People v. Moreno

• Decision Date: 30 March 1973
• Docket Number: No. 24393,24393
• Citation: 108 Cal.Rptr. 338,32 Cal.App.3d Supp. 1
• Court: California Superior Court
• Parties: 32 Cal.App.3d Supp. 1 PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Joseph MORENO, Defendant and Appellant. Appellate Department, Superior Court, San Joaquin County, California

Page 338

108 Cal.Rptr. 338

32 Cal.App.3d Supp. 1

PEOPLE of the State of California, Plaintiff and Respondent, v. Manuel Joseph MORENO, Defendant and Appellant.

No. 24393.

Appellate Department, Superior Court, San Joaquin County, California March 30, 1973.

[32 Cal.App.3d Supp. 3] Joseph Baker, Dist. Atty., Pat Ferrill, Deputy Dist. Atty., Stockton, for plaintiff and respondent.

George W. Luke, Deputy Public Defender, Stockton, for defendant and appellant.

OPINION

DOZIER, Judge.

THE INCIDENT (S)

At about 5 o'clock in the morning on January 1, 1972, Sheriff's Deputies Dunn and Phillips responded to a call of a family disturbance at 848 South Adelbert Street with the possibility of a gun involved. When the officers arrived, they noticed Manuel Moreno standing on the front porch sobbing.

He did not respond to their questionings so the officers interrogated the residents of the home who had called the police. While this questioning was in process, Moreno started to walk away. There is extreme conflict in the evidence as to what then occurred. It is clear that Dunn placed his hand on Moreno to restrain him. The necessity of this action and the manner in which it was done were points in respect to which the witnesses violently disagreed. Whether the officers were brusque, brutal and aggressive or Moreno obstinate, defiant and physically resistant depends on which witnesses are believed. There was also not agreement as to whether the officers were detaining for questioning or making an arrest or, if both, the moment when the purpose of their action changed.

In any event, Moreno for a considerable period of time struggled with the officers and either struck and kicked them or attempted to do so. He was finally subdued, handcuffed and placed in the police car.

Moreno was then quiet and peaceable for the next one-half hour during the ride to the jail and while he was being brought to the booking desk. Thereafter, he took offense at the request to remove his wallet and another fight with Dunn, in the presence of the booking desk personnel, occurred.

THE TRIAL

Moreno went to trial only on the charge of a violation of Penal Code section 148, resisting an officer in the discharge of his duty, the Penal Code section 243, battery upon a police officer, having been dismissed.

Counsel for the defendant asked the court to provide a reporter to help preserve a transcript for reference to the jury and for motion for a new trial or appeal purposes. The trial court refused.

During the trial, after the prosecutor presented the evidence of the resisting incident at the home, he then commenced to present the evidence of the resisting incident at the jail. Defense counsel promptly objected and, pointing out that only one count of a violation of Penal Code section 148 had been charged, asked that the prosecutor be put to an election as to which incident he intended to rely on. The trial court refused to require this election, permitted evidence on both episodes to be presented to the jury and did not instruct them that they must unanimously agree to guilt on the same incident in order to convict Moreno.

In the course of the testimony at the trial, one Joe Salas, a resident of the house, who had called the officers, testified as to the reason for the officers being called but then was quite evasive and apparently suffered from a selective amnesia when asked what he had observed of the scuffle on the porch. Salas said he gave a statement to an investigating officer, Biancalana, but couldn't remember its content. The prosecutor then put Biancalana on the stand and, over objection, after making an offer of proof to the court, had Biancalana testify by way of impeachment that: 'Salas advised me that Manuel Moreno provoked the incident and the police officer did nothing to provoke it.'

At the close of the testimony and after argument in which the prosecuting attorney was permitted to argue that by virtue of Penal Code section 834a an arrestee has no right to resist an arrest, whether lawful or not, the court gave the usual instructions among which were two crucial ones, to wit:

CALJIC 16.100--RESISTING ARREST, Penal Code section 148: 'Every person who wilfully resists, delays, or obstructs any public officer in the discharge or attempt to discharge any duty of his office, is guilty of a misdemeanor.

'The phrase 'in the discharge or attempt to discharge any duty of his office,' as used in this instruction, includes:

'The making of or the attempt to make A lawful arrest by a peace officer. A Sheriff's Deputy is a peace officer and as such is a public officer within the meaning of this instruction.'

CALJIC 16.013--RESISTING ARREST--USE OF REASONABLE FORCE--DUTY TO SUBMIT: 'A peace officer who is making a lawful arrest may use reasonable force to make such arrest, or to prevent escape, or to overcome resistance.

'The officer need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being arrested.

'If a person has knowledge, or by the exercise of reasonable care should have knowledge, that he is being arrested by a peace officer, It is the duty of such person to refrain from using force to resist such arrest, whether the arrest is either lawful or unlawful (unless unreasonable or excessive force is being used to make the arrest).'

THE APPEAL

Counsel for Moreno has set up a barrage of objections to the conviction. Several of these have been adequately answered, but two of them are fatal.

First, the defendant contends that it was a violation of due process and equal protection to deny him, an indigent, a court reporter. People v. Goudeau, 8 Cal.App.3d 275, 87 Cal.Rptr. 424, held that the municipal court may constitutionally deny the provision of a court reporter at a misdemeanor trial, if (a) other effective methods of appellate review such as a settled statement are provided, and (b) the trial is not so complex that no appeal is practicable without a transcript.

In the present case, counsel attempted to distinguish Goudeau on the basis that (1) he asked for the court reporter in advance (2) he demonstrated a specific difficulty that arose because of the inability to read a portion of the testimony back to the jury (3) he demonstrated an interference with appellate rights by the difficulties involved in securing a settled statement and forgetting the detail of some of the testimony justifying an appeal. We believe that defense counsel has demonstrated that there are serious and unfair disadvantages to any defendant both at trial and upon appeal because of the lack of a reporter and that these bear disproportionately upon an indigent who is unable to afford a privately prepared transcript. However, the distinctions from Goudeau are not substantial and this court is constrained to follow this decision not only because we are legally subordinate but also because this is a problem involving a massive expenditure of public funds and a change in policy should properly be made by a court of a higher level.

Second, the defendant contends that the out-of-court statement of Salas should not have been admitted by way of impeachment because (a) there was nothing to impeach as Salas' testimony had mainly consisted of a string of 'I don't remembers,' and (b) it consisted of an opinion rather than a contrary statement of fact and (c) it was an inadmissible statement of opinion by a lay witness.

Salas' 'I don't remembers' were the typically evasive, equivocal and apparently mendacious declarations of a witness who has changed his mind. The court was justified in considering them 'implied denials' of the testimony of the officers as to Moreno's behavior on the porch and also implied denials of his stated reasons for calling the officers and complaining to them at the scene and thus to permit his out-of- court statement by way of impeachment (People v. Petersen, 23 Cal.App.3d 883, 100 Cal.Rptr. 590; People v. Green, 3 Cal.3d 981, 92 Cal.Rptr. 494, 479 P.2d 998).

It is not material that the out-of-court statement was made in the form of an opinion rather than a simple statement of fact. Wigmore on Evidence discusses the whole subject very well in the 1970 edition at section 1041.

He upholds the obvious logic of permitting the use of an out-of-court opinion statement of a witness where it carries an Implied assertion of fact contrary to his testimony in court.

A California court has given the same answer in State v. Stevenson, 5 Cal.App.3d 60, 84 Cal.Rptr. 742. In a condemnation case the expert testified as to value of the Subject property and supported his opinion by quoting sales prices of certain comparables.

On cross-examination he was asked as to whether or not he had not, out of court earlier, expressed an opinion as to a much higher value for one of the comparables.

Opposing counsel objected by reason of Evidence Code section 822 which states that inadmissible in evidence are opinions as to values of Non-subject properties.

The court held that where the purpose is to impeach the credibility of the expert's testimony his out of court opinion evidence, to the contrary, may be introduced.

The statement once admitted may be used for the truth of the matter stated therein (California v. Green, 399 U.S. 149, at p. 161, 90 S.Ct. 1930, 26 L.Ed.2d 489). It is not material that the statement is out-of-court and hearsay because the declarant was in court available for cross-examination, and in fact, favorable to the defense (California v. Green, supra, 399 U.S. at p. 149, 90 S.Ct. 1930).

The fact that the statement was in the form of an opinion that 'Moreno provoked the incident' does not make it inadmissible because of the modern trend toward the admissibility of factual conclusions of lay witnesses phrased in the form of opinions.

Modern rule of admissibility of opinions: If the facts cannot be accurately or adequately stated so that the lay witness can only testify to what he...