People v. MorganPeople v. Morgan
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
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
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 was part of, or on the outskirts of, a county park. The two men were “facing each other.” One (who was later identified as defendant) had a knife and the other, a rock, and they “appeared to be in a stand-off, more or less a confrontation with each other.”
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.”
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.
As Goulding turned his attention to the other individual, Sonoma County Park Ranger Stephen Peake arrived on the scene offering his assistance. Seeing Peake was unarmed, Goulding decided not to “directly involve him” but asked him to run a vehicle search on a recreational vehicle that was also parked at the scene.
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.”
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
Hope nevertheless was in “fear[] for [his] life and [he] could have absolutely articulated [sic] shooting [defendant].” He testified, “[I]t is certainly the closest I‘ve ever come in my 14-year career to shooting somebody.” But he had “just a little sliver of doubt” that defendant was going to fire a fatal shot given “the lack of [defendant‘s] gun directly pointing at [him] or another officer.”
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]
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 chased him across a field to a house, which defendant ran behind. Unsure if defendant still had his gun, the officers split into two groups in hopes of coming at defendant from two directions. With weapons drawn, the officers found defendant “kind of hiding” and ordered him to get down on the ground. Goulding did not see a gun on defendant‘s person, and after defendant briefly “physically resist[ed],” Goulding was able to gain control and place him under arrest.
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
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]
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 impersonating officers.” He heard people yelling but did not understand what they were saying, nor did he recognize them as police officers. After looking for his keys, he “proceeded to get inside [his] vehicle again, and [he] just—[he] thought [he] was scot-free.” When he got to the dead-end street—where officers surrounded him—he “was having second thoughts. [He] was thinking that perhaps [he] did really just mess up and [he] just did something that‘s going to probably bring repercussions,” so he “just took off.” When officers eventually handcuffed him, he asked, “why didn‘t they shoot me. You know, because I feel, like any other cop, they would have shot and killed me. One hundred percent sure. And I felt the lack of them not doing that gave me the impression that they weren‘t cops to begin with.”
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
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 performance of his or her duty.” (In re Manuel G. (1997) 16 Cal.4th 805, 814
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.
After the prosecution rested, defendant moved for acquittal on the three
The trial court observed, “Force and violence have, under California law, been stretched to a lot of different acts. Here, a gun was pointed. Even—not addressing assault but addressing [section] 69(a). I don‘t think you have to have an assault to have a [section] 69(a), even in the second way, the second type. [¶] I think force can be applied without an assault. There are instances of violence that are not an assault.”
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. I5
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 unloaded weapon.” He disagrees, however, that assault is a necessarily included lesser offense of resisting an officer under
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
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
This single sentence, supported by the “see” citation to Smith, is the entirety of the court‘s analysis. (Brown, supra, 245 Cal.App.4th at p. 153.) We also note that in Brown the Attorney General conceded
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
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).)
In contrast to the absence of language in
The Legislature could have included such language in
We therefore conclude resisting an officer by “force or violence” under
An assault is “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (
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
But as we have discussed, although the Legislature enacted the assault, battery, and aggravated resisting statutes at the same time, it employed different terminology in each, and the language of
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. (
We therefore conclude that, as used in
It remains for us to consider whether “force” or “violence” applied in accordance with common usage can reasonably embrace conduct that may not
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
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
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,
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” (
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
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 one group of aggravating factors more persuasive than the super mitigant or the super mitigant [of] more weight than the aggravating factors under (a)(7) [conviction of other crimes for which consecutive sentences could have been imposed], (b)(2) [convictions that “are numerous or of increasing seriousness“], and (b)(5) [unsatisfactory performance on probation]. To put it simply in my mind they kind of cancel each other out. [¶] And I look at the offense, the circumstances, what happened, which was very, very, very dangerous and serious, and I do believe that the midterm on count 1 should be imposed.”
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
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
It is clear from the record that after the trial court concluded the aggravating factors set forth in
The Attorney General makes no response to defendant‘s
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.
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.
Notes
We also need not, and do not, address the Attorney General‘s alternative argument that defendant‘s “racking of the pistol, pointing and pulling the trigger formed substantial evidence that [the gun] was loaded,” citing People v. Rodriguez (1999) 20 Cal.4th 1. In Rodriguez, our Supreme Court reversed the Court of Appeal‘s determination that there was insufficient evidence defendant‘s gun was loaded to support his conviction of assault with a firearm. (Id. at pp. 5, 10–12.) The high court observed the defendant‘s own “statements and behavior while making an armed threat against a victim may warrant a jury‘s finding the weapon is loaded.” (Id. at p. 12.) We note, however, that in the instant case, the prosecutor never argued the gun was loaded but argued, “It is a use of force to take a gun, a gun that you don‘t know if it is loaded, don‘t know if it [is] unloaded and point it so that you are looking down the barrel, so you are seeing that this might be your last moments on this earth, that is use of force. That is a use of violence.” Nor did the prosecutor object to defendant‘s assertion during closing argument that there was no evidence the gun was loaded. The prosecutor also never argued during the hearing on defendant‘s motion for acquittal that there was substantial evidence the gun was loaded