Okoro v. City of Oakland Police Officer Enoch Olivas




Filed 12/3/10 Okoro v. City of Oakland Police Officer Enoch Olivas CA1/5




NOT TO BE PUBLISHED IN OFFICIAL REPORTS


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

SYLVESTER OKORO, Plaintiff and Appellant, v. CITY OF OAKLAND POLICE OFFICER ENOCH OLIVAS et al., Defendants and Respondents.

A126397 (Alameda County Super. Ct. No. RG05215668)

Sylvester Okoro (Okoro) appeals from a judgment entered against him in his civil rights lawsuit against respondent police officers, Lisa Ausmus and Enoch Olivas. Okoro contends: the court erred in instructing the jury regarding probable cause for his arrest; substantial evidence did not support the jury’s verdict; the court should not have dismissed certain causes of action on the basis of statutory immunity or privilege; and the court erred in precluding the testimony of two purported expert witnesses. We will affirm the judgment.
I. FACTS AND PROCEDURAL HISTORY
Okoro filed his third amended complaint on January 3, 2007, against Lisa Ausmus, Enoch Olivas, and others, alleging causes of action for violation of his civil rights under 42 U.S.C. section 1983, false arrest and imprisonment, battery, trespass to chattel, intentional and negligent infliction of emotional distress, negligence, and defamation.[1]
A. Motions in Limine
Before trial, the court granted respondents’ motions in limine to (1) dismiss the fourth, fifth, sixth and seventh causes of action (trespass to chattel, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence) on grounds of immunity (Govt. Code, §§ 820.2, 820.4); (2) dismiss the eighth cause of action (defamation) under Civil Code section 47; and (3) preclude the testimony of one of Okoro’s purported expert witnesses, Fikre Tolossa, who had been proffered to testify as to the value of a manuscript allegedly missing from Okoro’s vehicle when the police returned the vehicle to him.
Trial proceeded on the first, second, and third causes of action for violation of Okoro’s civil rights, false arrest and imprisonment, and battery. As defenses, respondents maintained that they arrested Okoro upon probable cause to believe that he had committed a felony, they did not use unreasonable or excessive force in arresting him, and Okoro consented to the search of his home and automobile and the impounding of the automobile.
B. Evidence at Trial[2]
On June 28, 2001, Oakland police officer Lisa Ausmus was dispatched to the intersection of 98th Street and MacArthur Boulevard to meet a citizen caller, Della Wilson, pertaining to a possible child abduction. Ausmus arrived at the scene and located Wilson, along with three children: I., L., and Leonard.
1. Police Investigation
Wilson informed Officer Ausmus that she had observed two little girls standing on the sidewalk talking to a bald stocky black man, who was sitting in his car. Wilson noticed the children were standing away from the car as if they did not know him. After the man drove away, Wilson asked the girls whether they knew him. They said no. She asked the children what he asked, and they responded that he asked them where they lived and said he wanted to be their friend. Wilson informed Ausmus that the man was driving a gray four-door 1990’s Toyota Corolla, with partial license plate number 4ZD385 and a number of teddy bears and stuffed animals in the rear window of the car. Ausmus believed Wilson was truthful. Wilson signed a written statement setting forth her observations.
Officer Ausmus obtained a statement from victim I., who was nine or 10 years old. I. said she first came in contact with the man at about 8:00 a.m. on June 27, 2001, around 99th Avenue and MacArthur Boulevard. He drove up in a small gray Toyota, asked her how old she was, and left. At about 8:00 a.m. on June 28, I. and her cousin L. were walking in the same area when the same bald black man in the same gray car stopped. The man asked I. where she lived, and she replied that she could not tell him. The man told I. that he wanted to be her friend; I. responded that she had enough friends and walked away. The man was wearing “a white button-up shirt and brown khaki pants” and had an accent. He had “blue, yellow and pink stuffed animals in the back window of his car.” I. signed a written statement recording her account.
Officer Ausmus also spoke with Leonard, who was 10 or 11 years old. He recounted the June 27 incident and recalled that I. also told him about the same man approaching her on June 28, asking her where she lived and stating he wanted to be her friend. Officer Ausmus wrote down Leonard’s statement and read it back to him, and Leonard signed it.
Oakland police officer Ross arrived on the scene and took a statement from L. L. stated that she was present on June 27 and 28 when the man approached her and I. L. confirmed I.’s account of the events. Officer Ausmus had no reason to believe the children were not being truthful.
Because of the nature of the purported crime, Officer Ausmus called Oakland Police Sergeant Enoch Olivas to the scene. There, Sergeant Olivas spoke with Officer Ausmus and witness Wilson. Both Ausmus and Olivas were alarmed that a strange person was contacting two little girls two days in a row, in approximately the same place and at approximately the same time, and had stuffed animals in the back of his car, suggesting an attempt to gain friendship with children.
Using the partial license plate number obtained from eyewitness Wilson, the police determined that the vehicle was a “‘90s Toyota” registered to Okoro. Officers received a photograph of Okoro from the Department of Motor Vehicle’s records in the afternoon of June 28, and used booking photos of other individuals to assemble a photographic lineup of six photographs. That evening, police went to the home of the three children and showed the photographic lineup to each one separately. L. picked out Okoro’s photograph “almost right away,” and I. positively identified Okoro as well. Leonard tentatively identified Okoro. The mother or grandmother of the children confirmed that none of the people in the photographic lineup (including Okoro) were family members or should have contact with the children. Officer Ausmus’ impression was that the children were afraid of Okoro.
The police also showed the photographic lineup to eyewitness Wilson. Wilson tentatively identified Okoro, saying he was similar to the man she saw talking with the children.
2. Officers’ Belief That Okoro Committed the Crime of Stalking
Officer Ausmus testified that she and Sergeant Olivas suspected Okoro of stalking a child. (Pen. Code, § 646.9) “Q. Did you believe once you had that information from Ms. Wilson and the children, at that point was it your belief that whoever this man was that he had committed a crime‌ [¶] A. Yes. [¶] Q. And what crime at that point were you considering, or did you believe he had committed‌ [¶] A. Sergeant Olivas had mentioned stalking, and we had gone over stalking and we believed he had committed stalking with these children.”
Officer Ausmus explained that the crime of stalking requires a “threat,” which need not be verbal but can be “a perceived threat, something you feel threatened by.” In her view, Okoro had made such a threat: “Because he had contacted [the two girls] two days in a row, again, at the same place at the same time with the stuffed animals. That felt like a credible threat as the children were perceiving it with the two contacts back to back.” Officer Ausmus also noted that the children appeared frightened. Based on the statements Ausmus received from Wilson and the children, she also believed the situation indicated child abuse or sexual assault.[3]
3. Arrest of Okoro
Oakland police officers convened on the evening of June 28, 2001, to go to Okoro’s residence for a “knock and talk,” meaning that they would invite him to step outside and then arrest him. At approximately 10:00 p.m., Ausmus knocked on Okoro’s door and identified herself as an Oakland police officer. Okoro opened the door. Recognizing Okoro from his photograph, Ausmus asked him to step outside. He did, and she handcuffed him. Okoro did not resist, and no officers pushed him. He was placed under arrest.
By Okoro’s account at trial, when he answered the door to his apartment, a number of officers pushed him to the floor onto his stomach and handcuffed him. The officers instructed Okoro to go outside the apartment and sit on the porch, which he did. He was then transported to the Oakland police department where, according to Okoro, officers placed him in a small room and “chained” his left hand to a table for 30 to 45 minutes.
4. Search of Okoro’s Residence and Automobile
After Okoro was arrested, Officer Ausmus filled out a consent to search form. Based on Ausmus’ familiarity with procedure, she believed Sergeant Olivas explained the form to Okoro as he gave it to him to sign. The form noted Okoro’s apartment and vehicle and stated: “I have been told that I have the right to refuse to allow the police to search my person or property. I have given my consent voluntarily without threat or promise.” Okoro signed the form, and his signature was witnessed by Sergeant Olivas.
Okoro admitted at trial that Sergeant Olivas gave him the consent to search form. However, Okoro claimed that he signed the form because police officers with guns told him that he would go to jail if he did not sign it, he was afraid for his life, and he had just started a new job. He claimed that he did not even read the form before he signed it.
After Okoro signed the consent to search form, officers entered Okoro’s residence and conducted a search. Looking only for items that might be in plain view, officers found no evidence of child pornography, molestation, or abuse.
Okoro’s vehicle was impounded and inventoried. Police found stuffed animals in the rear window area, along with umbrellas and miscellaneous clothes. It was noted that the vehicle had “dents and scratches 360 degrees, meaning all the way around” the car. A police technician took photographs of the vehicle, which were published to the jury.
5. Arrest Report
After transporting Okoro to the police station, Officer Ausmus and Sergeant Olivas discussed the matter with the investigating officer, Shan Johnson. Over the objections of Ausmus and Olivas, Officer Johnson decided that the appropriate offense to be charged against Okoro would be child annoying (Pen. Code, § 647.6, subd. (a)), a misdemeanor, rather than child stalking (Pen. Code, § 646.9), a felony wobbler.
Accordingly, Officer Ausmus described Okoro’s offense on the consolidated arrest form as “647.6(a),” referring to child annoying. The arrest report noted that Okoro was a bald, black male, 5’6” tall and 174 pounds, wearing a “[white]/[blue]” shirt and brown pants.[4]
6. Decision Not to Prosecute
Officer Johnson proceeded to question Okoro at the police station; the audio tape of the interview was played for the jury. During the interview, Okoro never complained that the officers had “roughed him up” or that he had not consented to the officers entering his home or inspecting his car.
Officer Johnson subsequently wrote to the district attorney that Officer Ausmus had responded to Okoro’s residence and “arrested him for annoy/molest of child,” since that was the offense listed on the arrest report. Johnson presented the case to the district attorney, and the district attorney declined to prosecute based on lack of corpus.
Okoro was promptly released from custody, and his vehicle was returned to him. At trial, Okoro contended that his vehicle was damaged and items were missing from his car.
7. Preclusion of Second Expert Witness
During the trial, Okoro sought permission to present the testimony of an expert economist, who had not previously been designated, because his original expert had purportedly become unavailable. The court did not permit the new expert to testify, because Okoro had failed to comply with the court’s order to provide adequate information as to the substance of the new expert’s testimony and a declaration explaining the original expert’s unavailability. The court noted as well that the proposed testimony was “speculative in the extreme.”
C. Verdict and Judgment
The jury returned a verdict in favor of Officer Ausmus and Sergeant Olivas on all counts.
With respect to Okoro’s cause of action for battery by a peace officer, the jury found that Ausmus did not use unreasonable force in arresting Okoro, and Olivas did not even touch Okoro.
As to Okoro’s claim for false arrest without a warrant, and respondents’ affirmative defense based on probable cause, the jury found that both Ausmus and Olivas proved that “the information [the officers] obtained from the 3 children and Della Wilson would, if proved, establish that defendant had reasonable cause to believe that Sylvester Okoro had committed a felony, whether or not a felony had actually been committed.”
On Okoro’s assertion of conversion (or, more precisely, conversion damages for violation of his civil rights in impounding his automobile), the jury found that Okoro consented to the officers’ possession of his car.
As to Okoro’s civil rights claim, the jury found that the search of Okoro’s home and automobile without a warrant was not a substantial factor in causing harm to Okoro. On respondents’ affirmative defense to the civil rights claim, the jury further found that the search was conducted as part of a lawful arrest of Okoro, was only within the area in which Okoro might have gained possession of a weapon or destroyed or hidden evidence, and was reasonable under the circumstances. Also as to the civil rights claim, the jury found that the warrantless arrest and search of Okoro’s home and vehicle did not violate Okoro’s right to privacy, and officers Ausmus and Olivas did not use excessive force in arresting Okoro.
After Okoro’s motion for a new trial was denied and judgment was entered, this appeal followed.
II. DISCUSSION
Okoro challenges the judgment on a number of grounds. As to the causes of action that went to the jury, Okoro contends: the court erroneously submitted the determination of probable cause to the jury; the court erred by instructing the jury on stalking; there was insufficient evidence for the jury to find the facts that would establish probable cause; the search of his apartment and car were unlawful; and substantial evidence did not support the jury’s findings as to his causes of action for battery, excessive force, and conversion. In addition, Okoro argues that the court erred in dismissing in limine the fourth, fifth, sixth, and seventh causes of action (trespass to chattel, intentional infliction of emotional distress, negligent infliction of emotional distress, and negligence) on grounds of immunity (Govt. Code, § 820.2, 820.4) and dismissing the eighth cause of action (defamation) under Civil Code section 47. Lastly, Okoro contends the court erred in precluding the testimony of two expert witnesses. We address each of Okoro’s contentions.
A. False Arrest Cause of Action: Probable Cause (CACI No. 1402)
Under the legal theory of false arrest or imprisonment, a police officer may be held liable for harm caused by a warrantless arrest. (Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 673.) An affirmative defense to such a claim arises, however, if the officer was authorized to make the arrest without a warrant, as where the officer had probable cause to believe that the suspect had committed a felony or had committed a misdemeanor in the officer’s presence. (Pen. Code, § 836.) Because Okoro’s purported crime did not occur in respondents’ presence, the issue in this case was whether Officer Ausmus and Sergeant Olivas had probable cause to believe that Okoro had committed the felony crime of stalking (Pen. Code, § 646.9, subd. (a)), whether or not the felony was actually committed (Pen. Code, § 836, subd. (a)(3)).[5]
1. Propriety of Instructing the Jury on Probable Cause (CACI No. 1402)
Where the facts giving rise to an arrest are not in conflict, the issue of probable cause to arrest is a question of law to be determined by the court rather than the jury. (Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1018 (Levin).) On the other hand, when facts giving rise to the arrest are controverted, the court instructs the jury as to the facts that, if established, would constitute probable cause. (Id. at pp. 1018-1019.) In other words, the court determines what facts would constitute probable cause as a legal matter, and the jury decides whether those facts exist. (See ibid.; Miller v. Lee (1944) 66 Cal.App.2d 778, 786.)
CACI No. 1402 is a standard pattern instruction for this purpose. As applicable here, it directs the court to “insert [into the instruction] facts that, if proved, would constitute reasonable cause to believe that the plaintiff had committed a felony, whether or not a felony had actually been committed.” (CACI No. 1402.) The court acknowledged this directive, heard the parties’ arguments about the wording to be inserted, and decided on the language ultimately included in the instruction to the jury.
The court instructed the jury as follows: “Lisa Ausmus and Enoch Olivas claim the arrest was not wrongful because she had the authority to arrest Sylvester Okoro without a warrant. If Lisa Ausmus and Enoch Olivas prove that she and he had reasonable cause to believe that Sylvester Okoro approached the alleged victims on June 27 and June 28 on their way to school at approximately the same time and place; and one or both days plaintiff ask[ed] one or both of the alleged victims where they lived and asked if he could be their friend, or in the alternative that on June 27 and June 28 plaintiff approached the alleged victims in the same neighborhood at approximately the same time and on one day asked one of the victims where she lived and on the second day asked whether he could be friends with the alleged victims[,] then Lisa [Ausmus] and Enoch Olivas had the authority to arrest Sylvester Okoro without a warrant.”
Okoro contends the court erred in giving this instruction because it “submitted to the jury to determine probable cause to arrest where the facts are not in conflict.” His argument is meritless.
First, the court’s instruction did not submit the issue of probable cause to the jury. By instructing the jury with CACI No. 1402, the court explained to the jury that the officers had the authority to arrest Okoro if the jury determined that certain facts (which the court had decided constituted probable cause) were true. As such, the instruction merely pertained to the jury’s determination of the existence of facts, not the legal question of probable cause.[6]
Second, Okoro waived any objection to the use of CACI No. 1402 on the ground that probable cause is not a question for the jury. In discussing the proposed jury instructions, the court stated: “. . . And then [CACI No.] 1402 talks about probable cause.” Okoro’s attorney stated: “Okay. I have no problem.” (Italics added.) After briefly discussing other instructions, the discussion turned to the wording of the facts that the court was going to insert into the instruction. Okoro’s objection in the trial court was based on the contents of the instruction, rather than any assertion that CACI No. 1402 should not be used or that the jury should not decide the issue.[7]
Third, Okoro’s argument — that the instruction should not have been given because the facts purportedly giving rise to probable cause were not in conflict — is ultimately pointless. The only way the facts in the court’s instruction could not have been in conflict would be if Okoro did not dispute them. But if he did not dispute them, then he was not prejudiced by having the jury find that those facts were true. If, on the other hand, he did dispute the facts, there was a conflict concerning the evidence and there was no error in giving the instruction.
2. Substance of the Probable Cause Instruction (CACI No. 1402)
Okoro complains that the facts included in the instruction did not “indicate whether OKORO committed any felony crime” and witness Wilson and the children did not allege what felony he had committed.
Okoro’s argument is unclear. To the extent he suggests the instruction should have stated whether the facts would constitute a felony, he provides no authority for that proposition. The purpose of CACI No. 1402 is merely to have the jury determine whether certain purported facts were true and, if so, to conclude that the arrest was lawful; the court determines whether, as a legal matter, those facts give rise to probable cause that a felony was committed and thus render the arrest lawful.
Alternatively, Okoro may be arguing that the use of CACI No. 1402 was improper because the facts inserted into the instruction could not, as a matter of law, give rise to a reasonable belief that felony stalking had been committed. On this point he is wrong as well. Stalking requires proof that a person willfully, maliciously, and repeatedly followed or harassed another person, made a credible threat, and had the specific intent to place the other person in reasonable fear for his or her safety or the safety of his or her immediate family. (Pen. Code, § 646.9; CALJIC 9.16.1.) Okoro’s acts of approaching the child victims on two consecutive days at the same time and location in a car with stuffed animals, and on one or both of those occasions asking the child’s age, where she lived, and whether she would be his friend, could reasonably lead a police officer to believe that Okoro had willfully, maliciously and repeatedly followed or harassed his victim and made a credible implicit threat that he would attempt to abduct her, with the specific intent to put her in reasonable fear for herself or her sibling. (Pen. Code, § 646.9, subd. (a).)
Okoro also argues that the substance of CACI No. 1402 was improper because the phrase “authority to arrest” at the end of the instruction should have been “reasonable or probable cause to arrest.” The language he attacks, however, is part of the CACI No. 1402 pattern instruction. He does not demonstrate that he objected to the instruction in the trial court on this ground. Furthermore, the use of the phrase “authority to arrest” was harmless under the circumstances of this case: if the jury found the facts referenced in the jury instruction, then the officers had probable cause to believe felony stalking had been committed, and the officers did indeed have legal authority to arrest Okoro. (Pen. Code, § 836.) Okoro fails to establish prejudicial error.
B. Sufficiency of the Evidence of Probable Cause re Stalking
Okoro argues that Officer Ausmus and Sergeant Olivas could not have had probable cause to believe that he committed the felony offense of stalking because (1) the facts known to the officers did not constitute stalking and (2) when the officers arrested him, they were not thinking of the offense of stalking but the offense of child annoying or something else. On this basis, Okoro argues, the court should not have instructed the jury on the crime of stalking[8] and respondents cannot avail themselves of a defense based on probable cause.
As alluded to ante, substantial evidence supports the conclusion that the facts known to Officer Ausmus and Sergeant Olivas would lead a reasonable person to believe that Okoro had committed the felony crime of stalking. Officer Ausmus testified that while Okoro apparently did not make verbal threats to the children, his statements to them constituted a threat under the circumstances. Explaining what led her to this belief, she testified: “Because he had contacted them two days in a row, again, at the same place at the same time with stuffed animals. That felt like a credible threat as the children were perceiving it with the two contacts back to back.” Implicit in his statements and conduct, in other words, was the threat that he might try to abduct the children. It might also be inferred that he was intending to scare them. Indeed, the children appeared frightened. Furthermore, the officers had no reason to doubt the accounts provided by eyewitness Wilson and the three children. Their statements were consistent, Officer Ausmus detected no reason to disbelieve their reports, they each identified Okoro in the photographic lineup, Okoro matched the description of the perpetrator, and his vehicle matched the description of the perpetrator’s vehicle.
Okoro nonetheless argues that the officers did not really suspect him of stalking at the time of the arrest, but instead suspected him of child annoying or something else. Okoro’s argument has no merit, because the question is not the officers’ state of mind, but whether the facts known to them at the time of the arrest would lead a reasonable person to believe that Okoro had committed the crime. (See, e.g., Beck v. Ohio (1964) 379 U.S. 89, 91; People v. Hutchins (1979) 100 Cal.App.3d 406.) As explained ante, that standard was met.
Furthermore, Okoro’s arguments as to what the officers believed are unavailing. In part, he refers us to his attorney’s attempt to impeach Officer Ausmus with her deposition testimony concerning the crime she had in mind at the time of the arrest. As discussed ante, however, Officer Ausmus explained the matter at trial, and there was sufficient evidence from which the jury, as the arbiter of the credibility of the witnesses, could believe Officer Ausmus.
Okoro also notes that the arrest report referred to the offense of child annoying and insists Officer Ausmus admitted at trial that “she cited OKORO with the crime of child annoying before they arrested OKORO.” For this latter proposition he refers us to page 311 of the reporter’s transcript and pages 542 and 544 of the clerk’s transcript, which refer to the notation on the arrest report that the offense was child annoying. The arrest report, however, was prepared after the arrest and after Officer Johnson decided – over the continuing objection of Officer Ausmus and Sergeant Olivas – that the offense should be listed as child annoying rather than stalking. Okoro’s contention that Okoro was “cited” with the crime of child annoying before the arrest is utterly false.[9]
In his opening brief, Okoro states: “OKORO urges this Appeals Court to adopt standing case law rulings that states that ‘the state of mind of arresting officer can only be established by criminal charge cited in the criminal investigation report at the time of arresting the suspect.’” He “urges this Appeals Court to adopt the case law rulings under [Beier v. City of Lewiston (9th Cir. 2004) 354 F.3d 1058, 1066].” After Officer Ausmus and Sergeant Olivas challenged this assertion in their respondents’ brief, however, Okoro denied in his reply brief that he had requested us to adopt the ruling that “the state of mind of an arresting officer can only be established by the criminal charge cited in the criminal investigation report at the time of arresting the suspect” – even though that is precisely what he requested in his opening brief – and claimed that he instead urges us to “establish a new ruling that curbs the wild allegation of felony crime by police officers nearing trial without including in the criminal report, in the first place, to show[] probable cause to arrest.”
Okoro’s argument is meritless. Beier did not hold that the state of mind of an arresting officer can only be established by the criminal charge cited in the criminal investigation report at the time of arresting the suspect. Nor is Beier helpful to his case for any other reason he asserts.
Okoro next argues that “Deputy District Attorney Lee’s decision not to prosecute OKORO in essence demonstrates the lack of probable cause to arrest in this case.” Not so. As the court explained to Okoro at the in limine hearing, the standard used by the district attorney to decide whether to prosecute is not the standard for probable cause to make an arrest.
Lastly, Okoro argues that the lack of probable cause to arrest is proven by the fact that the superior court sealed Okoro’s arrest record, pursuant to Penal Code section 851.8. The sealing of an arrest record, however, has nothing to do with whether police had probable cause to make the arrest initially.
An arrest record may be sealed upon a finding of factual innocence, which requires a finding that “no reasonable cause exists to believe that the arrestee committed the offense for which the arrest was made.” (Pen. Code, § 851.8, subd. (b).) “[R]easonable cause . . . to believe that the arrestee committed the offense,” (ibid.) after the conclusion of the case, is not the same thing as probable cause to make the arrest, based on the information known at the time of the arrest. Okoro’s reliance on People v. Adair (2003) 29 Cal.4th 895 is therefore misplaced. (Id. at pp. 902-909 [pertaining to reasonable cause in the context of sealing an arrest record after an acquittal].)
Furthermore, “[a]ny finding that an arrestee is factually innocent pursuant to subdivision (a), (b), (c), (d) or (e) [of Penal Code section 851.8] shall not be admissible as evidence in any action.” (Pen. Code, § 851.8, subd. (i)(1).) Indeed, here the court ruled that the finding of Okoro’s factual innocence was inadmissible, and the court did not err in this determination. (Ibid.) Because no evidence of factual innocence was properly before the court or jury, it cannot support any claim that the finding of probable cause was erroneous.
C. Civil Rights Claim: Search of Okoro’s Car and Residence After His Arrest
Ostensibly in connection with his claim under 42 U.S.C. section 1983, Okoro argues that the search of his car and residence was unlawful. Substantial evidence supports the jury’s findings to the contrary.
The jury found that the search of Okoro’s residence and automobile was conducted as part of a lawful arrest of Okoro, within the area in which Okoro might have gained possession of a weapon or destroyed or hidden evidence, and reasonable under the circumstances. As discussed above, substantial evidence supported the jury’s finding that the arrest was lawful based on their finding of facts that would establish probable cause to arrest.
The jury also found that Okoro consented to the police taking possession of his vehicle. By this finding, the jury must have accepted the validity of the consent to search form, which pertained not only to Okoro’s vehicle but also to his residence. Substantial evidence supported the jury’s conclusion. Officer Ausmus testified that after Okoro had been placed under arrest outside his home, she filled out the consent to search form for Okoro’s home and car. The form stated that Okoro voluntarily consented to the search. Okoro signed it, and he does not dispute that he signed it. Although Okoro claimed at trial that he signed the form under duress, the jury did not believe him. Credibility is a matter for the trier of fact. (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968 (Lenk).)
Okoro argues that the search was invalid because the proper standard to determine consent was not used. (United States v. Reid (9th Cir. 2000) 226 F.3d 1020, 1026-1027.) His argument lacks merit. The instruction on consent to search expressly quoted the five Reid factors – and even cited to Reid. Okoro’s consent to the search of his home and vehicle precluded Okoro’s claim that the search of his home and vehicle were unlawful.
In any event, the jury found that the search of Okoro’s home and automobile without a warrant was not a substantial factor in causing harm to Okoro. With this finding, Okoro could not prevail on his claim as a matter of law.
D. Finding of No Battery, Excessive Force, or Conversion
Okoro contends he proved all of the elements of battery by a peace officer, excessive force (under his civil rights claim), and conversion. Substantial evidence, however, supports the jury’s verdict.
1. Battery
Battery by a peace officer requires proof that, among other things, Officer Ausmus and Sergeant Olivas used unreasonable force to arrest Okoro. The jury found that neither Ausmus nor Olivas used unreasonable force. Substantial evidence supported this finding: Ausmus testified that Okoro answered the door, he stepped outside, and he was arrested without force; and Okoro never complained of force when questioned by Officer Johnson. While Okoro argues that the jury should have accepted the version he gave at trial, we must defer to the trier of fact for credibility determinations and refrain from reweighing the evidence. (Lenk, supra, 89 Cal.App.4th at p. 968; Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631 (Howard).)
2. Excessive Force
Okoro alleged excessive force as one of the predicates for his civil rights claim under 42 U.S.C. section 1983. The jury found that Officer Ausmus and Sergeant Olivas did not use excessive force. Substantial evidence supported the finding, for the same reasons that substantial evidence supported the finding that the officers did not employ unreasonable force.
3. Conversion
The jury found that Okoro consented to the officers’ possession of his car, thus precluding Okoro’s quest for conversion damages as a matter of law. Okoro argues that the jury was wrong in its interpretation of the evidence. Again, the role of this court is not to reweigh the evidence before the jury, but to determine if substantial evidence supported the jury’s finding. (Howard, supra, 72 Cal.App.4th at p. 631.)
Substantial evidence supports the jury’s finding. The consent to search form was signed by Okoro and permitted the search of his vehicle, and the jury reasonably could have disbelieved Okoro’s claim of duress. The jury could also have reasonably rejected Okoro’s claim that there was any damage to his vehicle for which the police were responsible, or that he lost any items from his car. They were able to see the photographs of Okoro’s vehicle and consider the inventory made of its contents, and to evaluate the credibility of the witnesses. We defer to the credibility determinations of the trier of fact. (Lenk, supra, 89 Cal.App.4th at p. 968.)
E. Trial Court’s Dismissal of Other Claims
Okoro contends the court erred in dismissing his other claims in limine. We disagree.
1. Emotional Distress and Negligence (Immunity Under Government. Code § 820.4)
The court dismissed the fifth, sixth and seventh causes of action for intentional and negligent infliction of emotional distress and negligence on the grounds of statutory immunity under Government Code section 820.4.
Government Code section 820.4 states that “[a] public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law.” The officers were acting on the basis of the statements of the children and eyewitness Wilson, which provided probable cause for Okoro’s arrest and search of his property.
Okoro argues that the officers exercised ministerial authority, rather than discretionary authority, when they arrested him and therefore are not entitled to qualified immunity under Government Code section 820.2. However, these claims were not dismissed under Government Code section 820.2, but under Government Code section 820.4. Okoro fails to establish reversible error.
2. Trespass to Chattel (Immunity Under Govt. Code, § 820.2)
Okoro contends the trespass to chattel cause of action should not have been dismissed because respondents exercised ministerial authority when they arrested him. He is incorrect. The decision to arrest Okoro (and to impound his vehicle) was a discretionary act. (McCarthy v. Frost (1973) 33 Cal.App.3d 872 [decision whether or not to arrest is an exercise of discretion for which a peace officer may not be held liable in tort]; see Posey v. State (1986) 180 Cal.App.3d 836, 849-850 [officer’s decision whether or not to move vehicle is discretionary].)
3. Defamation (Privileged Under Civ. Code, § 47)
Okoro argues that Officer Ausmus and Sergeant Olivas have no immunity with respect to his defamation claim, because they are not federal or state officials (for absolute immunity under Civil Code section 47, subd. (a)) and they acted with malice by knowingly and deliberately arresting Okoro and searching his residence when the reasons for the arrest and search were untrue (precluding qualified immunity under Civil Code section 47, subd. (c)). Okoro adds that statutory qualified immunity applies only under the exercise of discretionary authority, not the exercise of ministerial authority.
Civil Code section 47, subdivision (c), provides that a publication is privileged if it is made “[i]n a communication, without malice, to a person interested therein (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information.”
Okoro does not identify a defamatory publication by respondents, but refers to his criminal record that resulted from his arrest. He argues that the privilege does not apply because the officers communicated his arrest with malice, in that they “knowingly and deliberately arrested [Okoro] and searched his residence and car and recorded the incident under public record when they know that the reasons for [his] arrest are untrue and will hurt [Okoro].” However, there is no evidence that the officers knew that the reasons for his arrest were untrue, given the information provided to them by eyewitness Wilson and the child victims, as well as their investigation of the circumstances. Okoro fails to demonstrate reversible error.
F. Exclusion of Okoro’s Expert Witnesses
The trial court precluded the testimony of two expert witnesses, Dr. Fikre Tolossa and Professor Rogerts Lee. Both witnesses were to testify as to damages Okoro purportedly incurred as a result of the officers’ actions. Because Okoro has failed to establish error as to the finding that respondents were not liable on Okoro’s claims, the issue of damages is moot. Therefore, any error in regard to the exclusion of expert witnesses as to damages could not constitute grounds for reversal, and we need not and do not address the preclusion of the experts.
Okoro has failed to establish reversible error on any ground.[10]
III. DISPOSITION
The judgment is affirmed.






NEEDHAM, J.


We concur.



JONES, P. J.



SIMONS, J.

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