P. v. Iniguez
Filed 7/21/06 P. v. Iniguez CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 ONE
| THE PEOPLE, Plaintiff and Respondent, v. JOSE DE JESUS INIGUEZ, Defendant and Appellant. | B183543 (Los Angeles County Super. Ct. No. NA061212) |
APPEAL from a judgment of the Superior Court of Los Angeles County, Charles D. Sheldon, Judge. Reversed with directions.
Marilee Marshall, under appointment by the Court of Appeal, and Marilee Marshall & Associates for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Richard T. Breen, Deputy Attorney General, for Plaintiff and Respondent.
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Jose DeJesus Iniguez appeals from the judgment entered following a jury trial that resulted in his conviction of two counts of assault on a peace officer while personally using a deadly weapon (Pen. Code, §§ 245, subd. (c), 12022, subd. (b)(1); counts 3, 4)[1] and his no contest plea to another count of assault on a peace officer (§ 245, subd. (c); count 2). He was sentenced to prison for six years four months, consisting of the four-year middle term plus one year for the use enhancement on count 3 and one year four months, or one-third the four-year middle term, on count 4, concurrently with the three-year middle term on count 2.
Defendant contends he was deprived of his right to a jury trial (U.S. Const., 6th Amend.) by the trial court's refusal to instruct on self-defense and excessive force; the court's directive that the jury was not to consider the issue of excessive force; and its failure sua sponte to instruct on simple assault, brandishing a weapon, and assault with a deadly weapon as lesser included offenses of assault on a peace officer. He contends that he was deprived of his rights to a fair trial, to confront witnesses, and to present a defense (U.S. Const. 5th, 6th, 14th Amends.) by the trial court's erroneous exclusion of testimony regarding an officer's alleged prior violent conduct. He also contends the trial court improperly limited his right to discovery regarding complaints against officers under Pitchess v. Superior Court (1974) 11 Cal.3d 531. Alternatively, he contends reversal also is mandated based on these cumulative errors. He further contends the recitals in the clerk's transcript regarding the disposition of counts 1, 5, and 6 must be corrected to reflect their true dispositions as set forth in the reporter's transcript.
Respondent concedes the one-year use enhancement on count 3 should not have been imposed, and thus it should be stricken.
Based on our review of the record and applicable law, we conditionally reverse the judgment and remand the matter for a new Pitchess hearing. If the trial court afterwards determines that either no additional discovery is warranted or, if it is warranted, there is no prejudice to defendant, then defendant's sentence is modified by striking the one-year use enhancement and, as modified, the judgment is affirmed.
BACKGROUND
We view the evidence in the light most favorable to the People and presume the existence of every fact the trier could reasonably deduce from this evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) This evidence established:
On May 1, 2004, about 9:00 p.m., Long Beach police Officers Peter Lackovic and Randy Sany received a radio call about a stolen GMC Safari van. When Lackovic called Corina Ramirez, who made the report that her boyfriend defendant had stolen the van, she related that defendant was seen recently driving the van near 49th and Elm in Long Beach. The officers, who were in a marked patrol car, spotted a parked van matching the description given and bearing the license plate of the stolen van. Each officer was wearing a â€
