Opinion
D076872
06-29-2020
THE PEOPLE, Plaintiff and Respondent, v. JALEN OWENS, Defendant and Appellant.
Britton Donaldson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN 400846) APPEAL from a judgment of the Superior Court of San Diego County, David G. Brown, Judge. Affirmed. Britton Donaldson, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance by Plaintiff and Respondent.
BACKGROUND
At approximately 7:30 p.m. on June 1, 2019, City of Escondido police officers Vincent Abeyta and Anthony Lay were dispatched to the Interfaith Community Services offices (Interfaith) on West Washington Street. They were sent to investigate a possible disturbance between defendant Jalen Owens and the victim. The officers recognized defendant's name from a prior recent incident involving these same two parties, where defendant and the victim had a confrontation which involved the victim throwing urine on defendant's face and defendant assaulting the victim with a tire and vandalizing a recreation vehicle belonging to the victim's friend.
The victim in the probation report was identified as Cullen B. Dispatch referred to the victim as "Mr. Colen." During trial, the lawyers also referred to the victim as Colen B. For convenience, we will refer to the reporting party as "victim."
When the officers arrived at Interfaith, they were directed to defendant's location. They approached defendant to ask about the incident. As they approached, the officers noticed defendant had a large, sheathed hunting knife with an 8-inch blade attached to a strap on his backpack across his chest.
Defendant appeared nervous and agitated. His hands were up within inches of the knife and he was making "wringing" motions with them. The officers spoke with defendant observing he was "elevated" in his behavior. He complained the police were always "fucking with [him]," and refused to give officers his name or date of birth. When defendant was asked to put his hands behind his back, he took a step back, into a "bladed stance." Officer Abeyta then unholstered his weapon and defendant replied he was not scared of a gun. The officer re-holstered his gun when he saw defendant was not reaching for his knife.
The officers then asked defendant multiple times to put his hands behind his back, and he refused. The officers then warned him that they were going to have to use force on him. Defendant responded, "If you fucking touch me, bro, I'm going to go crazy." When the officers called for backup, defendant stated, "Try it."
Officer Abeyta then tackled defendant after which Officer Lay tried to gain control of defendant's arms. Officer Abeyta tried to pull defendant's left arm behind his back, but defendant pulled his arm away, and he squirmed and kicked, stating, "I'm not resisting." Officer Abeyta concluded they were not going to be able to restrain defendant's arms so he tasered defendant in the upper right buttock. They then placed defendant's arms behind his back and handcuffed him. Other officers arriving at the scene recorded parts of the encounter with their body-worn cameras.
Three officers at trial testified to other instances of prior bad acts by defendant. Defendant offered evidence that he suffered from ADHD anxiety disorder; and that in February 2019 he had had a prior altercation with the victim. He generally agreed with the accounts of prior bad acts offered by the officers, admitting in one instance he told an officer he would "beat his ass"; and in another instance he told two officers he would "kill them" and "make a scene." Defendant admitted in each of these instances he was using drugs, which may have included "meth, heroin, cocaine, marijuana, [and] alcohol."
On June 5, 2019, a complaint was filed charging defendant with one count of resisting arrest in violation of Penal Code section 69, with a special allegation of two prison priors in violation of sections 667.5, subdivision (b), and 668.
All further statutory references are to the Penal Code unless otherwise noted.
On July 23 and August 28, 2019, defendant made two Marsden motions. They were both denied.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden). --------
At the beginning of trial defendant requested a continuance, which was denied. He next requested that the three prior bad acts be excluded under Evidence Code sections 1101, subdivision (b), and 352. That request was denied, as was his verbal motion under Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
The court found count 1 to be true and also found true the alleged prison priors.
On November 19, 2019, defendant was sentenced to the upper term of three years on count 1. The court struck the two alleged prison priors. Fines and fees were imposed, but stayed pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157. Defendant received a total of 344 days of credits. Defendant filed a timely notice of appeal.
ANALYSIS
Defendant's counsel on appeal has reviewed the record in this case and consulted with Appellate Defenders, Inc. He has presented a summary of the facts and proceedings with citations to the record reflecting areas he considered. Pursuant to People v. Wende (1979) Cal.3d 436 (Wende) and Anders v. California (1967) 386 U.S. 738 (Anders), he urges no specific contentions on appeal, but to assist this court in reviewing the record and fulfilling its obligations under Wende and Anders, he points out certain areas for our consideration.
Counsel and this court have informed defendant of his right to file an independent brief. He has not done so.
Counsel, who assists the court with citations to the record, and case and statutory law, asks this court to focus on the following issues:
1) whether the court prejudicially erred in admitting evidence of defendant's prior bad acts;
2) whether defense counsel was ineffective for failing to renew during trial, an objection for admission to the prior bad acts under Evidence Code section 1101, subdivision (b);
3) whether the court abused its discretion by denying defendant's motion to reduce the felony to a misdemeanor, in imposing the upper term of three years, and denying a split sentence;
4) whether the court abused its discretion by verbally denying defendant's Pitchess motion brought the first day of trial;
5) whether the court abused its discretion in denying defendant's request for a trial continuance;
6) whether the court erred in denying defendant's July 23 and 28, 2019, Marsden hearing requests;
7) whether there was sufficient evidence to support the lawfulness of defendant's detention; and
8) whether the evidence is sufficient to support defendant's specific intent and threat.
We have reviewed the entire record, including both Marsden motions, and the areas defense counsel refers us to in the record. We find no arguable issue exists which requires additional briefing by defendant's counsel. (See Penson v. Ohio (1988) 488 U.S. 75, 88.)
Defendant has been competently represented on appeal.
DISPOSITION
Judgment affirmed.
BENKE, Acting P. J. WE CONCUR: AARON, J. GUERRERO, J.