Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB802177. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Pamela Ratner Sobeck and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant Monica Monroe guilty of assaulting a law enforcement officer with a deadly weapon. (Pen. Code, § 245, subd. (c).) The trial court sentenced defendant to state prison for a term of four years. Defendant contends that the trial court erred by excluding evidence of her mental disorder. Defendant also contends that the trial court erred by relying on elements of the offense when sentencing her to the midterm sentence. We affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
A. FACTS
On May 18, 2008, City of San Bernardino Police Officer Thornburg was patrolling the eastern portion of the city. At approximately midnight, Demetrius, defendant’s husband, flagged down Officer Thornburg. Demetrius told Officer Thornburg that defendant threw him out of the apartment that they share, and he asked the officer to speak to defendant. After speaking to the officer Demetrius returned to his car, and the officer and Demetrius drove to the apartment complex where defendant and Demetrius resided. Demetrius and defendant resided in a bottom floor apartment next to a stairwell. Officer Thornburg knocked on the door of the apartment that defendant shared with Demetrius. While the officer was at the door, Demetrius sat at the bottom of the stairwell, essentially next to the officer. After several knocks, defendant opened the apartment door, but did not open the security/screen door.
Upon opening the apartment door, defendant said to Officer Thornburg, something to the effect of, “what the hell are you doing here.” Defendant appeared agitated and upset. Officer Thornburg was wearing a uniform, and he identified himself as a police officer. The officer told defendant that Demetrius had flagged him down, and that it was unlawful to force Demetrius out of the apartment, because he was a resident of the apartment. Defendant said that she did not believe that Demetrius stopped the officer. Defendant told the officer that the officer was at the apartment in an attempt to harass her. Officer Thornburg told defendant that Demetrius was seated next to him, and defendant opened the security/screen door.
Defendant and Demetrius argued with one another, as defendant leaned out of the apartment door. Officer Thornburg explained to defendant that she could not remove Demetrius from the house. Defendant said to the officer, something to the effect of, “well, what are you going to do about it?” Officer Thornburg believed that the situation was escalating, so he radioed for assistance. Defendant said, “oh, you’re going to call for more units, ” and she ran back into the apartment. Officer Thornburg placed his foot in the path of the security/screen door to prevent it from closing completely, in order to prevent defendant from barricading herself inside the apartment.
While inside the apartment, defendant grabbed a steel weightlifting bar. The bar was approximately three and one-half feet long, and it weighed approximately 25 pounds. Defendant held the bar above her shoulder, near her head, with both hands on the bar. Defendant turned to face Officer Thornburg. Officer Thornburg unholstered his gun and pointed it at defendant. Officer Thornburg told his dispatcher that he was holding a person at gunpoint. From the doorway area, Officer Thornburg asked defendant to drop the weightlifting bar. Defendant was approximately 10 to 12 feet inside the apartment. Defendant walked towards the officer; Officer Thornburg walked backwards down the walkway and into the parking lot, maintaining the 10 to 12 foot distance between himself and defendant. While walking, Officer Thornburg repeatedly commanded defendant to drop the weightlifting bar, and he told her that he could help her to “deal with the situation.”
Defendant did not drop the weightlifting bar, and she continued to advance on the officer while looking directly at him. When Officer Thornburg initially began backing through the parking lot, he was moving in a southerly direction. As defendant continued to advance on Officer Thornburg, they “turned into an east-west direction.” Officer Thornburg continued to ask defendant to drop the bar. Defendant said, “no, you’re going to give me one.” Officer Thornburg interpreted defendant’s statement as an attempt to provoke the officer into shooting her. Demetrius had moved from the stairwell, and was standing in the parking lot. Demetrius told Officer Thornburg that defendant “was schizophrenic and off her medication and that [he and the officer] could take her.” Officer Thornburg did not want to risk Demetrius being injured, so he refused Demetrius’s offer.
As defendant continued to advance, Officer Thornburg felt pinned as they approached an area of the parking lot with vehicles parked near a gate. As defendant stood approximately eight to 10 feet away from the officer, she took a lunging step towards the officer, while moving the bar backwards, as though she were charging at the officer. Officer Thornburg felt that defendant was threatening his life. Officer Thornburg waved at Demetrius to move, and Demetrius ran. When defendant moved within five feet of Officer Thornburg, he fired four rounds at defendant. Defendant was struck by one bullet, she fell to the ground, and the bar fell from her hands. The incident was captured on video by the apartment complex’s surveillance cameras.
After the shooting, Officer Thornburg saw that Officer Prinz was standing near defendant and the weightlifting bar. Officer Prinz stayed with defendant, while Officer Thornburg went to check on Demetrius, who had returned to the apartment. Demetrius was not injured by the gunshots.
B. PROCEDURAL HISTORY
The first amended information charged defendant with (1) assaulting a peace officer with a deadly weapon (§ 245, subd. (c)); and (2) resisting an executive officer (§ 69).
The prosecution filed a motion in limine requesting that evidence of defendant’s mental disorder be excluded from trial. The prosecution argued that the evidence was irrelevant because assault with a deadly weapon (§ 245, subd. (c)) is a general intent crime.
Defendant’s trial attorney argued that the evidence of defendant’s mental illness was admissible. Defendant’s trial attorney contended that the evidence was relevant because a law enforcement officer must be lawfully performing his duties, in order for a defendant to be found guilty of assaulting a police officer, and Officer Thornburg was not lawfully performing his duties when he pointed his gun at defendant, who was schizophrenic. Additionally, defendant’s trial attorney argued that the mental illness evidence was relevant to “whether there was intent to batter and whether the defendant [had] actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another.” Further, defendant’s trial attorney argued that resisting an executive officer (§ 69) is a specific intent crime, which made evidence of defendant’s mental state relevant at trial.
The trial court concluded that the first offense listed in section 69 is a specific intent crime, but the second offense is a general intent crime. Section 69 reads, “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....” The prosecution argued that defendant did not attempt to prevent Officer Thornburg from performing his duties, rather, she knowingly resisted Officer Thornburg. The trial court pointed out that the first amended information alleged that defendant attempted to prevent Officer Thornburg from performing his duties. The prosecutor offered to file a second amended information, which would remove the “attempt” language. The trial court concluded that if the “attempt” language were removed, then defendant would only be charged with general intent offenses.
Defendant’s trial attorney argued that even if the information were amended, the evidence should be admitted because it would prove that Officer Thornburg was not lawfully executing his duties when he used deadly force against defendant. Defendant’s trial attorney planned to offer the testimony of a doctor who would testify about defendant’s mental illness. The prosecution argued that Officer Thornburg was not informed of defendant’s mental illness until the situation had escalated, and at that point, the officer had limited options for dealing with defendant. Further, the prosecutor argued that defendant was not raising an insanity defense, nor was defendant’s competence being questioned.
The trial court concluded that if the prosecution filed a second amended complaint, which only alleged the second offense within section 69, then there would only be two general intent charges, and therefore the evidence of defendant’s mental state would not be admissible (§ 28, subd. (a)). The court noted that there was not a problem with Demetrius’s statement to Officer Thornburg being admitted, regarding defendant suffering from schizophrenia; however, expert testimony about the use of force on mentally ill individuals would need to be limited. The trial court concluded that the experts could testify about the law enforcement standards for use of force, “[s]taying away from whether or not there w[ere], in fact, mental health issues.” The prosecution filed a second amended information removing any specific intent offenses.
San Bernardino County Sheriff’s Deputy Chief Fonzi worked at the Sheriff’s Academy training law enforcement officers, and was called as a witness for the People. Deputy Chief Fonzi testified that a chapter of the law enforcement officer training manual addressed how to handle situations involving mentally ill individuals. Deputy Chief Fonzi testified that the chapter instructs officers, who are involved in a non-threatening situation with a mentally ill person, to move slowly, eliminate emergency lights and sirens, use a calm voice, and be concise. Deputy Chief Fonzi opined that Officer Thornburg had the right to use deadly force against defendant, due to the threat she presented to the officer.
Retired Los Angeles County Sheriff’s Lieutenant Clark testified as a defense witness. Lieutenant Clark worked in a unit that focused on investigating and apprehending career criminals. As a lieutenant, Clark trained new officers. Lieutenant Clark confirmed that a chapter of the law enforcement officer training curriculum is devoted to techniques for addressing situations involving people who suffer from mental illness. Lieutenant Clark opined that Officer Thornburg’s use of deadly force was unreasonable and unnecessary. Lieutenant Clark testified that Officer Thornburg exacerbated the situation with defendant by confronting her at the door and pointing a weapon at her. Lieutenant Clark testified that it is important to be calm and reassuring when interacting with people suffering from a mental illness.
Prior to the prosecution calling Demetrius as a witness, the prosecution requested that the trial court admonish Demetrius in regard to testifying about defendant’s mental illness. The trial court admonished Demetrius not to discuss defendant’s mental illness, in any way other than the statements he made to Officer Thornburg and/or Officer Prinz.
When discussing jury instructions, defendant’s trial attorney objected to the trial court instructing the jury that Demetrius’s statement to Officer Thornburg, regarding defendant’s schizophrenia, was admitted for the limited purpose of showing that Officer Thornburg might have been aware of defendant’s alleged mental illness, but not for the truth that defendant actually was mentally ill. Defendant’s trial attorney argued that the instruction should be modified to reflect that the evidence may also be considered for the limited purpose of determining whether Officer Thornburg was lawfully performing his duties based upon his knowledge of defendant’s mental illness. The trial court noted the objection and commented that defendant’s trial attorney could argue his point to the jury “within the framework of th[e] instruction.”
DISCUSSION
A. EVIDENCE
Defendant contends that the trial court erred by excluding evidence of her diagnosis of schizophrenia and evidence that she was not taking her medication. Defendant contends that the evidence was relevant to proving that (1) Officer Thornburg was not lawfully performing his duties; (2) defendant was unaware that her actions were likely to result in the application of physical force against the victim (§ 245, subd. (c)); and (3) defendant did not knowingly resist Officer Thornburg (§ 69). We disagree with defendant’s contention.
In their respondent’s brief the People focus on how the evidence of defendant’s mental condition was irrelevant to the element of intent, because the charged offenses were general intent crimes. We do not address the relevance of the evidence in regard to the element of intent, because, while it was the People’s argument below, it was not defendant’s trial court argument.
1. LAWFUL PERFORMANCE OF DUTIES
We first address defendant’s contention that the evidence of her mental illness was relevant to proving that Officer Thornburg was not engaged in the lawful performance of his duties.
In order for a defendant to be found guilty of resisting an executive officer, it must be proven that the officer was acting “in the performance of his duty.” (§ 69.) In order for a defendant to be found guilty of assaulting a peace officer with a deadly weapon, it must be proven that the officer was “engaged in the performance of his or her duties.” (§ 245, subd. (c).) California’s longstanding rule is that a defendant cannot be convicted of a crime against a peace officer who was engaged in the performance of his or her duties, unless the officer was acting lawfully at the time of the alleged offense. (In re Manuel G. (1997) 16 Cal.4th 805, 815.) Both of the charged offenses required that Officer Thornburg be engaged in the performance of his duties; therefore, the lawfulness of the officer’s conduct forms part of the corpus delicti of the offenses in this case. (Ibid.)
In Graham v. Connor (1989) 490 U.S. 386, 388-389, Graham sought to recover damages for injuries allegedly sustained when law enforcement officers used physical force against him during an investigatory stop. Graham was diabetic, and was suffering from a “‘sugar reaction’” at the time of the stop. The law enforcement officers involved in the stop did not initially believe that Graham was diabetic, and thought that he was drunk. (Id. at p. 389) Somehow, during the stop, Graham sustained a broken foot, cuts, and bruises. Graham alleged that the officers used excessive force during the stop (42 U.S.C.A. § 1983). (Graham, at p. 390) The United States Supreme Court, in its analysis, held “that all claims that law enforcement officers have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” (Id. at p. 395.) Further, “[t]he ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. [Citation.]” (Id. at p. 396.)
In the instant case, the trial court limited the evidence regarding defendant’s mental illness to the information available to Officer Thornburg at the time of defendant’s arrest, i.e., Demetrius’s statement that defendant was schizophrenic and not taking her medication. Any further evidence regarding defendant’s mental condition was not available to Officer Thornburg at the time of the arrest, and therefore, it was not relevant because it could not be used to judge the reasonableness of Officer Thornburg’s actions. In other words, the reasonableness of the force used by Officer Thornburg can only be judged by information available to the officer at the time of defendant’s arrest; therefore, testimony from mental health professionals, and testimony about defendant’s mental history, would not be relevant to determining whether Officer Thornburg used reasonable force. Accordingly, the trial court did not err by excluding the evidence.
2. APPLICATION OF FORCE
Next we address defendant’s contention that evidence concerning her mental illness was relevant to proving she was unaware that her actions were likely to result in the application of physical force against the victim. (§ 245, subd. (c).)
Section 28 provides, “Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence of mental disease, mental defect, or mental disorder is admissible solely on the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.” (Italics added.)
Assault is a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 788.) In order to prove that a defendant had the required general intent, a prosecutor must show that the defendant was “aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from [her] conduct.” (Ibid.) In other words, the issue for the mens rea element of assault is, did the defendant “‘actually know[] those facts sufficient to establish that [her] act by its nature will probably and directly result in physical force being applied to another.’ [Citation.]” (People v. Chance (2008) 44 Cal.4th 1164, 1169.) As set forth ante, evidence of mental illness is not admissible to negate a defendant’s capacity to form a particular mental state, including knowledge. Consequently, the trial court did not err by excluding the evidence of defendant’s mental illness, because it was inadmissible for purposes of showing that she did not know that her actions were likely to result in the application of physical force against the victim.
In support of her argument, defendant cites People v. Miller (2008) 164 Cal.App.4th 653. In Miller, the appellate court concluded that the trial court erred when it told the jury that “‘there is no “awareness” element’” in the offense of assault. (Id. at p. 661.) We do not find defendant’s reliance on Miller to be persuasive, because it is not disputed that the crime of assault includes the element of intent.
3. KNOWINGLY RESISTING
Although defendant was acquitted of knowingly resisting an executive officer (§ 69), she contends that the evidence concerning her mental illness should have been admitted to negate the knowledge element. As set forth ante, evidence of a defendant’s mental condition is not relevant to a defendant’s capacity to form a particular mental state, including knowledge. (§ 28.) Consequently, we conclude that the trial court did not err by excluding the evidence related to defendant’s schizophrenia.
Next, defendant notes that section 69 contains two offenses, one of which is a specific intent offense, i.e., attempting to deter an executive officer from performing any duty. Defendant contends that the evidence of her schizophrenia should have been admitted because it was relevant to the specific intent alleged within the charge of attempting to deter an executive officer (§ 69). We note that the prosecutor filed a second amended information, which removed the attempt allegation. Consequently, we are not persuaded that the trial court erred, because defendant was not charged with a specific intent offense.
B. SENTENCING
1. FACTS
At the sentencing hearing, the prosecution informed the trial court that at the time of the offense in the instant case, defendant was on active felony probation for elder abuse.
The trial court found that the nature and circumstances of the offense in the instant case were serious, because (1) the offense almost resulted in defendant’s death; (2) defendant attempted to strike Officer Thornburg; and (3) defendant was armed with a deadly weapon. The trial court noted defendant’s “prior convictions as an adult are numerous and... increasing [in] seriousness, and she was on a grant of probation at the time” of the crime in the instant case. Additionally, the trial court remarked that although defendant indicated to the probation officer that she should have dropped the weightlifting bar, defendant has “not shown any particular remorse and, unfortunately, there is a likelihood that there may be future offenses.”
In regard to mitigation, the trial court considered that defendant suffers from “a serious mental illness, but it is not sufficient to amount to a legal defense.” However, the trial court commented that defendant has had sufficient experience with her mental illness to know that “she is supposed to be taking her medication.” The trial court concluded, “[T]here’s no significant basis to use the upper or the lower term. The middle term is appropriate.”
2. ANALYSIS
Defendant contends that the trial court erred by relying on elements of the offense when sentencing her to the midterm. We disagree.
We review the trial court’s sentencing decision for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) “Our review is confined to the correctness or incorrectness of the trial court’s ruling, not the reasons for its ruling. [Citations.]” (People v. Dimitrov (1995) 33 Cal.App.4th 18, 27.)
When a trial court selects the upper, middle, or lower term of imprisonment, the court “may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision.” (Cal. Rules of Court, rule 4.420(b); § 1170, subd. (b).)
As noted by the trial court, the mitigating factor was defendant’s mental illness; defendant’s schizophrenia diagnosis was confirmed by a letter from defendant’s doctor. However, as found by the trial court, defendant had suffered from schizophrenia since at least 2005, which was long enough for defendant to know that she needed to take her medications. As a result, defendant’s mental illness does little to mitigate her offense, because defendant should have been taking her medication. In other words, we conclude that the trial court did not err by sentencing defendant to the middle term, rather than the low term, because there were no significant mitigating factors.
Defendant contends that the trial court erred by relying on defendant’s own injuries and her use of a deadly weapon as factors in aggravation. Defendant argues that it is an injustice to sentence a mentally ill individual, who has been shot by law enforcement, to the middle term, rather than the low term. We do not find defendant’s arguments persuasive because it was reasonable for the trial court to conclude that there were no factors in mitigation, because defendant should have known that she needed to take her medication.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P. J., KING, J.