P. v. Rodriguez

Filed 10/18/07 P. v. Rodriguez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Hector Rodriguez was convicted of assault with a deadly weapon on a peace officer, deterring or preventing an officer, and battery after he fought with an undercover detective. Defendant argues there was insufficient evidence that he knew the man he was fighting with was a peace officer. Defendant also argues the trial court failed to instruct on the specific intent required to prove the charge of deterring an officer. We agree with defendant on this point and reverse his conviction for deterring an officer, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Detective Michael Roberts was working undercover dressed in plainclothes and sitting in an unmarked police car when he saw defendant start to swing his fists when he approached another man, Angel Sandoval. Sandoval walked away and defendant got into a car parked nearby. Shortly thereafter, defendant got out of the car holding a vodka bottle like you would a club, and began to chase Sandoval. Detective Roberts got out of his car because he was concerned that defendant would hit Sandoval with the bottle. Roberts grabbed his gun and approached the two men, yelling repeatedly, Police officer, drop the bottle, get down on the ground.

Defendant stopped chasing Sandoval and Sandoval backed away. Roberts made eye contact with defendant, repeatedly identified himself as a police officer, and directed defendant to drop the bottle and get down on the ground. Defendant said to Roberts, Why are you doing this? I didnt do anything. When defendant did not drop the bottle, Roberts grabbed defendants shirt in an attempt to pull him to the ground. Defendant tried to pull Robertss gun out of his hand. When Roberts pulled the gun back, defendant punched Roberts in the face. Roberts then hit defendant in the face with his open palm, and again tried to push him to the ground.

Defendant struck Roberts on the back of the head with the bottle, causing Roberts to fall to his knees. Defendant fell too, and Roberts got on top of him. Roberts repeated that he was a police officer and told defendant he was under arrest. Defendant struggled and tried again to grab Robertss gun. Both men got to their feet, but defendant grabbed Robertss leg and again caused him to fall to the ground on his knees. Defendant struck Roberts repeatedly with his fists, while Roberts yelled that he was a cop. Roberts felt he was about to lose consciousness, and he pointed the gun at defendants stomach and prepared to pull the trigger. Defendant ran back to the parked car and got in.

Roberts approached the car with his gun drawn, told the driver he was a police officer, and instructed him not to move the car. The driver initially agreed, but when Roberts opened the drivers door to take the keys, the driver put the car in gear and drove away. Other officers pursued the car and arrested defendant. Sandoval was brought to the scene of the arrest and positively identified defendant as the one who attacked him and Roberts. Roberts was taken to a hospital where he received two staples to close a wound to his head.^[1]

Defendant was charged with assault with a deadly weapon on a peace officer, resisting or deterring an executive officer, and misdemeanor battery. Enhancements were charged for personal infliction of great bodily injury and use of a deadly weapon.

Sandoval testified through an interpreter that defendant tried to pick a fight with him when Sandoval was dancing with his girlfriend earlier that evening. Sandoval declined to fight. Later, defendant again approached Sandoval at the 7-11 and started hitting him. Sandoval moved away and defendant went to his car. When defendant got back out of the car, he was holding a bottle and he told Sandoval he was going to break it over his head. Sandoval ran away and defendant pursued him.

Then Sandoval saw another man get out of a car holding a gun. Sandoval did not realize the man was a police officer, but sensed the man was going to help him. The man pointed the gun at defendant and said, Police, put the bottle down. Put the bottle down, police. Defendant said, No problem. No problem.^[2] Then he hit the man over the head with the bottle and defendants friends joined in the fight. Defendant ran back to the car and it drove away. Two vodka bottles were later found in the car. The only fingerprint recovered from the bottles did not match that of defendant, nor did there appear to be blood or hair on either bottle. When he was arrested, defendant had scratches on his chest, hands, neck, forehead, and right arm, and his shirt appeared to be stained with blood.

Defendant testified that he spoke some English, but requested an interpreter to make sure he fully understood the proceedings. He said he had been drinking alcohol earlier that evening and had words with Sandoval at a bar.^[3] Defendant admitted that he may have started the fight at the 7-11 and that he hit Sandoval in the face. But he denied chasing Sandoval with a bottle, or telling the officer at the police station that he was angry that Sandoval tried to run away from him.^[4] Defendant thought the man with the gun was a friend of Sandovals. Defendant heard the man say, Stop, motherfucker, and the man threatened to kill him. Defendant testified that he did not hear the man identify himself as a police officer and denied he had previously told officers the man had ordered him to the ground. Defendant said the man with the gun threw a punch at him and they started fighting and fell to the ground. Defendant grabbed the mans hand to move the gun away and fought with him in order to avoid being shot. He never thought the man was a police officer.

In rebuttal, the People presented the testimony of the police officer who interviewed defendant after his arrest.^[5] Defendant told the officers he fought with Sandoval earlier that evening, and again when they met at the 7-11. When Sandoval lost the fight and ran away, defendant said he got a bottle out of the car and chased him. Defendant was angry with Sandoval and intended to hit him with the bottle. Another person suddenly appeared holding a gun and told defendant to get on the ground. Defendant tried to push the gun away, crouched, and swung at the man. He was unsure if he hit the man with his hands or with the bottle, but knew he made contact. Defendant did not remember the man identifying himself as a police officer and was unsure whether he was an officer. During the interview, one of the officers noticed defendant smelled of alcohol and his eyes were a little watery and bloodshot. But defendant did not appear drunk, and conversed like anybody else would who had a couple of drinks.

The jury found defendant guilty as charged. The court denied probation and imposed a four-year midterm sentence for the assault with a deadly weapon upon a peace officer. The court struck the enhancements, and pursuant to Penal Code section 654, stayed the sentence for deterring an officer. The court also imposed a concurrent 90-day sentence for the misdemeanor battery that was designated to have been served and discharged. Defendant timely appealed.

DISCUSSION

A. Sufficiency of the Evidence

Defendants conviction for assault upon a peace officer requires that the prosecution prove that the person who committed the assault knew or reasonably should have known that the other person was a peace officer. (See People v. Finney (1980) 110 Cal.App.3d 705, 713.) Similarly, willfully deterring or preventing an officer from the performance of a lawful duty requires the prosecution to prove the defendant specifically intended to interfere with an executive officer. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154.)

Defendant argues the evidence was insufficient to convict him of these crimes because it did not establish that he knew or should have known that Roberts was a police officer. We disagree.

When we review a conviction to determine whether it is supported by sufficient evidence, we consider the evidence in the light most favorable to the judgment and whether any rational trier of fact could have found the crime proven beyond a reasonable doubt. (People v. Davis (1995) 10 Cal.4th 463, 509.) We consider neither credibility of the witnesses nor conflicts in the evidence. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Those are considerations vested with the trial court. (Ibid.) [U]nless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. (Ibid.) This is not a close case.

Roberts testified that he repeatedly identified himself as a police officer to defendant as he approached him, made eye contact with him, and told him to drop the bottle. Sandoval testified that he heard Roberts say, Police, put the bottle down. Put the bottle down, police. After defendant struck Roberts with the bottle, Roberts again said he was a police officer and told defendant that he was under arrest. Defendant continued to struggle, grabbed Robertss gun a second time, and punched Roberts several times.

Defendant argues that even if Roberts identified himself as an officer, his testimony did not establish that defendant either heard or understood him. But defendant testified he understood the words police, stop, drop the bottle, get on the ground, and youre under arrest. When Roberts first confronted defendant, defendant asked Roberts in English, Why are you doing this? I didnt do anything. Finally, while defendant testified that he did not know Roberts was a police officer, he previously told another officer that he was unsure about that. Substantial evidence supports the jurys conclusion that defendant knew or should have known that Roberts was a police officer. (See People v.Young, supra, 34 Cal.4th 1149, 1181.)

B. Jury Instructions on Deterring or Preventing an Officer Under Penal Code

Section 69

As we said above, the crime of deterring or preventing an officer from the performance of a lawful duty is a specific intent crime. (People v. Gutierrez, supra, 28 Cal.4th at pp. 1153-1154.) Defendant says the court committed prejudicial error because it erroneously instructed the jury that it is a general intent crime. We agree with defendant that his conviction for this offense must be reversed.

[D]efendant was charged with violating [Penal Code] section 69, which actually describes two related offenses, attempting to deter and actually resisting an officer. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530, fn. omitted.) Here, the jury was instructed only on the crime of deterring or preventing an officer from the performance of his duties. (RT 625-626) The error here arises because the court instructed the jury that all the charges against defendant were general intent crimes. But under section 69, deterring or preventing an officer from the performance of his duties is a specific intent crime. (People v. Gutierrez, supra, 28 Cal.4th at pp. 1153-1154; People v.Lopez, supra, at p. 1530.) It was the courts duty to sua sponte instruct the jury on the connection between the charged crimes and the specific intent required to commit them. (People v. Alvarez (1996) 14 Cal.4th155, 220.) Its failure to do so was error. We also conclude that the error was prejudicial.

The courts failure to instruct that deterring an officer is a specific intent crime prevented the jury from considering whether defendants voluntary intoxication constituted a defense.^[6] [A] defendants intoxication might create a reasonable doubt that he had the specific intent to deter or prevent a police officer. (People v.Lopez, supra, 129 Cal.App.4th at p. 1531.) Even though the court instructed the jury that it could consider defendants voluntary intoxication in deciding whether defendant knew Roberts was a police officer, the court refused to instruct that defendants voluntary intoxication could negate his specific intent.

The People argue the failure to instruct was harmless error because defendants voluntary intoxication was rejected as an excuse for his claimed inability to realize Roberts was an officer. The People say that because the jury rejected the notion that [defendant] did not know that Detective Roberts was a peace officer[,] . . . it [is] likely that the jury would have similarly rejected the theory that [defendant] did not specifically intend to interfere with the detectives duties. We do not agree that the jurys rejection of defendants intoxication as it bore upon whether he could recognize Roberts was an officer, necessarily means the jury would have rejected his intoxication when it considered whether he harbored the mental state to commit the crime. The jury was never instructed on the specific intent required for the crime of deterring or preventing an officer from performing his duty, or on the possible legal effect of voluntary intoxication upon his ability to formulate that intent. In the circumstances, we cannot say there is no reasonable probability the error affected the outcome. (People v. Alvarez, supra, 14 Cal.4th at pp. 220-221.) Nor do the cases cited by the People hold otherwise. (See People v. Haley (2004) 34 Cal.4th 283, 314 [jury was instructed that voluntary intoxication could negate specific intent required for other crimes of which it convicted the defendant]; People v. Heard (2003) 31 Cal.4th 946, 982 [jury necessarily determined the defendant formed the requisite specific intent, despite his consumption of drugs and alcohol, when it convicted him of other sexual offenses]; People v. Lewis (2001) 25 Cal.4th 610, 646 [jury necessarily rejected the defendants version of events when it convicted him of other specific intent offenses].) We therefore reverse defendants conviction under Penal Code section 69. (See People v. Alvarez, supra, at pp. 220-221 [prejudice is shown by a reasonable probability of an effect on the outcome].)

DISPOSITION

The conviction for deterring or preventing an officer is reversed. The judgment is otherwise affirmed.

_________________________

Siggins, J.

We concur:

_________________________

Pollak, Acting P.J.

_________________________

Horner, J.^*

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^[1] Robertss face was red and swollen and he suffered a major headache for several days, along with soreness in his neck and back. His knees were scraped, bruised, and sore, and he suffered scratches on his head, neck, and hand.

^[2] Sandoval testified Roberts also yelled at defendant, Stop, motherfucker. Sandoval did not mention that information to police who interviewed him on the day of the incident, and Roberts denied using those words during the altercation.

^[3] Defendant also claimed he did not take any substance other than alcohol, although he testified on cross-examination that he thought he used drugs but was not feeling the effects at the police station.

^[4] Defendant also denied telling an officer at the police station that he took a bottle from the car and started to run after Sandoval.

^[5] Another officer acted as an interpreter.

^[6] Defendant testified he drank alcohol and took drugs on the evening of the assault. The officer who interviewed defendant after his arrest testified defendant smelled of alcohol and had watery, bloodshot eyes. Defendant told the officer he had had seven drinks that evening. The court instructed the jury: If the evidence shows that the defendant was intoxicated at the time of the alleged crime, you should consider that fact in deciding whether defendant knew that Mr. Roberts was a peace officer. At sentencing, the court declined to impose the upper term and struck the great bodily injury allegation, in part because defendant was obviously under the influence of drugs and/or alcohol at the time of the offense. Thus, while the People contend there was no substantial evidence defendant was intoxicated, the record indicates otherwise.

^*Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.