People v. Jones CA2/4

Filed 12/12/22 P. v. Jones 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B311533
(Los Angeles County
Plaintiff and Respondent, Super. Ct. No. MA076067)

v.

DANIEL PAUL JONES,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa Mangay Chung and Daviann L.
Mitchell, Judges. Affirmed.
Aurora Elizabeth Bewicke, under appointment by the
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and J.
Michael Lehmann, Deputy Attorneys General, for Plaintiff
and Respondent.

_________________________________________

INTRODUCTION
While serving a life sentence for murder and other
offenses, appellant Daniel Paul Jones bit a correctional
officer’s hand during a struggle with several officers who
were trying to restrain him in order to search his cell for
contraband. A jury found appellant guilty of one count of
battery on a non-confined person by a prisoner, and he
received a third-strike sentence of 25 years to life in prison.
On appeal, appellant challenges both his conviction
and his sentence. Initially, he asks that we review the
sealed transcript containing the trial court’s review of
correctional officer personnel files performed under Pitchess
v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
Additionally, he asserts the trial court erred in: (1) excluding
proffered testimony regarding certain officers’ prior
misconduct; (2) denying a mid-trial continuance to allow him
to secure the presence of certain witnesses; and (3) refusing
to instruct the jury on excessive force and self-defense. He
further contends the cumulative prejudicial effect of these
alleged errors warrants reversal. As for his sentence,
appellant contends the court abused its discretion in denying
in part his motion under People v. Superior Court (Romero)
(1996) 13 Cal.4th 497 (Romero) to strike his prior strike
convictions. Alternatively, he maintains his sentence is

2
unconstitutionally excessive. As explained below, we find no
reversible error and therefore affirm.

BACKGROUND
A. The Information
The Los Angeles County District Attorney’s Office
charged appellant with three counts of battery on a
non-confined person by a prisoner (Pen. Code, § 4501.5),
naming correctional officers Miguel Enriquez, Felipe
Carreon, and Rolando Rosas as the respective victims. It
further charged appellant with one count of custodial
possession of a weapon (id., § 4502, subd. (a)). The
information also alleged that appellant had suffered four
prior convictions qualifying as strikes under the “Three
Strikes” Law (id., §§ 667, subds. (b)-(i), 1170.12, subds. (a)-
(d)), and that one of those convictions was for murder
(§§ 667, subd. (e)(2)(C)(iv)(IV) & 1170.12, subd.
(c)(2)(C)(iv)(IV)).

B. The Evidence at Trial
1. The Prosecution’s Case
The prosecution called several correctional officers,
including Officers Enriquez, Rosas, and Carreon, and they
testified to the following. Appellant was an inmate at
California State Prison, Los Angeles County. On January
30, 2019, Sergeant Bryan Perez received information that
appellant was suspected of smuggling narcotics through the
mail, and that this contraband could be in his cell. Sergeant

3
Perez provided the information to Officer Ernest Gollette
and instructed him to have appellant’s cell searched. Officer
Gollette asked Officers Enriquez and Carreon to assist him.
The officers proceeded to the area of appellant’s cell
and located him outside the supply room, which was on the
upper tier. Officers Gollette and Carreon approached
appellant, while Officer Enriquez trailed behind, instructing
other inmates to return to their cells. Officer Gollette
ordered appellant to put his hands behind his back so the
officer could place him in handcuffs. Appellant said, “Okay,”
but did not comply, and instead attempted to go into the
supply room.
Officer Gollette grabbed appellant’s arm, but appellant
tried to break away by twisting and turning his body, while
the officers repeatedly instructed him to stop resisting and
allow them to cuff him. Officer Carreon approached to assist
and attempted to restrain appellant. Officer Enriquez also
arrived to assist, and after unsuccessfully attempting to
bring appellant’s arm behind his back, pushed appellant
down from his shoulders in order to get him on the ground,
which was safer. Appellant fell forward and his head hit the
ground, but he continued to resist the officers.
Officers Rolando Rosas and Sisak Sam Misirian joined
in to help restrain appellant. As the struggle continued,
appellant struck the three officers named in the information
in various ways. As he twisted on the floor, appellant began
kicking his legs wildly in all directions, eventually hitting
Officer Rosas’s leg. Officer Enriquez held onto appellant’s
right hand just below appellant’s head, when appellant

4
tucked in his chin and bit Officer Enriquez’s right hand,
leaving a bite mark. Finally, appellant was moving his head
up and down, and as he moved it up again, the back of his
head hit Officer Carreon’s nose.
Ultimately, the officers succeeded in pulling appellant’s
arms behind his back. Officer Gollette placed handcuffs on
appellant’s wrists, and Officer Misirian placed restraints on
his legs. Officer David Montoya then searched appellant’s
cell and discovered a manufactured weapon inside his
mattress.
At trial, Sergeant Christopher Geiwitz testified as an
expert on correctional officers’ use of force. Sergeant Geiwitz
testified that in normal circumstances, officers are not
allowed to touch inmates. He explained that when dealing
with resisting inmates, officers are trained to handle the
incident as quickly as possible, with minimal reliance on the
use of force. When asked about the procedures surrounding
the search of an inmate’s cell, Sergeant Geiwitz testified that
the inmate is removed from his cell and placed in handcuffs
for the search to take place.

2. The Defense’s Case
The defense called or recalled several officers,
including Officer Carreon.1 As relevant here, when
appellant’s counsel asked Officer Carreon if either he or

1 Appellant represented himself through most of the trial,
but ultimately allowed his standby counsel to assume his
representation during the defense case. Appellant did not testify.

5
Officer Gollette announced their presence before “getting to
[appellant],” the officer replied that they did not. Officer
Carreon also testified, however, that either he or Officer
Gollette had asked appellant to approach them or otherwise
addressed him before Officer Gollette grabbed appellant’s
arm. After refreshing his recollection with his written
report, Officer Carreon testified that before grabbing
appellant, Officer Gollette had told appellant to turn around
and submit to handcuffs.
After Officer Carreon testified that he had not seen any
contraband on appellant during the incident, appellant’s
counsel confronted him with his preliminary hearing
testimony, in which he stated that after Officer Gollette
grabbed appellant’s arm, appellant tried to put “some pieces”
into his mouth. Officer Carreon did not recall saying this,
but did not dispute that this was his prior testimony, and
could not explain the difference between that testimony and
his current one. Similarly, Officer Carreon testified in
response to questioning that from the time appellant fell to
the ground until he was handcuffed, appellant never got on
his knees. But he confirmed that at the preliminary
hearing, he testified that appellant’s head struck his nose
after appellant “f[ell] to his knees.”

C. The Jury’s Verdict and the Trial Court’s Sentence
Following trial, the jury found appellant guilty of one
battery charge, relating to the biting of Officer Enriquez, and
acquitted him of the weapon-possession charge. The jury
was unable to reach verdicts on the charges relating to

6
Officers Rosas and Carreon, and the trial court declared a
mistrial as to those counts and later granted the
prosecution’s motion to dismiss them.
At a bifurcated proceeding, appellant admitted the
prior strike allegations. At sentencing, the trial court
granted in part appellant’s Romero motion, striking two of
his prior strikes and declining to strike the remaining two,
including the murder conviction. The court then sentenced
appellant to 25 years to life in prison under the Three
Strikes Law. Appellant timely appealed.

DISCUSSION
A. Ruling on Pitchess Motion
Initially, appellant asks that we review the sealed
record of the trial court’s in-camera Pitchess proceeding for
any error. The Attorney General does not object and, having
done so, we discern no error.

1. Background
Before trial, appellant, who was then representing
himself, filed a Pitchess motion, seeking disclosure of
personnel records concerning Officers Gollette, Carreon,
Enriquez, Rosas, and Montoya. In his accompanying
declaration, appellant asserted that the first four officers
used unnecessary and excessive force against him and later
filed a false report, and that Officer Montoya filed a false
report regarding his search of appellant’s cell. The court
found good cause to hold an in-camera hearing to review

7
responsive records for every officer except Officer Montoya.2
Following the in-camera hearing, the court ordered
disclosure of certain information to appellant’s
court-appointed investigator.

2. Analysis
A criminal defendant is entitled to the discovery of
confidential law enforcement personnel records if the
information contained therein is relevant to his ability to
defend against the charge. (Pitchess, supra, 11 Cal.3d at
537-538; Pen. Code, §§ 832.7, 832.8; Evid. Code, §§
1043-1045.) To obtain those records, the defendant must
submit an affidavit showing good cause for the discovery.
(Evid. Code, § 1043, subd. (b)(3).) Discoverable information
is “limited to instances of . . . misconduct related to the
misconduct asserted by the defendant.” (Warrick v. Superior
Court (2005) 35 Cal.4th 1011, 1021; see also California
Highway Patrol v. Superior Court (2000) 84 Cal.App.4th
1010, 1021 [“documentation of past officer misconduct which
is similar to the misconduct alleged by defendant in the
pending litigation is relevant and therefore subject to
discovery” (italics omitted)].)
“‘When a defendant shows good cause for the discovery
of information in an officer’s personnel records, the trial
court must examine the records . . . to determine if any
information should be disclosed.’” (People v. Anderson (2018)

2 Appellant does not challenge the court’s decision not to
review Officer Montoya’s personnel records.

8
5 Cal.5th 372, 391.) “‘[T]o protect the officer’s privacy, the
examination of documents and questioning of the custodian
should be done in camera . . . , and the transcript of the in
camera hearing and all copies of the documents should be
sealed.’” (Ibid.)
An appellate court examines the record made by the
trial court “to determine whether the trial court abused its
discretion in denying a defendant’s motion for disclosure of
. . . personnel records.” (People v. Prince (2007) 40 Cal.4th
1179, 1285; accord, People v. Samayoa (1997) 15 Cal.4th 795,
827 [“Trial courts are granted wide discretion when ruling
on motions to discover . . . officer personnel records”].) At
appellant’s request, we have reviewed the sealed transcript
of the in-camera hearing and conclude that the trial court
did not abuse its discretion in determining what information
was discoverable.3

B. Challenges to the Conviction
Appellant mounts several challenges to his conviction,
arguing the court erred in: (1) excluding proffered testimony
regarding the officers’ prior misconduct; (2) denying a mid-

3 Appellant urges us to consider changes to disclosure law
made by the recently enacted Senate Bill No. 16 (2020-2021 Reg.
Sess.; SB 16.), which he contends applies retroactively to his case.
Among other changes, SB 16 removed a statutory time limit on
incidents subject to disclosure. (Legis. Counsel’s Dig., Sen. Bill
No. 16.) We need not decide whether SB 16 applies retroactively,
as it would not affect our conclusion regarding the trial court’s
ruling on appellant’s disclosure request.

9
trial continuance to allow him to secure the presence of
certain witnesses; and (3) refusing to instruct the jury on
excessive force and self-defense. He further contends the
cumulative prejudicial effect of these alleged errors warrants
reversal. As explained below, we find no reversible error.

1. The Exclusion of Proffered Testimony regarding
the Officers’ Alleged Prior Misconduct
a. Background
After appellant’s investigator received the
court-ordered disclosure of certain information regarding
prior incidents involving the officers, appellant provided
witness statements for four witnesses: state prison inmates
Horatio Kimbrough, Rigoberto Salido, James Fisher, and
Lawrence Jones.4 Kimbrough, Salido, and Lawrence’s
proposed testimony concerned allegations of prior instances
of misconduct involving Officer Gollette, whereas Fisher’s
proposed testimony related to allegations of prior misconduct
by Officer Enriquez. The prosecution filed a motion in
limine to exclude the proffered testimony, arguing that it
was unduly prejudicial.
Appellant opposed the prosecution’s motion. Initially,
he claimed in his written opposition that the proffered
testimony was necessary to support his theory of
self-defense, and would establish his reasonable fear of

4 Because appellant and Lawrence share a last name, we use
Lawrence’s first name to avoid confusion.

10
Officer Gollette. At the hearing on the motion, shortly before
the start of trial, appellant denied that he ever “struck,”
“harm[ed],” or even “resisted” the officers, but after the court
noted that these assertions did not support a claim of
self-defense, appellant reverted to claiming that he had
defended himself against the officers. Appellant told the
court that he wanted “to show that there’s an ongoing issue
with Gollette,” and suggested that the inmate witnesses’
testimony regarding specific instances of prior misconduct by
the officers was relevant to his state of mind.
In response to the court’s questioning regarding his
prior knowledge of the particular instances, appellant
related that at the time of his alleged crimes, he was aware
of Fisher’s allegations against Officer Enriquez, and had
personally spoken with Fisher about the relevant incident.
He was unaware of either Kimbrough’s incident with Officer
Gollette, or the incident involving Salido, which occurred
after appellant’s alleged offenses.
After the prosecutor argued that the proffered
testimony was inadmissible propensity evidence under
Evidence Code section 1101, the trial court noted that
Evidence Code section 1103 permitted the admission of
propensity evidence concerning the victim of the offense.
However, the court further observed that Officer Gollette,
the subject of proposed testimony by Kimbrough, Salido, and
Lawrence, was not a victim of any offense with which
appellant was charged.
As discussed further below, in response to the trial
court’s inquiry regarding the inmate witnesses’ availability,

11
appellant relayed that he had not sought removal orders to
secure their attendance.5 The court observed that the
prosecution’s motion could be moot if the witnesses were not
available to testify, but proceeded to consider the matter.
Following its discussion with the parties, the court
granted the motion to exclude the proffered testimony by
Kimbrough and Salido, reasoning that (1) this was
propensity evidence to which Evidence Code section 1103 did
not apply because it concerned a non-victim, and (2) their
testimony was not probative of appellant’s state of mind at
the time of his alleged offenses, as he was then unaware of
the incidents involving them. The court additionally invoked
Evidence Code section 352 as a basis to exclude the
testimony of these witnesses.
The court denied the motion as to Fisher, whose
proffered testimony both concerned a named victim (Officer
Enriquez) and was known to appellant at the time of his
alleged offenses. As to Lawrence, the court reserved its
ruling at appellant’s request, and stated that unless notified
otherwise, it would presume appellant did not intend to
present his testimony. Appellant never notified the court
that he intended to call Lawrence, and as discussed further
below, he never secured Fisher’s attendance at trial.
Subsequently, in discussing jury instructions with the court,
appellant’s counsel said he anticipated appellant would

5 As described below, the court and the prosecutor agreed
that once a removal order was delivered, it typically took three
weeks to bring the relevant inmate before the court.

12
testify that during the incident, appellant felt that he was
being choked, “which caused his body to instinctively move
in response to . . . the choking sensation.”

b. Analysis
The exclusion of the proposed testimony of Kimbrough
and Salido provides no basis for reversal. We review the
court’s evidentiary rulings for abuse of discretion. (People v.
Smithey (1999) 20 Cal.4th 936, 973.) “Specifically, we will
not disturb the trial court’s ruling ‘except on a showing the
trial court exercised its discretion in an arbitrary, capricious,
or patently absurd manner that resulted in a manifest
miscarriage of justice.’” (People v. Goldsmith (2022) 59
Cal.4th 258, 266.) A miscarriage of justice results only if “it
is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of
the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.)
Evidence Code section 1101 makes evidence of a
person’s character inadmissible when offered to prove his or
her conduct on a specified occasion. (Evid. Code, § 1101,
subd. (a).) Evidence Code section 1103, subdivision (a),
provides an exception to that rule, stating, “In a criminal
action, evidence of the character . . . of the victim of the
crime for which the defendant is being prosecuted is not
made inadmissible by Section 1101 if the evidence is: [¶] (1)
Offered by the defendant to prove conduct of the victim in
conformity with the character . . . .”
As the trial court noted, the proffered testimony
regarding specific incidents involving inmates Kimbrough

13
and Salido concerned Officer Gollette, who was not a victim
of the offenses with which appellant was charged. Thus,
Evidence Code section 1101 precluded use of their testimony
to establish that Officer Gollette used excessive force on
appellant, and the exception in Evidence Code section 1103
did not apply.
Further, as the trial court explained, the incidents
involving these two witnesses could not have affected
appellant’s state of mind at the time of the alleged offenses,
as he was unaware of the incident involving Kimbrough, and
the incident involving Salido had not yet occurred. (See
People v. Tafoya (2007) 42 Cal.4th 147, 165-166 [evidence
that person was dangerous was relevant to defendant’s claim
of self-defense only if defendant knew of person’s reputation
for dangerousness].)
To the extent appellant suggests he need not have had
prior knowledge of Kimbrough and Salido’s specific
allegations because they would have provided generalized
testimony regarding Officer Gollette’s violent reputation -- a
claim he did not make during his lengthy colloquy with the
trial court -- we need not decide the issue, as any error would
have been harmless. The record is undisputed that
appellant had done nothing to secure the witnesses’
attendance at trial. As noted, even as the trial was about to
commence, appellant had not initiated the process to obtain
removal orders for the inmate witnesses. Notably, appellant
never called Fisher, the inmate witness he was permitted to
call, and whose testimony concerned the victim of one of the
charged offenses.

14
 Moreover, under the theories appellant, and later, his
counsel, presented to the court, his state of mind as to
Officer Gollette was not central to the assessment of his
biting of Officer Enriquez. Appellant told the court that he
was “put in a chokehold and taken down to the ground,” and
that this was “where self-defense [came] in with Enriquez.”
Subsequently, appellant’s counsel told the court he
anticipated appellant would testify that during the incident,
he felt he was being choked, which caused him to
“instinctively move in response to . . . the choking sensation.”
If appellant had testified that he bit Officer Enriquez, either
as an involuntary reaction or in an effort to defend himself,
any claimed apprehension of Officer Gollette when the latter
grabbed his arm would have had little bearing on his defense
to the relevant biting charge.6 Accordingly, we find no
reversible error.7

6 Appellant complains that the trial court erroneously “ruled”
that he had not articulated a valid theory of self-defense. The
court made no such ruling. While the court remarked that
appellants’ assertions that he neither struck the officers nor
resisted them did not support a claim of self-defense, the
exclusion of the proffered testimony of Kimbrough and Salido was
not based on its assessment of appellant’s intended defense. As
noted, the court permitted appellant to call Fisher, whose
testimony was similarly intended to support appellant’s theory of
self-defense.
7 To the extent appellant purports to challenge the trial
court’s exclusion of the proffered testimony of Fisher and
Lawrence, he misreads the record. The court denied the motion
as to Fisher. As to Lawrence, at appellant’s request, the court
(Fn. is continued on the next page.)

15
 2. The Denial of a Mid-Trial Continuance
a. Background
On October 20, 2020, during the hearing on the
prosecution’s motion to exclude appellant’s proffered
witnesses, including Fisher, the trial court asked appellant if
those witnesses were available and if they had been
transferred to the county’s custody for the trial. Appellant
replied that he had the subpoenas with him. When the court
explained that the presence of prison inmates was secured
through removal orders rather than by subpoenas and asked
if the required process had taken place, appellant stated that
it had not. In response to the court’s inquiry, the courtroom
clerk stated that it would take at least 24 hours to get a
removal order to the relevant authority, but the prosecutor
confirmed the court’s belief that it typically took three weeks
to bring the inmate before the court. After the court ruled on
the prosecution’s motion, the parties proceeded to jury
selection.
On October 28, following the close of the prosecution’s
case-in-chief, the prosecutor informed the court that
although appellant had asked the prosecution to bring
Officer Gollette to court for appellant’s case, the officer was
not present because neither side had subpoenaed him. After
appellant, who was still representing himself, called and
examined three other officers, he informed the court that one

reserved a ruling pending further action by appellant, yet
appellant never raised the subject of Lawrence’s testimony again.

16
week earlier, he had prepared “subpoenas” for his
investigator to deliver, that his investigator had just
received them that day, and that he was “waiting on him.”
The court responded: “Well, that’s a problem ’cause my guess
is there’s no way he could have had [the witnesses] served
and here now. [¶]. . .[¶] . . . The court can’t interfere because
that’s not my place. You’re representing yourself. . . . [W]e
cannot delay the trial because it wasn’t until today that
you’re trying to serve your subpoenas.”
Shortly after this discussion, appellant asked for his
standby counsel to take over his representation. Counsel
then assumed appellant’s representation, calling and
questioning multiple witnesses. Neither Fisher nor Officer
Gollette testified. At sentencing, appellant’s counsel
mentioned that after he took over appellant’s representation,
he made no effort to call Officer Gollette. Counsel then
agreed with the court’s statement that the officer was
available, and that counsel “chose not to call him” because he
intended to point to the prosecution’s failure to call “the most
obvious person.”

b. Analysis
Construing the trial court’s statement that it would not
“delay the trial” as a denial of a continuance, we conclude
appellant has shown no reversible error. “‘A motion for
continuance should be granted only on a showing of good
cause. [Citation.]’ [Citation.] To support a continuance
motion to secure a witness’s attendance at trial, a showing of
good cause requires a demonstration, among other things,

17
that the defendant exercised due diligence to secure the
witness’s attendance.” (People v. Wilson (2005) 36 Cal.4th
309, 352 (Wilson).) A claim that the denial of a continuance
violated the defendant’s constitutional rights is subject to a
similar requirement. (See People v. Jenkins (2000) 22
Cal.4th 900, 1039-1040 [“if the defendant cannot show he or
she has been diligent in securing the attendance of
witnesses, . . . the court’s ruling denying a continuance does
not support a claim of error under the federal
Constitution”].) “The standard of review for a trial court’s
denial of a continuance motion is abuse of discretion.”
(Wilson, supra, at 352.)
Appellant contends a continuance was necessary for
him to call Fisher and Officer Gollette. It was appellant,
however, who failed to exercise due diligence in attempting
to secure Fisher’s attendance. The record does not reflect
that appellant ever initiated the process to have Fisher, a
state prison inmate, transported to the court. As the trial
court noted, securing a state inmate’s attendance required a
removal order. (See People v. Garcia (2008) 160 Cal.App.4th
124, 126 [“Under our law, a witness incarcerated in state
prison is brought to a criminal court to testify by means of a
removal order issued pursuant to Penal Code section 2621 or
1567”]; Sink, California Subpoena Handbook (Dec. 2022)
§ 2:2 [“The testimony of a state prisoner is obtainable only by
court order . . .; it is not obtainable by subpoena . . .”].) Yet
appellant reported only that he had prepared “subpoenas”
for his appointed investigator to deliver, and the record does

18
not reflect whether Fisher was even included in those
subpoenas.
Moreover, even assuming appellant’s documents
included a removal order for Fisher, he reported preparing
those documents one week before October 28, meaning after
the start of trial. This was a particularly late effort given
the potentially lengthy process required to bring a state
inmate before the court. Appellant faults “the difficulties
caused by the pandemic, the unavailability of [his] court-
appointed investigator, [and] the delayed release of witness
names” for his delay in attempting to secure Fisher’s
appearance at trial. But by his own admission, appellant
was aware of Fisher’s identity and his allegations against
Officer Enriquez long before the trial. Thus, appellant’s late
effort to secure Fisher’s attendance fell far short of
establishing due diligence. (See Wilson, supra, 36 Cal.4th at
352 [capital defendant did not exercise due diligence in
attempting to obtain impeachment witnesses for penalty
phase of trial where he failed to subpoena them despite
knowing about prosecution witnesses’ testimony long before
penalty phase]; People v. Lewis and Oliver (2006) 39 Cal.4th
970, 1035-1036 [defendant failed to show due diligence
where counsel had two years to prepare for trial and
announced ready for trial, but then requested continuance to
locate witness]; see also Levenson & Ricciardulli, Cal.
Criminal Procedure (The Rutter Group 2022) § 21:3
[“Waiting until the morning of trial to try to locate a witness
is not due diligence”].) To the extent appellant did not seek
to ensure Fisher’s attendance in a timely fashion because he

19
had been unaware of the necessary process, we note that
self-represented defendants are “held to the same standard
of knowledge of law and procedure as is an attorney.”
(People v. Clark (1990) 50 Cal.3d 583, 625.)
As for Officer Gollette, appellant’s counsel confirmed at
sentencing that after stepping in to represent appellant, he
chose not to call the officer for tactical reasons, though
counsel knew he was available. Because nothing precluded
appellant from calling Officer Gollette, he cannot establish
prejudice from the denial of a continuance, even assuming
any error. (See People v. Zapien (1993) 4 Cal.4th 929, 972
[denial of continuance not reversible absent prejudice to
defendant].)

3. The Denial of Instructions on Excessive Force
and Self-Defense
a. Background
While discussing jury instructions with the trial court
during appellant’s case-in-chief, appellant’s counsel asked
the court if it would instruct the jury with CALCRIM Nos.
2671 (Lawful Performance: Custodial Officer) and 3470
(Right to Self-Defense or Defense of Another

20
(Non-Homicide)) if appellant chose not to testify.8 The court
responded that it would not.9

8 CALCRIM No. 2671 provides: “The People have the burden
of proving beyond a reasonable doubt that [the custodial officer]
was lawfully performing (his/her) duties as a custodial officer. . . .
[¶] A custodial officer is not lawfully performing his or her duties
if he or she is using unreasonable or excessive force in his or her
duties. [¶] . . . [¶] If a custodial officer uses unreasonable or
excessive force while (restraining a person/ [or] overcoming a
person’s resistance . . .), that person may lawfully use reasonable
force to defend himself or herself.”
CALCRIM No. 3470 provides, in relevant part: “Self-
defense is a defense to .
The defendant is not guilty of [those crimes] if (he/she) used force
against the other person in lawful [self-defense]. The defendant
acted in lawful [self-defense] if: [¶] 1. The defendant reasonably
believed that (he/she . . .) was in imminent danger of suffering
bodily injury [or was in imminent danger of being touched
unlawfully]; [¶] 2. The defendant reasonably believed that the
immediate use of force was necessary to defend against that
danger; [¶] AND [¶] 3. The defendant used no more force than
was reasonably necessary to defend against that danger.”
9 In discussing appellant’s defense theory, his counsel told
the trial court that he anticipated appellant would testify that
“he never affirmatively tried to strike or headbutt or kick or bite
a corrections officer” but “was feeling pain, physical pain being
inflicted on him[,] as well as the possibility of being suffocated,
being choked, which caused his body to instinctively move in
response to the pain inflicted on him and the choking sensation.”
The court expressed doubt that self-defense would apply based on
this testimony, but said it would “look at it.” The court and the
parties proceeded to discuss the application of self-defense to
appellant’s anticipated testimony, after which the court stated it
did not believe the proffered testimony would support the
defense, but said it would “spend some time to review it.”

21
 After consulting with appellant, counsel informed the
court that appellant would not testify, but urged the court to
grant those instructions because “depending on how [the
jurors] interpret the testimony of the corrections officers,
they may feel that [appellant] was acting in self-defense and
that . . . the corrections officers were exceeding their lawful
performance.” The court denied counsel’s request, finding
that “there has not been substantial evidence to support that
the officers were doing anything other than acting in their
lawful performance of their duty that would warrant the
2671 instruction or . . . [that] there’s an issue of self-defense
. . . .” Subsequently, in instructing the jury on the elements
of battery on a non-confined person by a prisoner under
CALCRIM No. 2723, the trial court omitted a bracketed
portion of the instruction relating to correctional officers’ use
of excessive force.10

b. Analysis
The trial court correctly refused to instruct the jury on
self-defense and excessive force. “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,

10 The relevant omitted portion of CALCRIM No. 2723 states:
“A custodial officer is not lawfully performing his or her duties if
he or she is using unreasonable or excessive force in his or her
duties. . . .”

22
39-40.) “‘[U]nsupported theories should not be presented to
the jury.’” (Id. at 40.)
The evidence at appellant’s trial did not support
instructions on excessive force and self-defense. The officers
testified that after being tasked with searching appellant’s
cell, they located appellant by the supply room. Officer
Gollette instructed appellant to submit to handcuffs, which
was standard procedure when an inmate’s cell was searched.
When appellant did not comply and attempted to go into the
supply room, Officer Gollette grabbed his arm. Appellant
attempted to break away, twisting and turning his body,
despite the officers’ repeated instructions that he stop
resisting. Officer Enriquez then brought appellant to the
ground, as it was safer. Appellant’s head hit the ground, but
he continued to resist the officers. The officers continued to
try to restrain appellant, and Officer Enriquez was holding
appellant’s right hand close to appellant’s chin, when
appellant bit the officer’s hand.
Nothing in this evidence supported a claim of excessive
force on the officers’ part or provided a basis for a claim of
self-defense. There was no evidence that officers struck
appellant or employed any amount of force unnecessarily.
The evidence at trial showed only that the officers used
sufficient force to stop and restrain a resisting inmate, as
they were entitled to do. (Cf. Golick v. State of California
(2022) 82 Cal.App.5th 1127, 1138-1139 [“‘“the right to make
an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat
thereof to effect it.’” [Citation.] Thus, under California law,

23
a peace officer ‘“‘may use reasonable force to make an arrest,
prevent escape or overcome resistance, and need not desist
in the face of resistance’”’”]; Lawrence v. Kenosha County
(7th Cir. 2004) 391 F.3d 837, 843 [where plaintiff refused to
produce his driver’s license at officer’s request and his
vehicle was in motion as he argued with officer, it was not
excessive force for officer to grab plaintiff’s arm and attempt
to pull him out of vehicle].) Nothing in the facts presented at
trial could have justified appellant’s biting of Officer
Enriquez.
Appellant claims the evidence supported a finding that
the officers did not even announce their presence before
Officer Gollette “initiated the physical encounter” with him.
We disagree. In the testimony appellant cites, Officer
Carreon testified that neither he nor Officer Gollette
announced their presence before “getting to [appellant].”
Officer Carreon also testified that either he or Officer
Gollette had asked appellant to approach them or otherwise
addressed him before Officer Gollette grabbed his arm. And
after refreshing his recollection with his written report,
Officer Carreon testified that before taking hold of appellant,
Officer Gollette had told appellant to turn around and
submit to handcuffs. There was no support for a finding that
the officers had pounced on appellant without warning.
That Officer Carreon’s testimony differed in some respects
from his testimony at the preliminary hearing, as appellant
emphasizes, similarly fails to support a claim of excessive
force by the officers. (See People v. Ponce (1996) 44
Cal.App.4th 1380, 1389-1390 [inconsistencies in testimony of

24
victim or officers did not constitute substantial evidence that
defendant had been framed].) Accordingly, the trial court
did not err in refusing to instruct the jury on excessive force
and self-defense.11

C. Challenges to the Sentence
Challenging his third-strike sentence of 25 years to life,
appellant claims the trial court abused its discretion in
denying his Romero motion in part. Alternatively, he
contends his sentence is unconstitutionally excessive. As
explained below, we find no abuse of discretion in the trial
court’s refusal to strike two of appellant’s prior strikes, and
no constitutional infirmity in appellant’s sentence.

1. Background
In its sentencing memorandum, the prosecution noted
appellant was facing a mandatory third-strike sentence of 25
years to life, and argued that the circumstances warranted

11 Appellant mistakenly asserts that the trial court ruled it
would not instruct on self-defense unless he testified that his
movements during the incident were an intentional act of
defense. While expressing skepticism regarding the validity of
appellant’s proffered theory, the court said that it would consider
the issue, and made no final ruling whether appellant’s
anticipated testimony, as presented by counsel, would support a
self-defense instruction.
Because any error at appellant’s trial had no prejudicial
tendency, we need not address his additional contention that the
cumulative prejudicial effect of the errors requires reversal.

25
the application of the Three Strikes Law in his case.12 In
detailing appellant’s aggravating factors, the prosecution
noted his lengthy criminal history: alongside multiple
property offenses and parole violations, appellant committed
misdemeanor burglary and misdemeanor battery on a
domestic partner in 1999, three felony burglaries in 2000,
second degree murder in 2005 -- one month after he was
released from prison for prior offenses -- and firearm-related
offenses and resisting an officer in 2006. Appellant was
serving concurrent sentences of 48 years to life and 103
years to life at the time of his current offense. The
prosecution also pointed to appellant’s multiple disciplinary
violations during his current incarceration, which began in
2009. Finally, the prosecution asserted that while acting as
his own attorney, appellant made false statements to the
court when he stated that he never struck or used physical
force against any of the officers.
Attached as exhibits to the sentencing memorandum
were, inter alia, police reports and the appellate opinion
relating to appellant’s murder conviction. As relevant here,
the exhibits revealed that appellant was a member of a
White supremacist prison gang, and that before the murder,
the gang had deemed appellant’s victim a snitch and placed
a “hit” on him.

12 The prosecution later moved to dismiss appellant’s prior
strikes based on Los Angeles District Attorney’s Special Directive
20-08, but in response to the court’s inquiry, the prosecutor
stated there were no specific facts relating to appellant’s
background that would warrant striking his priors.

26
 Appellant’s counsel filed a Romero motion, asking the
court to strike his prior strikes because they were remote in
time. At the sentencing hearing, counsel highlighted
appellant’s relative youth at the time of his prior offenses --
appellant committed the felony burglaries when he was 19
years old, the murder when he was 23, and the
firearm-related offenses and resisting an officer when he was
25. Counsel also emphasized that appellant had caused
Officer Enriquez only a minor injury and argued that a
third-strike sentence would be unconstitutionally excessive.
The court granted appellant’s Romero motion in part,
striking two of the three felony burglaries, which were all
committed on the same day. However, the court declined to
strike the convictions for the remaining felony burglary and
the murder, finding that appellant was not outside the spirit
of the Three Strikes Law. Rejecting the notion that
appellant’s current offense was de minimis, the court
stressed the dangers involved in an inmate’s use of force
against officers, potentially drawing in other inmates and
officers and creating significant risks of injury to all
involved. The court then surveyed appellant’s criminal
history, noted the circumstances surrounding his
commission of murder in 2005, and stated that appellant
was precisely the kind of defendant for whom the Three
Strikes Law was designed.
During a colloquy with appellant’s counsel, who argued
the officers had instigated the incident, the court stated that
the jury had found the officers to have been engaged in a
lawful act at the time of the incident. The court also

27
expressed its view that at various times appellant had been
dishonest with the court, denying he ever resisted officers’
efforts to place him in handcuffs, stating he never “harmed”
any officer, and denying using physical force against the
officers. After denying appellant’s Romero motion in part,
the court imposed the mandatory third-strike sentence.

2. Analysis
a. Denial in Part of Romero Motion
The trial court acted within its discretion in denying in
part appellant’s Romero motion. A trial court abuses its
discretion by declining to strike a prior strike only if the
defendant so clearly falls outside the spirit of the three
strikes scheme that no reasonable person could disagree.
(See People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony
I).) Only extraordinary circumstances warrant a finding
that a defendant falls outside the spirit of the three strikes
scheme. (Ibid.) Accordingly, “the circumstances where no
reasonable people could disagree that the [defendant] falls
outside the spirit of the three strikes scheme must be even
more extraordinary.” (Id. at 378.)
The circumstances here were not so extraordinary.
Appellant had a lengthy criminal history that included both
property and violent offenses, with generally increasing
severity, as well as multiple parole violations. Just one
month after being released from custody for prior offenses,
appellant murdered a person targeted by appellant’s White
supremacist prison gang. While serving a life sentence for

28
this and other offenses, appellant committed multiple
disciplinary violations, as well as his present offense, in
which he bit a correctional officer attempting to restrain
him. Given these circumstances, the trial court reasonably
concluded appellant did not fall outside the spirit of the
three strikes scheme. (See Carmony I, supra, 33 Cal.4th at
376.)
Appellant contends the court erred in denying his
motion because it: (a) incorrectly stated that the jury found
the officers’ actions were lawful; (b) wrongly found that he
lied in claiming he never struck the officers; (c) improperly
relied on hearsay regarding his history of criminal and
wrongful conduct; and (d) failed to consider his youth at the
time of his prior offenses. We find none of these contentions
persuasive.
First, appellant notes that, contrary to the trial court’s
statement, the jury did not find that the officers’ actions
were lawful, as the jury was not asked to make any finding
on the issue of excessive force. But as discussed above, the
evidence did not support a finding that the officers used
excessive force against appellant. Appellant offers no
explanation how the court’s imprecise reference to a finding
by the jury might have prejudiced him under these
circumstances. (See People v. Mena (2012) 54 Cal.4th 146,
162 [no reversal absent showing that it is reasonably
probable more favorable result would have been obtained
absent error].)
Second, appellant asserts that, contrary to the trial
court’s finding, his repeated insistence that he never struck

29
any officer was proved true at trial. We disagree. As the
court noted, appellant had at various times denied any use of
force against the officers, denied “harm[ing]” any officer, and
denied resisting efforts to place him in handcuffs. Given the
jury’s finding that appellant assaulted Officer Enriquez, who
was attempting to restrain him, by biting the officer’s hand,
the court had ample basis to discredit appellant’s assertions.
Third, appellant claims the exhibits to the People’s
sentencing memorandum constituted hearsay and were thus
inadmissible. Initially, we observe that appellant did not
object to the relevant evidence below, and he therefore has
forfeited this claim on appeal. (People v. Bryant, Smith and
Wheeler (2014) 60 Cal.4th 335, 409 [failure to object to
challenged evidence below constitutes forfeiture].)
Moreover, at a sentencing proceeding, the court may
consider hearsay if there is a basis for believing the
information is reliable. (People v. Sledge (2017) 7
Cal.App.5th 1089, 1095.) Appellant offers no argument that
the information contained in the documents attached to the
prosecution’s sentencing memorandum was unreliable.
Finally, appellant contends the court failed to consider
his youth at the time of his prior offenses. He offers no
support for this assertion. At the sentencing hearing,
defense counsel highlighted appellant’s relative youth at the
time of his prior offenses, and nothing suggests the court did
not take this factor into account. That a court focused its
explanatory comments on certain aggravating factors does
not suggest it considered only those factors. (People v. Myers
(1999) 69 Cal.App.4th 305, 310.) “While a court must

30
explain its reasons for striking a prior [citations], no similar
requirement applies when a court declines to strike a prior
[citation].” (In re Large (2007) 41 Cal.4th 538, 550.) The
court was not compelled to find appellant’s relative youth at
the time of his priors dispositive, particularly given the
severity of his prior offenses and his continued violations
while in prison, which strongly suggested he “did not add
maturity to age.” (People v. Williams (1998) 17 Cal.4th 148,
163 [trial court abused its discretion in granting Romero
relief, despite defendant’s youth at time of prior strikes,
because defendant persisted in criminal activity].)

b. Constitutionality of the Sentence
We reject appellant’s contention that his sentence was
unconstitutionally excessive. Under the California
Constitution, a punishment is unconstitutionally excessive if
“it is so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental
notions of human dignity.”13 (In re Lynch (1972) 8 Cal.3d
410, 424.) In reviewing a statutorily mandated sentence for
excessiveness, a reviewing court must grant “‘“the broadest
discretion possible”’ [citation] to the legislative judgment
respecting appropriate punishment,” accounting for the fact

13 Although appellant asserts both federal and state
constitutional challenges to his sentence, we analyze his claims
exclusively under the California Constitution, as he does not
contend that the federal Constitution offers him any additional
protection.

31
that “‘[t]he choice of fitting and proper penalties is not an
exact science, but a legislative skill involving an appraisal of
the evils to be corrected, the weighing of practical
alternatives, consideration of relevant policy factors, and
responsiveness to the public will . . . .” (In re Palmer (2021)
10 Cal.5th 959, 972 (Palmer).) Thus, “[o]nly in the rarest of
cases could a court declare that the length of a sentence
mandated by the Legislature is unconstitutionally
excessive.” (People v. Martinez (1999) 76 Cal.App.4th 489,
494.)
Our Supreme Court “has distilled three analytical
techniques to aid [the] deferential review of excessiveness
claims: (1) an examination of the nature of the offense and
the offender, with particular attention to the degree of
danger both pose to society; (2) a comparison of the
punishment with the punishment California imposes for
more serious offenses; and (3) a comparison of the
punishment with that prescribed in other jurisdictions for
the same offense.” (Palmer, supra, 10 Cal.5th at 973.)
Appellant’s arguments focus only on the first of these
techniques, and we therefore do the same in our analysis.14

14 In his opening brief, appellant compares his sentence to the
ordinary punishments for his offense of battery on a non-confined
person by a prisoner (§ 4501.5 [two, three, or four years]), and the
lesser offenses of battery on a custodial officer (§ 243, subd. (c)(1)
[16 months, or two or three years]) and simple battery (§ 243,
subd. (a) [maximum of six months]). These comparisons are
inapposite, as they do not concern more severe offenses (see
Palmer, supra, 10 Cal.5th at 973), and they contrast appellant’s
(Fn. is continued on the next page.)

32
 Neither the nature of the offense nor appellant’s
circumstances suggest his sentence is so disproportionate as
to shock the conscience. Initially, we do not share
appellant’s view of his current offense as “relatively minor.”
Appellant bit a correctional officer while resisting officers’
efforts to restrain him, offering such physical resistance that
five officers were required to subdue him.15 Moreover, “‘the
three strikes law punishes not only [appellant’s] current
offenses, but also his recidivism.’” (Sullivan, supra, 151
Cal.App.4th at 571.) “‘California statutes imposing more
severe punishment on habitual criminals have long
withstood constitutional challenge.’” (Ibid.) As noted,
appellant’s lengthy criminal history included a murder

third-strike sentence with the punishments applicable to persons
who suffered no prior strike. (See People v. Sullivan (2007) 151
Cal.App.4th 524, 571 (Sullivan) [“‘Because the Legislature may
constitutionally enact statutes imposing more severe punishment
for habitual criminals,’ we cannot logically compare appellant’s
‘punishment for his [current offenses,] which includes his
recidivist behavior, to the punishment of others who have
committed more serious crimes, but have not qualified as repeat
felons’”].)
15 People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony
II), cited by appellant, is distinguishable. There, the Court of
Appeal held unconstitutional a 25-year-to-life sentence under the
Three Strikes Law for violation of sex offender registration
requirements, where the defendant “had properly registered his
current residential address and demonstrated a good faith
attempt to comply with the sex offender registration law[,] but
due to a negligent oversight had failed to update his registration
within five working days of his birthday.” (In re Coley (2012) 55
Cal.4th 524, 531 [discussing Carmony II].)

33
conviction, and even the life sentences he was serving at the
time of his current offense proved insufficient to deter him
from reoffending.
Appellant stresses his prior offenses’ remoteness and
his relative youth at the time. But neither factor establishes
that his sentence is unconstitutional. That since 2006,
appellant committed only the current offense -- as well as
multiple disciplinary violations in prison -- is unremarkable,
given that he has been continuously incarcerated since 2009.
(Cf. People v. Vasquez (2021) 72 Cal.App.5th 374, 390
[reversing trial court’s striking of prior strike, and stating,
“In analyzing whether a defendant’s prior criminal conduct
was ‘remote,’ a trial court should consider whether the
defendant ‘was incarcerated a substantial part of the
intervening time and thus had little or no opportunity to
commit’ additional crimes”].) As to his age at the time of his
priors, appellant cites no authority, and we are aware of
none, holding that the Legislature may not treat an offender
as a recidivist if the offender committed his prior offenses --
here, burglary, murder, and other offenses -- when he was a
young adult. While special constitutional rules apply to the
punishment of juveniles, appellant was not a juvenile at the
time of his current offense or his priors. (People v. Edwards
(2019) 34 Cal.App.5th 183, 186, 190-192 [upholding as
constitutional sentences of 95 years to life and 129 years to
life for 19-year-old sex offenders; “a defendant’s 18th
birthday marks a bright line” (id. at 190)].) Accordingly,
appellant’s sentence was not unconstitutionally excessive.

34
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS

MANELLA, P. J.

We concur:

CURREY, J.

STONE, J.*

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

35