People v. Sibrian

• Citation: 3 Cal.App.5th 127,207 Cal.Rptr.3d 428
• Decision Date: 07 September 2016
• Docket Number: A143369
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Henry SIBRIAN, Defendant and Appellant.

3 Cal.App.5th 127

207 Cal.Rptr.3d 428

The PEOPLE, Plaintiff and Respondent,

v.Henry SIBRIAN, Defendant and Appellant.

A143369

Court of Appeal, First District, Division 1, California.

Filed September 7, 2016

Siri Shetty, under appointment by the Court of Appeal for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Laurence K. Sullivan and René A. Chacón, Supervising Deputy Attorneys General, for Plaintiff and Respondent.

Banke

, J.

INTRODUCTION

Defendant Henry Sibrian appeals from his conviction of resisting an officer in violation of Penal Code section 69

.¹ He contends the trial court erred, first, in allowing expert testimony on excessive force and, second, in precluding defense counsel from questioning one of the officers involved in his arrest about a pending civil lawsuit against the officer. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Shortly after 1:00 a.m. on October 21, 2013, Sheriff's Sergeant Joseph Buford observed defendant commit various traffic violations. As Buford turned on the flashing lights of his patrol car to initiate a traffic stop, defendant pulled over on his own because he had arrived at his house. Buford ordered defendant to get out of his car, but he refused. Additional deputies arrived, and defendant was wrestled out of the car and detained. During the struggle, defendant and two deputies were injured. The district attorney charged defendant with a single count of resisting an executive officer by the use of force or violence. (§ 69

.)

Sergeant Buford testified at trial that he first noticed defendant's car when he heard squealing tires. He followed the car about a mile as it ran two red lights and a stop sign and then pulled over and came to a stop on Sheryl Drive in San Pablo. Buford knew the neighborhood, as he had responded to “homicides, domestic violence, stolen vehicles, robberies, fights, [and] drunks” in the area. He drew his firearm at low ready² and ordered defendant to show his hands. Defendant stuck both hands out the driver's side window, along with the upper half of his body. Defendant was “slurring and rambling.” Buford could not understand him and believed he might be intoxicated.

Buford called for assistance, and Deputy Mitch Moschetti arrived almost immediately. Together, they approached defendant's car, and Buford opened the driver's side door. He ordered defendant “at least five or six times” to get out, but he refused. Defendant smelled of alcohol. He continued to ramble and was “gripping the steering wheel with two hands.” Both officers tried to pull defendant out of the car, but he “was flailing his body.” Although he suspected defendant was intoxicated, Buford did not conduct a field sobriety test and did not obtain a blood sample.

Deputy Moschetti testified he struggled with defendant for a few seconds, while telling him to stop resisting and get out of the car. Then he “delivered a closed fist strike” to defendant's right eye. He again tried to move defendant, but defendant grabbed Moschetti's arm and moved it “very forcefully.” Moschetti punched him in the right eye a second time.

Moschetti retrieved his Taser and told defendant to stop resisting or he would be tased. Defendant grabbed the Taser and tried to pull it from Moschetti's hand. Moschetti tased him in the stomach. By this time, another deputy, Michael Santos, had arrived, and he was able to pull defendant out of the car. Defendant's face and stomach hit the asphalt, and he landed flat on his stomach.

Now on the ground, defendant kept his right arm tucked underneath his stomach and kicked his legs. Moschetti told him to stop resisting and put his hands behind his back. After unsuccessfully trying to pull defendant's right arm out from under his body, Moschetti “delivered a closed fist strike to his right rib cage.” Defendant released his right arm, and Moschetti placed him in handcuffs. Defendant became “verbally aggressive” and spat blood on Santos.

Moschetti suffered cuts on his hands and bruises on his shins. Defendant also appeared to be injured. There was blood around his right eye and blood from his nose, and he had injuries on the left side of his head and on his right cheek.

Deputy Santos testified that when he arrived at the scene defendant appeared “aggressive” and was “actively resisting.” Defendant scratched Santos with his fingernails, inflicting a four inch gash on his forearm. After Santos pulled him from the car to the ground, defendant continued to struggle and kick. Another deputy arrived, and Santos, Moschetti, and Trinidad eventually got defendant under control and handcuffed. Defendant continued to be uncooperative—he yelled, failed to follow instructions, and spat a mouthful of blood on Santos's left arm. Santos suffered an open wound

on his left hand and wounds on his right hand and arm.

The prosecution also called George Driscoll, a senior inspector with the district attorney's office, whom the trial court permitted to testify as an expert “in the area of law enforcement training, law enforcement tactics, and law enforcement procedures regarding the use of force.” Driscoll had 34 years' experience in law enforcement, and has trained law enforcement officers in Fourth Amendment issues and use of force, including specific defensive tactics and methods to overcome resistance. He testified law enforcement officers have a responsibility to enforce the law, and when “they encounter resistance, they're not expected to retreat, they're expected to ensure compliance.”

The prosecutor presented a hypothetical scenario of an officer stopping a car for numerous traffic violations at 1:00 a.m. in a medium to high crime area. The prosecutor then questioned Driscoll about hypothetical officer conduct tracking the version of events described by Buford, Moschetti, and Santos. Driscoll opined the officers' conduct in the hypothetical scenario would not be inconsistent “with the industry standard.” For example, Driscoll testified when a suspect's unlawful driving threatens the public, an officer is expected to stop that threat by having the suspect stop and step out of the car. If the suspect refuses to leave his car, the officer is at a disadvantage because the suspect has “complete access to everything in the car, and ... maneuverability inside the car.” There could be a weapon in the car, or the suspect could start the car and flee. Driscoll opined if the suspect grips his steering wheel and refuses to get out, officers should attempt to grab his arm to break his grip and use a distraction strike only if they are unable to break the suspect's grip on the steering wheel. He explained officers oftentimes have chemical agents and Tasers “as part of their tool system on their belt.” The use of a chemical spray “probably wouldn't be a good choice for the officers to select” in the circumstances of the hypothetical because dispersal of the spray in the small area of the suspect's car could impair the officers.³ But if two distraction strikes are ineffective in removing the suspect's hands from the steering wheel, Driscoll opined use of a Taser would not be inconsistent with industry standard.

On cross-examination, Driscoll stated he had testified 12 times as an expert in the use of force by law enforcement officers. In each case, he concluded the use of force was consistent with industry standards. Revisiting the hypothetical scenario, Driscoll opined that if the first officer were to point his gun at the head of the suspect, that would not be consistent with industry standards. He was aware of Contra Costa County's policy that Tasers should not routinely be used when subjects are demonstrating passive resistance or are unresponsive.

Israel Herrera, defendant's landlord, testified for the defense. He saw defendant parked outside his house, with police cars behind him. An officer pointed a weapon toward defendant and told Herrera to stay back. Two more officers parked in front of the house. They started to hit defendant inside his car. Herrera never heard the officers telling defendant to get out of the car. “They pulled him out of the car, he was on the floor and then he was handcuffed.”

Defendant also testified. Around 10:30 p.m. the night of his arrest, he left work and went to a friend's house in Berkeley. He “might have had a couple of drinks.” (Later, he testified he had one 22–ounce beer.) Around 12:30 a.m., he left his friend's house and drove home. He did not run any red lights or stop signs, and did not notice a police officer following him. As soon as he parked, he saw police lights. An officer approached his window, pointed a gun at his face, and ordered him to put out his hands, which he did. Defendant “thought he was going to shoot.” Another officer arrived, and the two officers forced him out of his car. The officers never ordered him to exit the car. After he was handcuffed, he felt “a whole bunch of punches just coming in different directions, right, left, temple, jaw, the back of [his] head.” He felt a knee hit his eye, and he started yelling “police brutality.” Blood filled his mouth, and he spat it out because he could not breathe. He did not intend to get blood on anyone. Then he felt a burning sensation in his chest from a Taser. He was tased three times and taken to jail. From there, he was taken to a hospital, where he stayed from 2:00 a.m. to 5:30 p.m. Photographs showed marks from the Taser on defendant's chest, stomach, and shoulder.

Defendant denied holding on to the steering wheel, denied refusing to exit his car, and denied resisting the officers at any time. “It was like lamb to a slaughter. I gave myself completely to them and—[¶] ... [¶] I did every order they gave me.” He plans to file a civil lawsuit against Deputy Moschetti.

The jury found defendant guilty as charged. The trial court placed him on formal felony probation for three years, conditioned on serving...