Filed 8/18/14 P. v. Jones CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,                                                                                  C073440

                   Plaintiff and Respondent,                                      (Super. Ct. No. 12F5540)

         v.

ALBERT LEE JONES,

                   Defendant and Appellant.




         A jury found defendant Albert Lee Jones guilty of possessing methamphetamine,
transporting methamphetamine, and resisting a peace officer. After the trial court found
true the allegation that defendant was previously convicted of a serious felony and served
two prior prison terms, the court sentenced defendant to an aggregate term of 10 years in
state prison.


         In his opening brief, defendant asserted the trial court erred in: (1) denying his
request for a continuance to allow him to retain private counsel; (2) admitting evidence:

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he was on parole at the time of his arrest; he fought with peace officers in the jail after he
was arrested; and he surrendered a plastic baggie found in his rectum by peace officers;
and (3) refusing to instruct the jury that defendant “could legally resist the officers’ use of
excessive force.” Regarding these contentions, we find no prejudicial error.
       In a supplemental brief, defendant argued that the recent amendments to Health
and Safety Code section 11379 apply retroactively. Health and Safety Code
section 11379 criminalizes the transportation of specified controlled substances including
methamphetamine. (Stats. 2000, ch. 8, § 5, p. 51; Stats. 2001, ch. 841, § 7, pp. 6870-
6871.) Courts had interpreted the term “transport” to include transportation of controlled
substances for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v.
Eastman (1993) 13 Cal.App.4th 668, 673-677.) But effective January 1, 2014, the
Legislature amended Health and Safety Code section 11379 to define “transports” as
“transport for sale.” (Health & Saf. Code, § 11379, subd. (c).)
       We conclude that under In re Estrada (1965) 63 Cal.2d 740, the amendments to
Health and Safety Code section 11379 apply retroactively to defendant’s benefit. We
will reverse the conviction for unlawfully transporting methamphetamine and remand the
matter for resentencing.
       In all other respects, we affirm.
                   FACTUAL AND PROCEDURAL BACKGROUND
       On August 8, 2012, Shasta County Sheriff’s Deputies Chris Staup, Levi Solada,
and Daniel Smetak were conducting parole, probation, and gang compliance checks. In
an unmarked car, but wearing identifying tactical vests, the deputies were patrolling a
“high-crime” area in Redding, California, when defendant drove past them. Solada
recognized defendant as a parolee; he turned around to follow defendant and confirmed
defendant was still on parole.
       Defendant pulled into a trailer park and stopped his car. The deputies parked
behind defendant, intending to perform a parole compliance check. Staup and Solada

                                              2
approached the driver’s side window; Smetak approached the passenger’s side. Sitting in
the passenger’s seat was a woman named Vanessa Pride; she appeared to be nervous.
Solada asked defendant if he had anything illegal on his person or in the vehicle and
defendant answered, “no.” Solada then told defendant they were going to search him as
part of a parole search and asked him to step out of the car.
       Defendant got out of the car but seemed “fidgety” and “a little agitated.” Solada
asked defendant to put his hands on top of his head so that Solada could conduct a
patsearch. Rather than put his hands on his head, however, defendant set his hands on
top of his car, then quickly put them in his front pockets. Concerned defendant might be
reaching for a weapon, Solada grabbed defendant’s left forearm and pulled defendant’s
left hand out of his pocket. Defendant began to struggle and pull away from Solada. To
prevent defendant from reaching for a weapon with his right hand, Staup grabbed
defendant’s right arm. Solada instructed defendant to stop resisting and show his hands,
but defendant refused to comply.
       As defendant struggled with Solada and Staup, defendant’s passenger, Vanessa
Pride, became “very agitated and almost erratic.” Smetak told Pride to stay inside the
vehicle and she complied. Smetak then went to assist Solada and Staup with defendant.
       When Smetak reached the other deputies, Solada and Staup had defendant
facedown on the ground and were still trying to control him. Solada was holding the left
side of defendant’s upper body; Staup was holding the right side. Defendant was trying
to kick the deputies with his legs. Using his baton, Smetak struck defendant twice on the
back of his legs. Defendant continued to resist, so again using his baton, Smetak struck
defendant on his left ankle. Defendant stopped resisting and the deputies were able to
place him in handcuffs.
       Handcuffed, defendant resumed his struggle with the deputies rolling from side to
side, “tensing up and trying to get up.” Accordingly, the three deputies held defendant
down while they waited for additional deputies to arrive. After a couple of minutes,

                                             3
defendant “stopped and was cooperative.” The additional deputies arrived shortly
thereafter.
       Once defendant was secured, Solada found “rolling papers” on the ground near the
driver’s side door. Defendant said he was trying to get these same papers from his pocket
before the struggle began. Solada and Staup then searched defendant’s car. Solada
noticed a large tear in the driver’s seat cushion. Inside that tear, Solada found a bindle of
methamphetamine weighing .33 gram. In the pocket behind the passenger seat, Staup
found a small silver and black digital scale and numerous small plastic baggies.
       Following his arrest, defendant was taken to the hospital to receive medical
treatment for two bruises on his calves and a small cut on his “left calf/shin area,” which
was closed with two staples. Defendant was then cleared by the medical staff and taken
to the jail. On the way to the jail, defendant told Solada he “recently started using again
and . . . had given a dirty test to his parole officer about a week and a half prior.”
       Around 11:18 p.m. that same day, Shasta County Correctional Officer Andrew
Page was working in the jail, booking inmates. As part of the process for booking
defendant into the jail, Page performed a visual strip search of defendant. At the point
when Page directed defendant to spread his buttocks for a visual search, defendant
became noncompliant. Defendant refused to follow Page’s instructions; instead,
defendant became “agitated” and started yelling.
       Eventually, defendant complied with Page’s instructions, and when he did, Page
saw what appeared to be a small plastic baggie protruding from defendant’s rectum.
Defendant immediately turned around and took a “bladed stance at [Page,]” his feet
staggered, prepared to fight. Concerned for his safety, Page approached defendant and
attempted to restrain him with handcuffs. As Page approached him, defendant reached
toward his buttocks, apparently trying to push the plastic baggie farther into his rectum.
       In an effort to stop defendant, Page grabbed the arm defendant was using to push
the plastic baggie inside his rectum. Defendant immediately became violent.

                                               4
Correctional Officer Joseph Danis grabbed defendant’s other arm. Defendant continued
to struggle with the officers for two to two and one-half minutes. During the struggle,
Danis was struck in the head. Eventually, the officers were able to subdue defendant and
get him into a facedown position on a bench and secure him with handcuffs.
       Because defendant refused to cooperate with the strip search, Page stood watch
over him throughout the night. During the night, defendant said to Page, “I will give it to
you.” Page immediately gave defendant his Miranda1 rights. Defendant acknowledged
his rights and agreed to speak with Page. He then told Page he had half a gram of
methamphetamine in the baggie in his rectum, and he was now afraid he had pushed it in
too far.
       Defendant was subsequently charged with possession of methamphetamine for
sale, transportation of methamphetamine, and resisting an officer. The People further
alleged defendant was previously convicted of a serious or violent felony and previously
served two prison terms. Defendant pled not guilty to all charges and a jury trial was set
to begin on January 2, 2013. A settlement conference was held on December 10, 2012,
and a trial readiness conference on December 28, 2012.
       On January 2, 2013, the first day of trial, defendant moved for a continuance in
order to hire private counsel. Appointed counsel for defendant advised the court, “Your
Honor, as I think I told the Court and [the prosecution] in chambers yesterday, that
[defendant] had made a motion to continue to hire private counsel some weeks ago. That
was denied. That was prior to the trial readiness date.
       “[Defendant] tells me now he has the funds to hire a private attorney. Apparently
he is attempting to hire Ms. Hixon. My understanding is that she has not been retained,




1      Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694].

                                             5
but that they have the funds to do that and he would like to do that. So he would like to
make a motion to the Court to continue for that purpose.”
       The People opposed the motion and the trial court noted, “this is not the kind of
request that you should be making on the day of trial.” The court denied defendant’s
motion, saying, “This was confirmed for trial last Friday. And other than I know
[defense counsel] wanted to run a suppression motion and he made a request to continue
on that basis and that was denied as well. That is my understanding. But the People are
ready to proceed. This is the day for trial. And so I’m going to deny your request
because it’s not timely made.”
       Defendant’s appointed counsel argued that at the settlement conference, defendant
did move to continue the trial so he could hire private counsel but the motion was denied
because defendant did not have the money to hire private counsel. That morning,
defendant advised his appointed counsel that he now had the money. The court reiterated
its ruling: “Okay. Well, again, I’m going to deny it because it’s untimely. You
announced ready to go on Friday and now all of the sudden you have the funds. It’s
questionable in my mind that you would be successful; plus, you have not retained an
attorney. So again, I’m denying the request to continue.” Appointed counsel again told
the trial court that defendant’s wife was “in the process of trying to retain Ms. Hixon.”
The court again denied his request.
       Moments later, defendant complained that appointed counsel failed to investigate
his case, failed to discuss the case with him, and had done nothing to prepare the case for
trial. A Marsden2 hearing was then held, at the conclusion of which the court denied
defendant’s request to have appointed counsel replaced.




2      People v. Marsden (1970) 2 Cal.3d 118.

                                             6
       Later that morning, appointed counsel advised the trial court that defendant’s wife
had retained private counsel, Mr. Berg, and there would be “some type of money
exchange” later that day. The court responded, “Well, it’s too late. I’m sorry,” noting
the case had been pending since August. Defendant argued he had been “trying hard . . .
doing jobs for [his] uncle, everything to come up with the money to help with the
attorney.” Defendant told the court, “We got the down payment . . . I’m just asking one
day to continue so he can come in in the morning. That’s all, please.”
       The following colloquy then took place: “The Court: Well, it’s not going to result
in one day. The only thing I can do is I can contact the home court judge, Judge
Ruggiero. Was he the one the previous motion was made to?
       “[Appointed Counsel]: Correct. And if Judge Ruggiero would like any input from
me, I’m obviously willing to do that, however the court wants to proceed.
       “The Court: Let me call Judge Ruggiero and see what he says. Okay. Hang tight
for a few minutes.”
       After speaking with Judge Ruggiero, the trial court again denied defendant’s
motion for a continuance as untimely. The court noted defendant was arrested on
August 8, 2012, and released from custody on October 9, 2012, the case was set for trial,
a jury panel was already waiting in the courthouse, and appointed counsel was prepared
for trial. Accordingly, the court found there was no good cause to continue the matter.
       Following another brief recess, the trial court addressed defendant directly: “I
certainly respect your right to have your own counsel represent you. And in the best of
all worlds we want to always accommodate that because, you know, you do have your
right to be represented by an attorney of your choosing.
       “But unfortunately, as I indicated earlier, because of the time that this case has
been pending and the fact that you have waited, for whatever reason, until the last minute
to hire an attorney. You indicated you were going to hire Ms. Hixon, now I’m told that
Mr. Berg is going to be retained at noon today. [¶] . . . [¶] . . . [Appointed counsel] has

                                              7
indicated that he is ready to go forward . . . . [¶] . . . [¶] So if the request had been more
timely and there had been more information that there was actually an attorney ready to
go and they were ready to proceed today, it might be a different story. [¶] . . . [¶] . . .
[appointed counsel] is a good attorney. I’m confident he will do a good job for you and
put his best foot forward on your behalf.”
       A jury was empanelled and six days later, the jury found defendant guilty of
transporting methamphetamine and resisting an officer. The jury found defendant not
guilty of possessing methamphetamine with the intent to sell, but found him guilty of the
lesser included offense of possession. The trial court later found true the allegations that
defendant was previously convicted of a strike offense and served two prior prison terms.
The trial court then sentenced defendant to an aggregate term of 10 years in state prison.
                                        DISCUSSION
                                               I
     Defendant’s Conviction For Transporting Methamphetamine Must Be Reversed
       Defendant contends that under In re Estrada, supra, 63 Cal.2d at page 740, the
recent amendments to Health and Safety Code section 11379 (transportation of
methamphetamine) should be applied retroactively to reverse his drug transportation
conviction. Defendant argues the jury expressly found he did not intend to sell the
methamphetamine found in his car. He says that under amended Health and Safety Code
section 11379, his conviction for transportation of methamphetamine must therefore be
reversed.
       The People agree with defendant’s contentions.
       Among other things, Health and Safety Code section 11379 provides that any
person who “transports” specified controlled substances, including methamphetamine,
shall be punished by imprisonment. (Health & Saf. Code, § 11379 [and its predecessor
version, Stats. 2001, ch. 841, § 7, pp. 6870-6871].) Courts had interpreted the word
“transports” to include transport of controlled substances for personal use. (People v.

                                               8
Rogers, supra, 5 Cal.3d at pp. 134-135; People v. Eastman, supra, 13 Cal.App.4th at
pp. 673-677.) But the Legislature recently amended Health and Safety Code section
11379 to define “transports” as transport for sale. (Health & Saf. Code, §§ 11352, subd.
(c), 11379, subd. (c); Stats. 2013, ch. 504, §§ 1-2.) Those amendments took effect on
January 1, 2014, after defendant’s conviction and sentencing.
       The amended statutes do not contain saving clauses which evince the Legislature’s
intent that the amendments apply prospectively only. According to the author, the
purpose of the amendments was to limit felony drug transportation charges to individuals
involved in drug trafficking. (Assem. Com. on Public Safety, Rep. on Assem. Bill No.
721 (2013-2014 Reg. Sess.) Apr. 15, 2013, coms.) The amendments make it “ ‘expressly
clear that a person charged with this felony must be in possession of drugs with the intent
to sell. Under [the amendments], a person in possession of drugs ONLY for personal use
would remain eligible for drug possession charges. However, personal use of drugs
would no longer be eligible for a SECOND felony charge for transportation.’ ” (Ibid.)
The amendments benefit a defendant by requiring proof of an additional element -- intent
to sell -- for a felony drug transportation conviction, and by eliminating criminal liability
for drug transportation in cases involving possession for personal use. The parties agree
that retroactive application of the amended statute is consistent with the legislative intent
of the amendments. The parties also agree the amendments to Health and Safety Code
section 11379 took effect when the judgment against defendant was not yet final.
(People v. Rossi (1976) 18 Cal.3d 295, 304 [the rule applies to any proceeding, that, at
the time of the supervening legislation, has not yet reached final disposition in the highest
court authorized to review it].)
       Under the present circumstances, we adhere to the well-established principle that
“where the amendatory statute mitigates punishment and there is no saving clause, the
rule is that the amendment will operate retroactively so that the lighter punishment is
imposed” if the amended statute takes effect before the judgment of conviction becomes

                                              9
final. (In re Estrada, supra, 63 Cal.2d at pp. 744, 748.) The rule articulated in Estrada
applies to amendments that add to the elements of a crime or enhancement. (People v.
Vinson (2011) 193 Cal.App.4th 1190, 1197-1199; People v. Todd (1994) 30 Cal.App.4th
1724, 1728-1730; People v. Figueroa (1993) 20 Cal.App.4th 65, 68.) Under Estrada,
defendant is entitled to the benefit of the amendments to Health and Safety Code section
11379. (Vinson, at pp. 1197-1199; Todd, at pp. 1728-1730; Figueroa, at p. 68.)
Accordingly, we will reverse the conviction for transporting methamphetamine.
                                             II

            The Trial Court Did Not Abuse Its Discretion And Did Not Violate

             Defendant’s Constitutional Rights In Denying His Request For

                        A Continuance To Obtain Private Counsel
       Defendant contends the trial court abused its discretion and violated his
constitutional rights to due process and effective assistance of counsel by denying his
request to continue the trial. In support of his contention, defendant argues that he acted
diligently to hire private counsel because he had money to hire private counsel on the day
he made his motion. He also argues the continuance “would have been little or no
inconvenience to the parties,” because the trial was scheduled to be a short trial and most
of the witnesses were law enforcement officers. We find the trial court acted within its
discretion and defendant’s constitutional rights were not violated.
       Penal Code3 section 1050 governs continuances. The moving party must be able
to show good cause for the continuance. (§ 1050, subd. (d).) Due diligence must be
shown in order to meet the requirement of good cause. (See People v. Jenkins (2000)
22 Cal.4th 900, 958.) On appeal, “[t]he trial court’s denial of a motion for continuance is




3      Undesignated statutory references are to the Penal Code.

                                             10
reviewed for abuse of discretion.” (Id. at p. 1037.) The case of People v. Courts (1985)
37 Cal.3d 784 is an example of good cause and due diligence.
       In Courts, our Supreme Court ruled the trial court should have granted the
defendant’s request for a continuance. In reaching its decision, the court found the
defendant was already in contact with the new attorney he wanted to hire, had made final
arrangements, and had already paid a retainer. (See People v. Courts, supra, 37 Cal.3d at
pp. 787-788, 791-792, 796.) Thus, the Court found, the defendant “took reasonable and
timely steps to create a relationship with private counsel. His representatives attempted
to protect that relationship by moving for a continuance. Thus, the state’s interest in
ensuring an expeditious resolution of the case became far less compelling.” (Courts, at
p. 794.)
       Here, defendant did not show he acted with due diligence. Defendant had been
out of custody for months prior to trial. A week prior to trial, defendant said he had no
money to retain private counsel. Defendant appeared at the trial readiness conference and
indicated he was ready to proceed to trial. It was not until the first day of trial that
defendant informed the court he had sufficient money to make a “down payment” on a
private attorney. Defendant had not actually hired an attorney, had not actually met with
an attorney, and was not even certain which attorney he would be hiring.
       The jury panel was waiting in the courthouse; the court, appointed counsel, and
the prosecution were ready to proceed. Without having a retained attorney ready, like in
Courts, or even giving the court an indication he could fund his defense rather than just
make a “down payment,” defendant failed to show he had been diligent in hiring private
counsel. Moreover, because defendant had no relationship with private counsel to
protect, the state’s interest in moving forward with the case was not diminished as it was
in Courts. (People v. Courts, supra, 37 Cal.3d at p. 794.) Thus, contrary to defendant’s
argument, there was no requirement for the court to find the delay would have
“significantly inconvenienced the court or the parties” in order to deny his request.

                                              11
       Defendant failed to meet his burden of proof to show good cause for a
continuance. Accordingly, his contention is without merit.
                                              III
                Any Error In Admitting Irrelevant Evidence Was Harmless
       Defendant contends the trial court abused its discretion in admitting the following
evidence: (1) that he was on parole at the time he was stopped and his car searched;
(2) that he fought with correctional officers in the jail; and (3) that he surrendered the
plastic baggie he had hidden in his rectum. Defendant contends this evidence was more
prejudicial than probative.4 We conclude any error was harmless.
       The trial court has broad discretion to decide which evidence is relevant and
whether the probative value of the evidence outweighs its potential for prejudice.
(People v. Lomax (2010) 49 Cal.4th 530, 581; People v. Rodrigues (1994) 8 Cal.4th
1060, 1124.) However, the court has no discretion to admit irrelevant evidence.
(People v. Benavides (2005) 35 Cal.4th 69, 90.) Evidence is relevant if it has any
tendency in reason to prove a disputed point that is of consequence to deciding the action.
(Evid. Code, § 210.) We review the court’s evidentiary rulings for abuse of discretion.
(People v. Alvarez (1996) 14 Cal.4th 155, 201.) We will not reverse a trial court’s
erroneous evidentiary ruling if that error was harmless. (Chapman v. California (1967)
386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711] [“before a federal constitutional error can be
held harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt”]; People v. Watson (1956) 46 Cal.2d 818, 836 [before a state error can




4       Defendant makes reference to the evidence being “cumulative” of other, properly
admitted evidence. At trial, however, defendant did not object to any of this evidence as
“cumulative.” Accordingly, to the extent he is raising that issue on appeal, the issue is
forfeited. (People v. Demetrulias (2006) 39 Cal.4th 1, 21 [defendant forfeits argument on
appeal by failing to make a timely evidentiary objection on specific ground raised on
appeal].)

                                              12
be held harmless, the court must be able to declare that it is not “reasonably probable that
a result more favorable to the appealing party would have been reached in the absence of
the error”].)
       Defendant argues “the prejudicial impact of this evidence,” both cumulatively and
separately, resulted in a verdict that “likely reflected the jury’s fear of violent repeat
felons rather than an abiding conviction of [defendant]’s guilt beyond a reasonable
doubt.” We disagree.5
       With regard to defendant’s conviction for resisting an officer, defendant never
claimed he did not resist multiple peace officers as they tried to detain him. On the
contrary, his only defense was that the officers used excessive force by hitting him with a
baton, resulting in an open wound on his ankle. Thus, there is no reasonable possibility
or probability that excluding the evidence defendant was on parole when he was stopped,
later fought with peace officers at the jail, and had a plastic baggie hidden inside his
rectum would have resulted in a different verdict.
       On this record, there is no doubt the error was harmless under Chapman or
Watson. (Chapman v. California, supra, 386 U.S. at p. 24 [17 L.Ed.2d at pp. 710-711];
People v. Watson, supra, 46 Cal.2d at p. 836.)6




5       Because we reverse defendant’s conviction for transporting methamphetamine on
other grounds, we address this argument only as it relates to defendant’s conviction for
resisting a peace officer.
6       Defendant also contends that admission of this evidence violated his federal and
state constitutional rights to due process. Defendant did not, however, object to
admission of the evidence on these grounds at trial. Accordingly, he has not preserved
the claims for review. (People v. Earp (1999) 20 Cal.4th 826, 878.)

                                              13
                                               IV
  There Was Insufficient Evidence To Support Defendant’s Requested Jury Instruction
       Defendant was charged with misdemeanor resisting, delaying, or obstructing a
peace officer. Defendant requested the trial court instruct the jury with CALCRIM No.
2670, which provides in relevant part:
       “The People have the burden of proving beyond a reasonable doubt that
___________________ <insert name, excluding title> was lawfully performing (his/her)
duties as a peace officer. If the People have not met this burden, you must find the
defendant not guilty of ___________________ <insert name[s] of all offense[s] with
lawful performance as an element>.
       “A peace officer is not lawfully performing his or her duties if he or she is
(unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force
when making or attempting to make an otherwise lawful arrest or detention).
       “[¶] . . . [¶]
       “[Special rules control the use of force.]”
       The People argued there was no evidence the deputies used excessive force in
detaining defendant and the trial court agreed. Defendant contends the trial court’s ruling
was in error and denied him his state and federal due process rights to have the
prosecution prove every element of the charged offense beyond a reasonable doubt,
denied him the right to present a complete defense, and denied him the right to a fair jury
trial. We are not persuaded.
       A claim of instructional error is reviewed de novo. (People v. Guiuan (1998)
18 Cal.4th 558, 569-570.) “A trial court must give a requested instruction only if it is
supported by substantial evidence, that is, evidence sufficient to deserve jury
consideration.” (People v. Marshall (1997) 15 Cal.4th 1, 39.) “[U]nsupported theories
should not be presented to the jury.” (People v. Guiton (1993) 4 Cal.4th 1116, 1131; see
also Marshall, at p. 40 [quoting the same].)

                                               14
       We agree with the trial court that the record contains no evidence to support a
claim that Deputy Smetak used excessive force in detaining defendant. When Deputy
Solada asked defendant to get out of his car, defendant was “fidgety” and “a little
agitated.” When Solada asked defendant to put his hands on his head, defendant put
them on the roof of his car, then immediately reached for his pockets. When two
deputies tried to handcuff defendant, defendant fought them so hard, a third deputy had to
intervene. The three were able to get defendant on the ground, but he continued to fight
with them; they were unable to handcuff him. Defendant continued fighting with the
deputies despite their repeated demands that he comply.
       Still on the ground, defendant began kicking at Solada and Staup; only then did
Smetak take out his baton. Smetak struck defendant twice on his calves. Smetak stopped
to determine whether those strikes were effective in subduing defendant; they were not,
so he struck defendant a third time, this time on the ankle. Only then did defendant
comply sufficiently with the officers’ instructions that they were able to handcuff him.
       At trial, Smetak testified he used the baton in the manner he was taught, and the
baton was the least force necessary to subdue defendant. Defendant offered no evidence
to the contrary. An officer may use reasonable force to overcome resistance to an arrest.
(People v. Curtis (1969) 70 Cal.2d 347, 356-357.) Accordingly, on this record, we agree
with the trial court: there was no evidence that Smetak used anything other than
reasonable force when trying to subdue defendant. There was no error.
                                      DISPOSITION
       The judgment is reversed as to the conviction for unlawfully transporting
methamphetamine. The judgment regarding sentencing also is vacated, and the matter is
remanded to the trial court for resentencing in accordance with this opinion. The trial
court is directed to obtain a current probation report that includes information about
defendant’s conduct while incarcerated during the pendency of this appeal.
       In all other respects, the judgment is affirmed.

                                             15
                            ROBIE   , J.



We concur:



     RAYE    , P. J.



     BUTZ    , J.




                       16
