Opinion
E068563
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. WESLEY BARTHUM ARNOT, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. 16CR000286) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed. Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
A jury convicted defendant and appellant, Wesley Barthum Arnot, of misdemeanor resisting a peace officer (Pen. Code, § 148, subd. (a)(1)), a lesser included offense of the felony charge of resisting an executive officer (count 1; § 69). The court placed defendant on informal, summary probation for three years with a term that defendant be banned from possessing a gun "during the course of his probation[.]"
All further statutory references are to the Penal Code.
After defense counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and three potentially arguable issues: (1) whether the court abused its discretion in finding no discoverable material in the personnel files of the officers involved in the case during the Pitchess proceedings; (2) whether the court erred in allowing Deputy Sheriff Cort Severson to testify, over counsel's objection, about the procedures involved in and dangers of responding to domestic violence calls; and (3) whether the court abused its discretion in imposing a prohibition of defendant's possession of firearms as a term of defendant's probation. We affirm.
Pitchess v. Superior Court (1974) 11 Cal.3d 531.
I. FACTUAL AND PROCEDURAL BACKGROUND
On February 15, 2016, at 2:34 a.m., Deputy Severson was dispatched to defendant's residence regarding a report of domestic violence. Defendant was the reporting party. Deputy Severson saw two vehicles at the residence; he conducted a Department of Motor Vehicle record check of one of the vehicles, which was registered to Rhine at that address. As he approached the front door, he "saw the metal security screen door begin to open and then immediately was slammed shut." Deputy Severson believed Rhine opened the door and defendant shut it. He could hear the two of them "yelling and arguing."
However, April Rhine, who lived with defendant and who was pregnant with defendant's child, said defendant simply called the police before she could.
Rhine told Deputy Severson she wanted to open the door, but defendant closed and locked it. Defendant said he wanted Rhine removed from the home; it "was his house and that he wanted her out. He wanted her removed." Rhine told Deputy Severson defendant had a license to carry a concealed weapon. She said she was afraid of defendant.
Deputy Severson asked defendant to come out and speak with him; defendant refused; he also refused to open the door and allow Deputy Severson to come inside. Deputy Severson noted that defendant was the one who called the police and expressed confusion as to why defendant would call for help but not be willing to communicate with the police when they arrived. Rhine pleaded with defendant to allow Deputy Severson inside. She said she was the victim; defendant had thrown a coffee mug at her head. Rhine said she had lived in the home for a couple of years and did not want to leave. Rhine testified she was pregnant with defendant's child and they were having a heated argument about whether he was the father; defendant did not believe the child was his because he had been told he could not father children. Deputy Severson called for backup.
The transcript of Deputy Severson's belt recording, which was played for the jury, actually reflects Rhine said she had been living at that address for nine years.
Someone closed the wooden door inside the security door and locked it. Deputy Severson then heard what sounded like someone drilling shut the front door with screws. He could hear Rhine and defendant continue to argue; Rhine "was audibly upset and crying through most of our conversations and encounter with her." Defendant then removed the screws. He opened the wooden door and held paperwork against the security door which he said would prove his ownership of the home and permit Deputy Severson to remove Rhine. Deputy Severson said he would be happy to discuss the matter if defendant would open the door; defendant refused.
Defendant then took off down the hallway into what Rhine said was the back bedroom. Knowing that firearms were in the home, Deputy Severson feared defendant was going to retrieve one. He told Rhine to open the door, which she did.
Defendant came back into the hallway, saw Rhine opening the door for Deputy Severson, told Deputy Severson to "[g]et the fuck off my property," pushed past Rhine, and charged toward Deputy Severson at a sprint. Deputy Severson told defendant to stop. Defendant raised his right hand toward him and brought it down toward Deputy Severson's head. Deputy Severson ducked and moved to sweep defendant's arm away from his head; defendant swiped Deputy Severson's head nonetheless. The force of defendant's movement caused his body to contact the left side of Deputy Severson's body; Deputy Severson tried to get ahold of defendant's left arm; a backup officer arrived and helped control defendant by taking him to the ground.
Once on the ground, defendant thrashed and twisted. The officers told defendant to stop resisting; however, defendant continued to struggle. After one of the officer's threatened to use a Taser on defendant, he relented and the officers were able to handcuff him. A black metal flashlight was recovered either from under defendant's body or from his right hand. Rhine told Deputy Severson she saw defendant lunge outside the house.
Rhine testified that, in addition to being personally involved with defendant, she was his in-home supportive services caregiver for which she was paid. Defendant was disabled, having suffered extensive injuries from a drunk driver. Defendant needed to use a walker or cane to get around well, although he often refused to use it. He would stumble and fall at least once a week. In the house, he would often use the walls to get around instead of his walker and cane. Rhine testified defendant merely reached to close the security door and tripped over the threshold and outside the home, rather than lunging out toward the officer. Defendant did not struggle with the officers.
One of the responding officers testified he saw defendant lunge quickly at Deputy Severson through the open door with his hands in the air; defendant had a flashlight in his right hand; defendant shoved Deputy Severson in the chest. The other responding officer also saw defendant lunge quickly out of the doorway toward Deputy Severson and shove him in the chest. One of the officers testified defendant apologized for shoving Deputy Severson.
The People charged defendant by felony complaint with assault on a peace officer (count 1; § 245, subd. (c)) and resisting an executive officer (count 2; § 69). After the preliminary hearing, the court found insufficient evidence to hold defendant to answer for count 1, but found sufficient evidence to hold defendant to answer for the count 2 offense and simple battery, an added count 3 offense.
The People did not file an amended complaint or information in conformity with the court's findings at the preliminary hearing. The minute order for the preliminary hearing reads, "PC243(B)-F Battery Against Peace Officer added."
The People subsequently filed an information containing identical charges as alleged in the complaint. Defense counsel filed a motion pursuant to section 995 to dismiss count 1 of the information. The People filed opposition. The court granted the motion and dismissed count 1.
Defense counsel later filed a motion for the court to conduct a Pitchess hearing regarding the personnel files of four police officers. The People filed opposition. The court granted the motion for an in camera hearing with respect to three of the police officers. The court conducted an in camera review of the three police officers' personnel records and determined nothing within should be provided to defense counsel. The People filed a first amended information charging defendant with resisting an executive officer (count 1; § 69) and battery upon a peace officer (count 2; § 243, subd. (b)).
The fourth officer was apparently not involved in the arrest of defendant. --------
During his testimony, Deputy Severson gave foundational background on his police training, including escalation of force, personal safety zones, and specialized domestic violence training. Defense counsel objected on the basis of speculation and foundation to a question asking whether, based on Deputy Severson's training and experience, if domestic violence cases were some of the most potentially dangerous calls to which to respond. The court overruled the objection. Severson testified: "Domestic violence cases often have a high propensity for violence because you're dealing with an emotionally-elevated situation before we get there. You often have several or multiple people in a situation that you're trying to control and calm down. And then oftentimes people who could be victims of domestic violence can become upset at our actions towards the abuser and then can often react violently toward us because of that. Because of the situation, we are concerned about everyone involved, including victims, witnesses, suspects in a domestic violence situation."
After trial, the People moved to dismiss the count 2 charge; the court dismissed count 2. After sentencing defendant to three years of summary, informal probation, the court noted: "This conviction also will require a 10-year gun prohibition. And I think for you, that is probably the biggest punishment, being a person that has had a concealed weapon for a period of time, that that's a big punishment, 10 years. But that's the law and I will impose that." Defendant accepted probation on the terms posed by the court after consulting with defense counsel.
Defense counsel later filed a motion for removal of the firearm prohibition and the search terms of defendant's probation. The People filed opposition. The court denied the motion, but clarified that defendant was prohibited from possessing a firearm only "during the course of his probation[.]"
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, which he has not done. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. SLOUGH
J.