerned that defendant might have been experiencing “excited
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delirium,” a condition that may occur when a subject has used stimulants or other types
of narcotics and that can cause an extremely elevated heart rate and temperature.
At the hospital, defendant remained combative. He attempted to assault nurses
and other medical staff. As the staff attempted to put him in soft restraints, he swung at
one of the nurses. He continually tried to resist them and seemed incoherent. Ultimately,
defendant was cleared medically and taken to jail.
Officer Lovelady suffered abrasions on his shins and knees. Officer Williams
suffered pain in both his wrists and a scratch on his face. Warden Galwey suffered
bloodied hands, knees, and feet and scratches on his arms. It took “every bit of energy
[Galwey] had left” to help cuff defendant. In his 17 years of law enforcement, Galwey
had never seen an individual continue to fight the way defendant fought. During the
encounter, Galwey did not identify himself as a law enforcement officer.
B. Defense
Defendant’s arrest occurred on the perimeter of property owned by Michelle P.
That night, Michelle got out of bed when she heard people yelling. She went outside to
her side yard and saw Redding police officers beating up a person on the ground with
batons, tasers, and mace as they tried to arrest him. The officers were screaming at the
person to turn over and get on his stomach. Michelle said she “kind of went into shock”
at the sight, as she had never seen anyone get beat up like that before.
When Michelle saw an officer arrive with a dog, she went inside and got her
phone. She wanted to take a video because she was not sure if someone was going “to
end up dead” on her property. While the officers were beating the individual, Michelle
heard the person say, “ ‘Don’t shoot me, don’t shoot me, don’t shoot me.’ ” She thought
the person was “screaming the whole time” before she got her phone. She used her
phone to record a video of the altercation, and she gave the video to a Redding police
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officer that night along with a statement. She never watched the video again, as she
wanted to erase it from her mind. The video was played to the jury.
Michelle told the officer the beating was “pretty bad” and that she was scared “the
guy was going to get killed.” She had never seen someone take a beating “like that and
still be alive.” She did not see the officers use any de-escalation tactics. She told the
officer she thought the man on the ground was going to be murdered and killed by the
police.
Michelle did not know and did not remember whether the man on the ground was
hitting the officers during the beating. She also did not know if he was kicking or
assaulting the officers. It was dark and she could not see. She also did not see what led
up to the individual screaming.
Zalina Galashty, Shasta County senior deputy public defender, represented
defendant for his arraignment on May 13, 2021, three days after the incident. Defendant
had extensive injuries on his face and entire body. Galashty took photographs of
defendant’s injuries, which were entered into evidence.
C. Judgment
A jury found defendant guilty of two counts of felony resisting an officer with
force or violence, two counts of misdemeanor battery upon a peace officer, and
misdemeanor willful harm to a police dog. (§§ 69 [counts 1 and 2]; 243, subd. (b)
[counts 3 and 4]; 600, subd. (a) [count 5].) Implicit in the jury’s verdict was a finding
that the officers did not use unreasonable or excessive force in detaining and arresting
defendant. (CALCRIM Nos. 2652, 2656, 2670.) The trial court found true allegations
that defendant had twice been previously convicted of serious or violent felonies for
purposes of the Three Strikes law. (§ 1170.12.)
The trial court denied defendant’s motion to strike a strike prior. It sentenced
defendant to an aggregate prison term of seven years, four months: the upper term of
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three years on count 1, doubled to six years under Three Strikes; plus one-third the
midterm of eight months on count 2, doubled to one year, four months. The court
sentenced defendant to one year each for counts 3 and 4, and it stayed imposition of those
sentences under section 654. It also sentenced defendant on count 5 to 180 days to be
served concurrently.
DISCUSSION
I
Prosecutorial Misconduct
Under the federal Constitution, conduct by the prosecutor constitutes prosecutorial
misconduct if it “ ‘so infected the trial with unfairness as to make the resulting conviction
a denial of due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168, 181.) Under
California law, misconduct occurs “when a prosecutor uses ‘ “ ‘ “deceptive or
reprehensible methods to attempt to persuade either the court or the jury.” ’ ” ’ ” (People
v. Wallace (2008) 44 Cal.4th 1032, 1070-1071.)
Defendant contends the prosecutor committed misconduct on numerous occasions.
Defendant asserts the prosecutor did so by (1) twice failing to admonish witnesses not to
make specific statements which the trial court had prohibited in earlier in limine rulings;
(2) asking questions that insinuated without substantiation that defendant was under the
influence of methamphetamine; and (3) making statements in closing argument that were
unduly prejudicial and mischaracterized Michelle’s testimony based on information not
admitted into evidence. We address each assertion of misconduct.
A. Not admonishing witnesses
One form of prosecutorial misconduct is eliciting or attempting to elicit
inadmissible evidence in violation of a court order. (People v. Crew (2003) 31 Cal.4th
822, 839.) Defendant contends the prosecutor committed prejudicial misconduct by not
11
admonishing his witnesses not to make specific statements that the trial court had ruled
were inadmissible during in limine rulings and by eliciting the prohibited statements from
those witnesses.
1. Background
Defense counsel filed an in limine motion to exclude any evidence or testimony
concerning defendant’s parole status. The trial court granted the motion under Evidence
Code section 352 and in light of defendant’s stipulation that the attempted search was not
unlawful and that he was subject to warrantless search. The stipulation read to the jury
stated, “ ‘The parties stipulate that Officer Lovelady could conduct a search of
[defendant] and/or his property without a warrant and that such a search would be within
the lawful performance of the officer’s duties. The officer could detain [defendant] for
the purposes of conducting the search.’ ”
In the in limine motion, defense counsel also sought to preclude Redding Police
Officer Austin Lobsinger, one of the officers that responded to the location of the arrest,
from testifying that as he monitored the radio while responding, he heard multiple “mic
keys where i[t] sounded like Officer Lovelady was in a fight for his life.” The trial court
granted this motion.
During Officer Williams’ testimony, the following colloquy occurred:
“Q [The prosecutor]: Did you hear anything as you were approaching over the
radio that caused you concern?
“Defense counsel]: Objection, calls for hearsay.
“THE COURT: Overruled being offered for the effect on the listener.
“A [Officer Williams]: Yes.
“Q: What was that?
“A: I heard Officer Lovelady advise that he had pepper sprayed the subject.
“Q: And why was that a concern?
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“A: Because oftentimes the use of pepper spray on a resisting subject will cause
almost immediate compliance.
“Q: Did anything else you heard over the radio after that cause you concern?
“A: I don’t know if it was before or after that, but I recall Officer Lovelady
advising that the subject had advised that he was on parole.”
Defense counsel objected, and the court admonished the jury, “Jurors, I am going
to strike from the record the last question and answer given in this matter. And I’m going
to instruct you since I’m striking it for the record to disregard it. You may not consider
that question or answer for any reason whatsoever.” The court then excused the jurors for
a recess.
Defense counsel moved for a mistrial. She argued the prosecutor had been
ordered to admonish his witnesses not to mention defendant’s parole status. Yet the
witness had disclosed the parole status, which was prejudicial, and was grounds for a
mistrial.
Replying, the prosecutor attempted to focus the discussion on whether a jury
instruction would be sufficient. Defense counsel asked the prosecutor whether he had
admonished the witness not to talk about defendant’s parole status. The prosecutor stated
he believed he had but was not certain. The court brought Officer Williams into the
courtroom, and Williams stated he had not been instructed that evidence of defendant’s
parole status was not to be presented in front of the jury.
After reviewing authorities on the matter, the trial court denied the motion for
mistrial. It stated it always presumes jurors will follow its instructions. It also relied on
the fact there had been no pattern of egregious conduct by the prosecutor. The prosecutor
erred by not admonishing the witness, “and although the Court is not happy about that
error, especially in light of the fact that the Court very clearly indicated to both counsel to
advise their witnesses of the Court’s rulings and motion in limine, I don’t find that it was
intentionally done or that there was any intentional misconduct on the part of the
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prosecution. [¶] The Court notes that this was a single, brief remark that was
volunteered by the witness. I don’t believe the prosecutor led him into volunteering that
remark . . . .” The court stated it had immediately addressed the misconduct by striking
the statement and admonishing the jury to disregard it.
The next day at trial, Officer Lobsinger testified he had responded to a call that
Officer Lovelady was involved in a physical altercation with a subject. The dialogue
continued:
“Q [The prosecutor]: As you were responding were you monitoring the radio?
“A: Yes, I was.
“Q: Did you hear anything in relation to this call?
“A: Yes. I heard multiple mic keys and yelling.
“Q: What is a mic key?
“A: So we typically carry a mic on us, a radio, and when it starts clicking either
we’re in a physical altercation status most likely from my experience – from what I’ve
experienced personally. So you fight with somebody and the mic accidentally clicked
and that just – it sounds bad because you hear yelling in the background it sounds like
somebody is fighting for their life.”
Defense counsel objected. The court sustained the objection, struck Officer
Lobsinger’s last statement, and admonished the jurors to disregard it. It excused the
jurors, and then it asked Lobsinger whether anyone had instructed him of the court’s
ruling that his opinion that Officer Lovelady was in a fight of his life was excluded from
testimony. Lobsinger replied, “I don’t exactly recall that part, but I know I was not
supposed to talk about other stuff which I did not bring up that was in my report. I don’t
recall that part though.”
Defense counsel moved for a mistrial. She argued this was the second time the
prosecutor had elicited information in violation of a court order. It was now a dangerous
pattern, and the prosecutor was being allowed to “get into stuff” that the court had
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excluded. She asserted that at this point, the jury was poisoned, and striking the
statement and giving another instruction was not enough.
The prosecutor explained he had told Officer Lobsinger “not to communicate
opinions that he formed about what he was hearing when he was asked questions about
what he was hearing over the radio without getting the Judge’s approval.” The prosecutor
intended and did his best to convey the court’s order to Lobsinger and to be broader than
the order. The prosecutor also argued that Lobsinger’s statement did not violate the
court’s order. The court’s order prohibited Lobsinger from testifying he thought Officer
Lovelady was in a fight for his life; Lobsinger testified about other experiences he had
had from the past, not specifically what he thought about Lovelady at that time. The
prosecutor argued a jury instruction was sufficient.
The trial court denied the motion for mistrial. Although it was not pleased its
orders had been violated a second time, the court found that Officer Lobsinger’s
statement did not result in a prejudicial miscarriage of justice that could not be cured by
an admonition and striking the testimony. The court stated the in limine ruling
prohibiting Lobsinger’s statement had been based on an inadequate foundation, not that
the opinion was unduly prejudicial under Evidence Code section 352. The court
reasoned, “[I]n light of the evidence that has come into this case, you’ve had two or three
law enforcement officers who have testified that they were in such an altercation that they
believed deadly force was going to be necessary. The Defense, through their opening
statement, has indicated that [Michelle] is going to testify that she thought the Defendant
was going to be murdered. And so in light of that testimony, that’s going to come in in
this case. I don’t find that Officer Lobsinger’s brief statement is prejudicial – is unduly
prejudicial [and] a miscarriage of justice.”
The court informed the attorneys it did not take violations of its orders lightly. It
admonished the attorneys that if there were any further violations of its orders, the court
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would again hear a motion for mistrial and also consider issuing an order to show cause
for contempt because there had already been two violations of its orders.
2. Analysis
The prosecutor committed misconduct by eliciting Officer Williams’s testimony
that defendant was on parole and Officer Lobsinger’s statement that it sounded like
somebody was fighting for their life. In violation of the trial court’s order, the prosecutor
did not admonish his witnesses not to make those statements. As a result, the jury heard
evidence the trial court had precluded.
We will defer our analysis of prejudice until after we review defendant’s other
claims of misconduct.
B. Insinuating defendant was under the influence of methamphetamine
A prosecutor “may not examine a witness solely to imply or insinuate the truth of
the facts about which questions are posed.” (People v. Visciotti (1992) 2 Cal.4th 1, 52.)
A prosecutor may not interrogate witnesses “ ‘solely “for the purpose of getting before
the jury the facts inferred therein, together with the insinuations and suggestions they
inevitably contained, rather than for the answers which might be given.” ’ ” (People v.
Navarro (2021) 12 Cal.5th 285, 336.)
Defendant contends the prosecutor committed prejudicial misconduct by asking
witnesses questions that insinuated defendant was under the influence of
methamphetamine during the altercation. He argues the prosecutor lacked a good faith
belief that defendant was actually under the influence of methamphetamine.
1. Background
At the scene of the eventual arrest, Officer Lovelady directed Redding Police
Officer Ryan Frank to search defendant’s property. Inside defendant’s duffel bag, Officer
Frank found what appeared to him to be a clean glass “methamphetamine pipe.” Officer
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Lovelady wrote in his report that the pipe was clean and new. He did not believe the pipe
had been used to smoke methamphetamine because the pipe had no residue in it.
In an in limine motion, defense counsel sought to exclude as unduly prejudicial
Officers Lovelady and Frank from testifying that they found a clean glass pipe that was
used to ingest methamphetamine. The trial court asked the prosecutor whether the People
were contending defendant was under the influence at the time of the altercation. The
prosecutor replied, “Yeah, he seems not [to] be feeling a lot of pain when he’s resisting
the officers – . . . repeatedly receiving baton strikes. Goes to the People’s burden to show
that they were using an appropriate level of force.” The prosecutor also argued that
possessing the pipe could explain why defendant, who was on parole, did not want to be
searched.
The trial court denied defense counsel’s in limine motion on the assumption a
proper foundation could be made for introducing the evidence. The court stated, “So
assuming that an adequate foundation is laid that the officers located this pipe and that
they have training and experience that led them to believe it is typically used for
methamphetamine, I’m assuming we’re going to hear from officers – and the reason I
find that this is probative is I’m assuming we’re going to hear from officers that it
appeared to them that the Defendant was under the influence based upon his actions. [¶]
And so the Court would find it relevant for those purposes as well as why the Defendant
appeared to be avoiding the search.”
Defense counsel by in limine motion also sought to preclude Officer Williams
from testifying about “excited delirium.” In his police report, Williams stated, “If
[defendant] was suffering from something such as excited delirium, it was crucial he be
given . . . to the next level of medical care for treatment.” Defense counsel sought to
exclude that statement. She argued law enforcement officers are routinely trained that
“excited delirium” is a condition “ ‘characterized by the abrupt onset of aggression and
distress, typically in the setting of illicit substance use, often culminating in sudden
17
death.’ ” But “excited delirium” is not recognized by the American Medical Association,
the American Psychiatric Association, the World Health Organization, or in the
Diagnostic and Statistical Manual of Mental Disorders. Counsel contended that Officer
Williams’s statement thus was speculative and lacked a proper foundation. She also
contended that due to the nature of the “ ‘diagnosis,’ ” Williams was unable to form a
proper opinion and lay the foundation.
The trial court denied defense counsel’s motion “to the extent it seeks to exclude
Officer Williams testifying about his training with regard to excited delirium and the use
of force. That’s different and distinct in the Court’s mind [from] an officer opining that
someone has a specific diagnosis or suffered from a specific medical condition. That
would be an improper opinion of that witness and would likely lack foundation.”
Williams could testify he had been trained on excited delirium and therefore used certain
measures of force, and that following the use of force, he had a concern and took
defendant for medical treatment.
Officer Frank testified he searched defendant’s bag. Inside the bag, he found a
non-criminal amount of marijuana and what appeared to be a methamphetamine pipe.
Frank testified he had seen thousands of methamphetamine pipes like the one he found in
defendant’s bag; they have a very distinctive appearance. This pipe was clean and
unused.
Over defendant’s objection, Frank explained that people typically ingest
methamphetamine by smoking, snorting, or through the veins shooting up. Smoking was
not the only means of ingesting the drug. Asked if based on his training and experience
methamphetamine pipes lasted a long time, Frank stated they are “very breakable so they
break a lot.” He often discovered broken meth pipes on drug users. Frank confirmed on
cross-examination there was no meth residue on the pipe and that no methamphetamine
was found in defendant’s possession.
18
Officer Lovelady testified he had observed Officer Frank’s search of defendant’s
bag. Over defendant’s objections throughout the questioning, Lovelady testified that
pipes like the one found in defendant’s bag were used to smoke methamphetamine. From
his experience, someone who is using methamphetamine displays a higher pulse,
uncontrollable hand movements, rapid eyelid flutters, jerky arm motions, and
hallucinations. Also, people who abuse methamphetamine sometimes exhibit aggression.
Lovelady stated that defendant’s aggressive behavior during the altercation was
consistent with someone who abused methamphetamine and exhibited aggression.
Based on his training and experience, including being a narcotics agent for four
years, Officer Lovelady explained how methamphetamine could affect a person’s ability
to feel pain. People he spoke with talked about the drug as “a euphoric rush.”
Sometimes they hallucinated and were out of touch with reality. He had spoken with
people who had been injured and did not realize it even though the injury was visible.
But that was not true for all users. In one instance, Lovelady spoke with a person who
had been stabbed in the leg; the person was using methamphetamine and had not felt it.
Officer Williams testified that he had requested an ambulance after defendant was
completely restrained. When he learned the ambulance would be delayed, he arranged
with the other officers present to load defendant into the back of a larger patrol vehicle
and immediately transport him to the hospital. Williams did this instead of waiting for
the ambulance because he was concerned with defendant’s level of resistance. His heart
rate could have been elevated, and other medical conditions could occur at that point.
Over defendant’s objections, Officer Williams testified that one of those other
conditions he was concerned about defendant having was a condition he had been trained
on called “excited delirium.” Williams described excited delirium as “when a subject has
used stimulant and/or other type of narcotics, they can have an elevated heart rate, an
extremely elevated heart rate, elevated temperature, which can cause their heart to stop.”
19
2. Analysis
Defendant contends the prosecutor asked the drug-related questions to establish by
insinuation that defendant was under the influence of methamphetamine during the
altercation without a good-faith belief that defendant had actually used
methamphetamine. There is no evidence in the record that defendant had ingested or was
under the influence of methamphetamine or that he possessed methamphetamine.
Defendant did not present any of the symptoms of methamphetamine use described by
Officer Lovelady. The hospital medically cleared him and gave no indication he had
tested positive for methamphetamine. The glass pipe had not been used to ingest
methamphetamine. And none of the officers testified that they believed defendant was
under the influence based on his actions. The evidence of the pipe, Lovelady’s testimony
that some methamphetamine users do not feel pain, and Officer Williams’s testimony
about excited delirium and his concern that defendant could experience that condition
was insufficient to establish defendant was under the influence. Defendant argues that
the prosecutor’s questions thus were designed to insinuate defendant was under the
influence when that fact could not be proven.
We disagree with defendant’s argument. The prosecutor asked the questions to
establish the reasonableness of the peace officers’ use of force, not to insinuate that
defendant was under the influence. The evidence established that the officers could
reasonably believe defendant was under the influence and that they responded
accordingly.
Whether the officers used reasonable force is an objective determination.
(Graham v. Connor (1989) 490 U.S. 386, 397 (Graham).) An excessive force claim
arising in the context of an arrest or investigatory stop of a free citizen invokes the Fourth
Amendment, and all such claims must be analyzed under the Fourth Amendment and its
“reasonableness” standard. (Id. at pp. 394-395.)
20
Under the Fourth Amendment’s reasonableness inquiry, “the question is whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” (Graham,
supra, 490 U.S. at p. 397.) This inquiry “requires careful attention to the facts and
circumstances of each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” (Ibid.)
The reasonableness of a particular use of force “must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” (Graham, supra, 490 U.S. at p. 396.) In making that judgment, the trier of
fact is to consider the officer’s training and experience. (See People v. Lilienthal (1978)
22 Cal.3d 891, 899.) “[R]easonable respect should be paid to police ‘expertise in the area
of detecting suspicious circumstances which, to an ordinary individual, might appear
innocent.’ ” (People v. Clayton (1970) 13 Cal.App.3d 335, 338.) Consistent with that
rule, the trial court instructed the jury that “[i]n deciding whether the arrest was lawful
[i.e., whether the officers used reasonable force], consider evidence of the officer’s
training and experience and all the circumstances known by the officer when he or she
arrested the person.” (CALCRIM No. 2670.)
Because the officers’ training and experience were relevant to determining whether
the officers’ use of force was objectively reasonable, the prosecutor did not ask for and
receive the challenged evidence without a good-faith belief. Indeed, the prosecutor did
not need to establish that defendant was actually under the influence at the time of the
altercation to establish the reasonableness of the officers’ response. While such evidence
would likely be relevant, it was not necessary to establishing that the officers acted
reasonably based on the circumstances known to them and based on their past training
and experience.
21
From the evidence, the jury learned that defendant’s aggressive behavior, his
apparent lack of feelings of pain, and his possession of a methamphetamine pipe were
consistent with someone who had used methamphetamine or another stimulant. Officer
Williams’s concern that defendant could possibly experience excited delirium arose from
his training and experience and explained why he did not wait to have defendant
transported by ambulance. All this evidence was relevant to determining whether the
officers’ use of force under the circumstances and in light of their training and experience
was reasonable. The prosecutor thus did not commit misconduct by asking the
challenged questions.
C. Prosecutor’s closing argument
A prosecutor is given wide latitude during argument. (People v. Williams (1997)
16 Cal.4th 153, 221.) But there are limits. (Ibid.) Defendant contends the prosecutor
committed prejudicial misconduct by making statements in closing argument that
unlawfully inflamed the jurors’ sympathy and support of peace officers and
mischaracterized defense witness Michelle’s testimony based on information not
admitted into evidence.
1. Sympathy towards peace officers
a. Background
The prosecutor began his closing argument by stating, “Police officers deserve to
be safe. They have to deal with dangerous people, dangerous criminals who do not want
to go to prison. We want them to do their jobs. We want them to prevent crime. We
want them to go home to their families at the end of their shifts. They get to go home,
and we get them back at work the next day.”
The prosecutor further argued, “The question you have to ask yourselves and that
you should ask each other is did the police do what we want them to do? We want the
police to protect us. We need them to be able to do their jobs.” The prosecutor
22
concluded his argument by stating, “The officers did what we ask them to do. We don’t
want prowlers in our neighborhoods. We don’t want them to run free to commit more
crimes. We want the police to interact with them, to search them, to detain them and
arrest them if they committed crimes.”
b. Analysis
To raise a claim of prosecutorial misconduct on appeal, the defendant must first
object to the argument at trial on the same ground and request the jury be admonished to
disregard the argument. (People v. Covarrubias (2016) 1 Cal.5th 838, 894.) Defendant
did not object to this portion of the prosecutor’s argument on the ground he asserts on
appeal and thus has forfeited his claim.
Defendant argues his trial counsel rendered ineffective assistance by not objecting
to the prosecutor’s argument. To establish a claim of ineffective assistance of counsel,
defendant must show, “ ‘first, that counsel’s performance was deficient because it “fell
below an objective standard of reasonableness . . under prevailing professional norms.”
[Citations.] Unless a defendant establishes the contrary, we shall presume that “counsel’s
performance fell within the wide range of professional competence and that counsel’s
actions and inactions can be explained as a matter of sound trial strategy.” [Citation.] If
the record “sheds no light on why counsel acted or failed to act in the manner
challenged,” an appellate claim of ineffective assistance of counsel must be rejected
“unless counsel was asked for an explanation and failed to provide one, or unless there
simply could be no satisfactory explanation.” [Citations.] If a defendant meets the
burden of establishing that counsel’s performance was deficient, he or she also must show
that counsel’s deficiencies resulted in prejudice, that is, a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” ’ ” (People v. Bell (2019) 7 Cal.5th 70, 125-126.)
23
To determine whether counsel’s performance was deficient by not objecting, we
must address the merits of defendant’s substantive argument, that the prosecutor
committed misconduct by appealing to the jurors’ sympathies or passions about police
and safety.
A prosecutor’s “appeals to the sympathy or passions of the jury are inappropriate
at the guilt phase of a criminal trial.” (People v. Fields (1983) 35 Cal.3d 329, 362, fn.
omitted.) It is prosecutorial misconduct to “ ‘make arguments to the jury that give it the
impression that “emotion may reign over reason” and to present “irrelevant information
or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an
irrational, purely subjective response.” ’ ” (People v. Redd (2010) 48 Cal.4th 691, 742.)
Defendant asserts the prosecutor’s arguments about needing police to be safe and
to be able to do their jobs and asking the jurors to consider whether the police did what
we want them to do suggested to the jurors that their verdict carried potential social
ramifications. Defendant contends the prosecutor called upon the jurors’ personal
feelings of duty and safety to convict defendant in order to encourage the police to do
their jobs and arrest suspects—reasons unrelated to the evidence and defendant’s guilt or
innocence.
We must view the prosecutor’s statements in the context of the argument as a
whole. (People v. Lucas (1995) 12 Cal.4th 415, 475.) The crux of the case was whether
the peace officers used excessive force against defendant. The bulk of the prosecutor’s
argument centered on that issue and the relevant evidence. Indeed, after introducing his
argument, the prosecutor set forth the principle he would spend most of his time
asserting: “All of the evidence you have is that the officers used force that was
reasonable because it was necessary. It was necessary to overcome the defendant’s
violent resistance.”
Thus, in that context, the jury would have understood that the prosecutor’s
question of whether the police did what we want them to do assumed that the officers’
24
use of force was reasonable and lawful. The argument implicitly emphasized to the jury
that peace officers may lawfully use force when circumstances require. When considered
with the bulk of the prosecutor’s argument, his opening and closing arguments did not
invite the jurors to convict defendant without considering whether the officers’ use of
force was reasonable. The argument thus was not misconduct.
Moreover, defense counsel may have had a tactical reason for deciding not to
object in that an objection may have been taken by the jury as a lack of sympathy for law
enforcement officer safety.
Because the prosecutor’s argument was not misconduct, defendant’s trial counsel
did not render ineffective assistance by not objecting.
2. Michelle’s testimony
a. Background
On cross-examination of Michelle, the prosecutor confirmed that Michelle heard
someone screaming, saw something that upset her, thought someone was going to be
killed, and thus retrieved her phone. Asked why she did not run away, Michelle stated,
“Well, I had a bunch of neighbors standing around watching, so I wasn’t really scared
they were going to try to kill me. I didn’t run away maybe because of what’s been
happening in the United States with all the police stuff going on. I was not scared for my
own life that night; I was only scared for the person that was getting beat up. And I also
did not want somebody to die on my property. That is what was in my mind.”
Asked to clarify what she meant by “all this stuff that’s going on in the country,”
Michelle stated, “Well, we’ve had a lot of stuff in the news where people are getting
killed by the law, by the police. And so maybe that was in the back of my head, I don’t –
you know, I cannot tell you what all went through my head that night.” She agreed that
maybe she did think at the time “I better get this on video in case somebody does die.”
The prosecutor confirmed his understanding of her testimony by stating, “So you weren’t
25
afraid; you wanted to collect evidence of something you thought would happen?”
Michelle responded, “Right. But I was still afraid for the person, not for myself. I was
not afraid for myself.”
Also on cross-examination, Michelle said she saw the officers deploy tasers. The
dialogue continued:
“Q. [prosecutor]. Do you know what a taser is?
“A. [Michelle]. It shoots out an electrical current. That’s what I saw was light,
noises that sounded like electricity and looked like electricity.
“Q. You could see electricity there?
“A. Yes.
“Q. What did it look like?
“A. Green lights.
“Q. Like green lights coming from the officer shooting through the air?
“A. Coming from whatever the officer had in his hand which I assume is a taser,
and then they would also scream, ‘Taser’ and then it would go tch tch tch. And it was
green lights coming out of the taser onto whoever was on the ground.
“Q. Could the green lights be an aiming device, like laser pointer that they used to
aim it?
“A. Excuse me; say that again?
“Q. You said you saw green electricity.
“A. Yeah.
“Q. And I’m asking you is it possible that what you saw was a laser pointer from
the tip of the taser to where the officer was targeting?
“A. Is that possible? I guess so. I mean, I don’t know. It was like a laser and it
was going up and every time they would shoot it up they would say, ‘Taser, taser’ and
then it would go off.
“Q. Do you know if the laser pointers on a taser, what color they are?
26
[¶] . . . [¶]
“A. No, I do not. I wasn’t that close. I’ve never looked at a taser up close, no.”
Describing Michelle during closing argument, the prosecutor stated, “She makes
stuff up. She[] sees things that aren’t there. She’s not a reliable witness. She’s a biased
witness. Do you recall when she said that she saw green lightning shooting from the
officer’s tasers at the defendant? That’s what she said. She said, Tasers shoot green
lightning.”
Defense counsel objected on the ground of facts not in evidence. The trial court
overruled the objection, and the prosecutor continued, “She said, tasers shoot green
lightning, that she saw the green the lightning, and that’s how she knew that a taser was
being used.
“That’s not how tasers work. It’s impossible that she saw that. The fact that she
thinks she does makes her not credible. You can’t believe her because her emotional
state, her response to seeing shocking – seeing something that she thought was shocking
was to have her mind fill in the gaps.”
On rebuttal, the prosecutor continued to address Michelle’s testimony: “She is a
witness, not a very good one, but she’s not a doctor or an expert in use of force. She saw
something that shocked her after being woke in the middle of the night, and her
perceptions were colored by all of the stuff that’s been going on in the news. That’s what
she formed her opinion based on. She – she said it on the stand; honestly, she thought
that they were doing something wrong because of what she sees in the news.”
Defense counsel objected, claiming the argument misstated the evidence. The trial
court overruled the objection, and the prosecutor continued, “She said she thought that
they were doing something wrong because of what she sees in the news. That’s what
colored her perceptions. That’s what caused her to think what was happening was not
good. [¶] She didn’t see what the defendant did. What she saw was green lightning,
which didn’t happen.”
27
b. Analysis
Mischaracterizing evidence is prosecutorial misconduct. (People v. Hill (1998)
17 Cal.4th 800, 823.) “A prosecutor’s ‘vigorous’ presentation of facts favorable to his or
her side ‘does not excuse either deliberate or mistaken misstatements of fact.’ ” (Ibid.)
Relying on evidence outside the record is also misconduct. (Id. at pp. 827-828.) During
argument, the prosecutor may refer to matters not in evidence only if those matters are
common knowledge or are illustrations drawn from experience, history, or literature.
(People v. Williams, supra, 16 Cal.4th at p. 221.)
The prosecutor misstated Michelle’s testimony. In one instance, he asserted
Michelle said she saw the taser emit “green lightning.” Michelle actually stated she saw
and heard the taser emit electricity, and that the electricity looked like green lights. When
asked if the light she saw was possibly a laser pointer, Michelle agreed it was possible but
did not know. The light was like a laser, and it would go on and off each time the taser
was used. Michelle never used the word “lightning.”
In a second instance, the prosecutor argued that Michelle testified she believed
what she saw the officers doing was wrong because of what she saw in the news, and that
is what colored her perception and caused her to believe the officers’ actions were not
good.
What Michelle actually said was she did not run away when she saw what was
happening because of recent news of people being killed by police, and that was one
reason why she retrieved her phone. She was not scared for her own life; she was scared
for the person the police were beating. The prosecutor confirmed she was not afraid and
that she did not run away because she wanted to collect evidence of something she
thought might happen. Michelle did not testify that what she saw on the news led her to
believe what the officers were doing was wrong.
28
The prosecutor also made an argument based on evidence that was not in the
record. After stating that Michelle said she had seen green lighting and that was how she
knew a taser was being used, the prosecutor stated, “That’s not how tasers work. It’s
impossible that she saw that. The fact that she thinks she does makes her not credible.”
There is no evidence in the record that supports the prosecutor’s assertion of how tasers
do or do not work and that it would be impossible for Michelle to see what she saw. Nor
do we believe that information is common knowledge. Thus, the prosecutor argued
Michelle was not credible based on facts not in evidence.
D. Prejudice
“ ‘A defendant’s conviction will not be reversed for prosecutorial misconduct’ that
violates state law . . . ‘unless it is reasonably probable that a result more favorable to the
defendant would have been reached without the misconduct.’ ” (People v. Wallace,
supra, 44 Cal.4th at p. 1071.)
We have concluded the prosecutor committed misconduct by not admonishing
witnesses and eliciting testimony from them that violated a court order and by misstating
Michelle’s testimony. Nonetheless, the errors did not so infect the trial with unfairness as
to make defendant’s conviction a denial of due process, nor is it reasonably probable that
defendant would have received a more favorable verdict had these instances of
misconduct not occurred.
Both of the comments solicited in violation of the court order were isolated, brief,
and immediately struck from the record. In both instances, the court admonished the jury
not to consider the evidence that had been struck for any purpose. We presume the jury
followed those instructions, and there is no evidence rebutting that presumption. (People
v. Washington (2017) 15 Cal.App.5th 19, 26.)
There is also no evidence that the prosecutor intentionally elicited inadmissible
evidence. It is misconduct for a prosecutor to elicit inadmissible testimony intentionally;
29
merely eliciting evidence is not misconduct. (People v. Fuiava (2012) 53 Cal.4th 622,
679.) The prosecutor’s questions were facially neutral. Although he had failed to inform
the witnesses of the trial court’s orders, there is no indication he intentionally sought to
elicit inadmissible testimony through the questions he asked.
In addition, an argument exists that Officer Lobsinger’s statement did not violate
the trial court’s order. The order prohibited Lobsinger from testifying it sounded like
Officer Lovelady was in a fight for his life. But that is not what Lobsinger said. When
he testified, he said that while monitoring the radio, he heard multiple mic keys and
yelling. Asked to explain a mic key, Lobsinger stated that officers typically carry a mic
or radio on them, and when the mic starts clicking over the radio, the other officer is most
likely in a physical confrontation. He said that “you fight with somebody and the mic
accidentally clicked and that just –it sounds bad because you hear yelling in the
background it sounds like somebody is fighting for their life.” Lobsinger was describing
a typical incident from his experience, not specifically what he heard while listening to
Lovelady’s radio.
The misstatements of Michelle’s testimony were minor. “Green lightning” is not
so different from Michelle’s saying she saw electricity in the form of green light. As to
what Michelle had seen in the news, although she did not testify that what she saw on the
news led her to believe what the officers were doing was wrong, it did lead her to retrieve
her phone to make a video of the officers beating defendant, as she had seen videos in the
news depicting police brutality. And although the prosecution stated without supporting
evidence that tasers did not work the way Michelle had described, there was no dispute
that Officers Lovelady and Williams fired their tasers at defendant.
Moreover, it is not reasonably probable that defendant would have received a more
favorable verdict had the offending testimony not been elicited. Defendant argues this
was a close case that was decided based on witness credibility. But all the evidence
indicates defendant unlawfully resisted lawful orders, giving the officers authority to
30
apply progressive levels of force with each level of resistance. Indeed, Michelle,
defendant’s only eyewitness, testified she did not know whether defendant was hitting,
kicking, or assaulting the officers during the beating. She did not know because it was
dark, and she could not see. She also did not see what led up to the individual screaming.
Her testimony thus did not significantly aid the jury in determining whether the officers’
use of force was excessive under the circumstances.
The only evidence in the record is that defendant refused to comply with the
officers’ lawful order. As they attempted to overcome his resistance with reasonable and
progressive force, he began resisting violently. Had the prosecutor not committed any of
the instances of misconduct, it is not reasonably probable defendant would have received
a more favorable verdict. The prosecutor’s misconduct was not prejudicial.
II
Denial of Motions for Mistrial
A trial court should grant a mistrial “ ‘if the court is apprised of prejudice that it
judges incurable by admonition or instruction.’ ” (People v. Cox (2003) 30 Cal.4th 916,
953, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn.
22.) “Whether a particular incident is incurably prejudicial is by its nature a speculative
matter, and the trial court is vested with considerable discretion in ruling on mistrial
motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.)
Defendant contends the trial court abused its discretion when it denied his motions
for mistrial made after (1) Officer Williams testified he had heard defendant was on
parole, and (2) Officer Lobsinger purportedly testified that the radio transmission
sounded like Officer Lovelady was fighting for his life.
31
A. Motion After Officer Williams’s testimony
1. Background
We described above the incident where Officer Williams testified he had heard
over the radio that defendant was on parole, in violation of a court order. The trial court
admonished the jury. The court confirmed with Williams that he had not been
admonished by the prosecutor, but it ultimately denied defendant’s motion for a mistrial.
The court explained its reasons as follows:
“I am going to deny the motion for mistrial finding that the evidence, which was
admitted, which was contrary to the Court’s ruling in motion in limine [but] the prejudice
of admitting that evidence can be cured by the instruction that the Court has given and the
admonition that the Court has given.
“The Court has stricken the testimony from the record and has admonished the
jurors to disregard it. And if you would like, Ms. Carpenter [defense counsel], I will give
that same admonishment again to the jurors. The Court is relying upon People v. Harris
[(1994)] 22 Cal.App.4th 1575, which is factually analogous to this case. In that case, the
witness inadvertently disclosed the Defendant’s parole status and the trial court found that
it was not an incurable prejudice, that it was properly cured by admonishing the jurors
and striking the testimony.
“Also the Court reviewed People v. Williams, [supra,] 16 Cal.4th 153. And just
now reviewed the case as cited by Defense counsel, including People v. Morgan, which is
also very factually analogous[,] 87 Cal.App.3rd 59[,] finding that the Court can cure by
granting a motion to strike and giving an admonishment to the jurors – can cure the
prejudice.
“As such, I am going to deny the motion for mistrial. I would also note for the
record that the Court always assumes and may presume that the jurors will follow the
32
Court’s admonitions and instructions. And I’m also relying upon the fact that there has
been no pattern of egregious misconduct on the part of the prosecution.
“Mr. Frazer [the prosecutor] has offered an explanation that he thought he
admonished the witness but could not be certain. When we asked the witness, the
witness clearly indicated that admonishment had not been given. So it is the
prosecution’s error in this case. And although the Court is not happy about that error,
especially in light of the fact that the Court very clearly indicated to both counsel to
advise their witnesses of the Court’s rulings and motion in limine, I don’t find that it was
intentionally done or that there was any intentional misconduct on the part of the
prosecution.
“The Court notes that this was a single, brief remark that was volunteered by the
witness. I don’t believe the prosecutor led him into volunteering that remark, because the
question was there anything else that you overheard en route that was, you know, in your
consideration?
“It was a similar question to the question before, and I don’t think that the
prosecutor was intending the witness to say, I heard the Defendant’s parole status. And
so for that reason, the Court finds that there was not intentional misconduct on part of the
prosecution, and it was immediately addressed by the Court by striking and giving the
admonition to the juror so they should disregard.”
2. Analysis
Defendant contends the trial court abused its discretion in denying the motion for
mistrial because it based its ruling largely on whether the prosecutor intentionally elicited
the offending testimony. Defendant asserts that intention is an impermissible factor to
consider, as neither the state nor the federal constitutional standards for prosecutorial
misconduct require a showing of bad faith on the prosecutor’s part. He further argues
that even if the trial court could consider the prosecutor’s intent, the court exceeded the
33
bounds of reason when it found the prosecutor did not intentionally elicit the barred
testimony. The prosecutor knew before trial that Officer Williams had heard about
defendant’s parole status, yet he asked Williams twice what he had heard on the radio.
“There is little doubt exposing a jury to a defendant’s prior criminality presents the
possibility of prejudicing a defendant’s case and rendering suspect the outcome of the
trial.” (People v. Harris, supra, 22 Cal.App.4th at p. 1580.) But whether the erroneous
admission of such evidence warrants granting a mistrial or whether the error can be cured
by striking the testimony and admonishing the jury rests in the trial court’s discretion.
(Id. at p. 1581.) “[I]t is only in the ‘exceptional case’ that any prejudice from an
improperly volunteered statement cannot be cured by appropriate admonition to the jury.”
(People v. Franklin (2016) 248 Cal.App.4th 938, 955.)
To establish prosecutorial misconduct, the defendant need not show the prosecutor
acted in bad faith. (People v. Centeno (2014) 60 Cal.4th 659, 666.) The evidence’s
disclosure may harm the defendant whether or not it was committed intentionally.
(People v. Hill, supra, 17 Cal.4th at pp. 822-823.) However, it is not misconduct for a
prosecutor to elicit inadmissible testimony from a reasonable, if mistaken, effort to elicit
admissible evidence. (People v. Parker (2022) 13 Cal.5th 1, 76.) The trial court found
no evidence suggesting the prosecutor’s question was anything more than that.
“The California Supreme Court has consistently found vague and fleeting
references to a defendant’s past criminality to be curable by appropriate admonition to the
jury.” (People v. Franklin, supra, 248 Cal.App.4th at p. 955, and cases cited therein.)
A curative instruction to disregard improper testimony ordinarily is sufficient to protect a
defendant from the injury of that testimony, and we presume a jury is capable of
following such an instruction. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834.)
In the present case, the testimony of defendant’s parole status was brief and did
not disclose the nature of defendant’s prior crimes. The trial court immediately struck the
offending testimony from the record and admonished the jury to disregard it.
34
Additionally, the evidence against defendant was very strong. Generally, “[i]mproper
evidence of prior offenses results in reversal only where the appellate court’s review of
the trial record reveals a closely balanced state of the evidence.” (People v. Stinson
(1963) 214 Cal.App.2d 476, 482.) As we have already determined, had the misconduct
not occurred, it is not reasonably likely defendant would have received a more favorable
verdict. Under these circumstances, we conclude the trial court did not abuse its
discretion by denying defendant’s first motion for a mistrial.
B. Motion After Officer Lobsinger’s testimony
1. Background
As explained above, Officer Lobsinger testified that as he was responding to the
scene, he heard multiple mic keys and yelling over the radio. In his experience, this
typically indicated the other officer was involved in a physical altercation. When an
officer hears this, “it sounds bad because you hear yelling in the background it sounds
like somebody is fighting for their life.”
The trial court struck Officer Lobsinger’s last statement from the record and
admonished the jury to disregard it. It excused the jury, and then it asked Lobsinger if he
had been instructed on the court’s in limine ruling that his opinion that Officer Lovelady
was in a fight of his life was excluded from testimony. Lobsinger did not recall being
instructed. Defendant moved for mistrial, and the court ultimately denied the motion. It
stated:
“So declaring a mistrial, the law indicates that the Court must make very specific
findings because of the severity of the action taken in declaring a mistrial. And
specifically the Court must find that there’s such prejudice that it cannot be cured by any
type of corrective or curative action.
“And in this case the Court’s ruling with regard to the offer of proof as to Officer
Lobsinger’s testimony was very specific. The Court ruled that he could not offer the
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opinion that Officer Lovelady was in a fight for his life based upon what he heard on the
radio. And if you reflect back to what I believe I stated on the record as to the basis for
that opinion or for that ruling wasn’t under 352, it was the fact that there was an
inadequate foundation.
“In other words Officer Lobsinger wasn’t present at the time, he’s hearing
something that’s on the radio that is an altercation, and the Court didn’t find that was a
sufficient foundation to determine that Officer Lovelady was in a fight for his life. And
so the Court’s recollection of its ruling and motions in limine that it was an improper
opinion that lacked foundation.
“And so what happened today, I believe Officer Lobsinger was indicating that
based upon what he heard he felt that Officer Lovelady was in a fight for his life. But I
don’t have the specific words he used; Mr. Frazer has heard it differently.
“But regardless, in light of the evidence that has come into this case, you’ve had
two or three law enforcement officers who have testified that they were in such an
altercation that they believed deadly force was going to be necessary. The Defense,
through their opening statement, has indicated that [Vanessa] is going to testify that she
thought the Defendant was going to be murdered. And so in light of that testimony, that’s
going to come in in this case. I don’t find that Officer Lobsinger’s brief statement is
prejudicial – is unduly prejudicial in this case and is such that, as Ms. Carpenter argued,
that it’s a miscarriage of justice.
“So although the Court is not pleased that we have a second violation of the
Court’s orders and motion in limine, I cannot find that it rises to the level of prejudice
such that it cannot be cured by an admonition and striking the testimony, which the Court
has done, such that the Court should declare a mistrial.
“However, because this has happened twice and this is not something the Court
takes lightly and not something the Court wants to be faced with, but if we have any
further violations of the Court’s order, the Court will again hear a motion for mistrial but
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also contemplate the issuance of an order to show cause with contempt because that has
now been two violations of the Court’s orders in this case.
“And so, you know, counsel, whatever we have to do to properly instruct our
witnesses needs to be done to avoid this from happening again. So the Court is denying
the motion for a mistrial finding that this could be cured and it is not – does not rise to a
level of a miscarriage of justice, especially in light of the evidence presented in this case.
However, it is an improper opinion, and the Court is striking it for that reason.”
2. Analysis
The trial court did not abuse its discretion by not granting the second motion for a
mistrial. By the time Officer Lobsinger had testified, the jury had already heard that
defendant and Officer Lovelady had exchanged blows, and as defendant’s resistance
increased, pepper spray, batons, tasers, and a dog were used to no avail to restrain
defendant. Defendant had assaulted Officer Lovelady multiple times, and it took the
strength of three men to hold him down to handcuff him. And defendant had screamed
through much of the conflict. Thus, when the jury heard Lobsinger testify generically
that when listening to a fight on the radio “it sounds like somebody is fighting for their
life,” it heard nothing prejudicial or inconsistent with what the jury had already heard
from testimony.
Moreover, the trial court’s concern about the evidence was its lack of foundation to
the extent it was referring specifically to Officer Lovelady being in a fight of his life, not
that the evidence was unduly prejudicial. And when Officer Lobsinger testified, he did
not refer specifically to Lovelady but rather spoke about his experience in hearing fights
over the radio. Thus, the foundational concern was not present. The court thus did not
abuse its discretion by not granting a mistrial over Lobsinger’s statement.
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III
Evidence of Excited Delirium and the Glass Pipe
Defendant contends the trial court abused its discretion by admitting evidence of
excited delirium and the glass pipe. We review the trial court’s rulings on the admission
of evidence for an abuse of discretion, including the court’s finding of the evidence’s
prejudicial impact under Evidence Code section 352. (People v. Merriman (2014)
60 Cal.4th 1, 74.)
A. Excited delirium
Defendant contends the trial court erred in admitting evidence of excited delirium
because the prosecution did not lay a sufficient foundation. He argues that Officer
Williams did not explain why defendant’s level of resistance or any symptoms he
exhibited led Williams to believe defendant suffered from excited delirium. Williams’s
testimony that symptoms of excited delirium were a manifestation of narcotic use
exceeded the trial court’s in limine order allowing the evidence. Williams never saw
defendant use narcotics or receive information that he was under the influence. Thus,
defendant argues, instead of providing context for Williams’s decision to take defendant
to the hospital, Williams’s testimony was an unsupported opinion that defendant suffered
from excited delirium and was purely a backdoor maneuver to assert to the jury that
defendant was under the influence during the altercation. Defendant claims the evidence
was speculative, irrelevant, and lacked foundation.
Defendant mentions that recent action by the Legislature establishes that excited
delirium is not a valid medical diagnosis, in agreement with the argument made by
defense counsel at trial. Effective January 1, 2024, the Legislature declared that excited
delirium is not recognized as a valid medical diagnosis or cause of death in California,
and peace officers are prohibited from using the term “excited delirium” to describe an
individual in an incident report. (Health & Saf. Code, §§ 24401, 24402.) An officer may
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describe the characteristics of a person’s conduct, but the officer may not generally
describe the person’s demeanor, conduct, or physical and mental condition at issue as
excited delirium. (Health & Saf. Code, § 24402.)
Defendant acknowledges that the Legislature did not indicate that these statutes
applied retroactively, nor did the Legislature specifically preclude the use of excited
delirium in criminal actions. But he asserts it is important to note the Legislature’s
recognition of the illegitimate nature of the term “excited delirium” and that it is not a
valid medical diagnosis.
The trial court did not abuse its discretion by admitting Officer Williams’s
testimony concerning excited delirium. The trial court denied defendant’s motion against
admitting the evidence “to the extent it seeks to exclude Officer Williams testifying about
his training with regard to excited delirium and the use of force. That’s different and
distinct in the Court’s mind [from] an officer opining that someone has a specific
diagnosis or suffered from a specific medical condition. That would be an improper
opinion of that witness and would likely lack foundation.”
Citing People v. Lilienthal, supra, 22 Cal.3d 891, the trial court stated that an
officer’s training was relevant and admissible. “So the extent that Officer Williams
testifies that he has been trained to recognize that as a concern – ‘that’ being excited
delirium – and therefore uses certain measures of force and that following the use of
force he had a concern and took the Defendant for medical treatment, that is all
admissible testimony and based upon the officer’s training and experience and his
personal observations of the altercation at hand. [¶] The officer would be precluded
from testifying that the Defendant, in fact, suffered excited delirium or was diagnosed
with such. That would be an improper opinion.”
The prosecutor set an adequate foundation to admit the evidence. After asking
Officer Williams why he wanted to take defendant to the hospital instead of waiting for
an ambulance, Williams stated that from his experience, he was concerned about the
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medical conditions defendant could potentially have due to the altercation. He was
concerned about a specific medical condition he had seen in his training and experience.
The prosecutor next laid further foundation by having Williams describe the training he
had received regarding medical conditions, and in particular medical conditions a suspect
may exhibit after an altercation with officers. From that training, Williams was
concerned about defendant experiencing excited delirium. Then Williams explained from
his training what the condition was. The condition could arise when a suspect has used a
stimulant or other type of narcotic, and the suspect can have an elevated heartrate and an
elevated temperature which can cause the suspect’s heart to stop.
Consistent with the trial court’s ruling, Officer Williams did not testify as to
whether in his opinion and from observing defendant’s condition and symptoms,
defendant was actually suffering from excited delirium. Rather, he testified that, based
on his training and experience, he was concerned that defendant could have the condition
due to the altercation, and that was why he had defendant transported to the hospital
quickly.
While the new legislation establishes that Officer Williams may no longer use the
term “excited delirium” to describe an individual in an incident report, defendant does not
contend that the legislation is retroactive to this matter or that it would bar the testimony
Williams gave. Because the trial court limited Williams to testifying about excited
delirium as a matter understood from his training and experience and a reason why
Williams transported defendant to the hospital quickly, the court did not abuse its
discretion admitting the evidence.
B. Glass pipe
Defendant contends the trial court abused its discretion in admitting evidence that
he was in possession of a glass pipe because the factual basis for the court’s ruling was
not supported by substantial evidence. The prosecution asserted the officers would testify
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that defendant appeared to be under the influence based on his actions, but the officers
never so testified. They testified they were surprised at his level of resistance to the force
used against him. Officer Lovelady testified that some people who abuse
methamphetamine exhibit aggression, and that was consistent with how defendant acted,
but Lovelady never testified he believed defendant was under the influence.
Defendant also contends that the trial court’s finding that the glass pipe was
relevant to explain why he resisted lacked substantial evidence and was arbitrary and
capricious. There was no evidence why defendant resisted being searched, and his reason
for refusing the search was irrelevant to the elements of the charged crimes. Also, the
pipe was clean and unused, and there was no evidence to suggest defendant had used the
pipe to consume methamphetamine at any time. Defendant argues that evidence of the
pipe was thus irrelevant and not probative to the criminal charges.
The trial court did not abuse its discretion. The evidence was relevant to explain
how defendant’s behavior in resisting arrest was consistent with someone who had used
methamphetamine. Officers Lovelady and Williams testified from their experience and
training that people who abuse methamphetamine sometimes exhibit aggression and do
not feel pain. Defendant’s behavior was consistent with those traits. Thus, it was
apparent to the officers that defendant was potentially under the influence of
methamphetamine at the time of the altercation. His possessing a glass pipe commonly
used to smoke methamphetamine was thus relevant to the officers’ perception of the
situation and whether they used excessive force. The pipe was also relevant to explain
why someone who was subject to warrantless searches may have resisted arrest.
Even if the trial court erred in admitting the evidence of excited delirium and the
glass pipe, the error was not prejudicial. We review the erroneous admission of evidence
for prejudice under the Watson standard and determine whether it is reasonably probable
defendant would have received a more favorable result had the errors not occurred.
(People v. Watson (1956) 46 Cal.2d 818, 836.)
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A more favorable result is not reasonably probable. Had the evidence not been
admitted, the jury still would have learned from Officers Lovelady and Williams that
based on their experience and training, defendant’s aggressiveness and his lack of a
response to pain were consistent with some individuals who abuse methamphetamine.
The jury also would still have the evidence of defendant’s actual resistance and the
progressive elevation of force in response to defendant’s progressive resistance. Thus,
even without evidence of excited delirium and the glass pipe, it is not reasonably
probable defendant would have received a more favorable verdict.
IV
Cumulative Error
Defendant contends the cumulative impact of the alleged prosecutorial and
evidentiary errors denied him a fair trial. “Under the cumulative error doctrine, the
reviewing court must ‘review each allegation and assess the cumulative effect of any
errors to see if it is reasonably probable the jury would have reached a result more
favorable to defendant in their absence.’ [Citation.]” (People v. Williams (2009)
170 Cal.App.4th 587, 646.)
We have concluded the prosecutor committed misconduct by not admonishing two
witnesses not to testify of defendant’s parole status or that someone sounded like he was
in the fight of his life, mischaracterizing Michelle’s testimony as saying she saw “green
lightning” when the taser was used and saying she based her opinion of the officer’s
behavior on current news, and discrediting Michelle’s testimony with an understanding of
how tasers operated that was not in evidence.
We have found that each of these errors was not prejudicial under the
circumstances, and we find that the errors were not collectively prejudicial. The jury
already knew defendant was subject to warrantless searches, the reference to “fight of his
life” was generic and not specific to Officer Lovelady, Michelle did say the laser emitted
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green light, that news of police brutality was part of her thinking but not for the purpose
argued by the prosecutor, and the off-the-record understanding that tasers did not emit
green lightning did not undercut Michelle’s testimony that the taser emitted electricity
and green light. These errors did not result in defendant not receiving a fair trial.
V
Senate Bill No. 567
Defendant contends he is entitled to resentencing under amendments to section
1170 made by Senate Bill No. 567 (Senate Bill 567) creating a presumption for the low
term if the defendant suffered childhood trauma. Defendant was sentenced to an upper
term sentence on count 1 before Senate Bill 567 became effective in 2022. The new
legislation makes the low term the presumptive term where the defendant experienced
psychological, physical, or childhood trauma, including abuse, neglect, exploitation, or
sexual violence. (§ 1170, subd. (b)(6)(A).) It also imposes conditions on when an upper
term may be imposed. (§ 1170, subd. (b).)
According to defendant’s statement contained in the probation report, defendant
was subject to childhood trauma, and thus would benefit from sentencing changes
imposed under Senate Bill 567.
Senate Bill 567 applies retroactively to defendant. (People v. Lynch
(2024) 16 Cal.5th 730, 748-749.) The Attorney General agrees with defendant that
remand for resentencing is warranted so the trial court may resentence defendant in
accordance with Senate Bill 567. We agree with the parties and will remand this matter
for a full resentencing.
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VI
Pitchess Motion
Defendant filed a Pitchess1 motion requesting the trial court review and disclose
any information related to excessive force and untruthfulness contained in the
employment personnel records of Warden Galwey and Officers Lovelady and Williams.
The trial court reviewed the records in camera and announced in open court that none of
Galwey’s records would be disclosed, and that it did not find anything in Lovelady’s and
Williams’s records it would order be disclosed except relating to one of Lovelady’s prior
employers. The court ordered the records and transcripts of the hearings be sealed.
Defendant has requested that we review the sealed record to determine whether the
trial court abused its discretion in determining that none of the personnel files contained
discovery material favorable to defendant under Pitchess or Brady v. Maryland (1963)
373 U.S. 83, 87. The Attorney General does not object to defendant’s request.
We review a trial court’s decision on the discoverability of material in police
personnel records under an abuse of discretion standard. (People v. Jackson (1996)
13 Cal.4th 1164, 1220-1221.) We have reviewed the sealed personnel records that the
trial court reviewed and which were filed with this court, and we have found no
disclosable evidence. The trial court did not abuse its discretion in not disclosing any
information from the personnel files (except for the prior employment information).
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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DISPOSITION
The judgment is affirmed. The matter is remanded only for a full resentencing in
accordance with all applicable laws.
HULL, Acting P. J.
We concur:
BOULWARE EURIE, J.
WISEMAN, J.
 Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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