Filed 3/14/16 P. v. Vega CA2/7

                    NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                         SECOND APPELLATE DISTRICT
                                                       DIVISION SEVEN




THE PEOPLE,                                                                   B262911
          Plaintiff and Respondent,                                           (Los Angeles County
                                                                              Super. Ct. No. PA077074)
          v.
ANTHONY DAMON VEGA,
          Defendant and Appellant.




          APPEAL from a judgment of the Superior Court of Los Angeles County,
Kathryne Ann Stoltz and Daniel B. Feldstern, Judges. Affirmed.
          Anthony Damon Vega, in pro. per. and Daniel B. Feldstern, under appointment by
the Court of Appeal, for Defendant and Appellant.
          No appearance for Plaintiff and Respondent.


                                                 ______________________
       Following a confrontation with four police officers, Anthony Damon Vega was
charged with several felony and misdemeanor counts of assaulting and resisting a police
officer. Representing himself, Vega filed a motion to suppress statements and
observations of the police officers, as well as his own statements, made after he was
asked to step out of his parked car, which he argued was an illegal detention. The
motion, heard concurrently with Vega’s preliminary hearing, was denied. Vega was
subsequently convicted by a jury on three felony counts and one misdemeanor count
based on the incident. In a bifurcated trial the jury found true special allegations Vega
had suffered a prior strike conviction and had served a prior prison term for a felony.
Vega was sentenced to an aggregate state prison term of 16 years eight months. We
affirm the judgment.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The Suppression Hearing
       On the night of May 27, 2013 an individual reported to police that a suspicious
male was knocking on the front door of a neighboring house, known to law enforcement
as a site of gang activity. San Fernando Police Officers Jorge Bayardo and Michael
Delgado responded to the call. When they arrived, the house was dark. No one was on
the front porch or in the front yard.
       Officer Delgado testified, when he approached the house, he heard a noise and
noticed Vega sitting in the front passenger seat of a car parked on the street in front of the
house. Delgado asked Vega if he lived in the house. Vega, who appeared agitated, said,
“What the fuck do you care?” Delgado told Vega to relax, explained that he and Officer
Bayardo were responding to a call and again asked if Vega lived at the house. Vega
cursed the officer. Delgado then asked Vega to step out of the car, and Vega complied.
       Once out of the car, Vega, a large man, advanced toward Officer Delgado, who
backed away because Vega’s hands were concealed inside his sweatshirt. Delgado told
Vega three times to remove his hands from inside his sweatshirt. Vega ignored the
command and continued to curse the officer. Delgado radioed for assistance and used his
pepper spray to attempt to control Vega. Vega displayed his hands and walked to the

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front yard fence, where Delgado ordered him to kneel on the ground. Vega refused. At
that point Sergeant Saul Garibay and Officer Armando Patino arrived.
         Sergeant Garibay identified himself to Vega and said he had a Taser, which he
would use unless Vega complied with his instructions. Vega started to comply with
Garibay’s command to kneel on the ground, but suddenly stopped and lunged at the
sergeant. Garibay fired his Taser at Vega. Vega fell to the ground. He then pulled the
Taser darts from his chest, stood and began throwing punches at the officers. Vega
fought with the four officers, kicking and hitting each of them before being subdued and
handcuffed. Sergeant Garibay and Officers Patino and Bayardo were all injured in the
melee.
         Officer Bayardo testified that Vega had assumed a fighting stance when he got out
of the car. Bayardo, who had known Vega since junior high school, recognized him at
this point and repeatedly called to him and shined his flashlight in an attempt to get his
attention. Vega closed his hands into fists, looked back and forth at each officer as he
cursed them and demanded that they leave. According to Bayardo, Vega continued his
verbal abuse of the officers and remained defiant after he walked to the fence.
         Vega testified at the suppression/preliminary hearing that he was sitting in his
uncle’s car outside the house when Officers Bayardo and Delgado arrived. Vega left the
car before the officers saw him. As Vega was walking toward his house, the officers
approached, told him that they had received a call and asked if Vega had heard any type
of disturbance. Vega said neither he nor his uncle had seen or heard anything. The
officers thanked him.
         When Vega again turned toward his house, the officers asked if Vega was on
probation or parole. Vega answered, “No.” Officer Delgado then cursed Vega and
ordered him to place his hands behind his back. When Vega resisted, Delgado used his
pepper spray. Vega became angry, cursed the officers, raised his hands in the air and
walked toward the fence. The officers began hitting Vega from behind. Vega fell to the
ground, and one of the officers deployed his Taser. Vega lost consciousness for a time.


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He next remembered lying on the ground, his chest hurting from the weight of the
officers on top of him.
       At the conclusion of the hearing, Vega argued his motion to suppress the police
officers’ statements and observations and his own statements to them should be granted
because his detention was not supported by reasonable suspicion. In denying the motion,
the trial court, acting in the limited role of magistrate, concluded the officers were
credible and Vega was not. The court determined the officers had a right under the
circumstances to approach the car and speak to Vega about the report of suspicious
activity. Furthermore, no detention occurred until Officer Delgado had Vega step out of
the car for officer safety in response to Vega’s hostile and aggressive behavior. The court
found Vega’s immediate and escalating combativeness outside the car justified the
officers’ use of force to restrain and then to arrest him. After denying the suppression
motion, the court dismissed one count of battery on a police officer (Officer Delgado)
with injury and held Vega to answer on the remaining charges, in effect rejecting Vega’s
claim he had acted lawfully in self-defense when he reacted to the police officers’ attack.
       2. The Information and Pretrial Proceedings
       On August 19, 2014 Vega was charged in an information with two counts of
aggravated assault on a police officer (Officers Patino and Bayardo) (Pen. Code, § 245,
subd. (c)),1 with special allegations Vega had personally inflicted great bodily injury on
the officers (§ 12022.7, subd. (a)), battery with injury on a police officer (Sergeant
Garibay) (§ 243, subd. (c)(2)), resisting an executive officer (all four officers) (§ 69), and
misdemeanor battery on a peace officer (Officer Delgado) (§ 243, subd. (b)). The
information also specially alleged as to the four felony counts that Vega had previously
suffered one prior serious or violent felony conviction within the meaning of the three
strikes law (§§ 667, subds. (b)-(j), 1170.12) and had served one separate prison term for a
felony (§ 667.5, subd. (b)). Representing himself at his arraignment, Vega pleaded not
guilty and denied the special allegations.


1      Statutory references are to this code.

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       On September 10, 2014 Vega filed a second motion to suppress, which the trial
court heard and denied on September 25, 2014. The court also terminated Vega’s self-
representation after finding he had deliberately engaged in serious and obstructionist
misconduct that threatened to subvert the proceedings. The court appointed the public
defender to represent Vega.
       On January 21, 2015 the People filed an amended information in which the date of
the alleged prior strike conviction for robbery was changed. Vega pleaded not guilty and
denied the special allegations.
       3. The Jury Trial and Verdict
       Jury trial commenced on January 22, 2015. Vega’s defense at trial was that he
acted in lawful self-defense against the officers’ use of excessive force. Vega’s and the
officers’ testimony at trial was similar to their testimony at the suppression/preliminary
hearing.
       During closing argument, after remarking that Vega was larger in physical stature
than the officers, Vega’s attorney argued, “Now, I can’t help but have this image of the
Incredible Hulk, and these guys are over-reacting just because he’s big. Remember the
Hulk, he never gets big and scary until you do something wrong. Kind of like my client.
He wasn’t the aggressor. He wasn’t looking for a fight. He didn’t need to fight two and
four cops. They came to him. . . .”
       In rebuttal the prosecutor argued, “And it’s possible that the defendant on that
night was acting like the Hulk. He got angry, he was ripping Tasers out of his chest,
getting up, swing at the officers—actually, you know what, that’s a bad example because
that’s also reasonable, too. But one thing about the Hulk that you need to understand is
that the Hulk didn’t get big just when he was wronged, he got big when he was angry.
And that night the defendant no doubt was angry. . . .”
       On January 28, 2015 a jury convicted Vega of both counts of aggravated assault
on a police officer with true findings on the personal injury enhancement allegations.
The jury also found Vega guilty of resisting an executive officer and misdemeanor
battery on a peace officer. The jury acquitted Vega of battery with injury on a police

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officer. In a bifurcated trial the jury found true the prior strike and prior prison term
allegations.
       4. The Sentencing Hearing
       On March 18, 2015, after denying Vega’s motion to dismiss the prior strike
conviction under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th
497, 529-530, the trial court sentenced Vega to an aggregate state prison term of 16 years
eight months: Eight years (the middle term of four years doubled under the three strikes
law) for one count of aggravated assault on a police officer, plus three years for the great
bodily injury enhancement; a consecutive term of two years eight months (one-third the
middle term doubled) for the second count of aggravated assault on a police officer, plus
one year (one-third the middle term) for the great bodily injury enhancement; plus a
consecutive term of one year for misdemeanor battery on a peace officer; plus one year
for the prior prison term enhancement. The court imposed and stayed the sentence for
resisting an executive officer.
                                       DISCUSSION
       Vega filed a timely notice of appeal, and we appointed counsel to represent him on
appeal. After examination of the record, counsel filed an opening brief in which no
issues were raised. On October 23, 2015 we advised Vega he had 30 days within which
to submit any contentions or issues he wished us to consider. After granting Vega one
extension of time, Vega filed hand-printed supplemental briefs on November 18, 2015
and December 2, 2015. In the first brief Vega claimed his appellate counsel provided
ineffective assistance by submitting a brief in which no issues were raised pursuant to
People v. Kelly (2006) 40 Cal.4th 106 and People v. Wende (1979) 25 Cal.3d 436. In his
second supplemental brief Vega argued the trial court erred in denying his suppression
motion, his trial counsel provided ineffective assistance and the prosecutor committed
prejudicial misconduct during trial.
       1. The Trial Court Properly Denied Vega’s Motion To Suppress
       Vega argues on appeal, as he did at the suppression hearing, the officers
unlawfully detained him because there was no evidence he was involved in unlawful

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activity. After reviewing the transcript of the hearing and utilizing the appropriate
deferential standard of review, we conclude the court properly denied the suppression
motion. (People v Tully (2012) 54 Cal.4th 952, 979 [“‘[i]n reviewing a suppression
ruling, “we defer to the superior court’s express and implied factual findings if they are
supported by substantial evidence, [but] we exercise our independent judgment in
determining the legality of a search on the facts so found”’”; “‘[a]s the finder of fact . . .
the superior court is vested with the power to judge the credibility of the witnesses,
resolve any conflicts in the testimony, weigh the evidence and draw factual inferences in
deciding whether a search is constitutionally reasonable’”].)
       The officers had the right to approach the parked car. Once there Officer Delgado
and Vega initially engaged in a consensual encounter. Delgado’s conversation with Vega
was nonaccusatory; the officer reassured Vega he was merely seeking information about
the call to which the officers were responding. (See United States v. Drayton (2002)
536 U.S. 194, 201-202 [122 S.Ct. 2105, 153 L.Ed.2d 242].) Vega was still not detained
when he was asked by Delgado to step out of the car. A mere request, as opposed to a
command dictating a person’s conduct, does not constitute a Fourth Amendment
restraint. Delgado’s request was unaccompanied by threats or physical force. Indeed,
Delgado did not conduct a pat search or attempt to physically restrain Vega until Vega
charged him. In short, Vega’s interaction with Delgado prior to attacking the officers
was entirely consensual.2
       2. Vega’s Attorney Did Not Provide Ineffective Assistance
       Vega claims his attorney provided ineffective assistance by characterizing him as
“the Hulk.” The comment was intended to illustrate with a familiar analogy the defense
theory that Vega, although a large man, had merely defended himself against overzealous
police officers. By conceding that Vega’s size and apparent strength made him capable
of inflicting harm when unjustifiably attacked, Vega’s attorney made a reasonable tactical

2     Even if Vega’s detention had been unlawful, it is difficult to understand why that
would justify suppression of the officers’ observations about the confrontation that
ensued between them and Vega.

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choice given the state of the evidence. (See People v. Gamache (2010) 48 Cal.4th 347,
392-393.)
       3. Vega Has Forfeited His Claim of Prosecutorial Misconduct; His Argument
          Also Has No Merit
       Vega contends the prosecutor committed misconduct by comparing him to the
Hulk during rebuttal argument. Such comments, Vega argues, inflamed the jury and
were prejudicial.
       No objection was made to any of the comments Vega now identifies.
Accordingly, he has forfeited his prosecutorial misconduct argument on appeal. (See
People v. Dykes (2009) 46 Cal.4th 731, 766; People v. Prince (2007) 40 Cal.4th 1179,
1275.) Vega’s claim is also without merit. The prosecutor’s remarks were a fair
response to the defense argument, reasonably based on the evidence and not calculated to
incite the emotions of the jury. (People v. Pearson (2013) 56 Cal.4th 393, 431-432.)
       We have examined the entire record and are satisfied Vega’s appellate attorney
has fully complied with the responsibilities of counsel and no arguable issue exists.
(Smith v. Robbins (2000) 528 U.S. 259, 277-284 [120 S.Ct. 746, 145 L.Ed.2d 756];
People. Kelly, supra, 40 Cal.4th at pp. 118-119; People v. Wende, supra, 25 Cal.3d at
pp. 441-442.)
                                     DISPOSITION
       The judgment is affirmed.


                                                 PERLUSS, P. J.

       We concur:


                ZELON, J.                        BLUMENFELD, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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