Case Summaries
February, 2007

Adoption of Written Vehicular Pursuit Policy
Immunized City and Police
From Pursuit Liability

ALCALA v. CITY OF CORCORAN, 147 Cal.App. 4th 666 (2007)

Jose Jesus Alcala, was injured severely in an accident resulting from a high-speed pursuit of a murder suspect initiated by Corcoran police officers. He ultimately died of his injuries approximately one year later. The family filed suit seeking recovery for personal injury and wrongful death, naming numerous parties as defendants, including both the city and the department. The City of Corcoran answered the complaint with a general denial and alleged a number of affirmative defenses, including the statutory immunity provided by California Vehicle Code section 17004.7 for public entities that have adopted a written policy governing vehicular pursuits.

The California Court of Appeal, Fifth Appellate District concluded that the trial court properly denied the motion for judgment on the pleadings, which was brought by Mr. Alcala’s family. The Appellate Court held that the City of Corcoran and the Corcoran Police Department were entitled to immunity under Vehicle Code section 17004.7, which grants immunity to public entities/agencies that have adopted a written policy governing vehicular pursuits.
                       

Inadequate Record of Pitchess Review
By Trial Court Garners Remand

PEOPLE v. GUEVARA, 148 Cal.App. 4th 62 (2007)

Selvin Guevara, who is six feet four inches tall and weighed approximately 270 pounds, slapped his girlfriend, Sheila Silva, during an argument at their house. He also threw a plastic lighter at her, striking her on the forehead. Silva called the police, and the responding officer observed swelling to her right eye. Guevara initially denied hitting Silva, but subsequently claimed that he had accidentally elbowed her in the eye while they were struggling over their infant child during an argument. He admitted striking Silva on the buttocks when she walked away with the child. Silva obtained a restraining order against Guevara. When Silva and her father went to Guevara's house to pick up some of Silva's property, Simi Valley Police Officers John Samarin and Larry Maher were at Guevara's house following up on an earlier domestic violence incident between Guevara and Silva. Officers Steve Prchal and Pat Zayicek were dispatched to the scene to help keep the peace while Silva recovered her property. As Silva and her father began moving property from a car in the driveway to Silva's father's car, Guevara came out of the house and demanded that Silva not take any of her property. Guevara yelled obscenities and tried to talk to Silva. Officer Samarin warned Guevara that he was in violation of the restraining order.

Guevara went back into the house, but returned to the front yard a few moments later and began yelling at Officer Maher. Officer Samarin advised Guevara that he could be arrested for violating the restraining order, but Guevara continued to yell obscenities. When Guevara began pacing in front of the house, Officer Maher grabbed him by the shirt and Officer Samarin advised him that he was under arrest. Guevara struck Officer Maher's arm to free himself, then jumped over a short fence and began running toward Silva. As he continued running down the street, all four officers pursued him. Guevara ignored demands to stop and raised his fists. Officer Samarin caught up with Guevara and struck him once on the left shoulder with his baton. Officer Maher then tackled Guevara and forced him to the ground. Guevara screamed, flailed his arms and legs, and tried to kick the officers as Officer Maher attempted to handcuff him. Officer Samarin struck Guevara's legs three times in an effort to subdue him, while Officer Prchal made two "distraction strikes" to Guevara's face. Guevara was ultimately handcuffed and placed in a patrol car, then transported to the hospital to obtain treatment for minor injuries to his face and lower right leg.

At trial, Guevara defended against the resisting charges on the theory that the officers had used excessive force in effectuating his arrest. Van Ness Bogardus, a former Los Angeles County Sheriff's deputy and law enforcement instructor, opined that the officers had used excessive force in arresting Guevara. Bogardus was not aware, however, that Guevara had been involved in prior incidents of domestic violence and had resisted arrest on a prior occasion. In rebuttal, Ventura County Sheriff's Sergeant John Miller testified to his opinion that the officers' use of force was reasonable under the circumstances and that the prior domestic violence incident was relevant to the officers' actions.

The jury convicted Guevara of misdemeanor battery against Silva, felony resisting an executive officer (Officer Maher), and misdemeanor resisting, obstructing, or delaying a peace officer (Officer Samarin). The jury acquitted Guevara on the charge of battery upon Officer Maher .

The California Court of Appeal, Second Appellate District (Division Six) noted that, in it’s original unpublished opinion, it rejected all of Guevara's claims and affirmed the judgment in its entirety.  However, it subsequently granted Guevara's petition for rehearing, and concluded that the matter must be remanded for a new Pitchess hearing.

The Appellate Court noted that it’s decision to remand was based on the fact that prior to trial Guevara moved for access to the confidential personnel records of the police officers involved in the case pursuant to Pitchess. The Court commented that in it’s original opinion, it indicated that it had reviewed the sealed transcript of the hearing and determined that the trial court did not abuse its discretion in concluding that Guevara was not entitled to any discovery. When Guevara petitioned for rehearing, on the ground that the opinion did not state the Court had actually reviewed the documents the trial court had examined in adjudicating the motion, a rehearing was granted.  As a result the Appellate Court now concludes that the matter must be remanded for a new hearing because the record is insufficient for it to determine whether the trial court properly exercised its discretion in denying discovery.

The Appellate Court noted that at the in camera hearing the custodian of records for the Ventura City Police Department stated under oath that none of the involved officers' personnel files contained any information that was potentially responsive to Guevara's discovery request. Accordingly, no documents from the personnel files were submitted to the court for review and, on that basis, the court determined that Guevara was not entitled to any discovery.  Where the file is not produced, the custodian of records must establish on the record what documents were reviewed and why they were withheld in order to have a record which can be reviewed on appeal.

Protective Sweep of Residence and Parole Search
of Residence Did Not Violate Fourth Amendment

U.S. v. Lopez, 474 F. 3rd 1208 (9th Cir.2007)

Hector Ruben Lopez, a suspected member of a California gang known as the Ontario Black Angels, had an outstanding warrant for his arrest because he had absconded from parole supervision. Glen Willett, then a Senior Special Agent of the California Department of Corrections, received information that Lopez was located at a residence in Ontario, California. During surveillance, Willett and Ontario Police Department officers observed Lopez’s mother and brother, Joe Martel, enter the residence. Martel was a known OBA gang member who was also on parole. After Willett and Ontario officers observed Martel, but not Lopez’s mother, leave the residence the officers approached the residence and knocked on the front door. Through a window in the door, Willett saw Lopez “peek around the corner from a hallway.” Willett ordered Lopez to open the door, but Lopez disappeared down the hallway out of sight. A few minutes after Willett and the Ontario officers unsuccessfully tried to force entry, Lopez opened the door and was arrested a few feet outside the front door. The officers saw Lopez’s girlfriend, Valerie Etchart, in the residence, ordered her outside the front door and also detained her.

The officers conducted a protective sweep of the residence, forcing entry into a back bedroom. In the hallway bathroom toilet, officers found an empty clear plastic baggy. After the residence was secured, the officers conducted a parole search of the residence. During the parole search, officers found plastic baggies containing methamphetamine and three handguns.

FBI Special Agent Volk interviewed Lopez, for a second time, about Lopez’s knowledge of the OBA, and advised Lopez that he “could be looking at serious federal time” unless he cooperated. Lopez refused to cooperate. Lopez was thereafter indicted by a federal grand jury for being a felon in knowing possession of firearms, in violation of 18 U.S.C. § 924(c), and for possession of methamphetamine with intent to distribute. Lopez filed a motion to dismiss the federal indictment, alleging that the federal prosecution was vindictive, in violation of his due process rights. He also filed a motion to suppress the evidence seized from the residence on Fourth Amendment grounds. The district court denied both motions.

Affirming the district court’s denial of Lopez’s motions, the United States Court of Appeals, Ninth Circuit noted that the FBI’s threat of “serious federal time” fell short of evidence of vindictiveness, stating that “a prosecutor, and presumably field officers too, may threaten a defendant with prosecution during an interview or plea negotiations, and if that defendant chooses not to cooperate or plead guilty, the prosecutor is free to initiate a prosecution.”

The Ninth Circuit pointed out that in a recent United States Supreme Court decision, the Court explained that for inmates who elect parole, the California parole-search statute mandates that a parolee “submit to suspicionless searches by a parole officer or other peace officer ‘at any time.’ ” This statute, the Supreme Court reasoned, served California’s interest in reducing recidivism, promoting public safety, and reintegrating parolees into productive society.

The Ninth Circuit concluded it’s opinion by stating that the record showed there was no legal error. “First, the district court properly denied Lopez’s motion to dismiss his indictment for vindictive prosecution. Second, we hold that under Samson, because the California parole-search statute governed Lopez’s parole, and Lopez signed a Notice and Conditions of Parole submitting himself and his residence to a warrantless, suspicionless search, neither the protective sweep nor the parole search in question violated the Fourth Amendment.”