Opinion
Defendant Monty Lopez celebrated Easter Sunday in 2003 by having a few beers with family and friends in the yard of his San Jose duplex. His loud conversation disturbed his next-door neighbor, who called the police on him, as she had before. The officer who arrived first at about 8:40 p.m. thought he would be able to defuse the situation by talking to both people. Defendant reacted aggressively to the officer’s presence, swearing, telling him to leave, and challenging him to fight. A friend restrained defendant. Other officers were called. Despite defendant’s verbal and physical resistance, the officers were eventually able to handcuff him and take him into custody. This led to a jury convicting defendant of one felony, resisting or attempting to deter the performance of an executive officer’s duties, and three misdemeanors, disturbing the peace, battering a peace officer, and resisting a peace officer.
Here we will determine, among other things, that defense counsel should have objected to evidence that each of the four defense witnesses had been arrested and that three of them had committed misdemeanor batteries and that defendant’s invocation of his right to counsel, however colloquially phrased (“Fuck you. I want to talk to my lawyer”), should not have been construed as an adoptive admission. These errors require a reversal of the judgment.
Trial Evidence
Maliciously disturbing another person by loud and unreasonable noise (count 1)
According to Clara Senteno, she and defendant were initially friendly neighbors, but this deteriorated when defendant’s “girlfriend” returned. Senteno had called the police on defendant several times before Easter Sunday, April 20, 2003.
Defendant did not testify at trial. The four defense witnesses—defendant’s wife, Catherine;
On cross-examination, Catherine admitted that she was arrested for forgery in 1998 and had been arrested by the police other times.
Deterring or resisting the performance of an executive officer’s duties by means of force or violence or threat thereof (count 2)
San Jose Police Officer David Seminatore responded to the disturbance call of threats between neighbors around 8:40 p.m. in uniform and in a marked patrol car. Having previously responded to several calls between these neighbors, he believed he could resolve it without another officer and without an arrest.
According to Seminatore, as he approached defendant, defendant’s wife asked why he was there. Defendant angrily shouted several times, “who the fuck is that?” Seminatore explained that there had been another complaint from their neighbor.
Defendant stood up and approached Seminatore, staggering as he walked. He appeared to be intoxicated, though able to care for himself. About five to eight feet from Seminatore, defendant leaned against a car in the driveway of his duplex. Seminatore explained that the neighbor had called. He asked if defendant had threatened her. Defendant replied, “I don’t give a fuck” and “fuck them.” Defendant removed a folding knife from his pants pocket and Seminatore took it from him.
According to defendant’s wife and Chino’s wife, Seminatore did not explain why he was there. Instead he just belittled defendant about being drunk and tried to provoke him by staring at him. According to Chino, Seminatore said that he was not there to arrest defendant, but he was responding to a neighbor’s complaint that defendant was encouraging people to attack the neighbors.
Seminatore repeatedly tried to obtain defendant’s reassurance that there would be no more problems if he left. Defendant swore and said he did not care about his neighbors complaining. He did not like them looking at the back of his house.
Chino and others told defendant to calm down. They reminded him he did not want to be arrested in front of his child.
After a few minutes of conversation, defendant repeatedly told Seminatore, “get the fuck out of here.” As defendant was shouting, his friends were yelling for him to calm down. Defendant moved away from the car and faced Seminatore with clenched fists. Chino, a large man, stepped between them, grabbed defendant, and held him against the car. His son, Ibrahin, helped. Chino testified that he was holding defendant back against the car because the
Seminatore backed up and called on his radio for a fill unit. Defendant struggled to be released and said that Seminatore better call everyone. When he was momentarily released, he pulled his jacket off and said, “come on,” which sounded to Seminatore like a challenge to fight. Chino again physically restrained defendant. Seminatore called for a “code three fill” emergency assistance.
As sirens approached, defendant became more agitated and said, “ ‘Come on, mother-fucker.’ ” Seminatore decided to arrest defendant for challenging him to fight and threatening him.
Resisting or obstructing the discharge of a peace officer’s duties (count 4)
A number of officers arrived in three patrol cars. Four officers walked up. Seminatore told them defendant had challenged him to fight and he needed help in taking defendant into custody. Chino complied with Seminatore’s requests to release defendant and move away. San Jose Police Officer Gabriel Reyes told Officer Michael Bui to arrest and handcuff defendant.
Several officers told defendant he was under arrest. Defendant asked why they were “messing with” him. Officer Bui told defendant to turn around and put his hands behind his back. Defendant, who smelled of alcohol, did not comply. He resisted Bui’s attempt to put his left arm in a twist lock. He squared up on Bui with clenched fists. Seminatore grabbed one of defendant’s arms. Defendant said, “No, you don’t.” Other officers tried to get defendant’s arms behind him.
Officer Reyes said they should take him down. Seminatore tried unsuccessfully to sweep defendant’s legs out from under him. The force of several officers pushed defendant to his knees and then facedown on the ground. Officer Reyes struck defendant twice on his buttocks with his baton to deter him from kicking the officers. Defendant pushed himself up to his hands and knees. Officers Bui and Reyes told defendant to stop resisting. As defendant got up, an officer used pepper spray that hit defendant and Seminatore, who was right behind defendant. Seminatore jerked back and hit Reyes’s head with the back of his head. Seminatore was blinded for about 20 minutes. Defendant continued to struggle and yell.
According to Chino, his wife and son, and defendant’s wife, the other officers swarmed defendant, put him on the ground, and kneed his back and head without first speaking to Officer Seminatore and without defendant resisting, struggling, or using racial slurs.
Using force or violence on a peace officer known to be performing his duties (count 3)
Officer Bui asked defendant to sit in the patrol car. Instead, defendant pushed off the door frame, turned around, and spit in Bui’s face. Defendant said, “fuck you,” or “take that, mother-fucker.” Bui’s eyes and lips smarted as though the spittle contained pepper spray. Defendant looked like he was getting ready to spit again. Officer Reyes tried to push defendant into the patrol car with his foot. Other officers had to take defendant to the ground again. Sergeant Pate told the officers to place defendant in a nylon wrap that secured his legs and arms. The police called an ambulance. It is police department policy to have a wrapped person examined at a hospital.
Defendant swore at the paramedics when they arrived. Defendant said to Officer Bui, “ ‘take these cuffs off or I’m gonna kill you.’ ” “ ‘I’m gonna kill your mom.’ ”
Defendant spit inside the ambulance at a paramedic, Nephty Landin, who then placed a mask on defendant. Defendant threatened to kill the paramedic when he was back on the street. Landin saw no injuries on defendant, though his face was red.
At the hospital defendant kept swearing and moving around. He tried to spit on Officer Bui again when his mask was removed. Defendant said he would remember Bui and would get him. Doctors examined defendant and cleared him to be jailed.
At the jail Bui read defendant his Miranda rights.
The Verdict and Sentence
After deliberating for two hours on two days, the jury convicted defendant of the felony of resisting or attempting to deter the performance of an executive officer’s duties (Pen. Code, § 69—count 2),
After denying defendant’s motion to strike his prior strike conviction, the trial court sentenced defendant to prison for six years, doubling the upper term due to the prior strike and imposing concurrent 30-day terms for each of the misdemeanors. The court awarded attorney fees not to exceed $1,000.
1. Ineffective Assistance of Counsel
On appeal defendant contends that the jury heard a variety of inadmissible and prejudicial evidence because his trial counsel failed to object.
A. Impeachment by misdemeanor arrests and convictions
Defendant claims that his trial counsel, a deputy public defender, should have objected when each defense witness was impeached by evidence that he and she had previously been convicted of or at least arrested for a misdemeanor.
To summarize, Chino admitted that he committed a battery in September 2001 and he gave a false name to a police officer in January 2002. His wife, Anna Vasquez, admitted an arrest for domestic violence in April 2003 and a conviction of a misdemeanor, the nature of which is unclear. His son, Ibrahin, admitted that he had been arrested about a month before the August 2003 trial. A year earlier he had committed an assault and battery in New Jersey. Defendant’s wife, Catherine, admitted that she was arrested for forgery in 1998 and had been arrested other times. Defense counsel objected only once, to the relevance of defendant’s wife being arrested for (hiving without a license.
The prosecutor asserted in opening argument that a witness’s bias is relevant to assessing his or her credibility. “[E]ach defense witness has recently been arrested by San Jose Police Department. Probably not the same officers, but certainly the same agency. These people probably have an ax to grind against this agency. And you can assume that that’s a reason that maybe they want to embellish, let’s say, the testimony about the arrest.”
The prosecutor argued further, without any defense objection, that the jurors already knew that “past criminal conduct” is also relevant to credibility. “If you’re faced with the testimony of two people and you know one of them is a criminal and one of them is Mother Teresa, you’re going to believe Mother Teresa over the criminal. It just makes sense. Okay? So something you can consider when deciding whether to trust someone is if they’ve had run-ins with the law before.
“And you’ll remember the only contact prosecution witnesses have had with police is when they’ve had to call the police on this fellow disturbing the neighborhood. Right? But you’ll remember that defense witnesses, each of them, have broken the law before. Catherine is a forger. Anna beat her husband after breaking things in the house. Ibrahin committed a battery in New Jersey. And Chino, the older fellow, lied to a police officer about his name when he was stopped, and he committed a battery last year.
“Now, they all have recent arrests, and they’re all on probation.[
In argument, defense counsel conceded that “[e]ach and every one of the civilian witnesses who testified on behalf of Mr. Lopez has a misdemeanor conviction,” and that these convictions were relevant to their believability; but, he argued, as the instruction stated, misdemeanor conduct “does not
Prior to the enactment of Proposition 8 in 1982, the Evidence Code precluded impeaching a person with specific acts of prior criminal conduct other than a felony conviction. (See Evid. Code, §§ 787-788.)
Forgery and giving a false name to an officer obviously involve a willingness to lie, and defendant does not suggest otherwise. Defendant argues that the prosecutor improperly impeached his witnesses with misdemeanor convictions and with misdemeanor conduct, such as assault and battery, that did not involve moral turpitude. It is true that simple battery is not a crime of moral turpitude. (People v. Mansfield (1988)
The Attorney General contends that it was proper to expose the biases of the defense witnesses. We recognize that, even if the commission of a battery does not prove the batterer has a disposition to lie, an arrest for battery might suggest a reason for the batterer to be biased against the arresting officers or agency. (Evid. Code, § 780, subd. (f); see People v.
Thus, none of the arrest evidence should have been admitted, due to the danger that it would be employed exactly as the prosecutor employed it—not simply to show that the witnesses might be biased against the police, but that each of them has an untrustworthy and criminal character.
To prevail on a claim of ineffective assistance, “First, a defendant must show his or her counsel’s performance was ‘deficient’ because counsel’s ‘representation fell below an objective standard of reasonableness [][]... under prevailing professional norms.’ [Citations.] Second, he or she must then show prejudice flowing from counsel’s act or omission. [Citations.] We will find prejudice when a defendant demonstrates a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ [Citations.] ‘Finally, it must also be shown that the [act or] omission was not attributable to a tactical decision which a reasonably competent, experienced criminal defense attorney would make.’ [Citation.]” (People v. Gurule (2002)
Determining whether this lapse was prejudicial is not easy. In People v. Bryden (1998)
The Attorney General asserts that any error was not prejudicial because “[t]he other evidence of [defendant’s] guilt was overwhelming.” But, the “other evidence” was simply the testimony of the prosecution’s percipient witnesses.
This case was a credibility contest between the witnesses for the prosecution and the defense. The jury was presented with sharply conflicting testimony. The prosecution witnesses, San Jose Police Officers David Seminatore, Michael Bui, and Gabriel Reyes, each described defendant as aggressively resisting their efforts to talk to him and to take him into custody. The four defense witnesses were not consistent about various details,
In this case, the jury did not take long to deliberate, just over two hours in two days. The jury obviously disbelieved the defense witnesses. The prosecutor urged them to do so in large part for improper reasons. In this case, this unhindered excess undermines our confidence in the outcome. We conclude that defendant’s convictions must be reversed. As we explain below, even if we had doubt that this omission alone justifies reversal, defendant was prejudiced in another way.
B. Invocation of right to counsel
As we explain more fully below (see pt. 2.A., post), the jury was instructed that a person’s failure to deny an accusation of a crime may be considered as an adoptive admission of guilt.
On appeal defendant complains that his trial attorney should have objected to this testimony and this argument. The Attorney General asserts that this evidence was admissible as an adoptive admission.
It is established that a person’s invocation of his or her right to remain silent cannot be used as evidence of guilt. Official advice pursuant to Miranda of a person’s right to remain silent carries with it an implicit assurance that “silence will carry no penalty.” (Doyle v. Ohio (1976)
When an arrestee is advised of his right to remain silent and he exercises that right in response to an official accusation, the doctrine of adoptive admissions does not apply. (People v. Jennings (2003)
Defendant argues that the express invocation of his right to counsel was not the only part of his statement that was inadmissible. He contends that in this context, “Fuck you” meant that he was now invoking his right to remain silent. The statements were inextricably intertwined. The Attorney General seeks to parse defendant’s statement, noting that the prosecutor only argued that “Fuck you” was an adoptive admission.
People v. Samayoa (1997)
Regarding the right to counsel, “Although a suspect need not ‘speak with the discrimination of an Oxford don,’ [citation], he must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” (Davis v. United States (1994)
In this case, the jury should not have been asked to consider defendant’s colorful invocation of his right to counsel as an adoptive admission. Defense counsel should have brought a motion in limine or, at least, if defense counsel had objected during trial, the trial court should have directed the jury to disregard this testimony. (Cf. People v. Lucero (2000)
Had Officer Bui merely mentioned defendant’s statement, it would be easier to determine that defendant was not prejudiced by it. (Coffman, supra, 34 Cal.4th at pp. 66-67.) However, it featured prominently in the prosecutor’s jury argument as one of two adoptive admissions by defendant. To compound the prejudice, as we explain below (see pt. 2.A., post), the jury was inadequately instructed about admissions. In light of these two combined errors and the prejudicial admission of arrest evidence, we conclude that all defendant’s convictions must be reversed.
C. Defendant’s prior bad acts
Defendant complains that the prosecutor went too far in impeaching the opinion of Chino’s wife, Anna Vasquez, that defendant is “good people.”
In cross-examination, the prosecutor established that Vasquez was unaware of defendant’s criminal history, including serving time for domestic violence, a stabbing, and assault on a police officer. She said this would not change her opinion of him.
When a witness testifies to a defendant’s good reputation, the prosecutor is entitled to ask in good faith if the witness has heard of misconduct by the defendant. (People v. Ramos (1997)
We understand the rule invoked by defendant to be limited to reputation witnesses. When a witness offers an opinion of a defendant’s good character, it is often based on personal knowledge as well as reputation. (People v. Hurd (1970)
2. Instructions
A. Admissions
On appeal defendant contends that the trial court erred in incompletely instructing the jury about admissions.
The jury was instructed in terms of CALJIC No. 2.71.5 that a jury may consider the following circumstances as “an admission [by the defendant] that the accusation was true”: he was accused of the crime charged; he heard and understood the accusation; he had an opportunity to deny it; and he failed to do so. The jury was instructed to disregard any statement that it found did not amount to an admission.
However, “admission” was not defined in terms of CALJIC No. 2.71 as a statement by the defendant that tended to prove his guilt of the crime charged, nor was the jury instructed to view cautiously evidence of an oral admission (CALJIC Nos. 2.71, 2.71.7) and that an admission alone is not enough to convict a person (CALJIC No. 2.72).
The Attorney General asserts that defendant should have requested these instructions. However, an instruction like CALJIC No. 2.71 should be given sua sponte when, as here, there is evidence of a defendant’s oral admission. (People v. Beagle (1972)
The omission of cautionary instructions about admissions “does not constitute reversible error if upon a reweighing of the evidence it does not appear reasonably probable that a result more favorable to defendant would have been reached in the absence of the error.” (People v. Beagle, supra,
The Attorney General asserts that these instructional omissions were harmless because there was no dispute about what defendant said, there was ample other evidence of his crimes, and the jury was otherwise instructed about evaluating the credibility of a witness.
As stated above, defendant was prejudiced by the jury being allowed to consider his invocation of his right to silence as one of two adoptive admissions. This prejudice was compounded by the failure to give cautionary instructions about oral admissions.
B. Resisting an executive officer
In count 2, defendant was charged with violating section 69,
Although the Use Note to CALJIC No. 7.50 does not clearly say so, that instruction purports to describe the elements of both related offenses. The
Defendant justifiably complains that the trial court should have instructed the jury sua sponte about the elements of attempting to deter, particularly since the prosecutor relied on this theory.
The court instructed the jury in terms of CALJIC No. 4.20 that defendant’s voluntary intoxication was not a defense to the crimes charged. Defense counsel said “yes,” when asked if he wanted this instruction.
This court has previously determined that a defendant’s intoxication might create a reasonable doubt that he had the specific intent to deter or prevent a police officer. (MacKenzie, supra, 34 Cal.App.4th at pp. 1280-1281.) Thus, CALJIC No. 4.20 is inapplicable to this type of the offense. (Cf. People v. Mendoza (1998)
We need not determine whether this error was invited. On retrial the jury should not be instructed that CALJIC No. 4.20 applies to an attempt to deter an officer.
Defendant also asserts that the trial court should have instructed the jury about the lesser offenses included in a violation of section 69, namely sections 148 and 415.
Section 148, subdivision (a)(1), prohibits “Every person who willfully resists, delays, or obstructs any . . . peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment.” The trial court considered and rejected the idea of giving section 148 as a lesser included offense.
In this case, as the jury was instructed, defendant was charged with violating section 148 in count 4. To distinguish the crimes, the prosecutor told the jury in closing argument that the violation of section 148 “is essentially the same thing as the 69, Count 2, except without the force or violence. I’m just going to suggest to you that consider the 148 as though it were everything that happened after the arrest. Consider the 69 as though it was everything that happened before the arrest.”
The jury was also instructed that defendant was charged with violating section 415 in count 1 by willfully and maliciously making a loud and unreasonable noise that disturbed another person.
We agree with People v. Belmares (2003)
Defendant contends that Belmares is distinguishable due to the difference in the pleadings in this case. Defendant contends that the violation of section 69 was alleged in the conjunctive (as quoted in fn. 15, ante), thereby limiting proof to resisting an officer in the present performance of his duty, which would also violate section 148.
Defendant misunderstands the significance of these allegations. When a crime can be committed in more than one way, it is standard practice
D. Resisting arrest
On appeal, defendant contends that the trial court erred by neither naming a victim of the section 148 charge nor giving a unanimity instruction like CALJIC No. 17.01. He argues when “some jurors could base their conclusions on defendant’s conduct towards one officer with other jurors reaching their conclusion with reference to defendant’s conduct in resisting a different officer,” then either the prosecutor must elect the section 148 victim or the jury should be given a unanimity instruction. (People v. White (1980)
The evidence was that when Officer Bui told defendant to turn and put his arms behind his back because he was under arrest, defendant did not comply. He struggled when Officers Bui and Seminatore grabbed his arms. He struggled when several officers, including Bui and Seminatore, took him to the ground. When he got up, other officers, including Johnson and Beiderman, took him to the ground again. Later, defendant pushed away from the patrol car when Officer Reyes tried to push him inside.
As noted above, the prosecutor asked the jury to consider that the section 148 violation “was everything that happened after the arrest.” The section 69 violation occurred before the other officers arrived.
When two offenses are so closely connected in time that they form part of one transaction, no unanimity instruction is required. (See People v. Diedrich (1982)
The prosecutor’s election to consider “everything” that defendant did after the initial attempt to arrest him as the section 148 violation meant that every officer whom defendant resisted was a victim of this charge. There was no evidentiary basis for the jury to conclude, for example, that defendant resisted Officer Bui, but not Officers Beiderman and Johnson. (People v. Riel, supra,
E. Lawfulness of arrest
The jury was appropriately instructed that an element of the charges of violating sections 69, 148, and 415 was that the peace officer was engaged in the performance of his or her duties and that those duties do not include employing excessive force to make an arrest. (CALJIC No. 9.29; In re Manuel G., supra,
If defendant wants further instructions on retrial about an arrestee’s justification in using reasonable force to protect himself against excessive force in terms of CALJIC Nos. 9.28 and 5.30, he may request them. It does not appear to us that the trial court was required to give them sua sponte, particularly considering that the defense argument was simply that the officers employed excessive force against a passive defendant.
F. Defendant’s right to rely on the evidence
The jury was instructed in terms of CALJIC No. 2.60: “A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.”
The jury was not instructed in terms of CALJIC No. 2.61, which states: “In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against [him] [her]. No lack of testimony on defendant’s part will make up for a failure of proof by the People so as to support a finding against [him] [her] on any essential element.”
Instead, the judge added the following second sentence to CALJIC No. 2.60 as quoted above. “No lack of testimony on the defendant’s part will relieve the People of their burden of proving every essential element of the crimes charged beyond a reasonable doubt.” Defense counsel agreed to this combination of these instructions.
On appeal defendant contends that the trial court erred in failing to instruct the jury about a defendant’s right, in choosing not to testify, to rely on the state of the evidence.
A defendant is entitled to have both instructions given on request. (People v. Evans (1998)
Since defendant did not request that CALJIC No. 2.61 be given in its entirety, we conclude that he cannot complain on appeal that only part of it was given.
3. Discovery of Evidence Against Police Officers
In advance of trial defendant filed a motion under Pitchess v. Superior Court (1974)
4. Attorney Fee Order
The probation report in this case recommended that defendant be ordered to pay $1,000 in attorney fees if appropriate.
In support of defendant’s motion to strike his prior strike conviction, defendant submitted a letter to the court stating in part, “I have [established over $16,000 worth of credit, bought a new 2001 Silverado, a 95 Civic, paid $4,000 of $8,000 to buy a pressure washing business from my brother in Arizona.” Defense counsel mentioned defendant’s business plans.
At sentencing the court ordered defendant to pay attorney fees “not to exceed $1,000.”
Defendant did not object at the time, but on appeal he contends that the court had no evidence supporting the implied finding of his ability to pay or overcoming the presumption that defendant, who has been sentenced to
In the absence of a guilty plea, the sufficiency of the evidence to support a finding is an objection that can be made for the first time on appeal. (People v. Rodriguez (1998)
Section 987.8 authorizes the court to order criminal defendants to pay all or part of the cost of their appointed counsel after the trial court determines the defendant has a present ability to pay.
While this statute ordinarily may not require an express finding of ability to pay (cf. People v. Phillips (1994)
Since we are reversing defendant’s convictions, the trial court will have an opportunity to reconsider this attorney fee award in light of our observations.
The judgment is reversed.
Rushing, P. J., and Premo, J., concurred.
Notes
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
We use nicknames and first names of some witnesses for clarity and to avoid confusion over common last names and not out of disrespect.
On direct examination, Catherine testified that Officer David Seminatore was scaring her on April 20, 2003, by the way he stared and did not respond to her questions. “Usually an officer would state why he’s there and be really relaxed.” She admitted the police had come to her house before.
On cross-examination, the prosecutor asked if Catherine remembered testifying about prior contact with the police. The following cross-examination ensued.
“Q: And is it fair to say that you don’t like the police?
“A: No. It’s not fair.
“Q: Is it fair to say that some of these times you’ve had contact with the police you’ve been arrested?
“A: No.
“Q: Well, you committed a forgery in 1998 right?
“A: Oh, my goodness. Yeah.
“Q. You were arrested on that, right?
“A. Yes.
“Q. Is that kind of hard for you to remember?
“A. Yes.
“Q. Okay.
“A. I tried to block it out.
“Q. Well, being arrested is, committing a crime I guess is something that people usually remember. Is that an unusual thing in your life?
“A. Yes.
“Q: Well, you’ve been arrested other times, right?
*1516 “A: I don’t understand.
“Q: Well—
“A: How many other times do you mean being arrested is for?
“Q: I’m just asking you now. You say it’s unusual for you to be arrested?
“A: Yes.
“Q: I just want to ask you about whether that’s true or not. Do you remember being arrested January of this year for driving without a license, right?
“A: Driving without a license? I was arrested?
“MR. SPIELMANN: I will object as to relevance.
“THE WITNESS: Oh, my gosh.
“MR. SPIELMANN: May we approach?
“THE COURT: All right.
“(Whereupon, the attorneys approached the bench and a discussion was had off the record.) “Q: (by Mr. Flattery) Ma’am, is it fair to say you have had several contacts with the police generally?
“A: Several.
“Q: And some of those have been when they arrested you, right?
“A: Yes.
“Q: And you’re not really happy with the police about that, right?
“A: What I did in my past—
“THE COURT: Please answer the question.
“THE WITNESS: I’m okay with it. I did what I had to do.
“THE COURT: Please answer the question.
“THE WITNESS: What was the question?
“Q: (by Mr. Flattery) You are not—
“A: Not all—
“Q: —all these arrests in the past?
“A: No, that’s not true.
“Q: And just so we’re clear. One of those arrests was when you committed a forgery in 1998?
“A: Yeah. Okay.
“Q: I’m not gonna ask you about any more.
“A: Any more?”
Miranda v. Arizona (1966)
Further unspecified section references are to the Penal Code.
This objection was described earlier. (See fn. 2, ante.)
Actually, Vasquez was awaiting sentencing at the time of trial, as the prosecutor’s cross-examination had established. Her son, Ibrahin, admitted he was on probation.
Evidence Code section 787 states: “Subject to Section 788, evidence of specific instances of his conduct relevant only as tending to prove a trait of his character is inadmissible to attack or support the credibility of a witness.”
Subsequently enacted Evidence Code section 452.5 creates an exception to this hearsay rule and allows prior misdemeanor conduct to be proved by official records of misdemeanor convictions. (Cf. People v. Duran (2002)
We note the prosecutor did not mention in argument the one conviction of Anna Vasquez of an unspecified misdemeanor following her arrest for domestic violence. Misdemeanor sexual battery (People v. Chavez (2000)
For example, Chino said he saw no officer with a drawn gun, while his wife said that a female officer had her gun out and aimed it at everyone.
Actually Bui testified that this conversation occurred later at the jail after defendant had initially waived his Miranda rights.
In light of this conclusion, we will consider the remaining arguments only insofar as needed to provide guidance for further proceedings. We have no occasion to reach defendant’s claim of sentencing error under Blakely v. Washington (2004)
The jury was instructed: “A witness has been asked on cross-examination if he or she has heard of reports or incidents of certain conduct of the defendant inconsistent with the traits of good character to which the witness has testified. These questions and the witness’[s] answers to them may be considered only for the purpose of determining the weight to be given the opinion of the witness or to his or her testimony as to the good character of the defendant.
“These questions and answers are not evidence that the reports are true, and you must not assume from them that the defendant did, in fact, conduct himself inconsistently with those traits of character. HU • • • IT
“This evidence, if believed, may not be considered by you to prove that the defendant is a person of bad character or that he has a disposition to commit crimes. It may be considered by you only for the limited purpose of determining if it tends to show the strength or weaknesses of the witnesses] opinion.”
Section 69 states: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
The jury in this case was instructed that defendant was charged in count 2 with violating section 69 because he “did attempt, by means of threats and violence, to deter and prevent an executive officer, David Seminatore from performing a duty imposed upon the officer by law and knowingly resist, by the use of force and violence, the executive officer in the performance of his duty.”
The jury in this case was also instructed as follows in terms of CALJIC No. 7.50 with one omission. “[Defendant is accused [in count 2] of having violated section 69 of the Penal Code, a crime.]
“Every person who willfully [and unlawfully] attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon that officer by law, or who knowingly resists, by the use of force or violence, an executive officer in the performance of his or her duty, is guilty of a violation of Penal Code section 69, a crime.
“An ‘executive officer’ is a public employee whose lawful activities are in the exercise of a part of the sovereign power of the governmental entity employer, and whose duties are discretionary, in whole or in part. Any employee charged with the responsibility of enforcing the law is an executive officer.
“In order to prove this crime, each of the following elements must be proved:
“[1. A person knowingly [and unlawfully] resisted an executive officer in the performance of his or her duty; and
“2. The resistance was accomplished by means of force or violence,] or threat thereof.”
“Or threat thereof’ was added at the prosecutor’s request.
The jury was not told in terms of CALJIC 7.50: “1. A person willfully [and unlawfully] attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and [1] 2. The attempt was accomplished by means of any threat or violence.”
In light of this conclusion, we need not consider which standard of prejudice applies.
The conditional nature of this order suggests that some other determination is to take place before an amount is finally determined. The statute does provide: “The court may, in its discretion, order the defendant to appear before a county officer designated by the court to make an inquiry into the ability of the defendant to pay all or a portion of the legal assistance provided.” (§ 987.8, subd. (b).) But we see no such order in the record.
Section 987.8, subdivision (f) provides in part: “Prior to the furnishing of counsel or legal assistance by the court, the court shall give notice to the defendant that the court may, after a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost of counsel. The court shall also give notice that, if the court determines that the defendant has the present ability, the court shall order him or her to pay all or a part of the cost.” “In any case in which a defendant is provided legal assistance, either through the public defender or private counsel appointed by the court, ... the court may, after notice and a hearing, make a determination of the present ability of the defendant to pay all or a portion of the cost thereof.” (§ 987.8, subd. (b).) “If the court determines that the defendant has the present ability to pay all or a part of the cost, the court shall set the amount to be reimbursed and order the defendant to pay the sum to the county.” (§ 987.8, subd. (e).) At an ability to pay hearing, the court shall consider a defendant’s present financial position. (§ 987.8, subd. (g)(2)(A).)