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Court of Appeal, Third District, California.

The PEOPLE, Plaintiff and Appellant, v. Mark NORMAND, Defendant and Respondent.

Crim. C001680.

Decided: August 27, 1987

John K. Van de Kamp, Atty. Gen., Steve White, Chief Asst. Atty. Gen., Ward A. Campbell, Deputy Atty. Gen., for plaintiff and appellant. Susan Townsend, under appointment by the Court of Appeal, for defendant and respondent.

An information charged defendant with two counts of battery upon a peace officer.  (Pen.Code, §§ 242/243242243, subd. (c).)  Defendant's motion to dismiss the information was granted.  (Pen.Code, § 995.)   The People appeal.   We shall reverse.

At the preliminary hearing, Officer Shelley testified on direct examination that he and Officer Kereazis were running a warrant check on a suspected drug dealer when defendant approached and asked what was going on.   Shelley cautioned defendant not to interfere and ordered him to leave or he would be arrested.   Defendant appeared to be excited.   He moved closer to the officers and renewed his inquiry.   Shelley stepped toward defendant and reached to grasp him by the shoulder.   Defendant hit Shelley in the jaw.   Kereazis pulled defendant to the ground.   Shelley reached for defendant's wrist but defendant kicked him in the face and arm.   Defendant struck Kereazis and attempted to gouge his eye.   Defendant was finally subdued when Shelley struck him with a baton.

On cross-examination, counsel for defendant sought to question Shelley about occasions when Shelley allegedly used excessive force in effecting an arrest.   Responding to the People's objection, counsel argued such evidence was relevant to a claim of self-defense.   The magistrate sustained the objection because no evidence of self-defense had been presented and the officer's past conduct was therefore irrelevant.   The magistrate stated the excluded cross-examination would be permitted if there was evidence of self-defense.   No evidence of self-defense was presented.

The superior court granted defendant's motion to dismiss the information on the grounds the prohibited cross-examination was relevant to Officer Shelley's bias against defendant and similarly situated arrestees, and that the magistrate's ruling deprived defendant of a substantial right.

 Assuming the prohibited cross-examination would tend to show the bias of the witness, counsel's response to the magistrate's express invitation to explain its relevance focused exclusively on the issue of self-defense.   The theory of bias was not presented to the magistrate.   Accordingly, the trial court erred in granting defendant's motion on that ground.  (People v. Coleman (1970) 8 Cal.App.3d 722, 729–731, 87 Cal.Rptr. 554;  Evid.   Code, § 354.)

 Moreover, the magistrate properly required defendant to make a showing of self-defense before pursuing the forbidden line of questioning.   Evidence of specific instances of a victim's past conduct relevant only as tending to prove character is inadmissible to attack credibility (Evid.Code, § 787), but the evidence may be used to prove conduct of the victim in conformity with such character.  (Evid.Code, § 1103, subd. (a)(1).)   Consequently, in a prosecution for assault where self-defense is raised, evidence of the victim's violent character shown through past conduct is admissible to show the victim was more likely the aggressor.  (People v. Shoemaker (1982) 135 Cal.App.3d 442, 446–447, 185 Cal.Rptr. 370;  People v. Rowland (1968) 262 Cal.App.2d 790, 797, 69 Cal.Rptr. 269;  People v. Smith (1967) 249 Cal.App.2d 395, 404–405, 57 Cal.Rptr. 508;  1 Witkin, Cal.Evidence (3d ed. 1986) Circumstantial Evidence, § 340, pp. 309–310.)   However, without some showing of defendant's state of mind to support a claim of self-defense, evidence of the victim's past violent conduct is irrelevant and should be excluded.  (Evid.Code, § 350;  Smith, supra, 249 Cal.App.2d at pp. 404–405, 57 Cal.Rptr. 508.)

Defendant cites Lemelle v. Superior Court (1978) 77 Cal.App.3d 148, 163, 143 Cal.Rptr. 450, for the broad proposition that evidence of a police officer's past conduct toward arrestees is admissible when the defendant is accused of battery on a peace officer.  Lemelle, however, dealt with a request for discovery, not the admission of evidence.  (Id., at p. 154, 143 Cal.Rptr. 450.)   Moreover, Lemelle relied upon Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537, 113 Cal.Rptr. 897, 522 P.2d 305, as authority for the stated proposition.  Pitchess, however, is not so broad.   It states such evidence is relevant and admissible to support the theory of self-defense.  (Ibid.)

 The record is devoid of any evidence of self-defense.   The only testimony presented established defendant persisted in interfering with official police business despite warnings to stop or be arrested.   When officer Shelley took a step toward defendant with an outstretched arm, defendant struck him in the face and kicked him.   Nothing in the record establishes Shelley used excessive force or defendant had an honest and reasonable belief in apparent peril and the need for self-defense.  (See 1 Witkin, Cal.Crimes (1963), Self-Defense, § 158, p. 151.)

The magistrate properly excluded evidence of Shelley's prior conduct.   The judgment dismissing the information is reversed.

PUGLIA, Presiding Justice.

BLEASE and SPARKS, JJ., concur.