Opinion
D077038
10-30-2020
The PEOPLE, Plaintiff and Respondent, v. Cody Ashton KRUSE, Defendant and Appellant.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of part I.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
BENKE, Acting P. J. A jury convicted Cody Ashton Kruse of making a criminal threat ( Pen. Code, § 422 ) (count 1), attempting to deter or prevent an executive officer from lawful performance of his duties by means of violence or threat of violence (§ 69) (count 2), and possession of a controlled substance ( Health & Saf. Code, § 11377, subd. (a) ) (count 3). The trial court sentenced Kruse to three years and eight months in state prison, consisting of the upper term of three years on count 1, the upper term of three years on count 2 to run concurrently with the term for count 1, credit for time served on count 3 concurrent with the time imposed on counts 1 and 2, and a consecutive eight-month term on a separate probation revocation case.
All further statutory references are to the Penal Code unless otherwise specified.
Kruse contends the trial court prejudicially erred by (1) allowing the prosecutor to question him on cross-examination about being investigated for killing his former girlfriend's baby, and (2) refusing to instruct the jury on section 148, subdivision (a)(1) (willfully resisting, delaying or obstructing a public officer) as a lesser included offense of section 69 (attempting to deter an executive officer from performing any duty by means of threat or violence). We affirm. FACTS
On the evening of September 11, 2019, Samantha Howell and her friend Clever went to the apartment of Howell's friend Heather Koetter for dinner. Koetter's apartment was a small, one-bedroom, second story apartment in Escondido. Koetter's daughter, who was then seven years old, sometimes lived with Koetter in the apartment and was there with Koetter when Howell and Clever arrived at around 7:15 p.m. Kruse and his friend Boxer arrived at the apartment around 30 minutes later. Kruse and Koetter had been dating for a couple of months. About an hour after everyone arrived, Koetter and Kruse got into an argument about another woman Kruse had been talking to and exchanging text messages with and about Koetter's refusal to let Kruse use her car to give Boxer a ride home. During the argument Koetter asked Kruse to leave the apartment and he left with Boxer.
About 20 minutes later, Kruse returned to the apartment to retrieve his cell phone and backpack. The front door was locked and Koetter did not want to let Kruse back into the apartment. She slid his cell phone under the door but initially did not want to give him his backpack. Kruse looked into the apartment through a window and told Koetter that he just wanted his "stuff." He knocked on the door and the living room window and called out Howell's name. Howell told Koetter, "Heather, just give him his stuff. We'll get it over with. We'll give it back to him. We'll be done with it."
A minute or two later, Koetter decided to give Kruse his backpack. When she opened the door to hand it to him, he shoved his way inside the apartment and sat on the couch. Koetter was upset. She yelled and screamed at Kruse and told him he had to leave, and she grabbed his hands and tried to pull him off of the couch.
Howell went in and out of the apartment during the fight. At one point she entered the apartment and saw Koetter on top of Kruse with her hands around his neck, squeezing him and telling him he needed to "get the fuck out." Kruse remained on the couch and laughed. He said to Koetter, "I'm not going anywhere. I'm not leaving." When Koetter was choking Kruse, Howell tried to pull her off of him because she saw that his face was turning red. Howell repeatedly asked Kruse to leave but he told her he was not going anywhere or ignored her.
An hour or more after Kruse returned to the apartment and refused to leave, Howell entered the apartment and became upset when she discovered Kruse had locked himself in the bedroom where Koetter's daughter was sleeping. Koetter was banging on the bedroom door and demanding that Kruse open the door. Howell also banged on the door and then went to the bedroom window outside the apartment and attempted to pull off the screen. A neighbor standing outside the apartment told Howell to stop because Kruse had come out of the bedroom.
Howell testified that she went back inside the apartment and walked up to Kruse. She called him a little bitch, asked him how he dared lock himself in a little girl's bedroom, and told him to get out and leave. Kruse looked at Howell and told her that he was going to put a bullet through her brain and kill her. Kruse sounded angry and upset and was standing "almost nose to nose with [Howell] looking [her] in the eyes" when he made the threat. Howell responded to the threat by saying, "Then do it." She was upset but she responded that way because she did not want to feel like Kruse "was empowered over [her.]" Kruse's threat scared her because she did not know why he refused to leave the apartment, he was bigger than her, she knew he had a criminal record, and he had said earlier that evening that he had a trial going on in a murder case.
After Kruse threatened to kill Howell, she left the apartment and went downstairs, where she called some friends and asked them what she should do. She told neighbors who were standing there that Kruse had threatened her life. She did not call the police, but a neighbor said the police should be called. One of the neighbors, Tremell Foster, handed his cell phone to another neighbor, who used it to call 911. About five or ten minutes after the 911 call was made, Escondido police officers arrived at the scene. Officers entered the apartment where Kruse and Koetter were still fighting and questioned them about what happened. The police arrested Koetter for misdemeanor domestic violence (battery) against Kruse. Officers handcuffed Kruse and detained him outside the apartment where he continuously yelled and screamed at the officers and was uncooperative. At one point he bragged about getting six months in jail for committing a murder. After Koetter was arrested, the police determined Kruse was not a suspect in their crime investigation and released him from the scene. They gave him his backpack and told him to leave.
When Howell saw that officers were arresting Koetter and releasing Kruse, she walked up to Kruse while he was talking to an officer and confronted him. The exchange between them was recorded on a police body-worn camera video that was played for the jury. Howell said to Kruse, "This is all your fault." Kruse responded, "If it was my fault ... why would I be getting let go, bro? ... [I] have a murder case and everything and I'm getting let go. Come on now...." Howell replied, "You're the one who threatened to put a bullet in my brain, you know? You're the one who threatened us." An officer who overheard the conversation asked Howell when Kruse threatened her and she told him that he threatened her "right when [he and Koetter] started fighting." Another officer at the scene then interviewed Howell about Kruse's threat. Howell told the officer that Kruse said to her, "Fuck you. I'm going to put a bullet in your ... brain." Howell said the threat made her immediately fear for her safety and leave the apartment, and that she was afraid of Kruse because he told her he was involved in a murder case, and she believed that he hung out with people who had guns and that he might have guns and could readily carry out his threat. The officer who interviewed Howell determined there was probable cause to arrest Kruse for making the threat. Officer Danny Armenta caught up with Kruse as he was walking away from the apartment building and detained him.
Armenta asked Kruse for permission to search his backpack and Kruse consented. Armenta found a small white plastic bindle containing methamphetamine in a zipper pocket on the right shoulder strap of the backpack. Another officer had searched Kruse's backpack earlier but did not find the methamphetamine. Armenta arrested Kruse for possession of a controlled substance and making a criminal threat. He handcuffed Kruse and placed him in the back of his patrol car to transport him to the police station for processing.
On the way to the police station, Kruse was very agitated and uncooperative. He shouted and yelled at Armenta angrily and stepped on his seat belt to prevent Armenta from fastening it. After Armenta managed to buckle Kruse's seat belt, Kruse was able to reach around and unbuckle it. When they arrived at the police station and stopped in the sallyport, a secured area where officers can remove arrestees from their police vehicles, Kruse made comments to Armenta that Armenta viewed as threats toward him.
The jury viewed a body-worn camera video of Kruse's exchange with Armenta in the sallyport. Kruse said to Armenta, "Please tell me you're going to try to get me out of the holding cell.... Oh, my God. This shit going to be funny as hell. I'm 6 and 0 in the fucking ring. Let's please do this shit." Armenta called for backup officers because he thought that Kruse was threatening him and that there would be a physical fight if he opened the back door to his patrol car to get Kruse out of the back seat. He interpreted Kruse's "6 and 0" reference to mean that Kruse had six wins in the fights he had been in, and he believed Kruse was using the comment as a way to threaten him with physical violence. He interpreted Kruse's saying "Let's do this" to mean Kruse was preparing for a fight and wanted Armenta to physically fight him. Kruse was still agitated and angry and was shouting throughout the entire conversation. Armenta asked Kruse, "Are you ... threatening us or what?" Kruse responded, "I ain't threatening shit, boy." Armenta asked Kruse about his "6 and 0 in the ring" comment and Kruse said, "You got hands–if you got hands, ain't no threat. Run ‘em. Ain't no threat, B. Run ‘em. Oh, no. Shit, I ain't never been knocked down." He added, "Please let's go, bro." Armenta testified that when Kruse stated "if you got hands, ain't no threat," Armenta believed "he was saying if [Armenta] had the skills. It wasn't a threat. He was ready to fight [Armenta]." Armenta interpreted Kruse's saying that he had never been knocked down to mean that in Kruse's past fights, he had never been knocked down or had never lost; Kruse believed he was superior.
After Kruse stated that he wanted the officers to "test that meth" and made comments implying that the methamphetamine found in his backpack was planted, Armenta asked Kruse, "Are you going to fight me if I get you out of that door?" Kruse responded, "I'm not going to fight you. Ain't no fight, was it? That shit wouldn't be fair. Come on, now. Please. Hands behind my back. Please." Armenta testified that he believed that in making those comments, Kruse was saying "it wasn't a threat"–i.e., the fight would not be fair–because he (Kruse) would win.
When two backup officers arrived, Armenta opened the back door of his police vehicle. Kruse initially refused to come out. Armenta testified that Kruse's threats delayed him in the performance of his duty to bring Kruse into a holding cell, where Kruse would be held while Armenta processed paperwork before Kruse was booked into the Vista Detention Facility. Kruse eventually was removed from the vehicle without incident and taken to a holding cell.
At around 3:35 a.m. Armenta was ready to transport Kruse to the jail in Vista. Kruse was lying on a bench in the holding cell. Armenta tapped on the holding cell window and told Kruse it was time to get up, but Kruse did not respond. Armenta called for another officer to assist him because he thought that Kruse might be faking being asleep and, based on Kruse's prior threats of violence, that there might be a physical fight if he went into Kruse's cell alone. Two officers arrived to assist Armenta. Armenta testified that when the other officers arrived at the scene, Kruse suddenly stood up, took his shirt off, and walked to the back of the jail cell. He balled his fists, puffed out his chest, and flexed his "lats" to make himself look bigger.
The jury viewed a body-worn camera video that showed Kruse's actions and statements in the holding cell. Armenta told Kruse he "tested the meth [and] it came out positive." Kruse did not respond. Armenta asked him to get up and Kruse said, "Nah, bro." Armenta asked Kruse to put his hands behind his back and Kruse responded, "Nope, let's go." Armenta said, "All right, so you're gonna fight us, is that what you want to do?" Kruse responded, "Go, let's go." Armenta said, "You want to do that?" Kruse responded, "Let's go." Armenta told Kruse, "I don't want to fight you." Kruse said, "Run it nigga. Run it." Armenta stated, "You, you want to fight us." Kruse responded, "Yup." He then stated, "Positive test, let's run it then."
Armenta repeated to Kruse that he did not want to fight him. Kruse repeated, "Run it then." Armenta said, "Okay[,]" and Kruse said, "Pop the door, bro. Pop the door." Armenta said, "No, you gotta, you gotta get on the ground." Kruse responded, "Let's go." Armenta told Kruse two more times to get on the ground and Kruse refused. Kruse accused the officers of planting the methamphetamine found in his backpack and continued to argue with them and refuse to comply with their requests to get on the ground. Eventually, Armenta used pepper spray on Kruse and removed him from the holding cell. Armenta then transported Kruse to the Vista Detention Facility. Kruse was extremely angry the entire ride. He continuously kicked the car doors and stomped on the floorboards.
Armenta testified that Kruse's demeanor inside the holding cell was angry, very agitated, confrontational, and combative. His challenging Armenta to a fight deterred Armenta from performing his duty to place Kruse in handcuffs and transport him to the Vista Detention Facility for booking.
Kruse testified at trial that when he returned to Koetter's apartment on the night of the dinner party to get his cell phone and backpack, Koetter gave him the phone but would not let him come inside to get his backpack. He knocked on the window and asked Howell to give him his backpack, and Howell asked Koetter to give him the backpack so he could leave. Koetter eventually opened the door and gave Kruse his backpack. They were talking at the door and Kruse walked into the apartment. He did not shove his way in. Kruse testified that he did not leave the apartment because Koetter was sad and he did not want to leave her feeling sad and that he did not care for her.
Kruse later testified that when he was standing at the doorway talking to Koetter, Koetter and Howell both hit him and started to push him out the door. He explained that he was standing at the doorway "probably just a foot inside," and Koetter was standing at the door yelling at him and calling him a liar. Howell was pacing in the background. When Koetter started hitting him, Howell walked up and hit him too, and they both tried to push him out the door. Howell hit him in the face with a closed fist. Kruse did not hit either Koetter or Howell. Koetter's neighbor Tremell Foster appeared outside the door and got in between Kruse and the women, stating that he was not going to let them beat up his friend. Kruse then went inside and sat on the couch. Foster told Kruse that he (Kruse) should go, but Kruse stayed because he wanted to talk to Koetter and "clear things up with her."
Kruse testified that when he sat on the couch, Koetter started hitting him repeatedly in the face as he asked her to calm down and talk to him. At one point she grabbed her hand in pain from hitting him. Kruse got off the couch, went to the freezer, got an ice pack, and put it on her hand. Koetter was starting to calm down until the neighbor who called the police opened the door and suggested that Kruse leave immediately to avoid getting arrested. Koetter then hit Kruse with the ice pack and started choking him. When Howell pulled Koetter off of Kruse, Kruse went into the bedroom and locked the door.
Kruse testified that he went into the bedroom "to diffuse the situation" and let Howell talk to Koetter, and to make sure Koetter's daughter was all right. He stayed in the bedroom about five or six minutes and opened the door when Foster knocked on it. When he came out, he went into the bathroom and Koetter followed him. Kruse sat on the closed toilet with his head in his hands as Koetter stood next to him yelling and crying. Kruse denied that he ever told Howell he was going to put a bullet in her brain and kill her or that he otherwise threatened her. When asked about his reference to a murder case that evening, Kruse testified that he was talking to his friend Boxer about a 2013 case where they could have been tried for attempted murder but were not, and Howell may have overheard that conversation.
Kruse testified that he did not put any methamphetamine in the strap of his backpack the night of the incident and was unaware there was any methamphetamine in his backpack. He thought the officers might have planted the methamphetamine.
Kruse testified that he did not threaten Officer Armenta at the police station sallyport and he did not want to fight Armenta. He intended to communicate to Armenta that a fight would not be fair because his (Kruse's) hands were behind his back. When Armenta woke up Kruse in the holding cell, Kruse heard him say that force was going to be used against him, so Kruse took off his shirt and walked to the back of the cell to brace himself against the use of force. He took his shirt off because he had been sleeping with his arms inside the shirt to stay warm in the cold cell, and taking the shirt off was the easiest way to put it back on. He did not remove his shirt to threaten Armenta.
When he said "Let's go" to Armenta, he meant that he was ready to be transported. He testified that when Armenta asked if he wanted to fight the officers he answered "Yup" because he was not really hearing Armenta and "was just yelling things back" and "answering questions that [Armenta] had asked prior." Armenta asked multiple questions and Kruse "was saying yep to some, no to others, and [he] wasn't really hearing each question individually." He could not hear well because the holding cell had an echo and he and Armenta were yelling at each other.
DISCUSSION
I. Cross-Examination of Kruse About Having Been Investigated for Killing His Girlfriend's Baby
See footnote *, ante .
II. Section 148, Subdivision (a)(1) as a Lesser Included Offense of Section 69
Kruse contends that the court prejudicially erred in refusing to instruct the jury on section 148, subdivision (a)(1) (hereafter section 148(a)(1)) as a lesser included offense of section 69. We conclude the court was not required to give the requested lesser included offense instruction under the circumstances of this case. As we will explain, section 69 can be violated in two different ways, and section 148(a)(1) is a lesser included offense of one way of violating section 69, but is not a lesser included offense of the other way. Because the jury was instructed only on the way of violating section 69 that does not necessarily include a violation of section 148(a)(1), the court was not required to instruct on section 148(a)(1) as a lesser included offense of section 69.
Background
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 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, 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 court instructed the jury on the section 69 count as follows: "The defendant is charged in Count 2 with trying to deter an executive officer from performing that officer's duty in violation of Penal Code Section 69. This is CALCRIM 2651. To prove the defendant is guilty of this crime, the People have to prove three elements. No. 1, the defendant willfully and unlawfully used violence or threats of violence to try and prevent or deter an executive officer from performing an officer's lawful duty; Two, when the defendant acted, he intended to prevent or deter the executive officer from performing the officer's lawful duty; [a]nd [T]hree, when the defendant acted, he knew the person was an executive officer."
When counsel and the court were discussing jury instructions, Kruse's counsel requested an instruction on section 148(a)(1) as a lesser included offense of section 69. Section 148(a)(1) provides: "Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."
The court denied the request to instruct on section 148(a)(1) based on People v. Smith (2013) 57 Cal.4th 232, 159 Cal.Rptr.3d 57, 303 P.3d 368 ( Smith ). The court stated that the California Supreme Court in Smith held that the offense described in section 148 is not a lesser included offense of section 69. Defense counsel then asked the court to instruct on section 148 as a lesser related offense of section 69, and the court denied that request. Although the trial court's view of the holding in Smith was not entirely correct, we conclude the court correctly concluded that it was not required to instruct the jury on section 148(a)(1) as a lesser included offense of section 69.
Smith
The Smith court addressed the specific issue of whether section 148(a)(1), is a lesser included offense of section 69. Regarding the trial court's general duty to instruct on a lesser included offense, Smith noted: " ‘It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case. [Citations.]’ [Citation.] ‘That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.’ " ( Smith, supra , 57 Cal.4th at p. 239, 159 Cal.Rptr.3d 57, 303 P.3d 368.)
" ‘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....’ 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.’ "[Citation.]
"For purposes of determining a 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 pp. 239-240, 159 Cal.Rptr.3d 57, 303 P.3d 368.)
The Smith court observed that "[s]ection 148(a)(1) is not a lesser included offense of section 69 based on the statutory elements of each crime." ( Smith, supra , 57 Cal.4th at p. 240, 159 Cal.Rptr.3d 57, 303 P.3d 368.) Smith "explained that section 69 ‘sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.’ "[Citation.]
"The first way of violating section 69 ‘encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future.’ [Citation.] The actual use of force or violence is not required. [Citation.] Further, ‘the statutory language [of the first clause of section 69 ] does not require that the officer be engaged in the performance of his or her duties at the time the threat is made.... Thus, for example, a person who telephones an off-duty officer at his or her home and threatens to kill the officer if he or she continues to pursue a lawful investigation the following day or week may be convicted of the first type of offense under section 69, even though the officer was not engaged in the performance of his or her duties at the time the threat was made.’ [Citation.]
"The second way of violating section 69 expressly requires that the defendant resist the officer ‘by the use of force or violence,’ and it further requires that the officer was acting lawfully at the time of the offense. [Citation.] [¶] Section 148(a)(1) is similar to the second way of violating section 69 but is clearly different from the first way of violating section 69. Section 148(a)(1) says: ‘Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.’ "
"A person who violates section 69 in the second way—by ‘knowingly resist[ing], by the use of force or violence, such officer, in the performance of his duty’—also necessarily violates section 148(a)(1) by ‘willfully resist[ing] ... any public officer ... in the discharge or attempt to discharge any duty of his or her office or employment.’ [Citation.] But it is possible to violate section 69 in the first way—by attempting, through threat or violence, to deter or prevent an executive officer from performing a duty—without also violating section 148(a)(1). 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). Accordingly, section 148(a)(1) is not a lesser included offense of section 69 based on the statutory elements of each offense." ( Smith, supra , 57 Cal.4th at pp. 240-241, 159 Cal.Rptr.3d 57, 303 P.3d 368.)
However, the Smith court noted that in determining whether there is a duty to instruct the jury on a lesser included offense, courts "also consider the language of the accusatory pleading." ( Smith, supra , 57 Cal.4th at p. 242, 159 Cal.Rptr.3d 57, 303 P.3d 368.) Smith observed that "[i]f the accusatory pleading in [the present] case had charged only the first way of violating section 69—i.e., that defendant attempted, through threat or violence, to deter or prevent an executive officer from performing a duty—section 148(a)(1) would not have been a necessarily included offense." However, the amended information "alleged in both counts that defendant violated section 69 not only in the first way but also in the second way by forcibly resisting an officer." ( Smith , at pp. 242-243, 159 Cal.Rptr.3d 57, 303 P.3d 368.) Because it is not possible to violate section 69 in the second way without also violating section 148(a), "section 148(a)(1) was a necessarily included lesser offense of section 69 as alleged in the amended information." ( Smith , at p. 243, 159 Cal.Rptr.3d 57, 303 P.3d 368.)
The Smith court concluded: "The prosecution may, of course, choose to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense. But so long as the prosecution has chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense, and so long as there is substantial evidence that the defendant committed the lesser offense without also committing the greater, the trial court must instruct on the lesser included offense." ( Smith, supra , 57 Cal.4th at p. 244, 159 Cal.Rptr.3d 57, 303 P.3d 368.)
The Smith court "summarize[d] the trial court's instructional duty as follows: Where an accusatory pleading alleges both ways of violating section 69, the trial court should instruct the jury that if it finds beyond a reasonable doubt that a defendant committed either way of violating section 69, it should find the defendant guilty of that crime. If not, the jury may return a verdict on the lesser offense of section 148(a)(1) so long as there is substantial evidence to conclude that the defendant violated section 148(a)(1) without also violating section 69." ( Smith, supra , 57 Cal.4th at pp. 244-245, 159 Cal.Rptr.3d 57, 303 P.3d 368.)
Kruse contends that under Smith , the trial court was required to instruct on section 148(a)(1) as a lesser included offense of section 69 because the accusatory pleading in this case charged him with both ways of violating section 69. We do not read Smith as requiring the trial court in the present case to instruct the jury on section 148(a)(1) as a lesser included offense of section 69. In Smith , the prosecution not only alleged both ways of violating section 69 in the accusatory pleading, at trial the court instructed the jury on both ways of violating section 69. ( Smith, supra , 57 Cal.4th at p. 238, 159 Cal.Rptr.3d 57, 303 P.3d 368.) Here, the court instructed the jury only on the first way of violating section 69 because the prosecution chose to pursue a conviction only under the first way at trial. When the parties and the court were going over jury instructions, the prosecutor requested CALCRIM No. 2651, which instructs on the first way to violate section 69 ; the prosecutor did not ask for CALCRIM No. 2652, which instructs on the second way to violate the statute. The prosecutor submitted a proposed instruction that referenced CALCRIM No. 2652 and the prosecutor stated she wanted to change it to CALCRIM No. 2651. Defense counsel informed the court that she was satisfied with that change.
Smith did not consider whether the court must instruct on section 148(a)(1) as a lesser included offense where, as here, the jury is instructed only on the way of committing section 69 that does not necessarily include the lesser offense under section 148(a)(1). The Smith court observed that "[w]here an accusatory pleading alleges both ways of violating section 69, the trial court should instruct the jury that if it finds beyond a reasonable doubt that a defendant committed either way of violating section 69, it should find the defendant guilty of that crime. " ( Smith, supra , at pp. 244-245, 159 Cal.Rptr.3d 57, 303 P.3d 368, italics added.)
The italicized language shows that Smith 's holding is based on the assumption that where an accusatory pleading alleges both ways of violating section 69, the jury will be instructed on both ways at trial, which in turn is based on the assumption that the prosecution at trial will attempt to prove the defendant violated the statute in both ways. Smith did not address the propriety of giving a lesser included offense instruction where the prosecution elects to pursue only one of two ways of committing an offense at trial, the jury is instructed only on that way, and that way does not necessarily include a lesser offense. "[I]t is axiomatic that cases are not authority for propositions not considered." ( People v. Alvarez (2002) 27 Cal.4th 1161, 1176, 119 Cal.Rptr.2d 903, 46 P.3d 372.)
Instructing on only one way of violating section 69 is effectively the same as pleading only one way; the other way of violating the statute is simply not at issue at trial. Thus, the prosecutor's election in the present case to pursue a conviction of only the first way of violating section 69 was, in effect, an amendment of the accusatory pleading. Because the prosecutor's election effectively amended the charges to eliminate the second way of violating section 69 and the jury was not instructed on the second way of violating section 69, the trial court properly denied Kruse's request for an instruction on section 148(a)(1) as a lesser included offense of section 69. There was no reason for the trial court to instruct on a lesser included offense that is not necessarily included in the only way of violating section 69 that the prosecution sought to prove at trial and as to which the court instructed the jury.
There is language in Smith that suggests the court's analysis would have been different if the jury in Smith had not been instructed on both ways of violating section 69. As noted, the Smith court observed that if the accusatory pleading in that case "had charged only the first way of violating section 69—i.e., that defendant attempted, through threat or violence, to deter or prevent an executive officer from performing a duty—section 148(a)(1) would not have been a necessarily included offense." ( Smith, supra , 57 Cal.4th at p. 242, 159 Cal.Rptr.3d 57, 303 P.3d 368.) The same analysis logically applies when the prosecution pursues a conviction and requests jury instructions only on the first way of violating section 69.
The Smith court reiterated that "[t]he prosecution may, of course, choose to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense." ( Smith, supra , 57 Cal.4th at p. 244, 159 Cal.Rptr.3d 57, 303 P.3d 368.) Likewise, the prosecution may choose to only pursue a conviction for commission of the greater offense in a way that does not necessarily include a lesser offense and, at the prosecution's request, the court may instruct the jury only on that way of committing the greater offense. Under the reasoning of Smith , only where the prosecution has both chosen to allege a way of committing the greater offense that necessarily subsumes a lesser offense and pursues a conviction of that way of committing the greater offense at trial should the trial court be required to instruct on the lesser included offense, where there is substantial evidence that the defendant committed the lesser offense without also committing the greater. The prosecution's choice to only seek a conviction of the first way of violating section 69 and to request a jury instruction only on that way is functionally equivalent to choosing "to file an accusatory pleading that does not allege the commission of a greater offense in a way that necessarily subsumes a lesser offense." ( Smith, supra , 57 Cal.4th at p. 244, 159 Cal.Rptr.3d 57, 303 P.3d 368.)
Although we have not found a published California case that directly addresses the issue of whether a trial court must instruct on section 148(a)(1) as a lesser included offense of section 69 when the jury is instructed only on the first way of violating section 69, the issue was addressed in a federal case. In Lewis v. Arnold (C.D. Cal., Oct. 17, 2019, No. CV 16-5714-CAS (JEM)) 2019 WL 6188624 ( Lewis ), the defendant was convicted of a violation of section 69 and other crimes and filed a petition for writ of habeas corpus in federal court. ( Lewis , at p. *1 ) Among other claims, defendant contended his due process rights were violated when the trial court refused to instruct the jury regarding the lesser included offense of misdemeanor resisting an officer in violation of section 148(a)(1). ( Lewis , at pp. *4, *12.) Although the accusatory pleading alleged both ways of violating section 69, as in the present case, the prosecutor during the jury instruction conference at trial requested only CALCRIM No. 2651, which sets forth the first way of violating section 69, and did not ask for CALCRIM No. 2652, which sets forth the second way of violating section 69. Defense counsel requested a jury instruction on section 148(a)(1) as a lesser included offense of section 69, and the trial court denied the request on the ground that a violation of section 148(a)(1) was not a lesser included offense. ( Lewis , at p. *12.)
The specified page numbers for Lewis are Westlaw page numbers.
The Lewis court concluded the defendant's claim failed on the merits in part because section 148(a)(1) "was not a lesser included offense of the charged Section 69 offense under the theory pursued at trial. Although the information alleged both ways of violating Section 69 and was never amended ..., the prosecutor submitted and the jury received only an instruction regarding the first way of violating Section 69.... Misdemeanor resisting under Section 148 is not a lesser included offense of the first way of violating Section 69. [Citation.] It [is a] lesser included offense of the second way, ... but [defendant's] jury was never instructed regarding the second way. " ( Lewis, supra , 2019 WL 6188624, at p. *13, italics added.)
The Lewis court noted that on direct appeal the Court of Appeal (in a nonpublished opinion) found that "although the information alleged both ways of violating Section 69, ‘the prosecutor effectively abandoned that approach when he requested submission of only CALCRIM No. 2651.’ " (Lewis, supra , 2019 WL 6188624, at p. *12.)
In sum, we conclude that the rationale for a lesser included offense instruction does not apply when the lesser offense is not necessarily included in the only theory of the greater offense pursued by the prosecution and instructed to the jury at trial. When a lesser included offense instruction is required under only one of two ways of violating a penal statute alleged in the accusatory pleading and the jury is instructed only on the way of violating the statute that does not require a lesser included offense instruction, the accusatory pleading should not control the trial court's determination of whether a lesser included offense instruction is required. In the present case, because the prosecution elected to seek to convict Kruse of violating only the first way of violating section 69 and the jury was instructed only on that way, and was not instructed on the second way of violating section 69, the trial court properly denied Kruse's request to instruct on section 148(a)(1) as a lesser included offense of section 69.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
DATO, J.
GUERRERO, J.