Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA072435, George Genesta, Judge.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
In an amended information, the People charged defendant, Marcos Santistevan, with assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1); count 1), criminal threats (§ 422; counts 2 & 5), corporal injury to a spouse or cohabitant (§ 273.5, subd. (a); counts 3 & 6), and resisting an executive officer (§ 69; count 4).
All future statutory references are to the Penal Code.
The People further alleged, as to all counts, that defendant suffered two “strike” convictions (§§ 667, subds. (b)-(i), 1170.12), was convicted of two felonies within the meaning of section 1203, subdivision (e)(4), and, as to counts 1, 2 and 5, was convicted of two serious felonies within the meaning of section 667, subdivision (a)(1).
On the People’s motion, the trial court dismissed count 1 in the interests of justice (§ 1385). On motion of the defense, trial on the priors was bifurcated.
Trial was by jury. The jury found defendant guilty of resisting an executive officer, as charged in count 4, and of misdemeanor battery against a cohabitant (§ 243, subd. (e)(1)), a lesser included offense of count 3. The jury deadlocked on count 2 and returned not guilty verdicts on all remaining counts. A mistrial was declared as to count 2, which was dismissed on motion of the People.
Following a court trial on the prior conviction allegations (the dates of which were amended by interlineation), the court found the allegations to be true. The court denied defendant’s motions to reduce count 4 to a misdemeanor and to strike his prior convictions. The court sentenced defendant to state prison for 25 years to life under the “Three Strikes” law.
FACTS
Prosecution
Defendant and Jessica Montes (Montes) met in December 2004. The two lived together off and on.
On September 22, 2005, defendant and Montes, who had spent the night at a friend’s house, argued. Defendant punched Montes in the face and head-butted her in the forehead.
Montes walked to a nearby bus stop. Defendant followed on his bicycle. At the bus stop, defendant picked up his bicycle and swung it at Montes, hitting her several times in the legs. Defendant then placed his arm around Montes’ neck in a choking manner. Montes appeared terrified. Lillian Gonzales, an employee of the Baldwin Park School District, witnessed the incident and reported the incident to school police.
When school police arrived, defendant removed his arm from Montes’ neck. Baldwin Park Police Officer Juan Serrato then arrived at the bus stop, having been dispatched to investigate a report of an assault. Montes was crying and disheveled; defendant was angry and upset. As Officer Serrato approached defendant, defendant told Montes, “See what you did,” and “Just watch what’s going to happen. Want me to go out like that? Just watch.” Officer Serrato’s directives to defendant to calm down were ignored. Defendant continued to rant and rave. He questioned Officer Serrato’s presence, noting that the school police already were handling the situation.
Officer Serrato undertook to conduct a pat down search of defendant. As the officer did so, defendant moved away in a violent manner. A struggle ensued, during which defendant attempted to kick Officer Serrato. The officer instructed defendant to stop resisting and to comply with his directives. Eventually, defendant was handcuffed.
Defendant continued to yell and complained of a sharp pain to his hip. Defendant relaxed somewhat after Officer Serrato promised to raise him to a sitting position if he calmed down. When the officer released downward pressure on defendant, defendant swung backward and kicked the officer twice, ripping his uniform. Officer Serrato placed defendant face-down on the ground. With the help of school police, defendant was placed in Officer Serrato’s air-conditioned police car.
Officer Serrato then turned his attention to Montes, who was crying and trembling. While the two spoke, defendant screamed, kicked his feet against the window of the patrol car, and also butted his head against the window. Inasmuch as defendant ignored Officer Serrato’s directives to stop, the officer clipped defendant’s ankles to the back of his handcuffs and placed him in an upright seated position, after which he was transported to the police station.
Defense
Defendant and Montes were not involved in a relationship. Rather, they were friends who used drugs together.
On September 22, 2005, defendant was at the bus stop with Montes, explaining that they needed to dissolve their friendship because he did not want to get “high” anymore and he was dating someone. Defendant at no time hit Montes.
When Officer Serrato arrived at the bus stop, he was “really hyper with a . . . mad glare in his eyes.” He was “kind of jumping up and down with his arms out” and “pull[ed] his baton out.” Defendant stated, “What’s going on? I haven’t done nothing to you,” and asked “Why are you guys here?” Officer Serrato directed defendant to calm down. Defendant did not do so, in that Officer Serrato had not answered his questions.
Officer Serrato “grabbed” defendant, “aggressively” kicked his legs apart and conducted a pat-down search. Defendant’s repeated complaints of hip pain were ignored by the officer, who told defendant to shut up. Defendant denied kicking Officer Serrato at any time, claiming the officer was behind him the entire time. Defendant also denied trying to move away from Officer Serrato. Defendant admitted being uncooperative in the verbal sense only, though he never threatened Officer Serrato.
While detained in the patrol car, the windows were closed and the air-conditioning was off. Defendant screamed that he had asthma and butted his head against the window of the patrol car to attract attention. Defendant denied kicking the window.
CONTENTIONS
Defendant contends (1) the trial court erred by refusing to instruct the jury on misdemeanor resisting arrest as a lesser included offense of resisting an executive officer; (2) his juvenile adjudication cannot qualify as a prior strike under federal constitutional law; (3) the court abused its discretion by denying his motion to strike his prior serious felony convictions; and (4) the court erred in denying him presentence custody credits. We agree that defendant is entitled to presentence custody credits but otherwise find his contentions to be without merit.
DISCUSSION
Lesser Included Instruction
The trial court has a duty to instruct the jury sua sponte as to the principles of law relevant to the issues raised by the evidence. (People v. Wims (1995) 10 Cal.4th 293, 303; People v. Saddler (1979) 24 Cal.3d 671, 681.) This duty extends to instructions on lesser included offenses when the evidence raises a question as to whether all elements of the charged offense have been established, but instructions on lesser included offenses are not required if there is no evidence that the offense is less than that charged. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Barton (1995) 12 Cal.4th 186, 200-201.) Instructions on lesser included offenses must be given whenever there is “‘“evidence from which a jury composed of reasonable [persons] could have concluded”’ that the particular facts underlying the instruction did exist.” (People v. Wickersham (1982) 32 Cal.3d 307, 324, disapproved on other grounds in Barton, supra, at p. 201; People v. Flannel (1979) 25 Cal.3d 668, 684.) In the absence of such evidence, no instruction on the lesser included offense need be given. (Wickersham, supra, at pp. 324-325; Flannel, supra, at p. 684.)
As observed in People v. Clark (1990) 50 Cal.3d 583, “[a]n offense is necessarily included in another if (1) the greater statutory offense cannot be committed without committing the lesser because all of the elements of the lesser offense are included in the elements of the greater; or (2) if the charging allegations of the accusatory pleading include language describing it in such a way that if committed in the manner the lesser offense must necessarily be committed.” (At p. 636; accord, People v. Birks (1998) 19 Cal.4th 108, 117-118; People v. Ortega (1998) 19 Cal.4th 686, 698.) In this case, the prosecution used the statutory terms, including the attempt language, in the information.
Count 4 of the information states: “On or about September 22, 2005, in the County of Los Angeles, the crime of RESISTING EXECUTIVE OFFICER, in violation of PENAL CODE SECTION 69, a Felony, was committed by MARCOS SANTISTEVAN, who did unlawfully attempt by means of threats and violence to deter and prevent J. SERRATO, 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 violence said executive officer in the performance of his/her duty.”
During a discussion of jury instructions, defense counsel stated his belief that section 148 was a lesser included offense of section 69. The court replied, “148 is not really a lesser included to that. It’s a 69 or attempted 69. I think the attempt is only the lesser included. Correct me if I’m wrong.” Defense counsel replied, “I will.”
Section 148, subdivision (a)(1), states: “Every person who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”
Section 69 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 such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
When jury instructions were discussed later, defense counsel did not renew his request for an instruction on section 148 as a lesser included offense of section 69. Rather, defense counsel stated, “I would ask the court to consider the lesser related offense of resisting arrest, [section] 148 of the Penal Code, which is reflected in CALJIC [No.] 16.102 for the reasons that I think the facts simply showed that my client could be guilty of resisting arrest, but not guilty of the [section] 69 for which he is charged. There are facts that a reasonable juror could conclude that the charge of [section] 69 in its elements has not been proved, but that the crime of [section] 148 has been proved by the state of the evidence.” (Italics added.) In response, the court stated, “A [section] 148 is not a lesser included of Penal Code [section] 69. We all agree it’s [in] the discretion of the court to instruct on a lesser related offense. In this instance the court finds that the lesser related offense in this matter is not warranted, and the court declines to grant the request.”
Defendant contends that misdemeanor resisting arrest (§ 148, subd. (a)(1)) is a lesser included offense of resisting an executive officer (§ 69) and that the trial court erred by refusing to instruct on misdemeanor resisting arrest. Section 148 is not a lesser included offense of section 69. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1532; People v. Belmares (2003) 106 Cal.App.4th 19, 24.) In any event, defendant was not entitled to an instruction on that lesser offense since there is no evidence that the offense committed by defendant was less than that charged. (People v. Breverman, supra, 19 Cal.4th at p. 154; People v. Barton, supra, 12 Cal.4th at pp. 200-201.) Defendant completely denied threatening or resisting Officer Serrato. His testimony therefore did not justify the giving of an instruction on section 148. We therefore conclude that no instructional error has been demonstrated.
While section 148 is a lesser related offense of section 69 (People v. MacKenzie (1995) 34 Cal.App.4th 1256, 1279-1280), defendant had no right to an instruction on the lesser related offense without the prosecutor’s consent (People v. Birks, supra, 19 Cal.4th at pp. 112-113).
Juvenile Adjudication
Defendant contends a juvenile adjudication cannot qualify as a prior strike under federal constitutional law. This issue has been considered and rejected by numerous appellate courts in California, including courts in the Second District. (People v. Buchanan (2006) 143 Cal.App.4th 139, 141; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1311, 1313-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075, 1077-1078; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394; cf. People v. Palmer (2006) 142 Cal.App.4th 724.) We agree with the reasoning of these cases, which we need not repeat, and summarily reject defendant’s contention.
Defendant acknowledges this fact but raises the issue in order to preserve it for possible federal review.
We decline to follow People v. Nguyen (2007) 152 Cal.App.4th 1205, in which the Sixth District recently held that a juvenile adjudication could not be used as a strike. A petition for review in Nguyen currently is pending in the California Supreme Court (S154847).
Motion to Strike
Prior to sentencing, defendant filed a motion to strike his two priors pursuant to section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The first strike was a juvenile adjudication for robbery committed when defendant was only 16 years of age. The second strike was a prior conviction for assault with a deadly weapon committed when defendant was 19 years old. Defendant contends the trial court abused its discretion in denying his motion to strike. We disagree.
Prior to ruling on defendant’s motion to strike, the trial court noted that while his strike convictions were committed a long time before his current offenses, “defendant has not led a blameless life in the interim.” The court detailed defendant’s lengthy criminal history, which included multiple crimes of violence, drug-related offenses, a prior conviction for resisting arrest (§ 148, subd. (a)(1)), and a prior conviction for resisting an executive officer (§ 69). The court also noted that defendant currently was on probation for battery against two separate female victims.
The court observed that defendant’s “current offense is part of a pattern of general violence and specific acts against peace officers, having been previously convicted for section 69 and 148(a)(1) of the Penal Code.” The court continued: “Defendant’s conduct shows a disdain for authority, and he is prepared to use violence when confronted with his antisocial behavior. [¶] Defendant is 31 years of age. His original offenses, although very serious, might be attributed to his youth. However, he has engaged in a continuous course of conduct without any significant break in criminal behavior. He has a lengthy criminal history that is relentless and his free use of force when it suits him. There is no indication that as the defendant has aged his criminal inclinations have declined in frequency or severity.”
The trial court further explained: “While the defendant has the support of adult siblings and is reported to have minor children, there is no evidence that the defendant has accepted financial or emotional responsibility for his dependents. Despite family support, defendant continues to engage in criminal activity. The court is not convinced the defendant would benefit from anger management or drug counseling because of his history. His prospects for success are outweighed by the likelihood of his continued danger to others, including himself.
“I see no demonstrative prospects that defendant will live a stable and law abiding life. The contrary has been the known history of this defendant. There is no reason things will be different.”
The trial court having considered the nature and circumstances of defendant’s current offense and his prior strikes, as well as his background, concluded that defendant did not fall outside the spirit of the three strikes law. (People v. Williams (1998) 17 Cal.4th 148, 161.) In so concluding, the court did not abuse its discretion.
Presentence Credits
The trial court determined that defendant was not entitled to presentence conduct credits because he was sentenced to an indeterminate term of imprisonment. Defendant contends, and the People concede, that the trial court erred in this regard.
The three strikes law does not address presentence conduct credits for those defendants sentenced under its scheme. (§§ 667, subd. (c)(5); 1170.12, subd. (a)(5); People v. Thomas (1999) 21 Cal.4th 1122, 1125.) Rather, it only speaks to post-sentence conduct credits with which we are not here concerned. (§§ 667, subd. (c)(5); 1170.12, subd. (a)(5); Thomas, supra, at p. 1125.) Defendant, therefore, is entitled to presentence conduct credits. (People v. Hill (1995) 37 Cal.App.4th 220, 224-227; People v. Henson (1997) 57 Cal.App.4th 1380, 1385, fn. 5.)
Defendant’s current felony, a violation of section 69, is not a violent felony listed in section 667.5. As such, his presentence conduct credits are not limited under section 2933.1 to 15 percent of actual time. (People v. Philpot (2004) 122 Cal.App.4th 893, 908.) Rather, section 4019 governs the calculation of his presentence conduct credits. Such “credit is calculated under section 4019 ‘“by dividing the number of days spent in custody by four and rounding down to the nearest whole number. This number is then multiplied by two and the total added to the original number of days spent in custody.”’” (Ibid.)
Defendant spent 224 days in actual custody prior to sentencing. Using the calculation set forth above, defendant is entitled to presentence custody credits totaling 336 days, comprised of 224 actual time, plus 112 days of conduct credit. (People v. Philpot, supra, 122 Cal.App.4th at p. 908.) Modification of the abstract of judgment is required. (People v. Little (1993) 19 Cal.App.4th 449, 452.)
As observed in People v. Philpot, supra, 122 Cal.App.4th at pages 908-909, “[p]resentence conduct credits may not be used . . . to reduce either a minimum term of 25 years or a maximum term of life.” Accordingly, once defendant has served his minimum term of 25 years, the Board of Prison Terms may use his credits in determining the date of his release. (Id. at p. 909.)
DISPOSITION
The trial court is ordered to amend the abstract of judgment to reflect an award of 224 days of actual custody credit and 112 days of conduct credit, for a total precommitment credit of 336 days, and to forward a copy of the amended abstract of judgment to the Department of Corrections. In all other respects, the judgment is affirmed.
We concur: MALLANO, Acting P. J., ROTHSCHILD, J.