P.v. McBride
Filed 5/16/06 P.v. McBride CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. JAMES JOHN McBRIDE, Defendant and Appellant. | E036536 (Super.Ct.No. FBA006698) OPINION |
APPEAL from the Superior Court of San Bernardino County. Thomas D. Glasser, Judge. Affirmed.
Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Erika Hiramatsu and Heather F. Crawford, Deputy Attorneys General, for Plaintiff and Respondent.
According to two police officers, when they were arresting defendant for giving them a false name, he tried to punch one officer and appeared to be about to try again, leading the second officer to put him in a chokehold. Even then, defendant continued to kick and struggle; he tried to grab the second officer's gun and pepper spray. According to defendant, however, he did not try to punch anyone. He claimed that the officers attacked him for no reason (or, at best, out of a mistaken perception of his actions); after that, he was not resisting arrest, just trying frantically to breathe. Later, defendant was found to be in possession of a tiny amount of methamphetamine.
A jury acquitted defendant of removing or attempting to remove a peace officer's firearm (Pen. Code, § 148, subd. (d)) and the lesser offense of resisting a peace officer (Pen. Code, § 148, subd. (a)(1)). It also acquitted him on one count of resisting an executive officer ‑ ‑ as to the first officer ‑ ‑ (Pen. Code, § 69) and the lesser offense of battery (Pen. Code, § 242). However, it convicted him on a second count of resisting an executive officer ‑ ‑ as to the second officer ‑ ‑ and convicted him of possession of methamphetamine. (Health & Saf. Code, § 11377, subd. (a).)
Because defendant had five â€
