1 Filed 4/24/13 P. v. Oropeza CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Shasta)

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THE PEOPLE, Plaintiff and Respondent,

v. MARIO LUIS OROPEZA, Defendant and Appellant. C068391 (Super. Ct. No. 10F8507)

A jury convicted defendant Mario Luis Oropeza of, among other things, attempting to deter an officer from performing any duty by means of threat or violence. Defendant now contends (1) the trial court erred in failing to instruct the jury on the lesser included offense of willfully resisting, delaying or obstructing a public officer in the discharge of his duties; (2) the trial court erred in failing to in struct the jury on the requisite specific intent to deter or preven t a police officer from performing his duty; and (3) the cumulative effect of the instructional errors resulted in prejudice.2 We conclude (1) the trial court did no t have a sua sponte duty to instruct on resisting an officer, because the crime of re sisting an officer is not a lesser included offense of attempting to deter an officer; (2) the trial court properly in structed th e jury on the requisite specific intent; an d (3) because there was no inst ructional error, the claim of cumulative prejudi ce lacks merit. We will affirm the judgment. BACKGROUND City of Redding Police Officer Nick We aver saw a car drifting between two lanes and pulled the car over. Defenda nt was in the driver’s seat and his brother Israel Oropeza was in the front passenger seat. Officer We aver noticed that defendant’s eyes were bloodshot, his speech was slurred, and he smelle d of alcohol. When asked if he had been drinking, defendant said he drank two beer s between noon and the time he was stopped, but he later admitted drinking six beers. Officer Weaver observed that defendant’s gait was unsteady, he had difficu lty standing up, and he sway ed from side to side. City of Redding Police Officer Brian To rum happened by the scene and stopped. Defendant told Officer Weaver he recently had back surger y but he could perform field sobriety tests. Nonetheless, defendant was argumentative and angry about having to perform the tests, prompting Officer Weaver to request further backup. City of Redding Police Officer Jacob Provencio responded to th e call. Officer Provencio was assigned as a DUI (driving under the influence) specialist that night. Officers Weaver and Provencio wore their Redding Police Department unifo rms and drove marked patrol cars. After observing defendant’s poor performan ce on the field sobriety tests, Officer Weaver informed defendant that he was unde r arrest for suspicion of driving under the influence. Officer Weaver in structed defendant to place hi s hands behind his back. But defendant threw his baseball cap on the gr ound, took a few st eps toward Officer Provencio and “bladed” his stance like a boxer would assume while fighting.3 Officer Weaver took out his baton. Officer Provencio pointed his Tazer at defendant because he did not know defendan t’s intention and defendant did not comply with Officer Weaver’s instruction. At that point defendant complied with Officer Weaver’s request to put his hands behind his back, and defendant was handcuffed and placed in the back of a patrol car. While Officers Weaver and Torum evalua ted whether defendant’s brother was too intoxicated to leave the scene, Officer Provencio remained near the patrol car to complete paperwork. Defendant was yelling. When O fficer Provencio turned on the dome light inside the patrol car so he could see what defendant was doing, de fendant asked Officer Provencio in a menacing voice if he had a family. Defenda nt’s demeanor was angry and threatening when he asked th e question. Officer Provencio asked why defendant wanted to know, and defendant laughed and said at le ast twice, “Your family is dead. Your family is fucking dead.” O fficer Provencio opened the rear passenger door of the patrol car and asked defendant if he was threaten ing Officer Provencio’s family. Defendant lunged at Officer Provencio. Using his ha nd, Officer Provencio grabbed the front of defendant’s shirt and pushed defendant back in the patrol car. Defendant continued to say that Officer Provencio’s family was dead. When Officer Provencio activated his digital voice recorder, defendant mouthed the words that Officer Proven cio’s family was dead but di d not say the words aloud. Officer Provencio asked defendant what he wa s saying. Defendant denied that he said anything and denied that he had threatened Officer Provencio’s fami ly. Defendant called Officer Provencio a “fucking faggot liar.” A recording of what wa s captured on Officer Provencio’s digital recorder was played at trial. Officer Weaver subsequently opened the door of the pa trol car to ask defendant whether he would submit to a breath or bloo d test. Defendant re sponded, “Fuck you, nigger.” Defendant said Officer Weaver wa s “fucking dead” and spit on Officer Weaver, striking him in the chest.4 When Officer Weaver instru cted defendant to lean his head out of the car so the officers could put a spit hood over his head, 1 defendant refused and tried to step out of the patrol car. Officer Weaver ordered defenda nt to remain in the car. Defendant later complied by placing his head out of the car and Officer Weaver put a spit hood on defendant. Defendant continued yelli ng and cursing, and accused one of the officers of punching him in the face. Defend ant said someone called him a “spic” 2 and the officers were racist and were trying to “get” defendant. Defenda nt threatened that Officer Provencio would lose his job because he was racist and someone had hit defendant. At trial, Officers Weaver, Torum and Prov encio denied referring to defendant as a “spic.” The officers said they did not hear an y officer use that term. The officers also denied hitting defendant or seei ng anyone hit defendant. Because defendant refused to submit to a breath, urine or blood test, Officer Weaver drove defendant to the Shasta Regional Medical Center for a forced blood draw. Defendant remained argumentativ e with Officer Weaver and was angry about his arrest and having his blood drawn. Defendant’s blood had a .16 percent blood alcohol concentration. Defendant told Officer Weav er that an officer placed a hand around defendant’s throat and punched defendant in the right eye. Defendant complained that his eye was swollen shut. Officer Weaver photographed de fendant’s face; he did not see any injury

1 A spit hood is made of mesh (similar to what a beekeeper wears on his or her head) and is placed on a detained person who spits at o fficers. The hood does not affect the ability to breathe.

2 Officer Provencio testified that “spic” is a derogatory term used to refer to someone of Hispanic descent.5 to defendant’s face or eye, or any marks on defendant’s neck. The photographs were received into evidence at the trial. Defendant testified at trial. He admitted drinking on th e evening of his arrest and driving home using back roads so he would not be caught. Defendant admitted he lied to Officer Weaver about th e number of beers he had consum ed because he did not want to get caught for drinking and driv ing. Defendant said he complied with Officer Weaver’s instructions and elected to take a blood test when Officer Weaver asked him to take a breathalyzer test. According to defendant, things got scar y after he refused to take a breathalyzer test. Defendant was asked whether he was affiliated with a gang and if he had any tattoos. He was told that he was wearing gang paraphernalia beca use he was wearing a blue University of Nevada hat. Defendant denied any gang affiliation and questioned what that had to do with anything. De fendant denied throwing his hat down. Defendant testified that Officer Torum pu lled out a baton. In response, defendant turned around, pulled down the back of his pant s, and said he just had major back surgery and was not looking to fight. Defendant said he complied when directed to put his hands on his head, but he was hit from the back and slammed onto the hood of the patrol vehicle. His hand was twisted to his back an d he was placed in handcuffs and in the back of a patrol car. According to defendant, Officer Provencio arrived at the scene after defendant was placed in the patrol car. Defendant heard O fficer Provencio yell at Israel about having a prescription bottle, and defendant yelled th at the prescription bottle belonged to defendant. Defendant said Officer Provencio then ran to the patrol car, opened the back passenger door, head-butted defendant, and said “Whoops. Watch your head. Watch your head.” Defendant said Officer Provencio also smacked the side of defendant’s head, pushed defendant back with hi s hand and choked defendant’s throat so that defendant could not breathe. Defendant said he cough ed in Officer Proven cio’s face while the6 officer was choking defendant, at which po int Officer Provencio called defendant a “spic.” But defendant denied spitting at any of the officers. He said he spit at the window of the patrol car because he was angry and Officer Weaver was near the car when he spit. Defendant admitted being angry and admitted cursing, but only after he was slammed onto the hood of the patrol car. He denied threatening Officer Provencio’s family but admitted saying “You’re dead, you ’re fucking dead” in reference to all the officers. Defendant also admitted saying “y ou wait and see who I am. Wait and see who I am.” He testified he was telling the officers their treatment of defendant could affect their jobs. Defendant said he was referring to Officer Provenc io when he said “Fucking bitch, this guy hit me.” Defendant also admitted saying “Fuck you, nigger.” The prosecution called Officers Provencio and Weaver as rebuttal witnesses. They said defendant was not slammed onto the hood of the patrol ca r. Officer Provencio denied head-butting defendant and Officer W eaver denied saying de fendant was wearing gang paraphernalia. The jury convicted defendant of attempti ng, by means of threat or violence, to deter or prevent an executiv e officer from performing a duty imposed by law (Pen. Code, § 69 3 -- count 1); driving under the influence of alcohol or drugs (Veh. Code, § 23152, subd. (a) -- count 2); driving w ith 0.08 percent or more, by we ight, of alcohol in his blood (Veh. Code, § 23152, subd. (b) -- count 3); and assault on a peace officer (§ 241, subd. (c) -- a lesser included offense to the charge of battery a sserted in count 4). In a bifurcated proceeding, the tria l court found true an enhancem ent allegation that defendant was previously convicted of driving under the influence. The trial court suspended

3 Undesignated statutory references are to the Penal Code.7 imposition of sentence and placed defendant on probation for five years on the condition, among others, that he serv e 180 days in jail. DISCUSSION
I Defendant contends that, in connection with the count 1 charge of attempting to deter an executive officer from performing a ny duty by means of threat or violence (§ 69), the trial court failed in its sua spon te duty to instruct the jury on the lesser included offense of willfully re sisting, delaying or obstructi ng a public officer (§ 148, subd. (a)(1)). Section 69 “sets forth two se parate ways in which an of fense can be committed.” ( In re Manuel G . (1997) 16 Cal.4th 805, 814.) Th e first is attempting to deter an executive officer from performin g any duty by means of thr eat or violence. (§ 69.) 4 The second is knowingly resisting, by force or violence, an execu tive officer in the performance of his duty. (§ 69.) Although count 1 of the informat ion alleged both ways of committing the offense, the People elected at the beginning of tria l to proceed only on the first way, the attempting-to-d eter offense. Based on that election, the trial court only read to the jury the allegation regarding a ttempting to deter, and instructed the jury accordingly. Defendant contends the trial court had a sua sponte duty to instruct on section 148, subdivision (a)(1), 5 because substantial evidence supp orts a finding that defendant resisted the officers rather than deterring or preventing the performance of their duties.

4 Police officers are executive officers within the meaning of section 69. ( In re Manuel G., supra , 16 Cal.4th at pp. 818-819.)

5 Section 148, subdivision (a)(1) provides, “Every person who willfully resists, delays, or obstructs any public officer, peace office r, or an emergency me dical technician, as defined in Division 2.5 (commencing with Se ction 1797) of the Health and Safety Code, in the discharge or attempt to discharge any duty of his or her office or employment,8 Defendant relies on People v. Lacefield (2007) 157 Cal.App.4t h 249, but that case does not assist him. The Court of Appeal in Lacefield held that a section 148, subdivision (a)(1) violation is a lesser included offense of the resisting theory under section 69, but it also recognized that a section 148, subdivisi on (a)(1) violation is not a lesser included offense of the attempti ng-to-deter theory. ( Lacefield, supra, 157 Cal.App.4t h at pp. 257- 258.) Defendant does not claim that a section 1 48, subdivision (a)(1) violation is a lesser included crime of the attempting-to-deter offens e. Because the People did not proceed on the resisting theory but instead proceeded under the attempti ng-to-deter theory, the trial court did not have a sua sponte duty to instruct on section 148. ( People v. Cash (2002) 28 Cal.4th 703, 737; People v. Miller (1994) 28 Cal.App.4th 522, 526.) Defendant next argues in the text of hi s opening brief, but not in a heading, that the trial court should also ha ve instructed the jury on the second way that section 69 can be violated, the resisting offense. He says the trial court should not have accepted the prosecutor’s election of only on e theory. The Atto rney General respond s that there is no obligation to instruct the jury on a crime for which defendant is not being prosecuted.
In People v. Lopez (2005) 129 Cal.App.4th 1508 ( Lopez ), the defendant was charged with both types of s ection 69 offenses but the trial court instructed the jury only on the resisting offense. ( Lopez, supra , 129 Cal.App.4th at pp. 1530-1531, fn. 15.) The appellate court held the trial court had a sua sponte duty to instruct the jury on the attempting-to-deter offense because in that case , the prosecutor relied on that theory. ( Id. at p. 1531.) But here, unlike in Lopez , the People did not rely on the resisting offense and chose not to proceed under that theory. The People were within their authority to elect to

when no other punishment is prescribed, sha ll be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment.”9 prosecute defendant for the attempting-to-deter offense only. ( People v. Birks (1998) 19 Cal.4th 108, 134-136; People v. Brigham (1989) 216 Cal.App. 3d 1039, 1051-1052 [rejecting argument that the “People's election to prosecute a case solely as an aiding and abetting crime, which case is equally susceptib le of a conspiracy prosecution, remove[d] unfairly the conspiracy defenses he would otherwise assert”].) When the trial court read the charges against defendant, it did not inform the jury that defendant was accused of resisting an executive officer in the performance of his dutie s. And the jury was never asked to decide whether defendant violated section 69 on that theory. Under these circumstances, the trial court had no sua sponte duty to instruct the jury on the resisting offense. ( People v. Cash, supra, 28 Cal.4th at p. 737; People v. Silva (2001) 25 Cal.4th 345, 371; People v. Prettyman (1996) 14 Cal.4th 248, 269-270; Lopez, supra , 129 Cal.App.4th at pp. 1530-1531; People v. Valentine (2006) 143 Cal.Ap p.4th 1383, 1387; People v. Miller, supra, 28 Cal.App.4th at p. 526.) In arguing that the trial court should have instructed on both types of section 69 offenses, defendant points to the conduct of th e prosecutor during trial. But the record does not show error. During the prosecutor’s opening statemen t, she described what she believed the evidence would show and said she would ask the jury to fi nd the defendant guilty of threatening Officer Provencio. The prosecutor did not say that the ju ry would be asked to determine whether defenda nt resisted a peace officer in th e performance of his duties, and she did not use the words “r esist” or “resisting.” Then, in discussing count 1 during her closing argument, the prosecutor described the elements of an attempting- to-deter offense. She played the audio recording made by Officer Provencio and focused on Officer Pr ovencio’s testimony that defendant said Officer Provencio’s family wa s dead. The prosecutor also pointed out instances where defendant displayed aggression toward Office r Provencio. The prosecutor argued that defendant threatened Office r Provencio’s family, used violence against Officer10 Provencio, and intended to prevent Officer Provencio from doing his duty. Those arguments tracked the elements of the attempting-to-deter offense on which the jury was instructed. The prosecutor di d not say, and did not ask the jury to find, that defendant resisted the officers in the pe rformance of their duties. Defendant has not demonstrated that the prosecutor’s comments c ould have misled the jury. To the extent defendant asserts other purported contentions without including them in a separate heading and without adequate analysis or citations to the record or to authority, they are forfeited. ( Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 13 23, 1345-1346 & fn. 17; People v. Harper (2000) 82 Cal.App.4th 1413, 1419, fn . 4; Cal. Rules of Court, rule 8.204(a)(1)(B).)
II Defendant next contends the trial court erred in failing to instruct the jury on the requisite specific intent to deter or prevent a police officer from performing his duty. He notes that an attempt done with the intent to delay an officer, rath er than to deter or prevent an officer, is not sufficient for a conviction on count 1. “We determine whether a jury instruc tion correctly states the law under the independent or de novo standard of review . [Citation.] Review of the adequacy of instructions is based on whether the tria l court ‘fully and fair ly instructed on the applicable law.’ [Citation.] ‘ “In determ ining 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 un derstanding and correlating all jury instructions which are give n.” [Citation.]’ [Citation.] ‘Instructions should be interpreted, if possible, so as to support the judgment rather than defeat it if they are reasonably susceptible to su ch interpretation.’ [Citation.]” ( People v. Ramos (2008) 163 Cal.App. 4th 1082, 1088.) Applying these principles here, we c onclude there was no error. The attemptingto-deter offense is a specific intent crime. ( People v. Gutierrez (2002) 28 Cal.4th 1083,11 1154; People v. Nishi (2012) 207 Cal.App.4th 954, 967; Lopez, supra , 129 Cal.App.4th at p. 1530.) A violation requires the intent to interfere with an executive officer’s performance of his duties. ( People v. Gutierrez, supra, 28 Cal.4th at pp. 1153-1154; In re Manuel G., supra, 16 Cal.4th at p. 810; People v. Nishi, supra, 207 Cal.App.4th at p. 967.) The trial court instru cted the jury accordingly. The trial court instructed the jury consistent with CALCRIM No. 2651, directing them that in order to find defendant gu ilty on count 1, the People must prove (1) defendant willfully and un lawfully used violence or a threat of violence to try to prevent or deter an executive officer from performing the officer’s la wful duty, and (2) when the defendant acted, he intended to prevent or deter the executive offi cer from performing the officer’s lawful duty. The trial court re iterated that the People must prove beyond a reasonable doubt that defendant acted with the intent to pr event or deter an executive officer from performing the office r’s lawful duty. The jury wa s not instructed that intent to delay is an element of a section 69 violation. There was no error. ( In re Manuel G., supra, 16 Cal.4th at p. 81 5.) Accordingly, we do not discuss defendant’s claims of prejudice.
III Defendant claims the cumulative effect of the instructional errors resulted in prejudice. Because we conclude ther e was no error, the claim lacks merit. DISPOSITION The judgment is affirmed.

MAURO , J.

We concur:

HULL , Acting P. J.

HOCH , J.