Lead Opinion
Opinion
Defendant Dewone T. Smith was charged with resisting an executive officer in the performance of his duties under Penal Code section 69 (hereafter section 69) and convicted by a jury. During the trial, the superior court denied defendant’s request to instruct the jury that it could instead convict him of the lesser offense of resisting a public officer under Penal Code section 148, subdivision (a)(1) (hereafter section 148(a)(1)), a crime that defendant contends is necessarily included within section 69. We hold that section 148(a)(1) was á necessarily included lesser offense of section 69 as alleged in the amended information. But because the record does not reveal substantial evidence that defendant violated sеction 148(a)(1) without also violating section 69, the trial court was not required to instruct on section 148(a)(1). Accordingly, we affirm defendant’s conviction.
I.
On the morning of April 21, 2008, Los Angeles Deputy Sheriff Deloy Baker was working as a prowl deputy in Module 1700 of the Men’s Central Jail. Deputy Baker explained: “A prowl deputy just walks the tiers, ensures everyone’s safety, that everyone is alive, and also provide[s] security when need be.” Defendant was one of several inmates being moved from their cells in Module 1700 to another location. The inmates had gathered their belongings in large plastic trash bags, placed the bags in the center of the corridor, and lined up outside of their cells facing the wall. A deputy then bеgan searching the inmates’ belongings. Defendant turned away from the wall and told the deputy not to lose any of his “paperwork,” which he described as “important legal materials.” Deputy Baker instructed defendant not to talk and to face the wall. A few seconds later, defendant again turned away from the wall and told the deputy conducting the search not to lose his papers.
Defendant turned away from the wall a third time and said: “Don’t lose any of my fucking paperwork.” Deputy Baker testified that he “stepped up towards him . . . grabbed his left wrist with my left hand, put my right hand on the center of his back and assisted him to face the wall.” Deputy Baker continued: “As I was holding him, I felt his body become tense, he was breathing a lot heavier, his hands were clinching up, that’s when I gave him an order to put his—both of his hands behind his back so that way I could
On September 11, 2008, defendant was incarcerated in the Twin Towers Correctional Facility in Los Angeles County. About 7:00 a.m., Los Angeles County Deputy Sheriff Mark Tadrous arrived in Module 141 as part of an emergency response team (ERT). The ERT had been summoned because defendant refused to return to his cell.
Defendant was standing in the dayroom, yelling. Sergeant Chafen asked defendant to return to his cell and explained that defendant would be forced to do so if he refused. A deputy sheriff videotaped the incident, and the recording was played for the jury. An eight-page transcript of the audio portion of the recording was introduced into evidence. According to the transcript, Sergeant Chafen addressed defendant and said, “Now, the issue is—you don’t want to go back to your cell and you don’t want to go to court?” Defendant responded, “You’re right, I don’t,” adding: “Because the simple fact is, your officers playin’ with me. . . . They’re playin’ games, they’re playing with my food. I’m not keeping—I’m not going to play with nobody.” The sergeant asked, “Is there anything we can do today to work this out?” Defendant responded, “Look man, all I just ask, I don’t fuck with nobody—.” Sergeant Chafen then said, “I’m going to ask you to go back to your cell, lock it down, otherwise you leave me no choice.” Defendant responded, “Well, I mean, I’m going to . . . I’m going to have to ... I already let ACLU know.” The sergeant asked, “What is it you want to do?” Defendant said, “You gonna have to kill me man, because that’s going to get me up оut of here, because I’m tired of . . . .” Sergeant Chafen replied, “Well, we’re not going to kill you.” The following colloquy then took place:
“Sgt: OK—do you realize what my option is?
“Smith: Well I understand, whoa whoa, what is your option? What is your option? Please please, let me know.
“Sgt.: I have to physically come in here and handcuff you and take you down to the hole. [][]... [f]
“Smith: But one thing you have to know—I’m going to be physical. I’m not going to—Somebody’s going to get hurt. I’m not playin’.”
Based on the April 21, 2008 and September 11, 2008 incidents as well as two others not relevant here, an amended information charged defendant with, among other things, two counts of deterring or resisting an executive officer in violation of section 69. The trial court instructed the jury that a deputy sheriff is an executive officer and that defendant could be convicted of either count of deterring or resisting an executive officer in violation of section 69 if the prosecution proved that “One, the defendant used force or violence to resist an executive officer, [j]] Two, when the defendant acted, the officer was performing his lawful duty. [j[] And three, when the defendant acted, he knew the executive officer was performing his duty.” The trial court further instructed the jury that defendant could be convicted of the second count of resisting an executive officer on September 11, 2008, if the prosecution proved either that he forcibly resisted an executive officer or, in the alternative, that defendant “willfully and unlawfully attempted to deter or prevent an executive officer from the performance of any duty imposed upon that officer by law, and the attempt was accomplished by means of a threat of violence.”
The trial judge earlier had indicated to counsel that he was considering instructing the jury that it could convict defendant of resisting a public оfficer in violation of section 148(a)(1) as a lesser included offense of section 69. The prosecution argued “that a PC § 148 charge is, at best, a lesser related, rather than a lesser included offense” and “specifically objected] to giving the instruction.” The trial court ultimately declined to instruct the jury on section 148(a)(1) over defendant’s objection.
The jury found defendant guilty of both counts of deterring or resisting an executive officer. The jury returned a special verdict on the second count, checking the box on the verdict form that said “Guilty because the defendant, violently or forcefully resisted deputies from the Los Angeles Sheriff’s Department.” The jury did not check the box on the verdict form thаt read “Guilty because the defendant willfully and unlawfully attempted to deter an executive officer from performance of a future duty by means of a threat of force or violence.”
The jury also found defendant guilty of the other charges he faced. Defendant admitted that he had suffered four prior convictions but moved the trial court to dismiss them in the interest of justice. (See People v. Superior
The Court of Appeal affirmed the conviction but vacated the sentence and remanded the case with directions to the trial court to reconsider defendant’s motion to dismiss his prior convictions and to exercise its sentencing discretion. The Court of Appeal concluded that section 148(a)(1) is not a necessarily included offense of section 69 and that even if it were, the trial court was not required to so instruct the jury because there was no substantial evidence that defendant committed the lesser offense without committing the greater offense. We granted defendant’s petition for review to decide whether section 148(a)(1) is a lesser included offense of section 69, a question that has divided the Courts of Appeal.
II.
“It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidenсe. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case. [Citations.]” (People v. St. Martin (1970)
In this case, neither the defense’s request for an instruction on a lesser included offense nor the prosecution’s objection to the request has any bеaring on the issue before us. That is because “California law has long provided that even absent a request, and over any party’s objection, a trial court must instruct a criminal jury on any lesser offense ‘necessarily included’ in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence.” (People v. Birks (1998)
A.
For purposes of determining a trial court’s instructional duties, we have said that “a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, оr the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (Birks, supra, 19 Cal.4th at pp. 117-118, fn. omitted; cf. People v. Reed (2006)
Section 148(a)(1) is not a lesser included offense of section 69 based on the statutory elements of each crime. Section 69 states: “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment [in the state prison], or in a county jail not exceeding one year, or by both such fine and imprisonment.” We have explained that 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.” (In re Manuel G. (1997)
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.” (In re Manuel G., supra,
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. (See In re Manuel G., supra,
Section 148(a)(1) is similar to the second way of violating section 69 but is clearly different from the first way of violating section 69. Section 148(a)(1) says: “Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment, whеn 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.”
A person who violates section 69 in the second way—by “knowingly resisting], by the use of force or violence, such officer, in the performance of his duty”—also necessarily violates section 148(a)(1) by “willfully resisting] . . . any public officer ... in the discharge or attempt to discharge any duty of his or her office or employment.” (People v. Lacefield (2007)
But in determining whether a trial court has a duty to instruct the jury on lesser offenses, we also consider the language of the accusatory pleading. (Birks, supra,
We addressed a similar situation in People v. Barrick (1982)
Like the charged crime in the present case, there are two ways of violating section 10851: the defendant can either “drive” or “take” the vehicle. Barrick recognized that “joyriding is not intrinsically a necessarily included offense within Vehicle Code section 10851” (Barrick, supra,
But the situation changes if the accusatory pleading charges the defendant with driving the vehicle. Although section 10851 states in the disjunctive that the statute applies if the defendant either “drives or takes a vehicle,” the Attorney General notes in her briefing here,that “[w]hen a crime can be committed in more than one way, it is standard practice to allege in the conjunctive that it was committed every way.” Barrick reasoned that the accusatory pleading, “by accusing defendant of driving and taking a vehicle without the owner’s permission, necessarily charged both a violation of Vehicle Code section 10851 and of Penal Code [former] section 499b” because “one cannot drive a vehicle without the purpose of using or operating it . . . .” (Barrick, supra, 33 Cal.3d at pp. 133, 135.) “Thus, a complaint which charges a defendant with ‘driving and taking’ an automobile necessarily charges that he took the automobile ‘for the purpose of temporarily using or operating the same’ and thus violated section 499b.” (Id. at p. 135, fn. omitted.) Accordingly, Barrick held that the “charging allegation . . . rendered] joyriding a necessarily included lesser offense within the charged violation of Vehicle Code section 10851.” (Barrick, at p. 133; see People v. Moon (2005)
Similarly here, section 148(a)(1) is not intrinsically a necessarily lesser included offense of section 69 because a defendant can violate section 69 in the first way, by attempting to deter an executive officer from performing a duty, without violating section 148(a)(1). But the amended information in the present case alleged in both counts that defendant violated section 69 not only in the first way but also in the second way by forcibly resisting an officer. As explained above, it is not possible to violate section 69 in this second way without also violating section 148(a)(1). Therefore, section 148(a)(1) was a necessarily included lesser offense of section 69 as alleged in the amended information.
This result comports with the purpose for requiring jury instructions on necessarily included lesser offenses. We have recognized that “ ‘the People have no legitimate interest in obtaining a conviction of a greater offense than that established by the evidence, [and] a defendant has no right to an acquittal when that evidence is sufficient to establish a lesser included offense. [Citation.]’ [Citations.]” (Breverman, supra,
The rale we affirm today—requiring sua sponte instruction оn a lesser offense that is necessarily included in one way of violating a charged statute when the prosecution elects to charge th¿ defendant with multiple ways of violating the statute—does not require or depend on an examination of the evidence adduced at trial. The trial court need only examine the accusatory pleading. When the prosecution chooses to allege multiple ways of committing a greater offense in the accusatory pleading, the defendant may be convicted of the greater offense on any theory alleged (see People v. McClennegen (1925)
Applying the rule to the statutory offenses at issue here, we summarize the trial court’s instructional duty as follows: Where an accusatory pleading alleges both ways of violating section 69, the trial court should
B.
As noted, our conclusion that section 148(a)(1) was a necessarily included lesser offense of section 69 as alleged in the amended information does not end the analysis because a trial court is not required to instruct the jury on a necessarily included lesser offense “ ‘when there is no evidence that the offense was less than that charged.’ ” (Breverman, supra,
In the April 21, 2008 incident, defendant physically resisted and punched the guard at the Men’s Central Jail. In the September 11, 2008 incident, defendant again physically resisted the guards and was subdued only after the deputies used Tasers and foam аnd rubber projectiles. Defendant was either guilty or not guilty of resisting the executive officers by the use of force or violence in violation of section 69. There was no evidence that defendant committed only the lesser offense of resisting the officers without the use of force or violence in violation of section 148(a)(1). (See People v. Carrasco (2008)
Conclusion
For the reasons above, we affirm the judgment of the Court of Appeal.
Cantil-Sakauye, C. J., Kennard, J., Baxter, J., Werdegar, J., and Chin, J., concurred.
Concurrence Opinion
I concur in the majority's conclusion that Penal Code section 148, subdivision (a)(1) (hereafter section 148(a)(1))
The question is whether a different result follows from the accusatory pleading test. Counts 2 and 5 of the amended information closely tracked the statutory language of section 69. The charging document added the dates of the offenses, the county, defendant’s name, and the names of the viсtims. It also charged the alternative ways of violating section 69 in the conjunctive “and” rather than the disjunctive “or.”
For the answer, the majority looks to Barrick. There we considered the defendant’s allegation that the court erred by refusing to give an instruction that joyriding (§ 499b) is a lesser included offense of unlawfully driving or taking a vehicle (Veh. Code, § 10851). (Barrick, supra, 33 Cal.3d at pp. 133-135.) Vehicle Code section 10851 can be violated by either driving or taking a vehicle. We observed that joyriding (which involves driving) is not a lesser included offense under the elements test because one can take a vehicle without driving it. (Barrick, at pp. 134-135.) However, we held that, as pled, the charging document did make section 499b a lesser included offense of Vehicle Code section 10851. We noted that the accusatory pleading had allegеd Vehicle Code section 10851 in the conjunctive (“driving and taking”). (Barrick, at p. 133.) We concluded that, “by accusing defendant of
The Barrick court’s holding unmoored the accusatory pleading test from the principles on which it was based. In my view, charging a defendant in the statutory language coupled with the use of conjunctive pleading should not yield a different result than applying the statutory elements test.
People v. Marshall (1957)
By contrast, the use of the conjunctive “and” is not a “fact” alleged in the accusatory pleading. Nor does it effectively incorporate one theory of an offense into another for the purpose of defining the elements of the charged
For this reason, the rule in Barrick is inconsistent with our rationale for requiring sua sponte instruction when a greater offense involving a single theory is charged. In Birks, supra,
Barrick represents an unreasoned departure from otherwise settled precedent governing the accusatory pleading test and the trial court’s sua sponte duty to instruct. The accusatory pleading test should not take into account the use of conjunctive pleading alleging two separate ways of violating a statute as set out in the statutory language. In effect, the accusatory pleading in this case states nothing more than the statutory elements. “When, as here, the accusatory pleading describes a crime in the statutory language, an offense is necessarily included in the greater offense when the greater offense cannot be committed without necessarily committing the lesser offense.” (People v. Marshall (1997)
Baxter, J., concurred.
Notes
Subsequent undesignated statutory references are to the Penal Code.
Count 2 alleged: “On or about April 21, 2008, in the County of Los Angeles, the crime of resisting executive officer, in violation of Penal Code section 69, a Felony, was committed by Dewone T. Smith, who did unlawfully attempt by means of threats and violence to deter and prevent Rowland, Esqueda, Lim, Baker, Moreno, Farino, 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.)
Count 5 alleged: “On or about Septеmber 11, 2008, in the County of Los Angeles, the crime of resisting executive officer, in violation of Penal Code section 69, a Felony, was committed by Dewone T. Smith, who did unlawfully attempt by means of threats and violence to deter and prevent Keith Fulkerson, Gudino, Mark Tadrous, Preston, 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.)
We have applied Barrick’s holding on this point in People v. Moon (2005)