Filed 8/5/14 P. v. Campbell CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063806
Plaintiff and Respondent,
v. (Super. Ct. No. SCN313019)
ERIC GREGORY CAMPBELL,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Kimberlee A. Lagotta, Judge. Affirmed.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Lise S.
Jacobson, Deputy Attorneys General for Plaintiff and Respondent. INTRODUCTION
A jury found Eric Gregory Campbell guilty of one count of felony resisting an
executive officer (Pen. Code, § 69)1 and one count of misdemeanor resisting an officer
(§ 148, subd. (a)(1)). At the sentencing hearing, the trial court denied Campbell's oral
motion under section 17, subdivision (b) (17(b) motion) to reduce the felony conviction
to a misdemeanor. The court then suspended imposition of sentence and placed
Campbell on three years of formal probation for the felony conviction and three years of
summary probation for the misdemeanor conviction.
Campbell appeals, contending: (1) there was insufficient evidence to convict him
of the felony charge; (2) the court prejudicially erred by failing to sua sponte instruct the
jury on what constitutes a lawful detention and arrest; and (3) the court abused its
discretion by denying his 17(b) motion. We conclude there was sufficient evidence to
support the jury's verdict, any instructional error was harmless, and the court acted within
its broad discretion to deny the 17(b) motion. We, therefore, affirm the judgment.
BACKGROUND
Prosecution Evidence
San Diego County Sheriff's Deputy Frank Leyva responded to a call about a house
party with more than 200 teenagers and underage adults drinking and smoking. Deputy
Leyva and other deputies briefly staged nearby and then drove to the house. Parked cars
lined the entire street. Deputy Leyva stopped in front of the house, got out of his patrol
1 Further statutory references are also to the Penal Code unless otherwise stated. 2 car, and approached the house. He heard kids yelling, screaming, and partying in the
backyard. He flashed his flashlight in the backyard and the partygoers scattered. As they
scattered, some of them remarked, "Fk you[]. Fk the cops."
About 20 to 30 minutes later, the partygoers began leaving in mass while
continually calling out, "Fk you. Fk you pigs." Deputy Leyva started directing
traffic in front of the house. While he was doing so, a young man shouted from the
driveway, "Fk you, fk the cops." Leyva approached the young man, who ran into
the backyard. Deputies Leyva and Dylan Haddad followed him. There they saw
Campbell yelling at Deputy Jessica Charles. Charles asked Campbell if he was the
homeowner because he appeared to be the oldest person at the party. She also asked him
why he was the only adult at a high school party. Campbell responded, "You are a ct."
She told him he was "being worthless" and walked away with a man she had previously
detained for throwing a beer bottle at her feet and saying, "F you. Get away from me.
It's my f'in house."
Deputy Haddad approached Campbell after hearing his remark to Deputy Charles.
Campbell said, "Fk you, pigs. Go get a donut." Campbell's eyes were bloodshot, his
speech was slurred, and Haddad could smell alcohol on him from five feet away.
Campbell turned and walked into his basement apartment, slamming the door shut behind
him. He yelled something like, "Fk you guys. Kick the door in. You already gave me
a $500 ticket."
3 Deputy Leyva resumed directing traffic in front of the house. A short while later,
a car drove up. Leyva stopped the car about 25 yards from the house. The driver said
she was Campbell's girlfriend and was going to Campbell's home. About then, Campbell,
who was six feet tall and weighed about 180 pounds, jogged toward Leyva, yelling and
screaming, "Fk you. That's my fking girlfriend. She will park wherever the fk
she wants." Leyva could smell alcohol on Campbell.
Campbell pointed his right hand at Deputy Leyva who could see something white
in it, but did not know what the object was and did not know whether Campbell was
armed. Leyva commanded Campbell to stop three times. Campbell did not acknowledge
or comply with these commands. Instead, he continued to yell statements like, "[F]k
you, fk off, that's my fking girlfriend. She can park wherever the fk she wants.
Let her go. She hasn't done anything."
Deputy Leyva thought he would have to move to avoid being trampled, but
Campbell slowed to a walk as he neared Leyva. Intending to detain Campbell for failing
to listen to him and to get him out of the street, Leyva reached for Campbell's raised hand
and told him to put his hands behind his back. However, before Leyva could get a solid
grip on Campbell's hand, Campbell pulled away. Leyva did not know whether Campbell
would try to strike, punch or tackle him. Leyva stepped aside, grabbed Campbell's shirt
or arm, and pushed Campbell forward. Campbell ended up on the hood of his girlfriend's
car. Leyva told Campbell to put his hands behind his back. When Campbell did not
4 comply, Leyva reached for Campbell's right wrist. As Leyva did so, Campbell tucked his
arms underneath himself trapping Leyva's right hand in the process.
Deputy Leyva felt vulnerable because he did not know Campbell or his girlfriend
and his girlfriend's car was running. Leyva grabbed Campbell with his left hand, pulled
Campbell off the hood, and tossed him into the street. Their feet became entangled and
Leyva, who was 5 feet 10 inches tall and weighed approximately 275 pounds with his
vest, belt, and other equipment on, fell on top of Campbell on the asphalt. Leyva's right
hand remained trapped underneath Campbell. Although Leyva was eventually able to
free his right hand, Campbell continued to ignore Leyva's verbal commands to stop
resisting and to put his arms behind his back.
Deputy Haddad saw Deputy Leyva struggling with Campbell and ran to assist.
Campbell was lying face down with his hands under his body, swinging his arms in a
forceful manner and thrashing his body. Haddad, who was 5 feet 6 inches tall and
weighed about 160 pounds, kneeled on Campbell's left side and delivered two knee
strikes. Campbell continued moving his head from left to right and attempted to stand
up. Haddad pushed him back to the ground. Campbell ignored the deputies' commands
to stop resisting and show his hands, and they still did not know then whether he had any
weapons.
At some point, Deputy Leyva punched Campbell in the shoulder and was able to
get Campbell's left hand behind his back. Leyva removed an object from Campbell's
hand and tossed it to the side. A third deputy struck Campbell's shoulder blade with a
flashlight to get Campbell to move his right hand from under his stomach to behind his
5 back. When the flashlight strikes were unsuccessful, the deputy stunned Campbell with
an electroshock weapon.
After the deputies handcuffed Campbell and rolled him over, Leyva noticed
Campbell's forehead was bleeding. Deputies Leyva and Haddad walked Campbell to the
patrol car and, when they reached it, Campbell tensed up, pushed off the back of the car,
and slammed his body into Haddad. Haddad gave Campbell's left thigh two knee strikes
and Campbell got into the car.
Deputy Haddad drove Campbell to the hospital, where hospital staff used staples
to close an approximately one-inch laceration on Campbell's forehead. Leyva only
sustained a minor cut on one of his fingers. Leyva described Campbell's level of
resistance that night as an eight on a scale of one to ten, with ten being the highest.
A neighbor saw Campbell handcuffed in the driveway, heard the deputies
repeatedly ask him to stay on the ground, and saw him repeatedly trying to get up. The
neighbor also heard Campbell yelling for his girlfriend to "videotape this." Nothing
about the deputies' behavior caused the neighbor to want to complain about them.
The teenage party hostess saw Campbell running toward his girlfriend's car with a
red camcorder and throw it in the car. The hostess did not see overly forceful conduct by
the deputies toward the partygoers.
When Campbell returned home the next day, he told the hostess he was going to
sue her and her parents and asked her to pay his bail. He also asked her to provide a
statement and to find three friends who would write statements indicating the deputies
attacked him and he did not assault a deputy. He told her it would be better if her friends
6 did not know him, it did not matter whether they attended the party, and they would not
have to testify in court.
A sheriff's lieutenant testified as an expert in the use of force. He explained what
the phrase "use of force" meant and some of the force options available to deputies,
depending on the circumstances. In response to hypothetical questions mirroring the
facts of this case, he opined the deputies' escalating use of force was reasonable.
Defense Evidence
Campbell testified he spoke with two deputies at the party and told them he lived
at the home. When one of the deputies commented he looked too old for the party, he
responded he was not part of the party and went back to his apartment, which was on the
lower level in the rear of the house. As he was entering the apartment, he encountered
Deputy Leyva, who asked him who he was and what he was doing. He ignored Leyva
because he had already spoken with another deputy and did not feel he could be of further
assistance. After entering his apartment, he shut, not slammed, the door behind him. He
then talked on the phone with his girlfriend.
When his girlfriend told him she was coming up the street, he told her he would
meet her. He walked to a neighbor's driveway and saw her in her car answering Deputy
Leyva's questions. Because her English was not "real good," he put his hand up, pointed
to the car, and said, "Officer, that's my girlfriend." "Can I help her park her car?" Leyva
asked him, "Who are you?" Campbell replied, "I'm the guy who lives down in the back
of the house." Leyva responded, "Oh. Come out here. I can't see you."
7 Campbell walked toward his girlfriend's car. Campbell did not have anything in
his hands. He met Deputy Leyva in front of the car and Leyva grabbed his right wrist,
twisted him around, and pushed him onto the hood. He asked Leyva, "Why are you
doing this to me? I didn't do anything wrong?" As Leyva elbowed Campbell in the back
and started handcuffing Campbell, Leyva responded, "I'll teach you to slam the door in
my face." Campbell denied spitting, swearing or trying to kick Leyva, but acknowledged
he probably squirmed to readjust the handcuffs.
Deputy Leyva moved Campbell from the hood of the car to the ground. Leyva
then sat on Campbell, and hit Campbell's back and shoulders with his fist. Leyva or a
second officer hit Campbell's head and shoulders with a flashlight. Then, Campbell
received 15 seconds of electric shock to his side. Campbell screamed, "I'm still," four
times before the deputies stopped. He felt like he had almost been killed.
Two of the deputies picked him up and carried him to a patrol car because he
could not stand up. When they got to the car, they hit his knees a few times and then
threw him into the back of it.
Campbell said he had had a couple of beers that evening, but he was not drunk.
He denied asking the teenage party hostess to find people to fabricate statements, but he
admitted asking her for bail money. He believed she was responsible for what had
happened to him because she hosted the party.
Campbell's girlfriend also testified and essentially corroborated Campbell's
version of events. She estimated the deputies hit Campbell between 25 and 30 times.
She did not see Campbell spit at, punch, hit, or kick the deputies at any time.
8 DISCUSSION
I
Sufficiency of Evidence Claim
Campbell contends there is insufficient evidence to support his conviction for
violating section 69. In evaluating Campbell's claim, " 'we review the whole record to
determine whether any rational trier of fact could have found the essential elements of the
crime . . . beyond a reasonable doubt. [Citation.] The record must disclose substantial
evidence to support the verdict—i.e., evidence that is reasonable, credible, and of solid
value—such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] In applying this test, we review the evidence in the light
most favorable to the prosecution and presume in support of the judgment the existence
of every fact the jury could reasonably have deduced from the evidence. [Citation.] . . .
A reversal for insufficient evidence "is unwarranted unless it appears 'that upon no
hypothesis whatever is there sufficient substantial evidence to support' " the jury's
verdict.' " (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
Section 69 provides: "Every person who attempts, by means of any threat or
violence, to deter or prevent an executive officer from performing any duty imposed upon
such officer by law, or who knowingly resists, by the use of force or violence, such
officer, in the performance of his duty, is punishable by [fine, imprisonment, or both]."
"The 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
9 of his or her duty." (In re Manuel G. (1997) 16 Cal. 4th 805, 814; accord, People v.
Smith (2013) 57 Cal.4th 232, 240.) Both parties agree the jury convicted Campbell under
the second theory.
A conviction under the second theory requires proof "the defendant resist[ed] the
officer 'by the use of force or violence' " and "that the officer was acting lawfully at the
time of the offense." (People v. Smith, supra, 57 Cal.4th at p. 241; see CALCRIM No.
2652.) Campbell contends there was insufficient evidence to establish either of these
elements. Rather, the evidence shows the deputies used excessive force against him.
However, the evidence, viewed in the light most favorable to the judgment,
showed Deputy Leyva and the other deputies went to the home where Campbell was
living to break up an out-of-control party. While Leyva was attempting to direct traffic,
which Campbell does not dispute was a lawful duty, Campbell jogged toward him
shouting expletives. Campbell carried an unknown object in his right hand, which he had
pointed at Leyva, and he ignored Leyva's repeated commands to stop. When Campbell
neared Leyva, Leyva attempted to detain Campbell and commanded Campbell to put his
hands behind his back. Instead of complying with Leyva's command, Campbell put his
hands underneath his torso and trapped one of Deputy Leyva's hands on the hood of a
running vehicle. Campbell thrashed about and continued resisting Leyva's commands
despite receiving fist strikes, flashlight strikes, and knee strikes. He did not initially stop
resisting until a deputy administered electric shocks. He then resumed resisting when
deputies tried to place him in a patrol car until he received two knee strikes. Collectively,
this evidence supports his conviction for violating section 69. (See People v. Bernal
10 (2013) 222 Cal.App.4th 512, 518-519; People v. Carrasco (2008) 163 Cal.App.4th 978,
985-986.)
The existence of conflicting evidence favorable to Campbell does not alter our
conclusion. " ' "Conflicts and even testimony [that] is subject to justifiable suspicion do
not justify the reversal of a judgment, for it is the exclusive province of the trial judge or
jury to determine the credibility of a witness and the truth or falsity of the facts upon
which a determination depends. [Citation.] We resolve neither credibility issues nor
evidentiary conflicts; we look for substantial evidence." ' " (People v. Manibusan, supra,
58 Cal.4th at p. 87.) As there is substantial evidence to support Campbell's felony
conviction in the record before us, we conclude he has not established the conviction
should be reversed on this ground.
II
Instructional Error Claim
A
Using CALCRIM No. 2652, the court instructed the jury the felony crime of
resisting an executive officer required proof that "[w]hen the defendant acted, the officer
was performing his lawful duty." In addition, the court instructed the jury, "[t]he duties
of a peace officer include responding to dispatch calls regarding noise complaints, crowd
control, and keeping the peace." The court further instructed the jury, "A peace officer is
not lawfully performing his or her duties if he or she is unlawfully arresting or detaining
someone or using unreasonable or excessive force in his or her duties. [CALCRIM No.]
2670 explains when an arrest or detention is unlawful and when force is unreasonable or
11 excessive." The court provided substantially similar instructions on the misdemeanor
crime of resisting an officer using CALCRIM No. 2656.
Using an adapted version of CALCRIM No. 2670, the court instructed the jury,
"The People have the burden of proving beyond a reasonable doubt that Leyva [and the
other deputies] were lawfully performing their duties as peace officers. If the People
have not met this burden, you must find the defendant not guilty of Resisting an
Executive Officer or Resisting a Peace Officer.
"A peace officer is not lawfully performing his or her duties if he or she is
unlawfully arresting or detaining someone or using unreasonable or excessive force when
making or attempting to make an otherwise lawful arrest or detention.
"Special rules control the use of force.
"A peace officer may use reasonable force to arrest or detain someone, to prevent
escape, to overcome resistance, or in self defense.
"If a person knows, or reasonably should know, that a peace officer is arresting or
detaining him or her, the person must not use force or any weapon to resist an officer's
use of reasonable force. However, you may not find the defendant guilty of resisting
arrest if the arrest was unlawful, even if the defendant knew or reasonably should have
known that the officer was arresting him.
"If a peace officer uses unreasonable or excessive force while arresting or
attempting to arrest or detaining or attempting to detain a person, that person may
lawfully use reasonable force to defend himself or herself.
12 "A person being arrested uses reasonable force when he or she: (1) uses that
degree of force that he or she actually believes is reasonably necessary to protect himself
or herself from the officer's use of unreasonable or excessive force; and (2) uses no more
force than a reasonable person in the same situation would believe is necessary for his or
her protection."
The court's adaptation of CALCRIM No. 2670 omitted two sections. The first
section, section A, states: "A peace officer may legally detain someone if [the person
consents to the detention or if]: [¶] 1. Specific facts known or apparent to the officer
lead him or her to suspect that the person to be detained has been, is, or is about to be
involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the
same facts would have the same suspicion. [¶] Any other detention is unlawful. [¶] In
deciding whether the detention was lawful, consider evidence of the officer's training and
experience and all the circumstances known by the officer when he or she detained the
person." (CALCRIM No. 2670.)
The second section, section B, states in part: "A peace officer may legally arrest
someone [either] (on the basis of an arrest warrant/ [or] if he or she has probable cause to
make the arrest). [¶] Any other arrest is unlawful. [¶] Probable cause exists when the
facts known to the arresting officer at the time of the arrest would persuade someone of
reasonable caution that the person to be arrested has committed a crime. [¶] In deciding
whether the arrest was lawful, consider evidence of the officer's training and experience
and all the circumstances known by the officer when he or she arrested the person."
(CALCRIM No. 2670.)
13 The bench notes for CALCRIM No. 2670 state a court should include section A in
its jury instructions "if there is an issue as to whether the officer had a legal basis to
detain someone." The bench notes state a court should give section B "if there is an issue
as to whether the officer had a legal basis to arrest someone." (Bench Notes to
CALCRIM No. 2670.)
B
Although neither party specifically requested the court to instruct the jury with
sections A and B of CALCRIM No. 2670, Campbell contends on appeal the court
prejudicially erred by failing to do so sua sponte.
" 'It is settled that in criminal cases, even in the absence of a request, the trial court
must instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury's understanding of the case.' " (People v. Smith, supra, 57 Cal.4th
at p. 239.)
While there were allusions during the trial to Deputy Leyva's actions possibly
amounting to an unlawful detention and/or arrest, the indisputable focus of the trial was
on whether Deputy Leyva and the other deputies used excessive force against Campbell.
Assuming, without deciding, the court should have nonetheless instructed the jury with
the sections of CALCRIM No. 2670 addressing unlawful detention and arrest, we
conclude any error was harmless under both the state miscarriage of justice standard
14 (People v. Watson (1956) 46 Cal.2d 818, 836-837) and the federal harmless beyond a
reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18, 24).
The jury knew from the instructions given it had to find Campbell not guilty if
Deputy Leyva had unlawfully detained or arrested Campbell. Although the court did not
elaborate on what constituted an unlawful detention or arrest, the parties' presentation of
diametrically opposing versions of events precluded the jury from finding for Campbell
under either theory unless the jury credited Campbell's version of events. The jury
necessarily rejected Campbell's version of events when the jury rejected the theory the
deputies acted with excessive force. Accordingly, we conclude both that it is not
reasonably probable Campbell would have obtained a more favorable result absent the
claimed error and that the record establishes beyond a reasonable doubt the claimed error
did not contribute to the guilty verdict. (See People v. Flood (1998) 18 Cal.4th 470,
505.)
III
Denial of 17(b) Motion Claim
At the sentencing hearing, Campbell orally brought a 17(b) motion to reduce his
felony conviction to a misdemeanor. He argued the nature and circumstances of the
offense, his age, his lack of a prior criminal record, his work history, and his remorse
justified the reduction.
The court denied the 17 (b) motion, finding Campbell's conduct did not warrant
reducing the conviction to a misdemeanor. In reaching its decision, the court explained,
15 "In this case, the defendant took the stand. The jury found he was lying not only to them
but to the court. [¶] He paraded his girlfriend up here to lie for him as well. [¶] The
court heard testimony from his 17-year old neighbor that indicated he attempted to elicit
false testimony through her and her friends as well. [¶] So whatever the conduct that
defendant did on that day, whether that was misdemeanor or felony, it needs to be viewed
in the prism of his conduct after that as well. His conduct after that as well tells this court
that he needs to be on felony probation. [¶] . . . [¶] . . . I do think that a message needs
to be sent to him that he does need to take actual responsibility and have some actual
remorse. [¶] What I have heard from him so far I don't characterize as actual
responsibility or remorse. [¶] His comments to the probation officer are not taking the
responsibility. His comments from the witness stand are not taking responsibility. His
comments from counsel table today are not taking [responsibility]. [¶] He apologizes for
wasting the court's time, never apologizes for putting Deputy Leyva in the situation
where he feared for [his] life and safety and, had the defendant merely listened to the
verbal commands, would not have needed to be done."
Campbell contends the court abused its discretion by denying his 17(b) motion.
We disagree.
A violation of section 69 is a "wobbler" offense in that a court has the discretion to
sentence the crime as either a felony or a misdemeanor. (People v. Superior Court
(Alvarez) (1997) 14 Cal.4th 968, 974.) A court had broad discretion under section 17,
subdivision (b), in deciding whether to reduce a wobbler offense to a misdemeanor.
16 (People v. Superior Court (Alvarez), supra, at p. 977.) We will not disturb the court's
decision on appeal unless the party challenging the decision clearly shows the decision
was irrational or arbitrary. (Ibid.) Absent such a showing, we presume the court acted to
achieve legitimate sentencing objectives. (Id. at pp. 977-978.)
Here, the court considered Campbell's motion and determined it was not
appropriate to reduce Campbell's conviction at that time because his conduct was
dangerous and avoidable, he and his girlfriend lied about his conduct at trial, and he did
not accept responsibility or exhibit remorse for his conduct. Nothing about the court's
stated reasons for denying Campbell's motion indicates the court's decision was irrational
or arbitrary. Accordingly, we conclude Campbell has not established the court abused its
discretion in denying his motion.
DISPOSITION
The judgment is affirmed.
MCCONNELL, P. J.
WE CONCUR:
NARES, J.
AARON, J.