Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. SCD226463 Howard H. Shore, Judge.
HALLER, J.
Antonio Figueroa appeals from a judgment convicting him of various offenses arising from his driving a stolen vehicle while intoxicated, colliding with another vehicle and leaving the scene, and resisting the officers who arrested him. He argues (1) he was improperly convicted of both stealing a vehicle and receiving the same stolen vehicle, and (2) the trial court erred by failing to instruct the jury on officer use of excessive force as a defense to the offense of resisting an officer. We reject his contentions of reversible error and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
At about 5:00 p.m. on March 28, 2010, Jordan Pani parked his Nissan car across the street from his residence on 30th Street in San Diego. Sometime after this, his car was stolen. At about 10:50 p.m. that same night, a person driving the Nissan rear-ended a car driven by Michael Garcia as Garcia was stopped at a red light on University and Swift Avenues. The driver of the stolen Nissan fled from the scene of the collision on foot.
Pani had not locked the car, had left the windows rolled down, and had left a spare ignition key in the center console.
Pedestrian Tania Thureson witnessed the collision. At trial she identified Figueroa as the driver of the Nissan, and testified that she saw him exit the vehicle and run northward up an alley. Pablo Ceniceros heard the collision from his living room. When he went outside, he saw a man running in an alley, and at trial he identified Figueroa as the man.
The driver of another vehicle followed the fleeing man, and then returned to the scene and told the police that the hit-and-run driver was now walking westbound on El Cajon Boulevard. About one and one-half to two miles from the scene of the collision, Officer Lawrence Cahill spotted Figueroa walking westbound on El Cajon Boulevard. Cahill asked Figueroa to step back to the patrol car and to put his hands on the hood of the car. Figueroa complied, and Cahill performed a pat-down search for weapons and handcuffed Figueroa's hands behind his back. Cahill testified that during the pat-down Figueroa tensed his muscles and remained "slightly rigid, " but up to this point he complied with the police requests.
Cahill testified that Figueroa matched a witness's description of the hit-and-run driver. Police officers testified that they received witness descriptions stating the driver was Hispanic, and providing varying clothing descriptions, including a light-colored or gray hooded sweatshirt with jeans, or a white t-shirt with khaki pants, or a hooded sweatshirt with khaki shorts and black shoes. At trial, collision victim Garcia testified the hit-and-run driver was wearing a hooded sweatshirt; witness Ceniceros testified he was wearing a tan, white, or goldish-looking sweatshirt and light colored pants; and witness Thureson testified he was wearing a mustard-colored hooded sweatshirt and light colored jeans or pants. When the police encountered Figueroa a couple of miles from the accident scene, he was wearing a white tank top t-shirt, khaki mid-length shorts, and black shoes. In closing argument, the prosecutor suggested to the jury that Figueroa removed his sweatshirt as he was fleeing the scene.
Figueroa asked why he was being stopped. Cahill responded they were contacting him for a traffic collision, and Figueroa stated he was only walking to a bus. When a second officer (Officer Steve Sdringola) arrived to assist Cahill, Figueroa became irate and began shouting obscenities at the officers, saying he did not do anything. The officers placed him in the back of the police car. Figueroa became more belligerent and continued to yell that he was innocent. Once in the car, Figueroa asked that the windows be rolled down because he was claustrophobic. Cahill initially rolled the back windows down, but rolled them back up when Figueroa continued shouting and screaming obscenities. Figueroa began to bash his forehead into the cage dividing the front and back seats of the car, and then started kicking the back door hard enough to make the door flex out from the kicks. Figueroa continued saying that he did not do anything wrong and he appeared to be protesting being handcuffed and being placed in the back of the car.
After rolling the back windows back up, Cahill rolled down the front car windows.
The officers pulled Figueroa out of the car and placed him in "maximum restraint" by tying his feet and connecting them to his waist or hand restraints. To accomplish this, Figueroa was laying on his stomach, one officer was holding his feet, and another officer was at his shoulders. Figueroa was shouting and screaming " '[s]hoot me' " and " '[k]ill me now.' " Figueroa started banging his forehead against the sidewalk, causing a bump on his head that started to bleed. Officer Sdringola put his hand on the back of Figueroa's head to stop him from doing this.
The officers placed Figueroa back in the police car. Figueroa continued yelling and screaming and thrashing around, attempting to free himself. At one point he tried to hit his head on the cage, and the officers placed him on his side and used seat belts to restrain him.
Figueroa appeared to be intoxicated; i.e., he smelled of alcohol and had watery, bloodshot eyes, slurred speech, and a somewhat unsteady gait. Because of Figueroa's belligerence and lack of cooperation, the police decided not to attempt a curbside identification or field sobriety exam. At 12:20 a.m. on March 29, Figueroa's blood was drawn at the police station. His blood alcohol level measured.19 percent, and it was estimated to have been about.20 at the time of the collision.
Testing of DNA found on the steering wheel of the stolen Nissan showed that at least two people contributed to the DNA and that Figueroa was a possible contributor to the DNA mixture, with a probability of 1 in 880 million that a person selected at random from the Hispanic population would show this DNA match. The owner of the Nissan (Pani) testified that when he recovered his car, the stereo had been ripped out, the subwoofer and amplifier had been removed, and several boat engine heads that were stored on the backseat were gone. Pani found a large black suitcase that did not belong to him in the car.
Defense
Testifying on his own behalf, Figueroa stated that he never drove Pani's car and that he had nothing to do with the collision. He testified that he was drunk and walking on El Cajon Boulevard to catch a bus to a downtown shelter because he was homeless. As he was preparing to cross the street at a stoplight, a police officer approached and asked him if he was on parole or probation. Figueroa responded that he was on parole. The officer told him that he had just been involved in a hit and run. Figueroa responded, " 'You're full of shit.' " Figueroa and the officer started "raising [their] voice[s]." The officer put Figueroa's hands on the police car and then handcuffed him. Figueroa stated that he raised his voice because the officer was falsely accusing him.
When the officer put him into the police vehicle, Figueroa asked him to roll the windows down because he felt claustrophobic and he was on medication for depression and anxiety. The officer ignored him, and he started kicking the door. Figueroa denied that he was kicking so hard that the door started to flex, and denied that he was banging his head against the cage. The officer pulled him out of the car; waited for some other officers to come help him; tied his hands to his feet "like a pretzel" so he could not move his feet; and then put him back into the car. He testified he did not think he was banging his head on the sidewalk, stating that he might have bumped his head on the concrete when the police dragged him out of the car. He did not recall telling the police to shoot him. He did recall stating " '[y]ou're still a bitch' " to the officer because the officer put his leg on his neck and he could not breathe that well.
Jury Verdict and Sentence
The jury convicted Figueroa of unlawful taking or driving of a vehicle (Veh. Code, § 10851, subd. (a)) and receiving a stolen vehicle (Pen. Code, § 496d). He was also convicted of several misdemeanor offenses; i.e., resisting an officer (Pen. Code, § 148, subd. (a)(1)), hit-and-run driving (Veh. Code, § 20002, subd. (a)), driving under the influence of alcohol (Veh. Code, § 23152, subd. (a)), and driving with a.08 percent or more blood alcohol level (Veh. Code, § 23152, subd. (b)). The court found true several prior convictions and a prior prison term enhancement. He was sentenced to five years in prison, consisting of four years for the unlawful taking or driving conviction with a prior, and one year for the prison prior.
DISCUSSION
I. Convictions Under Vehicle Code Section 10851, Subdivision (a) and Penal Code Section 496d
Figueroa argues that he was improperly convicted of both the theft of a vehicle under Vehicle Code section 10851, subdivision (a) (hereafter section 10851(a)), and receipt of the same stolen vehicle under Penal Code section 496d.
Subsequent unspecified statutory references are to the Penal Code.
A person who has been convicted of theft of property may not also be convicted of receiving the same stolen property. (§ 496, subd. (a); People v. Garza (2005) 35 Cal.4th 866, 871 (Garza).) In Garza, the court evaluated how the prohibition against dual convictions for both stealing and receiving the same property should be applied in the context of a section 10851(a) conviction, which may be violated by unlawful driving or taking of a vehicle. The Garza court concluded that a defendant convicted of section 10851(a) taking of the vehicle with intent to permanently deprive (i.e., theft) cannot also be convicted of receiving the vehicle. (Garza, supra, at p. 871.) On the other hand, a defendant convicted of section 10851(a) posttheft driving can also sustain a receiving conviction. (Garza, at p. 871.)
Garza explained that the taking of the vehicle includes accomplishment of the theft by driving the vehicle away, whereas posttheft driving arises when the driving occurs or continues after the theft is complete. (Garza, supra, 35 Cal.4th at p. 871.) That is, the theft is complete and posttheft driving occurs when the driving is no longer part of a " ' "continuous journey away from the locus of the theft, " ' " or "when the taker reaches a place of temporary safety." (Id. at p. 880, italics omitted.) The court also noted that "a defendant who steals a vehicle and then continues to drive it after the theft is complete commits separate and distinct violations of section 10851(a)." (Ibid.) Accordingly, "once a person who has stolen a car has passed that point [when the initial theft offense is no longer in progress], further driving of the vehicle is a separate violation of section 10851(a) that is properly regarded as a nontheft offense for purposes of the dual conviction prohibition of section 496(a)." (Id. at p. 881.)
In Garza, the evidence supported the section 10851(a) conviction on either a taking or posttheft driving theory; the prosecutor argued both theories to the jury; the jury was not instructed to choose between the theories and was not told about the dual conviction prohibition for stealing and receiving the same stolen property; and the guilty verdict did not disclose which theory or theories the jurors accepted. (Garza, supra, 35 Cal.4th at p. 871.) Under circumstances where the evidence could support both the theft and nontheft forms of the section 10851(a) offense, Garza concluded the trial court erred in not instructing the jury that it could not convict both for theft and receiving the same stolen property. (Garza, supra, at pp. 876, 881.) The court stated the crucial issue was whether the jury's section 10851(a) conviction was for the taking of the vehicle so as to bar the receiving conviction, or whether it was for posttheft driving so as to permit the receiving conviction. (Garza, supra, at p. 881.) To make this determination in a case where the trial court failed to properly instruct the jury, the court applied the principle that on appeal a judgment is presumed correct, and evaluated "whether it [was] reasonably probable that a properly instructed jury would have a reached a result more favorable to defendant by not convicting him of violating both section 10851(a) and section 496(a)." (Id. at pp. 881-882.)
Turning to the facts before it, Garza noted the defendant was found in the car under circumstances showing he had driven it six days after the theft, and because the "theft of the vehicle six days earlier was long since complete, the driving therefore constituted a separate, distinct, and complete violation of section 10851(a)." (Garza, supra, 35 Cal.4th at p. 882.) The court concluded that under these circumstances, it was "not reasonably probable that a properly instructed jury would have found defendant guilty of violating section 10851(a) by stealing the car but not by posttheft driving." (Ibid.) Accordingly, the court "constru[ed] defendant's conviction under section 10851(a) as a nontheft conviction for posttheft driving" so as to permit the receiving conviction. (Id. at p. 882.)
Citing People v. Jaramillo (1976) 16 Cal.3d 752, Figueroa contends the test for reversible error is not whether it is reasonably probable a properly instructed jury would have rejected the nontheft form of the section 10851(a) offense, but rather whether the record supports that the jury may have found the defendant committed the theft form of the offense. The contention is unavailing. The Garza court noted the approach used in Jaramillo, but declined to adopt it. (Garza, supra, 35 Cal.4th at pp. 876-877, 882.)
Here, similar to the circumstances in Garza, the jury was instructed that the section 10851(a) offense could be committed by either taking or driving the car, and the prosecution argued to the jury that it could find defendant guilty of the offense based on Figueroa's act of stealing the car or his act of driving the vehicle after someone else stole it. The jury was not instructed that it could not convict him of both section 10851(a) theft and section 496d receiving. Accordingly, under Garza, the question before us is whether it is reasonably probable that a properly instructed jury would have found Figueroa did not engage in any posttheft driving. If it is not reasonably probable that the jury would have rejected a finding of posttheft driving, we apply the presumption in favor of the correctness of the judgment and construe the section 10851(a) conviction as a posttheft driving conviction. (See Garza, supra, 35 Cal.4th at pp. 881-882.)
Figueroa argues that because the theft and the crash of the vehicle were only a few hours apart and in relatively close geographic proximity, it is not reasonably probable the jury would have found his conduct involved posttheft driving rather than merely a continuous course of conduct associated with the theft. We disagree. The facts show that by the time Figueroa was driving the car, the car had already been stripped of its stereo, subwoofer and amplifier, and the boat engine heads stored in the back seat had been removed. These are not the type of items that could be removed from the car as the thief was in the process of driving away from the victim's residence. Further, given the significant number of items removed from the car and the heightened risk of detection in front of Pani's residence, there was a high likelihood that removal of the items was accomplished at a locale distinct from the place of the theft. These facts create a strong inference that the person who took the car had reached a place of temporary safety when the items were removed. This supports that at the time Figueroa was driving the car with the missing components, the theft was complete and he was engaging in the distinct offense of posttheft driving.
The theft and the crash apparently occurred only a few miles apart.
Under circumstances showing strong evidence of posttheft driving, it is not reasonably probable that a properly instructed jury would have rejected the nontheft form of the section 10851(a) offense. Accordingly, applying the presumption that the judgment is correct, we construe the section 10851(a) conviction as based on posttheft driving, which permits the receiving conviction. As stated in Garza, the Attorney General's defense of Figueroa's section 496d receiving a stolen vehicle conviction constitutes an abandonment of any claim that his section 10851(a) conviction is a theft conviction for purposes of any future proceedings. (Garza, supra, 35 Cal.4th at p. 882, fn. 3.)
II. Failure to Instruct on the Defense of Excessive Force
Figueroa argues the trial court erred in failing to instruct the jury that he was not guilty of the offense of resisting an officer if he resisted in response to the officer's use of excessive force.
An officer who uses excessive force is not lawfully performing his or her duties; hence, a defendant who resists the officer's excessive force is not guilty of the offense of resisting an officer in the lawful performance of duties. (People v. Olguin (1981) 119 Cal.App.3d 39, 44-46.) Using the language of CALCRIM No. 2656, the trial court instructed the jury on the offense of resisting an officer in the lawful performance of duties. This instruction informed the jury that the prosecution must prove that the officers were lawfully performing their duties. However, the trial court did not instruct the jury on the defense of excessive force, apparently concluding that the evidence did not support a theory that Figueroa resisted in response to excessive force. Reflective of this, the trial court omitted the portion of CALCRIM No. 2656 which informs the jury that an officer is not lawfully performing his duties if he is using unreasonable or excessive force. Further, the court did not instruct the jury with CALCRIM No. 2670, which elaborates on the concept of excessive force; i.e., stating that the prosecution has the burden to prove the officer was lawfully performing his duties and setting forth the principles governing use of force by an officer and the defense of excessive force.
The jury was instructed in relevant part: "[T]he People must prove that, one, Lawrence Cahill and Steve Sdringola were peace officers lawfully performing or attempting to perform their duties as peace officers; two, the defendant willfully resisted or obstructed or delayed either or both in the performance or attempted performance of those duties; and, three, when the defendant acted, he knew or reasonably should have known that they were peace officers performing or attempting to perform their duties."
During trial the court and parties discussed instructing the jury on the issue of excessive force, and the court decided to wait until all the evidence was received before deciding whether the instruction was warranted. Thereafter, the court apparently concluded the instruction should not be given.
The omitted portion of CALCRIM No. 2656 states: "A peace officer is not lawfully performing his or her duties if he or she is... using unreasonable or excessive force in his or her duties.... Instruction 2670 explains... when force is unreasonable or excessive...."
CALCRIM No. 2670 states in relevant part: "The People have the burden of proving beyond a reasonable doubt that [the officer] was lawfully performing [his] duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of [resisting an officer]. [¶] A peace officer is not lawfully performing his or her duties if he or she is... using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.... [¶]... [¶] Special rules control the use of force. [¶] A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense. [¶]... [Y]ou may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the officer was arresting him...."
Figueroa argues the court's omission of the excessive force concept from CALCRIM No. 2656, and its failure to give CALCRIM No. 2670, was error because there was sufficient evidence for the jury to find the officers used excessive force.
A trial court has a sua sponte duty to instruct on general principles of law that are closely and openly connected to the facts and necessary to the jury's understanding of the case. (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) In some circumstances the duty to instruct extends to "recognized 'defenses... and on the relationship of these defenses to the elements of the charged offense.' " (People v. Rubalcava (2000) 23 Cal.4th 322, 334; see People v. Anderson (2011) 51 Cal.4th 989.) When the sua sponte duty to instruct applies to a particular defense, the court is required to instruct on the defense if it appears the defendant is relying on it, or if it is supported by substantial evidence and it is not inconsistent with the defendant's theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424; People v. Barton (1995) 12 Cal.4th 186, 195.)
In Anderson, the California Supreme Court clarified that there is no sua sponte duty to instruct on a defense that negates or rebuts an element of the offense, as long as the jury "received complete and accurate instructions" on the element. (People v. Anderson, supra, 51 Cal.4th at pp. 992, 998 [no sua sponte duty to instruct on accident defense; accident theory merely pinpoints defense theory of the case]; People v. Jennings (2010) 50 Cal.4th 616, 674-675 [same].) In contrast, the sua sponte duty to instruct on a defense may arise if an explanation of the defense is necessary for the jury's full understanding of the elements. (See People v. Rubalcava, supra, 23 Cal.4th at p. 334; see, e.g., People v. Dominguez (2006) 39 Cal.4th 1141, 1147-1148; People v. Salas (2006) 37 Cal.4th 967, 982-983; People v. Villanueva (2008) 169 Cal.App.4th 41, 49.)
When warranted by the evidence, excessive force by an officer has long been recognized as a defense that should be submitted to the jury for purposes of determining the element of lawful performance of duties. (See People v. Olguin, supra, 119 Cal.App.3d at p. 46; People v. White (1980) 101 Cal.App.3d 161, 164, 167; see also People v. Jenkins (2000) 22 Cal.4th 900, 1020; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) Thus, the trial court has a sua sponte duty to ensure that the jury is instructed on the excessive force defense if the defendant is relying on it, or when there is substantial evidence to support it and it is not inconsistent with the defense theory. (People v. Olguin, supra, 119 Cal.App.3d at p. 46.) Substantial evidence is evidence sufficient for a reasonable jury to find in favor of the defendant. (People v. Salas, supra, 37 Cal.4th at p. 982.) The trial court does not determine the credibility of the evidence, but only whether there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt of guilt. (Ibid.)
Here, according to Figueroa's version of the facts, he became upset when the police accused him of being involved in a hit-and-run, and he raised his voice because he was being falsely accused. When the officers put him in the police car, he asked them to roll down the windows because of his claustrophobia, and when they ignored him, he started kicking the door with a mild amount of force. The officers then pulled him out of the car and tied him up by his feet, and he may have bumped his head on the concrete as he was being dragged out of the car. Notably, Figueroa did not claim that he resisted the officers because they used excessive force. His version of the facts indicates that any resistance he raised was because the officers were falsely accusing him and because they did not open the car windows. Thus, the record does not show that Figueroa was relying on a theory of resistance to excessive force.
Figueroa's counsel did not raise a claim of excessive force in closing arguments to the jury. On appeal Figueroa asserts that excessive force was used because the officers "handcuffed [him] without any explanation" and then placed him "into the patrol car without any air." Mere handcuffing and closed car windows do not show excessive force.
Moreover, the record does not show evidence sufficient to require the trial court on its own to glean the existence of an excessive force defense. Arguably, a theory of excessive force could be extracted from defendant's claim that he did not forcefully kick the car door, and an inference that the officers overreacted to his behavior by subjecting him to a maximum restraint procedure, followed by his attempts to free himself from this restraint. However, a trial court is "under no obligation to sift through the evidence to identify an issue that conceivably could have been, but was not, raised by the parties, and to instruct the jury sua sponte, on that issue.... '[When a theory is] so far under the surface of the facts and theories apparently involved as to remain hidden from even the defendant until the case reached this court on appeal[, ]... [t]he trial court need not... have recognized it and instructed the jury in accordance with it. Omniscience is not required of our trial courts.' " (People v. Montoya, supra, 7 Cal.4th at p. 1050.) Indeed, the record implicitly suggests that the court and the parties agreed there was no evidence of excessive force, as suggested by the trial court's deferral of the issue until the receipt of all evidence, and the subsequent failure to give the instruction with no further discussion on the record.
Alternatively, even assuming arguendo the trial court should have instructed on excessive force, the error was harmless even under the more stringent harmless beyond a reasonable doubt standard. (See People v. Salas, supra, 37 Cal.4th at p. 984; People v. Demetrulias (2006) 39 Cal.4th 1, 23.) An error is harmless beyond a reasonable doubt if there is no reasonable possibility that the error contributed to the conviction. (People v. Archer (2000) 82 Cal.App.4th 1380, 1394.) As stated, Figueroa never claimed that he was resisting in response to excessive force. Figueroa conceded that he was drunk, that he raised his voice and was upset because he was being arrested, and that he kicked the car door because of the closed car windows. The officers' description of Figueroa's conduct reflected that he was out of control; i.e., yelling and screaming, banging his head in the car, forcefully kicking the car door, and banging his head on the concrete. Figueroa's own admissions and description of the incident, combined with the officers' description of his behavior, create a compelling inference that he was lashing out at being arrested and being placed in the patrol car with closed windows, and that for his own safety and the protection of the police vehicle he needed to be subjected to the maximum restraint imposed by the officers. Given the strength of the evidence that Figueroa was not resisting excessive force but rather was protesting his arrest in a manner that required the officers to forcefully restrain him, there is no reasonable possibility the jury's guilty verdict was influenced by the absence of instructions concerning the defense of excessive force.
There was no prejudice from any instructional error.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., NARES, J.