Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Solano County Super. Ct. No. VCR176646
McGuiness, P.J.
Following a jury trial, appellant Gerald Kenneth Small was convicted of using force or violence to resist executive officers in the performance of their duties. (Pen. Code, § 69.) Appellant claims the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of misdemeanor resisting arrest. (§ 148, subd. (a)(1).) He further argues the trial court erred by failing to instruct the jury sua sponte that a peace officer is not engaged in the performance of his duties if a detention is unlawful or if the officer uses unreasonable or excessive force to make the detention. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
Lisa Denny, a psychotherapist employed at a Kaiser Permanente (Kaiser) facility in Vallejo, treats patients for chemical dependency. On December 11, 2004, Denny saw appellant after his regular therapist and other Kaiser staff reported that appellant had been behaving erratically. Appellant had been hospitalized within the previous month after he cut his arm in what he described as a suicide attempt. Denny found appellant to be depressed, overwhelmed, and at times evasive and agitated. He expressed homicidal ideation toward his ex-wife and some suicidal ideation, saying he did not know whether he should throw his wife off a bridge or jump off a bridge himself.
Concerned that appellant might be a danger to himself or others, Denny spent between a half-hour and 40 minutes trying to convince appellant to admit himself for hospitalization. He declined. Appellant then participated in a group therapy session after Denny urged him to attend. While appellant was in the group session, Denny consulted with her supervisor and the program director about what to do. They decided appellant should be evaluated under Welfare and Institutions Code section 5150 and requested police assistance.
Welfare and Institutions Code section 5150 generally provides that, upon a showing of probable cause that a person is a danger to himself or others as a result of a mental disorder, that person may be taken into custody for a 72-hour period for treatment and evaluation at a state-approved mental health facility.
Two Vallejo police officers, Officer Jeremy Huff and Sergeant Lee Horton, responded to the call. Denny reviewed the circumstances with the officers and requested that they perform a “5150 evaluation.” The plan was that the officers would come to Denny’s office while she was meeting with appellant. Denny then called appellant out of the group session and led him back to her office. Out of a concern appellant would leave the premises, Denny did not tell him the police had been contacted. At that point, appellant told Denny he no longer had any intention of hurting his ex-wife, but he was still unclear about whether he wanted to go to the hospital immediately. After about ten minutes, the two officers appeared in the doorway of Denny’s office. The officers were wearing uniforms identifying themselves as police officers.
Appellant stood up and told Denny, “Thanks for your honesty.” According to Officer Huff, appellant became agitated. Appellant stuck his left hand in his pants’ pocket. Officer Huff told appellant to take his hand out of his pocket. Appellant did not comply but instead fumbled around inside his pocket as though he were looking for something. Officer Huff then grabbed appellant’s left wrist and again told him to take his hand out of the pocket. After fumbling around in his pocket, appellant withdrew his hand while holding a box cutter. The blade was withdrawn but appellant was holding his thumb on the “activator switch” that “pops out the blade.” Denny ran out of the room as the struggle began.
Officer Huff ordered appellant to drop the box cutter, but he did not comply. Officer Huff then placed appellant’s arm into an “arm-bar lock-out” position. Appellant was “aggressive” and pulled in the opposite direction. Officer Huff began to bend appellant’s wrist, and eventually the box cutter fell out of his hand. Until Officer Huff had managed to dislodge the box cutter, appellant’s thumb remained on the button that exposed the blade.
As appellant attempted to pull away from Officer Huff using force, the officer struck the left side of appellant’s face with a closed fist in what the officer described as a “distractionary strike.” The blow caused appellant’s head to be thrown back, enabling Sergeant Horton to place appellant’s head in a headlock. The two officers and appellant fell down onto a couch. Appellant continued to resist as he attempted to twist and free himself. Eventually, Sergeant Horton grabbed appellant’s right arm and forced it behind his back. At that point, Officer Huff managed to cuff appellant’s hands. After being handcuffed, appellant refused to walk out of the office. Officer Huff had to use a “pain-compliance” technique to force appellant to walk out of the office. According to Denny, appellant continued to struggle with the officers in the hall.
While being transported to the police station, appellant spontaneously told the officers several times that he was sorry for having been combative but that he did not want to go back to jail. He made a reference to suicidal thoughts and showed one of the officers a scar on his arm from a previous suicide attempt.
The Solano County District Attorney charged appellant by information with knowingly resisting, by use of force or violence, executive officers in the performance of their duties. (§ 69.) A jury trial commenced on November 16, 2005.
Appellant testified in his own defense at trial. He claimed he felt deceived when the police officers entered Denny’s office. However, he stated he was not agitated and felt resigned to the situation. He claimed to have stood up, reached into his pocket, and “beg[u]n to say, ‘I’m sure you’re going to want this, ’ ” as he pulled out his box cutter. He explained that he carried a box cutter in connection with his job as a field supervisor for an “environmental company, ” although he admitted he was not working on the date he was arrested. Appellant did not recall struggling with the officers and claimed he did not resist. He had no intention of fighting the officers and was “just confused and a little disoriented by what all was happening.” Appellant believed that the Kaiser staff and the officers had overreacted to the situation, although he admitted apologizing to the officers for doing anything that might have caused them to react in the way they did. He estimated the entire incident lasted fifteen seconds, including from the time the officers appeared at Denny’s office door until he was placed in handcuffs.
Neither Denny nor the officers heard appellant make such a statement.
The jury found appellant guilty as charged. On April 13, 2006, the trial court denied a motion for new trial and a request to dismiss the action. The court suspended imposition of sentence and placed appellant on three years formal probation conditioned on successful completion of a residential treatment program for alcohol and drug dependence. Appellant filed a timely notice of appeal.
Discussion
1. The Trial Court Was Not Required to Instruct the Jury on Misdemeanor Resisting Arrest.
California law requires a trial court to instruct the jury sua sponte “on all lesser necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) Appellant contends the trial court committed reversible error by failing to instruct sua sponte on misdemeanor resisting arrest (§ 148, subd. (a)(1)) as a lesser included offense of knowingly resisting an executive officer by means of force or violence. (§ 69.) As we explain below, because the offense described in section 148, subdivision (a)(1) is not a lesser included offense of the crime with which appellant was charged, the trial court had no duty to instruct the jury on misdemeanor resisting arrest.
There are two tests to determine whether a crime qualifies as a necessarily included lesser offense of the charged offense—the “elements” test and the “accusatory pleading” test. (People v. Lopez (1998) 19 Cal.4th 282, 288.) A crime will be considered a necessarily included lesser offense if it satisfies at least one of the tests. (Ibid.) “The elements test is satisfied when ‘ “all the legal ingredients of the corpus delicti of the lesser offense [are] included in the elements of the greater offense.” [Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also necessarily committing a lesser offense, the latter is a lesser included offense within the former. [Citations.]” (Ibid.) “Under the accusatory pleading test, a lesser offense is included within the greater charged offense ‘ “if the charging allegations of the accusatory pleading include language describing the offense in such a way that if committed as specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]” (Id. at pp. 288-289.)
Section 148, subdivision (a)(1) provides in relevant part that “[e]very person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment” is guilty of a misdemeanor. Section 69 provides in pertinent part that “[e]very person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, ” is guilty of an offense punishable as either a felony or a misdemeanor. (Italics added.)
Section 69 has disjunctive temporal elements, encompassing “ ‘attempts to deter either an officer’s immediate performance of a duty imposed by law or the officer’s performance of such a duty at some time in the future.’ [Citations.]” (People v. Belmares (2003) 106 Cal.App.4th 19, 24 (Belmares), disagreed with on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228.) By contrast, section 148, subdivision (a)(1) “requires commission of the crime at the time of a peace officer’s discharge or attempted discharge of a duty of his or her office or employment. [Citation.]” (Belmares, supra, 106 Cal.App.4th at p. 23.) Relying on the temporal distinction between the two offenses, the Fifth District Court of Appeal in Belmares concluded: “By the statutory elements test, then, we hold resisting is not a lesser included offense of deterring since one can deter an officer’s duty in the future (§ 69) without resisting the officer’s discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1)). [Citation.]” (Belmares, supra, 106 Cal.App.4th at p. 24.) In People v. Lopez (2005) 129 Cal.App.4th 1508, 1532 (Lopez), the Sixth District Court of Appeal agreed with Belmares that section 148, subdivision (a)(1) is not a lesser included offense of section 69, instead characterizing it as a lesser related offense.
“A criminal defendant has no right to requested instructions on lesser related offenses without the prosecutor’s permission. [Citation.]” (Lopez, supra, 129 Cal.App.4th at p. 1532.)
Appellant urges that we reject the holdings in Belmares and Lopez and instead follow People v. Esquibel (1992) 3 Cal.App.4th 850 (Esquibel), a decision of Division Seven of the Second District Court of Appeal. In Esquibel, the court assumed without deciding that section 148 is a lesser included offense of section 69. (Esquibel, supra, 3 Cal.App.4th at pp. 854-855; see also Lopez, supra, 129 Cal.App.4th at p. 1532.) Because the Esquibel court had no occasion to consider whether section 148, subdivision (a)(1) is a lesser included offense of section 69, its decision is not authority for that proposition. (See Hartwell Corp. v. Superior Court (2002) 27 Cal.4th 256, 281 [opinion is not authority for proposition not considered therein].) Moreover, we see no reason to reject the analysis in Belmares and Lopez. It is possible to commit a violation of section 69 without necessarily committing a violation of section 148, subdivision (a)(1) if the offense arises solely out of an attempt to deter the performance of an officer’s duty in the future. Thus, under the elements test, section 148, subdivision (a)(1) is not a necessarily included lesser offense of section 69.
The jury in Esquibel had the option of finding the defendant guilty of either section 69, section 243.1 (battery upon a custodial officer), or section 148, which the trial court characterized as a lesser included offense of section 243.1 but not section 69. (Esquibel, supra, 3 Cal.App.4th at p. 855.) The appellate court held it was of no significance that the trial court characterized section 148, subdivision (a)(1) as a lesser included offense of section 243.1 but not of section 69, because the jury was free to find that the defendant committed all, some, or none of the offenses. (Esquibel, supra, 3 Cal.App.4th at p. 855.)
Applying the “accusatory pleading” test, we likewise conclude that section 148, subdivision (a)(1) is not a necessarily included lesser offense of the crime with which appellant was charged. The information charged appellant with deterring and preventing as well as resisting the performance of a duty. Thus, the accusatory pleading incorporated both temporal elements of section 69. It is irrelevant that the information charged the temporal elements in the conjunctive instead of the disjunctive. As the court in Lopez recognized, “[w]hen a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. [Citation.]” (Lopez, supra, 129 Cal.App.4th at pp. 1532-1533.) Because the charging allegations include language describing the offense in such a way that it could be committed without necessarily committing a violation of section 148, subdivision (a)(1), the lesser offense is not necessarily included within section 69 under the accusatory pleading test.
The information consisted of one count, as follows: “On or about December 11, 2004, defendant(s) GERALD KENNETH SMALL did commit a felony namely RESISTING EXECUTIVE OFFICER, a violation of Section 69 of the Penal Code of the State of California, County of Solano, in that said defendant did unlawfully attempt by means of threats and violence to deter and prevent Officer Huff and Sgt. Horton, who was [sic] then and there an executive officer, from performing a duty imposed upon such officer by law, and did knowingly resist by use of force and violence said executive officer in the performance of his/her duty.” (Emphasis added.)
Appellant focuses not upon the allegations of the accusatory pleading but instead upon the trial court’s jury instruction defining the elements of the crime. Apparently upon its own initiative, the trial court tailored the jury instruction defining a violation of section 69 to include only “resisting” but not “deterring or preventing” an executive officer in the performance of his or her duty. Thus, the court instructed the jury as follows: “The defendant is accused in Count 1 of having violated Section 69 of the Penal Code, a crime. Every person who knowingly resists, by the use of force or violence, an executive officer in the performance of his or her duty is guilty of a violation of Penal Code section 69, a crime.” As so defined, the crime does not include a disjunctive temporal element but instead has a singular temporal connotation referring to the immediate performance of a lawful duty. Section 148, subdivision (a)(1) is a necessarily included lesser offense of the charged crime as defined by the court in its jury instruction. The question remains whether the trial court had a sua sponte duty to instruct the jury on misdemeanor resisting arrest (§ 148, subd. (a)(1)) after it modified the instruction defining section 69. We conclude it had no such duty.
Applying both the elements test and the accusatory pleading test, section 148, subdivision (a)(1) is not a necessarily included lesser offense of the charged crime. It is irrelevant that the trial court narrowed the definition of the crime charged in the information by modifying the jury instructions. As its name implies, the accusatory pleading test hinges upon the wording of the accusatory pleading, not upon the wording of a jury instruction defining the crime. “The accusatory pleading test arose to ensure that defendants receive notice before they can be convicted of an uncharged crime.” (People v. Reed, supra, 38 Cal.4th at p. 1229.) A defendant has adequate notice that he or she may be convicted of a lesser offense if the specific language of the accusatory pleading necessarily encompasses the elements of the lesser offense. (Ibid.) The notice function allows the parties to go to trial prepared to prosecute and defend only the charged offenses and any lesser included offenses. This function is undermined if a defendant can be convicted of an uncharged crime based solely on a jury instruction narrowing the definition of the crime charged in the accusatory pleading. By the time the court agrees upon jury instructions, usually well into trial and often after all the evidence has been presented, it is too late to provide meaningful notice of uncharged offenses of which the defendant may be convicted.
Our conclusion is consistent with the principle that “[t]he determination of whether an offense is lesser included is made from either the wording of the information or the statutory language, and not from the evidence adduced at trial. [Citations.]” (People v. Steele (2000) 83 Cal.App.4th 212, 217-218.) The issue is decided in the abstract, and it is of no consequence that the evidence at trial might support a conviction for a lesser crime than that charged. (Id. at p. 218.) Obviously, the notice function of the accusatory pleading test would not be served by a rule permitting lesser included offenses to be determined only after presentation of all the evidence at trial. Likewise, a rule allowing lesser included offenses to be determined based upon the language of an instruction given to the jury is inconsistent with the purpose of the accusatory pleading test.
Accordingly, we conclude the trial court had no duty to instruct the jury on the crime of misdemeanor resisting arrest (§ 148, subd. (a)(1)). Because section 148, subdivision (a)(1) is not a necessarily included lesser offense of the charged crime, we also reject the suggestion that appellant received ineffective assistance of counsel as a consequence of his trial counsel’s failure to seek an instruction on the lesser crime.
2. The Trial Court Did Not Have a Sua Sponte Duty to Instruct the Jury It Must Find that the Detention was Lawful and that the Force Used to Detain Appellant Was Reasonable.
“The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ‘ “engaged in . . . the performance of . . . [his or her] duties” ’ unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.] ‘The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties, ” for purposes of an offense defined in such terms, if the officer’s conduct is unlawful. . . .’ [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 816.) An arrest or detention made with excessive force is unlawful, even if an officer otherwise has probable cause to make the arrest or detention. (People v. White (1980) 101 Cal.App.3d 161, 167.)
Here, the trial court instructed the jury in part as follows: “A peace officer who is making a detention may use reasonable force to make the detention or to prevent escape or to overcome resistance. The officer need not retreat or desist from his efforts by reason of the resistance or threatened resistance of the person being detained.” Appellant claims this “truncated instruction” left out crucial legal components by failing to inform the jury that the detention must have been lawful and that the People have the burden of proving the officers used reasonable force in making the detention. Specifically, appellant contends the trial court erred by neglecting to read CALJIC Nos. 9.25 and 9.29.
CALJIC No. 9.25 (Method of Arrest) provides in general that an officer must inform a person being arrested of the cause of the arrest and of the officer’s authority to make the arrest, although an officer need not so inform the person being arrested when there is reasonable cause to believe the person arrested is actually engaged in the commission or attempted commission of a crime or is fleeing after committing a crime. CALJIC No. 9.29 (Performance of Duties of Office—Burden of Proof) provides: “In a prosecution for violation of Penal Code section ____, the People have the burden of proving beyond a reasonable doubt that the peace officer was engaged in the performance of, [his] [her] duties. [¶] A peace officer is not engaged in the performance of [his] [her] duties if [he] [she] [makes or attempts to make an unlawful [arrest] [detention] [or] [uses unreasonable or excessive force in making or attempting to make the [arrest] [detention]]. [¶] If you have a reasonable doubt that the peace officer was [making or attempting to make a lawful [arrest] [detention]] or [using reasonable force in making or attempting to make the [arrest] [detention]] and thus a reasonable doubt that the officer was engaged in the performance of [his] [her] duties, you must find the defendant not guilty of any crime which includes an element that the peace officer was engaged in the performance of [his] [her] duties.”
The trial court’s duty to instruct sua sponte on particular defenses, including defenses negating an element of the charged crime, is more limited than the court’s duty to instruct on lesser included offenses. (People v. Barton (1995) 12 Cal.4th 186, 195.) The duty to instruct on particular defense on the court’s own initiative arises “ ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citations.]” (Ibid.)
As to whether the detention was lawful, we conclude the court had no sua sponte duty to offer a further instruction on the issue. At trial, appellant did not urge that the officers lacked probable cause to detain him pursuant to Welfare and Institutions Code section 5150. Rather, appellant conceded he was being treated for depression and that he had expressed homicidal and suicidal thoughts to Denny, who had in turn conveyed her concerns about appellant’s behavior to the officers. Although appellant felt that Denny overreacted to his expressing homicidal and suicidal thoughts, the fact remains that appellant fit the criteria for being taken into custody under Welfare and Institutions Code section 5150 under the circumstances. Appellant has pointed to no evidence suggesting the officers lacked probable cause to make the detention.
In his closing statement, appellant’s trial counsel argued: “[Denny] was at a point where she wanted [appellant] to be hospitalized because of what he was expressing to her in private about his situation, about being distraught, about perhaps—maybe he used the word ‘suicidal, ’ but the fact is that she perceived in him that there was something wrong, and she felt a duty to him and a concern as a medical practitioner and as a decent human being to see that he gets the necessary care.”
Appellant primarily argues that the officers used excessive force, which would render their actions unlawful. We first address whether the appellant relied upon that defense at trial. Plainly, he did not. Instead, the defense theory was that appellant offered no resistance. Appellant’s trial counsel did not argue that the officers used unreasonable force under the circumstances or that their actions were rendered unlawful as a result of using unreasonable force.
We next address whether a defense that the officers used excessive force is inconsistent with appellant’s theory of the case. Considering the issue in the abstract, it is not necessarily inconsistent to claim both that appellant offered no resistance and that the officers used excessive force in detaining him. However, appellant’s theory was not simply that he offered no resistance. Instead, his trial counsel took the position both in opening and closing statements that the officers were simply doing their job in response to seeing appellant holding a box cutter, an action counsel claimed was misinterpreted.
A few trial excerpts illustrate appellant’s theory. In his opening statement, after describing how appellant reached into his pocket to remove the box cutter, appellant’s trial counsel described how this act created “confusion.” He stated: “Officer Huff sees that, he believes that [appellant] has a knife, and Officer Huff responds.” Appellant’s trial counsel did not cast aspersions on the officers, however, but instead referred to their “good intentions” and the fact they’re “doing their duty for the public safety and their safety and everyone’s safety.” Appellant’s trial counsel specifically referred to Officer Huff as “the good officer that he is, ” a statement clearly at odds with a theory that Officer Huff acted unlawfully in detaining appellant. Moreover, appellant’s trial counsel specifically declined to describe the incident in terms that would suggest the officers used excessive force. For example, he said, “[I]n this short period of time, [appellant] suddenly—and I don’t want to use the word ‘tackled’ or use inflamed words like ‘tackled” or ‘attacked’ or ‘beaten’ or ‘brutalized.’ The officers, for whatever reason it was, were there, grabbed him, knocked him down for what they believed was their safety, his safety, personnel’s safety, handcuffed him, controlled the situation, and that’s that. Now he’s under arrest for resisting an executive officer. [¶] Ask yourself, where is the violence by [appellant]? Where is the violence and force? Where is the resisting?”
Appellant’s trial counsel continued the theme in his closing statement. He claimed the incident was “blown out of proportion” as a result of a “misunderstanding.” Again, he did not fault the officers for their actions. He stated, “Once [appellant] removed the box cutter, Officer Huff was on him, which he should be, but that doesn’t amount to resisting.” (Italics added.) In a similar vein, after suggesting the incident got “blown out of proportion, ” counsel stated, “I’m not taking anything away from the officers. They’re there, they have their charge. They’re there to size up the situation as it is.” Further, defense counsel acknowledged that the officers had to complete the task they began: “[A]t that point, you know, no matter what happened, now the officers have to pursue their charge and settle the situation. No matter how it started, no matter what the reasons or what, now you just can’t have everybody walk up and say, ‘All right, let’s go home now, ’ and exchange pleasantries. No. Now we have an incident, and they have to get the person cuffed.”
An instruction on the use of excessive or unreasonable force would have been inconsistent with appellant’s theory of the case. For tactical reasons, appellant’s trial counsel chose not to challenge the officers’ actions but instead repeatedly emphasized that the officers were just doing their duty, albeit based on a claimed misunderstanding. Asking jurors to consider whether the officers acted unlawfully by using unreasonable or excessive force would have invited the jurors to reject appellant’s theory of the case.
Moreover, it is notable that appellant’s trial counsel specifically rejected the court’s invitation to use instructions relating to self-defense. Such instructions typically go hand in hand with an instruction on excessive or unreasonable force. (People v. White, supra, 101 Cal.App.3d at p. 168.) This is so because a defendant is entitled to use reasonable force to defend himself or herself against an officer who uses unreasonable or excessive force in making an arrest or detention. (See CALJIC No. 9.28.) Thus, once it becomes a question for the jury to determine whether an officer used excessive force to arrest a defendant, “it is necessary to explain further that where an officer uses unreasonable or excessive force in making an arrest, the person arrested has the right to use reasonable force to protect himself.” (People v. White, supra, 101 Cal.App.3d at p. 168.) Here, once appellant disclaimed a self-defense theory, it was not unreasonable for the trial court to assume the related instruction on excessive or unreasonable force was unnecessary.
Accordingly, we conclude the trial court had no duty on its own initiative to instruct the jury with CALJIC No. 9.29. We also conclude appellant has not demonstrated ineffective assistance of counsel. It was not unreasonable for trial counsel to avoid seeking instructions inconsistent with the defense theory presented at trial.
Disposition
The judgment is affirmed.
I concur: Parrilli, J.
Pollak, J.
I concur, but wish to add an observation with respect to whether misdemeanor resisting arrest in violation of Penal Code section 148, subdivision (a)(1) is a lesser included offense of the violation of section 69 as charged in this case.
All statutory references are to the Penal Code.
“[T]he primary function of the accusatory pleading test [is] to determine whether a defendant is entitled to instruction on a lesser uncharged offense.” (People v. Montoya (2004) 33 Cal.4th 1031, 1036.) The requirement that the jury be instructed on lesser included offenses “ensures that the jury will consider the full range of possible verdicts—not limited by the strategy, ignorance, or mistakes of the parties. The jury should not be constrained by the fact that the prosecution and defense have chosen to focus on certain theories. ‘Just as the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citation.] Furthermore, where counsel is not aware of alternative verdicts or incorrectly believes them to be irrelevant to the case, the trial court’s action will avoid an unwarranted all-or-nothing choice for the jury and will ensure that the verdict is no harsher or more lenient than the evidence merits. These policies reflect concern both for the rights of persons accused of crimes and for the overall administration of justice.” (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on another issue in People v. Barton (1995) 12 Cal.4th 186, 200-201; People v. Barton, supra, at pp. 194-195, 204; People v. Cook (2001) 91 Cal.App.4th 910, 917.) From this perspective, one might reasonably conclude that the jury in this case should have been instructed on misdemeanor resisting arrest because, as the offense of violating section 69 was defined in the instructions, if defendant was guilty of that offense he “must necessarily have also committed the lesser crime.” (People v. Moon (2005) 37 Cal.4th 1, 25-26.)
Nonetheless, treating an uncharged offense as necessarily included in a greater charged offense has further implications. (See People v. Ortega (1998) 19 Cal.4th 686, 701-703 (conc. opn. of Werdegar, J.), overruled on a different ground in People v. Reed (2006) 38 Cal.4th 1224, 1228-1229.) If a lesser offense is necessarily included in the greater offense, the jury may be instructed on the lesser offense over the objection of the defendant. (People v. Barton, supra, 12 Cal.4th at pp. 201-204.) For that reason, it becomes essential that the defendant have prior notice of the charges on which he or she may be convicted. (People v. Reed, supra, 38 Cal.4th at p. 1227 .) The necessary notice can permissibly be derived from the elements of the offense as defined by the applicable statutes or from the manner of committing the greater offense alleged in the accusatory pleading. But for this purpose due process considerations preclude determining whether a lesser offense is necessarily included within a charged offense based on the evidence received at trial (People v. Ortega, supra, 19 Cal.4th at p. 698; People v. Cheaves (2003) 113 Cal.App.4th 445, 454) and, for like reasons, based on the instructions determined during the course of trial.
Arguably there need not be symmetry between the determination of whether the court is required sua sponte to instruct on a particular lesser offense and whether the court may instruct on that offense over the defendant’s objection. Due process presumably would be satisfied if the court could not, over defense objection, instruct on a lesser included offense that became so only by virtue of jury instructions that were more limited than the accusatory pleading. And the objective of providing the jury with a full range of alternatives would be advanced by requiring the court to instruct on the lesser offense if the defendant does not object. Nonetheless, as the majority opinion recognizes, basing the determination of whether an offense is a lesser included offense on the content of the jury instructions would not be an application of the accusatory pleading test. Such an approach has not been sanctioned by our Supreme Court. Numerous other considerations, including consistency and workability, undoubtedly bear on the advisability of adopting such an approach. (See People v. Ortega, supra, 19 Cal.4th at p. 698.) The defendant here does not suggest that we depart from the accepted dual criteria for determining whether an offense is necessarily included in another offense, and I do not propose that we create on our own initiative a novel third approach. Nonetheless, it is important to recognize that the conclusion we reach, that the content of the jury instructions does not determine whether a lesser offense is necessarily included in the charged offense, does not follow inescapably from the constitutional requirement of notice to the defendant.
Whether an offense is necessarily included in another offense is also relevant to the permissibility of multiple convictions based on the same conduct. For this purpose, our Supreme Court has recently held that the accusatory pleading test is not to be used to determine whether one offense is necessarily included in another. (People v. Reed, supra, 38 Cal.4th at pp. 1228-1229.)
Applying the recognized accusatory pleading test, I agree that the violation of section 148, subdivision (a)(1) is not necessarily included within the violation of section 69 as charged in this case.