P.v . Thornton
Filed 8/30/07 P.v . Thornton CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, Plaintiff and Respondent, v. BLAKE ANDREW THORNTON, Defendant and Appellant. | E041123 (Super.Ct.No. RIF127493) OPINION |
APPEAL from the Superior Court of Riverside County. Russell F. Schooling, Judge. (Retired judge of the Mun. Ct. for the Southeast Jud. Dist. of L.A., assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed as modified.
Patrick J. Hennessey, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany and Daniel Rogers, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Blake Andrew Thornton appeals his conviction for attempted battery in violation of Penal Code sections 664 and 4501.5, and resisting, delaying or obstructing a law enforcement officer in violation of Penal Code section 69.[1] He contends, among other things, that section 654 barred the sentence imposed on count 1. We agree, and will therefore stay his sentence on that count. We otherwise affirm the conviction.
PROCEDURAL HISTORY
Defendant was charged with one count of attempted battery by an inmate on a non-inmate ( 664/4501.5) and one count of resisting by force or violence or deterring and preventing an executive officer from performing his duty by threats and violence ( 69). The information alleged two prison priors ( 667.5, subd. (b)) and one strike prior ( 667, subds. (c) & (e)(1), 1170.12, subd. (c)(1)). A jury found him guilty on both counts and found the prior conviction allegations true.
The court refused to strike the strike prior. It sentenced defendant to a total term of seven years. Defendant filed a timely notice of appeal.
FACTS
Defendant was confined to the California Rehabilitation Center in Norco. On the morning of August 11, 2005, he was late for breakfast. He asked Officer Valdes, who was on duty that morning, to allow him to enter the dining hall, but Valdes refused. The serving line was already being broken down and the food was being removed. Inmates who arrive too late for a meal are permitted to take a sack lunch instead. Valdes told defendant to get a sack lunch and go back to his dorm. Defendant refused, and demanded to have breakfast. Valdes told him several times to leave the area, get a sack lunch and return to his dorm, but defendant refused. He was adamant in his demand for breakfast. Lieutenant Brownell overheard the conversation and intervened. He also ordered defendant several times to get a sack lunch and return to his dorm, but defendant refused.
Defendant had a cup in his left hand. Valdes could see steam rising from it. As a matter of officer safety, Brownell told defendant to give him the cup and cuff up, meaning to turn around and put his hands behind his back to allow himself to be handcuffed. As Brownell reached for the cup, defendant pulled his left hand back toward his body and swung his right hand at Valdess head or face. Valdes said defendants fist was closed. Brownell was not sure whether it was open or closed. However, he said the swing was aggressive and hard, and that it would have hurt if it had connected with Valdes.
Valdes avoided defendants hand. He used his foot to sweep defendants feet out from under him. Defendant landed on the floor on his back. He rolled over onto his stomach with his hands beneath him. Brownell and Valdes, assisted by Officer Diaz, who had also seen defendant attempt to strike Valdes, and by two other officers who responded to a call for backup, attempted to subdue defendant and to pry his hands from beneath his body to cuff him. They ordered him repeatedly to cuff up or to cease resisting. Defendant continued to struggle, kicking and flailing his legs. Officer Rodin put leg restraints on defendant, to prevent defendant from kicking him in the face. After defendant ignored Valdess warning that he would use pepper spray, Valdes sprayed defendant in the face. After a second spray, defendant capitulated and allowed himself to be handcuffed.
Defendant denied having swung at Valdes. He said he was about to hand the cup of coffee (which he said was cold) to Brownell when Brownell suddenly reached toward him, startling him. He put his hands up toward his face defensively. When he was on the floor, he could not get his hands out from under his body because of the weight of the officers who had their weight on his arms and shoulders. He denied attempting to kick anyone.
LEGAL DISCUSSION
SUBSTANTIAL EVIDENCE SUPPORTS THE CONVICTION FOR RESISTING OR ATTEMPTING TO DETER AN EXECUTIVE OFFICER
Defendant contends that the evidence is insufficient to support his conviction for resisting or attempting to deter an executive officer. He contends that there is no evidence that he attempted by means of violence or threat of violence to prevent any officer from performing his duties. He contends that because his act of swinging at Officer Valdes was the basis for the attempted battery charge in count 1, count 2 was necessarily based on his conduct after he was taken to the ground. He admits that his conduct made it difficult for the officers to get his arms behind him to cuff him. However, he contends that this constitutes at most a violation of section 148, misdemeanor resisting arrest.[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. The statute thus makes it a crime to attempt to deter or prevent an officer from performing a duty either by threats or by violence. It also makes it a crime to resist an officer in the performance of his duty by the use of force or violence. (People v. Hines (1997) 15 Cal.4th 997, 1061-1062 & fn. 16.)
There is no question that defendants conduct, as described by the officers, fell within the definition of the crime. As the Attorney General notes, it took four officers and pepper spray to subdue defendant. He was struggling to prevent the officers from wrestling his arms out from under him, in Lieutenant Brownells words, and kicking and flailing his legs to avoid being handcuffed. An officer had to apply leg restraints in order to avoid being kicked. Viewed in the light most favorable to the verdict, this evidence is unquestionably sufficient to permit a rational trier of fact to conclude that defendant used force or violence to resist or to attempt to deter the officers attempts to handcuff him. (People v. Johnson (1980) 26 Cal.3d 557, 578.) That his conduct might also constitute the lesser related offense of willfully resisting, delaying, or obstructing any public officer or peace officer within the meaning of section 148 is irrelevant. The jury was presented with that option and rejected it.
OMISSION OF AN INSTRUCTION ON THE MEANING OF ATTEMPT IN CONNECTION WITH THE CHARGE OF DETERRING OR RESISTING AN OFFICER WAS HARMLESS
The jury was instructed, in the language of section 69, that the prosecution was required to prove that defendant willfully and unlawfully attempted by means of violence or a threat of violence to try to prevent or deter an executive officer from performing the officers lawful duty. Defendant contends that his conviction on count 2 must be reversed because the court failed to define the word attempt in connection with the charged violation of section 69.
Defendant neither states the standard of review which applies to such an omission nor makes any attempt to explain why the error was prejudicial. An appellant bears the burden of demonstrating both error and prejudice. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 105-106.) In the absence of any attempt by defendant to do either, we may deem the issue forfeited: An appellate court is not required to examine undeveloped claims, nor to make arguments for parties. (Id. at p. 106.) In any event, there was no error. The rules governing a trial courts obligation to give jury instructions without request by either party are well established. Even in the absence of a request, a trial court must instruct on general principles of law that are . . . necessary to the jurys understanding of the case. [Citations.] That obligation comes into play when a statutory term does not have a plain, unambiguous meaning, has a particular and restricted meaning [citation], or has a technical meaning peculiar to the law or an area of law [citation]. [Citation.] A word or phrase having a technical, legal meaning requiring clarification by the court is one that has a definition that differs from its nonlegal meaning. [Citations.] (People v. Hudson (2006) 38 Cal.4th 1002, 1012.) Attempt is defined in the American Heritage Dictionary as follows: To try to perform, make, or achieve: attempted to read the novel in one sitting; attempted a difficult dive. (American Heritage Dict. (4th ed. 2000)
THE FAILURE TO GIVE A UNANIMITY INSTRUCTION WAS HARMLESS BEYOND A REASONABLE DOUBT
Next, defendant contends that the court had a duty to give a unanimity instruction sua sponte and that the omission was not harmless beyond a reasonable doubt. We agree that the instruction should have been given, in light of the prosecutors argument to the jury, but find the omission harmless.
A criminal defendant is entitled to a verdict in which all 12 jurors concur, as a matter of due process under the state and federal constitutions. (People v. Russo (2001) 25 Cal.4th 1124, 1132.) In any case in which the evidence would permit jurors to find the defendant guilty of a crime based on two or more discrete acts, either the prosecutor must elect among the alternatives or the court must require the jury to agree on the same criminal act. (Id. at pp. 1132-1133.) Where it is warranted, the court must give the instruction sua sponte. (People v. Riel (2000) 22 Cal.4th 1153, 1199.) The omission of a unanimity instruction is reversible error if, without it, some jurors may have believed the defendant guilty based on one act, while others may have believed him guilty based on another. (People v. Russo, supra, at p. 1133.)
Here, the prosecutor argued to the jury that it could find defendant guilty of violating section 69 based either upon his act of attempting to strike Officer Valdes or upon his forcible attempts to prevent the officers from handcuffing him after he had been knocked to the floor. Either act could form the actus reus of a violation of section 69. The Attorney General contends, however, that the acts of swinging at Valdes and struggling to avoid being handcuffed were so closely connected in time that they formed a single, continuous transaction. Under those circumstances, he contends, no unanimity instruction was required. He cites People v. Diedrich (1982) 31 Cal.3d 263, 282, and People v. Lopez (2005) 129 Cal.App.4th 1508, 1534-1535.
The Attorney General is correct that the events could be viewed as a continuous transaction, and thus be subject to the rule he cites. However, the attempted battery on Valdes and the subsequent struggle can also be viewed as discrete events, punctuated by Valdess act of sweeping defendants feet out from under him, thus giving rise to the melee which followed. Because the events were separable in that manner and because the prosecutor specifically argued that each act was a separate and distinct basis for a guilty verdict, defendant was entitled to a unanimity instruction.
The question is whether the courts failure to give the instruction requires reversal. Failure to give a unanimity instruction where it is warranted has the effect of lowering the prosecutions burden of proof, in that the prosecution may obtain a conviction without having convinced all 12 jurors beyond a reasonable doubt that the defendant committed a particular criminal act. Therefore, such an error is reviewed under the standard of Chapman v. California (1967) 386 U.S. 18. (People v. Smith (2005) 132 Cal.App.4th 1537, 1545-1546; People v. Wolfe (2003) 114 Cal.App.4th 177, 186-188.) Under that standard, we must examine the evidence and inquire whether it is possible to determine, beyond a reasonable doubt, that the jury unanimously relied on the same specific acts in finding defendant guilty on count 2. (People v. Smith, supra, at pp. 1546-1547; People v. Wolfe, supra, at p. 188.)
Cases generally hold the omission of a unanimity instruction harmless if the record reveals no rational basis, by way of argument or evidence, by which the jury could have distinguished between [the acts which could constitute the offense]. (People v. Deletto (1983) 147 Cal.App.3d 458, 473.) In contrast, if there is a rational basis on which jurors could distinguish between alternative factual bases, omission of a unanimity instruction is normally reversible error. For example, in People v. Diedrich, supra, 31 Cal.3d 263, the defendant was charged with one count of bribery. The evidence showed two instances of bribery, and the defendant had different defenses as to each. For that reason, and because the court did not find the evidence of either instance of bribery overwhelming, the Supreme Court felt compelled to reverse the conviction because the trial court had failed to give a unanimity instruction. (Id. at pp. 282-283; see also People v. Thompson (1995) 36 Cal.App.4th 843, 853.) In some instances, however, even if there is a rational basis upon which jurors could distinguish the alternative factual bases, the court can determine for some other reason that the error was harmless beyond a reasonable doubt. In People v. Wolfe, supra, 114 Cal.App.4th 177, for example, this court found the omission of a unanimity instruction harmless even though there was a rational basis on which jurors could have distinguished between two alternate factual bases for the charged offense. The defendant was charged with one count of illegal possession of firearms. There was evidence that he may have possessed some firearms on May 9, and that he may have possessed other firearms on May 11. Omission of a unanimity instruction was deemed harmless, however, because even though jurors could have had a reasonable doubt as to whether the defendant possessed the guns found on May 9, none could reasonably have disbelieved the defendants admission that he possessed at least some of the guns found on May 11. (Id. at pp. 187-188.) Similarly, although jurors could have differed as to whether the attempted battery on Officer Valdes constituted the violation of section 69, no juror could reasonably conclude that defendants forcible efforts to resist being subdued and handcuffed after he was knocked to the floor did not amount to resisting an officer by force or violence. Thus, the omission of the instruction was harmless.
SECTION 654 PRECLUDES AN UNSTAYED SENTENCE ON COUNT 1
Defendant also contends that section 654 precluded imposition of sentence on count 1 because the attempted battery on Officer Valdes was part of an indivisible course of conduct.
Section 654 reads: An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . . Although section 654 speaks in terms of an act or omission, it has been judicially interpreted to include situations in which several offenses are committed during a course of conduct deemed indivisible in time. [Citation.] The key inquiry is whether the objective and intent attending more than one crime committed during a continuous course of conduct was the same. [Citation.] [I]f all of the offenses were merely incident to, or were the means of accomplishing or facilitating one objective, defendant may be found to have harbored a single intent and therefore may be punished only once. [Citation.] [] If, on the other hand, defendant harbored multiple criminal objectives, which were independent of and not merely incidental to each other, he may be punished for each statutory violation committed in pursuit of each objective, even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] (People v. Meeks (2004) 123 Cal.App.4th 695, 703-704.)
A defendants intent and objective are factual matters for the trial court to determine. (People v. Osband (1996) 13 Cal.4th 622, 730-731.) We must affirm the sentence if substantial evidence supports a trial courts determination that a defendant entertained multiple objectives in the commission of crimes occurring during a single course of conduct. (Ibid.) Here, there was no discussion of section 654 during the sentencing hearing, and the trial court did not allude to it in pronouncing sentence. However, in the absence of any reference to section 654 during sentencing, the fact that the court did not stay the sentence on any count is generally deemed to reflect an implicit determination that each crime had a separate objective.[3] (See, e.g., People v. Blake (1998) 68 Cal.App.4th 509, 512; People v. Osband, supra, at pp. 730-731.)
The Attorney General contends that section 654 does not apply because the acts were separable and had different objectives. He contends that defendant attempted to hit Officer Valdes during the argument over breakfast and that his conduct after he was knocked to the floor was in furtherance of the separate objective of avoiding being subdued and handcuffed. However, the evidence does not support this interpretation. Defendant had been arguing with Officer Valdes about getting his breakfast, but it was only when Lieutenant Brownell intervened and ordered defendant to cuff up and reached for his coffee cup that defendant swung his fist at Officer Valdez. Defendant was immediately knocked to floor, where he continued to defy orders to cuff up until he was subdued with pepper spray. Thus, there was no evidence that the attempted battery was the result of anger or frustration that Officer Valdes would not allow him to get breakfast, as the Attorney General suggests. Rather, the evidence shows that both acts were part of a continuous attempt by defendant to resist lawful orders to cuff up.
Nor can the separate sentence on count 1 survive on the theory that there were multiple victims of a single violent act or course of conduct. Crimes of violence against multiple victims are separately punishable regardless of section 654s restrictions. (People v. Latimer (1993) 5 Cal.4th 1203, 1212.) Even though defendant engaged in a melee involving multiple officers, however, the information alleged only that he attempted to interfere with or resist Officer Valdes. Thus, although defendant could be convicted of both attempted battery on Officer Valdes and resisting or interfering with Officer Valdes, he cannot be punished for both offenses.[4]
DEFENDANT HAS SHOWN NO ABUSE OF DISCRETION IN THE DENIAL OF HIS ROMERO MOTION
Defendant made a motion to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court denied the motion, finding that the ends of justice would not be served by striking the prior conviction.
A trial court has the discretion to strike a strike prior if the defendant may be deemed outside the spirit of the Three Strikes sentencing scheme, either in whole or in part. (People v. Williams (1998) 17 Cal.4th 148, 161.) The court must consider the nature and circumstances of the current offense and the prior strike conviction, as well as the particulars of the defendants background, character and prospects. (Ibid.) Only extraordinary circumstances will justify striking a strike prior. (People v. Carmony (2004) 33 Cal.4th 367, 378.) The Three Strikes law presumes that a repeat offender with a serious or violent prior offense should be subject to greater punishment. Therefore, when the record shows that the trial court considered the relevant facts and reached an impartial decision in conformity with the spirit of the law, a reviewing court will affirm the trial courts denial of the motion unless no reasonable person could disagree that the defendant falls outside the spirit of the sentencing scheme. (Ibid.)
A defendant who seeks to have a discretionary sentencing decision set aside has the burden of showing that the trial court abused its discretion. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its exercise of discretion will not be set aside. (People v. Superior Court (Alvarez) (1997)14 Cal.4th 968, 977-978.) Defendant contends that because he acknowledged that his current crime was stupid and because his prior strike conviction was for a relatively minor felony and he had successfully completed his parole following his release from prison, striking his prior conviction was warranted. He does not, however, explain why it was an abuse of discretion to refuse to do so. We see no factors which cause defendant to fall outside the Three Strikes scheme.
DISPOSITION
The sentence on count 1 is stayed pursuant to section 654. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a copy of this amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ MCKINSTER
J.
We concur:
/s/ RAMIREZ
P.J.
/s/ RICHLI
J.
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[1]All statutory citations refer to the Penal Code unless another code is specified.
[2]Section 148 provides, in pertinent part, Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, as defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. ( 148, subd. (a)(1).)
[3]A violation of section 654 is reviewable on appeal in the absence of any objection in the trial court. (People v. Hester (2000) 22 Cal.4th 290, 295.)
[4]In People v. Martin (2005) 133 Cal.App.4th 776, the defendant engaged in a melee with several officers and injured one. The court held that he was subject to punishment for both battery on a police officer and for resisting an officer, in that there were multiple victims. (Id. at pp. 781-783.) Martin does not discuss whether the charging document named one or more victims of the violation of section 69, or whether it named any victims at all. In the absence of a specified victim, all of the officers who participated in the melee were factually victims of the charged offense. Here, in contrast, the information specifically named Officer Valdes alone as the victim. Because defendant was not charged with resisting the other officers, he cannot be punished for having done so.
