APPEAL from a judgment of the Superior Court of Los Angeles County, Marcelita V. Haynes, Judge. Affirmed. (Los Angeles County Super. Ct. No. BA322369).
The opinion of the court was delivered by: Manella, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Michael Joseph Singleton, a former police officer, was charged with assaulting an arrestee and filing a false report about the arrest. He was investigated by his employer and gave a compelled statement, after being advised, pursuant to Lybarger v. City of Los Angeles (1985) 40 Cal.3d 822 (Lybarger), that it would not be used against him in a criminal trial. The prosecutor called David Weldon, the person who investigated the incident, to opine whether appellant had control of the arrestee during a portion of the arrest depicted in a video recording. In the published portion of the opinion we conclude that the testimony did not violate the principles articulated in Kastigar v. U.S. (1972) 406 U.S. 441 (Kastigar) regarding the treatment of witnesses exposed to compelled statements. We further find that Weldon was qualified to give the limited expert opinion he provided and that appellant was not denied an opportunity to effectively cross-examine him. We affirm.
On September 4, 2007, an information was filed charging appellant Michael Joseph Singleton in count 1 with assault by a police officer on Jose Bernal (Pen. Code, § 149), and in count 2 with filing a false report (Pen. Code, § 118.1). Appellant pleaded not guilty to the charges. His first trial ended in a mistrial after the jury deadlocked and was unable to reach a verdict, with nine of the jurors having voted to acquit appellant.
Appellant's second trial was also by jury. On June 18, 2008, the jury found appellant guilty as charged. As to count 1, the trial court suspended sentence and placed appellant on formal probation for three years, with the condition that appellant serve 365 days in the county jail. As to count 2, the trial court sentenced appellant to a consecutive term of 180 days in the county jail.
On April 1, 2004, Joseph Densmore became a probationary police officer and trainee with the Maywood Police Department. In early May 2004, appellant replaced another officer as Densmore's field training officer. Shortly after 8:00 p.m. on May 13, 2004, appellant and Densmore were driving in a patrol car when they responded to a disturbance involving Jose Uribe and Jose Bernal.
Regarding the disturbance, Uribe testified that when he arrived at his home in Maywood on May 13, 2004, he found Bernal in an angry state and threatening to hit Uribe's son. When Bernal threw punches at Uribe, Uribe dodged the blows, and punched Bernal. With the assistance of another person, Uribe restrained Bernal until the police arrived. According to Uribe, when the police officers appeared, Bernal was initially calm and cooperative, but became profane and violent after being placed in the patrol car. Bernal had only a slightly swollen cheek when the officers left with him in the patrol car.
Bernal testified that he is five feet nine inches tall, and at the time of the incident weighed 235 pounds. Prior to his encounter with Uribe, he drank "[m]aybe two 40 ouncers" of beer. When he discovered that Uribe's son had disturbed some garbage cans, he went to Uribe's residence to complain. There, Uribe's relative placed him in a chokehold while Uribe repeatedly punched him. According to Bernal, the punches did not cut or injure him. Several police officers arrived, including appellant and Densmore, and arrested Bernal. Bernal became angry when the officers failed to inquire into the misconduct of Uribe's son, and Bernal spat at an officer. He was handcuffed and placed in the rear seat of appellant's and Densmore's patrol car.
The parties stipulated that on May 13, 2004, Uribe placed Bernal under citizen's arrest for battery.*fn2
The key prosecution witnesses to Bernal's journey to the police station were Densmore and Bernal. Densmore testified as follows: After he and appellant arrived at the scene of the disturbance, appellant told him to put Bernal in the back seat of the patrol car. Although Densmore had been instructed in the police academy to restrain arrestees with seatbelts, his initial field training officer told him not to follow this practice, and thus Densmore did not apply seatbelts to Bernal. When Densmore put Bernal in the car, Bernal had only minor facial injuries.
While Bernal sat in the car awaiting its departure, he threatened an officer other than appellant or Densmore. Nonetheless, when the car left, Bernal was quiet. After appellant drove the car approximately one-half mile, he accelerated it and applied the brakes, causing Bernal, who was handcuffed, to slam into a metal screen shielding the officers, who sat in the front seats. Bernal became upset and swore profusely at the officers. Appellant accelerated and braked the car three or four times.
When the car arrived at the police station, appellant drove toward the sally port -- that is, the prisoners' entrance -- and instructed Densmore to get out and grab Bernal, who was then quiet.*fn3 After the car stopped, Densmore and appellant placed their guns in the car's trunk, as they were not permitted to carry guns inside the jail. Appellant and Densmore then approached the passenger side of the car, where Bernal was seated. Densmore was not significantly apprehensive about Bernal, who remained handcuffed.
As Bernal stepped out of the car, appellant grabbed Bernal's arm and pushed him up against the station wall. As appellant did so, he angrily criticized Densmore for failing to grab Bernal. While Densmore continued to stand apart, appellant pulled Bernal toward the jail door at a rapid walking pace. According to Densmore, Bernal appeared to be cooperative.
As the pair approached the jail door, appellant increased his pace, placed his forearm on Bernal's neck, and drove Bernal at a downward angle into a wall. Densmore saw no aggressive conduct by Bernal. After Bernal hit the wall, his head bounced back into appellant, and the pair fell to the ground. According to Densmore, Bernal appeared to be unconscious. While Bernal was in this state, appellant applied a "carotid restraint" chokehold to him for three seconds, and then punched him.
After appellant stopped and stood up, Bernal remained on the ground, inert and bleeding from his ear and nose. Appellant was upset with Densmore, and said to him, "This does not look good. You got to get in there and get your hands dirty." At appellant's direction, Densmore and appellant dragged Bernal into a sitting position against the wall, and appellant called for paramedics. After approximately five minutes, Bernal regained consciousness. During Densmore's testimony, the jury viewed a video recording from a surveillance camera near the sally port, which captured portions of Bernal's arrival at the station preceding -- but not including -- the moment he suffered his injuries.
Bernal testified as follows: As appellant and Densmore drove him to the station, he angrily complained that he should not have been arrested and spat at appellant, but made no threats. However, by the time the car approached the station's sally port, he had calmed down. When the car stopped, Bernal stepped out of the car at appellant's direction. He engaged in no aggressive conduct toward appellant. Despite Bernal's compliance with appellant's instructions, appellant said, "I didn't tell you to step out of the car," and banged Bernal's head against a wall. Appellant then began to move Bernal toward the jail door. Bernal could remember only that he collapsed on the way to the door, and that he later awoke in an ambulance.
The parties stipulated that medical personnel who responded to the incident found that Bernal had a nasal fracture and other injuries to his face and head.
Regarding the events following Bernal's injuries, Densmore testified as follows: When an ambulance transported Bernal to a hospital, appellant accompanied Bernal while Densmore followed the ambulance in their car. Bernal was released from custody at the hospital.
As appellant and Densmore returned from the hospital, appellant asked Densmore, "How are you going to write this report? Because this is your report." When Densmore answered that he intended to describe the incident "exactly how [he] saw it," appellant said, "That's not going to be able to work because we're going to need to justify this force." After Densmore returned to the station, he prepared an accurate incident report. Appellant rejected it and instructed Densmore to use a handwritten description of the incident that appellant provided to Densmore.*fn4 Densmore prepared another draft of the report, which incorporated appellant's description of the incident. According to Densmore, appellant ultimately wrote the final version of the report, which Densmore initialed.
The next day, Densmore sent an e-mail to a supervisor describing appellant's use of excessive force and acknowledging his own falsified report.*fn5 Sometime later, he identified the false statements in his report to Dave Weldon, a private investigator and former police officer hired by the City of Maywood to investigate the incident.*fn6
Maywood Police Department Detective Sergeant Sean Richardson testified that he was shift supervisor on the evening of May 13, 2004. After learning that an arrestee required paramedics, he went to the sally port, where he found Bernal seated next to a wall, with blood on his face and head. When Bernal left in an ambulance, Richardson directed appellant to ride in the ambulance because Bernal had spit at the paramedics and refused medical treatment. Later that evening, Richardson interviewed appellant, who told him that Bernal had struck him with the car's door and then attacked him, leading to a struggle. Appellant prepared and submitted his own use-of-force report, which Richardson approved and initialed. Richardson also approved and initialed the report on the incident submitted by Densmore.
Appellant's use-of-force report stated: "Upon our arrival at the station, I (Michael Singleton) opened the right rear door of the police unit. Bernal quickly jumped out of the vehicle and took an aggressive stance toward me. Bernal planted his feet firmly on the ground about shoulder width apart. Bernal began pulling away from me. Fearing Bernal was attempting to escape, I pulled Bernal toward me and held Bernal against the closest wall. As Officer Densmore and I attempted to escort Bernal to jail, he continued to be very resistant and violent. Bernal began to throw his body weight from side to side in a violent manner, pulling me off balance. Bernal continued to use his body weight to push me off the wall. Bernal began yelling, `You are not going to take me to jail[,] fuckin' pigs.' Bernal then used his left foot to kick me on the left knee. I placed my right arm around Bernal's upper body to maintain control. During the struggle, Bernal lowered his head, opened his mouth, and attempted to bite my right forearm. Bernal then reared his head back and attempted to `Head butt' me in the face. Due to the violent behavior of Bernal and his attempt to injure officers, I placed Bernal in a Dept. approved, academy trained, [sic] carotid restraint. Bernal continued thrashing his body from left to right yelling that he was not going to be arrested. Bernal lunged forward, lost his balance, and fell head first hitting the detectives['] door. Bernal appeared to lose consciousness for approx. 5 seconds. When he regained consciousness, Bernal stopped resisting."
The parties stipulated that at the time of the trial, neither appellant nor Densmore was employed by the Maywood Police Department.
David Weldon testified that he worked as a police officer from 1973 to 1987, when he retired from the Maywood Police Department. During this period, he acquired training and experience in controlling arrestees. Weldon viewed the video recording from the sally port camera and opined that appellant appeared to be in control of Bernal throughout the incident, insofar as it was captured in the video recording. He acknowledged that the video recording was "jerky" and resembled a series of snapshots, and that he could not analyze the events not visible on the video recording.
Appellant testified as follows: he was five feet seven inches tall, and in May 2004 weighed a little over 200 pounds. He estimated that Bernal then weighed between 260 and 265 pounds. According to appellant, Bernal was hostile at the scene of the disturbance at Uribe's residence and during the drive to the police station. Appellant denied accelerating and braking the patrol car while Bernal was in it.
Appellant testified that he ordered Densmore to grab Bernal when they escorted him from the car to the station, but Densmore did not do so. Although appellant directed Bernal to remain in the car, Bernal stepped out and said that he would not go to jail. Appellant grabbed Bernal and pinned him against a nearby wall, then tried to move Bernal to the station's door. He had trouble controlling Bernal, who resisted him. As they approached the door, Bernal attempted to "back-kick" appellant, who placed his right elbow on Bernal's neck to apply a control hold. Bernal then tried to bite appellant's arm and "headbutt" him. As a result, the pair lost their balance, and Bernal's head struck the wall. Appellant denied that he applied a control hold or punched Bernal while they were on the ground. He believed that the video recording did not depict the incident accurately because it omitted significant events.
After appellant and Densmore positioned Bernal against the wall, they tried to revive Bernal and called for medical assistance. When Bernal regained consciousness, he was hostile to police officers and medical personnel, and refused medical attention.
Appellant denied directing Densmore to justify appellant's use of force in Densmore's report. He also testified that he saw no version of Densmore's report describing appellant as having rammed Bernal's head into the station wall. Appellant acknowledged that he gave Densmore a written description of the incident, but denied that he "cut and pasted" portions of Densmore's final report into his own report. According to appellant, after Densmore completed his report, appellant ...