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People v. Lee

California Court of Appeals, Fifth District
Jun 30, 2011
No. F059852 (Cal. Ct. App. Jun. 30, 2011)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Stanislaus County, No. 1405456, 1406492, Linda A. McFadden, Judge.

Kari E. Hong, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Peter W. Thompson, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

THE COURT

Before Wiseman, Acting P.J., Detjen, J. and Franson, J.

This is an appeal from judgment imposed after a jury found defendant James Lee guilty of two felonies and one misdemeanor. We affirm.

FACTS AND PROCEDURAL HISTORY

The sole issue on this appeal involves defendant’s misdemeanor conviction. We also provide a very brief summary of the felony convictions in this case for context.

On July 18, 2009, Modesto police officer Robert Hall saw defendant standing astride his bicycle in the middle of the street. Hall stopped beside defendant and obtained defendant’s identification. He asked defendant if he was on probation. Defendant denied he was. Hall checked his database and determined defendant was on probation and was subject to a search condition. Hall informed defendant of this discovery and reached for the cell phone defendant was holding. Defendant started running away from Hall. After about 50 feet, Hall tackled defendant and brought him to the ground. Hall was unable to place handcuffs on defendant, who managed to get to his feet and start running again. Hall told defendant to stop or he would be “Tasered.” Defendant did not stop. Hall fired his Taser from about 10 feet away, bringing defendant to the ground. Defendant continued to struggle; Hall tried to discharge the Taser again, but the batteries were too depleted to discharge effectively. Eventually, Hall brought defendant under control and handcuffed him. During a search of defendant, heroin and cocaine base were found in defendant’s possession.

Defendant was charged by information with two felony counts for possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and one misdemeanor count of resisting or delaying a peace officer in the discharge of his office (Pen. Code, § 148, subd. (a)(1)), as well as Penal Code section 667.5, subdivision (b) enhancements with respect to the felony counts. At trial, the case was consolidated with charges arising from another incident. On January 7, 2010, a jury found defendant guilty of one count of possession of heroin for sale (Health & Saf. Code, § 11351), two counts of possession of a controlled substance, and one misdemeanor count of violation of Penal Code section 148, subdivision (a)(1). Defendant admitted three prior prison term allegations (see Pen. Code, § 667.5, subd. (b)) and a prior drug conviction allegation (see Health & Saf. Code, § 11370.2, subd. (a)). The court sentenced defendant to an operative prison term of nine years, composed of the three-year middle term for violation of Health and Safety Code section 11351, a three-year enhancement pursuant to Health and Safety Code section 11370.2, subdivision (a), and three one-year enhancements pursuant to Penal Code section 667.5, subdivision (b). The court imposed concurrent middle term sentences on the two Health and Safety Code section 11350, subdivision (a) counts and a concurrent sentence of 30 days local custody on the Penal Code section 148, subdivision (a)(1) count.

The original abstract of judgment prepared in this case reflected the nine-year sentence imposed by the court, but allocated the sentence in a different manner. In defendant’s opening brief, he requests that we order correction of the abstract of judgment to reflect the sentence actually imposed. Respondent has informed us that such correction has already occurred in the trial court and defendant agrees that no further action is required.

Defendant filed a timely notice of appeal.

DISCUSSION

Defendant was convicted of violating Penal Code section 148, subdivision (a)(1), resisting arrest, arising out of his activities on July 18, 2009. The elements that must be shown to prove that a defendant has committed the crime of resisting arrest are “‘(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations].’ [Citation.] The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence.” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.)

“‘When a peace officer or a private citizen employs reasonable force to make an arrest, the arrestee is obliged not to resist, and has no right of self defense against such force. [Citations.] On the other hand, the use of unreasonable or excessive force to make an arrest constitutes a public offense. [Citation.] And all persons have a right to prevent injury to themselves by resisting a public offense [citation]. Moreover, [‘]a person who uses reasonable force to protect himself [...] against the use of [...] excessive force in making an arrest is not guilty of any crime.[’] [Citation.] [¶] The right to resist excessive force used to make an arrest is an application of the law of self-defense.’” (People v. Adams (2009) 176 Cal.App.4th 946, 952-953.)

Defendant claims the evidence is insufficient to support his conviction. In particular he argues, the officer’s use of the Taser was an unreasonable use of force and thus the prosecution failed to prove that his resistance was to the lawful conduct of an officer. If the officer’s conduct was unlawful, then the officer was not engaged in the lawful performance of his duties and defendant cannot be convicted of the crime. Because the prosecution failed to prove the officer was engaged in the lawful performance of his duties, defendant contends the evidence does not support all elements of the crime and his conviction cannot stand.

Whether the evidence was sufficient to support defendant’s conviction is not determined in this case by the officer’s use of the Taser. The crime defined in Penal Code section 148 was complete before the Taser was employed. As respondent correctly points out, even if the use of the Taser by the officer was excessive, the excessive force would not negate the lawfulness of the initial arrest attempt nor would it negate the unlawfulness of defendant’s attempt to resist the officer on the first occasion when he ran, or the second occasion when he ran after the officer grabbed him in a bear hug and commanded him to stop resisting. Accordingly, we need not—and do not—decide whether use of the Taser in these circumstances was an excessive use of force.

The crime of resisting arrest was complete before the officer used his Taser on defendant. Defendant failed to comply with the officer from the outset while the officer was engaged in the lawful performance of his duties. Substantial evidence support defendant’s conviction for resisting arrest.

DISPOSITION

The judgment is affirmed.


Summaries of

People v. Lee

California Court of Appeals, Fifth District
Jun 30, 2011
No. F059852 (Cal. Ct. App. Jun. 30, 2011)
Case details for

People v. Lee

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMES LEE, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Jun 30, 2011

Citations

No. F059852 (Cal. Ct. App. Jun. 30, 2011)