People v. Mackreth

Filed 1/5/21 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046266
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1794019)

v. ORDER MODIFYING OPINION
AND DENYING REHEARING
TRISTAN MACKRETH,
[CHANGE IN JUDGMENT]
Defendant and Appellant.

BY THE COURT:
It is ordered that the opinion filed herein on December 9, 2020 be modified as
follows:
1. On page 2, first incomplete paragraph, the final sentence is replaced with the
following: “We reject these contentions. Defendant also seeks relief under Assembly
Bill No. 1950 (2019-2020 Reg. Sess.), which took effect on January 1, 2021. Because
defendant may be entitled to relief under that new legislation, we remand this matter to
the trial court for that court to consider his request in the first instance.”
2. On page 29, section V is deleted and replaced with the following:
“E. Assembly Bill No. 1950
On September 27, 2018, defendant was placed on court probation for
three years for his misdemeanor convictions. After we issued our opinion in
December 2020, defendant filed a petition for rehearing in which he sought relief
under Assembly Bill No. 1950 (2019-2020 Reg. Sess.), which did not take effect until
January 1, 2021. (Stats. 2020, ch. 328, § 1.) Assembly Bill No. 1950 amended Penal
Code section 1203a to limit to one year the length of a probationary period for a
misdemeanor conviction. (Pen. Code, § 1203a.) One court has held that this
amendment is retroactive to all nonfinal cases. (People v. Burton (Nov. 9, 2020
BR054562) ___ Cal.App.5th Supp. ___ [2020 Cal.App. LEXIS 1174].) The Attorney
General filed an answer to defendant’s petition for rehearing in which he argued that
this amendment is not retroactive because probation is not punishment.
Because our record does not reflect the current status of defendant’s probation,
it would be premature for us to consider this issue in the first instance. Instead, we
will remand this matter to the trial court for it to consider this issue if defendant
remains on probation.
V. DISPOSITION
The order of probation is reversed, and the matter is remanded to the trial court
with directions to consider defendant’s request for relief under Assembly Bill
No. 1950.”

This modification changes the judgment.
The petition for rehearing is denied.

Dated:_______________________ _____________________________
ELIA, J.

____________________________ ____________________________
GREENWOOD, P.J. BAMATTRE-MANOUKIAN, J.

2
Trial Court: Santa Clara County Superior Court
Superior Court No: B1794019

Trial Judge: Honorable Charles E. Wilson II
Honorable Allison M. Danner

Counsel for Plaintiff and Respondent: Xavier Becerra
THE PEOPLE Attorney General

Lance E. Winters
Chief Assistant Attorney General

Jeffrey M. Laurence
Senior Assistant Attorney General

Rene A. Chacon
Supervising Deputy Attorney General

Juliet B. Haley
Deputy Attorney General

Counsel for Defendant and Appellant: Gabriel Bassan
TRISTAN MACKRETH

People v. Mackreth
H046266
Filed 12/9/20 (unmodified opinion)
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, H046266
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. B1794019)

v.

TRISTAN MACKRETH,

Defendant and Appellant.

Defendant Tristan Mackreth was placed on court probation after he was convicted
1
by a jury of misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)), misdemeanor
vandalism (§ 594, subd. (b)(2)(A)), and misdemeanor being under the influence of
methamphetamine (Health & Saf. Code, § 11550, subd. (a)). On appeal, he challenges
only the resisting arrest conviction.
His principal contention is that the trial court prejudicially erred in instructing the
jury that he could be convicted of resisting arrest if he knew or “should have known” that
the person he resisted was a police officer. He asserts, based on this court’s decision in
In re A.L. (2019) 38 Cal.App.5th 15 (A.L.) that the crime of resisting arrest requires proof
of actual knowledge. We respectfully disagree with the decision in A.L. and decline to
follow it to the extent that it states that actual knowledge is required for a resisting arrest
conviction under section 148, subdivision (a)(1).
Defendant also makes other claims of instructional error, asserts that the trial court
prejudicially erred in responding to a jury inquiry concerning the mental state element of

1
All further statutory references are to the Penal Code unless otherwise specified.
the resisting count, and contends that the trial court erred in denying his Pitchess2 motion.
We reject his contentions and affirm the probation order.
I. THE PROSECUTION’S CASE
On August 17, 2017, just after midnight, Lisa Ward called 911 and reported that
she “was just hit by a car” and “run off the road” by another vehicle and that it “was an
intentional hit.” Ward told the 911 dispatcher that the other car was “chasing me” with
its lights off and then “totally sideswiped” her vehicle.
Sunnyvale Public Safety Officer Matthew Meyer was dispatched in response to
Ward’s call, which he understood to be reporting “a road-rage accident situation.” Meyer
arrived at the scene, which was outside a 7-Eleven, and he spoke to Ward and Arthur
Megoloff, a bystander. Ward told Meyer that a car had been following her car and then
3
had hit her car. She was very “upset and hysterical,” and “[i]t was difficult [for Meyer]
to get much information from her, but it seemed like someone purposefully ran her off
the road and rammed her car.” Ward “seemed very confused.”
Megoloff approached Meyer and told Meyer that the driver of the other car, a
“White guy,” “ran into 7-11.” Megoloff said: “The guy ran in the store and was stuffing
all kinds of shit down his pants.” He also told Meyer that the “guy” “was kind of
threatening manner to me . . . .” “I said, ‘Hey, are you okay?’ And he goes, ‘No.’ And
he, you know, went all nuts on me.” Megoloff told Meyer “there he is behind the
4
counter . . . in the red shirt.”

2
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
3
Meyer’s body-worn camera recorded the events that took place during his
response to this incident.
4
Megoloff testified at trial that he had seen defendant get out of one of the
vehicles involved in the collision. He approached defendant and asked if he was okay.
Defendant “kept saying ‘call the police.’” Defendant, who was “putting things down his
pants,” also told Megoloff that he should “get to stepping before I got hurt . . . .”
Megoloff, who understood this to mean that he “should be minding my own business,”

2
 Meyer was concerned that someone who “was stuffing things down his pants”
might have a weapon. As he approached the 7-Eleven, he could see clearly into the store.
Meyer saw defendant behind the counter, and he became concerned that “there’s a
possible robbery about to happen.” Meyer could also see the store clerk “dealing with a
customer.”
Meyer was wearing a “standard police uniform,” and his badge was “readily
apparent.” Before Meyer entered the store, he made eye contact with defendant, who
“immediately turned around and ran into the back store room.” The store room was
behind the register, and defendant slammed the door to the store room. Defendant’s
conduct enhanced Meyer’s concern that a robbery was afoot, and Meyer called for
backup “with lights and sirens,” which is a “heightened level of response.” When Meyer
then entered the store, he saw that the store clerk appeared “clearly afraid,” and the
customer looked “confused.” Defendant “re-appeared” with keys and “something else in
his hands,” which turned out to be a phone. Meyer drew his “tazer,” pointed it at
5
defendant, and yelled at him to “Get on the ground.”
Defendant, who looked “puzzled” and was “looking around kind of erratically,”
responded “Yes, sir” but was not immediately compliant. Defendant sounded “angry”
and “was displaying pretty clear signs of being under the influence of a stimulant.” His
eyes were wide, and he was looking around. He was very sweaty and “very fidgety.”
Defendant said “Hey, sh-show me your badge.” Meyer found this statement to be “kind
of a strange question given the scenario.” “[I]t seemed like there was a disconnect with
reality.” Defendant seemed to be “delusional,” and Meyer did not think that defendant

walked away and then, as Megoloff saw a patrol car approaching, defendant ran quickly
past him, again said “ ‘Call the police,’ ” and ran into the 7-Eleven.
5
Meyer testified that his taser was technically a conductive electrical weapon
(CEW) or stun gun.

3
believed he was a police officer. Defendant did not seem to “recognize the reality of
what was going on.”
Eventually, defendant got on the ground. Meyer told defendant “Do not move”
and “I will tase you if you move.” Despite this warning, defendant, who was just “feet
from” Meyer, “pops up,” and Meyer fired his taser at him. Defendant screamed and fell
to the ground. However, the taser shot affected defendant for only about a second. Taser
shots have “no residual effects,” so “once you’re off, it’s like you’re back to normal.”
Defendant got up and ran “towards the store clerk.” Meyer “pulled out [his]
baton” and struck defendant twice with it, but the blows had no impact on defendant’s
movement. Defendant jumped over the counter and approached the store’s front door.
Megoloff, who was standing at the front door, slammed the door on defendant as
defendant tried to go through it, which slowed but did not stop defendant.
Lieutenant Jonathan Griffith and Officer JW Carrell arrived to back up Meyer.
Both of them were wearing standard police uniforms and readily apparent badges.
Griffith arrived first, and he saw defendant “jumping over the counter” and pushing his
way out of the store’s door. Griffith understood that defendant was fleeing from Meyer,
and he deployed his taser at defendant outside the store. The taser shot incapacitated
defendant for only a second, so Griffith drew his baton.
Carrell, who had been told that he was responding to an assault with a vehicle,
arrived just after Griffith and saw defendant running out the store’s door and Griffith’s
ineffective taser shot. Carrell ran toward defendant, who was lying on his side on the
ground. Defendant “kicked up towards” Carrell, and Carrell kicked defendant in the legs
or upper body. Defendant quickly stood up, and Carrell got “tangled up” with defendant,
“fell backwards,” and ended up “rolling” on the ground with defendant as defendant “was
twisting, turning, [and] grabbing at anything he could . . . .” Griffith hit defendant’s
lower leg with his baton and fell onto defendant. Meyer joined them, and the three
officers struggled to gain control of defendant. Defendant “seemed very high, under the

4
influence.” Carrell pinned defendant against a tree, but defendant continued to resist.
Carrell yelled “stop resisting,” and punched defendant four times in the face, which had
no effect.
Meyer tried to grab defendant’s hands, but defendant was holding his hands
against his chest and “tensing up.” Defendant’s body was “tense and rigid,” and he was
trying to pull away from the officers. At one point, defendant grabbed Griffith’s baton,
but Griffith told him to let go and he did. Meyer “did a dry stun application” on
defendant’s shoulder, but there was no noticeable effect on defendant. The taser did
impact Carrell, who got shocked and fell off of defendant. However, they were then able
to handcuff defendant.
Once defendant had been handcuffed, he continued to “try to pull away and was
like wriggling,” but the officers employed no further force against him. The struggle
outside the store lasted less than two minutes. Meyer suffered an abrasion to his knee
during the struggle. Carrell suffered abrasions on his hands, elbows, and knee. Griffith
had abrasions to his elbow and hand and suffered an atrial fibrillation. Megoloff, who
was present during the entire encounter, “didn’t see any excessive type actions by the
police.”
Unbeknownst to the officers, prior to the struggle, defendant had called 911 from
the 7-Eleven and reported that he had been in a car accident. After defendant was
handcuffed, he was taken to the hospital, where he told a police officer that he had taken
a mixture of methamphetamine and PCP. Defendant’s blood was drawn that evening,
and methamphetamine, but not PCP, was found in his blood. The level of
methamphetamine in his blood indicated that he was under the influence of
methamphetamine at an “abuse level” at the time of the incident. A baggie of
methamphetamine was found in defendant’s car.
Methamphetamine may make a person “agitated” and result in “disorganized”
thoughts. At high levels, a person may become aggressive or even violent. The highest

5
levels may cause delusions, hallucinations, and paranoia. “Your cognitive function is
definitely impaired.” Reaction times can be very slow. The combination of
methamphetamine and “mental illness” can induce psychosis.
Defendant spoke with his sister from jail the day after the incident. He told her
“I thought they [were] fake cops.” He claimed that he was not resisting arrest because
“I was just scared that they were—that it was the fake cops.” “I didn’t know they were
real.” His sister asked him if he had “told them you’re bipolar,” and defendant said
“Yeah.” The following day, he was interviewed by the police, and he told them “I didn’t
believe they were actually real cops.” “I was obviously hallucinating. And I—I wasn’t
in my right mind. . . . if I knew that that—those were real cops, I wouldn’t have done
what I did.” He admitted that he had been “fighting with” the police officers.
These events were captured on video. 7-Eleven surveillance videos show
defendant entering the 7-Eleven, throwing an item behind the counter, obtaining a
cordless phone from the clerk, and then trying repeatedly to walk behind the counter as
the clerk repeatedly gestures to him not to do so. After that, as the clerk is conversing
with a customer who had come in after defendant, both the clerk and the customer
repeatedly look at defendant, who is holding the phone to his ear and gesticulating.
Defendant then disappears into a back room, and the clerk follows him, escorts him out
of the back room, and gestures to him to stay away from behind the counter. At this
point, a police vehicle with flashing lights can be seen driving up in front of the 7-Eleven.
Defendant again comes up to the clerk behind the counter before disappearing into the
back room just before Meyer enters through the front door.
The 7-Eleven surveillance videos also show Meyer entering the store and walking
through the store to near the door to the back room. Defendant then emerges from the
back room and encounters Meyer. The specifics of their encounter are not visible on the
surveillance video. Defendant is next seen suddenly running behind the counter and
nearly colliding with the clerk, as Meyer draws his baton and chases after him.

6
Defendant catapults himself over the counter and scrambles out the front door of the
7-Eleven, nearly running into Megoloff, who had briefly entered the store but exited as
defendant approached. The flashing lights of a second patrol car can be seen through the
front door of the store as these events occur. Meyer runs around the counter and out the
front door after defendant.
Meyer’s body-camera video shows Meyer entering the store, walking toward the
door to the back room, and encountering defendant. Meyer draws his taser and orders
defendant to get on the ground. Defendant does not immediately comply. Meyer repeats
his command several times, and defendant does eventually lie down on the ground.
Although Meyer tells defendant not to move or he will tase him, defendant suddenly hops
up and runs behind the counter with Meyer in pursuit. Defendant scrambles over the
counter and out the door.
II. THE DEFENSE CASE
Defendant testified that he noticed Ward’s car driving very slowly past his home
as he was about to go out to the 7-Eleven to buy snacks and beer. When he left his home,
he was behind Ward, who continued to drive very slowly. Defendant tried to pass her on
the right, and she swerved into him. He swerved in response, and the two cars collided.
Defendant pulled over, but Ward’s car kept going. He could not find his phone, so he
decided to go into the 7-Eleven to call the police and report the accident.
When Megoloff asked him if he was okay, he said “no” and “Call the police.”
He was “a bit upset,” “agitated,” and “confused,” but he denied that he said anything to
Megoloff that was threatening. He also denied stuffing anything down his pants. He did
feel that he was having a “breakdown” at that time. When defendant walked into the
7-Eleven, he asked the clerk if he could use the phone. The clerk told him that the phone

7
 6
was “in the back” so defendant “went in the back and got it” and called 911. He gave
the 911 dispatcher a false name, “Macbeth,” because he was afraid.
Defendant testified that, when Meyer arrived, he did not know that Meyer was a
police officer. “I honestly questioned whether he was a police officer. I didn’t believe he
was a police officer.” “I had just called the police and I was waiting for a more
professional approach by a police officer, not to tell me to get to the ground immediately
with a tazer pulled on me.” “I said ‘show me your badge’ because I didn’t believe he was
a police officer.” As to Griffith and Carrell, defendant testified that he “was still in
question to be honest” as to whether they were police officers. Defendant testified that he
did not hit, kick, or attack any of the officers. He claimed that he was “extremely afraid”
because he had been arrested a few weeks earlier “for something I didn’t do.” He
thought the officers were trying to hurt him, possibly fatally.
On cross examination, defendant explained that he did not believe Meyer was a
police officer because Meyer was rude to him. “I believe it could have been someone
impersonating a cop.” “Possibly. Because at the time, someone was arrested in
Daly City for impersonating a police officer, and I thought that possibly it was, who
knows, someone impersonating a police officer.” “I didn’t believe it was a real cop.”
Defendant claimed that he “did not see” Meyer’s badge or “utility belt.” He admitted that
he was able to hear Meyer’s commands. When asked why he obeyed Meyer’s command,
defendant testified: “Because he was holding a taser to me. I’ve—I suspected he was a
cop. Did I believe he was real? At the time, no.” He testified that he got up from the
7
ground because “I believed I was under attack, essentially, and even by the police.”

6
The 7-Eleven surveillance video showed that the clerk had handed a phone to
defendant, which defendant then used, long before defendant ever went into the back
room.
7
Meyer’s body-camera video showed that Meyer was stationary while defendant
was on the ground.

8
He was “having a breakdown” because he “felt under attack.” Defendant thought he
might have been drugged earlier in the evening when he was at a strip club. But he
testified that he did not feel high but only “was worried” at the time of the collision.
Defendant admitted he “resisted” the officers and that he “ran away” from Meyer.
He also admitted that he knew what police uniforms look like and that Meyer looked
“similar” to a police officer.
III. PROCEDURAL BACKGROUND
Defendant was charged with attempted robbery (§§ 212.5, subd. (c), 664) and
misdemeanor vandalism (§ 594, subd. (b)(2)(A)) for an unrelated July 28, 2017 incident
(which is not at issue on appeal) and assault with a deadly weapon (a car) (§ 245,
subd. (a)(1)), misdemeanor resisting an officer (§ 148, subd. (a)(1)), and misdemeanor
being under the influence of methamphetamine (Health & Saf. Code, § 11550, subd. (a))
for the August 2017 incident. It was also alleged that he had committed the assault while
released on bail (§ 12022.1) for the robbery charge. The on-bail allegation was
bifurcated.
The jury acquitted defendant of attempted robbery and assault with a deadly
weapon (and hung on the lesser included offense of assault), but it convicted him of
vandalism, resisting arrest, and being under the influence of methamphetamine. The
prosecution then dismissed the assault count. The court suspended imposition of
sentence and placed defendant on court probation with 440 days in jail, which was
deemed served. Defendant timely filed a notice of appeal.
IV. DISCUSSION
A. CALCRIM No. 2656: Mental State Element of Resisting Arrest
1. Background
Both the prosecution and the defense asked the court to instruct the jury with
CALCRIM No. 2656, the pattern instruction that describes the elements of resisting

9
arrest, and neither the prosecution nor the defense objected at the instruction conference
8
to any of the language in the pattern instruction.
The court gave CALCRIM No. 2656 as follows: “The defendant is charged in
Count Four with resisting, obstructing, or delaying a police officer in the performance or
attempted performance of his duties in violation of Penal Code section 148
[subdivision] (a). [¶] To prove that the defendant is guilty of this crime, the People must
prove that: [¶] 1. Officer Meyer, Carrell, or Griffith was a police officer lawfully
performing or attempting to perform his duties as a police officer; [¶] 2. The defendant
willfully resisted, obstructed, or delayed Officer Meyer, Carrell, or Griffith in the
performance or attempted performance of those duties; [¶] AND [¶] 3. When the
defendant acted, he knew, or reasonably should have known, that Officer Meyer, Carrell,
or Griffith was a police officer performing or attempting to perform his duties.
[¶] Someone commits an act willfully when he or she does it willingly or on purpose.
It is not required that he or she intend to break the law, hurt someone else, or gain any
advantage. [¶] A person who is employed as a police officer by the Sunnyvale
Department of Public Safety is a peace officer. [¶] A peace officer is not lawfully
performing his or her duties if he or she is unlawfully arresting or detaining someone or

8
Defendant’s trial counsel did request a voluntary intoxication instruction “with
respect to knowledge element for lawful performance of duties, 148.” “I guess my
position is it is a defense as to the resisting, obstructing, or delaying. The element of
knowledge . . . is one that this instruction touches upon.” He argued that “knowledge of
the fact that he’s a peace officer” was “a subjective element.” “I think that this
intoxication affected his ability to know that they were peace officers.” The court was
“reluctant” to give the instruction “without some case law support.” After the defense
was able to find only an “analogous case,” the court refused to instruct on voluntary
intoxication as a defense to resisting arrest. The court also told defendant’s trial counsel
that “you cannot say it has to be a reasonably [sic] intoxicated person, because that
appears to have no support in case law . . . .” The jury was instructed that “[v]oluntary
intoxication is not a defense to” resisting arrest, and the prosecutor told the jury that
voluntary intoxication was “not a defense” to resisting arrest and that “[b]eing under the
influence is not a defense . . . .”

10
using unreasonable or excessive force in his or her duties. Instruction 2670 explains
9
when an arrest or detention is unlawful and when force is unreasonable or excessive.”
The prosecutor argued to the jury that she had proved the mental state element of
the resisting count. “And when he acted he knew or reasonably should have known that
these officers were peace officer[s] performing or attempting to perform their duties.
Very easy. All three of these people are police officers. They testified to it and they
were dressed like it that night.” “But the standard here is also a reasonable person
standard. In that situation, what a reasonable person knows that these are officers. There
is an ‘or’ there in that element. The uniform and badge are apparent. It was obvious to
everyone else that this was a police officer.”
Defendant’s trial counsel argued to the jury that the prosecution had failed to
prove the mental state element of the resisting count. He told the jury: “So what this
case comes down to is what the district attorney can prove is in [defendant’s] head.
Intent in other words.” The defense did not dispute that defendant committed the acts:
“Clearly, as we saw in the video, [defendant] runs. Clearly [defendant] tenses up. I don’t
dispute any of that. We all saw that on the video. [¶] What the prosecution hasn’t
proved is that he actually knew, was that he knew these were peace officers.” “[W]hat
the district attorney must prove is that he knew these were peace officers. And you have
to ask yourself, how could he possibly have known that?” “[W]hen he’s asking the
officer for a badge—he doesn’t know that this is an officer . . . .” Defendant’s trial

9
The remainder of the instruction told the jury: “The People allege that the
defendant resisted, obstructed, or delayed Officer Meyer by actively disobeying lawful
orders by fleeing from Officer Meyer. The People also allege that the defendant resisted,
obstructed or delayed Officers Meyer, Carrell and Griffith by physically pulling away
from them and by kicking them. You may not find the defendant guilty unless you all
agree that the People have proved that the defendant committed at least one of the alleged
acts of resisting, obstructing, or delaying a police officer who was lawfully performing
his or her duties, and you all agree on which act he committed.”

11
counsel argued that the jury could consider whether defendant was suffering from a
“meth delusion” because “[t]his goes to the element of knowledge. You should consider
that in terms of whether he actually knew that they were peace officers . . . .” He
conceded that defendant was “very paranoid clearly, but he’s not trying to hurt anybody.”
“When he went inside and thought he was being attacked, he never tried to hurt the peace
officers. He never tried to attack them. He tried to run from them.”
The prosecutor challenged defendant’s trial counsel’s argument. “Defense counsel
tells you that you need to—it’s required that you believe—you believe that the defendant
actually knew that they were police officers. That’s actually not what the law tells you.
[¶] The law is that he knew, and based on his actions you can conclude that he knew, or
reasonably should have known. It is a reasonable person standard. Should he have
reasonably known considering the circumstances that these were officers.”
2. Analysis
Defendant contends that the trial court prejudicially erred in instructing the jury
with CALCRIM No. 2656 because this instruction permitted the jury to convict him of
resisting arrest if it found that “he knew, or reasonably should have known” that the
person he was resisting was a police officer. (Italics added.) He argues that section 148,
subdivision (a)(1) is not violated unless the defendant has actual knowledge that the
person he is resisting is a police officer. In his view, proof that a defendant “reasonably
should have known” that the person he was resisting was a police officer cannot support a
conviction for violating section 148, subdivision (a)(1).
A person commits resisting arrest under section 148, subdivision (a)(1) when he or
she “willfully resists, delays, or obstructs any public officer, peace officer, or an
emergency medical technician . . . in the discharge or attempt to discharge any duty of his
or her office or employment . . . .” (Italics added.) Defendant claims that the statute’s
use of the word “willfully” necessitates a conclusion that “actual knowledge” is required.

12
 Defendant’s argument presents an issue of statutory construction. We exercise de
novo review when we engage in statutory construction. (People v. Brewer (2011) 192
Cal.App.4th 457, 461.) “Statutory construction begins with the plain, commonsense
meaning of the words in the statute, ‘ “because it is generally the most reliable indicator
of legislative intent and purpose.” ’ [Citation.] ‘When the language of a statute is clear,
we need go no further.’ ” (People v. Manzo (2012) 53 Cal.4th 880, 885.) Where the
language of the statute is potentially ambiguous, “ ‘[i]t is appropriate to consider
evidence of the intent of the enacting body in addition to the words of the measure, and to
examine the history and background of the provision, in an attempt to ascertain the most
reasonable interpretation.’ [Citation.] We may also consider extrinsic aids such as the
ostensible objects to be achieved, the evils to be remedied, and public policy. [Citation.]
When construing a statute, ‘our goal is “‘to ascertain the intent of the enacting legislative
body so that we may adopt the construction that best effectuates the purpose of the
law.’ ” ’ ” (Id. at p. 886.) “It is a settled principle of statutory interpretation that if a
statute contains a provision regarding one subject, that provision’s omission in the same
or another statute regarding a related subject is evidence of a different legislative intent.”
(People v. Arriaga (2014) 58 Cal.4th 950, 960 (Arriaga).)
Application of the rules of statutory construction to section 148, subdivision (a)(1)
inescapably leads to a conclusion that the Legislature did not intend for its use of the
word “willfully” here to create a requirement of “actual knowledge.”
First, the word “willfully” is defined in the Penal Code, and its definition does not
encompass a requirement of actual knowledge. “The word ‘willfully,’ when applied to
the intent with which an act is done or omitted, implies simply a purpose or willingness
to commit the act, or make the omission referred to. It does not require any intent to

13
 10
violate law, or to injure another, or to acquire any advantage.” (§ 7, subd. (1), italics
added.) A “willingness . . . to commit the act”—resisting, delaying, or obstructing—does
not by itself incorporate a requirement of “actual knowledge.” “The elements of crimes
are of three varieties: actus reus, mens rea and attendant circumstances.” (People v.
Jiminez (1992) 11 Cal.App.4th 1611, 1624, fn. 7, disapproved on a different point in
People v. Kobrin (1995) 11 Cal.4th 416, 419.) Here, the act was resisting, delaying, or
obstructing, willfully was the mens rea, and the status of the victim was an attendant
circumstance. A “willingness to commit the act” does not require actual knowledge of
every attendant circumstance.
Second, the origins of California’s resisting arrest laws in the 1800s demonstrate
that the Legislature did not intend for the word “willfully” in section 148,
subdivision (a)(1) to require actual knowledge. In 1850, the Legislature enacted the
precursor to section 148. (Stats. 1850, ch. 99, § 92.) The 1850 resisting arrest statute
provided that the crime of resisting arrest occurred if “any person shall knowingly and
wilfully obstruct, resist, or oppose” an officer. (Ibid., italics added.) In 1860, the 1850
statute was amended to apply if “any person shall, knowingly and willfully, obstruct,
resist, or oppose” an officer. (Stats. 1860, ch. 156, § 1, italics added.) In 1872, the
Legislature enacted the original version of section 148 and also the original version of
section 69, which also proscribes a form of resisting arrest. The original version of
section 148 applied to “[e]very person who willfully resists, delays, or obstructs any
public officer, in the discharge or attempt to discharge any duty of his office.”
(1872 Pen. Code, § 148.) The original section 69, like the current section 69, applied to

10
Section 7 has defined the word “willfully” in this manner since it was enacted in
1872. (1872 Pen. Code, § 7; Stats. 1905, ch. 476, § 1.)

14
“[e]very person . . . who knowingly resists, by the use of force or violence, [an executive]
11
officer, in the performance of his duty.” (1872 Pen. Code, § 69.)
By simultaneously enacting these two related statutes in 1872 and using
“willfully” to describe the required mental state for a section 148 offense but
“knowingly” to describe the required mental state for a section 69 resisting offense, the
Legislature clearly expressed its decision to require different mental states for the two
offenses. (Arriaga, supra, 58 Cal.4th at p. 960.) This is particularly true in light of the
fact that the precursor to these statutes was a single statute that required both mental
states. Had the Legislature intended for the two offenses to have the same mental state, it
would have used the same words in both statutes to describe the required mental states.
Third, the Legislature’s 1997 amendment of section 148 to add subdivision (a)(2),
which uses “knowingly and maliciously” to describe the mental state required for the
related offense of disrupting, impeding, or interfering with a police communication,
provides further evidence of the Legislature’s recognition that “willfully” in section 148,
subdivision (a)(1) is not equivalent to actual knowledge. (Stats. 1997, ch. 111, § 1.) If
the Legislature had intended for the two required mental states to be equivalent, it would
have amended section 148, subdivision (a)(1) to match the mental state specified in
section 148, subdivision (a)(2). By using different words to describe the required mental
states in these adjacent parts of section 148, subdivision (a), the Legislature further
demonstrated its intent that “willfully” in section 148, subdivision (a)(1) did not mean
“knowingly.” (Arriaga, supra, 58 Cal.4th at p. 960.)

11
Section 69, both originally and currently, proscribes two different offenses.
The first one is the specific intent offense of attempting by threat or violence to deter or
prevent an executive officer from performing a duty. The second is a resisting arrest
offense. (1872 Pen. Code, § 69; § 69.) The term “executive officer” includes peace
officers. (In re Manuel G. (1997) 16 Cal.4th 805, 818.)

15
 Fourth, the Legislature’s 1997 action took place long after a Court of Appeal
construed section 148, subdivision (a)(1) and found that it did not require actual
knowledge. In 1986, the Fifth District Court of Appeal held that section 148,
subdivision (a)(1)’s use of the word “willfully” required only that one “know, or through
the exercise of reasonable care should have known, that the person attempting to make
the arrest is an officer.” (People v. Lopez (1986) 188 Cal.App.3d 592, 599.) The Fifth
District found: “Before one can be found culpable, however, he or she must know, or
through the exercise of reasonable care should have known, that the person attempting to
make the arrest is an officer. Otherwise the statute is overbroad. It would make mere
flight or fear of capture an offense.” (Ibid.) “The standard applied here is not the
subjective belief by the defendant that he was being chased by someone other than a
police officer. The standard used in section 834a is that of actual knowledge or what a
reasonable person should have known. This is an objective standard for measuring the
knowledge of the actor. Under this ruling, section 148 still remains a broader statute.
This is so because it not only proscribes resisting arrest, but it also limits other forms of
hindering a police officer or other public official from executing the duties of his or her
office.” (Ibid.) The fact that the Legislature’s 1997 post-Lopez amendment of section
148, subdivision (a) created a new offense that required actual knowledge while leaving
unaltered section 148, subdivision (a)(1)’s “willfully” requirement is another strong
indicator that the Legislature did not intend for a section 148, subdivision (a)(1) offense
to require actual knowledge.
No published decision disagreed with Lopez’s holding until 2019, when another
panel of this court issued the opinion in A.L. Defendant bases his argument on the
opinion in A.L., but his argument fails because we respectfully disagree with that opinion.
The minor in A.L. had been found by the juvenile court to have committed battery
on a peace officer (§ 243, subd. (b)) and to have violated both section 69 and section 148,
subdivision (a)(1). (A.L., supra, 38 Cal.App.5th at pp. 18-19.) On appeal, the minor

16
claimed that the juvenile court had applied the wrong legal standard in rejecting her
argument that she had not committed any of these offenses because she believed that the
police officers did not have the right to detain her. (Id. at pp. 19-20.) The minor claimed
that the juvenile court had failed to properly consider her state of mind. (Id. at p. 20.)
The A.L. opinion assessed the nature of the mental state required for each of the
minor’s offenses. It concluded that, while battery on a peace officer requires only
“criminal negligence,” section 69 and section 148, subdivision (a)(1) both require “actual
knowledge that the officer was performing a duty.” (A.L., supra, 38 Cal.App.5th at
pp. 21-22.) The A.L. opinion reasoned: “Willfully is most naturally read as synonymous
with knowingly, because ‘ “the term ‘willfully’ . . . imports a requirement that ‘the person
knows what he is doing.’ ” ’ (People v. Garcia (2001) 25 Cal.4th 744, 752, quoting
People v. Honig (1996) 48 Cal.App.4th 289, 334.) When ‘willfully’ is the mental state
required for a crime, the perpetrator must have actual knowledge of the relevant facts.
(In re Jerry R. (1994) 29 Cal.App.4th 1432, 1437.) Therefore, section 148,
subdivision (a)(1)––like the similar offense described by section 69––requires that a
defendant have actual knowledge he or she is resisting an officer in the performance of
duty.” (Id. at p. 22.)
The cases upon which the A.L. opinion relied do not support its conclusion.
People v. Garcia, supra, 25 Cal.4th 744 did not hold that “willfully” always (or even
usually) means actual knowledge. In Garcia, the court explained that “the meaning of
the term ‘willfully’ varies depending on the statutory context.” (Id. at p. 753.) It was
statutory context that drove the Garcia court’s decision that the Legislature’s use of the
word “willfully” in a statute criminalizing an omission was intended to import a
requirement of actual knowledge into that statute. “In a case like this, involving
a failure to act, we believe section 290 requires the defendant to actually know of the
duty to act. Both today and under the version applicable to defendant, a sex offender is
guilty of a felony only if he ‘willfully violates’ the registration or notification provisions

17
of section 290. [Citation.] The word ‘willfully’ implies a ‘purpose or willingness’ to
make the omission. (§ 7.) Logically one cannot purposefully fail to perform an act
without knowing what act is required to be performed. As stated in People v. Honig
(1996) 48 Cal.App.4th 289, 334, ‘the term “willfully” . . . imports a requirement that “the
person knows what he is doing.” [Citation.] Consistent with that requirement, and in
appropriate cases, knowledge has been held to be a concomitant of willfulness.
[Fn. omitted.]’ ” (Id. at p. 752, italics added.) Thus, Garcia does not stand for the
proposition that “willfully” invariably means actual knowledge. The court took great
pains to distinguish between statutes criminalizing omissions, where actual knowledge
was required, and those criminalizing affirmative acts, where it had previously concluded
that “ ‘willfulness’ could include criminal negligence.” (Ibid.) People v. Honig, supra,
48 Cal.App.4th 289 similarly held that the meaning of “willfully” depended on the
context. (Id. at p. 334.)
In re Jerry R., supra, 29 Cal.App.4th 1432 also did not hold that “willfully”
invariably means actual knowledge. The issue in Jerry R. was whether a person who
thought a firearm was unloaded could be found to have “willfully” discharged a firearm.
The Jerry R. court stated that “the term ‘willful’ requires only that the prohibited act
occur intentionally.” (Id. at p. 1438.) The court found that a person could not be found
to have intentionally discharged a firearm if the person thought the firearm was not
loaded, since an unloaded firearm could not be discharged. (Id. at pp. 1437-1441.)
In Jerry R., unlike here, the perpetrator’s mental state concerned the act—discharge—not
an attendant circumstance, such as the status of the victim.
The historical development of resisting arrest statutes in California was not
addressed in the opinion in A.L. Therefore, the opinion in A.L. did not consider the
Legislature’s 1850 and 1872 enactments, its use of different language in the original
versions of sections 148 and 69, or its 1997 post-Lopez choice to retain “willfully” as the

18
required mental state for a section 148, subdivision (a)(1) offense while creating a related
offense in section 148, subdivision (a)(2) that expressly required actual knowledge.
Based on our application of the rules of statutory construction and our review of
the statute’s legislative history, we hold that section 148, subdivision (a)(1) does not
require actual knowledge. We therefore respectfully disagree with and decline to follow
A.L. Accordingly, we reject defendant’s claim that the trial court erred by instructing the
jury with CALCRIM No. 2656 because the instruction did not require actual knowledge.
B. Response to Jury Question Regarding CALCRIM No. 2656
Defendant contends that even if actual knowledge is not required, the trial court
prejudicially erred in responding to a jury question about CALCRIM No. 2656’s use of
the phrase “reasonably should have known.”
The trial court had granted an in limine motion and ruled that defendant’s “mental
health situation” would not be referred to at trial. At the instruction conference,
defendant’s trial counsel noted that “we have a motion in limine that essentially prohibits
both sides from talking about mental health.” “[W]e both agree that mental health is not
going to be discussed.”
CALCRIM No. 2656 told the jury that the third element of the resisting count
required a finding that “[w]hen the defendant acted, he knew, or reasonably should have
known, that Officer Meyer, Carrell, or Griffith was a police officer performing or
attempting to perform his duties. [¶] Someone commits an act willfully when he or she
does it willingly or on purpose. It is not required that he or she intend to break the law,
hurt someone else, or gain any advantage.”
The jury began its deliberations on the afternoon of June 28, 2018. Early the next
morning, the jury submitted the following question: “Count 4 (page 36) [CALCRIM
No. 2656], point #3 has the clause ‘or reasonably should have known.’ Which of the
following is the correct interpretation of this clause? [¶] a) ‘or a reasonable person
should have known’ [¶] b) ‘or reasonably should have known based on our

19
understanding of the defendant’s reasoning ability’ [¶] c) none of the above.” The court
gave a prompt written response to this question, which read simply: “ ‘A.’ ” The jury
reached a verdict on the resisting count at the end of that day.
Defendant claims that the jury should have been permitted to consider his “mental
breakdown” and “bipolar disorder” in deciding whether his “reasoning ability” was so
deficient that he could not or did not perceive that the officers were police officers.
“In a criminal action, . . . evidence concerning an accused person’s intoxication,
trauma, mental illness, disease, or defect shall not be admissible to show or negate
capacity to form the particular purpose, intent, motive, malice aforethought, knowledge,
or other mental state required for the commission of the crime charged.” (§ 25,
subd. (a).) “Evidence of mental disease, mental defect, or mental disorder shall not be
admitted to show or negate the capacity to form any mental state, including, but not
limited to, purpose, intent, knowledge, premeditation, deliberation, or malice
aforethought, with which the accused committed the act. Evidence of mental disease,
mental defect, or mental disorder is admissible solely on the issue of whether or not the
accused actually formed a required specific intent, premeditated, deliberated, or harbored
malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a).) Hence,
evidence of a mental health issue is not admissible to show that a defendant lacked the
capacity—what the jury referred to as defendant’s “ability”—to form the required mental
state, nor is it admissible to show anything other than the lack of a required specific
mental state.
Since a violation of section 148, subdivision (a)(1) is not a specific intent crime,
evidence of defendant’s mental disorder was irrelevant and inadmissible to show that he
lacked the ability to or did not actually perceive that the officers were peace officers.
“The common law does not take account of a person’s mental capacity when determining
whether he has acted as the reasonable person would have acted. The law holds ‘the
mentally deranged or insane defendant accountable for his negligence as if the person

20
were a normal, prudent person.’ ” (People v. Jefferson (2004) 119 Cal.App.4th 508, 519,
(Jefferson ), italics added.) Since section 148, subdivision (a)(1)’s mental state element is
an objective one that focuses on whether a defendant “reasonably should have known” of
12
his victim’s status, defendant’s mental health issues were irrelevant and inadmissible.
Neither of the cases defendant cites provides any support for his claim. People v.
Mathews (1994) 25 Cal.App.4th 89 concerned physical disabilities, which are not
governed by sections 25 and 28. (Mathews, supra, at p. 99.) He cites Lopez, but nothing
in Lopez suggests that a person’s “reasoning ability” or “mental breakdown” is
admissible or relevant on the issue of whether he “reasonably should have known” that
someone was a peace officer. In Lopez, the Fifth District stated: “The standard applied
here is not the subjective belief by the defendant that he was being chased by someone
other than a police officer. . . . [W]hat a reasonable person should have known . . . is an
objective standard for measuring the knowledge of the actor.” (Lopez, supra, 188
Cal.App.3d at p. 599, italics added.) When an “objective standard” applies, an
individual’s failure or inability to act reasonably, due to deficient “reasoning ability” or a
mental illness, is irrelevant and inadmissible. (Jefferson, supra, 119 Cal.App.4th at
p. 519.) Consequently, the trial court did not err in telling the jury that the “reasonably
should have known” standard did not require the jury to take into account defendant’s
personal mental health deficits.
C. CALCRIM No. 2670: Lawful Performance Element
Defendant contends that the trial court prejudicially erred in omitting two sections
and including one sentence in the version of CALCRIM No. 2670 that it used to instruct
the jury on the lawful performance element of the resisting arrest count.

12
Notably, defendant’s appellate claim is inconsistent with his position at trial.
At trial, the parties obviously understood the irrelevancy of mental health evidence and
agreed that defendant’s “mental health” would not be “discussed” at trial.

21
 1. Background
CALCRIM No. 2670 was requested by both the prosecution and the defense, and
neither objected at the instruction conference to the trial court’s proposed version of the
instruction.
As part of CALCRIM No. 2656, the court instructed the jury: “A peace officer is
not lawfully performing his or her duties if he or she is unlawfully arresting or detaining
someone or using unreasonable or excessive force in his or her duties. [¶] Instruction
2670 explains when an arrest or detention is unlawful and when force is unreasonable or
excessive.”
The court then instructed the jury with CALCRIM No. 2670 as follows:
“The People have the burden of proving beyond a reasonable doubt that Officer Meyer,
Carrell, or Griffith was lawfully performing his duties as a peace officer. [¶] If the
People have not met this burden, you must find the defendant not guilty of resisting
arrest. A peace officer is not lawfully performing his or her duties if he or she is using
unreasonable or excessive force when making or attempting to make an otherwise lawful
arrest or detention. [¶] Special rules control the use of force. [¶] A peace officer may
use reasonable force to arrest or detain someone, to prevent escape, to overcome
resistance, or in self-defense. [¶] If a person knows, or reasonably should know, that a
peace officer is arresting or detaining him or her, the person must not use force or any
weapon to resist an officer’s use of reasonable force. [¶] If a peace officer uses
unreasonable or excessive force while arresting or attempting to arrest a person, that
person may lawfully use reasonable force to defend himself or herself. [¶] A person
being arrested or detained uses reasonable force when he or she: (1) uses that degree of
force that he or she actually believes is reasonably necessary to protect himself or herself
from the officer’s use of unreasonable or excessive force; and (2) uses no more force than
a reasonable person in the same situation would believe is necessary for his or her
protection.”

22
 The prosecutor argued that she had established the lawfulness element of the
resisting count. “[I]t essentially requires . . . a reasonable suspicion to detain. [¶] So
they must believe that some sort of crime is happening to stop them on the street. They
can’t just go around stopping people without cause. They have probable cause to arrest,
so they believe that there was some sort of crime and they have probable cause to arrest
and they didn’t use any unreasonable force.” The prosecutor argued that Meyer “had
reasonable suspicion to detain” based on what he had been told by Ward and Megoloff
and his own observations of defendant behind the counter and displaying symptoms of
being under the influence. She also asserted that Meyer “had probable cause to arrest.”
The prosecutor argued that Carrell and Griffith had “reasonable suspicion to detain”
because they saw defendant’s “active flight” from Meyer.
Defendant’s trial counsel’s argument to the jury spent little time on the lawfulness
element and did not include any argument that the detention or arrest was unlawful. His
argument on the lawfulness element touched only on the possible use of excessive force:
“And any action that’s undertaken that is reasonable in light of the excessive force, it’s
something that is a defense to this charge.” “And what [defendant] is allowed to do is
useable [sic] force against excessive force.”
2. Analysis
a. Omissions
Defendant contends that the trial court prejudicially erred by omitting portions of
CALCRIM No. 2670 that address the lawfulness of an arrest or detention.
The use notes for CALCRIM No. 2670 provide: “Give section A [addressing the
lawfulness of a detention] if there is an issue as to whether the officer had a legal basis to
detain someone. Give section B [addressing the lawfulness of an arrest] if there is an
issue as to whether the officer had a legal basis to arrest someone. Give section C if there
is an issue as to whether the officer used excessive force in arresting or detaining

23
someone.” (Judicial Council of Cal. Crim. Jury Instns. (2020), Bench Notes
to CALCRIM No. 2670.)
“California cases hold that although the court, not the jury, usually decides
whether police action was supported by legal cause, disputed facts bearing on the issue of
legal cause must be submitted to the jury considering an engaged-in-duty element, since
the lawfulness of the victim’s conduct forms part of the corpus delicti of the offense.”
(People v. Gonzalez (1990) 51 Cal. 3d 1179, 1217, italics added.) “Disputed facts
relating to the question whether the officer was acting lawfully are for the jury to
determine when such an offense is charged.” (People v. Jenkins (2000) 22 Cal.4th 900,
1020.)
“ ‘A party is not entitled to an instruction on a theory for which there is no
supporting evidence.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 715.) Here, there was
no evidence of an unlawful detention or arrest, and there were no disputed facts bearing
on those issues. The information provided to Meyer by Ward and Megoloff indisputably
supported both a detention and an arrest of defendant. Ward told Meyer that she had
been intentionally hit by defendant’s car, and Megoloff expressly identified defendant as
the driver of that car. Defendant did not dispute the validity of Meyer’s attempt to detain
and arrest him, so he was not entitled to instructions on the validity of the detention and
arrest. Similarly, it was undisputed that Carrell and Griffith had lawful grounds to detain
and arrest defendant based on their observations of his flight from Meyer, and defendant
did not dispute this. He disputed only the level of force used by the officers to detain and
arrest him, and defendant makes no challenge to the adequacy of the court’s instructions
on the force issue.
Because there were no disputed facts concerning the officers’ lawful basis for a
detention and arrest of defendant, we find no error in the court’s omission of the portions
of CALCRIM No. 2670 addressing those issues. The jury was instructed that “[t]he
People have the burden of proving beyond a reasonable doubt” that the officers were

24
“lawfully performing” their duties and that “[a] peace officer is not lawfully performing
his or her duties if he or she is unlawfully arresting or detaining someone or using
unreasonable or excessive force in his or her duties.” No further instructions were
necessary on the undisputed issue of the lawfulness of the detention and arrest.
b. Erroneous Inclusion
Defendant maintains that the trial court prejudicially erred by including in the
version of CALCRIM No. 2670 that it used to instruct the jury the following sentence:
“If a person knows, or reasonably should know, that a peace officer is arresting or
detaining him or her, the person must not use force or any weapon to resist an officer’s
use of reasonable force.”
The use notes for CALCRIM No. 2670 state: “If this instruction is only relevant
to a charge of violating Penal Code section 148, the court must not give the bracketed
sentence in section C that begins with ‘If a person knows, or reasonably should know,
that a peace officer is arresting or detaining him or her.’ ” (Judicial Council of Cal. Crim.
Jury Instns., supra, to CALCRIM No. 2670.)
We agree with defendant that the trial court should not have given this sentence of
CALCRIM No. 2670. However, it is difficult to conceive of how he could have been
prejudiced by its inclusion in the instruction. The only defense theory concerning the
lawful performance element that had any evidentiary support was the excessive force
theory. The challenged sentence did not concern the excessive force theory and was
expressly limited to the situation where the officer used “reasonable force.” The very
next sentence of the instruction told the jury that “[i]f a peace officer uses unreasonable
or excessive force while arresting or attempting to arrest a person, that person may
lawfully use reasonable force to defend himself or herself.” (Italics added.) No juror
could possibly have believed that the mistakenly included sentence had any impact on the
excessive force theory. We find no prejudicial error.

25
 D. Pitchess
Defendant contends that the trial court erred in denying his Pitchess motion.
The Attorney General contends that his motion was properly denied because the incident
was captured on video, which made the discovery he sought irrelevant.
1. Background
In May 2018, defendant filed a Pitchess motion seeking discovery of personnel
records concerning Meyer, Griffith, and Carrell. He sought complaints against the
officers for falsification of evidence or testimony, excessive use of force, or “acts
involving moral turpitude.” To support his request, defendant submitted his trial
counsel’s declaration. His trial counsel stated that discovery was merited because Meyer
and Griffith had used force against defendant even though defendant was unarmed and
had made no attempt to strike or attack either of them. He asserted that Carrell had
knocked defendant down and falsely claimed that defendant was “ ‘showing active
aggression.’” He also claimed that Meyer had made false statements about defendant’s
actions. Defendant’s trial counsel maintained that evidence that these officers had a
history of false testimony or use of excessive force would bolster defendant’s claim of
self-defense.
The City of Sunnyvale opposed defendant’s Pitchess motion. It argued that
defendant’s showing was inadequate because it was predicated on a scenario that was at
odds with the actions shown on the videos of the event. The City asserted that there was
no dispute about the force used by the officers during the encounter, all of which had
been captured on video. The City urged the court to “review and consider” the videos
before ruling on defendant’s motion.
At the hearing on defendant’s motion, the trial court stated: “So my thought is
there is no materiality since the whole thing is recorded.” Defendant’s trial counsel
responded: “While the incident itself is recorded, there’s perspective. And I don’t object
to the court having the opportunity to receive the video itself if the City Attorney has it.

26
If the court wishes to watch it, so be it. However, not every single angle is captured on
this video camera. And while the officers made statements that a certain movement or a
certain action by [defendant] was undertaken, I don’t believe that it was
undertaken. . . . [¶] So while there certainly was a physical altercation, I don’t agree
with the officer’s versions. While it is recorded, I don’t object to the court inspecting it if
the court wishes to. I would just argue that those go towards the weight. Those would
not go towards whether or not the officers are credible, or whether or not the actual
incidents occurred.”
The court rejected this argument: “Based on the fact that the incident was
recorded by each of the officers that is the subject of the Pitchess request, the court finds
that the defense has not met its initial burden of materiality. And it’s going to deny the
Pitchess motion.”
At trial, Meyer’s body-camera video, Griffith’s body-camera video, a dash-cam
video, and a 7-Eleven surveillance videos were all played for the jury and admitted into
evidence.
2. Analysis
Defendant contends that he presented a plausible scenario that warranted the
discovery he sought. He claims that the information he sought could have supported his
excessive force claim because, despite the fact that he was unarmed and did not strike or
attack the officers, the officers repeatedly shot him with their tasers, struck him with a
baton, punched him, “grabbed” him, and “kneed” him.
A defendant’s burden on a Pitchess motion is to “show a ‘plausible’ factual
foundation” for the requested discovery. (Warrick v. Superior Court (2005) 35 Cal.4th
1011, 1026.) “[A] plausible scenario of officer misconduct is one that might or could
have occurred. Such a scenario is plausible because it presents an assertion of specific
police misconduct that is both internally consistent and supports the defense proposed to
the charges. A defendant must also show how the information sought could lead to or be

27
evidence potentially admissible at trial. Such a showing ‘put[s] the court on notice’ that
the specified officer misconduct ‘will likely be an issue at trial.’ [Citation.] Once that
burden is met, the defendant has shown materiality under section 1043. [¶] . . . [T]he
trial court looks to whether the defendant has established the materiality of the requested
information to the pending litigation.” (Ibid.)
Defendant’s written motion did not address the fact that the videos
comprehensively documented the entire incident, including the actions of all three
officers and defendant. Because everything was recorded, there was no dispute about
what had occurred, and the defense did not dispute what had occurred but only whether
the level of force used was justified and whether the mental state element had been
satisfied. At the hearing on the motion, after the court questioned the materiality of the
requested discovery in light of the videos, defendant’s trial counsel provided no specific
explanation of how information about the credibility of the officers and their prior use of
force might be relevant and material. He merely claimed that “there’s perspective” and
that “not every single angle is captured on this video camera.”
By failing to address the materiality of the requested discovery in light of the
undisputed content of the videos, defendant failed to satisfy his burden. Evidence that
any of the officers had lied on prior occasions or used excessive force in the past would
not assist defendant in presenting a defense since the undisputed video evidence
demonstrated precisely the force the officers had used on defendant and how he had
acted. The four videos of the encounter were quite comprehensive and precluded the
officers from misleading anyone about the nature of the events. The videos did not leave
in question the nature of the force used or conduct of defendant that preceded the use of
that force. Under these circumstances, defendant did not and could not justify the
requested discovery without plausibly describing how some specific conduct that had not
been captured on video might have been misrepresented by one of the officers or might
constitute excessive force. The proffered justification for the motion was not “plausible”

28
in light of the videos. We conclude that the trial court did not err in denying defendant’s
Pitchess motion.
V. DISPOSITION
The probation order is affirmed.

29
 _______________________________
ELIA, J.

WE CONCUR:

_____________________________
GREENWOOD, P.J.

_____________________________
BAMATTRE-MANOUKIAN, J.

People v. Mackreth
H046266
Trial Court: Santa Clara County Superior Court
Superior Court No: B1794019

Trial Judge: Honorable Charles E. Wilson II
Honorable Allison M. Danner

Counsel for Plaintiff and Respondent: Xavier Becerra
THE PEOPLE Attorney General

Lance E. Winters
Chief Assistant Attorney General

Jeffrey M. Laurence
Senior Assistant Attorney General

Rene A. Chacon
Supervising Deputy Attorney General

Juliet B. Haley
Deputy Attorney General

Counsel for Defendant and Appellant: Gabriel Bassan
TRISTAN MACKRETH