Opinion
E066969
11-15-2017
THE PEOPLE, Plaintiff and Respondent, v. ANGEL VELASQUEZ GARCIA, Defendant and Appellant.
Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1500921) OPINION APPEAL from the Superior Court of Riverside County. Mac R. Fisher, Judge. Affirmed. Kevin Smith, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury convicted defendant and appellant, Angel Velasquez Garcia, of battery by a prison inmate on a noninmate. (Pen. Code, § 4501.5; count 1.) Thereafter, defendant admitted he had suffered a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and two prior prison terms (§ 667.5, subd. (b)). The court sentenced defendant to an aggregate term of imprisonment of eight years.
All further statutory references are to the Penal Code unless otherwise indicated.
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 case, a statement of the facts, and identifying four potentially arguable issues: (1) whether the court erred in its manner of proceeding and ruling on defendant's Marsden motions; (2) whether defense counsel provided constitutionally ineffective assistance of counsel by declining to introduce evidence of the victim's alleged prior misconduct released after a Pitchess hearing; (3) whether, crediting evidence that defendant initiated the attack, sufficient evidence supported the requisite element of the offense that the victim acted in lawful performance of his duties by not engaging in excessive force; and (4) whether the jury's verdict of not guilty on a lesser included offense invalidated its verdict of guilty on the greater offense. We affirm.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
I. FACTUAL AND PROCEDURAL BACKGROUND
The victim, a correctional officer at California Rehabilitation Center in Norco, testified that at 10:00 p.m. on August 31, 2014, he relieved the previous officer supervising dorm 102. Dorm 102 consisted of an open room with a number of stacked bunks, each with an upper and lower bunk. During the night, inmates were required to remain in their bunks until the morning. The victim conducted bunk checks immediately upon coming on duty and at 12:30 a.m.; he found nothing amiss.
However, at 2:00 a.m., when the victim began another bunk check, he found the ninth upper bunk (9U) unoccupied. Defendant was the individual assigned to bunk 9U. The victim checked to see if defendant was in the restroom; the restroom was empty.
The victim then approached bunks 30 and 31 where he saw an inmate who had his back turned to him. The victim asked the inmate if he was assigned to bunk 9U. Defendant, the inmate, then stood, turned to face the victim, and attacked the victim. Defendant repeatedly struck the victim with closed fists.
The victim's personal alarm malfunctioned and his radio was ripped from his uniform. He was unable to unholster his baton or pepper spray due to defendant's proximity. Eventually, the victim was able to take defendant to the ground. As they both fell, a cell phone, which was contraband, fell from defendant's waist. The victim laid flat on top of defendant who was lying on his stomach. The victim's arm was caught underneath defendant.
Defendant continued to kick and swing his arms. The victim repeatedly told defendant to remain down and to stop resisting. The victim was eventually able to sound his personal alarm. Other officers responded. The victim was then able to handcuff defendant. The victim recovered the cell phone.
The victim sustained bleeding from abrasions on his hand and a cut to his finger, his knee was swollen and hurt, and he also sustained bruising to his upper torso. The victim incurred a tear in the left tendon of his shoulder for which he underwent surgery.
Two of the officers who responded to the victim's personal alarm testified that the victim had fallen to his knees and could not walk. Another responding officer and a nurse testified that defendant was belligerent and uncooperative when he was being medically examined. The nurse testified that, insofar as defendant allowed, she did not observe any injuries to defendant. Defendant did not complain of any injuries.
Defendant testified that he was assigned to bunk 9U. At 2:00 a.m. that night he was at his friend's bunk watching television which, so far as he was aware, was permissible. He left to go back to his bunk for counting time. As he was making his way back to his bunk he felt something around his neck choking him; he was pulled by someone behind him who picked him up and dropped him to the ground.
Defendant blacked out and woke to someone choking him. Defendant blacked out again and woke to several correctional officers coming into the dorm. He never punched or hit the person. The person never identified himself. Defendant did not have any contraband on him; he did not have a cell phone. Defendant was assigned a wheelchair a year later due to nerve and back injuries sustained as a result of the incident. The victim testified he never tried to strangle defendant.
On March 25, 2015, the People charged defendant by felony complaint with battery by a prison inmate on a noninmate. (§ 4501.5; count 1.) The People additionally alleged defendant had suffered a prior strike conviction (§§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)) and two prior prison terms (§ 667.5, subd. (b)). On July 14, 2015, defendant successfully moved to proceed in propria persona pursuant to Faretta v. California (1975) 422 U.S. 806. On October 1, 2015, the court granted defendant's request to be represented by a public defender.
After the preliminary hearing on November 9, 2015, the court found sufficient cause to hold defendant to answer. On November 23, 2015, the People filed a felony information identical to the felony complaint. On December 16, 2015, the court denied defendant's Marsden motion after holding a hearing on the request.
On April 25, 2016, defense counsel filed a Pitchess motion, requesting that the court release any of the victim's personnel records which reflected on allegations of excessive force, aggressive conduct, unnecessary violence, unnecessary force, false arrests, false statements in reports, false claims of probable cause, false testimony, and any other evidence of complaints or dishonesty. On May 26, 2016, the court conducted an in camera Pitchess hearing during which it reviewed affidavits of the custodian of records regarding the victim's personnel file. The court ordered the release of contact information for an inmate who had filed a complaint against the victim.
On July 15, 2016, records were released to defense counsel which reflected three levels of review of an inmate's complaint against the victim in which the inmate alleged the victim had spit sunflower seeds onto his personal property while searching his assigned bunk area. A staff inquiry held that the officer had not violated agency policy and administrative appeals were denied.
On July 21, 2016, the date originally set for voir dire, the court held another Marsden hearing on defendant's second request to replace defense counsel. During the hearing, defense counsel noted that at trial she was not going to adduce the evidence obtained from the Pitchess motion because it was "not relevant to what happened here because, as I told [defendant], the complaint in that case was that [the o]fficer . . . spit into the cell of an inmate which really doesn't go to his honesty, it really doesn't go to force. It's obviously incredibly rude, but it's not force and it's not lying." The court denied defendant's Marsden request.
Defendant made the Marsden request as to both cases against him. The other case, which the court repeatedly referred to as the "pruno" case, was tried separately from the instant case.
Defendant then moved to represent himself. The court granted the request. Defendant then requested a continuance, which the court denied.
On August 1, 2016, defendant requested reappointment of counsel. The court granted the request and reappointed defense counsel. On August 4, 2016, defendant made a third Marsden request. Defendant eventually withdrew his Marsden request.
During the hearing on the request, it was noted that the jury in the "pruno case" had hung.
After taking the verdict and releasing the jury, the court noted that "upon examining the verdict forms, it was apparent to the Court that the verdict rendered, and as read . . . , was the correct verdict as to Count 1 relative to the charged count. [¶] As to the matter of simple assault, the lesser included, the jury apparently did not follow [CALCRIM No.] 3517, in that having arrived at a verdict of guilty as to the greater, they nonetheless proceeded to find him not guilty of the simple assault, which was the lesser. [¶] I think that's harmless." The court then indicated that it had made a sidebar inquiry at the time with counsel, who both conceded it was unnecessary to make any further inquiry of the jury. Both counsel affirmed on the record that the court's restatement of what occurred in the sidebar was accurate.
The relevant portion of CALCRIM No. 3517 which the court read to the jury read: "If all of you agree the People have proved that the defendant is guilty of the greater crime, complete and sign the verdict form for guilty of that crime. Do not complete or sign any other verdict form for that count." --------
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. FIELDS
J.