The opinion
Filed 7/8/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE,
Plaintiff and Respondent,
A166435
v.
HENRY MORGAN, (Sonoma County
Super. Ct. No. SCR7469261)
Defendant and Appellant.
Having ignored officers’ orders to get down on the ground, defendant
reached into his car, pulled a gun from the front seat, took a “shooting
stance,” “racked” his gun, took aim directly at the head of an officer trying to
subdue him so that the officer was “staring down the barrel of the gun” and
certain he was about to die, pulled the trigger, and then fled in his car with
the officers in hot pursuit. The issue before us is whether the jury could
convict defendant of “resisting” the officers by “the use of force or violence”
(Pen. Code, § 69, subd. (a)) 1 because it turned out defendant’s gun was
unloaded.
Defendant maintains the resisting charges never should have been
submitted to the jury because precedent holds assault cannot be committed
with an unloaded firearm and assault is a necessarily included lesser offense
1 All further statutory references are to the Penal Code unless
otherwise indicated.
1
of resisting an officer under section 69, subdivision (a). Since his gun was
unloaded, defendant could not have been convicted of assaulting the officers.
Ergo, says defendant, he could not have been convicted of the greater offense
of resisting an officer by the use of force or violence.
The Attorney General does not take issue with the venerable case law
holding assault cannot be committed with an unloaded firearm. He does not
agree, however, that it was beyond the province of the jury to find that
defendant engaged in violent conduct while resisting the officers’ efforts to
subdue and arrest him.
We have no doubt that in most cases a defendant who, by use of force or
violence, resists an officer in the performance of his or her duties will also
commit assault. However, the circumstances in this case are unlike those in
any other section 69, subdivision (a) case cited by the parties or which we
have located through our own research. On due consideration, we agree with
the Attorney General that the frightening and dangerous scenario that
unfolded here—which indisputably impeded the officers as they tried to
perform their lawful duties and put not only defendant, but also bystanders,
at serious risk of injury or death from the officers’ own use of deadly force to
prevent what appeared to be their own imminent peril—comes within the
bounds of the language and purpose of section 69, subdivision (a). We
therefore affirm defendant’s conviction. We further conclude, however, the
trial court erred in sentencing defendant and remand for resentencing in
accordance with section 1170 as recently amended by Senate Bill No. 567
(2021–2022 Reg. Sess.) (Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022).
2
BACKGROUND
The Encounter Between Defendant and Officers
California Highway Patrol Officer Matthew Goulding was driving
eastbound in Sonoma County when he spotted “two men in [a] dirt field” that
was part of, or on the outskirts of, a county park. The two men were “facing
each other.” One (who was later identified as defendant) had a knife and the
other, a rock, and they “appeared to be in a stand-off, more or less a
confrontation with each other.”
Goulding pulled to a stop in the middle of the eastbound lane, at a
diagonal, to “get traffic to stop coming towards [him] because [he] didn’t want
anybody else near [him] when this dangerous encounter was going on.”
Goulding had on his “[f]ull tan uniform with [his] CHP badge and [his] name
tag and gun belt and all [his] tools,” and his patrol car was a “fully marked
black and white CHP patrol vehicle.”
Goulding could see that defendant was holding the knife “with a closed
fist . . . with the blade pointed upward.” He was in “an athletic combative
stance . . . [c]learly an aggressive stance engaging with . . . the other
individual.” Goulding, who was approximately eight to 10 feet away from the
men, got out of his vehicle, drew his side arm, and raised it “in an attempt to
de-escalate both of their actions” and “de-escalate the whole situation.”
Neither man realized Goulding was there until he “started shouting
commands.” Goulding told them to “drop their respective weapons and to get
down on the ground.” The man holding the rock immediately complied.
Defendant was “slow to react,” but did “eventually lay down,” although he
continued to hold the knife. Goulding ordered defendant to “throw the knife
away” from himself and “he did so.”
3
Goulding thereupon holstered his weapon and called for his “beat
partner,” who was working the same area, so Goulding could “secure the
scene,” detain both men, and investigate what had happened.
Defendant, who was still on the ground, “started screaming,” “ ‘I just
want to leave, I just want to leave, I just want to leave.’ ” He then suddenly
“stood up, raised his hands above his head and started walking towards”
Goulding. Fearing defendant might attack him, Goulding drew his taser.
Undeterred, defendant kept advancing toward Goulding, repeating that
“he wanted to leave.” At that point, Goulding decided not to “taze” defendant
because he “believed . . . all [defendant] wanted to do was to leave.” Goulding
repeatedly told defendant “to get down on the ground.” Defendant continued
to ignore the officer and continued walking, and Goulding eventually realized
he was walking toward a red Subaru parked on the shoulder of the road.
Goulding noted the Subaru’s license plate as defendant got into the car and
drove off, heading eastbound. Goulding asked dispatch to run the plate
number and requested responding units to try to locate and stop the car.
As Goulding turned his attention to the other individual, Sonoma
County Park Ranger Stephen Peake arrived on the scene offering his
assistance. Seeing Peake was unarmed, Goulding decided not to “directly
involve him” but asked him to run a vehicle search on a recreational vehicle
that was also parked at the scene.
Shortly after defendant drove away, Goulding saw him return to the
scene. Fearing for his safety, Goulding moved toward his patrol vehicle and
opened the driver’s side door as a shield. He drew his “side arm and
prepare[d] to engage in possibly a gun battle with [defendant] based off
everything [he was] seeing at [that] point.”
4
Defendant appeared to be “[h]ysterical” and was yelling, but Goulding
could not make out what he was saying. As defendant stood “in the V of [the
Subaru’s] door” (the “area when you open your driver door and you step out”),
he “leaned over inside the vehicle and started rummaging around like he was
looking for something.” When he reemerged, defendant was holding a “black
pistol in his right hand.”
Around this time, Sonoma County Deputy Sheriff Micah Hope arrived
and saw Goulding in a “high-risk stop with his gun pointed” at defendant.
Goulding warned Hope that defendant had a gun.
As defendant moved toward the rear of the Subaru, both Goulding and
Hope began “screaming ‘drop the gun, drop the gun.’ ” Instead of doing so,
defendant “raise[d] the gun and point[ed] it” at Goulding. Defendant was in a
“shooting stance” and had the gun aimed squarely at Goulding’s head.
Goulding was looking “down the barrel of [defendant’s] gun” and was “most
definitely in fear for [his] life.” Although Goulding could not tell whether
defendant was trying to pull the trigger, Hope heard a “click” which he
believed emanated from defendant’s pulling the trigger. Goulding continued
to “yell at [defendant] ‘drop the gun, drop the gun.’ ” Defendant continued to
ignore him and began making “erratic movements like he was distraught”
and “just extremely upset.”
Both Goulding and Hope saw defendant “rack” the gun. It appeared to
Goulding that defendant was trying to “load[] a bullet into the chamber.”
According to Hope, “you would do that . . . if the gun was jammed and not
functioning correctly[,] you would rack the slide to get it back to working
order.” After defendant racked “the slide probably three times,” Hope “saw
him pull the trigger of the firearm while it was pointed at the ground. Since
nothing happened and [Hope] could kind of hear a metallic click [i]t indicated
5
to [him] that the gun was either out [of ammunition] or it was perhaps a very
realistic fake, like an airsoft gun.”
Hope nevertheless was in “fear[] for [his] life and [he] could have
absolutely articulated [sic] shooting [defendant].” He testified, “[I]t is
certainly the closest I’ve ever come in my 14-year career to shooting
somebody.” But he had “just a little sliver of doubt” that defendant was going
to fire a fatal shot given “the lack of [defendant’s] gun directly pointing at
[him] or another officer.”
Similarly, from the “moment [defendant] drew his weapon and pointed
it directly at” him, Goulding “believed that all [defendant] had to do was pull
a trigger and it would be operable.” But as minutes passed and defendant
“continued to try and manipulate the weapon, racking the slide, trying to
load a round from the magazine into the chamber,” Goulding began to
“question[] the gun’s operability.” Regardless, Goulding “knew it wasn’t safe”
and “perceived [defendant] was a threat the entire time.” He thought
defendant “was trying to get the gun to function properly, that he was trying
to fire on us.”
Defendant continued to move, this time toward the back of Peake’s
pickup truck. He was “walking quickly still with the gun, still kind of waving
it around, cursing, clearly very angry.” Both Goulding and Hope continued to
order him to “drop the gun.”
Peake, who had taken cover behind the engine compartment of his
truck, had watched events unfold and saw Goulding draw his weapon and
order defendant to drop his. Defendant ignored the commands. Peake stayed
down “expecting gunshots,” and then heard footsteps behind him. As he
turned, still crouched behind his truck, Peake saw defendant round the truck
with his gun in hand. Peake ran, and as he did so, “heard a click, which [he]
6
interpreted to be a trigger pull.” Peake “thought [he] was dead or that [he]
was going to die” and was “hoping maybe [his] vest would take the bullet.”
He stayed crouched as he ran, keeping his head low, toward Goulding and
took cover behind Goulding’s vehicle.
As defendant started to move toward a bus stop, another deputy
arrived. With three officers ordering him to drop his gun, defendant moved
back toward the Subaru, still holding the gun. Defendant got in his car,
drove around Goulding’s patrol car, and headed westbound. Within
moments, defendant stopped and got out “with the pistol in his hand kind of
waving it down next to the ground or next to his waist,” “screaming and
yelling.” Defendant then got back into his car and continued driving
westbound.
Several officers, including Goulding and Hope, gave chase. Goulding
activated the lights and sirens of his patrol car.
Defendant soon turned into a dead-end street, parked at the end, got
out, and ran in a northerly direction. The officers pulled in behind his car
and chased him across a field to a house, which defendant ran behind.
Unsure if defendant still had his gun, the officers split into two groups in
hopes of coming at defendant from two directions. With weapons drawn, the
officers found defendant “kind of hiding” and ordered him to get down on the
ground. Goulding did not see a gun on defendant’s person, and after
defendant briefly “physically resist[ed],” Goulding was able to gain control
and place him under arrest.
Deputy Sheriff Aaron Hunt reported to the scene of the arrest and
asked defendant where the gun was. Defendant told him it was in his car.
He also asked Hunt “several times why didn’t they shoot [him].” Deputy
Sheriff David Higgenbottom then searched the Subaru and found a “gray and
7
black handgun sitting on top of some clothes covered by other clothes” on the
front passenger seat of the car. He did not test the usability or functionality
of the gun.
According to defendant, on the day of the incident he “was just, like,
smoked out of [his] mind.” He said, “[I] was just really mad. I really thought
that people were chasing me, following me, and I believed that, like, I was
talking to people through telepathy, even though I wasn’t, you know? But I
believed that people were talking to me in my head and I was talking to
people in their head.” He admitted he had earlier driven to a compost
company where he had worked, driven in circles around the parking lot, and
gotten out of his car and stabbed, and ruined, the tires of one of the company
tractors. He then drove to the park, where he parked near a recreational
vehicle and began throwing pennies at the vehicle. The individual inside got
out, ran over to where defendant was sitting in his car, and sprayed him with
pepper spray. Defendant, armed with a knife, got out of his car to confront
him. At this point, Officer Goulding happened upon them.
Goulding told the two to “get down on the ground.” Defendant did so,
but then got up to go to his car to “avoid” any “type of cop interaction” since
officers “always seem to just harass [him], search [him].” Defendant
retrieved his gun because he “got tired of being chased, harassed, bothered,”
and so he “could get suicide by cop.” When he returned to the scene, he “was
really scared, but [he] just knew that [he] had to hurry up and point the gun
at them so [he] could just get killed really fast, you know, with as little as—
pain as possible.” So he grabbed the gun out of his car, pointed it at them in
a way he “knew that [he] could get assassinated,” “cocked it back,” and pulled
the trigger so that Officer Goulding would shoot him. He “only remember[s]
8
pointing it at Goulding.” He admittedly “cocked [the gun] back twice” and
pulled the trigger an equal amount of times.
When it appeared the officers were not going to kill him, he “put the
gun inside [his] vehicle.” At that point, he “believed that they were civilians
impersonating officers.” He heard people yelling but did not understand
what they were saying, nor did he recognize them as police officers. After
looking for his keys, he “proceeded to get inside [his] vehicle again, and [he]
just—[he] thought [he] was scot-free.” When he got to the dead-end street—
where officers surrounded him—he “was having second thoughts. [He] was
thinking that perhaps [he] did really just mess up and [he] just did something
that’s going to probably bring repercussions,” so he “just took off.” When
officers eventually handcuffed him, he asked, “why didn’t they shoot me. You
know, because I feel, like any other cop, they would have shot and killed me.
One hundred percent sure. And I felt the lack of them not doing that gave me
the impression that they weren’t cops to begin with.”
Defendant was never asked by the prosecution or the defense, nor did
he ever voluntarily testify, whether his gun was loaded or unloaded or
whether he thought it was loaded or unloaded.
The Charges and Convictions
The operative third amended information charged defendant with three
counts of felony resisting an officer (§ 69, subd. (a)—counts 1, 3 & 4),
misdemeanor exhibiting a concealable firearm in the presence of a peace
officer (§ 417, subd. (a)(2)(A)—count 2), possession of a firearm by a felon, a
felony (§ 29800, subd. (a)(1)—count 5), felony exhibiting a firearm in the
presence of a peace officer (§ 417, subd. (c)—count 6), misdemeanor resisting
a peace officer (§ 148, subd. (a)(1)—count 7), felony vandalism (§ 594,
subd. (a)—count 8), felony making criminal threats (§ 422, subd. (a)—
9
count 9), and misdemeanor fleeing a peace officer (Veh. Code, § 2800.1,
subd. (a)—count 10). As to counts 1, 3 and 4, it was further alleged defendant
personally used a firearm (§ 12022.5).
The jury found defendant guilty of count 1 (resisting by force or
violence Officer Goulding—§ 69) and found true the related firearm
enhancement (§ 12022.5, subd. (a)); count 5 (possessing a firearm by a felon—
§ 29800, subd. (a)(1)); count 6 (exhibiting a firearm, whether loaded or
unloaded, in a rude angry, or threatening manner—§ 417, subd. (c)); count 7
(willfully and unlawfully resisting Deputies Andrews and Hope,
Officer Goulding, and Ranger Peake—§ 148, subd. (a)(1)), 2 and count 8
(vandalism—§ 594, subd. (a)).
The jury deadlocked on counts 3 and 4 (resisting by use of force or
violence Officers Andrews and Hope—§ 69) and count 10 (evading a peace
officer—Veh. Code, § 2800.1, subd. (a)). The jury found defendant not guilty
of count 2 (exhibiting a firearm in a threatening manner by pointing an
unloaded firearm at Park Ranger Peake—§ 417, subd. (a)(2)(A)) and count 9
(making a criminal threat against Officer Higgenbottom—§ 422). 3
Defendant additionally admitted to a 2012 conviction “of battery on a
peace officer who was engaged in the performance of their duties,” a 2013
2 As we shall discuss, section 148, subdivision (a)(1) is a necessarily
included lesser offense of resisting an officer by “the use of force or violence”
under section 69, subdivision (a). (People v. Smith (2013) 57 Cal.4th 232,
242–243 (Smith).)
3 The May 25, 2022, court minute order indicates the jury was
deadlocked on counts 3, 4, 6, and 10. However, the jury verdict form, the
reporter’s transcript, and the abstract of judgment all indicate the jury
reached a guilty verdict on count 6 (exhibiting a firearm in the presence of a
peace officer). The minute order, thus, appears to be inaccurate, and we will
order the matter remanded to allow for correction of the order.
10
conviction for petty theft, two 2015 convictions for felony domestic violence,
and a 2020 conviction for misdemeanor resisting arrest. He also admitted a
pending battery charge.
The trial court sentenced defendant to seven years and four months.
DISCUSSION
Motion for Acquittal of Section 69 Counts 4
Section 69 states: “Every person who attempts, by means of any threat
or violence, to deter or prevent an executive officer from performing any duty
imposed upon 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 by
a fine not exceeding ten thousand ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170, or in a county jail not exceeding one year, or
by both such fine and imprisonment.” (§ 69, subd. (a), italics added.)
As the italicized wording indicates, “[t]he statute sets forth two
separate ways in which an offense can be committed. The first is attempting
by threats or violence to deter or prevent an officer from performing a duty
imposed by law; the second is resisting by force or violence an officer in the
performance of his or her duty.” (In re Manuel G. (1997) 16 Cal.4th 805, 814
4 “When reviewing a trial court’s denial of a section 1118.1 motion for
acquittal, we apply the substantial evidence standard of review. [Citation.]
Likewise, when a conviction is challenged on appeal for insufficient evidence
to support it, we apply the substantial evidence standard of review.
[Citations.] In applying that substantial evidence standard, we review the
whole record in the light most favorable to the judgment to determine
whether there is substantial evidence to support the conviction. [Citations.]
Substantial evidence is evidence that is reasonable, credible, and of solid
value such that a rational trier of fact could find the defendant guilty beyond
a reasonable doubt. [Citation.] We do not reweigh the evidence, resolve
conflicts in the evidence or reevaluate the credibility of witnesses.” (People v.
Jacobo (2019) 37 Cal.App.5th 32, 41–42.)
11
(Manuel G.); accord, Smith, supra, 57 Cal.4th at pp. 240–241; People v. Kruse
(2020) 56 Cal.App.5th 1034, 1046–1047.) Thus, the distinction between the
two ways in which the offense can be committed is whether the defendant is
“ ‘ “attempting to deter” ’ ” an officer or is “ ‘ “actually resisting” ’ ” an officer
engaged in performing his or her duties. (People v. Carrasco (2008)
163 Cal.App.4th 978, 984–985 (Carrasco).)
Attempting to deter an officer can be established by “ ‘ “[a] threat,
unaccompanied by any physical force” ’ and may involve either an officer’s
immediate or future performance of his [or her] duty.” (Carrasco, supra,
163 Cal.App.4th at p. 985, quoting People v. Lacefield (2007) 157 Cal.App.4th
249, 255, disapproved on another ground as stated in Smith, supra,
57 Cal.4th at p. 242.) “The actual use of force or violence is not required.
(See [Manuel G., supra, 16 Cal.4th] . . . at p. 814 [“A threat, unaccompanied
by any physical force, may support a conviction for the first type of offense
under section 69.”].) (Smith, supra, 57 Cal.4th at p. 240; Carrasco, supra,
163 Cal.App.4th at p. 985.) Further, “the statutory language [of the first
clause of section 69, subdivision (a)] does not require that the officer be
engaged in the performance of his or her duties at the time the threat is
made.’ ” (Smith, supra, at p. 240.)
Actually resisting requires that the defendant “resist” the officer “ ‘by
the use of force or violence’ ” and further requires that the officer be acting
lawfully at the time the defendant uses force or violence. (Smith, supra,
57 Cal.4th at p. 241.)
Defendant was charged with, and tried on, the second theory—that he
actually resisted the officers by use of force or violence. There is no dispute
that, at the time, the officers were engaged in performing their lawful duties.
12
The Trial Court Arguments
After the prosecution rested, defendant moved for acquittal on the
three section 69, subdivision (a) counts. Defense counsel argued that as
charged—resisting the officers by use of force or violence—defendant could
not commit the crimes without also committing assault, citing People v.
Brown. 5 Given that one “cannot commit an assault with an unloaded
firearm” and there was “no evidence” his gun was loaded, defendant “could
not have committed an assault” and therefore could not have committed the
greater offense of actually resisting an officer by use of force or violence.
The trial court observed, “Force and violence have, under California
law, been stretched to a lot of different acts. Here, a gun was pointed.
Even—not addressing assault but addressing [section] 69(a). I don’t think
you have to have an assault to have a [section] 69(a), even in the second way,
the second type. [¶] I think force can be applied without an assault. There
are instances of violence that are not an assault.”
Defense counsel disagreed, arguing resisting an officer, rather than
threatening to interfere with an officer, “requires force and violence, and
there [was] no application of force, which is synonymous with violence.
They’re the same things. And there’s case law which supports that as well.”
The court saw it differently—that “force and violence” are not the same
thing. “They are different, by definition, under law. [¶] I think, in the
totality of the circumstances, there were violent acts that have been testified
to in the context of what was happening, with the appearance of force, which
I don’t think is determinative. [¶] . . . I disagree that in all circumstances an
assault is required for the second type of resisting an executive officer. I
5 People v. Brown (2016) 245 Cal.App.4th 140 (Brown).
13
don’t agree with that theory.” The trial court then indicated it would deny
the motion.
Defense counsel persisted, asserting “[t]here would be no reason to
have two separate ways of violating section 69 if the first one was
synonymous with the second one. But there’s two different ways, and there
was an election to choose the second one, which required force and violence.
If there was an election to choose threats, I would have no argument that this
was a threatening act.”
The trial court remained of the view that an assault was not required
to find force or violence, and “[i]t can happen without an assault.”
Analysis
Defendant renews his tri-partite argument on appeal—that assault is a
necessarily included lesser offense of resisting an officer under section 69,
subdivision (a), assault cannot be committed with an unloaded firearm, and
since there was no evidence defendant’s gun was loaded, he did not assault
the officers and therefore could not commit the greater offense of resisting the
officers under section 69, subdivision (a). Defendant relies solely on Brown to
establish the threshold predicate of his argument—that an assault under
section 240 is a necessarily included lesser offense of resisting an officer
under section 69, subdivision (a).
The Attorney General concedes “for [the] purposes of this case that the
weight of precedent rules that an assault may not be committed with an
unloaded weapon.” He disagrees, however, that assault is a necessarily
included lesser offense of resisting an officer under section 69, subdivision (a).
We first consider Brown. In that case, the prosecution and defense
presented “two starkly different” scenarios as to what happened at the scene
of the alleged offense. The officers testified they observed 67-year-old Brown
14
riding his bicycle on the sidewalk, while wearing headphones and without a
light, violations of the municipal code and Vehicle Code. Despite orders to do
so, Brown refused to stop or get off of his bicycle, and two officers, who were
“decades younger than Brown . . . and in excellent physical condition,”
eventually cornered Brown and arrested him after a brief altercation in
which Brown suffered a fractured rib and knots on his head and one officer
suffered “a ‘boxer’s fracture’ to the knuckle of his right hand.” (Brown, supra,
245 Cal.App.4th at p. 145.) The officers admitted they struck the defendant,
but only after he swung his fists at them. (Id. at pp. 146–147.) Brown, in
contrast, testified he fell off his bicycle and while facedown and not resisting,
one of the officers pinned him to the ground and struck him in the head
without provocation. (Id. at p. 147.)
Consistent with our Supreme Court’s holding in Smith, supra,
57 Cal.4th at pages 242 to 243—that simple resisting an officer under
section 148, subdivision (a), is a necessarily included lesser offense of
resisting an officer under section 69, subdivision (a)—the trial court duly
instructed the jury on simple resisting. (Brown, supra, 245 Cal.App.4th at
p. 151.)
On appeal, Brown asserted for the first time that the jury “should have
been given an additional option—convicting him of misdemeanor simple
assault as [an additional] lesser included offense to a section 69 violation.”
(Brown, supra, 245 Cal.App.4th at p. 151.) He maintained the jury was
denied the option of finding both the prosecution and defense versions of the
facts “partly true.” Specifically, “even if the jury believed he swung at the
officers, the jury could have found the officers initiated the violence by
jumping on him and beating him as he lay prone on the ground, prepared to
surrender.” (Ibid.)
15
The appellate court agreed, stating “[b]ecause the accusatory pleading
used the conjunctive to charge Brown with both ways of violating section 69,
and it is not possible to violate the statute in the second way without
committing an assault, we conclude that assault was necessarily a lesser
included offense of section 69 under the accusatory pleading test. (See Smith,
supra, 57 Cal.4th at pp. 242–243 [§ 148(a) was necessarily a lesser offense of
§ 69 when accusatory pleading charged the defendant with both ways of
violating § 69].)” (Brown, supra, 245 Cal.App.4th at p. 153, italics added.)
This single sentence, supported by the “see” citation to Smith, is the
entirety of the court’s analysis. (Brown, supra, 245 Cal.App.4th at p. 153.)
We also note that in Brown the Attorney General conceded section 240 was a
necessarily included lesser offense of the section 69 charge. (Brown, at
p. 153.)
The Attorney General makes no such concession in this case and points
to the paucity of Brown’s legal analysis. He also points out the instant case
involves significantly different facts Brown had no occasion to consider. We
conclude the Attorney General’s declination to concede the threshold
predicate of defendant’s argument and his view that, here, the section 69,
subdivision (a) resisting charges were properly submitted to the jury rests on
solid legal footing.
We begin by examining Smith, supra, 57 Cal.4th 232, which Brown
cited as the sole support for its pronouncement that “it is not possible to
violate the statute in the second way without committing an assault.”
(Brown, supra, 245 Cal.App.4th at p. 153.) In Smith, the defendant was
convicted under section 69, subdivision (a) and on appeal asserted the trial
court erred in failing to instruct the jury on section 148, subdivision (a)(1) as
a lesser included offense. (Smith, supra, 57 Cal.4th at p. 236.) Section 148,
16
subdivision (a)(1) provides in pertinent part, “Every person who willfully
resists, delays, or obstructs any . . . peace officer . . . in the discharge or
attempt to discharge any duty of his or her office or employment, when no
other punishment is prescribed, shall be punished by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in a county jail not to exceed
one year, or by both that fine and imprisonment.” (§ 148, subd. (a)(1).)
The courts of appeal had reached different conclusions as to whether
simple resisting under section 148, subdivision (a)(1) is a necessarily lesser
included offense of section 69, subdivision (a), given that section 69,
subdivision (a) embraces two theories, only one of which, namely the second
theory, could be said to be an aggravated form of resisting under section 148,
subdivision (a)(1). (Smith, supra, 57 Cal.4th at pp. 239, 241–242.) After
discussing both theories—attempting, by means of threat or violence, to deter
an officer from performing his or her duty, and resisting, by use of force or
violence, an officer in the performance of his or her duties—the high court
ruled simple resisting under section 148, subdivision (a)(1) is a necessarily
included lesser offense of section 69, subdivision (a) when the accusatory
pleading invokes the second theory and alleges the defendant resisted, by use
of force or violence, an officer in the performance of his or her duties. (Smith,
at pp. 241–242.) This holding—that section 148, subdivision (a)(1) is a
necessarily included lesser offense of section 69, subdivision (a)—also
necessarily means that “willfully resist[ing], delay[ing], or obstruct[ing]”
under section 148, subdivision (a)(1) collectively comes within “knowingly
resist[ing]” under section 69, subdivision (a). The high court went on to
reaffirm that trial courts have a sua sponte obligation to instruct on
17
necessarily included lesser offenses, regardless of whether the defendant
requests such instructions at trial. (Smith, at p. 244.) 6
Smith made no mention of assault, and we fail to discern how the high
court’s analysis of simple resisting under section 148, subdivision (a)(1), even
inferentially supports the conclusion assault is also a necessarily lesser
included offense of section 69, subdivision (a) when the accusatory pleading
charges the defendant with resisting an officer in the performance of his or
her duties.
We therefore turn to the language of section 69, subdivision (a), which
states, “Every person who attempts, by means of any threat or violence, to
deter or prevent an executive officer from performing any duty imposed upon
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 by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to
subdivision (h) of Section 1170, or in a county jail not exceeding one year, or
by both.” (§ 69, subd. (a).)
As the Attorney General points out, neither “force” nor “violence” is
defined in section 69. (§ 69.) Nor are they defined in the general definitional
provisions of the Penal Code. (§ 7.) These words must therefore “be
construed according to the context and the approved usage of the language”
unless they have “acquired a peculiar and appropriate meaning in law.” (§ 7,
subd. (16); see People v. Jones (1971) 19 Cal.App.3d 437, 447 [“As a general
rule, ordinary words do not require definition; they are presumed to be
understood by the jurors.”].)
6 It also concluded the trial court did not err in failing to give a
section 148, subdivision (a)(1) instruction because no evidence was presented
that “the offense was less than that charged.” (Smith, supra, 57 Cal.4th at
p. 245.)
18
Our Supreme Court has concluded several times that “force,” when not
circumscribed by other language, is to be understood as having “a common
usage meaning, rather than a specialized legal definition.” (E.g., People v.
Griffin (2004) 33 Cal.4th 1015, 1024–1026 (Griffin).) In Griffin, the court
considered the term as used in the forcible rape statute (§ 261, subd. (a)(2)).
In concluding “force” is to be understood according to common usage and not
in a specialized manner, the court observed that prior to amendment, the
statutory language qualified “force” as that “necessary under the
circumstances to overcome the victim’s resistance.” (Griffin, supra, at
p. 1025.) Given that the Legislature had removed this qualification, the high
court concluded “force” carries its common usage meaning. (Ibid.) In People
v. Anderson (1966) 64 Cal.2d 633, 640, the high court ruled the “terms ‘force’
and ‘fear’ ” as used in the robbery statute “have no technical meaning
peculiar to the law and must be presumed to be within the understanding of
jurors.” (Ibid.) It therefore rejected the defendant’s argument that the trial
court was required to give pinpoint instructions defining the terms. (Ibid.;
see also People v. Sullivan (2007) 151 Cal.App.4th 524, 544 [“[t]he
requirement of use of force or fear” in the robbery statute “has no technical
meaning which must be explained to jurors, but rather the terms articulated
in the statute have established common meaning”].)
The unqualified term “violence” likewise has no technical meaning in
our criminal law. (See, e.g., People v. Collins (1992) 10 Cal.App.4th 690, 698
(Collins) [“The words, ‘force’ and ‘violence’ are words of ordinary meaning and
require no further definition.”].) “Violence” also has a variety of dictionary
definitions. It has been defined as the “exercise of physical force against a
person, property, etc.; physically violent behavior or treatment.” (Oxford
English Dict. Online (3d ed. 2015).)
19
<http://dictionary.oed.com/cgi/entry/00277885> [as of July 8, 2024].) It has
also been defined as “intense, turbulent, or furious and often destructive
action or force” or “vehement feeling or expression.” (Merriam-Webster Dict.
Online (2020) <https://www.merriam-webster.com/dictionary/violence> [as of
July 8, 2024]; see People v. Sorden (2021) 65 Cal.App.5th 582, 600 [“ ‘When
attempting to ascertain the ordinary, usual meaning of a word [in a statute],
courts appropriately refer to the dictionary definition of that word.’ ”].)
In contrast to the absence of language in section 69 constraining the
meaning of “force” and “violence,” other criminal statutes include such
language, narrowing the meaning of those terms in those statutory contexts.
For example, the Legislature has utilized the phrase “force that to a
reasonable person would be likely to produce great bodily injury, resulting in
the child’s death” or comatose or paralytic state, where it wants to set a
benchmark for the meaning of the term. (§ 273ab, subds. (a), (b) [defining
assault resulting in death, comatose state, or paralysis of child under the age
of eight].) And it has used the phrase “force or violence upon the person of
another” to describe conduct requiring physical contact. (§§ 242 [defining
battery as “any willful and unlawful use of force or violence upon the person
of another”], italics added; 136.1 [defining witness tampering as including an
“express or implied threat of force or violence, upon a witness or victim or any
third person or the property of any victim, witness, or any third person”],
italics added.)
The Legislature could have included such language in section 69,
subdivision (a). But it did not. This, in and of itself, is significant; it is more
so because section 242 and section 69 were enacted at the same time as part
of our state’s original 1872 Penal Code. (§§ 69, 242, as enacted by Pen. Code
of 1872; see In re C.H. (2011) 53 Cal.4th 94, 107 [“When the Legislature uses
20
different words or phrasing in contemporaneously enacted statutory
provisions, a strong inference arises that a different meaning was intended.”],
superseded by statute on another ground as stated in In re Edward C. (2014)
223 Cal.App.4th 813, 824.)
We therefore conclude resisting an officer by “force or violence” under
section 69, subdivision (a) does not require either a threshold quantum of
force or violence, or the use of force or violence “upon the person of” the
officer. The statutory language does not, in other words, require the
defendant to have actual physical contact with the officer. The court in
People v. Bernal (2013) 222 Cal.App.4th 512 (Bernal), made a similar
observation, stating “[b]y interpreting section 69 in terms of the risk of
violence created by any forceful resistance to arrest, rather than in terms of
any intent to commit harm, the court in [People v.] Martin [(2005)
133 Cal.App.4th 776, 782–783] implicitly eliminated any requirement that a
defendant intend to harm a police officer or direct force or violence toward an
officer. [¶] In sum, given the express terms of the statute and the holdings in
[prior cases] we conclude that forceful resistance of an officer by itself gives
rise to a violation of section 69, without proof force was directed toward or
used on any officer.” 7 (Bernal, supra, 222 Cal.App.4th at p. 520, italics
added.)
7 The defendant in Bernal did have physical contact with the officer
from whom he tried to escape. While the officer was holding his hand, the
defendant pushed against the officer and tried to begin running, dragging the
officer about 10 yards down a bike trail until they both fell to the ground.
(Bernal, supra, 222 Cal.App.4th at p. 520.) The record also “show[ed] that, by
swinging his hips first to one side and then to the other,” the defendant
“attempted to free himself from [the officer’s] grasp.” (Ibid.) “[T]his forceful
and violent conduct amply supported his conviction of violating section 69.”
(Ibid.)
21
We thus come to whether a person must necessarily commit assault
under section 240 in resisting an officer by “the use of force or violence” under
section 69, subdivision (a). And in answering this question we take into
account that resisting under section 69, subdivision (a) includes delaying or
obstructing an officer, the terminology used in section 148, subdivision (a)(1),
which our Supreme Court has held is a necessarily included offense of a
resisting charge under section 69, subdivision (a). (See Smith, supra,
57 Cal.4th at pp. 241–242.)
An assault is “an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.” (§ 240.) The offense has
been described as “ ‘unlawful conduct immediately antecedent to battery.’ ”
(People v. Williams (2001) 26 Cal.4th 779, 786 (Williams).) It is “an incipient
or inchoate battery; a battery is a consummated assault.” (People v.
Colantuono (1994) 7 Cal.4th 206, 216, superseded by statute on other
grounds as stated in People v. Conely (2016) 63 Cal.4th 646, 660, fn. 4.) In an
assault the “underlying conduct must immediately precede the commission of
the violent injury; that is, “ ‘ “ ‘[t]he next movement would, at least to all
appearance, complete the battery.’ ” ’ ” (People v. Rundle (2008) 43 Cal.4th
76, 144, disapproved on another ground as stated in People v. Doolin (2009)
45 Cal.4th 390, 421, fn. 22; see Williams, supra, 26 Cal.4th at p. 788 [an
assault is conduct a reasonable person would realize “would directly,
naturally and probably” result in a battery].)
It is immediately apparent that the language of section 240 differs
markedly from that of section 69, subdivision (a). Section 240 requires “an
attempt” and “present ability” to “commit a violent injury” “on the person of
another.” Section 69 contains none of this language but speaks only in terms
22
of “knowingly resist[ing]” an officer by “use” of “force or violence.” (§ 69,
subd. (a).)
Just as the Legislature could have parroted the language of the battery
statute in drafting section 69, subdivision (a), it could have employed the
language of section 240. The Legislature could have, for example, drafted the
second phrase of section 69, subdivision (a) to say any person “who knowingly
resists, by assaulting,” or “by assaulting or battering,” an officer in the
performance of his or her duty, commits the offense. But it did not. Again,
this, in and of itself, is significant; moreover, section 240, like section 242,
was enacted at the same time as section 69, as part of our state’s original
1872 Penal Code (§§ 69, 242, as enacted by Pen. Code of 1872), bolstering the
presumption that the materially different language of these statutes is of
consequence.
Indeed, the Legislature has expressly used the term “assault” in other
statutes pertaining to the use of force against an officer. (E.g., § 245,
subd. (c) [“Any person who commits an assault with a deadly weapon or
instrument, other than a firearm, or by any means likely to produce great
bodily injury upon the person of a peace officer or firefighter, and who knows
or reasonably should know that the victim is a peace officer or firefighter
engaged in the performance of his or her duties,” commits the offense.].) This
reinforces that the Legislature knows how to refer to “assault,” or to use the
terminology employed in section 240, when it chooses to do so. It did not
choose to do so in section 69. (See People v. Johnson (2020) 50 Cal.App.5th
620, 633–634 [“ ‘ “[W]here the Legislature makes express statutory
distinctions, we must presume it did so deliberately, giving effect to the
distinctions, unless the whole scheme reveals the distinction is
23
unintended.” ’ ” (Quoting Metropolitan Water Dist. v. Superior Court (2004)
32 Cal.4th 491, 502.)].)
Our Supreme Court has also focused on the absence of the unique
language of section 240 in holding assault is not a necessarily included lesser
offense of several other crimes. (See People v. Licas (2007) 41 Cal.4th 362,
367 [“assault with a firearm not a lesser included offense of shooting at
another person from a vehicle because the latter offense (unlike assault) does
not require that the perpetrator have a present ability to commit a violent
injury on another person”]; People v. Wolcott (1983) 34 Cal.3d 92, 99 [assault
not a lesser included offense of robbery by threat; robbery statute requires
“[n]either an attempt to inflict violent injury, nor the present ability to do
so”].)
As we have recited, defense counsel took issue with the trial court’s
view that section 69, subdivision (a)’s use of the disjunctive “force” or
“violence” indicates the terms encompass different kinds of conduct.
However, the court was correct in recognizing the significance of the
Legislature’s use of the disjunctive. (See Rubio v. Superior Court (2016)
244 Cal.App.4th 459, 473 [“The Legislature’s use of the disjunctive ‘or’ is
telling. ‘ “The plain and ordinary meaning of the word ‘or’ is well established.
When used in a statute, the word ‘or’ indicates an intention to designate
separate, disjunctive categories.” ’ ” (Quoting Eddie E. v. Superior Court
(2015) 234 Cal.App.4th 319, 327.)]; California Correctional Peace Officers
Assn. v. Tilton (2011) 196 Cal.App.4th 91, 96 [in its ordinary sense in a
statute, “ ‘ “ ‘the function of the word ‘or’ is to mark an alternative such as
‘either this or that’ ” ’ ”].)
Counsel maintained, however, that case authority holds “force” and
“violence” have the “same” meaning. This authority consisted of assault and
24
battery cases. Indeed, in that context “ ‘[i]t has long been established . . . that
“the least touching” may constitute battery’ ” (People v. Rocha (1971) 3 Cal.3d
893, 899, fn. 12), and therefore “ ‘[t]he terms “violence” and “force” are
synonymous when used in relation to assault [and battery], and include any
application of force even though it entails no pain or bodily harm and leaves
no mark.’ ” (People v. Cruz-Partida (2022) 79 Cal.App.5th 197, 207, quoting
People v. Flummerfelt (1957) 153 Cal.App.2d 104, 106.)
But as we have discussed, although the Legislature enacted the
assault, battery, and aggravated resisting statutes at the same time, it
employed different terminology in each, and the language of section 69,
subdivision (a), differs significantly from the language of sections 240 and
242. Accordingly, case law interpreting the language of the latter two
statutes is not controlling as to the quite different language of section 69,
subdivision (a). (See Collins, supra, 10 Cal.App.4th at p. 696 [“force or
violence” as used in mentally disordered statute (§ 2962, subds. (d)(1) & (e)
[MDO]) are not synonymous, they are words of ordinary meaning requiring
no further definition, and it is error to instruct MDO jury with battery
instruction defining “force or violence”].)
Furthermore, the grammatical structure of section 69, subdivision (a),
itself, makes clear that “force” and “violence,” as used in this statute, are not
synonymous. In addition to the fact these two terms are separated by the
disjunctive “or,” the first clause of section 69, subdivision (a) states anyone
who “attempts, by means of any threat or violence” to deter an officer in the
performance of his or her duties commits the offense. (§ 69, subd. (a).) Thus,
the first clause uses only the terms “threat” and “violence,” and does not also
include the term “force.” Rather, the term “force” is used only in the second
clause. (§ 69, subd. (a).) The inescapable conclusion is that the Legislature
25
understood “violence” and “force” to have different meanings and to refer to
different kinds of conduct.
Defendant maintains otherwise, arguing that “force” does not appear in
the initial clause because that clause pertains only to an “attempt” by means
of a “threat or violence” to deter an officer. (§ 69, subd. (a).) He asserts that
“force” appears in the second clause because it applies when a person is
actually resisting, and the term spells out the measure of “violence” required
to commit the offense. According to defendant, whereas the first clause
“means to deter or prevent the officer’s future performance by a violent
threat,” the second clause “means to deter or prevent the officer’s present
performance of a duty by the application of violent force, an assault.” This
argument disregards the disjunctive “or” in both the first and second clauses
of the statute. The first clause does not refer to “a violent threat;” rather, it
refers to an attempt, by means of “threat or violence,” to deter an officer. The
second clause, in turn, does not refer to “violent force;” rather, it refers to
resisting an officer by “force or violence.” (§ 69, subd. (a), italics added; see
People v. Dyer (2002) 95 Cal.App.4th 448, 455 [rejecting as “untenable”
defendant’s argument that MDO statute’s listing of crimes in which the
prisoner “used force or violence or caused serious bodily injury” (§ 2962,
subd. (e)(2)(P)) was confined to crimes against persons since list “is written in
the disjunctive”].)
We therefore conclude that, as used in section 69, subdivision (a),
“force” and “violence” have different meanings, neither has any peculiar legal
meaning, and both are to be understood and applied in accordance with
common usage of the terms.
It remains for us to consider whether “force” or “violence” applied in
accordance with common usage can reasonably embrace conduct that may not
26
constitute an assault under section 240. Bearing in mind that resisting
under section 69, subdivision (a) includes delaying or obstructing an officer
(see Smith, supra, 57 Cal.4th at pp. 241–242), we have no hesitation
concluding the answer is “yes.”
The instant case is illustrative. A reasonable person—confronted by an
individual with a gun, who takes a firing stance, racks and raises the gun,
aims it squarely at the person’s head (so the person is looking “down the
barrel of the gun” and believes he is about to die), and pulls the trigger—
could, and undoubtedly would, consider the aggressor to have engaged in
violent conduct. The targeted person almost certainly will not know whether
or not the gun is loaded or operable. Thus, these distinctions will also almost
certainly be immaterial to the targeted person—whether the gun is loaded or
unloaded, operable or non-operable, the targeted person suffers the same
terror of imminent injury or death, and the gun has the same coercive effect
or, as in the case of the officers here, the same disruptive and obstructive
effect on their efforts to subdue and arrest defendant. 8
8 Indeed, in other contexts, the courts have pointed out that regardless
of the operability of a firearm, its use enhances the violence and risk
attendant to a defendant’s conduct. The crime of carrying a concealed
weapon (former § 12025, subd. (b) [now § 25400]), for example, does not
require that the gun be loaded or operable. (People v. Marroquin (1989)
210 Cal.App.3d 77, 81–82 [the Legislature’s concern is “the imminent threat
to public safety from easily obtainable, concealable weapons used to
perpetuate violent crime;” “the substantiality of that threat exists
irrespective of operability”].) Even a gun use enhancement does not depend
on the operability of the firearm. (§ 12022.5; In re Tameka C. (2000)
22 Cal.4th 190, 196 [use “ ‘as employed in this statute [section 12022.5]
should be broadly construed, consistent with common usage, to check the
magnified risk of serious injury which accompanies any deployment of a gun
in a criminal endeavor’ ” (quoting People v. Granado (1996) 49 Cal.App.4th
317, 322)]; People v. Williams (1976) 56 Cal.App.3d 253, 255 [gun use
27
The Attorney General posits another example—a person slashes the
tires of a patrol vehicle to impede the officer’s pursuit in order to evade
arrest. Such conduct does not constitute assault of the officer under
section 240, but a jury could reasonably characterize it as an act of “force or
violence” preventing the officer from performing his or her duties. We
observe the same could be said if a person sets fire to a patrol car to preclude
pursuit and arrest by the officer. Such conduct does not constitute an assault
on the officer but could reasonably be characterized as an act of violence
preventing the officer from performing his or her duties. So too, if a person
were to grab a bystander to use as a shield to stall an officer’s pursuit and
facilitate escape. The person does not commit assault on the officer, but the
person’s conduct certainly could be characterized as an act of “force or
violence” preventing the officer from performing his or her duties.
Moreover, we see no public policy reason why resisting, delaying or
obstructing an officer under section 69, subdivision (a) should be confined to
conduct that meets the legal definition of assault. As we have discussed,
there is no statutory contextual reason for departing from the rule that use of
the disjunctive “or” has significance, or the general proposition that “force”
and “violence” are words of ordinary parlance to be understood in accordance
with their common usage. The purpose of section 69, subdivision (a) is to
punish more severely those who engage in acts of aggravated resisting,
delaying or obstructing an officer. Such conduct not only increases the risk to
the officer’s personal safety, but also to that of the person trying to resist,
delay, or obstruct the officer, and to that of any bystanders. Here, the officers
came within a hair’s breadth of shooting defendant, and they were also
enhancement statute “imposes no requirement upon the People, either to
produce the gun or to prove it was operable”].)
28
concerned about potentially stray shots injuring anyone in neighboring
buildings. In our view, the dangerous scenario that unfolded here comes well
within the ambit of section 69, subdivision (a).
Thus, while we understand why, given the statutory language, assault
cannot be committed with an unloaded or inoperable firearm (unless used as
bludgeon), we see no reason why that should be the case under the entirely
different language section 69, subdivision (a). 9
We therefore reject the foundational premise of defendant’s
argument—that assault is a necessarily included lesser offense of a resisting
charge under section 69, subdivision (a)—and, in turn, reject his contention
that because there was no evidence his gun was loaded and he therefore could
not be convicted of assault, he could not be convicted of the section 69,
subdivision (a) resisting charges and was entitled to acquittal. Rather, we
agree with the Attorney General that determining whether defendant used
“force” or “violence” to resist the officers performing their duties was a matter
properly left to the jury. 10
9 We note that in light of the endemic use of firearms and the fear and
violence they engender, regardless of whether they are loaded or unloaded,
operable or inoperable, one court has urged that even in the context of
assault the rule that the offense cannot be committed with an unloaded or
inoperable firearm should be reexamined. (People v. Lochtefeld (2000)
77 Cal.App.4th 533, 542, fn. 10 [the “operability” requirement is an
anachronism which is incompatible with the realities of a society in which the
unlawful use of guns is a major and continuing problem].)
10 Given our rejection of defendant’s argument that he was entitled to
acquittal on the section 69, subdivision (a) counts, we need not consider his
related argument that he was entitled to a pinpoint instruction on assault.
We also need not, and do not, address the Attorney General’s
alternative argument that defendant’s “racking of the pistol, pointing and
pulling the trigger formed substantial evidence that [the gun] was loaded,”
citing People v. Rodriguez (1999) 20 Cal.4th 1. In Rodriguez, our Supreme
29
Sentencing Issues
The Trial Court Proceedings
The jury found true the aggravating factor that defendant was armed
with or used a weapon at the time of the commission of the crime (Cal. Rules
of Court, rule 4.421(a)(2)). 11 The jury found not true three other aggravating
factors—that the offense involved great violence, great bodily injury, the
threat of great bodily harm, or other acts disclosing a high degree of cruelty,
viciousness, or callousness (rule 4.421(a)(2)), the offense involved “planning,
sophistication, or professionalism” (rule 4.421(a)(8)), and defendant engaged
in “violent conduct that indicates a serious danger to society”
(rule 4.421(b)(1)).
In its sentencing report, the probation department recommended an
aggregate term of eight years four months based in part on three other
aggravating factors—defendant was convicted of “other crimes for which
consecutive sentences could have been imposed but for which concurrent
sentences are being imposed” (rule 4.421(a)(7)), “defendant’s prior convictions
Court reversed the Court of Appeal’s determination that there was
insufficient evidence defendant’s gun was loaded to support his conviction of
assault with a firearm. (Id. at pp. 5, 10–12.) The high court observed the
defendant’s own “statements and behavior while making an armed threat
against a victim may warrant a jury’s finding the weapon is loaded.” (Id. at
p. 12.) We note, however, that in the instant case, the prosecutor never
argued the gun was loaded but argued, “It is a use of force to take a gun, a
gun that you don’t know if it is loaded, don’t know if it [is] unloaded and point
it so that you are looking down the barrel, so you are seeing that this might
be your last moments on this earth, that is use of force. That is a use of
violence.” Nor did the prosecutor object to defendant’s assertion during
closing argument that there was no evidence the gun was loaded. The
prosecutor also never argued during the hearing on defendant’s motion for
acquittal that there was substantial evidence the gun was loaded
11 All further rule references are to the California Rules of Court.
30
as an adult or sustained petitions in juvenile delinquency proceedings are
numerous or of increasing seriousness” (rule 4.421(b)(2)), and “defendant’s
prior performance on probation, mandatory supervision, postrelease
community supervision, or parole was unsatisfactory” (rule 4.421(b)(5)). 12
In his sentencing brief, defendant asked the trial court to either grant
probation, dismiss the firearm enhancement or strike the additional term of
imprisonment pursuant to section 1385, or impose the mitigated term
pursuant to section 1170, subdivision (b)(6).
The prosecutor urged the court to impose the aggravated term given
the aggravating factor found true by the jury and three aggravating factors
identified in the probation report.
At the outset of the sentencing hearing, the court stated it had
reviewed counsels’ briefs and the probation report. It then heard from
defendant’s sister and defendant, and listened to the prosecutor read from a
written statement by defendant’s mother, each of whom discussed
defendant’s traumatic childhood and debilitating drug use.
The court indicated it was not going to grant probation and was,
instead, considering the midterm. It then turned to “the three factors in
aggravation that are typically left up to the court”—namely, that defendant
had been convicted of other crimes for which consecutive sentencing could be
12 The department identified the following mitigating facts: the search
of defendant’s car revealed “an operable but unloaded pistol;” it did not
“appear any victims were shot, despite the defendant pulling the trigger at
least once during the incident;” and it appeared the firearm “was presumably
unloaded.” The department additionally noted, based on information
provided by defendant’s family and by defendant during his probation
interview, “it appears [defendant] experienced psychological and physical
childhood trauma that contributed to his substance abuse and likely his
declining mental health as an adult, which appear to have been underlying
factors in the commission of these crimes.”
31
imposed (rule 4.421(a)(7)), had suffered numerous prior convictions
(rule 4.421(b)(2)), and had performed poorly on prior grants of probation
(rule 4.421(b)(5)). The court determined all three factors applied.
Weighing these three aggravating factors against “what they call now
the super mitigant,” 13 the trial court concluded “they balance out. . . . I don’t
find one group of aggravating factors more persuasive than the super
mitigant or the super mitigant [of] more weight than the aggravating factors
under (a)(7) [conviction of other crimes for which consecutive sentences could
have been imposed], (b)(2) [convictions that “are numerous or of increasing
seriousness”], and (b)(5) [unsatisfactory performance on probation]. To put it
simply in my mind they kind of cancel each other out. [¶] And I look at the
offense, the circumstances, what happened, which was very, very, very
dangerous and serious, and I do believe that the midterm on count 1 should
be imposed.”
Defense counsel then inquired, “what evidence is the court relying on
as to 4.421(b)(2) and 4.421(b)(5), that would be the numerous convictions and
the poor past performance on probation?” The court replied, “Those partly
come through referenced in the pre-sentence report, but if you . . . look at the
13 A “super mitigant” is a “mitigating factor enumerated in Pen[al Code
section] 1170(b)(6) that, if established as a contributing factor to the
commission of the offense, limits the court to imposition of the low term of
imprisonment, unless the court finds the aggravating circumstances
outweigh the mitigating circumstances so that imposition of the low term
would be contrary to the interests of justice” or “a mitigating factor
enumerated in Pen[al Code section] 1385(c)(2) that requires or weighs greatly
in favor of the court dismissing or striking any additional punishment for
conduct and status enhancements unless the court finds there is a likelihood
that dismissal would result in physical injury or serious danger to others. ”
(Cal. Criminal Law: Procedure and Practice (Cont.Ed.Bar 2d ed. 2023)
§ 37.5.)
32
court record in the file there are quite a few pleadings that reference the prior
probation grants and those facts and circumstances. So partly by reading
just the court record, plus there is another case that’s even on calendar today
that has other offenses, but also through the probation pre-sentence report
and references as well to those grants of probation. There is a juvenile
record. There is an adult record of convictions in Sonoma County dating back
to . . . 2011, some of those are misdemeanors. So they are all pretty much
listed in the pre-sentence report. I acknowledge most of them are
misdemeanors but there is poor performance there. There is [sic] also some
reports from the jail of rule breaking and warnings, second and third
warnings and then not complying. So I’m just not confident [defendant] can
succeed and follow probation’s plan.”
Defense counsel replied, “I understand. I just wanted to understand
the court’s basis. I do want to for the record state my objection to reliance on
the probation report. I’m not sure if that’s proper for this purpose. Just for
the record I just want that to be noted as well as the court looking at the
prior pleadings within the file in this case as well.”
The trial court proceeded to sentence defendant to seven years four
months (consisting of the midterm of two years for count 1, four years for the
attached firearm enhancement, and eight months each for counts 6 and 8). 14
Section 1170, subdivision (b)(3)
Defendant maintains he is entitled to a new sentencing hearing
because the trial court was assertedly “unaware of its discretion” under
section 1170, as amended by Senate Bill No. 567 (2021–2022 Reg. Sess.)
(Stats. 2021, ch. 731, § 1.3, eff. Jan. 1, 2022). He claims the “record shows the
court was unaware that amended section 1170 did not permit the court to
14 The court stayed the two-year sentence for count 5.
33
select a term of imprisonment based on aggravating factors unless they were
either found by the jury or the defendant stipulated to them” and,
specifically, that the court’s determination that his prior convictions were
“numerous or of increasing seriousness” (rule 4.421(b)(2)) and he performed
poorly on prior grants of probation (rule 4.421(b)(5)) violated section 1170,
subdivision (b)(3). In other words, on appeal, defendant does not argue that
his prior convictions were not properly proven. Rather, he argues the trial
court could not, under subdivision (b)(3), go on, and on the basis of his prior
convictions, determine they were “numerous or of increasing seriousness”
(rule 4.421(b)(2)) or determine that he performed poorly on prior grants of
probation (rule 4.421(b)(5)).
In People v. Wiley (2023) 97 Cal.App.5th 676, 686 (Wiley), review
granted March 12, 2024, S283326, the court considered and rejected this
same argument, observing that the appellate courts are divided on the import
of amended section 1170, subdivision (b)(3), which states, in pertinent part,
“Notwithstanding paragraphs (1) and (2) [of section 1170, subdivision (b)],
the court may consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without submitting the
prior convictions to a jury. This paragraph does not apply to enhancements
imposed on prior convictions.” (§ 1170, subd. (b)(3).)
“Some courts have treated the prior conviction exception under
section 1170, subdivision (b)(3) as having the same scope as the exception
under the Sixth Amendment. ([People v.] Pantaleon [(2023)] 89 Cal.App.5th
[932,] 938 [Pantaleon] [under 6th Amend. and § 1170, subd. (b)(3), ‘the fact of
a prior conviction includes “other related issues that may be determined by
examining the records of the prior convictions” ’]; accord, People v. Ross
(2022) 86 Cal.App.5th 1346, 1353 . . . , review granted Mar. 15, 2023,
34
S278266 [under § 1170, subd. (b)(3), trial court could rely on certified
conviction records to consider recidivism-based aggravating factors under
rule 4.421(b), including the defendant’s multiple offenses, prior prison term,
and poor performance on parole and probation; trial court committed Senate
Bill 567 error, however, by relying on ‘crime-based aggravating factors’ set
forth in rule 4.421(a)]; People v. Flowers (2022) 81 Cal.App.5th 680, 685–686,
. . . review granted Oct. 12, 2022, S276237.)” (Wiley, supra, 97 Cal.App.5th at
p. 684, review granted.)
“Other courts have suggested that, under section 1170,
subdivision (b)(3), such factors as the increasing seriousness of a defendant’s
convictions must (at least in some circumstances) be submitted to a jury
rather than determined by the court from a certified record of convictions.
(See People v. Butler (2023) 89 Cal.App.5th 953, 959, 961, 955, . . . review
granted May 31, 2023, S279633 [in analyzing prejudice from Senate Bill 567
error, appellate court stated (1) prior prison terms ‘could have been proven by
certified records of conviction,’ but (2) it was ‘not clear whether a jury would
have found beyond a reasonable doubt that Butler’s four admitted prior
convictions were of “increasing seriousness” ’]; People v. Falcon (2023)
92 Cal.App.5th 911, 952, fn. 12, 953–955, . . . review granted Sept. 13, 2023,
S281242 (Falcon) [noting ‘amended section 1170(b) now effectively
incorporates Sixth Amendment principles,’ but questioning whether § 1170,
subd. (b)(3) has the same scope as the constitutional exception for prior
convictions, and ultimately declining to resolve that question]; see also People
v. Dunn (2022) 81 Cal.App.5th 394, 404–405 . . . & fn. 8, review granted
Oct. 12, 2022, S275655 [some aggravating factors were proved by certified
record of conviction or by defendant’s admission; that defendant was on
probation at time of charged offense was not proved by those methods, so
35
upper term sentence was erroneous due to retroactive application of Senate
Bill 567].)” (Wiley, supra, 97 Cal.App.5th at pp. 684–685, review granted.)
After a thorough analysis of the Sixth Amendment and amended
section 1170, subdivision (b)(3)—which “ ‘preserves [the] distinction’ ” in
Sixth Amendment jurisprudence establishing “ ‘ “the right to a jury trial does
not apply to the fact of a prior conviction” ’ ”—Wiley agreed with those courts
concluding “the prior conviction exception in section 1170, subdivision (b)(3)
includes both the fact of a prior conviction and ‘other related issues’ [citation]
that may be determined from a certified record of conviction. (See [People v.]
Gallardo (2017) 4 Cal.5th [120,] 138 . . . [‘Our precedent instructs that
determinations about the nature of prior convictions are to be made by the
court, rather than a jury, based on the record of conviction.’].)” (Wiley, supra,
97 Cal.App.5th at p. 685, review granted, quoting Pantaleon, supra,
89 Cal.App.5th at p. 938.) Wiley further agreed that “these related issues
include the two factors [defendant] contends the trial court should not have
considered—the increasing seriousness of [his] convictions (rule 4.421(b)(2))
and his poor prior performance on probation (rule 4.421(b)(5)).” (Wiley,
supra, at pp. 683–685.)
We agree with Wiley and reach the same conclusion here.
Section 1170, subdivisions (b)(5) and (b)(6)
Defendant also claims the trial court violated section 1170,
subdivisions (b)(5) and (b)(6) by both imposing a gun use enhancement under
section 12022.5, subdivision (a) and relying on the jury’s true gun use
aggravation finding (rule 4.421(a)(2)) to justify imposition of the midterm
rather than the low term under subdivision (b)(6).
Subdivision (b)(5) states, “The court may not impose an upper term by
using the fact of any enhancement upon which sentence is imposed under any
36
provision of law.” (§ 1170, subd. (b)(5), italics added.) As the court explained
in Chavez Zepeda v. Superior Court (2023) 97 Cal.App.5th 65, 74 (Zepeda),
“Senate Bill 567 amended section 1170, subdivision (b) to make the middle
term the maximum that may be imposed absent additional findings. (§ 1170,
subd. (b)(1).) To comply with Cunningham [v. California (2007) 549 U.S.
270], section 1170(b)(2) now provides that a court may impose the upper term
only if ‘there are circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term, and the
facts underlying those circumstances have been stipulated to by the
defendant, or have been found true beyond a reasonable doubt at trial by the
jury or by the judge in a court trial.’ In its analysis of Senate Bill 567, the
Senate Committee on Public Safety noted that the bill’s proponents ‘argue
that this change is necessary to ensure that harsher sentences receive the
greatest scrutiny and justification before they are imposed,’ and that ‘[b]y
allowing aggravating factors to be submitted to the factfinder, defendants
will be better able to dispute the information on the record that may not be
true.’ (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 567 (2021–2022
Reg. Sess.) as amended Mar. 9, 2021, p. 4 (Senate Committee Analysis).)”
(Zepeda, at p. 74.)
The trial court did not impose an upper term for any of the crimes of
which defendant was convicted. Rather, it imposed the midterm.
Defendant’s argument is therefore more nuanced. He asserts the trial court
violated section 1170, subdivision (b)(5) by including the jury’s gun use
aggravating factor (rule 4.421(a)(2)) in its weighing under section 1170,
subdivision (b)(6) and concluding the midterm, rather than the low term, was
the appropriate sentence.
37
Where the trial court finds a “supermitigant,” as the trial court did
here, section 1170, subdivision (b)(6) requires imposition of the low term
“unless the court finds that the aggravating circumstances outweigh the
mitigating circumstances.” (§ 1170, subd. (b)(6).)
It is clear from the record that after the trial court concluded the
aggravating factors set forth in rule 4.421(a)(7) (defendant was convicted of
other crimes for which consecutive sentencing could be imposed),
rule 4.421(b)(2) (defendant had convictions that were “numerous or of
increasing seriousness”), and rule 4.421(b)(5)) (defendant performed poorly on
prior grants of probation) “balance[d] out” the “supermitigant” (defendant’s
traumatic upbringing and debilitating drug use), it went on to conclude that
the jury’s aggravated factor finding under rule 4.421(a)(2) (defendant was
armed with or used a weapon at the time of the commission of the crime) and
other grievous aspects of defendant’s conduct tipped the balance, such that
aggravating circumstances outweighed mitigating circumstances and
permitted a midterm, rather than a low term, sentence under section 1170,
subdivision (b)(6).
The Attorney General makes no response to defendant’s
subdivision (b)(5) and (b)(6) argument and, thus, effectively concedes the trial
court violated section 1170, subdivision (b)(5) by both imposing a gun
enhancement under section 12022.5, subdivision (a) and relying on the jury’s
gun use aggravation finding (rule 4.421(a)(2)) to justify imposing a higher
term sentence than is otherwise required by section 1170, subdivision (b)(6).
Rather, the Attorney General argues “most” of the aggravating factors relied
on by the trial court were permissibly determined under section 1170 and
therefore any sentencing error was harmless.
38
It has long been the rule that courts “generally cannot use a single fact
both to aggravate the base term and to impose an enhancement.” (People v.
Scott (1994) 9 Cal.4th 331, 350; § 1170, subd. (b)(5); rule 4.420(g).)
Accordingly, on appeal, we review the record to determine whether there is
any substantial evidence of conduct supporting the aggravating factor other
than the conduct supporting the enhancement. (See People v. Garcia (1995)
32 Cal.App.4th 1756, 1775.) If the trial court could only have based the
aggravating factor on the evidence giving rise to the enhancement, then the
sentence must be reversed. (Ibid.)
Here, it is clear the trial court both sentenced defendant on the
section 12022.5, subdivision (a) gun use enhancement and relied on the jury’s
gun use aggravated factor finding to justify departing from the low term
otherwise required under section 1170 subdivision (b)(6). We therefore
cannot conclude the trial court’s “dual use” of defendant having brandished a
gun was not prejudicial, and we must therefore reverse and remand for
resentencing.
Given this conclusion, we need not reach defendant’s additional
section 1170, subdivision (b)(6) argument based on his assertion the court
permissibly found but one aggravating factor—that he was convicted of
crimes as to which consecutive sentences could be imposed
(rule 4.421(a)(7))—and had the trial court weighed that single factor against
the “super mitigant,” it would have imposed the low term under section 1170,
subdivision (b)(6). In any case, this argument assumes all of his challenges
to the aggravating factors have merit, but we have concluded otherwise. In
our view, the trial court did not err in determining defendant suffered
numerous prior convictions (rule 4.421(b)(2)) and performed poorly on prior
grants of probation (rule 4.421(b)(5)). However, the court did err by relying
39
on the jury’s gun use aggravation finding (rule 4.421(a)(2)) to justify imposing
a midterm sentence, rather than the low term sentence otherwise required
under subdivision (b)(6), and reversal and remand is required for that reason,
alone.
DISPOSITION
The matter is remanded for a new sentencing hearing. The clerk shall
prepare an amended minute order. In all other respects, the judgment is
affirmed.
BANKE, J.
WE CONCUR:
HUMES, P. J.
LANGHORNE WILSON, J.
(People v. Morgan; A166435)
40
People v. Morgan (A166435)
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Bradford DeMeo
Attorneys:
Michael Edward Allen, under appointment by the First District
Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General of California, Lance E. Winters,
Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant
Attorney General, Donna M. Provenzano, Supervising Deputy Attorney
General, David H. Rose, Deputy Attorney General for Plaintiff and
Respondent.
41