P. v. LaFavor

Filed 8/21/06 P. v. LaFavor CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kern County. Michael G. Bush and Charles P. McNutt, Judges.

Larry L. Dixon, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Brian Alvarez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Doyle Lee LaFavor appeals from a conviction of attempting to deter an executive officer from his or her duty. (Pen. Code, § 69.) LaFavor argues that the trial court erred in not providing a unanimity instruction. He contends the instruction was required because his resistance involved two distinct incidents of conduct. As a result, the jury could have reached different judgments as to which act formed the basis for their verdict. LaFavor argues that the omission of this instruction deprived him of his constitutional rights to due process and a unanimous jury verdict. He additionally argues that his sentence was improper under Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We conclude that the unanimity instruction was not required, but that even if it were, the omission resulted in harmless error. Further, the California Supreme Court has rejected LaFavor's position regarding Blakely. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

On December 5, 2004, officers arrived at a residence in the Ford City area to serve a search warrant. The warrant included the authority to search for LaFavor. Upon law enforcement's arrival, LaFavor initially appeared at the door, but then shut the door. LaFavor testified that, after he shut the door, he entered the home's attic. From the attic, LaFavor entered the evaporative cooling ductwork. He proceeded through the duct along the home's back exterior wall connecting to a swamp cooler. A cross-section of the aluminum duct measured approximately one and one-half square feet. Positioned at the rear of the home, Kern County Sherriff's Deputy Skidmore moved the evaporative cooler exposing an opening to the duct and LaFavor's feet. Skidmore identified himself and directed LaFavor to exit the duct. After LaFavor refused to exit, Skidmore attempted to pull LaFavor from the duct. He testified that LaFavor kicked and pulled his feet from Skidmore's grasp, trying to climb back up the duct. Skidmore grabbed LaFavor's feet again and successfully pulled him from the duct with LaFavor landing on the ground. Taft City Police Department Officers Eveland and Little joined Skidmore in the backyard. As LaFavor attempted to stand, Eveland and Little brought him back to the ground. LaFavor began to swing his arms violently and to kick his legs despite the officers' instructions to stop resisting.

During the struggle, LaFavor grabbed a nearby porch pole with his right arm and, using what Little described as â€