People v. Geradian CA4/2

Opinion

Filed 9/4/20 P. v. Geradian CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E073272

v. (Super.Ct.No. FWV19001074)

JOHN ALAN GERADIAN, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson

and Katrina West, Judges. Affirmed as modified with directions.

Erica Gambale, under appointment by the Court of Appeal, for Defendant and

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa

Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.

1 INTRODUCTION

Defendant and appellant John Alan Geradian was convicted of one count of

battery with injury on a peace officer in violation of Penal Code1 section 243, subdivision

(c)(2), and two counts of resisting an executive officer in violation of section 69. He was

sentenced to three years for the battery and concurrent three-year terms for each of the

resisting an officer counts.

Defendant raises two contentions on appeal: (1) there was insufficient evidence to

sustain the battery conviction; and (2) the sentence on one of the resisting an officer

counts should have been stayed under section 654. We agree that the sentence on one of

the resisting an officer counts should have been stayed under section 654 and otherwise

affirm the judgment.

I.

FACTUAL AND PROCEDURAL HISTORY OF THE CASE

A. Facts

On March 31, 2019, sheriff’s deputy W.S. responded to a department store in

Rancho Cucamonga. When he arrived, defendant was in the automotive department

arguing with a store employee. Deputy S. approached them and asked what was going

on. Defendant was wearing a bulky black coat that extended to his mid-thigh. Deputy S.

patted defendant down to check for weapons, then asked defendant for identification.

1 All further statutory references are to the Penal Code. 2 Defendant gave Deputy S. his identification and the deputy provided the information to

dispatch.

Deputy S. then told defendant he would be searching him a second time. He asked

defendant to turn around and put his hands behind his back. The parties stipulated

Deputy S.’s detention and both searches of defendant were lawful. Defendant turned

around as requested and put his hands behind his back. He asked Deputy S. not to put

him in handcuffs because he had not broken the law. Deputy S. grabbed defendant’s

wrists and felt defendant tense up, so the deputy reached for his handcuffs. As he did

that, defendant turned back around to face the deputy and put his fists up in a fighting

stance. Deputy S. called for backup. Defendant’s fists were at chest level. The deputy

grabbed defendant’s wrists and told him two or three times to turn around and put his

hands behind his back. Defendant did not comply. Deputy S. took defendant to the

ground and continued telling him to stop resisting and to give him his hands.

Defendant’s hands were underneath his body. He was kicking around trying to push up

off the floor.

When sheriff’s deputy R.M. arrived, Deputy S. was on the ground trying to

handcuff defendant with the assistance of two loss prevention employees. Deputy M. ran

over to help. The deputies told defendant multiple times to stop resisting and to put his

hands behind his back. It took about two minutes to get the handcuffs on defendant.

Deputy S. single-locked the handcuffs, meaning the handcuffs could get tighter as

3 defendant moved his wrists. Double-locking the handcuffs would have prevented them

from tightening.

The deputies escorted defendant out of the store in handcuffs. Defendant can be

heard on an audio recording of the incident complaining of pain as they escorted him out

and asking the deputies to lock the handcuffs. One of the deputies told defendant they

would as soon as he “stop[ped] doing that.” Defendant was not cooperating with the

deputies. He was pulling away from them and yelling. He would not walk on his own.

The deputies had to basically drag him out of the store. One of the deputies can be heard

on the audio recording telling defendant, “walk on your own, let’s go,” and, “[s]top it.

Come on, let’s go. Stop it. Come on.”

When they got outside, defendant used his body to push back and forth and against

the deputies. The deputies pushed him against the patrol car to stabilize him. They told

defendant to get in the car. Defendant planted his feet on the ground and refused to get

in. He kicked against the car and put his shoulder against it to avoid being placed inside.

Deputy M.’s face was close to defendant’s body as the deputies struggled to get

defendant in the patrol car. At some point during the struggle, defendant elbowed

Deputy M. in the mouth, chipping the deputy’s front left tooth. Deputy M. can be heard

on the audio recording saying, “He just elbowed me in my fucking face.” Defendant

responded by saying, “I didn’t elbow you in the face, how is that?” “How did I elbow

you in the face,” and, “Did I elbow this guy in the face?” The deputies responded by

telling defendant to relax and to get in the patrol car. After they got defendant into the

4 car, Deputy S. asked Deputy M. if he was okay. Deputy M. responded, “Chipped my

tooth pretty bad.”

Deputy M. testified that his tooth was jagged and uncomfortable after it was

chipped. He went to the dentist around a month-and-a-half later and had his tooth filed

down and reshaped.

B. Proceedings

Defendant was charged in count 1 with battery on a peace officer causing injury

for elbowing Deputy M. (§ 243, subd. (c)(2).) He was charged in count 2 with resisting

Deputy M. (§ 69), and in count 3 with resisting Deputy S. (§ 69). A jury convicted him

of all three counts. The court sentenced defendant to the upper term of three years for

battery and concurrent upper terms of three years each for the two counts of resisting an

executive officer. Neither party nor the court, addressed section 654 at the sentencing

hearing. The court also sentenced defendant to a consecutive term of one year (one-third

the midterm of three years) for an unrelated probation violation case. Defendant timely

appealed.

II.

SUFFICIENCY OF THE EVIDENCE

Defendant argues the evidence was insufficient as a matter of law to convict him

of battery with injury on a peace officer because the evidence did not show that he

willfully struck Deputy M.; rather, defendant argues, the record shows that he recklessly

or accidentally struck the deputy, neither of which satisfy the intent element of battery.

5 When the defendant raises a sufficiency of the evidence claim on appeal, we

“review the whole record in the light most favorable to the judgment below to determine

whether it discloses substantial evidence—that is, evidence which is reasonable, credible,

and of solid value—such that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “[I]t is the

jury, not the appellate court which must be convinced of the defendant’s guilt beyond a

reasonable doubt.” (People v. Bean (1988) 46 Cal.3d 919, 933.) “If the circumstances

reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted

simply because the circumstances might also reasonably be reconciled with a contrary

finding. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)

Battery is the “willful and unlawful use of force or violence upon the person of

another.” (§ 242.) “ ‘Any harmful or offensive touching constitutes an unlawful use of

force or violence’ under this statute. [Citations].” (People v. Shockley (2013) 58 Cal.4th

400, 404.) When a battery is inflicted on a peace officer engaged in the performance of

his or her duties and causes injury to the officer, the offense may be punished as a felony,

provided the defendant knows or reasonably should know that the individual is a peace

officer engaged in the performance of his or her duties. (§ 243, subd. (c)(2).) Injury, for

purposes of the offense, is defined as a physical injury that requires professional medical

treatment. (§ 243, subd. (f)(5).)

Battery is a general intent crime that requires the defendant to act willfully.

(People v. Lara (1996) 44 Cal.App.4th 102, 107; § 242.) As with all general intent

6 crimes, the required mental state entails only an intent to do the act that causes the harm,

not to achieve any additional consequence. (People v. Davis (1995) 10 Cal.4th 463, 518,

fn. 15.) “The word ‘willfully,’ when applied to the intent with which an act is done or

omitted, implies simply a purpose or willingness to commit the act, or make the omission

referred to. It does not require any intent to violate law, or to injure another, or to acquire

any advantage.” (§ 7, subd. (1).) A person acts willfully when he “ ‘ “ ‘knows what he is

doing, intends to do what he is doing and is a free agent.’ ” ’ ” (People v. Atkins (2001)

25 Cal.4th 76, 85.)

Applying these authorities to the present case, to satisfy the element of willfulness

the evidence needed to show that defendant intended to harmfully or offensively touch

the officer. In other words, it needed to show that he intentionally struck the officer. It

did not need to show that he intended to injure the officer.

Here, the evidence showed that defendant was doing anything he could to avoid

being handcuffed and placed into the patrol car, including physically struggling with the

deputies. Inside the store, defendant put his fists up in a fighting stance towards Deputy

S., after which it took four men—two deputies and two loss prevention employees—

nearly two minutes to handcuff him. Defendant then refused to walk out of the store and

had to be dragged out by the deputies. When they got outside, he refused to get in the

patrol car. He used his body to push back and forth against the deputies. He planted his

feet on the ground, kicked against the car, and put his shoulder against the car to avoid

being placed inside. He then elbowed Deputy M. in the face hard enough to chip his

7 tooth. From this evidence, the jury could reasonably have concluded that elbowing

Deputy M. was one of the many intentional physical acts of struggle defendant engaged

in with the deputies to avoid being placed into the patrol car.

Defendant argues the evidence only showed he recklessly or accidentally struck

the deputy. (People v. Lara, supra, 44 Cal.App.4th at p. 107 [“ ‘Reckless conduct alone

does not constitute a sufficient basis for . . . battery. . . .’ ”].) This was one possible

interpretation of the evidence, but it was not the only one. (See People v. Castaneda

(2011) 51 Cal.4th 1292, 1325 [“defendant’s alternative inferences do not render

insufficient the substantial evidence of his commission” of the crime].) “[When] the

circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is

not warranted simply because the circumstances might also reasonably be reconciled with

a contrary finding. [Citation.]” (People v. Lindberg, supra, 45 Cal.4th at p. 27.)

Accordingly, we affirm the defendant’s conviction for battery with injury on a peace

officer.

III.

APPLICATION OF SECTION 654 TO COUNT 2

Defendant next contends his sentence for resisting Deputy M. (count 2) should be

stayed under section 654, rather than run concurrently, because it occurred during the

same course of conduct as the battery with injury on Deputy M. (count 1) and he only had

a single objective in committing both offenses—to resist the officer.

8 Defendant did not raise an objection under section 654 at the sentencing hearing,

but it is settled that questions involving the applicability of section 654 can be raised for

the first time on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.) Respondent does

not argue otherwise.

Section 654 precludes multiple punishment for a single act or omission, or an

indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) It provides

in relevant part: “An act or omission that is punishable in different ways by different

provisions of law shall be punished under the provision that provides for the longest

potential term of imprisonment, but in no case shall the act or omission be punished

under more than one provision.” (§ 654, subd. (a).) The purpose of the statute is to

ensure that punishment is commensurate with a defendant’s culpability. (People v. Perez

(1979) 23 Cal.3d 545, 552.)

To determine whether a course of conduct that violates more than one statute is

subject to section 654’s proscription on multiple punishment, the court must assess the

intent and objective of the actor. “ ‘If all of the offenses were incident to one objective,

the defendant may be punished for any one of such offenses but not for more than one.’ ”

(People v. Rodriguez (2009) 47 Cal.4th 501, 507.) “On the other hand, if the evidence

discloses that a defendant entertained multiple criminal objectives which were

independent of and not merely incidental to each other, he may be punished for the

independent violations committed in pursuit of each objective even though the violations

9 were parts of an otherwise indivisible course of conduct. [Citations.]” (People v. Perez,

supra, 23 Cal.3d at pp. 551-552, fn. omitted.)

“ ‘The defendant’s intent and objective are factual questions for the trial court; [to

permit multiple punishments,] there must be evidence to support a finding the defendant

formed a separate intent and objective for each offense for which he was sentenced.

[Citation.]’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.) “When a trial court

sentences a defendant to separate terms without making an express finding the defendant

entertained separate objectives, the trial court is deemed to have made an implied finding

each offense had a separate objective. [Citation.]” (People v. Islas (2012) 210

Cal.App.4th 116, 129.)

The conduct at issue here—defendant’s resisting and elbowing of Deputy M.—

was part of a single course of conduct. Defendant began resisting the deputies inside the

store and did not stop until they were able to forcibly place him in the patrol car. It was

during the course of defendant’s struggle with the deputies at the patrol car that he

elbowed Deputy M. in the face. We agree with defendant that there was not evidence in

the record to show his objective in elbowing the deputy was for any purpose other than to

avoid being arrested and placed into the patrol car.

People v. Martin (2005) 133 Cal.App.4th 776, 780, presents a similar factual

scenario. In Martin, the defendant struggled with four officers while he was being

arrested. One officer attempted to restrain the defendant and was injured when the

defendant wrapped his legs around the officer’s leg and jerked his body backward.

10 (Ibid.) Another officer then knocked the defendant to the ground, where he flailed

around and kicked at the officers who were trying to control his lower body. It took all

four officers to restrain him. (Ibid.) Like the present case, the defendant in Martin was

convicted and sentenced concurrently for battery with injury on a peace officer (§ 243,

subd. (c)(2)) and resisting an executive officer (§ 69). (Martin, at p. 779.) On appeal, he

argued that section 654 prohibited punishment on both offenses because his sole

objective in committing the offenses was to escape. (Martin, at p. 780.) The court

agreed, stating, “[t]he battery upon the officer does not appear to have been intentional,

but merely the result of appellant’s physical gyrations aimed at freeing himself. The two

offenses occurred, if not concurrently, in close temporal proximity, which although not

determinative on the question of whether there was a single objective, is a relevant

consideration. [Citation.] Hence, we conclude that section 654 applies . . . .” (Id. at

p. 781.)2

Like Martin, the record here shows defendant committed the battery during the

course of resisting the officers. While the evidence was sufficient to show defendant

willfully elbowed Deputy M. (as addressed ante), it did not show that he did so for any

objective other than to resist the arrest.

Respondent contends defendant had separate intents for the offenses: to prevent

the deputies from arresting him and to cause injury to Deputy M. As evidence of this,

2 The Martin court went on to affirm the defendant’s sentence based on the multiple victim exception to section 654, which does not apply here because Deputy M. was the named victim in both counts at issue. (People v. Martin, supra, 133 Cal.App.4th at pp. 782-783.) 11 respondent contends defendant’s act of elbowing the deputy was not essential to the

commission of the resisting offense but was a gratuitous, independent act of violence for

which the court properly imposed a concurrent sentence.

We disagree. Section 69, of which defendant was convicted in count 2, penalizes

a 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.” (§ 69, subd. (a).) The statute is designed to protect law enforcement officers

against violent interference with the performance of their duties. (People v. Martin,

supra, 133 Cal.App.4th at p. 782.) Defendant’s conduct in elbowing Deputy M. was not

a gratuitous, independent act of violence; it was an element of the offense. It was both a

battery on the officer and a means defendant used to resist the officer. (See People v.

Rodriguez (2015) 235 Cal.App.4th 1000, 1006 [section 654 applies where a defendant

commits one crime as the means of perpetrating another crime].)

In sum, to permit multiple punishment under section 654, there must be evidence

to support the court’s finding that the defendant formed a separate intent and objective for

each offense for which he was sentenced. (People v. Coleman, supra, 48 Cal.3d at

p. 162.) Here, no evidence was presented to support the trial court’s implied finding that

defendant intended to injure Deputy M. separate and apart from his resisting arrest.

Accordingly, we conclude that the trial court erred imposing count 2 concurrently, rather

than staying the execution of the sentence under section 654. (People v. Jones (2012) 54

12 Cal.4th 350, 353 [section 654’s proscription on multiple punishment includes the

imposition of concurrent sentences].) We therefore modify the judgment to stay the

execution of count 2 pursuant to section 654.

VI.

ABSTRACT OF JUDGMENT

Finally, we note that the abstract of judgment does not correctly reflect the

sentence imposed by the trial court and order it corrected. (People v. Mitchell (2001) 26

Cal.4th 181, 186-187 [an appellate court may order correction of clerical errors in the

abstract of judgment on its own motion].)

The abstract of judgment incorrectly reflects that the court imposed the low term

of three years on counts 1 through 3, when it should reflect the court imposed the upper

term of three years on those counts. It also does not reflect that the one-year sentence

imposed in the probation violation case was a one-third consecutive term. Finally, it

incorrectly reflects that the conviction in the present case was based on a plea, not a jury

trial. Accordingly, we order the abstract of judgment be corrected to properly reflect the

sentence imposed by the trial court and to reflect that the present case involved a jury

trial.

13 V.

DISPOSITION

The judgment is modified to stay the execution of the sentence imposed on count 2

pursuant to section 654. The trial court is directed to amend the abstract of judgment to

reflect the judgment as modified, to correct the errors identified in section IV of the

discussion, and to forward a certified copy of the amended/corrected abstract of judgment

to the Department of Corrections and Rehabilitation. As so modified, the judgment is

affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ P. J.

We concur:

CODRINGTON J.

RAPHAEL J.