In Re Ponce De Leon

13 Cal.Rptr.3d 310 (2004) 117 Cal.App.4th 1116 In re Elvis PONCE DE LEON on Habeas Corpus.

No. B167727. Court of Appeal, Second District, Division Three.

March 30, 2004. As Modified April 21 and May 13, 2004. [311] Janice Fukai, Alternate Public Defender, Gerald P. Williams and Jenny Elisabeth Wayland, Deputy Alternate Public Defenders, for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, and Thien Huong Tran, Deputy Attorney General, for Respondent.

KLEIN, P.J.

A jury convicted Elvis Ponce de Leon of assault on a peace officer and possession of a controlled substance. (Pen.Code, § 245, subd. (c); Health & Saf.Code, § 11350, subd. (a).) In subsequent writ proceedings, the trial court set aside the conviction of possession of a controlled substance when it came to light during the Rampart investigation that the arresting officers may have used excessive force in this case. The trial court declined to set aside the conviction of assault on a peace officer. For the reasons stated below, we conclude the assault conviction also must be reversed. Accordingly, we grant the relief requested and remand the case for a new trial.

FACTUAL AND PROCEDURAL BACKGROUND

1. The trial.

De Leon was charged with two counts of robbery of Tito Mena, attempted robbery of Otillo Fuentes, assault with a firearm on John Lidyoff, assault on Los Angeles Police Officer Melvin Boyd, possession of a controlled substance and possession of a firearm by a felon.

a. Prosecution's evidence.

On May 22, 1997, a male approached Mena at a phone booth, simulated a weapon in his pocket and demanded Mena's property. At the preliminary hearing, Mena testified he gave the assailant $3. At trial, Mena testified he told the assailant he had nothing.[1]

On May 24, 1997, at approximately 9:00 p.m., a male approached Mena and Otillo Fuentes outside Mena's home near 11th Street and Union Avenue. The male struck Mena three times in the head with a handgun and fired the handgun as he left the scene. Later that night, Mena identified De Leon in a field show-up as the individual who attacked him, but testified at trial he had done so only because a police officer told Mena that De Leon was the assailant. At the preliminary hearing, Mena testified he gave the male approximately $80 and identified De Leon as the male who robbed him on May 22 and 24, 1997. However, at trial, Mena could not recall whether he had given the assailant any money and could not recall if the male who accosted him on May 22, 1997, was the same individual who struck him with a handgun on May 24, 1997.