P. v. Nagy
Filed
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY NAGY, Defendant and Appellant. | 2d Crim. No. B188506 (Super. ( |
Anthony Nagy appeals from the judgment entered after a jury convicted him of two counts of elder abuse (Pen. Code, § 368, subd. (b)(1))[1], two counts of assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)((1)), and two counts of obstructing/resisting an executive officer (§ 69). The jury found that appellant personally used a deadly weapon in the commission of the elder abuse counts (§ 12022, subd. (b)(1)). Appellant was sentenced to four years state prison. We affirm.
Facts and Procedural History
At
An officer knocked on the exterior wall, announced police, and ordered appellant to come out. Appellant peeked out the front door, ducked back in, and slammed the door shut.
Officer Eleanor Hill positioned herself at the back door and saw the Heits coming towards the back door. Appellant, however, stepped in front of them and nudged them back towards the living room.
Officer Hill banged on the back door, shouted " LAPD," and repeatedly ordered appellant to open the door. A male voice inside said, " Don't open the door." Officer Hill saw the back door slowly open and assisted Twila Heit out.
Appellant and Ferenc Heit were several feet from the backdoor. Appellant held a knife to Ferenc's back and nudged him.
Officer Hill pointed a firearm at appellant, ordering him to drop the knife. Appellant started to walk away, then turned and advanced with the knife after Officer Hill grabbed Ferenc Heit. Appellant was within stabbing distance of Officer Hill, Heit, and a third officer, Officer Jeff Johnson. Officer Hill considered it a " defense of life" situation.
Officer Johnson repeatedly ordered appellant to drop the knives and shot a beanbag, hitting appellant in the abdomen. Appellant said " Oh shit" and dropped the knives. After appellant was handcuffed, a third knife was found on his person.
Twila Heit told the police that appellant had been drinking, grabbed two kitchen knives, and followed them around the house. When Twila told him to leave her alone, appellant became irate and held a knife to her neck. After Twila called the police, appellant became more upset. Twila was afraid that he was going to kill her.
Appellant was charged with elder abuse, assault with a deadly weapon, and obstructing/resisting Officer Hill (count 7; § 69). At the close of the prosecution's case, the trial court granted a motion to amend the information and add a count for obstructing/resisting Officer Johnson (count 8; § 69). Appellant moved to dismiss the new count based on insufficiency of the evidence, but the trial court denied the motion. (§ 1118.1.)
Multiple Convictions For Obstructing/Resisting An Officer
Appellant argues that the evidence does not support the conviction for two counts of obstructing/resisting an officer. (§ 69.)[2] In order to convict, the prosecution had to prove that appellant willfully and unlawfully attempted to deter or prevent an officer from performing his or her duty by means of threats or violence. (CALJIC 7.50) " [Section 69] 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.]" (In re Manuel G. (1997) 16 Cal.4th 805, 814.) A threat, unaccompanied by physical force, may support a conviction for the first type of offense under section 69. (Ibid.)
Appellant asserts that Officers Hill and Johnson acted as a police unit and the evidence supports only one count of obstructing/resisting an officer. We reject the argument. Unless one offense is necessarily included in the other, multiple convictions can be based upon a single criminal act or an indivisible course of criminal conduct. (§ 954; People v. Benavides (2005) 35 Cal.4th 69, 97.)
The evidence shows that appellant used threats of violence to deter Officer Hill from performing her duties in rescuing the Heits. Appellant refused to obey orders and threatened Ferenc Heit with a knife. As Officer Hill pulled Heit out the back door, appellant advanced with the knives and came within stabbing distance (three to five feet) of Heit and Officer Hill. Officer Hill feared for her life and stated that it would have been appropriate to shoot appellant had Heit not been in the way.
Similar threats of violence were made on the second officer, Officer Johnson. Officer Johnson stood at the back door about seven feet from appellant and considered it a " deadly force-type situation." Appellant kept advancing with the knives and could have killed or seriously injured Officer Johnson. Other officers were at the scene, but not in striking distance.
Although appellant entertained a single principal objective, he used threats of violence to deter Officers Hill and Johnson from performing their duties. " [Section 69] is designed to protect police officers against violent inference with the performance of their duties. While the object of the offense may not be to attack a peace officer, its consequence is frequently to inflict violence on peace officers, or subject them to the risk of violence." (People v. Martin (2005) 133 Cal.App.4th 776, 782.)
It is undisputed that appellant threatened Officers Hill and Johnson and obstructed the rescue of the grandparents. Section 69 protects officers against violent interference with the performance of their duties. (Ibid.; People v. Buice (1964) 230 Cal.App.2d 324, 336.) Just as a defendant can be convicted of multiple assaults by pointing a firearm at two officers, a defendant can suffer multiple convictions for obstructing/resisting an officer (§ 69) where threats of violence are directed at more than one officer. (See e.g., People v. Thompson (1949) 93 Cal.App.2d 780, 782 [defendant pointed firearm at two officers, convicted of two counts of assault with a deadly weapon].)
Appellant cites cases in which the defendant was charged with one count of resisting an officer after the defendant scuffled with several officers. (People v. Martin, supra, 133 Cal.App.4th at p. 779-780 [defendant wrestled with four officers but charged with one count of resisting]; People v. Labaer (2001) 88 Cal.App.4th 289, 291 [defendant slapped and hit two officers but charged with one count of resisting]; People v. Belmares (2003) 106 Cal.App.4th 19, 22 [same].)
These cases do not support the argument that it is a factual or legal impossibility for a defendant to obstruct/resist more than one officer during the course of an indivisible transaction. If a defendant, by force or violence, obstructs/resists more than officer and endangers the safety of each officer, the defendant can be convicted of multiple counts of violating section 69.[3] (See e.g., People v. Martin, supra, 133 Cal.App.4th at p. 780 [conviction for resisting an officer and battery on an officer]; People v. Belmares, supra, 106 Cal.App.4th at p. 33 [separate convictions for deterring an officer and resisting].)
The decision to charge appellant with more than one count of obstructing/resisting an officer was a matter of prosecutorial charging discretion and not subject to appellate review. (See e.g., People v. Vargas (2001) 91 Cal.App.4th 506, 553.) Substantial evidence supports the conviction for two counts of obstructing/resisting an officer. (§ 69.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
YEGAN, Acting P.J.
We concur:
COFFEE, J.
PERREN, J.
Burt Pines, Judge
______________________________
Karyn H Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
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[1] All statutory references are to the Penal Code.
[2] 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 in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment."
[3] The trial court imposed a two year concurrent sentence for obstructing/resisting Officer Hill (count 7), and stayed the sentence on count 8 as to Officer Johnson. (§ 654.) After the notice of appeal was filed, the trial court issued an amended abstract of judgment reflecting that counts 3 and 4 for assault with a deadly weapon on the grandparents were stayed. (§ 654.)
