People v. Sumler CA2/8

Filed 12/21/20 P. v. Sumler CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, B303176

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA457994) v.

ELAJAH SUMLER,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County. Ronald S. Coen, Judge. Affirmed. James R. Bostwick, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Michael J. Wise, Deputy Attorneys General, for Plaintiff and Respondent.

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Defendant and appellant Elajah Sumler appeals from his conviction by jury of assault on a peace officer and resisting arrest. He contends his assault conviction is not supported by substantial evidence and the trial court erred in failing to instruct on the lesser included charge of simple assault, in denying his motion for mistrial and in denying his request for a waiver of fees and fines. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with one felony count of assaulting a peace officer (Pen. Code, § 245, subd. (c); count 1) and four misdemeanor counts of resisting or obstructing a peace officer or emergency medical technician (§ 148, subd. (a)(1); counts 2–5). It was also alleged defendant had suffered three prior convictions within the meaning of section 667.5, subdivision (b). The prison priors were struck by the court in light of the passage of Senate Bill 136 (2019–2020 Reg. Sess.). The case was tried to a jury in November 2019. The testimony at trial established the following material facts. In the early morning hours of June 3, 2017, Officer Adam Deckel of the Los Angeles Police Department was on patrol in Hollywood with his partner, Officer Ruben Vasquez. They periodically got out of their patrol car and patrolled on foot. After getting out of the car near the intersection of Las Palmas and Hollywood Boulevard, Officer Deckel noticed defendant nearby on the sidewalk, holding a cane. Officer Deckel recognized defendant, having seen him in the area at least twice before. Defendant, who was about five to eight feet away, immediately looked at Officer Deckel with an angry, aggressive demeanor. He spit at Officer Deckel and said “Fuck you.” Officer