Filed 11/21/13 P. v. St. Pierre CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B244725

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA05517)
         v.

CASTOR M. ST. PIERRE,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. David
Walgren, Judge. Affirmed.


         Daniel R. McCarthy, under appointment by the Court of Appeal, for Defendant
and Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and
Jonathan J. Kline, Deputy Attorneys General, for Plaintiff and Respondent.




                                       __________________________
       Castor M. St. Pierre appeals from the judgment entered after a jury convicted him
of resisting a police officer, contending that the trial court erred by allowing the arresting
officer to testify that an internal investigation had cleared him of making an unlawful
arrest through the use of excessive force. We agree, but conclude the error was harmless
and therefore affirm the judgment.

                        FACTS AND PROCEDURAL HISTORY

       Shortly before 6:00 p.m. on December 10, 2011, Castor M. St. Pierre was detained
by two Los Angeles County sheriff’s deputies after they saw him riding his bike in an
unsafe and erratic manner while the deputies conducted a traffic stop in Palmdale.
Deputy Donald Chavez stopped St. Pierre because St. Pierre committed traffic violations
and because he believed St. Pierre might be intoxicated.
       St. Pierre agreed to be searched and Chavez found a wallet containing no form of
identification except for a bankcard in St. Pierre’s name. Chavez told St. Pierre he would
cite him for the traffic violations and asked St. Pierre to sit in the rear of the sheriff’s
patrol car while he checked to see if St. Pierre was the subject of any warrants. St. Pierre
sat down but let his feet dangle outside the patrol car.
       Chavez asked St. Pierre to put his feet inside the car. When St. Pierre refused to
do so, Chavez pulled out a pepper spray canister and told St. Pierre he would use it on
him unless he complied. St. Pierre slapped the canister out of Chavez’s hand and began
to stand up. A brief scuffle ensued, which ended after Chavez pushed St. Pierre back into
the car and punched him twice in the nose.
       The motorist detained by Chavez was also seated in the back of the patrol car at
the time. He testified that St. Pierre had not been combative or uncooperative, and had
merely left his feet outside the car because he was tall and his feet were large. The
motorist also denied that St. Pierre had slapped the pepper spray canister out of Chavez’s
hand. Instead, he thought St. Pierre might have raised his hands to defend against the
pepper spray. However, the motorist was impeached by evidence of a contrary statement
that he made to another deputy sheriff that confirmed Chavez’s version of events.

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       St. Pierre was charged with one count of resisting an executive officer by means of
threat or violence. (Pen. Code, § 69.) He did not testify and did not present a defense. A
jury acquitted him of that count but found him guilty of a lesser included offense: a
misdemeanor count of resisting a peace officer. (Pen. Code, § 148, subd. (a)(1).)
       At trial, St. Pierre contended his detention was unlawful because Chavez used
excessive force. The prosecution sought to call Chavez’s supervisor, Sgt. Zarris, to
testify: (1) as an expert witness that Chavez’s use of force was within department
guidelines and was not excessive; and (2) that he conducted an internal review of the
incident and determined that Chavez did nothing wrong when subduing St. Pierre. After
the trial court overruled defense objections to that proposed testimony, the parties agreed
that Chavez could testify about Zarris’s conclusions, including the results of the
investigation. When asked on direct examination about the investigation, Chavez
testified: “I was cleared of any wrongdoing. I didn’t do anything illegal. I was within
the scope of my department’s policy, and I believe that was really as far as the
investigation goes.”

                                          DISCUSSION

1.     The Offense of Resisting Arrest Does Not Occur If the Arresting Officer Used
       Excessive Force

       Before a person can be convicted of resisting a peace officer (Pen. Code, § 148,
subd. (a)(1)), there must be proof beyond a reasonable doubt that the officer was acting
lawfully at the time. (In re Joseph F. (2000) 85 Cal.App.4th 975, 982.) The same is true
for the charged offense of obstructing a peace officer through the use of threats or force.
(In re Manuel G. (1997) 16 Cal.4th 805, 815.) If the officer used excessive force, then he
was not acting lawfully in the performance of his duties. (Susag v. City of Lake Forest
(2002) 94 Cal.App.4th 1401, 1409.) St. Pierre contended at trial that he was not guilty
because Chavez used excessive force.




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2.     Background Facts Concerning Admission of Chavez’s Testimony

       The issue of allowing evidence concerning Zarris’s internal investigation of
Chavez’s use of force first came up before opening statements, when defense counsel
asked the court to bar evidence of the investigation as irrelevant. The trial court agreed.
The prosecutor said she would only try to introduce evidence of the investigation to
rehabilitate Chavez if his credibility were attacked. The trial court agreed to revisit the
issue in that event.
       During the defense opening statement, St. Pierre’s lawyer said the evidence would
show that Chavez was a “[rogue] cop who acted outside the scope of his duties” and used
“force that was entirely unreasonable and unnecessary.” In response, the prosecutor
asked the court to allow in evidence of the internal investigation. Defense counsel
objected that: it was for the jury to decide whether Chavez used excessive force; the
proffered testimony was an impermissible form of vouching for Chavez; and the
proposed testimony was both hearsay and lacked foundation.
       The prosecutor said that evidence of the investigation was relevant because she
had the burden of proving the deputies used lawful force. The evidence would show that
“there was an investigation, and the deputies were cleared of any wrongdoing in the
course of duty and was deemed to have been what they were trained to do and within
reason.” The prosecutor noted that she and defense counsel were considering a
stipulation that would allow Chavez to testify about these matters. Barring that, the
prosecutor said, Sgt. Zarris was available to testify about “the in’s and out’s of the
procedures as well as the findings surrounding the internal investigation.” The
prosecutor answered yes when the trial court asked whether she would offer Zarris’s
testimony “specifically to address basically use of force policy and answer the question
of whether or not the use of force as testified by Deputy Chavez was within [the
department’s policy].”
       Defense counsel objected again that the reasonableness of the force used was a
jury question. “I understand what the court’s inclined to do, and given that the court is


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inclined to allow the People to bring this evidence in, my last argument is we do believe
that it is highly prejudicial to . . . allow this person to come in and testify hypothetically
speaking that this officer acted within the scope of his employment. It’s not an
independent expert, but somebody within their own department.”
       By this point in the trial, Chavez’s testimony was underway and the trial court
pointed out that Chavez had been cross-examined by the defense about his use of force.
In light of that and the defense opening statement, the trial court ruled that evidence of
the internal investigation was relevant to the issue of whether unlawful force had been
applied and was not unduly prejudicial. The trial court noted that Zarris’s testimony
would be limited to “his experience to his investigation and his findings as well as a brief
summary of the appropriate use of force and the escalation of use of force what is
appropriate and not appropriate in the given circumstances.”
       When locating Zarris became difficult, the parties agreed that Chavez could be
asked if the use of force was reported, if there was an investigation, who conducted the
investigation, and the results. Shortly after Chavez testified: “I was cleared of any
wrongdoing. I didn’t do anything illegal. I was within the scope of my department’s
policy, and I believe that was really as far as the investigation goes.”

3.     St. Pierre’s Stipulation to Have Chavez Testify Did Not Waive His Objections

       Respondent contends that St. Pierre waived any objections when his lawyer
stipulated to having Chavez testify instead of Zarris. We disagree. The trial court had
already ruled that Zarris would be allowed to testify both as an expert and about his
investigation, making any further objections futile. (People v. McKinnon (2011)
52 Cal.4th 610, 654.) Under the circumstances, defense counsel’s stipulation to let
Chavez testify instead when the prosecutor had trouble tracking down Zarris does not
amount to a waiver of his overruled objections and falls more into the category of a
defensive move made in light of the realities that he had lost on that issue. (People v.
Turner (1990) 50 Cal.3d 668, 704, fn. 18; Williamson v. Pacific Greyhound Lines (1949)
93 Cal.App.2d 484, 487.)

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4.     The Trial Court Erred By Allowing Evidence of the Investigation

       St. Pierre contends the trial court erred by allowing evidence of the internal
investigation that purported to clear Chavez of any wrongdoing because that evidence
was both hearsay and unduly prejudicial under Evidence Code section 352. Respondent
does not dispute that the evidence was hearsay. Instead, it contends that the evidence was
admissible under the rule that expert witnesses may rely on hearsay evidence to form
their opinions. (People v. Hill (2011) 191 Cal.App.4th 1104, 1121.)1
       We do not dispute that Zarris would have been competent as an expert witness to
opine about the proper techniques an officer should employ when attempting to control
an uncooperative detainee. The prosecution was entitled to put before Zarris a set of
hypothetical facts that mirrored the present incident. Zarris appears to have been
qualified to express an expert opinion that, based on those facts, the officer’s conduct was
within reasonable departmental policy. But that is not what happened here. First Zarris,
and then ultimately Chavez himself, testified that the internal investigation cleared
Chavez of improper conduct. That is not expert testimony. That is evidence of a
percipient witness about what happened in a separate proceeding, and is hearsay.2
(Compare Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1090-1093 [dueling
experts for plaintiff and defendant testified about officer training, procedures, and proper




1      We believe respondent wisely chose to forego an argument that evidence of the
investigation was not hearsay. Evidence of such an investigation necessarily turns on
out-of-court statements by various witnesses and other interested parties and is therefore
inadmissible hearsay absent some exception to the hearsay rule. (See Conservatorship of
Manton (1985) 39 Cal.3d 645, 648-649.)

2      Because we conclude the trial court’s error was harmless, we need not reach St.
Pierre’s companion contention that the trial court erred in admitting the evidence because
it was more prejudicial than probative under Evidence Code section 352.

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response to situations], disapproved on other grounds in Hayes v. County of San Diego
(2013) 57 Cal.4th 622, 639, fn. 1.)3

5.     The Hearsay Evidence Was Not Prejudicial

       As St. Pierre concedes, even if error occurred we do not reverse unless we
conclude that a different result was reasonably probable in the absence of that error.
(People v. Carrillo (2004) 119 Cal.App.4th 94, 103.) In this case, therefore, we must
determine whether the jury would more likely have found that Chavez used excessive
force if it had not heard the evidence of the internal investigation. Determining whether a
police officer used excessive force requires us to apply an objective reasonableness
standard, where we view the officer’s conduct from the perspective of a reasonable
officer on the scene, not in hindsight. (Allgoewer v. City of Tracy (2012)
207 Cal.App.4th 755, 762.) This requires careful attention to the facts and circumstances
of each case, including the severity of the crime, whether the suspect poses an immediate
threat to the safety of the officer or others, and whether he is actively resisting arrest or
attempting to flee. (Ibid.)
       Applying the standard of objective reasonableness mentioned above, no
reasonable jury could have believed that Chavez used excessive force under the
circumstances. St. Pierre does not contend that the force used by Deputy Chavez was
excessive if St. Pierre acted as Chavez described the incident. Instead, when addressing
the prejudice issue in his appellate reply brief, St. Pierre contends Chavez overreacted
when St. Pierre “raised his hand to defend himself.” Therefore his prejudice argument
turns on whether the jury was more or less likely to believe Chavez’s version of events
without Chavez’s testimony about the internal investigation.




3      Because we ultimately conclude the trial court’s error was harmless, we need not
reach St. Pierre’s companion contention that the trial court erred in admitting the
evidence because it was more prejudicial than probative under Evidence Code section
352.
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       The only contrary evidence on this point came from the motorist, who claimed that
St. Pierre had done nothing wrong. That testimony was impeached by the testimony of
another deputy, who said he talked to the motorist after the incident and the motorist
essentially confirmed Chavez’s version of events. The motorist did not testify that any
greater degree of force was used than that described by Chavez. The jury deliberated just
81 minutes before reaching its verdict. Finally, the prosecutor mentioned the
investigation only in passing during her jury argument and did not dwell on or emphasize
the point. Based on the above, it appears that the jury did not credit the motorist and,
instead, accepted Chavez’s account of St. Pierre’s conduct. We do not believe that the
absence of evidence about the internal investigation would have altered this result. We
therefore conclude that a different result was not reasonably probable had Chavez not
testified about the internal investigation, making the error harmless.

                                         DISPOSITION

       The judgment is affirmed.




                                                  RUBIN, J.
WE CONCUR:




              BIGELOW, P. J.




              FLIER, J.




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