Filed 8/18/16 P. v. Mayberry CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE,
Plaintiff and Respondent,

v.

DONALD MAY BERRY,
Defendant and Appellant. B261300
(Los Angeles County Super. Ct. No. NA098576)

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Affirmed.

Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________________2

Donald Mayberry appeals from a judgment which sentences him to four years in state prison for resisting an executive officer lawfully performing his duties. (Pen

. Code, § 69. ) 1 On appeal, Mayberry con tends there was insufficient evidence to prove the officer was lawfully performing his duties at the time of the incident. Mayberry also contends the trial court erred in instructing the jury, and in ruling on his Pitchess 2 and
new trial motion s . We affi rm the judgment.
FACTS
A number of Los Angeles County Sheriff’s Deputies, including Victor Locklin
and Ricardo Duarte
, were in plain clothes at the Willow Blue Line S t ation in Long Beach on March 12, 2014, checking fares a s passengers exited the train. D eputy Locklin did not interact with the passengers, but served as backup to the other officers. Fare security
assistants also check ed fares.
A video of the incident showed Deputy Anaya interacting with Mayberry

. In it, Mayberry handed his access card or transit access pass (TAP) to Deputy Anaya, who put
the card to his elec tronic TAP reader. Deputy Locklin noticed Mayberry and Deputy Anaya after Mayberry became upset, shout ed profanities, and stat ed he was tired of always being harassed by the police. Deputy Locklin also heard Mayberry offer to pay
the fare w hen Deputy Anaya told him he did not have a valid fare

. Mayberry became louder and more upset when Deputy Anaya asked him for identification so as to issue
him a citation. Mayberry said his iden tification was in one of his bags and pointed to it. Deputy Locklin then offered to get Mayberry’s identification for him in an attem pt to calm him down. When Deputy Locklin reached for the bag, Mayberry became more agitated
, res pond ing , “Don’t touch my f’n bag ” and “Don’t go into my shit

. ” Deputy Anaya announced he was placing Mayberry under arrest and then reached
for him

. Deputy Anaya managed to grab Mayberry’s arm and put it behind his back.

1 All further section references are to the Penal Code unless otherwise specified.

2 Pitchess v. Superior Court (1974) 11 Cal.3d 531.3

Deputy Duarte placed a h andcuff on one of Mayberry’s wr ist s, but Mayberry broke loose
before the second ha ndcuff could be placed on his other wrist. A gitated , Mayberry struggled to break away. He waved his handcuffed arm in the air. Fearing the handcuff could be used as a weapon, the deput ies backed away. Deputies Anaya and Duarte unsuccessfully tried to grab Mayberry . Deputy Locklin put Mayberry in a bear hug to get him away from the edge of the platform. Mayberry knocked Deputy Locklin off balance
and to the ground. Deputy Locklin let go of Mayberry an d the other deputies eventually

mana ged to subdue him. Deputies Duarte and Locklin testified to the events described above. Additionally, Deputy Duarte testified he saw Mayberry look around as if to size up all of the deputies. Deputy Duarte believed the situation would escalate. As a result , he positioned himself behind Mayber ry to expedite handcuffing him

. As Mayberry struggled with the other deputies, Deputy Duarte stru ck him o n the shoulder three or four times with his miniature
baton to subdue h im

. Deputies Locklin and Duarte sustained minor injuries from the struggle with Mayberry. At trial, t he defense rested without pres enting any evidence. The jury returned a guilty verdict for the charge of resisting an executive officer in
violation of section 69. 3 The trial court subsequently f ound true the further allegations
that Mayberry suffered a prior strike conviction (§§ 667 subd

. (d), 1170.12, subd . (b)) and served five prior prison terms. (§ 667.5 subd. (b) .) At sentencing, t he trial court struck the five one

- year prior prison term enhancements and de nied probation. Mayberry

was sente nce d to four years in state prison, consisting of the middle term of two years
, doubled due to his prior strike. He timely appealed.
DISCUSSION
I. Sufficie nt Evidence Supports the Conviction for Resisting an Executive
Officer Mayberry contends his conviction for resisting an executive officer is not support ed by substantial evidence. Specifically, he claims t hat without Deputy Anaya ’s

3 The remaining three counts for unlawful use of force and infliction of an injury in violation of section 24 3, subdivision (c)(2) were stricken upon the People’s mot ion.4

testimony
, there is no evidence Deputy Anaya was engaged in the lawful performance of

an official duty when Mayberry resisted the deput ies who tried to handcuff him

. Only Deputy Anaya , says Mayberry
, could have presented competent evidence that May berry evaded paying a fare because Deputy Anaya was the only one to look at the TAP reader. Specifically, i f Mayberry had a valid fare and Deputy Anaya gave him a citation anyway, he would have done so unlawfully

. The standard of review we employ is well established: “‘ To deter mine whether sufficient evidence supports a jury verdict, a reviewing court reviews the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reason able jury could find the defendant guilty beyond a reasonable doubt. ’ [Citation.] ” ( People v. Smith (2014) 60 Cal.4th 603, 617.) “‘“ On appeal, we

. . . must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substit ute our evaluation of a witness’ s credibility for that of the fact f inder. [Citations.] ”’” ( People v. White (2014) 230 Cal.App.4th 305, 315, fn. 13.) When the evidence is circumstantial, “‘ [w] e ‘ must accept logical inferences that the jury might have drawn from the circ umstantial evidence.’ ‘ Although it is the jury’ s d uty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that mus t be convinced of the defendant’ s g uilt be yond a reasonable doubt.’ Where the circumstances reaso nably justify the trier of fact’ s findings, a reviewing court’ s conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment’ s reversal.” ’” ( People
v. Manibusan (2013) 58 Cal.4th 40, 87 [citations omitted ] .)5

Section 69 “‘ sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty impos ed by law; the second is resisting by force or violence an officer in the p erformance of his or her duty.’” ( People v. Lacefield (2007) 157 Cal.App.4th 249, 255, quoting In re Manuel G. (1997) 16 Cal.4th 805, 814.) In this case, we a re concerned with wha t the latter means. The California Supreme Court has explained, “the long

- stand ing rule in California

. . . is that a defendant cannot be convicted of an offense against a peace officer ‘“ engaged in

. . . the performanc e of

. . . [his or her]
duties ”’ unl ess the officer was acting lawfully at the time the offense against the officer
was committed. [Citations.] ‘ “ The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties,” for purposes o f an
offense defined in such terms, if the officer’s conduct is unlawful. . . . [¶] . . . [T]he lawfulness of the victim’ s conduct forms part of the corpus delicti of the offense.”’ ” ( In re Manuel G. (1997) 16 Cal. 4th 805, 815, quoting People v. Gonzalez (1990) 51 Cal.3d 1179.) Mayberry does not contend that issuing him a citation for failing to have the proper fare is not a lawful duty of a police officer, only that the evidence was insufficient to prove that is what occurred. We disagree. Even with out Deputy Anaya’s testimony,

t he record shows the deputies were engaged in the lawful performance of their duties when Mayberry was arrested. The evidence showed the deputies were working fare
enforcement on March 12, 2014 . Deputy Locklin explained that each passenger was
asked to show a valid fare a s he or she exited the train. The video showed Deputy Anaya
interacti ng with Mayberry and Mayberry showing him an access card. Thereafter
, Deputy Locklin heard Mayberry exclaim that he had the money to pay the fare and offer to pay the fare. Mayberry then indicated he had identifi cation, but it was in his bag. Deputy Locklin was approximately five feet away when he heard Mayberry make those

statemen ts. By this time, Mayberry’s profane shouting was loud en ough to draw the
attention of the other deputies. The evidence showing the officers were conducting a “fare enforcement op” and Mayberry’s offer to pay constitute sufficient evidence for a6

rational juror to conclude Mayberry did not have a valid fare even without testimony regarding Deputy Anaya’s out

- of

- court statements

. We are not persuaded by Mayberry’s attempt to discredit the deputies’ testimony by asserting they were not close enough to hear what was being said and were not paying
attention. Purp orted weaknesses in the testimony of a n eyewitness are to be evaluated by the jury. ( People v. Elwood (1988) 199 Cal.App.3d 1365, 1372.) Neither are we persuaded that D eputy Duarte’s more ambiguous testimony regarding Mayberry’s
statements about his fare negate Deputy Locklin’s stronger testimony . Initially, Deputy Duarte testified Mayberry claimed he had paid the fare
, but Deputy Anaya explained to
him t hat there was no fare on his TAP card, and that he was going to receive a citation.
When he was subs equently questioned about this testimony, Deputy Duarte clarified,
“I do not recall that. I k now he said he had something on his card
, but I don’t know whether he meant money or as far as if it was valid or what because that was between him and Deputy Ana ya .” It is well settled that conflicts in testimony do not justify reversal of a judgment. ( People v. Allen (1985) 165 Cal.App.3d 616, 623.) Further,
th e testimony of a single witness is sufficient to support a criminal conviction barring physical impos sibility or inherent improbability. ( People v. Elwood , supra, 199 Cal.App.3d at p. 1372.) Additionally, the evidence supporting the judgment was competent. The video showed Deputy Anaya’s interaction with Mayberry

. Mayberry does not dispute the

compe tency of Deputy Locklin’s testimony about his offer to pay the fare. Indeed, t he trial court found Mayberry’s out

- of

- court statement to be a “ party

- opponent admission.” Mayberry does not challenge the trial court’s ruling on th is.
Nevertheless , Mayber ry contends his own “contradictory statements do not constitute substantial, solid evidence, as is required, of a necessary ele ment of the offense.” Here , Mayberry argues there must be proof outside of the defendant’s own utterances for the corpus delicti of section 69 to be proved. It is true that “ [i] n every criminal trial, the prosecution must prove the corpus delicti, or the body of the crime
itself

-- i.e., the fact of injury, loss, or harm, and the existence of a criminal agency as its7

cause. In Cali fornia, it has traditionally been held, the prosecution cannot satisfy t his burden by relying exclusively upon the extrajudicial statements, confessions, o r admissions of the defendant. [Citations.] Though mandated by no statute, and never
deemed a const itutional guaranty, the rule requiring some independent proof of the corpus delicti has roots in the common law. [Citations.] ” ( People v. Alvarez (2002)
27 Cal.4th 1161, 1168

- 1169

. ) As discussed above, we do not merely rely on Mayberry’s own admissio n to show Deputy Anaya was lawfully performing his duty . Instead, the deputies’ testimony about the fare enforcement activity and the video showing Deputy Anaya’s initial interaction with Mayberry, including that Deputy Anaya check ed Mayberry’s access car d on his TAP reader, offer sufficient evidence beyond Mayberry’s comments. “ The independent proof may be by circumstantial evidence [citation], and it need not be beyond a
reasonable doubt. A slight or prima facie showing, permitting the reasonable infer ence that a crime was committ ed, is sufficient. [Citations.]” ( People v. Alcala (1984)
36 Cal.3d 604, 624

- 625 ; People v. Gutierrez (2002) 28 Cal. 4th 1083, 1126

- 1128.)

“ We reemphasize that the quantum of evidence the People must produce in order to
sati sfy the corpus delicti rule is quite modest; case law describes it as a ‘ slight or prima
facie ’ showing. [Citations.] ” ( People v. Jennings (1991) 53 Cal.3d 334, 368 .) Such was present in this case.
II. The Trial Court Was Not Required to Sua Sponte I ssue A Jury Instruction On Deputy Anaya’s Out

- of

- Court Statement At trial, Deputy Locklin testified he heard Mayberry offer to pay the fare when Deputy Anaya told him he did not have a valid fare. He also testified that Deputy Anaya announced he would pl ace Mayberry under arrest. The trial court overruled defense
counsel’s hearsay objection to this testimony , finding it was not being admitte d for the
truth of the matter. Mayberry argues, “[n]o juror would likely have understood that Deputy Locklin’s tes timony regarding Deputy Anaya’s statement being admitted ‘not for the truth’ in fact meant that a statement such as Deputy Anaya ‘decided to arrest’ appellant did not stand for the ultimate fact that Deputy Anaya had in fact made a lawful8

arrest of appella nt.” Mayberry contends the trial court erred in failing to sua sponte instruct the jury on how to consider the testimony regarding Deputy Anaya’s out

- of

- court

statements. We disagree. First, the instruction was never requested. ( People v. Gutierrez, supra, 28 Cal.4 th at p. 1134.) Second, any error resulting from the omission was harmless. Reversal on instructional error is required only if “ the court, ‘ after an examination of the entire cause, including the evidence,’ is of the ‘ opinion ’ that it is reasonably probable that a result
more favorable to the [defendant] would have been reached in the absence of the error. ” ( People v. Watson (1956) 4 6 Cal.2d 818, 836 ; see also People v . Wright (1988) 45 Cal.3d 1126, 1144

- 1 154 [applying Watson to find inst ructional error harmless]

. )
Our review of the entire record in this case leads us to conclude that it is not reasonably probable that had an instruction been given about hearsay evidence , the jury
would have reached a verdict more favorable to defendant. We base this conclusion on the o verall strength of the evidence and the absence of any indication the jury was
uncertain or confused . The evidence showed the deputies were conducting a fare enforcement operation, Mayberry gave his access card to Deputy A naya to check, there was no valid fare on it, he then became agitated, and offered to pay the fare

. Further, when defense counsel objected to testimony about Deputy Anaya’s statements, the trial court indicated each time that the testimony was not being a dmitted for its “truth.”
There was no indication from the jury that it was confused about the trial court’s

comments.
III

. The Trial Court Properly Denied The New Trial Motion After the jury returned its verdict, Mayberry moved for a new trial, claim ing there

was insufficient evidence to establish Deputy Anaya was lawfully performing his duties
at the time of the incident. The trial court denied the motion. Mayberry now contends the new trial motion should have been granted for the same reasons disc ussed above, that is, there was a lack of substantial evidence to s upport the judgment. Because we find
more than substantial evidence to support the judgment, the trial court did not err when it denied the motion for new trial. ( People v. Ault (2004) 33 Cal.4 th 1250, 1262.)9

I V. No Other Documents Are Required To Be Disclosed Under Pitchess On April 7, 2 014, Mayberry sought discovery and disclosure of the personnel records of Deputies Amaya, Duarte, Locklin, Bandow and Ramirez, all of who m were
presen t during the incident. Specifically, Mayberry requested records relating to complaints against these deputies of violence, excessive force, false arrest, dishonesty or “any other evidence of misconduct amounting to moral turpitude” as well as any discipli ne i mposed as a result. The trial court granted Mayberry’s Pitchess motion and conducted an in camera hearing to review the deputies’ personnel records for this
information. Mayberry requests we conduct an independent rev iew of the records the trial co urt reviewed in ruling on his Pitchess motion in order to determine whether the trial court properly ruled on his motion. The record here is adequate to permit meaningful appellate
review. It includes a full transcr ipt of the in camera hearing. Further, the trial court stated for the record what documents it examined. ( People v. Mooc (2001) 26 Cal.4th 1216, 1229.)
We have examined the record of the trial court ’ s in camera review of the requested personnel files and find “no [other] materials so clearl y pertinent to the issues raised by
the Pitchess discovery motion that failure to disclose them was an abuse of Pitchess discretion.” ( People v. Samayoa (1997) 15 Cal.4th 795, 827.) The trial court did not
abuse its discretion

. DISPOSITION The judgment is affirmed.

BIGELOW, P.J.
We concur:

FLIER, J. GRIMES, J.