Filed 9 / 11 / 23 P. v. Bullock CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

Plaintiff and Respondent,

v.

DONALD LAVON BULLOCK

,
Defendant and Appellant. 2d Crim. No. B 31 7374 (Super. Ct. No. 18F

- 0 6859 ) ( San Luis Obispo County)

Donald Lavon Bullock appeals the judgment entered after a jury convicted him of battery on a non

- confined person by a pri soner ( Pen . Code, 1 § 4 501.5 ) and resisting an executive officer (§ 69). In a bifurcated proceeding, the trial court found true allegation s that appellant had a prior 2009 conviction for active gang participation ( § 186 .22, subd. (a) (hereinafter § 186.22(a) )
that quali fied as both a strike (§ 1170.12, subds. (b), (c)) and a

1 All undesignated statutory references are to the Penal Code.2

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 s trike 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 r aises 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 record s of the in camera proceedings o n his Pitchess 3 motion

. We agree with appellant that the true findings on the prior
strike and ser ious 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 Ca l

. App. 5th 143

, 150

- 151
, review denied June 10, 2020 , S261815 ( Strike ) ; People v. Farias ( 202 3) 92 Cal.App

. 5th 619 ( Farias ) .) Accordingly, we shall

reverse the prior conviction findings, vacate appellant’s sentence,
and remand for retrial of th e 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 ).3 STATEMENT OF FACTS
Pr osecution
On Mar ch 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 II 4 saw appell ant 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 follow ed 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 toward s the Program Office and app ellant followed him. A fter a ppellant

“ 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 appe llant inside t he Program Office. He drick then walked appellant to a temporary holding cell and attempted to conduc t 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.4 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 s till on the ground,

a ppellant continue d to thrash his body around. Rogers attempted to place restraints on appellant’s ankles

. Appellant looked direct ly at Rogers, pulled his leg up toward his chest, and k icked Roger s in the knee , causing Roger s 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 denie d 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 appel lant bec a me agitated after Rogers asked him for his ID card. Rog ers told appellant to “cuff up” but appellant refused, which prompted Rogers to point his
OC spray at appellant’s chest. A ppellant still di d 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 H ed ri c k , 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 F loercky
tried to calm him down

. A ppellant was taken to the fl oor and5

Castillo held appellant’ legs while Rogers applied leg restraints. Although she did not see appellant kick Roge r s and d id not see Rogers fall , she did not have a clear view of the incident and mostly saw appellant’s back

. Appellant testified that he w as 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. Appe llant had walked
about 25 st eps away when Rogers called him back and took his
ID c ard. Appellant called Rogers a “ n***a,” which appellan t considers a term of endearment. Ro gers responded “I’m not your

n  r, boy,” whi ch made appellant angry because “n** **r” is a
racist slur. A ppellant believed that Rogers was unfairly targeting him, so he said “fuck you

, pig” and “‘f’ t he police” and told Rogers he did not have to listen to him. Roger s walked away, but appellant fo llowed him because
he needed to retrieve his ID to obtain his medication. Appellant

sat on a table inside the Program Offi c e and waited to see if Rogers was going to return his ID. Rogers pulle d out his OC

spra y and ordered appellant to cuff up. Appella nt refuse d to comply because he thought Rogers was a racist and had targeted
him for mistreatment. A lthough a ppellant refused t o follow Rogers’s orders, he c omplied with Ca s tillo’s order t o cuff up.
H edrick and Floercky told appellant to face forward while Hedrick was searching him, but he refuse d to comply because he
wanted to see if they were trying to pla nt weapons or drugs on
him. Appellant heard Rogers tell Hedrick and Floercky “why they searchin g me [ sic ] , they w as going to take me down.” Appellant interpreted this to mea n they were going to “slam[] me6

on top of my head.” Although Hedrick and Floer c ky “barely” had their hands on him, he feare d for his life so he took off running. Appel lant d enied kicking Rogers and claimed he stopped struggl ing 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. Appel lant also admitted having seven prio r felony
convictions , including a 2017 guilty plea conviction for an a ssau lt against another CMC staff member. In that incident, th e officer reported that appellant had “headbutted” him a nd had to be taken to the ground for thrashing around and resisting. Appellant acknowl ed ged that he called t he o fficer a “n ***a” in a derogatory mann er and claimed he only later start ed using the
word as a t erm of e n dearment.
Rebuttal On rebuttal, one of the officer s involved in the 2017 staff
assault testified that appellant had resisted and thrashed his body left and ri ght in an attempt to break free. The officer also saw appellant make a headbut t movement toward th e victim and

s ubsequently 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 custodia l officer (CALCRIM No. 267 1 ) and self

defense (CALCRIM No. 3 470 )

, and refusing to include bracketed portions of the instructions given on resis ting an executive officer in the performance of duty (CALCRIM No. 2652 ), resisting a7

peace officer (CAL CRIM 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 defend ant if it incorrectly states t he law, is argumentative, duplicative, or potentially confusing [citation ], or it if is not supported by substantial evidence [cita tion].” ( People v. Moon (200 5) 37 Cal.4th 1, 30.) T he 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
wit h t he court’s conclusion. Appellant ’s clai m of self

- defense was premised on th e assertion that Roge r s was not lawfu lly 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 Peopl e v. Ghebretensae (2013) 222 Cal.App.4th 741, 759 , disapproved on other grounds in People v. Bryant (2021) 11 Cal.5 th 976, 986, fn. 5; People v. Gutierrez (2009 ) 174 Cal.App. 4th 515, 52 0 .)
A ppellant concedes both below and on appeal that none of
the officers used excessive or unreasonable forc e against him

. He
nevertheless claim s that the officers’ words and actions g ave rise to an objective rea s onable belief that the use of excessive force against him was imminent. ( See People v. Minifie (1996) 13 Cal.4th 1055, 1064 [reco gnizing that self

- defense may be used against a threat of imminent harm ]. ) H e asser ts among other things that Roger s is a “large” m an who “targeted and harassed”8

him , “pointed a chemical agent at appellant’s face ”

, and

purpo rtedly “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 f aced an imminent threat of
harm

, such that he was justified in r esorting to self

- defense

. Appellant admitted he was not following the offi c ers’ 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 doctrin e

— applicable when a defendant reasonably believes that his safety is endangered

— may not be invoked by a defendant wh o , through his own wrongful conduct

. . . h as created circumstances under which his adversary’s attack or pursuit is legally justified.” ( In re Christi an S. (1994) 7 Cal.4th 768, 773, fn. 1 , italics omitted .) Appellant also admitted
that Hedrick “barely” had his ha nds on him when Rogers purportedly made the comment about taking him down and that Floercky was “ barely” holding a pi e ce of his coat. Even assuming that the requested instructions should have been given, the erro r 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 her e was harmless regardless of the standard o f review

. App ellant’s claim of self

- defense was incredible and implausible
and the evidence that he w a s 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 ].)9 II.
Prior Strike A nd Serious Felony Allegations

a. Rodriguez Appellant contend s the trial court’s true findings on the prior strike and serious felony alleg ations 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 cou rse 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 186.2 2 (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 conduc t by members of that gang.” Pursuant to section 1192.7, “any felony offense, which would also10

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 18 6 .22( a) is not violated when an active gang member commits a felony
offense but acts alone. ( Rodrig uez , supra , 55 Cal.4th at p. 1139.)
In Strike

, supra , 45 Cal.App.5th 143

, our colleagues in the Fourth
District recognized that th is “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, o ur colleagues in the Third District reached the same conclusion with regard to section 667, subdivision (a) prior serious felony allegations

. ( Farias , at p p. 647

- 648 .) The appellant in Strike pleaded guilty in 2007 to active

gang participation under section 186.22(a). After h e 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
docume nt that a codefendant was a member of Strike’s gan g

. ( Strike

, supra , 45 Cal.Ap p

. 5th at pp. 146

- 147.) B ecause the
record did no t sh o w Strike had admitted the factual allegations contained in the 2007 charging document as part of his guilty plea, the court o f 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
f or a new hearing on the prior strike for the prosecution to11

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
commit ted 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
the re was no evidence offered to prove the defendant had
admitted c ommitting the offense with another active member of his gang. ( Farias

, supra , 92 Cal.App.5th at pp. 647

- 648 .)
H ere, the People offered no evidence to prove appellant acted with another member of his gang in committing the section
18 6.22(a) offense upon w hich 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 appell a nt 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 t o reject Strike , they do not
address Farias , which follows Strike and correctly dispos e s 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 ha ve stated they inten d to do so

. ( Strike

, supra , 45 Cal.App. 5th at

p. 154.) Accordi ngly, we shall reverse the prior conviction findings, vacate a ppellant’s sentence, and remand for retrial of the prior conviction allegations and resentencing.12 b. AB 333 Appellant alternatively contends the true findings on his prior conviction alleg ations must be reversed fo r insufficient
evidence and that the matter must remanded for retrial o f those allegations pursuant to recent amendments to se ction 186.22
effecte d b y AB 333, whic h 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. [Cita tion.]” ( Scott

, supra , 91 Cal.App.5th at p. 1181

. ) Appellant’s prior 2 009 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 strik e and serious felony conviction allegations is not final, he is entitled to the retroactive
benefit of AB 333 such that h is prior conviction allegations must
be retried under the new version of the l aw. We agree with Scott
that AB 333 does not apply in these circumstances.13 “ 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 fi xed 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 p p. 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 prio r. ” ( S cott , supra , 91 Cal.App.5th at p. 1184.) Appellant’s arguments
to the contrar y 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 re troactively apply to appellant’s f

inal 2009 conviction for violating section 186.22(a ), the People’s contentio n that AB 333 is unconstitutional is moot

. (See Scott

, supra , 91 Cal

. App. 5th at p. 11 8 5.)14

defendants to seek discovery from the court of potentially exculpatory information located in otherwise confidential peace officer personn el 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. C ode, §§ 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
i nformation re garding Officer s Rogers, Hedrick and Flores relevant to allegations of writing false reports and/or receiving discipline for writing such reports, as well as any reports th ey 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
discov er any complaints regarding the officers’ credibility and any complaints within the past five years a lleging 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 conta ct 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 discovery15

motion that failure to disclose them was an abuse of Pitchess discretion”]. )
DISPOSITION
The trial cour t’ s true findings on the prior strike and serious felony allegations are reversed and appellan t’s sentence is
vacated. We remand the matter for retrial of the prior conviction allegation s and resentencing. In all other respects, the judgment
is affirmed.
NOT TO BE PUBLISHED.

CODY , J.

We concur:

GILBERT , P. J.

BALTODANO , J.16 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 , De puty Attorney General, for Plaintiff and Respondent.