People v. Bryson CA3 ( 2021 )

Filed 2/25/21 P. v. Bryson CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Placer)
----
THE PEOPLE, C083989
Plaintiff and Respondent, (Super. Ct. No. 62147420)
v.
ROBBEN LUKE BRYSON,
Defendant and Appellant.
Defendant Robben Luke Bryson was charged with four counts of resisting an
executive officer involving four peace officers. (Pen. Code, § 69.)1 A jury found him
guilty of one count but was unable to reach a verdict on the remaining counts. After the
court declared a mistrial on those counts, the prosecutor dismissed them. In a bifurcated
proceeding, defendant admitted that he had served two prior prison terms (§ 667.5, subd.
1 Undesignated statutory references are to the Penal Code in effect at the time of the
charged offenses.
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(b)) and was out on bail at the time he committed the resisting offense (§ 12022.1, subd.
(b)). The trial court sentenced defendant to a split sentence of six years, with five years
in county jail and one year on mandatory supervision. The court suspended execution of
the two-year sentence imposed for the out-on-bail enhancement pending the outcome of
another case against defendant.
On appeal, defendant contends the trial court erred in failing to instruct the jury
that misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) is a lesser included
offense of resisting an executive officer (§ 69). In supplemental briefing, filed after
defendant served his sentence, he asserts that the two section 667.5, subdivision (b) prior
prison term enhancements should be stricken pursuant to Senate Bill 136 (S.B. 136).
We strike defendant’s two section 667.5, subdivision (b) prior prison term
enhancements and otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Charges and Enhancement Allegations
Defendant was charged with four counts of resisting an executive officer. (§ 69.)
The counts involved Deputy Bryant (count one), Sergeant Tindall (count two), Officer
Rayback (count three), and Officer McCauley (count four). It was further alleged that
defendant had served two prior prison terms (§ 667.5, subd. (b)) and was out on bail at
the time of the offenses (§ 12022.1, subd. (b)).
Prosecution’s Case
The charges in this case arose from a traffic stop and arrest of defendant. The
traffic stop and arrest were captured on the in-car camera of a police vehicle and played
for the jury. Additionally, four police officers testified. We have reviewed the video.
While on routine patrol, Deputy Roger Bryant of the Placer County Sheriff’s
Department observed defendant run a red light on his motorcycle. Deputy Bryant
immediately turned his patrol vehicle around and pursued defendant at a high rate of
speed. Given the speed and distance he had to travel to catch defendant, Deputy Bryant
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estimated that defendant was driving his motorcycle at speeds up to 90 to 100 miles per
hour. The speed limit was 50 miles per hour.
When Deputy Bryant caught up to defendant at a traffic light, he advised dispatch
that he intended to conduct a traffic stop. Shortly after the light turned green, Deputy
Bryant activated his overhead lights and turned on his siren. Defendant, however, did not
immediately stop. Instead, he passed a vehicle by moving into the lane for oncoming
traffic, then moved back into his lane and continued to drive his motorcycle for a short
distance until he turned into a parking lot at Thunder Valley Casino. Deputy Bryant
parked near defendant and immediately got out of his vehicle. At that moment,
defendant, who was highly agitated, ran towards Deputy Bryant, yelling and screaming.
Deputy Bryant ordered him to get on the ground. After defendant stopped moving
toward Deputy Bryant and calmed down, another officer arrived. The other officer was
carrying a baton and Taser on his belt, which caused defendant to become highly agitated
again.
Because defendant tried to walk away several times and had to be repeatedly told
to come back, additional officers were requested. City of Lincoln Police Officers Jesse
McCauley and Todd Rayback, as well as Sergeant Joshua Tindall of the Placer County
Sheriff’s Department were dispatched to the scene. When they arrived, defendant was
very agitated, emotional, and acting “extremely unpredictable.”
While Deputy Bryant performed a records check, the other officers monitored
defendant. During the records check, defendant told the officers that he was not going
back to jail.
The records check revealed that defendant’s California driver’s license was
suspended, he was on postrelease community supervision (PRCS),2 and had a criminal
2 When defendant testified, he explained that he was on PRCS after serving a sentence
for unlawful possession of a firearm by a felon.
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history involving robbery, drugs, stolen property, unlawful possession of a firearm by a
felon, and vehicle theft. The records check further revealed that defendant was not the
registered owner of the motorcycle, and that the motorcycle’s registration was not
current, which indicated to Deputy Bryant that the motorcycle might be stolen.
Following the records check, Deputy Bryant decided to arrest defendant for
operating a vehicle without a valid license. He opted to handcuff defendant and further
detain him until it could be determined whether or not the motorcycle was stolen.
When Deputy Bryant informed defendant that he was going to be detained
pending an investigation regarding whether the motorcycle was stolen, defendant stated
that he was not going to be detained and attempted to flee.3 Defendant turned away from
Deputy Bryant and initially moved in one direction as if the try to flee, but he was boxed-
in by officers. Defendant quickly changed direction and as he moved in a different
direction, he spun his body and swung his arms to prevent Deputy Bryant from
controlling him.4 At that moment, Officer Rayback moved toward defendant and
wrapped both his arms around defendant’s upper body. Defendant, however, was able to
break free from Officer Rayback’s grasp by spinning away from him. Defendant then
swung one of his arms twice at the officers as he was forced to the ground. While he was
on the ground, he was repeatedly told to stop resisting and threatened with the use of a
Taser. He refused to comply with the orders to stop resisting and had to be physically
3 We note that the video taken by the camera in the police vehicle clearly shows the
events leading to defendant’s arrest. To the extent the testimony given by the officers at
trial differs from the video evidence, we summarize the facts as shown by the video. For
instance, contrary to the testimony at trial, the video does not show that defendant took a
fighting stance. Nor does the video show that defendant ran toward Officer Rayback and
ducked his head, causing it to strike Officer Rayback in the cheek.
4Although not entirely clear from the video, it appears that defendant might have pushed
Deputy Bryant as he was spinning away from him.
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restrained by four officers because he was kicking his legs, squirming, refusing to put his
arms behind his back, and trying to push his body up off the pavement. He continued to
struggle even after he was handcuffed.
Defense Case
Defendant testified. He did not deny he failed to stop at a red light. Instead, he
said he made a right turn on a red light after placing one of his feet on the ground.
Defendant acknowledged he did not immediately stop when Deputy Bryant
attempted to pull him over. He said he continued to ride his motorcycle because he did
not want to leave it on the side of the road. He further testified he told Deputy Bryant
that the owner of the motorcycle gave him permission to use it, and that he had his
friend’s phone number in his phone.
Defendant also acknowledged that he yelled at Deputy Bryant, but denied that he
became aggressive when Deputy Bryant told him that he was going to be further
detained. However, defendant admitted that he became upset and “flighty,” told the
officers he was not going to be detained, and used force to get away from them. He
claimed, however, that he did not use “unnecessary force,” meaning he did not use more
force than was used against him, and did not try to harm any of the officers. He said he
was immediately taken to the ground after he backed into and spun away from an officer.
Defendant also claimed he did not try to hit or kick any of the officers, and he did
not use any force when the officers were taking him to the ground. He claimed his arms
were moving in a “swatting” motion when he was being forced to the ground, not a
“swinging” motion. He testified that he was just trying to keep his balance.
Defense counsel requested instruction on section 148, subdivision (a)(1), as a
lesser included offense to section 69. The trial court refused, finding that there was
insufficient evidence to support the instruction.
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Verdict and Sentencing
The jury found defendant guilty on count three—resisting Officer Rayback by the
use of force or violence, but could not reach a verdict on the remaining counts. The trial
court declared a mistrial on those counts. In a bifurcated proceeding, defendant admitted
the sentencing enhancement allegations.
The trial court sentenced defendant to a split sentence of six years, with five years
in county jail and one year on mandatory supervision. The trial court suspended
execution of the two-year sentence imposed on the out-on-bail enhancement pending the
outcome of another case against defendant. Thereafter, the court granted the prosecutor’s
motion to dismiss the remaining counts.
DISCUSSION
I. Instruction on Lesser Included Offense of Resisting a Peace Officer
Defendant contends that the trial court prejudicially erred in failing to instruct the
jury that misdemeanor resisting a peace officer (§ 148, subd. (a)(1)) is a lesser included
offense of resisting an executive officer (§ 69).5 We disagree.
“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) 19 Cal.4th 108, 112.)
There are two tests used “in determining whether an uncharged offense is
necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory
5 Police officers are “executive officer[s]” under section 69. (People v. Williams (1999)
72 Cal.App.4th 1460, 1463, fn. 5.)
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pleading’ test. Under the elements test, if the statutory elements of the greater offense
include all of the statutory elements of the lesser offense, the latter is necessarily included
in the former. Under the accusatory pleading test, if the facts actually alleged in the
accusatory pleading include all of the elements of the lesser offense, the latter is
necessarily included in the former.” (People v. Reed (2006) 38 Cal.4th 1224, 1227-
1228.) However, the court need not instruct on lesser included offenses where the lesser
offense is not supported by the evidence. (People v. Avila (2009) 46 Cal.4th 680, 705.)
As relevant here, section 148, subdivision (a)(1), provides that: “Every person
who willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or
attempt to discharge any duty of his or her . . . employment . . . shall be punished [as a
misdemeanor].” (Italics added.) Force or violence is not an element. Section 69
provides that: “Every person who attempts, by means of any threat or violence, to deter
or prevent an executive officer from performing any duty imposed upon the officer by
law, or who knowingly resists, by the use of force or violence, the officer, in the
performance of his or her duty, is punishable [as a felony or a misdemeanor].” (Italics
added.)
Section 69 provides two distinct ways in which a defendant may violate its
provisions. (People v. Smith (2013) 57 Cal.4th 232, 240-241 (Smith).) Under the second
prong, a defendant may violate the statute by resisting a peace officer by the use of force
or violence.6 (Id. at pp. 240-241.) The prosecution here was based on the second prong.
Defendant argues that there was sufficient evidence from which a rational jury could
conclude that his resistance did not involve the use of force or violence, and as a result,
the trial court should have instructed on the lesser included misdemeanor offense.
6 Under the first prong, a defendant may violate the statute by attempting to deter a
peace officer from performing his or her duties. Actual use of force or violence is not
required.
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The People properly concede that section 148, subdivision (a)(1) is a lesser
included offense of section 69, as pled in this case. However, they contend there was
insufficient evidence to support the instruction. (See Smith, supra, 57 Cal.4th at p. 245
[“[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.” ’ ”]; see
also People v. Breverman (1998) 19 Cal.4th 142, 154.)
Because the prosecutor chose only to prosecute defendant under the second prong,
resisting an executive officer by the use of force or violence, the jury was instructed in
relevant part, as follows: “To prove that the Defendant is guilty of this crime, the people
must prove that, one, the Defendant unlawfully used force or violence to resist an
executive officer. Two, when the Defendant acted, the officer was performing his lawful
duty. And, three, when the Defendant acted, he knew the executive officer was
performing his duty.” As noted, the trial court denied defendant’s request to instruct the
jury on section 148, subdivision (a)(1), as a lesser-included offense of section 69, finding
that there was no substantial evidence to support the instruction.
The trial court did not abuse its discretion in refusing to instruct on the
misdemeanor as a lesser included offense. On this record, which includes a video
recording of the event, no reasonable jury could have concluded that defendant violated
section 148, subdivision (a)(1), but not section 69. The evidence presented at trial
showed that defendant forcibly resisted. The record discloses that defendant had to be
physically taken to the ground by multiple officers, including Officer Rayback, because
he refused to be further detained pending an investigation regarding the owner of the
motorcycle and attempted to flee. Before defendant was taken to the ground, he spun his
body and swung his arms to prevent Deputy Bryant from controlling him. Shortly
thereafter, he broke free from Officer Rayback’s grasp by forcefully spinning away from
him. He then swung his arm at the officers as they attempted to control him. While
defendant testified his arms were moving in a “swatting” motion when he was being
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forced to the ground, not a “swinging” motion, and that he was just trying to keep his
balance, the movement we see depicted in the video recording appears to be a punching
or swinging motion, made twice while he was being taken to the ground. After defendant
was on the ground, he was repeatedly told to stop resisting and threatened with the use of
a Taser. Defendant refused to comply with the orders to stop resisting and had to be
physically restrained by four officers, including Officer Rayback, because he was kicking
his legs, squirming, refusing to put his arms behind his back, and trying to push his body
up off the pavement. He continued to struggle even after he was handcuffed. When
defendant testified, he did not dispute the officers’ characterization of the struggle on the
ground. He also conceded that he used force to move away from the officers.
Accordingly, there was no evidence that defendant committed the lesser offense of
resisting without the use of force or violence. Therefore, the trial court properly refused
to instruct the jury that section 148, subdivision (a), was a lesser included offense of
section 69.
We find support for our decision in People v. Carrasco (2008) 163 Cal.App.4th
978. In Carrasco, the defendant was convicted of resisting an executive officer by force
or violence under section 69 when he resisted arrest after he approached a sheriff’s
station, engaged in an altercation with officers, and placed his hand in a duffle bag while
opening the station door. (Carrasco, at pp. 981-982.) In attempting to arrest him, one
officer grabbed the defendant’s waist while the defendant tried to ride away on a bicycle,
then the officer forced the defendant to the ground, where other officers attempted to
control his arms. (Id. at p. 982.) The defendant “had to be physically taken to the ground
by [an officer] because he refused to comply with . . . repeated orders to remove his hand
from his duffle bag.” When he was on the ground, “he refused to comply with . . .
repeated orders to relax and . . . to ‘stop resisting’ [and] continued to struggle with [the
officers] . . . ‘yelling, kicking [and] cussing,’ and said he would ‘kick [the officers’]
ass[es].’ ” (Id. at pp. 985-986.) The defendant “continued to squirm” and refused to
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surrender his right hand until he was pepper sprayed. (Id. at p. 986.) Like here, “[t]here
was no contrary evidence disputing the officer’s description of the struggle on the floor.”
(Ibid.) The Carrasco court concluded “the jury would have had no rational basis to
conclude [the defendant] wrestled with the officers, for which they convicted him of
resisting or delaying an officer, but the struggle did not involve force or violence. . . .”
(Ibid.; see also People v. Bernal (2013) 222 Cal.App.4th 512, 519 [“a violation of § 69
need not involve any force or violence directed toward the person of an executive
officer”; “[the] force used by a defendant in resisting an officer’s attempt to restrain and
arrest the defendant is sufficient to support a conviction”].)
II. Senate Bill No. 136
When sentence was imposed, the version of section 667.5, subdivision (b) then in
effect provided for a one-year enhancement for each prior prison term served for “any
felony,” with an exception not applicable here. While defendant’s appeal was pending,
the Governor signed Senate Bill 136, which amended section 667.5, subdivision (b) to
limit the application of prior prison term enhancements to people who have served a
sentence for certain sexually violent offenses. (Stats. 2019, ch. 590, § 1, eff. Jan. 1,
2020.) (§ 667.5, subd. (b).) After defendant served his sentence in this matter, he filed
supplemental briefing asking that we strike the prior prison term enhancements.
The parties agree, and we concur, that under the principles articulated in In re
Estrada (1965) 63 Cal.2d 740, 745-748 (Estrada), S.B. 136 applies retroactively to cases
not yet final on appeal because it ameliorates punishment for serving a prior prison term.
(People v. Gastelum (2020) 45 Cal.App.5th 757, 761, 772; People v. Winn (2020) 44
Cal.App.5th 859, 872-873; People v. Lopez (2019) 42 Cal.App.5th 337, 340-342; People
v. Jennings (2019) 42 Cal.App.5th 664, 680-682.) We also agree with the parties that
defendant’s prior prison terms no longer qualify under section 667.5, subdivision (b).
In his supplemental briefing, defendant asserted that his request for relief under
Estrada and S.B. 136 is not moot, even though he had served his sentence. This is so,
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according to defendant, because under People v. Sellner (2015) 240 Cal.App.4th 699,
701, excess custody credits may apply to reduce outstanding fines and fees. While it is
unclear what fees and fines to which defendant is referring, we note that “excess custody
credits may not be applied to reduce victim restitution, a restitution fine, the court
operations assessment, or the court facilities assessment.” (People v. Petri (2020) 45
Cal.App.5th 82, 92-93.) Nevertheless, defendant is entitled to have the prior prison term
enhancements stricken.
DISPOSITION
The judgment is modified to strike the section 667.5, subdivision (b)
enhancements. As so modified, the judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
BLEASE, Acting P. J.
/s/
RENNER, J.
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