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People v. Grissom

Court of Appeals of California, Third Appellate District, Sacramento.
Nov 25, 2003
No. C042417 (Cal. Ct. App. Nov. 25, 2003)

Opinion

C042417.

11-25-2003

THE PEOPLE, Plaintiff and Respondent, v. DAMION EUGENE GRISSOM, Defendant and Appellant.


Defendant Damion Eugene Grissom appeals his conviction of attempting to deter or prevent by unlawful threats or violence, or resisting by unlawful force or violence, the performance by an executive officer of his official duty. We conclude the trial courts failure to give a unanimity instruction was prejudicial error, and therefore reverse.

PROCEDURAL HISTORY

This case began as two separate complaints, but both were consolidated in an amended information. The information charged defendant with two counts of battery by a confined person on a nonconfined person in October 1999 (Pen. Code, § 4501.5) (all undesignated section references are to the Penal Code); another count of battery by a confined person on a nonconfined person on April 9, 2002 (§ 4501.5); one count of attempting, by means of threat or violence, to deter an executive officer from performing his duty and resisting, by force or violence, such officer in the performance of his duty, a felony, on April 9, 2002 (§ 69); and one count of vandalism, a misdemeanor, also committed on April 9, 2002 (§ 594).

The amended information also alleged defendant was convicted in 1995 of armed robbery (§§ 211, 12022.5), a serious felony within the provisions of the "Three Strikes" law (§§ 1192.7, subd. (c); 667, subds. (b)-(i); 1170.12).

Following trial, the jury found defendant not guilty of committing the three alleged batteries, but it found him guilty on the remaining two counts under sections 69 and 594. The jury also determined the prior conviction allegation was true.

The trial court sentenced defendant to state prison for a term of four years. It imposed the middle term of two years on the felony count, doubled to four years, and imposed a concurrent term of six months in the county jail on the misdemeanor count.

FACTS

We recite only those facts pertaining to defendants conviction under section 69, the only count which defendant argues here.

On April 9, 2002, Garry Brooks, a transportation officer for the California Department of Corrections, was assigned to escort defendant to and from Department 4 of the Sacramento County Superior Court for an appearance. At that time, defendant, an inmate housed at California State Prison, Sacramento, had a leg chain attached to his ankles, and a chain around his waist to which his hands were handcuffed.

As the pair arrived at the courtroom, defendant refused to enter. Brooks informed the bailiff and also tried to persuade defendant to go in. Defendant still refused. The court assigned defendant another court date. Brooks relayed that information to defendant and told him they would go back downstairs. Defendant then said he was not going anywhere until he went into the courtroom. Brooks explained a new date had been set, but defendant continued to refuse to move.

Brooks told defendant if he did not move, Brooks would have to remove him. Defendant backed up against a wall. Brooks reached for defendants forearm, but defendant pulled away. Brooks told him not to do that, and again attempted to grab his forearm. Defendant tried to pull away, but Brooks grabbed defendants arm and his waist chain and forced him to the ground. Brookss partner, Officer Michael Verras, came to assist.

Once on the ground, defendant continued to flail his arms and legs and to resist. All the while, he was cursing and saying, "Get off me." And, "Oh, its on now." At one point, defendant threatened to break Brookss jaw.

Brooks asked defendant if he would stand up and walk. Defendant said, "No, you guys are going to have to carry me." Brooks and Verras lifted defendant up and carried him approximately 10 to 15 yards from the courtroom entrance to the hallway In the hallway, defendant said he would walk. The officers put him down so he could walk, but defendant adjusted his glasses, flopped back down, and said, "No, you guys carry me." The officers picked defendant back up and carried him another 20 to 25 yards to an elevator, which the trio rode down to the basement without event.

The officers carried defendant off the elevator and laid him down on the ground. Brooks went to inform his sergeant of the situation, but noticed defendant had begun struggling with Verras and another officer, Officer Celso Zamudio, who had been with the sergeant. Brooks returned, and the three officers struggled to keep defendant lying prone. Zamudio grabbed defendants leg momentarily, but defendant kicked Zamudio on the inside of his right knee. Zamudios right ankle buckled and he went down. Zamudio stood back up and stood on defendants ankles. Defendant ceased his aggressiveness at that point. Zamudios ankle, on which he had had surgery more than once, remained swollen for a couple of days. (One of the three battery counts was based on defendant kicking Zamudio. The jury acquitted defendant of this charge.)

The officers carried defendant to their car and placed him in a sitting position in the back seat. Verras stayed with defendant and talked with him while leaving the car door open. Verras then had to return upstairs to retrieve the prisoner he was originally assigned to escort.

At some point, the cars right rear door was closed. Defendant kicked out the doors window, causing it to break. Defendant attempted to kick the other sides rear window out, but an officer told defendant to stop or else he would use pepper spray. Defendant stopped kicking, and he was not sprayed with pepper spray. Officers ultimately transported defendant back to prison in another car.

Defense

Defendant testified he had previously been convicted of residential burglary.

On April 9, 2002, while waiting in the holding area outside Department 4, after a deputy informed him it was his turn to enter the courtroom, defendant asked to speak with his attorney regarding a legal issue. The deputy stated defendants attorney was not present in the courtroom. Defendant asked how he could enter the courtroom without representation. The correctional officer with him stated he had a choice of entering the courtroom without his attorney present or not entering the courtroom.

The bailiff stated a representative from defendants attorneys office was present, but defendants attorney was not. Defendant stated he needed to speak with his attorney in private before entering the courtroom. Brooks told defendant his choice was either to enter or not to enter. Defendant again stated he needed to speak with his attorney in private. Brooks then told the bailiff defendant refused to enter the courtroom. The bailiff gave defendant a new court date.

Defendant became agitated because he felt the matter with his attorney had to be addressed that day. Brooks approached defendant, took him by the elbow, and told him their business was finished and it was time to go. Defendant "maintained" his position, and said he would not leave until he spoke with his attorney. At that point, the correctional officers forced defendant to the ground. Defendant said if they were going to violate his rights, he was not going to walk on his own. They would have to carry him, which they did. Defendant denied ever threatening to break Brookss jaw.

After the officers carried him for a while, one of them asked if he wanted to walk on his own. Defendant stood up and said he would walk. He asked the officers if they could stop for a moment to loosen one of the ankle bracelets, which had tightened. The officers did not and carried defendant to the elevator. Defendant denied he was yelling or cursing at any time up to this point.

Defendant refused to stand in the elevator because of the tightening ankle bracelet. He also refused to stand or walk once in the basement again because of the ankle bracelet. After the officers laid him face down on the floor, Verras placed his knee in the middle of defendants back and another officer held his legs. Defendant was not offering resistance at this point.

Defendant asked Verras to move his knee, and Verras did not. At that point, defendant started to resist and move. He tried to free his hands, which were caught between his stomach and the cement floor. He succeeded in freeing one of them. By then, other officers had gathered around him, and one of them attempted to place another set of ankle bracelets on him. When someone stood on defendants ankles, he began cussing at the officers and moving his legs. Then someone sprayed him in his face with pepper spray. The additional restraints were placed on him, and he was picked up and placed in the transportation vehicle. The rear door was closed immediately. Defendant denied kicking Zamudio.

Defendant then kicked the window out of the cars rear door. Defendant stated he kicked out the window because it was hot and uncomfortable in the car, and because he felt he had been mistreated by not getting to speak with his attorney when he had wanted.

DISCUSSION

Defendant challenges his conviction under section 69 based on numerous instances of instructional error. Specifically, he claims the trial court committed prejudicial error when it failed to instruct the jury on the following matters:

(1) Section 69 actually contains two offenses, and the attempt offense required a showing of specific intent;

(2) Defendants conduct had to be unlawful;

(3) The definition of "willfully";

(4) The need for a unanimous verdict; and

(5) The crime of resisting, delaying or obstructing a peace officer in the discharge of his duty (§ 148, subd. (a)(1)) as a lesser included offense of section 69.

He alleges the errors were singularly and cumulatively prejudicial. Defendant also asks us to correct the abstract of judgments date of the violation and an error in its order of restitution.

I

Background Information

Section 69 reads in full: "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 a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment."

"The statute sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty. . . .

"A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69. To avoid the risk of punishing protected First Amendment speech, however, the term `threat has been limited to mean a threat of unlawful violence used in an attempt to deter the officer. (People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893, 895-898; cf. City of Houston v. Hill (1987) 482 U.S. 451, 460-467 [ordinance prohibiting verbal interruptions of police officers, if not limited to unprotected `fighting words, is unconstitutionally overbroad].) The central requirement of the first type of offense under section 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made." (In re Manuel G. (1997) 16 Cal.4th 805, 814-815, citations omitted.)

The first type of offense under section 69, an attempt to deter by means of an unlawful threat or violence, requires a showing of specific intent to deter or prevent an executive officer from performing his duties. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154.)

Here, the amended information charged defendant in count four with both attempting to deter the officers from performing their duties by means of threats or violence and knowingly resisting the officers in the performance of their duties by means of force or violence.

The trial courts oral and written instruction on section 69 mirrored the information. Contrary to the terms of section 69, the instructions required the jury to find defendant both attempted to deter the officers and knowingly resisted the officers. Moreover, the trial court did not instruct on the specific intent required for the attempt offense, nor did it state defendants conduct had to be unlawful. The court also did not offer an instruction on jury unanimity.

Regarding section 69, the trial court instructed the jury as follows: "Now, for count four. The defendants accused in count four of having violated section 69 of the penal code, a crime. Every person who willfully attempts by means of any threat or violence to deter or prevent [an] executive officer from performing any duty imposed upon that officer by law or who knowingly resists by the use of force or violence an executive officer in the performance of his or her duty is guilty of a violation of section 69 of the Penal Code, a crime.

At closing argument, the prosecution argued there were numerous acts by defendant on any of which the jury could convict under section 69: physically resisting Brookss attempts at moving him away from the courtroom after the new hearing date was assigned; verbally threatening to break Brookss jaw; physically struggling with Verras, Zamudio and Brooks in the basement, resulting in Zamudios knee being kicked; and kicking out the rear window of the car in which he was placed.

II

Lack of unanimity instruction

Defendant argues the trial court erred by not instructing the jurors they had to agree unanimously on the acts on which they relied to find defendant guilty of violating section 69. Under the facts of this case, we agree the court erred. The prosecution introduced evidence of numerous acts on which it argued any one was sufficient to convict under section 69, and the trial court did not give a unanimity instruction. We conclude this error was prejudicial.

Our Supreme Court recently expounded on the need for a unanimity instruction: "[T]he jury must agree unanimously the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281.) Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Castro (1901) 133 Cal. 11, 13; People v. Williams (1901) 133 Cal. 165, 168; CALJIC No. 17.01; but see People v. Jones (1990) 51 Cal.3d 294 .)

"This requirement of unanimity as to the criminal act `is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. (People v. Sutherland (1993) 17 Cal.App.4th 602, 612.) For example, in People v. Diedrich, supra, 31 Cal.3d 263, the defendant was convicted of a single count of bribery, but the evidence showed two discrete bribes. We found the absence of a unanimity instruction reversible error because without it, some of the jurors may have believed the defendant guilty of one of the acts of bribery while other jurors believed him guilty of the other, resulting in no unanimous verdict that he was guilty of any specific bribe. (Id. at pp. 280-283.) `The [unanimity] instruction is designed in part to prevent the jury from amalgamating evidence of multiple offenses, no one of which has been proved beyond a reasonable doubt, in order to conclude beyond a reasonable doubt that a defendant must have done something sufficient to convict on one count. (People v. Deletto (1983) 147 Cal.App.3d 458, 472.)" (People v. Russo (2001) 25 Cal.4th 1124, 1132, italics in original.)

We have previously noticed two occasions when an otherwise required unanimity instruction is excused: "A unanimity instruction is not required where the offenses are so closely connected to form a single transaction or where the offense itself consists of a continuous course of conduct. (People v. Diedrich[, supra, 31 Cal.3d at p. 282].) Offenses which are continuous in nature are failure to provide, child abuse, contributing to the delinquency of a minor, driving under the influence, and the like. (People v. Madden (1981) 116 Cal.App.3d 212, 218.) `The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citation.] (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)" (People v. Thompson (1995) 36 Cal.App.4th 843, 851.)

The Attorney General argues no unanimity instruction was required because this case falls within the "continuous conduct" exception. He claims defendant offered the same defense to each of the acts, and there was no reasonable basis for the jury to distinguish between the acts. We disagree with the latter argument.

The prosecutor himself distinguished between the acts and argued liability could arise under any one of them. The Attorney General does not direct us to anywhere in the record where the prosecution claimed the separate acts constituted a continuous course of conduct.

The prosecutor also apparently believed a reasonable basis existed to distinguish between the acts because he charged defendant with committing at least two separate types of acts; attempting to deter and resisting. Moreover, the trial court instructed the jury to find defendant guilty of the two separate acts. Because the acts of attempt required a showing of specific intent (People v. Gutierrez, supra, 28 Cal.4th at pp. 1153-1154), it was not only reasonable for the jury to distinguish between the acts, it was in fact necessary for the jury to distinguish between those acts constituting attempt and those constituting resisting by force in order to find defendant guilty as charged.

In this instance, the fact the separate acts happened over a short period of time is of no relevance. The case was tried and instructed on the theory the acts were of a different type and character. We thus conclude the trial court erred by not giving a unanimity instruction.

In this appellate district, "[f]ailure to give a unanimity instruction is governed by the harmless error standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-711]), which requires the error to be harmless beyond a reasonable doubt. [Citation.]" (People v. Thompson, supra, 36 Cal.App.4th at p. 853.) We conclude the failure to give a unanimity instruction in this case was prejudicial.

Initially, we recognize "[w]here the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. (People v. Deletto, supra, 147 Cal.App.3d at p. 473.) Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. (People v. Jones[, supra, 51 Cal.3d at p. 307].)" (People v. Thompson, supra, 36 Cal.App.4th at p. 853.)

We have already determined the record provides a rational basis for the jury to distinguish between the various acts. As to the credibility dispute, the jury acquitted defendant of the three counts of battery charged in the information. That acquittal demonstrates the jury did not necessarily resolve the basic credibility dispute against defendant. It is thus unknown whether the jury would have convicted defendant of each of the acts alleged to have violated section 69. Thus, the examples of harmless error just described do not apply here.

The Attorney General claims the error was harmless because "[u]nder the instructions, the jury necessarily found that [defendant] attempted to deter Officer Brooks by threatening to break his jaw, and also found that [defendant] used force or violence to deter or prevent the officers from doing their duty." This argument misses the point on two grounds. First, it is not clear the jury necessarily and unanimously agreed the threat of breaking Officer Brookss jaw constituted the act of unlawful attempt to deter. The prosecutor argued defendants kicking out the car window also was an act of attempting to deter. Nothing in the record indicates the jury unanimously agreed defendant committed one or the other of these acts.

Second, nothing in the record indicates the jury unanimously agreed as to which act constituted the unlawful resisting by force or violence. The prosecutor argued two such acts occurred; when defendant resisted Brookss attempts to remove him from the courtroom area and when defendant resisted Officer Zamudio and Verrass acts to subdue him after the officers placed him on the floor in the basement.

Any one of these acts could possibly have supported a conviction under section 69, but because no unanimity instruction was given, we have no way of knowing whether the jury unanimously determined which act defendant actually committed. We thus cannot determine beyond a reasonable doubt the error did not affect the verdict. We must reverse on this basis. Because of our decision on this point, we do not address defendants remaining arguments.

DISPOSITION

The judgment is reversed.

We concur: DAVIS, Acting P.J., RAYE, J.

"The term executive officer includes a correctional officer.

"In order to prove this crime each of the following elements must be proved.

"Again, there are four elements.

"One, a person willfully attempted to deter or prevent an executive officer from performing any duty impos[ed] upon that officer by law.

"And, two, the attempt was accomplished by means of any threats or violence.

"Three, a person knowingly resisted an executive officer in the performance of his duty.

"And, four, the resistance was accomplished by means of force or violence."

The courts written instruction given to the jury defined the crimes elements as follows: "In order to prove this crime, each of the following elements must be proved:

"1. A person willfully attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and

"2. The attempt was accomplished by means of any threat or violence.

"3. A person knowingly resisted an executive officer in the performance of his duty; and

"4. The resistance was accomplished by means of force or violence."

For purposes of comparison, CALJIC No. 7.50 reads in relevant part: "Every person who willfully [and unlawfully] attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon that officer by law, or who knowingly resists, by the use of force or violence, an executive officer in the performance of his or her duty, is guilty of a violation of Penal Code § 69, a crime. [¶] . . . [¶]

"In order to prove this crime, each of the following elements must be proved:

"[1. A person willfully [and unlawfully] attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and

"2. The attempt was accomplished by means of any threat or violence.]

"[1. A person knowingly [and unlawfully] resisted an executive officer in the performance of his or her duty; and "2. The resistance was accomplished by means of force or violence.]" (CALJIC No. 7.50, brackets in original.)


Summaries of

People v. Grissom

Court of Appeals of California, Third Appellate District, Sacramento.
Nov 25, 2003
No. C042417 (Cal. Ct. App. Nov. 25, 2003)
Case details for

People v. Grissom

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. DAMION EUGENE GRISSOM, Defendant…

Court:Court of Appeals of California, Third Appellate District, Sacramento.

Date published: Nov 25, 2003

Citations

No. C042417 (Cal. Ct. App. Nov. 25, 2003)