Filed 5/6/15 P. v. Bargerter CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B251903

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA091141)
         v.

MICHAEL BARGERTER,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Richard R. Romero, Judge. Affirmed.


         Thomas K. Macomber, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Paul M. Roadarmel, Jr., and Tita
Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       A jury convicted defendant Michael Bargerter of assault on a peace officer in
violation of Penal Code section 241, subdivision (c)1 as a lesser included offense of
assault with a deadly weapon (count 1) and the attempted murder of Officer Felipa
Baccari in violation of sections 664, subdivision (a) and 187 (count 3). The jury found
that the attempted murder was committed while Officer Baccari was engaged in the
lawful performance of her duties as a peace officer within the meaning of section 664,
subdivision (e). The court sentenced defendant to seven years to life with the possibility
of parole in count 3 and one year in county jail for the misdemeanor offense in count 1.
       Defendant appeals on the grounds that: (1) there was insufficient evidence to
prove that Officer Baccari was engaged in the performance of her duties; and (2) the trial
court violated defendant’s due process right to present a complete defense when it
prejudicially excluded evidence of Officer Baccari’s training and experience, police
practices and procedures, and expert opinion testimony. Defendant also requests this
court to conduct an independent review of the sealed transcript of the Pitchess2 hearing to
determine whether additional information should have been disclosed.
Prosecution Evidence
       On January 18, 2012, Officer Felipa Baccari was on patrol when she drove into an
alley behind East Ocean Boulevard in Long Beach. Nearby residents frequently
complained about transients going through the trash and recycling bins and making a
disturbance. It is illegal in the City of Long Beach to dig through trash cans and remove
recyclables from the recycling bins. Officer Baccari saw defendant digging in one of the
recycling bins and asked him to stop and to move on. He said he would not and squatted
down. Officer Baccari got out of her car and asked defendant to go to the front of her
car, and he complied. When she requested identification, defendant gave Officer Baccari
a photograph of himself that appeared to be a booking photograph. When she asked if he



1      All further references to statutes are to the Penal Code unless otherwise stated.

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

                                             2
was on parole or probation, he did not answer. He began yelling at Officer Baccari and
ignored her efforts to calm him down.
       Officer Baccari became alarmed. She believed defendant was going to “escalate”
and do something out of the ordinary. She reached for her taser but then extracted her
baton because she realized her taser would not work through defendant’s multiple
jackets. She told him to get down on his knees, and he refused. He asked, “Are you
gonna hit me with that, bitch?” She said she would if he did not get down, and she asked
for a unit to assist. After ordering him to his knees a third time, she took a swing at him,
but he jumped back and she missed him. Defendant took a fighting stance and Officer
Baccari tried to hit him again, but he picked her up off the ground and slammed her down
onto the alley. His hands went to her neck and she felt the need for air. She tried to hit
him on the head with the baton, but defendant grabbed the end of it and hit her on the
head. Officer Baccari threw the baton away from both of them and tried to pull out her
gun. She felt pressure on the gun and realized defendant had his hand on it. Because
defendant was stronger than she, Officer Baccari feared he would take the gun and shoot
her. She slammed the gun back into its holster and turned her body onto it, hoping
backup would soon arrive. Suddenly “she felt that everything went really quiet” and she
saw a black curtain begin to close.
       As Officer Baccari began to black out, she did the only thing she could think of,
which was to poke defendant in the eye with her thumb. It took him off guard to the
point where he let go, and she began to scoot out from under him. Defendant grabbed her
again, climbed on top of her and clamped on her neck. She had regained her breath and
was able to punch him. She heard sirens and knew help was coming. She heard the
tasers go off and felt defendant’s weight taken off her.
       Deborah Sue Smith’s windows overlooked the alley. Smith has had problems
with people going through the trash and recycling bins. They begin going through the
bins at 4:00 a.m., and it sometimes continues until 10:00 p.m.
       At approximately noon on the day of the incident, Smith heard a female voice
from the alley saying, “Sir, stop. Sir, stop.” Smith looked out the window and saw a

                                              3
female police officer, later identified as Officer Baccari, approaching a male who was
walking away from her. Smith identified the male as defendant. Defendant took another
step, and Officer Baccari approached him. Defendant turned around and swung at
Officer Baccari, who had her baton held up at her side. Defendant then grabbed the
officer around the throat and threw her down onto the concrete. Smith at first stated she
did not see Officer Baccari strike or attempt to strike defendant, but then testified she saw
the officer raise the baton and bring it down toward defendant’s back. She did not see it
hit defendant.
       Smith saw Officer Baccari land on her back. Defendant got on top of her. Officer
Baccari was wriggling in an effort to break defendant’s one-handed grip, and defendant
was reaching down on the officer’s side where she had her gun and was “trying to get to
her gun.” Defendant was “really squeezing her throat” with one hand. When defendant
was unable to get the gun, defendant put his second hand around the officer’s throat and
squeezed. Officer Baccari went “just a little limp” at one point. Smith knew that the
officer was in serious trouble and called 911.
       Smith saw the first responding officer run towards defendant, who was still on top
of Officer Baccari. The arriving officer used a stun gun on defendant. The stun gun had
no effect, and defendant continued to squeeze Officer Baccari’s neck. Three more police
cars carrying five officers arrived and ran to Officer Baccari. An officer said, “‘Let go,’”
but defendant did not let go, and the officers began hitting defendant with their batons on
the back of his arms, his back, and his legs. When defendant was finally carried to a
patrol car, he said, “If I could get up from here, I’ll kill all you son of a bitches.”
       Officer Salvadore Torres was the first to arrive at the scene, and he saw defendant
choking Officer Baccari. Defendant ignored Officer Torres’s order to get up and
remained on top of Officer Baccari, squeezing her neck. When Officer Torres saw that
defendant had no weapons, he decided to use a taser on defendant rather than extract his
gun. Defendant was not affected by the taser. Defendant refused to comply with Officer
Torres’s orders to lie on his stomach. He began swinging his arms and legs at Officer
Torres even after being struck in the arms and legs with the officer’s baton. It was not

                                                4
until four more police officers arrived and struck defendant with their batons on the back
of his arms, his back, and his legs, that the officers were able to take defendant into
custody. Defendant continued to struggle while being carried to the patrol car. Officer
Torres also heard defendant say, “If I could get up from here, I’ll kill all you son of a
bitches.”
       Detective Jessica Delosh testified that she heard Officer Baccari’s radioed call for
assistance. As she drove to the scene, she heard a gasp for air over the radio. She stayed
with Officer Baccari until paramedics arrived. Officer Baccari had a golf ball-sized knot
on the right side of her head and red marks around her neck. She complained that her
ribs, knees, and elbows hurt.
       At the hospital, Officer Baccari answered the doctor’s questions about how she
received her injuries and gave a statement to Detective Delosh. Officer Baccari’s neck
was sore, her head and chest were hurt and she was in pain for more than three days. She
had to remain off duty for six weeks so that her rib area could heal.
Defense Evidence
       Dr. Mark Joyner treated Officer Baccari, who told him that she sustained trauma
while trying to restrain a suspect who had been resisting arrest. Officer Baccari denied
syncope or loss of consciousness associated with choking, paresthesis or numbness,
weakness, tingling in the upper and lower extremities from trauma, and cervical spine
tenderness. Officer Baccari reported sharp and stabbing chest pain to her right side, and
pain when she moved or took a deep breath. She did not complain of shortness of breath.
Dr. Joyner offered Officer Baccari narcotic pain medication, but she refused.
       Officers Palacios and Potter did not see defendant on top of Officer Baccari when
they arrived. Defendant was upright, and Officers Baccari and Torres were using their
batons on him.
       Yuseff Omowale’s one-bedroom apartment faced the alley. At noon on the day of
the incident, Omowale heard voices. A female voice sounded pleading, and a male voice
was asking to be left alone and was increasingly agitated. When Omowale finally went
to the window he saw a man on the ground being beaten with batons by two male police

                                              5
officers. The male was “essentially, begging for his life, begging to be left alone, that he
was in severe pain.” Omowale also saw a female police officer lying in the alley. Based
on his observations, the situation escalated after the female officer said “Calm down.”
        Paul Kim is a retired Commander of the Los Angeles Police Department and
expert in the use of force by officers. He described the types of batons and the different
techniques for wielding them. In his expert opinion, Officer Baccari’s baton was capable
of causing great bodily injury or death regardless of the manner in which it was held or
used.
        Kim was of the opinion that the photograph defendant showed Officer Baccari was
not a mug shot. He also described deescalation techniques and methods for the jury. He
stated that the officer’s “presence” meant a lot, as well as the officer’s demeanor, tone of
voice, ability to be clear and concise in communicating with the subject, and the officer
being alert to what was occurring. The officer had to assess whether “it is to escalate or
deescalate, it’s a changing situation so you need to be alert.”
        Defendant testified that he had pleaded guilty to felony burglary in 1994 and had
been convicted of tampering with a vehicle in 2007. At the time of the incident with
Officer Baccari, he was homeless. He walked along that alley every day on his way to
Bixby Park. He did not look in the recycling bins, but he did look in the trash for
anything of value. Defendant looked in the trash that day but did not recall taking
anything out of the bins.
        A police car came up behind defendant, and the officer inside, Officer Baccari,
asked defendant if he was taking recyclables. He replied he was not, and the officer
asked what he was doing, why he was going down that alley, and what he did at the park.
Because it was hot and he was wearing a few layers of clothing while walking around all
day, defendant sat down on the curb. Seconds after telling defendant that he could leave,
Officer Baccari “exploded.” She said, “Fuck it. Hands on the car.” Officer Baccari
asked defendant where he was going, if he had been drinking or using, and if he had
identification. Defendant showed her a paper he had found with the name “Rod Miller”



                                              6
on it. Since defendant had no identification and the person looked just like him, he
thought it would be a good idea to have it.
       The officer used “cuss words” the entire time she was speaking with him. She was
being “real aggressive.” Defendant felt “entrapped” and cornered and “being treated as
less of an individual than what . . . [was] allowed.” At one point during the questioning,
defendant decided to answer with a lyric from a song that was playing on the Walkman
he was wearing. He started singing it loudly. He put some emphasis into it and the
officer told him to “shut the fuck up” or she would hit him with her bat.
       Defendant lost his temper at her cussing and trick questions. He looked her
straight in the eye and said, “You shut the fuck up.” His hands never left the hood of the
car. He began asking her why she was doing this to him. It was not in a loud voice. The
officer pulled her bat out and raised it above her head, and he jumped back. She then
screamed into her radio. Officer Baccari tried to hit him a second time, and he jumped
back again. There were three or four advances with the bat, and in between the officer
managed to pull out her taser and shoot him. He felt like he had hit an electric horse
fence. The officer did not tell defendant to get down on his knees before swinging at
him, and he did not recall if she said it after the first swing.
       After being tased, defendant managed to grab the bat when the officer swung at
him again. He decided to wrestle her to the ground. He had wrestled in high school, and
he used a take-down move to make them both fall to the ground. As he got on top of the
officer, he felt a pang on the back of his neck and realized she was hitting him in the back
of the head with the bat. He reached up and grabbed it. Officer Baccari was wriggling
and defendant tried to control her and maintain his balance by placing one hand near the
top of her chest, around her neck. His intention was to keep her on the ground. He did
not want to hurt her in any way—he was just trying to stop her. The hold he had on her
was a legal restraining maneuver in wrestling. Defendant had a “stiff arm” to her neck,
but he was not squeezing. He did not intend to kill her.
       Defendant said that he and the officer had fought for the baton for approximately
four seconds when he heard car doors slam. He saw two officers running at him with

                                                7
their batons out. Defendant tried to run away but tripped and fell to the ground. When
the officers caught up with him, they beat him with their batons. Defendant managed to
crawl or run another 20 feet until five officers overpowered him and beat him
continuously with their bats.
                                        DISCUSSION
I. Sufficiency of the Evidence
       A. Defendant’s Argument
       Defendant contends that Officer Baccari’s use of force was excessive under the
Fourth Amendment’s standard of reasonableness, and this court should reverse the guilty
verdict in count 1 and the true finding that the officer was engaged in the lawful
performance of her duties in count 3.
       B. Relevant Authority
       The Fourth Amendment’s prohibition on “unreasonable . . . seizures” protects
individuals from excessive force in the context of an arrest or seizure. (U.S. Const., 4th
Amend.; see Graham v. Connor (1989) 490 U.S. 386, 394 (Graham).) “[C]laims [of
excessive force] are properly analyzed under the Fourth Amendment’s ‘objective
reasonableness’ standard . . . .” (Graham, at p. 388.) “Determining whether the force
used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment requires a
careful balancing of ‘“the nature and quality of the intrusion on the individual’s Fourth
Amendment interests”’ against the countervailing governmental interests at stake.
[Citation.] Our Fourth Amendment jurisprudence has long recognized that the right to
make an arrest or investigatory stop necessarily carries with it the right to use some
degree of physical coercion or threat thereof to effect it. [Citation.] Because ‘[t]he test of
reasonableness under the Fourth Amendment is not capable of precise definition or
mechanical application,’ [citation], however, its proper application requires careful
attention to the facts and circumstances of each particular case, including the severity of
the crime at issue, whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or attempting to evade arrest
by flight. [Citation.]” (Id. at p. 396.)

                                              8
       C. Proceedings Below
       CALCRIM No. 602 informed the jury that the People had to prove Officer Baccari
was a peace officer lawfully performing her duties as a peace officer. The jury was told
that the duties of a police officer include criminal investigation, detention, and arrest.
The instruction states that 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 in his or her duties. CALCRIM No. 602 referred the jury members to CALCRIM
No. 2670.
       CALCRIM No. 2670 stated that the People had the burden of proving beyond a
reasonable doubt that Officer Baccari was lawfully performing her duties. The
instruction explained that a peace officer legally detains someone if specific facts, either
known or apparent, lead the officer to suspect that the person to be detained is or is about
to be involved in criminal activity, and a reasonable officer who knew the same facts
would have the same suspicion. The jury was told to consider the officer’s training and
experience and all of the circumstances known to the officer when she detained the
person.
       CALCRIM No. 2670 also instructed the jury that “[s]pecial rules control the use of
force.” The rules given the jury were as follows: (1) “A peace officer may use
reasonable force to arrest or detain someone, to prevent escape, to overcome resistance,
or in self-defense.” (2) “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.” (3) “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.” (4) “A person being arrested uses
reasonable force when he or she[ ] uses that degree of force that he or she actually
believes is reasonably necessary to protect himself or herself from the officer’s use of
unreasonable or excessive force; and[] uses no more force than a reasonable person in the
same situation would believe is necessary for his or her protection.”



                                              9
        D. Use of Force Reasonable
        Defendant contends that the facts and circumstances of the incident show that
excessive force was used and the arrest was unlawful. He argues that the act of drawing
the taser to compel defendant to shut up was “an act of excessive force because it was an
unnecessary showing of force that portended immediate violence” to him. There was no
lawful reason to tase defendant when all defendant did was refuse to stop yelling.
According to defendant, the evidence showed defendant was nonthreatening, and he took
a fight stance only after the officer tried to strike him two times with her baton.
Defendant argues that Officer Baccari’s motive was to punish defendant for his yelling.
        We believe a finding that Officer Baccari was engaged in the lawful performance
of her duties was not negated by an unreasonable use of force in this case. “With respect
to a claim of excessive force, the . . . standard of reasonableness at the moment applies:
‘Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s
chambers,’ [citation], violates the Fourth Amendment. The calculus of reasonableness
must embody allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly evolving—
about the amount of force that is necessary in a particular situation. [¶] As in other
Fourth Amendment contexts, however, the ‘reasonableness’ inquiry in an excessive force
case is an objective one: the question is whether the officers’ actions are ‘objectively
reasonable’ in light of the facts and circumstances confronting them, without regard to
their underlying intent or motivation. [Citations.]” (Graham, supra, 490 U.S. at pp. 396-
397.)
        In the instant case, the critical area of analysis is the sequence of events before
defendant tackled Officer Baccari and slammed her down on the ground where he began
choking her. Referring to the three factors mentioned in Graham as being among those
to consider, defendant argues that the severity of his crime was “de minimus,” he was
nonviolent, and his refusal to go to his knees was reasonable. (See Graham, supra, 490
U.S. at p. 396.)



                                              10
        The record shows that Officer Baccari was aware that individuals whose
residences faced the alley often complained about transients rifling through their trash
and recycling bins. The complaints included the noise generated by this activity and the
trash left lying around. Officer Baccari was also aware that it was against the law in
Long Beach to go through trash and recycling bins and remove recyclable items. Officer
Baccari saw defendant digging inside a recycling bin and looking in trash containers, and
she asked him to stop and to move on. Defendant said he would not, thereby defying the
officer’s reasonable orders, and he squatted in the alley. She again asked him to move on
and said, “Don’t make me . . . give you a ticket.”
        Because defendant obviously did not intend to move on, Officer Baccari got out of
her car and asked defendant to go to the front of her car, and he complied. When she
asked for identification, defendant gave her a photograph that appeared to be a booking
photograph of defendant. When she asked defendant if he was on parole or probation, he
did not answer.
        At that point defendant began yelling “at the top of his lungs” at Officer Baccari.
She tried to calm him down by saying that a misdemeanor ticket was “not a big deal,” but
defendant continued to yell. The officer told him to shut up and relax, but he just yelled
louder. Because his behavior was alarming, Officer Baccari believed he was going to
“escalate,” and it was possible he would do something “out of the ordinary.” She
extracted her taser “in case he [did] something that’s not of the ordinary.” (Italics
added.) She put it away immediately, however, when she realized it would be
ineffective. Contrary to defendant’s assertions that Officer Baccari made “[a] decision to
tase” defendant and “fully intended to tase [defendant],” there was no testimony that she
intended to use it on defendant unless it was necessary. It was extracted as a cautionary
move.
        Officer Baccari then took out her baton and told defendant to get on his knees so
that she could be in control of the situation—which consisted of a stronger, younger, and
belligerent man directing his anger at a smaller police officer. Defendant refused to kneel
and continued his angry words. When he asked her, “Are you gonna hit me with that,

                                             11
bitch?” Officer Baccari said she would if he did not get down on his knees. Defendant
had a choice. As stated in Graham, “the right to make an arrest or investigatory stop
necessarily carries with it the right to use some degree of physical coercion or threat
thereof to effect it. [Citation.]” (Graham, supra, 490 U.S. at p. 396.) Where there is
potential danger, the Supreme Court’s definition of reasonableness is comparatively
generous to police. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 528.)
        After asking defendant to go to his knees a third time, Officer Baccari took a
swing at defendant but missed him when he jumped back. She called for assistance and
attempted to hit him again but missed. Defendant took up a fighting stance. Officer
Baccari then attempted to hit defendant in the leg to get him on the ground, but at that
point defendant picked her up off the ground and slammed her into the concrete, placing
his hands around her neck.
        We believe that although defendant complied with Officer Baccari’s command to
place his hands on the police car, his refusal to move on when asked in a friendly manner,
which was the cause of the entire incident, was not cooperative. Nor can his continuous
shouting be called cooperative behavior. A subject who is young and strong and
screaming at the top of his lungs is enough to put any reasonable lone officer on guard
and to cause that officer to take precautionary measures for self-defense or even to make
a preemptive strike. A reasonable officer would make an effort to take control of the
situation by reducing the suspect’s physical advantage over the officer. “[A] police
officer must have control over the manner and means of making an arrest or detention.”
(Edson v. City of Anaheim (1998) 63 Cal.App.4th 1269, 1273.) Moreover, Officer
Baccari had not patted down defendant and did not know what he had on his person,
which was an important reason to have control over him. She noted he was wearing a
fanny pack in addition to several jackets. In addition, the photograph defendant showed
Officer Baccari indicated he had been incarcerated and was not a stranger to criminal
acts.
        We do not agree with defendant’s assertions below that a reasonable officer would
have tried to handcuff defendant and put him in the patrol car. Any reasonable officer

                                             12
would not wish to get that close to a suspect who is taller, younger, and clearly angry.
When asked if another solution would not have been to return to the police car, roll up the
windows and wait for backup, Officer Baccari stated she would not go back in the patrol
car, roll up the windows, and lock the doors because, “That’s not police work.” Any
reasonable officer would have believed, as did Officer Baccari, that he or she would not
be doing his or her job to back away from every person who did not comply with his or
her orders. An officer is not required to desist when faced with resistance. (Brown v.
Ransweiler, supra, 171 Cal.App.4th at p. 527.)
       Furthermore, section 835a provides that a “peace officer who makes or attempts to
make an arrest need not retreat or desist from his efforts by reason of the resistance or
threatened resistance of the person being arrested; nor shall such officer be deemed an
aggressor or lose his right to self-defense by the use of reasonable force to effect the
arrest or to prevent escape or to overcome resistance.” Although it was not clear from the
outset that defendant was to be arrested, and his conduct was clearly a determining factor
in that possibility, it is not possible to make an arrest without a detention. (See Evans v.
City of Bakersfield (1994) 22 Cal.App.4th 321, 330.) Defendant’s conduct supports the
fact that Officer Baccari’s actions in attempting to control defendant were reasonable.
       Defendant finds significant the fact that Officer Baccari testified at the preliminary
hearing that she called for backup only after her second attempt to strike defendant, but
we do not share this view. The point at which Officer Baccari called for backup in the
swift-moving course of events is not as significant as defendant appears to believe.
Whether it was after taking out her baton but before attempting to strike or after
attempting to strike him twice is of no moment given the rapid sequence of events.
       Succinctly stated, the constitutional issue is “whether the totality of the
circumstances justif[ies] a particular sort of . . . seizure.” (Tennessee v. Garner (1985)
471 U.S. 1, 8-9 (Garner).) “The Fourth Amendment has never been interpreted to
‘“require that police officers take unnecessary risks in the performance of their duties.”
[Citation.]’” (People v. Collier (2008) 166 Cal.App.4th 1374, 1378.) Officer Baccari
was alone with a younger and larger man who was behaving in an angry, hostile, and

                                             13
uncooperative manner, and there was a need to control him and the quickly changing
situation. Ordering defendant to his knees and attempting to enforce the ignored order
with a baton was reasonable to ensure the officer’s safety and to enable her to conduct an
investigation. (See, e.g., People v. Avila (1997) 58 Cal.App.4th 1069, 1072-1074
[although each individual factor may seem harmless in hindsight, when taken together,
the officer had reasonable belief his safety was in danger where the defendant acted
suspiciously, walked around his car, dropped an envelope, and had a metal object within
reach].) On this record, we are satisfied that Officer Baccari’s attempted use of force was
lawful, and she was therefore engaged in the lawful performance of her duties. The
conviction in count 1 and the true finding on the allegation in count 3 must stand.
II. Exclusion of Evidence
       A. Defendant’s Argument
       Defendant contends the trial court violated his constitutional right to present a
complete defense by excluding evidence of Officer Baccari’s training and experience,
general police practices and procedures in conducting arrests, and the opinion testimony
of defense expert Paul Kim. The court erroneously made numerous rulings that the
proffered evidence was not relevant.
       B. Relevant Authority
       Only relevant evidence is admissible. (Evid. Code, § 350.) All relevant evidence
is admissible, except as otherwise provided by statute. (Evid. Code, § 351.) Relevant
evidence is evidence “having any tendency in reason to prove or disprove any disputed
fact that is of consequence to the determination of the action.” (Evid. Code, § 210.)
“The test of relevance is whether the evidence tends ‘logically, naturally, and by
reasonable inference’ to establish material facts such as identity, intent, or motive.
[Citations.]” (People v. Garceau (1993) 6 Cal.4th 140, 177.) The trial court has wide
discretion in determining the relevancy of evidence. (Ibid.) Evidence is irrelevant if it
leads only to speculative inferences. (People v. Morrison (2004) 34 Cal.4th 698, 711.)
       Evidence Code section 801 provides in pertinent part: “If a witness is testifying as
an expert, his testimony in the form of an opinion is limited to such opinion as is: [¶] (a)

                                             14
Related to a subject that is sufficiently beyond common experience that the opinion of an
expert would assist the trier of fact . . . .” (See also People v. Valdez (1997) 58
Cal.App.4th 494, 506.)
       C. Proceedings Below
       Prior to trial, defense counsel issued a subpoena duces tecum for the police and
procedure manual for the City of Long Beach Police Department, but the city objected.
Counsel stated she planned to use the manual to show whether Officer Baccari and/or
Officer Torres acted in their lawful duties as law enforcement officers.3 The prosecutor
argued that a policy does not indicate whether an officer was acting lawfully or the use of
force was reasonable, and hence the manual was not relevant. The court agreed that the
police department did not determine the standard. The jury would decide if the officers
were acting within their lawful duty.
       During trial, defense counsel continually attempted to elicit information regarding
Officer Baccari’s training and experience. The prosecutor’s objections were generally
sustained, or the court itself called for a sidebar, prompting defense counsel to withdraw
her questions. Counsel ultimately accused the court of being hostile and conducting itself
in a highly prejudicial manner. With respect to the defense expert, Paul Kim, the court
ruled that defense counsel could not ask Kim’s opinion as to whether normal police
tactics are advisable when the officer is working alone or any other standard-of-conduct
questions. The witness could not quote police practices and procedures. The court stated
that expert opinion is not necessary for jurors to decide whether force was reasonable or
excessive. The jurors were fully capable of deciding factual issues such as the pressure
the officer was under, the pressure defendant was under, and whether things were
escalating or deescalating. The court stated it would allow expert testimony that was
“very factual,” such as how each weapon worked. It was for the jury to decide “what
happened, who did what, what were they thinking, and [was] that reasonable.”


3      Defendant was initially charged with violating section 69, resisting an executive
officer, in relation to Officer Torres, but that count was dismissed before trial.


                                             15
       D. No Abuse of Discretion or Constitutional Violation
       Defendant argues the court’s rulings were erroneous and prejudicial because it
cannot be shown beyond a reasonable doubt that the jury would have rendered the same
verdict in the absence of the error. Defendant also contends it cannot be shown under
People v. Watson (1956) 46 Cal.2d 818, 836, that there was a reasonable probability the
error did not affect the verdict adversely to defendant. According to defendant, the trial
court’s errors were exacerbated by the prosecutor arguing to the jury that it could not
consider Officer Baccari’s training and experience nor whether alternative means were
available to her, thus reducing the standard of reasonableness to a subjective one.
       Defendant cites Kopf v. Skyrm (4th Cir. 1993) 993 F.2d 374 (Kopf) for the
proposition that where a standard is not defined as that of a reasonable person, but rather
that of a reasonable officer, there may be a need for the jury to be exposed to specialized
knowledge. (Id. at p. 378.) In addition, defendant argues, one of the factors the jury may
consider is the availability of alternative methods of dealing with a subject, and this
question removes the subject away from the common knowledge of jurors. (See Smith v.
City of Hemet (9th Cir. 2005) 394 F.3d 689, 703.)
       We believe the trial court properly exercised its discretion in excluding certain
evidence of Officer Baccari’s training and experience. As noted, when a law
enforcement officer is accused of using excessive force in the course of discharging his or
her duties, we must analyze that claim against the Fourth Amendment’s standard of
objective reasonableness. (Graham, supra, 490 U.S. at p. 388.) Under this standard, and
given the circumstances of this case, evidence of police procedures was not relevant. As
the trial court pointed out, police policy is not the law. The procedures may state a higher
or lower standard than that of a lawful, reasonable level of force. (See, e.g., Garner,
supra, 471 U.S. at p. 5 [standard in police policy different from statute].) The conduct of
a reasonable officer in a situation such as occurred here was clearly a question for the
jury. Moreover, the circumstance of Officer Baccari’s own training and experience
would be relevant only to her subjective belief in the reasonableness of her use of force,
and it is an objective standard that governs the issue. Therefore, the trial court did not

                                             16
abuse its discretion when it ruled such evidence irrelevant and inadmissible. (See Evid.
Code, § 350.)
        The fact that CALCRIM No. 2670 states that the jury may consider evidence of
the officer’s training and experience in deciding whether the detention was lawful does
not signify, as defendant argues, that the trial court’s ruling was erroneous regarding the
reasonableness of the officer’s use of force. The lawfulness of the detention rests upon
the reasonableness of the officer’s suspicion that the detainee is or is about to be involved
in activity related to crime. The jury had to decide whether the detention was lawful
apart from any use of force, and sufficient inquiry into Officer Baccari’s reasons for
detaining defendant was permitted by the trial court. As the instruction states, special
rules govern the use of force, and these “special rules” come into play during an
otherwise lawful detention. The reasonableness of the use of force in the otherwise
lawful detention is dependent upon, as Graham repeatedly emphasizes, the particular
facts and circumstances confronting the officer. (Graham, supra, 490 U.S. at pp. 396-
397.)
        Here, defense counsel’s questions that referred to training were always in
connection to the use-of-force issue. For example, despite the trial court’s ruling, counsel
attempted to ask Officer Baccari if she was trained in officer safety and to remain in her
patrol car if there is an “officer safety situation,” if she was “trained to control individuals
in situations such as this,” if she was trained in dealing with homeless people, if she was
trained in calming people down, and if she was trained that a baton could be used as a
lethal weapon. Counsel also attempted to ask the officer if she was aware of the mental
evaluation team (MET) in the city of Long Beach in order “to establish that there were
nonviolent means of controlling the situation that she did not consider.” The trial court
found counsel had not established the MET was available at the pertinent time.
        In addition, the court did allow defense counsel to ask if Officer Baccari had
experience in calming people down, if she had dealt in the past with individuals who
displayed unreasonable behavior, if in her experience yelling at a person who is yelling
escalates the situation, and if she was trained to testify in court. Over the prosecutor’s

                                              17
objections, the trial court allowed defense counsel to ask Officer Baccari if there were
other ways she could have controlled defendant. Illustrating that such training questions
elicit subjective information, Officer Baccari replied, “I thought that [ordering defendant
to his knees] would be the best way.” Thus, the record shows that the court had a
balanced approach to counsel’s questions regarding training and experience and by no
means imposed a blanket exclusion.
       The court also found the probative value of the proposed evidence was
substantially outweighed by the undue consumption of time its presentation would
engender, and we believe it would also lead to confusion of the issues and misleading the
jury.4 A presentation of the Long Beach policies and procedures would require the
prosecutor to rebut this evidence with evidence from several sources showing, inter alia,
that the procedures were not universal and could not dictate the legal standard. As the
trial court stated to defense counsel, the jury instruction (CALCRIM No. 2670) did not
override the other rules of evidence or the trial court’s rulings.
       With respect to the expert, as defendant acknowledges, expert testimony is not
required in order for a jury to determine if an officer used reasonable force. (Allgoewer v.
City of Tracy (2012) 207 Cal.App.4th 755, 765-766 (Allgoewer).) In Allgoewer, the
reviewing court held that the trial court had erred by requiring Allgoewer, in order to
avoid a nonsuit, to offer expert testimony on the force a reasonable officer would have
used under similar circumstances. (Id. at p. 757.) The defendants had argued to the
court, just as defendant here, that without such ‘“expert testimony to establish an
objective reasonableness standard for the defendant officers’ actions, the lay jury will
have no evidence from which to assess what actions are characteristic of a reasonable
police officer.”’ (Id. at p. 759.) The defendants contended the amount of force a



4     Evidence Code section 352 provides: “The 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 a substantial
danger of undue prejudice, of confusing the issues, or of misleading the jury.”


                                              18
reasonable officer would have used was not within the common knowledge of
laypersons. (Ibid.)
       The Allgoewer court stated that the need for expert testimony on this issue had not
been addressed in any California case, and it relied on out-of-state authorities it found
persuasive. (Allgoewer, supra, 207 Cal.App.4th at pp. 762-765.) Like defendant, the
court cited Kopf. (Allgoewer, at p. 763.) The court noted Kopf’s holding that where the
standard is defined by a reasonable officer rather than a reasonable person, the need for
specialized knowledge rather than common knowledge is “more likely.” (Allgoewer, at
p. 763.) Allgoewer also noted, however, that Kopf held there is no blanket rule that such
expert testimony is generally admissible or that it was not. (Allgoewer, at p. 763, citing
Kopf, supra, 993 F.2d at pp. 378-379.) After reviewing other cases, the Allgoewer court
concluded there was nothing about the particular use of force in Allgoewer’s case that
was so far removed from the comprehension of the jury that expert opinion testimony
was required on the standard of conduct or on the amount of force that was reasonable
under the circumstances of that case. (Allgoewer, at pp. 765-766.)
       We reach the same conclusion in the instant case. Here, there was no showing of
any type of force that was unfamiliar to a lay person. Furthermore, Kim was allowed to
testify about tasers and batons—the weapons Officer Baccari used or attempted to use as
either a weapon or a deterrent. In addition, as we have noted, defense counsel managed
to pose several questions to Officer Baccari regarding alternatives she did not employ.
Therefore, exclusion of the evidence did not abridge defendant’s right to present a
complete defense.
       Finally, defendant argues that evidence of training and experience, law
enforcement policies and procedures, and portions of Kim’s testimony should not have
been excluded under the test stated in Perry v. Rushen (9th Cir. 1983) 713 F.2d 1447
(Perry). In that case, the defendant complained that his right to compulsory process for
obtaining witnesses in his favor under the Sixth and Fourteenth Amendments had been
violated. The defendant wished to show that a third party committed the charged assault,
and the trial court excluded, under Evidence Code section 352, the evidence of two

                                             19
witnesses who had been robbed and raped by a different man in the same area. (Perry, at
p. 1449.) Perry stated that in evaluating the significance of the evidence the trial court
should consider all of the circumstances, i.e., the probative value, its reliability, whether
it is capable of evaluation by the finder of fact, whether it is the sole evidence on the
issue, and whether it constitutes a major part of the attempted defense. (Id. at pp. 1452-
1453.) In Perry, however, the court stated that the excluded evidence was “of possible
relevance.” (Id. at p. 1453.) In the instant case, the proffered evidence of training was
not relevant to the legal standard of excessive force. Assuming the proffered evidence
had some relevance, however, we believe that, as in Perry, there was an absence of
sufficient “probity of the evidence compared to its tendency to divert the trial and confuse
the jury.” (Id. at p. 1455.)
       Having concluded that the trial court did not abuse its discretion under the
ordinary rules of evidence, we also conclude there was no federal constitutional violation.
“The general rule remains that ‘“the ordinary rules of evidence do not impermissibly
infringe on the accused’s [constitutional] right to present a defense. Courts retain . . . a
traditional and intrinsic power to exercise discretion to control the admission of evidence
in the interests of orderly procedure and the avoidance of prejudice.”’ [Citations.]”
(People v. Lawley (2002) 27 Cal.4th 102, 155.) The United States Supreme Court has
made it clear that the admission of repetitive, irrelevant, or marginally relevant evidence
is not mandated by the Constitution. (Crane v. Kentucky (1986) 476 U.S. 683, 689-690.)
“[T]he Constitution leaves to the judges who must make these decisions ‘wide latitude’ to
exclude [such] evidence . . . .” (Id. at pp. 689-690, quoting Delaware v. Van Arsdall
(1986) 475 U.S. 673, 679.)
       We conclude there was no error or constitutional violation occasioned by the trial
court’s exclusion of evidence regarding police procedures and Officer Baccari’s training,
or in its limitations on the expert testimony.
III. Pitchess Motion
       In defendant’s opening brief, he requests this court to conduct an independent
review of the reporter’s transcript of the in camera Pitchess hearing for evidence of

                                              20
officer dishonesty that was not turned over to the defense. The People have not objected
to this court reviewing the transcripts of the hearing.
       The trial court held a hearing for Pitchess discovery of any officer dishonesty or
use of unreasonable force. We review a trial court’s ruling on a Pitchess motion for
abuse of discretion. (People v. Jackson (1996) 13 Cal.4th 1164, 1220-1221.) That
discretion is broad. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) We conducted a
review of the in camera proceedings in the manner contemplated by the decision in
People v. Mooc (2001) 26 Cal.4th 1216, 1228-1230, and found the record to be adequate
to permit meaningful appellate review. (See People v. Prince (2007) 40 Cal.4th 1179,
1285-1286.)
       We have independently determined from the entire record and that of the sealed
in camera proceedings that the trial court properly exercised its discretion and that no
additional materials were erroneously not ordered disclosed to the defense.
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.




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