P. v. Green

Filed 8/19/08 P. v. Green CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Eric M. Nakata, Judge. Affirmed with directions.

Laurel M. Nelson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Steve Oetting, Supervising Deputy Attorney General, and Donald W. Ostertag, Deputy Attorney General, for Plaintiff and Respondent.

A jury found appellant and defendant Craig Green guilty of deterring or preventing an officer from performing his duties (Pen. Code,^[1] 69, count 1) and transportation of marijuana (Health & Saf. Code,  11360, subd. (a), count 2). The trial court found true the allegations defendant had one prior strike conviction ( 1170.12, subds. (a)-(d) and 667, subds. (b)-(i)) and that he had served two prior prison terms ( 667.5, subd. (b)). The court sentenced defendant to a total term of four years eight months in state prison.

On appeal, defendant contends that the court 1) improperly instructed the jury regarding the offense of preventing an officer from performing his duties ( 69), and 2) erroneously imposed two prison prior enhancements, even though defendant only served one prior prison term. The People concede, and we agree, that defendants sentence should be adjusted to reflect that he served only one prior prison term. Otherwise, we affirm.

FACTUAL BACKGROUND

At approximately 2:00 a.m. on the morning of January 24, 2007, Deputy Michael Bradbury went to the Beach Bums Bar & Grill in Apple Valley. Upon arrival, he observed about eight to 10 men fighting in the parking lot. He called dispatch for assistance and then approached the group of men. He made multiple commands for the group to disperse, to no avail. He observed a man named Lavon Green winning a fight with another person. The other person was already on the ground, but Green continued to punch and kick him. Deputy Bradbury yelled at Green to stop fighting and warned that he would use his taser gun if the fighting did not stop. Deputy Bradbury deployed the taser gun toward Green. The taser probes hit Green but had no effect, since they apparently did not penetrate his thick jacket. Green ran away, and Deputy Bradbury chased after him. As the deputy was chasing Green, Deputy Edward Kitchen joined the pursuit. Deputy Kitchen dropped his police radio. Officer Bradbury stopped to pick it up, but Deputy Kitchen continued the pursuit. Green eventually started running back toward the Beach Bums Bar & Grill. Deputy Kitchen was in full sprint chasing Green near the front of the bar, when defendant came out of nowhere and shoulder checked Deputy Kitchen. Both defendant and Deputy Kitchen fell to the ground. Green kept running, and Deputy Kitchen lost sight of him. Deputy Kitchen believed that defendant intentionally ran into him, since everybody else who was standing in front of the bar moved out of his way. Deputy Kitchen got a good look at defendant and noticed the clothes he was wearing. Once Deputy Kitchen got up from the ground and realized that Green had gotten away, he turned to find defendant, but defendant was gone.

Shortly thereafter, Deputy James Halterman arrived at the scene. Deputy Bradbury informed him that Green was on the run, so Deputy Halterman started to search the area. Deputy Halterman drove around, found Green, and detained him.

Meanwhile, Deputies Kitchen and Bradbury searched for defendant. They noticed a black Jaguar circling the parking lot in a suspicious manner. Deputy Kitchen stopped the car and conducted a vehicle check. Defendant and two females were in the car. Deputy Kitchen recognized defendant and told him to get out of the car. The deputy performed a patdown search and found a baggie of marijuana in defendants pocket. The deputy then searched the car and found more marijuana. Deputy Kitchen arrested defendant.

Deputy Kitchen read defendant his Miranda^[2]rights, which defendant waived, and then asked defendant why he ran into him (the deputy) earlier. Defendant informed Deputy Kitchen that Green was his brother and that he (defendant) intentionally ran into Deputy Kitchen during the chase to help his brother avoid being arrested. Defendant also admitted he knowingly possessed the marijuana, but stated that he was just holding it for someone else.

ANALYSIS

I. The Jury Was Properly Instructed on Count 1 with CALCRIM No. 2651

Defendant contends the trial court committed several instructional errors with regard to the charge of preventing an officer from performing his duties. ( 69.) He contends the court erred by: 1) instructing the jury as to the elements of a violation of section 69 with CALCRIM No. 2651 instead of CALCRIM No. 2652; 2) failing to clearly instruct the jury that he was not guilty of preventing an officer from performing his duties if Deputy Kitchen was acting outside the scope of his lawful duties; and 3) failing to instruct the jury on the lesser included offense of resisting arrest under section 148, subdivision (a)(1). We find no error.

A. Background Proceedings

The prosecution filed a second amended information charging defendant with a violation of section 69, alleging that he unlawfully attempted by means of threats and violence to deter and prevent Deputy E. Kitchen . . . from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of his/her duty.

The court and both counsel discussed how to instruct the jury as to the alleged violation of section 69. Defense counsel requested the court to instruct the jury with CALCRIM No. 2652, and to also instruct the jury that section 148 was a lesser included offense. The prosecution requested the court to instruct the jury with CALCRIM No. 2651 because it contained a specific intent element requiring defendant to have used force or violence against Deputy Kitchen with the specific intent of deterring him from performing his lawful duties. In contrast, CALCRIM No. 2652 did not have a specific intent element. The prosecutions theory was that defendant intentionally collided with Deputy Kitchen to stop him from chasing Green. The court agreed with the prosecution and decided to instruct the jury with CALCRIM No. 2651. The court explained that CALCRIM No. 2651 was appropriate because deterring an officer by threat or violence was a specific intent crime, and the instruction required the prosecution to meet a higher standard of proof. The court concluded that CALCRIM No. 2651 was applicable to the facts in this case.

B. The Court Properly Instructed the Jury with CALCRIM No. 2651 Rather than CALCRIM No. 2652

The defendant is entitled to have the jury instructed on the law applicable to the evidence he presents. (People v. Ratliff (1986) 41 Cal.3d 675, 694.)

Defendant was charged with a violation of section 69, which provides: Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment. The statute sets forth two separate ways in which an offense 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. [Citation.] (In re Manuel G. (1997) 16 Cal.4th 805, 814 (Manuel G.).) The two ways of violating section 69 have been called attempting to deter and actually resisting an officer. [Citation.] (People v. Lacefield (2007) 157 Cal.App.4th 249, 255 (Lacefield).) These two offenses have different elements. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530.) The central requirement of the first type of offense under section 69 is an attempt to deter an executive officer from performing his or her duties imposed by law . . . . (Manuel G., supra, at p. 815.) It also requires a specific intent to interfere with the executive officers performance of his duties . . . . (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153.)

The accusatory pleading here alleged both types of offenses in section 69, but the prosecution expressly relied on the first type of offense, based on defendants intentional collision with Deputy Kitchen. The jury was therefore given CALCRIM No. 2651, which sets forth the elements of the section 69 offense as: 1. The defendant willfully and unlawfully used []violence[] to try to (prevent/ [or] deter) an executive officer from performing the officers lawful duty; [] AND [] 2. When the defendant acted, (he) intended to (prevent/ [or] deter) the executive officer from performing the officers lawful duty. The jury was further instructed that [s]omeone commits an act willfully when he does it willingly or on purpose. The jury was also instructed that [a]n executive officer is a government official who may use his own discretion in performing his job duties. (Italics in original.)

CALCRIM No. 2651 was the appropriate instruction because it reflected the general principles of law applicable to the evidence presented at trial. The prosecutions theory of the case was that defendant intentionally ran into and knocked down Deputy Kitchen in an effort to allow his brother to escape from the police. In other words, defendant used violence to intentionally prevent or deter Deputy Kitchen from performing his lawful duty.

Defendant argues that the court should have instructed the jury with CALCRIM No. 2652, since the facts of the case supported such instruction. Defendant is incorrect. CALCRIM No. 2652 sets forth the elements of the second type of offense in section 69, resisting an officer. (Lacefield, supra, 157 Cal.App.4th at pp. 255-256.) The evidence here did not show that defendant actually resisted an officer. Accordingly, the prosecution did not rely on the second type of offense. Moreover, the prosecutions theory was that defendant intentionally prevented or deterred Deputy Kitchen from performing his lawful duties. The court was required to instruct the jury as to the intent element of the crime. (People v. Flood (1998) 18 Cal.4th 470, 480.) Since CALCRIM No. 2651 has an intent requirement, but CALCRIM No. 2652 does not (Lacefield, supra, at p. 256), the court properly chose to instruct the jury with CALCRIM No. 2651.

Defendant further appears to contend that CALCRIM No. 2651 only applies where a threatof violence, or an effort to prevent an Officer from future actions, is made. However, this claim disregards the plain language of section 69. The first type of offense in section 69 does not require a threat of violence, or an effort to prevent future actions. (See Lacefield, supra, 157 Cal.App.4th at p. 255.) Rather, section 69 provides that a person is prohibited from attempting to prevent or deter an officer from performing his lawful duties by means of any threat or violence. ( 69, italics added.) Based on defendants use of actual violence to prevent Deputy Kitchen from performing his duties, the court here omitted references to any threat from its jury instruction. Instead, it set forth the first element of the section 69 offense as: The defendant willfully and unlawfully used []violence[] to try to (prevent/ [or] deter) an executive officer from performing the officers lawful duty.

In sum, the court properly instructed the jury with CALCRIM No. 2651.

C. The Court Clearly Instructed the Jury that Deputy Kitchen Must Have Been Performing a Lawful Duty at the Time Defendant Collided with Him

Defendant argues the jury should have been clearly instructed that he was not guilty of preventing an officer from performing his duties if Deputy Kitchen was acting outside the scope of his lawful duties. He claims that the courts confusing instructions on the Peoples duty to prove that Deputy Kitchen was lawfully performing his duties at the time of the incident effectively eliminated that element of the offense and lowered the Peoples burden of proof. We conclude that the jury was properly instructed.

The jury was specifically instructed that, in order to prove defendant was guilty of violating section 69, the People had to prove that: 1. The defendant willfully and unlawfully used []violence[] to try to (prevent/ [or] deter) an executive officer from performing the officers lawful duty; [] AND [] 2. When the defendant acted, (he) intended to (prevent/ [or] deter) the executive officer from performing the officers lawful duty. (Italics added.) Moreover, the jury was instructed that [a] peace officer is not lawfully performing his duties if he is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his duties). The jury was instructed as to what constitutes a lawful arrest and detention, and the difference between reasonable and unreasonable use of force. In addition, the jury was specifically instructed that the People had to prove beyond a reasonable doubt that Deputy Kitchen was lawfully performing his duties as a peace officer. These instructions were clear.

Defendant argues that the instructions were confusing and contradictory since they included the following statements: An executive officer is a government official who may use his own discretion in performing his job duties. . . . [] The executive officer does not need to be performing his job duties at the time the threat is communicated. (Emphasis added by defendant.) There is nothing confusing or contradictory about the statement that an officer may use his discretion in performing his job duties. As to the latter statement, defendant claims it says an officer need not be performing his duties at the time of appellants actions. However, defendant misreads the clear instruction, which states that the officer does not need to be performing his duties at the time the threat is communicated. In any event, the jury would have disregarded that part of the standard instruction, in view of the courts omission of any reference to a threat, since defendant only used violence to prevent Deputy Kitchen from performing his duties.

Defendant further contends that it was doubtful Kitchen had reasonable suspicion Lavon Green was involved in criminal activity or had probable cause to believe he had committed a felony outside his presence as required to justify an arrest. He then asserts that a police officer unlawfully detaining someone is not lawfully performing his duties. However, the record shows that Deputy Kitchen was performing a lawful duty at the time defendant knocked him down. He was lawfully assisting Deputy Bradbury in his pursuit of Green. Deputy Kitchen testified that when he first arrived at the scene, he saw Deputy Bradbury actively pursuing Green. Deputy Kitchen observed that Green had taser dart wires hanging from his back, and he knew that officers do not just tase anybody for any nonapparent reason. Deputy Kitchen had every reason to believe Green was involved in some type of criminal activity to warrant Deputy Bradbury pursuing him. Thus, Deputy Kitchen was properly and lawfully assisting Deputy Bradbury in the pursuit, when defendant knocked him to the ground.

We conclude that the instructions given to the jury left no question that, to find defendant guilty of the charged crime, he must have prevented or deterred Deputy Kitchen from performing a lawful duty. Moreover, Deputy Kitchen was performing a lawful duty. Thus, defendants claim fails.

D. The Court Did Not Err in Failing to Instruct the Jury as to Section 148 as a Lesser Included Offense

Defendant contends the court committed reversible error in failing to instruct on the lesser included misdemeanor offense of section 148, subd. (a)(1), since there was an evidentiary basis for the instruction. Defendants claim is meritless.

Section 148, subdivision (a)(1) provides that [e]very person who willfully resists, delays, or obstructs any public officer, peace officer, . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.

Defendant relies upon Lacefield to support his argument that there was evidence from which the jury could have found that he violated section 148, subdivision (a)(1), rather than section 69. However, in Lacefield, the prosecution expressly relied on the second type of offense (resisting an officer) in section 69, based on the defendants conduct. (Lacefield, supra, 157 Cal.App.4th at p. 255-256.) As defendant here acknowledges, Lacefield held that section 148, subdivision (a)(1) was a lesser included offense of the second type of offense in section 69. (Lacefield, supra, at p. 259.) In the instant case, the prosecution relied upon the first type of offense in section 69 (attempting to deter). Thus, Lacefield does not support his claim.

In addition, defendant contends that the cumulative effect of the courts failure to instruct on section 148, subdivision (a)(1), the confusing instructions given on the elements of the charged offense, and the courts failure to clearly instruct the jury on the Peoples duty to prove that Deputy Kitchen was lawfully performing his duties at the time of the incident, mandates reversal. Inasmuch as we have rejected each and every claim of error individually, we find no cumulative error sufficient to have affected the outcome of the trial to defendants detriment.

II. Defendants Sentence Should Be Corrected to Reflect One Prison Prior

Defendant contends the court erroneously imposed two 1-year prior prison term enhancements, when he in fact only served one prior prison term. The People correctly concede.

On April 3, 2007, the court held a bifurcated bench trial regarding defendants prior conviction and prior prison term allegations. The prosecution presented the court with a 969B packet containing documentation pertaining to defendants prior convictions. The documents indicated that defendant had been convicted in two separate cases. He was convicted of grand theft ( 487) in case number FVI019461, and possession of a controlled substance (Health & Saf. Code,  11351) in case number FVI022226. Defendant was sentenced in both cases on the same day, October 21, 2005. On the grand theft conviction, he was sentenced to a two-year prison term. On the controlled substance possession conviction, he was also sentenced to a two-year prison term. The sentences were ordered to run concurrent to each other. The court in the instant case found true the allegations that defendant had served two prior prison terms. It later sentenced defendant to a total state prison term of four years eight months, which consisted of the low term of 16 months on count 1, doubled to 32 months pursuant to the strike conviction, plus a one-year term for each of defendants prison priors, to run consecutive to the sentence in count 1.

Section 667.5, subdivision (b) provides that where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony. Courts have consistently recognized that this statutory language means that only one enhancement is proper where concurrent sentences have been imposed in two or more prior felony cases. (People v. Jones (1998) 63 Cal.App.4th 744, 747.)

Here, since defendant had two felony convictions but served only one prison term, only one sentence enhancement under section 667.5 is appropriate. (People v. Riel (2000) 22 Cal.4th 1153, 1203.) Accordingly, we must strike the redundant second prison term finding. [Citation.] (Ibid.) Thus, defendants sentence should be modified to a total of three years, eight months.

DISPOSITION

We strike the redundant second prior prison term finding under section 667.5, subdivision (b). The trial court is directed to amend the abstract of judgment and its minute order so as to reflect this modification and to forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. Otherwise, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

GAUT

J.

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^[1] All further statutory references will be to the Penal Code unless otherwise noted.

^[2]Miranda v. Arizona (1966) 384 U.S. 486.