Filed 9/13/17 P. v. Robledo CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT*

APPEAL from a judgment of the Superior Court of Kings County. Donna L. Tarter, Judge.

Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lewis A. Martinez, and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Adam Jose Robledo stands convicted of two counts of battery by a prisoner on a nonprisoner (Pen. Code, § 4501.5), attempted gassing of a peace officer (id., §§ 664, 4501.1, subd. (a)), and resisting an executive officer (id., § 69). Robledo admitted two prior strike convictions. Robledo contends the trial court abused its discretion under Evidence Code[1] section 352 when it excluded from evidence complaints and lawsuits alleging use of excessive force by one of the correctional officers he was convicted of battering. We affirm.

FACTUAL AND PROCEDURAL SUMMARY

On July 28, 2015, a first amended information was filed charging Robledo with two counts of battery by a prisoner on a nonprisoner, one count of attempted gassing of a peace officer, and one count of resisting an executive officer. It also was alleged Robledo had two prior strike convictions.

On November 18, 2014, prior to trial, Robledo filed a motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 seeking disclosure of personnel records of correctional officers David Castillo and Tracy Sampson. The trial court held a hearing on the Pitchess motion on December 3, 2014, at which time the request for any personnel records on Sampson was withdrawn. The defense was pursuing the request for personnel records of Castillo only. The defense wanted any records pertaining to use of excessive force or dishonesty. The trial court apparently disclosed some information to the defense, although the personnel records showed no sustained complaints or charges against Castillo for use of excessive force or dishonesty within the past five years and no adverse or disciplinary actions taken against him.

Testimony at trial established Robledo was an inmate at Corcoran State Prison on January 3, 2014. On that date, around 9:00 a.m., Correctional Officer David Castillo was at the podium in the dayroom supervising the inmates. Robledo walked by and said, “‘Fuck you, Castillo. I know what you did last night.’” Castillo responded, “I don’t know what you’re talking about.” Robledo replied, “‘Fuck you, you know what I am talking about.’”

Castillo ordered Robledo to report to him at the podium. Robledo responded in an angry tone of voice, “‘I am not doing shit that you ask me to do. You could take my ass to the hole.’” Castillo ordered Robledo to stop; Castillo started walking toward Robledo. Robledo turned and threw a cup of liquid, which smelled like coffee, at Castillo; the liquid hit Castillo in the torso and right arm.

Robledo started walking toward Castillo, and Castillo thought Robledo was “going to further assault me.” Castillo grabbed both of Robledo’s shoulders with his hands and ordered Robledo to “get down.” Instead, Robledo started to pull away, so Castillo used his body weight to force Robledo to the ground.

As Castillo and Robledo were on the ground, Robledo tried to get up, so Castillo “grabbed his left hand and pulled it backwards,” causing Robledo to lay on his side. Robledo tried to get away by using his right hand; Castillo used his body weight to hold Robledo down, and he activated his personal alarm. While all this was occurring, Castillo was ordering Robledo to stop resisting.

Robledo turned his head and spit at Castillo; Castillo grabbed Robledo’s head and turned it away from him. All the while, Robledo was kicking and struggling. Staff arrived to assist, ordered Robledo to stop resisting, and eventually managed to place leg irons and handcuffs on Robledo. In all, Castillo estimated he had Robledo in a hold on the ground for 20 to 30 seconds. He did not use a baton or spray any mace on Robledo.

Castillo had never had any problems or negative interaction with Robledo before this incident. On cross-examination, Castillo was asked if he had a reputation “of being a hothead and getting upset easily,” to which he replied, “No.” Castillo was asked if he had ever been “accused of that” and the prosecutor objected; the objection was sustained.

Defense counsel then asked Castillo why he now was working at Kern Valley State Prison; the prosecutor objected and the trial court sustained the objection. Defense counsel then asked if Castillo had been disciplined and if that was “why you were moved to Kern Valley.” Castillo replied, “No.” On redirect, Castillo testified he was never disciplined for excessive force or had been suspended.

Outside the presence of the jury, the trial court conducted a hearing to determine if defense counsel would be able to further pursue this line of questioning and ask Castillo how many inmates had complained he used excessive force and whether Castillo had ever been sued by an inmate for use of excessive force. The trial court declined to allow the line of questioning, stating that

“[defense counsel]’s desire to bring in all these other issues that are not relevant to these proceedings concerning lawsuits by inmates, or complaints by inmates against Mr. Castillo that did not result in any disciplinary action, the Court is of the opinion that that would result in an undue consumption of time, and would be confusing the issues in this case.”

Correctional Officer Tracy Sampson was one who responded to Castillo’s personal alarm. As she arrived, she saw Castillo and Robledo on the ground; Robledo was spitting at Castillo. Sampson attempted to help restrain the lower half of Robledo’s body; Robledo kicked her. Robledo disobeyed all orders to stop resisting.

Robledo testified in his own behalf. Regarding Castillo, Robledo stated, “I told him off, and told him I know what he did to my celly. Because he was setting people up left and right.” According to Robledo, Castillo came up behind him and grabbed him, “put his arms around my neck, and started choking me.” Robledo claimed he “started choking” and “tossed the coffee away from us.”

Robledo stated he then just stood there, “making [Castillo] feel like an idiot” because “he could not put me down.” Robledo claimed he never fought back and did not try to spit at Castillo. When Robledo saw the other staff arrive, he got on the ground, lay prone, and did not resist. He stated they called for a spit mask and placed him in leg irons.

The jury found Robledo guilty on all counts as charged. On September 9, 2015, the trial court imposed a three strikes sentence of 25 years to life on count 1 (battery by a prisoner on a nonprisoner). The terms for the remaining offenses were stayed.

No notice of appeal was timely filed. On August 26, 2016, this court granted Robledo’s request to file a belated notice of appeal and have the appeal deemed timely. Robledo filed a notice of appeal on September 9, 2016.

DISCUSSION

Robledo contends the trial court abused its discretion by not admitting evidence of claims made against Castillo alleging use of excessive force.

Standard of Review

The application of rules of evidence such as section 352 does not normally implicate the federal Constitution, and any error is measured under the standard of review set forth in People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Marks (2003) 31 Cal.4th 197, 226-227; People v. Jandres (2014) 226 Cal.App.4th 340, 357.)

We review a trial court’s ruling pursuant to section 352 under an abuse of discretion standard. (People v. Doolin (2009) 45 Cal.4th 390, 437.) A trial court’s ruling to admit or exclude evidence is reviewed for abuse of discretion and will be upheld unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Ledesma (2006) 39 Cal.4th 641, 705, citing People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

Analysis

Robledo contends he should have been allowed to question Castillo and admit into evidence instances of prior complaints and lawsuits by inmates alleging Castillo used excessive force, apparently even though those complaints were found to be unsubstantiated, and the trial court abused its discretion in denying admission of this evidence.

Section 352 provides: “The 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.” The trial court is best situated to evaluate the evidence at issue through the lens of section 352 and, accordingly, enjoys broad discretion in applying the statute. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)

At trial, Robledo testified that Castillo put his hands on Robledo’s neck, after which Robledo stood there “making him feel like an idiot” because Castillo “could not put me down.” California Code of Regulations, title 15, section 3268, governs the use of force by custodial officers. This regulation, in pertinent part, states:

“The purpose of this Section is to set forth Department of Corrections and Rehabilitation (CDCR) policy governing the use of force. The policy has its foundation in California Penal Code statutes and relevant case decisions.

“(a) Definitions.

“(1) Reasonable Force:

“The force that an objective, trained and competent correctional employee, faced with similar facts and circumstances, would consider necessary and reasonable to subdue an attacker, overcome resistance, effect custody, or gain compliance with a lawful order.

“(2) Unnecessary Force:

“The use of force when none is required or appropriate.

“(3) Excessive Force:

“The use of more force than is objectively reasonable to accomplish a lawful purpose.

“(4) Immediate Use of Force:

“The force used to respond without delay to a situation or circumstance that constitutes an imminent threat to institution/facility security or the safety of persons. Immediate force may be necessary to subdue an attacker, overcome resistance, or effect custody. If it is necessary to use force solely to gain compliance with a lawful order, controlled force shall be used. [¶] … [¶]

“[(23)] (b) It is the policy of the Department of Corrections and Rehabilitation (CDCR) to accomplish the departmental functions with minimal reliance on the use of force. Employees may use reasonable force as required in the performance of their duties, but unnecessary or excessive force shall not be used.

“(c) Use of Force Options. Use of Force options do not have to be utilized in any particular sequence, but should be the force option staff reasonably believes is sufficient. Whenever possible, verbal persuasion or orders shall be issued prior to resorting to force and are required to be provided before controlled force is used.…” (Cal. Code Regs., tit. 15, § 3268, italics added.)

This regulation thus defines, in the context of custodial situations, what is excessive force and when a custodial officer may use reasonable force. When a prisoner alleges that a correctional officer used unnecessary and excessive force, the judicial inquiry is “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” (Hudson v. McMillian (1992) 503 U.S. 1, 7.)

On its face, it appears the force used by Castillo was not excessive and was no more than was necessary to maintain or restore discipline because Robledo testified that Castillo could not put him down with the amount of force being used. Robledo also testified he chose which rules and commands to obey, and he chose not to listen to Castillo’s commands on that day. When the testimony does not allege use of excessive force, and the personnel records show no sustained complaints or charges against Castillo for use of excessive force within the past five years and no adverse or disciplinary actions taken against him, unsubstantiated complaints and accusations of excessive force were not relevant to any issue in the case. (§ 210.)

To the extent the defense was attempting to assert that Castillo used excessive force against Robledo and wanted to introduce evidence of accusations that were investigated and found to be unsubstantiated to support that assertion, such evidence would have little to no relevance to the issues in the case and serve only to confuse the jury. The trial court sustained objections to this line of questioning on the grounds of relevance. Trial courts have wide discretion in determining the relevancy of evidence. (People v. Vargas (2001) 91 Cal.App.4th 506, 545.)

At the evidentiary hearing, the trial court weighed the probative effect against the undue consumption of time and its prejudicial effect, finding the evidence “would result in an undue consumption of time” and “be confusing the issues in the case.” A trial court has broad discretion under section 352 to exclude evidence, even if relevant, if the probative value is outweighed by creating undue prejudice, by confusing the issues, or by misleading the jury. (People v. Merriman (2014) 60 Cal.4th 1, 60.)

The record reflects the trial court understood and fulfilled its obligations under section 352; a trial court “need not expressly weigh prejudice against probative value or even expressly state that it has done so” before ruling. (People v. Taylor (2001) 26 Cal.4th 1155, 1169.) Unsubstantiated allegations generally are highly prejudicial and should not be admitted. (See People v. Robertson (1982) 33 Cal.3d 21, 41-42.)

On the record before us, there is no basis on which to find the trial court abused its discretion. (People v. Knoller (2007) 41 Cal.4th 139, 156.)

DISPOSITION

The judgment is affirmed.