Filed 11/13/18 P. v. Nieber CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Richard J. Oberholzer, Judge. Affirmed.

Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Paige B. Hazard, Deputy Attorneys General, for Plaintiff and Respondent.

A jury found Toren Nieber, a jail inmate, guilty of resisting an executive officer by means of force or violence. (Pen Code, § 69, subd. (a).)[1] The jury could not reach a verdict on a second count (battery by an inmate on a noninmate, § 243.15), and the court later dismissed this charge. In a separate trial, Nieber had been convicted on a murder charge and sentenced to 90 years to life. On the current conviction, the court sentenced him to an additional 32 months (16 months doubled because of a prior strike).

Nieber contends the court erred by failing to sua sponte instruct the jury on misdemeanor resisting a peace officer (§ 148(a)(1)) as a lesser included offense of felony resisting an executive officer with force or violence (§ 69(a)). We conclude the court was not required to give this instruction. Based on the manner in which this case was presented to the jury, there was no evidence Nieber committed only the lesser offense of resisting the officer (§ 148(a)(1)) without also committing the greater offense of resisting the officer with force or violence (§ 69(a)).

FACTUAL SUMMARY

In performing his duties as an officer at a jail facility, Corporal Brandon Lopez responded to an assistance call from the inmate housing modules. When he arrived, he learned there had been a fight resulting in an injured inmate, and the suspects (Nieber and his cellmate Johnson) were in their cell. Corporal Lopez was told the perpetrator was an inmate with a mohawk-style haircut (Johnson).

After one of the other deputies removed Johnson from the cell, Nieber shut the cell door. Corporal Lopez then called for the cell door to be opened so he could remove Nieber from the cell and question him about the fight. When the door opened, Corporal Lopez said to Nieber, " 'Come on man. Let's go.' " Nieber ignored him. Corporal Lopez then said, " 'Maybe, you didn't hear me. I said, 'Let's go.' "

In an aggressive tone, Nieber responded, " 'What are you going to do about it, you fucking punk?' " As Nieber turned around, Corporal Lopez noticed Nieber's hands were clenched. Based on his training and experience, Corporal Lopez believed this stance signified that Nieber may want to fight.

Corporal Lopez then moved into the cell and planned to issue another command. Corporal Lopez testified that before he could do so, Nieber lifted his leg and struck him in the lower abdomen area using what Corporal Lopez described as a "push-kick" motion. Corporal Lopez said that in response he tried to strike Nieber with his fist but missed. As Corporal Lopez fell to his left, several other deputies rushed in to help. A scuffle ensued as the deputies tried to obtain control of Nieber, who continued to ignore commands and resist by thrashing around. Corporal Lopez sprayed Nieber with pepper spray; another deputy punched Nieber in the face; and another deputy punched Nieber in the torso.

The deputies finally got control of Nieber by dropping him to the ground, putting him in handcuffs, and strapping him to a gurney. Once he was strapped on the gurney, Nieber said " 'Do you think I care about this? I'm down on murder.' "

Corporal Lopez was not injured, but his pants were torn. Nieber had a black eye.

Nieber did not testify, but his counsel extensively cross-examined the prosecution witnesses in an attempt to show bias, inconsistencies in the officers' testimony, and motive to mispresent the facts.

Nieber was charged with two counts. First he was charged with violating section 243.15 (battery by an inmate on a noninmate). On this count, the court instructed the jury that the prosecution was required to prove Nieber "willfully touched [Corporal] Lopez in a harmful or offensive manner." (See CALCRIM No. 2723.)

Second, Nieber was charged with violating section 69, which can be committed in two ways: (1) attempting by means of any threat or violence to deter or prevent an executive officer from performing any duty, or (2) knowingly resisting such officer by the use of force or violence. (§ 69(a).) Although the complaint alleged both statutory grounds, the court instructed the jury only on the latter ground: resisting an officer by use of force or violence. With respect to this offense, the court additionally instructed the jury that "[y]ou must not find the defendant guilty of [the section 69 count] unless you all agree that the People have proved specifically that the defendant committed the offense . . . by kicking Corporal Lopez. Evidence that the defendant may have committed the alleged offense in another manner is not sufficient for you to find him guilty of the offense charged . . . ." (Italics added.)

During his closing argument, the prosecutor focused the jury's attention on the need to decide whether Nieber kicked Corporal Lopez. The prosecutor said, "We're here today because he kicked Corporal Lopez, and that's it. . . . All that matters is that [Nieber], as an inmate, kicked Corporal Lopez. All that matters in this case is that guy right there [Nieber] kicked that guy [Corporal Lopez]." In discussing the evidence of what occurred after the kick, the prosecutor said "[y]ou heard about thrashing around, . . . and pushing back and all that stuff that happened after the kick. Okay? I don't care about all that stuff. . . . But the act that I care about, for the purposes of this crime, is . . . kicking the corporal." The prosecutor emphasized that when the kick occurred, Corporal Lopez was merely investigating the incident, and therefore the issue regarding the reasonableness of the force after the kick was not relevant to the jury's consideration of the section 69(a) charge.

In response, defense counsel's theory was that Corporal Lopez and the other deputies who testified about the kick were not credible, and that these officers fabricated the kick incident to justify their later aggressive physical actions against Nieber (which included multiple deputies punching him). At the conclusion of his argument, defense counsel said, "But one thing [the prosecutor and I] agree on is . . . about the kick [being the act that is the basis for the charge]. And if you have any doubt from this evidence that kick happened, any reasonable doubt, . . . you can come back and you can render a verdict of not guilty, and that will be the end of it."

In rebuttal, the prosecutor again focused on the kick, stating "If there was a kick, you've got to convict. Your job today is to assess the credibility of these [deputies]. They stood up before you. They told you what happened . . . . Either they're straight up lying to you, or they're telling the truth. And if you think they're lying, walk him. Okay? Find him not guilty, and send him on his way. That is justice. But if you don't think they're lying, if he kicked Corporal Lopez, then you have to find him guilty."

The jury returned a verdict of guilty on the resisting with force or violence count (§ 69(a)), but was unable to reach a verdict on the battery count. The battery count was later dismissed.

DISCUSSION

Nieber contends the trial court erred by failing to sua sponte instruct the jury on misdemeanor resisting a peace officer (§ 148(a)(1)) as a lesser included offense of felony resisting an executive officer (§ 69(a)). We disagree.

A trial court must sua sponte instruct on any lesser offense " ' "necessarily included" ' " in the charged offense, if there is substantial evidence that only the lesser crime was committed. (People v. Smith (2013) 57 Cal.4th 232, 239-240 (Smith).) " 'This . . . rule . . . encourag[es] the most accurate verdict permitted by the pleadings and the evidence[,] . . .' [and] '. . . prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other . . . .' " (Ibid., citations omitted.) "[S]ubstantial evidence," in this context, is not " ' " 'any evidence, no matter how weak' " ' "; it is " 'evidence that a reasonable jury could find persuasive.' " (People v. Williams (2015) 61 Cal.4th 1244, 1263.)

Section 69(a) imposes criminal liability on those "who attempt[], by means of any threat or violence, to deter or prevent an executive officer from performing any duty . . . , or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty . . . ." (Italics added.) Section 148(a)(1) imposes criminal liability on "[e]very person who willfully resists, delays, or obstructs any public officer . . . in the discharge or attempt to discharge any duty of his or her office or employment . . . ." Where, as here, an accusatory pleading alleges the portion of section 69(a) prohibiting a person from "knowingly resist[ing], by the use of force or violence," section 148(a) is a lesser included offense of this crime. (Smith, supra, 57 Cal.4th at pp. 241-242.) This is because an accused cannot violate section 69(a) by forcefully resisting an officer, without also violating section 148(a)(1) by resisting the officer. (Smith, at pp. 241-243; see People v. Carrasco (2008) 163 Cal.App.4th 978, 985 (Carrasco) ["an accused cannot have resisted arrest forcefully without also having resisted arrest"].)

But the fact that section 148(a)(1) is a lesser included offense of section 69 does not resolve the issue here. A court is required to instruct on a lesser included offense only if there is substantial evidence that the defendant could have committed the lesser offense without also committing the greater offense. (Smith, supra, 57 Cal.4th at pp. 244-245.) If the defendant could not commit the lesser without also committing the greater, there would be no need to give the lesser instruction. Thus, a court is required to sua sponte instruct on section 148 as a lesser included offense only if there was substantial evidence from which the jury could conclude that only the lesser crime (§ 148(a)(1)) was committed and not the greater offense (§ 69(a)). (Smith, at pp. 244-245.)

Applying these principles here, the court did not have a duty to instruct on section 148(a)(1) because there was no evidence that Nieber resisted the law enforcement officers without the use of force or violence. The prosecutor argued to the jury, and defense counsel agreed, the People met their proof burden on the section 69 offense only if they proved Nieber kicked Corporal Lopez. The court likewise told the jury that it could not find Nieber guilty of the section 69 offense unless the "People have proved specifically that [Nieber] committed the offense . . . by kicking Corporal Lopez." (Italics added.) The court said: "Evidence that the defendant may have committed the alleged offense in another manner is not sufficient for you to find him guilty of the offense . . . ."

By telling the jury that a guilty verdict on the section 69(a) count must be predicated on a finding that the prosecution proved Nieber engaged in the act of "kicking Corporal Lopez," there was no basis for the jury to find Nieber resisted the officer without force or violence. Resisting an officer by kicking is, by definition, an act of resistance committed with force or violence. (See People v. Bernal (2013) 222 Cal.App.4th 512, 517-520 (Bernal); see also Smith, supra, 57 Cal.4th at pp. 237, 245.) Although the jury could have found the officers were not credible and the kick did not occur, there was no evidence to support that if the kick occurred, it was not forceful or violent resistance within the meaning of the statute. (Bernal, at pp. 517-520; see Smith, at p. 245; Carrasco, supra, 163 Cal.App.4th at pp. 985-986 [only the greater offense was committed where defendant would not remove his hand from a duffle bag and "had to be physically taken to the ground" after failing to comply with orders]; People v. Martin (2005) 133 Cal.App.4th 776, 780 [defendant who "jerked his body backwards and wrapped his leg around" an officer's leg to avoid arrest used force or violence under § 69].)

On appeal, Nieber acknowledges that the prosecution "chose the push-kick" as the action that was the basis for the section 69 offense but argues "the jury could easily have found that the use of [his] foot was simply an act of resistance and not forceful or violent[,] satisfying the elements of section 148 and not those set forth in section 69."

This argument reflects a misunderstanding of the "force or violence" element of section 69(a). All that is necessary on this element is that the defendant engaged in "forceful resistance" to the officer's commands. (Bernal, supra, 222 Cal.App.4th at p. 518; see Smith, supra, 57 Cal.4th at pp. 237, 245 [only the greater offense was committed where the defendant "physically resisted" jail guards].) Thus, forceful or violent resistance to an officer gives rise to a violation of section 69 even without proof the force was directed toward or used on any officer. (Bernal, at pp. 518-520.) A forceful resistance is likewise sufficient even if the defendant did not intend to harm the officer. (Ibid.) Accordingly, even assuming the jury could have found that Nieber's "kick" reflected only the lifting of his leg without actively pushing the leg, this affirmative action would constitute the necessary force or violence to establish a section 69 violation. If Nieber resisted the officers at all, he did so forcefully. Thus, no reasonable jury could have concluded he violated section 148(a)(1), but not section 69(a).

Nieber alternatively argues that because the battery charges and the resisting conviction were both based on the "kick," and the jury was unable to reach a verdict on the battery offense, "the deadlocked jury showed their indecisiveness regarding the force element" and therefore it is possible the jury would have found defendant guilty only of the lesser offense. This argument does not affect the conclusion that under the evidence presented and the instructions given, if the resisting crime was committed, it was committed with force or violence.

Additionally, contrary to Nieber's suggestions, the jury's guilty finding on the section 69 offense was not inconsistent with its inability to agree on the battery offense. The differing results can be explained by the difference in a battery and a section 69 resisting offense. A battery requires an offensive or harmful touching. (People v. Shockley (2013) 58 Cal.4th 400, 404-405.) However, a section 69 violation does not require the use of force upon the person of an executive officer. (Bernal, supra, 222 Cal.App.4th at pp. 518-520.) Section 69 is thus violated by force or violence that does not necessarily amount to a battery.

The jury's verdict reflects its conclusion that Nieber kicked at Corporal Lopez, but may not have touched him. This conclusion does not undermine a determination that Nieber resisted Corporal Lopez with force or violence. By kicking his leg upward toward Corporal Lopez as the officer attempted to remove him from the cell, Nieber was physically resisting the removal within the meaning of section 69(a).

DISPOSITION

Judgment affirmed.

HALLER, J.

WE CONCUR:

NARES, Acting P. J.

AARON, J.