P. v. HernandezCA4
Filed 11/8/13 P. v. HernandezCA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff
and Respondent,
v.
ANTONIO RIOS HERNANDEZ,
Defendant
and Appellant.
E056583
(Super.Ct.No.
FSB1004724)
APPEAL
from the Superior Court
of
Bernardino County. Duke
D. Rouse, Judge. Affirmed.
Barbara
A. Smith, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gilette, Chief Assistant Attorney General,
Julie L. Garland, Senior Assistant Attorney General, and A. Natasha Cortina,
Sean M. Rodriguez and Stacy Tyler, Deputy Attorneys General, for Plaintiff and
Respondent.
San Bernardino County Sheriff’s Deputy Paul Casas responded to a house
belonging to defendant Antonio Hernandez to investigate a report that defendant
had been in an altercation with his neighbor.
When the sheriff’s deputy arrived, defendant was intoxicated, belligerent
and refused to cooperate. Defendant
pushed his wife and Deputy Casas attempted to arrest him. Defendant hit the sheriff’s deputy several
times with a cane he was using because of
Defendant was
convicted of assault with a deadly weapon
and by force likely to produce great bodily injury on someone who he should
have known or knew was a peace officer engaged in the performance of his duties
(Pen. Code, § 245, subd. (c)).
name="_ftnref1" title="">[1] Defendant was placed on three years of formal
probation and was to serve 180 days in the San Bernardino County jail on a work
release program.
Defendant
now contends on appeal that the evidence was insufficient to support his
conviction for assault on a peace officer, or in the alternative, the trial
court’s failure to sua sponte instruct the jury with a lesser included offense
of non-aggravated assault with a deadly weapon requires reversal.
We
affirm the judgment.
I
FACTUAL BACKGROUND
A. People’s Case-in-Chief
On November 8, 2010, around 7:30 p.m., San Bernardino County Sheriff’s Deputy Paul
Casas responded to defendant’s residence regarding an altercation that had
occurred between defendant and his neighbor.
Both the defendant and the neighbor were injured during the altercation. Prior to going to defendant’s house, Deputy
Casas spoke with defendant’s neighbor and he told Deputy Casas he did not want
to press charges against defendant.
Deputy Casas
parked his patrol car in front of defendant’s residence. Deputy Casas’s marked sheriff’s patrol car had lights on top
and law enforcement insignia on the side.
He was in full uniform with a badge.
Defendant was
outside the home leaning on a pillar.
Defendant’s son, Oscar Rios, and defendant’s wife, Elvia Rios, were also
in the driveway. Defendant was using a
cane because he had knee surgery three weeks prior to this incident.
Defendant was immediately
belligerent and appeared intoxicated. He
told Deputy Casas to look at his eye, which was bleeding “pretty heavily.†Defendant told Deputy Casas that he had been
in a fight with his neighbor and someone had thrown something that hit his eye.
Defendant was speaking in both English
and Spanish. Oscar attempted to
translate.
Defendant ignored Oscar. Defendant pointed to his truck and yelled at Deputy
Casas to look at his truck, which he claimed had been damaged during the
altercation with the neighbor. Oscar continued
to translate and tried to calm defendant.
Deputy Casas, at some point, told defendant to shut up.
Deputy Casas
informed Oscar and Elvia that the neighbor did not want to press charges
against defendant. He asked Elvia and
Oscar if they wanted anything done and they responded they did not. They both told Deputy Casas that they would
try to get defendant in the house and Deputy Casas agreed this was a good idea. Deputy Casas headed back to his patrol car
and was prepared to leave.
Elvia put her
hands on defendant’s chest
and stomach trying to move him into the house. Defendant yelled to Deputy Casas about his
freedom of speech and that he still wanted him to look at his truck. Defendant initially went with Elvia but then
stopped. Defendant pushed Elvia down to
her knee.
Deputy Casas
immediately determined that he was going to arrest defendant.
going to place him under arrest. Elvia stepped
between defendant and Deputy Casas and begged him not to arrest defendant. Deputy Casas moved her out the way.
Deputy Casas grabbed
defendant’s arm in order to put him in handcuffs. Defendant lifted his cane and hit Deputy
Casas’s left shoulder. Deputy Casas felt
dizzy and stepped back. Deputy Casas
“hunched†over and grabbed his shoulder.
Defendant swung the cane at Deputy Casas again and the cane broke.
Deputy Casas used
his Taser and deployed darts at defendant’s chest. It did not stop defendant, who continued to
come toward Deputy Casas. Defendant
still had his cane that had a broken tip and Deputy Casas surmised it could
easily be used as a stabbing weapon.
At that point,
Deputy Casas got out his gun and pointed it at defendant advising him to drop
the cane. He also requested backup on
the radio he had on his person. Deputy
Casas then put away his gun and grabbed defendant to try to get him on the
ground. Deputy Casas informed him that
he needed to put his hands behind his back so that he could put handcuffs on
the defendant. They continued to
struggle and Deputy Casas again had to use his Taser against defendant’s body.
Oscar and Elvia tried
to get Deputy Casas off the defendant. Deputy
Casas eventually was able to handcuff defendant but was unable to get him off
the ground. Other deputies responded and
put defendant in the back of his patrol car.
After defendant
was placed in the patrol car, he calmed down.
Defendant admitted to Deputy Casas that he had three shots of tequila that
day and was on pain medication for the knee surgery. He apologized to Deputy Casas for hitting him
with his cane and said that he respected law enforcement.
Deputy Casas had a
bruise on his elbow from struggling with defendant on the ground. He had an eight-inch contusion on his
shoulder caused when defendant hit him with the cane. He took the next day off from work and was
sore for a couple of days. Deputy Casas
did not have a baton and did not use his flashlight during the altercation.
For the first time
at trial, Oscar claimed that defendant’s cane was broken when defendant hit it
against a door, not from hitting Deputy Casas.
Oscar admitted that he apologized for defendant’s behavior on that night
and stated that defendant had gone “crazy†after the fight with his
neighbor. Oscar heard Deputy Casas tell Elvia
several times to back off. Oscar did not
see Elvia fall to the ground. Oscar also
claimed that when Deputy Casas pulled out his gun, he told defendant that he
would kill him.
B. Defense
Defendant
testified on his own behalf. Deputy
Casas came to his house at approximately 8:00 p.m. Defendant admitted taking three shots of
tequila and pain medication that day.
Defendant told Deputy Casas that he wanted to file a police report about
the assault by his neighbor. Deputy
Casas told him to shut up and would not let him make a report. Deputy Casas called defendant and his family
‘“Wetbacks.’†Deputy Casas told
defendant he was going to be arrested if he did not shut up. Defendant was upset and hit a door with his
cane. Deputy Casas pulled out his Taser
and shot him. Deputy Casas kicked
defendant until he fell down.
Defendant claimed
that from the moment Deputy Casas came to his house, he was yelling and not
acting like a law enforcement officer. Defendant
admitted he may have hit Deputy Casas with the cane as he was falling to the
ground. Deputy Casas hit him in the head
with his flashlight after he was handcuffed. Defendant also claimed that Deputy Casas told
him he was going to take him to Tijuana because he knew someone there who would
kill him.
Elvia testified on
behalf of defendant. Elvia observed
Deputy Casas arguing with defendant and telling him to shut up. She denied that defendant ever hit or pushed
her that night. Deputy Casas never told
defendant why he was arresting him.
Deputy Casas hit and kicked defendant.
Elvia told him several times to stop.
Elvia tried to intervene and was pushed to the ground by Deputy
Casas. Elvia saw Deputy Casas point his
gun at defendant and tell him that he was going to kill him. She also observed Deputy Casas hit defendant
with his flashlight. She never saw
defendant hit Deputy Casas with his cane.
Joel Bernal was
defendant’s neighbor. He was home when
he heard screaming coming from defendant’s home. He went outside to observe defendant being
pulled by an officer. At some point they
fell to the ground and the officer pointed a gun at defendant, Elvia and
Oscar. Defendant was handcuffed and on
the ground. The officer pulled defendant
by his arm. Bernal believed that the
officer hit defendant with his flashlight one time, but later stated he was not
sure if he used it on him. He also saw
Elvia get pushed to the ground by the officer.
Bernal did not observe anything that occurred prior to this part of the
altercation.
Art Vasquez was an
investigator employed by the San Bernardino County Public Defender’s
office. Vasquez interviewed Bernal prior
to his testimony at trial. Bernal had
told him that he saw the officer hitting defendant with his flashlight.
C. Rebuttal
Deputy Casas was called
back for rebuttal. He was never
disciplined in this case for using excessive force or for any other
reason. Defendant, from the moment the deputy
arrived, was belligerent and clearly intoxicated. Deputy Casas admitted that he told defendant
to “shut up†so that he could complete his investigation, and calm defendant. Deputy Casas never threatened to kill the defendant.
II
INSUFFICIENCY OF THE
EVIDENCE
Defendant contends
the evidence presented was insufficient to support his conviction of assault on
a peace officer with a deadly weapon with force likely to produce great bodily
injury within the meaning of section 245, subdivision (c), because defendant
reasonably believed that Deputy Casas was acting outside the scope of his
duties. He also argues, in the
alternative, that reversal is required because the trial court had a sua sponte
duty to instruct the jury with the lesser included offense of assault with a
deadly weapon.
title="">[4]
A. Sufficiency of the
Evidence
“Our task is clear. ‘On appeal we review the whole record in the
light most favorable to the judgment to determine whether it discloses
substantial evidence - - that is, evidence that is reasonable, credible, and of
solid value -- from which a reasonable trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.]
The standard of review is the same in
cases in which the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit
a defendant if it finds that circumstantial evidence is susceptible of two
interpretations, one of which suggests guilt and the other innocence
[citations], it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. ‘“If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.â€â€™ [Citations.]†[Citation.]’ [Citations.] The conviction shall stand ‘unless it appears
“that upon no hypothesis whatever is there sufficient substantial evidence to
support [the conviction].â€â€™ [Citation.]â€
(People
v. Cravens (2012) 53 Cal.4th 500, 507-508.)
Section 245,
subdivision (c), states: “Any person who
commits an assault with a deadly weapon or instrument, other than a firearm, or
by any means likely to produce great bodily injury upon the person of a peace
officer or firefighter, and who knows or reasonably should know that the victim
is a peace officer or firefighter engaged in the performance of his or her
duties, when the peace officer or firefighter is engaged in the performance of
his or her duties, shall be punished by imprisonment in the state prison for
three, four, or five years.â€
The jury was
instructed that “[t]he People have the burden of proving beyond a reasonable
doubt that Deputy Paul Casas was lawfully performing his duties as a peace
officer. If the People have not met this
burden, you must find the defendant not guilty of assault on a peace officer as
charged in Count 1. A peace officer is
not lawfully performing his duties if he or she is not lawfully arresting
someone or using reasonable
name="_ftnref5" title="">[5] or excessive force when attempting to make or
making an otherwise lawful arrest or detention.†It was further instructed, “A peace officer
may use reasonable force to arrest, to overcome resistance or in
self-defense. If a person knows or
reasonably should know that a peace officer is arresting him, the person must
not use force or any weapon to resist an officer’s use of reasonable
force. If a peace officer uses
unreasonable or excessive force while arresting or attempting to arrest a
person, that person may lawfully use reasonable force to defend himself.â€
Deputy Casas arrived
in full uniform and his marked patrol car.
There was no dispute that defendant was belligerent and
intoxicated. Deputy Casas was in the
process of leaving when he observed defendant push Elvia. Deputy Casas testified that he told defendant
he was being arrested for pushing his wife.
Even if Deputy Casas said nothing to defendant, defendant knew or
reasonably should have known that Deputy Casas was acting as a peace officer
when he came toward him attempting to handcuff him.
Further, the
testimony by defendant and his family that they did not know the reason why defendant
was being arrested or that the deputy used excessive force that entitled
defendant to hit him with a cane, simply was not believable. Defendant could not honestly believe he could
push his wife in front of a law enforcement officer and not be arrested. Moreover, defendant had no injuries even
though he claimed he was hit in the head with Deputy Casas’s flashlight. If Deputy Casas actually used excessive force
against defendant, Oscar would not have apologized to Deputy Casas for
defendant’s behavior.
“[I]t is the exclusive province of the . . . jury to determine the credibility of a witness
and the truth or falsity of the facts upon which a determination depends.†(People
v. Maury (2003) 30 Cal.4th 342, 403.) Even when there is a significant amount of
countervailing evidence, the testimony of a single witness can be sufficient to
uphold a conviction. (
1038, 1052.) Here, the jury accepted
Deputy Casas’s testimony and we are not in a position to reverse such a
determination. Moreover, the evidence
strongly supported that defendant knew or reasonably should have known that
Deputy Casas was performing his duty by arresting defendant for pushing Elvia,
and used force against defendant (who was belligerent and intoxicated) that was
reasonable in order to effectuate the arrest.
More than substantial
evidence supports defendant’s conviction in this case.
B. Lesser Offense Instruction
Defendant contends, if we
reject his sufficiency claim, that the trial court erred by failing to sua
sponte instruct the jury with the lesser included offense of assault with a
deadly weapon or instrument which likely will produce bodily injury pursuant to
section 245, subdivision (a). This crime
does not require that defendant knew or reasonably should have known that
Deputy Casas was acting as a peace officer.
Initially,
defendant did not set forth this argument in a separate heading as required by
California Rules of Court, rule 8.204(a)(1)(B).
As the argument is not presented under a separate heading, we may deem
it forfeited. (See People v. Roscoe (2008) 169 Cal.App.4th 829, 840.) Despite this defect, we will address the
contention briefly.
Generally, a trial
court must, even in the absence of a request, instruct on the lesser included
offenses of any charged crimes. (
926, 1007-1008.) 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. (People
v. Moon (2005) 37 Cal.4th 1, 25-26.)
The trial court’s sua sponte duty arises even if the defendant objects
to the instruction and regardless of the defendant’s theory of defense. (People
v. Breverman (1998) 19 Cal.4th 142, 162-163 & fn. 9.)
Section 245, subdivision
(a)(1), non-aggravated assault with a deadly weapon provides: “Any person who commits an assault upon the
person of another with a deadly weapon or instrument other than a firearm or by
any means of force likely to produce great bodily injury shall be punished by
imprisonment in the state prison for two, three, or four years, or in a county
jail for not exceeding one year, or by a fine not exceeding ten thousand
dollars ($10,000), or by both the fine and imprisonment.†We previously set forth the language of
section 245, subdivision (c). The
completed offense of assault with a deadly weapon on a peace officer
necessarily includes an assault with a deadly weapon. Both parties agree that non-aggravated
assault with a deadly weapon is a lesser included offense of assault with a
deadly weapon on a peace officer.
However, we have already
explicated the strong evidence supporting that defendant knew or should have
reasonably been aware that Deputy Casas was performing his duties as a peace
officer. There simply was no support for
the lesser included offense instruction.
Moreover, even if we were to conclude that the trial court erred by
failing to instruct the jury with the lesser included offense, any error was
not prejudicial because the evidence does not absolve defendant of the greater
offense. (People v. Breverman, supra, 19 Cal.4th at p. 178 [“in a noncapital
case, error in failing sua sponte to instruct, or to instruct fully, on all
lesser included offenses and theories thereof which are supported by the
evidence must be reviewed for prejudice exclusively under [
what a reasonable jury could do, but what such a jury is likely to have done in
the absence of the error under consideration.†(Id.
at p. 177.) We conclude, based on all
the evidence we set forth, ante, that
the jury would have found defendant guilty of violating subdivision (c) of section
245 even with the option of non-aggravated felony assault as a lesser offense. We reject defendant’s contention.
III
DISPOSITION
The
judgment is affirmed.
NOT
TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI
J.
We concur:
McKINSTER
Acting P. J.
MILLER
J.
further statutory references are to the Penal Code unless otherwise indicated.
Casas could not recall if he told defendant he would arrest him if he did not
shut up.
