Opinion
B159394.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. BRIAN PATRICK GARRETT, Defendant and Appellant.
William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Linda C. Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Brian Patrick Garrett was convicted by a jury of battery with injury on a peace officer in violation of Penal Code section 243, subdivision (c)(2). He appeals from judgment suspending sentence and granting him probation, contending the judgment must be reversed because the court did not instruct the jury that misdemeanor resisting arrest was a lesser included crime of the charged crime. Respondent concedes the error, but asserts it was not prejudicial. For reasons explained in this opinion, we affirm the judgment.
FACTUAL SUMMARY
The prosecutions evidence, stated in the light most favorable to the judgment, proved that on July 27, 2001, Santa Monica Police Officer Jason Bendinelli was dispatched to detain appellant for an investigation of his mental status after a citizen reported that appellant was behaving violently and throwing equipment from a construction truck.
Officer Bendinelli approached appellant in a marked police car and asked to speak with him. Appellant replied, "fuck you," and walked away. Officer Bendinelli got out of his car and ordered appellant, in a stern voice, to "come here [and] let me speak with you." Appellant turned quickly and walked at a fast pace toward the officer with his hands in a fighting stance. Believing appellant was about to attack him, Officer Bendinelli stood aside, grabbed appellants right wrist and shoulder and attempted to bring him to the ground. Appellant turned so he was on his back, sitting up slightly, and punched the officer in the chest several times. A struggle ensued during which Officer Bendinelli fell to the ground on his back. The officer testified appellant stood over him and punched him twice in the nose. Officer Bendinelli managed to get to his feet and struck appellant with his baton approximately four times. Appellant grabbed the baton, attempting to wrestle it from the officers control. Then appellant let go of the baton and ran to a nearby alcove where he was ultimately subdued by five or six police officers, using mace and a "hobble restraint[.]"
Officer Bendinelli suffered superficial facial abrasions, swelling and bruises and a non-displaced nasal fracture, causing him to miss one week of work.
Appellant, who represented himself, testified in narrative form that he was walking down the street at approximately 6:00 a.m., upset by and talking to himself about problems he was having. In frustration, he knocked down a construction sign. A man approached him and sprayed mace in his face. Appellant spat at the man and followed him to a restaurant. There, appellant spat on the window and yelled at the man. Believing the man was the owner of a truck parked in front of the restaurant, appellant threw some tools and a gas can from the bed of the truck to the ground. As appellant walked away, some construction workers approached him, telling him they owned the truck and demanding that he return to pick up the items he threw out of it. Appellant explained his mistake about ownership of the vehicle, but kept walking.
Appellant saw Officer Bendinelli approaching and saw the construction workers pointing at him. Appellant testified that although he complied with the officers orders to "come here" and "get down," the officer threw him to the ground. While appellant was lying with his face to the ground, the officer tripped and fell on the curb. Appellant stood up, and the officer stepped in front of appellant and began swinging his baton. Appellant testified that he put his arm up to block the swings and grabbed hold of the baton in self-defense. Appellant explained that he was "trying to subdue [the officer] . . . because he had done me wrong in every view I had." After a struggle for the baton, appellant released it and ran away. Appellant claimed he did so to "protect or defend himself from getting further undue force." Appellant testified: "As far as hitting him, I think he got hit when I released the baton during the challenge for the baton. I did not at all hit him with my closed fist while he was down on the ground, period." On cross-examination appellant admitted having told another police officer "something to the effect" that he hit Officer Bendinelli under the nose "with a left" and that if he had "hit him with the right, he would have been down."
The jury found appellant guilty of battery with injury on a police officer, but found "not true" the allegation that appellant personally inflicted great bodily injury upon Officer Bendinelli.
DISCUSSION
I
The trial court instructed the jury on the elements of misdemeanor resisting arrest. It did not, however, instruct the jury that the crime was a lesser and necessarily included crime of battery on a peace officer, nor did it give the jury the option of finding appellant guilty of the lesser crime. When appellant, who represented himself, questioned the courts intention to instruct on resisting arrest, the court explained that the instruction would be given "because the officer indicated the reason that he was going to arrest you was after you punched him in the face." Appellant asked, "Since there is no charge at all . . . ." The court stated: "No. There is no charge of that, but that is the reason that the officer gave for his pursuing you and placing you under arrest was the fact that you had resisted and obstructed him in attempting to perform his duties. As youll see, it doesnt state that you were charged with this crime. It just defines it." The court also stated it was not going to instruct the jury on any lesser-included offenses, explaining to appellant that "if the jury finds you guilty at all you can only be guilty of the greater offense, that being the offense that is charged in this matter." The court explained: "The only reason to give a lesser would be if there was some question about whether or not an injury was inflicted, and I think clearly the evidence supports that. [P] There is no question about that. The bottom line in this situation is the officer says that you punched him in the face, punched him in the nose, and you said you didnt. Therefore, I dont find any evidence that the charge was less than what was charged should the jury find you guilty. Thats why Im not giving any lessers."
Appellant contends this was error. Respondent concedes that misdemeanor resisting arrest is a lesser and necessarily included offense of battery upon a peace officer. Respondent also concedes that the trial court should have instructed the jury, sua sponte, on this point. Respondent nonetheless argues the error was harmless since it is not reasonably probable appellant would have obtained a more favorable outcome in the absence of this instructional error.
Appellant counters that since the jury specifically found he did not inflict great bodily injury on the officer, the record "suggests that the jury had doubts as to the degree of force used by appellant and might have convicted him of misdemeanor resisting arrest had it not been presented with the unwarranted all-or-nothing choice between conviction of the felony and complete acquittal on the charge."
The California Supreme Court has held that we must assess the effect of the failure to instruct on a lesser but necessarily included crime by making "an individualized, concrete examination of the record" (People v. Breverman (1998) 19 Cal.4th 142, 176, 960 P.2d 1094) to determine, under the Watson (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243 ) standard whether it is reasonably probable appellant would have obtained a more favorable outcome had the error not occurred. (Breverman, supra, 19 Cal.4th at p. 178.) Applying that standard, we note, as the trial court pointed out, that appellant specifically denied resisting the arrest "even [one] little bit." On the other hand, witnesses and Officer Bendinelli testified appellant was resisting arrest, and the prosecutor argued to the jury that appellant was "engaged in resisting, delaying, and obstructing Officer Bendinelli[.]" In fact, the prosecutor argued to the jury that "by twisting around and punching Officer Bendinelli in the chest the defendant was committing the misdemeanor of resisting arrest[.]" But it seems unlikely that the jury would have found appellant not guilty of battery on a peace officer if it had had the option of finding him guilty of misdemeanor resisting arrest. Appellant, himself, admitted that he was trying to subdue the officer and bragged that he had hit him under the nose "with a left."
Under these circumstances we conclude it is not reasonably probable that appellant would have obtained a more favorable outcome in the absence of the error.
DISPOSITION
For the foregoing reasons, the judgment is affirmed.
We concur: VOGEL (C.S.), P.J., and HASTINGS, J.