Filed 6/27/16 P. v. Holmes CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


THE PEOPLE,                                                          B263891

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                      Super. Ct. No. BA432778)
         v.

MONTY HOLMES,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Karla D. Kerlin, Judge. Affirmed as Modified.
         Linn Davis and David M. Thompson, under appointment by the Court of
Appeal, for Defendant and Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, Paul M.
Roadarmel, Jr., and David A. Voet, Deputy Attorneys General, for Plaintiff and
Respondent.
      Defendant Monty Holmes appeals a conviction for resisting an executive
officer and vandalism. He maintains that, in violation of his constitutional right to
testify and present a defense, the trial court erred in ruling certain evidence
admissible for impeachment, forcing him not to testify. Defendant also contends
that the trial court erred when it computed his presentence conduct and custody
credits. We conclude that the latter contention has merit and remand the action to
the superior court to recalculate defendant’s presentence credits. In all other
respects we find no error, and affirm.


                        PROCEDURAL BACKGROUND
      A jury convicted defendant of one count of resisting an executive officer
            1
(Pen. Code, § 69), and one count of vandalism over $400 (§ 594, subd. (a)).
Defendant was also charged with and later admitted a prior conviction for first
degree burglary (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
      Defendant was sentenced to 32 months in state prison (the same low term of
16 months, doubled as to each count, to run concurrently). He was ordered to pay
various fines and fees and awarded 113 days of presentence custody credits,
calculated at 15 percent under section 2933.1.


                           FACTUAL BACKGROUND
Prosecution Evidence
      On January 9, 2015, Los Angeles Police Detectives Horton and Gagely were
assigned to the 77th Division to investigate crimes such as burglary, theft and
vandalism. At about 8:15 a.m. that day, the detectives met with Virginia Maple


1     Further unspecified statutory references are to the Penal Code.

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and her brother, Willie Lloyd, who came into the station to report a burglary at
their mother’s home at 805 East 83rd Street in Los Angeles. They said this was the
second burglary of the home within several months, and provided an incident
report number for an August 2014 burglary which had been reported by their sister,
Mary Bolden. Maple and Lloyd said both crimes had been committed by
defendant, whom Maple refers to as her nephew (although he is her niece’s son).
      The incident report of the August 2014 burglary revealed that Bolden told
the police that her nephew (defendant) had forced entry into the house by prying
open metal security bars. He had since changed the locks and was living in the
house without permission. An officer had gone to the home and verified that metal
security bars had been pried open and that the bars of a window had been broken in
order to gain entry to the residence. Maple and Lloyd identified defendant from a
prior booking photo Detective Horton located at the station. They showed the
officers documents indicating they had the right to control the property, and asked
the officers to remove defendant from their mother’s home.
      At approximately 9:30 that morning, Detectives Horton and Gagely arrived
at the residence on East 83rd Street in an unmarked car. They parked across the
street to observe the area. A car pulled into the driveway of the residence.
Defendant got out on the passenger side, opened an iron gate, walked down the
driveway and disappeared. The driver remained in the car. Defendant entered the
house through a side or rear door and emerged from the residence about five
minutes later out the front door, which he secured behind him. He walked down
the front stairs, and stopped in the yard to pet a pit bull dog.
      Believing he was a burglary suspect, the detectives got out of their car and
approached defendant to detain him. Detective Horton drew his gun and ordered
defendant to lie down with his hands behind his head. The detective did so for

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several safety-related reasons: (1) defendant was separated from him by an iron
gate, (2) the gate interfered with the detective’s ability to see the front of the house,
(3) the house had not been cleared of other people or potential threats, (4) the
driver remained in the car in the driveway, (5) there was a pit bull within arm’s
reach in the front yard, and (6) defendant was a burglary suspect.
      The detectives identified themselves as police officers and displayed their
badges, but defendant repeatedly refused to obey this order to lie on the ground.
He said: “No. I didn’t do anything wrong. Why are you stopping me?” After “a
significant amount of time,” defendant finally got on the ground but continued to
refuse to put his hands behind his back or over his head. The detectives summoned
backup who were informed they were dealing with a burglary suspect. Backup
officers arrived, placed defendant in handcuffs and escorted him outside the gate.
      By this time, a hostile crowd had begun forming and was growing;
threatening words were directed at the officers. Additional backup was
summoned. Officers Callian and Aranda responded and were instructed to get
defendant into a patrol car and immediately remove him from the area. Once he
had turned custody of defendant over to officers Callian and Aranda, Detective
Horton––assisted by numerous other officers, supervisors and a police helicopter––
turned his attention to crowd control, concerned for his and other officers’ safety.
      Officers Callian, Aranda and another officer escorted defendant, in
handcuffs, to a patrol car. As they approached the car, defendant asked to speak to
his “granny,” but was told “no.” He resisted being put into the patrol car and
struggled to get away, so the officers took him to the ground; one hobbled his legs
to secure them. Officer Callian activated an internal recorder to record video and
audio of what occurred in the backseat of the patrol car.



                                            4
      Officers Callian, Aranda and others continued to struggle with defendant,
trying to get him into the patrol car. Defendant continued to resist for some 10-to-
15 minutes. The police were unable to get him into the car, even though officers
pushed and pulled from opposite sides of the car. Defendant kept locking his legs
around the patrol car door. Throughout this time the crowd began to surround the
officers and defendant, who remained uncooperative. Officer Callian wanted to
get defendant into the car, get him out of the area and de-escalate an increasingly
hostile crowd situation. She determined the only options were to tase defendant or
to use pepper spray, and that pepper spray would be a lesser use of force.
      Officer Aranda sprayed defendant’s face with pepper spray because he
continued to refuse to get into the patrol car. Eventually, the officers were able to
get him into the back seat of the patrol car and quickly drove away. They had not
gone far before they had to stop because defendant––who had not yet been placed
in a seat belt––kicked at the rear window of the patrol car and shattered the glass.
Defendant was sprayed again with pepper spray in order to transfer him to a
second patrol car, which then took him to the station.
      The recording device from the patrol car revealed that, once in the back seat
of the first patrol car, defendant asked “Why ya’ll doing me like this?” and accused
the officers of “slamming [him] for nothing.” Officer Aranda can be heard telling
defendant to relax. Defendant said his “arm is broke” (it was not). Officer Aranda
told defendant he would be pepper sprayed. After defendant broke the window
and was pepper-sprayed a second time, he complained about his eyes.


Defense Evidence
      Maple has six siblings; Bolden is the eldest and has power of attorney over
their mother’s property, house and business. Defendant is the son of Maple’s

                                          5
niece. He has lived in the house on East 83rd Street “a long time,” although Maple
cannot estimate how long either in months or years. Only family members live
there. Maple and her brother Willie Lloyd went to the police on January 9, 2015,
after Bolden and Lloyd told her the house had been broken into, and they wanted
to shut it down. Maple has a limited relationship with Bolden, and does not “do a
lot of talking with” her siblings. Bolden told Maple that someone had broken into
their mother’s house and that it had been burglarized in August 2014, but provided
no additional details. Maple did not go to the police on January 9, 2015 to report a
burglary, and did not accuse defendant of being involved in a burglary at her
mother’s house. Rather, it was Maple’s expectation that the police would go to her
mother’s home, remove the occupants (including defendant), and bring them to the
police station in handcuffs, although she did not know what she expected to
happen after that.
      Defendant did not testify.


                                    DISCUSSION
1.    Defendant Has Not Presented a Cognizable Claim of the Violation of any
      Constitutional Right

      Defendant maintains the trial court violated his Sixth and Fourteenth
Amendment right to testify and present a defense by deeming his parole status
admissible if the prosecutor recalled Detective Horton to testify in the event
defendant testified in his own defense. Defendant argues that, in making this
ruling, the trial court impermissibly and effectively forced him not to testify. This
assertion fails for several reasons. First, there is no constitutional question at issue.
Defendant argues only that the trial court was poised to admit inadmissible
evidence for an improper purpose, a claim he is precluded from raising because he

                                            6
never testified and the purportedly inadmissible evidence in question was never
admitted for any purpose. Second, even if defendant could assert this claim, it
would fail on the merits. The court’s ruling was not premised on permitting the
evidence to be introduced as impeachment, but to reflect the officers’ state of mind
and justify the degree of force employed in defendant’s detention and arrest and in
anticipation of his assertion that excessive force was used. Third, assuming any
error occurred, it was harmless.


      a.     Relevant Proceedings
      Before trial, in connection with its consideration of jury instructions, the
court asked defense counsel if the “lawful performance” of police officers would
be an issue at trial. If so, the court would need to provide the jury the portion of
the pattern instruction that states that a “police officer is not lawfully performing
his or her duties if he or she is unlawfully arresting or detaining someone, using
unreasonable force.” In addition, in deciding whether an arrest was lawful, the
jury had to “consider evidence of the officer’s training and experience and all the
circumstances known by the officer when he or she arrested the person.” (See
CALCRIM No. 2670(A)&(B).) When asked to explain the officers’ presence at
the residence on January 9, the prosecutor informed the court that Maple had come
into the station that morning to report the second burglary since August 2014 at her
mother’s home. The detectives had located an incident report regarding the first
burglary and, Maple and Lloyd had unequivocally identified defendant as their
nephew and the person who broke into the house from a booking photo of him.
They told Detective Horton that defendant was staying at the house, but had no
right to be there and they wanted him out. The report regarding the August 2014
incident revealed that an officer who had inspected the house after Bolden’s report

                                           7
observed the damaged security bars and broken window used to gain entry. As
Detective Horton was observing the residence that morning he saw defendant,
whom he suspected of burglary, go inside the house and leave out the front.
Defendant fiercely resisted the officers from the moment he was detained.
      Over the course of several discussions between the court and counsel,
defendant’s trial counsel consistently informed the court that her client’s defense
was based on the dual theories of unlawful arrest and an excessive use of force.
The court noted that defendant’s right to be at the residence was not at issue given
that he was not charged with burglary. Defendant’s counsel was not willing to
abandon the unlawful arrest defense without knowing how prosecution witnesses
would testify, having earlier noted that backup officers were informed before
arriving that defendant was a burglary suspect. The court agreed, stating it would
instruct according to evidence elicited at trial.
      After Maple testified, the court and counsel discussed whether defendant
would testify. Before discussing that matter with defendant, his attorney wanted to
know what impeachment evidence the prosecutor intended to use if defendant
testified. The court ruled that defendant could be impeached with his 2009 and
2013 felony convictions for grand theft and residential burglary. To limit undue
prejudice and confusion for jurors if defendant testified, the court determined the
prior convictions would be sanitized and referred to simply as “felony theft
offenses.”
      In the event defendant did choose to testify and was “impeached with these
two prior felony theft offenses,” the prosecutor requested the court’s permission to
recall Detective Horton to testify. This colloquy followed:
      “[PROSECUTOR]: . . . in light of the theory that they’ve elected to pursue,
      the defendant in this case is arguing that this was an unlawful arrest and
      unlawful detention, and that the officers used excessive force.
                                            8
           “The first display of force by the officers in this case was Detective
      Horton approaching [defendant] and ordering him to the ground at gunpoint.

      “[THE COURT]: Because he’s a known parolee.

      “[PROSECUTOR]: In light of the fact that he has a record, I’m sure that
      played into it. And since that is at issue, whether or not they used excessive
      force, then the jury should be able to consider the fact that the officers knew
      that he had a criminal history.

      “[THE COURT]: It actually occurred to me during the entire case being
      presented. I’m surprised that no one actually brought it up, because the
      instruction on resisting speaks to all the facts related to the officer.
             “Let’s look at [CALCRIM No.] 2670 . . . .
             “If the detectives went there knowing that he was a parolee for a first
      degree [residential burglary], that’s definitely a fact known to the officer that
      no doubt affects the way in which a detention, arrest, et cetera, is
      effectuated. [¶] ‘In deciding whether the detention was lawful, consider
      evidence of the officer’s training and experience, and all the circumstances
      known to the officer when he or she detained the person.
             “An unlawful arrest also has a similar provision. Consider evidence
      of the officer’s training, experience, and all circumstances known.
             “This had occurred to me that if the officers knew this when they went
      –– I don’t know whether they did or not. I’m assuming that they did
      because they pulled the packet. They pulled his photo. They got some
      statements. They got an identification.
             “If they know who they are dealing with when they go out to a
      location, those facts would definitely impact the manner in which the . . .
      contact was conducted.”

      Implicitly acknowledging the court’s point that an officer’s knowledge of a
suspect’s parole status would be relevant to an officer’s conduct in making an
arrest, defendant’s counsel argued that Detective Horton had no information that
defendant was on parole when he made the arrest, and relied only on the fact that
defendant was a burglary suspect. In response, the court observed:


                                          9
             “The problem is that we bifurcated the prior, and the witnesses are
      instructed not to bring it up in any way.
             “So it is an artificial presentation for purposes of the jury not being
      prejudiced by hearing [defendant] . . . is on parole for a residential burglary,
      which is the same underlying charge.
             “So what I would suggest we do is this: If [defendant] does testify, I
      think that’s only fair because now they will know. . . . I think residential
      burglary is very prejudicial to [defendant]. I think we would probably have
      to sanitize Detective Horton’s testimony, still. And this is so you can
      discuss with your client whether or not he wishes to testify.
             “I think we would still have to sanitize it to know that [defendant] had
      suffered a recent felony theft offense and was on parole, because that is
      enough facts, but doesn’t specifically name the same underlying charge.”

      The court noted its effort “to balance all the factors to make sure that we
have a fair presentation of evidence for both sides so that [defendant] is not overly
prejudiced,” and asked defense counsel to explain the situation to defendant before
he decided whether or not to testify. Defendant consulted with his counsel, and
chose not to testify.

      b.     Defendant’s Sixth Amendment Claim Fails Because He Did Not
             Testify

      “It is settled that ‘if a defendant wishes to preserve for appeal an objection to
a trial court’s in limine ruling permitting impeachment by a prior conviction, he or
she must take the witness stand and actually suffer such impeachment.’ (People v.
Sims (1993) 5 Cal.4th 405, 454; accord, People v. Collins (1986) 42 Cal.3d 378,
383.)” (People v. Ayala (2000) 23 Cal.4th 225, 272-273.) Defendant’s Sixth
Amendment claim is precluded because he chose not to testify and the purportedly
inadmissible evidence was not admitted.
      The Attorney General contends that defendant forfeited the issue on appeal
by not testifying at trial. She relies on the well-established rule that “a motion to
                                          10
exclude impeachment evidence is not reviewable on appeal if the defendant
subsequently declines to testify. [Citations.]” (People v. Ledesma (2006) 39
Cal.4th 641, 731 (Ledesma); see also Collins, supra, 42 Cal.3d at pp. 384–385.)
Typically, a defendant must testify to preserve an impeachment issue for review
because (1) the error analysis is speculative without his or her testimony, due to the
possibility that (a) the trial court may have changed its ruling in response to the
actual content of defendant’s testimony, or (b) the prosecutor may not have
presented the impeachment evidence based on the defendant’s testimony; and (2) a
prejudice analysis is speculative when there is no testimony by a defendant in the
record. (Collins, supra, at pp. 384–385.)
      We reject defendant’s contention that this forfeiture rule is inapplicable here
because a purportedly erroneous ruling by the trial court which would have
allowed Detective Horton to testify he knew defendant was on parole would have
caused irreparable damage to defendant’s defense that his detention and arrest were
unlawful. Defendant provides no authority suggesting this creates an exception to
the rule of Ledesma and Collins.


2.    Any Additional Testimony by Detective Horton Would Have Been Offered to
      Rebut an Excessive Force Defense, not for Impeachment

      We also reject defendant’s assertion that the prosecutor’s goal in potentially
recalling Detective Horton was to impeach defendant, rather than to simply bolster
the prosecution’s case with regard to the degree of force used in the detention and
arrest. We agree with respondent’s characterization that the trial court’s ruling on
this issue was no more than a “garden variety evidentiary ruling” which did not
implicate defendant’s right to testify or his ability to present a defense.



                                           11
      Detective Horton may or may not have been aware of defendant’s status as a
parolee on January 9, 2015. However, he was told that day by Maple and her
brother that their nephew had burglarized their mother’s home twice, and had
remained there for a very long time without permission. Maple unequivocally
identified defendant from his booking photo, and demanded that police remove
him from her mother’s house. Defendant was arrested based on evidence provided
by Maple and her siblings that he was a suspect in two burglaries. With this
evidence in mind, the detectives justifiably approached defendant’s detention and
arrest with a heightened level of caution, care and force.


3.    Harmless Error
      Defendant does not contend there would have been any error in introducing
his felony theft convictions. Under such circumstances, any additional prejudice
caused by informing jurors he was on parole in one of those cases would have been
minimal. Defendant makes no argument as to why the admission of his status as a
parolee under such circumstances was particularly prejudicial to his defense of
unlawful arrest. Further, there was overwhelming evidence that he resisted arrest,
refused to obey officers’ orders, forcefully and persistently resisted officers’
attempts to control him, and shattered a patrol car window. In addition, defendant
offered no evidence to support his claim of excessive force. Thus, whether
assessed under the state or federal standard, any error that occurred was harmless.
(See People v. Watson (1956) 46 Cal.2d 818, 836 [no error under California law
because there is no reasonable probability there would have been a more favorable
verdict had defendant testified]; Chapman v. California (1967) 386 U.S. 18, 25 [If
it appears beyond a reasonable doubt that error complained of did not contribute to
verdict, verdict will stand on appeal].)

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4.    Miscalculation of PreSentence Custody Credits
      Neither offense of which defendant was convicted was a “violent” felony.
Respondent appropriately concedes that a defendant sentenced under the Three
Strikes law (§ 1170.12) is entitled to presentence conduct credits pursuant to
section 4019, rather than a lesser maximum amount under section 2933.1, unless
his current conviction is for a violent felony. (People v. Thomas (1999) 21 Cal.4th
1122, 1130.) Accordingly, it is agreed that the trial court erred when it calculated
defendant’s presentence custody conduct credit under section 2933.1. The matter
must be remanded to permit the trial court to recalculate the proper amount of
presentence custody credit.


                                  DISPOSITION
             The matter is remanded to the superior court to recalculate
defendant’s presentence credits under section 4019. The clerk of the superior court
is directed to prepare an amended abstract of judgment reflecting the sentencing
modification and forward it to the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                               WILLHITE, J.

             We concur:




             EPSTEIN, P. J.                    MANELLA, J.
                                          13
