Filed 4/10/13 P. v. Rock CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E054255
v. (Super.Ct.No. FVA901525)
JACOB AARON ROCK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Dwight W. Moore,
Judge. Affirmed.
Janice R. Mazur, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Peter Quon, Jr., and Susan
Miller, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
In this case, the prosecution and the defense presented radically different versions
of the events that occurred at a party in Fontana in August 2009. It appears the jury
generally accepted the defense version, finding defendant Jacob Aaron Rock guilty only
of a lesser misdemeanor offense of assault on a police officer (Pen. Code, § 241,1 subd.
(c)) rather than the charge of assault on a police officer with a deadly weapon (§ 245,
subd. (c)) in count 1, found not true the allegation of great bodily injury as to that count
(§ 12022.7), and voted 11 to 1 and 10 to 2 in favor of acquittal on two additional counts
of resisting executive officers (§ 69).2 Defendant contends the trial court erred in
refusing to instruct the jury with his requested instruction on willful destruction of
evidence. We agree that the trial court abused its discretion by failing to impose an
appropriate sanction in the event the jury made a factual finding of willful destruction of
evidence; however, we find the error harmless, and we affirm.
Defendant Jacob Aaron Rock appeals from his conviction of misdemeanor assault
on Police Officer Shane McCoy (§ 241, subd. (c)) as a lesser included offense to the
charge of assault on a police officer with a deadly weapon (§ 245, subd. (c)).3 Defendant
1 All further statutory references are to the Penal Code.
2 The trial court dismissed those counts on the People‟s motion under section 1385.
3 The jury found not true the allegation that defendant inflicted great bodily injury (§ 12022.7) was hung on two additional counts of resisting executive Officers McCoy and Buddy Porch (§ 69). The jury votes on those counts were 11 to 1 and 10 to 2 in favor [footnote continued on next page]
2 contends the trial court erred in refusing to instruct the jury with a requested instruction
on willful destruction of evidence. Although we agree the trial court failed to instruct the
jury properly on willful destruction of evidence, we find the error harmless and we
therefore affirm.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
About 1:00 a.m. on August 30, 2009, Fontana Police Officers Martin Diaz and
Ancona were dispatched to a residence in Fontana in response to a “loud noise party
call.” The property contained corrals and several outbuildings in addition to the
residence. When they arrived, Officer Diaz heard loud music and he heard a woman
scream, “Help.” They saw 400 to 500 people at the party, many of whom were wearing
baggy clothes and appeared to be intoxicated. Officer Diaz saw two men who were
bleeding from their faces, and he saw one of the men punch the other. He assumed
everyone was armed. He yelled, “„Police. Party‟s over. Everybody needs to go home.‟”
People started running in every direction, and some guests began yelling profanities at the
officers. A group of people surrounded the officers and backed them up against a wall.
Officer Diaz radioed in a request for emergency assistance. Bottles, cans, and rocks were
thrown at the officers, and Officer Diaz was hit in the chest with a full beer bottle. He
[footnote continued from previous page] of acquittal, and the trial court dismissed those counts on the People‟s motion under section 1385.
3 drew his gun and arrested the person who had thrown the bottle. He never had any
contact with defendant.
Officer Shane McCoy arrived in response to the request for assistance. He
estimated there were “at least 200 people” at the party. He could hear Officer Diaz
yelling “get back” and “stop resisting.” As Officer McCoy pushed his way through the
crowd to get to Officers Diaz and Ancona, a man pushed him, and Officer McCoy struck
the man in the face with his elbow, causing the man to fall down. Officer McCoy parted
the crowd a little, and he saw Officers Diaz and Ancona struggling with a subject on the
ground while a group of men surrounded the officers and advanced on them; some were
throwing beer bottles.
Officer McCoy yelled at the crowd to get back, but they did not obey. About four
men advanced toward him, and he believed they were going to attack him, so he swung
his flashlight at them and struck several of them. The men backed up a few feet, and
Officer McCoy radioed for backup. A man knocked the flashlight out of the officer‟s
hand and put both of his hands around the officer‟s neck. Officer McCoy kneed the man
in the midsection.
Defendant approached, and Officer McCoy told him to get back. Defendant said,
“„I ain‟t doing nothing,‟” and continued to walk quickly toward the officer. Officer
McCoy struck defendant‟s chest with his elbow and forearm, and defendant stepped back.
Defendant then advanced on the officer swinging his arm at him. Defendant was holding
a rock, and he hit the officer on the bridge of the nose. Defendant again advanced on
Officer McCoy, but another man in the crowd attempted to block his path. Officer
4 Buddy Porch arrived, and Officer McCoy told him they needed to take defendant into
custody.
Defendant ran to the back of the property, and Officer McCoy followed him but
was blocked by another man who refused to move when told to. Officer McCoy struck
that man with his baton, causing him to fall down. Officer McCoy saw Officer Buddy
Porch tackle defendant, and he saw defendant struggling with several other officers.
Defendant was on the ground kicking at the officers and trying to get up. Officer McCoy
struck defendant‟s upper body with his baton, and the other officers handcuffed him.
Officer Porch arrived at the party and saw Officer McCoy with blood on his face
pointing toward defendant. Officer McCoy said defendant had hit him. Defendant was
running away from the area, and Officer Porch followed him. Defendant punched
Officer Porch in the face, and the officer punched him back. Defendant fell to the
ground.
Officers Shannon Van der Kallen and Erik Savage testified they saw defendant hit
Officer McCoy in the face. Officer Van der Kallen had not seen Officer McCoy do
anything to defendant before that. While trying to apprehend defendant, Officer Van der
Kallen struck defendant two or three times with his flashlight, kicked him two or three
times, and struck him in the face with his fist. Officer Savage testified that after
defendant struck Officer McCoy, defendant lunged at Officer Porch and punched him in
the face. Officer Savage kicked defendant while defendant was on the ground because
defendant was resisting arrest.
5 K-9 Officer Katie Beebe saw defendant on the ground struggling with other
officers. She told him to stop resisting, and when he refused, she unleashed her dog at
him and commanded the dog to bite. The dog bit defendant several times, and the
officers gained control of defendant. As soon as they handcuffed him, she called off her
dog.
Officers Diaz, McCoy, Van der Kallen, Beebe, and Porch did not see any
witnesses trying to record the events with recording devices and did not see any officer
remove a recording device from a civilian.
It was stipulated that it was police department policy to book into evidence any
cell phone or camera found at the scene, and no such devices were booked into evidence
in this case.
After his arrest, defendant told Officer Nicholas Sadler he drank three or four
beers that night. A recording of the interview was played for the jury. Defendant
admitted he had swung at an officer to defend himself after the officer came at him with a
baton. He denied he had used a rock or any other object. Officer Sadler testified
defendant‟s eyes were red, bloodshot, and watery, and his speech was slurred. The
officer believed defendant was under the influence of alcohol.
6 B. Defense Evidence
Maria del Carmen Casillas4 testified she had known defendant since he was a
child; he was not violent and was respectful of authority. On August 30, 2009, she
attended a baptism party for her grandchildren in Fontana. About 300 guests of all ages
from infants to elderly persons had attended the party, but by midnight when the party
was winding down, only about 60 guests remained, and people were starting to clean up.
No one was dressed in baggy gang-banger clothing. Although alcoholic beverages were
served at the party, no one seemed to be out of control with their drinking. Private guards
provided security at the party.
Shortly after midnight, a scuffle occurred when two men pushed each other. A
few minutes later, about 40 police officers ran in and started shoving people, knocking
them to the ground, and hitting them. Maria heard the officers say things like, “„Stupid
Mexicans.‟” She did not see anyone throw anything at the officers or act aggressively.
Officers fired rubber bullets at Maria, her daughter, and other guests. Maria saw one of
her sons and defendant run toward the corral, and an officer knocked them down.
Defendant put his hands out and pushed an officer to get around him; the officer punched
defendant in the face, and defendant fell to the ground. Maria‟s son, Dorian Casillas, got
between defendant and the officer, and officers knocked both of them over. While
defendant was on the ground, an officer sat on him and hit him in the face. Defendant
was turned over, and another officer hit him. Officers kicked him after he was
4Because several witnesses share last names, we will refer to them by their first names for clarity and convenience, and not intending any disrespect.
7 handcuffed and lifted him by his arms and dropped him. A police dog was released on
Dorian and defendant. Defendant was very beaten up and had a lot of blood on his face.
Maria saw several people videotaping the events. A police officer came up behind
a woman who was recording the police hitting a man on the ground, and the officer took
the video recorder, put it in a nylon bag, and took it with him. Maria‟s daughter-in-law
was also recording the officers who were beating defendant, and another officer took her
camera and threw it on the ground. Maria‟s son, Jonathan Casillas, was holding his cell
phone high in front of him in the direction where defendant was being handcuffed, and a
police officer knocked the phone out of his hand. The phone broke, and the officer took
it and did not return it.
Raven Lapetina testified he had been with defendant at the party the whole time.
It was a family party, and they were not intoxicated. No alcohol was served after about
midnight or 12:30, and only about 50 people were left at the party. Some people were
cleaning up. A small scuffle occurred between two people, and a few minutes later,
about 30 police officers came running in and started shooting beanbag guns.
A blond-haired officer sprinted toward defendant, grabbed him by the shoulders,
and hit him with his knees in the back, slamming defendant into a wall. Defendant,
whose back had been to the officer, started to turn around, and he swung, hitting the
officer in the nose. Another officer ran up to Lapetina, hit him in the chest with a
shotgun, and told him to get back. After defendant hit the blond officer, another officer
slammed defendant to the ground and hit him. Another officer got on top of defendant
and hit him with his knees. The two officers continued kneeing defendant on his neck,
8 shoulders, and head. A police K-9 was on top of defendant, biting him on the neck.
Lapetina did not see defendant fight the officers; defendant was lying face down on the
dirt screaming. Lapetina did not see anyone throw bottles, cans, or rocks at the officers,
and he did not see a rock in defendant‟s hand when he hit the blond officer. Lapetina saw
Jonathan Casillas using a cell phone to record the encounter and the dog attack when an
officer came up and slammed the phone out of Jonathan‟s hand. The officer smashed the
phone and kept stepping on it. Another officer hit a phone out of a person‟s hand with a
baton when the person was pointing it toward the activity involving officers and
defendant. Lapetina saw officers picking up cell phones and recording devices from the
ground and putting them in a bag. Defendant had bruises and injuries to his face and
torso that remained visible for three or four weeks.
Viviana Ortega was at the party with several family members, including her
children. She did not know defendant. She saw 10 or 15 police officers arrive, and she
saw Jonathan recording events with a cell phone. An officer approached Jonathan and
slapped the phone to the ground. She heard Jonathan yell that the phone was broken and
asked if anyone else had a phone. She did not know Jonathan before the event.
Coral Ortega attended the party with several relatives, including four young
children. She did not know defendant. About 250 or 300 people had attended the party,
but by the time the officers arrived, the party was winding down, people were cleaning
up, and only about 100 people remained. Alcohol was served, but it was a family event;
no one was belligerently drunk, and no one was wearing baggy clothing. Like other
witnesses, she testified there had been a scuffle shortly before the police arrived. She
9 saw two officers walk toward the back of the party, and then she saw 8 to 11 officers with
rifles. She did not see anyone throw anything at the officers or act aggressively toward
them. Coral‟s husband had gone into a Porta-Potty, and when he came out, he was shot
with a Taser, fell to the ground, and then was beaten. An officer put a gun to Coral‟s
head when she tried to go to her husband and told her to get out of there. Coral was
holding her four-year-old child when that occurred. She saw three recording devices
being used, but she did not know the people doing the recording. She did not see any
officer take recording devices or cell phones away from the people. Jonathan showed her
his cracked cell phone.
Luis Chavez, a friend of defendant, was a guest at the party. People were
drinking, but no one was out of control. By 12:30 a.m., the party was winding down;
about 80 people were still there. A fight took place between two men, but the
participants were kicked out and it was quickly over. A few minutes later, a few officers
arrived, and shortly after that, about 30 officers swarmed in, running toward the party and
pushing people out of the way. Chavez did not see anyone acting aggressively toward the
police or throwing anything at them. He saw a tall blond officer approach defendant,
who was talking with friends, and grab him by the shirt and push him away. Defendant
put up his hands. The blond officer grabbed defendant, tossed him to the ground, got on
top of him, and started hitting him. Two or three more officers began hitting defendant
with hands and batons, while defendant was face down on the ground with his hands
covering his head. Chavez saw a man using a cell phone to record the events, and an
10 officer told the man to put the phone away or the officer would take it away. The man
complied.
David Caldera worked as a security guard at the party. He was not acquainted
with defendant. About 300 or 350 guests, including children, had attended the party.
Around midnight when Caldera left, about 280 guests remained. People were drinking
but they were not acting intoxicated.
Michael Carrier testified that he was a friend of defendant‟s family, and he knew
defendant to be “a very humble, loving kid, very respectful.”
Maribel Davis testified she worked with defendant and was his friend. She knew
him to be a truthful, nonviolent person who was respectful of authority.
C. Rebuttal Evidence
The police dispatch log showed that 42 officers had responded to the party scene,
but the officers had not all arrived at the same time.
An expert witness testified that officers are trained to order persons to put things
down or to take steps to prevent objects from being thrown when items are thrown at
them. The level of force is up to the officer and depends on the situation. Witnesses
have a right to record police actions, and officers are not trained to knock recording
devices out of witnesses‟ hands unless there is a threat the devices will be used as
weapons against the officer. Based on reports of persons at the party throwing bottles
and other items, it would be consistent with department policy for officers to knock
items, including cell phones or cameras, out of peoples‟ hands. Officers are not trained to
11 stomp on recording devices or to seize and remove items. If an officer picked up a
recording device to prevent it from being thrown, it should be booked as found property.
D. Verdict and Sentence
The jury found defendant guilty of misdemeanor assault on a police officer (§ 241,
subd. (c)) as a lesser included offense to the charge of assault on a police officer with a
deadly weapon (§ 245, subd. (c)). The jury found not true the allegation that defendant
inflicted great bodily injury (§ 12022.7) and was hung on two additional counts of
resisting an executive officer (§ 69). The trial court invited the prosecutor to converse
with the jury after the jury was discharged, and the prosecutor thereafter represented to
the court that the jury votes on those counts had been 11 to 1 and 10 to 2 in favor of
acquittal. The trial court dismissed those counts on the People‟s motion under section
1385.
The trial court sentenced defendant to serve 180 days in jail.
III. DISCUSSION
Defendant contends the trial court erred in refusing to instruct the jury with a
requested instruction on willful destruction of evidence.
A. Additional Background
Defense counsel requested the trial court to instruct the jury on willful destruction
of evidence as follows: “If you find that any police officer intentionally and willfully
attempted to suppress material evidence by destroying cell phone or video recording of
the officers‟ conduct and actions at the August 30, 2009 party at 15765 Santa Ana
Avenue in Fontana, you must presume that the destroyed evidence would have shown
12 that the police officers were not lawfully performing their duties at the party and were
instead using unreasonable or excessive force. If you find that any police officer
destroyed this type of evidence, this alone can create a reasonable doubt about
[defendant‟s] guilt on all charges.”
The trial court stated it would not give that requested instruction but instead
instructed the jury as follows: “„If you find any police officer intentionally, willfully
destroyed any cell phone or video camera in this case, you may consider that evidence in
determining whether or not there‟s a reasonable doubt to the defendant‟s guilt on all
charges.‟”
B. Standard of Review
Defendant‟s proposed instruction addressed a factual issue raised by the evidence:
did police officers deliberately destroy potentially exculpatory evidence. We review de
novo whether the trial court properly instructed the jury on that issue. (People v. Gurule
(2002) 28 Cal.4th 557, 659.)
Defendant‟s requested instruction also proposed a remedy in the event the jury
found such destruction of evidence: a presumption of unlawful performance of official
duties and an instruction that deliberate destruction of evidence could create a reasonable
doubt. We review for abuse of discretion the remedy the trial court selects for destruction
of evidence. (People v. Zamora (1980) 28 Cal.3d 88, 99 (Zamora).)
13 C. Analysis
1. Duty to Instruct
“A trial court must instruct the jury, even without a request, on all general
principles of law that are „“closely and openly connected to the facts and that are
necessary for the jury‟s understanding of the case.” [Citation.] In addition, “a defendant
has a right to an instruction that pinpoints the theory of the defense . . . .‟” [Citation.]”
(People v. Hovarter (2008) 44 Cal.4th 983, 1021.) However, “[t]here is no requirement
that the jury be instructed in the precise language requested by a party. [Citation.]”
(People v. Kegler (1987) 197 Cal.App.3d 72, 80.) And it is not error to refuse to give a
proposed instruction if other instructions adequately addressed the same point. (See, e.g.,
People v. Zamudio (2008) 43 Cal.4th 327, 361.) We will therefore focus on the adequacy
of the instruction the trial court actually gave.
2. Obligation to Preserve Evidence
Law enforcement agencies have a constitutional obligation to preserve evidence
“that might be expected to play a significant role in the suspect‟s defense.” (California v.
Trombetta (1984) 467 U.S. 479, 488, fn. omitted.) To fall within the scope of this duty,
the exculpatory value of the evidence must be apparent before the evidence was
destroyed, and the evidence must “be of such a nature that the defendant would be unable
to obtain comparable evidence by other reasonably available means.” (Id. at p. 489.) A
failure to preserve evidence done in bad faith constitutes a due process violation.
(Arizona v. Youngblood (1988) 488 U.S. 51, 58.
14 Unlike in Zamora, where it was undisputed that the city attorney‟s office had
destroyed records of complaints against police officers (Zamora, supra, 28 Cal.3d at pp.
96-97), the evidence in this case was controverted: five eyewitnesses testified on
defendant‟s behalf that they had seen police officers destroying cell phones or recording
devices or ordering civilians not to use them; whereas, the police officers testified they
had not seen anyone using cell phones or recording devices and had not seen such
devices being destroyed. Thus, the evidence presented a question of fact as to whether
police officers destroyed material evidence. (People v. Hovarter, supra, 44 Cal.4th at p.
1021.) Both defendant‟s requested instruction and the instruction the trial court actually
gave properly left that issue to the jury.
3. Adequacy of Sanction
The second issue presented was the appropriate sanction if the jury found a due
process violation had occurred. In Zamora, supra, 28 Cal.3d at page 99, our Supreme
Court held that the trial court has discretion to select an appropriate remedy. In that case,
citizen complaints against police officers had been destroyed, but the trial court found
that the destruction of the complaints had not been in bad faith and refused to impose
sanctions on the prosecution. (Id. at pp. 93-94.) The Supreme Court reversed, and in
doing so, identified three factors for determining the proper sanction for destruction of
evidence. First, the court considered “„the particular circumstances attending [the] loss or
destruction,‟” and noted that if the destruction was lawful and proper, no sanction was
warranted, but if the destruction was illegal and malicious, dismissal of the action might
be appropriate. (Id. at p. 100.) Second, the court noted that “the sanction depends on the
15 materiality of the evidence suppressed.” (Ibid.) Finally, the court stated that in imposing
a proper sanction, “the courts must consider the impact of the sanction upon future cases
and future police conduct.” (Ibid.) Applying those principles, the court fashioned a
remedy that addressed specifically the evidence lost to the defendant: “[U]pon remand of
this case, the court should instruct the jury that [the officers] used excessive or
unnecessary force on each occasion when complaints were filed against those officers,
but that the complaint records later were destroyed. The court should also instruct the
jury that [it] may rely upon that information to infer that the officers were prone to use
excessive or unnecessary force [citation] and that the officers‟ testimony regarding
incidents of alleged police force may be biased. [Citation.]” (Id. at pp. 102-103, fn.
omitted.)
Similarly, in People v. Wimberly (1992) 5 Cal.App.4th 773, 793, the court
approved an instruction to the jury that it “may” draw an adverse inference from
destruction of evidence, and such adverse influence “may be sufficient to raise a
reasonable doubt” as to certain counts. In that case, the trial court found the evidence had
been destroyed under an existing policy, in violation of a discovery order, but not in bad
faith. (Ibid.)
Here, the trial court instructed the jury that if it found police officers had willfully
destroyed a cell phone or video camera, the jury could “„consider that evidence in
determining whether or not there‟s a reasonable doubt to the defendant‟s guilt on all
charges.‟” Such evidence was material, because the defense to all the charges was that
the officers were not lawfully performing their duties and were using excessive force. In
16 our view, that instruction imposed no meaningful sanction for a due process violation—
even without that instruction, the jury could, of course, consider the police conduct,
among all the other evidence, in determining whether the People met their burden of
proving defendant‟s guilt beyond a reasonable doubt. The trial court‟s instruction did not
inform the jury that it could draw an adverse inference from willful destruction of
evidence (see Zamora, supra, 28 Cal.3d at pp. 102-103) or that such inference could be
sufficient to raise a reasonable doubt as to defendant‟s guilt (see ibid.; see also People v.
Wimberly, supra, 5 Cal.App.4th at p. 793). Thus, the trial court‟s instruction failed to
consider “the impact of the sanction upon future cases and future police conduct.”
(Zamora, supra, at p. 100.) We conclude the trial court‟s instruction was an abuse of
discretion.
D. The Error Was Not Prejudicial
The People argue the instructional error is reviewable under the standard of People
v. Watson (1956) 46 Cal.2d 818. However, in People v. Yeoman (2003) 31 Cal.4th 93,
126, the court assumed the People‟s loss of original photographs implicated the
defendant‟s due process rights, and the error was therefore reviewable under the standard
of Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (See also Zamora, supra,
28 Cal.3d at p. 104, fn. 11 [“[S]ince suppression of evidence constitutes a violation of a
defendant‟s due process rights [citations], it would appear that the proper test to be
employed here is that enunciated in [Chapman] for errors of a constitutional nature.
[Citation.]”].)
17 We nonetheless conclude the error was not prejudicial even under Chapman. As
noted, defendant was convicted only of misdemeanor assault on a police officer as a
lesser included offense to count 1. That count was based on defendant striking Officer
McCoy in their initial encounter. However, none of the defense witnesses testified there
was anyone recording the events when Officer McCoy first encountered defendant;
rather, the witnesses testified the recording was taking place when defendant was already
on the ground being kicked and beaten by the officers, being attacked and bitten by the
K-9, or being handcuffed. Thus, based on the record before us, even if the trial court had
instructed the jury it could draw an adverse inference that could lead to a reasonable
doubt as to defendant‟s guilt if the jury found the officers had destroyed evidence, the
instruction would not have been relevant as to count 1.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
MCKINSTER J.
CODRINGTON J.