Filed 9/24/20 P. v. Roachford CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

BRIAN ANTHO NY ROACHFORD,

Defendant and Appellant. B2993 60

Los Angeles County Super. Ct. No. MA075272

APPEAL from a judgment of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Affirmed.

G. Martin Velez, under appointment by the Court
of A ppeal, for Defendant and Appellant.

Xavier Becerra, Attorney General

, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorney s General for Plaintiff

an d Respondent.

_________________________2 A jury convicted Brian Anthony Roachford of resisting two
executive officer s, attempting to take a law enforcement vehicle,
and vandali sm. He appeals, and we affirm.
BACKGROUND
An amended infor mation charged Roach ford with two counts of resisting an executive officer (Pen

. Code, § 69) 1 (counts 2 and 4) , one count of attempted taking of a law enforcement vehicle (Veh. Code, §§ 664 & 10851, subd. (b)(2)) (count 3) , and one count of vandalism over $400 (§ 594, subd. ( a)) (count 5) . The information alleged Roachford ser ved three prior prison terms and had two pr ior serious felony convictions. The trial centered on events on the morning of December 7, 2018. Wendy Peterson testified she was driving her minivan

to work on the 14 Freeway north in Lancaster when she saw a white sedan stopped in the middle of the freeway

. Roachford and

ano ther man stood next to a truck stopped on the right shoulder.
Roachford walked onto the freeway toward the white sedan, and
Peterson an d all the other drivers on the freeway stopped their cars to avoid hitting him . Worried about Roachford’s safety,
Peterson called 911 . Roachford tried to open the back driver’s
side door on the sedan . T he car drove off with Roachford hanging
onto the do or handle , and dragged him a short distance until
he let go and fell onto the freeway. Injured, he walked toward
Peterson’s minivan.
As Peterson talked to the 911 operator, Roachford pounded on her window, looking scared and unwell and saying he needed
h elp . He tried to open all the minivan’s doors, slamming his body
into the sides of the minivan

. Roachford climbed on top of the

1 Unless otherwise indicated, all subsequent statutory references are to the Penal Code.3

minivan , and then slid down the win dshield onto the hood and walked away , taking off his shirt. As traff ic began to move past
him , he returned and again begged Peterson for help, banged

on her window

, tried to open all the doors , and climbed back

on top of the minivan

. Peterson saw a black and white police car driving
southbound

. Roachford got off the top of the minivan , hoppe d over the center divider, and wandered into slowing traffic on the southbound lanes. A car’s side mirror hit his arm. The police car pulled into the freeway median and uniformed deputies got out of the car

. Roachford walked toward them and they tried t o handcuff him, but a fter a brief struggle, Roachford ran away

. One of the officers tased him, he fell to the ground , and the police
tied his hands and his feet

. Peterson’s minivan was dented, scratched, and smeared
with blood. Repair of the damage cost over $ 3,500 , and Peterson paid a $500 deductible

. Sheriff’s Deputy Russell Williams d rove to the scene with his partner Deputy Ulise Ruiz in response to a radio call , with the car’s lights and sirens on

. Deputy Williams saw Roachford walking against tra ffic in the southbound lane of the freeway

. Dodging other vehicles, he parked the car facing southbound
in front of Roachford. Roachford , who was very sweaty although
it was cold and he wore a ta nk top , was staring blankly into
the distance. He complied with a command to put his hands on
the driver’s side fender of the police car . Deputy Williams was on his right side and Deputy Ruiz was on his left. Deputy Williams
reache d for Roachford’s right arm and told him to put his hands behind his back, but “[ h]e was so sweaty and covered in blood
it wa s like grabbing a wet noodle.” Deputy Ruiz reached for4

Roachford ’ s left wrist, but was unable to keep his grasp as Roachford fought to break free, flailing his arms side to side and moving his body back and fort h. Deputy Williams told Roachford to stop fighting and made more than five failed attempts to get Roachford’s arms behind his back, but Roachford resisted, tightening hi s muscles a nd becoming very rigid . He screamed

, “I need to get out of here,” turned t o the right

, and threw an elbow at Deputy Williams’s face

. Deputy Williams jumped back. Roachford lunged to the driver’s door and grabbed the handle, yelling

, “I’m going to take your car.” He opened the door

one to three feet

, pushing Deputy Williams in to the side of the
car and breaking the side mirror . The sheriff’s car was running with the keys in the ignition and all the deputies’ gear inside , and Deputy Williams was afraid Roachford would drive off. Deputy Williams lunged forward and managed to sh ut the door with both hands, but Roachford opened the door again. Deputy Williams grabbed Roachford’s right arm with both hands and pulled
him away from the door. He lost his grip and Roachford ran
southbound toward moving traffic while the deputies told him

to stop running. Deputy Ruiz pulled out his taser and tased
R oachford, who fell onto his stomach three or four feet away

. After five seconds Roachford began to kick and yell,
and Deputy Ruiz warned he would tase him again if he kept struggling. T he deputies got on top of Roachford and struggled

to handcuff him as he kicked, thrashed his body side to side, and tried to stand up . Roachford yelled he had insects in his anus and his mouth and he needed to get them out, reaching inside the back of his pa nts

. After about five minutes, additional deputies arrived, and they managed to restrain Roachford , handcuff him,
and hobble his legs together. Eventually they took the hobble off5

and he was able to walk to a gurney. Paramedics took him to
the hospital

, where he was medically cleared

. Based on their training and experience, the deputies thought Roachford was under the influence of PCP , although they
did not know whether his blood or urine was tested . PCP could cause hallucinations and paranoia, rigid m uscles, elevated body temperature, aggression, and agitat ion. The parties stipulated that Roachford was on par ole on
the day of the incident. The jury convicted Roachford on all counts . On count 3 (attempted driving or taking of a law enforcement vehicl e without consent), the jury found true that in committing the offense, Roachford attempted to take or drive a Los Angeles County Sheriff’s Department Patrol Vehicle

. The trial court found true that Roachford had two prior serious felony convictions and

t hree prior prison terms . The court sentenced him to six years
in state prison on count 2 (resisting an executive officer /Deputy
Williams ), doubling the upper term of three years under the Three Strikes law. The court stayed the sentences on the other

cou nts under section 654, and struck the prior prison term
enhancements.
DISCUSSION Roachford arg ues the trial court erred when it instructed the jury that his defense of voluntary intoxication did not apply to the counts of resisting an executive officer. The jury instructions on counts 2 and 4 (resisting executive
officers Williams and Ruiz in the performance of their duty, § 69 ) told the jury the prosecution had to prove Roachford used force to resist the executive officer, the officer was performing his duties,6

and when Roachford acted, he knew the executive off icer was performing his duties. The instructions on count 3 (attempted unlawful taking
of the patrol car , Veh. Code, § 10851, subds. (a) and (b) ) required the prosecution to prove Roachford attemp ted to take a vehicle (the patrol car) without the owner’s consent, and “intended to deprive the owner of possession or ownership of the vehicle for

any period of time.” The instruction continued: “If you find the defendant guilty of unlawfully taking or driving a vehicle, you must then decide whether the People have proved the additional allegation that the defendant took or drove an emergency vehicle on call. To prove this allegation, the People must prove that:
1. The vehicle was a distinctively mark ed law enforcement
vehicle ; 2. T he vehicle was on an emergency call when it was
taken ; AND 3. The defendant knew that the vehicle was on

an emergency call.” (See Veh. Code, § 10851, subd. (b)(2).)
The court instructed the jury it could consider evidence of Roachford’s voluntary intoxication “only in deciding whether the defendant acted with the specific intent required in Count 3. . .

. In connection with the crime charged in count 3, the People
have the burden of proving beyond a reasonable doubt that t he defendant acted with the required specific intent. If the people have not met this burden, you must find the defendant not guilty of count 3. You may not consider evidence of voluntary intoxication for any other purpose. Voluntary intoxication is

not a defense to the crimes charged in counts 2, 4, and 5.” In closing, the prosecutor argued Roachford himself stated he was going to take the patrol car. The additional allegation
in count 3 was proven by photographic evidence the patrol car
was distincti vely marked, the deputies testified they were on7

an emergency call, and the car’s lights and sirens were on

,

so Roachford knew the car was responding to an emergency.
V oluntary intoxication was a defense t o this count only , and
for the defense to be valid , “he had to have been so high that
he didn’t understand what was happening so much so that
he couldn’t form the intent to try to take the vehicle.” To the contrary, Roachford told the deputies he was going to take
their car. The defense argued Roachford did not know what
he was doing that day because he was under the influence, perhaps of PCP. Roachford argues the court w as required to instruct the jury that voluntary intoxication was also a valid defense to the two counts alleging a violation of sectio n 69. Although trial
counsel did not object to the voluntary intoxication instruction

as given, we must address the merits of a claim of instructional

error affecting substantial rights. ( People v. Bedolla (2018) 28 Cal.App.5th 535, 544.) As we conclude the claim has no merit,

we do not address Roachford’s argument that failure to object
was ineffective assistance of counsel. Section 29.4 provides: “(a) No act committed by a person while in a state of voluntary intoxication is less criminal by

reason o f his or her having been in that condition. Evidence
of voluntary intoxication shall not be admitted to negate the capacity to form any mental states for the crimes charged, including, but not limited to, . . . [the] knowledge . . . with
which the accused committed the act. (b) Evidence of voluntary intoxication is admissible solely on the issue of whether or not the defendant actually formed a required specific intent . . . .” ( I talics added .) T his language means “[e]vidence of voluntary
intoxication is inadmissible to negate the existence of general8

criminal intent.” ( People v. Atkins (2001) 25 Cal.4 th 76, 81.)

“ ‘A crime is characterized as a “general intent” crime when the required mental state entails only an intent to do the act that
causes the ha rm; a crime is characterized as a “specific intent” crime when the required mental state entails an intent to cause the resulting harm.’ ” ( Id. at p. 86.) Although d istinguishing general intent and specific intent
is “notoriously difficult” ( People v. Ho od (1969) 1 Cal.3d 444, 456 )

, section 69 is an example of that distinction. The first part of subdivision (a) penalizes “[e]v ery person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any d uty imp osed upon the officer by law .” (§ 69, subd. (a).) Attempting by violence to deter or prevent

an officer from performing a duty is a specific intent offense,
because the defendant must act with the intent to cause harm by preventing the officer from perfo rming the duty. ( People v.
Rasmussen (2010) 189 Cal.App.4 th 1411, 1420.) But the second part of subdivision (a), the offense of which Roachford was convicted, penalizes anyone “ who knowingly resists, by the use
of force or violence, the officer, in the p erformance of his or her duty.” (§ 69, subd. (a).) This is a general intent offense, because the defendant must act only with the knowledge that the victim
is an officer doing his du ty, without any separate intent to cause
a certain outcome

. ( Rasmussen

, at pp. 1419

- 1421.) Intoxication
was not a defense.
Roachford cites People v. Foster (1971) 19 Cal.App.3d 649, 655, and People v. Reyes (1997) 52 Cal.App.4 th 975 ( Reyes )

, to support his argument that voluntary int oxication is a defense to general intent cr imes when actual knowledge is an element. People v. Foster held voluntary intoxication was relevant to9

defend against the charge of possession of heroin, a general intent crime requiring knowledge. ( Foster

, at p. 655.) But the
statute then in effect, section 22 (t he predecessor to section 29.4 ), allowed evidence of voluntary intoxication “ ‘whenever the
actual existence of any particular purpose, motive, or intent is

a necessary element to constitute any particular species or degree
of crime. ’ ” ( Fost er , at p. 654.) By contrast, the statute in effect at the time of Roachford’s trial, sectio n 29.4 , states in subdivision (a) that v oluntary intoxication is not relevant to the defendant’s capacity to form “any mental states for the crimes charged,
includi ng . . . knowledge ,” and in subdivision (b) that evidence
of voluntary intoxication is admissible only to show whether

a defendant “actually formed a required specific intent.” ( I talics
added .)
The defendant in People v. Reyes was charged with the receip t of stolen property, which required the prosecution to prove the property was stolen, the defendant possessed it, and the defendant knew the property was stolen. ( Reyes

, supra , 52 Cal.App.4th at p. 984.) Conscious possession of stolen property was not e nough; additional evidence must show the defendant knew the property was “ ‘tainted.’ ” ( Id . at p p

. 984

- 985.) But simply receiving stolen goods with the knowledge they
were stolen is not a crime if the defendant intended to restore
it to the owner: “ ‘T he critical factor is the defendant’s intent

at the time he receives or initially conceals the stolen property
from the owner. The intent to restore must exist at the moment the stolen property is accepted . . . . If the defendant received

or concealed st olen property with general criminal intent to aid
the thief, or to deprive the owner of possession . . . he possesses the requisite wrongful intent .’ ” ( Id

. at p. 985. ) “[W]ith regard10

to the element of knowledge, receiving stolen property is

a ‘specific intent crime.’ ” ( Ibid. ) People v. Reyes has been criticized as based on outdated and inapplicable authority. ( People v. Berg (2018) 23 Cal.App.5 th 959, 969.) In any event, i t is easily distinguishable here. 2 A ll the prosecution had to prove is that R oachford knowingly resisted

an officer engaged in performing his duty. The second part of section 69, subdivision (a) does not require any additional intent or goal, or any knowled ge beyond that the officers were doing
their duties. The trial court was n ot required to instruct on voluntary intoxication as a defense to counts 2 and 4.
And even if the court had erred when it restricted the jury’s consideration of voluntary intoxication to count 3 , it would be state law error, requiring reversal only if the re was a reasonable probability the error affected the verdict adversely to Roachford. ( People v. Mendoza (1998) 18 Cal.4 th 1114, 1134

- 1135.) We

see no such probability here. Although it was free to consider Roachford’s voluntary intoxication on count 3 , in finding him guilty and finding true the allegation, the jury necessarily found
he was able to form the intent to deprive the officers of the use
of the patrol vehicle, and able to know the patrol car was on

an emergency call. It is not reasonably pro bable the jury would

2 People v. Moore (2018) 19 Cal.App.5th 889, 894, states:

“ For example, the crime of resisting arrest requires the perpetrator to know the person they are resisting is an officer, and thus evidence of voluntary intoxication is admissible to show the defendant did not know. ( Reyes

, [ supra , 52 Cal.App.4th]
at pp. 9 85

- 986.)” People v. Quarles ( 2018) 25 Cal.App.5th 631, 635 quotes this passage , and in turn Roachford quotes it in his opening brief. Reyes does not even mention the crime of resisting an officer, and makes no such holding.11

at the same time conclude his voluntary intoxication made
Roachford unable to know the deputies were officers performing their official duty and acquit him on counts 2 and 4

. DISPOSITION The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

EGERTON, J.

We concur:

LAVIN, Acting P. J.

DHANIDINA , J.