Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA072455, Richard Romero, Judge.
Michael John Shultz, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Jason C. Tran and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Moses Michael Grageda appeals the judgment entered following his conviction by jury of three counts of resisting an executive officer and one count of possession of a controlled substance. (Pen. Code, § 69; Health & Safety Code, § 11377.) The trial court found Grageda had a prior prison term within the meaning of section 667.5, subdivision (b) and sentenced him to a prison term of five years.
Subsequent unspecified statutory references are to the Penal Code.
We conclude that, on the facts presented, Grageda was entitled to instruction on the lesser included offense of resisting a peace officer in violation of section 148, subdivision (a)(1). (People v. Lacefield (2007) 157 Cal.App.4th 249, 259.) Consequently, we reverse the convictions of resisting an executive officer by force or violence and remand with directions to reduce these convictions to violations of section 148, subdivision (a)(1), and to resentence Grageda accordingly, unless the People elect to retry Grageda on the greater offense.
FACTS
1. The People’s evidence.
In the early morning hours of November 21, 2006, Los Angeles Police Sergeant Danny Contreras responded to a report of a prowler on Third Street in San Pedro. After Contreras spoke with the resident, a citizen approached Contreras on the street and indicated someone matching the description of the prowler was attempting to break into vehicles on Second Street. Contreras saw Grageda walking on Second Street and radioed for assistance.
When Contreras called to Grageda, he began to walk up a long flight of stairs on Second Street that leads to an apartment patio. “The houses on [Second] Street are elevated quite high above the street. They are about 30 feet above the street. There’s a sheer concrete wall with a set of [37] steps going up, and . . . there is a chainlink fence [at the top surrounding the patio] to keep someone from falling over in[to] the street.” Contreras asked Grageda if he lived at the location and Grageda said he did.
Los Angeles Police Officers Lawrence Meyerowitz and Patricia Suarez arrived to assist Contreras. Suarez ordered Grageda to show his hands. When he refused to comply, Conteras and Meyerowitz proceeded to the top of the steps where Grageda was attempting to open the door to an apartment. Grageda refused to comply with orders to put his hands behind his head. He dropped a jacket and refused to turn around. Contreras and Meyerowitz each grabbed one of Grageda’s arms. Grageda stiffened and refused to cooperate. Contreras was able to handcuff Grageda’s right wrist. Grageda then “really went off.” Grageda started to flail about and bounced off the chain link fence. Contreras testified Grageda “appeared to possess super human strength.” Contreras, Meyerowitz and Suarez struggled with Grageda on the patio for approximately seven minutes. At some point, all three officers and Grageda fell to the ground. Grageda called out to his mother and insisted that he lived at the residence.
During the struggle, Grageda grabbed the handle of Meyerowitz’s gun. Suarez tried to remove Grageda’s hand from the gun. Suarez twice punched Grageda with her fist in his back to try to get him to release his hand so they could complete the handcuffing. Suarez feared Grageda might have a weapon. Suarez testified Grageda was “very strong, stronger than anybody that I’ve ever had to be in [an] altercation with.” Also, Suarez feared someone would respond to Grageda’s calls for help. Meyerowitz put a carotid restraint hold on Grageda and pepper sprayed Grageda twice in the face. Meyerowitz also was surprised at Grageda’s strength. When Port of Los Angeles police officers arrived at the scene, they were able to subdue Grageda.
The struggle on the patio was witnessed by the resident of an apartment accessed by the patio and a neighbor who lived across the street. The resident was awakened by the sound of a man screaming “mom” outside her door. She saw “six or seven” police officers trying to subdue Grageda who was “flailing around, grabbing at people’s legs, and kicking.”
The neighbor from across the street heard a female voice screaming commands and saw two police officers and another individual “struggling” on the patio. The officers were “circling, moving around, and trying to get a hold of the suspect.” The neighbor noticed the suspect appeared to be “very strong.” He pushed a female officer forcing her to one knee. Eventually, there were “maybe six officers struggling with this one body trying to get him down. He wouldn’t go down. A lot of arms flying, elbows flying.”
A small digital scale fell from Grageda’s jacket during the struggle. Grageda’s jacket contained a key ring with approximately 50 house keys and ignition keys. Grageda also had an unloaded magazine for a .25 caliber automatic. In a vehicle parked near the scene, police officers found Grageda’s identification, a cellular telephone, a glass pipe and a pouch containing 8.12 grams of methamphetamine.
Contreras, Meyerowitz and Suarez each testified they feared falling from the patio. Meyerowitz testified he was afraid of “going over that chainlink fence.” Suarez testified that when she was “slammed against the fence the second time, I was able to look down and see the white port police vehicles below me.”
Contreras scraped his left knee and tore his pants. Meyerowitz suffered bruises on his elbow, his chin and his right knee, ripped his pants and had his radio holster damaged. Suarez was thrown against the fence twice and she was pepper sprayed. Suarez injured her back and neck and had bruising on her back in the pattern of the fence. She was off work for ten days and on light duty for two weeks.
2. Defense evidence.
Grageda testified his own defense. On the morning in question, he was walking on Second Street when Sergeant Contreras flashed a spotlight on him. Contreras asked if Grageda lived there and Grageda responded he did and began to walk up the steps. Contreras followed Grageda to the patio where Contreras and a second officer rushed him, twisted his arms behind his back and handcuffed one arm causing pain in his elbow. After the officer ordered Grageda to stop resisting, he was thrown to the floor. The officers did not give him an opportunity to comply with their request. They twisted his arms behind his back and seemed to be pushing all their weight on him. In an attempt to relieve the tension on his shoulders, Grageda moved. He felt several blows to the back but was uncertain how many officers were there because he was facing the ground. Grageda admitted he was flailing his arms “to relieve tension.” The officers placed Grageda in some sort of choke hold. Grageda felt like he was being jumped. One officer was twisting his arm and the other was punching him while he was being choked. Grageda conceded he was trying to get the officers off of him. When Grageda got near the police vehicle, he was knocked to the ground and one of the officers choked him.
Grageda admitted he had been on Third Street earlier that morning but claimed he needed a place to stay and was looking for a friend. Grageda told the officers he lived at the Second Street address because he thought they would keep going.
3. Jury verdicts.
The jury convicted Grageda of three counts of resisting an executive officer by force or violence in violation of section 69 and one count of possession of methamphetamine, as a lesser offense included within the charged offense of possession for sale.
DISCUSSION
1. The duty to instruct on lesser included offenses.
The law to be applied is well-settled. “California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense ‘necessarily included’ in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.” (People v. Birks (1998) 19 Cal.4th 108, 112.) The sua sponte duty to instruct is designed to protect not only a defendant’s “ ‘constitutional right to have the jury determine every material issue presented by the evidence’ ” but also “ ‘ “the broader interest of safeguarding the jury’s function of ascertaining the truth . . . .” ’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1215.) Error in failing to instruct on a lesser included offense is reviewed under the standard of People v. Watson (1956) 46 Cal.2d 818, 836. (People v. Breverman (1998) 19 Cal.4th 142, 177-178.)
2. Resisting arrest is a lesser offense included within resisting an executive officer by force or violence.
Section 69 provides: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by . . . imprisonment in the state prison, or in a county jail not exceeding one year . . . .”
As demonstrated by the words of the statute, section 69 can be violated in either of two ways: (1) attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; or (2) resisting an officer in the performance of his or her duty by force or violence. (See In re Manuel G. (1997) 16 Cal.4th 805, 814.) The prosecutor in this case conceded the People were not alleging a violation of the first form of violating section 69.
A misdemeanor violation of section 148, subdivision (a)(1) is a lesser offense included within the second manner in which section 69 may be violated. (People v. Lacefield, supra, 157 Cal.App.4th at p. 259.) Section 148, subdivision (a)(1) states, in pertinent part: “(a)(1) 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, when no other punishment is prescribed, shall be punished by a fine . . ., or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
The fundamental distinction between resisting an executive officer by force or violence in violation of section 69 and resisting a peace officer in violation of section 148, subdivision (a)(1), is the use of force or violence, which is necessary for the former but not the latter offense.
3. Grageda’s testimony triggered an obligation to instruct the jury on the lesser included offense of resisting arrest.
Grageda testified he did not violently resist the officers. Rather, he only resisted the officers’ use of excessive force to detain him and he moved only to relieve the tension caused by the officers twisting of his arm and choking him. Had the jury believed Grageda’s version of the incident, it reasonably could have found him guilty only of violating section 148, subdivision (a)(1). (People v. Breverman, supra, 19 Cal.4th at p. 154.) Because there was substantial evidence Grageda committed only the lesser offense, the trial court had a sua sponte obligation to instruct on the lesser offense. (People v. Prince (2007) 40 Cal.4th 1179, 1265; People v. Carter (2005) 36 Cal.4th 1114, 1184.)
4. Credibility determination not for the trial court.
The People argue that, even if error is found, it cannot be seen as prejudicial because examination of the entire case reveals Grageda would not have obtained a more favorable outcome absent the error. (People v. Breverman, supra, 19 Cal.4th at p. 178.) The People claim no reasonable juror could have concluded Grageda’s behavior was merely nonviolent resistance and thus only a violation of section 148, subdivision (a)(1). The People note the officers testified Grageda resisted them with violence and slammed them against the chain link fence numerous times in a seven minute struggle in which he demonstrated great strength and three officers were injured. The People point out the officers’ testimony was corroborated by the resident of the apartment at the top of the stairs and a neighbor from across the street. The People claim this evidence demonstrates that Grageda’s testimony constituted perjury.
However, in determining whether there is substantial evidence to warrant an instruction on a lesser included offense, “courts should not evaluate the credibility of witnesses, a task for the jury.” (Breverman, supra, 19 Cal.4th at p. 162; People v. Elize (1999) 71 Cal.App.4th 605, 615.) Rather, the evidence must be viewed in the light most favorable to the accused. (People v. Barnett (1998) 17 Cal.4th 1044, 1145.) Instruction is required “whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. Citations . ‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of reasonable persons could . . . conclude” ’ that the lesser offense, but not the greater was committed. Citations.” (Breverman, supra, at p. 162.)
Here, Grageda’s testimony presented a plausible version of the incident which, if believed by the jury, permitted a conviction of resisting arrest in violation of section 148, subdivision (a)(1).
5. Prejudice.
The failure to instruct on section 148, subdivision (a)(1), forced “an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other.” (People v. Birks, supra, 19 Cal.4th at p. 119.) Based on our evaluation of the entire record, we find it reasonably probable that Grageda would have obtained a more favorable outcome if there had been an instruction on section 148, subdivision (a)(1) as a lesser included offense. (Breverman, supra, 19 Cal.4th at p. 178; cf. People v. Carrasco (2008) 163 Cal.App.4th 978, 986 [“There was no contrary evidence disputing the officer’s description of the struggle on the floor.”].)
We note in this regard that the jury acquitted Grageda of possession for sale of methamphetamine and convicted him of the lesser included offense of simple possession. This result demonstrated the jury accepted Grageda’s testimony the methamphetamine was for his personal consumption and rejected the testimony of the People’s expert witness who opined Grageda possessed the drug with the intent to sell based on the presence of the scale and the amount of methamphetamine possessed. The expert indicated eight grams of crystal methamphetamine had a street value of $800.
Based on the foregoing, we conclude the convictions of forcibly resisting an executive officer in violation of section 69 must be reversed.
6. Conditional reversal.
“When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense. [Citation.]” (People v. Kelly (1992) 1 Cal.4th 495, 528.) We therefore conditionally reverse Grageda’s convictions of violating section 69. (People v. Edwards (1985) 39 Cal.3d 107, 118; People v. Woods (1992) 8 Cal.App.4th 1570, 1596.)
DISPOSITION
The convictions of violating section 69 are reversed with the following directions: If the People do not retry Grageda on these charges pursuant to section 1382, subdivision (a)(2), within 60 days after the remittitur is filed in the trial court, or, if the People file a written election not to retry Grageda, the trial court shall proceed as if the remittitur modified the judgment to reflect conviction of three counts of resisting arrest (§ 148, subd. (a)(1) and resentence Grageda accordingly.
In all other respects, the judgment is affirmed.
We concur: CROSKEY, J. KITCHING, J.