People v. Kelly CA2/1

Filed 3/23/21 P. v. Kelly CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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This opinion has not been certified for publication or ordered published for purposes of
rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B302843
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. YA097127)
v.
ROBERT KELLY, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Alan B. Honeycutt, Judge. Affirmed as
modified.
Lynette Gladd Moore, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield, and Michael C. Keller,
Deputy Attorneys General for Plaintiff and Respondent.
________________________________
A jury convicted defendant Robert Kelly, Jr., of one count
of failing to perform a duty after an accident in violation of
Vehicle Code1 section 20002, subdivision (a), a misdemeanor.
The court placed him on informal probation for three years.
Defendant contends that the court erroneously failed
to instruct the jury as to the defense of necessity and that a
recent amendment to Penal Code section 1203a, which limits
misdemeanor probation to a maximum of one year, should
apply retroactively to his case. He also requests that we review
the record of an in camera hearing held pursuant to Pitchess v.
Superior Court (1974) 11 Cal. 3d 531 (Pitchess).
We hold that the court did not err in failing to give a
necessity defense instruction and agree with defendant that the
reduction of the maximum probation term applies to him, and
modify the judgment accordingly. We have reviewed the sealed
record of the Pitchess hearing and find no error.
FACTUAL SUMMARY
A. Prosecution Case
On the evening of September 14, 2017, O.G., M.G., and
their 12-year-old son (collectively the Garcias) were in the drive-
through lane of a fast food restaurant where they ordered food.
O.G. was driving and her husband, M.G. was in the backseat.
Defendant pulled in behind the Garcias and ordered food.
He moved forward and “tapped” the Garcias’ car with his car.
M.G. got out of the car, looked at the rear of the car, saw no
1Subsequent unspecified statutory references are to the
Vehicle Code.
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damage, waved to defendant and told him “it was okay,” and
returned to his car.
After the vehicle in front of the Garcias moved up in the
line, the Garcias moved forward. O.G. and M.G. got out of the
Garcias’ car together to see if there was damage, saw none, and
M.G. again indicated to the defendant that “it’s okay.”
Defendant then began honking his car horn and yelling
profanities and racial slurs at the Garcias.2 They returned to
the car and O.G. called the police. Defendant continued to yell
at the Garcias.
The Garcias moved up to the pickup window. While
they waited for their food, defendant accelerated his car and
“slammed” into the Garcias’ car, damaging the Garcias’ bumper.
A manager of the restaurant came outside to see what was
happening and O.G. called the police again.
M.G. got out of the car and checked on the damage to his
car’s bumper. He looked at defendant and said, “[W]hy did you
do this?” Defendant continued to yell profanities and racial
slurs at the Garcias. M.G. then walked to the front of the
restaurant, where he spoke with the restaurant’s manager.
O.G. and her son continued to wait in the car.
Los Angeles County Sheriff ’s Deputy Maribel Alvarado
arrived and asked O.G. and her son to get out of their car. They
did, and joined M.G. near the front of the restaurant.
Deputy Alvarado approached defendant, who was still
honking his horn. Defendant told Deputy Alvarado that he was
tired of waiting and wanted to leave. The deputy told him that
the vehicle ahead of him was not finished at the pickup window,
2 The Garcias are Hispanic; defendant is Caucasian.
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so he could not leave. Defendant told Deputy Alvarado: “I don’t
care. They won’t move. I just want to go.” The deputy then
asked defendant if he had hit the Garcias’ vehicle; he said he
did not and that he wanted to leave. After Deputy Alvarado
asked defendant if he had been drinking or was on medication,
defendant became agitated and aggressive. The deputy then
called for backup.
When defendant began to look around inside his vehicle
and reach for something, Deputy Alvarado asked him to get out
of his car. Defendant refused and yelled at the deputy that she
would “have to make [him] get out of the car.”
According to O.G. and M.G., defendant pulled Deputy
Alvarado toward him and hit the deputy in the face and chest.
Deputy Alvarado, however, testified that defendant did not pull
her into the car or hit her, but rather that she had reached into
the car to try to open the door and defendant swatted her hand
away.
O.G., believing that defendant was hitting Deputy
Alvarado, told M.G. to help the deputy. M.G. then ran to
defendant’s car and hit defendant in the face with his hand.
Deputy Alvarado told M.G. to go away and not get involved.
While Deputy Alvarado was reaching into the vehicle
to open the door, defendant began driving in reverse, out of
the drive-through lane. Around that time, another deputy,
Deputy Mario Gomez, arrived. After backing out of the drive-
through lane, defendant drove through the parking lot and over
a curb-framed planter as the deputies drew their firearms and
yelled at him to stop. Defendant continued to drive out of the
parking lot, nearly hitting the officers, and sped away into the
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street. Deputies Alvarado, Gomez, and a third deputy, Deputy
Jorge Ortiz, apprehended defendant a short time later.
B. Defense Case
Defendant testified as follows.
Defendant is disabled and has “difficult mobility issues.”
He must use crutches, a walker, or a wheelchair as a result of
hip and knee replacement surgeries and broken wrists. He is
“constantly . . . in pain,” which makes him irritable at times.
By the time defendant entered the drive-through lane at
the restaurant on the night of the incident, defendant had had
“a long day,” was feeling stressed because of “personal family
issues,” and experiencing physical pain.
From the time he ordered his food until the altercation
started, 10 or 15 minutes elapsed. Defendant “became a bit
irritable” and he honked his horn a couple of times. M.G. then
got out of the Garcias’ car and walked towards defendant’s car.
Defendant wondered why M.G. was looking at the rear bumper
on the Garcias’ car, because defendant had not bumped the car.
M.G. appeared to be “a little agitated,” and raised his hands as
if to gesture, “what’s up?,” and called defendant an “asshole.”
They both then cursed at each other, but defendant did not use
any racial slurs.
The second time M.G. got out of his car, O.G. came with
him. Defendant felt confused and had no idea why “people
are getting out of their cars at a drive[-]through.” M.G. told
defendant that he hit their vehicle, and defendant responded,
“I never touched your vehicle.”
The situation “escalated” and people in the car behind
defendant were talking about dragging him out of the car and
making a citizen’s arrest. Someone got out of that car and
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walked toward him. He now had “people coming towards [him]
in the front and people approaching [him] from the rear.”
M.G. went to stand outside his car by the pickup window,
while the Garcias’ car remained in front of him, blocking his
forward movement. By that time, defendant had become “a bit
irritated” and “want[ed] to leave” and “go home.” “Curse words
were exchanged.”
When Deputy Alvarado arrived and questioned him,
he explained that he did not “know what is going on” or “why
they’re accusing [him]?” He told Deputy Alvarado he was tired,
he wanted his food, and he wanted to go home. Because of his
disabilities and the limited space between his car and the wall
adjacent to the drive-through lane, it would have been very
difficult for him to get out of his car.
While Deputy Alvarado stood outside defendant’s car,
M.G. approached and punched defendant on the left side of his
face. When Deputy Alvarado did nothing to detain or restrain
M.G., defendant believed he could not trust the deputy “to do
her job” or ask her for help. Meanwhile, the car that was behind
him had left, allowing him to back out. He “wanted to get out of
there, so [he] didn’t get hurt anymore.” He began backing up
because he had “no other way out.”
He did not grab or pull on Deputy Alvarado or punch her.
He merely pushed or swatted her hand away because he was
putting his car in reverse and did not want her to get hurt.
After backing out of the drive-through lane, defendant
rolled up his windows and drove through the parking lot. As he
drove through the lot, he saw the car that had previously been
behind him in the drive-through lane with the occupants who
had threatened to drag him out of his car, and the car appeared
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to be driving at him or trying to cut him off. He felt that he
“was in real danger” and was “afraid for [his] life.”
Defendant has prescription eyeglasses for wearing while
driving at night, but was not wearing them as he drove through
the parking lot. And although he ordinarily wears a hearing
aid, he was not wearing it that night because the batteries were
dead. He had his radio turned on. He did not hear any officer
say anything to him, and he did not attempt to drive at or hit
the deputies.
The defense also introduced testimony from several
witnesses who testified as to defendant’s reputation in the
community for honesty, nonviolence, and an absence of racist
beliefs or racial bias.
C. Procedural History
In April 2018, defendant was charged by information
with: two counts of assaulting police officers (Deputies Alvarado
and Gomez) with a deadly weapon and with force likely to
produce great bodily injury (Pen. Code, § 245, subd. (c)); one
count of assault with a deadly weapon (a car) upon the
occupants of the Garcias’ car (Pen. Code, § 245, subd. (a)(1); and
one count of failing to perform a duty after an accident (§ 20002,
subd. (a)), a misdemeanor.
In November 2018, defendant filed a motion for the
disclosure of “police personnel records” concerning Deputies
Alvarado, Gomez, and Ortiz, pursuant to Pitchess, supra, 11
Cal. 3d 531. Specifically, he requested that the court “conduct
an in camera review of the Pitchess material; and provide
counsel with the discovery to which he is entitled under the
law.” Based on defendant’s allegations that the officers used
excessive force in apprehending him, the court granted the
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request for in camera review of the requested personnel files.
The court conducted that review on February 20, 2019, with a
custodian of records for the Los Angeles County Sheriff ’s
Department. At the conclusion of the hearing, the court sealed
the transcript and ordered certain records be disclosed to
defense counsel.
On October 15, 2019, a jury found defendant not guilty
of the felony assault charges and found him guilty of failing
to perform a duty after an accident.
The court suspended the imposition of sentence and
placed defendant on informal summary probation for 36 months
subject to conditions that he serve 90 days in jail and attend
anger management courses. The court also imposed certain
statutory assessments and a restitution fine.
DISCUSSION
A. Necessity Defense
Defendant contends that the court erred by denying his
request to instruct the jury as to the defense of necessity. We
reject the contention.
A trial court must instruct “on any affirmative defense
for which the record contains substantial evidence [citation]—
evidence sufficient for a reasonable jury to find in favor of the
defendant [citation]—unless the defense is inconsistent with
the defendant’s theory of the case [citation]. In determining
whether the evidence is sufficient to warrant a jury instruction,
the trial court does not determine the credibility of the defense
evidence, but only whether ‘there was evidence which, if
believed by the jury, was sufficient to raise a reasonable
doubt.’ ” (People v. Salas (2006) 37 Cal. 4th 967, 982.) Our
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review is de novo. (People v. Russell (2006) 144 Cal. App. 4th
1415, 1424.)
“ ‘The necessity defense is very limited and depends
on the lack of a legal alternative to committing the crime.
It excuses criminal conduct if it is justified by a need to avoid
an imminent peril and there is no time to resort to the legal
authorities or such resort would be futile.’ ” (People v. Verlinde
(2002) 100 Cal. App. 4th 1146, 1164 (Verlinde).) “ ‘ To justify
an instruction on the defense of necessity, a defendant must
present evidence sufficient to establish that [he or] she violated
the law (1) to prevent a significant and imminent evil, (2) with
no reasonable legal alternative, (3) without creating a greater
danger than the one avoided, (4) with a good faith belief that
the criminal act was necessary to prevent the greater harm,
(5) with such belief being objectively reasonable, and (6) under
circumstances in which [he or] she did not substantially
contribute to the emergency.’ ” (Id. at pp. 1164–1165; see also
CALCRIM No. 3403.)
The law defendant violated is section 20002,
subdivision (a), which provides in relevant part: “The driver
of any vehicle involved in an accident resulting only in damage
to any property, including vehicles, shall immediately stop
the vehicle at the nearest location that will not impede traffic
or otherwise jeopardize the safety of other motorists. . . . The
driver shall also immediately do either of the following: [¶]
(1) Locate and notify the owner or person in charge of that
property of the name and address of the driver and owner of
the vehicle involved . . . [or] [¶] (2) Leave in a conspicuous place
on the vehicle or other property damaged a written notice
giving the name and address of the driver and of the owner
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of the vehicle involved and a statement of the circumstances
thereof . . . .”
Even if we assume, as defendant contends, that we should
only consider whether his ultimate flight from the scene is the
act that constituted a violation of section 20002, subdivision (a),
undisputed evidence establishes that he contributed to the
creation of the emergency he sought to prevent by such flight.
He yelled and cursed at the Garcias, evoking their call to the
police, failed to cooperate with Deputy Alvarado’s investigation,
resisted her efforts to open the defendant’s car door, and backed
out of the drive-through lane in defiance of the deputy’s
directions. If he had acted appropriately in the drive-through
lane, cooperated with Deputy Alvarado, and complied with the
deputy’s requests, the peril he believed he needed to avoid by
fleeing the scene would not have arisen. (See Verlinde, supra,
100 Cal.App.4th at p. 1165 [court properly refused to instruct
on necessity defense where the defendant’s “own behavior
substantially contributed to the emergency”]; see also In re
Muhammed C. (2002) 95 Cal. App. 4th 1325, 1330 [person may
not delay a police officer’s investigation by defying the officer’s
lawful directions].)
Accordingly, the court did not err in denying defendant’s
request to instruct the jury on the defense of necessity.
B. Pitchess Review
In Pitchess, our Supreme Court created a mechanism
for criminal defendants to discover relevant evidence contained
in confidential law enforcement personnel records. (Pitchess,
supra, 11 Cal.3d at pp. 536–540; People v. Mooc (2001) 26
Cal. 4th 1216, 1225−1226 (Mooc).) The procedures are now
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codified in Evidence Code sections 1043 through 1047 and
Penal Code sections 832.5, 832.7, and 832.8.
A defendant seeking discovery must file a motion
supported by an affidavit showing good cause for the disclosure
sought. (Mooc, supra, 26 Cal.4th at p. 1226.) If good cause
is shown, the court must conduct an in camera hearing
to determine what information, if any, must be disclosed.
(People v. Gaines (2009) 46 Cal. 4th 172, 179; Evid. Code, § 1043,
subd. (b)(3).)
During the in camera hearing, the custodian of the
personnel records must produce “all ‘potentially relevant’
documents to permit the trial court to examine them for itself.”
(Mooc, supra, 26 Cal.4th at pp. 1228–1229.) The trial court
must review the documents and disclose to the defendant “ ‘such
information [that] is relevant to the subject matter involved in
the pending litigation.’ [Citation.]” (Id. at p. 1226.) To ensure
meaningful appellate review, the trial court must “make a
record of what documents it examined before ruling on the
Pitchess motion.” (Id. at p. 1229.) We review that record to
determine whether the court’s rulings as to the information
disclosed and not disclosed constitute an abuse of discretion.
(People v. Myles (2012) 53 Cal. 4th 1181, 1209 (Myles); People v.
Jackson (1996) 13 Cal. 4th 1164, 1220.)
Here, as noted above, the court held an in camera
hearing to review the personnel records concerning Deputies
Alvarado, Gomez, and Ortiz. As a result of that hearing, the
court ordered that certain information be disclosed to defense
counsel.
In response to defendant’s request, we have reviewed
the sealed record of the in camera hearing and conclude the
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trial court properly conducted the hearing and did not abuse
its discretion in ordering the disclosure of certain information
to defense counsel and declining to disclose other material.
(Myles, supra, 53 Cal.4th at p. 1209; Mooc, supra, 26 Cal.4th
at pp. 1228, 1232.)
C. Retroactive Application of Assembly Bill
No. 1950
As of the date of defendant’s sentencing in November
2019, the maximum probation term for his crime was three
years. (Pen. Code, former § 1203a.) The court placed him
on probation for the maximum term.
In 2020, while defendant’s appeal was pending,
the Legislature enacted Assembly Bill No. 1950 (2019–2020
Reg. Sess.), which amended Penal Code section 1203a to provide
that, subject to an exception not applicable here, the maximum
probation term for a misdemeanor is one year. (Stats. 2020,
ch. 328, § 1, p. 3757.) The amendment became effective
January 1, 2021. (Cal. Const., art. IV, § 8, subd. (c)(1); People v.
Burton (2020) 58 Cal. App. Supp. 5th 1, 12 (Burton).)
Defendant contends that he should receive the benefit
of the new one-year limitation on probation pursuant to
retroactivity principles established under In re Estrada (1965)
63 Cal. 2d 740, and its progeny. We agree.
The question whether the lower term limits for probation
in Assembly Bill No. 1950 should be given retroactive effect
has been addressed in three recent published cases, People v.
Sims (2021) 59 Cal. App. 5th 943, 955–964, People v. Quinn
(2021) 59 Cal. App. 5th 874, 879–885, and Burton, supra, 58
Cal.App.5th Supp. at pp. 12–19. In each case, the court held
that the ameliorative reduction in the maximum length of
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probation should be given retroactive effect and applied to cases
that are not yet final. (People v. Sims, supra, at p. 964; People v.
Quinn, supra, at p. 885; Burton, supra, at pp. 18–19.) We
agree with the reasoning of these cases and likewise hold
that, because defendant’s case is not yet final, Assembly Bill
No. 1950’s reduction of the maximum term of misdemeanor
probation to one year applies to this case.
DISPOSITION
The term of defendant’s probation is reduced from
three years to one year. The trial court is directed to issue
a minute order reflecting this change in the term of probation.
In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
BENDIX, J.
FEDERMAN, J.*
*Judge of the San Luis Obispo County Superior Court,
assigned by the Chief Justice pursuant to article VI, section 6 of
the California Constitution.
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