People v. Williams
Opinion
BAMATTRE-MANOUKIAN, J.
*589*73A defendant violates Penal Code section 148, subdivision (a)(1)1 (hereafter section 148(a)(1) ) if he or she delays, obstructs, or resists a police officer who is engaged in the lawful performance of his or her duties. But when an officer uses excessive force in making an arrest or a detention, the officer is not engaged in the lawful performance of his or her duties.
The issue presented in this case is whether a defendant may be convicted of violating section 148(a)(1) if the officer uses excessive force after the completed offense of delaying, obstructing, or resisting an officer who is engaged in the lawful performance of his or her duties. We hold that if a defendant delays, obstructs, or resists an officer who is engaged in the lawful performance of his or her duties, the defendant may be convicted of violating section 148(a)(1) even if the officer uses excessive force subsequent to the completed violation.
In this case, defendant Andrew Kevin Williams was charged with delaying, obstructing, or resisting a police officer engaged in the lawful performance of his duties ( § 148(a)(1) ). During deliberations, the jury asked the following question: "If a peace officer is correctly conducting duties, [¶] If a 148(a)[ (1) ] violation occurs, [¶] If then, subsequent to the violation, excessive force is used, does this invalidate the 148(a)[ (1) ] violation?" The trial court responded "NO" and the jury later found defendant guilty.
Defendant appealed to the appellate division of the Santa Cruz County Superior Court, which reversed defendant's conviction in a two-to-one decision. The appellate division majority found that the trial court erred in responding "NO" when the jury asked whether a violation of section 148(a)(1) is "invalidate[d]" if an officer uses excessive force "subsequent to the violation." The dissenting judge would have found no instructional error. The appellate division then certified the case for transfer to this court, and we ordered the case transferred to us for hearing and decision. ( Cal. Rules of Court, rules 8.1002, 8.1008.)2
In this court, defendant reiterates his claim that the trial court erred by responding "NO" when the jury asked whether the use of excessive force "subsequent to" a violation of section 148(a)(1)"invalidate[s]" the violation.
*74We conclude that the trial court did not err in responding to the jury question. If a defendant delays, obstructs, or resists a police officer who is engaged in the lawful performance of his or her duties, the defendant may be convicted of violating section 148(a)(1) even if the officer uses excessive force subsequent to the completed violation.
Defendant also contends the trial court erroneously instructed the jury that he could be convicted of violating section 148(a)(1) if the jury found that he stepped in front of an officer who was writing a citation, because there was no evidence that defendant thereby delayed, obstructed, or resisted the officer. We conclude *590there was no instructional error. We will therefore affirm the judgment.
I. FACTUAL BACKGROUND
On January 19, 2016, at about 9:40 p.m., Santa Cruz Police Officer Jeffrey Brouillette was working with Field Training Officer Jeff Auldridge in downtown Santa Cruz. They saw a group of people on Pacific Avenue. One person, William Sanders, had a dog, which was a violation of the Municipal Code. A second person, Keenan Johnson, was smoking and playing amplified music, both of which were violations of the Municipal Code. Defendant, who was part of the group, was laying down on the sidewalk.
The officers intended to give a warning to Sanders, cite Johnson for the amplified music, and tell the rest of the group to "clear out." When the officers approached the group, Johnson and defendant indicated they were upset about the fact that Johnson was getting a ticket. Defendant called Officer Brouillette a "pig."
As Officer Brouillette began writing a citation to Johnson, a pedestrian tried to walk by. Officer Auldridge instructed the pedestrian not to walk in between Officer Brouillette and Johnson. The pedestrian complied but made a comment indicating he "wasn't happy about it." At that point, Officer David Gunter had arrived.
After the pedestrian passed by, defendant got up and stood in between Officer Brouillette and Johnson. Defendant smiled and then stared at the officer while keeping one hand in his coat pocket. Officer Brouillette became concerned for his safety. The officers asked defendant to sit down, but defendant remained in the same stance. The officers "directed" defendant to sit down, explaining that he was interfering with Officer Brouillette's ability *75to write the ticket. Defendant again ignored the officers. The officers then told defendant "that he was being detained and that he was going to be getting a ticket for lying on the sidewalk." Defendant remained standing.
The officers instructed defendant to sit down and gave defendant two warnings about being arrested for resisting, obstructing, or delaying an officer. Defendant ignored the officers. Officer Auldridge pushed defendant backwards, away from Officer Brouillette. Officer Auldridge told Officer Brouillette to arrest defendant. Officer Auldridge took hold of defendant's right arm while Officer Brouillette attempted to arrest defendant, who kept his left hand in his pocket when Officer Brouillette tried to put him into handcuffs.
After about a minute of trying to get defendant's left hand out of his pocket and into handcuffs, the officers decided they needed to "take him on the ground." The officers tried to do an "armbar takedown," but defendant "braced his stance." Officer Brouillette then grabbed the back of defendant's coat and pulled him down to the ground.
Although he was down on the ground, defendant still had his hand in his pocket, so the officers held his arms and legs in place while they waited for backup. Defendant rocked his body from side to side, "trying to break free." Officer Brouillette used his body weight to keep defendant on the ground, and Officer Auldridge used his thumb to put "a pressure point" behind defendant's jaw. When Officer Gunter saw defendant kicking, he went over and restrained defendant's legs. Meanwhile, other members of defendant's group were yelling at the officers.
Officer Brouillette still could not get defendant's hand out of the coat pocket, so Officer Auldridge twisted defendant's wrist. When that did not result in defendant's compliance, Officer Auldridge *591punched defendant in the face a few times as hard as he could, but not "very hard." The punching was not effective, however, so Officer Auldridge put his knee on defendant's face.
After a few minutes, more officers arrived, including Officer Matthew Montes and Sergeant William Clayton. The officers were able to pull defendant's hand out from his coat pocket and place defendant in handcuffs.
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BAMATTRE-MANOUKIAN, J.
*589*73A defendant violates Penal Code section 148, subdivision (a)(1)1 (hereafter section 148(a)(1) ) if he or she delays, obstructs, or resists a police officer who is engaged in the lawful performance of his or her duties. But when an officer uses excessive force in making an arrest or a detention, the officer is not engaged in the lawful performance of his or her duties.
The issue presented in this case is whether a defendant may be convicted of violating section 148(a)(1) if the officer uses excessive force after the completed offense of delaying, obstructing, or resisting an officer who is engaged in the lawful performance of his or her duties. We hold that if a defendant delays, obstructs, or resists an officer who is engaged in the lawful performance of his or her duties, the defendant may be convicted of violating section 148(a)(1) even if the officer uses excessive force subsequent to the completed violation.
In this case, defendant Andrew Kevin Williams was charged with delaying, obstructing, or resisting a police officer engaged in the lawful performance of his duties ( § 148(a)(1) ). During deliberations, the jury asked the following question: "If a peace officer is correctly conducting duties, [¶] If a 148(a)[ (1) ] violation occurs, [¶] If then, subsequent to the violation, excessive force is used, does this invalidate the 148(a)[ (1) ] violation?" The trial court responded "NO" and the jury later found defendant guilty.
Defendant appealed to the appellate division of the Santa Cruz County Superior Court, which reversed defendant's conviction in a two-to-one decision. The appellate division majority found that the trial court erred in responding "NO" when the jury asked whether a violation of section 148(a)(1) is "invalidate[d]" if an officer uses excessive force "subsequent to the violation." The dissenting judge would have found no instructional error. The appellate division then certified the case for transfer to this court, and we ordered the case transferred to us for hearing and decision. ( Cal. Rules of Court, rules 8.1002, 8.1008.)2
In this court, defendant reiterates his claim that the trial court erred by responding "NO" when the jury asked whether the use of excessive force "subsequent to" a violation of section 148(a)(1)"invalidate[s]" the violation.
*74We conclude that the trial court did not err in responding to the jury question. If a defendant delays, obstructs, or resists a police officer who is engaged in the lawful performance of his or her duties, the defendant may be convicted of violating section 148(a)(1) even if the officer uses excessive force subsequent to the completed violation.
Defendant also contends the trial court erroneously instructed the jury that he could be convicted of violating section 148(a)(1) if the jury found that he stepped in front of an officer who was writing a citation, because there was no evidence that defendant thereby delayed, obstructed, or resisted the officer. We conclude *590there was no instructional error. We will therefore affirm the judgment.
I. FACTUAL BACKGROUND
On January 19, 2016, at about 9:40 p.m., Santa Cruz Police Officer Jeffrey Brouillette was working with Field Training Officer Jeff Auldridge in downtown Santa Cruz. They saw a group of people on Pacific Avenue. One person, William Sanders, had a dog, which was a violation of the Municipal Code. A second person, Keenan Johnson, was smoking and playing amplified music, both of which were violations of the Municipal Code. Defendant, who was part of the group, was laying down on the sidewalk.
The officers intended to give a warning to Sanders, cite Johnson for the amplified music, and tell the rest of the group to "clear out." When the officers approached the group, Johnson and defendant indicated they were upset about the fact that Johnson was getting a ticket. Defendant called Officer Brouillette a "pig."
As Officer Brouillette began writing a citation to Johnson, a pedestrian tried to walk by. Officer Auldridge instructed the pedestrian not to walk in between Officer Brouillette and Johnson. The pedestrian complied but made a comment indicating he "wasn't happy about it." At that point, Officer David Gunter had arrived.
After the pedestrian passed by, defendant got up and stood in between Officer Brouillette and Johnson. Defendant smiled and then stared at the officer while keeping one hand in his coat pocket. Officer Brouillette became concerned for his safety. The officers asked defendant to sit down, but defendant remained in the same stance. The officers "directed" defendant to sit down, explaining that he was interfering with Officer Brouillette's ability *75to write the ticket. Defendant again ignored the officers. The officers then told defendant "that he was being detained and that he was going to be getting a ticket for lying on the sidewalk." Defendant remained standing.
The officers instructed defendant to sit down and gave defendant two warnings about being arrested for resisting, obstructing, or delaying an officer. Defendant ignored the officers. Officer Auldridge pushed defendant backwards, away from Officer Brouillette. Officer Auldridge told Officer Brouillette to arrest defendant. Officer Auldridge took hold of defendant's right arm while Officer Brouillette attempted to arrest defendant, who kept his left hand in his pocket when Officer Brouillette tried to put him into handcuffs.
After about a minute of trying to get defendant's left hand out of his pocket and into handcuffs, the officers decided they needed to "take him on the ground." The officers tried to do an "armbar takedown," but defendant "braced his stance." Officer Brouillette then grabbed the back of defendant's coat and pulled him down to the ground.
Although he was down on the ground, defendant still had his hand in his pocket, so the officers held his arms and legs in place while they waited for backup. Defendant rocked his body from side to side, "trying to break free." Officer Brouillette used his body weight to keep defendant on the ground, and Officer Auldridge used his thumb to put "a pressure point" behind defendant's jaw. When Officer Gunter saw defendant kicking, he went over and restrained defendant's legs. Meanwhile, other members of defendant's group were yelling at the officers.
Officer Brouillette still could not get defendant's hand out of the coat pocket, so Officer Auldridge twisted defendant's wrist. When that did not result in defendant's compliance, Officer Auldridge *591punched defendant in the face a few times as hard as he could, but not "very hard." The punching was not effective, however, so Officer Auldridge put his knee on defendant's face.
After a few minutes, more officers arrived, including Officer Matthew Montes and Sergeant William Clayton. The officers were able to pull defendant's hand out from his coat pocket and place defendant in handcuffs. The officers rolled defendant "up to a seating position." Officer Montes tried to pat search defendant and reach into defendant's coat pocket, but defendant-who was now standing-moved his body so that the officer could not do so.
The officers put defendant into a patrol car, but he "lowered his center of gravity" and leaned back. The officers made several attempts to put defendant *76into the patrol car, but realized they could not do so "safely without hurting him or hurting [the officers]." The officers were particularly concerned about defendant kicking them. They therefore decided to restrain defendant with shackles.
In order to place the shackles on defendant, the officers decided to "put him back on the ground." Defendant was "wiggling," and Officer Brouillette placed his knee on defendant's back to keep defendant from getting up. Defendant continued to move and kick, which made it difficult for the officers to put the shackles on.
The officers finally managed to place shackles on defendant's ankles but decided to also place him in a wrap to further restrain him. Defendant was transported to the hospital in order to "get him cleared" before taking him to jail. At the hospital, defendant started "to make a loogie," so the officers put a spit mask on him. Defendant was able to get the spit mask off, so the officers put another one on him. The officers tried to take defendant to jail, but the jail would not accept him in the wrap. The officers put shackles on defendant's feet and took defendant out of the wrap so the jail would accept him.
Officer Brouillette identified the ways in which he believed defendant delayed and obstructed the performance of his duties: (1) when defendant stood in between Officer Brouillette and Johnson; (2) when defendant refused to sit down, causing Officer Brouillette's attention to remain on defendant instead of on writing Johnson's citation; (3) when defendant again refused to sit down; (4) when defendant refused to sit down for a third time; (5) when defendant had to be arrested, further delaying the Johnson citation.
Officer Brouillette identified the ways in which he believed defendant resisted him: (1) the first three times defendant refused to pull his hand out of his coat pocket; (2) the next two times defendant refused to pull his hand out of his coat pocket, when he was on the ground; (3) when defendant refused to get into the patrol car; (4) when defendant resisted the shackles.
According to Officer Auldridge, the obstructing and delaying began when defendant got up and stood in front of Officer Brouillette, and "it never stopped." Officer Gunter likewise believed that defendant was resisting from the time of the initial verbal commands until the time he was placed in the wrap device. According to Officer Montes, defendant resisted, obstructed, and delayed him when he was attempting the pat search and at the hospital.
*77II. PROCEDURAL BACKGROUND
A. Charges
A second amended complaint alleged that defendant resisted, delayed, and obstructed "either" Officers Auldridge, *592Brouillette, Gunter, or Montes in violation of section 148(a)(1).3
B. Jury Instructions
1. Instruction on Section 148(a)
Pursuant to CALCRIM No. 2656, the jury was instructed: "The Defendant is charged with resisting, obstructing, or delaying a peace officer in the performance or attempted performance of his duties, in violation of Penal Code [section ]148[ (a)(1) ].
"To prove that the Defendant is guilty of this crime, the People must prove that, one, Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace officers lawfully performing or attempting to perform their duties as peace officers. [Two, t]he Defendant willfully resisted, obstructed, or delayed Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette in the performance or attempted performance of those duties. And three, when the Defendant acted, he knew or reasonably should have known, that Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace officers performing or attempting to perform their duties.
"If someone commits an act willfully, when he or she does it willingly or on purpose, it is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
"A person who is employed as a police officer by the Santa Cruz Police Department is a peace officer. A peace officer is not lawfully performing his or her duties, if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.
"Jury Instruction [2670], which follows, explain[s] when an arrest or detention is unlawful or when force is unreasonable or excessive. The People allege that the Defendant resisted, obstructed, or delayed Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette by doing the following.
*78"Jeffrey Brou[i]llette. Stepping in front of Brou[i]llette while he was writing a citation. Stiffening his body while being placed under arrest. Not removing his hand from his pocket while being placed under arrest. Stiffening his body while Brou[i]llette attempted to place him on the ground. Not responding to commands to stop resisting. Not responding to commands to give Brou[i]llette his hand. Stiffening and moving his body on the ground while being placed under arrest. Kicking his legs while on the ground while being placed under arrest. Making his body limp while attempting to be placed in the back of the patrol vehicle. Making his body stiff while attempting to be placed in the back of the patrol vehicle.
"Jeff Auldridge. Not responding to commands to sit down. Not responding to commands to move back. Stiffening his body while being placed under arrest. Stiffening his body while Auldridge attempted to place him on the ground. Not responding to commands to stop resisting. Stiffening and moving his body on the ground while being placed under arrest. Kicking his legs while on the ground, while being placed under arrest.
"Matthew Montes. Not responding to commands to spread his legs while attempting to be searched. Jumping up while attempting to be searched. Making his body limp while attempting to be placed in the back of the patrol vehicle. Making his body stiff while attempting to be placed in *593the back of the patrol vehicle. Preventing the spit mask from being placed on his head. Removing the spit mask from his head.
"You may not find the Defendant guilty unless you all agree that the People have proved that the Defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties, and you all agree on which act he committed. If a person intentionally goes limp, requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that person may have willfully resisted, obstructed, or delayed the officer, if all the other requirements are met."
2. Instruction on Lawful Performance
Pursuant to CALCRIM No. 2670, the jury was instructed: "The People have the burden of proving beyond a reasonable doubt that Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were lawfully performing their duties as peace officers. If the People have not met this burden, you must find the Defendant not guilty of his charged crime.
"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 *79force in his or her duties. A peace officer may legally detain someone if, one, specific facts known are apparent to the officer, leave him or her to suspect that the person could be detained, has been or is about to be involved in activity relating to crime, and two, a reasonable officer who knew the same facts would have the same suspicion.
"Any other detention is unlawful. In deciding whether the detention was lawful, consider evidence of the officer's training, and experience, and all the circumstances known by the officer when he or she detained the person. A peace officer may legally arrest someone if he or she has probable cause to make the arrest. Any other arrest is unlawful.
"Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution, that the person to be arrested has committed a crime. In deciding whether the arrest was lawful, consider evidence of the officer's training and experience, and all the circumstances known by the officer when he or she arrested the person.
"In order for an officer to lawfully arrest someone without a warrant for a misdemeanor or infraction, the [officer] must have probable cause to believe that the person to be arrested committed a misdemeanor [or] infraction in the officer's presence. Penal Code [section ]148(a)[ (1) ] is a misdemeanor.
"Special rules control the use of force. A peace officer may use reasonable force to arrest or detain someone, to prevent escape, to overcome resistance, or in self-defense. If a peace officer uses unreasonable and excessive force while arresting or attempting to arrest ... or detain[ing] or attempting to detain a person, that person may lawfully use reasonable force to defend himself or herself.
"A person being arrested uses reasonable force when he or she, one, uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force, and two, uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection."
3. Instruction on Unanimity
The jury was instructed on unanimity pursuant to CALCRIM No. 3500 as follows: "The Defendant is charged with Penal *594Code [section ]148, resisting, obstructing, or delaying a peace officer. The People have presented evidence of more than one act to prove that the Defendant committed this offense. You must not find the Defendant guilty unless you all agree that the People have *80proved that the Defendant committed at least one of these acts, and you all agree on which act he committed."
C. Trial
The defense did not put on any affirmative evidence.
During argument to the jury, the prosecutor asserted that "the reason we're here" was defendant's initial violation of section 148(a)(1), which occurred when he got in between Officer Brouillette and Johnson and then refused to move after being threatened with arrest. The prosecutor argued that defendant had been "delaying and obstructing" the officer, who was "lawfully" writing a citation. The prosecutor argued, "Right there, he's guilty of 148. You don't even have to go any further. He obstructed and delayed." The prosecutor also argued that defendant obstructed, delayed, and resisted the officers throughout the rest of the encounter.
Defendant's trial counsel argued that the officers used excessive force and thus were not lawfully attempting to execute their duties. She noted that defendant was being arrested for an infraction and argued that the officers' use of force became "disproportionate" when defendant was "punched, kneed on, poked, wrapped, bag over the head ...." She argued that even if the jury found that defendant "did one of the acts on this list," he should be found not guilty because the officers' actions were unlawful.
In closing argument, the prosecutor asserted that the officers only used force after defendant had committed "several violations" of section 148(a)(1) and that the force was not excessive "given the circumstances." The prosecutor suggested that the jury "break it down into events" and argued that there were "multiple avenues to find the defendant guilty."
D. Jury Question and Trial Court's Response
During deliberations, the jury submitted the following question: "If a peace officer is correctly conducting duties, [¶] If a 148(a)[ (1) ] violation occurs, [¶] If then, subsequent to the violation, excessive force is used, does this invalidate the 148(a)[ (1) ] violation?"
The parties discussed an appropriate response to the jury's question. The prosecutor argued that the officers' use of excessive force would not "negate any sort of resisting prior to the use of excessive force." He argued that the law did not permit an individual to "hit officers" and have that conduct "negate[d]" if the officers subsequently used excessive force.
*81Defendant's trial counsel argued that "any arrest made with excessive force is equally unlawful" even if the officers originally had probable cause to arrest the person.
Citing Yount v. City of Sacramento (2008)
E. Verdict and Sentence
The jury found defendant guilty of violating section 148(a)(1). The trial court suspended imposition of sentence and placed defendant on probation for 24 months, *595with an order that he spend four days in county jail, with credit for time served.
F. Appellate Division Proceedings
Defendant appealed to the appellate division of the Santa Cruz County Superior Court. Defendant argued that the trial court had responded to the jury's question incorrectly.
In a two-to-one decision, the appellate division reversed defendant's conviction. The majority cited People v. White (1980)
The dissenting judge would have found no instructional error. The dissent found language in Yount , supra ,
*82The appellate division certified the case for transfer to this court, and we ordered that the case be transferred to us for hearing and decision. ( Rules 8.1002, 8.1008.)
III. DISCUSSION
Defendant asserts that if a police officer uses excessive force during an "evolving event," such excessive force invalidates a violation of section 148(a)(1), even if the excessive force occurs subsequent to the defendant's completed act of resisting, obstructing, or delaying the officer. He contends the trial court erred by responding "NO" when the jury asked whether the use of excessive force "subsequent to" a violation of section 148(a)(1)"invalidate[s]" the violation.
Defendant also contends the trial court erroneously instructed the jury that he could be convicted of violating section 148(a)(1) if the jury found that he stepped in front of an officer who was writing a citation.
A. Standard of Review
The issues in this case are (1) whether the trial court correctly responded to the jury question about whether the use of excessive force "subsequent to" a violation of section 148(a)(1)"invalidate[s]" the violation and (2) whether the trial court properly instructed the jury on the acts that could constitute a violation of section 148(a)(1). Because both issues involve questions of law, we apply the independent or de novo standard of review. (See People v. Posey (2004)
B. Use of Excessive Force After a Violation of Section 148(a)
Section 148(a)(1) provides that a "person who willfully resists, delays, or obstructs any public officer, peace officer, or an *596emergency medical technician ... in the discharge or attempt to discharge any duty of his or her office or employment" is guilty of a misdemeanor.
Although not explicit in the statute, "[t]he lawfulness of the officer's conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer. [Citation.]" ( In re Chase C. (2015)
*83Defendant relies on White , supra ,
As in this case, the White defendant engaged in various acts that could be deemed violations of section 148(a)(1). The defendant shoved a police officer who was arresting the defendant's companion. ( White , supra , 101 Cal.App.3d at p. 165,
The jury instructions in White failed to tell the jurors "that if they found the arrest was made with excessive force, the arrest was unlawful." ( White , supra , 101 Cal.App.3d at p. 167,
White held that "where excessive force is used in making what otherwise is a technically lawful arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense which requires the officer to be engaged in the performance of his duties [citations]." ( White , supra , 101 Cal.App.3d at p. 164,
Although the defendant in White engaged in conduct that could have been the basis for a section 148(a)(1) conviction *597prior to the officer's use of excessive force, the court did not consider whether the defendant's conviction *84could have been based on the pre-arrest conduct. Thus, that case is of little assistance to resolving the question presented here, where the jury's question indicated it found a completed violation of section 148(a)(1) prior to the officers' use of excessive force. The instructional error in White was the trial court's complete failure to instruct the jury that an officer is not engaged in the performance of his or her duties if he or she makes an arrest with excessive force. The White court did not consider whether the defendant could have been convicted of violating section 148(a)(1) if the jury found that a completed violation preceded any use of excessive force. " ' "It is axiomatic that language in a judicial opinion is to be understood in accordance with the facts and issues before the court. An opinion is not authority for propositions not considered." ' [Citations.]" ( People v. Knoller (2007)
Defendant also relies on People v. Olguin (1981)
In Olguin, prosecution witnesses testified that the defendant and his relatives were being disruptive and harassing patrons in a bar. The defendant left the bar at the request of police officers, but outside of the bar the defendant threatened one of the officers. The officers arrested the defendant, who "was struggling much of the time," and they transported him to the police department, where the defendant kicked, head-butted, and struggled with the officers. ( Olguin , supra , 119 Cal.App.3d at p. 42,
The jury instructions in Olguin , like those in White, completely failed to inform the jury that "excessive force by a police officer renders unlawful an otherwise lawful arrest in that excessive force is not within the performance of the officer's duty." ( Olguin , supra , 119 Cal.App.3d at p. 44,
Contrary to defendant's claim, the Olguin court did not address "the issue of pre and post excessive force separately."
*598Olguin held only that the jury should have been instructed that the use of excessive force is outside the scope of an officer's lawful duties, and that the error was prejudicial because no other instruction asked the jury to determine whether the officers had used excessive force. Thus, the Olguin case also is not authority for the proposition that a defendant cannot be convicted of violating section 148(a)(1) if an officer uses any excessive force at any time , including after a completed violation of section 148(a)(1), since that proposition was not "actually considered and decided" by the Olguin court. ( In re Chavez (2003)
Defendant contends that the trial court erroneously relied on dicta from Yount , supra ,
The plaintiff in Yount had been the defendant in a criminal case that resulted in him pleading no contest to a violation of section 148(a)(1). ( Yount , supra , 43 Cal.4th at p. 891,
After his criminal case resolved, Yount sued the officer who had shot him, as well as the City of Sacramento, for damages under both state and federal law. ( Yount , supra , 43 Cal.4th at p. 891,
The Yount defendants alleged that Yount's federal and state law claims were barred by Heck v. Humphrey (1994)
The Yount defendants argued that Yount's federal and state law claims had to be dismissed because Yount's section 148(a)(1) conviction had not been invalidated and a judgment in his favor would impliedly render that conviction invalid. Yount argued that because his section 148(a)(1) conviction encompassed multiple acts of resistance, his damages claims would not necessarily invalidate that conviction. ( Yount , supra , 43 Cal.4th at p. 888,
The Yount court declined to hold that Yount could proceed with his claims simply because the evidence showed " 'at least one violation of [Penal Code] section 148 independent *599of and discrete from an officer's alleged misconduct.' " ( Yount , supra , 43 Cal.4th at p. 896,
In explaining why the officers' use of deadly force required a separate analysis from the claim of excessive force, the Yount court acknowledged that " 'two isolated factual contexts' " could exist within " 'one continuous chain of events.' " ( Yount , supra , 43 Cal.4th at p. 899,
Defendant characterizes as dicta the Yount court's comments about how an officer's "subsequent use of excessive force" does not necessarily *87negate a section 148(a)(1) violation. ( Yount , supra , 43 Cal.4th at p. 899,
In our view, the dicta from Yount does reflect "compelling logic." ( Hubbard , supra , 66 Cal.App.4th at p. 1169,
*600We agree with the Attorney General that the rule proposed by defendant "could lead to absurd results." A defendant who has resisted, obstructed, or delayed an officer who is lawfully performing his or her duties would have an inducement to escalate his or her conduct in hopes that an officer will respond excessively and thereby render the arrest unlawful. Logically, the use of excessive force after a defendant's completed section 148(a)(1) offense should not provide a basis for finding the defendant did not violate section 148(a)(1).
Our conclusion is consistent with several federal cases finding that Heck did not bar a plaintiff's claims because the evidence showed that excessive force was used subsequent to the completion of the section 148(a)(1) offense. For instance, in Sanford v. Motts (9th Cir. 2001)
The plaintiff's section 1983 claim was also not barred in Smith v. City of Hemet (9th Cir. 2005)
After pleading guilty to violating section 148(a)(1), Smith filed a complaint under section 1983, alleging the officers had used excessive force. ( Smith , supra , 394 F.3d at p. 694.) The defendants claimed that Heck barred the claim because success on the section 1983 claim would necessarily invalidate the section 148(a)(1) conviction. The Ninth Circuit disagreed, emphasizing that section 148(a)(1) requires an officer to be lawfully performing his or her duties at the time of the violation. The Ninth Circuit noted that an officer who uses excessive force at the time of an arrest would not be lawfully performing his or her duties with respect to the arrest, but that " 'the time of the arrest' does not include previous stages of law enforcement activities that might or might *601not lead to an arrest, such as conducting an investigation." ( Smith , supra , at p. 696,.) Thus, "[a] conviction based on conduct that occurred before the officers commence the process of arresting the defendant is not 'necessarily' rendered invalid by the officers' subsequent use of excessive force in making the arrest." ( Ibid . )
Turning to the facts of the case, the Smith court noted that some of Smith's "acts of willful resistance, delay, or obstruction occurred prior to the time that the officers had determined to arrest him for any criminal conduct" and that those acts "occurred in the course of the officers' lawful performance of their duty." ( Smith , supra , 394 F.3d at p. 696.) Although Smith had also violated section 148(a)(1)"during the course of the officers' efforts to arrest him," his *89conviction was not necessarily based on that conduct and would not be invalidated by success on his section 1983 claim. ( Smith , supra , at p. 697.)
In a post- Yount case, the Ninth Circuit similarly concluded "that a conviction under California Penal Code [section] 148(a)(1) does not bar a [ section] 1983 claim for excessive force under Heck when the conviction and the [ section] 1983 claim are based on different actions during 'one continuous transaction.' " ( Hooper v. County of San Diego (9th Cir. 2011)
Sanford, Smith, and Hooper support our holding. Here, as in those cases, the jury could have found that defendant committed a violation of section 148(a)(1) because defendant resisted, obstructed, or delayed an officer who was acting in the lawful performance of his duties "at the time." (See Manuel G. , supra , 16 Cal.4th at p. 815,
In sum, the trial court's response to the jury question was correct. "NO," was the proper response when the jury asked, "If a peace officer is correctly conducting duties, [¶] If a 148(a)[ (1) ] violation occurs, [¶] If then, subsequent to the violation, excessive force is used, does this invalidate the 148(a)[ (1) ] violation?" If a peace officer is "correctly conducting duties" at the time a defendant violates section 148(a)(1) and "subsequent to the violation, excessive force is used," the section 148(a)(1) violation is not invalidated.
C. Instruction on Acts Violating Section 148(a)
Defendant contends the trial court erroneously instructed the jury that he could be convicted of violating section 148(a)(1) if the jury found that he *90stepped in front of an officer who was writing a citation. He contends that, as a matter of *602law, his act of stepping in front of Officer Brouillette did not violate section 148(a)(1) and thus "the jury was instructed on an invalid theory."5
1. Instructions
In pertinent part, the jury was instructed on the elements of a section 148(a)(1) offense as follows: "To prove that the Defendant is guilty of this crime, the People must prove that, one, Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace officers lawfully performing or attempting to perform their duties as peace officers. [Two, t]he Defendant willfully resisted, obstructed, or delayed Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette in the performance or attempted performance of those duties. And three, when the Defendant acted, he knew or reasonably should have known that Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace officers performing or attempting to perform their duties. ..."
The jury was further instructed that the prosecution had multiple theories about how defendant violated section 148(a)(1). The jury was told: "The People allege that the Defendant resisted, obstructed, or delayed Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette by doing the following. [¶] Jeffrey Brou[i]llette. Stepping in front of Brou[i]llette while he was writing a citation. ..."
The jury instructions also specified: "You may not find the Defendant guilty unless you all agree that the People have proved that the Defendant committed at least one of the alleged acts of resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties, and you all agree on which act he committed. ..."
*912. Legal Principles
It is well-settled that reversal is required when " 'a particular theory of conviction ... is contrary to law,' " i.e., the jury has been instructed on "a 'legally inadequate theory.' " ( Guiton , supra , 4 Cal.4th at p. 1128,
3. Analysis
Defendant asserts that the jury was erroneously told that his act of stepping in front of the officer who was writing a citation could constitute a violation of section 148(a)(1). He argues that as a matter of law, that act could not amount to *603"actual obstruction" of the officer because his act "did nothing to prevent the preparation of the citation." According to defendant, the evidence showed that Officer Brouillette stopped writing the citation only due to subjective concerns for officer safety, not because defendant did anything to prevent completion of the citation.
Defendant compares his act of standing between the officer and Johnson to the act of the defendant in People v. Wetzel (1974)
Wetzel does not suggest the Fourth Amendment confers a right to refuse to obey reasonable police commands issued during lawful police conduct. Moreover, the instant case is distinguishable from Wetzel . Here, defendant was not asserting a constitutional right such as the right to refuse consent to a warrantless search. Defendant actively intervened between the officer and the person being cited, during the officer's lawful attempt to issue a citation.
*92Case law establishes that a defendant may properly be convicted of violating section 148(a)(1) based on acts that do not amount to " 'forcible interference with an officer's activities.' " ( In re Muhammed C. (2002)
Here, defendant willfully stood in between an officer and Johnson, while the officer was writing a citation to Johnson, after the officers had instructed a pedestrian to go around the officer and Johnson. Defendant then ignored multiple requests and orders from the officers to sit down after they explained that defendant was interfering with the citation process. Defendant never complied with the officers' numerous orders. Rather, defendant distracted Officer Brouillette during the citation process, creating a reasonable concern for officer safety, and thereby delayed the officer in completing the citation process. A reasonable jury could find that this constituted a violation of section 148(a)(1). Thus, the trial court did not err by telling the jury that "[s]tepping in front of *604Brou[i]llette while he was writing a citation" was a basis for finding that defendant committed an act of "resisting, obstructing, or delaying a peace officer who was lawfully performing his or her duties."
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR:
GREENWOOD, P.J.
GROVER, J.
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