Filed 12/4/14 P. v. Mancilla CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 EIGHT

THE PEOPLE
Plaintiff and Respondent;

v.
OSBALDO MANCILLA,
Defendant and Appellant. B252532
(Super. Ct. No. BA401936)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Craig Richman, Judge. Affirmed.

Janet Uson, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Michael Katz, Deputy Attorneys Genera l, for Plaintiff and Respondent.

_____________ _____________2 Osbaldo Mancilla appeals from his convictio n on two counts of re sisting arrest and other charges, contending that: (1) the trial c ourt erred by not instructing the jury that he was not guilty of resisting arrest if the office rs used excessive force; and (2) that his lawyer was ineffective for not requesting that instruction and not preparing a defense on that theory. We reject both contenti ons and therefore affirm the judgment.

FACTS AND PROCED URAL HISTORY
At around 12:15 p.m. on J une 25, 2012, paramedics were called to a Goodwill facility in San Fernando af ter Goodwill workers noticed Osbaldo Mancilla moaning in pain and rubbing his stomach. After Mancilla was placed on a gurney he became combative, flailed his arms around, and then ran off. One hour later Mancilla drove his car through a pedestrian breezeway outsid e the Goodwill building and crashed through the front door. Lyn Mayer had just stepped out the front door as Mancilla approached and moved out of the way to avoid being hit. Seconds be fore, as Mancilla approached the breezeway, he sped perilously close to a bench occupied by Valencia Walton and Maria Rodriguez, nearly clipping the women before they jumped out of the way. Los Angeles Police Officers Fernandez, Tuck, Ruano, and Ramirez came to the scene and quickly found Mancilla in the near by flood control channel. Fernandez and Tuck arrived first. They approached Manc illa, identified themselves as police officers, and ordered Mancilla to stop an d get on the ground. When Mancilla kept walking away quickly, Fernandez repeated hi s orders and grabbed Mancilla’s wrist. Mancilla tried to pull away and the officers pushed him face down onto the ground. The officers kneeled
on Mancilla’s back and shoulders . Mancilla shouted, “Fuck yo u. You’re going to have
to kill me. Kill me. Throw me in the river.”
Fernandez and Tuck tried to isolat e Mancilla’s hands because they were underneath his belly and they were concerned that he might have a weapon. Mancilla “rose up and physically threw” both officers o ff his back. The office rs’ combined weight was 470 pounds. According to Fernandez, Mancilla was now in a better position to fight, run, or use a weapon if he had one. Fernan dez punched Mancilla in the face in order to3 bring him back down on the ground. Doing so would give the officers more time and more options and would prevent Mancilla from hurting them, according to Fernandez.
The officers told him several times in both E nglish and Spanish to give them his hands and not to resist. At this point Officers Ruano and Ramirez joined Tuck and Fernandez in using their body weight to keep Mancilla pinned. Mancilla kept trying to elbow the offi cers, successfully landing blows to both
Tuck and Ruano. Fernandez warned Manc illa that he would apply a taser unless Mancilla complied, but Mancilla kept flailing and trying to buck the o fficers off his back. Fernandez then tasered Mancilla by pressing th e device against his lower back. Mancilla
told the officers not to do that again and then complied long enough to be handcuffed.
After Mancilla had been handcuf fed and was lying on his back , he flipped over again and began kicking, striking Fernandez once or twic e. The officers applied a hobble restraint to stop the kicking, and Mancilla was then ta ken into the emergency room. According to Fernandez, the officers’ use of force comp lied with department guidelines and their training. Mancilla was charged with and convicted of two counts of assault with a deadly weapon for driving his car toward Mayer and Walton, two counts of resisting arrest under Penal Code section 69, and one count of felony vandalism.

DISCUSSION

1. There Was Insufficient Evidence to Re quire an Excessive Force Instruction

Mancilla was convicted on two counts of violating Penal Code section 69, which makes it unlawful to knowingly resist by force or violence an exec utive officer in the performance of his lawful duties. 1 Lawfulness of the arrest is an essential element of this offense. ( Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1409.) If the officer was not performing his duties at the time, th e arrest was unlawful and the arrestee cannot

1 All further section references are to the Penal Code.4 be convicted of viol ating section 69. ( Ibid. ) An arrest made with excessive force is not within the performance of an officer’s duties. ( Ibid. )
If there is substantial evid ence that an arrest was made with excessive force, the trial court has a sua sponte duty to in struct the jury on that issue. ( People v. Gonzalez (1990) 51 Cal.3d 1179, 12 17, superseded by st atute as stated in In re Steele (2004) 32 Cal.4th 682, 691.) Mancilla c ontends that even though his trial lawyer did not request such an instruction, the tr ial court erred by not giving it anyway because there was
substantial evidence that the arrest ing officers used excessive force. 2 We disagree. In the context of civil actions arising u nder federal civil rights (42 U.S.C. § 1983) or state tort law, an officer may use reasonabl e force to make an arrest, prevent escape, or overcome resistance, and need not rele nt in the face of resistance. ( Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, 1102 [wrongful deat h action claiming police used excessive force], disappr oved on another ground by Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639, fn. 1.) Police o fficers act under color of law to protect the public interest and are charged with acting af firmatively and using force as part of their duties. ( Id. at p. 1109.) Because a police officer is exercising the privilege of protecting the public peace and order, he is allowed to use greater forc e than might be considered sufficient for self-defense. ( Ibid. ) In the context of civil actions claiming that a plaintiff’s constitutional rights were violated by the use of excessive force, we ex amine several factors: (1) the nature and quality of the force used; (2) th e severity of the suspect’s cr ime; (3) whether the suspect posed an immediate threat to the safety of the officers or others; and (4) whether the suspect was actively resisting arrest or trying to flee. Of these, the threat posed to the officers or others is the most important, and is measured obje ctively under all the circumstances. ( Mattos v. Agarano (9th Cir. 2011) 661 F.3d 433, 441-442; Mendoza v. City of West Covina (2012) 206 Cal.App.4th 702, 711-712.)

2 The relevant instruction is CALCRIM No. 2670, which al so tells the ju ry that the prosecution has the burden of proof on this issue.5 CALCRIM No. 2670 does not define wh at constitutes reasonable or excessive force by a police officer in this context, and th e few reported decisions in this area offer little guidance. Respondent cites People v. Ghebretensae (2013) 222 Ca l.App.4th 741,
which held that there was in sufficient evidence of excessive force to require giving
CALCRIM No. 2670. Ghebretensae in turn cited two federal appellate decisions arising under federal civil rights law that a pplied the test set forth above. ( Ibid., citing Robinson v. Solano County (9th Cir. 2002) 278 F.3d 1007, 1013-1015; Jackson v. Sauls (11th Cir. 2000) 206 F.3d 1156, 1171-1172. ) In the absence of other authority, we employ the same
test here.
Mancilla contends that after Fernandez’ s initial attempt to stop him by grabbing his wrist failed, he and the other officers engage d in an ever-escalating spiral of excessive force. He contends the officers punched him w ithout cause after he tried to get up, that because there was no sign he ha d a weapon the officers shou ld have done nothing more
than control his hands until th ey determined no weapon existe d, and that the officers
tasered him and continued thei r use of physical force even though he was down on the ground. He also contends that his kicking and arm flailing could ha ve been viewed by a jury as acts of self-defense against the officers ’ excessive force. He also points to the fact that he was taken to the hospital as proof th at excessive force was used. That evidence did not sufficiently su ggest excessive force. Analogizing to People v. Soto (1969) 276 Cal. App.2d 81 and People v. Olguin (1981) 119 Cal.App.3d 39, Mancilla contends the evidence here was sufficient to call for
the CALCRIM No. 2670 excessive force instruction. His reliance on these decisions is misplaced. Both involv ed testimony by the defendant, whic h, if believed, showed that the officers used excessive force. Here, Mancilla did not testify or offer other evidence in his defense. The only evid ence concerning what happ ened came from the arresting
officers. We see only one inference from the officers ’ testimony: that they were faced with a very strong, combativ e suspect who refused to comply with their directions to stop, and whose resistance posed a threat to the officers ’ safety that justifie d the force used to6 subdue him. Mancilla had just intentionall y driven his car into a building, narrowly missing three people who had to move out of his way. He did not comply with the officers’ request to stop, and pulled away when Fernandez grabbed his arm. Pushing Mancilla to the ground was not unreasonable in light of those circum stances. From that point on, it was Mancilla’s behavior that spir aled out of control, with him telling the officers to kill him and then mustering enou gh strength to toss 47 0 pounds worth of police officers off his back as th ey tried to isolate his hands to look for weapons. Once on his feet, Mancilla was poised to either fight or flee. It took the combined might of four offi cers to subdue Mancilla, who, even after being tasered, continued to struggle, kick, a nd flail at the officers. Nothing in this evidence could reasonably lead a jury to find that the officers used excessive force. We
therefore conclude that the trial court had no duty to instruct th e jury with CALCRIM
No. 2670.

2. Ineffective Assistance of Counsel Claim

Mancilla contends that he received ine ffective assistance of counsel because his trial lawyer did not investigate the excessive fo rce issue in order to present it as a defense at trial and did not request CALCRIM No. 26 70. In assessing this claim we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and, if so, whether it is reasonably probable that Mancilla suffered prejudice as a result. ( People v. Carter (2005) 36 Cal.4th 1114, 1189 ( Carter ).) We indulge a presumption that trial c ounsel’s performance was not incompetent and that her actions can be explained as a matter of sound trial strategy. ( Carter, supra, 36 Cal.4th at p. 1189.) Mancilla bears the bu rden of establishing that he received ineffective assistance of counsel. ( Ibid. ) If the record on app eal sheds no light on why
counsel acted or failed to act in the manner challenged, we will reject a claim of
ineffective assistance of counsel unless couns el was asked for an explanation and failed7 to provide one, or there can be no satisfactory explanation. ( Ibid. ) Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. ( Ibid. ) Because the appellate record shows that there was insufficient evidence to require the trial court to instruct the jury on excessive force, we hold that Mancilla’s trial counsel was not ineffective in that regard. ( People v. Jennings (2010) 50 Cal.4th 616, 667, fn. 19.) As for counsel’s assert ed failure to investigate the issue and prepare an adequate defense on the ground that the officers used excessive force, Mancilla offers nothing from the appellate record to show what such an in vestigation might have revealed. We cannot
assume from a silent record wh at evidence or w itnesses might have been produced and cannot speculate concerning the probable substance of such testimony. ( People v.
Medina (1995) 11 Cal.4th 694, 773 .) We therefore also affirm as to that issue. 3

DISPOSITION
The judgment is affirmed.

RUBIN, J. WE CONCUR:

BIGELOW, P. J.

GRIMES, J.

3 Mancilla filed a companion habeas corpus petition (B256005) in which these issues were fully developed. We summar ily denied the petition by a separate order.