People v. Glass CA3

Filed 8/17/23 P. v. Glass CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (El Dorado) ----

THE PEOPLE, C096404

Plaintiff and Respondent, (Super. Ct. No. P20CRF0654)

v.

ROBERT MICHAEL GLASS,

Defendant and Appellant.

Defendant Robert Michael Glass fled during an arrest, and a jury found him guilty of forcefully resisting an executive officer (Pen. Code, § 69; all further section references are to the Penal Code). But the trial court did not instruct on the lesser included offense of resisting without force (§ 148, subd. (a)(1)), and there was substantial evidence of a lack of force. On appeal, defendant argues the trial court committed prejudicial error by not instructing the jury on the lesser. We agree and reverse.

1

FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with one count of violating section 69, alleging he both deterred and resisted an executive officer using force and violence. It was further alleged defendant had a prior strike. A. Trial Evidence Officer Mark Utterback testified that on the morning of December 21, 2020, he drove to an RV parked on the side of a rural highway. Defendant had an outstanding arrest warrant, and Utterback had reason to believe that defendant was in the RV. Utterback parked behind the RV and called for defendant to come out. After some time, defendant came out of the rear window of the RV directly in front of Utterback’s parked patrol car. The prosecutor played a video from Utterback’s patrol car showing what happened next. Utterback told defendant he was going to jail because he had warrants, turned defendant around to face the RV, started to arrest defendant, and defendant ran away. Utterback chased defendant, who ran into the highway and then back to the front of the RV while Utterback threatened to use his Taser. Utterback then shot his Taser just as they both ran in front of the RV and out of view of the patrol car’s camera. Sounds of a struggle are heard from the video’s audio, coming from a microphone on Utterback, and defendant says “okay” and “why” repeatedly while Utterback says “behind your back” several times, then “behind your back or I’m going to start fucking you up and you’ll get tased again.” Utterback then says, “I got one combative,” and defendant responds, “No, I’m not combative. I’m giving up. I’m not combative.” Utterback says, “calm the fuck down,” and then sounds of another struggle are heard while defendant yells, “why.” then says different forms of “I can’t breathe,” “please let me breathe,” “I’m not combative,” and “I’m not trying to fight you,” while Utterback says multiple times, “calm down” and “just relax.” Both voices then become inaudible but their conversation continues for about six minutes until another officer arrives. The