P. v. Moody

Filed 9/6/06 P. v. Moody CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Stanislaus County. John G. Whiteside, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Stephen G. Herndon and Sarah J. Farhat, Deputy Attorneys General, for Plaintiff and Respondent.

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STATEMENT OF THE CASE

On April 25, 2005, the Stanislaus County District Attorney filed a first amended information in superior court charging appellant Ronnie Lee Moody as follows: count I--assault on a peace officer likely to produce great bodily injury (Pen. Code,^[1] § 245, subd. (c)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)); count II--assault on a peace officer likely to produce great bodily injury (§ 245, subd. (c)); count III--escape or attempted escape after arrest with force or violence (§ 836.6, subd. (c)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)); and count IV--resisting an executive officer (§ 69). As to all counts, the district attorney specially alleged appellant had sustained a prior prison term (§ 667.5, subd. (b)).

On the same date, appellant was arraigned, pleaded not guilty to the substantive counts, and denied the special allegations.

On May 31, 2005, jury trial commenced.

On June 8, 2005, the court sua sponte found the great bodily injury allegation related to count I to be not true.

On June 9, 2005, the jury returned verdicts finding appellant guilty as charged and finding the remaining special allegations to be true.

On July 7, 2005, the court denied appellant probation and sentenced him to a total term of six years in state prison. The court imposed the upper term of five years on count I, a consecutive term of one year for the prior prison term, a four-year concurrent term on count II, and stayed terms on the remaining counts. The court imposed a $1,200 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), and awarded 746 days of custody credits.

On August 1, 2005, appellant filed a timely notice of appeal.

STATEMENT OF FACTS

On August 17, 2003, appellant was released on parole from state prison after being convicted of felony stalking. On February 24, 2004, his parole was suspended and a warrant was issued for his arrest. Parole Agent Oscar Suazo later received information on appellant's whereabouts. At 9:00 a.m. on February 26, 2004, Suazo and several uniformed Modesto police officers went to the Modesto Inn (Inn) on Needham Avenue to apprehend appellant. As they approached the Inn, the manager pointed out appellant, who was walking south on 12th Street away from the Inn. Several of the officers walked toward appellant, identified themselves as officers, and told appellant to stop. Appellant immediately ran south on 12th Street with the officers in pursuit. Officer Glenn Graves and Sergeant Alan Carter got into their vehicles, drove ahead of appellant, and unsuccessfully attempted to head him off.

Officer Graves was assigned to a canine unit and he released Eros, his police dog, to detain the appellant. Appellant turned west through a side yard and Eros and Graves chased him on foot. Officer Kelly Scott and Sergeant Carter also took their vehicles, drove around, and attempted to cut appellant's route off. Carter got out of his vehicle, took a beanbag shotgun, and ran to intercept appellant.

Appellant jumped onto a wooden structure next to a fence and stopped. Officer Scott saw appellant on a fence behind the structure. Scott got out of his car and shouted at appellant to stop and come down off of the fence. Sergeant Carter was on the same side of the fence as Scott. He also yelled at appellant to get off the fence and racked a round in the beanbag gun for effect. Officer Graves was on the other side of the fence with Eros and also told appellant to stop. Appellant did not comply with or respond to the officers' orders. He stood on the fence, looked from side to side between the groups of officers, and apparently sought an escape route. When appellant looked toward Officer Graves, Officer Scott reached up and pulled appellant down from the fence and onto the ground.

Officer Scott then told appellant to â€