P. v. Briones

Filed 10/19/06 P. v. Briones CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 CALIFORNIA

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge.

Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, and John G. McLean, Deputy Attorney General, for Plaintiff and Respondent.

-ooOoo-

INTRODUCTION

Appellant Rojelio Briones was charged with eight felony counts based on incidents where he allegedly harassed his former girlfriend, destroyed property in her garage, and resisted arrest. He was found guilty of felony resisting an officer by the use of force or violence, and misdemeanor vandalism. The court found he suffered three prior strike convictions, denied his motion to reduce his felony conviction to a misdemeanor, denied his request to dismiss the prior strike conviction, and imposed the third strike term of 25 years to life.

On appeal, he contends there is insufficient evidence he used force or violence to resist the officers. He also contends the court abused its discretion when it denied his motions to reduce his conviction to a misdemeanor and dismiss the strikes. His primary issue, however, concerns the means by which the court found his prior felony convictions were serious felonies and strikes. The court reviewed the prior convictions and admissions in a 1991 case, found those offenses were serious felonies because he admitted enhancements for personal use of a stun gun as a deadly or dangerous weapon, and declined to review the preliminary hearing transcript to determine if the ordinary use of a stun gun fell within the definition of a deadly or dangerous weapon.

We will find substantial evidence to support appellant’s felony conviction, and that the court did not abuse its sentencing discretion when it imposed the third strike term. We will also find the trial court correctly found appellant’s 1991 prior convictions were serious felonies within the meaning of the three strikes law, based on the nature of his guilty pleas and admissions in that case.

STATEMENT OF THE CASE

On May 20, 2004, an information was filed in the Superior Court of Kern County charging appellant with counts I and II, assault with a deadly weapon on a police officer (Pen. Code,^[1] § 245, subd. (c)); counts III and IV, battery on a police officer (§ 243, subd. (c)(2)); count V, resisting an officer by the use of force or violence (§ 69); count VI, exhibiting a deadly weapon to resist arrest (§ 417.8); count VII, unlawful harassment (§ 646.9); and count VIII, destruction of personal property worth $400 or more (§ 594, subd. (b)(1)). The information also alleged special allegations for serious felony enhancements (§ 667, subd. (a)), personal use of a deadly or dangerous weapon (§ 12022, subd. (b)(1)); and prior strike convictions (§§ 667, subds. (a)-(i), 1170.12). Appellant pleaded not guilty and denied the special allegations.

On September 3, 2004, the court suspended criminal proceedings pursuant to section 1368. On September 7, 2004, the court found appellant was not competent to stand trial. On March 21, 2005, the court found appellant competent and reinstated criminal proceedings.

On June 6, 2005, appellant’s jury trial began and the court bifurcated the special allegations. On June 10, 2005, the jury found appellant guilty of count V, felony resisting an officer with force or violence, and guilty of misdemeanor vandalism (§ 594, subd. (a)) as a lesser offense of count VIII. The jury found appellant not guilty of counts I, II, III, IV, VI, and VII.

On June 13, 2005, the prosecutor filed points and authorities in support of the special allegations. Also on June 13, 2005, the court conducted the bifurcated hearing on the special allegations, requested additional briefing, and continued the matter. On June 21, 2005, appellant filed points and authorities. On June 24, 2005, the prosecution filed opposition to appellant’s motion. On July 6, 2005, the court found appellant suffered three prior strike convictions as to count V.

On August 11, 2005, the court denied appellant’s motions to reduce count V to a misdemeanor and to dismiss his prior strike convictions. The court denied probation and imposed the third strike term of 25 years to life for count V, with a concurrent term of 180 days in jail for count VIII.

Also on August 11, 2005, appellant filed a timely notice of appeal. FACTS

As of November 2003, appellant had been living with Phyllis Sepeda (Sepeda) and her children for nearly 11 years. They were not married. Their relationship had been pretty good, but Sepeda grew frustrated because appellant never worked and only occasionally held odd jobs, and she financially supported him for the entirety of their relationship. For a time, appellant and Sepeda served as managers of their apartment building and received free rent. They were also caring for appellant’s elderly mother, and appellant’s family paid those expenses. Sepeda worked at In-N-Out Burger and was paid $10 per hour. Sepeda asked appellant to get a job to help cover their expenses but appellant never did.

Sepeda testified that while they lived together, appellant never hit or beat her, but he would say things that hurt her feelings. Appellant “would always get mad and he hated my kids, my two oldest ones. He hated them with a passion.” Sepeda conceded appellant had seen her older children physically attack her when she tried to evict her daughter from one of the apartments they managed.

Sepeda testified about an incident when appellant returned home with a bloody hand, and said he confronted and beat up his brother. Sepeda was frightened when she heard this story. Sepeda testified that when they had been together for one year, she was looking through some paperwork and discovered a police report about an incident in 1990, involving appellant and his former girlfriend. Sepeda asked appellant about the incident, and he said “he hurt the guy really bad, he broke his arm and beat him up, and that he kidnapped his ex[girlfriend].” Appellant said it was something that never should have happened, and he paid the price for it.^[2]

As their relationship came to an end, Sepeda recalled the earlier incident between appellant and his former girlfriend, because appellant repeatedly said “you’re not leaving me, you’re not going anywhere, you’re not going to go nowhere, I’m not going to let you, and that scared me, just the tone of voice of how he would say it to me.”

Appellant eventually moved out and Sepeda began to divide their belongings and pack up the house. Sepeda and her children moved in with her mother. Appellant occasionally contacted Sepeda or her mother to discuss the property division. Appellant also tried to convince Sepeda to get back together. On one occasion, Sepeda’s sister and her family went to the old house to pack up some more belongings. Appellant showed up and told them to leave. They called Sepeda, who immediately drove over in her van. Sepeda told appellant they needed to talk. Appellant was drinking beer, and walked up to the van and kicked the door. He also threw his beer bottle at the van. Sepeda and her family were frightened, and she said there was no way she was going back to him.

In February 2004, Sepeda and her children moved into a house on Weatherly Drive in Bakersfield. Appellant arrived at the house and wanted to talk with her. Sepeda told him to leave but he refused. Sepeda said she was going to call the police and get a restraining order. Appellant grabbed his wallet and threw money at her, and asked “is this what you want? Is this what you want?” Sepeda said no, she just wanted to make their relationship better and be happy. Appellant refused to leave, so Sepeda gathered her children into the van to leave. Appellant climbed into the van and refused to get out. Sepeda drove to the workplace of appellant’s sister, and told her daughter to go inside and get appellant’s sister. Appellant’s sister emerged from the building and told appellant to get out of the van. Appellant refused. His sister said he was scaring everyone, and she was going to call the police. Sepeda testified everyone was crying, and appellant finally got out of the van. Sepeda and her family spent the night at a friend’s house because she wanted to hide from appellant.

As a result of this incident, Sepeda obtained a temporary restraining order against appellant on February 18, 2004. She obtained a separate restraining order for her daughter, who was attending college in Bakersfield, based on an incident where appellant seemed to follow her around the campus.

Sepeda testified things became worse with appellant after the restraining orders were issued. On or about March 26, 2004, Sepeda heard noise outside her house on a rainy night. She looked out the window and saw appellant run from her house to his pickup truck. She discovered the windows on her car were shattered, the tires were slashed, the hood was caved in, and the words “‘godly’” and “‘dick’” were carved into the hood. Sepeda conceded that eight other cars were also damaged in the neighborhood that night, and a neighbor’s car was defaced with a Nazi emblem. Sepeda admitted that when she spoke to the police that night, she described the suspect by his physical appearance and did not say that she saw appellant. At trial, however, she insisted she saw appellant that night. “In my heart I felt it was him and I knew it.”

Sepeda testified about another incident, which occurred around 3:00 a.m. on April 19, 2004, when she heard scratching outside her bedroom window. The automatic sensor light activated in the backyard and she heard another noise. She decided to call 911 but the telephone did not work. She used her cell phone and called the police. The house’s telephone line had been cut but the police did not find anyone in the area.

Appellant’s Arrest

The instant prosecution occurred as a result of an incident at Sepeda’s house around 1:00 a.m. on April 24, 2004. Bakersfield Police Officers Garcia, Ward, Wells, and Hatcher responded to Sepeda’s house on a dispatch about a burglary in progress. A neighbor reported that “a crazy person causing havoc and destruction” at the house. Based on the nature of the call, the officers followed standard department policy and parked their patrol cars some distance away, and walked toward the house. Officer Ward was accompanied by his canine partner, a German Shepard named Hunter. The four officers were in full uniform, and approached the house from different positions. Sepeda and her family were in the house, but they did not know the police were there or that anything was going on.

Officers Ward and Hatcher entered the backyard and heard crashing sounds in the garage. Hatcher aimed his flashlight through the garage window and saw a subject moving around and holding a big piece of wood or baseball bat in his hand. The subject was swinging the device to destroy furniture in the garage. Hatcher identified themselves as police officers and shouted at the subject to stop. The subject turned and headed toward the garage door.

At the same time, Officer Garcia approached the front of the garage and also heard crashing sounds. Garcia jumped over a small chain link fence to get closer to the garage, and appellant ran out of the garage door. Officer Garcia testified that appellant looked directly at him, and then took a step toward him. Appellant appeared to be holding a large baseball bat, but Officer Garcia later determined he held a large wooden bedpost taken from a bedroom set stored in Sepeda’s garage. Appellant held the wooden post high above his shoulder, similar to a baseball stance. Officer Garcia pulled his service revolver and shouted to the other officers that appellant had a weapon.

Appellant turned and ran away, but he immediately collided with Officers Hatcher and Ward. Ward thought appellant was holding “an extra large” baseball bat. Appellant raised the weapon in his right hand, as if it was a hatchet and he was going to make a chopping motion. Ward thought appellant was going to attack them with it. The officers tackled appellant and attempted to take him into custody. Appellant was still swinging his weapon.

Officer Ward repeatedly yelled at appellant to stop resisting and get on the ground, but appellant struggled and broke free, and ran toward the street. Officer Hatcher believed appellant dropped the wooden post. Officer Garcia returned his service revolver into his holster and drew his 29-inch wooden baton. Garcia struck appellant once in the knee with the baton and tried to take him into custody. Appellant kept running and headed toward the backyard fence.

Officer Ward was dazed from the struggle, but he deployed his canine partner, Hunter, and shouted “canine” to alert the other officers. Hunter made contact with appellant, bit his buttocks, and brought him down. Appellant was on the ground and tried to push himself up, but Hunter was on top of his buttocks. The officers repeatedly shouted they were the police and ordered appellant to place his hands behind his back, but he refused to comply. Ward knelt on top of appellant’s right side and tried to gain control of his right hand. Appellant grabbed Ward’s knees and legs, and actually touched his gun holster. Ward believed appellant was trying to get his gun, and hit appellant twice on the right side of his face with a closed fist.

Appellant finally stopped struggling and Ward ordered Hunter to release his hold on appellant. As Officer Ward stepped back with the dog, appellant jumped up and ran toward the fence next to the garage. The officers chased appellant and continued to order him to stop and get on the ground. As appellant approached the fence, Officer Garcia administered pepper spray into his face. The spray usually incapacitates most people, but appellant did not stop and continued toward the fence. Officer Garcia grabbed appellant’s head, arm, and upper body, but appellant held onto the top rail of the chain-link fence and refused to let go. Officer Garcia told appellant to stop resisting, but he continued to struggle. Garcia testified the officers hit appellant hard, to make him stop, but appellant continued to resist. Garcia put appellant’s head and arm in a headlock, and then used “a distraction technique” and “kneed him in the sciatic nerve in the side of his right leg.”

Appellant finally let go of the fence and Officer Garcia threw him to the ground. The four officers attempted to place appellant in handcuffs, but appellant continued to punch, kick, and pull away from them. Appellant was on the ground, and swung his fists at the officers and tried to kick them, but could not get away. Hatcher believed appellant hit him once or twice in the chest. Officer Ward again deployed his canine partner, and the dog grabbed appellant and bit him. The officers finally restrained appellant and placed him in handcuffs.

Officer Garcia testified the entire encounter with appellant lasted eight or nine minutes. Garcia testified the officers repeatedly shouted at appellant to stop resisting, both before and after the first instance when Officer Ward deployed his canine partner. Appellant ignored their commands and continued to resist. Appellant never took a full baseball-like swing at any of the officers. Officer Garcia believed appellant dropped the wooden bedpost outside the garage, when he struggled with Ward and Hatcher.^[3]

Appellant was taken to the hospital to treat cuts and bruises suffered during the struggle. Officers Ward and Hatcher suffered minor injuries.

Sepeda testified she was in the house with her family, having just celebrated her brother’s marriage, and she did not know that appellant and the police were on the property until he was arrested. Sepeda had stored a bedroom set, a table set, a glass hutch, and several boxes of dishes in her garage, and discovered the furniture had been broken, the glass shattered, and the dishes smashed on the ground. A bedpost was missing from the furniture set.

Officer Garcia also inspected the garage, and found broken glass and damaged furniture. He believed appellant used the wooden bedpost to destroy the items. Garcia interviewed Sepeda and obtained the details of her previous incidents with appellant. Sepeda believed the property damage for the destroyed furniture in the garage was about $600.

Defense Evidence

At trial, appellant attempted to impeach the testimony of the arresting officers by calling witnesses who previously filed complaints against Officer Hatcher, alleging he used excessive force when they were arrested in unrelated cases.

Appellant testified that he went to Sepeda’s house in the early morning hours of April 24, 2004, because he was sad and upset about their separation. Appellant admitted that he was living in Wasco at that time, and a friend dropped him off. Appellant claimed he had been thinking about Sepeda and just happened to walk by her house. He went into the garage because he wanted to know what happened to their furniture. As he looked around, he grabbed the bedpost and “just started hitting some of the stuff, just being upset. I was hurt.” Appellant’s mind “wasn’t really on anything” but “it just happened” and he knew that he hit the china cabinet. Appellant felt the furniture “was part of my stuff.”

Appellant testified he saw a light and heard someone say something about putting down a weapon. Appellant looked toward the window, ducked down, and ran out the door. He heard someone yell “weapon” and looked to his right.

“Well, as soon as I come out [of the garage] I wasn’t--all I heard was somebody yell out ‘weapon,’ and I looked like over to my right and I seen the officer, an officer standing there. I barely caught a glimpse. But I was doing things so fast that I was running, trying to run.”

Appellant testified he held onto the bedpost because “I didn’t want to leave it behind, because thinking to myself I’m leaving evidence. I’m not going to lie.” Appellant did not want to drop the bedpost because his fingerprints were on it, and “just then they would have said oh, we know who done it, who broke the glass.”

On further examination, however, appellant claimed that when he walked out of the garage, he only heard someone yell “weapon” and never heard anyone call out “police.”

“I heard that--I heard it real fast when I--like I said, everything was happening real fast when I came out the door and I looked over and I kind of seen some--an officer--somebody standing over here and they said ‘weapon’ and I took off running.”

Appellant admitted he “caught a glimpse” of an officer, but claimed he did not know the men were officers until he was placed in handcuffs.

Appellant insisted he never swung the bedpost at anyone. Appellant felt something hit his back and suddenly realized he was down on the ground. He felt people repeatedly beat on his back. Appellant pushed himself up and took off toward the street because he wanted someone to see what was happening to him. “These guys, whoever they are, they’re just beating me.” Appellant again fell down and realized a dog bit him. Someone removed the dog from his backside, and he got up and again ran away because he wanted to get to a safe place “where people can see me.” Appellant testified some people continued to beat him and he fell down at the fence. Someone hit his face and placed him in handcuffs. Officer Garcia sprayed him with mace after he was handcuffed. Appellant testified Officer Garcia said, “I shouldn’t have wasted my time. I should have F’ing killed you.”

Appellant testified he initially thought the men were members of Sepeda’s family.

“I can’t really direct it if it was an officer. Like I said, I didn’t know if it was maybe her family members. But if it was an officer, all I know that I was tackled and gone down.”

Appellant claimed the men never said they were the police, and never ordered him to the ground or to stop resisting. Appellant was asked why he kept resisting after the dog caught him the first time, and contradicted his earlier claim that he did not know the men were officers:

“... I was trying to get out to in front, where people could see how bad these people were beating on me. I mean, it shows this on television all the time, how P.D.’s always--they’re pulling people out of bars and beating them and stuff, and I was being beaten and that’s why I had--after the dog was disengaged, that’s how they said it--well, after he bit--they took him off me, when I moved forward and I was tackled in the front and on the dirt, like I said, I was trying to get out in front of the lights, somewhere where I could be out in the open, so people could see me to see what was going on.“ (Italics added.)

Appellant denied that he later told Officer Ward that he resisted because he was mad the people in the house were watching him being arrested.

Appellant insisted that at the time of the incident, he was still in a relationship with Sepeda:

“[Our relationship] never broke up. All we did was just separate. Like I said, she explained to me that she was going through menopause. We had gotten our eviction--well, not an eviction. They just told us that they did not need our services anymore as [apartment] managers so we had to move and go somewhere else, and our rent was going to come up .... We were just having our misunderstandings and--but nothing to leave each other.”

Appellant insisted that Sepeda moved in with her mother, and he stayed with a friend, just until they were able to get a house together.

Appellant also testified about the prior incidents described by Sepeda. Appellant testified he fought with his brother because he was selling crank at their parent’s house, the brother insulted Sepeda and her family, and the brother assaulted him. Appellant denied damaging Sepeda’s car or the other cars in her neighborhood, cutting the telephone lines at her house, or following Sepeda’s daughter around the college campus. Appellant testified Sepeda’s two older children were involved with drugs.

Appellant admitted he threw a beer bottle at Sepeda’s van when she moved out of their house. Appellant also admitted that he went to Sepeda’s house on one occasion, spoke to her outside, pulled out his wallet, and asked if she wanted money; that he joined them in the car when the family left the house, he went to a restaurant with them, and no one objected to his presence. Appellant testified he heard Sepeda say something about a restraining order, and admitted he had been served with the order to stay away from Sepeda. Appellant further admitted he suffered two prior felony convictions for moral turpitude offenses in March 1991.

Officer Garcia testified as a rebuttal witness, that he administered the pepper spray at appellant’s face in the middle of the struggle, much earlier than when appellant was finally placed in handcuffs. Garcia denied that anyone told appellant that they should have shot him. Also on rebuttal, Officer Ward testified that he spoke to appellant at the hospital, and asked why he continued to fight after the dog bit him. Appellant said he was mad at the occupants of the residence because they were clapping and cheering as he was arrested, and he was just trying to get away.

The Convictions and Special Allegations

Appellant was charged with counts I and II, assault with a deadly weapon on a police officer as to, respectively, Officers Ward and Hatcher; counts III and IV, battery on a police officer as to, respectively, Officers Hatcher and Ward; count V, resisting an officer with the use of force or violence as to Officers Ward, Hatcher, and Garcia; count VI, exhibiting a deadly weapon to resist arrest, as to Officer Garcia; count VII, unlawfully following or harassing Sepeda and making a credible threat as to her safety while there was a restraining order; and count VIII, felony destruction of Sepeda’s personal property, worth $400 or more. The information also alleged special allegations pursuant to the three strikes law.

Appellant was found guilty of count V, felony resisting an officer by the use of force or violence (§ 69), and misdemeanor vandalism as a lesser offense of count VIII; the jury found him not guilty on all other counts. The court found he suffered three prior strike convictions, and imposed the third strike term of 25 years to life for count V.

On appeal, appellant asserts there is insufficient evidence to support his conviction for felony resisting arrest; there is insufficient evidence that two of the prior convictions were strikes; and the court abused its discretion when it denied his motion to reduce count V to a misdemeanor, and denied his request to dismiss the prior strike convictions.

DISCUSSION

I.

SUBSTANTIAL EVIDENCE OF RESISTING AN OFFICER

Appellant contends there is insufficient evidence to support his conviction for violating section 69, felony resisting an officer by force or violence, and asserts he did not use force against the officers “until after they began using excessive force on him to arrest him for a non-violent property offense. Because suspects are permitted to use reasonable force to resist the use of excessive force by police, appellant should not have been convicted of resisting arrest.”

A. Section 69

In determining the sufficiency of the evidence, we review the entire record to determine whether the evidence was reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Catlin (2001) 26 Cal.4th 81, 139; People v. Bolin (1998) 18 Cal.4th 297, 331 (Bolin).) The trier of fact may reasonably rely on the testimony of a single witness, unless the testimony is physically impossible or patently false. (Evid. Code, § 411; People v. Cudjo (1993) 6 Cal.4th 585, 608-609.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995) 37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘”upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (Bolin, supra, 18 Cal.4th at p. 331.)

In count V, appellant was convicted of resisting an officer in violation of section 69, which states:

“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.”

Section 69 is a “wobbler” offense which may be treated as either a misdemeanor or a felony at the time of sentencing. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)

“[A]ny violation of section 69 involves (1) threats, violence, or force, directed toward (2) an executive officer.” (People v. Williams (1999) 72 Cal.App.4th 1460, 1464.) “‘[T]he term “executive officer” has long been held to include police officers.’ [Citations.]” (Id. at p. 1463, fn. 5.) “The statutory language specifically provides that the offense is one involving resisting an officer by ‘force or violence.’ It is designed to protect police officers against violent interference with performance of their duties. [Citation.]” (People v. Martin (2005) 133 Cal.App.4th 776, 782; In re Manuel G. (1997) 16 Cal.4th 805, 819 (Manuel G.).)

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.]” (Manuel G., supra, 16 Cal.4th at p. 814, italics added.) “Section 69 prohibits two distinct types of activity--threats and violent conduct--when either activity constitutes an attempt ‘to deter or prevent an executive officer from performing any duty imposed upon such officer by law.’ Plainly, the statute does not require that a defendant engage in both threats and violent conduct.” (People v. Hines (1997) 15 Cal.4th 997, 1061-1062 (Hines), italics in original, fn. omitted.)

“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. [Citation.]” (Manuel G., supra, 16 Cal.4th at pp. 814-815.) “[A] present ability to carry out threats is not required if ... the target of the threat could reasonably fear retaliatory action on some future occasion.” (Hines, supra, 15 Cal.4th at p. 1060.)

“Another portion of section 69 also makes it a crime to ‘knowingly resist[], by the use of force or violence, [an] officer in the performance of his duty ....’” (Hines, supra, 15 Cal.4th at p. 1062, fn. 16; In re M. L. B. (1980) 110 Cal.App.3d 501, 504.) The second type of offense under section 69 thus involves the knowing resistance of an officer’s performance of his or her duty by force or violence. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1532-1533; People v. Belmares (2003) 106 Cal.App.4th 19, 24-26, rejected on other grounds in People v. Reed (2006) 38 Cal.4th 1224, 1228.)

B. The Instructions and Argument

Before we reach appellant’s substantial evidence argument, we must clarify an issue disputed by the parties. Appellant states the prosecution proceeded in this case under the second aspect of section 69, resisting an officer with force or violence. Respondent declares the jury herein received an instruction prohibiting both aspects of section 69, the jury could have found appellant’s use of the wooden post violated the first aspect of section 69 because it “constituted a nonverbal threat which he used to deter or prevent the officers from performing their duty,” and there is substantial evidence to support his conviction under the first aspect of section 69. In the alternative, respondent argues there is overwhelming evidence that he used force or violence to support his conviction under the second aspect of section 69. Appellant replies that the record establishes the jury was only instructed under the second aspect of section 69.

We must turn to the record whether the jury was instructed under the first and/or second prongs of section 69. In count V, the information alleged both aspects of section 69, in that appellant “DID WILLFULLY AND UNLAWFULLY ATTEMPT BY MEANS OF THREATS OR VIOLENCE TO DETER OR PREVENT” Officers Ward, Hatcher, and Garcia “FROM PERFORMING A DUTY IMPOSED UPON SUCH OFFICERS BY LAW, OR DID KNOWINGLY RESIST BY THE USE OF FORCE OR VIOLENCE” the officers in the performance of their duties.

During the instructional conference, the court noted the prosecutor included count V as a general intent offense in CALJIC No. 3.30, which defined the general intent crimes charged in this case. The court asked the prosecutor whether specific intent was required for a violation of section 69. The prosecutor explained there were two ways to violate section 69: “One is an attempt to dissuade or resist by threat of force” (italics added) but “that’s not what we’re charging here.” The prosecutor further explained:

“The other is by actual force in attempting--you know, dissuading or delaying by actual force. That’s what we’re applying here.

“If you’re going to try to dissuade by threat of force, there is implied in that that the threat of force has the intent of dissuading or resisting.

“That’s not what we’re alleging here. We’re alleging the actual application of force in the physical act of resisting.” (Italics added.)

The court clarified that “resisting an officer by force or violence is general intent only,” and the prosecutor replied “[g]eneral intent [is] the way we’re alleging it in this case.”

“THE COURT: Whereas if you deter by threat or violence, specific intent to deter officers from performing their duties, you require a specific intent there.

“[THE PROSECUTOR]: Yes. Although the instruction doesn’t say it, I think it’s implicit in it that if you’re doing it by threat, that you have to intend to do it by that threat.”

The court reviewed CALJIC No. 7.50 to “make sure your instruction so reads that.” The court noted the instruction did not address any specific intent for violating section 69, and asked defense counsel if he objected to CALJIC No. 3.30’s inclusion of the offense as a general intent crime. Defense counsel submitted the matter, and the court agreed to instruct that felony resisting was a general intent offense.

Thereafter, the jury received CALJIC No. 7.50 as to the elements of count V, felony resisting in violation of section 69.

“Every person who willfully and unlawfully attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon that officer by law, or who knowingly resists, by the use of force or violence, an executive officer in the performance of his duty, is guilty of a violation of Penal Code section 69, a crime.”

CALJIC No. 7.50 defined an “‘executive officer’” and further stated:

“In order to prove this crime, each of the following elements must be proved: 1. A person knowingly and unlawfully resisted an executive officer in the performance of his duty; and 2. The resistance was accomplished by means of force or violence.”

The jury also received CALJIC No. 3.30, that count V was a general intent offense.

In closing argument, the prosecutor addressed the evidence which supported each count and asserted that count V, resisting arrest, was “the easy one.”

“Of course, if you believe [appellant], he never swung his fists or arms or legs, never did anything. So if you believe him, he’s not guilty.

“But if you believe everybody else that was there, he was pushing, shoving, fighting, running, swinging, kicking, reaching for firearms, doing whatever he could, that is the use of force or violence in resisting the arrest.

“Did he know he was going to be arrested? He tries to tell you on the stand that he didn’t.

“But remember his whole discussion about this thing. He didn’t want to let [the wooden post] go because it was evidence. Evidence of what? A crime.

“Why is evidence of a crime important? Because he knew he was going to get arrested. He’s in that garage banging up everything that belonged to his ex-girlfriend, not his girlfriend. They weren’t still together. Even he can’t believe, after he’s been served with a restraining order that the law says you can’t even go near her, that it’s still his girlfriend.

“And if he really believed they were together, like he told you under oath, why is he in there banging up everything she owns? Doesn’t make any sense.

“No, he knew what he was doing was criminal, just like the time before when she saw him over there when her car had been vandalized . . ..

“He was harassing her and he knew he was doing all this. That’s why he was resisting arrest. He didn’t want to be stopped. He didn’t want to be found out. So Count 5, the Penal Code Section 69, is really not in issue.

“But if you believe he really wasn’t swinging his fists, he wasn’t kicking, he was just trying to get away from these people he knew were cops, then there’s a lesser-included again, a misdemeanor resisting arrest.

“And, of course, if you believe he didn’t even know they were officers trying to arrest him, then I guess he’s not guilty of anything, if you believe that story.”

Defense counsel argued as to all charges that the officers used excessive force and appellant simply tried to defend himself. As to count V, defense counsel argued appellant never had a chance to resist the officers with force or violence, because “he never had a chance.... He got tackled or whatever. He didn’t use any type of force or violence. If he pushed away and continued to run, they’ve already used excessive force, so he’s fine there.”

The record thus reflects that, contrary to respondent’s assertions on appeal, the prosecutor clearly elected to proceed on the second aspect of section 69, that appellant physically resisted arrest by force or violence, and not by threats. More importantly, the jury was only instructed as to the particular elements of the second aspect of section 69 as the offense alleged in count V: that a person “knowingly and unlawfully resisted an executive officer in the performance of his duty,” and the resistance “was accomplished by means of force or violence.” Respondent has thus erroneously characterized the exact offense which was before the jury.

C. Force or violence

We now turn to appellant’s substantial evidence argument, that his conviction in count V must be reversed because the officers used excessive force to take him into custody. “[A] defendant cannot be convicted of an offense against a peace officer engaged in the performance of his or her duties unless the officer was acting lawfully at the time of the offense. [Citations.]” (Manuel G., supra, 16 Cal.4th at p. 818.) “[A]lthough one is not immune from criminal liability for his resistance to an invalid police action, he cannot be convicted of an offense against a peace officer ‘engaged in ... the performance of ... duties’ unless the officer was acting lawfully at the time. [Citations.] The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in ‘duties,’ for purposes of an offense defined in such terms, if the officer’s conduct is unlawful. [Citations.]” (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217, italics in original, superseded by statute on other grounds as explained in In re Steele (2004) 32 Cal.4th 682, 691, and Curl v. Superior Court (2006) 140 Cal.App.4th 310, 320-323.) “ ... [T]he relevant factor is simply the lawfulness of the official conduct that the defendant ... has attempted to deter ....” (Manuel G., supra, 16 Cal.4th at p. 817.)

Appellant asserts his conviction in count V must be reversed because the officers used excessive force and were not lawfully carrying out their duties. Appellant contends that within seconds of emerging from the garage, he was “violently tackled” by Officer Ward, whereas “[u]p to that point he had done nothing more than hold a bedpost over his shoulder.” Appellant notes the bedpost was found outside the garage door, which meant that he did not use the bedpost to resist arrest. Appellant further notes that he did not punch or kick at the officers until “after he had been viciously attacked by a police dog, kicked in the sciatic nerve, and assaulted with pepper spray. At that point, appellant was entitled to use force to resist because the officers’ use of numerous violent tactics was excessive, particularly given the fact that they were attempting to simply investigate a non-violent offense, vandalism.”

Appellant’s version of events omits several key facts. While appellant claims the officers were simply investigating a non-violent vandalism, the record reflects the officers responded to a dispatch that a neighbor reported a burglary in progress, and that “a crazy person causing havoc and destruction” at the house. They saw someone in the garage, swinging around an object that appeared to be a baseball bat and destroying furniture; appellant subsequently testified that he used a bedpost to destroy the furniture and the china cabinet. At this point, however, the officers had no idea about what was happening in that garage--they simply saw a shadowy figure swinging a large object and destroying property.

The officers aimed a light through the garage window, identified themselves, and ordered the subject to stop. Instead, appellant ran out of the garage door, and held onto the wooden bedpost because he knew it could be used as evidence against him. Appellant looked at Officer Garcia and held the bedpost high above his shoulder. Garcia warned the other officers appellant had a weapon, and appellant turned and ran away. Officer Ward also thought he had a baseball bat, and described appellant as raising the weapon in his right hand, as if it was a hatchet. As appellant tried to run away from the garage, he collided into Officers Ward and Hatcher. The officers ordered him to stop resisting and get on the ground but appellant struggled with them. During the struggle, he dropped the bedpost, broke free, and ran toward the street.

At trial, appellant admitted that he saw an officer when he walked out of the garage, and he heard the officer call out “weapon.” Appellant also admitted that he held onto the bedpost because his fingerprints were on it, and he knew it could be used as evidence against him because he had just destroyed the furniture in the garage. In further testimony, appellant claimed he did not know the men were officers until the struggle ended and they placed him in handcuffs, and thought they might have been members of Sepeda’s family. He continued to contradict himself, however, and testified that he struggled to break free and run to a place where other people could see him, because he heard about other instances where the police beat up suspects. He also told an officer that he tried to escape because he thought Sepeda’s family was watching and cheering the struggle.

There is clearly substantial evidence that appellant knew the men were police officers as soon as he emerged from the garage, he knew he faced arrest because he had destroyed the furniture, and he was determined to escape with the bedpost because it was evidence against him. He tried to run but collided with Officers Ward and Hatcher, who ordered him to get down. At that point, appellant was obliged to obey the officers’ lawful orders, but instead, he struggled and tried to break free before the officers used any type of force beyond attempting to stop him from running away.

Appellant declares he did not punch or kick at the officers until “after he had been viciously attacked by a police dog, kicked in the sciatic nerve, and assaulted with pepper spray.” The record demonstrates, however, that appellant punched, kicked, and generally flailed at the officers as he tried to run from the garage and hold onto the bedpost, and that he engaged in force or violence to resist the officers substantially earlier than Officer Ward deployed his canine partner, Officer Garcia kicked him in the sciatic nerve, or Garcia used the pepper spray. Appellant was obliged to surrender once he was knew that police officers were ordering him to drop his weapon and get down on the ground. He ignored their initial orders and tried to run, but collided into Ward and Hatcher as he left the garage. He ignored their orders, broke free, and ran toward the back of the yard. At that point, Ward ordered his canine partner to restrain the suspect. Appellant still refused the officers’ orders to surrender, managed to touch Ward’s gun holster, and was able to escape after being brought down by the dog. He ran toward the garage and tried to jump over the fence, and Garcia administered the pepper spray. Appellant held onto the fence and refused to surrender, and the officers tackled him and Garcia kicked his sciatic nerve. The officers threw him back into the yard, appellant continued to kick and punch at them, and Officer Ward again deployed his canine partner. Appellant was finally subdued and placed into handcuffs.

Appellant concedes that he “undoubtedly was attempting to flee during his encounter with police,” but that fact was “far outweighed by the fact that he was suspected of committing a non-violent property offense (which turned out to be misdemeanor vandalism), that he dropped the bedpost immediately, that he ultimately was surrounded by four officers and a police dog, and that he was beaten, bitten and pepper-sprayed numerous times.” As explained ante, however, the officers responded to a suspected burglary dispatch and simply knew that a subject was using an object similar to a baseball bat to destroy property in the garage. The specific nature of his conduct--which he now describes as “a non-violent property offense”--was not immediately apparent, and was not conclusively determined until after he was taken into custody. Moreover, appellant admitted that he did not immediately drop the bedpost, he intended to hold onto it because he did not want to leave evidence behind, and he dropped it during his struggle to escape from Officers Ward and Hatcher. Finally, appellant was not bitten by the dog until he had repeatedly ignored the officers’ orders to surrender and get down, and he was not pepper-sprayed until he tried to jump over the fence by the garage.

Appellant asserts that since the jury acquitted him of the assault charges as to the individual officers, the guilty verdict for resisting arrest was “inexplicable.” The jury herein was instructed that it was the prosecution’s burden to prove beyond a reasonable doubt that the officer was engaged in the performance of his duties, and that an officer was not so engaged if he used unreasonable or excessive force in attempting to make an arrest or detention. Indeed, defense counsel argued in closing argument that appellant was not guilty of count V because he never used force or violence, whereas the officers used excessive force and he was entitled to protect himself. The jury herein carefully analyzed the evidence and the eight charged offenses, and found appellant not guilty of assault with a deadly weapon and battery on Officers Ward and Hatcher, and exhibiting a deadly weapon to resist arrest as to Officer Garcia. The jury could have found the wooden bedpost was not a deadly weapon, or that appellant did not wield it at the officers in the course of an assault or battery. Indeed, Officer Garcia conceded that appellant never aimed or swung the bedpost at any of the officers, but instead flailed around in an attempt to break free and run away. In doing so, however, there is no doubt that he used force or violence as he tried to escape. The jury’s guilty verdict for resisting arrest with force or violence is not inconsistent with the other findings in this case. Indeed, the jury was instructed on misdemeanor resisting arrest, in violation of section 148, subdivision (a)(1), as a lesser offense, and could have returned that verdict if it found he simply resisted arrest without force or violence. Given the entirety of the jury’s verdicts and careful analysis, their decision to find force or violence in this case is not inconsistent with the not guilty verdicts on the other counts.

II.

THE PRIOR STRIKE CONVICTIONS

Appellant was alleged to have suffered three prior strike convictions: first degree burglary in 1980, and two convictions from 1991: assault with a stun gun and false imprisonment, with enhancements as to both offenses for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)). The personal use enhancements were based on appellant’s use of a stun gun to shock the victim in that case.

As we will discuss post, the three strikes law provides that a prior felony conviction constitutes a strike if it is a serious felony as defined in section 1192.7, subdivision (c), or a violent felony as defined in section 667.5, subdivision (c). (§ 667, subd. (d)(1); People v. Blackburn (1999) 72 Cal.App.4th 1520, 1525 (Blackburn).) Neither assault with a stun gun or false imprisonment are serious or violent felonies. But section 1192.7, subdivision (c)(23) provides that “any felony in which the defendant personally used a dangerous or deadly weapon” constitutes a serious felony. A defendant’s prior admission to a section 12022, subdivision (b) enhancement, that he personally used a deadly or dangerous weapon in the commission of a felony, constitutes proof that felony is a serious felony within the meaning of section 1192.7, subdivision (c)(23). (People v. Equarte (1986) 42 Cal.3d 456, 465 (Equarte).)

Appellant contends the trial court herein improperly found the two prior convictions from 1991 were serious felonies. Appellant acknowledges that he admitted personal use enhancements in connection with his pleas in the 1991 case, and those enhancements render the offenses as serious felonies, but asserts that a stun gun is not a deadly or dangerous weapon within the meaning of either the section 12022, subdivision (b) enhancement, or the definition of a serious felony in section 1192.7, subdivision (c)(23). Appellant asserts the trial court was obliged to consider the entire record of conviction, including the preliminary hearing transcript, which would have demonstrated the prior convictions were not serious felonies because he used the stun gun in the manner for which it was designed, and such a device can only be a deadly or dangerous weapon if used as a club or bludgeon. Appellant acknowledges there is no published California decision as to whether a stun gun is a deadly or dangerous weapon, but inferentially relies on the reasoning of a nonpublished case which reached that conclusion.

Respondent contends the two prior convictions were strikes simply based on the bare facts of his guilty pleas and admissions in that case, which rendered the prior convictions as serious felonies based on the personal use enhancements, and the court could not use the preliminary hearing transcript from the 1991 case to refute the validity of those pleas and admissions. Respondent further asserts that Shepard v. United States (2005) 544 U.S. 13 [125 S.Ct. 1254] (Shepard), prevents a trial court from conducting an investigation into the circumstances of the underlying crimes.^[4] Respondent does not address whether a stun gun is a deadly or dangerous weapon.

We will review the procedural and factual history of appellant’s prior convictions, the parties’ arguments and the court’s ruling below, and address the legal issues raised by appellant’s arguments.

A. The Special Allegations

As set forth ante, appellant was charged with eight felonies in the instant case but only convicted of count V, felony resisting an officer by the use of force or violence. As to count V, the information alleged appellant suffered three prior strike convictions in the following Kern County cases: (1) first degree burglary (§ 459), in 1980; (2) assault with a stun gun (§ 244.5),^[5] with an enhancement for personal use of a deadly or dangerous weapon (§ 12022, subd. (b)) in 1991; and (3) false imprisonment (§ 236), also with the personal use enhancement, and in the same 1991 case. The parties do not dispute that appellant’s conviction for first degree burglary is a serious felony and a strike. (§ 1192.7, subd. (c)(18); People v. Rodriguez (2004) 122 Cal.App.4th 121, 131-132).

The two convictions from 1991 were based on an incident when appellant accosted his former girlfriend and demanded to talk with her, she refused, and he applied a stun gun to her stomach area. The victim immediately felt a shock and a burning sensation, followed by weakness and not being able to move. Appellant pulled the victim toward a car and again applied the stun gun to her stomach, and she felt the same burning and weakness sensations. Appellant pushed her into a car and drove away with her. He later stopped at a convenience store for gasoline, and the victim was able to escape and call for help.

In the 1991 case, appellant was originally charged with kidnapping (§ 207), assault with a stun gun, and misdemeanor resisting arrest (§ 148). He subsequently pleaded no contest to felony assault with a stun gun and felony false imprisonment, and admitted section 12022, subdivision (b) enhancements for both offenses, that he personally used a deadly or dangerous weapon, a stun gun, in the commission of those offenses. He also pleaded no contest to misdemeanor resisting arrest, and the court dismissed the kidnapping charge. He was sentenced to an aggregate term of four years in prison.

B. The Posttrial Motions

The court herein bifurcated the matter of the prior strike convictions and appellant waived a jury trial on the issue. The prosecutor filed a posttrial motion and argued appellant’s prior convictions from the 1991 case were both strikes because he admitted enhancements for personal use of a deadly or dangerous weapon pursuant to section 12022, subdivision (b). The prosecutor also noted that when appellant testified in the instant case, he admitted he suffered two felony convictions of moral turpitude in 1991. The prosecutor argued appellant’s pleas and admissions resolved all issues raised by the special allegations, and no other evidence could be used to deny the least adjudicated elements of those prior convictions based on appellant’s pleas and admissions.

Thereafter, the court conducted the bifurcated hearing on the truth of the special allegations. The prosecutor introduced several documents to establish the truth of the three prior convictions as serious felonies. The prosecutor argued that in the 1991 case, appellant admitted enhancements for personal use of a deadly or dangerous weapon, and those admissions raised the two prior convictions to serious felonies based on section 1192.7, subdivision (c)(23).

The court asked whether, aside from appellant’s admissions to the personal use enhancements, it could consider if a stun gun was a deadly or dangerous weapon. The prosecutor replied:

“And certainly, in general, I think it makes sense that, in general, a stun gun isn’t [a deadly weapon], because if it was, then the Penal Code Section 244.5 would be superfluous, because an assault with a stun gun would be punishable under [section] 245(a)(1).”

The prosecutor stated “the implication is” that a stun gun, by definition, is not a deadly or dangerous weapon. The prosecutor further stated that a nonpublished opinion held a stun gun was not a deadly or dangerous weapon unless used as a club or bludgeon.^[6]

The prosecutor further argued, however, that once appellant admitted the section 1202