103 Cal.App.5th 488
Cal. Ct. App.2024Background
- Defendant, Henry Morgan, was involved in a confrontation with police where, after being ordered to the ground, he retrieved an unloaded gun from his car, pointed it at officers, and pulled the trigger.
- Officers believed they were in imminent danger and used significant resources to subdue and arrest Morgan, who was ultimately apprehended after a car and foot chase.
- Defendant admitted drug-induced paranoia and stated he hoped officers would shoot him ("suicide by cop"), but stated he did not know if the police were officers or impersonators.
- The jury convicted Morgan of resisting an officer by force or violence (Penal Code § 69) and several related offenses; he was sentenced to seven years, four months in prison, with a firearm enhancement, but was found not guilty of assault with an unloaded firearm.
- On appeal, Morgan argued that since his gun was unloaded, he could not have committed assault, which he claimed is a lesser included offense of the resisting charge, and thus challenged both his conviction and sentencing under recent amendments to sentencing law (Senate Bill 567).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether resisting arrest by force or violence (§ 69) requires the force to qualify as assault, i.e., with a loaded gun | Any violent or forceful resistance that impedes officers fits § 69, regardless of whether the act constitutes assault | Assault is a lesser included offense of § 69; since his gun was unloaded, he could not assault, and thus not violate § 69 | Court held § 69 does not require assault; "force or violence" in § 69 has ordinary meaning and need not involve actual assault or contact |
| Whether conviction under § 69 is supported by evidence when the gun was unloaded | Jury could reasonably find pointing an unloaded gun at police is violent and obstructive regardless of operability | No evidence gun was loaded; no ability to commit violent injury, so no violent resistance | Conviction affirmed; the conduct was violent/forceful in the statutory sense, even if the gun was unloaded |
| Whether the trial court properly considered aggravating factors not found by a jury or admitted for sentencing under amended § 1170 | Did not contest use of prior convictions and others as aggravators under amended law | Court relied on factors not all found by jury; argues this violated new sentencing rules | Court found partial error: remanded for resentencing for improper "dual use" of gun enhancement both as aggravator and enhancement |
| Whether the same fact (gun use) can be used to both aggravate base term and as an enhancement | Can be used if supported by substantial independent evidence | "Dual use" violated sentencing statutes and rules | Court agreed with defendant: remanded for resentencing due to improper dual use |
Key Cases Cited
- People v. Smith, 57 Cal.4th 232 (Cal. 2013) (section 148, resisting a peace officer, is a lesser included offense of section 69 when the second clause is charged)
- People v. Williams, 26 Cal.4th 779 (Cal. 2001) (explains the elements of assault under section 240)
- People v. Colantuono, 7 Cal.4th 206 (Cal. 1994) (discusses assault as inchoate battery)
- People v. Griffin, 33 Cal.4th 1015 (Cal. 2004) ("force" is to be given its common usage meaning unless the statute says otherwise)
- People v. Anderson, 64 Cal.2d 633 (Cal. 1966) ("force" and "fear" have no technical meaning and are presumed understood by jurors)
- People v. Marroquin, 210 Cal.App.3d 77 (Cal. Ct. App. 1989) (gun need not be operable or loaded for certain offenses)