In re Peter K.
Filed 1/8/13 In
re Peter K. CA2/2
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 TWO
In re PETER
K., a Person Coming Under the Juvenile Court Law.
B237211
(Los Angeles County
Super. Ct. No. FJ48796)
THE PEOPLE,
Plaintiff and Respondent,
v.
PETER K.,
Defendant and Appellant.
APPEAL
from a judgment of the Superior Court of
County. Robin Miller
Sloan, Judge. Affirmed.
Lisa Holder,
under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
Timothy M. Weiner, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * *
Appellant Peter K. appeals from the judgment declaring him a ward of
the juvenile court under Welfare and Institutions Code section 602. The juvenile court sustained a petition
alleging that appellant committed the crime of
performance of his duties. (Pen.
Code, § 148, subd. (a)(1).) The court
declared the offense to be a misdemeanor, and ordered appellant home on
probation for six months.
Appellant
contends (1) the juvenile court erred by denying in part his pretrial motion
for discovery of police personnel records under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (
insufficient evidence to support the juvenile court’s finding that he violated
Penal Code section 148; and (3) the court erred by setting a maximum term of
confinement. We strike the maximum term
of confinement and affirm.
FACTS
Prosecution
Case
On February 4, 2010, at about 8:00
p.m., Sergeant Asatur Mkrtchyan of the Los
Angeles Police Department (LAPD) responded to a call from the fire department
requesting backup assistance. He saw a
fire pit made of a large circular metal pan in the front yard of a house. Approximately six people were congregated
around the fire pit, consisting of five minors and an elderly man in a
wheelchair named John.
After
speaking with some firefighters, Sergeant Mkrtchyan approached the group and
spoke to John, who said he was renting the house. Sergeant Mkrtchyan advised John that the
firefighters had stated the fire was illegal and needed to be
extinguished. At that point, appellant’s
older brother B. started interrupting by saying, “Fuck you. You guys can’t be here. You can’t tell us what to do. You have no right.†B. “continued nonstop†until two other police
officers arrived and removed him from the scene.
After
Sergeant Mkrtchyan returned his attention to John, appellant, who was standing
eight to ten feet away, “continued the same kind of attitude,†saying “Fuck
you. You guys can’t be here. You can’t tell me what to do. You guys don’t have the right.†Sergeant Mkrtchyan told appellant, “I’m not
talking to you. Step to the side.†Instead, appellant approached Sergeant
Mkrtchyan and continued saying, “Fuck you guys.
Just leave. You guys can’t tell us what to do.†Appellant then lifted up his arms and
shoulders “in an aggressive manner†as though he was going to “attack†or
“strike†Sergeant Mkrtchyan. LAPD
Sergeant Gomez, who was standing nearby, grabbed appellant and pushed him against
a car parked on the lawn. Sergeants
Mkrtchyan and Gomez guided appellant to the ground and Sergeant Gomez
handcuffed him.
Defense
Case
Wilson
M. was present when appellant was arrested.
Appellant was standing near the hood of the car with his arms crossed
when an officer grabbed him by the neck and slammed him down onto the hood of
the car. When another minor had
previously asked why B. was being taken away, appellant said the officer was a
“racist.â€
S.S.,
who was also present, testified that appellant was leaning on the hood of the car
with his arms crossed when an officer approached and “pretty much choked him,â€
then put him down on the hood of the car.
Appellant
testified that he was “pretty much†leaning against the car parked on the lawn
the whole time. After Sergeant Mkrtchyan
spoke to the firefighters he approached the group around the fire pit and asked
why they were giving the firefighters a hard time. Appellant testified that his brother B.
started “acting like a smart ass.â€
Sergeant Mkrtchyan called for backup and B. was arrested after other
officers arrived. After appellant said
the arresting officer was a racist, Sergeant Gomez approached appellant without
saying a word, grabbed appellant’s neck, slammed him against the car, and choked
him. Appellant denied taking steps
towards any officers.
DISCUSSION
Appellant filed
a pretrial motion for discovery of the police personnel records of four LAPD
officers. The juvenile court conducted
an in camera hearing and ordered that information pertaining to Sergeant
Mkrtchyan regarding acts of dishonesty be turned over to appellant’s
counsel. Appellant now contends the
juvenile court erred by denying the motion as to Sergeant Gomez. “A trial court’s decision on the
discoverability of material in police personnel files is reviewable under an
abuse of discretion standard.†(
1164, 1220.)
Peace officer
personnel records are confidential.
(Pen. Code, §§ 832.7, 832.8.)
Nevertheless, criminal defendants have a limited right to discovery of
such records. (
Court (2000) 84 Cal.App.4th 1010, 1019.) A defendant must file a written motion for
discovery, which must include a description of the type of records or
information sought and a supporting affidavit that shows good cause for the
discovery. The affidavit must establish
the materiality of the discovery and state upon reasonable belief that the
identified governmental agency has the records or information sought. (Evid. Code, § 1043;
supra, at pp. 1019–1020.)
To establish
good cause for discovery, a defendant must demonstrate the relevance of the
requested information by providing a “specific factual scenario of officer
misconduct that is plausible when read in light of the pertinent
documents.†(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1025.) “[A] plausible scenario of officer misconduct
is one that might or could have occurred.â€
(Id. at p. 1026.) Furthermore, it has long been the rule that a
discovery request must be narrowly tailored to seek only documentation relating
to past officer misconduct that is related to the misconduct alleged by the
defendant in the pending litigation. (
requirement excludes requests for officer information that are irrelevant to
the pending chargesâ€]; People v. Mooc
(2001) 26 Cal.4th 1216, 1226 [“information sought must be requested with
sufficient specificity to preclude the possibility of a defendant’s simply
casting about for any helpful informationâ€]; see also People v. Jackson, supra, 13 Cal.4th at p. 1220 [“when a defendant
asserts that his confession was coerced, a discovery request that seeks all
excessive force complaints against the arresting officers is overly broadâ€];
685 [request for all complaints of excessive force overly broad since factual
allegation was solely that officers used coercive interrogation techniques;
thus “only complaints by persons who alleged coercive techniques in questioning
were relevantâ€]; California Highway
Patrol v. Superior Court, supra, 84 Cal.App.4th at p. 1023 [“there is
insufficient similarity between an allegation of officer misconduct consisting
of filing a false police report and prior officer misconduct consisting of time
card irregularitiesâ€]; City of San Jose
v. Superior Court (1998) 67 Cal.App.4th 1135, 1147–1150 [defense counsel’s
supporting declaration failed to set forth sufficient information for trial
court to assess whether records sought were material to the subject matter of
the pending litigation].)
Appellant’s
items: “All complaints from any and all
sources relating to acts of racial bias, gender bias, ethnic bias, sexual
orientation bias, coercive conduct, violation of constitutional rights,
fabrication of charges, fabrication of evidence, fabrication of reasonable
suspicion and/or probable cause, illegal search/seizure; false arrest, perjury,
dishonesty, writing of false police reports, writing of false police reports to
cover up the use of excessive force, planting of evidence, false or misleading
internal reports including but not limited to false overtime or medical
reports, and any other evidence of misconduct amounting to moral turpitude . . . .†With respect to the above-described
misconduct, the motion also sought the discovery of “any discipline†imposed
upon the named officers as a result of any citizen complaint, virtually
anything presented at any Board of Rights hearings, and the statements of all
police officers who were either witnesses or complainants to the above.
In support of
the Pitchess motion, defense counsel
declared upon information and belief that Sergeants Mkrtchyan and Gomez “were
dishonest in their report†because appellant “did not step†towards the
officers or raise his arms and shoulders, but “was only leaning against a car
when [Sergeant] Gomez grabbed him by the throat.â€
We agree with
the People that appellant’s Pitchess
motion appears to be a boilerplate motion.
It seeks an overly expansive list of confidential records, nearly all of
which are unrelated to the alleged officer “dishonesty†in the police
report. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85
[information sought must be requested with adequate specificity to preclude the
possibility that defendant is engaging in a fishing expedition].) We note that defense counsel declared that
the police report was authored by Sergeant Mkrtchyan and that she did not point
to any place in the report indicating that Sergeant Gomez participated in its
preparation. Accordingly, we are
satisfied that the juvenile court did not abuse its discretion in denying the
motion with respect to the discovery of Sergeant Gomez’s confidential personnel
records.
title="">[1]
Sufficiency of the Evidence.
Appellant
contends there was insufficient evidence to support the juvenile court’s
finding that he violated Penal Code section 148. We disagree.
A defendant
violates Penal Code section 148, subdivision (a)(1) if “(1) the defendant
willfully resisted, delayed, or obstructed a peace officer, (2) when the
officer was engaged in the performance of his or her duties, and (3) the
defendant knew or reasonably should have known that the other person was a
peace officer engaged in the performance of his or her duties. (Yount
v. City of Sacramento (2008) 43 Cal.4th 885, 894–895, citing
1325, 1329.)
Appellant argues
that the first element cannot be met because he merely exercised his First
Amendment protected right to criticize the police. “[T]he First Amendment protects a significant
amount of verbal criticism and challenge directed at police officers.†(Houston
v. Hill (1987) 482 U.S. 451, 461.)
Thus, Penal Code section 148 must be applied with great caution as to a
suspect’s speech. (Houston v. Hill, supra,
at p. 461; see also People v.
Quiroga (1993) 16 Cal.App.4th 961, 968.)
But fighting words and disorderly conduct “may lie outside the
protection of the First Amendment.†(
Appellant cites
the following testimony of Sergeant Mkrtchyan to support his position that he
was arrested for his speech and not his conduct: “[COUNSEL]
Q. So the reason you arrested
[appellant] is because he walked towards you; is that correct? [SERGEANT MKRTCHYAN] A.
No. Q. What was the reason you arrested him? A. The reason why is because he kept on
continuing to interrupt my investigation with the gentleman that says he lives
at the house . . . .
[Appellant] had no standing to say anything.†But appellant fails to cite the remainder of
Sergeant Mkrtchyan’s testimony that during the investigation, appellant “came
and approached us in a threatening manner, lifting up his arms and shoulders
trying to intimidate—I don’t know what he was trying to do. To me he was trying to intimidate us and stop
us from what we were doing.â€
In any event,
the juvenile court made clear that it did not base its finding on appellant’s
speech, but on his conduct, saying: “The
court will sustain and find true the petition, not the words, [counsel]
[Penal Code section] 148,†italics added.
While appellant argues that any conduct in which he engaged was
insufficient to constitute obstruction, delay or resistance, Sergeant Mkrtchyan
testified that appellant approached him in an “aggressive†manner as if he was
going to “attack†or “strike†him. We
are satisfied this evidence is sufficient to support the juvenile court’s
finding that appellant violated Penal Code section 148.
III.
Term of Confinement.
The disposition
imposed by the juvenile court was that appellant would continue in the home of
his parents and be placed on probation for a term of six months. In announcing the disposition, the juvenile
court stated that the maximum term of confinement was one year, and this
designation appears on the disposition minute order. Appellant asserts, and the People concede,
that a juvenile court is not required to set a maximum term of physical confinement
when the court commits a minor to the custody of his parents subject to
probationary supervision. (
573; Welf. & Inst. Code, § 726, subd. (c).)
The parties agree that the maximum term of confinement has no legal
effect in such a case. While the People
argue that appellant cannot be prejudiced by a term that has no legal effect,
we agree with appellant that the better practice is to strike the reference
from the minute order so that the
record of punishment is clear. (See
537, 541.)
DISPOSITION
We
strike the maximum term of confinement set forth in the disposition minute
order. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE
OFFICIAL REPORTS.
_____________________, J.
DOI TODD
We concur:
____________________________,
P. J.
BOREN
____________________________,
J.
ASHMANN-GERST
review of the reporter’s transcript of the in camera hearing that was conducted
by the juvenile court in order to determine for itself whether any police
personnel record documents pertaining to [Sergeant] Mkrtchyan’s dishonesty were
incorrectly withheld.†We cannot
undertake this task because the reporter’s transcript of the
record on appeal.
