Filed 6/14/22 P. v. Mendoza CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F081812
Plaintiff and Respondent,
(Super. Ct. No. MCR064935)
v.
JESUS LEE MENDOZA, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Madera County. Ernest J.
LiCalsi, Judge.
Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez, Darren K.
Indermill and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and
Respondent.
-ooOoo-
INTRODUCTION
Following a domestic dispute with his partner, Maria R., defendant Jesus Lee
Mendoza was charged with two felonies, making criminal threats with an attached
sentence enhancement allegation for personal use of a firearm (Pen. Code, §§ 422,
subd. (a), 12022.5, subd. (a); count 1),1 and resisting an executive officer by means of
force or violence (§ 69, subd. (a); count 2). The case went to trial and the jury convicted
defendant on count 1 of the lesser included offense of attempted criminal threats,
convicted him on count 2, and found the sentence enhancement allegation true. The trial
court sentenced defendant to the upper term of 18 months on count 1 plus an additional
term of 10 years for the firearm enhancement, and a consecutive term of eight months on
count 2, for a total determinate term of 12 years 2 months.
On appeal, defendant claims the prosecution failed to make a good faith effort to
obtain Maria’s presence at trial and, therefore, the trial court erred when it found she was
unavailable and permitted use of her preliminary hearing testimony. Defendant also
claims the trial court erred when it denied his request to instruct the jury on the lesser
included offense of resisting arrest under section 148, subdivision (a)(1). Finally,
defendant claims the trial court miscalculated his presentence custody credits; the
sentencing minutes and abstract of judgment contain clerical errors requiring correction;
and the matter must be remanded for resentencing on count 1 in light of Senate Bill
No. 567 (2021–2022 Reg. Sess.), which amended section 1170 effective January 1, 2022
(Stats. 2021, ch. 731, § 1.3) (Senate Bill 567).
The People concede defendant is entitled to recalculation of his credits, to
correction of the clerical errors in the minute order and abstract of judgment, and to
resentencing on count 1 under Senate Bill 567. They dispute the trial court erred when it
1 All further statutory references are to the Penal Code unless otherwise specified.
2.
found Maria was an unavailable witness and admitted her preliminary hearing testimony
or when it declined to instruct the jury on the lesser included offense of resisting arrest.
We conclude that the prosecutor failed to demonstrate he “exercised reasonable or
due diligence to obtain [Maria’s] presence at trial” (People v. Sanchez (2016) 63 Cal.4th
411, 440 (Sanchez)), and the trial court erred in concluding otherwise. As Maria’s
preliminary hearing testimony was critical to the prosecution’s case on count 1, the error
was not harmless beyond a reasonable doubt and reversal of defendant’s conviction for
attempted criminal threats is required. However, we reject defendant’s claim that the trial
court’s failure to instruct the jury on the lesser included offense of resisting arrest was
erroneous. In light of the disposition on count 1, defendant’s request for resentencing
under Senate Bill 567 is moot, as is his request for correction of one of the two clerical
errors, but, on remand, recalculation of defendant’s presentence credits is required, and
the trial court shall correct its minute order and forward an amended abstract of judgment
omitting the $750 presentence report fee.2
FACTUAL SUMMARY
I. Prosecution Case
Around midnight in late October 2019, a female called 911, reported a domestic
disturbance, and hung up. Madera County Sheriff’s Department deputies were
dispatched to the residence. Deputy Bangerter, who was in uniform and driving a marked
vehicle, arrived first. He proceeded cautiously because it was very dark, and there were
several residences and vehicles on the property.
The lights were on in only one house at the rear of the property and Deputy
Bangerter heard male and female voices yelling from inside. Bangerter saw a male,
2 Although the trial court did not impose the presentence report fee in this case,
section 1203.1b, which authorized the fee, was repealed effective July 1, 2021, and any balance
owed became unenforceable and uncollectible effective September 23, 2021. (Assem. Bill
No. 1869 (2019–2020 Reg. Sess.); Assem. Bill No. 177 (2021–2022 Reg. Sess.).)
3.
whom he identified as defendant, come outside, look at him, and go back inside the
house. Prior to and after seeing defendant, Bangerter announced himself and told the
residents to come outside. Bangerter positioned himself behind a vehicle and when a
woman, identified as Maria, came out, he directed her to come to him. She complied, he
asked if there were any weapons in the house, and she said yes.3 Bangerter testified
Maria’s voice and body were shaking, and she appeared scared.
Thereafter, defendant came out of the house a second time. Bangerter had a
flashlight and could see there were no weapons in defendant’s hands. He called out to
defendant, who was speaking in Spanish, although it was unclear to whom. As Bangerter
approached, defendant turned and started to retreat toward the house. Bangerter grabbed
defendant from behind to prevent him from returning to the house. Defendant turned to
face Bangerter, who began to explain why he was there. Defendant was wearing jeans
and a loose jacket, and he reached for his front pants pocket. With his right hand,
Bangerter grabbed defendant’s right hand and told him to stop reaching into his pockets.
When defendant tried to step around him, Bangerter readjusted his grip and tried to grab
both of defendant’s hands. Defendant attempted to pull away. Bangerter told him to stop
and asked if he had any weapons, but he did not respond.
Bangerter wrapped his right leg around defendant’s legs in an attempt to leg-
sweep defendant to the ground. Defendant put his arms around Bangerter’s waist and
duty belt, although he did not try to remove any items from the belt. Defendant tried to
take Bangerter to the ground and Bangerter pushed him to create some space between
them. Bangerter was unable to reach the taser on his left side because his flashlight was
in his left hand and defendant was pinning his left arm. Using his free right hand,
Bangerter struck defendant in the face and head several times, which enabled Bangerter
to pull free.
3 This evidence was not admitted for its truth, but for its effect on Deputy Bangerter.
4.
Defendant then took a fighting stance with one leg back and his arms up.
Bangerter also took a fighting stance and reached for his sidearm, at which time
defendant took off down the street. Bangerter chased after defendant until he lost sight of
him. At that point, Bangerter stopped and waited for backup to arrive. His glasses had
been knocked off during the struggle, his radio was hanging askew, and he had a wrist
injury.
Corporal Rodriguez testified that he and another deputy arrived at the same time in
separate vehicles. Bangerter was in the road with his flashlight. Bangerter was
disheveled and his eyeglasses were missing, and he reported that defendant fought with
him and then ran off.
After backup arrived and a perimeter was established with the aid from the
California Highway Patrol and Madera Police Department, Bangerter returned to the
residence to talk to Maria. She brought out a 20-gauge shotgun from the house and
handed it to him.
Rodriguez spoke with Maria and her sister, I.P., who also lived in the house. Both
were upset, and Maria was crying. Maria told Rodriguez she was in bed with the children
when defendant entered and pointed a gun at her. Her sister then entered the room and
saw what was happening. Maria managed to dial 911 when defendant was distracted by
her sister, and she gave the phone to her niece to complete the emergency call. Maria
told Rodriguez that there were texts messages on defendant’s locked phone, which he left
behind in the house, stating he was going to kill her.4
Maria’s preliminary hearing testimony was read into the record. She stated that
she and defendant had been together for 13 years and lived together. On the night of the
4 Some of Corporal Rodriguez’s testimony regarding what Maria told him, which was very
brief, came in during recross-examination without any objection from the prosecutor. The trial
court admitted the remainder during redirect examination as, it appears, a prior consistent
statement. (Evid. Code, §§ 1236, 791.)
5.
incident, she was in bed with the children when defendant turned on the light, pointed a
gun at her, and said he was going to kill her. Defendant accused her of being with
someone else and not wanting to be with him anymore. Maria was afraid and
disappointed in him, and she feared the children would be hurt, but she did not know if
defendant would actually harm her. She testified they had argued that day and the
relationship was strained, but he only struck her one time, approximately a year earlier.
II. Defense Case
Defendant admitted he had a prior conviction for an incident of domestic violence.
He denied he threatened Maria that night or had a weapon. He said they exchanged
words regarding her phone, and he last saw the gun about 10 days earlier.
Regarding the incident with Bangerter, defendant testified that when he exited the
house the first time, he saw Bangerter and went back inside to ask why the police were
there and who called them. He stated that after he came back out, Bangerter did not
allow him to speak and did not tell him anything about following instructions.
DISCUSSION
I. Admission of Maria’s Preliminary Hearing Testimony
A. Background
Maria testified during the preliminary hearing held on February 21, 2020.5 At the
time, she was still living at the Madera property, where she had lived for 13 years. After
the prosecutor asked her several questions, she stated she did not want to testify, but she
cooperated when the trial court ordered her to do so.
Jury trial was scheduled for April 28th. On April 20th, trial was continued to
June 9th, and on May 18th, trial was continued to June 30th. On June 19th, the
prosecutor filed motions in limine and a witness list that included Maria and her sister,
5 All further date references in part I. of the Discussion are to the year 2020.
6.
I.P., with a location of Madera, California. Trial commenced on June 30th, and after two
days of jury selection, there was a two-week break in the trial.
On day three of trial, July 14th, the trial court stated it was in receipt of the
prosecutor’s supplemental motion in limine to admit a transcript of Maria’s prior
testimony, filed the previous day. In the motion, the prosecutor stated that Maria had fled
the state and her location was unknown. Defendant objected on the ground that there was
no due diligence shown, and that Maria was not unavailable.
The next day, Manuel Ruiz, an investigative assistant with the district attorney’s
office, testified regarding his attempts to serve Maria. Ruiz testified that he previously
served Maria successfully at her residence in Madera, most recently on April 8th, in
advance of the trial then scheduled for April 28th. Subsequently, between May 19th and
July 13th, Ruiz made 15 attempts to serve Maria at her residence, all of which were
unsuccessful. Ruiz testified that no one was home, although it appeared people were
living there, and the black car he knew Maria drove was never there, day or night.
Neighbors confirmed Maria and I.P. lived there, however.
Between June 10th and July 11th, no service attempts were made, although Ruiz
was checking databases, which returned the Madera address. Ruiz began to ask
neighbors about Maria, and on or around July 10th, he learned from one that Maria had
moved more than a month before. On July 13th, Ruiz served I.P., and she told him that
Maria had moved to Oregon approximately one month earlier and was living with family
members. I.P. did not provide an address for Maria. During the course of attempting to
locate Maria, Ruiz searched three public databases utilized by the district attorney’s
office, but none provided an address for Maria other than the residence in Madera.
After taking the matter under submission, the trial court ruled that Maria was
unavailable and admitted the transcript of her preliminary hearing testimony.
Subsequently, prior to the commencement of evidence, defendant’s housing unit at the
jail was placed on quarantine for two weeks due to a COVID-19 outbreak. On
7.
August 10th, trial resumed, at which time defendant renewed his objection to the use of
Maria’s preliminary hearing testimony. He pointed out that due to the delay in trial, the
prosecutor had an additional four weeks to locate Maria, and he asked the court to
exclude her prior testimony. The trial court declined to change its previous ruling. The
court stated that Ruiz had confirmed Maria moved out of state and he did not locate her,
and the court noted that it would have been difficult to get Maria back to California in
such a short period of time.
Defendant claims the trial court erred in finding Maria was an unavailable witness
because the prosecutor failed to exercise due diligence in attempting to locate her.
Specifically, defendant faults the prosecutor for failing to again attempt service at the
Madera residence and check the databases between mid-July and mid-August, when trial
resumed after the jail quarantine ended. He also argues that to the extent the trial court
assumed Maria’s location in Oregon rendered her unavailable, it engaged in speculation
and its conclusion was error under the law given the availability of the Uniform Act
(§ 1334 et seq.) to attempt to compel an out-of-state witness’s attendance. (See People v.
Cogswell (2010) 48 Cal.4th 467, 474–475 [discussing Uniform Act].)
The People, relying on the California Supreme Court’s decisions in Fuiava and
Wilson as analogous, contend there was no error. (People v. Fuiava (2012) 53 Cal.4th
622 (Fuiava); People v. Wilson (2005) 36 Cal.4th 309 (Wilson).)
Following our independent review of the record (Sanchez, supra, 63 Cal.4th at
p. 440), we conclude that the prosecutor failed to meet his burden of demonstrating due
diligence and, therefore, the trial court erred when it found Maria unavailable and
admitted her preliminary hearing testimony. Because Maria’s testimony was critical to
defendant’s conviction on count 1, the error was prejudicial and requires reversal of the
conviction for attempted criminal threats.
8.
B. Legal Standard
The applicable legal standard is well established. “A criminal defendant has the
right under both the federal and state Constitutions to confront the witnesses against him.
(U.S. Const., 6th Amend.; Cal. Const., art. I, § 15.) This right, however, is not absolute.
The high court [has] reaffirmed the long-standing exception that ‘[t]estimonial statements
of witnesses absent from trial have been admitted only where the declarant is unavailable,
and only where the defendant has had a prior opportunity to cross-examine.’ (Crawford
v. Washington (2004) 541 U.S. 36, 59; see People v. Cromer (2001) 24 Cal.4th 889, 892
[(Cromer]).) Evidence Code section 1291 codifies this traditional exception. (People v.
Alcala (1992) 4 Cal.4th 742, 784–785.) When the requirements of Evidence Code
section 1291 are met, ‘admitting former testimony in evidence does not violate a
defendant’s right of confrontation under the federal Constitution. [Citations.]’ (People v.
Mayfield (1997) 14 Cal.4th 668, 742.)
“Evidence Code section 1291, subdivision (a)(2), provides that former testimony
is not rendered inadmissible as hearsay if the declarant is ‘unavailable as a witness,’ and
‘[t]he party against whom the former testimony is offered was a party to the action or
proceeding in which the testimony was given and had the right and opportunity to cross-
examine the declarant with an interest and motive similar to that which he has at the
hearing.’ In turn, Evidence Code section 240, subdivision (a)(5), states a declarant is
‘unavailable as a witness’ if the declarant is ‘[a]bsent from the hearing and the proponent
of his or her statement has exercised reasonable diligence but has been unable to procure
his or her attendance by the court’s process.’” (Wilson, supra, 36 Cal.4th at pp. 340–
341.)
“In a criminal case, the prosecution bears the burden of showing that the witness is
unavailable and, additionally, that it made a ‘good-faith effort’ (Barber v. Page (1968)
390 U.S. 719, 725) or, equivalently, exercised reasonable or due diligence to obtain the
witness’s presence at trial.” (Sanchez, supra, 63 Cal.4th at p. 440, citing Cromer, supra,
9.
24 Cal.4th at p. 892 & People v. Valencia (2008) 43 Cal.4th 268, 291–292.) “‘[T]he term
“due diligence” is “incapable of a mechanical definition,” but it “connotes persevering
application, untiring efforts in good earnest, efforts of a substantial character.”’ (Cromer,
supra, 24 Cal.4th at p. 904.) Relevant considerations include the timeliness of the search,
the importance of the witness’s testimony, and whether leads were competently explored.
(Ibid.) The reviewing court defers to the trial court’s determination of the historical facts
if supported by substantial evidence, but it reviews the trial court’s ultimate finding of
due diligence independently, not deferentially.” (Sanchez, supra, 63 Cal.4th at p. 440,
citing People v. Bunyard (2009) 45 Cal.4th 836, 851 (Bunyard) & Cromer, supra, at
pp. 900–901.)
C. Analysis
1. Error
As an initial matter, the People correctly contend that “‘[t]he prosecution is not
required “to keep ‘periodic tabs’ on every material witness in a criminal case .…”’”
(People v. Friend (2009) 47 Cal.4th 1, 68, quoting Wilson, supra, 36 Cal.4th at p. 342.)
However, “when there is knowledge of ‘a “substantial risk”’ that an ‘“important witness
would flee,”’ the prosecutor is required to ‘“take adequate preventative measures” to stop
the witness from disappearing.’” (People v. Friend, supra, at p. 68, quoting Wilson,
supra, at p. 342.)
Maria stated at the preliminary hearing that she did not want to testify, but she did
so when ordered by the court. Almost two months later, on April 8th, Ruiz succeeded in
serving Maria at her Madera residence in advance of jury trial then set for the end of
April. At this point, nothing in the record suggests the prosecutor should have been on
notice of a substantial risk Maria would flee and defendant does not contend otherwise.
The trial date was subsequently continued first to June 9th and then to June 30th.
Between May 19th and June 10th, Ruiz attempted to serve Maria on 12 occasions,
without success. The Madera residence appeared occupied, but no one was home,
10.
Maria’s car was not there, and database checks did not reveal any other address for
Maria.
The prosecution only intended to call four witnesses, Deputy Bangerter, Corporal
Rodriguez, Maria, and I.P. Maria’s testimony, as the victim, was critical to proving the
criminal threats charge. (§ 422, subd. (a); People v. Choi (2021) 59 Cal.App.5th 753, 761
[setting forth elements, which include actual fear for safety caused by threat].) For this
reason, Ruiz’s inability to serve Maria by mid-June, despite 12 attempts at her known
address, should have been cause for concern for the prosecutor. As discussed below, a
prosecutor does not have to exhaust every possible informational avenue, but he or she
must make more than a perfunctory attempt to locate the witness. In this case, for
example, defendant and Maria shared two school-aged children, but there is no evidence
in the record that any attempt was made to check their enrollment in school locally,
which might have confirmed Maria’s continued presence in Madera and allowed for her
location. Further, the prosecutor did not present any evidence regarding attempts to reach
Maria by telephone or to involve additional law enforcement in the search. There is also
no evidence regarding whether Maria was employed and, if so, whether any attempt was
made to contact her at work.
Following his unsuccessful June 10th attempt, Ruiz next attempted to serve Maria
on July 10th, during the two-week break between day two and day three of trial, prior to
the commencement of evidence. It appears it was at this point Ruiz first obtained
information that Maria had moved out of state. Three days later, I.P. told Ruiz that Maria
was living with relatives in Oregon.
During the hearing on the prosecutor’s motion to admit Maria’s prior testimony,
the trial court asked, “They were unable to give you an address in Oregon?” Ruiz
responded, “She didn’t give me an address, no, Your Honor.” It is unclear from this
exchange whether Ruiz asked I.P. for the address and she refused to provide it, or
whether she simply did not volunteer it. Further, there is no evidence that Ruiz asked
11.
with which relatives Maria was living in Oregon, for the relatives’ names, or for a
telephone number to reach Maria. Given that Maria and I.P. are sisters who lived
together at the Madera property, and that I.P. personally provided the information that
Maria was living with family members in Oregon, this lapse is particularly notable.
It is possible that additional avenues were explored, and deficiencies simply lie
with the record made. We note that in his supplemental motion in limine, the prosecutor
stated Maria refused to return phone calls or provide a current address, and “multiple
members” of her family told Ruiz she fled and was living at an unknown address.
However, there was no testimony to this effect and the prosecutor did not introduce any
evidence other than Ruiz’s testimony. As such, we cannot tell whether the prosecutor
overstated his case in the motion or instead failed to make an adequate record at the
hearing. (People v. Saelee (2018) 28 Cal.App.5th 744, 755 [statements of fact and
arguments in court filing not evidence]; accord, Hebberd-Kulow Enterprises, Inc. v.
Kelomar, Inc. (2013) 218 Cal.App.4th 272, 283.) Whatever the explanation, the burden
of proof rested with the prosecutor.
“‘The purpose of the due diligence requirement is to ensure that the prosecution
has made all reasonable efforts to procure the presence of the witness before the
defendant is denied the opportunity to confront him’” (Bunyard, supra, 45 Cal.4th at
p. 853), and the importance of the witness’s testimony bears on the evaluation of
reasonableness (People v. Wilson (2021) 11 Cal.5th 259, 293; Sanchez, supra, 63 Cal.4th
at p. 442; Fuiava, supra, 53 Cal.4th at pp. 676–677). Maria’s testimony was not
cumulative of other evidence nor did her testimony relate to a collateral matter. To the
contrary, the prosecutor’s ability to prove count 1 rested on Maria’s testimony, and the
prosecutor was on notice by early June that Ruiz had repeatedly attempted to serve her
without success. Despite the fact Maria was one of only four witnesses the prosecutor
intended to call and her testimony was critical, there is no evidence in the record that any
steps were taken beyond visits to the Madera residence and database searches. (See
12.
Sanchez, supra, at p. 442 [“In a case … with dozens of witnesses, there is a limit to what
one can expect the prosecution to do to procure the attendance of a noncritical
witness.”].)
In July, Ruiz obtained information that Maria was living with relatives in Oregon,
but as previously set forth, there is no evidence he asked any follow-up questions.
Specifically, the record does not contain evidence that I.P., who was in a position to
know where Maria was, refused to provide any further information on Maria’s specific
location or her contact information. The law does not require the prosecutor to perform
acts of futility (People v. Herrera (2010) 49 Cal.4th 613, 630–631; People v. Smith
(2003) 30 Cal.4th 581, 611), but the failure to explore competent leads is relevant in
determining whether the prosecution, reasonably and in good faith, attempted to secure a
witness’s presence (Fuiava, supra, 53 Cal.4th at p. 677). Given the importance of
Maria’s testimony, the prosecution’s failure to take any steps beyond visiting the Madera
residence and checking databases, coupled with its subsequent failure to follow up on the
new information provided by I.P., does not suffice to demonstrate due diligence in
attempting to locate Maria. (Cromer, supra, 24 Cal.4th at pp. 903–904 [no due diligence
where “serious efforts to locate [witness] were unreasonably delayed, and investigation of
promising information was unreasonably curtailed”]; People v. Louis (1986) 42 Cal.3d
969, 992–993 [where prosecutor did not obtain and verify address where witness said he
would be staying, and keep him under surveillance, “failure to take such minimal action
plainly conflicts with the claim that the prosecution exercised due diligence”].)
The People rely on Fuiava and Wilson for support, but in Fuiava, the witness’s
testimony was not of critical importance and neither case involved a lead on the witness’s
location that was left unexplored. (Fuiava, supra, 53 Cal.4th at pp. 676–677; Wilson,
supra, 36 Cal.4th at pp. 341–342.) We find the California Supreme Court’s decision in
Cromer more instructive on the facts of this case. (Cromer, supra, 24 Cal.4th at pp. 892–
893, 905.)
13.
In Cromer, the defendant was charged with three counts of robbery with personal
use of a firearm, and the victim in the third count testified at the preliminary hearing, but
failed to appear for trial. (Cromer, supra, 24 Cal.4th at p. 893.) The high court found the
prosecutor failed to show due diligence where the investigators were told two days before
trial that the victim was living with her mother. (Id. at p. 904.) The prosecution waited
two more days before an investigator obtained the victim’s mother’s address from the
Department of Motor Vehicles and drove to her house. (Id. at pp. 903–904.) The
investigator was informed the victim did not live there and her mother was not home but
would be returning the next day. (Id. at p. 904.) The investigator left a subpoena for the
victim, but did not return, never spoke with the victim’s mother, and never tried to obtain
a work address or telephone number for the victim’s mother. (Ibid.)
More recently, the court summarized the caselaw as follows: “[I]n those cases in
which courts have not found adequate diligence, the efforts of the prosecutor or defense
counsel have been perfunctory or obviously negligent. [Citations.] On the other hand,
diligence has been found when the prosecution’s efforts are timely, reasonably extensive
and carried out over a reasonable period.” (Bunyard, supra, 45 Cal.4th at pp. 855–856,
italics added.)
The trial court perhaps had concerns regarding the prosecutor’s diligence in this
case, as it made a more complete record than that created by the parties through its own
questioning of Ruiz. However, it is incumbent on the prosecutor to make the requisite
showing of sufficient effort. “[T]he fact ‘additional efforts might have been made or
other lines of inquiry pursued does not affect [a finding of reasonable diligence],’” if
reasonable efforts to find the witness were employed. (People v. Royal (2019) 43
Cal.App.5th 121, 136, italics added, quoting People v. Cummings (1993) 4 Cal.4th 1233,
1298, abrogated on another ground by People v. Merritt (2017) 2 Cal.5th 819, 831;
accord, Fuiava, supra, 53 Cal.4th at p. 677; Wilson, supra, 36 Cal.4th at p. 342.) Here,
given the minimal efforts undertaken and what appears from the record to be a complete
14.
failure to pursue the new information obtained in July, balanced against the importance of
Maria’s testimony, the prosecutor fell short of meeting his burden and the trial court erred
in concluding otherwise.
2. Prejudice
The People do not argue that any error was harmless nor could they.
“‘“Confrontation clause violations are subject to federal harmless-error analysis under
Chapman v. California (1967) 386 U.S. 18, 24.” [Citation.] We ask whether it is clear
beyond a reasonable doubt that a rational jury would have reached the same verdict
absent the error.”’ (People v. Loy (2011) 52 Cal.4th 46, 69–70.)” (People v. Livingston
(2013) 53 Cal.4th 1145, 1159; accord, People v. Louis, supra, 42 Cal.3d at pp. 993–994.)
“‘The burden is on the beneficiary of the error “either to prove that there was no injury or
to suffer a reversal of his erroneously obtained judgment.”’” (People v. Louis, at
pp. 993–994, quoting People v. Stritzinger (1983) 34 Cal.3d 505, 520; accord, People v.
Wycoff (2021) 12 Cal.5th 58, 93.)
Maria’s testimony was crucial to proving count 1. Other than Maria, Deputy
Bangerter, and Corporal Rodriguez, the prosecutor intended to call I.P. However, I.P. not
only failed to appear for trial, but she was not a victim, which left only Maria’s
preliminary hearing testimony supporting defendant’s conviction for attempted criminal
threats. Thus, the error in admitting Maria’s prior testimony was clearly prejudicial and
defendant’s conviction on count 1 must be reversed.
II. Instructional Error
With respect to count 2, defendant claims the trial court erred when it refused his
request to instruct the jury on resisting an officer without force or violence under
section 148, subdivision (a)(1), as a lesser included offense of section 69, subdivision (a).
The People contend that there was no error because the instruction was not supported by
substantial evidence. As set forth below, the trial court’s reasoning for denying the
15.
request was incorrect, but, as the People state, there was not substantial evidence to
support the instruction and, therefore, no error.
A. Legal Standard
“‘A trial court must instruct the jury on a lesser included offense, whether or not
the defendant so requests, whenever evidence that the defendant is guilty of only the
lesser offense is substantial enough to merit consideration by the jury.’ (People v.
Halvorsen (2007) 42 Cal.4th 379, 414, fn. omitted.) The obligation to give an instruction
on lesser included offenses exists even when a defendant expressly objects to it. (People
v. Souza (2012) 54 Cal.4th 90, 114.)” (People v. Nieves (2021) 11 Cal.5th 404, 463.)
We review the trial court’s decision de novo. (People v. Nieves, supra, 11 Cal.5th
at p. 463; accord, People v. Licas (2007) 41 Cal.4th 362, 366.)
B. Analysis
1. Section 148 a Lesser Included Offense of Section 69 Under
Accusatory Pleading Test
“‘[A] lesser offense is necessarily included in a greater offense if either the
statutory elements of the greater offense, or the facts actually alleged in the accusatory
pleading, include all the elements of the lesser offense, such that the greater cannot be
committed without also committing the lesser. [Citations.]’ (People v. Birks (1998) 19
Cal.4th 108, 117–118.)” (People v. Licas, supra, 41 Cal.4th at p. 366.) Section 69,
subdivision (a), can be violated in two separate ways, and section 148, subdivision (a)(1),
is a lesser included offense under one of the two ways. (People v. Smith (2013) 57
Cal.4th 232, 242 (Smith); accord, People v. Kruse (2020) 56 Cal.App.5th 1034, 1044.)
Section 69 provides, in relevant part, “Every person who attempts, by means of
any threat or violence, to deter or prevent an executive officer from performing any duty
imposed upon the officer by law, or who knowingly resists, by the use of force or
violence, the officer, in the performance of his or her duty, is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h)
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of Section 1170, or in a county jail not exceeding one year, or by both such fine and
imprisonment.” (Id., subd. (a), italics added.)
Section 148 provides, in relevant part, “Every person who willfully resists, delays,
or obstructs any public officer, peace officer, or an emergency medical technician, as
defined in Division 2.5 (commencing with Section 1797) of the Health and Safety Code,
in the discharge or attempt to discharge any duty of his or her office or employment,
when no other punishment is prescribed, shall be punished by a fine not exceeding one
thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or
by both that fine and imprisonment.” (§ 148, subd. (a)(1).)
In Smith, the California Supreme Court explained that section 148,
subdivision (a)(1), is a lesser included offense of section 69 violated the second way, but
not the first way (Smith, supra, 57 Cal.4th at pp. 241–242), and where the accusatory
pleading alleges section 69 was violated the second way, section 148, subdivision (a)(1),
is a lesser included offense (Smith, supra, at pp. 242–243). In this case, the information
alleged defendant committed a violation of section 69 in both ways, but the prosecutor
proceeded only on the theory that defendant violated the statute the second way,
knowingly resisting an officer by use of force or violence, and the jury was instructed
only on that theory, in accordance with CALCRIM No. 2652.
The court denied defendant’s request for an instruction on section 148,
subdivision (a)(1), on the ground it was not a lesser included offense of section 69. This
was incorrect under the circumstances of this case (Smith, supra, 57 Cal.4th at p. 242),
but “‘“we review the ruling, not the court’s reasoning and, if the ruling was correct on
any ground, we affirm.”’” (People v. Brooks (2017) 3 Cal.5th 1, 39.)
2. Instruction Not Supported by Substantial Evidence
There is no duty “to instruct the jury on a necessarily included lesser offense
‘“when there is no evidence that the offense was less than that charged.”’” (Smith, supra,
57 Cal.4th at p. 245, quoting People v. Breverman (1998) 19 Cal.4th 142, 154.)
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Substantial evidence supporting the instruction means “‘“‘evidence that a reasonable jury
could find persuasive’” [citation], which, if accepted, “‘would absolve [the] defendant
from guilt of the greater offense’ [citation] but not the lesser” [citation].’ (People v. Cole
(2004) 33 Cal.4th 1158, 1218.)” (People v. Licas, supra, 41 Cal.4th at p. 366.)
Only Deputy Bangerter and defendant testified regarding the interaction between
them. Bangerter described in detail the physical struggle between the two, his attempts to
gain control over and detain defendant, and defendant’s actions in attempting to break
away, encircling Bangerter’s waist, and attempting to knock Bangerter off his feet.
Bangerter testified he lost his glasses during the struggle, his radio microphone was
dislodged and knocked out of his reach, and he tore a tendon in his wrist, causing him to
miss work for the month of November 2019. Although Corporal Rodriguez did not
witness the struggle, he testified that when he arrived, Bangerter was disheveled, his
eyeglasses were missing, and his radio was askew.
When defendant testified, he admitted he saw Bangerter and knew Bangerter was
a law enforcement officer. He denied he threatened Maria that night or had a firearm, but
with respect to his contact with Bangerter, he testified only that Bangerter did not give
him the opportunity to speak and did not tell him to follow instructions. Defendant did
not otherwise offer any testimony regarding their interaction or his actions.
Under these circumstances, there was not substantial evidence that defendant
committed only the lesser included offense of resisting an officer without force or
violence. If the jury credited Bangerter’s testimony, which the verdict reflects it did,
defendant necessarily resisted with force or violence. Defendant argues that his “alleged
violence or force was ambiguous,” and whether or not the evidence “rose from the level
of passive resistance to the element of force was a question for the jury.” However,
“‘[s]peculation is an insufficient basis upon which to require the giving of an instruction
on a lesser offense.’” (People v. Westerfield (2019) 6 Cal.5th 632, 717.) “‘“‘“Substantial
evidence is evidence sufficient to ‘deserve consideration by the jury,’ that is, evidence
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that a reasonable jury could find persuasive.”’” [Citation.]’” (Ibid.) Accordingly, we
reject defendant’s claim that the trial court’s failure to instruct the jury on section 148,
subdivision (a)(1), was error, and we need not consider his argument of prejudice.
III. Credit Calculation Error
Next, the parties agree that the trial court erred when it only awarded defendant
four days of actual custody credit and four days of conduct credit, for a total of eight
days. They also agree that defendant is entitled to 49 additional days of actual credit.
Based on the record, we concur that there appears to be a calculation error. It also
appears that the parties’ figure includes the four days of actual credit already awarded by
the trial court and that defendant may be entitled to additional conduct credit. Given the
incomplete record on the matter, discussed next, remand for recalculation is required.
A. Procedural Background
Defendant was arrested on November 3, 2019, and sentenced to state prison in this
case on September 18, 2020. In between those dates, on June 29, 2020, he was sentenced
to 180 days in jail in Madera Superior Court case No. CCR0610936 and to a consecutive
term of 364 days in jail in case No. MCR061451, for a total of 544 days.
The probation report listed the sentencing date as September 20, 2020, with
323 days of actual credit and 322 days of conduct credits, for a total of 645 days. This
was error given that sentencing occurred on September 18, 2020. The supplemental
probation report prepared eight days later provided that defendant was entitled to four
days of actual credit and four days of conduct credit in this case, for a total of eight days
for the period of November 3, 2019, through November 6, 2019. The report attributed
the remaining credits for the period of November 7, 2019, to September 10, 2020, to case
No. MCR061451. In addition to the erroneous sentencing date, defendant was only
sentenced to 364 days in case No. MCR061451, leaving excess credits remaining.
6 Further references to case numbers are to Madera Superior Court case numbers.
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Trial counsel brought the calculation error to the trial court’s attention, stating that
defendant should have approximately 100 days of credit available to apply in this case.
The court disagreed and credited defendant only the aforementioned eight days. Counsel
did not pursue the matter and apparently did not follow up with a modification request
after sentencing, as invited by the court.
B. Remand Required for Recalculation
“‘Penal Code section 2900.5 imposes on the sentencing court the obligation to
determine the number of days of custody and, in those cases to which it expressly
applies, conduct credit to which the defendant is entitled .…’” (People v. Superior Court
(Frezier) (2020) 54 Cal.App.5th 652, 660–661, quoting People v. Sage (1980) 26 Cal.3d
498, 508–509.) “Under section 4019, ‘[i]n addition to actual credit … detainees in local
institutions are usually able to earn credit against their eventual sentence for good
behavior and work performed.’” (Frezier, supra, at p. 661, quoting People v. Brown
(2020) 52 Cal.App.5th 899, 902–903.) Relevant in this case, these conduct credits are
available for those inmates confined in county jail from the date of arrest to imposition of
sentence for a felony conviction and for those misdemeanants serving a jail sentence.
(§ 4019, subd. (a)(1); People v. Sage, supra, at pp. 503–504.) “[F]or each four-day
period in which a prisoner is confined and has been on good behavior, the prisoner will
receive two days of conduct credits (§ 4019, subds. (b), (c); see also People v. Dieck
(2009) 46 Cal.4th 934, 939, fn. 3),” and “‘a term of four days will be deemed to have
been served for every two days spent in actual custody.’ (§ 4019, subd. (f).)” (Frezier,
supra, at p. 661, fn. omitted.)
We observe that “[s]ection 2933.1, subdivision (c), … limits presentence conduct
credit ‘[n]otwithstanding Section 4019 or any other provision of law’ to ‘15 percent of
the actual period of confinement’ where a defendant is convicted of a felony offense
listed in subdivision (c) of section 667.5.” (People v. Jacobs (2013) 220 Cal.App.4th 67,
79; accord, In re Mallard (2017) 7 Cal.App.5th 1220, 1225–1226; People v. Andrade
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(2015) 238 Cal.App.4th 1274, 1310–1311.) Although not mentioned in the probation
report or by the parties on appeal, defendant’s felony conviction in count 1 for attempted
criminal threats, now reversed, qualified as a violent felony by virtue of the firearm
enhancement under section 12022.5. (§ 667.5, subd. (c)(8); People v. Ramos (1996) 50
Cal.App.4th 810, 815.) This limitation is potentially relevant to a future credit
recalculation, depending on the People’s election regarding count 1 and the subsequent
outcome.
The parties here agree that defendant was entitled to 321 days of actual credit and
the probation report reflected entitlement to full conduct credit, which, based on
correction to the sentencing date, was 320 days. Defendant was sentenced to a total of
544 days in jail in cases Nos. CCR061093 and MCR061451, and the trial court credited
him a total of eight days in this case. Assuming entitlement to full conduct credit, it
appears defendant may be entitled to an additional 89 days of credit in this case.
However, it also appears defendant may have had at least one other matter pending, case
No. MCR064858. It is unclear what effect, if any, that may have had on the trial court’s
credit calculation, and we cannot discern from the record whether there may be other
limitations relevant to an award of credits in this case. Therefore, while we accept the
People’s concession of error in this case, remand is required for recalculation.
IV. Abstract of Judgment
Finally, “[a]ny discrepancy between the judgment as orally pronounced and as
recorded in the clerk’s minutes or abstract of judgment is presumed to be the result of
clerical error.” (People v. Leon (2020) 8 Cal.5th 831, 855, citing People v. Mesa (1975)
14 Cal.3d 466, 471.) We may order correction on review. (People v. Mitchell (2001) 26
Cal.4th 181, 185, citing In re Candelario (1970) 3 Cal.3d 702, 705.)
The parties agree, and our review confirms, that the minute order from the
sentencing hearing and the abstract of judgment incorrectly reflect, one, imposition of a
firearm enhancement under subdivision (b) of section 12022.5 rather than subdivision (a)
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and, two, imposition of a $750 presentence report fee. The error as to the firearm
enhancement subdivision is moot in light of the reversal on count 1. As for the now-
repealed $750 presentence report fee, which was not imposed in this case, the trial court
shall correct its records and amend the abstract of judgment to omit the fee.
DISPOSITION
Defendant’s conviction on count 1 for attempted criminal threats with an attached
firearm enhancement is reversed and the matter is remanded for further proceedings. If,
after the filing of the remittitur in the trial court, the People do not bring defendant to
retrial on count 1 within the time limit of section 1382, subdivision (a)(2), the trial court
shall resentence defendant on count 2. At the appropriate juncture depending on the
People’s election and any further proceedings, the trial court must recalculate the
presentence credits due defendant, and forward an amended abstract of judgment to the
appropriate authorities omitting the $750 presentence report fee.
MEEHAN, J.
WE CONCUR:
LEVY, Acting P. J.
DeSANTOS, J.
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