Filed 4/13/18 P. v. Morgan CA5



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 CALIFORNIA
FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MATTHEW DEANTE MORGAN,

Defendant and Appellant.

F075694

(Super. Ct. No. 1496628)


OPINION

THE COURT*
APPEAL from a judgment of the Superior Court of Stanislaus County. Joseph R. Distaso, Judge.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-


Defendant Matthew Deante Morgan contends on appeal that the evidence presented at trial was insufficient to support his conviction for felony resisting an officer. We affirm.
PROCEDURAL SUMMARY
On November 16, 2016, the Stanislaus County District Attorney charged defendant with failure to register as a sex offender (Pen. Code, § 290.015, subd. (a); count 1) and felony resisting an officer (§ 69; count 2). The information further alleged that defendant had suffered a prior serious felony conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served a prior prison term (§ 667.5, subd. (b)).
On January 24, 2017, defendant pled no contest to count 1. A jury was empaneled to try count 2.
On January 25, 2017, the jury found defendant guilty on count 2. The next day, the trial court found the special allegations true.
On April 7, 2017, the trial court sentenced defendant to eight years four months: six years on count 1, 16 months on count 2, plus a one-year enhancement for the prior prison term.
On May 22, 2017, defendant filed a notice of appeal.
FACTS
On October 22, 2015, Special Agent James Bottge was heading the Fugitive Apprehension Team assigned to apprehend defendant, a high-risk, at-large parolee for whom parole had issued an arrest warrant. Bottge began a preliminary investigation on October 13, 2015, and on October 22, 2015, his team conducted surveillance of an apartment for about two hours.
While Agent Russell Skinner, also part of the Fugitive Apprehension Team, was covering one of the apartment’s windows, defendant attempted to jump out of the window. Skinner told him to get down and pointed his Taser at him. Defendant jumped back inside the room, closed the window, and put a mattress against it. Skinner heard lots of banging and movement inside.
After defendant’s escape attempt, Bottge brought in more agents and tightened their perimeter. He also requested police officers and a K-9 unit. Bottge gave verbal commands to defendant about 50 times, stating they had an arrest warrant and asking him to come out. Someone did come out of the apartment, but defendant stayed inside and never responded or complied. Bottge heard a lot of commotion inside the bedroom.
Police Officer Mike Rodriguez arrived with his K-9 unit, Cain. By this time, the apartment’s front door was open, and Rodriguez could see the closed bedroom door inside. He loudly announced his presence and stated he would send in his dog if defendant did not come out. Rodriguez yelled this standard warning at least three times. At that point, he commanded Cain to enter the apartment and search for defendant. Cain alerted to the bedroom door. Rodriguez and four other officers entered the apartment and confirmed that the rest of the apartment was clear. Rodriguez commanded defendant to come out three more times, stating he would get bitten by the dog if he did not. Defendant did not respond.
Rodriguez tried to open the bedroom door, but it was blocked by something heavy. An agent deployed the steel battering ram and eventually made a large hole in the bedroom door. Through the hole, Rodriguez could see a heavy wooden dresser, a little more than three feet tall, up against the door. He tried to push the dresser but it would not budge. He could see defendant standing inside the bedroom about five feet from the door. Rodriguez helped Cain through the hole into the bedroom and commanded that he apprehend defendant. Cain bit defendant on his lower leg and latched on. As Rodriguez prepared to enter, defendant suddenly approached. Defendant reached over the dresser and through the hole, grabbed the center of Rodriguez’s uniform shirt, and pulled Rodriguez toward him. Rodriguez feared defendant would reach for his gun, so he hit defendant once on the face and he fell to the floor. Rodriguez came through the hole and over the dresser, entered the bedroom, and told defendant to put his hands behind his back. As Rodriguez entered the bedroom, the dresser tipped over and fell onto his foot, fracturing it. Defendant continued to refuse to comply and tried to roll over and get back up on his feet. Rodriguez pushed him back down and was able to gain control over him. Other officers entered and handcuffed defendant. Rodriguez then commanded Cain to release defendant.
According to usual procedure, defendant was taken to the hospital for examination of his dog bites. Rodriguez also went to the hospital for treatment of his own injury.
DISCUSSION
Defendant contends his conviction for felony resisting an officer under section 69 was not supported by sufficient evidence because there was “no suggestion in the evidence presented that he engaged in any aggressive actions towards the officers or that he intended to assault or resist any officer by force or violence.” He notes that Rodriguez did not state in his original police report that defendant grabbed his shirt and pulled Rodriguez toward him; the report stated only that defendant “ ‘reached for my shirt.’ ” He argues that Rodriguez’s testimony to this effect “embellished,” and was inconsistent with, his report.
“ ‘To determine the sufficiency of the evidence to support a conviction, an appellate court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 553.) We must draw all reasonable inferences in support of the judgment. (People v. Wader (1993) 5 Cal.4th 610, 640.) “It is not our function to reweigh the evidence, reappraise the credibility of witnesses, or resolve factual conflicts, as these are functions reserved for the trier of fact.” (People v. Tripp (2007) 151 Cal.App.4th 951, 955; People v. Young (2005) 34 Cal.4th 1149, 1181.) We look for substantial evidence, and we may not reverse a conviction for insufficiency of the evidence unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Although we review the whole record, “[t]he uncorroborated testimony of a single witness is sufficient to sustain a conviction, unless the testimony is physically impossible or inherently improbable.” (People v. Scott (1978) 21 Cal.3d 284, 296; People v. Panah (2005) 35 Cal.4th 395, 489.) Furthermore, “ ‘ “ ‘[c]ircumstantial evidence may be sufficient to connect a defendant with the crime and to prove his guilt beyond a reasonable doubt.’ ” ’ ” (People v. Bradford (1997) 15 Cal.4th 1229, 1329.) If the circumstances, plus all the logical inferences the jury might have drawn from them, reasonably justify the jury’s findings, our opinion that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment. (Ibid.; People v. Panah, supra, at p. 488.)
Section 69, which defines the crime of resisting an executive officer, provides in relevant part:
“Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her 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.” (§ 69, subd. (a).)
“The statute 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.] … [¶] A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69. [Citation.] To avoid the risk of punishing protected First Amendment speech, however, 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.” (In re Manuel G. (1997) 16 Cal.4th 805, 814-815.) “The [first type of offense] ‘requires a specific intent to interfere with the executive officer’s performance of his duties.’ ” (People v. Orloff (2016) 2 Cal.App.5th 947, 952.) The second type of offense, forceful resistance of an officer, is a general intent crime (People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1420) and “by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer (People v. Bernal (2013) 222 Cal.App.4th 512, 520).”
The parties agree that, in this case, the prosecution proceeded on the second theory, resisting an officer by force or violence. Defendant argues the prosecution failed to prove that he used force or violence to resist Rodriquez. The record, however, clearly supports a finding that defendant used force against Rodriguez when he grabbed his shirt and pulled him toward defendant, causing Rodriguez to fear defendant might reach for his gun. Defendant’s argument that Rodriguez’s testimony embellished, and was inconsistent with, his original police report merely raises a question of credibility—which we do not entertain here. Instead, we defer to the jury’s credibility determinations. As set forth above, our task is simply to assess whether there was sufficient evidence to support the jury’s determination, not whether that evidence was credible. The only exception to this principle is where the testimony is “physically impossible or inherently improbable.” (People v. Young, supra, 34 Cal.4th at p. 1181; People v. Headlee (1941) 18 Cal.2d 266, 267 [“[w]here … the evidence relied upon by the prosecution is so improbable as to be incredible, and amounts to no evidence, a question of law is presented which authorizes an appellate court to set aside a conviction”].) That exception does not apply here. In sum, the jury believed Rodriguez’s testimony, and it constituted substantial evidence of defendant’s use of force against Rodriguez during the performance of his duties.
DISPOSITION
The judgment is affirmed.