People v. Lechuga CA4/1 ( 2023 )

Filed 1/17/23 P. v. Lechuga CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079398
Plaintiff and Respondent,
v. (Super. Ct. No. SCE395395)
RICHARD LECHUGA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Patricia K. Cookson, Judge. Affirmed in part, reversed in part, remanded
with instructions.
Kenneth J. Vandevelde, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Eric A.
Swenson and Junichi P. Semitsu, Deputy Attorneys General, for Plaintiff and
Respondent.
I
INTRODUCTION
Law enforcement officers encountered defendant Richard Lechuga
walking in and out of traffic, acting abnormally, and making suicidal
statements. They planned to detain him for a mental health assessment,
evaluation, and treatment under Welfare and Institutions Code section 5150.
Before they could do so, he reached for a nearby canister of bear spray, which
triggered a tense standoff with law enforcement. During the standoff, he
sprayed the canister of bear spray into the faces of three deputy sheriffs,
slashed a police dog with a knife, and shot a pellet gun into the ceiling of his
car. Law enforcement officers ultimately used pepper spray, a pepper ball
gun, beanbag shotguns, and a taser to subdue and arrest the defendant.
After a trial, the defendant was found guilty of one count of exhibiting a
deadly weapon to a peace officer to resist arrest (Pen. Code,1 § 417.8;
count 1); three counts of resisting an executive officer (§ 69, subd. (a);
counts 2–4); one count of animal cruelty (§ 597, subd. (a); count 5); one
misdemeanor count of brandishing an imitation firearm in a threatening
manner (§ 417.4; count 7); and one misdemeanor count of harming a police
dog (§ 600, subd. (a); count 8).2 He also pleaded guilty to one misdemeanor
count of possession of tear gas by a felon (§ 22810, subd. (a); count 9). True
findings were made on allegations he used a deadly and dangerous weapon (a
knife) in the commission of counts 1 and 5 (§ 1192.7, subd. (c)(23)); he
1 Further undesignated statutory references are to the Penal Code.
2 At the close of trial, the court dismissed an animal neglect charge and
renumbered the remaining charges for purposes of the jury’s verdict forms.
The counts referenced herein reflect the charges as alleged in the operative
charging instrument prior to the renumbering.
2
committed counts 1–5 while released from custody on bail (§ 12022.1,
subd. (b)); and he personally used a deadly and dangerous weapon (a knife) in
the commission of count 5 (§ 12022, subd. (b)(1)). The trial court sentenced
the defendant to an aggregate term of six years in state prison.
On appeal, the defendant argues: (1) there was insufficient evidence to
support his convictions for counts 2–5 and 7–8; (2) the trial court committed
instructional error; (3) the court improperly imposed multiple punishments
for a single act of slashing a police dog with a knife; and (4) the court violated
his constitutional rights and state law by imposing a $10,000 restitution fine
and a $10,000 stayed parole revocation restitution fine.
We agree with the defendant that the trial court erroneously imposed
multiple punishments for a single act. Therefore, we vacate the sentence and
remand the matter for a full resentencing proceeding. We do not address the
defendant’s arguments concerning the restitution fines, which may be
presented to the trial court during resentencing. We reject the defendant’s
remaining arguments and affirm the judgment in all other respects.
II
BACKGROUND
“In light of the sufficiency of the evidence contentions that follow, we
set forth the facts here in the light most favorable to the judgment.” (People
v. Lee (2011) 51 Cal.4th 620, 625, fn. 5.)
One morning, U.S. Border Patrol agent Charles Oakey was parked in
his marked patrol vehicle on a street in a rural area of Jamul. A passing
motorist notified him a man up the road was running in and out of traffic and
saying strange things like he wanted to die.
Agent Oakey drove up the road and saw the defendant walking along
the shoulder. The defendant was not wearing a shirt and he looked sweaty
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and agitated. Agent Oakey pulled up next to the defendant and asked how it
was going, and the defendant replied, “man, I’m having a really shitty day.”
Agent Oakey offered to help and asked the defendant to meet him at a nearby
street pullout where the defendant’s car was parked.
At the street pullout, the defendant told agent Oakey he was on his
way to a job interview, but his car broke down. According to agent Oakey,
the defendant also said, “something about a dead body on the side of the road
somewhere.” The defendant was “real sweaty” and certain of his statements
were nonsensical.
Agent Oakey noticed the defendant had a large canister in his
waistband. He asked about the canister and the defendant said it was
pepper spray; in fact, it was bear spray. Agent Oakey asked the defendant to
“ditch” the canister in his car and the defendant complied.
The defendant asked for water and help getting his car running. Agent
Oakey retrieved water from his patrol vehicle for the defendant. While he
was there, he radioed dispatch and asked for the county sheriff’s department
to come out and conduct a welfare check on the defendant. Agent Oakey
returned to the defendant’s car, gave the water to the defendant, and waited
for the sheriff’s deputies to arrive. As he waited, a second U.S. Border Patrol
agent parked his marked patrol vehicle and joined agent Oakey.
Soon after, deputy sheriff Bryan Paukovits arrived and took the lead
role speaking with the defendant, who at this point was in the driver’s seat of
his car with the car door open. Deputy Paukovits walked towards the car and
asked, “How’s it going, sir?” The defendant said, “bad, I just need a [car
battery] jump.” But then, as deputy Paukovits approached the car, the
defendant slammed the driver-side door shut and blasted music from his
phone speaker. Speaking through the closed car door, deputy Paukovits
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offered to jump the defendant’s car battery and reassured the defendant
several times he was not in trouble. He repeatedly asked the defendant to
speak with him and open his car door or roll down his car window, but the
defendant refused.
Unable to engage the defendant in conversation, deputy Paukovits
returned to the patrol vehicles that were parked behind the defendant’s car.
The law enforcement team ran the license plates on the defendant’s car and
learned he had prior charges for domestic violence and resisting an executive
officer. A few minutes later, a second deputy sheriff, corporal Mike
Villalobos, arrived in a marked patrol vehicle.
In the interim, the defendant remained inside his car with the doors
and windows closed, moving his head around and gesticulating his arms
erratically. About six minutes after the defendant closed the driver-side door,
he opened it back up again. Periodically, he yelled and screamed to himself,
at one point screaming, “Oh my god,” for no apparent reason.
Deputy Paukovits and corporal Villalobos walked to the defendant’s car
and deputy Paukovits engaged the defendant in conversation. Throughout
the conversation, deputy Paukovits stood with his arm draped over the open
driver-side door about two feet from the defendant, while corporal Villalobos
stood a few feet behind deputy Paukovits.
Deputy Paukovits asked the defendant if he was okay and whether he
needed help, to which the defendant replied, “I need a bullet between my
eyes.” Deputy Paukovits asked why he said that and the defendant
screamed, “Because I’ve died so many times and I can’t seem to fucking die,
and it’s a curse for everybody because I just keep on fucking coming back.
Don’t I? I’m sorry to disappoint you! I can’t fucking die that easily!” Deputy
Paukovits asked whether the defendant wanted to die and he replied, “Why
5
the fuck not? I lost everything. I don’t have shit here.” He said he had
“nothing to live for” because Satanists “stole [his] baby and probably ate
him.” He said he had no money, no gas, and a dead car battery. He also
screamed, “No girl wants me. Not a single girl in this fucking world wants
me, bro.”
Deputy Paukovits offered to get a tow for the defendant. The defendant
said he could not afford one, but deputy Paukovits could help him by opening
the hood to his car. Deputy Paukovits said he would “work on that,” but first
he wanted to make sure the defendant did not hurt himself or anybody else.
The defendant replied, “I ain’t hurting nobody, man. I’ve tried to hurt myself
the whole entire—I crashed my car at 80 miles per hour, man, one time.
Nothing fucking happened. ... I’m fed up because I’m, like, what the fuck am
I fighting for. I just want to go with the sun and the stars. ... I’m done with
this world, man.”
The defendant broke down sobbing and said his baby’s mother stole his
baby and “corrupted the whole system.” He screamed, “Nothing fucking
matters ... I’m so tired. ... What do I have to lose now?” Then, presumably
referring to his baby’s mother, he said, “I never laid a hand on that bitch,
man. I let her beat the living shit out of me because she’s in a female’s body.
Because I’m a gentleman. I could have fucked her up. I could have killed her
any second, but I didn’t. I didn’t and I regret it because she wanted me to kill
her.” At or about this time, a third sheriff’s deputy, Darryl Patmon, arrived
on the scene and approached the defendant’s car from the passenger side.
Deputy Paukovits said he could not assist the defendant with his child,
but he could help the defendant if he needed it. The defendant again stated
he could help by popping the hood of his car. Deputy Paukovits asked
whether he had done drugs that day and the defendant said he had smoked
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weed eight hours earlier. While this exchange was going on, deputy
Paukovits put on rubber gloves, anticipating he would soon detain the
defendant for a mental health evaluation, or a “5150 hold.”
Deputy Paukovits asked the defendant to speak with him outside the
car and the defendant said, “No, brother. Fuck no. Please step, step back
and help me open [the hood]—I already asked you for something.” Deputy
Paukovits said, “I’m not going to let you shut the door. Okay? Richard, come
on and step—take a step out. Okay?” The defendant asked, “What’s going on
here,” and deputy Paukovits said, “I’m going to get you help.” By this point,
deputy Paukovits had observed that the defendant had a screwdriver in his
car’s center console and a canister of bear spray wedged between the car wall
and the driver’s seat.
Events unfolded quickly from there. The defendant reached down
towards the canister of bear spray. In response, deputy Paukovits reached
into the car and tried to pin down the defendant’s arm. The defendant
screamed, “Oh my god, no. You won’t do this to me again,” and stood up. As
he stood, he sprayed the canister, which released a chemical agent into the
faces of all three deputies, burning their eyes and obscuring their vision.3
Deputy Paukovits pushed the defendant back into his car and agent
Oakey sprayed him with oleoresin capsicum (OC) spray. However, the
defendant was able to close the driver-side car door and climb into the
3 The defendant disputes the sequence of events and claims deputy
Paukovits advanced upon him before he reached for the bear spray. But, as
we will discuss, there was substantial evidence the defendant reached
towards the canister of bear spray first and, in fact, caused deputy Paukovits
to reach towards him. Under the governing standard of appellate review, we
presume the jury credited and relied on this evidence.
7
backseat. At this point, the deputies believed they had probable cause to
arrest the defendant for assaulting peace officers.
Meanwhile, deputy Patmon ran to his patrol unit and retrieved his
certified K-9 partner, Bono. He screamed “stop fighting” several times,
warned he would send the dog, and commanded the defendant to put his
hands on the ceiling. The defendant did not comply. About 30 seconds later,
deputy Paukovits opened the rear passenger door of the defendant’s car and
deputy Patmon deployed Bono. Bono jumped into the car and bit the
defendant’s leg.
As Bono was jumping into the car, the defendant pulled out a 15-inch
blade with a sharpened edge and a serrated back end. He slashed it across
Bono’s face, causing him to sustain a large gash near his eye and nose.
Deputy Patmon recalled Bono while the defendant closed the rear passenger
door and climbed back into the front seat.
Corporal Villalobos and other members of the law enforcement team
repeatedly screamed at the defendant to drop his knife and exit the car, but
he did not comply. Instead, he howled, asked what he did wrong, and
screamed for water and help. Twice, he yelled at the officers to “put a bullet”
in his head. Throughout this encounter, the defendant waived his knife
around and the officers kept their service weapons trained on him.
About five minutes after deputy Patmon deployed Bono, corporal
Villalobos approached the vehicle and sprayed the defendant with more OC
spray through an open window. He intended to disorient the defendant, but
the spray had minimal effect. A short time later, the defendant tried to crawl
out of the car through the driver-side door while holding a large, indiscernible
black object. Fearing for the safety of his partners, deputy Patmon shot the
8
defendant with a beanbag shotgun and struck him in the lower part of his
back.
The defendant retreated back into his car and procured a pellet gun
that resembled a lethal handgun. He yelled at the officers to shoot him and
pointed the pellet gun at both himself and the roof of his car. He also fired
the pellet gun two or three times into the roof. Based on the noise the gun
produced, corporal Villalobos determined it was a pellet gun—not a lethal
firearm. He notified the other officers accordingly.
Additional deputies arrived and trained both lethal weapons and non-
lethal devices on the defendant. They repeatedly warned him to put down
the knife and the gun, put his hands up, and exit the vehicle. The defendant
did not comply. At that point, one of the deputies shot a beanbag shotgun at
the defendant and struck him.
The defendant pointed his pellet gun at a deputy, prompting the law
enforcement team to use multiple non-lethal and less-lethal devices on him.
One deputy fired a beanbag shotgun at him, another deputy fired a pepper
ball gun at him, and a third deputy tased him. Deputy Patmon dragged the
disoriented defendant out of his car through a broken window and the law
enforcement team detained him until paramedics arrived.
III
DISCUSSION
A. Substantial Evidence Supported the Defendant’s Convictions
The defendant challenges his convictions for resisting an executive
officer, harming a police dog, animal cruelty, and brandishing an imitation
firearm in a threatening manner, on grounds that there was insufficient
evidence to support the convictions. We reject the defendant’s sufficiency-of-
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the-evidence challenges and conclude ample evidence supported each
conviction.
1. Standard of Review
We apply the substantial evidence standard of review to assess the
sufficiency of the evidence supporting a criminal conviction. (People v.
Penunuri (2018) 5 Cal.5th 126, 142.) “ ‘[W]e review the whole record to
determine whether any rational trier of fact could have found the essential
elements of the crime … beyond a reasonable doubt. [Citation.] The record
must disclose substantial evidence to support the verdict—i.e., evidence that
is reasonable, credible, and of solid value—such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt. [Citation.] In
applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced from the evidence. [Citation.]
“Conflicts and even testimony [that] is subject to justifiable suspicion do not
justify the reversal of a judgment, for it is the exclusive province of the trial
judge or jury to determine the credibility of a witness and the truth or falsity
of the facts upon which a determination depends. [Citation.] We resolve
neither credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]” [Citation.] A reversal for insufficient evidence “is
unwarranted unless it appears ‘that upon no hypothesis whatever is there
sufficient substantial evidence to support’ ” the jury’s verdict.’ ” (Ibid.)
2. Substantial Evidence Supported the Defendant’s Convictions for
Resisting an Executive Officer (Counts 2–4)
The defendant was convicted of three counts of resisting an executive
officer in violation of section 69, subdivision (a), for spraying deputy
Paukovits, corporal Villalobos, and deputy Patmon with bear spray.
10
Section 69, subdivision (a) provides, in relevant part, that “[e]very
person … who knowingly resists, by the use of force or violence, [an
executive] officer, in the performance of his or her duty, is punishable by a
fine … or by imprisonment … or by both such fine and imprisonment.”4 An
essential element of the offense of resisting an executive officer is that the
officer was lawfully engaged in the performance of his or her duties at the
time of the defendant’s resistance. (People v. Murillo (2021) 71 Cal.App.5th
1019, 1022–1023; People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1418.)
The defendant contends there was insufficient evidence to prove the
officers were lawfully engaged in the performance of their duties when he
resisted them—i.e., when he sprayed them with bear spray. He argues they
did not act lawfully because they did not provide him with an advisement
that must be given whenever an officer conducts an involuntary detention
under Welfare and Institutions Code section 5150.
Welfare and Institutions Code section 5150 “allows law enforcement
officers and various medical professionals to bring an individual to an
appropriate facility for assessment, evaluation, and treatment for up to
72 hours where there is ‘ “probable cause to believe that the person is, as a
result of mental disorder, a danger to others, or to himself or herself, or
gravely disabled.” ’ ” (Julian v. Mission Community Hospital (2017) 11
Cal.App.5th 360, 375.) It requires the officer or medical professional to give
an oral advisement to the person “at the time he or she is first taken into
custody.” (Welf. & Inst. Code, § 5150, subd. (g)(1).) The advisement must
include, in substantial form, the following information: (1) the name of the
4 A defendant can violate section 69, subdivision (a), in another way—by
“attempting by threats or violence to deter or prevent an officer from
performing a duty imposed by law.” (In re Manuel G. (1997) 16 Cal.4th 805,
814.) However, the jury was not instructed on this theory of liability.
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officer or medical professional and the agency with which he or she is
associated; (2) the fact the person is “not under criminal arrest,” but is being
taken for an examination by mental health professionals; (3) the name of the
facility where the examination will be conducted; and (4) the fact the person
“will be told [his or her] rights by the mental health staff.” (Ibid.)
It is undisputed the law enforcement officers in this case did not
provide the defendant with an oral advisement substantially in the form set
forth in Welfare and Institutions Code section 5150. Nonetheless, contrary to
the defendant’s claim, the officers’ failure to give the oral advisement did not
render their conduct unlawful. Critically, an oral advisement is only required
“at the time [a person] is first taken into custody.” (Welf. & Inst. Code,
§ 5150, subd. (g)(1), italics added.) Here, there was substantial evidence from
which a rational jury could find that the defendant was not yet in custody at
the time he reached for the canister of bear spray; therefore, the officers’ duty
to provide the defendant with an oral advisement had not yet arisen.
“Whether a person is in custody is an objective test; the pertinent
question being whether the person was formally arrested or subject to a
restraint on freedom of movement of the degree associated with a formal
arrest.” (People v. Linton (2013) 56 Cal.4th 1146, 1167 [defining custody in
the context of warnings required by Miranda v. Arizona (1966) 384 U.S. 436];
see California v. Beheler (1983) 463 U.S. 1121, 1125 [“the ultimate inquiry is
simply whether there is a ‘formal arrest or restraint on freedom of movement’
of the degree associated with a formal arrest”].) “ ‘[C]ustody must be
determined based on how a reasonable person in the [defendant’s] situation
would perceive his circumstances.’ ” (Linton, at p. 1167.)
At the time the defendant reached for the canister of bear spray, he
was seated in his own vehicle—not in a law enforcement vehicle, jail, or
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prison. He was not handcuffed or subject to physical restraint. None of the
officers had informed him that he was under arrest. Nor had they even
notified him that they intended to detain him in a mental health facility.
Although deputy Paukovits had put on his gloves and tried to coax the
defendant out of the car voluntarily in anticipation that he might soon detain
the defendant for a mental health evaluation, neither he nor the other
officers had effectuated that plan by the time the defendant reached towards
the canister of bear spray, which he then used to spray the officers in the
face. From this evidence, a rational jury could find that the defendant was
not yet subject to a formal arrest or an analogous restraint on his freedom of
movement. Thus, a rational jury could find that he was not in custody.
In his appellate briefs, the defendant argues the officers took him into
custody, or at minimum were “in the process” of taking him into custody, by
the time he reached for the canister of bear spray. He claims deputy
Paukovits lunged towards him and tried to seize him before he reached for
the bear spray—actions that, in the defendant’s view, placed him in custody.
However, at trial, deputy Paukovits testified he only reached into the
defendant’s car “when [the defendant] was grabbing for the bear spray,” and
he responded affirmatively when he was asked whether the defendant’s act of
grabbing for the bear spray was the reason he reached into the car. Deputy
Paukovits added, “When I told [the defendant] I wanted to get him some help,
he started reaching down to manipulate [the canister] and that’s when I went
into the car.” Footage of the incident recorded on deputy Paukovits’ body
worn camera was played for the jury as well. Under the applicable standard
of appellate review, we evaluate the evidence in the light most favorable to
the judgment and presume in support of the judgment the existence of every
fact the jury could reasonably have deduced. Based on deputy Paukovits’
13
testimony, as well as the body worn camera footage, a jury could reasonably
find the defendant reached for the bear spray first, thus triggering the
regrettable chain of events that followed.
The defendant also claims the law enforcement officers were not
lawfully engaged in the performance of their duties because they employed
excessive force against him before he reached for the bear spray. (People v.
Sibrian (2016) 3 Cal.App.5th 127, 133 [“An officer using excessive force is not
acting lawfully.”].) According to the defendant, the officers “physically
seiz[ed] [him] and dragg[ed] him from the car” before he reached for the
canister. However, as just discussed, substantial evidence disproves the
defendant’s proffered chronology of events. In other words, substantial
evidence proved the defendant reached for the bear spray first.
Further, the appellate record does not show that the officers exerted
excessive force in any other way. “The use of excessive force by law
enforcement officers is analyzed under the Fourth Amendment’s objective
reasonableness requirement for a seizure of the person.” (People v. Brown
(2016) 245 Cal.App.4th 140, 158, citing Graham v. Connor (1989) 490 U.S.
386.) “Under Graham, ... the question .. is whether the amount of force the
officers used in making the arrest was objectively unreasonable given the
circumstances they faced.” (Allgoewer v. City of Tracy (2012) 207 Cal.App.4th
755, 763.) Careful attention must be paid “to the facts and circumstances of
each particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
flight.” (Graham, at p. 396.) “The ‘reasonableness’ of a particular use of force
must be judged from the perspective of a reasonable officer on the scene,
rather than with the 20/20 vision of hindsight.” (Ibid.)
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It is undisputed deputy Paukovits grabbed and tried to pin down the
defendant’s arm. Viewing the evidence in the light most favorable to the
judgment, we conclude his conduct was reasonable. The defendant had prior
charges for domestic violence and resisting an executive officer. Body worn
camera footage showed him acting in a manic, unpredictable, and non-
compliant manner. It depicted him making suicidal and violent statements—
including statements he “need[ed] a bullet between [his] eyes,” he had
“nothing to live for,” he was “done with this world,” and he regretted not
killing his baby’s mother. Moreover, as just discussed, deputy Paukovits
testified he grabbed the defendant’s arm only after the defendant reached for
a weapon—i.e., the canister of bear spray. All of this evidence suggested the
defendant posed a substantial and immediate danger of bodily harm to
himself and the law enforcement team. Given these facts and circumstances,
a reasonable jury could find deputy Paukovits’s conduct was a reasonable
exertion of force intended to ensure the safety of himself and others.
3. Substantial Evidence Supported the Defendant’s Misdemeanor
Conviction for Harming a Police Animal (Count 8)
The defendant was convicted of harming a police dog in violation of
section 600, subdivision (a), for slashing Bono the K-9 unit with a knife.
Section 600, subdivision (a), provides in relevant part, “Any person who
willfully and maliciously and with no legal justification … cuts[] [or] stabs[]
… a dog under the supervision of[] a peace officer in the discharge or
attempted discharge of his or her duties[] … is guilty of a public offense.”
The defendant argues there was insufficient evidence to support his
conviction for harming a police dog because deputy Patmon was not lawfully
discharging his duties at the time he slashed Bono. He asserts deputy
Patmon used excessive force by deploying Bono and commanding him to bite.
We are not persuaded.
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As just discussed, the defendant exhibited manic behaviors and made
violent and suicidal statements throughout his encounter with the law
enforcement team, including while deputy Patmon was present. Then, he
assaulted three members of the sheriff’s department with a dangerous
chemical agent, which—in the words of deputy Paukovits—“burn[ed] and
pretty much … weld[ed]” the officers’ eyes shut. In the aftermath of this
assault, deputy Patmon warned the defendant several times to stop fighting,
instructed him to put his hands up on the car ceiling, announced he had a
“sheriff’s department canine,” and cautioned he would “send the dog.” The
defendant did not comply with these warnings or submit to arrest.
Under these circumstances, a rational jury could find deputy Patmon’s
deployment of Bono was reasonable. As deputy Patmon testified, he deployed
Bono because the defendant had just assaulted three members of the law
enforcement team and he was not complying with commands. Thus, he posed
an ongoing threat to the safety of the law enforcement team, as well as
passing motorists. Further, as deputy Patmon explained, there was a
possibility the defendant could “drive away” and try to escape.5 According to
deputy Patmon, they therefore needed a “less lethal option” to “get him out of
the car” and submit to arrest; hence, he deployed Bono. In light of the
defendant’s violent and assaultive behavior, his non-compliance, his risk of
flight, and the continuing threat of harm he posed, a rational jury could find
5 The defendant argues he presented no flight risk because he told the
deputies his car was broken down. However, at the time of the incident, a
reasonable officer could have disbelieved the defendant, who had made
numerous fantastical and nonsensical statements during his encounter with
law enforcement. Further, the defendant was stationed inside the car
throughout the encounter, which prevented the deputies from independently
verifying that his car was in fact non-operational.
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deputy Patmon’s deployment of Bono was not excessive. Therefore, it could
find he acted reasonably and lawfully in the discharge of his duties.
Next, the defendant claims substantial evidence did not prove he acted
without legal justification—one of the requirements to sustain a conviction
under section 600, subdivision (a). He argues he engaged in lawful self-
defense by slashing Bono with a knife, and substantial evidence did not show
otherwise. Once again, we disagree.
A rational jury could find the defendant was the initial aggressor when
he preemptively reached for the canister of bear spray, which he then used to
debilitate three officers. Further, as noted, a rational jury could find the
officers exerted reasonable force. Because a jury could reach both of these
findings, it could likewise find the defendant did not act in lawful self-defense
when he slashed Bono instead of submitting to arrest. (In re Christian S.
(1994) 7 Cal.4th 768, 773, fn. 1 (Christian S.) [“It is well established that the
ordinary self-defense doctrine—applicable when a defendant reasonably
believes that his safety is endangered—may not be invoked by a defendant
who, through his own wrongful conduct (e.g., the initiation of a physical
assault or the commission of a felony), has created circumstances under
which his adversary’s attack or pursuit is legally justified.”]; § 834a [“If a
person has knowledge, or by the exercise of reasonable care, should have
knowledge, that he is being arrested by a peace officer, it is the duty of such
person to refrain from using force or any weapon to resist such arrest.”].)
Finally, the defendant argues the conviction must be reversed because
substantial evidence did not prove he acted “maliciously.” For purposes of
section 600, subdivision (a), a defendant acts “maliciously” when he or she
harbors “ ‘an intent to do a wrongful act.’ ” (People v. Adams (2004) 124
Cal.App.4th 1486, 1494 (Adams); see also id. at pp. 1493–1494 [noting “the
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term ‘maliciously’ as used in section 600, subdivision (a), does not have a
technical meaning different from its common meaning,” and defining
“ ‘[m]alice’ … in non-legal settings as the ‘desire to cause pain, injury, or
distress to another’ or the ‘intent to commit an unlawful act or cause harm
without legal justification or excuse’ ”].)
As noted, there was substantial evidence from which a rational jury
could find the defendant was the initial aggressor, the members of the law
enforcement team used reasonable force, and the defendant did not act in
lawful self-defense. Thus, a rational jury could find the defendant harbored
an intent to do a wrongful act when he slashed Bono with a knife.
4. Substantial Evidence Supported the Defendant’s Animal Cruelty
Conviction (Count 5)
The jury also found the defendant guilty of animal cruelty in violation
of section 597, subdivision (a), for slashing Bono with a knife. Section 597,
subdivision (a) proscribes animal cruelty in the following terms: “Except as
[otherwise] provided … every person who maliciously and intentionally
maims, mutilates, tortures, or wounds a living animal, or maliciously and
intentionally kills an animal, is guilty of a crime.”
The defendant claims there was insufficient evidence to support his
animal cruelty conviction because substantial evidence did not prove he acted
maliciously. Like the word “maliciously” in section 600, subdivision (a), the
word “maliciously” in section 597, subdivision (a), means an intent to do a
wrongful act. (People v. Dunn (1974) 39 Cal.App.3d 418, 420–421; see
Adams, supra, 124 Cal.App.4th at p. 1494, fn. 7.)
In our discussion of the sufficiency of the evidence underpinning the
harming a police dog conviction, we concluded there was substantial evidence
to support a finding that the defendant acted maliciously when he slashed
Bono with a knife. That conclusion applies equally here. Because there was
18
substantial evidence the defendant acted maliciously, his sufficiency-of-the-
evidence challenge fails with respect to the animal cruelty conviction.
5. Substantial Evidence Supported the Defendant’s Conviction for
Brandishing an Imitation Firearm (Count 7)
The defendant was found guilty of one misdemeanor count of
brandishing an imitation firearm in a threatening manner in violation of
section 417.4. Section 417.4 provides, “Every person who, except in self-
defense, draws or exhibits an imitation firearm … in a threatening manner
against another in such a way as to cause a reasonable person apprehension
or fear of bodily harm is guilty of a misdemeanor punishable by
imprisonment in a county jail for a term of not less than 30 days.”
The defendant argues the brandishing conviction must be reversed
because there was insufficient evidence to establish that he was not acting in
self-defense when he exhibited the pellet gun. This argument is without
merit as well.
As we have previously discussed, there was substantial evidence in the
record from which a rational jury could find that the defendant was the
initial aggressor and, furthermore, that the law enforcement team used
reasonable force in response to the defendant’s aggression—both when
deputy Paukovits grabbed the defendant’s arm and when deputy Patmon
deployed Bono. On this basis, there was substantial evidence from which a
jury could find the defendant did not act in lawful self-defense when he
brandished his pellet gun. (Christian S., supra, 7 Cal.4th at p. 773, fn. 1.)
Additionally, substantial evidence supported a finding that the
defendant did not reasonably believe he must resort to an immediate use of
force to defend himself against an imminent danger of bodily injury. (People
v. Clark (2011) 201 Cal.App.4th 235, 250 (Clark).) Before the defendant
brandished his pellet gun, the officers told him—over and over again—they
19
were there to help. Time and again, they told him to exit his car and drop his
knife. At one point, an officer said, “Nobody wants to shoot you, Richard. We
just need to get you some help.” Soon after, the defendant begged the officers
to “put a bullet in [his] head,” and two of the officers unequivocally
responded, “No.” One officer added, “Nobody wants to do that.”
We are mindful the defendant pulled the pellet gun out while he and
the law enforcement team were engaged in a highly-charged standoff, one in
which the defendant had already suffered injuries. But the law enforcement
team’s statements reflect a concerted effort to diffuse the tense situation.
The officers repeatedly conveyed they did not wish to “put a bullet” in the
defendant, and they announced the steps he should take to surrender.
Viewing this evidence in the light most favorable to the judgment, we
conclude a jury could rationally find that the defendant did not reasonably
believe an immediate use of force was necessary to defend himself against an
imminent danger of serious bodily injury. Because a rational jury could
reach this conclusion, it could likewise reach a finding that the defendant did
not act in lawful self-defense when he brandished his pellet gun.
B. The Defendant has not Established Prejudicial Instructional Error
Next, the defendant claims the trial court had a duty to instruct the
jury, sua sponte, on the affirmative defense of self-defense for each charge.
A trial court must instruct the jury, sua sponte, on defenses relied on
by the defense or defenses that are supported by substantial evidence and not
inconsistent with the defense’s theory of the case. (People v. Rangel (2016) 62
Cal.4th 1192, 1224.) “Substantial evidence supporting sua sponte instruction
on a particular defense is evidence that is ‘sufficient to “deserve consideration
by the jury, i.e., ‘evidence from which a jury composed of reasonable [persons]
could have concluded’ ” ’ that the particular facts underlying the instruction
did exist.” (People v. Brooks (2017) 3 Cal.5th 1, 75.)
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The trial court committed no instructional error with respect to count 7
(brandishing an imitation firearm) or count 8 (harming a police dog), because
it gave a standalone self-defense instruction for both counts. It instructed the
jury with CALCRIM No. 3470, which provided, “Self-defense is a defense to
Counts 7 and 8. The defendant is not guilty of those crimes if he used force
against the other person in lawful self-defense.” The instruction then
identified the requirements for lawful self-defense and stated, “The People
have the burden of proving beyond a reasonable doubt that the defendant did
not act in lawful self-defense in Counts 7 and 8. If the People have not met
this burden, you must find the defendant not guilty of those crimes.” 6 Given
the court’s self-defense instruction, the defendant’s instructional error
argument fails for both of these counts.7
For the remaining counts, we do not decide whether there was
instructional error because the asserted error was harmless under any
standard of prejudice. With respect to counts 2–4 (resisting an executive
officer), the court instructed the jury with CALCRIM No. 2670, which stated,
“The People have the burden of proving beyond a reasonable doubt that [the
deputies] were lawfully performing their duties as a peace officer when the
6 Additionally, for count 7, the court gave CALCRIM No. 985, which
stated, “To prove that the defendant is guilty of this crime, the People must
prove that … [¶] ... [¶] ... When the defendant drew or exhibited the imitation
firearm, he was not acting in self-defense.” And, for count 8, it instructed the
jury that “[t]he People must prove beyond a reasonable doubt that the peace
officer was lawfully performing their duty and that the defendant was not
acting in lawful self-defense at the time the defendant acted.”
7 To the extent the defendant argues the self-defense instruction was
incomplete or in need of clarification, the defendant forfeited his argument by
failing to request any additional or clarifying language in the trial court.
(See People v. Covarrubias (2016) 1 Cal.5th 838, 876–877.)
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defendant acted. … [¶] A peace officer is not lawfully performing his or her
duties if he or she is unlawfully arresting or detaining someone or using
unreasonable or excessive force when making or attempting to make an
otherwise lawful arrest or detention. [¶] ... [¶] If a peace officer uses
unreasonable or excessive force while arresting or attempting to arrest or
detaining or attempting to detain a person, that person may lawfully use
reasonable force to defend himself or herself.”
When the jury convicted the defendant of all three counts of resisting
an executive officer, it necessarily found the officers were lawfully performing
their duties when the defendant resisted them and, further, the defendant
did not use reasonable force to defend himself against excessive or
unreasonable force. Given these findings, the court’s asserted failure to
provide a self-defense instruction was harmless error, to the extent it was
error at all. (People v. Vallejo (2013) 214 Cal.App.4th 1033, 1039 [alleged
error in failing to provide transferred self-defense instruction was harmless
because the jury’s verdicts showed it “necessarily rejected the theory that
appellant had inadvertently shot [the victim] in self-defense”].)
The jury’s verdicts also foreclose a finding of prejudice in connection
with the claim of instructional error for count 5. As noted, the trial court
provided a self-defense instruction for count 8 (harming a police dog), and the
jury found the defendant guilty of the charged crime. When the jury
convicted the defendant of count 8, it necessarily found that the officers
lawfully performed their duties while deploying Bono, and it also rejected the
defendant’s claim that he acted in self-defense by slashing Bono with a knife.
As we will discuss below, the jury convicted the defendant of count 5 (animal
cruelty) for the same conduct giving rise to count 8. Given that the jury
decided the defendant did not act in lawful self-defense when he slashed
22
Bono, the defendant suffered no prejudice from the court’s asserted failure to
provide a self-defense instruction for count 5. (Clark, supra, 201 Cal.App.4th
at p. 251 [where self-defense instruction was provided for one charge and a
second charge was based on the same conduct, the alleged failure to provide
self-defense instruction for second charge was harmless error].)
Finally, the alleged instructional error was harmless in connection with
count 1 (exhibiting a deadly weapon to an officer to resist arrest). The
defendant claims there was substantial evidence to support a sua sponte self-
defense instruction for count 1 because he exhibited his knife in response to
two examples of excessive force—(1) the deputies’ alleged efforts to seize him
at the beginning of the scuffle; and (2) deputy Patmon’s deployment of Bono.
However, as just noted, the guilty verdicts on counts 2–4 showed that
the jury necessarily rejected the defendant’s argument that the deputy
sheriffs exerted excessive and unreasonable force when they allegedly tried to
seize him from his car. Likewise, the guilty verdict on count 8 meant the jury
rejected the defendant’s assertion that deputy Patmon exerted excessive force
by deploying Bono. Because these verdicts show that the jury rejected both of
the defendant’s claims of excessive force, it surely would have rejected his
self-defense argument in connection with count 1 as well.
C. The Court Erred by Imposing Multiple Punishments for a Single Act
The jury found the defendant guilty of animal cruelty (count 5) and
harming a police dog (count 8). For the animal cruelty conviction, the court
sentenced the defendant to the mid-term of two years in prison, plus one year
consecutive and one year concurrent for the attached weapons
23
enhancements.8 For the harming a police dog misdemeanor conviction, the
court sentenced him to 364 days with credit for time served.
The defendant asserts the court violated section 654 when it imposed
these sentences because it subjected him to multiple punishments for a single
act—that is, his single act of slashing Bono with a knife. At the time the
defendant was sentenced, section 654 provided in relevant part, “An act or
omission that is punishable in different ways by different provisions of law
shall be punished under the provision that provides for the longest potential
term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.” (Former § 654, subd. (a).)
The People describe this as a “close issue.” However, they ultimately
concede “both crimes were completed by a single physical act toward a single
victim (i.e., the first use of the knife against Bono the dog).” We accept the
People’s well-taken concession. In accordance with the laws in effect at the
time, the trial court should have imposed the sentence for the conviction
carrying the longest potential term of imprisonment (the animal cruelty
conviction) and stayed execution of sentence for the other conviction (the
conviction for harming a police dog). (People v. Reed (2006) 38 Cal.4th 1224,
1227 [“When … section 654 prohibits multiple punishment, the trial court
must stay execution of sentence on the convictions for which multiple
punishment is prohibited.”].) By failing to do so, the court erred.
After the defendant was sentenced, the Legislature enacted Assembly
Bill No. 518, which amended Penal Code section 654, effective January 1,
2022. In relevant part, section 654 now states: “An act or omission that is
punishable in different ways by different provisions of law may be punished
8 The court struck the on-bail enhancement for sentencing purposes for
all of the counts to which it applied, including the animal cruelty conviction.
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under either of such provisions, but in no case shall the act or omission be
punished under more than one provision.” (§ 654, subd. (a).) “Previously,
where … section 654 applied, the sentencing court was required to impose the
sentence that ‘provides for the longest potential term of imprisonment’ and
stay execution of the other term. [Citation.] As amended by Assembly Bill
[No.] 518 … section 654 now provides the trial court with discretion to impose
and execute the sentence of either term, which could result in the trial court
imposing and executing the shorter sentence rather than the longer
sentence.” (People v. Mani (2022) 74 Cal.App.5th 343, 379 (Mani).)
We asked the parties to submit supplemental letter briefs concerning
whether Assembly Bill No. 518 applies to the defendant’s case. They filed
briefs agreeing Assembly Bill No. 518 applies retroactively to the defendant’s
case because his judgment is not final and the legislation constituted an
ameliorative change to the criminal law. We agree with the parties and
conclude Assembly Bill No. 518 applies retroactively to the defendant’s case.
(People v. Jones (2022) 79 Cal.App.5th 37, 46 (Jones) [Assembly Bill No. 518
was an ameliorative change to the law that applies retroactively to nonfinal
judgments]; Mani, supra, 74 Cal.App.5th at p. 379 [same].)
Although the People concede Assembly Bill No. 518 applies
retroactively to the defendant’s case, they argue it would be “futile” to
remand the matter for resentencing. According to the People, there is “no
possibility” the trial court would exercise its discretion under section 654 and
reduce the defendant’s sentence, given that it ostensibly could have imposed
a lower sentence when it initially sentenced the defendant—for example, by
selecting the lower term for convictions, running terms concurrently, or
dismissing weapons enhancements altogether—yet it did not do so.
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“Defendants are entitled to sentencing decisions made in the exercise of
the ‘informed discretion’ of the sentencing court. [Citations.] A court which
is unaware of the scope of its discretionary powers can no more exercise that
‘informed discretion’ than one whose sentence is or may have been based on
misinformation regarding a material aspect of a defendant’s record.” (People
v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8.) In such circumstances, the
appropriate remedy is to remand for resentencing unless the record “clearly
indicate[s]” that the trial court would have reached the same conclusion “even
if it had been aware that it had such discretion.” (Ibid.; see also People v.
Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Here, the record does not clearly indicate the trial court would impose
the same sentence if it knew it had discretion to impose a lower one. When
the court sentenced the defendant, it did not impose the maximum sentence
or make statements suggesting the defendant should be incarcerated for the
longest possible term. The court did not accept the recommendations of the
probation department or the district attorney to impose a nine-year prison
term, instead opting to impose a more lenient sentence of six years. Further,
when the court imposed the middle term for count 5, rather than the upper
term recommended by the probation department and the district attorney, it
opined, “the injuries were not egregious to the animal.” For all these reasons,
we cannot say it would be a futile or idle act to remand the matter for
resentencing.
We offer no opinion on how the trial court should exercise its discretion
under section 654 during the resentencing proceeding. However, we note
that the court, during resentencing, may reconsider any other components of
the aggregate sentence in light of changed circumstances. (Jones, supra, 79
Cal.App.5th at p. 46; see also People v. Buycks (2018) 5 Cal.5th 857, 893.)
26
D. The Parties May Present their Arguments Concerning the Restitution
Fine and the Stayed Parole Revocation Restitution Fine on Remand
The trial court imposed a $10,000 restitution fine on the defendant
under section 1202.4, subdivision (b), and it imposed, but stayed, a $10,000
parole revocation restitution fine under section 1202.45.
The defendant claims he lacks the ability to pay these fines. Based
largely on his alleged inability to pay, the defendant argues the court’s
imposition of the fines violates the excessive fines clauses of the federal and
state constitutions (U.S. Const., 8th Amend.; Cal. Const., art. 1, § 17),
impinges upon his due process rights under the federal and state
constitutions (U.S. Const., 14th Amend.; Cal. Const., art. 1, § 7), and
constitutes an abuse of discretion under state law (§ 1202.4, subd. (d)).
Because we are vacating the sentence and remanding the matter for
resentencing purposes, we do not address the defendant’s contentions
concerning the fines at issue. The parties may present their arguments
concerning the fines to the trial court on remand.
IV
DISPOSITION
The sentence is vacated and the matter is remanded for the trial court
to resentence the defendant. In all other respects, the judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
DATO, J.
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