P. v. Roberts

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Filed 4/30/07 P. v. Roberts CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL L. ROBERTS,
Defendant and Appellant.
A111329
(Del Norte County
Super. Ct. No. CRPB04-5192)
Defendant Michael Roberts appeals his conviction by jury trial of resisting an
executive officer (Pen. Code, § 69).1 The trial court sentenced defendant to three years in
state prison to be served consecutive to the sentence he was currently serving. Defendant
raises numerous claims of error on appeal. We agree with defendant that his sentence
must be vacated, but reject his other contentions.
B ACKGROUND
Defendant was an inmate at Pelican Bay State Prison. On May 4, 2004, he was
taken to Sutter Coast Hospital for knee surgery. On May 5, he was discharged from the
hospital. Sergeant Wood, who is employed by the prison and was serving as the hospital
coverage sergeant that day, received the discharge instructions and called for the
transportation team. The team included Sergeant Heflick, Officer Tygart, Officer
McDevitt, and Officer Witt. When the team contacted defendant, he became
1 All undesignated section references are to the Penal Code.

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argumentative and said, “I’m not going anywhere until I see a doctor.” Defendant
refused to get dressed.
Officer Witt handcuffed defendant and defendant’s leg restraints were undone.
The officers tried to put defendant’s pants on for him but defendant started kicking,
screaming, and thrashing around. Sergeant Wood held defendant’s right leg to keep the
stitches from tearing, Officer McDevitt held defendant’s left arm, and Officer Tygart held
defendant’s right arm. Officers McDevitt and Tygart tried to force defendant’s hands
down to secure defendant’s handcuffs to his waist chain, but defendant resisted and
clutched his hands close to his chest. As the officers were trying to bring down
defendant’s hands, defendant sat up, leaned forward, and bit Officer McDevitt’s hand.
Officer McDevitt then used his palm to push defendant’s face down to the right.
Defendant continued to yell and, as he did so, blood was spewing from his mouth.
Officer McDevitt noticed the blood coming out of defendant’s mouth and put a bed sheet
and then a pillowcase over defendant’s head to prevent the blood from getting on anyone
in the room. Another officer then retrieved a “spit hood” which replaced the pillowcase.
Defendant was finally secured and transported to the prison.
Defendant testified on his own behalf, and explained he was in a lot of pain the
day after his surgery and was very tired. The officers came into his room and demanded
he get dressed. Defendant wanted an explanation of the surgical procedure that had been
performed and asked to see a doctor. As the officers pulled his hospital gown and
blankets off, defendant admitted to being “a little demanding” about talking with a
doctor. Defendant did not resist when officers placed the handcuffs on him. As the
officers began to force defendant into his jumpsuit, Officer McDevitt was pushing
defendant’s head into the pillow with his palm over defendant’s eyes and his fingers over
defendant’s mouth. When another officer grabbed defendant’s knee, defendant yelled out
in pain and ended up with a finger inside his mouth. Defendant let the finger go and
stated that if he bit anyone, it was not intentional. Immediately after the finger left his
mouth, defendant was punched in the face. Defendant continued to scream with blood

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coming out of his mouth and was soon smothered by a pillow. He was then lifted up in
the bed sheet, taken outside and thrown into the transportation van.
As a result of this incident, defendant was charged with battery by an inmate on a
noninmate (§ 4501.5) for allegedly biting Officer McDevitt’s finger, and resisting an
executive officer (§ 69) for his use of force and violence against Officers McDevitt, Witt,
and Tygart in the performance of their duties. Defendant was also charged with one prior
felony conviction alleged as a strike (within the meaning of §§ 1170.12, 667 subds. (b)-
(i)). The trial court found there was a failure of proof as to defendant’s prior conviction
and refused to give an instruction as to that charge. The court declared a mistrial and
dismissed the battery count pursuant to the People’s motion. Defendant was found guilty
of the second count of resisting an executive officer.
D ISCUSSION
I. The Trial Court Did Not Err in Denying Defendant’s Pitchess Motion.
Prior to trial, defendant filed a Pitchess motion for discovery of peace officer
personnel records (Pitchess v. Superior Court (1974) 11 Cal.3d 531), requesting various
personnel records relating to Officers McDevitt, Tygart, and Witt. The trial court held a
hearing and denied the motion “based upon the insufficiency of the grounds to establish
discovery of the officers’ personnel records.” The court held it was not enough that the
defendant felt the officers harbored ill feelings toward him or that he disputed how the
events happened. Defendant contends the trial court erroneously denied his Pitchess
motion and imposed too high a burden to show good cause. We disagree.
In Pitchess, the California Supreme Court “established that a criminal defendant
could ‘compel discovery’ of certain relevant information in the personnel files of police
officers by making ‘general allegations which establish some cause for discovery’ of that
information and by showing how it would support a defense to the charge against him.”
(Warrick v. Superior Court (2005) 35 Cal.4th 1011, 1018-1019.) “[T]he California
Legislature codified the holding of Pitchess by enacting Penal Code sections 832.7 and
832.8 as well as Evidence Code sections 1043 through 1045.” (Warrick, at p. 1019.)
Generally, peace officer personnel records “are confidential and shall not be

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disclosed in any criminal or civil proceeding except by discovery pursuant to
Sections 1043 and 1046 of the Evidence Code.” (Pen. Code § 832.7, subd. (a).)
Section 1043 of the Evidence Code requires a defendant to file a written motion for
discovery of peace officer personnel files that includes “[a]ffidavits showing good cause
for the discovery or disclosure sought, setting forth the materiality thereof to the subject
matter involved in the pending litigation . . . .” (Evid. Code § 1043, subd. (b)(3).) Once
good cause has been established, the trial court must examine the material in camera to
determine its relevance to the case according to guidelines set out in Evidence Code
section 1045. “A motion for discovery of peace officer personnel records is ‘addressed
solely to the sound discretion of the trial court.’ ” (People v. Gill (1997) 60 Cal.App.4th
743, 749, quoting Pitchess v. Superior Court, supra, 11 Cal.3d at p. 535.) A review of
the lower court’s ruling is subject to an abuse of discretion standard. (Gill, at p. 749.)
The California Supreme Court recently reviewed the sufficiency of a showing for
a Pitchess motion in Warrick. The court concluded that “to obtain in-chambers review
[of documents or information in the officer’s personnel file that are potentially relevant to
the claimed misconduct] a defendant need only demonstrate that the scenario of alleged
officer misconduct could or might have occurred.” (Warrick v. Superior Court, supra, 35
Cal.4th at p. 1016.) The court explained: “A showing of good cause is measured by
‘relatively relaxed standards’ that serve to ‘[ensure] the production’ for trial court review
of ‘all potentially relevant documents.’ ” (Ibid.) The request for information must be
“described with some specificity to ensure that the defendant’s request is not so broad as
to garner ‘ “all information which has been obtained by the People in their investigation
of the crime” ’ but is limited to instances of officer misconduct related to the misconduct
asserted by the defendant.” (Id. at p. 1021.) This specificity requirement also “enables
the trial court to identify what types of officer misconduct information, among those
requested, will support the defense or defenses proposed to the pending charges.” (Ibid.)
Furthermore, in order “[t]o show good cause as required by [Evidence Code]
section 1043, defense counsel’s declaration in support of a Pitchess motion must propose
a defense or defenses to the pending charges. The declaration must articulate how the

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discovery sought may lead to relevant evidence or may itself be admissible direct or
impeachment evidence [citation] that would support those proposed defenses.” (Id. at
p. 1024, italics added.) “Counsel’s affidavit must also describe a factual scenario
supporting the claimed officer misconduct. That factual scenario, depending on the
circumstances of the case, may consist of a denial of the facts asserted in the police
report.” (Id. at pp. 1024-1025.)
“To determine whether the defendant has established good cause for in-chambers
review of an officer’s personnel records, the trial court looks to whether the defendant
has established the materiality of the requested information to the pending litigation. The
court does that through the following inquiry: Has the defense shown a logical
connection between the charges and the proposed defense? Is the defense request for
Pitchess discovery factually specific and tailored to support its claim of officer
misconduct? Will the requested Pitchess discovery support the proposed defense, or is it
likely to lead to information that would support the proposed defense? Under what
theory would the requested information be admissible at trial?” (Warrick v. Superior
Court, supra, 35 Cal.4th at pp. 1026-1027.)
Here, defendant’s Pitchess motion sought discovery of materials relating to,
among other things, the officers’ history of false arrest, fabrication of charges, and
dishonesty. Defendant attached his own declaration to his motion and asserted that the
officers made false, misleading, and/or inaccurate statements in the crime/incident report.
He underlined in black ink statements he claimed were false or misleading and attached
the report to his declaration. These underlined portions related primarily to defendant’s
refusal to get dressed and his yelling, kicking and other resistant behavior. Defendant
stated that he and Officer McDevitt had had verbal disagreements in the past and he felt
the officers harbored ill feelings toward him. He stated that he had continuing problems
with Officer McDevitt, who was assigned to the unit where defendant was placed. The
motion also included a declaration by defendant’s attorney stating that defendant was
expected to testify at trial that the various correctional officers prepared false reports or
engaged in other types of misconduct or improper tactics and the personnel files were

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necessary to illuminate similar prior misconduct. Defendant’s attorney stated his belief
that the officers involved would be called as witnesses at trial. Also, defendant’s attorney
stated that material and substantial issues at trial would “include the character, habits,
customs, and credibility of these [c]orrectional [o]fficers.”
Although defendant’s Pitchess motion contained some of the required elements, it
lacked one critical component. Defendant stated that the officers made false, misleading,
and/or inaccurate statements, but never articulated his proposed defense. He underlined
various portions of the California Department of Corrections crime/incident report,
implying that these statements were false or misleading, but he never set forth his version
of what took place. His proposed defense might have been that he did not act in the way
the officers alleged at all, that he acted in self-defense, or that his actions were
involuntary reactions due to the pain he was experiencing or the medication he had taken.
As the trial court stated, it is not enough to simply disagree with the officers’ reports.
Warrick requires that a defendant propose a defense to the charges and demonstrate that
the material sought would support that defense. The trial court was not expected to
review the officers’ files for alleged misconduct to support any possible defense; rather,
defendant needed to set forth his defense to properly focus the court’s inquiry.
Defendant cites People v. Hustead (1999) 74 Cal.App.4th 410 to support his
position on appeal; however, Hustead confirms the inadequacy of defendant’s motion. In
Hustead, the defendant was charged with felony evasion of arrest and claimed the police
report contained material misstatements. Hustead sought Pitchess discovery of whether
the officer had a history of misstating or fabricating facts in his police reports. Hustead’s
counsel asserted in his declaration that the officer made material misstatements, including
fabricating the defendant’s dangerous driving maneuvers. (Hustead, at pp. 415-417.)
Counsel further stated that the defendant asserted he did not drive in the manner
described by the report and that his driving route was different from that found in the
report. Counsel asserted that a material and substantial issue in the trial would be the
character, habits, customs, and credibility of the officer. The Court of Appeal found that
these assertions were sufficient to establish a plausible factual foundation for an

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allegation that the officer made false accusations in the report and to demonstrate that the
defense would be that the defendant did not drive in the manner suggested by the police
report and, therefore, the charges were not justified. (Id. at p. 417.) The Court of Appeal
found the trial court abused its discretion in failing to hold an in camera hearing to review
the officer’s files with respect to acts of dishonesty. (Id. at pp. 416, 418.) However,
Hustead does not assist defendant, because in Hustead the defendant proposed a specific
defense.
We also reject defendant’s claim of a violation under Brady v. Maryland (1963)
373 U.S. 83. Under Brady, a prosecutor must disclose material evidence that is favorable
to the defendant. (Id. at pp. 86-87.) “California’s Pitchess discovery scheme ‘creates
both a broader and lower threshold for disclosure than does the high court’s decision in
Brady . . . .’ ” (People v. Thompson (2006) 141 Cal.App.4th 1312, 1319, quoting City of
Los Angeles v. Superior Court (2002) 29 Cal.4th 1, 14.) “ ‘[I]f a defendant cannot meet
the less stringent Pitchess materiality standard, he or she cannot meet the more taxing
Brady materiality requirement.’ ” (Thompson, at p. 1319, quoting People v. Gutierrez
(2003) 112 Cal.App.4th 1463, 1474.)
II. No Unanimity Instruction Was Required.
Defendant next contends the trial court erred by failing to give, sua sponte, the
jury instruction on unanimity set out in CALJIC No. 17.01.2 He contends there were
several acts upon which he might have been found guilty of resisting an executive officer,
such as kicking, or biting, or refusing to get dressed.
Courts generally require one criminal act is charged, but the evidence tends to
show the commission of more than one such act, “either the prosecution must elect the
2 CALJIC No. 17.01 provides: “The defendant is accused of having committed the
crime of __ [in Count__]. The prosecution has introduced evidence for the purpose of
showing that there is more than one [act] [or] [omission] upon which a conviction [on
Count __] may be based. Defendant may be found guilty if the proof shows beyond a
reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions].
However, in order to return a verdict of guilty [to Count __], all jurors must agree that
[he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not
necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”

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specific act relied upon to prove the charge to the jury, or the court must instruct the jury
that it must unanimously agree that the defendant committed the same specific criminal
act.” (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) However, even when the
prosecution proves more unlawful acts than were charged, no unanimity instruction is
required where the acts proved constitute a continuous course of conduct. When two
offenses are so closely connected in time that they form part of one transaction, no
unanimity instruction is required. (People v. Diedrich (1982) 31 Cal.3d 263, 282.)
The California Supreme Court concluded that the purpose of the unanimity
instruction governs its use. (People v. Russo (2001) 25 Cal.4th 1124, 1134-1135.) “The
jury must agree on a ‘particular crime’ [citation]; it would be unacceptable if some jurors
believed the defendant guilty of one crime and other jurors believed [the defendant]
guilty of another. But unanimity as to exactly how the crime was committed is not
required. Thus, the unanimity instruction is appropriate ‘when conviction on a single
count could be based on two or more discrete criminal events,’ but not ‘where multiple
theories or acts may form the basis of a guilty verdict on one discrete criminal event.’ ”
(Ibid.)
The trial court was not required to give the unanimity instruction. Defendant’s
actions constituted a continuous course of conduct and were so closely related in time
that they constituted part of the same transaction. Although it is true that evidence
showed defendant kicked, yelled, bit, and thrashed about, these actions all occurred as the
officers were attempting to dress defendant to leave the hospital on the morning of May
5, 2004, and they were all part of the same criminal event of resisting the officers.
Defendant’s various actions were offered as evidence to show how the crime was
committed. As Russo stated, unanimity as to exactly how the crime was committed is not
required. Defendant was continuously kicking, thrashing, and yelling and the jury was
not required to decide the precise extent of each.
III. There Was Sufficient Evidence for a Conviction Under Section 69.
Defendant contends that the evidence adduced at trial was not sufficient to sustain
his conviction for resisting an executive officer under section 69 and emphasizes the

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distinction between an executive officer and a ministerial officer. He proceeds to argue
that the prosecution failed to present any evidence establishing that any of the
correctional officers were executive officers, and not merely ministerial officers. This
distinction lacks merit. Section 69 expressly applies to resisting an executive officer, but
section 77 states that certain provisions, including section 69, apply to administrative and
ministerial officers, in the same manner as if they were mentioned therein.3
IV. The Trial Court Did Not Err in Admitting Officer Tygart’s Testimony.
Defendant next contends that the trial court erred in admitting the allegedly
speculative testimony of Officer Tygart and that this speculation usurped the function of
the jury to determine matters of fact and guilt. On direct examination, Officer Tygart
testified without objection that he saw defendant “place his mouth on . . . [Officer
McDevitt’s] hand and bit[e] his hand.” Officer Tygart explained that defendant “just
leaned forward and reached down and bit him.” On cross-examination, defense counsel
asked, “[I]sn’t it true that [defendant] said to you in the van afterwards that he did not
mean to bite . . . Officer McDevitt; it just happened?” Officer Tygart responded, “That
he just did, yeah.”
On redirect examination, the People asked Officer Tygart: “From what you saw
that morning, is there any doubt in your mind whether . . . defendant intended to bite?”
Defense counsel objected that the question “calls for a conclusion that he’s not capable
of.” The trial court overruled the objection and Officer Tygart responded, “I’m pretty
sure he intended to bite him.” The district attorney asked Officer Tygart if he could again
describe why, and Officer Tygart responded, “Because he went out of his way to lean
forward.”
“A lay witness may testify to an opinion if it is rationally based on the witness’s
perception and if it is helpful to a clear understanding of his testimony.” (People v.
Farnam (2002) 28 Cal.4th 107, 153; Evid. Code, § 800.) We review the trial court’s
3 Section 77 provides: “The various provisions of this title, except Section 76, apply
to administrative and ministerial officers, in the same manner as if they were mentioned
therein.”

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admission of the lay witness testimony for an abuse of discretion. (Farnam, at p. 153-
154.) In Farnam, the California Supreme Court found that the trial court acted within its
discretion by permitting a correctional sergeant to testify that the defendant stood “in a
posture like he was going to start fighting.” (Id. at p. 153.) The court explained that the
sergeant’s testimony “was based on his personal observations that [the] defendant was
being ‘very defiant’ about the court order and physically stood with his hands at his side
and left foot forward.” (Ibid.) Furthermore, the court noted that such perceptions are
within common experience, and certainly within the experiences of the correctional
sergeant who testified. (Ibid.)
Similarly, the trial court here acted within its discretion in permitting Officer
Tygart’s testimony. We cannot say that Officer Tygart’s testimony lacked a rational
basis or failed to clarify the rest of his testimony. Officer Tygart was standing opposite
Officer McDevitt and was holding onto defendant’s right arm. He was involved in the
struggle that occurred and in a good position to observe the contact between defendant’s
mouth and Officer McDevitt’s hand. Officer Tygart’s statement that he was “pretty sure”
defendant intended to bite served to clarify his perception of what had taken place. It is
within common experience to perceive if someone makes an active attempt to bite
someone rather than an unanticipated contact. Furthermore, Officer Tygart had already
presented his concrete observations of what happened (explaining that defendant leaned
forward, reached down and placed his mouth on Officer McDevitt’s hand); but, this
account alone would not differentiate an intentional bite from defendant’s account that
Officer McDevitt’s hand fell into defendant’s mouth during the commotion. In this way,
Officer Tygart clarified his testimony that defendant’s actions appeared intentional rather
than accidental. The ruling was appropriate.
V. The Sentence by the Trial Court Must be Vacated
Finally, defendant contends that the trial court violated the principles of Blakely v.
Washington (2004) 542 U.S. 296, by imposing the aggravated sentence without jury
findings relative to any aggravating factors.

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In Apprendi v. New Jersey (2000) 530 U.S. 466, the United States Supreme Court
applied the Sixth Amendment to the United States Constitution and held that other than
the fact of a prior conviction, any fact that increases the penalty for a crime beyond the
statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Id. at
p. 490.) For this purpose, the statutory maximum is the maximum sentence that a court
could impose based solely on facts reflected by a jury’s verdict or admitted by defendant.
When a sentencing court’s authority to impose an enhanced sentence depends upon
additional fact findings, there is a right to a jury trial and proof beyond a reasonable
doubt on the additional facts. (Blakely v. Washington, supra, 542 U.S. at pp. 302-305.)
In Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856, 860], the United States
Supreme Court held that by “assign[ing] to the trial judge, not to the jury, authority to
find the facts that expose a defendant to an elevated ‘upper term’ sentence,” California’s
determinate sentencing law “violates a defendant’s right to trial by jury safeguarded by
the Sixth and Fourteenth Amendments.” (Ibid., overruling on this point People v. Black
(2005) 35 Cal.4th 1238, vacated in Black v. California (2007) __ U.S. __ [127 S.Ct.
1210].)
Finally, in Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546, 2551], the
United States Supreme Court held that Blakely error was not structural error, but instead
subject to harmless error analysis under Chapman v. California (1967) 386 U.S. 18, 24.
(Accord, People v. Sengpadychith (2001) 26 Cal.4th 316, 327.) Thus, any error the trial
court made in considering an aggravating circumstance is harmless under Chapman, if
we conclude, beyond a reasonable doubt, the jury would have found that circumstance
true.
The trial court decided to impose the aggravated term after balancing three
aggravating factors against one mitigating factor. In aggravation, the court found the
following factors: (1) defendant has engaged in violent conduct indicating a serious
danger to society (Cal. Rules of Court, rule 4.421 (b)(1)); (2) his prior convictions as an
adult or sustained petitions in juvenile delinquency proceedings are numerous or of
increasing seriousness (Cal. Rules of Court, rule 4.421 (b)(2)); and (3) defendant has

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served a prior prison term (Cal. Rules of Court, rule 4.421 (b)(3)). Against these
aggravating factors, the court stated “[i]n mitigation under rule 423, it was a somewhat
unusual circumstance in that he was receiving medical treatment at the time and . . .
apparently did want to speak . . . further to a doctor . . . .”
The trial court’s reliance on the first aggravating factor to impose the upper term
was inappropriate under Cunningham, supra. And, we are unable to conclude that this
error was harmless under Washington v. Recuenco, supra. Even if we were to find that
the other two aggravating factors relied upon were valid under Cunningham or harmless
under Washington v. Recuenco, we are unable to find under Chapman v. California,
supra, 386 U.S. 18, that beyond a reasonable doubt the trial court would have imposed
the upper term even if it had not considered the first factor. Thus, imposition of the upper
term was inappropriate, and we vacate the sentence and remand for further proceedings
on this issue.
D ISPOSITION
The case is remanded for resentencing. In all other respects the judgment is
affirmed.
SIMONS, J.
We concur.
JONES, P. J.
Bruiniers, J.∗
∗ Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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