Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FVI702109., John M. Tomberlin, Judge.
Denise M. Rudasill, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Ronald Jakob, and Jennifer A. Jadovitz, Deputy Attorneys General, for Plaintiff and Respondent.
Ramirez, P.J.
After a jury trial, defendant was convicted of two felony counts of obstructing or resisting executive officers in the performance of their duties (Pen. Code, § 69), and a misdemeanor count alleging battery committed against a peace officer. (Pen. Code, § 243, subd. (b).) Defendant appeals, challenging (1) the admission of evidence of defendant’s statements to the 911 dispatcher as well as evidence of the 911 call history for defendant’s residence; (2) the overruling of defendant’s objections to testimony in the form of an opinion by one of the deputies that he had a lawful right to detain defendant; (3) the trial court’s refusal to instruct the jury that misdemeanor resisting arrest (Pen. Code, § 148) is a lesser included offense within the charged felony violation resisting arrest by an executive officer with force or violence; and (4) the sufficiency of the evidence of mere threats at the hospital to support one of the felony counts of deterring or preventing the deputy from performing his duties. We affirm.
BACKGROUND
Prosecution Evidence
On the morning of September 21, 2007, a 911 dispatcher received a “hang-up” call. Following standard procedures, the dispatcher returned the call. The defendant, who answered the call, sounded angry. When the dispatcher inquired if anything was needed, the defendant said he had just hit his daughter and that someone should arrest him. When the dispatcher asked his name, the person said, “... have a blessed life” and hung up. The dispatcher entered a 911 follow up to send a deputy to the residence to check on the well-being of the daughter and see what was going on.
San Bernardino Sheriff’s Deputy James Williams received the information from the dispatcher about the 911 call. The deputy also received a call history for the residence. The call history revealed that on a prior occasion, a call was made from the same location indicating that there was a barricaded subject. There was no indication, however, that defendant was involved in the prior situation. Upon arrival at the address, Deputy Williams saw an adult female walking down the street. The woman was crying and appeared to be in distress. Her face was red and there were red marks and scrapes around her neck. A male subject, the defendant, was walking behind her.
Deputy Williams made contact with the woman, the defendant’s daughter, as Deputy Halterman arrived to assist. Deputy Williams asked Deputy Halterman to speak to defendant’s daughter as he (Williams) approached the defendant. As Williams approached defendant, he turned on his belt recorder. Defendant asked why he was being recorded and Williams explained he recorded every encounter. Defendant said, “Have a nice day, ” and turned to walk away. When Deputy Williams directed defendant, multiple times, to come back, defendant began to run towards his residence. Concerned that defendant would harm himself or barricade himself in the residence, Deputy Williams chased defendant, until defendant entered the security door to his patio, attempting to close the door. Because the deputy’s leg was in the door, it would not close.
The deputy testified that the defendant said the conversation was over, but a transcript of the actual taped encounter showed defendant made the statement indicated above.
While standing in the doorway, Deputy Williams pulled out his taser, but the weapon did not deploy when the trigger was pulled. Defendant took an aggressive stance, clenching his fists like a boxer, and dared the deputy to go ahead and use the taser, adding that he would sock the deputy, referring to him as a “mother fucker.” Deputy Williams shoved the defendant backwards to distance himself from defendant and avoid possible danger inherent when a deputy is in a doorway and attempted a lateral vascular neck restraint (control hold or neck restraint) to subdue the defendant. However, defendant continued to resist by flailing his arms and kicking, and ducking his head down. Because the deputy still had the taser in his right hand, he was unable to complete the grip, so the deputy took defendant to the ground.
Once on the ground, the deputy brought his right hand, still holding the taser, around the defendant’s neck. However, in the process, the taser cartridge struck the top of defendant’s head causing a laceration. Then Deputy Williams threw the taser away, punched the defendant so that his head got into the proper position to complete the neck restraint and defendant stopped resisting. By this time, Deputy Halterman and other deputies arrived to assist Deputy Williams by grabbing defendant’s legs. Deputy Halterman noticed defendant’s growling pit bull nearby and used a taser on the dog to subdue it, and then handcuffed defendant.
The deputies assisted defendant to a patio chair that broke when he was seated, and then transported him to a medical center for treatment of the laceration. In the emergency room, defendant became agitated and informed the deputies the handcuffs were too tight. When Deputy Halterman checked the cuffs, defendant told him to remove them, and that he (defendant) would “kick his ass” and “fuck him up” or kill him.
Defense Evidence
Justin Chapman is defendant’s step-son, currently housed in state prison. Chapman was present when defendant argued with his daughter and then called 911. There was no physical violence involved in the argument, just yelling; although defendant told the 911 dispatcher that he hit his daughter, he did not hit her. Defendant’s daughter then took off down the street and defendant went onto the front patio to see where she went.
As Chapman stood in the interior doorway to the house, the defendant, who was just outside the patio door, yelled for the dogs to get into the back yard, because they had followed him through the door. Defendant turned around to go put them in the back yard when six deputies came into the patio. One of the deputies hit defendant in the head with a taser as defendant grabbed the dogs. Then the deputies told defendant to get onto his stomach, and defendant complied. Then one of the deputies put his arms around defendant’s neck. Then two deputies picked him up and slammed him in the patio chair, causing the chair to break and defendant to fall.
Chapman acknowledged that his testimony at trial was different from the version of events he described on the date of the incident. Chapman did not recall telling a deputy on the day of the incident that he heard defendant say, “tase me, motherfucker, ” although it is possible he said that. The reason his story was now different was that he was mad at defendant on the day of the incident, but he was no longer mad at the time of trial. At that time, Chapman told a deputy that defendant got what he deserved.
Procedural History
Defendant was charged with two felony counts of attempting to deter or prevent an executive officer from performing his duty by threat or violence (Pen. Code, § 69, counts 1 [Williams] and 2 [Halterman]), and a misdemeanor count of battery on a peace officer. (Pen. Code, § 243, subd. (b), count 3 [Williams].) After a jury trial, he was convicted of all three counts. Probation was denied at sentencing and defendant was committed to state prison for an aggregate term of two years eight months in prison. Defendant timely appealed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion By Admitting the 911 Tape or the 911 Call History Into Evidence.
Defendant argues that the trial court abused its discretion by admitting the 911 tape, and the 911 call history, into evidence. In addition to a relevance argument (Evid. Code, § 210), defendant asserts that the probative value of the evidence was outweighed by its potential for prejudice. (Evid. Code, § 352.) Defendant acknowledges that defense counsel did not object to the admission of the challenged evidence on Evidence Code section 352 grounds. He argues that this failure should not result in forfeiture because any objection would have been futile. We disagree
a) Forfeiture of Evidence Code Section 352 Challenge
Defendant cites three cases in support of his position that the Evidence Code section 352 issue should be decided despite the lack of an objection: People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Birks (1998) 19 Cal.4th 108, 116, footnote 6 (Birks); People v. Hill (1998) 17 Cal.4th 800, 820 (Hill). In Anderson, the reviewing court found there was no merit to defendant’s contention that his trial counsel’s failure to object under Evidence Code section 352 was ineffective because the 352 objection lacked merit. That case does not excuse a failure to object on section 352 grounds. It simply held that because the objection lacked merit, counsel could not be deemed ineffective for failing to make the futile objection.
In Birks, the People petitioned for review seeking to overrule the case of People v. Geiger (1984) 35 Cal.3d 510, which had compelled a reversal by the intermediate appellate court. The defendant in that case argued that the People had forfeited the argument that Geiger should be overruled because they did not raise that argument in the Court of Appeal. The Supreme Court pointed out that the appellate court had no authority to overrule the Supreme Court precedent in Geiger, so the issue was properly presented in the Supreme Court, in the first instance. (Birks, supra, 19 Cal.4th at p. 116, fn. 6.) This case does not excuse a failure to object to the admissibility of evidence on appropriate grounds in the trial court.
In Hill, the defendant argued on appeal that the prosecutor committed numerous acts of misconduct, although his trial counsel failed to object to most of the occurrences. In determining that the issue was preserved for appeal, the reviewing court pointed to the egregious nature of the prosecutorial misconduct, which the court described as “a constant barrage” of “unethical conduct.” (Hill, 17 Cal.4th at p. 821.) The court observed that in response to one defense objection at trial, the lower court had informed the defense that the prosecutor’s argument was proper, and in response to another defense objection, the trial court actually chastised defense counsel in front of the jury. Under those unusual circumstances, the Court of Appeal determined that all the asserted grounds for misconduct were preserved for appeal. (Id. at p. 822.)
The present case does not involve such unusual circumstances. Here, defense counsel objected to the evidence but not on Evidence Code section 352 grounds, so that objection has been forfeited. Nevertheless, even if a 352 objection had been made, we would find no error.
b. Merits of Objections to Admissibility
Evidence Code section 210 defines relevant evidence as evidence having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. All relevant evidence is admissible. (Evid. Code, § 351.) A trial court has broad discretion to admit relevant evidence, but lacks discretion to admit irrelevant evidence. (People v. Thornton (2007) 41 Cal.4th 391, 444, citing People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) We review a trial court’s ruling for abuse of discretion. (People v. Williams (1997) 16 Cal.4th 153, 197 .)
Dealing first with the 911 tape, the evidence of the defendant’s statements on the 911 tape was relevant. The People had the burden of proving the officers were lawfully performing their duties when the defendant forcibly attempted to deter them. The 911 tape included defendant’s statement that he had struck his daughter, a statement that was admissible as an admission or a confession (Evid. Code, § 1220) that he had committed either an assault or a battery. The evidence was relevant to show the lawfulness of the deputies’ conduct in going to defendant’s residence to investigate and interview him regarding the circumstances leading up to the call. Because the defendant hung up on the 911 operator, the deputies had no way to know in advance whether defendant’s daughter was injured, or the degree of injury. There was no error in admitting the recording of the 911 call.
The call history refers to a log of prior 911 calls relating to the location from which the instant 911 call was made. Deputy Williams testified that when he responds to a 911 call, he wants to know if there were any prior calls for service at the address. The call history indicated that on a prior occasion, a subject was barricaded inside the residence. The trial court admitted the call history because information that a person was barricaded in the same residence would have an effect on the first responding officer, making him more wary.
An out-of-court statement is properly admitted if a nonhearsay purpose for admitting the statement is identified, and the nonhearsay purpose is relevant to an issue in dispute. (People v. Turner (1994) 8 Cal.4th 137, 139; see also, People v. Scalzi (1981) 126 Cal.App.3d 901, 907.) The call history was not offered for the truth of the matter asserted, but for the effect it had on the deputies. Deputies responding to emergencies necessarily need to know if there may be weapons at a location, of if there have been previous confrontations or violent incidents at a location to aid them in their response. Just as knowledge that children or elderly persons may reside at a location may be useful to peace officers in formulating a response plan that minimizes the risk to innocent bystanders, knowledge of prior call history for a location can aid peace officers in determining if the call is a crank call, or if a violent confrontation should be expected.
Even if we found the call history was irrelevant, we would not find prejudicial error. The prosecution’s case was strong, the reference was brief, and the deputy acknowledged during cross-examination that there was no information linking the defendant to the prior call. It is not reasonably probable that a result more favorable to the defendant would have been reached in the absence of the evidence. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. The Admission of the Officer’s Opinion As to the Legality of the Detention of Defendant Was Harmless Error.
Defendant argues the trial court erred by allowing Deputy Halterman to testify as to his opinion that Deputy Williams gave defendant a lawful command which defendant refused to obey, and that defendant violated the law by resisting, obstructing or delaying the officers by violating that lawful command. We review challenges to the admissibility of expert opinion for abuse of discretion. (People v. Rowland (1992) 4 Cal.4th 238, 266.) We agree that the opinion testimony was inadmissible, but find that any error was harmless.
The record does not indicate, but we assume that Deputy Halterman’s opinion was offered as that of an expert, based on the questions relating to his training and experience. A witness, testifying as an expert, may offer his or her opinion on a subject that is beyond common experience and based on matter that is of a type that reasonably may be relied upon by an expert in forming an opinion. (Evid. Code, § 801.) The fact that the opinion embraces the ultimate issue to be decided by the trier of fact does not make the evidence objectionable. (Evid. Code, § 805.) However, when he testifies to conclusions which a lay jury can draw, the expert is no longer testifying on a question of “science, art or trade” in which he is more skilled than the jury. (People v. Brown (1981) 116 Cal.App.3d 820, 828.)
Because a properly instructed jury after hearing all the evidence is deemed as competent as any expert to determine the defendant’s guilt (People v. Brown, supra, 116 Cal.App.3d at p. 829; see also People v. Coffman and Marlow (2004) 34 Cal.4th 1, 77), an expert opinion that a crime has been committed, or that the defendant is guilty of the crime charged, is inadmissible. (People v. Torres (1995) 33 Cal.App.4th 37, 45-47.)
It is a “‘well-established rule that when a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delicti of the offense is that the officer was acting lawfully at the time the offense was committed.’” (People v. Cruz (2008) 44 Cal.4th 636, 673-674, citing People v. Jenkins (2000) 22 Cal.4th 900, 1020, and In re Manuel G. (1997) 16 Cal.4th 805, 815.) As an element of the crime, the question of whether the deputies gave the defendant a lawful command was one for the jury to decide. As to whether defendant violated the law by refusing to obey the instruction, such an opinion by the deputy was tantamount to his opinion that defendant was guilty of the crime charged. There is no need for this type of evidence, which shifts responsibility for determining the question of guilt to the witnesses. (People v. Killebrew (2002) 103 Cal.App.4th 644, 651.)
The court abused its discretion in allowing Deputy Halterman to testify that defendant violated a legal, lawful command by continuing to walk away after Deputy Williams gave him a lawful command to stop, and that defendant violated the law by resisting, obstructing or delaying the peace officer. The next question is whether the error was prejudicial.
Defendant points to the testimony of his stepson, Dustin Chapman, in arguing that the error was prejudicial given the conflicting evidence. We disagree. Chapman’s testimony was inconsistent with statements he made prior to trial when he informed the deputies that defendant got what he deserved because he was mad at defendant. Against the weight of four other witnesses, and the tape recording of the incident made contemporaneously at the time of the arrest, Chapman’s testimony was entitled to little or no weight. Since it is not reasonably probable that defendant would have obtained a more favorable result had the opinion been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.) Notwithstanding the defense evidence that the deputies were the aggressors
3. The Trial Court’s Refusal to Instruct the Jury Pursuant to Penal Code Section 148 as a Lesser Offense Was Not Reversible Error.
Defendant argues that the court committed reversible error in failing to instruct the jury on the elements of misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)) as a lesser included offense within the felony offense of Penal Code section 69. Failure to instruct on a lesser related offense is reviewed de novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) Nevertheless, even if the lesser offense is necessarily included, we may not reverse unless the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; People v. Breverman (1998) 19 Cal.4th 142, 148-149, citing People v. Watson, supra, 46 Cal.2d at p. 836.)
Penal Code section 69 makes it a felony to 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, or to knowingly resist, by the use of force or violence, such officer in the performance of his duty. The statute sets forth two separate ways in which the offense can be committed: (1) attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; or (2) resisting by force or violence an officer in the performance of his or her duty. (In re Manuel G., supra, 16 Cal.4th at p. 814.)
The first type of offense is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law. (In re Manuel G., supra, 16 Cal.4th at p. 814 .) A threat, unaccompanied by any physical force may support a conviction for the first type of offense under this section. (In re M.L.B. (1980) 110 Cal.App.3d 501, 503.)The second type of offense involves force or violence by the defendant against an officer engaged in his duties at the time of the defendant’s resistance. (People v. Lacefield (2007) 157 Cal.App.4th 249, 255.)
Penal Code section 148, subdivision (a)(1) is a lesser included offense to Penal Code section 69’s second type of violation, relating to resisting, by the use of force or violence, an officer in the performance of his duty. (People v. Carrasco (2008) 163 Cal.App.4th 978, 985.) However, in the present case, while the accusatory pleading alleged both types of resistance and deterrence, the prosecutor elected to prosecute under the first type only, and the jury was so instructed.
Although it is impossible to violate the second type of offense in Penal Code section 69 without also violating Penal Code section 148(a)(1) (People v. Lacefield, supra, 157 Cal.App.4th at p. 257), the same is not true where the prosecution’s theory relies on a violation of the first type. Resisting arrest is not a lesser included offense of deterring an executive officer in the performance of his duty, since one can deter an officer’s duty in the future without resisting the officer’s discharge or attempted discharge of a duty at that time. (People v. Belmares (2003) 106 Cal.App.4th 19, 24, citing Birks, supra, 19 Cal.4th at p. 117.) Because Penal Code section 148 is not a lesser offense included within the first type of offense defined by Penal Code section 69, the court was not required to so instruct the jury.
Where the evidence establishes that if a defendant is guilty of anything at all he is guilty of the greater offense, instructions on a lesser related offense need not be given. (People v. Knowlden (1985) 171 Cal.App.3d 1052, 1058.) The record shows defendant resisted arrest with violence, kicking Deputy Williams after slamming the patio door on his leg, and continued to flail and kick as Deputy Halterman attempted to handcuff him, requiring a third deputy to hold defendant’s legs. If “[defendant] resisted the officers at all, he did so forcefully, thereby ensuring no reasonable jury could have concluded he violated section 148, subdivision (a)(1) but not section 69.” (People v. Carrasco, supra, 163 Cal.App.4th at p. 985.) As a lesser related offense, any error in refusing to instruct the jury on the elements of the misdemeanor offense was harmless.
4. There Was Substantial Evidence to Support the Conviction as to Count 2.
Defendant argues there is insufficient evidence to support his conviction for count 2 because there was insufficient credible evidence that he specifically intended to deter Deputy Halterman from performing his current or future lawful duties by making threatening statements in the hospital. We disagree.
a) Standard of Review
When reviewing a claim of insufficiency of evidence, we must view the evidence in the light most favorable to the verdict and presume in support of the judgment the existence of every fact that the trier of fact could reasonably deduce from that evidence. The test is whether substantial evidence supports the conclusion of the trier of fact (Jackson v. Virginia (1979) 443 U.S. 307, 319 [99 S.Ct. 2781, 61 L.Ed.2d 560]), not whether the evidence proves guilt beyond a reasonable doubt. (People v. Briscoe (2001) 92 Cal.App.4th 568, 584-585.)
Viewing the evidence in the light most favorable to the judgment, we must determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (People v. Cervantes (2001) 26 Cal.4th 860, 866.) To be substantial, evidence must be of ponderable legal significance, reasonable in nature, credible and of solid value. (People v. Johnson (1980) 26 Cal.3d 557, 576.)
b. General Legal Principles
Penal Code section 69 is violated when a person 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 to knowingly resist, by the use of force or violence, such officer in the performance of his duty. A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69, if the threat refers to unlawful violence used in an attempt to deter the officer. (In re M.L.B., supra, 110 Cal.App.3d at p. 503; People v. Carrasco, supra, 163 Cal.App.4th at p. 985.)
However, the threat may relate either to an officer’s immediate performance of a duty imposed by law or the officer’s performance of such a duty at some time in the future. (In re Manuel G., supra, 16 Cal.4th at pp. 816-817; People v. Lacefield, supra, 157 Cal.App.4th at p. 255.)The code section does not reach threats made only in response to or in retaliation for an officer’s past performance of his or her duties. (In re Manuel G., supra, 16 Cal.4th at pp. 816-817, including fn. 6.)
c. Analysis
In the present case, defendant informed Deputy Halterman that he would “get” the deputy if he ever saw the deputy out and about, and he threatened to fight the deputy if he removed the handcuffs. These threats of future violence were sufficient to constitute a violation of Penal Code section 69.
Defendant analogizes these threats to those made in the case of People v. Hines (1997) 15 Cal.4th 997, but that case is inapposite since it did not involve convictions for violations of section 69. In Hines, defendant’s threats to three jail deputies were admitted at the penalty phase of a death penalty trial as evidence in aggravation. Defendant challenged the admissibility of the threats evidence on appeal and argued his trial counsel was ineffective for failing to object.
In analyzing the threats to the three deputies, the court noted that defendant’s statements to one of the deputies that he would “fuck up” the deputy was inadmissible as evidence in aggravation at the penalty phase because the deputy could not recall the circumstances under which the threats were made, the statements were directed to other inmates, and the defendant did not have the immediate ability to carry out the threats at the time he made them. The court observed that any error in failing to object to the admission of the evidence was harmless because the evidence was insignificant, and cumulative given the defendant’s threats against the two other deputies while defendant was incarcerated pretrial.
Here, Deputy Halterman testified to the circumstances under which the threats were made, which were directed at the deputy. Also, because the threats related to future actions, the defendant’s present inability to carry out the threats is not relevant. The evidence supports the conviction on count 2.
DISPOSITION
The judgment is affirmed.
We concur: McKinster J., Miller J.