1

Filed 3/24/21

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN WESLEY SOUTHARD,

Defendant and Appellant.

 A157236

(Del Norte County Super. 

Ct. No. CRF-19-9002)

Defendant John Wesley Southard was involved in two traffic stops a 

week apart in December 2018, the first as a driver in a pickup truck, the 

second as a passenger in a car driven by a friend. As a result of defendant’s 

interaction with officers from the California Highway Patrol (CHP) and the 

Crescent City Police Department, he was charged with seven counts of 

obstructing a peace officer and forcible resistance of an officer—charges that 

require the People to prove the officers were acting lawfully—and one 

misdemeanor count of possession of methamphetamine. Following a 

relatively brief trial and relatively lengthy deliberations, defendant was 

convicted on all charges. He was sentenced to five years four months in 

prison, and also assessed thousands of dollars in fines.

Defendant’s appeal makes five arguments, the first three of which 

assert instructional error, that the trial court: (1) gave a special instruction 

based on language from an appellate opinion that acted to remove the lawful 

performance element of the resisting charges; (2) gave CALCRIM No. 250 
2

that acted to remove the knowledge element of the charged offenses; and 

(3) failed to give a unanimity instruction. We agree with defendant’s first 

two arguments, and conclude the errors were prejudicial. We thus reverse 

the convictions without the need to address the remaining arguments. And 

we publish the opinion, to remind trial courts of the danger of instructing a 

jury with language from an opinion that has nothing to do with jury 

instructions.

BACKGROUND

Introduction

Defendant was charged with eight counts, seven of which were for 

forcible resisting arrest and obstructing a peace officer arising out of his 

conduct in traffic stops on December 18 and December 25, 2018. Three 

officers testified about what occurred at the first stop, one of whom, Brenton 

Dunaj, testified over two days, giving testimony that was anything but 

consistent. Indeed, at one point in his briefing, the Attorney General himself 

describes the officer’s testimony as “admittedly confused,” such that “the 

potential existed for jurors to find an illegal detention”; at another point the 

Attorney General describes Dunaj’s testimony as “confusing.” The Attorney 

General’s candor is spot on, as the examination of Dunaj revealed. 

The December 18 Incident

At about 3:00 a.m., CHP Officers Dunaj and Spencer Good were 

patrolling Highway 101 in an area where the highway is a two-lane road. 

Dunaj was driving. As their vehicle proceeded south, they observed a pickup 

truck heading north at about 35 miles per hour in a 55 mile per hour zone, 

while straddling the white line separating the roadway from the shoulder. 

Driving at a slow speed was not a traffic violation, as Highway 101 did not 

have a minimum speed limit in that area. However, Dunaj testified, driving 
3

with tires over the line is a violation of the Vehicle Code. Moreover, because 

vehicles usually drive in the center of the lane at about the speed limit, the 

officers were suspicious the driver was under the influence. 

When the pickup truck passed them, Dunaj made a U-turn and, as the 

prosecutor would describe him at trial, appearing a “little eager,” said to 

Good: “Let’s see what kind of trouble we can get into.” And, Good added, the 

stop was to be consensual. After Dunaj turned around and began driving in 

the pickup’s direction, the pickup pulled to the side of the road. Then Dunaj 

turned his lights on—which he admitted transformed the stop into a 

detention requiring reasonable suspicion—after which they noted that the 

registration was expired. 

This is how the Attorney General’s brief describes the setting: “Driving 

with an expired registration tags [sic] also violates the Vehicle Code.

[Citation.] The officers discussed having a consensual encounter with the 

driver by not activating their lights, but after Officer Dunaj saw the expired 

registration tag, he effected a detention by activating them. Officer Good 

testified that even though driving over the white line made the officers 

suspect the driver was impaired, in a consensual encounter they would still 

be able to observe the driver for signs he was intoxicated such as a smell of 

alcohol or red, watery eyes. If the driver seemed to be impaired the officers 

would tell him he was being detained. [Citation.] . . . The officers had a 

reasonable suspicion the driver was impaired from the combination of the 

slow speed, driving over the white line, and the time of night. [Citation.]

“Based on the expired registration tag and his concern that the driver 

of the pickup truck was under the influence, Officer Dunaj activated his 

patrol car lights to direct the driver to pull over. [Citation.] . . . 
4

“Officer Dunaj testified that his reason for activating his lights was for 

a violation of Vehicle Code section 21658 (requiring a driver to drive within a 

single lane), although that statute applies only to roadways with two or more 

lanes in one direction. [Citation.] In his report, Officer Dunaj did not list a 

violation of Vehicle Code section 21658. The first listed violation was Vehicle 

Code section 22107, because Officer Dunaj considered driving over the line 

marking the edge of the roadway to be an unsafe movement.”

After being pulled over, defendant got out of the pickup. The officers 

ordered him to get back in. But defendant took off running, and ran 

approximately two hundred feet before he tripped and fell. Dunaj got on top 

of defendant to hold him down and Good arrived “within seconds.” Deputy 

Wade Owen, who was responding to a call for assistance, testified that he 

saw Good and Dunaj chasing defendant, and it took him “a few seconds” after 

he stopped to catch up to the group. Dunaj used his taser to “drive-stun” 

defendant a number of times, and the officers then arrested defendant. 

Owen’s body camera captured the incident.

On direct examination, Dunaj testified that defendant’s right hand was 

free, and appeared to be reaching towards his right pocket in which two 

folding knives, each with a three-inch blade, were later found.1 On crossexamination, Dunaj was shown Owen’s body camera footage showing that,

contrary to Dunaj’s testimony and his report, he actually had defendant’s 

right hand in a control hold the entire time. Dunaj then testified that 

defendant was reaching for his flashlight and possibly to his right pocket in 

the 10 to 20 seconds before Owen’s arrival. Six pages later, Dunaj changed 

his testimony, testifying that defendant’s hand was underneath his body, not 

visible, and he could not say if it was going towards defendant’s right pocket. 

1 The knives were legal, and defendant never pulled them out. 
5

Good testified that he observed defendant’s left arm to be underneath 

his body. Owen testified that while defendant’s hand was behind his back, it 

was unclear what he was specifically reaching for. He also testified that 

when he got there, Dunaj had defendant’s right hand “out and to the side.” 

And despite Dunaj’s testimony that they pulled defendant over for 

three purported Vehicle Code violations, Dunaj admitted that “only one of 

[them] seem[ed] to factually apply,” and it was an “infraction.”

2

The December 25 Incident

On December 25, Christmas, defendant was, along with his minor son, 

a passenger in an older model Volvo driven by David Bonde. Defendant was 

in the front passenger seat, his son in the back. At a little after 7:00 p.m., 

CHP Officer Tyler Krueger observed that the license plate lights on the Volvo 

were not working, and pulled the car over in a supermarket parking lot. As 

Krueger approached the car, he recognized defendant, as he had heard 

“stories” about him, and was aware of the December 18 incident—knowledge, 

Krueger would come to testify, that affected how he dealt with defendant 

during the traffic stop.

Krueger asked Bonde for his license, registration, and insurance.

3

 

Krueger asked defendant for his full name and date of birth, and defendant 

asked why Krueger “was messing with” him. Krueger admitted he did not 

demand that defendant identify himself because at the point he was not 

aware of anything defendant had done wrong. 

2 To further add to the confusion, in their testimony, but not in the 

police reports, Dunaj and Good claimed they believed defendant may have 

been intoxicated. 

3 Bonde’s license came back as suspended, a misdemeanor, but Krueger 

did not cite him. 
6

Krueger testified he wanted to run a warrant check and hoped to keep 

the conversation calm while he did. Defendant told Krueger he had recently 

been released from jail, and Krueger testified that although a person would 

not be released from jail if there was an outstanding warrant unless they had 

been given a court appearance date, he requested a warrant check because 

something could have come up after defendant’s release. 

Defendant unbuckled his seat belt, and moved his hand to the center 

console. Krueger told defendant to put his seat belt back on. Defendant said 

he had not done anything, and appeared to Krueger to be digging for 

something on his left side. Krueger asked him what he was digging for and,

concerned that defendant was trying to grab something or run off, called for 

backup. 

CHP Officer Brian Wilson arrived as backup, and was told by Krueger 

he was concerned defendant would “foot bail.” Wilson made “small talk” with 

defendant, who among other things asked whether they could just let him go 

as it was Christmas. 

Meanwhile, Krueger received advice from dispatch that defendant had 

a felony warrant, and requested more backup.4 CHP Officer Levi Sackett 

responded, and asked Bonde for the keys, which Sackett put on the roof of the 

car. 

Krueger ordered defendant to get out of the car. Defendant refused, 

and continued reaching to his left. Wilson went to the driver’s side and 

ordered Bonde to get out. Defendant pushed the door lock down several 

times, and continued to refuse orders to exit, telling the officers he did not 

have a warrant, that he had just been released from jail. 

4 Though dispatch confirmed the warrant, Krueger never asked 

dispatch to confirm whether defendant had recently been in jail and released. 
7

More officers arrived, including from the Crescent City Police 

Department, one of whom was Officer Gene Votruba with his German 

Shepherd Django. Votruba told Wilson to get defendant’s son out of the car. 

Defendant reached back, put his hand on his son’s knee and told him to stay 

in the car; his son replied, “Dad, get out of the car.” He did not. The officers 

were ultimately successful in getting defendant’s son out of the car, and 

Bonde too was able to get out. Meanwhile, defendant began to get louder and 

more verbally aggressive. 

Wilson testified he saw a knife by defendant’s left side. Wilson walked 

to the passenger side, and as he did defendant moved his body toward the 

driver’s side to try to close the door, but Wilson and Votruba were able to 

keep the driver’s door open. And then Vortuba released Django, commanding 

him to “foss,” German for “take-hold” or bite. And he did. 

As Django began to chew on defendant, Sackett broke the right front 

passenger side window. When this happened, defendant moved back into the 

passenger seat and began “flailing.”5 Krueger joined Sackett and Wilson at 

the passenger side window and swung his baton, a 20-to-24-inch metal baton, 

at defendant at least six times, testifying he believed he only hit defendant 

twice—this, with defendant pleading, “why are you beating on me?” Then, 

after several dog bites and Krueger’s strikes with the baton, Sackett, 

Krueger, and Gale all tased defendant.

6 This eventually caused defendant’s 

muscles to lock up, and the officers pulled him out of the car. Then, as the 

5 The Attorney General’s brief asserts that defendant “retreated into 

the vehicle and grabbed glass from the window,” and “began using both 

hands to throw glass at the officers.” Some officers testified defendant was 

throwing glass at them; others felt defendant was hitting the glass window. 

6 At one point, Sackett and Gale deployed their tasers at the exact same 

time, which would have introduced a significant amount of electricity into 

defendant’s body, perhaps as much as 100,000 volts. 
8

video shown to the jury revealed, officers put knees on defendant’s neck and 

back, with defendant screaming, “I can’t breathe, I can’t breathe,” “That’s 

illegal,” and “you’re killing me.” 

Defendant was handcuffed, after which he was placed on his side in a 

recovery position. And because of defendant’s exclamation that he could not 

breathe, he was given oxygen and medical attention. He was then 

transported to a hospital with scrapes and puncture wounds to his left arm 

and shoulder and a bite wound to his right hand. 

No officer testified that defendant made any threats or brandished a 

weapon. Some specifically testified to the contrary. 

Ultimately, the officers found two knives on the ground, the one Wilson 

had observed and another. They also recovered a small canister from 

defendant’s belt, which the parties stipulated contained a usable amount of 

methamphetamine. 

The only defense witness was Sergeant Tiffany Williams from the Del 

Norte County Jail, who testified that defendant was booked into the jail on 

December 18 and released on December 21. Jail personnel are supposed to 

check for warrants prior to releasing a prisoner, and Williams signed 

defendant’s release form unaware of any warrants. Williams acknowledged 

she did not personally check for warrants, and there was a lot of new staff, so 

Williams could not be certain a warrant check had occurred. Also, if a 

warrant had been issued by a federal judge on December 21, it could take a 

few days for it to be processed into the system, and it was possible the 

warrant was not in the system until sometime after defendant was released. 

The Proceedings Below

On March 21, 2019, the Del Norte County District Attorney filed a 

second amended information charging defendant with eight counts, three 
9

felonies and five misdemeanors: count 1: resisting a peace officer by force 

(Pen. Code, § 69)7 on December 18 against Officer Dunaj; count 2: resisting 

with force (ibid.) on December 25, against Officer Krueger; count 3: resisting 

with force (ibid.) on December 25, against Officer Sackett; count 4:

misdemeanor resisting arrest (§ 148, subd. (a)(1)) on December 18, against 

Officer Dunaj; count 5: misdemeanor resisting arrest (ibid.) on December 18 

against Officer Good; count 6: misdemeanor possession of methamphetamine 

(Health & Saf. Code, § 11377, subd. (a)) on December 25; count 7:

misdemeanor resisting arrest (§ 148, subd. (a)(1)) on December 25, against 

Officer Krueger; and count 8: misdemeanor resisting arrest (ibid.) on 

December 25, against Officer Vortuba. The information additionally alleged 

that defendant suffered two prison priors within the meaning of section 

667.5, subdivision (b). 

Opening statements and the People’s case began on March 25, and 

involved testimony on portions of three days, March 25, 26, and 27, testimony 

that as best we can reconstruct from the court minutes totaled some 12 

hours: one and one-half hours on the 25th, less than six hours on the 26th, 

and five hours on the 27th. Defendant’s brief defense was the next day, 

following which the court and counsel devoted several hours to settling 

instructions and exhibits. Closing arguments followed, and at 4:50 p.m. on 

March 28, the case was in the hands of the jury. 

Jury deliberations began on the morning of March 29, and lasted for 

almost six hours, during which time the jury requested to see two videos of 

the December 25 incident. The jury also asked this question about the law

concerning defendant’s “knowledge” as to count 6: “Would a reasonable 

7 All statutory references are to the Penal Code, unless otherwise 

indicated.
10

person know of Points 2 and 3 of Health and Safety Code section 11377 (a) or 

do we have to know definitively if the defendant knew what was in the 

canister or does that create reasonable doubt.” 

At 3:22 p.m., the jury returned its verdict convicting defendant on all 

eight counts. This was followed that day by a bench trial where the court 

found true one of the two prison prior allegations. 

On May 6, the trial court sentenced defendant to a sentence of five 

years four months, calculated as follows: the aggravated term of three years 

on count 1, consecutive to eight months (one-third the middle term) on both 

counts 2 and 3, plus one year for the prison prior. The court additionally 

imposed several thousand dollars in fines and fees. 

DISCUSSION

The Standard of Review

As mentioned, defendant’s first three arguments assert instructional 

error, a claim we review de novo. (People v. Waidla (2000) 22 Cal.4th 690, 

733.) This standard is applicable in “assessing whether instructions correctly 

state the law [citations], . . . and also whether instructions effectively direct a 

finding adverse to a defendant by removing an issue from the jury’s 

consideration.” (People v. Posey (2004) 32 Cal.4th 193, 218.) And in 

reviewing a claim of instructional error, we must consider whether there is a 

reasonable likelihood the trial court’s instructions caused the jury to 

misapply the law in violation of the Constitution. (Estelle v. McGuire (1991) 

502 U.S. 62, 72, fn. 4; People v. Lucas (2014) 60 Cal.4th 153, 287; People v. 

Frye (1998) 18 Cal.4th 894, 957.)

That review leads to the conclusion there was instructional error

here—error that was prejudicial.
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The Special Instruction Was Error

All seven of the obstruction and resisting arrest counts required the 

People to prove beyond a reasonable doubt that the officers were lawfully 

performing their duties at the time defendant resisted. Thus, the trial court 

properly gave CALCRIM No. 2652 for misdemeanor resisting arrest and 

CALCRIM No. 2656 for resistance by force, both of which in the course of 

their lengthy text require the People prove that “when the defendant acted, 

the officer was performing his lawful duty,” and both of which go on to 

instruct that “[a] peace officer is not lawfully performing his or her duties if 

he or she is unlawfully arresting or detaining someone or using unreasonable 

or excessive force in his or her duties. Instruction 2670 explains when an 

arrest or detention is unlawful or when force is unreasonable or excessive.” 

The jury was also instructed with CALCRIM No. 2670, that “a peace 

officer is not lawfully performing his or her duties if he or she is unlawfully 

arresting or detaining someone or using unreasonable or excessive force in 

his or her duties.” 

So far, so good. Then, on the very next page, the court gave this 

instruction:

“An individual’s decision to commit a new and distinct crime, even if 

made during or immediately after an unlawful detention, is an intervening 

act sufficient to purge the ‘taint’ of a theoretically illegal detention. If you 

believe that the defendant was acting lawfully and that the police detained 

him unlawfully, a defendant’s subsequent conduct in obstructing, resisting, or 

delaying the officers, if it occurred, can be an independent act that dissipated 

the taint from the initial unlawful seizure. [¶] If there was unlawful 

detention, you may conclude that a choice to flee or to resist arrest are 
12

independent intervening acts sufficiently distinct from an illegal detention to 

dissipate the taint of an illegal detention.” 

The genesis of this instruction is not definitively shown by the record, 

though we surmise from the colloquy it was submitted by the People. 

Regardless, the Attorney General’s brief describes this special instruction as 

“a correct statement of law pursuant to People v. Cox (2008) 168 Cal.App.4th 

702.” For his part, defendant says the “language of this instruction was 

pulled nearly verbatim” from In re Richard G. (2009) 173 Cal.App.4th 1252, 

1262. But whatever its origin, the instruction has no place here, as both 

cases involved motions to suppress, not jury instructions.8 So, while the 

instruction may be an accurate quotation from Richard G. or Cox, the 

instruction is a misstatement of law in the context of this case: It had the 

effect of undermining defendant’s defense that he was unlawfully stopped 

during the first incident and unlawfully beaten during the second, not to 

mention that it eliminated one of the elements of the crime the People were 

required to prove—lawful activity by the officers.

As our Supreme Court has observed, in order to be “perform[ing] a 

lawful duty,” the officer must be acting lawfully. (In re Manuel G. (1997) 

16 Cal.4th 805, 818; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) “The 

lawfulness of the officer’s conduct is an essential element of the offense of 

8 For example, in In re Richard G., defendant punched a police officer 

after he was stopped. He argued that, because the stop violated his Fourth 

Amendment rights, evidence that he punched the officer had to be suppressed 

as a fruit of the poisonous tree. The Court of Appeal rejected this argument 

generally in the language quoted in the jury instruction above, after citing a 

long line of cases holding that the policy reasons for excluding evidence for 

Fourth Amendment violations are hardly served by excluding evidence of a 

defendant’s subsequent acts of violence against police. (In re Richard G., 

supra, 173 Cal.App.4th at pp. 1252–1254, 1260–1263.) People v. Cox, supra, 

168 Cal.App.4th 702 is similar.
13

resisting . . . a peace officer.” (In re Chase C. (2015) 243 Cal.App.4th 107, 

115.) As one Court of Appeal put it in a section 148 case, “[I]f a defendant is 

charged with violating section 148 and the arrest is found to be unlawful, a 

defendant cannot be convicted of that section,” adding that an unlawful 

arrest includes both one made without legal grounds and one made with 

excessive force. (People v. White (1980) 101 Cal.App.3d 161, 166–167.) 

Another court has noted that the trial court has a sua sponte duty to instruct 

that the defendant is not guilty of the offense charged if the arrest was 

unlawful. (People v. Olguin (1981) 119 Cal.App.3d 39, 46–47.) And another 

noted that, on request, the court must instruct that the prosecution has the 

burden of proving the lawfulness of an arrest beyond a reasonable doubt. 

(People v. Castain (1981) 122 Cal.App.3d 138, 145.) 

In short, if the arrest is unlawful, the defendant may not be convicted 

of violating of section 69 or section 148. Despite that, the instruction here 

acted to revive any unlawful conduct by the officers, to “dissipate the taint of 

it”—to “purge” it. It was a plain misstatement of law in the circumstances 

here. It was error.

People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer) is instructive. 

There, Maurer was charged with several violations of section 647.6, unlawful 

sexual contact with a minor. The trial court instructed on the elements of the 

crime, including that defendant had to be “ ‘motivated by an unnatural or 

abnormal sexual interest . . . .’ ” (Maurer, at p. 1125.) This was followed 

immediately by the trial court instructing the jury that “ ‘[m]otive is not an 

element of the crime charged and need not be shown.’ ” (Ibid.) Maurer was 

convicted on two counts, which the Court of Appeal reversed, rejecting the 

state’s arguments that these instructions did not “cancel” one another out. 

To the contrary, the court concluded the second instruction directly 
14

contradicted the first instruction on the mental state of the charged crime, 

and was therefore improper. (Id. at pp. 1126–1127.)

Likewise here. The jury was properly instructed on the elements of the 

charged offenses, including the requirement that the officers were engaged in 

the lawful performance of their duties at the time of the offenses. But just as 

in Maurer, supra, 32 Cal.App.4th 1121, the trial court also gave a separate—

and wholly contradictory—instruction on the lawful performance element, 

this time telling the jury that the defendant’s actions “after an unlawful 

detention, is an intervening act sufficient to purge the taint of a theoretically 

illegal detention,” to “dissipate the taint.” In no uncertain terms, this allowed 

the jury to find that officers were acting unlawfully, that defendant resisted, 

and that this resistance transformed the officers’ unlawful conduct into 

lawful conduct.

Use of language from a case involving a motion to suppress as a basis 

for a special jury instruction here was improper, as trial courts have been told

for decades. More than 50 years ago, Division One of this court observed that 

what the trial court did here was a “dangerous practice” that had been 

“frequently criticized by courts.” (Fibreboard Paper Products Corp. v. East 

Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718 (Fibreboard).) 

Justice Kaus cited Fibreboard in support of his court’s observation that to 

“instruct juries by the use of quotations from appellate opinions taken out of 

context is to court disaster.” (People v. Ramirez (1974) 40 Cal.App.3d 347, 

355.)

The Supreme Court weighed in on this in People v. Colantuono (1994) 

7 Cal.4th 206, 221, fn. 13, observing as follows: “Indeed, this case illustrates 

the danger of assuming that a correct statement of substantive law will 

provide a sound basis for charging the jury. (See People v. Smith (1989) 
15

214 Cal.App.3d 904, 912–913; People v. Adams (1987) 196 Cal.App.3d 201, 

204–205; see also People v. Gibson (1965) 235 Cal.App.2d 667, 669.) The 

discussion in an appellate decision is directed to the issue presented. The 

reviewing court generally does not contemplate a subsequent transmutation 

of its words into jury instructions and hence does not choose them with that 

end in mind. We therefore strongly caution that when evaluating special 

instructions, trial courts carefully consider whether such derivative 

application is consistent with their original usage. . . .’ ”

More recently, we ourselves confirmed all of this, in People v. Hunter 

(2011) 202 Cal.App.4th 261, 277–278, where our Presiding Justice Kline 

distilled the criticism this way: “The challenged instruction was given in this 

case because, as in People v. Colantuono (1994) 7 Cal.4th 206, the trial judge 

much too quickly assumed ‘that a correct statement of substantive law will 

provide a sound basis for charging the jury.’ (Id. at p. 221, fn. 13; accord 

People v. Adams (1987) 196 Cal.App.3d 201, 204–205 [‘Language in an 

appellate court opinion which may be a good statement of law or of the 

reasoning of the appellate court does not necessarily make a good jury 

instruction’]; see People v. Smith (1989) 214 Cal.App.3d 904, 912–913; 

People v. Ramirez (1979) 40 Cal.App.3d 347, 355; People v. Hudgins (1967) 

252 Cal.App.2d 174, 183; People v. Odom (1937) 19 Cal.App.2d 641, 649.) 

But, as this case shows, ‘[t]he discussion in an appellate decision is directed 

to the issue presented. The reviewing court generally does not contemplate a 

subsequent transmutation of its words into jury instructions and hence does 

not choose them with that end in mind.’ (People v. Colantuono, at p. 221, 

fn. 13.) For this reason, our Supreme Court has strongly cautioned ‘that 

when evaluating special instructions, trial courts carefully consider whether 
16

such derivative application is consistent with their original usage.’ (Ibid.) 

The trial judge in this case neglected to make that necessary inquiry.” 

Giving this special instruction was error. Likewise giving CALCRIM 

No. 250.

The Instruction on Mental State Was Error

All eight counts with which defendant was charged had an element 

dealing with his mental state. As to the three resisting with force counts, the 

jury was told that the People had to prove beyond a reasonable doubt that 

defendant “knew the executive officer was performing his duty.” As to the 

four resisting without force counts, the jury was instructed the People must 

prove defendant “knew, or reasonably should have known, that the peace 

officer was a peace officer performing or attempting to perform his duties.” 

And as to the possession of methamphetamine count, the jury was instructed 

that the People had to prove beyond a reasonable doubt that defendant “knew 

of [the drug’s] presence” and “knew of the substance’s nature or character as 

a controlled substance.” 

Despite that, the jury was then given another, and contradictory,

instruction, CALCRIM No. 250, which instructed the jury it could convict 

defendant on all counts solely if it found “he intentionally [did] a prohibited 

act; however, it is not required that [he] intended to break the law”—an 

instruction, we are constrained to note, given despite the express boldface 

warning in the use notes that “[T]his instruction must not be used if the 

crime requires a specific mental state, such as knowledge . . . , even if the 

crime is classified as a general intent offense.” (Bench Notes to CALCRIM 

No. 250.)

Defendant’s mental state was hotly contested. For example, as to the 

first incident, defense counsel argued at length the various grounds 
17

defendant had to believe the officers were not lawfully performing their 

duties. As to the second incident, counsel argued that, as defendant said, he 

had no warrant as he had just been released from jail, also focusing on the 

officers’ conduct as they beat him with the baton and tased him, all while he 

was under attack by Django. And it was similar as to the methamphetamine 

possession charge, a knowledge issue the jury itself homed in on, asking the 

question quoted above.

The Errors Were Prejudicial

Turning to the first instruction error, the giving of the special 

instruction, “The failure to instruct on the elements of a charged crime is 

serious constitutional error that impacts a defendant’s fundamental right to a 

jury trial.” (People v. Merritt (2017) 2 Cal.5th 819, 821.) Such error violates 

a defendant’s due process rights. (See generally United States v. Gaudin 

(1995) 515 U.S. 506, 512–515; Maurer, supra, 32 Cal.App.4th at p. 1128.) As 

Maurer held, the removal of an element of the crime—there, defendant’s 

mental state—constitutes a denial of federal due process and invokes “the 

Chapman ‘beyond a reasonable doubt standard’ for assessing prejudice.” 

(Maurer, supra, 32 Cal.App.4th at p. 1128, citing People v. Guiton (1993) 4 

Cal.4th 1116, 1130; People v. Lee (1987) 43 Cal.3d 666, 673–674; and 

Chapman v. California (1967) 386 U.S. 18, 24.) And in order to meet this 

burden, the People must prove beyond a reasonable doubt that the omitted 

element was “uncontested” and “supported by uncontroverted evidence” 

(Neder v. United States (1999) 527 U.S. 1, 17–18), a burden, Neder added, the 

People cannot carry where “the defendant contested the omitted element and 

raised evidence sufficient to support a contrary finding.” (Id. at p. 19.) 

That, of course, is the situation here, where the lawful performance 

element of the resisting charges was contested as to both incidents. As to the 
18

first incident, the contest was based in part, as the Attorney General 

concedes, on testimony that was “admittedly confused” such that “the 

potential existed for jurors to find an illegal detention,” and included defense 

counsel’s argument that the Vehicle Code violations Dunaj claimed to have 

observed never happened. And as to the second incident, counsel focused on 

the excessive force involved, with rhetorical flourishes such as: “What does 

he do next that justifies the nuclear option of a dog whose only purpose is to 

bite him? What has he done to justify having a metal baton swung at his 

body six successive times with forethought, with intent and power? What has 

he done to justify having two separate TASERs deployed from the same side 

of the car at the same time?” 

Lawful performance was hardly “uncontroverted” or “uncontested.” 

And it was contested for good reason, including Dunaj’s inconsistent 

testimony; his admissions; the video of the first incident, which shows the 

conduct of the officers as defendant screams at one point, “Why are you 

beating on me?”; and the video of the second incident where, after pulling

defendant out of the car, they put their knees on defendant’s neck and back, 

all while he screams, “I can’t breathe! That’s illegal,” and, “You’re killing 

me!” 

Turning to the second instructional error, the conflicting instructions 

on defendant’s knowledge, this too was a significant part of the defense,

including as to the first incident, that defendant had committed no traffic 

infractions. And as to the second incident, counsel pointed to defendant’s 

belief that, contrary to what officers were saying, he did not have a warrant 

given his recent release from jail. Further, it was reasonable that 

defendant—being bitten, beaten, and tased—could hold a belief that officers 

were not acting in the performance of their duties while doing this to him. 
19

Finally, as to count 6, possession of methamphetamine, defense counsel 

devoted pages of his closing argument to the knowledge element. The 

knowledge element was anything but “uncontested,” and the jury’s question 

shows that the evidence was hardly overwhelming. Superimposed on all of 

this is the fact the jury deliberated for nearly six hours, during which they 

asked to view two videos. This shows a close case. (People v. Woodard (1979) 

23 Cal.3d 329, 341 [deliberations nearly six hours demonstrate “guilt . . . was 

far from open and shut”].)

In light of our conclusions above, we need not address defendant’s 

remaining claims, as those issues may or may not be pertinent in the event

defendant is retried. And we will not offer any guidance on defendant’s claim 

that the jury must be instructed on unanimity, other than to refer to the use 

notes of CALCRIM No. 2656: “If the prosecution alleges multiple, distinct 

acts of resistance, the court has a sua sponte duty to instruct on unanimity.” 

DISPOSITION

The judgment is reversed.
20

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

People v. Southard (A157236)
21

Trial Court: Del Norte County Superior 

Court

Trial Judge: Honorable Darren McElfresh

Attorney for Plaintiff and 

Respondent The People:

Attorney General of California, 

Xavier Becerra; Chief 

Assistant Attorney General, 

Lance E. Winters; Senior 

Assistant Attorney General, 

Jeffrey M. Laurence; 

Supervising Deputy Attorney 

General, Catherine A. Rivlin; 

Deputy Attorney General, 

Bruce M. Slavin

Attorney for Defendant and 

Appellant John Wesley 

Southard 

By Appointment of First 

District Appellate Project 

Independent-case System, 

Rudolph J. Alejo.