Filed 9/5/13 P. v. Chavez CA4/2

                     NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO



THE PEOPLE,

         Plaintiff and Respondent,                                        E054719

v.                                                                        (Super.Ct.No. RIF10002353)

JOSEPH ANGEL CHAVEZ,                                                      OPINION

         Defendant and Appellant.



         APPEAL from the Superior Court of Riverside County. Robert E. Law, Judge.

(Retired judge of the former Orange Mun. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part with directions.

         David Andreasen, 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, Andrew Mestman and Steve

Oetting, Deputy Attorneys General, for Plaintiff and Respondent.




                                                              1
       A jury found defendant and appellant Joseph Angel Chavez guilty of attempting

to deter an executive officer from performing his duties or resisting an executive officer

by force or violence (Pen. Code, § 69),1 willfully resisting a peace officer (Pen. Code,

§ 148, subd. (a)(1)), and being under the influence of a controlled substance (Health &

Saf. Code, § 11550, subd. (a)). Defendant admitted suffering a prior strike conviction

(§§ 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)), and three prior convictions for

which he served prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant

to prison for a term of five years, eight months.2

       Defendant raises 15 issues on appeal. First, defendant contends the trial court

erred by denying his motion concerning the State’s failure to gather and preserve

evidence.3 Second, defendant asserts the trial court erred by ruling evidence of a

deputy’s prior use of excessive force could be admitted contingent on defendant

testifying. Third, defendant contends the trial court erred by admitting evidence of

defendant’s prior conviction for resisting arrest.




       1 All subsequent statutory references will be to the Penal Code unless otherwise
indicated.

       2The second amended abstract of judgment reflects defendant’s prison term is
four years, eight months.

       3 See Arizona v. Youngblood (1988) 488 U.S. 51, 57-58 (Youngblood);
California v. Trombetta (1984) 467 U.S. 479, 488-489 (Trombetta).


                                             2
       Fourth, defendant asserts the trial court erred by permitting a deputy to testify

regarding his opinion that defendant was attempting a burglary and that defendant was

especially dangerous due his prior prison commitment. Fifth, defendant contends the

prosecutor committed misconduct by attempting to distract and inflame the jurors by

using evidence of defendant’s tattoos as proof defendant is a violent person. Sixth,

defendant asserts the jury was incorrectly instructed on the resistance charges because

there was not substantial evidence that the initial detention was lawful.

       Seventh, defendant contends the trial court did not correctly instruct the jury on

the law of a proper search and seizure. Eighth, defendant asserts the trial court erred by

incorrectly instructing the jury on a defendant’s right to respond to excessive force by a

peace officer. Ninth, defendant asserts the trial court erred by giving ex parte responses

to jury questions without notifying counsel. Tenth, defendant contends the trial court

erred by coercing the jury into reaching a verdict. Eleventh, defendant asserts the

cumulative effect of the foregoing 10 alleged errors created a denial of due process.

       Twelfth, defendant contends his conviction for resisting a peace officer (§ 148,

subd. (a)(1)) must be vacated because it is a lesser included offense of resisting an

executive officer by force or violence (§ 69). Thirteenth, defendant asserts that if

section 148 is not a lesser included offense of section 69, then the sentence related to his

section 148 conviction must be stayed. (§ 654.) Fourteenth, defendant requests this

court conduct an independent review of the in-camera hearing on defendant’s Pitchess4


       4   Pitchess v. Superior Court (1974) 11 Cal.3d 531.


                                             3
motion. Fifteenth, defendant asserts Judge Law should be disqualified from presiding

over this case if it were to be remanded. We affirm in part and reverse in part with

directions.

                    FACTUAL AND PROCEDURAL HISTORY

       A.     CURRENT CASE

       On March 24, 2010, Riverside County Sheriff’s Deputy Davis (Davis) was

dispatched to the unincorporated Rubidoux area of Riverside County. The dispatch was

made in response to a woman calling law enforcement due to a “gangster-looking” man

carrying a pillowcase, knocking on the woman’s door, asking to borrow an electrical

cord, and claiming to live next door to the woman in a house the woman knew to be

vacant. Davis drove his black and white patrol car to the Rubidoux neighborhood at

approximately 12:30 p.m.

       While driving, Davis saw defendant walking down the street, toward the patrol

car, and holding a pillowcase. Davis believed defendant was “probably burglarizing

something.” As defendant was walking, Davis recognized defendant as an active

parolee due to Davis reviewing the parolee database while on duty. Davis is more

cautious with people who are on parole because he is more concerned for his safety

when dealing with them.

       Davis parked his patrol car on the street. Defendant stopped in front of the car.

Davis, who was in uniform, spoke to defendant and, in order to begin the process of

patting him down, started placing defendant’s hands behind his back. As Davis put

defendant’s hands behind his back defendant pulled his arms from Davis’s grasp,


                                            4
shoved the deputy, and then ran down the street. Davis chased after defendant in his

patrol vehicle and then on foot once defendant ran through a residential backyard.

Defendant tried to jump over the backyard fence, but he was unable to do so because the

plank at the top of the fence broke or he lost his grip.

       Davis was approximately 15 feet away from defendant when defendant failed in

his attempt to jump over the fence. Davis instructed defendant to “‘Get on the ground.

Show me your hands.’” Defendant yelled, “‘Why? Why?’” Defendant did not comply

with Davis’s instructions. Davis removed his gun from its holster, because defendant

had not been patted down and he was not complying with Davis’s instructions. For

example, defendant never moved onto the ground. Davis was concerned for his safety.

       Davis sprayed defendant’s face with pepper spray from a distance of 10 to 15

feet. Davis’s partner, Deputy Broda (Broda) arrived at the backyard. Broda grabbed

defendant, and Davis also grabbed defendant. Defendant pulled his arm away from

Davis, and then punched Davis on the left side of his face. Davis tried to hit defendant

with a rapid containment baton, but missed and hit a wall. Davis swung the baton at

defendant a second time and struck defendant’s arm. Defendant did not react but he

began moving away from the deputies. Davis continued telling defendant to comply

with his orders.




                                              5
       Broda said, “‘Taser, taser,’” to announce his intention to tase defendant, so Davis

moved away. Broda deployed the taser, the two taser prongs connected with defendant,

but not at the same time. The taser did not appear to have any effect on defendant.

Defendant pulled the taser prongs off of his clothing. It is unclear if the taser prongs

connected with defendant’s skin. Davis punched defendant three or four times.

       Davis and defendant began wrestling on the ground. Defendant pulled Davis’s

leg towards defendant’s face, possibly in an attempt to bite the deputy. Davis struck

defendant’s face with an open hand three or four times, in an attempt to stop defendant

from pulling his leg. Broda removed the prongs from the taser and “dry stunned”

defendant five times by applying the taser directly to defendant’s skin without the barbs.

The dry stuns did not affect defendant. Eventually, Davis was able to move one of

defendant’s arms behind his back, while Broda moved defendant’s other arm behind his

back. Broda forcefully held defendant’s hands behind his back, in order to place

defendant in handcuffs.

       Davis called for paramedics, due to defendant being dry stunned, tased, and hit.

Defendant was handcuffed to a gurney and taken to a hospital. Defendant told medical

personnel he swallowed a gram of methamphetamine. While on the gurney, defendant

was sweating, rocking back and forth, speaking rapidly, and his pulse was “well over

100 beats a minute.” Davis believed defendant was under the influence of a stimulant.

Defendant’s blood tested positive for amphetamines. Defendant suffered two

lacerations on his face and two welts on his back.




                                             6
       The prosecutor asserted the charge of resisting an executive officer from

performing his duties by force or violence (§ 69) concerned defendant’s initial

interaction with Davis wherein defendant shoved Davis prior to running away. The

prosecutor argued the charge of willfully resisting a peace officer, without force (§ 148,

subd. (a)(1)), related to defendant’s act of running away from Davis. Defendant argued

Davis used excessive force, and therefore was not lawfully performing his duties.

Defendant faulted Davis for attempting to search defendant (1) before confirming

defendant was on parole, and (2) without telling defendant why he was conducting the

search. Further, defendant asserted prior testimony reflected defendant only pushed

Davis’s hand away—he did not shove the deputy in order to run away.

       B.     PRIOR CASE

       On July 4, 2000, Riverside County Sheriff’s Deputy Williamson (Williamson)

was on patrol, wearing a uniform, and driving a black and white patrol car. At

approximately 11:30 p.m., Williamson saw a car parked along the street with a person

lying down in the passenger seat. As Williamson approached the car, the car left the

parking space at a higher rate of speed than Williamson would consider to be normal.

Defendant was left standing near where the car had been parked. Williamson spoke to

defendant. Defendant agreed Williamson could search him.

       Williamson placed defendant’s hands behind his back, and held them with one of

his own hands, in order to begin patting down defendant. Defendant appeared to be

under the influence of a controlled substance; when Williamson asked defendant his

name, defendant responded unintelligibly. As Williamson began the pat-down,


                                            7
defendant turned, raised an elbow, and then ran away. Williamson chased after

defendant, but was unable to locate him.

       Williamson and a crime analyst searched several databases to find a match for

the tattoos Williamson saw on defendant’s face and neck. Williamson identified

defendant as the person who ran away from him. Williamson learned defendant was on

parole. Williamson spoke to defendant’s parole agent, and a parole hold was placed on

defendant. A parole hold is similar to an arrest warrant.

       In August 2000, Riverside County Sheriff’s Deputy Albaran (Albaran) was on

patrol, in the Rubidoux area, in a marked patrol car. In the patrol car, Albaran had a

copy of defendant’s wanted flier. At approximately 8:00 p.m., Albaran saw defendant

walking down a street. Albaran stopped his car near defendant and shined a spotlight on

him. Defendant turned around and ran into an apartment. Albaran used his radio to

request assistance. Deputy Barajas (Barajas) arrived to assist Albaran.

       Barajas located defendant inside one of the apartments. Barajas radioed that he

was holding defendant at gunpoint. Albaran arrived at the apartment and also drew his

gun. Defendant was following orders given by Barajas, such as lying on the ground.

Barajas then instructed defendant to stand up and put his hands on top of his head.

Defendant stood up, and Barajas tried to holster his gun in order to handcuff defendant,

but the two began fighting.




                                            8
       The fight began in the kitchen. Defendant was reaching on the countertops “for

anything he could get his hands on.” Albaran yelled for Barajas to leave the kitchen; it

appeared defendant was reaching for a knife, and the kitchen was too small of a space

for Albaran to shoot defendant. Defendant yelled, “‘You’re not fucking taking me.’”

       The fight moved into the living room. It was a “knock down, drag out fight . . .

all over that living room,” with punching and kicking. Albaran sprayed defendant with

a chemical agent from a distance of two or three feet, but it only increased defendant’s

fury. Albaran feared for his and Barajas’s lives. Defendant was sweating profusely and

his clothes were coming off. The fight continued in the living room. At one point,

defendant managed to throw the two deputies off him, and ran toward the apartment’s

entry door.

       Just as defendant was exiting through the door, Sergeant Bracey was running

toward the door. Defendant collided with Sergeant Bracey, and thus was kept in the

apartment. Defendant continued fighting the three law enforcement officers.

Eventually, with the help of a fourth deputy, they were able to handcuff defendant. It

took all four law enforcement officers to place defendant in handcuffs. Albaran was

able to recall the incident after 11 years because during his 14 years as a law

enforcement officer, the fight with defendant “was way by far the worst fight that [he

had] ever been in.” Defendant suffered swelling on his face and a bloody nose. Barajas

suffered a hand injury. Albaran had cuts on his hand.




                                             9
                                      DISCUSSION

       A.     TROMBETTA/YOUNGBLOOD MOTION

              1.     PROCEDURAL HISTORY

       Prior to trial, defendant filed a motion asserting his due process rights had been

violated because the State willfully destroyed evidence. Defendant explained Sergeant

Marks obtained a recording of the 911 call and related “audio traffic,” in the instant

case, as well as dispatch logs and a computer generated printout of the call. Marks

listened to the audio recording and then booked the items into evidence. When an

investigator from the district attorney’s office tried to retrieve the audio recording and

report from the Sheriff’s property room, the items could not be located.

       Defendant argued the audio recording was important because “it establishes a

basis for the officer to contact the defendant at all, and whether the defendant matched

the description” given by the reporting party. Defendant asserted the dispatch logs were

necessary to prove “the sequence of events and time frame.”

       At a hearing, the trial court and the parties speculated, but agreed, that the

evidence was likely still in the Sheriff’s property room but that it could not be located

and “[t]here’s just no way to retrieve it.” The trial court described the Sheriff’s property

room as a place “where evidence goes to die.” The prosecutor explained that Marks

prepared a report about the audio recording based upon listening to the recording.

       Defendant expressed concern that Marks’s report about the audio traffic

(discussion between Davis and dispatch) only covered words that were said and not

background noise. Defendant believed the background noises might provide context to


                                             10
what was happening during defendant and Davis’s interaction. The trial court stated it

wanted to hear from Marks about whether any exculpatory information was on the

recordings, and why the evidence could not be retrieved from the property room. The

prosecutor said he would try to schedule “somebody” to testify for the evidentiary

hearing.

       The following day, the prosecutor stated the dispatch logs were located. The

logs are “drafted by a dispatcher so when somebody calls 911, anything that’s said is

printed out on this catalog.” The prosecutor did not have the audio recording—just the

printout. The trial court said to defense counsel, “So I do not think you have a

Trombetta issue if they have a printout. [¶] And you’d say, ‘Yeah, I agree.’ Right?”

Defense counsel responded, “Um, well, we’ll see, your Honor.” The trial court said,

“Well, in any event, okay. That should—that may resolve the problem. You will

present it as an exhibit, and I don’t know what I’ll do yet. [¶] But the next thing I want

to do is pick the jury.”

       Several days later, defense counsel asked the trial court to clarify if it denied the

Trombetta motion. The trial court said, “Yeah, I think so.” The court explained the

printout was available, but the audio recording “disappeared in the [Sheriff’s] evidence

locker. [¶] . . . [¶] . . . Where things go to disappear.” The court then moved on to

discussing the content of the dispatch logs and whether certain information needed to be

redacted, such as defendant appearing to be “a gangster-looking person.”




                                             11
              2.      ANALYSIS

                      a)     Contentions

       Defendant contends the trial court erred by (1) denying his

Trombetta/Youngblood motion, and (2) not conducting an evidentiary hearing on the

motion. The People contend defendant forfeited the Trombetta issue for appeal by not

pushing for an evidentiary hearing after the prosecutor produced the transcript of the

dispatch logs. We agree with the People.

                      b)     Forfeiture Law

       “A fundamental tenet of our system of justice is the well-established principle

that a party’s failure to assert error or otherwise preserve an issue at trial ordinarily will

result in forfeiture of an appeal of that issue. ‘“The purpose of the general doctrine of

waiver is to encourage a defendant to bring errors to the attention of the trial court, so

that they may be corrected or avoided and a fair trial had.”’ [Citation.]” (People v.

McKinnon (2011) 52 Cal.4th 610, 636, fn. omitted.)

                      c)     Standard of Review

       “The standard of review of a trial court’s determination that evidence is or is not

sufficiently exculpatory under Trombetta and Youngblood is unsettled, and it may

depend on the extent of the inquiry a court takes before ruling on a Trombetta motion.”

(People v. Velasco (2011) 194 Cal.App.4th 1258, 1262.) “It is settled that the

substantial evidence standard applies to a trial court’s determination, following a factual

inquiry, that the state acted in good or bad faith in failing to preserve evidence.

[Citation.]” (Ibid.) However, it is unclear what standard of review applies when a


                                              12
hearing is not conducted. (Ibid.) For the sake of caution, we will apply the de novo

standard of review. (U.S. v. Cooper (9th Cir. 1993) 983 F.2d 928, 930-931 [applying de

novo standard of review although a factual inquiry took place].)

                     d)     Trombetta/Youngblood Law

       “Under Trombetta and Youngblood, ‘Law enforcement agencies must preserve

evidence only if it possesses exculpatory value “apparent before [it] was destroyed,”

and not obtainable “by other reasonably available means.” [Citations.] The state’s

responsibility is further limited when the defendant challenges the failure to preserve

evidence “of which no more can be said than that it could have been subjected to tests”

that might have helped the defense. [Citation.] In such a case, unless the defendant can

show “bad faith” by the police, failure to preserve “potentially useful evidence” does

not violate his due process rights.’ [Citation.]” (People v. Velasco, supra, 194

Cal.App.4th at p. 1262.)

                     e)     Analysis

       The dispatch logs do not appear on the prosecution’s or defense’s exhibit lists.

The record does not include a clerk’s exhibit list. There is nothing reflecting in the

record that the dispatch logs indicate the sounds of a struggle taking place, such that

there would be exculpatory evidence of Davis applying excessive force to defendant.

For example, transcripts will sometimes indicate, “Unintelligible. Background noise.”

It appears to be only defendant’s speculation that exculpatory material may be on the

audio recording. Thus, defendant needs to show bad faith on the part of law

enforcement for failing to preserve the evidence.


                                            13
       It is at this point that we encounter a forfeiture problem. Defendant did not

request a hearing on the issue of bad faith. Trial counsel and the trial court agreed the

evidence likely still existed but was lost in the Sheriff’s property room. The trial court

commented about evidence regularly “dying” and “disappearing” in the Sheriff’s

property room; however, these discussions are not evidence. There is nothing for this

court to look at when conducting a de novo review concerning the bad faith issue. By

failing to request a hearing, or at least making an offer of proof, we are left with nothing

to review. (People of Territory of Guam v. Muna (9th Cir. 1993) 999 F.2d 397, 400

[burden is on defendant to show government’s bad faith].) As a result, we conclude

defendant forfeited the issue on appeal.

       Defendant presents the following argument: Marks listened to the recording

before it disappeared. Therefore, to the extent there was exculpatory information on the

recording, Marks was aware of it. Defendant then asserts, “So if the recording was

exculpatory, bad faith was present.” Defendant’s reasoning is problematic. We do not

know whether the recording contained exculpatory information, which is why we have

moved our analysis to the next step: was there bad faith? Defendant’s argument is

moving in a circle, in that he is using the speculation about possible exculpatory

information to support the argument about bad faith. Rather than circling back to

speculating about the possible exculpatory nature of the evidence, defendant needs to

explain if there is evidence of animus between him and the deputies, or evidence of a

calculated or conscious decision to destroy the evidence. (Trombetta, supra, 467 U.S. at

p. 488 [“The record contains no allegation of official animus towards respondents or of


                                            14
a conscious effort to suppress exculpatory evidence”].) Accordingly, we find

defendant’s argument to be unpersuasive.

       Next, defendant asserts the circumstances surrounding the recording’s

disappearance are suspicious because (1) Lieutenant Ybarra, who seemingly is not

connected with the case, was the last person to check out the recording before it

disappeared, (2) the evidence was supposedly lost for a year, but the dispatch logs were

located within a day of the motion hearing, and (3) the transcript was separated from the

audio recording despite the items being booked into evidence together, under the same

barcode number. Defendant’s argument lacks record citations, and we are unable to

locate any evidence supporting these assertions. It appears defendant is relying on

comments made during the hearings and the argument in defendant’s trial court motion

brief, as opposed to statements made under oath by witnesses. While we appreciate

defendant may fault the trial court for not holding a hearing that would permit him to

have testimony, we are again confronted with the problem that defendant did not request

a hearing on the bad faith issue. Thus, we are again confronted with the issue of

forfeiture, and therefore find defendant’s argument to be unpersuasive.

       B.     EVIDENCE OF DAVIS’S PRIOR USE OF EXCESSIVE FORCE

              1.     PROCEDURAL HISTORY

       Prior to the start of trial, the prosecutor informed the trial court that defendant

had previously brought a Pitchess motion. As a result of that motion it was discovered

that Davis’s file included an allegation of excessive force from 2005 or 2006; however,

the allegation was deemed unfounded by the Sheriff’s Department and Davis was not


                                             15
disciplined as a result of the incident. The prosecutor asserted the excessive force

evidence was not relevant and improper character evidence.

       Defendant explained he planned to present a statement from Enrique Mendoza

who alleged Davis punched him two times after Mendoza was in handcuffs. Defendant

asserted the allegations were deemed unfounded by the Sheriff’s Department only

because Mendoza grew tired of pursuing the claim. Defendant argued the evidence was

relevant because his defense theories were excessive force by Davis and self-defense.

Defendant argued Mendoza’s excessive force allegation “goes to the crux of the

defense.”

       The trial court said it could not rule on the motion because it did not “know

what’s going to be said by the defense.” The trial court said it would not speculate

about the defense’s case, and it would wait until evidence was presented at trial to

determine whether Mendoza’s statement became relevant. The trial court explained,

“It’s not appropriate until you have a foundation that makes it appropriate and relevant.

Obviously the defendant is the only person that can do that . . . . If he does not testify,

then it never gets in.”

       The following day, the prosecutor again raised the issue of prior excessive force

allegations against Davis. The prosecutor explained that he wanted to be the person to

ask Davis about the allegations, if the evidence were deemed admissible. Thus, the

prosecutor asked the court to make a determination as to whether the evidence would be

admissible pursuant to Evidence Code section 352. The prosecutor argued evidence of

the prior incident would be improper character evidence.


                                             16
       Defendant argued the evidence “goes specifically to negate elements of the

offense itself,” because it would show Davis was not lawfully executing his duties.

Further, defendant asserted the evidence supported an assertion of self-defense on the

part of defendant. Defendant asserted he should be permitted to cross-examine Davis

on the prior allegation of excessive force.

       The trial court did not change its prior decision. The court explained it could not

know if the evidence was relevant until defense evidence was presented at trial. The

trial court said, “Once again, no motion in limine, no decision on the evidence at this

time until the case plays itself out, and the issue raises itself. So sometimes in limines

don’t get granted, and we just wait and see what the evidence shows. Sorry.”

       Several days later, defense counsel asked the trial court to clarify its ruling.

Defense counsel asked whether she could cross-examine Davis about Mendoza’s

excessive force allegation. The trial court responded, “Well, my tentative ruling is I

don’t see how it’s going to be relevant to this case.” Defense counsel argued the

evidence was relevant because it negated elements of a charged offense. Defense

counsel then said, “But if the Court is going to rule it’s not admissible, I just want to

know so I do not get into it.” The trial court clarified, “If time passes and it becomes

obvious it’s important, I get to change my mind.” Defense counsel responded, “Okay.”

       After Davis completed his testimony, defense counsel again moved to present

Mendoza’s testimony. Counsel argued Davis denied ever using force against a person

who was not using force against him. Counsel asserted Mendoza’s testimony would

impeach Davis and negate elements of a charged offense. Defense counsel asserted


                                              17
Mendoza should be allowed to testify regardless of whether defendant testified. The

trial court responded, “Same ruling. I think not.” The trial court explained the evidence

was irrelevant.

              2.     ANALYSIS

       Defendant contends the trial court erred by not admitting evidence of Mendoza’s

prior abuse allegations against Davis unless defendant testified. The People focus their

argument on harmless error, arguing defendant has failed to show a different outcome

would have likely occurred if Mendoza’s allegations had been presented at trial. We

conclude the alleged error was harmless.

       A trial court “in its discretion may exclude evidence if its probative value is

substantially outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, of confusing

the issues, or of misleading the jury.” (Evid. Code, § 352.) “‘A trial court’s exercise of

discretion in admitting or rejecting evidence pursuant to Evidence Code section 352

“will not be disturbed on appeal unless there is a manifest abuse of that discretion

resulting in a miscarriage of justice.” [Citation.]’ [Citation.]” (People v. Thomas

(2011) 51 Cal.4th 449, 485.)

       Since the People focus their argument on harmless error, we will assume the trial

court erred by not permitting defendant to present evidence of Mendoza’s prior abuse

allegations against Davis. Therefore, we must consider if the error was harmless.

Where a “trial court’s ruling did not constitute a refusal to allow [a] defendant to present

a defense, but merely rejected certain evidence concerning the defense . . . the proper


                                            18
standard of review is that enunciated in People v. Watson [(1956)] 46 Cal.2d 818, 836.

[Citation.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1325 (Bradford).)

       In the instant case, defendant presented photographs of his body and details of

the injuries he received, including the fact that he was hospitalized. Defendant

questioned Davis about Davis’s past use of excessive force. Additionally, the trial court

instructed the jury that defendant had the right to defend himself against an officer’s use

of unreasonable or excessive force. (CALCRIM No. 2670.) Since defendant was able

to present his defense, but was denied a certain piece of evidence concerning that

defense, we apply the Watson standard. Under the Watson standard, we must consider

whether it is reasonably probable the verdict would have been more favorable to

defendant if the trial court had admitted evidence of Mendoza’s prior abuse allegations

against Davis. (Bradford, supra, 15 Cal.4th at p. 1325.)

       We conclude it is not reasonably probable a result more favorable to defendant

would have occurred but for the trial court’s error, because the evidence supported a

finding that defendant resisted Davis prior to the fight in the residential backyard.

Defendant could have been found guilty of resisting Davis based upon defendant

running away from Davis when Davis was attempting to handcuff defendant. The

evidence reflects Davis started placing defendant’s hands behind his back, but defendant

pulled his arms from Davis’s grasp, shoved the deputy, and then ran down the street.

Davis chased after defendant.




                                            19
       Accordingly, even if defendant had presented evidence of Mendoza’s allegations

against Davis, it is not reasonably probable a more favorable result would have

occurred, because Davis had not used any force at the time defendant could have been

found to have completed the charged offense. Thus, we conclude any error was

harmless.

       C.     EVIDENCE OF PRIOR ACT OF RESISTING ARREST

              1.     PROCEDURAL HISTORY

       Prior to the start of trial, the prosecutor moved to present evidence of defendant’s

prior act of resisting arrest, wherein four deputies were needed to place him in

handcuffs. (Evid. Code, § 1101, subd. (b).) The prosecutor asserted the evidence was

relevant to show defendant’s intent and lack of mistake. In the trial court’s tentative

ruling, it stated the evidence would be admissible because it is relevant to show

defendant was not mistaken about Davis being a law enforcement officer. The trial

court tentatively concluded the evidence was admissible for “two bases, content and

lack mistake.” We infer “content” means “intent.”

       Defendant argued the prior offense evidence was not relevant to prove intent

because the charged offenses were general intent crimes. As to mistake, defendant

argued the evidence was not relevant because the defense was not raising mistake as an

issue. The trial court responded that defendant put every element of the offense at issue

by pleading not guilty, and therefore the trial court could not limit the prosecutor by the

issues defendant chose to make larger than others.




                                            20
       Defendant argued the prior offense was factually dissimilar from the charged

offense because (1) the prior offense was “ten years old,” and (2) the crimes involved

different deputies. The trial court ruled the prior offense evidence was admissible.

              2.     ANALYSIS

       Defendant contends the trial court erred by admitting evidence of his prior act of

resisting arrest. We disagree.

       “Evidence of prior uncharged acts is inadmissible to prove the defendant’s bad

character, but may be admitted if relevant to prove motive, opportunity, intent,

preparation, plan, knowledge, identity, and absence of mistake or accident, among other

facts. [Citations.]” (People v. Lopez (2011) 198 Cal.App.4th 698, 714.) “‘The trial

court has the discretion to admit evidence of crimes committed by a defendant other

than the one for which he is charged, if such evidence is relevant to prove some fact at

issue, and if the probative value of the evidence outweighs its prejudicial effect.

[Citation.] “When reviewing the admission of evidence of other offenses, a court must

consider (1) the materiality of the fact to be proved or disproved, (2) the probative value

of the other crime evidence to prove or disprove the fact, and (3) the existence of any

rule or policy requiring exclusion even if the evidence is relevant,”’” such as Evidence

Code section 352. (People v. Spector (2011) 194 Cal.App.4th 1335, 1372-1373.) We

review the trial court’s evidentiary ruling for abuse of discretion. (Id. at p. 1373.)




                                             21
       We begin by considering the issue of materiality. Prior to the start of trial, while

arguing against the introduction of the prior crimes evidence, defendant said he planned

to rely on a theory of self-defense. In closing arguments defendant argued a theory of

self-defense. In order to be acquitted on a theory of self-defense, a defendant must

prove he reasonably believed that he was in imminent danger of suffering bodily injury

and reasonably believed that the immediate use of force was necessary to defend against

that danger. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)

       By arguing a theory of self-defense, defendant made his state of mind a disputed

issue. Whether defendant reasonably believed he needed to defend himself was a

material fact that the prosecution was required to disprove in order for the jury to find

defendant guilty of the charged crimes. Accordingly, the prior offense evidence related

to a material fact—defendant’s state of mind.

       Second, we address the probative value of the prior offense evidence. “The least

degree of similarity (between the uncharged act and the charged offense) is required in

order to prove intent. [Citation.] ‘[T]he recurrence of a similar result . . . tends

(increasingly with each instance) to negative accident or inadvertence or self-defense or

good faith or other innocent mental state, and tends to establish (provisionally, at least,

though not certainly) the presence of the normal, i.e., criminal, intent accompanying

such an act . . . .’ [Citation.]” (People v. Ewoldt (1994) 7 Cal.4th 380, 402, italics

added.)




                                             22
      The prior offense evidence reflects that in July 2000, as Deputy Williamson

began to pat-down defendant, defendant turned, raised an elbow, and then ran away.

Williamson chased after defendant, but was unable to locate him. In August 2000,

Deputy Albaran stopped his patrol car near defendant and shined a spotlight on him;

defendant turned around and ran into an apartment. In the current case, in March 2010,

as Davis was placing defendant’s hands behind his back, defendant pulled his arms from

Davis’s grasp, shoved the deputy, and then ran down the street. Davis chased after

defendant in his patrol vehicle and then on foot once defendant ran through a residential

backyard.

      The prior offenses are similar to the charged offense because they all involve

defendant running away from a deputy during the initial contact, and appearing to be

under the influence of a controlled substance. In July 2000, defendant appeared to be

under the influence of a controlled substance. In August 2000, four officers were

needed to place defendant in handcuffs. In the current case, defendant tested positive

for amphetamines, and two deputies were needed to place defendant in handcuffs.

      The current case concerns defendant’s third time running away from an officer

during the first moments of contact. The prior offense evidence is probative because it

tends to negate defendant’s claim that he was acting in self-defense when shoving Davis

and running away, and it tends to prove defendant had a criminal mindset in committing

the charged acts—not an innocent mindset of self-defense.




                                           23
       Third, we consider the possible prejudicial effect of the evidence. Prior offense

evidence is prejudicial when it requires an undue consumption of time, or creates a

substantial danger of confusing the issues or of misleading the jury. (People v. Leon

(2008) 161 Cal.App.4th 149, 168.) The prior crime evidence was presented via the

testimony of two witnesses. Since there were only two witnesses, the prior offense

evidence was not a danger for consuming a great deal of time.

       As to confusing or misleading the jury, the crimes occurred 10 years apart, and

the deputies involved in the July 2000, August 2000, and March 2010 incidents all

testified. Thus, it should have been clear to the jury that the incidents were separate due

to the lapse in time and different deputies involved. As a result, there was not a

substantial risk of the jury being confused or misled by the prior crime evidence. In

sum, the trial court’s decision to admit the prior crime evidence was within reason.

Therefore, we conclude the trial court did not err.

       Defendant contends the trial court erred because it failed to weigh the prejudicial

effect of the prior offense evidence against the probative value of the evidence. During

the discussion about admitting the evidence, the trial court asked the attorneys if they

had read People v. Ewoldt, supra, 7 Cal.4th 380, because it contained an “[e]ighteen-

page explanation of [Evidence Code section] 1101 and how all of it plays together by

[the] California Supreme Court.” Thus, the trial court was familiar with the case law

related to prior crimes evidence. Nevertheless, the fact is that the record is silent about

the trial court’s views on the prejudicial effect of the prior offense evidence. We do not

assume there is an error when the record is silent; rather, we presume the trial court was


                                             24
aware of and followed the applicable law. (People v. Brown (2007) 147 Cal.App.4th

1213, 1229.) Thus, we find defendant’s argument to be unpersuasive, because we must

presume the trial court followed the law.

         Next, defendant asserts the trial court erred because it incorrectly believed it had

to allow the People to present the prior offense evidence due to defendant pleading not

guilty and placing every element of the offense at issue. Defendant’s argument is not

persuasive because this court reviews rulings, not the reasons for the rulings, and

therefore, we will not find an error if the ruling is correct on any basis. (People v. Geier

(2007) 41 Cal.4th 555, 582.) As set forth ante, there was a reasonable basis for the trial

court’s evidentiary ruling.

         D.     DAVIS’S BELIEFS ABOUT DEFENDANT

                1.     PROCEDURAL HISTORY

         During Davis’s direct examination the following exchange took place:

         “[Prosecutor]: What are you thinking—as you’re understanding the scene and

understanding what the call was about—what are you thinking at this point?

         “[Davis]: First off that—through my head—is probably burglarizing something

[sic].

         “[Defense Counsel]: Objection, speculative. Move to strike.

         “The Court: Overruled.

         “[Prosecutor]: You’re thinking this could possibly be a burglary suspect?

         “[Davis]: Correct.




                                              25
       “[Prosecutor]: What about the person or the description that you heard about this

person led you to believe that this could be a burglary suspect?

       “[Davis]: Well, the pillow[case] primarily. People will burglarize houses, take

pillow[cases] from the homes and put the stolen property inside pillow[cases]. So that

was the first thought that went through my head.”

       As Davis’s testimony continued, the following exchange occurred:

       “[Prosecutor]: Would you interact with somebody differently who is on parole

as opposed to somebody who is not on parole?

       “[Davis]: I would.

       “[Prosecutor]: Describe how that works.

       “[Davis]: Well, when someone’s on parole, you know they have been to state

prison. I would treat someone who I know has been to state prison—I would treat them

differently than someone that didn’t, just because, you know, if they’ve been to state

prison that it’s a hard life.

       “[Defense Counsel]: Objection. Speculation, foundation. Move to strike.

       “The Court: Overruled.

       “[Prosecutor]: Are you a little more cautious with people on parole?

       “[Davis]: I am.

       “[Prosecutor]: Are you concerned for your safety more so dealing with

somebody on parole as opposed to somebody who is not on parole?

       “[Davis]: Yes.”




                                           26
              2.     ANALYSIS

       Defendant contends the trial court erred by permitting Davis to testify about his

beliefs that defendant was (1) likely trying to commit a burglary, and (2) an especially

dangerous person due to having been incarcerated. Defendant asserts the evidence was

“based on speculation and lacked foundation.”5 We disagree.

       “If a witness is not testifying as an expert, his testimony in the form of an

opinion is limited to such an opinion as is permitted by law, including but not limited to

an opinion that is: (a) Rationally based on the perception of the witness; and (b) Helpful

to a clear understanding of his testimony.” (Evid. Code, § 800.) “The admission of a

layperson’s opinion testimony lies in the discretion of the trial court and will not be

disturbed ‘“unless a clear abuse of discretion appears. [Citation.]”’ [Citation.]”

(People v. Brown (2001) 96 Cal.App.4th Supp. 1, 33.)

       Section 69 requires the prosecutor to prove the deputy was “performing any duty

imposed upon such officer by law.” Section 148, subdivision (a)(1), requires the

prosecutor to prove the deputy was discharging or attempting “to discharge any duty of

his or her office or employment.” Davis opined about defendant likely trying to commit

a burglary because that testimony explained why Davis felt the need to stop and speak

       5  The People assert defendant forfeited this argument because on appeal he is
asserting the trial court erred due to the evidence inflaming the jury, which was not the
basis for the trial court objection. The People appear to be mixing defendant’s error
argument with his prejudice argument. On appeal, defendant is asserting the trial court
erred by admitting the evidence because it was speculative and lacked foundation, and
that the error was prejudicial because the evidence inflamed the jury. Therefore, we
disagree that defendant forfeited this argument for appeal because the error argument is
the same as that raised below.


                                            27
to defendant. Davis explained that his opinion was based on his perception of the

situation, e.g., defendant was carrying a pillowcase and pillowcases are often used to

carry items out of houses. Thus, Davis’s burglary opinion could reasonably be admitted

as a layperson’s opinion testimony because (1) it was rationally based on Davis’s

perception, and (2) it clarified the material issue of why Davis felt stopping defendant

was a part of his job duties.

       As to Davis’s opinion that parolees are more dangerous people, Davis was

explaining why he performs his job duties in a particular manner—why he is more

cautious around parolees. Davis’s testimony helped to clarify the material issue of

whether Davis was lawfully performing his duties, because it provided context to the

interaction between Davis and defendant. If the testimony jumped from defendant

walking down the street to Davis patting down defendant, then the jury likely would

have been confused. The jury needed to understand that Davis believed defendant may

have been planning a burglary, and that Davis felt the need to pat-down defendant, due

to parolees being a more dangerous class of people. In sum, the trial court had a

reasonable basis for overruling defendant’s objections, and therefore we conclude the

court did not abuse its discretion.

       Defendant asserts the trial court erred because witnesses may only testify to

matters within their personal knowledge. (Evid. Code, § 702, subd. (a).) Defendant

contends Davis’s opinion testimony was problematic because it was not based solely on

Davis’s observations, but also on the information Davis received from the dispatcher.

Defendant’s argument is not persuasive because Davis testified that his opinion was


                                            28
based upon observing the pillowcase, in that the pillowcase immediately made him

believe defendant was plotting a burglary. Davis personally saw defendant walking

with a pillowcase. Accordingly, Davis’s testimony was based on events he personally

observed, i.e., defendant walking down the street with a pillowcase.

       E.     PROSECUTORIAL MISCONDUCT

              1.     PROCEDURAL HISTORY

       During closing argument, defense counsel said, “And for as violent or crazy of a

struggle [as] this appeared to be, [Davis] and Deputy Broda walked out unscathed, but

[defendant] ended up in the hospital for three days. So I think it’s pretty clear what did,

in fact, happen. And it was very much excessive force.”

       At the beginning of the prosecutor’s rebuttal closing argument, he said,

“[Defendant] was in the hospital for an elevated heart rate. And what causes elevated

heart rates? I submit to you folks, swallowing a gram of methamphetamine. That’s

why he was in the hospital. You are going to see the pictures. Is that somebody who

got the hell beat out of him? Somebody with ‘Try me’ tattooed on his eyelids? Try

me?” At that point, defense counsel objected, saying, “Objection, improper—” The

trial court overruled the objection. The prosecutor resumed his argument saying, “Try

me. That’s this defendant. Try me.”

              2.     ANALYSIS

       Defendant contends the prosecutor committed misconduct by arguing that a

person with the words “try me” tattooed on his eyelids was not a victim of excessive




                                            29
force. Defendant asserts that portion of the prosecutor’s argument was irrelevant and

inflammatory. We disagree.

       “Under the federal Constitution, a prosecutor’s behavior deprives a defendant of

his rights ‘when it comprises a pattern of conduct “so egregious that it infects the trial

with such unfairness as to make the conviction a denial of due process.”’ [Citations.]

Conduct that falls short of that standard ‘may still constitute misconduct under state law

if it involves the use of deceptive or reprehensible methods to persuade the trial court or

the jury.’ [Citations.]” (People v. Gamache (2010) 48 Cal.4th 347, 370-371.)

       “[A] prosecutor is given wide latitude during argument. The argument may be

vigorous as long as it amounts to fair comment on the evidence, which can include

reasonable inferences, or deductions to be drawn therefrom. . . . [Citation.] A

prosecutor may vigorously argue his case[.] [Citations.] To prevail on a claim of

prosecutorial misconduct based on remarks to the jury, the defendant must show a

reasonable likelihood the jury understood or applied the complained-of comments in an

improper or erroneous manner. [Citation.]” (People v. Gamache, supra, 48 Cal.4th at

p. 371, internal quotations omitted.)

       Defendant’s tattoos were part of the photographs submitted as evidence. The

prosecutor commented on defendant’s tattoos when explaining to the jury that it was

unlikely defendant was in the hospital for three days due only to the actions of the

deputies. The prosecutor believed that if a person with “try me” tattooed on his eyelids

were put in the hospital for three days due to a fight, then the other people involved in

the fight would not have walked away so easily. The prosecutor’s point was that


                                             30
defendant was in the hospital due to ingesting a gram of methamphetamine—not due to

excessive brutality on the part of the deputies.

       In commenting on defendant’s tattoos, the prosecutor was citing evidence and

giving his interpretation of that evidence. Therefore, the prosecutor’s comments were

not misconduct, because it is unlikely that the jury understood the comments to be

anything other than the prosecutor expressing his belief that a person with “try me”

tattooed on his eyelids would not be in a hospital for three days due solely to a fight,

when the other people involved in the fight walked away relatively unscathed.

       Defendant asserts the prosecutor committed misconduct because he told the jury

to use defendant’s tattoos as propensity evidence—evidence that defendant “is the kind

of person who resists arrest and needs to be dealt with by extreme methods.” We are

reviewing the argument to determine whether there is a reasonable likelihood the jury

applied the comments in an improper manner. The context of the prosecutor’s

statements causes defendant’s interpretation of the statements to be unreasonable. The

prosecutor discussed defendant’s tattoos to explain why defendant was in the hospital

for three days, and how it was unlikely that defendant was in the hospital due solely to

the fight with the deputies. Defendant’s interpretation of the prosecutor’s statements

appears to lift the statements entirely out of context, which is not reasonable. Thus, we

find defendant’s argument to be unpersuasive.




                                            31
       F.     INITIAL DETENTION INSTRUCTION

              1.     PROCEDURAL HISTORY

       The trial court instructed the jury with CALCRIM No. 2670, which provides, in

relevant part: “A peace officer is not lawfully performing his or her duties if he or she

is unlawfully arresting or detaining someone or using unreasonable or excessive force

when making or attempting to make an otherwise lawful arrest or detention. [¶] A

peace officer may legally detain someone if the person consents to the detention or if:

[¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the

person to be detained has been, is, or is about to be involved in activity relating to

crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the

same suspicion. [¶] Any other detention is unlawful. [¶] In deciding whether the

detention was lawful, consider evidence of the officer’s training and experience and all

the circumstances known by the officer when he or she detained the person.”

              2.     ANALYSIS

       Defendant asserts the jury was incorrectly instructed with CALCRIM No. 2670

because there is not substantial evidence supporting the theories that defendant

consented to the detention or that Davis had a reasonable suspicion defendant was

involved in criminal activity. We disagree.

       “‘[A] trial judge must only give those instructions which are supported by

substantial evidence[.]’ [Citations.]” (People v. Larsen (2012) 205 Cal.App.4th 810,

823.) “Substantial evidence in this context ‘“is ‘evidence sufficient “to deserve

consideration by the jury,” not “whenever any evidence is presented, no matter how


                                             32
weak.”’” [Citations.]’ [Citation.]” (Ibid.) We review alleged instructional errors de

novo. (People v. Burch (2007) 148 Cal.App.4th 862, 870.)

       We first address the consent portion of CALCRIM No. 2670. Davis testified that

a person on parole is “still sentenced” and had surrendered his right to search and

seizure. Davis explained, “[I]f you’re on parole you’re subject to search without cause.”

Davis stated that he recognized defendant as an active parolee when defendant was

walking down the street, because defendant’s photograph was included in a binder or

database of active parolees in the Rubidoux area, which Davis frequently reviewed.

After the incident with defendant, Davis verified that defendant was on parole at the

time of the incident. The foregoing is substantial evidence that defendant consented to

being stopped and searched when he accepted the terms of his parole. Thus, the trial

court could properly instruct the jury with CALCRIM No. 2670.

       Second, as to Davis’s reasonable suspicion defendant was involved in

committing a crime, Davis explained his belief that defendant was planning a burglary.

Davis was dispatched following a 911 call from a woman who had a man knock on her

door, ask for an electrical cord for a lawnmower, and who claimed to live next door in a

vacant house. Defendant matched the description of the man who knocked on the

woman’s door, and he was walking down the street where the woman’s house was

located. Defendant was carrying a pillowcase as he walked down the street. Due to the

pillowcase, Davis believed defendant might be planning to burglarize a house because,

“[p]eople will burglarize houses, take pillow[cases] from the homes and put the stolen

property inside pillow[cases].”


                                           33
        The foregoing evidence reflects suspicious behavior on defendant’s part.

Knocking on a person’s door and claiming to live in a vacant house, followed by

walking down the street with a pillowcase, are activities that would cause a reasonable

person to suspect defendant was involved in criminal activity. Thus, the record includes

substantial evidence from which the jury could reasonably conclude Davis suspected

defendant had been or was about to be involved in activity relating to crime, and that a

reasonable officer who knew the same facts would have the same suspicion.

Accordingly, the trial court did not err by instructing the jury with CALCRIM No.

2670.

        G.     SEARCH AND ARREST INSTRUCTION

        Defendant contends the trial court erred by instructing the jury with CALCRIM

No. 2670 because it only gave the jury information about lawful detentions. Defendant

asserts that since he was accused of resisting an officer during a detention and search,

the jury also needed to be instructed on the law related to a proper search. We disagree.

        CALCRIM No. 2673 describes lawful pat-down searches. The bench notes for

CALCRIM No. 2673 read only, “The court may give this instruction on request.” It

does not appear from the record that the defense requested CALCRIM No. 2673.

Nevertheless, to the extent the trial court has a sua sponte duty to instruct with

CALCRIM No. 2673, we conclude an error did not occur in this case.

        As set forth ante, “‘[A] trial judge must only give those instructions which are

supported by substantial evidence . . . .’ [Citations.]” (People v. Larsen, supra, 205

Cal.App.4th at p. 823.) Davis testified that he was placing defendant’s hands behind his


                                             34
back in order to begin the pat-down when defendant “pulled his arms free from

[Davis’s] grasp, shoved [Davis], and ran . . . away.” Thus, Davis was not patting-down

defendant when defendant broke away and ran. Rather, Davis was holding defendant’s

arms behind defendant’s back. Given the foregoing evidence, we conclude the trial

court did not err by not instructing the jury with CALCRIM No. 2673, because a search

was not taking place.

       H.     SECTION 834, SUBDIVISION A

       Defendant asserts the trial court erred by including information about section

834a in the CALCRIM No. 2670 instruction. The portion of CALCRIM No. 2670

defendant is alleging to be erroneous is as follows: “If a person knows, or reasonably

should know, that a peace officer is arresting or detaining him or her, the person must

not use force or any weapon to resist an officer’s use of reasonable force.” (CALCRIM

No. 2670; § 834a.) Defendant asserts this portion of the instruction gives the erroneous

impression that a person may never use force against a law enforcement officer, even in

the situation where the law enforcement officer is conducting an unlawful arrest.

Defendant contends this is problematic because it was undisputed that he used force

against Davis, and therefore this instruction “had the effect of eliminating the lawful

performance element of the resisting charges.” We disagree.

       A defendant has a right to have the jury determine every element of the charged

offenses. (People v. Flood (1998) 18 Cal.4th 470, 480-481.) “We determine whether a

jury instruction correctly states the law under the independent or de novo standard of

review. [Citation.] Review of the adequacy of instructions is based on whether the trial


                                            35
court ‘fully and fairly instructed on the applicable law.’ [Citation.] ‘“In determining

whether error has been committed in giving or not giving jury instructions, we must

consider the instructions as a whole . . . [and] assume that the jurors are intelligent

persons and capable of understanding and correlating all jury instructions which are

given.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to

support the judgment rather than defeat it if they are reasonably susceptible to such

interpretation.’ [Citation.]” (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

       If a trial court includes the section 834a law when instructing the jury about

resisting arrest in a case involving allegations of excessive force, then the trial court

must explain to the jury that the person being arrested “has the right to use reasonable

force to protect himself.” (People v. White (1980) 101 Cal.App.3d 161, 168.) The trial

court can fulfill this duty by instructing the jury on the law of self-defense. (Ibid.)

       In the instant case, the trial court instructed the jury on the law of self-defense

with CALCRIM No. 3470. Additionally, within CALCRIM No. 2670, the trial court

instructed the jury, “If a peace officer uses unreasonable or excessive force while

detaining or attempting to detain a person, that person may lawfully use reasonable

force to defend himself or herself.” Given that the jury was told about defendant’s right

of self-defense in two separate instructions, it is likely the jury understood defendant

had the right to defend himself from excessive force and that he did not have to simply

submit to unlawful force or arrest by the deputy.




                                             36
       The argument presented by defendant isolates one section of CALCRIM No.

2670. We cannot read the instruction in isolation. We must read the instructions as a

whole. In this case, the jury was given plentiful information about the law of self-

defense. Therefore, defendant’s isolation of a few lines from one instruction is not

persuasive because he does not look at the instructions in a holistic manner.

       I.       EX PARTE JURY RESPONSES

                1.   PROCEDURAL HISTORY

       After closing arguments, defendant agreed that he did not need to be present if

the jury submitted a question and everyone agreed on an answer. However, the trial

court said, “If something comes up that’s important like they’re talking about verdicts or

not being able to reach verdicts or something like that, and your attorney wants you

because she wants to hear from you, we’ll get you here. Okay?” Defendant responded,

“Okay.”

       On July 12, 2011, at 2:26 p.m., the jury submitted a question. The jury asked,

“What is the legal definition of ‘use of force and violence?’ (As referenced in element 1

of Count 1)[.]” The trial court contacted trial counsel via telephone, and counsel agreed

with the trial court’s response. The trial court responded, in writing, “Reread my first

instruction.”

       On July 13, 2011, the jury submitted questions at 9:47 a.m., 10:49 a.m., 10:50

a.m., and 2:00 p.m. The trial attorneys were only contacted for purposes of answering

the question posed at 2:00. The comment received at 9:47 a.m. read, “Cannot reach

[unanimous] decision on Count 1 after much deliberation.” The trial court responded,


                                            37
“Keep working.” At 10:49 a.m., the jury asked to hear portions of Davis’s testimony.

The trial court responded, “Ok.” At 10:50 a.m., the jury asked, “What does the law

state about touching an officer who is performing his legal duty? Is breaking free of the

officer considered ‘use of force’ when a person is detained for search?” The trial court

responded, “That is the question.”

       At 2:00, the jury submitted the following question, “#3500 says ‘You must not

find the defendant guilty unless you all agree . . . ’ #3550 states ‘If you are able to reach

a [unanimous] decision on only one or only some of the charges, fill in that verdict form

only . . .’ We cannot come to a [unanimous] decision on Count 1. Therefore do we

complete the ‘Not Guilty’ verdict form for Count 1, or leave blank since we cannot

come to an agreement?” The trial court responded, “Wait—we will talk.”

       After the 2:00 question was received, the trial court contacted the trial attorneys.

The trial attorneys and defendant were present in court when the trial court brought the

jurors into the courtroom. At that point, the jury had reached verdicts on Counts 2 and

3, and submitted the verdict forms to the court’s bailiff. The trial court asked the jury

foreperson about the first question that was submitted. The trial court said, “I think

your first question [was], ‘What does force and violence mean?’” The trial court

explained that it responded with the answer that there is no legal definition and the

ordinary definitions should be applied.




                                             38
       Next, the trial court said the jury submitted a note reflecting it could not reach a

verdict, and the court responded by telling them to continue working. Then the trial

court described the jury’s request for Davis’s testimony to be read back. The court

explained that it authorized the read back. The foreperson confirmed the read back took

place. The trial court then described the note wherein the jury asked if breaking free

from an officer’s grasp is considered use of force. The trial court stated it responded by

telling the jury, “[T]hat’s a question you have to answer.”

       The trial court then reached the jury’s question about CALCRIM No. 3500,

which concerns unanimity. Upon looking at the jury’s question, the trial court asked the

prosecutor if he had a copy of CALCRIM No. 3500 in front of him, which the

prosecutor did not. The trial court read CALCRIM No. 3500 aloud, which concerned

the jury agreeing to the specific act that comprised Count 1. The trial court spoke to the

foreperson, who clarified the jury could not agree on whether defendant’s pushing

Davis’s hands constituted force.

       The jury was split “[n]ine, two, and one,” and had been split in that manner for

approximately one day, with no one changing his or her mind. The trial court asked if

there was anything it could do to assist the jurors. The foreperson responded, just

answering the questions the jury submitted. The foreperson asked for clarification

regarding one of the trial court’s responses. The foreperson asked, “What does the law

say about if an officer has somebody detained, what can a person that’s detained do to

that officer? Can they do anything? Or if they react in any way outside of compliance,




                                             39
that’s what we were—again, is that force? So they willfully pull away without being

instructed to do so by the officer?”

       The trial court clarified that the question concerned the meaning of the term

force. The following exchange then took place:

       “The Court: Force means force. Go back to work.

       “[Foreperson]: We understand that, but that’s not changing the minds of some.

       “The Court: Go back. And force means force. It doesn’t have lots, it does not

have small, it doesn’t have anything. It’s just force. That’s all it is. Is force used? So

you go out and figure out what force means. If you cannot figure out what force means,

we picked 12 people that are not as smart as we thought. Go. Take your notebooks.

We ain’t done folks. Keep working.”

       At that point, the jury left to resume its deliberations. Sixteen minutes later, the

jury returned a verdict for Count 1.

              2.     ANALYSIS

       Defendant asserts the trial court violated his rights of due process and assistance

of counsel by responding to the jury’s questions ex parte. Specifically, defendant

focuses on (1) the 9:47 a.m. comment about not being able to reach a unanimous

verdict, to which the trial court responded, “Keep working”; and (2) the 10:50 a.m.

question about what the term “force” means and whether breaking free from a law

enforcement officer’s grasp could be considered force, to which the trial court

responded, “That is the question.” The People assert (1) defendant waived this issue by




                                             40
not raising it at the trial court, and (2) any error was harmless. We choose to address the

merits of defendant’s argument, and conclude the trial court did not err.

       Section 1138 provides: “After the jury have retired for deliberation, if there be

any disagreement between them as to the testimony, or if they desire to be informed on

any point of law arising in the case, they must require the officer to conduct them into

court. Upon being brought into court, the information required must be given in the

presence of, or after notice to, the prosecuting attorney, and the defendant or his

counsel, or after they have been called.” Thus, a judge is not permitted to have private

communications with the jury unless defendant and the prosecutor have agreed to such

communications. (Bradford, supra, 154 Cal.App.4th at p. 1413.) These private

communications are generally not permitted because a defendant needs to be given the

opportunity to (1) evaluate the proposed judicial response to a jury question, (2) make

an objection to the proposed response, and (3) suggest a different response that may be

more favorable to the defendant. (Ibid.)

       “When the jury’s inquiry arises in a situation where ‘counsel could have taken

some action on the defendant’s behalf to amplify, clarify, or modify the supplemental

instruction or procedure,’ a ‘court’s failure to give notice or afford an opportunity to

respond [to the jury’s inquiry] . . . constitute[s] statutory as well as constitutional error.’

[Citation.]” (Bradford, supra, 154 Cal.App.4th at p. 1413.)




                                              41
       The comment received at 9:47 a.m. read, “Cannot reach [unanimous] decision on

Count 1 after much deliberation.” The trial court responded, “Keep working.” When

the trial court gathered defendant, defense counsel, the prosecutor, and the jury in the

courtroom, at approximately 2:30 p.m., the foreperson said the jury was still deadlocked

on Count 1 and no one had changed their minds since they started deliberating the

previous day. The trial court then discussed the issue with the jury while defendant,

defense counsel, and the prosecutor were present. Thus, while the trial court may have

engaged in an ex parte communication with the jury by responding “keep working,” the

court ultimately spoke to the jury about the problem while counsel and defendant were

present, and before any jurors had changed their minds about the situation. During the

conversation, defense counsel did not object or raise any concerns about the trial court’s

remarks. Accordingly, we conclude the trial court did not err, because to the extent any

error may have occurred with the note to the jury, the trial court cured the mistake by

gathering everyone together for a discussion before any jurors changed their positions

regarding Count 1.

       The same reasoning applies to the 10:50 a.m. question in which the jury asked,

“What does the law state about touching an officer who is performing his legal duty? Is

breaking free of the officer considered use of force when a person is detained for

search?” The trial court responded in writing, “That is the question.” When the trial

court gathered everyone together in the courtroom, the foreperson again asked whether

defendant breaking away from Davis constituted force. As set forth ante, a

conversation took place regarding force having a plain, non-legal meaning. During that


                                            42
conversation, defense counsel did not object or make any suggestions as to how the trial

court could better answer the jury’s question.

       So again, given that the jurors were still deadlocked on Count 1 in the same

positions they had been since deliberations began, any error the trial court made by

responding in writing to the jury was cured by gathering everyone together in the

courtroom for a discussion of the same question raised in the 10:50 a.m. note. Thus, we

conclude the trial court did not err, because any error was fixed below.

       Defendant’s argument focuses on the trial court’s written responses to the jury’s

questions, and ignores the conversation that took place with everyone present in the

courtroom. Given that the trial court discussed the issues in the jury’s notes with

everyone present in the courtroom, prior to any jurors changing their minds about Count

1, we find defendant’s argument to be unpersuasive.

       Next, defendant asserts counsel did not have an opportunity to object or make a

suggestion about the trial court’s responses to the jury because the trial court began

speaking to the foreperson as soon as everyone was gathered together in the courtroom.

Defendant asserts his counsel should have been given the trial court’s proposed answers

to the jury’s questions, and anything less is a violation of his rights. We do not find this

argument to be persuasive because when the trial court gathered everyone together in

the courtroom there was a conversation about the status of the jury’s deliberations—

such as where they stood on all three counts—prior to the court delving into the jury’s

questions. If defense counsel wanted to speak to the trial court outside the presence of

the jury, there was ample opportunity to raise an objection or request a chambers


                                            43
conference. The trial court did not blindside counsel by immediately responding to the

jury’s questions the moment everyone gathered in the courtroom. As a result, we find

defendant’s argument to be unpersuasive.

       J.       COERCING THE JURY

       Defendant contends the trial court erred by coercing the jury into reaching a

verdict for Count 1.6 The People assert defendant has failed to preserve this claim of

judicial misconduct and that the trial court’s comments were not coercive. We choose

to address the merits of defendant’s contention because the issue is easily resolved.

       Section 1140 provides: “Except as provided by law, the jury cannot be

discharged after the cause is submitted to them until they have agreed upon their verdict

and rendered it in open court, unless by consent of both parties, entered upon the

minutes, or unless, at the expiration of such time as the court may deem proper, it

satisfactorily appears that there is no reasonable probability that the jury can agree.”

       Our Supreme Court has provided further insight into this rule: “‘Although the

court must take care to exercise its power without coercing the jury into abdicating its

independent judgment in favor of considerations of compromise and expediency

[citation], the court may direct further deliberations upon its reasonable conclusion that

such direction would be perceived “‘as a means of enabling the jurors to enhance their

understanding of the case rather than as mere pressure to reach a verdict on the basis of




       6    The procedural history for this issue is set forth ante; we do not repeat it here.


                                               44
matters already discussed and considered.’”’ [Citation.]” (People v. Bell (2007) 40

Cal.4th 582, 616.)

       In the instant case, the trial court discussed the meaning of the term “force” with

the jurors prior to returning them to their deliberations. The trial court seemed to

suggest that the jurors were overcomplicating the term—looking for a legal definition

when the ordinary definition applied. The trial court reminded the jury of the question

they needed to answer, “Is force used?” Thus, the trial court’s comments were not

coercing the jury to reach a verdict. Notably, the trial court took great care to not have

the votes revealed as far as guilt or innocence were concerned. Thus, the trial court had

no insight as to whether the 9-2-1 split was leaning toward guilt or innocence. The trial

court simply wanted the jury to continue its discussions with a greater understanding of

the term “force” and the task at hand.

       Moreover, the jury’s deliberations began at 11:24 a.m. on July 12 and ended at

4:00 p.m. that day. The next day, deliberations began at 9:40 a.m. and the conversation

with the trial court took place at 2:34 p.m. Thus, assuming the jurors never took a

break, they had been deliberating for only nine and a half hours when the trial court

instructed them to resume deliberations. Our Supreme Court has upheld trial courts’

denials of mistrials after fruitless deliberations lasting longer than 10 hours. (People v.

Bell, supra, 40 Cal.4th at p. 617.) Accordingly, the trial court did not return the jury to

lengthy deliberations that had been going on for multiple full days. In sum, we

conclude the trial court did not coerce the jury. Rather, the trial court enhanced the

jury’s understanding of the case and returned them to their deliberations.


                                             45
       Defendant contends the trial court coerced the jury because the jury understood

on the first day of deliberations what the term “force” meant, and was at an impasse

over whether defendant’s conduct qualified as force. Defendant argues, “[T]he court’s

telling the jury to ‘go out and figure out what force means’ was nothing more than a

demand that the jurors agree on whether force was used.” Defendant combines this

with the trial court’s comments about the jurors not being terribly smart if they did not

understand the word “force,” and concludes the trial court “went beyond coercion” and

was “bullying” the jury.

       Defendant’s argument is not persuasive because during the discussion in the

courtroom, the foreperson asked the trial court, “What does the law say about if an

officer has somebody detained, what can a person that’s detained do to that officer?

Can they do anything? Or if they react in any way outside of compliance, that’s what

we were—again, is that force? So they willfully pull away without being instructed to

do so by the officer.” (Italics added.) The trial court’s response clarified that there was

no special legal definition of the term, and it was the jury’s task to decide if the facts

presented amounted to “force” under the common meaning of the term. Thus, the trial

court clarified an issue in the case for the jury and returned them to their deliberations.

The trial court did not coerce or bully the jury.

       K.     CUMULATIVE ERROR

       Defendant asserts the foregoing 10 alleged errors combined to create a denial of

due process. Thus far we have concluded the trial court and prosecutor did not err.

Therefore, defendant’s “cumulative effect” argument is unpersuasive. (See In re Reno


                                             46
(2012) 55 Cal.4th 428, 482 [rejecting a cumulative effect argument where no errors

were found].)

       L.       LESSER INCLUDED OFFENSE

       Defendant asserts his Count 2 conviction for violating section 148, subdivision

(a)(1) must be reversed because it is a lesser included offense of section 69, which he

was convicted of in Count 1, and the two convictions are based upon the same conduct.

       The People dispute that section 148, subdivision (a)(1) is a lesser included

offense of section 69, and fault defendant for relying on the prosecutor’s closing

argument and jury instructions in making his point about the lesser included offense—as

opposed to the statutory elements or charging document.

       “The definition of a lesser necessarily included offense is technical and relatively

clear. Under California law, a lesser offense is necessarily included in a greater offense

if either the statutory elements of the greater offense, or the facts actually alleged in the

accusatory pleading, include all the elements of the lesser offense, such that the greater

cannot be committed without also committing the lesser.” (People v. Birks (1998) 19

Cal.4th 108, 117.)

       For reference we provide the language of the two statutes. Section 69 provides:

“Every person who attempts, by means of any threat or violence, to deter or prevent an

executive officer from performing any duty imposed upon such officer by law, or who

knowingly resists, by the use of force or violence, such officer, in the performance of

his duty, is punishable” by a fine, imprisonment, or both.




                                             47
       Section 148, subdivision (a)(1), provides: “Every person who willfully resists,

delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge

any duty of his or her office or employment, when no other punishment is prescribed,

shall be punished by a fine,” imprisonment, or both.

       There is a split of authority in the Courts of Appeal as to whether resisting a

peace officer (§ 148, subd. (a)(1)) is a lesser included offense of resisting an executive

officer (§ 69). (People v. Lacefield (2007) 157 Cal.App.4th 249, 257 (Lacefield);

People v. Belmares (2003) 106 Cal.App.4th 19, 24 (Belmares), disapproved on another

ground in People v. Reed (2006) 38 Cal.4th 1224, 1228.) We conclude that we are able

to reconcile the reasoning of the two seemingly opposing cases, because the alleged

split appears to have occurred due to the two different offenses included in section 69.

(See In re Manuel G., supra, 16 Cal.4th at p. 814 [discussing the two different

offenses].)

       In Lacefield, the Second District, Division Eight, focused on the second offense

in section 69—resisting an executive officer—and concluded that resisting a peace

officer (§ 148, subd. (a)(1)) is a lesser included offense of resisting an executive officer

(§ 69). (Lacefield, supra, 157 Cal.App.4th at p. 255-257.) The court applied the

statutory elements test—comparing the elements of section 148, subdivision (a)(1), with

the elements in the second half of section 69—and determined that “it appears to be

impossible to violate the second type of offense in section 69 without also violating

section 148(a)(1), which means that section 148(a)(1) is a lesser included offense of the

second type of offense in section 69.” (Lacefield, at p. 257) The court explained that


                                              48
both statutes included the same temporal element, because the officer had to be

performing an official duty when the crime occurred. (Ibid.) Additionally, both statutes

“require resistance, although section 148(a)(1) also refers to delay or obstruction.”

(Ibid.)

          In Belmares, District Five focused on the first portion of section 69—deterring or

preventing an executive officer from performing an official duty—and concluded that

resisting a peace officer (§ 148, subd. (a)(1)) is not a lesser included offense of deterring

an executive officer. (Belmares, supra, 106 Cal.App.4th at p. 24.) When the reviewing

court applied the statutory elements test, it concluded that the temporal elements of

sections 69 and 148 are different. (Belmares, at p. 24.) The court explained that “one

can deter an officer’s duty in the future (§ 69) without resisting the officer’s discharge

or attempted discharge of a duty at that time.” (Ibid.)

          We conclude that the reasoning of both Lacefield and Belmares is correct, i.e.,

that resisting a peace officer (§ 148, subd. (a)(1)) is not a lesser included offense of the

first crime defined in section 69—deterring an executive officer (Belmares); however,

resisting a peace officer (§ 148, subd. (a)(1)) is a lesser included offense of the second

crime defined in section 69—resisting an executive officer (Lacefield).

          In the instant case, defendant was charged with both deterring and resisting

Deputy Davis. However, the jury was instructed only on the law of resisting an

executive officer by force or violence. (CALCRIM No. 2652.) Accordingly, we

conclude defendant was found guilty of the second type of offense in section 69.

Therefore, we follow the reasoning of Lacefield and conclude that section 148,


                                              49
subdivision (a)(1), is a lesser included offense of the crime for which defendant was

convicted (§ 69).

       Defendant asserts he could not be convicted of both the greater and lesser offense

because “the exact same conduct” formed the basis for the two convictions. “California

law prohibits convicting a defendant of two offenses arising from a single criminal act

when one is a lesser offense necessarily included in the other.” (People v. Montoya

(2004) 33 Cal.4th 1031, 1033.) The prosecution’s closing argument theory of the case

was that defendant’s act of shoving Davis’s hands away constituted the section 69

charge, while defendant’s act of running away from Davis constituted the section 148

charge. However, in the section 148 jury instruction, the jury was informed of the

following prosecution theory concerning the section 148 charge: “The People allege

that the defendant resisted, or obstructed, or delayed Deputy Davis by doing the

following: forcefully resisting arrest, violently resisting arrest, running away,

swallowing methamphetamine.”

       Given the language of the jury instruction, the two crimes overlap. We cannot

distinguish the section 148 criminal act from the section 69 criminal act because the jury

instruction for section 148 went beyond defendant’s act of running away and included

defendant’s acts of “violently resisting arrest,” which would encompass the acts of

pushing the deputy’s hands away. Given this instruction, we must conclude the two

crimes arose from the same criminal act. Therefore, defendant cannot be convicted of

both the greater and lesser offense. (People v. Ramirez (2009) 45 Cal.4th 980, 984; see

also People v. Villa (2007) 157 Cal.App.4th 1429, 1434 [“[A] defendant cannot be


                                            50
convicted of both robbery and theft arising from the same course of conduct”].)

Accordingly, defendant’s section 148 conviction must be reversed.

       Defendant was sentenced to a concurrent county jail term of 180 days for the

section 148 conviction. The section 148 conviction does not appear on the second

amended abstract of judgment, so the document does not need to be amended due to our

disposition.

       The People assert the trial court did not err because (1) the statutory elements test

reflects section 148, subdivision (a)(1) is not a lesser included offense of section 69, and

(2) defendant’s “act of running was entirely distinct from the force he applied at the

beginning of the encounter or later when confronted in the backyard.” As set forth ante,

the statutory elements test reflects section 148, subdivision (a)(1) is a lesser included

offense of the second crime defined in section 69—resisting an executive officer. As to

the second assertion, the jury instruction for the section 148 offense did not limit the

theory of the charge to defendant’s act of running—it included his acts of violent

resistance, therefore, we cannot conclude that the section 148 conviction consists of a

separate criminal act.

       M.      MULTIPLE PUNISHMENTS

       Defendant contends the trial court erred by not staying the sentence for his

section 148, subdivision (a)(1) conviction, because that conviction involved the same

conduct and objective as the section 69 conviction (§ 654). Since we have reversed

defendant’s section 148 conviction, this contention is moot as we can offer no further

relief. (People v. Gregerson (2011) 202 Cal.App.4th 306, 321.)


                                             51
       N.     PITCHESS MOTION

       In defendant’s opening brief, he requests this court review the reporter’s and

clerk’s transcripts of the in-camera Pitchess hearing, and then reverse his convictions if

we find “undisclosed discoverable information which would have had a reasonable

probability of changing the outcome of the trial.” The People do not object to this court

reviewing the transcripts of the Pitchess hearing. We find nothing requiring reversal of

defendant’s convictions.

       The statutory scheme for Pitchess motions is set forth in Evidence Code sections

1043 through 1047 and Penal Code sections 832.5, 832.7, and 832.8. When a trial court

decides to review a peace officer’s records in chambers, the trial court should “disclose

to the defendant ‘such information [that] is relevant to the subject matter involved in the

pending litigation.’ [Citation.] [¶] There are several limitations on disclosure. The

trial court ‘shall exclude from disclosure: [¶] (1) Information consisting of complaints

concerning conduct occurring more than five years before the event or transaction

which is the subject of the litigation in aid of which discovery or disclosure is sought.

[¶] (2) In any criminal proceeding the conclusions of any officer investigating a

complaint filed pursuant to Section 832.5 of the Penal Code. [¶] (3) Facts sought to be

disclosed which are so remote as to make disclosure of little or no practical benefit.’

[Citation.]” (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227.) “A trial court’s

decision on the discoverability of material in police personnel files is reviewable under

an abuse of discretion standard. [Citation.]” (People v. Jackson (1996) 13 Cal.4th

1164, 1220-1221.)


                                            52
       In defendant’s Pitchess motion, he sought “information regarding any excessive

use of force, misstatements in police reports, character, habits, customs and credibility

of the involved officer(s) in this case.” Defendant further argued that it was

unconstitutional to limit the information to a five-year time period. Defendant asserted

he should be permitted access to all relevant information regardless of the time elapsed.

       We have reviewed the Pitchess hearing transcripts. The only discoverable

incident involved Davis striking Mendoza on May 26, 2007, which was disclosed to

defendant. Accordingly, we conclude the trial court did not err.

       O.     DISQUALIFICATION

       Defendant asserts this court should disqualify Judge Law from presiding over

this case upon remand. We have have found one error, which would not require an

exercise of discretion by Judge Law upon remand. Accordingly, we do not further

address defendant’s disqualification contention because it is moot. (People v.

Gregerson, supra, 202 Cal.App.4th at p. 321 [an issue is moot when a court’s ruling

would have no practical effect].)




                                            53
                                      DISPOSITION

       Defendant’s conviction in Count 2 (§ 148, subd. (a)(1)) is reversed. The trial

court is directed to amend the October 5, 2011, minute order to reflect defendant does

not have a sentence for Count 2. In all other respects, the judgment is affirmed.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS


                                                      MILLER
                                                                                         J.


We concur:


RICHLI
                       Acting P. J.


KING
                                 J.




                                           54
