Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County No. 07CM7094 Steven D. Barnes, Judge.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
DAWSON, J.
INTRODUCTION
Appellant Vincent Garcia, an inmate at Corcoran State Prison, was convicted by a jury of count 1, battery upon a non-confined person (Pen. Code, § 4501.5), count 2, attempted battery upon a non-confined person (§§ 664, 4501.5), and count 3, attempting to deter or prevent executive officers from performing a duty imposed by law (§ 69), based on an incident where he refused to return to his cell, punched a correctional officer, and swung at and missed another officer. The jury also found he suffered two prior strike convictions. The court imposed consecutive third strike terms of 25 years to life for counts 1 and 2, and stayed the third strike term for count 3, for an aggregate term of 50 years to life.
All further statutory citations are to the Penal Code unless otherwise indicated.
On appeal, appellant contends the court failed to instruct the jury on the specific intent required for count 2, and for lesser included offenses for counts 2 and 3. We will find no prejudicial error.
Appellant was sentenced on March 26, 2008, and his notice of appeal was filed on May 27, 2008. Respondent does not challenge the timeliness of the notice pursuant to the “prison-delivery rule,” which provides that a prisoner’s notice of appeal is deemed timely filed if delivered to prison authorities within the 60-day filing period set forth in the California Rules of Court. (In re Jordan (1992) 4 Cal.4th 116, 118-120.)
FACTS
Appellant was assigned the job of a porter, to mop and sweep the floors at the prison. Around 7:15 p.m. on June 3, 2006, appellant was working in the dayroom and Correctional Officer Robert Cummings was in the elevated control booth. Appellant tried to get Cummings’ attention because he wanted to use the telephone. Appellant stood on a table, waved his arms, and threw laundry at the control booth window. Cummings told appellant to “go home,” which meant that he should return to his cell. Cummings repeated the order three or four times but appellant failed to comply.
Correctional Officer Alfredo Galindo was in an office below the control booth, and Cummings advised Galindo that appellant needed to return to his cell. Galindo went into the dayroom and called appellant into the office. Correctional Officer William Wilson was also in the office. Appellant stood in the office’s doorway and Galindo told him to return to his cell.
Appellant looked up to Officer Cummings in the control booth. Cummings again ordered appellant to return to his cell and appellant said to give him a reason. Appellant told Cummings, “‘[S]ometimes you act like a bitch, sometimes you act okay. If you want to come down from there, we could go into the storage room and handle this.’” Appellant also said, “‘I’m not like these fuckin’ Chesters in here. I’m not a punk.’”
Officer Wilson told appellant he “needed to take it home,” that he had to return to his cell. Appellant replied, “‘[Y]ou are gonna’ have to place me in cuffs and take me to the program office,’” where the sergeant was stationed. Wilson placed his right hand on appellant’s left upper arm with a minimum amount of pressure and said he was going to escort appellant to his cell, which was standard procedure if an inmate refused an order. Appellant said, “‘Don’t fuckin’ touch me.’” Officer Wilson asked appellant if he was threatening him, and appellant said no.
Appellant moved as if he was going to comply with the escort, but suddenly turned to his left, swung his clenched right fist at Officer Wilson, and punched him in the face. The force of the blow caused Wilson to release his hold on appellant’s arm.
Officer Galindo administered pepper spray at appellant’s face, and some of the spray blew back on Wilson and Galindo. Appellant swung a clenched fist at Galindo, but Galindo stepped back and avoided the punch. Wilson grabbed appellant around the neck and took him down to the floor. Appellant went down but kept swinging, got on top of Wilson, and repeatedly punched Wilson all over his upper body. Galindo got on top of appellant and gained control of his arms. Other officers responded to the office and put appellant in physical restraints.
Defense evidence
Daniel Wizar and Clarence Ramirez, fellow inmates and friends of appellant, both testified in his defense. Both testified that it was the officers who were the aggressors in their encounter with appellant.
Appellant testified he was serving time for robbery and first degree murder. He was working in the dayroom and needed to use the restroom. He tried to get Officer Cummings’ attention, but Cummings had an “attitude” and told appellant to go back to his cell. Appellant refused because he was the lead porter and just needed to use the restroom.
Appellant stayed in the dayroom and Officer Galindo called him into the office. Appellant went into the office and kept his hands behind his back. Galindo and Wilson told him to return to his cell, and Cummings again told him the same thing. Appellant refused and asked to go to the program office to speak to the sergeant. Wilson ordered him to his cell, appellant again asked to go to the program office, and Wilson said he would be placed in handcuffs. Appellant agreed, turned around, and put his hands behind him to be handcuffed.
Appellant testified Galindo pulled out the pepper spray can and shook it. Wilson put his hand on appellant’s left shoulder, and appellant said he did not have to do that. Galindo used the pepper spray on appellant’s face. Appellant turned away and the pepper spray hit Wilson. Appellant testified Wilson appeared scared because of the pepper spray, and Wilson punched appellant twice.
Appellant testified he tried to get out of the office because of the pepper spray, he went down to the floor, and denied that he kept fighting.
“Q. Well, you hit Wilson, that’s why you are here?
“[Appellant:] Yeah.
“Q. So you fought for a little while, right?
“[Appellant:] It happened so quick. When after [Wilson] hit me, he like took a couple of swings because he was already mased [sic] and all I did was I took—took—took two fast swings at him and at that time, he grabbed me in a choke hold ….”
Appellant testified that as he went down to the floor, his head almost hit the open door of a microwave oven that was kept in the office, and he stuck out his right hand and tried to close the door. Appellant denied that he tried to hit Officer Galindo or resisted the officers.
“Q. You say you didn’t put up any resistance, though; is that correct?
“[Appellant:] No, sir.
“Q. But you can’t explain how Officer Wilson got that shiner under his left eye?
“[Appellant:] Oh, okay. That was after I was mased [sic] and then Officer Wilson hit me two times and I backed away with mase [sic] in my eyes and I just swung two times. I didn’t know where he got hit at.”
Appellant testified the pepper spray hit him “point blank” in the face and he had to close his eyes.
“Q. But you were still able to swing at the officers after that?
“[Appellant:] I don’t know what I was swinging at.
“Q. But you were swinging?
“[Appellant:] I was swinging—I just swung two times at him.
“Q. Did you swing at Officer Galindo?
“[Appellant:] No, sir.
“Q. Was Officer Galindo lying when he told us that?
“[Appellant:] He might have thought I was swinging at him when I was trying to close the [microwave] door.”
Appellant testified Wilson grabbed him in a choke hold and headlock, he went down, and he did not keep fighting. Appellant was placed in handcuffs and Galindo kicked his right side while he was still on the floor. Appellant told Galindo that he didn’t have to do that, and Galindo kicked him in the face. Appellant suffered cuts and bruises from being punched and kicked. Appellant testified he did not swing at the officers first, but admitted he resisted their orders to return to his cell because he wanted to go to the program office.
DISCUSSION
I. The jury was properly instructed on specific intent for count 2
Appellant contends the court failed to instruct the jury as to the specific intent required for count 2, attempted battery upon a non-confined person, Officer Galindo (§§ 664, 4501.5). We determine whether a jury is properly instructed from the entire charge of the court, not from consideration of parts of an instruction or from particular instructions. (People v. Hughes (2002) 27 Cal.4th 287, 360; People v. Castillo (1997) 16 Cal.4th 1009, 1016.) The absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. (People v. Castillo, supra, at p. 1016.) Accordingly, to prevail on a claim that the jury instructions were misleading, the defendant must prove a reasonable likelihood that the jury misunderstood the instructions as a whole. (People v. Van Winkle (1999) 75 Cal.App.4th 133, 147.) We assume jurors are intelligent persons capable of understanding and correlating all jury instructions given. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.)
The parties agree that count 2, attempted battery on a non-confined person, is a specific intent offense. “An attempt to commit a crime requires a specific intent to commit the crime. [Citation.] This is true ‘even though the crime attempted does not [require a specific intent].’ [Citation.]” (People v. Gutierrez (2003) 112 Cal.App.4th 704, 710.)
The entirety of the record reflects that the jury was initially instructed that count 2 was a general intent offense, but the court corrected the error and the jury was ultimately instructed on the requisite specific intent. In the initial instructions, the court gave CALCRIM No. 250 (Judicial Council of Cal. Crim. Jury Instns. (2008)), that the crimes charged in counts 1, 2, and 3, were general intent offenses and required proof of the union or joint operation of act and wrongful intent.
The court instructed the jury pursuant to the elements of count 1, battery upon a non-confined person, Officer Wilson. (CALCRIM No. 2723.) The court then turned to the elements of count 2, attempted battery upon a non-confined person, Officer Galindo.
“To prove [appellant] guilty of the crime charged in Count 2, the People must prove that:
“[Appellant] took a direct but ineffective step toward committing [section] 4501.5 …;
“And [appellant] intended to commit [section] 4501.5 ….
“A direct step requires more than merely planning or preparing to commit [section] 4501.5 …. A direct step indicates a definite and unambiguous intent to commit [section] 4501.5 .…
“To decide whether [appellant] intended to commit [section] 4501.5 …, please refer to the separate instructions that I will give you on that crime.
“[Appellant] may be guilty of attempt even if you conclude that [section] 4501.5 … was actually completed.” (CALCRIM No. 460.)
The court continued with the elements of count 2:
“[Appellant] is charged in Count 2 with attempted battery on someone who was not a prisoner in violation of … section 4501.5.
“To prove that [appellant] is guilty of this crime, the People must prove that:
“[Appellant] willfully touched Mr. Alfred Galindo in a harmful or offensive manner;
“When he acted, [appellant] was serving a sentence in a California state prison;
“Mr. Alfred Galindo was not serving a sentence in state prison;
“And, [appellant] did not act in self-defense.
“Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
“The slightest touching can be enough to commit a battery if it is done in a rude or angry way. Making contact with another person, including through his or her clothing, is enough. The touching does not have to cause pain or injury of any kind.” (CALCRIM No. 2723.)
The court completed the instructions and the jury began deliberations at 10:41 a.m. on February 27, 2008.
At 3:23 p.m. on the same day, the bailiff advised the court that the jury had reached a verdict. However, the court recognized that it had erroneously given the general intent instruction as to count 2 and placed the following on the record in the jury’s absence.
“[The Court]: … Based on our discussions in chambers, it had been determined that the second count is a specific intent count. It’s the Court’s intention to give the jury [CALCRIM] Instruction Number 251. It would still be the Court’s intention to ask the jury to come in, give them jury Instruction 251, read it as I’ve given you a copy of it. It only applies to Count 2, and that irrespective of their verdict, direct that they go back into the jury room, reconsider their verdict no matter what their verdict may be based upon this instruction on specific intent as to Count 2.”
Defense counsel agreed with the court’s decision. The court directed the bailiff to bring the jury into the courtroom but to leave the verdict forms in the jury room.
The jury returned to the courtroom and the court instructed as follows:
“[W]e have one more thing we need to do.…
“[T]hrough inadvertence …, one instruction was inadvertently omitted, all right? This instruction specifically relates to Count 2 of the information.…
“I’m going to redo this instruction irrespective as to whether or not you have reached a verdict as to Count 2. I am going to read you this instruction, direct that you take into consideration this instruction and determine what in fact you should do with respect to Count 2.
“This is Instruction Number 251, the Court will make it a part of the record and you will receive a copy of this to take with you into the jury room. The title of the instruction is union of act and intent, specific intent or mental state.
“Every crime charged in this case requires proof of the union or joint operation of act and wrongful intent except for the crime charged in Count 2.
“In order to be guilty of the crime of attempted battery on a non confined person, 664/4501.5, a person must not only intentionally commit the prohibited act, but must do so with a specific intent or mental state. The act and the intent or mental state required are explained in the instruction for this crime.
“That concludes this instruction. We will return you to the jury room. The bailiff will provide you with a copy of this instruction and I will ask you then to reconsider based on this instruction.” (Italics added.)
The jury then resumed deliberations and, at 3:33 p.m. on the same day, returned guilty verdicts for all counts.
The entirety of the record thus shows the court corrected the error and instructed the jury on the specific intent required for count 2. Appellant concedes the court gave the specific intent instruction just prior to the verdicts being returned, but speculates that “it is unlikely that the jurors diligently and seriously applied it to the facts.” In the absence of any contrary indication in the record, however, we must presume the jury followed the court’s instructions on this matter. (People v. Fauber (1992) 2 Cal.4th 792, 823; People v. Prieto (2003) 30 Cal.4th 226, 272-273.) There is no indication that the jury failed to follow the court’s charge to reconsider its verdict on count 2 based on the specific intent instruction.
Appellant further asserts that, while the court belatedly gave the specific intent instruction, that instruction “did not require the jury to find that [he] specifically intended to batter, i.e., strike or hit, Officer Galindo,” and the jury could have followed the instructions that defined count 2 and specific intent, and “found appellant guilty [of count 2] if he only willfully acted.”
As we have already explained, the absence of an essential element in one instruction may be supplied by another or cured in light of the instructions as a whole. (People v. Castillo, supra, 16 Cal.4th at p. 1016.) When the court reinstructed the jury as to specific intent, it also ordered the jury to refer back to the instructions which defined count 2. In defining the elements of count 2, the court instructed the jury that for the offense of attempted battery upon a non-confined person, Officer Galindo, the prosecution had to prove that appellant took a direct but ineffective step toward committing a violation of section 4501.5, and he intended to commit a violation of section 4501.5. (CALCRIM No. 460.) The entirety of the instructions thus reflect the jury was properly instructed as to the specific intent required for count 2.
II. Lesser included offense for count 2
Appellant’s jury was not instructed as to any lesser included or related offenses. He contends the court had a sua sponte duty to instruct on misdemeanor assault (§ 240) as a lesser offense included in the attempted battery upon a non-confined person charged in count 2 (§§ 664, 4501.5).
We begin with well-settled principles. “[A] lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118.) The court has a sua sponte duty to instruct on lesser included offenses “‘when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]’” (People v. Breverman (1998) 19 Cal.4th 142, 154-155.)
“[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is ‘“evidence from which a jury composed of reasonable [persons] could … conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Id. at p. 162.)
Appellant contends the court had a sua sponte duty to instruct on misdemeanor assault (§ 240) as a lesser included offense of count 2, attempted battery upon a non-confined person. As explained in part I, ante, count 2 was a specific intent offense.
The elements of simple assault are an unlawful attempt coupled with a present ability to commit a violent injury upon the person of another. (§ 240; People v. Yeats (1977) 66 Cal.App.3d 874, 878.) While an assault is a form of attempt, “criminal attempt and assault require different mental states. Because the act constituting a criminal attempt ‘need not be the last proximate or ultimate step toward commission of the substantive crime,’ criminal attempt has always required ‘a specific intent to commit the crime.’ [Citation.]” (People v. Williams (2001) 26 Cal.4th 779, 786.) In contrast, mere assault does not require a specific intent. (Id. at p. 787.) “The mens rea [for assault] is established upon proof the defendant willfully committed an act that by its nature will probably and directly result in injury to another, i.e., a battery.” (People v. Colantuono (1994) 7 Cal.4th 206, 214.)
A simple assault is “nothing more than an attempted battery.” (People v. Fuller (1975) 53 Cal.App.3d 417, 421.) Battery requires an actual touching, whereas assault is complete upon the attempted use of force or violence on the person even without an actual touching. (People v. Marshall (1997) 15 Cal.4th 1, 38-39; People v. Page (2004) 123 Cal.App.4th 1466, 1473.) A simple assault is an offense included within battery. (People v. Yeats, supra, 66 Cal.App.3d at p. 878.)
Assuming without deciding that simple assault is a lesser included offense of count 2, attempted battery, instruction on the former nonetheless was not required. This is because there was no evidence that appellant was guilty of the lesser offense but not of the greater. Officer Galindo testified that, after appellant punched Officer Wilson, Galindo administered pepper spray on appellant’s face, some of the spray blew back on Wilson and Galindo, appellant swung a clenched fist at Galindo, and Galindo stepped back and avoided the punch.
In contrast, appellant testified Galindo administered pepper spray in his face, the spray hit Wilson, and Wilson punched him twice. Appellant admitted he punched Wilson, and Wilson grabbed him in a choke hold. Appellant testified that as he went down to the floor, his head almost hit the open door of a microwave oven that was kept in the office, and he stuck out his right hand and tried to close the door. Appellant denied that he tried to hit Galindo and testified that Galindo “might have thought I was swinging at him when I was trying to close the [microwave] door.”
Appellant thus testified he only put out his hand to close the open door of a microwave oven so he would not hit his head, and that Galindo mistakenly believed his gesture was an attempt to throw a punch at him. Appellant’s testimony, if believed, established that he did not commit a simple assault, in that he did not willfully or purposefully attempt to commit a violent injury upon Galindo, and only tried to close the microwave door. His testimony, if believed, would have resulted in a not guilty verdict on that charge. No error occurred.
III. Lesser included offense for count 3
Appellant separately argues the court had a sua sponte duty to instruct on misdemeanor resisting or obstructing a peace officer (§ 148, subd. (a)(1)) as a lesser included offense of count 3, attempting to deter an officer in violation of section 69. While the legal principles as to lesser included offenses are well-settled, the resolution of this issue is necessarily dependent upon the unique nature of section 69, which defines two different offenses with different elements and intents.
In order to determine whether the court had a sua sponte duty to instruct on a lesser included offense for count 3, we must review section 69, the two different types of offenses defined by the statute, the information and instructions given in this case, and the prosecutor’s argument, to determine which violation of section 69 applied in this case, and whether misdemeanor resisting or obstructing is a lesser included offense to that type of offense defined by section 69.
A. Section 69
Appellant was charged in count 3 with violating section 69, which states:
“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.)
As demonstrated by the italicized language, 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. [Citation.]” (In re Manuel G. (1997) 16 Cal.4th 805, 814 (Manuel G.).) The two ways of violating section 69 have been called “attempting to deter” and “actually resisting an officer,” and have different elements. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1530 (Lopez).)
The first type of offense defined by section 69, attempting to deter, may involve either an officer’s immediate or future performance of a duty. (Manual G., supra, 16 Cal.4th at pp. 814, 817.) “Thus, for example, a person who telephones an off-duty officer at his or her home and threatens to kill the officer if he or she continues to pursue a lawful investigation the following day or week may be convicted of the first type of offense under section 69, even though the officer was not engaged in the performance of his or her duties at the time the threat was made.” (Id. at p. 817.)
“The central requirement of the first type of offense under section 69 is an attempt to deter an executive officer from performing his or her duties imposed by law; unlawful violence, or a threat of unlawful violence, is merely the means by which the attempt is made. [Citation.]” (Manuel G., supra, 16 Cal.4th at p. 815.)
The pattern instruction for the first method of violating section 69 is CALCRIM No. 2651, which states that the defendant is charged with “trying” to prevent or deter an executive officer from performing that officer’s duty, and that the elements are (1) the defendant willfully and unlawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer’s lawful duty, and (2) when the defendant acted, he or she intended to prevent or deter the executive officer from performing the officer’s lawful duty.
This first type of offense requires a specific intent to interfere with the executive officer’s performance of duties. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1153-1154; People v. Hines (1997) 15 Cal.4th 997, 1060; People v. Patino (1979) 95 Cal.App.3d 11, 27-28; Lopez, supra, 129 Cal.App.4th at p. 1530; People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9 (Roberts).) The surrounding circumstances may establish such specific intent. (In re M.L.B. (1980) 110 Cal.App.3d 501, 503.)
The second type of offense defined by section 69 “makes it a crime to ‘knowingly resist[], by the use of force or violence, [an] officer in the performance of his duty ….’” (People v. Hines, supra, 15 Cal.4th at p. 1062, fn. 16; People v. Lacefield (2007) 157 Cal.App.4th 249, 255 (Lacefield).) For the second type of offense under section 69, the resistance must include force or violence, and the officer must be lawfully engaged in the performance of duty at the time of the defendant’s resistance. (Manuel G., supra, 16 Cal.4th at p. 816; Lacefield, supra, at p. 255.) The second part of section 69 defines a general intent offense. (Roberts, supra, 131 Cal.App.3d at p. Supp. 9.)
The pattern instruction for the second aspect of violating section 69 is CALCRIM No. 2652, which defines the offense as “resisting” an executive officer in the performance of that officer’s duty. The elements are (1) the defendant unlawfully used force or violence to resist an officer, (2) when the defendant acted, the officer was performing his or her lawful duty, and (3) when the defendant acted, he or she knew the executive officer was performing his or her duty. (CALCRIM No. 2652; Lacefield, supra, 157 Cal.App.4th at pp. 255-256.) The Bench Notes for CALCRIM No. 2652 state the second aspect of violating section 69 is a general intent offense. (Judicial Council of Cal. Crim. Jury Instns. (2008) Bench Notes to CALCRIM No. 2652.)
Appellant contends that a lesser included offense of section 69 is section 148, subdivision (a)(1), which states:
“Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician … 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.” (Italics added.)
“The legal elements of a violation of section 148, subdivision (a) are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the officer was engaged in the performance of his or her duties, and (3) the defendant knew or reasonably should have known that the other person was a peace officer engaged in the performance of his or her duties. [Citations.]” (People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.) “The offense is a general intent crime, proscribing only the particular act (resist, delay, obstruct) without reference to an intent to do a further act or achieve a future consequence. [Citation.]” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329; Roberts, supra, 131 Cal.App.3d at p. Supp. 9.)
Appellant argues that misdemeanor resisting or obstructing is a lesser included offense of count 3 but fails to address the two different types of offenses defined by section 69.
B. Belmares and Lacefield
There is an apparent split of authority as to whether misdemeanor resisting or obstructing an officer in violation of section 148, subdivision (a)(1) is a lesser included offense of a violation of section 69. That split, however, ultimately can be reconciled based on the two different offenses described in section 69.
We note that in People v. Esquibel (1992) 3 Cal.App.4th 850, the Second Appellate District assumed without deciding that section 148 was a lesser included offense of section 69, but did not address the two ways in which section 69 can be violated. (Esquibel, at pp. 854-855.) In People v. MacKenzie (1995) 34 Cal.App.4th 1256, the Sixth Appellate District assumed without deciding that that section 148, subdivision (a)(1) was a lesser related offense of section 69; again, the court failed to address the two offenses defined within section 69. (MacKenzie, at pp. 1279-1280.)
In People v. Belmares (2003) 106 Cal.App.4th 19 (Belmares), disapproved on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228, this court held that misdemeanor resisting or obstructing was not a lesser included offense of violating section 69. In that case, the defendant argued he was improperly convicted of violating both section 69 and section 148, subdivision (a)(1), because misdemeanor resisting was a lesser included offense of section 69 and he could not be convicted of both greater and lesser offenses. (Belmares, at p. 22.) This court rejected that argument and held the defendant could be convicted of both offenses. In doing so, Belmares focused on the first method of violating of section 69, attempting to deter or prevent, and cases which interpreted only the first portion of section 69, but it did not specifically acknowledge that section 69 defined two different types of offenses. (Belmares, at p. 24.)
As we will discuss post, Belmares cited to the pattern instruction for a violation of section 69 without acknowledging that the instruction defined two different offenses with two different levels of intent. (Belmares, supra, 106 Cal.App.4th at p. 24.)
Belmares held that, under the statutory elements test, “resisting is not a lesser included offense of deterring since one can deter an officer’s duty in the future (§ 69) without resisting the officer’s discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1)). [Citation.]” (Belmares, supra, 106 Cal.App.4th at p. 24.)
As for the accusatory elements test, Belmares conducted an extensive analysis of the words “deter” and “prevent,” as used in the language defining the first type of offense in section 69, and “resist” and “obstruct,” as used in section 148, subdivision (a)(1), and held the misdemeanor offense was not a lesser included offense to section 69. (Belmares, supra, 106 Cal.App.4th at pp. 25-26.) Belmares concluded the defendant therein was properly convicted of violating both statutes because section 148, subdivision (a)(1) was not a lesser included offense of section 69.
In Lopez, the defendant argued the jury should have been instructed on misdemeanor resisting or obstructing in violation of section 148, subdivision (a)(1), as a lesser included offense of violating section 69. (Lopez, supra, 129 Cal.App.4th at pp. 1514, 1532.) The Sixth Appellate District agreed with Belmares that misdemeanor resisting was not a lesser included offense “because section 69 can involve a present attempt to deter an officer’s future duty. [Citation.]” (Lopez, supra, at p. 1532.)
Lopez also addressed the defendant’s argument that Belmares was distinguishable because the Belmares defendant was charged in the disjunctive, that he attempted to deter “or” did knowingly resist, whereas the information in Lopez used the conjunction “and” to allege violations of both aspects of violating section 69. (Lopez, supra, 129 Cal.App.4th at p. 1532.) Lopez rejected the distinction:
“When a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. [Citations.] … ‘When … the accusatory pleading describes a crime in the statutory language, an offense is necessarily included in the greater offense when the greater offense cannot be committed without necessarily committing the lesser offense.’ [Citations].” (Id. at pp. 1532-1533.)
The court thus reasoned the statutory elements test was the only relevant test, and the trial court had no duty to instruct the jury that section 148, subdivision (a)(1) was an offense included in section 69. (Lopez, supra, 129 Cal.App.4th at p. 1533.)
In Lacefield, the Second Appellate District weighed in on the question whether section 148, subdivision (a)(1) is a lesser included offense of section 69. The defendant in Lacefield was convicted of violating section 69 and argued the court should have instructed on misdemeanor resisting or obstructing, in violation of section 148, subdivision (a)(1), as a lesser included offense. (Lacefield, supra, 157 Cal.App.4th at pp. 251-252.) The accusatory pleading alleged both of the types of offense included in section 69, but the prosecutor expressly relied on the second type of offense—resisting by force or violence—and the jury was instructed as to the elements and general intent for the second type of offense pursuant to CALCRIM No. 2652. (Lacefield, supra, at pp. 255-256.)
Lacefield held that misdemeanor resisting or obstructing is a lesser included offense of the second type of offense described in section 69, resisting an executive officer by force or violence. (Lacefield, supra, 157 Cal.App.4th at pp. 255-257.) Lacefield compared the elements of section 148, subdivision (a)(1), with the elements in the second part of section 69. (Lacefield, at pp. 256-257.)
“There are striking similarities, and some important differences, between the elements of the second type of offense in section 69 and the offense in section 148(a)(1). The temporal element is identical, as both require the officer’s present performance of duty. Both require resistance, although section 148(a)(1) also refers to delay or obstruction. The section 69 offense specifies unlawful resistance with ‘force or violence,’ while section 148(a)(1) can be violated without force, since it punishes a person who ‘willfully resist[ed], delay[ed], or obstruct[ed].’ The section 69 offense requires that the defendant ‘knew’ the officer was performing duty, while section 148(a)(1) requires that the defendant ‘knew or reasonably should have known’ of the officer’s role. Comparing the elements, it appears to be impossible to violate the second type of offense in section 69 without also violating section 148(a)(1) , which means that section 148(a)(1) is a lesser included offense of the second type of offense in section 69 ….” (Lacefield, supra, 157 Cal.App.4th at pp. 256-257, italics added.)
Lacefield acknowledged the contrary holdings in Belmares and Lopez, but noted that the Belmares and Lopez courts “did not recognize that the two types of offenses in section 69 have different elements.” (Lacefield, supra, 157 Cal.App.4th at pp. 258, 259.)
Lacefield thus concluded that misdemeanor resisting or obstructing, in violation of section 148, subdivision (a)(1), is a lesser included offense of the second type of crime described in section 69, resisting by force or violence. (Lacefield, supra, 157 Cal.App.4th at p. 259; see also People v. Carrasco (2008) 163 Cal.App.4th 978, 984-985.)
Thus, under the combination of the opinions in Belmares and Lacefield, misdemeanor resisting or obstructing a peace officer in violation of section 148, subdivision (a)(1) is not a lesser offense included in the first type of offense defined in section 69, attempting to deter or prevent, but it is a lesser offense included in the second offense defined in section 69, resisting by force or violence.
C. The information, instructions, and argument
Appellant relies on Lacefield and contends that the jury herein should have been instructed on misdemeanor resisting as a lesser included offense of violating section 69. As Lacefield explains, we must turn to the record to determine whether appellant was prosecuted in count 3 for the first or second type of offense defined in section 69.
We begin with the information, which charged appellant with violating both aspects of section 69, and alleged:
“[Appellant] did unlawfully attempt by means of threats and violence to deter and prevent Correctional Officers William Wilson and Alfredo Galindo, who were then and there executive officers, from performing a duty imposed upon such officers by law, and did knowingly resist by the use of force and violence said executive officers in the performance of their duty.” (Italics added.)
While the information clearly alleged appellant violated both aspects of section 69, that does not end our inquiry because “[w]hen a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way. Such allegations do not require the prosecutor to prove that the defendant committed the crime in more than one way. [Citations.]” (Lopez, supra, 129 Cal.App.4th at pp. 1532-1533.)
The court instructed the jury with CALCRIM No. 2651, which states the elements of the first part of section 69, as follows:
“[Appellant] is charged in Count 3 with trying to deter an executive officer from performing that officer’s duties in violation of … Section 69.
“To prove [appellant] is guilty of this crime, the People must prove that:
“[Appellant] willfully and unlawfully used violence to try to deter an executive officer from performing the officer’s lawful duty;
“And when [appellant] acted, he intended to deter the executive officer from performing the officer’s lawful duty.
“Someone commits an act willfully when he or she does it willingly or on purpose.
“An executive officer is a government official who may use his or her own discretion in performing his or her job duties.
“The executive officer does not need to be performing his or her job duty at the time the threat is communicated.
“A threat may be oral or written and may be implied by a pattern of conduct or a combination of statements and conduct.
“[Appellant] does not have to communicate the threat directly to the intended victim, but may do so through someone else. [Appellant] must, however, intent [sic] that the statement be taken as a threat by the intended victim.
“Someone who intended that the statement be understood as a threat, does not have to actually intend to carry out the threatened act or intend to have someone else do so.” (CALCRIM No. 2651, italics added.)
In closing argument, the prosecutor explained that count 1, battery upon a non-confined person, was based on appellant punching Officer Wilson in the face, and count 2, attempted battery on a non-confined person, occurred when appellant attempted to punch Officer Galindo. The prosecutor offered the following argument as to count 3:
“If you punch somebody, a correctional officer in the face, you are trying to deter him from performing their duty. If he is trying to escort you back to your cell and you turn around and you pop him one right in the face and then you attempt to pop another officer, you all struggle to go down to the ground, ladies and gentlemen, you are attempting to deter the officers at that point.” (Italics added.)
The prosecutor thus used the language of CALCRIM No. 2651, that appellant was “trying” and “attempting” to deter the officers when he punched Officer Wilson and tried to punch Officer Galindo, consistent with the first aspect of section 69.
In response, defense counsel argued appellant was not guilty of the crimes charged, Officer Wilson punched him without provocation, and the other officers conformed their testimony to protect Officer Wilson. Defense counsel’s arguments were based upon instructions the jury received on unreasonable or excessive force (CALCRIM No. 2671) and self-defense (CALCRIM No. 3470).
In rebuttal argument, the prosecutor again addressed count 3 and argued appellant’s threats toward Officer Cummings could be considered in determining whether appellant was “trying to deter” the officers from performing their duties. (Italics added.)
D. Analysis
While appellant relies on Lacefield and simply asserts that Belmares was wrongly decided, he fails to address either Lacefield’s analysis of the second aspect of section 69, or the instructions and arguments raised in this case.
As we have demonstrated, this approach is deceptively simple and incorrect. While the information here used the language of both aspects of section 69, the trial court’s instructions and the prosecutor’s arguments demonstrate that appellant was prosecuted under the first aspect of violating section 69, attempting to deter or prevent, with unlawful violence as “the means by which the attempt” was made. (Manuel G., supra, 16 Cal.4th at pp. 814-815.) Indeed, appellant concedes as much when he argues that he “sought to obstruct the officers when they attempted to take him to his cell.” (Italics added.) Appellant also uttered a stream of threats at the officers as they ordered him to his cell. In doing so, appellant used threats and violence as he attempted to deter or prevent the officers from performing their duty.
We further note that even though appellant physically resisted the officers, the jury was not instructed on CALCRIM No. 2652 as to the second type of offense defined in section 69, resisting by force or violence. The prosecutor did not argue that appellant used force or violence to resist Wilson and Galindo, appellant was clearly prosecuted under the first part of section 69, and Lacefield’s analysis as to misdemeanor obstructing or resisting is not implicated in this case.
Given the nature of the charge in count 3, the court did not have a sua sponte duty to instruct on misdemeanor resisting arrest as a lesser included offense of attempting to deter or prevent in violation of the first offense defined in section 69. (Belmares, supra, 106 Cal.App.4th at pp. 24-26.)
E. Specific intent
Appellant was charged and convicted in count 3 of the first type of violation defined by section 69, attempting to deter or prevent, which is a specific intent offense. (People v. Gutierrez, supra, 28 Cal.4th at pp. 1153-1154; People v. Patino, supra, 95 Cal.App.3d at pp. 27-28; Lopez, supra, 129 Cal.App.4th at p. 1530; Roberts, supra, 131 Cal.App.3d at p. Supp. 9.) The threats must be made “with the specific intent to deter or prevent [the officer] from performing his duties, as required by section 69. [Citations.]” (People v. Hines, supra, 15 Cal.4th at pp. 1060-1061.) However, the jury was instructed that count 3 was a general intent offense.
We asked the parties for further briefing as to whether the jury was properly instructed as to the requisite intent for count 3 and whether any instructional error was prejudicial. Appellant argued the court should have instructed on specific intent, and the instructional error requires reversal. Respondent replied the jury was properly instructed on the requisite intent based upon the entirety of the instructions.
We agree with respondent that the court’s failure to give a specific intent instruction for count 3 does not require reversal of that conviction. The identical instructional issue was addressed in People v. Hering (1999) 20 Cal.4th 440 (Hering), where the defendants were charged with offering rebates on medical fees as inducements to refer patients to a doctor, in violation of Business and Professions Code section 650 and Insurance Code section 750. (Hering, supra, at p. 442.) The trial court instructed the jury on general intent and the elements of the offenses. The defendants argued the trial court should have instructed that the crimes required specific intent and asserted the general intent instruction was prejudicial and required reversal of the convictions. (Id. at pp. 443-444.)
Hering rejected the defendants’ instructional argument, but acknowledged that both crimes were defined in terms of offering an “inducement” for referring patients, which could be read as requiring the specific intent to induce referrals. (Hering, supra, 20 Cal.4th at p. 446.) Nevertheless, Hering held that the trial court did not err: “This case aptly illustrates the general principle that—other than circumstances involving a mental state defense—‘the characterization of a crime as one of specific intent [or general intent] has little meaningful significance in instructing a jury. The critical issue is the accurate description of the state of mind required for the particular crime.’ [Citations.]” (Id. at p. 447.)
Hering held it was sufficient that the trial court had instructed on the “inducement” element of the crime:
“Without being unavoidably tautological, one could not make an offer as inducement without intending to induce, i.e., the proscribed conduct incorporates the requisite culpable state of mind. [Citation.] The difference between making an offer ‘as inducement for referrals’ and making it ‘with the specific intent to induce referrals’ is semantical at best and legally insignificant. Indeed, any amplification on the terms of the statutes may have been confusing as well as redundant.” (Hering, supra, 20 Cal.4th at p. 447, fn. omitted.)
Hering further held the jury was not confused by the general intent instruction:
“[T]he general intent instruction … states that ‘[w]hen a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent.…’ [Citation.] With respect to Business and Professions Code section 650 and Insurance Code section 750, that which the law declares to be a crime is offering ‘any … consideration … as … inducement’ for referring patients, i.e., making such an offer for the purpose of inducing referrals. The jury thus could not have been misled.” (Hering, supra, 20 Cal.4th at p. 447.)
The identical reasoning applies to the instant case. The first prong of section 69 prohibits the “attempt[], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law ….” (§ 69, italics added.) One could scarcely attempt to deter or prevent something without intending to deter or prevent it. (See People v. Hood (1969) 1 Cal.3d 444, 457, fn. 6 [“the ordinary usage of the word ‘attempt’” includes the “strong suggestion of intent”]; People v. Carmen (1951) 36 Cal.2d 768, 775 [“[o]ne could not very well ‘attempt’ or try to ‘commit’ an injury on the person of another if he had no intent to cause any injury to such other person”], disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) The jury was instructed pursuant to CALCRIM No. 2651, that a violation of section 69 required the People to prove appellant “willfully and unlawfully used violence to try to deter an executive officer from performing the officer’s lawful duty,” and when he acted, he “intended to deter the executive officer from performing the officer’s lawful duty. [¶] Someone commits an act willfully when he or she does it willingly or on purpose.” (Italics added.) As in Hering, such language clarified that the specific intent to deter was an element of the offense.
Moreover, the jury could not have been misled by the general intent instruction, which stated that to find a person guilty of violating section 69, that person “must not only commit the prohibited act, but must do so with wrongful intent. A person acts with wrongful intent when he or she intentionally does a prohibited act.… The act required is explained in the instructions for that crime.” As in Hering, the jury only could have understood this as requiring the necessary specific intent as defined by the elements of the offense.
We thus conclude the court’s failure to instruct on specific intent for the violation of section 69 does not require reversal of count 3.
DISPOSITION
The judgment is affirmed.
WE CONCUR: CORNELL, Acting P.J., KANE, J.