Opinion
B229901
11-16-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVE JIM MAQUEDA, Defendant and Appellant.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Michael R. Johnsen and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Los Angeles County Super. Ct. No. MA049137
APPEAL from a judgment of the Superior Court of Los Angeles County, Bernie C. Laforteza, Judge. Affirmed in part, reversed in part, and remanded.
Jennifer Hansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lawrence M. Daniels, Supervising Deputy Attorney General, Michael R. Johnsen and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant and appellant Steve Jim Maqueda (defendant) was convicted of two counts of resisting an executive officer (Pen. Code, § 69 ), one count of misdemeanor vandalism (§ 594, subd. (a)), and two counts of battery (§§ 242-243). On appeal, defendant contends that the trial court erred on the two counts of resisting an executive officer by failing to instruct the jury on a required element of the crime, and by failing sua sponte to give the jury a unanimity instruction. We reverse the judgment on the two counts of resisting an executive officer.
All statutory citations are to the Penal Code unless otherwise noted.
BACKGROUND
A. Factual Background
1. Resisting Executive Officers
Challenger Memorial Youth Center, Camp Onizuka, is a Los Angeles County Probation Department facility that houses high-risk juvenile offenders. Los Angeles County Deputy Probation Officer Jeremy McPherson testified that in March 2010, he worked at Camp Onizuka, and his duties included maintaining the safety of the dorms where juvenile wards are housed.
Officer McPherson testified that at approximately 2:55 a.m., on March 4, 2010, while the wards were in bed, he was working in the control center of the dorm and heard defendant yelling, "'who bang'" and "'motherfucker,'" disturbing and waking up the wards in the dorm. Los Angeles County Deputy Probation Officer Brian Hall testified that he was also working in the control center at Camp Onizuka that night, and he heard someone yell loudly, "'who bang. Fuck staff."
Officer McPherson testified that he went to defendant's bed and told defendant that he heard him yell an obscenity and defendant would have to go to the special housing unit (SHU). SHU houses wards who are out of control and create disturbances. Defendant initially denied making the statements, but he then complied with Officer McPherson's instructions and prepared to be transferred to the SHU.
Officer McPherson testified that he and Officer Hall began walking defendant to the SHU when defendant yelled again, "who bang, motherfucker." Officer McPherson placed his hands on defendant's shoulder and said, "'Maqueda'—as if to calm him down—'stop.'" Defendant turned around and tried to elbow Officer McPherson and swung at him, but defendant did not make contact with Officer McPherson. Officer McPherson wrapped his arms around defendant and assisted him to the ground in a manner approved by the Department of Probation, and defendant continued to resist. Officer Hall testified that defendant "was resisting all the way through," and while being handcuffed, defendant was lifting up on his arms and legs to try to stand up. Defendant's yelling caused half the wards in the dorms to be awakened, and they were "all yelling as well."
Officer Hall testified that defendant yelled, "who bang."
2. Vandalism
Los Angeles County Deputy Probation Officer Luis Guzman testified that on March 4, 2010, defendant was placed in a cell at the SHU that did not contain graffiti. On March 8, 2010, Officer Guzman observed a lot of graffiti "all over the cell," and Officer Guzman said to defendant, "You've been busy." Defendant responded that he "needed to redecorate the room." The graffiti advertised the Florencia Trece gang. Officer Guzman also saw the words "fuck staff" written on the wall of the cell, and he asked defendant, "fuck staff?" Defendant responded, "Yeah, fuck all you guys."
3. Battery of Alex R.
Officer Guzman testified that Alex R., a ward at the camp, was a member of the 18th Street gang, a rival gang of Florencia Trece. Los Angeles County Deputy Probation Officer Jesse Saldana testified that on March 2, 2010, he observed Alex R. standing with his hands behind his back. Officer Saldana observed defendant approach Alex R., whisper something to him, and hit him with a closed fist twice in the face.
4. Battery of Blake M.
Officer Guzman testified that Blake M., a ward at the camp, was a member of the Grape Street gang, another rival gang of Florencia Trece. Los Angeles County Deputy Probation Officer Noy Russell testified that on March 5, 2010, he observed defendant leap over a table at Blake M., and strike him twice with a clenched fist around the head and shoulders area. The staff responded to separate defendant and Blake M. Officer Russell asked defendant why he was fighting, and defendant responded that he was an enforcer for Florencia Trece, and he was "going to go after" anyone who "dissed" his gang.
5. Gang Evidence
Officer Guzman testified that he had training and experience regarding the Hispanic gangs at Camp Onizuka, specifically Florencia Trece. Officer Guzman opined that defendant was a member of Florencia Trece. The prosecutor asked Officer Guzman to assume, hypothetically, facts closely tracking defendant's conduct associated with resisting the executive officers, vandalism, and battery, and Officer Guzman opined that defendant's acts were committed for the benefit of, at the direction of, and in association with Florencia Trece. Based on Officer Guzman's training and experience, he testified that defendant's statements "who bang" was a call to the Hispanic gang members in the dorm, including gang members of Florencia Trece, to "back him up" against the staff and create chaos. Moises Lopez and Rafael Salas were convicted of first degree murder, and Officer Guzman opined that they were active Florencia Trece gang members.
6. Defendant's Case
Defendant did not introduce any evidence at trial.
B. Procedural Background
The District Attorney of Los Angeles County filed an amended information charging defendant with two counts of resisting an executive officer in violation of section 69 (counts 2 and 3), felony vandalism in violation of section 594, subdivision (a) (count 5), two counts of battery in violation of sections 242 and 243, subdivision (a) (counts 7-8), and misdemeanor vandalism in violation of section 594, subdivision (a) (count 9).
Count numbers 1-6 in the amended information were renumbered as counts 2-5, and 7-9, and therefore there were no counts 1, 4, and 6.
It was alleged that defendant committed the offenses for the benefit of, at the direction of, and in association with a criminal street gang within the meaning of section 186.22, subdivision (b)(1)(A), as to counts 2, 3 and 5, and within the meaning of section 186.22, subdivision (d), as to counts 7- 9. The trial court granted the prosecution's motion to amend count 5 to be a misdemeanor, amend the accompanying gang allegation pursuant to section 186.22, subdivision (d), and dismiss count 9.
The matter was tried before a jury. The jury found defendant guilty of resisting an executive officer as to counts 2 and 3, misdemeanor vandalism as to count 5, and battery as to counts 7 and 8. The jury also found true the gang allegations as to each count. The trial court sentenced defendant to a prison term of 11 years, consisting of three years on count 2 plus four years on the gang allegation, eight months on count 3 plus 16 months on the gang allegation, and eight months each on counts 5, 7 and 8.
DISCUSSION
A. CALCRIM No. 2651
Defendant contends that the trial court erred regarding counts 2 and 3 by failing to instruct the jury on a required element of the crime—specific criminal intent pursuant to CALCRIM No. 2651. The Attorney General contends that defendant forfeited his contention; the trial court did not err; and assuming that the trial court erred, it was harmless. We agree with defendant.
CALCRIM No. 2651 provides in pertinent part that, "The defendant is charged [in Count ____ ] with trying to (prevent/ [or] deter) an executive officer from performing 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 willfully and unlawfully used (violence/ [or] a threat of violence) to try to (prevent/ [or] deter) an executive officer from performing the officer's lawful duty; [¶] AND [¶] 2. When the defendant acted, (he/she) intended to (prevent/ [or] deter) the executive officer from performing the officer's lawful duty. [¶] Someone commits an act willfully when he or she does it willingly or on purpose. [¶] . . . [¶] A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct. [¶] [The defendant does not have to communicate the threat directly to the intended victim, but may do so through someone else. The defendant must, however, intend that (his/her) statement be taken as a threat by the intended victim.] [¶] [Someone who intends that a statement be understood as a threat does not have to actually intend to carry out the threatened act [or intend to have someone else do so].]"
1. Standard of Review
We review the instructions as a whole to determine whether it is reasonably likely that the jury misconstrued the instructions given. (People v. Reliford (2003) 29 Cal.4th 1007, 1013; People v. Frye (1998) 18 Cal.4th 894, 957, overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) In People v. Frye, supra, 18 Cal.4th at page 957, our Supreme Court held, "In conducting this inquiry, we are mindful that '"a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge."'"
2. The Relevant Proceedings
The amended information charged defendant in counts 2 and 3 with resisting an executive officer in violation of section 69. The district attorney alleged in counts 2 and 3 that defendant "unlawfully attempted by means of threats and violence to deter and prevent" Officers McPherson and Hall "from performing a duty imposed upon such officers[s] by law, and did knowingly resist by the use of force and violence said executive officer[s] in the performance of [their] dut[ies]."
"A Deputy Probation Officer is an executive officer." (CALCRIM No. 2652.)
At the time of defendant's conviction, section 69 stated that, "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."
After the introduction of evidence at trial, and prior to closing arguments, the trial court provided instructions to the jury. The jury was instructed regarding the elements of section 69, pursuant to CALCRIM No. 2652—using general intent rather than specific intent in CALCRIM No. 2651. The instruction given provided, "The defendant is charged in counts 2 and 3 with resisting an executive officer in the performance of that officer's duty. [¶] 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 his lawful duty; [¶] AND [¶] 3. When the defendant acted, he knew the executive officer was performing his duty."
The trial court also instructed the jury, pursuant to CALCRIM Nos. 250 and 252, that resisting an executive officer in the performance of that officer's duty as charged in counts 2 and 3 was a general intent crime. The trial court instructed the jury that in order for it to find defendant guilty of this crime defendant must intentionally do the prohibited act, "however it is not required that [defendant] intend to break the law." The jury was not instructed with CALCRIM No. 2651.
The jury was instructed with modified CALCRIM No. 250, providing in pertinent part that, "For you to find a person guilty of the crimes in this case, that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime or allegation."
The jury was also instructed with modified CALCRIM No. 252, providing in pertinent part that, "The following crime[s] [and allegation[s]] require[s] general criminal intent: Penal Code section 69, Resisting and Executive Officer as charged in Counts 2 and 3 . . . . For you to find a person guilty of [this crime] . . . , that person must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act [or fails to do a required act]; however, it is not required that he or she intend to break the law. The act required is explained in the instruction for that crime or allegation."
During closing argument, the prosecutor argued before the jury the elements set forth in CALCRIM No. 2652 for counts 2 and 3. The prosecutor stated that, "count 2 is resisting an executive officer, and that's when the defendant used physical force to resist [Officer] McPherson. Count 3 is also resisting an executive officer. That's when he resisted the second [officer] that came to help [Officer] McPherson, [Officer] Hall." The prosecutor discussed that there was evidence that after defendant initially yelled "fuck staff" and "who bang," defendant yelled it again as Officers McPherson and Hall were walking defendant to the SHU. At that point, defendant "used his elbow toward [Officer] McPherson, using force, using violence to resist him from doing his job." The prosecutor also detailed other acts by defendant of physical resistance. Upon completion of counsels' argument, the jury commenced deliberations.
During deliberations the jury sent a note to the trial court asking, "Is [sic] verbal comments considered resisting?" Outside the presence of the jury, the trial court stated, "If the jury is questioning whether or not those verbal comments that [defendant] made, quote, who bang, would that be considered resisting. I don't know. But it appears to me that the People's theory is actual force and violence, not any verbal threats." The prosecutor stated that defendant's "who bang" and "fuck staff" comments were not "the theory I was going on but if the jury believes the fuck staff was a threat, I don't think they should be precluded from finding that he's guilty on that basis."
Defendant's counsel stated that he believed the prosecutor's comments were reasonable but wanted it "to be pretty clear with the jury that verbal comments alone are not enough but there is a case that says if it's a threat to the staff, I would be comfortable with that—threat, force or violence." The trial court responded, "What I'll do is if it's okay with you, I'll formulate my response . . . not citing [Manss v. Superior Court of Mendocino County (1914) 25 Cal.App. 533] but . . . stating that verbal comments may be considered resisting as long as it is seen as a force, threat or violence." Defendant's counsel stated, "That's agreeable," and the prosecutor said he did not object. The trial court responded in writing to the jury that, "Verbal comments may be considered resisting if you consider the comments as threat of force or violence."
The court in Manss v. Superior Court of Mendocino County, supra, 25 Cal.App. 533, stated that, "[I]n section 69 an essential element is a 'threat' or 'force' or 'violence.'" (Id. at p. 535.)
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The following day, the jury advised the trial court that they had reached a verdict, but gave the trial court a note stating, "In charge 2 and 3 we are unable to agree on the association with street gang." The trial court instructed the jury to reread CALCRIM No. 1401, which concerned the street gang allegations. The jury resumed deliberations, but the jury provided the trial court with another note, this time stating that, "Using only jury instu[c]tion 1401 we still can't agree if charges 2 and 3 were performed in the benefit of a street gang." Once the jury was in the courtroom, the trial court engaged in discussions with the jury foreperson. The jury foreperson asked the trial court, "What resisting consists of? How much of what we heard?" The trial court responded, "Okay. So there's a confusion as to the underlying charge, not just the gang allegation?" The jury foreperson responded, "Yes." The foreperson stated that additional argument would help "[i]f it cleared up the question." The trial court, over the defendant's objection, instructed counsel to provide additional argument on counts 2 and 3.
During the additional argument, the prosecutor again argued before the jury the elements set forth in CALCRIM No. 2652 for counts 2 and 3. The prosecutor stated that, "The first [element] is that the defendant unlawfully used force or violence to resist that officer. As the court answered one of your further questions, that can be a verbal resistance if you find that that verbal resistance was a threat. The defendant in this case did physically and verbally resist the officer." Upon completion of counsels' argument, the jury was instructed with an amended version of CALCRIM No. 1401 and resumed deliberations. There was no request that the jury be instructed with CALCRIM No. 2651, and the jury was not so instructed. The jury reached its verdict four minutes after it resumed deliberations, finding, inter alia, defendant guilty of resisting an executive officer as to counts 2 and 3.
3. Forfeiture
Defendant's counsel did not make an objection before the trial court regarding its failure to instruct the jury with CALCRIM No. 2651. A defendant need not assert an objection to preserve a contention of instructional error however when the error affects the defendant's "substantial rights." (§ 1259; People v. Arredondo (1975) 52 Cal.App.3d 973, 978.) In this regard, "[t]he cases equate 'substantial rights' with reversible error" under the test stated in People v. Watson (1956) 46 Cal.2d 818—whether the error resulted in a miscarriage of justice. (People v. Arredondo, supra, 52 Cal.App.3d at p. 978.) "'Ascertaining whether claimed instructional error affected the substantial rights of the defendant necessarily requires an examination of the merits of the claim—at least to the extent of ascertaining whether the asserted error would result in prejudice if error it was.' [Citation.]" (People v. Ramos (2008) 163 Cal.App.4th 1082, 1087.) As discussed post, defendant's substantial rights were affected, and therefore we conclude defendant did not forfeit his contention.
4. Error
Section 69 "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." (In re Manuel G. (1997) 16 Cal.4th 805, 814.) "These two offenses have different elements." (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530.) The first way in which section 69 may be violated requires the specific intent to deter or prevent the officer from performing his duty, and the second way merely requires general criminal intent. (People v. Hines (1997) 15 Cal.4th 997, 1060-1061; People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1420-1421; People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9.) "The two ways of violating section 69 have been called 'attempting to deter' and 'actually resisting an officer.' [Citation.]" (People v. Lacefield (2007) 157 Cal.App.4th 249, 255.)
Defendant was charged in counts 2 and 3 with both ways in which section 69 could be violated, but the jury was instructed only on the second type of offense pursuant to CALCRIM 2652—resisting by force or violence requiring general criminal intent. Through the conclusion of the first closing arguments, the prosecutor's theory of defendant's violation of section 69 was based on the resisting by force or violence theory.
The prosecutor's theory of defendant's violation of section 69 changed however to include the first way in which section 69 may be violated—attempting by "threats" to deter or prevent an officer from performing a duty imposed by law, requiring specific criminal intent. During deliberations, the jury sent a note to the trial court asking whether verbal comments may be considered resisting the officers. The prosecutor told the trial court that although his theory of the case had been defendant's use of physical force and violence, the jury should not be precluded from finding defendant guilty on counts 2 and 3 based upon his statements. The trial court responded to the juror's question by stating that the verbal comments may be considered resisting if they considered the comments as a "threat of force or violence." The trial court never instructed the jury that in order for there to be a violation of this prong of section 69, defendant must have the specific intent by a threat to deter or prevent an officer from performing a duty. During the additional argument the prosecutor told the jury that there "can be a verbal resistance if you find that that verbal resistance was a threat. The defendant in this case did physically and verbally resist the officer." Of course, verbal activity does not seem to constitute "resisting by force or violence"—the second prong in section 69, but rather suggests a "threat . . . to deter or prevent an officer"—the first prong of section 69. Four minutes after it resumed deliberations the jury found defendant guilty of resisting an executive officer as to counts 2 and 3.
By the express terms of section 69 and CALCRIM No. 2651, defendant's verbal threat of force or violence would violate the first type of offense under section 69, which requires the use of "force or violence." (E.g., People v. Patino (1979) 95 Cal.App.3d 11, 28 [affirming the defendant's conviction for attempting to deter and prevent the executive officers from performing their duties by means of threats and violence because defendant "was yelling, screaming and advancing on the officers" in a threatening manner, and "ordered the officers to leave the scene"].) Defendant's verbal threat would not violate the second type of offense under section 69, which requires that defendant use "force or violence," and the Attorney General does not cite to any authority that it would.
Failure to instruct the jury on an element of the charged offense, thereby relieving the prosecution of its burden to prove each element beyond a reasonable doubt, "violates the defendant's rights under both the United States and California Constitutions." (People v. Flood (1998) 18 Cal.4th 470, 480.) The trial court erred by failing to instruct the jury that they could convict defendant of resisting an executive officer in violation of section 69 based on verbal comments amounting to a threat only if defendant had the requisite specific criminal intent.
5. Harmless Error
The Attorney General contends that if the trial court erred, the error was harmless. Defendant argues we should apply the standard of Chapman v. California (1967) 386 U.S. 18, 24 [harmless beyond a reasonable doubt], and determine that the error was not harmless. Defendant argues that the error was not harmless even under the standard of People v. Watson, supra, 46 Cal.2d at p. 837 [more favorable outcome for defendant reasonably probable absent error]. We conclude that the error was not harmless under either standard.
We cannot say that a reasonable juror would conclude without being instructed with CALCRIM 2651 that defendant possessed the intent to prevent or deter the officers from performing their duties when yelling "who bang, motherfucker" as the officers began walking defendant to the SHU. Although the prosecution introduced evidence at trial that those words were a call to other Hispanic gang members in the dorm to "back [defendant] up" against the staff and create chaos, defendant spoke those same words moments before the officers were present.
The Attorney General argues that the error was harmless because "section 69 . . . declares to be a crime . . . the willful and unlawful attempt to deter or prevent an executive officer from performing his duty. Thus, by its terms, Penal Code section 69 describes the requisite intent." The jury however was not instructed on the entirety of section 69. The jury was instructed regarding section 69 pursuant to CALCRIM No. 2652 only, which concerns the second offense— resisting by means of force or violence, defined as a general intent crime. The jury was not instructed with CALCRIM No. 2651, which concerns the first offense of section 69— an unlawful attempt to deter or prevent by means of a threat or violence, defined as a specific intent offense. Contrary to the Attorney General's contention, the jury was not provided with instruction regarding the requisite intent for defendant's verbal threat.
The Attorney General also argues that the error was harmless because "even before the court had the parties reargue counts 2 and 3, the jury had reached verdicts on the substantive counts." After the trial court advised the jury that verbal comments may be considered resisting the officers if they constitute a threat of force or violence, and before the parties reargued counts 2 and 3, the jury advised the trial court that they had reached a verdict. The jury at that time however did not provide the trial court with its verdict forms. Also before the parties reargued counts 2 and 3, the jury foreperson asked the trial court how much of what the jury heard constituted resisting an officer, and the trial court determined that the jury was confused as to the underlying offense. Contrary to the Attorney General's contention, the jury reached its verdict, providing the trial court with their completed verdict forms, after the parties reargued counts 2 and 3.
The jury appeared confused as to the section 69 allegation, until it was instructed with defendant's oral yells. The jury only required four minutes of deliberation to return their verdict against defendant after the trial court advised the jury that they could consider verbal comments amounting to a threat of force or violence as constituting resisting the officers, and after the parties reargued counts 2 and 3. We cannot conclude that the jury did not rely solely upon defendant's comments, whether or not he harbored the requisite specific intent. Accordingly, the error was not harmless.
B. Other Contention
Because we reverse the judgment regarding defendant's convictions on counts 2 and 3 for the trial court's failure to instruct on specific intent, we do not reach defendant's contention that the trial court erred by failing sua sponte to give the jury a unanimity instruction regarding the two counts.
C. Other Counts
Defendant does not challenge his conviction based on the other counts.
DISPOSITION
The judgment is reversed as to counts 2 and 3, and affirmed as to counts 5, 7, and 8. The matter is remanded to the trial court.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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MOSK, J.
I concur:
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ARMSTRONG, Acting P. J.
J. KRIEGLER, Concurring.
I concur in the judgment. The error in this case is not in the trial court's failure to instruct under Judicial Council of California Criminal Jury Instructions (2010-2011) CALCRIM No. 2651. The critical error was the court's incorrect instruction during deliberations, in response to a jury question, that "[v]erbal comments may be considered resisting if you consider the comments as a threat of force or violence." Contrary to the court's instruction, a verbal threat constitutes neither force nor violence. The error was prejudicial because the prosecutor seized on the court's instruction during reopened jury argument and advised the jury it could convict defendant of resisting an executive officer if it found defendant made a verbal threat.
Penal Code section 69 can be violated in two distinct ways, both of which were in the charging language of the information. The first, which requires specific intent, involves that portion of section 69 in which a defendant attempts to prevent an executive officer from performing his/her duty. (See CALCRIM No. 2651.) The second, which is a general intent crime, involves resisting an executive officer by use of force. (See CALCRIM No. 2652.)
This case was tried only on the latter theory of Penal Code section 69, and the trial court properly instructed under CALCRIM No. 2652. The court had no obligation to instruct under CALCRIM No. 2651, as that was not the basis of the prosecution. The error here is not in the choice of instruction, but in the clearly erroneous response to the jury question as to the resisting an executive officer charge. A verbal threat is not sufficient to constitute resisting an executive officer by the use of force under the plain language of the statute. The court erred in so instructing and the prosecutor's reliance on that erroneous instruction impacted the jury in a way which must be considered prejudicial under both the federal and state Constitutions.
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KRIEGLER, J.