P. v. Cooke
Filed 6/8/11 P. v. Cooke 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Yolo)
| THE PEOPLE, Plaintiff and Respondent, v. TRACY JUSTIN COOKE, Defendant and Appellant. | C064182 (Super. Ct. No. 091790) |
Convicted by a jury of two counts of felony resisting an officer by threats or force (Pen. Code, § 69)[1] and three counts of misdemeanor resisting an officer (§ 148, subd. (a)(1)), defendant Tracy Justin Cooke contends on appeal the misdemeanor convictions represent lesser-included offenses of his felony convictions, and must be dismissed. The People agree, and so do we.
BACKGROUND
All of the crimes arose from defendant’s reaction when officers responded to a neighbor’s late-night 911 call that defendant was drunk and had kicked in the neighbor’s front door.
When Officers Miller and Owens arrived on the scene, defendant was angry, aggressive and intoxicated. He shoved a notebook toward Officer Miller’s face and when officers’ efforts to calm defendant were unsuccessful, they attempted to arrest him for public intoxication. Defendant pulled away and tensed his muscles as though preparing to fight when the officers grabbed his arms. He ignored demands that he “stop resisting” and punched Officer Owens in the chest. Even when the officers forced defendant to the ground, he was “continually trying to grab” onto them; he continued to fight, curse at the officers, and hold onto Officer Owens’s arm. Owens and Miller broke off the struggle when Owens’s arm or wrist was hurt. A third officer, Sergeant Hartz, soon arrived; Hartz also tried to grab defendant’s arm, but he again resisted, twisting his body, pulling his arms away, and struggling. Eventually, officers placed defendant in handcuffs and a wrap restraint.
Officer Miller’s wrist was sprained; the bones in Officer Owens’s hand were fractured, and ligaments in her hand were torn and required surgery.
Defendant was charged with one count of felony resisting a peace officer resulting in great bodily injury (Officer Owens--count 1); two counts of resisting an executive officer by means of threats, force or violence (one each as to Officers Owens and Miller -- counts 2 and 3); two counts of battery with injury on a peace officer (one each as to Officers Owens and Miller -- counts 4 and 5); vandalism on the neighbor’s door (count 6), and public intoxication (count 7).
At trial, defendant testified and admitted resisting the officers’ early efforts to get his hands behind his back and jerking his hands away when they tried to grab his wrists. He also admitted pulling away from officers after Sergeant Hartz arrived and was attempting to arrest him. He denied punching Officer Owens and said he was only trying to maintain control of his arms and stay on his feet.
The jury found defendant guilty of two counts of felony resisting an executive officer by means of threats, force or violence (§ 69)(counts 2 and 3); it also found him guilty of vandalism and public intoxication (counts 6 and 7). The jury rejected the other three felony charges: it found him not guilty of resisting Officer Owen so as to cause great bodily injury (count 1), and acquitted him of charges he committed battery with injury on the two officers (counts 4 and 5). On each of counts 1, 4 and 5, however, the jury found defendant guilty of the lesser-included misdemeanor offense of resisting an officer (§ 148, subd. (a)(1).)
DISCUSSION
Defendant contends that counts 1 through 5 all involved crimes for which a misdemeanor act of resisting arrest was a lesser-included offense. He argues that his felony convictions on counts 2 and 3 for resisting an officer by force should have prompted the court to dismiss the misdemeanor resisting arrest convictions on counts 1, 4, and 5 -- lesser-included offenses of the original charges on those counts -- because misdemeanor resisting arrest is also a lesser included offense of counts 2 and 3. The People agree, as do we.
Although, generally, a defendant “may be convicted of any number of the offenses charged” (§ 954), he may not suffer multiple convictions based on lesser-included offenses. (People v. Medina (2007) 41 Cal.4th 685, 690, fn. 2, 701; People v. Reed (2006) 38 Cal.4th 1224, 1226.) “There is logic behind the rule prohibiting convictions for both a greater offense and a necessarily included offense: ‘If a defendant cannot commit the greater offense without committing the lesser, conviction of the greater is also conviction of the lesser. To permit conviction of both the greater and the lesser offense “‘“would be to convict twice of the lesser.”’” [Citation.] There is no reason to permit two convictions for the lesser offense.’ [Citation.] There is also no prejudice to the People if a court strikes, rather than stays, the conviction. If a greater offense is reversed on appeal, the lesser included offense may be revived by operation of law.” (People v. Medina, supra, 41 Cal.4th at p. 702.)
Here, defendant was convicted of felony resisting an executive officer, which is defined by section 69 as follows: “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.”
Section 69 thus “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.” (In re Manuel G. (1997) 16 Cal.4th 805, 814.) Although the information alleged both deterrence and resistance by force, the prosecutor elected to prosecute under the second theory only, and the jury was so instructed.
Defendant was also convicted of three violations of section 148, subdivision (a)(1), which provides in part: “Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty” has committed a punishable offense.
Penal Code section 148, subdivision (a)(1) is a lesser included offense to Penal Code section 69’s second type of violation, resisting an officer in the performance of his duty by the use of force or violence. (People v. Lacefield (2007) 157 Cal.App.4th 249, 257; People v. Carrasco (2008) 163 Cal.App.4th 978, 985.) “Because an accused cannot have resisted arrest forcefully without also having resisted arrest, . . . section 148, subdivision (a) is a lesser included offense to section 69’s second prong.”[2] (Id. at p. 985.)
Here, because defendant could not have resisted Officers Owens and Miller by force within the meaning of section 69 in violation of section 148, subdivision (a)(1), his convictions for the lesser-included offenses must be stricken. (See People v. Medina, supra, 41 Cal.4th at p. 702.)
DISPOSITION
The judgment is reversed and remanded for the trial court to strike defendant’s three misdemeanor convictions for violating section 148, subdivision (a)(1). The trial court shall forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
BLEASE , Acting P. J.
We concur:
NICHOLSON , J.
HOCH , J.
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