Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 05SF0309, Dan McNerney, Judge.
Anna M. Jauregui, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Rhonda Cartwright-Ladendorf and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
IKOLA, J.
Defendant Corey Deshawn Austin challenges his convictions for possession of a firearm by a felon and resisting a police officer. In his petition, defendant contends his counsel provided ineffective assistance by failing to subpoena a witness who wrote a letter claiming he possessed the firearm without defendant’s knowledge. We issued an order to show cause (OSC) and directed the trial court to hold an evidentiary hearing. The court found the witness would have invoked his right against self-incrimination and not testified. But it also found the witness’s letter could have been authenticated.
Due to these findings, we grant defendant’s petition as to the possession of a firearm conviction. Defense counsel performed deficiently by failing to subpoena the witness, whose refusal to testify would have allowed the defense to offer the letter as a declaration against interest. A reasonable probability exists that the admission of the letter would have led to a more favorable result for defendant.
We reject, however, defendant’s ineffective assistance claims as to the resisting an officer conviction. Defense counsel did not act deficiently by failing to object to the prosecution’s closing argument or request certain jury instructions.
We also reject defendant’s claims in his consolidated appeal. Substantial evidence showed the lawful detention element of resisting an officer. No reversible instructional errors appear on the record. And no cumulative error requires reversal.
FACTS
The Trial
A resident of a San Juan Capistrano mobile home park called 911 one evening to report three suspicious men. The men were sitting and “shuffling” inside a car for over an hour. The car was parked backwards in a parking stall. The resident, who had worked maintenance at the mobile home park for three years and knew its residents, did not recognize the car or the men.
An Orange County Sheriff’s deputy and an explorer scout responded to the mobile home park. The dispatcher had informed the deputy “three male Blacks unknown to the area [were] standing around... a gold car near the laundry room.” The deputy drove his marked patrol car towards the suspicious parked car. Defendant was standing between the car and the open driver’s door, looking in the deputy’s direction. Defendant ducked into the car, appearing to place something in it, and quickly walked away from the deputy. The deputy leaned out of his patrol car’s window and announced, “Stop, Sheriff’s Department.” Defendant started running.
The deputy got out of the patrol car, ran after defendant, and tackled him. Defendant starting punching the deputy and the explorer scout. The deputy subdued, arrested, and searched defendant, finding car keys in his pocket. The deputy opened and searched the parked car. He found a loaded, sawed-off shotgun in the front passenger seat, with the barrel pointed away from the driver’s side. In the meantime, another man in the car ran away, eluding police.
The Orange County District Attorney filed an information charging defendant with one count each of possession of a firearm by a felon (Pen. Code, § 12021, subd. (a)(1)) and resisting a peace officer (§ 148, subd. (a)(1)). It alleged defendant had suffered four prior strike convictions (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)) and served one prior prison term. (§ 667.5, subd. (b).)
All further statutory references are to the Penal Code unless otherwise stated.
At trial, defendant testified he drove two friends to the mobile home park to pick up one of their relatives. One of the other two men, Justin Perry, was wearing a backpack. Defendant and Perry waited in the car while the other man went to get his relative. Perry moved around in the car, going from the rear seat to the front passenger seat. The other man started arguing with his relative. Defendant got out of the car to tell them to be quiet, leaving Perry alone in the car. When the deputy arrived, defendant ran because he had left San Diego County without notifying his parole officer. When the officer asked him to stop running, defendant stopped, put his hands up, and knelt down. The deputy tackled defendant nonetheless, and the deputy and the explorer scout beat him up. Perry ran away in the meantime.
Defendant also testified he later arranged for Perry to speak to the District Attorney and accept responsibility for the shotgun. He explained his former lawyer, Stu Grant, declined to allow this. In a sidebar conference, defendant’s trial counsel, David Nisson, told the court he had a handwritten letter from Perry admitting he possessed the shotgun in the car without defendant’s knowledge. He conceded lacking foundation to introduce the letter, and promised not to mention it while questioning defendant.
The jury found defendant guilty on both counts. The court found true the prior strike and prior prison term allegations. The court sentenced defendant to a total term of 25 years to life in state prison.
The Habeas Proceedings
Defendant appealed and petitioned for a writ of habeas corpus. He filed several exhibits with his petition. The exhibits included declarations from defendant’s trial counsel, his appellate counsel, and defendant’s then-girlfriend.
Trial counsel Nisson stated defendant’s former lawyer, Grant, conceded stopping Perry from giving a statement to prosecutors. Grant gave Nisson a handwritten letter from Perry stating Perry possessed the shotgun without defendant’s knowledge. Nisson contacted Perry, who told him several times defendant did not know about his shotgun. Perry promised to appear in court on defendant’s behalf, but never did. Nisson did not subpoena Perry for trial. He did not have Perry’s address or telephone number, and believed an investigator could not locate Perry without this information.
Appellate counsel Anna Jauregui stated she found “biographical and contact information” for Perry in the files she received from Nisson. Nisson told her he did not realize the files contained this information (as Nisson conceded in his declaration). Jauregui used it to locate court documents containing Perry’s full legal name, address, telephone number, date of birth, height, weight, and driver’s license number. Jauregui attached these court documents as exhibits to the petition.
Appellate counsel also attached Perry’s handwritten letter, which she had received from Nisson. The letter states, with original spelling and grammatical mistakes uncorrected, “To whom it may concern, [¶] I Justin Perry would like to take full responsibility for the charges, being brought on Corey Austin, the gun that was found in his car was in fact mine while I was about to exit the car I saw a police officer pointing a gun at me telling me to get down, I then drop the gun as I exit the vehical I the sit down on the curb while the police officer radio’s for back up, I see he turns his attention from me and I get up and run, leaving behind the gun in Mr. Austin’s car, Mr. Austin did not know anything about me having this gun I just had bought the gun and wanted to carry it, I drop the gun and ran because I was scared and didnt want to go to jail, again Corey Austin was unaware of me having the gun the possession charge should be droped from Corey Austin and brought on me I take full responsibility for having that weapon. Signed Justin Perry [¶] [telephone number].”
Defendant’s then-girlfriend, Melissa Pradd, stated Perry had told her he possessed the shotgun without defendant’s knowledge. She saw Perry’s letter, and attached a copy of it to her declaration. She arranged for a friend to drive Perry to the courthouse to “take responsibility for the gun.” No defense counsel or investigator had asked her about Perry.
Melissa Pradd has married and changed her name.
We granted defendant’s request to consolidate the appeal and the habeas petition. We issued an OSC why the writ should not issue. A return and traverse were filed in our court.
We ordered the trial court “to hold an evidentiary hearing forthwith on... whether trial counsel prejudiced defendant by failing to subpoena Justin Perry.” We directed the court “to make findings of fact returnable to this court on the following issues: (1) Would Justin Perry have testified if he had been subpoenaed? (2) Would Justin Perry’s testimony have been consistent with the content of the letter in which he purportedly claimed to have possessed the shotgun without defendant’s knowledge? (3) If Justin Perry had testified, what factors, if any, would have weighed for or against his credibility? (4) If Justin Perry would not have testified in response to a subpoena, would defense counsel have been able to authenticate Justin Perry’s purported letter? (5) Would Melissa Pradd have testified if she had been subpoenaed? (6) Would Melissa Pradd’s testimony have been consistent with the content of the declaration in which she claimed Justin Perry told her he possessed the shotgun without defendant’s knowledge? (7) If Melissa Pradd had testified, what factors, if any, would have weighed for or against her credibility?”
At the evidentiary hearing, Perry appeared as a witness but refused to answer questions, following his counsel’s advice “not to answer... on the basis of his Fifth Amendment rights.” Counsel stipulated Perry was unavailable as a witness. A questioned document examiner opined Perry signed the letter acknowledging possession of the shotgun. Pradd testified Perry told her the day after defendant’s arrest that the shotgun “was his and that no one knew that he had it and that he was going to do the right thing by turning himself in.” She further testified Perry told her “he was going to write a letter to take to the courthouse,” she arranged for someone to give Perry a ride to court, and she saw the letter in his hand.
The trial court returned its factual findings. It found Perry would “have refused to answer questions had he been called to testify at defendant’s trial.” It also found “[d]efense counsel would have been able to authenticate Justin Perry’s purported letter” based on the expert testimony. As for Pradd, the court found she would not have testified consistently with her declaration because she “was never asked by any attorney or investigator about Mr. Perry or the letter,” which suggests “she did not disclose to defense counsel that she had such information.” It further found that if defense counsel had questioned Pradd about the letter, “her failure to disclose such information to the defense prior to trial would be a substantial factor weighing against her credibility as a witness.”
DISCUSSION
Defense Counsel Provided Ineffective Assistance by Failing to Subpoena Perry
In his habeas petition, defendant contends trial counsel Nisson provided ineffective assistance by failing to thoroughly investigate Perry’s statements and subpoenaing him to testify at trial. If Perry failed to appear or testified inconsistently with his prior statements, defendant reasons, Nisson could have offered Perry’s letter into evidence and called defendant’s then-girlfriend to testify about Perry’s statements to her.
To prove his ineffective assistance claim, defendant must show (1) “counsel’s performance was deficient,” and (2) “the deficient performance prejudiced the defense.” (Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
As for the first prong - deficient performance - the right to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15) “entitles the defendant not to some bare assistance but rather to effective assistance. [Citations.] Specifically, it entitles him to ‘the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.’ [Citations.] [¶] Under this right, the defendant can reasonably expect that in the course of representation his counsel will undertake only those actions that a reasonably competent attorney would undertake. But he can also reasonably expect that before counsel undertakes to act at all he will make a rational and informed decision on strategy and tactics founded on adequate investigation and preparation.” (People v. Ledesma (1987) 43 Cal.3d 171, 215 (Ledesma).) “‘There is a risk of “second-guessing” trial counsel after the event. Nonetheless, while acknowledging the wide latitude and discretion necessarily vested in trial counsel in the area of tactics and strategy, we stress that the exercise of that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.’” (In re Hall (1981) 30 Cal.3d 408, 426 (Hall) [counsel acted deficiently by failing to call alibi and third party culpability witnesses].)
As for the second prong - prejudice - “defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland, supra, 46 U.S. at p. 694.)
Nisson’s failure to subpoena Perry was deficient. To be convicted of possession of a firearm by a felon, defendant must have intentional possession or control of a firearm (People v. Jeffers (1996) 41 Cal.App.4th 917, 922-923 (Jeffers)) with “knowledge of the character of the object possessed....” (People v. Mendoza (1967) 251 Cal.App.2d 835, 843.) Perry’s statements and letter corroborate defendant’s testimony he did not know anything about the shotgun in the car. Perry, if believed, would establish a meritorious defense to possession of a firearm by a felon.
The Attorney General contends Nisson acted adequately by contacting Perry and getting him to agree to appear at court. To the contrary, this shows Nisson understood the importance of Perry’s testimony yet failed to take the obvious step of issuing a subpoena to compel his attendance. Nisson’s declaration shows he had no tactical reason for this oversight. Rather, he states only that he did not have accurate contact information for Perry (his telephone number no longer worked) and did not think an investigator could find him. Nisson was unaware his own files contained contact information for Perry including his address, telephone number, date of birth, and relatives’ names.
And Nisson’s deficient performance prejudiced defendant by precluding admission of Perry’s letter and his statements to Nisson and Pradd as declarations against interest. (Evid. Code, § 1230.) “A party who maintains that an out-of-court statement is admissible under this exception as a declaration against penal interest must show that the declarant is unavailable, that the declaration was against the declarant’s penal interest, and that the declaration was sufficiently reliable to warrant admission despite its hearsay character.” (People v. Cudjo (1993) 6 Cal.4th 585, 607.) Refusing to testify would render Perry unavailable. (Ibid.) Admitting possession of a loaded, sawed-off shotgun is against Perry’s penal interest. And reliability is indicated by the fact Perry made multiple statements over time to different people in an attempt to take legal responsibility for the shotgun. (Cudjo, supra, 6 Cal.4th at p. 607 [reliability derived from “‘the words’” of the statement, “‘the circumstances under which they were uttered, the possible motivation of the declarant, and the declarant’s relationship to the defendant’”].)
See sections 12020, subdivision (a)(1), barring possession of “short-barreled shotgun” and “any undetectable firearm,” 12031, subdivision (a)(1), barring carrying of a loaded weapon.
Perry’s letter and statements would have strongly corroborated the primary defense to the firearm possession count: defendant did not know the gun was in the car. Defendant so testified, and the jury asked for readbacks of his testimony, as well as the testimony of the deputies. A reasonable probability exists that defendant would have obtained a more favorable result on the possession of a firearm by a felon count had the jury considered Perry’s claim he possessed the firearm without defendant’s knowledge. (Strickland, supra, 46 U.S. at p. 694.)
The Attorney General contends Perry’s letter and statements would have been inadmissible. It asserts Perry’s claim that defendant did not know about the gun was collateral to Perry’s self-incriminating statements and not “specifically disserving” of his penal interest. (People v. Leach (1975) 15 Cal.3d 419, 441.) But Perry’s claim is not the typical, inadmissible collateral statement - an “‘attempt[] to shift blame or curry favor’ [citation] with the authorities.” (People v. Duarte (2000) 24 Cal.4th 603, 615, fn. omitted (Duarte).) Instead, Perry’s claim about defendant’s lack of knowledge is part and parcel of Perry’s admission he alone possessed the gun. Moreover, Perry’s claim reasonably implies he kept the gun hidden, at least initially, in the backpack he was wearing. This would be additionally against Perry’s penal interest. (See § 12025, subd. (a)(1) [barring possession of a concealed weapon in a vehicle].) The Attorney General also contends Perry’s statements were unreliable because they were made to exonerate defendant. On the contrary, the statements are reliable precisely because Perry offered them freely, to no advantage to himself. (Cf. Duarte, supra, 24 Cal.4th at pp. 615, 617 [statement by a person “‘who comes in off the street to confess complicity in a crime’” more reliable than statements by “‘sources who are themselves the focus of pending criminal charges or investigations’”].)
In sum, Nisson performed deficiently by failing to subpoena Perry, and the failure to do so prejudiced defendant as to the firearm possession count. The conviction on this count must be vacated. (See Strickland, supra, 46 U.S. at pp. 694, 697.) “The People remain free to retry [defendant] for the crime[] at issue.” (In re Jones (1996) 13 Cal.4th 552, 589, fn. omitted (Jones) [granting habeas petition due to ineffective assistance of counsel].)
Substantial Evidence Showed The Police Acted Lawfully in Detaining Defendant
Turning to the resisting an officer conviction, defendant contends on appeal the court wrongly denied his motion to dismiss that count. He contends insufficient evidence showed the officer was acting lawfully when defendant resisted. (See § 148, subd. (a)(1) [barring resisting an officer “in the discharge or attempt to discharge any duty of his or her office or employment”]; Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894 (Yount) [“section 148, subdivision (a)(1)... requires that the officer be lawfully engaged in the performance of his or her duties”].)
A lawful detention requires reasonable suspicion of defendant’s involvement in criminal activity. “[A] police officer may in appropriate circumstances and in an appropriate manner approach a person for purposes of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” (Terry v. Ohio (1968) 392 U.S. 1, 22.) “[A]n officer may, consistent with the Fourth Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot.” (Illinois v. Wardlow (2000) 528 U.S. 119, 123 (Wardlow).) “Reasonable suspicion is a less demanding standard than probable cause... [and] can arise from information that is less reliable than that required to show probable cause.” (Alabama v. White (1990) 496 U.S. 325, 330.) “[T]he essence of all that has been written [about reasonable suspicion] is that the totality of the circumstances - the whole picture - must be taken into account.” (U.S. v. Cortez (1981) 449 U.S. 411, 417.)
Here, the totality of the circumstances gave the deputy reasonable suspicion that defendant may have been involved in criminal activity. The deputy testified he received a radio call reporting three black males unknown to the area in a gold car at the mobile home park. The officer found defendant in a gold car parked near the mobile home park’s laundry room. As the officer drove toward the car, defendant appeared to place something in it and walked away quickly. Defendant broke into a run when the deputy asked him to stop. These circumstances justified detaining defendant after he fled.
Defendant challenges whether the deputy had any information the three men were suspicious. He relies upon a purported sheriff’s department operations report filed with his habeas petition, which contains an entry: “3 males sitting in a gold Cadillac backed in by the upper level laundry room. Inf is maintance [sic] man.” He also relies upon appellant counsel’s purported transcription of the radio call in her declaration filed with the habeas petition. Counsel states she heard the radio dispatcher tell the deputy, “Check for 3 males sitting in a gold Cadillac, unknown plate. They’re backed in by the upper level laundry room which is located at the top of the hill to the right. Informant is the maintenance man.” Defendant concludes the radio dispatcher did not tell the deputy the three men were suspicious, unknown to the area, or had been waiting in a parked car for an hour.
The purported report and transcript do not help defendant. They were not introduced into evidence at trial and are not authenticated in the habeas petition. Appellate counsel states in her declaration only that she received the report and the audiotape she transcribed from Nisson. This is insufficient to show the report or transcription are authentic. Even if the report is authentic, it appears to contain only notes. It does not contradict the officer’s testimony he was informed the three men were “unknown in the area.” This testimony is also corroborated by the deputy’s report, prepared the day of the arrest, which defendant attached to his habeas petition. It states the deputy was “dispatched to the trailer park... reference suspicious circumstances. The informant advised three male Blacks, that were unknown to the area, sitting in a gold car in front of the laundry room for over an hour.”
And whatever the content of the radio call, defendant still ducked into the parked car as if to place something in it upon seeing the deputy, walked away quickly, then started into run when the deputy asked him to stop. “[N]ervous, evasive behavior is a pertinent factor in determining reasonable suspicion. [Citations.] Headlong flight - wherever it occurs - is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” (Wardlow, supra, 528 U.S. at p. 124.) “[U]nprovoked flight is simply not a mere refusal to cooperate. Flight, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite. Allowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business or to stay put and remain silent in the face of police questioning.” (Id. at p. 125; but see id. at p. 126 (conc. opn. of Stevens, J.) [no bright-line rule reasonable suspicion always shown by flight alone].)
Defendant contends his running away from the deputy cannot contribute to reasonable suspicion because the deputy had already asked him to stop. But a detention does not occur when a police officer says “stop.” It occurs when the suspect actually stops. “A person is seized by the police... when the officer, ‘“by means of physical force or show of authority,”’ terminates or restrains his freedom of movement....” (Brendlin v. California (2007) 551 U.S. 249, 254.) “[T]here is no seizure without actual submission; otherwise, there is at most an attempted seizure, so far as the Fourth Amendment is concerned.” (Ibid.) “[A] fleeing man is not seized until he is physically overpowered....” (Id. at p. 262; accord, California v. Hodari D. (1991) 499 U.S. 621, 629 [“assuming that [the officer’s] pursuit in the present case constituted a ‘show of authority’ enjoining [defendant] to halt, since [defendant] did not comply with that injunction he was not seized until he was tackled”].)
In sum, substantial evidence shows deputy had reasonable suspicion to detain defendant. The court did not err by denying his motion to dismiss the resisting an officer count.
Because defendant was lawfully detained, his counsel did not act ineffectively by failing to move to suppress the shotgun as the fruit of an illegal detention, arrest, and search.
Defense Counsel Did Not Perform Ineffectively By Failing to Object to Closing Argument
In his petition, defendant contends counsel provided ineffective assistance by failing to object to the prosecutor’s statements in closing argument regarding the detention. The prosecutor told the jury, “Whether or not [the deputy is] performing his duties, what do I have to show with that? I have to show he’s doing something he does, that peace officers do, going and responding to calls, responding to 911 calls, investigating suspicious circumstances, all things he told us on the stand are some of his duties.... [¶] In other words, Deputy Moore needed to detain defendant at that time to investigate further because he was getting phone calls, 911 was getting phone calls saying there was this suspicious circumstances going on in this neighborhood. So he needed to go out there, look around, see what’s going on, detain anybody, interview them, go figure out what the deal is.” Defendant asserts the prosecutor misstated the facts because the radio dispatcher did not tell the officer there were suspicious circumstances. He further asserts the prosecutor misstated the law by suggesting the officer could lawfully detain anyone at the scene because responding to calls is what “peace officers do.”
An objection was unnecessary because the court’s instructions cured any error in the prosecutor’s statements. The court told the jury, “You must decide what the facts are in this case. It is up to you, exclusively, to decide what happened based only on the evidence presented in this trial. [¶]... [¶] You must follow the law as I explain it to you.... If you believe the attorneys’ comments [on the] law conflict with my instructions, you must follow my instructions.” (CALCRIM No. 200.) It further instructed each juror to “decide what the facts are in this case. You must use only the evidence that was presented in this courtroom.... [¶] Nothing that the attorneys say is evidence. In their opening statements and closing arguments, the attorneys discuss the case, but their remarks are not evidence.” (CALCRIM No. 222.) “We presume that the jury heeded the admonition[s] and any error was cured.” (People v. Wash (1993) 6 Cal.4th 215, 263.)
In addition, defendant suffered no prejudice from the failure to object. (Strickland, supra, 46 U.S. at p. 694; cf. People v. Barnett (1998) 17 Cal.4th 1044, 1133 [conviction reversed for prosecutorial misconduct only when reasonably probable that proper conduct would have led to more favorable result].) As the evidence overwhelmingly showed a lawful detention, defendant would not have obtained a more favorable result had defense counsel objected.
Defendant also contends defense counsel should have objected when the prosecutor argued the deputies “know these two males had been sitting out there for an hour, that there were three males alleged in the beginning in this vehicle for over an hour, so they approach the vehicle. [¶] What happens? Both men run.” Defendant contends the prosecutor misstated the facts because the maintenance man, not the deputy, knew the car had been parked for over an hour. But the prosecutor immediately corrected himself. The next words out of his mouth were, “I’m getting beside myself. I need to focus on [the maintenance man] here. Sorry about that.” There was no misconduct here, and any objection would have been futile. (People v. Price (1991) 1 Cal.4th 324, 386-387 [counsel need not make futile objections].)
There Was No Reversible Instructional Error
Defendant raises several purported instructional errors on appeal and in his habeas petition. In reviewing these claims, “we consider the language of the instruction at issue, the instructions as a whole, and the arguments of counsel.” (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1321 (Bordelon).) None has merit.
Because we grant the habeas petition as to the possession of a firearm by a felon conviction, we need not reach whether counsel should have requested (or the court should have given sua sponte) jury instructions on the doctrines of possession of a firearm through misfortune and third party culpability.
First, defendant contends (on appeal) the court wrongly instructed the jury on the elements of a lawful detention, and (in his habeas petition) that counsel performed ineffectively by not objecting to the improper instruction. The court instructed the jury, “Defendant is charged in [c]ount 2 with resisting or obstructing or delaying a peace officer in the performance or attempted performance of his duties. [¶] To prove defendant is guilty of this crime, the People must prove, number one, [the deputy] was a peace officer lawfully performing or attempting to perform his duties as a peace officer....” It further instructed the jury, “A police officer is not lawfully performing his or her duties if he’s unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties. Instruction [CALCRIM No.] 2670 explains when an arrest or detention is unlawful and when force is unreasonable or excessive.” The court then instructed the jury pursuant to CALCRIM No. 2670, “A peace officer may legally detain someone if, number one, the specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is or is about to be involved in activity relating to crime; two, a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful. [¶] In deciding whether the detention was lawful, consider evidence of the officer’s training and experience and all the circumstances known by the officer when he or she detained the person.”
(But see Yount, supra, 43 Cal.4th at p. 899 [“‘a defendant might resist a lawful arrest, to which the arresting officers might respond with excessive force to subdue him. The subsequent use of excessive force would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of the criminal defendant’s attempt to resist it’”].)
Defendant contends these instructions are legally incorrect because they did not direct the jury to determine whether and when a detention occurred, did not define a detention, and did not state that reasonable suspicion must be subjective and objective.
The instructions are adequate. They plainly state an officer is not performing his lawful duties if he is making an unlawful detention, unmistakably calling for the jury to determine whether he detained defendant at all. They do not define detention, but no issue existed at trial as to whether defendant was detained. And they adequately address the subjective and objective facets of reasonable suspicion. They state the officer himself must suspect criminal activity based on specific facts known to him, and that the same facts would rouse the same suspicion in a reasonable officer. At any rate, any error in the instructions was not prejudicial because overwhelming evidence showed defendant was lawfully detained. (See Strickland, supra, 46 U.S. at p. 694.)
Second, defendant contends (on appeal) the court wrongly instructed the jury on the use of force to resist an unlawful detention, and (in his habeas petition) that counsel performed ineffectively by not objecting to the improper instruction. The court instructed the jury, “If a person knows or reasonably should know that a peace officer is arresting or detaining him, the person must not use force or any weapon to resist the officer’s use of reasonable force. However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known the officer was arresting him.” He asserts the first sentence of this instruction does not pertain to the offense with which he was charged, resisting an officer. (§ 148, subd. (a)(1).) It applies only to an alleged violation of section 834a, which bars persons from using force to resist any attempted detention or arrest, lawful or not. The use notes for the instruction state, “if instruction is only relevant to a charge violating... section 148, the court must not give the bracketed portion in section C” - the challenged first sentence. (Bench Note to CALCRIM No. 2670.) He claims the erroneous inclusion of the first sentence allowed the jury to find defendant guilty of resisting an officer even though the detention was unlawful.
No “‘reasonably likelihood’” exists the jury misconstrued the instruction as defendant suggests. (Bordelon, supra, 162 Cal.App.4th at p. 1321.) The second sentence plainly directs the jury to acquit defendant of resisting an officer if the detention was unlawful. Moreover, any error would not have prejudiced defendant because overwhelming evidence showed he was lawfully detained. (See Strickland, supra, 46 U.S. at p. 694.)
DISPOSITION
The petition for writ of habeas corpus is granted as to the firearm possession count, and the judgment of conviction as to that count is vacated. The petition is denied as to the resisting an officer count, and the conviction on that count is affirmed. The matter is remanded to the trial court for further proceedings. Our prior OSC, having served its purpose, is discharged.
The clerk of this court is directed to send a copy of this opinion to the State Bar and to attorney David Nisson pursuant to Business and Professions Code section 6086.7, subdivision (b). (See Jones, supra, 13 Cal.4th at p. 589, fn. 9.)
WE CONCUR: SILLS, P. J. RYLAARSDAM, J.