THE PEOPLE v. JESUS RODRIGUEZ LOPEZ

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. JESUS RODRIGUEZ LOPEZ, Defendant and Appellant. _ IN RE: JESUS RODRIGUEZ LOPEZ, on Habeas Corpus.

B218407

Decided: February 28, 2011

Petition for Writ of Habeas Corpus.   Writ denied.   Laurie Buchan Serafino, 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, Assistant Attorney General, Linda C. Johnson and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Jesus Rodriguez Lopez appeals the judgment entered following his conviction by jury of unlawful possession of a firearm, resisting an executive officer and resisting arrest, a misdemeanor.  (Pen.Code, §§ 12021, subd. (a)(1), 69, 148, subd. (a)(1).)   Lopez contends the trial court committed evidentiary error and asks this court to conduct an independent review of the in camera hearing on his Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531).   Finding no merit in Lopez's substantive contention and no error in the trial court's handling of the in camera hearing, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1.  The prosecution's evidence.

On February 7, 2008, at approximately 8:00 p.m., Los Angeles Police Officers Frank Garcia and Hugo Ayon were patrolling southbound on Coronado Street.   Garcia noticed a line of stationary cars in the northbound lane.   As they got closer, both officers saw Lopez standing in the middle of the northbound lane.   Garcia drove within a few feet of Lopez and said, “You can't be standing out here in the middle of the street.”   Lopez's eyes widened, he began to shift his body weight and he grabbed the area above his waist which suggested to Garcia he was attempting to prevent a weapon, either a gun or a knife, from falling from his waist band.   Lopez then ran north on Coronado Street.

Garcia and Ayon exited the patrol vehicle and chased Lopez.   As Garcia gained on Lopez, Lopez dropped a backpack and continued running.   Lopez went west on London Street for a short distance, then cut between parked cars.   Garcia saw Lopez's right hand move forward and then drop.   At that point, Garcia saw a gun.   Lopez looked back, causing Garcia to fear he was going to be shot.   However, Lopez threw the gun over a wall surrounding an apartment building.   Garcia yelled “gun” to alert Ayon, then collided with Lopez and they fell onto a grassy area near the sidewalk.

Ayon saw Garcia tackle Lopez.   Ayon drew his service revolver but then holstered it and went to the ground to assist Garcia.   Lopez resisted, flailed his arms and swung at the officers.   Lopez grazed Garcia with one punch and continued to struggle.   Garcia was concerned Lopez might have another weapon.   Both officers struck Lopez in the face to gain control of him.   Eventually, the officers subdued Lopez and handcuffed him.   Garcia estimated he and Ayon each punched Lopez twice.

When Los Angeles Police Officer Christopher Razo arrived at the scene, Lopez was handcuffed and was being held by Garcia and Ayon. Garcia told Razo where the gun had been discarded and Razo located a handgun at the location indicated by Garcia.   There were two rounds in the magazine and one in the chamber.

No usable fingerprints were found on the gun or the bullets in it.

Garcia indicated the arrest occurred in a neighborhood that is considered one of the most dangerous areas in Los Angeles.   An individual known as Drowsy was standing on the sidewalk near where the officers initially saw Lopez.   However, Drowsy was not involved in this incident.

At the start of Garcia's testimony, after he outlined his training and experience, Garcia testified he recently had won “multiple awards” including one from the captain of the Rampart Division for the “quality” of his arrests “in the last couple years” and that he had been selected for this award from three or four hundred other officers in the division.   Garcia later received an award for “beating out” the officers in his sector, which includes four divisions.   He “progressed” from there to “eventually become the overall L.A.P.D. officer,” selected from among nine or ten thousand officers.   Thereafter, he was selected as the top law enforcement officer in the county.   “And right now I've recently been nominated for the officer for California.”   When the prosecutor asked if that meant Garcia had been chosen as the top officer in the Los Angeles Police Department, Garcia responded affirmatively.

2. Defense evidence.

Lopez testified in his own defense.   He admitted he had been convicted of robbery in 1995 and a crime of moral turpitude in 2001.   On the day of his arrest, Lopez went outside to get a phone charger he had loaned a friend.   He saw a teenager named Drowsy who appeared to be on drugs.   Lopez spoke to Drowsy and formed the belief Drowsy was in possession of drugs or a gun.   As Lopez crossed the street, the police officers cut him off with the patrol vehicle and told him to get on the sidewalk.   Lopez said “fuck you,” and “flipped them off.”   Lopez saw the officers looking behind him at Drowsy.   When Drowsy ran, Garcia and Ayon got out of the patrol car to chase Drowsy.   Lopez raised his hands and got in Garcia's way.   Garcia struck Lopez with an object on the left side of his head and Ayon tried to grab Lopez.   Lopez began bleeding and ran.   The officers yelled at Lopez to get on the ground.   Garcia had a flashlight and both officers had their hands on their guns.   Lopez refused to get on the ground because he thought the officers were going to beat him.   Lopez was struck and regained consciousness in an ambulance.   Lopez denied that he had a gun.

3. Argument.

The prosecutor argued Lopez ran because he was a convicted felon and he knew he could not be found in possession of a gun.   The prosecutor noted Lopez had a motive to lie, he had a “track record” of dishonesty and the jury was permitted to consider that Lopez had been convicted of two crimes of moral turpitude in determining which of the two conflicting versions of the incident to believe.   The prosecutor concluded by asking the jury to “look at who has credibility for honesty and look at who doesn't, and that will make your decision very clear.”

Defense counsel indicated the question the jury faced was not who was more credible but “whether the prosecution erases all reasonable doubt.”   Defense counsel told the jury it could not convict Lopez because he had been convicted of felonies in the past.   Rather, the jury's job was “to decide if what the officer is telling you makes sense.”   Defense counsel referred to Officer Garcia's testimony about the officer of the year award as “self-serving information” that showed Garcia had “an interest in the outcome of this case.”

Defense counsel argued the officers reacted inappropriately by “chas[ing Lopez] down ․ and beat[ing] him.”   Further, the officers' version of the incident did not make sense in that it took place in one of the most dangerous areas in Los Angeles and, if the officers suspected Lopez had a gun as they had testified, they would have drawn their weapons at the start of the chase.   Instead, they chased Lopez with their weapons locked in the holsters.   Defense counsel suggested the officers fabricated the gun charge and urged the jury to find Lopez not guilty.

In closing argument, the prosecutor again referred to Lopez's prior convictions of moral turpitude, calling him a “proven liar.”   The prosecutor asserted Garcia properly was proud of having received an award as officer of the year and the third officer involved in the arrest, Officer Razo, recovered the handgun exactly where Garcia said it would be.   The prosecutor concluded by emphasizing the issue was “truth and credibility” and asked the jury to return verdicts of guilty.

4. Deliberations and verdicts.

The jury requested a reading of the testimony of Lopez and the officers “from the point of the meeting until the pursuit begins.”   The jury later requested a reading of the testimony of Lopez and the officers regarding the “fight” and the officers' attempt to apprehend Lopez.   Later that day, the jury requested a reading of the testimony of Ayon and Lopez regarding Garcia's tackling of Lopez and the ensuing “fight or struggle.”

The jury convicted Lopez of unlawful possession of a firearm and resisting an executive officer (Garcia) but found him not guilty of resisting an executive officer (Ayon) and convicted him of the lesser included offense of resisting arrest, a misdemeanor.

CONTENTIONS

Lopez contends the trial court erroneously permitted Officer Garcia to testify he had received awards from the Los Angeles Police Department.   In support of this contention, Lopez has filed a petition for writ of habeas corpus which we previously ordered to be considered concurrently with this appeal.   Lopez also asks this court to conduct an independent review of the in camera hearing on his Pitchess motion (Pitchess v. Superior Court, supra, 11 Cal.3d 531).

DISCUSSION

1.  No error in the admission of Officer Garcia's testimony.

a. Background.

Prior to trial, defense counsel noted that, at the first trial of this case which ended in a mistrial, the prosecutor offered to present evidence that Officer Garcia had received an award from the police department.   However, the trial court ordered the evidence excluded.   Defense counsel indicated a desire to renew the objection to the evidence.   The prosecutor responded Officer Garcia had received an award for “officer of the year,” and the award was relevant to the officer's experience and credibility.   The trial court indicated it would permit the officer to “mention that.”

Defense counsel then objected on hearsay grounds and because there had been no showing of the “qualifications for this award or the candidates.”   When the trial court overruled the objection, defense counsel requested “another source [for the information], other than Officer Garcia.”   The trial court indicated it was not going to require the People to present another witness and stated:  “He can mention that he was officer of the year of L.A.P.D. Let's go on.”   Defense counsel asked, “How do we know he's not making it up?”   The trial court responded, “It's not going to be a sideshow.   I'll permit that.   It may go to credibility.”   Defense counsel insisted she was in no position to challenge whether the officer was being truthful about the award.   The trial court indicated that, if there were an issue as to the genuineness of the award, the trial court would “deal with it.”   However, the trial court “presume[d the prosecutor] is telling me the truth, that he was an L.A.P.D. officer of the year.”

Thereafter, Officer Garcia testified he recently had won “multiple awards” from the Los Angeles Police Department.   Garcia indicated he had been honored by the captain of the Rampart Division for the “quality” of his arrests, he later attended an event where he received an award for “beating out” the officers in four divisions, and he “progressed” from there to “eventually become the overall L.A.P.D. officer,” selected from among nine or ten thousand officers.

b. Lopez's appellate contentions.

Lopez contends Officer Garcia should not have been permitted to testify that he received awards from the Los Angeles Police Department.   Lopez asserts defense counsel's objection on foundational grounds was well taken, the evidence was more prejudicial than probative and its admission violated his right to due process.

Lopez argues the prosecutor, as the proponent of the evidence, had the burden of producing foundational evidence sufficient to support a finding the award existed.  (Evid.Code, § 403, subd. (a)(1).)   Lopez claims Garcia's testimony alone was insufficient for this purpose, citing People v. Zismer (1969) 275 Cal.App.2d 660;  People v. Jones (2003) 112 Cal.App.4th 341, 344, Allen v. Leonard (1969) 270 Cal.App.2d 209, 219-220, and In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1448-1452.

Lopez further contends the evidence should have been excluded under Evidence Code section 352 as more prejudicial than probative.1  He argues that, because the evidence was not offered to prove an element of the People's case, the probative value of the evidence was weak.   Further, it was likely to inflame the jury.  (People v. Branch (2001) 91 Cal.App.4th 274, 286.)   Finally, according to Lopez, the evidence was highly prejudicial in that it was intended to make the jurors believe the highly esteemed officer rather than the convicted felon.

Lopez argues the case was close in that no fingerprints were found on the gun or the bullets it contained, there were discrepancies in the testimony of the officers and neither officer suffered any appreciable injury.   Further, the jury requested three different readings of the testimony of the officers and Lopez regarding the initial encounter and the ensuing fight.

Additionally, the prosecutor referred to credibility throughout his argument and noted only one of the “two extremely different versions of what happened on that day” could be truthful.   The prosecutor closed by telling the jury that case “hinges on credibility.   Who has it and who doesn't.”

Lopez concludes unsubstantiated evidence indicating Garcia had won numerous awards rendered the trial fundamentally unfair and tipped the balance in the credibility dispute in favor of the prosecution by permitting the jury to hear evidence indicating Garcia was the officer of the year which, in turn, suggested he was telling the truth.

c. No error in the admission of the evidence.

“ ‘Relevant evidence’ “ includes “evidence relevant to the credibility of a witness․”  (Evid.Code, § 210.)   In determining the credibility of a witness, the jury may consider “any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing․”  (Evid.Code, § 780.)

Prior to 1982, Evidence Code section 790 precluded admission of “[e]vidence of the good character of a witness ․ to support his credibility unless evidence of his bad character has been admitted for the purpose of attacking his credibility.”   However, the addition of section 28, subdivision (f)(2), the “Right to Truth in Evidence” provision, to article I of the California Constitution effected a pro tanto repeal of Evidence Code section 790 in criminal cases, except to the extent that exclusion is ordered pursuant to Evidence Code section 352.  (People v. Harris (1989) 47 Cal.3d 1047, 1081-1082;  People v. Taylor (1986) 180 Cal.App.3d 622, 631-632.)

Thus, the evidence was admissible to support Officer Garcia's credibility.   Further, the trial court's comments at the time it overruled defense counsel's objection to the evidence indicate the trial court weighed the probative value of the evidence against its prejudicial effect and the possibility it might result in undue consumption of time, thereby complying with its obligation under Evidence Code section 352.   Specifically, the trial court indicated it would permit Garcia to mention he received an award from the Los Angeles Police Department but it would not permit the trial to be turned into a “sideshow.”

Lopez's argument the People failed to present an adequate foundation for the evidence is meritless.   The cases cited by Lopez relate either to physical evidence or are simply inapposite.  People v. Zismer, supra, 275 Cal.App.2d 660, addressed the admission of photographs of footprints to prove the defendant had been outside a burglarized home.  Zismer concluded the photographs were inadmissible without some foundational evidence that would permit an inference they corresponded to the defendant's shoes, noting “ ‘[i]dentity-inference’ “ from comparison of footprints “ ‘is apt to be especially weak.’  “ (Id. at p. 665.)   Zismer observed that “ ‘popular looseness of thought is apt to overestimate [the] probative value’ “ of apparent similarities between the imprint and the shoes.  [Citation.]  Foundational proof, with opportunity for cross-examination, assures a fair evaluation of the evidence by the jury.”  (Id. at p. 668.)

Here, unlike a photograph of a footprint which requires expert foundational testimony before it can be used as proof the defendant made the footprint, Officer Garcia's testimony established an adequate foundation for his receipt of awards from the Los Angeles Police Department.   Further, Lopez had an opportunity to cross-examine Garcia about the awards but declined to do so.   The fact Garcia's testimony was excluded at the first trial does not mean the trial court erroneously admitted the evidence at the instant trial.   As noted above, no statute required exclusion of the evidence and the trial court weighed the probative value of the evidence against its prejudicial effect and found it admissible.  “Unless the dangers of undue prejudice, confusion, or time consumption “ ‘substantially outweigh’ “ the probative value of relevant evidence, a section 352 objection should fail.”  (People v. Doolin (2009) 45 Cal.4th 390, 439.)   Further, a trial court's exercise of discretion under Evidence Code section 352 “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice․'  [Citations.]”  (People v. Hartsch (2010) 49 Cal.4th 472, 497.)   Here, no abuse of the trial court's discretion appears.

The other cases cited by Lopez similarly do not assist his argument.   In People v. Jones, supra, 112 Cal.App.4th 341, a defendant charged with cultivation of marijuana testified at a pretrial hearing that his physician told him marijuana “might help” his migraine headaches and he should “go ahead” and try it.  Jones held this testimony sufficient to permit the defendant to present a defense under the Compassionate Use Act of 1996.  (Health & Saf.Code, § 11362.5.) Allen v. Leonard, supra, 270 Cal.App.2d 209, held a transcription of a secret recording of the defendant properly was excluded where the plaintiff failed to show the alleged admissions were recorded on a machine that accurately reproduced the conversation.   In In re Glorianna K., supra, 125 Cal.App.4th 1443, the issue was whether a social service agency had complied with the provisions of the Indian Child Welfare Act. The agency asked the Court of Appeal to take additional evidence that assertedly established compliance.  In re Glorianna K. found the notifications in the record insufficient and declined to take additional evidence on appeal.

Nothing in any of these rulings suggests Officer Garcia was incompetent to testify he received awards from the Los Angeles Police Department.

Finally, the record indicates the prosecutor did not make unfair use of the evidence in argument.   In fact, the prosecutor mentioned the award only in response to defense counsel's assertion Garcia's “self-serving” testimony about the officer of the year award showed Garcia had an interest in the outcome of the case and that he knew the officers' version of the circumstances leading up to the arrest did not make sense.

In sum, the trial court committed no reversible error in permitting Garcia to testify he had received an award from the Los Angeles Police Department and the prosecutor did not make unfair use of the evidence.

d. Lopez's writ contentions fail.

In the petition for writ of habeas corpus, Lopez disputes Garcia's assertion he won “multiple awards” and claims Garcia won a single award presented at the Los Angeles County Annual Installation and Awards Banquet of the Peace Officers Association of Los Angeles County on April 30, 2009, for “Excellence in Field Operations, Patrol.”   The award refers to Garcia having “an exemplary work ethic” and arresting suspects “without a single use of force incident.” 2  Thus, according to Lopez, Garcia did not receive an award for “Officer of the Year” as he claimed at trial.

Lopez further asserts that portion of the award which states Garcia has effected numerous arrests without use of force is belied by the injuries Lopez sustained during his arrest on February 7, 2008.   Also, a Los Angeles Police Department news release dated December 22, 2004, indicates Garcia and another officer responded to a domestic violence call in the course of which they confronted an armed suspect who was pronounced dead at the scene as the result of an officer involved shooting.   Thus, Garcia has been involved in forceful arrests on at least two occasions.

Appointed appellate counsel's declaration details how counsel located the award of April 19, 2009, for “Excellence in Field Operations, Patrol” and the news release dated December 22, 2004, on the Internet.   Appointed appellate counsel further declares that, upon reviewing the public defender's file in this case, counsel learned that numerous citizen complaints for harassment and excessive force had been filed against Garcia.   Lopez claims this newly discovered evidence undermines the entire structure of the prosecution's case and warrants reversal.

The standard for determining whether to afford habeas corpus relief to a criminal defendant on the ground of newly discovered evidence is well settled.   A “ ‘criminal judgment may be collaterally attacked on habeas corpus on the basis of newly discovered evidence if such evidence casts “fundamental doubt on the accuracy and reliability of the proceedings.   At the guilt phase, such evidence, if credited, must undermine the entire prosecution case and point unerringly to innocence or reduced culpability.  [Citations.]”  [Citation.]   “[N]ewly discovered evidence does not warrant relief unless it is of such character ‘as will completely undermine the entire structure of the case upon which the prosecution was based.’  “ [Citations.]'  [Citations.]   If ‘a reasonable jury could have rejected’ the evidence presented, a petitioner has not satisfied his burden.  [Citation.]”  (In re Lawley (2008) 42 Cal.4th 1231, 1239.)  “It is not sufficient that the evidence might have weakened the prosecution case or presented a more difficult question for the judge or jury.  [Citations.]”  [Citation.]'  [Citation.]”  (In re Hardy (2007) 41 Cal.4th 977, 1017.)

Here, all the evidence presented in the petition for writ of habeas corpus was found by appointed appellate counsel either in the public defender's file or on the Internet.   The same evidence would have been available at the time of trial.   Thus, this evidence cannot be considered newly discovered.

Putting that aside, the newly discovered evidence does not contradict the award of April 19, 2009, which Garcia received for arresting “numerous suspects who were armed with guns and [bringing] them in without a single use of force incident.”   Obviously, some force is required to arrest a suspect.   Thus, Garcia received the award for arresting numerous armed suspects without a single incident of excessive force.   Although Lopez was punched in the course of the arrest, Lopez initiated the struggle after he discarded a handgun and Garcia reasonably could suspect Lopez had another weapon.   Punching a resisting suspect under these circumstances does not constitute excessive force.   Additionally, the news release of December 22, 2004, regarding the domestic violence incident does not indicate which of the two officers at the scene shot the suspect.   Thus, the newly discovered evidence did not undermine the award Garcia received.

In any event, the newly discovered evidence went to a collateral matter, Officer Garcia's credibility, and the case law cited above clearly establishes that attacks upon such collateral matters are insufficient to warrant reversal of a conviction.   We therefore deny the petition for writ of habeas corpus.

2. The trial court properly conducted the in camera hearing on Lopez's Pitchess motion.

Prior to trial, the trial court granted Lopez's request for Pitchess discovery (Pitchess v. Superior Court, supra, 11 Cal.3d 531) of the personnel records of Officers Garcia and Ayon. The trial court ordered the custodian of records of the Los Angeles Police Department to produce all complaints alleging these officers engaged in fabrication of evidence, making false statements, dishonesty or excessive force.   On August 11, 2008, the trial court conducted an in camera hearing and ordered the custodian to disclose the name, address and telephone number of numerous complainants.

In the opening brief, Lopez asked this court to conduct an independent review of the in camera hearing to determine whether the trial court provided all discoverable material to the defense.  (See People v. Mooc (2001) 26 Cal.4th 1216.)

We have reviewed the reporter's transcript of the in camera hearing and conclude the trial court adhered to the procedure outlined in People v. Mooc, supra, 26 Cal.4th at pp. 1228-1229, and ordered disclosure of all relevant complainants.

DISPOSITION

The judgment is affirmed.   The petition for writ of habeas corpus is denied.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. Evidence Code section 352 states:  “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.”.  FN1. Evidence Code section 352 states:  “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.”

FN2. In full, the award states Officer Garcia “has an exemplary work ethic that is reflected in his exceptional success both in the number and quality of arrests and his leading role in the division for radio calls and observation activities.   His work helped convict four gang members of murder, and he has arrested many others for attempted murder.   He has arrested numerous suspects who were armed with guns and brought them in without a single use of force incident.   His work ethic is unparalleled, as are his skills.”.  FN2. In full, the award states Officer Garcia “has an exemplary work ethic that is reflected in his exceptional success both in the number and quality of arrests and his leading role in the division for radio calls and observation activities.   His work helped convict four gang members of murder, and he has arrested many others for attempted murder.   He has arrested numerous suspects who were armed with guns and brought them in without a single use of force incident.   His work ethic is unparalleled, as are his skills.”

CROSKEY, J. ALDRICH, J.

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