Opinion
H045109
12-20-2018
THE PEOPLE, Plaintiff and Respondent, v. JOSE OMAR RAMIREZ, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Cruz County Super. Ct. No. F24384)
A jury convicted defendant Jose Omar Ramirez of a number of crimes, including two counts of attempted first degree burglary with another person present (Pen. Code, §§ 664, 459, 667.5, subd. (c)(21)); resisting an executive officer in the performance of his duties under Penal Code section 69 (hereafter section 69); and resisting a peace officer under Penal Code section 148, subdivision (a) (hereafter section 148(a)). Ramirez contends on appeal that we must reverse his conviction of section 69 because of insufficient evidence; the trial court erred in failing to instruct the jury that section 148(a) is a lesser offense of section 69; and, if we uphold the section 69 conviction, we must strike the section 148(a) conviction because he cannot be convicted of both offenses. Ramirez also argues—and the People concede—that the enhancements under Penal Code section 667.5, subdivision (c)(21) do not apply to the crime of attempted burglary and must be stricken.
We reject Ramirez's challenges to his section 69 and section 148(a) convictions, and we agree that the enhancements for the attempted burglary convictions must be stricken. We affirm the judgment, as modified by the striking of the enhancements to the attempted burglary counts.
I. FACTS AND PROCEDURAL BACKGROUND
Ramirez was charged by information with first degree burglary with a person present (Pen. Code, §§ 459, 667.5, subd. (c); count 1); attempted first degree burglary with a person present (§§ 664, 459, 667.5, subd. (c); count 2); unlawful driving or taking of a vehicle (Veh. Code § 10851, subd. (a); count 3); resisting an executive officer (§ 69; count 4); misdemeanor damaging or taking part of a vehicle (Veh. Code, § 10852; count 5); misdemeanor petty theft (§ 484, subd. (a); count 6); misdemeanor resisting, obstructing, or delaying a peace officer (§ 148, subd. (a); count 7); misdemeanor possession of burglar's tools (§ 466; count 8); and misdemeanor reckless driving (Veh. Code § 23103, subd. (a); count 9). During trial the court granted the prosecution's motion to amend the information to add a vandalism charge (§ 594; count 10).
All further statutory references are to the Penal Code unless otherwise indicated.
The jury found Ramirez not guilty of burglary, as charged in count 1, but convicted him of the lesser offense of attempted burglary. (§§ 664, 459.) The jury found true the allegation that a person was present at the time of the burglary. For count 2, attempted burglary, the jury convicted Ramirez of that offense and found true the allegation that another person was present. The jury also found Ramirez guilty of counts 3 through 10. At sentencing the trial court suspended imposition of sentence, placed Ramirez on formal probation for a period of five years, and ordered him to serve 365 days in the county jail, part of which could be served in a residential treatment program. The trial court also imposed a number of other conditions of probation.
Other than his request that this court strike the enhancements under section 667.5, subdivision (c)—an issue the People concede—Ramirez's challenges center on his convictions for section 69 (count 4) and section 148(a) (count 7). In count 4, the information charged a violation of section 69 and alleged that Ramirez "did unlawfully attempt by means of threats and violence to deter and/or prevent Deputy James Wright, who was then and there an executive officer, from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and/or violence said executive officer in the performance of his duty." In count 7, the information charged a violation of section 148(a) and alleged that Ramirez "did willfully and unlawfully resist, delay and [sic] Deputy Wright, who was then and there a peace officer attempting to and discharging the duty of his/her office and employment."
The evidence for counts 4 and 7 consisted of the testimony of a single witness, Officer James Wright. Wright testified to the events of March 6, 2013, when he was serving as an officer with the Santa Cruz County Sheriff's Office. At approximately 1:00 a.m. on a rainy evening, dressed in full uniform and driving a marked patrol car, Wright began to follow a car associated with a recent residential burglary. After Wright had been following the car for a few minutes, the driver pulled over to the opposite side of the road, jumped out of the car while the car was still moving, and "hit[ ] the ground hard." The driver, whom Wright later identified as Ramirez, started running towards a wooded area. Wright ran after Ramirez. While pursuing Ramirez, Wright had his firearm out and gave Ramirez "multiple instructions to stop and to get on the ground." Ramirez "continued to run from [Wright]."
Ramirez ran into a thickly wooded area that was muddy from the rain. Ramirez slipped and fell to the ground. Wright instructed Ramirez to "stay where he was." Wright attempted to holster his firearm but was unsuccessful because his jacket was caught in his holster. Instead of obeying Wright's command to stay, Ramirez got up from the ground and continued to run away from Wright. Wright pursued Ramirez but then slipped in the mud. Wright told the jury, "That interaction of tripping, getting up, falling, tripping, getting up, falling, happened approximately three times." Ramirez asked Wright multiple times during the pursuit to let him go because he had a child.
Ramirez and Wright then reached an asphalt path. Wright pointed his taser at Ramirez and instructed him to get on the ground. Instead of getting on the ground, Ramirez ran away from Wright. Wright, who was then approximately ten feet from Ramirez, fired his taser. The taser probes hit Ramirez, and he fell onto the asphalt pathway. Wright did not touch Ramirez but instead called for backup assistance. Ramirez rolled over and sat up; Wright told Ramirez to stay on the ground. Ramirez began pulling the taser wires off his back.
Ramirez got to his feet and again began running away from Wright. Wright unsuccessfully attempted to use the taser on Ramirez. Wright discarded the taser and, for the first time, touched Ramirez directly. Wright grabbed Ramirez by the collar. "I grab[bed] him and began to . . . spin him by his collar to bring him to the ground." Ramirez "was still actively trying to get away from me, so I struck him with my knee to his ribs." Ramirez fell to the ground. Wright got on top of Ramirez while unsuccessfully attempting to holster his gun. Ramirez was able to roll away from Wright. "I believe at that point I grabbed him again and pulled him to the ground and continued to wrestle with him as well as try to get my gun in my holster." Ramirez "continued when we were on the ground trying to push up away from me."
Wright let go of Ramirez while trying to holster his weapon, and Ramirez was able to get away. Ramirez attempted to run down the slope but Wright grabbed him and "pulled him back up onto the pathway." Ramirez fell to his knees, and Wright struck Ramirez in the ribs with his knee. Ramirez fell onto his stomach but tensed to keep his hands underneath him and away from Wright. Wright pinned Ramirez to the ground and then Ramirez allowed Wright access to his hands. Another officer arrived, and he and Wright handcuffed Ramirez.
Ramirez did not make any threats to Officer Wright. Ramirez did not punch or strike Wright. Wright could not remember if Ramirez kicked him. "There was one point . . . when I was on top of him trying to detain him that he rolled towards me and then pushed away. I don't recall with the time that's passed whether he shoved me away or—but he did face me and he was able to get away from me."
Wright estimated that his pursuit of Ramirez lasted 14 minutes. Wright injured his ankle during the chase.
For the section 69 charge (count 4), the trial court gave the jury a modified version of the pattern instruction (CALCRIM No. 2652). Among other elements, the jury was told that the People must prove that "[t]he defendant unlawfully used force or violence to resist an executive officer." The instruction did not define "force" or "violence." Neither the prosecutor nor defense counsel requested that the court instruct the jury on a lesser included offense for count 4. For the section 148(a) charge (count 7), the trial court gave the jury a modified version of the pattern instruction (CALCRIM No. 2656). Among other elements, the jury was told that the People must prove that "Officer Wright was a peace officer lawfully performing or attempting to perform his duties as a peace officer," and "[t]he defendant willfully resisted, obstructed, or delayed Officer Wright in the performance or attempted performance of those duties."
The trial court did not give the jury any other instructions relating to counts 4 or 7 or to the relationship between the two crimes. The court did give a lesser included offense instruction, but it was limited to the first degree burglary charge in count 1. The court told the jury orally during instruction that "[e]ach of the counts charged in this case is a separate crime except for Count 4 and for Count 7 which are charged as alternative offenses." After the court instructed the jury but prior to closing argument, a juror sent a note to the court asking for clarification: "Count 4 vs. 7.? [¶] What is an alt[ernate] charge? [¶] One or other but not both?" In response to the note, the court informed the jury, "We have a question as to whether as to Counts 4 and 7 being an alternate charge, one or the other but not both. They are alternate because the crime of Count 4, resisting an executive officer, requires proof of force or violence in resisting. Count 7 does not. Consider both charges and you'll make a finding on both, again requiring a unanimous verdict."
In his closing argument, the prosecutor described the differences between section 69 and section 148(a). "[I]n a 148 if an officer has reason to detain someone or stop someone, suspect someone of being involved in a crime, tries to stop and the person runs, that's a 148 by itself. But what we've charged here is a PC 69, and what the PC 69 includes that a 148 does not is the force or violence used." "[W]hat distinguishes a PC 69 from the 148 is that force that the defendant used each time he was being held down or detained."
In his closing argument, defense counsel argued that there was not sufficient evidence of force or violence. "I think the mere fact that there's falling and that he's fleeing isn't force, isn't violence. He [is] trying to get away. He never strikes the officer. He never threatens to strike the officer. He says 'Let me go. I'm sorry.' So when you have this kind of incidental to his continuing to get away, is that force? Is that violence such that it rises to beyond a reasonable doubt on the count of violating Penal Code 69? I submit to you it's not."
During jury deliberations, the jury requested in writing "something that lists the charges." The trial court provided a written list of "the charges in relation to the events which are alleged by the prosecution." For count 4, the list stated, "Resisting Executive Officer-Officer Wright." For count 7, it stated, "Resisting Arrest-Running From Officer Wright."
During deliberations, the jury asked, "How should we view the defendant pulling out the taser probes: Is it an act of force?" The court replied, "Please see CALCRIM Instruction #200 which provides that 'Words and phrases not specifically defined in these instructions are to be applied using their ordinary, everyday meanings.['] Also see Instruction #2652 which sets forth the elements of the Penal Code Section 69 offense."
The jury asked no other questions related to counts 4 and 7. It convicted Ramirez of both crimes.
II. DISCUSSION
Ramirez challenges three aspects of his convictions for sections 69 and 148(a). As to the conviction for section 69, he argues that there was insufficient evidence of the required element of force or violence. He also contends that the trial court erred when it did not instruct the jury that section 148(a) is a lesser included offense of section 69. Finally, Ramirez asserts that section 148(a) is a lesser included offense of section 69, and, if there is sufficient evidence of section 69, he cannot be convicted of section 148(a) for the same conduct.
Ramirez also argues that the enhancements under section 667.5, subdivision (c) attached to counts 1 and 2 must be stricken because they do not apply to the crime of attempted burglary. The Attorney General concedes the point and concurs in the request that this court strike the allegations.
A. Sufficiency of the Evidence
Ramirez argues that the evidence was insufficient to support his conviction for section 69. He contends that his actions "only involved pushing and rolling away from the officer during the numerous times that they fell during the pursuit across uneven terrain. These actions do not rise to the level of force required by section 69, rather they comport with the misdemeanor guilty verdict that was reached in count 7, a violation of section 148, subdivision (a)."
"When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Powell (2018) 5 Cal.5th 921, 944, internal quotation marks omitted.) A reviewing court "presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "[A]n appellate court may not substitute its judgment for that of the jury. If the circumstances reasonably justify the jury's findings, the reviewing court may not reverse the judgment merely because it believes that the circumstances might also support a contrary finding." (People v. Ceja (1993) 4 Cal.4th 1134, 1139.)
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." (People v. Smith (2013) 57 Cal.4th 232, 240, internal quotation marks omitted.) The parties agree that Ramirez's conviction was based on the theory that he actively resisted Wright while Wright was trying to detain him. Ramirez's challenge of insufficient evidence focuses solely on the element of "force or violence" required by section 69.
Section 69, subdivision (a) provides, "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment."
Section 69 does not mandate that "any force or violence [be] directed toward the person of an executive officer." (People v. Bernal (2013) 222 Cal.App.4th 512, 519.) Instead, "force used by a defendant in resisting an officer's attempt to restrain and arrest the defendant is sufficient to support a conviction." (Ibid., italics omitted.) In Bernal, for example, the court found sufficient evidence to support a conviction for section 69 where the defendant tried to run from the officer who was holding on to him, causing them both to fall "violently to the ground." (Id. at p. 520.) In addition, the defendant swung his hips from one side to the other attempting to free himself from the officer's grasp. (Ibid.) The court found this "forceful resistance" "amply supported [the defendant's] conviction of violating section 69." (Id. at pp. 518, 520.) Similarly, a physical struggle in which a defendant was kicking, struggling, and "squirm[ing]" satisfied section 69's element of "force or violence." (People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986.)
Officer Wright testified that Ramirez "wrestle[d]" and "pushed away [from him]." Ramirez "actively tr[ied] to get away from [him]." Wright had to spin Ramirez by the collar to try and get him to the ground. Ramirez tensed his body to keep his hands away from Wright. Ramirez pulled the taser probes out of his body to continue his flight. Wright had to tase, spin, strike, grab, pull, and pin Ramirez to gain control over him.
Ramirez points us to no case finding similar actions insufficient to support a conviction for section 69. Instead, Ramirez cites In re J.C. (2014) 228 Cal.App.4th 1394 and argues that the evidence in that case "comport[s] with" the evidence here. However, In re J.C. examined only whether the evidence there was sufficient to support a conviction of section 148(a) and did not address section 69 at all. (Id. at p. 1399.) More importantly, our review is limited to determining whether the jury had before it substantial evidence of section 69. We may not reweigh evidence and must draw all reasonable inferences in support of the judgment. (People v. Culver (1973) 10 Cal.3d 542, 548.) Ramirez's jury concluded beyond a reasonable doubt that Ramirez used force or violence in resisting Officer Wright, and Wright's testimony provided substantial evidence to that effect. We reject Ramirez's contention to the contrary.
B. Instructional Error
Ramirez argues that the trial court prejudicially erred by failing to instruct the jury sua sponte that section 148(a) is a lesser included offense of section 69. We apply de novo review to the trial court's decision whether to give a jury instruction, which is a "mixed question of law and fact that . . . is . . . predominantly legal." (People v. Waidla (2000) 22 Cal.4th 690, 733.)
Count 4 of the information charged Ramirez with a violation of section 69 and alleged that he "did knowingly resist by the use of force and/or violence [Officer Wright] in the performance of his duty." The California Supreme Court has held that, if the charging document alleges that a defendant violated section 69 by knowingly resisting an executive officer by the use of force or violence and if there is "substantial evidence to conclude that the defendant violated section 148(a)(1) without also violating section 69," then the trial court has a sua sponte duty to instruct on the lesser offense of section 148(a). (Smith, supra, 57 Cal.4th at pp. 242, 244-245.)
The parties disagree whether there is substantial evidence to conclude that Ramirez violated section 148(a) without also violating section 69. The Attorney General maintains that "[t]here is no evidence that appellant committed only the lesser offense of resisting the officer without the use of force." Ramirez counters that his actions "only involved pushing and rolling away from the officer," which do not constitute force.
We agree with Ramirez that Officer Wright's testimony provided substantial evidence that, during large portions of the chase, Ramirez did not use force or violence in resisting Wright. From the moment that Ramirez first jumped out of the moving car, to his flight down the muddy slope, to his fall on the asphalt pathway with the taser probes embedded in his back, Ramirez had not forcefully resisted Officer Wright. Instead, Ramirez was simply running from Wright. A reasonable juror could conclude that this evidence supported a violation of section 148(a), but such a juror could not conclude that Ramirez had by that point used force or violence in resisting Wright. Indeed, the trial court's explanation of the charge in count 7 as "Resisting Arrest-Running From Officer Wright" highlights that the portions of the chase in which Ramirez was merely running away had no bearing on the section 69 charge.
The evidentiary landscape, however, changed once Officer Wright grabbed Ramirez by the collar. Wright related at least two incidents with Ramirez in which they were physically wrestling with one another. Wright testified that, once he grabbed Ramirez's collar, Ramirez "was still actively trying to get away from me, so I struck him with my knee to his ribs." Wright got on top of Ramirez, but Ramirez rolled away from him. Wright then "grabbed [Ramirez] again and pulled him to the ground and continued to wrestle with him." Ramirez "continued when [they] were on the ground trying to push up away from [Wright]."
Ramirez argues that his escapes from Officer Wright's grasp occurred solely because Wright let go of Ramirez while trying to holster his gun. But this account cannot be reconciled with Wright's uncontradicted testimony of a physical struggle with Ramirez. If Ramirez had not been forcefully resisting Wright, there would have been no wrestling, rolling, or pushing. "[I]f [Ramirez] resisted the officer[] at all, he did so forcefully." (Carrasco, supra, 163 Cal.App.4th at p. 985.) No reasonable juror could conclude that Ramirez's physical resistance to Wright amounted to a violation of section 148(a) but not a violation of section 69. Therefore, the trial court correctly did not instruct the jury that section 148(a) was a lesser included offense of the violation of section 69 charged in count 4.
C. Multiple Convictions
Ramirez argues, quoting People v. Moran (1970) 1 Cal.3d 755, that if this court upholds the section 69 conviction in count 4, it must reverse the section 148(a) conviction in count 7 because " '[i]f the evidence supports the verdict as to a greater offense, the conviction of that offense is controlling, and the conviction of the lesser offense must be reversed.' " (Id. at p. 763.)
A person can generally be convicted of more than one crime arising out of the same act or course of conduct, although not punished for both. (People v. Reed (2006) 38 Cal.4th 1224, 1226 ; see §§ 954; 654.) As Ramirez points out, an exception to that rule applies to convictions involving a necessarily lesser included offense. Multiple convictions are not allowed when one of the crimes cannot be committed without necessarily committing the other. (Reed, supra, at p. 1227.) Importantly, though, to determine whether a crime is a lesser included offense in the context of the prohibition again multiple convictions, we look only to the statutory elements of the offenses in question. (Id. at p. 1229.) This approach is distinct from identifying a duty to instruct the jury on an uncharged lesser included offense. In the instructional context, as we have already discussed, a lesser offense is included in the greater if the statutory elements of the greater offense include all the elements of the lesser or if the accusatory pleading's description of how the greater offense was committed includes all elements of the lesser. (Smith, supra, 57 Cal.4th at p. 240.)
Looking only to the statutory elements, "section 148(a)(1) is not intrinsically a necessarily lesser included offense of section 69 because a defendant can violate section 69 . . . by attempting to deter an executive officer from performing a duty, without violating section 148(a)(1)." (Smith, supra, 57 Cal.4th at p. 243.) The rule prohibiting multiple convictions for both a greater offense and a necessarily included lesser offense is therefore not implicated here. For that reason, we find no error in convicting Ramirez of violating both section 69 and section 148(a).
D. Section 667.5, Subdivision (c) Enhancement
The jury convicted Ramirez of attempted burglary in counts 1 and 2. The jury also found true the allegations under section 667.5, subdivision (c) attached to both counts that another person was present. These enhancements render counts 1 and 2 "violent felonies" under section 667.5, subdivision (a), which imposes sentencing enhancements for such crimes. (§ 667.5, subd. (a); People v. Bedolla (2018) 28 Cal.App.5th 535.) However, "[s]ection 667.5, subdivision (a), does not apply to attempts to commit the crimes referred to as violent felonies." (People v. Ibarra (1982) 134 Cal.App.3d 413, 425.) Because Ramirez's convictions were for attempted first degree burglary only, the enhancements must be stricken. (See Bedolla, supra, at p. 347.) We therefore order the trial court to strike the enhancements for counts 1 and 2.
Section 667.5, subdivision (c)(21) provides in relevant part, "For the purpose of this section, 'violent felony' shall mean any of the following: [¶] . . . [¶] Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary." --------
III. DISPOSITION
The judgment is modified to strike the Penal Code section 667.5, subdivision (c) enhancements for counts 1 and 2. As so modified, the judgment is affirmed.
/s/_________
DANNER, J. WE CONCUR: /s/_________
GREENWOOD, P.J. /s/_________
GROVER, J.