Filed 1/9/18 P. v. Orne CA4/3





NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


THE PEOPLE,

Plaintiff and Respondent,

v.

CHARLES RODNEY ORNE,

Defendant and Appellant.

G053562

(Super. Ct. No. 14HF1561)

O P I N I O N
Appeal from an judgment of the Superior Court of Orange County, W. Michael Hayes, Judge. Affirmed.
John E. Edwards, under appointment by the Court of Appeal, for Defendant and Appellant.
Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
* * *
A jury convicted Charles Rodney Orne of aggravated assault on a police officer (count 1; Pen. Code, § 245, subd. (c); all statutory references are to this code) resisting a police officer (count 2; § 69), and two misdemeanor counts of hit and run driving with property damage. In a bifurcated proceeding, Orne admitted three prison priors, a serious felony prior conviction, and a prior strike (§§ 667.5, subd. (b); 667, subd. (a)(1)). The trial court sentenced Orne to 13 years in prison, consisting of the midterm of four years on count 1, doubled to eight years based on the strike, plus five years for the prior serious felony. Orne contends the trial court’s instructions directed the jury’s verdict on counts 1 and 2 by requiring the jury to conclude the officer acted lawfully when he initiated a search of Orne’s car based on the probation status of Orne’s passenger. Orne also argues the trial court erred by omitting a self-defense exception in its instructions on counts 1 and 2. As we explain below, read as a whole, the trial court’s instructions did not direct the jury’s verdict and fully instructed the jury on self-defense. We therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On May 21, 2014, around 7:00 p.m., Irvine Police Officer Nick Kim drove his marked police vehicle into the parking and fueling area of a gas station on Macarthur Boulevard near the airport. Kim noticed a man smoking a cigarette and standing alone across from a black BMW that appeared “used,” “weathered,” and “dusted over,” yet had paper license plates that Kim associated with the sale of new vehicles. Kim viewed the station as a “high call” location, at least for the Irvine area, because he had participated in 40 to 50 arrests at the station in the last five years, including several involving stolen vehicles.
The paper plates caught Kim’s attention because, in his training and experience, “most used vehicles will have a set of [permanent] plates assigned to it,” but this “was clearly a used vehicle,” and “a lot of times some suspects will put paper plates on a vehicle to conceal the [actual] license plate of that vehicle.”
Pulling his vehicle up next to the man who was smoking, Kim asked “what’s going on,” to which the man responded that he was waiting for a ride to go to his mother’s home. Kim asked for and learned the man’s name was Douglas Fluor, and when Kim asked if he was on probation or parole, Fluor initially denied either applied, and then admitted he was on probation. Fluor expressly acknowledged he was “subject to search and seizure” conditions as part of his probation.
When Kim asked Fluor how he had arrived at the gas station, Fluor pointed to the black BMW. Kim continued to question Fluor and discovered he had been a passenger in the vehicle and that, while unsure about who the owner was, Fluor indicated “his buddy” the driver was inside the convenience store. Suspecting the BMW may have been stolen, Kim decided to search the vehicle based on Fluor’s probation status. As Kim explained at trial, “Based on Mr. Fluor being on probation and subject to search and seizure and him coming in that vehicle and being a passenger of that vehicle, I made a determination that I was going to search the passenger portion of that vehicle.”
As Kim gathered information from Fluor, he noticed another man, whom Kim later identified as Orne, approach the black BMW after leaving the convenience store. Following behind Orne, Kim asked him if he were on probation or parole, whether he had identification, and if the BMW belonged to him. Orne denied being on probation or parole, explained it was “his friend Stephanie’s car” and, as he walked around the back of the BMW to the passenger side, stated he “was going to get” his identification. Orne opened the BMW’s door and glove box to search for his identification, but after he did not locate it immediately, Kim became “concern[ed],” presumably for his safety because, as he testified at trial, “I wasn’t sure what he was reaching for.” Kim then “asked him if he could stop searching through the glove box and come towards me.” As Kim also phrased it, “I asked him if he could come back to my area to talk to me.” Orne closed the passenger door, Kim turned and, with Orne “five, 10 feet” behind him, Kim “started leading the way and walking back towards Mr. Fluor.”
But when Kim reached a point about 15 feet behind the BMW, he realized Orne had run back to the BMW’s driver’s side and entered the vehicle, locked the doors, and started the engine. Kim approached the driver’s side, yelled at Orne to open the door, and tried to open it himself, but Orne began driving in reverse, causing Kim to jump back to avoid being struck. Kim drew his firearm in his right hand, hit the BMW’s window with his left hand, again attempted to open the locked door, and, as the vehicle drove away, Kim struck and broke the back quarter-panel window on the driver’s side with his right hand in a vain attempt to stop the vehicle. In fleeing, Orne drove the car toward Kim, causing him to jump back again, and Orne struck another vehicle as he exited the station.
Kim “got on the radio” to alert other officers to stop the vehicle. When Kim questioned Fluor whether the BMW had been stolen, Fluor replied that “it could be.” Kim later learned the vehicle was not stolen, but in fact belonged to Orne’s girlfriend Stephanie.
II
DISCUSSION
A. The Trial Court’s Instructions Did Not Direct the Jury to Reach a Verdict
Orne contends the trial court’s instructions directed the jury to reach a particular result on an element of both counts 1 and 2, namely that the officer was lawfully performing his duties when Orne committed his aggravated assault and unlawful resisting offenses. Assault on a peace officer requires that “the peace officer . . . is engaged in the performance of his or her duties” at the time of the assault. (§ 245, subd. (c).) Similarly, unlawful resisting or interfering with a peace officer’s duties requires deterring an officer “from performing any duty imposed . . . by law” or resisting the officer “in performance of his [ ] duty.” (§ 69.) The “long-standing rule” in California is that a person cannot be convicted of a crime against a peace officer engaged in performing his or her duties unless the officer was “acting lawfully at the time the offense against the officer was committed.” (In re Manuel G. (1997) 16 Cal.4th 805, 815.)
A directed verdict on a contested factual issue violates the defendant’s constitutional rights in a jury trial because the Fifth and Sixth Amendments “require criminal convictions to rest on a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.” (United States v. Gaudin (1995) 515 U.S. 506, 509-510.) Consequently, “instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendant’s rights . . . .” (People v. Flood (1998) 18 Cal.4th 470, 479-480.) We therefore reject the Attorney General’s argument that Orne forfeited his instructional challenge; “‘“[e]ven in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence”’” (People v. Mathson (2012) 210 Cal.App.4th 1297, 1311 (Mathson), which a directed verdict would contravene. We review de novo a claim the court erroneously instructed the jury. (Ibid.)
We might agree with Orne that the trial court’s instructions directed the jury to conclude Kim was lawfully performing his duty at the time of Orne’s alleged offenses if, like Orne, we focused only on the instructional language he highlights. Specifically, Orne claims the trial court removed the question of Kim’s lawful performance of his duties from the jury’s consideration with the following language: “A peace officer may lawfully search the passenger compartment of a motor vehicle in which a probationer who is subject to search and seizure has been traveling.” (Italics added.) The court added the language to the instructions governing assault on a peace officer (CALCRIM No. 860) and resisting a peace officer (CALCRIM No. 2652), and to its general instruction on the lawful performance of a peace officer’s duties (CALCRIM No. 2670). Orne complains that this language directed the jury to reach a particular conclusion with “absolute statements in the instructions on each of the felony counts that an officer may search a vehicle in which a probationer has been riding.”
It is axiomatic, however, that the trial court’s instructions must be considered as a whole, not in isolation. Indeed, the jury was instructed as much. (CALCRIM No. 200 [“Pay careful attention to all of these instructions and consider them together”].) The same principle applies on appeal. “Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury.” (People v. Holt (1997) 15 Cal.4th 619, 677.)
Here, the instructions as a whole demonstrate the trial court did not direct the jury to reach a verdict as Orne claims. To the contrary, the court’s general instruction on “Lawful Performance: Peace Officer” (CALCRIM No. 2670) informed the jury: “The People have the burden of proving beyond a reasonable doubt that Nick Kim was lawfully performing his duties as a peace officer. . . . [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.” (Ibid.) The instruction further specified the conditional — rather than absolute — nature of an officer’s authority to search a vehicle in which a probationer has been a passenger. “A peace officer may legally detain a probationer who is subject to search and seizure for the purpose of searching areas of a motor vehicle passenger compartment if: [¶] 1. The probationer has been traveling in the motor vehicle; [¶] AND [¶] 2. The police officer reasonably suspects the probationer could have stored his personal belongings [in the vehicle].”
This language required the jury to engage in factfinding to determine whether certain conditions for a lawful detention and search were met, including whether the probationer had been traveling in the vehicle and could have deposited personal belongings there. Additionally, the instructions left to the jury the key issue of Kim’s credibility in describing the events at the gas station, including his interactions with Fluor and Orne, and whether — as Kim claimed — Fluor admitted his probation and search condition status. (CALCRIM Nos. 226 [“You alone . . . must judge the credibility or believability of the witnesses”] & 301 [“The testimony of only one witness can prove any fact. Before you conclude that the testimony of one witness proves a fact, you should carefully review all the evidence”].) The trial court did not command or in any way specify a particular answer or result for the jury to reach on those questions. Consequently, Orne’s claim that the instructions directed the jury’s verdict is without merit.
Orne suggests in a passing one-sentence reference in his brief that the jury would have disregarded as to count 1 any conditional language or factfinding requirement in CALCRIM No. 2670 because the instruction expressly referred only to count 2. Specifically, in stating that the prosecution bore the burden of proving Kim was lawfully performing his duties, the instruction also stated: “If the People have not met this burden, you must find the defendant not guilty of Resisting and Deterring an Executive Officer as charged in count 2.”
“‘“In determining whether error has been committed in giving or not giving jury instructions, we must . . . assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]’” [Citation.] “Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to such interpretation.”’” (Mathson, supra, 210 Cal.App.4th at pp. 1311-1312.) Consequently, we evaluate instructions “‘no[t] . . . under a strict test of whether a “reasonable juror” could have understood the charge as the defendant asserts,’” but rather “‘whether there is a “reasonable likelihood” that the jury misconstrued or misapplied the law . . . .’” (Id. at p. 1312.)
While the trial court’s instruction based on CALCRIM No. 2670 did not explicitly state it also applied to count 1, aggravated assault on a peace officer, the jury having been instructed that the officer’s lawful performance was an element of count 1 naturally would turn to and consider the instruction entitled “Lawful Performance: Peace Officer” (CALCRIM No. 2670). This is particularly true where the court had instructed the jury to consider its instructions as a whole (CALCRIM No. 200). We therefore find no merit in Orne’s claim that the trial court’s instructions directed a verdict against him.
B. The Trial Court’s Instructions Did Not Omit Relevant Factors
Orne also argues that while the CALCRIM No. 2670 instruction referred to conditions for legally detaining a probationer to conduct a search, “[t]he issue here is not the legality of detaining the probationer (Mr. Fluor) but the legality of detaining Mr. Orne,” the driver. But Orne did not dispute below, and does not dispute on appeal, the general principle that an officer’s knowledge a passenger is subject to search and seizure conditions may furnish grounds for the officer to search a third party’s vehicle, as the Supreme Court held in People v. Schmitz (2013) 55 Cal.4th 909 (Schmitz). Schmitz involved a parolee, but People v. Cervantes (2017) 11 Cal.App.5th 860, 867 (Cervantes) recently extended this rule to individuals granted probation with a search and seizure condition. Echoing Schmitz, Cervantes concluded such searches are justified under the vehicle exception to the Fourth Amendment’s warrant requirement because “(1) parolees and probationers both have demonstrated histories of criminal activity and share a motivation to conceal further criminal activity[;] and (2) drivers’ already-diminished expectation of privacy in their vehicles is even further diminished when they transport a passenger, particularly one subject to warrantless and suspicionless parole or probation searches.” (Cervantes, at pp. 866-867.)
Cervantes postdated Orne’s trial, but the trial court below anticipated Schmitz would apply to third party vehicle searches involving a passenger the officer learns is subject to search and seizure as a condition of probation. Neither party below disputed that conclusion, and Orne does not challenge it on appeal. To the contrary, he invokes Schmitz as “set[ting] out the test for the legitimacy of the search of a vehicle in which a probationer [sic: Schmitz involved a parolee] is riding as a passenger.” In relying on Schmitz, but failing to distinguish between probationers and parolees, Orne’s precise complaint on appeal is difficult to decipher, but it appears he believes the trial court’s instructions did not reflect Schmitz’s “‘totality of the circumstances’” test to determine “‘the reasonableness of a warrantless and suspicionless parole search.’” (Quoting Schmitz, supra, 55 Cal.4th at p. 921.) In this vein, Orne appears to suggest there were additional factors in the totality of Kim’s encounter with Orne that the jury should have been instructed to consider in determining whether Kim was acting in the lawful performance of his duties when he decided he was going to search the BMW.
Confusingly, in suggesting the trial court’s instructions should have included additional factors for the jury to consider under a totality of the circumstances to determine the lawfulness of Kim’s actions, Orne implicitly recognizes the court required the jury to evaluate and decide the factual questions specified in CALCRIM No. 2670, contrary to his argument the court directed the jury’s verdict.
But in any event, the court’s instructions did not improperly omit pertinent factors as Orne claims. Orne asserts the fact that Fluor was a “former passenger” and “not in the vehicle when Officer Kim approached” were relevant factors for the jury’s consideration, along with Fluor’s statement that “he was waiting for a ride to take him to his mother’s home,” which Orne emphasizes “gave no indication that he was returning to the vehicle to travel to another location” and, therefore, “Officer Kim had no reason to suspect that he had left any property in the vehicle.” But these are facts, not factors, that Orne was free to and did argue them to the jury. Orne recognizes that the rationale under which Schmitz recognized the validity of third party vehicle searches where a passenger is subject to search conditions is simply, in Orne’s words, that “it was reasonable for the officer to suspect that the parolee might have personal items with him” and that “he may have discarded contraband” in the vehicle. (Citing Schmitz, supra, 55 Cal.4th at pp. 923-925, 926.) But the trial court in CALCRIM No. 2670 fully accounted for these circumstances by instructing the jury that the relevant legal factors or principles were, as noted, whether the probationer “is subject to search and seizure,” “has been traveling in the motor vehicle,” and the officer “reasonably suspects the probationer could have stored his personal belongings” in the vehicle. Consequently, Orne’s claim that the court’s instructions erroneously omitted relevant factors is without merit.
C. The Trial Court Properly Instructed the Jury on Self-Defense
Orne contends the trial court erred in failing to include the self-defense exception usually found in CALCRIM No. 860 concerning assault on a peace officer likely to cause great bodily injury. The exception specifies that the prosecution must prove “[t]he defendant did not act (in self-defense/ [or] in defense of someone else.” (Ibid., original bracket and parentheses.) As Orne points out, the trial court included the self-defense language in its instruction regarding resisting an officer in count 2, presumably based on Orne’s claim he had the right to drive quickly from the gas station because Kim’s conduct was unlawful or threatening.
The trial court did not err in omitting the self-defense language in CALCRIM No. 860 because the court gave a separate instruction on self-defense (CALCRIM No. 3470) expressly specifying that the doctrine applied to counts 1 and 2. Viewing the instructions as a whole, there was no error.
III
DISPOSITION
The judgment is affirmed.



ARONSON, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.