People v. Dupclay CA2/5

Filed 11/21/24 P. v. Dupclay CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B332450

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. MA083894-01) v.

DAMION JAMES DUPCLAY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Brian C. Yep, Judge. Reversed and remanded with directions. Ryan Peabody, 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, Jonathan J. Kline and Charles Chung, Deputy Attorneys General, for Plaintiff and Respondent. ____________________________

A jury convicted defendant Damion J. Dupclay of battery and assault on a correctional officer during defendant’s confinement in state prison. Defendant argues assault is a lesser included offense of battery, and that his assault conviction must therefore be reversed. He also asks that we review the trial court’s ruling on defendant’s Pitchess1 motion to discover relevant portions of the victim prison guard’s personnel file. We agree that defendant’s conviction for assault must be reversed. With respect to defendant’s Pitchess motion, we remand to the trial court for further proceedings. FACTUAL AND PROCEDURAL BACKGROUND Defendant was an inmate in the administrative segregation unit at the California State Prison, Los Angeles. When an inmate in a neighboring cell requested a shower, defendant’s cell was opened by mistake. Defendant exited his cell, advanced on Correctional Officer Ryan Eckler, and punched Officer Eckler’s face. Officer Eckler restrained defendant and held him on the ground until other officers arrived and handcuffed defendant. An amended information charged defendant with battery on a non-confined person by a prisoner (Pen. Code, § 4501.5; count 1)2 and assault by means of force likely to produce great bodily injury while confined in a state prison (§ 4501, subd. (b); count 2). The amended information also alleged defendant had prior convictions of two or more serious and/or violent felonies (§§ 667, subd. (d) and 1170.12, subd. (b)), as well as three aggravating factors under California Rules of Court,