Tag Archives: Prejudice

Abstracts and Minutes, Sentencing, Sixth Amendment

Case: 000373

Posted on by Gary McCurdy

Error and/or relief

The trial court erred when it imposed the upper term based on aggravating facts that did not conform with the jury trial requirements under section 1170(b).

First Holding:

The Sixth Amendment provides that those accused of a crime have the right to a trial by an impartial jury. This right, in conjunction with the due process clause, requires that each element of a crime be proved to the jury beyond a reasonable doubt. Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.

Authority:

Apprendi v. New Jersey (2000) 530 U.S. 466, 476

People v. Lynch (2024) 16 Cal.5th 730, 742

Cunningham v. California (2007) 549 U.S. 270, 281

Second Holding:

In 2022, section 1170(b) was amended to prohibit imposition of an upper term sentence unless aggravating circumstances justify that term and the facts underlying any such circumstance, other than a prior conviction, have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Section 1170(b)(3) states that the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury.

Authority:

PEN 1170

People v. Lynch (2024) 16 Cal.5th 730, 742

Third Holding:

In considering a prior conviction, a judge may do no more than determine what crime, with what elements, the defendant was convicted of. Any fact, beyond the bare fact of a prior conviction, that exposes a defendant to harsher punishment, must be found by a jury beyond a reasonable doubt, unless the defendant stipulates to its truth or waives a jury trial. Only when aggravating facts have been proven as the Constitution requires may the court then rely on them to conclude, in its discretion, that those facts justify an upper term.

Absent an admission or a jury trial waiver, a trial court cannot determine whether a defendant’s prior convictions were of increasing seriousness or that his probation or parole performance was poor. The defendant is entitled to a jury trial on all aggravating facts, other than the bare fact of a prior conviction and its elements, that expose the defendant to imposition of a sentence more serious than the statutorily provided midterm.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1083-1086

Erlinger v. United States (2024) 602 U.S. 82

Fourth Holding:

When a defendant is deprived of a jury trial on aggravating facts used to justify imposition of an upper term sentence, the reviewing court must apply the Chapman standard of review. A sentence imposed under section 1170(b)] must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Chapman v. California (1967) 386 U.S. 18

Fifth Holding:

Although the minute order indicates defendant entered into a valid waiver to a jury trial, the reporter’s transcript does not reflect that the trial court advised defendant of his right to a jury trial and did not obtain a valid and informed waiver of that right. The People concede the court erred by not obtaining defendant’s waiver to a jury trial or stipulation to the aggravating facts. We agree that the court erred when it found both aggravating facts true without obtaining defendant’s stipulation or waiver of his right to a jury trial.

Authority:

People v. Sivongxxay (2017) 3 Cal.5th 151, 169 [defendant’s waiver of the right to jury trial must be expressed in words and will not be implied from a defendant’s conduct]

People v. Washington (1949) 95 Cal.App.2d 454, 458–459 [a defendant’s waiver of the right to jury trial must be personally expressed in open court; an entry in the clerk’s minutes is not enough]

Discretion, Standard of review

Case: 000371

Posted on by Gary McCurdy

Error and/or relief

The trial court improperly denied the defendant’s request for pretrial mental health diversion under Penal Code section 1001.36 by applying the wrong standard in determining that he did not satisfy the statute’s public safety requirement. Accordingly, we conditionally reverse the judgment and remand to the trial court.

First Holding:

A trial court may grant a defendant pretrial mental health diversion if the defendant has a qualifying mental health disorder. The court has discretion to grant pretrial diversion if the defendant satisfies the eligibility requirements for pretrial diversion set forth in the statute and the court finds that the defendant is suitable for that diversion under the factors set forth in the statute. A defendant is eligible for pretrial diversion if (1) the defendant has been diagnosed with a qualifying mental disorder; and (2) the defendant’s mental disorder was a significant factor in the commission of the charged offense.

Authority:

PEN 1001.36

People v. Frahs (2020) 9 Cal.5th 618, 626–627

Second Holding:

For any defendant who satisfies the eligibility requirements, the court must then find the defendant is suitable for pretrial diversion if all the following criteria are met: (1) In the opinion of a qualified mental health expert, the defendant’s symptoms of the mental disorder causing, contributing to, or motivating the criminal behavior would respond to mental health treatment; (2) The defendant consents to diversion and waives the defendant’s right to a speedy trial; (3) The defendant agrees to comply with treatment as a condition of diversion; (4) The defendant will not pose an unreasonable risk of danger to public safety, as defined in section 1170.18, if treated in the community.

Authority:

PEN 1001.36(c)

Third Holding:

Section 1170.18, in turn, defines “unreasonable risk of danger to public safety” as an unreasonable risk that the petitioner will commit a new violent felony within the meaning of section 667(e)(2)(C)(iv). Thus, a trial court must determine whether the defendant is likely to commit an offense known colloquially as a “super strike.” Qualifying super strikes include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.

Authority:

PEN 1170.18(c)

PEN 667(e)(2)(C)(iv)

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1149, 1150-1151

People v. Bunas (2022) 79 Cal.App.5th 840, 851, fn. 11

Fourth Holding:

Mental health diversion is discretionary, not mandatory, even if all the requirements are met. But this residual discretion must be exercised consistently with the principles and purpose of the law, which includes a strong legislative preference for treatment of mental health disorders because of the benefits of such treatment to both the offending individual and the community.

Authority:

PEN 1001.36(a)

PEN 1001.35

People v. Gerson (2022) 80 Cal.App.5th 1067, 1080

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 892–893

Fifth Holding:

We review a trial court’s ruling on a petition for pretrial mental health diversion for abuse of discretion. A court abuses its discretion when it makes an arbitrary or capricious decision by applying the wrong legal standard, or bases its decision on express or implied factual findings that are not supported by substantial evidence.

Authority:

People v. Whitmill (2022) 86 Cal.App.5th 1138, 1147

People v. Moine (2021) 62 Cal.App.5th 440, 448–449

Sixth Holding:

The trial court’s comments, coupled with the fact the court did not expressly find a likelihood that the defendant would commit a super strike, suggest the court was expanding the meaning of “public safety” in section 1001.36 beyond the likelihood that the defendant will commit a limited subset of violent felonies. This was improper.

Authority:

People v. Moine (2021) 62 Cal.App.5th 440, 450

Sarmiento v. Superior Court (2024) 98 Cal.App.5th 882, 896–897 [trial courts cannot create an alternative meaning of ‘public safety’ inconsistent with sec. 1001.36(c)(4)]

Seventh Holding:

We do not find the Watson standard of prejudice applicable here. Under the Watson test, an error is harmless unless it is reasonably probable the outcome would have been different in the absence of the error. The Watson standard is appropriate in circumstances where the trial court understood the nature of its discretion but, for example, relied on an improper factor in exercising that discretion or failed to state its reasoning. It does not apply where the court was unaware of the extent of its lawful authority in a particular context, because determining what choice the trial court is likely to make in the first instance is far more speculative.

Because the record suggests the trial court did not understand that its discretion in deciding the defendant’s motion was constrained by section 1001.36’s narrow definition of public safety, we cannot be confident that the court was aware of the scope of its discretion under section 1001.36. Defendants are entitled to decisions made in the exercise of the informed discretion” of the court. A court that is unaware of the scope of its discretionary powers cannot exercise that informed discretion. The appropriate remedy in such circumstances is to remand unless the record clearly indicates that the trial court would have reached the same conclusion even if it had been aware that it had such discretion. The Watson standard is thus inapplicable.

Authority:

People v. Watson (1956) 46 Cal.2d 818, 836

People v. McDaniels (2018) 22 Cal.App.5th 420, 426

In re F.M. (2023) 14 Cal.5th 701, 716

People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

People v. Doron (2023) 95 Cal.App.5th 1, 9–10 [concluding remand was required under Gutierrez where trial court did not apply correct standard in denying defendant’s motion for mental health diversion]

People v. Lynch (2024) 16 Cal.5th 730, 774 [Gutierrez standard applied where trial court was unaware that its discretion to select a prison sentence was constrained by a presumption against the upper term]

Sentencing, Sixth Amendment, Standard of review

Case: 000365

Posted on by Gary McCurdy

Error and/or relief

We affirm the conviction. The defendant is entitled to remand for resentencing under AB 518 because of the amendment to section 654, which formerly required the trial court to select as the principal term the offense with the longest potential sentence; and under SB 567 because the trial court imposed an upper term for the attempted murder of the victim based on unpleaded and unproven aggravating factors.

First Holding:

In addressing a claim of insufficient evidence to support a conviction, this court reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. If the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.

Although it is the jury’s duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant’s guilt beyond a reasonable doubt. Reversal for insufficiency of the evidence is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support the conviction. We review the sufficiency of the evidence to support a firearm enhancement using the same standard we apply to a conviction.

Authority:

People v. Jackson (2016) 1 Cal.5th 269, 345

People v. Campbell (2020) 51 Cal.App.5th 463, 484

People v. Manriquez (2005) 37 Cal.4th 547, 577

People v. Bryant (2011) 191 Cal.App.4th 1457, 1472

Second Holding:

The ameliorative changes effected by AB 518 and SB 567 apply retroactively to defendant’s nonfinal judgment on appeal.

Authority:

People v. Fugit (2023) 88 Cal.App.5th 981, 995-996

People v. Mani (2022) 74 Cal.App.5th 343, 379

Third Holding:

Effective January 1, 2022, AB 518 amended section 654 to authorize trial courts to punish an act or omission that is punishable in different ways by different provisions of law under either of such provisions. Before the enactment of Assembly Bill No. 518, and when the trial court sentenced defendant, section 654 required the court to punish an act that was punishable in different ways by different laws only under the provision that provides for the longest potential term of imprisonment.

Thus, section 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence. Because the court imposed the sentence on count three on the basis that it had a longer maximum exposure than that of count four, as was required by section 654 at the time of sentencing, we will vacate the sentence and remand for a full resentencing hearing based on current law.

Authority:

People v. Mani (2022) 74 Cal.App.5th 343, 379

Fourth Holding:

Effective January 1, 2022, section 1170(b) was amended by SB 567. The amended statute created a presumption in favor of a low prison term when a defendant is under 26 years of age at the time of the offense. Section 1170(b)(6) provides that unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of specified factors was a contributing factor in the commission of the offense, including that the person is a youth, or was a youth as defined under section 1016.7(b) at the time of the commission of the offense.

Authority:

PEN 1170(b)(6)

PEN 1016.7

People v. Flores (2022) 73 Cal.App.5th 1032, 1038-1039

Fifth Holding:

Additionally, SB 567 amended section 1170(b)(2) to provide that a trial court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. With the exception of prior conviction allegations, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury’ and ‘established beyond a reasonable doubt. Under section 1170(b), a Sixth Amendment violation occurs when the trial court relies on unproven aggravating facts to impose an upper term sentence, even if some other aggravating facts relied on have been properly established.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 747

Sixth Holding:

A court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury, but the prior conviction exception to the Sixth Amendment permits a trial court to do no more than determine of what crime, with what elements, defendant was convicted

Authority:

PEN 1170(b)(3)

Erlinger v. United States (2024) 602 U.S. 821, 837-838

Seventh Holding:

Because the court did not apply the presumption in favor of a low term due to defendant’s youth, and imposed the upper term based on aggravating factors that had not been pleaded or found true beyond a reasonable doubt at trial by the jury, the court’s imposition of the upper term was improper. As we are already remanding for a full resentencing, we need not and do not consider whether the error was harmless beyond a reasonable doubt. But reliance on aggravating circumstances not found in accordance with section 1170(b) is prejudicial unless an appellate court can conclude beyond a reasonable doubt that a jury would have found true all of the aggravating facts relied upon by the trial court to justify an upper term sentence, or that those facts were otherwise proved true in compliance with the current statutory requirements.

Authority:

People v. Lynch (2024) 16 Cal.5th 730, 768

Eighth Holding:

At resentencing, the trial court must revisit all its sentencing choices in light of all applicable legislation. That includes, but is not limited to, AB 518, SB 567, and SB 81 (2021-2022 Reg. Sess.), which became effective January 1, 2022, and amended section 1385 to specify factors that the trial court must consider when deciding whether to strike enhancements from a defendant’s sentence in the interest of justice.

Authority:

PEN 654

PEN 1170

PEN 1385

People v. Valenzuela (2019) 7 Cal.5th 415, 424-425

People v. Sek (2022) 74 Cal.App.5th 657, 674

Discretion, Duty of the court, Effective assistance of counsel, Sentencing, Sixth Amendment

Case: 000353

Posted on by Gary McCurdy

Error and/or relief

The trial court violated the defendant’s Sixth Amendment rights by imposing a sentence based on aggravating circumstances that were neither admitted by him nor tried to a jury. The trial court conducted an inadequate inquiry when the defendant requested that new counsel be substituted.

[GARY NOTE: The unpublished opinion lays out several observations that it characterizes as possibly arguable deficiencies in counsel’s performance that would support a finding that it would be necessary to substitute new counsel as the defendant requested. Many of the specifics have been redacted from the filed opinion itself, as the Marsden hearing is a confidential inquiry conducted outside the presence of the prosecution and the public, and the matters stated by any participants (the defendant, the attorney for the defendant, the court) at the hearing are not subject to public disclosure.]

First Holding:

The defendant is entitled to resentencing because the trial court violated his Sixth Amendment rights by relying on aggravating circumstances based on facts that had not been admitted or tried to a jury. Although the defendant did not preserve this claim in the trial court, his failure to do so does not forfeit his Sixth Amendment right to a jury trial.

Authority:

People v. French (2008) 43 Cal.4th 36, 47-48

Second Holding:

In Cunningham, the United States Supreme Court held that, except for prior conviction allegations, the Sixth Amendment requires any fact that exposes a defendant to a greater potential sentence to be found by a jury beyond a reasonable doubt. The sentencing scheme in effect in California at the time violated the Sixth Amendment right to a jury trial because it allowed a defendant’s prison sentence to be increased beyond the statutory maximum based on facts that had not been found true beyond a reasonable doubt by a jury or admitted by the defendant. The statutory maximum, for Sixth Amendment purposes, is the maximum sentence the court may impose without finding any additional facts beyond those necessary to support the verdict. Cunningham explained that California could comply with the Sixth Amendment either by requiring jury findings for any facts necessary to impose an aggravated sentence or, alternatively, by authorizing sentencing courts to exercise broad discretion within a statutory range.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 281, 294

People v. Lynch (2024) 16 Cal.5th 730, 746-747

Third Holding:

California’s current sentencing scheme (in effect at the time of the defendant’s sentencing) adopts the first option Cunningham outlined. Under section 1170(b), when a statute specifies three possible terms, the court must order imposition of a sentence not to exceed the middle term unless there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term and the facts underlying those circumstances have been stipulated to by the defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. After revoking the defendant’s probation, the court found in aggravation that the crime involved great violence, great bodily harm, threats of great bodily harm, and other acts disclosing a high degree of cruelty, viciousness, or callousness. But this aggravating factor was not admitted or otherwise proved to the trier of fact.

Authority:

Cunningham v. California (2007) 549 U.S. 270, 294

People v. Lynch (2024) 16 Cal.5th 730, 748

Fourth Holding:

We apply the rigorous Chapman standard of review to determine whether the trial court’s reliance on unproven aggravating circumstances was prejudicial. Under that standard, the violation is prejudicial unless we can conclude, beyond a reasonable doubt, that a jury would have found true all the aggravating facts upon which the challenged sentence was based. The defendant is entitled to a remand for resentencing unless the appellate court can conclude that the omission of a jury trial was harmless beyond a reasonable doubt as to every aggravating fact the trial court used to justify an upper term sentence. Put another way, the defendant is entitled to a remand unless no reasonable jury would have found in favor of the defendant as to any of the aggravating facts relied upon by the trial court. In conducting this analysis, moreover, we may not assume that the record contains all the evidence that would have been presented had the aggravating circumstances been tried to a jury.

Authority:

Chapman v. California (1967) 386 U.S. 18

People v. Lynch (2024) 16 Cal.5th 730, 768, 775

People v. Wiley (2025) 17 Cal.5th 1069, 1087

Fifth Holding:

Further, because the court imposed an enhancement for great bodily injury under section 12022.7, it was improper to also rely on great bodily injury as a factor in aggravation for purposes of imposing the upper term, although that error is subject to harmless error analysis. The court could, without running afoul of section 1170(b)(5), rely on other aggravating circumstances independent of the great bodily injury enhancement, such as a finding that the offense involved great violence or reflected a high degree of cruelty, viciousness, or callousness.

Authority:

PEN 1170(b)(5) [a court cannot impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law]

Rules of Court, rule 4.421(a)(1)

People v. Gutierrez (1992) 10 Cal.App.4th 1729, 1735-1736

People v. Castaneda (1999) 75 Cal.App.4th 611, 614-615

Sixth Holding:

When a defendant requests that his appointed counsel be relieved and new counsel be appointed under Marsden, the trial court must give the defendant an opportunity to explain his concerns about his counsel’s performance and provide examples of deficiencies. The defendant is entitled to substitute counsel when the record clearly shows that the appointed counsel is not providing adequate representation. The trial court abuses its discretion when the defendant has shown that a failure to replace the appointed attorney would substantially impair the right to assistance of counsel. The trial court also abuses its discretion if it does not conduct an adequate inquiry into the defendant’s motion. When the defendant has identified shortcomings by counsel, the court must obtain counsel’s response and conduct any further inquiry that is needed to determine whether counsel had adequate explanations for all of the defendant’s complaints.

The critical factual inquiry in a Marsden hearing will often involve whether counsel consulted sufficiently with their client, adequately investigated the facts, and properly prepared for the relevant hearing. When the trial court’s inquiry is deficient, we remand the case for a new Marsden hearing. On this record, the trial court lacked an adequate basis to determine whether counsel had properly investigated and prepared the defendant’s mitigation case for the sentencing hearing. Likewise, we lack an adequate record to review the trial court’s denial of Marsden relief. On remand, the trial court should conduct a Marsden hearing to determine whether the defendant is entitled to substitute counsel for purposes of his resentencing.

Authority:

People v. Marsden (1970) 2 Cal.3d 118, 123-124

People v. Taylor (2010) 48 Cal.4th 574, 599

People v. Carter (2024) 15 Cal.5th 1092, 1099, 1102-1104

People v. Ng (2022) 13 Cal.5th 448, 500

People v. Abilez (2007) 41 Cal.4th 472, 488

People v. Ivans (1992) 2 Cal.App.4th 1654, 1666 [stating the trial court must make a careful inquiry before it can intelligently rule on the Marsden motion]

Duty of the court, Elements of crime, Jury instructions, Sentencing, Standard of review

Case: 000348

Posted on by Gary McCurdy

Error and/or relief

Remand is necessary for resentencing because the trial court determined one of the factors in aggravation against the defendant in violation of his constitutional right to a jury and relied on such determination in increasing his sentence. [Not error to fail to instruct on section 148 as lesser of section 69 because the jury necessarily relied on the force element of PC 69.]

First Holding:

It was error for the court to impose the upper term based on its own conclusion that the defendant’s prior convictions are numerous or of increasing seriousness. The right to a jury on any fact that increases the normal punishment for an offense derives from the Sixth Amendment to the United States Constitution.

Authority:

People v. Wiley (2025) 17 Cal.5th 1069, 1082

Erlinger v. United States (2024) 602 U.S. 821, 840

Second Holding:

A criminal defendant does not waive his constitutional right to a jury trial by failing to object when a court resolves issues to which the right attaches without first obtaining the requisite waivers. As to whether the error was harmless, because the right to a jury trial on the aggravating factors derives from the United States Constitution, we assess prejudice under the standard set forth in Chapman. Under the Chapman standard, a sentence imposed under section 1170(b) must be reversed and remanded unless the reviewing court concludes beyond a reasonable doubt that a jury, applying that same standard, would have found true all of the aggravating facts upon which the court relied to conclude the upper term was justified, or that those facts were otherwise proved true in compliance with the current statute.

Authority:

People v. French (2008) 43 Cal.4th 36, 47

People v. Holmes (1960) 54 Cal.2d 442, 443–444

Chapman v. California (1967) 386 U.S. 18

People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Lynch (2024) 16 Cal.5th 730, 761 [When the trial court actually relies on improperly proven aggravating facts to justify an upper term sentence, a Sixth Amendment violation occurs and Chapman must be satisfied.]

Third Holding:

Because a reasonable jury could have concluded the defendant’s convictions were not of increasing seriousness, we remand for resentencing without the need to consider their numerosity. Even if we were to reach the issue, we would likely have reasonable doubt a jury would have concluded the defendant’s prior convictions were numerous. Whether prior convictions are “numerous” for purposes of rule 4.421(b)(2) is not further defined in the California Rules of Court. A reasonable jury might consider numerosity in terms of the number of criminal episodes resulting n convictions, not in the number of convictions alone.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fourth Holding:

We review the trial court’s failure to instruct on a lesser included offense de novo considering the evidence in the light most favorable to the defendant.

Authority:

People v. Wright (2025) 113 Cal.App.5th 832, 847

Fifth Holding:

A trial court is obligated to instruct the jury on an uncharged lesser offense included in one charged if there is substantial evidence from which a reasonable juror could conclude the defendant committed the lesser, but not the greater, offense. Because this is a sua sponte obligation, a defendant may raise it for the first time on appeal. This instructional requirement prevents either party, whether by design or inadvertence, from forcing an all-or-nothing choice between conviction of the stated offense on the one hand, or complete acquittal on the other. Hence, the rule encourages a verdict, within the charge chosen by the prosecution, that is neither harsher nor more lenient than the evidence merits.

Authority:

People v. DePriest (2007) 42 Cal.4th 1, 50

People v. Brothers (2015) 236 Cal.App.4th 24, 29-30, 33, fn. 6

Sixth Holding:

The most significant difference between the lesser offense described in section 148(a)(1) and the greater offense described in section 69(a) is that a defendant may be convicted of the lesser offense even if he did not use force or violence to effectuate the resistance. Accordingly, the trial court was required to instruct on the lesser offense of section 148(a)(1) resisting if substantial evidence supported a finding that the defendant did not use force or violence when he resisted the deputies.

Authority:

People v. Brown (2016) 245 Cal.App.4th 140, 153

Seventh Holding:

Resisting an officer by force or violence under section 69(a) does not require either a threshold quantum of force or violence, or the use of force or violence upon the person of the officer. The statutory language does not, in other words, require the defendant to have actual physical contact with the officer. Thus, forceful resistance of an officer by itself gives rise to a violation of section 69, without proof force was directed toward or used on any officer. Here, there is no evidence the defendant did not use force in resisting arrest by the deputies. Under the facts here, there is no substantial evidence to show that only the lesser crime was committed. No reasonable juror could conclude the defendant’s physical resistance amounted to a violation of section 148(a)(1) but not of section 69(a). Therefore, the trial court was correct not to instruct the jury on section 148(a)(1).

Authority:

People v. Morgan (2024) 103 Cal.App.5th 488, 508, disapproved on another ground in People v. Wiley (2025) 17 Cal.5th 1069, 1087

People v. Carrasco (2008) 163 Cal.App.4th 978, 985-986 [where uncontradicted evidence was that the defendant struggled forcefully against arrest, instruction on section 148(a)(1) was unnecessary because there was no evidence on which a jury could conclude the defendant resisted without violating section 69(a)]