Opinion
D072442
08-07-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES SEBASTIAN MCCLURG, Defendant and Appellant.
Law Offices of Jay Temple and Jay Temple for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Kristen Kinnaird Chenelia, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD270706) APPEAL from a judgment of the Superior Court of San Diego County, Runston G. Maino, Judge. Affirmed. Law Offices of Jay Temple and Jay Temple for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Robin Urbanski and Kristen Kinnaird Chenelia, Deputy Attorneys General for Plaintiff and Respondent.
A jury convicted James Sebastian McClurg on one count of resisting an officer. (Pen. Code, § 69, count 1.) McClurg was sentenced to three years formal probation with the requirement he serve 365 days in local custody, with a credit of 225 days for time served. On appeal, McClurg asserts the court made an instructional error in modifying CALCRIM No. 2670 (lawful performance of peace officer's duties), and in failing to instruct on a lesser included offense of simple assault. We conclude there was no prejudicial error, and we affirm the judgment.
All statutory references are to the Penal Code.
FACTUAL BACKGROUND
After an altercation with his mother and two sisters, McClurg was arrested and booked into San Diego Central Jail. The following morning, McClurg had arranged bail and was awaiting his release from custody. He became agitated in the "release tank," where other inmates were also awaiting release, so he was moved to an individual cell. That afternoon, when it was time to release McClurg after he posted bail, a sherriff's deputy approached McClurg's cell and opened the door. At that time, the deputy noticed that McClurg had a blank stare and he was not acting like the same person the deputy had talked to earlier in the day. McClurg became agitated and upset, repeatedly screaming, "How many people got to die?" and used his foot to block the cell doorway, preventing its closure. The deputy suspected McClurg might be under the influence and determined he had to put McClurg in a sobering cell or get him a psychological evaluation. In order to shut the door, the deputy attempted to direct McClurg back into the cell by using his hand to push or nudge McClurg's chest. McClurg resisted the deputy's efforts by "pushing back a little" so the deputy could not close the door, then McClurg used his hands to shove the deputy to the side.
When McClurg stood in the hallway, the deputy told him to return to the cell and that more paperwork was needed. McClurg said, "I need to get out of here. . . . There's an exit down the hallway." McClurg then fled down the hallway. The deputy chased after him, grabbed him from behind, attempted to apply a carotid restraint, and took him to the ground to try to "get him under control." The deputy explained he was concerned for the safety of medical and other staff and civilians in the area. The deputy testified that McClurg continued to scratch and claw to get away after they were both on the ground. Other officers assisted the deputy by restraining and handcuffing McClurg. The deputy's glasses were knocked off, and he had scratches across his eye and cheek. McClurg sustained scratches on his arm.
McClurg was charged with one count of resisting an executive officer in performing his duty in violation of section 69. He was also charged with several counts in connection with the altercation with his mother and sisters, including willful cruelty to an elder and battery.
At trial, the prosecutor showed a video of the incident in the jail that depicted McClurg pushing past the deputy to flee the cell and the deputy's attempt to take McClurg to the floor, but not the events that ensued while McClurg was on the floor.
McClurg, who represented himself at trial, testified that, while awaiting release from the cell, he heard a hiss, "kind of the effect of somebody releasing pressurized gas," and became lightheaded. He "made up [his] mind . . . [he] was going to make a run for it as soon as [he] got the opportunity to." When the deputy approached his cell and opened the door, McClurg "weighed [his] options" and decided that, because the deputy was shorter than he was, he "thought [he] could get past him fairly easily," "out distance him and . . . escape." McClurg testified that, after he attempted to run and was taken to the ground, he did not struggle or resist. In his closing argument, McClurg argued he was being "unjustly detained," and reiterated he tried "to make a run for it." He admitted he pushed the deputy in his attempt to flee, stating, "I am guilty of having tried to [make] a run for it. I do not recall having pushed [the deputy], but at least on examining that, I am guilty of having pushed him."
In making this statement ("on examining that"), McClurg appears to be referring to the fact that the video of the incident was examined during trial.
The jury found McClurg guilty on count 1, resisting an officer (§ 69) and deadlocked on the remaining charges, which were subsequently dismissed. The trial court granted McClurg three years formal probation with the requirement he serve 365 days in local custody, with a credit of 225 days for time served.
On appeal, McClurg asserts two claims of instructional error relating to count 1. First, he argues that a modification to a portion of the jury instruction regarding a peace officer's use of unreasonable or excessive force caused prejudicial error. Second, he argues that the trial court's failure to instruct on the lesser included offense of assault was reversible error. We conclude there was no prejudicial error and affirm the conviction.
DISCUSSION
I. Count 1 Jury Instructions
McClurg's claims of instructional error relate to his conviction for violating section 69, which provides in relevant part, "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." (§ 69, subd. (a).)
The court instructed with CALCRIM No. 2652 (resisting an officer under section 69), as follows:
Judicial Council of California Criminal Jury Instructions (2017 edition), CALCRIM No. 2652. The jury was also instructed with CALCRIM No. 2656, for the lesser included offense of misdemeanor resisting arrest, section 148, subdivision (a), which requires a defendant to willfully resist, delay, or obstruct an officer in the discharge of his or her duties.
"The defendant is charged in Count 1 with resisting an executive officer in the performance of that officer's duty in violation of Penal Code section 69.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant unlawfully used force or violence to resist an executive officer;
2. When the defendant acted, the officer was performing his lawful duty;
"AND
"3. When the defendant acted, he knew the executive officer was performing his duty.
"An executive officer is a government official who may use his or her own discretion in performing his or her job duties. A peace officer is an executive officer.
"A San Diego Sheriff Deputy is a peace officer.
"The duties of a San Diego Sheriff Deputy include, but are not limited to: maintaining order, making detentions, arrests, conducting investigations, and provide [sic] safety and security for the inmates, staff, and guests at the jail.
"A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties. Instruction 2670 explains when an arrest or detention is unlawful and when force is unreasonable or excessive.
"The People allege that the defendant committed this offense by doing the following: (1) using force against [the deputy sheriff] to get out of the cell and (2) using force while being detained after trying to leave. You may not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of the alleged acts of resisting an executive officer who was lawfully performing his or her duties, and you all agree on which act he committed."
The court provided the jury with the following modified version of CALCRIM No. 2670 (lawful performance of duties):
"The People have the burden of proving beyond a reasonable doubt that [the deputy sheriff] was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of Count 1, [§ 69], Resisting an Executive Officer or the lesser included offense of [§ 148, subd. (a)(1)], Resisting, Delaying, and/or Obstructing an Officer.
"A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.
"A. Unlawful Detention
"A peace officer may legally detain someone if:
"1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime;
"AND
"2. A reasonable officer who knew the same facts would have the same suspicion.
"Any other detention is unlawful.
"In deciding whether the detention was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she detained the person.
"C. Use of Force
"Special rules control the use of force.
"A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense.
"If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force.
"However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him.
"If a peace officer uses unreasonable or excessive force while detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself.
"A person being arrested or detained uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection.
"A defendant's subjective belief about whether the officer is acting lawfully is irrelevant." (Italics added.)
Although the modified instruction included a provision regarding "unlawful detention," the court omitted the following provision regarding "unlawful arrest" from CALCRIM No. 2670 (lawful performance of duties):
"B. Unlawful Arrest
"A peace officer may legally arrest someone either on the basis of an arrest warrant or if he or she has probable cause to make the arrest.
"Any other arrest is unlawful.
"Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime.
"In deciding whether the arrest was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she arrested the person. . . ." (Judicial Council of California Criminal Jury Instructions (2017 edition), CALCRIM No. 2670.)
Similarly, the court modified one of the paragraphs under the "use of force" section to omit the following italicized words:
"If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest or detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself." (CALCRIM No. 2670, italics added.)
II. The Instructions Were Not Erroneous, and any Error Was Harmless
McClurg contends the court's modification to CALCRIM No. 2670 deprived him of an available defense—i.e., the ability to use reasonable force to defend against the deputy's use of excessive force during an arrest. Because reference to an "arrest" was omitted from part of the instruction—while leaving a reference to "detention" intact—McClurg claims he could only argue he was using reasonable force to defend against a detention (and not an arrest) involving the deputy's use of excessive force. McClurg further contends he was prejudiced by the erroneous instruction. We conclude there was no prejudicial error.
McClurg did not object and in fact agreed to the instructions given. Even in the absence of a timely objection, we can review McClurg's claim if the alleged instructional error affects his substantial rights. (§ 1259 [we may "review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby"]; § 1469 [same].) McClurg's substantial rights would only be affected if his claim of instructional error has merit. We therefore proceed to review the merits of his claim.
A. There is no reasonable likelihood the jury misunderstood or misapplied the instructions
The trial court has a duty to instruct the jury on the general principles of law relevant to the issues raised by the evidence. (People v. Rogers (2006) 39 Cal.4th 826, 866.) An appellate court independently reviews the correctness and adequacy of a trial court's instructions, examining "whether the trial court 'fully and fairly instructed on the applicable law.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
In reviewing a purportedly ambiguous jury instruction, "we inquire 'whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way' that violates the Constitution." (Estelle v. McGuire (1991) 502 U.S. 62, 72 (Estelle); see People v. Covarrubias (2016) 1 Cal.5th 838, 903-904 (Covarrubias) [finding no reasonable likelihood jury would have understood the instruction in the manner defendant contends].) "[T]he instruction 'may not be judged in artificial isolation,' but must be considered in the context of the instructions as a whole and the trial record." (Estelle, at p. 72.) Moreover, " 'jurors are presumed to be intelligent and capable of understanding and applying the court's instructions.' " (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.)
Rather than reading the instructions as a whole, McClurg focuses on two discrete changes to CALCRIM No. 2670: (1) omission of the "B. Unlawful Arrest" language; and (2) omission of the words "arresting or attempting to arrest" from the clause describing a peace officer's use of unreasonable or excessive force. These modifications cannot reasonably be read to simultaneously allow McClurg to use reasonable force to defend himself from a detention involving an officer's use of unreasonable force, but to preclude him from defending himself from an arrest involving an officer's use of unreasonable force.
The instructions as a whole clearly informed the jury they could not convict McClurg if they found the deputy was either not performing his legal duties, or using unreasonable or excessive force, in connection with both an arrest and detention. The jury was instructed that the People had to prove "the officer was performing his lawful duty," that the deputy's duties include "making detentions [and] arrests," and that "[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties." (CALCRIM No. 2652.) Deleting a few isolated references to "arrest" in CALCRIM No. 2670, a different instruction, does not change the overall import of the instructions. McClurg could still argue the People did not meet its burden of showing the deputy was lawfully performing his duties in connection with either a detention or an arrest.
Even if we consider CALCRIM No. 2670 alone, we disagree with McClurg's claim that the trial court committed instructional error by misleading the jury and depriving him of a defense. Like CALCRIM No. 2652, modified CALCRIM No. 2670 still refers to both an "arrest" and "detention" when explaining whether an officer lawfully performs his or her duties: "A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention." (CALCRIM No. 2670.) In evaluating McClurg's claim of instructional error, the jury instructions cannot be divorced from the underlying facts of this case. McClurg was arrested and jailed the previous day and was awaiting his release at the time of the incident. The prosecutor alleged that McClurg "committed this offense by . . . [u]sing force against [the deputy sheriff] to get out of his cell; and . . . using force while being detained after trying to leave." The jury was clearly and expressly informed of these allegations. McClurg himself characterized the interaction in terms of a detention. Under the circumstances of this case, it was reasonable for the trial court to modify portions of the instruction to focus more heavily on the "detention" issue.
The instruction provided by the court contains several other references to both an arrest and detention, as set forth ante.
Again, the trial court did so by (1) including the language of "A. Unlawful Detention" (while omitting "B. Unlawful Arrest"); and (2) omitting the clause "arresting or attempting to arrest" preceding the clause "detaining or attempting to detain" from the "C. Use of Force" section of CALCRIM No. 2670. Elsewhere, the instruction continued to refer to both arrests and detentions.
Nonetheless, McClurg argues that it is possible that the jury did not consider his act of pushing his way out of the cell, and that, in coming to a guilty verdict, the jury relied entirely upon the subsequent struggle between McClurg and the deputy, making the reasonableness of force used by the respective parties relevant. But if this is so, the instructions expressly characterized this event as a detention—"The People allege that the defendant committed this offense by . . . (2) using force while being detained after trying to leave"—and explained that McClurg could use reasonable force to defend himself in that scenario.
Considering the instructions together within the context of this record, it is not reasonably likely the jury understood the instructions in the manner McClurg contends—i.e., to preclude a defense of the use of reasonable force against an arrest (rather than a detention) involving unreasonable or excessive force. (Covarrubias, supra, 1 Cal.5th at p. 904.) We thus find there was no error.
B. Any error was harmless
Even if the modifications rendered the instructions erroneous, we conclude the error was harmless. The parties disagree on the applicable standard of review to determine whether the error was prejudicial. In his opening brief, McClurg relied on People v. Jeter (2005) 125 Cal.App.4th 1212 (Jeter) to contend the purported instructional error is subject to review under Chapman v. California (1967) 386 U.S. 18 (Chapman), such that error is harmless only when it appears beyond a reasonable doubt that the error did not contribute to the verdict obtained. In contrast, the People contended the reasonable probability standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) applied, such that the error is reversible when there is a reasonable probability it affected the outcome of trial.
After the parties submitted their briefs, the Supreme Court issued its opinion in People v. Gonzalez (2018) 5 Cal.5th 186 (Gonzalez), holding that Watson applies to instructional error claims unless the error omitted an element of the crime, in which case Chapman applies. (Id. at pp. 195-196.) We requested that the parties submit supplemental letter briefs addressing the effect of this opinion on McClurg's contention that the purported instructional error is subject to review under Chapman. In response, McClurg argued that the "puzzling alterations" to the jury instructions "relieved the prosecution of its proper burden of proving an element of the offense alleged in Count 1" such that the purported error should be reviewed under Chapman. The Attorney General disagreed, arguing that "any instructional error did not misdescribe the elements" in this case, so after Gonzalez, "the applicable harmless error standard for appellant's instructional error claims remains that of Watson."
We agree with the Attorney General that the purported error here did not omit an element of the crime and Watson thus provides the appropriate standard of review. Gonzalez clarifies that, unless the instructional error omitted an element of the crime, instructional error claims are reviewed under Watson, such that we must "evaluate whether the defendant has demonstrated that it is ' "reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." ' " (Gonzalez, supra, 5 Cal.5th at p. 195.)
Contrary to McClurg's position, the purported instructional error here did not omit an element of the crime. The instructions referred to both arrests and detentions, and correctly made clear that the deputy's use of excessive force under any circumstances meant the deputy was not lawfully performing his duties (a finding required for a guilty verdict). At most, the modifications omitted language covered elsewhere in the instructions, and highlighted the "detention" issue that was already the focus of the trial as a result of the charges, testimony, and argument of counsel and McClurg.
For this reason, McClurg's reliance on Jeter is misplaced. Jeter was convicted of assault by a prisoner serving a life sentence, a specific intent crime which required a finding of malice aforethought. The jury was provided instructions regarding both general and specific intent crimes, and instructions regarding both malice and malice aforethought. The Court of Appeal determined the instructions were conflicting and it was impossible to know whether the jurors unanimously found the defendant committed the offense with the required intent (malice aforethought). Reversal was required because the court could not "find beyond a reasonable doubt that these conflicting instructions did not contribute to the verdict obtained." (Jeter, supra, 125 Cal.App.4th at pp. 1217-1218.) Unlike the present case, the instructional error in Jeter altered the elements required for conviction and contributed to the guilty verdict.
Applying the Watson standard here, we conclude that reversal is not warranted because it is not reasonably probable that the purported error affected the outcome of trial. The deputy's testimony and the video evidence were each sufficient to support the verdict. In his closing argument, McClurg himself acknowledged he was "guilty of having tried to [make] a run for it," and admitted to using force when he acknowledged pushing the officer. Overall, the evidence establishes that a rational jury would have found that McClurg knowingly used force to resist a peace officer in the performance of his duty even absent the alleged error. Accordingly, McClurg has not established a reasonable probability that error affected the trial's result. (Gonzalez, supra, 5 Cal.5th at p. 195.) We reject McClurg's claim of error on this record.
Even under the more stringent Chapman standard, we would reach the same result because there is no reasonable doubt that the purported error did not contribute to the verdict obtained. --------
III. The Trial Court Did Not Commit Prejudicial Error in Failing to Instruct on Simple Assault
McClurg contends the trial court committed reversible error by failing to instruct on the lesser included offense of assault. "[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. Breverman (1998) 19 Cal.4th 142, 162 (Breverman).) As explained by the Supreme Court in People v. Smith (2013) 57 Cal.4th 232, the sua sponte duty to instruct on a lesser included offense is triggered if two conditions are met:
"[S]o 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." (Id. at p. 244.)The defendant's failure to request such an instruction does not abrogate the trial court's sua sponte duty. (See id. at p. 239.) " 'We apply the independent or de novo standard of review to the failure by the trial court to instruct on an assertedly lesser included offense.' " (People v. Licas (2007) 41 Cal.4th 362, 366.)
The jury here was instructed on section 69, resisting an executive officer in the performance of his duty (the section McClurg was found guilty of violating), as well as the lesser included offense of misdemeanor resisting arrest, which requires a defendant to willfully resist, delay, or obstruct an officer in the discharge of the officer's duty. (§ 148.) McClurg now argues instructions on a second lesser included offense of simple assault were required.
Assault is "an unlawful attempt, coupled with present ability, to commit a violent injury on the person of another." (§ 240). An "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (People v. Williams (2001) 26 Cal.4th 779, 790.)
The complaint against McClurg alleged that he violated section 69 in two ways: (1) attempting by means of threat or violence to deter or prevent an officer from performing a duty imposed by the law; and (2) resisting by force or violence an officer in the performance of his or her duty. However, at trial, the prosecutor pursued only the latter theory (resisting by the use of force). As described ante, the court instructed the jury on this theory and on McClurg's right to defend himself against excessive force. On appeal, the People concede that, in these circumstances, assault may be a lesser included offense of resisting an officer under section 69 under the accusatory pleading test.
However, as discussed ante, "instructions on lesser included offenses 'are required whenever evidence that the defendant is guilty only of the lesser offense is "substantial enough to merit consideration" by the jury.' " (People v. Campbell (2015) 233 Cal.App.4th 148, 162; accord Smith, supra, 57 Cal.4th at p. 245 ["a trial court is not required to instruct the jury on a necessarily included lesser offense ' "when there is no evidence that the offense was less than that charged." ' "].) The parties disagree on whether substantial evidence supported instructing the jury on the lesser offense of simple assault.
We conclude there was no instructional error in failing to instruct on simple assault based on the record in this case, and even if the court erred, the error was not prejudicial. The court's ruling in People v. Brown (2016) 245 Cal.App.4th 140 (Brown) is instructive. In that case, an officer noticed Brown, a 67-year-old African-American man, riding his bicycle on the sidewalk while wearing headphones, and without a headlight, even though it was near dusk. (Id. at p. 146.) When the officer yelled at Brown to stop, Brown sped up and tried to flee. (Ibid.) Officers pursued him, cornered him, and, after a brief altercation, arrested him. (Ibid.) The parties' descriptions of the altercation were very different. (Ibid.) According to the officers' testimony, Brown was aggressive, noncompliant, and combative, repeatedly swinging his fists even after being struck. (Ibid.) Brown, on the other hand, testified that the officers attacked him, without warning or provocation, after he fell from his bicycle, and that he did not swing at the officers or otherwise resist after he fell. (Id. at p. 147.)
The Court of Appeal reversed Brown's conviction for resisting an officer under section 69, finding the trial court committed reversible error because it failed to instruct on simple assault. The Brown court reasoned that the jury could have concluded that the officers used unreasonable or excessive force if they credited the defendant's version of events, but could also have concluded that the defendant responded to the officers' use of excessive force with unreasonable force, if they also credited the officers' version of events. (Brown, supra, 245 Cal.App.4th at p. 154.) Thus, the jury could have concluded that the officers' use of force was excessive but that the defendant's use of force in response was unreasonable, which would have supported an assault conviction. (Ibid.)
McClurg contends the jury could have believed the portion of his testimony claiming the deputy used excessive force in taking him to the ground using a carotid restraint (thereby entitling McClurg to defend himself using reasonable force), but also believed the deputy's testimony that McClurg responded with excessive force (e.g., by scratching and clawing at the deputy's eye and cheek, and continuing to struggle and resist after they both fell to the ground). McClurg further contends that, as in Brown, this would have justified a guilty verdict for assault but not for violating section 69. In this case, however, McClurg's testimony is contradicted by the video showing that the deputy, when trying to stop McClurg, was appropriately responding to McClurg's attempt to flee without using excessive force. "[T]he 'substantial' evidence required to trigger the duty to instruct on such lesser offenses is not merely 'any evidence . . . no matter how weak' [citation], but rather ' "evidence from which a jury composed of reasonable [persons] could . . . conclude[ ]" ' that the lesser offense, but not the greater, was committed." (People v. Cruz (2008) 44 Cal.4th 636, 664.) A reasonable juror would not have credited McClurg's description in this case.
Even if the court erred, there was no prejudicial error. We will reverse a judgment based on failure to instruct on a lesser included offense "only if, 'after an examination of the entire cause, including the evidence' [citation], it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred [citation]." (Breverman, supra, 19 Cal.4th at p. 178, citing People v. Watson, supra, 46 Cal.2d at p. 836.) " 'The question is not what a jury could have done, but what a jury would likely have done if properly instructed.' " (People v. Larsen (2012) 205 Cal.App.4th 810, 831.) In making this determination, we may consider the relative strengths and weaknesses of the evidence supporting the greater and lesser offenses, the jury "instructions as a whole, the jury's findings, and the closing arguments" of the parties. (Ibid.)
In this case, it is not reasonably probable that McClurg would have obtained a more favorable outcome had the jury been instructed on the lesser included offense of simple assault. The only conflicting testimony related to the events that occurred after McClurg shoved the deputy, with McClurg maintaining he neither struggled nor resisted after he fled the cell and the deputy took him to the floor with the attempted carotid restraint. There was no conflicting evidence regarding what occurred before this struggle ensued. The video evidence alone supports a conviction under section 69. In addition, McClurg admitted to pushing the deputy in his attempt to flee the jail, and there was no evidence to support the conclusion that McClurg did not understand the deputy was performing his duties as an officer. Although McClurg raised the theory that he was being "unlawfully detained" in jail because he had posted bond, his own testimony failed to support that theory. He did not testify (or even argue) that he left the cell because he believed he was free to go. Rather, he testified that he wanted to flee the jail because he believed he was being gassed, and he thought he could outrun or overpower the smaller deputy. McClurg's admissions, coupled with the lack of evidence that McClurg did not understand the deputy was performing his duties as an officer, support the conclusion that there was no prejudicial error in failing to instruct on simple assault.
We therefore conclude that even if the trial court erred in failing to instruct the jury on the lesser included offense of simple assault under the accusatory pleading test, it is not reasonably probable any such error affected the outcome of the trial.
DISPOSITION
The judgment is affirmed.
GUERRERO, J. WE CONCUR: HALLER, Acting P. J. DATO, J.