Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCN205885, Joan P. Weber, Judge.
BENKE, Acting P. J.
Ashley B. Pearce was convicted of nine counts of burglary, twelve counts of forgery, one count of grand theft, one count of resisting an officer and one count of attempting to remove an officer's firearm. Pearce was sentenced to a prison term of three years, four months (eight months of this term was based on a separate prosecution). He appeals, arguing the evidence was insufficient to convict him of resisting an officer and attempting to remove an officer's firearm and the trial court erred in the manner it instructed the jury.
FACTS
A. Prosecution Case
In December 2005 appellant cashed a series of forged checks at the Encinitas Wine and Spirits liquor store. On January 3, 2006, appellant came to the store to buy beer. When appellant presented his driver's license, the clerk, Saad Elias, took it, went to the back of the store and called the police. When Elias returned, appellant was gone.
At about 5:20 p.m., Michael Neumann and other deputies were dispatched to the store. The officers were given a description of appellant and his address. They went to that location but appellant was not there. As the sun was setting, Neumann, who saw appellant's picture on the driver's license left at the store, drove through the area in his police car looking for him.
As Neumann drove down Oceanview Street, which was a narrow, unlighted residential street, he saw appellant. Appellant fit the description given at the liquor store. He was riding a bicycle on the wrong side of the road in the same direction Neumann was traveling. Neumann was driving a black and white car with a light bar on the roof and sheriff's decals on the doors. Neumann drove up to within a few feet of appellant and concluded he was the person who had passed the checks at the liquor store. Neumann announced in a loud voice that he was a sheriff's deputy and told appellant to stop. Appellant did not respond. Neumann told appellant twice more to stop but appellant continued riding.
Neumann pulled ahead and stopped. His car was angled in a manner he hoped would block appellant. As Neumann got out of the car, appellant attempted to ride around the rear of the vehicle. Appellant clipped the rear bumper of the car and fell to the ground. As Neumann approached him, appellant started to get up. Neumann, in uniform, told appellant to stay on the ground. Ignoring the order, appellant stood up. As Neumann approached him, appellant backed away and pushed at the officer. Neumann tried to grab appellant's arms, get behind him and handcuff him. Appellant and the officer continued backing up toward a fence. Neumann, unable to grab appellant, decided he would jam him against the fence in an attempt to control him. The men struggled. Neumann attempted to get his hand around appellant's neck and gain control of him by using a carotid restraint hold to cause him to pass out. He was unable to do so and the struggle continued. Neumann did not believe he had control of the situation and decided he was in trouble. Appellant threw him to the ground.
Appellant dropped to his knees, straddled Neumann and grabbed for the officer's gun. Neumann grabbed his gun with one hand, trying to keep it in its holster and punched appellant with the other hand. The punching had no affect on appellant. As the struggle continued, appellant tried to pry the officer's fingers off the gun. Neumann was able to keep him from doing so.
As the men fought for the gun, appellant stated: "Shoot me. Just shoot me. You're going to shoot me." Neumann thought this odd because it appeared appellant was trying to get the gun to shoot the officer. Neumann told appellant he was not going to shoot him. Appellant replied that Neumann was going to chase him and take him to jail. Frightened, Neumann told appellant he was not going to shoot him or take him to jail. Trying anything to get appellant off him, Neumann called him by name and told appellant to get up and run away, and if he did so he would not chase him. Appellant, who never took his eyes off the officer's gun, replied that Neumann would chase him.
Neumann believed he was losing the fight. He told appellant he had children and asked appellant not to hurt him. Neumann began regaining his strength and began fighting harder. He stuck his thumb in appellant's eye. Both the officer and appellant got to their feet. As the officer backed up, appellant was moving toward Neumann and grabbing at his shirt and gun belt.
As Neumann backed up, he again fell to the ground. The men struggled and Neumann was able to throw appellant away from him. The officer, on his knees, drew his gun. Neumann, unsure exactly where appellant was located, pointed his gun where he believed he would be. The officer then saw appellant's silhouette. Appellant was on his hands and knees and was beginning to get up. Believing appellant was getting up to attack again, the officer fired his gun four or five times. Neumann believed he hit appellant but was not sure. As he waited, he could hear appellant moaning.
Other officers arrived and approached appellant to take him into custody. Even though shot, appellant resisted arrest.
B. Defense Case
Appellant testified and denied knowingly passing forged checks. Appellant stated that on January 3, 2006, he went with his roommate to Encinitas Wine and Spirits to buy beer. When he overheard the clerk say he was going to call the police, he left the store to go home to clear up what he believed was a problem with checks he had cashed at the store. His roommate returned home and told appellant he should go back to the store because the police were there.
Appellant got on his bicycle to return to the store. As he rode back, a car that did not have its headlights on pulled in front of him. Appellant ran into the car. Appellant did not know the vehicle was a police car. He did hear the driver say, "Hey, hey, hey," but did not hear him say he was a police officer. Appellant said a man got out of the car and ran toward him. The man got tangled in the bicycle and fell on top of him. Appellant grabbed the man's leg. The man hit appellant in the face and gouged at his eye. Appellant then heard the man use a radio to call for help. At that point, appellant realized the man was a police officer. Appellant stated: "You're not going to take me to jail or shoot me, are you?" Looking at the officer's gun, appellant said: "Don't shoot me. Please don't shoot me." Calling him by name, the officer said he was not going to shoot him. The officer told him to get up and run away. Appellant let go of the officer's leg and got up.
The men were on an embankment. They both began falling backward with appellant falling toward the officer. Appellant fell on top of the officer. The officer again used his radio to call for help and then threw appellant away from him. As appellant tried to get up, the officer shot him.
DISCUSSION
A. Sufficiency of Evidence
Appellant argues the evidence was insufficient to support his convictions for resisting arrest and attempting to take a firearm from a police officer.
In determining whether the evidence is sufficient to support the verdict, we review the entire record viewing the evidence in the light most favorable to the judgment and presuming in support of the verdict the existence of every fact the jury could reasonably deduce from the evidence. The issue is whether the record so viewed discloses evidence that is reasonable, credible and of solid value such that a rational trier of fact could find the elements of the crime beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.)
1. Resisting Arrest
As to the resisting arrest charge, appellant argues the evidence was insufficient to prove that he knew Neumann was a police officer until after Neumann used excessive force against him, and that "as a matter of law" the officer's jamming him against a fence and attempting to subdue him with a carotid artery hold was excessive force that appellant could lawfully resist.
We reject this argument.
Neumann had probable cause to arrest appellant. When a person knows or should know he is being arrested by a peace officer, the person must submit. (Pen. Code, § 834a.) While the area where Neumann confronted appellant was relatively dark, Neumann was driving a well-marked police car and loudly and repeatedly announced his authority. Neumann, dressed in full uniform, got out of his car, approached appellant and ordered him to stay on the ground. The jury could reasonably conclude appellant knew Neumann was a police officer, knew why the officer was confronting him and that the officer was making commands he was required to obey.
Appellant notes an element of the crime of resisting arrest is that the officer is acting in the performance of his or her duty. An officer is not so acting when excessive force is used to make the arrest. An officer's use of excessive force is, therefore, a defense to the crime of resisting arrest. (Susag v. City of Lake Forest (2002) 94 Cal.App.4th 1401, 1409.)
An escalation of violence occurred between appellant and the officer. Appellant did not want to be arrested and applied the level of force necessary to prevent it from occurring. The officer, duty bound to arrest appellant and entitled to defend his life, responded with increasing force. This is a realistic usual pattern of an assaultive resistance to arrest. The evidence allows the reasonable conclusion the escalation of violence was the result of appellant's increasingly violent resistance and that the officer was acting in the performance of his duty in meeting that increasingly violent resistance with increasingly violent responses.
The evidence was sufficient to convict appellant of resisting arrest.
2. Attempting to Take a Firearm from an Officer
In an argument which borders on the frivolous, appellant contends there was insufficient evidence to prove he attempted to take the officer's firearm. Appellant argues the evidence supports the conclusion Neumann's holster merely came open and the gun dislodged during the struggle on the ground.
We reject this argument as well.
Neumann described a life and death struggle for his gun with appellant making great efforts to remove the firearm from its holster. Neumann described both men having their hands on the gun and appellant attempting to pry the officer's fingers off the weapon. Appellant's argument the evidence is insufficient is apparently based merely on the fact he testified he did not attempt to take the gun and other possible explanations exist for the circumstances that led Neumann to believe he was. The evidence was sufficient to convict appellant of attempting to take the officer's firearm.
B. Instructions
1. CALCRIM No. 220
Appellant argues the trial court's use of CALCRIM No. 220, defining reasonable doubt and the presumption of innocence, denied him due process because it somehow prevented the jury from considering a lack of evidence in determining whether a reasonable doubt concerning guilt existed.
The contention has been repeatedly made and repeatedly rejected. In People v. Flores (2007) 153 Cal.App.4th 1088, 1091-1093, the court stated: "Appellant contends that instruction in the language of CALCRIM No. 220 violated his federal right to due process because it prevented the jury from considering the lack of evidence in determining whether a reasonable doubt existed as to his guilt. We disagree.
"CALCRIM No. 220, as given, provided: 'The fact that a criminal charge has been filed against [appellant] is not evidence that the charge is true. You must not be biased against [appellant] just because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. [¶] . . . [¶] Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leads [sic] you with an abiding conviction that the charge is true. The evidence need not element [sic] all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves [appellant] guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.' (Italics added.) The trial court then gave CALCRIM No. 222, which, in pertinent part, defined 'evidence' as 'the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.' That instruction also stated that '[n]othing that the attorneys say is evidence,' that their remarks and questions are not evidence, and '[o]nly the witnesses' answers are evidence.'
"Appellant contends that because reasonable doubt may arise from the lack of evidence in a case as well as from the evidence presented at trial (People v. Simpson (1954) 43 Cal.2d 553, 566, the italicized language in CALCRIM No. 220 combined with the definition of evidence given in CALCRIM No. 222 'contain[s] a flaw resulting in a due process violation because the possibility that a reasonable doubt may arise from the lack of evidence is not included in the basic definition of reasonable doubt.' As argued by appellant, 'by requiring a reasonable doubt to be based on the evidence presented, and by excluding argument as evidence, the instruction prevents the jury from basing a reasonable doubt upon the absence of sufficient evidence, even where defense counsel has argued that sufficient evidence is lacking.' Appellant also contends that the instruction implies that 'lack of evidence does not suffice for acquittal; rather, the defendant must adduce evidence that promotes a reasonable doubt.' We see no reasonable likelihood that the jury understood and applied the instruction in the manner suggested by appellant.
"The due process clause of the Fourteenth Amendment protects the accused against conviction except on proof beyond a reasonable doubt. (In re Winship (1970) 397 U.S. 358, 361–362, and cases cited therein.) The United States Constitution does not require jury instructions to contain any specific language, but they must convey both that the accused is presumed innocent until proved guilty and that the accused may be convicted only upon proof beyond a reasonable doubt. (Victor v. Nebraska (1994) 511 U.S. 1, 5.) When reviewing the correctness of reasonable doubt charges, the proper constitutional inquiry is 'whether there is a reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard.' (Id. at p. 6.) ' "The essential connection to a 'beyond a reasonable doubt' factual finding cannot be made where the instructional error consists of a misdescription of the burden of proof, which vitiates all the jury's findings." [Citation.] Where such an error exists, it is considered structural and thus is not subject to harmless error review. [Citation.] However, if a jury instruction is deemed "ambiguous," it will violate due process only when a reasonable likelihood exists that the jury has applied the challenged instruction in a manner that violates the Constitution. [Citation.] Any challenged instruction must be considered in light of the full set of jury instructions and the trial record as a whole. [Citation.]' (Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812, 820–821; see also People v. Smithey (1999) 20 Cal.4th 936, 963.)
"Here, the plain language of the instruction given tells the jury that '[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.' (CALCRIM No. 220.) . . . . The only reasonable understanding of this language is that a lack of evidence could lead to reasonable doubt. . . .
"Nothing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial. (People v. Hernández Ríos (2007) 151 Cal.App.4th 1154.)
"We see no violation of appellant's federal constitutional rights in the language of CALCRIM No. 220."
We agree. (See also, e.g., People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1268; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509-1510.)
2. CALCRIM No. 224
Appellant argues that CALCRIM No. 224, stating the test for determining whether sufficient circumstantial evidence proves guilt, lowers the prosecution's burden of proof by allowing the jury to find guilt if they believe the defendant is not innocent.
CALCRIM No. 224 states: "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable."
In People v. Anderson (2007) 152 Cal.App.4th 919, 932-933, the court rejected appellant's argument, saying: "Defendant contends CALCRIM No. 224 improperly couches the jury's choices in terms of whether the circumstantial evidence points to him being guilty or innocent, rather than being guilty or not guilty. According to defendant, this places a burden on him to prove his innocence.
"Defendant's argument stems from People v. Han (2000) 78 Cal.App.4th 797 (Han). In Han, the defendant raised this same argument in connection with the trial court's rejection of a proposed modification of CALJIC No. 2.01 to 'substitute[] a lack of finding of guilt for one of innocence.' (Han, supra, at p. 809.) The Court of Appeal agreed the modification would have made the instruction more accurate, explaining: 'We recognize the semantic difference and appreciate the defense argument. We might even speculate that the instruction will be cleaned up eventually by the CALJIC committee to cure this minor anomaly, for we agree that the language is inapt and potentially misleading in this respect standing alone.' (Id. at p. 809.) However, the court went on to conclude the defendant was not harmed because other instructions, primarily the reasonable doubt instruction, prevented any confusion. (Ibid.)
"We cannot agree with the Han court's criticism of CALJIC No. 2.01. For a defendant to be found not guilty, it is not necessary that the evidence as a whole prove his innocence, only that the evidence as a whole fails to prove his guilt beyond a reasonable doubt. In other words, a not guilty verdict is based on the insufficiency of the evidence of guilt.
"However, when considering isolated items of evidence, the issue is different. A particular item of evidence may fall into one of three categories: it may tend to prove guilt; it may tend to prove innocence; or it may have no bearing on guilt or innocence. If the evidence falls into the latter category, it does not support either a guilty or a not guilty verdict. In effect, the evidence is not relevant to the case and should be excluded. Thus, if a particular item of evidence, circumstantial or otherwise, is relevant to the jury's ultimate determination, it is relevant only because it tends to prove either guilt or innocence.
"CALCRIM No. 224 simply recognizes this distinction when the jury is considering the circumstantial evidence as a whole. Notably, each of the cases cited by defendant in support of his preceding argument—that CALCRIM No. 224 should not be limited to circumstantial evidence—also recognizes this distinction. In each, the instruction given referred to guilt and innocence rather than guilt and the absence of guilt. (See Bender, supra, 27 Cal.2d at p. 177 [' "If the evidence in this case is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence" ']; People v. Foster, supra, 198 Cal. at p. 128 ['considering the evidence as a whole, if it was susceptible of two reasonable interpretations, "one looking towards guilt and the other towards the innocence of the defendant" ']; People v. Barthleman, supra, 120 Cal. at p. 10 [' "The jury are instructed that if the evidence points to two conclusions, one consistent with the defendant's guilt, the other consistent with the defendant's innocence" ']; People v. Naumcheff, supra, 114 Cal.App. 2d at p. 281 [' "If from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence" ']; People v. Haywood, supra, 109 Cal.App. 2d at p. 872 [' "the testimony in this case if its weight and effect be such as two conclusions can be reasonably drawn from it, the one favoring the defendant's innocence, and the other tending to establish his guilt" ']; People v. Carroll, supra, 79 Cal.App. 2d at p. 150 [' "You are instructed that if from the evidence you can with equal propriety draw two conclusions, the one of guilt, the other of innocence" '].)"
We agree. The trial court properly instructed the jury in the terms of CALCRIM No. 224.
DISPOSITION
The judgment is affirmed.
WE CONCUR: HUFFMAN, J., NARES, J.