People v. Hoffman CA2/6

Filed 5/27/15 P. v. Hoffman CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. B254122 (Super. Ct. No. F493245) Plaintiff and Respondent, (San Luis Obispo County)

v.

CURTIS LAVERN HOFFMAN,

Defendant and Appellant.

Curtis Lavern Hoffman appeals a judgment following his conviction of resisting an executive officer (Pen. Code, § 69),1 a felony (count 1); public intoxication (§ 647, subd. (f)) (counts 2 and 6); resisting a peace officer (§ 148, subd. (a)(1)), a misdemeanor (counts 3 and 4); assault (§ 240), a misdemeanor (count 5); and unauthorized lodging (§ 647, subd. (e)) (count 7). The jury also found Hoffman had a prior conviction for making criminal threats. (§§ 422, 667, subd. (d), 1170.12 , subds. (b) & (c).) We conclude, among other things, that the trial court did not err by only instructing the jury on the offense of unlawfully using force or violence to resist an executive officer performing his duty (§ 69) on count 1. There was no substantial evidence to support an instruction on the lesser-included offense of misdemeanor resisting arrest (§ 148, subd. (a)(1)) on count 1. We affirm.

1 All statutory references are to the Penal Code.

FACTS The July 19th Arrest On the morning of July 19, 2013, Paul Nelson was walking his dogs near the Morro Shores Mobile Home Park when he heard Hoffman yell, "I'll kill that dog." Nelson responded, "I couldn't let you hurt my dog." Hoffman threw a beer bottle towards Nelson's head. Nelson contacted Sheriff Deputy Eduardo Castaneda. Nelson told Castaneda that Hoffman "was acting crazy" and he was in a "brushy area" near the mobile home park. No camping is allowed in this area and the park had periodically posted no trespassing signs. Castaneda testified he saw an aluminum can and a "big glass" bottle "fly out" toward Nelson. He asked Nelson to wait by the patrol car so that he could "attempt to contact" Hoffman who was inside "this brushy tree area." Castaneda located Hoffman who was "unsteady on his feet." Hoffman was "slurring his speech," and Castaneda smelled "a strong odor of alcohol." Castaneda attempted to arrest Hoffman "for being intoxicated in public." He asked Hoffman to get down on his knees. Hoffman refused. Castaneda pulled a Taser from his holster. Hoffman started to "go down to his knees" and Castaneda was able to handcuff him. They walked toward the patrol car for 10 to 15 feet. Hoffman then "dropped to his knees" and then pretended to make "a loud snoring sound." Hoffman refused to walk to the patrol car. Castaneda and another officer had to drag him through a sandy area for 75 yards toward the patrol car. Hoffman then walked to the patrol car and spit sand at the officers. The August 5th Arrest On the morning of August 5, 2013, Castaneda received a "disturbing-the- peace call" involving the area behind the Morro Shores Mobile Home Park. As he approached the area, he heard Hoffman yelling, "Get off my land" and "You're trespassing." Castaneda saw Hoffman near a tent. There were several empty beer bottles and beer cans on the ground. Hoffman was intoxicated. He ran into the tent and "attempted to zip up the front flap of the tent." Castaneda decided to arrest Hoffman for public intoxication and "illegal lodging."