Opinion
D072824
12-18-2018
THE PEOPLE, Plaintiff and Respondent, v. COREY TYLER CROMER, Defendant and Appellant.
Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. JCF36924) APPEAL from a judgment of the Superior Court of Imperial County, William D. Lehman, Judge. Affirmed in part, reversed in part, and remanded with directions. Lynelle K. Hee, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson and Allison V. Acosta, Deputy Attorneys General, for Plaintiff and Respondent.
While being booked at county jail, defendant Corey Tyler Cromer pushed, scratched, and tried to bite and kick two correctional officers. Cromer testified in his defense at trial, claiming he was attacked by multiple officers while complying with Officer Debbie Trevino's instructions during a pat down search. A jury convicted him on count 1 of misdemeanor assault (Pen. Code, § 240), a lesser included offense of assault on a custodial officer (Pen. Code, § 241.1). It also convicted him on count 2 of resisting an executive officer (§ 69), a felony.
Further statutory references are to the Penal Code unless otherwise indicated.
Cromer challenges his conviction on count 2, arguing the court prejudicially erred by failing to instruct the jury that assault and/or battery were lesser included offenses of section 69. As we explain, we agree based on People v. Brown (2016) 245 Cal.App.4th 140 (Brown) and conditionally reverse that conviction. Turning to Cromer's second argument, we reject his instructional error claim as to count 1. In addition to instructing that self-defense applied to the "crimes charged," the court instructed jurors that simple assault was a "lesser included charge" on count 1. Viewing the instructions as a whole, it is not reasonably likely the jury believed it could not find self-defense to acquit Cromer of simple assault on count 1.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2016 on an unrelated case, Cromer pled no contest to unlawfully driving or taking a vehicle (Veh. Code, § 10851, subd. (a)) and resisting an executive officer (§ 69), and the court placed him on formal probation. (People v. Cromer (Super. Ct. Imperial Cty., 2016, No. JCF36617).) A month later, the probation department filed a petition for revocation, alleging that Cromer failed to obey all laws and failed to report pending criminal investigations to probation. The conduct precipitating the revocation petition is what led to the charges in this case.
On September 19, 2016, Officer John Cesena of the El Centro Police Department arrested Cromer and transported him to county jail. Cromer flailed his arms and locked his legs as officers attempted to get him into the vehicle. But he did not struggle during the drive to county jail. Cesena placed Cromer in standard-issue handcuffs that made it impossible for him to move his hands more than an inch-and-a-half apart.
The parties stipulated that Cromer was lawfully arrested.
After reaching the Imperial County Sheriff's jail, correctional officer Debbie Trevino received Cromer to book him into custody. She took Cromer to a secure room with a desk and five blue chairs to complete his medical screening intake and search procedure. After Cromer was medically cleared, Trevino began her pat-down search. Because she was still a trainee, Officer Alfredo Rocha was present as support.
Trevino told Cromer to place his hands (handcuffed behind him) on the back wall. Cromer did not comply with each of her three requests. Accordingly, Trevino "escorted his hands to the wall" a foot away, using a grip strength of 5 out of 10. Trevino explained that as a general matter, officers were trained to use appropriate force if an arrestee did not comply with verbal commands. At 5 feet, 4 inches, she weighed 115 pounds; Cromer was larger.
When Trevino put Cromer's hands on the wall, he "immediately pushed off the wall," causing her to lose her balance. Trevino attempted to grab Cromer's back but lost her grip; Cromer then turned his body and faced her squarely. At that point, Rocha stepped in. He grabbed Cromer and, without striking him, tried to "escort him to the blue chairs" a couple of steps away. Cromer pushed back on Rocha, causing both to fall to the ground near the chairs. Trevino bent over and tried to grab Cromer by the arms. Cromer turned toward Trevino, reached for her hand, and attempted to bite her forearm. He managed to scratch her left forearm, drawing blood. Kicking his legs, Cromer hit Rocha but not Trevino.
With Cromer still struggling, five backup officers arrived. Correctional officer Carlos Ramos was among them. Ramos entered to find Trevino, Rocha, and a resisting Cromer "kind of in the blue chairs." He helped them secure Cromer on the ground. It ultimately took six officers to make Cromer responsive to commands. Ramos held down Cromer's head while others held down his limbs. At no point did the officers strike Cromer or use illegal holds to regain control. They did not use mace, pepper spray, or a Taser. Cromer was eventually searched and booked. Trevino sustained bruises near her elbow and was later treated for the scratch.
Cromer presented a vastly different account of his booking. He claimed he was complying with Trevino's request to place his hands on the wall when four or five officers suddenly attacked him, slamming him into the chairs. According to Cromer, the officers continued to hit and punch him after he landed on the chairs. Cromer recalled Rocha hitting him on the cheek but conceded his booking photo showed no marks. He denied fighting, biting, kicking, or pushing back at any point.
The Imperial County District Attorney charged Cromer by amended information with assault on a custodial officer (§ 241.1, count 1) and resisting an executive officer (§ 69, count 2). Count 1 named Trevino as the victim. Although count 2 did not reference a particular peace officer, the prosecution's opening and closing arguments and jury instructions on that charge made clear that it rested solely on the same conduct toward Trevino that also supported count 1. The prosecution examined Cesena, Trevino, and Ramos (but not Rocha); Cromer testified in his own defense.
During deliberations, the jury sent a note requesting, "count 1 and count 2 Penal Code descriptions on [the] complaint." The court reiterated general instructions that it was the jury's role to apply the facts to the law as provided in the instructions, without considering extraneous evidence or documents. The jury returned a verdict finding Cromer not guilty of violating section 241.1 but guilty of misdemeanor assault (§ 240), a lesser included offense of count 1. On count 2, the jury convicted Cromer of violating section 69.
On September 19, 2017, the court sentenced Cromer to an upper term of three years on count 2, with 732 days of presentence credit applied to both counts. The court split the term on count 2 to require two years in local prison and one year of mandatory supervision. (§ 1170, subd. (h)(5)(B).) After applying presentence credits, Cromer was released the next day.
The court did not specifically address the assault conviction on count 1. Assault is "punishable by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or by both the fine and imprisonment." (§ 241, subd. (a).)
DISCUSSION
Citing Brown, supra, 245 Cal.App.4th 140, Cromer argues the court erred by not instructing the jury that assault and battery were lesser included offenses of section 69. Pointing to the jury's conviction of the lesser offense on count 1, he argues this error was prejudicial. Because we agree with Cromer on this point, we do not reach his alternative argument that his conviction on count 1 must be reversed because it is a lesser included offense of resisting an executive officer. Finally, we reject his claim of instructional error as to count 1. Considering the instructions as a whole, there is no reasonable likelihood the jury believed it could not consider whether Cromer acted in self-defense when it convicted him of assault. 1. Instructional error requires reversal as to count 2.
Cromer contends the trial court erred in failing to instruct the jury that assault and battery were lesser included offenses of the charged offense in count 2, resisting an executive officer with force or violence (§ 69). During the unreported conference on jury instructions, the parties agreed "that there are no lesser offenses that apply to count 2" and that assault was a lesser offense to count 1.
"[E]ven absent a request, and even over the parties' objections, the trial court must instruct on a lesser offense necessarily included in the charged offense if there is substantial evidence the defendant is guilty only of the lesser." (People v. Birks (1998) 19 Cal.4th 108, 118 (Birks).) We independently review whether the court erred by failing to instruct on a lesser included offense. (People v. Souza (2012) 54 Cal.4th 90, 113.)
There are two tests for determining whether an uncharged crime is a lesser included offense. "Under the elements test, a court determines whether, as a matter of law, the statutory definition of the greater offense necessarily includes the lesser offense." (People v. Parson (2008) 44 Cal.4th 332, 349.) "Under the accusatory pleading test, a court reviews the accusatory pleading to determine whether the facts actually alleged include all of the elements of the uncharged lesser offense; if it does, then the latter is necessarily included in the former." (Ibid.; see Birks, supra, 19 Cal.4th at pp. 117-118.)
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) "A battery is any willful and unlawful use of force or violence upon the person of another." (§ 242.) Section 69 prohibits one 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 . . . ." (§ 69, subd. (a).)
Because "section 69 can be violated in two separate ways," one of which includes attempting to prevent an officer from performing his or her lawful duty by threat rather than by physical force, neither assault nor battery is a lesser included offense under the statutory elements test. (See Brown, supra, 245 Cal.App.4th at p. 152.) Cromer does not argue otherwise. Instead, he claims assault and battery are lesser included offenses of section 69 under the "accusatory pleading" test. The People properly concede this point.
The amended information alleged that Cromer violated section 69 because he "did willfully and unlawfully attempt by means of threats and violence to deter and prevent . . . 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." (Italics added.) Because the information alleged both forms of the offense in the conjunctive, it was not possible to violate section 69 without also committing an assault and a battery. (Brown, supra, 245 Cal.App.4th at p. 153.) Accordingly, assault and battery were necessarily lesser included offenses of section 69 pursuant to the accusatory pleading test. (Ibid.)
Nevertheless, the People maintain that there was no instructional error because there was no substantial evidence to support conviction on the lesser offenses. Presenting a novel theory on appeal that count 1 rested on Cromer's actions against Officer Debbie Trevino, whereas count 2 rested on his acts of "kicking and resisting the officers more generally," the People contend that the evidence at trial either supported conviction under section 69 or outright acquittal.
As a general principle, a criminal defendant is "entitled to have the validity of [his] convictions appraised on consideration of the case as it was tried and as the issues were determined in the trial court." (Cole v. Arkansas (1948) 333 U.S. 196, 202; see People v. Kunkin (1973) 9 Cal.3d 245, 251 ["We, of course, cannot look to legal theories not before the jury in seeking to reconcile a jury verdict with the substantial evidence rule."].) Here, the prosecution's opening statement and closing arguments focused exclusively on Cromer's acts toward Trevino, asserting "She's a peace officer"; "she was performing her lawful duties"; and Cromer "knew that she was performing her duty." (Italics added.) The court used the pronoun "her" in instructing the jury with CALCRIM No. 2652. The jury was not presented with any evidence that any officer besides Trevino was female. Indeed, the court clarified that "[t]he People have the burden of proving beyond a reasonable doubt that Officer Debbie Trevino was lawfully performing her custodial duties as a custodial officer" in relation to count 2. (Italics added.) Because we evaluate the evidence as presented to the jury, we must reject the People's novel contention that counts 1 and 2 rested on distinct conduct.
Turning to the merits of the People's claim, it is squarely at odds with Brown, supra, 245 Cal.App.4th 140. Because our analysis turns on Brown, we discuss the case in some depth. Sixty-seven-year-old Wilbert Brown was riding his bicycle on a sidewalk with earphones and without a bike light. He attempted to flee when an officer yelled at him to stop. Two officers pursued Brown, cornered him in a parking lot, and tackled him. (Id. at p. 146.) At trial, the officers testified that after he was tackled, Brown sat up and began swinging at them with closed fists, prompting them to gain control using four " 'compliance strikes.' " (Id. at pp. 146-147.) Brown testified that he never attempted to strike the officers, but one had attacked him unprovoked with enormous force like "Superman" after Brown fell off his bike. (Id. at p. 147.)
Brown was convicted of resisting an officer under section 69. On appeal, he argued the court should have instructed the jury on simple assault as a lesser included offense. (Id. at p. 151.) As they do here, the People responded that there was insufficient evidence to support an instruction. They claimed the jury faced two choices: accept the officers' version and convict Brown of resisting an executive officer or accept Brown's version and acquit him entirely. (Id. at pp. 150, 153.)
Rejecting that dichotomy, the Brown court found instructional error. As it explained, "the jury was not required to choose and fully credit only one of the two versions of the November 2011 incident that were presented to it. For example, the jury could also have concluded that Brown used excessive force or violence to resist arrest only in response to the officers' unreasonable force. Under that scenario, Brown could have been found not guilty of the section 69 violation, but still guilty of the lesser crime of assault." (Id. at p. 154.)
The People try to distinguish Brown on the basis that the defendant was "unhandcuffed" and "continued swinging his clenched fists when approached by one officer . . . ." They imply there was evidence in Brown, as opposed to in this case, from which a reasonable jury could find that the defendant there had also used unreasonable force in response to excessive force by the officers. If anything, however, we view the facts here supporting a possible lesser offense as stronger than in Brown. Cromer testified that he was complying with Trevino's requests to place his hands on the wall when Rocha made an unprovoked assault. The jury could credit this testimony and Ramos's later testimony that he encountered Cromer and two officers "in the blue chairs" to find that Rocha had applied unreasonable force. Nevertheless, the jury could also conclude that Cromer responded to this unreasonable force with unreasonable force of his own when he attempted to bite Trevino, kick her and Rocha, and scratch Trevino's forearm. Ramos's testimony that it took six officers to finally gain control over Cromer supports the notion that Cromer exerted unreasonable force.
"In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt.' " (People v. Salas (2006) 37 Cal.4th 967, 982.) We recognize that " '[s]ubstantial evidence is "evidence sufficient 'to deserve consideration by the jury,' not 'whenever any evidence is presented, no matter how weak.' " ' " (People v. Wilson (2005) 36 Cal.4th 309, 331.) Nevertheless here, as in Brown, there was substantial evidence from which the jury could have found improper or excessive use of force on both sides. "Without commenting on which version of events here was the more persuasive, the jury should have been given the option of finding him guilty of simple assault [or battery]." (Brown, supra, 245 Cal.App.4th at p. 151.)
Reversal is not required unless the failure to instruct on assault and/or battery was prejudicial. We review this claim under the state law harmless error standard. (Brown, supra, 245 Cal.App.4th at p. 154.) The trial court's failure to instruct sua sponte on lesser included offenses on count 2 does not require reversal unless a review of the entire record demonstrates a reasonable probability that the error affected the outcome. (Ibid.) A reasonable probability does not mean more likely than not, but rather a reasonable chance, or more than an abstract possibility. (Id. at p. 155.)
Here, the prejudice is more apparent than in Brown. Counts 1 and 2 rested on the identical course of conduct. By convicting Cromer of only the lesser included offense of assault on count 1, the jury harbored a reasonable doubt as to one of the three elements that distinguish simple assault from assault on a custodial officer—i.e., whether: (a) Trevino was lawfully performing her duties as a custodial officer; (b) Cromer reasonably should have known that Trevino was a custodial officer performing her official duties; and (c) Cromer did not act in self-defense. These three elements parallel the required elements for count 2—i.e., that (1) Cromer unlawfully used force or violence to resist an executive officer; (2) Trevino was performing her lawful duty; and (3) Cromer knew Trevino was performing her duty. On this record, the failure to instruct the jury on the lesser included offenses of assault and battery was prejudicial.
Given testimony that Cromer attempted to bite and kick Trevino after Rocha took him to the ground, there is substantial evidence to support a conviction for assault on count 2. (Brown, supra, 245 Cal.App.4th at p. 155.) In scratching Trevino, Cromer could likewise be convicted of battery. (See, e.g., People v. Williams (2001) 26 Cal.4th 779, 786 [" 'An assault is an incipient or inchoate battery; a battery is a consummated assault.' "].) " 'When a greater offense must be reversed, but a lesser included offense could be affirmed, we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense.' " (Brown, at p. 156.) On remand, the People have the option of retrying the section 69 charge along with a charge of simple assault and/or simple battery. (Id. at pp. 155-156.)
The parties do not address the extent to which the prohibitions on multiple conviction and multiple punishment under sections 954 and 654 may impact proceedings following remand. As noted, the People predicated counts 1 and 2 on the same course of conduct. Section 954 " 'authorizes multiple convictions for different or distinct offenses, but does not permit multiple convictions for a different statement of the same offense when it is based on the same act or course of conduct.' " (People v. Vidana (2016) 1 Cal.5th 632, 650; see People v. Brunton (2018) 23 Cal.App.5th 1097, 1099-1100 [discussing Vidana and vacating duplicative aggravated assault conviction predicated on the same conduct].) Moreover, "[w]hen section 954 permits multiple conviction, but section 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited." (People v. Reed (2006) 38 Cal.4th 1224, 1226 (Reed).) Because the issue has not been briefed, we express no opinion on the impact, if any, of these provisions following remand. 2. There was no instructional error as to count 1.
We likewise do not reach Cromer's alternative argument that his assault conviction on count 1 must be reversed because it is a lesser included offense of his conviction on count 2. "In general, a person may be convicted of, although not punished for, more than one crime arising out of the same act or course of conduct." (Reed, supra, 38 Cal.4th at p. 1226.) "A judicially created exception to the general rule permitting multiple conviction 'prohibits multiple convictions based on necessarily included offenses.' " (Id. at p. 1227.) But Reed holds that only the statutory elements test, not the accusatory pleading test, applies to decide whether this exception applies. (Id. at p. 1229.) Where a defendant is separately charged with the greater offense and an offense that was a necessarily included lesser under the charging document, he can be convicted of both. (Ibid.) Cromer argues that Reed's limitation is inapplicable because he was not charged with assault in count 1. He contends his conviction on count 1 must be reversed because assault is a lesser included offense of his conviction on count 2 under the accusatory pleading test. Given our conditional reversal on count 2, we need not address this alternative argument.
Cromer raises a separate challenge to his conviction on count 1. He contends the court erred by failing to instruct the jury on self-defense as applied to the lesser included offense of simple assault. He believes this error led the jury to believe it could not acquit him of assault. We find no error.
"In contrast to lesser included offenses, a trial court's duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited, arising 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' " (People v. Barton (1995) 12 Cal.4th 186, 195 (Barton).) "[T]o require trial courts to ferret out all defenses that might possibly be shown by the evidence, even when inconsistent with the defendant's theory at trial, would not only place an undue burden on the trial courts but would also create a potential of prejudice to the defendant." (Id. at p. 197.) Cromer did not rely on self-defense, and self-defense was inconsistent with his theory that he was attacked unprovoked and did not offer resistance. On these facts, the People correctly state that the court had no sua sponte duty to instruct on self-defense at all. (Id. at p. 195.)
Citing People v. Elize (1999) 71 Cal.App.4th 605, Cromer argues the jury "could have found the true facts lay somewhere between appellant's testimony and the officer's testimony." In Elize, a defendant who testified he accidentally fired his gun during an attack requested self-defense instructions and was erroneously denied them. (Id. at pp. 610, 615.) The court emphasized the basic distinction in Barton, supra, 12 Cal.4th 186: "As to lesser included offenses, the court must instruct . . . whenever there is substantial evidence to support the instruction. As to defenses, such as self-defense, the court must instruct sua sponte only if there is substantial evidence of the defense and the defense is not 'inconsistent with defendant's theory of the case.' " (Elize, at p. 615.)
In any event, there was no error in the failure to specifically reference self-defense in listing the elements of assault. We evaluate jury instructions as a whole, not parts of an instruction or a particular instruction in isolation. (People v. Young (2005) 34 Cal.4th 1149, 1202.) "The test we apply is whether there is a reasonable likelihood the jurors would have understood the instructions in a manner that violated a defendant's rights. [Citation.] In this regard, we presume that jurors are intelligent individuals who are capable of understanding instructions and applying them to the facts of the case before them." (People v. Hajek and Vo (2014) 58 Cal.4th 1144, 1246; see People v. Tate (2010) 49 Cal.4th 635, 696 ["we consider the instructions as a whole to determine whether there is a reasonable likelihood the jury was misled"].) " 'Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)
Applied here, there is no reasonable likelihood the jury understood the instructions in the strained manner Cromer suggests. The trial court instructed jurors on the elements of the three offenses: assaulting a custodial officer (CALCRIM No. 901), simple assault as a lesser included offense of count 1 (CALCRIM No. 915), and resisting an executive officer (CALCRIM No. 2652). The assault instructions stated: "Simple Assault is a lesser included charge of count 1." (Italics added.) After instructing on the elements of all three offenses, the court provided CALCRIM No. 3470, which stated, in part: "Self-defense is a defense to the crimes charged. The defendant is not guilty of those crimes if he used force against the officers in lawful self-defense." (Italics added.) The instructions indicated self-defense applied to all three offenses before the jury. Taken together, CALCRIM Nos. 3470 and 915 specifically instructed jurors that self-defense was a defense to the lesser charge of assault on count 1. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) Indeed, CALCRIM No. 200 specifically directed jurors to "[p]ay careful attention to all of these instructions and consider them together." (Italics added.)
Cromer's argument largely turns on the fact that he was not charged with simple assault in the accusatory pleading. Notwithstanding his claim that the simple assault instruction omitted specific reference to self-defense, we find no reasonable likelihood on our record that jurors interpreted the instructions as a whole to preclude considering self-defense as to that lesser charge. We disagree that CALCRIM No. 3517 "added further ambiguity by distinguishing between 'charged' crimes as opposed to the 'lesser' crime." Read in full, that instruction told jurors how to return a verdict on count 1, "in which a greater and lesser crime is charged." Although Cromer cites the jury's cryptic request for "Count 1 and Count 2 penal code descriptions on [the] complaint," the court responded to that request by telling jurors to rely on the instructions as "true statements of the law and . . . consistent with the Penal Code and the Information, which is the charging document, equivalent to a complaint."
In short, we reject Cromer's claim because there is no reasonable likelihood jurors believed they could not consider self-defense as to the lesser offense of simple assault on count 1.
DISPOSITION
Cromer's conviction on count 2 for violating section 69 is vacated. If the prosecution does not elect to retry Cromer on the charged offense, the trial court is directed to enter a new judgment reflecting a conviction on count 2 for the lesser included offense of simple assault (§ 240) or simple battery (§ 242) and resentence him consistent with this opinion. (See Brown, supra, 245 Cal.App.4th at p. 173.) In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR: McCONNELL, P. J. GUERRERO, J.