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G054330 (Cal. Ct. App. Mar. 16, 2018)



THE PEOPLE, Plaintiff and Respondent, v. JAVIER JUAN MURILLO, Defendant and Appellant.

Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF1816) OPINION Appeal from a judgment of the Superior Court of Orange County, Gary S. Paer, Judge. Affirmed. Tyrone A. Sandoval, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Scott C. Taylor and Ryan H. Peeck, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found defendant guilty of using force to resist an executive officer in the performance of his duty (Pen. Code, § 69; count 1) and two misdemeanors, delaying a peace officer in the performance of his duty (§ 148, subd. (a)(1); count 2) and possession of paraphernalia for injecting a controlled substance (Health & Saf. Code, § 11364, subd. (a); count 3). Defendant admitted having served two prior prison terms. (§ 667.5, subd. (b).) One of the prior strike conviction allegations (§ 667, subds. (d), (e)(2)) was dismissed on the prosecutor's motion and the other was stricken by the court pursuant to section 1385. The court also struck the state prison prior enhancements for sentencing purposes.

All statutory references are to the Penal Code unless otherwise stated.

The court sentenced defendant to two years in state prison on count 1. On count 2, the court sentenced defendant to six months in county jail, but stayed the sentence pursuant to section 654. Lastly, the court ordered defendant to serve 30 days on count 3.

Defendant contends his conviction on count 2, the violation of section 148, subdivision (a)(1), must be vacated because it is a lesser included offense of count one, the violation of section 69. He also requests that this court review the in camera proceedings conducted pursuant to his Pitchess motion. We affirm.

Pitchess v. Superior Court (1974) 11 Cal.3d 531.


Defendant was on parole on August 15, 2016, and had an outstanding warrant for his arrest. Four Orange County Sheriff deputies went to his residence at approximately 11:05 a.m. to conduct a parole search and, presumably, to serve the arrest warrant. The deputies each wore a bullet proof vest with a badge stitched onto the front of the vest.

The deputies contacted defendant's father outside the garage of the residence. He said defendant was inside the house, sleeping. Deputy Phillip Avalos remained in the garage with defendant's father while the other deputies entered the residence. One deputy knocked on defendant's bedroom door, identified himself as a deputy sheriff and ordered defendant to open the door. The deputy ordered defendant to open the door "several times." At one point, defendant asked, "Who is it?" The response was "Sheriff's Department."

Avalos could hear the demands to open the door. While speaking to defendant's father outside the residence, Avalos looked to his left and saw defendant jump a side wall and run through a neighbor's yard. Sergeant Critz, one of the deputies inside the residence, heard Avalos yell, "Sheriff's Department, stop." Critz ran outside and heard Avalos again yell, "Sheriff's Department, stop." Critz joined in the chase.

Defendant continued to run until he was tackled by Avalos. When they went to the ground, Avalos was on top of defendant. A struggle ensued. Defendant attempted to push back into Avalos as Avalos tried to grab defendant's hands. Defendant pulled his wrist away from Avalos, while pushing into him. Avalos ordered defendant to stop resisting, but defendant persisted. Avalos lost contact of defendant's right arm several times. When defendant continued his resistance and Avalos was unable to gain control of him, Avalos punched defendant several times in the back of the head. Defendant still did not comply and continued to struggle. He appeared to reach toward his shorts or waistband.

Critz caught up to Avalos and defendant during the struggle. Defendant still refused to comply, even after Critz got on top of him and attempted to gain control of defendant's right arm. He continued to pull his arms away from the deputies and continued reaching toward his waistband.

Eventually the officers gained control over defendant and searched him. Avalos found a folded pocket knife and a smaller folded "file type knife," as well as two hypodermic syringes containing a black tar-like substance which Avalos opined was heroin.


Lesser Included Offense

A defendant cannot be convicted of a greater offense and a necessarily included lesser offense. (People v. Pearson (1986) 42 Cal.3d 351, 355, disapproved on another ground in People v. Vidana (2016) 1 Cal.5th 632, 651 [to the extent Pearson can be read to suggest a defendant may be convicted of different statements of the same offense it is disapproved].) "'The test in this state of a necessarily included offense is simply that where an offense cannot be committed without necessarily committing another offense, the latter is a necessarily included offense.'" (Pearson, at p. 355.)

Section 69 can be violated in one of two ways. (People v. Smith (2013) 57 Cal.4th 232, 240.) Pertinent to the case at hand, "section 69 expressly requires that the defendant resist the officer 'by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense." (Id. at p. 241.) A defendant who violates section 69 in this manner "necessarily violates section 148[, subdivision] (a)(1) by 'willfully resist[ing] . . . any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment.'" (Smith, at p. 241.)

But the rule prohibiting conviction on a greater offense and its lesser included offense is unavailing to defendant because his conviction for violating section 148, subdivision (a)(1), was not based on the same acts that resulted in his conviction for violation of section 69. The conviction for violation of section 69—use of force in resisting the officers—was based on the force defendant used during the struggle with deputies Avalos and Critz. The conviction for violation of section 148, subdivision (a)(1), was based on defendant's initial flight, before he was caught. In his argument to the jury, the prosecutor stated defendant's running from the house and Avalos, after being commanded to stop, was one violation and struggling with the deputies, rather than submitting to his arrest, was the second violation. Thus, defendant's convictions were based on separate and distinct acts: running and subsequently using force to resist.

Running and using force to resist his arrest certainly were one course of conduct in this matter, but in this state, a "course of conduct can lead to convictions 'of any number of offenses charged.'" (People v. Ramirez (2009) 45 Cal.4th 980, 984; § 954.) While a course of conduct by a defendant may lead to multiple convictions, "[s]ection 654 bars punishment for multiple offenses arising out of a single, indivisible course of action." (People v. Neely (2009) 176 Cal.App.4th 787, 800.) The trial court did not punish defendant for both offenses. The court stayed the sentence on the violation of section 148, subdivision (a)(1) pursuant to section 654. Accordingly, we find no error.

"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." (§ 654, subd. (a).) --------

Pitchess Motion

Defendant requests we review the sealed record on his motion for discovery of the deputies' personnel files pursuant to Pitchess v. Superior Court, supra, 11 Cal.3d 531, and determine whether the superior court erred when it concluded there was no discoverable information in the files. Prior to doing so, defendant moved to augment the appellate record with the sealed transcript of the in camera hearing on the motion and a copy of the materials reviewed in camera. We granted the motion and directed the clerk of the superior court to transmit a sealed copy of the reporter's transcript of the in camera hearing on defendant's Pitchess motion and a sealed supplemental clerk's transcript, including the records considered by the trial court during the in camera hearing.

We received a sealed copy of the reporter's transcript and a declaration stating the records reviewed by the court could not be located. Thereafter, defendant requested that we review the transcript of the in camera hearing to determine if it is sufficient to permit appellate review and, if it is not, to order the appellate record augmented with a settled record concerning the documents reviewed. We have reviewed the sealed transcript of the in camera hearing and find it is sufficient for our review. Accordingly, we deny the pending motion to order a settled record.

Prior to trial, defendant brought a motion pursuant to Evidence Code sections 1043-1047 and Pitchess v. Superior Court, supra, 11 Cal.3d 531, to discover information in the personnel records and files of deputies Avalos and Critz. Specifically, defendant sought information relating to their lack of credibility, use of excessive force, prior wrongful acts of moral turpitude, dishonesty, and the planting of evidence. The court found sufficient cause was shown to review the records of the deputies in camera. The court held a hearing in camera with a deputy county counsel and the custodian of records. The court described the documents it reviewed and their contents.

We review the court's order denying the Pitchess motion for an abuse of discretion. (People v. Mooc (2001) 26 Cal.4th 1216, 1228.) "In Mooc, the Supreme Court held that in order to preserve the defendant's ability to obtain appellate review of the denial of a Pitchess motion, the trial court should make a record of the documents it reviewed in camera, either by photocopying the documents, preparing a written list of the documents it reviewed and/or stating on the record the documents it reviewed. [Citation.] Discoverable information generally includes limited information from a peace officer's confidential personnel records that is potentially relevant to the defense's case—either a proposed defense or the impeachment of an officer." (People v. Nguyen (2017) 12 Cal.App.5th 44, 47-48.)

We independently reviewed the sealed reporter's transcript of the in camera hearing in which the court and the custodian of records discussed the contents of various documents reviewed. We conclude the trial court did not abuse its discretion in finding there was no discoverable information in either deputy's file.


The pending motion for an order to prepare a settled statement of the hearing on the Pitchess motion is denied. The judgment is affirmed.