P. v. Oropeza
Filed 4/24/13 P. v. Oropeza 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NOT TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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
(Shasta)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
MARIO LUIS OROPEZA,
Defendant and Appellant.
C068391
(Super. Ct. No. 10F8507)
A jury convicted defendant Mario
Luis Oropeza of, among other things, attempting to deter an officer from
performing any duty by means of threat or
violence. Defendant now contends (1)
the trial court erred in failing to instruct the jury on the lesser included
offense of willfully resisting, delaying or obstructing a public officer in the
discharge of his duties; (2) the trial court erred in failing to instruct the
jury on the requisite specific intent to deter or prevent a police officer from
performing his duty; and (3) the cumulative effect of the
prejudice.
We conclude (1) the trial court did
not have a sua sponte duty to
instruct on resisting an officer, because the crime of resisting an officer is
not a lesser included offense of attempting to deter an officer; (2) the trial
court properly instructed the jury on the requisite specific intent; and (3)
because there was no instructional error, the claim of cumulative prejudice
lacks merit.
We will affirm the judgment.
BACKGROUND
City of Redding Police Officer Nick Weaver saw a car drifting between two lanes and
pulled the car over. Defendant was in
the driver’s seat and his brother Israel Oropeza was in the front passenger
seat. Officer Weaver noticed that
defendant’s eyes were bloodshot, his speech was slurred, and he smelled of
alcohol. When asked if he had been
drinking, defendant said he drank two beers between noon and the time he was stopped, but he later
admitted drinking six beers. Officer
Weaver observed that defendant’s gait was unsteady, he had difficulty standing
up, and he swayed from side to side.
City of Redding Police Officer Brian Torum happened by the scene and stopped. Defendant told Officer Weaver he recently had
back surgery but he could perform field sobriety tests. Nonetheless, defendant was argumentative and
angry about having to perform the tests, prompting Officer Weaver to request
further backup. City of Redding Police Officer Jacob Provencio responded to the call. Officer Provencio was assigned as a DUI
(driving under the influence) specialist that night. Officers Weaver and Provencio wore their
Redding Police Department uniforms and drove marked patrol cars.
After observing defendant’s poor
performance on the field sobriety tests, Officer Weaver informed defendant that
he was under arrest for suspicion of driving under the influence. Officer Weaver instructed defendant to place
his hands behind his back. But defendant
threw his baseball cap on the ground, took a few steps toward Officer Provencio
and “bladed†his stance like a boxer would assume while fighting.
Officer Weaver took out his
baton. Officer Provencio pointed his
Tazer at defendant because he did not know defendant’s intention and defendant
did not comply with Officer Weaver’s instruction. At that point defendant complied with Officer
Weaver’s request to put his hands behind his back, and defendant was handcuffed
and placed in the back of a patrol car.
While Officers Weaver and Torum
evaluated whether defendant’s brother was too intoxicated to leave the scene,
Officer Provencio remained near the patrol car to complete paperwork. Defendant was yelling. When Officer Provencio turned on the dome
light inside the patrol car so he could see what defendant was doing, defendant
asked Officer Provencio in a menacing voice if he had a family. Defendant’s demeanor was angry and
threatening when he asked the question.
Officer Provencio asked why defendant wanted to know, and defendant
laughed and said at least twice, “Your family is dead. Your family is fucking dead.†Officer Provencio opened the rear passenger
door of the patrol car and asked defendant if he was threatening Officer
Provencio’s family. Defendant lunged at
Officer Provencio. Using his hand,
Officer Provencio grabbed the front of defendant’s shirt and pushed defendant
back in the patrol car. Defendant
continued to say that Officer Provencio’s family was dead.
When Officer Provencio activated his
digital voice recorder, defendant mouthed the words that Officer Provencio’s
family was dead but did not say the words aloud. Officer Provencio asked defendant what he was
saying. Defendant denied that he said
anything and denied that he had threatened Officer Provencio’s family. Defendant called Officer Provencio a “fucking
faggot liar.†A recording of what was
captured on Officer Provencio’s digital recorder was played at trial.
Officer Weaver subsequently opened
the door of the patrol car to ask defendant whether he would submit to a breath
or blood test. Defendant responded,
“Fuck you, nigger.†Defendant said
Officer Weaver was “fucking dead†and spit on Officer Weaver, striking him in
the chest.
When Officer Weaver instructed
defendant to lean his head out of the car so the officers could put a spit hood
over his head,
name="_ftnref1" title="">[1] defendant refused and tried to step out of
the patrol car. Officer Weaver ordered
defendant to remain in the car.
Defendant later complied by placing his head out of the car and Officer
Weaver put a spit hood on defendant.
Defendant continued yelling and
cursing, and accused one of the officers of punching him in the face. Defendant said someone called him a “spicâ€
to “get†defendant. Defendant threatened
that Officer Provencio would lose his job because he was racist and someone had
hit defendant.
At trial, Officers Weaver, Torum and
Provencio denied referring to defendant as a “spic.†The officers said they did not hear any
officer use that term. The officers also
denied hitting defendant or seeing anyone hit defendant.
Because defendant refused to submit
to a breath, urine or blood test, Officer Weaver drove defendant to the Shasta Regional Medical Center for a forced blood draw. Defendant remained argumentative with Officer
Weaver and was angry about his arrest and having his blood drawn. Defendant’s blood had a .16 percent blood
alcohol concentration.
Defendant told Officer Weaver that
an officer placed a hand around defendant’s throat and punched defendant in the
right eye. Defendant complained that his eye was swollen
shut. Officer Weaver photographed
defendant’s face; he did not see any injury to defendant’s face or eye, or any
marks on defendant’s neck. The photographs
were received into evidence at the trial.
Defendant testified at trial. He admitted drinking on the evening of his
arrest and driving home using back roads so he would not be caught. Defendant admitted he lied to Officer Weaver
about the number of beers he had consumed because he did not want to get caught
for drinking and driving. Defendant said
he complied with Officer Weaver’s instructions and elected to take a blood test
when Officer Weaver asked him to take a breathalyzer test.
According to defendant, things got
scary after he refused to take a breathalyzer test. Defendant was asked whether he was affiliated
with a gang and if he had any tattoos.
He was told that he was wearing gang paraphernalia because he was
wearing a blue University of Nevada hat.
Defendant denied any gang affiliation and questioned what that had to do
with anything. Defendant denied throwing
his hat down.
Defendant testified that Officer
Torum pulled out a baton. In response,
defendant turned around, pulled down the back of his pants, and said he just
had major back surgery and was not looking to fight. Defendant said he complied when directed to
put his hands on his head, but he was hit from the back and slammed onto the
hood of the patrol vehicle. His hand was
twisted to his back and he was placed in handcuffs and in the back of a patrol
car.
According to defendant, Officer
Provencio arrived at the scene after defendant was placed in the patrol
car. Defendant heard Officer Provencio
yell at Israel about having a prescription bottle, and defendant yelled that
the prescription bottle belonged to defendant.
Defendant said Officer Provencio then ran to the patrol car, opened the
back passenger door, head-butted defendant, and said “Whoops. Watch your head. Watch your head.†Defendant said Officer Provencio also smacked
the side of defendant’s head, pushed defendant back with his hand and choked
defendant’s throat so that defendant could not breathe. Defendant said he coughed in Officer
Provencio’s face while the officer was choking defendant, at which point
Officer Provencio called defendant a “spic.â€
But defendant denied spitting at any of the officers. He said he spit at the window of the patrol
car because he was angry and Officer Weaver was near the car when he spit.
Defendant admitted being angry and
admitted cursing, but only after he was slammed onto the hood of the patrol
car. He denied threatening Officer
Provencio’s family but admitted saying “You’re dead, you’re fucking dead†in
reference to all the officers. Defendant
also admitted saying “you wait and see who I am. Wait and see who I am.†He testified he was telling the officers
their treatment of defendant could affect their jobs. Defendant said he was referring to Officer
Provencio when he said “Fucking bitch, this guy hit me.†Defendant also admitted saying “Fuck you,
nigger.â€
The prosecution called Officers
Provencio and Weaver as rebuttal witnesses.
They said defendant was not slammed onto the hood of the patrol
car. Officer Provencio denied
head-butting defendant and Officer Weaver denied saying defendant was wearing
gang paraphernalia.
The jury convicted defendant of
attempting, by means of threat or violence, to deter or prevent an executive
officer from performing a duty imposed by law (Pen. Code, § 69
alcohol or drugs (Veh. Code, § 23152, subd. (a) -- count 2); driving with 0.08
percent or more, by weight, of alcohol in his blood (Veh. Code, § 23152, subd.
(b) -- count 3); and assault on a peace officer (§ 241, subd. (c) -- a lesser
included offense to the charge of battery asserted in count 4). In a bifurcated proceeding, the trial court
found true an enhancement allegation that defendant was previously convicted of
driving under the influence. The trial
court suspended imposition of sentence and placed defendant on probation for
five years on the condition, among others, that he serve 180 days in jail.
DISCUSSION
I
Defendant contends that, in
connection with the count 1 charge of attempting to deter an executive officer
from performing any duty by means of threat or violence (§ 69), the trial
court failed in its sua sponte duty to instruct the jury on the lesser included
offense of willfully resisting, delaying or obstructing a public officer (§
148, subd. (a)(1)).
Section 69 “sets forth two separate
ways in which an offense can be committed.â€
(In re Manuel G. (1997) 16
Cal.4th 805, 814.) The first is
attempting to deter an executive officer from performing any duty by means of
threat or violence. (§ 69.)
second is knowingly resisting, by force or violence, an executive officer in
the performance of his duty. (§
69.) Although count 1 of the information
alleged both ways of committing the offense, the People elected at the
beginning of trial to proceed only on the first way, the attempting-to-deter
offense. Based on that election, the
trial court only read to the jury the allegation regarding attempting to deter,
and instructed the jury accordingly.
Defendant contends the trial court
had a sua sponte duty to instruct on section 148, subdivision (a)(1),
finding that defendant resisted the officers rather than deterring or
preventing the performance of their duties.
Defendant relies on
Cal.App.4th 249, but that case does not assist him. The Court of Appeal in Lacefield held that a section 148, subdivision (a)(1) violation is
a lesser included offense of the resisting theory under section 69, but it also
recognized that a section 148, subdivision (a)(1) violation is not a lesser
included offense of the attempting-to-deter theory. (Lacefield,
supra, 157 Cal.App.4th at pp. 257-258.)
Defendant does not claim that a
section 148, subdivision (a)(1) violation is a lesser included crime of the
attempting-to-deter offense. Because the
People did not proceed on the resisting theory but instead proceeded under the
attempting-to-deter theory, the trial court did not have a sua sponte duty to instruct
on section 148. (People v. Cash (2002) 28 Cal.4th 703, 737; People v. Miller (1994) 28 Cal.App.4th 522, 526.)
Defendant next argues in the text of
his opening brief, but not in a heading, that the trial court should also have
instructed the jury on the second way that section 69 can be violated, the
resisting offense. He says the trial
court should not have accepted the prosecutor’s election of only one
theory. The Attorney General responds
that there is no obligation to instruct the jury on a crime for which defendant
is not being prosecuted.
In People v. Lopez (2005) 129 Cal.App.4th 1508 (Lopez), the defendant was charged with both types of section 69
offenses but the trial court instructed the jury only on the resisting
offense. (Lopez, supra, 129 Cal.App.4th at pp. 1530-1531, fn. 15.) The appellate court held the trial court had
a sua sponte duty to instruct the jury on the attempting-to-deter offense
because in that case, the prosecutor relied on that theory. (Id. at
p. 1531.)
But here, unlike in
resisting offense and chose not to proceed under that theory. The People were within their authority to
elect to prosecute defendant for the attempting-to-deter offense only. (People
v. Birks (1998) 19 Cal.4th 108, 134-136; People v. Brigham (1989) 216 Cal.App.3d 1039, 1051-1052 [rejecting
argument that the “People's election to prosecute a case solely as an aiding
and abetting crime, which case is equally susceptible of a conspiracy
prosecution, remove[d] unfairly the conspiracy defenses he would otherwise
assertâ€].) When the trial court read the
charges against defendant, it did not inform the jury that defendant was
accused of resisting an executive officer in the performance of his
duties. And the jury was never asked to
decide whether defendant violated section 69 on that theory. Under these circumstances, the trial court
had no sua sponte duty to instruct the jury on the resisting offense. (People
v. Cash, supra, 28 Cal.4th at p. 737; People
v. Silva (2001) 25 Cal.4th 345, 371; People
v. Prettyman (1996) 14 Cal.4th 248, 269-270; Lopez, supra, 129 Cal.App.4th at pp. 1530-1531;
Cal.App.4th 1383, 1387; People v. Miller,
supra, 28 Cal.App.4th at p. 526.)
In arguing that the trial court
should have instructed on both types of section 69 offenses, defendant points
to the conduct of the prosecutor during trial.
But the record does not show error.
During the prosecutor’s opening
statement, she described what she believed the evidence would show and said she
would ask the jury to find the defendant guilty of threatening Officer
Provencio. The prosecutor did not say
that the jury would be asked to determine whether defendant resisted a peace
officer in the performance of his duties, and she did not use the words
“resist†or “resisting.â€
Then, in discussing count 1 during
her closing argument, the prosecutor described the elements of an
attempting-to-deter offense. She played
the audio recording made by Officer Provencio and focused on Officer
Provencio’s testimony that defendant said Officer Provencio’s family was
dead. The prosecutor also pointed out
instances where defendant displayed aggression toward Officer Provencio. The prosecutor argued that defendant
threatened Officer Provencio’s family, used violence against Officer Provencio,
and intended to prevent Officer Provencio from doing his duty. Those arguments tracked the elements of the
attempting-to-deter offense on which the jury was instructed. The prosecutor did not say, and did not ask
the jury to find, that defendant resisted the officers in the performance of
their duties. Defendant has not
demonstrated that the prosecutor’s comments could have misled the jury.
To the extent defendant asserts
other purported contentions without including them in a separate heading and
without adequate analysis or citations to the record or to authority, they are
forfeited. (Heavenly Valley v. El
Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1345-1346
& fn. 17; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn. 4;
Cal. Rules of Court, rule 8.204(a)(1)(B).)
II
Defendant next contends the trial
court erred in failing to instruct the jury on the requisite specific intent to
deter or prevent a police officer from performing his duty. He notes that an attempt done with the intent
to delay an officer, rather than to deter or prevent an officer, is not
sufficient for a conviction on count 1.
“We determine whether a jury
instruction correctly states the law under the independent or de novo standard
of review. [Citation.] Review of the adequacy of instructions is
based on whether the trial court ‘fully and fairly instructed on the applicable
law.’ [Citation.] ‘ “In determining whether error has been
committed in giving or not giving jury instructions, we must consider the
instructions as a whole . . . [and] assume that the jurors are
intelligent persons and capable of understanding and correlating all jury
instructions which are given.â€
[Citation.]’ [Citation.] ‘Instructions should be interpreted, if
possible, so as to support the judgment rather than defeat it if they are
reasonably susceptible to such interpretation.’
[Citation.]†(
1082, 1088.)
Applying these principles here, we
conclude there was no error. The
attempting-to-deter offense is a specific intent crime. (People
v. Gutierrez (2002) 28 Cal.4th 1083, 1154; People v. Nishi (2012) 207 Cal.App.4th 954, 967;
1530.) A violation requires the intent
to interfere with an executive officer’s performance of his duties. (People
v. Gutierrez, supra, 28 Cal.4th at pp. 1153-1154; In re Manuel G., supra, 16 Cal.4th at p. 810; People v. Nishi, supra, 207 Cal.App.4th at p. 967.) The trial court instructed the jury
accordingly.
The trial court instructed the jury
consistent with CALCRIM No. 2651, directing them that in order to find
defendant guilty on count 1, the People must prove (1) defendant willfully and
unlawfully used violence or a threat of violence to try to prevent or deter an
executive officer from performing the officer’s lawful duty, and (2) when the
defendant acted, he intended to prevent or deter the executive officer from
performing the officer’s lawful duty.
The trial court reiterated that the People must prove beyond a
reasonable doubt that defendant acted with the intent to prevent or deter an
executive officer from performing the officer’s lawful duty. The jury was not instructed that intent to
delay is an element of a section 69 violation.
There was no error. (In re
Manuel G., supra, 16 Cal.4th at p. 815.)
Accordingly, we do not discuss defendant’s claims of prejudice.
III
Defendant claims the cumulative
effect of the instructional errors resulted in prejudice. Because we conclude there was no error, the
claim lacks merit.
DISPOSITION
The judgment is affirmed.
MAURO , J.
We concur:
HULL , Acting P. J.
HOCH , J.
name="_ftn1" title="">[1] A spit hood is made of mesh (similar to what
a beekeeper wears on his or her head) and is placed on a detained person who
spits at officers. The hood does not
affect the ability to breathe.
name="_ftn2" title="">[2] Officer Provencio testified that “spic†is a
derogatory term used to refer to someone of Hispanic descent.
