People v. Mancilla CA2/8

Filed 12/4/14 P. v. Mancilla CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 B252532

Plaintiff and Respondent; (Super. Ct. No. BA401936)

v.

OSBALDO MANCILLA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Craig Richman, Judge. Affirmed.

Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.

__________________________

Osbaldo Mancilla appeals from his conviction on two counts of resisting arrest and other charges, contending that: (1) the trial court erred by not instructing the jury that he was not guilty of resisting arrest if the officers used excessive force; and (2) that his lawyer was ineffective for not requesting that instruction and not preparing a defense on that theory. We reject both contentions and therefore affirm the judgment.

FACTS AND PROCEDURAL HISTORY

At around 12:15 p.m. on June 25, 2012, paramedics were called to a Goodwill facility in San Fernando after Goodwill workers noticed Osbaldo Mancilla moaning in pain and rubbing his stomach. After Mancilla was placed on a gurney he became combative, flailed his arms around, and then ran off. One hour later Mancilla drove his car through a pedestrian breezeway outside the Goodwill building and crashed through the front door. Lyn Mayer had just stepped out the front door as Mancilla approached and moved out of the way to avoid being hit. Seconds before, as Mancilla approached the breezeway, he sped perilously close to a bench occupied by Valencia Walton and Maria Rodriguez, nearly clipping the women before they jumped out of the way. Los Angeles Police Officers Fernandez, Tuck, Ruano, and Ramirez came to the scene and quickly found Mancilla in the nearby flood control channel. Fernandez and Tuck arrived first. They approached Mancilla, identified themselves as police officers, and ordered Mancilla to stop and get on the ground. When Mancilla kept walking away quickly, Fernandez repeated his orders and grabbed Mancilla’s wrist. Mancilla tried to pull away and the officers pushed him face down onto the ground. The officers kneeled on Mancilla’s back and shoulders. Mancilla shouted, “Fuck you. You’re going to have to kill me. Kill me. Throw me in the river.” Fernandez and Tuck tried to isolate Mancilla’s hands because they were underneath his belly and they were concerned that he might have a weapon. Mancilla “rose up and physically threw” both officers off his back. The officers’ combined weight was 470 pounds. According to Fernandez, Mancilla was now in a better position to fight, run, or use a weapon if he had one. Fernandez punched Mancilla in the face in order to