Opinion
G052846
11-07-2017
THE PEOPLE, Plaintiff and Respondent, v. SANTOS GABINO VASQUEZ, Defendant and Appellant.
Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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). The opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 15WF0225) OPINION Appeal from a judgment of the Superior Court of Orange County, Lance Jensen, Judge. Affirmed as modified. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, A. Natasha Cortina and Meagan J. Beale, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Santos Gabino Vasquez of exhibiting a deadly weapon with the intent to resist or prevent arrest or detention (Pen. Code, § 417.8; all statutory citations are to the Penal Code unless otherwise specified). Vasquez contends the trial court erred by instructing on the elements of the crime with CALCRIM No. 982. He asserts the instruction failed to inform the jury a violation of section 417.8 occurs only if a defendant exhibited the deadly weapon with the specific intent to use it to resist an arrest or detention. We conclude section 417.8 does not require an intent to use the weapon beyond the intent to exhibit it. We also conclude the trial court adequately instructed on the intent element, and the requirement a defendant intend to resist by exhibiting a deadly weapon.
The Attorney General concedes the trial court erred when it failed to strike a one-year prior prison term enhancement. Consequently, we affirm the judgment as modified.
I
FACTUAL AND PROCEDURAL BACKGROUND
On the afternoon of August 8, 2014, a grocery store employee notified Costa Mesa Police Officer Jon Doezie that a suspicious male was banging on the store's rear door and possibly carrying a knife. Doezie drove his marked patrol car to the back of the store and spotted Vasquez leaning against a door, but facing away from the building. He held a steak knife with a four- to five-inch serrated blade. Vasquez turned to look at Doezie as the officer came into view. Doezie parked approximately 20 yards away from Vasquez and exited his car.
Vasquez shifted his grip on the knife. He held it like an ice pick, with his knuckles perpendicular to the ground and the blade pointing down. Doezie drew his weapon, pointed it at Vasquez, and ordered him to drop the knife. Vasquez did not comply, instead responding, "do it. Just do it." Vasquez appeared "[a]ngry, agitated, hostile," and had a "distant" and "confused" look on his face. Vasquez stood too far from Doezie to harm him.
Doezie and another officer who arrived on the scene tried to persuade Vasquez to drop the knife. At one point, Vasquez placed the knife against his chest as if he were going to stab himself. He then cut himself on his left bicep, inflicting a six-inch wound, and yelled at Doezie to shoot him.
When Vasquez did not comply with repeated demands to drop the knife, officers shot three 40-millimeter "sponge rounds" from a Specialty Impact Munitions firearm at Vasquez's legs, which brought him to his knees. But he continued to ignore repeated commands to drop the knife. Firing three additional rounds, the officers' sixth round knocked the knife out of Vasquez's hand, shattering it. As the officers moved in to handcuff Vasquez, he curled into a fetal position and engaged in "bracing," holding his hands to prevent the officers from putting them behind his back. When an officer delivered a "knee strike" to Vasquez's head, he immediately stopped resisting. It took more than five officers to maneuver Vasquez onto his stomach so they could search and handcuff him. Vasquez had pointed the knife at his chest two times during the encounter, which lasted approximately 15 minutes.
Vasquez denied being drunk or high, but Doezie thought Vasquez might be hallucinating or under the influence of a controlled substance. Doezie transported Vasquez to the hospital for a Welfare and Institutions Code section 5150 evaluation. Hospital tests eliminated the possibility illicit substances affected Vasquez during the confrontation.
Welfare and Institutions Code section 5150 authorizes a peace officer to take into custody for up to 72 hours for assessment, evaluation, and crisis intervention, a person who, as a result of a mental health disorder, is a danger to others, or to himself, or is gravely disabled.
Following trial in August 2015, a jury convicted Vasquez as noted above. Vasquez later admitted he had a prior conviction for a serious felony under the Three Strikes law (§ 667, subds. (d), (e)(1); § 1170.12, subds. (b), (c)(1)) and section 667, subdivision (a), and having served two prison terms per section 667.5, subdivision (b). The court imposed a 12-year prison term, comprised of the three-year midterm for the offense, doubled to six years under the Three Strikes law, plus a five-year enhancement under section 667, subdivision (a), and a one-year enhancement under section 667.5, subdivision (b). The court declined to exercise its discretion to strike the prior serious felony conviction, and Vasquez does not appeal that decision.
An offense qualifies as a serious felony for under the Three Strikes law and section 667, subdivision (a) where the defendant personally used a dangerous or deadly weapon. (§ 1192.7, subd. (c)(23).)
The information alleged Vasquez had suffered a conviction in June 2009 for a violation of former section 12020, subdivision (a)(1) [manufacture, import, sale, supply or possession of specified weapons], with a gang enhancement (§ 186.22, subd. (b)). The information alleged this conviction authorized both doubling Vasquez's sentence under the Three Strikes law and imposing a five-year enhancement under section 667, subdivision (a). The same prior conviction was alleged to support a one-year prison enhancement under section 667.5, subdivision (b). The information also alleged Vasquez suffered a conviction in April 2014 for assault (§ 240) with a gang enhancement (§ 186, subd. (d) [misdemeanor committed to benefit criminal street gang punishable as misdemeanor/felony wobbler]) that authorized a one-year enhancement under section 667.5, subdivision (b).
II
DISCUSSION
A. The Trial Court Did Not Misinstruct the Jury
1. Section 417.8 does not require an intent to use the deadly weapon
Vasquez contends the trial court erred by instructing the jury with CALCRIM No. 982, the pattern instruction for exhibiting a deadly weapon to resist an arrest or detention. He argues the instruction did not make clear a defendant must specifically intend to use the exhibited weapon to violate section 417.8. Vasquez's "use" argument does not persuade us the court misinstructed the jury.
As relevant here, section 417.8 provides, "Every person who . . . exhibits any . . . deadly weapon, with the intent to resist or prevent the arrest or detention of himself or another by a peace officer shall be imprisoned . . . ."
The trial court gave a modified version of the standard CALCRIM No. 982 instruction, as follows: "The defendant is charged in Count 1 with brandishing a (deadly weapon) to resist arrest or detention in violation of Penal Code section 417.8. [¶] To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant drew or exhibited a (deadly weapon); AND 2. When the defendant drew or exhibited the (deadly weapon), (he) intended to resist arrest or to prevent a peace officer from arresting or detaining (him). [¶] A person who is employed as a police officer by the Costa Mesa Police Department is a peace officer." The court specified the crime required a specific intent or mental state. The court also instructed the jury on proof of the union of act and wrongful intent (CALCRIM No. 251) and the use of circumstantial evidence to prove intent or mental state (CALCRIM No. 223).
The Attorney General states CALCRIM No. 982 incorrectly uses the word "brandishing." The Attorney General asserts brandishing is prohibited by section 417, which unlike section 417.8, requires the person to draw or exhibit the deadly weapon "in a rude, angry, or threatening manner." (See People v. Pruett (1997) 57 Cal.App.4th 77, 88 (Pruett) [offense punishable by section 417 is not a necessarily included offense of section 417.8 because section 417.8 does not require the deadly weapon be drawn or exhibited in a rude, angry or threatening manner].) Neither section contains the word brandishing. (Cf. Bus. & Prof. Code, § 7583.37 [authorizing fine against private security guard for "brandishing" a weapon].) The term brandishing as used in the jury instructions (see CALCRIM Nos. 980-985) is apparently a shorthand reference to drawing or exhibiting a weapon. (See People v. Geiger (1984) 35 Cal.3d 510, 524 [section 417 defines the offense commonly referred to as brandishing].) The word is imprecise, but not incorrect. --------
Vasquez concedes he exhibited a deadly weapon and his noncompliance with numerous orders to drop his knife delayed the officers from taking him into custody. Vasquez asserts, however, section 417.8 requires an intent to use the weapon to resist the arrest or detention, yet CALCRIM No. 982 allows the jury to convict a defendant who exhibited a deadly weapon and merely held a contemporaneous intention to resist, without requiring evidence the person intended to use the weapon to resist. Vasquez complains the instruction "asks the jury to make two findings, first that there was an exhibition and then a[n] intention to resist. An invidious ambiguity is thus created by the use of the connecting word, '2. When . . .' It allows a jury to find guilt through a temporal linkage: an intent to resist formed during the time when there was an exhibition of a weapon. The misdirection lies in the likelihood that this instruction allows a jury to find guilt where, as in [Vasquez's] case, there was no evidence of his having an intention to use the knife to hold off the police and prevent them from taking him into custody."
Based on this reasoning, Vasquez concludes the trial court should have modified CALCRIM No. 982 to include an intent to use the knife to resist, as follows: "2. When the defendant drew or exhibited the (deadly weapon), (he) intended [to use it] to resist arrest or to prevent a peace officer from arresting or detaining (him)." (Vasquez's brackets, italics added.) He states, "As modified, the instruction would preclude the reasonable likelihood that a jury might find a defendant guilty of committing a section 417.8 offense when the exhibiting and the intention to resist took place simultaneously even though the two things happened only coincidentally without any specific intent to ever use the exhibited weapon as a means of resisting arrest or detention."
The express terms of section 417.8 do not support Vasquez's argument. Section 417.8 states, in relevant part, "Every person who . . . exhibits any . . . deadly weapon, with the intent to resist or prevent the arrest or detention of himself or another by a peace officer" violates the law. In other words, section 417.8 is violated when a defendant exhibits a deadly weapon to show simultaneously an intention to resist an arrest or detention.
"'Except for strict liability offenses, every crime has two components: (1) an act or omission, sometimes called the actus reus; and (2) a necessary mental state, sometimes called the mens rea.'" (People v. Williams (2009) 176 Cal.App.4th 1521, 1528.) The prohibited act in section 417.8 is exhibiting a deadly weapon; the requisite mental state is an intent to resist or prevent an arrest or detention. The statute does not require an intent to use the exhibited deadly weapon. The plain meaning of an unambiguous statute governs; we may not insert words or rewrite the law to give the statute a different meaning. (People v. Hunt (1999) 74 Cal.App.4th 939, 946.) Thus, an intent to use the exhibited deadly weapon to injure officers or actual use of the weapon are not elements of section 417.8. (Pruett, supra, 57 Cal.App.4th at p. 77.) "To find otherwise would be tantamount to rephrasing section 417.8 to make it a crime for a defendant to draw or exhibit 'a deadly instrument with the intent to use it as a weapon with the intent to prevent the arrest or detention of himself or another by a peace officer.'" (Ibid.)
Adopting Vasquez's argument to require an intent to use the exhibited deadly weapon would undermine the Legislature's goal of deterring the danger posed when an individual displays a deadly weapon to a peace officer attempting an arrest or detention. "The chief evil to be avoided by criminalizing exhibition of weapons is the potential for further violence, not only by the defendant, but also by others in response to the defendant's action." (People v. Simons (1996) 42 Cal.App.4th 1100, 1109 (Simons).) As the Simons court explained, "[T]he mere act of exhibiting a weapon, while harmless per se, is dangerous by virtue of the violence it may engender." (Ibid.) Thus, exhibiting a deadly weapon with the intent to resist or prevent an arrest or detention violates section 417.8; an intent to use the weapon beyond displaying it is not required.
Vasquez relies on Simons to support his argument section 417.8 requires an intent to use the deadly weapon displayed by the defendant. There, the defendant resisted his arrest by using a screwdriver to threaten the officers by flailing his hands and waving it at them. The issue in Simons was whether a screwdriver was a deadly weapon under section 417.8. Simons rejected the defendant's claim section 417.8 applied only to the exhibition of inherently dangerous or deadly weapons. The court explained that instrumentalities "'"which are not weapons in the strict sense of the word and are not 'dangerous or deadly' to others in the ordinary use for which they are designed"'" may qualify as a deadly weapon if "the object be capable of deadly use and that the defendant intends to so use it if need be." (Simons, supra, 42 Cal.App.4th at p. 1107.) The Simons court concluded the evidence supported "a finding that the screwdriver was capable of being used as a deadly weapon and that the defendant intended to use it as one if need be." (Id. at p. 1108.) Whether an instrument qualifies as a deadly weapon turns "not upon the nature of the weapon involved, but upon what is done with the weapon." (Ibid.)
Vasquez's reliance on Simons is unavailing. The issue in Simons was whether the object used by the defendant was a deadly weapon, not whether the requisite mental state to violate section 417.8 required an intent to use a deadly weapon. Here, it is undisputed the knife Vasquez used was a deadly weapon. (See Pruett, supra, 57 Cal.App.4th at pp. 86-87 [knife with an open blade is a deadly weapon].) Simons focused on the manner in which the defendant displayed the screwdriver to determine whether it was a deadly weapon. This inquiry dealt solely with determining the nature of the object used by the defendant. Simons is not authority to construe section 417.8 as requiring an intent to use the exhibited deadly weapon.
2. The trial court did not err in giving CALCRIM No. 982
Vasquez contends CALCRIM No. 982 is ambiguous and misleading because it allowed the jury to convict him based solely on the temporal coincidence he displayed a deadly weapon and he intended to resist an arrest or detention. Vasquez argues his intention to resist was unconnected to his display of the knife, and although he harbored a separate intent to resist the efforts to arrest him, he did not hold the weapon itself with the specific intent to resist those efforts, but intended only to harm himself. Vasquez asserts CALCRIM No. 982 erroneously allows a jury to find a defendant guilty where the defendant intends to resist but does not intend to resist with the deadly weapon.
In support, Vasquez notes the standard CALJIC instruction setting forth the elements of section 417.8 more closely tracked the statutory language. CALJIC No. 9.21.1 required the jury to find "1. A person drew or exhibited a [deadly weapon]; and 2. That person did so with the specific intent to resist [arrest or detention]." (Italics added.) CALCRIM No 982, however, differs from the CALJIC instruction in two significant respects. First, the CALCRIM instruction omitted the CALJIC language requiring that a defendant specifically intend to resist. Second, the elements described in CALCRIM No. 982 require proof the defendant drew or exhibited a deadly weapon, "and 2. When the defendant drew or exhibited the [deadly weapon, he] intended to resist arrest or to prevent a peace officer from arresting or detaining [him]." (Italics added.) In contrast, section 417.8, tracked by the CALJIC instruction, links the display of the deadly weapon "with the intent to resist or prevent the arrest or detention of himself or another by a peace officer." Vasquez concludes these changes mislead the jury on the elements of section 417.8 and therefore we must reverse his conviction. Vasquez's nuanced arguments do not persuade us the trial court erred.
The trial court sua sponte must instruct the jury on "'general principles of law relevant to the issues raised by the evidence and necessary for the jury's understanding of the case.'" (People v. Anderson (2011) 51 Cal.4th 989, 996.) We review de novo a claim the trial court failed to properly instruct on the applicable principles of law. (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311 (Mathson).) We must interpret the instructions to support the judgment if they are reasonably susceptible to that interpretation. (Id. at p. 1312.) "'The meaning of instructions is no[t] . . . determined under a strict test of whether a "reasonable jury" could have understood the charge as the defendant asserts, but rather under the more tolerant test of whether there is a "reasonable likelihood" that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel.'" (Ibid.)
It is not clear why the CALCRIM drafters omitted a specific intent requirement in CALCRIM No. 982. Certainly, they were aware of the CALJIC instruction describing the mental element of section 417.8 as the specific intent to resist. And it appears section 417.8 has the earmarks of a specific intent crime. "'When the definition of a crime refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.'" (People v. Hering (1999) 20 Cal.4th 440, 445 (Hering).) A defendant violates section 417.8 when exhibiting a deadly weapon with the intent to resist an arrest or detention. Thus, the person exhibits the deadly weapon to achieve the additional purpose of resistance or prevention of an arrest or detention. Moreover, section 417.8 includes the phrase "'with the intent,'" which typically denotes specific intent crimes. (Id. at p. 446.) But we need not decide whether section 417.8 is a specific intent crime, as Vasquez claims, because the trial court informed the jury section 417.8 required a specific intent.
After instructing the jury on using circumstantial evidence to find specific intent, the trial court gave CALCRIM No. 251, which informed the jury that "[t]the crime charged in this case requires proof of the union and joint operation of wrongful intent. [¶] For you to find a person guilty of the crime in this case, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required is explained in the instruction for that crime." Vasquez complains the court, in referring the jury back to the definition of the crime for the required intent, never modified CALCRIM No. 982 to describe the specific intent necessary for a conviction.
We are not persuaded the failure to place the word "specific" before the word "intent" in CALCRIM No. 982 requires reversal of the judgment. Although not labeled as "specific intent," the requisite intent was stated accurately as an element of section 417.8. As our Supreme Court explained, "'[T]he characterization of a crime as one of specific intent [or general intent] has little meaningful significance in instructing a jury. The critical issue is the accurate description of the state of mind required for the particular crime.'" (Hering, supra, 20 Cal.4th at p. 447.) Here, CALCRIM No. 982 makes clear the prosecution must prove the defendant "intended to resist arrest or prevent a peace officer from arresting or detaining him." Consequently, it is not reasonably likely the jury misunderstood the intent necessary for a violation of section 417.8.
CALCRIM No. 982's use of "[w]hen" to link the act of exhibiting the weapon with the intent to resist presents a thornier issue. Vasquez concedes he intended to resist his arrest or detention, and he exhibited a knife, but he asserts he displayed the knife not to aid his resistance, but only to harm himself. He insists that by substituting "when" for "with," CALCRIM No. 982 failed to require the jury to determine whether he subjectively intended his display of the knife to impede or delay the officers. Under the statute and the CALJIC instruction, in contrast, if the jury accepted Vasquez's argument it could have found Vasquez did not exhibit the weapon with the intent to resist. According to Vasquez, the conjunction "with" makes clear a defendant must intentionally commit the prohibited act to facilitate his resistance. But under the CALCRIM instruction, the jury is instructed a defendant violates section 417.8 if he exhibits a deadly weapon when he has the intent to resist, even if his intention to resist is not linked to his display of a deadly weapon.
The distinction Vasquez draws between "when" and "with" in this context is very fine indeed. The distinction may be more clearly illustrated in a hypothetical where, for example, the defendant draws a knife and, in the same motion, immediately discards it far from his reach though, at the same time, he continues to harbor an intent to resist the officers physically. We need not decide the issue, but the defendant's conduct in that scenario conceivably could be consistent with the Legislature's purpose in enacting section 417.8, namely, to reduce the potential for violence when a suspect exhibits a weapon. (Simons, supra, 42 Cal.App.4th at p. 1109.) Yet under CALCRIM No. 982's formulation using "when" instead of "with," the jury could convict the defendant simply because he drew the knife and "when" he did so, he contemporaneously harbored an intent to resist the officers, albeit physically. The jury would not have to determine whether there was any connection between the defendant's act and his intent, as "with" implies.
In essence, Vasquez claims the CALCRIM instruction allowed the jury to convict him even if it found no union of act and intent; that is, the instruction failed to link the prohibited act of exhibiting the knife with the intent to resist. In evaluating Vasquez's instructional error claim, "'"'we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.'"'" (Mathson, supra, 210 Cal.App.4th at p. 1311.) Here, the trial court gave the jury CALCRIM No. 251, the standard instruction on the union of act and intent. As noted above, the instruction informed the jury that the defendant "must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state." (Italics added.) The clarity of this instruction, and the remarks of Vasquez's attorney in closing argument that emphasized he lacked the necessary intent when exhibiting the knife, informed the jury that to find Vasquez guilty it must conclude he exhibited the knife to further his intent to resist. We therefore conclude it is not reasonably likely the court's instructions misled the jury.
To the contrary, in expressly using "with" precisely as Vasquez claims was necessary to link the prohibited act and mental state, CALCRIM No. 251 disposes of Vasquez's challenge. (See People v. Wright (2006) 40 Cal.4th 81, 98 [instructional error or omission harmless where issue at stake is necessarily resolved by other properly given instructions].) Moreover, a strict reading of the CALJIC instruction poses the same temporal problem Vasquez sees in CALCRIM No. 982. Therefore, if Vasquez believed clarifying or pinpoint instructions were necessary, it was his duty to request them. (People v. Hart (1999) 20 Cal.4th 546, 622.)
Vasquez contends a jury request for clarification during deliberations shows a juror or jurors may have been confused about the intent element of the crime. During deliberations, the jury asked for "further instructions or directions if an individual cannot agree with the group. [¶] Can part 2 of Penal Code Section 417.8 be clarified: when the defendant drew or exhibited the weapon, he intended to resist arrest [¶] Or: to prevent a peace officer from arresting him or detaining him. [¶] Legal Definition of: resist arrest. Detaining." The court's written response does not appear in our record, but the clerk's minutes reflect the court provided CALCRIM No. 3551 (Further Instruction About Deliberations) to assist with the first concern. The court also referred the jury to "CALCRIM 982 and any other jury instructions that you feel may assist you in your duties. A peace officer may legally detain someone if specific facts known or apparent to the officer lead him or her to believe that the person to be detained has been, or is about to be involved in activity relating to crime. A defendant may not intentionally resist a peace officer in the performance of his or her duties."
Vasquez argues "the jury was given no guidance on the problematical portion of the CALCRIM instruction," and the trial court failed "to clarify the connection between exhibiting and intending to resist . . . ." The court did not follow up on the jury's question so we do not know with certainty whether the jury was confused about the connection between exhibiting the knife and the intent to resist, as Vasquez claims, or whether the jury wanted a definition of arrest and detention, as the Attorney General claims. We note only that had the jury desired clarification on the intent element, it is likely they would have requested further explanation since the court's answer focused only on the definitions of an arrest and detention.
In any event, Vasquez did not object to the trial court's response and therefore has waived any claim the trial court erred in its response. (People v. Harris (2008) 43 Cal.4th 1269, 1317 ["[Defendant] has waived this argument by specifically agreeing below to the court's handling of the jury's question"]; People v. Roldan (2005) 35 Cal.4th 646, 729 (Roldan) overruled on other grounds as stated in People v. Doolin (2009) 45 Cal.4th 390, 421 & fn. 22 ["When a trial court decides to respond to a jury's note, counsel's silence waives any objection under section 1138"] People v. Bohana (2000) 84 Cal.App.4th 360, 373 ["Where, as here, appellant consents to the trial court's response to jury questions during deliberations, any claim of error with respect thereto is waived"].) "'Approval of the court's action, even though it might have been a technical violation of section 1138 of the Penal Code, cures any possible error.'" (Roldan, at p. 729.) B. Substantial Evidence Supports the Jury's Verdict
We invited the parties to file supplemental letter briefs addressing whether sufficient evidence supports Vasquez's conviction. The test for sufficiency of the evidence is "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Substantial evidence consists of evidence that is reasonable, credible, and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 578.) A jury's finding must be sustained on appeal even though the evidence also supports a contrary conclusion.
As noted, section 417.8 prohibits exhibiting a deadly weapon with the intent to resist an arrest or detention. Vasquez argues the record does not contain an explicit expression of what Vasquez intended during the standoff. Vasquez emphasizes he neither said what he was going to do with the knife, nor did he make menacing gestures with it. The officers did not approach Vasquez, which "might have probed whether Vasquez was going to brandish the knife in a threatening manner to keep the officers at bay."
The evidence supports Vasquez's claim he held an intent to harm himself. But the evidence also supports the inference he simultaneously intended to resist his arrest or detention. Given the length of the standoff, Vasquez's continuous display of the knife, and his persistent refusal to comply with the officer's orders to drop the knife, the jury reasonably could have concluded Vasquez exhibited a deadly weapon with the intent to resist his arrest or detention. (People v. Cole (1985) 165 Cal.App.3d 41, 48 [circumstances surrounding the act furnish evidence from which the jury may infer the presence or absence of specific intent].) Substantial evidence supports the conviction. C. The Trial Court Erred By Failing to Strike the One-Year Prison Prior
The Attorney General points out the trial court erred in failing to strike the one-year prison prior that formed the basis for the five-year serious felony conviction. (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561-1562.) We will modify the judgment accordingly.
DISPOSITION
We modify the judgment by striking the second one-year prison prior conviction, and direct the trial court to amend the abstract of judgment accordingly, and forward a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects the judgment is affirmed.
ARONSON, ACTING P. J. WE CONCUR: FYBEL, J. THOMPSON, J.