Opinion
H044219
12-07-2018
THE PEOPLE, Plaintiff and Respondent, v. GREGORY MARTIN NELSON, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1502927)
A jury found appellant Gregory Martin Nelson guilty of resisting arrest but acquitted him on charges of assault with force likely to produce great bodily injury and inflicting injury on a former cohabitant. The trial court granted a two-year term of probation with 10 days in county jail.
Nelson raises two claims on appeal. First, he contends the evidence was insufficient to support his conviction for resisting arrest because the police were not engaged in the lawful performance of their duties at the time of the arrest. Second, he contends the trial court erroneously instructed the jury on resisting arrest. Because his trial counsel did not object or request pinpoint instructions, Nelson contends counsel provided ineffective assistance. We conclude Nelson's claims are without merit.
I. FACTUAL AND PROCEDURAL BACKGROUND
Because Nelson's claims on appeal solely concern his conviction for resisting arrest, and because the jury acquitted him on the domestic violence related charges, we focus on the facts of the arrest, particularly those known to the police at the time.
Around 8 p.m., police responded to a 911 call reporting a possible domestic violence incident. The call came from a group of four witnesses in a car driving by Nelson's house. The caller reported seeing a man drag a woman into a house by her hair and beating her inside the house. The caller described witnessing the beating through a window in the house, telling the dispatcher, "he's hecka beating her up and socking her," "he's just beating her really bad" and "he's just socking her everywhere." The caller added that the woman was trying to fight back. Police arrived soon thereafter, whereupon one of the witnesses in the car pointed them to Nelson's house. At trial, the caller and two other passengers in the car testified that they witnessed Nelson drag the woman into the house and beat her.
1. Testimony of Officer Shane Lueddeke
Officer Shane Lueddeke was one of the first officers to arrive at the house. He saw a woman near the open front door with Officer Little. The woman exited the house, approached Officer Little, and stood in the front yard to talk to him. Officer Lueddeke walked past them and approached the front door to "cover" Officer Little in the event that "something dangerous came his way, . . . I would handle that." Officer Lueddeke did not know whether there were any weapons or firearms in the house; whether the suspect had any martial arts or similar training; or whether the suspect had a criminal history. As Officer Lueddeke approached the house, two big dogs came running out, but they did not seem aggressive. Officer Lueddeke then heard Officer Little say, "There's a guy walking toward the front door." Because the door was open, Officer Lueddeke could see Nelson walking into the foyer or breezeway of the house.
Nelson was standing in the house about 15 feet away from Officer Lueddeke. Officer Lueddeke saw that Nelson was holding a cigarette and an aluminum beverage can. Officer Lueddeke was concerned these items could be used as weapons, so he instructed Nelson to put them down and come outside to talk to the police. Officer Lueddeke issued these instructions three times. Nelson put the beverage can on the back of a sofa but kept the cigarette in his hand. Nelson then approached the door, put his free hand on the side of the door, and said something like, "You're not coming in. You need a search warrant." At that point, Officer Lueddeke was just outside the door, and Nelson was a couple feet away, inside the doorway. Nelson started to swing the door shut, but Officer Lueddeke put his foot up to forcibly kick the door open, "like you would kind of see on TV, how they do doors in Hollywood." The door flew open and Officer Lueddeke entered the residence.
Officer Lueddeke had drawn his pistol at some point just before or after he kicked the door open. Once inside the house he holstered his gun and drew out his night stick. He told Nelson to get on the ground, but Nelson failed to comply. Nelson made fists with his hands, which he held down by his sides. Officer Lueddeke interpreted this body language as "an indicator of someone that's about to become violent." Officer Lueddeke struck Nelson in the torso with the baton and again instructed him to get on the ground, but Nelson did not comply. Officer Lueddeke struck him two more times with the baton in "kind of a jabbing motion into his torso," causing Nelson to backpedal into the foyer area. Nelson fell onto the ground on his stomach, and Officer Lueddeke got on top of him, straddling him "kind of like you would ride a horse." Officer Lueddeke instructed Nelson to put his hands behind his back, but his left hand was under his torso. Officer Lueddeke tried to pull Nelson's arm out from under him, but Officer Lueddeke thought Nelson was resisting the attempt. After about seven to 10 seconds, Officer Lueddeke was able to get Nelson's hands behind his back, whereupon he was handcuffed and taken into custody. Once Nelson was handcuffed, he stopped resisting and cooperated.
2. Testimony of Officer Rod Smith
Officer Rod Smith reached the scene after the other officers. When he first arrived, the victim was outside in front of the house, kneeling on the ground. She was crying and distraught, and she appeared "pretty disheveled." She had a cut lip and some redness or bruising around her neck and chest area. The cut on her lower lip was bleeding. A full-body examination revealed no further injuries. The victim told Officer Smith that Nelson had strangled her. Specifically, Nelson had placed her in "a headlock type of hold" that restricted her breathing. She also stated that Nelson had punched her several times while they were driving, just prior to their arrival at the residence.
B. Procedural Background
The prosecution charged Nelson with three counts: Count 1—assault by means likely to produce great bodily injury (Pen. Code § 245, subd. (a)(4)); count 2—inflicting corporal injury on a former cohabitant (§ 273.5, subd. (a)); and count 3—resisting, delaying, or obstructing a police officer (§ 148, subd. (a)(1)). The jury found Nelson not guilty on counts 1 and 2, but guilty on count 3. The trial court suspended imposition of sentence and granted a two-year term of probation to include 10 days in county jail.
Subsequent undesignated statutory references are to the Penal Code.
II. DISCUSSION
A. Sufficiency of the Evidence
Nelson contends the evidence is insufficient to support his conviction for resisting arrest. Specifically, he contends the police were not engaged in the lawful performance of their duties at the time of the arrest. He argues that the police had neither probable cause nor exigent circumstances to justify their entry into his residence. The Attorney General contends the record shows the police had probable cause and that exigent circumstances justified their entry. For the reasons below, we conclude sufficient evidence supports the conviction.
1. Legal Standards
The standard of review when considering whether sufficient evidence supports a conviction is well established. "In reviewing the sufficiency of evidence under the due process clause of the Fourteenth Amendment to the United States Constitution, the question . . . is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " (People v. Rowland (1992) 4 Cal.4th 238, 269, quoting Jackson v. Virginia (1979) 443 U.S. 307, 319.) The California Constitution requires the same standard. (Ibid.) "In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court 'must view the evidence in a light most favorable to respondent and presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' " (People v. Johnson (1980) 26 Cal.3d 557, 576.) This standard applies even when the prosecution relies primarily on circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.)
The elements of resisting arrest are: " ' "(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties." ' [Citation.]" (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 894-895.) "[I]t is also a 'well-established rule that when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed.' [Citations.]" (People v. Cruz (2008) 44 Cal.4th 636, 673.)
2. Sufficient Evidence Supports the Conviction for Resisting Arrest
Nelson contends the police lacked probable cause to support his arrest for domestic violence or exigent circumstances to justify entry into his home. We are not persuaded.
"Probable cause exists when the facts known to the arresting officer would persuade someone of 'reasonable caution' that the person to be arrested has committed a crime. [Citation.]" (People v. Celis (2004) 33 Cal.4th 667, 673 (Celis).) Here, the police had specific and credible information provided by the 911 caller who was contemporaneously describing acts of domestic violence witnessed directly outside Nelson's residence. The caller described seeing a man grab a woman by her hair and drag her into the residence. The man then began "hecka beating her up" and "just socking her everywhere," according to the caller. When the police arrived, one of the witnesses in the car pointed out Nelson's residence as the house where the altercation occurred. When police approached the house, the victim exited and displayed objective signs of violence. She was disheveled and crying, she had abrasions around her neck and chest area, and her lip was cut and bleeding. When the police approached the front door, Nelson was the only male adult visibly present. At that point, the police had knowledge of specific, articulable facts sufficient to persuade a person of reasonable caution that Nelson had committed a felony—i.e., assault by means of force likely to produce great bodily injury, or inflicting injury upon a cohabitant. This evidence is sufficient to support a finding that the police had probable cause sufficient to arrest Nelson.
Nelson contends that Officer Lueddeke was not personally aware of the victim's injuries or disheveled appearance, but Officer Lueddeke was not the only officer involved in making the arrest. Two other officers—at least one of whom had personally encountered the victim—entered the residence along with Officer Lueddeke to arrest Nelson. Furthermore, Officer Lueddeke testified he was personally aware of the reports made by the 911 caller. Nelson cites no authority for the proposition that every individual officer involved in an arrest must personally have knowledge of every fact relevant to a finding of probable cause or exigent circumstances. Regardless, the facts known to Officer Lueddeke were sufficient to justify the arrest.
Nelson also contends the police lacked exigent circumstances sufficient to justify the warrantless entry into his residence. We recognize that the entry of law enforcement officers into an individual's home is a matter of grave constitutional concern. " 'It is axiomatic that the "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed." ' [Citation.] A warrantless entry is 'presumptively unreasonable.' [Citation.] This presumption can be overcome by a showing of one of the few 'specifically established and well-delineated exceptions' to the warrant requirement [citation], such as ' "hot pursuit of a fleeing felon, or imminent destruction of evidence, . . . or the need to prevent a suspect's escape, or the risk of danger to the police or to other persons inside or outside the dwelling" ' [citation]. The United States Supreme Court has indicated that entry into a home based on exigent circumstances requires probable cause to believe that the entry is justified by one of these factors . . . . [Citation.]" (Celis, supra, 33 Cal.4th at p. 676.)
However, again, we are not persuaded. First, a reasonable jury could have found Nelson violated section 148 before the police entered his residence. (See, e.g., People v. Williams (2018) 26 Cal.App.5th 71.) When Officer Lueddeke initially encountered Nelson, the officer was still outside the residence. He instructed Nelson to put down the objects Nelson was holding in his hands and exit the residence. Instead, Nelson attempted to close the door on Officer Lueddeke. Sufficient evidence supported a finding that Nelson thereby willfully resisted, delayed, or obstructed the officer while he was in engaged in the lawful performance of his duties, and that Nelson knew or reasonably should have known Officer Lueddeke was so engaged. Nelson relies on People v. Wetzel (1974) 11 Cal.3d 104 for the principle that a conviction for resisting arrest cannot rest on a resident's refusal to grant permission for the police to enter a residence. But the court in that case expressly set forth an exception for circumstances in which a defendant blocks a doorway and impedes the police. (Id. at p. 110.)
Second, a reasonable jury could have found the police had exigent circumstances sufficient to justify entry into the residence. For example, the police could have been acting to prevent the "imminent destruction of evidence." (Celis, supra, 33 Cal.4th at p. 676.) Perpetrators of domestic violence may have physical evidence on their persons—e.g., skin or tissue under the fingernails, or blood on clothing—that could be washed off or discarded. Given that the victim displayed evidence of a physical attack, the police could have found Nelson would have such evidence on his person. Alternatively, once Nelson attempted to close the door on the police, they could have been concerned that he would escape through a rear door in the residence. Entry was thereby justified "to prevent a suspect's escape." (Ibid.) Nelson points out that Officer Lueddeke did not testify to acting on such motivations, but we do not look to an officer's subjective state of mind; rather, we objectively examine the facts known by the police at the time of the arrest. (Id. at p. 673.)
For the reasons above, we conclude a reasonable trier of fact could have found the police were engaged in the lawful performance of their duties at the time of the arrest, and that Nelson was guilty beyond a reasonable doubt of violating section 148.
B. Jury Instructions on Resisting Arrest
Nelson contends the trial court erroneously instructed the jury on the legal principles relevant to the charge of resisting arrest. He argues that the instruction "erroneously informed the jury as to the quantum and nature of the evidence required to find that an exigent circumstance justified entry of appellant's home," and "failed to inform the jury that appellant's assertion of his rights under the First and Fourth Amendments did not justify entry of the home in the absence of a warrant or a known exigent circumstance." Because his trial counsel neither objected nor requested pinpoint instructions to this effect, Nelson further contends his counsel provided ineffective assistance in this regard. The Attorney General contends Nelson forfeited his claim by failing to object, and that the trial court properly instructed the jury. For the reasons below, we conclude that Nelson's claim is without merit.
1. Background
The trial court instructed the jury on the law of resisting arrest in relevant part as follows: "A peace officer is not lawfully performing his or her duties if he is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties. [Citing CALCRIM 2670.] The People have the burden of proving beyond a reasonable doubt that [Officer] Lueddeke was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the Defendant not guilty of Count 3. [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting someone or using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest. [¶] A peace officer may legally arrest someone either on the basis of an arrest warrant or if he or she has probable cause to make the arrest. [¶] Any other arrest is unlawful. [¶] Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime. [¶] In deciding whether the arrest was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she arrested the person. [¶] In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or infraction, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor or infraction in the officer's presence. [¶] In order for an officer to lawfully arrest someone for a felony or a misdemeanor crime of Penal Code § 243(e)(1), battery on a person with whom Defendant has or previously had a dating relationship, without a warrant, the officer must have probable cause to believe the person to be arrested committed a felony or a misdemeanor crime of Penal Code § 243(e)(1), battery on a person with whom defendant has or previously had a dating relationship. [¶] However, it is not required that the offense be committed in the officer's presence. In order for an officer to enter a home to arrest someone without a warrant and without consent: [¶] 1, the officer must have probable cause to believe that the person to be arrested committed a crime and is in the home; [¶] And 2, exigent circumstances require the officer to enter the home without a warrant. [¶] Exigent—the term 'exigent circumstances' describes an emergency that requires swift action to prevent: [¶] 1, imminent danger to life or serious damage to property; [¶] Or 2, the imminent escape of a suspect or destruction of evidence."
2. Legal Standards
We review de novo a claim of erroneous jury instructions. (People v. Guiuan (1998) 18 Cal.4th 558, 569.) "[W]e view the challenged instruction in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner." (People v. Houston (2012) 54 Cal.4th 1186, 1229.)
3. The Trial Court Properly Instructed the Jury on the Law of Resisting Arrest
Nelson challenges the above instructions on the ground they "failed to ensure that appellant's home was entered based on sufficient evidence of exigent circumstances, and not generalized, but unsubstantiated, concerns about the offense of domestic violence." He argues the jury should have been told that "Officer Lueddeke's experience in domestic violence cases, and concerns about such cases, could not alone justify a finding of exigent circumstances." He contends the jury should have been told, in addition to the above instructions, "Exigent circumstances must be based on the particular facts of the case, and not the nature of the alleged crime of domestic violence alone."
We perceive no deficiencies in the trial court's instructions. The court properly instructed the jury that the prosecution bore the burden of proving beyond a reasonable doubt that the police were lawfully performing their duties when they arrested Nelson. The court then instructed the jury that the police were required to have both probable cause and exigent circumstances to lawfully enter Nelson's residence. The court further instructed the jury on the definitions of probable cause and exigent circumstances in accord with the legal principles set forth above. Nothing in the court's instruction implied the jury could rely on the officer's "generalized but unsubstantiated concerns about the offense of domestic violence." Nor was there a reasonable likelihood the jury applied the instruction in an impermissible manner. The instructions directed the jury to base its findings on the facts of this specific case. As to Officer Lueddeke's experience in handling domestic violence cases, the court properly instructed the jury it could consider evidence of the officer's training and experience. (People v. Lilienthal (1978) 22 Cal.3d 891, 899; People v. Clayton (1970) 13 Cal.App.3d 335.) And because the court properly instructed the jury, Nelson's trial counsel did not provide ineffective assistance; any objection or request for pinpoint instructions would have been futile. (People v. Anderson (2001) 25 Cal.4th 543, 587 [defense counsel does not provide ineffective assistance of counsel by declining to lodge a futile objection].)
Finally, Nelson contends the trial court should have instructed the jury on Nelson's constitutional right to deny entry to the police. But the jury was properly instructed that the police needed both probable cause and exigent circumstances to enter the residence. These instructions were sufficient to safeguard Nelson's constitutional rights; any further instruction would have been redundant. Nelson implies the police entered his home based on his assertion of his First and Fourth Amendment rights to deny entry, but nothing in the record shows the police were motivated by his insistence they obtain a warrant. Rather, the record reasonably supports the inference they entered Nelson's home based solely on the existence of probable cause and exigent circumstances.
We note that in his testimony Nelson adamantly denied that he told Officer Lueddeke he needed a warrant. --------
For the reasons above, we conclude this claim is without merit.
III. DISPOSITION
Because counsel for Nelson filed a certified copy of a death certificate showing he died during the pendency of this appeal, all proceedings in this case must be permanently abated. (In re Jackson (1985) 39 Cal.3d 464, 480; People v. Dail (1943) 22 Cal.2d 642, 659; People v. de St. Maurice (1913) 166 Cal. 201, 202.) The cause is remanded to the trial court, with directions to enter an order permanently abating all proceedings with respect to Nelson.
/s/_________
Greenwood, P.J. WE CONCUR: /s/_________
Premo, J. /s/_________
Grover, J.