People v. Brewer CA5

Filed 9/10/15 P. v. Brewer CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THE PEOPLE, F068163 Plaintiff and Respondent, (Super. Ct. No. F1390615) v.

VINCENT DURAY BREWER, OPINION Defendant and Appellant.

THE COURT* APPEAL from a judgment of the Superior Court of Fresno County. Edward Sarkisian, Jr. and Gregory T. Fain, Judges.† John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent. -ooOoo-

* Before Levy, Acting P.J., Gomes, J. and Peña, J. † Judge Sarkisian was the trial judge in this matter; Judge Fain conducted the Pitchess review.

Defendant Vincent Duray Brewer was convicted by jury trial of resisting an executive officer (Pen. Code, § 69). The trial court sentenced him to three years four months in prison. On appeal, he requests that we independently review the records reviewed by the trial court on his Pitchess1 motion and determine whether the trial court abused its discretion by not providing him access to any of those records. We conditionally reverse the judgment. FACTS On the morning of February 14, 2013, Brewer and three other inmates were placed in a holding cell in the county courthouse, awaiting appearance in court. Brewer was wearing a waist chain, handcuffs, and leg shackles. For about 30 minutes, he repeatedly screamed, “When am I going to court?” and “Get me into court.” Deputy Tafoya asked him several times to lower his voice, but he continued to scream. Tafoya had another deputy open the cell door, then Tafoya confronted Brewer about his screaming, telling him to lower his voice and sit down. Brewer said he would not sit. Tafoya touched him on the shoulder to coax him into sitting, but Brewer batted his hand away. Brewer took a combative stance and screamed at Tafoya. Tafoya realized he needed to use force to gain physical control over Brewer so he pushed him off-balance and tried to pull him out of the cell. Deputy Serrano arrived to assist Tafoya. Brewer was extremely agitated and combative. Tafoya and Serrano grabbed Brewer’s jumpsuit and waist chain and tried to pull him out. Serrano told him to stop resisting. Tafoya and Serrano tried to get him up to a wall, but he resisted and all three went to the floor. Tafoya and Serrano got on top of Brewer to keep him down, but they were still unable to close the cell door. Brewer continued yelling, resisting, and thrashing. Serrano repeatedly told him to stop resisting. Tafoya dragged him by his leg shackles, but the cell