Filed 9/1/16 P. v. Hood 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B266771

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA065512)
         v.

SHADAYA HOOD,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Andrew E. Cooper, Judge. Affirmed.


         Narine Mkrtchyan, 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, Senior Assistant Attorney General, Stephanie C. Brenan,
Supervising Deputy Attorney General, and Charles S. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
                                                       ******
       A jury convicted Shadaya Hood (defendant) of resisting a peace officer (Pen.
Code, § 148, subd. (a)),1 a misdemeanor. On appeal, she challenges the trial court’s
(1) refusal to exclude an inculpatory statement she made to the arresting deputy when that
statement was disclosed after jury selection but prior to opening statements, (2) failure to
instruct the jury of her privilege to use reasonable force in response to the use of
unreasonable or excessive force by peace officers, and (3) review, during an in camera
hearing, of law enforcement personnel records pursuant to Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess). We conclude there was no error, and affirm.
                    FACTS AND PROCEDURAL BACKGROUND
I.     Facts
       In March 2015, an anonymous caller reported possible domestic violence in an
apartment in Palmdale, California. Several Los Angeles County Sheriff’s deputies
responded to the call. When they arrived, they heard yelling coming from the apartment
reported in the 911 call.
       Deputy Desiree Sanchez (Deputy Sanchez) knocked on the door, and defendant
answered. Deputy Sanchez heard a man yelling from somewhere in the apartment, but
defendant refused to say who was yelling and started to close the door. One of the other
deputies reached out his arm to stop defendant from closing the door, and Deputy
Sanchez grabbed defendant’s forearm and guided her out of the doorway and onto the
landing outside the apartment so that the other deputies could enter to check on the
yelling male.
       The evidence as to what happened next is disputed. Deputy Sanchez and Deputy
Terence Roberts (Deputy Roberts) testified that defendant wriggled free of Deputy
Sanchez and kicked her in the stomach; Deputy Sanchez testified to the kick, while
Deputy Roberts testified that he saw defendant raising her leg and saw that Deputy
Sanchez’s microphone was knocked loose, but did not see the kick itself. Defendant and



1      All further statutory references are to the Penal Code unless otherwise indicated.


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her “neighbor friend” testified that defendant did not kick or otherwise resist any of the
deputies.
       Deputy Roberts then forcibly placed defendant on the ground. He and Deputy
Sanchez thereafter placed defendant in handcuffs and escorted her to one of the patrol
vehicles.
II.    Procedural History
       The People charged defendant with resisting an executive officer. (§ 69.)
       Defendant filed a so-called Pitchess motion to have the court conduct an in camera
review of the personnel records of Deputies Sanchez and Roberts. The trial court found
good cause to conduct an in camera hearing of both deputies’ personnel records to look
for prior incidents involving excessive force or dishonesty. The court conducted those in
camera hearings and found no responsive records.
       The matter proceeded to trial. On the morning of the fifth day of trial, after four
days of jury selection and before opening statements, Deputy Sanchez told the prosecutor
that defendant, while in the patrol car following her arrest, stated, “I barely touched
[you].” The prosecutor immediately relayed this information to defense counsel, who
requested that (1) Deputy Sanchez be precluded from testifying to this statement, (2) the
jury be instructed on the prosecutor’s late disclosure, and/or (3) Deputy Sanchez be
subject to cross-examination regarding the late disclosure. The trial court noted that
defendant’s statement was not set forth in any report, and found that the prosecutor had
been unaware of defendant’s statement to Deputy Sanchez until Deputy Sanchez reported
it to her earlier that day. The court ruled that it would not exclude the statement because
any discovery violation was not willful, and declined to rule on defendant’s request for an
instruction “right now,” but stated that the fact of late disclosure was “fair game for
cross-examination.” Deputy Sanchez’s failure to disclose defendant’s statement in her
preliminary hearing testimony or prior reports was elicited during her direct and cross-
examinations.
       The trial court instructed the jury on the elements of resisting an executive officer
(§ 69) and on its lesser-included offense, the misdemeanor crime of resisting a peace

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officer (§ 148, subd. (a)). The court also gave most of the CALCRIM No. 2670
instruction, the standard jury instruction when an officer is engaged in the “lawful
performance” of her duties.
       During deliberations, the jury requested a readback of Deputy Roberts’s testimony
and asked the following questions: “Would pulling away be considered unlawful force?
What is the description of unlawful force?” The trial court ordered the readback of
testimony. The court also directed the jury to the CALCRIM No. 2670 instruction and
allowed the parties to provide further argument in response to the jury’s questions.
       The jury acquitted defendant of resisting an executive officer, but convicted her of
the misdemeanor crime of resisting a peace officer.
       The trial court sentenced defendant to three years of summary probation, including
30 days in the County jail and 12 anger management classes.
       Defendant timely appeals.
                                      DISCUSSION
I.     Violation of the Criminal Discovery Act
       Defendant argues that the trial court erred (1) by declining to hold an evidentiary
hearing evaluating whether defendant’s statement was more prejudicial than probative
under Evidence Code section 352, and (2) in refusing to impose any sanction for the
prosecutor’s violation of the Criminal Discovery Act. (§ 1054 et seq.)
       We reject defendant’s first argument for two reasons. To begin, she forfeited the
issue by not making an objection under Evidence Code section 352 and by not requesting
an evidentiary hearing. (Evid. Code, § 353 [objection to evidence required]; Mendoza
v. Ramos (2010) 182 Cal.App.4th 680, 687 [request for evidentiary hearing required].)
Further, it is not reasonably probable that the trial court would have excluded defendant’s
statement had an objection been made because Evidence Code section 352 balances the
probative value of evidence against its danger of unfair prejudice, and defendant’s
inculpatory statement had great probative value. Moreover, defendant has not articulated
what additional evidence would have been adduced on this point at an evidentiary
hearing.

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       We reject defendant’s second argument, also for two reasons. First, defendant has
not demonstrated that the prosecutor violated the Criminal Discovery Act. That act
requires a prosecutor to disclose the “[s]tatements of all defendants” “if [such statements]
[are] in the possession of the prosecuting attorney or if the prosecuting attorney knows
[them] to be in the possession of the investigating agencies” either 30 days before trial or
immediately upon obtaining such evidence. (§§ 1054.1, subd. (b) & 1054.7.) By its
plain language, and as our Supreme Court has confirmed, this statute does not require the
prosecutor to disclose statements that she does not possess and that she does not know the
investigating agencies possess. (People v. Whalen (2013) 56 Cal.4th 1, 65, fn. 27
(Whalen) [“[n]o statutory violation appears” where “the prosecutor did not possess the
undisclosed evidence and was not aware of it until it was mentioned during . . . cross-
examination”]; People v. Zambrano (2007) 41 Cal.4th 1082, 1131, 1133 [no violation
where prosecutor did not disclose letter that was not in his possession and of which he
was not aware], overruled in part on other grounds by People v. Doolin (2009) 45 Cal.4th
390.)2 Because the prosecutor did not possess or know of defendant’s statement to
Deputy Sanchez until the fifth day of trial and immediately disclosed it to the defense
upon learning of it, the prosecutor did not violate the Criminal Discovery Act.
       Defendant cites In re Littlefield (1993) 5 Cal.4th 122 and People v. Little (1997)
59 Cal.App.4th 426 for the proposition that a prosecutor is obligated to disclose
information of which he is unaware if it is “reasonably accessible” to him. It is unclear
whether Littlefield and Little remain good law in light of our Supreme Court’s subsequent
interpretation of the plain language of the Criminal Discovery Act. The holdings of
Littlefield and Little are, in any event, quite narrow: Littlefield held that a defense
attorney could not refuse to provide the addresses for defense witnesses by disclaiming


2      By contrast, a prosecutor is required by due process, under Brady v. Maryland
(1963) 373 U.S. 83, to disclose to the defense any favorable, material evidence in the
possession of investigators whether or not the prosecutor knows they possess it.
(Whalen, supra, 56 Cal.4th at p. 64.) However, Brady is not an issue in this case because
the undisclosed evidence is defendant’s inculpatory statement, which is not “favorable”
within the meaning of Brady. (People v. Verdugo (2010) 50 Cal.4th 263, 281.)

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knowledge of those addresses (Littlefield, at pp. 135-136) and Little held that a prosecutor
could not refuse to provide a witness’s “rap sheet” based on his lack of personal
knowledge (Little, at p. 433). Neither case purported to alter the principle that “the
prosecution has no general duty to seek out, obtain, and disclose all evidence that might
be beneficial to the defense” (Littlefield, at p. 135), and thus neither case obligates a
prosecutor to re-interview her witnesses looking for possible statements omitted from the
witness’s reports. The trial court’s ruling is unclear as to whether it found any Criminal
Discovery Act violation, but substantial evidence does not support a finding that the
prosecutor did. (People v. Riggs (2008) 44 Cal.4th 248, 306 (Riggs).)
       Second, even if the prosecutor violated the Criminal Discovery Act, the trial court
did not abuse its discretion in electing to allow cross-examination regarding the late
disclosure rather than to exclude defendant’s statement or to give a jury instruction
regarding late disclosure. (People v. Bowles (2011) 198 Cal.App.4th 318, 325-326.)
Preclusion of evidence is a penalty of last resort, available “only if all other sanctions
have been exhausted.” (§ 1054.5, subd. (c).) The court did not abuse its discretion in
determining that the inadvertent late disclosure of defendant’s statement did not warrant
excluding that statement from evidence, particularly because cross-examination was an
adequate remedy. The Criminal Discovery Act also empowers a court to “advise the jury
of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5,
subd. (b).) It is unclear whether defendant may press this as a viable option on appeal
because the court expressly held off ruling on this sanction, and defendant never renewed
her objection or pressed for a ruling. (See People v. Valdez (2012) 55 Cal.4th 82, 122
[“[b]ecause defendant failed to pursue and obtain a ruling on these objections, he may not
raise them on appeal”].) However, even if we deem the issue to be preserved, the
California courts have expressed significant doubts about the legality of instructions
informing jurors of discovery misconduct in criminal cases (e.g., People v. Lawson
(2005) 131 Cal.App.4th 1242; People v. Saucedo (2004) 121 Cal.App.4th 937; People
v. Cabral (2004) 121 Cal.App.4th 748; People v. Bell (2004) 118 Cal.App.4th 249), and
our Supreme Court has expressly declined to opine on the legality of using either of the

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current standard jury instructions—CALJIC No. 2.28 and CALCRIM No. 306—for
discovery misconduct (Riggs, supra, 44 Cal.4th at pp. 306-307). The trial court’s
decision to allow cross-examination rather than give a jury instruction of questionable
legality (and that may have injected error into the trial) was not an abuse of discretion.
II.    Instructional Error
       As noted above, the trial court instructed the jury on the charged crime of resisting
an executive officer (§ 69) and its lesser-included crime of resisting a peace officer
(§ 148, subd. (a)). Using the standard CALCRIM instructions, the court informed the
jury that the People had to prove, for either crime, that Deputy Sanchez was “lawfully
performing or attempting to perform her duties as a peace officer,” and that defendant
either “unlawfully used force to resist” her (for the section 69 crime) or “willfully
resisted” her (for the section 148 crime). The court further defined what it meant for a
peace officer to be “lawfully performing” her duties using the CALCRIM No. 2670
instruction, explaining (1) that “[a] peace officer may use reasonable force to arrest or
detain someone, to prevent escape, or overcome resistance, or in self-defense,” (2) that
that the jury can “not find the defendant guilty of resisting arrest or detention if the arrest
or detention was unlawful,” and (3) that, even “when making or attempting to make an
otherwise lawful arrest or detention,” “[a] peace officer is not lawfully performing his or
her duties if he or she is using unreasonable or excessive force.”
       Defendant argues that the trial court erred by not also giving the following,
optional language from the CALCRIM No. 2670 instruction: “If a peace officer uses
unreasonable or excessive force while [arresting or detaining] a person, that person may
lawfully use reasonable force to defend himself or herself. [¶] A person being arrested
uses reasonable force when he or she: (1) 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 (2) uses no more force than a reasonable person in
the same situation would believe is necessary for his or her protection.” (CALCRIM
No. 2670.) We review de novo defendant’s challenge to the jury instructions. (People
v. Jimenez (2016) 246 Cal.App.4th 726, 731.)

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       A trial court has a duty, on its own, to “‘instruct [the jury] on general principles of
law relevant to the issues raised by the evidence and necessary for the jury’s
understanding of the case.’” (People v. Townsel (2016) 63 Cal.4th 25, 58, quoting
People v. Martinez (2010) 47 Cal.4th 911, 953.) “That duty extends to instructions on
the defendant’s theory of the case, ‘including instructions “as to defenses ‘“that the
defendant is relying on . . . , or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s theory of the case.”’”’”
(Townsel, at p. 58, quoting People v. Abilez (2007) 41 Cal.4th 472, 517.)
       By its plain language, the instruction defendant says on appeal that the trial court
should have given applies when a defendant uses “reasonable force” to defend herself in
response to a peace officer’s use of “unreasonable or excessive force while arresting or
detaining” her. However, at trial, both defendant and her neighbor testified that the
defendant never used any force at all to resist the deputies. Thus, an instruction justifying
a defendant’s use of reasonable force is factually inconsistent with her position at trial
that she never resorted to force at all.
       Defendant points to the jury’s question asking for further definition of the concept
of “unlawful force” and for clarification as to whether “pulling away [would] be
considered unlawful force.” Defendant argues that the note suggests that the jury was
concerned about whether defendant could use “reasonable force” in resisting the
deputies’ use of “excessive or unreasonable” force. We disagree. As explained above,
the concept of “unlawful force” is what separates the felony of resisting an executive
officer from the misdemeanor of resisting a peace officer. (Compare § 69 with § 148,
subd. (a).) It focuses on whether defendant used “unlawful force,” not on whether she
used “reasonable force” and was justified in doing so.
       Consequently, the court did not err in declining to give an instruction that was
inconsistent with the defense presented at trial.
III.   Pitchess Review
       When the trial court conducts an in camera review of potentially discoverable
information from an officer’s personnel files, it must “make a record of what documents

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it examined before ruling on the Pitchess motion.” (People v. Mooc (2001) 26 Cal.4th
1216, 1229.) The ruling will be upheld absent an abuse of discretion. (Id. at p. 1228.)
We have independently reviewed the sealed reporter’s transcript of the in camera hearing
in which the trial court described each document examined in some detail. We conclude
that the court properly exercised its discretion in denying discovery.
                                     DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                                         _______________________, J.
                                                         HOFFSTADT
We concur:


_______________________, P. J.
BOREN


_______________________, J.
ASHMANN-GERST




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