C.A. 3rd
C064377

The Third Appellate District reversed a judgment of conviction. The court held that a defendant’s past violent encounters with police officers were not relevant to show the defendant’s ability to distinguish between a police officer and a security guard in dim lighting and after being pepper sprayed in the face.

Richard Hendrix fought with a security guard at an apartment complex. The security guard twice sprayed Hendrix in the face with pepper spray. Hendrix hid himself on the premises. City police officers and additional security guards were called to the scene. They found Hendrix and chased after him. Three police officers ultimately apprehended Hendrix. Hendrix fought back against one of them.

Hendrix was charged with resisting an executive officer by use of force or violence in the performance of his duty in violation of Penal Code § 69.

At jury trial, Hendrix did not dispute having fought back, but contended he did not know the person he was fighting with was a police officer, and not just a security guard. He argued that he was heavily intoxicated at the time, it was dark out, and he had just been sprayed in the face with pepper spray. All of these factors, Hendrix argued, interfered with his ability to see and identify the officer. Two witnesses testified that pepper spray could adversely affect vision. None of the three officers could recall having verbally identified themselves as police officers. Their uniforms were dark blue; the security guards’ uniforms were black.

Over defense counsel’s objection, the trial court granted the prosecution’s request to introduce testimony regarding two prior incidents in which Hendrix fought with police officer. In the 1993 incident, Hendrix was allegedly intoxicated and causing a disturbance. Hendrix resisted when police officers arrested him and tried to place him in a police car. In the 2005 incident, Hendrix became involved in a domestic disturbance involving his sister and her boyfriend. When a police officer arrived on the scene and tried to arrest Hendrix, he resisted. When he was being transported to jail, Hendrix repeatedly threatened the officer who was driving, saying he would look up the officer’s address on the internet and come “get him.”

Hendrix was convicted.

The court of appeal reversed, holding that the trial court erred prejudicially in admitting the two prior incidents into evidence.

In order to convict Hendrix of resisting an officer, the prosecution had to show that Hendrix knew the person he was resisting was a police officer. At trial, Hendrix argued that he mistakenly believed the individuals who were trying to apprehend him were private security guards. In order to be admissible, the two prior incidents had to speak to Hendrix’s ability to distinguish between police officers and security guards.

The court found the two prior incidents were not sufficiently similar to the charged conduct to be of probative value. The prosecution sought to introduce the two prior incidents at trial to show Hendrix’s familiarity with the police. Because of the 1993 and 2005 incidents, the prosecutor argued, Hendrix should have recognized that he was dealing with police officers in the current incident. Not so, the court found. At issue in the current incident was not Hendrix’s ability to recognize a police officer, but his ability to differentiate between a police officer and a security guard in the dark, while intoxicated, after having been pepper-sprayed in the face, and when both wore dark blue or black uniforms. Neither of the prior incidents spoke to Hendrix’s ability to make such a differentiation under the circumstances presented.

Further, the court found, the knowledge supposedly gained by Hendrix from the 1993 and 2005 incidents regarding the appearance and behavior of police officers was nothing more than common knowledge. Hendrix did not need to have had those two violent encounters with police officers in order to know that police officers give verbal commands, use force when trying to arrest a noncompliant individual, and may attempt to place an individual’s arms behind his or her back for handcuffing. There was no need for the jury to hear inherently prejudicial other crimes evidence that evinced a propensity of violence toward the police to demonstrate Hendrix’s familiarity with widely understood and rudimentary concepts.

Finally, the court found, there was nothing in Hendrix’s 2005 postarrest verbal threats against the arresting officer that bore on the issue of whether Hendrix knew the person he was fighting against in the current incident was a police officer and not a private security guard.

The court found that because there was little, if any, probative value to the other crimes evidence, and because the tendency to condemn based on the proffered evidence was high, that whatever probative value the 1993 and 2005 incidents had was substantially outweighed by the prejudicial propensity effect of that evidence. The trial court erred in admitting the evidence.

The court concluded that the introduction of this irrelevant and nonprobative other crimes evidence was undoubtedly prejudicial. This prejudice was intensified by the prosecutor’s use of the evidence in closing argument.

Acting Presiding Justice Nicholson dissented, finding that the two prior incidents were relevant to show Hendrix’s experience, close-up and personal, with police officers. He was able to observe them, and he learned that they would use physical force on his body to detain him. Since these past experiences resulted in opportunities for Hendrix to know how to distinguish between security guards and police officers, they were highly relevant to the main point of contention at trial – Hendrix’s knowledge that he was resisting a police officer – and were properly admitted.