Filed 8/31/20 P. v. Lopez CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B298549
(Super. Ct. No. BA465943)
Plaintiff and Respondent, (Los Angeles County)
v.
JOSUE LOPEZ,
Defendant and Appellant.
Josue Lopez appeals from the judgment after a jury
convicted him of three counts of resisting an executive officer
(Pen. Code,1 § 69; counts 1-3), battery with injury on a peace
officer (§ 243, subd. (c)(2); count 4), and resisting, delaying, or
obstructing a peace officer with attempted firearm removal (§
148, subd. (d); count 6).2 The trial court sentenced Lopez to five
1 Further unspecified statutory references are to the Penal
Code.
2
After presentation of the prosecution’s evidence, the court
ordered entry of a judgment of acquittal on count 5 (attempted
years in state prison (three years for count 4 and three
consecutive eight-month terms for counts 1 through 3, for a total
of five years with count 6 stayed pursuant to section 654).
Lopez contends the trial court erred when it (1) did
not instruct the jury on the lesser included offense of
misdemeanor battery on a peace officer (§ 243, subd. (b)), and (2)
imposed fines and fees without determining his ability to pay.
We conditionally reverse the conviction for battery with injury on
a peace officer and remand to the trial court with directions.
FACTUAL AND PROCEDURAL HISTORY
Two police officers and two probation officers were
patrolling in Los Angeles when they saw Lopez walking through
a parking lot. One officer recognized Lopez from previous
contacts as a “self-admitted” MS-13 gang member and knew
Lopez was on probation with search conditions. The officers
attempted to stop Lopez by activating their vehicle lights and
siren, but he ran away.
The officers got out of their vehicle and followed
Lopez. One of the officers saw Lopez grabbing his waistband; he
believed Lopez could have a gun.
One officer stopped Lopez and commanded him to put
his hands up, turn around, and put his hands behind his back.
Lopez initially stopped running and put his hands up, but then
he continued to run. Another officer reached out and grabbed
Lopez by his backpack, but Lopez “slid out of the backpack.”
Lopez ran about 15 feet, turned toward an officer, and took a
“shooting stance” by “simulating pointing a handgun.” Lopez ran
murder of a peace officer (§§ 664, 187, subd. (a)) pursuant to
section 1118.1.
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and the officers followed. At one point, Lopez said to an officer,
“I’m gonna shoot you, dog.”
One of the officers broadcast that they were in
pursuit “of a man with a possible gun.” Officer David
Christensen heard the broadcast, arrived at the scene, and
located Lopez. Lopez was running down the stairs of an
apartment complex toward Christensen. Christensen had his
gun out. Christensen told Lopez to put his hands up and get
down, but Lopez continued running downstairs while lifting his
shirt “as if he was grabbing for a gun.”
Lopez opened a gate that was between him and
Christensen. He punched Christensen twice in the face.
Christensen tried pushing Lopez towards the fence with his left
arm while holstering his gun with the other arm. Lopez punched
Christensen two more times before Christensen pulled him into a
“bear hug.” They “roll[ed] to the ground,” and Lopez tried to grab
Christensen’s gun. Christensen told the other officers “He’s going
for my gun.” Christensen punched Lopez in the face until Lopez
let go of the gun. The other officers intervened and apprehended
Lopez. The body camera videos showed the officers chasing
Lopez and the fight between Lopez and Christensen.
Christensen had a bloody nose and some swelling
around his teeth. An ambulance was called to the scene, and the
paramedics looked at Christensen’s nose. Christensen asked
them to “clean up the blood that had run on [his] upper lip and
face.” Christensen also “had to go to a department approved
clinic to be examined by a doctor.” He testified that he went to
get medical treatment “to see if any further damage had
occurred.” He explained that “everything felt swollen on the front
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of my face. I didn’t know if . . . something got damaged, my nose
had been broken, I have no idea.”
Christensen’s nose was not broken. A photo was
taken of his injuries at the clinic. It showed that his bottom lip
was “a little bit . . . raised” and red. Christensen missed the next
day of work. He did not file an “injured on duty claim.”
During closing arguments, the prosecutor argued
that though Christensen did not “suffer a broken arm or a broken
nose,” he suffered an injury that required him to “seek medical
attention.” The prosecutor argued, “If you are in a situation
where you are attacked by somebody on the street . . . and that
person ends up causing an abrasion, breaking skin, do you want,
as a police officer, to have a doctor have a look at that and make
sure that you’re okay? Yeah, you want that medical attention.”
The defense argued Christensen did not suffer an
injury. He highlighted the photograph of Christensen taken at
the hospital. The defense argued, “that picture is ridiculous . . .
there is no injury here. And if this in the injury, I have literally
hurt myself more eating a hot dog. He could have bit his lip.”
“He took a day off work. . . . That’s all he did. He went to the
clinic because he had to.” The defense also discussed the
evidence regarding the bloody nose: “[Christensen] claimed that
the ambulance cleaned up the blood? I guess the invisible blood
that you clearly cannot see on the videos of the actual incident.
Apparently he started bleeding later, right? . . . It’s hard to say
how you can start bleeding from your nose long after a fight
concluded if it was a result of a punch.” The defense also
asserted that there was “no medical record, you have nothing
about an injury.”
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The trial court instructed the jury with CALCRIM
No. 945, battery with injury on a peace officer (§ 243, subd.
(c)(2)), which requires proof of “any physical injury that requires
professional medical treatment.” The trial court did not instruct
on the lesser included offense of misdemeanor battery on a peace
officer (§ 243, subd. (b)), which does not.
The jury deliberated for one hour. It asked one
question regarding the gang allegation. The jury found the
defendant guilty of three counts of resisting an executive officer
(§ 69), one court of battery with injury on a peace officer (§ 243,
subd. (c)(2)), and one count of resisting, delaying, or obstructing a
peace officer with attempted firearm removal (§ 148, subd. (d)).
It did not find true the gang allegations attached to each count (§
186.22, subd. (b)(1)(A)).
DISCUSSION
Jury Instruction
Lopez contends the trial court prejudicially erred
when it did not instruct sua sponte on the lesser included offense
for misdemeanor battery on a peace officer (§ 243, subd. (b)). We
agree.
1. Evidence of Lesser Included Offense
A trial court must instruct the jury sua sponte on a
lesser included offense where there is substantial evidence,
“‘“which, if accepted . . ., would absolve [the] defendant from guilt
of the greater offense” [citation] but not the lesser.’ [Citation.]”
(People v. Waidla (2000) 22 Cal.4th 690, 733 (Waidla), original
italics.) Substantial evidence means evidence that a reasonable
jury could find persuasive. (People v. Hayes (2006) 142
Cal.App.4th 175, 181 (Hayes).) “‘In deciding whether evidence is
“substantial” in this context, a court determines only its bare
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legal sufficiency, not its weight. [Citations.]’ [Citation.]” (Ibid.)
We independently review whether the trial court failed to
instruct on a lesser included offense. (Waidla, at p. 733.)
Unlike the greater offense, section 243, subdivision
(b), does not include the element of injury. “Injury” is defined as
“any physical injury which requires professional medical
treatment.” (§ 243, subd. (f)(5).) The test for determining injury
is “objective and factual.” (People v. Longoria (1995) 34
Cal.App.4th 12, 17.) “It is the nature, extent, and seriousness of
the injury—not the inclination or disinclination of the victim to
seek medical treatment—which is determinative. A peace officer
who obtains ‘medical treatment’ when none is required,
has not sustained an ‘injury’ within the meaning of section 243,
subdivision (c). And a peace officer who does not obtain ‘medical
treatment’ when such treatment is required, has sustained an
‘injury’ within the meaning of section 243, subdivision (c).” (Ibid.,
fn. omitted, original italics.)
The trial court erred when it did not instruct on the
lesser included offense. Christensen testified that “everything
felt swollen on the front” of his face and he had a bloody nose, but
his nose was not broken. A photograph taken shortly after the
incident of the injury showed only that his bottom lip was “a little
bit . . . raised” and red. Although Christensen took one sick day
off from work, he did not file an “injured on duty claim.” Based
on this evidence, a reasonable jury could conclude that the injury
to Christensen was not serious enough to require professional
medical treatment. (See Hayes, supra, 142 Cal.App.4th at pp.
181-182 [evidence of “a little blood” and swelling, soreness of the
leg for several days, photographs showing minor bruising, and no
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evidence that the injury interfered with physical activities, was
substantial evidence of misdemeanor battery on a police officer].)
Because the “record contains substantial evidence that would
absolve appellant of battery with injury but justify conviction of
the lesser included offense of battery without injury,” the trial
court erred by failing to instruct sua sponte on the lesser included
offense. (Id. at p. 182.)
2. Prejudice
In a noncapital case, error in failing to instruct sua
sponte on a lesser included offense “must be reviewed for
prejudice exclusively under Watson.” (People v. Breverman (1998)
19 Cal.4th 142, 178.) “‘Under the state standard, “such
misdirection of the jury is not subject to reversal unless an
examination of the entire record establishes a reasonable
probability that the error affected the outcome.” [Citations.]
“The Supreme Court has emphasized ‘that a “probability” in this
context does not mean more likely than not, but merely
a reasonable chance, more than an abstract possibility.
[Citations.]’ [Citation.]”’ [Citation.]” (People v. Brown (2016) 245
Cal.App.4th 140, 154 (Brown).)
We decided a similar issue in Hayes, supra, 142
Cal.App.4th 175. As this case, Hayes was charged with felony
battery with injury on an officer (§ 243, subd. (c)(1)), and the trial
court did not instruct on the lesser included offense of
misdemeanor battery on an officer (§ 243, subd (b)). (Hayes, at p.
180.) There, Hayes kicked a 50-pound concrete ashtray, which
hit the officer on the shin. (Id. at p. 179.) The ashtray ripped the
officer’s pants and inflicted a “‘four to four and a half inch
laceration’” on his shin. (Ibid.) Two photographs of the injury
showed “‘a little blood’” and a “‘little swelling,’” and the officer
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reported that his leg was sore for several days. (Ibid.) The officer
put ice on the injury but did not seek medical treatment because
he believed he could “‘deal with it on [his] own.’” (Ibid.)
In examining the evidence, we stated: “it appears to
us, as it seems to have also appeared to [the officer], that the
injury was not severe enough to require professional medical
treatment.” (Hayes, supra, 142 Cal.App.4th at p. 183.) It was
thus “reasonably probable that appellant would have obtained a
more favorable outcome if the jury had not been presented with
an unwarranted all-or-nothing choice between conviction of the
charged offense and complete acquittal.” (Ibid.)
Brown, supra, 245 Cal.App.4th 140, is also
instructive. In Brown, our colleagues in the First Appellate
District held that failure to give instruction on the lesser included
offense of simple assault (§ 240), where Brown was charged with
using force or violence to resist an officer in performance of their
duty (§ 69), was prejudicial error. There, the prosecution
presented evidence that the officers used reasonable force to
apprehend Brown and that Brown attempted to flee on his bicycle
and “repeatedly swung” at and struck the officers. (Brown, at p.
154.) Brown testified that he did not resist the officers before
falling off his bike and that the officers used excessive force when
Brown was “unresisting and ready to surrender—a scenario that
would have made the arrest unlawful.” (Ibid.) The jury could
have accepted either theory of the case, or a third option—that
both parties used excessive force—which “would have supported
an assault conviction.” (Ibid.) But the jury was not given an
instruction on the third option.
The court concluded that instructional error
precluded the jury from finding the third option true. (Brown,
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supra, 245 Cal.App.4th at p. 155.) And the error was prejudicial.
“A ‘jury without an option to convict a defendant of a lesser
included offense might be tempted to convict the defendant of an
offense greater than that established by the evidence instead of
rendering an acquittal.’ [Citation.]” (Ibid.) Notably, the jury
“showed a readiness to scrutinize the evidence . . . and convict on
lesser charges than the prosecutor requested.” (Ibid.) For
example, the jury convicted Brown on the lesser included offense
of a drug charge “which is an indication that it had doubts about
the prosecution’s case which might also have affected its
resolution of the section 69 charge.” (Id. at p. 156.)
Here, the prosecution’s evidence of the injury was
legally substantial, but factually equivocal. The defense argued
the injuries were minor. Specifically, he argued that the
photograph of the injury shows that it was minor, and there were
no medical records. The defense also refuted the claim that
Christiansen suffered a bloody nose, noting that no blood could be
seen on the body camera video. Moreover, the defense argued
that if there was a nose bleed, it is “hard to say” if it “was a result
of a punch.” It is “reasonably probable,” that is, there was a
“reasonable chance,” that the jury would have accepted the
defense argument and convicted on the lesser-included offense
had it been given that option. (Hayes, supra, 142 Cal.App.4th at
p. 183; Brown, supra, 245 Cal.App.4th at p. 155.) Like Brown,
the jury showed “a readiness to scrutinize the evidence” and a
willingness to reject parts of the prosecution’s case. (Brown, at p.
155.) It asked a question regarding the gang allegations attached
to each of the five counts and ultimately found them “not true.”
Because there was a “reasonable chance” Lopez would have
obtained a more favorable outcome had it not been for the
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instructional error, we must reverse the conviction. (Id. at p.
154.)
Fines and Fees
Citing to People v. Dueñas (2019) 30 Cal.App.5th
1157 (Dueñas), which was decided after he was sentenced, Lopez
contends the trial court erred when it imposed a $300 restitution
fine (§ 1202.4), five $30 court facilities fees (Gov. Code, § 70373),
and five $40 court operations fees (§ 1465.8) without first
determining his ability to pay. Because we are reversing the
conviction on count 4, Lopez must be resentenced. At
resentencing, Lopez can renew his objection.
DISPOSITION
The judgment is affirmed with the exception of
Lopez’s conviction for battery with injury on a peace officer,
which is conditionally reversed pursuant to the procedure
outlined in Hayes, supra, 142 Cal.App.4th at page 184. If, after
the filing of the remittitur in the trial court, the prosecutor does
not retry Lopez on the charged offense, the trial court shall
proceed as if the remittitur constituted a modification of the
judgment to reflect a conviction of the lesser included offense of
misdemeanor battery on a peace officer (§ 243, subd. (b)), and
shall resentence accordingly. Upon resentencing, the trial court
shall make a new order on fines and fees.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
YEGAN, Acting P. J.
PERREN, J.
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Robert J. Perry, Judge
Superior Court County of Los Angeles
______________________________
Stanley D. Radtke, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, David E. Madeo and Thomas C.
Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.