Opinion
A147471
05-16-2018
THE PEOPLE, Plaintiff and Respondent, v. ELLIOTT DARTARI CHANCE, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. C176557)
Defendant Elliott Chance was convicted of two counts of forcible resistance to an executive officer (Pen. Code § 69) and two counts of resisting arrest (Pen. Code § 148). He makes three arguments on appeal, the first two asserting failure to instruct on lesser included offenses, and the third insufficient evidence to support the jury finding that the officers were lawfully engaged in the performance of their duties. We conclude that the insufficient evidence argument fails. But we also conclude that the court should have instructed on lesser included offenses, and thus reverse the convictions on counts one and two.
All undesignated statutory references are to this code.
BACKGROUND
The Facts
On the morning of June 3, 2015, defendant went to the downtown Berkeley branch of Wells Fargo bank, and was referred to personal banker Hazel Garcia. Defendant told Garcia he had a problem with a suspected fraud, that $1500 had been wrongfully taken from his account, leaving a negative balance. He also told her he had rented a car from Hertz; that he had been followed; and that as he got out of the car in a gas station (with the keys), someone drove off in the car. Garcia said she could not simply credit defendant's account, that he had to deal with Hertz or the bank's fraud unit.
Defendant became agitated, and continued to insist that his account be credited, that "the system" was taking his money. This went on for some 30 minutes or so, to the point that Garcia was "getting kind of irritated . . . because [defendant] was being repetitive." Garcia asked branch manager Mandeep Dhindsa to deal with defendant. He agreed, and Garcia went on her break.
Dhindsa approached defendant at Garcia's desk, discussed his concerns, and confirmed the advice from Garcia. Dhindsa offered to call the fraud department, defendant accepted, and Dhindsa put defendant on a telephone speaker with someone in the fraud department. As will be seen, the call went on for some time, and was apparently interrupted at times, and defendant put on hold. On one occasion, while on hold, defendant told Dhindsa, " 'you know, if I was cooking and you came to my kitchen, I would serve you lunch.' " Dhindsa did not understand what defendant was trying to convey, and after many minutes of back and forth, Dhindsa began to feel uncomfortable with defendant, testifying that "[e]very time [the fraud agent] came back on, [defendant] wanted something else. He wanted to do something else. He wanted his money"
After some 40 minutes, the fraud agent came back on the line and denied the claim, apparently for the third time. Dhindsa realized defendant would not take "no" for an answer. Thus, and because he did not feel safe with defendant, Dhindsa decided to call the police to have defendant removed from the bank. With defendant still on the phone, Dhindsa went to another area of the bank and called the police.
Dhindsa testified he did not personally ask defendant to leave because he was unsure how he might react, and did not want a personal confrontation.
Around 10:45 a.m., Berkeley Police Officer David Marble arrived at the bank, joined moments later by Officer Peter Bjeldanes. Marble approached Dhindsa to inquire about the call. Dhindsa said " 'we've been with the customer an hour and 45 minutes; declined his case. There's nothing more to do for him. We just need him to leave.' " Dhindsa also said that defendant's behavior "became erratic," and he was concerned about defendant's statement that he thought people were following him and he "ran for his safety," at which time his car was taken.
The officers approached defendant, who was still on the phone seated at Garcia's desk, "aggressive" with the other person, upset and yelling. Defendant asked the officers, "what are you guys doing here? I didn't call you." Marble said, " 'I'm here to help you. Could I get you to step outside of the bank with me, so I can help you.' "
Defendant appeared irritated and said, " 'no, I'm not leaving the bank until I'm done with my phone call.' " He was, he said, a "sovereign citizen," the victim of fraud, and trying to get his money back. Marble testified that based on his training and experience someone who identifies himself as a "sovereign citizen" does not acknowledge laws and rules of society: "they think that the police have no authority over them, and can't tell them what to do." Marble told defendant to "[f]inish your phone call," and he and Bjeldanes stepped back to give defendant some privacy.
While they were talking to defendant, Marble had looked down at defendant's California identification card, noted his name and personal information, and then requested a records check, at the same time hoping to give defendant a chance to "calm down." A few minutes later, Marble learned that defendant had an outstanding $50,000 "no cite" warrant for his arrest based on charges of making criminal threats. A "no cite" warrant requires that the police physically take the subject into custody; cite and release is not an option. The officers determined to arrest defendant.
In light of defendant's agitated state and the fact he identified himself as a "sovereign citizen," the officers asked for backup. As Bjeldanes put it, "we were going to have to fight him." Marble said they "truly believed that [defendant] was going to resist in some fashion." A few minutes later, Berkeley Police Sergeant Cesar Melero and Officer Michael Ordaz arrived on the scene. The officers huddled, and agreed to approach defendant while he was still on the speakerphone. Marble and Melero, followed by Bjeldanes and Ordaz approached defendant from behind, and Marble grabbed defendant's right arm and said he was under arrest. Melero grabbed defendant's left arm, at which point defendant immediately stood up, causing his chair to "sho[o]t back." He looked at Marble and in a loud voice said " 'what for[?]' " Marble responded, " 'you're under arrest for a warrant.' "
Melero and Marble testified that they did not have the option of waiting until defendant finished his phone call, because defendant had already been on the phone for an extended period of time, he appeared agitated and had referred to himself as a "sovereign citizen," and the warrant required that he immediately be taken into custody.
Defendant immediately broke the grasp of both officers, and moved to the left as if he intended to go through the officers toward the back entrance. Melero was concerned defendant may have a concealed weapon in his loose clothing, and ordered the officers to " 'take him to the ground.' " Defendant yelled, " 'you are not going to arrest me,' " and said things like "[L]eave me alone" and " 'get the fuck off me.' " He also screamed that he was being abused, that he was a citizen of the United States, and that his constitutional rights were being violated.
Melero testified that defendant initially landed on his knees, and kicked backwards, "trying to hurt me," and that defendant kicked him a few times. Melero said, "my first priority was to control the kicking, so I grabbed his legs. And between all of us, we were able to flatten him on the ground and control his movement from kicking. However, his arms were still underneath, which caused me a great deal of concern, because I still didn't know if he had weapons on him."
Defendant refused the officers' directions to calm down and stop resisting, and ignored demands to move his arms behind his back. Marble pulled defendant's left arm, without success, and was surprised by defendant's strength. Melero, too, was surprised by defendant's strength, and he called for additional officers, a "Code 3" that required immediate response with sirens and lights. Marble told the other officers to continue to hold defendant while additional officers were summoned. Meanwhile, defendant continued "flailing around," "trying to wriggle" out from the officers' grasp.
Poonam Lata, a bank employee who worked at a desk adjacent to Garcia's, testified that defendant was resisting the officers with what appeared to be "super human power."
Melero asked if everyone was okay, and Bjeldanes said, "no, I'm having a hard time breathing," and Ordaz that he had hurt his leg. Later that day Bjeldanes was placed on a gurney and taken to a hospital. He had a broken rib that required immediate medical attention, causing him to miss work up to the time of trial. Ordaz hit his shin, was in considerable pain, but declined medical treatment.
Melero hit defendant on the right thigh with his fist and applied pressure to his left thigh, which allowed the officers the opportunity to pull his arms out from under him, and place him in handcuffs. Even after being handcuffed, defendant continued to yell and struggle, and said he would not get up and walk out of the bank, and would not submit. The officers placed defendant in a full body restraint, which had different components to secure his ankles, legs, and torso; they also placed a hood over his head as a spit guard. And then carried him out of the bank, as he continued to struggle and shout. Melero testified that in subduing defendant, the officers "used the minimum amount of force, considerably less than what would be considered reasonable." No weapon was used in the attempt to subdue defendant. And he was not placed in a chokehold.
Berkeley Police Officer Stanley Libed had responded to the code 3 call, and assisted in carrying defendant out of the bank, placing him in a patrol car, and transporting him to a safety cell at the jail. Once the handcuffs and wrap were removed, defendant paced around the cell, cursing and yelling. Defendant did not look as if he was injured, and did not request medical attention at the time. However, a short time later, Libed was called back because defendant demanded medical attention. Paramedics were summoned, but defendant refused to answer their questions. Defendant demanded to be taken to the hospital, and he was placed on a gurney and taken by ambulance to Highland Hospital.
At the hospital defendant was belligerent, and he yelled and cursed. He said his legs were both numb and also in pain, and there was something wrong with his heart. Defendant was attended by a nurse, and an EKG device was placed on him, which tested normal. When advised of this, defendant cursed at the nurse and said she was not properly trained and incompetent. Defendant was also examined by a doctor who found no medical problems and cleared him for incarceration. Defendant cursed at the doctor and said he was incompetent, cursing so loudly that he had to be moved into a more isolated location because he was upsetting other patients and staff. When the examination was complete, the officers asked defendant to walk back to the patrol car; he refused and went limp. He was placed in a wheelchair but continued to make it difficult for the officers to get him to the car. And when they did, defendant stiffened his body and then grabbed the outside edge of the car door to keep the officers from getting him inside. One of the officers had to peel defendant's hands off while the other pushed and pulled him into the car.
Defense Evidence
The defense introduced an audio recording of the speakerphone call. Most of the conversation consisted of a back and forth between defendant and two bank employees. On one occasion, defendant interrupted the conversation to tell a police officer, "[h]old on a second. Officer...." The conversation between defendant and the bank employee continued for another six pages, at the conclusion of which the following is heard:
"JAMAL from WELLS FARGO: I don't . . . I can't actually say what a particular merchant, um, charges should be sir. Uh, that is between you and the merchant.
"[DEFENDANT]: You know . . . you know the . . .
"JAMAL from WELLS FARGO: You are basically saying that the merchant was supposed to charge you differently, sir? Uh, we need documentation helping us proof [sic] it.
"[DEFENDANT]: I'm gonna solve it . . . get your hands off me!
"VOICE: Can you do this?
"[DEFENDANT]: Take . . . Get your hands off me!
"POLICE: On the ground.
"[DEFENDANT]: Get your fucking hands off me!
"Inaudible. . . .
"[DEFENDANT]: Ah . . . He got me in a choke hold! He got me in a choke hold!
"POLICE: Relax . . .
"[DEFENDANT]: He got me in a choke hold!
"POLICE: Stop yelling . . .
"[DEFENDANT]: He got me . . . He got . . . damn . . . they trying to kill me! They are trying to kill me. They trying to kill me again! They don't like black people! There is no reason for this shit! I was on the phone! . . . (Inaudible) I was . . . (inaudible) I was (inaudible) I got (inaudible) . . . and all these police officers to . . . me . . . and I want everybody to know.
"Female voice inaudible phone rings . . . You want to . . .
"[DEFENDANT]: Why did you hit me? I am confused. I am confused. I'm confused.
"POLICE: Give me your left arm. Give me your left arm. Give me your left arm.
"[DEFENDANT]: I am confused. He hit me. He cuffed me. You got have a . . . for it . . . you got have a . . . for it . . . they trying to kill me. They are trying to kill me. Ahhh . . . . they are trying to kill me dog. They are trying to kill me.
"POLICE: Call an ambulance.
"[DEFENDANT]: They put me in cuffs. They did not tell me what I was arrested for. They . . . my rights. They apprehended me. They did not tell me what I was arrested for.
"POLICE: You have a right to . . .
"[DEFENDANT]: They are violating my civil rights. They are violating my civil rights. They do not have an arrest warrant. Inaudible (20:00). My . . . My . . . [¶] . . . They are . . . if you fucking . . . inaudible. He has got his foot on my shoulder. Abusive, oppressive . . . excessive use of force. It's illegal. I'm already confused. I have cuffs on me. There is nothing I can do. They are violating all my civil rights. I have been apprehended I am appalled.
"POLICE: Go. The show is over.
"[DEFENDANT]: I have . . . inaudible . . . what am I arrested for? Why do I have cuffs on me?
"POLICE: . . . Dollar warrant for your arrest?
"[DEFENDANT]: For what?
"POLICE: San Francisco . . . inaudible . . .
"[DEFENDANT]: Inaudible. Me now . . . I can't . . .
"Inaudible exchange
"[DEFENDANT]: In San Francisco, California where I . . . attended a court session on May the 6th. It was postponed to June the 6th. . . Inaudible . . . June the 6th is the day I was supposed to go to court . . . I spoke to the judge . . . I was in court on May the 6th . . . there is no arrest warrant. Oh Lord! You see this? The officer hit me. They put a bag over my head. I hope . . . I hope you are recording this on the microphone. I hope I got all your support . . . . I'm not allow [sic] it to happen. I'm not allow it to happen. Really. This is illegal. This is illegal. This is illegal. This is illegal. This is highly illegal. Total, complete violation of my civil rights. A complete violation of my civil rights. As a citizen of the United States of America, who is (inaudible) . . . my birthright is a (inaudible) individuality. Everything you are doing is illegal. The detainment. The aggression.
"Inaudible . . . "
Defendant testified on his own behalf, and said that on June 3 he was sitting at a desk at the bank when he turned around to see two police officers, one of whom informed him that he had been asked to leave the bank. Defendant did not understand what the officer was talking about because he was conducting bank business. Then, a short time later, while he was still on the phone, "a hand just comes over this shoulder and grabs me. And I'm like, I say 'sovereign,' that's my identity. It's nothing negative . . . . It just means that I believe that I have my own identity, that I am my own personal person, and that no one has rule over me, not no man . . . . But I didn't know who it is . . . And so as I stood up and started to turn, I seen the person was shorter than me . . . . I seen three, four, . . . and they was all past that neutral zone. They were in striking distance. And I had no idea who they were or what they was there for or what. It was a shock to me. [¶] . . . I moved his arm to protect—to protect myself . . . . [¶] . . . The moment he put his hands on me and grabbed me, everything else was out the window, and that's not something you do . . . . You alert people of your presence when you are coming . . . . [¶] . . . I'm making sure I got my guard to make sure whoever it is doesn't harm me and I get grabbed and thrown to the ground."
Defendant claimed he was held face down on the ground and "all types of people" were putting their knees in his back and punching him. Defendant did not know how many people were on top of him, but he could not move or "wiggle." And he did not push, punch, or kick anyone: "I didn't do anything to initiate contact or even apply some sort of force that would make somebody think that I did somebody [sic] to them. All I did was defend this. All I did was try to protect this area, just protect."
On cross-examination, defendant denied he struggled with the officers, and said he was already calm when the officers asked him to calm down. And even though the officers were wearing uniforms, defendant did not know they were police officers. However, he acknowledged that he knew there were two police officers at the bank. He also was aware of the criminal threat charges pending against him in San Francisco, as he had seen the "[a]bstract of [w]arrant" but it did not appear to be legitimate.
Asked about the speakerphone recording where he said, "[h]old on a second. Officer," defendant refused to believe the transcript was accurate.
Defendant admitted that when he does not understand some process he "[p]robably" would "refuse to cooperate." His principles included resistance when someone attempts to do something he does not understand. Defendant repeatedly said he was a "sovereign citizen," and when asked if "anyone who challenges your sovereignty, you are prepared to fight?" Defendant responded: "Of course."
The Proceedings Below
By information filed July 1, 2015, defendant was charged with two counts of forcible resistance of an executive officer, count one as to Sergeant Melero, count two as to Officer Marble; and two counts of resisting arrest, count three as to Officer Bjeldanes, count four as to Officer Ordaz.
Jury trial began on August 26, 2015 and on September 10 the jury convicted defendant of all counts as charged. Defendant moved for a new trial and for a reduction of the felony counts to misdemeanors. They were denied, and the court sentenced defendant to the two-year midterm on count one, a consecutive eight-month term on count two, and concurrent one-year jail terms on counts three and four. The court ordered the sentence be served locally pursuant to section 1170(h). Defendant filed a timely appeal.
DISCUSSION
As noted, defendant makes three arguments on appeal, the last of which is that there was insufficient evidence to support his convictions on any count. We discuss this argument first, as if defendant were to prevail on it, it would render the other two arguments moot. Defendant will not prevail.
Substantial Evidence Supports the Convictions
"In a prosecution for violation of Penal Code Section , the People have the burden of proving beyond a reasonable doubt that the peace officer was engaged in the performance of his duties. [¶] A peace officer is not engaged in the performance of his duties if he . . . uses unreasonable or excessive force in making or attempting to make the arrest. [¶] If you have a reasonable doubt that the peace officer was . . . using reasonable force in making or attempting to make the arrest and thus a reasonable doubt that the officer was engaged in the performance of his duties, you must find the defendant not guilty of any crime which includes an element that the peace officer was engaged in the performance of his duties." (CALJIC No. 9.29.)
We review the argument under settled principles, including that "we must determine whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime or special circumstance beyond a reasonable doubt. We review the entire record in the light most favorable to the judgment below to determine whether it discloses sufficient evidence—that is, evidence that is reasonable, credible, and of solid value—supporting the decision, and not whether the evidence proves guilt beyond a reasonable doubt. [Citation.] We neither reweigh the evidence nor reevaluate the credibility of witnesses. [Citation.] We presume in support of the judgment the existence of every fact the jury reasonably could deduce from the evidence. [Citation.] If the circumstances reasonably justify the findings made by the trier of fact, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding." (People v. Jennings (2010) 50 Cal.4th 616, 638-639; accord, People v. Nelson (2011) 51 Cal.4th 198, 210.)
Defendant's argument is based on the claimed unlawfulness of the officers' conduct in arresting him, specifically that the officers did not follow section 841, which requires that the arresting officer "inform the person to be arrested of the intention to arrest him, of the cause of the arrest, and the authority to make it." (Pen. Code, § 841.) In sum, defendant's argument is that "the uncontradicted evidence showed that the police initiated [defendant's] arrest with an unreasonable and excessive amount of force, without informing him beforehand of their intention or authority to arrest him. By doing so, they acted unlawfully and, in fact, provoked [defendant's] reactions which in the circumstances presented were natural, reasonable and not excessive."
Defendant concedes, as he must, that "before seeking to arrest [defendant], the officers knew that he had an outstanding warrant for his arrest. Knowledge of that fact gave the officers an unquestionable legal basis for their decision to arrest [defendant]. (Pen. Code, § 836.3 [arrest on warrant].)"
In claimed support of this argument, defendant says the "key evidence" is the audio recording of his long conversation with the bank employee. As defendant would have it: "That recording was sufficiently strong to pick up ambient voices and what it indisputably showed was that, without any precursor statement from the police, [defendant] is heard to say 'I'm going to solve it . . . . get your hands off me.' " Thus, defendant concludes, this was an "unexcused non-compliance with statute" that rendered the officers' conduct unlawful. Defendant goes on to argue, however circumstantially, from various things on—and not on—the audiotape to support his claim of what must have happened, essentially arguing that the transcript of the speakerphone conversation with the fraud agent shows, apparently conclusively, that there was no warning that he was under arrest or any mention of a warrant until after he was forced to the ground.
Defendant is wrong.
It is probably enough to note defendant's brief which, after the argument set forth above, says this: "Appellant acknowledges that not all witness testimony is consistent with the recording. For example, Dhindsa testified that, as all four officers approached [defendant], they said, 'Stand up. You are under arrest.' " That is substantial evidence supporting the conviction. So, too, is the testimony of Marble and Bjeldanes, both of whom testified that as they attempted to take defendant into custody, Marble advised defendant he was under arrest based on a warrant.
The fact that the officers' statements upon attempts to take defendant into custody were not picked up and recorded on the audiotape of the call does not establish as a matter of law that the statements were not made, especially when we look at the portions of the tape defendant put in evidence, portions that contained numerous "inaudible[s]." Put in substantial evidence terms, the testimony supports the convictions. (People v. Brown (2014) 59 Cal.4th 86, 106 [" 'unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction.' "].)
Defendant also acknowledges that "existing exigent circumstances will excuse non compliance with section 841," but argues that the "officers' implicit claim of exigency does not withstand scrutiny." Defendant focuses on the officers' position based on defendant's use of the word "sovereign," going on to argue that such "did not establish an exigency or a likelihood of violence." Officer Marble, of course, testified to the contrary. Indeed, defendant's own admission at trial was to the same effect, answering "[o]f course," when asked, "but anyone who challenges your sovereignty, you are prepared to fight?"
Defendant's final concession says it all—that he "does not dispute that the comparative assessment of who did and did not use reasonable force is a jury question." Indeed it is, a jury question that the jury answered adversely to defendant. That answer is supported by substantial evidence.
The Trial Court Erred in Not Instructing on Lesser Included Offenses
Resisting Arrest
In the conference to settle instructions, defendant's advisory attorney requested the court instruct that resisting arrest (§ 148(a)) was a lesser included offense of forcible resistance against an executive officer (§ 69) as charged in counts one and two. The court heard argument on the issue, and ruled it would not give the instruction, concluding that People v. Smith (2013) 57 Cal.4th 232 (Smith) "holds that if the district attorney is relying only on force or violence, rather than deterring some future action, that 148 is not a lesser included offense, even though the deterrence of a future action might be charged in the information" "[T]he case says, for 148 to be a lesser included, there must be substantial evidence that there was some action to deter future duties."
Defendant's first instruction-based argument is the refusal to instruct on the lesser included offense of resisting arrest was error, that the instruction was warranted based on both the accusatory pleading and the facts of the case. We agree.
" ' "It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case." [Citation.] That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.] The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given.' " (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman); accord, People v. Koontz (2002) 27 Cal.4th 1041, 1085.)
Breverman also holds that such instructions must be given even if they are inconsistent with the defense theory elected at trial. (Breverman, supra, 19 Cal.4th at p. 157.) And, finally, that such "instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury. [Citations.] 'Substantial evidence' in this context is ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[]" ' that the lesser offense, but not the greater, was committed." (Breverman, supra, at p. 162; see also People v. Wyatt (2012) 55 Cal.4th 694, 698.)
In Smith, supra, 57 Cal.4th 232—the case relied on by the trial court—the Supreme Court addressed the precise issue here: whether resisting a peace officer within the meaning of section 148 is a lesser included offense of forcible resistance of an executive officer under section 69. The court discussed the issue at length, which discussion included the following: "Section 148(a)(1) is not a lesser included offense of section 69 based on the statutory elements of each crime. . . . We have explained that section 69 '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.)
"The first way of violating section 69 'encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future.' (In re Manuel G., supra, 16 Cal.4th at p. 817, fn. omitted.) The actual use of force or violence is not required. . . .
"The second way of violating section 69 expressly requires that the defendant resist the officer 'by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense. (See In re Manuel G., supra, 16 Cal.4th at p. 815 ['a defendant cannot be convicted of an offense against a peace officer " 'engaged in . . . the performance of . . . [his or her] duties' " unless the officer was acting lawfully at the time the offense against the officer was committed'].)
"Section 148(a)(1) is similar to the second way of violating section 69 but is clearly different from the first way of violating section 69. Section 148(a)(1) says: 'Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician . . . 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.'
"A person who violates section 69 in the second way—by 'knowingly resist[ing], by the use of force or violence, such officer, in the performance of his duty'—also necessarily violates section 148(a)(1) by 'willfully resist[ing] . . . any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment.' (People v. Lacefield (2007) 157 Cal.App.4th 249, 257 . . . ['it appears to be impossible to violate the second type of offense in section 69 without also violating section 148(a)(1) . . . .'].) But it is possible to violate section 69 in the first way—by attempting, through threat or violence, to deter or prevent an executive officer from performing a duty—without also violating section 148(a)(1). . . . Accordingly, section 148(a)(1) is not a lesser included offense of section 69 based on the statutory elements of each offense. (People v. Belmares (2003) 106 Cal.App.4th 19, 24 ['By the statutory elements test, . . . resisting is not a lesser included offense of deterring since one can deter an officer's duty in the future (§ 69) without resisting the officer's discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1)).']; People v. Lopez (2005) 129 Cal.App.4th 1508, 1532 ['section 148 is not a lesser included offense of section 69, because section 69 can involve a present attempt to deter an officer's future duty'].) [¶] . . . [¶]
"Applying the rule to the statutory offenses at issue here, we summarize the trial court's instructional duty as follows: Where an accusatory pleading alleges both ways of violating section 69, the trial court should instruct the jury that if it finds beyond a reasonable doubt that a defendant committed either way of violating section 69, it should find the defendant guilty of that crime. If not, the jury may return a verdict on the lesser offense of section 148(a)(1) so long as there is substantial evidence to conclude that the defendant violated section 148(a)(1) without also violating section 69." (Smith, supra, 57 Cal.4th at pp. 240-245.)
In Smith, the amended information charged the defendant "with both ways of violating section 69," including in the second "by 'knowingly resist[ing], by the use of force or violence, such officer, in the performance of his duty.' " (Smith, supra, 57 Cal.4th at p. 242.) Smith held that in this situation, under the statutory pleading test, "section 148(a)(1) [was] necessarily included within this second way of violating section 69." (Smith, at p. 242.)
Defendant contends the present case "is on all fours. Count I of the information charged [defendant] with seeking to deter Sergeant Melero from performing a legal duty 'by means of threats and violence' and of resisting said officer 'by the use of force and violence.' Count II was charged in the same language with respect to Officer Marble." Both counts were read verbatim to the jury at the start of trial, and defendant contends that under Smith the trial court had a duty to instruct on the lesser included offence of resisting arrest without "force or violence," and that the trial court thus "misread Smith."
The actual charging language was as follows: "ELLIOTT DARTARI CHANCE is further accused by the District Attorney of the County of Alameda, by the second count of this Information, of a Felony, to wit: RESISTING EXECUTIVE OFFICER, a violation of section 69 of the PENAL CODE of California, in that on or about June 3, 2015, . . . said defendant did unlawfully attempt by means of threats and violence to deter and prevent [NAMED OFFICER], who was then and there an executive officer, 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 Attorney General agrees, going on to argue that "its ruling was nonetheless correct because there was no substantial evidence that [defendant] committed the lesser offense of resisting the police without the use of force or violence. (See People v. Smith, supra, 57 Cal.4th at p. 245.) . . . . That is the case here." . . . . Defendant was either guilty or not guilty of resisting the executive officers by the use of force or violence in violation of section 69." Or as the Attorney General puts it at another point, there "was no evidence that defendant committed only the lesser offense of resisting the officers without the use of force or violence in violation of section 148(a)(1). (See People v. Carrasco (2008) 163 Cal.App.4th 978, 985.)" In the Attorney General's own words, defendant "was either guilty or not guilty of resisting the officers by force or violence." We disagree. And Smith, on which the Attorney General heavily relies, is distinguishable.
Smith held that the refusal to give the lesser included instruction was not harmful error because " ' "there [was] no evidence that the offense was less than that charged." ' " (Smith, supra, 57 Cal.4th at p. 245.) There, defendant Smith, a prisoner, had been charged with two separate incidents of forcible resistance. In the first, he refused to comply with an order to face a wall; instead, as the prison guard attempted to cuff his hands, defendant spun around and "punched Deputy Baker twice in the face." (Smith, supra, at pp. 236-237.) In the second, Smith again refused to comply with a guard's order, threatened to get violent, and then "threw a bowl that contained a mixture of urine and feces that struck the deputy on his arm." (Smith, supra, at pp. 237-238.) That, the court held, was per se force and violence. Those are not the facts here.
People v. Carrasco, supra, 163 Cal.App.4th 978, the other case on which the Attorney General relies, is likewise unavailing. The court there held there was no duty to instruct on section 148 because, without contrary testimony, " 'yelling, kicking, [and] cussing' " while on the ground necessarily constituted a violation of section 69.
Here, by contrast, there was contrary evidence from which a jury could conclude that defendant did not use force and violence against the officers. Resist the officers? For sure. Use force and violence against them? Not necessarily.
For example, Officer Bjeldanes admitted that defendant had not punched anyone, but had resisted. Thus, this colloquy:
"Q. And how did I acknowledge you?
"A. By fighting us.
"Q. So I punched you?
"A. No, you resisted.
"Q. How did I—what does 'resist' mean? I resisted what?
"A. We tried to take you into custody and you resisted. You didn't let us put your hands behind your back." Defendant says Bjeldanes's testimony described "a paradigmatic case of simple resisting." (§ 148.) Whatever, it was substantial evidence on which a jury could have found that defendant was not guilty of resistance by means of force and violence.
Nor did defendant push through the officers or struggle with them in the sense of initiating a violent confrontation against them. As described, defendant struggled to pull back his arms and to walk away from officers, two of whom were at his sides, the other two behind the others. What Bjeldanes described could be considered noncooperation and evasion, but not necessarily "force or violence" directed at the officers. Bjeldanes never characterized it as such, indeed stating that they took defendant to the ground, "we're trying to get him to stop resisting, and he won't." Asked: "What do you mean by 'resisting'? What is he doing?" Bjeldanes replied: "He's flailing around; trying to wriggle out. All of us are on top of him. He's got 800 pounds of guys on him, and he's trying to get—he's trying to get away." Wriggling out from 800 pounds may be a struggle, but it is not necessarily force and violence.
Battery
Defendant's other instruction-based claim is that the court failed to instruct on the lesser included offense of simple battery. Again, we agree.
Defendant's reply brief notes that his opening brief erroneously entitled this argument "lesser included offense of resisting arrest."
Defendant relies primarily on People v. Brown (2016) 245 Cal.App.4th 140 (Brown), which, like here, was a case that charged defendant with forcibly resisting an executive officer. Brown, a 67-year-old African American man was riding his bicycle on the sidewalk while wearing headphones, in violation of state and municipal law. A police officer yelled at him to stop but Brown sped up. Officers gave chase, cornered Brown in a parking lot, and arrested him. An "altercation" ensued in which both Brown and officers sustained fractures and bruises. According to the police, one of their number tackled Brown, throwing him off his bicycle and taking him to the ground, and that Brown " 'aggressively' " " 'flipp[ed] back over' " into a " 'sitting position,' " and became combative, " 'swinging his hands' " with a " 'clenched fist.' " Then, to get control of Brown and protect themselves, the two officers began to deliver " 'compliance strikes' " in order to subdue him. (Brown, supra, at pp. 146-147.) Brown's version was that he had fallen off his bicycle after hitting a curb and that while he was on the ground the officers, without warning or command, pounced on him with great force and began to pummel him. (Id. at p. 147.) Brown denied swinging at either officer. (Ibid.)
The Attorney General argued that a lesser offense instruction was not required because the jury had found by its verdict that Brown was guilty of the greater offense. The Court of Appeal rejected such circular reasoning, holding that "by failing to instruct the jury on the lesser included offense of simple assault, the court never gave the jury the option of finding that both versions of the facts were partly true." (Brown, supra, 245 Cal.App.4th at p. 151.)
The court also rejected the Attorney General's argument that the jury was faced with an all or nothing choice "of either (1) crediting the prosecution evidence, which would establish that Brown forcibly resisted the officers and that the officers used reasonable force or (2) crediting Brown's story, which would have established that the officers used excessive force and Brown was 'completely unaggressive and defenseless.' " (Brown, supra, 245 Cal.App.4th at p. 154.) Quoting People v. Barton (1995) 12 Cal.4th 186, 196, the court pointed out that " '[t]ruth may lie neither with the defendant's protestations of innocence nor with the prosecution's assertion that the defendant is guilty of the offense charged, but at a point between these two extremes: the evidence may show that the defendant is guilty of some intermediate offense included within, but lesser than, the crime charged.' " (Brown, supra, at p. 154.) Thus the court held, "the jury could also have concluded that Brown used excessive force or violence to resist arrest only in response to the officers' unreasonable force. Under that scenario, Brown could have been found not guilty of the section 69 violation, but still guilty of the lesser crime of assault." (Brown, at p. 154.)
Here, as stated in his closing argument, defendant's position was that his arrest was unlawful because (1) he was not told about the reason and authority for his arrest before being physically apprehended and (2) the officers used excessive force in the manner in which they seized him. He also argued that any reaction on his part was natural and in self-defense.
In defendant's words: "all I was doing was talking on the phone, and ain't nobody asked me to leave. I'm minding my own business. I'm in my own skin. I ain't bothering nobody. I ain't pushed nobody. I ain't spit on nobody. I ain't yelled at nobody. I ain't cussed nobody out. You heard that on the audio." He also argued: "Who doesn't know that when you walk up behind somebody and grab them they are not going to react in a particular manner? What sane individual doesn't know that? You do it all the time." --------
The Attorney General's argument is similar to that rejected in Brown, his entire response in these two short paragraphs:
"Unlike the situation in Brown, in this case the evidence either established appellant was guilty of forcefully resisting the officers or he reasonably responded to an unlawful arrest in which the police used excessive force. As stated, the prosecution evidence showed that when the officers attempted to take appellant into custody, he forcefully resisted them and attempted to push his way through the officers with the apparent intent to escape. Under appellant's version of the events, he was grabbed and thrown to the ground without being informed that he was under arrest. Appellant testified that he made no attempt to hit or kick the officers and, indeed, with four officers on top of him he could not resist or even 'wiggle.' Also, [defendant] argues elsewhere 'the fact is that in this case there was no such unreasonable, over-reaction on appellant's part.'
"The court was not obligated to instruct on simple assault as a lesser included offense of counts 1 and 2 because there was no substantial evidence to establish [defendant] was guilty of the lesser offenses but not the greater." In defendant's words: "but you don't let me know that you are coming to arrest me and you use the action—the subsequent action that you provoked into a response as the reason to charge me and bring me to trial. It's the same as somebody throwing something in your car. It's provoked. [¶] . . . [¶] [I]f you violate me by putting your hands on me, I got the right to punch you in the face. I got that right. And when you aggressively put your hands on me and you try to take control of my life for anything, other than what's lawful. And when I say 'lawful,' it has to be that's lawful, something that has transpired, something that has happened, not just because you feel you have that right. You have to convey that right by stating who you are, what you are there for, and why you are there, and then you have to allow me to ask you a question. For what? I didn't get none of that."
We reject the Attorney General's conclusory argument. And we conclude that here, too, defendant was entitled to an instruction that covered the full range of possible verdicts based on alternative interpretations of the evidence—and the jury's "own independent conclusions of [defendant's] level of culpability." (Brown, supra, 245 Cal.App.4th at p. 155.)
The court's failure to provide the jury with those options was error, and the critical question is whether the errors were prejudicial.
Prejudice
The erroneous failure to instruct the jury on a lesser included offense is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837. (People v. Banks (2014) 59 Cal.4th 1113, 1161.) Evidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given. (Ibid.) However, a " 'probability' " in this context "does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility" that the outcome was affected. (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 918; People v. Watson, supra, at p. 837; People v. Soojian (2010) 190 Cal.App.4th 491, 519.)
We conclude that the evidence here demonstrates a reasonable chance that a properly instructed jury would have returned a lesser offense verdict on counts one and two—especially when one observes the type of conduct that has been involved in section 148 cases. In In re Muhammed C. (2002) 95 Cal.App.4th 1325, the Court of Appeal affirmed a wardship finding for violation of section 148(a), in the course of which it observed as follows: "Section 148 is most often applied to the physical acts of a defendant. (Cf. In re Andre P. (1991) 226 Cal.App.3d 1164, 1175.) For example, physical resistance, hiding, or running away from a police officer have been found to violate section 148. (People v. Allen (1980) 109 Cal.App.3d 981, 986-987; see In re Gregory S. (1980) 112 Cal.App.3d 764.)" (In re Muhammed C., at pp. 1329-1330.)
In other words, section 148 covers a variety of physical acts, some of which involve the use of physical force against officers. As the court distilled it in People v. Quiroga (1993) 16 Cal.App.4th 961, 967, citing numerous cases: "In most cases, section 148 has been applied to physical acts, such as . . . struggling physically with an officer making an arrest [citations]." (Italics added.) Illustrative cases include People v. White (1980) 101 Cal.App.3d 161, 165, which involved a defendant who "continued to grab and push" the officer and upon being placed under arrest, "began to swing her arms, kick her feet and swear at them." Other section 148 convictions have included physical struggling. (In re Frederick B. (1987) 192 Cal.App.3d 79, 83, 90 [walking away and being "wrestled" to the ground]; In re Gregory S., supra, 112 Cal.App.3d at p. 771 [defendant "struggled and attempted to pull away from" the officer's grabbing defendant's arm].) In short, these cases show that section 148, subdivision (a) applies to physical acts of aggressive resistance.
While the Attorney General does not focus on it, defendant acknowledges there is one piece of evidence that might have supported "force and violence"—Marble's testimony that as he and Bjeldanes attempted to get defendant's hands out from under his body, "defendant started kicking his feet at officers or mainly Sergeant Melero, who was there." But even assuming that there was credible evidence that defendant was kicking, such a fact would not render harmless the failure to instruct on nonviolent resisting. That is, where witnesses testify to different versions of the events, the failure to instruct on the lesser included offense is prejudicial, because the jury "might have believed part of what the officers said and part of what the defense witnesses said. They therefore might have found that [defendant] acted unlawfully, by arguing with [the officer] and refusing to disburse, but he did not use force unlawfully because his use of force was a response to [the officer's] unlawful use of force." (People v. Lacefield, supra, 157 Cal.App.4th at p. 261.)
As demonstrated by the above, defendant's conduct here included attempts to break free from the officers, struggling with them with however much his strength, attempting to "wriggle out" from the 800 pounds on top of him, in the course of which he flailed with his feet while on the ground. All this was described by several of the officers at trial as "resisting," which is, as quoted, one of the classic ways section 148 is violated. (People v. Quiroga, supra, 16 Cal.App.4th at p. 961.)
But even the "kicking" was beneath the level of physical acts described in some of the cases noted above, such as that in People v. White, supra, which charged a violation of section 148. And this, as defendant sums it up, "points to the true, underlying issue in the case: who gets to determine the full range of possible verdicts? In . . . White, the prosecutor evidently decided that the conduct at issue did not rise to the level of such 'force or violence' as would warrant conviction under section 69. Thus, Smith and Brown stand for the rule that just because a prosecutor does so decide, the jury should not be foreclosed from a lesser range of verdicts available on the evidence." Or, stated in another way, it was for the jury to decide whether to affix the label "force or violence" on defendant's conduct. This, they were not allowed to do.
DISPOSITION
The judgment of conviction on counts one and two is reversed, that on counts three and four is affirmed. The matter is remanded for further proceedings consistent with the views expressed herein.
/s/_________
Richman, Acting P.J. We concur: /s/_________
Stewart, J. /s/_________
Miller, J.