P. v. Glaze

Filed 8/17/06 P. v. Glaze CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from a judgment of the Superior Court of Los Angeles County. Judith L. Champagne, Judge. Affirmed.

Jonathan P. Milberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

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INTRODUCTION

Appellant Rodney Glaze challenges his gun possession, resisting an executive officer, felony assault, and carrying a loaded gun convictions on the grounds of insufficiency of evidence, instructional error, and evidentiary error. We conclude the following: Ample evidence supports appellant's resisting an executive officer and felony assault convictions. The trial court did not err by admitting appellant's prior convictions as impeachment. Appellant's attorney did not render ineffective assistance by failing to object to the admission of gang evidence or to attempt to bifurcate trial of the gang enhancement allegations. Appellant has no viable claim regarding evidence of his prior incarceration and parole status because he, alone, was responsible for introducing the evidence.

BACKGROUND AND PROCEDURAL HISTORY

Plain-clothes Los Angeles Police Officers Robert Beckers and Michael Fletcher spotted appellant with a group of individuals in the parking lot of a bar where a narcotics investigation was underway. As another police vehicle pulled into the area, appellant immediately left the group and walked rapidly towards the entrance of the bar. The officers identified themselves and asked appellant to stop. He continued to walk rapidly and look over his shoulder in the direction of the group. Appellant attempted to reach into his right rear pocket the entire time he was walking. Officer Beckers noticed a bulge in the pocket.

Appellant walked inside the bar. The officers followed him. One of them attempted to grab appellant and tore his shirt. Appellant fell, kicked a chair at the officers, and kicked one of them in the chest. During the altercation, appellant kept trying to reach his rear pocket. As he was rolling on the floor, a loaded semi-automatic gun fell out of his pocket. The officers eventually subdued and arrested him.

A jury convicted appellant of possessing a firearm with a prior violent felony conviction (Pen. Code, § 12021.1), possessing a firearm with a prior felony conviction (Pen. Code, § 12021, subd. (a)(1)), two counts of resisting an executive officer (Pen. Code, § 69), assault with a deadly weapon or by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)), two counts of assault on a peace officer with a deadly weapon or by means likely to produce great bodily injury (Pen. Code, § 245, subd. (c)), carrying a loaded gun while an active participant in a street gang (Pen. Code, § 12031, subd. (a)(1)), and carrying an unregistered loaded gun (Pen. Code, § 12031, subd. (a)(1)). The jury also found a principal was armed with a gun in the commission of the resisting and assault counts. Appellant was sentenced to a third strike term of 25 years to life, plus 16 years, for a total term of 41 years to life in prison.

DISCUSSION

1. Sufficient evidence supports appellant's resisting an executive officer and assault on peace officer convictions.

Penal Code section 69 makes it a crime to resist an executive officer in the performance of the officer's duty. A conviction of assault with a deadly weapon or by means likely to produce great bodily injury upon a peace officer requires that the peace officer is engaged in the performance of his or her duties. (Pen. Code, § 245, subd. (c).)

Appellant contends that the evidence was insufficient to support his convictions of resisting an executive officer (counts 3 and 4) and assault with a deadly weapon or by means likely to produce great bodily injury upon a peace officer (count 7) because Officers Beckers and Fletcher had no reasonable justification to detain or arrest him, and were therefore not engaged in the lawful performance of their duties. However, the parties stipulated that â€