People v. Padilla CA4/1 ( 2021 )

Filed 4/8/21 P. v. Padilla CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D077463
Plaintiff and Respondent,
v. (Super. Ct. No. JCF001665)
ALEX PADILLA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Imperial County,
Marco D. Nunez, Judge. Affirmed as modified.
Neil F. Auwarter, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Michael
Pulos, Seth Friedman, and Kathryn Kirshbaum, Deputy Attorneys General,
for Plaintiff and Respondent.
I
INTRODUCTION
A deputy sheriff observed defendant Alex Padilla walking down the
street and stopped to question him about an attempted break-in. Before the
deputy could fully exit his vehicle, the defendant attacked the deputy using
his fists and a knife, seized the deputy’s handgun, and fired two shots that,
thankfully, did not strike the deputy.
The defendant was found guilty of three counts of assault on a peace
officer (Pen. Code,1 § 245, subds. (c), (d)(2); counts 2–4), one count of making
a criminal threat (§ 422; count 5), one count of possession of a firearm by a
felon (§ 29800, subd. (a)(1); count 6), and one count of resisting an executive
officer (§ 69, subd. (a); count 7). The trial court found the defendant suffered
two prior convictions and sentenced him to prison for an indeterminate term
of 39 years to life consecutive to a determinate term of 30 years.
The defendant appeals the judgment and asserts his convictions for
assault on a peace officer must be reversed due to instructional errors. In
particular, he contends the trial court erred by: (1) instructing the jury with
a modified version of CALCRIM No. 2670, which allegedly misled the jury
into believing the prosecution did not need to prove the deputy was lawfully
performing his duties when the defendant assaulted him; and (2) failing to
instruct the jury on lesser included offenses. We conclude there were no
instructional errors. Therefore, we reject the defendant’s challenges to his
convictions for assault on a peace officer.
Additionally, the defendant asserts the court committed sentencing
errors. The amended information alleged the defendant suffered two prior
convictions that qualified as strikes under the Three Strikes Law, but it did
1 Further undesignated statutory references are to the Penal Code.
2
not allege the convictions triggered five-year prior serious felony conviction
enhancements under section 667, subdivision (a). Nonetheless, the court
imposed prior serious felony conviction enhancements and, furthermore,
included those enhancements when calculating the greatest minimum term
for the indeterminate life sentence on the controlling count (count 3). The
defendant argues, and the People concede, the imposition of these unpled
enhancements violates section 1170.1, subdivision (e). We agree.
Therefore, we modify the sentence for counts 2, 3, 4, 5, and 7 by
striking the five-year prior serious felony conviction enhancements attached
to those counts. Further, we modify the sentence for count 3 by reducing the
indeterminate term from 39 years to life to 29 years to life. In all other
respects, the judgment is affirmed.
II
BACKGROUND
A
Factual Background
One evening, an Imperial County deputy sheriff responded to a report
of a disturbance at a duplex. A resident of one of the duplex units reported
that someone in the next-door unit was banging on her walls and attempting
to gain entry to her unit. When the deputy arrived, an adjoining door
between the units was pushed open. The deputy conducted a safety check in
the next-door unit and nobody was inside. The deputy was aware the
defendant lived in the next-door unit.
The deputy spoke to the defendant’s brother outside the duplex and
told him to talk to the defendant. The deputy then got into his vehicle and
drove in search of the defendant. At trial, the deputy testified he intended to
3
admonish the defendant to stop causing a disturbance, but he did not intend
to arrest him.
The deputy spotted the defendant a few blocks away from the duplex.
The deputy did a U-turn and stopped his vehicle, which did not have its
emergency lights activated. He advised dispatch of his location and activated
his body-worn camera. He then opened the driver-side door of his vehicle,
called out the defendant’s name, and told the defendant to take his hands out
of his pockets.
As the deputy exited his vehicle, the defendant rushed the deputy and
struck him using his fists and a knife. The deputy fought back, drew his
firearm, and stated, “I’m going to fucking shoot you, man.” Because he didn’t
realize the defendant was armed, the deputy attempted to re-holster his gun
but accidentally dropped it instead. The defendant said, “Oh, you fucked up,”
and reached for the firearm. The deputy struck the defendant on the back of
the head with a baton. Unfazed, the defendant said, “Oh, you’re going to die,
motherfucker,” and grabbed the firearm. The deputy fled for safety and
heard two shots go off.
The deputy later returned to the scene of the attack and found that his
vehicle and the defendant were missing. Law enforcement arrested the
defendant a short time later.
The deputy suffered a broken jaw, broken bones, a neck injury, and a
stab wound from his encounter with the defendant.
B
Procedural Background
After a trial, a jury found the defendant guilty of assault on a peace
officer with a deadly weapon—namely, a knife (count 2); assault on a peace
officer with a firearm (count 3); assault on a peace officer in a manner likely
4
to produce great bodily injury (count 4); making a criminal threat (count 5);
possession of a firearm by a felon (count 6); and resisting an executive officer
(count 7). For counts 2, 4, and 7, the jury found true allegations that the
defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)), and
for count 3, it found true an allegation that he personally and intentionally
discharged a firearm (§ 12022.53, subd. (c)). The jury also found the
defendant not guilty of attempted murder (§§ 187, 664; count 1) and driving
or taking a vehicle without consent (Veh. Code, § 10851, subd. (a)(1); count 8).
The trial court found the defendant suffered two strikes within the
meaning of the Three Strikes Law. It then imposed the following prison
sentence for count 3: an indeterminate term of 39 years to life consecutive to
a determinate term of 30 years. Although the information did not allege
prior serious felony enhancements under section 667, subdivision (a), the
court—based on its strike findings—included two five-year prior serious
felony enhancements as part of the determinate term for count 3. It also
included the prior serious felony enhancements when calculating the greatest
minimum term for the indeterminate portion of the sentence.2
2 “For a third strike defendant, the minimum term of the indeterminate
life sentence is the greatest of three time periods. The first period (option
one) is ‘[t]hree times the term otherwise provided as punishment’ for the
felony offense, not including enhancements. [Citations.] The second period
(option two) is 25 years. [Citations.] The third period (option three) is ‘[t]he
term determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period prescribed
by Section 190 or 3046.’ ” (People v. Williams (2004) 34 Cal.4th 397, 403.)
For count 3, the court found “option 3” produced the greatest minimum
term and calculated the indeterminate term as follows: nine years for the
assault on a peace officer conviction, plus 20 years for the firearm finding,
plus five years for each of the two prior serious felony enhancements.
5
The trial court imposed and stayed execution of the sentence for the
remaining counts under section 654.3
III
DISCUSSION
A
Instructional Errors
The defendant challenges his assault on a peace officer convictions
based on two claims of instructional error. First, he asserts the trial court’s
instruction on the lawful performance of a peace officer (CALCRIM No. 2670)
misled the jury into believing it could find him guilty of assault on a peace
officer even if it found the deputy was not lawfully performing his duties at
the time of the assault. Second, the defendant claims the trial court erred by
not instructing the jury on lesser included offenses for the charges of assault
on a peace officer. For reasons we will discuss, we conclude there is no merit
to either of these contentions.
3 The court calculated the stayed sentences for the remaining counts as
follows: for count 2, 38 years to life consisting of 25 years to life under the
Three Strikes Law, plus five years for each of the two prior serious felony
enhancements, plus three years for the great bodily injury enhancement; for
count 4, 38 years to life consisting of 25 years to life under the Three Strikes
Law, plus five years for each of the two prior serious felony enhancements,
plus three years for the great bodily injury enhancement; for count 5, 35
years to life consisting of 25 years to life under the Three Strikes Law, plus
five years for each of the two prior serious felony enhancements; for count 6,
the upper term of three years doubled under the Three Strikes Law; and for
count 7, 38 years to life consisting of 25 years to life under the Three Strikes
Law, plus five years for each of the two prior serious felony enhancements,
plus three years for the great bodily injury enhancement.
6
1
CALCRIM No. 2670
The defendant was found guilty of assault on a peace officer and
resisting an executive officer. Both offenses require the prosecution to prove
beyond a reasonable doubt that the officer was lawfully performing his or her
duties at the time of the assault or the resistance. (§§ 69, subd. (a), 245,
subds. (c), (d)(2); see People v. Simons (1996) 42 Cal.App.4th 1100, 1109,
fn. 5.) An officer does not lawfully perform his or her duties if the officer
unlawfully detains or arrests a person or uses unreasonable or excessive
force. (See People v. Delahoussaye (1989) 213 Cal.App.3d 1, 7.)
The court instructed the jury on assault on a peace officer using
CALCRIM No. 860. That instruction states in relevant part as follows: “To
prove that the defendant is guilty of [the] crime, the People must prove that[ ]
[¶] ... [¶] [ ] When the defendant acted, the person assaulted was lawfully
performing his duties as a peace officer….” The court instructed the jury on
resisting an executive officer using CALCRIM No. 2652. That instruction
states in relevant part as follows: “To prove that the defendant is guilty of
[the] crime, the People must prove that[ ] [¶] ... [¶] [ ] When the defendant
acted, the officer was performing his lawful duty….”
The court also instructed the jury with CALCRIM No. 2670, stating in
part: “The People have the burden of proving beyond a reasonable doubt that
[the deputy] was lawfully performing his duties as a peace officer. If the
People have not met this burden, you must find the defendant not guilty of
Resisting an Executive officer as charged in Count 7. [¶] 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
7
person knows, or reasonably should know, that a peace officer is arresting or
detaining him or her, the person must not use force or any weapon to resist
an officer’s use of reasonable force.” (Italics added.)
The defendant does not dispute that CALCRIM No. 2670, as given, was
correct with regards to the charge of resisting an executive officer (count 7).
However, he asserts the instruction’s reference to the charge of resisting an
executive officer, coupled with its omission of any reference to the charges of
assault on a peace officer (counts 2–4), misled the jury into believing it could
find him guilty of assault on a peace officer even if it found the deputy was
unlawfully performing his duties at the time of the assault. Additionally, the
defendant contends a person cannot be found guilty of assault on an officer if
the person uses force during an unlawful arrest or detention, even though the
person may be found guilty of resisting an officer under the same
circumstances. He claims CALCRIM No. 2670’s prohibition against forcible
resistance—while correct for purposes of the charge of resisting an officer—
was misleading for purposes of the charge of assault on a peace officer.
We construe the defendant’s argument as a claim that CALCRIM
No. 2670 was incomplete or ambiguous due to its omission of any reference to
the assault on a peace officer charges. “ ‘[A] party may not complain on
appeal that an instruction correct in law and responsive to the evidence was
too general or incomplete unless the party has requested appropriate
clarifying or amplifying language.’ ” (People v. Covarrubias (2016) 1 Cal.5th
838, 901.) Because CALCRIM No. 2670 was legally correct as given, and the
defendant did not object to the instruction or request a clarifying instruction
in the trial court, he has forfeited his challenge to the extent it is based on
alleged omissions or ambiguities in the instruction. (Ibid.; see also, e.g.,
People v. Buenrostro (2018) 6 Cal.5th 367, 428 (Buenrostro).)
8
The defendant’s arguments fail on the merits as well. “ ‘ “It is
fundamental that jurors are presumed to be intelligent and capable of
understanding and applying the court’s instructions.” ’ ” (People v. Sandoval
(2020) 50 Cal.App.5th 357, 361.) “ ‘When we review challenges to a jury
instruction as being incorrect or incomplete, we evaluate the instructions as a
whole, not in isolation. [Citation.] “For ambiguous instructions, the test is
whether there is a reasonable likelihood that the jury misunderstood and
misapplied the instruction.” ’ ” (People v. Nelson (2016) 1 Cal.5th 513, 544.)
As noted, CALCRIM No. 860 stated the jury could not find the
defendant guilty of assault on a peace officer unless it found the deputy was
lawfully performing his duties. CALCRIM No. 2670 defined lawful
performance of duty for purpose of a different charge—the charge of resisting
an officer. But CALCRIM No. 2670 did not mention, let alone delineate the
substantive elements of, the offense of assault on a peace officer. Reading
these instructions together, we conclude it is not reasonably likely the jury
assumed, based on mere negative implication alone, and in disregard of the
express terms of CALCRIM No. 860, that the deputy’s lawful performance of
his duties was not an element of the offense of assault on a peace officer.
Because CALCRIM No. 2670 says nothing about the offense of assault on a
peace officer, we similarly conclude it is not reasonably likely the jury
misapplied the instruction’s prohibition against forcible resistance in the
manner described by the defendant.
Even if there was an instructional error, the error would be harmless
beyond a reasonable doubt. We reach this conclusion for several reasons.
First, as previously noted, CALCRIM No. 860 instructed the jury it
could find the defendant guilty of assault on a peace officer only if it found
9
the deputy was lawfully performing his duties. We presume the jury followed
the instruction. (See Buenrostro, supra, 6 Cal.5th at p. 431.)
Second, there was not any evidence, let alone substantial evidence, that
the deputy was detaining the defendant or that the purported detention was
unlawful—i.e., that the deputy was not lawfully performing his duties. “The
usual test for a detention is whether a reasonable person would have believed
he or she was free to leave.” (People v. Fisher (1995) 38 Cal.App.4th 338,
343.) Here, the deputy parked his vehicle, called out the defendant’s name,
and told him to take his hands out of his pockets. The deputy did not activate
his vehicle’s emergency lights, handcuff the defendant, question the
defendant about the disturbance at the duplex, state the defendant was
under arrest, or in any manner suggest the defendant was unable to leave.
Indeed, the defendant attacked the deputy before he could fully exit his
vehicle. On these facts, no reasonable juror could find the deputy detained
the defendant. (See People v. Parrott (2017) 10 Cal.App.5th 485, 494
[defendant was not detained when officers asked him to keep his hands out of
his pockets]; People v. King (1977) 72 Cal.App.3d 346, 349 [defendant was not
detained when officers called his name and told him to stop walking away].)
Further, substantial evidence did not support a theory that the deputy
unlawfully detained the defendant. Prior to the defendant’s attack on the
deputy, the deputy responded to a report of a disturbance. The person who
reported the incident stated someone from the adjoining unit was attempting
to gain entry to her unit and, when the deputy arrived at the scene of the
disturbance, the door between the two units was open. At trial, the deputy
testified he knew the defendant lived in the next-door unit from which the
disturbance was emanating. On these undisputed facts, the deputy surely
harbored, at minimum, a reasonable suspicion that the defendant was
10
involved in criminal activity relating to the attempted break-in. Such
reasonable suspicion would have justified the deputy’s purported detention of
the defendant, if in fact he had detained the defendant. (People v. Leath
(2013) 217 Cal.App.4th 344, 354 [“ ‘ “[I]n order to justify an investigative stop
or detention the circumstances known or apparent to the officer must include
specific and articulable facts causing him to suspect that (1) some activity
relating to crime has taken place or is occurring or about to occur, and (2) the
person he intends to stop or detain is involved in that activity.” ’ ”].)
Third, the defense’s closing arguments did not draw the jury’s attention
to the issue of whether the deputy was lawfully performing his duties. In
fact, the defense expressly conceded to the trial court that it “didn’t present
any evidence as to [the encounter] not being in the performance of [the
deputy’s] lawful duties” and, therefore, the defense was “not arguing” that
the deputy performed his duties unlawfully. Because the defense never
argued that the deputy unlawfully detained the defendant, we have every
reason to believe the jury would have reached the same verdict absent the
alleged instructional error. (See People v. Aranda (2012) 55 Cal.4th 342, 375
[trial court’s failure to provide standard reasonable doubt instruction was
harmless “because neither the prosecutor nor defense counsel referred to the
standard of proof during their closing remarks[] [and] nothing in their
arguments invited the jury to apply a standard of proof less than beyond a
reasonable doubt, or no standard at all”].)
Finally, the jury found the defendant guilty of resisting an officer after
being fully and accurately instructed on the lawful performance of duty
element for purposes of that charge. To find the defendant guilty of resisting
an officer, the jury necessarily found the deputy was lawfully performing his
duties; had the jury found that the alleged detention was unlawful, it would
11
have been obligated to acquit the defendant of the resisting an officer charge.
Because the jury resolved the lawful performance of duty issue against the
defendant, any alleged instructional error concerning lawful performance of
duty for purposes of the assault on a peace officer charges was harmless.
(See People v. Samaniego (2009) 172 Cal.App.4th 1148, 1165 [“The error here
is harmless beyond a reasonable doubt because the jury necessarily resolved
these issues against appellants under other instructions.”].)
2
Lesser Included Offenses
The defendant asserts the trial court also erred by failing to instruct
the jury on lesser included offenses for each of the charges of assault on a
peace officer. In particular, the defendant asserts the following lesser-
included-offense instructions were warranted: for count 2, assault with a
deadly weapon (§ 245, subd. (a)(1)); for count 3, assault with a semiautomatic
firearm (id., subd. (b)); and for count 4, assault by means of force likely to
cause great bodily injury (id., subd. (a)(4)). Unlike the offense of assault on a
peace officer, these offenses do not require proof that the victim was a peace
officer engaged in the performance of his or her duties. (§ 245, subds. (a)(1) &
(4), (b).) According to the defendant, the court had a sua sponte duty to
instruct on these offenses because a jury reasonably could have found that
the deputy was not lawfully performing his duties.
The People concede assault with a deadly weapon, assault with a
semiautomatic firearm, and assault by means of force likely to cause great
bodily injury are lesser included offenses of assault on a peace officer, as
charged. (See People v. McElheny (1982) 137 Cal.App.3d 396, 406 [assault
with a deadly weapon is a lesser included offense of assault with a deadly
weapon on a peace officer]; accord People v. Ryan (2006) 138 Cal.App.4th 360,
12
369, fn. 8 [“Section 245 is an example of a statute that contains greater and
lesser included offenses in different subdivisions.”].) However, they claim
instructions on the lesser included offenses were unwarranted because there
was no evidence the deputy unlawfully detained the defendant.
“ ‘ “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. ... Thus, “a
trial court errs if it fails to instruct, sua sponte, on all theories of a lesser
included offense which find substantial support in the evidence. On the other
hand, the court is not obliged to instruct on theories that have no such
evidentiary support.” ’ ” (People v. Kruse (2020) 56 Cal.App.5th 1034, 1046.)
Assuming without deciding that assault with a deadly weapon, assault
with a semiautomatic firearm, and assault by means of force likely to cause
great bodily injury are or can be lesser included offenses of assault on a peace
officer, we conclude there was no instructional error. As previously
discussed, there was no substantial evidence to support the defendant’s
appellate argument that the deputy may have detained the defendant. Nor
was there substantial evidence to support the defendant’s appellate
argument that the deputy may have lacked reasonable suspicion for the
purported detention. In the absence of such evidence, the trial court was not
required to instruct the jury on these lesser included offenses.
B
Sentencing Errors
For each count, the amended information alleged the defendant
suffered two prior convictions for serious and/or violent felonies and,
therefore, was “subject to sentencing pursuant to the provisions of Penal
13
Code section 667[, subs.] (b)–(j) and Penal Code section 1170.12.” Thus, the
information properly alleged the prior convictions were strikes for purposes of
the Three Strikes Law. However, the information did not allege the prior
convictions were prior serious felony convictions triggering five-year
sentencing enhancements under section 667, subdivision (a).
The trial court found true the prior conviction allegations. It then used
the true findings for three sentencing purposes. First, it treated the prior
convictions as strikes, thereby triggering the indeterminate sentencing
provisions of the Three Strikes Law. Second, it imposed two five-year prior
serious felony conviction enhancements under section 667 subdivision (a) for
counts 2, 3, 4, 5, and 7. Third, it included the prior serious felony conviction
enhancements when calculating the minimum indeterminate term for
count 3, effectively increasing the minimum indeterminate sentence by 10
years.
On appeal, the defendant challenges the court’s imposition of the prior
serious felony conviction enhancements under section 667, subdivision (a), as
well as its use of those enhancements to calculate the minimum
indeterminate term for count 3. He notes the amended information did not
allege that the prior convictions were serious felony convictions under
section 667, subdivision (a). He asserts the sentence therefore included
unpled enhancements in violation of section 1170.1, subdivision (e), which
states as follows: “All enhancements shall be alleged in the accusatory
pleading and either admitted by the defendant in open court or found to be
true by the trier of fact.”
The People concede the amended information did not allege that the
prior convictions were prior serious felony enhancements under section 667,
subdivision (a). They urge us to strike the unpled enhancements accordingly.
14
We agree with the parties. The amended information did not give the
defendant notice the People would seek to use his prior convictions as prior
serious felony conviction enhancements under section 667, subdivision (a).
Therefore, the trial court’s imposition of prior serious felony conviction
enhancements and its use of those enhancements to calculate the minimum
indeterminate term violated section 1170.1, subdivision (e).4 (People v.
Nguyen (2017) 18 Cal.App.5th 260, 265–271 [court erred by imposing prior
serious felony conviction enhancement where information alleged prior
conviction as a strike, but not as a prior serious felony conviction under
section 667, subdivision (a)]; accord People v. Mancebo (2002) 27 Cal.4th 735,
742–754 [error to sentence defendant to indeterminate term under One
Strike Law based on unpled multiple-victim special circumstance].) Further,
although the defendant did not object to the error in the trial court, we may
correct the sentence on appeal because the statutory violation produced an
unauthorized sentence. (Nguyen, at pp. 271–272.)
In light of the violation of section 1170.1, subdivision (e), we modify the
judgment as follows: (1) the five-year prior serious felony conviction
enhancements under section 667, subdivision (a) are stricken from the
sentences for counts 2, 3, 4, 5, and 7; and (2) the indeterminate term for count
three is reduced from 39 years to life to 29 years to life. As modified, the
4 Because we conclude the defendant’s sentence violated section 1170.1,
subdivision (e), we do not consider the defendant’s argument that the
sentence violated his constitutional right to due process.
15
prison sentence for count 3 is an indeterminate term of 29 years to life
consecutive to a determinate term of 20 years.5
IV
DISPOSITION
The judgment is modified as follows: (1) the five-year prior serious
felony conviction enhancements under section 667, subdivision (a) are
stricken from the sentences for counts 2, 3, 4, 5, and 7; and (2) the
indeterminate sentence for count 3 is modified from 39 years to life to 29
years to life. In all other respects, the judgment is affirmed. The clerk of the
superior court is directed to modify the abstract of judgment to reflect this
modification and to forward a copy of the amended abstract to the
Department of Corrections and Rehabilitation.
McCONNELL, P. J.
WE CONCUR:
IRION, J.
DATO, J.
5 As the parties agree, count 3 remains the controlling count and
“option 3” produces the greatest minimum indeterminate term for count 3,
even after the prior serious felony conviction enhancements are stricken.
16