Opinion
A151000
07-20-2018
THE PEOPLE, Plaintiff and Respondent, v. VINCENT MARVIN LOPEZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. SCN226762)
A jury found defendant Vincent Marvin Lopez guilty of forcible resistance to an executive officer (Pen. Code, § 69) and attempted petty theft (Pen. Code, § 484). As a result, defendant was sentenced to a total term of two years. Defendant contends the trial court erred by failing to fully instruct the jury on the right to use self-defense in resisting an officer. He also claims the court erred in ordering him to pay a $150 probation investigation report fee. We affirm the judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I. Background
On February 23, 2017, an amended information was filed charging defendant with attempted second degree robbery (Pen. Code, §§ 664/211; count I), threatening an executive officer in the performance of her duties (§ 69, subd. (a); count II), and misdemeanor battery on a peace officer (§ 243, subd. (b); count III.) The information alleged defendant suffered five prior convictions for which he served prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code except as otherwise stated. --------
On March 9, 2017, a jury found defendant not guilty of attempted robbery, but guilty of the lesser included offense of attempted petty theft (§ 484). He was found guilty of resisting a peace officer, and not guilty of battery on a peace officer.
On April 4, 2017, the trial court sentenced defendant to a two-year split sentence on the section 69 violation—one year to be served in county jail and one year in post-release community supervision. He was also to serve a concurrent term of 90 days in county jail on the attempted petty theft offense. After custody credits were applied, defendant had approximately one month remaining on his local sentence. II. Trial
A. Sergeant Candiece Lewis's Testimony
On November 3, 2016, at about 3:30 p.m. or 4:30 p.m., Sergeant Candiece Lewis and Captain Teresa Ewins were on patrol in the Tenderloin district of San Francisco. Lewis observed a suspect who appeared to be breaking into a vehicle. As she was attempting to detain the suspect, her body camera fell off of her uniform and landed in the street between the vehicle and the curb. She did not pick it up because she was in the process of detaining the suspect. As she was placing handcuffs on the suspect, she heard the camera make a beeping sound. She looked towards the sound and saw defendant standing in the area where the sound was coming from. She noticed that her camera was no longer in the street. She called out to Ewins and advised her that she thought defendant had her camera.
While Ewins was speaking to defendant, a man came out of a liquor store and told Lewis that defendant had picked up the camera and walked away. She asked Ewins to take custody of the suspect so that she could go talk to defendant. She then walked towards him and asked him for her camera. He said that he did not have it. She told him that she knew he had it, and again asked him to give it back to her. He said he did not have it and became angry and agitated. She told him to turn around and put his hands on the back of his head so that she could search him for her camera. He raised one arm but did not comply with her order. As she reached for his left shoulder to detain him, he punched the left side of her face with his right fist. She pulled him to the ground and he was placed in handcuffs. Lewis sustained a bruise on her face which lasted four to five days. After defendant was arrested, the camera was retrieved from his left front pants pocket. At trial, footage taken from the body camera was played for the jury.
B. Defendant's Testimony
Defendant testified on his own behalf. At the time of trial, he was 58 years old and homeless. He had been staying in the Tenderloin area for the past 12 years and received food from Glide and St. Anthony's. He has had mostly negative experiences with the police. Sometimes they kick people who are sleeping on the street. Defendant felt that he had been harassed for being homeless and Black.
Defendant stated that on the day of the incident, he was sitting on a chair in front of a store. He noticed a man get into a car that had broken glass around it. When he saw two female officers coming down the street, he gathered his things and started to leave because he did not want to get harassed by the police. As he was leaving, he saw that one of the officers "snatched" the man out of the car without questioning him. He thought the officer was abusing her power because she was White and she had a gun. While his back was turned, defendant heard an object fall. He turned around and picked it up, thinking it was a Nintendo toy. He thought the item had belonged to the man who had been snatched from the car, and believed that the man was trying to give him the item. Defendant started walking away. He explained that he walks with a limp and uses a cane.
An officer approached defendant and said, "Give me back my camera." He did not know that the item he had picked up was a camera because it did not look like a normal camera. He continued to walk away and she snatched him by the collar while his back was to her. They fell to the ground. He was thinking about Rodney King, and did not want to be "whooped on." The officer hit him on the left side of his face and he hit her back once or twice. He was scared for his life and thought he was going to be treated like Rodney King.
At this point in his testimony, a recording was played for the jury in which defendant is heard saying "stop, stop, stop." Defendant testified he said that because the officer was "manhandling" him. Another officer came over and he was arrested. When asked where the camera was, he said it was in his pocket. He also made a statement to the police that Lewis had been hitting him "like a punching bag" and he had hit her back.
Defendant knew Lewis was a police officer when he hit her. He maintained that she hit him first, using her hands. He acknowledged she did not use a baton, draw a firearm, or use pepper spray on him. He also said he knew the item he picked up off the ground did not belong to him. He intended to sell the item to get a room or food. Defendant also admitted he had been convicted of felony grand theft in 2006.
C. Conclusion of Trial
The trial court instructed the jury on the charge of resisting an executive officer or a peace officer, including the principle that "[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties." The jury was also instructed that if a peace officer uses unreasonable or excessive force while attempting to arrest or detain a person, then that person may lawfully use reasonable force to defend himself. As to the crime of battery against a peace officer and its lesser included offenses, the jury was instructed that the prosecution had to prove defendant was not acting in self-defense.
During closing argument, the prosecutor told the jury that defendant did not have the right to use self-defense to resist detention if Lewis was using reasonable force to detain him: "He was refusing to comply, and she was going to use reasonable force to get him to comply. He can't then decide, well, you know what, I don't want to listen to what you're asking me to do. I know that I have your property. I know that you're a police officer, but you're not going to tell me what to do and then expect to be able to respond with violence when she tries to actually put her hands on him to make him, to essentially physically detain him. That's not within his right. And the law clearly states that." In response, defendant's counsel argued that defendant had acted in self-defense because Lewis had used excessive force.
On March 9, 2017, the jury found defendant not guilty of attempted second degree robbery, but guilty of attempted petty theft, a misdemeanor. The jury also found defendant guilty of threat to an executive officer, a felony, but not guilty of battery upon an officer and not guilty of any of the lesser included battery offenses.
On April 4, 2017, the trial court denied defendant's motion for a new trial. The court sentenced defendant to two years in state prison with a split sentence, the second half of the sentence to be served in the reentry pod. He was ordered to pay a $300 restitution fine, a $40 court operations assessment, and a $30 criminal conviction assessment. He was also ordered to pay a $135 booking fee and a $150 presentence report fee. He was sentenced to a concurrent term of six months on the misdemeanor petty theft charge. This appeal followed.
DISCUSSION
I. Claimed Instructional Error
Defendant argues that although the trial court correctly gave the standard self-defense instruction (CALCRIM No. 3470) with respect to the crime of battery against an officer (§ 243, subd. (b)), the court had a sua sponte duty to give that same instruction in relation to the section 69 offense. He asserts the court's failure to do so resulted in incomplete instructions of self-defense on the section 69 charge. He also asserts the error was aggravated when the court, in response to a jury question about the availability of self-defense to the charge of resisting an officer, expressly told the jury not to consider self-defense in relation to that charge. He contends that the court's errors violated his due process rights. We disagree.
" 'It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury's understanding of the case.' " (People v. Sedeno (1974) 10 Cal.3d 703, 715 (Sedeno), disapproved on other grounds in People v. Breverman (1998) 19 Cal.4th 142, 149 (Breverman) & People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) "The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses, . . . and on the relationship of these defenses to the elements of the charged offense." (Sedeno, at p. 716.) However, in the case of defenses, "a sua sponte instructional duty arises 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (Breverman, at p. 157.) II. Relevant Jury Instructions Given at Trial
Section 69, subdivision (a) 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 the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment." Violation of section 69 can be committed two different ways: attempting to deter a peace officer by threats or violence, or resisting an officer by the use of force or violence. (People v. Smith (2013) 57 Cal.4th 232, 240-241 (Smith).)
The trial court instructed the jury on the elements of resisting an executive officer with CALCRIM No. 2652, as follows:
"The defendant is charged in Count 2 with resisting an executive officer in the performance of that officer's duty in violation of Penal Code section 69. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully used force or violence to resist an executive officer; [¶] 2. When the defendant acted, the officer was performing her lawful duty; [¶] AND [¶] 3. When the defendant acted, he knew the executive officer was performing her duty.
"An executive officer is a governmental official who may use his or her own discretion in performing his or her job duties. [A] peace officer is an executive officer. [¶] A sworn member of the San Francisco Police Department is a police officer. [¶] The duties of a peace officer include detaining and/or arresting individuals suspected of a crime.
"A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties; Instruction No. 2670 explains when an arrest or detention is unlawful and when force is unreasonable or excessive." (Italics added.)
The trial court instructed with CALCRIM No. 2670 on the definition of lawful performance of duties and the use of force by an officer. The jury was told, in pertinent part: "The People have the burden of proving beyond a reasonable doubt that Candiece Lewis was lawfully performing her duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of resisting an executive officer or resisting a peace officer. [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention." (Italics added.)
As to use of force, the jury was instructed as follows: "Special rules control the use of force. [¶] A peace officer may use reasonable force to arrest or detain someone to prevent escape, to overcome resistance, or in self-defense. [¶] If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer's use of reasonable force. However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably should have known that the office was arresting him. [¶] If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest or detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself." (Italics added.)
The trial court also instructed on the elements of misdemeanor battery against a peace officer (§ 243, subd. (b)) using CALCRIM No. 945, in pertinent part: "The defendant is charged in Count 3 with battery against a peace officer in violation of Penal Code section 243. [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. Candiece Lewis was a peace officer performing the duties of a San Francisco Police Officer; [¶] 2. The defendant willfully and unlawfully touched Candiece Lewis in a harmful or offensive manner; [¶] AND [¶] 3. When the defendant acted, he knew, or reasonably should have known, that Candiece Lewis was a peace officer who was performing her duties; [¶] AND [¶] 4. The defendant did not act in self-defense." (Italics added.)
The jury was further instructed with CALCRIM No. 3470 on self-defense as a defense to misdemeanor battery against an officer, and the lesser included offenses of simple battery and simple assault. The instruction, in relevant part, advised that: "Self-defense is a defense to battery on a peace officer charged in Count 3 and the lesser crimes of simple battery and simple assault. The defendant is not guilty of those crimes if he used force against the other person in lawful self-defense. The defendant acted in lawful self-defense if: [¶] 1. The defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] 2. The defendant reasonably believed that the immediate use of force was necessary to defend against that danger; [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger." (Italics added.)
Defendant did not object to the jury instructions related the section 69 violation, nor he did request further instructions on self-defense as to that offense. III. The Jury Was Properly Instructed
A defendant is guilty of violating section 69 when he or she resists the officer by the use of force or violence as long as that officer was acting lawfully at the time of the offense. (Smith, supra, 57 Cal.4th at p. 241.) However, an essential element of that offense is that the officer at the time of the arrest must be engaged in the lawful performance of his or her duties, and use of excessive force by an officer to accomplish an arrest is unlawful. (People v. White (1980) 101 Cal.App.3d 161, 167 (White).) Thus, where an arrest is made with excessive force, the arrest is unlawful and the defendant is not guilty of those crimes that by definition require the officer to be lawfully engaged in the performance of his or her duties. (People v. Olguin (1981) 119 Cal.App.3d 39, 45 (Olguin).) Stated differently, when a peace officer uses unreasonable or excessive force in making the arrest or the detention, the person being arrested does not violate the law if he or she uses reasonable force to defend him- or herself against the use of excessive force. (People v. Sons (2008) 164 Cal.App.4th 90, 102-103.)
In White, supra, 101 Cal.App.3d 161, the defendant assaulted multiple arresting officers, struggled with the officers, and bit an officer after he administered a carotid restraint (a "sleeper" hold). (Id. at p. 165.) The jury convicted the defendant of assault with a deadly weapon on a peace officer and resisting arrest. (Id. at p. 164.) On appeal, the defendant agreed the jury was correctly instructed on an officer's right to use reasonable force to effect an arrest, but argued that the instructions failed to explain the relationship between excessive force in making the arrest and the defendant's right of self-defense. (Id. at p. 166.) The Court of Appeal concluded that the instructions were incomplete and did not address the issue of defendant's right to defend against an officer's use of excessive force. (Id. at p. 168.)
Here, the instructions fully advised the jury on how and when an arrestee may use reasonable force to protect himself or herself. The trial court gave CALCRIM No. 2652, which requires that the peace officer be "lawfully" performing her duty. The court then gave CALCRIM No. 2670, further describing the requirement of lawful performance by a peace officer and the right to use reasonable force to resist an officer's unlawful use of force. As noted above, CALCRIM No. 2670 advised the jury, "If a peace officer uses unreasonable or excessive force while arresting or attempting to arrest . . ., that person may lawfully use reasonable force to defend himself or herself." (Italics added.) In other words, the instruction encompassed the "defense of use of reasonable force to resist excessive force" that specifically arises in the section 69 context. (See Olguin, supra, 119 Cal.App.3d at p. 47.) " '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, 953; see People v. Curtis (1969) 70 Cal.2d 347, 356.)
Defendant maintains the jury should have been told that if he reasonably believed he was in imminent danger of suffering bodily injury at the hands of Lewis, he lawfully acted in self-defense in punching her and therefore was not guilty of a section 69 violation. However, the issue of his perception does not give rise to self-defense under this section. Instead, it is the officer's unlawful conduct, i.e., the use of unreasonable or excessive force, that gives rise to a right to defend himself. The court properly instructed the jury as to when the right to self-defense is triggered. Unlike White, supra, 101 Cal.App.3d 161, the trial court in this case instructed the jury that if the officer used unreasonable or excessive force, she was not lawfully performing her duties. The trial court further instructed that in order to find defendant guilty of the charged offenses, the jury had to find that the officer was lawfully performing her duties when defendant resisted arrest. Having found defendant guilty of violating section 69, subdivision (a), the jury must have concluded all elements had been proven beyond a reasonable doubt, including that Lewis was lawfully performing her duties. There is no privilege to use self-defense against a lawful arrest. Thus, a more complete self-defense instruction was not required. The fact that the jury acquitted defendant on the battery charge based on his claim of self-defense does not change this result. Simply put, the elements of the crime of battery against a police officer are different from the elements of the crime of forcibly resisting arrest. IV. The Trial Court Properly Responded to the Jury's Question
Defendant further argues that the trial court erred in failing to correctly respond to the jury's question under section 1138, and by expressly telling the jury not to consider the self-defense instruction in CALCRIM No. 3470 as to the section 69 charge. The jury sent a request during deliberation asking, "[F]or [CALCRIM No.] 2652, is self-defense a reason to use force/violence to resist an executive officer?" The court responded: "For [CALCRIM No.] 2652 you refer to the use of force portion of instruction 2670 not the self defense instruction in [CALCRIM No.] 3470." (Underlining in original.)
Under section 1138, trial courts are required to instruct jurors during deliberations if they " 'desire[] to be informed on any point of law arising in the case.' " (People v. Cleveland (2004) 32 Cal.4th 704, 755.) A trial court may satisfy this duty by simply rereading instructions already given if those instructions are full and complete and adequately answer the jury's question on the facts of the case. (See People v. Smithey (1999) 20 Cal.4th 936, 984-985.) As we have discussed, the court correctly instructed the jury that, as to resisting arrest, a right to self-defense does not arise in the absence of an officer's unlawful conduct. The court's response to the jury's question was correct. The court properly redirected the jury back to the instructions on the use of force in CALCRIM No. 2670. V. Imposition of Probation Report Fee
Defendant next asserts the trial court erred in ordering him to pay the $150 probation investigation and report fee because there was no evidence that he had the ability to pay the fee. The People urge that the claim has been forfeited because he failed to object or to request a hearing on his ability to pay in the trial court. We agree.
In People v. Trujillo (2015) 60 Cal.4th 850 (Trujillo), the Supreme Court reviewed the imposition of a probation supervision fee that was entered absent a finding of the defendant's ability to pay, as is required by section 1203.1b. (Trujillo, at pp. 853-854.) The court held that the defendant had forfeited the ability to challenge imposition of the probation supervision fee on appeal by failing "to assert noncompliance with section 1203.1b in the trial court." (Trujillo, at p. 858.) In doing so, the court rejected the argument that lack of a knowing and intelligent waiver under section 1203.1b constituted "clear and correctable legal error cognizable on appeal despite the lack of a contemporaneous objection." (Ibid.) The court instead concluded that the statute's procedural safeguards did not alter the defendant's burden "to assert noncompliance with section 1203.1b in the trial court as a prerequisite to challenging the imposition of probation costs on appeal . . . ." (Ibid.) The court analogized to other discretionary sentencing choices made by trial courts in which "the existence, per se, of procedural safeguards in the sentencing process, such as the right to counsel and to present evidence and argument, did not prevent us from holding the forfeiture rule should apply . . . ." (Ibid.)
In People v. Aguilar (2015) 60 Cal.4th 862, the Supreme Court similarly held that the defendant's failure to challenge probation-related costs under section 1203.1b precluded him from challenging those fees on appeal. (Id. at pp. 864, 866-868.) And in the predecessor case of People v. McCullough (2013) 56 Cal.4th 589, 591, the court held that the defendant forfeited an insufficiency of the evidence challenge to his ability to pay a jail booking fee by failing to object in the trial court. A "[d]efendant may not 'transform . . . a factual claim into a legal one by asserting the record's deficiency as a legal error.' [Citation.] By 'failing to object on the basis of his [ability] to pay,' defendant forfeits both his claim of factual error and the dependent claim challenging 'the adequacy of the record on that point.' " (Id. at p. 597.) The court thus concluded that "a defendant who does nothing to put at issue the propriety of imposition of a booking fee forfeits the right to challenge the sufficiency of the evidence to support imposition of the booking fee on appeal . . . ." (Id. at p. 598.)
At sentencing, the court ordered defendant to pay the $150 probation report fee along with various other fees, and advised him, "The fines and fees can be paid off on a payment plan with the collections division based upon your ability to pay." Defendant did not object. In view of the binding authority discussed above, we conclude that defendant has forfeited his challenge to imposition of the probation report fee based on the lack of an ability-to-pay finding. VI. Ineffective Assistance of Counsel
Finally, defendant claims that his trial counsel rendered ineffective assistance by failing to request a self-defense instruction on the section 69 offense, and failing to object to the imposition of the probation report fee. As to the self-defense instruction, we have already concluded that such an instruction was not required and therefore counsel was not deficient in failing to request it.
Because defendant's probation report fee claim was forfeited, we will consider his ineffective assistance of counsel claim. To prevail on a claim of ineffective assistance of counsel, defendant must first show trial counsel's "performance was inadequate and fell below an objective standard of reasonableness." (In re Thomas (2006) 37 Cal.4th 1249, 1257.) Second, defendant must establish that this deficiency in trial counsel's performance prejudiced the outcome of the case. (Strickland v. Washington (1984) 466 U.S. 668, 690-692; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) "On direct appeal, a conviction will be reversed for ineffective assistance only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation." (People v. Mai (2013) 57 Cal.4th 986, 1009.)
Defendant fails to establish either prong. In this case, the trial court specifically told defendant that he could arrange a payment plan with the collection unit based upon his ability to pay. Thus, trial counsel appears to have made a reasonable decision not to object. Furthermore, defendant fails to show prejudice because he is statutorily entitled to petition the probation officer or the court for additional hearings on his ability to pay. (§ 1203.1b, subds. (c), (f).) Accordingly, we reject defendant's claim of ineffective assistance of counsel.
DISPOSITION
The judgment is affirmed.
/s/_________
Dondero, J. We concur: /s/_________
Margulies, Acting P. J. /s/_________
Banke, J.