Filed 2/11/14 P. v. Kingsby CA2/7
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B241328

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. MA053322)
         v.

JOANNE KINGSBY et al.,

         Defendants and Appellants.




         APPEALS from judgments of the Superior Court of Los Angeles County,
Kathleen Blanchard, Judge. Reversed.
         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant Joanne Kingsby.
         Sally Patrone Brajevich, under appointment by the Court of Appeal, for Defendant
and Appellant Christel Chantel Featherstone.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Lawrence M. Daniels and
William H. Shin, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                    INTRODUCTION


       Defendants Joanne Kingsby and Christel Chantel Featherstone appeal from
judgments of conviction entered after a jury found them guilty on two counts of
attempting by means of threats or violence to prevent an executive officer from
performing his duty in violation of Penal Code section 69. The trial court suspended
sentence for both defendants and placed them on formal probation for three years,
conditioned on serving 45 days in county jail. On appeal, Kingsby and Featherstone
challenge the sufficiency of the evidence to support their convictions, argue the trial court
committed instructional error, and contend the prosecutor engaged in misconduct during
closing argument. Kingsby also argues the trial court erred by denying her request to join
in Featherstone’s Pitchess1 motion. We agree with Kingsby and Featherstone that the
trial court erred by failing to instruct sua sponte on the lesser included offense of Penal
Code section 148, subdivision (a)(1), and that this instructional error was prejudicial.
Therefore, we reverse.


                                          FACTS


       On June 30, 2011 at approximately 12:30 p.m. Los Angeles County Sheriff’s
Deputies Jeffrey Williams and James Dodson responded to a domestic violence call in
Lancaster. Keiona Stenhouse testified that she called the Sheriff’s Department after her
husband, Eric Stenhouse, had pinned her down and choked her.2 Keiona called Kingsby,
her mother, and Featherstone, her younger sister, and asked them to come to her house


1      Pitchess v. Superior Court (1974) 11 Cal.3d 531.
2       Because Keiona, Eric, and Eric’s brother Nathan all have the same last name, we
will refer to their them by their first names for clarity. (See People v. Ramirez (2010)
189 Cal.App.4th 1483, 1485, fn. 2; People v. Cabonce (2009) 169 Cal.App.4th 1421,
1424, fn. 2.)


                                              2
because Eric had “just jumped on” her and choked her and the children were scared.
Kingsby, who was visiting with Featherstone, initially refused because she felt the
Stenhouses were “always into this stuff,” but agreed to come over with Featherstone
when Keiona said she was “bleeding everywhere.” Kingsby, four of her six foster
children, Featherstone, and her son arrived at approximately 10:30 a.m. Eric’s brother
Nathan, Eric’s cousins Patricia Boyce and Kianna Boyce, and eight children were at the
house. Keiona was holding her neck, breathing hard, had a broken nail, and her eyes
were red from crying. When the deputies arrived, Keiona told them that her husband Eric
had assaulted her during an argument and driven away in their gray Chevrolet Tahoe.
The deputies stayed at the house about five minutes.
       As the deputies were leaving the house, they saw a gray Chevrolet Tahoe
travelling north at a high rate of speed about 100 feet to the east of their location. The
driver matched Eric’s description. The deputies got into their cars and pursued the
Tahoe. The pursuit ended back at the Stenhouse residence.
       At some point, Patricia Boyce ran into the house and told Keiona that Eric and the
police were outside. Kingsby, Featherstone, Patricia Boyce, Kianna Boyce, and the
children all went outside onto the porch.
       Meanwhile, according to the deputies’ version of the events, Deputy Williams
attempted to prevent Eric from getting out of the Tahoe by pulling up next to the driver’s
side door. When Eric managed to get out of the vehicle, Deputy Williams drew his gun
and ordered Eric to stop and to put his hands on his head. Eric responded, “Fuck you,
bitch. This is private property.” Facing the deputies, Eric walked backward toward the
house, cursing at the deputies and ignoring their commands to stop. When Eric was
halfway to the house, a group of people “pil[ed] out of the house.” The deputies saw
three adults along with children and teenagers. The adults began telling the deputies,
“This is private property. Leave him alone.” “Get off the property.”
       Kingsby and Featherstone approached Eric. Deputy Dodson ordered them to stop.
Deputy Williams grabbed Eric’s arm while Deputy Dodson used pepper spray in an
attempt to restrain Eric. At the same time, according to Deputy Williams, Kingsby

                                              3
grabbed Eric from behind in a “bear hug” and began pulling him away from the deputies.
Kingsby was yelling, “Leave him alone. This is private property.” When Deputy
Dodson grabbed Eric’s other arm, Featherstone grabbed Eric’s arm and shoulder and
attempted to pull him away from the deputies. She too was yelling, “Leave him alone.
This is private property. Get out of here.”
       During the “tug of war” over Eric, he, the deputies, Kingsby, and Featherstone all
fell to the ground. One of the people outside the house, Patricia Boyce, began recording
the incident on a cell phone.3 She yelled at the officers that they were racists, they were
on private property, and they were “going to get a lawsuit.” Deputies Williams and
Dodson kept telling everyone to “get back” or they would go to jail. Featherstone called
the deputies racists and said she would sue them. Eventually, Kingsby and Featherstone
got up and backed away about three feet, although they continued yelling at the deputies.
Deputy Dodson handcuffed Eric.
       Deputy Williams testified that he did not see Eric pulling or grabbing Kingsby,
although it appeared that Kingsby was trying to get out from underneath him when they
were on the ground. Deputy Williams testified that Kingsby and Featherstone interfered
with their attempt to place Eric under arrest and made the incident more serious than it
needed to be.
       The family’s version of the events of that afternoon was different.
       Kingsby testified that at some point, while the family was in the house after Eric
had driven away, someone heard sirens, and Featherstone said, “That must be Eric.”
Everyone ran to the front door, but Kingsby was in the back and at first could not see
what was happening. Kingsby said that she passed through the group of people standing
on the porch, walked outside, and stood in the driveway, in front of the garage. She saw
Eric coming up the driveway, followed by the two deputies. Eric made eye contact with
her and then ran up to her and grabbed her in a bear hug, pinning her arms to her sides.



3      The jury viewed the cell phone recording.


                                              4
Kingsby asked Eric to let her go, but he kept saying, “Mom, are you serious?” One of the
deputies ordered Kingsby to “get the fuck away” from Eric, but she responded, “I can’t.”
The deputy then sprayed her and Eric with pepper spray, and she was knocked to the
ground. She called for Featherstone to come help her. One of the deputies pried Eric’s
hands off of Kingsby, and Featherstone helped her up. Kingsby stated, “He wouldn’t
hurt me.” Kingsby denied grabbing Eric or trying to help him escape. She explained that
Eric had beaten her daughter and she did not want him to escape.
       Keiona testified that when she heard the sirens, she went out onto the porch to see
what was going on along with everyone else who was in the house.4 Keiona heard one of
the deputies tell Eric to freeze and saw Eric continue walking toward the grass. Eric then
ran and grabbed Kingsby, who was standing in the driveway, in a bear hug while
Featherstone tried to separate them. One of the deputies sprayed them with pepper spray.
Kingsby complained that the pepper spray got in her mouth, and Featherstone told the
deputies, “Wait, you guys sprayed my mom with pepper spray.” One of the deputies
tried to pull Eric away, but he resisted. Eric, Kingsby, and the deputies fell on the grass,
where Eric pinned Kingsby to the ground. Kingsby was yelling, “He has me” and that
she had been pepper sprayed. Other people were yelling, “Don’t shoot him. Stop. This
is private property.” Patricia Boyce was yelling, “This is racist,” and “lawsuit.” When
the deputies ordered everyone to get back, Featherstone complied. Kingsby complied
once she was able to extricate herself from the pile.
       Featherstone testified that she went outside to the porch because she “was being
nosey.” Featherstone saw Eric at the far end of the driveway and Kingsby at the other
end of the driveway near the garage. Featherstone never thought about going back into
the house, even though she saw a gun. She saw Eric walking backwards, yelling that it
was private property, Deputy Williams following with a gun, and Deputy Dobson with a
gun and pepper spray. Featherstone then saw Eric run up the driveway and grab


4      Keiona admitted prior convictions for burglary, taking a vehicle, identity theft,
grand theft, and filing a false police report.


                                              5
Kingsby. Deputy Dobson shot pepper spray on both Eric and Kingsby. The deputies
tried to pull Eric away from Kingsby, who was resisting, and then the four of them fell
over onto the grass. Featherstone then stepped off the porch and onto the grass and went
to help Kingsby by pulling on her arm. Deputy Williams told Featherstone to step back,
but she did not comply. Featherstone said she was trying to help her mother get away
from Eric, not help Eric get away from the deputies.
       Dashell Chastang lived next door to the Stenhouses and was acquainted with them.
She did not know Kingsby or Featherstone. She was in her house when her children told
her the police were outside. She went outside and saw Eric’s Chevrolet Tahoe and the
cars of the two deputies pull into the Stenhouse driveway. According to Chastang, Eric
got out of the Tahoe and walked up the driveway. He grabbed Kingsby’s upper body and
said, “Mom, is that how you feel? I love you. I was just at your house yesterday.” One
of the deputies said, “Let go.” Kingsby responded, “I can’t. He has me.” One of the
deputies pepper sprayed Eric and Kingsby. The next thing Chastang knew, they were all
“tussling” on the grass. Featherstone attempted to help Kingsby, who kept saying, “I
can’t let go.” One of the deputies then ordered Chastang inside, and she complied.
       Both deputies were injured in the incident. On July 19, 2011 Eric was convicted
of felony spousal abuse in violation of Penal Code section 273.5.


                                      DISCUSSION


       Defendants were convicted of obstructing or resisting executive officers in the
performance of their duties in violation of Penal Code section 69 (section 69). This
section punishes “[e]very person who attempts, by means of any threat or violence, to
deter or prevent an executive officer from performing any duty imposed upon such
officer by law, or who knowingly resists, by the use of force or violence, such officer, in
the performance of his duty . . . .” A defendant may violate section 69 in two separate
ways. “‘The first is attempting by threats or violence to deter or prevent an officer from
performing a duty imposed by law; the second is resisting by force or violence an officer

                                             6
in the performance of his or her duty.’ [Citations.] ‘The two ways of violating section 69
have been called “attempting to deter” and “actually resisting an officer.”’ [Citation.]”
(People v. Rasmussen (2010) 189 Cal.App.4th 1411, 1417-1418; People v. Carrasco
(2008) 163 Cal.App.4th 978, 984.)
       Defendants argue that the trial court erred by failing to instruct the jury sua sponte
on the lesser included offense of resisting, delaying, or obstructing a public officer in the
discharge of his duties in violation of Penal Code section 148, subdivision (a)(1)
(section 148(a)(1)). This section applies to “[e]very person who willfully resists, delays,
or obstructs any public officer . . . in the discharge or attempt to discharge any duty of his
or her office or employment . . . .” (§ 148(a)(1).)
       The Supreme Court recently addressed the issue whether section 148(a)(1) is a
lesser included offense of section 69. In People v. Smith (2013) 57 Cal.4th 232, the
People charged the defendant with violating section 69, and the defendant requested an
instruction on section 148(a)(1) as a lesser included offense. The prosecution objected,
and the trial court denied the defendant’s request. (Id. at p. 236.)
       The Supreme Court noted that the trial court must give “instructions on lesser
included offenses 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.’ [Citation.]” (People v. Smith, supra, 57 Cal.4th at
p. 239.) The Supreme Court stated that this “is because ‘California law has long
provided that even absent a request, and over any party’s objection, a trial court must
instruct a criminal jury on any lesser offense “necessarily included” in the charged
offense, if there is substantial evidence that only the lesser crime was committed. This
venerable instructional rule ensures that the jury may consider all supportable crimes
necessarily included within the charge itself, thus encouraging the most accurate verdict
permitted by the pleadings and the evidence.’ [Citation.] ‘[T]he rule 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

                                              7
neither “harsher [n]or more lenient than the evidence merits.” [Citation.]’ [Citation.]
Thus, ‘a trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included
offense which find substantial support in the evidence. On the other hand, the court is not
obliged to instruct on theories that have no such evidentiary support.’ [Citation.]” (Id. at
pp. 239-240.)
       “For purposes of determining a trial court’s instructional duties, we have said that
‘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.]’ [Citation.]” (People v. Smith, supra, 57
Cal.4th at p. 240.) The court held that under the statutory elements test, section 148(a)(1)
is not a lesser included offense of section 69. (Ibid.) “A person who violates section 69
in the second way—by ‘knowingly resist[ing], by the use of force or violence, such
officer, in the performance of his duty’—also necessarily violates section 148(a)(1) by
‘willfully resist[ing] . . . any public officer . . . in the discharge or attempt to discharge
any duty of his or her office or employment.’ [Citation.] But it is possible to violate
section 69 in the first way—by attempting, through threat or violence, to deter or prevent
an executive officer from performing a duty—without also violating section 148(a)(1). A
person who threatens an executive officer in an attempt to deter the officer from
performing a duty ‘at some time in the future’ [citation] does not necessarily willfully
resist that officer in the discharge or attempt to discharge of his or her duty under
section 148(a)(1). Accordingly, section 148(a)(1) is not a lesser included offense of
section 69 based on the statutory elements of each offense. [Citations.]” (Smith, supra,
at pp. 241-242.)
       Turning to the accusatory pleading test, the Supreme Court noted that “[i]f the
accusatory pleading in the present case had charged only the first way of violating section
69—i.e., that defendant attempted, through threat or violence, to deter or prevent an
executive officer from performing a duty—section 148(a)(1) would not have been a
necessarily included offense. But the amended information charged defendant with both

                                                8
ways of violating section 69. In addition to the first way of violating the statute, the
accusatory pleading also alleged that defendant violated the statute in the second way by
‘knowingly resist[ing], by the use of force or violence, such officer, in the performance of
his duty.’ As explained above, section 148(a)(1) is necessarily included within this
second way of violating section 69.” (People v. Smith, supra, 57 Cal.4th at p. 242.)
Thus, “section148(a)(1) was a necessarily included lesser offense of section 69 as alleged
in the . . . information.” (Id. at p. 243.)
       In this context the Supreme Court affirmed the rule “requiring sua sponte
instruction on a lesser offense that is necessarily included in one way of violating a
charged statute when the prosecution elects to charge the defendant with multiple ways of
violating the statute . . . .” (People v. Smith, supra, 57 Cal.4th at p. 244.) In applying this
rule, “[t]he trial court need only examine the accusatory pleading. When the prosecution
chooses to allege multiple ways of committing a greater offense in the accusatory
pleading, the defendant may be convicted of the greater offense on any theory alleged
[citation], including a theory that necessarily subsumes a lesser offense. The prosecution
may, of course, choose to file an accusatory pleading that does not allege the commission
of a greater offense in a way that necessarily subsumes a lesser offense. But so long as
the prosecution has chosen to allege a way of committing the greater offense that
necessarily subsumes a lesser offense, and so long as there is substantial evidence that the
defendant committed the lesser offense without also committing the greater, the trial
court must instruct on the lesser included offense. This allows the jury to consider the
full range of possible verdicts supported by the evidence and thereby calibrate a
defendant’s culpability to the facts proven beyond a reasonable doubt. As our precedent
has emphasized, such an approach does not, in purpose or effect, work to the advantage
of either the prosecution or the defense. Instead, it serves to protect the jury’s truth-
ascertainment function.” (Id. at p. 244.)
       Here, the prosecution alleged both ways of violating section 69. The People
alleged that Kingsby and Featherstone “did unlawfully attempt by means of threats and
violence to deter and prevent [each deputy], who was then and there an executive officer,

                                              9
from performing a duty imposed upon such officer by law, and did knowingly resist by
the use of force and violence said executive officer in the performance of his/her duty.”
Therefore, the trial court had a duty to instruct as to section 148(a)(1) if there was
substantial evidence that defendants committed only the lesser offense. (See People v.
Smith, supra, 57 Cal.4th at pp. 239-240, 245.)
       While the prosecution’s evidence supported a finding that defendants used force or
violence to resist the deputies in the performance of their duties (People v. Rasmussen,
supra, 189 Cal.App.4th at pp. 1417-1418), the defense presented evidence from which a
jury could reasonably infer that Kingsby and Featherstone, without necessarily using
force or violence, willfully injected themselves into a situation in which the deputies were
trying to do their duty and delayed or obstructed the deputies’ efforts to arrest Eric.
Kingsby and Featherstone came outside as Eric was walking toward the house. Kingsby
testified that she went on to the driveway even though she saw the deputies with their
guns drawn chasing Eric. Both Kingsby and Featherstone repeatedly failed to comply
with directives from the deputies to move away. Eric was able to grab Kingsby, and the
two of them ended up on the ground with the deputies. Featherstone attempted to pull
Kingsby away from Eric, adding another person to the struggle. The fact that the
deputies sprayed Kingsby with pepper spray as they were attempting to subdue Eric is
further evidence that Kingsby had placed herself in a position where she was obstructing
the deputies. Thus, there was substantial evidence that the decisions by Kingsby and
Featherstone to become involved in the confrontation between the deputies and Eric
made it more difficult for the deputies to place Eric under arrest.
       Moreover, the jury could have believed the testimony of the officers that Kingsby
and Featherstone came out of the house and down from the porch and interfered with the
officers’ efforts to arrest Eric, but believed the testimony of Kingsby and Featherstone
that Eric grabbed Kingsby rather than the deputies’ testimony that Kingsby grabbed Eric.
As in People v. Lacefield (2007) 157 Cal.App.4th 249, disapproved on another ground in
People v. Smith, supra, 57 Cal.4th at p. 242, the “jurors were entitled to accept or reject
all of the testimony, or a portion of the testimony, of any of the . . . witnesses. [Citation.]

                                              10
They might have believed part of what the officers said and part of what the defense
witnesses said. They therefore might have found that [the defendant] acted unlawfully,
by arguing with [the officer] and refusing to disburse, but he did not use force
unlawfully . . . .” (Lacefield, supra, at p. 261.) Even if neither Kingsby nor Featherstone
used force in pulling Eric away from the deputies, they still could have violated
section 148(a)(1). Although “‘[s]ection 148 is most often applied to the physical acts of a
defendant,’” the statute “‘“is not limited to nonverbal conduct involving flight or forcible
interference with an officer’s activities. No decision has interpreted the statute to apply
only to physical acts, and the statutory language does not suggest such a limitation.”
[Citation.]’ [Citation.]” (People v. Christopher (2006) 137 Cal.App.4th 418, 431; see In
re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329-1330; People v Quiroga (1993) 16
Cal.App.4th 961, 968.)
       Thus, there was substantial evidence on which a jury could find that Kingsby and
Featherstone violated only section 148(a)(1), by delaying or obstructing the officers,
without violating section 69 by resisting the officers by force or violence. This case is
not like Carrasco, where “if [the defendant] resisted the officers at all, he did so
forcefully, thereby ensuring no reasonable jury could have concluded he violated section
148[(a)(1)] but not section 69.” (People v. Carrasco, supra, 163 Cal.App.4th at p. 985.)
Instead, this case is like Lacefield, where the court found that “there was an evidentiary
basis for instructing on section 148(a)(1) . . . because there were different versions of how
the incident occurred, such that the jury might have found that [the defendant] violated
section 148(a)(1) and not section 69, if it had been given section 148(a)(1) as an option.”
(People v. Lacefield, supra, 157 Cal.App.4th at p. 260.) Therefore, the trial court erred in
failing to instruct the jury on section 148(a)(1) as a lesser included offense of section 69.
(People v. Smith, supra, 57 Cal.4th at pp. 239-240, 245.)
       The erroneous failure to instruct on a lesser included crime is prejudicial if it is
reasonably probable that defendants would have obtained a more favorable result absent
the error. (People v. Moye (2009) 47 Cal.4th 537, 555-556; People v. Millbrook (2014)
222 Cal.App.4th 1122, 1146; People v. Ramirez (2010) 189 Cal.App.4th 1483, 1487.) In

                                              11
this context, a reasonable probability “‘“‘“does not mean more likely than not, but merely
a reasonable chance, more than an abstract possibility.”’”’” (Millbrook, supra, at
p. 1146, quoting People v. Wilkins (2013) 56 Cal.4th 333, 351.) Here, the evidence
revealed a rapidly unfolding situation with a number of people becoming involved, either
in the physical struggle with Eric or yelling at one another. The deputies were
outnumbered and trying to take Eric into custody while Kingsby and Featherstone were
struggling with them and various other family members were yelling at them. The
witnesses for the prosecution and the defense had different recollections of what
occurred. The evidence of guilt was not overwhelming or uncontested, and each side
presented equally plausible versions of what happened, leaving the jury ultimately to
decide a credibility contest.
       Given the state of the evidence in this case, we cannot say that the failure to
instruct on the lesser included offense was harmless. “The absence of an instruction on
section 148(a)(1) forced ‘an all-or-nothing choice between conviction of the stated
offense on the one hand, or complete acquittal on the other.’ . . . The pleadings and
evidence here suggested a middle ground, a conviction for section 148(a)(1), but the jury
was not given that option.” (People v. Lacefield, supra, 157 Cal.App.4th at p. 262.) The
evidence in this case “was not so overwhelming as to show there is no reasonable
probability that [defendants] would have obtained a more favorable result if the jury had
been instructed” on section 148(a)(1). (People v. Ramirez, supra, 189 Cal.App.4th at
p. 1488; see People v. Villanueva (2008) 169 Cal.App.4th 41, 53 [where conflicting
testimony given by two witnesses is not “inherently incredible” and is “evenly balanced,”
failure to instruct on lesser included offense is prejudicial].) Therefore, the convictions
must be reversed.5


5      Because we conclude that the judgments must be reversed because of the trial
court’s failure to instruct on a lesser included offense, we do not address Kingsby and
Featherstone’s argument that the prosecutor engaged in misconduct during closing
argument. Nor do we address Kingsby’s arguments that the trial court’s denial of her
request to join in Featherstone’s Pitchess motion deprived her of the right to present a

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                                      DISPOSITION


       The judgments are reversed.



                                                  SEGAL, J.*


We concur:



              PERLUSS, P. J.



              ZELON, J.




defense and that her counsel’s failure to file a Pitchess motion deprived her of the
effective assistance of counsel. Kingsby will have an opportunity to file a Pitchess
motion on remand if she chooses to do so, although the fact that Featherstone did not
introduce into evidence any of the information she discovered as a result of her Pitchess
motion suggests that such a motion is not likely to aid Kingsby’s defense. Kingsby and
Featherstone also contend that the trial court erred by using an obsolete version of
CALJIC No. 7.50 that did not instruct the jury on the specific intent required for the first
type of violation of section 69, attempting to deter an officer. On remand, the trial court
will have the opportunity to use the revised version of this instruction.
*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


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