P. v. Lindini




Filed 3/9/11 P. v. Lindini 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 PEOPLE, Plaintiff and Respondent, v. DANIEL THOMAS LINDINI, Defendant and Appellant.

F059408 (Super. Ct. No. BF112789A) OPINION

APPEAL from a judgment of the Superior Court of Kern County. Louis P. Etcheverry, Judge.
Stephen M. Hinkle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Lloyd G. Carter, and Leanne Le Mon, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Kern County detention officers beat James Moore to death after Moore became uncooperative while being booked at the Kern County Central Receiving Facility, a county jail. Defendant Daniel Thomas Lindini was one of the officers who used force against Moore. A jury found him guilty of involuntary manslaughter and assault under color of authority. The court imposed a two-year prison term for involuntary manslaughter and stayed the sentence for the assault.
In this appeal, Lindini argues that (1) the evidence presented at trial was insufficient to support the convictions; (2) he was denied due process of law on both counts because his assaultive acts as shown at the preliminary hearing were different from the acts shown at trial; (3) the court erred when it failed to tell the jury it must unanimously agree about which of several independently sufficient acts was the basis of its verdict on assault under color of authority; and (4) he is entitled to retroactive recalculation of presentence credits for good conduct and work time based on Penal Code section 4019 as amended effective January 25, 2010. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
Information
On April 28, 2006, the district attorney filed an information against Lindini and two codefendants, detention officers Ralph Contreras and Roxanne Fowler. All three defendants were charged with second degree murder (Pen. Code,^[1] § 187, subd. (a), count one) and assault under color of authority (§ 149, count two). Lindini and Contreras were tried together.
Trial evidence
a. Arrest and initial processing
The evidence at trial showed that on August 15, 2005, at about 6:00 in the evening, Kern County Sheriff's Deputy Ryan Williams arrested Moore at a house in Bakersfield on suspicion of criminally threatening a woman. Williams handcuffed Moore and drove him to the central receiving facility. Moore was 30 years old, was six feet two and a half inches tall, weighed 233 pounds, and was wearing only boxer shorts. He used profane language, refused to identify himself, and followed Williams's orders slowly, but he did not put up any physical resistance.
At the central receiving facility, Williams removed the handcuffs and carried out several sobriety tests because he thought Moore's behavior indicated Moore might be under the influence of drugs or alcohol. Williams also took a sample of Moore's urine for testing. The sobriety tests had no abnormal results. While Moore was going through these procedures, Williams observed that Moore's demeanor was rapidly cycling. He would change quickly and repeatedly from cooperative and talkative to uncooperative and rigid. Williams searched Moore, who was still dressed only in boxer shorts. When Williams was finished, he turned Moore over to a detention officer for booking, telling the officer that Moore was â€