Filed 8/27/15 P. v. Deloney CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F067499
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. F12910092)
                   v.

GEORGE ANTHONY LUTHER DELONEY,                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Houry A.
Sanderson, Judge.

         Jennifer A. Mannix, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Robert Gezi and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
                                                INTRODUCTION
         Defendant George Anthony Luther Deloney was convicted of false imprisonment
and resisting an officer following an altercation with his girlfriend. After denying his
motion made pursuant to People v. Superior Court (Romero) 13 Cal.4th 497 (Romero),
the court sentenced defendant to a total of six years four months.
       On appeal, defendant asks this court to conduct an independent review of the
materials provided for in camera inspection following his Pitchess motion (see Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess)). Additionally, he argues the trial
court erred by failing to sua sponte instruct on Penal Code1 section 148, subdivision (a), a
lesser included offense of section 69, and by denying his motion to strike the prior
conviction. We will affirm.
                             BRIEF FACTUAL BACKGROUND
The People’s Case
       Two 911 callers reported a domestic dispute between a man and woman walking
in the area of Cedar and Dakota Avenues on the evening of December 16, 2012. Both
callers indicated the man was hitting the woman, pulling her arm, and forcing her along.
Police were dispatched to the scene.
       Officers Jason Hurley and Patrice Sellars-Anderson arrived separately soon
thereafter and observed defendant pulling Angela Guajardo down the sidewalk. Guajardo
was trying to get away from defendant. Defendant released his hold on Guajardo once he
realized patrol cars were present. Hurley stepped out and directed defendant to place his
hands on the patrol car. Defendant refused, saying “fuck you, bitch ass nigga. I’m not
doing anything you say.… You got nothing on me.” Defendant was aggressive and
began walking toward Officer Hurley. Hurley ordered defendant to the ground, however,
defendant refused to comply with the officer’s command. Defendant continued to walk
toward the officer, stopping only when his chest touched the officer’s outstretched left
hand. During his approach, defendant continued to say “bitch ass nigga over and over”;
he remained aggressive and noncompliant.




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

                                                 2.
       Once defendant’s chest touched Hurley’s hand, Hurley placed defendant in a
twist-lock control hold. While it limited defendant’s movement, it did not allow Hurley
complete control over defendant. Despite the hold technique, defendant refused Hurley’s
commands to lean over the hood of the patrol car and instead pushed back against Hurley.
Eventually, Sellars-Anderson was able to assist and defendant was placed in handcuffs.
Defendant continued to make threatening comments: “I’m going to fuck you up … as
soon as we’re done here I’m going to fuck you up, bitch ass nigga.”
       On arriving at the scene, Officer Sellars-Anderson went after Guajardo, who had
run away from defendant when he released his hold on her upon the officers’ approach.
Guajardo was crying and upset, but eventually agreed to speak with Sellars-Anderson,
waiting in the patrol car briefly when Sellars-Anderson went to assist Hurley with
defendant. Guajardo reported she had been dating defendant for about a year. She was
terrified of him and indicated he had threatened to kill her before.
       On this particular occasion, Guajardo wished to spend time with her mother as her
brother had been shot earlier, however, defendant refused to let her go. She was trying to
get away from him. Guajardo had no visible injuries and commented to the officer that
defendant was “smarter than that.” Guajardo asked Sellars-Anderson to let her go
because she feared defendant would kill her when he was released from jail. Guajardo
stated she loved defendant but was terrified of him. Sellars-Anderson detected alcohol on
Guajardo’s breath, but the woman was able to carry on a conversation and she did not
exhibit the signs of impaired intoxication.
       During transport to the identification bureau via Hurley’s patrol car, defendant
continued to use profanity and make threats: “you’re going to get your bitch ass smoked,”
and “I’m going to fuck your wife in the ass so keep checking her ass to see if it’s
stretched out.” Hurley was greatly concerned by defendant’s threats. While being
escorted into a cell during the booking process, defendant stopped and faced Hurley,
“pumping … his body” as if to hit Hurley.



                                              3.
       Guajardo was unavailable as a witness at trial. As a result, the testimony she gave
at the preliminary hearing was read into the record. Specifically, Guajardo testified she
was involved in a romantic relationship with defendant. On the night of the incident, she
had been drinking at home with defendant. She left home to go to Me ’n Ed’s Victory
Grill and ordered a drink there. She did not remember leaving the restaurant. She
recalled “snapp[ing] out of it” while in the back of a patrol car and the officers speaking
to defendant. The next recollection she had was waking up at home the following
morning. Guajardo did not recall giving a statement to a female police officer nor
making any particular statements about defendant to the officer.
       On cross-examination, Guajardo indicated she had consumed about a half bottle of
a hard liquor at home before walking to the restaurant and drinking a Long Island Iced
Tea. She had little memory of that night. She did not suffer any injuries and she was not
afraid of defendant. She did not recall speaking with an officer, male or female, nor did
she remember speaking to a security guard.
       On redirect examination, Guajardo admitted not knowing for certain whether
defendant assaulted her, but she assumed not because she did not have a black eye or
bruises. Moreover, she knew defendant would not hit her because they had been together
for more than a year.
       Bob Meade testified as an expert on the subject of domestic violence. In relevant
part, Meade testified fear often causes a victim of domestic violence to recant earlier
statements or claim an inability to remember events.
The Defense Case
       Defendant testified in his own behalf.
       On December 16, 2012, defendant and Guajardo shared a bottle of Christian
Brothers brandy at home while watching a football game. At half time, they walked to
the Me ’n Ed’s Victory Grill to watch the second half of the game. Defendant did not
drink at the bar, but Guajardo had a Long Island Iced Tea. After the game was over, they
left the bar and began walking home, however the “alcohol started to kick in” for

                                             4.
Guajardo then. She was “[s]tumbling drunk” and had he not “redirected her,” she would
have walked into traffic. Near the Panda Express, Guajardo staggered then fell to the
ground. He picked her up and moved her over to a walkway to “try to wake her up.” She
was out of it so he “shook her up a little bit” and “[s]lapped her face.” She did not
respond immediately and was out for about five minutes. Eventually she came to, but she
acted as if she had not “blacked out.” They decided to head to a nearby smoke shop, but
Guajardo pulled her hand out of his when she noticed a security guard nearby. Defendant
told the security guard to leave because he was “staring at [them] like [they] were a circus
act.” As defendant did so, Guajardo “took off running.”
       Defendant did not chase Guajardo but watched her walk along Dakota Avenue.
Eventually, the two crossed paths near the McDonald’s on their way home. They did not
get far, however, before an officer pulled up. The officer jumped out of his car “with his
gun out” and ordered defendant to the ground. Defendant did not comply, but he did tell
the officer he was not on parole or probation and asked the officer what was going on.
The officer approached, continuing to direct defendant to get on the ground. Defendant
continued to ask what the problem was because he knew he had not done anything
wrong. Eventually the officer convinced defendant he would tell him the reason for the
stop if defendant accompanied him to the patrol car. Defendant did so and denied
arguing with the officer in any way. The officer handcuffed defendant but refused to
answer defendant’s inquiries. Defendant was placed in the patrol car, but never lunged,
punched, or kicked at the officer. He did not “exchange words” with the officer. He also
denied saying anything about the officer’s wife.
       On cross-examination, defendant denied arguing with Guajardo. He denied
pulling her hair. Defendant disputed the testimony of Hurley and Sellars-Anderson that
upon their arrival at the scene they observed him pulling Guajardo’s hair. He also
testified Sellars-Anderson did not help Hurley handcuff him. Defendant never said,
“Fuck you bitch ass nigga” or directed similar sentiments to Hurley. Defendant believes
Hurley made up the other remarks and attributed them to him. Defendant did admit to

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calling Hurley a “bitch” while he was being transported for booking because he was
angry. Finally, defendant does not recall an altercation with Hurley during the booking
process.
The People’s Rebuttal
       Officer Hurley testified on rebuttal. He denied drawing his firearm on the night in
question. His gun, baton and Taser were all available to him on his duty belt, but he did
not pull any of them. Further, Hurley denied approaching defendant as defendant
described.
                                      DISCUSSION
Independent Review of the In Camera Proceedings
       In response to defendant’s Pitchess motion, the trial court conducted an in camera
review of Officer Hurley’s personnel file. It ordered the release of the name and contact
information of a complaining party in a single case. On appeal, defendant asks us to
review the trial court’s findings de novo.
       A trial court has broad discretion in ruling on both the good cause and disclosure
components of a Pitchess motion, and its ruling will not be disturbed absent an abuse of
that discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039; Haggerty v.
Superior Court (2004) 117 Cal.App.4th 1079, 1086; People v. Hughes (2002) 27 Cal.4th
287, 330.) We have reviewed the sealed transcript and accompanying documents and we
conclude the trial court’s ruling was not an abuse of discretion. (See People v. Mooc
(2001) 26 Cal.4th 1216, 1229-1232.)
Trial Court’s Duty to Instruct Regarding Section 148, subdivision (a)
       Defendant maintains the trial court committed prejudicial error when it failed to
sua sponte instruct the jury on section 148, subdivision (a) as a lesser included offense to
section 69.
       Section 69 can be violated two ways. The first is when a defendant “attempts, by
means of any threat or violence, to deter or prevent an executive officer from performing
any duty imposed upon such officer by law.” (§ 69.) The second way is when the

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defendant “knowingly resists, by the use of force or violence, such officer, in the
performance of his duty.” (§ 69.)
       Section 148 is violated when the defendant “willfully resists, delays, or obstructs
any … peace officer … in the discharge or attempt to discharge any duty of his or her
office or employment.” (§ 148, subd. (a)(1).) Unlike section 69, section 148 does not
include the element of the use of force or violence.
       Section 148 is not a necessarily lesser included offense of the first way to violate
section 69: attempting to deter, by threat or violence, an officer from performing his or
her executive duty. (People v. Smith (2013) 57 Cal.4th 232, 243.) That said, section 148
is a lesser included offense of the second way to violate section 69: knowingly resisting,
by force or violence, an officer who is performing his or her duty. (Smith, at p. 241.)
       Trial courts have a sua sponte duty to instruct on a lesser included offense when
there is substantial evidence the defendant is guilty of the lesser offense but not the
greater. (People v. Smith, supra, 57 Cal.4th at pp. 239–240.) “‘“Substantial evidence” in
this context is “‘evidence from which a jury composed of reasonable [persons] could …
conclude[]’” that the lesser offense, but not the greater, was committed. [Citations.]’”
(People v. Manriquez (2005) 37 Cal.4th 547, 584.) We review de novo whether an
instruction on a lesser included offense was required. (Ibid.)
       In this case, the information alleged both ways of violating section 69:

       “On or about December 16, 2012, in the above named judicial district, the
       crime of RESISTING EXECUTIVE OFFICER, in violation of …
       SECTION 69, a felony, was committed by [defendant], who did unlawfully
       attempt by means of threats or violence to deter or prevent Jason Hurley,
       who was then and there an executive officer, from performing a duty
       imposed upon such officer by law, and did knowingly resist by the use of
       force or violence said executive officer in the performance of his/her duty.”
       Defendant requested the jury be instructed with CALCRIM Nos. 2651 (Trying to
Prevent an Executive Officer From Performing Duty) and 2652 (Resisting an Executive
Officer in Performance of Duty). The People requested CALCRIM Nos. 2650
(Threatening a Public Official), 2651, and 2652. Neither party requested CALCRIM

                                              7.
No. 2656. Subsequently, the People withdrew their requests for CALCRIM Nos. 2650
and 2652. Both parties agreed to the giving of CALCRIM No. 2651 as modified by the
court. Ultimately, the jury was instructed pursuant to CALCRIM No. 2651.
       Defendant contends “substantial evidence supported the lesser included offense of
delaying, obstructing, or resisting arrest at the time Officer Hurley was engaged in his
duties,” therefore, the trial court had a duty to instruct on the lesser included offense of
resisting arrest. We disagree. Even assuming the People had not withdrawn the request
for CALCRIM No. 2652, and had argued defendant was guilty of resisting an executive
officer in performance of his duty, the trial court did not have a duty to instruct the jury in
that regard.
       A trial court is required to sua sponte instruct the jury regarding section 148 as a
lesser included offense of section 69 if the evidence indicates the defendant was not
guilty of the greater offense. (People v. Manriquez, supra, 37 Cal.4th at p. 584.) Here,
however, there is more than substantial evidence defendant committed the greater crime
of resisting, deterring or preventing Officer Hurley, by way of threat or violence, from
the performance of his duties. (People v. Smith, supra, 57 Cal.4th at p. 245.)
       Hurley testified defendant was noncompliant upon the officers’ arrival on scene.
Additionally, he was confrontational and aggressive. Despite being ordered to get on the
ground, defendant approached Hurley in a threatening manner. He repeatedly verbally
threatened Hurley, calling him a “bitch ass nigga.” Defendant approached Hurley,
touching his chest to Hurley’s outstretched left hand, as he made his various verbal
threats. Once Hurley was able to get defendant into a control hold, defendant threatened
to “fuck [Hurley] up.” The threats did not cease once defendant was secured in the back
of the patrol car and taken for booking. In fact, the threats became more personal as
defendant threatened to kill Hurley and sexually assault his wife. At the booking facility,
before being placed in a cell, defendant turned toward Hurley and moved as if to strike
him.



                                              8.
       Moreover, Officer Sellars-Anderson testified defendant was “being very verbally
abusive towards [her] partner and telling him to fuck off, that [the police] couldn’t stop
him.” Sellars-Anderson assisted Hurley in handcuffing defendant because he was
noncompliant and struggling with Hurley.
       The record reflects that “if appellant resisted the officers at all, he did so
forcefully, thereby ensuring no reasonable jury could have concluded he violated section
148, subdivision (a)(1) but not section 69.” (People v. Carrasco (2008) 163 Cal.App.4th
978, 985.)
       Based upon the evidence elicited at trial, no reasonable juror would conclude only
the lesser but not the greater offense alleged had been committed. Hence, the trial court
did not err by failing to instruct the jury with CALCRIM No. 2652.
The Denial of Defendant’s Romero Motion
       Finally, defendant contends the trial court abused its discretion when it denied his
request to strike a prior first degree burglary conviction pursuant to Romero because his
current conviction puts him outside the spirit of the three strikes law. We do not agree
and find no abuse of discretion.
       Section 1385 authorizes trial courts to strike prior felony conviction allegations in
cases brought under the three strikes law if doing so will further the interests of justice.
(§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529–530.) A request for this type of
leniency is commonly referred to as a “Romero motion,” although defendants do not
actually have a right to make motions under section 1385, subdivision (a). (People v.
Carmony (2004) 33 Cal.4th 367, 375, 379.)
       The statutory scheme of the three strikes law “not only establishes a sentencing
norm, it carefully circumscribes the trial court’s power to depart from this norm and
requires the court to explicitly justify its decision to do so. In doing so, the law creates a
strong presumption that any sentence that conforms to these sentencing norms is both
rational and proper.” (People v. Carmony, supra, 33 Cal.4th at p. 378.) When presented
with a Romero motion, the trial court “must consider whether, in light of the nature and

                                               9.
circumstances of his present felonies and prior serious and/or violent felony convictions,
and the particulars of his background, character, and prospects, the defendant may be
deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as
though he had not previously been convicted of one or more serious and/or violent
felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The refusal to strike a prior
conviction is reviewed for abuse of discretion, which will only be found in
“extraordinary” cases where the trial court’s decision “is so irrational or arbitrary that no
reasonable person could agree with it.” (People v. Carmony, supra, 33 Cal.4th at pp.
377–378.)
       At sentencing, after acknowledging it had read the parties’ pleadings, the
probation report, and the various letters in support, the court made the following
comments:

               “All right. The Court has reviewed the Romero motion that has been
       filed on behalf of [defendant]. And even without the additional information
       that [the prosecutor] commented on moments ago, I have to follow the
       existing law and the existing line of cases that refer to the discretion that the
       court holds in deciding when a candidate is appropriate candidate to be
       granted the benefits of a Romero motion. A Romero motion is not one that
       is casually reviewed and casually given because a person wants it or says
       they should have it. There has to be justification that a person is deserving
       because of certain guidelines that they have stayed clear of any criminality.
       That they have reformed. That they have benefited from the services that
       they have previously been given. That their criminal history is not such
       where they continue to be a menace in society. That, in fact, the current
       offense is not one where the Court finds it to be the type that continues to
       show heightened and continued criminality.

               “As the probation officer at page six of the report indicates that in
       this particular case [defendant] was physically assaultive towards his
       girlfriend causing her fear for her life at that time. Then he turned that
       aggression towards an officer who had been contacted by not one, but more
       than one—as many as two, possibly even three civilians driving down the
       street. Generally, civilians are unlikely to get engaged in other people’s
       pedestrian behavior unless it appears to be the kind that was observed by
       these various civilians on that day. And these calls came in independent of
       one another. They’re not like two or three same group people calling at the
       same time. Independent people, non-related to either side.

                                             10.
              “So the Court cannot in this instance find that [defendant] is a good
       candidate for a grant of probation. He had been in violation of his prison
       commitment on the prior occasions. On at least two occasions he was
       returned to serve out his term. He does not take obvious responsibility for
       his crimes. And it certainly is disturbing to the Court that during the in-
       progress portion of this case [defendant] was apparently in communication
       with the alleged victim in this case. But as I said at the beginning, set aside
       any of that information, based on his history alone, his current offense, this
       Court does not find grounds to give him the benefit of Romero. The
       request for Romero is, therefore, rejected and denied.”
       In light of defendant’s criminal background and the circumstances surrounding the
present crimes, there is nothing in the record demonstrating “‘“articulable reasons which
can withstand scrutiny for abuse”’” why defendant should fall outside the three strikes
scheme. (People v. Carmony, supra, 33 Cal.4th at p. 377.) As specifically noted by the
trial court, defendant’s present offenses involved assaultive behavior toward his girlfriend
and aggressive behavior toward Officer Hurley. This, in combination with his prior
parole violations, failure to accept responsibility for his actions, and communications
with his victim while he was incarcerated—in violation of the emergency protective
order—meant defendant was not entitled to the court’s exercise of discretion in that
regard.
       In sum, the court did not abuse its discretion.
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
LEVY, Acting P.J.


 ________________________________
DETJEN, J.


                                             11.
