Opinion
D068265
02-27-2017
THE PEOPLE, Plaintiff and Respondent, v. RANDY DOYLE RUSOE, Defendant and Appellant.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN339809) APPEAL from a judgment of the Superior Court of San Diego County, Richard S. Whitney, Judge. Affirmed as modified. Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
I.
INTRODUCTION
A jury found Randy Rusoe not guilty of battery on a peace officer with injury (Pen. Code, § 243, subd. (c)(2)), and guilty of the lesser offense of battery on a peace officer (§ 243, subd. (b)) (count 1). The jury also found Rusoe guilty of resisting an executive officer in the performance of the officer's duties (resisting an executive officer) (§ 69) (count 2). After the jury rendered its verdicts, the trial court found that Rusoe had suffered a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, 668). At sentencing, the trial court granted Rusoe's motion to strike the prior strike conviction and sentenced Rusoe to state prison for two years. The sentence was comprised of the midterm of two years on count 2, plus a concurrent term of 365 days on count 1, to be served in the custody of the sheriff's department.
Unless otherwise specified, all subsequent statutory references are to the Penal Code.
On appeal, Rusoe claims that the judgment must be reversed due to jury misconduct, premised upon a juror's conversation with a witness during a break in the proceedings. Rusoe also contends that the trial court committed reversible error in failing to instruct the jury on simple assault (§ 240) as a lesser included offense to the charged offense of resisting an executive officer (§ 69) (count 2). Finally, Rusoe claims that the trial court erred in failing to stay execution of the sentence on count 1 pursuant to section 654.
We reject Rusoe's jury misconduct claim and conclude that any error that the trial court committed in failing to instruct the jury on count 2 on simple assault as a lesser included offense was harmless. We further conclude that the trial court erred in failing to stay execution of the sentence on count 1 pursuant to section 654. We modify the judgment to stay execution of the sentence imposed on count 1 pursuant to section 654 and affirm the judgment as so modified.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. The People's evidence
On December 10, 2014, at approximately 10:00 p.m., a security guard at an apartment building in San Marcos called 911 and reported that a man inside one of the apartments had been yelling, and that there might be a family inside the apartment. San Diego County Deputy Sheriff Mark Garrett was dispatched to the scene. From a vantage point outside of the apartment, Deputy Garrett could see a man in the apartment, later identified as Rusoe, pacing back and forth, shouting. Although Deputy Garrett could not fully hear what Rusoe was shouting, Garrett believed that it involved something with "religious undertones." According to Deputy Garrett, Rusoe appeared to be "extremely agitated." In light of the "potentially volatile" situation, Deputy Garrett elected to wait until another deputy arrived before making contact with Rusoe.
San Diego County Deputy Sheriff Scott Crane arrived soon thereafter. Deputy Crane spoke briefly with Deputy Garett and, while standing outside the apartment, looked though a large sliding glass door. Deputy Crane could see Rusoe "yelling and screaming" inside the apartment. Rusoe was using profanity and appeared to be yelling at another person in the apartment.
Deputy Garrett knocked on the front door of the apartment. A woman, later identified as Rusoe's wife, Beverly Rusoe (Beverly), opened the door. Deputy Garrett informed Beverly that he and Deputy Crane were with the Sheriff's Department and that they were at the residence pursuant to a call concerning a disturbance. Beverly looked as if she was afraid for her own safety. Deputy Garrett remained at the entrance and called for Rusoe to show himself. Rusoe approached the door and said to the deputies in an aggressive tone, "Come on in." Deputy Garrett asked Rusoe to sit on the couch. Rusoe ignored the request, stepped toward Deputy Garrett and, according to Deputy Crane, said something to the effect of, "This is my house. Get the fuck out. You sit the fuck on the ground. Fuck you."
Deputy Garrett directed Rusoe, in a stern voice, to "[s]it down on the couch." Rusoe again failed to sit down on the couch, and became more agitated. Deputy Garrett thought that Rusoe might be experiencing a psychotic episode and decided to forcibly move Rusoe to the couch using a law enforcement technique referred to as the "escort position." Deputy Garrett put his hands on Rusoe's right arm, near the elbow area and wrist, in an attempt to guide him to a seated position on the couch. Rusoe immediately flexed his arm and moved it away from the deputy. In response, Deputy Garrett attempted to perform an "arm bar takedown" to sweep Rusoe down to the ground, in order to permit the deputies to place him in handcuffs. However, Rusoe pulled away and punched Deputy Garrett in the face. The force of the punch propelled Deputy Garrett to the other side of the living room. Deputy Garrett became disoriented and felt significant pain on his face.
Deputy Crane moved toward Rusoe and swung his flashlight at him, but failed to make contact with Rusoe because Rusoe ducked. While ducking, Rusoe tripped over a chair and rolled into a kitchen table. Deputy Crane saw a large knife on the table just inches from Rusoe's hand. As Rusoe tried to stand up, Deputy Crane put his arm around Rusoe's head and took him to the ground. Rusoe was screaming obscenities at Deputy Crane and attempting to fight. Deputy Garrett moved across the room to assist Deputy Crane and struck Rusoe in the hip with a flashlight. Rusoe continued to fight with the deputies for a brief period of time until they were eventually able to place him in handcuffs. B. The defense
As discussed in greater detail in part III.B, post, Jack G. Smith testified as an expert in police practices and procedures and use of force. In responding to a hypothetical question based on the evidence in this case, Smith stated that in his opinion, a hypothetical officer who acted as Deputy Garrett had, would not have acted consistently with training protocols governing law enforcement officers' contacts with persons with mental illness. Smith further stated that in his opinion, the "force used by [Deputy Garrett] was excessive and improper."
Beverly testified that Rusoe began researching the Bible when the couple moved to San Marcos in October 2014, and that he started telling anyone who would listen to him that he was God. On the day of the incident, Rusoe was giving a loud sermon to her in their apartment. At some point during the sermon, a security guard came to their door. Rusoe yelled at the guard and told him, "I am going to burn this [motherfucker] down." Beverly was not surprised that, as a result of Rusoe's "hollering," law enforcement officers would be called to their residence.
When the deputies arrived, Beverly answered the door and told Rusoe that someone was at the door. She then took her dog into the bedroom because the dog was barking. When she returned to the living room, Beverly heard one officer ask Rusoe to sit down. Seconds later, a fight broke out and Rusoe was on the floor. Beverly did not see Rusoe swing at the officers. C. Rebuttal Evidence
Deputy Crane testified that when he spoke with Beverly on the night of the incident, she told him that she had seen Rusoe "start[ ] swinging," and that she had then "looked away."
III.
DISCUSSION
A. Rusoe is not entitled to reversal of the judgment due to jury misconduct
Rusoe claims that he is entitled to reversal of the judgment due to jury misconduct. Rusoe maintains that the trial court's "failure to dismiss [a] juror and/or grant a mistrial requires reversal of appellant's convictions." Rusoe also contends that reversal of the judgment is required because the record demonstrates that there was a substantial likelihood of juror bias.
1. Applicable standards of review
A trial court's ruling denying a request to dismiss a juror for misconduct is subject to the abuse of discretion standard of review. (See People v. Cowan (2010) 50 Cal.4th 401, 505-506 (Cowan) [" '[T]he ultimate decision to retain or discharge a juror . . . rests within the sound discretion of the trial court' "].) Likewise, an appellate court applies the abuse of discretion standard of review to any ruling on a motion for a mistrial. (People v. Williams (1997) 16 Cal.4th 153, 210.)
In People v. Tafoya (2007) 42 Cal.4th 147, at page 192, the Supreme Court outlined the standard of review to be applied in determining whether jury misconduct requires reversal of a judgment:
"On appeal, the determination whether jury misconduct was prejudicial presents a mixed question of law and fact ' "subject to an appellate court's independent determination." ' [Citation.] We accept the trial court's factual findings and credibility determinations if supported by substantial evidence. [Citation.] [¶] We assess prejudice by a review of the entire record. 'The verdict will be set aside only if there appears a substantial likelihood of juror bias. Such bias can appear in two different ways. First, we will find bias if the extraneous material, judged objectively, is inherently and substantially likely to have influenced the juror. [Citations.] Second, we look to the nature of the misconduct and the surrounding circumstances to determine whether it is substantially likely the juror was actually biased against the defendant. [Citation.] The judgment must be set aside if the court finds prejudice under either test.' "
2. Factual and procedural background
After the close of the presentation of evidence, during a hearing outside the presence of the jury, defense counsel informed the trial court of an incident of potential jury misconduct. Defense counsel stated that Rusoe's mother, Opal Merrill, who had been attending the proceedings, had just informed him that she had witnessed Deputy Crane conversing with a juror in the hallway earlier that day. According to defense counsel, Merrill stated that she "could hear very little" of the conversation, but that she did hear Deputy Crane discussing his "[M]arine family and his [M]arine background." Merrill estimated that the conversation had lasted approximately two minutes. Defense counsel stated that the juror involved was a "gentleman who's been proudly displaying his [United States Marine Corps] sweatshirt every day in court." Defense counsel added that, during a recess in the proceedings earlier that day, he had personally witnessed Deputy Crane "talking to [one] juror or more." Although counsel could not hear what was being said, it "appeared to [counsel] that they were talking about the deputy's cowboy hat." Defense counsel stated that he was concerned about a possible violation of the court's order prohibiting witnesses from communicating with jurors. Counsel stated that he was even more concerned about "the content of that conversation," and whether Deputy Crane may have "intentionally or unintentionally" affected a juror.
After the prosecutor informed the court that defense counsel had mentioned to him that counsel had seen Deputy Crane conversing with a juror, the court stated that it would question Juror Number 12. The court had Juror Number 12 brought into the courtroom and questioned him outside the presence of the other jurors.
It appears from the record that Juror Number 12 was the juror wearing the United States Marine Corps sweatshirt referenced by defense counsel.
Juror Number 12 confirmed that he had engaged in a conversation with Deputy Crane. When asked by the court to explain the extent of the conversation, Juror Number 12 stated, "When [Deputy Crane] first saw me, he asked me if I was in the Marine Corps, and I said yes." According to Juror Number 12, he told Deputy Crane "some of my military stuff," including that he had served in the Marine Corps for 12 years and that his last years of service were with the Nuclear Biological Chemical Warfare unit. Deputy Crane told Juror Number 12 that his father had been in the Marines and that he had almost gone into the service, but that his father had talked him out of it. Juror Number 12 said that this comprised the entirety of the conversation, and that "nothing about the case" had been discussed.
The following colloquy then occurred:
"The Court: Well, first, let me just admonish you that's technically a violation of the Court order that you're not to have any kind of contact with any witnesses or staff. So you're aware of that? You can't do that from this point forward. Do you understand that?
"[Juror Number 12]: Yeah.
"The Court: The second point is, do you think that casual conversation relating to the Marine Corps and not related to this case is in any way going to impact your ability to be a fair and impartial juror?
"[Juror Number 12]: No.
"The Court: Do you think it will in any way bias you in favor of the prosecution since you've had contact with the prosecution witness?
"[Juror Number 12]: No.
"The Court: So you feel, despite that contact, you can still fairly deliberate based upon the evidence that's been received in this case and not be influenced in any way, shape, or form by the contact with Deputy Crane?
"[Juror Number 12]: No.
"The Court: Do you think the fact that the two of you shared an affinity with the Marine Corps, his father and yourself, in any way biased you towards the prosecution?
"[Juror Number 12]: No.
"[The court]: And you still feel you can be a fair and impartial juror, as you promised you would be when we voir dired you and swore you in as a juror?
"[Juror Number 12]: Yes."
After Juror Number 12 left the courtroom, the court discussed the situation with defense counsel and the prosecutor. The court stated, "I don't think it rises to a mistrial." The court also indicated that it believed that Juror Number 12 could continue to be a fair and impartial juror despite the juror's violation of the court's order not to communicate with any witnesses.
Defense counsel requested that the court dismiss Juror Number 12. Counsel explained, "I can't be a mind reader and know whether something was intentionally done or unintentionally." Defense counsel stated that he believed that it was of "relevance" that Deputy Crane had started the conversation. Defense Counsel added that if the court did not excuse Juror Number 12, counsel would request a mistrial.
In response, the court indicated that it would also question Merrill concerning the conversation she overheard. Before doing so, the court asked the prosecutor for his thoughts on the situation.
The prosecutor stated that it sounded as if the conversation had been innocuous. The prosecutor added, "I don't see that it rises to any level where we need to excuse the juror."
The court then questioned Merrill outside the presence of the jury. Merrill told the court that she had overheard a conversation between Deputy Crane and Juror Number 12. When asked to describe what she had overheard, Merrill stated the following:
"I overheard them talking about being in the [M]arines and having a background. The deputy was stating that he was from a family, and they all were in the service. I thought he said 25 years. It was either he was talking about his father or grandfather."
Merrill indicated that this was all that she had overheard and that she had not heard Deputy Crane and the juror discussing the case. Merrill estimated that the conversation had lasted two to three minutes. The court dismissed Merrill from the courtroom.
After providing counsel with the opportunity to comment further, the court indicated that it would maintain Juror Number 12 as a juror on the case over defense counsel's objection. Although the court did not expressly rule on defense counsel's alternative request for a mistrial, the court implicitly denied the request by continuing the trial.
As noted previously (see pt. III.A.2, ante), immediately after questioning Juror Number 12, the court stated that it did not believe that a mistrial was warranted.
3. Governing law
With respect to the discharge of a juror, " '[s]ection 1089 provides in part: "If at any time . . . a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his or her duty, or if a juror requests a discharge and good cause appears therefor, the court may order the juror to be discharged . . . ." (Cowan, supra, 50 Cal.4th at p. 505.) "A juror's unauthorized contact with a witness is improper. [Citations.] However, contact between a juror and a witness or between a juror and the defendant's family may be nonprejudicial if the contact was 'de minimis' [citation] or if there is no showing that the contact related to the trial." (Id. at p. 507.)
As to whether juror misconduct requires reversal of a judgment, "[a]lthough juror misconduct raises a presumption of prejudice [citations], [a reviewing court] determine[s] whether an individual verdict must be reversed for jury misconduct by applying a substantial likelihood test. That is, the 'presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire record in the particular case, including the nature of the misconduct or other event, and the surrounding circumstances, indicates there is no reasonable probability of prejudice, i.e., no substantial likelihood that one or more jurors were actually biased against the defendant.' " (In re Boyette (2013) 56 Cal.4th 866, 889-890.) "The 'substantial likelihood' test is an objective standard. [Citation] [¶] '[B]ias may appear in either of two ways: (1) if the extraneous material, judged objectively, is so prejudicial in and of itself that it is inherently and substantially likely to have influenced a juror; or (2) even if the information is not "inherently" prejudicial, if, from the nature of the misconduct and the surrounding circumstances, the court determines that it is substantially likely a juror was "actually biased" against the defendant.' " (People v. Jackson (2016) 1 Cal.5th 269, 332 (Jackson).)
4. Application
The trial court conducted an investigation into the potential jury misconduct involving Juror Number 12 during which the court heard from both the juror and Merrill. The court's investigation revealed that the conversation was brief, did not involve the case, and revolved around the juror's military service and that of Deputy Crane's father. Further, when directly questioned by the court, Juror Number 12 continually reassured the court that he could remain fair and impartial despite the conversation with Deputy Crane.
Rusoe argues that "the court seemed to ignore one of the juror's responses to its questions." Specifically, Rusoe notes that the court asked Juror Number 12, "So you feel, despite that contact, you can still fairly deliberate based upon the evidence that's been received in this case and not be influenced in any way, shape, or form by the contact with Deputy Crane?" Juror Number 12 responded, "No." In context, it appears that the juror likely misunderstood this compound question. We reach this conclusion because Juror Number 12 had already repeatedly indicated, in response to other questions posed by the court, that his conversation with Deputy Crane would not impact his ability to be a fair and impartial juror. (See pt. III.A.2, ante.)
Under these circumstances, while the conversation between Deputy Crane and Juror Number 12 was improper and constituted misconduct, the trial court did not abuse its discretion in denying defense counsel's request to dismiss the juror and in denying counsel's alternative request that the court declare a mistrial.
We are not persuaded by Rusoe's contention that "there was a substantial likelihood that juror bias affected the verdict." The contact was " 'de minimis' " (Cowan, supra, 50 Cal.4th at p. 507) and there was "no showing that the contact related to the trial." (Ibid.) Moreover, as discussed in the previous paragraph, Juror Number 12 repeatedly assured the court that the brief conversation that he had with Deputy Crane concerning matters having nothing to do with the case would not render him unable to be a fair and impartial juror. Thus, there is no evidence that the conversation with Deputy Crane was "inherently and substantially likely to have influenced [the] juror," (Jackson, supra, 1 Cal.5th at p. 332) and there is nothing in "the nature of the misconduct and the surrounding circumstances" that suggests that Juror Number 12 " 'was "actually biased" against [Rusoe].' " (Ibid.).
Rusoe also notes that there is some suggestion in the record that other jurors may have heard Deputy Crane's comments to Juror Number 12 or that other jurors may have been involved in the conversation. Rusoe states that the court "made no attempt" to explore this aspect of potential misconduct. To the extent that Rusoe intends to raise an argument that the trial court's investigation into the jury misconduct was inadequate, we reject it. The court held a hearing on the potential misconduct, questioned two witnesses, and learned the gist of the conversation. Further, the court provided defense counsel with the opportunity to be heard with respect to the potential misconduct, and counsel did not request that the court conduct any further inquiry. Under these circumstances, Rusoe has not demonstrated that the trial court's investigation was inadequate. (See People v. Fuiava (2012) 53 Cal.4th 622, 702 [stating that " ' "it is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and whether the impartiality of the other jurors has been affected" ' " and that " ' "[t]he decision whether to investigate the possibility of juror bias, incompetence, or misconduct . . . rests within the sound discretion of the trial court" ' "].)
Accordingly, we conclude that Rusoe is not entitled to reversal of the judgment due to jury misconduct. B. Any error that the trial court committed in failing to instruct on simple assault (§ 240) as a lesser included offense to the charged offense of resisting an executive officer (§ 69) was harmless
Rusoe claims that the trial court erred in failing to instruct the jury on simple assault (§ 240) as a lesser included offense to the charged offense of resisting an executive officer (§ 69) (count 2). Rusoe maintains that there was substantial evidence from which a jury could have found that "[Deputy] Garrett used excessive force in trying to get [Rusoe] into the 'escort position' and in trying to effectuate an arm bar takedown of [Rusoe], which would have rendered unlawful the detention and subsequent arrest of [Rusoe]." Rusoe argues further that a reasonable jury could have also found that Rusoe used excessive force in resisting Deputy Garrett's excessive force, in which case the jury could have reasonably found that Rusoe committed the lesser offense of simple assault and not the greater offense of resisting an executive officer.
The People concede that the trial court erred in failing to instruct the jury on simple assault as a lesser included offense to the charged offense in count 2 of resisting an executive officer. However, the People contend that the trial court's error was harmless because the jury's guilty verdict on count 1, battery on a peace officer (§ 243, subd. (b)), demonstrates that the jury found that Garrett did not act with excessive force and was lawfully performing his duties during the encounter with Rusoe, and thus, that the trial court's instructional error was harmless.
As noted previously (see pt.I, ante), the jury found Rusoe guilty on count 1 of the battery on a peace officer (§ 243, subd. (b)) as a lesser included offense to the offense of battery on a peace officer with injury (§ 243, subd. (c)(2)).
In light of the People's concession, we assume that the trial court erred in failing to instruct the jury on the offense of simple assault as a lesser included offense of the charged offense of resisting an executive officer in count 2. However, for the reasons stated below, we conclude that such assumed error was harmless.
1. The standard of prejudice
In People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman), the California Supreme Court held, "[t]he sua sponte duty to instruct fully on all lesser included offenses suggested by the evidence arises from California law alone," and thus a trial court's error in fulfilling this duty "must . . . be evaluated under the generally applicable California test for harmless error . . . set forth in [People v. Watson (1956) 46 Cal.2d 818, 836 (Watson)]." (Id. at p. 176.) Under Watson, reversal is not warranted unless "it appears 'reasonably probable' the defendant would have obtained a more favorable outcome had the error not occurred (Watson, supra, [at p.] 836.)." (Id. at p. 178.)
2. Any instructional error was harmless
Rusoe claims that "the omission of a simple assault instruction undermined the jury's ability to make an informed determination of the appropriate verdict if it was left with a reasonable doubt regarding a critical element of the felony offense charged in Count 2 - whether [Rusoe's] act in punching Garrett constituted forcible resistance to lawful police conduct, or whether it was merely an unreasonable use of force in response to excessive force used by the officer." (Italics added.) For the reasons discussed below, we agree with the People that the record indicates that the jury would have found that Garrett was lawfully performing his duties, and thus, would have further found that the People proved this element of count 2, even if the trial court had provided an instruction on the offense of simple assault. As a result, any error in failing to provide the instruction was harmless.
Rusoe does not contend that the trial court's failure to provide the simple assault instruction could have had an effect on the jury's resolution of any other elements of the charged offense of resisting an executive officer in the performance of the officer's duty (§ 69).
In order to find Rusoe guilty of the charged offense in count 2 of resisting an executive officer (§ 69), the jury was required to find that Rusoe forcibly resisted an executive officer and that at the time Rusoe acted, "the officer was performing his lawful duty." The trial court also instructed the jury as follows:
"A peace officer is not lawfully performing his or her duties if he is unlawfully detaining someone or if he or she is using unreasonable or excessive force in his or her duties. Instruction 2670 explains when a detention is unlawful and when force is unreasonable or excessive."
Instruction 2670 (CALCRIM No. 2670) states in part, "The People have the burden of proving beyond a reasonable doubt that Mark Garrett was lawfully performing his duties as a peace officer." The instruction guided the jury with respect to how to make this determination.
As with count 2, in order to find Rusoe guilty of the lesser included offense in count 1, battery on a peace officer (§ 243, subd. (b)), the jury was required to find that Garrett was lawfully performing his duties as a peace officer. More specifically, the jury was instructed that in order to find Rusoe guilty of battery on a peace officer, the People were required to prove that at the time of the charged offense, Garrett "was a peace officer lawfully performing the duties of a San Diego Deputy Sheriff." As with count 2, the trial court also instructed the jury with respect to count 1, as follows:
"A peace officer is not lawfully performing his or her duties if he is unlawfully detaining someone or if he or she is using unreasonable or excessive force in his or her duties. Instruction 2670 explains when a detention is unlawful and when force is unreasonable or excessive."
It is undisputed that the trial court properly instructed the jury on the lesser included offence of battery on a peace officer (§ 243, subd. (b)) in count 1. Further, the jury found Rusoe guilty of the lesser included offense in count 1, battery on a peace officer (§ 243, subd. (b)). Thus, with respect to count 1, the jury rejected the defense's theory that Garrett used excessive force, and the jury found that Garrett was acting lawfully.
We assume for purposes of this decision that Rusoe is correct that the jury's determination on the precise factual issue with respect to count 1 that Rusoe contends could have been affected by the failure to give the lesser included offense instruction on count 2 "does not categorically establish that the error was harmless." (People v. Campbell (2015) 233 Cal.App.4th 148, 167 (Campbell); but see People v. Gonzalez (2016) 246 Cal.App.4th 1358, 1363 , review granted July 13, 2016, S234377 [disagreeing with Campbell and suggesting that a jury's determination of a critical factual issue adversely to the defendant under other properly given instructions necessarily renders harmless any error in failing to give a lesser included offense instruction].) However, as Rusoe acknowledges, the jury's determination that Garrett was lawfully performing his duties in connection with its guilty verdict on the lesser included offense of battery on a peace officer (§ 243, subd. (b)) in count 1 is, at a minimum, "relevant to determining whether an instructional error is harmless." (Campbell, supra, at p. 167, italics added.)
The California Supreme Court has repeatedly stated that the failure of the trial court to instruct the jury sua sponte on a lesser included offense is harmless where "the factual question posed by the omitted instruction was necessarily resolved adversely to the defendant under other, properly given instructions." (People v. Sedeno (1974) 10 Cal.3d 703, 721 (Sedeno); see e.g., People v. Covarrubias (2016) 1 Cal.5th 838, 899; People v. Wright (2006) 40 Cal.4th 81, 98; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 96 [all citing or quoting Sedeno for this point].) While the Campbell court suggested that this aspect of Sedeno has been overruled by People v. Flood (1998) 18 Cal.4th 470 and Breverman, supra, 19 Cal.4th 142, we observe that Covarrubias, Wright, and Coffman were all decided after both Breverman and Flood, and the Supreme Court relied on Sedeno for this proposition in each case.
Moreover, we are unpersuaded by the only argument that Rusoe offers in support of his contention that there is a reasonable probability that the jury would have found that Garrett was not lawfully performing his duties if the trial court had instructed on simple assault on count 2, notwithstanding the fact that the jury rendered a verdict on count 1 that demonstrates that it found that Garrett was lawfully performing his duties. Rusoe argues, "Instead of making the requisite finding that Garrett had been lawfully performing his duties, the jury may have reached a compromise verdict."
Even assuming that it is possible that the jury found Rusoe guilty on count 1 as a compromise verdict, there is nothing in the jury's verdicts that suggests such a compromise. Further, the trial court's failure to instruct the jury on simple assault with respect to count 2 did not leave the jury with an all-or-nothing choice on that count, a principal reason for requiring lesser included offense instructions. (See Breverman, 19 Cal.4th at p. 155 [stating that a trial court's duty to instruct on lesser included offenses prevents "either party from presenting the jury with an 'unwarranted all-or-nothing choice' "].) On the contrary, the jury was instructed on the charged lesser included offense on count 2 of resisting a peace officer in the performance or attempted performance of his duties (§ 148). Despite being provided with this option to find Rusoe guilty of this lesser included offense, the jury found Rusoe guilty of the greater offense of violating section 69. This, too, supports the conclusion that any error in failing to provide an instruction on simple assault was harmless.
This reasoning also appears to be the theory behind the Campbell court's conclusion that a jury's determination of a factual issue adversely to a defendant under other instructions does not categorically establish that an error in giving a lesser included offense instruction was harmless. (See Campbell, supra, 233 Cal.App.4th at p. 168, fn.12 ["Although the law ordinarily presumes that jurors follow the court's instructions, the law requiring instructions on lesser included offenses is based, in part, on the possibility that they will not"].)
The principal distinction between the two offenses is that in order to find Rusoe guilty of a violation of section 69, the jury was required to find that Rusoe "unlawfully used force or violence to resist," while in order to find Rusoe guilty of a violation of section 148, the jury was merely required to find that Rusoe "willfully resisted."
In addition, in considering what the jury is "likely to have done in the absence of the error under consideration[,] . . . an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result." (Breverman, supra, 19 Cal.4th at p. 177 [describing the application of Watson to a trial court's failure to give a lesser included offense instruction].) With respect to the critical issue of whether Deputy Garrett was lawfully performing his duties, there is strong evidence to support the jury's verdict and relatively weak evidence supporting a more favorable outcome for Rusoe.
It was undisputed that on the night in question, Deputy Garrett was responding to a disturbance call while acting as a uniformed peace officer. Overwhelming evidence also established that Rusoe was highly agitated and had been, according to his wife, Beverly, "hollering" for some time. Before entering Rusoe's residence, Deputy Garrett watched Rusoe through a sliding glass door and could hear him yelling words having "religious undertones." Deputy Garrett could see that Rusoe was "extremely agitated" and suspected that Rusoe might be experiencing a psychotic episode.
Beverly testified that she was not surprised when law enforcement officers arrived at their residence on the day of the incident because Rusoe had been "hollering" for a while. Beverly also testified that before law enforcement officers arrived, Rusoe had told a security guard, "I'm going to burn this [motherfucker] down." While there is no evidence that Deputy Garrett was aware of this threat at the time of his interaction with Rusoe, Beverly's testimony was part of the overwhelming evidence presented that Rusoe was in a highly agitated state at the time of the encounter with Deputy Garrett and Deputy Crane.
With respect to the critical moments just before Rusoe punched Deputy Garrett, Deputies Garrett and Crane both testified that Deputy Garrett "calm[ly]" asked Rusoe to sit on the couch. Deputies Garrett and Crane also both testified that Rusoe became even more agitated in response to this request, directed profanity toward Deputy Garrett, and refused to sit down. Both deputies testified that after Rusoe refused to sit down, Deputy Garrett placed his hands on Rusoe in an attempt to forcibly move him to the couch. Deputy Garrett testified that moments later, Rusoe "clenched his fist and flexed his muscles." According to Deputy Garrett, he then attempted to perform "an arm bar takedown," in order to "sweep [Rusoe] down to the ground," but Rusoe "swung his body around," causing the deputy to lose control of Rusoe's arm. According to Garrett, Rusoe then "swung his body around on me and threw a punch in [Deputy] Garrett's face."
Deputy Garrett testified that Rusoe said, "Sit the fuck down." Deputy Crane testified that Rusoe said something like, "This is my house. Get the fuck out. You sit the fuck on the ground. Fuck you."
Deputy Crane testified that, after Deputy Garrett began to "push [Rusoe] towards the couch to have him sit down," Rusoe "abruptly and violently pulled and spun and struck Deputy Garrett with all the momentum of him spinning with a closed fist."
The only other percipient witness to testify, Beverly, did not dispute any of the deputies' testimony recounted above. Beverly stated that she heard one of the deputies tell Rusoe to sit down. When asked what happened after that, Beverly testified, "And it happened so quick I could not - I don't know. It was that quick." Beverly stated that within "seconds," a fight occurred. While Beverly testified that she did not see Rusoe swing at Garrett, she did not state that Rusoe did not swing at Deputy Garrett.
In rebuttal testimony, Deputy Crane testified that he interviewed Beverly shortly after the incident. According to Deputy Crane, Beverly said that she had not seen Rusoe punch anyone but that she had seen him "start swinging."
In light of this evidence, Rusoe suggests that it is reasonably likely that the jury would have found that "Garrett used excessive force in trying to get [Rusoe] into the 'escort position' and in trying to effectuate an arm bar takedown of [Rusoe]." We are not persuaded. The defense's use of force expert, Smith, testified with respect to the "use of force continuum." Smith stated that "[i]f verbalization doesn't work," an officer "can use what we call soft hand techniques to move [the person]." Smith continued, "If you say, 'I want you to sit down,' you can put your hand on their arm and you could move them to a - if they're lawfully detained or lawfully arrested, you can move them to a location where you want them to be and cause them to sit down." Smith also testified that when a person actively resists, for example, by "actively moving away," the officer may use "pain compliance holds, [and] distraction blows." This testimony strongly supports a finding, reflected in the jury's verdicts in both counts 1 and 2, that Deputy Garrett acted lawfully in the moments before being punched.
We acknowledge that Smith testified that, in his opinion, a hypothetical officer acting in the manner in which Deputy Garrett acted on the night in question would have failed to follow proper training protocols governing officers' contacts with mentally ill persons. Smith supported this opinion by stating that in the hypothetical provided, there was no evidence that the officer told the suspect that the officer was "there to help," the officer failed to adequately calm the situation, and that the officer began to touch the suspect without "gain[ing] some kind of a rapport." Smith also stated that "based upon the policy of the San Diego County Sheriff's Department," it was his opinion that "proper procedures weren't followed to effect a detention or arrest as the officers were trained," and that as a result, "the force that was used was not consistent with the lawful use of force as described in their policy and procedures," and "the . . . force used by the deputy was excessive and improper." Notwithstanding this aspect of Smith's testimony, given the remainder of the evidence in the case, and, most important, the jury's other verdicts in the case, we see no reasonable probability that the jury would have relied on this aspect of Smith's testimony in rendering a more favorable verdict on count 2 if the trial court had instructed the jury on simple assault.
In this vein, we note that during a jury instruction conference, in discussing whether there was evidence in the record that would support instructing the jury with respect to determining whether Deputy Garrett was lawfully performing his duties, the trial court stated:
"I tend to agree with [defense counsel]. I think that we should include them. . . . Because we had expert testimony on it. I don't think the jury will agree with the defense's positions, but it's in evidence."
Thus, while the trial court found that there was substantial evidence to warrant giving an instruction requiring the jury to determine whether Deputy Garrett was lawfully performing his duties, the trial court did not think that the jury would find that Deputy Garrett was acting unlawfully. In light of the entire record of the case, for the reasons stated above, we conclude that there is not a reasonable probability that the jury would have found, contrary to their verdict on count 1, that Deputy Garrett had been acting unlawfully with respect to the charged offense of resisting arrest (§ 69) in count 2 if the court had instructed the jury on simple assault on count 2. (See Breverman, supra, 19 Cal.4th at p. 177 [stating that while a trial court's duty to instruct on lesser included offenses arises when a reasonable jury could find that the defendant is guilty of the lesser offense, but not the charged offense, "[a]ppellate review under Watson, on the other hand, takes an entirely different view of the evidence," in which the focus is "not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration" (italics added)].)
Under these circumstances, we conclude that it is not " 'reasonably probable' " that Rusoe would have achieved a more favorable result if the trial court had instructed the jury on simple assault. (Breverman, supra, 19 Cal.4th at p. 178.) Accordingly, we conclude that any error that the trial court committed in failing to instruct on simple assault (§ 240) as a lesser included offense of the charge of resisting an executive officer in the performance of the officer's duty (§ 69) was harmless. C. The trial court erred in failing to stay execution of the sentence on count 1 pursuant to section 654
Rusoe claims that the trial court erred in failing to stay execution of the sentence on count 1 pursuant to section 654 because Rusoe harbored a single intent and objective in committing both counts 1 and 2. The People argue that the "trial court properly imposed a concurrent term on count 1 under the multiple-victim exception to section 654."
Although Rusoe failed to raise a section 654 claim in the trial court, "[i]t is well settled . . . that [a] court acts in 'excess of its jurisdiction' and imposes an 'unauthorized' sentence when it erroneously stays or fails to stay execution of a sentence under section 654." (People v. Scott (1994) 9 Cal.4th 331, 354, fn. 17.) Accordingly, Rusoe is not precluded from raising a section 654 claim for the first time on appeal. (See People v. Flowers (1982) 132 Cal.App.3d 584, 589 ["The question of the applicability of Penal Code section 654 was not raised at the sentencing hearing, but the absence of any objection does not obviate our duty to review the section 654 question"].)
For the reasons stated below, we conclude that undisputed evidence in the record establishes that Rusoe harbored a single intent and objective in committing both counts 1 and 2. We further conclude that record establishes, as a matter of law, that the jury found Rusoe guilty of the crimes charged in counts 1 and 2 against a single victim, Deputy Garrett, and that the multiple-victim exception to section 654 does not apply under these circumstances.
1. Governing law
Section 654 provides in pertinent part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) Section 654 thus "precludes multiple punishments for a single act or indivisible course of conduct." (People v. Hester (2000) 22 Cal.4th 290, 294.) To determine whether a course of conduct is indivisible, courts consider the intent and objective of the defendant. If all of the criminal acts were incident to a single criminal objective, the court may impose punishment only as to one of the offenses. (People v. Beamon (1973) 8 Cal.3d 625, 636-637.)
In People v. Oates (2004) 32 Cal.4th 1048, 1062 (Oates), the Supreme Court provided an overview of the multiple-victim exception to section 654's prohibition against multiple punishment:
"We have long held that 'the limitations of section 654 do not apply to crimes of violence against multiple victims.' [Citation.] As we have explained: 'The purpose of the protection against multiple punishment is to insure that the defendant's punishment will be commensurate with his criminal liability. A defendant who commits an act of violence with the intent to harm more than one person or by a means likely to cause harm to several persons is more culpable than a defendant who harms only one person. For example, a defendant who chooses a means of murder that places a planeload of passengers in danger, or results in injury to many persons, is properly subject to greater punishment than a defendant who chooses a means that harms only a single person. This distinction between an act of violence against the person that violates more than one statute and such an act that harms more than one person is well settled. Section 654 is not ". . . applicable where . . . one act has two results each of which is an act of violence against the person of a separate individual." ' " (Oates, supra, at p. 1063.)
2. Applicable standards of review
In reviewing the trial court's implicit finding that Rusoe harbored a distinct intent and objective in committing counts 1 and 2, we determine whether there is substantial evidence to support the trial court's finding. (See People v. Osband (1996) 13 Cal.4th 622, 730-731.) In interpreting section 654, and the meaning of the multiple-victim exception, we apply a de novo standard of review. (See People v. Dowdell (2014) 227 Cal.App.4th 1388, 1414 [" 'the dimension and meaning of section 654 is a legal question' "].)
3. Factual and procedural background
The probation report did not reference section 654 in recommending a sentence in this case. In addition, neither party mentioned section 654 in its sentencing briefs or the during the sentencing hearing. However, in imposing a concurrent term of 365 days on count 1, the trial court implicitly found that section 654 did not apply.
4. Application
Both Deputy Garrett and Deputy Crane testified, without contradiction, that Rusoe punched Garrett in response to Deputy Garrett's attempt to escort Rusoe to the couch, and that Rusoe's punch coincided with a brief period of time during which Rusoe resisted Deputy Garrett in his attempt to perform his duties. (See pt. III.B.2, ante.) Thus, the undisputed evidence reveals that Rusoe committed the battery as a means of resisting. (See People v. Martin (2005) 133 Cal.App.4th 776, 781 (Martin) [concluding that defendant acted with the "sole objective in both resisting arrest and committing battery on a police officer was to free himself" in case in which defendant acted in "close temporal proximity" in committing battery while officers attempted to arrest defendant]; see generally People v. Rodriguez (2015) 235 Cal.App.4th 1000, 1006 ["where a defendant commits another crime as 'the means of perpetrating the crime,' section 654 applies," citing Neal v. State of California (1960) 55 Cal.2d 11, 19-20].) Thus, the undisputed evidence in the record establishes that Rusoe harbored the same intent and objective in committing both offenses, namely, resisting detention and/or arrest.
On appeal, the People do not contend that there is substantial evidence that Rusoe had a distinct intent and objective in committing counts 1 and 2. Rather, the People contend that the trial court's failure to apply section 654 may be affirmed pursuant to the multiple-victim exception to section 654. The People maintain that the exception is "applicable because appellant committed acts of violence against more than one victim in that he resisted arrest by two different officers (Deputies Crane and Garrett) and battered one of them (Deputy Garrett)."
In order to evaluate the People's argument, we first determine whether the jury found Rusoe guilty of the crimes in counts 1 and 2 against multiple victims. The operative amended information in the case alleges in count 1 "battery on peace officer with injury," and in count 2, with "resisting [an] executive officer." (Capitalization & boldface omitted.) Both counts are phrased exclusively in the singular. Further, the jury found Rusoe guilty in count 1 of "battery against a peace officer" as a "lesser included offense of the charge of battery on a peace officer, as charged in count one of the amended information." (Capitalization omitted.) In count 2, the jury found Rusoe guilty of "resisting [an] executive officer . . . as charged in count two of the amended information." (Capitalization omitted.) As with the amended information, all of the verdicts were phrased exclusively in the singular.
Most important, as discussed in part II.B.2, ante, the jury was instructed as follows with respect to both of the offenses of which the jury found Rusoe guilty (i.e., battery on a peace officer (§ 243, subd. (b)) (count 1) and resisting an executive officer (§ 69) (count 2)):
"The People have the burden of proving beyond a reasonable doubt that Mark Garrett 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 each offense." (Italics added.)
No other jury instruction indicated that the jury could find Rusoe guilty of either count 1 or count 2 based on his actions with respect to Deputy Crane. Thus, the jury was specifically instructed that the offenses with which Rusoe was charged pertained solely to Deputy Garrett.
In addition, the prosecutor's closing argument made clear to the jury that Deputy Garrett was the victim with respect to both charges:
"And the crimes that he's been charged with are pretty much the same charge. At least they're all stemming from the same act, punching Deputy Garrett in the face." (Italics added.)
In contrast, the People have not identified, nor has our own review uncovered, any basis in the record from which one could conclude that the jury found Rusoe guilty of any crime as to which Deputy Crane was the victim. Under these circumstances, we conclude that the record establishes, as a matter of law, that the jury found Rusoe guilty of the crimes in counts 1 and 2 against a single victim, namely, Deputy Garrett.
We next consider the legal question of whether the multiple-victim exception may be applied where the jury has found the defendant guilty of a crime against a single victim because there is substantial evidence from which the trial court could find at sentencing that the defendant committed crimes against multiple victims. To begin with, while we are aware of no Supreme Court case directly addressing this question, the Supreme Court has frequently phrased the multiple-victim exception in a manner that suggests that a jury must find the defendant guilty of a crime against different victims in order for the exception to apply. (See People v. Ramos (1982) 30 Cal.3d 553, 587 [stating that under the multiple-victim exception, a defendant "may be convicted and punished for each crime of violence committed against a different victim" (boldface omitted)]; People v. Miller (1977) 18 Cal.3d 873, 886 [stating that the multiple-victim exception applied where "the victim of the robbery as alleged, proved and found to be true was . . . Keating," and the "the burglary alleged, proved and found to be true is a crime of violence committed against Burk" (italics added)]; In re Ford (1967) 66 Cal.2d 183, 183-184 ["Petitioner was properly sentenced on both the kidnaping count and the robbery count because the People alleged and proved and the jury found that he kidnaped victims A, B, and C for the purpose of robbery (count I) as well as robbing C (count II)" (italics added)]; cf. Oates, supra, 32 Cal.4th at p. 1064 [We have long held that " 'the limitations of section 654 do not apply to crimes of violence against multiple victims' " (italics added)].)
The Supreme Court has also rejected the argument that a trial court may find that "a generalized harm to the 'community' rendered it a victim for purposes of the multiple victim exception to section 654." (People v. Mesa (2012) 54 Cal.4th 191, 200 [rejecting argument "that multiple punishment is permitted under section 654 because the shootings harmed both the individual victims and the entire community," pursuant to rule that "section 654 does not apply to crimes of violence against multiple victims"].)
There is authority that a trial court may infer that a jury did find a defendant guilty of crimes against multiple victims in concluding that the multiple-victim exception applies. (See People v. Centers (1999) 73 Cal.App.4th 84, 101 (Centers) [stating "the trial court could properly find multiple victims even though the information did not specify, and the jury did not make any finding regarding, the identity of any victim of the burglary or the personal firearm use"]; People v. Deegan (2016) 247 Cal.App.4th 532, 545 (Deegan) [affirming trial court's determination that multiple-victim exception applied where trial court "specifically [found] that [defendant's] count III conviction, for resisting an officer with threats or force, was for conduct involving all three officers" (italics added)].)
These cases are premised on the law that " 'in determining whether Penal Code section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury.' " (Deegan, supra, 247 Cal.App.4th at p. 545, quoting Centers, supra, 73 Cal.App.4th 84, 101, italics added.) However, "where there is a basis [in the record] for identifying the specific factual basis for a verdict, a trial court cannot find otherwise in applying section 654." (People v. McCoy (2012) 208 Cal.App.4th 1333, 1339 (McCoy), italics added; see also id. at p. 1340 ["in the absence of some circumstance 'foreclosing' its sentencing discretion . . . , a trial court may base its decision under section 654 on any of the facts that are in evidence at trial, without regard to the verdicts"].)
The McCoy court relied on case law in which the charging instrument, verdicts, closing arguments, and jury instructions were discussed in determining the factual basis for the jury's verdicts. (McCoy, supra, 208 Cal.App.4th at p. 1339.)
In People v. Cardenas (2015) 239 Cal.App.4th 220, 233 (Cardenas), the Court of Appeal rejected the People's argument that the multiple-victim exception could be applied where "the fact that makes the exception applicable was not alleged in the information, was not submitted to the trier of fact, and did not become an issue in the case until after the conclusion of the trial." In Cardenas, the People argued that section 654 did not apply because the defendant committed a robbery against a woman (Senger) and a violent burglary against both Senger and a separate victim, Hengstebeck. In rejecting this argument, the Cardenas court distinguished Centers:
" '[B]urglary is a violent crime for purposes of the "multiple victim" exception when the jury finds that, in the commission of the burglary, the defendant personally used a firearm.' " (Cardenas, supra, 239 Cal.App.4th at p. 231.)
"Assuming Hengstebeck was present during the offenses, there were two violent crimes against one victim [Senger]. . . . [¶] We did state in Centers that '[o]rdinarily, in determining whether Penal Code section 654 applies, the trial court is entitled to make any necessary factual findings not already made by the jury. [Citation.]' (Centers, supra, 73 Cal.App.4th at p. 101.) However, we made that statement in support of our holding that the trial court could properly find the burglary was committed against multiple victims, even though the identities of the victims were not alleged in the information or found by the jury. (Ibid.) We did not say or imply that a court's authority to make factual findings should permit it to treat an ordinarily nonviolent crime as a crime of violence by relying on a fact that, though shown by the evidence, is not stated in the information and has not been found true by the trier of fact." (Cardenas, supra, at p. 232.)
In this case, we assume for purposes of this decision that it was "shown by the evidence," (Cardenas, supra, 239 Cal.App.4th at p. 232) that Rusoe violated section 69 by resisting both Deputy Garett and Deputy Crane. However, the jury's verdicts indicate that the jury found that the victim of both counts 1 and 2 was the same person, Deputy Garrett. In light of the case law discussed above, because the record is clear that the "the specific factual basis for a verdict" (McCoy, supra, 208 Cal.App.4th at p. 1339) was that Deputy Garrett alone was the victim of both counts, the multiple-victim exception does not apply.
Martin, 133 Cal.App.4th 776, on which the People rely heavily in their brief, is distinguishable. "[T]he court in Martin 'did not discuss either the charging document, the court's instructions to the jury, or what findings the jury may have made regarding the resisting.' " (Deegan, supra, 247 Cal.App.4th at p. 544.) Thus, Martin is not authority for the proposition that a trial court may find that there were multiple victims of a crime in a case in which the jury's verdicts indicate that there was but a single victim. --------
Accordingly, we conclude that the trial court erred in failing to stay the execution of the sentence on count 1 pursuant to section 654.
IV.
DISPOSITION
The judgment is modified to stay execution of the sentence imposed on count 1 pursuant to section 654. As so modified, the judgment is affirmed.
AARON, J. WE CONCUR: HALLER, Acting P. J. O'ROURKE, J.