THE PEOPLE, Plaintiff and Respondent, v. HENRY MORGAN,
A166435
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE
Filed 7/8/24
CERTIFIED FOR PUBLICATION; (Sonoma County Super. Ct. No. SCR7469261)
Having ignored officers’ orders to get down on the ground, defendant reached into his car, pulled a gun from the front seat, took a
Defendant maintains the resisting charges never should have been submitted to the jury because precedent holds assault cannot be committed with an unloaded firearm and assault is a necessarily included lesser offense of resisting an officer under
The Attorney General does not take issue with the venerable case law holding assault cannot be committed with an unloaded firearm. He does not agree, however, that it was beyond the province of the jury to find that defendant engaged in violent conduct while resisting the officers’ efforts to subdue and arrest him.
We have no doubt that in most cases a defendant who, by use of force or violence, resists an officer in the performance of his or her duties will also commit assault. However, the circumstances in this case are unlike those in any other
BACKGROUND
The Encounter Between Defendant and Officers
California Highway Patrol Officer Matthew Goulding was driving eastbound in Sonoma County when he spotted “two men in [a] dirt field” that
Goulding pulled to a stop in the middle of the eastbound lane, at a diagonal, to “get traffic to stop coming towards [him] because [he] didn‘t want anybody else near [him] when this dangerous encounter was going on.” Goulding had on his “[f]ull tan uniform with [his] CHP badge and [his] name tag and gun belt and all [his] tools,” and his patrol car was a “fully marked black and white CHP patrol vehicle.”
Goulding could see that defendant was holding the knife “with a closed fist . . . with the blade pointed upward.” He was in “an athletic combative stance . . . [c]learly an aggressive stance engaging with . . . the other individual.” Goulding, who was approximately eight to 10 feet away from the men, got out of his vehicle, drew his side arm, and raised it “in an attempt to de-escalate both of their actions” and “de-escalate the whole situation.”
Neither man realized Goulding was there until he “started shouting commands.” Goulding told them to “drop their respective weapons and to get down on the ground.” The man holding the rock immediately complied. Defendant was “slow to react,” but did “eventually lay down,” although he continued to hold the knife. Goulding ordered defendant to “throw the knife away” from himself and “he did so.”
Goulding thereupon holstered his weapon and called for his “beat partner,” who was working the same area, so Goulding could “secure the scene,” detain both men, and investigate what had happened.
Defendant, who was still on the ground, “started screaming,” ” ‘I just want to leave, I just want to leave, I just want to leave.’ ” He then suddenly “stood up, raised his hands above his head and started walking towards” Goulding. Fearing defendant might attack him, Goulding drew his taser.
Undeterred, defendant kept advancing toward Goulding, repeating that “he wanted to leave.” At that point, Goulding decided not to “taze” defendant because he “believed . . . all [defendant] wanted to do was to leave.” Goulding repeatedly told defendant “to get down on the ground.” Defendant continued to ignore the officer and continued walking, and Goulding eventually realized he was walking toward a red Subaru parked on the shoulder of the road. Goulding noted the Subaru‘s license plate as defendant got into the car and drove off, heading eastbound. Goulding asked dispatch to run the plate number and requested responding units to try to locate and stop the car.
Shortly after defendant drove away, Goulding saw him return to the scene. Fearing for his safety, Goulding moved toward his patrol vehicle and opened the driver‘s side door as a shield. He drew his “side arm and prepare[d] to engage in possibly a gun battle with [defendant] based off everything [he was] seeing at [that] point.”
Defendant appeared to be “[h]ysterical” and was yelling, but Goulding could not make out what he was saying. As defendant stood “in the V of [the Subaru‘s] door” (the “area when you open your driver door and you step out“), he “leaned over inside the vehicle and started rummaging around like he was looking for something.” When he reemerged, defendant was holding a “black pistol in his right hand.”
Around this time, Sonoma County Deputy Sheriff Micah Hope arrived and saw Goulding in a “high-risk stop with his gun pointed” at defendant. Goulding warned Hope that defendant had a gun.
As defendant moved toward the rear of the Subaru, both Goulding and Hope began “screaming ‘drop the gun, drop the gun.’ ” Instead of doing so, defendant “raise[d] the gun and point[ed] it” at Goulding. Defendant was in a “shooting stance” and had the gun aimed squarely at Goulding‘s head. Goulding was looking “down the barrel of [defendant‘s] gun” and was “most definitely in fear for [his] life.” Although Goulding could not tell whether defendant was trying to pull the trigger, Hope heard a “click” which he believed emanated from defendant‘s pulling the trigger. Goulding continued to “yell at [defendant] ‘drop the gun, drop the gun.’ ” Defendant continued to ignore him and began making “erratic movements like he was distraught” and “just extremely upset.”
Both Goulding and Hope saw defendant “rack” the gun. It appeared to Goulding that defendant was trying to “load[] a bullet into the chamber.” According to Hope, “you would do that . . . if the gun was jammed and not functioning correctly[,] you would rack the slide to get it back to working order.” After defendant racked “the slide probably three times,” Hope “saw him pull the trigger of the firearm while it was pointed at the ground. Since nothing happened and [Hope] could kind of hear a metallic click [i]t indicated to [him] that the gun was either out [of ammunition] or it was perhaps a very realistic fake, like an airsoft gun.”
Similarly, from the “moment [defendant] drew his weapon and pointed it directly at” him, Goulding “believed that all [defendant] had to do was pull a trigger and it would be operable.” But as minutes passed and defendant “continued to try and manipulate the weapon, racking the slide, trying to load a round from the magazine into the chamber,” Goulding began to “question[] the gun‘s operability.” Regardless, Goulding “knew it wasn‘t safe” and “perceived [defendant] was a threat the entire time.” He thought defendant “was trying to get the gun to function properly, that he was trying to fire on us.”
Defendant continued to move, this time toward the back of Peake‘s pickup truck. He was “walking quickly still with the gun, still kind of waving it around, cursing, clearly very angry.” Both Goulding and Hope continued to order him to “drop the gun.”
Peake, who had taken cover behind the engine compartment of his truck, had watched events unfold and saw Goulding draw his weapon and order defendant to drop his. Defendant ignored the commands. Peake stayed down “expecting gunshots,” and then heard footsteps behind him. As he turned, still crouched behind his truck, Peake saw defendant round the truck with his gun in hand. Peake ran, and as he did so, “heard a click, which [he] interpreted to be a trigger pull.” Peake “thought [he] was dead or that [he] was going to die” and was “hoping maybe [his] vest would take the bullet.” He stayed crouched as he ran, keeping his head low, toward Goulding and took cover behind Goulding‘s vehicle.
As defendant started to move toward a bus stop, another deputy arrived. With three officers ordering him to drop his gun, defendant moved back toward the Subaru, still holding the gun. Defendant got in his car, drove around Goulding‘s patrol car, and headed westbound. Within moments, defendant stopped and got out “with the pistol in his hand kind of waving it down next to the ground or next to his waist,” “screaming and yelling.” Defendant then got back into his car and continued driving westbound.
Several officers, including Goulding and Hope, gave chase. Goulding activated the lights and sirens of his patrol car.
Defendant soon turned into a dead-end street, parked at the end, got out, and ran in a northerly direction. The officers pulled in behind his car and
Deputy Sheriff Aaron Hunt reported to the scene of the arrest and asked defendant where the gun was. Defendant told him it was in his car. He also asked Hunt “several times why didn‘t they shoot [him].” Deputy Sheriff David Higgenbottom then searched the Subaru and found a “gray and black handgun sitting on top of some clothes covered by other clothes” on the front passenger seat of the car. He did not test the usability or functionality of the gun.
According to defendant, on the day of the incident he “was just, like, smoked out of [his] mind.” He said, “[I] was just really mad. I really thought that people were chasing me, following me, and I believed that, like, I was talking to people through telepathy, even though I wasn‘t, you know? But I believed that people were talking to me in my head and I was talking to people in their head.” He admitted he had earlier driven to a compost company where he had worked, driven in circles around the parking lot, and gotten out of his car and stabbed, and ruined, the tires of one of the company tractors. He then drove to the park, where he parked near a recreational vehicle and began throwing pennies at the vehicle. The individual inside got out, ran over to where defendant was sitting in his car, and sprayed him with pepper spray. Defendant, armed with a knife, got out of his car to confront him. At this point, Officer Goulding happened upon them.
Goulding told the two to “get down on the ground.” Defendant did so, but then got up to go to his car to “avoid” any “type of cop interaction” since officers “always seem to just harass [him], search [him].” Defendant retrieved his gun because he “got tired of being chased, harassed, bothered,” and so he “could get suicide by cop.” When he returned to the scene, he “was really scared, but [he] just knew that [he] had to hurry up and point the gun at them so [he] could just get killed really fast, you know, with as little as—pain as possible.” So he grabbed the gun out of his car, pointed it at them in a way he “knew that [he] could get assassinated,” “cocked it back,” and pulled the trigger so that Officer Goulding would shoot him. He “only remember[s] pointing it at Goulding.” He admittedly “cocked [the gun] back twice” and pulled the trigger an equal amount of times.
When it appeared the officers were not going to kill him, he “put the gun inside [his] vehicle.” At that point, he “believed that they were civilians
Defendant was never asked by the prosecution or the defense, nor did he ever voluntarily testify, whether his gun was loaded or unloaded or whether he thought it was loaded or unloaded.
The Charges and Convictions
The operative third amended information charged defendant with three counts of felony resisting an officer (
The jury found defendant guilty of count 1 (resisting by force or violence Officer Goulding—
The jury deadlocked on counts 3 and 4 (resisting by use of force or violence Officers Andrews and Hope—
Defendant additionally admitted to a 2012 conviction “of battery on a peace officer who was engaged in the performance of their duties,” a 2013 conviction for petty theft, two 2015 convictions for felony domestic violence, and a 2020 conviction for misdemeanor resisting arrest. He also admitted a pending battery charge.
The trial court sentenced defendant to seven years and four months.
DISCUSSION
Motion for Acquittal of Section 69 Counts4
As the italicized wording indicates, “[t]he statute 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
Attempting to deter an officer can be established by ” ’ “[a] threat, unaccompanied by any physical force” ’ and may involve either an officer‘s immediate or future performance of his [or her] duty.” (Carrasco, supra, 163 Cal.App.4th at p. 985, quoting People v. Lacefield (2007) 157 Cal.App.4th 249, 255, disapproved on another ground as stated in Smith, supra, 57 Cal.4th at p. 242.) “The actual use of force or violence is not required. (See [Manuel G., supra, 16 Cal.4th]. at p. 814 [“A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under
Actually resisting requires that the defendant “resist” the officer “by the use of force or violence” and further requires that the officer be acting lawfully at the time the defendant uses force or violence. (Smith, supra, 57 Cal.4th at p. 241.)
Defendant was charged with, and tried on, the second theory—that he actually resisted the officers by use of force or violence. There is no dispute that, at the time, the officers were engaged in performing their lawful duties.
The Trial Court Arguments
After the prosecution rested, defendant moved for acquittal on the three
Defense counsel disagreed, arguing resisting an officer, rather than threatening to interfere with an officer, “requires force and violence, and there [was] no application of force, which is synonymous with violence. They‘re the same things. And there‘s case law which supports that as well.”
The court saw it differently—that “force and violence” are not the same thing. “They are different, by definition, under law. [¶] I think, in the totality of the circumstances, there were violent acts that have been testified to in the context of what was happening, with the appearance of force, which I don‘t think is determinative. [¶] . . . I disagree that in all circumstances an assault is required for the second type of resisting an executive officer. I don‘t agree with that theory.” The trial court then indicated it would deny the motion.
Defense counsel persisted, asserting “[t]here would be no reason to have two separate ways of violating
The trial court remained of the view that an assault was not required to find force or violence, and “[i]t can happen without an assault.”
Analysis
Defendant renews his tri-partite argument on appeal—that assault is a necessarily included lesser offense of resisting an officer under
The Attorney General concedes “for [the] purposes of this case that the weight of precedent rules that an assault may not be committed with an
We first consider Brown. In that case, the prosecution and defense presented “two starkly different” scenarios as to what happened at the scene of the alleged offense. The officers testified they observed 67-year-old Brown riding his bicycle on the sidewalk, while wearing headphones and without a light, violations of the municipal code and Vehicle Code. Despite orders to do so, Brown refused to stop or get off of his bicycle, and two officers, who were “decades younger than Brown . . . and in excellent physical condition,” eventually cornered Brown and arrested him after a brief altercation in which Brown suffered a fractured rib and knots on his head and one officer suffered “a ‘boxer‘s fracture’ to the knuckle of his right hand.” (Brown, supra, 245 Cal.App.4th at p. 145.) The officers admitted they struck the defendant, but only after he swung his fists at them. (Id. at pp. 146-147.) Brown, in contrast, testified he fell off his bicycle and while facedown and not resisting, one of the officers pinned him to the ground and struck him in the head without provocation. (Id. at p. 147.)
Consistent with our Supreme Court‘s holding in Smith, supra, 57 Cal.4th at pages 242 to 243—that simple resisting an officer under
On appeal, Brown asserted for the first time that the jury “should have been given an additional option—convicting him of misdemeanor simple assault as [an additional] lesser included offense to a
The appellate court agreed, stating “[b]ecause the accusatory pleading used the conjunctive to charge Brown with both ways of violating
The Attorney General makes no such concession in this case and points to the paucity of Brown‘s legal analysis. He also points out the instant case involves significantly different facts Brown had no occasion to consider. We conclude the Attorney General‘s declination to concede the threshold predicate of defendant‘s argument and his view that, here, the
We begin by examining Smith, supra, 57 Cal.4th 232, which Brown cited as the sole support for its pronouncement that “it is not possible to violate the statute in the second way without committing an assault.” (Brown, supra, 245 Cal.App.4th at p. 153.) In Smith, the defendant was convicted under
The courts of appeal had reached different conclusions as to whether simple resisting under
Smith made no mention of assault, and we fail to discern how the high court‘s analysis of simple resisting under
We therefore turn to the language of
As the Attorney General points out, neither “force” nor “violence” is defined in
Our Supreme Court has concluded several times that “force,” when not circumscribed by other language, is to be understood as having “a common usage meaning, rather than a specialized legal definition.” (E.g., People v. Griffin (2004) 33 Cal.4th 1015, 1024-1026 (Griffin).) In Griffin, the court considered the term as used in the forcible rape statute (
The unqualified term “violence” likewise has no technical meaning in our criminal law. (See, e.g., People v. Collins (1992) 10 Cal.App.4th 690, 698 (Collins) [“The words, ‘force’ and ‘violence’ are words of ordinary meaning and require no further definition.“].) “Violence” also has a variety of dictionary definitions. It has been defined as the “exercise of physical force against a person, property, etc.; physically violent behavior or treatment.” (Oxford English Dict. Online (3d ed. 2015).) <http://dictionary.oed.com/cgi/entry/00277885> [as of July 8, 2024].) It has also been defined as “intense, turbulent, or furious and often destructive action or force” or “vehement feeling or expression.” (Merriam-Webster Dict. Online (2020) <https://www.merriam-webster.com/dictionary/violence> [as of July 8, 2024]; see People v. Sorden (2021) 65 Cal.App.5th 582, 600 [” ‘When attempting to ascertain the ordinary, usual meaning of a word [in a statute], courts appropriately refer to the dictionary definition of that word.’ “].)
In contrast to the absence of language in
We therefore conclude resisting an officer by “force or violence” under
We thus come to whether a person must necessarily commit assault under
It is immediately apparent that the language of
Just as the Legislature could have parroted the language of the battery statute in drafting
Indeed, the Legislature has expressly used the term “assault” in other statutes pertaining to the use of force against an officer. (E.g.,
Our Supreme Court has also focused on the absence of the unique language of
As we have recited, defense counsel took issue with the trial court‘s view that
Counsel maintained, however, that case authority holds “force” and “violence” have the “same” meaning. This authority consisted of assault and battery cases. Indeed, in that context ” ‘[i]t has long been established . . . that “the least touching” may constitute battery’ ” (People v. Rocha (1971) 3 Cal.3d 893, 899, fn. 12), and therefore ” ‘[t]he terms “violence” and “force” are synonymous when used in relation to assault [and battery], and include any application of force even though it entails no pain or bodily harm and leaves no mark.’ ” (People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 207, quoting People v. Flummerfelt (1957) 153 Cal.App.2d 104, 106.)
Furthermore, the grammatical structure of
Defendant maintains otherwise, arguing that “force” does not appear in the initial clause because that clause pertains only to an “attempt” by means of a “threat or violence” to deter an officer. (
It remains for us to consider whether “force” or “violence” applied in accordance with common usage can reasonably embrace conduct that may not constitute an assault under
The instant case is illustrative. A reasonable person—confronted by an individual with a gun, who takes a firing stance, racks and raises the gun, aims it squarely at the person‘s head (so the person is looking “down the barrel of the gun” and believes he is about to die), and pulls the trigger—could, and undoubtedly would, consider the aggressor to have engaged in violent conduct. The targeted person almost certainly will not know whether or not the gun is loaded or operable. Thus, these distinctions will also almost certainly be immaterial to the targeted person—whether the gun is loaded or unloaded, operable or non-operable, the targeted person suffers the same terror of imminent injury or death, and the gun has the same coercive effect or, as in the case of the officers here, the same disruptive and obstructive effect on their efforts to subdue and arrest defendant.8
The Attorney General posits another example—a person slashes the tires of a patrol vehicle to impede the officer‘s pursuit in order to evade arrest. Such conduct does not constitute assault of the officer under
Moreover, we see no public policy reason why resisting, delaying or obstructing an officer under
Thus, while we understand why, given the statutory language, assault cannot be committed with an unloaded or inoperable firearm (unless used as bludgeon), we see no reason why that should be the case under the entirely different language
We therefore reject the foundational premise of defendant‘s argument—that assault is a necessarily included lesser offense of a resisting charge under
Sentencing Issues
The Trial Court Proceedings
The jury found true the aggravating factor that defendant was armed with or used a weapon at the time of the commission of the crime (Cal. Rules of Court, rule 4.421(a)(2)).11 The jury found not true three other aggravating factors—that the offense involved great violence, great bodily injury, the threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness (rule 4.421(a)(2)), the offense involved “planning, sophistication, or professionalism” (rule 4.421(a)(8)), and defendant engaged in “violent conduct that indicates a serious danger to society” (rule 4.421(b)(1)).
In its sentencing report, the probation department recommended an aggregate term of eight years four months based in part on three other aggravating factors—defendant was convicted of “other crimes for which consecutive sentences could have been imposed but for which concurrent sentences are being imposed” (rule 4.421(a)(7)), “defendant‘s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of
In his sentencing brief, defendant asked the trial court to either grant probation, dismiss the firearm enhancement or strike the additional term of imprisonment pursuant to
The prosecutor urged the court to impose the aggravated term given the aggravating factor found true by the jury and three aggravating factors identified in the probation report.
At the outset of the sentencing hearing, the court stated it had reviewed counsels’ briefs and the probation report. It then heard from defendant‘s sister and defendant, and listened to the prosecutor read from a written statement by defendant‘s mother, each of whom discussed defendant‘s traumatic childhood and debilitating drug use.
The court indicated it was not going to grant probation and was, instead, considering the midterm. It then turned to “the three factors in aggravation that are typically left up to the court“—namely, that defendant had been convicted of other crimes for which consecutive sentencing could be imposed (rule 4.421(a)(7)), had suffered numerous prior convictions (rule 4.421(b)(2)), and had performed poorly on prior grants of probation (rule 4.421(b)(5)). The court determined all three factors applied.
Weighing these three aggravating factors against “what they call now the super mitigant,”13 the trial court concluded “they balance out. . . . I don‘t find
Defense counsel then inquired, “what evidence is the court relying on as to 4.421(b)(2) and 4.421(b)(5), that would be the numerous convictions and the poor past performance on probation?” The court replied, “Those partly come through referenced in the pre-sentence report, but if you . . . look at the court record in the file there are quite a few pleadings that reference the prior probation grants and those facts and circumstances. So partly by reading just the court record, plus there is another case that‘s even on calendar today that has other offenses, but also through the probation pre-sentence report and references as well to those grants of probation. There is a juvenile record. There is an adult record of convictions in Sonoma County dating back to . . . 2011, some of those are misdemeanors. So they are all pretty much listed in the pre-sentence report. I acknowledge most of them are misdemeanors but there is poor performance there. There is [sic] also some reports from the jail of rule breaking and warnings, second and third warnings and then not complying. So I‘m just not confident [defendant] can succeed and follow probation‘s plan.”
Defense counsel replied, “I understand. I just wanted to understand the court‘s basis. I do want to for the record state my objection to reliance on the probation report. I‘m not sure if that‘s proper for this purpose. Just for the record I just want that to be noted as well as the court looking at the prior pleadings within the file in this case as well.”
The trial court proceeded to sentence defendant to seven years four months (consisting of the midterm of two years for count 1, four years for the attached firearm enhancement, and eight months each for counts 6 and 8).14
Section 1170, subdivision (b)(3)
Defendant maintains he is entitled to a new sentencing hearing because the trial court was assertedly “unaware of its discretion” under
In People v. Wiley (2023) 97 Cal.App.5th 676, 686 (Wiley), review granted March 12, 2024, S283326, the court considered and rejected this same argument, observing that the appellate courts are divided on the import of amended
“Some courts have treated the prior conviction exception under
“Other courts have suggested that, under
After a thorough analysis of the Sixth Amendment and amended
We agree with Wiley and reach the same conclusion here.
Section 1170, subdivisions (b)(5) and (b)(6)
Defendant also claims the trial court violated
The trial court did not impose an upper term for any of the crimes of which defendant was convicted. Rather, it imposed the midterm. Defendant‘s argument is therefore more nuanced. He asserts the trial court violated
Where the trial court finds a “supermitigant,” as the trial court did here,
It is clear from the record that after the trial court concluded the aggravating factors set forth in rule 4.421(a)(7) (defendant was convicted of other crimes for which consecutive sentencing could be imposed), rule 4.421(b)(2) (defendant had convictions that were “numerous or of increasing seriousness“), and rule 4.421(b)(5)) (defendant performed poorly on prior grants of probation) “balance[d] out” the “supermitigant” (defendant‘s traumatic upbringing and debilitating drug use), it went on to conclude that the jury‘s aggravated factor finding under rule 4.421(a)(2) (defendant was armed with
The Attorney General makes no response to defendant‘s subdivision (b)(5) and (b)(6) argument and, thus, effectively concedes the trial court violated
It has long been the rule that courts “generally cannot use a single fact both to aggravate the base term and to impose an enhancement.” (People v. Scott (1994) 9 Cal.4th 331, 350;
Here, it is clear the trial court both sentenced defendant on the
Given this conclusion, we need not reach defendant‘s additional
DISPOSITION
The matter is remanded for a new sentencing hearing. The clerk shall prepare an amended minute order. In all other respects, the judgment is affirmed.
BANKE, J.
WE CONCUR:
HUMES, P. J.
LANGHORNE WILSON, J.
(People v. Morgan; A166435)
People v. Morgan (A166435)
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Bradford DeMeo
Attorneys:
Michael Edward Allen, under appointment by the First District Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General for Plaintiff and Respondent.