People v. Dykes CA2/6

Filed 5/18/16 P. v. Dykes CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 SIX

THE PEOPLE, 2d Crim. No. B261576 (Super. Ct. No. F478660) Plaintiff and Respondent, (San Luis Obispo County)

v.

ADAM CHRISTOPHER DYKES,

Defendant and Appellant.

Adam Christopher Dykes appeals his conviction, by jury, of assault with a deadly weapon against a peace officer (Pen. Code, § 245, subd. (c)),1 and forcibly resisting peace officers. (§ 69.) The trial court sentenced appellant to a total term in state prison of 11 years, with 1133 days credit. He contends the trial court erred when 1) it allowed the prosecution to violate a stipulation describing the circumstances of his arrest, 2) it denied appellant's motion for new trial, and 3) it allowed the prosecutor to commit misconduct in closing argument. We affirm. Facts Appellant was on parole and had failed to report to his parole officer. A warrant was issued for his arrest. Sheriff deputies from San Luis Obispo arrested appellant during a coordinated "high-risk" traffic stop in a grocery store parking lot.

1 All statutory references are to the Penal Code unless otherwise stated.

Appellant was sitting in the driver's seat of a parked car; his girlfriend was sitting in the front passenger seat. Three marked police vehicles, with lights flashing, and other unmarked vehicles converged on appellant's car. The deputies approached with guns drawn, announced they were deputies and ordered the occupants of the car to show their hands. Some officers went to the driver's side of appellant's car; others went to the passenger side. Appellant looked in his rearview mirror, toward one of the deputies who described his facial expression as one of "disgust." He raised his hands close to the ceiling of the car but then quickly dropped them and grabbed the steering wheel. One of the deputies got into the car to arrest appellant. A struggle ensued and appellant started the car. He placed it in reverse and the car started to roll. Meanwhile, other officers were piling into the car as it rolled. One deputy got in on the passenger side, grabbed appellant's hand and tried to remove it from the gear shift. Another deputy sustained abrasions on his face and hands during the struggle. Appellant was eventually removed from the car, handcuffed and taken into custody. One of the deputies commented that appellant could have hurt somebody. Appellant replied that, "he wasn't trying to hurt anybody; he was just trying to get away and he didn't want to go to jail." The entire episode, captured on tape, lasted about one minute, 18 seconds. During that time, the car was in motion for about two seconds. It rolled only a few feet. Prior to trial, appellant filed a motion in limine to exclude evidence of his criminal history and to exclude evidence that an informant told law enforcement, before appellant's arrest, that appellant was affiliated with a gang and had a propensity for violence. After lengthy arguments, the parties stipulated: "The defendant Adam Dykes was arrested on August 22, 2012 in San Luis Obispo by deputies of the Sheriff's Department. [¶] The parties hereby stipulate: 1) that at that time, there was a lawful arrest for failure to report to his parole officer; 2) Based on information known to the deputies, the deputies were legally justified in conducting a 'high risk stop' to arrest him."