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The People v. Jose Fidel Nunes

December 16, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
JOSE FIDEL NUNES, JR., DEFENDANT AND APPELLANT.



(Super. Ct. Nos. CM031016 & CM031843)

The opinion of the court was delivered by: Duarte , J.

P. v. Nunes

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 was charged with resisting a police officer in the performance of his duty (Pen. Code,*fn1 § 69) and the allegations that he committed the offense while released on his own recognizance (§ 12022.1) and had a strike prior (§§ 667, subds. (b)-(i), 1170.12).

The trial court denied defendant's motion to suppress (§ 1538.5) as well as his motion pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess) and Evidence Code sections 1043 to 1047. After a bench trial, the trial court convicted defendant of violating section 69 and found the enhancement allegations to be true.

Sentenced to state prison for an aggregate term of nine years, defendant appeals. Defendant contends that the trial court erroneously denied his Pitchess motion without conducting an in camera hearing. The People concede error. Because we agree with the parties that the trial court erred, we shall remand for an in camera review.

FACTUAL AND PROCEDURAL HISTORY*fn2

Shortly after midnight on December 25, 2009, Butte County Sheriff's Deputy Derek Ament received a call from dispatch that there had been a call to 911 from a cell phone, but the caller had hung up. Dispatch could not give a precise location for the origination of the call, but gave a general area which was within seven miles of Ament's location. Driving toward the area, Ament saw a car stopped on the northbound off-ramp of Highway 70 to Garden Drive. No other traffic was on the road. Ament drove to the car and shined a spotlight into it. A woman was the driver; a man (later identified as defendant) was in the passenger seat. The woman drove northbound on the ramp to the highway. The deputy activated his overhead lights and stopped the car.

The woman claimed she had called 411, not 911. She identified herself as Guadiana Hedrick. Defendant identified himself as Joseph Allen. Dispatch could not match either name but discovered the car was registered to Shyla Guadiana-Hedrick, who had secured a criminal protective order for domestic violence against "Jose Nunes."

Ament confronted the driver with her true name and she admitted it. Ament saw that defendant had "Nunes" tattooed on his neck and dispatch confirmed Jose Nunes had a similar tattoo as well as others which Ament could see. Ament informed defendant that he was under arrest for violating the protective order. Defendant denied that he was Jose Nunes and tried to flee. Ament and Deputy Cornelius gave chase. Cornelius used his Taser during the chase, but it failed to incapacitate defendant. When Ament caught up to Cornelius and defendant, the two were physically struggling near the bike lane of the highway. Defendant hit Cornelius with his elbows and knees. As the two struggled, they entered a lane of traffic; Ament pulled them back. Defendant pulled both deputies towards the highway, where traffic was passing at a high rate of speed, and threw punches at them. Ament fired his Taser at defendant but it had no effect. Defendant ran away from the two deputies.

Finally, a police dog controlled by a third deputy contacted defendant and he fell onto the ground with his arms underneath him (signaling the possible concealment of a weapon). Cornelius struck defendant three or four times on the back of his head and shoulder with his flashlight. The third deputy struck defendant on the back multiple times with his flashlight. The back of defendant's head was bleeding.

The charging document alleged that defendant "unlawfully attempt[ed] by means of threats and violence to deter and prevent Deputy Cornelius and/or Deputy Ament, who was then and there an executive officer, from performing a duty imposed upon such officer by law, and did knowingly resist by the use of ...


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