Filed 12/12/22 P. v. Jones CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

DANIELPAULJONES,

Defendant and Appellant.

 B311533

 (Los Angeles County

 Super. Ct. No. MA076067)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Lisa Mangay Chung and Daviann L. 

Mitchell, Judges. Affirmed.

Aurora Elizabeth Bewicke, under appointment by the 

Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven D. Matthews and J. 
2

Michael Lehmann, Deputy Attorneys General, for Plaintiff 

and Respondent.

_________________________________________

INTRODUCTION

While serving a life sentence for murder and other 

offenses, appellant Daniel Paul Jones bit a correctional 

officer’s hand during a struggle with several officers who 

were trying to restrain him in order to search his cell for 

contraband. A jury found appellant guilty of one count of 

battery on a non-confined person by a prisoner, and he 

received a third-strike sentence of 25 years to life in prison. 

On appeal, appellant challenges both his conviction 

and his sentence. Initially, he asks that we review the 

sealed transcript containing the trial court’s review of 

correctional officer personnel files performed under Pitchess 

v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). 

Additionally, he asserts the trial court erred in: (1) excluding 

proffered testimony regarding certain officers’ prior 

misconduct; (2) denying a mid-trial continuance to allow him 

to secure the presence of certain witnesses; and (3) refusing 

to instruct the jury on excessive force and self-defense. He 

further contends the cumulative prejudicial effect of these 

alleged errors warrants reversal. As for his sentence, 

appellant contends the court abused its discretion in denying 

in part his motion under People v. Superior Court (Romero) 

(1996) 13 Cal.4th 497 (Romero) to strike his prior strike 

convictions. Alternatively, he maintains his sentence is 
3

unconstitutionally excessive. As explained below, we find no 

reversible error and therefore affirm. 

BACKGROUND

A. The Information

The Los Angeles County District Attorney’s Office 

charged appellant with three counts of battery on a 

non-confined person by a prisoner (Pen. Code, § 4501.5),

naming correctional officers Miguel Enriquez, Felipe 

Carreon, and Rolando Rosas as the respective victims. It 

further charged appellant with one count of custodial 

possession of a weapon (id., § 4502, subd. (a)). The 

information also alleged that appellant had suffered four 

prior convictions qualifying as strikes under the “Three 

Strikes” Law (id., §§ 667, subds. (b)-(i), 1170.12, subds. (a)-

(d)), and that one of those convictions was for murder

(§§ 667, subd. (e)(2)(C)(iv)(IV) & 1170.12, subd. 

(c)(2)(C)(iv)(IV)). 

B. The Evidence at Trial

1. The Prosecution’s Case

The prosecution called several correctional officers, 

including Officers Enriquez, Rosas, and Carreon, and they 

testified to the following. Appellant was an inmate at 

California State Prison, Los Angeles County. On January 

30, 2019, Sergeant Bryan Perez received information that 

appellant was suspected of smuggling narcotics through the 

mail, and that this contraband could be in his cell. Sergeant 
4

Perez provided the information to Officer Ernest Gollette 

and instructedhim to have appellant’s cell searched. Officer 

Gollette asked Officers Enriquez and Carreon to assist him. 

The officers proceeded to the area of appellant’s cell 

and located him outside the supply room, which was on the 

upper tier. Officers Gollette and Carreon approached

appellant, while Officer Enriquez trailed behind, instructing

other inmates to return to their cells. Officer Gollette 

ordered appellant to put his hands behind his back so the 

officer could place him in handcuffs. Appellant said, “Okay,” 

but did not comply, and instead attempted to go into the 

supply room.

Officer Gollette grabbed appellant’s arm, but appellant 

tried to break away by twisting and turning his body, while 

the officers repeatedly instructed him to stop resisting and 

allow them to cuff him. Officer Carreon approached to assist 

and attempted to restrain appellant. Officer Enriquez also 

arrived to assist, and after unsuccessfully attemptingto 

bring appellant’s arm behind his back, pushed appellant 

down from his shoulders in order to get him on the ground, 

which was safer. Appellant fell forward and his head hit the 

ground, but he continued to resist the officers. 

Officers Rolando Rosas and Sisak Sam Misirian joined

in to help restrain appellant. As the struggle continued, 

appellant struck the three officers named in the information 

in various ways. As he twisted on the floor, appellant began 

kicking his legs wildly in all directions, eventually hitting 

Officer Rosas’s leg. Officer Enriquez held onto appellant’s

right hand just below appellant’s head, when appellant 
5

tucked in his chin and bit Officer Enriquez’s right hand, 

leaving a bite mark. Finally, appellant was moving his head 

up and down, and as he moved it up again, the back of his 

head hit Officer Carreon’s nose. 

Ultimately, the officers succeeded in pulling appellant’s 

arms behind his back. Officer Gollette placed handcuffs on 

appellant’s wrists, and Officer Misirian placed restraints on 

his legs. Officer David Montoya then searched appellant’s 

cell and discovered a manufactured weapon inside his 

mattress. 

At trial, Sergeant Christopher Geiwitz testified as an 

expert on correctional officers’ use of force. Sergeant Geiwitz 

testified that in normal circumstances, officers are not 

allowed to touch inmates. He explained that when dealing 

with resisting inmates, officers are trained to handle the 

incident as quickly as possible, with minimal reliance on the 

use of force. When asked about the procedures surrounding 

the search of an inmate’s cell, Sergeant Geiwitz testified that 

the inmate is removed from his cell and placed in handcuffs

for the search to take place. 

2. The Defense’s Case

The defense called or recalled several officers, 

including Officer Carreon.1 As relevant here, when 

appellant’s counsel asked Officer Carreon if either he or 

1 Appellant represented himself through most of the trial, 

but ultimately allowed his standby counsel to assume his 

representation during the defense case. Appellant did not testify.
6

Officer Gollette announced their presence before “getting to 

[appellant],”the officer replied that they did not. Officer 

Carreon also testified, however, that either he or Officer 

Gollette had asked appellant to approach them or otherwise

addressed him before Officer Gollette grabbed appellant’s

arm. After refreshing his recollection with his written 

report, Officer Carreon testified that before grabbing

appellant, Officer Gollette had told appellant to turn around 

and submit to handcuffs. 

After Officer Carreon testified that he had not seen any 

contraband on appellant during the incident, appellant’s 

counsel confronted him with his preliminary hearing 

testimony, in which he stated that after Officer Gollette 

grabbed appellant’s arm, appellant tried to put “some pieces” 

into his mouth. Officer Carreon did not recall saying this, 

but did not dispute that this was his prior testimony, and 

could not explain the difference between that testimony and 

his current one. Similarly, Officer Carreon testified in 

response to questioning that from the time appellant fell to 

the ground until he was handcuffed, appellant never got on 

his knees. But he confirmed that at the preliminary 

hearing, he testified that appellant’shead struck his nose 

after appellant “f[ell]to his knees.” 

C. The Jury’s Verdict and the Trial Court’s Sentence

Following trial, the jury found appellant guilty of one

battery charge, relating to the biting of Officer Enriquez, and 

acquitted him of the weapon-possession charge. The jury 

was unable to reach verdicts on the charges relating to 
7

Officers Rosas and Carreon, and the trial court declared a 

mistrial as to those counts and later granted the

prosecution’s motion to dismiss them. 

At a bifurcated proceeding, appellant admitted the 

prior strike allegations. At sentencing, the trial court 

granted in part appellant’s Romero motion, striking two of 

his prior strikes and declining to strike the remaining two, 

including the murder conviction. The court then sentenced 

appellant to 25 years to life in prison under the Three 

Strikes Law. Appellant timely appealed. 

DISCUSSION

A. Ruling on Pitchess Motion

Initially, appellantasks that we review the sealed

record of the trial court’s in-camera Pitchess proceeding for 

any error. The Attorney General does not object and, having 

done so, we discern no error. 

1. Background

Before trial, appellant, who was then representing 

himself, filed a Pitchess motion, seeking disclosure of 

personnel records concerning Officers Gollette, Carreon, 

Enriquez, Rosas, and Montoya. In his accompanying 

declaration, appellant asserted that the first four officers 

used unnecessary and excessive force against him and later 

filed a false report, and that Officer Montoya filed a false 

report regarding his search of appellant’s cell. The court 

found good cause to hold an in-camera hearing to review 
8

responsive records for every officer except Officer Montoya.2 

Following the in-camera hearing, the court ordered 

disclosure of certain information to appellant’s 

court-appointed investigator. 

2. Analysis

A criminal defendant is entitled to the discovery of 

confidential law enforcement personnel records if the 

information contained therein is relevant to his ability to 

defend against the charge. (Pitchess, supra, 11 Cal.3d at 

537-538; Pen. Code, §§ 832.7, 832.8; Evid. Code, §§ 

1043-1045.) To obtain those records, the defendant must 

submit an affidavit showing good cause for the discovery. 

(Evid. Code, § 1043, subd. (b)(3).) Discoverable information 

is “limited to instances of . . . misconduct related to the 

misconduct asserted by the defendant.” (Warrick v. Superior 

Court (2005) 35 Cal.4th 1011, 1021; see also California 

Highway Patrol v. Superior Court (2000) 84 Cal.App.4th 

1010, 1021 [“documentation of past officer misconduct which 

is similar to the misconduct alleged by defendant in the 

pending litigation is relevant and therefore subject to 

discovery” (italics omitted)].)

“‘When a defendant shows good cause for the discovery 

of information in an officer’s personnel records, the trial 

court must examine the records . . . to determine if any 

information should be disclosed.’” (People v. Anderson (2018) 

2 Appellant does not challenge the court’s decision not to 

review Officer Montoya’s personnel records. 
9

5 Cal.5th 372, 391.) “‘[T]o protect the officer’s privacy, the 

examination of documents and questioning of the custodian 

should be done in camera . . . , and the transcript of the in 

camera hearing and all copies of the documents should be 

sealed.’” (Ibid.)

An appellate court examines the record made by the 

trial court “to determine whether the trial court abused its 

discretion in denying a defendant’s motion for disclosure of 

. . . personnel records.” (People v. Prince (2007) 40 Cal.4th 

1179, 1285; accord, People v. Samayoa (1997) 15 Cal.4th 795, 

827 [“Trial courts are granted wide discretion when ruling 

on motions to discover . . . officer personnel records”].) At 

appellant’s request, we have reviewed the sealed transcript 

of the in-camera hearing and conclude that the trial court 

did not abuse its discretion in determining what information 

was discoverable.3

B. Challenges to the Conviction

Appellant mounts several challenges to his conviction, 

arguing the court erred in: (1) excluding proffered testimony 

regarding the officers’ prior misconduct; (2) denying a mid3 Appellant urges us to consider changes to disclosure law 

made by the recently enacted Senate Bill No. 16 (2020-2021 Reg. 

Sess.; SB 16.), which he contends applies retroactively to his case. 

Among other changes, SB 16 removed a statutory time limit on 

incidents subject to disclosure. (Legis. Counsel’s Dig., Sen. Bill 

No. 16.) We need not decide whether SB 16 applies retroactively, 

as it would not affect our conclusion regarding the trial court’s 

ruling on appellant’s disclosure request. 
10

trial continuance to allow him to secure the presence of 

certain witnesses; and (3) refusing to instruct the jury on 

excessive force and self-defense. He further contends the 

cumulative prejudicial effect of these alleged errors warrants 

reversal. As explained below, we find no reversible error.

1. The Exclusion of Proffered Testimony regarding 

the Officers’ Alleged Prior Misconduct

a. Background

After appellant’s investigator received the 

court-ordered disclosure of certain information regarding 

prior incidents involving the officers, appellant provided 

witness statements for four witnesses: state prison inmates 

Horatio Kimbrough, Rigoberto Salido, James Fisher, and 

Lawrence Jones.4 Kimbrough, Salido, and Lawrence’s 

proposed testimony concerned allegations of prior instances 

of misconductinvolving Officer Gollette, whereasFisher’s 

proposed testimony related to allegations of prior misconduct

by Officer Enriquez. The prosecution filed a motion in 

limine to exclude the proffered testimony, arguing that it 

was unduly prejudicial. 

Appellant opposed the prosecution’s motion. Initially, 

he claimed in his written opposition that the proffered 

testimony was necessary to support his theory of 

self-defense, and would establish his reasonable fear of 

4 Because appellant and Lawrence share a last name, we use 

Lawrence’s first name to avoid confusion. 
11

Officer Gollette. At the hearing on the motion, shortly before 

the start of trial, appellant denied that he ever “struck,” 

“harm[ed],” or even “resisted” the officers, but after the court

noted that these assertions did not support a claim of 

self-defense, appellant reverted to claiming that he had 

defended himself against the officers. Appellant told the 

court that he wanted “to show that there’s an ongoing issue 

with Gollette,” and suggested that the inmate witnesses’ 

testimony regarding specific instances of prior misconduct by 

the officers was relevant to his state of mind. 

In response to the court’s questioning regarding his 

prior knowledge of the particular instances, appellant 

related that at the time of his alleged crimes, he was aware 

of Fisher’s allegations against Officer Enriquez, and had 

personally spoken with Fisher about the relevant incident. 

He was unaware of either Kimbrough’s incident with Officer 

Gollette, or the incident involving Salido, which occurred 

after appellant’s alleged offenses. 

After the prosecutor argued that the proffered 

testimony was inadmissible propensity evidence under 

Evidence Code section 1101,the trial court noted that 

Evidence Code section 1103 permitted the admission of 

propensity evidence concerningthe victim of the offense. 

However, the court further observed that Officer Gollette, 

the subject of proposed testimony by Kimbrough, Salido, and 

Lawrence, was not a victim of any offense with which 

appellant was charged.

As discussed further below, in response to the trial 

court’s inquiry regarding the inmate witnesses’ availability, 
12

appellant relayed that he had not sought removal orders to 

secure their attendance.5 The court observed that the 

prosecution’s motion could be moot if the witnesses were not

available to testify, but proceeded to consider the matter. 

Following its discussion with the parties, the court 

granted the motion to exclude the proffered testimony by 

Kimbrough and Salido, reasoning that (1) this was 

propensity evidence to which Evidence Code section 1103 did 

not apply because it concerned a non-victim, and (2) their 

testimony was not probative of appellant’s state of mind at 

the time of his alleged offenses, as he was then unaware of 

the incidents involving them. The court additionally invoked 

Evidence Code section 352 as a basis to exclude the 

testimony of these witnesses. 

The court denied the motion as to Fisher, whose 

proffered testimony both concerned a named victim (Officer 

Enriquez) and was known to appellant at the time of his 

alleged offenses. As to Lawrence, the court reserved its 

ruling at appellant’s request, and stated that unless notified 

otherwise, it would presume appellant did not intend to 

present his testimony. Appellant never notified the court 

that he intended to call Lawrence, and as discussed further 

below, he never secured Fisher’s attendance at trial. 

Subsequently, in discussing jury instructions with the court, 

appellant’s counsel said he anticipated appellant would 

5 As described below, the court and the prosecutor agreed 

that once a removal order was delivered, it typically took three 

weeks to bring the relevant inmate before the court. 
13

testify that during the incident, appellant felt that he was 

being choked, “which caused his body to instinctively move 

in response to . . . the choking sensation.”

b. Analysis

The exclusion of the proposed testimony of Kimbrough 

and Salido provides no basis for reversal. We review the 

court’s evidentiary rulings for abuse of discretion. (People v. 

Smithey (1999) 20 Cal.4th 936, 973.) “Specifically, we will 

not disturb the trial court’s ruling ‘except on a showing the 

trial court exercised its discretion in an arbitrary, capricious, 

or patently absurd manner that resulted in a manifest 

miscarriage of justice.’” (People v. Goldsmith (2022) 59 

Cal.4th 258, 266.) A miscarriage of justice results only if “it 

is reasonably probable that a result more favorable to the 

appealing party would have been reached in the absence of 

the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) 

Evidence Code section 1101 makes evidence of a 

person’s character inadmissible when offered to prove his or 

her conduct on a specified occasion. (Evid. Code, § 1101, 

subd. (a).) Evidence Code section 1103, subdivision (a), 

provides an exception to that rule, stating, “In a criminal 

action, evidence of the character . . . of the victim of the 

crime for which the defendant is being prosecuted is not 

made inadmissible by Section 1101 if the evidence is: [¶] (1) 

Offered by the defendant to prove conduct of the victim in 

conformity with the character . . . .” 

As the trial court noted, the proffered testimony 

regarding specific incidents involving inmates Kimbrough 
14

and Salido concerned Officer Gollette, who was not a victim 

of the offenses with which appellant was charged. Thus, 

Evidence Code section 1101 precluded use of their testimony 

to establish that Officer Gollette used excessive force on 

appellant, and the exception in Evidence Code section 1103

did not apply.

Further, as the trial court explained,the incidents 

involving these two witnesses could not have affected

appellant’s state of mind at the time of the alleged offenses, 

as he was unaware of the incident involving Kimbrough, and 

the incident involving Salido had not yet occurred. (See 

People v. Tafoya (2007) 42 Cal.4th 147, 165-166 [evidence 

that person was dangerous was relevant to defendant’s claim 

of self-defense only if defendant knew of person’s reputation 

for dangerousness].) 

To the extent appellant suggests he need not have had 

prior knowledge of Kimbrough and Salido’s specific 

allegations because they would have provided generalized 

testimony regarding Officer Gollette’s violent reputation -- a 

claim he did not make during his lengthy colloquy with the 

trial court -- we need not decide the issue, as any error would 

have been harmless. The record is undisputed that 

appellant had done nothing to secure the witnesses’ 

attendance at trial. As noted, even as the trial was about to 

commence, appellant had not initiated the process to obtain 

removal orders for the inmate witnesses. Notably, appellant 

never called Fisher, the inmate witness he was permitted to 

call, and whose testimony concerned the victim of one of the 

charged offenses. 
15

Moreover, under the theories appellant, and later, his 

counsel, presented to the court, his state of mind as to

Officer Gollette was not central to the assessment of his 

biting of Officer Enriquez. Appellant told the court that he 

was “put in a chokehold and taken down to the ground,” and 

that this was “where self-defense [came] in with Enriquez.”

Subsequently, appellant’s counsel told the court he 

anticipated appellant would testify that during the incident, 

he felt he was being choked, which caused him to 

“instinctively move in response to . . . the choking sensation.” 

If appellant had testified that he bit Officer Enriquez, either 

as an involuntary reaction or in an effort to defend himself,

any claimed apprehension of Officer Gollette when the latter 

grabbed his arm would have had little bearing on his defense 

to the relevant biting charge.

6 Accordingly, we find no 

reversible error.

7

6 Appellant complains that the trial court erroneously “ruled” 

that he had not articulated a valid theory of self-defense. The 

court made no such ruling. While the court remarked that 

appellants’ assertions that he neither struck the officers nor 

resisted them did not support a claim of self-defense, the 

exclusion of the proffered testimony of Kimbrough and Salido was 

not based on its assessment of appellant’s intended defense. As 

noted, the court permitted appellant to call Fisher, whose 

testimony was similarly intended to support appellant’s theory of 

self-defense. 

7 To the extent appellant purports to challenge the trial 

court’s exclusion of the proffered testimony of Fisher and 

Lawrence, he misreads the record. The court denied the motion 

as to Fisher. As to Lawrence, at appellant’s request, the court 

(Fn. is continued on the next page.)
16

2. The Denial of a Mid-Trial Continuance

a. Background

On October 20, 2020, during the hearing on the 

prosecution’s motion to exclude appellant’s proffered 

witnesses, including Fisher, the trial court asked appellant if 

those witnesses were available and if they had been 

transferred to the county’s custody for the trial. Appellant 

replied that he had the subpoenas with him. When the court 

explained that the presence of prison inmates was secured 

through removal orders rather than by subpoenas and asked 

if the required process had taken place, appellant stated that 

it had not. In response to the court’s inquiry, the courtroom 

clerk stated that it would take at least 24 hours to get a 

removal order to the relevant authority, butthe prosecutor 

confirmed the court’s belief that it typically took three weeks 

to bring the inmate before the court. After the court ruled on 

the prosecution’s motion, the parties proceeded to jury 

selection. 

On October 28, following the close of the prosecution’s

case-in-chief, the prosecutor informed the court that 

although appellant had asked the prosecution to bring 

Officer Gollette to court for appellant’s case, the officer was 

not present because neither side had subpoenaed him. After 

appellant, who was still representing himself, called and 

examined three other officers, he informed the court that one 

reserved a ruling pending further action by appellant, yet 

appellant never raised the subject of Lawrence’s testimony again. 
17

week earlier, he had prepared “subpoenas”for his 

investigator to deliver, that his investigator had just 

received them that day, and that he was “waiting on him.” 

The court responded: “Well, that’s a problem ’cause my guess 

is there’s no way he could have had [the witnesses] served 

and here now. [¶]. . .[¶] . . . The court can’t interfere because 

that’s not my place. You’re representing yourself. . . . [W]e 

cannot delay the trial because it wasn’t until today that 

you’re trying to serve your subpoenas.” 

Shortly after this discussion, appellant asked for his 

standby counsel to take over his representation. Counsel 

then assumed appellant’s representation, calling and 

questioning multiple witnesses. Neither Fisher nor Officer 

Gollette testified. At sentencing, appellant’s counsel 

mentioned that after he took over appellant’s representation, 

he made no effort to call Officer Gollette. Counsel then 

agreed with the court’s statement that the officer was 

available, and that counsel “chose not to call him” because he 

intended to pointto the prosecution’s failure to call “the most 

obvious person.” 

b. Analysis

Construing the trial court’s statement that it would not 

“delay the trial” as a denial of a continuance, we conclude 

appellant has shown no reversible error. “‘A motion for 

continuance should be granted only on a showing of good 

cause. [Citation.]’ [Citation.] To support a continuance 

motion to secure a witness’s attendance at trial, a showing of 

good cause requires a demonstration, among other things, 
18

that the defendant exercised due diligence to secure the 

witness’s attendance.” (People v. Wilson (2005) 36 Cal.4th 

309, 352 (Wilson).) A claim that the denial of a continuance 

violated the defendant’s constitutional rights is subject to a 

similar requirement. (See People v. Jenkins (2000) 22 

Cal.4th 900, 1039-1040 [“if the defendant cannot show he or 

she has been diligent in securing the attendance of 

witnesses, . . . the court’s ruling denying a continuance does 

not support a claim of error under the federal 

Constitution”].) “The standard of review for a trial court’s 

denial of a continuance motion is abuse of discretion.” 

(Wilson, supra, at 352.)

Appellant contends a continuance was necessary for 

him to call Fisher and Officer Gollette. It was appellant, 

however, who failed to exercise due diligence in attempting 

to secure Fisher’s attendance. The record does not reflect 

that appellant ever initiated the process to have Fisher, a 

state prison inmate, transported to the court. As the trial 

court noted, securing a state inmate’s attendance required a 

removal order. (See People v. Garcia (2008) 160 Cal.App.4th 

124, 126 [“Under our law, a witness incarcerated in state 

prison is brought to a criminal court to testify by means of a 

removal order issued pursuant to Penal Code section 2621 or 

1567”]; Sink, California Subpoena Handbook (Dec. 2022) 

§ 2:2 [“The testimony of a state prisoner is obtainable only by 

court order . . .; it is not obtainable by subpoena . . .”].) Yet 

appellant reported only that he had prepared “subpoenas”

for his appointed investigator to deliver, and the record does 
19

not reflect whether Fisher was even included in those 

subpoenas. 

Moreover, even assuming appellant’s documents

included a removal order for Fisher, he reported preparing

those documents one week before October 28, meaning after 

the start of trial. This was a particularly late effort given 

the potentially lengthy process required to bring a state 

inmate before the court. Appellant faults “the difficulties 

caused by the pandemic, the unavailability of [his] courtappointed investigator, [and] the delayed release of witness 

names” for his delay in attempting to secure Fisher’s 

appearance at trial. But by his own admission, appellant 

was aware of Fisher’s identity and his allegations against 

Officer Enriquez long before the trial. Thus, appellant’s late 

effort to secure Fisher’s attendance fell far short of 

establishing due diligence. (See Wilson, supra, 36 Cal.4th at

352 [capital defendant did not exercise due diligence in 

attempting to obtain impeachment witnesses for penalty 

phase of trial where he failed to subpoena them despite 

knowing about prosecution witnesses’ testimony long before 

penalty phase]; People v. Lewis and Oliver (2006) 39 Cal.4th 

970, 1035-1036 [defendant failed to show due diligence 

where counsel had two years to prepare for trial and

announced ready for trial, but then requested continuance to 

locate witness]; see also Levenson & Ricciardulli, Cal. 

Criminal Procedure (The Rutter Group 2022) § 21:3

[“Waiting until the morning of trial to try to locate a witness 

is not due diligence”].) To the extent appellant did not seek 

to ensure Fisher’s attendance in a timely fashion because he 
20

had been unaware of the necessary process, we note that 

self-represented defendants are “held to the same standard 

of knowledge of law and procedure as is an attorney.” 

(People v. Clark (1990) 50 Cal.3d 583, 625.) 

As for Officer Gollette, appellant’s counsel confirmed at 

sentencing that after stepping in to represent appellant, he 

chose not to call the officer for tactical reasons, though 

counsel knew he was available. Because nothing precluded 

appellant from calling Officer Gollette, he cannot establish 

prejudice from the denial of a continuance, even assuming 

any error. (See People v. Zapien (1993) 4 Cal.4th 929, 972 

[denial of continuance not reversible absent prejudice to 

defendant].) 

3. The Denial of Instructions on Excessive Force 

and Self-Defense

a. Background

While discussing jury instructions with the trial court 

during appellant’s case-in-chief, appellant’s counsel asked 

the court if it would instruct the jury with CALCRIM Nos. 

2671 (Lawful Performance: Custodial Officer) and 3470 

(Right to Self-Defense or Defense of Another 
21

(Non-Homicide)) if appellant chose not to testify.

8 The court 

responded that it would not.9

8 CALCRIM No. 2671 provides: “The People have the burden 

of proving beyond a reasonable doubt that [the custodial officer]

was lawfully performing (his/her) duties as a custodial officer. . . . 

[¶] A custodial officer is not lawfully performing his or her duties 

if he or she is using unreasonable or excessive force in his or her 

duties. [¶] . . . [¶] If a custodial officer uses unreasonable or 

excessive force while (restraining a person/ [or] overcoming a 

person’s resistance . . .), that person may lawfully use reasonable 

force to defend himself or herself.”

CALCRIM No. 3470 provides, in relevant part: “Selfdefense is a defense to <insert list of pertinent crimes charged>. 

The defendant is not guilty of [those crimes] if (he/she) used force 

against the other person in lawful [self-defense]. The defendant 

acted in lawful [self-defense] if: [¶] 1. The defendant reasonably 

believed that (he/she . . .) was in imminent danger of suffering 

bodily injury [or was in imminent danger of being touched 

unlawfully]; [¶] 2. The defendant reasonably believed that the

immediate use of force was necessary to defend against that 

danger; [¶] AND [¶] 3. The defendant used no more force than 

was reasonably necessary to defend against that danger.”

9 In discussing appellant’s defense theory, his counsel told 

the trial court that he anticipated appellant would testify that 

“he never affirmatively tried to strike or headbutt or kick or bite 

a corrections officer” but “was feeling pain, physical pain being 

inflicted on him[,] as well as the possibility of being suffocated, 

being choked, which caused his body to instinctively move in 

response to the pain inflicted on him and the choking sensation.” 

The court expressed doubt that self-defense would apply based on 

this testimony, but said it would “look at it.” The court and the 

parties proceeded to discuss the application of self-defense to 

appellant’s anticipated testimony, after which the court stated it 

did not believe the proffered testimony would support the 

defense, but said it would “spend some time to review it.”
22

After consulting with appellant, counsel informed the 

court that appellant would not testify, but urged the court to 

grant those instructions because “depending on how [the 

jurors] interpret the testimony of the corrections officers, 

they may feel that [appellant] was acting in self-defense and 

that . . . the corrections officers were exceeding their lawful 

performance.” The court denied counsel’s request, finding 

that “there has not been substantial evidence to support that 

the officers were doing anything other than acting in their 

lawful performance of their duty that would warrant the 

2671 instruction or . . . [that] there’s an issue of self-defense

. . . .” Subsequently, in instructing the jury on the elements 

of battery on a non-confined person by a prisoner under 

CALCRIM No. 2723, the trial court omitted a bracketed 

portion of the instruction relating to correctional officers’ use 

of excessive force.10

b. Analysis

The trial court correctly refused to instruct the jury on 

self-defense and excessive force. “A trial court must give a 

requested instruction only if it is supported by substantial 

evidence, that is, evidence sufficient to deserve jury 

consideration.” (People v. Marshall (1997) 15 Cal.4th 1, 

10 The relevant omitted portion of CALCRIM No. 2723 states: 

“A custodial officer is not lawfully performing his or her duties if 

he or she is using unreasonable or excessive force in his or her 

duties. . . .”
23

39-40.) “‘[U]nsupported theories should not be presented to 

the jury.’” (Id. at 40.) 

The evidence at appellant’s trial did not support 

instructions on excessive force and self-defense. The officers 

testified that after being tasked with searching appellant’s 

cell, they located appellant by the supply room. Officer 

Gollette instructed appellant to submit to handcuffs, which 

was standard procedure when an inmate’s cell was searched. 

When appellant did not comply and attempted to go into the 

supply room, Officer Gollette grabbed his arm. Appellant 

attempted to break away, twisting and turning his body, 

despite the officers’ repeated instructions that he stop 

resisting. Officer Enriquez then brought appellant to the 

ground, as it was safer. Appellant’s head hit the ground, but 

he continued to resist the officers. The officers continued to 

try to restrain appellant, and Officer Enriquez was holding 

appellant’s right hand close to appellant’s chin, when 

appellant bit the officer’s hand. 

Nothing in this evidence supported a claim of excessive 

force on the officers’ part or provided a basis for a claim of 

self-defense. There was no evidence that officers struck 

appellant or employed any amount of force unnecessarily. 

The evidence at trial showed only that the officers used 

sufficientforce to stop and restrain a resisting inmate, as 

they were entitled to do. (Cf. Golick v. State of California

(2022) 82 Cal.App.5th 1127, 1138-1139 [“‘“the right to make 

an arrest or investigatory stop necessarily carries with it the 

right to use some degree of physical coercion or threat 

thereof to effect it.’” [Citation.] Thus, under California law, 
24

a peace officer ‘“‘may use reasonable force to make an arrest, 

prevent escape or overcome resistance, and need not desist 

in the face of resistance’”’”]; Lawrence v. Kenosha County

(7th Cir. 2004) 391 F.3d 837, 843 [where plaintiff refused to 

produce his driver’s license at officer’s request and his 

vehicle was in motion as he argued with officer, it was not 

excessive force for officer to grab plaintiff’s arm and attempt 

to pull him out of vehicle].) Nothing in the facts presented at 

trial could have justified appellant’s biting of Officer 

Enriquez. 

Appellant claims the evidence supported a finding that 

the officers did not even announce their presence before 

Officer Gollette “initiated the physical encounter” with him. 

We disagree. In the testimony appellant cites, Officer 

Carreon testified that neither he nor Officer Gollette 

announced their presence before “getting to [appellant].” 

Officer Carreon also testified that either he or Officer 

Gollette had asked appellant to approach them or otherwise

addressed him before Officer Gollette grabbed his arm. And 

after refreshing his recollection with his written report, 

Officer Carreon testified that before taking hold of appellant, 

Officer Gollette had told appellant to turn around and 

submit to handcuffs. There was no support for a finding that 

the officers had pounced on appellant without warning. 

That Officer Carreon’s testimony differed in some respects 

from his testimony at the preliminary hearing, as appellant 

emphasizes, similarly fails to support a claim of excessive 

force by the officers. (See People v. Ponce (1996) 44 

Cal.App.4th 1380, 1389-1390 [inconsistencies in testimony of 
25

victim or officers did not constitute substantial evidence that 

defendant had been framed].) Accordingly, the trial court 

did not err in refusing to instruct the jury on excessive force 

and self-defense.11

C. Challenges to the Sentence

Challenging his third-strike sentence of 25 years to life, 

appellant claims the trial court abused its discretion in 

denying his Romero motion in part. Alternatively, he 

contends his sentence is unconstitutionally excessive. As 

explained below, we find no abuse of discretion in the trial 

court’s refusal to strike two of appellant’s prior strikes, and

no constitutional infirmity in appellant’s sentence. 

1. Background

In its sentencing memorandum, the prosecution noted 

appellant was facing a mandatory third-strike sentence of 25 

years to life, and argued that the circumstances warranted 

11 Appellant mistakenly asserts that the trial court ruled it 

would not instruct on self-defense unless he testified that his 

movements during the incident were an intentional act of 

defense. While expressing skepticism regarding the validity of 

appellant’s proffered theory, the court said that it would consider 

the issue, and made no final ruling whether appellant’s 

anticipated testimony, as presented by counsel, would support a 

self-defense instruction.

Because any error at appellant’s trial had no prejudicial 

tendency, we need not address his additional contention that the 

cumulative prejudicial effect of the errors requires reversal. 
26

the application of the Three Strikes Law in his case.12 In 

detailing appellant’s aggravating factors, the prosecution 

noted his lengthy criminal history: alongside multiple 

property offenses and parole violations, appellant committed 

misdemeanor burglary and misdemeanor battery on a 

domestic partner in 1999, three felony burglaries in 2000, 

second degree murder in 2005 -- one month after he was 

released from prison for prior offenses -- and firearm-related 

offenses and resisting an officer in 2006. Appellant was 

serving concurrent sentences of 48 years to life and 103 

years to life at the time of his current offense. The 

prosecution also pointed to appellant’s multiple disciplinary 

violations during his current incarceration, which began in 

2009. Finally, the prosecution asserted that while acting as 

his own attorney, appellant made false statements to the 

court when he stated that he never struck or used physical 

force against any of the officers. 

Attached as exhibits to the sentencing memorandum 

were, inter alia, police reports and the appellate opinion 

relating to appellant’s murder conviction. As relevant here, 

the exhibits revealed that appellant was a member of a

White supremacist prison gang, and that before the murder, 

the gang had deemed appellant’s victim a snitch and placed

a “hit” on him. 

12 The prosecution later moved to dismiss appellant’s prior 

strikes based on Los Angeles District Attorney’s Special Directive 

20-08, but in response to the court’s inquiry, the prosecutor 

stated there were no specific facts relating to appellant’s 

background that would warrant striking his priors. 
27

Appellant’s counsel filed a Romero motion, asking the 

court to strike his prior strikes because they were remote in 

time. At the sentencing hearing, counsel highlighted 

appellant’s relative youth at the time of his prior offenses --

appellant committed the felony burglaries when he was 19

years old, the murder when he was 23, and the 

firearm-related offenses and resisting an officer when he was 

25. Counsel also emphasized that appellant had caused 

Officer Enriquez only a minor injury and argued that a 

third-strike sentence would be unconstitutionally excessive. 

The court granted appellant’s Romero motion in part, 

striking two of the three felony burglaries, which were all 

committed on the same day. However, the court declined to 

strike the convictions for the remaining felony burglary and 

the murder, finding that appellant was not outside the spirit 

of the Three Strikes Law. Rejecting the notion that 

appellant’s current offense was de minimis, the court 

stressed the dangers involved in an inmate’s use of force 

against officers, potentially drawing in other inmates and 

officers and creating significant risks of injury to all 

involved. The court then surveyed appellant’s criminal 

history, noted the circumstances surrounding his 

commission of murder in 2005, and stated that appellant 

was precisely the kind of defendant for whom the Three 

Strikes Law was designed. 

During a colloquy with appellant’s counsel, who argued 

the officers had instigated the incident, the court stated that 

the jury had found the officers to have been engaged in a 

lawful act at the time of the incident. The court also 
28

expressed its view that at various times appellant had been 

dishonest with the court, denying he ever resisted officers’ 

efforts to place him in handcuffs, stating he never “harmed” 

any officer, and denying using physical force against the 

officers. After denying appellant’s Romero motion in part, 

the court imposed the mandatory third-strike sentence. 

2. Analysis

a. Denial in Part of Romero Motion

The trial court acted within its discretion in denying in 

part appellant’s Romero motion. A trial court abuses its 

discretion by declining to strike a prior strike only if the 

defendant so clearly falls outside the spirit of the three 

strikes scheme that no reasonable person could disagree. 

(See People v. Carmony (2004) 33 Cal.4th 367, 376 (Carmony

I).) Only extraordinary circumstances warrant a finding 

that a defendant falls outside the spirit of the three strikes 

scheme. (Ibid.) Accordingly, “the circumstances where no 

reasonable people could disagree that the [defendant] falls 

outside the spirit of the three strikes scheme must be even 

more extraordinary.” (Id. at 378.)

The circumstances here were not so extraordinary. 

Appellant had a lengthy criminal history that included both 

property and violent offenses, with generally increasing 

severity, as well as multiple parole violations. Just one 

month after being released from custody for prior offenses, 

appellant murdered a person targeted by appellant’s White 

supremacist prison gang. While serving a life sentence for 
29

this and other offenses, appellant committed multiple 

disciplinary violations, as well as his present offense, in 

which he bit a correctional officer attempting to restrain 

him. Given these circumstances, the trial court reasonably 

concluded appellant did not fall outside the spirit of the 

three strikes scheme. (See Carmony I, supra, 33 Cal.4th at

376.) 

Appellant contends the court erred in denying his 

motion because it: (a) incorrectly stated that the jury found

the officers’ actions were lawful; (b) wrongly found that he 

lied in claiminghe never struck the officers; (c) improperly 

relied on hearsay regarding his history of criminal and 

wrongful conduct; and (d) failed to consider his youth at the 

time of his prior offenses. We find none of these contentions 

persuasive. 

First, appellant notes that, contrary to the trial court’s 

statement, the jury did not find that the officers’ actions 

were lawful, as the jury was not asked to make any finding 

on the issue of excessive force. But as discussed above, the 

evidence did not support a finding that the officers used 

excessive force against appellant. Appellant offers no 

explanation how the court’s imprecise reference to a finding 

by the jury might have prejudiced him under these 

circumstances. (See People v. Mena (2012) 54 Cal.4th 146, 

162 [no reversal absent showing that it is reasonably 

probable more favorable result would have been obtained 

absent error].)

Second, appellant asserts that, contrary to the trial 

court’s finding, his repeated insistence that he never struck 
30

any officer was proved true at trial. We disagree. As the 

court noted, appellant had at various times denied any use of 

force against the officers, denied “harm[ing]” any officer, and 

denied resisting efforts to place him in handcuffs. Given the 

jury’s finding that appellant assaulted Officer Enriquez, who 

was attempting to restrain him, by biting the officer’s hand, 

the court had ample basis to discredit appellant’s assertions. 

Third, appellant claims the exhibits to the People’s 

sentencing memorandumconstituted hearsay and were thus 

inadmissible. Initially, we observe that appellant did not 

object to the relevant evidence below, and he therefore has

forfeited this claim on appeal. (People v. Bryant, Smith and 

Wheeler (2014) 60 Cal.4th 335, 409 [failure to object to 

challenged evidence below constitutes forfeiture].) 

Moreover, at a sentencing proceeding, the court may 

consider hearsay if there is a basis for believing the 

information is reliable. (People v. Sledge (2017) 7 

Cal.App.5th 1089, 1095.) Appellant offers no argument that 

the information contained in the documents attached to the 

prosecution’s sentencing memorandumwas unreliable. 

Finally, appellant contends the court failed to consider 

his youth at the time of his prior offenses. He offers no

support for this assertion. At the sentencing hearing, 

defense counsel highlighted appellant’s relative youth at the 

time of his prior offenses, and nothing suggests the court did 

not take this factor into account. That a court focused its 

explanatory comments on certain aggravating factors does 

not suggest it considered only those factors. (People v. Myers

(1999) 69 Cal.App.4th 305, 310.) “While a court must 
31

explain its reasons for striking a prior [citations], no similar 

requirement applies when a court declines to strike a prior 

[citation].” (In re Large (2007) 41 Cal.4th 538, 550.) The 

court was not compelled to find appellant’s relative youth at 

the time of his priors dispositive, particularly given the 

severity of his prior offenses and his continued violations 

while in prison, which strongly suggested he “did not add 

maturity to age.” (People v. Williams (1998) 17 Cal.4th 148,

163 [trial court abused its discretion in granting Romero

relief, despite defendant’s youth at time of prior strikes,

because defendant persisted in criminal activity].)

b. Constitutionality of the Sentence 

We reject appellant’s contention that his sentence was 

unconstitutionally excessive. Under the California 

Constitution, a punishment is unconstitutionally excessive if 

“it is so disproportionate to the crime for which it is inflicted 

that it shocks the conscience and offends fundamental 

notions of human dignity.”13 (In re Lynch (1972) 8 Cal.3d 

410, 424.) In reviewing a statutorily mandated sentence for 

excessiveness, a reviewing court must grant “‘“the broadest 

discretion possible”’ [citation]to the legislative judgment 

respecting appropriate punishment,” accounting for the fact 

13 Although appellant asserts both federal and state 

constitutional challenges to his sentence, we analyze his claims 

exclusively under the California Constitution, as he does not 

contend that the federal Constitution offers him any additional 

protection.
32

that “‘[t]he choice of fitting and proper penalties is not an 

exact science, but a legislative skill involving an appraisal of 

the evils to be corrected, the weighing of practical 

alternatives, consideration of relevant policy factors, and 

responsiveness to the public will . . . .” (In re Palmer (2021) 

10 Cal.5th 959, 972 (Palmer).) Thus, “[o]nly in the rarest of 

cases could a court declare that the length of a sentence 

mandated by the Legislature is unconstitutionally 

excessive.” (People v. Martinez (1999) 76 Cal.App.4th 489, 

494.) 

Our Supreme Court “has distilled three analytical 

techniques to aid [the] deferential review of excessiveness 

claims: (1) an examination of the nature of the offense and 

the offender, with particular attention to the degree of 

danger both pose to society; (2) a comparison of the 

punishment with the punishment California imposes for 

more serious offenses; and (3) a comparison of the 

punishment with that prescribed in other jurisdictions for 

the same offense.” (Palmer, supra, 10 Cal.5th at 973.) 

Appellant’s arguments focus only on the first of these 

techniques, and we therefore do the same in our analysis.14

14 In his opening brief, appellant compares his sentence to the 

ordinary punishments for his offense of battery on a non-confined 

person by a prisoner (§ 4501.5 [two, three, or four years]), and the 

lesser offenses of battery on a custodial officer (§ 243, subd. (c)(1) 

[16 months, or two or three years]) and simple battery (§ 243, 

subd. (a) [maximum of six months]). These comparisons are 

inapposite, as they do not concern more severe offenses (see 

Palmer, supra, 10 Cal.5th at 973), and they contrast appellant’s 

(Fn. is continued on the next page.)
33

Neither the nature of the offense nor appellant’s 

circumstances suggest his sentence is so disproportionate as 

to shock the conscience. Initially, we do not share 

appellant’s view of his current offense as “relatively minor.” 

Appellant bit a correctional officer while resisting officers’ 

efforts to restrain him, offering such physical resistance that 

five officers were required to subdue him.15 Moreover, “‘the 

three strikes law punishes not only [appellant’s] current 

offenses, but also his recidivism.’” (Sullivan, supra, 151 

Cal.App.4th at 571.) “‘California statutes imposing more 

severe punishment on habitual criminals have long 

withstood constitutional challenge.’” (Ibid.) As noted, 

appellant’s lengthy criminal history included a murder 

third-strike sentence with the punishments applicable to persons 

who suffered no prior strike. (See People v. Sullivan (2007) 151 

Cal.App.4th 524, 571 (Sullivan) [“‘Because the Legislature may 

constitutionally enact statutes imposing more severe punishment 

for habitual criminals,’ we cannot logically compare appellant’s 

‘punishment for his [current offenses,] which includes his 

recidivist behavior, to the punishment of others who have 

committed more serious crimes, but have not qualified as repeat 

felons’”].)

15 People v. Carmony (2005) 127 Cal.App.4th 1066 (Carmony

II), cited by appellant, is distinguishable. There, the Court of 

Appeal held unconstitutional a 25-year-to-life sentence under the 

Three Strikes Law for violation of sex offender registration 

requirements, where the defendant “had properly registered his 

current residential address and demonstrated a good faith 

attempt to comply with the sex offender registration law[,] but 

due to a negligent oversight had failed to update his registration 

within five working days of his birthday.” (In re Coley (2012) 55 

Cal.4th 524, 531 [discussing Carmony II].)
34

conviction, and even the life sentenceshe was serving at the 

time of his current offense proved insufficient to deter him 

from reoffending. 

Appellant stresses his prior offenses’ remoteness and 

his relative youth at the time. But neither factor establishes 

that his sentence is unconstitutional. That since 2006,

appellant committed only the current offense -- as well as 

multiple disciplinary violations in prison -- is unremarkable, 

given that he has been continuously incarcerated since 2009. 

(Cf. People v. Vasquez (2021) 72 Cal.App.5th 374, 390 

[reversing trial court’s striking of prior strike, and stating, 

“In analyzing whether a defendant’s prior criminal conduct

was ‘remote,’ a trial court should consider whether the 

defendant ‘was incarcerated a substantial part of the 

intervening time and thus had little or no opportunity to 

commit’ additional crimes”].) As to his age at the time of his 

priors, appellant cites no authority, and we are aware of 

none, holding that the Legislature may not treat an offender 

as a recidivistif the offender committed his prior offenses --

here, burglary, murder, and other offenses -- when he was a 

young adult. While special constitutional rules apply to the 

punishment of juveniles, appellant was not a juvenile at the 

time of his current offense or his priors. (People v. Edwards

(2019) 34 Cal.App.5th 183, 186, 190-192 [upholding as 

constitutional sentences of 95 years to life and 129 years to 

life for 19-year-old sex offenders; “a defendant’s 18th 

birthday marks a bright line”(id. at 190)].) Accordingly, 

appellant’s sentence was not unconstitutionally excessive.
35

DISPOSITION

The judgment is affirmed. 

NOT TO BE PUBLISHED IN THE OFFICIAL

REPORTS

MANELLA, P. J.

We concur:

CURREY, J.

STONE, J.*

*Judge of the Los Angeles County Superior Court, 

assigned by the Chief Justice pursuant to article VI, section 

6 of the California Constitution.