Filed 9/28/17 P. v. Bishop CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed as modified.

Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Senior Assistant Attorney General, and Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.

One day, defendant Kenoth Raymond Bishop started acting aggressively toward people at his apartment complex; he tried to punch a neighbor, and he shoved the apartment manager. The police were called. One officer spotted defendant and ordered him to stop. He replied, “Come and get me. I will bash your fucking head in.” Then he walked into his apartment.

As a result, a jury found defendant guilty of:

Count 1: Resisting an executive officer by means of threat or violence. (Pen. Code, § 69.)

Counts 2 and 3: Battery. (Pen. Code, § 242.)

Count 4: Resisting a peace officer. (Pen. Code, § 148, subd. (a)(1).)

The trial court sentenced defendant to three years in jail on count 1; it also sentenced him to 180 days on counts 2 and 3 and one year on count 4, all to be served concurrently. It then suspended this sentence and placed defendant on formal probation for three years.

Defendant now contends:

1. The trial court erred by excluding evidence that the police supposedly used excessive force in arresting defendant.

2. The trial court erred by preventing defense counsel from asking a police officer whether he believed that a guilty verdict in this case would preclude defendant from suing him.

3. The prosecutor committed prosecutorial error by inviting the jury to consider defendant’s prior convictions — for evading, resisting, and battering police officers — as propensity evidence.

4. The trial court violated Penal Code section 654 by imposing separate and unstayed sentences for both resisting an executive officer and resisting a peace officer.

The trial court did not err by excluding evidence of the circumstances of defendant’s arrest. Defendant’s proffered evidence fell short of showing excessive force; moreover, if admitted, it would have required a “mini-trial” on the issue.

We do agree that the trial court erred by ruling that defense counsel could not ask a police officer about the effect that a criminal conviction would have on a future civil action. Defendant had threatened to sue the officer, and a criminal conviction in this case could, in fact, preclude the threatened civil action. This was relevant to show that the officer had some motive to lie. The error, however, was harmless, because the very fact that defendant had threatened to sue the officer, all by itself, gave the officer the very same motive.

We also agree that the prosecutor committed prosecutorial error in closing argument, by defying the trial court’s order in limine that defendant’s prior convictions could be used solely to impeach. Again, however, the error was harmless, because the sole defense presented — sheer denial — had no credibility.

Finally, we agree that the trial court erred by failing to stay the sentence for resisting a peace officer. We will modify the sentence accordingly.

I

FACTUAL BACKGROUND

A. Battery on Wave.

Defendant lived in a senior apartment complex in Indio. The complex was surrounded by a fence with locking gates.

On September 29, 2015, Danilo Hernandez Wave, another resident of the complex, was sitting out on his porch. Wave and defendant were friends.

Defendant came up to Wave, claimed to be “security,” and told him, “Get inside[,] Mexican.” Wave said nothing, because he “knew that [defendant] wasn’t right in the head.” Defendant tried to punch Wave in the face but succeeded only in “swip[ing]” his cheek. Defendant then tried to kick Wave, but again made only “slight” contact. Defendant left.

B. Battery on Morales.

Guillermo Morales was the assistant manager of defendant’s apartment complex.

Also on September 29, 2015, as Morales was walking through the complex with two prospective tenants, defendant came up to them. Defendant seemed “aggressive” and “threatening.” Recently, three or four residents had complained to Morales that defendant was claiming to be “the security guard” and was telling them not to go in or out of the property. Defendant wanted to talk to Morales about these complaints.

Morales told him to come to his office so they could talk privately. Defendant responded that he was “going to get” Morales. He came up to Morales and pushed him. Morales retreated into his office, locked the doors, and called 911. A security video showing this encounter was played for the jury (but has not been transmitted to us).

Around 11:00 a.m., Corporal Jeff Bottoms and Officer Kelly Hawkins responded. After interviewing Morales, they went to defendant’s apartment and knocked on the door. Defendant opened the door, yelled profanity at them, and then slammed it shut.

After speaking to Wave, the officers decided they had enough to file a case, so they left.

C. Resisting Corporal Bottoms.

Around 1:00 p.m., Morales called the police again; he reported that he was locked in the office and defendant was trying to get in.

Corporal Bottoms responded, though he also told the dispatcher to send more officers. He found defendant walking down the sidewalk outside the complex. He said, “Stop. I want to talk to you.” Defendant, without responding, unlocked a gate.

Corporal Bottoms ordered defendant again to stop. Defendant replied, “Fuck you. Come and get me.” Corporal Bottoms told him, “[H]old the gate and I will come to [you].” Defendant said, “Come and get me. I will bash your fucking head in.” He then let the gate close behind him as he walked into his apartment.[1]

As Corporal Bottoms was trying to get in through the gate, defendant opened his door and “peeked” out. Because defendant kept his hands behind the doorjamb, Corporal Bottoms was concerned that he might have a weapon. He put his hand on his gun, but defendant quickly shut the door. Corporal Bottoms notified dispatch that defendant was “arrestable for 69 PC.”

Officer Robbie Moore and Officer Abraham Plata arrived. Corporal Bottoms had them try to contact defendant. They knocked on his door. They then saw him come over to a sliding glass door. He was holding two hammers in one hand and a sledgehammer in the other hand. He was “raising” and “brandishing” the hammers. He said, “Come on in, the doors unlocked,” and added, “I got something for you.” They told him to put down the hammers and come outside.

By now, “the whole shift” — approximately six officers — had arrived at the scene. Corporal Bottoms decided to pull back to prevent the situation from escalating further. The officers stayed out of defendant’s sight, waiting to see if he came out, for about 45 minutes. Then, because schools were letting out, they decided to leave entirely in the interest of safety.

D. Defendant’s Account.

Defendant testified in his own defense. He admitted six prior convictions — one for resisting an executive officer, one for evading an officer, two for battery on an officer, and two for forgery.

Defendant testified that he was medically retired after a workplace accident in which a beam fell on him.

On September 27, 2015 — two days before the charged crimes — defendant encountered a Hispanic man shooting up heroin outside his apartment. Defendant told the man to leave or he would call the police. In response, the man pulled out a box cutter. Defendant picked up a stick that was on his patio and told him again to leave. This time, the man complied. Defendant called the police; Officer Moore responded and took his report.[2]

On September 29, 2015, defendant saw the same Hispanic man talking to Wave. After the man left, he asked Wave what they had been talking about. Wave did not answer; instead, he went into his apartment, came back out holding a golf club, and shook it at defendant. They both got into a “fighting stance.” Wave was holding the golf club “like a bat.” Defendant tried to punch Wave but missed; Wave swung the golf club at defendant but missed. They both then ran away.

Defendant explained that he went to talk to Morales because he was upset about a maintenance man who had walked into his apartment when he was in the shower. He denied pushing or even touching Morales.

About an hour later, Officer Hawkins knocked on his door. When defendant opened it, Officer Hawkins ordered him to turn his pockets inside out, raise his hands, and step outside, adding that he was going to arrest him. Defendant did not think he had done anything to be arrested for, so he said “[fuck] you” and closed the door.

Later, as defendant was throwing some trash into a dumpster, Corporal Bottoms arrived. He said, “Excuse me. Could you hold that gate for me?” He did not order defendant to stop. Defendant went in through the gate and let it close behind him. He informed Corporal Bottoms that, if he wanted to go through the gate, he needed to have a key or to go to the office.

Corporal Bottoms put his hand on his gun, unclipped the strap over it, and told defendant he “had better open the gate.” Defendant refused and said he was going to sue him. Corporal Bottoms said, “[You] better open that gate or [I’m] going to kick [your] ass.” Defendant replied, “Fuck you. Come and get me.” Corporal Bottoms drew his gun, so defendant ran inside.

Some 10 or 15 minutes later, other officers arrived. They told defendant to turn his pockets inside out and come outside, or else they would shoot him. There were already hammers by the window; defendant merely took them down. He denied swinging them. He also denied making any threats, other than to sue the officers.

II

THE EXCLUSION OF EVIDENCE OF THE FORCE USED

IN DEFENDANT’S ARREST THE NEXT DAY

Defendant contends that the trial court erred by excluding evidence that, on the day after the charged crimes, the police used supposedly excessive force to arrest him.

A. Additional Factual Background.

The following facts are taken from the police report that defense counsel submitted as part of his offer of proof, as supplemented by the parties’ oral offers of proof.

The charged crimes were committed on September 29, 2015. Defendant was arrested the next day, on September 30, 2015. Two officers spotted him out walking and confronted him; Officer Hawkins then arrived to back them up.

The officers repeatedly ordered defendant to take his hand out of his pocket and to get down on the ground. He did not comply; he was yelling something unintelligible. When defendant — still agitated and still with his hand in his pocket — started walking toward Officer Hawkins, Officer Hawkins was afraid for his safety and that of the other officers. He therefore fired one round from a non-lethal (or “less-lethal”) weapon. The weapon was a shotgun-like device called an “extended range munitions launcher.” It fired a projectile that was cylindrical and 40 millimeters (about 1.5 inches) in diameter. It hit defendant in the stomach. He went down to the ground and was arrested. Although the projectile did not break his skin, he was taken to a hospital.

All of the police reports regarding the events of both September 29 and September 30 were written after this arrest.

B. Additional Procedural Background.

The prosecution moved in limine to exclude any evidence of the circumstances of defendant’s arrest, as irrelevant and as more prejudicial than probative under Evidence Code section 352. In response, defense counsel argued that the evidence would show “excessive force.” He added: “It clearly provides motive for law enforcement to embellish what occurred between them and Mr. Bishop because they did act excessively.” Both sides made oral offers of proof as to what the evidence of the arrest would show.

The trial court excluded the evidence under Evidence Code section 352.

Defense counsel filed a written motion for reconsideration, this time submitting Officer Hawkins’s police report as an additional offer of proof. The trial court declined to change its ruling.

After Officer Hawkins testified that he was one of the officers at defendant’s apartment on September 29, defense counsel filed a second written motion for reconsideration. The trial court declined to change its ruling.

C. Discussion.

Evidence Code section 352 provides that “[t]he court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”

“‘Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion, or consumption of time. [Citation.]’ [Citation.]” (People v. Clark (2016) 63 Cal.4th 522, 586.) “An exercise of discretion under Evidence Code section 352 will be affirmed unless it was arbitrary, capricious, or patently absurd and the ruling resulted in a miscarriage of justice. [Citation.]” (People v. Winbush (2017) 2 Cal.5th 402, 469.)

Defendant argues, “Appellant proffered that during th[e] later arrest, the officers used unlawful and excessive force . . . . [Citation.] He sought to introduce that evidence to show a bias, interest or other motive not to tell the truth on the part of [Officer] Bottoms. Police misconduct in the arrest would provide a motive for the officers to lie or shade their testimony about the events preceding the arrest, in order to avoid or minimize civil liability.”

Actually, defendant’s offer of proof failed to show excessive force or any other police misconduct. Defendant’s brief repeatedly asserts that there was excessive force, but it fails to support this assertion with any analysis or authority.

“A claim that law-enforcement officers used excessive force to effect a seizure is governed by the Fourth Amendment’s ‘reasonableness’ standard. [Citations.]” (Plumhoff v. Rickard (2014) ___ U.S. ___, ___ [134 S.Ct. 2012, 2020].)

“Our Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it. [Citation.] Because ‘[t]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application,’ [citation], however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. [Citations.]” (Graham v. Connor (1989) 490 U.S. 386, 396 (Graham).)

“The reasonableness of the use of force is evaluated under an ‘objective’ inquiry that pays ‘careful attention to the facts and circumstances of each particular case.’ [Citation.] And ‘[t]he “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.’ [Citation.] ‘Excessive force claims . . . are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.’ [Citation.]” (County of Los Angeles v. Mendez (2017) ___ U.S. ___, ___ [137 S.Ct. 1539, 1546–1547.)

In the Fourth Amendment context, deadly force is force that creates a substantial risk of death or serious bodily injury. (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 704–707 and cases cited.) “A police officer’s use of deadly force is reasonable if ‘“‘the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.’ [Citations.]” [Citation.]’ [Citation.]” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 528.) We may assume, without deciding, that on these facts, the use of deadly force would have been unjustified (or, at least, that a jury could have found it unjustified).

However, it is undisputed that the weapon was “less lethal.” The whole point of using such a weapon is to avoid using deadly force. Describing it as less lethal rather than non-lethal does not change this. With enough bad luck, almost any “non-lethal” weapon is capable of causing death. (See, e.g., Deorle v. Rutherford (9th Cir. 2001) 272 F.3d 1272, 1280 [beanbag gun]; Robinette v. Barnes (6th Cir. 1988) 854 F.2d 909 [police dog].)[3] But a bare possibility of causing death or serious bodily injury fails short of a substantial risk.

Here, defendant did not make any offer of proof that the weapon had a substantial risk of causing death. He makes a fuss about the sheer size of the projectile; however, that actually made it less penetrating — more like a baton than a bullet.

Applying the Graham factors here: First, the crimes for which the officers were trying to arrest defendant were fairly serious. They included resisting an executive officer, which is a wobbler — i.e., a felony unless and until a court decides to reduce it to a misdemeanor. This crime requires either violence or a threat of violence. Moreover, it inherently suggests a likelihood that the arrestee may resist the arrest. Defendant’s current crimes also included two batteries, which, although misdemeanors, required actual violence (or at least an offensive touching).

Second, defendant did pose an immediate threat to the safety of the officers. Even leaving aside what he had done the day before, he was agitated and noncompliant. He had his hand in his pocket, and he kept it there, in defiance of the officers’ orders, suggesting that he had some kind of weapon. He then started advancing toward the officers. Third, defendant was actively resisting arrest.

Conversely, there was a complete absence of factors that might tend to show that the use of a non-lethal weapon was excessive. In Mercado v. City of Orlando (11th Cir. 2005) 407 F.3d 1152, the appellate court held that the use by the police of a less-lethal munitions launcher, much like the one here, did constitute excessive force. (Id. at pp. 1156–1158.) There, however, the person who was shot was threatening to commit suicide; although he was holding a knife, “he posed no threat to the police” and he “was not actively resisting arrest . . . .” (Id. at p. 1157.) He was shot in the head at close range — just six feet — causing a fractured skull. The officer who fired the launcher claimed that he was aiming for the shoulder (id. at p. 1155), but all of the other evidence indicated that he deliberately aimed at the head. (Id. at p. 1158.) If so, this was contrary to departmental policy. (Id. at p. 1155.) The officers could have called for a crisis negotiation team but did not, which was also contrary to departmental policy. (Ibid.) This case is almost as distinguishable from Mercado as can be.

In sum, then, defense counsel’s offer of proof failed to show that Officer Hawkins used excessive force at all. Hence, defendant’s only proposed theory of relevance failed.

Separately and alternatively, even assuming the evidence had some tendency to show excessive force, the trial court could properly exclude it under Evidence Code section 352.

The probative value of the evidence was still not great. As we will discuss in part III, post, there was evidence that defendant threatened to sue Corporal Bottoms, and this in itself gave Corporal Bottoms some reason to lie. By contrast, the proffered evidence related to alleged excessive force by Officer Hawkins. Defendant argues that Corporal Bottoms might have felt pressure to shade the truth to help out his colleague. While this is not impossible, it means that the proffered evidence was weak and merely cumulative evidence of motive to lie.

At the same time, the evidence was likely to consume undue time and to confuse the jury, because it would have required a “mini-trial” on whether Officer Hawkins used excessive force on September 30. Such a mini-trial would not be limited to the evidence in the parties’ offers of proof. For example, it could include expert testimony on the capabilities and use of the weapon. It could include expert testimony on excessive force in general. (People v. Sibrian (2016) 3 Cal.App.5th 127, 132–138.) It could include evidence of the Indio Police Department’s use-of-force policies. “Evidence Code section 352 ‘empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues.’ [Citation.]” (People v. Chatman (2006) 38 Cal.4th 344, 372.)

Finally, the evidence was also likely to appeal to the jurors’ passions and prejudices. Defendant was an older black man. Significantly, the trial took place in January 2016; in closing argument, counsel for both sides referred to Ferguson and similar controversial incidents. If the evidence had been admitted, it would have appealed to the jurors’ sympathy for defendant or prejudice against the police.

Defendant argues that the trial court abused its discretion because it did not acknowledge that the evidence was relevant to witness credibility. However, it was not required to assess the probative value of the evidence expressly on the record. “‘“[A] court need not expressly weigh prejudice against probative value or even expressly state that it has done so, if the record as a whole shows the court was aware of and performed its balancing function under Evidence Code section 352.”’ [Citation.]” (People v. Edwards (2013) 57 Cal.4th 658, 724.)

In any event, the trial court clearly did understand defense counsel’s theory of relevance. It stated: “[S]o you’re saying that what occurred on the 30th is important because it goes to the officer’s bias[.]” Moreover, it did not rule that the evidence was wholly irrelevant; it simply ruled that it was more prejudicial than probative, thus implicitly acknowledging that it was relevant. On this record, defendant cannot show that the trial court failed to properly consider the relevance and probative value of the evidence.

Last but not least, because the evidence failed to show excessive force, and because the trial court could properly exclude it under Evidence Code section 352 even if it did, there was no federal constitutional violation. “[T]he application of ordinary rules of evidence like Evidence Code section 352 does not implicate the federal Constitution . . . . [Citations.]” (People v. Marks (2003) 31 Cal.4th 197, 227.)

III

THE EXCLUSION OF EVIDENCE THAT

CORPORAL BOTTOMS HAD A MOTIVE TO LIE

The trial court excluded evidence that Corporal Bottoms believed that defendant’s conviction in this criminal action would bar defendant from bringing a civil rights action against him. Defendant contends that this was error, because the evidence suggested that Corporal Bottoms had a motive to lie.

A. Additional Factual and Procedural Background.

On cross-examination, defense counsel asked Corporal Bottoms:

“Q. Now, . . . there is some civil liability that can be faced in the capacity of a law enforcement officer, correct?

“[PROSECUTOR]: Objection. Relevance.

“THE COURT: Sustained.

“Q. [DEFENSE COUNSEL]: If a defendant is seeking some type of civil legal action for a violation of their civil rights, and criminal charges are filed against them in those instances, if they lose the criminal case, they have no civil remedy; is that your understanding?

“[PROSECUTOR]: Objection. Asking for a legal conclusion. Also, referring to facts not in evidence.

“THE COURT: Sustained.

“Q. [DEFENSE COUNSEL]: Okay. You, yourself, have been sued before as a law enforcement officer; is that correct?

“[PROSECUTOR]: Objection. Relevance. No facts in evidence at this time.

“THE COURT: Sustained.”

The trial court heard argument outside the presence of the jury. Defense counsel said he was only trying to establish that Corporal Bottoms knew that, if convicted, defendant would be barred from bringing a civil action. He argued that this was relevant to “bias and motivation to fabricate.” The prosecutor responded that the questioning called for “a legal conclusion.”

The trial court sustained the objection on three grounds: irrelevant, more prejudicial than probative under Evidence Code section 352,[4] and calling for a legal conclusion.

Defense counsel then moved for a mistrial, asserting a denial of the right to present a defense and the right to confrontation. The trial court denied the motion.

B. Discussion.

Corporal Bottoms could reasonably fear that defendant was going to sue him. Even while the confrontation with the officers was still going on, defendant threatened to “sue the bejesus out of” them. And this was no empty threat; defendant had previously sued the Palm Springs Police Department, Santa Barbara County, and Salinas County. If Corporal Bottoms believed that a criminal conviction would bar such a civil action, then he had some motive to lie. (See Evid. Code, § 780, subd. (f) [jury may consider witness’s “bias, interest, or other motive.”].)

The People assert that: “The likelihood that Corporal Bottoms would say yes to defense counsel’s question is practically non-existent.” They scoff: “No reasonable person would believe an officer cannot be sued for excessive force if the defendant is convicted of the underlying crime.” However, under Heck v. Humphrey (1994) 512 U.S. 477, a civil rights action under 42 United State Code section 1983 cannot be used to challenge the constitutionality of an outstanding criminal conviction. More specifically, under Heck, a conviction for resisting an officer bars a subsequent civil action for damages based on excessive force, as long as the validity of the civil action necessarily implies the invalidity of the conviction. (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 896–900.) Hence, Corporal Bottoms did have a personal stake in the outcome of the criminal action.

Moreover, the questioning did not call for a legal conclusion. What mattered was whether Corporal Bottoms believed that a criminal conviction would bar a civil action, even if he was wrong. Hence, it did not require any particular expertise.

This brings us to Evidence Code section 352. For the reasons discussed, the evidence had at least some probative value. We fail to see any way in which it was likely to cause undue prejudice, confuse the issues, or mislead the jury.

At the same time, however, the probative value of the evidence was de minimis. What really mattered was that defendant had made a credible threat to sue Corporal Bottoms. Corporal Bottoms would have known that his testimony could be used against him in any future civil action. This gave him a motive to lie, all by itself, regardless of whether he was aware that a conviction would entirely bar such a civil action.

Defendant points out that, in closing, the prosecutor argued that the prospect of a civil action gave defendant a motive to lie. He stated, paraphrasing defendant: “‘I have sued Santa Barbara. I have sued Palm Springs.’ [¶] I want[] to venture a guess what this is really about, ladies and gentlemen. [Defendant] wants to sue the Indio Police Department. He has a motive to lie. He has a motive not to tell the truth.” Defendant complains that this was a “lop[‑]sided argument” because his evidence of Corporal Bottoms’s motive to lie had been excluded.

But not so. In fact, defendant’s argument actually proves our point for us. Defendant, as a prospective civil plaintiff, and Corporal Bottoms, as a prospective civil defendant, both had the same motive to lie. Defense counsel was free to argue this in his closing. The fact that, if Corporal Bottoms lied in the criminal action successfully enough he would thereby preclude a civil action entirely was just the cherry on top.

We therefore conclude that the trial court erred by excluding this evidence. However, defendant’s threat to sue Corporal Bottoms already showed that Corporal Bottoms had a motive to lie; the evidence would have added very little to this. Accordingly, the error was harmless under any standard.

If only out of an excess of caution, we add that the error did not rise to the level of a federal constitutional violation. “‘“Although completely excluding evidence of an accused’s defense theoretically could rise to [the level of a constitutional violation], excluding defense evidence on a minor or subsidiary point does not impair an accused’s due process right to present a defense.”’ [Citation.]” (People v. Lucas (2014) 60 Cal.4th 153, 279, disapproved on other grounds in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19.) “Additionally, the court’s ‘limitation on cross-examination . . . does not violate the confrontation clause unless a reasonable jury might have received a significantly different impression of the witness’s credibility had the excluded cross-examination been permitted.’ [Citations.]” (People v. Williams (2016) 1 Cal.5th 1166, 1192.)

IV

THE PROSECUTOR’S MISUSE OF DEFENDANT’S PRIOR CONVICTIONS

Defendant contends that the prosecutor committed prosecutorial error by inviting the jury to consider his prior convictions as propensity evidence.

A. Additional Factual and Procedural Background.

1. Motion in limine.

Defense counsel moved in limine to exclude evidence of defendant’s prior convictions.

The prosecutor sought to use defendant’s priors to impeach, specifically including a 1996 convictions for reckless evading (Veh. Code, § 2800.2), a 2006 conviction for resisting an executive officer (Pen. Code, § 69), and 2007 convictions for assault on a peace officer (Pen. Code, former § 241, subd. (b), Stats. 2003, ch. 274, § 1, p. 2442; see now Pen. Code, § 241, subd. (c)) and battery on a peace officer (Pen. Code, § 243, subd. (b)). The prosecutor also sought to use the facts underlying the 2007 convictions as evidence of “motive and modus operandi” under Evidence Code section 1101, subdivision (b).

The trial court ruled that these particular priors would be admissible to impeach defendant if he testified, but it denied “the request for 1101(b) evidence.”

2. Attempted questioning about the priors.

On direct, defense counsel had defendant admit the priors. On cross, regarding the assault and battery convictions, the prosecutor asked:

“Q. . . . n that instance, you had an issue with law enforcement, and you handled that through violence, right . . . ?

3. [i]Jury instruction.

The trial court was not asked to give[5] and did not give any limiting instruction regarding defendant’s prior convictions. (E.g., CALCRIM No. 375.)

4. Closing argument.

Before closing argument, it was agreed that, to avoid speaking objections, if defense counsel wanted to object based on prosecutorial misconduct, he would simply say, “Error.”

In his closing, the prosecutor stated:

“[PROSECUTOR:] [T]his jury instruction absolutely allows you to consider those prior convictions as to his truthfulness, his credibility.

“Battery on an officer. PC 69 from 2006, the forgery conviction. . . . A felony evading, violation of Vehicle Code Section 2800.2 from the 80’s, the 90’s, and the mid 2000’s. What is consistent about Mr. Bishop is that he is always the one getting in trouble. He is the one always trying to make an excuse for what he has done, and he is doing it again.

“The next decade is here, ladies and gentlemen, and it will go right back to him treating cops like he doesn’t have to listen. He does not have to respect them. And that’s okay.

“[DEFENSE COUNSEL]: Object . . . as to error.

“THE COURT: Overruled.”

He also stated:

“[PROSECUTOR:] [W]hat he presents to you after his previous conviction for Penal Code Section 69, after his previous conviction for battery on a cop is what to learn from those other incidents is try to know how to attack the case, wait to see where the holes are, and attack them.

“[DEFENSE COUNSEL]: Objection. Error.

“THE COURT: Overruled.”

Finally, he stated:

“[PROSECUTOR:] You saw the way he moved in that video. Disabled? Not disabled enough that he could [sic] threaten people. Didn’t stop him there. Didn’t stop it when he did it in 2006 for a PC 69.

“[DEFENSE COUNSEL]: Objection. Error.

“THE COURT: Overruled.

“[PROSECUTOR:] Didn’t stop him in 2007 when he battered a cop.

“[DEFENSE COUNSEL]: Objection. Error.

“THE COURT: Overruled.”

At the next opportunity, defense counsel moved for a mistrial again, on multiple grounds, one of which was:

“[DEFENSE COUNSEL:] [The prosecutor] repeatedly came back to PC 69, the battery on an officer, kept on inferring to 1101 conduct when those were not in as 1101.”

The trial court denied the motion.

B. Prosecutorial Error.

“It is misconduct for a prosecutor to violate a court ruling by eliciting or attempting to elicit inadmissible evidence in violation of a court order. [Citation.] It is also misconduct for a prosecutor to make remarks in . . . closing arguments that refer to evidence determined to be inadmissible in a previous ruling of the trial court. Because we consider the effect of the prosecutor’s action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct. [Citation.]” (People v. Crew (2003) 31 Cal.4th 822, 839.) Indeed, “‘the term prosecutorial “misconduct” is somewhat of a misnomer to the extent that it suggests a prosecutor must act with a culpable state of mind. A more apt description of the transgression is prosecutorial error.’ [Citation.]” (People v. Centeno (2014) 60 Cal.4th 659, 666–667.)

“As a general rule, ‘“[a] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.”’ [Citation.]” (People v. Centeno, supra, 60 Cal.4th at p. 674.)

Here, the trial court had excluded evidence of the facts underlying defendant’s priors and had refused to allow the prosecutor to use those priors for any purpose other than impeachment. The prosecutor nevertheless asked two questions about the facts underlying the priors, both of which implied that the priors showed a propensity to commit similar crimes. This was prosecutorial error. However, the trial court sustained defense counsel’s objections to both questions. “A party is generally not prejudiced by a question to which an objection has been sustained. [Citation.]” (People v. Peoples (2016) 62 Cal.4th 718, 795.) Defense counsel did not request an admonition; thus, he forfeited any contention that sustaining the objections was insufficient to prevent any prejudice.

The prosecutor also asked a third question that was close to the line — “[Y]ou were convicted of a violation of Penal Code section 69, the same violation you are charged with in this case, right?” While this did not ask about the facts underlying the prior, it did suggest that the prior conviction was propensity evidence. Defense counsel, however, did not object, and thus he forfeited any error in this question.

The prosecutor then proceeded to argue to the jury that it should use the priors as propensity evidence. The People concede that the prosecutor’s challenged remarks were “improper.” They argue, however, that only the first such remark (“he is doing it again”) was an appeal to propensity. In their view, the second remark (“what to learn from those other incidents is . . . how to attack the case”) and the third remark (disability “[d]idn’t stop him there”) did not invoke propensity; they were improper, but only because they went beyond using the evidence for impeachment.

We agree that all three remarks constituted prosecutorial error because they violated the trial court’s ruling in limine. We therefore need not decide whether one, two, or all three of them appealed to propensity-type reasoning.

Defense counsel objected promptly and as specifically as he was allowed. Nevertheless, for no apparent reason, the trial court started overruling all of his objections. Under these circumstances, a request for an admonition would have been futile. (People v. Sanchez (2016) 63 Cal.4th 411, 476.) Hence, the objections alone were sufficient to preserve the error.

We turn, then to whether the error was prejudicial. “‘“When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated.”’ [Citations.] . . . Misconduct that does not constitute a federal constitutional violation warrants reversal only if it is reasonably probable the trial outcome was affected. [Citations.]” (People v. Shazier (2014) 60 Cal.4th 109, 127.)

Defendant’s argument that the error was prejudicial focuses on the “‘inherently prejudicial’” nature of propensity evidence and the egregious nature of the prosecutor’s conduct. He asserts that this was a “close case,” but he provides no analysis to support that ipse dixit. In sum, he does not even try to show how, in the absence of the error, he could have enjoyed a more favorable outcome.

Actually, this was never a reasonable probability.

Defendant’s sole defense was sheer denial. Morales testified that defendant pushed him; defendant denied this. Wave testified that defendant attacked him; defendant denied this, testifying that Wave was the aggressor. Corporal Bottoms testified that he ordered defendant to stop, and that defendant responded by threatening him; defendant denied both points.

The main problem with this strategy is that it required there to be a conspiracy against defendant. As the prosecutor put it: “[T]he defense wants you to believe . . . not just that the officers are conspiring against him, now somehow two people, Mr. Morales and Mr. Wave, are now also somehow, even though unrelated to Indio Police Department, now a part of a giant conspiracy against [defendant].”

A secondary problem is that the video apparently showed that defendant was lying about whether he pushed Morales. The prosecutor showed the video in closing argument and pointed out the push. Defense counsel did not argue otherwise.

While there was no similar video of the battery against Wave, Wave himself was very credible. He had no apparent motive to lie. He testified that he and defendant were friends; defendant confirmed this. Wave told the police he did not want to press charges. He admitted that it was “difficult” for him to testify against defendant.

Presumably because the evidence of the two batteries was so strong, defense counsel conceded in opening as well as closing argument that defendant was guilty of them: “Yes, Mr. Bishop is guilty of a battery, and I told you that in my opening. I am not going to get up here and argue that he is not guilty of that battery. He is. In his mind on that day did he think he committed a battery? Obviously he didn’t. . . . But legally, yes, he is guilty of a battery. And the same thing with Mr. Morales.” He focused on trying to raise a reasonable doubt with respect to the two resisting counts.

Admittedly, the resisting counts came down to a credibility battle between Corporal Bottoms and defendant. There was no other witness to their interaction by the gate, and there was no relevant physical evidence. Nevertheless, after defendant’s testimony that the batteries did not occur and his counsel’s concession that they did, defendant’s credibility was negligible.

While no other officer was present to observe defendant’s acts of resistance, multiple officers testified to defendant’s generally belligerent attitude. Officer Hawkins testified that, when he and Corporal Bottoms responded to the first 911 call, they tried to contact defendant, but he yelled profanity at them and slammed the door shut. Officer Moore and Officer Plata testified that defendant brandished hammers and threatened them, saying, “I got something for you.” Moreover, defendant admitted that Corporal Bottoms asked him to hold the gate open but he did not do so.

The jury reached a verdict quickly and smoothly. It retired at 10:35 a.m. It sent out two questions: It wanted to view the video of defendant’s confrontation with Morales, and it wanted a readback of Morales’s testimony. Significantly, these items of evidence were relevant solely to the charge of battery on Morales; they were not particularly relevant to the resisting charges. Playing the video took seven minutes; the readback took 30 minutes. The jury took an unhurried 90-minute lunch. It then reached a verdict by 3:35 p.m. — i.e., after three hours, at most, of actual deliberation.

We do not condone the prosecutor’s misconduct. And we acknowledge that applying the doctrine of harmless error under these circumstances not only fails to rectify past prosecutorial error, but also fails to deter future prosecutorial error. However, it is not our job to punish erring prosecutors; that is up to their superiors, and ultimately up to the State Bar. Rather, it is our duty to apply the harmless error standard laid down by article VI, section 13 of the California constitution.

We therefore conclude that there was no reasonable probability that, even in the absence of the prosecutorial error, defendant would have enjoyed a more favorable result. For the same reasons, the prosecutorial error did not render the trial fundamentally unfair in violation of due process.

C. Defense Counsel’s Failure to Request and
the Trial Court’s Failure to Give a Limiting Instruction.

Defendant also raises two related subsidiary arguments.

First, defendant contends that his defense counsel rendered ineffective assistance by failing to request a limiting instruction regarding the prior convictions.

“[A] reviewing court will reverse a conviction based on ineffective assistance of counsel on direct appeal only if there is affirmative evidence that counsel had ‘“‘no rational tactical purpose’”’ for an action or omission. [Citation.]” (People v. Mickel (2016) 2 Cal.5th 181, 198.) Here, “counsel may have deemed it tactically unwise to call further attention to defendant’s prior offenses by requesting special instructions. [Citations.]” (People v. Johnson (1993) 6 Cal.4th 1, 50, disapproved on other grounds in People v. Rogers (2006) 39 Cal.4th 826, 879.)

Second, defendant contends that the trial court erred by failing to give such a limiting instruction sua sponte.

As defendant forthrightly concedes, the Supreme Court has held that, as a general rule, a trial court has no duty to instruct sua sponte on the limited uses of a defendant’s prior crimes (e.g., People v. Mendoza (2011) 52 Cal.4th 1056, 1094; People v. Collie (1981) 30 Cal.3d 43, 64; see also Evid. Code, § 355), and we are bound to follow these holdings.

Admittedly, it has not ruled out a possible exception for the “occasional extraordinary case in which unprotested evidence of past offenses is a dominant part of the evidence against the accused, and is both highly prejudicial and minimally relevant to any legitimate purpose.” (People v. Collie, supra, 30 Cal.3d at p. 64.) Even if it were to affirmatively establish such an exception, however, this is not that case. The priors were not a dominant part of the evidence. Moreover, they were substantially relevant for the legitimate purpose of impeachment.

V

PENAL CODE SECTION 654

Defendant contends that the trial court violated Penal Code section 654 (section 654) by failing to stay the sentence on count 4 (resisting a peace officer).

Section 654, section (a), as relevant here, provides: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”

“Section 654 precludes multiple punishments for a single act or indivisible course of conduct. [Citation.]” (People v. Hester (2000) 22 Cal.4th 290, 294.) “‘“‘Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may [not] be punished . . . for more than one.’”’ [Citation.]” (People v. Jackson (2016) 1 Cal.5th 269, 354.) “If, on the other hand, defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of conduct.’ [Citation.]” (People v. Harrison (1989) 48 Cal.3d 321, 335.)

“‘“‘A trial court’s . . . finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence.’ [Citation.]” [Citation.]’ [Citations.]” (People v. McKinzie (2012) 54 Cal.4th 1302, 1368, disapproved on other grounds in People v. Scott (2015) 61 Cal.4th 363, 391, fn. 3.)

The People claim the prosecutor argued to the jury that count 1 was based on the distinct act of picking up and swinging the hammers while threatening the officers. Not so. As discussed in footnote 1, ante, the prosecutor made an election to base both count 1 and count 4 on the same act — the threat defendant made in response to Corporal Bottoms’s order to stop. Moreover, the prosecutor communicated this election to the jury in his closing argument. He did mention the later hammer incident, but only as evidence that when defendant made the original threat, he did so with the intent to deter. Thus, count 1 and count 4 were not only committed with the same intent and objective — they were the same act.

We therefore conclude that the trial court erred by failing to stay the punishment on count 4. We will correct the error by modifying the judgment.

VI

DISPOSITION

The judgment is modified so as to stay the concurrent one-year term imposed on count 4; the total sentence is unchanged. The judgment as thus modified is affirmed. The superior court clerk is directed to prepare a corrected sentencing minute order. If an abstract of judgment has been previously prepared, the superior court clerk is also directed to prepare an amended abstract and to furnish it to the appropriate authorities.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

SLOUGH

J.

FIELDS

J.