1 Filed 7/3/14 P. v. Esparza CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 APPELL ATE DISTRICT DIVISION TWO

THE PEOPLE, Plaintiff and Respondent,

v. FIDEL ESPARZA, Defendant and Appellant. E058199 (Super.Ct.No. FCH1200181) OPINION

APPEAL from the Superior Court of San Bernardino County. Mary E. Fuller, Judge. Affirmed. Lewis & Llewellyn and Marc Robert Le wis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Da ne R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Senior Assistan t Attorney General, A. Natasha Cortina, Deputy Attorney Ge neral, for Plaintiff and Respondent.2 Defendant Fidel Esparza sped out of a gas station and was pursued by a Chino Police officer. Defendant did not immediately yield to the officer’s lights and sirens. Defendant eventually pulled over but remained seated in the driver’s seat ignoring the commands of the officer to exit his truck. Even tually, several officers arrived to help and had to break the driver’s side window with a sledge hammer in order to extract him from his truck. Defendant was convicted of two misdem eanors of evading a police officer and resisting a peace officer. Defendant no w contends on appeal as follows: 1. The trial court erred by failing to inst ruct the jury with a critical element of the resisting arrest inst ruction (CALCRIM No. 2670). 2. The trial court erred and violat ed his due process rights by excluding evidence of injuries he su stained during his arrest. 3. Insufficient evidence was presented to support hi s conviction of violating Penal Code section 148. 4. Cumulative errors warrant reversal of his conviction. We affirm the judgme nt in its entirety. I PROCEDURAL BACKGROUND Defendant was charged by the San Bernardi no County District Attorney’s Office with misdemeanor evading a police officer (Veh. Code, § 2800.1, subd. (a)) and felony resisting an executive officer w ith force or violence (Pen. Co de, § 69). The jury found3 defendant guilty of evading a police officer as charged but found him guilty of the lesser included offense of misdemeanor resisting a peace officer in the performance of that officer’s duty (Pen. Code, § 148, subd. (a)). 1 Defendant was ordere d to spend 280 days in a San Bernardino County Jail facility and was granted conditional and revocable release for a period of 36 months. II FACTUAL BACKGROUND On April 29, 2012, Chino Police Officer Alex Blanco observed defendant leaving a gas station in a white truck at a high rate of speed. 2 Officer Blanco followed defendant and intended to execute a traffic stop. De fendant swerved between lanes and straddled the center line. He made a right turn from a le ft hand turn lane. Offi cer Blanco turned on his lights and followed defendant. Defendant did not stop so Officer Blanco turned on his siren and called dispatch for back up. Defendant continued to speed and ran a stop sign. Officer Joshua Townsend joined in the chase. Defendant eventu ally parked in fr ont of a driveway. Officer Blanco exited his car and observe d the window on the truck was partially open. He yelled that he was from the Chino Police Department and ordered defendant to exit the truck. Defendant threw his hands back over his shoulder in an aggressive manner and yelled something that Officer Blanco could not understand.

1 All further statutory references ar e to the Penal Code unless otherwise indicated. 2 Defendant was initially driving over 60 miles per hour in a 35 miles per hour zone.4 At that point, approximately seven other officers arrived at the scene. After the officers arrived, for the next nine minutes, Officer Blanco told defendant over a loud speaker in both English and Spanish that he need ed to exit his truck. He was advised that if he did not exit the truck, fo rce would be used to extract hi m. Officer Blanco threatened to send a police dog after him. Defendant did not move. Six officers approached th e truck with guns drawn. They hid behind a ballistic shield that was being held by Officer Satjit Singh. Officer Blanco gave defendant one last command to exit the car. He refused and appeared to be texting on his phone. One of the supervising officers decide d to use a sledge hammer to break the driver’s side window once it was discovered that the truck’s doors were locked. The decision to break the window was made becau se the officers were unsure if defendant was armed, why he failed to yield, they did not know who he was texting, and whether he was contacting persons inside the house to co me out and assist him while he was parked outside. Further, it was an unusual occurrenc e that defendant would not exit his car. Once the window was broken , Officers Townsend, Singh and Kevin Kline reached in and grabbed defendant’s arms . Defendant stiffened his ar ms to his side to make it difficult for officers to remove him from the truck. The o fficers were able to get defendant out of the car and put him on the gr ound, which was standard procedure for an arrest. Officer Townsend put we ight on defendant to try to handcuff him. Defendant put his arms under his body and resisted the effort s to handcuff him. It took approximately 15 seconds to get defendant handcuffed.5 Defendant did not have a ny weapons. Defendant did not try to kick or hit the officers when he was in th e truck or on the ground. III INSTRUCTIONAL ERROR Defendant contends that the trial court erred by failing to give a critical element of CALCRIM No. 2670 that would have instruct ed the jury that they could not find defendant guilty of resisting arrest if the arrest was unlawful, ev en if he knew or reasonably should have known that the officer was arresting him. A. Additional Factual Background Paragraph C of CALCRIM No. 2670 provides in pertinent parts as follows: “A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense. [¶ ] [If a person knows, or reasonably should know, that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer’s use of reasonab le force. [However, you may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the defendant knew or reasonably sh ould have known that the offi cer was arresting him.]].” (CALCRIM No. 2670, re vised January 2006.) During discussion of the instructions, th e trial court noted that it was going to instruct the jury with the le sser included offense of resistin g arrest under section 148 to the charge of resisting an execu tive officer with the use of for ce or violence in section 69. The trial court then discussed CALCRIM No. 26 70. The parties agreed to not give two portions (paragraphs A and B) of the instructi on. They then discu ssed paragraph C of the6 instruction regarding use of force. The tria l court stated, ‘“C,’ the first paragraph I will give and including the subparagraph, ‘If a person knows or reasonably should know a peace officer is arresting or detaining him or her - - then delete the next paragraph.” Defense counsel asked which para graph. The trial court then responded, “Not paragraph. Next bracketed sentence. Second brackete d sentence. There’s no claim that the defendant used force. So it does n’t seem that next - - well, th ere is. There’s a claim. So the next paragraph I would leave as is. All right. So I would leave those last two in.” At the next conference, the trial court pr esented to the parties a modified version of CALCRIM 2670 based on the discussions by th e parties. The trial court stated, “[a]nd then I printed out this morning a modified 2670, modified in the way that we had discussed it last week, deleting all of the refere nces other than the unlawful use of force.” There was no comment by defense counsel. CALCRIM No. 2670 was given, in its entiret y, as follows: “The People have the burden of proving beyond a reasonable doubt that Jos hua Townsend was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of Count 2 or the lesser in cluded offense to Count 2, resisting, obstructing or delaying an offi cer. [¶] A peace officer is not lawfully performing his or her duties if he or she is us ing unreasonable or excessive force in his or her duties. A peace officer may use reasonabl e force to arrest or detain someone to prevent escape, to overcome re sistance or in self-defense. [¶] If a person knows or reasonably should know that a peace officer is arresting or detaining him or her, the person must not use force or any weapon to resist an officer’s us e of reasonable force. [¶]7 If a peace officer uses unreasonable or excess ive force while detaining or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself. [¶] A person being a rrested uses reasonable force when he or she uses that degree of force that he or she actually belie ves is reasonably necessary to protect himself or herself from the officer’s use of unreaso nable or excessive force, and two, uses no more force than a reasonable person in the sa me situation would believe is necessary for his or her protection.” B. Forfeiture The People contend that defendant has fo rfeited his claim that the trial court committed instructional error by failing to object to the instruction in the trial court. Initially, it appeared that the trial court intended to gi ve the missing portion of the instruction. However, when the trial court ga ve the written instructi on to both counsels, the complained-of bracketed po rtion of the instruction was missing. At that time, defendant’s counsel did not object. The Peop le argue that because the bracketed portion was redundant to other properly given instru ctions, defendant was required to request the additional instruction, and his fail ure to do so did not impact hi s substantial rights so as to overcome the forfeiture. Defendant - - anticipating th at respondent would argue th at he forfeited the claim - - insists he received ineffective assistance of counsel if he is found to have forfeited his claim. In order to avoid a lengthy discussi on of forfeiture and ine ffective assistance of counsel, we will review the claim on its merits.8 C. Analysis ‘““It is settled that in criminal cases, even 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.”’ [Citations.]” ( People v. Breverman (1998) 19 Cal.4th 142, 154.) We review defendant’s claims of instructional error de novo. ( People v. Cole (2004) 33 Cal.4th 1158, 1210.) “‘In conducting this review, we first ascertain the relevant law and then “determine the meaning of the instructions in th is regard.” [Citation.] [¶] The proper test for judging the adequacy of in structions is to decide whether the trial court “fully and fairly instructed on the applicable law . . . .” [Citation.] “‘In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole . . . [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given. [Citation.]’” [Citation.] “Instruc tions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reas onably susceptible to such interpretation.” [Citation.]’” ( People v. Johnson (2009) 180 Cal.A pp.4th 702, 707.) Defendant was charged with violating section 69. A pe rson is guilty of violating section 69 if he “[a]ttempts, by means of any th reat or violence, to deter or prevent an executive officer from performin g any duty imposed upon such officer by law, or who knowingly resists, by the use of force or viol ence, such officer, in the performance of his duty, . . .” Defendant was also charged with the lesser offense of vi olating section 148. “The legal elements of a violation of section 148, subdivision (a) are as follows: (1) “the defendant willfully resisted, de layed, or obstructed a peace officer, (2) when the officer9 was engaged in the performance of his or he r duties, and (3) the defendant knew or reasonably should have known that the other person was a pe ace officer engaged in the performance of his or her duties. [Citation.]” ( People v. Simons (1996) 42 Cal.App.4th 1100, 1108-1109.) In proving a violation of section 148, the prosecu tion must prove beyond a reasonable doubt that the officer was acting la wfully at the time the offense against him was committed. ( In re Joseph F. (2000) 85 Cal.App.4th 975, 982; People v. Simons,

supra, 42 Cal.App.4th at p. 1109.) An officer using excessive force cannot be acting in lawful performance of his duties and a defe ndant cannot be found guilty of resisting arrest. ( People v. Olguin (1981) 119 Cal.App.3d 39, 44.) ‘“The rule flows from the premise that because an officer has no duty to take illegal acti on, he or she is not engaged in “duties,” for purposes of an offense defined in such terms, if th e officer’s conduct is unlawful. [Citations]’ [Citation].” ( Simons, supra, at p. 1109.) The jury in this case was in structed that to find de fendant guilty of the lesser offense, it must find that Officer Town send [who was the named officer in the information] was “a peace offi cer lawfully perform ing or attempting to perform his duties as a peace officer;” that “defe ndant willfully arrested or obstructed or de layed Joshua Townsend in the performance or attempted perfo rmance of those duties” and finally that when defendant acted, “he knew or reasonably should have known that Joshua Townsend was a peace officer performing or attempting to perform his duties.” The jury was informed that an officer was not lawfully performing his duty if he used excessive force as defined in CALCRIM No. 2670, which is set forth in detail, ante

.10 In the Bench Notes to CALCRIM NO. 2670, it is stated that, “If the case involves an alleged violation of Penal Code section 148 as well as othe r offenses in which lawful performance is an element, the court may gi ve the bracketed sentence [If a person knows, or reasonably should know, . . . ] but must also give the sentence that begins with “However, you may not find the defendant guilty of resisting arrest.” There is no citation to authority. Despite the statement in the Bench Notes, th e jury was properly instructed in this case based on the entirety of the instructions in this case. It was clear from the instructions that the jury had to conclude that Officer Townsend was lawfully performing his duties in order to find de fendant guilty of section 148. Further, Officer Townsend could not be lawfully performing his duties if he was using excessive force. The jury was given the pertinent portion of CALCRIM No. 2670 as to excessive force. We see no reason for the trial court to give yet another in struction to the jury th at if the arrest was unlawful, he could not be found guilty of re sisting arrest. There was no instructional error based on the totality of the instructions. Defendant relies extensively on People v. White (1980) 101 Cal. App.3d 161. In White, the defendant assaulted multiple arresting o fficers, struggled during her arrest, and bit an officer who had placed he r in a hold to subdue her. ( Id. at p. 165.) The defendant was convicted of, among other ch arges, resisting arrest. ( Id. at p. 164.) She contended on appeal that, although the court properly inst ructed the jury concerning the definition of a lawful arrest and concerning the right of a peace officer to use reasonable force to effect an arrest, its instructions were incomplete because they did not address the issue of11 excessive force used by the officers. ( Id . at p. 166.) The jury wa s instructed that “it is the duty of such person to refra in from using force to resist su ch arrest whether the arrest is either lawful or unlawful unless unreasonable or excessive force is being used to make the arrest.” ( Id. at p. 166, fn. 2.) The appellate court concluded that because there was an issue of excessive force presented, which, if found to have occurre d, would have made the arrest unlawful, “it became esse ntial for the jury to be told that if they found the arrest was made with excessive force, the arre st was unlawful and they should find the defendant not guilty” of the offenses of which she was ultimately convicted. ( Id. at p. 167.) White is distinguishable from this case. He re, the instructions for section 69 and 148 both advised the jurors that “a peace offi cer is not lawfully performing his or her duties if he or she is using unreasonable or ex cessive force in his or her duties.” It also advised the jurors that reasonable force used by officers could be used to prevent escape, overcome resistance or in self-defense. The connection between resisting arrest and the use of excessive force was clear from the instructions given in this case. Even if the trial court erred by excludi ng the bracketed portion of CALCRIM No 2670, it was not prejudicial. The parties di sagree over whether th e error should be evaluated under People v. Watson (1956) 46 Cal. 2d 818, 836 or Chapman v. California (1967) 386 U.S. 18. We conclude that whiche ver standard is applied, the error does not warrant reversal.12 Initially, defendant’s counsel never argued to the jury that there was excessive force used by Officer Townse nd. Defendant’s counsel ar gued it was not necessary for the police to break the window and take defe ndant from the car over a speeding ticket. Defendant’s counsel argued that the officers shou ld have tried to talk to him and just give him a ticket. Defendant’s counsel argued the police overreacted but never said anything about excessive force. Further, there was substantial evidence pr esented that the officers did not use excessive force. Defendant fled from Office r Blanco, driving at excessive speeds and endangering other drivers. Defendant refused to come out of his tr uck even though he was surrounded by police cars and Officer Blan co tried to get him to exit the truck for over nine minutes. Since the officers did not know if defendant had a weapon or why he refused to comply with their commands, they were forced to break into the truck. Defendant stiffened up and would not comply even after the window was broken. Based on his actions, it took three officers to extract him from the truck. They used standard procedure to get him handcuffed. At no time di d any of the officers strike defendant or use their batons to subdue him. Based on this evidence, there was nothing to support that the officers used excessive force and ampl e evidence supported his conviction of violating section 148 based on his failure to follow the offi cers’ commands and resisting the efforts to take him from the truck.13 Based on the foregoing, the totality of the in structions informed the jury as to the requirement that Officer Townsend had to be lawfully performing his duty, e.g. not using excessive force, in order for them to find defendant guilty of violating section 148. Ample evidence supported defendant’s conviction. IV EXCLUSION OF EVIDENCE OF DEFENDANT’S INJURIES Defendant contends that th e trial court erred and thereby violated his right to present a defense by excluding evidence of in juries he sustained as a result of being pulled from his truck. This ar gument is bordering on frivolous. During the People’s case-in-chief, Officer Singh testified that he received minor cuts on his arm and finger during the altercat ion. During cross-examination of Officer Singh, defense counsel inquired “Do you know if [defendant ] received any injuries?” Officer Singh responded, “I believe he might have had cuts as well.” Defendant’s counsel then asked Officer Singh if he obs erved any of the injuries. Officer Singh responded, “I didn’t deal with him. On ce he was cuffed, he was taken away.” Defendant’s counsel also asked, “Okay. Wh en you are talking about some cuts, were they cuts similar to the ones you had?” Officer Singh responded, “I am sure. I didn’t see them, but obviously with the glass.” The tr ial court interrupted and stated, “All right. Then you are speculating. I will ask you not answer.” Officer Kline testified that he had f our abrasions on his arm from defendant grabbing his arm during the struggle to extricate him from the truck.14 During cross examination of Officer Kline, defendant’s counsel asked, “Okay. Now, were you aware of whether or not [defe ndant] received any injuries as well?” The prosecutor objected on the grounds of releva nce. The objection was sustained. The People then rested and defe ndant presented no evidence. “No evidence is admissible except relevant evidence.” (Evid. Code, § 350.) “‘“Relevant evidence is define d in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whethe r the evidence tends ‘“logically, naturally, and by r easonable inference” to estab lish material facts such as identity, intent, or motive. [Cita tions.]’ [Citation.] The tria l court has broad discretion in determining the relevance of evidence [citati ons] but lacks discretion to admit irrelevant evidence. [Citations.]” [C itation.]’ [Citation.]” ( People v. Carter (2005) 36 Cal.4th 1114, 1166-1167.) Here, defendant made no offer of proof that he was injured by the officers during the incident. Officer Singh speculated that defendant had cuts from the glass, and the trial court did not strike the testimony de spite Officer Singh not actually seeing any injury. There was nothing from which the trial court could make a determination when the question was posed to Office Kline that defendant had any more than cuts from the glass while being extracted, that Officer Klin e had knowledge of the injuries, or that defendant was injured at all. Cuts from glass had no relevance to the use of excessive force as they would not have been caused by the officers. The trial court properly determined, without more, that a question to Officer Kline about some unknown injuries15 was irrelevant to the issue of whether exce ssive force was used. It was incumbent upon defendant’s counsel to provide more informati on to the trial court. Moreover, even if the trial court erred, defendant cannot possibly show he was prejudiced. “[T]he admission [or exclusion] of evidence, even if erroneous under state law, results in a due proce ss violation only if it makes th e trial fundamentally unfair. [Citations.]” ( People v. Partida (2005) 37 Cal.4th 428, 43 9, italics omitted.) Thus, absent federal constitutional error, the standard of prejudice for th e erroneous exclusion of evidence is the ha rmless error test in People v. Watson, supra, 46 Cal.2d at page 836. While “[t]he complete exclus ion of defense evidence . . . ‘“theoretically could rise to [the] level”’ [citation] of a due process vi olation[,] . . . short of a total preclusion of defendant’s ability to present a mitigating ca se to the trier of fact, no due process violation occurs; even ‘“[i]f the trial cour t misstepped, ‘[and its] ruling was an error of law . . . [and] there was no refusal to allow [defendant] to present a defense, but only a rejection of some evidence concerni ng the defense.’”’ [Citation.]” ( People v. Thornton (2007) 41 Cal.4th 391, 452-453.) Here, as set forth ante , defendant was able to in troduce some evidence of a possible injury to defendant. Ho wever, it is not entirely clear from the reco rd that the trial court excluded any evidence of an injury caused by the o fficers as there is absolutely nothing in the record to support that defendan t was in fact injured by the officers. We cannot find prejudice based on a bald assertio n by appellate counsel that defendant may16 have been injured. 3 Finally, as set forth ante , the evidence estab lished that Officer Townsend was lawfully performing his duty a nd if defendant was injured while Officer Townsend was acting in accordance with th at duty it would not have changed the determination by the ju ry even had the evid ence been admitted. V INSUFFICIENT EVIDENCE Defendant contends that insufficient ev idence was presented to support his conviction of violating section 148. “Our task is clear. ‘On appeal we revi ew the whole record in the light most favorable to the judgment to determine whet her it discloses substantial evidence—that is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant gu ilty beyond a reasonable doubt. [Citations.] The standard of review is the same in cases in whic h the People rely mainly on circumstantial evidence. [Citation.] “Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpreta tions, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonabl e doubt. ‘“If the circumstances reasonably justify the trier of fact's findings, the opinion of the re viewing court that the circumstances might also reasonably be re conciled with a cont rary finding does not warrant a reversal of the judgment.”’ [Cita tions.]” [Citation.]' [Citations.] The

3 Obviously if defendant was not injured, the respon se by Officer Kline would be completely irrelevant.17 conviction shall stand ‘unless it appears “tha t upon no hypothesis whatever is there sufficient substantial eviden ce to support [the conviction].”’ [Citation.]” ( People v. Cravens (2012) 53 Cal.4th 500, 507-508.) We set forth the elements of section 148, ante . “In most cases, section 148 has been applied to physical acts, such as fleeing from a proper investigatory detention by a police officer [citations], brandishing a gun at an officer [citations], passively resisting an arrest by going limp [citation], or struggling p hysically with an officer making an arrest [citations] or attempting to break up a fight.” ( People v. Quiroga (1993) 16 Cal.App.4th 961, 967.) Section 148 has also been applied to “a combination of verbal and physical interference with an officer’s performance of his duties.” ( Ibid .) As we have outlined, ante , there was no evidence of exce ssive force. Further, the evidence established that defendant refused to exit his truck despite being ordered to do so by Officer Blanco. The officers were forced to br eak the window on the truck and defendant continued to refuse to exit the truck. He stiffened his arms to his side making it difficult for the officers to extract him fro m the truck and resisted being handcuffed. The evidence clearly established that defendant was resisting arrest and he was properly found to have violated section 148.18 VI CUMULATIVE ERROR Defendant finally claims that if the erro rs raised standing alone do not constitute reversible error, we must eval uate the errors cumulatively. He contends the cumulative errors warrant reversal. We have rejected each claimed error and found them harmless when considered separately. We similarly c onclude that their cumu lative effect does not warrant reversal of the judgment. ( People v. Bolden (2002) 29 Cal.4th 515, 567-568.) VII DISPOSITION The judgment is affirmed. NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RICHLI J. We concur:

RAMIREZ P. J.

CODRINGTON J.