Filed 4/10/13 P. v. Rock CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
 California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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                                     or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                       E054255

v.                                                                       (Super.Ct.No. FVA901525)

JACOB AARON ROCK,                                                        OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,

Judge. Affirmed.

         Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and Susan

Miller, Deputy Attorneys General, for Plaintiff and Respondent.




                                                             1
                                     I. INTRODUCTION

        In this case, the prosecution and the defense presented radically different versions

of the events that occurred at a party in Fontana in August 2009. It appears the jury

generally accepted the defense version, finding defendant Jacob Aaron Rock guilty only

of a lesser misdemeanor offense of assault on a police officer (Pen. Code, § 241,1 subd.

(c)) rather than the charge of assault on a police officer with a deadly weapon (§ 245,

subd. (c)) in count 1, found not true the allegation of great bodily injury as to that count

(§ 12022.7), and voted 11 to 1 and 10 to 2 in favor of acquittal on two additional counts

of resisting executive officers (§ 69).2 Defendant contends the trial court erred in

refusing to instruct the jury with his requested instruction on willful destruction of

evidence. We agree that the trial court abused its discretion by failing to impose an

appropriate sanction in the event the jury made a factual finding of willful destruction of

evidence; however, we find the error harmless, and we affirm.

        Defendant Jacob Aaron Rock appeals from his conviction of misdemeanor assault

on Police Officer Shane McCoy (§ 241, subd. (c)) as a lesser included offense to the

charge of assault on a police officer with a deadly weapon (§ 245, subd. (c)).3 Defendant



        1   All further statutory references are to the Penal Code.

        2   The trial court dismissed those counts on the People‟s motion under section
1385.

        3
        The jury found not true the allegation that defendant inflicted great bodily injury
(§ 12022.7) was hung on two additional counts of resisting executive Officers McCoy
and Buddy Porch (§ 69). The jury votes on those counts were 11 to 1 and 10 to 2 in favor
                                                                      [footnote continued on next page]

                                                2
contends the trial court erred in refusing to instruct the jury with a requested instruction

on willful destruction of evidence. Although we agree the trial court failed to instruct the

jury properly on willful destruction of evidence, we find the error harmless and we

therefore affirm.

                       II. FACTS AND PROCEDURAL BACKGROUND

        A. Prosecution Evidence

        About 1:00 a.m. on August 30, 2009, Fontana Police Officers Martin Diaz and

Ancona were dispatched to a residence in Fontana in response to a “loud noise party

call.” The property contained corrals and several outbuildings in addition to the

residence. When they arrived, Officer Diaz heard loud music and he heard a woman

scream, “Help.” They saw 400 to 500 people at the party, many of whom were wearing

baggy clothes and appeared to be intoxicated. Officer Diaz saw two men who were

bleeding from their faces, and he saw one of the men punch the other. He assumed

everyone was armed. He yelled, “„Police. Party‟s over. Everybody needs to go home.‟”

People started running in every direction, and some guests began yelling profanities at the

officers. A group of people surrounded the officers and backed them up against a wall.

Officer Diaz radioed in a request for emergency assistance. Bottles, cans, and rocks were

thrown at the officers, and Officer Diaz was hit in the chest with a full beer bottle. He




[footnote continued from previous page]
of acquittal, and the trial court dismissed those counts on the People‟s motion under
section 1385.

                                              3
drew his gun and arrested the person who had thrown the bottle. He never had any

contact with defendant.

      Officer Shane McCoy arrived in response to the request for assistance. He

estimated there were “at least 200 people” at the party. He could hear Officer Diaz

yelling “get back” and “stop resisting.” As Officer McCoy pushed his way through the

crowd to get to Officers Diaz and Ancona, a man pushed him, and Officer McCoy struck

the man in the face with his elbow, causing the man to fall down. Officer McCoy parted

the crowd a little, and he saw Officers Diaz and Ancona struggling with a subject on the

ground while a group of men surrounded the officers and advanced on them; some were

throwing beer bottles.

      Officer McCoy yelled at the crowd to get back, but they did not obey. About four

men advanced toward him, and he believed they were going to attack him, so he swung

his flashlight at them and struck several of them. The men backed up a few feet, and

Officer McCoy radioed for backup. A man knocked the flashlight out of the officer‟s

hand and put both of his hands around the officer‟s neck. Officer McCoy kneed the man

in the midsection.

      Defendant approached, and Officer McCoy told him to get back. Defendant said,

“„I ain‟t doing nothing,‟” and continued to walk quickly toward the officer. Officer

McCoy struck defendant‟s chest with his elbow and forearm, and defendant stepped back.

Defendant then advanced on the officer swinging his arm at him. Defendant was holding

a rock, and he hit the officer on the bridge of the nose. Defendant again advanced on

Officer McCoy, but another man in the crowd attempted to block his path. Officer

                                            4
Buddy Porch arrived, and Officer McCoy told him they needed to take defendant into

custody.

       Defendant ran to the back of the property, and Officer McCoy followed him but

was blocked by another man who refused to move when told to. Officer McCoy struck

that man with his baton, causing him to fall down. Officer McCoy saw Officer Buddy

Porch tackle defendant, and he saw defendant struggling with several other officers.

Defendant was on the ground kicking at the officers and trying to get up. Officer McCoy

struck defendant‟s upper body with his baton, and the other officers handcuffed him.

       Officer Porch arrived at the party and saw Officer McCoy with blood on his face

pointing toward defendant. Officer McCoy said defendant had hit him. Defendant was

running away from the area, and Officer Porch followed him. Defendant punched

Officer Porch in the face, and the officer punched him back. Defendant fell to the

ground.

       Officers Shannon Van der Kallen and Erik Savage testified they saw defendant hit

Officer McCoy in the face. Officer Van der Kallen had not seen Officer McCoy do

anything to defendant before that. While trying to apprehend defendant, Officer Van der

Kallen struck defendant two or three times with his flashlight, kicked him two or three

times, and struck him in the face with his fist. Officer Savage testified that after

defendant struck Officer McCoy, defendant lunged at Officer Porch and punched him in

the face. Officer Savage kicked defendant while defendant was on the ground because

defendant was resisting arrest.



                                              5
       K-9 Officer Katie Beebe saw defendant on the ground struggling with other

officers. She told him to stop resisting, and when he refused, she unleashed her dog at

him and commanded the dog to bite. The dog bit defendant several times, and the

officers gained control of defendant. As soon as they handcuffed him, she called off her

dog.

       Officers Diaz, McCoy, Van der Kallen, Beebe, and Porch did not see any

witnesses trying to record the events with recording devices and did not see any officer

remove a recording device from a civilian.

       It was stipulated that it was police department policy to book into evidence any

cell phone or camera found at the scene, and no such devices were booked into evidence

in this case.

       After his arrest, defendant told Officer Nicholas Sadler he drank three or four

beers that night. A recording of the interview was played for the jury. Defendant

admitted he had swung at an officer to defend himself after the officer came at him with a

baton. He denied he had used a rock or any other object. Officer Sadler testified

defendant‟s eyes were red, bloodshot, and watery, and his speech was slurred. The

officer believed defendant was under the influence of alcohol.




                                             6
       B. Defense Evidence

       Maria del Carmen Casillas4 testified she had known defendant since he was a

child; he was not violent and was respectful of authority. On August 30, 2009, she

attended a baptism party for her grandchildren in Fontana. About 300 guests of all ages

from infants to elderly persons had attended the party, but by midnight when the party

was winding down, only about 60 guests remained, and people were starting to clean up.

No one was dressed in baggy gang-banger clothing. Although alcoholic beverages were

served at the party, no one seemed to be out of control with their drinking. Private guards

provided security at the party.

       Shortly after midnight, a scuffle occurred when two men pushed each other. A

few minutes later, about 40 police officers ran in and started shoving people, knocking

them to the ground, and hitting them. Maria heard the officers say things like, “„Stupid

Mexicans.‟” She did not see anyone throw anything at the officers or act aggressively.

Officers fired rubber bullets at Maria, her daughter, and other guests. Maria saw one of

her sons and defendant run toward the corral, and an officer knocked them down.

Defendant put his hands out and pushed an officer to get around him; the officer punched

defendant in the face, and defendant fell to the ground. Maria‟s son, Dorian Casillas, got

between defendant and the officer, and officers knocked both of them over. While

defendant was on the ground, an officer sat on him and hit him in the face. Defendant

was turned over, and another officer hit him. Officers kicked him after he was

       4Because several witnesses share last names, we will refer to them by their first
names for clarity and convenience, and not intending any disrespect.

                                            7
handcuffed and lifted him by his arms and dropped him. A police dog was released on

Dorian and defendant. Defendant was very beaten up and had a lot of blood on his face.

       Maria saw several people videotaping the events. A police officer came up behind

a woman who was recording the police hitting a man on the ground, and the officer took

the video recorder, put it in a nylon bag, and took it with him. Maria‟s daughter-in-law

was also recording the officers who were beating defendant, and another officer took her

camera and threw it on the ground. Maria‟s son, Jonathan Casillas, was holding his cell

phone high in front of him in the direction where defendant was being handcuffed, and a

police officer knocked the phone out of his hand. The phone broke, and the officer took

it and did not return it.

       Raven Lapetina testified he had been with defendant at the party the whole time.

It was a family party, and they were not intoxicated. No alcohol was served after about

midnight or 12:30, and only about 50 people were left at the party. Some people were

cleaning up. A small scuffle occurred between two people, and a few minutes later,

about 30 police officers came running in and started shooting beanbag guns.

       A blond-haired officer sprinted toward defendant, grabbed him by the shoulders,

and hit him with his knees in the back, slamming defendant into a wall. Defendant,

whose back had been to the officer, started to turn around, and he swung, hitting the

officer in the nose. Another officer ran up to Lapetina, hit him in the chest with a

shotgun, and told him to get back. After defendant hit the blond officer, another officer

slammed defendant to the ground and hit him. Another officer got on top of defendant

and hit him with his knees. The two officers continued kneeing defendant on his neck,

                                             8
shoulders, and head. A police K-9 was on top of defendant, biting him on the neck.

Lapetina did not see defendant fight the officers; defendant was lying face down on the

dirt screaming. Lapetina did not see anyone throw bottles, cans, or rocks at the officers,

and he did not see a rock in defendant‟s hand when he hit the blond officer. Lapetina saw

Jonathan Casillas using a cell phone to record the encounter and the dog attack when an

officer came up and slammed the phone out of Jonathan‟s hand. The officer smashed the

phone and kept stepping on it. Another officer hit a phone out of a person‟s hand with a

baton when the person was pointing it toward the activity involving officers and

defendant. Lapetina saw officers picking up cell phones and recording devices from the

ground and putting them in a bag. Defendant had bruises and injuries to his face and

torso that remained visible for three or four weeks.

       Viviana Ortega was at the party with several family members, including her

children. She did not know defendant. She saw 10 or 15 police officers arrive, and she

saw Jonathan recording events with a cell phone. An officer approached Jonathan and

slapped the phone to the ground. She heard Jonathan yell that the phone was broken and

asked if anyone else had a phone. She did not know Jonathan before the event.

       Coral Ortega attended the party with several relatives, including four young

children. She did not know defendant. About 250 or 300 people had attended the party,

but by the time the officers arrived, the party was winding down, people were cleaning

up, and only about 100 people remained. Alcohol was served, but it was a family event;

no one was belligerently drunk, and no one was wearing baggy clothing. Like other

witnesses, she testified there had been a scuffle shortly before the police arrived. She

                                             9
saw two officers walk toward the back of the party, and then she saw 8 to 11 officers with

rifles. She did not see anyone throw anything at the officers or act aggressively toward

them. Coral‟s husband had gone into a Porta-Potty, and when he came out, he was shot

with a Taser, fell to the ground, and then was beaten. An officer put a gun to Coral‟s

head when she tried to go to her husband and told her to get out of there. Coral was

holding her four-year-old child when that occurred. She saw three recording devices

being used, but she did not know the people doing the recording. She did not see any

officer take recording devices or cell phones away from the people. Jonathan showed her

his cracked cell phone.

       Luis Chavez, a friend of defendant, was a guest at the party. People were

drinking, but no one was out of control. By 12:30 a.m., the party was winding down;

about 80 people were still there. A fight took place between two men, but the

participants were kicked out and it was quickly over. A few minutes later, a few officers

arrived, and shortly after that, about 30 officers swarmed in, running toward the party and

pushing people out of the way. Chavez did not see anyone acting aggressively toward the

police or throwing anything at them. He saw a tall blond officer approach defendant,

who was talking with friends, and grab him by the shirt and push him away. Defendant

put up his hands. The blond officer grabbed defendant, tossed him to the ground, got on

top of him, and started hitting him. Two or three more officers began hitting defendant

with hands and batons, while defendant was face down on the ground with his hands

covering his head. Chavez saw a man using a cell phone to record the events, and an



                                            10
officer told the man to put the phone away or the officer would take it away. The man

complied.

       David Caldera worked as a security guard at the party. He was not acquainted

with defendant. About 300 or 350 guests, including children, had attended the party.

Around midnight when Caldera left, about 280 guests remained. People were drinking

but they were not acting intoxicated.

       Michael Carrier testified that he was a friend of defendant‟s family, and he knew

defendant to be “a very humble, loving kid, very respectful.”

       Maribel Davis testified she worked with defendant and was his friend. She knew

him to be a truthful, nonviolent person who was respectful of authority.

       C. Rebuttal Evidence

       The police dispatch log showed that 42 officers had responded to the party scene,

but the officers had not all arrived at the same time.

       An expert witness testified that officers are trained to order persons to put things

down or to take steps to prevent objects from being thrown when items are thrown at

them. The level of force is up to the officer and depends on the situation. Witnesses

have a right to record police actions, and officers are not trained to knock recording

devices out of witnesses‟ hands unless there is a threat the devices will be used as

weapons against the officer. Based on reports of persons at the party throwing bottles

and other items, it would be consistent with department policy for officers to knock

items, including cell phones or cameras, out of peoples‟ hands. Officers are not trained to



                                             11
stomp on recording devices or to seize and remove items. If an officer picked up a

recording device to prevent it from being thrown, it should be booked as found property.

        D. Verdict and Sentence

        The jury found defendant guilty of misdemeanor assault on a police officer (§ 241,

subd. (c)) as a lesser included offense to the charge of assault on a police officer with a

deadly weapon (§ 245, subd. (c)). The jury found not true the allegation that defendant

inflicted great bodily injury (§ 12022.7) and was hung on two additional counts of

resisting an executive officer (§ 69). The trial court invited the prosecutor to converse

with the jury after the jury was discharged, and the prosecutor thereafter represented to

the court that the jury votes on those counts had been 11 to 1 and 10 to 2 in favor of

acquittal. The trial court dismissed those counts on the People‟s motion under section

1385.

        The trial court sentenced defendant to serve 180 days in jail.

                                     III. DISCUSSION

        Defendant contends the trial court erred in refusing to instruct the jury with a

requested instruction on willful destruction of evidence.

        A. Additional Background

        Defense counsel requested the trial court to instruct the jury on willful destruction

of evidence as follows: “If you find that any police officer intentionally and willfully

attempted to suppress material evidence by destroying cell phone or video recording of

the officers‟ conduct and actions at the August 30, 2009 party at 15765 Santa Ana

Avenue in Fontana, you must presume that the destroyed evidence would have shown

                                              12
that the police officers were not lawfully performing their duties at the party and were

instead using unreasonable or excessive force. If you find that any police officer

destroyed this type of evidence, this alone can create a reasonable doubt about

[defendant‟s] guilt on all charges.”

       The trial court stated it would not give that requested instruction but instead

instructed the jury as follows: “„If you find any police officer intentionally, willfully

destroyed any cell phone or video camera in this case, you may consider that evidence in

determining whether or not there‟s a reasonable doubt to the defendant‟s guilt on all

charges.‟”

       B. Standard of Review

       Defendant‟s proposed instruction addressed a factual issue raised by the evidence:

did police officers deliberately destroy potentially exculpatory evidence. We review de

novo whether the trial court properly instructed the jury on that issue. (People v. Gurule

(2002) 28 Cal.4th 557, 659.)

       Defendant‟s requested instruction also proposed a remedy in the event the jury

found such destruction of evidence: a presumption of unlawful performance of official

duties and an instruction that deliberate destruction of evidence could create a reasonable

doubt. We review for abuse of discretion the remedy the trial court selects for destruction

of evidence. (People v. Zamora (1980) 28 Cal.3d 88, 99 (Zamora).)




                                             13
       C. Analysis

              1. Duty to Instruct

       “A trial court must instruct the jury, even without a request, on all general

principles of law that are „“closely and openly connected to the facts and that are

necessary for the jury‟s understanding of the case.” [Citation.] In addition, “a defendant

has a right to an instruction that pinpoints the theory of the defense . . . .‟” [Citation.]”

(People v. Hovarter (2008) 44 Cal.4th 983, 1021.) However, “[t]here is no requirement

that the jury be instructed in the precise language requested by a party. [Citation.]”

(People v. Kegler (1987) 197 Cal.App.3d 72, 80.) And it is not error to refuse to give a

proposed instruction if other instructions adequately addressed the same point. (See, e.g.,

People v. Zamudio (2008) 43 Cal.4th 327, 361.) We will therefore focus on the adequacy

of the instruction the trial court actually gave.

              2. Obligation to Preserve Evidence

       Law enforcement agencies have a constitutional obligation to preserve evidence

“that might be expected to play a significant role in the suspect‟s defense.” (California v.

Trombetta (1984) 467 U.S. 479, 488, fn. omitted.) To fall within the scope of this duty,

the exculpatory value of the evidence must be apparent before the evidence was

destroyed, and the evidence must “be of such a nature that the defendant would be unable

to obtain comparable evidence by other reasonably available means.” (Id. at p. 489.) A

failure to preserve evidence done in bad faith constitutes a due process violation.

(Arizona v. Youngblood (1988) 488 U.S. 51, 58.



                                               14
       Unlike in Zamora, where it was undisputed that the city attorney‟s office had

destroyed records of complaints against police officers (Zamora, supra, 28 Cal.3d at pp.

96-97), the evidence in this case was controverted: five eyewitnesses testified on

defendant‟s behalf that they had seen police officers destroying cell phones or recording

devices or ordering civilians not to use them; whereas, the police officers testified they

had not seen anyone using cell phones or recording devices and had not seen such

devices being destroyed. Thus, the evidence presented a question of fact as to whether

police officers destroyed material evidence. (People v. Hovarter, supra, 44 Cal.4th at p.

1021.) Both defendant‟s requested instruction and the instruction the trial court actually

gave properly left that issue to the jury.

              3. Adequacy of Sanction

       The second issue presented was the appropriate sanction if the jury found a due

process violation had occurred. In Zamora, supra, 28 Cal.3d at page 99, our Supreme

Court held that the trial court has discretion to select an appropriate remedy. In that case,

citizen complaints against police officers had been destroyed, but the trial court found

that the destruction of the complaints had not been in bad faith and refused to impose

sanctions on the prosecution. (Id. at pp. 93-94.) The Supreme Court reversed, and in

doing so, identified three factors for determining the proper sanction for destruction of

evidence. First, the court considered “„the particular circumstances attending [the] loss or

destruction,‟” and noted that if the destruction was lawful and proper, no sanction was

warranted, but if the destruction was illegal and malicious, dismissal of the action might

be appropriate. (Id. at p. 100.) Second, the court noted that “the sanction depends on the

                                             15
materiality of the evidence suppressed.” (Ibid.) Finally, the court stated that in imposing

a proper sanction, “the courts must consider the impact of the sanction upon future cases

and future police conduct.” (Ibid.) Applying those principles, the court fashioned a

remedy that addressed specifically the evidence lost to the defendant: “[U]pon remand of

this case, the court should instruct the jury that [the officers] used excessive or

unnecessary force on each occasion when complaints were filed against those officers,

but that the complaint records later were destroyed. The court should also instruct the

jury that [it] may rely upon that information to infer that the officers were prone to use

excessive or unnecessary force [citation] and that the officers‟ testimony regarding

incidents of alleged police force may be biased. [Citation.]” (Id. at pp. 102-103, fn.

omitted.)

       Similarly, in People v. Wimberly (1992) 5 Cal.App.4th 773, 793, the court

approved an instruction to the jury that it “may” draw an adverse inference from

destruction of evidence, and such adverse influence “may be sufficient to raise a

reasonable doubt” as to certain counts. In that case, the trial court found the evidence had

been destroyed under an existing policy, in violation of a discovery order, but not in bad

faith. (Ibid.)

       Here, the trial court instructed the jury that if it found police officers had willfully

destroyed a cell phone or video camera, the jury could “„consider that evidence in

determining whether or not there‟s a reasonable doubt to the defendant‟s guilt on all

charges.‟” Such evidence was material, because the defense to all the charges was that

the officers were not lawfully performing their duties and were using excessive force. In

                                              16
our view, that instruction imposed no meaningful sanction for a due process violation—

even without that instruction, the jury could, of course, consider the police conduct,

among all the other evidence, in determining whether the People met their burden of

proving defendant‟s guilt beyond a reasonable doubt. The trial court‟s instruction did not

inform the jury that it could draw an adverse inference from willful destruction of

evidence (see Zamora, supra, 28 Cal.3d at pp. 102-103) or that such inference could be

sufficient to raise a reasonable doubt as to defendant‟s guilt (see ibid.; see also People v.

Wimberly, supra, 5 Cal.App.4th at p. 793). Thus, the trial court‟s instruction failed to

consider “the impact of the sanction upon future cases and future police conduct.”

(Zamora, supra, at p. 100.) We conclude the trial court‟s instruction was an abuse of

discretion.

       D. The Error Was Not Prejudicial

       The People argue the instructional error is reviewable under the standard of People

v. Watson (1956) 46 Cal.2d 818. However, in People v. Yeoman (2003) 31 Cal.4th 93,

126, the court assumed the People‟s loss of original photographs implicated the

defendant‟s due process rights, and the error was therefore reviewable under the standard

of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See also Zamora, supra,

28 Cal.3d at p. 104, fn. 11 [“[S]ince suppression of evidence constitutes a violation of a

defendant‟s due process rights [citations], it would appear that the proper test to be

employed here is that enunciated in [Chapman] for errors of a constitutional nature.

[Citation.]”].)



                                              17
       We nonetheless conclude the error was not prejudicial even under Chapman. As

noted, defendant was convicted only of misdemeanor assault on a police officer as a

lesser included offense to count 1. That count was based on defendant striking Officer

McCoy in their initial encounter. However, none of the defense witnesses testified there

was anyone recording the events when Officer McCoy first encountered defendant;

rather, the witnesses testified the recording was taking place when defendant was already

on the ground being kicked and beaten by the officers, being attacked and bitten by the

K-9, or being handcuffed. Thus, based on the record before us, even if the trial court had

instructed the jury it could draw an adverse inference that could lead to a reasonable

doubt as to defendant‟s guilt if the jury found the officers had destroyed evidence, the

instruction would not have been relevant as to count 1.

                                      IV. DISPOSITION

       The judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                               HOLLENHORST
                                                                        Acting P. J.
We concur:

       MCKINSTER
                                 J.

       CODRINGTON
                                 J.




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