P. v. Lockett

Filed 4/18/07 P. v. Lockett CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Lee P. Felice, Judge.

Rex Williams, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Charles A. French, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

Danny Key Lockett appeals from a judgment entered after the trial court revoked his probation. His counsel on appeal has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks this court to conduct an independent review of the record as is required by People v. Wende (1979) 25 Cal.3d 436. (See also People v. Kelly (2006) 40 Cal.4th 106.) Counsel informed Lockett that he had the right to file a supplemental brief on his own behalf. Lockett has not responded to this courts invitation to submit supplemental briefing.

PROCEDURAL HISTORY

On July 2, 2004, Lockett pleaded no contest to one count of corporal injury on a spouse or cohabitant (Pen. Code,  273.5, subd. (a))^[1]and one count of resisting an officer ( 148, subd. (a)(1)) on the condition he be granted probation and serve one year in county jail. On August 2, 2004, the court suspended imposition of sentence and placed Lockett on probation with various conditions including that he serve one year locally.

On October 27, 2005, the People filed a petition to revoke probation for failure to obey all laws. The court summarily revoked probation pending a contested hearing.

On August 1, 2006, following a contested revocation hearing, the court found Lockett in violation of his probation and revoked it. The court sentenced him to the middle term of three years.

On August 15, 2006, Lockett filed a timely notice of appeal.

FACTS ELICITED AT THE PROBATION VIOLATION HEARING

Prosecution

On May 11, 2006, Ronette Mackey, who used to live with Lockett, her ex-boyfriend, was with him that day and called law enforcement to report domestic violence. Bakersfield Police Officer Ryan McWilliams, his partner, Officer Holcomb, and Officer Christopher Ward responded to the call and Officer Ward made contact with Mackey. Officer McWilliams detained Lockett nearby. Lockett, a very large man, had a bent crutch and his foot appeared to be in a cast or bandage. Officers McWilliams and Holcomb handcuffed Lockett and placed him in the back of a patrol vehicle; he was told he was being detained pending an investigation of domestic violence. He began yelling and using profanity, and kicked the patrol cars rear drivers side door.

Officer Ward spoke with Mackey, who said she and Lockett, with whom she had been living but had broken up several days earlier, had been at a hamburger stand when they got into an argument about money. Using both arms, Lockett swung a crutch at her over his head and hit her right arm. She ran and called the police while Lockett followed her. Officer Ward observed that Mackeys right arm was red and swollen.

Lockett was taken to the jail, where he continued to yell profanities at the officers, and then was taken to Kern Medical Center to be cleared for booking. Because he would not voluntarily get out of the patrol vehicle, the officers removed him from the vehicle and, at his own request, handcuffed him to a wheelchair retrieved from the hospital. When he attempted to stand up, Officers McWilliams and Holcomb used their body weight to push him back into the wheelchair. He did not try to fight, kick or grab Officer McWilliams when placed in the chair. After he said he would spit in Officer McWilliamss face, McWilliams retrieved a spit mask from the patrol vehicle, which the officers placed over Locketts head. While the officers attempted to secure the mask, Lockett moved his head towards McWilliamss arm with his mouth open, leading McWilliams to believe Lockett was trying to bite him. McWilliams pushed Locketts head back and he and Officer Holcomb then tilted the chair back so Lockett was lying on his back with his legs in the air. Lockett kicked his legs in Officer Wards direction; neither officer was struck. Officer Ward moved out of the way and put a leg hobble on Lockett, securing his legs to the wheelchair.

After May 11, 2006, Mackeys daughter saw her mother holding her right arm, unable to move it. Mackey told her she and Lockett had had an argument and Lockett hit her with a crutch. A few days after May 11, Mackeys daughter saw her with a bandage. According to Mackeys daughter, Mackey did not want Lockett to go to jail and did not want to come to court to testify.

Defense

Lockett testified he did not hit Mackey on May 11, 2006. He was at a business talking with the owner when he saw Mackey outside. Lockett said, Here comes trouble. He went outside and asked Mackey why she was bothering him, saying she was stalking him. He was in the area to see his daughters graduation and Mackey threatened to prevent him from attending if he did not rent a hotel room for her. Lockett said he would not give her a dime, because she had been threatening to report him to his probation officer for contacting her in violation of his probation in order to force him to pay for rent. He told her he would not do it anymore; his leg was broken and he was unable to pay rent for her. From there, he went to his place of employment. Mackey showed up there and he asked her to leave. He then went to a church near the hamburger stand, where Mackey again approached him. He then walked away and the police arrived.

Lockett was detained and the officers called him a big nigger. He was hobbling and had only one crutch as Mackey had taken the other. He was placed in the back of the patrol car with all of the windows rolled up, where he was left for 45 minutes. It was hot and he asked for water, pushing his shoulder into the door. He was not given any water. He did not try to kick the door open.

Finally, Officer Ward arrived and told him he was under arrest. Lockett denied hitting Mackey with the crutch. He was taken downtown and then to Kern Medical Center. The officers, who had taken his crutch, put him in a wheelchair and took him into the hospital. His hands were cuffed very tightly, cutting into his wrists, so he asked the officers to use a second set of cuffs to allow him more range of motion. The officers continued to refuse him water, and he called them a racist-assed redneck.

Suddenly, the officers attacked him and pushed him over, causing him to hit his head against the floor and sustain a slight concussion. Blood was coming from the back of his head. When Officer McWilliams put his knee on Locketts head, Lockett said, Get your fuckin knee off my head. Officer McWilliams leaned over to him and said, Shut your fuckin mouth. Lockett said, Stop spitting in my motherfucking face. He did not threaten to spit on any of the officers and did not try to bite Officer McWilliams. He did not kick any of the officers. He did not threaten them, was not combative or belligerent, and was cooperative at all times, although he was agitated. He did say I hate crackers in response to Officer McWilliams calling him a nigger and because the officers did not conduct the investigation properly. He also asked Officer McWilliams why he was putting a mask on him. Eventually, five minutes before he was released, he was offered water but refused it after tasting it.

At the conclusion of the contested hearing the trial court found Lockett in violation of probation based on the evidence presented, both for his assault on Mackey and for resisting, with force or violence, officers who were in the lawful performance of their duties. The court declined to reinstate probation and sentenced Lockett to the originally recommended mid term of three years with total custody credits of 541 days.

We have reviewed the record and conclude that no reasonably arguable issues exist.

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Cornell, J. and Gomes, J.

^[1]All statutory references are to the Penal Code unless otherwise noted.