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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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. B317374

(Super. Ct. No. 18F-06859)

(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 

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.
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 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).
3

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.
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 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
5

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 
6

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 selfdefense (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 
7

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” 
8

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].)
9

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 
10

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 
11

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.
12

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.
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 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.)
14

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 
15

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.
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, Deputy Attorney General, for 

Plaintiff and Respondent.