People v. Byrket

1

THE PEOPLE, Plaintiff and Respondent, v. DAVID SCOTT BYRKET, Defendant and Appellant.

F079315

California Court of Appeals, Fifth District

December 22, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No BF151624A Susan M. Gill, Judge.

Patrick Morgan Ford for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Amanda D. Cary and Lewis A Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

MEEHAN, J.

INTRODUCTION

In 2014, defendant David Scott Byrket was convicted by jury of one felony count of resisting an executive officer with force or violence, in violation of Penal Code section 69.^[1] The trial court suspended imposition of sentence and placed defendant on probation for three years, with the first 120 days to be served in jail as a condition of probation.

In defendant's first appeal, he claimed the trial court erred in admitting evidence that the internal affairs investigation into Deputy Geherty's use of force did not result in any disciplinary consequences.^[2] Defendant also claimed the trial court's instruction to the jury on that issue was erroneous and, cumulatively, the evidentiary and instructional errors deprived him of a fair trial. Finally, in accordance with Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess), defendant sought to discover statements from five percipient law enforcement witnesses and he claimed the trial court erred in withholding those statements.^[3]

On review, this court found the trial court abused its discretion when it denied defendant's motion for discovery of the percipient witnesses' statements, and we conditionally reversed the judgment and remanded the matter for further proceedings. However, we rejected defendant's other claims of error.

Following disclosure of the witnesses' internal affairs statements on remand, defendant moved for a new trial. The trial court denied the motion and defendant's appeal of that ruling is now before us. Defendant claims the court abused its discretion, entitling him to reversal of his conviction and remand for a new trial.

The People dispute defendant's entitlement to relief.

We find no error and affirm the judgment.

FACTUAL SUMMARY^[4]

I. Prosecution Case

At the time of the offense, defendant lived in the Kern County town of Onyx with his wife, one of his adult sons and his daughter.^[5] On the morning of April 21, 2013, defendant's son, David, telephoned 911 and reported his father had "'lost his mind'" and was "'mentally not there.'" David said defendant was "'running up and down the streets'" and "'yelling, '" was "'not himself, '" and "'need[ed] a psychiatric evaluation.'" (Byrket I, supra, 2017 Cal.App. Unpub. Lexis 6964, *3.) David said his father had been that way for a few days. While deputies with the Kern County Sheriff's Department were en route to Onyx, a neighbor also made a 911 call and told the dispatcher defendant is "'kind of a big, scary guy but he's [Welfare and Institutions Code section ]5150.'" The neighbor said, "'[T]ry not to hurt him, okay, because he's a nice guy. He's just out of it today.'" (Ibid.)

Kern County Sheriff's Deputies Geherty, Garza and Brooks responded to defendant's residence in separate patrol cars to conduct a welfare check. Upon arrival, Geherty made contact with David while Garza made contact with defendant. Garza testified defendant was running in the road in a zigzag pattern and jumped on a fence, and he was yelling about his daughter being raped and wanting to go to jail. Defendant was described as alternating between calm and agitation. Defendant voluntarily entered Garza's patrol car and was agreeable to going to Mary K. Shell, a mental health crisis center in Bakersfield.

The 911 call was assigned to Geherty and, therefore, defendant was transferred to Geherty's patrol car for voluntary transportation to Mary K. Shell. Approximately 10 minutes into the transport, Geherty noticed defendant was slipping his handcuffs from the back of his body to the front of his body. Defendant did not comply with orders to stop and Geherty pulled his patrol car over near the entrance to Red's Marina at Lake Isabella. Defendant unbuckled his seatbelt and began kicking the window of the patrol car. After Geherty threatened to spray him with pepper spray if he did not stop, defendant represented he would stop, rolled over onto his stomach and placed his hands behind his head in compliance with Geherty's order. As Geherty went to open the passenger door, defendant kicked it open and used his body to prevent Geherty from closing it again.

Defendant and Geherty ended up struggling on the ground as Geherty attempted to regain control over defendant and get his hands cuffed behind his back again. Geherty had already placed two radio calls, the first to report defendant slipped his cuffs and the second to report defendant was resisting arrest. While Geherty was on the ground struggling with defendant but before responding officers arrived, citizen Carol Y. witnessed the struggle and pulled her vehicle over. She approached and offered her assistance but Geherty waved her off, concerned she would get hurt. She stood nearby and watched until other officers arrived. She then left the scene, but returned with her father and provided a statement to an officer.

In response to Geherty's radio call for assistance, four deputies, including Garza and Brooks, and two Kern County Parks and Recreation Department officers responded to the scene.^[6] Officers succeeded in gaining control over defendant, handcuffing him behind his back again and hobbling his legs. Defendant was then returned to Geherty's patrol car and transported to jail.

II. Defense Case

Defendant's wife, Zina, testified that defendant had no history of mental illness and was not violent. She said they had been arguing the morning of the incident because defendant wanted to kick David out of the house. She was upset and left. However, in a recorded telephone call defendant placed from the jail the day after his arrest, he told Zina he messed up and did not know why he was there. Zina responded that he needed mental help and had been crazy for the past few weeks. In a second recorded telephone call the same day, Zina told defendant he was going insane.

David testified that he had problems with alcohol on and off, and the day before the incident, he was at a wedding where he drank. He came home early the next morning and went to bed, but defendant woke him up and wanted him to do yardwork. They argued and defendant told him to pack his bags. David testified that in an effort to get defendant picked up and taken away, he called 911 and lied about defendant's behavior. He also testified he lied to his neighbor, his mother, and his brother, Jonathan, about defendant's behavior; and his neighbor called 911 at his request. David testified he did not tell his mother and brother the truth about the situation until two or three days later.

The defense also presented evidence that during the second telephone call defendant made from jail, he told Jonathan he needed to go to the hospital and had broken bones. After his release from jail, Zina took some photographs of bruises and marks on defendant's body. Zina testified the photos were taken at the same time, with the exception of the photo of his side. Additionally, she was unsure when she took the photo of his hand. However, during cross-examination, the prosecutor elicited evidence that of the photos Zina testified were taken at the same time, defendant was not wearing the same clothing in every shot.

Defendant's primary care physician testified that he saw defendant on April 29, 2013, for rib and chest pain, and subsequent evaluation revealed recently fractured ribs and a spinal compression. He defined "'recent'" for purposes of the fractures as sustained within days or a few weeks of the X-ray and testified that defendant has a history of severe osteoporosis, which renders sufferers more susceptible to fractures. (Byrket I, supra, 2017 Cal.App. Unpub. Lexis 6964, *7.) He also testified that he saw defendant eight days after the arrest and, while bruises start to turn yellow and green within two or three days of injury, defendant's bruising appeared fresh.

DISCUSSION

I. Remand in Byrket I

This appeal requires us to determine whether the trial court erred when it concluded defendant was not entitled to a new trial based on the posttrial disclosure of the statements Geherty, Garza, Brooks, Melby, and Kirkham provided during the internal affairs investigation into defendant's excessive force complaint. As a threshold matter, we address defendant's characterization of the disposition in Byrket I as "essentially" granting him a new trial if he could show the previously undisclosed reports were material.

Defendant advanced a similar argument in the trial court. The court disagreed and stated, "You say you felt the Court of Appeals' decision, essentially, found a prima facie basis for prejudice. If that were the case, I think they would have remanded the matter to have a new trial, and that's not what they did. They did a conditional reversal and said you need to get the information. You need to evaluate the information to decide if there's a basis for motion for a new trial. Then you can bring a motion for new trial. [¶] So I don't know that I agree that the appellate decision found a prima facie basis for prejudice, and I would invite you to show me where that is in the opinion."

Trial counsel then conceded, "You're right. I overstated my case."

The argument fares no better on review. In Byrket I...