Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA313311, Candace J. Beason, Judge. Affirmed.
Gloria C. Cohen, 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, Senior Assistant Attorney General, Lance E. Winters and Laura J. Hartquist, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Juan Nixon Hernandez appeals from the judgment entered following a jury trial in which he was convicted of four counts of resisting an executive officer (Pen. Code, § 69) and two counts of willfully resisting, delaying, or obstructing a peace officer with attempted firearm removal (§ 148, subd. (d)). Appellant contends the evidence was insufficient to support the verdicts, and the trial court erred by refusing to instruct upon self-defense and failing to instruct, sua sponte, on a violation of section 148, subdivision (a)(1) as a lesser included offense of section 69. We affirm.
Unless otherwise noted, all subsequent statutory references pertain to the Penal Code.
FACTS
At about dusk on November 26, 2006, Los Angeles Police Department Officers Lotus Leong and Richard Priest responded to a radio call of “shots fired” in the vicinity of the 110 Freeway and Avenue 64 in Los Angeles. The suspects were described as “white men” driving “racing-type cars.” On their second pass by the location, they saw a taxi stopped in the middle of northbound Avenue 64 with its hazard lights flashing and driver’s door standing open. Appellant was standing in the traffic lanes of southbound Avenue 64, about five feet from the median and 50 to 80 feet from the taxi. Appellant was using a mobile phone.
Priest and Leong walked up to appellant and asked him if he needed help. Appellant did not respond. He appeared anxious, nervous, agitated, and fidgety. He made eye contact with Priest, but repeatedly looked at Priest’s gun and at the taxi. In English, appellant said he did not want to be in any trouble and repeatedly referred to his daughters. The officers gestured for appellant to move out of the traffic lane onto the median, but appellant would not move. Appellant’s erratic and unresponsive behavior made Priest and Leong increasingly concerned for their safety. They thought that appellant might be armed or under the influence of narcotics or alcohol. After three to five minutes, appellant stepped onto the median. As he did so, Priest touched the small of appellant’s back and did not feel a weapon. Officers Ricardo Aguirre and Jesus Martinez arrived on the scene and spoke to appellant in Spanish, asking him to calm down and telling him that they were the police and would help him. Appellant would not maintain eye contact with Martinez.
Priest decided to pat down appellant to make sure he was unarmed so that the officers could safely continue their investigation of the shooting call. As soon as Priest and Leong grasped appellant’s arms and placed them behind his back, appellant moved away and struggled. An attempt to handcuff appellant failed, and Priest directed the other officers to take appellant to the ground. Priest, appellant, Leong, and Martinez fell on the ground in a heap. Appellant continued to struggle and did not relent after Martinez sprayed him with pepper spray. Appellant tugged on the handle of Martinez’s gun and let go only after Martinez and Aguirre punched him in the face several times. Appellant then grabbed Leong’s holster. Leong put her hand on her gun to secure it while Priest bit appellant’s hand and Aguirre struck appellant’s arm with his baton. Appellant then grabbed Aguirre’s holster and pulled on it. Aguirre put one hand on his gun and used the other to punch appellant. Appellant continued to struggle until Martinez tasered him.
Appellant complained of pain and was taken to a hospital by ambulance. Officer Jeremy Olson accompanied him. Appellant kicked and attempted to get away while on the ambulance gurney. He kicked, fought, and grabbed Olson’s holster when Olson and others moved him from the gurney to a hospital bed.
The jury convicted appellant of four counts of resisting an executive officer, which pertained to Officers Martinez, Leong, Aguirre, and Olson; and two counts of willfully resisting, delaying, or obstructing a peace officer with attempted firearm removal, which pertained to Officers Martinez and Leong. The jury acquitted appellant of two additional counts of willfully resisting, delaying, or obstructing a peace officer with attempted firearm removal, which pertained to Officers Olson and Aguirre. The trial court suspended imposition of sentence and granted appellant probation for five years on terms including the service of 180 days in jail.
DISCUSSION
1. Sufficiency of evidence
Appellant contends the evidence was insufficient to support his conviction on any count. With respect to every count, he argues that the officers were not engaged in the lawful performance of their duties because his detention and search were unconstitutional. With respect to counts 1 and 2, he further argues there was no evidence that he tried to take a gun away from an officer who was holding it.
To resolve these issues, we review the whole record in the light most favorable to the judgment to decide whether substantial evidence supports the conviction, so that a reasonable jury could find guilt beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138.) We presume the existence of every fact supporting the judgment that the jury could reasonably deduce from the evidence. (People v. Barnes (1986) 42 Cal.3d 284, 303.)
The officers’ lawful performance of duties
Section 69 provides that “[e]very 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.”
Section 148, subdivision (d) provides that “every person who removes or takes without intent to permanently deprive, or who attempts to remove or take a firearm from the person of, or immediate presence of, a public officer or peace officer, while the officer is engaged in the performance of his or her lawful duties, shall be punished by imprisonment in a county jail not to exceed one year or in the state prison.”
A defendant cannot be convicted of violating either of these statutes unless the peace officer was acting lawfully at the time the defendant acted against the officer. (In re Manuel G. (1997) 16 Cal.4th 805, 815.) Accordingly, if the officers were legally unjustified in speaking to appellant, detaining him, or attempting to pat search him, appellant’s conviction would not be supported by sufficient evidence with respect to any of the counts.
“[A] detention does not occur when a police officer merely approaches an individual on the street and asks a few questions. [Citation.] As long as a reasonable person would feel free to disregard the police and go about his or her business, the encounter is consensual and no reasonable suspicion is required on the part of the officer. Only when the officer, by means of physical force or show of authority, in some manner restrains the individual’s liberty, does a seizure occur.” (In re Manuel G., supra, 16 Cal.4th at p. 821.)
The initial phase of the officers’ interaction with appellant was merely a consensual encounter. The officers approached appellant to inquire whether he needed assistance. The officers were attempting to investigate a report that someone had fired shots in that area, and appellant was standing in the midst of a traffic lane on a busy street. The officers thought appellant might have been a victim of the shooting or a “stranded motorist.” Although the officers required no justification for this consensual encounter (People v. Hughes (2002) 27 Cal.4th 287, 327), they were fully warranted in approaching appellant to inquire whether he needed help.
It is undisputed that the interaction between appellant and the officers escalated into a detention no later than the time the officers attempted to pat down appellant. The issue is instead whether it was reasonable to detain appellant at that point. A detention is reasonable under the Fourth Amendment when the detaining officer can point to specific articulable facts that, in the totality of the circumstances, would cause a reasonable officer to suspect that the person detained may be involved in criminal activity. (People v. Souza (1994) 9 Cal.4th 224, 231.)
Priest, who made the decision to pat down appellant, testified that he initially thought appellant was a victim or witness, but not a suspect. Appellant’s odd behavior quickly began to cause Priest concern, however. Appellant would not come out of the street, causing cars to veer around him. Appellant repeatedly looked back and forth between Priest’s eyes and his gun and continued to do so throughout the interaction prior to the attempt to pat him down. Appellant also looked repeatedly at the stopped taxi. He was fidgety and acted “paranoid.” Based on his experience, Priest felt that appellant was not behaving like a victim of or witness to a traumatic event. Priest became concerned that appellant might be acting so bizarrely because he was armed. Priest also thought appellant might be under the influence of a controlled substance or alcohol. Priest was “very concerned by [appellant’s] behavior” and therefore decided to pat down appellant so that the police could conduct their investigation of the “shots fired” report “in a safe manner.” After appellant resisted, Priest decided to handcuff him because “[t]he situation had been steadily escalating throughout the time that we had spoken with him. Just his demeanor and how he’s actively resisting us, he is pulling away ….” Priest did not intend to arrest appellant, just to “secure him” to protect the officers.
Leong similarly testified that she considered appellant to be a possible victim, witness, or “stranded motorist.” However, appellant was unresponsive and fidgety and appeared to be quite anxious, nervous, restless, paranoid, and unconcerned for his own safety while standing in traffic. Based upon her experience as a drug recognition expert, Leong believed appellant might be under the influence of narcotics. Leong felt the situation was “escalating” before Priest decided they should pat down appellant.
Martinez also thought that appellant was acting “paranoid” because he fidgeted, looked around a great deal, and would not maintain eye contact, even though Martinez was speaking to him in Spanish. Aguirre testified that appellant appeared to be agitated.
The record thus presents specific articulable facts known to the officers that, in the totality of the circumstances, would cause a reasonable officer to suspect that appellant might have been involved in some form of criminal activity. According to the testimony of Priest and Leong, appellant was standing in traffic on a busy street, forcing cars to slow down and swerve to avoid hitting him. This was a violation of Vehicle Code section 21954, subdivision (a). Based upon their observations of appellant’s behavior, Priest and Leong both suspected he was under the influence of a controlled substance or alcohol, a violation of section 647, subdivision (f). Appellant’s behavior, especially his frequent glances at Priest’s gun, also provided cause to believe appellant might be armed. If appellant were armed, he might be in violation of section 12020, 12025, or 12031, depending upon the type of weapon. In addition, although the officers were uncertain about whether appellant had abandoned the taxi in the traffic lane, his proximity to the taxi and his frequent glances at it could have reasonably led the officers to suspect appellant had violated Vehicle Code section 22502, subdivision (a) or Los Angeles Municipal Code section 80.51, which require a vehicle to be parked with its right wheels parallel to, and within 18 inches of, the curb, unless signs or road markings indicate that left-side parking is permitted. Under the circumstances, the officers were amply justified in detaining appellant and attempting to pat him down, given their concern about the possibility he was armed. Accordingly, the officers were acting lawfully at the time appellant resisted them and when he attempted to grab their guns.
Vehicle Code section 21954, subdivision (a) provides, “Every pedestrian upon a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles upon the roadway so near as to constitute an immediate hazard.”
Penal Code section 647, subdivision (f) provides that a person is guilty of disorderly conduct if he “is found in any public place under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, controlled substance, or toluene, in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor, any drug, controlled substance, toluene, or any combination of any intoxicating liquor, drug, or toluene, interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way.”
Vehicle Code section 22502, subdivision (a) provides, in pertinent part, as follows: “Except as otherwise provided in this chapter every vehicle stopped or parked upon a roadway where there are adjacent curbs shall be stopped or parked with the right-hand wheels of such vehicle parallel with and within 18 inches of the right-hand curb…. Where no curbs or barriers bound any two-way roadway, right-hand parallel parking is required unless otherwise indicated.”
Appellant includes in his sufficiency of evidence contention and argument that CALJIC No. 9.27 was inaccurate and misleading. Appellant forfeited this issue by failing to brief it under a separate heading. (Cal. Rules of Court, rules 8.360(a) and 8.204(a)(1)(B); Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1504, fn. 2.) In any event, appellant failed to demonstrate prejudice.
Furthermore, count eight pertained to appellant’s resistance against Olson at the hospital. Olson was not involved in the events prior to appellant’s arrest, and appellant offers no argument regarding the insufficiency of the evidence as to this charge.
Attempt to remove firearm
Section 148, subdivision (d) requires that the prosecution “establish that the defendant had the specific intent to remove or take the firearm by demonstrating that any of the following direct, but ineffectual, acts occurred: [¶] (1) The officer’s holster strap was unfastened by the defendant. [¶] (2) The firearm was partially removed from the officer’s holster by the defendant. [¶] (3) The firearm safety was released by the defendant. [¶] (4) An independent witness corroborates that the defendant stated that he or she intended to remove the firearm and the defendant actually touched the firearm. [¶] (5) An independent witness corroborates that the defendant actually had his or her hand on the firearm and tried to take the firearm away from the officer who was holding it. [¶] (6) The defendant’s fingerprint was found on the firearm or holster. [¶] (7) Physical evidence authenticated by a scientifically verifiable procedure established that the defendant touched the firearm. [¶] (8) In the course of any struggle, the officer’s firearm fell and the defendant attempted to pick it up.”
The parties agree that the jury relied upon the fifth factor. That the jury considered the fifth factor is shown by its inquiry during deliberations regarding the definition of “holding,” and whether a police officer constituted an independent witness. With the consent of counsel, the court replied that the jury could use any of the several common meanings for “holding,” and that the Penal Code did not specify who was or was not an independent witness. Appellant argues that “holding” in the fifth factor necessarily means “having and keeping in one’s grasp,” which he interprets to require the officers to be holding their guns outside of their holsters. We disagree. Moreover, the evidence supported application of the second factor.
With respect to Martinez’s gun, Aguirre testified that appellant “with his right hand reached up and he grabbed the front portion of … my partner’s weapon of his handgun, the handle of his weapon.” Appellant “actually grabbed the gun.” “It looked like he was attempting to pull up on the – pull up on the firearm.” Aguirre demonstrated appellant’s hand position and movement at trial, which defense counsel described for the record as reaching underneath the gun and trying to pull it up. Aguirre placed his hand on Martinez’s gun to push it back into the holster and hold it there. Appellant did not release his grip on Martinez’s gun until after Aguirre had punched him in the face four or five times.
In addition, Priest testified he saw appellant’s “right hand pulling on an officer’s weapon, on the butt end of the weapon, pulling back and forth violently trying to get it out.” Priest could not tell which officer’s gun it was, but this occurred right after he heard Aguirre yell about appellant “going for his partner’s gun.” Priest demonstrated for the jury the manner in which appellant pulled on the gun, but no one described Priest’s actions for the record. Priest knew it was appellant who was pulling on the gun because he recognized appellant’s shirtsleeve above the hand.
There was thus substantial evidence that appellant actually had his hand on Martinez’s gun and was actively attempting to take it from its holster. Aguirre pushed the gun back into the holster and held it there. A reasonable jury could find that the prosecution proved the second factor: appellant partially removed Martinez’s gun from its holster.
With respect to Leong’s gun, Aguirre testified that appellant “grabbed the back portion of [Leong’s] holster” “and the handle portion” of her gun with his left hand and pulled on the holster and the gun. Leong testified she felt tugging on her holster and heard Aguirre warn her that appellant was “going for” her gun. She placed her hand on the grip of the gun and pushed it down into the holster. Appellant did not release his grip on Leong’s gun until after Aguirre struck him with a baton about 10 times.
Based upon this testimony, a reasonable jury could find that the prosecution proved the fifth factor, i.e., appellant actually had his hand on Leong’s gun and tried to take it away from “the officer who was holding it.” Appellant has provided no authority or legislative history supporting his contention that “holding” required that the officer hold the gun outside of its holster, as opposed to holding it in the holster. Absent evidence that the legislature intended a particular meaning, the words used in a statute are construed in accordance with their usual or ordinary meaning. (People v. Edwards (1991) 54 Cal.3d 787, 833.) The common meanings of the transitive verb “hold” most applicable in this context are “grasp, carry, or support with one’s arms or hands,” “have in one’s possession” (The New Oxford American Dictionary, (Oxford University Press, Oxford Reference Online, 2005) [as of October 22, 2008]), “have at one’s disposal,” “keep under restraint,” or “have or maintain in the grasp” (Merriam-Webster Online Dictionary [as of October 22, 2008]). Accordingly, Leong was “holding” the gun because she had it in her possession and at her disposal, and because she grasped it and kept it under restraint when she used her hand to push it down into the holster to prevent appellant from removing it.
Appellant’s sufficiency of evidence claim therefore has no merit.
2. Refusal of self-defense instruction
The trial court refused appellant’s request to instruct the jury upon self-defense against assault. Appellant contends that the court erred by refusing to so instruct.
Appellant requested CALJIC No. 5.30, which provides as follows: “It is lawful for a person who is being assaulted to defend [himself] [herself] from attack if, as a reasonable person, [he] [she] has grounds for believing and does believe that bodily injury is about to be inflicted upon [him] [her]. In doing so, that person may use all force and means which [he] [she] believes to be reasonably necessary and which would appear to a reasonable person, in the same or similar circumstances, to be necessary to prevent the injury which appears to be imminent.”
The trial court need not give a requested instruction unless it is supported by substantial evidence. (People v. Marshall (1997) 15 Cal.4th 1, 39.)
Self-defense requires an actual and reasonable belief in the need to defend against an imminent danger of bodily injury. (People v. Jefferson (2004) 119 Cal.App.4th 508, 517-518.) The trier of fact must consider what would appear to be necessary to a reasonable person in the position of defendant, with the defendant’s knowledge and awareness. (Id. at p. 518.)
Because appellant did not testify, and no other evidence showed that he actually believed the officers posed a danger of imminent bodily injury to him, there was no evidentiary basis for a self-defense instruction. Nor does it appear that a reasonable person in appellant’s position would have believed it necessary to use force to defend him- or herself against the officers. Accordingly, the trial court did not err by refusing appellant’s request for a self-defense instruction.
3. Failure to instruct sua sponte on lesser included offense
Although the parties agreed with the trial court that there were no applicable lesser included offenses, appellant contends the trial court was required to instruct, sua sponte, upon section 148, subdivision (a)(1) as a lesser included offense of section 69.
A trial court must instruct on lesser included offenses whenever substantial evidence raises a question as to whether all of the elements of the charged offense are present. (People v. Cunningham (2001) 25 Cal.4th 926, 1008.) Substantial evidence is evidence sufficient to deserve consideration by the jury, i.e., evidence a reasonable jury could find persuasive. (Ibid.)
Section 148, subdivision (a)(1) provides that it is a misdemeanor to willfully resist, delay, or obstruct a public officer, peace officer, or emergency medical technician from discharging or attempting to discharge any duty of his or her office or employment. In contrast, section 69 prohibits either (1) attempting, “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 (2) knowingly resisting, “by the use of force or violence, such officer, in the performance of his duty.”
There exists a split in authority regarding whether a violation of section 148, subdivision (a)(1) is necessarily included within a violation of section 69. (Cf. People v. Belmares (2003) 106 Cal.App.4th 19, 24 and People v. Carrasco (2008) 163 Cal.App.4th 978, 985.) Even assuming that section 148, subdivision (a)(1) establishes a lesser offense included within section 69, however, the trial court in this case did not err by failing to instruct upon section 148, subdivision (a)(1) because no evidence supported a finding that appellant was guilty of the lesser offense, but not the greater. Every witness to the initial episode testified that appellant used force in resisting the officers. Before they all went to the ground, appellant attempted to pull away from the officers’ grasp. After they were on the ground, he continued to attempt to fight, struggle, and pull away from the officers. He “wrestl[ed]” with them, “violently pull[ed] back and forth,” kicked at them, grabbed for their guns, and pulled Aguirre down by his holster. Similarly, in the later episode at the hospital, appellant pulled away from and kicked at Olson, his partner, and hospital personnel when they moved him from the ambulance gurney onto the hospital bed. There was thus no evidence to support a finding that appellant violated section 148, subdivision (a)(1), but not section 69.
DISPOSITION
The judgment is affirmed.
We concur: MALLANO, P.J., ROTHSCHILD, J.
Los Angeles Municipal Code section 80.51, subdivision (a) provides as follows: “No person shall stop or park any vehicle within 18 inches of the left hand curb of any one way roadway unless signs or markings are in place indicating that such stopping or parking is permitted.”