California Court of Appeal Jul 29, 2021 No. E075692Unpublished
Filed 7/29/21 P. v. Molina CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E075692
v. (Super.Ct.No. FWV19003995)
ROBERT TICO MOLINA, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson
Uhler, Judge. Affirmed.
Michael C. Sampson, under appointment by the Court of Appeal, for Defendant
and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal, Collette C.
Cavalier and Ksenia Gracheva, Deputy Attorneys General, for Plaintiff and Respondent.
Responding to a domestic violence disturbance situation involving defendant and
appellant Robert Tico Molina and his estranged wife, D.M., who had a no-negative
1
contact order against defendant, Upland Police Officer Paul Song tried to diffuse the
situation. When Officer Song could not get defendant to calm down or sit, he fired his
taser at him but missed. Defendant laughed and called Song a “stupid ass bitch.” Song
tried to get defendant to put his hands behind his back and get down on the ground to be
handcuffed. Defendant turned around but did not go to the ground. When Song placed
his hand on defendant’s shoulder to push him to the ground, defendant tensed, and
pushed up. Song hit defendant two times on the shoulder with his baton in order to
handcuff him. Defendant was handcuffed and pulled to his feet. As Song and another
officer attempted to escort defendant downstairs, defendant used his shoulder to push
Song against the wall, causing Song’s body camera to fall off.
Defendant was convicted of resisting an executive officer by use of force and
violence (Pen. Code, § 69)1 and misdemeanor violating a domestic relations court order
(§ 273.6, subd. (a)). Defendant admitted he had suffered a prior serious or violent felony
conviction within the meaning of sections 667, subdivisions (b) through (i), and 1170.12,
subdivisions (a) through (d). Defendant was sentenced to four years to be served in state
prison.2
Defendant claims on appeal that (1) there was insufficient evidence presented to
support his conviction of resisting arrest based on Officer Song’s use of excessive force
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 Defendant was sentenced to 180 days in county jail for the misdemeanor with credit for time served.
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to effectuate the arrest; and (2) the trial court erred when it failed to instruct the jury on
the lesser included offense of simple assault.
FACTUAL BACKGROUND
D.M. was married to defendant and they had two daughters together. They did not
live together. On December 7, 2019, D.M. went to a motel in Upland where defendant
was staying to pick up their children. She and defendant got into an argument because he
wanted her to stay and spend time together as a family. D.M. just wanted to pick up her
children and leave. D.M. had a no-negative contact order against defendant.
Upland Police Officer Paul Song was on duty on December 7, 2019, when at
approximately 5:00 p.m., he was dispatched to a domestic violence disturbance call at the
Upland motel. When Officer Song arrived at the motel, D.M. was standing near her car
in the parking lot and she was in an argument with defendant, who was on the second
floor outside one of the motel rooms. One of their daughters (Doe) was standing by
defendant. Defendant was yelling down to D.M. “cunt” and she was yelling that she just
wanted Doe.
Officer Song tried to calm both of them down. Doe tried to walk to the stairs to
reach D.M. but defendant stopped her and directed her back to the motel room. Song
started up the stairs to try to help Doe. Song had his taser in his hand. Song was
concerned that defendant was going to be aggressive.
When Officer Song got to the top of the stairs, defendant walked toward him.
Song told defendant to stop and take a seat. Song wanted to detain defendant so that Doe
could be removed from the situation. Defendant did not comply and was arguing with
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Song. Song kept giving him commands to sit down. At one point, Song could not see
defendant’s hands and got concerned that defendant had a weapon. Defendant was
wearing a loose jacket and Song could not be sure whether defendant had a weapon.
When Song asked to see defendant’s hands, defendant waved them around in the air and
asked Song what he wanted. Song told defendant to sit down at least 15 times.
Officer Song was concerned about an altercation with defendant because
defendant was bigger than him. Song continued to tell defendant to sit down. D.M. came
up to the second floor and headed to the motel room to get Doe. Song told her to stop but
she disregarded him and rushed into the room. Defendant walked toward the motel room.
Song was concerned about what would happen to D.M. and Doe. Song deployed his
taser at defendant but missed. Defendant laughed at Song and said “you missed, you
bitch.”
D.M. emerged from the motel room with Doe and ran down the stairs. Defendant
walked toward Officer Song holding his hands “outwards and upwards” toward him.
Song was still concerned that defendant may attack him so he instructed defendant to turn
around. Song pulled out his baton and extended it. Defendant turned around and put his
hands up.
Officer Song had decided to arrest defendant for obstructing a police officer and
told him to get down on the ground so he could be handcuffed. Defendant did not get
down on the ground. Song put his hand on defendant’s shoulder to force him to the
ground. Defendant tensed up and tried to stay standing. Song hit defendant in the
shoulder or arm with the baton two or three times. At the same time he continued to tell
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defendant to get down on the ground. Defendant went to the ground either due to the
baton strikes or because of Song’s commands. Song did not intend to hurt defendant with
the baton; he only wanted him to comply with getting down on the ground.
Officer Song handcuffed defendant. He held the baton to defendant’s back to keep
him on the ground. Another officer, Upland Police Officer Paul Turner, arrived to assist
him based on Song calling for backup. Turner observed Song struggling with defendant
on the second floor of the motel. Turner went upstairs and helped him get defendant to
his feet to take him to Song’s patrol car. Song turned defendant around toward him.
Defendant pushed his shoulder into Song causing him to fall into a wall. Song’s body
camera fell off. Song and Turner then pushed defendant down to the ground again. Once
they gained control of defendant, they walked him to the patrol car.3
According to the audio from the body cameras worn by Officers Song and Turner,
Song initially told defendant repeatedly to sit down. He also told defendant that he felt
defendant was being aggressive. Song told defendant he could not see his hands. After
repeatedly telling defendant to sit down, defendant responded, “I have a fuck, you have a
seat dude. You have a seat, mother fucker . . . you have a seat.” When Song missed
defendant with the taser, defendant told him, “stupid ass bitch ass n***a.”
3 Officer Song’s body camera video was shown to the jury but has not been provided to this court to review. Another video from a different body camera, showing defendant after he was handcuffed, was shown to the jury but has likewise not been provided to this court. The transcript of the audio from both body cameras is part of the record on appeal.
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The audio from the body camera also revealed that when D.M. was upstairs
getting Doe, she told Officer Song, “Just beat his ass already.” After D.M. left, Song
again told defendant to sit down. Defendant responded, “Here you can cuff me, bitch,
how about this punk.” Song told defendant to turn around and get down. Defendant told
Song he was going to sue him and that he was going to get him fired. Defendant claimed
he had done nothing wrong. Defendant told Song to get a lawyer. Song then told
defendant to stop fighting then asked defendant, after he pushed him in the shoulder,
“What the fuck was that” and that he had “picked up another felony.” Defendant kept
calling Song a “bitch” and a “punk.”
As Officer Turner was taking defendant to the patrol car, defendant continued to
state that he was going to sue. Turner told him he should not have tried to fight.
Defendant called Turner a “punk” and told him, “fuck your authority fool.”
After the incident, defendant had abrasions on the back and side of his head and a
cut on his lip. Officers Song and Turner surmised these occurred when they had to place
him back on the ground after he pushed Officer Song. It was not from hitting defendant
with the baton. While defendant was on the ground a second time, Song held his arm
against defendant’s neck to keep him down. He denied hitting him in the head. If
defendant had sat down and complied with his commands, Song would not have taken
any action against defendant. Song only used his baton to get defendant to go down on
the ground.
While in the patrol car, defendant spoke with Officer Song and the interview was
recorded. Defendant told Song that it was not D.M. who was at the motel; it was his
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mother in law. He later admitted he was lying. He admitted he was aware of the
domestic violence restraining order. Song also asked defendant why he refused to
comply with his orders and defendant stated he did not think that he had to comply.
DISCUSSION
A. INSUFFICIENT EVIDENCE
Defendant contends the evidence of his conviction of resisting arrest was
insufficient under both California law and the Fourteenth Amendment because no
reasonable juror could have found that Officer Song did not use excessive force to
effectuate the arrest.
When the sufficiency of evidence is challenged on appeal, we must review “ ‘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.’ ” (People v.
Davis (2009) 46 Cal.4th 539, 606.) “We do not reweigh the evidence or revisit
credibility issues, but rather presume in support of the judgment the existence of every
fact that could reasonably be deduced from the evidence.” (People v. Alvarez (2009) 178
Cal.App.4th 999, 1004.) “ ‘Before the judgment of the trial court can be set aside for the
insufficiency of the evidence, it must clearly appear that on no hypothesis whatever is
there sufficient substantial evidence to support the verdict of the [finder of fact].’ ”
(People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)
Section 69 can be violated two ways. “The first way of violating section 69
‘encompasses attempts to deter either an officer’s immediate performance of a duty
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imposed by law or the officer’s performance of such a duty at some time in the future.’ ”
(People v. Smith (2013) 57 Cal.4th 232, 240 (Smith), italics omitted.) “The second way
of violating section 69 expressly requires that the defendant resist the officer ‘by the use
of force or violence,’ and it further requires that the officer was acting lawfully at the
time of the offense.” (Ibid.) Defendant was prosecuted under the second theory.
“An officer using excessive force is not acting lawfully.” (People v. Sibrian
(2016) 3 Cal.App.5th 127, 133.) “The use of excessive force by law enforcement officers
is analyzed under the Fourth Amendment’s objective reasonableness requirement for a
seizure of the person.” (People v. Brown (2016) 245 Cal.App.4th 140, 157 (Brown),
citing Graham v. Connor (1989) 490 U.S. 386.) “Under Graham, then, the question in a
case such as this is whether the amount of force the officers used in making the arrest was
objectively unreasonable given the circumstances they faced.” (Allgoewer v. City of
Tracy (2012) 207 Cal.App.4th 755, 763.) Determining whether the force used is
reasonable “requires careful attention to the facts and circumstances of each particular
case, including the severity of the crime at issue, whether the suspect poses an immediate
threat to the safety of the officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.” (Graham, at p. 396.) Furthermore, “ ‘[t]he
“reasonableness” of a particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . The
calculus of reasonableness must embody allowance for the fact that police officers are
often forced to make split-second judgments—in circumstances that are tense, uncertain,
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and rapidly evolving—about the amount of force that is necessary in a particular
situation.’ ” (Allgoewer, at p. 762.)
Here, the jury was fully instructed on the excessive force charge and Officer
Song’s duty in making the arrest under California law. CALCRIM No. 2670 instructed
the jury on whether Song was lawfully discharging his duties as a peace officer. It was
further advised, “The People have the burden of proving beyond a reasonable doubt that
the officer was lawfully performing his duty. If the People have not met this burden, then
you must find the defendant not guilty of resisting an executive officer.”
The evidence before this court supports the jury reasonably concluded that Officer
Song was lawfully performing his duty and did not use excessive force when arresting
defendant. Song arrived at the motel and defendant was yelling curse words at D.M.;
Doe was with defendant and she was stopped by him from going to D.M. Defendant
continued to yell at both Song and D.M.. Song tried to calm defendant, but defendant
continued to yell. Song expressed concern about what defendant would do to Doe and
about the aggressiveness of defendant. Defendant continued to argue and refused to
comply with Song’s commands. The seriousness of the situation, which was reported as
a domestic violence disturbance, and which required Officer Song to call for backup, was
not the minor offense of violating a no-negative contact order as described by defendant.
Song was concerned based on the defendant’s aggressiveness and the danger posed to
Doe.
Further, defendant posed an immediate threat to Officer Song, D.M. and Doe.
Song told defendant no less than 15 times that he was to sit on the ground. On the audio
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of the body camera, defendant was repeatedly calling Song a “bitch” and “punk.” He
clearly had no respect for Song’s authority. Defendant was on a narrow walkway on the
second floor of the motel and he had Doe behind him in a motel room. Song had no
indication as to what other dangers were in the motel room. When Song deployed the
taser to keep defendant from going after D.M. and Doe, he missed, and defendant
laughed and told him you “missed me” “stupid ass bitch ass n***a.” Song expressed his
concern for his own safety, due to defendant’s behavior and because defendant was
bigger than him, and Doe’s safety.
Based on the circumstances, Song used reasonable force in order to handcuff defendant.
Defendant insists that defendant merely “tensing up” when Officer Song touched
his shoulder did not warrant being hit with the baton, and defendant did not pose an
immediate threat to Song. However, defendant mischaracterizes the evidence when Song
touched defendant’s shoulder. Song attempted to push defendant to the ground and
defendant resisted. Song testified that he hit defendant in the shoulder with the baton in
order to get him to comply with his demands, not to hurt him. He purposefully did not hit
defendant in the head or other sensitive area. Further, defendant ignores the audio
recording during which defendant refuses to comply with Song’s demands and makes its
clear he does not need to respect Song’s authority.
Based on the foregoing, the evidence supports the jury’s decision that Officer
Song was lawfully performing his duty when he arrested defendant and did not use
excessive force.
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B. SIMPLE ASSAULT INSTRUCTION
Defendant further contends the trial court erred by failing to sua sponte instruct the
jury with the lesser included offense of simple assault.4
“ ‘It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.’ ” (People v. Stewart (1976) 16 Cal.3d 133, 140.) “ ‘[I]nstructions on lesser
included offenses “are required whenever evidence that the defendant is guilty only of the
lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.]
‘Substantial evidence’ in this context is ‘ “evidence from which a jury composed of
reasonable [persons] could ... conclude[]” ’ that the lesser offense, but not the greater,
was committed. [Citations.]” [Citation.] Instructions on lesser included offenses should
be given “when the evidence raises a question as to whether all of the elements of the
charged offense were present [citation], but not when there is no evidence that the offense
was less than that charged.” ’ ” (Brown, supra, 245 Cal.App.4th at p. 153.) We review
whether a trial court improperly failed to instruct on a lesser included offense de novo.
(People v. Souza (2012) 54 Cal.4th 90, 113.)
“An assault is an unlawful attempt, coupled with a present ability, to commit a
violent injury on the person of another.” (§ 240.) “An ‘assault does not require a specific
intent to cause injury or a subjective awareness of the risk that an injury might occur.
Rather, assault only requires an intentional act and actual knowledge of those facts
4 Defendant did not request the lesser included offense instruction of simple assault.
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sufficient to establish that the act by its nature will probably and directly result in the
application of physical force against another.’ ” (Brown, supra, 245 Cal.App.4th at p.
151.) “ ‘[W]hen excessive force is used by a defendant in response to excessive force by
a police officer . . . defendant [may] be convicted, and then the crime may only be a
violation of section 245, subdivision (a) or of a lesser necessarily included offense within
that section,’ such as section 240.” (Id. at p. 154.) As such, “[E]ven if the officer is not
acting within the scope of his duties because of his use of excessive force, the defendant
may still be guilty of simple battery [or simple assault] if he responds with excessive
force.” (People v. Castain (1981) 122 Cal.App.3d 138, 145.)
The People essentially concede that simple assault is a lesser offense of violating
section 69 based on the accusatory pleading in this case. However, they contend that the
evidence did not support the lesser offense. We agree there was insufficient evidence
presented to support the theory that defendant was only guilty of assault but not guilty of
resisting an executive officer.
Defendant relies on Brown, supra, 245 Cal.App.4th 140, to support his claim that
the trial court was required to instruct the jury on simple assault. In Brown, police
officers observed the defendant, a 67-year-old male, riding a bicycle on the sidewalk with
no light, which were violations of the municipal code and the Vehicle Code. The
defendant refused to stop or get off his bicycle. One of the officers tackled the defendant
and threw him to the ground. The officers testified that defendant swung his fists at
them. The officers admitted that they struck the defendant by punching him in the torso
area, using a knee to strike his torso and delivering two blows to the defendant’s head.
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(Id. at pp. 146-147.) In contrast, the defendant testified that he fell off his bicycle, and
while facedown, and not resisting, one of the officers pinned him to the ground and hit
him in the head without provocation. The defendant suffered a fractured rib and knots on
his head. (Ibid.)
The appellate court held that the trial court should have instructed the jury with
simple assault. The court explained that the jury could have believed the defendant’s
testimony that the officers used excessive force in apprehending him, and also believed
the officers’ testimony that the defendant “repeatedly swung at them, striking both
officers” after he was apprehended. (Brown, supra, 245 Cal.App.4th at p. 154.) The
court reasoned that, “[i]f the jury concluded that [the defendant]’s reaction was
unreasonable, that would have supported an assault conviction.” (Ibid.) The court
concluded, “That view of the facts—i.e., that there was improper or excessive use of
force on both sides—was frankly the most plausible interpretation of the evidence.’
Thus, we conclude that the trial court erred by failing to instruct the jury regarding assault
as a lesser necessarily included offense of the section 69 charge.” (Id. at p. 154.)
Based on our review of the record in this case, we conclude the lesser offense
instruction on simple assault was not warranted by the evidence. In order to reach a
verdict on assault, the jury would have had to determine that defendant used excessive
force in response to Officer Song’s use of excessive force. (Brown, supra, 245
Cal.App.4th at pp. 154-155.) Here, the only evidence was the testimony of Song, who
insisted he only used the baton in a non-lethal manner to get defendant to comply with
being handcuffed. Moreover, the evidence established that Song only used his baton
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after defendant repeatedly refused his commands to sit down and while he posed a risk to
Doe in the motel room. Additionally, while defendant pushed up against Song with force
causing Song to have to use the baton, which supports the section 69 charge, this did not
constitute excessive force in response to Song’s actions.
Brown is distinguishable. In Brown, the defendant testified at trial. (Brown,
supra, 245 Cal.App.4th at pp. 146-147.) Accordingly, the jury in Brown was presented
with conflicting evidence that could have supported a conviction for assault. Moreover,
the testimony in Brown showed that three officers tackled the defendant for a relatively
minor offense, and struck him in the head. (Id. at pp. 146-147.) The jury could have
credited the defendant’s testimony that he fell off his bicycle and the officers attacked
him without provocation. Here, the jury received uncontradicted testimony from Officer
Song, Officer Turner, and D.M. that defendant was not complying with Song’s
commands; and Song had to resort to hitting defendant in the shoulder with his baton to
be able to handcuff him, because defendant tensed up and pushed against Song, refusing
to get down on the ground. Defendant did not testify or present evidence that the force
used by Song went beyond the baton strikes, which, based on the evidence before this
court, appear to have been minor.5 The evidence here did not support a lesser offense
instruction on simple assault.
Further, even if the trial court erred by failing to instruct the jury on simple
assault, “ “ ‘[T]he failure to instruct sua sponte on a lesser included offense in a
5While the video shown to the jury showed the intensity of the baton strikes, this court was not provided with the video.
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noncapital case is, at most, an error of California law alone, and is thus subject only to
state standards of reversibility.” [Citation.] Under the state standard, “such misdirection
of the jury is not subject to reversal unless an examination of the entire record establishes
a reasonable probability that the error affected the outcome.” [Citations.] “The Supreme
Court has emphasized ‘that a “probability” in this context does not mean more likely than
not, but merely a reasonable chance, more than an abstract possibility.’ ” ’ ” (Brown,
supra, 245 Cal.App.4th at p. 155.)
The court in Brown found the error was prejudicial as follows: “The use of
excessive force was a primary defense theory at trial and there was substantial evidence
to support it. But the instructional error precluded the jury from finding that the officers
used excessive force, while convicting Brown of assault for swinging at the officers in a
manner that could have injured them, whether he intended to cause injury or not. A ‘jury
without an option to convict a defendant of a lesser included offense might be tempted to
convict the defendant of an offense greater than that established by the evidence instead
of rendering an acquittal.’ ” (Brown, supra, 245 Cal.App.4th at pp. 154-155.)
In contrast, here, there was not substantial evidence of the use of excessive force
by Officer Song. Additionally, the jury was also instructed with a lesser included offense
of resisting an officer in the performance or attempted performance of his duties without
force or violence. (§ 148, subd. (a)(1).)6 In fact, defendant’s counsel argued to the jury
6 While the jury in Brown was also instructed on the lesser included offense of section 148, the court did not consider the instruction in finding prejudice, presumably because the defendant admitted using force and violence. (Brown, supra, 245 Cal.App.4th at pp. 149, 154-155.)
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that defendant only tensed up and did not refuse to sit down when Song touched his
shoulder; and he did not push Song, but rather, he fell into Song. This instruction
permitted jurors to convict defendant of a misdemeanor rather than a felony, but the jury
declined to do so. As such, the possibility that the jury may have concluded that Song
was lawfully performing his duties because they wanted to ensure the conviction, is not
supported in this case.
Further, based on the entire record, it was not reasonable for the jury to find that
Song used excessive force and that defendant in turn used excessive force against Song.
Any conceivable error in failing to instruct the jury on the lesser included offense of
assault was harmless.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER Acting P. J.
We concur:
FIELDS J.
RAPHAEL J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that there was sufficient evidence to support the defendant's conviction for resisting an executive officer and that the trial court did not err in failing to instruct the jury on the lesser included offense of simple assault.
Issues
Whether there was sufficient evidence to support the conviction for resisting an executive officer under Penal Code section 69.
Whether the trial court erred by failing to sua sponte instruct the jury on the lesser included offense of simple assault.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The evidence before this court supports the jury reasonably concluded that Officer Song was lawfully performing his duty and did not use excessive force when arresting defendant.”
“The evidence here did not support a lesser offense instruction on simple assault.”
“Any conceivable error in failing to instruct the jury on the lesser included offense of assault was harmless.”