August 11, 2009; vacated and opinion filed August 17, 2009
APPEAL from a judgment of the Superior Court of Kern County. Gary A. Ingle, Judge. (Super. Ct. No. SF014436A).
The opinion of the court was delivered by: Cornell, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
A jury convicted Jose Angel Flores of violating Penal Code sections 4501.1 (battery by gassing),*fn2 4501.5 (battery by a prisoner on a nonprisoner), and 69 (interfering with a peace officer in the performance of his duties). Flores argues reversal is required because the trial occurred before his Pitchess*fn3 motion was heard. We conclude that Flores waived the right to a hearing on the motion by refusing to continue the trial date.
In the published portion of the opinion, we conclude that battery by gassing is a necessarily included offense of battery by a prisoner on a nonprisoner. Accordingly, Flores should not have been convicted of violating section 4501.1 once the jury found him guilty of violating section 4501.5. We therefore will vacate the section 4501.1 conviction and remand the matter to the trial court for resentencing.
FACTUAL AND PROCEDURAL SUMMARY
Flores was imprisoned at Wasco State Prison. On November 15, 2007, he was being transported between cells by Correctional Officer Jerry Brazeal. Brazeal testified that after Flores arrived in his new holding cell, Brazeal instructed Flores to stand facing the back wall so Brazeal could exit the cell. As Brazeal left the cell, he heard Flores spit, and felt spit hit the back of his uniform. Brazeal turned around and Flores made a derogatory comment and lunged towards Brazeal. Brazeal pushed Flores against the back wall. Flores then spit in Brazeal‟s face. Flores was subdued without further incident.
Flores was charged with aggravated battery by gassing (§ 4501.1), battery by a prisoner on a nonprisoner(§ 4501.5), and interfering with an officer in the performance of his duties(§ 69). Each count also alleged that Flores had suffered a prior conviction within the meaning of section 667.5, subdivision (b). The jury convicted Flores of each count, and found the enhancement on each count to be true. The trial court sentenced Flores to the midterm of three years on count 1, one year consecutive on count 2, and one year for the section 667.5 enhancement, for a total term of five years.
I. Failure to Hear Pitchess Motion before Trial*fn4
Flores‟s counsel filed a motion seeking any complaints filed against the three correctional officers involved in the incident, as well as the records of any disciplinary action taken against the three officers (a Pitchess motion). The hearing on the motion was scheduled for July 9, 2008. The notice of motion correctly indicated that trial was scheduled for July 7, 2008, two days before the scheduled hearing on the motion.
At the June 18, 2008, motions hearing, counsel stated he was requesting a continuance of the trial date so the Pitchess motion could be heard before the trial. The People did not object to the request. The trial court advised Flores that he had a right to a speedy trial and asked if he would waive that right to permit a hearing on the Pitchess motion. Flores refused to do so. The trial court then explained that if Flores did not agree to a continuance, the trial would proceed without the information sought in the motion. Flores stated that he understood. The trial court then gave Flores an opportunity to speak with his attorney. After a short recess, Flores informed the trial court he wished to go to trial as scheduled on July 7, 2008. The trial court confirmed Flores had an opportunity to speak with his attorney and that he understood that if he went to trial on July 7 there would not be a hearing on the Pitchess motion. Flores stated he understood what he was giving up. Trial counsel then stated that he objected to going to trial on July 7.
At the June 25 trial readiness hearing, Flores‟s counsel again advised the trial court that Flores refused "to waive time" to permit a hearing on the Pitchess motion. Flores did not comment onthe issue.
First, Flores contends the above facts constituted ineffective assistance of counsel and an abuse of the trial court‟s discretion. He points out that the last day for the commencement of trial pursuant to section 1382, subdivision (a)(2) was July 20, 2008. Counsel and the trial court apparently believed this section required the trial to commence no later than July 7, 2008. This mistake, according to ...