People v. Lacefield (157 Cal. App. 4th 249, 2007)

Opinion

FLIER, J.

Appellant Erick Darnell Lacefield was convicted of obstructing or resisting an executive officer in the performance of duty in violation of Penal Code section 69. He was sentenced to the midterm of two years in prison, after the trial court struck a prior strike conviction. He contends that the trial court committed reversible error when it refused to instruct on section 148, subdivision (a)(1) (section 148(a)(1)), as a lesser included offense of section 69. Section 148(a)(1) punishes, as a misdemeanor, the crime of resisting, delaying, or obstructing a peace officer in the performance of duty. We find merit in the contention, because section 148(a)(1) sets forth two different types of offenses (In re Manuel G. (1997) 16 Cal.4th 805 [66 Cal.Rptr.2d 701, 941 P.2d 880] (Manuel G.)), and section 148(a)(1) is a lesser included offense of the type of offense in section 69 on which the prosecution relied here. We further find that the error was prejudicial. We therefore reverse.

FACTS

1. Prosecution Evidence

Gardena Police Officers Mike Sargent, Matthew Hassoldt, William McReynolds, and Atanacio Jimenez testified for the prosecution. Around 11:00 p.m. on October 28, 2005, they responded to a disturbance call, along with about three other officers. According to the call, a person was standing outside of a bar, pointing a gun at passersby. That bar had been closed down in the past. Parolees sometimes lived in a hotel that was attached to it. There had been previous problems in that area with gangs, shootings, parole violations, domestic violence, and rock cocaine use.

When the officers arrived at the bar, they did not see anyone with a gun, but they saw an “out of control” situation that violated several provisions of the municipal code and Business and Professions Code. Loud music was coming from the bar’s open door. Approximately 50 people were standing in the parking lot drinking alcohol, laughing and talking. Numerous motorcycles were revving up their engines. As the officers approached, people ran into the bar leaving behind open containers of alcohol. The officers looked into the bar and saw that it was overcrowded. They decided to close it down and have everyone come outside.

People in the bar “were very upset” about being ordered to leave. Officer Sargent was posted outside, with his back to the backdoor, to stop people from reentering. Officers Hassoldt and Jimenez stood five or six feet away from Sargent. Officer McReynolds, who was a K-9 officer, was positioned on the sidewalk with his dog.

Appellant walked toward Sargent from outside the bar. Sargent thought appellant might have a weapon due to the nature of the area, the call about a gunman, and the fact appellant held his hands inside of his jacket pockets. At some point, he observed that appellant smelled strongly of alcohol. He told appellant that no one was allowed to reenter the bar. Appellant told Sargent, “You can’t stop me from going in there.” He continued toward the officer, ignoring commands to stop. Sargent put his right hand against appellant’s chest and tensed it. Appellant slapped Sargent’s hand off his chest and continued walking toward him.

Sargent thought that appellant intended either to assault him again or to try to reenter the bar. Using the palms of his hands, he pushed appellant in the chest, which caused appellant to take “a few steps back.” Appellant brought his arms to his sides, clenched his fists, and ducked his head down as if preparing to charge. Sargent put his hands and forearms on appellant’s back and shoulders. Appellant lunged at Sargent and reached for his legs trying to tackle him. Sargent stepped to the side and kneed appellant in the face. Appellant fell to the ground facedown. Sargent fell down on top of him.

As appellant and Sargent struggled on the ground, Officers Hassoldt and Jimenez came to Sargent’s assistance. Appellant flailed his body, struggled to raise himself from the ground, and ignored commands to stop resisting. At some point, Sargent kneed appellant in the face and Jimenez put his knee into appellant’s back. Meanwhile, Officer McReynolds and his dog prevented the hostile crowd of people from approaching.

After one or two minutes, appellant was handcuffed and arrested. He did not have a weapon. His eyes were bloodshot and watery, and his speech was slurred. Before he was booked, he received treatment at a medical clinic for a swollen and abraded eye.

Sargent specifically testified that appellant’s actions deterred him from performing his duty as a police officer, because when he was supposed to be guarding the door, he had to wrestle appellant to the ground.

2. Defense Evidence

Three defense witnesses gave different versions of the incident.

Neilson Williams testified that he stepped outside the door of the bar when instructed to do so. An officer grabbed him by the shirt at chest level and told him to stay where he was. Williams asked the officer why his shirt had been grabbed. Appellant “kind of casually” approached. The officer rushed toward appellant, grabbed him, wrestled with him, and hit him with a baton. Once appellant was on the ground, other officers hit him with batons and kicked him. Williams never saw appellant slap at, charge, or grab any officer.

Yvette Todaro, the owner of the bar, testified that she was talking to an officer outside the bar after the police closed it down. She noticed appellant standing at the doorway about six feet away. She did not see him hit or push an officer. She saw an officer stand in front of him and saw him fall to the ground with the officer, but did not see what happened between them before they fell.

Marcus Bell testified that he was standing outside the bar when the officers arrived. He saw appellant arrive, after the officers had ordered everyone to leave the bar. An officer pushed Williams, who told the officer not to put his hands on him. Appellant walked up and politely asked the officer if he could enter. The officer told appellant that no one was going inside. Appellant said, “Why can’t nobody go in the club? We ain’t gotta leave.” The officer pushed appellant twice. Appellant held his hands out as he said, “What you doing? What you doing?” The second push caused him to fall to the ground. When he was on the ground, more officers assisted the first officer in holding him there. One officer held his knee in appellant’s neck, another held his legs, and another punched him in the face, five or six times.

3. Prosecution Rebuttal Evidence

Sargent testified that none of the officers used batons, and appellant was the only person he touched.

DISCUSSION

1. The Relationship Between Sections 69 and 148(a)(1)

The issue is whether appellant was entitled to a requested instruction on section 148(a)(1), in addition to section 69. To resolve that issue, we must decide if section 148(a)(1) is a lesser included offense of the second type of offense in section 69. Our analysis of that issue causes us to part company with People v. Belmares (2003) 106 Cal.App.4th 19 [130 Cal.Rptr.2d 400] (Belmares), disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228 [45 Cal.Rptr.3d 353, 137 P.3d 184].

Section 148(a)(1) states, in pertinent part: “(a)(1) 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.” (See generally 2 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Crimes Against Governmental Authority, § 18, pp. 1103-1104.)

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.” (Italics added.)

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.” (Manuel G., supra, 16 Cal.4th at p. 814; see generally 2 Witkin & Epstein, Cal. Criminal Law, supra, Crimes Against Governmental Authority, § 119, pp. 1212-1213.) The two ways of violating section 69 have been called “attempting to deter” and “actually resisting an officer.” (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530 [29 Cal.Rptr.3d 586] (Lopez).) We refer to them as “the first type of offense” and “the second type of offense,” as that is the nomenclature used throughout Manuel G.

In Manuel G., the minor made a threat to a sheriff’s deputy, indicating that he and his “ ‘home boys’ ” were going to “ ‘start killing’ ” deputies, if the deputies did not leave them alone. (Manuel G., supra, 16 Cal.4th at pp. 819-820.) The case was prosecuted under the first type of offense in section 69, but the opinion discussed both types of offenses in section 69. It explained that the two types of offenses have different elements. The first type of offense can be established by “[a] threat, unaccompanied by any physical force.” (16 Cal.4th at p. 814.) It may involve “attempts to deter either an officer’s immediate performance of a duty imposed by law or the officer’s performance of such at duty at some time in the future.” (Id. at p. 817.) If the threat is to deter the officer’s performance of duty at a later time, “only the future performance of such duty must be lawful,” that means it is unnecessary to decide whether the officer was lawfully performing duty at the time the threat was made. (Ibid.) For the second type of offense, the resistance must include “force or violence,” and the officer had to be lawfully engaged in the performance of duty at the time of the defendant’s resistance. (Id. at pp. 815-816.)

The accusatory pleading here alleged both types of offenses in section 69, but the prosecutor expressly relied on the second type of offense, based on appellant’s use of force. The jury was therefore given Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 2652, which set forth the elements of the section 69 offense as: “1. The defendant unlawfully used force or violence to resist an executive officer, [][] 2. When the defendant acted, the officer was performing his lawful duty; [1] AND [][] 3. When the defendant acted, he knew the executive officer was performing his duty.” The jury was further instructed that the police officers in this case were executive officers, for the purpose of the crime.

Defense counsel asked that the jury also be given CALJIC No. 16.102. It names the elements of section 148(a)(1) as: “1. A person willfully resisted, delayed, or obstructed a [peace officer] [public officer] [_]; [