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People v. Bonilla

California Court of Appeals, Fifth District
Feb 16, 2011
No. F058560 (Cal. Ct. App. Feb. 16, 2011)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Kern County, No. BF121119B, John R. Brownlee, Judge.

Donn Ginoza, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Jeffrey D. Firestone, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

Poochigian, J.

STATEMENT OF THE CASE

On May 4, 2009, the Kern County District Attorney filed an amended information in superior court charging appellant Marvin Vladimir Bonilla as follows: count 1--assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)); count 2--battery on a peace officer (§ 243, subd. (c)(1)); counts 3, 4, 5, and 7--obstructing/resisting an executive officer (§ 69); count 6--possession of marijuana for sale (Health & Saf. Code, § 11359); and count 8--misdemeanor obstruction of a peace officer (§ 148, subd. (a)(1)).

All further statutory references are to the Penal Code unless otherwise stated.

On May 29, 2008, appellant was arraigned and pleaded not guilty to the charges.

On April 24, 2009, jury trial commenced.

On May 4, 2009, the fourth day of trial, the court granted the prosecution’s motion to amend count 2 to allege a violation of section 243, subdivision (c)(2). Appellant entered a plea of not guilty to the amended charge.

On May 5, 2009, the fifth day of trial, the court granted the prosecutor’s motion to dismiss counts 1 and 2 for lack of a complaining witness and count 3 for insufficient evidence (§ 1118.1).

On May 8, 2009, the jury found appellant guilty of counts 4 (resisting an executive officer), 5 (the lesser included offense of misdemeanor obstruction/resistance of a peace officer), and 6 (possession of marijuana for sale).

On July 15, 2009, the court denied appellant’s motion for new trial.

On July 24, 2009, the trial court conducted a sentencing hearing, denied appellant probation, and sentenced him to two years in state prison. The court imposed the middle term of two years on count 4, a concurrent middle term on count 6, and a concurrent term of 90 days on count 5. The court awarded 123 days of custody credits, imposed a $200 restitution fine (§ 1202.4, subd. (b)), and imposed and suspended a second such fine pending successful completion of parole (§ 1202.45).

The court also calculated section 4019 credits for sentences in two unrelated cases in which execution of sentence was imposed after revocation of probation. Under the version of section 4019 in effect at the time appellant was sentenced, a defendant earned two days of credit for every four days of custody unless he failed to perform assigned work or abide by the facility’s reasonable rules and regulations. (Former § 4019, subds. (a)(4), (b), (c), (f), as amended by Stats. 1982, ch. 1234, § 7, p. 4553.) The amendments to section 4019 which are at issue, with certain exceptions not applicable here, increase the good conduct credits a defendant can receive for presentence custody. Effective January 2010, section 4019 provided for up to two days of credit for every two days of custody under the same conditions. (Former § 4019, subds. (a)(4), (b)(1), (c)(1), (f), as amended by Stats. 2009-2010, 3d Ex.Sess.2009, ch. 28X, § 50.) Sections 4019 and 2933 have been further amended by urgency legislation, operative on September 28, 2010. (Stats. 2010, ch. 426, § 2.) The September 2010 amendments do not affect this case and do not change our analysis in this matter.

On September 18, 2009, appellant field a timely notice of appeal.

STATEMENT OF FACTS

Because appellant raises an intricate substantial evidence contention on appeal, we have independently reviewed and summarized, witness-by-witness, the record on appeal.

Preliminary Summary of Facts

On the evening of October 27, 2007, Bakersfield Police were dispatched to a neighborhood near Kincaid and Virginia Streets following a report of a fight involving firearms in the backyard of a home. The purported property owner confronted arriving officers in the backyard and demanded that they leave. As the officers tried to disperse the party, they were cornered and surrounded by a crowd of partygoers. The officers radioed for assistance as they tried to make arrests. During the course of the evening, appellant threw a full cup of beer which hit an assisting officer in the forehead. The officer attempted to take appellant into custody but appellant resisted and fought with officers until he was ultimately detained. Officers found bags of marijuana consistent with possession for purposes of sale. Multiple officers with varying points of view testified on behalf of the prosecution at trial.

Halloween Party

On the evening of October 27, 2007, the Vargas Family of Bakersfield planned to hold a Halloween party at their home on Kincaid Street, an area known by Bakersfield Police for Hispanic and African American gang activity. They invited families on their block, welcomed teenagers and children as young as age five, and encouraged the wearing of costumes. By 11:00 p.m., attendance at the party reached 150 guests, and beer was being served to adults in plastic cups and bottles. One guest videotaped the events of the evening.

911 Call

At 11:00 p.m. on October 27, 2007, one David Ivy dialed 911, provided his phone number, and advised dispatcher Jennifer Jacobs, “[T]hey having a big ‘ol gang fight in my backyard, ” at an address on Kincaid in Bakersfield. In response to questioning by Jacobs, Ivy said he did not know the identity of the people, advised that anywhere from 10 to 20 of them had “guns and all kinds of stuff, ” and repeatedly asked her to send the police. Ivy said the people with guns were Hispanic and dressed in hoods and hats. Ivy emphasized “it’s a big ‘ol gang fight and people got guns, and they, they gonna start shooting.”

Jacobs subsequently radioed several patrol units and advised, “…417, subjects with firearms, gang affiliation in the backyard at 322 Kincaid.” Unit 3 Baker 13 requested medical aid for a victim of a head injury at 3334 Kincaid. An officer reported that a male armed with a pipe and accompanied by a pit bull was coming out of an alley. An officer in Patrol Unit 1 Able 22 reported the firing of shots. An unidentified officer stated that the primary aggressors appeared to be south of officers and on the west side of the street.

Facts Elicited at Trial

Testimony of Officer Sherman

Bakersfield Senior Police Officer Charles Sherman, the primary investigating officer, testified the area of Kincaid Street and Virginia is occupied by several gangs, the Hispanic Varrio Bakers and the African American Eastside Crips. Officer Sherman was on patrol duty on the evening of October 27, 2009, and received a dispatch at 11:00 p.m. The dispatcher reported a large fight was taking place in the 300 block of Kincaid and suggested that gang members with firearms were involved. Sherman went to the scene and stopped at 4th and Kincaid Streets. He saw vehicles in the 300 block of Kincaid with their headlights illuminating at least 75 people who were blocking the street from sidewalk-to-sidewalk.

Officer Sherman was the first police officer to arrive at the scene. Officer Jones arrived next, followed by Officers Mara and Hatcher. When Officer Jones arrived, he pulled alongside Sherman’s patrol vehicle, then proceeded down Kincaid Street, and parked in front of the house at 322 Kincaid. Sherman drove his car to the same location and the crowd immediately dispersed. Sherman saw one Hispanic male with a firearm. The man weighed between 160 and 180 pounds and wore a black beanie.

The man matched the description given by the dispatcher and Sherman followed him. The suspect walked into the front yard of 322 Kincaid, passed through a four-foot swing gate, walked into the yard through the carport, and entered the backyard. Sherman contacted the man in the backyard, explained the reason for the presence of police, and conducted a pat-down of the man with his permission. The man did not have any weapons but a woman in the backyard began to scream, “ ‘[W]hy the f*** are you in my yard, get the f*** out.’ ” Sherman said there were “well over 150 people” in the backyard and more than 20 of them began to yell and scream obscenities at the officers. Sherman explained to the woman “there was a fight, there were people here with guns, and we just wanted to make sure that the party gets broken up safely.” The female continued to yell at Sherman after he explained the presence of the officers.

Another subject walked toward the front of the yard through the gate. According to Sherman, that subject threw down a cup and asked Sherman, “[W]hat the f*** I was staring at, bitch[?]” Sherman explained that he needed to leave because the party was over. The subject stayed and continued to yell, “ ‘[B]ust these motherf***ers.’ ” The man also yelled, “ ‘[L]et’s take them on, they can’t do this.’ ” The man’s statements caused other people in the yard to yell similar things. Officer Sherman finally directed Officer Jones to arrest the man because he was obstructing officers and delaying them from breaking up the party.

Officer Jones attempted to place the individual, one Arturo Campos, in handcuffs and the individual pulled away. Campos struggled as Officer Jones attempted to place him in a control hold. Officer Sherman picked the man up, knocked him on the ground, and then handcuffed him. As Sherman did so, more than 75 of the remaining people in the yard created a semicircle around Sherman and fellow Officers Mara and Jones. The people screamed and yelled and backed the officers into a corner of the yard. Officer Sherman radioed for assistance from other units and became aware that Officer Mara had been assaulted and that Officer Jones struggled to arrest another subject, one Dagoberto Amaya, after tasing him. Officer Sherman said he was concerned when the people in the backyard formed a semicircle around him and his fellow officers. Sherman explained, “We weren’t able to defend ourself [sic]with deadly force based on the amount of people and the innocent people in the backyard.”

Officer Sherman did not “physically see the assault. I just heard it.” Sherman was told that Mara was hit by a beer bottle.

Officer Sherman asked yet another subject to leave the backyard. That subject, one Luevano, was in the company of a female, one Sanchez, and a five-year-old child. The trio was standing in the front of the semicircle and Sherman ordered the male to leave with the child. Luevano and Sanchez disobeyed Sherman’s order and Luevano reached into his pocket. Sherman drew and pointed his weapon at the male. Luevano pulled a cell phone from his pocket and laughed. Sherman reholstered his weapon and arrested Luevano for obstructing and delaying the investigation. Officer Mara arrested Sanchez, and Sherman took custody of the child.

As Officer Sherman waited for additional officers, he saw an individual videotaping in the front yard of the home at 320 Kincaid Street. Sherman believed the videotape had evidentiary value and he seized the camera and ultimately deposited it in the police department property room. After Sherman arrested two males and a female, he and other officers attempted to disperse the crowd and encourage people to leave peacefully. Sherman learned there had been several other fights in the front yard. Sherman also said a number of individuals had broken through the backyard fence and were running in both directions in an alley that bordered the backyard. Sherman said he saw appellant sitting on the curb after he had been arrested but did not see him prior to that time. Sherman testified he was not involved in Bonilla’s arrest and did not know the circumstances.

Testimony of Officer Jones

Officer James Jones testified he was assigned to the gang unit and duty on the evening of October 27, 2007. That evening, Officer Jones was dispatched to 322 Kincaid Street. He arrived at the scene, met briefly with Officer Sherman, and then saw about 50 people disperse from the roadway. Jones stopped his vehicle several houses north of 322 Kincaid. Jones got out of his vehicle and looked for individuals who matched the initial description of “Hispanic males wearing beanies, armed with firearms.” As he looked at the crowd he saw a number of subjects fleeing the scene.

Officer Jones followed Officer Sherman into the backyard at 322 Kincaid and Officer Mara followed Jones. When Jones entered the backyard he saw a large Halloween party with 150 to 200 people in attendance. Jones saw Sherman speak with a female who said it was her house. Jones testified, “She was irate and belligerent with Officer Sherman about us being on the property.” One Arturo Campos began yelling obscenities at the officers and told them they had no business being in the back yard. According to Jones, Campos tried to incite the rest of the partygoers to fight the three officers. Officer Sherman directed Jones to take Campos into custody. Campos was initially passive and then pushed Jones and Sherman away. Sherman fell against the house after Campos pushed him. Campos grabbed at Jones’s hands and pushed his hands away. Throughout his encounter with the officers, Campos was yelling to the crowd, “bust on these mother f***ers.”

As Jones and Sherman dealt with Campos, a group of people surrounded the officers in the corner of the backyard. Jones radioed for assistance at least once. Officer Sherman ultimately picked up Campos, threw him on the ground, and handcuffed Campos. As Jones assisted Sherman, one Dagoberto Amaya struck Officer Mara in the head with a beer bottle. Campos was the first person arrested, Amaya was the second, and Luevano was the third. Officer Jones was not certain whether he saw appellant in the backyard.

Testimony of Officer Mara

Officer Patrick Mara testified he was the assigned to the Bakersfield Police Gang Unit on the evening of October 27, 2007. Mara and his partner, Officer Hatcher, received a dispatch to go to 322 Kincaid Street. The radio call concerned “a fight and possibly subjects with guns.” When Mara arrived at the scene, he saw Officers Sherman and Kincaid walking into the backyard of a house on Kincaid Street. Mara followed Sherman and Jones into the back yard and Officer Hatcher stayed in front of the house to secure the patrol vehicles. The three officers entered the backyard and encountered numerous partygoers. One of them challenged Officer Sherman to a fight and Officers Jones and Sherman attempted to arrest him. The subject struggled with Jones and Sherman as Mara attempted to keep numerous people away from them. The latter individuals were trying to assault Sherman and Jones during the course of the arrest of the subject. The crowd formed a semicircle around the officers, cornered them into a portion of the back yard, and began advancing toward the officers.

Mara said the crowd cursed and spoke aggressively at the officers. Mara physically pushed and screamed at dozens of people to keep them back. Dagoberto Amaya approached Mara from the back and struck him on the right side of the head with a full beer bottle. Mara sustained a concussion but was able to strike Amaya in the face with an elbow. Amaya fell down, got back up, and Officer Jones applied a Taser to him. Mara was able to handcuff Amaya but the crowd became angrier. Mara said it appeared the crowd was going to overrun the officers at that point. Mara requested backup several times and additional officers arrived at the scene after a time. The crowd began to disperse after more officers arrived and officers were able to secure three handcuffed suspects in several patrol cars. Despite the arrival of more officers, people were upset and yelling and some threw beer bottles and cups of beer. Officer Mara took Amaya to Kern Medical Center because Officer Jones had applied a Taser to him and because Amaya had sustained a cut to his upper lip and nose when Mara struck him with his elbow.

On cross-examination, Mara said he did not know what Amaya used to strike him but that Officer Jones later informed him that it was a full beer bottle.

Officer Mara said his partner, Officer Hatcher, stayed in the front yard when Mara went into the backyard. When Mara saw Hatcher later in the evening, Hatcher appeared as if he had been in a fight. His shirt was out of his belt, his hair was in disarray, and he had been drenched in beer. Mara had been drenched in beer also. Mara and Hatcher eventually accompanied Amaya to the hospital. On the trip to the hospital, Hatcher described the fights he had been in that evening. Hatcher complained about his back and ribs hurting.

Testimony of Officer Caughell

Bakersfield Police Officer William Caughell testified he and his partner, Officer Cooley, were on patrol duty on the evening of October 27, 2007, when they received a dispatch to 322 Kincaid Street. On the radio call, officers requested an expedited response to the scene. When Caughell and Cooley arrived at the scene they saw several hundred people in the roadway and in the front yards of residences in the 300 block of Kincaid. According to Caughell, “[T]here appeared to be fights going on everywhere.” Caughell also noted four or five patrol vehicles in the vicinity.

Caughell saw Officer Reimer in the middle of the street and Officers Hatcher and Shaff on the west side of the roadway. Caughell parked his car and went to assist Hatcher and Shaff, who were attempting to break up a fight. Hatcher was holding one subject, Shaff was holding another, and the two officers attempted to pull the two subjects apart. Officer Hatcher was holding one Alejandro Oliveras and Caughell took him into custody after striking him twice with a baton on his right forearm.

After Oliveras was detained, Caughell went to the west alley in the 300 block of Kincaid in response to a request by other officers for assistance. The latter officers reported that people were throwing beer bottles at a fire truck. While Caughell was in the alley, he saw a subject run into a yard south of 322 Kincaid and pick up a pole secured in the ground. A pit bull was tethered to that pole with a chain. The man started walking toward the front yard of the residence with the dog and said, “[F]*** those pigs. They can have this.” Caughell got on the police radio and warned fellow officers about the subject with the pit bull. Caughell then moved north in the alley and heard several gunshots. Caughell eventually transported Oliveras to Kern Medical Center. Oliveras had a strong odor of alcohol on his breath and person. He had red, watery eyes and had difficulty keeping his balance. He also had redness and swelling on his forearms and on the left side of his face.

Testimony of Officer Blakemore

Jeremy Blakemore testified he was on duty as a canine officer with the Bakersfield Police Department on the evening of October 27, 2007. Officer Blakemore responded to the 300 block of Kincaid after receiving a dispatch about “numerous Hispanic males armed with firearms.” He arrived at the scene and characterized it as “the most chaotic riot I’ve seen in the six years that I’ve been here.” Blakemore said 150 to 200 males and females were running from the driveway area of 322 Kincaid through the street. Blakemore parked and went with his canine partner, Thor, to the backyard of 322 Kincaid to assist officers who had radioed for help. Officer Hatcher directed Blakemore to arrest one Emmanuel Cordona, who was soaking wet in an alcoholic beverage. Cordona refused to obey Blakemore’s orders and Blakemore used Thor as an apprehension tool. Thor engaged Cordona, and Blakemore and Hatcher were then able to handcuff Cordona.

Officer Blakemore said Thor was the smallest of the Bakersfield Police Department’s patrol dogs. He said Thor is a 65-pound Belgian Malnois, a slimmer, smaller version of a German shepherd.

Blakemore looked at the crowd after Officer Hatcher placed Cordona in handcuffs. The crowd consisted of about 150 people who were gathered in front of the officers. As Blakemore scanned the crowd, the appellant threw a full cup of beer at Blakemore and struck his forehead. Blakemore instructed appellant to get on the ground immediately but appellant refused and walked away with a male companion. Blakemore advised appellant to get down on the ground or appellant was going to get bitten by the canine. Appellant refused and continued to walk. Blakemore then pushed appellant with his open right hand. Blakemore held Thor’s leash in his left hand. The push caused appellant to fall backward against the gate in a chain link fence separating the front yard from the sidewalk. Blakemore acknowledged that the gate toppled back a little bit. After appellant fell, he immediately tried to stand up, said “what the f***, ” and held his hands out to his sides in an aggressive manner. Blakemore ordered Thor to assist with the apprehension.

Blakemore said “beers were being thrown everywhere” and that he had had sustained “two to three direct hits” before his forehead was hit by the cup of beer. Blakemore said he had been struck with an aluminum can prior to being struck by the cup of beer.

Appellant’s companion, one Olivares, was standing two to three feet to appellant’s right. Officer Hatcher ran up and attempted to take hold of Oliveras. Oliveras and Hatcher then fell to the ground and fought one another. At that point, Thor engaged appellant in the right knee area and Blakemore used his body weight to hold appellant down. Appellant tried to push Blakemore away and shake off Thor. Appellant yelled, “get the f***ing dog off.” Hatcher and Oliveras were struggling on the nearby sidewalk at the same time. Blakemore was unable to stop appellant from pushing him or kicking at Thor. Blakemore summoned Officer Shane Shaff for assistance. As Shaff ran in to assist, Blakemore ordered Thor to release appellant.

At the time Shaff came to assist, the crowd was still closing in all around Officers Blakemore and Hatcher. Blakemore said there were numerous aggressive subjects in the crowd, and they were throwing items at the officers. Blakemore used Thor for crowd control purposes and to keep them from Officers Hatcher and Shaff. Blakemore kept the people back, cleared the streets, and dispersed them from the area. After the scene stabilized, he placed Thor in his patrol vehicle. Blakemore saw both appellant and Oliveras in handcuffs but he did not know which officer applied the handcuffs to appellant. When he first saw appellant in handcuffs, he was laying on the chain link fence, which had toppled onto the sidewalk.

Officer Blakemore testified he had seen a substance seized in relation to the appellant. According to Blakemore, that substance appeared to be marijuana. Blakemore said the marijuana was lying on the driveway beneath the chain link fence that appellant fell against. According to Blakemore, the marijuana “was directly where he [appellant] was at.” The marijuana was packed in 11 equally-sized packages made from clear plastic sandwich bags. Each bag contained three grams of marijuana. In Blakemore’s view, the packaging suggested the marijuana was possessed for sale. Blakemore observed appellant at the hospital and appellant did not appear to be under the influence of any narcotic. At the hospital, Blakemore observed that appellant had sustained an injury to the back of his head. However, Blakemore did not see any blood in the area of the crime scene where the marijuana was located.

At a May 15, 2008, hearing, Blakemore testified that Officer Hatcher had found the marijuana in appellant’s right front pocket. During cross-examination at trial, defense counsel asked Blakemore how the marijuana got from appellant’s pocket to “the ground under the fence.” Blakemore said Hatcher may have taken the contraband from appellant’s pocket and placed it or dropped it on the ground immediately upon removing it from the pocket during the confrontation.

Testimony of Officer Cooley

Bakersfield Police Officer Joseph Cooley testified he was on patrol duty with his partner, Officer Caughell, on the evening of October 27, 2007. Cooley and Caughell were dispatched to the area of 322 Kincaid after officers asked for additional help to deal with a large fight. They arrived at the scene and observed multiple fights on the sidewalk and in the middle of the street. Beer bottles, cups, and cans were thrown during the fight. The first fight they encountered involved Officers Shaff and Hatcher and Alejandro Oliveras and appellant. The two officers and the two subjects engaged in fisticuffs. A four-foot tall chain link fence had been knocked over from the struggle between the two officers and the two subjects. Officer Shaff was lying across the appellant on top of the fence. Officer Hatcher was next to Shaff and in almost the same position.

Oliveras was lying down “but kind of around to the side.” Oliveras had his hand around Hatcher’s gun belt and then touched the handle of the firearm in the belt. Cooley grabbed Oliveras by the lower legs and belt loops, pulled him off of Officer Hatcher, and dragged him into the street. Oliveras balled up his fists and took a swing at Cooley. Someone struck Oliveras’s right arm twice with a baton and the subject gave up. Cooley said he was preoccupied with Oliveras and did not see what was happening with appellant and Officers Hatcher and Shaff.

Testimony of Officer Shaff

Officer Shaff testified he was working with the Bakersfield Police Department Special Enforcement Unit on the evening of October 27, 2007. Shaff and his partner, Officer Don Reimer, responded to a radio call of a firearm at a large party in the 300 block of Kincaid Street. They arrived at the scene, saw a very large crowd, and observed multiple fights and things being thrown. Shaff estimated that “around a hundred” people were present. Shaff got out of a patrol car and heard Officer Blakemore yell his name. Blakemore was on the west curb line about two houses north of 322 Kincaid. Officer Hatcher was also present and he was involved in a physical altercation with appellant and another subject. Shaff saw appellant throw punches.

Shaff pulled out his baton and ordered appellant to stop fighting. Officer Hatcher was pushing and striking appellant. Appellant was punching Officer Hatcher. Shaff ordered appellant to stop fighting but the fight nevertheless continued. Shaff used his baton to twice strike appellant in the lower leg. Appellant fell against a chain link fence but did not go down. He continued to fight by punching at both Hatcher and Shaff. Appellant tried to punch with his right arm and Shaff tried to hit that arm with the baton. Appellant was leaning against a metal chain rolling gate at the time. The gate fell and Shaff struck appellant in the head with the baton, breaking the baton. Appellant was taken into custody without any further application of force. In Shaff’s view, appellant was violently resisting, would not listen to orders, and officers needed to immediately control the situation.

Before Officer Shaff engaged with appellant, he did not see anything on the ground. After the struggle with appellant, Shaff saw small bags of marijuana under the rolling gate. Shaff said Officer Hatcher searched appellant but he did not see what came out of appellant’s pockets because he was trying to get medical aid for appellant. According to Shaff, Hatcher said he found drugs in appellant’s pockets. However, Shaff saw the drugs on the ground under the fence and he did not know how the contraband got from appellant’s pocket to the ground. Appellant was transported by ambulance to Kern Medical Center.

Testimony of Officer Littlefield

Bakersfield Police Officer Eric Littlefield testified he was on duty on October 27, 2007, and went to 322 Kincaid Street in response to a dispatch about a large fight with suspects possibly having firearms. When Littlefield arrived at the scene with his partner, Senior Officer Torres, he saw numerous people being taken into custody while they resisted officers. Littlefield said he maced and struck a dog with his baton in the backyard. Officer Hatcher shot the dog dead. Littlefield said he broke several fence boards to enter the backyard of the Vargas home. According to Littlefield, Antonio Vargas had a pit bull chained to a pole in the backyard. Vargas pulled the pole out of the ground, picked up the chain, and began walking the dog toward the street. Littlefield testified, “He had a dog on a chain. He had a pole in his hand. He was aggressing towards officer[s].”

Testimony by Officer Williamson

Senior Police Officer Jason Williamson testified he was currently assigned to the Special Enforcement Unit of the Bakersfield Police Department. Officer Williams was not on duty on October 27, 2007. In response to a hypothetical question based upon the facts of the instant case, Officer Williamson testified the marijuana was possessed for purposes of sale. He explained, “The way it’s packaged, ten individual three-gram bags. If you’re carrying it for personal use, what’s the use of having them all be the exact same weight?” Three grams is a typical $5 bag on the street.” Officer Williamson further testified that, in his opinion, Officers Sherman, Jones, Hatcher, Shaff, and Blakemore and the police canine Thor did not use excessive force on the evening October 27, 2007.

Defense Evidence

Testimony of Judith Chavez

Judith Chavez testified she resided on 331 Kincaid Street on the corner of Virginia Street. Chavez said a lot of police arrived in her neighborhood on the night of October 27, 2007. At least five officers arrived at the scene. Chavez knew there was going to be a Halloween party at a home on her street and that her brother-in-law was going to be at that party. She said the party was “more like a family affair kind” with children present and people wearing costumes. She and her husband originally thought the party was not going to take place because it had rained earlier in the day.

On cross-examination, Chavez said she saw two little children and five older children when she first came outside of her house.

At about 10:00 p.m., Chavez and her husband, Juan Carlos Solorio, went outside their home after hearing sirens and the sounds of cars skidding. They saw a chaotic scene. According to Chavez, Bakersfield police officers were “just everywhere.” The officers were cursing and yelling at anyone who was going into the street. She later testified the officers engaged in a lot of yelling and screaming but the people from the neighborhood did not. She did not see any individuals throwing beer cups or bottles at officers or yelling obscenities at police officers. Chavez saw officers arrest one neighborhood woman in the presence of her two children.

Chavez testified “there was a lot of brutality that I was experiencing, like I was actually seeing.” As an example, she described an officer who used a baton to beat someone who was on the ground. Chavez went inside her home, took the phone, went back outside, and called Channel 17 news. The beating continued during her brief telephone call to Channel 17. After she made the call, she noticed that appellant was the beaten person on the ground. She said appellant was a friend of her brother-in-law and the two men had grown up together. Chavez said she was scared for appellant’s safety because she “felt like the cop was going to kill him.” She explained that appellant was lying face down during the beating and that two officers were around him. She saw appellant being taken away by ambulance. Chavez saw another male being detained by the police. According to Chavez “this person kept complaining about his handcuffs being too tight.” Although the second male had been restrained by police, he banged his head against the interior of the rear passenger window of a police car.

Chavez said a tall, red-faced Caucasian officer opened the police car door and aggressively kicked the detained male. The officer then removed the second male from the police car and placed him in a second police car.

On January 17, 2008, Chavez signed a written statement under penalty of perjury describing her observations of the events of October 27, 2007. Chavez’s written statement did not mention the man with a black bag over his head or the officer kicking the detainee in a police car.

Ten minutes later, Chavez heard someone saying “it burns, it burns.” She saw a man with a black bag over his head standing between two officers. The man’s body went weak but she was not sure whether he passed out. The officers each grabbed the man by the side and “threw him in a cop car.” Chavez said that officers took both appellant and the other male away. She characterized the beating of appellant as “unreal” and said she was scared. Chavez said she saw the baton go up and down four or five times and said appellant was laying flat on the ground when the baton made contact with appellant’s head. She did not see the baton break but did see blood coming from the side of appellant’s face. Chavez said appellant did not fight back during the encounter with the officers. After the events of October 27, Chavez called Internal Affairs at the Bakersfield Police Department and complained about the officers’ treatment of appellant. The day after the incident, Chavez saw six officers at the Vargas home.

Rebuttal Evidence

Bakersfield Police Officer Don Reimer testified he responded to 322 Kincaid Street on the evening of October 27, 2007, after receiving a call about a large party. As Officer Reimer traveled to the scene, he received a radio dispatch from other officers to expedite his arrival. Officer Shaff was Reimer’s partner that evening. They arrived at the scene and parked four houses north of 322 Kincaid. Upon arriving, Officer Shaff got out of the patrol car and began running southbound. Reimer walked in a southbound direction and saw Shaff and Officer Hatcher wrestling appellant on the ground. Hatcher saw Reimer and said, “Don, I need help.”

Shaff was on top of the subject and they were located against a fence. Reimer helped Shaff take the appellant into custody. Reimer did not see Shaff with a baton but did see bleeding at the back of appellant’s head. Reimer handcuffed appellant and stayed with him until medical aid arrived. An ambulance transported appellant to Kern Medical Center. Reimer and Shaff also went to KMC. Reimer saw appellant and said he had a laceration to the back of his head and an injury to his knee.

Reimer said he saw more that 20 people in the street when he and Shaff arrived at 322 Kincaid on October 27, 2007. He testified, “There were a lot of people running in between cars, running toward the house, running away from the house.” Reimer was concerned about being ambushed and injured.

Officer Shaff testified, “I ran up towards the house at 322 Kincaid. I heard an officer, which is Officer Blakemore, yell my name. I came back. I saw Officer Hatcher fighting with two subjects. I ran up to help him. I did pull my baton and I did strike Mr. Bonilla three times with my baton. The third time it broke. Unfortunately I hit him in the head. And that ended the fight. And then we took him into custody.” Shaff said Officers Hatcher, Blakemore, and Reimer did not use their batons. Shaff also said that Hatcher engaged in a physical altercation with appellant. Shaff said he was not demoted or reprimanded because of this incident.

DISCUSSION

I. SUBSTANTIAL EVIDENCE SHOWED THAT THE RESPONDING OFFICERS WERE LAWFULLY PERFORMING THEIR DUTIES

Appellant contends the prosecution failed to prove beyond a reasonable doubt that Officers Blakemore and Shaff were lawfully performing their duties, an element of obstructing/resisting an executive officer (§§ 69, 148).

A. Statutory Law

Penal Code section 69, as charged in counts 4 and 5, states:

“Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”

Penal Code section 148, subdivision (a)(1), as charged in count 8, states in relevant part:

“Every person who willfully resists, delays, or obstructs any … peace officer … in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”

B. Case Law

Section 69 sets forth two separate ways by which an offense can be committed. The first method is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law. The second method is resisting by force or violence an officer in the performance of his or her duty. The first method of violating section 69 has been called an “attempt to deter.” The second method has been called “actually resisting an officer.” The first type of offense can be accomplished by a threat unaccompanied by any physical force. Such a threat may involve either an officer’s immediate or future performance of his duty. The second type of offense involves force or violence by the defendant against an officer engaged in his or her duties at the time of the defendant’s resistance. Section 148, subdivision (a) is a lesser included offense to the second prong of section 69. (People v. Carrasco (2008) 163 Cal.App.4th 978, 984-985.) When a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed. (People v. Cruz (2008) 44 Cal.4th 636, 673.)

C. Standard of Review

In assessing a claim of insufficiency of evidence, the task of the appellate court is to review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence. Substantial evidence is that which is reasonable, credible, and of solid value, such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.) If the circumstances reasonably justify the findings of the trier of fact, the opinion of the appellate court that the circumstances might also be reasonably reconciled with a contrary finding does not mandate a reversal of the judgment. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) Under California law, it is the duty of a jury to acquit a criminal defendant if it finds circumstantial evidence susceptible to two interpretations, one of which suggests guilt and the other which suggests innocence. Nevertheless, it is the jury and not the appellate court which must be convinced of the defendant’s guilt beyond a reasonable doubt. (Ibid.)

D. Appellant’s Specific Contention

In his opening brief, appellant argues:

“Law abiding citizens appreciate and respect the role of law enforcement in protecting and serving the community. In turn they expect that law enforcement will treat them with respect and dignity and act professionally at all times. This is particularly true because law enforcement officers exercise the power to effect warrantless arrests and use deadly force in discharging their duties. The events that occurred on Kincaid Street on the evening of October 27, 2007, illustrate a disturbing example of what happens when the community quid pro quo fails and the result is an unwarranted dragnet of arrests, including that of appellant.

“Officer Sherman was the officer most responsible for the chaos that ensued in reaction to his entrance onto the Vargases’ private property, in pursuit of an individual later found to have no weapon, on the basis of a vague description from an unreliable informant and absent any corroboration through personal observation. The evidence available to the responding officers did not satisfy the ‘specific and articulable’ facts necessary to support probable cause for the warrantless entry onto the Vargases’ property. This abuse of authority rendered all subsequent enforcement action unlawful ab initio.

“Along with Officers Mara and Jones, Sherman made the decision to disperse the entire otherwise peaceful crowd of 150 partygoers, including children, immediately upon entry onto the property. He did so without attempting to identify the property owners and hosts of the party, declaring the back yard a ‘crime scene’ on the basis of his unsupported suspicion that firearms would be found there.

“The outrage and derision that Sherman received in response was understandable, even if its excessive acts of rebuke may have been unjustified. Society rightly affords police a wide range of reasonableness in exercising professional judgment. Police view themselves as professionals because they are highly trained, disciplined, and operate within a military-style command structure. But the badge and uniform do not afford officers carte blanche to impose their will on peaceful citizens based on uncorroborated hunches of criminal activity.”

E. Discussion

Appellant devotes a substantial portion of his opening brief to a detailed recitation and reweighing of the evidence from the defense perspective. On appeal, the court “must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be ‘ “of ponderable legal significance... reasonable in nature, credible and of solid value.” ’ ” (People v. Mercer (1999) 70 Cal.App.4th 463, 466; accord, People v. Poe (1999) 74 Cal.App.4th 826, 830.) The reviewing court is foreclosed from reweighing the evidence and redetermining the credibility of witnesses and must, instead, resolve all conflicts in favor of the judgment and draw all reasonable inferences in its support. (People v. Mercer, supra, 70 Cal.App.4th at p. 467; accord, People v. Poe, supra, 74 Cal.App.4th at p. 830.)

This court has long held a recitation of only a defendant’s evidence is not the demonstration contemplated under the substantial evidence rule. If defendants contend some particular issue of fact is not sustained, they must set forth in their brief all of the material issue on the point and not merely their own evidence. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.)

We have summarized the record in the statement of facts above. We reiterate, at 11:00 p.m. on October 27, 2007, one David Ivy dialed 911, provided his phone number, and advised dispatcher Jennifer Jacobs, “They having a big ‘ol gang fight in my backyard, ” at an address on Kincaid in Bakersfield. In response to questioning by Jacobs, Ivy said he did not know the identity of the people, advised that anywhere from 10 to 20 of them had “guns and all kinds of stuff, ” and repeatedly asked her to send the police. Ivy said the people with guns were Hispanic and dressed in hoods and hats. Ivy emphasized “it’s a big ‘ol gang fight and people got guns, and they, they gonna start shooting.”

According to Officer Sherman, the dispatcher reported a large fight was taking place in the 300 block of Kincaid and suggested that gang members with firearms were involved. Sherman went to the scene and stopped at 4th and Kincaid Streets. He saw vehicles in the 300 block of Kincaid with their headlights illuminating at least 75 people who were blocking the street from sidewalk to sidewalk. When Officers Caughell and Cooley arrived at the scene they saw several hundred people in the roadway and in the front yards of residences in the 300 block of Kincaid. According to Caughell, “[T]here appeared to be fights going on everywhere.”

Canine Officer Blakemore arrived at the scene and characterized it as “the most chaotic riot I’ve seen in the six years that I’ve been here.” Blakemore said 150 to 200 males and females were running from the driveway area of 322 Kincaid through the street. Officer Cooley testified he and his partner, Officer Caughell, were dispatched to the area of 322 Kincaid after officers asked for additional help to deal with a large fight. They arrived at the scene and observed multiple fights on the sidewalk and in the middle of the street. Beer bottles, cups, and cans were thrown during the fight. Officer Shaff and his partner, Officer Don Reimer, responded to a radio call of a firearm at a large party in the 300 block of Kincaid Street. They arrived at the scene, saw a very large crowd, and observed multiple fights and things being thrown. Shaff estimated that “around a hundred” people were present.

In making a substantial evidence determination, we do not reweigh the evidence, resolve conflicts in the evidence, draw inferences contrary to the verdict, or reevaluate the credibility of witnesses. (People v. Little (2004) 115 Cal.App.4th 766, 771.) Instead, we look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.) Although we review the whole record, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, circumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt. (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (People v. Bradford, supra, at p. 1329; People v. Panah, supra, at p. 488.)

Appellant parses the record on appeal in a vigorous attempt to recast the facts elicited at trial, i.e., to show that the officers were not engaged in the lawful performance of their duties. A criminal defendant cannot be convicted of an offense against a peace officer engaged in the performance of duties unless the officer was acting lawfully at the time. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217, superseded by statute on another point as stated in In re Steele (2004) 32 Cal.4th 682, 691.) The court, not the jury, usually decides whether police action was supported by legal cause. Nevertheless, disputed facts bearing on the issue of legal cause must be submitted to the jurors for purposes of the engaged-in-duty element of the offense. The lawfulness of the victim’s conduct forms part of the corpus delicti of the offense. (Ibid.)

In the instant case, the court instructed the jury in CALCRIM No. 2652 as follows:

“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 CALCRIM 2670 explains when an arrest or detention is lawful or unlawful and when force is unreasonable or excessive.”

CALCRIM No. 2670, as read to the jury, defined the concepts of unlawful detention and unlawful arrest and advised the jury to “consider evidence of the officer’s training and experience and all the circumstances known by the officer” when he or she detained or arrested the person in deciding whether the detention or arrest was lawful.

Appellant essentially contends that a group of Bakersfield police officers unlawfully dispersed a large, family-friendly crowd at a neighborhood Halloween party. The testifying officers said they responded to the scene after receiving a radio dispatch about the presence of a firearm at a large gathering. One of the responding officers characterized that gathering as a “chaotic riot, ” among other things. The direct evidence of a single witness entitled to full credit is sufficient for proof of any fact. (Evid. Code, § 411.) Moreover, the appellate court does not reweigh the evidence (People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact (In re Frederick G. (1979) 96 Cal.App.3d 353, 367.) The jury disbelieved the defense version of events and found, for purposes of counts 4 and 5, that Officers Blakemore and Shaff lawfully performed their duties as peace officers when they subdued and arrested the appellant. Substantial evidence supported the verdicts of guilt.

II. DEFENSE COUNSEL WAS NOT INEFFECTIVE BY ELICITING HEARSAY TESTIMONY FROM ONE OF THE OFFICERS ABOUT THE SOURCE OF THE MARIJUANA BAGGIES

Appellant contends his trial counsel was ineffective by eliciting inadmissible testimony about the source of the bagged marijuana.

A. Appellant’s Contention

Appellant specifically argues:

“Officer Blakemore was the first prosecution witness to identify appellant in court. [Citation.] As soon as he finished helping Officer Hatcher with Cordona, appellant threw beer on him. Oliveras was standing next to him, a distance of no more than two or three separating them. [Citations.] Oliveras was standing with his hands to his sides or in his pockets. [Citation.] Just after this testimony on direct examination, the prosecution indicated that Officer Hatcher would not be testifying. [Citation.]

“Next, Blakemore testified that he observed marijuana in packaging on the ground beneath the fence, near the point where appellant had fallen against it. [Citations.] He had been called as a witness to identify the substance as marijuana. [Citations.] When Blakemore testified that he seized the marijuana ‘in relation to’ appellant, appellant objected to the form of the question. [Citation.] The court overruled the objection. [Citation.] Blakemore then offered his expert opinion that the marijuana was possessed for sale based on its packaging. [Citation.]

“Blakemore searched Oliveras and found a plastic orange lighter in his possession and $14 in currency. [Citation.]

“On cross-examination, defense counsel elicited hearsay from Blakemore, as indicated in the police report, that Hatcher claimed to have searched appellant, and after finding the contraband in appellant’s right front pocket, he dropped it on the ground near appellant. [Citation.] On further cross-examination, defense counsel elicited the fact that Blakemore did not actually see the marijuana come out of appellant’s pocket. [Citation.] He only heard that from Hatcher. [Citation.]

“On recross-examination, defense counsel again elicited the hearsay statement of Hatcher telling him it was from appellant’s right front pocket.” [Citations.] (Footnote omitted.)

B. Law Governing Effective Assistance of Counsel

The right to counsel protects the due process right to a fair trial not only by guaranteeing “access to counsel’s skill and knowledge” but also by implementing the constitutional entitlement to an “ ‘ample opportunity to meet the case of the prosecution.’ ” (Strickland v. Washington (1984) 466 U.S. 668, 684-686 (Strickland).) To establish ineffective assistance, the defendant must show that counsel’s performance “fell below an objective standard of reasonableness” and prejudiced the defense. (Id. at pp. 687- 692; People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) To establish prejudice, the defendant must make a showing “sufficient to undermine confidence in the outcome” of a “reasonable probability” that but for counsel’s performance “the result of the proceeding would have been different.” (Strickland, supra, at pp. 694; Ledesma, supra, at pp. 217-218.) A reviewing court can adjudicate an ineffective assistance claim solely on the issue of prejudice without evaluating counsel’s performance. (Strickland, supra, at p. 697.)

“In order to demonstrate ineffective assistance, a defendant must first show counsel’s performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms. [Citation.] Second, he must show prejudice flowing from counsel’s performance or lack thereof. Prejudice is shown when there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]” (People v. Williams (1997) 16 Cal.4th 153, 214-215.) Generally, the failure to object is considered a matter of trial tactics “as to which we will not exercise judicial hindsight. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 520.) In California, there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland, supra, 466 U.S. at p. 689; People v. Lucas (1995) 12 Cal.4th 415, 436-437.)

C. Background of Contention

During the examination of Officer Blakemore, defense counsel objected to a photo of Officer Hatcher taken about 25 minutes after the incident. Counsel advised the court, “I understand he’s not going to be testifying and we don’t have an opportunity to cross-examine him on that photograph.” A short time later in the proceedings, defense counsel inquired whether Officer Hatcher was available to testify. The prosecutor informed the court and counsel that she would not be calling Officer Hatcher. She further advised that defense counsel could call Hatcher if he was under a defense subpoena.

Defense counsel asked that Hatcher be made available under the prosecution subpoena and said he would move for a mistrial and dismissal if he was unavailable to testify. The court informed defense counsel it would take up the Hatcher matter at the close of the proceedings for that day.

During the cross-examination of Officer Blakemore, defense counsel tried to impeach the witness’s testimony with prior hearing testimony about the location of the marijuana. At the prior hearing, Blakemore said Officer Hatcher found 11 bindles of marijuana in appellant’s right front pocket. At trial, Blakemore said the bindles were on the ground under a chain-link fence. When asked how the contraband got from appellant’s pocket to the ground, Blakemore speculated that Hatcher took it out of appellant’s pocket and immediately put it or dropped it on the ground.

On redirect examination, Blakemore said he did not actually see the marijuana come out of appellant’s pocket. However, Blakemore confirmed that Officer Hatcher said that he took the marijuana out of the pocket. According to Blakemore, there was a possibility the contraband could have dropped out of the pocket during Hatcher’s encounter with appellant. Blakemore noted that appellant was lying on his right side on top of the fallen gate and that the location of the bindles on the ground was consistent with the location of appellant’s right pocket. On recross-examination, Blakemore acknowledged it was possible for the marijuana to have dropped from appellant’s pocket onto the ground. However, Hatcher did not tell that to Blakemore. Hatcher simply said he found the contraband in appellant’s right front pocket. On cross-examination, Officer Shaff testified he was aware that Hatcher said he found drug’s in appellant’s pocket. Shaff also confirmed that he saw the drugs on the ground under the fence. When defense counsel asked how the drugs went from the right pocket to the ground, Shaff said he did not know and that he would have to speculate.

At the close of the proceedings that day, the prosecutor confirmed she would not be calling Officer Hatcher as a witness. Defense counsel said he wanted Officer Hatcher as a rebuttal defense witness and asked the court to direct the prosecution to make him available. Defense counsel said he did not have Hatcher under subpoena because he relied on the prosecution’s representation that Hatcher would be called as a prosecution witness. The court declined to order the prosecution to make Hatcher available as a defense witness noting, “[T]he fact the People have decided not to call him I don’t think means that you then have the right to ask the Court to order them to bring him [i]n.”

At the close of the People’s case-in-chief, the court dismissed counts 1 and 2, on motion of the prosecution, for lack of a complaining witness, i.e., Officer Hatcher. The court also dismissed count 3 for insufficient evidence to sustain a conviction, i.e., the absence of evidence regarding Hatcher’s training and experience and circumstances known by him when he arrested or detained appellant. Defense counsel later renewed a section 1118.1 motion to dismiss count 6 (possession of marijuana for sale) due to the unavailability of Officer Hatcher. Defense counsel asserted he was unable to cross-examine the officer with respect to where he found the marijuana. In an apparent effort to demonstrate an inconsistency in the evidence or impeach the credibility of testifying officers, defense counsel also offered to stipulate “that Officer Hatcher would testify that he found the marijuana in the right front pocket of Mr. Bonilla.…” Defense counsel explained he was willing to so stipulate “because otherwise we don’t have an opportunity to get that fact in front of the jury, and in reality it [the state of the evidence] would be misleading.” The prosecutor declined to so stipulate, although such stipulation would have helped the prosecution case. The prosecutor noted that Hatcher’s statement was hearsay, there was no applicable exception to the hearsay rule allowing for the admission of such evidence “and I think it opens it up to being reversed.” Defense counsel maintained there was an exception for Officer Hatcher’s statement at the preliminary hearing because Blakemore testified pursuant to Proposition 115. Defense counsel also asserted “the unavailability of Officer Hatcher … could have been cured by the prosecution enforcing the subpoena he was legally obligated to abide by, even though we didn’t subpoena him.” The prosecutor maintained both the prosecution and defense knew Hatcher’s location and the defense had the same ability to subpoena Hatcher.

Proposition 115, enacted in 1990, adopted article I, section 30, subdivision (b), of the California Constitution, declaring hearsay evidence admissible at preliminary examinations in criminal cases, as may be provided by law. (Whitman v. Superior Court (1991) 54 Cal.3d 1063, 1070 (Whitman).) In addition, the measure amended Penal Code section 872, subdivision (b), to provide that a probable cause determination at a preliminary examination may be based on out-of-court declarants’ hearsay statements related by a police officer with certain qualifications and experience. (Whitman, supra, 54 Cal.3d at p. 1070.) Additionally, the measure added Evidence Code section 1203.1 to provide a preliminary examination exception to the general requirement that all hearsay declarants be made available for cross-examination. (Whitman, supra, 54 Cal.3d at p. 1070.) Further, the 1990 measure amended Penal Code section 866, subdivision (a), to give magistrates discretion to limit defendants’ right to call witnesses on their behalf. (Whitman, supra, 54 Cal.3d at pp. 1070-1071.) Finally, the measure added Penal Code section 866, subdivision (b), explaining that: “ ‘It is the purpose of a preliminary examination to establish whether there exists probable cause to believe that the defendant has committed a felony. The examination shall not be used for purposes of discovery.’ ” (See Whitman, supra, 54 Cal.3d at p. 1071.) In 1991, the Supreme Court construed Proposition 115 to allow a qualified law enforcement officer to relate single-level hearsay at a preliminary hearing, if the officer had sufficient knowledge of the crime or the circumstances under which the out-of-court statement was made so as to provide meaningful assistance to the magistrate in assessing the reliability of the statement. (People v. Miranda (2000) 23 Cal.4th 340, 348-349, citing Whitman, supra, 54 Cal.3d at pp. 1072-1075.)

During closing argument, defense counsel stated:

“To the marijuana. [¶] Initially, it came out of his right front pocket. Officer Hatcher is the one that searched him and found it. Then it dropped through the fence where he was backed up against. They found marijuana, money and a cell phone. [¶] Well, where -- where did the cell phone drop, if it dropped? [¶] What about the cell phone? No pictured [sic]. Just verbal. Just statements from police officers that had a stake in the outcome of this case. [¶] No phone. Right?

“But he did search, he said, Oliveras. Remember that? And found a lighter. [¶] And officer Caughell testified that Oliveras was under the influence. Remember that? [¶] Well, did the marijuana … come from Oliveras? [¶] And where is he at? Where’s he at. He’s not here. I’ll tell you why, because he didn’t get any injuries. [H]e isn’t a risk to Hatcher … Shaff, or Blakemore. That’s why.”

In the remainder of his argument, defense counsel repeatedly pointed out that Hatcher was not present at trial and therefore could not be questioned.

In closing argument, the prosecutor stated:

“There was quite a bit of mention of things that are along the same lines. And that is that you cannot consider during your deliberations and you cannot speculate about it. Officer Hatcher. [¶] Those counts aren’t in front of you today. Those are things that you are not deciding today. [¶] There is no evidence presented to you why he’s not here. He could be in the hospital. He could be out of state. None of that has been presented. You do not have evidence. [¶] There’s a lot of officers that were there. [¶] I will say this, though: There’s a thing called subpoena power. Both I have it and so does defense counsel. [¶]... [¶] If in your deliberations it comes up that you’re speculating and saying well, they didn’t call him, why didn’t they call him, that’s something that’s not evidence. And you cannot speculate to it.”

An hour after the jury commenced deliberations, they requested a read back of the testimony of Officers Blakemore and Shaff regarding the seizure of the marijuana. The court reporter re-read the requested portion of the testimony. Later that day, defense counsel unsuccessfully renewed his motion for dismissal on the ground that Officer Hatcher, a material witness, was unavailable to testify. The next day, the jury requested a read back of Officer Blakemore’s testimony regarding the search of appellant. After the reporter re-read the testimony, the foreman indicated the jury was seeking Blakemore’s testimony relating to the actual search. The court confirmed, “From Blakemore that’s it, then.” The jury reached a verdict 20 minutes later. Appellant subsequently moved for a new trial based on a juror declaration that “the controlling issue on count 6 was what BPD Officer Hatcher (Officer Hatcher) told the other officers about finding the marijuana on the defendant.” The court denied the motion after hearing testimony from that juror and arguments by counsel.

D. Analysis

Appellant contends his trial counsel was ineffective by eliciting from Officer Blakemore the hearsay statement of Officer Hatcher that the marijuana was from appellant’s right front pocket. A careful reading of the record reveals that defense counsel initially elicited the evidence on cross-examination of Officer Blakemore in an attempt to impeach the testifying officer with contradictory evidence elicited in a prior hearing. At the prior hearing, Blakemore testified that Hatcher located the bindles of marijuana in appellant’s right front pocket. At trial, Blakemore testified that he saw the bindles under a chain link fence. The appropriate extent of impeachment and cross-examination is a matter of counsel’s tactical choice. (People v. Freeman (1994) 8 Cal.4th 450, 490.) Furthermore, a decision involving tactics or strategy will be grounds for reversal only where counsel had no rational tactical purpose for his act or omission. (People v. Frye (1998) 18 Cal.4th. 894, 979-980, disapproved on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) On direct appeal, trial counsel’s “competency is presumed unless the record affirmatively excludes a rational basis for the trial attorney’s choice. [Citations.]” (People v. Musselwhite (1998) 17 Cal.4th 1216, 1260, italics in original.)

In this case, defense counsel made a reasonable tactical decision to undermine Officer Blakemore’s credibility regarding the location of the marijuana by pointing out an apparent inconsistency between his statements at the prior hearing and his statements at trial. Counsel also attempted to undermine Blakemore’s credibility by pointing out other inconsistencies regarding the presence of bottles at the scene, appellant’s location at the scene, and whether appellant’s hand was held palm up or palm down.

We defer to counsel’s tactical decisions in examining ineffective assistance claims and there is a “strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’ [Citation].” (Strickland, supra, 466 U.S. 668, 689; People v. Lucas, supra, 12 Cal.4th 415, 436-437.) “ ‘Reviewing courts will reverse convictions on the ground of inadequate counsel only if the record on appeal affirmatively discloses that counsel had no rational tactical purpose for his act or omission.’ [Citation.]” (People v. Zapien (1993) 4 Cal.4th 929, 980.)

In our view, defense counsel had a rational tactical purpose for his questioning of Officer Blakemore and reversal is not required.

III. APPELLANT IS NOT ENTITLED TO ADDITIONAL CONDUCT CREDITS

Citing this court’s Supplemental Briefing Order of February 11, 2010, appellant contends he is entitled to additional custody credits under the January 25, 2010, amendments to section 4019.

Our briefing order states in relevant part:

“In pending appeals in which an appellant arguably is entitled to additional presentence custody credits under the January 25, 2010, amendments to Penal Code section 4019, the court will deem the following issues raised without additional briefing:

(1) Under amended Penal Code section 4019, appellant is entitled to recalculation of presentence work and custody credits;

(2) To hold otherwise would violate equal protection principles.

This order applies to all appeals.”

Under section 2900.5, a person sentenced to state prison for criminal conduct is entitled to credit against the term of imprisonment for all days spent in custody before sentencing. (§ 2900.5, subd. (a).) In addition, section 4019 provides that a criminal defendant may earn additional presentence credit against his or her sentence for willingness to perform assigned labor (§ 4019, subd. (b)) and compliance with rules and regulations (§ 4019, subd. (c)). These forms of section 4019 presentence credit are called, collectively, conduct credit. (People v. Dieck (2009) 46 Cal.4th 934, 939, fn. 3.)

The court sentenced appellant on July 24, 2009, and calculated appellant’s conduct credit in accord with the version of section 4019 then in effect, which provided that conduct credit could be accrued at the rate of two days for every four days of actual presentence custody. (Former § 4019.) On October 11, 2009, the California Legislature amended section 4019, effective January 25, 2010, to increase the number of presentence days of conduct credit certain defendants could earn. (Stats. 2009-2010, 3d Ex. Sess., ch. 28X, § 50.) Subdivision (f) of that version of section 4019 provided in pertinent part: “It is the intent of the Legislature that if all days are earned under this section, a term of four days will be deemed to have been served for every two days spent in actual custody.…”

The enhanced credit provisions applied to defendants who were not required to register as sex offenders and were not being committed to prison for, or had not suffered a prior conviction of, a serious felony as defined in section 1192.7 or a violent felony as defined in section 667.5, subdivision (c). We assume without deciding that appellant is not required to register as a sex offender and has not suffered a prior conviction of a serious or violent felony.

The issue of whether the amendment applies retroactively is currently before the California Supreme Court in People v. Rodriguez (2010) 183 Cal.App.4th 1, review granted June 9, 2010, S181808, and People v. Brown (2010) 182 Cal.App.4th 1354, review granted June 9, 2010, S181963.

This court, in its Supplemental Briefing Order, ordered that in pending appeals in which the appellant is arguably entitled to the benefit of the more generous conduct credit accrual provisions of the 2010 amendment to section 4019, would be deemed raised, without additional briefing, the contention that prospective-only application of the amendment is contrary to the intent of the Legislature and violates equal protection principles. We deem these contentions raised here. As we explain below, they are without merit.

Under section 3, it is presumed that a statute does not operate retroactively “ ‘absent an express declaration of retroactivity or a clear and compelling implication that the Legislature intended [retroactive application].’ ” (People v. Alford (2007) 42 Cal.4th 749, 753.) The Legislature neither expressly declared, nor does it appear by “ ‘ “clear and compelling implication” ’ ” from any other factor(s), that it intended the amendment operate retroactively. (Id. at p. 754.) Therefore, the amendment applies prospectively only.

We recognize that in In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that the amendatory statute at issue in that case, which reduced the punishment for a particular offense, applied retroactively. However, the factors upon which the court based its conclusion that the section 3 presumption was rebutted in that case do not apply to the amendment to section 4019.

We conclude further that prospective-only application of the amendment does not violate appellant’s equal protection rights. Because (1) the amendment evinces a legislative intent to increase the incentive for good conduct during presentence confinement, and (2) it is impossible for such an incentive to affect behavior that has already occurred, prospective-only application is reasonably related to a legitimate public purpose. (People v. Hofsheier (2006) 37 Cal.4th 1185, 1200 [legislative classification not touching on suspect class or fundamental right does not violate equal protection guarantee if it bears a rational relationship to a legitimate public purpose].)

Appellants claim for additional conduct credits is rejected.

DISPOSITION

The judgment is affirmed.

WE CONCUR: Wiseman, Acting P.J., Kane, J.


Summaries of

People v. Bonilla

California Court of Appeals, Fifth District
Feb 16, 2011
No. F058560 (Cal. Ct. App. Feb. 16, 2011)
Case details for

People v. Bonilla

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MARVIN VLADIMIR BONILLA…

Court:California Court of Appeals, Fifth District

Date published: Feb 16, 2011

Citations

No. F058560 (Cal. Ct. App. Feb. 16, 2011)