People v. BernalPeople v. Bernal
Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynn G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
* Pursuant to
Bernal also contends the trial court was required to give a sua sponte instruction on the meaning of “force or violence” as used in
We also reject Bernal‘s contention the prosecutor was guilty of any prejudicial misconduct.
Accordingly, we affirm the judgment of conviction.
FACTUAL SUMMARY
Three separate incidents, which occurred during the fall of 2011, gave rise to the
A. September 21, 2011
In the early morning hours of September 21, 2011, Bernal, a confederate identified as Ulice Rivera, and an unidentified female confederate robbed Phillip Broadway as he was attempting to leave a friend‘s home in Escondido. The robbery took place after a car one of the thieves was driving struck Broadway‘s car as he was trying to leave a party; when Broadway got out of his car, Bernal and Rivera began hitting Broadway while the female confederate climbed into Rivera‘s car and began searching it for items of value. After the assailants left, Broadway looked around his car and determined that the robbers had taken a ring, chef‘s knives, a sharpening tool, insurance paperwork and some business cards.
B. October 13, 2011
At 11:30 p.m. on October 13, 2011, two City of Escondido police officers, Russell Whitaker and Michael Duong, were on bicycles patrolling a bike path that runs along a flood control channel in Escondido. The flood control channel and bike path are in an area claimed by an Escondido street gang, the Diablos, and the area is also subject to a gang injunction.
Because the bike path is closed after dusk and is subject to a gang injunction, when the officers saw Bernal, Manuel Lopez and a juvenile on the path, they approached the trio. Bernal and Lopez are members of the Diablos’ rival, the Westside gang. As they were approaching the men, Lopez took a steak knife out of one of his pockets and
Officer Whitaker performed a patdown search of Bernal and discovered an axe in Bernal‘s front waistband. Officer Whitaker removed the axe and placed it in a secure area. Officer Whitaker then attempted to handcuff Bernal.
Officer Whitaker stood in back of Bernal and was using his left hand to hold on to Bernal‘s left hand while he used his right hand to retrieve his handcuffs from his belt. As Officer Whitaker was attempting to put the handcuffs on Bernal, Officer Whitaker felt Bernal‘s hands push against him as Bernal attempted to get onto the balls of his feet and begin running. Officer Whitaker dropped the handcuffs and grabbed Bernal around Bernal‘s waist with both of his hands. Bernal then began running west on the bike path, dragging Officer Whitaker with him. Bernal jerked his hips a couple of times—first to the right and then to the left—in an apparent effort to throw off Officer Whitaker. Bernal was able to drag Officer Whitaker approximately eight to 10 yards down the bike path before both men fell to the ground.
According to Officer Whitaker, from the time he was holding Bernal‘s left hand and was trying to handcuff Bernal, until the two men fell together on the bike path, he never lost physical contact with Bernal. Officer Whitaker, who was wearing shorts, suffered bruised and scraped knees.
After Officer Whitaker and Bernal fell to the ground, Officer Duong ran over and assisted Officer Whitaker in handcuffing Bernal.
C. November 30, 2011
On November 30, 2011, an Escondido resident reported that his home had been burglarized that day and that a television, a video camera, jewelry, clothing and a safe containing paperwork which belonged to family members were missing.
A short time later, Bernal was seen walking down a street in Escondido carrying a bag. Bernal placed the bag on the passenger seat of a car; the bag was retrieved later, and papers from the burglary were discovered inside.
At the time the stolen paperwork was retrieved, Bernal was placed under arrest and, during a patdown search, two baggies with usable amounts of methamphetamine were found on Bernal‘s person.
PROCEDURAL BACKGROUND
Bernal was charged in an information with resisting an executive officer with force or violence (
A jury found Bernal guilty of all five substantive charges. In a bifurcated proceeding, Bernal admitted the prior strike, prior prison term and on-bail allegations. The trial court sentenced Bernal to a term of 11 years eight months.
DISCUSSION
I
As his first issue on appeal, Bernal raises the contention that his conviction of violating
As the court in In re Manuel G. (1997) 16 Cal.4th 805, 814, stated: “The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. [Citation.]” (Italics added.) Here, Bernal was charged with and tried on the theory he was guilty of the second type of offense defined by
It bears emphasis that under the express terms of the statute, the second type of violation occurs when a defendant “knowingly resists, by the use of force or violence, such officer . . . .” Other than forceful resistance, the terms of the statute do not require that a defendant use any other manner of force or violence on the person of the executive officer. We also note that the CALCRIM instruction on
The force required for commission of the second type of violation of
On appeal, Carrasco argued the trial court should have given an instruction on the lesser included offense of resisting a peace officer in the discharge or attempt to discharge any duty within the meaning of
The facts considered by the court in Carrasco, as well as the court‘s conclusion those facts required the jury to find that force or violence was used, demonstrate that a violation of
We also note that in addition to the holding in Carrasco, at least one other court has assumed that
By interpreting
In sum, given the express terms of the statute and the holdings in Carrasco and Martin, we conclude that forceful resistance of an officer by itself gives rise to a violation of
Under this interpretation of the statute, Bernal‘s forceful attempt to escape from Officer Whitaker plainly violated
II
Next, Bernal argues the trial court should have sua sponte instructed the jury with respect to the meaning of “force or violence” as that phrase used in
As the Attorney General points out, “[i]n the absence of a specific request, a court is not required to instruct the jury with respect to words or phrases that are commonly understood and not used in a technical or legal sense.” (People v. Navarette (2003) 30 Cal.4th 458, 503.) “A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citation.]” (People v. Estrada (1995) 11 Cal.4th 568, 574section 69, the Legislature intended that the phrase “force or violence” have some peculiar meaning that differs from the common understanding of those terms, no sua sponte duty arose. (See People v. Griffin (2004) 33 Cal.4th 1015, 1023.)
As the court in Martin determined, the purpose of
In sum, the trial court was not required to give a sua sponte instruction on the meaning of force or violence.
III
Next, Bernal contends there is insufficient evidence in the record to support his conviction of street terrorism within the meaning of
“The substantive offense defined in
As the Attorney General notes, Bernal does not contest the jury‘s implied findings he was a member of a criminal street gang, Westside, or that he actively participated in that gang. Rather, Bernal argues the People‘s theory with respect to the third element, that Bernal promoted, furthered, or assisted in felonious conduct by another member of the gang, Lopez, when on October 13 Lopez was in possession of a concealed weapon, is unsupported by evidence in the record. Bernal contends there was no proof he knew Lopez was carrying a weapon and therefore no basis upon which to find that he was assisting Lopez in committing the crime of carrying a concealed weapon.
In rejecting this contention, the trial court stated: “I don‘t think technically the People even have to have expert testimony as to whether or not when individuals go into
Given the circumstances the officers encountered when they saw Bernal, Lopez and the juvenile on the bike path—gang members in a rival gang‘s territory, armed and one of whom had a can of spray paint—the expert‘s testimony that someone in Bernal‘s position would know that Lopez was armed was corroboration of the inference that otherwise arose from the circumstantial evidence. This is not an instance where the only evidence supporting an inference that a crime was gang related was an expert‘s opinion to that effect. (See People v. Ramon (2009) 175 Cal.App.4th 843, 851 (Ramon); In re Frank S. (2006) 141 Cal.App.4th 1192, 1195-1199 (Frank S.).) As the courts in Ramon and Frank S. held, more than an expert opinion is required to establish that a crime is gang related. However, here, as required by the court in Frank S., supra, 141 Cal.App.4th at page 1199, in addition to expert opinion, the prosecution did present circumstantial evidence Bernal “was in gang territory, had gang members with him, [and] had . . . reason to expect” the use of a weapon in a gang-related offense. The circumstantial evidence, supported by the expert‘s opinion, was more than sufficient to support a finding as to Bernal‘s knowledge.
In sum, the record here amply supports the prosecution theory that Bernal, Lopez
IV
Lastly, Bernal contends the prosecutor was guilty of four acts of misconduct that either singly or collectively require reversal of his convictions. We find no misconduct warranting any disturbance of the trial court‘s judgment.
A. Applicable Law
“‘Improper remarks by a prosecutor can “‘so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.‘” [Citations.]’ [Citation.] ‘But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves “‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.‘“’ [Citations.] ‘To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.’ [Citations.]” (People v. Earp (1999) 20 Cal.4th 826, 858.) Moreover, even if we determine that with respect to any misconduct an objection and admonition would not have cured the harm, reversal is required only if “‘on the whole record the harm resulted in a miscarriage of justice . . . .‘” (People v. Bell (1989) 49 Cal.3d 502, 535.)
B. Display of “WSG X3”
In searching Bernal‘s residence, law enforcement officers discovered a number of
During his opening statement, the prosecutor briefly presented, in a Power Point presentation, a compilation of the photographs recovered from Bernal‘s residence. The compilation included the photograph with the “X3” lettering. Defense counsel asked for a sidebar; in response, the trial court asked the prosecutor take the compilation off the Power Point screen. The prosecutor immediately complied.
Following the parties’ opening statements, the trial court indicated that, given the short period of time the jury was exposed to the Mexican Mafia reference and the rather oblique manner in which the exposure occurred in one photograph in a larger compilation of photographs, no prejudice occurred. Defense counsel agreed and stated: “[J]ust for the record, it came up briefly. I objected once I saw it, and I believe that the remedy was taking it down. I don‘t think there‘s any highlight in the manner in which it was done.”
Although the prosecutor clearly erred in displaying the composite photograph that
C. Expert Examination
Next, Bernal contends the prosecutor elicited an improper opinion from the expert with respect to whether Bernal knew Lopez was carrying a concealed weapon. We find no misconduct.
In the form of a hypothetical question, which set forth in detail the circumstances that Officers Whitaker and Duong confronted on the bike path on October 13, the prosecutor asked the expert whether the hypothetical gang member carrying an axe would have known that his hypothetical confederate was carrying a knife. The expert responded affirmatively. This form of questioning has been expressly approved by the Supreme Court. (See Vang, supra, 52 Cal.4th at pp. 1047-1050; People v. Gonzalez (2006) 38 Cal.4th 932, 946.) The use of hypotheticals, as opposed to a direct opinion, is proper because it preserves for the jury determination of whether the underlying facts are true and whether the expert‘s opinion based on those facts is valid. (Vang, at pp. 1047-1050.) Contrary to Bernal‘s contention, the prosecutor acted properly in questioning the expert in this manner.
D. Presumption of Innocence
During his closing argument, the prosecutor stated: “[A]lso keep in mind that the presumption of innocence lasted in this trial up until the point that Officer Whitaker was on the stand and said, The Defendant is one of the three I saw.” After an objection by counsel and a mild admonishment by the trial court, the prosecutor stated: “The Defendant is presumed innocent. Evidence has been presented, I argue to you, that shows beyond a reasonable doubt that he‘s not.”
The court in People v. Goldberg (1984) 161 Cal.App.3d 170, 189-190 (Goldberg) confronted a record that contained an argument similar to the one presented here, to wit: that the defendant was presumed guilty only until proof rebutting the presumption was presented rather than until the jury itself determined the presumption had been rebutted.
The court in Goldberg found that, as a practical matter, there is no difference between the two versions of the presumption. (Goldberg, supra, 161 Cal.App.3d at pp. 189-190.) “Once an otherwise properly instructed jury is told that the presumption of innocence obtains until guilt is proven, it is obvious that the jury cannot find the defendant guilty until and unless they, as the fact-finding body, conclude guilt was proven beyond a reasonable doubt. Since such a conclusion cannot be reached prior to deliberation and unanimous agreement, [the two versions] are essentially equivalent in effectively preserving the presumption up and until unanimous agreement is reached.” (Id. at p. 190.)
Here, the prosecutor‘s initial remarks, although consistent with
In his argument, the prosecutor also stated with respect to resisting arrest with force: “[W]hen you ask the question, [w]as there force? It‘s physical. That‘s what it means. Was the resistance physical in some way?” On appeal, Bernal argues that this was inaccurate because he believes a violation of
F. Cumulative
Because we have only found error in the prosecutor‘s inadvertent display of “X3” to the jury, and that error was not prejudicial, there is no basis upon which we can find that cumulative error requires reversal.
DISPOSITION
The judgment of conviction is affirmed.
BENKE, Acting P. J.
WE CONCUR:
AARON, J.
IRION, J.