Opinion
B328107
12-15-2023
THE PEOPLE, Plaintiff and Respondent, v. FRANK BEDNAR, Defendant and Appellant.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Stephanie C. Brenan and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Nos. LA093654, BR055442, Richard H. Kirschner, Judge. Affirmed.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Stephanie C. Brenan and Nancy Lii Ladner, Deputy Attorneys General, for Plaintiff and Respondent.
MOOR, J.
The jury found Frank Bednar guilty of violating a domestic relations court order (Pen. Code, § 273.6, count 2), resisting, delaying, or obstructing a peace officer (§ 148, subd. (a)(1), count 3) and contempt of court (§ 166, subd. (c)(1), count 4) for violating a court protective and stay away order (§ 136.2). Bednar was sentenced to three consecutive terms of 364 days in county jail.
All further statutory references are to the Penal Code.
Bednar was found not guilty of assault with a deadly weapon (§ 245, subd. (a)), a felony, and the lesser included offense of simple assault (§ 240), a misdemeanor, in count 1. Although he was not convicted of a felony, Bednar's case was transferred to this court from the Appellate Division of the Los Angeles County Superior Court because he was charged with a felony. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1095 [" 'a "felony case" is an action in which a felony is charged regardless of the outcome' "]; see also California Rules of Court, rule 8.304, subd. (a)(2).)
On appeal, Bednar contends that the trial court erred by denying his motion to exclude evidence that he refused to exit his mother's residence, and that Bednar's conviction of resisting, delaying, or obstructing a peace officer in count 3 must be reversed because, absent the challenged evidence, the remaining evidence is insufficient to support the conviction. Bednar further contends that the trial court erred by refusing to instruct the jury on resisting, delaying, or obstructing a peace officer under his proposed modified version of CALCRIM No. 2656.
We affirm the trial court's judgment.
FACTS
On October 20, 2020, the Los Angeles County Superior Court issued a temporary restraining order that required Bednar to stay away from his mother, Noreen Bednar, and his brother, Thomas Bednar. Bednar was also ordered to stay away from Noreen's car and home, and to move out of Noreen's home.
To avoid confusion, we refer to Bednar's relatives by their first names. No disrespect is intended.
Sometime before 9:00 a.m. on October 25, 2020, Los Angeles Police Department Officer Jason Compton went to Noreen's home where Noreen provided him a copy of the restraining order. Officer Compton then served Bednar, who was on the premises, with the restraining order. The officer advised Bednar that he was to stay away from Noreen, Thomas, Noreen's car, and Noreen's home, and warned Bednar that if he returned to the property he would be arrested. Officer Compton allowed Bednar to retrieve his personal property from Noreen's home and then escorted Bednar from the premises.
At around 10:45 a.m. that same day, Bednar returned to Noreen's home and burst through the unlocked front door. Noreen and Thomas were present in the house with Bednar's nephew, Anthony Zepeda. Bednar was holding a beer in a paper bag and screaming about the restraining order being fake. He loomed over Noreen in a hostile manner. Zepeda feared that Bednar would physically attack them. Bednar said he was going to get a knife from the kitchen. Bednar and Thomas began arguing. Noreen and Zepeda called the police. Bednar went into the kitchen and pulled something out of a drawer. Bednar returned and pointed a knife in Noreen and Thomas's direction. Zepeda told Thomas and Noreen to get out of the house for their safety. Zepeda left the house with Bednar following him. Zepeda felt that he was being chased and that Bednar would harm him. Bednar continued to yell and went into the garage for several minutes. He returned to the house and slammed the front door. Noreen exited the house and told Zepeda that Bednar had a knife. Thomas came outside right after her. Bednar was following them, holding a very long kitchen knife. Bednar raised the knife over his head and yelled for them to get out of "his" house. Noreen, Thomas, and Zepeda got into Zepeda's car, drove a short distance down the street, and waited for police to arrive.
When officers arrived on the scene they spoke with Noreen, Thomas, and Zepeda, who apprised them of the situation, including the fact that Bednar was holding a knife. Bednar was standing on an upstairs balcony. Bednar was upset and yelling. Officers asked and then ordered him to exit the house several times, but Bednar refused. Because Bednar refused to comply and was possibly still armed with a knife, the officers requested backup. A crisis negotiation team arrived and made radio contact with Bednar who remained on the upstairs balcony. A SWAT team led by Officer Alfred Corso was also deployed to Noreen's home. While Bednar was speaking with the crisis negotiation team, Officer Corso entered the home and locked the door to the bedroom adjacent to the balcony. Officer Corso listened to the radio communications and learned that Bednar was willing to surrender but did not want to be handcuffed. Officers refused Bednar's request, and he eventually agreed to handcuffing. Bednar was taken into custody.
DISCUSSION
Admission of Evidence/Sufficiency of the Evidence
Bednar first contends that the trial court abused its discretion by admitting evidence that he refused to exit Noreen's home. He argues that as an occupant of the house, his refusal to leave was activity protected by the Fourth Amendment and could not be used as evidence of his guilt. Bednar further argues that, absent evidence that he refused to leave the home, there is insufficient evidence to support his conviction for resisting, delaying, or obstructing a peace officer such that the conviction in count 3 must be reversed. Bednar's claim lacks merit.
Although the opening brief indicates that Bednar also objects to the admission of evidence that he refused to allow officers to enter the home, Bednar cites no to evidence that he denied officers entry.
We review the trial court's admission of evidence for abuse of discretion. (People v. Gonzalez (2021) 12 Cal.5th 367, 407.) The court abuses its discretion when it acts in a manner that is" 'arbitrary, capricious or exceeds the bounds of reason under the circumstances.'" (People v. Arevalo (2018) 19 Cal.App.5th 652, 656.)
"Section 148 imposes liability on '[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 ....' (§ 148, subd. (a)(1).) The legal elements of that crime are: '" '(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties.'" '" (People v. Francis A. (2019) 40 Cal.App.5th 399, 407.)" 'Section 148 is most often applied to the physical acts of a defendant. [Citation.] For example, physical resistance, hiding, or running away from a police officer have been found to violate section 148.'" (Id. at p. 408.)
The Fourth Amendment gives individuals "a constitutional right to refuse to consent to entry and search." (United States v. Prescott (9th Cir. 1978) 581 F.2d 1343, 1351.) However, the Fourth Amendment is only implicated where the defendant has"' "a legitimate expectation of privacy in the invaded place or seized thing." '" (People v. Nishi (2012) 207 Cal.App.4th 954, 960.) Because the facts are undisputed, whether Bednar had a reasonable expectation of privacy is a question of law that we review de novo. (People v. Saldana (2002) 101 Cal.App.4th 170, 173.)
Bednar argues that his "refusal to exit the premises . . . was a clear invocation of his constitutional prerogative as an occupant of the residence." He analogizes the circumstances of his case to People v. Wetzel (1974) 11 Cal.3d 104, and People v. Keener (1983) 148 Cal.App.3d 73. Those cases, however, involved defendants who were legitimate residents. In People v. Wetzel, at pages 107 to 110, the Supreme Court held that the defendant's insistence that officers could not enter her apartment without a warrant was an invocation of her constitutional rights, and that her conduct, standing alone, did not constitute resisting, delaying, or obstructing a peace officer under section 148. In People v. Keener, at pages 78 to 79, the Court of Appeal held that defendant's refusal to leave his apartment could not be used as evidence of consciousness of guilt in support of a sexual assault charge.
Unlike Wetzel and Keener, Bednar was not an occupant of the residence at issue, and, in fact, was legally prohibited from being there. Officer Compton had served Bednar with a restraining order, advised Bednar that he was to stay away from Noreen's home and that failure to do so would result in his arrest, and escorted Bednar from the house after he collected his personal property. "A 'person can have no reasonable expectation of privacy in premises on which they are wrongfully present ....'" (People v. Nishi, supra, 207 Cal.App.4th at p. 961.) As a person unlawfully present, Bednar had no reasonable expectation of privacy, and his actions were not constitutionally protected. (Ibid.) Accordingly, the trial court did not abuse its discretion by admitting evidence of Bednar's refusal to leave Noreen's home. Because Bednar's claim that the evidence is insufficient to support his conviction for resisting, delaying, or obstructing a peace officer rests entirely on his argument that this evidence was wrongly admitted, the contention necessarily fails.
In the reply brief, Bednar asserts for the first time that he had a reasonable expectation of privacy in Noreen's home because the restraining order was "temporary"-he lived there previously and might again if the family reconciled. The argument is waived because Bednar failed to raise it in the opening brief (People v. Clayburg (2012) 211 Cal.App.4th 86, 93 [point raised first in reply brief deemed waived]), but regardless, it is without merit. Bednar was served with a restraining order expressly prohibiting him from entering the house. An officer reminded him that the order forbade him from doing so and that he would face arrest if he returned before escorting Bednar from the home. Bednar was not present lawfully and had no good faith belief to the contrary.
Refusal to Give Pinpoint Instruction
Bednar next contends that the trial court erred by refusing to give a modified version of CALCRIM No. 2656, as he requested. Bednar argues that his proposed instruction clarified the defense's theory that Bednar's refusal to leave Noreen's home was constitutionally protected and could not support a conviction for resisting, delaying, or obstructing a peace officer. This contention also lacks merit.
" 'Upon proper request, a defendant has a right to an instruction pinpointing the theory of defense . . . if the theory proffered by the defendant is supported by substantial evidence' [citation], the instruction is a correct statement of law [citation], and the proposed instruction does not simply highlight specific evidence the defendant wishes the jury to consider [citation]. [¶] The trial court may properly refuse an instruction highlighting a defense theory if it is 'duplicative or potentially confusing.' [Citation.] '[W]here standard instructions fully and adequately advise the jury upon a particular issue, a pinpoint instruction on that point is properly refused.' [Citations.] Put another way, '[t]here is no error in a trial court's failing or refusing to instruct on one matter, unless the remaining instructions, considered as a whole, fail to cover the material issues raised at trial.'" (People v. Jo (2017) 15 Cal.App.5th 1128, 1174.)
Bednar proposed to add the following language to CALCRIM No. 2656:
"When a peace officer does not have a warrant, a defendant's refusal to allow entry of a home cannot constitute a violation of Penal Code section 148(a) even if
"(1) there is a proper demand by a peace officer that the defendant open the door, OR
"(2) a peace officer has a right to enter.
"A defendant is not required to exit his residence upon the commands of a peace officer." (Italics and fns. omitted.)
The proposed instruction included footnotes to supporting case law.
Even assuming (without deciding) that the instruction was a correct statement of the law that did not simply highlight certain evidence, the defense's theory was not supported by substantial evidence. As we have discussed, Bednar's Fourth Amendment rights were not implicated because the undisputed facts demonstrate that his presence in Noreen's home was unlawful. The jury could properly consider Bednar's refusal to leave the home as evidence of resisting, delaying, or obstructing a peace officer in violation of section 148. The trial court did not err by refusing to instruct the jury under Bednar's modified version of CALCRIM No. 2656.
The same would be true of any evidence that Bednar refused officers entry into the home, but no evidence of this type was presented to the jury.
DISPOSITION
We affirm the trial court's judgment.
We concur: RUBIN, P. J., KIM, J.