Opinion
A158983
09-24-2021
THE PEOPLE, Plaintiff and Respondent, v. MARK STEVEN MORA, Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. 51907922
SANCHEZ, J.
A jury found appellant Mark Steven Mora guilty of using force or violence to resist an executive officer in the performance of their duty in violation of Penal Code section 69 and found true a special allegation for use of a deadly weapon. Appellant was sentenced to two years and four months in state prison. He contends on appeal that the evidence was insufficient to support his conviction because the police officers used excessive force to effectuate his arrest. Appellant also argues that the trial court erred when it failed to instruct the jury on the lesser included offense of simple assault. We affirm.
All undesignated statutory references are to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
In April 2019, an information was filed charging appellant with assault with a deadly weapon upon a police officer (§ 245, subd. (c); count one), and resisting an officer by force or violence (§ 69, count two). The information further alleged that appellant used a deadly weapon during the commission of count two (§ 12022, subd. (b)(1)).
A. Evidence Presented at Trial
On February 25, 2019, Pittsburg Police Department Corporal Nicole Riddick was dispatched to an address in Pittsburg to investigate a report that appellant had assaulted his father with a large knife and was stabbing the locked front door of his father's house. No physical injuries were reported. Corporal Riddick was informed that appellant might be under the influence. She knew him from nonviolent prior contacts involving his family. Based on the report of the assault, she believed there was probable cause to detain and arrest appellant.
Corporal Riddick and her partner were both in uniform and were driving in a marked police vehicle. As they approached the address, the officers observed appellant walking down a nearby street in a residential area. They exited their vehicle and Corporal Riddick called out to him. He stopped to turn and look back at the officers, and then turned away and continued walking away from them. Corporal Riddick again called out to appellant, telling him to stop and that they needed to talk to him. He stopped and turned towards the officers. As they approached him, he reached into his right front pants pocket and pulled out a “folded large gold knife.” He was approximately 15 to 20 feet away from the officers.
Three officers arrived as back up and seven other officers soon came to assist. Several of the officers pulled out their firearms and Corporal Riddick pulled out her taser. Corporal Riddick testified that the situation had become dangerous because a knife can be a deadly weapon, even from a distance. The officers responded to this threat by pulling out their service weapons.
Corporal Riddick was a member of the police department's crisis negotiation team. She and other officers gave repeated commands for appellant to drop the knife, but he did not do so. Instead, appellant repeatedly folded and unfolded his knife, sometimes holding the knife in a stabbing position, and waving his arms around and making jabbing motions. The officers became concerned over appellant's erratic and agitated behavior. He folded the knife, put it in his pocket, only to immediately take it back out again and hold it in a fighting position. The environment became very chaotic because several officers were speaking to appellant at the same time and a canine officer's dog was excited and barking.
Corporal Riddick tried to use her crisis negotiation training to get appellant to put the knife down. She sought “to let him know why we were stopping him, that we needed to talk to him. We didn't want to hurt him. Please put the knife down, et cetera. Using manners, using commands.” For approximately eight minutes, officers attempted to de-escalate the situation by repeatedly using verbal commands to drop the knife and telling appellant “[w]e don't want to hurt you.”
Corporal Riddick found appellant's behavior to be abnormal. She was concerned that appellant might be under the influence because he could not stand still, was not listening to the officers, had bloodshot eyes, and was speaking rapidly and seemed “amped up.” Appellant was also saying things that did not make much sense, including that the officers did not have the right to detain him, that he could use the Fourth Amendment, that they needed “to use [their] PR skills, ” and that he was afraid he was being kidnapped. Appellant told the officers that he needed the knife for self- defense and would put it away only if they put down their weapons first. According to Officer Tamhra Towner, appellant said he was scared and was confused about why he had been stopped. He gestured at the weapons that were being aimed at him and said he did not feel safe.
Appellant did not yell at the officers or threaten to hurt them, and he did not charge at the officers with the knife. Nevertheless, Corporal Riddick believed he was aggressively resisting their commands because he was not complying with the officers' requests to drop the knife and because he kept folding and unfolding the knife. Although appellant asked the officers multiple times why they were detaining him, officers did not explain that he was under arrest for the reported assault.
After approximately eight minutes of attempting to calm the situation and voluntarily disarm appellant, officers resorted to using force. Appellant was informed that if he did not drop the knife, the officers would use a 40-millimeter foam dart device on him. Under police department policy, the 40-millimeter foam dart represents an intermediate level of force that is used in situations where a subject is potentially dangerous or violent. The device is used to gain compliance without having to “go hands on” a suspect. The projectile struck appellant's abdomen area, but he had no reaction, possibly because he was wearing a puffy jacket.
Corporal Riddick then deployed her taser after another officer warned appellant that he was going to be tased. The taser was also ineffective as one of the darts bounced off his puffy jacket. Although Corporal Riddick had not been aiming for his head, the other dart struck appellant in the left temple area. Because the second dart failed to make contact, the taser did not work. Appellant did not appear to be in any pain. He reached up with his hands, grabbed the wire attached to the dart and yanked it out saying, “Are you serious?” He proceeded to empty his pockets, saying something to the effect that they would see he had nothing else on him. The officers resumed giving verbal commands, concerned that he could have weapons underneath his jacket.
The officers warned appellant that they would again resort to forceful measures, but he refused to comply and repeated that he was not going to drop the knife. After four minutes of verbal commands, an officer shot appellant with another 40-millimeter foam dart device, to no effect. Officer Towner immediately deployed her taser, but it also was ineffective because the darts did not make contact. Seconds later, the canine officer unleashed her dog who bit appellant on his left elbow area. Appellant spun around with his back to the officers. Corporal Riddick saw him raise the knife as if he were going to stab the dog. Two other officers who testified at trial stated that they did not see appellant try to stab the animal.
As soon as appellant turned his back, Officer Benedict Jemerigbe ran up and tackled him from behind, taking him to the ground. Someone yelled to watch out for the knife. Appellant was thrashing violently, kicking and waving his arms. His right hand came across his body with the blade still exposed. Officer Jemerigbe felt a sharp pain and realized he had been stabbed in the back of his neck. He later received two sutures at the hospital.
At least eight officers attempted to subdue appellant by piling on his arms and legs. Appellant still had the knife in his hand with the blade exposed. Two officers grabbed his arm, pinned it to the ground, and forced him to let go of the knife by prying his fingers off the weapon. One officer punched appellant in the head to distract him so that the knife could be removed. Appellant was combative and struggling, and it took the officers at least 20 seconds to get his hands behind his back to handcuff him. A wrap device was used to secure his legs. From start to finish, the entire incident lasted 12 minutes. During Corporal Riddick's testimony, body camera and dash camera video were played for the jury.
Video from other officers' body cameras was shown to the jury during trial. These video exhibits were not submitted as part of the record on appeal. However, the appellate record includes transcripts of the audio from the officers' body worn camera video.
Corporal Riddick testified that during the encounter she considered most, if not all, of the factors that officers are instructed to take into account in determining the reasonableness of force, including the immediacy of the threat and the conduct of the individual being confronted. Officers are permitted to use whatever force is reasonable and necessary to effectuate an arrest. Corporal Riddick testified that the level of force used on appellant never exceeded the intermediate level of force. The officers waited before moving in on him, but they eventually had to act “[b]ecause the threat was very real and imminent.”
Appellant relied on the state of the evidence and did not present any of his own evidence.
B. Jury Verdict and Sentencing
On August 20, 2019, the jury found appellant guilty of resisting an executive officer and found the deadly weapon allegation to be true. The jury was unable to reach a verdict on count one, and the trial court declared a mistrial as to that count. The People dismissed count one at sentencing.
On September 20, 2019, appellant was sentenced to the low term of one year and four months on the conviction. The court imposed a consecutive one-year term on the deadly weapon enhancement, resulting in an aggregate sentence of two years and four months in state prison. This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Appellant contends there was insufficient evidence to support his conviction for resisting an executive officer because no reasonable juror could have found that the police officers did not use excessive force to effectuate his arrest. We disagree.
When the sufficiency of evidence is challenged on appeal, we must review “ ‘the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.' ” (People v. Davis (2009) 46 Cal.4th 539, 606.) “We do not reweigh the evidence or revisit credibility issues, but rather presume in support of the judgment the existence of every fact that could reasonably be deduced from the evidence.” (People v. Alvarez (2009) 178 Cal.App.4th 999, 1004.) “ ‘Before the judgment of the trial court can be set aside for the insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is there sufficient substantial evidence to support the verdict of the [finder of fact].' ” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Violation of section 69 may be established under two separate theories. “The first way of violating section 69 ‘encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future.' [Citation.]” (People v. Smith (2013) 57 Cal.4th 232, 240, italics omitted.) “The second way of violating section 69 expressly requires that the defendant resist the officer ‘by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense.” (Ibid.) When excessive force is used in making what otherwise is a lawful arrest, the arrest becomes unlawful. (People v. Sibrian (2016) 3 Cal.App.5th 127, 133.) Appellant was prosecuted under this second theory.
The jury was given a pattern instruction on the use of excessive force as it pertains to arrests and detentions under California law. Under CALCRIM No. 2670, the jury was instructed that “a peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention.” The jury was also instructed that “[t]he People have the burden of proving beyond a reasonable doubt that [the officers] were performing their duties as peace officers. If the People have not met this burden, then you must find the defendant not guilty of assault on a peace officer with a deadly weapon and/or resisting an executive officer.”
“The use of excessive force by law enforcement officers is analyzed under the Fourth Amendment's objective reasonableness requirement for a seizure of the person.” (People v. Brown (2016) 245 Cal.App.4th 140, 157 (Brown), citing Graham v. Connor (1989) 490 U.S. 386 (Graham).) “Under Graham, … the question in a case such as this is whether the amount of force the officers used in making the arrest was objectively unreasonable given the circumstances they faced.” (Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 763 (Allgoewer).) Determining whether the force used is reasonable “requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” (Graham, at p. 396.) Furthermore, “ ‘[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. … The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments - in circumstances that are tense, uncertain, and rapidly evolving - about the amount of force that is necessary in a particular situation.' ” (Allgoewer, at p. 762.)
We conclude that substantial evidence supports the jury's implicit finding that the officers were lawfully performing their duties and did not use excessive force in arresting appellant. At the initial point of contact, Corporal Riddick and her partner called out to appellant to stop because they needed to speak with him. Appellant does not dispute that the officers had probable cause to arrest him based on his reported assault of his father. As the officers approached appellant, he then pulled out “a folded large gold knife.” The record thus establishes that appellant was the initial aggressor and could not have been acting in self defense when he brought out the knife. Indeed, at this point, the officers had not employed any force, let alone excessive force, on appellant.
Appellant asserts that the knife was “legal” and characterizes it as a mere “pocketknife.” The record belies this assertion. As the trial court stated at sentencing: “[T]his is not a pocket knife that he's pulling out, and we didn't spend a whole lot of time in front of this jury, but this is not a pocket knife. This is a - it's not a machete, but it's a knife with a significant blade with a hook on it. So this isn't pulling out your average hunting/camping knife.”
The officers reasonably responded to appellant's unprovoked decision to display a deadly weapon by pulling out their tasers and firearms. As Corporal Riddick testified, the situation became extremely dangerous when appellant pulled out his knife. Any time a person brandishes an “edged weapon” there is the potential for loss of life. A knife can be thrown or used as a stabbing weapon at close quarters. Compounding the dangerous situation was appellant's erratic behavior and refusal to respond to the officers' instructions. Appellant's behaviors reasonably suggested that he was under the influence, as he repeatedly folded and unfolded the knife, waved the blade around, and spoke rapidly and at times incoherently. He thus presented it as an unpredictable, immediate threat, and the officers' reasonable belief that there was a high potential for violence finds ample support in the record.
Before any force was employed, officers sought to persuade appellant to put down the knife with verbal commands such as “put the knife down, please drop the knife” and “[w]e don't want to hurt you.” These efforts to de-escalate the situation lasted for eight minutes, to no avail. Appellant was then warned that force would be used if he did not put down the knife. He refused to comply. After unsuccessfully deploying the 40-millimeter foam dart and a taser, officers attempted verbal persuasion for another four minutes. Only after appellant's continued refusal to comply did they shoot appellant with another 40-millimeter foam dart, attempt to tase him, and released the canine. What the record demonstrates is that police officers resorted to intermediate force only after previous attempts at de-escalation had failed, and only utilized intermediate force a second time when previous attempts were unsuccessful. Even with these efforts to contain the situation, Officer Jemerigbe was sliced on the neck by appellant's knife, and eight officers were required to pin down and subdue appellant before he released his weapon.
Appellant describes the non-lethal use of projectiles and tasers as “deadly force.” While these weapons can inflict serious injuries under certain circumstances, in this case they had virtually no effect on appellant as the devices were thwarted by the large puffy jacket he was wearing. And in spite of being struck by these weapons, appellant persisted in refusing to comply with the officers' requests to put down the knife.
As the trial court observed at sentencing, the body camera footage shown to the jury was significant “in showing that [appellant] is absolutely not responding in a positive way to anything the officers are saying, and they are trying to talk him down from this, with no success whatsoever. [¶] I do not believe, based on what I saw on those body cams, that this was escalated by the officers. At some point they have to make a decision to act. They can't leave him in the middle of the street waving a knife around. They just can't.” The court also stated that “I didn't see that there was anything that was inappropriate. They needed to contain the situation that was not getting any better, and he's in the middle of the neighborhood.” Under these circumstances, there is ample evidence that appellant posed an immediate and continuing threat to the officers' safety so long as he held the knife in his hands and actively resisted officers' commands to drop the weapon.
Appellant asserts that no reasonable juror could have found that the officers had not used significantly more force that what was required under the circumstances. But his arguments amount to an invitation for this court to reweigh the evidence. Appellant emphasizes that he tried to negotiate with the officers and was not swearing or threatening them. He also suggests that his refusal to comply with their orders was mere passive resistance, and contends that the officers used excessive force because, in a 10-second span, they deployed a taser, a 40-millimeter foam dart, and a police dog, and was tackled to the ground.
In determining whether an officer's use of force was reasonable, a fact finder must consider the totality of the circumstances. (Graham, supra, 490 U.S. 386 at p. 396.) The circumstances here, which we have detailed above, do not establish an objectively unreasonable use of force given the prolonged efforts to persuade appellant to drop the knife, his erratic and unprovoked behaviors, and appellant's failure to comply even after a 40-millimeter foam dart and taser were employed against him. By the time the officers deployed the second projectile and taser, followed by the police dog and Officer Jemerigbe's tackle, they had few, if any, non-lethal options remaining to them.
Finally, appellant asserts that “[m]erely holding a pocketknife does not pose an immediate threat to a dozen armed officers who are standing 15 feet away.” This statement does not properly describe the immediate threat appellant posed to the officers. The knife, as we have noted, was apparently much larger than an average hunting or camping knife. Nor was he “merely holding” the knife. Testimony established that he was manipulating the blade, changing his grip, and waving the knife in the air. Appellant was in the middle of a residential street, refusing to follow officers' repeated requests to disarm, and acting erratically. That the officers were reasonably concerned for their safety under the circumstances cannot be gainsaid. Based on the foregoing, substantial evidence supports the jury's verdict that the officers were lawfully performing their duties when they arrested appellant and did not use excessive force in doing so.
B. Failure to Instruct on Assault as a Lesser Included Offense
Appellant further contends that the trial court erred by failing to instruct the jury sua sponte on the lesser included offense of simple assault.
“ ‘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.' ” (People v. Stewart (1976) 16 Cal.3d 133, 140.) “ ‘[I]nstructions on lesser included offenses “are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration' by the jury. [Citations.] ‘Substantial evidence' in this context is ‘ “evidence from which a jury composed of reasonable [persons] could... conclude[]”' that the lesser offense, but not the greater, was committed. [Citations.]” [Citation.] Instructions on lesser included offenses should be given “when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.”' ” (Brown, supra, 245 Cal.App.4th at p. 153.) We review whether a trial court improperly failed to instruct on a lesser included offense de novo. (People v. Souza (2012) 54 Cal.4th 90, 113.)
“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240.) “An ‘assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur. Rather, assault only requires an intentional act and 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.' ” (Brown, supra, 245 Cal.App.4th at p. 151.) “ ‘[W]hen excessive force is used by a defendant in response to excessive force by a police officer … defendant [may] be convicted, and then the crime may only be a violation of section 245, subdivision (a) or of a lesser necessarily included offense within that section,' such as section 240.” (Id. at p. 154.) As such, “even if the officer is not acting within the scope of his duties because of his use of excessive force, the defendant may still be guilty of simple battery [or simple assault] if he responds with excessive force.” (People v. Castain (1981) 122 Cal.App.3d 138, 145.)
Appellant relies on Brown, supra, 245 Cal.App.4th 140, to support his claim that the trial court was required to instruct the jury on simple assault. In Brown, police officers observed the defendant, a 67-year-old man, riding a bicycle on the sidewalk with no light, which were violations of the municipal code and the Vehicle Code. The defendant refused to stop or get off his bicycle. One of the officers tackled the defendant and threw him to the ground. The officers testified that defendant swung his fists at them. The officers admitted that they struck the defendant by punching him in the torso area, using a knee to strike his torso and delivering two blows to the defendant's head. (Id. at pp. 146-147.) The defendant testified that he fell off his bicycle, and while face down and not resisting, one of the officers pinned him to the ground and hit him in the head without provocation. The defendant suffered a fractured rib and knots on his head. (Ibid.)
The appellate court held that the trial court should have instructed the jury with simple assault. The court explained that the jury could have believed the defendant's testimony that the officers used excessive force in apprehending him, and also believed the officers' testimony that the defendant “repeatedly swung at them, striking both officers” after he was apprehended. (Brown, supra, 245 Cal.App.4th at p. 154.) The court reasoned that, “[i]f the jury concluded that [the defendant]'s reaction was unreasonable, that would have supported an assault conviction.” (Ibid.) The court concluded, “That view of the facts - i.e., that there was improper or excessive use of force on both sides - was frankly the most plausible interpretation of the evidence.' Thus, we conclude that the trial court erred by failing to instruct the jury regarding assault as a lesser necessarily included offense of the section 69 charge.” (Id. at p. 154.)
We need not resolve whether the trial court erred in failing to instruct on the lesser included offense of simple assault because we would find any such error harmless. “ ‘ “[T]he failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and is thus subject only to state standards of reversibility.” [Citation.] Under the state standard, “such misdirection of the jury is not subject to reversal unless an examination of the entire record establishes a reasonable probability that the error affected the outcome.” [Citations.] “The Supreme Court has emphasized ‘that a “probability” in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' ”' ” (Brown, supra, 245 Cal.App.4th at p. 155, italics omitted.)
Based on our review of the record, it is not reasonably probable that appellant would have obtained a more favorable outcome had the jury been instructed on assault. For the jury to find that appellant committed the lesser included offense of assault but not the greater offense of resisting an executive officer, it would have to find that appellant used excessive force only in response to the officers' prior use of excessive force. (See Brown, supra, 245 Cal.App.4th at p. 154.) As discussed above, the jury was unlikely to reach such a conclusion based on the record presented. The officers' initial encounter with appellant was nonconfrontational, asking him to stop and speak with them. Only after appellant created the dangerous situation by pulling out his knife did they eventually resort to intermediate force, and only after sustained efforts to diffuse matters. The evidence strongly supports the conclusion that the officers used only the amount of force necessary to gain control of a dangerous situation. It is not reasonably probable that a jury would have found that the officers' use of force was unreasonable given the potential danger and volatility of the circumstances they were encountering. (See People v. Larsen (2012) 205 Cal.App.4th 810, 831 [“ ‘The question is not what a jury could have done, but what a jury would likely have done if properly instructed.' [Citations.]” Italics omitted.].)
Further, the jury was also instructed on the lesser included offense of resisting an executive officer in the performance of his or her duties without the use of violence. (§ 148, subd. (a)(1).) This instruction permitted jurors to convict appellant of a misdemeanor rather than felony offense, but the jury declined to do so. As such, there is nothing in the record to support the possibility that the jury made an “all-or-nothing” decision by concluding that the officers were lawfully performing their duties in order to ensure a conviction. (See People v. Breverman (1998) 19 Cal.4th 142, 155 [observing that a trial court's duty to instruct on lesser included offenses prevents “either party from presenting the jury with an ‘unwarranted all-or-nothing choice' ”].) Any error in failing to instruct on the lesser included offense of simple assault was therefore harmless.
III. DISPOSITION
The judgment is affirmed.
We concur. HUMES, P.J., BANKE, J.