Opinion
G054881
04-16-2018
THE PEOPLE, Plaintiff and Respondent, v. CLIFFORD CHAUN LOYER, Defendant and Appellant.
John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16WF1726) OPINION Appeal from a judgment of the Superior Court of Orange County, James Edward Rogan, Judge. Affirmed. John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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A jury convicted defendant Clifford Chaun Loyer of one count of domestic battery with corporal injury (Pen. Code, § 273.5, subd. (a); count one), two counts of resisting and deterring an executive officer (§ 69; counts two and five), one count of battery on a peace officer (§ 243, subd. (b); count six), and one count of misdemeanor vandalism (§ 594, subds. (a) &(b)(2)(A); count eight). Subsequently, the trial court found true allegations defendant had two prior serious felony convictions and a prison prior. The court sentenced defendant to eight years and eight months in state prison.
All further statutory references are to the Penal Code.
The court granted defendant's motion to dismiss count three (escape by force or violence; § 4532, subd. (b)(2)), and the jury found defendant not guilty of counts four (resisting a peace officer causing injury; § 148.10, subd. (a)), and seven (battery on a peace officer; § 243, subd. (b)).
Defendant's sole contention on appeal is that his two section 69 convictions for resisting and deterring an executive officer should be consolidated into a single conviction because resisting multiple police officers during a single incident constitutes a single violation of the statute. We disagree and affirm the judgment.
I
FACTS
R.L. was driving when he saw defendant repeatedly punching a woman in the face and upper body. R.L. pulled over and called the police.
Police Officers Gregory Blum and Thomas Flores responded. Blum had defendant sit on the curb while Flores contacted the woman. Flores noticed the woman's nose and eyes were red and blood was between her nose and mouth. In speaking with her, Flores learned she was defendant's wife. Flores arrested defendant for domestic violence and transported him to jail.
At the jail, defendant was booked and placed in a holding cell by himself. Sergeant Matthew Timney was monitoring the holding cell when he saw defendant crouch behind the block wall separating the shower area from the cell. Timney saw defendant furtively move an object from behind the wall to the door and place it on the ground. The object was a piece of metal trim from the vent. Timney called Flores over and together they watched defendant cover it with toilet paper. Concerned that the item under the toilet paper was a weapon, Timney and Flores decided to enter the cell to retrieve it.
Before entering the defendant's cell, Flores ordered defendant to the back of the cell and face the wall. Defendant complied. Flores entered the cell first, followed by Timney and a private security officer. When Flores went to retrieve the object under the toilet paper, defendant ran at the officers, shouting, "I can't be in here."
Flores punched defendant in an effort to stop him. Around the same time, the private security officer fired her taser at defendant. The taser struck Flores and defendant. Flores and Timney pushed defendant back into the cell onto a bunk. The officers attempted to restrain defendant's arms but defendant continued to kick and flail his arms. Defendant punched at Flores, grazing Flores's face.
Timney fired his taser, which ended up shocking defendant as well as Flores and Timney. Defendant kept struggling and kicked Timney in the stomach. Timney stepped back and pulled defendant off the bunk onto the floor. Additional police officers entered the cell and, together with Flores and Timney, subdued and handcuffed defendant. During the struggle to control defendant, Flores injured his hand, requiring surgery.
II
DISCUSSION
In counts two and five, the jury found defendant guilty of resisting an executive officer in violation of section 69. Count two pertained to Flores, while count five pertained to Timney. Defendant contends "[c]ounts two and five should be consolidated into a single violation of section of 69 because a defendant who resists arrest by multiple police officers during a single incident commits only one violation of section 69." The Attorney General responds that defendant forfeited this claim by failing to demur to the information pursuant to section 1012. We disagree with the Attorney General.
Section 1012 provides that "[w]hen any of the objections mentioned in Section 1004 appears on the face of the accusatory pleading, it can be taken only by demurrer, and failure so to take it shall be deemed a waiver thereof . . . ." One of the objections identified in section 1004 is the improper charging of more than one offense under section 954. (§ 1004, subd. 3.)
People v. Shabtay (2006) 138 Cal.App.4th 1184, is instructive. There, a defendant operating an identity theft scheme obtained 11 access cards in the names of other persons during a 12-month period. The defendant was charged with, and convicted of, two counts of violating section 484e, subdivision (b), which makes it illegal for a "'person, other than the issuer'" to "'acquire[] access cards issued in the names of four or more persons'" "within any consecutive 12-month period." (Id. at pp. 1188-1189.) The Court of Appeal reversed the defendant's conviction on one of the two counts, holding "only one conviction within any consecutive 12-month period is permissible . . . under section 484e, subdivision (b)." (Id. at p. 1188.)
In People v. Shabtay, supra, 138 Cal.App.4th at pages 1191-1192, footnote omitted, the Attorney General made the same argument asserted here, "that [the] defendant's failure to demur to the information pursuant to section 1004 constitutes a waiver of the multiple-conviction issue." The Court of Appeal rejected this claim. "While a demurrer does lie to challenge an improper charging of more than one offense under section 954, the failure to demur does not justify a multiple conviction that is improper as a matter of law. A demurrer would have prevented a trial on two counts of violating section 484e, subdivision (b). Having failed to demur, defendant cannot complain about any prejudice he may have suffered from facing trial on a count that should not have been prosecuted, because the failure to demur waives the issue. [Citations.] However, the lack of a demurrer does not mean defendant waives any objection to an unwarranted multiple conviction." (Id. at p. 1192.)
The same reasoning and result applies here. Defendant's failure to demur to the information's allegation of two counts of resisting an executive officer did not waive his right to object to and challenge his convictions on those counts.
We turn now to defendant's contention his two section 69 convictions should be consolidated into a single conviction. We are not persuaded.
"Multiple convictions for violating a statute are appropriate only where the actus reus prohibited by the statute (the gravamen of the offense) is committed more than once. [Citations.] . . . '[T]he number of times the act is committed determines the number of times the statute is violated.' [Citation.]" (People v. Campbell (2017) 12 Cal.App.5th 666, 673-674; see Wilkoff v. Superior Court (1985) 38 Cal.3d 345, 349 ["a charge of multiple counts of violating a statute is appropriate only where the actus reus prohibited by the statute—the gravamen of the offense—has been committed more than once"].) For example, where a person kills several people while driving intoxicated, he may properly be convicted for multiple violations of the vehicular manslaughter statute but not for multiple violations of the statute prohibiting drunk driving. (Id. at pp. 349-350.)
Thus, the issue here is whether defendant violated the gravamen of section 69 more than once. Section 69, subdivision (a), provides: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment."
"The statute 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. [Citation.]" (In re Manuel G. (1997) 16 Cal.4th 805, 814.) In this case, defendant was charged with both types of offenses under section 69, i.e., for unlawfully attempting "by means of threats and violence to deter and prevent" Flores and Timney from performing their duties, and for "knowingly resist[ing them] by the use of force or violence."
The actus reus or gravamen of the section 69 offenses in this case is the use of force or violence to resist Flores and Timney. (See Brooks v. Superior Court of Los Angeles County (1966) 239 Cal.App.2d 538, 541 [gravamen of section 69 offense is "threats, force and violence"].) The applicable facts show defendant used force or violence numerous times in resisting Flores and Timney. For example, defendant used force in kicking and flailing his arms when Flores and Timney attempted to restrain him after pushing him back into the cell. Defendant used violence when he punched Flores and again when he kicked Timney in the stomach. Since defendant committed the act prohibited by section 69 more than once, he was properly convicted of multiple violations of the statute.
Although defendant is correct section 69 "can be violated by making threats without violence," this case does not involve such a situation.
Defendant fails to cite any direct authority for his assertion that multiple convictions under section 69 are not permissible. Rather, defendant contrasts section 69 with section 148, subdivision (e), which contains a subdivision expressly providing that "[a] person may be convicted of multiple violations of this section if more than one public officer, peace officer, or emergency medical technician are victims." He argues the absence of similar language in section 69 "suggests a legislative intent to make resistance to multiple officers during a single occasion only one violation of section 69."
Defendant relies on People v. Hairston (2009) 174 Cal.App.4th 231 (Hairston). There, the defendant was convicted of three counts of violating section 148, subdivision (a)(1), which makes it a misdemeanor to resist, delay, or obstruct a peace officer. The defendant ran away from three officers who had accosted him at different times and locations during the same search. The defendant challenged his convictions on the basis that his actions constituted one violation of the statute. The court noted that "[u]nless the Legislature says otherwise, if a defendant commits a single criminal act that affects multiple victims, he can be convicted of multiple counts of violating the same statute only if the gravamen of the offense 'is centrally an "act of violence against the person."'" (Hairston, at p. 238.)
Hairston, supra, 174 Cal.App.4th at page 238, found that "[r]egarding section 148, the Legislature has said otherwise" in section 148, subdivision (e). --------
We reject defendant's arguments because they ignore the fact that in this case defendant violated the gravamen of section 69 more than once. Moreover, even if defendant's conduct could be perceived as one act, multiple convictions for multiple victims would be proper. This is because, as noted above, the gravamen of his section 69 offenses is the use of force and violence against the persons of the individual officers, thereby falling within Hairston's rule of when a defendant may be convicted of multiple counts of violating the same statute.
III
DISPOSITION
The judgment is affirmed.
MOORE, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.