People v. Minjarez CA4/2

Opinion

Filed 9/29/21 P. v. Minjarez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E075587

v. (Super.Ct.No. INF1901616)

MICHAEL OSCAR MINJAREZ, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. James S. Hawkins, Judge.

(Retired judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to

art. VI, § 6 of the Cal. Const.) Affirmed.

James M. Kehoe, under appointment by the Court of Appeal, for Defendant and

Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Britton B.

Lacy, Deputy Attorneys General, for Plaintiff and Respondent.

1 I. INTRODUCTION

A jury found defendant and appellant Michael Oscar Minjarez guilty as charged of

attempting to deter, or resisting, by force or violence, an executive officer in the

performance of the officer’s duty. (Pen. Code, § 69.)1 The trial court found that

defendant had two prior strike convictions (§ 667, subds. (c), (e)(1)), and sentenced him

to four years in state prison (the middle term of 2 years, doubled, based on 1 of the prior

strike convictions).

In this appeal, defendant raises two claims of prejudicial trial error:

(1) insufficient evidence supports the knowledge element of his conviction for violating

section 69—that is, he claims insufficient evidence shows he knew that the officers he

attempted to deter, or resisted, were police officers; and (2) a video taken by the body

camera of one of the officers who did not testify, Sergeant C., was erroneously admitted

because it was not authenticated. We conclude that substantial evidence supports the

knowledge element of defendant’s conviction for violating section 69, and that any error

in admitting Sergeant C.’s body-camera video was harmless. Thus, we affirm the

judgment.

II. BACKGROUND

On September 11, 2019, P.D. was attending a family gathering at his daughter’s

house in Desert Hot Springs. Around 7:30 p.m., P.D. was in the garage of the house,

fixing his daughter’s car in the presence of other house guests, including several of his

1 Unspecified statutory references are to the Penal Code.

2 family members and friends, when defendant came running into the garage toward P.D.’s

wife and younger children. Neither P.D. nor any of the other people in the garage had

seen defendant before.

P.D.’s wife and children began screaming, and P.D. rushed over and stood in front

of them so they would not be hurt. P.D. and another house guest, G.R., tried to hold

defendant back. After P.D. and G.R. told him to leave, defendant became physically

aggressive. He charged at P.D. and G.R. and was “throwing punches” at them. A third

guest tried to help P.D. and G.R. stop defendant. P.D.’s son-in-law called 911.

For around 20 minutes before police arrived, P.D., G.R., and the third guest fended

off defendant, and defendant was repeatedly asked to leave; but he would not leave, and

he continued to be aggressive. P.D. and G.R. thought defendant might have been under

the influence of drugs. P.D. saw that defendant was sweating profusely and “was not all

there.” Defendant did not say a word during his entire encounter with P.D., G.R., and the

other guests, and he did not seem to be listening to anyone. But, he also did not seem to

have trouble maintaining his balance.

P.D. and G.R. further testified that defendant would not listen to the police officers

after they arrived. Defendant refused the officers’ commands to get out of the garage.

P.D. also testified that, after the officers told defendant to “put his hands back,” defendant

stepped out of the garage, went toward the officers, and began “throwing punches” at the

officers. The officers tried but were unable to calm defendant down, and the officers

“had to call for backup.”

3 City of Desert Hot Springs Police Officer P. was the first officer to respond to the

scene. Officer P. arrived in a black and white Ford Explorer with the “Desert Hot

Springs Police” insignia on both sides of his vehicle. Officer P. did not turn on his

vehicle’s emergency lights or siren, but he turned on the vehicle’s floodlights and parked

the vehicle close to the home. It was dark outside and there were no street lights, but the

garage was lighted.

Officer P. did not announce himself as law enforcement, but he was wearing his

police uniform. His police badge and name were on the front of his shirt; he was also

wearing police badges on both of his shoulders; and he was visibly carrying a service

pistol, a taser, pepper spray, a baton, and handcuffs on his belt. G.R. saw “right away”

that Officer P. was a police officer.

When he first arrived at the scene, Officer P. saw that defendant was “throwing his

arms up erratically and making weird gestures with his hands.” As he walked toward the

driveway, Officer P. heard someone say, “ ‘He doesn’t belong here. He’s trying to fight

people.’ ” Officer P. walked up to defendant and told him to “turn around” toward

Officer P. Because he did not know whether defendant was armed, Officer P. was trying

to get defendant away from the people in the garage. Defendant turned toward Officer P.

but began backing away. Next, Officer P. twice told defendant to get on the ground, but

defendant did not comply. Officer P. tried to “deescalate” the situation by urging

defendant to “chill out” and “relax.”

Another officer, Sergeant C., arrived around one minute after Officer P. arrived

and assisted Officer P. Defendant “swatt[ed]” at Officer P.’s hands and tried to punch

4 both Officer P. and Sergeant C. Officer P. twice tried to tase defendant, after warning

defendant that he would be tased; but the taser did not work, and defendant continued to

struggle with the officers. Officer P. struck defendant on his torso and used “knee

strikes” to get defendant on the ground.

Both Officer P. and Sergeant C. were wearing body cameras, which audio- and

video-recorded their encounter with defendant, but Officer P’s camera fell off when they

took “[defendant] to the ground” by a car in the street in front of the house. Defendant

can be heard on Officer P.’s body-camera recording, saying, among other things, “I see

this shit”; “You guys are . . . doing this on purpose”; “Fuck you, bitch”; “I see you”;

“You’re gonna make me look like I’m crazy, fool”; “There’s a conspiracy here, fool”;

“I’m not playing, fool. Shoot me”; “I’m not crazy, I’m not crazy”; “You’re gonna make

me . . . twist my finger”; “You’re acting like I’m crazy . . . get the fuck off me . . . I hear

you”; and “I see exactly what . . . you’re doing.” The same statements were captured on

Sergeant C.’s body-camera recording.

During his struggle with the officers, defendant was kicking his feet at the officers,

and he tried to grab Officer P.’s taser. After defendant was taken to the ground,

Officer P. again used his taser, and this time the taser worked. Meanwhile, two more

police officers arrived, and together the four officers were able to handcuff defendant.

Defendant was then placed in the back seat of a police car. There, he continued “yelling

and screaming,” and, after a time, he began kicking the car doors and banging his head

against the back seat divider. Around six or seven minutes elapsed from the time

5 Officer P. arrived until the time defendant was placed in the police car. Defendant never

referred to any of the officers as police officers.

According to Officer P., defendant’s behavior during the incident was consistent

with a person who was under the influence of a controlled substance, but it was also

consistent with a person who was “completely sober” but “just angry and frustrated.”

Defendant spoke in coherent sentences, and Officer P. was unable to determine whether

he was under the influence. Officer P. had several prior contacts with defendant and,

during those contacts, defendant was “pretty calm.” His conduct during the current

incident was “very different” than his conduct during the prior contacts.

III. DISCUSSION

A. Substantial Evidence Supports the Knowledge Element of Defendant’s Conviction for

Violating Section 69

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

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 such fine and imprisonment.”

Section 69 can be violated in two ways: (1) by attempting to deter or prevent an

executive officer from performing a duty imposed by law, and (2) by resisting, by force

or violence, an officer in the performance of his or her duty. (People v. Smith (2013)

57 Cal.4th 232, 240-241; In re Manuel G. (1997) 16 Cal.4th 805, 814.) Both ways of

6 violating section 69 require the defendant to know that the executive officer that the

defendant tried to deter or prevent, or resisted, is an executive officer. (People v. Atkins

(2019) 31 Cal.App.5th 963, 975-979.)

The jury here was instructed on both ways of violating section 69, including the

knowledge element. (CALCRIM No. 2651 (trying to prevent an executive officer from

performing duty) and No. 2652 (resisting an executive officer in performance of duty)

The jury was further instructed that a peace officer is an executive officer, that a sworn

member of the City of Desert Hot Springs Police Department is a peace officer, and that

the jury could not find defendant guilty of violating section 69 unless it unanimously

agreed on which way defendant violated the statute. The jury returned two guilty

verdicts, finding defendant guilty of both ways of violating section 69.

Defendant claims the record contains insufficient evidence to support the

knowledge element of each way of violating section 69. He claims “there was

insufficient credible evidence that [he] knew that the people he was attempting to deter or

prevent, or resisted, were police officers.” Thus, he claims his conviction for violating

section 69 must be reversed. We disagree.

In reviewing a claim that insufficient evidence supports a criminal conviction, our

task is to “ ‘ “ ‘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. Brooks (2017) 3 Cal.5th 1,

7 57.) “Substantial evidence includes circumstantial evidence and any reasonable inference

drawn from that evidence.” (In re Michael D. (2002) 100 Cal.App.4th 115, 126.)

In reviewing the record for substantial evidence, we “presume in support of the

judgment the existence of every fact the trier could reasonably deduce from the

evidence.” (People v. Houston (2012) 54 Cal.4th 1186, 1215.) Reversal “is unwarranted

unless it appears ‘that upon no hypothesis whatever is there sufficient substantial

evidence to support [the conviction].’ ” (People v. Bolin (1988) 18 Cal.4th 297, 331.)

Defendant claims the evidence shows he did not know that he was deterring or

resisting peace officers, given that witnesses described him as “sweating profusely,” as

“ ‘not all there,’ ” and as appearing to be under the influence of a controlled substance.

He argues his “bizarre behavior clearly indicated that he was unaware of what was going

on.” Indeed, when he was in the garage, he did not appear to be listening to anyone, and

his behavior during the entire incident did not make sense. Officer P. believed that “there

was something wrong with him.”

Notwithstanding the evidence that defendant was “out of it” and did not know

what was going on around him, substantial evidence shows that defendant could see, was

coherent and, therefore, knew that the people he attempted to deter and resist, beginning

with Officer P., were peace officers. Defendant was able to control his movements and

communicate coherently during his struggle with the officers, indicating that he knew

that the officers whose commands he refused and fought with were peace officers.

As the People point out, multiple visual indicators showed that Officer P. was a

City of Desert Hot Springs police officer. G.R., testified that “you knew right away” as

8 soon as Officer P. arrived, that Officer P. was a police officer. Although Officer P. did

not announce that he was a police officer, he was wearing a police officer’s uniform, and

he was driving a black and white police vehicle with the “Desert Hot Springs Police”

insignia on both sides. His Desert Hot Springs Police badge and his name were visible

on the front of his shirt; he was wearing Desert Hot Springs Police badges on his

shoulders; and he was visibly carrying a service pistol, a taser, pepper spray, and baton,

and handcuffs on his belt. Although it was dark outside, the garage was lighted, and

defendant turned toward Officer P. when Officer P. approached him near the garage and

told him to “turn around.” At this point, nothing was obstructing defendant’s view of

Officer P., and defendant began to back away from the officer almost as soon as he

turned toward the officer. This showed that defendant could see and, therefore, knew that

Officer P. was a police officer.

Substantial evidence also shows that defendant was coherent and knew what was

going on around him, including that he was attempting to deter, and was forcibly

resisting, peace officers. After he refused to comply with Officer P.’s commands to get

on the ground, and Sergeant C. arrived, defendant engaged in a struggle with Officer P.

and Sergeant C. Defendant first swatted at Officer P’s hands, then he tried to punch

Officer P. and Sergeant C., and he tried to grab Officer P.’s taser after the two other

officers arrived and joined the struggle. He was heard on Officer P.’s body-camera

video, saying things that showed he was coherent and knew that the officers he was

attempting to deter, and was forcibly resisting, were peace officers. Among other things,

he said, “This is a conspiracy,” “I’m not crazy,” “I see you,” and “I see exactly what . . .

9 you’re doing.” Moreover, defendant’s statement, “You’re gonna make me look like I’m

crazy, fool,” demonstrates that he not only knew that he was deterring and resisting peace

officers, but he knew the officers were recording him.

All of this evidence showed that defendant could see, was coherent and, therefore,

knew that the officers whom he was deterring and resisting were peace officers. Thus,

substantial evidence supports the knowledge element of defendant’s conviction for

violating section 69. (Cf. People v. Hendrix (2013) 214 Cal.App.4th 216, 221-222, 237,

248-253 [erroneous admission of other crimes evidence prejudicial to conviction for

knowingly resisting peace officer (§ 69), where evidence the defendant knew he was

resisting a peace officer was “not overwhelming” in part because the defendant was

pepper sprayed before he resisted, was intoxicated, and spoke “incoherent gibberish”].)

B. Any Error in Admitting Sergeant C.’s Body-camera Video Was Harmless

Sergeant C. was unable to testify at trial due to illness, and he was therefore not

available to authenticate the video of his encounter with defendant, which was taken by

his body camera. Officer P. had a family emergency after he testified, and he was also

not available to authenticate Sergeant C.’s body-camera video. Over defendant’s

objection, the court admitted Sergeant C.’s body- camera video into evidence, based on

the testimony of another City of Desert Hot Springs Police Officer, Sergeant S., who was

not present during the incident.

Defendant claims that Sergeant C.’s body-camera video was erroneously admitted

because it was not sufficiently authenticated by Sergeant S.’s testimony or other

evidence. He specifically claims that Sergeant S.’s testimony did not show that Sergeant

10 C’s body-camera video was what it purported to be: a recording of Sergeant C.’s

September 11, 2019 encounter with defendant. (Evid. Code, §§ 1400, 1401.) We

conclude that any error in admitting Sergeant C.’s body-camera video was harmless.

Thus, we do not address the merits of defendant’s claim that Sergeant C.’s body-camera

video was erroneously admitted because it was not authenticated.

Under the Evidence Code, a writing is required to be authenticated before it may

be received in evidence (Evid. Code, § 1401), and writings include photographs and

video recordings (Evid. Code, § 250; People v. Goldsmith (2014) 59 Cal.4th 258, 266).

“Authentication of a writing means (a) the introduction of evidence sufficient to sustain a

finding that it is the writing that the proponent of the evidence claims it is or (b) the

establishment of such facts by any other means provided by law.” (Evid. Code, § 1400.)

“A photograph or video recording is typically authenticated by showing it is a fair and

accurate representation of the scene depicted.” (People v. Goldsmith, at p. 267.)

If a writing, including a photograph video recording, is erroneously admitted due

to a failure to demonstrate its authenticity, we must determine whether it is reasonably

probable that the defendant would have realized a more favorable result had the writing

been excluded. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Beckley

(2010) 185 Cal.App.4th 509, 517.) Here, it is not reasonably probable that defendant

would have realized a more favorable result, including acquittal of the section 69 charge,

had the court not admitted Sergeant C.’s body-camera video.

The testimony of P.D., G.R., and Officer P. showed beyond a reasonable doubt

that defendant violated section 69 by (1) attempting to deter or prevent Officer P. and the

11 other officers in the performance of their lawful duties, and by (2) resisting, by force or

violence, Officer P. and the other officers, knowing that the officers were peace officers.

P.D. and G.R. witnessed defendant’s interactions with Officer P. and the other officers.

Their testimony, together with Officer P.’s testimony and body-camera video,

overwhelmingly showed that defendant would not obey the officers’ commands, tried to

punch Officer P. and Sergeant C., and kicked his feet as he struggled with the officers.

To be sure, Sergeant C.’s body-camera video was slightly longer than Officer P.’s

body-camera video and showed additional details of defendant’s actions from

Sergeant C.’s perspective. But all of defendant’s acts of deterrence and resistance, and

his knowledge that the people whom he was deterring and resisting were police officers,

were overwhelmingly shown by other evidence. Thus, it is not reasonably probable that

defendant would have realized a more favorable result, including acquittal of the section

69 charge or conviction of the lesser offense of violating section 148, had Sergeant C.’s

body-camera video been excluded.

12 IV. DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS J. We concur:

RAMIREZ P. J.

McKINSTER J.