People v. Sibrian

Filed 9/7/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

A143369

v.

HENRY SIBRIAN, (Contra Costa County

Super. Ct. No. 51408608)

Defendant and Appellant.

INTRODUCTION

Defendant Henry Sibrian appeals from his conviction of resisting an officer in

violation of Penal Code section 69.1 He contends the trial court erred, first, in allowing

expert testimony on excessive force and, second, in precluding defense counsel from

questioning one of the officers involved in his arrest about a pending civil lawsuit against

the officer. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after 1:00 a.m. on October 21, 2013, Sheriff’s Sergeant Joseph Buford

observed defendant commit various traffic violations. As Buford turned on the flashing

lights of his patrol car to initiate a traffic stop, defendant pulled over on his own because

he had arrived at his house. Buford ordered defendant to get out of his car, but he

refused. Additional deputies arrived, and defendant was wrestled out of the car and

detained. During the struggle, defendant and two deputies were injured. The district

attorney charged defendant with a single count of resisting an executive officer by the use

of force or violence. (§ 69.)

1

All further statutory references are to the Penal Code unless otherwise indicated.

1

Sergeant Buford testified at trial that he first noticed defendant’s car when he

heard squealing tires. He followed the car about a mile as it ran two red lights and a stop

sign and then pulled over and came to a stop on Sheryl Drive in San Pablo. Buford knew

the neighborhood, as he had responded to “homicides, domestic violence, stolen vehicles,

robberies, fights, [and] drunks” in the area. He drew his firearm at low ready2 and

ordered defendant to show his hands. Defendant stuck both hands out the driver’s side

window, along with the upper half of his body. Defendant was “slurring and rambling.”

Buford could not understand him and believed he might be intoxicated.

Buford called for assistance, and Deputy Mitch Moschetti arrived almost

immediately. Together, they approached defendant’s car, and Buford opened the driver’s

side door. He ordered defendant “at least five or six times” to get out, but he refused.

Defendant smelled of alcohol. He continued to ramble and was “gripping the steering

wheel with two hands.” Both officers tried to pull defendant out of the car, but he “was

flailing his body.” Although he suspected defendant was intoxicated, Buford did not

conduct a field sobriety test and did not obtain a blood sample.

Deputy Moschetti testified he struggled with defendant for a few seconds, while

telling him to stop resisting and get out of the car. Then he “delivered a closed fist

strike” to defendant’s right eye. He again tried to move defendant, but defendant grabbed

Moschetti’s arm and moved it “very forcefully.” Moschetti punched him in the right eye

a second time.

Moschetti retrieved his Taser and told defendant to stop resisting or he would be

tased. Defendant grabbed the Taser and tried to pull it from Moschetti’s hand. Moschetti

tased him in the stomach. By this time, another deputy, Michael Santos, had arrived, and

he was able to pull defendant out of the car. Defendant’s face and stomach hit the

asphalt, and he landed flat on his stomach.

2

Holding a firearm at “low ready” means holding a firearm in both hands

“pointed in a downward direction, so it’s not pointed at any one person, but it’s ready in

case you have to deploy it.”

2

Now on the ground, defendant kept his right arm tucked underneath his stomach

and kicked his legs. Moschetti told him to stop resisting and put his hands behind his

back. After unsuccessfully trying to pull defendant’s right arm out from under his body,

Moschetti “delivered a closed fist strike to his right rib cage.” Defendant released his

right arm, and Moschetti placed him in handcuffs. Defendant became “verbally

aggressive” and spat blood on Santos.

Moschetti suffered cuts on his hands and bruises on his shins. Defendant also

appeared to be injured. There was blood around his right eye and blood from his nose,

and he had injuries on the left side of his head and on his right cheek.

Deputy Santos testified that when he arrived at the scene defendant appeared

“aggressive” and was “actively resisting.” Defendant scratched Santos with his

fingernails, inflicting a four inch gash on his forearm. After Santos pulled him from the

car to the ground, defendant continued to struggle and kick. Another deputy arrived, and

Santos, Moschetti, and Trinidad eventually got defendant under control and handcuffed.

Defendant continued to be uncooperative—he yelled, failed to follow instructions, and

spat a mouthful of blood on Santos’s left arm. Santos suffered an open wound on his left

hand and wounds on his right hand and arm.

The prosecution also called George Driscoll, a senior inspector with the district

attorney’s office, whom the trial court permitted to testify as an expert “in the area of law

enforcement training, law enforcement tactics, and law enforcement procedures regarding

the use of force.” Driscoll had 34 years’ experience in law enforcement, and has trained

law enforcement officers in Fourth Amendment issues and use of force, including

specific defensive tactics and methods to overcome resistance. He testified law

enforcement officers have a responsibility to enforce the law, and when “they encounter

resistance, they’re not expected to retreat, they’re expected to ensure compliance.”

The prosecutor presented a hypothetical scenario of an officer stopping a car for

numerous traffic violations at 1:00 a.m. in a medium to high crime area. The prosecutor

then questioned Driscoll about hypothetical officer conduct tracking the version of events

described by Buford, Moschetti, and Santos. Driscoll opined the officers’ conduct in the

3

hypothetical scenario would not be inconsistent “with the industry standard.” For

example, Driscoll testified when a suspect’s unlawful driving threatens the public, an

officer is expected to stop that threat by having the suspect stop and step out of the car. If

the suspect refuses to leave his car, the officer is at a disadvantage because the suspect

has “complete access to everything in the car, and . . . maneuverability inside the car.”

There could be a weapon in the car, or the suspect could start the car and flee. Driscoll

opined if the suspect grips his steering wheel and refuses to get out, officers should

attempt to grab his arm to break his grip and use a distraction strike only if they are

unable to break the suspect’s grip on the steering wheel. He explained officers

oftentimes have chemical agents and Tasers “as part of their tool system on their belt.”

The use of a chemical spray “probably wouldn’t be a good choice for the officers to

select” in the circumstances of the hypothetical because dispersal of the spray in the small

area of the suspect’s car could impair the officers.3 But if two distraction strikes are

ineffective in removing the suspect’s hands from the steering wheel, Driscoll opined use

of a Taser would not be inconsistent with industry standard.

On cross-examination, Driscoll stated he had testified 12 times as an expert in the

use of force by law enforcement officers. In each case, he concluded the use of force was

consistent with industry standards. Revisiting the hypothetical scenario, Driscoll opined

that if the first officer were to point his gun at the head of the suspect, that would not be

consistent with industry standards. He was aware of Contra Costa County’s policy that

Tasers should not routinely be used when subjects are demonstrating passive resistance or

are unresponsive.

Israel Herrera, defendant’s landlord, testified for the defense. He saw defendant

parked outside his house, with police cars behind him. An officer pointed a weapon

toward defendant and told Herrera to stay back. Two more officers parked in front of the

house. They started to hit defendant inside his car. Herrera never heard the officers

3

Driscoll also noted the chemical agent may have a decreased effect on a person

under the influence of alcohol.

4

telling defendant to get out of the car. “They pulled him out of the car, he was on the

floor and then he was handcuffed.”

Defendant also testified. Around 10:30 p.m. the night of his arrest, he left work

and went to a friend’s house in Berkeley. He “might have had a couple of drinks.”

(Later, he testified he had one 22-ounce beer.) Around 12:30 a.m., he left his friend’s

house and drove home. He did not run any red lights or stop signs, and did not notice a

police officer following him. As soon as he parked, he saw police lights. An officer

approached his window, pointed a gun at his face, and ordered him to put out his hands,

which he did. Defendant “thought he was going to shoot.” Another officer arrived, and

the two officers forced him out of his car. The officers never ordered him to exit the car.

After he was handcuffed, he felt “a whole bunch of punches just coming in different

directions, right, left, temple, jaw, the back of [his] head.” He felt a knee hit his eye, and

he started yelling “police brutality.” Blood filled his mouth, and he spat it out because he

could not breathe. He did not intend to get blood on anyone. Then he felt a burning

sensation in his chest from a Taser. He was tased three times and taken to jail. From

there, he was taken to a hospital, where he stayed from 2:00 a.m. to 5:30 p.m.

Photographs showed marks from the Taser on defendant’s chest, stomach, and shoulder.

Defendant denied holding on to the steering wheel, denied refusing to exit his car,

and denied resisting the officers at any time. “It was like lamb to a slaughter. I gave

myself completely to them and— [¶] . . . [¶] I did every order they gave me.” He plans

to file a civil lawsuit against Deputy Moschetti.

The jury found defendant guilty as charged. The trial court placed him on formal

felony probation for three years, conditioned on serving 180 days in county jail.

DISCUSSION

A. Allowing Expert Testimony on the Use of Force

Defendant maintains the issue of whether the officers used excessive force was not

a proper subject for expert testimony under Evidence Code section 801. Alternatively, he

contends the trial court should have excluded the testimony under Evidence Code

section 352 as unduly prejudicial.

5

Evidence Code section 801 allows a qualified expert to testify on matters

“[r]elated to a subject that is sufficiently beyond common experience that the opinion of

an expert would assist the trier of fact.” (Evid. Code, § 801, subd. (a); People v. Brown

(2004) 33 Cal.4th 892, 900 [16 Cal.Rptr.3d 447, 94 P.3d 574].) “Expert opinion is not

admissible,” however, “if it consists of inferences and conclusions which can be drawn as

easily and intelligently by the trier of facts as by the witness.” (People v. Torres (1995)

33 Cal.App.4th 37, 45 [39 Cal.Rptr.2d 103].) We review a decision to admit expert

opinion testimony for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179,

1222 [57 Cal.Rptr.3d 543, 156 P.3d 1015] (Prince).)

Defendant was charged with “knowingly resist[ing], by the use of force or

violence, [an executive] officer, in the performance of his [or her] duty” in violation of

section 69. Under this penal code provision, an officer must be acting lawfully when the

resistance occurs. (In re Manuel G. (1997) 16 Cal.4th 805, 814, 816 [66 Cal.Rptr.2d 701,

941 P.2d 880].) An officer using excessive force is not acting lawfully. (People v.

Olguin (1981) 119 Cal.App.3d 39, 45 [173 Cal.Rptr. 663]; People v. White (1980)

101 Cal.App.3d 161, 167 [161 Cal.Rptr. 541].) Thus, the prosecution was required to

prove beyond a reasonable doubt that the officers acted lawfully, and the jury was

instructed “[a] peace officer is not lawfully performing his or her duties if he or she is . . .

using unreasonable or excessive force in his or her duties.” (Italics added.)

In response to defendant’s motion to exclude Driscoll’s testimony, the trial court

held an Evidence Code section 402 hearing. Driscoll testified law enforcement officers

are required to receive training on the use of force, and the purpose of the training is to

enhance the safety of officers, suspects, and the public. An officer’s prior “common life

experience regarding combative or forceful situations” is not sufficient because a “law

enforcement officer has a significant greater responsibility, duty, obligation, regarding

the enforcement of the laws” than a lay person. Driscoll explained an officer is expected

to overcome a person’s noncompliance with lawful commands, and officers receive

specialized training to recognize resistance because they “have to try and minimize the

escalation of resistance.” “[T]heir training will allow them to recognize this, and then use

6

appropriate means to overcome that resistance.” He stated officers are taught to escalate

their level of force if their tactics are not effective in overcoming resistance. Driscoll

gave the example of a suspect who is refusing to follow commands and is on the ground

with his hands underneath his body. An officer would recognize the inability to see the

suspect’s hands is a safety issue, and “would then use greater force to extract the hands.”

At this point in Driscoll’s testimony, the trial court observed it appeared to be

helpful and to cover matters beyond the common experience of an ordinary juror.

“[W]hat I’ve heard so far, there are many things here that a normal juror does not

understand. The principles for escalation of force, for example. That’s nothing that’s

naturally understood by a juror. [¶] . . . Inspector Driscoll gave the example of the

suspect who is forced to the ground and was lying on top of his hands. And so because

the officer doesn’t know what’s in his hands, the officer, according to Inspector Driscoll,

has more latitude in what he can do. I’m not sure that’s something that is naturally

known to a jury. [¶] I think there are many points like that. So I think subject to further

testimony in cross-examination, this information . . . is something that would be helpful

to a jury.

After further testimony by Driscoll, the court heard argument by the parties. It

then ruled Driscoll could testify as an expert “because the issues of incremental use of

violence and the kind of force that can be used . . . those are not issues that a jury

understands without testimony from an expert.” However, Driscoll could not testify that

the officers’ conduct was either reasonable or constituted excessive force—it would be

“up to the jury to decide whether the use of force is reasonable.”

Defendant contends Driscoll’s testimony “was unnecessary” because “the jury

was perfectly capable of evaluating the reasonableness of the force used against

[defendant] based on the evidence presented at trial.” Necessity, however, is not the

measure for the admissibility of expert evidence. “[E]xperts may testify even when

jurors are not ‘wholly ignorant’ about the subject of the testimony. [Citation.] ‘[I]f that

[total ignorance] were the test, little expert opinion testimony would ever be heard.’

[Citation.] [¶] Rather, the pertinent question is whether, even if jurors have some

7

knowledge of the subject matter, expert opinion testimony would assist the jury.”

(Prince, supra, 40 Cal.4th at p. 1222.)

Here, one of the key issues for the jury was whether the officers acted lawfully in

the way in which they detained and arrested defendant. Driscoll’s testimony could be of

some assistance because, as the trial court observed, jurors would not necessarily know

about the need for escalating force in response to a noncompliant suspect or the potential

continued danger posed by a suspect after he has been wrestled to the ground. Driscoll

also explained the risks of allowing a noncompliant suspect to remain in his car and why

the officers may have decided not to use a chemical agent.

Expert testimony “ ‘will be excluded only when it would add nothing at all to the

jury’s common fund of information, i.e., when “the subject of inquiry is one of such

common knowledge that men of ordinary education could reach a conclusion as

intelligently as the witness” ’ [citation].” (People v. McAlpin (1991) 53 Cal.3d 1289,

1300 [283 Cal.Rptr.2d 382, 812 P.2d 563], italics added.) Because we cannot say

Driscoll’s testimony “would add nothing at all to the jury’s common fund of

information,” we also cannot say the trial court abused its discretion in deeming it

admissible. (Ibid.; People v. Farnam (2002) 28 Cal.4th 107, 162–163 [121 Cal.Rtpr.2d

106, 47 P.3d 988].)

Defendant’s reliance on Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755

[143 Cal.Rptr.3d 793] (Allgoewer), a civil excessive force case, is misplaced. In

Allgoewer, the trial court granted the defendants’ nonsuit motion because the plaintiff had

not presented any expert testimony on “ ‘what force a reasonable law enforcement officer

would have used under the same or similar circumstances.’ ” (Id. at p. 757.) The Court

of Appeal reversed, concluding, as have other courts, that there is no per se requirement

that a plaintiff must present expert testimony to prove an excessive force claim. (Id. at

pp. 763–764.) The appellate court recognized that the “reasonableness” standard

applicable to such claims “ ‘must be judged from the perspective of a reasonable officer

on the scene, rather than with the 20/20 vision of hindsight.’ ” (Id. at p. 762.) And since

“ ‘the standard is not defined by the generic—a reasonable person—but rather by the

8

specific—a reasonable officer—it is more likely that [the] line between common and

specialized knowledge has been crossed.’ ” (Id. at p. 763, quoting Kopf v. Skyrm (4th

Cir. 1993) 993 F.2d 374, 378 (Kopf).) However, “ ‘a blanket rule that expert testimony is

generally admissible in excessive force cases would be just as wrong as a blanket rule

that it is not.’ ” (Allgoewer, at p. 763.) “ ‘The facts of every case will determine whether

expert testimony would assist the jury.’ ” (Ibid.)

Where the force used consists of only bare hands, the court suggested “ ‘expert

testimony might not be helpful.’ ” (Allgoewer, supra, 207 Cal.App.4th at p. 763.)

However, “[a]dd handcuffs, a gun, a slapjack, mace, or some other tool, and the jury may

start to ask itself: what is mace? what is an officer’s training on using a gun?” (Ibid.)

“ ‘Answering these questions may often be assisted by expert testimony.’ ” 4 (Allgoewer,

at p. 763.)

The Allgoewer Court went on to conclude that, on the record before it, a nonsuit

was not warranted. While the defendant officers argued expert testimony was necessary

because the case “ ‘involved specialized training and experience regarding police

practices and procedures,’ ” “beyond that vague assertion, defendants offer no

explanation of why or how that was so.” (Allgoewer, supra, 207 Cal.App.4th at p. 765.)

In short, Allgoewer holds the admission of expert evidence on police training and

practices must be made on a case-by-case basis and, in some civil excessive force cases,

as in the case before it, the plaintiff need not present expert testimony to prove his or her

case. Allgoewer does not hold a plaintiff cannot present such testimony. In fact, it

recognizes that, depending on the circumstances, such evidence may be proper. It is,

thus, no surprise that expert testimony on the use of force has often been admitted in

California excessive force cases without objection. (See, e.g., Mendoza v. City of West

Covina (2012) 206 Cal.App.4th 702, 710 [141 Cal.Rptr.3d 553]; Lopez v. City of Los

Angeles (2011) 196 Cal.App.4th 675, 682–683 [126 Cal.Rptr.3d 706]; Munoz v. City of

4

In Kopf, quoted extensively in Allgoewer, the circuit court concluded the district

court abused of discretion in excluding the plaintiff’s proffered experts on law

enforcement use of dogs and slapjacks. (Kopf, supra, 993 F.2d at pp. 378–379.)

9

Union City (2004) 120 Cal.App.4th 1077, 1090–1093 [16 Cal.Rptr.3d 521], disapproved

on other grounds by Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639, fn. 1

[160 Cal.Rptr.3d 684, 305 P.3d 252].)

The instant criminal case presents a different issue than that in Allgoewer—did the

trial court abuse its discretion in allowing such evidence in this criminal prosecution?

Moreover, Allgoewer suggests it did not, since more was involved here than force

“ ‘reduced to its most primitive form—bare hands.’ ” (Allgoewer, supra,

207 Cal.App.4th at p. 763, quoting Kopf, supra, 993 F.2d at p. 379.) In this case, the

officers were dealing with a suspected drunk driver who refused to get out of his car, late

at night and in a relatively high crime area. The officers used not only their hands, but

also a Taser and handcuffs, and they chose not to use a chemical agent. Driscoll’s

testimony provided relevant context and a basis for evaluating the officers’ handling

techniques and choice of assistive tools.

Defendant alternatively maintains that, even if Driscoll’s expert testimony had

some relevance and was admissible under Evidence Code section 801, it nevertheless

should have been excluded under Evidence Code section 352. He contends the testimony

was unduly prejudicial because Driscoll “convey[ed] his belief in the credibility of the

officers’ testimony.” This overstates Driscoll’s testimony. When presented with a

hypothetical scenario tracking the officers’ testimony, Driscoll gave his opinion on the

use of force, but he did not suggest either of the arresting officers’ version of events was

correct or that the officers were credible and defendant was not. Nor, contrary to

defendant’s claim, did Driscoll refuse “to answer questions based on hypotheticals that

contradicted the prosecution’s theory.” On cross-examination, when asked a different

hypothetical, Driscoll opined an officer pointing a firearm at a suspect’s head (as

defendant testified Sergeant Buford did) would not be consistent with industry standards.

Defense counsel then asked if “the officer is able to the see the suspect’s hands, and

weapons at that time are not a concern,” would that change Driscoll’s opinion? (Italics

added.) Driscoll responded “By limiting the factors as you just did, that’s inconsistent

with all of the factors that the officer is forced to consider.” This was not a refusal to

10

answer a question based on a hypothetical scenario different from the prosecution’s

theory. Rather, Driscoll was pointing out that an officer could not simply put aside

concerns about weapons in the hypothetical scenario described.

Defendant also cites to Thompson v. City of Chicago (7th Cir. 2006) 472 F.3d 444

(Thompson), another civil excessive force case, in which the district court excluded

proffered testimony by two officers not on the ground it was inadmissible, but on the

ground its prejudicial effect outweighed it’s probative value. (Id. at p. 457.) The circuit

court of appeals found no abuse of discretion, observing “[i]ntroducing two experts to

testify that [the defendant-officer] used excessive force would have induced the jurors to

substitute their own independent conclusions for that of the experts.” (Id. at p. 458.)

Generally, “ ‘[a] finding of no abuse of discretion in one court’s exclusion of

evidence has no bearing on whether a different court abused its discretion in admitting

evidence in a different trial.’ ” (People v. Cordova (2015) 62 Cal.4th 104, 134

[194 Cal.Rptr.3d 40, 358 P.3d 518]. Here, in contrast to Thompson, Driscoll was not

called to give his opinion on the legal question of whether the officers used excessive

force, but to explain law enforcement tactics and training in the use of force. In fact, the

trial court expressly barred Driscoll from rendering any opinion on whether the arresting

officers’ use of force was reasonable.

After briefing was complete in this appeal, another division of this court issued its

opinion in People v. Brown (2016) 245 Cal.App.4th 140 [199 Cal.Rptr.3d] (Brown),

holding the trial court abused its discretion in allowing expert testimony on use of force

in a section 69 criminal case. We requested, and the parties provided, supplemental

briefing on the opinion’s significance to this case.

In Brown, the 67-year-old defendant was riding a bicycle on the sidewalk at dusk

while wearing headphones and without a light, in violation of municipal code and

Vehicle Code provisions. An officer yelled at him to stop, and Brown tried to flee on his

bicycle. Two officers pursued, first in patrol cars and then on foot, and arrested him after

a brief altercation. (Brown, supra, 245 Cal.App.4th at p. 145.) The jury found Brown

guilty of resisting an officer in violation of section 69 and two drug offenses. The Court

11

of Appeal conditionally reversed the section 69 conviction because the trial court failed

to sua sponte instruct on the lesser included offense of assault. (Brown, at p. 155.)

The appellate court went on to address defendant’s claim of evidentiary error,

concluding the trial court had also erred in allowing expert testimony on use of force

because it had “added nothing to the common fund of information that any juror would

have brought to the jury room, and . . . inaccurately addressed the governing law.”

(Brown, supra, 245 Cal.App.4th at p. 165.) “Because these officers used ‘force . . .

reduced to its most primitive form—the bare hands’ ” (Kopf, supra, 993 F.2d at p. 379),

this was not a case in which the proper handling of some specialized law enforcement

tool (e.g. a gun, a dog, a Taser, Mace, pepper spray) had to be explained.” (Brown, at

p. 165.) Further, the expert had also been allowed to testify about the meaning and

application of section 8355 and about United States Supreme Court case law on

reasonable force under the Fourth Amendment. Moreover, his testimony was “based on

an inaccurate rendition of the law.” (Brown, at p. 169.)

The Brown court also recognized, however, that “the correct analysis is case by

case and very much dependent on the particular facts presented.” (Brown, supra,

245 Cal.App.4th at p. 163.) As we have discussed, this case did not involve merely “bare

hands,” but a more nuanced set of circumstances. Nor was Driscoll allowed to expound

on the law, let alone erroneously, as was the case in Brown.

In any event, even if Driscoll’s testimony should have been excluded, there was no

prejudicial abuse of discretion. The jury heard the testimony of all those involved in, or

who witnessed, the incident. Defendant, himself, testified. The jury was properly

instructed that it was tasked with deciding the facts and determining witness credibility,

and that the prosecution was required to prove each element of the offense beyond a

reasonable doubt. (CALCRIM Nos. 200, 220, 226.) It was further instructed that it was

not required to accept an expert’s opinion as true or correct and, with respect to

5

Section 835 provides, “An arrest is made by an actual restraint of the person, or

by submission to the custody of an officer. The person arrested may be subjected to such

restraint as is reasonable for his arrest and detention.”

12

hypothetical questions posed to an expert witness, “[i]t is up to you [the jury] to decide

whether an assumed fact has been proved.” (CALCRIM No. 332.) We must presume the

jury followed these instructions (see People v. Alfaro (2007) 41 Cal.4th 1277, 1326

[63 Cal.Rptr.3d 433, 163 P.3d 118]), and given the credibility determinations the jury

plainly made, abundant evidence supports the verdict.

Defendant argues a question the jury asked during deliberations indicates this was

a close case, and Driscoll’s testimony may have tipped the balance in favor of conviction.

The jury sent a note to the court asking: “Please provide clarification (definition and/or

criteria) differentiating between ‘used force . . .’ of [Penal Code section] 69 and ‘willfully

resisted of PC 148.’ ”6 This request does not suggest a “close case” as to the issue on

which Driscoll’s testimony was relevant—that is, whether the officers acted with

reasonable force. Rather, the question suggests the jury had determined the officers acted

lawfully and were grappling with whether defendant’s conduct amounted to use of force.

B. Precluding Questioning on Pending Lawsuit Against Deputy Moschetti

During trial, defense counsel notified the court she wanted to impeach Deputy

Moschetti with questions about a civil lawsuit against him. Outside the presence of the

jury, counsel stated the lawsuit alleged Moschetti deployed his Taser in October 2012 on

a 58-year-old man held at the Martinez Detention Facility, and the man later died.

Counsel did not know whether any administrative hearing had been conducted on the

detainee’s death, but “some internet searching” indicated a coroner’s inquest had

determined the death was an accident. Counsel asserted she would not “be able to call a

witness to explain what happened because the person was dead.” She therefore asked

leave to ask Moschetti during cross-examination: “[D]id you deploy your Taser at the

Martinez Detention Facility, in a manner that has been alleged to have been excessive—

in a manner of excessive force?”

6

The jury was instructed on willfully resisting an officer in violation of

section 148 as a lesser included offense of resisting an officer by force or violence in

violation of section 69.

13

The trial court responded: “[T]he only basis for saying it’s alleged . . . is a civil

lawsuit by—brought [by] John Burris on behalf of surviving family members. And as

everybody knows, anybody can sue anybody and say anything. So the fact that there’s a

lawsuit pending, I don’t see the relevance here.” Defense counsel posited the existence

of the pending lawsuit would show “bias in terms of fear of a subsequent suit” and “prior

bad acts or acting in an aggressive manner.” The prosecutor maintained there was no

evidence of alleged excessive force committed by Moschetti, and any suggestion of such

conduct would be highly inflammatory and improper. Ultimately, the trial court denied

defense counsel’s request, observing if there were a witness to the alleged excessive

force, that witness could testify, “[j]ust as the person [witness] could in any Pitchess case

where the evidence is admissible.”7 In this case, however, defense counsel was “not able

to prove the prior bad act—[¶] . . . [¶] —by the standard necessary, preponderance of the

evidence.” The court also rejected the argument the lawsuit was relevant to show bias.

On appeal, defendant contends “[t]he trial court abused its discretion by excluding

otherwise admissible evidence that Deputy Moschetti had used excessive force against a

detainee.” But defendant offered no “admissible evidence” showing Moschetti used

excessive force against a detainee. Defense counsel admitted she had no witnesses to

establish the facts of the alleged incident. In fact, it does not appear she even offered the

civil complaint as evidence of the specific allegations. At one point in the discussion, the

trial court said to defense counsel “You just have what some legal assistant from John

Burris’[s] office . . . has told you about what he or she understands happened. . . . I

wouldn’t permit any questions about that, based on that showing.” Defendant cannot

7

Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537 [113 Cal.Rptr. 897,

522 P.2d 305] (where defendant was charged with battery of four deputies, evidence of

“disciplinary records . . . necessary as character evidence of the deputies’ tendency to

violence in support of [defendant’s] theory of self-defense” was “unquestionably relevant

and admissible under Evidence Code section 1103”).

14

claim he was improperly barred from presenting relevant, admissible evidence, when he

has not identified any such proffered evidence in the record.8

In any case, even if the trial court abused its discretion in precluding the cross-

examination question, there was no prejudice. Had defense counsel been allowed to ask

Moschetti whether a civil lawsuit against him existed, whatever his response would have

had little, to no, probative value regarding either his credibility or whether he had used

excessive force on another occasion. And, it would have had no relevance to the

credibility of Buford, Santos, Herrera, and defendant. Under these circumstances, it is

not reasonably probable defendant would have obtained a better result had defense

counsel asked Moschetti about the existence of the lawsuit.9

DISPOSITION

The judgment is affirmed.

_________________________

Banke, J.

We concur:

_________________________

Humes, P. J.

_________________________

Dondero, J.

8

For the same reasons, the trial court’s evidentiary ruling did not violate

defendant’s constitutional rights. (See People v. Boyette (2002) 29 Cal.4th 381, 427–428

[127 Cal.Rptr.2d 544, 58 P.3d 391] [rejecting “attempt to inflate garden-variety

evidentiary questions into constitutional ones”].)

9

We therefore need not, and do not, address defendant’s assertion the trial court

incorrectly required him to establish admissibility by a “preponderance of the evidence.”

As we have explained, defendant made no evidentiary showing. And even if he had, any

abuse of discretion in excluding the question and hoped for answer was not, on this

record, prejudicial.

15

Trial Court: Contra Costa County Superior Court

Trial Judge: Honorable Lewis A. Davis

Siri Shetty, under appointment by the Court of Appeal for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney

General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan

and René A. Chacón, Supervising Deputy Attorneys General, for Plaintiff and

Respondent.

16