People v. Pacheco

LILLIE, J. Defendant was charged with the unlawful use of force and violence on a peace officer (§ 242, Pen. Code) and [556]attempting by means of threats and violence to prevent R. H. Studdard, who was an executive officer, from performing duties imposed upon him by law and, by the use of force and violence, resisting him in the performance of his duties (§ 69, Pen. Code). The cause was submitted to the trial judge on the transcript of the testimony taken at the preliminary hearing. Defendant was found not guilty on the first count and guilty of a violation of section 69, Penal Code, as alleged in the second. After examination under section 5504, Welfare and Institutions Code, defendant was found by the court to be “a mentally disordered sex offender,” and committed for diagnosis for a period not to exceed 90 days. From this order of commitment defendant filed notice of appeal. Four months later the trial court set aside the commitment order on the ground that the proceedings failed to comply with section 5500, Welfare and Institutions Code, and ordered a new hearing. Defendant waived a jury and the trial court found defendant not to be a mentally disordered sex offender; criminal proceedings were reinstated and he was sentenced to the state prison. Defendant appeals from the judgment. The appeal from the order is dismissed.

Around 6 p.m. on November 16, 1966, Mrs. Romero heard her daughter Amy, age 12, scream for help; she ran out and saw defendant “pulling on” Amy’s waist. When defendant saw her he released Amy but Mrs. Romero ran toward him and began hitting him; one Hernandez tried to pull defendant away from her but defendant tore her dress. She saw a passing motorcycle officer, stopped him and told him that a man had struck her several times and was at the rear of the building. Officer Studdard noted that Mrs. Romero’s dress was torn; he followed her to the rear and ascended an outside flight of stairs; as they reached the top defendant stepped out with his fist doubled up as if to strike Mrs. Romero. Officer Studdard stepped between them and told defendant to turn around but he said something, refused to do so and doubled up both fists; thinking defendant might hit him, the officer attempted to turn him around; defendant began hitting in the officer’s direction and a scuffle ensued. The officer told Hernandez who was standing near to turn around but Hernandez reached into his pocket; afraid that Hernandez might have a weapon, Officer Studdard with one hand held his pointed gun on Hernandez while trying to hold defendant with the other. During this time defendant was struggling and trying to hit the officer and did so four or five times, About five or six