P. v. Rock
Filed 4/10/13 P. v. Rock CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
JACOB AARON ROCK,
Defendant
and Appellant.
E054255
(Super.Ct.No.
FVA901525)
OPINION
APPEAL
from the Superior Court
of
County. Dwight W.
Moore, Judge. Affirmed.
Janice
R. Mazur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and
Susan Miller, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
In
this case, the prosecution and the defense presented radically different
versions of the events that occurred at a party in Fontana
in August 2009. It appears the jury
generally accepted the defense version, finding defendant Jacob Aaron Rock
guilty only of a lesser misdemeanor offense of assault on a police officer
(Pen. Code, § 241,
name="_ftnref1" title="">[1] subd. (c)) rather than the charge of assault
on a police officer with a deadly weapon (§ 245, subd. (c)) in count 1,
found not true the allegation of great bodily injury as to that count
(§ 12022.7), and voted 11 to 1 and 10 to 2 in favor of acquittal on two
additional counts of resisting executive
officers (§ 69).
name="_ftnref2" title="">[2] Defendant contends the trial court erred in
refusing to instruct the jury with his requested instruction on willful
destruction of evidence. We agree that
the trial court abused its discretion by failing to impose an appropriate
sanction in the event the jury made a factual finding of willful destruction of
evidence; however, we find the error harmless, and we affirm.
Defendant
Jacob Aaron Rock appeals from his conviction of misdemeanor assault on Police
Officer Shane McCoy (§ 241, subd. (c)) as a lesser included offense to the
charge of assault on a police officer with a deadly weapon (§ 245, subd.
(c)).
refusing to instruct the jury with a requested instruction on willful
destruction of evidence. Although we
agree the trial court failed to instruct the jury properly on willful
destruction of evidence, we find the error harmless and we therefore affirm.
II. FACTS AND PROCEDURAL BACKGROUND
Prosecution Evidence
About
1:00 a.m. on August 30, 2009, Fontana Police Officers Martin
Diaz and Ancona were dispatched to
a residence in Fontana in response
to a “loud noise party call.†The
property contained corrals and several outbuildings in addition to the
residence. When they arrived, Officer
Diaz heard loud music and he heard a woman scream, “Help.†They saw 400 to 500 people at the party, many
of whom were wearing baggy clothes and appeared to be intoxicated. Officer Diaz saw two men who were bleeding
from their faces, and he saw one of the men punch the other. He assumed everyone was armed. He yelled, “‘Police. Party’s over.
Everybody needs to go home.’â€
People started running in every direction, and some guests began yelling
profanities at the officers. A group of
people surrounded the officers and backed them up against a wall. Officer Diaz radioed in a request for
emergency assistance. Bottles, cans, and
rocks were thrown at the officers, and Officer Diaz was hit in the chest with a
full beer bottle. He drew his gun and
arrested the person who had thrown the bottle.
He never had any contact with defendant.
Officer
Shane McCoy arrived in response to the request for assistance. He estimated there were “at least 200 peopleâ€
at the party. He could hear Officer Diaz
yelling “get back†and “stop resisting.â€
As Officer McCoy pushed his way through the crowd to get to Officers
Diaz and Ancona, a man pushed him,
and Officer McCoy struck the man in the face with his elbow, causing the man to
fall down. Officer McCoy parted the
crowd a little, and he saw Officers Diaz and Ancona
struggling with a subject on the ground while a group of men surrounded the
officers and advanced on them; some were throwing beer bottles.
Officer
McCoy yelled at the crowd to get back, but they did not obey. About four men advanced toward him, and he
believed they were going to attack him, so he swung his flashlight at them and
struck several of them. The men backed
up a few feet, and Officer McCoy radioed for backup. A man knocked the flashlight out of the
officer’s hand and put both of his hands around the officer’s neck. Officer McCoy kneed the man in the
midsection.
Defendant
approached, and Officer McCoy told him to get back. Defendant said, “‘I ain’t doing nothing,’â€
and continued to walk quickly toward the officer. Officer McCoy struck defendant’s chest with
his elbow and forearm, and defendant stepped back. Defendant then advanced on the officer
swinging his arm at him. Defendant was
holding a rock, and he hit the officer on the bridge of the nose. Defendant again advanced on Officer McCoy,
but another man in the crowd attempted to block his path. Officer Buddy Porch arrived, and Officer
McCoy told him they needed to take defendant into custody.
Defendant
ran to the back of the property, and Officer McCoy followed him but was blocked
by another man who refused to move when told to. Officer McCoy struck that man with his baton,
causing him to fall down. Officer McCoy
saw Officer Buddy Porch tackle defendant, and he saw defendant struggling with
several other officers. Defendant was on
the ground kicking at the officers and trying to get up. Officer McCoy struck defendant’s upper body
with his baton, and the other officers handcuffed him.
Officer
Porch arrived at the party and saw Officer McCoy with blood on his face
pointing toward defendant. Officer McCoy
said defendant had hit him. Defendant
was running away from the area, and Officer Porch followed him. Defendant punched Officer Porch in the face,
and the officer punched him back.
Defendant fell to the ground.
Officers
Shannon Van der Kallen and Erik Savage testified they saw defendant hit Officer
McCoy in the face. Officer Van der
Kallen had not seen Officer McCoy do anything to defendant before that. While trying to apprehend defendant, Officer
Van der Kallen struck defendant two or three times with his flashlight, kicked
him two or three times, and struck him in the face with his fist. Officer Savage testified that after defendant
struck Officer McCoy, defendant lunged at Officer Porch and punched him in the
face. Officer Savage kicked defendant
while defendant was on the ground because defendant was resisting arrest.
K-9 Officer Katie
Beebe saw defendant on the ground struggling with other officers. She told him to stop resisting, and when he
refused, she unleashed her dog at him and commanded the dog to bite. The dog bit defendant several times, and the
officers gained control of defendant. As
soon as they handcuffed him, she called off her dog.
Officers Diaz,
McCoy, Van der Kallen, Beebe, and Porch did not see any witnesses trying to
record the events with recording devices and did not see any officer remove a
recording device from a civilian.
It was stipulated
that it was police department policy to book into evidence any cell phone or
camera found at the scene, and no such devices were booked into evidence in
this case.
After his arrest,
defendant told Officer Nicholas Sadler he drank three or four beers that
night. A recording of the interview was
played for the jury. Defendant admitted
he had swung at an officer to defend himself after the officer came at him with
a baton. He denied he had used a rock or
any other object. Officer Sadler
testified defendant’s eyes were red, bloodshot, and watery, and his speech was
slurred. The officer believed defendant
was under the influence of alcohol.
Defense Evidence
Maria
del Carmen Casillas
title="">[4] testified she had known defendant since he was
a child; he was not violent and was respectful of authority. On August 30, 2009, she attended a
baptism party for her grandchildren in Fontana.
About 300 guests of all ages from infants to elderly persons had attended
the party, but by midnight when the party was winding down, only about 60 guests
remained, and people were starting to clean up.
No one was dressed in baggy gang-banger clothing. Although alcoholic beverages were served at
the party, no one seemed to be out of control with their drinking. Private guards provided security at the
party.
Shortly after
midnight, a scuffle occurred when two men pushed each other. A few minutes later, about 40 police officers
ran in and started shoving people, knocking them to the ground, and hitting
them. Maria heard the officers say
things like, “‘Stupid Mexicans.’†She
did not see anyone throw anything at the officers or act aggressively. Officers fired rubber bullets at Maria, her
daughter, and other guests. Maria saw
one of her sons and defendant run toward the corral, and an officer knocked
them down. Defendant put his hands out
and pushed an officer to get around him; the officer punched defendant in the
face, and defendant fell to the ground.
Maria’s son, Dorian Casillas, got between defendant and the officer, and
officers knocked both of them over.
While defendant was on the ground, an officer sat on him and hit him in
the face. Defendant was turned over, and
another officer hit him. Officers kicked
him after he was handcuffed and lifted him by his arms and dropped him. A police dog was released on Dorian and
defendant. Defendant was very beaten up
and had a lot of blood on his face.
Maria
saw several people videotaping the events.
A police officer came up behind a woman who was recording the police
hitting a man on the ground, and the officer took the video recorder, put it in
a nylon bag, and took it with him.
Maria’s daughter-in-law was also recording the officers who were beating
defendant, and another officer took her camera and threw it on the ground. Maria’s son, Jonathan Casillas, was holding
his cell phone high in front of him in the direction where defendant was being
handcuffed, and a police officer knocked the phone out of his hand. The phone broke, and the officer took it and
did not return it.
Raven
Lapetina testified he had been with defendant at the party the whole time. It was a family party, and they were not
intoxicated. No alcohol was served after
about midnight or 12:30, and only about 50 people were left at the party. Some people were cleaning up. A small scuffle occurred between two people,
and a few minutes later, about 30 police officers came running in and started
shooting beanbag guns.
A
blond-haired officer sprinted toward defendant, grabbed him by the shoulders,
and hit him with his knees in the back, slamming defendant into a wall. Defendant, whose back had been to the
officer, started to turn around, and he swung, hitting the officer in the
nose. Another officer ran up to
Lapetina, hit him in the chest with a shotgun, and told him to get back. After defendant hit the blond officer,
another officer slammed defendant to the ground and hit him. Another officer got on top of defendant and
hit him with his knees. The two officers
continued kneeing defendant on his neck, shoulders, and head. A police K-9 was on top of defendant, biting
him on the neck. Lapetina did not see
defendant fight the officers; defendant was lying face down on the dirt
screaming. Lapetina did not see anyone
throw bottles, cans, or rocks at the officers, and he did not see a rock in
defendant’s hand when he hit the blond officer.
Lapetina saw Jonathan Casillas using a cell phone to record the
encounter and the dog attack when an officer came up and slammed the phone out
of Jonathan’s hand. The officer smashed
the phone and kept stepping on it.
Another officer hit a phone out of a person’s hand with a baton when the
person was pointing it toward the activity involving officers and
defendant. Lapetina saw officers picking
up cell phones and recording devices from the ground and putting them in a
bag. Defendant had bruises and injuries
to his face and torso that remained visible for three or four weeks.
Viviana
Ortega was at the party with several family members, including her
children. She did not know
defendant. She saw 10 or 15 police
officers arrive, and she saw Jonathan recording events with a cell phone. An officer approached Jonathan and slapped
the phone to the ground. She heard
Jonathan yell that the phone was broken and asked if anyone else had a
phone. She did not know Jonathan before
the event.
Coral
Ortega attended the party with several relatives, including four young
children. She did not know
defendant. About 250 or 300 people had
attended the party, but by the time the officers arrived, the party was winding
down, people were cleaning up, and only about 100 people remained. Alcohol was served, but it was a family
event; no one was belligerently drunk, and no one was wearing baggy clothing. Like other witnesses, she testified there had
been a scuffle shortly before the police arrived. She saw two officers walk toward the back of
the party, and then she saw 8 to 11 officers with rifles. She did not see anyone throw anything at the
officers or act aggressively toward them.
Coral’s husband had gone into a Porta-Potty, and when he came out, he
was shot with a Taser, fell to the ground, and then was beaten. An officer put a gun to Coral’s head when she
tried to go to her husband and told her to get out of there. Coral was holding her four-year-old child
when that occurred. She saw three
recording devices being used, but she did not know the people doing the
recording. She did not see any officer
take recording devices or cell phones away from the people. Jonathan showed her his cracked cell phone.
Luis
Chavez, a friend of defendant, was a guest at the party. People were drinking, but no one was out of
control. By 12:30 a.m., the party
was winding down; about 80 people were still there. A fight took place between two men, but the
participants were kicked out and it was quickly over. A few minutes later, a few officers arrived,
and shortly after that, about 30 officers swarmed in, running toward the party
and pushing people out of the way.
Chavez did not see anyone acting aggressively toward the police or
throwing anything at them. He saw a tall
blond officer approach defendant, who was talking with friends, and grab him by
the shirt and push him away. Defendant
put up his hands. The blond officer
grabbed defendant, tossed him to the ground, got on top of him, and started
hitting him. Two or three more officers
began hitting defendant with hands and batons, while defendant was face down on
the ground with his hands covering his head.
Chavez saw a man using a cell phone to record the events, and an officer
told the man to put the phone away or the officer would take it away. The man complied.
David
Caldera worked as a security guard at the party. He was not acquainted with defendant. About 300 or 350 guests, including children,
had attended the party. Around midnight
when Caldera left, about 280 guests remained.
People were drinking but they were not acting intoxicated.
Michael
Carrier testified that he was a friend of defendant’s family, and he knew
defendant to be “a very humble, loving kid, very respectful.â€
Maribel
Davis testified she worked with defendant and was his friend. She knew him to be a truthful, nonviolent
person who was respectful of authority.
Rebuttal Evidence
The police
dispatch log showed that 42 officers had responded to the party scene, but the
officers had not all arrived at the same time.
An
expert witness testified that officers are trained to order persons to put
things down or to take steps to prevent objects from being thrown when items
are thrown at them. The level of force
is up to the officer and depends on the situation. Witnesses have a right to record police
actions, and officers are not trained to knock recording devices out of
witnesses’ hands unless there is a threat the devices will be used as weapons
against the officer. Based on reports of
persons at the party throwing bottles and other items, it would be consistent
with department policy for officers to knock items, including cell phones or
cameras, out of peoples’ hands. Officers
are not trained to stomp on recording devices or to seize and remove
items. If an officer picked up a
recording device to prevent it from being thrown, it should be booked as found
property.
Verdict and Sentence
The jury found
defendant guilty of misdemeanor assault on a police officer (§ 241, subd.
(c)) as a lesser included offense to the charge of assault on a police officer
with a deadly weapon (§ 245, subd. (c)).
The jury found not true the allegation that defendant inflicted great
bodily injury (§ 12022.7) and was hung on two additional counts of
resisting an executive officer (§ 69).
The trial court invited the prosecutor to converse with the jury after
the jury was discharged, and the prosecutor thereafter represented to the court
that the jury votes on those counts had been 11 to 1 and 10 to 2 in favor of
acquittal. The trial court dismissed
those counts on the People’s motion under section 1385.
The trial court
sentenced defendant to serve 180 days in jail.
III. DISCUSSION
Defendant contends
the trial court erred in refusing to instruct the jury with a requested
instruction on willful destruction of evidence.
Additional Background
Defense counsel
requested the trial court to instruct the jury on willful destruction of
evidence as follows: “If you find that
any police officer intentionally and willfully attempted to suppress material
evidence by destroying cell phone or video recording of the officers’ conduct
and actions at the August 30, 2009 party at 15765 Santa Ana Avenue in
Fontana, you must presume that the destroyed evidence would have shown that the
police officers were not lawfully performing their duties at the party and were
instead using unreasonable or excessive force.
If you find that any police officer destroyed this type of evidence,
this alone can create a reasonable doubt about [defendant’s] guilt on all
charges.â€
The trial court
stated it would not give that requested instruction but instead instructed the
jury as follows: “‘If you find any
police officer intentionally, willfully destroyed any cell phone or video
camera in this case, you may consider that evidence in determining whether or
not there’s a reasonable doubt to the defendant’s guilt on all charges.’â€
Standard of Review
Defendant’s
proposed instruction addressed a factual issue raised by the evidence: did police officers deliberately destroy
potentially exculpatory evidence. We
review de novo whether the trial court properly instructed the jury on that
issue. (People v. Gurule (2002) 28 Cal.4th 557, 659.)
Defendant’s
requested instruction also proposed a remedy in the event the jury found such
destruction of evidence: a presumption
of unlawful performance of official duties and an instruction that deliberate
destruction of evidence could create a reasonable doubt. We review for abuse of discretion the remedy
the trial court selects for destruction of evidence. (People
v. Zamora (1980) 28 Cal.3d 88, 99 (Zamora).)
C. Analysis
1. Duty to Instruct
“A trial court
must instruct the jury, even without a request, on all general principles of
law that are ‘“closely and openly connected to the facts and that are necessary
for the jury’s understanding of the case.â€
[Citation.] In addition, “a
defendant has a right to an instruction that pinpoints the theory of the defense . . . .’†[Citation.]â€
(People v. Hovarter (2008) 44
Cal.4th 983, 1021.) However, “[t]here is
no requirement that the jury be instructed in the precise language requested by
a party. [Citation.]†(People
v. Kegler (1987) 197 Cal.App.3d 72, 80.)
And it is not error to refuse to give a proposed instruction if other
instructions adequately addressed the same point. (See, e.g., People v. Zamudio (2008) 43 Cal.4th 327, 361.) We will therefore focus on the adequacy of
the instruction the trial court actually gave.
Obligation to Preserve Evidence
Law enforcement
agencies have a constitutional obligation to preserve evidence “that might be
expected to play a significant role in the suspect’s defense.†(California
v. Trombetta (1984) 467 U.S. 479, 488, fn. omitted.) To fall within the scope of this duty, the
exculpatory value of the evidence must be apparent before the evidence was
destroyed, and the evidence must “be of such a nature that the defendant would be
unable to obtain comparable evidence by other reasonably available means.†(Id.
at p. 489.) A failure to preserve
evidence done in bad faith constitutes a due process violation. (Arizona
v. Youngblood (1988) 488 U.S. 51, 58.
Unlike
in Zamora, where it was undisputed
that the city attorney’s office had destroyed records of complaints against
police officers (Zamora,
evidence in this case was controverted:
five eyewitnesses testified on defendant’s behalf that they had seen
police officers destroying cell phones or recording devices or ordering
civilians not to use them; whereas, the police officers testified they had not
seen anyone using cell phones or recording devices and had not seen such
devices being destroyed. Thus, the
evidence presented a question of fact as to whether police officers destroyed
material evidence. (People v. Hovarter, supra,
44 Cal.4th at p. 1021.) Both defendant’s
requested instruction and the instruction the trial court actually gave
properly left that issue to the jury.
3. Adequacy of Sanction
The second issue
presented was the appropriate sanction if the jury found a due process
violation had occurred.
28 Cal.3d at page 99, our Supreme Court held that the trial court has
discretion to select an appropriate remedy.
In that case, citizen complaints against police officers had been
destroyed, but the trial court found that the destruction of the complaints had
not been in bad faith and refused to impose sanctions on the prosecution. (Id.
at pp. 93-94.) The Supreme Court
reversed, and in doing so, identified three factors for determining the proper
sanction for destruction of evidence.
First, the court considered “‘the particular circumstances attending
[the] loss or destruction,’†and noted that if the destruction was lawful and
proper, no sanction was warranted, but if the destruction was illegal and
malicious, dismissal of the action might be appropriate. (Id.
at p. 100.) Second, the court noted that
“the sanction depends on the materiality of the evidence suppressed.†(Ibid.) Finally, the court stated that in imposing a
proper sanction, “the courts must consider the impact of the sanction upon
future cases and future police conduct.â€
(Ibid.) Applying those principles, the court
fashioned a remedy that addressed specifically the evidence lost to the
defendant: “[U]pon remand of this case,
the court should instruct the jury that [the officers]
used excessive or unnecessary force on each occasion when complaints were filed
against those officers, but that the complaint records later were
destroyed. The court should also
to infer that the officers were prone to use excessive or
unnecessary force [citation] and that the officers’ testimony regarding
incidents of alleged police force may be biased. [Citation.]â€
(Id. at pp. 102-103, fn.
omitted.)
Similarly, in
773, 793, the court approved an instruction to the jury that it “may†draw an
adverse inference from destruction of evidence, and such adverse influence “may
be sufficient to raise a reasonable doubt†as to certain counts. In that case, the trial court found the
evidence had been destroyed under an existing policy, in violation of a
discovery order, but not in bad faith. (
Here,
the trial court instructed the jury that if it found police officers had
willfully destroyed a cell phone or video camera, the jury could “‘consider
that evidence in determining whether or not there’s a reasonable doubt to the
defendant’s guilt on all charges.’†Such
evidence was material, because the defense to all the charges was that the
officers were not lawfully performing their duties and were using excessive
force. In our view, that instruction
imposed no meaningful sanction for a due process violation—even without that
instruction, the jury could, of course, consider the police conduct, among all
the other evidence, in determining whether the People met their burden of
proving defendant’s guilt beyond a reasonable doubt. The trial court’s instruction did not inform
the jury that it could draw an adverse
inference from willful destruction of evidence (see Zamora, supra, 28 Cal.3d
at pp. 102-103) or that such inference could be sufficient to raise a
reasonable doubt as to defendant’s guilt (see ibid.; see also People v.
Wimberly, supra, 5 Cal.App.4th at
p. 793). Thus, the trial court’s
instruction failed to consider “the impact of the sanction upon future cases
and future police conduct.†(
conclude the trial court’s instruction was an abuse of discretion.
D. The Error Was Not Prejudicial
The People argue
the instructional error is reviewable under the standard of
818. However, in People v. Yeoman (2003) 31 Cal.4th 93, 126, the court assumed the
People’s loss of original photographs implicated the defendant’s
therefore reviewable under the standard of Chapman
v. California (1967) 386 U.S. 18, 24 (Chapman). (See also Zamora,
supra, 28 Cal.3d at p. 104, fn. 11
[“[S]ince suppression of evidence constitutes a violation of a defendant’s due
process rights [citations], it would appear that the proper test to be employed
here is that enunciated in [Chapman]
nature. [Citation.]â€].)
We nonetheless
conclude the error was not prejudicial even under Chapman. As noted, defendant
was convicted only of misdemeanor assault on a police officer as a lesser
included offense to count 1. That count
was based on defendant striking Officer McCoy in their initial encounter. However, none
of the defense witnesses testified there was anyone recording the events when
Officer McCoy first encountered defendant; rather, the witnesses testified
the recording was taking place when defendant was already on the ground being
kicked and beaten by the officers, being attacked and bitten by the K-9, or
being handcuffed. Thus, based on the
record before us, even if the trial court had instructed the jury it could draw
an adverse inference that could lead to a reasonable doubt as to defendant’s
guilt if the jury found the officers had destroyed evidence, the instruction
would not have been relevant as to count 1.
IV. DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MCKINSTER
J.
CODRINGTON
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code.
name="_ftn2" title=""> [2] The trial court dismissed those counts on the
People’s motion under section 1385.
