Filed 6/9/21 P. v. Rines CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E074123
v. (Super.Ct.No. SWF1907079)
STEPHEN WILLIAM RINES, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Mark A. Mandio, Judge.
Affirmed.
Stephanie M. Adraktas, under appointment by the Court of Appeal, for Defendant
and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief
Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos,
Kathryn Kirschbaum and Joy Utomi, Deputy Attorneys General, for Plaintiff and
Respondent.
1 Defendant and appellant Stephen William Rines was convicted on three counts of 1 resisting an executive officer by force or violence in violation of Penal Code section 69.
Rines contends that these convictions must be reversed for four reasons: (1) the verdict
was the product of coercion because the trial court required the jury to continue
deliberating even after it was “hopelessly deadlocked”; (2) the trial court gave conflicting
and incorrect supplemental instructions on the force element of the offense; (3) defense
counsel provided prejudicially ineffective assistance of counsel by stipulating to a
supplemental instruction defining “force”; and (4) the trial court failed to instruct the jury
on simple assault as a lesser included offense.
We affirm the judgment. We find no error in the trial court’s management of the
jury or in its supplemental instructions, and Rines has not demonstrated ineffective
assistance of counsel. The jury should have been instructed on simple assault as a lesser
included offense, but on the facts here, the error was harmless.
I. BACKGROUND
On February 8, 2019, Rines was an inmate at a Riverside jail. That morning,
correctional officers conducted random cell searches for contraband. After Rines’s cell
was searched, he had a heated conversation with correctional officers that escalated to a 2 physical altercation, resulting in minor injuries to Rines and two officers. According to
1 Undesignated statutory references are to the Penal Code. 2 One officer had a bruise and scratches on his arm. Another had three three-inch scratches on his neck. Rines had a bump or abrasion on his forehead, as well as bruising,
2 the testimony of five officers, Rines physically resisted their efforts to handcuff him.
Rines, testifying in his defense, conceded that he had been upset with how the search of
his cell had been conducted but denied that he resisted the officers. The defense argued
that Rines did not resist or use force against the officers and that, to the extent he may
have struggled, it was only a reflexive, defensive effort to protect himself from the
officers’ unreasonable and excessive use of force. The jail’s security system recorded
video (without audio) of the incident, which was played for the jury.
The jury found Rines guilty on the three charged counts of resisting an executive
officer by force in violation of section 69, one for each of three of the correctional
officers involved. On the prosecution’s motion, the trial court dismissed alleged prison
prior enhancements of those charges. The court sentenced Rines to two years in prison,
through concurrent terms on each of the three counts.
II. DISCUSSION
A. Jury Coercion
1. Additional Background
In a discussion with counsel before voir dire, the trial court indicated it intended to
estimate for prospective jurors that the trial would last through Thursday of the next
week, based on the calculation that evidence and argument would likely be completed by
mainly to his head and face. He also stated that he had been “punched in the gut” and that he experienced pain from a pre-existing back condition that causes “severe nerve pain,” and that was exacerbated by the actions of the officers. He further testified that he became dizzy and lost consciousness, at least momentarily, during the altercation. Rines was hospitalized for about four hours before he was medically cleared and returned to jail.
3 the next Tuesday, plus two full days for deliberations. The court noted that “I tell them
they can deliberate as long as they want, but for me to figure out how much time it’s
going to take, that’s what I do.”
The parties’ closing arguments were held on the next Tuesday, as anticipated, after
which the jury deliberated for about three hours before adjourning for the day. On
Wednesday morning, after about 45 minutes of deliberations, the jury submitted a
question to the court, asking for clarification of the definition of the term “force.” After
consulting with counsel by telephone, the court responded by referring the jury to its
instructions, and specifically the portion of CALCRIM No. 200 that states: “Words and
phrases not specifically defined in these instructions are to be applied using their
ordinary, everyday meanings.”
A short time later, the jurors sent another note, stating that it was unable to reach a
unanimous verdict. After consulting with the parties, the jurors were brought into court,
and the foreperson clarified that they had deadlocked on all three counts. The court told
the jury that its usual practice was to give some additional instructions and ask them to
resume deliberations. The court further stated: “I wouldn’t be asking you to deliberate
for a million years, but try a couple different approaches[....] I know you put a ton of
effort into it, but I generally would ask you to do that.” The court then instructed the jury 3 with a modified version of CALCRIM No. 3551.
3 The trial court’s instruction as given—essentially CALCRIM No. 3551 with some additional commentary—was as follows:
4 After giving the additional instruction, the court asked the foreperson whether he
thought that “any of that may help.” The foreperson responded negatively, stating that
the jury had already done what the additional instruction suggested, and stating that the
court’s earlier response to the jury’s question about the definition of “force” had not been
helpful. The court asked the other jurors whether they agreed with the foreperson’s
assessment; all except one did. The court then asked how the jury was split. The
foreperson responded that after a first vote, they had been split eight to four in favor of
“[S]ometimes juries that have had difficulty reaching a verdict are able to resume deliberations and successfully reach a verdict on one or more counts. Please consider the following suggestions. “Do not hesitate to reexamine your own views. Fair and effective jury deliberations require a frank and forthright exchange of views. “Each of you must decide the case for yourself and form . . . your individual opinion after you have fully and completely considered all of the evidence with your fellow jurors. It is your duty as jurors to deliberate with the goal of reaching a verdict if you can. Do so without surrendering your individual judgment. Do not change your position just because it differs from that of other jurors or just because you or others want to reach a verdict. Both the People and the Defendant are entitled to the individual judgment of each juror. “It is up to you to decide how to conduct your deliberations. You may want to consider new approaches in order to get a fresh perspective. “So a couple examples. You might want to consider like role playing or something—I like the idea of kind of being the devil’s advocate. So a person who took one position has to argue the other way around, right, understanding that that wasn’t your position. And then somebody else, who had another position, the opposite position, argues the opposite of what they voted for. “Okay. Just a little side note. Growing up, my father was a lawyer, and he would sit around the kitchen table, and he was constantly be[ing] the devil’s advocate. It drove us nuts, but he’d argue these positions just because we took the opposite point of view. But he was trying to teach us something. Sometimes you get some [insight] by doing that. “Also, let me know whether I can do anything to help you further, such as give additional instructions or clarifying instructions I have already given you. One caveat about that, I can tell you what the law is. I can’t help you determine what the facts are. That is up to you guys.”
5 guilt, and after a second vote they were now split nine to three in favor of guilt. The
foreperson noted that, although they “were able to change one vote . . . the three that are
not changing have stated that nothing is going to change that position. And the opposite
way of the nine, nothing is going to change that position.” The court then sent the jury
out so that the court could confer with counsel.
After consulting with counsel, and after the jury returned, the trial court noted the
jury’s question about the word “force,” and inquired whether additional argument on
“just that issue of force . . . might be helpful in breaking the deadlock.” The foreperson 4 stated that such argument would be helpful, and the rest of the jury concurred.
Out of the presence of the jury, the prosecution and the defense stipulated to the
court instructing the jury with a particular dictionary definition of the word “force.” That
afternoon, the trial court gave the instruction defining “force,” the parties made their
arguments, and the jury retired to deliberate further.
After more than an hour of additional deliberations, the jury sent a note with three
additional questions, including one directly related to the force element of the charged
offenses. The court answered those questions, albeit over an objection from the defense
4 The record does not reflect the exact results of the “[s]how of hands” that the court requested on the issue, but we infer that the vote was in favor of additional argument.
6 5 on the answer related to the force element. After the court provided its answers, the jury
foreperson indicated that the earlier, dictionary definition of the term “force” that had
been given as a supplemental instruction had been a focus of disagreement among the 6 jurors. The trial court responded that it hoped that the “additional instruction will clear
that up.”
By this time, it was late in the day, but there remained some time for the jury to
deliberate. In sending the jury to resume deliberating, the trial court referred to its
pretrial estimate of how long the trial would take, confirming that the pretrial estimate
was that the “end” would be the next day, Thursday. The court noted that it would be
sending a printed copy of the newest supplemental instruction back to the jury room, and
it indicated that the jury could “discuss [its] finishing time with the deputy.” Less than
15 minutes later, however, the jury returned its verdict.
5 We discuss both of the court’s supplemental instructions related to the force element of the offense in detail below, addressing Rines’s contention that they were erroneous. 6 In full, the foreperson commented: “Your Honor, we don’t have a problem with level of force. That maybe shouldn’t have been put in there. It was the definition you gave us in type that stated that force must be directed against a person or a thing in order to be considered force, and that’s where the question really results. But you gave us that explanation. But the one you gave us in definition did not match—it kind of contradicts it a little bit.”
7 2. Analysis
Rines argues that the trial court’s directions that the jury continue deliberations
after they reported a deadlock coerced the verdict in violation of his federal and state
constitutional rights. We are not persuaded.
“Section 1140 provides in relevant part that a ‘jury cannot be discharged’ without
having rendered a verdict unless, ‘at the expiration of such time as the court may deem
proper, it satisfactorily appears that there is no reasonable probability that the jury can
agree.’” (People v. Brooks (2017) 3 Cal.5th 1, 88.) “‘The decision whether to declare a
hung jury or to order further deliberations rests in the trial court’s sound discretion.’”
(Ibid., quoting People v. Debose (2014) 59 Cal.3th 177, 209.) “However, a court must
exercise its power under section 1140 without coercing the jury, and ‘avoid displacing the
jury’s independent judgment “in favor of considerations of compromise and
expediency.”’” (People v. Brooks, supra, 3 Cal. 5th at p. 88.) In considering whether a
jury was unduly “‘pressured into reaching a verdict,’” we must look at the trial court’s
actions in context and consider all the “‘particular circumstances of the case.’” (Ibid.)
Here, after about four hours of deliberations—not an extraordinarily long time—
the jury informed the trial court that it had reached an impasse. The jurors indicated that
the difficulty in reaching a unanimous verdict was related to a particular element of the
charged offenses. Although a general instruction on breaking through a deadlock did not
seem helpful, the jurors believed that additional argument on their sticking point might
be helpful. After the argument and more deliberations, the jury submitted further
8 clarifying questions, but it did not again declare itself to be at an impasse. The jury
received answers to its questions, and soon thereafter reached a unanimous verdict on
each of the charged offenses. We find nothing coercive about this series of events.
Rines argues that the trial court unduly pressured jurors by inquiring about their
numerical division, including about what side was in the minority. He proposes that “the
judge’s decision to send [the jury] back to the jury room in hope of obtaining a
unanimous verdict operated as a signal that the jurors who voted not guilty should
reevaluate and change their views.” We disagree. Our Supreme Court has “expressly
approved of inquiring into a jury’s numerical division in the event of a deadlock.”
(People v. Debose (2014) 59 Cal.4th 177, 210.) The trial court did not suggest that jurors
should reconsider their views in light of the numerical breakdown. It also did not
communicate any preference for movement one way or the other in resolving the
deadlock, nor did it chastise jurors for having failed to reach a unanimous verdict. To the
contrary, the trial court instructed that jurors were to “deliberate with the goal of reaching
a verdict if you can do so without surrendering your individual judgment. Do not change
your position just because it differs from that of other jurors or just because you or others
want to reach a verdict.” (Italics added.)
Rines also argues that the trial court’s reference to its pretrial estimate of how long
the trial would take “pressur[ed] the jurors to reach agreement by reminding them that the
time allocated for the trial would soon expire.” The trial court, however, apparently
emphasized to jurors that its estimate was no more than that, an estimate made for its own
9 purposes, and that “they can deliberate as long as they want.” Also, the comment at issue
was made on Wednesday afternoon, and the pretrial estimate had been that the trial could
last through Thursday; the “end” was not that close. Moreover, the trial court had asked
the jury to “try a couple different approaches” and continue deliberating, but it
emphasized that it “wouldn’t be asking [them] to deliberate for a million years.” There
was no reason for the jury to feel unduly pressured in these circumstances.
Rines has not demonstrated that the trial court abused its discretion in managing
the jury. The record does not support his contention that the verdict should be viewed as
the product of coercion, rather than the considered judgment of each individual juror.
B. Supplemental Instructions on Force
To convict Rines of violating section 69, the prosecution had to prove, among
other things, that he resisted an executive officer “‘by the use of force or violence.’” (See
People v. Smith (2013) 57 Cal.4th 232, 241(Smith).) Our Supreme Court has noted that
“section 69 ‘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.’” (Id., supra, 57 Cal.4th at p. 240.) Each count against
Rines alleged that he violated section 69 in both ways. At trial, however, the prosecution
relied solely on the second way, and the jury was instructed accordingly with CALCRIM
10 No. 2652, which includes as the first element of the offense that the defendant
“unlawfully used force or violence to resist an executive officer.”
The term “force” is not separately defined in CALCRIM No. 2652 or the other
instructions initially given to the jury. As such, the jury was to apply the “ordinary,
everyday meaning[]” of the term, as instructed by CALCRIM No. 200. When the jury
first requested clarification of the definition of the term “force,” the trial court referred it
to CALCRIM No. 200.
Once the jury indicated that it wished to hear additional argument on the issue of
force, however, the parties agreed that the jury should be given a supplemental
instruction that provided a dictionary definition of the word: “Force is power or pressure
directed against a person or thing.” The parties then made their arguments as to whether
the force element of the offenses had been proven.
After further deliberations, the jury asked for further clarification: “If a person
moves away from an arresting officer while being restrained, is that level of force 7 directed against the arresting officer?” The trial court, over a defense objection,
responded: “This seems kind of like a mixed question to me. So I can answer what
appears to be the legal portion of it, but not the factual portion [....] So the law is this: A
violation of Penal Code section 69 need not involve any force or violence directed toward
the person of an executive officer. Rather, force used by a defendant in resisting an
7 The jury also asked whether it was “allowed to consider the lesser crime definition in relation to [Penal Code section] 69” and whether it was “okay to discuss the lesser crimes before reaching a unanimous decision on [Penal Code section] 69.”
11 officer’s attempt to restrain and arrest the defendant is sufficient to support a conviction.
Now, here is the thing, though. The question you asked me about is that level of force
directed against the arresting officer. I can’t make that determination. That’s a factual
determination. It’s something you have to decide.”
2. Analysis
Rines proposes various reasons why each of the supplemental instructions on force
were erroneous. “We review defendant’s claims of instructional error de novo.” (People
v. Johnson (2009) 180 Cal.App.4th 702, 707.) We find no error.8
Regarding the trial court’s first supplemental instruction, Rines argues that “the
court should not have instructed the jury at all as to a definition of force because that was
a factual issue for the jury to decide.” Rines is incorrect. Neither section 69, nor case
law interpreting that statute has adopted a “technical, legal meaning” of the term “that
differs from its nonlegal meaning.” (People v. Estrada (1995) 11 Cal.4th 568, 574.) This
just means, however, that as a matter of law the meaning of “force” as used in section 69
is the one “‘“commonly understood by those familiar with the English language.”’”
(Ibid.; see CALCRIM No. 200.) There is no authority in support of the notion that the
meaning of statutory language could somehow become a “factual issue for the jury to
decide,” as Rines proposes.
8 The People argue that Rines forfeited some of his instructional error arguments by failing to raise them in the trial court. We find it more expedient, however, to address Rines’s claims on the merits.
12 Generally, the trial court is not required to define common terms in jury
instructions, because there is no need. (See, e.g., People v. Chaffin (2009) 173
Cal.App.4th 1348, 1351.) Nevertheless, where a jury has expressed confusion about the
meaning of a common term, the trial court “must at least consider” whether an additional
explanation is appropriate, or whether “it should merely reiterate the instructions already
given.” (People v. Beardslee (1991) 53 Cal.3d 68, 97; see People v. Chaffin, supra, 173
Cal.App.4th at p. 1351 [trial court has no duty to give a clarifying instruction, absent a
request, if a term in an instruction has a plain and unambiguous meaning that is
“‘“commonly understood by those familiar with the English language”’”].) Here, the
jury repeatedly expressed confusion about the meaning of a term in its instructions, so it
was appropriate for the trial court to consider giving an additional explanation.
Furthermore, in both criminal and civil contexts, “‘[c]ourts frequently consult
dictionaries to determine the usual meaning of words.’” (People v. Leal (2004) 33
Cal.4th 999, 1009, quoting In re Marriage of Bonds (2000) 24 Cal.4th 1, 16.) Here, the
trial court did so, and the parties agreed that a particular dictionary definition was
appropriate as a supplemental instruction to address the jury’s confusion. On its face,
therefore, it was not unreasonable for the trial court to address the jury’s expressed
confusion about the meaning of the term “force” in the manner that it did.
Of course, words may have various meanings, some of which may be inapplicable
or confusing for one reason or another in a particular legal context. “Even if the court has
no sua sponte duty to instruct on a particular legal point, when it does choose to instruct,
13 it must do so correctly.” (People v. Castillo (1997) 16 Cal.4th 1009, 1015.) We turn,
then, to Rines’s contentions that the trial court here failed to do so.
His stipulation to the definition notwithstanding, Rines now contends that the
dictionary definition of force given to the jury was an inaccurate statement of the law in
several respects. First, without citation to case authority addressing section 69, he argues
that the definition “failed to convey to the jury that it should consider the defendant’s size
and physical condition against that of the purported victims in determining whether force
was used.” Nothing in law or logic, however, suggests that any disparity of size or
strength is relevant to whether the defendant used force to resist an executive officer.
Section 69 is “designed to protect police officers against violent interference with
performance of their duties.” (People v. Martin (2005) 133 Cal.App.4th 776, 782
(Martin).) The circumstance that an officer or group of officers may be capable of
physically overwhelming a defendant does not render the defendant’s use of force to
resist any less criminal.
As Rines emphasized at oral argument, he relies on People v. Mungia (1991) 234
Cal.App.3d 1703 (Mungia) and People v. Wright (1996) 52 Cal.App.4th 203 (Wright) for
the notion that the size of the people involved is relevant to the question of whether the
defendant used force. We find his reliance on those cases to be misplaced. Both Mungia
and Wright involved alleged robberies. (Mungia, 234 Cal.App.3d at p. 1707 [substantial
evidence challenge]; Wright, 52 Cal.App.4th at p. 209 [addressing whether assault is a
lesser included offense of robbery under accusatory pleading test].) In the context of a
14 robbery, when “actual force” is used, as opposed to only fear, “at the very least it must be
a quantum more than that which is needed merely to take the property from the person of
the victim,” or else the offense is a theft from the person of another rather than a robbery.
(Wright, 52 Cal.App.4th at p. 209; see Mungia, 234 Cal.App.3d at pp. 1707-1708.) It is
in considering whether that minimum quantum of actual force was used that the jury may
take into account the physical characteristics of the defendant and victim. (Wright, 52
Cal.App.4th at p. 209; Mungia, 234 Cal.App.3d at p. 1709.) We do not read either
Mungia or Wright to support the notion that a defendant’s or victim’s physical
characteristics are relevant to the underlying question of whether the defendant used force
at all.
Relatedly, Rines argues—again, without citation to relevant case authority—that it
was error for the instruction to allow for any amount of “‘pressure or power’ even a de
minimis amount,” to be considered “force.” In essence, Rines apparently proposes that
the jury should have been instructed that there is some quantum of pressure or power
applied, below which there can be no finding that “force” was used in the meaning of
section 69. There are circumstances where “force” has such a specialized, technical
meaning. (See, e.g., People v. Soto (2011) 51 Cal.4th 229, 242 [to prove lewd act on a
child under 14 by use of force in violation of section 288, subd. (b)(1), force used must be
“‘substantially different from or substantially greater than that necessary to accomplish
the lewd act itself’”].) But this is not one of them. As suggested by the statutory
language, the question for the jury is properly framed as whether the defendant charged
15 with violating section 69 used “force” at all—whether or not it also amounts to
“violence”—and, if so, whether the defendant did so to resist an executive officer. (See
§ 69 [applying to one who “knowingly resists, by the use of force or violence...”]; People
v. Bernal (2013) 222 Cal.App.4th 512, 519 (Bernal) [“force used by a defendant in
resisting an officer’s attempt to restrain and arrest the defendant is sufficient to support a
conviction”].) It is left for the jury to decide as a question of fact whether the defendant’s
actions are best viewed as an intentional exertion of force (of whatever amount) to resist
the executive officer, or if the defendant resisted without force (the lesser included
offense of misdemeanor resisting arrest (§ 148)), or if the defendant did not resist at all.9
There is no appropriate basis for an instruction limiting the definition of force in the
manner Rines now proposes. He therefore has demonstrated no error in the definition the
trial court used.
As to the trial court’s second supplemental instruction, Rines contends that the
jury should not have been advised that force “need not be used ‘toward the person of an
executive officer.’” He asserts that “the prosecutor was required to prove that the
9 We note that the jury was instructed, using CALCRIM No. 2671, that it could consider the amount of force the officers and Rines used against one another in the context of deciding whether the force the officers used was reasonable and, if not, whether any force Rines used to defend himself was reasonable. That instruction specifies that Rines could “lawfully” use reasonable force to defend himself against unreasonable use of force by the officers. Nothing in that instruction, or any other, foreclosed the jury from considering the disparity between the physical power of the officers and Rines in deciding the issue of reasonableness. And the defense in fact argued, and properly so, that the relative sizes and strengths of the officers and Rines should be considered in that context.
16 defendant used force or violence against three particular executive officers, one for each
count.” This assertion, however, is mistaken. As noted, the prosecution was required to
prove that Rines resisted each of the three executive officers, and that he used force or
violence to do so. (See § 69.) The direction in which he applied force is immaterial.
(Bernal, supra, 222 Cal.App.4th at p. 520 [“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”].)
To be sure, directly exerting force on the person of an executive officer constitutes
resisting by force. (See, e.g., Smith, supra, 57 Cal.4th at p. 237 [defendant punched
officer in the face].) Nevertheless, “a violation of section 69 need not involve any force
or violence directed toward the person of an executive officer.” (Bernal, supra, 222
Cal.App.4th at p. 519.) In Bernal, the defendant forcibly resisted by running away from
an officer who was holding on to his waist, and by swinging his hips from side to side in
an attempt to wriggle out of the officer’s grasp. (Id. at p. 520 [such “forceful resistance”
“amply supported” conviction under section 69].) In People v. Carrasco (2008) 163
Cal.App.4th 978, the Court of Appeal upheld the section 69 convictions of a defendant
under similar circumstances. The defendant, who was on a bicycle, had been grabbed
around the waist by a police officer. (Id. at p. 982.) He tried to ride away—exerting
force away from the officer—but was tackled to the ground. (Ibid.) He then continued to
resist arrest by squirming, kicking, and holding his hands beneath his body to prevent
handcuffing, but without directing force at any of several officers attempting to restrain
17 him. (Ibid.; see Bernal, supra, 222 Cal.App.4th at p. 519 [discussing Carrasco, noting
that the defendant’s conduct “did not involve any force directed at any of the arresting
officers”].) The trial court’s supplemental instruction was, therefore, a correct statement
of the law.
The reasoning of Martin, supra, 133 Cal.App.4th at p. 776 is particularly
instructive, although it is not controlling authority on our exact issue. In that case, the
defendant had been convicted of, among other things, one count of battery with injury on
a peace officer (§243, subd. (c)(2)) and one count of violating resisting an executive
officer by force (§ 69). (Martin, 133 Cal.App.4th at p. 779.) At issue was whether the
“multiple-victim exception” applied, so that the lesser of those offenses did not need to
be stayed pursuant to section 654. (Id. at p. 782.) There was evidence that the defendant
physically battered one of four officers attempting to arrest him, and that he had kicked at
the legs of two others. (Id. at p. 780.) He did not, apparently, direct any force at the
person of the fourth officer. (Ibid.) Nevertheless, the Court of Appeal found that the
defendant had committed a crime of violence—section 69—against four victims:
“appellant committed acts of violence against more than one victim; he resisted arrest by
four different officers and battered one of them.” (Martin, at p. 783.) In our case,
similarly, there was evidence that Rines used force to resist arrest by at least five different
officers, though he was charged with resisting only three of them. Those convictions
required evidence only that Rines used force to resist each of the officers, not that he
directed force at any or all of them.
18 Because Rines has demonstrated no error in the jury’s instructions, we need not
address the parties’ arguments regarding prejudice.
C. Ineffective Assistance of Counsel
Rines asserts that his trial counsel provided constitutionally ineffective assistance
of counsel by stipulating to the trial court’s first supplemental instruction on the issue of
force, rather than objecting to it. Not so. “Defense counsel does not render ineffective
assistance by declining to raise meritless objections.” (People v. Ochoa (2011) 191
Cal.App.4th 664, 674, fn. 8.) We have found no error in the instruction. It necessarily
follows that defense counsel was not ineffective by failing to object to it.
D. Simple Assault as a Necessarily Included Lesser Offense
The trial court did not instruct the jury on simple assault (§ 240) as a lesser 10 included offense of section 69. Rines argues that it had a sua sponte duty to do so, and
that the error requires reversal of his convictions. Without quite expressly conceding that
the trial court erred, the People contend only that Rines suffered no prejudice. We find
that the trial court should have instructed the jury on simple assault, but that the error was
harmless.
The trial court has a sua sponte duty to instruct the jury on all lesser offenses that
are necessarily included in the charged offense if the evidence reasonably could support a
10 It correctly instructed on section 148, subdivision (a), as a lesser included offense of section 69. (See Smith, supra, 57 Cal.4th at p. 243 [section 148, subd. (a) is a necessarily included lesser offense of section 69 where defendant was alleged to have forcibly resisted an officer].)
19 finding that the defendant committed only the lesser offense. (Smith, supra, 57 Cal.4th at
pp. 240, 244.) A lesser offense is necessarily included in a greater offense “if either the
statutory elements of the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108,
117.) Where, as here, a defendant is charged with multiple ways of violating a statute,
the trial court must sua sponte instruct on a lesser offense that is necessarily included in
any one of those ways. (Smith, supra, 57 Cal.4th at p. 244.)
Assault, defined in section 240 as “an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another,” is not a necessarily included
lesser offense of section 69 under the statutory elements test. (See People v. Brown
(2016) 245 Cal.App.4th 140, 152 (Brown) [so holding, and noting that a person “can
violate section 69 . . . without necessarily attempting to apply physical force.”].) It
follows that the prosecution could have chosen to file an accusatory pleading alleging the
defendant violated section 69 only in a manner that would not constitute an assault. (See
Smith, supra, 57 Cal.4th at p. 244 [“The prosecution may, of course, choose to file an
accusatory pleading that does not allege the commission of a greater offense in a way that
necessarily subsumes a lesser offense”].) Here, however, the prosecution did not do so.
The information against Rines alleged that, as to three different officers, he “did
knowingly resist by the use of force and violence said executive officer in the
performance of their duty.” (Italics added.) As we discuss above, it is possible to violate
20 the statutory language of section 69, referring to the use of force or violence to resist,
without attempting to use force or violence against the person of another. But a
defendant who has used “force and violence” to resist an executive officer has necessarily
committed assault. (Brown, supra, 245 Cal.App.4th at p. 153.) Section 240 is therefore a
necessarily included lesser offense of section 69 as that offense is alleged in the
accusatory pleading of this case, though differently framed allegations could have yielded
a different conclusion.
Further, we will assume for present purposes that the evidence could reasonably
have supported a jury finding that Rines was guilty only of violating section 240, and not
section 69. This would consist of a finding that an officer was not acting within the scope
of his duties, for example because of his excessive use of force, but also that Rines’s use
of force in response was excessive or otherwise unjustified. (See Brown, supra, 245
Cal.App.4th at p. 154; see also People v. Castain (1981) 122 Cal.App.3d 138, 145 [“even
if the officer is not acting within the scope of his duties because of his use of excessive
force, the defendant may still be guilty of simple battery if he responds with excessive
force”].) Our question, then, is whether there was any prejudice that flowed from the trial
court’s failure to instruct on simple assault.
In noncapital cases prejudice from the failure to instruct on a lesser included
offense is analyzed under the California harmless error standard of People v. Watson
(1956) 46 Cal.2d 818, 836. (See People v. Breverman (1998) 19 Cal.4th 142, 178.)
Under that standard, reversal is required “only if, ‘after an examination of the entire
21 cause, including the evidence’ [citation], it appears ‘reasonably probable’ the defendant
would have obtained a more favorable outcome had the error not occurred.” (Ibid.) In
this context, probability “‘“does not mean more likely than not, but merely a reasonable
chance, more than an abstract possibility.”’” (People v. Campbell (2015) 233
Cal.App.4th 148, 165.) In making this determination, we consider the entire record,
including the relative strengths and weaknesses of the evidence supporting the greater
and lesser offenses, the jury “instructions as a whole, the jury’s findings, and the closing
arguments” of the parties. (People v. Larsen (2012) 205 Cal.App.4th 810, 831.)
Applying these standards, we find that the trial court’s error was harmless. Rines
testified, and his counsel argued, that he did not intentionally attempt to use force
(excessive or otherwise) against any of the officers. Assault, as defined in section 240,
requires an intentional act. (People v. Malik (2017) 16 Cal.App.5th 587, 598.) This
aspect of the defense’s case is not dispositive of our issue, since the jury may interpret the
evidence as it sees fit, independent of the parties. (See Brown, supra, 245 Cal.App.4th at
p. 153-154 [cautioning that jury need not make binary choice between defense’s and
prosecution’s version of events].) Nevertheless, that the defense did not make the
argument, even in the alternative, tends to support the conclusion that the result would
not likely have been different if the trial court had instructed on simple assault. (See
People v. Larsen, supra, 205 Cal.App.4th at p. 831.)
Additionally, the jury’s various questions, discussed in detail above, strongly
suggest that the jury was grappling with whether Rines’s conduct amounted to the use of
22 force at all, not whether he might have used excessive force. Moreover, at least arguably,
the jury’s focus on whether Rines used force—and the speed with which it reached a
verdict, once it resolved that issue to its satisfaction—suggests that it had concluded the
officers’ actions did not involve excessive force, or were otherwise outside their lawful
duties. (See People v. Sibrian (2016) 3 Cal.App.5th 127, 138-139 [jury’s question asking
for clarification of force element of section 69 and “‘“willfully resisted”’” element of
section 148 “suggests the jury had determined the officers acted lawfully and were
grappling with whether defendant’s conduct amounted to use of force”].) In such a
circumstance, the jury could not reasonably have found Rines violated only section 240,
but not section 69.
Having reviewed the entire record, we are not persuaded that there is a reasonable
chance the jury’s verdict would have been different had it been instructed on simple
assault as a lesser included offense of section 69. (See People v. Larsen, supra, 205
Cal.App.4th at p. 831 [“‘The question is not what a jury could have done, but what a jury
would likely have done if properly instructed.’”].) Rines therefore suffered no prejudice
from the trial court’s instructional error.
23 III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL J.
We concur:
MILLER Acting P. J.
SLOUGH J.