Opinion
E064324
03-15-2017
THE PEOPLE, Plaintiff and Respondent, v. JAMES MICKAEL ARCH, Defendant and Appellant.
Michelle C. Zehner, 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, and Arlene A. Sevidal and Christine Y. Friedman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FMB1400492) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed. Michelle C. Zehner, 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, and Arlene A. Sevidal and Christine Y. Friedman, Deputy Attorneys General, for Plaintiff and Respondent.
This criminal matter arises out of an incident of petty vandalism that escalated into a physical struggle between defendant and appellant James Mickael Arch and several responding deputies from the San Bernardino County Sherriff's Department. A jury convicted defendant of making criminal threats (Pen. Code, § 422, subd. (a); count 1), resisting an executive officer (§ 69; count 2, Deputy Shaunna Ables), battery on a peace officer (§ 243, subd. (b); count 3, Deputy Ables), and vandalism (§ 594, subd. (a); count 6). The jury acquitted defendant of two additional charged counts of resisting an executive officer (§ 69, counts 4 (Deputy Ramon Lomeli) and 5 (Deputy Jesse Moon)), but in each case found defendant guilty of the lesser included charge of resisting a peace officer (§ 148, subd. (a)(1)). The trial court sentenced defendant to an aggregate term of three years eight months in prison.
Further undesignated statutory references are to the Penal Code.
On appeal, defendant contends that (1) his trial counsel provided ineffective assistance of counsel by failing to object to prosecution expert testimony regarding the use of force; (2) the trial court erred by not instructing the jury on the lesser included offenses of simple assault and battery with respect to counts 2, 4, and 5; and (3) his sentence with respect to the criminal threats conviction should have been stayed pursuant to section 654.
We affirm the judgment.
I. FACTS AND PROCEDURAL BACKGROUND
On September 18, 2014, defendant became agitated and vandalized a rainbow-colored flag outside an antiques store, shredding the flag and bending the flagpole. He also attempted to damage the antenna on the store owner's truck.
When law enforcement arrived on scene, defendant grew even more agitated, yelling obscenities at responding deputy sheriffs, flailing his arms, and digging around in his backpack. One of the responding deputies, Deputy Shaunna Ables, recognized defendant as someone she had contacted earlier in the day; a property owner had called 911 and asked that law enforcement warn a homeless person sleeping in the bushes near her property that she would press charges for trespassing if he came onto the property. That earlier encounter had been contentious; defendant was belligerent and uncooperative and, at one point, Deputy Ables felt the need to unlatch the holster of her gun and partially unholster it, in case he was reaching for a weapon. In the end, Deputy Ables just gave defendant a verbal trespass warning and "[s]ent him on his way."
Defendant recognized Deputy Ables from their earlier encounter, and continued his belligerent tone, berating her by name in an obscene manner, and making reference to their earlier encounter by challenging her repeatedly to "pull [her] gun." Defendant subsequently refused Deputy Ables's repeated commands to place his hands behind his back, and instead attempted to grab at the front of her duty belt, where she carried various weapons, including a firearm, pepper spray, a Taser, and a baton. Deputy Ables tried to grab defendant's hand and place him in a control hold, but he pulled away before she could do so. Defendant then lunged at Deputy Ables, grabbing her right thigh with both hands and pulling it towards his body in a bear hug. Deputy Ables responded by punching defendant once in the face, but to no effect.
A physical struggle then ensued between defendant and Deputy Ables, as well as several other deputies who came to her assistance; the deputies involved—including Deputy Ramon Lomeli and Deputy Jesse Moon, whom defendant was charged with resisting in counts 4 and 5, as well as Deputy Adrian Garcia—testified at length about its details. During the course of the struggle, among other things, Deputy Garcia deployed pepper spray on defendant's face, and Deputy Ables delivered four "knee-strike[s] to [defendant's] left rib-cage area." Before the deputies managed to gain control of defendant's hands, he repeatedly swung his elbows at the deputies, but did not succeed in striking them. At one point, defendant was on his stomach, still struggling, but Deputy Ables had defendant's left arm pinned under her knee, while another deputy had managed get handcuffs around defendant's right wrist. Deputy Ables told defendant to put his hands behind his back when she released the pressure on his left wrist. Defendant responded by saying "I'm going to take you out, motherfucker," and then, "I'm takin' you out, motherfucker. Here it comes." Defendant then attempted to strike with his elbow in the direction of Deputies Ables and Garcia, who were trying to control defendant's left hand and arm; the attempted blow did not land. The incident ended when, after the fourth knee strike by Deputy Ables, defendant was persuaded to cease resisting; he said "It's over" and put his hand behind his back.
Audio of the encounter was captured by the belt recorders of two of the deputies, and transcripts of those recordings appear in our record.
Once handcuffed, defendant continued to be verbally belligerent with the deputies and with responding paramedics. At one point, defendant told Deputy Moon "I'm with you Dude. It's all good . . . I got nothing but pain against Able over there because she kneed me. But, I will get her back." When Deputy Moon asked how defendant would "get her back," he responded "Dude, multiple times."
At trial the prosecution called Corporal Ronald Wright of the San Bernardino Sherriff's Department as an expert on the use of force. Corporal Wright testified in general about the use of force by law enforcement officers, and their training on use of force. He also reviewed the police reports and belt recordings available from the incident at issue in the present case and, without objection from defense counsel, expressed his opinion about the performance of the deputies involved. Corporal Wright opined that the deputies "did an outstanding job in maintaining restraint"; his one point of criticism was that, in their shoes, he would have used more force, to try to end the encounter quickly and prevent it from potentially "turning into a deadly situation." The prosecution asked Corporal Wright specifically and separately about each strike, control hold, and weapon employed by the officers; he opined at each point that the use of force was both authorized by department policy and appropriate under the circumstances.
Defendant testified in his own defense. He asserted that the flag "hit me first." He stated that after the flag "came down," he was walking away from the antiques store when he saw Deputy Ables and other deputies. On direct examination, he claimed to have then blacked out, with a "feeling of falling backwards, a white flash," and then the next thing he remembered was Deputy Ables on her knees next to him, kneeing him in the side. On cross-examination, he told a somewhat different story; that he "knew that [he] was going to have a confrontation" with the deputies, and "immediately" put his hands out to be handcuffed. The next thing he knew, he was getting "smacked" in the head, "and it's a blackout." Defendant testified that after coming out of the blackout, he did not know what was happening or why he was there; when he felt handcuffs on one arm, he "immediately threw [his] other arm back." Defendant denied having any control over the words he was saying; he described "all the stuff that was said" as "pure vile," but attributed it to having "a head injury": "Something happened to where my mouth was just rambling, and, um, that's my story."
In closing arguments, defense counsel asked the jury to return a verdict of not guilty on count 1, arguing that several of the elements of the offense of criminal threat had not been proven. With respect to count 2, defense counsel argued that the jury should return a verdict of not guilty because Deputy Ables was acting unlawfully by arresting defendant for a misdemeanor offense that she did not personally observe. On the same basis, defense counsel asked for a verdict of not guilty or a conviction on the lesser included offense of simple battery for count 3. With respect to counts 4 and 5, defense counsel conceded that the actions of Deputies Moon and Lomeli were "lawful," and that the jury would be "completely justified" in returning a guilty verdict under either the charged offense of resisting an executive officer in violation of section 69, or the lesser included offense of section 148, but requested the latter verdict, arguing that defendant did not try to strike either of those deputies. Defense counsel conceded that the jury should convict defendant of committing vandalism, as charged in count 6.
The jury convicted defendant as charged in counts 1 (§ 422, subd. (a), criminal threats), 2 (§ 69, resisting an executive officer), 3 (§ 243, subd. (b), battery on a peace officer), and 6 (§ 594, subd. (a), vandalism), and returned guilty verdicts on the lesser included offense of resisting a peace officer in violation of section 148 on counts 4 and 5. The trial court imposed an aggregate sentence of three years eight months in prison, consisting of a three-year-term on count 2, a consecutive eight-month term on count 1, and concurrent sentences of 51 days each with respect to counts 3, 4, 5, and 6.
II. DISCUSSSION
A. Defendant Fails to Establish That Trial Counsel Was Ineffective.
Defendant argues his attorney at trial provided ineffective assistance of counsel by not objecting to the testimony of the prosecution expert on the use of force. His theory is that it is reasonably probable that at least one juror would have found the force used by the arresting deputies to be excessive, and that defendant would have therefore received a more favorable result at trial, "in the absence of expert testimony applauding the conduct of the officers." We are not persuaded.
1. Legal Background Regarding Sections 69 and 148 .
"Section 69 can be violated in two separate ways. '"The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty."'" (People v. Brown (2016) 245 Cal.App.4th 140, 149.) In this case, the jury was instructed about the second type of section 69 violation, which requires the prosecution to prove the defendant knowingly resisted the officer "'"by the use of force or violence,"'" and "'that the officer was acting lawfully at the time of the offense.'" (Brown, supra, at pp. 149-150.) The jury was further instructed that "[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties." (See In re Chase C. (2015) 243 Cal.App.4th 107, 114 [a peace officer "'"is not engaged in 'duties' for purposes of an offense defined in such terms, if the officer's conduct is unlawful. . . ."'"].)
The concepts of unlawful arrest or detention and unreasonable or excessive force were explained using CALCRIM No. 2670.
As a lesser included offense of the section 69 felony charges (counts 2, 4, and 5), the jury was given the option of convicting defendant of misdemeanor resisting an officer during the lawful performance of his or her duties, in violation of section 148, subdivision (a). Section 148 provides in relevant part: "Every 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 . . . shall be punished . . . ." (§ 148, subd. (a)(1).) For present purposes, the significant difference between these statutes is the use of force or violence is required for section 69, but not for section 148.
2. Standard of Review.
To demonstrate ineffective assistance of counsel, a defendant must show: (1) "counsel's performance was deficient because the representation fell below an objective standard of reasonableness under prevailing professional norms"; and (2) prejudice resulted from the counsel's deficient performance, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." (People v. Williams (1997) 16 Cal.4th 153, 214-215.) Generally, a reviewing court does not second-guess trial counsel's strategic and tactical choices. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) There is a "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance.'" (People v. Lucas (1995) 12 Cal.4th 415, 436-437 (Lucas).)
"A defendant who raises [ineffective assistance of counsel] on appeal must establish deficient performance based upon the four corners of the record." (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) The judgment must be affirmed "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation." (People v. Pope (1979) 23 Cal.3d 412, 426, overruled on other grounds by People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.) Additionally, we "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." (Strickland v. Washington (1984) 466 U.S. 668, 697.)
3. Analysis.
Defendant's ineffectiveness claim fails on the ground of lack of prejudice. He argues that it is reasonably probable that the jury, or at least one juror, would have concluded that the arresting deputies used excessive force, and therefore were acting unlawfully, absent the prosecution expert evidence praising the their conduct. The record, however, does not support that conclusion.
We therefore do not address the parties' arguments with respect to whether the expert testimony at issue was admissible over defense objection, or whether the failure to raise such an objection rendered defendant's counsel's performance deficient.
The essence of defendant's argument is that whether or not the deputies used excessive force was a disputed issue that the jury had to decide with respect to counts 2, 3, 4, and 5, and the challenged expert testimony was an unfair and inappropriate tilting of the playing field in favor of the prosecution on that issue. The jury was indeed instructed that the use of excessive force would render the deputies' actions unlawful. At trial, however, the theory of defendant's defense with respect to counts 2 and 3 was not that Deputy Ables employed excessive force against defendant, but that she was acting unlawfully by arresting him for a misdemeanor violation—vandalism—that she did not personally observe. Regarding counts 4 and 5, defense counsel explicitly conceded that the deputies' actions were "lawful," arguing that defendant did not try to strike either Deputy Lomeli or Deputy Moon, so the lesser included charge of resisting without force under section 148 would be most appropriate. Given that the defense did not choose to argue that the force the deputies employed was excessive, it is not reasonably likely that the jury would have decided otherwise in the absence of the challenged expert testimony on use of force. To the contrary, it is pure speculation.
Furthermore, the "'strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance'" (Lucas, supra, 12 Cal.4th at pp. 436-437) applies to trial counsel's decision to concede certain issues, including whether or not the deputies employed excessive force. Defendant argues on appeal that the evidence could have supported a finding of excessive force: "The four officers involved [in] this case punched [defendant] in the face, sprayed him in the eyes with mace, and struck him repeatedly in the side with enough force to fracture a rib," even though they "had numbers, training, and physical condition on their side." Nevertheless, defendant's trial counsel would not have exceeded the bounds of reason if he concluded he was unlikely to persuade the jury that the deputies used excessive force, given the deputies' testimony about what they did and why, and defendant's own testimony. Counsel does not render ineffective assistance by conceding various facts or degrees of guilt. (People v. Freeman (1994) 8 Cal.4th 450, 498 ["Recognizing the importance of maintaining credibility before the jury, we have repeatedly rejected claims that counsel was ineffective in conceding various degrees of guilt."].)
Defendant asserted during his trial testimony that the third knee strike by Deputy Ables "broke ribs," but there is no medical evidence in the record that defendant in fact suffered any broken ribs. Responding paramedics treated defendant for a scratch on his forehead and the effects of the pepper spray. Deputy Ables subsequently took defendant to the hospital to be checked before taking him to be booked. But defendant refused medical attention, was belligerent to hospital staff, and tried to run out of the emergency room, before he was stopped by Deputies Able and Lomeli and taken to jail.
Our record does not reveal trial counsel's actual thinking on the matter.
In his reply brief, defendant suggests that, absent the prosecution expert's testimony "rubber stamping" the deputies' conduct, the jury "could have decided that Ables was not acting reasonably when she decided to try and handcuff [defendant] . . . ." Not so. An officer may stop and detain a person based on a reasonable suspicion criminal activity "has taken place, is occurring, or is about to occur; and . . . the person to be detained is involved in that activity." (People v. Souza (1994) 9 Cal.4th 224, 230.) Even setting aside the prosecution expert's opinion, the evidence was overwhelming that Deputy Ables had an appropriate basis to detain defendant, whether based on past, present, or immediate future behavior; to investigate the reported incident of vandalism by defendant; to interrupt the ongoing public disturbance defendant was creating by shouting obscenities at the deputies, among other things; or to prevent the imminent violence suggested by his repeatedly challenging Deputy Ables to "Pull your gun," and then grabbing for her duty belt.
In short, we find no reasonable probability that defendant was prejudiced by the admission of the challenged prosecution expert testimony. Defendant's claim of ineffective assistance of counsel fails on that basis. C. Defendant Was Not Prejudiced by the Circumstance That the Jury Was Not Instructed on Simple Assault and Battery as Lesser Included Offenses for Counts 2, 4, and 5.
With respect to count 3, the jury's instructions gave it the option of finding defendant guilty of the lesser included offense of simple battery (§ 242) instead of the charged offense of battery on a peace officer (§ 243, subd. (b)). Defendant argues that the trial court committed a reversible error when it failed to similarly instruct the jury on simple assault and battery as lesser included offenses with respect to counts 2, 4, and 5. We disagree.
The trial court is required to instruct the jury on all lesser included offenses supported by the evidence, regardless of the theories of the case proffered by the parties. (People v. Breverman (1998) 19 Cal.4th 142, 154-155 (Breverman).) Under the circumstances of this case, the People concede, and we agree, that simple assault and simple battery were lesser included offenses of the section 69 counts. (Brown, supra, 245 Cal.App.4th at p. 153.) However, the trial court is required to instruct on a lesser included offense only when the record contains substantial evidence from which a reasonable jury could conclude that the defendant is guilty of the lesser offense, but not the greater offense. (People v. Lopez (1998) 19 Cal.4th 282, 288.)
On appeal, "we employ a de novo standard of review and independently determine whether an instruction on the lesser included offense . . . should have been given." (People v. Manriquez (2005) 37 Cal.4th 547, 584.) Any error is subject to harmless error analysis; reversal is only required if "an examination of the entire record establishes a reasonable probability that the error affected the outcome." (Breverman, supra, 19 Cal.4th at p. 165.)
Here, even assuming it was error for the trial court not to have instructed the jury on simple assault and battery as lesser included offenses of counts 2, 4, and 5, any error was harmless. Defendant asserts that if the jury had been instructed on simple assault and battery, it would have had options for finding the deputies were acting unlawfully, while still holding defendant criminally liable for his own actions. Defendant's trial counsel, however, explicitly conceded that the actions of Deputies Lomeli and Moon were "lawful." Furthermore, the jury was instructed on simple battery as a lesser included offense of count 3, but nevertheless returned a verdict of guilty on the charged offense of battery on a peace officer, which required a finding that Deputy Ables was acting lawfully. There is no reason it would have decided the same issue differently with respect to count 2, had it been presented with additional options for lesser included offenses. Defendant therefore fails to demonstrate a reasonable probability that any instructional error affected the outcome.
D. Section 654 Does Not Require the Sentence for the Criminal Threats Conviction to Be Stayed.
Defendant contends that the punishment for his criminal threats conviction (count 3) must be stayed pursuant to section 654. He asserts that his "sole objective" was "to resist being detained," arguing that in making the criminal threats, he was "doing no more than narrating the physical actions he was engaged in at that exact moment, in order to further the same objective as that of the actions." While defendant's argument is a reasonable interpretation of the evidence, it is not the only reasonable interpretation. We therefore must affirm the trial court's implicit ruling that section 654 does not apply.
"Section 654 precludes multiple punishment for a single act or omission, or an indivisible course of conduct." (People v. Deloza (1998) 18 Cal.4th 585, 591.) "Whether a course of criminal conduct is a divisible transaction which could be punished under more than one statute within the meaning of section 654 depends on the intent and objective of the actor." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.) Section 654 does not bar multiple punishment where the defendant commits two crimes in pursuit of two independent objectives even if they are simultaneous. (People v. Latimer (1993) 5 Cal.4th 1203, 1212, 1216.)
"In the absence of any reference to [section 654] during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective." (People v. Tarris (2009) 180 Cal.App.4th 612, 626-627 [Fourth Dist. Div. Two].) "'"A trial court's implied finding that a defendant harbored a separate intent and objective for each offense will be upheld on appeal if it is supported by substantial evidence."'" (People v. Sanchez (2009) 179 Cal.App.4th 1297, 1310 [Fourth Dist., Div. Two].)
There is substantial evidence in the record to support the trial court's implicit finding that defendant's criminal threats were not part and parcel of his resistance to being detained. Defendant at least arguably was motivated by particular animus toward Deputy Ables, arising perhaps from their first contentious encounter earlier in the day. Before the physical struggle with the deputies, he berated her by name, making reference to their earlier encounter. During the struggle, he flailed his limbs to try to break free from all of the deputies, but intentionally aimed at least one blow specifically at Deputy Ables. After defendant was subdued, he told Deputy Moon that it was "all good" between him and the other deputies, but he had "nothing but pain" for Deputy Ables, and that he would "get her back." It is reasonable to conclude from this evidence that defendant intended not only to resist arrest by Deputy Ables (and the other deputies), but that he intended specifically to place her in fear for her safety as retaliation for what he perceived to be her mistreatment of him, both by "pull[ing a] gun" on him earlier in the day, and by kneeing him. Section 654 does not apply to bar multiple punishments under these circumstances.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: MILLER
J. SLOUGH
J.