People v. Mayberry CA2/8

Filed 8/18/16 P. v. Mayberry CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B261300

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. NA098576) v.

DONALD MAYBERRY,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith L. Meyer, Judge. Affirmed.

Mona D. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Noah P. Hill and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

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Donald Mayberry appeals from a judgment which sentences him to four years in state prison for resisting an executive officer lawfully performing his duties. (Pen. Code, § 69.)1 On appeal, Mayberry contends there was insufficient evidence to prove the officer was lawfully performing his duties at the time of the incident. Mayberry also contends the trial court erred in instructing the jury, and in ruling on his Pitchess2 and new trial motions. We affirm the judgment. FACTS A number of Los Angeles County Sheriff’s Deputies, including Victor Locklin and Ricardo Duarte, were in plain clothes at the Willow Blue Line Station in Long Beach on March 12, 2014, checking fares as passengers exited the train. Deputy Locklin did not interact with the passengers, but served as backup to the other officers. Fare security assistants also checked fares. A video of the incident showed Deputy Anaya interacting with Mayberry. In it, Mayberry handed his access card or transit access pass (TAP) to Deputy Anaya, who put the card to his electronic TAP reader. Deputy Locklin noticed Mayberry and Deputy Anaya after Mayberry became upset, shouted profanities, and stated he was tired of always being harassed by the police. Deputy Locklin also heard Mayberry offer to pay the fare when Deputy Anaya told him he did not have a valid fare. Mayberry became louder and more upset when Deputy Anaya asked him for identification so as to issue him a citation. Mayberry said his identification was in one of his bags and pointed to it. Deputy Locklin then offered to get Mayberry’s identification for him in an attempt to calm him down. When Deputy Locklin reached for the bag, Mayberry became more agitated, responding, “Don’t touch my f’n bag” and “Don’t go into my shit.” Deputy Anaya announced he was placing Mayberry under arrest and then reached for him. Deputy Anaya managed to grab Mayberry’s arm and put it behind his back.