(Sonoma County Super. Ct. No. SCR521234)
The opinion of the court was delivered by: Simons, J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Jessi Luis Garcia (appellant) appeals his conviction by jury trial of misdemeanor assault (Pen. Code, § 240)*fn1 (count 1),*fn2 resisting or obstructing an executive officer (§ 69) (count 2), auto burglary (§ 459) (count 4), and receiving stolen property (§ 496, subd. (a)) (count 5).*fn3 In a bifurcated court trial, the court found true two prior strike allegations. On appeal, appellant contends the prosecution failed to disclose the arresting police officer's taser log in violation of Brady v. Maryland (1963) 373 U.S. 83 (Brady) and engaged in misconduct during argument; the court erred in granting immunity to a prosecution witness and committed sentencing error; and defense counsel provided ineffective assistance of counsel. Appellant argues, and the People concede, that, pursuant to section 654, the six-month term imposed for the misdemeanor assault should be stayed. We accept with the concession and otherwise affirm.
Sometime between 5:00 and 5:30 a.m. on October 4, 2007, Nicholas Martinez was awakened by what sounded like a vehicle with a loud muffler. A short time later, he heard the same noise again. He then saw a light-colored Blazer park across the street from his home on Cypress. Martinez saw two men get out of the Blazer wearing long pants and black sweatshirts with their hoods up. One of the men stayed at the corner acting like a lookout. The other man crossed the street and was outside of Martinez' view. After watching the man at the corner for five or six minutes, Martinez called the police. A few minutes later, the man who had initially crossed the street out of view returned carrying a backpack and joined the man at the corner. The two men then ran together to the Blazer. They entered the Blazer and drove off while Martinez was still on the phone with the police.
At about 5:20 a.m., Michael Adamson was inside his garage on Greencrest Drive when he heard a "ruckus" outside the garage door. He heard a police officer loudly saying, "let me see your hands," and "get on the ground." When Adamson looked out the window he saw two men "going at it," with one "trying to contain the other" and one "trying to get away from the other." The man who was trying to get away managed to cross the street with the officer grabbing onto him. Adamson then heard whining and moaning as the two men rolled on the ground. After a couple of minutes, two other officers arrived to assist.
Santa Rosa Police Officer Hepp was on patrol when he received a dispatch at 5:21 a.m. regarding a possible auto burglary. Hepp did not see the Blazer at the dispatch location, but continued driving in the direction the Blazer was reported to have gone. He then saw the Blazer, activated his patrol car's lights and pursued it. The Blazer slowed, the driver's door opened and the driver, later identified as appellant, jumped out while the Blazer was still moving and took off running. Hepp parked the patrol car and pursued appellant on foot. Appellant ignored Hepp's yelling for him to stop and ran fast, swinging his arms at his sides. As Hepp got closer, appellant stopped swinging his arms, and then appellant began running with his hands tucked in front of his body. Fearing that appellant might have a weapon, Hepp drew his firearm and yelled for appellant to stop and show his hands.
Appellant stumbled and fell, then jumped up and continued running between two houses, with Hepp in pursuit. While running between the houses in the dark, Hepp felt appellant's body crash into him and holstered his firearm. Both Hepp and appellant fell to the ground. They struggled and Hepp attempted to take appellant into custody. For about two minutes, appellant kept trying to grab Hepp's firearm despite Hepp's telling him to let go and that Hepp would shoot him.
Hepp felt himself tiring, grabbed his taser, and fired the cartridge with two probes at appellant, hoping to strike any part of appellant's body. Appellant yelled but continued to struggle, swinging at Hepp's hands and arms, trying to knock the taser out of Hepp's hands. When his taser stopped working, Hepp began using his hand, forearm and elbow to strike appellant in the upper chest, face and neck. Hepp was "extremely exhausted." He then applied the taser in "contact mode" to appellant's neck and appellant fell backward. Hepp was unable to pull appellant's arms out from under him but was able to radio other officers his location. Two other officers arrived and assisted Hepp in taking appellant into custody.
As a result of his struggle with appellant, Hepp suffered abrasions to his hand, which bled slightly, and his police uniform had multiple tears. In the area where Hepp and appellant struggled, Hepp found a pair of black gloves, a flat-tipped screwdriver, a black flashlight, and a single probe from Hepp's taser. A second taser probe was found on the neckline of appellant's sweatshirt. This matched up with the two marks on appellant's neck where a probe was removed.
Brandon Rhoades and Karissa Amante were inside the Blazer when it was stopped by police. A black backpack, a purse, and a CD (compact disc) case containing CD's were found on the Blazer's rear floorboard. Empty fast food wrappers and other garbage were strewn about the vehicle. A flashlight and various tools, including pliers, screwdrivers, and a window punch were also found inside the Blazer. A black baseball batting glove was found on the sidewalk outside the Blazer's passenger door.
Santa Rosa Police Officer Ellsworth took a statement from Martinez, who directed Ellsworth to the suspected auto burglary scene. Martinez identified the Blazer as the one he had seen driving away from in front of his residence. Ellsworth contacted Nicole Andrews and asked her to check her car to see if anything was missing. Andrews reported that her purse was missing from her Honda, which had been locked and was parked in her driveway. The Honda was unlocked, items were scattered inside, the weather stripping on the passenger window was torn and it appeared the window had been pried. Andrews identified the purse found inside the Blazer as her missing purse. Anthony Mohrman, whose car was parked near Andrews's, identified the black backpack recovered from the Blazer as the backpack missing from his car.
Amante, a friend of appellant, testified that on the morning of October 4, 2007, she and appellant were in appellant's yellow Blazer going to get something to eat. En route to a Jack-in-the-Box restaurant, they stopped, exited the Blazer and Amante grabbed a backpack out of a car. She and appellant then entered the Blazer. As they drove, Amante called Rhoades, her friend, and told him about a purse she and appellant had seen inside a car. According to Amante, Rhoades "breaks into cars better than anybody I know." Appellant and Amante then picked up Rhoades, and went back to the neighborhood where they had been. Appellant and Rhoades got out while Amante waited inside the Blazer. When appellant and Rhoades returned, Rhoades had the purse. As they drove off they saw a police car behind them. Appellant began turning corners quickly and then took off running from the car. After the Blazer rolled to a stop, police officers approached.
On cross-examination, Amante said that the morning of the incident, she spoke separately to Hepp and two other officers. She said that when Hepp asked her what had happened she probably said, "Nothing. I just got back from Jack-in-the-Box, and then we were stopped." She then said she could not remember whether she told Hepp that nothing happened. She also said she might have told Hepp, "Nothing happened. I don't break into any cars or houses," and she probably told Hepp, "I don't know why [appellant] ran." She also said Hepp was rude and did not believe her story. Two weeks after the incident, Amante and Rhoades were arrested for committing another burglary. In exchange for pleading guilty to that burglary, the charges against Amante in the instant case were dropped. Amante said that on the night of this burglary she was an addict and under the influence of methamphetamine.
Amante also testified on cross-examination that, within the two weeks before trial, she told defense investigator Donald Criswell the following: On October 4, 2007, she called appellant to take her to a fast food restaurant to get something to eat, appellant picked her up in the Blazer, and Amante, appellant, and Rhoades drove to the restaurant where they ate a meal. After leaving the restaurant, she and Rhoades asked appellant to stop because Amante and Rhoades intended to break into some cars. When they asked appellant to stop, appellant did not know of their intention. Appellant waited in the Blazer while she and Rhoades got out, and Amante acted as a lookout while Rhoades broke into a car and took something from it. She opened a car and took a black backpack from it. After she and Rhoades got back in the Blazer with appellant, they did not tell appellant that they had burglarized cars. When the police began to follow them, she and Rhoades told appellant that they had burglarized the cars. Appellant then began to panic and jumped out of the Blazer while it was still running.
Amante also testified on cross-examination that while in the hallway waiting to be called to testify, she had a conversation with Sergeant Navarro. She said that for the first time, she told Navarro that appellant was involved in the instant burglaries. What she told Navarro was essentially the same as what she testified to on direct examination.
On redirect examination, Amante said when she made the false statements to Criswell she was "just trying to help [her] friend [appellant] out." However, she said her in-court statements were true. She also said she consulted her counsel before talking with Navarro; Navarro neither threatened nor pressured her prior to her statement.
Bernadette Marrufo, appellant's aunt, testified she loaned the Blazer to appellant on October 4, 2007, because he was having financial problems and needed it to get to work.
Amante stated that before testifying for the prosecution, she was arrested for leaving the courthouse without telling anyone. The court told her that if she did not come back to court it would be a violation of her probation. She was then granted immunity so that she could testify without getting in trouble on her previous charges.
Criswell testified that when he interviewed Amante on October 4, 2007, she told him that prior to seeing appellant, she and Rhoades were at her home discussing committing a burglary.
Rhoades testified that on the morning of October 4, 2007, Amante called him and said there was a purse in a car she wanted him to get and he responded, "Come get me." Rhoades said he was good at burglarizing cars. Amante and appellant then picked up Rhoades and the three drove to the home where Rhoades and Amante lived. There they used methamphetamine, got food from a fast food restaurant, then parked the Blazer about three or four blocks away from where the car containing the purse was located. Appellant showed Rhoades the car, but was not there when Rhoades broke into it. Rhoades took the purse and met up with appellant at the Blazer. Appellant drove off with Rhoades and Amante in the back seat. As the police were trying to stop the Blazer, appellant said he "couldn't get caught up," and jumped out. Rhoades said the CD's in the Blazer belonged to him.
Rhoades testified he pled guilty to the instant burglary and another burglary involving Amante. The first time he talked to Criswell, Rhoades said he was solely responsible for the October 4 burglary and appellant had no knowledge of it. After Rhoades was subpoenaed by the defense to testify, he learned that Amante had told the truth during her testimony, and he decided to tell the truth about what happened. ...