People v. Clark CA2/6

Filed 1/11/22 P. v. Clark CA2/6
Opinion following transfer from Supreme Court
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE, 2d Crim. No. B306407
(Super. Ct. No. 2019007689)
Plaintiff and Respondent, (Ventura County)

v. OPINION FOLLOWING
TRANSFER FROM
DANIEL JOSEPH CLARK, SUPREME COURT

Defendant and Appellant.

Daniel Joseph Clark appeals from the judgment after
a jury convicted him of battery on a peace officer causing injury
(Pen. Code,1 § 243, subd. (c)(2); count 1), battery with the
infliction of serious bodily injury (id., subd. (d); count 2), and
resisting an executive officer (§ 69, subd. (a); count 3). The jury
also found true an allegation that Clark inflicted great bodily
injury when he committed count 1 (§ 12022.7, subd. (a)). In a
bifurcated proceeding, Clark admitted that he had a prior “strike”
conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and a

1 Statutory references are to the Penal Code.
prior serious felony conviction (§ 667, subd. (a)(1)). The trial
court sentenced him to seven years in state prison.
In his prior appeal, Clark contended: (1) the evidence
was insufficient to support his convictions on counts 1 and 3, (2)
the jury was not properly instructed on excessive force, (3) the
trial court should not have instructed the jury that the right to
self-defense may not be contrived, (4) counsel provided ineffective
assistance, (5) the true findings on the prior strike and prior
serious felony allegations must be vacated, and (6) the errors,
considered cumulatively, denied him a fair trial. We rejected
these contentions. The Supreme Court subsequently directed us
to vacate our decision and reconsider the matter in light of
Assembly Bill No. 518. Having done so, we once again reject
Clark’s contentions, but remand the matter to permit the trial
court to exercise its newfound sentencing discretion.
FACTUAL AND PROCEDURAL HISTORY
Clark assaults a deputy sheriff
In December 2017, a Salvation Army security guard
called 911 to report that a man was harassing the store’s
employees and refusing to leave. Ventura County Sheriff’s
Deputy Amber Voorhees responded to the call. She spoke with
the security guard and obtained a picture of Clark from him.
A few minutes later, employees at a nearby car
dealership called 911 to report that a man was yelling threats
and obscenities. Deputy Voorhees arrived about 10 minutes
later, and saw Clark standing in the dealership’s driveway. She
turned on her body camera,2 approached Clark, and asked for his
identification. He refused to provide it and walked away.

2 Footage from Deputy Voorhees’s body camera was shown
at trial.

2
 Deputy Voorhees saw an open container of vodka in
Clark’s pocket. He also “reeked” of alcohol and appeared to be
under the influence. As he approached a street corner, Deputy
Voorhees worried that he might walk into traffic, so she grabbed
his shoulder and asked him to sit down. Clark told her to leave
him alone.
After asking Clark’s name again, Deputy Voorhees
saw “a sharp, long object” protruding from his pocket. She
reached out to conduct a pat search for weapons. Before she
could do so, Clark grabbed her and a screwdriver fell from his
pocket. Deputy Voorhees tried to move Clark away from it, but
he began “thrashing” around and grabbed her wrist. He refused
to comply with the deputy’s commands to put his hands behind
his back.
Deputy Voorhees punched Clark on the chest in an
effort to make him let go of her wrist. The effort was
unsuccessful. She then directed him to lie on his stomach and
stop struggling. He refused. She threatened to shoot him with
her taser if he continued to struggle; when he did so, she made
good on her threat.
Clark continued to resist, and Deputy Voorhees tased
him again. He then grabbed her hand and bent her thumb
backward. Deputy Voorhees suffered a severe sprain to her
thumb as a result.
Jury instructions
At trial, jurors were instructed on the offenses
charged in counts 1 through 3, plus five lesser-included offenses:
battery against a peace officer (§ 243, subd. (b), a lesser-included
offense to count 1), assault against a peace officer (§ 241, a
lesser-included offense to count 1), simple battery (§ 242, a

3
lesser-included offense to counts 1 and 2), simple assault (§ 240, a
lesser-included offense to counts 1 and 2), and resisting arrest
(§ 148, subd. (a), a lesser-included offense to count 3). As to the
lesser offenses, the trial court told jurors that it could accept
verdicts on them only if they acquitted Clark of the charged
crimes. The court then instructed jurors pursuant to CALCRIM
No. 3517, which told them that they had the discretion to “decide
the order in which [they] consider[ed] each crime and the
relevant evidence.” The instruction also reiterated that the court
could “accept a verdict of guilty [on] a lesser crime only if [jurors]
. . . found [Clark] not guilty of the corresponding greater crime.”
As to counts 1 and 3, the trial court instructed jurors
pursuant to CALCRIM Nos. 945 and 2652, which told them that
they had to conclude that Deputy Voorhees was engaged in the
performance of her duties to find Clark guilty of those charges.
CALCRIM No. 2670 explained to jurors that an officer can use
reasonable force to effectuate a detention, to prevent escape, to
overcome resistance, or in self-defense. Additionally, it said that
suspects can “lawfully use reasonable force to defend” themselves
if peace officers use “unreasonable or excessive force while
detaining or attempting to detain” them. The instruction
repeated that prosecutors had to prove beyond a reasonable
doubt that Deputy Voorhees was lawfully performing her duties
as a peace officer when Clark committed the charged crimes.
In response to Clark’s claim of self-defense, the trial
court instructed jurors pursuant to CALCRIM No. 3470, a
person’s right to self-defense. The court also provided CALCRIM
No. 3472, which explained that “[a] person does not have the
right to self-defense if [they] provoke[] a fight or quarrel with the
intent to create an excuse to use force.”

4
 Closing arguments
During closing arguments, the prosecutor referred to
CALCRIM No. 3472 when arguing that Clark did not have a
right to self-defense because he “started it” when he grabbed
Deputy Voorhees’s wrist.
As to the lesser-included offenses, the prosecutor
argued that jurors “shouldn’t get to those” because they should
instead find Clark guilty of the charged crimes. Regarding the
battery of Deputy Voorhees, he said that “you can’t move to that
lesser crime unless you all find [Clark] not guilty of [c]ount 1. So
if you find [him] guilty of [c]ount 1, you can ignore the rest of this.
You don’t touch any of that . . . . You can’t go down [to] the
lesser-included crimes.” Regarding the lesser crimes, he said that
if the jurors “all agree[d] that [Clark was] not guilty of 243(b),
then [they could] move down to the other two lesser includeds,
the 241, which is [the] assault on a peace officer[,] or a 242, just a
battery.” He later reiterated his belief that jurors “shouldn’t even
get to [the lesser-included offenses] . . . . But if there [was] an
acquittal [on counts 1 through 3], then [they could] start going
through the process of lesser-included crimes.”
Sentencing
Jurors convicted Clark of counts 1 through 3, and
found true the allegation that he inflicted great bodily injury on
Deputy Voorhees. Prior to sentencing, Clark admitted that he
had been “convicted in Ventura County Superior Court of a felony
violation of 245(a)(1), assault with a deadly weapon,” in January
2009. The trial court accepted Clark’s admission and determined
that his crime qualified as both a prior strike and prior serious
felony. It then struck the prior serious felony enhancement and
sentenced him to seven years in state prison: the middle term of

5
two years on count 1, doubled to four years because of the prior
strike, plus three years on the great bodily injury enhancement.
Sentences of four years on count 2 (the low term of two years,
doubled) and two years eight months on count 3 (the low term of
16 months, doubled) were stayed pursuant to section 654.
DISCUSSION
Sufficiency of the evidence of counts 1 and 3
Clark first contends the evidence was insufficient to
support his convictions on counts 1 and 3 because prosecutors
failed to prove that Deputy Voorhees used reasonable force when
detaining him. We disagree.
To evaluate Clark’s contention, “‘we review the entire
record in the light most favorable to the judgment to determine
whether it contains substantial evidence—that is, evidence that
is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find [him] guilty beyond a
reasonable doubt.’” (People v. Avila (2009) 46 Cal.4th 680, 701.)
We draw all reasonable inferences in favor of the verdict, and
presume the existence of every fact the jury could reasonably
deduce from the evidence. (People v. Maciel (2013) 57 Cal.4th
482, 515.) It is immaterial whether we would have drawn those
same inferences (People v. Solomon (2010) 49 Cal.4th 792, 811-
812); our job is not to reweigh the evidence or reevaluate witness
credibility (People v. Jones (1990) 51 Cal.3d 294, 314).
Substantial evidence supports the jury’s
determination that Deputy Voorhees used reasonable force to
detain Clark. “The longstanding rule in California . . . is that a
defendant cannot be convicted of an offense against a peace
officer ‘“engaged . . . in the performance of . . . [their] duties”’
unless the officer was acting lawfully at the time the offense . . .

6
was committed.” (In re Manuel G. (1997) 16 Cal.4th 805, 815,
italics omitted.) This is “‘because an officer has no duty to take
illegal action.’” (Ibid.) It is illegal for an officer to use excessive
force. (People v. White (1980) 101 Cal.App.3d 161, 164; see
Graham v. Connor (1989) 490 U.S. 386, 394 (Graham).) The force
used must instead be reasonable under the circumstances.
(People v. Fosselman (1983) 33 Cal.3d 572, 579.)
We evaluate the reasonableness of Deputy Voorhees’s
use of force “from the perspective of a reasonable officer on the
scene.” (In re Joseph F. (2000) 85 Cal.App.4th 975, 989.) “The
inquiry is an objective one: Was the [deputy’s] action objectively
reasonable in light of the facts and circumstances confronting
[her], without regard to [her] underlying intent or motivation?”
(Ibid.) Answering this question “requires a careful balancing of
‘“the nature and quality of the intrusion on [Clark’s] Fourth
Amendment interests”’ against the countervailing governmental
interests at stake.” (Graham, supra, 490 U.S. at p. 396.) This, in
turn, requires us to scrutinize “the severity of the crime[s] at
issue, whether [Clark] pose[d] an immediate threat to the safety
of [Deputy Voorhees] or others, and whether he [was] actively
resisting arrest or attempting to evade arrest by flight.” (Ibid.)
Here, by the time Deputy Voorhees grabbed him to
prevent him from backing into a busy street, Clark had harassed
workers at two businesses and showed signs of intoxication.
While these were not particularly serious crimes, after Deputy
Voorhees contacted Clark she saw that he had “a sharp long
object” in his pocket, potentially posing a threat to her safety or
the safety of others. Then, when she reached out to search him
for weapons, Clark began “thrashing” around, grabbed her wrist,
and refused to comply with commands to put his hands behind

7
his back. These actions justified Deputy Voorhees’s decision to
subdue Clark by getting on top of him, punching him in the chest,
and shooting him with her taser. (Cf. Mendoza v. City of West
Covina (2012) 206 Cal.App.4th 702, 712 [most important Graham
factor is whether defendant poses threat].) Clark’s assertion that
the deputy should instead have “simply waited for backup or
defused the situation by waiting for [him] to calm down” does not
demand a contrary conclusion. Substantial evidence supports
Clark’s convictions on counts 1 and 3.
Excessive force instruction
Alternatively, Clark contends his convictions on
counts 1 and 3 should be reversed because the trial court failed to
define “unreasonable force” and “excessive force” for the jury.
But Clark did not request these instructions at trial. And
amplifying or clarifying instructions need only be given sua
sponte if a word or phrase has “a technical, legal meaning . . .
that differs from its nonlegal meaning.” (People v. Estrada (1995)
11 Cal.4th 568, 574.)
Here, Clark cites no authority for his claim that
“unreasonable force” and “excessive force” are technical, legal
terms of art with meanings that differ from their nonlegal
meanings. The phrases were used at trial to help explain to
jurors whether Deputy Voorhees was in the “lawful performance”
of her duties when she detained Clark. (CALCRIM Nos. 2652 &
2670.) And CALCRIM No. 200 told jurors that “phrases not
specifically defined” were “to be applied using their ordinary,
everyday meanings.” (Cf. Reed v. Stroh (1942) 54 Cal.App.2d
183, 188 [“[t]he word ‘reasonable’ is an ordinary word and in
common use, and is familiar to the average person”].) We

8
presume jurors followed this instruction. (People v. Homick
(2012) 55 Cal.4th 816, 853 (Homick).)
Graham, supra, 490 U.S. 386, on which Clark relies,
is inapposite. That case involved a civil action under 42 U.S.C.
section 1983 (Graham, at p. 388), not a criminal action involving
a challenge to jury instructions. And although the case
articulated the factors jurors should consider when deciding
whether force used by an officer was reasonable (Graham, at
p. 396), nothing in the opinion suggested that “unreasonable
force” and “excessive force” were legal terms of art. To the
contrary, Graham cautioned that “‘reasonableness . . . is not
capable of precise definition or mechanical application’” and that
“its proper application requires careful attention to the facts and
circumstances of each particular case.” (Graham, at p. 396; see
also People v. Perry (2019) 36 Cal.App.5th 444, 473, fn. 18
[Graham factors “may not be an appropriate subject of
instruction in every case”].) Clark was accordingly required to
request amplifying instructions had he wanted “unreasonable
force” and “excessive force” further defined at trial. Because he
did not, his contention is forfeited. (People v. Cole (2004) 33
Cal.4th 1158, 1211.)
CALCRIM No. 3472
Next, Clark contends his convictions on counts 1 and
2 should be reversed because CALCRIM No. 3472: (1) misstates
the law, and (2) was not supported by the evidence. But Clark
did not object to the instruction at trial. And “‘a party may not
complain on appeal that an instruction correct in law and
responsive to the evidence was too general or incomplete unless
the party has requested appropriate clarifying or amplifying

9
language.’ [Citation.]” (People v. Guiuan (1998) 18 Cal.4th 558,
570 (Guiuan).)
CALCRIM No. 3472 told jurors that Clark did not
have a right to self-defense if he provoked a fight in order to
create an excuse to use force against Deputy Voorhees. That is a
correct statement of the law. (People v. Eulian (2016) 247
Cal.App.4th 1324, 1333; see also People v. Enraca (2012) 53
Cal.4th 735, 761 [approving CALJIC analog].) It was also
responsive to the evidence: As set forth above, substantial
evidence supports the jury’s determination that Deputy Voorhees
used reasonable force when she detained Clark and tried to
search him. The jury could then reasonably infer that Clark’s
response—grabbing her wrist, thrashing about, and refusing to
comply with her commands—was a ruse to enable him to escalate
the situation. CALCRIM No. 3472 was thus responsive to the
evidence presented at trial. Because Clark did not object to it, his
contention is forfeited. (Guiuan, supra, 18 Cal.4th at p. 570.)
Ineffective assistance of counsel
Clark next contends counsel provided ineffective
assistance because he did not object when the prosecutor
“repeatedly and erroneously” told jurors that they could not
consider lesser-included offenses unless they first unanimously
agreed that he was not guilty of the charged offenses. The record
does not support this contention.
An ineffective assistance of counsel claim may be
based on counsel’s failure to object to prosecutorial misconduct.
(People v. Lopez (2008) 42 Cal.4th 960, 966.) Such misconduct
may occur, for example, if a prosecutor misstates the law. (People
v. Bell (1989) 49 Cal.3d 502, 538.) Here, as the Attorney General
rightly concedes, the prosecutor misstated the law when he told

10
jurors that they could not deliberate on the lesser-included
offenses unless they first reached not guilty findings on the
charged offenses. (See People v. Kurtzman (1988) 46 Cal.3d 322,
336.) Even so, counsel was not ineffective for failing to object.
To establish a claim of ineffective assistance, a
defendant must prove, by a preponderance of the evidence, that
counsel’s performance was deficient and resulted in prejudice.
(Strickland v. Washington (1984) 466 U.S. 668, 687, 691-
692; People v. Ledesma (1987) 43 Cal.3d 171, 217-218.) As to the
first requirement, we “defer to counsel’s reasonable tactical
decisions” and indulge “a ‘strong presumption that [their] conduct
falls within the wide range of reasonable professional assistance.’
[Citation.]” (People v. Lucas (1995) 12 Cal.4th 415, 436-437.) We
will not find deficient performance unless no conceivable reason
for counsel’s actions appears on the record. (People v.
Cunningham (2001) 25 Cal.4th 926, 1003.) As to the second
requirement, a defendant establishes prejudice by showing “‘a
probability sufficient to undermine confidence in the outcome.’
[Citations.]” (Ibid.) The defendant must show that probability
“as a ‘demonstrable reality,’ not simply speculation as to the
effect of the errors or omissions of counsel. [Citation.]” (People v.
Williams (1988) 44 Cal.3d 883, 937.)
Clark has not established the prejudice required to
succeed on his claim. The trial court told jurors repeatedly that it
could accept verdicts on the lesser-included offenses only if they
acquitted Clark of the charged crimes. It instructed them
pursuant to CALCRIM No. 3517, which told them that they had
the discretion to “decide the order in which [they] consider[ed]
each crime and the relevant evidence.” It also told them that
they were required to follow the law as explained by the court,

11
and that they must follow those instructions over any contrary
statements by the attorneys. (See CALCRIM No. 200.) We
presume jurors followed the court’s instructions. (Homick, supra,
55 Cal.4th at p. 853.)
Moreover, there was scant likelihood the jury would
have found Clark guilty of any of the lesser offenses without also
finding him guilty of the charged offenses. The two
lesser-included batteries differ from counts 1 and 2 in that they
do not require injury. (Compare CALCRIM Nos. 925 & 945 with
CALCRIM Nos. 945 & 960.) But the jury found that Clark
inflicted great bodily injury on Deputy Voorhees, something he
does not contest. The two lesser-included assaults differ from
counts 1 and 2 in that no actual touching is required. (Compare
CALCRIM Nos. 925 & 945 with CALCRIM Nos. 900 & 915.)
Clark does not dispute that he touched Deputy Voorhees. The
lesser offenses of simple battery and simple assault also differ
from count 1 in that they do not require proof that Deputy
Voorhees was engaged in the performance of her duties.
Substantial evidence supports the jury’s determination that the
deputy was properly performing her duties when she detained
Clark. Finally, the only difference between the lesser-included
offense of resisting a peace officer and the resisting an officer
with force or violence charged in count 3 is the use of force or
violence. (Compare CALCRIM No. 2652 with CALCRIM No.
2656.) Again, Clark does not contest that he used force against
Deputy Voorhees. Clark thus cannot show prejudice stemming
from any deficient performance by counsel. (People v. Rodrigues
(1994) 8 Cal.4th 1060, 1126 [claim fails on an insufficient
showing of either deficient performance or prejudice].)

12
 Prior serious felony and strike allegations
Assault with a deadly weapon is a serious felony
(§ 1192.7, subd. (c)(31)) that qualifies as a strike (§ 667, subd.
(d)(1)). (People v. Hudson (2018) 28 Cal.App.5th 196, 203.) When
Clark suffered his conviction in 2009, however, section 245,
subdivision (a)(1), punished both assault with a deadly weapon
and assault with force likely to produce great bodily injury.
(Hudson, at p. 203.) The latter type of assault is not a serious
felony, nor does it qualify as a strike. (Ibid.) Clark thus contends
the trial court’s true findings on the priors must be vacated
because his 2009 conviction does not categorically qualify as a
strike or serious felony. (People v. Learnard (2016) 4 Cal.App.5th
1117, 1122.)
But during the proceedings below, Clark admitted
that he had been “convicted . . . of a felony violation of 245(a)(1),
assault with a deadly weapon.” (Italics added.) And the trial
court was permitted to consider that admission. (See People v.
Gallardo (2017) 4 Cal.5th 120, 136 [court may consider facts
defendant admitted as basis for guilty plea].) The court’s findings
were accordingly proper.
Cumulative error
Finally, Clark contends the multiple errors that
occurred at trial, considered cumulatively, denied him a fair trial.
Because we rejected all of Clark’s claims of error, he cannot show
cumulative prejudice. (People v. Jablonski (2006) 37 Cal.4th 774,
810.)
Assembly Bill No. 518
Under the law in effect at the time of Clark’s
sentencing, a defendant who committed an act punishable by
different laws had to be punished under the law that provided for

13
the longest possible term of imprisonment. (Former § 654, subd.
(a).) Effective January 1, 2022, trial courts have the discretion to
punish the defendant pursuant to any of the applicable laws.
(§ 654, subd. (a); see Stats. 2021, ch. 441, § 1.) Because Clark’s
case was not final on that date, section 654, as amended by
Assembly Bill No. 518, applies here. (Cf. People v. Valenzuela
(2018) 23 Cal.App.5th 82, 87-88 [amendments granting court the
discretion to strike formerly mandatory firearm enhancements
apply retroactively to non-final cases].) The matter must thus be
remanded to the trial court to exercise its newfound section 654
sentencing discretion.
DISPOSITION
Clark’s sentence is vacated, and the matter is
remanded to the trial court with directions to sentence Clark
pursuant to the amended version of section 654. The clerk of the
court shall then prepare an amended abstract of judgment and
forward a copy to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED.

TANGEMAN, J.

We concur:

GILBERT, P. J. PERREN, J.

14
 Ryan J. Wright, Judge

Superior Court County of Ventura

______________________________

Mi Kim, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Paul M. Roadarmel, Jr. and John
Yang, Deputy Attorneys General, for Plaintiff and Respondent.