People v. Reardon

• Decision Date: 24 August 2018
• Docket Number: C083482
• Citation: 26 Cal.App.5th 727,237 Cal.Rptr.3d 347
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Sean Patrick REARDON, Defendant and Appellant.

26 Cal.App.5th 727

237 Cal.Rptr.3d 347

The PEOPLE, Plaintiff and Respondent,

v.Sean Patrick REARDON, Defendant and Appellant.

C083482

Court of Appeal, Third District, California.

Filed August 24, 2018

Certified for Partial Publication.^*

Rachel Varnell, Los Gatos, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Craig S. Meyers, Deputy Attorney General, for Plaintiff and Respondent.

DUARTE, J.

Defendant Sean Patrick Reardon appeals from his conviction for resisting an executive officer ( Pen. Code, § 69 ),¹ arguing the officer's use of excessive force negated an essential element of that offense. In a related claim, defendant argues the trial court abused its discretion in denying his request to present the testimony of a use-of-force expert at trial.

As we explain, ample evidence supports the resisting count. Further, although the trial court excluded defendant's expert testimony for unsound reasons, defendant has not demonstrated prejudice. We remand with directions to address sentencing errors and correct the abstract of judgment but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We describe the facts surrounding use of force in some detail, as the officers’ use of force is the focus of both defendant's claims on appeal. As we will explain, defendant resolved three of the charges against him pretrial, proceeding to trial only on charges of evading ( Veh. Code, § 2800.2 ; count 1), resisting an executive officer ( Pen. Code, § 69 ; count 5), and misdemeanor hit and run ( Veh. Code, § 20002, subd. (a) ; count 6). He challenges only his conviction on count 5, resisting.²

Prosecution case at trial

On February 18, 2015, Officer Jack Ditty of the Chico Police Department was on patrol and saw defendant driving a blue Chevrolet Suburban and revving its engine. Leander Hutcherson was also in the Suburban with defendant. Ditty followed the vehicle and saw that it had a broken brake light and an expired registration. Ditty turned on his lights and sirens in order to initiate a traffic stop, but defendant accelerated and ran a stop sign.

After making several more turns, the vehicle pulled over and Officer Ditty called for backup, got out of his car, and pointed his handgun at the Suburban. Fearing that defendant had weapons or would drive off again, Ditty instructed, "Let me see your hands, stick your hands out the window." Defendant held his hands out of the window, but began yelling and screaming in a "b[izzare] kind of state of mind, or way." Suddenly, defendant pulled his hands inside the Suburban and drove away. Ditty got back in his patrol car and followed defendant, with his lights and sirens on. Defendant continued driving, ran a stop sign, and hit a black car. After approximately another two minutes of driving, he crashed into a parked car and stopped. Defendant got out of the Suburban and walked across the street. He was "screaming and acting b[izzare]," including yelling, " ‘You're not the police’ " and "a lot of unintelligible things." Ditty instructed defendant to get on the ground, but defendant continued walking away. Defendant's passenger Hutcherson, who was still in the Suburban, complied with Ditty's instructions to keep his hands up. Ditty was unsure if there was another passenger in the Suburban; he stayed alert but continued to monitor defendant.

As another officer (Wayne Rockwell) arrived to assist, defendant was repeatedly getting down on the ground, standing up, reaching in his pockets, and throwing things on the ground. Rockwell believed defendant posed a risk to officers and the public because he was "acting erratically" and "out of control." Further, defendant's Suburban posed a risk because it was still occupied and could be used to flee or as a weapon. Defendant continued to yell, move around, and disregard Officer Ditty's instructions to stay on the ground and keep his hands out of his pockets. Defendant began to walk "briskly" toward Ditty, which Rockwell interpreted as an aggressive attempt to approach and hurt the officers. Rockwell testified he told Ditty to "take him [defendant]."

Ditty then tackled defendant, grabbing his wrists in an unsuccessful attempt to control him. Defendant tensed up and grabbed Ditty by his vest near his armpit, pulling Ditty toward him. As defendant and Ditty struggled on the ground, defendant ripped off Ditty's radio microphone and shirt pocket. Defendant ignored Ditty's commands to let go. Ditty was afraid defendant had a weapon; he felt "vulnerable." When defendant tried to stand up, Ditty punched him three times in his side, in an attempt to loosen his grip. Defendant eventually let go and began flailing around on the ground as he screamed, with his hands near his waistband. Defendant seemed strong, and Ditty felt unable to get him under control.

Rockwell noted defendant could access Ditty's "tools" and feared he would hurt someone, so he intervened and wrestled with defendant, instructing him to stop resisting and show his hands. Rockwell inflicted three "distraction blows" to the side of defendant's head, in an unsuccessful attempt to secure his arm. Defendant continued to resist, keeping his hands toward his waistband and screaming "nonsense." Ditty had "exhausted the hands-on techniques" to subdue defendant, so he used his baton to strike defendant five times in the lower legs and once in the lower front torso, in an unsuccessful attempt at "pain compliance." Ditty felt threatened and wanted to handcuff defendant quickly, in part because defendant kept placing his hands in his waistband. Ditty had watched 50 to 75 videos of officers being shot, and "usually" the suspects pulled the gun from their waistband area. Rockwell agreed with that assessment. Ditty decided to use a baton instead of pepper spray or his Taser because there was less risk to the officers from the baton. Also, in Ditty's experience, the Taser was only a single-use weapon and was unreliable.

At this point, Officer Jeffrey Kozak intervened and grabbed defendant's left arm, enabling Ditty to handcuff him. He continued to resist, flailing his body around and kicking. The officers placed leg restraints on him, but he continued to struggle as the officers placed him in a police vehicle and put a spit hood on him. To Ditty, defendant appeared "really animated," as if he had taken a central nervous system stimulant.

After his arrest, defendant was transported to the hospital, where he was sedated. His blood-alcohol level was 0.14 percent. His urine screening was positive for amphetamine

, methamphetamine, cocaine, and cannabinoids.

Dr. John Whitman, who treated defendant the night of the incident, testified defendant was "very agitated" and conscious, but unable to answer basic questions. Defendant was "thrashing," and "a threat to himself and others." Although defendant showed signs of head trauma

, a CT scan revealed no fractures or internal bleeding. X-rays were negative for rib fractures. Defendant was admitted for acute delirium, which Dr. Whitman believed was substance induced.

Defendant also showed signs of severe dehydration. In sum, he had suffered minor traumas, scrapes, and abrasions; and a "severe altered mental status combined with severe agitation," due to illicit drug use. A video taken of defendant at the hospital was played for the jury; defendant is seen and heard yelling incoherently and unintelligibly, and is nonresponsive to questions and commands. Each of the three officers testified defendant's behavior during the video was similar to his behavior during the confrontation.

Ditty testified he had been a peace officer for over three years and had been trained on control techniques and his department-issued tools, including his baton. Rockwell testified he had been a police officer for 16 years and had training and experience with the use-of-force tools, including distraction blows. During the incident, his main concern was to "get [defendant] under control, and get him restrained," as defendant had already shown his "willingness to flee [and] to fight with officers." Rockwell believed force was necessary because defendant disregarded verbal commands and posed a serious threat. Defendant never punched, kicked, swung, or grabbed at Rockwell.

Both Ditty and Rockwell testified they never saw defendant with a weapon. Kozak, who had been a peace officer for seven years, testified he believed defendant posed a danger because he was disregarding the officers’ commands, struggling with the officers, and "screaming nonsense."

Officer Paul Ratto interviewed defendant on February 22, 2015. Defendant initially claimed he was the passenger but eventually admitted he was driving at the time of the crimes. Defendant told Ratto he was evading the police because he had an outstanding warrant. He said he initially stopped but accelerated again after five seconds, thinking this would increase his chances of getting away. He told Ratto he had sideswiped two cars and had been drinking that day. He stopped because his passenger (Hutcherson) was "freaking out" and asked him to stop. Ratto testified he had interacted with defendant before and thought it was out of character for defendant to be combative.

Civilian witness Brodie Beck was nearby and heard police officers yelling at defendant. Defendant started to run away, but then stopped. Beck watched defendant initially comply with the officers’ demands to get down on the ground, but then reach into his pants, although the officers told him not to move. Defendant stood up and approached the officers, and the officers tried to handcuff him. He pulled away and elbowed the officers. He eventually went to the ground, but he was still squirming, so the officers began hitting his legs and arms. He continued squirming and resisting for a few minutes and then stopped; the officers...