People v. Rapada CA1/1

Filed 10/9/15 P. v. Rapada CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A139286 v. WENDELL J. RAPADA, (San Mateo County Super. Ct. No. SC074484C) Defendant and Appellant.

Wendell J. Rapada and three other members of his family1 were charged in connection with a confrontation with police officers. Wendell was convicted of felony battery against a peace officer, and on appeal he argues that the conviction must be reversed due to instructional error. We disagree and affirm. I. BACKGROUND On July 4, 2011, officers Michael Brennan and Joe Valiente were patrolling San Bruno in a marked police vehicle. They saw and heard an explosion, which they believed was caused by an illegal firework thrown from a group standing in front of an apartment complex on East Avenue. As the officers slowed to investigate, an object with a lighted fuse was thrown at the officers’ vehicle and exploded near or under it. No damage was done to the vehicle.

1 The other three family members, Crystal, Ervin, and Ephraim, shared Wendell’s last name, and for purposes of clarity we will refer to them by their first names. We will refer to the four collectively as the defendants.

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Wendell ran from the group toward the apartment stairwell. The officers pursued him, believing he had thrown the explosive. On the second floor landing, Wendell stopped and turned around with his fist clenched. After Brennan grabbed Wendell’s shirt, Wendell punched him in the face. Danielle Matos, a witness, testified that the officer threw Wendell to the ground and choked him. Brennan testified that he had no recollection of putting Wendell in a choke hold. During the struggle, some of Wendell’s family members began yelling at the officers to release Wendell, and a mêlée ensued. Valiente claimed that Crystal, Wendell’s cousin, repeatedly kicked him in the head. Brennan also claimed to have been kicked in the head four or five times, but the prosecution maintained it was Crystal, not Wendell, who did the kicking. Brennan testified he felt dazed after being punched by Wendell, and even more so after being kicked. The altercation was eventually broken up by backup police officers. Brennan was taken to the emergency room. Hospital records indicate he reported no jaw pain, no change in vision, no dizziness, and the conclusion was that Brennan’s behavior was “normal.” At trial, Brennan testified he suffered bruises to his head and face and a finger injury, which required a splint for a few days. He also claimed to have experienced memory loss after the incident. Brennan testified he thought the kicks to the head “ha[d] a lot to do with” the memory loss, but he could not be sure that the punch to face did not also contribute to it. The defendants were charged by amended information with multiple counts, and they were eventually tried together. The specific charges against Wendell were felony assault upon a peace officer by means of force likely to produce great bodily injury (“felony assault on a peace officer”), felony battery against a peace officer, possession of a destructive device with intent to injure or intimidate, and resisting a peace officer