Filed 12/4/14 P. v. Mancilla CA2/8 

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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 Superior 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 General, for Plaintiff and 

Respondent. 

__________________________ 
2 

 Osbaldo Mancilla appeals from his conviction on two counts of resisting arrest and 

other charges, contending that: (1) the trial court erred by not instructing the jury that he 

was not guilty of resisting arrest if the officers 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 contentions and therefore affirm the judgment. 

FACTS AND PROCEDURAL HISTORY

 At around 12:15 p.m. on June 25, 2012, paramedics were called to a Goodwill 

facility in San Fernando after 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 outside 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 before, 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 nearby flood control channel. Fernandez and 

Tuck arrived first. They approached Mancilla, identified themselves as police officers, 

and ordered Mancilla to stop and get on the ground. When Mancilla kept walking away 

quickly, Fernandez repeated his 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 you. You’re going to have 

to kill me. Kill me. Throw me in the river.” 

 Fernandez and Tuck tried to isolate 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 off his back. The officers’ 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. Fernandez punched Mancilla in the face in order to 
3 

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 English 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 officers, successfully landing blows to both 

Tuck and Ruano. Fernandez warned Mancilla that he would apply a taser unless 

Mancilla complied, but Mancilla kept flailing and trying to buck the officers off his back. 

Fernandez then tasered Mancilla by pressing the 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 handcuffed and was lying on his back, he flipped over again and 

began kicking, striking Fernandez once or twice. The officers applied a hobble restraint 

to stop the kicking, and Mancilla was then taken into the emergency room. According to 

Fernandez, the officers’ use of force complied 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 Require 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 executive 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, the arrest was unlawful and the arrestee cannot 

 

1 All further section references are to the Penal Code. 
4 

be convicted of violating section 69. (Ibid.) An arrest made with excessive force is not 

within the performance of an officer’s duties. (Ibid.) 

 If there is substantial evidence that an arrest was made with excessive force, the 

trial court has a sua sponte duty to instruct the jury on that issue. (People v. Gonzalez

(1990) 51 Cal.3d 1179, 1217, superseded by statute as stated in In re Steele (2004) 

32 Cal.4th 682, 691.) Mancilla contends that even though his trial lawyer did not request 

such an instruction, the trial court erred by not giving it anyway because there was 

substantial evidence that the arresting officers used excessive force.2 We disagree. 

 In the context of civil actions arising under federal civil rights (42 U.S.C. § 1983) 

or state tort law, an officer may use reasonable force to make an arrest, prevent escape, or 

overcome resistance, and need not relent in the face of resistance. (Munoz v. City of 

Union City (2004) 120 Cal.App.4th 1077, 1102 [wrongful death action claiming police 

used excessive force], disapproved on another ground by Hayes v. County of San Diego

(2013) 57 Cal.4th 622, 639, fn. 1.) Police officers act under color of law to protect the 

public interest and are charged with acting affirmatively 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 force 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 examine several factors: (1) the nature and 

quality of the force used; (2) the severity of the suspect’s crime; (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 objectively 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 also tells the jury that the 

prosecution has the burden of proof on this issue. 
5 

 CALCRIM No. 2670 does not define what constitutes reasonable or excessive 

force by a police officer in this context, and the few reported decisions in this area offer 

little guidance. Respondent cites People v. Ghebretensae (2013) 222 Cal.App.4th 741, 

which held that there was insufficient 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 applied 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 engaged in an ever-escalating spiral of excessive 

force. He contends the officers punched him without cause after he tried to get up, that 

because there was no sign he had a weapon the officers should have done nothing more 

than control his hands until they determined no weapon existed, and that the officers 

tasered him and continued their use of physical force even though he was down on the 

ground. He also contends that his kicking and arm flailing could have 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 that excessive force was used. That evidence 

did not sufficiently suggest 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 involved testimony by the defendant, which, if believed, showed that 

the officers used excessive force. Here, Mancilla did not testify or offer other evidence in 

his defense. The only evidence concerning what happened came from the arresting 

officers. 

 We see only one inference from the officers’ testimony: that they were faced with 

a very strong, combative suspect who refused to comply with their directions to stop, and 

whose resistance posed a threat to the officers’ safety that justified the force used to 
6 

subdue him. Mancilla had just intentionally 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 circumstances. From that 

point on, it was Mancilla’s behavior that spiraled out of control, with him telling the 

officers to kill him and then mustering enough strength to toss 470 pounds worth of 

police officers off his back as they 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 officers to subdue Mancilla, who, even after 

being tasered, continued to struggle, kick, and 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 the jury with CALCRIM 

No. 2670. 

2. Ineffective Assistance of Counsel Claim

 Mancilla contends that he received ineffective assistance of counsel because his 

trial lawyer did not investigate the excessive force issue in order to present it as a defense 

at trial and did not request CALCRIM No. 2670. 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 counsel’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 burden of establishing that he received 

ineffective assistance of counsel. (Ibid.) If the record on appeal 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 counsel was asked for an explanation and failed 
7 

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 asserted 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 investigation might have revealed. We cannot 

assume from a silent record what evidence or witnesses 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 summarily denied the petition by a separate order.