Cindi B. Mishkin, 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, Eric A. Swenson and Felicity Senoski, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. JCF37530, JCF37353) APPEAL from a judgment of the Superior Court of Imperial County, Marco D. Nunez, Judge. Affirmed as modified, with directions. Cindi B. Mishkin, 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, Eric A. Swenson and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
When defendant Michael Rogers caused a disturbance in a fast food restaurant and refused the manager's requests to leave, two police officers forcibly removed him. Rogers physically resisted the officers, one of whom sustained injuries as a result. Rogers was charged with one count of felony battery with injury on a peace officer (Pen. Code, § 243, subd. (c)(2)), and two counts of resisting an executive officer (§ 69, subd. (a); hereafter, § 69(a)). The jury found Rogers guilty of a lesser-included misdemeanor battery offense, and guilty of both resisting counts. The trial court sentenced Rogers to a total prison term of five years four months, which included consecutive terms on the resisting convictions, and a concurrent term on the battery conviction.
Further statutory references are to the Penal Code.
On appeal, Rogers contends the trial court erred by not sua sponte instructing the jury regarding misdemeanor resisting a peace officer (§ 148, subd. (a)(1); hereafter, § 148(a)(1)) as a lesser included offense of the felony resisting counts (§ 69(a)). Applying the accusatory pleading test to the facts alleged in the operative information, we agree resisting under section 148(a)(1) is a lesser included offense of resisting under section 69(a) as alleged here, but conclude the trial court had no duty to instruct on the lesser included offense because there was no substantial evidence showing Rogers had committed only the lesser offense without also committing the greater offense.
Rogers also contends the trial court erred by not staying execution of the sentence on his battery conviction as impermissibly duplicative of the sentence imposed on one of his resisting convictions. (§ 654.) We agree, and modify the sentence accordingly. As so modified, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The Prosecution Case
Ray explained that in the Brawley Police Department, Agent is a promotional position "one step below sergeant," and "similar to what other agencies refer to as a corporal."
On August 2, 2016, Agent Ray was on patrol in Brawley when he was dispatched to a McDonald's restaurant where a suspect reportedly "was outburst yelling, screaming, . . . scaring other patrons inside the restaurant," and refusing to leave despite repeated requests to do so by restaurant staff.
When Agent Ray arrived at the restaurant, Brawley Police Sergeant Perry Monita was waiting outside. The officers entered together and approached the suspect (later identified as Rogers), who was seated alone at a table. Both officers wore "standard-issue" police uniforms, and Ray identified himself to Rogers as a member of the Brawley Police Department. Rogers looked at both officers, "then put his head face down to his folded arms. [¶] . . . [¶] Once he put his head down, his whole body became rigid, tense, like he was flexing his muscles." Monita stayed with Rogers, while Ray went to speak with the restaurant manager.
The manager asked that the police issue Rogers "a trespass advisement" requiring him to stay away from the business for 30 days. If Rogers complied, there would be no further consequences; if he did not comply, he would be subject to arrest. Agent Ray returned to Rogers's table and gave him the advisement, explaining that "[a]ll . . . he had to do was get up and leave on his own, and there would be no additional consequences . . . ." Rogers did not leave. The officers repeated the advisement and spent about 10 or 15 minutes trying to persuade Rogers to leave peacefully and voluntarily. Rogers remained seated, occasionally yelling and raising his fists and slamming them on the table.
Agent Ray gave Rogers "one last chance to leave" voluntarily. When Rogers refused, the officers decided to "escort him out." Ray and Monita each took hold of one of Rogers's arms and hands to help him get up. Rogers "began resisting immediately," "almost like a fight was about to happen"; he was " really tense [and] tried to immediately pull away." As the officers escorted Rogers to the door, "[h]e was continuing trying to twist and pull away" and "was almost trying to sit down as [they] were walking" such that the officers "almost . . . had to carry him a little bit."
Once outside, Rogers slammed his body against the officers, and tried to kick and pull away from them. The officers cuffed Rogers's hands behind his back and brought him to Agent Ray's patrol vehicle. When they opened the vehicle door, Rogers "immediately began screaming about snakes and a victim of something that was in the car, and then increased his level of resistance in violence towards" the officers, including by wrapping his legs around one of Monita's legs. The officers called for backup.
When Rogers released Sergeant Monita's leg, Agent Ray prepared to take Rogers to the ground for greater control. As Ray attempted a takedown maneuver, Rogers grabbed Ray's left index finger and began "wrenching on it, twisting it, trying to move it in directions that it shouldn't be going." Ray's finger dislocated at the middle knuckle, but he was able to "pop it back into place."
Agent Ray did not execute the takedown maneuver as planned, and he landed partially on his left shoulder in the process. He immediately felt pain. When backup arrived, the officers were able to place ankle restraints on Rogers and lift him into the back of a patrol vehicle. Throughout the entire ordeal, Ray and Monita repeatedly instructed Rogers to "stop resisting."
The officers took Rogers to the hospital to make sure he had not been injured during the scuffle. Rogers continued resisting until hospital staff sedated him. While at the hospital, Agent Ray asked for tape and ice for his finger. He treated himself and returned to patrol duty because the department was shorthanded.
After about one week, when the pain in Agent Ray's shoulder still had not subsided, he consulted a physician and was referred to an orthopedic surgeon. The surgeon diagnosed Ray with a torn labrum in his left shoulder, which ultimately required three surgeries. As of trial, Ray still had not fully recovered from the most recent surgery, and the police department had reassigned him to the records department because he was unable to work patrol. Ray testified he had no issues with his shoulder before the incident with Rogers, and he "ha[d] no doubt it is related to that."
The Defense Case
The defense called no witnesses at trial.
In his closing argument, Rogers's trial counsel urged the jury to acquit Rogers of battery with injury on a peace officer (§ 243, subd. (c)(2)), reasoning that "both times that Agent Ray got hurt . . . Agent Ray initiated the contact." (Italics added.) But counsel added that—based on Ray's testimony—counsel "would understand a verdict of guilty" on the lesser included offense of misdemeanor battery (without injury) on a peace officer (§ 243, subd. (b)).
Rogers's trial counsel essentially conceded the resisting counts: "[A]gain, from the testimony of Agent Ray, I understand, I appreciate there was evidence presented to you all that you can find Mr. Rogers responsible for that conduct. I understand that you can find him guilty of those charges."
Charges, Jury Verdicts, and Sentence
Rogers was initially charged with three misdemeanors: battery with injury on a peace officer (§ 243, subd. (c)(2)); resisting a peace officer (§ 148(a)(1)); and trespass (§ 602, subd. (o)). However, once the full extent of Ray's injuries became known, the prosecutor filed a first amended information alleging three felonies: one count of battery with injury on a peace officer (§ 243, subd. (c)(2)), with a great-bodily-injury enhancement allegation (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)); and two counts of resisting an executive officer (§ 69(a)—one count each as to Agent Ray and Sergeant Monita). The charging document further alleged Rogers had suffered one strike prior. (§§ 667, subd. (d), 1170.12, subd. (b).)
After hearing less than four hours of testimony from Agent Ray and his orthopedic surgeon, the jury deliberated for about three and a half hours before returning verdicts. The jury found Rogers not guilty of felony assault with injury on a peace officer, but guilty of the lesser included misdemeanor of battery on a peace officer. The jury also found him guilty on both counts of felony resisting an executive officer.
In a bifurcated proceeding, the trial court found true the allegation that Rogers had suffered a strike prior for assault with a firearm.
The trial court sentenced Rogers to prison for a total term of five years four months, consisting of the following: a primary term of four years on the resisting conviction as to Agent Ray (the midterm of two years, doubled for the strike prior); a consecutive term of 16 months on the resisting conviction as to Sergeant Monita (one-third of the two-year midterm, or eight months, doubled for the strike prior); and a concurrent term of 364 days on the battery conviction.
I. No Instructional Error
Rogers contends the trial court erred by failing to instruct the jury sua sponte regarding misdemeanor resisting a peace officer (§ 148(a)(1)) as a lesser included offense of felony resisting an executive officer (§ 69(a)). We disagree.
A. Relevant Legal Principles
1. Principles Regarding Lesser Included Offenses
" 'California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense "necessarily included" in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.' [Citation.] '[T]he rule prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. . . . Thus, 'a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included offense which find substantial support in the evidence. On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support.' " (People v. Smith (2013) 57 Cal.4th 232, 239-240 (Smith).) In this context, "substantial evidence" is not " ' " 'any evidence, no matter how weak' " ' "; it is " 'evidence that a reasonable jury could find persuasive.' " (People v. Williams (2015) 61 Cal.4th 1244, 1263.)
In determining the scope of the trial court's instructional duties, " 'a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.' " (Smith, supra, 57 Cal.4th at p. 240, italics added; see People v. Gonzalez (2018) 5 Cal.5th 186, 197 [there are "two tests for whether a crime is a lesser included offense of a greater offense: the elements test and the accusatory pleading test."].)
2. Section 148(a)(1) as a Lesser Included Offense of Section 69(a)
Section 69(a) imposes criminal liability on "[e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty . . . ." There are two ways the statute can be violated. (Smith, supra, 57 Cal.4th at p. 240.) " 'The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law . . . .' " (Ibid.; see People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1418 [referring to the first way as " ' "attempting to deter" ' "].) Although this violation is a specific intent crime (People v. Orloff (2016) 2 Cal.App.5th 947, 952), it requires neither the defendant's actual use of force nor the officer's present performance of his or her duties (Smith, at p. 240). The second way of violating section 69(a) " 'is resisting by force or violence an officer in the performance of his or her duty.' " (Smith, at p. 240; Rasmussen, at p. 1418 [referring to the second way as " ' " actually resisting an officer" ' "].) This way "expressly requires that the defendant resist the officer 'by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense." (Smith, at p. 241.) This violation is a general intent crime. (Rasmussen, at pp. 1420-1421.)
Section 148(a)(1) imposes criminal liability on "[e]very person who willfully resists, delays, or obstructs any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . ." A violation of this section requires "the officer's present performance of duty." (People v. Lacefield (2007) 157 Cal.App.4th 249, 257; see Smith, supra, 57 Cal.4th at p. 241.)
In Smith, supra, 57 Cal.4th 232, the California Supreme Court held section 148(a)(1) is not a lesser included offense of section 69(a) under the elements test, but it may be one under the accusatory pleading test. The court explained the elements test is not satisfied because "it is possible to violate section 69 in the first way—by attempting, through threat or violence, to deter or prevent an executive officer from performing a duty—without also violating section 148(a)(1). A person who threatens an executive officer in an attempt to deter the officer from performing a duty 'at some time in the future' [citation] does not necessarily willfully resist that officer in the discharge or attempt to discharge his or her duty under section 148(a)(1)." (Smith, at p. 241.)
Smith, supra, 57 Cal.4th 232 and earlier cases refer to section 69(a) simply as "section 69" because the statute then consisted of only one paragraph with no subdivisions. (See Stats. 2015, ch. 177 (S.B.411), § 1, eff. Jan. 1, 2016.) The Legislature later added to the statute in ways not relevant here, other than that the original substance of section 69 as discussed in Smith was placed into a new subdivision (a) without substantive change. (See Stats. 2015, ch. 177 (S.B.411), § 1, eff. Jan. 1, 2016.)
But under the accusatory pleading test, section 148(a)(1) is a lesser included offense if the charging document alleges the defendant violated section 69(a) in both ways. (See Smith, supra, 57 Cal.4th at p. 242.) This is because an accused cannot violate section 69(a) in the second way—by forcefully resisting arrest—without also violating section 148(a)(1)—by resisting arrest. (Smith, at p. 243 ["it is not possible to violate section 69 in th[e] second way without also violating section 148(a)(1)"]; see People v. Carrasco (2008) 163 Cal.App.4th 978, 985 (Carrasco) ["an accused cannot have resisted arrest forcefully without also having resisted arrest"].)
Thus, the Smith court concluded that where an accusatory pleading alleges both ways of violating section 69(a), the trial court should instruct the jury on section 148(a)(1) as a lesser included offense "so long as there is substantial evidence to conclude that the defendant violated section 148(a)(1) without also violating section 69." (Smith, supra, 57 Cal.4th at pp. 244-245, italics added.) The Smith court found no instructional error because the record showed the "defendant physically resisted and punched" a jail guard on one occasion, and "physically resisted . . . guards" on another occasion. (Smith, at p. 245.) Therefore, the court concluded, the defendant "was either guilty or not guilty of resisting the executive officers by the use of force or violence in violation of section 69. There was no evidence that [the] defendant committed only the lesser offense of resisting the officers without the use of force or violence in violation of section 148(a)(1)." (Ibid.)
The first amended information alleges Rogers violated section 69 as to Agent Ray as follows: "On or about [August 2, 2016], [Rogers] . . . did  willfully and unlawfully attempt by means of threats and violence to deter and prevent [Ray], who was then and there an executive officer, from performing a duty imposed upon such officer by law, and  did knowingly resist by the use of force and violence said executive officer in the performance of his/her duty." (Italics added.) The parties appropriately agree this charges Rogers with both ways of violating section 69(a). They disagree, however, about whether there is substantial evidence from which to conclude Rogers resisted arrest in violation of section 148(a)(1) without also forcefully resisting in violation of section 69(a). We conclude there is not.
The allegation regarding Rogers's violation as to Sergeant Monita is substantively identical.
Agent Ray was the only trial witness to describe the circumstances of Rogers's arrest. Ray testified that as soon as he and Sergeant Monita attempted to escort Rogers from the McDonald's, Rogers "began resisting immediately" by tensing up, "trying to twist and pull away," "trying to kick" the officers, "attempting to use his body to slam against" the officers, and by wrenching Ray's index finger. This conduct easily constitutes the "force or violence" contemplated by section 69(a). (See People v. Bernal (2013) 222 Cal.App.4th 512, 519 (Bernal) ["force used by a defendant in resisting an officer's attempt to restrain and arrest the defendant is sufficient to support a conviction" under section 69(a)]; Carrasco, supra, 163 Cal.App.4th at pp. 985-986 [only the greater offense was committed where defendant would not remove his hand from a duffle bag, he "had to be physically taken to the ground," and he "failed to comply with several officers' repeated orders to relax and . . . 'stop resisting' "]; Smith, supra, 57 Cal.4th at p. 245 [only the greater offense was committed where the defendant "physically resisted" jail guards].)
In arguing that substantial evidence supported instructing on the lesser included offense, Rogers does not cite Ray's testimony for examples of nonviolent or nonforcible resistance. Instead, he argues the instruction should have been given because the prosecutor initially charged him with the lesser offense, and because the jury convicted him of the lesser included offense of misdemeanor battery on a peace officer instead of felony battery with injury on a peace officer. Neither argument has merit.
First, we fail to see how the offenses with which the prosecutor initially charged Rogers have any bearing on whether substantial evidence adduced at trial indicates Rogers violated section 148(a)(1) but not section 69(a). Rogers cites no authority supporting his contention that allegations may supplant evidence in this context.
Second, the fact the jury convicted Rogers of misdemeanor battery on a peace officer as a lesser included offense of felony battery with injury on a peace officer does not support a finding that Rogers resisted without force or violence. To the contrary, battery—whether or not it results in injury—requires that the defendant use force or violence. (See § 242 ["A battery is any willful and unlawful use of force or violence upon the person of another."], italics added.) The fact the jury implicitly found that Rogers did not inflict any injury on Agent Ray has no bearing on whether Rogers resisted him with force or violence. (See Bernal, supra, 222 Cal.App.4th at p. 520 ["forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer"], italics added.)
In sum, although section 148(a)(1) was a lesser included offense of section 69(a) based on the accusatory pleading test, the trial court was not required to instruct the jury on the lesser offense because no substantial evidence supported the conclusion that Rogers committed only the lesser offense without also committing the greater offense.
II. The Sentence on the Battery Conviction Should Be Stayed Under Section 654
The trial court sentenced Rogers to consecutive four-year and 16-month prison terms on the resisting convictions, and a concurrent 364-day term on the battery conviction. Rogers now contends the court erred by not staying execution of the battery sentence under section 654 as being impermissibly duplicative of the resisting sentence as to Agent Ray. We agree.
Neither Rogers, the prosecutor, the probation officer, nor the trial court appear to have considered at sentencing whether section 654 applied to any of the sentences. We may nevertheless consider the issue. (See People v. McCoy (2012) 208 Cal.App.4th 1333, 1338 ["The failure of defendant to object on this basis in the trial court does not forfeit the issue on appeal."].) --------
Section 654, subdivision (a), states in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The statute, thus, " 'precludes multiple punishments for a single act or indivisible course of conduct.' [Citation.] ' . . . "The proscription against double punishment . . . is applicable where there is a course of conduct which violates more than one statute and comprises an indivisible transaction punishable under more than one statute. . . . The divisibility of a course of conduct depends upon the intent and objective of the actor, and if all the offenses are incident to one objective, the defendant may be punished for any one of them but not for more than one." ' [Citations.] 'On the other hand, if the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citations.] The principal inquiry in each case is whether the defendant's criminal intent and objective were single or multiple. Each case must be determined on its own facts. [Citations.] The question whether the defendant entertained multiple criminal objectives is one of fact for the trial court, and its findings on this question will be upheld on appeal if there is any substantial evidence to support them.' " (People v. Pinon (2016) 6 Cal.App.5th 956, 967-968.)
Both parties cite People v. Martin (2005) 133 Cal.App.4th 776 (Martin), which we find instructive. There, police responded to a spousal battery incident involving the defendant. (Id. at p. 780.) He was initially cooperative when police handcuffed him, but he began resisting as officers escorted him to a patrol vehicle—he "tensed up" and told the officers they would have to shoot him because he was not going to jail. (Ibid.) The defendant then bent forward, prompting one officer to put "him in an arm-bar hold." (Ibid.) The defendant "then jerked his body backwards and wrapped his leg around [the officer]'s leg. [The officer] felt a sharp pain in his left shoulder and something popped." (Ibid.) At that point, another officer took the defendant to the ground, where he "flailed around" and kicked at the legs of two additional officers. (Ibid.) The first officer's shoulder required medical treatment, and he was placed on light duty for several weeks. (Ibid.) The defendant was convicted of spousal battery, resisting an executive officer, and battery with injury on a peace officer. (Ibid.) The trial court imposed three concurrent prison terms, and did not stay execution of any of them under section 654. (Ibid.)
On appeal, the defendant argued the trial court should have stayed execution of the sentence on either the resisting or battery convictions because "both offenses were incident to his sole objective to escape." (Martin, supra, 133 Cal.App.4th 776, 780.) The appellate court agreed: "[The defendant's] sole objective in both resisting arrest and committing battery on a police officer was to free himself. The battery upon the officer does not appear to have been intentional, but merely the result of appellant's physical gyrations aimed at freeing himself. The two offenses occurred, if not concurrently, in close temporal proximity, which although not determinative on the question of whether there was a single objective, is a relevant consideration." (Id. at p. 781.) The court nevertheless affirmed, finding the multiple-victim exception to section 654 applied because the battery conviction was based on the defendant's conduct toward the first officer, whereas the resisting conviction could have been based on his conduct toward any of the three other involved officers. (Martin, at p. 783.)
We agree with Rogers's assertion that, as in Martin, Rogers's "sole objective in both resisting arrest and committing battery on" Agent Ray "was to free himself." (Martin, supra, 133 Cal.App.4th at p. 781.) Rogers consistently resisted Ray and Sergeant Monita from the time they physically engaged him at his table inside the restaurant to the time they finally restrained him and placed him in the patrol vehicle (and beyond). Rogers's battery on Ray occurred sometime during this campaign of resistance.
The Attorney General argues Martin is distinguishable because there the court found the defendant's battery may have occurred unintentionally during the defendant's "physical gyrations aimed at freeing himself" (Martin, supra, 133 Cal.App.4th at p. 781), whereas Rogers "harbored a separate, retaliatory intent to hurt Agent Ray" by intentionally dislocating his finger "because [Rogers] was unsuccessful" in resisting Ray's efforts to arrest him. The record does not support this distinction. Assuming (as the Attorney General does) that the battery conviction was based on dislocating Ray's finger, no substantial evidence would support a finding that Rogers intended to do so apart from his intent and efforts to resist arrest. Rather, the dislocation occurred while Ray was attempting a takedown maneuver because Rogers was still forcefully resisting Ray. The prosecutor acknowledged this in his closing argument:
"When [Rogers] got outside and he saw the police car, he did everything he possibly could to not get into that police car. He became enraged. He kicked. He pulled away. He thrashed about. He tried to body slam. He dislocated a finger. He did not want to get into the patrol car. He did not want to leave McDonald's. He willingly and actively resisted the entire time, and [Agent] Ray suffered the consequences of [Rogers]'s actions."
Because the record does not support the finding that Rogers battered Agent Ray for a purpose other than to resist arrest, Rogers's sentences on these convictions are impermissibly duplicative under section 654. Accordingly, we will modify Rogers's sentence to stay execution of the 364-day sentence on the battery conviction. (See People v. Butler (1996) 43 Cal.App.4th 1224, 1248 ["Where multiple punishment has been improperly imposed, ' . . . the proper procedure is for the reviewing court to modify the sentence to stay imposition of the lesser term. [Citation.]' "].)
Rogers's sentence is modified to stay execution of the sentence imposed on his conviction for battery on a peace officer under section 243, subdivision (b). The trial court is directed to amend the abstract of judgment accordingly, and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
HALLER, J. WE CONCUR: BENKE, Acting P. J. HUFFMAN, J.