Filed 5/2/16 P. v. Hernandez 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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,                                                          B262379

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. PA078689)
         v.

FRANCISCO JAVIER HERNANDEZ,

         Defendant and Appellant.




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


         Christopher Nalls, 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, Blythe J. Leszkay and Robert C.
Schneider, Deputy Attorneys General, for Plaintiff and Respondent.


                                                       ******
       Defendant Francisco Javier Hernandez, also known as Javier Francisco
Hernandez, challenges the judgment of conviction. We affirm.
                                          FACTS
      Prior to November 2, 2013, a court ordered defendant to refrain from possessing
any firearm. On November 2, 2013, officers lawfully stopped defendant for driving with
a modified exhaust. Defendant tried to flee. Several officers assisted in arresting
defendant. Their version and defendant’s version of the ensuing events are described in
detail below.
1. The Events According to Police
       On November 2, 2013, Officers Andre Silva and Katherine O’Brien were driving
in a marked police vehicle and observed defendant driving a vehicle with a modified
exhaust. Shortly after the officers activated their red lights and siren, defendant stopped.
When he approached the driver side door of defendant’s vehicle, Officer Silva noticed an
open beer bottle.
       Officer Silva asked defendant for his license and registration, and defendant did
not answer or comply. When Silva asked defendant to exit the vehicle, defendant
shouted aggressively, initially refusing to exit. Defendant eventually exited, but he
refused to turn around when Silva requested it. Defendant said, “I’m not giving you my
back” and attempted to flee. Silva was able to stop defendant, but was not able to control
him. Silva pushed defendant onto the hood of defendant’s vehicle. Defendant bit Silva’s
arm, causing Silva to suffer a crushing, burning sensation. Defendant and Silva
continued to struggle. Silva pushed defendant’s face to the ground, and defendant
punched Silva multiple times.
       Officer O’Brien called for backup. When defendant tried to reach into his
sweatshirt pocket, O’Brien tried to grab defendant’s arm to stop him from reaching into
his pocket. Officers Silva and O’Brien later learned that defendant had an illegal, fully
loaded firearm in his pocket.
       In the continued struggle between defendant and Officer Silva, defendant
“wrapped his hand and his fingers around the back of [Silva’s] head and ear and began to


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put pressure on [Silva’s] eye with his [(defendant’s)] thumb.” Defendant was trying to
push Silva’s eye in. Defendant was “pushing hard” and was trying to “destroy” Silva’s
eye. Officer O’Brien saw defendant’s fingers in Silva’s eye and heard Silva yell, “he’s
gouging my eye.” Silva was able to escape defendant’s hold. Silva punched defendant
causing defendant’s body to shift and his handgun to fall out of his pocket.
       Using his left arm, Officer Silva was able to place defendant in a headlock. He
observed defendant unsnap Silva’s gun holster and try to pull the gun out of the holster.
Officer O’Brien heard Silva’s holster unsnap. O’Brien yelled at Silva to warn him
defendant was trying to take his gun. Silva used his right elbow to push the gun back into
the holster. Defendant used his free hand to try to gouge Silva’s eye again. He used his
thumb to push into Silva’s eye. O’Brien was trying to grab defendant’s arm. Defendant
hit her multiple times as he was flailing his arms and also kicked her.
       Sergeant Michael Smith arrived when defendant was trying to retrieve Silva’s
gun.1 Sergeant Smith observed Officer Silva trying to push his gun down with his arm.
When Sergeant Smith attempted to assist the officers in controlling defendant, defendant
kicked Sergeant Smith in the chest.
       Officers Steven Smith and Ruben Aguirre responded to Officer O’Brien’s call for
assistance. When he tried to assist, defendant struck Officer Smith in his left eye.
Officer Aguirre used pepper spray and his collapsible baton. Together the officers
eventually were able to place defendant in restraints.
       Officer Silva suffered bruises in his arm where defendant had bitten him. He had
two sprained wrists and numerous scrapes. Officer O’Brien suffered abrasions and
multiple sprains. Officer Smith had a small contusion on his left eye.




1      Brandon Payne was a civilian passenger in Sergeant Smith’s vehicle. He observed
defendant kick Sergeant Smith and overheard an officer scream that defendant was trying
to take Silva’s gun.


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2. The Events According to Defendant and Witnesses Who Testified on His Behalf
       Defendant testified that on November 2, 2013, he was stopped by officers as he
was driving to his brother’s house. He admitted that he tried to flee, explaining that he
had a gun in his pocket and did not want to be incarcerated. Defendant knew he was not
permitted to poses a gun and knew the gun was loaded.
       Defendant testified that he believed Officer Silva was going to kill him and that he
needed to defend himself. He bit Silva after Silva was choking him. He did not want to
hurt Silva but wanted Silva to release him. Defendant admitted to touching officer
Silva’s eye, but claimed his goal was for Silva to release him from a chokehold.
Defendant testified: “I just touched it. And he let me go because—to me it seemed like
he—he knew that I could . . . hurt him. So he let me go. I’m sure nobody wants their eye
to be hurt.”
       Defendant testified he felt a bunch of officers on top of him. He was unable to
defend himself. Defendant denied reaching for Officer Silva’s gun. He also denied
trying to reach for the gun in his pocket. If he kicked anyone, it was in an effort to
protect himself. Defendant testified that he “gave them [his] hands, put [his] hands
behind [his] back and they wouldn’t cuff [him].” He testified he did not intend to kill the
officers.
       Defendant’s girlfriend Maria DeFlores arrived in the midst of the officers’ attempt
to restrain defendant. She believed the officers used excessive force and described
defendant as standing with his arms extended. She testified that defendant was neither
resisting arrest nor fighting with the officers. Yesenia Guevara, defendant’s brother’s
girlfriend, also testified the officers used excessive force. Two additional eyewitnesses
testified that they observed officers hitting defendant.
                                      PROCEDURE
1. Amended Information
       Defendant was charged with two counts of attempted murder of a peace officer
(Officers Silva and O’Brien), five counts of assault upon a peace officer by force likely to
produce great bodily injury (Officers Silva, O’Brien, Aguirre, Smith & Sergeant Smith),


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carrying an unregistered loaded handgun, attempted removal of Silva’s firearm, unlawful
possession of a firearm in violation of his probation conditions, and assault with intent to
commit mayhem.
2. Pretrial Discovery
       Before trial, defendant sought discovery of police officer personnel records of
Officers Silva, O’Brien, Aguirre, Smith and Sergeant Smith. Defendant’s attorney
included a declaration stating that the information was necessary because the officers and
Sergeant Smith “were not assaulted by Mr. Hernandez, who in turn did not reach for
Officer Silva’s gun, that they deliberately fabricated that fact in an effort to justify and
explain any complaints of excessive force or police brutality upon the person of
Mr. Hernandez.” Counsel’s declaration contrasted this statement with Silva’s
preliminary hearing testimony describing defendant’s conduct. Counsel’s declaration did
not identify specific acts of officer force against defendant, but instead emphasized that
Silva may have lied in his preliminary hearing testimony.
       The court held a hearing on defendant’s motion. The court asked defense counsel
for “more clarification on what you are actually seeking here.” The court stated: “It
appears that it is a claim for false reporting as to the reporting officers. If that’s the
category, false reporting as to the reporting officers, false testimony under oath as to
Officer Silva, and possible false reporting as to Sergeant Smith, who also prepared a
report, the court’s indicated will be to grant on those grounds as to those officers.”
       Defense counsel agreed that he was seeking information on false reporting and
added, “[i]n addition, maybe [the] allegation of excessive force.” The court suggested
there may need to be more information if defendant were seeking discovery on excessive
force. The court provided defense counsel additional time to prepare, and when the case
was recalled, defense counsel stated that he submitted. Defense counsel did not argue
that there was a need for evidence related to complaints of excessive force.
       The trial court found good cause for discovery of officer personnel files as to
Officer Silva and Sergeant Smith for false reporting. After an in camera review of the
personnel records, the court found no responsive documents.


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3. Jury Instruction on Assault with Intent to Commit Mayhem
       Jurors were instructed that defendant was charged with assault with intent to
commit mayhem. Jurors further were instructed that the People must prove “[w]hen the
defendant acted, he intended to commit mayhem. [¶] The defendant intended to commit
mayhem if he intended to unlawfully and maliciously: [¶] Put out someone’s eye or
injure someone’s eye in a way that would so significantly reduce his ability to see that the
eye would be useless for the purpose of ordinary sight. [¶] Someone commits an act
willfully when he or she does it willingly or on purpose. [¶] Someone acts maliciously
when he or she intentionally does a wrongful act or when he or she acts with the unlawful
intent to annoy or injure someone else.”
4. Defendant’s Convictions
       Jurors found defendant not guilty of the attempted murders. He was found not
guilty of assault with force likely to produce great bodily injury on Sergeant Smith. He
was convicted of the remaining counts.
       The trial court sentenced defendant to a total prison term of 10 years. This appeal
followed.
                                      DISCUSSION
1. No Error in Applying Pitchess
       Defendant argues that the trial court should have granted his Pitchess v. Superior
Court (1974) 11 Cal.3d 531 (Pitchess) motion as to Officers O’Brien, Aguirre, and
Smith. Defendant argues the court abused its discretion in denying the motion with
respect to the other officers. Defendant also requests this court review the in camera
Pitchess hearing with respect to Officer Silva and Sergeant Smith. As we shall explain,
we find no error.
a. No Error in Granting Motion Only As to Officer Silva and Sergeant Smith
       On appeal, defendant demonstrates no abuse of discretion in denying discovery as
to officers O’Brien, Aguirre, and Smith. (Uybungco v. Superior Court (2008) 163
Cal.App.4th 1043, 1049 [“We review a trial court’s ruling on a Pitchess motion for abuse
of discretion.”].)


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       Pitchess, supra, 11 Cal.3d 531 and its progeny establish a scheme for balancing a
criminal defendant’s due process right to a fair trial and a police officer’s privacy right to
maintaining the confidentiality of his or her employment file. (People v. Mooc (2001) 26
Cal.4th 1216, 1226.) To obtain discovery of police officers’ employment files “the
information sought must be requested with sufficient specificity to preclude the
possibility of a defendant simply casting about for any helpful information . . . .” (Ibid.,
citation omitted.) Only evidence that is similar to the alleged misconduct is discoverable.
(California Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 1010, 1020.)
Further, to show good cause for discovery, a Pitchess motion must include “‘[a]ffidavits
showing good cause for the discovery or disclosure sought, setting forth the materiality
thereof to the subject matter involved in the pending litigation and stating upon
reasonable belief that the governmental agency identified has the records or information
from the records.’” (People v. Mooc, at p. 1226.) Good cause requires a “‘specific
factual scenario’ which establishes a ‘plausible factual foundation’ for the allegations of
officer misconduct committed in connection with [the] defendant.” (California Highway
Patrol, at p. 1020.) “A showing of good cause is measured by ‘relatively relaxed
standards’ that serve to ‘insure the production’ for trial court review of ‘all potentially
relevant documents.’” (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1016.)
       Here, defendant set forth no allegations that Officers O’Brien, Smith, and Aguirre
committed misconduct in connection with defendant. Counsel’s declaration attached to
his motion identified only Officer Silva’s testimony and stated that it was “deliberately
fabricated.” Counsel’s statement of “maybe . . . excessive force” at the hearing failed to
set forth any explanation of how the information being sought would support his defense
or impeach the officers. (See Warrick v. Superior Court, supra, 35 Cal.4th at p. 1021;
People v. Thompson (2006) 141 Cal.App.4th 1312, 1317.) Stated otherwise, the factual
scenario outlined by counsel did not support discovery of the personnel records of
Officers O’Brien, Aguirre or Smith. (See Warrick v. Superior Court, at p. 1025
[counsel’s affidavit “must also describe a factual scenario supporting the claimed officer



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misconduct”].) Defendant therefore fails to demonstrate the trial court abused its
discretion in limiting discovery to Officer Silva and Sergeant Smith.
b. No Error in Finding No Responsive Discovery
       Defendant requests this court review the transcript of the in camera Pitchess
hearing. In response to defendant’s request, we have independently reviewed the sealed
transcript of the trial court’s in camera hearing. We conclude the trial court did not abuse
its discretion in finding no responsive documents.
2. No Instructional Error
       Defendant next argues that the trial court should have sua sponte instructed jurors
on simple assault as a lesser included offense of assault with intent to commit mayhem.2
A trial court has a sua sponte duty “to instruct fully on all lesser necessarily included
offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-
149.) “[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other hand, the
court is not obliged to instruct on theories that have no such evidentiary support.” (Id. at
p. 162; see People v. Campbell (2015) 233 Cal.App.4th 148, 162.)
       Although assault is a lesser included offense of assault with intent to commit
mayhem, no substantial evidence supported an instruction on the lesser offense. (People
v. De Angelis (1979) 97 Cal.App.3d 837, 841.) Importantly, defendant admitted that in
touching Officer Silva’s eye he “sent some kind of message to the officer that [he] better
let go of this guy [(defendant)] or he [(defendant)] may really hurt me.” Defendant
further testified that Silva let go because “he knew that I could . . . hurt him. . . . I’m sure
nobody wants their eye to be hurt.” This testimony showed that defendant willingly and


2      Penal Code section 203 provides: “Every person who unlawfully and maliciously
deprives a human being of a member of his body, or disables, disfigures, or renders it
useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is
guilty of mayhem.” Jurors were instructed defendant intended to commit mayhem “if he
intended to unlawfully and maliciously: [¶] Put out someone’s eye or injure someone’s
eye in a way that would so significantly reduce his ability to see that the eye would be
useless for the purpose of ordinary sight.”


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on purpose pushed on Silva’s eye in a manner showing he could seriously hurt him. The
other evidence was consistent. Silva testified that defendant intended to “push my eye in
or blow it out.” Officer O’Brien also confirmed that defendant was pushing on Silva’s
eye and she heard him yell that defendant was trying to gauge his eye. Additionally,
defendant pushed in Silva’s eye more than once, demonstrating that he intended to injure
Silva’s eye. Further, defendant repeatedly used force when he bit and punched Silva.
Defendant does not show an instruction on assault was warranted.
       Even assuming the trial court should have instructed jurors on assault, the failure
to do so was harmless. No evidence supported the conclusion that defendant as guilty of
only a simple assault. Therefore, contrary to defendant’s argument, there was no
reasonable chance a properly instructed jury would have found him guilty of only the
lesser offense.
                                     DISPOSITION
       The judgment is affirmed.




                                                 FLIER, J.
WE CONCUR:




       BIGELOW, P. J.




       GRIMES, J.




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