IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
December 16, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
JOSE FIDEL NUNES, JR., DEFENDANT AND APPELLANT.
(Super. Ct. Nos. CM031016 & CM031843)
The opinion of the court was delivered by: Duarte , J.
P. v. Nunes
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant was charged with resisting a police officer in the performance of his duty (Pen. Code,*fn1 § 69) and the allegations that he committed the offense while released on his own recognizance (§ 12022.1) and had a strike prior (§§ 667, subds. (b)-(i), 1170.12).
The trial court denied defendant's motion to suppress (§ 1538.5) as well as his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Evidence Code sections 1043 to 1047. After a bench trial, the trial court convicted defendant of violating section 69 and found the enhancement allegations to be true.
Sentenced to state prison for an aggregate term of nine years, defendant appeals. Defendant contends that the trial court erroneously denied his Pitchess motion without conducting an in camera hearing. The People concede error. Because we agree with the parties that the trial court erred, we shall remand for an in camera review.
FACTUAL AND PROCEDURAL HISTORY*fn2
Shortly after midnight on December 25, 2009, Butte County Sheriff's Deputy Derek Ament received a call from dispatch that there had been a call to 911 from a cell phone, but the caller had hung up. Dispatch could not give a precise location for the origination of the call, but gave a general area which was within seven miles of Ament's location. Driving toward the area, Ament saw a car stopped on the northbound off-ramp of Highway 70 to Garden Drive. No other traffic was on the road. Ament drove to the car and shined a spotlight into it. A woman was the driver; a man (later identified as defendant) was in the passenger seat. The woman drove northbound on the ramp to the highway. The deputy activated his overhead lights and stopped the car.
The woman claimed she had called 411, not 911. She identified herself as Guadiana Hedrick. Defendant identified himself as Joseph Allen. Dispatch could not match either name but discovered the car was registered to Shyla Guadiana-Hedrick, who had secured a criminal protective order for domestic violence against "Jose Nunes."
Ament confronted the driver with her true name and she admitted it. Ament saw that defendant had "Nunes" tattooed on his neck and dispatch confirmed Jose Nunes had a similar tattoo as well as others which Ament could see. Ament informed defendant that he was under arrest for violating the protective order. Defendant denied that he was Jose Nunes and tried to flee. Ament and Deputy Cornelius gave chase. Cornelius used his Taser during the chase, but it failed to incapacitate defendant. When Ament caught up to Cornelius and defendant, the two were physically struggling near the bike lane of the highway. Defendant hit Cornelius with his elbows and knees. As the two struggled, they entered a lane of traffic; Ament pulled them back. Defendant pulled both deputies towards the highway, where traffic was passing at a high rate of speed, and threw punches at them. Ament fired his Taser at defendant but it had no effect. Defendant ran away from the two deputies.
Finally, a police dog controlled by a third deputy contacted defendant and he fell onto the ground with his arms underneath him (signaling the possible concealment of a weapon). Cornelius struck defendant three or four times on the back of his head and shoulder with his flashlight. The third deputy struck defendant on the back multiple times with his flashlight. The back of defendant's head was bleeding.
The charging document alleged that defendant "unlawfully attempt[ed] by means of threats and violence to deter and prevent Deputy Cornelius and/or Deputy Ament, who was then and there an executive officer, from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of their duty."
Defendant sought the personnel records of the police officers that arrested him pursuant to Pitchess and Evidence Code sections 1043 to 1047. He sought citizen complaints and other information related to "any use of unnecessary force or violence, illegal or false arrest, improper or illegal tactics, dishonesty, false imprisonment, false police reports, and/or illegal search and seizure."
In support of defendant's motion, defense counsel presented his declaration that set forth a different set of facts than those presented in the police reports (and subsequently at trial). The declaration stated: "Deputy Ament approached the illegally detained occupants of the illegally detained vehicle and illegally demanded from them information. Deputy Ament illegally ordered defendant, Mr. Nunes, to exit the vehicle. Deputy Ament attempted to illegally arrest and illegally place handcuffs on Mr. Nunes, and in the process he illegally, unlawfully and excessively physically assaulted Mr. Nunes. Deputy Cornelius, Deputy Ennes, and Deputy 'Justus' subsequently assisted Deputy Ament in the application of illegal, unlawful, and excessive force, which included 'elbow strikes,' 'vascular neck restraint' (i.e., choke-hold), 'multiple baton strikes,' beating him with a flashlight (including twice pounding him on the head), electrocuting him with Tasers, and, in the case of Deputy 'Justus,' mauling him with teeth, which resulted in 'multiple punctures.' It is the claim of these various officers that this illegal, unlawful, and excessive force was applied because Mr. Nunes resisted Deputy Ament's commands and attempts to place him under arrest, and the subsequent commands and attempts to place him under arrest by deputies Cornelius, Ennes, and 'Justus' . . . Mr. Nunes and I deny the accusations of resisting and assaulting against Mr. Nunes presented in the police reports.
"[¶] . . . . [¶] The truth of what occurred, and what counsel will present as Mr. Nunes' [sic] defense at trial, is that Mr. Nunes did not physically resist Deputy Ament's illegal attempt to take him into custody until he himself was physically assaulted, and that Officer Ament, and later Deputy Cornelius, Deputy Ennes, and Deputy 'Justus' used upon Mr. Nunes excessive force without reasonable justification, force so severe that it required Mr. Nunes to be admitted to the hospital, and, to cover these offenses, these officers fabricated the PC § 69 charge against Mr. Nunes."
The trial court denied the motion without hearing, reasoning that "if the defendant was subject to arrest before the officer used force, the officers have the right to use force to effect a lawful arrest, that is for violating the restraining order [a]nd the defendant had the duty to submit to that arrest." The court further determined, "In order for you to establish the factual scenario that would support the Pitchess motion, you would have to submit a declaration that said the officer was wrong about that restraining-order situation . . . [¶] You'll have to say there was no restraining order."
The court found that defendant was not entitled to disclosure "where there is a sufficient basis in fact for conviction of the [section] 69 outside the existence of any force used by either the officers or the defendant." The court noted that "with a [section] 69 that could be premised on refus[al] to submit to lawful arrest that's alleged here, then that's the different situation to which [defense counsel] [did not] propose any defense or defenses to the pending charge."
Defense counsel argued that he did propose a defense--defendant may have committed a lesser included offense of "a simple [section] 148 rather than a [section] 69" because he "may have resisted, but did not do it in such a fashion as to make him guilty of the [section] 69." In denying the Pitchess motion, the court concluded that defendant had not "set forth a plausible factual scenario that proposes a defense to the charge of resisting arrest by failing to submit to arrest."
Defendant contends the trial court erred in denying his Pitchess motion without holding an in camera hearing, claiming that he alleged that the officers used excessive force--a valid defense to the charge of resisting an officer through threats or force. The People concede that defendant showed good cause for discovery of the relevant records as would be provided for by way of an in camera hearing. We agree with the parties.
We review the ruling for abuse of discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.)
"To initiate discovery, the defendant must file a motion supported by affidavits showing 'good cause for the discovery,' first by demonstrating the materiality of the information to the pending litigation, and second by 'stating upon reasonable belief' that the police agency has the records or information at issue. [Citation.] This two-part showing of good cause is a 'relatively low threshold for discovery.' [Citation.]" (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1019 (Warrick).)
"To show good cause as required by section 1043, defense counsel's declaration in support of a Pitchess motion must propose a defense or defenses to the pending charges. The declaration must articulate how the discovery sought may lead to relevant evidence or may itself be admissible direct or impeachment evidence . . . . [¶] Counsel's affidavit must also describe a factual scenario supporting the claimed officer misconduct. That factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. . . . [¶] . . . What the defendant must present is a specific factual scenario of officer misconduct that is plausible when read in light of the pertinent documents. [Citations.] [¶] A Pitchess motion need not, however, provide a motive for the alleged officer misconduct." (Warrick, supra, 35 Cal.4th at pp. 1024-1025.) "The trial court does not determine whether a defendant's version of events, with or without corroborating collateral evidence, is persuasive -- a task that in many cases would be tantamount to determining whether the defendant is probably innocent or probably guilty. [Citation.]" (Id. at p. 1026.)
"We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. . . . [¶] To determine whether the defendant has established good cause for in-chambers review of an officer's personnel records, the trial court looks to whether the defendant has established the materiality of the requested information to the pending litigation. The court does that through the following inquiry: Has the defense shown a logical connection between the charges and the proposed defense? Is the defense request for Pitchess discovery factually specific and tailored to support its claim of officer misconduct? Will the requested Pitchess discovery support the proposed defense, or is it likely to lead to information that would support the proposed defense? Under what theory would the requested information be admissible at trial? If defense counsel's affidavit in support of the Pitchess motion adequately responds to these questions, and states 'upon reasonable belief that the governmental agency identified has the records or information from the records' [citation], then the defendant has shown good cause for discovery and in-chambers review of potentially relevant personnel records of the police officer accused of misconduct against the defendant." (Warrick, supra, 35 Cal.4th at pp. 1026-1027.)
"Section 69 '"sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty."' [Citations.] Those two ways of violating section 69 have been called '"attempting to deter"' and '"actually resisting an officer."' [Citations.] The first type of offense can be established by '"[a] threat, unaccompanied by any physical force"' and may involve either an officer's immediate or future performance of his duty. [Citations.] The second category involves '"force or violence"' by the defendant against an officer engaged in his duties at the time of the defendant's resistance. [Citation.]" (People v. Carrasco (2008) 163 Cal.App.4th 978, 984-985 (Carrasco); In re Manual G. (1997) 16 Cal.4th 805, 814.)
Here, as is customary, the information was drafted to allege both categories/theories. At the time of the Pitchess motion, the People had not yet elected on which category to base their prosecution.*fn3 "[S]section 148, subdivision (a) is a lesser included offense to section 69's second prong." (Carrasco, supra, 163 Cal.App.4th at p. 985; People v. Lacefield (2007) 157 Cal.App.4th 249, 259; but see People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533; People v. Belmares (2003) 106 Cal.App.4th 19, 26.)
"[A]n officer may lawfully use only reasonable force to make an arrest or to overcome resistance." (People v. Curtis (1969) 70 Cal.2d 347, 357 (Curtis); §§ 835, 835a; CALCRIM No. 2670; see People v. Sons (2008) 164 Cal.App.4th 90, 102-103 (Sons).) A person being arrested may use reasonable force to defend against excessive force. (Curtis, supra, 70 Cal.2d at p. 357; §§ 692, 693; Sons, supra, 164 Cal.App.4th at p. 103; CALCRIM No. 2652 ["A peace officer is not lawfully performing his or her duties if he is (. . . using unreasonable or excessive force in his or her duties"]; CALCRIM No. 2670.)
In City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, the defendant was charged with resisting arrest (§ 148) and exhibiting a knife. The defendant asserted the arresting officers used excessive force. His Pitchess motion for discovery of complaints of excessive force against the arresting officers was supported by police reports and a declaration from counsel. The police reports indicated that when the defendant resisted arrest, one of the officers struck him with his fist and wrestled him to the ground. The declaration alleged that the officers handcuffed the defendant, grabbed him by the hair, threw him to the ground, and stepped on his head, thereby using excessive force. (City of Santa Cruz, supra, 49 Cal.3d at pp. 78-79.)
The court found the defendant made a showing of good cause by setting forth a "specific factual scenario" to support his assertion that the officer used excessive force so that the arrest was illegal and improper. (City of Santa Cruz, supra, 49 Cal.3d at p. 85; see also Uybungco v. Superior Court (2008) 163 Cal.App.4th 1043.)
Here, defendant successfully alleged the requisite specific scenario of officer misconduct establishing a plausible basis for discovering admissible evidence. According to defense counsel's declaration, defendant denied the accusation that he resisted the commands and attempts to arrest him and that defendant did not "resist" until he was physically assaulted and the officers used excessive force, including elbow strikes, choke holds, baton strikes, beating with a flashlight, electrocution with Tasers, and dog mauling. Similar to the defendant in City of Santa Cruz, defendant proposed a defense of excessive force to the charge of resisting an officer (§ 69).
Good cause was clearly shown. The trial court abused its discretion in denying defendant's Pitchess motion without an in camera review. We reverse and remand with directions.
The judgment is reversed and the cause is remanded with directions to the trial court to conduct an in camera inspection of the requested personnel records consistent with this opinion. If the trial court's inspection on remand reveals relevant information exists and should be disclosed, the court shall order disclosure, allow defendant an opportunity to demonstrate prejudice, and order a new trial if there is a reasonable probability the outcome would have been different had the information been disclosed. If the trial court's inspection on remand reveals no relevant information, the court shall reinstate the judgment of conviction and sentence.
We concur: BLEASE , Acting P. J. NICHOLSON , J.