People v. Peeler CA3

Filed 3/17/15 P. v. Peeler CA3

NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C076528

Plaintiff and Respondent, (Super. Ct. No. 12F06302)

v.

BRICE PEELER,

Defendant and Appellant.

A jury found defendant Brice Peeler guilty of assault with a semiautomatic firearm on a peace officer, felony evading a peace officer, and possession of a firearm by a convicted felon, and found he personally used a firearm during the assault. (Pen. Code, §§ 245, subd. (d)(2), 12022.53, subd. (b), 29800, subd. (a)(1); Veh. Code, § 2800.2, subd. (a).) The trial court found defendant had a prior serious felony conviction, a strike, and had served three prison terms. (Pen. Code, §§ 667, subds. (a), (b)-(i), 667.5, subd. (b),

1

1170.12.) The trial court sentenced him to prison for 38 years eight months. Defendant timely appealed. On appeal, defendant (1) seeks review of the materials examined in camera during his Pitchess hearing (Pitchess v. Superior Court (1974) 11 Cal.3d 531), (2) contends no substantial evidence shows the pistol he used was operable, and (3) contends trial counsel was ineffective because she conceded liability on one count and failed promptly to move to strike an officer’s “gratuitous” testimony. Disagreeing, we shall affirm. FACTS Sacramento County Sheriff’s Detective Kevin Reali testified he received a call from Nevada County Sheriff’s Detective Bingham on September 14, 2012, asking for help in serving a felony warrant on defendant. Bingham told him defendant might be armed with a handgun. Five days later, Bingham called again and asked Reali to check a house in the Antelope area of Sacramento. Reali saw a man leave the house, put something in the trunk of a Volvo, and get in the driver’s seat. After a woman entered the Volvo, the Volvo left, and Reali tried to reach Bingham, without success. Reali reached Detective Jeff Martin, who asked him to check on a white panel van at a Walmart, because defendant was thought to use it to hide things. Martin testified he told Reali that multiple informants had recently seen defendant with “a handgun and/or a small assault style rifle” and that he always carried those weapons with him. Reali saw the van, called back-up, and when other officers arrived, Reali returned to the Antelope house. Reali learned a team comprised of Nevada and Placer County officers had found the Volvo in Orangevale, and went to discuss with those officers how to apprehend defendant safely, given that they understood he might be armed, and there were two females in the Volvo, which was in motion. Reali entered Sergeant Gregory Coauette’s unmarked Ford Expedition, “and we were maybe fifth or sixth . . . in the conga line, as you might say, into following the Volvo away . . . .”