Opinion
D079082
12-22-2022
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL MICHEL, Defendant and Appellant.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCN419992, Carlos O. Armour, Judge. Reversed and remanded.
Alex Kreit, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa A. Mandel and Stephanie H. Chow, Deputy Attorneys General, for Plaintiff and Respondent.
BUCHANAN, J.
Defendant Michael Michel appeals the judgment entered after a jury found him guilty of attempting to deter and resisting an executive officer in the performance of his duties in violation of Penal Code section 69. Michel contends that the court's failure to give certain jury instructions and its erroneous responses to jury questions during deliberations constituted prejudicial error requiring reversal of his conviction. We agree that the court's response to the jury's inquiry regarding the reasonableness of the police officers' use of force was prejudicially erroneous. Because we reverse the judgment on that basis alone, we need not decide the remaining issues raised in Michel's appeal. We do, however, provide guidance for the trial court on issues likely to arise on retrial.
All subsequent statutory references are to the Penal Code.
FACTUAL AND PROCEDURAL BACKGROUND
The People charged Michel with resisting an executive officer in violation of section 69, alleging that Michel violated the statute both by unlawfully preventing an executive officer from performing their duties and by resisting an executive officer by force. The People further alleged that Michel had been convicted of a strike prior.
A. The Prosecution's Case
In December 2020, City of Escondido Ranger Specialist Jillian Mullen was on duty and stationed at the Escondido Public Library. Ranger Mullen was patrolling the library when she noticed Michel sleeping inside and wearing a mask that was not covering his nose, both of which are against library rules. Ranger Mullen woke Michel up and informed him of the rules against sleeping and improper mask wearing. Ranger Mullen asked Michel to leave the library, telling him he was ejected for three days, and that if he returned within three days, she would issue him a citation.
Michel walked out of the library, and Ranger Mullen followed him toward the sidewalk. She then turned around and started walking back to the building, but before she reached the doors, she saw Michel come back toward the library and get into a verbal altercation with another male library patron. Michel and the other library patron began arguing, and Ranger Mullen saw Michel throw down his jacket, ball his fists, and raise them up toward the other man. The other man did the same. The man then walked away from Michel and entered the library.
When Ranger Mullen saw this altercation, she reported it to the Escondido Police Department over her radio and requested that the Department send a unit to the library to assist. Ranger Mullen asked Michel to sit down on the library patio, and he initially complied.
Ranger Mullen's partner, Ranger Joel Prospero, arrived a few minutes later after hearing Ranger Mullen's call to the Escondido Police Department over the radio. Ranger Prospero testified that Michel was acting aggressively and cursing when Ranger Prospero approached and greeted him. At that point, Michel was standing with his hands clenched, and Ranger Prospero took a couple of steps back when Michel turned to face him because he was afraid Michel would try to punch him. Ranger Prospero testified that he told Michel to calm down, that no one wanted to fight him, and to sit down.
Escondido Police Officer Brandon Byler then arrived in uniform and in his patrol car, responding to Ranger Mullen's report of a fight at the library. Officer Byler testified that he was aware that another police officer had also been dispatched to the library as his "cover officer." As soon as Officer Byler exited his patrol car, he heard Michel say something along the lines of, "I'm going to fuck you up," to the two rangers standing with him. Based on the information from the radio call, Michel's aggressive body language, and his comment to the rangers, Officer Byler testified that he decided to detain Michel and investigate further.
Officer Byler approached Michel and said, "Hey, just stop, man. Just stop. No drama. [¶] . . . [¶] For real, no drama. All right, the police are here. It's time to call a time out, no drama." Michel responded, "Fuck that" and started to walk away. Officer Byler told Michel, "Look, man, if you continue to walk away, you're going to be detained. Force will be used against you." Michel told Officer Byler "Fuck you" and something along the lines of, "You're security, dog," and then said, "I'll fight you." Officer Byler responded, "Don't threaten the cops, man." Officer Byler also instructed Michel: "Don't reach in your waistband. Don't pull out a weapon, dude." Michel responded, "I ain't got no weapon." Officer Byler then told Michel to take a seat on the curb, which he did not do, and continued trailing Michel while waiting for backup to arrive.
Escondido Police Officer Trent Aronson then arrived at the library in uniform and in a patrol car. Officer Aronson approached Michel and asked him to sit.
While Officer Aronson was talking to Michel, Officer Byler reached out for Michel's right wrist, but Michel pulled it away. Michel twisted and continued to pull away from Officer Byler, and Officer Byler grabbed onto Michel's shirt. Officer Aronson then tackled Michel to the ground. Officers Aronson and Byler each struck Michel multiple times on his head with their fists while he was on the ground, which Officer Aronson testified was done to gain access to Michel's hands. Officer Byler described these strikes as "distraction blows."
Officer Aronson was able to get both his hands on the back of Michel's head and neck and push his face flat against the sidewalk. At around the same time, Officer Byler had gained control of one of Michel's arms, which he put behind Michel's back and moved up until Michel's knuckles and fingers were between his shoulder blades. At some point during the struggle, Ranger Prospero got on top of Michel's legs.
Officer Byler then used his knee to strike Michel in the ribs multiple times, including at least once after he had both of Michel's hands behind his back. Officer Byler then handcuffed Michel. Officer Byler testified that he struck Michel to gain control of his hands and out of concern that Michel was grabbing toward his waistband, and that he kneed Michel in the ribs a final time after his hands were behind his back because he wanted Michel to comply with his orders. After Michel was handcuffed, Officer Byler noticed an abrasion on his own right temple that had resulted from his encounter with Michel.
The prosecution introduced video recordings of Michel's interactions with Rangers Mullen and Prospero and Officers Byler and Aronson leading up to and during the arrest, including from the body-worn cameras of Officers Byler and Aronson.
B. The Defense Case
Michel took the stand in his own defense. Michel testified that at the time of the incident, he had been unhoused for several years. The day of his arrest, he had walked to the library from his friend's house and took a Xanax bar on the way to ease his anxiety and so that he could relax. Michel fell asleep at the library before being woken up and asked to leave by Ranger Mullen. As he headed to the sidewalk outside, Michel encountered another library patron and got into an argument with him, but the two did not get into a physical fight.
When Ranger Prospero arrived at the library, Michel felt "amped up" and "upset," and he started "acting dumb against [Ranger] Prospero." Soon after, Officer Byler arrived at the scene. Michel testified that he did not recognize Officer Byler was a police officer but rather believed he was either another park ranger or "some kind of security." Officer Aronson was the first person on the scene Michel recognized to be a police officer.
Michel stated that he was attempting to leave the premises but realized Officer Byler and Rangers Prospero and Mullen were following him. Michel was "still out of it" and was "saying unnecessary things and being dumb," including cursing at Officer Byler and saying that he would fight him. Michel testified that he said these things in part because he was being ordered to sit on the curb but believed he had the right to stay on his feet. He attributed his behavior at least in part to the effects of the Xanax he had taken, which he also testified affected his senses.
Shortly after Officer Aronson arrived, Officer Byler lunged for Michel's right arm. Michel testified that his natural reaction was to pull away because he was startled. As Michel pulled away, Officer Aronson took him to the ground from the back and rubbed his face in the concrete. Michel attempted to cover his head and face as they struck him a number of times. His hands were then pulled behind his back and he was kneed in the ribcage, which knocked the wind out of him. Michel stated that the reason he did not go limp when he was taken to the ground is that he was tense because his "face was being smashed on the floor."
The defense also introduced video recordings at trial, including from surveillance cameras at the Escondido Public Library.
C. Jury Instructions and Questions
Prior to closing arguments, the court instructed the jury. As relevant to this appeal, the court provided instructions regarding the union of act and intent required for a general intent crime (CALCRIM No. 250), attempting to prevent an executive officer from performing his or her duty (CALCRIM No. 2651), resisting an executive officer in the performance of his or her duty (CALCRIM No. 2652), and lawful performance of a peace officer's duties (CALCRIM No. 2670). The court refused Michel's request to give instructions on voluntary intoxication, verbal opposition to the police, and delay or failure to quickly respond to police commands.
During deliberations, the jurors submitted four jury notes, containing a total of seven questions. The court responded to each question in writing after discussions with counsel for the People and counsel for Michel. We address the specifics of the jury's questions and the court's responses relevant to our decision in more detail below.
D. Conviction and Sentencing
The jury found Michel guilty of violating section 69 under both theories advanced by the prosecution, and Michel admitted the prior strike conviction. The trial court sentenced Michel to an aggregate term of three years eight months in state prison, consisting of a principal term of two years eight months for Michel's conviction in this case, plus another consecutive term of one year and concurrent term of eight months for two other convictions unrelated to this case.
Michel timely appealed from the judgment.
DISCUSSION
Michel contends the trial court prejudicially misstated the law in its responses to the jury's questions regarding (1) the standard for reasonableness for an officer's use of force, and (2) whether it is lawful to refuse an officer's order to sit down. He also challenges (1) the court's decision to instruct the jury with CALCRIM No. 250 (as opposed to CALCRIM No. 251) on union of act and intent, and (2) the court's refusal to grant Michel's request for a jury instruction on voluntary intoxication.
Michel contends that the court's supplemental instruction in response to the jury's question regarding the reasonableness of the officers' use of force was erroneous and prejudicial. We agree and find that reversal is warranted on this basis alone.
A. Standard of Review
We apply the abuse of discretion standard of review to any decision by the" 'trial court to instruct, or not to instruct, in its exercise of its supervision over a deliberating jury.'" (People v. Fleming (2018) 27 Cal.App.5th 754, 765 (Fleming), citing People v. Waidla (2000) 22 Cal.4th 690, 745-746.) "If a supplemental instruction is given, however, its correctness presents a question of law that we review de novo." (People v. Franklin (2018) 21 Cal.App.5th 881, 887, fn. 4.) In deciding whether the court correctly instructed the jury, we ask both whether there is a reasonable likelihood the jury understood the charge and whether the instruction stated the applicable law correctly. (People v. Doane (2021) 66 Cal.App.5th 965, 980-981 (Doane).) B. The Trial Court Erred in Answering the Jury's Question
Michel was charged with violating section 69 under two theories: (1) by trying to prevent or deter an executive officer from performing that officer's duty (CALCRIM No. 2651); and (2) by resisting an executive officer in the performance of that officer's duty (CALCRIM No. 2652). As set forth in the instructions given to the jury here, for both of these theories, section 69 requires the People to prove beyond a reasonable doubt that the officer was "lawfully performing" his or her duty. The court used a variant of CALCRIM No. 2670 to instruct the jury regarding whether the officers in this case were lawfully performing their duties. The instruction stated, in part: "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.... [¶] . . . [¶] 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."
During deliberations, the jury submitted a note to the court requesting guidance on the reasonableness and excessive use of force standard. The jury posed two specific questions: "Regarding the determination of the use of unreasonable/excessive force while attempting to detain: is it permissible to weigh what Officers Byler and Aronson did vs. what they did not do? Specifically, if reasonable officers, knowing the same facts and in the same situation, would consider an approach that effected a peaceful detainment to have a good likelihood of success, then does the takedown of Mr. Michel constitute unreasonable/excessive force?" The court responded as follows: "You should decide this case based on the actions of Officers Byler and Aronson only, not the fact that other Officer's [sic] may act in a different manner in handling this particular incident. [¶] You may weigh testimony and actions of the Officer's [sic] in any manner you think is reasonable. [¶] The question here is whether the Officer's [sic] acted reasonably when they attempted to detain Mr. Michel during their perceived investigation of criminal activity."
We agree with Michel that the court's instruction to the jury that it should decide the case "based on the actions of Officer Byler and Aronson only, not the fact that other [officers] may act in a different manner in handling this particular incident" was an incorrect statement of law. Whether an officer used reasonable or excessive force is judged from the perspective of a reasonable officer on the scene. (Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 762 (Allgoewer); Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527-528.) By telling the jury to decide the case based on the actions of Officers Byler and Aronson only, and not to consider how other officers may have acted in the same situation, the court effectively instructed the jury not to consider what a reasonable officer in the same situation would have done.
As the prosecutor noted when the court originally proposed this response, it did not comport with the pattern jury instruction given on reasonableness. CALCRIM No. 2670 explained, for example, that a peace officer may legally detain someone if "[a] reasonable officer who knew the same facts would have the same suspicion," and the section that discusses probable cause to arrest provides that "[p]robable 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." (Italics added; see also In re Joseph F. (2000) 85 Cal.App.4th 975, 982 ["facts must be such as would cause any reasonable officer in a like position, drawing on his or her training and experience, to suspect the same criminal activity and the same involvement by the person in question"].) It also stated that the person being arrested or detained "uses reasonable force" when he or she "uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection." Though not stated explicitly in the version of CALCRIM No. 2670 given at trial, a "reasonable officer" standard similarly applies in assessing whether an officer used excessive force. (Allgoewer, supra, 207 Cal.App.4th at p. 762.)
The prosecutor specifically commented, "But that's directly in conflict with the only pattern instruction on reasonableness. It's in the same one, in 267[0], where for detention, you do consider what [sic] a reasonable officer has the same suspicion. So I think the test is against a reasonable officer."
The People contend that Michel's focus on the first sentence of the court's response ignores that the response was a correct statement of law when considered in its entirety. According to the People, there could be several different reasonable actions taken in response to the same situation, and the fact that other officers might have chosen a different action in this particular situation does not necessarily mean that the actions Officers Byler and Aronson took were unreasonable. That may be so, but it is beside the point. The jurors here specifically asked the court if they could consider "what Officers Byler and Aronson did vs. what they did not do" and whether "reasonable officers, knowing the same facts and in the same situation, would consider [a different] approach." The correct answer is "yes"-the jury could (and should) have considered what a reasonable officer in Officer Aronson's and Officer Byler's position would have done. The court's answer, in short, was "no"-it instructed the jury to "decide this case based on the actions of Officers Byler and Aronson only, not the fact that other [officers] may act in a different manner in handling this particular incident." This was erroneous.
The People also argue that the court's response, when viewed as a whole, was consistent with the jury instructions already given. But "[w]here a jury has expressed confusion about a legal principle, it is no longer appropriate to assume that the jury can just 'figure it out' from the instructions as a whole. Instead, the focus must be on whether the trial court's answer was sufficient to dispel the confusion. [Citation.] Here, it was not." (Doane, supra, 66 Cal.App.5th at p. 983.) Although the standard CALCRIM instructions correctly stated the law, the version given at trial did not specifically tell the jury how to assess whether the officers were using unreasonable or excessive force. The jury's question clearly indicated that it had focused on this point and needed clarification. The court's answer misdirected the jury by effectively telling it not to consider what another reasonable officer would have done in the same situation.
"The trial judge's instructions to the jury have always been recognized to be a fundamentally important stage of the criminal proceeding.... Jurors are not first year law students with some independent motive for legal study. At best, they are well[-]meaning but temporary visitors in a foreign country attempting to comprehend a foreign language. [¶] To perform their job properly and fairly, jurors must understand the legal principles they are charged with applying." (People v. Thompkins (1987) 195 Cal.App.3d 244, 250 (Thompkins).) One of the trial court's primary duties is to facilitate that understanding. (See ibid.; Fleming, supra, 27 Cal.App.5th at p. 767.) The court also has an obligation to clarify any instructional confusion expressed by the jury. (Doane, supra, 66 Cal.App.5th at p. 980.) "This obligation arises under section 1138, which provides that if deliberating jurors 'desire to be informed on any point of law arising in the case, . . . the information required must be given' to them in court." (Ibid.) Indeed, "[a] jury's request for reinstruction or clarification should alert the trial judge that the jury has focused on what it believes are the critical issues in the case. The judge must give these inquiries serious consideration." (Thompkins, at p. 250.)
The full text of section 1138 states: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
We conclude that the trial court erred in giving a legally erroneous response to the jury's question on the standard for assessing the reasonableness of the officers' use of force.
C. The Erroneous Instruction Was Prejudicial
The central question before us now is whether the instructional error was prejudicial and thus requires reversal of the conviction. The parties disagree on which standard of prejudice applies here.
Michel argues that the court's instruction misstated an element of the charged offense and thus violates the right to jury trial guaranteed by the federal constitution, so "the effect of this violation is measured against the harmless error test of Chapman v. California (1967) 386 U.S. 18, 24." (Fleming, supra, 27 Cal.App.5th at p. 768.) Under the Chapman analysis, the court determines "whether beyond a reasonable doubt the jury verdict would have been the same absent the error." (People v. Nero (2010) 181 Cal.App.4th 504, 519.)
The People, on the other hand, contend that a failure under section 1138 to adequately answer the jury's question is subject to the prejudice standard of People v. Watson (1956) 46 Cal.2d 818 (Watson). "Under Watson, a reviewing court must reverse if 'it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.'" (People v. Hendrix (2022) 13 Cal.5th 933, 944 (Hendrix), citing Watson, at p. 836.) "[A] 'probability' in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715; see also Hendrix, at p. 944.)
We need not resolve this dispute, however, because we find that the erroneous instruction was prejudicial even under the less stringent standard of Watson. (See Hendrix, supra, 13 Cal.5th at p. 944.)
One of two primary theories advanced by the defense in this case was that the officers acted unreasonably by physically engaging Michel too soon. There was testimony at trial about police training and use of de-escalation tactics to defuse a situation and avoid the use of physical force. Michel's trial counsel argued in closing that the less than two minutes Officers Byler and Aronson spent attempting to deescalate the situation before going "hands-on" was insufficient, and their use of force was unreasonable. If the officers' use of force was unreasonable, they were not lawfully performing their duties, and Michel therefore could not be guilty of violating section 69.
The record before us clearly demonstrates that the jury was focused on this issue. The jury requested clarification as to the use of reasonable force by asking the court several questions. First, the jury asked whether it was permissible to weigh what the officers did against what they did not do. Second, the jury asked whether Officer Byler's and Officer Aronson's actions constituted unreasonable and/or excessive force if reasonable officers in the same situation "would consider an approach that effected a peaceful detainment to have a good likelihood of success." The jury had also previously asked for "the definition of 'unlawful use of force' in regards to civilians." These questions indicate that the jury believed the reasonableness of the use of force to be one of "the critical issues in the case." (See Thompkins, supra, 195 Cal.App.3d at p. 250.)
The record also indicates that the jury was divided during deliberations, as it asked the court during its second day of deliberating if "there [was] still an option for a hung jury" and whether the decision "ha[d] to be unanimous." The jury then returned its verdict within 30 minutes of receiving the court's erroneous answer to its question on the use of force. Taken together, these facts demonstrate to us that there is more than an abstract possibility that, if properly instructed in response to the jury's question, at least one juror would have found the officers' use of force was excessive such that a conviction would not have resulted.
The Supreme Court recently held that a hung jury is a "more favorable" outcome for purposes of harmless error review under Watson. (Hendrix, supra, 13 Cal.5th at p. 947, fn. 6.) It is therefore sufficient for Michel to demonstrate a reasonable chance that the jury would have deadlocked, as opposed to finding him not guilty, absent the erroneous instruction.
The People contend that the jury would have reached the same conclusion regarding whether the force was reasonable even if the court had instructed them that other officers might have attempted different tactics or approaches. But, again, this argument misses the point. As indicated by the juror notes, the jury was well aware that other officers might have taken a different approach. And, as the People observe, defense counsel made this argument in closing, telling the jury that the officers could and should have given Michel more time to comply and attempted other tactics prior to physically engaging him. The problem is that the court instructed the jurors not to consider this fact in deciding whether the use of force was reasonable here. As we have explained, this was error.
This error was not harmless. "[I]f jury instructions are important in general, there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jury's inquiry during deliberations." (Thompkins, supra, 195 Cal.App.3d at pp. 250, 252-253.) The court's erroneous response to the jury's inquiry regarding the officers' use of force was prejudicial and thus requires reversal.
Given our dispositive conclusion, we comment only briefly on Michel's remaining contentions for the limited purpose of providing guidance to the trial court on retrial.
Michel contends that the court also erred in its response to the jury's question regarding whether it is "lawful for a citizen to refuse a command from an officer to sit down." The trial court responded to this question as follows: "It is not lawful for a citizen to refuse a lawful order from a Peace Officer to sit down. Please see CalCrim 2670." (Italics added.) We need not and do not decide whether this response was correct as a matter of law. Rather, we note that, even if technically correct, the answer does nothing to clarify for the jury how to evaluate whether the order from the officers to sit down was in fact a "lawful" order. (See Thompkins, supra, 195 Cal.App.3d at p. 250 ["The mere recitation of technically correct but arcane legal precepts does precious little to insure that jurors can apply the law to a given set of facts."].) The jury instructions already given did not address when a police officer may lawfully order someone to sit down. Thus, the court's response to this question did not give the jury any meaningful guidance. If the issue arises again on retrial, Michel is entitled to have such legal concepts "correctly explained, especially after the jury request[s] clarification." (People v. Giardino (2000) 82 Cal.App.4th 454, 466.)
Michel also argues, and the People concede, that the trial court should have instructed the jury on CALCRIM No. 251 rather than CALCRIM No. 250. We agree. As the parties point out, the Judicial Council's Bench Notes to the relevant instructions leave no discretion to the court. The Bench Notes to CALCRIM No. 250 state: "This instruction must not be used if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense. In such cases, the court must give CALCRIM No. 251, Union of Act and Intent: Specific Intent or Mental State." Similarly, the Bench Notes to CALCRIM No. 251 state: "This instruction must be given if the crime requires a specific mental state, such as knowledge or malice, even if the crime is classified as a general intent offense." Michel was charged with violating section 69 by (1) attempting to deter or prevent an executive officer from performing a duty imposed by law, and (2) resisting, by force or violence, an officer in the performance of his or her duty. Both violations required the People to prove Michel's mental state, because both require that he knew the person he tried to deter or resisted by force or violence was an executive officer. (See § 69, subd. (a); People v. Atkins (2019) 31 Cal.App.5th 963, 975-979.) The court therefore should have instructed the jury with CALCRIM No. 251.
Finally, Michel contends that the trial court erred when it refused his request for a jury instruction on voluntary intoxication. He claims that both ways of violating section 69 constitute a specific intent crime, such that Michel was entitled to a voluntary intoxication instruction to support a defense that his intoxication negated the specific intent or knowledge element of both theories. The People argue that the instruction was not warranted because (1) there was insufficient evidence of Michel's intoxication, and (2) resisting an executive officer by force or violence under section 69 is a general intent crime. The People also argue that if any error occurred, it was harmless.
Because the evidence of voluntary intoxication in any retrial may not be the same as in the first trial, we need not decide the sufficiency of the evidence for an intoxication instruction here. However, we agree with the People that the second way of violating section 69-resisting an executive officer-is a general intent theory. (People v. Atkins, supra, 31 Cal.App.5th at p. 974; People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1419 (Rasmussen).) Voluntary intoxication is not a defense to general intent crimes. (People v. Atkins (2001) 25 Cal.4th 76, 81; see also § 29.4, subd. (a) ["Evidence of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including . . . knowledge."].) The court therefore did not err in refusing a voluntary intoxication instruction as to this violation.
We agree with Michel, however, that the first way of violating section 69-attempting to deter or prevent an executive officer from performing their duty-is a specific intent crime. (Rasmussen, supra, 189 Cal.App.4th at p. 1420 [collecting cases].) The People do not dispute this. Therefore, if Michel presents substantial evidence of his intoxication on retrial, he is entitled to a voluntary intoxication instruction as to this theory of the offense.
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion.
WE CONCUR: DATO, Acting P. J. DO, J.