P. v. Gonzalez

Filed 12/22/09 P. v. Gonzalez CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, William N. Sterling, Judge. Affirmed.

Elizabeth H. Lopez, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Steven D. Matthews, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

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Joseph Gonzalez appeals following his conviction by jury of battery with injury on a peace officer in violation of Penal Code section 243, subdivision (c)(2), and resisting an executive officer in violation of Penal Code section 69. He contends on appeal that the trial court erred in denying his Pitchess[1] motion. We disagree and affirm because Gonzalez failed to show a plausible factual scenario for the Pitchess discovery requested.

BACKGROUND

In his Pitchess motion seeking complaints against Deputy Sheriff Baker for excessive force, bias and dishonesty and coercive conduct or acts, Gonzalez offered a narrative report of Deputy Baker, whom Gonzalez was charged with battering and resisting. The report states in pertinent part as follows:

On the indicated date and time, I was assigned to module 1750. All inmates housed in module 1700/1750 are classified as K-10 inmates (dangerous and assaultive towards staff and other inmates). K-10 inmates are always handcuffed and waist chained prior to exiting their cells due to their propensity for violence.

All inmates ordered out for court are searched, waist chained and escorted to an open area in front of the 1750 control booth. These inmates are then lined up, side by side, facing a wall and instructed to remain facing the wall while deputies search their property.

Victims Johnson, Villasenor, Leslie and I, were providing security while property searches were being conducted for the inmate court line. I observed S/1 Gonzalez lean back and look to his left to watch Deputy Leslie, who was about 20 feet away, search another inmates property. S/1 Gonzalez also appeared to be observing the different locations each of the deputies were posted at behind him. I ordered S/1 Gonzalez to turn around and face the wall.

S/1 Gonzalez did not comply with my orders and continued to look around. I ordered him a second time to face the wall. He yelled out fuck you, Puro Sur Trece (Southsider 13 gang slogan). Due to S/1 Gonzalezs defiant behavior and fearing that he may be contemplating to attack me, I placed my right hand on S/1 Gonzalezs upper back and guided him against the wall. At this time, I noticed his body was tense, his breathing rapid and his fists clinched. Suddenly and without provocation, S/1 Gonzalez spun to his left and kicked me with his right foot on my lower left leg. Fearing for my safety, I pushed him with both of my hands on his chest and forced him against the wall. S/1 Gonzalez became extremely angry and shouted fuck you, keep your fucking hands off me!

Although S/1 Gonzalez was handcuffed and waist chained with his hands at his sides, he was still able to pull the chain above his waist to gain more reaching distance as he grabbed my uniform shirt and punched me. I immediately punched S/1 Gonzalez several times on the face with my left fist while holding the right shoulder area of his shirt with my right hand. He violently shook his upper body from side to side trying to break free from my hold. I repeatedly ordered him to stop fighting, but he did not comply. S/1 Gonzalez threw several punches at me with both arms.

V/2 Deputy Johnson immediately came to my aid and punched S/1 Gonzalez several times on the face (refer to his supplemental report under same file number). S/1 Gonzalez continued to punched [sic] and swing his elbows at me. I threw several more punches with both of my fists striking S/1 Gonzalezs face and upper body. My punches appeared to have little or no affect [sic] as S/1 Gonzalez continued to kick, head butt and punch at me.

I ordered S/1 Gonzalez to stop fighting several times. He did not comply. As I punched him several more times on the stomach, he bent over at his waist and turned to his right. He then jabbed his left elbow backward and struck me on my right eye. While unable to see out of my right, I kicked his left leg out from underneath him, causing him to fall to the floor. I immediately placed my left knee on the center of his back and used my body weight to prevent him from getting up. I ordered S/1 Gonzalez to remain face down on the floor. S/1 Gonzalez continued to resist as he thrashed from side to side while pushing up and yelling get the fuck off me.

Deputy Johnson ordered S/1 Gonzalez to stop resisting. S/1 Gonzalez did not comply and yelled you guys aint shit. To obtain compliance, Deputy Johnson sprayed a 2 to 3 second burst of Freeze + P spray at S/1 Gonzalezs face. This appeared to have little or no affect [sic] on S/1 Gonzalez as he continued to kick, thrash and yell profanities at us.

V/3 Deputy Villasenor responded to our location and applied a contact shot with the X-26 Taser (Ev.#1) on S/1 Gonzalezs back. This had an immediate affect as S/1 Gonzalez stopped resisting and complied with our orders without any further incident.

In a supporting declaration, Gonzalezs counsel states: 7. In this case the specific factual scenario which gives rise to this motion is this: [] 8. Deputy Baker lied when he said that Joseph Gonzalez hit him. Later, counsel filed another declaration in which she states, in pertinent part: 6. when Deputy Baker says he guided Mr. Gonzalez to the wall, what really happened is that Baker slammed Gonzalez into the wall, and since Mr. Gonzalez was handcuffed and chained at the waist he could not defend himself. [] 7. Baker says Gonzalez punched him, although he was still waist chained. Baker then punched Gonzalez 3 to 4 times in the face. [] 8. Deputy Johnson then came and got in a few good punches, while Baker continued to punch Gonzalez. Baker says that Gonzalez elbowed him in the eye. That did not happen. [] . . . [] 11. the deputies are not telling the truth and Mr. Gonzalez is.

The trial court denied the motion, stating, I dont see any plausible factual scenario given to the court.

DISCUSSION

In order to obtain Pitchess discovery, [c]ounsels affidavit must . . . describe a factual scenario supporting the claimed officer misconduct. The factual scenario, depending on the circumstances of the case, may consist of a denial of the facts asserted in the police report. (Warrick v. Superior Court (2005) 35 Cal.4th 1011, 10241025 (Warrick).) What standard must a moving party meet to show a plausible factual foundation for the Pitchess discovery requested? We conclude that a plausible scenario of officer misconduct is one that might or could have occurred. Such a scenario is plausible because it presents an assertion of specific police misconduct that is both internally consistent and supports the defense proposed to the charges. (Id. at p. 1026.)

In Warrick, according to the police report, the defendant was seen holding a clear plastic baggie containing off-white solids in his hand. The defendant fled and discarded numerous off-while lumps resembling rock cocaine when officers exited their marked patrol car. The defendant was arrested after a short pursuit; he had an empty baggie in his hand and in his pocket three porcelain spark plug chips commonly used by auto thieves. The defendants version was that when the officers exited their patrol car, the defendant, fearing an arrest on an outstanding parole warrant, started to run away, but within moments the officers caught up with him. Meanwhile, there were people pushing and kicking and fighting with each other as they collected from the ground objects later determined to be rock cocaine. After the officers retrieved some of the rocks, an officer told the defendant that he must have thrown them. The defendant denied possessing or discarding any rock cocaine; he was in the area to buy cocaine. The Supreme Court in Warrick held that the defendant had provided a plausible factual scenario for the Pitchess discovery requested.

Here, there is no factual scenario offered by Gonzalez, plausible or otherwise. A scenario (defined in Websters Third New International Dictionary (1976) at page 2028 as an outline or synopsis of a play) should have a beginning and an end and contain the pertinent events as demonstrated in Warrick. Gonzalez fails on all three requirements because, unlike the defendant in Warrick, he does not address the beginning and the end, as well as all of the pertinent events of Deputy Bakers account.

Deputy Bakers account begins with Gonzalezs refusal to obey orders, shouting an obscenity and a gang slogan, kicking Deputy Baker, more cursing by Gonzalez, his grabbing Deputy Bakers shirt and punching Deputy Baker, notwithstanding the handcuffs and waist chain on Gonzalez. Deputy Baker returned the punches and Deputy Johnson came to aid him. Gonzalez elbowed Deputy Baker. The incident ended when Gonzalez was taken to the floor and subdued after being sprayed in the face and tasered in the back.

For his part, Gonzalez ignores the beginning of Deputy Bakers scenario and does not deny that he refused Deputy Bakers orders and kicked him. Rather, Gonzalez maintains that Deputy Baker and 11 other deputies lied, Deputy Baker slammed Gonzalez into the wall, Gonzalez could not defend himself because of the handcuffs and chains, and he did not elbow Deputy Baker in the eye. Gonzalez did not deny struggling with Deputy Baker; Gonzalez did not say that he did not kick Deputy Baker; he said only that Deputy Baker was lying about Gonzalezs hitting Deputy Baker. Finally, Gonzalez does not deny the end of Deputy Bakers scenario in which Gonzalez resisted while on the floor, cursing, kicking and thrashing until he was sprayed and tasered.

Gonzalezs showing is insufficient because it is not complete. We do not reject [his] explanation because it lacked credibility, but because it does not present a factual account of the scope of the alleged police misconduct, and does not explain his own actions in a manner that adequately supports his defense. . . . Counsels declaration simply denied the elements of the offense charged. (People v. Thompson (2006) 141 Cal.App.4th 1312, 1317.) [Gonzalez] does not provide an alternate version of the facts regarding his . . . actions . . . . He does not explain the facts set forth in the police report. In essence, his declaration claims that the entire incident was fabricated . . . . (Id. at p. 1318.)

We conclude that Gonzalez has failed to show a plausible factual scenario for the Pitchess discovery requested.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, P. J.

We concur:

CHANEY, J.

JOHNSON, J.

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[1]Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).