People v. Espinoza CA2/5

Filed 8/22/16 P. v. Espinoza CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE

THE PEOPLE, B266084

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. KA107370) v.

JAVIER FRANK ESPINOZA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Bruce F. Marrs, Judge. Affirmed as modified with directions. Donna Ford, 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, Senior Assistant Attorney General, and Scott A. Taryle, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION A jury convicted defendant, Javier Frank Espinoza, of resisting an executive officer. (Pen. Code, § 69.1) Defendant admitted he had sustained two prior serious felony convictions within the meaning of sections 667, subdivision (d), and 1170.12, subdivision (b). The trial court sentenced defendant to six years in state prison. We modify defendant’s presentence conduct credit, correct errors in the abstract of judgment and affirm the judgment as modified. II. DISCUSSION A. The Wende Brief We appointed counsel to represent defendant on appeal. After examining the record, appointed appellate counsel filed an “Opening Brief” in which no issues were raised. Instead, appointed appellate counsel requested this court independently review the entire record on appeal pursuant to People v. Wende (1979) 25 Cal.3d 436, 441. (See Smith v. Robbins (2000) 528 U.S. 259, 277-284.) On March 7, 2016, we advised defendant that he had 30 days within which to personally submit any contentions or arguments he wished us to consider. On April 20, 2016, we granted defendant 20 additional days to respond. B. Defendant’s Contentions In a brief filed on May 12, 2016, defendant argues there was insufficient evidence of resisting. Our Supreme Court has held there are two separate ways a violation of section 69 can be committed: “‘The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.’ (In re Manuel G. (1997) 16 Cal.4th 805, 814.)” (People v. Smith (2013) 57 Cal.4th 232, 240.) Here, two police officers responded to a domestic disturbance call. Upon their arrival, defendant: shouted obscenities; took a fighting stance with clenched fists; repeatedly challenged the officers to a fight, violently pulled away from and tried to strike the officers; and resisted