(Super. Ct. No. 09F02258) APPEAL from a judgment of the Superior Court of Sacramento County, Emily E.Vasquez, Judge.
The opinion of the court was delivered by: Nicholson , Acting P. J.
CERTIFIED FOR PUBLICATION
Defendant Richard Eugene Hendrix was convicted of resisting an executive officer by use of force or violence in the performance of his duty in violation of Penal Code section 69. In a separate bench trial, the court found true an alleged prior strike. Defendant was sentenced to six years in state prison.
Defendant's first trial ended in a mistrial when the jury declared it was unable to reach a verdict. Prior to the second trial, the prosecution moved in limine to admit five incidents involving prior encounters defendant had with the police. Over defendant's objection, the trial court in the second trial ruled that evidence concerning two of the prior incidents, in which defendant unlawfully resisted the police, would be admissible. These two prior incidents were admitted into evidence at the second trial through live testimony of some of the police officers who were involved. The second jury returned a guilty verdict.
Defendant contends the trial court committed reversible error in admitting evidence of the two prior incidents of defendant's misconduct. While evidence of uncharged offenses is admissible under the appropriate circumstances, our high court has cautioned that evidence of this kind " 'is so prejudicial that its admission requires extremely careful analysis. [Citations.]' " (People v. Ewoldt (1994) 7 Cal.4th 380, 404 (Ewoldt).) Accordingly, we have carefully analyzed the prior incidents admitted here. We agree with defendant and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
We shall summarize the underlying facts to provide context to the prosecution's offers of proof regarding the uncharged crimes and discuss the trial evidence in more detail, post.
Defendant was charged with violating Penal Code section 69 in that, by use of force and violence, defendant knowingly resisted Luke Mosley, a Sacramento Police officer, in the performance of his duty.
On the night of March 21, 2009, defendant fought a private security guard at an apartment complex. The security guard twice sprayed defendant in the face with pepper spray. He also fired a shot in defendant's direction. Defendant then fled. Later, the Sacramento police and additional security guards arrived on the scene. The police were in dark blue uniforms, the security guards in black uniforms.
After the police arrived, defendant was spotted near a garbage enclosure area. He was intoxicated. Defendant exited the enclosure and began pacing back and forth and yelling incoherent gibberish. Instead of complying with the officers' commands to get on the ground, defendant looked in the direction of the officers and fled. Taking different routes, the police and the security guards chased after defendant. During his flight, defendant either tripped or ran into a parked vehicle and Officer Mosley ran into him. Other police officers caught up to him and, while Officer Mosley attempted to detain defendant, defendant used force against Officer Mosley. None of the officers could remember whether they had identified themselves as police during the encounter.
There was no question that defendant resisted. Defendant contended the proof failed to establish beyond a reasonable doubt that he knew the person he resisted was a police officer. Defendant asserted that, because he had been pepper-sprayed earlier, was intoxicated and the lighting was not good, he might have confused Officer Mosley for a security officer.
II. In Limine Motion Concerning the Prior Offenses
The prosecutor sought admission of evidence concerning five prior incidents involving defendant's encounters with the police under Evidence Code section 1101, subdivision (b).*fn1 These incidents were labeled 4a through e. The trial court's ruling allowing evidence concerning two of the five incidents was based on the prosecutor's proffer in the in limine briefing.
The two incidents admitted by the trial court, after some redaction, were described in the prosecution's in limine brief as follows:
"b. On May 25, 2005, security guards witnessed domestic violence occurring between Corvette Hendrix, the Defendant's sister, and her boyfriend. The Defendant then got involved. SPD Officer Mueller attempted to detain him, but he violently resisted. When he was being transported to jail, he repeatedly threatened the [sic] SPD Officer Wycinski who was driving. He asserted that he would look up the officer's address on the [I]nternet, and come 'get him.' At the station, he yelled, 'You better change your beat.' [¶] . . . [¶]
"e. On September 18, 1993, Alameda Police Officer Simmons responded to reports of an intoxicated person causing a disturbance. He contacted the Defendant, who was displaying objective signs of intoxication. The Defendant passively resisted as Officer Simmons placed handcuffs on him. The Defendant tried to wriggle out of the officer's hold as they walked to the police car. He then refused to get into the vehicle. He kicked at another officer who was trying to assist. Once placed in the car, he lied [sic] on his back and moved his hands to the front of his body. He kicked the patrol [car] door. Officer Simmons removed the Defendant from the patrol car, and the Defendant started to struggle again. The deputies placed him back in the patrol car, this time with a hobble, but the Defendant ripped it from his feet. When Officer Simmons tried to replace it, the Defendant spit in his face. The Defendant was finally transported to a holding cell. He hit, kicked and tried to ram the door with his body. He also tried to cover the camera in the cell."
The incidents the trial court excluded were described as follows:
"a. On June 7, 2006, the Defendant was contacted at Franklin Villa Apartments, and taken into custody for an outstanding warrant. SPD Officer Pinola placed him in the rear of a patrol vehicle. The Defendant then proceeded to kick the patrol vehicle window, pushing the window outside of the door frame.
"c. [A]fter the Defendant was booked [for the incident described in "b"] Deputy Reeve was informed that the Defendant kicked the holding cell door. When the deputy entered the cell to remove the Defendant, the latter took a bladed stance. With the assistance if [sic] Deputy Nelson, Deputy Reeve placed the Defendant into a control hold to escort him to a sobering cell. The Defendant called the deputies cowards. When they arrived at the holding cell, he failed to comply with directives, physically struggled with the deputies, and threatened to 'kick their asses.' As Deputy Wade tried to leave the cell, the Defendant physically assaulted him, choking and scratching him.
"d. On January 1, 1999, SSD Deputies Morris and Maxwell responded to a domestic violence call. When they arrived, they heard glass breaking down the street. They ran toward the sound, and observed the Defendant standing in front of an apartment with a golf club in his hand. There was broken glass on the ground. They detained the defendant, and placed him in the back of their patrol vehicle. The Defendant started threatening to kill them. He said he was a 29th Street Crip, and would kill any officers who came into G Parkway. He kicked the rear window of the patrol vehicle 10-15 times as he continued to threaten and spit at the deputies."
In the in limine briefing, the prosecution contended that, under section 1101, subdivision (b), these prior incidents were "admissible to establish that the Defendant knew that Officer Mosely [sic] was a police officer who was performing his duty. The evidence is particularly important in this case as the Defendant asserts that he did not know he was being pursued by police officers." The prosecution further sought to introduce the prior incidents "for the purpose of rebutting any implication of mistake of fact or self defense."
The prosecution supplemented its theory of admissibility at oral argument on the motion: "I think that given the fact that the defendant has had interactions -- intimate interactions with law enforcement reaching back into the early [1990's] and that he has dealt with them in an aggressive and resistant manner despite knowing they were officers in each instance speaks to his knowledge in this case, just like a drug case showing that someone has dealt with narcotics before and has suffered some kind of arrest or conviction, it's analogous to this situation. [¶] [T]he fact that the defendant has acted in this manner with officers in the past goes to the fact that he had full knowledge that they were officers he was dealing with in this case." (Italics added.)
Defense counsel objected to the admissibility of all the prior incidents. He challenged the 1993 incident on remoteness grounds. As for the prosecution's knowledge theory, defense counsel acknowledged that the defense he was prepared to advance would put the element of knowledge in active dispute but argued, "The fact that [defendant has] dealt with the police in the past I don't believe makes him unique compared to 100 percent of the population in our community who know what a police officer uniform means. It means a person wearing it is a police officer. [¶] . . . I don't think that there needs to be any particularized showing based on prior contact with police that he knows that such a thing as police officers exist . . . . [¶] The question is, did he know on this particular instance that he was dealing with the police, and I don't believe these incidences help show that because in this particular instance his first encounters were with an armed security guard in a uniform with badges, with a gun, with a car with spotlights, and then he was pepper sprayed twice in the eyes by that security guard. [¶] And I think it's a fair inference my client couldn't see very well, because the security guard had a hard time seeing from the minimal amount of pepper spray he got in his eyes. So the question is, is his knowledge in the particular cases that he's dealing with police officers aided by the introduction of these past incidents. I propose that it's not aided and I think that the danger is these incidents showing [a] propensity toward having assaults or fights with police officers. . . . I believe they are likely improper propensity evidence and also more prejudicial than probative."
The prosecution countered the remoteness contention arguing, "whether he gained the knowledge in '93 or he gained the knowledge five years ago, it's knowledge that he has." The prosecution further argued that "the fact [defendant] has had multiple intimate engaged contacts with the officers over the years gives him an intimate knowledge and familiarity with officers that a lot of us don't have. Sure, we can all look at a uniform and recognize a person as an officer, but he's gone through multiple experiences where officers have responded to a scene where they've given commands, where they've handled him in physical ways, a lot of things that a lot of us haven't experienced that should have alerted him to the fact that these were officers in addition to the uniform, and the patrol vehicles." With respect to rebutting a mistake of fact theory, the prosecution contended that defendant's "underlying assertion would be the defendant wouldn't have acted the way he did if he knew these were police officers he's dealing with. And this information, this evidence of his prior conduct, goes directly to that question and is extremely probative."
Defense counsel rejoined, "I . . . want to make clear that I'm not arguing my client would have acted differently if he knew these were security guards versus law enforcement officers. My argument in that regard would be they have to prove that he knew these were officers in the lawful performance of their duties. And if they don't prove that, then that's a defense."
After hearing further argument, the court excluded the incidents described as incidents "a", "c" and "d," finding that evidence "not very probative to this case" and "much more prejudicial than probative."
The trial court, however, granted the motion with respect to incidents "b" and "e," the 2005 and 1993 incidents, allowing those incidents for the limited purpose of showing knowledge and to rebut mistake of fact.
The trial court explained that these incidents "demonstrate that [defendant] has knowledge that he knows what a police officer does in terms of an arrest. That he knows when someone -- a police officer tries to arrest you, what they do when law enforcement takes someone into custody. And I find that this does go to the issue of knowledge, which is an element that the People have to prove beyond a reasonable doubt." With respect to mistake of fact, the court stated, "on these particular facts the knowledge and the mistake of fact [are] very closely intertwined."
The trial court specifically ruled that the evidence it was allowing was "more probative than prejudicial" and that the probative value "outweighs any probability that its admission will necessitate undue consumption of time" or "confuse the issues or mislead the jury." The court stated it would give the appropriate limiting instruction.
While the trial court permitted evidence of the 2005 and 1993 incidents, it also limited the admissible scope of these incidents. As to the 1993 incident, the trial court precluded admission of defendant's post-arrest conduct that he "may have engaged in in the holding cell and in the patrol car." The court permitted evidence up to the point in the proffer of: "He kicked at another officer who was trying to assist" as they attempted to place defendant in a patrol car.
As to the 2005 incident, the court initially did not exclude any of the post-arrest events and behavior of defendant. The court allowed evidence of the threats defendant made against the officer while being transported to the jail, including that defendant would look up the officer's address on the Internet and come "get him." Also, by its initial ruling, the court allowed the threat defendant made to the transporting officer after their arrival at the jail, "You better change your beat." The trial court did not elaborate on the reasoning underlying this ruling. The following morning, the trial court precluded the threat defendant made at the jail, finding that it was not relevant or probative, because the threat was made at the jail.
Several days later, the prosecution indicated a desire to introduce evidence concerning defendant's refusal to give his name to the officer who transported and booked him during the 2005 incident. The prosecutor advanced no theory of relevance as to this testimony and only indicated defendant's refusal was not an invocation of his Miranda*fn2 rights. The court sustained defendant's objection to that evidence, saying ". . . it's just not probative to knowledge. It's not probative to . . . the elements that are charged in this case, and the court is already allowing you to bring in the threats and violence with respect to that incident which are relevant, material, and probative, more probative than prejudicial. And I just don't want the jury to get confused as to all this other minutia, which is not really probative at all. So for that reason, it is excluded." Again, the trial court did not elaborate as to why the threats defendant made during transport from the scene in the 2005 incident were "relevant, material, and probative"; nor did it elaborate upon defendant's undue prejudice objection. Thereafter, evidence of the 2005 incident was presented to the jury.
On the following day of trial, just before testimony concerning the 1993 incident, counsel for defendant sought further clarification on the evidence the jury would hear. Counsel's concern focused on defendant's post-arrest threats and other conduct in the police car and at the jail. The trial court allowed argument to be reopened on this evidence. The prosecution argued that evidence concerning defendant's conduct inside of the patrol car and at the jail was similar to the evidence in this case and the evidence that had already been introduced on the 2005 incident. The trial court reiterated its earlier ruling precluding the post-arrest conduct in the 1993 incident. In doing so, the trial court specifically noted that it did not find defendant's post-arrest conduct to be "anywhere as probative" as the conduct leading up to his being put into the patrol car.
On the evening of March 21, 2009, Justin McCall was on duty as a private security guard at the Countrywood Apartments (Countrywood) in Sacramento. He was dressed in a black uniform with shoulder patches that depicted an American eagle and lettering that read "American Private Security." He had a badge on his left chest. He also wore a utility belt and carried pepper spray and a gun.
McCall testified that he had had training required by the Bureau of Security, which included the "power to arrest," weapons, how to use pepper spray and a baton. He explained that the Countrywood complex was regarded as "high priority" by the Sacramento Police Department and had a "lot of issues with domestic violence, drugs, fights, shootings." McCall worked with "POP officers pretty much all of the time." "POP" stands for "problem-oriented policing." There is a special team of Sacramento POP officers assigned to the Countrywood complex.
In light of the criminal activity at Countrywood, the complex had a "no loitering" rule that applied to common areas, including the parking lot. Multiple anti-loitering signs were posted on the grounds, residents were notified of the rule by flyers, and the no loitering rule was included in the lease agreements for the residents of the complex.
At approximately 8:00 p.m., McCall was on patrol in the complex in his marked security vehicle. He observed an individual sitting inside a parked car in the parking lot. McCall continued to drive and circled back a minute or two later. The person was still inside the parked car. McCall aimed his vehicle's lights into the parked car. The person sitting inside, whom McCall identified as defendant, exited and began screaming and cussing. McCall recognized defendant. On six to eight prior occasions, without incident, McCall had asked defendant to leave the complex's parking lot where defendant had been loitering.
With McCall's lights aimed at him, defendant proclaimed that McCall was "doing too much" and approached McCall's vehicle. Defendant threatened that he was "going to kick [McCall's] ass." McCall warned defendant several times to return to his car and leave the property or to go inside his apartment. Defendant did not comply and continued to swear and scream. Defendant balled up his fists, swung his arms around, and acted very upset.
McCall got out of his vehicle. He advised defendant once again to get inside his car and leave the property or to go inside his residence. Defendant walked toward McCall and threw a shoulder into McCall's chest. McCall pushed defendant back and sprayed defendant in the face with pepper spray from about three feet away. The spray hit defendant in the eyes. Defendant immediately "grabbed his eyes," and then walked away, rubbing them. Because it was windy, "a little" pepper spray went into McCall's eyes. McCall could still see, but his vision was impaired and his eyes watered. McCall radioed his security company for backup and then walked around the complex to locate defendant. McCall explained that he usually called for backup security officers to assist when detaining people.
McCall spotted defendant near the complex's swimming pool. Defendant was rubbing his eyes and walking around swearing. When defendant noticed McCall, defendant began running toward McCall, stating that he "was going to kick [McCall's] ass." Defendant was probably more than 30 yards away from McCall when he started toward him. McCall ordered defendant to stop and get on the ground.
Defendant continued to run toward McCall and jumped in the air to kick McCall. Defendant then swung and hit McCall in the chin. In response, McCall punched defendant and then grabbed defendant and threw him back. McCall sprayed defendant with pepper spray from five to six feet away. McCall was not sure if the pepper spray got into defendant's eyes, but he did spray defendant in the face. McCall again got some in his own eyes -- this time more than the first time he sprayed defendant. Defendant came at McCall again and the two started fighting. McCall grabbed defendant and threw him back. Defendant got up, stated he was going to kill McCall, and reached behind his back. It appeared to McCall that defendant had something in his hand, but he was unsure because the pepper spray was impairing his vision. McCall feared for his life, so he drew his gun and fired a shot in defendant's direction. Defendant fled.
A resident assisted McCall to a restroom, where McCall washed his eyes. Approximately five minutes later, McCall's backup security guard arrived, also in uniform. Initially, McCall and the backup security guard began searching the complex for defendant, but they eventually stopped and decided to wait for the police. According to McCall, the police arrived two to three minutes later.
Around 9:00 p.m., Sacramento Police Officers Luke Mosley, Lisa Khang and Gerald Landberg responded to Countrywood on a call of assault in progress. The officers arrived in marked police cars and were wearing their full police uniforms, described as a "navy blue uniform with a . . . marked badge, waist duty belt equipped with [a] gun . . . handcuffs, name, badge." However, the record does not reflect whether the officers were in short sleeves, long sleeves, or coats. The emergency lights on their vehicles were not flashing and their sirens were not on when they arrived.
The police talked with McCall and discussed what had transpired. As the police and McCall walked the grounds, McCall spotted defendant, now shirtless, walking out of an "apartment complex," heading toward a dumpster enclosure area. Defendant was 40 to 50 feet away. While not mentioned during the testimony of Officer Mosley or Officer Khang, Officer Landberg observed that defendant was carrying something in his arms. Landberg thought defendant was going to throw something away. McCall identified defendant as his attacker. To avoid further conflict with defendant, Officer Mosley instructed McCall not to go any farther.
The three police officers -- Mosley, Khang, and Landberg -- approached the dumpster enclosure area.*fn3 Although it was dark out and the enclosure did not have an overhead light, the area was well lit from surrounding sources. None of the officers testified that defendant looked in their direction as he walked toward the dumpster area. As the officers moved closer to the enclosure, they heard a bang or crash-boom noise coming from inside. Officer Landberg thought it was the sound of something being thrown into the dumpster. The officers drew their firearms, fanned out in triangulated positions, and requested defendant to come out. Defendant exited the dumpster enclosure area. He appeared extremely agitated and sweaty. Defendant paced back and forth in circles in front of the enclosure's opening, flailed his arms, stuck out his chest, and yelled incoherent gibberish. The yelling was random and not directed at the officers. According to Officer Mosley, as defendant paced in circles, there were times when defendant was not looking in the direction of the officers. Khang testified similarly, saying while defendant paced, he looked at the officers, but also looked away. The officers commanded defendant to stop what he was doing and get down on the ground. Defendant did not comply. The officers were approximately 10 to 20 feet away from defendant at this point. According to the officers, defendant was not rubbing his eyes and there was no apparent indication that he had a problem seeing. Officer Mosley testified that defendant stopped pacing, looked at the officers "for a couple of seconds," said "Fuck y'all," and started running.
According to Officer Mosley, defendant paced for a period of approximately 30 seconds before running. Officer Khang approximated "a couple of seconds." Unlike Officers Mosley and Khang, Officer Landberg testified that when defendant stopped pacing, he turned in the direction of the officers and assumed a fighting stance, with one leg behind the other and his hands raised up to his chest area, and stared at the officers for five to seven seconds while in this stance. According to Landberg, defendant continued to yell at the officers at that time. Then defendant said "fuck y'all" and fled.
The police officers gave chase. Officer Mosley, followed by Officer Khang, ran behind defendant, while Officer Landberg broke off and took a parallel route, hoping to cut defendant off. McCall and the other security guard also chased after defendant, taking a different path than the officers.
Officer Mosley testified that he was directly behind defendant and observed defendant trip over a planter and fall to the ground. After defendant fell, he started to rise. Officer Mosley closed the gap within a matter of seconds, and while still running, he ordered defendant to stay down on the ground. Mosley was approximately 10 feet from defendant at this point. According to Officer Mosley, defendant continued to rise, "looked right at" Mosley and took a bladed stance, which Mosley described as "a boxer's stance, kind of one foot back, stable platform, kind of shoulder width apart, just preparing yourself to get into some kind of confrontation." While he was still running toward defendant, Mosley decided he did not want to let defendant "get fully set up and engaged and ready to fight." Before defendant could raise his hands in an aggressive manner, Mosley ran full speed at defendant and knocked him into a parked car. Mosley attempted a "control hold" on defendant's right arm. According to Officer Mosley, the chase lasted less than a minute, and only a matter of "[s]econds" elapsed between defendant getting up after tripping and Mosley tackling him. Mosley said the lighting in area where he collided into defendant was similar to the lighting in the area of the dumpster. He described this area as "pretty well lit up."
During the struggle, Officer Mosley detected a strong odor of alcohol coming from defendant and noticed that defendant had bloodshot and watery eyes. According to Mosley, defendant was "obviously under the influence." Officer Mosley testified that "[a]lmost instantly" after he made contact with defendant, defendant grabbed Officer Mosley's neck and squeezed it, causing shortness of breath. Officer Mosley clamped down on defendant's hand and pulled it away. It was at that point, according to Officer Mosley, that Officer Landberg arrived and, from behind, grabbed defendant around the ankles. Defendant fell to the ground, landed on his back, and then kept his arms rigid or locked. Officers Mosley and Landberg rolled defendant on his stomach. Officer Khang then arrived and assisted the officers in cuffing defendant. Defendant was strong and the officers had to use substantial force to get him cuffed.
Officer Khang was unavailable to testify at the second trial, but her testimony from the first trial was read to the second jury. Her testimony differed from Mosley's as to what occurred when Mosley caught up to defendant. Officer Khang ran behind Officer Mosley. When Officer Mosley dropped his handgun, Officer Khang stopped to retrieve it, causing Officer Khang to fall about six parking stalls or "thirty or so feet" behind during the pursuit. Officer Khang resumed the chase after retrieving the gun and observed defendant "turn his head around" as he was running. Defendant then ran into a parked minivan. Officer Mosley collided into defendant and the van, wrapping his arms around defendant's upper body in a bear hug. At that point, Officer Khang was "a little closer" than the six parking stalls she had fallen behind when she picked up Officer Mosley's gun. After Officer Mosley wrapped his arms around defendant, the two of them then "did a kind of 360 while they were still standing." Officer Landberg arrived and while Mosley still had his arms around defendant, Landberg pulled defendant's legs out from under him. All three then went to the ground. Officer Khang stated that she was still running toward the three ...