People v. Hendrix

214 Cal.App.4th 216

153 Cal.Rptr.3d 740

The PEOPLE, Plaintiff and Respondent,

v.Richard Eugene HENDRIX, Defendant and Appellant.

C064377

Court of Appeal, Third District, California.

Filed March 7, 2013

Reversed.

Nicholson, Acting P.J., filed dissenting opinion.

See 2 Witkin & Epstein, Cal. Criminal Law (4th ed. 2012) Crimes Against Governmental Authority, § 128.

APPEAL from a judgment of the Superior Court of Sacramento County, Emily E. Vasquez, Judge. Reversed. (Super. Ct. No. 09F02258).

Alex Green, Chicago, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

MURRAY, J.

Defendant Richard Eugene Hendrix was convicted of resisting an executive officer by use of force or violence in the performance of his duty in violation of Penal Code section 69. In a separate bench trial, the court found true an alleged prior strike. Defendant was sentenced to six years in state prison.

Defendant's first trial ended in a mistrial when the jury declared it was unable to reach a verdict. Prior to the second trial, the prosecution moved in limine to admit five incidents involving prior encounters defendant had with the police. Over defendant's objection, the trial court in the second trial ruled that evidence concerning two of the prior incidents, in which defendant unlawfully resisted the police, would be admissible. These two prior incidents were admitted into evidence at the second trial through live testimony of some of the police officers who were involved. The second jury returned a guilty verdict. Defendant contends the trial court committed reversible error in admitting evidence of the two prior incidents of defendant's misconduct. While evidence of uncharged offenses is admissible under the appropriate circumstances, our high court has cautioned that evidence of this kind “ ‘is so prejudicial that its admission requires extremely careful analysis. [Citations.]’ ” ( People v. Ewoldt (1994) 7 Cal.4th 380, 404, 27 Cal.Rptr.2d 646, 867 P.2d 757 ( Ewoldt ).) Accordingly, we have carefully analyzed the prior incidents admitted here. We agree with defendant and reverse.

FACTUAL AND PROCEDURAL BACKGROUND

I. The Charged Offense

We shall summarize the underlying facts to provide context to the prosecution's offers of proof regarding the uncharged crimes and discuss the trial evidence in more detail, post.

Defendant was charged with violating Penal Code section 69 in that, by use of force and violence, defendant knowingly resisted Luke Mosley, a Sacramento Police officer, in the performance of his duty.

On the night of March 21, 2009, defendant fought a private security guard at an apartment complex. The security guard twice sprayed defendant in the face with pepper spray. He also fired a shot in defendant's direction. Defendant then fled. Later, the Sacramento police and additional security guards arrived on the scene. The police were in dark blue uniforms, the security guards in black uniforms.

After the police arrived, defendant was spotted near a garbage enclosure area. He was intoxicated. Defendant exited the enclosure and began pacing back and forth and yelling incoherent gibberish. Instead of complying with the officers' commands to get on the ground, defendant looked in the direction of the officers and fled. Taking different routes, the police and the security guards chased after defendant. During his flight, defendant either tripped or ran into a parked vehicle and Officer Mosley ran into him. Other police officers caught up to him and, while Officer Mosley attempted to detain defendant, defendant used force against Officer Mosley. None of the officers could remember whether they had identified themselves as police during the encounter.

There was no question that defendant resisted. Defendant contended the proof failed to establish beyond a reasonable doubt that he knew the person he resisted was a police officer. Defendant asserted that, because he had been pepper-sprayed earlier, was intoxicated and the lighting was not good, he might have confused Officer Mosley for a security officer.

II. In Limine Motion Concerning the Prior Offenses

The prosecutor sought admission of evidence concerning five prior incidents involving defendant's encounters with the police under Evidence Code section 1101, subdivision (b).¹ These incidents were labeled 4a through e. The trial court's ruling allowing evidence concerning two of the five incidents was based on the prosecutor's proffer in the in limine briefing.

The two incidents admitted by the trial court, after some redaction, were described in the prosecution's in limine brief as follows:

“b. On May 25, 2005, security guards witnessed domestic violence occurring between Corvette Hendrix, the Defendant's sister, and her boyfriend. The Defendant then got involved. SPD Officer Mueller attempted to detain him, but he violently resisted. When he was being transported to jail, he repeatedly threatened the [ sic ] SPD Officer Wycinski who was driving. He asserted that he would look up the officer's address on the [I]nternet, and come ‘get him.’ At the station, he yelled, ‘You better change your beat.’ [¶] ... [¶]

“e. On September 18, 1993, Alameda Police Officer Simmons responded to reports of an intoxicated person causing a disturbance. He contacted the Defendant, who was displaying objective signs of intoxication. The Defendant passively resisted as Officer Simmons placed handcuffs on him. The Defendant tried to wriggle out of the officer's hold as they walked to the police car. He then refused to get into the vehicle. He kicked at another officer who was trying to assist. Once placed in the car, he lied [ sic ] on his back and moved his hands to the front of his body. He kicked the patrol [car] door. Officer Simmons removed the Defendant from the patrol car, and the Defendant started to struggle again. The deputies placed him back in the patrol car, this time with a hobble, but the Defendant ripped it from his feet. When Officer Simmons tried to replace it, the Defendant spit in his face. The Defendant was finally transported to a holding cell. He hit, kicked and tried to ram the door with his body. He also tried to cover the camera in the cell.”

The incidents the trial court excluded were described as follows:

“a. On June 7, 2006, the Defendant was contacted at Franklin Villa Apartments, and taken into custody for an outstanding warrant. SPD Officer Pinola placed him in the rear of a patrol vehicle. The Defendant then proceeded to kick the patrol vehicle window, pushing the window outside of the door frame.

“c. [A]fter the Defendant was booked [for the incident described in “b”] Deputy Reeve was informed that the Defendant kicked the holding cell door. When the deputy entered the cell to remove the Defendant, the latter took a bladed stance. With the assistance if [ sic ] Deputy Nelson, Deputy Reeve placed the Defendant into a control hold to escort him to a sobering cell. The Defendant called the deputies cowards. When they arrived at the holding cell, he failed to comply with directives, physically struggled with the deputies, and threatened to ‘kick their asses.’ As Deputy Wade tried to leave the cell, the Defendant physically assaulted him, choking and scratching him.

“d. On January 1, 1999, SSD Deputies Morris and Maxwell responded to a domestic violence call. When they arrived, they heard glass breaking down the street. They ran toward the sound, and observed the Defendant standing in front of an apartment with a golf club in his hand. There was broken glass on the ground. They detained the defendant, and placed him in the back of their patrol vehicle. The Defendant started threatening to kill them. He said he was a 29th Street Crip, and would kill any officers who came into G Parkway. He kicked the rear window of the patrol vehicle 10–15 times as he continued to threaten and spit at the deputies.”

In the in limine briefing, the prosecution contended that, under section 1101, subdivision (b), these prior incidents were “admissible to establish that the Defendant knew that Officer Mosely [ sic ] was a police officer who was performing his duty. The evidence is particularly important in this case as the Defendant asserts that he did not know he was being pursued by police officers.” The prosecution further sought to introduce the prior incidents “for the purpose of rebutting any implication of mistake of fact or self defense.”

The prosecution supplemented its theory of admissibility at oral argument on the motion: “I think that given the fact that the defendant has had interactions—intimate interactions with law enforcement reaching back into the early [1990's] and that he has dealt with them in an aggressive and resistant manner despite knowing they were officers in each instance speaks to his knowledge in this case, just like a drug case showing that someone has dealt with narcotics before and has suffered some kind of arrest or conviction, it's analogous to this situation. [¶] [ T ] he fact that the defendant has acted in this manner with officers in the past goes to the fact that he had full knowledge that they were officers he was dealing with in this case.” (Italics added.)

Defense counsel objected to the admissibility of all the prior incidents. He challenged the 1993 incident on remoteness grounds. As for the prosecution's knowledge theory, defense counsel acknowledged that the defense he was prepared to advance would put the element of knowledge in active dispute but argued, “The fact that [defendant has] dealt with the police in the past I don't believe makes him unique compared to 100 percent of the population in our community who know what a police officer uniform means. It means a...