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Filed 8 /17/ 23 P. v. Glass CA3 NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(El Dorado)

----

THE PEOPLE,

Plaintiff and Respondent,

v.
ROBERT MICHAEL GLASS,

Defendant and Appellant. C096404 (Super. Ct. No. P20CRF0654)

D efendant Robert Michael Glass fled during an arrest , and a jury found him guilty
of forcefully resisting an executive officer (Pen. Code, § 69; all further section refer ences are to the Penal Code) . B ut the trial court did not instruct on the lesser included offense of resisting without force (§ 148, subd. (a)(1)) , and the re was substantial evidence of a
lack of force

. On appeal, defendant argues the trial court committ ed prejudicial error by not instructing the jury on the lesser

. We agree and reverse

.2 FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with one count of violating section 69 , alleg ing he both deterred and resisted an executive officer using force and violence. It was further alleged defendant had a prior strike.
A. Trial Evidence
Officer Mark Utterback testified that on the morning of December 21, 2020, he drove to an RV parked on the side of a rural highway

. Defendant had an outstanding

arrest warrant , and Utterback had reason to believe that defendant was in the RV.
Utterback parked behind the RV and c alled for defendant to come out. After some time,
defendant came out of the rear window of the RV directly in front of Utterback ’ s parked patrol car

. The prosecutor played a video from Utterback ’ s patrol car showing what happened

next

. Utterback told defendant he was going to jail because he had warrants, turned
defendant arou nd to face the RV, started to arrest defendant, and defendant ran away. Utterback chased defendant, who ran into the highway and then back to the front of the
RV while Utterback threatened to use his T aser. Utterback then shot his T aser just as they both ran in front of the RV and out of view of the patrol car ’ s camera. S ounds of a struggle are heard from the video’s audio , coming from a microphone on Utterback, and defendant says “okay” an d “why” repeatedly while Utterback says “behind your back” seve ral times, then “behind your back or I ’ m going to start fucking you up and you ’ ll get tased again.” Utterback then says , “I got one combative , ” and
defendant responds , “No, I ’ m not combative. I ’ m giving up. I ’ m not combative.” Utterback says , “ c alm the fuck down,” and then sounds of another struggle are heard while defendant yells , “why.” then says different forms of “I can ’ t breathe,” “please let me breathe,” “I ’ m not combative,” and “I ’ m not trying to fight you,” while Utterback

says multiple times , “calm down” and “just relax.” Both voices then become inaudible
but their conversation continues for about six minutes until another officer arrives. The3

two officers then emerge into the v iew of the camera from behind the RV with defendant
handcuffed between them.
Utterback testified he successfully s hot defendant with his T aser , and defendant fell to the ground behind the RV . Utterback put his knees on defendant ’ s back and
shoulder are a, started to arrest him , but realized he did not have his handcuffs because he dropped them when defendant ran away . Defendant then tried to pull the T aser prongs out of his back and tried to push himself up. This is when Utterback said , “ I ’ m going to

s tart fucking you up , ” explaining he was trying to use a harsher tone to stop defendant from struggling. Utterback then called dispatch to say he ha d “one combative.” Though
d efendant responded that he was not combative, Utterback said defendant was tryin g to get up the entire time. To try and stop defendant, Utterback grabbed defendant ’ s head “six to ten inches off the ground and forcibly shoved it onto the ground,” which was a “concrete asphalt mix.”
Utterback testified d efendant continued trying to get up and successfully stood up, rolling Utterback forward into a summersault off defendant. Utterback had a grip of
defendant ’ s shirt collar so he couldn ’ t run away again, defendant tried to push Utterback to the ground, but Utterback was able to grab d efendant ’ s leg and bring him back to the ground. Defendant tried to get up again , but Utterback hit him in the face with a closed fist, knocking him back to the ground so that Utterback could again get on defendant ’ s back . Defendant was then subdued until the other officer arrived

. Utterback explained , “[o]ftentimes people say they aren ’ t resisting while they are resisting, and that was the case here,” and defendant was able to breathe but people sometimes claim they cannot breathe to try and get away. Utterback also said defendant told him he ran because he panicked, “and when I w as on top of him and put his face into the ground, and he couldn ’ t breathe, and that made him panic further.”4

Pictures of defendant after the arrest showed several cuts on his face and a significant amount of blood on his right cheek and nose. Pictures of Utterback showed
blood y scratches on his knuckles and knees.
B. Jury Instructions , Verdict, and Sentencing
The court instructed with CALCRIM No. 2652 for resisting an executive officer
that included the element , “defendant unlawfully used force or v iolence to resist an executive officer.” The court also instructed with CALCRIM No. 2670 that a person may use “reasonabl e force to defend” themselves against an officer ’s excessive force

. The jury found defendant guilty of resisting an executive officer under section 69.
T he trial court sentenced defendant to the middle term of two years doubled to four for
the strike.
DISCUSSION The People correctly concede section 148, subdivision (a) (1) , is a lesser included
offense of section 69 here . Section 69 can be violated by either deterring or resisting an executive office with force or violence. ( People v. Smith (2013) 57 Cal.4th 232 , 240.)
Whe re, as here, the accusatory pleading alleges a violation of section 69 through forceful resistance, willfully resisting a public officer under section 148, subdivision (a)(1) is a lesser included offense. ( Smit h , at p. 243 .) But a trial court has a duty to instruct the jury sua sponte on a lesser in cluded offense only if it is supported by substantial evidence. ( People v. Breverman (1998)
19 Cal.4th 142, 154, 162; People v. Steskal (2021) 11 Cal.5th 332, 345.) “ Substantial
evidence is evidence that is ‘ “ of ponderable legal significance, ” ’ ‘ “ reasonable in nature, credible, and of solid value, ” ’ and ‘ “ ‘ substantial ’ proof of the essentials which the law requires in a particular case

. ” ’ ” ( Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005

- 1006.)
We must therefore resol ve whether there was substantial evidence defendant did not use force to resist Utterback. In making this determination, we view the evidence in5

the light most favorable to defendant. ( People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
We conclude t here was substantial evidence defendant committed the lesser
offense and not the greater

. T he video does not show defendant using force or violence
before he ran out of view. Though r unning away was resisting , and enough to violate
section 148, subdivision (a)(1) , ( People v. Christopher (2006) 137 Cal.App.4th 418 , 431 [“ ‘ Section 148 is most often applied to the physical acts of a defendant. [Citation.] For example

. . . running away from a police officer ’ ”]), the People do not contend defenda nt used force to run a way that could justify a section 69 violation by itself

. A fter running out of view of Utterback’s patrol vehicle , defendant is heard saying several times he is not combative, he is not fighting, and he is giving up. This is
substant ial evidence defendant continued to not forcefully resist after Utterback shot him
with his Taser . And the credibility of these statements is bolstered b ecause the

statements were made while the arrest was happening. ( People v. Garcia (1986)
178 Cal.App.3d 814, 820 [“ In general, the closer in time the declaration is to the event to which it refers the less likely it is to be the product of reflection and fabrication ”].) There is also evidence any force defendant used was reasonable in response to Utterback ’ s excessive force. E xcessive force is a defense to violations of both section s 69 and 148 because “ ‘ [t]he lawfulness of the officer ’ s conduct is an essential element of the offense of resisting, delaying, or obstructing a peace off icer. [Citation.] ’ ” ( People v. Williams (2018) 26 Cal.App.5th 71, 82.) Officers are entitled to use “objectively
reasonable force ” in making an arrest, including in response to forceful resistance. (§ 835a, subd. (b).) Conversely , u nder the Fourth Am endment of the United States Constitution, force is excessive if the amount of force used by officers when making an arrest “was objectively unreasonable given the circumstances they faced.” ( Allgoewer v. City of Tracy (2012) 207 Cal.App.4th 755, 763.)6

Utterback admitted that he sat on top of defendant, slamm ed his he ad into the ground, and punch ed him in the face. Utterback also said , “I’m going to start fucking

you up , ” and the pictures showed defendant with a blood y face. The jury could have reasonably believed Utterback’s force was excessive and that defendant’s struggling was
reasonable to protect himself from this excessive force. This is supported by Utterback’s own testimony that defendant told him he resisted because he panicked after Utterback
slammed his head into the ground and because he couldn’t breathe

. Though Utterback
said his use of force was in response to defendant ’ s attempts to resist, and arrestees often
lie about their actions, jurors are not required to either believe or disbelieve a witness entirely. ( In re Daniel G. (2004) 120 Cal.App.4th 8 24, 830 .) Th us, though a ny excessive force would not justify defendant ’ s initial flight , it c ould be justification for any force he used after the flight , resulting in a violation of section 148 and not section 69.
In sum , considering the evidence in favor of defendant as we must , there is substantial evidence defendant either did not use any force, or if he did, it was reasonable force in response to Utterback ’ s unlawful force. It was therefore error to not instruct on
th e lesser included offense. We must now consider whether this error was prejudicial

. Error in failing to
instruct on a lesser included offense does not warrant reversal unless an examination of the entire cause, including the evidence, discloses that “it appears ‘reasonably probable’ the defendant would have achieved a more favorable result had the error not occurred.” ( People v. Breverman , supra , 19 Cal.4th at p. 149.) “A reasonable probability in this context does not mean more likely than not; it mean s a reasonable chance and not merely a theoretical or abstract possibility.” ( People v. Woods (2015) 241 Cal.App.4th 461, 474.)
T he evidence supporting the greater offense was not overwhelming. The precise
line between section 69 and section 148 is not readily apparent

. O n one end of the spectrum is violently punching or hitting an officer, which is clearly force sufficient for a7

section 69 violation. (See People v. Smith, supra , 57 Cal.4th at p. 245.) On the other end of the spectrum are minor physical acts justifying a section 148 violation , such as refusing orders to sit down

. (See People v. Williams, supra, 26 Cal.App.5th at p. 92 .) Somewhere in the middle is physically struggling. There ar e cases finding physical struggling with an officer in certain circumstances enough for a section 69 violation. (See People v. Carrasco (2008) 163 Cal.App.4th 978, 985

- 986.) But there are cases finding a section 148 violation appropriate with some physical resistance , such as struggling to pull away from an officer who has grabbed the person’s arm . (See In re Gregory S. (1980) 112 Cal.App.3d 764, 771, 778 .) We need not decide exactly where a section 148 violation ends and a section 69
violation be gins because the re is evidence in this case straddl ing both sides. There is substantial evidence supporting the greater offense, contrary to defendant’s arguments , because Utterback testified to several instances of defendant’s force. This included at
le ast when defendant pushed him off his back, so he summersaulted, and then when Utterback attempted to stand up defendant pushed him back. The pictures of Utterback with scratches to his knuckles and knees could support this version of the struggle.
Utter back also testified he used only as much force as necessary to effectuate the arrest
and that arrestees often make false statements to try and get away.
But w e cannot find t h is evidence overwhelmingly supports a section 69
conviction , given that we must consider the evidence in the light most favorable to
defendant. The other evidence

— the audio and pictures

— were at best ambiguous. The audio consisted of struggling noises, the defendant pleading with Utterback that he was
not combative and could not breathe, and Utterback physically threatening defendant while telling him to relax and stop fighting. The pictures from the scene show a bloodied defendant and Utterback with some minor cuts. And though Utterback testified to defendant’s unreasonable fo rce, he also admitted to several acts of force against
defendant that a reasonable juror could find constituted excessive force.8

The totality of the evidence could reasonably support reaching any of the following finding s : (1) defendant’s resistance fell on the section 148 side of physically struggling; (2) defendant used reasonable force in response to Utterback’s excessive force; or (3) defendant used unreasonable force to resist. Only the last option supports a
section 69 co nviction. Thus, there is a reasonable probability defendant would have been
convicted of the lesser offense had the jury been properly instructed. This error was therefore prejudicial, requiring reversal

. B ecause there is substantial evidence for the
gr eater offense, “ we give the prosecutor the option of retrying the greater offense, or accepting a reduction to the lesser offense .” ( People v. Kelly (1992) 1 Cal.4th 495, 528 .) And since defendant will be resentenced regardless of the prosecutor’s choice , we do not
address defendant’s additional arguments challenging his sentence.
DISPOSITION We reverse the judgment. In the trial court, t he People must file an election within 30 days of the issuance of our remittitur either to retry defendant for a violation of Penal
Code section 69 or to accept a reduction of this count to a violation of Penal Code
section 148, subdivision (a)(1) , after w hich the trial court m ust resentence defendant.

/s/ MESIWALA , J.

We concur:

/s/ ROBIE, Acting P. J.

/s/ DUARTE , J.