1

Filed 2/18/14 P. v. Gundlach CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

MARVIN EARL GUNDLACH,

Defendant and Appellant.

E057860

(Super.Ct.No. RIF1203329)

OPINION

APPEAL from the Superior Court of Riverside County. Larrie R. Brainard, Judge. 

(Retired judge of the San Diego Super. Ct., assigned by the Chief Justice pursuant to art. 

VI, § 6, of the Cal. Const.) Affirmed.

Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney 

General, Lise Jacobson, and Vincent P. LaPietra, Deputy Attorneys General, for Plaintiff 

and Respondent.
2

I

INTRODUCTION

Defendant Marvin Earl Gundlach appeals from judgment entered following a jury 

conviction for attempting to deter or resist an executive officer from performing an 

official duty (Pen. Code, § 69;

1 count 1). The jury also found defendant not guilty of 

battery (§ 242; count 2). During sentencing, the trial court reduced defendant’s

conviction to a misdemeanor under section 17, subdivision (b). The trial court sentenced 

defendant to 365 days in jail.

Defendant contends the trial court erred in denying his motion to represent himself 

(Faretta2 motion). Defendant also argues the trial court erred in excluding evidence of

the arresting officer’s observations concerning defendant’s behavior and the officer’s 

experience regarding mentally unstable individuals. Defendant further requests this court 

to review the officer’s sealed personnel records to determine whether the trial court 

should have disclosed any of the records under defendant’s Pitchess3request. We reject 

defendant’s contentions and affirm the judgment.

II

FACTS

Stephen Silva and his son, Christopher Silva, operated a real estate business. At 

 

1

 Unless otherwise noted, all statutory references are to the Penal Code.

2

 Faretta v. California (1975) 422 U.S. 806.

3

 Pitchess v. Superior Court (1974) 11 Cal.3d 531, 537-538 (Pitchess).
3

the time of the charged offense on May 21, 2012, they had recently purchased through 

foreclosure a single family residence at 6241 Morton Avenue (the property). The home 

was the front home of a row of three homes that shared an easement of ingress and 

egress. Stephen had also just sold the home in the rear. Stephen was informed that the 

previous owner was parking a car across the easement, preventing access to the rear 

home. During the afternoon of May 21, 2012, Stephen arrived at the property, intending 

to ask the owner of the car not to block the easement.

Upon arriving at the property, Stephen approached a group of three individuals, 

which included defendant, his wife, Elena Gundlach, and Richard Runyan, who had 

recently been evicted from the property. Stephen believed Richard owned the car

blocking the easement. Stephen asked Runyan not to park his car across the driveway 

easement. Defendant approached Stephen and got into an argument with Stephen 

regarding the parked car. Defendant yelled and screamed at Stephen.

Stephen called Christopher on his cell phone, to assist him. Christopher arrived a 

few minutes later. Defendant and Stephen were still arguing. Christopher asked 

defendant to back off but defendant refused and began screaming at Christopher. 

Christopher called 911. 

Sheriff’s Deputy Melendez arrived and attempted to move defendant away from 

the Silvas. Defendant, who was yelling at the Silvas, began yelling at Melendez. 

Whenever Melendez gave defendant a directive, defendant disobeyed Melendez’s 

requests. Melendez put his hand on his holster and told defendant to stand back. 
4

Defendant yelled at Melendez to take his hand off of his holster and said, “That gun 

belongs to me.” Melendez told defendant, “‘You don’t tell me what to do.’” 

Defendant told Melendez he had no right to be there and had no jurisdiction over 

him. Defendant said he wanted to take Melendez’s car and place Melendez under 

“citizen’s arrest.” Defendant added, “‘I’m a member of the republic. I’ll tell [you] what 

[] to do and I’m going to place you under citizen’s arrest.’” Melendez associated this 

terminology with the “constitutional movement,” in which Melendez had received recent 

training. He had learned that members of this movement had assaulted and killed peace 

officers.

Defendant walked towards Melendez with his left fist raised in the air. Melendez 

thought defendant was going to assault him. With his right hand, defendant attempted to 

grab Melendez’s gun. Melendez called for emergency backup and grabbed defendant’s 

right arm, spun him around, and pushed him to the ground. Defendant fell on his chest, 

face down. Melendez put his knee in his back and handcuffed his right arm. Melendez 

initially was unable to handcuff defendant’s left arm because defendant resisted. 

Defendant told Melendez, “‘I’m going to fuck you up. You’re a dead man. I’m going to 

kill you.’” Melendez continued to struggle with defendant for about five minutes, until 

Sheriff’s Deputy Bloomer arrived. Melendez was unable, unassisted, to put a handcuff 

on defendant’s left arm.

When Bloomer arrived, defendant was attempting to push himself up with his left 

arm, which was under his body. Bloomer kicked defendant in his left side in an attempt

to distract defendant and grab defendant’s left arm. Defendant did not respond and 
5

continued to resist. After a brief struggle the two deputies fully handcuffed defendant, 

while defendant continued to resist, yell, and scream. Defendant refused to stand up. 

The deputies placed a “hobble” around his ankles, immobilizing his legs and put 

defendant in the back seat of a patrol car. Defendant moved his handcuffed hands from 

behind his back to the front of his body, removed the hobble from his ankles, and kicked 

the back patrol car window. Three or four other deputies arrived and assisted in 

removing defendant from the patrol car and putting handcuffs and leg restraints on him 

again. Defendant continued to resist the deputies. While Bloomer transported defendant 

to the station, defendant yelled and made threats.

Defendant’s wife, Elena, testified that, after Stephen got out of his car, he 

approached defendant, Runyan, and Elena, shouting and began arguing with defendant. 

Christopher arrived and appeared to want to fight defendant. Defendant moved away 

from Christopher. When the police arrived, defendant backed away and said the police 

should not arrest him because he knew the law, section 69. As defendant was walking 

sideways, toward the house, a deputy grabbed him, pushed him to the ground, and started 

hitting him. Elena denied seeing defendant raise his fist or reach for the deputy’s gun. 

She did not hear defendant make any threats, and defendant had not been drinking that 

day. While on the ground, defendant resisted the deputies. Elena took photos of the 

incident, which the police took as evidence.

Runyan testified he formerly lived at the residence at 6241 Morton Avenue. He 

was sitting at the residence with defendant and Elena when Stephen arrived. Stephen 

drove up, jumped out of his car, ran to the easement, and told Runyan he was parking in 
6

the easement, blocking egress and ingress to and from the back house. Runyan denied 

parking in the easement and told Stephen that a woman in the middle house was the 

person who had parked her car in the easement. Stephen and defendant were talking 

loudly when Christopher arrived. When Christopher aggressively approached defendant, 

Stephen told Christopher not to bother defendant. Christopher retreated. 

Runyan stated that when Melendez arrived, he spoke to Stephen and then told 

defendant to step back and defendant turned around and walked away. Melendez then 

tripped defendant and forced him to the ground. Runyan did not hear defendant tell 

Melendez to take his hand off his gun or say anything else to Melendez before Melendez 

tripped defendant. Runyan testified defendant raised his hand but did not make a fist. 

Runyan said he did not see defendant lunge at Melendez’s gun. Defendant was merely 

lying on the ground, with his hands in the air. When a second officer arrived, the officer 

immediately kicked defendant in the ribs.

III

FARETTA MOTION

Defendant contends the trial court abused its discretion in denying his Faretta 

motion. He argues he has an unqualified right under the federal Constitution to represent 

himself because he made his Faretta motion before empanelment of the jury and there 

was no evidence his request was made for purposes of delay. 
7

On December 6, 2012, the day defendant’s trial was scheduled to begin, defendant 

made a Marsden4 motion, requesting a new attorney. After conducting a Marsden 

hearing, the trial court denied defendant’s request, concluding defendant’s attorney was 

competent and had effectively represented defendant. Defendant then requested the court 

allow him to represent himself (Faretta motion). Initially, the trial court was willing to 

grant defendant’s motion but the court ultimately denied defendant’s request to represent 

himself after defendant refused to sign the Faretta waiver form or verbally answer 

questions confirming he was knowingly and intelligently waiving his right to counsel. 

Defendant demonstrated defiant, uncooperative, and obstreperous behavior, in which he 

went off on tangents and espoused irrelevant diatribes, despite the court’s patient and 

persistent attempts to guide defendant in addressing the necessary prerequisites for

waiving defendant’s right to counsel.

A defendant has a constitutional right under the Sixth Amendment to represent 

himself. (Faretta v. California, supra, 422 U.S. at pp. 807, 833-834; People v. Windham

(1977) 19 Cal.3d 121, 124 (Windham); People v. Howze (2001) 85 Cal.App.4th 1380, 

1397 (Howze).) Such a request must be unequivocal and timely made. (People v. 

Bradford (1997) 15 Cal.4th 1229, 1365; People v. Ruiz (1983) 142 Cal.App.3d 780, 790

(Ruiz).) If the motion, commonly referred to as a Faretta motion, is not timely made, the 

defendant has no absolute right to self-representation and the motion is left to the sound 

discretion of the trial court. (People v. Frierson (1991) 53 Cal.3d 730, 742 (Frierson); 

 

4

 People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
8

People v. Scott (2001) 91 Cal.App.4th 1197, 1204 (Scott); Windham, at p. 128 fn. 5; 

Howze, at p. 1397.) When exercising its discretion on such a request, the court should

consider (1) the quality of counsel’s representation, (2) the defendant’s prior proclivity to 

substitute counsel, (3) the reasons for the request, (4) the length and stage of the 

proceedings, and (5) the disruption or delay which might reasonably be expected to 

follow the granting of such a motion. (Windham, at p. 128.) “Additionally, a trial court 

may deny such a motion if it finds it is made for the purpose of frustrating the orderly 

administration of justice. [Citation.]” (Howze, at p. 1397.) 

In the instant case, the trial court denied defendant’s motion on the grounds it was 

untimely and granting it would result in defendant disrupting the trial proceedings. On 

appeal, defendant asserts his motion was timely under federal law. He urges us to apply 

the federal law bright-line test applied in determining whether a Faretta motion is timely. 

(See, e.g., Moore v. Calderon (9th Cir. 1997) 108 F.3d 261, 264 [request timely if made 

before jury impaneled unless used as delay tactic].) The California Supreme Court, 

however, has specifically rejected application of the federal bright-line test in state 

courts. (People v. Clark (1992) 3 Cal.4th 41, 99 (Clark); People v. Burton (1989) 48 

Cal.3d 843, 853-854 (Burton); see People v. Avena (1996) 13 Cal.4th 394, 431 [even on 

federal questions, California courts are not bound by decisions of federal appellate 

courts].) This court is bound by our state high court’s holding. (See Auto Equity Sales, 

Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456.) We therefore apply California 

law to determine the timeliness of defendant’s motion for self-representation.
9

Under California law, a motion to represent oneself must be made within a 

reasonable time before commencement of trial in order to be timely. (Burton, supra, 48 

Cal.3d at p. 852; Clark, supra, 3 Cal.4th at p. 98.) The trial court looks to the 

circumstances at the time of the motion when determining timeliness. (People v. 

Marshall (1997) 15 Cal.4th 1, 24-25, fn. 2; People v. Moore (1988) 47 Cal.3d 63, 80.) A 

finding of untimeliness is not an abuse of discretion if the motion is made when trial is 

imminent but later postponed. (People v. Dent (2003) 30 Cal.4th 213, 221; Marshall, at 

pp. 24-25, fn. 2.) There is no hard and fast rule delineating when a pretrial Faretta

motion is considered untimely. A Faretta motion generally is untimely if made on the 

“eve of trial” or when the trial is being continued on a day-to-day basis. (Clark, supra, 3 

Cal.4th 41, 99-100; Howze, supra, 85 Cal.App.4th at p. 1397.) Determination of 

timeliness is addressed on a case-by-case basis. (Ruiz, supra, 142 Cal.App.3d at pp. 787-

788.) 

In the instant case, defendant requested to represent himself on the day his trial 

was scheduled to begin, after the trial had been previously continued and after the parties 

had announced ready for trial. The trial court had discretion to deny defendant’s Faretta

motion as untimely, since defendant’s trial was imminent and therefore defendant’s 

motion was untimely. (Faretta motions found untimely: Scott, supra, 91 Cal.App.4th at 

pp. 1204-1205 [four days before trial]; People v. Rudd (1998) 63 Cal.App.4th 620, 626; 

Frierson, supra, 53 Cal.3d at p. 742; Ruiz, supra, 142 Cal.App.3d at p. 791 [three days 

before scheduled trial]; Howze, supra, 85 Cal.App.4th at pp. 1390-1391, 1397 [two days 

before trial]; People v. Hill (1983) 148 Cal.App.3d 744, 757 [five days before trial];
10

Clark, supra, 3 Cal.4th at pp. 99-100 [motion made three days after trial continued on 

day-to-day basis].) “When California Supreme Court authority has been applied, motions 

for self-representation made on the day preceding or on the trial date have been 

considered untimely. [Citations.]” (Rudd, at p. 626.) 

Defendant’s reliance on Curry v. Superior Court (1977) 75 Cal.App.3d 221, for 

the proposition defendant met each of the requirements necessary to assert his right to 

self-representation is misplaced. Curry is distinguishable in that the defendant in Curry

made his request to represent himself at his preliminary hearing, not on the day his trial 

was scheduled to begin. In addition, the trial court denied the defendant’s request in 

Curry in large part based on a finding that the defendant could not effectively represent 

himself. The court in Curry held that the defendant’s competency to represent himself 

was not a valid basis for depriving a defendant of the right to self-representation. (Id. at 

pp. 227, 229.)

Here, the trial court’s decision denying defendant’s self-representation request was 

subject to the court’s sound discretion because it was made on the day trial was scheduled 

to begin and therefore the request was not timely made. (Howze, supra, 85 Cal.App.4th 

at p. 1397.) In evaluating the factors to be considered in determining whether the trial 

court abused its discretion in denying defendant’s Faretta motion, we conclude the trial 

court reasonably exercised its discretion in denying defendant’s Faretta motion. As to 

the first factor, the record indicates that the quality of defendant’s counsel’s 

representation was satisfactory. On five occasions, on August 13 and 30, 2012, and 

December 6, 11, and 13, 2012, the court denied defendant’s requests for new counsel 
11

(Marsden motions). In each instance, the court found that defendant’s attorney was 

providing adequate representation. The trial court therefore denied his request for a new 

attorney. Defendant’s Faretta motion was brought immediately after the trial court 

denied defendant’s Marsden motion on December 6, 2012. As to the second factor, 

defendant’s Marsden motions, three of which preceded the Faretta motion, further 

demonstrated defendant’s prior proclivity to attempt to substitute counsel.

As to the third factor, defendant’s reason for requesting self-representation is

apparent from the hearing on defendant’s Marsden motion immediately preceding his 

Faretta motion: The trial court denied his Marsden motion. During the Marsden motion, 

defendant said he wanted new counsel because his attorney refused to file any of his 

paperwork he requested her to file, including a writ of habeas corpus or mandate, which 

“just keeps growing and it needs to be filed.” Defendant said his writ related to not 

receiving a speedy trial (“timing”) and “ineffectiveness of counsel.” Defendant further 

complained his attorney had conferences, ate, and partied with the prosecutor and judge, 

in defendant’s absence. The trial court reasonably concluded defendant had not given the 

court any reason to relieve his attorney. The court stated it believed his attorney was 

doing a good job and was very competent. The record shows that defendant’s reasons for 

requesting self-representation were not well-taken. 

As to the fourth Windham factor, the length and stage of the proceedings, the trial 

court appropriately concluded defendant’s Faretta motion was not timely, since 

defendant brought it on the day his trial was scheduled to begin. The trial had already 

been continued at least once, the parties had announced ready to begin trial on more than 
12

one occasion, pretrial motions were scheduled to be heard that day (Thursday), and jury 

selection was to begin the following Tuesday. 

The fifth factor, “the disruption or delay which might reasonably be expected to 

follow the granting of such a motion,” (Windham, supra, 19 Cal.3d at p. 128) fully 

supported the trial court’s denial of defendant’s Faretta motion. The trial court initially 

indicated that it would allow defendant to represent himself if he was willing to proceed 

with the trial without further delay. But when the court requested defendant to confirm 

he was knowingly and intelligently waiving his right to representation by an attorney 

(Faretta waiver), defendant refused to cooperate in waiving his right to counsel, either in 

writing or orally. Defendant refused to sign a written Faretta waiver, argued with the 

court about proceeding with the trial, and refused to state that, if he represented himself, 

he was willing to proceed with the pretrial motions and select a jury, as scheduled,

without any further delays. Defendant said he wanted to represent himself several times 

but would “not sign papers at any time.” Defendant continued to argue with the court 

that his attorney was ineffective and demanded another attorney, even though the court 

had already denied his Marsden motion. Defendant claimed his trial was “rigged.” 

When the court reiterated that defendant could either have his attorney represent 

him or represent himself, defendant said he wanted to represent himself but again refused 

to sign the Faretta waiver form. The court asked defendant if he was going to represent 

himself in the trial, scheduled to start the following Tuesday, or, alternatively, have his 

attorney represent him. Defendant said he was going to file a writ of mandate and then 

go from there. When the court told defendant he needed to answer his question or the 
13

court would deny defendant’s Faretta motion, defendant said he believed he could 

represent himself fairly. 

The court then told defendant that since he would not sign the Faretta waiver 

form, the court was going to ask him to respond to the questions included in the waiver 

form. The court asked defendant if he understood he had a right to an attorney. 

Defendant said he understood this right. When asked if he understood that his attorney 

and the court recommended defendant’s attorney represent defendant, rather than 

defendant representing himself, defendant said the judges wanted “to commit treason 

right and left.” The court responded that defendant could “call it what you want” but 

defendant had not been very successful in his personal advocacy in the past before 

judges. Defendant replied that this was “because the corruptness in this court.” 

The court noted that, nevertheless, defendant would be better off being represented 

by an attorney. Defendant said this was true but his attorney did not know what she was 

doing and was ineffective. The court disagreed and told him that if he represented 

himself, he would be held to the same standard as a lawyer. When asked if defendant 

understood this, he began engaging in a diatribe, which included claiming he was “being 

held at $50,000 ransom against my desire and under duress and coercion submitting this 

contract and statement which relief can’t be granted and the payment in full, silver and 

gold, 100 million dollars for this conspiracy in cash. [¶] . . . Fourth Amendment 1776 

Constitution rights, nor the fact, liberty . . . .” The court interrupted defendant and told 

him he was not listening to what the court was saying. The court added that if defendant 

represented himself, he would also give up his right to appeal not being represented by 
14

counsel. In response, defendant again asked for a different attorney. The court told 

defendant he would continue to be represented by his current attorney because, although 

defendant had a right to represent himself, he had to make a record that he could 

represent himself reasonably and competently, and the court questioned whether 

defendant could do so.

The court once again asked defendant if he would read and sign the Faretta waiver 

form, and defendant said he would not because he “won’t not sign something that’s 

violating my constitutional rights.” The trial court stated that defendant’s Faretta motion 

was denied because it was clear that defendant would not be able to represent himself 

adequately, primarily because defendant tended to go off on irrelevant tangents as to 

procedure and constitutionality. Defendant continued to make irrelevant statements and 

argue with the court about the constitution and claimed his attorney was lying regarding 

defendant’s wife giving his attorney a book about the Fourth Amendment right to a 

speedy trial. The court stated again that defendant’s Marsden and Faretta motions were 

denied. The court further noted that defendant had refused to sign the Faretta waiver 

form or verbally answer the questions in the form, and would only talk about speedy trial 

rights. 

Under these circumstances, in which defendant brought his Faretta motion on the 

day trial was scheduled to begin and had continually argued with the court, raised 

irrelevant issues, and refused to cooperate in verifying waiver of his right to counsel, and 

frustrated the orderly administration of justice, the trial court reasonably concluded that 

allowing defendant to represent himself would result in disruption or delay of the trial 
15

proceedings. (Windham, supra, 19 Cal.3d at p. 128; Howze, supra, 85 Cal.App.4th at p. 

1397.) We therefore conclude the trial court did not abuse its discretion in denying 

defendant’s Faretta motion. 

“The judges of our courts are entitled to conduct their proceedings in an orderly 

and just fashion, and are not required to place their dockets and courtrooms at the mercy 

of obstreperous and unruly defendants with long track records of disruptive behavior. 

Such defendants, may not thwart the functioning of the criminal justice system in this 

state by making manipulative motions designed to result in the disruption of serious court 

proceedings for the perceived benefit of the defendant. Just as defendants have certain 

rights in court, so do courts have the power to preserve their dignity and their basic 

ability to function. In this case the court acted properly in denying the motion for selfrepresentation and no abuse of discretion occurred.” (Howze, supra, 85 Cal.App.4th at 

pp. 1398-1399.)

IV

CROSS-EXAMINATION OF DEPUTY MELENDEZ

Defendant contends the trial court improperly and prejudicially excluded his 

attorney’s cross-examination of Melendez regarding (1) Melendez’s observations and 

opinions as to whether defendant was mentally unstable at the time of the charged offense 

and (2) Melendez’s training and experience dealing with mentally unstable individuals. 

After Melendez testified he did not believe defendant was under the influence of 

alcohol or drugs at the time of the charged offense, defense counsel asked Melendez 

whether he thought defendant might have been mentally unstable and whether Melendez 
16

had been trained to deal with mentally unstable people. The trial court sustained the 

prosecutor’s relevance objections. The court stated that defense counsel could ask what 

Melendez “observed and saw and heard, but the rest just comes down to speculation. The 

activity . . . is going to have to speak for itself.” The court also sustained the prosecutor’s 

relevance objection when he asked Melendez if he saw “any behavior by [defendant] that 

indicated to you that he may not be mentally stable?” 

The court noted that Melendez’s opinions regarding defendant’s mental stability 

were not within his area of expertise and therefore could not be considered. The court 

explained: “You can ask him what [defendant] was saying, what he was doing, how he 

was acting, but the witness is not going to be allowed to give an answer as to what that 

means from some kind of a mental health standpoint.” Defense counsel responded that 

she was not seeking Melendez’s opinion. Rather, she intended to inquire regarding 

Melendez’s training as to people who were out of control. The court noted defense 

counsel did not ask about that. 

The following day, defense counsel resumed cross-examination of Melendez and 

asked him whether he had “any training in dealing with people who might have mental 

health issues.” The trial court again sustained the prosecutor’s relevance objection, 

stating, “I’m not going to let him make an opinion about whether your client has a mental 

health issue.” Defense counsel said she understood and that she was asking “[w]hether 

[Melendez] received any kind of training in dealing with someone who might have 

mental health issues.” The court sustained the prosecutor’s objection to this inquiry.
17

A criminal defendant has the right to a reasonable opportunity to effectively crossexamine the witnesses against him. (Delaware v. Van Arsdall (1986) 475 U.S. 673, 680

(Van Arsdall).) “‘“However, not every restriction on a defendant’s desired method of 

cross-examination is a constitutional violation. Within the confines of the confrontation 

clause, the trial court retains wide latitude in restricting cross-examination that is 

repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] 

California law is in accord. [Citation.] Thus, unless the defendant can show that the 

prohibited cross-examination would have produced “a significantly different impression 

of [the witnesses’] credibility” [citation], the trial court’s exercise of its discretion in this 

regard does not violate the Sixth Amendment. [Citation.]’ [Citations.]” (People v. Virgil

(2011) 51 Cal.4th 1210, 1251.)

Defendant argues that the excluded cross-examination was relevant to his defense 

that he lacked the intent required for a section 69 conviction, and to establishing whether 

Melendez used unreasonable or excessive force. Section 69 “sets forth two separate ways 

in which the offense can be committed. The first is attempting by threats or violence to 

deter or prevent an officer from performing a duty imposed by law; the second is 

resisting by force or violence an officer in the performance of his or her duty.” (In re 

Manuel G. (1997) 16 Cal.4th 805, 814.)

“The first way of violating section 69 ‘encompasses attempts to deter either an 

officer’s immediate performance of a duty imposed by law or the officer’s performance 

of such a duty at some time in the future.’ [Citation.] The actual use of force or violence 

is not required. [Citation.] Further, ‘the statutory language [of the first clause of section 
18

69] does not require that the officer be engaged in the performance of his or her duties at 

the time the threat is made. . . . [¶] The second way of violating section 69 expressly 

requires that the defendant resist the officer ‘by the use of force or violence,’ and it 

further requires that the officer was acting lawfully at the time of the offense. [Citation.]” 

(People v. Smith (2013) 57 Cal.4th 232, 240-241.)

The trial court did not abuse its discretion in excluding cross-examination of 

Melendez regarding (1) Melendez’s opinions as to whether defendant was mentally 

unstable and (2) Melendez’s training and experience dealing with mentally unstable 

individuals. The court permitted Melendez to testify concerning his observations of 

defendant’s conduct but reasonably concluded that Melendez’s opinion regarding 

defendant’s mental state was beyond the scope of Melendez’s expertise as a law 

enforcement officer. Therefore any cross-examination regarding his opinions as to 

defendant’s mental stability or related training regarding mentally unstable individuals 

was irrelevant, speculative, and inappropriate. Evidence of Melendez and defendant’s 

actual conduct at the time of the charged offense provided a sufficient basis from which 

the jury could make findings as to whether Melendez used excessive force and whether 

defendant possessed the requisite intent to commit a section 69 offense. 

Even if Melendez’s opinion regarding defendant’s mental state and his training in 

that regard was relevant, exclusion of cross-examination was harmless error. The 

harmless beyond reasonable doubt standard of review applies to the denial of the 

opportunity to cross-examine adverse witnesses on matters pertinent to their credibility. 

(People v. Chatman (2006) 38 Cal.4th 344, 372; Chapman v. California (1967) 386 U.S. 
19

18, 36.) We do not assume prejudice. (People v. Hernandez (2012) 53 Cal.4th 1095, 

1108.) In determining whether the defendant was prejudiced by the improper limitation 

on cross-examination, we consider, among other factors, whether the excluded evidence 

was cumulative, the extent of the cross-examination that was allowed, the degree of 

evidence corroborating or contradicting the witness, and the strength of the prosecution’s 

case. (Hernandez, at p. 1108, citing Van Arsdall, supra, 475 U.S. at p. 684.) Here, there 

was overwhelming evidence supporting defendant’s conviction for attempting to deter or 

resist an executive officer from performing an official duty (§ 69).

V

PITCHESS MOTION

Defendant requests that we conduct an independent review of in camera Pitchess 

motion proceedings on October 11, 2012, to determine whether the trial court followed 

the appropriate procedure and properly exercised its discretion in concluding that records

as to Deputy Melendez did not contain any discoverable information.

A defendant is entitled to discovery of a law enforcement officer’s confidential 

personnel records if those files contain information that is potentially relevant to the 

defense. (Pitchess, supra, 11 Cal.3d at pp. 537-538; Evid. Code, §§ 1043-1045.) The 

discovery procedure has two steps. First, a defendant must file a Pitchess motion, 

containing affidavits “showing good cause for the discovery or disclosure sought, setting 

forth the materiality thereof to the subject matter involved in the pending litigation.”

(Evid. Code, § 1043, subd. (b)(3).) If good cause is shown, the trial court then examines 

the records in camera and discloses only those records and information that are relevant 
20

and not subject to exclusion from disclosure. (Evid. Code, § 1045, subds. (a) & (b); see 

also People v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) The threshold required 

for the trial court to conduct an in camera review is relatively low. (City of Santa Cruz v. 

Municipal Court (1989) 49 Cal.3d 74, 83-84.) The trial court is granted wide discretion 

when ruling on a motion to discover law enforcement officer records (People v. Memro

(1995) 11 Cal.4th 786, 832), and we review that ruling for abuse of discretion. (Alford v. 

Superior Court (2003) 29 Cal.4th 1033, 1039).

On September 5, 2012, defendant filed a Pitchess motion requesting production of 

“[a]ny evidence of, or complaints of false statements in reports and false claims of 

probable cause, or use of excessive force” regarding deputies Melendez and Bloomer. 

The Riverside County Sheriff’s Department opposed the request. At the hearing on 

defendant’s Pitchess motion on October 11, 2012, the trial court found good cause to 

hold an in camera hearing on the motion as to Melendez’s records, but not as to 

Bloomer’s. The court conducted an in camera review of Melendez’s records, regarding 

those records showing excessive force within the last five years as to Melendez. After 

questioning the custodian of records and reviewing the applicable records, the court 

found no discoverable material and ordered the records sealed.

Because defendant was not present at the records review hearing, he requests this 

court to conduct an independent review of the sealed transcript of the hearing and the 

records produced to determine whether any error occurred. As requested, we have

reviewed the sealed transcript and conclude the trial courts properly conducted a Pitchess

document review hearing. Melendez’s records were not included as part of the record on 
21

appeal. The sealed transcript, however, adequately identifies and describes the 

documents reviewed for this court to determine whether Melendez’s documents were 

discoverable. The sealed reporter’s transcript is thus sufficient for a meaningful appellate 

review. (People v. Myles (2012) 53 Cal.4th 1181, 1209.) Based on our review of the 

sealed reporter’s transcript of the in camera Pitchess motion proceeding, we conclude 

Melendez’s personnel file did not contain anything disclosable and the trial court 

properly exercised its discretion in excluding from disclosure Melendez’s personnel 

records. (People v. Samayoa (1997) 15 Cal.4th 795, 827.)

VI

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

HOLLENHORST

Acting P. J.

McKINSTER

J.