Filed 8/1/23 P. v. Sandoval CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E079090
v. (Super.Ct.No. FVI21002847)
JOSE MIGUEL SANDOVAL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kawika Smith,
Judge. Affirmed.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
1 A jury convicted Jose Miguel Sandoval of one count of felony resisting arrest by
force or violence. (Pen. Code, § 69, subd. (a).) On appeal, Sandoval argues that the trial
court prejudicially erred by (1) overruling his objections to the prosecution’s exercise of
two peremptory challenges and (2) not instructing the jury about a law enforcement
officer’s duty under Penal Code section 841 to inform an arrestee of the reason for the
arrest. Sandoval also contends that there is insufficient evidence to support the
conviction and that the trial court abused its discretion by not reducing his conviction to a
misdemeanor and by not striking a prior strike. We reject the arguments and affirm.
BACKGROUND
In October 2021, Sandoval lived with his girlfriend, Leslie S. One morning, both
Sandoval’s mother and Leslie called law enforcement. Leslie could not find her keys.
Sandoval denied taking them but acted aggressively toward her, not letting Leslie leave
the house or go to work. Sandoval told law enforcement officers that he did not have the
keys, so nothing happened to him. Sandoval’s mother and Leslie left the residence.
Later that day, Leslie called 911 and reported that Sandoval had stolen her truck.
The next day, Leslie learned that Sandoval was at his mother’s house. Leslie called law
enforcement to report Sandoval’s location. Sheriff’s deputies Kevin Russell and Joseph
Mora were dispatched to the location. When the deputies arrived, they saw Sandoval
standing near Leslie’s truck in the driveway in front of the house. Russell recognized
Sandoval from the day before. Russell and Mora confirmed that the truck’s license plate
number matched that of the truck reported stolen.
2 Russell testified that the deputies approached Sandoval with the intent to detain
him. Mora testified that when the deputies initially contacted Sandoval, it was to arrest
him. Mora stated that the deputies had probable cause to arrest Sandoval for possessing a
stolen vehicle.
The deputies described Sandoval as being “irate,” “upset,” “very agitated,” “very
offensive,” and “borderline aggressive.” Sandoval’s German Shepherd dog was running
around outside. Sandoval questioned why Russell and Mora were there. Russell wore a
belt with a video camera that recorded the incident. The recording was played for the
jury.
Sandoval was holding some random “objects,” including a license plate, papers, a
plastic container, and two to four hypodermic needles. The deputies were concerned that
the needles and the license place could be used as weapons and threatened their safety.
Mora twice told Russell to put his “stuff down.” Sandoval did not comply.
Sandoval asked if he was being arrested, and Mora answered, “Yes, you’re under arrest.”
Mora next told Sandoval to relax. Sandoval repeatedly said, “no,” and Mora repeated
that Sandoval needed to relax. Sandoval responded, “You wanna go there. You gonna
come, [inaudible] do, I don’t know how you guys wanna end this or start this.”
Mora testified that he did not tell Sandoval why he was under arrest immediately
because of Sandoval’s “demeanor,” “body language,” and “irrational, bizarre behavior.”
Mora explained that officer safety was the priority under the circumstances.
The deputies repeatedly instructed Sandoval to put down the objects he was
holding. Sandoval refused. Mora told Sandoval that he needed to allow the deputies to
3 handcuff him, and Sandoval refused. Mora told Sandoval that the deputies needed to
detain him to ensure the safety of Sandoval and the deputies. The deputies repeatedly
told Sandoval that they would talk to him and explain everything after he was detained.
Russell told Sandoval to “turn around” and asked Sandoval if there was anything
the deputies could do “to make [Sandoval] put [his] hands behind [his] back” to allow the
deputies to detain him. Sandoval did not comply. Sandoval looked over his shoulder
while stepping backward. Mora thought Sandoval was preparing to flee.
Russell approached Sandoval and attempted to grab Sandoval’s arm. Sandoval
screamed for Russell to get off his foot. Sandoval pulled away from Russell. Russell
slapped the items that out of Sandoval’s hand, causing the items to fall to the ground.
Russell reached out with both of his hands in an attempt to secure Sandoval’s right arm.
Before Russell could grab Sandoval’s arm, Sandoval attempted to elbow Russell in the
face. Russell ducked out of the way and grabbed Sandoval’s torso. Both men fell to the
ground. Russell wanted Sandoval on the ground because Russell believed that it would
be easier to gain control of Sandoval on the ground.
Russell was on top of Sandoval, who was on his back. Russell tried to secure
Sandoval’s hands, but Sandoval flailed his hands and attempted to strike Russell.
Sandoval twice struck Russell in the face or chest with his fist. Russell repeatedly told
Sandoval to stop resisting, but Sandoval did not comply. Russell struck Sandoval twice
on the face with an open hand. Russell pushed Sandoval onto his stomach and straddled
Sandoval’s back. Russell attempted to grab Sandoval’s hands, but Sandoval put his
4 hands underneath his chest and stomach. Russell did not know whether Sandoval had
any weapons.
Mora then told Russell to move and sprayed Sandoval’s forehead with pepper
spray. Mora wanted to prevent Russell from being injured further. Russell had abrasions
on his hands and elbows and was bleeding. Sandoval did not comply after being pepper
sprayed. Russell ordered Sandoval to put his hands behind his back, but Sandoval
refused. Sandoval’s mother approached and repeatedly told Sandoval to listen, as the
deputies repeatedly told Sandoval to put his hands behind his back and to stop resisting.
Mora warned Sandoval: “Put your hands behind your back or you’re gonna get
tased.” Sandoval’s mother again told him to listen. Sandoval stopped resisting.
Throughout the physical confrontation between Sandoval and Russell, Sandoval
kept calling Russell “Bitch.” Sandoval also repeatedly called out his dog’s name.
Sandoval testified that he did not know why the deputies were arresting him. He
was confused about why the deputies were at the house. Sandoval denied swinging his
elbow at Russell and denied swinging at or trying to strike Russell. When Sandoval was
on the ground with Russell on top of him, Sandoval flailed his arms back and forth to
block Russell from hitting him in the head and the back.
Sandoval acknowledged that he knew he was being detained and did not comply
with the deputies’ orders. Sandoval had planned to comply with the deputy’s orders so
long as Russell complied with Sandoval’s demands. Sandoval did not believe the needles
could be used as weapons.
5 DISCUSSION
A. Jury Selection
Sandoval argues that reversal is required because the prosecutor’s use of
peremptory strikes excusing one Hispanic juror and one African American juror during
jury selection violated Batson v. Kentucky (1986) 476 U.S. 79 (Batson), People v.
Wheeler (1978) 22 Cal.3d 258 (Wheeler), and Code of Civil Procedure section 231.7
(unlabeled statutory references are to this code) because the prosecutor excused the jurors
based on their race. We are not persuaded.
1. Governing Law
“The prosecution’s use of peremptory challenges to remove prospective jurors
based on group bias, such as race or ethnicity, violates a defendant’s right to trial by a
jury drawn from a representative cross-section of the community under article I, section
16 of the California Constitution and his right to equal protection under the Fourteenth
Amendment to the United States Constitution.” (People v. Blacksher (2011) 52 Cal.4th
769, 801; Batson, supra, 476 U.S. at p. 97; Wheeler, supra, 22 Cal.3d at pp. 276-277.)
Section 231.7 now codifies that principle and provides that “[a] party shall not use a
peremptory challenge to remove a prospective juror on the basis of the prospective
juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or the perceived membership of the prospective juror in any of those
groups.” (§ 231.7, subd. (a) (§ 231.7(a)).) The statute provides that “[a] motion brought
under this section shall also be deemed a sufficient presentation of claims asserting the
6 discriminatory exclusion of jurors in violation of the United States and California
Constitutions.” (§ 231.7, subd. (d)(1).)
For criminal jury trials after January 1, 2022, section 231.7 sets forth the
procedure that a trial court must follow when a party objects to the improper use of a
peremptory challenge under section 231.7(a). (§ 231.7, subds. (c), (d), (i), (k).) When an
objection to the use of a peremptory challenge as violating section 231.7(a) has been
made, “the party exercising the peremptory challenge shall state the reasons the
peremptory challenge has been exercised.” (Id., subd. (c).) The trial “court shall
evaluate the reasons given to justify the peremptory challenge in light of the totality of
the circumstances. The court shall consider only the reasons actually given and shall not
speculate on, or assume the existence of, other possible justifications for the use of the
peremptory challenge. If the court determines there is a substantial likelihood that an
objectively reasonable person would view race, ethnicity, gender, gender identity, sexual
orientation, national origin, or religious affiliation, or perceived membership in any of
those groups, as a factor in the use of the peremptory challenge, then the objection shall
be sustained.” (§ 231.7, subd. (d)(1).) Subdivision (d)(3) of section 231.7 provides a
nonexhaustive list of circumstances the court may consider. (Id., subd. (d)(3)(A)-(G).)
“For purposes of this section, an objectively reasonable person is aware that unconscious
bias, in addition to purposeful discrimination, have resulted in the unfair exclusion of
potential jurors in the State of California.” (Id., subd. (d)(2)(A).) “[A] ‘substantial
likelihood’ means more than a mere possibility but less than a standard of more likely
than not” (id., subd. (d)(2)(B)), and “‘unconscious bias’ includes implicit and institutional
7 biases” (id., subd. (d)(2)(C)). “The court shall explain the reasons for its ruling on the
record.” (§ 231.7, subd. (d)(1).)
Subdivision (g)(1) of section 231.7 (section 231.7(g)(1)) describes three “reasons
for peremptory challenges” that “have historically been associated with improper
discrimination in jury selection”: “The prospective juror exhibited either a lack of
rapport or problematic attitude, body language, or demeanor,” “[t]he prospective juror
was inattentive, or starting or failing to make eye contact,” and “[t]he prospective juror
provided unintelligent or confused answers.” (Id., subd. (g)(1)(A)-(C).) Those three
reasons “are presumptively invalid unless the trial court is able to confirm that the
asserted behavior occurred, based on the court’s own observations or the observations of
counsel for the objecting party. Even with that confirmation, the counsel offering the
reason shall explain why the asserted demeanor, behavior, or manner in which the
prospective juror answered questions matters to the case to be tried.” (§ 231.7,
subd. (g)(2) (§ 231.7(g)(2)).)
We review de novo the overruling of an objection made under section 231.7, “with
the trial court’s express factual findings reviewed for substantial evidence.” (§ 231.7,
subd. (j).) We do “not impute to the trial court any findings, including findings of a
prospective juror’s demeanor, that the trial court did not expressly state on the record.”
(Ibid.) We consider only those reasons actually given by the trial court and do “not
speculate as to or consider reasons that were not given to explain either the party’s use of
the peremptory challenge or the party’s failure to challenge similarly situated jurors who
are not members of the same cognizable group as the challenged juror, regardless of
8 whether the moving party made a comparative analysis argument in the trial court.”
(Ibid.) If we conclude that the trial court erred by overruling an objection, “that error
shall be deemed prejudicial, the judgment shall be reversed, and the case remanded for a
new trial.” (Ibid.)
2. Prospective Juror No. 11
Prospective Juror No. 11 was an African American woman. She answered
questions from the prosecutor and defense counsel. The prosecutor used a peremptory
challenge to excuse Prospective Juror No. 11, which defense counsel objected to under
section 231.7.
The prosecutor stated that she was excusing Prospective Juror No. 11 for the
“neutral” reason of Prospective Juror No. 11’s “body language.” The prosecutor
explained: When the conversation was “getting political,” the prosecutor noticed that
Prospective Juror No. 11 “made body movements towards the other jurors.” For
example, when one of the other jurors was expressing his opinion about what had
happened with George Floyd, Prospective Juror No. 11 “leaned forward, turned her head
and looked at him and gave him this, essentially dirty look.” The prosecutor also noticed
that when other jurors were talking, Prospective Juror No. 11 would look at the other
jurors and “make[] faces pertaining to their comments. Her arms were crossed tight and
held close to her body.” In addition, the prosecutor said that she noticed that Prospective
Juror No. 11 had been commenting “under her breath” when other jurors were expressing
their opinions.
9 The prosecutor was concerned that Prospective Juror No. 11 would be unable “to
actively deliberate with the jury if it were to get to the point, when it gets to deliberation,
I’m concerned if her opinion differs, that she might make people feel uncomfortable
given the fact that she was giving people looks at certain answers and she was saying her
own comments under her breath while other people were talking. So I do have concerns
that [Prospective Juror No. 11] would not be able to cooperate with the rest of the jurors.”
Defense counsel pointed out that the prosecution’s stated reasons were among
those listed in section 231.7(g)(1) as being “associated with improper discrimination.”
Defense counsel argued that although the prosecutor stated that her reasons were neutral,
“the discussion was obviously not devoid of elements that implicate race in America”
because it involved the killing of George Floyd and the subsequent protests. Defense
counsel explained that given the topic, Prospective Juror No. 11’s reaction to other
juror’s comments was “connected to race.” For example, one of the other jurors said that
the protests occurred because George Floyd had been “accidentally killed” and that
seemed to “hit a nerve” for Prospective Juror No. 11. Defense counsel also noted that he
had not seen Prospective Juror No. 11 comment under her breath.
The court found that there did not appear to be “an apparent pattern in the
peremptories that [the prosecutor was] exercising that would indicate an explicit or
implicit bias” because the prosecution had exercised peremptory challenges to excuse one
Hispanic man, one white woman, and one African American man. The court further
found that the prosecutor’s stated reasons were “presumptively invalid” because they
were the types of behavior that “have historically been associated with improper
10 discrimination,” as indicated in section 231.7, subdivision (g)(1)(B). The court also
found that it had observed the behaviors indicated by the prosecutor.
The court overruled defense counsel’s objection to the prosecutor’s peremptory
challenge to Prospective Juror No. 11, reasoning: The prosecutor “has given a neutral
justification for her exercise of that peremptory, so the Court will find that there’s a
substantial likelihood that an objectively reasonable person would view or would not
view race or gender or any of the cognizable factors to be a factor in this case. [¶] It is
highly probable that the reasons for the challenge are unrelated to conscious or
unconscious bias and are instead specific to the juror and bear on the jury’s ability to be
fair and impartial in this case.”
Sandoval argues that the trial court erred by overruling defense counsel’s
objection to this peremptory challenge, because nothing in the prosecutor’s explanation
of how Prospective Juror No. 11’s behavior or demeanor mattered to the case addressed
“‘the manner in which the prospective juror answered questions,’” which Sandoval
contends section 231.7(g)(2) requires. We reject the argument because under the
circumstances section 231.7(g)(2) does not contain any such requirement.
Section 231.7(g)(2) requires the party exercising a peremptory challenge for a
presumptively invalid reason listed in section 231.7(g)(1) to “explain why the asserted
demeanor, behavior, or manner in which the prospective juror answered questions
matters to the case to be tried.” (§ 231.7(g)(2), italics added.) Section 231.7(g)(2)’s list
is disjunctive. A party exercising a peremptory challenge based on a presumptively
invalid reason listed in section 231.7(g)(1) must explain why either “the asserted
11 demeanor” or “the asserted . . . behavior” or “the asserted . . . manner in which the
prospective juror answered questions” “matter[ed] to the case to be tried.”
(§ 231.7(g)(2).) The explanation required under section 231.7(g)(2) is dependent on
which of section 231.7(g)(1)’s listed reasons was given for exercising the peremptory.
The prosecutor sought to excuse Prospective Juror No. 11 on the basis of the
juror’s body language (as listed in § 231.7, subd. (g)(1)(B)), so the prosecutor had to
explain only why the asserted “demeanor” or “behavior”—that is, Prospective Juror No.
11’s body language—“matter[ed] to the case to be tried.” (§ 231.7(g)(2).) Because the
prosecutor did not seek to excuse Prospective Juror No. 11 on the basis of the way she
answered any questions (as listed in § 231.7, subd. (g)(1)(C)), the prosecutor was not
required under section 231.7(g)(2) to explain why the manner in which Prospective Juror
No. 11 answered questions mattered.
Sandoval also argues that the prosecutor’s “alleged reasons were not sincere and
were pretextual” because “the prosecutor never questioned [Prospective Juror No. 11] in
regard to the claimed problematic demeanor.” The argument lacks merit. Section 231.7
does not contain any such requirement. Section 231.7(g)(2) establishes the procedures
that the trial court must employ when a peremptory challenge has been exercised for a
presumptively invalid reason listed in section 231.7(g)(1). Section 231.7(g)(2) does not
require counsel exercising the peremptory to demonstrate that counsel had questioned the
prospective juror about the asserted problematic behavior.
Sandoval also argues that the prosecutor’s explanation that Prospective Juror
No. 11 would make other jurors “‘uncomfortable’” “is not a valid reason for dismissing a
12 juror.” This argument too lacks merit. The trial court found under section 231.7,
subdivision (d)(1), that there was not a substantial likelihood that an objectively
reasonable person would view Prospective Juror No. 11’s race or gender as the reason the
prosecutor exercised the peremptory challenge. We independently review that
determination. (§ 231.7, subd. (j).) Because the prosecutor’s reasons were based entirely
on the prospective juror’s nonverbal behavior and demeanor, we defer to the trial court’s
finding confirming that Prospective Juror No. 11 engaged in the witnessed behavior.
(People v. Reynoso (2003) 31 Cal.4th 903, 926 (Reynoso).) Given those findings about
Prospective Juror No. 11’s conduct—that the prospective juror was making faces at other
jurors, giving dirty looks to other jurors, crossing her arms tightly, and commenting under
her breath when other jurors were answering questions—we independently agree with the
trial court that there was not a substantial likelihood (that is, “more than a mere
possibility but less than a standard of more likely than not” (§ 231.7, subd. (d)(2)(B)) the
prosecutor exercised the peremptory challenge to excuse Prospective Juror No. 11
because of her race.
Sandoval also contends that nothing about Prospective Juror No. 11’s “demeanor
showed an inability to cooperate with other jurors,” because Prospective Juror No. 11’s
body language merely demonstrated “a disagreement with the comments of other
prospective jurors.” The record reveals nothing about Prospective Juror No. 11’s
nonverbal demeanor. We defer to the trial court’s finding that Prospective Juror No. 11
had engaged in the behaviors witnessed by the prosecutor, which included that
Prospective Juror No. 11 was making “body movements towards the other jurors” and
13 giving other jurors “dirty look[s].” (Reynoso, supra, 31 Cal.4th at p. 926.) The described
hostile demeanor reasonably supports the prosecutor’s concern that Prospective Juror No.
11 may have been disruptive in deliberations when and if she disagreed with other jurors.
For these reasons, we conclude that the trial court did not err by overruling
Sandoval’s objection to the prosecution’s use of a peremptory challenge to excuse
Prospective Juror No. 11.
3. Prospective Juror No. 28
The prosecutor exercised another peremptory challenge to excuse Prospective
Juror No. 28, whom the prosecutor identified as an Hispanic or African American
woman. The prosecutor had previously unsuccessfully attempted to excuse Prospective
Juror No. 28 for cause. Defense counsel objected to the peremptory challenge.
The prosecutor stated that she was excusing Prospective Juror No. 28 because of
the juror’s body language, inattentiveness, and reluctance to answer questions. The
prosecutor explained that she believed Prospective Juror No. 28 had been inattentive
during jury selection because Prospective Juror No. 28 crossed her arms and looked
down, which also was the body language that concerned the prosecutor.
Defense counsel countered that he believed that Prospective Juror No. 28 had
engaged in a “rather thoughtful discussion.” Defense counsel also did not believe that
Prospective Juror No. 28 had been inattentive or that Prospective Juror No. 28 looked
away or crossed her arms “to the extent that she wasn’t engaged.” Defense counsel
believed that Prospective Juror No. 28 looked down because an “uncomfortable subject”
14 was being discussed. Defense counsel pointed out that section 231.7(g)(2) required the
prosecutor to explain why Prospective Juror No. 28’s behaviors mattered to the case.
The court asked the prosecutor to address the issue and to describe how
Prospective Juror No. 28’s behaviors mattered to the case. The prosecutor explained that
Prospective Juror No. 28’s inattentiveness, reluctance to speak, and body language would
impact “her serving as a juror given the fact that she may have disinterest in this case,
given the fact that she’s looking away, not making eye contact, looking down, having her
arms crossed. She wasn’t actively engaging in the voir dire, so I do have concerns as to
whether she would be able to listen to the testimony and whether she would be able to
deliberate with the other jurors when it gets to that time.”
Defense counsel countered that Prospective Juror No. 28 “was engaged in voir
dire, plainly.” Counsel believed the issue was “the extent to that which she was engaged
in her responses, which I believe are connected to her membership in her protected
class.”
The court found “that the behaviors exhibited by [Prospective Juror No. 28], the
Court did observe those as well as indicated by” the prosecutor. The court also found “by
clear and convincing evidence there’s not an—it’s highly probable that the reason given
for the challenge is unrelated to conscious or unconscious bias and are instead, bear on
the juror’s ability to be fair and impartial in the case. I don’t think that the motivations
for the exercise of that peremptory were based on bias for or against any cognizable
group, so that challenge, when it is exercised, is overruled.”
15 Sandoval argues that the prosecutor’s reasons for excusing Prospective Juror No.
28 “were pretextual” and “do not withstand scrutiny.” Sandoval first argues that none of
Prospective Juror No. 28’s “answers showed an inability to serve as an impartial juror”
and that Prospective Juror No. 28’s “demeanor in no way negatively impacted how the
prospective juror’s answers to the questions ‘matter[ed] to the case to be tried.’” We
reject the arguments for the same reason we rejected the argument made as to Prospective
Juror No. 11. The prosecutor did not excuse Prospective Juror No. 28 for the
presumptively invalid reason that she provided “unintelligent or confused answers”
(§ 231.7, subd. (g)(1)(C)), so the prosecutor was not required to rebut that invalidity
under section 231.7(g)(2) by explaining why the manner in which Prospective Juror No.
28 answered questions mattered to the case.
Sandoval also argues that the record does not support the prosecutor’s claim that
Prospective Juror No. 28 was not actively engaged during voir dire. He contends that the
record demonstrates that Prospective Juror No. 28 “thoughtfully answered” all of the
questions asked of her, which he contends shows that she “was attentive.” The argument
lacks merit. First, the trial court confirmed that Prospective Juror No. 28 had been
inattentive during voir dire. We defer to that finding because we cannot confirm the
prospective juror’s level of attentiveness. (Reynoso, supra, 31 Cal.4th at p. 926.)
Second, the fact that Prospective Juror No. 28 answered the questions put to her does not
undermine the trial court’s finding, because it does not demonstrate that she was
otherwise attentive throughout voir dire.
16 For the foregoing reasons, we conclude that the trial court did not err by
overruling Sandoval’s objection to the prosecutor’s use of a peremptory challenge to
excuse Prospective Juror No. 28.
B. Penal Code section 841
Sandoval makes two arguments concerning Penal Code section 841. First, he
argues that the deputies violated Penal Code section 841 by not telling Sandoval why he
was being arrested. He argues that the record therefore does not contain sufficient
evidence that the deputies were performing their lawful duty when Sandoval resisted, as
required to support a conviction under Penal Code section 69. Second, Sandoval argues
that the trial court committed prejudicial error by not instructing the jury sua sponte about
the legal requirements of Penal Code section 841. We reject both arguments.
1. Sufficiency of the Evidence
“In reviewing a sufficiency of the evidence claim, our role is limited. We review
the entire record to determine whether it discloses reasonable and credible evidence to
allow a rational trier of fact to determine guilt beyond a reasonable doubt. [Citation.]
We draw all reasonable inferences in favor of the judgment.” (People v. Cardenas
(2020) 53 Cal.App.5th 102, 119, fn. 11.)
Penal Code 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 fine,
imprisonment, or incarceration. (Pen. Code, § 69, subd. (a).) The court instructed the
17 jury that to convict Sandoval of violating Penal Code section 69 the prosecution had to
prove beyond a reasonable doubt that: (1) “The defendant unlawfully used force or
violence to resist an executive officer;” (2) “[w]hen the defendant acted, the officer was
performing his lawful duty;” (3) “[w]hen the defendant acted, the defendant knew that the
person he resisted was an executive officer;” and (4) “[w]hen the defendant acted, he
knew the executive officer was performing his duty.” (CALCRIM No. 2652.) The jury
was further instructed that “[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. 2652.) Another instruction
explained when an arrest or detention is unlawful and when force is unreasonable or
excessive. (CALCRIM Nos. 2652, 2670.)
Penal Code section 841 provides: “The person making the arrest must inform the
person to be arrested of the intention to arrest him, of the cause of the arrest, and the
authority to make it, except when the person making the arrest has reasonable cause to
believe that the person to be arrested is actually engaged in the commission of or an
attempt to commit an offense, or the person to be arrested is pursued immediately after its
commission, or after an escape. [¶] The person making the arrest must, on request of the
person he is arresting, inform the latter of the offense for which he is being arrested.”
When Mora told Sandoval that Sandoval was under arrest, the deputies had
reasonable cause to believe that Mora was actually engaged in committing the offense of
possessing a stolen vehicle in violation of Penal Code section 496d. Leslie had reported
that Sandoval stole her truck and that Sandoval was at his mother’s house. When the
18 deputies arrived at that house, they saw Sandoval and the truck in the driveway. Russell
recognized Sandoval from the day before, and the deputies verified that the truck was the
one Leslie had reported stolen. Because the evidence established that the deputies had
reason to believe that Sandoval was actively committing a crime, the deputies’ failure to
inform Sandoval why he was being arrested was excused. (Pen. Code, § 841; People v.
Hammond (1960) 54 Cal.2d 846, 854 [compliance with Pen. Code § 841 “was not
required as the defendant was then engaged in the commission of an offense, i.e., the
unlawful possession of a narcotic”].) We accordingly conclude that the record contains
substantial evidence that Russell and Mora were lawfully performing their duty when
Sandoval resisted, so the evidence was sufficient to support Sandoval’s conviction.
2. Jury Instruction
Sandoval argues that the trial court prejudicially erred by failing to instruct the
jury sua sponte on the requirements of Penal Code section 841. We disagree. Sandoval
is correct that a trial court has a sua sponte “duty to instruct as to defenses ‘“that the
defendant is relying on . . . , or if there is substantial evidence supportive of such a
defense and the defense is not inconsistent with the defendant’s theory of the case.”’”
(People v. San Nicholas (2004) 34 Cal.4th 614, 669; People v Saille (1991) 54 Cal.3d
1103, 1117 (Saille).) The People counter that an instruction on Penal Code section 841
would have been a pinpoint instruction, so the court had no duty to give it sua sponte.
(Saille, supra, at p. 1117.) We agree with the People.
Pinpoint “‘instructions relate particular facts to a legal issue in the case’” (People
v. Gutierrez (2009) 45 Cal.4th 789, 824) and are appropriate “when a defendant presents
19 evidence to attempt to negate or rebut the prosecution’s proof of an element of the
offense” (Saille, supra, 54 Cal.3d at p. 1117). Such instructions “‘are required to be
given upon request when there is evidence supportive of the theory, but they are not
required to be given sua sponte.’” (Gutierrez, supra, at p. 824.) Here, an instruction on
Penal Code section 841 would have related the facts of the deputies’ failure to tell
Sandoval why he was being arrested to the element requiring the officers to be
performing their lawful duty. It thus would have been a pinpoint instruction, so
Sandoval’s argument that the trial court was required to give the instruction sua sponte
lacks merit.
In any event, the record does not contain substantial evidence to warrant giving an
instruction on Penal Code section 841. There was no substantial evidence that Russell
and Mora violated Penal Code section 841 and thus were not performing their lawful
duty. There was no evidence that Russell and Mora did not have reasonable cause to
believe that Sandoval was actively engaged in the crime of possessing a stolen vehicle
when they approached Sandoval to arrest him. (Pen. Code, § 841.) As we have already
explained, there accordingly was no evidence that the deputies had to inform Sandoval
why he was being arrested. Given the lack of evidence that Penal Code section 841
obligated the deputies to tell Sandoval why he was being arrested, we conclude that the
trial court did not err by failing to instruct the jury about Penal Code section 841.
C. Sentencing Issues
Sandoval argues that the trial court abused its discretion by (1) denying his motion
to reduce his felony conviction to a misdemeanor under Penal Code section 17,
20 subdivision (b), and (2) denying his motion to strike a prior strike conviction under Penal
Code section 1385, subdivision (a), and People v. Superior Court (Romero) (1996) 13
Cal.4th 497 (Romero). The arguments lack merit.
1. Sentencing Hearing
After the parties rested, the court found true beyond a reasonable doubt the
following aggravating circumstances: (1) Sandoval had suffered numerous prior
convictions, (2) Sandoval served a prior prison term, (3) Sandoval was on parole when he
committed the offense, and (4) Sandoval’s performance while on parole was
unsatisfactory. Sandoval’s criminal history included the following felony convictions for
which Sandoval was sentenced to prison: (1) In 2016, he was convicted of assault with a
deadly weapon other than a firearm (Pen. Code, § 245, subd. (a)(1)) and of stealing a
vehicle (Veh. Code, § 10851); (2) in 2019, he was convicted of attempted false
imprisonment (Pen. Code, §§ 664, 236); and (3) in 2021, he was convicted of attempted
vandalism (Pen. Code, §§ 664, 594, subd. (b)(1)). The court found that the prosecution
had not proved beyond a reasonable doubt the allegation that Sandoval “engaged in
violent conduct that indicates a serious danger to society.” The court noted that
Sandoval’s behavior in committing the charged offense was violent, but the court did not
believe the violence rose to the level of being a serious danger to society.
Sandoval moved to reduce the felony to a misdemeanor under Penal Code section
17, subdivision (b), and to strike the prior strike conviction under Penal Code section
1385, subdivision (a), and Romero, supra, 13 Cal.4th 497. Sandoval argued that the
motions should be granted because he was only 25 years old when he committed the prior
21 strike offense and his “subsequent offenses have been decreasing in severity.” He also
argued that (1) he experienced childhood trauma from exposure to domestic violence
between his parents and his father’s alcohol abuse; (2) Sandoval suffered from mental
health issues, as documented in his jailhouse medical records; (3) he suffered from
substance abuse issues; (4) he did not initiate the contact with law enforcement; and (5)
commission of the charged offense was related to his mental health issues. A
biopsychosocial assessment of Sandoval prepared for defense counsel by a social worker
and Sandoval’s jailhouse medical records were attached as exhibits to the motion. The
People opposed the motions.
At sentencing, the court indicated that it had read and considered the probation
officer’s report and the parties’ sentencing briefs. After hearing argument, the court
denied both of Sandoval’s motions, reasoning that “because of the aggravating factors
that were found in this case that it would not be appropriate to strike the strike or to
reduce this to a misdemeanor.” The court indicated that it “believe[d] that there have
been mitigating factors as well contained in the sentencing memorandum submitted by
the defense.” The court acknowledged that Sandoval’s convictions were of decreasing
severity, but the court also “recognize[d] that there was a deputy that was injured during
the incident.” In addition, the court noted that although Sandoval did not initiate the
contact with the deputies, “Sandoval was not submitting to law enforcement orders” and
“had his own fate in his own hands and may have submitted to the directions of” the
deputy.
22 The trial court sentenced Sandoval to the middle term of two years, doubled to
four years because of the strike. The court found the low-term inappropriate because
Sandoval had received low-term sentences for his prior convictions.
2. Reduction to a Misdemeanor
When an offense is “punishable either by a term in state prison or by
imprisonment in county jail and/or by a fine,” such offenses—“commonly referred to as
‘wobbler[s]’”—are “in the discretion of the court, punishable as either a felony or a
misdemeanor.” (People v. Park (2013) 56 Cal.4th 782, 789; Pen. Code, § 17, subd. (b).)
Penal Code section 69 is punishable as a felony or a misdemeanor. (Pen. Code, §§ 69,
subd. (a), 1170, subd. (h).) The factors relevant to the court’s determination include “‘the
nature and circumstances of the offense, the defendant’s appreciation of and attitude
toward the offense, or [the defendant’s] traits of character as evidenced by [the
defendant’s] behavior and demeanor at the trial.’” (People v. Superior Court (Alvarez)
(1997) 14 Cal.4th 968, 978 (Alvarez).) The court also may consider the defendant’s
criminal history (id. at p. 979) and the general objectives of sentencing outlined in rule
4.410 of the California Rules of Court (Alvarez, supra, at p. 978), such as “[p]rotecting
society,” “[p]unishing the defendant,” and “[e]ncouraging the defendant to lead a law-
abiding life in the future and deterring him or her from future offenses” (Cal. Rules of
Court, rule 4.410(a)(1)-(3)). No single factor controls. (Alvarez, at p. 979.)
We review the trial court’s decision for abuse of discretion. (Alvarez, supra, 14
Cal.4th at p. 977.) The defendant carries the burden on appeal “‘to clearly show that the
sentencing decision was irrational or arbitrary.’” (Ibid.) Absent “‘such a showing, the
23 trial court is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review.’” (Id. at pp. 977-978.) We will not reverse the trial court’s decision “‘merely
because reasonable people might disagree.’” (Id. at p. 978.) An appellate court “‘“ is
neither authorized nor warranted in substituting its judgment for the judgment of the trial
judge.”’” (Ibid.)
We cannot say that the trial court’s decision was clearly irrational or arbitrary.
(Alvarez, supra, 14 Cal.4th at p. 977.) In denying Sandoval’s motion to reduce the
offense to a misdemeanor, the trial court considered Sandoval’s criminal history,
including multiple prior convictions and prison terms. The court recognized that
Sandoval’s convictions were of decreasing severity. The court also considered a felony
conviction justified by the fact that when Sandoval committed the offense, he was on
parole, which demonstrated that he did not perform satisfactorily on parole. Moreover,
the court found that Sandoval had caused one of the deputies to be injured and that the
incident could have been avoided had Sandoval complied with the deputies’ directions.
The court nevertheless acknowledged that there were mitigating circumstances in the
case, such as Sandoval’s mental health and substance abuse issues and his experience of
childhood trauma. The record thus reflects that the trial court gave due consideration to
the appropriate facts and circumstances. We see no basis to conclude that the court’s
ultimate decision was irrational or arbitrary.
Sandoval’s arguments to the contrary are unavailing. He contends that the trial
court abused its discretion because the following mitigating circumstances support
24 reducing the felony to a misdemeanor: (1) Sandoval “had done nothing wrong before he
was accosted by the two officers, who refused to tell him why he was being detained,” (2)
Sandoval’s prior convictions were not for increasingly serious crimes, (3) Sandoval
“‘grew up in a toxic environment’” and is mentally unstable, and (4) the deputy’s injuries
were minor. Sandoval also contends that punishment would be served by sentencing him
to incarceration in county jail. Sandoval rightly does not argue that the trial court erred
by failing to consider those factors. The trial court explicitly acknowledged that
mitigating circumstances were present, and the court rejected Sandoval claim that he had
done nothing wrong.
Sandoval’s list of mitigating factors does not demonstrate that the trial court’s
decision was an abuse of discretion but rather demonstrates that reasonable people might
disagree on the outcome. We cannot reverse the trial court’s decision on that basis, nor
can we substitute our judgment for the judgment of the trial court. (Alvarez, supra, 14
Cal.4th at p. 978.) It was not clearly irrational or arbitrary for the trial court to conclude
that the mitigating factors were outweighed by the nature and circumstances of the
offense (including the injury Sandoval caused), Sandoval’s criminal history, and the fact
that he was on parole when he committed the charged offense. (Id. at p. 977.) We
accordingly conclude that the trial court did not abuse its discretion by denying the
motion to reduce the felony to a misdemeanor.
3. Prior Strike
A trial court may, “in furtherance of justice,” strike a prior conviction under the
Three Strikes law. (Pen. Code, § 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-
25 530.) In considering whether to strike a prior strike conviction, the trial court “must
consider whether, in light of the nature and circumstances of his present felonies and
prior serious and/or violent felony convictions, and the particulars of his background,
character, and prospects, the defendant may be deemed outside the [Three Strikes law’s]
spirit, in whole or in part, and hence should be treated as though he had not previously
been convicted of one or more serious and/or violent felonies.” (People v. Williams
(1998) 17 Cal.4th 148, 161.) Only “extraordinary” circumstances warrant finding that a
defendant who is a career criminal “falls outside the spirit of the three strikes scheme.”
(People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony); People v. Philpot (2004) 122
Cal.App.4th 893, 907.)
We review the trial court’s decision for abuse of discretion. (Carmony, supra, 33
Cal.4th at p. 375.) It is the defendant’s burden on appeal to “‘“show that the sentencing
decision was irrational or arbitrary.”’” (Id. at p. 376.) Absent “‘“such a showing, the
trial court is presumed to have acted to achieve legitimate sentencing objectives, and its
discretionary determination to impose a particular sentence will not be set aside on
review.”’” (Id. at pp. 376-377.) In addition, we will not reverse a trial court’s sentencing
decision “‘“merely because reasonable people might disagree. ‘An appellate tribunal is
neither authorized nor warranted in substituting its judgment for the judgment of the trial
judge.’”’” (Id. at p. 377.) “Taken together, these precepts establish that a trial court does
not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Ibid.) Put another way, when the relevant factors
26 “manifestly support the striking of a prior conviction and no reasonable minds could
differ—the failure to strike would constitute an abuse of discretion.” (Id. at p. 378.)
For the same reasons that we found no abuse of discretion in the trial court’s
decision not to reduce the felony to a misdemeanor, we cannot say that the trial court’s
decision not to strike the prior strike conviction was “so irrational or arbitrary that no
reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) The trial
court denied the Romero motion for the same reasons that it denied the motion to reduce
the conviction to a misdemeanor. The court considered the nature of the offense—that it
involved violence, resulted in an injury to a law enforcement officer, could have been
avoided, and occurred while Sandoval was on parole—as well as Sandoval’s criminal
history and relevant particulars of Sandoval’s background and character. We cannot say
that the court’s ultimate balancing of all of those considerations amounted to an abuse of
discretion.
Sandoval’s arguments to the contrary are unavailing. He again contends that the
trial court abused its discretion because the same mitigating circumstances support
striking the prior strike. He does not argue that the trial court failed to consider those
factors. Sandoval in effect asks that we reweigh the factors the trial court considered in
denying the motion. In determining whether the trial court abused its discretion, we may
not substitute our judgment for that of the trial court. (Carmony, supra, 33 Cal.4th at
p. 377.) And the trial court does not abuse its discretion merely because reasonable
people might disagree about the outcome. (Ibid.) Sandoval has not carried his burden of
27 demonstrating that the trial court abused its discretion by not striking the prior strike.
(Id. at p. 376-377.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ J.
We concur:
CODRINGTON Acting P. J. RAPHAEL J.