Filed 1/17/23 P. v. Lechuga CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

RICHARD LECHUGA,

Defendant and Appellant.

 D079398

 (Super. Ct. No. SCE395395)

APPEAL from a judgment of the Superior Court of San Diego County, 

Patricia K. Cookson, Judge. Affirmed in part, reversed in part, remanded 

with instructions.

Kenneth J. Vandevelde, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A. 

Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

I

INTRODUCTION

Law enforcement officers encountered defendant Richard Lechuga

walking in and out of traffic, acting abnormally, and making suicidal 

statements. They planned to detain him for a mental health assessment, 

evaluation, and treatment under Welfare and Institutions Code section 5150. 

Before they could do so, he reached for a nearby canister of bear spray, which 

triggered a tense standoff with law enforcement. During the standoff, he

sprayed the canister of bear spray into the faces of three deputy sheriffs,

slashed a police dog with a knife, and shot a pellet gun into the ceiling of his 

car. Law enforcement officers ultimately used pepper spray, a pepper ball 

gun, beanbag shotguns, and a taser to subdue and arrest the defendant. 

After a trial, the defendant was found guilty of one count of exhibiting a 

deadly weapon to a peace officer to resist arrest (Pen. Code,1 § 417.8; 

count 1); three counts of resisting an executive officer (§ 69, subd. (a); 

counts 2–4); one count of animal cruelty (§ 597, subd. (a); count 5); one 

misdemeanor count of brandishing an imitation firearm in a threatening 

manner (§ 417.4; count 7); and one misdemeanor count of harming a police 

dog (§ 600, subd. (a); count 8).2 He also pleaded guilty to one misdemeanor 

count of possession of tear gas by a felon (§ 22810, subd. (a); count 9). True 

findings were made on allegations he used a deadly and dangerous weapon (a 

knife) in the commission of counts 1 and 5 (§ 1192.7, subd. (c)(23)); he

1 Further undesignated statutory references are to the Penal Code.

2 At the close of trial, the court dismissed an animal neglect charge and 

renumbered the remaining charges for purposes of the jury’s verdict forms. 

The counts referenced herein reflect the charges as alleged in the operative 

charging instrument prior to the renumbering.
3

committed counts 1–5 while released from custody on bail (§ 12022.1, 

subd. (b)); and he personally used a deadly and dangerous weapon (a knife) in 

the commission of count 5 (§ 12022, subd. (b)(1)). The trial court sentenced 

the defendant to an aggregate term of six years in state prison. 

On appeal, the defendant argues: (1) there was insufficient evidence to 

support his convictions for counts 2–5 and 7–8; (2) the trial court committed 

instructional error; (3) the court improperly imposed multiple punishments 

for a single act of slashing a police dog with a knife; and (4) the court violated 

his constitutional rights and state law by imposing a $10,000 restitution fine 

and a $10,000 stayed parole revocation restitution fine. 

We agree with the defendant that the trial court erroneously imposed 

multiple punishments for a single act. Therefore, we vacate the sentence and 

remand the matter for a full resentencing proceeding. We do not address the 

defendant’s arguments concerning the restitution fines, which may be 

presented to the trial court during resentencing. We reject the defendant’s 

remaining arguments and affirm the judgment in all other respects.

II

BACKGROUND

“In light of the sufficiency of the evidence contentions that follow, we 

set forth the facts here in the light most favorable to the judgment.” (People 

v. Lee (2011) 51 Cal.4th 620, 625, fn. 5.)

One morning, U.S. Border Patrol agent Charles Oakey was parked in 

his marked patrol vehicle on a street in a rural area of Jamul. A passing 

motorist notified him a man up the road was running in and out of traffic and 

saying strange things like he wanted to die. 

Agent Oakey drove up the road and saw the defendant walking along 

the shoulder. The defendant was not wearing a shirt and he looked sweaty
4

and agitated. Agent Oakey pulled up next to the defendant and asked how it 

was going, and the defendant replied, “man, I’m having a really shitty day.” 

Agent Oakey offered to help and asked the defendant to meet him at a nearby 

street pullout where the defendant’s car was parked. 

At the street pullout, the defendant told agent Oakey he was on his 

way to a job interview, but his car broke down. According to agent Oakey, 

the defendant also said, “something about a dead body on the side of the road 

somewhere.” The defendant was “real sweaty” and certain of his statements

were nonsensical. 

Agent Oakey noticed the defendant had a large canister in his 

waistband. He asked about the canister and the defendant said it was 

pepper spray; in fact, it was bear spray. Agent Oakey asked the defendant to 

“ditch” the canister in his car and the defendant complied. 

The defendant asked for water and help getting his car running. Agent 

Oakey retrieved water from his patrol vehicle for the defendant. While he 

was there, he radioed dispatch and asked for the county sheriff’s department

to come out and conduct a welfare check on the defendant. Agent Oakey 

returned to the defendant’s car, gave the water to the defendant, and waited 

for the sheriff’s deputies to arrive. As he waited, a second U.S. Border Patrol 

agent parked his marked patrol vehicle and joined agent Oakey. 

Soon after, deputy sheriff Bryan Paukovits arrived and took the lead 

role speaking with the defendant, who at this point was in the driver’s seat of 

his car with the car door open. Deputy Paukovits walked towards the car and 

asked, “How’s it going, sir?” The defendant said, “bad, I just need a [car

battery] jump.” But then, as deputy Paukovits approached the car, the 

defendant slammed the driver-side door shut and blasted music from his 

phone speaker. Speaking through the closed car door, deputy Paukovits 
5

offered to jump the defendant’s car battery and reassured the defendant 

several times he was not in trouble. He repeatedly asked the defendant to 

speak with him and open his car door or roll down his car window, but the 

defendant refused. 

Unable to engage the defendant in conversation, deputy Paukovits 

returned to the patrol vehicles that were parked behind the defendant’s car. 

The law enforcement team ran the license plates on the defendant’s car and 

learned he had prior charges for domestic violence and resisting an executive 

officer. A few minutes later, a second deputy sheriff, corporal Mike 

Villalobos, arrived in a marked patrol vehicle. 

In the interim, the defendant remained inside his car with the doors

and windows closed, moving his head around and gesticulating his arms 

erratically. About six minutes after the defendant closed the driver-side door, 

he opened it back up again. Periodically, he yelled and screamed to himself, 

at one point screaming, “Oh my god,” for no apparent reason.

Deputy Paukovits and corporal Villalobos walked to the defendant’s car 

and deputy Paukovits engaged the defendant in conversation. Throughout 

the conversation, deputy Paukovits stood with his arm draped over the open 

driver-side door about two feet from the defendant, while corporal Villalobos 

stood a few feet behind deputy Paukovits. 

Deputy Paukovits asked the defendant if he was okay and whether he 

needed help, to which the defendant replied, “I need a bullet between my 

eyes.” Deputy Paukovits asked why he said that and the defendant 

screamed, “Because I’ve died so many times and I can’t seem to fucking die, 

and it’s a curse for everybody because I just keep on fucking coming back. 

Don’t I? I’m sorry to disappoint you! I can’t fucking die that easily!” Deputy 

Paukovits asked whether the defendant wanted to die and he replied, “Why 
6

the fuck not? I lost everything. I don’t have shit here.” He said he had 

“nothing to live for” because Satanists “stole [his] baby and probably ate 

him.” He said he had no money, no gas, and a dead car battery. He also 

screamed, “No girl wants me. Not a single girl in this fucking world wants 

me, bro.” 

Deputy Paukovits offered to get a tow for the defendant. The defendant

said he could not afford one, but deputy Paukovits could help him by opening

the hood to his car. Deputy Paukovits said he would “work on that,” but first 

he wanted to make sure the defendant did not hurt himself or anybody else. 

The defendant replied, “I ain’t hurting nobody, man. I’ve tried to hurt myself 

the whole entire—I crashed my car at 80 miles per hour, man, one time. 

Nothing fucking happened. ... I’m fed up because I’m, like, what the fuck am 

I fighting for. I just want to go with the sun and the stars. ... I’m done with 

this world, man.” 

The defendant broke down sobbing and said his baby’s mother stole his

baby and “corrupted the whole system.” He screamed, “Nothing fucking 

matters ... I’m so tired. ... What do I have to lose now?” Then, presumably 

referring to his baby’s mother, he said, “I never laid a hand on that bitch, 

man. I let her beat the living shit out of me because she’s in a female’s body.

Because I’m a gentleman. I could have fucked her up. I could have killed her 

any second, but I didn’t. I didn’t and I regret it because she wanted me to kill 

her.” At or about this time, a third sheriff’s deputy, Darryl Patmon, arrived 

on the scene and approached the defendant’s car from the passenger side. 

Deputy Paukovits said he could not assist the defendant with his child, 

but he could help the defendant if he needed it. The defendant again stated 

he could help by popping the hood of his car. Deputy Paukovits asked 

whether he had done drugs that day and the defendant said he had smoked 
7

weed eight hours earlier. While this exchange was going on, deputy 

Paukovits put on rubber gloves, anticipating he would soon detain the 

defendant for a mental health evaluation, or a “5150 hold.” 

Deputy Paukovits asked the defendant to speak with him outside the 

car and the defendant said, “No, brother. Fuck no. Please step, step back 

and help me open [the hood]—I already asked you for something.” Deputy 

Paukovits said, “I’m not going to let you shut the door. Okay? Richard, come 

on and step—take a step out. Okay?” The defendant asked, “What’s going on 

here,” and deputy Paukovits said, “I’m going to get you help.” By this point, 

deputy Paukovits had observed that the defendant had a screwdriver in his 

car’s center console and a canister of bear spray wedged between the car wall 

and the driver’s seat. 

Events unfolded quickly from there. The defendant reached down 

towards the canister of bear spray. In response, deputy Paukovits reached 

into the car and tried to pin down the defendant’s arm. The defendant 

screamed, “Oh my god, no. You won’t do this to me again,” and stood up. As 

he stood, he sprayed the canister, which released a chemical agent into the 

faces of all three deputies, burning their eyes and obscuring their vision.3

Deputy Paukovits pushed the defendant back into his car and agent 

Oakey sprayed him with oleoresin capsicum (OC) spray. However, the 

defendant was able to close the driver-side car door and climb into the 

3 The defendant disputes the sequence of events and claims deputy 

Paukovits advanced upon him before he reached for the bear spray. But, as 

we will discuss, there was substantial evidence the defendant reached 

towards the canister of bear spray first and, in fact, caused deputy Paukovits

to reach towards him. Under the governing standard of appellate review, we 

presume the jury credited and relied on this evidence.
8

backseat. At this point, the deputies believed they had probable cause to 

arrest the defendant for assaulting peace officers. 

Meanwhile, deputy Patmon ran to his patrol unit and retrieved his 

certified K-9 partner, Bono. He screamed “stop fighting” several times, 

warned he would send the dog, and commanded the defendant to put his 

hands on the ceiling. The defendant did not comply. About 30 seconds later, 

deputy Paukovits opened the rear passenger door of the defendant’s car and 

deputy Patmon deployed Bono. Bono jumped into the car and bit the 

defendant’s leg. 

As Bono was jumping into the car, the defendant pulled out a 15-inch 

blade with a sharpened edge and a serrated back end. He slashed it across 

Bono’s face, causing him to sustain a large gash near his eye and nose. 

Deputy Patmon recalled Bono while the defendant closed the rear passenger 

door and climbed back into the front seat. 

Corporal Villalobos and other members of the law enforcement team

repeatedly screamed at the defendant to drop his knife and exit the car, but 

he did not comply. Instead, he howled, asked what he did wrong, and 

screamed for water and help. Twice, he yelled at the officers to “put a bullet” 

in his head. Throughout this encounter, the defendant waived his knife 

around and the officers kept their service weapons trained on him. 

About five minutes after deputy Patmon deployed Bono, corporal 

Villalobos approached the vehicle and sprayed the defendant with more OC 

spray through an open window. He intended to disorient the defendant, but 

the spray had minimal effect. A short time later, the defendant tried to crawl 

out of the car through the driver-side door while holding a large, indiscernible

black object. Fearing for the safety of his partners, deputy Patmon shot the 
9

defendant with a beanbag shotgun and struck him in the lower part of his 

back. 

The defendant retreated back into his car and procured a pellet gun 

that resembled a lethal handgun. He yelled at the officers to shoot him and 

pointed the pellet gun at both himself and the roof of his car. He also fired 

the pellet gun two or three times into the roof. Based on the noise the gun 

produced, corporal Villalobos determined it was a pellet gun—not a lethal

firearm. He notified the other officers accordingly. 

Additional deputies arrived and trained both lethal weapons and nonlethal devices on the defendant. They repeatedly warned him to put down 

the knife and the gun, put his hands up, and exit the vehicle. The defendant 

did not comply. At that point, one of the deputies shot a beanbag shotgun at 

the defendant and struck him. 

The defendant pointed his pellet gun at a deputy, prompting the law 

enforcement team to use multiple non-lethal and less-lethal devices on him. 

One deputy fired a beanbag shotgun at him, another deputy fired a pepper 

ball gun at him, and a third deputy tased him. Deputy Patmon dragged the 

disoriented defendant out of his car through a broken window and the law 

enforcement team detained him until paramedics arrived. 

III

DISCUSSION

A. Substantial Evidence Supported the Defendant’s Convictions

The defendant challenges his convictions for resisting an executive 

officer, harming a police dog, animal cruelty, and brandishing an imitation 

firearm in a threatening manner, on grounds that there was insufficient 

evidence to support the convictions. We reject the defendant’s sufficiency-of-
10

the-evidence challenges and conclude ample evidence supported each 

conviction.

1. Standard of Review

We apply the substantial evidence standard of review to assess the 

sufficiency of the evidence supporting a criminal conviction. (People v. 

Penunuri (2018) 5 Cal.5th 126, 142.) “ ‘[W]e review the whole record to 

determine whether any rational trier of fact could have found the essential 

elements of the crime ... beyond a reasonable doubt. [Citation.] The record 

must disclose substantial evidence to support the verdict—i.e., evidence that 

is reasonable, credible, and of solid value—such that a reasonable trier of fact 

could find the defendant guilty beyond a reasonable doubt. [Citation.] In 

applying this test, we review the evidence in the light most favorable to the 

prosecution and presume in support of the judgment the existence of every 

fact the jury could reasonably have deduced from the evidence. [Citation.] 

“Conflicts and even testimony [that] is subject to justifiable suspicion do not 

justify the reversal of a judgment, for it is the exclusive province of the trial 

judge or jury to determine the credibility of a witness and the truth or falsity 

of the facts upon which a determination depends. [Citation.] We resolve 

neither credibility issues nor evidentiary conflicts; we look for substantial 

evidence. [Citation.]” [Citation.] A reversal for insufficient evidence “is 

unwarranted unless it appears ‘that upon no hypothesis whatever is there 

sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (Ibid.)

2. Substantial Evidence Supported the Defendant’s Convictions for 

Resisting an Executive Officer (Counts 2–4)

The defendant was convicted of three counts of resisting an executive 

officer in violation of section 69, subdivision (a), for spraying deputy 

Paukovits, corporal Villalobos, and deputy Patmon with bear spray. 
11

Section 69, subdivision (a) provides, in relevant part, that “[e]very 

person ... who knowingly resists, by the use of force or violence, [an 

executive] officer, in the performance of his or her duty, is punishable by a 

fine ... or by imprisonment ... or by both such fine and imprisonment.”4 An 

essential element of the offense of resisting an executive officer is that the 

officer was lawfully engaged in the performance of his or her duties at the 

time of the defendant’s resistance. (People v. Murillo (2021) 71 Cal.App.5th 

1019, 1022–1023; People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1418.)

The defendant contends there was insufficient evidence to prove the

officers were lawfully engaged in the performance of their duties when he 

resisted them—i.e., when he sprayed them with bear spray. He argues they 

did not act lawfully because they did not provide him with an advisement 

that must be given whenever an officer conducts an involuntary detention

under Welfare and Institutions Code section 5150. 

Welfare and Institutions Code section 5150 “allows law enforcement 

officers and various medical professionals to bring an individual to an 

appropriate facility for assessment, evaluation, and treatment for up to 

72 hours where there is ‘ “probable cause to believe that the person is, as a 

result of mental disorder, a danger to others, or to himself or herself, or 

gravely disabled.” ’ ” (Julian v. Mission Community Hospital (2017) 11 

Cal.App.5th 360, 375.) It requires the officer or medical professional to give

an oral advisement to the person “at the time he or she is first taken into 

custody.” (Welf. & Inst. Code, § 5150, subd. (g)(1).) The advisement must 

include, in substantial form, the following information: (1) the name of the 

4 A defendant can violate section 69, subdivision (a), in another way—by 

“attempting by threats or violence to deter or prevent an officer from 

performing a duty imposed by law.” (In re Manuel G. (1997) 16 Cal.4th 805, 

814.) However, the jury was not instructed on this theory of liability. 
12

officer or medical professional and the agency with which he or she is 

associated; (2) the fact the person is “not under criminal arrest,” but is being 

taken for an examination by mental health professionals; (3) the name of the 

facility where the examination will be conducted; and (4) the fact the person 

“will be told [his or her] rights by the mental health staff.” (Ibid.)

It is undisputed the law enforcement officers in this case did not 

provide the defendant with an oral advisement substantially in the form set 

forth in Welfare and Institutions Code section 5150. Nonetheless, contrary to 

the defendant’s claim, the officers’ failure to give the oral advisement did not 

render their conduct unlawful. Critically, an oral advisement is only required 

“at the time [a person] is first taken into custody.” (Welf. & Inst. Code, 

§ 5150, subd. (g)(1), italics added.) Here, there was substantial evidence from 

which a rational jury could find that the defendant was not yet in custody at 

the time he reached for the canister of bear spray; therefore, the officers’ duty 

to provide the defendant with an oral advisement had not yet arisen.

“Whether a person is in custody is an objective test; the pertinent 

question being whether the person was formally arrested or subject to a 

restraint on freedom of movement of the degree associated with a formal 

arrest.” (People v. Linton (2013) 56 Cal.4th 1146, 1167 [defining custody in 

the context of warnings required by Miranda v. Arizona (1966) 384 U.S. 436]; 

see California v. Beheler (1983) 463 U.S. 1121, 1125 [“the ultimate inquiry is 

simply whether there is a ‘formal arrest or restraint on freedom of movement’

of the degree associated with a formal arrest”].) “ ‘[C]ustody must be 

determined based on how a reasonable person in the [defendant’s] situation 

would perceive his circumstances.’ ” (Linton, at p. 1167.)

At the time the defendant reached for the canister of bear spray, he

was seated in his own vehicle—not in a law enforcement vehicle, jail, or 
13

prison. He was not handcuffed or subject to physical restraint. None of the 

officers had informed him that he was under arrest. Nor had they even 

notified him that they intended to detain him in a mental health facility. 

Although deputy Paukovits had put on his gloves and tried to coax the 

defendant out of the car voluntarily in anticipation that he might soon detain 

the defendant for a mental health evaluation, neither he nor the other 

officers had effectuated that plan by the time the defendant reached towards 

the canister of bear spray, which he then used to spray the officers in the 

face. From this evidence, a rational jury could find that the defendant was 

not yet subject to a formal arrest or an analogous restraint on his freedom of 

movement. Thus, a rational jury could find that he was not in custody.

In his appellate briefs, the defendant argues the officers took him into

custody, or at minimum were “in the process” of taking him into custody, by 

the time he reached for the canister of bear spray. He claims deputy 

Paukovits lunged towards him and tried to seize him before he reached for 

the bear spray—actions that, in the defendant’s view, placed him in custody. 

However, at trial, deputy Paukovits testified he only reached into the 

defendant’s car “when [the defendant] was grabbing for the bear spray,” and 

he responded affirmatively when he was asked whether the defendant’s act of 

grabbing for the bear spray was the reason he reached into the car. Deputy 

Paukovits added, “When I told [the defendant] I wanted to get him some help, 

he started reaching down to manipulate [the canister] and that’s when I went 

into the car.” Footage of the incident recorded on deputy Paukovits’ body 

worn camera was played for the jury as well. Under the applicable standard 

of appellate review, we evaluate the evidence in the light most favorable to 

the judgment and presume in support of the judgment the existence of every 

fact the jury could reasonably have deduced. Based on deputy Paukovits’ 
14

testimony, as well as the body worn camera footage, a jury could reasonably 

find the defendant reached for the bear spray first, thus triggering the

regrettable chain of events that followed.

The defendant also claims the law enforcement officers were not 

lawfully engaged in the performance of their duties because they employed 

excessive force against him before he reached for the bear spray. (People v. 

Sibrian (2016) 3 Cal.App.5th 127, 133 [“An officer using excessive force is not 

acting lawfully.”].) According to the defendant, the officers “physically 

seiz[ed] [him] and dragg[ed] him from the car” before he reached for the

canister. However, as just discussed, substantial evidence disproves the

defendant’s proffered chronology of events. In other words, substantial 

evidence proved the defendant reached for the bear spray first.

Further, the appellate record does not show that the officers exerted 

excessive force in any other way. “The use of excessive force by law 

enforcement officers is analyzed under the Fourth Amendment’s objective 

reasonableness requirement for a seizure of the person.” (People v. Brown

(2016) 245 Cal.App.4th 140, 158, citing Graham v. Connor (1989) 490 U.S. 

386.) “Under Graham, ... the question .. is whether the amount of force the 

officers used in making the arrest was objectively unreasonable given the 

circumstances they faced.” (Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 

755, 763.) Careful attention must be paid “to the facts and circumstances of 

each particular case, including the severity of the crime at issue, whether the 

suspect poses an immediate threat to the safety of the officers or others, and 

whether he is actively resisting arrest or attempting to evade arrest by 

flight.” (Graham, at p. 396.) “The ‘reasonableness’ of a particular use of force 

must be judged from the perspective of a reasonable officer on the scene, 

rather than with the 20/20 vision of hindsight.” (Ibid.)
15

It is undisputed deputy Paukovits grabbed and tried to pin down the 

defendant’s arm. Viewing the evidence in the light most favorable to the 

judgment, we conclude his conduct was reasonable. The defendant had prior

charges for domestic violence and resisting an executive officer. Body worn 

camera footage showed him acting in a manic, unpredictable, and noncompliant manner. It depicted him making suicidal and violent statements—

including statements he “need[ed] a bullet between [his] eyes,” he had 

“nothing to live for,” he was “done with this world,” and he regretted not 

killing his baby’s mother. Moreover, as just discussed, deputy Paukovits 

testified he grabbed the defendant’s arm only after the defendant reached for

a weapon—i.e., the canister of bear spray. All of this evidence suggested the 

defendant posed a substantial and immediate danger of bodily harm to 

himself and the law enforcement team. Given these facts and circumstances, 

a reasonable jury could find deputy Paukovits’s conduct was a reasonable

exertion of force intended to ensure the safety of himself and others.

3. Substantial Evidence Supported the Defendant’s Misdemeanor 

Conviction for Harming a Police Animal (Count 8)

The defendant was convicted of harming a police dog in violation of 

section 600, subdivision (a), for slashing Bono the K-9 unit with a knife. 

Section 600, subdivision (a), provides in relevant part, “Any person who 

willfully and maliciously and with no legal justification ... cuts[] [or] stabs[]

... a dog under the supervision of[] a peace officer in the discharge or 

attempted discharge of his or her duties[] ... is guilty of a public offense.”

The defendant argues there was insufficient evidence to support his 

conviction for harming a police dog because deputy Patmon was not lawfully 

discharging his duties at the time he slashed Bono. He asserts deputy 

Patmon used excessive force by deploying Bono and commanding him to bite. 

We are not persuaded. 
16

As just discussed, the defendant exhibited manic behaviors and made 

violent and suicidal statements throughout his encounter with the law 

enforcement team, including while deputy Patmon was present. Then, he

assaulted three members of the sheriff’s department with a dangerous 

chemical agent, which—in the words of deputy Paukovits—“burn[ed] and 

pretty much ... weld[ed]” the officers’ eyes shut. In the aftermath of this

assault, deputy Patmon warned the defendant several times to stop fighting, 

instructed him to put his hands up on the car ceiling, announced he had a 

“sheriff’s department canine,” and cautioned he would “send the dog.” The 

defendant did not comply with these warnings or submit to arrest.

Under these circumstances, a rational jury could find deputy Patmon’s 

deployment of Bono was reasonable. As deputy Patmon testified, he deployed 

Bono because the defendant had just assaulted three members of the law

enforcement team and he was not complying with commands. Thus, he posed 

an ongoing threat to the safety of the law enforcement team, as well as 

passing motorists. Further, as deputy Patmon explained, there was a 

possibility the defendant could “drive away” and try to escape.5 According to 

deputy Patmon, they therefore needed a “less lethal option” to “get him out of 

the car” and submit to arrest; hence, he deployed Bono. In light of the 

defendant’s violent and assaultive behavior, his non-compliance, his risk of 

flight, and the continuing threat of harm he posed, a rational jury could find 

5 The defendant argues he presented no flight risk because he told the 

deputies his car was broken down. However, at the time of the incident, a

reasonable officer could have disbelieved the defendant, who had made 

numerous fantastical and nonsensical statements during his encounter with 

law enforcement. Further, the defendant was stationed inside the car 

throughout the encounter, which prevented the deputies from independently 

verifying that his car was in fact non-operational.
17

deputy Patmon’s deployment of Bono was not excessive. Therefore, it could 

find he acted reasonably and lawfully in the discharge of his duties.

Next, the defendant claims substantial evidence did not prove he acted 

without legal justification—one of the requirements to sustain a conviction 

under section 600, subdivision (a). He argues he engaged in lawful selfdefense by slashing Bono with a knife, and substantial evidence did not show 

otherwise. Once again, we disagree.

A rational jury could find the defendant was the initial aggressor when

he preemptively reached for the canister of bear spray, which he then used to

debilitate three officers. Further, as noted, a rational jury could find the 

officers exerted reasonable force. Because a jury could reach both of these 

findings, it could likewise find the defendant did not act in lawful self-defense 

when he slashed Bono instead of submitting to arrest. (In re Christian S. 

(1994) 7 Cal.4th 768, 773, fn. 1 (Christian S.) [“It is well established that the 

ordinary self-defense doctrine—applicable when a defendant reasonably

believes that his safety is endangered—may not be invoked by a defendant 

who, through his own wrongful conduct (e.g., the initiation of a physical 

assault or the commission of a felony), has created circumstances under 

which his adversary’s attack or pursuit is legally justified.”]; § 834a [“If a 

person has knowledge, or by the exercise of reasonable care, should have 

knowledge, that he is being arrested by a peace officer, it is the duty of such 

person to refrain from using force or any weapon to resist such arrest.”].)

Finally, the defendant argues the conviction must be reversed because 

substantial evidence did not prove he acted “maliciously.” For purposes of 

section 600, subdivision (a), a defendant acts “maliciously” when he or she 

harbors “ ‘an intent to do a wrongful act.’ ” (People v. Adams (2004) 124 

Cal.App.4th 1486, 1494 (Adams); see also id. at pp. 1493–1494 [noting “the 
18

term ‘maliciously’ as used in section 600, subdivision (a), does not have a 

technical meaning different from its common meaning,” and defining 

“ ‘[m]alice’ ... in non-legal settings as the ‘desire to cause pain, injury, or 

distress to another’ or the ‘intent to commit an unlawful act or cause harm 

without legal justification or excuse’ ”].) 

As noted, there was substantial evidence from which a rational jury 

could find the defendant was the initial aggressor, the members of the law 

enforcement team used reasonable force, and the defendant did not act in 

lawful self-defense. Thus, a rational jury could find the defendant harbored 

an intent to do a wrongful act when he slashed Bono with a knife.

4. Substantial Evidence Supported the Defendant’s Animal Cruelty 

Conviction (Count 5)

The jury also found the defendant guilty of animal cruelty in violation 

of section 597, subdivision (a), for slashing Bono with a knife. Section 597, 

subdivision (a) proscribes animal cruelty in the following terms: “Except as 

[otherwise] provided ... every person who maliciously and intentionally 

maims, mutilates, tortures, or wounds a living animal, or maliciously and 

intentionally kills an animal, is guilty of a crime.”

The defendant claims there was insufficient evidence to support his 

animal cruelty conviction because substantial evidence did not prove he acted 

maliciously. Like the word “maliciously” in section 600, subdivision (a), the 

word “maliciously” in section 597, subdivision (a), means an intent to do a 

wrongful act. (People v. Dunn (1974) 39 Cal.App.3d 418, 420–421; see 

Adams, supra, 124 Cal.App.4th at p. 1494, fn. 7.)

In our discussion of the sufficiency of the evidence underpinning the 

harming a police dog conviction, we concluded there was substantial evidence 

to support a finding that the defendant acted maliciously when he slashed 

Bono with a knife. That conclusion applies equally here. Because there was 
19

substantial evidence the defendant acted maliciously, his sufficiency-of-theevidence challenge fails with respect to the animal cruelty conviction.

5. Substantial Evidence Supported the Defendant’s Conviction for 

Brandishing an Imitation Firearm (Count 7)

The defendant was found guilty of one misdemeanor count of 

brandishing an imitation firearm in a threatening manner in violation of 

section 417.4. Section 417.4 provides, “Every person who, except in selfdefense, draws or exhibits an imitation firearm ... in a threatening manner 

against another in such a way as to cause a reasonable person apprehension 

or fear of bodily harm is guilty of a misdemeanor punishable by 

imprisonment in a county jail for a term of not less than 30 days.”

The defendant argues the brandishing conviction must be reversed 

because there was insufficient evidence to establish that he was not acting in 

self-defense when he exhibited the pellet gun. This argument is without 

merit as well. 

As we have previously discussed, there was substantial evidence in the 

record from which a rational jury could find that the defendant was the 

initial aggressor and, furthermore, that the law enforcement team used 

reasonable force in response to the defendant’s aggression—both when 

deputy Paukovits grabbed the defendant’s arm and when deputy Patmon 

deployed Bono. On this basis, there was substantial evidence from which a 

jury could find the defendant did not act in lawful self-defense when he 

brandished his pellet gun. (Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)

Additionally, substantial evidence supported a finding that the 

defendant did not reasonably believe he must resort to an immediate use of 

force to defend himself against an imminent danger of bodily injury. (People 

v. Clark (2011) 201 Cal.App.4th 235, 250 (Clark).) Before the defendant 

brandished his pellet gun, the officers told him—over and over again—they 
20

were there to help. Time and again, they told him to exit his car and drop his 

knife. At one point, an officer said, “Nobody wants to shoot you, Richard. We 

just need to get you some help.” Soon after, the defendant begged the officers 

to “put a bullet in [his] head,” and two of the officers unequivocally 

responded, “No.” One officer added, “Nobody wants to do that.” 

We are mindful the defendant pulled the pellet gun out while he and 

the law enforcement team were engaged in a highly-charged standoff, one in 

which the defendant had already suffered injuries. But the law enforcement 

team’s statements reflect a concerted effort to diffuse the tense situation. 

The officers repeatedly conveyed they did not wish to “put a bullet” in the 

defendant, and they announced the steps he should take to surrender.

Viewing this evidence in the light most favorable to the judgment, we 

conclude a jury could rationally find that the defendant did not reasonably 

believe an immediate use of force was necessary to defend himself against an 

imminent danger of serious bodily injury. Because a rational jury could 

reach this conclusion, it could likewise reach a finding that the defendant did 

not act in lawful self-defense when he brandished his pellet gun.

B. The Defendant has not Established Prejudicial Instructional Error

Next, the defendant claims the trial court had a duty to instruct the 

jury, sua sponte, on the affirmative defense of self-defense for each charge. 

A trial court must instruct the jury, sua sponte, on defenses relied on 

by the defense or defenses that are supported by substantial evidence and not 

inconsistent with the defense’s theory of the case. (People v. Rangel (2016) 62 

Cal.4th 1192, 1224.) “Substantial evidence supporting sua sponte instruction 

on a particular defense is evidence that is ‘sufficient to “deserve consideration 

by the jury, i.e., ‘evidence from which a jury composed of reasonable [persons] 

could have concluded’ ” ’ that the particular facts underlying the instruction 

did exist.” (People v. Brooks (2017) 3 Cal.5th 1, 75.) 
21

The trial court committed no instructional error with respect to count 7 

(brandishing an imitation firearm) or count 8 (harming a police dog), because 

it gave a standalone self-defense instruction for both counts. It instructed the 

jury with CALCRIM No. 3470, which provided, “Self-defense is a defense to 

Counts 7 and 8. The defendant is not guilty of those crimes if he used force 

against the other person in lawful self-defense.” The instruction then 

identified the requirements for lawful self-defense and stated, “The People 

have the burden of proving beyond a reasonable doubt that the defendant did 

not act in lawful self-defense in Counts 7 and 8. If the People have not met 

this burden, you must find the defendant not guilty of those crimes.”6 Given 

the court’s self-defense instruction, the defendant’s instructional error 

argument fails for both of these counts.7

For the remaining counts, we do not decide whether there was

instructional error because the asserted error was harmless under any 

standard of prejudice. With respect to counts 2–4 (resisting an executive 

officer), the court instructed the jury with CALCRIM No. 2670, which stated, 

“The People have the burden of proving beyond a reasonable doubt that [the 

deputies] were lawfully performing their duties as a peace officer when the 

6 Additionally, for count 7, the court gave CALCRIM No. 985, which 

stated, “To prove that the defendant is guilty of this crime, the People must 

prove that ... [¶] ... [¶] ... When the defendant drew or exhibited the imitation 

firearm, he was not acting in self-defense.” And, for count 8, it instructed the 

jury that “[t]he People must prove beyond a reasonable doubt that the peace 

officer was lawfully performing their duty and that the defendant was not 

acting in lawful self-defense at the time the defendant acted.” 

7 To the extent the defendant argues the self-defense instruction was 

incomplete or in need of clarification, the defendant forfeited his argument by

failing to request any additional or clarifying language in the trial court. 

(See People v. Covarrubias (2016) 1 Cal.5th 838, 876–877.)
22

defendant acted. ... [¶] A peace officer is not lawfully performing his or her 

duties if he or she is unlawfully arresting or detaining someone or using 

unreasonable or excessive force when making or attempting to make an 

otherwise lawful arrest or detention. [¶] ... [¶] If a peace officer uses 

unreasonable or excessive force while arresting or attempting to arrest or 

detaining or attempting to detain a person, that person may lawfully use 

reasonable force to defend himself or herself.” 

When the jury convicted the defendant of all three counts of resisting 

an executive officer, it necessarily found the officers were lawfully performing

their duties when the defendant resisted them and, further, the defendant 

did not use reasonable force to defend himself against excessive or 

unreasonable force. Given these findings, the court’s asserted failure to 

provide a self-defense instruction was harmless error, to the extent it was 

error at all. (People v. Vallejo (2013) 214 Cal.App.4th 1033, 1039 [alleged 

error in failing to provide transferred self-defense instruction was harmless

because the jury’s verdicts showed it “necessarily rejected the theory that 

appellant had inadvertently shot [the victim] in self-defense”].)

The jury’s verdicts also foreclose a finding of prejudice in connection 

with the claim of instructional error for count 5. As noted, the trial court 

provided a self-defense instruction for count 8 (harming a police dog), and the 

jury found the defendant guilty of the charged crime. When the jury

convicted the defendant of count 8, it necessarily found that the officers 

lawfully performed their duties while deploying Bono, and it also rejected the 

defendant’s claim that he acted in self-defense by slashing Bono with a knife. 

As we will discuss below, the jury convicted the defendant of count 5 (animal 

cruelty) for the same conduct giving rise to count 8. Given that the jury 

decided the defendant did not act in lawful self-defense when he slashed 
23

Bono, the defendant suffered no prejudice from the court’s asserted failure to 

provide a self-defense instruction for count 5. (Clark, supra, 201 Cal.App.4th 

at p. 251 [where self-defense instruction was provided for one charge and a 

second charge was based on the same conduct, the alleged failure to provide 

self-defense instruction for second charge was harmless error].)

Finally, the alleged instructional error was harmless in connection with 

count 1 (exhibiting a deadly weapon to an officer to resist arrest). The 

defendant claims there was substantial evidence to support a sua sponte selfdefense instruction for count 1 because he exhibited his knife in response to 

two examples of excessive force—(1) the deputies’ alleged efforts to seize him

at the beginning of the scuffle; and (2) deputy Patmon’s deployment of Bono. 

However, as just noted, the guilty verdicts on counts 2–4 showed that 

the jury necessarily rejected the defendant’s argument that the deputy 

sheriffs exerted excessive and unreasonable force when they allegedly tried to 

seize him from his car. Likewise, the guilty verdict on count 8 meant the jury

rejected the defendant’s assertion that deputy Patmon exerted excessive force 

by deploying Bono. Because these verdicts show that the jury rejected both of 

the defendant’s claims of excessive force, it surely would have rejected his 

self-defense argument in connection with count 1 as well.

C. The Court Erred by Imposing Multiple Punishments for a Single Act

The jury found the defendant guilty of animal cruelty (count 5) and 

harming a police dog (count 8). For the animal cruelty conviction, the court 

sentenced the defendant to the mid-term of two years in prison, plus one year 

consecutive and one year concurrent for the attached weapons 
24

enhancements.8 For the harming a police dog misdemeanor conviction, the 

court sentenced him to 364 days with credit for time served. 

The defendant asserts the court violated section 654 when it imposed 

these sentences because it subjected him to multiple punishments for a single 

act—that is, his single act of slashing Bono with a knife. At the time the 

defendant was sentenced, section 654 provided in relevant part, “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.” (Former § 654, subd. (a).) 

The People describe this as a “close issue.” However, they ultimately 

concede “both crimes were completed by a single physical act toward a single 

victim (i.e., the first use of the knife against Bono the dog).” We accept the 

People’s well-taken concession. In accordance with the laws in effect at the 

time, the trial court should have imposed the sentence for the conviction 

carrying the longest potential term of imprisonment (the animal cruelty 

conviction) and stayed execution of sentence for the other conviction (the 

conviction for harming a police dog). (People v. Reed (2006) 38 Cal.4th 1224, 

1227 [“When ... section 654 prohibits multiple punishment, the trial court 

must stay execution of sentence on the convictions for which multiple 

punishment is prohibited.”].) By failing to do so, the court erred.

After the defendant was sentenced, the Legislature enacted Assembly 

Bill No. 518, which amended Penal Code section 654, effective January 1, 

2022. In relevant part, section 654 now states: “An act or omission that is 

punishable in different ways by different provisions of law may be punished 

8 The court struck the on-bail enhancement for sentencing purposes for 

all of the counts to which it applied, including the animal cruelty conviction. 
25

under either of such provisions, but in no case shall the act or omission be 

punished under more than one provision.” (§ 654, subd. (a).) “Previously, 

where ... section 654 applied, the sentencing court was required to impose the 

sentence that ‘provides for the longest potential term of imprisonment’ and 

stay execution of the other term. [Citation.] As amended by Assembly Bill 

[No.] 518 ... section 654 now provides the trial court with discretion to impose 

and execute the sentence of either term, which could result in the trial court 

imposing and executing the shorter sentence rather than the longer 

sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379 (Mani).)

We asked the parties to submit supplemental letter briefs concerning 

whether Assembly Bill No. 518 applies to the defendant’s case. They filed

briefs agreeing Assembly Bill No. 518 applies retroactively to the defendant’s 

case because his judgment is not final and the legislation constituted an 

ameliorative change to the criminal law. We agree with the parties and 

conclude Assembly Bill No. 518 applies retroactively to the defendant’s case. 

(People v. Jones (2022) 79 Cal.App.5th 37, 46 (Jones) [Assembly Bill No. 518 

was an ameliorative change to the law that applies retroactively to nonfinal 

judgments]; Mani, supra, 74 Cal.App.5th at p. 379 [same].)

Although the People concede Assembly Bill No. 518 applies 

retroactively to the defendant’s case, they argue it would be “futile” to 

remand the matter for resentencing. According to the People, there is “no 

possibility” the trial court would exercise its discretion under section 654 and 

reduce the defendant’s sentence, given that it ostensibly could have imposed 

a lower sentence when it initially sentenced the defendant—for example, by 

selecting the lower term for convictions, running terms concurrently, or 

dismissing weapons enhancements altogether—yet it did not do so. 
26

“Defendants are entitled to sentencing decisions made in the exercise of 

the ‘informed discretion’ of the sentencing court. [Citations.] A court which 

is unaware of the scope of its discretionary powers can no more exercise that 

‘informed discretion’ than one whose sentence is or may have been based on 

misinformation regarding a material aspect of a defendant’s record.” (People 

v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) In such circumstances, the 

appropriate remedy is to remand for resentencing unless the record “clearly 

indicate[s]” that the trial court would have reached the same conclusion “even 

if it had been aware that it had such discretion.” (Ibid.; see also People v. 

Gutierrez (2014) 58 Cal.4th 1354, 1391.)

Here, the record does not clearly indicate the trial court would impose 

the same sentence if it knew it had discretion to impose a lower one. When 

the court sentenced the defendant, it did not impose the maximum sentence 

or make statements suggesting the defendant should be incarcerated for the 

longest possible term. The court did not accept the recommendations of the 

probation department or the district attorney to impose a nine-year prison 

term, instead opting to impose a more lenient sentence of six years. Further, 

when the court imposed the middle term for count 5, rather than the upper 

term recommended by the probation department and the district attorney, it 

opined, “the injuries were not egregious to the animal.” For all these reasons, 

we cannot say it would be a futile or idle act to remand the matter for 

resentencing.

We offer no opinion on how the trial court should exercise its discretion

under section 654 during the resentencing proceeding. However, we note 

that the court, during resentencing, may reconsider any other components of 

the aggregate sentence in light of changed circumstances. (Jones, supra, 79 

Cal.App.5th at p. 46; see also People v. Buycks (2018) 5 Cal.5th 857, 893.)
27

D. The Parties May Present their Arguments Concerning the Restitution 

Fine and the Stayed Parole Revocation Restitution Fine on Remand

The trial court imposed a $10,000 restitution fine on the defendant 

under section 1202.4, subdivision (b), and it imposed, but stayed, a $10,000 

parole revocation restitution fine under section 1202.45.

The defendant claims he lacks the ability to pay these fines. Based 

largely on his alleged inability to pay, the defendant argues the court’s 

imposition of the fines violates the excessive fines clauses of the federal and 

state constitutions (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17), 

impinges upon his due process rights under the federal and state 

constitutions (U.S. Const., 14th Amend.; Cal. Const., art. 1, § 7), and 

constitutes an abuse of discretion under state law (§ 1202.4, subd. (d)). 

Because we are vacating the sentence and remanding the matter for 

resentencing purposes, we do not address the defendant’s contentions

concerning the fines at issue. The parties may present their arguments 

concerning the fines to the trial court on remand.

IV

DISPOSITION

The sentence is vacated and the matter is remanded for the trial court 

to resentence the defendant. In all other respects, the judgment is affirmed.

McCONNELL, P. J.

WE CONCUR:

HUFFMAN, J.

DATO, J.