P. v. Elam

Filed 11/29/05 P. v. Elam CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, Plaintiff and Respondent, v. KAU ASHANITA ELAM, Defendant and Appellant.

B179633 (Los Angeles County Super. Ct. No. BA262175)

APPEAL from a judgment of the Superior Court of Los Angeles County, Barbara R. Johnson, Judge. Affirmed.

John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Chung L. Mar and Douglas L. Wilson, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Kau Ashanita Elam appeals from the judgment entered following a jury trial that resulted in his convictions for assault on a peace officer and resisting executive officers. Elam was sentenced to a term of six years in prison. He contends the trial court erred by: (1) denying his motion for release of juror identification information; (2) imposing the upper term sentence based on facts neither admitted by appellant nor found by a jury (Blakely v. Washington (2004) 542 U.S. 296); and (3) imposing sentence on numerous counts in violation of Penal Code section 654.[1] Elam also requests that we review the sealed transcript of the in camera Pitchess[2] hearing to determine whether the trial court erred by finding only one discoverable document. The People request that the abstract of judgment be corrected.

We find the abstract of judgment reflects the correct judgment, and we affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

In March 2004, security officers at a Sears store arrested appellant on the suspicion that he had stolen a DVD player. Appellant was followed out of the store, arrested, and brought to the security office where he was handcuffed to a bench. A security officer called the Los Angeles Police Department. Officers Gonzalez and Batres responded, and Officers Tellez and Kim arrived later as backup. Throughout the incident, appellant yelled and cursed at the officers. Appellant also said he was a “third striker,” and could not go back to jail. The officers placed a restraint around appellant’s ankles to prevent him from kicking an officer. Appellant continued to struggle while the officers attempted to unhook appellant from the bench, remove him from the store, and place him in a patrol car. During the struggle, Officer Gonzalez fell backward, hitting his right shoulder against a wall and chipping his front teeth.

Appellant represented himself in a jury trial. Prior to trial, the court granted appellant’s Pitchess motion in part. The court conducted an in camera hearing to review the personnel files of Officers Gonzalez and Batres, and disclosed one relevant document. Appellant was convicted of battery with injury on a peace officer in violation of section 243, subdivision (c)(2), and resisting an executive officer, in violation of section 69. The trial court found true three prior conviction allegations. The court sentenced appellant to six years for the battery charge, and imposed a four-year concurrent term for resisting arrest.

Appellant filed a timely notice of appeal.

DISCUSSION

I

Appellant requests that we review the sealed transcript of the in camera Pitchess hearing to determine whether the trial court abused its discretion in only partially granting the motion. (See People v. Hughes (2002) 27 Cal.4th 287, 330 [trial court’s ruling reviewed on appeal for abuse of discretion].) In the Pitchess motion, appellant requested information pertaining to the arresting officers’ use of excessive force. He also sought information bearing on truthfulness and racial prejudice to use as impeachment evidence at trial. After finding good cause to conduct an in camera hearing only as to excessive force, the court found and disclosed “one [discoverable] hit” in the personnel files of Officers Gonzalez and Batres.

In ruling on a Pitchess motion, the court may order disclosure of any documents “relevant to the subject matter involved in the pending litigation.” (Evid. Code, § 1045, subd. (a).) The relevancy requirement is read broadly to include facts admissible at trial and facts that could lead to the discovery of admissible evidence. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1087.) We have reviewed the documents produced at the hearing and find no abuse of discretion by the trial court.

II

Appellant challenges denial of his motion for access to juror identifying information. He based this request on allegations of juror misconduct at trial. He claims the prosecutor closely followed the jurors out of the courtroom before closing arguments, and that when the jury returned, Juror No. 2 “bent over in her seat while looking directly at [the prosecutor] winked her eye and shook her head in a yes manner. [The prosecutor] smiled and turned to face the judge.” Appellant argues the court violated his federal constitutional rights by denying the motion.

Code of Civil Procedure section 206, subdivision (g) permits a posttrial petition for the release of juror identifying information “pursuant to [Code of Civil Procedure] Section 237.” Subdivision (b) of section 237 provides: “The petition [for the release of juror identifying information] shall be supported by a declaration that includes facts sufficient to establish good cause for the release . . . .” The defendant must make a prima facie showing of good cause for the release of the information. (People v. Wilson (1996) 43 Cal.App.4th 839, 852.) Good cause for obtaining juror identifying information on the basis of jury misconduct must demonstrate misconduct and must show more than mere speculation as to how jurors arrived at their verdict. The evidence offered in support of the release of juror information must demonstrate jury misconduct on its face. (Ibid.)

Appellant failed to raise this issue during trial. He did not raise it until four months after his conviction. At the hearing on the motion, appellant explained that he did not raise the issue earlier because he did not want to “inflame the other jurors.” He also stated that the request was late because he did not have an investigator to question the jurors about any misconduct. The trial court denied the request, finding that it was based on “total speculation” and constituted an effort to delay sentencing. In light of appellant’s failure to bring his alleged observations to the court when they were made or at the first opportunity after that, and his delay of four months in asserting them at all, the trial judge was justified in refusing to credit his claim.

III

Appellant argues that his federal constitutional rights to proof beyond a reasonable doubt and jury trial were violated when the court imposed the upper term sentence based on facts that were neither found by a jury nor admitted by appellant. He relies on Blakely v. Washington, supra, 542 U.S. 296 for this proposition.

This issue was resolved against appellant in People v. Black (2005) 35 Cal.4th 1238. Under that decision, the upper term is the statutory maximum for the purpose of Sixth Amendment analysis, and a jury trial is not required on the aggravating factors which are used either for the upper term or for consecutive sentences.

In his reply brief, appellant acknowledges that this court must follow Black, but argues that it was wrongly decided. That decision is binding on this court. We conclude that the imposition of the upper term sentence did not violate appellant’s right to a jury trial.

IV

Appellant claims imposition of concurrent sentences for battery and resisting arrest violates the prohibition against multiple punishment based on the same underlying acts.

Section 654, subdivision (a) provides that “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.” A single course of criminal conduct may give rise to more than one act within the meaning of section 654 if “all of the offenses were incident to one objective” of the actor. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) The prohibition against multiple punishment applies to concurrent sentences. (People v. Deloza (1998) 18 Cal.4th 585, 592.)

Appellant was charged with battery causing injury to Officer Gonzalez and resisting an executive officer with regard to Officers Gonzalez, Kim, Batres, and Tellez. The convictions arose from a single course of conduct—appellant’s actions during arrest—but they involved multiple victims. When a single course of conduct involves more than one victim, the perpetrator may be punished separately for the crimes committed against each. (People v. Oates (2004) 32 Cal.4th 1048, 1063-1065.) The multiple victim exception is applicable when the prohibited acts are primarily crimes of violence against the person. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1163, citations omitted.) The crime of battery necessarily involves force or violence upon a person. (§ 242.) To prove a defendant resisted an executive officer, the People must show he or she willfully attempted to deter or prevent an executive officer from performing his or her duty by means of threat or violence, or resisted an executive officer in the performance of his or her duty by means of force or violence. (§ 69; In re Manuel G. (1997) 16 Cal.4th 805, 814-815.) Thus, a violation of section 69 requires that the defendant use force or violence, or make threats of unlawful violence intended to deter the officer.

Because Officer Gonzalez was a victim in both counts, appellant argues that the multiple victim exception to section 654 does not apply. He points to the jury verdict, which does not name any victims, to show that the jury may have found Officer Gonzalez to be the only victim of the violation of section 69. But, appellant was convicted of section 69 on the basis of overwhelming evidence, including a videotape of the incident, that he resisted all four officers at the scene—Gonzalez, Batres, Tellez, and Kim. The multiple victim exception applies where, as here, each crime involves at least one different victim. (People v. Garcia, supra, 107 Cal.App.4th at pp. 1162-1164; People v. Masters (1987) 195 Cal.App.3d 1124, 1128; People v. Miller (1977) 18 Cal.3d 873, 886.) Thus, imposing punishment on both counts did not violate section 654.

V

Respondent requests that this court review and correct an alleged error in the abstract of judgment. The court initially sentenced appellant to a total of six years in state prison as follows: the upper term of three years for the battery charge which was doubled pursuant to the second strike provision of the “Three Strikes” law, plus a concurrent term of 16 months for resisting arrest. The concurrent term was calculated as one-third the midterm doubled to 16 months. Later in the proceedings, the court amended the concurrent sentence for the resisting arrest to be “two years midterm doubled.” The abstract reflects the correct sentence: six years as to count 1 concurrent with four years as to count 7.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

HASTINGS, J.

CURRY, J.

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[1] All statutory references are to the Penal Code unless otherwise indicated.

[2] See Pitchess v. Superior Court (1974) 11 Cal.3d 531.