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People v. Tovar

California Court of Appeals, Fourth District, Second Division
Jan 27, 2012
No. E053156 (Cal. Ct. App. Jan. 27, 2012)

Opinion

NOT TO BE PUBLISHED

APPEAL from the Superior Court of San Bernardino County, No. FWV1002452, Shahla Sabet, Judge. Affirmed.

Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Emily R. Hanks, Deputy Attorneys General, for Plaintiff and Respondent.


RAMIREZ, P. J.

A jury convicted defendant and appellant Salvador Hernandez Tovar of forcibly resisting an executive officer (Pen. Code, § 69) and possessing a device for smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a)). The trial court found that defendant had a single prison prior (Pen. Code, § 667.5, subd. (b)) and imposed the upper term of three years for the resisting an executive officer count, plus an additional one year for the prison prior. Defendant contends the jury should have received additional instructions to facilitate a self-defense theory. We affirm.

BACKGROUND

At a pretrial conference, defendant’s trial counsel told the trial court he would be “asking for a self-defense jury instruction, ” he was proceeding with a mistaken identity defense, and an alternative defense that “whoever it was defended himself that night.” The trial court concluded the hearing by asking counsel to prepare instructions, including self-defense.

A police officer testified that around 2:00 a.m. on August 30, 2010, he noticed that a pickup truck was missing its rear license plate and attempted to initiate a traffic stop. The area was “known to be a high-crime area in the city.” By the time the officer caught up to the truck, it had parked. The officer noticed defendant 10 to 15 feet away from the truck. No one else was in the area, and the officer was by himself. Suspecting that the truck was stolen, the officer asked defendant to have a seat on the curb. Defendant responded, “What for?” The officer “told him to have a seat and that [he] would explain everything to him.” Defendant responded, “What for? What for?” and started walking backward. Defendant then started to turn away from the officer. The officer grabbed defendant’s right wrist and attempted to put defendant’s hands behind his back to do a patdown. Defendant swung around with his left hand and attempted to strike the officer. The officer pushed defendant and avoided being hit. Defendant turned to run away; the officer grabbed the collar of defendant’s shirt, the shirt ripped, and defendant ran away. Subsequently, the officer determined the truck had not been reported stolen; defendant was one of the two registered owners. Additionally, a methamphetamine pipe was found on the front seat of the truck.

Defendant testified that at the time of the incident he was at home sleeping.

Based upon the testimony, the trial court stated it would instruct on the lesser included offense of resisting a peace officer. (Pen. Code, § 148, subd. (a).) As to the self-defense instructions, the trial court stated: “First of all, he said it wasn’t him. He was sound asleep, so self-defense is not going to be an issue. [¶] Even excessive force is not going to be an issue now, because he changed the defense. Before it was possible self-defense, and now it is like he wasn’t even there, so he doesn’t even get excessive force instructions.”

The jury was instructed that the officer was not lawfully performing his duties as a peace officer if he was unlawfully detaining someone or using unreasonable or excessive force in performing his duties. However, the jury was only given an instruction on when a peace officer may legally detain someone, and not instructed on what constituted excessive force.

DISCUSSION

Defendant contends there was substantial evidence that he was lawfully resisting excessive force and was thus entitled to additional instructions. Defendant further contends that the lack of additional instructions deprived him of his state and federal rights to due process and a fair trial. We find no substantial evidence of excessive force and therefore do not address defendant’s additional contentions or what particular instructions should have been provided.

“The trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citation.] ‘ “The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.’ ” [Citations.] The trial court must instruct on a defense that is supported by substantial evidence if the defendant is relying on that defense or the defense is not inconsistent with the defense theory of the case. [Citations.] In assessing the evidence to determine whether to give a requested instruction, the trial court should not measure the substantiality of the evidence by weighing the credibility of the witnesses. That duty is within the exclusive province of the jury. However, if the evidence is minimal and insubstantial, then the court need not instruct on its effect. [Citation.]” (People v. Zamani (2010) 183 Cal.App.4th 854, 885.) “ ‘Substantial evidence is evidence sufficient to “deserve consideration by the jury, ” that is, evidence that a reasonable jury could find persuasive.’ [Citation.]” (People v. Lewis (2001) 25 Cal.4th 610, 645.) Whether an officer is acting lawfully is an issue of objective fact and not based upon a defendant’s subjective understanding of what the officer was doing. (See People v. Jenkins (2000) 22 Cal.4th 900, 1020-1021.) Thus, to trigger additional instructions permitting a theory that defendant was defending himself from excessive force, substantial evidence of excessive force was required; it is not enough that defendants perceive themselves to be at risk of excessive force.

Here, the officer was alone and defendant was avoiding interacting with him. The officer initiated physical action, to pat defendant down, by grabbing defendant’s wrist. This limited and legitimate use of physical force does not provide a persuasive basis for a jury to consider the use of force as being objectively excessive and thus permit defendant’s physical resistance. Accordingly, we find no error in the trial court’s denial of additional instructions.

DISPOSITION

The judgment is affirmed.

We concur: MILLER, J., CODRINGTON, J.


Summaries of

People v. Tovar

California Court of Appeals, Fourth District, Second Division
Jan 27, 2012
No. E053156 (Cal. Ct. App. Jan. 27, 2012)
Case details for

People v. Tovar

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. SALVADOR HERNANDEZ TOVAR…

Court:California Court of Appeals, Fourth District, Second Division

Date published: Jan 27, 2012

Citations

No. E053156 (Cal. Ct. App. Jan. 27, 2012)