Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County No. RIF125392, Patrick F. Magers, Judge.
Mark S. Devore, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr. and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gaut, J.
Defendant was convicted of battery upon a peace officer causing injury (Pen. Code, § 243, subd. (c)(2)), and resisting an executive officer (Pen. Code, § 69) following a jury trial, and was sentenced to an aggregate term of five years in state prison. He appeals, challenging the sufficiency of the evidence to support the jury’s findings that (1) the officers were in the “lawful performance of [their] duties” as to both counts of conviction, and (2) the injury alleged in the battery count required “professional medical treatment.” We affirm.
BACKGROUND
Prior to August 7, 2005, John Houston, one of defendant’s two brothers-in-law, contacted the sheriff’s department for assistance in keeping the peace because defendant was in violation of a restraining order prohibiting defendant from going near his mother’s residence. Houston and Malcolm Chambers, defendant’s other brother-in-law, were aware defendant had just been released from prison and that defendant would be going to his mother’s residence. Houston and Chambers were at the home of defendant’s mother, helping her move her belongings into storage. Defendant was known to act unpredictably, have a history of mental illness, and to carry a gun. Houston considered defendant a threat to his family.
Prior to the arrival of the sheriff’s deputies, Chambers showed defendant a copy of the restraining order, and informed defendant that law enforcement had been contacted because he was in violation of the order. Chambers gave defendant money and told him to leave until they had finished moving the mother’s belongings. Defendant left to get something to eat from a store. The sheriff’s deputies, Brown and Mooney, arrived at the residence of defendant’s mother, were shown a copy of the restraining order by Houston, and told that defendant was known to carry a gun. The deputies remained for approximately a half hour to see if defendant returned, and then left.
The deputies decided to check the area prior to leaving. While conducting the area check in their patrol car, they saw defendant walking. The deputies instructed defendant to stop so they could investigate the reported violation of the restraining order. Defendant was wearing a baggy T-shirt, and reached for his waistband, where the deputies noticed a bulge, believed to be a handgun. Defendant started acting strangely and took off running, back in the direction of his mother’s house. As he ran, defendant stated that the deputies had better shoot him or he would kill them.
The two deputies pursued defendant. During the chase, defendant went over a fence and into a neighbor’s backyard, where the deputies lost sight of him for approximately 30 seconds as they followed him into the backyard. The deputies next saw defendant atop a block wall, which he jumped over. Defendant was next seen in the street, running toward his mother’s house, screaming that he wanted to be shot and that he had a gun.
The deputies and the brothers-in-law converged on defendant in the street. While he was running, defendant told the deputies to just shoot him, that he had insurance for his children. The deputies and the brothers-in-law all told defendant to stop, but defendant continued to run. Eventually, he went down to his knees, screaming at them to “just shoot me,” and that he had a gun. All four pursuers repeatedly told defendant to get down and put his hands up, but defendant got up and started to run again. Chambers grabbed defendant’s shirt to prevent him from getting away, as defendant continued to say he had a gun and begged Chambers to shoot him. Defendant fidgeted with his waistband, although no gun was actually observed.
While defendant was slightly off balance from being grabbed by Chambers, but still flailing, Deputy Brown tackled him to the ground. Defendant refused to comply with commands to stop and to put his hands behind his back, and fought with the deputies. He kicked out at Deputy Brown, but missed, then struck Brown twice in the arms with his fists. In tackling defendant, the deputy and defendant fell to the ground and Brown was injured, sustaining a scraped and bruised arm, which bled. Although no one struck defendant, he sustained a bloody nose when tackled. Both defendant and the deputy were examined at the hospital. The deputy’s arm was x-rayed for fractures and sprayed with an antibiotic. There were no fractures. Although the area was searched, a gun was never found.
The defendant was charged with battery on a peace officer (Pen. Code, § 243, subd. (c)(2)), and resisting an executive officer in the performance of his duties. It was further alleged that defendant had previously served a prison term for a prior conviction (Pen. Code, § 667.5, subd. (b)), and that he had previously been convicted of a serious or violent felony within the meaning of the Strikes law. (Pen. Code, §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) He was convicted by a jury of both counts, and he admitted the priors. He was sentenced to five years in state prison and now appeals.
DISCUSSION
1. Standard of Review
In separate arguments, defendant challenges the sufficiency of the evidence to support different elements of the offenses of which he was convicted in this appeal. We therefore apply the well settled substantial evidence rule: We review the entire record to determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [99 S.Ct. 2781, 61 L.Ed.2d 560].) In so doing, we view the evidence in the light most favorable to the judgment and resolve neither credibility issues nor evidentiary conflicts; we look for substantial evidence. (People v. Aguilar (2004) 120 Cal.App.4th 1044, 1048.) To be substantial, evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Cervantes (2001) 26 Cal.4th 860, 866.)
2. There was Substantial Evidence to Support the Findings that the Officer Was in the Lawful Performance of His Duties.
Defendant argues that his convictions on both counts must be reversed due to lack of evidence that the officer was in the “lawful performance of his duties” at the time of defendant’s conduct. Defendant’s argument is grounded on the assertion that at the time defendant ran from the sheriff’s deputies, resisted arrest with force, and committed battery upon Deputy Brown, the officers lacked any reasonable suspicion to believe defendant had been served with the restraining order. We find the evidence sufficient to support the jury’s finding that the officer was in the lawful performance of his duties.
The two crimes charged against defendant — battery against a peace officer engaged in the performance of his duties (Pen. Code, § 243, subd. (c)(2)) — and resisting an executive officer in the performance of his duties (Pen. Code, § 69) — require proof that the peace officer was engaged in the lawful performance of official duties. (People v. Cruz (2008) 44 Cal.4th 636, 673.) When a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed. (People v. Jenkins (2000) 22 Cal.4th 900, 1020.) However, where the facts relating to the question of whether the officer was acting lawfully are disputed, the question of whether the officer was acting lawfully is one for the jury to determine. (Ibid.)
In this case, the evidence demonstrated that the officers were called respecting a violation of a restraining order. The officers requested to see, and were shown, a temporary restraining order prohibiting defendant from being near his mother’s residence. Defendant fled when officers attempted to contact him about the reported offense, there was a bulge in his waistband consistent with carrying a firearm, and he acted strangely, yelling to officers to shoot him or he would kill them. When officers finally caught up with defendant, he continued to resist arrest with force, punching Deputy Brown and attempting to kick him. Deputy Brown had to tackle defendant in order to detain him, causing injuries to the officer.
There is no requirement that officers responding to a report of a violation of a restraining order go to the courthouse to insure it has been personally served, where the paperwork presented includes a proof of service. After seeing the restraining orders, accompanied by a declaration of service, the officers were authorized—even required—to investigate the alleged violation. The jury, having heard the evidence, was properly instructed that it must determine whether the deputies were lawfully performing their duties. There is substantial evidence to support the verdict.
3. There was Substantial Evidence to Support the Finding that the Officer’s Injuries Required Professional Medical Treatment.
Defendant argues there was insufficient evidence to support a conviction of battery on a peace officer because the injuries sustained by the law enforcement officer did not “require” medical treatment because they were too minor. We disagree.
“Injury” means “any physical injury which requires professional medical treatment.” (Pen. Code, § 243, subd. (f)(5).) However, there is no requirement that the victim of the battery actually receive medical treatment. (In re Michael P. (1996) 50 Cal.App.4th 1525, 1528.) “‘A peace officer who obtains “medical treatment” when none is required, has not sustained an “injury” within the meaning of section 243, subdivision (c). And a peace officer who does not obtain “medical treatment” when such treatment is required, has sustained an “injury” within the meaning of section 243, subdivision (c). The test is objective and factual.’” (People v. Hayes (2006) 142 Cal.App.4th 175, 181 [italics in original], quoting People v. Longoria (1995) 34 Cal.App.4th 12, 17.)
In Michael P., supra, a juvenile delinquent kicked a probation officer who was transporting the juvenile to a work detail assignment. The officer complained that after being kicked, he was sore in the chest and chin but he did not report the injuries. (In re Michael P., supra, 50 Cal.App.4th at pp. 1527-1528.) In reversing the judgment, the court noted that there were no bruises, and observed the battery statute in question (Pen. Code, § 243, subd, (c)), measures culpability by the seriousness of the inflicted injury and held the officer’s soreness was not an injury requiring medical treatment. (In re Michael P., supra, at p.1529.) Where no injuries are inflicted, the offense is a misdemeanor. (Pen. Code, § 243, subd. (b).)
Although guilt of the greater battery crime is determined by seriousness of the injury to an officer in the performance of his duties, there are no cases holding that the injuries must be permanent, or severe, or that the injuries constitute “great bodily harm.” To the contrary, in People v. Lara (1994) 30 Cal.App.4th 658, 667, the reviewing court expressly rejected the argument that the definition of injury in the battery on a peace officer statute required serious or great bodily injury.
In Lara, an officer was bruised on both knees, sustained cuts and abrasions on his hands, and was exposed to defendant’s blood. He was examined at an emergency room where medical personnel cleaned his wounds, examined him, treated the bruises on his knees, and gave him supplies for scrubbing himself later. These injuries were held to be sufficient to support the jury verdict of battery against a peace officer causing injury. (People v. Lara, supra, 30 Cal.App.4th at pp. 667-668.)
The facts of this case are quite similar. The officer had bruises on his arms from defendant’s punches, and bloody scrapes on his elbows. Because there was concern over the possibility of fractures, x-rays were taken. Nevertheless, the question whether these injuries were sufficient to satisfy the injury element of the battery against a peace officer statute was a disputed factual question for the jury to determine. Given the bleeding scrape injuries and the possibility of fractures, the verdict is supported by substantial evidence.
Defendant also argues the prosecutor’s closing argument misstated the law in stating that, to convict, the jury need only determine that an injury was suffered, and that the prosecution played to the jury’s passion and sympathy for the victim/officer. However, defendant acknowledges that no objection was made to this argument, so we need not consider it. (People v. Riggs (2008) 44 Cal.4th 248, 298.)
CONCLUSION
The judgment is affirmed.
We concur: McKinster, Acting P. J. King, J.