Filed 9/11/23 P. v. Bullock CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B317374
(Super. Ct. No. 18F-06859)
Plaintiff and Respondent, (San Luis Obispo County)
v.
DONALD LAVON BULLOCK,
Defendant and Appellant.
Donald Lavon Bullock appeals the judgment entered after a
jury convicted him of battery on a non-confined person by a
prisoner (Pen. Code,1 § 4501.5) and resisting an executive officer
(§ 69). In a bifurcated proceeding, the trial court found true
allegations that appellant had a prior 2009 conviction for active
gang participation (§ 186.22, subd. (a) (hereinafter § 186.22(a))
that qualified as both a strike (§ 1170.12, subds. (b), (c)) and a
1 All undesignated statutory references are to the Penal
Code.
serious felony (§ 667, subd. (a)).2 The court sentenced him to an
aggregate term of eight years and eight months in state prison,
consisting of the upper term of four years on the battery count
doubled for the strike prior, plus a consecutive eight-month term
on a prior 2017 conviction for resisting an executive officer. The
prior serious felony enhancement was stricken pursuant to
section 1385.
Appellant raises claims of instructional error and
insufficient evidence and contends he is entitled to the retroactive
benefit of two recent statutory amendments relating to his
sentencing. He also asks us to review the sealed records of the in
camera proceedings on his Pitchess3 motion.
We agree with appellant that the true findings on the prior
strike and serious felony conviction allegations must be reversed
because the evidence is insufficient to prove he committed the
underlying gang participation offense with another gang
member. (People v. Rodriguez (2012) 55 Cal.4th 1125, 1138-1139
(Rodriguez); People v. Strike (2020) 45 Cal.App.5th 143, 150-151,
review denied June 10, 2020, S261815 (Strike); People v. Farias
(2023) 92 Cal.App.5th 619 (Farias).) Accordingly, we shall
reverse the prior conviction findings, vacate appellant’s sentence,
and remand for retrial of the prior conviction allegations and
resentencing. Otherwise, we affirm.
2 The jury also found not true a great bodily injury
allegation (§ 12022.7) attendant to the battery charge of which he
was convicted (count 1), and acquitted him of two other batteries
charged in counts 2 and 3.
3 Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
2
STATEMENT OF FACTS
Prosecution
On March 26, 2018, appellant was an inmate at the
California Men’s Colony (CMC) as an enhanced outpatient (EOP)
and as an individual with developmental disabilities (DDP).
Correctional Officer Ernest Rogers II4 saw appellant and four
other inmates standing together in the yard, in violation of rules
prohibiting gatherings of more than four inmates. Rogers and
Correctional Officer Vanessa Castillo approached the group and
Rogers told them to disperse. The other four inmates complied,
but appellant followed Rogers and yelled at him. Rogers took
appellant’s ID card to write him up for a rules violation.
Appellant called Rogers a racist and said “I’m DDP, n****r.
I ain’t got to listen to you.” Rogers walked away towards the
Program Office and appellant followed him. After appellant
“g[o]t in [Rogers’s] face,” Rogers pulled out his oleoresin capsicum
(OC) spray and ordered appellant to cuff up. Appellant did not
comply, so Rogers called a Code 1 (which signals a disruptive
inmate) and asked Castillo to place appellant in handcuffs.
Castillo handcuffed appellant and walked him into the Program
Office.
Floercky and Hedrick took custody of appellant inside the
Program Office. Hedrick then walked appellant to a temporary
holding cell and attempted to conduct a clothed search.
Appellant became more agitated and resistive, said “fuck this,”
and tried to break free by thrashing his upper body left and right.
4 Rogers was the victim of the battery and resisting charges
of which appellant was convicted. CMC Correctional Officers
Bartel Floercky and Charles Hedrick were the alleged victims of
the two battery charges of which he was acquitted.
3
Appellant swung his right elbow back to hit Floercky in the
chest, then attempted to run down the hallway back towards the
yard. Hedrick and Floercky tried to take appellant to the ground.
Hedrick fell and hit his head and back against the wall and
appellant fell on top of Hedrick. While still on the ground,
appellant continued to thrash his body around.
Rogers attempted to place restraints on appellant’s ankles.
Appellant looked directly at Rogers, pulled his leg up toward his
chest, and kicked Rogers in the knee, causing Rogers to fall on
top of him. As a result of the incident, Rogers suffered a knee
sprain that required therapy and caused him pain for several
months.
Rogers denied telling Hedrick that a body search of
appellant was pointless and that appellant needed to be taken
down to a prone position. Rogers also denied telling appellant,
“I’m not your n****r, boy.” Hedrick denied threatening to take
appellant down and said he did not hear anyone else make such a
threat.
Defense
Castillo testified that appellant became agitated after
Rogers asked him for his ID card. Rogers told appellant to “cuff
up” but appellant refused, which prompted Rogers to point his
OC spray at appellant’s chest. Appellant still did not want
Rogers to handcuff him, but allowed Castillo to do so.
After Castillo took appellant to the Program Office and
transferred custody of him to Hedrick, she saw Hedrick attempt
to conduct a clothed search of appellant. Appellant was agitated,
kept moving his head back, and was not listening to the officers’
orders. He attempted to get away and Hedrick and Floercky
tried to calm him down. Appellant was taken to the floor and
4
Castillo held appellant’ legs while Rogers applied leg restraints.
Although she did not see appellant kick Rogers and did not see
Rogers fall, she did not have a clear view of the incident and
mostly saw appellant’s back.
Appellant testified that he was standing in the yard with
three other inmates when another inmate approached them.
Appellant’s group told the inmate they could not gather in a
group of five. The entire group was already in the process of
dispersing when Rogers approached them. Appellant had walked
about 25 steps away when Rogers called him back and took his
ID card. Appellant called Rogers a “n***a,” which appellant
considers a term of endearment. Rogers responded “I’m not your
n****r, boy,” which made appellant angry because “n****r” is a
racist slur. Appellant believed that Rogers was unfairly
targeting him, so he said “fuck you, pig” and “‘f’ the police” and
told Rogers he did not have to listen to him.
Rogers walked away, but appellant followed him because
he needed to retrieve his ID to obtain his medication. Appellant
sat on a table inside the Program Office and waited to see if
Rogers was going to return his ID. Rogers pulled out his OC
spray and ordered appellant to cuff up. Appellant refused to
comply because he thought Rogers was a racist and had targeted
him for mistreatment. Although appellant refused to follow
Rogers’s orders, he complied with Castillo’s order to cuff up.
Hedrick and Floercky told appellant to face forward while
Hedrick was searching him, but he refused to comply because he
wanted to see if they were trying to plant weapons or drugs on
him. Appellant heard Rogers tell Hedrick and Floercky “why
they searching me [sic], they was going to take me down.”
Appellant interpreted this to mean they were going to “slam[] me
5
on top of my head.” Although Hedrick and Floercky “barely” had
their hands on him, he feared for his life so he took off running.
Appellant denied kicking Rogers and claimed he stopped
struggling as soon as he was told to do so. Appellant admitted,
however, that he was ”aggravated” while he was in the Program
Office and that when he is aggravated he “see[s] red” and has no
control over his actions.
Appellant also admitted having seven prior felony
convictions, including a 2017 guilty plea conviction for an assault
against another CMC staff member. In that incident, the officer
reported that appellant had “headbutted” him and had to be
taken to the ground for thrashing around and resisting.
Appellant acknowledged that he called the officer a “n***a” in a
derogatory manner and claimed he only later started using the
word as a term of endearment.
Rebuttal
On rebuttal, one of the officers involved in the 2017 staff
assault testified that appellant had resisted and thrashed his
body left and right in an attempt to break free. The officer also
saw appellant make a headbutt movement toward the victim and
subsequently saw a red mark on the victim’s forehead.
DISCUSSION
I.
Alleged Instructional Error
Appellant contends the trial court violated his due process
rights by refusing his request to instruct the jury on the lawful
performance of a custodial officer (CALCRIM No. 2671) and self-
defense (CALCRIM No. 3470), and refusing to include bracketed
portions of the instructions given on resisting an executive officer
in the performance of duty (CALCRIM No. 2652), resisting a
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peace officer (CALCRIM No. 2656), and battery by a prisoner on a
non-confined person (CALCRIM No. 2723) to pinpoint his theory
of self-defense. We are not persuaded.
“[A] trial court may properly refuse an instruction offered
by the defendant if it incorrectly states the law, is argumentative,
duplicative, or potentially confusing [citation], or it if is not
supported by substantial evidence [citation].” (People v. Moon
(2005) 37 Cal.4th 1, 30.) The trial court declined to give
appellant’s requested instructions after concluding they were not
supported by substantial evidence. We review that ruling de
novo (People v. Manriquez (2005) 37 Cal.4th 547, 581) and agree
with the court’s conclusion.
Appellant’s claim of self-defense was premised on the
assertion that Rogers was not lawfully performing his duties
when the incident occurred. CALCRIM No. 2671 makes clear,
however, that appellant had no right to resort to self-defense
against Rogers unless Rogers was subjecting him to excessive or
unreasonable force. (See People v. Ghebretensae (2013) 222
Cal.App.4th 741, 759, disapproved on other grounds in People v.
Bryant (2021) 11 Cal.5th 976, 986, fn. 5; People v. Gutierrez
(2009) 174 Cal.App.4th 515, 520.)
Appellant concedes both below and on appeal that none of
the officers used excessive or unreasonable force against him. He
nevertheless claims that the officers’ words and actions gave rise
to an objective reasonable belief that the use of excessive force
against him was imminent. (See People v. Minifie (1996) 13
Cal.4th 1055, 1064 [recognizing that self-defense may be used
against a threat of imminent harm].) He asserts among other
things that Rogers is a “large” man who “targeted and harassed”
7
him, “pointed a chemical agent at appellant’s face”, and
purportedly “order[ed] the other officers to ‘take down’ appellant.”
We agree with the trial court that appellant failed to
identify evidence from which the jury could have found he had an
objective reasonable belief that he faced an imminent threat of
harm, such that he was justified in resorting to self-defense.
Appellant admitted he was not following the officers’ orders and
was moving his head around when Rogers purportedly said they
were going to “take him down.” “It is well established that the
ordinary self-defense doctrine—applicable when a defendant
reasonably believes that his safety is endangered—may not be
invoked by a defendant who, through his own wrongful conduct
. . . has created circumstances under which his adversary’s attack
or pursuit is legally justified.” (In re Christian S. (1994) 7
Cal.4th 768, 773, fn. 1, italics omitted.) Appellant also admitted
that Hedrick “barely” had his hands on him when Rogers
purportedly made the comment about taking him down and that
Floercky was “barely” holding a piece of his coat.
Even assuming that the requested instructions should have
been given, the error would be harmless. The California
Supreme Court has yet to decide whether the failure to instruct
on a requested affirmative defense supported by substantial
evidence is federal constitutional error or state law error. (People
v. Gonzalez (2018) 5 Cal.5th 186, 199.) We conclude that any
error here was harmless regardless of the standard of review.
Appellant’s claim of self-defense was incredible and implausible
and the evidence that he was guilty of the crimes of which he was
convicted was overwhelming. (People v. Salas (2006) 37 Cal.4th
967, 972, 984 [error in failing to instruct on affirmative defense
nonprejudicial when evidence of guilt is overwhelming].)
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II.
Prior Strike And Serious Felony Allegations
a. Rodriguez
Appellant contends the trial court’s true findings on the
prior strike and serious felony allegations must be reversed
because the evidence offered to prove his underlying 2009
conviction for active gang participation (§ 186.22(a)) is
insufficient to establish that he committed the offense with
another active member of his gang, as provided in Rodriguez,
supra, 55 Cal.4th 1125. We agree.
“‘The People must prove all elements of an alleged sentence
enhancement beyond a reasonable doubt. [Citation.]’ [Citation.]
In identifying the facts proven by the existence of a prior
conviction, ‘[t]he trial court’s role is limited to determining the
facts that were necessarily found in the course of entering the
conviction. To do more is to engage in “judicial factfinding that
goes far beyond the recognition of a prior conviction.”’ [Citation.]
‘On review, we examine the record in the light most favorable to
the judgment to ascertain whether it is supported by substantial
evidence. In other words, we determine whether a rational trier
of fact could have found that the prosecution sustained its burden
of proving the elements of the sentence enhancement beyond a
reasonable doubt.’ [Citation.]” (Farias, supra, 92 Cal.App.5th at
p. 641.)
Section 186.22(a) makes it unlawful to “actively
participate[ ] in a criminal street gang with knowledge that its
members engage in, or have engaged in, a pattern of criminal
gang activity, and [to] willfully promote[ ], further[ ], or assist[ ]
in felonious criminal conduct by members of that gang.”
Pursuant to section 1192.7, “any felony offense, which would also
9
constitute a felony violation of section 186.22,” qualifies as both a
prior serious felony and a prior strike offense. (§§ 667, subds.
(d)(1), (e), 1192.7, subd. (c)(28).)
In 2012, our Supreme Court held that section 186.22(a) is
not violated when an active gang member commits a felony
offense but acts alone. (Rodriguez, supra, 55 Cal.4th at p. 1139.)
In Strike, supra, 45 Cal.App.5th 143, our colleagues in the Fourth
District recognized that this “change in the interpretation of
section 186.22(a) rendered a pre-Rodriguez conviction
inconclusive on its face as to whether it qualified as a strike.”
(Strike, at p. 150.) In Farias, supra, 92 Cal.App.5th 619, our
colleagues in the Third District reached the same conclusion with
regard to section 667, subdivision (a) prior serious felony
allegations. (Farias, at pp. 647-648.)
The appellant in Strike pleaded guilty in 2007 to active
gang participation under section 186.22(a). After he admitted the
prior conviction in a 2017 prosecution, the trial court found the
admission extended to the elements of section 186.22(a) “as now
understood” based on the allegations in the 2007 charging
document that a codefendant was a member of Strike’s gang.
(Strike, supra, 45 Cal.App.5th at pp. 146-147.) Because the
record did not show Strike had admitted the factual allegations
contained in the 2007 charging document as part of his guilty
plea, the court of appeal concluded that the trial court had
engaged in impermissible factfinding. (Id. at pp. 152-153.) The
court reasoned that the trial court had “‘invade[d] the jury’s
province by . . . mak[ing] disputed findings about “what a trial
showed, or a plea proceeding revealed, about the defendant’s
underlying conduct.”’” (Id. at p. 152.) The matter was remanded
for a new hearing on the prior strike for the prosecution to
10
demonstrate, based on the record of the 2007 proceeding, that the
defendant’s guilty plea encompassed a relevant admission in light
of Rodriguez’s clarification that the defendant must have
committed the offense with at least one other gang member.
(Strike, at p. 154.) A similar result was reached in Farias
regarding a prior serious felony conviction allegation for which
there was no evidence offered to prove the defendant had
admitted committing the offense with another active member of
his gang. (Farias, supra, 92 Cal.App.5th at pp. 647-648.)
Here, the People offered no evidence to prove appellant
acted with another member of his gang in committing the section
186.22(a) offense upon which his prior strike and serious felony
conviction allegations are based. The People introduced certified
prior conviction and commitment packets, both of which merely
demonstrated that in 2009 appellant had pleaded guilty to a
violation of section 186.22(a). It is thus clear that the evidence is
insufficient to prove the prior strike and serious felony conviction
allegations.
Although the People urge us to reject Strike, they do not
address Farias, which follows Strike and correctly disposes of the
very same arguments raised by the People in this case. (Farias,
supra, 92 Cal.App.5th at p. 648.) Because the evidence is
insufficient to prove the truth of the prior strike and serious
felony conviction allegations, those findings must be reversed.
The People, however, are entitled to retry the matter and have
stated they intend to do so. (Strike, supra, 45 Cal.App.5th at
p. 154.) Accordingly, we shall reverse the prior conviction
findings, vacate appellant’s sentence, and remand for retrial of
the prior conviction allegations and resentencing.
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b. AB 333
Appellant alternatively contends the true findings on his
prior conviction allegations must be reversed for insufficient
evidence and that the matter must remanded for retrial of those
allegations pursuant to recent amendments to section 186.22
effected by AB 333, which went into effect after his sentencing.
“[A]ny felony offense, which would also constitute a felony
violation of Section 186.22,” is a strike. (§ 1192.7, subd. (c)(28).)
AB 333 (2021-2022 Reg. Sess.), which went into effect on January
1, 2022, made several changes to section 186.22. Among other
things, AB 333 “‘“narrows the definition of ‘“criminal street gang”’
to ‘an ongoing, organized association or group of three or more
persons, whether formal or informal, having as one of its primary
activities the commission of one or more [enumerated criminal
acts], having a common name or common identifying sign or
symbol, and whose members collectively engage in, or have
engaged in, a pattern of criminal gang activity.’”’” (People v. Scott
(2023) 91 Cal.App.5th 1176, 1180 (Scott).)
Because AB 333 is ameliorative, it applies retroactively “to
all convictions not yet final on its effective date. [Citation.]”
(Scott, supra, 91 Cal.App.5th at p. 1181.) Appellant’s prior 2009
conviction for violating section 186.22(a) has long since become
final more than a decade before AB 333 went into effect.
Appellant nevertheless contends that because the judgment
containing the true findings on his prior strike and serious felony
conviction allegations is not final, he is entitled to the retroactive
benefit of AB 333 such that his prior conviction allegations must
be retried under the new version of the law. We agree with Scott
that AB 333 does not apply in these circumstances.
12
“The three strikes law provides: ‘Notwithstanding any
other law . . . : [¶] . . . The determination of whether a prior
conviction is a prior serious or violent felony conviction for
purposes of this section shall be made upon the date of that prior
conviction . . . .’ (§ 1170.12, subd. (b)(1); accord, § 667, subd.
(d)(1).) In other words, ‘the Legislature intended that the
qualifying status of a conviction would be fixed upon the date of
the prior conviction . . . .’ [Citation] This ‘mean[s] that the court
is presently required to look backward to see if, at the time of the
conviction of the past offense, such past offense qualified as a
serious or violent offense . . . .’ [Citation.] It therefore does not
matter if the definition of a strike has subsequently changed.”
(Scott, supra, 91 Cal.App.5th at pp. 1181-1182.)
Appellant’s 2009 conviction for violating section 186.22(a)
“is long since final. When it became final, it was a strike. The
fact that the Legislature has changed the definitions of active
gang participation . . . under section 186.22 cannot change the
status of [appellant’s] final 2009 conviction as a strike prior.”
(Scott, supra, 91 Cal.App.5th at p. 1184.) Appellant’s arguments
to the contrary are unavailing. His claim that AB 333
retroactively applies to his prior conviction thus fails.5
Pitchess
Appellant asks us to review the sealed transcript of the
hearing on his Pitchess motion. Pitchess “allow[s] criminal
5 Because we conclude that AB 333 does not retroactively
apply to appellant’s final 2009 conviction for violating section
186.22(a), the People’s contention that AB 333 is unconstitutional
is moot. (See Scott, supra, 91 Cal.App.5th at p. 1185.)
13
defendants to seek discovery from the court of potentially
exculpatory information located in otherwise confidential peace
officer personnel records. If a party bringing what is commonly
called a Pitchess motion makes a threshold showing, the court
must review the records in camera and disclose to that party any
information they contain that is material to the underlying case.
(See Evid. Code, §§ 1043, 1045.)” (People v. Superior Court
(Johnson) (2015) 61 Cal.4th 696, 705.) We review the trial court’s
ruling on the motion for abuse of discretion. (People v. Prince
(2007) 40 Cal.4th 1179, 1285.)
Appellant filed a Pitchess motion seeking discovery of
information regarding Officers Rogers, Hedrick and Flores
relevant to allegations of writing false reports and/or receiving
discipline for writing such reports, as well as any reports they
wrote that resulted in an inmate being charged with resisting an
executive officer or battery on a non-confined person by a
prisoner. The court determined that appellant was entitled to
discover any complaints regarding the officers’ credibility and
any complaints within the past five years alleging excessive force.
After reviewing the potentially discoverable records at an in
camera hearing, the court determined that one inmate’s staff
complaint was potentially relevant to appellant’s defense and
ordered that the complainant’s name and contact information be
disclosed to the defense.
After reviewing the sealed transcripts of the in camera
hearing, we are satisfied that the trial court did not abuse its
discretion. (See People v. Samayoa (1997) 15 Cal.4th 795, 827
[“Our independent in camera review . . . reveals no materials so
clearly pertinent to the issues raised by the Pitchess discovery
14
motion that failure to disclose them was an abuse of Pitchess
discretion”].)
DISPOSITION
The trial court’s true findings on the prior strike and
serious felony allegations are reversed and appellant’s sentence is
vacated. We remand the matter for retrial of the prior conviction
allegations and resentencing. In all other respects, the judgment
is affirmed.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
GILBERT, P. J.
BALTODANO, J.
15
Jacqueline H. Duffy, Judge
Superior Court County of San Luis Obispo
______________________________
Nancy Wechsler, 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, Scott A. Taryle, Supervising Deputy
Attorney General, Stefanie Yee, Deputy Attorney General, for
Plaintiff and Respondent.
16