People v. Witkin CA3

Filed 12/7/20 P. v. Witkin CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

THE PEOPLE, C091041

Plaintiff and Respondent, (Super. Ct. No. 04F07333)

v.

MICHAEL WITKIN,

Defendant and Appellant.

Appointed counsel for defendant Michael Witkin filed an opening brief that sets forth the facts of the case and asks this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant subsequently filed a supplemental brief, raising several issues. After examining the record, we reject defendant’s claims of error and find no other arguable error that would result in a disposition more favorable to defendant. We affirm.

1

FACTUAL AND PROCEDURAL BACKGROUND In 2005 a jury convicted defendant of resisting an executive officer by use of force and violence (Pen. Code, § 69),1 and battery on a peace officer (§ 243, subd. (b)). He was sentenced to state prison, and this court affirmed his convictions in an unpublished opinion in 2007. (People v. Witkin (May 11, 2007, C051629) [nonpub. opn.] slip opn. at p. 5 (Witkin I).)2 We recounted the facts underlying defendant’s 2005 convictions in Witkin I as follows: Early on the morning of August 21, 2004, Sacramento County Deputy Sheriff Robert Barnes waited in his Elk Grove patrol car at a red light and saw a Cadillac speed by at 80 miles per hour. (Witkin I, supra, C051629 at p.[1].) Barnes followed the car, which continued at a high rate of speed and made rapid lane changes. (Ibid.) The car eventually swerved across the road and stopped in front of a house; half the car was in the driveway and the other half was across the sidewalk. Defendant jumped out of the car. From 30 feet away, Barnes yelled, “ ‘Stop, police. Come here.’ ” Defendant looked at the officer and then ran towards the residence. Barnes yelled at defendant to stop, and pursued him towards the residence. As the deputy grabbed defendant, the door flew open and the two fell into the house. During a struggle, the deputy felt defendant pulling on his radio and his gun. The struggle continued out the door and onto the front lawn. Defendant escaped and ran to his car. Barnes could not see defendant’s hands, which were near his waistband. Believing defendant was reaching for a weapon, Barnes shot five times at defendant, who ran away. (Ibid.) Defendant was hit in his chest and hip, and was later arrested following a two-hour standoff. (Id. at pp.