P. v. Herrera
Filed 8/12/13 P. v. Herrera CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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.
JORGE LUIS HERRERA,
Defendant
and Appellant.
E054953
(Super.Ct.No.
SWF1100814)
OPINION
APPEAL
from the Superior Court
of
County. F. Paul Dickerson III,
Judge. Affirmed as modified.
Daniel
G. Koryn, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Anthony Dasilva and Peter Quon, Jr.,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant
and appellant Jorge Luis Herrera appeals after he was convicted of one count of
resisting an executive officer by force or
violence (Pen. Code, § 69), and one count of misdemeanor battery on a
peace officer (Pen. Code, § 243, subd. (b)). He contends that the trial court erred in
instructing the jury on the intent required to find a violation of resisting a
peace officer; he argues that the court should have instructed, sua sponte,
that a specific intent was required.
Defendant also contends that the sentence on the misdemeanor battery
should be stayed pursuant to Penal Code section 654. We order the sentence on the misdemeanor
count stayed, but otherwise affirm the judgment.
FACTS AND
PROCEDURAL HISTORY
Riverside
County Deputy Sheriff Dawn Gouvion was on duty in the courthouse in Murietta on
the morning of March 17, 2011. She was
called into Department 204 to assist another deputy, as there was a large
number of people in the courtroom.
Defendant was seated in the jury box with other in-custody
defendants. Defendant was being assisted
by a Spanish-language interpreter.
Defendant’s
case was called by the court, and the prosecutor asked for a continuance in
defendant’s case. Defendant immediately
began screaming, “No postpone!†The
trial judge ordered defendant to stop screaming, but defendant continued to
scream and act aggressively.
Deputy
Gouvion approached the box where defendant was sitting. Through the interpreter, Deputy Gouvion told
defendant not to speak unless the judge spoke to him. Defendant ignored this instruction, however,
and continued yelling loudly; he also moved aggressively, standing up abruptly
while shouting very angrily. Defendant
was already wearing restraints—waist and leg chains, and handcuffs. Deputy Gouvion took hold of defendant by his
wrist and shoulder in a control hold, and began guiding him from the courtroom.
When
defendant realized he was being escorted from the courtroom, he became even
more upset. He kept screaming, and began
to struggle with the deputy, first pushing into her and then pulling sharply
away. As Deputy Gouvion maneuvered
defendant into a short hallway outside the courtroom, she reached for her radio
to call for backup assistance. Defendant
lunged toward her, knocking the radio from her hand and jamming her finger. Deputy Gouvion responded by pushing defendant
against a wall. He was still screaming,
and tried to turn toward her.
During
the entire time, Deputy Gouvion admonished defendant to relax, to calm down,
and to stop moving. The interpreter was
nearby and translated these orders to defendant. Deputy Gouvion was able to turn defendant to
face the wall and moved him to a corner of the hallway. She again radioed for backup, this time
successfully. As she waited for
assistance to arrive, she attempted to keep control of defendant, who was still
screaming and struggling aggressively.
Deputy
James Jason was the first to arrive on the scene to assist. He saw defendant trying to push into Deputy
Gouvion, and rotating from side to side to try to break her hold on him. Defendant was not obeying the deputy’s orders
to calm down and stop moving. Deputy
Jason stepped in and pinned defendant against the wall to restrict his
movements. This allowed Deputy Gouvion
to step back and recover her breath.
Defendant twisted his body from side to side, trying to break free. Other deputies then arrived and defendant was
eventually restrained. Deputy Jason saw
afterward that Deputy Gouvion had sustained a cut on her elbow.
The
interpreter testified at trial that defendant became very upset when the court
ordered the matter continued. Defendant
began shouting, “No postpone, no postpone.â€
When Deputy Gouvion took defendant out of the courtroom into the back
hallway, she saw defendant throw his chest and shoulder into the deputy,
slamming her against a wall. The deputy
responded by pushing defendant against a wall and holding him there, until
other deputies arrived to assist her.
Deputy
Gouvion testified at trial that, when she was relieved by Deputy Jason and the
other officers, she realized that her jammed finger was numb and painful. She was not able to bend her finger. She saw that defendant had been cut on his
elbow, and was bleeding down his arm. Later
that day, she discovered that she had suffered a cut to her own right elbow.
As
a result of this incident, defendant was charged with felony battery on a peace
officer (count 1) and resisting an executive officer by force or violence
(count 2). During trial, the prosecutor
amended the charge in count 1 to a misdemeanor battery on a peace officer. A jury convicted defendant of both charges.
The
court sentenced defendant to a determinate middle term of two years on count 2
(resisting by force or violence), and a concurrent term of 90 days on count
1.
Defendant
filed a timely notice of appeal.
ANALYSIS
I.
The Court Properly Instructed the Jury on the Intent
Required to Find a Violation of Penal Code Section 69
Defendant
contends that the trial court erred in failing to instruct, sua sponte, that
Penal Code section 69 was a specific intent crime, and to instruct the jury on
the required specific intent.
Penal
Code section 69 provides: “Every person
who attempts, by means of any threat or violence, to deter or prevent an
executive officer from performing any duty imposed upon such officer by law, or
who knowingly resists, by the use of force or violence, such officer, in the
performance of his duty, is punishable by a fine not exceeding ten thousand
dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section
1170, or in a county jail not exceeding one year, or by both such fine and
imprisonment.†The statutory language
creates “ ‘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.’ [Citations.]†(People
v. Lacefield (2007) 157 Cal.App.4th 249, 255.)
The
first type of offense, attempting to deter an officer from the performance of
his or her duties, “is ‘established by “ ‘[a] threat, unaccompanied by any
physical force’ †and may involve either an officer’s immediate or future
performance of his duty.
[Citation.]’ [Citation.] To avoid infringement on protected First
Amendment speech, ‘the term “threat†has been limited to mean a threat of
unlawful violence used in an attempt to deter the officer. [Citations.]
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.’
[Citations.]†(
954, 967.) This type of offense under
Penal Code section 69 “ ‘requires a specific intent to interfere with the
executive officer’s performance of his [or her] duties . . . .’ [Citations.]â€
(Ibid.)
However,
the second type of offense, actually resisting an executive officer, is a
general intent crime. (
Cal.App.4th 1411, 1421.)
Here,
the gravamen of the offense charged under Penal Code section 69 was of the
second type. Defendant made no threats
with intent to deter Deputy Gouvion from the present or future performance of
her duties. Rather, he simply acted
physically, with force and violence, in resistance to Deputy Gouvion’s efforts
to control him and escort him from the courtroom. In so doing, he rammed his chest and shoulder
into the deputy, and slammed her against the wall. “ ‘When the definition of a crime
consists of only the description of a particular act, without reference to
intent to do a further act or achieve a future consequence, we ask whether the
defendant intended to do the proscribed act.
This intention is deemed to be a general criminal
intent. . . .’
[Citation.]†(
p. 1419.)
Although
defendant complains that the trial court failed to instruct on both types of
offense encompassed within Penal Code section 69, there was no evidence that
defendant was guilty of the first type, attempting to deter by threats. A trial court has no duty to instruct sua
sponte on issues which are not supported by evidence in the record. (See People
v. Ponce (1996) 44 Cal.App.4th 1380, 1386 [“a trial judge must only give
those instructions which are supported by substantial evidenceâ€].)
II. The Concurrent Sentence on Count 1,
Misdemeanor Battery on a Peace
Officer,
Should Be Stayed
Defendant
also argues that the trial court erred in imposing an unstayed concurrent
sentence of 90 days on the misdemeanor count of battery on a peace
officer. The People concede that the
convictions of both offenses were based on the same facts. Accordingly, Penal Code section 654 requires
that the misdemeanor sentence be stayed.
DISPOSITION
The
trial court was not required to instruct sua sponte on the issue of specific
intent. The type of violation with which
defendant was charged under Penal Code section 69 was actual resistance, not
attempted deterrence. Actual resistance
to an executive officer is a general intent crime.
Because
both convictions—resisting an executive officer and misdemeanor battery on a
peace officer—are based upon the same acts, the misdemeanor sentence on count 1
must be stayed pursuant to Penal Code section 654. We order the trial court to correct the
sentencing minute order to reflect that the sentence on count 1 is stayed, and
direct the court to transmit the corrected minute order to the Riverside
County
Sheriff’s Department. With the exception
of the correction of the judgment to stay the sentence on count 1, the judgment
is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
McKINSTER
Acting P. J.
We concur:
RICHLI
J.
KING
J.
