In Re Ponce De Leon

A jury convicted Elvis Ponce de Leon of assault on a peace officer and possession of a controlled substance. (Pen.Code, § 245, subd. (c); Health & Saf.Code, § 11350, subd. (a).) In subsequent writ proceedings, the trial court set aside the conviction of possession of a controlled substance when it came to light during the Rampart investigation that the arresting officers may have used excessive force in this case. The trial court declined to set aside the conviction of assault on a peace officer. For the reasons stated below, we conclude the assault conviction also must be reversed. Accordingly, we grant the relief requested and remand the case for a new trial.

De Leon was charged with two counts of robbery of Tito Mena, attempted robbery of Otillo Fuentes, assault with a firearm on John Lidyoff, assault on Los Angeles Police Officer Melvin Boyd, possession of a controlled substance and possession of a firearm by a felon.

On May 22, 1997, a male approached Mena at a phone booth, simulated a weapon in his pocket and demanded Mena's property. At the preliminary hearing, Mena testified he gave the assailant $3. At trial, Mena testified he told the assailant he had…