Opinion
A159497
04-26-2021
THE PEOPLE, Plaintiff and Respondent, v. TYLER GRESS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (City & County of San Francisco Super. Ct. No. SCN230972)
Appellant Tyler Gress was tried before a jury and convicted of multiple counts after knocking a police officer unconscious while being contacted for suspected shoplifting. He appeals the judgment sentencing him to eight years in prison, arguing (1) the trial court should have restored his peremptory challenges after improperly restricting voir dire on the subject of his prior convictions; and (2) two of the counts should have been reversed as lesser included offenses, and not merely stayed under Penal Code section 654. We modify the sentence but otherwise affirm.
Further statutory references are to the Penal Code.
I. BACKGROUND
Sergeant Alexander Kwan of the San Francisco Police Department (SFPD) was assigned to the Ross Dress for Less store on Market Street and Fourth Street in San Francisco under the auspices of the "10-B" program, which allows private entities to contract with the SFPD to receive law enforcement services. Sergeant Kwan wore his SFPD uniform, which included patches on both shoulders and a star on the left side.
On February 28, 2019, appellant entered the Ross store and was recognized as a "familiar" who had a history of "either suspected shoplifting in [the] building or confirmed shoplifting in [the] building." As he left the store, a loss prevention employee said, "[h]ave a good day" and appellant returned the greeting. An alarm sounded that indicated he was leaving with merchandise with unremoved theft prevention tags.
Sergeant Kwan followed appellant outside and asked him to return to the store using a "soft" demeanor. Appellant denied stealing anything and refused. Sergeant Kwan told appellant he was a police officer and said, "Help me help you. Ross probably won't even press charges." He put his hands up in front of his chest to gesture to appellant to stop walking away and told appellant to stop.
Appellant punched Sergeant Kwan, who lost consciousness and was assisted back inside the store and taken to the hospital. Sergeant Kwan did not work for about a week and experienced pain in his jaw, chest and leg as well as memory loss about the event.
Appellant was arrested a few blocks away. He told an officer, "Fucker tried to grab me so I knocked him out." In a call recorded while he was in jail he told his girlfriend "to let people know that her boyfriend punches cops."
An information was filed charging appellant with resisting an executive officer by threats and violence (§ 69, count one), resisting a peace officer causing serious bodily injury (§ 148.10, subd. (a), count two), battery with injury on a peace officer (§ 243, subd. (c)(2), count three) assault on a peace officer with force likely to cause great bodily injury (§245, subd. (c), count four), and resisting a peace officer (§148, subd. (a)(1), count five), along with a great bodily injury allegation (§ 12022.7, subd. (a)). He was tried before a jury.
Two prison prior enhancement allegations were also alleged under former section 667.5, subdivision (b). These allegations were bifurcated for trial, but were never resolved. The trial court characterized them as "moot" in light of a recent amendment to section 667.5, subdivision (b), which occurred after the trial in this case and which made the enhancement inapplicable to appellant's case. (Senate Bill 136, 2019-2020 Reg. Sess.)
Appellant testified to drinking alcohol and doing methamphetamine on the day of the offense before going into Ross to use the bathroom. Sergeant Kwan followed him out of Ross and accused him of stealing, but appellant did not know he was a police officer. Appellant thought Sergeant Kwan was the Ross employee who had told him to have a good day. Appellant initially claimed Sergeant Kwan hit him first, but when reviewing a videotape of the incident he acknowledged he "managed to get" to Sergeant Kwan "before he got to me." Appellant remembered punching Sergeant Kwan. He acknowledged having two prior felony convictions.
Appellant was convicted as charged. The court sentenced him to the five-year upper term on the assault count plus three years on the enhancement for great bodily injury, and stayed the sentences on the remaining counts under section 654. The sentence was recalled under section 1170, subdivision (d), but the court imposed the same sentence at the second sentencing hearing.
II. DISCUSSION
A. Voir Dire
Appellant had two prior felony convictions at the time of the incident leading to the charges in this case. He argues the trial court improperly restricted the scope of voir dire because it did not allow defense counsel to ask the jurors how they felt about these prior convictions, which would be admissible to impeach appellant if he testified. Ultimately, the court did allow voir dire on the subject but declined to grant appellant's request that it remedy the former restriction by restoring the number of preemptory challenges used by the defense. We disagree this was prejudicial error.
1. Procedural History
During defense counsel's voir dire of the prospective jurors, he inquired, "Since we're on that subject, if [appellant] testifies, this is always a hard thing to talk about. If [appellant] testifies, then you get to learn a lot more about. . . ." The prosecution objected on the grounds that counsel was "pre-trying" the case, and this objection was overruled. Defense counsel continued, "So you might get to hear about [appellant]'s criminal history. My question to juror number—let's say Juror No. 9, if you learned that [appellant] pled guilty to—before to a crime, do you think that means he must be guilty in this case?" The prosecution again objected that defense counsel was "pre-trying" the case, and the court sustained the objection. Following voir dire on other topics, defense counsel used seven of his ten peremptory challenges.
Appellant filed a written motion seeking to "re-open" voir dire and have his peremptory challenges returned to him, or in the alterative to exclude all evidence of prior convictions. The trial court granted appellant's request to question the prospective jurors about prior convictions, noting that defense counsel had, for the first time, been clear that he would call appellant to testify and thus would subject his client to impeachment with his prior convictions. It denied the request for additional peremptory challenges. The district attorney stated that he had only objected to "pre-trying" the case by stating that appellant had prior convictions, and he did not object to questions about prior convictions in general.
Defense counsel proceeded to tell the jury panel that it might hear his client had criminal convictions, and asked whether they would think that meant a person was guilty of all future crimes with which he was accused. No one indicated they would think that because a defendant had prior convictions, he must have committed the crimes he was accused of committing. Several jurors stated that they knew someone with a criminal record. Appellant ultimately exercised all of his peremptory challenges.
2. Analysis
Appellant contends the trial court improperly restricted his right to voir dire and violated his right to a fair and impartial jury under the Sixth Amendment. We assume the trial court abused its discretion by initially sustaining an objection to defense counsel's question about prior convictions. (People v. Chapman (1993) 15 Cal.App.4th 136, 141 (Chapman) [barring of voir dire on subject of defendant's prior convictions violated defendant's right to an impartial jury].) But we disagree that appellant can show any prejudice.
At root, appellant's argument is that the court erroneously required him to use his peremptory challenges to excuse jurors he could not adequately question, and then refused to restore those peremptory challenges once it had reversed this ruling. The right to exercise peremptory challenges is governed by state law and does not affect a defendant's federal constitutional rights. (Rivera v. Illinois (2009) 556 U.S. 148, 152 [court's erroneous overruling of defendant's peremptory challenge not a federal constitutional issue where defendant tried before an impartial jury].) "So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the Sixth Amendment was violated." (Ross v. Oklahoma (1988) 487 U.S. 81, 88 [denial of challenge for cause, which required defense counsel to use peremptory challenge, did not violate constitutional right to a fair jury]; see also People v. Edwards (2013) 57 Cal.4th 658, 753 [denial of defense challenge for cause did not violate Sixth Amendment, even if erroneous, where defendant did not argue that any sitting juror was biased].)
Appellant argues that the court committed structural error that requires reversal without respect to harmless-error analysis. We disagree. In the absence of federal constitutional error, "states retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal." (Rivera, supra, 556 U.S. at pp. 161-162.) Under California law " "[a]n erroneous ruling that forces a defendant to use a peremptory challenge, and thus leaves him unable to exclude a juror who actually sits on his case, provides grounds for reversal only if the defendant 'can actually show that his right to an impartial jury was affected.' " (People v. Black (2014) 58 Cal.4th 912, 918-919, citing People v. Yeoman (2003) 31 Cal.4th 93, 114.) "[I]t is not enough for an appellant to identify an error in the proceedings in the trial court without affirmatively establishing 'how the error caused a miscarriage of justice.' [Citations.] Mere speculations of prejudice are insufficient to carry this burden." (People v. Singh (2015) 234 Cal.App.4th 1319, 1330-1331 [claim that erroneous ruling denying peremptory challenge inhibited defense from making additional challenges rejected where there was no showing that jury which tried appellant was biased.)
There is no indication that the jury that sat on this case was incompetent or biased. By the time they were seated on the jury, defense counsel had questioned the jurors about their views regarding prior convictions. Counsel had received no responses indicating any juror would consider prior convictions sufficient to prove guilt. Appellant has not carried his burden of establishing prejudice.
Appellant relies on People v. Bonin (1988) 46 Cal.3d 659, 679 (Bonin), in which the court considered a claim that additional peremptory challenges should have been granted due to pretrial publicity. We are not persuaded. The Bonin court rejected the claim because the defendant had not shown he was likely to receive an unfair trial before a "partial" jury without additional challenges. (Ibid.) Bonin does not support appellant's argument.
Nor is this a case like Chapman, supra, 15 Cal.App.4th at page 141, in which the appellate court reversed a conviction for being a felon in possession of a firearm and brandishing because the trial court had completely precluded voir dire on the subject of the defendant's prior convictions. The trial court had obtained a stipulation regarding prior conviction status from the defendant, but before voir dire was completed, it indicated the stipulation would mean only that the jury would not learn the nature of the prior conviction, whereas defense counsel had understood the prior conviction would be completely precluded. (Id. at pp. 139-140.) The court denied defense counsel's motion for mistrial and a request to ask questions on the subject of prior convictions, and instructed the jury that with respect to the charge of being a felon in possession of a firearm, appellant had stipulated to a prior felony conviction and no further proof of that fact was required. (Id. at p. 140.)
The defendant in Chapman never had the opportunity to question prospective jurors on the subject of the defendant's prior convictions. (Chapman, supra, 15 Cal.App.4th 140.) In this case, the panel ultimately was questioned about appellant's prior convictions and no juror gave any indication of bias in that regard. Chapman addressed a restriction on voir dire that was never corrected; it did not involve a claim that the court should have allowed the defense more peremptory challenges as a remedy for an initial restriction on voir dire that was ultimately corrected by the court before the jury panel was sworn.
B. Lesser Included Offenses
The trial court sentenced appellant on the assault on a peace officer count under section 245, subdivision (c) and stayed the sentences on the other counts pursuant to section 654. Relying on the rule that a defendant may not be convicted of both a greater and a lesser necessarily included offense (People v. Sanders (2012) 55 Cal.4th 731, 736), appellant argues that count three (battery with injury on a peace officer under section 243, subdivision (c)(2)) is a lesser included offense of count two (resisting a peace officer causing great bodily injury under section 148.10) and that count five (misdemeanor resisting arrest under section 148) is a lesser included offense of both counts two and three.
The People agree that count five (resisting arrest under section 148) is a lesser included offense of count two (resisting a peace officer causing serious bodily injury under section 148.10), even though they disagree that it is also a necessarily included offense of count three (battery with injury on a peace officer under section 243, subd. (c)(2)). We accept the concession and will order count five reversed.
We next turn to the question of whether battery with injury on a peace officer under section 243, subdivision (c)(2) as charged in count three was a lesser included offense of resisting a peace officer causing serious bodily under section 148.10 as charged in count two. The People argue it is not, because battery on a peace officer requires a battery, i.e., a willful and unlawful touching, and it is possible to resist an officer under section 148.10 without committing a battery. (People v. Francis A. (2019) 40 Cal.App.5th 399, 402, 405-406 [unintended touching of peace officer while trying to evade his touch was not a battery but was resisting a peace officer under section 148].) In determining whether the conviction of battery may stand against a challenge that it is a lesser included offense of resisting a peace officer, we apply the "elements" test, which asks whether the statutory elements of the greater offense include all of the statutory elements of the lesser offense. (People v. Reed (2006) 38 Cal.4th 1224, 1227.)
We agree with the People that resisting a peace officer under section 148.10 does not contain all of the elements of a battery with injury on a peace officer because the former offense does not require an unlawful touching. For example, in People v. Superior Court (Ferguson) (2005) 132 Cal.App.4th 1525, 1528-1530, the defendant was properly held to answer on charges of violating section 148.10 based on his flight on foot from two sheriff's deputies, who were injured during the pursuit. There was no evidence of a battery of any sort. Thus, resisting arrest under section 148.10 does not inevitably involve a battery.
Although he has not directly argued the point, we have also considered the converse argument: whether resisting a peace officer under section 148.10 is a lesser included offense of battery of a peace officer under section 243, subdivision (c)(2). It is not. A violation of section 243, subdivision (c)(2), which incorporates subdivision (c)(1), requires that "an injury is inflicted." Section 148.10, by contrast, requires the infliction of serious bodily injury. Although the act of battery against a peace officer constitutes resisting that peace officer (People v. Perkins (1970) 9 Cal.App.3d 1048, 1051), infliction of an injury within the meaning of section 243, subdivision (c)(2) does not necessarily constitute the infliction of serious bodily injury, and the elements of battery do not inevitably include the elements of resisting.
"Serious bodily injury" is defined by section 148.10, subdivision (d), to be consistent with the definition given to that term in section 243, subdivision (f)(4), and means "a serious impairment of physical condition, including, but not limited to, the following: loss of consciousness; concussion; bone fracture; protracted loss or impairment of function of any bodily member or organ; a wound requiring extensive suturing; and serious disfigurement."
III. DISPOSITION
The Count 5, misdemeanor resisting a peace officer, is reversed. As so modified, the judgment is affirmed.
/s/_________
NEEDHAM, J. We concur. /s/_________
SIMONS, Acting P. J. /s/_________
BURNS, J.