I. FACTS AND PROCEDURAL BACKGROUND
Atkins was charged by information with attempting to deter an executive officer and resisting an executive officer ( § 69 ; count 1); misdemeanor possession of a weapon on school grounds (§ 626.10, subd. (b) (hereafter section 626.10(b) ); count 2); and misdemeanor resisting, obstructing, or delaying a peace officer (§ 148, subd. (a) (hereafter section 148(a) ); count 3).
In count 1, the information charged that "On or about [March 10, 2017], in the above named Judicial District, the crime of Resisting [an] Executive Officer, in violation of Penal Code Section 69, a Felony, was committed by Randall Patrick Atkins, who did unlawfully attempt by means of threats and violence to deter and prevent Officer Jack Calhoun, who was then and there an executive officer, from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of his/her duty." (Some capitalization omitted.)
Nathaniel Calhoun, the officer named in Count 1,
Just before 1:00 a.m. on March 10, Officer Calhoun was patrolling in his car in a parking structure located on the UC Santa Cruz campus. The parking structure was five or six stories tall, very well-lit, and had a spiral roadway inside it. When he was on the second story of the parking structure, Calhoun
Calhoun detained the man who had jumped off his skateboard and placed the skateboard on the hood of Calhoun's patrol car. The man who had skateboarded away, later identified as Atkins, came back yelling that Calhoun had tried to hit the men with his patrol car. Atkins took the skateboard off Calhoun's car, started walking away, and "said something to the effect that [UC Santa Cruz] were rent-a-cops and he didn't need to listen to [them]."
Officer Calhoun told Atkins to stop, but Atkins ignored Calhoun's command and continued to walk away. Calhoun grabbed Atkins's arm, but Atkins jerked his body away and broke free from Calhoun's grip. The other man and Atkins ran out of the parking garage and got into Atkins's truck, which was parked in a parking stall. Calhoun ran to the truck and stood behind it.
The engine of the truck went on. Atkins, who was in the driver's seat, rolled down his window and yelled that "he did nothing wrong, [and] would be forced to run [Calhoun] over if [he] didn't get out of his way of his car." Officer Calhoun perceived Atkins's statement as a "credible threat" that Atkins "would run [him] over if [he] didn't get out of his way." Fearing for his safety, Calhoun moved away, and Atkins drove away in the truck. Based on the truck's direction of travel, if Calhoun had not moved away, the truck would have hit him.
Officer Calhoun got back into his car and followed the truck. Another UC Santa Cruz officer, Officer Flippo, arrived and stopped the truck. Calhoun approached Atkins, who was still inside the truck, and grabbed Atkins's left arm. Atkins told Calhoun that he "had no right to search his vehicle and that we were rent-a-cops and we couldn't do anything to him." Calhoun told Atkins "multiple times" that he was a police officer.
Officer Flippo told Atkins that he was under arrest for "obstructing an officer." Atkins, who was agitated and uncooperative, was still sitting in the driver's seat of his truck. Flippo and Calhoun pulled Atkins out of the truck. Atkins lunged back toward the truck. Calhoun and Flippo "went hands-on and forced him to the ground." Atkins was physically resisting Calhoun and Flippo by tensing and bracing his arms and "refusing to put his hands behind his back." Calhoun and Flippo ordered Atkins to put his hand behind his back and to stop resisting. Another officer arrived, and they were able to handcuff Atkins. While handcuffed, Atkins was "flailing" his body, and Flippo had to put a "control hold" on him so that Calhoun could search him.
Ravinder Bal testified that, on March 10, 2017, she was working as a police officer with the UC Santa Cruz Police Department. She arrived on the scene to help Officer Calhoun and Sergeant Flippo arrest Atkins. She heard Atkins "yelling that it was an unauthorized stop, that we had no right to contact him, that everything was just illegal contact and that he knew his rights." Bal observed the physical struggle between Flippo and Atkins.
Atkins testified that he first saw Officer Calhoun when Atkins was skateboarding down the parking structure at approximately 20 miles per hour. Atkins thought Calhoun endangered his life by blocking the skateboarders' path of travel with his car when they were "hauling balls." Atkins told the jury, "there's no brakes on a skateboard, that's common knowledge." Atkins saw Calhoun's car but thought it was a "security car" and not a police car. Atkins acknowledged that the car was black and white but stated "security forces, cop cars, sheriff's units, they all have Crown Victoria[s]." Calhoun's car did not have any markings on it other than "[o]ne tiny yellow star on the side." Atkins believed that "skateboarding is not a crime." Atkins was "in full-on panic mode." Atkins had never seen any of the three officers before that evening.
Atkins acknowledged that he told Calhoun he would run him over with his truck, but "I didn't believe he was a cop, he was endangering my life." Atkins did not run Calhoun over, and Atkins did not intend to or want to run Calhoun over.
Atkins stated that Calhoun had pointed a taser at him, but "I thought he was a security guard. Security guards, they own guns, tasers, night sticks, all that and then some." Atkins agreed that Calhoun was dressed in a police uniform, but "[s]o are security guards at shopping malls." Atkins saw a "tin badge," but you can "buy some badges at the Dollar Tree." Atkins also did not believe that Calhoun was a police officer because Calhoun was by himself and "cops come in multiples." Calhoun identified himself to Atkins as a
The trial court gave the jury several instructions relevant to the section 69 charge. Neither counsel objected to the final wording of any of the instructions. The prosecution argued that the jury could find Atkins guilty of section 69 both because Atkins tried to prevent Officer Calhoun from performing a duty (by threatening to run Calhoun over with his truck while Calhoun was trying to detain him) and because Atkins physically resisted Calhoun (by pulling away from him multiple times while Calhoun was trying to arrest him). The trial court gave separate instructions on each theory. (CALCRIM Nos. 2651 and 2652.)
The trial court instructed, "The People have proceeded on two theories to establish a violation of Penal Code section 69 as charged in Count 1. Under [o]ne theory, the People have sought to prove that the defendant tried to prevent or deter an executive officer from performing that officer's duty." The trial court instructed the jury that, "under this theory, the People
For the second theory, that Atkins "resisted an executive officer in the performance of that officer's duty," the trial court instructed the jury that the People must prove that "[t]he defendant used force or violence to resist an executive officer"; "[w]hen the defendant acted, the officer was performing his lawful duty"; and "[w]hen the defendant acted, he knew the executive officer was performing his duty." This instruction also stated that "[a] peace officer is an executive officer," and "[a] sworn member of [the] University of California Police Department is a peace officer" (some italics omitted).
The verdict form for count 1 stated, "We the jury in the above-entitled case find the defendant, Randall Patrick Atkins, [guilty/not guilty] of resisting an executive officer, as charged in Count 1." Neither party objected to the verdict form for count 1 or stated that the verdict form should also include
In his closing argument, the prosecutor stated with respect to the "second theory" of section 69-using violence or force to resist an executive officer-"the defendant has to know that the executive officer is performing their duty." He added, "And, of course, he does because, again, at some point the notion that you didn't know that these guys were real police officers just isn't reasonable at all." Defense counsel argued that "Mr. Atkins did not believe Officer Calhoun was an officer. The car itself was a black and white car with a small star. He didn't see police on the back, because, again, Officer Calhoun was facing him. And a lot of the security details now, they do have those type of cars. And we always hear evidence or on the news of someone trying to impersonate an officer." In rebuttal, the prosecutor argued that the "first theory" of section 69 did not require proof that Atkins knew that Calhoun was an officer. The prosecutor stated, "You don't have to know that they're an officer to alleviate or unburden yourself of your obligation to follow directives. It's not a defense, otherwise there would be an additional element [that] the defendant knew that Officer Calhoun was a police officer. It's not there."
During deliberations, the jury submitted a written question relating to (in the words of the jury) "Theory One" of section 69. The note stated, "Does intent require that the defendant believed Calhoun was an executive police officer?" The trial court read the question to counsel and stated, "And I'm going to answer that, no, there's
The jury found Atkins guilty of sections 69 and 148(a), as charged in counts 1 and 3, but not guilty of section 626.10(b), as charged in count 2. At sentencing, the trial court suspended imposition of sentence, placed Atkins on formal probation for a period of eighteen months, and ordered him to serve 60 days in the county jail and to stay away from the campus of UC Santa Cruz. The trial court also imposed a number of other conditions of probation and assessed fines and fees. Atkins timely appealed.
Atkins argues that the trial court failed in its duty to correctly instruct the jury on the "first theory" of section 69-the use of a threat of violence or violence to deter an executive officer from performing his duty-when the trial court did not inform the jury that Atkins "was required to know, or reasonably should have known, that Calhoun was an executive officer." Atkins contends that the jury instruction for this theory omitted this element of the crime, and the omission was material and not harmless. Atkins similarly argues that the trial court erred when it answered the jury's question by instructing, "[t]here is no requirement that [t]he Defendant believed Calhoun was an Executive Police Officer," and the error was prejudicial. Atkins further maintains that his trial counsel was constitutionally ineffective when he failed to object to the trial court's erroneous answer to the jury's question. Atkins argues that reversal of his conviction of section 69 is required to remedy the trial court's instructional errors and his trial counsel's ineffective assistance.
The Attorney General counters that the first theory of section 69 does not require that the perpetrator of the crime know that the person they are attempting to deter is an executive officer. In the Attorney General's view, the language of the jury instruction was correct because it tracked the language of the statute, and Atkins waived any challenge to it by failing to object to the wording of the instruction. Further, even if the trial court committed instructional error in the instruction or in its answer to the jury question, that error was harmless because there was ample evidence that Atkins had violated the "second theory" of section 69 by resisting arrest by force or violence. In addition, Atkins's trial testimony was "conflicting" and implausible and "no reasonable juror would have believed [Atkins's] assertions." For the same reasons, any claim that Atkins's trial counsel was constitutionally ineffective fails because there was no legal basis to object to the instructions, and Atkins cannot demonstrate prejudice.
Resolving these competing views requires us to decide whether the first theory of section 69 requires that the perpetrator know that the person he or she is attempting to deter is an executive officer-a question of statutory interpretation that we review de novo. ( People v. Posey (2004)
A. Elements of Section 69
Section 69 provides in relevant part, "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment." ( § 69, subd. (a).) Section 69"sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty." ( People v. Smith (2013)
Atkins does not allege any error in the trial court's instructions related to the "second way"-to use the terminology used by the Supreme Court in Smith -of violating section 69.
1. Resisting an Executive Officer By Force or Violence
"The second way of violating section 69 expressly requires that the defendant resist the officer 'by the use of force or violence,' and it further requires that the officer was acting lawfully at the time of the offense." ( Smith , supra ,
The Attorney General concedes that the second way of violating section 69 requires
By contrast, Atkins's appeal focuses on the "first way" of violating section 69-attempting to deter an officer-and argues that this aspect of the crime similarly requires that the perpetrator know that the person they are trying to deter is an executive officer. On this point, the Attorney General disagrees. We turn now to this question.
2. Attempting by Threats to Deter an Executive Officer
"The first way of violating section 69 'encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future.' [Citation] The actual use of force or violence is not required. [Citation] Further, 'the statutory language [of the first clause of section 69 ] does not require that the officer be engaged in the performance of his or her duties at the time the threat is made." ( Smith , supra , 57 Cal.4th at pp. 240-241,
The statutory elements of the first way and the second way of violating 69 are different. (See Smith , supra , 57 Cal.4th at pp. 241-242,
Atkins relies heavily on Hendrix , supra ,
The absence of the word "knowingly" in the first part of violating section 69 is not itself dispositive. "[T]he requirement that, for a criminal conviction, the prosecution
Indeed, a number of courts have held that the first way of violating section 69"is a specific intent crime, requiring proof of a specific intent to interfere with the executive officer's performance of his or her duties." ( Rasmussen , supra ,
For these reasons, we conclude that the text of section 69 does not resolve whether the prosecution must prove that the person attempting to deter an executive officer knows that the individual they seek to deter is an executive officer. To answer that question, we turn to extrinsic aids in construing the purpose of the statute. ( Ruiz , supra ,
Direct legislative history provides little insight. Section 69 was enacted in 1872 as part of the first codified penal code in California. (In re M. L. B. (1980)
A number of courts have considered challenges to the first way of violating section 69 premised on the argument that the provision might violate the First Amendment "because it could be used against one who threatened lawful conduct,
The Supreme Court relied upon Anderson in its own analysis of the first way of violating section 69 in In re Manuel G. when it stated, "To avoid the
In light of the statute's "central requirement" that the relevant threat is "an attempt to deter the executive officer," ( Anderson , supra ,
We must consider one additional aspect of the knowledge requirement of the first way of violating section 69. Atkins contends that, "[t]he jury should have been told that the prosecution was required to prove that appellant actually knew, or reasonably should have known , that Calhoun was an executive officer." (Italics added.) While, for the reasons stated above, we agree that the statute requires that the perpetrator of the crime know that the person they are attempting to deter is an
Hendrix , the principal case relied upon by Atkins, states that " Penal Code section 69 requires actual knowledge on the part of the defendant that the person being resisted is an executive officer and that the officer is engaged in
It is true that caselaw has established that, in the context of the related crime of resisting arrest under section 148(a)
Despite the thematic similarity between section 148(a) and section 69, we do not believe that the knowledge requirement of the first way of violating section 69 should be read-absent any textual support or other evidence of legislative intent-to include the "reasonably should have known" language from section 148(a). As far as we are aware, no court has held that such language applies to the knowledge requirement for the second way of violating section 69, and the pattern jury instruction does not include it.
In sum, we hold that, to convict an individual of the crime of trying to deter or prevent an executive officer from performing his or her duty-the first way of violating section 69-the prosecution must prove that the defendant willfully and unlawfully used violence or the threat of violence to try to prevent or deter an executive officer from performing the officer's lawful duty; when the defendant acted he or she intended to prevent or deter the executive officer from performing the officer's lawful duty; and when the defendant acted, he or she knew that the person was an executive officer.
We next turn to whether, in light of our conclusion, the trial court committed error when it instructed Atkins's jury.
B. Instructional Error
1. The Jury Instructions
Atkins argues that the jury instructions given by the trial court for the first way of committing section 69 omitted the knowledge element that we have concluded the statute requires. "It is well settled that no objection is required to preserve a claim for appellate review that the jury instructions omitted an essential element of the charge." ( People v. Mil (2012)
2. The Trial Court's Answer to the Jury Question
However, we reach a different conclusion when considering the trial court's answer to the jury's question. During deliberations, the jury sent a note to the trial court asking with respect to the word "intent" in the jury instruction for the first
"We review de novo the legal accuracy of any supplemental instructions provided." ( People v. Franklin (2018)
C. Prejudice
As a general matter, "nothing results in more cases of reversible error than mistakes in jury instructions. And if jury instructions are important in general, there is no category of instructional error more prejudicial than when the trial judge makes a mistake in responding to a jury's inquiry during deliberations." ( People v. Thompkins (1987)
The California Supreme Court has stated, " Neder instructs us to 'conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error-for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding-it should not find the error harmless.' " ( Mil , supra , 53 Cal.4th. at p. 417,
After a thorough examination of the record of Atkins's trial, we "cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error." ( Neder , supra ,
The Attorney General maintains that, if the trial court committed instructional error, that error was harmless beyond a reasonable doubt because Atkins's testimony was "not credible." On appeal, however, we are unable to make that determination, for "it is the exclusive province of the trial judge or jury to determine the credibility of a witness." (
The Attorney General urges us to find no prejudice because of the significant evidence elicited in Atkins's trial that he had violated section 69 by actively resisting the officers-the second way of violating the statute. However, "[w]hen a trial court instructs a jury on two theories of guilt, one of which was legally correct and one legally incorrect, reversal is required unless there is a basis in the record to find that the verdict was based on a valid ground." ( People v. Chiu (2014)
The prosecutor argued that Atkins violated section 69 both by attempting to deter Officer Calhoun and by actually resisting him. The prosecutor stated in closing argument, "the uncontested evidence is that the defendant made this threat and also offered the physical resistance in the form of violence and
For these reasons, the Attorney General has not persuaded us beyond a reasonable doubt that the instructional error did not contribute to Atkins's verdict. We therefore reverse Atkins's conviction on count 1.
III. DISPOSITION
The conviction for section 69 is reversed. Atkins's sentence is vacated in its entirety, and the matter is remanded to the trial court for a possible retrial on count 1. If the prosecutor elects not to retry Atkins, or at the conclusion of any retrial, the trial court is to resentence Atkins.
WE CONCUR:
GREENWOOD, P.J.
GROVER, J.
Notes
All further statutory references are to the Penal Code.
Calhoun testified that his first name is Nathaniel, but he "goes by his middle name." The information referred to him as "Jack Calhoun."
There is no indication either in the clerk's transcript or in the reporter's transcript that the trial court provided the jury with two verdict forms for count 1. We therefore assume that the verdict form that appears in the record on appeal is the only verdict form given to the jury for this count.
Some courts refer to the two aspects of section 69 as "attempting to deter" and "actually resisting" an officer. (See, e.g., People v. Lopez (2005)
Section 69, in turn, was based on sections 100 and 101 of the New York 1848-1849 draft "Field Codes" of Civil Procedure and Criminal Procedure. (Commissioners of the Code, The Civil Code of the State of New York (1865) (the Field Code); see People v. Evans (2008)
Section 422 states, "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison." (§ 422, subd. (a).)
That statute provides in relevant part, "Every person who willfully resists, delays, or obstructs any public officer, [or] peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." (§ 148, subd. (a)(1).)
Although the Supreme Court concluded in Smith that section 148(a) is "necessarily included within [the] second way of violating section 69," Smith , supra ,
In light of our conclusion, the Advisory Committee on Criminal Jury Instructions may wish to consider revisions to CALCRIM No. 2651. The Advisory Committee may also wish to examine whether CALCRIM No. 2652 could more clearly articulate the knowledge element of the second way of violating section 69. (See Hendrix , supra ,
The jury's conviction of Atkins under section 148(a) for count 3 does not resolve whether it would have convicted him for section 69 if properly instructed. The jury instruction for section 148(a) instructed the jury that the prosecution must prove that "[w]hen the defendant acted, he knew, or reasonably should have known, that Officer Jack Calhoun and/or Sgt. Greg Flippo was a peace officer performing or attempting to perform his duties." Therefore, the jury could have convicted Atkins for count 3 based either on Atkins's conduct toward Flippo, who was not the subject of the section 69 charge, or because they believed Atkins "reasonably should have known" that Calhoun was a peace officer-a legal standard that we have held is inapplicable to the first way of violating section 69.
We recognize that the California Supreme Court is currently considering in People v. Aledamat (2018)
Because the prosecutor's argument and the jury instructions referred to both ways of violating section 69, we do not find dispositive the limitation in the verdict form to the second theory of section 69. (See Jackson , supra , 26 Cal.App.5th at pp. 379-380,
In light of this conclusion, we do not reach Atkins's argument that his trial counsel was constitutionally ineffective for failing to object to the trial court's answer to the jury question about section 69.