Petrossi v. Mikolich
Filed
4/2/13 Petrossi v. Mikolich CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
EDWARD PETROSSI,
Plaintiff and
Appellant,
v.
KELLY SPURLOCK MIKOLICH et al.,
Defendants and
Respondents.
F064854
(Super.
Ct. No. 659547)
APPEAL from
a judgment of the Superior Court of
County. William A. Mayhew, Judge.
Edward
Petrossi, in pro. per., for Plaintiff and Appellant.
Susana
Alcala Wood, City Attorney, and James F. Wilson, Deputy City Attorney, for
Defendants and Respondents.
-ooOoo-
This is an
appeal from a judgment for defendants and respondents, Kelly Mikolich and David
Perine, entered after a jury returned a unanimous verdict in their favor in a
contends the trial court erred in admitting and excluding certain evidence and
that the trial judge failed to disclose that he was incapacitated by
trial. There is no merit to plaintiff’s
contentions. We affirm the judgment.
Facts and Procedural History
Plaintiff
sued defendants for personal injury seeking compensatory
and punitive damages. The matter
went to trial on plaintiff’s first amended complaint.
The
evidence apparently credited by the jury disclosed that defendants, both
Modesto police officers, were dispatched to an apartment building to
investigate a report of a man sitting outside in his pajamas talking to
himself. In response to questioning from
Mikolich, plaintiff said he had stopped taking his
contemplating harming himself. Mikolich
handcuffed plaintiff and both officers helped plaintiff to his feet. They escorted him to Mikolich’s patrol
car. He got in the back seat and
Mikolich fastened his seatbelt. She
drove at normal speeds to a local mental health hospital, where she filled out
the forms to admit plaintiff for a 72-hour evaluation. (See Welfare & Inst. Code, § 5150 et
seq.) The hospital took custody of
plaintiff and the officers returned to their normal duties about 40 minutes
after the original dispatch.
Plaintiff
testified he was sitting on the lawn meditating when the officers snuck up
behind him. Without any conversation,
they handcuffed him and placed him in Mikolich’s patrol car, not fastening his
seatbelt. Mikolich turned on her siren
and drove fast and erratically, turning hard at various points so plaintiff was
thrown around in the rear of the car.
When she stopped in a parking lot, Perine opened the door and pulled
plaintiff out by his feet. Perine used
his foot to hold plaintiff’s head to the pavement while two or three unknown
persons kicked plaintiff to unconsciousness.
Plaintiff drifted in and out of consciousness, but awoke to find himself
confined at the mental hospital. He was
released later that day. He testified he
suffered bruising and permanent, disabling injury to his back and neck.
A nursing
supervisor, relying on the medical records of the mental hospital, testified
that plaintiff did not appear to be injured when admitted to the facility.
The jury
unanimously returned a special verdict determining that both defendants
intentionally touched plaintiff and that neither defendant used unreasonable
force in doing so. The court entered
judgment for the defendants.
Plaintiff
presented several photographs as evidence of
foundation for the photographs, defendants’ counsel objected that plaintiff’s
counsel was holding the photos so the jury could see them. The court sustained the objection and
instructed counsel: “You cannot show
them to the jury until they are in evidence.
They’re not in evidence at this point.â€
After two more questions to plaintiff, counsel moved the exhibits into
evidence, and they were received. From
this brief episode, plaintiff concludes that the trial court “manipulated†the
evidence to confuse the jury. Because of
the “ping-pong effect†of the court’s rulings, the “jury did not know to apply
[that] photographic evidence
during their deliberation period ….†The
court’s rulings were not error. Only
relevant evidence is admissible. (Evid.
Code, § 350.) The court must make
an initial determination whether evidence is relevant (id., § 210), based on its determination of preliminary facts (
admissibility, and until that point, unless the opposing party fails to object
to the evidence, the jury is not permitted to hear, see, or consider the
evidence. (Id., § 310, subd. (a) [court, not jury, determines preliminary
facts for admissibility].) Plaintiff’s
counsel addressed the photographs in his argument to the jury: “Please look at these pictures carefully as
they show parts of Mr. Petrossi’s body, scratched and bruised.†There is no indication in the record that
anyone was confused about the photographs.
Plaintiff
contends the court erred in admitting a police printout of the dispatch of the
officers to the scene. Mikolich
testified that the printout accurately reflected the information sent by the
dispatcher to the officer’s computer screen in her patrol car. Among other information on the printout was
the statement that plaintiff was “SITTING AT STAIRWELL INFO OFFICE TALKING TO HIMSELF,
HE IS POSS 5150, HAS BEEN LIKE THIS FOR THE PAST 7 DAYS.†Plaintiff contends that permitting this
document into evidence was both evidence of the trial court’s bias against him
and was the reason the jury, which found the officers “intentionally touchedâ€
plaintiff, did not award damages for use of unreasonable force. First, this argument wholly ignores the fact
that the court redacted the exhibit, to remove the text, leaving primarily the
computer-generated timeline for the dispatch (9:38 a.m.) and closing of the
incident (10:15 a.m.). The requirements
for admitting the document into evidence as a business record were satisfied
and all unduly prejudicial materials from the exhibit were redacted. The trial court did not err, and its actions
do not in any way indicate bias against plaintiff. Further, there is no discrepancy between the
jury’s determination that the officers “intentionally touched†plaintiff, but
did not use unreasonable force: Both
officers testified that after Mikolich handcuffed plaintiff, the officers
helped him to his feet by holding his arms because, as Mikolich testified,
“obviously that would be difficult for any person to try to stand up on their
own with their hands behind their back ….â€
The jury credited this testimony but, as evidenced by the verdict, also
credited the officers’ testimony that they did not use any other force on
plaintiff other than to handcuff him.
This determination by the jury is well-supported by the evidence at
trial and was not the result of the admission of the limited portions of the computer
printout.
Plaintiff
also contends the trial judge was suffering from a cold during the trial and
that if the court had “disclosed†this to plaintiff, he might have sought to
disqualify the judge under Code of Civil Procedure section 170.1, subdivision
(a)(6)(A)(iii).
title="">[1] At the very outset of the trial, the court
apologized to the jury, stating that he was “sucking on a cough drop because …
I have had a little problem with coughing.â€
At the end of the second day of trial, the court told the jury that the
court would recess until the next day “at 9:00 o’clock.†After other remarks, the court
continued: “So have a good
evening…. And please be on time, 9:30,
so we can get going by the way.†Counsel
asked for clarification. The court
acknowledged its error, and then made a small joke: “I guess this cold got to me a little
further. Wrecking my clock.†The court said it meant to bring counsel back
at 9:00 a.m. and the jury at 9:30 a.m.
Based on this, plaintiff argues that the trial judge should have told
plaintiff about his “medical
condition†so plaintiff could disqualify the judge “on reasons of inability
to focus and lack of capacity of recognition thereto†because these conditions
permitted the defendants to “manipulate[] the court to make errors†in ruling
on the evidence.
Disqualification
under Code of Civil Procedure section 170.1, subdivision (a)(6)(A)(iii)
involves an objective test, namely, whether a reasonable member of the public
at large, aware of all the facts, would fairly entertain doubts concerning the
judge’s impartiality. (
Cal.App.4th 312, 319.) “[T]he litigants’
necessarily partisan views [do] not provide the applicable frame of reference.†(United
Farm Workers of America v. Superior Court (1985) 170 Cal.App.3d 97,
104.) When the issue of impartiality
arises after proceedings in a matter have begun (and here the issue is raised
only after judgment has been entered), the judge’s conduct of the trial “must
be considered as evidence of his impartiality†or bias. (Id.
at p. 106, fn. omitted.) Further, where
the judge is not the finder of fact, “the need for disqualification decreases
by the extent to which the judge’s rulings in the case are limited to purely
legal matters,†since such rulings are in any case “subject to plenary
appellate review.†(Id. at pp. 104-105.)
Where the facts are undisputed, we review the issue de novo as a
question of law. (Briggs v. Superior Court, supra, 87 Cal.App.4th at p. 319.)
On the
record before us, Judge Mayhew conducted the trial with impeccable
impartiality. The sole instance of “lack
of capacity†cited by plaintiff constituted a trivial statement to the jury
that it should return at 9:00 a.m., when the court meant for the lawyers to
return at that time and the jury to return half an hour later. Judge Mayhew corrected himself in a good
natured way wholly appropriate to the circumstances. We have reviewed the transcript of the trial,
including the judge’s reference to the fact that he had a common cold, and find
nothing that, to a reasonable member of the public, would begin to raise doubts
concerning Judge Mayhew’s impartiality.
Disposition
The
judgment is affirmed. The parties shall
bear their own costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(5).)
_____________________
HILL, P. J.
WE CONCUR:
_____________________
LEVY, J.
_____________________
GOMES, J.
name="_ftn1" title="">[1] Code of Civil Procedure section 170.1,
subdivision (a)(6)(A)(iii), provides:
“[A judge shall be disqualified if] [a] person aware of the facts might
reasonably entertain a doubt that the judge would be able to be impartial.â€
