P. v. Delgado

Filed 6/23/06 P. v. Delgado CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

A jury convicted defendant Tomas Ochoa Delgado of resisting arrest, assault on a peace officer by means likely to produce great bodily injury, battery, and possession of a controlled substance. The trial court then found true allegations of four prior convictions for purposes of the Three Strikes law, three prior prison terms for purposes of one-year sentence enhancements, and four prior convictions for purposes of probation ineligibility. It sentenced defendant to 25 years to life for the resisting-arrest conviction, imposed stayed or concurrent terms on the remaining three convictions, and struck the prison-prior enhancements. On appeal, defendant contends that (1) the trial court erred by instructing the jury in the language of CALJIC No. 2.52 (flight indicating consciousness of guilt), and (2) his sentence constitutes cruel and unusual punishment. In a separate petition for writ of habeas corpus, which we ordered considered with the appeal, defendant raises a claim of ineffective assistance of counsel. We disagree with defendant and affirm the judgment. We also dispose of the habeas corpus petition by separate order filed this day.

background

San Jose Police Officer James Hussey effected a nighttime traffic stop because he believed that the automobile driver was intoxicated. Defendant, a parolee at large with an outstanding arrest warrant, exited from the driver's position and ran away at full speed into an apartment complex alleyway. Officer Hussey left his vehicle and pursued defendant. Defendant ignored Officer Hussey's admonitions to stop. He ran out of Officer Hussey's sight but fell down. Officer Hussey illuminated his flashlight and saw him lying on the ground. Defendant got up and continued running. At some point, he circled around a tree and ran back toward Officer Hussey. The two collided and fell on the ground. Officer Hussey got on top of defendant, but defendant grabbed Officer Hussey's neck and began choking him. Officer Hussey hit defendant in the head several times with his flashlight. Defendant released his grip and tried to escape by biting Officer Hussey's hand. Officer Hussey hit defendant several more times with the flashlight. Another officer arrived and assisted in placing handcuffs on defendant. This officer also searched defendant and found methamphetamine. An ambulance transported defendant to the hospital for treatment where defendant's blood tested positively for methamphetamine and amphetamine. Officer Hussey also received treatment at the hospital. Officer Bruce Alexander relieved Officer Hussey and escorted defendant to his vehicle. As he freed a hand to unlock the car, defendant ran away through the parking lot. At some point, defendant stopped and submitted to custody.

At sentencing, defendant moved to strike his prior convictions and reduce the controlled-substance conviction to a misdemeanor. In denying the former motion after granting the latter motion, the trial court articulated the following: â€