People v. Southard

Filed 3/24/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,
Plaintiff and Respondent,
A157236
v.
JOHN WESLEY SOUTHARD, (Del Norte County Super.
Ct. No. CRF-19-9002)
Defendant and Appellant.

Defendant John Wesley Southard was involved in two traffic stops a
week apart in December 2018, the first as a driver in a pickup truck, the
second as a passenger in a car driven by a friend. As a result of defendant’s
interaction with officers from the California Highway Patrol (CHP) and the
Crescent City Police Department, he was charged with seven counts of
obstructing a peace officer and forcible resistance of an officer—charges that
require the People to prove the officers were acting lawfully—and one
misdemeanor count of possession of methamphetamine. Following a
relatively brief trial and relatively lengthy deliberations, defendant was
convicted on all charges. He was sentenced to five years four months in
prison, and also assessed thousands of dollars in fines.
Defendant’s appeal makes five arguments, the first three of which
assert instructional error, that the trial court: (1) gave a special instruction
based on language from an appellate opinion that acted to remove the lawful
performance element of the resisting charges; (2) gave CALCRIM No. 250

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that acted to remove the knowledge element of the charged offenses; and
(3) failed to give a unanimity instruction. We agree with defendant’s first
two arguments, and conclude the errors were prejudicial. We thus reverse
the convictions without the need to address the remaining arguments. And
we publish the opinion, to remind trial courts of the danger of instructing a
jury with language from an opinion that has nothing to do with jury
instructions.
BACKGROUND
Introduction
Defendant was charged with eight counts, seven of which were for
forcible resisting arrest and obstructing a peace officer arising out of his
conduct in traffic stops on December 18 and December 25, 2018. Three
officers testified about what occurred at the first stop, one of whom, Brenton
Dunaj, testified over two days, giving testimony that was anything but
consistent. Indeed, at one point in his briefing, the Attorney General himself
describes the officer’s testimony as “admittedly confused,” such that “the
potential existed for jurors to find an illegal detention”; at another point the
Attorney General describes Dunaj’s testimony as “confusing.” The Attorney
General’s candor is spot on, as the examination of Dunaj revealed.
The December 18 Incident
At about 3:00 a.m., CHP Officers Dunaj and Spencer Good were
patrolling Highway 101 in an area where the highway is a two-lane road.
Dunaj was driving. As their vehicle proceeded south, they observed a pickup
truck heading north at about 35 miles per hour in a 55 mile per hour zone,
while straddling the white line separating the roadway from the shoulder.
Driving at a slow speed was not a traffic violation, as Highway 101 did not
have a minimum speed limit in that area. However, Dunaj testified, driving

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with tires over the line is a violation of the Vehicle Code. Moreover, because
vehicles usually drive in the center of the lane at about the speed limit, the
officers were suspicious the driver was under the influence.
When the pickup truck passed them, Dunaj made a U-turn and, as the
prosecutor would describe him at trial, appearing a “little eager,” said to
Good: “Let’s see what kind of trouble we can get into.” And, Good added, the
stop was to be consensual. After Dunaj turned around and began driving in
the pickup’s direction, the pickup pulled to the side of the road. Then Dunaj
turned his lights on—which he admitted transformed the stop into a
detention requiring reasonable suspicion—after which they noted that the
registration was expired.
This is how the Attorney General’s brief describes the setting: “Driving
with an expired registration tags [sic] also violates the Vehicle Code.
[Citation.] The officers discussed having a consensual encounter with the
driver by not activating their lights, but after Officer Dunaj saw the expired
registration tag, he effected a detention by activating them. Officer Good
testified that even though driving over the white line made the officers
suspect the driver was impaired, in a consensual encounter they would still
be able to observe the driver for signs he was intoxicated such as a smell of
alcohol or red, watery eyes. If the driver seemed to be impaired the officers
would tell him he was being detained. [Citation.] . . . The officers had a
reasonable suspicion the driver was impaired from the combination of the
slow speed, driving over the white line, and the time of night. [Citation.]
“Based on the expired registration tag and his concern that the driver
of the pickup truck was under the influence, Officer Dunaj activated his
patrol car lights to direct the driver to pull over. [Citation.] . . .

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 “Officer Dunaj testified that his reason for activating his lights was for
a violation of Vehicle Code section 21658 (requiring a driver to drive within a
single lane), although that statute applies only to roadways with two or more
lanes in one direction. [Citation.] In his report, Officer Dunaj did not list a
violation of Vehicle Code section 21658. The first listed violation was Vehicle
Code section 22107, because Officer Dunaj considered driving over the line
marking the edge of the roadway to be an unsafe movement.”
After being pulled over, defendant got out of the pickup. The officers
ordered him to get back in. But defendant took off running, and ran
approximately two hundred feet before he tripped and fell. Dunaj got on top
of defendant to hold him down and Good arrived “within seconds.” Deputy
Wade Owen, who was responding to a call for assistance, testified that he
saw Good and Dunaj chasing defendant, and it took him “a few seconds” after
he stopped to catch up to the group. Dunaj used his taser to “drive-stun”
defendant a number of times, and the officers then arrested defendant.
Owen’s body camera captured the incident.
On direct examination, Dunaj testified that defendant’s right hand was
free, and appeared to be reaching towards his right pocket in which two
folding knives, each with a three-inch blade, were later found.1 On cross-
examination, Dunaj was shown Owen’s body camera footage showing that,
contrary to Dunaj’s testimony and his report, he actually had defendant’s
right hand in a control hold the entire time. Dunaj then testified that
defendant was reaching for his flashlight and possibly to his right pocket in
the 10 to 20 seconds before Owen’s arrival. Six pages later, Dunaj changed
his testimony, testifying that defendant’s hand was underneath his body, not
visible, and he could not say if it was going towards defendant’s right pocket.

1 The knives were legal, and defendant never pulled them out.

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 Good testified that he observed defendant’s left arm to be underneath
his body. Owen testified that while defendant’s hand was behind his back, it
was unclear what he was specifically reaching for. He also testified that
when he got there, Dunaj had defendant’s right hand “out and to the side.”
And despite Dunaj’s testimony that they pulled defendant over for
three purported Vehicle Code violations, Dunaj admitted that “only one of
[them] seem[ed] to factually apply,” and it was an “infraction.”2
The December 25 Incident
On December 25, Christmas, defendant was, along with his minor son,
a passenger in an older model Volvo driven by David Bonde. Defendant was
in the front passenger seat, his son in the back. At a little after 7:00 p.m.,
CHP Officer Tyler Krueger observed that the license plate lights on the Volvo
were not working, and pulled the car over in a supermarket parking lot. As
Krueger approached the car, he recognized defendant, as he had heard
“stories” about him, and was aware of the December 18 incident—knowledge,
Krueger would come to testify, that affected how he dealt with defendant
during the traffic stop.
Krueger asked Bonde for his license, registration, and insurance.3
Krueger asked defendant for his full name and date of birth, and defendant
asked why Krueger “was messing with” him. Krueger admitted he did not
demand that defendant identify himself because at the point he was not
aware of anything defendant had done wrong.

2 To further add to the confusion, in their testimony, but not in the
police reports, Dunaj and Good claimed they believed defendant may have
been intoxicated.
3 Bonde’s license came back as suspended, a misdemeanor, but Krueger
did not cite him.

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 Krueger testified he wanted to run a warrant check and hoped to keep
the conversation calm while he did. Defendant told Krueger he had recently
been released from jail, and Krueger testified that although a person would
not be released from jail if there was an outstanding warrant unless they had
been given a court appearance date, he requested a warrant check because
something could have come up after defendant’s release.
Defendant unbuckled his seat belt, and moved his hand to the center
console. Krueger told defendant to put his seat belt back on. Defendant said
he had not done anything, and appeared to Krueger to be digging for
something on his left side. Krueger asked him what he was digging for and,
concerned that defendant was trying to grab something or run off, called for
backup.
CHP Officer Brian Wilson arrived as backup, and was told by Krueger
he was concerned defendant would “foot bail.” Wilson made “small talk” with
defendant, who among other things asked whether they could just let him go
as it was Christmas.
Meanwhile, Krueger received advice from dispatch that defendant had
a felony warrant, and requested more backup.4 CHP Officer Levi Sackett
responded, and asked Bonde for the keys, which Sackett put on the roof of the
car.
Krueger ordered defendant to get out of the car. Defendant refused,
and continued reaching to his left. Wilson went to the driver’s side and
ordered Bonde to get out. Defendant pushed the door lock down several
times, and continued to refuse orders to exit, telling the officers he did not
have a warrant, that he had just been released from jail.

Though dispatch confirmed the warrant, Krueger never asked
4

dispatch to confirm whether defendant had recently been in jail and released.

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 More officers arrived, including from the Crescent City Police
Department, one of whom was Officer Gene Votruba with his German
Shepherd Django. Votruba told Wilson to get defendant’s son out of the car.
Defendant reached back, put his hand on his son’s knee and told him to stay
in the car; his son replied, “Dad, get out of the car.” He did not. The officers
were ultimately successful in getting defendant’s son out of the car, and
Bonde too was able to get out. Meanwhile, defendant began to get louder and
more verbally aggressive.
Wilson testified he saw a knife by defendant’s left side. Wilson walked
to the passenger side, and as he did defendant moved his body toward the
driver’s side to try to close the door, but Wilson and Votruba were able to
keep the driver’s door open. And then Vortuba released Django, commanding
him to “foss,” German for “take-hold” or bite. And he did.
As Django began to chew on defendant, Sackett broke the right front
passenger side window. When this happened, defendant moved back into the
passenger seat and began “flailing.”5 Krueger joined Sackett and Wilson at
the passenger side window and swung his baton, a 20-to-24-inch metal baton,
at defendant at least six times, testifying he believed he only hit defendant
twice—this, with defendant pleading, “why are you beating on me?” Then,
after several dog bites and Krueger’s strikes with the baton, Sackett,
Krueger, and Gale all tased defendant.6 This eventually caused defendant’s
muscles to lock up, and the officers pulled him out of the car. Then, as the

5The Attorney General’s brief asserts that defendant “retreated into
the vehicle and grabbed glass from the window,” and “began using both
hands to throw glass at the officers.” Some officers testified defendant was
throwing glass at them; others felt defendant was hitting the glass window.
6At one point, Sackett and Gale deployed their tasers at the exact same
time, which would have introduced a significant amount of electricity into
defendant’s body, perhaps as much as 100,000 volts.

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video shown to the jury revealed, officers put knees on defendant’s neck and
back, with defendant screaming, “I can’t breathe, I can’t breathe,” “That’s
illegal,” and “you’re killing me.”
Defendant was handcuffed, after which he was placed on his side in a
recovery position. And because of defendant’s exclamation that he could not
breathe, he was given oxygen and medical attention. He was then
transported to a hospital with scrapes and puncture wounds to his left arm
and shoulder and a bite wound to his right hand.
No officer testified that defendant made any threats or brandished a
weapon. Some specifically testified to the contrary.
Ultimately, the officers found two knives on the ground, the one Wilson
had observed and another. They also recovered a small canister from
defendant’s belt, which the parties stipulated contained a usable amount of
methamphetamine.
The only defense witness was Sergeant Tiffany Williams from the Del
Norte County Jail, who testified that defendant was booked into the jail on
December 18 and released on December 21. Jail personnel are supposed to
check for warrants prior to releasing a prisoner, and Williams signed
defendant’s release form unaware of any warrants. Williams acknowledged
she did not personally check for warrants, and there was a lot of new staff, so
Williams could not be certain a warrant check had occurred. Also, if a
warrant had been issued by a federal judge on December 21, it could take a
few days for it to be processed into the system, and it was possible the
warrant was not in the system until sometime after defendant was released.
The Proceedings Below
On March 21, 2019, the Del Norte County District Attorney filed a
second amended information charging defendant with eight counts, three

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felonies and five misdemeanors: count 1: resisting a peace officer by force
(Pen. Code, § 69)7 on December 18 against Officer Dunaj; count 2: resisting
with force (ibid.) on December 25, against Officer Krueger; count 3: resisting
with force (ibid.) on December 25, against Officer Sackett; count 4:
misdemeanor resisting arrest (§ 148, subd. (a)(1)) on December 18, against
Officer Dunaj; count 5: misdemeanor resisting arrest (ibid.) on December 18
against Officer Good; count 6: misdemeanor possession of methamphetamine
(Health & Saf. Code, § 11377, subd. (a)) on December 25; count 7:
misdemeanor resisting arrest (§ 148, subd. (a)(1)) on December 25, against
Officer Krueger; and count 8: misdemeanor resisting arrest (ibid.) on
December 25, against Officer Vortuba. The information additionally alleged
that defendant suffered two prison priors within the meaning of section
667.5, subdivision (b).
Opening statements and the People’s case began on March 25, and
involved testimony on portions of three days, March 25, 26, and 27, testimony
that as best we can reconstruct from the court minutes totaled some 12
hours: one and one-half hours on the 25th, less than six hours on the 26th,
and five hours on the 27th. Defendant’s brief defense was the next day,
following which the court and counsel devoted several hours to settling
instructions and exhibits. Closing arguments followed, and at 4:50 p.m. on
March 28, the case was in the hands of the jury.
Jury deliberations began on the morning of March 29, and lasted for
almost six hours, during which time the jury requested to see two videos of
the December 25 incident. The jury also asked this question about the law
concerning defendant’s “knowledge” as to count 6: “Would a reasonable

7All statutory references are to the Penal Code, unless otherwise
indicated.

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person know of Points 2 and 3 of Health and Safety Code section 11377 (a) or
do we have to know definitively if the defendant knew what was in the
canister or does that create reasonable doubt.”
At 3:22 p.m., the jury returned its verdict convicting defendant on all
eight counts. This was followed that day by a bench trial where the court
found true one of the two prison prior allegations.
On May 6, the trial court sentenced defendant to a sentence of five
years four months, calculated as follows: the aggravated term of three years
on count 1, consecutive to eight months (one-third the middle term) on both
counts 2 and 3, plus one year for the prison prior. The court additionally
imposed several thousand dollars in fines and fees.
DISCUSSION
The Standard of Review
As mentioned, defendant’s first three arguments assert instructional
error, a claim we review de novo. (People v. Waidla (2000) 22 Cal.4th 690,
733.) This standard is applicable in “assessing whether instructions correctly
state the law [citations], . . . and also whether instructions effectively direct a
finding adverse to a defendant by removing an issue from the jury’s
consideration.” (People v. Posey (2004) 32 Cal.4th 193, 218.) And in
reviewing a claim of instructional error, we must consider whether there is a
reasonable likelihood the trial court’s instructions caused the jury to
misapply the law in violation of the Constitution. (Estelle v. McGuire (1991)
502 U.S. 62, 72, fn. 4; People v. Lucas (2014) 60 Cal.4th 153, 287; People v.
Frye (1998) 18 Cal.4th 894, 957.)
That review leads to the conclusion there was instructional error
here—error that was prejudicial.

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 The Special Instruction Was Error
All seven of the obstruction and resisting arrest counts required the
People to prove beyond a reasonable doubt that the officers were lawfully
performing their duties at the time defendant resisted. Thus, the trial court
properly gave CALCRIM No. 2652 for misdemeanor resisting arrest and
CALCRIM No. 2656 for resistance by force, both of which in the course of
their lengthy text require the People prove that “when the defendant acted,
the officer was performing his lawful duty,” and both of which go on to
instruct 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. Instruction 2670 explains when an
arrest or detention is unlawful or when force is unreasonable or excessive.”
The jury was also instructed with CALCRIM No. 2670, 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.”
So far, so good. Then, on the very next page, the court gave this
instruction:
“An individual’s decision to commit a new and distinct crime, even if
made during or immediately after an unlawful detention, is an intervening
act sufficient to purge the ‘taint’ of a theoretically illegal detention. If you
believe that the defendant was acting lawfully and that the police detained
him unlawfully, a defendant’s subsequent conduct in obstructing, resisting, or
delaying the officers, if it occurred, can be an independent act that dissipated
the taint from the initial unlawful seizure. [¶] If there was unlawful
detention, you may conclude that a choice to flee or to resist arrest are

11
independent intervening acts sufficiently distinct from an illegal detention to
dissipate the taint of an illegal detention.”
The genesis of this instruction is not definitively shown by the record,
though we surmise from the colloquy it was submitted by the People.
Regardless, the Attorney General’s brief describes this special instruction as
“a correct statement of law pursuant to People v. Cox (2008) 168 Cal.App.4th
702.” For his part, defendant says the “language of this instruction was
pulled nearly verbatim” from In re Richard G. (2009) 173 Cal.App.4th 1252,
1262. But whatever its origin, the instruction has no place here, as both
cases involved motions to suppress, not jury instructions.8 So, while the
instruction may be an accurate quotation from Richard G. or Cox, the
instruction is a misstatement of law in the context of this case: It had the
effect of undermining defendant’s defense that he was unlawfully stopped
during the first incident and unlawfully beaten during the second, not to
mention that it eliminated one of the elements of the crime the People were
required to prove—lawful activity by the officers.
As our Supreme Court has observed, in order to be “perform[ing] a
lawful duty,” the officer must be acting lawfully. (In re Manuel G. (1997)
16 Cal.4th 805, 818; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) “The
lawfulness of the officer’s conduct is an essential element of the offense of

8 For example, in In re Richard G., defendant punched a police officer
after he was stopped. He argued that, because the stop violated his Fourth
Amendment rights, evidence that he punched the officer had to be suppressed
as a fruit of the poisonous tree. The Court of Appeal rejected this argument
generally in the language quoted in the jury instruction above, after citing a
long line of cases holding that the policy reasons for excluding evidence for
Fourth Amendment violations are hardly served by excluding evidence of a
defendant’s subsequent acts of violence against police. (In re Richard G.,
supra, 173 Cal.App.4th at pp. 1252–1254, 1260–1263.) People v. Cox, supra,
168 Cal.App.4th 702 is similar.

12
resisting . . . a peace officer.” (In re Chase C. (2015) 243 Cal.App.4th 107,
115.) As one Court of Appeal put it in a section 148 case, “[I]f a defendant is
charged with violating section 148 and the arrest is found to be unlawful, a
defendant cannot be convicted of that section,” adding that an unlawful
arrest includes both one made without legal grounds and one made with
excessive force. (People v. White (1980) 101 Cal.App.3d 161, 166–167.)
Another court has noted that the trial court has a sua sponte duty to instruct
that the defendant is not guilty of the offense charged if the arrest was
unlawful. (People v. Olguin (1981) 119 Cal.App.3d 39, 46–47.) And another
noted that, on request, the court must instruct that the prosecution has the
burden of proving the lawfulness of an arrest beyond a reasonable doubt.
(People v. Castain (1981) 122 Cal.App.3d 138, 145.)
In short, if the arrest is unlawful, the defendant may not be convicted
of violating of section 69 or section 148. Despite that, the instruction here
acted to revive any unlawful conduct by the officers, to “dissipate the taint of
it”—to “purge” it. It was a plain misstatement of law in the circumstances
here. It was error.
People v. Maurer (1995) 32 Cal.App.4th 1121 (Maurer) is instructive.
There, Maurer was charged with several violations of section 647.6, unlawful
sexual contact with a minor. The trial court instructed on the elements of the
crime, including that defendant had to be “ ‘motivated by an unnatural or
abnormal sexual interest . . . .’ ” (Maurer, at p. 1125.) This was followed
immediately by the trial court instructing the jury that “ ‘[m]otive is not an
element of the crime charged and need not be shown.’ ” (Ibid.) Maurer was
convicted on two counts, which the Court of Appeal reversed, rejecting the
state’s arguments that these instructions did not “cancel” one another out.
To the contrary, the court concluded the second instruction directly

13
contradicted the first instruction on the mental state of the charged crime,
and was therefore improper. (Id. at pp. 1126–1127.)
Likewise here. The jury was properly instructed on the elements of the
charged offenses, including the requirement that the officers were engaged in
the lawful performance of their duties at the time of the offenses. But just as
in Maurer, supra, 32 Cal.App.4th 1121, the trial court also gave a separate—
and wholly contradictory—instruction on the lawful performance element,
this time telling the jury that the defendant’s actions “after an unlawful
detention, is an intervening act sufficient to purge the taint of a theoretically
illegal detention,” to “dissipate the taint.” In no uncertain terms, this allowed
the jury to find that officers were acting unlawfully, that defendant resisted,
and that this resistance transformed the officers’ unlawful conduct into
lawful conduct.
Use of language from a case involving a motion to suppress as a basis
for a special jury instruction here was improper, as trial courts have been told
for decades. More than 50 years ago, Division One of this court observed that
what the trial court did here was a “dangerous practice” that had been
“frequently criticized by courts.” (Fibreboard Paper Products Corp. v. East
Bay Union of Machinists (1964) 227 Cal.App.2d 675, 718 (Fibreboard).)
Justice Kaus cited Fibreboard in support of his court’s observation that to
“instruct juries by the use of quotations from appellate opinions taken out of
context is to court disaster.” (People v. Ramirez (1974) 40 Cal.App.3d 347,
355.)
The Supreme Court weighed in on this in People v. Colantuono (1994)
7 Cal.4th 206, 221, fn. 13, observing as follows: “Indeed, this case illustrates
the danger of assuming that a correct statement of substantive law will
provide a sound basis for charging the jury. (See People v. Smith (1989)

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214 Cal.App.3d 904, 912–913; People v. Adams (1987) 196 Cal.App.3d 201,
204–205; see also People v. Gibson (1965) 235 Cal.App.2d 667, 669.) The
discussion in an appellate decision is directed to the issue presented. The
reviewing court generally does not contemplate a subsequent transmutation
of its words into jury instructions and hence does not choose them with that
end in mind. We therefore strongly caution that when evaluating special
instructions, trial courts carefully consider whether such derivative
application is consistent with their original usage. . . .’ ”
More recently, we ourselves confirmed all of this, in People v. Hunter
(2011) 202 Cal.App.4th 261, 277–278, where our Presiding Justice Kline
distilled the criticism this way: “The challenged instruction was given in this
case because, as in People v. Colantuono (1994) 7 Cal.4th 206, the trial judge
much too quickly assumed ‘that a correct statement of substantive law will
provide a sound basis for charging the jury.’ (Id. at p. 221, fn. 13; accord
People v. Adams (1987) 196 Cal.App.3d 201, 204–205 [‘Language in an
appellate court opinion which may be a good statement of law or of the
reasoning of the appellate court does not necessarily make a good jury
instruction’]; see People v. Smith (1989) 214 Cal.App.3d 904, 912–913;
People v. Ramirez (1979) 40 Cal.App.3d 347, 355; People v. Hudgins (1967)
252 Cal.App.2d 174, 183; People v. Odom (1937) 19 Cal.App.2d 641, 649.)
But, as this case shows, ‘[t]he discussion in an appellate decision is directed
to the issue presented. The reviewing court generally does not contemplate a
subsequent transmutation of its words into jury instructions and hence does
not choose them with that end in mind.’ (People v. Colantuono, at p. 221,
fn. 13.) For this reason, our Supreme Court has strongly cautioned ‘that
when evaluating special instructions, trial courts carefully consider whether

15
such derivative application is consistent with their original usage.’ (Ibid.)
The trial judge in this case neglected to make that necessary inquiry.”
Giving this special instruction was error. Likewise giving CALCRIM
No. 250.
The Instruction on Mental State Was Error
All eight counts with which defendant was charged had an element
dealing with his mental state. As to the three resisting with force counts, the
jury was told that the People had to prove beyond a reasonable doubt that
defendant “knew the executive officer was performing his duty.” As to the
four resisting without force counts, the jury was instructed the People must
prove defendant “knew, or reasonably should have known, that the peace
officer was a peace officer performing or attempting to perform his duties.”
And as to the possession of methamphetamine count, the jury was instructed
that the People had to prove beyond a reasonable doubt that defendant “knew
of [the drug’s] presence” and “knew of the substance’s nature or character as
a controlled substance.”
Despite that, the jury was then given another, and contradictory,
instruction, CALCRIM No. 250, which instructed the jury it could convict
defendant on all counts solely if it found “he intentionally [did] a prohibited
act; however, it is not required that [he] intended to break the law”—an
instruction, we are constrained to note, given despite the express boldface
warning in the use notes that “[T]his instruction must not be used if the
crime requires a specific mental state, such as knowledge . . . , even if the
crime is classified as a general intent offense.” (Bench Notes to CALCRIM
No. 250.)
Defendant’s mental state was hotly contested. For example, as to the
first incident, defense counsel argued at length the various grounds

16
defendant had to believe the officers were not lawfully performing their
duties. As to the second incident, counsel argued that, as defendant said, he
had no warrant as he had just been released from jail, also focusing on the
officers’ conduct as they beat him with the baton and tased him, all while he
was under attack by Django. And it was similar as to the methamphetamine
possession charge, a knowledge issue the jury itself homed in on, asking the
question quoted above.
The Errors Were Prejudicial
Turning to the first instruction error, the giving of the special
instruction, “The failure to instruct on the elements of a charged crime is
serious constitutional error that impacts a defendant’s fundamental right to a
jury trial.” (People v. Merritt (2017) 2 Cal.5th 819, 821.) Such error violates
a defendant’s due process rights. (See generally United States v. Gaudin
(1995) 515 U.S. 506, 512–515; Maurer, supra, 32 Cal.App.4th at p. 1128.) As
Maurer held, the removal of an element of the crime—there, defendant’s
mental state—constitutes a denial of federal due process and invokes “the
Chapman ‘beyond a reasonable doubt standard’ for assessing prejudice.”
(Maurer, supra, 32 Cal.App.4th at p. 1128, citing People v. Guiton (1993) 4
Cal.4th 1116, 1130; People v. Lee (1987) 43 Cal.3d 666, 673–674; and
Chapman v. California (1967) 386 U.S. 18, 24.) And in order to meet this
burden, the People must prove beyond a reasonable doubt that the omitted
element was “uncontested” and “supported by uncontroverted evidence”
(Neder v. United States (1999) 527 U.S. 1, 17–18), a burden, Neder added, the
People cannot carry where “the defendant contested the omitted element and
raised evidence sufficient to support a contrary finding.” (Id. at p. 19.)
That, of course, is the situation here, where the lawful performance
element of the resisting charges was contested as to both incidents. As to the

17
first incident, the contest was based in part, as the Attorney General
concedes, on testimony that was “admittedly confused” such that “the
potential existed for jurors to find an illegal detention,” and included defense
counsel’s argument that the Vehicle Code violations Dunaj claimed to have
observed never happened. And as to the second incident, counsel focused on
the excessive force involved, with rhetorical flourishes such as: “What does
he do next that justifies the nuclear option of a dog whose only purpose is to
bite him? What has he done to justify having a metal baton swung at his
body six successive times with forethought, with intent and power? What has
he done to justify having two separate TASERs deployed from the same side
of the car at the same time?”
Lawful performance was hardly “uncontroverted” or “uncontested.”
And it was contested for good reason, including Dunaj’s inconsistent
testimony; his admissions; the video of the first incident, which shows the
conduct of the officers as defendant screams at one point, “Why are you
beating on me?”; and the video of the second incident where, after pulling
defendant out of the car, they put their knees on defendant’s neck and back,
all while he screams, “I can’t breathe! That’s illegal,” and, “You’re killing
me!”
Turning to the second instructional error, the conflicting instructions
on defendant’s knowledge, this too was a significant part of the defense,
including as to the first incident, that defendant had committed no traffic
infractions. And as to the second incident, counsel pointed to defendant’s
belief that, contrary to what officers were saying, he did not have a warrant
given his recent release from jail. Further, it was reasonable that
defendant—being bitten, beaten, and tased—could hold a belief that officers
were not acting in the performance of their duties while doing this to him.

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Finally, as to count 6, possession of methamphetamine, defense counsel
devoted pages of his closing argument to the knowledge element. The
knowledge element was anything but “uncontested,” and the jury’s question
shows that the evidence was hardly overwhelming. Superimposed on all of
this is the fact the jury deliberated for nearly six hours, during which they
asked to view two videos. This shows a close case. (People v. Woodard (1979)
23 Cal.3d 329, 341 [deliberations nearly six hours demonstrate “guilt . . . was
far from open and shut”].)
In light of our conclusions above, we need not address defendant’s
remaining claims, as those issues may or may not be pertinent in the event
defendant is retried. And we will not offer any guidance on defendant’s claim
that the jury must be instructed on unanimity, other than to refer to the use
notes of CALCRIM No. 2656: “If the prosecution alleges multiple, distinct
acts of resistance, the court has a sua sponte duty to instruct on unanimity.”
DISPOSITION
The judgment is reversed.

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 _________________________
Richman, J.

We concur:

_________________________
Kline, P.J.

_________________________
Stewart, J.

People v. Southard (A157236)

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Trial Court: Del Norte County Superior
Court

Trial Judge: Honorable Darren McElfresh

Attorney for Plaintiff and Attorney General of California,
Respondent The People: Xavier Becerra; Chief
Assistant Attorney General,
Lance E. Winters; Senior
Assistant Attorney General,
Jeffrey M. Laurence;
Supervising Deputy Attorney
General, Catherine A. Rivlin;
Deputy Attorney General,
Bruce M. Slavin

Attorney for Defendant and By Appointment of First
Appellant John Wesley District Appellate Project
Southard Independent-case System,
Rudolph J. Alejo.

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