P. v. Myers

Filed 2/15/07  P. v. Myers CA4/3

NOT TO BEPUBLISHED IN OFFICIAL REPORTS

CaliforniaRules of Court, rule 977(a), prohibits courts and parties from citing orrelying on opinions not certified for publication or ordered published, exceptas specified by rule 977(b).  This opinion has not been certified forpublication or ordered published for purposes of rule 977.

IN THE COURT OFAPPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATEDISTRICT

DIVISION THREE

                        Appealfrom a judgment of the Superior Court ofOrange County, Richard W. Stanford, Jr., Judge.  Affirmed.  Petition for writ of habeas corpus.  Petition denied.

                        David L.Bernstein, under appointment by the Court of Appeal, for Defendant andAppellant.

                        BillLockyer, Attorney General, Robert R.Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant AttorneyGeneral, Lise S. Jacobson and Kyle Niki Shaffer, Deputy Attorneys General, forPlaintiff and Respondent.

A jury founddefendant Thomas Myers guilty of resistingan officer and committing a battery onan officer.  He raises three meritless contentions.

First,defendant complains his trial counsel provided ineffective assistance byfailing to object to evidence of his violent character.  We agree that evidenceof the officer's purportedly violent conduct before defendant resisted arrestdid not open the door for the prosecution to offer evidence of defendant'sviolent character.  But the admission of that evidence was harmless.  Counsel'sfailure to object did not prejudice defendant.

Second,defendant claims the court wrongly found citizen complaints against the officerwere unresponsive to his Pitchess[1]motion.  We find no abuse of discretion. 

Finally, inhis petition for writ of habeas corpus, defendant contends his counsel providedineffective assistance by advising him to testify about the details of a priorconviction.  He contends his testimonyallowed the court to find the prior conviction constituted a serious felonystrike.  But the court could have made that determination from the record ofconviction, without defendant's testimony.  Thus, this ineffective assistanceclaim fails as well.  Accordingly, we affirm the judgment and deny the petitionfor writ of habeas corpus.

FACTS

A CaliforniaHighway Patrol officer saw defendant walking along a freeway on-ramp.  Theofficer approached defendant and asked what he was doing.  Defendant stated hewas hitchhiking.  The officer began a pat-down search of defendant.  Defendantfollowed the officer's directions to turn around, separate his feet, andinterlace his fingers behind his head.

As the officerbegan to check defendant's waistband, defendant separated his hands and turnedtoward the officer.  The officer radioed for help, tried to control defendant,and pushed him toward the sound wall.  Defendant ran past the officer.  Theofficer tried to grab defendant, but he broke free.  The officer tackleddefendant and laid on top of him.  Defendant tried to get up and grabbed theofficer's holster, but the officer finally handcuffed defendant.  The officerbroke his finger during the fight.

Anotherofficer arrived at the scene and searched defendant.  A glass pipe with whiteresidue on it was found in defendant's pants pocket.  Defendant waived his Miranda[2]rights and stated he fought with the first officer to keep him from discoveringthe pipe, which he used to smoke methamphetamine.

The Peoplefiled an information charging defendant with one count each of resisting anofficer resulting in serious bodily injury (Pen. Code, § 148.10, subd.(a)),[3]committing a battery on an officer (§ 243, subd. (c)(2)), and possession ofdrug paraphernalia (Health & Saf. Code, § 11364).[4] The People also alleged defendant had suffered a prior serious felonyconviction.  (§§ 667, subds. (a)(1), (d) & (e)(1), 1170.12, subds. (b)& (c)(1).)

Before trial,defendant filed a Pitchess motion for discovery of material in theofficer's personnel file.  Defendant sought any complaints against the officerof excessive force, complaints of false statements by the officer, and similarmaterial.  Defendant supported his motion with a sealed declaration.  The courtagreed to review in camera any arguably responsive documents in the officer'spersonnel file.  The prosecution produced the California Highway Patrol'scustodian of records and all citizen complaints against the officer.  The courtdescribed the complaints on the record of the in camera proceeding.  Itconcluded none were responsive to defendant's request.  It ordered thesupporting declaration and the reporter's transcript to be sealed.

Also beforetrial, the prosecution filed a motion in limine to admit evidence ofdefendant's violent character.  The prosecution contended the evidence would beadmissible if the defendant first testified the officer acted violently duringthe arrest.  (See Evid. Code, § 1103, subds. (a) & (b).)  Defensecounsel objected the evidence of defendant's violent character would be undulyprejudicial.  (Evid. Code, § 352.)  The court noted the defense did not disputethe evidence's admissibility pursuant to Evidence Code section 1103.  It thenoverruled the defense's undue prejudice objection.

At trial,defendant took the stand.  He testified the officer was overly aggressivetowards him, slamming him against the freeway wall and kicking his feet apart. Defendant stated he â€