Opinion
A140841
01-31-2018
THE PEOPLE, Plaintiff and Respondent, v. KALANN R. JOHNSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City & County Super. Ct. No. 216045)
INTRODUCTION
Kalann R. Johnson appeals his conviction following jury trial on charges related to two separate incidents occurring a week apart in April 2010. In the first, on April 6, police were attempting to detain the 19-year-old Johnson when he fled and was captured and forcibly put on the ground, but continued to physically resist being put into a patrol car, a patrol wagon, and then an ambulance. In the second incident on April 13, Johnson, using a semiautomatic pistol, shot at two security officers working at a public housing complex in the Bayview Hunter's Point District of San Francisco.
On October 2, 2013, a jury found Johnson not guilty of resisting a peace officer, causing serious bodily injury (Pen. Code, § 148.10, subd. (a), (count 1). It convicted him of three counts of misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) (counts 2, 3, and 5); misdemeanor assault on a peace officer (§ 241) as a lesser included offense of misdemeanor battery on a peace officer (count 4); two counts of assault with a firearm (§ 245, subd. (b)) (counts 7 and 9); attempted voluntary manslaughter (§§ 192/664) as lesser included offenses of two counts of attempted murder (counts 6 and 8); negligent discharge of a firearm at an occupied motor vehicle (§ 246) (count 10); and misdemeanor shooting a firearm in a grossly negligent manner (§ 246.3) as a lesser included offense of negligent discharge of a firearm at an inhabited residence (count 11). The jury also found true as to the charges of assault with a firearm (counts 7 and 9) that he personally used a firearm (§ 12022.5, subd. (a)). The jury found not true gang enhancements alleged. Johnson was sentenced to a term of 22 years and 4 months in state prison.
All statutory references are to the Penal Code, unless otherwise indicated.
Johnson contends reversal is required, contending: (1) The court allowed into evidence his statements made during interrogation in which his constitutional rights were violated and the prosecutor, during trial, commented upon his assertion of the right to remain silent; (2) With respect to charges relating to the first incident in which Johnson was convicted of resisting a peace officer and assault on a peace officer, the evidence was insufficient to demonstrate that the police were engaged in the lawful course of their duties at the time of his arrest; (3) The trial court erred in failing to sua sponte instruct the jury in terms of a portion of CALCRIM No. 2656 and CALCRIM No. 2670, where the lawful performance of duty by the police was an issue in the case; (4) Allowing DNA testimony by the supervisor of the San Francisco crime lab in place of the analyst who conducted the test violated Johnson's right to confront and cross examine witnesses. (U.S. Const., 6th Amend.; Crawford v. Washington (2004) 541 U.S. 36.) We shall conclude the court erred in failing to fully instruct the jury as to the misdemeanor counts 2 through 5 on the element of lawful performance of duty. Therefore, we shall reverse and remand as to those counts only. In all other respects we shall affirm.
BACKGROUND
I.
April 6 , 2010—Resisting Arrest and Assault (Counts 2 Through 5)
Around 10:40 a.m. on April 6, 2010, San Francisco Police Department (SFPD) police officers received a dispatch reporting a "hot prowl in progress" at 254 Argonaut. A "hot prowl" occurs when a suspect was found inside a private property without permission. In this case there was a fenced-in rear patio area and no one should have been there but the people inside the house. The dispatch reported a 911 call that "a black male, 14 to 17 years old, [was] peering through the rear-glass window of the patio."
The prosecutor did not introduce evidence of the 911 call and did not call the reporting party to testify.
Officer Carlos Recinos, who was in full uniform on motorcycle patrol in the area, proceeded to the address of the reported incident. Within two minutes of hearing the dispatch, as he neared the address, Recinos saw a reflection in his rearview mirror of Johnson, who matched the description of the suspect in the dispatch, hopping over a backyard fence. Johnson ran south and turned left onto Kelloch. Recinos made a U-turn and followed Johnson to 180 Kelloch. The officer drove his motorcycle onto the sidewalk in front of Johnson, cutting him off. Recinos told Johnson he needed to talk with him and that he was detaining Johnson for an investigation. Johnson said his grandmother lived at 180 Kelloch. As Recinos was getting off his motorcycle, Johnson took off running west on Velasco. Recinos pursued Johnson on his motorcycle after another motorcycle patrol officer joined in the pursuit.
After catching up with Johnson again, Recinos ordered him to stop and said that Johnson was under arrest for delaying a police investigation. Johnson immediately started yelling and refused to place his hands behind his back as Recinos ordered. He began to flail his arms and refused to get on the ground after several orders to do so. Recinos radioed for assistance and several officers responded in a patrol vehicle. They told Johnson several times that he was under arrest. Johnson was taken to the ground by Recinos and patrol officer Johnathan Ng, who had arrived at the scene in a patrol car. Johnson continued to yell and to flail his arms.
Johnson tucked his arms under his body, into his waistband, where weapons are commonly concealed. Officers finally were able to place handcuffs on him, but he continued to struggle and resist. During the struggle to handcuff Johnson, the handcuff pinched the inside of Ng's wrist or palm. Ng did not require medical assistance. Several officers were trying to place Johnson into a patrol car, but he refused, tensing up his body, locking his feet under the doorjamb, kicking and moving around to break loose. Johnson tried to kick the door open and then placed his foot in the doorjamb so the door could not be closed. Officers called for a patrol wagon to transport him. Johnson refused to stand or get into the wagon. Four officers picked him up and carried him to the wagon. Although they succeeded in getting Johnson into the vehicle, he continued kicking and moving his legs and body. The officers tried unsuccessfully to calm him. He was combative the entire time, yelling, screaming, and trying to break out of the wagon. The officers succeeded in putting a "hobble" on his ankle and legs to try to control the violent kicking. Police Sergeant Larry McDevitt climbed into the back of the wagon with another officer and tried to prevent Johnson from getting out of the patrol wagon. He attempted to calm Johnson, to no avail. McDevitt had to pull Johnson back into the wagon five to ten times. At some point, McDevitt felt something in his back " 'give way,' " and he experienced a pain go up his spine. McDevitt fully knew that something was wrong when he stepped out of the patrol wagon and stood straight up. As a result of his back injury, McDevitt immediately sought medical treatment. He was unable to return to work for about two months. He received physical therapy and at the time of trial, still continued to experience back pain.
Eventually, the police called an ambulance. Johnson was strapped to a gurney and placed in soft leg restraints. The paramedics took him to San Francisco General Hospital. Johnson began to struggle at the hospital and nurses ran out of the room and called for help. Sheriff deputies stationed at the hospital assisted the police officers in restraining Johnson. He had a scratch on his neck and some redness around his face.
SFPD Officer Anthony Larocca, interviewed the resident who had called the police. She told the police she screamed at the young man she saw looking into her window, who then took off running and climbed over a back fence. She then called the police. Interviewed later, the resident said she would not be able to identify the suspect if she saw him again and she was not sure if the suspect was a Black or White male.
At trial, Johnson's version of the encounter was different than the prosecution's. He had been walking around the neighborhood as he often did. He was jogging back to his grandmother's house and knocking on her door when he heard a voice saying, "Hey, what are you doing?" He turned around and a patrolman on a dirt bike had his gun on Johnson. Johnson was afraid and so he ran. After being stopped, he stood still and placed both hands in the air. He was then tackled by "three or four different guys." One officer had his hands in Johnson's hair and was yanking it. Another was trying to twist Johnson's arm behind his back, another was on his leg, and he believed there was someone trying to put him into a choke hold, so he fought back. He was screaming and hollering because he was getting jumped on. Johnson testified that he sustained multiple scratches on his neck, wrists and hands. He had a few bruises and some of his dreadlocks had been pulled out.
II.
April 13 , 2010—Attempted Murder and Related Charges (Counts 6 Through 11)
On April 13, 2010, Thadius Vinson and his supervisor, Captain Joseph Alfafara were employed by Andrews International Security Company, a private security firm, working at a public housing complex in the Bayview Hunter's Point District of San Francisco. Both were wearing black uniforms with gold patches on their shoulders and chests with their names and the name of the company. The officers carried Glock .40-caliber semiautomatic handguns. Around 10:00 a.m. that morning, Vinson and Alfafara had just returned to the security office when dispatch notified them there was a group of unidentified youths "hanging around" that dispatch did not recognize. Alfafara observed a "[g]roup of juveniles" by way of security cameras for about fifteen minutes. He and Vinson then drove their marked security guard car to the location to investigate. No loitering signs were posted on the property. They pulled up next to a group of African-American youths, including Johnson.
Vinson and Alfafara told the youths there was no loitering on the property and they would have to leave the premises. The youths responded with name-calling and sarcastic remarks, referring to the security officers as "fake cops" and "rent-a-cops." They began to leave slowly and continued their name-calling and jokes. As the security officers were about to drive away, Johnson, who was wearing blue jeans and a white San Francisco Giants letterman jacket, called out "Hey" to them and they stopped. Johnson said in a normal tone of voice that, "Them is young niggas. I'm a real nigga," that he was "a grown man," and that he was a "real nigga" and "It's real niggas here." Vinson replied in a normal tone, "Well, it's real ones in this car, too, but y'all can't hang out here.
The security officers drove up the street to make a U-turn at the end of the cul-de-sac and followed the group to make sure they left. Alfafara parked, and the officers stood against their vehicle talking and watching the youths. Johnson separated from the group and walked toward the officers, saying, "Hey, I told y'all, it's real niggas here. Y'all ain't got to get out of the car." Vinson did not take this comment as a challenge. He testified, "I don't take things too aggressively because of the environment I work at because . . . people try to test you every day working in the security industry, so . . . I just took it as a regular day." Johnson knew Vinson was from the same area and that Vinson was a "rapper." He had seen Vinson's videos, which contained a lot of "gang-banging" and a lot of talking about killing. Johnson testified he associated Vinson with a violent street gang, the Down Below Gangstas.
Additional conversation occurred with Alfafara stating, "Okay. This is Hunter's Point." Alfafara commented to Johnson about being in Hunters Point, because Johnson continued to identify with "Towerside" and Johnson was in an area controlled by a rival gang. Johnson stated he was from "Sunnydale Towerside." Vinson told Johnson, "[Y]ou can't be from Sunnydale Towerside," as the two were rival gangs who fought each other. Johnson responded with a grin, "Oh, you know a little about the hood?" He reached out to Vinson and the two bumped fists or shook hands. Vinson understood the gesture as a sign of "respect" and that things were "cool" between them. Johnson wore a black glove on one hand. He turned and jogged off to catch up with the youths at Commer Court and La Salle Avenue.
Vinson and Alfafara returned to their vehicle and were standing outside when a resident approached and told them either that "one" member of the group had a gun or the "brother" they were talking to had a gun and that the resident had "seen them put it in their backpack." The officers decided to investigate and returned to their car where Vinson radioed dispatch to report the matter and request that SFPD be notified. The pair drove toward Newcomb and Keith, where they saw the youths, but did not immediately see Johnson. Vinson saw someone in a black hoodie running up a set of stairs. When the person came around the wall that blocks the stairway, Vinson recognized the person as Johnson. He was no longer wearing the white Giants jacket. Vinson was suspicious because Johnson had changed into the hoodie and his arms were inside the body of the hoodie and the sleeves were hanging loose. Johnson approached the patrol car on the driver's side and Alfafara told him to take his hands out of the hoodie. Johnson did not comply, but continued toward the officers. He got within about 35 feet and Alfafara repeated the command, but Johnson continued to advance.
The officers both reached for their firearms. They testified that neither had drawn their guns from their holsters when Johnson lifted up the hoodie with his left hand, pulled out his gun with his right hand, and began to shoot at the officers. He fired "a lot" of shots, which were hitting the car. Alfafara and Vinson crouched down in the vehicle and Alfafara managed to pull out his gun, reach over his head and fire a couple of shots, at which time Johnson stopped shooting.
After the shooting stopped, the patrol car moved down Newcomb toward Keith. As the car approached the top of the hill at Keith, Johnson started shooting again. This time Alfafara did not return fire. Johnson was about half way down the hill. The officers last saw Johnson run down Keith Street and turn left onto Oakdale Avenue.
At trial, Vinson identified a surveillance video taken from the area of Garlington and Commer Court, which showed Johnson in the white Giants jacket standing with a group of youths. The video depicted the encounter between the officers and Johnson and showed Johnson shaking hands or fist bumping with Vinson and then someone wearing a black hoodie with sleeves dangling, running toward the staircase leading to the corner of Newcomb and Keith, a short time later.
A Smith & Wesson 9-millimeter semi-automatic handgun was found a few blocks from the scene, at a location abutting an elementary school, in which direction Johnson had run after the shooting stopped. That weapon had fired several rounds of its 15-round capacity. Seven casings from that gun were found at the scene. Five rounds of live cartridges were found in the magazine and a spent casing in the firing chamber. That spent casing indicated that the gun jammed after that round was fired. One round was recovered from inside the ceiling of a residence in the area. Another home in the area had also been hit by a bullet. The security officers' patrol car had bullet holes in the doors and rear window. Johnson admitted using his Smith & Wesson 9-millimeter gun. Alfafara's Glock was shown to have fired five shots. No shots had been fired from Vinson's Glock.
Police recovered a black glove located in the backyard of 1348 Palou, abutting the elementary school. The glove was tested by the SFPD's crime laboratory for the presence of DNA. It was found to have a mixture of at least two individuals' DNA, with the major profile being consistent with Johnson's DNA. The glove also evidenced the presence of gunshot residue, which was also detected on Johnson's left hand, but not his right hand. One of two footprints found in the yard at 1348 Palou matched Johnson's shoe.
Johnson was arrested without incident around 6:00 p.m. that evening, when he was observed leaving his mother's residence and driving off. Executing a search warrant for Johnson's mother's home, officers found a white San Francisco Giants jacket in Johnson's bedroom and indicia for Johnson. Alfafara identified the jacket as the one worn by Johnson before the shooting.
During his interrogation by police officers, Johnson repeatedly denied any knowledge of the incident.
At trial, the prosecutor played for the jury a DVD of Johnson's statement to the police made the evening of his arrest. The redacted DVD was played for the jury.
Johnson testified in his own defense. He admitted shooting at the security officers. He told the jury that he was not a gang member and did not have any gang tattoos. On April 13, 2010, Johnson was wearing a San Francisco Giants letterman jacket, blue jeans, a beanie, and a glove. He later gave that jacket to a girl named Constance because she looked cold. He also had a gun, a "9." He explained he needed the gun because he felt unsafe, as he had to travel through at least two neighborhoods to get to school, he had been attacked many times before, and he had friends and relatives shot at and killed.
On April 13, Johnson decided not to go to school, but instead met up with some friends and they were just hanging out near a housing project on Garlington. The group was approached by Vinson and Alfafara. Johnson knew Vinson from the neighborhood, knew he was a rapper, and had viewed some of Vinson's videos. The videos reflected guns, gang culture and violence. Johnson also associated Vinson with a gang, the Down Below Gangstas. When the security officers approached, one of them told the group, "You lil niggas got to move. If you not going to school, if y'all ain't got school or somewhere to go, you lil niggas gotta move." Johnson replied, "Them is young niggas. I'm a real nigga, though. Feel me? It's cool. We can get on." Later, Vinson asked Johnson where he was from. Johnson replied he was from Sunnydale, "the bricks." Vinson told Johnson that he could not be from the "Towers," because that would mean that Vinson and he were "beefing." Alfafara told Johnson that he, Alfafara, was an "OG from Hunters Point." Johnson took this statement to imply that claiming Sunnydale could get Johnson hurt at Hunter's Point. Johnson became very afraid that he could be hurt. His fear was further heightened because both Vinson and Alfafara had guns.
Johnson and the others left the immediate area. Shortly thereafter, Vinson and Alfafara "[rode] back up" on the group, coming to within twenty or twenty-five feet of Johnson. They were saying something to him, but he could not make out the words. Johnson approached the car to try to make out what they were saying. As he approached the car, he could see Alfafara lean back in the seat and Vinson reaching for his gun. Alfafara then came up and shot at Johnson. Johnson was afraid for his life and returned fire. Johnson also testified that Vinson was hanging out the window and shooting at him during their second encounter. However, ballistics tests showed Vinson's gun had not been fired.
Johnson stated he was untruthful to the police after his arrest because he did not trust them. On cross-examination, Johnson admitted he was untruthful during the post-arrest interview when he denied being present during the shooting. He acknowledged he did not mention that he was acting in self-defense or felt afraid for his life.
DISCUSSION
I.
Admission of Johnson's Statement to Police
Johnson contends the court committed prejudicial error when it allowed the prosecution to admit into evidence portions of his statements to police, made after he had reasserted his right to remain silent. He further contends the prosecutor violated the rule of Doyle v. Ohio (1976) 426 U.S. 610, that a defendant may not be impeached by his exercise of his right to remain silent. These contentions are without merit.
A. The Interrogation
After his arrest, Johnson was interviewed by SFPD Sergeant Daniel Manning. Manning initially read Johnson his Miranda rights, pausing after reading each right to ask Johnson whether he understood. After each, Johnson responded that he understood. He was not asked and did not state that he waived these rights. Manning and SFPD Officer Joshua Kumli began questioning Johnson, who responded freely.
Miranda v. Arizona (1966) 384 U.S. 436.
Throughout the interview, Johnson denied being at the scene of the shooting or knowing anything about it. The interrogation (with italics added) proceeded in relevant part as follows:
"SM: Here's what happened man. Some people are accusing you of something.
"SM" refers to Sergeant Manning. "Q" refers to Kumli. "A" refers to Johnson.
"A: Uh-huh
"SM: It's a story that we're still trying to develop and figure out.
"A: Alright.
"SM: We know you left your house. Before you left your house, whatever time it was—afternoon, we know you were at this morning. We've spoken to approximately twelve people today that put you at different places at different times today. What we want and I'm going to lay it all out here, we just want you to tell us the truth man because you're a nineteen year old kid and some people are alleging that you did something pretty bad.
"A: Can you please tell me? I have yet to hear what it is.
"SM: I will tell you but we want to give you the opportunity to
"A: There's all kinds of things in the streets. People say all kinds of things.
"SM: I totally understand. The thing is that, like we keep telling you, there's two sides to every story and we have one big side to this story and we're missing your side and there's reasons that things happen.
"A: I have no idea what the story is to (inaudible).
"SM: Alright. Were you, how about just asking some questions and you can tell me if I'm going in the right direction. Were you in the area of Commer Court and Garlington today?
"A: No sir.
"SM: Not at all?
"A: Uh-uh.
"SM: Were you on the 54 bus with about seven other kids today? No?
"A: Uh-uh.
"SM: Did you, I don't know how to say this to you man, we've already talked to Constance. . . . We've talked to, I forget how to pronounce his name, (Oloh). We talked to. We've talked to several people today that said that you were hanging out with them. [Y]ou went up to Commer Court and Garlington and you hung out there with them for a while before getting into an argument with the armed security guards known as the Beijings in the white Dodge today. You're telling us that none of that occurred?
"A: I have no idea. I have no—I couldn't begin to tell you even the smallest fact.
[¶] . . . [¶]
"[Q]: . . . [O]n Garlington, they have video surveillance cameras up in that area, so those cameras caught you up there today. . . .
"A: The cameras caught me up there? How could the cameras catch me somewhere if I was at home?
[¶] . . . [¶]
"A: Hold on, let me ask you this, if this entire meeting is about this situation that you just brought up to me and I've made it very clear to you that I have no idea whatsoever to give you even the smallest bit of information on it then I feel sirs that with all due respect, we have nothing more to talk about because, like I told you sirs I have no information.
"SM: Alright.
"A: I wish I could help you. I understand you're very just, you're both very noble. I admire you guys—I've seen your discipline. I admire when you guys got out of the car, it was great, the intensity, I felt it all you know.
[¶] . . . [¶]
"SM: We have you on video tape running through the school. We have you jumping over the fence. We have you throwing the gun. We have you doing all those things. We found your jacket that you wore. The San Francisco white Giant's jacket in your mother's house. We have all this stuff. We have Constance holding your back pack. We have Constance giving you, her wearing your jacket. We have all this [sic] statements from everybody.
"A: I never worn no Constance jacket. I am acquainted with Constance through her mother and her step father who know my stepfather.
"SM: Somebody said something to you today to make you snap. It had to be, cause from what he's told me, he's told me that this is not what he's seen from you. Somebody said something to you, I don't know if it was the security guards, whatever they said to you made you snap today and I don't know if you lost it for a minute.
"A: I am very sane sir.
[¶] . . . [¶]
"SM: Do you use drugs?
"A: No sir. I believe that by me being able to show you guys that someone such as me, an individual such as myself (inaudible). To you gentlemen is significant traumatic events in his life clearly reflects that I'm a kind person, a compassionate person and very sane so if you guys do have anything against me man do what you got to do. I don't have anything else to say sir.
"SM: You got to realize this isn't a personal thing between us and you. We didn't wake up this morning and say, 'Let's go fuck with Mr. Johnson, right?' The thing is something led us to this moment, where we're all sitting here today, right? And that is the attempted murder of two armed security guards who were just patrolling the neighborhood like they were supposed to and came into contact with you and some kind of an argument ensued and they told us that they asked you to leave. You wouldn't leave. Some words were exchanged about the Sunnydale and deep down inside, I think it's some kind of Sunnydale thing. We've been talking about it all evening, trying to figure out what they could have said to you to make you so upset, to act like you did because everybody that was there said, 'We can't believe that happened man. We cannot believe that.'
"A: I can't believe anybody saying that.
"SM: (Inaudible). How would you feel if somebody in your family was just going to work and somebody tried to take them from you?
"A: I couldn't do that. That's my life. That's the story of my life. (Inaudible)
"SM: Is this upsetting you?
"A: I can't believe (inaudible).
[¶] . . . [¶]
"Q: But it's, it's and the same token as that is if what all these people are saying is true and this did happen with you and now you're in a position where maybe there's some of the holes that they left out, where you can explain and fill those things and help yourself in the situation, not make the situation worse. I would like to see you take that opportunity to make the situation better than to make it worse.
"A: (Inaudible). This event has never taken place in my life.
"SM: Is that, is that
"A: That's it. Anything else, that's it.
"SM: Let's go back to your alibi. Who were you with today?
"A: I'm not talking anymore, that's it.
"Q: Alright.
"SM: You want to interview to end sir?
"A: It's over.
"Q: Okay.
"SM: No problem man.
"Q: Can I ask you one completely off topic question Kalaan?
"A: Yes sir.
[¶] . . . [¶] [Discussion of an incident that occurred a year and a half earlier]
"SM: How could someone this calm, cool and collected and quiet and respectful and intelligent do what he did today? And then come in here and act like nothing happened.
"A: No response to that. I'm going to give you a comparison and contrast and this is a hypothetical alright? There isn't any recording going on? Hypothetical, the panthers . . . [there follow somewhat rambling comments about black power and institutionalized racism]. Some people aren't even aware of it and may play a role in this, believe it's a noble cause but in reality there are actually individuals suffering, right?
"Q: I agree with you totally.
"A: So if I were that guy, I don't think you should look at him as an insane individual. . . . No officers, I'm not crazy. I wish I could assist you in with what you're seeking. Even if I did know, you know how they say you know, can't get caught snitching. (Inaudible) they will. They always will. I don't know nothing man. Can't give you guys anything and you guys have everything, go ahead (Inaudible). I don't know what else to say sirs.
[¶] . . . [¶] [Long discussion about the changing neighborhood, the increasing violence, people who've been killed]
"SM: It did happen and at some point you need to come to terms with that and why it happened or else you're never going to see the light of day again. This isn't going away man. We can sit here and talk about a hundred things all night long. But the bottom line is (inaudible).
"A: (Inaudible) but you all keep falling back to that.
"SM: Well that's why we're here dude. I'm not trying to fall back to it. It's the whole, it's the whole principal reason why we're here.
"A: I have nothing to say sir. (Inaudible).
"SM: Do you want to take a break and have something to drink or eat? Get to the bottom of it, cause we got all night, man.
"A: Let's do it.
"SM: Let's do it. Why did you try to kill those two guys tonight?
"A: I don't want to seem like I'm being disrespectful to you sir.
"SM: You're not
[¶] . . . [¶]
"SM: Right, so they told you to get off the block so I'm going to kill them? They didn't arrest you. They don't even know you. They never met you before and you tried to kill them. How's that going to look? . . . It has to be the fact that you've been fucked with by the police pretty much your whole life. Some police officers you think beat you up and now here they come again. Now they're fucking with you again.
"A: Whoa, (inaudible). Tries to make it seem like now I have a motive? That hurts man. That hurts. Now (inaudible).
[¶] . . . [¶]
"A: Look man. I don't know man. Wow. Wow. (Inaudible) when you try to twist it, misconstrue it into this (inaudible) to linking me to this event.
[¶] . . . [¶]
"Q: What kind of a person do you think would do something that?
"A: I don't know sir. There's all kinds of people in the world.
"Q: What kind of a person could do something like that?
"A: A baby could do something like that. A baby could pull the trigger and shoot somebody.
"SM: Do you think that there's a conspiracy against you right now
"A: No
"SM: to lock you up?
"A: No, it just makes me feel that you guys are being very good detectives and using the (inaudible) that you have now, and you're looking at it from all these possible in any and every way, possible (inaudible). I don't want to judge you for that. I'm not going to be upset with you, this is your job.
"SM: Why would all these people say you did this?
"A: Why would a lot of people say a lot of things (inaudible). They just upset, somebody has to pay for it. Maybe they're just scared and I'm thinking to get cops off their backs. (Inaudible) say something. I don't know. A lot of people do all kinds of things. Why? Why? Why is a good question.
[¶] . . . [¶]
"SM: . . . Are you going to defend yourself?
"A: There's nothing to defend.
"SM: So everything we said is true?
"A: I wasn't there.
"SM: You were there. You were there. . . . Case closed. Hello?
"A: Case closed.
"SM: Case closed man, let's go.
[¶] . . . [¶]
"Q: . . . Are you listening to what I'm saying or are you actually asleep?
"A: Yes sir.
[¶] . . . [¶]
"SM: How do you feel about what he said?
"A: (Inaudible)
SM: You want us to, are you asking for a lawyer at this point?
"A: No sir. (Inaudible). I'm not being disrespectful to you guys or nothing. I got nothing else to say. (Inaudible). I already had a great conversation with you guys. It was great. (Inaudible).
[¶] . . . [¶]
"SM: And you rode a bus today. Are you through talking to us Kalaan?
"A: Yes sir.
"SM: Alright. Do you want us to end the interview?
"A: I do. (Inaudible) and that's what you're calling it.
[¶] . . . [¶]
"A: Thought I said the interview was over.
"SM: I asked you if the interview was over.
"A: It is."
B. The Court's Ruling on the Motion to Suppress
At the hearing on Johnson's motion to suppress, Manning testified he continued to speak to Johnson after he made the statements that he had "nothing else to say," because Manning did not interpret the comments as indicating that Johnson wanted a lawyer or to terminate the interview and that Johnson "clearly had a lot to say. He was still talking."
After the hearing, following review of the parties' arguments on the issue, and after reading the transcript and viewing DVD clips of the interview, the trial court ruled: "Following a complete reading of the rights, and Mr. Johnson's indication that he understood, Sergeant Manning proceeded to ask Johnson questions. And Mr. Johnson proceeded to answer the questions without any indication that he did not wish to speak, or that he wished to invoke any of his Miranda rights. [¶] The transcript shows that Mr. Johnson understood his rights, and that he implicitly waived those rights, and agreed to speak with police."
The court then determined Johnson did not unequivocally invoke his right to remain silent until his response to the question, "Do you want us to end the interview?" There he states, "I do . . . and that's what you're calling it." The court found "this question and answer, this dialogue on page 41 to be unequivocal that at this point, Mr. Johnson is asserting his right to remain silent, to not talk further to the officers."
The court addressed the specific claims that Johnson had invoked his rights at several previous points in the interview:
"[At] page 14, line 12, the defendant says 'We have nothing more to talk about because like I told you, sirs, I have no information.' [¶] The Court does not find this to be an invocation of the right to remain silent. This is similar to the situation in People v. Martinez [(2010) 47 Cal.4th 911 (Martinez),] where the defendant is, in essence, saying 'That's all I have to say about it.'
"At page 19, lines 6 through 11—defendant is asked 'You want the interview to end. Sir? Responds 'It's over.' Answer: 'No problem, man.' [¶] And then the officers kept—says: 'Can I ask you one completely off topic question, Kalann?' [¶] And Kalann says 'Yes, sir.' [¶] But then, the defendant goes on to talk at length and keeps responding affirmatively, showing that he wants to keep talking and is not seeking to end the interview.
"Page 27, line 14, Mr. Johnson says 'I have nothing to say, sir.' [¶] The officer responds 'Do you want to take a break and have something to eat or drink? Get to the bottom of it because we've got all night, man.' [¶] Mr. Johnson responds 'Let's do it.' [¶] Again, like in People v. Martinez, Mr. Johnson is, in essence, saying . . . 'That is all I have to say about it.' But then agrees to keep on talking with 'Let's do it.'
"Page 39, the officer asks 'Do you want us to—are you asking for a lawyer at this point? [¶] Mr. Johnson responds 'No, sir. I'm not being disrespectful to you guys or nothing. I got nothing else to say. I already had a great conversation with you guys. It was great.' [¶] Mr. Johnson here verifies that he does not want a lawyer, and that he has been talking willingly to the officers.
"And then at page 41, line 5, the Court finds this clearly is the end of the interview." "Just before that, the officer says 'And you rode a bus today. Are you through talking to us, Kalann'? [']Yes, sir' is the response. [¶] Officer: 'All right. Do you want us to end the interview?' Mr. Johnson responds 'I do.' And that is what you are calling it. [¶] Further down on that same transcript page . . . 41, line 19. The officers keep trying to talk to him a little bit saying something to him. And Mr. Johnson says 'I thought I said the interview was over?' The officers[:] 'If I asked you if the interview was over?' [¶] The response by Mr. Johnson. 'It is.' " [¶] "The court finds this question and answer, this dialogue on page 41 to be unequivocal that at this point, Mr. Johnson is asserting his right to remain silent, to not talk further to the officers. [¶] Anything . . . after that point, 41—well, Mr. Johnson at line 4 says 'Seriously, the interview is over.' [¶] Anything after that point is not going to be admissible."
C. Legal Background and Analysis
" 'In reviewing Miranda issues on appeal, we accept the trial court's resolution of disputed facts and inferences as well as its evaluations of credibility if substantially supported, but independently determine from undisputed facts and facts found by the trial court whether the challenged statement was legally obtained.' " (Martinez, supra, 47 Cal.4th at p. 949; see People v. Smith (2007) 40 Cal.4th 483, 502; People v. Villaseñor (2015) 242 Cal.App.4th 42, 61.)
1. Implicit waiver. First, a waiver of Miranda rights need not be express. "The prosecution . . . does not need to show that a waiver of Miranda rights was express. An 'implicit waiver' of the 'right to remain silent' is sufficient to admit a suspect's statement into evidence." (Berghuis v. Thompkins (2010) 560 U.S. 370, 384.) Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent. (Berghuis, at p. 385; People v. Parker (2017) 2 Cal.5th 1184, 1216.) The trial court found Johnson was fully advised of his rights, that his decision to speak to the officers was voluntary, and that he impliedly waived his rights. Johnson does not contend otherwise.
2. Post-waiver invocation. Johnson contends that he subsequently invoked his constitutional right to remain silent at several points during his interrogation.
" 'Invocation and waiver are entirely distinct inquiries, and the two must not be blurred by merging them together.' " (Martinez, supra, 47 Cal.4th at p. 951.) "Whereas the question whether a waiver is knowing and voluntary is directed at an evaluation of the defendant's state of mind," evaluating a subsequent, "asserted invocation must include a consideration of the communicative aspect of the invocation—what would a listener understand to be the defendant's meaning." (People v. Williams (2010) 49 Cal.4th 405, 428 (Williams).) The latter inquiry is an objective one. (Ibid.) Consequently, in this post-waiver context, the "question is not what defendant understood himself to be saying, but what a reasonable officer in the circumstances would have understood defendant to be saying." (People v. Gonzalez (2005) 34 Cal.4th 1111, 1126.)
In Martinez, supra, 47 Cal.4th at pages 947-948, our Supreme Court held that following a Miranda waiver; a suspect must unambiguously assert his or her right to silence to invoke that right. An assertion of the right to remain silent is ambiguous, and thus not effective, if a "reasonable officer could interpret [the] defendant's statement as" demonstrating an intent other than "terminat[ing] the interrogation." (Williams, supra, 49 Cal.4th at pp. 432, 434 [defendant's statement—"I want to see my attorney cause you're all bullshitting now"—in context constituted "an expression of frustration and, as the trial court suggested, game playing, and was not an unambiguous invocation of the right to counsel precluding even the asking of clarifying questions"]; see also People v. Stitely (2005) 35 Cal.4th 514, 535 ["It is not enough for a reasonable police officer to understand that the suspect might be invoking his rights. [Citation.] Faced with an ambiguous or equivocal statement, law enforcement officers are not required . . . either to ask clarifying questions or to cease questioning altogether"].) Further, "[a] defendant may indicate an unwillingness to discuss certain subjects without manifesting a desire to terminate 'an interrogation already in progress.' " (People v. Silva (1988) 45 Cal.3d 604, 629-630 (Silva).)
In Martinez, the Supreme Court rejected the claim that the defendant invoked his right to silence when he told the officer, "That's all I can tell you" or when he at a later point stated, "I don't want to talk anymore right now." (Martinez, supra, 47 Cal.4th at pp. 949, 951-952.) Nor was his conditional statement, " 'I think I should talk to a lawyer before I decide to take a polygraph'" found to be an unambiguous invocation of his right to counsel. (Id. at p. 952.)
Here, despite our deference to the trial court's resolution of disputed facts and inferences and its evaluations of credibility, we must conclude from the transcript and the DVD of the interrogation that Johnson unambiguously invoked his right to remain silent at a point before that found by the trial court—immediately before the officer's request to ask an "off topic" question. We agree with the trial court's determination that Johnson did not unambiguously invoke his right to silence at points previous to this in the interrogation.
The first claimed invocation of the right came when Johnson stated: "Hold on, let me ask you this, if this entire meeting is about this situation that you just brought up to me and I've made it very clear to you that I have no idea whatsoever to give you even the smallest bit of information on it then I feel sirs that with all due respect, we have nothing more to talk about because, like I told you sirs I have no information." (Italics added.) Like the polygraph statement of defendant in Martinez, this was a conditional statement, in which Johnson was essentially denying his involvement and asserting he had no information about the incident. Moreover, his reluctance to discuss this subject did not unequivocally manifest a desire to terminate the interrogation. (See Silva, supra, 45 Cal.3d at pp. 629-630.) Here, Johnson continued explaining and denying his involvement. The statement was not an unambiguous invocation of his right to silence.
Johnson's statement that, "I don't have anything else to say sir" is similar to those statements found not to constitute an unambiguous assertion of the right in Martinez, supra, 47 Cal.4th at p. 949 ("That's all I can tell you"); People Castille (2005) 129 Cal.App.4th 863, 885 ("Do I have to talk about this right now?"); People v. Musselwhite (1998) 17 Cal.4th 1216, 1238-1239 ("I don't want to talk about this"); People v. Ashmus (1991) 54 Cal.3d 932, 968 ("I ain't saying no more"), abrogated on other grounds as recognized in People v. Yeoman (2003) 31 Cal.4th 93, 117; and Silva, supra, 45 Cal.3d at p. 629 ("I don't know. I really don't want to talk about that"). In context, it was not a clear and unambiguous assertion of the right to remain silent.
A similar analysis applies to Johnson's statement, "That's it. Anything else, that's it," which came after his denial, "This event has never taken place in my life," and Manning's statement, "Is that, is that." Johnson's declaring, "Anything else, that's it," could reasonably be interpreted to mean, that Johnson was sticking to his story. Like the statements recounted in the above cases, the trial court could determine that no invocation of the right occurred at that point.
However, we believe the following constitutes an unambiguous assertion by Johnson of the right to remain silent and to end the interview:
"SM: Let's go back to your alibi. Who were you with today?
"A: I'm not talking anymore , that's it.
At this point on the DVD of the interview, we hear Johnson say "to you or to anyone."
"Q: Alright.
"SM: You want to interview to end sir?
"A: It's over.
"Q: Okay.
"SM: No problem man.
"Q: Can I ask you one completely off topic question Kalaan?
"A: Yes sir." (Italics added.)
The trial court determined Johnson did not at this point unambiguously assert his right to remain silent. Rather, the trial court determined the statement, "I'm not talking any more, that's it," coming after the officer asked for Johnson's alibi and the statement, "It's over," when asked whether he wanted the interview to end, could be viewed as expressions of frustration with the interviewer and were at least inconsistent with his willingness to answer the officer's "off topic question," and his willingness to freely and at some length continue the discussion. The court read the transcript, heard Manning's testimony and watched and listened to the DVD of the interrogation, observing Johnson's demeanor. The court appears to have relied heavily on the fact that Johnson continued to talk to the officers after that point and later stated he "had a great conversation with you guys."
We must independently determine from the undisputed facts whether a "reasonable officer could interpret [the] defendant's statement as" demonstrating an intent other than "terminat[ing] the interrogation." (Williams, supra, 49 Cal.4th at p. 432; see id. at p. 434.) At this point in the interview, we conclude a reasonable officer could only interpret Johnson's statement as demonstrating his intent to terminate the interview and to invoke his right to silence. The officers' responses indicated they understood this when Kumli said, "Alright" and Manning first inquired whether Johnson wanted "to end the interview, sir?" Johnson's unambiguous response, "It's over," followed by Kumli's "Okay" and Manning's "No problem man" should have ended the interview. Nevertheless, the officers continued to question Johnson, first about other matters and then returned to questions about the shooting. That Johnson continued to speak with the officers does not demonstrate he had not invoked his rights. Rather, it says more about the officers' persistence in continuing their questioning after Johnson's unambiguous assertion of his right to remain silent. 3. Prosecutor's Use of Johnson's Inconsistent Statements (Doyle v. Ohio (1976) 426 U.S. 610)
In Missouri v. Seibert (2004) 542 U.S. 600, the Supreme Court addressed the practice of holding off giving Miranda warnings until interrogation has produced a confession, then following with Miranda warnings and leading the suspect to cover the same ground a second time. The court held not only the first pre-Miranda statement to be inadmissible, but the post-Miranda statements as well. (Missouri, at p. 604.) In so doing, the court noted, "Emphasizing the impeachment exception to the Miranda rule approved by this Court, Harris v. New York, 401 U.S. 222 (1971), some training programs advise officers to omit Miranda warnings altogether or to continue questioning after the suspect invokes his rights." (Id. at p. 610, fn. 2, italics added.) As the note recognizes, California training programs have been prominent in such practices. (Ibid., citing among others, "California Commission on Peace Officer Standards and Training, Video Training Programs for California Law Enforcement, Miranda: Post-Invocation Questioning (broadcast July 11, 1996) ('We . . . have been encouraging you to continue to question a suspect after they've invoked their Miranda rights'); . . . see also Weisselberg, Saving Miranda, 84 Cornell L.Rev. 109, 110, 132-139 (1998) (collecting California training materials encouraging questioning 'outside Miranda'). This training is reflected in the reported cases involving deliberate questioning after invocation of Miranda rights." (Ibid.)
Johnson contends that the prosecutor exploited the "illegality" of the violation of his Miranda rights. We disagree.
At trial, the prosecution introduced a transcript and the DVD of those portions of the police interrogation, the court had found admissible. The prosecutor also cross-examined Johnson as to his statements to police and that he had never mentioned self-defense to them. Johnson acknowledged that he was not completely truthful with the police. The prosecutor asked Johnson whether the police had given him multiple opportunities to tell his side of the story. He responded: "I don't know. It sounds like they already had my side of the story." The prosecutor then took him through his statements denying involvement in the shooting and his several lies denying any involvement. Toward the end of her cross-examination of Johnson, the prosecutor again asked whether police gave him "multiple opportunities to tell your story." Johnson again responded, "Seemed like they already had a story." He explained he had been traumatized by events of the week before, was very scared and did not trust the police.
"Q. Well, when you were first sitting there and they started asking you questions, the first thing Sergeant Manning asked you was, 'Weren't you at Garlington and Commer Court today?'
"A. Umhum.
"THE COURT: That's 'Yes,' right?
"THE WITNESS: Yes. . . . [¶] . . . [¶]
"BY MS. HAWKINS: Q. Do you remember being asked that question?
"A. Yes.
"Q. And you responded 'No, sir.' [¶] Do you remember giving that answer?
"A. Yes.
"Q. Well, that was a lie, right?
"A. Yes.
"Q. You never mentioned at that point that you had to get involved in a shooting because of selfdefense, right?
"A. No.
"Q. And you were asked if you were on the bus with about seven other kids that day. Do you remember being asked that question?
"A. Yes.
"Q. And you said, 'No, I wasn't.' [¶] Do you remember saying that?
"A. Yes.
"Q. That was a lie, too, right?
"A. Yes, it was.
"Q. And then Sergeant Manning started kind of giving you more information. He told you that he had talked to Constance. [¶] Do you remember that?
"A. He told me he spoke to everyone. He told me multiple people.
"Q. And you still said you hadn't been there and none of that had occurred; is that fair to say?
[¶] . . . [¶]
"Q. I'm asking you if you were lying to the police when they asked you whether you were present on that day after they started giving you more information.
"A. Yes.
"Q. And they kept giving you a little bit more information. They said there were security cameras in the area. And you said, 'How could the cameras catch me somewhere that I wasn't present?' [¶] Do you remember saying that?
"A. Yes.
"Q. That was a lie?
"A. Yes, it was.
"Q. And you never mentioned selfdefense or being in fear for your life at that point, did you?
"A. No."
In her closing argument, the prosecutor emphasized the lies Johnson admittedly told the police and the inconsistency with his trial testimony that he was present, but acting in self-defense. She contrasted the police interviews of the security officers at the time and their consistent testimony in court with Johnson's stories. "He gets arrested later that day, starts lying. 'Wasn't me. I wasn't there. I don't have the slightest idea, sir.' [¶] That was a direct quote from his statement. [¶] And he was given ample opportunities to explain his side of the story. They were practically begging him with, 'Hey, give us your side of the story, tell us what happened,' right? [¶] And that's because he didn't know all of the evidence at that time. He knew a little bit. Sergeant Manning would kind of give him a piece, give him a little bit more, give him a little bit more, and he would still hold to, 'It wasn't me. It wasn't me.' [¶] Well, [gunshot residue testing] hadn't been done at that point. DNA hadn't been done. [¶] So those aspects of the physical evidence—he now sat through this trial and [has] seen those, and basically had no choice but to tell you that this happened in self-defense, okay?" In urging the jury to reject the lesser offense of imperfect self-defense, the prosecutor argued, "[h]e didn't have an honest belief. The self-defense story got concocted after all the evidence started coming in against him, and he had no choice."
It is "fundamentally unfair and a deprivation of due process to allow the arrested person's silence to be used to impeach an explanation subsequently offered at trial." (Doyle v. Ohio (1976) 426 U.S. 610, 618 (Doyle).) Doyle has no application here, where the prosecution did not use Johnson's silence to impeach him, but rather, used his statements, repeatedly denying any involvement to impeach him and the lies he told the police during his interrogation. (See People v. Tom (2014) 59 Cal.4th 1210, 1225 ["[T]he privilege 'is not self-executing' and 'may not be relied upon unless it is invoked in a timely fashion' "].)
When Johnson took the stand and testified that he committed the shooting, but did so in self-defense, he was properly impeached with the prior inconsistent statements he made to the police denying any involvement or knowledge. The Supreme Court has held: "Doyle bars the use against a criminal defendant of silence maintained after receipt of governmental assurances. But Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements. Such questioning makes no unfair use of silence because a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. As to the subject matter of his statements, the defendant has not remained silent at all." (Anderson v. Charles (1980) 447 U.S. 404, 408; see People v. Collins (2010) 49 Cal.4th 175, 203-204.) As in Anderson v. Charles, we conclude, "The questions were not designed to draw meaning from silence, but to elicit an explanation for a prior inconsistent statement." (Anderson, at p. 409.)
We also reject Johnson's claim that his statements to police, denying he was present at the scene and denying any knowledge of the shootings, were not directly inconsistent with his trial testimony, in which he admitted being present and shooting at the officers, but testified he did so in self-defense.
D. No Prejudice
Although we have concluded that Johnson invoked his right to remain silent at the statement immediately before the police asked whether they could ask an "off topic" question, we further conclude any error was harmless beyond a reasonable doubt. (See People v. Cahill (1993) 5 Cal.4th 478, 509-510.) The prosecutor's cross-examination of Johnson and her reference to his lies and denials in the face of multiple opportunities to tell his story, referred primarily, if not entirely, to statements he made before this point in the interrogation. Moreover, as observed above, they did not refer to Johnson's silence, but to his prior inconsistent statements.
II.
Sufficiency of the Evidence —Resisting Arrest
Johnson contends there is insufficient evidence to sustain his misdemeanor convictions relating to resisting arrest and assault on a peace officer on April 6, 2010. He argues there was no evidence the officers were acting in the lawful course of their duties, which is an element of each of the misdemeanor offenses. (§§ 148, subd. (a)(1); 241); see In re Manuel G. (1997) 16 Cal.4th 805, 815-816, fn. 4 [resisting arrest]; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217-1223 (Gonzalez) [aggravated assault against a peace officer engaged in the performance of his or her duties], superseded by statute as stated in In re Steele (2004) 32 Cal.4th 682, 691.)
On this challenge to the sufficiency of the evidence, we "examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578.)" (People v. Kraft (2000) 23 Cal.4th 978, 1053; see Jackson v. Virginia (1979) 443 U.S. 307, 318-319; People v. Smith (2014) 60 Cal.4th 603, 617.) "The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. (People v. Reilly (1970) 3 Cal.3d 421, 425; accord, People v. Pensinger (1991) 52 Cal.3d 1210, 1237.)" (Kraft, at p. 1053.)
Johnson does not contend there was no substantial evidence that the officers' use of force was reasonable in the circumstances. At root, Johnson's claim is that absent corroborative evidence, such as the 911 call or testimony by the complaining resident, who later told police she could not identify the suspect, testimony by officers about what they were told about the suspect's description was inadmissible hearsay that could not be offered for the truth. Consequently, there was insufficient evidence that the police were acting in the lawful course of their duties in detaining and then arresting him. Johnson is wrong on several fronts.
Evidence as to what the officers were told about the suspect's appearance, whether from dispatch or from other officers, was not hearsay. "The rule excludes hearsay statements only when they are offered for the same purpose as testimony of a witness on the stand and therefore depend for probative value on the credibility of the declarant. [Citations.] [¶] The importance of this qualification is that out-of-court statements not offered to prove the truth of the matter stated are not regarded as hearsay. No special exception to the hearsay rule need be invoked for their admission, they are not within the hearsay rule at all." (1 Witkin, Cal. Evid. (5th ed. 2012) Hearsay, § 5, p. 788.)
The officers' testimony regarding the "hot prowl" reported at 254 Argonaut and the accompanying suspect's description was not offered to prove the truth that there was a hot prowl or that the suspect was as described, but was offered for the non-hearsay purpose of explaining the officers' actions. There was no objection to the initial testimony of motorcycle police officer Recinos, who testified that he gave chase when, within two minutes of receiving the hot prowl dispatch, he saw the suspect jump over a fence in the neighborhood and run. There was a continuing hearsay objection to LaRocca's testimony and the court advised the jury that "Officer LaRocca's response that someone told him or he heard said to him is not to be taken for the truth of what was said to him, that what is said is true, but rather, to explain his actions."
Further, the broadcast of the contemporaneous citizen call to 911 was sufficient to justify the officers' detention of Johnson. (People v. Dolly (2007) 40 Cal.4th 458, 470-471 [anonymous 911 call has sufficient indicia of reliability to justify a detention]; see also People v. Brown (2015) 61 Cal.4th 968, 980-986 [same].) Corroboration was not required for that purpose.
Considering the whole record, and viewing the evidence in the light most favorable to the People, there was substantial evidence that the police were acting in the lawful course of their duties. (See People v. Johnson, supra, 26 Cal.3d at pp. 576-577.)
III.
Instructional Error Claim —Lawful Performance of Officer's Duties
As discussed above, a violation of sections 148, subdivision (a)(1) and 241, require as an element that the officer, at the time of the offense, be engaged in the lawful performance of the officer's duties. Johnson contends the court's instructions on counts 2 through 5 were prejudicially deficient because they omitted any reference to the legal principles that an officer is not performing his lawful duty if the detention or arrest is unlawful or if the officer uses excessive force.
Specifically, Johnson contends the court committed prejudicial error in failing to sua sponte instruct the jury in terms of a bracketed portion of CALCRIM No. 2656 and portions of CALCRIM No. 2670 where there were disputed issues as to whether officers were lawfully performing or attempting to perform their duties as peace officers.
We note that CALCRIM Nos. 2656 and 2670 applicable at the time of trial were in all relevant respects identical to those provisions in use today. (Compare Judicial Council of California Criminal Jury Instructions (2013) with Judicial Council of California Criminal Jury Instructions (2017).) Therefore, we cite to the current version.
The trial court instructed the jury in terms of CALCRIM No. 2656 as follows: "The defendant is charged in Counts II, III, and V with resisting, obstructing, or delaying a peace officer in the performance or attempted performance of his duties in violation of Penal Code section 148(a).
"To prove that the defendant is guilty of these crimes, the People must prove that: [¶] 1. Larry McDevitt, Jonathan Ng, and Oscar Padilla were peace officers lawfully performing or attempting to perform their duties as peace officers (italics added); [¶] 2. The defendant willfully resisted, obstructed, or delayed Larry McDevitt, Jonathan Ng, and/or Oscar Padilla in the performance or attempted performance of those duties; AND [¶] 3. When the defendant acted, he knew, or reasonably should have known, that Larry McDevitt, Jonathan Ng, and Oscar Padilla were peace officers performing or attempting to perform their duties (italics added). [¶] Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] A person who is employed as a police officer by San Francisco is a peace officer. [¶] The duties of a peace officer include responding to crime scenes, protecting the public, and investigating reports of criminal activity." (CALCRIM No. 2656.)
As to the offense of assault upon a peace officer (§ 241, subd. (c)) (the lesser included offense of battery upon a police officer), the jury was instructed in relevant part: "When the defendant acted, the person assaulted was lawfully performing his duties as a peace officer" and that "[w]hen the defendant acted, he knew or reasonably should have known, that the person assaulted was a peace officer who was performing his duties."
Johnson points out that CALCRIM No. 2656 notes that, "When lawful performance is an issue, give the following paragraph and Instruction 2670, Lawful Performance; Peace officer." (Note, CALCRIM, supra, at p. 542.) The "following paragraph" provides: "[A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]" Johnson summarizes that instruction in his appellate briefs: "CALCRIM 2670 instructs the jury that the prosecution has the burden of proving beyond a reasonable doubt that an officer was lawfully performing his duty and that an officer is not lawfully performing his duty 'if he . . . is unlawfully arresting or detaining someone' or 'using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.' "
CALCRIM No. 2670 provides in relevant part then as it does today: "The People have the burden of proving beyond a reasonable doubt that <insert name, excluding title> was lawfully performing (his/her) duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of <insert name[s] of all offense[s] with lawful performance as an element>. A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention). <A. Unlawful Detention> [A peace officer may legally detain someone if [the person consents to the detention or if]:
1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; AND
2. A reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful. In deciding whether the detention was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she detained the person.] <B. Unlawful Arrest> [A peace officer may legally arrest someone [either] (on the basis of an arrest warrant/ [or] if he or she has probable cause to make the arrest). Any other arrest is unlawful. Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime. In deciding whether the arrest was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she arrested the person. [¶] . . . [¶] <C. Use of Force> [Special rules control the use of force. A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in selfdefense. [If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force. [However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him.]] If a peace officer uses unreasonable or excessive force while (arresting or attempting to arrest/ [or] detaining or attempting to detain) a person, that person may lawfully use reasonable force to defend himself or herself. A person being arrested or detained uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.]
"The longstanding rule in California . . . is that 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 . . . was committed [against him or her]." (In re Manuel G., supra, 16 Cal.4th at p. 815; quoting from Gonzalez, supra, 51 Cal.3d at p. 1217; see People v. Jenkins (2000) 22 Cal.4th 900, 1020.) "The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in 'duties,' for purposes of an offense defined in such terms, if the officer's conduct is unlawful." (Gonzalez, at p. 1217.) "Disputed facts relating to the question whether the officer was acting lawfully are for the jury to determine when such an offense is charged. ([Gonzalez], at p. 1217.)" (Jenkins, at p. 1020.) An individual who physically resists a detention that is unlawful because the officer uses excessive force is not guilty of battery on, or resisting arrest by, an officer engaged in the performance of his or her lawful duties because the officer is acting outside those lawful duties in using excessive force to detain the individual. (People v. Curtis (1969) 70 Cal.2d 347, 354-357 [battery on a peace officer], disapproved on other grounds in Gonzalez, at p. 1222; Jackson v. Superior Court (1950) 98 Cal.App.2d 183, 188-189 [resisting arrest].) Stated differently, when a police officer uses excessive force, the individual is entitled to use reasonable force to protect him or herself in accordance with principles of self-defense. (People v. Olguin (1981) 119 Cal.App.3d 39, 46-47.)
Although Johnson did not specifically request an instruction on the effect of an officers' unlawful detention or arrest or use of excessive force, " ' "[i]t 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." ' " (People v. Breverman (1998) 19 Cal.4th 142, 154.) We have recently observed that "a trial court has a sua sponte duty to provide proper instructions on all of the elements of the charged offenses." (People v. Lewelling (2017) 16 Cal.App.5th 276, 295.)
We must consider the whole record to determine whether there was a reasonable likelihood that the jury was misled. (See People v. Kelly (1992) 1 Cal.4th 495, 526-528.) The People argue that the standard instruction given was adequate and that the additional language of CALCRIM No. 2656 and CALCRIM No. 2670 "were essentially tailored instructions which need be given only on request." The cases cited by the People do not involve these particular instructions or any that are analogous to them.
The People point to the instructions for count 1, causing serious bodily injury to a peace officer, which stated the prosecution must prove, among other things, that the victim was a peace officer lawfully performing his duties or attempting to perform his duties, that the defendant willfully resisted the officer in the performance of his duties, that the officer's actions "were reasonable based on the facts or circumstances confronting him at the time," and that "[t]he detention and arrest of the defendant were lawful, and there was probable cause to detain." (Italics added.) However, the jury found the Johnson "not guilty" as to this count and no instruction given for counts 2 through 5 advised the jury that the officers' actions must have been "reasonable based on the facts and circumstances confronting him at the time" or that the detention and arrest must have been lawful and based on probable cause. That the jury found Johnson not guilty of count 1 could indicate it did not find the officers' actions reasonable or the detention and arrest lawful and based on probable cause.
The CALCRIM Bench Notes to Nos. 2656 and 2670 recognize a "sua sponte duty" (CALCRIM, supra, at pp. 542, 547) to give these instructions "if there is sufficient evidence the officer was not performing his or her duties and lawful performance is an element of the offense." (CALCRIM, supra, Bench Notes, CALCRIM No. 2670, at p. 547, citing Gonzalez, supra, 51 Cal.3d at p. 1217 ["disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element"]; People v. Olguin, supra, 119 Cal.App.3d, 39, 46-47 [even in the absence of a request court has a duty to instruct that excessive force by a police officer renders unlawful an otherwise lawful arrest, and that an arrestee is entitled to an acquittal if the arrestee used reasonable force to protect himself when the arresting officer used excessive or unreasonable force during the arrest]; People v. Castain (1981) 122 Cal.App.3d 138, 145; and People v. White (1980) 101 Cal.App.3d 161, 167 ["it [becomes] essential for the jury to be told that if they found the arrest was made with excessive force, the arrest was unlawful and they should find the defendant not guilty of those charges which required the officer to be lawfully engaged in the performance of his duties"].)
Johnson urges there were disputed issues of fact as to whether the police were in lawful performance of their duties at the time they detained and arrested him. He contends there was a "real issue as to whether the police had a right to detain or arrest him," and as to whether the officers' show of force was excessive when Recinos pulled his gun on Johnson and when the officers tackled him and pulled out some of his dreadlocks. He contends that the officers' show of force could have been found excessive had the jury been properly instructed.
We agree with Johnson that the court was required to sua sponte instruct the jury in this case where there was substantial evidence from which a reasonable juror could determine the officers used excessive force in effecting their detention and arrest of Johnson. The People did not argue in their respondent's brief that the evidence would not support the giving of these instructions if they were required to be given sua sponte.
At oral argument, the People conceded that the lack of lawfulness of the arrest would be a defense, as to which the sua sponte instruction would be required. (People v. Gutierrez (2009) 45 Cal.4th 789, 824.) However, the People argued for the first time that other conditions underlying the duty to instruct sua sponte on a defense were not met. We have determined that substantial evidence supported the instruction. Further, we will not consider the belated contention, raised for the first time at oral argument, that the instruction was not otherwise supported. (E.g., Kinney v. Vaccari (1980) 27 Cal.3d 348, 356-357, fn. 6; Archdale v. American Internat. Specialty Lines Ins. Co. (2007) 154 Cal.App.4th 449, 472; cf. People v. Rangel (2016) 62 Cal.4th 1192, 1218-1219 [refusing to entertain arguments made for the first time in a reply brief].)
The parties dispute whether the error requires reversal. The People, arguing the proper test for prejudice is People v. Watson (1956) 46 Cal.2d 818, contend the error does not require reversal because it is not reasonably probable that Johnson would have obtained a more favorable result absent the error. Johnson argues the test for prejudice is the more stringent standard of Chapman v. California (1967) 386 U.S. 18, because the error improperly described or omitted an element of the offense by not explaining that an officer is not performing his or her lawful duty if the officer uses excessive force. We conclude Chapman is applicable here. However, we would find the error reversible under the "miscarriage of justice" standard of Watson as well.
Here, we are persuaded that it was reasonably probable Johnson would have received a more favorable verdict on counts 2 through 5 had the jury been properly instructed. If properly instructed, a jury reasonably could have found in favor of Johnson on the excessive force issue, because these counts turned on assessing the credibility of two sharply conflicting versions of what happened and a rational jury could have credited Johnson's version while rejecting the version of the prosecution witnesses. Indeed, the jury indicated it did not entirely credit the prosecution witnesses when it convicted Johnson on the lesser included offense of misdemeanor assault rather than misdemeanor battery on a peace officer. The jury also found Johnson not guilty of resisting a peace officer, causing serious bodily injury (Pen. Code, § 148.10, subd. (a)). In the circumstances, we cannot find the instructional error was harmless.
IV.
Admission of DNA Analysis Evidence
Johnson contends the court violated his Sixth Amendment right to confront and cross-examine the witnesses against him when it allowed Cherisse Boland, the supervisor of the analyst who performed the DNA analysis (Tahnee Nelson Mehmet), to testify to her own independent conclusions based on the DNA report generated by Mehmet. Johnson contends that in so doing, the court violated his constitutional right to be confronted with the witnesses against him pursuant to Crawford v. Washington, supra, 541 U.S. 36. He argues this hearsay evidence was "testimonial" under Crawford and Melendez-Diaz v. Massachusetts (2009) 557 U.S. 305. (See also People v. Sanchez (2016) 63 Cal.4th 665.)
We note our Supreme Court decided People v. Sanchez, supra, 63 Cal.4th 665, after the briefing was completed in this matter.
We need not wade into these waters because admission of Boland's testimony, even if erroneous, was harmless beyond a reasonable doubt under the standard for error of federal constitutional dimension. (Chapman v. California, supra, 386 U.S. 18.)
There was no issue of identity here. The evidence identifying Johnson as the shooter was overwhelming. The security officers observed him for a substantial time before the shooting. They spoke with him and watched him come and go. The white Giants jacket was found in his bedroom and identified as the jacket he was wearing immediately before the shooting. His footprint was found in the backyard of the house on Palou Street, abutting the elementary school. Gunshot residue was found on the glove and on his hand. Surveillance video of the incident showed Johnson interacting with the officers. Defense counsel acknowledged in his opening statement that there was no question that Johnson was the shooter. This was a sound tactical decision because even without the DNA evidence in the glove, the evidence identifying Johnson as the shooter was undisputed. Johnson admitted he shot at the officers.
Johnson testified that he was afraid, that the officers reached for their guns and shot at him first and that he was acting in self-defense. Defense counsel urged the jury to consider whether Johnson had an "honest but unreasonable belief" that he was acting in self-defense. DNA evidence found in his glove was simply not relevant to that determination. Johnson argues that the prosecutor tried to use the glove evidence to attempt to demonstrate that the shooting was premeditated and to attack Johnson's credibility. The jury rejected the premeditation argument, convicting Johnson of two counts of the lesser offense of attempted voluntary manslaughter instead of attempted murder. We fail to see how suppression of the DNA evidence would have made any difference in the prosecutor's use of the glove evidence. Nor would the absence of the DNA evidence have affected the jury's evaluation of Johnson's credibility.
In a separate order issued with this opinion, we deny Johnson's petition for habeas corpus. (In re Johnson (No. A144725).) --------
V.
Penal Code Section 12022.5
In a supplemental brief filed with permission of the court, Johnson contends remand is required to permit the trial court to exercise its discretion to strike the firearm enhancements under Senate Bill No. 620, amending sections 12022.5, subdivision (a) and 12022.53, subdivision (h), effective January 1, 2018. The People agree that the amendments apply retroactively to cases such as this that are not final. However, respondent maintains Johnson is not entitled to remand and resentencing because the record conclusively shows the trial court would exercise its discretion to impose the enhancements. Because we are remanding the case in any event, the court should be given the opportunity to exercise its discretion under the amended law to determine whether to strike or dismiss the enhancements.
DISPOSITION
We reverse counts 2 through 5 of the judgment convicting Johnson of misdemeanor resisting arrest and assault on peace officers for instructional error and we remand to the trial court for further proceedings, including resentencing, at which the court shall exercise its discretion as to whether to strike or dismiss the firearm enhancements. In all other respects, we affirm the judgment.
/s/_________
STEWART, J. We concur. /s/_________
KLINE P.J. /s/_________
RICHMAN, J.