P. v. Villanueva

Filed 5/26/06  P. v. Villanueva 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

            APPEAL from the Superior Court of Riverside County.  Robert G. Spitzer, Judge.  Affirmed.

            Gregory S. Cilli, 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, Quisteen Shum and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.

            A jury found defendant guilty of resisting a police officer with force (Pen. Code, § 69) (count 1); transportation of methamphetamine (Health & Saf. Code, § 11379, subd. (a)) (count 2); providing false identification to a police officer (Pen. Code, § 148.9, subd. (a)) (count 3); and possession of drug paraphernalia (Health & Saf. Code, § 11364) (count 4).  Defendant admitted that he had served two prior prison terms (Pen. Code, § 667.5, subd. (b)) and had sustained one prior strike conviction (Pen. Code, §§ 667, subds. (c), (e)(1), 1170.12, subd. (c)(1)).  As a result, defendant was sentenced to a total term of nine years four months in state prison.  Defendant's sole contention on appeal is that the trial court violated his due process rights by denying his Pitchess^[1] motion for an in camera court review of the arresting officer's personnel records.  We reject this contention and affirm the judgment.

I

FACTUAL AND PROCEDURAL BACKGROUND

            On February 26, 2004, about 2:00 a.m., Riverside Police Officers Aaron Miller and Chad Milby were on routine patrol in the City of Riverside on 7th Street in their police vehicle when they noticed an older model red car with a cracked windshield.  The officers followed the car, intending to initiate a traffic stop once the car reached an intersection.  Before reaching the intersection, the car turned into a parking lot of an apartment complex and stopped.  As soon as the car came to a stop, defendant, who had been sitting in the right front passenger seat of the car, opened the car door and ran, dropping a glass methamphetamine pipe to the ground and breaking it.  Officer Miller pursued defendant on foot while Officer Milby remained at the site of the traffic stop.

            Officer Miller identified himself and ordered defendant to stop.  Defendant ran through the apartment complex and to a concrete wall, which he climbed over.  Officer Miller followed defendant and jumped over the concrete wall.  Defendant continued to run through the apartment complex parking lot around cars and through a carport area as Officer Miller followed.  Officer Miller was unable to contact police dispatch to inform them that he was in a foot pursuit of defendant because his radio had fallen out of his shoulder holster during the pursuit.

            Defendant ran down a sidewalk along an apartment building, which was blocked by a fence.  Defendant tried to climb over the fence at the dead end but was unsuccessful.  Officer Miller shined his flashlight on defendant and ordered him to come down off the fence.  Defendant climbed down, turned and faced Officer Miller, and assumed a fighting stance.  There was about a five-foot distance between them.  Defendant raised his fists, shuffled toward Officer Miller and swung, striking the officer on the head.  At that point, Officer Miller did not know if defendant was armed.  He had lost contact with dispatch, and he was unsure of his location.  Officer Miller was concerned that defendant would gain control of the situation by taking his gun, baton, pepper spray, or handcuffs from his utility belt and use them against him.  Officer Miller swung back and hit defendant in the face area and head with the flashlight he was holding.  The blow did not appear to have an effect of defendant.  Defendant swung at the officer again and missed.  Officer Miller then threw several punches at defendant, hitting him in the face or body area.  Again, the punches had no effect on defendant.  Defendant charged at Officer Miller, grabbing him around the waist and tackling him to the ground. 

            Defendant was on top of Officer Miller.  Officer Miller attempted to get off the ground; however, defendant pushed his head into the officer's chest and grabbed his wrist.  When defendant got his hands on Officer Miller's gun and pepper spray, Officer Miller pushed defendant down by his shoulders and struck him in the back of his head with the flashlight.  Officer Miller freed himself and stood up.  Defendant advanced toward the officer a third time.  When defendant swung at Officer Miller, Officer Miller applied a defensive arm-bar maneuver by grabbing defendant's arm and throwing him to the ground.  Once on the ground, the officer pinned him there by positioning himself on top of defendant.  Defendant resisted and tried to break free of the officer's hold. 

            Meanwhile, Officer Milby arrived and observed defendant and Officer Miller fighting at the dead end of the sidewalk.  Officer Milby ran toward them and saw Officer Miller applying the defensive move to defendant.  The officers then handcuffed defendant's wrists behind his back.

            While leading defendant back to the police car, defendant apologized to Officer Miller for fighting with him, claiming he fought because he was scared and under the influence of methamphetamine.  When defendant was seated in the patrol car, he told the officers that he had â€