P. v. Eaton

Filed 4/19/07 P. v. Eaton CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County,

George G. Lomeli, Judge. Affirmed.

Ronnie Duberstein, under appointment by the Court of Appeal, for Defendant and Appellant.

No appearance for Plaintiff and Respondent.

_________________________

Issac Donte Eaton (Eaton) appeals the judgment entered following his plea of no contest to one count of assault on a peace officer with a semiautomatic firearm (Pen. Code, 245, subd. (d)(2))^[1]and his admission he personally used a semiautomatic firearm during the commission of the offense ( 12022.5, subds. (a) & (d)). The trial court sentenced Eaton to a term of ten years in prison. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.^[2]

At approximately 11:15 a.m. on March 16, 2005, Los Angeles Police Officer Richard Mendoza (Mendoza) and his partner, Officer Thomas Redshaw (Redshaw) were in uniform and on patrol in a marked police car on 69^th Street in Los Angeles. A third officer, or ride-along passenger, was seated in the back seat.

Mendoza, who was sitting in the front passenger seat of the vehicle, observed two men standing at the southeast corner of the intersection at 69^th and Bonsallo Streets. As the officers approached the intersection, Mendoza made eye contact with one of the two men. The man, who was later identified as Eaton, appeared startled and, as he placed his right hand in his right waistband area, turned so that he was facing away from the officer. Mendoza told Redshaw what he had seen and asked him to slow down so the officers could make contact with the two [men] . . . .

Redshaw slowed down and Mendoza got out of the car. Mendoza, who was approximately 35 feet from Eaton and his companion, began to walk toward them. As he did so, Eaton looked back in Mendozas direction then, while still holding his right hand at his right waistband, immediately started to run in a full sprint east on 69^th Street.

Believing Eaton might be holding a gun, Mendoza ran after him. As Mendoza followed Eaton, he saw Eaton use his right hand to retrieve [a dark object] from his waistband area. The object appeared to be a handgun and Mendoza yelled out to his partner that Eaton was in possession of a gun.

Mendoza continued to run after Eaton while Redshaw drove the patrol car alongside of Mendoza. When Eaton reached the intersection at 69^th Street and Estrella Avenue, he lost his balance, tripped and fell. Mendoza was able to get within 20 feet of Eaton and he yelled to Eaton to stop. Eaton, however, was able to get up before Mendoza could reach him and, after regaining his balance, started to run toward a nearby elementary school. Eaton negotiated a southbound turn and Mendoza lost sight of him for a short time. However, Redshaw pulled the patrol car ahead of Mendoza and continued to follow Eaton.

When Mendoza rounded the corner, he saw Eaton with his right arm outstretched, pointing a handgun at the patrol car. Mendoza then heard three gun shots and realized Redshaw had pulled out his gun and was firing at Eaton from inside the car. Eaton, who had been shot in his rear and . . . the back of his right arm, slowed to a walk and, with an underhand throw, tossed the gun away, over his shoulder and a nearby wall. The gun landed on the school yard. When Eaton then stumbled in the street, Mendoza was able to approach him, assist[] him to the ground and place him in handcuffs.

2. Procedural History.

On April 20, 2005, Eaton was charged by information with three counts of assault on a peace officer with a semiautomatic firearm ( 245, subd. (d)(2)), during the commission of which he personally used a firearm ( 12022.53, subd. (b), three counts of exhibiting a firearm in the immediate presence of a peace officer in a rude, angry or threatening manner ( 417, subd. (c)), carrying a concealed firearm ( 12025, subd. (a)(2)) and possessing a firearm in a place he knew, or should have known, was a school zone ( 626.9, subd. (b)).

On June 7, 2005, counsel for Eaton made a motion for discovery of police personnel records pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531, 535-538 (Pitchess) and People v. Memro (1985) 38 Cal.3d 658, 676-680. Counsel requested the names, addresses and telephone numbers of all persons who had filed complaints with regard to Officers Redshaw and Mendoza, in addition to the officer who was present as a ride-along passenger and those officers who had conducted investigations and interviews after the March 16, 2005 incident. Specifically, counsel requested any and all complaints and reports relating to aggressive behavior or the use of excessive force, as well as acts of dishonesty or moral turpitude, on the part of any of the listed officers.

A hearing was held on the Pitchess motion on June 30, 2005. After the trial court held an in camera proceeding with the Los Angeles Police Departments custodian of records and heard argument on the matter, it granted the motion in part. The trial court directed the People to comply with the Pitchess ruling by 4:00  p.m. on July 5, 2005.

On March 22, 2006, counsel for Eaton filed a motion to suppress evidence pursuant to section 1538.5 on the grounds that the arrest and search of the defendant was without probable cause or reasonable suspicion. Counsel asked that [a]ll of Mr. Eatons statements made in the presence of LAPD officers, while detained, and [a] gun, bullets, and magazine recovered at the scene be suppressed. A hearing was held on the matter on May 5, 2006. After hearing the testimony of Officer Mendoza and argument by the parties, the trial court denied the motion. The court determined Officer Mendoza had the right to approach . . . [Eaton] and, once the officer saw that Eaton possessed a firearm, was entitled to detain him.

On May 5, 2006, defense counsel filed a supplemental Pitchess motion regarding complaints made against a particular officer. Following an in camera hearing, during which the People indicated they had no objection to providing the requested discovery, the trial court granted the motion.

In a motion filed on August 29, 2006, defense counsel made yet another supplemental Pitchess motion, indicating the tape recordings received did not pertain to the officers in question and appeared to be unrelated to Eatons case. However, at proceedings held on September 12, 2006, the trial court was advised that all Pitchess discovery ha[d] been turned over.

At proceedings held on September 15, 2006, defense counsel indicated Eaton wished to enter a plea of no contest pursuant to a negotiated agreement. After being advised of his right to a jury or court trial, the right to confront and cross-examine the witnesses against him, the right to subpoena witnesses and present a defense, and the privilege against self-incrimination, Eaton pleaded no contest to one count of assault on a peace officer with a semiautomatic firearm ( 245, subd. (d)(2)) and admitted having personally used a semiautomatic firearm during the commission of the offense ( 12022.5, subds. (a) & (d)).^[3] In exchange, the trial court sentenced Eaton to the middle term of seven years for his conviction of assault on a peace officer with a semiautomatic firearm and an additional three years for his personal use of a firearm during the offense, for a total term of ten years in prison. The trial court then struck all the remaining allegations in furtherance of justice pursuant to section 1385. Eaton was given credit for a total of 633 days in custody consisting of 550 days actually served and fifteen percent, or 83 days, of good time/work time.

On September 15, 2006, Eaton filed a timely notice of appeal.

On January 2, 2007, this court appointed counsel to represent Eton on appeal.

CONTENTIONS

After examination of the record, appointed counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed March 2, 2007, the clerk of this court advised Eaton to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. No response has been received to date.

APPELLATE REVIEW

We have examined the entire record and are satisfied Eatons counsel has complied fully with counsels responsibilities. (Smith v. Robbins (2000) 528 U.S. 259 [145 L.Ed.2d 756]; People v. Wende (1979) 25 Cal.3d 436, 443.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P.J.

CROSKEY, J.

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^[1] All further statutory references are to the Penal code unless otherwise indicated.

^[2] The facts are taken from the transcripts of the motion to suppress evidence and the preliminary hearing.

^[3] A reading of the transcript of the sentencing proceedings indicates the information was at some point amended to allege the personal use of a firearm allegation pursuant to section 12022.5, subdivisions (a) and (d).