Filed 1/30/19
                              CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H044999
                                                    (Santa Cruz County
        Plaintiff and Respondent,                   Super. Ct. No. 17CR01497)

        v.

RANDALL PATRICK ATKINS,

        Defendant and Appellant.



        A jury convicted defendant Randall Patrick Atkins of attempting to deter and
resisting an executive officer in the performance of his duties under Penal Code section
69 (hereafter section 69).1 Atkins contends on appeal that we must reverse his conviction
because the trial court erred in instructing the jury that the People need not prove beyond
a reasonable doubt that Atkins knew the person whom he attempted to deter was an
executive officer. We agree that the trial court erred, conclude that the error was
prejudicial, and reverse his conviction.
                     I. FACTS AND PROCEDURAL BACKGROUND
        Atkins was charged by information with attempting to deter an executive officer
and resisting an executive officer (§ 69; count 1); misdemeanor possession of a weapon
on school grounds (§ 626.10, subd. (b) (hereafter section 626.10(b)); count 2); and




        1
            All further statutory references are to the Penal Code.
misdemeanor resisting, obstructing, or delaying a peace officer (§ 148, subd. (a)
(hereafter section 148(a)); count 3).
       In count 1, the information charged that “On or about [March 10, 2017], in the
above named Judicial District, the crime of Resisting [an] Executive Officer, in violation
of Penal Code Section 69, a Felony, was committed by Randall Patrick Atkins, who did
unlawfully attempt by means of threats and violence to deter and prevent Officer Jack
Calhoun, who was then and there an executive officer, 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.” (Some capitalization omitted.)
       Nathaniel Calhoun, the officer named in Count 1,2 testified at trial that, on March
10, 2017, he was a police officer with the Police Department of the University of
California, Santa Cruz (UC Santa Cruz). Calhoun was working the night shift as a patrol
officer. He was wearing a police uniform with a badge and belt and was driving a “fully
marked Ford Crown Victoria police cruiser.” The car was a “typical patrol car,” that said
“UC Santa Cruz Police Department” on it and had blue and red lights on top.
       Just before 1:00 a.m. on March 10, Officer Calhoun was patrolling in his car in a
parking structure located on the UC Santa Cruz campus. The parking structure was five
or six stories tall, very well-lit, and had a spiral roadway inside it. When he was on the
second story of the parking structure, Calhoun “saw two skateboarders traveling towards
[him] at a high rate of speed” down the parking structure roadway. The skateboarders
narrowly missed crashing into his patrol car. One of the skateboarders jumped off his
skateboard; the other continued down the ramp and “vanished from sight.”
Skateboarding is prohibited on the campus of UC Santa Cruz.
       Calhoun detained the man who had jumped off his skateboard and placed the
skateboard on the hood of Calhoun’s patrol car. The man who had skateboarded away,

       Calhoun testified that his first name is Nathaniel, but he “goes by his middle
       2

name.” The information referred to him as “Jack Calhoun.”
                                                 2
later identified as Atkins, came back yelling that Calhoun had tried to hit the men with
his patrol car. Atkins took the skateboard off Calhoun’s car, started walking away, and
“said something to the effect that [UC Santa Cruz] were rent-a-cops and he didn’t need to
listen to [them].”
       Officer Calhoun told Atkins to stop, but Atkins ignored Calhoun’s command and
continued to walk away. Calhoun grabbed Atkins’s arm, but Atkins jerked his body
away and broke free from Calhoun’s grip. The other man and Atkins ran out of the
parking garage and got into Atkins’s truck, which was parked in a parking stall. Calhoun
ran to the truck and stood behind it.
       The engine of the truck went on. Atkins, who was in the driver’s seat, rolled down
his window and yelled that “he did nothing wrong, [and] would be forced to run
[Calhoun] over if [he] didn’t get out of his way of his car.” Officer Calhoun perceived
Atkins’s statement as a “credible threat” that Atkins “would run [him] over if [he] didn’t
get out of his way.” Fearing for his safety, Calhoun moved away, and Atkins drove away
in the truck. Based on the truck’s direction of travel, if Calhoun had not moved away, the
truck would have hit him.
       Officer Calhoun got back into his car and followed the truck. Another UC Santa
Cruz officer, Officer Flippo, arrived and stopped the truck. Calhoun approached Atkins,
who was still inside the truck, and grabbed Atkins’s left arm. Atkins told Calhoun that he
“had no right to search his vehicle and that we were rent-a-cops and we couldn’t do
anything to him.” Calhoun told Atkins “multiple times” that he was a police officer.
       Officer Flippo told Atkins that he was under arrest for “obstructing an officer.”
Atkins, who was agitated and uncooperative, was still sitting in the driver’s seat of his
truck. Flippo and Calhoun pulled Atkins out of the truck. Atkins lunged back toward the
truck. Calhoun and Flippo “went hands-on and forced him to the ground.” Atkins was
physically resisting Calhoun and Flippo by tensing and bracing his arms and “refusing to
put his hands behind his back.” Calhoun and Flippo ordered Atkins to put his hand
                                                 3
behind his back and to stop resisting. Another officer arrived, and they were able to
handcuff Atkins. While handcuffed, Atkins was “flailing” his body, and Flippo had to
put a “control hold” on him so that Calhoun could search him.
       Officer Gregory Daniel Flippo testified that, on March 10, 2017, he was working
as a sergeant with the UC Santa Cruz Police Department. He was on patrol and in
uniform. Flippo was dispatched to assist Calhoun. When Flippo saw Atkins driving the
truck, Flippo activated the emergency lights on his patrol car, pulled into the oncoming
lane of traffic, and “essentially forced [the truck] to stop in front of [him].” Flippo got
out of his car, drew his gun, and yelled at the occupants of the truck to raise their hands.
Atkins was very upset and was “basically challenging our authority to stop him saying,
you know, you have no legal authority to stop me, I do not recognize your authority. You
guys aren’t even police officers.” Flippo described how Atkins physically resisted
Flippo’s attempts to handcuff and search him.
       Ravinder Bal testified that, on March 10, 2017, she was working as a police
officer with the UC Santa Cruz Police Department. She arrived on the scene to help
Officer Calhoun and Sergeant Flippo arrest Atkins. She heard Atkins “yelling that it was
an unauthorized stop, that we had no right to contact him, that everything was just illegal
contact and that he knew his rights.” Bal observed the physical struggle between Flippo
and Atkins.
       Atkins testified that he first saw Officer Calhoun when Atkins was skateboarding
down the parking structure at approximately 20 miles per hour. Atkins thought Calhoun
endangered his life by blocking the skateboarders’ path of travel with his car when they
were “hauling balls.” Atkins told the jury, “there’s no brakes on a skateboard, that’s
common knowledge.” Atkins saw Calhoun’s car but thought it was a “security car” and
not a police car. Atkins acknowledged that the car was black and white but stated
“security forces, cop cars, sheriff’s units, they all have Crown Victoria[s].” Calhoun’s
car did not have any markings on it other than “[o]ne tiny yellow star on the side.”
                                                  4
Atkins believed that “skateboarding is not a crime.” Atkins was “in full-on panic mode.”
Atkins had never seen any of the three officers before that evening.
       Atkins acknowledged that he told Calhoun he would run him over with his truck,
but “I didn’t believe he was a cop, he was endangering my life.” Atkins did not run
Calhoun over, and Atkins did not intend to or want to run Calhoun over.
       Atkins stated that Calhoun had pointed a taser at him, but “I thought he was a
security guard. Security guards, they own guns, tasers, night sticks, all that and then
some.” Atkins agreed that Calhoun was dressed in a police uniform, but “[s]o are
security guards at shopping malls.” Atkins saw a “tin badge,” but you can “buy some
badges at the Dollar Tree.” Atkins also did not believe that Calhoun was a police officer
because Calhoun was by himself and “cops come in multiples.” Calhoun identified
himself to Atkins as a police officer, but Atkins told the jury, “[a]nybody can say I am the
police.” Referring to Calhoun, Akins stated, “I didn’t know he was an officer.”
       The trial court gave the jury several instructions relevant to the section 69 charge.
Neither counsel objected to the final wording of any of the instructions. The prosecution
argued that the jury could find Atkins guilty of section 69 both because Atkins tried to
prevent Officer Calhoun from performing a duty (by threatening to run Calhoun over
with his truck while Calhoun was trying to detain him) and because Atkins physically
resisted Calhoun (by pulling away from him multiple times while Calhoun was trying to
arrest him). The trial court gave separate instructions on each theory. (CALCRIM Nos.
2651 and 2652.)
       The trial court instructed, “The People have proceeded on two theories to establish
a violation of Penal Code section 69 as charged in Count 1. Under [o]ne theory, the
People have sought to prove that the defendant tried to prevent or deter an executive
officer from performing that officer’s duty.” The trial court instructed the jury that,
“under this theory, the People must prove that: [¶] 1. “The defendant willfully and
unlawfully used violence or a threat of violence to try to prevent or deter an executive
                                                 5
officer from performing the officer’s lawful duty; and [¶] 2. When the defendant acted,
he intended to prevent or deter the executive Officer Jack Calhoun from performing the
officer’s lawful duty” (some capitalization omitted). Among other definitions, the
instruction stated that “[s]omeone commits an act willfully when he or she does it
willingly or on purpose”; “[a] peace officer is an executive officer”; and “[a] sworn
member of [the] University of California Police Department is a peace officer” (some
italics omitted). The instruction also stated, “[t]he executive [o]fficer does not need to be
performing his job duties at the time the threat is communicated.”
       For the second theory, that Atkins “resisted an executive officer in the
performance of that officer’s duty,” the trial court instructed the jury that the People must
prove that “[t]he defendant used force or violence to resist an executive officer”; “[w]hen
the defendant acted, the officer was performing his lawful duty”; and “[w]hen the
defendant acted, he knew the executive officer was performing his duty.” This
instruction also stated that “[a] peace officer is an executive officer,” and “[a] sworn
member of [the] University of California Police Department is a peace officer” (some
italics omitted).
       The verdict form for count 1 stated, “We the jury in the above-entitled case find
the defendant, Randall Patrick Atkins, [guilty/not guilty] of resisting an executive officer,
as charged in Count 1.” Neither party objected to the verdict form for count 1 or stated
that the verdict form should also include language relating to the “first theory” of section
69—namely that Atkins had tried to prevent or deter an executive officer from
performing his duty.3




       3
          There is no indication either in the clerk’s transcript or in the reporter’s transcript
that the trial court provided the jury with two verdict forms for count 1. We therefore
assume that the verdict form that appears in the record on appeal is the only verdict form
given to the jury for this count.
                                                   6
          In his closing argument, the prosecutor stated with respect to the “second theory”
of section 69—using violence or force to resist an executive officer—“the defendant has
to know that the executive officer is performing their duty.” He added, “And, of course,
he does because, again, at some point the notion that you didn’t know that these guys
were real police officers just isn’t reasonable at all.” Defense counsel argued that “Mr.
Atkins did not believe Officer Calhoun was an officer. The car itself was a black and
white car with a small star. He didn’t see police on the back, because, again, Officer
Calhoun was facing him. And a lot of the security details now, they do have those type
of cars. And we always hear evidence or on the news of someone trying to impersonate
an officer.” In rebuttal, the prosecutor argued that the “first theory” of section 69 did not
require proof that Atkins knew that Calhoun was an officer. The prosecutor stated, “You
don’t have to know that they’re an officer to alleviate or unburden yourself of your
obligation to follow directives. It’s not a defense, otherwise there would be an additional
element [that] the defendant knew that Officer Calhoun was a police officer. It’s not
there.”
          During deliberations, the jury submitted a written question relating to (in the
words of the jury) “Theory One” of section 69. The note stated, “Does intent require that
the defendant believed Calhoun was an executive police officer?” The trial court read the
question to counsel and stated, “And I’m going to answer that, no, there’s no requirement
that he believed Calhoun was an executive officer.” Neither counsel objected to the trial
court’s proposed answer to the jury question. The trial court submitted to the jury a
written answer that stated, “There is no requirement that [t]he Defendant believed
Calhoun was an Executive Police Officer.”
          The jury found Atkins guilty of sections 69 and 148(a), as charged in counts 1 and
3, but not guilty of section 626.10(b), as charged in count 2. At sentencing, the trial court
suspended imposition of sentence, placed Atkins on formal probation for a period of
eighteen months, and ordered him to serve 60 days in the county jail and to stay away
                                                    7
from the campus of UC Santa Cruz. The trial court also imposed a number of other
conditions of probation and assessed fines and fees. Atkins timely appealed.
                                     II. DISCUSSION
       Atkins argues that the trial court failed in its duty to correctly instruct the jury on
the “first theory” of section 69—the use of a threat of violence or violence to deter an
executive officer from performing his duty—when the trial court did not inform the jury
that Atkins “was required to know, or reasonably should have known, that Calhoun was
an executive officer.” Atkins contends that the jury instruction for this theory omitted
this element of the crime, and the omission was material and not harmless. Atkins
similarly argues that the trial court erred when it answered the jury’s question by
instructing, “[t]here is no requirement that [t]he Defendant believed Calhoun was an
Executive Police Officer,” and the error was prejudicial. Atkins further maintains that his
trial counsel was constitutionally ineffective when he failed to object to the trial court’s
erroneous answer to the jury’s question. Atkins argues that reversal of his conviction of
section 69 is required to remedy the trial court’s instructional errors and his trial
counsel’s ineffective assistance.
       The Attorney General counters that the first theory of section 69 does not require
that the perpetrator of the crime know that the person they are attempting to deter is an
executive officer. In the Attorney General’s view, the language of the jury instruction
was correct because it tracked the language of the statute, and Atkins waived any
challenge to it by failing to object to the wording of the instruction. Further, even if the
trial court committed instructional error in the instruction or in its answer to the jury
question, that error was harmless because there was ample evidence that Atkins had
violated the “second theory” of section 69 by resisting arrest by force or violence. In
addition, Atkins’s trial testimony was “conflicting” and implausible and “no reasonable
juror would have believed [Atkins’s] assertions.” For the same reasons, any claim that


                                                   8
Atkins’s trial counsel was constitutionally ineffective fails because there was no legal
basis to object to the instructions, and Atkins cannot demonstrate prejudice.
       Resolving these competing views requires us to decide whether the first theory of
section 69 requires that the perpetrator know that the person he or she is attempting to
deter is an executive officer—a question of statutory interpretation that we review de
novo. (People v. Posey (2004) 32 Cal.4th 193, 218.) “In evaluating these opposing
positions, our fundamental task . . . is to determine the Legislature’s intent so as to
effectuate the law’s purpose. Because the statutory language is generally the most
reliable indicator of that intent, we look first at the words themselves, giving them their
usual and ordinary meaning. If the statutory language is unambiguous, then its plain
meaning controls. If, however, the language supports more than one reasonable
construction, then we may look to extrinsic aids, including the ostensible objects to be
achieved and the legislative history.” (People v. Ruiz, (2018) 4 Cal.5th 1100, 1105–1106
(Ruiz), citations and internal quotation marks omitted.) With these principles in mind, we
begin with the language of the statute.
       A. Elements of Section 69
       Section 69 provides in relevant part, “Every person who attempts, by means of any
threat or violence, to deter or prevent an executive officer from performing any duty
imposed upon the officer by law, or who knowingly resists, by the use of force or
violence, the officer, in the performance of his or her duty, is punishable by a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h)
of Section 1170, or in a county jail not exceeding one year, or by both such fine and
imprisonment.” (§ 69, subd. (a).) Section 69 “sets forth two separate ways in which an
offense can be committed. 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 in the performance of his or her duty.” (People v. Smith
(2013) 57 Cal.4th 232, 240 (Smith), citation and internal quotation marks omitted.) The
                                                  9
prosecution argued that Atkins had committed a violation of section 69 under both
theories.
       Atkins does not allege any error in the trial court’s instructions related to the
“second way”—to use the terminology used by the Supreme Court in Smith—of violating
section 69.4 The Attorney General contends that the principal case upon which Atkins
relies, People v. Hendrix (2013) 214 Cal.App.4th 216 (Hendrix), relates only to this
aspect of section 69. Before reaching the merits of Atkins’s argument with respect to the
attempting-to-deter portion of section 69, we briefly examine the elements of the
actually-resisting prong of the statute.
            1. Resisting an Executive Officer By Force or Violence
       “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.” (Smith, supra, 57 Cal.4th at p. 241.) The
relevant portion of the statute reads, “Every person who . . . knowingly resists, by the use
of force or violence, the officer, in the performance of his or her duty, is punishable by [a
fine and imprisonment].” (§ 69, subd. (a).) By its text, the second way of violating the
statute requires that the prosecution prove that defendant “knowingly resist[ed]” the
officer by “force or violence.” (Ibid.) This “resistance prong” of section 69 is a general
intent crime that requires “only a knowledge that the facts exist which bring the act or
omission within the provisions of this code.” (People v. Rasmussen (2010) 189
Cal.App.4th 1411, 1419 (Rasmussen).)
       The Attorney General concedes that the second way of violating section 69
requires “that the perpetrator act with the knowledge that the victim is an officer acting in

       4
        Some courts refer to the two aspects of section 69 as “attempting to deter” and
“actually resisting” an officer. (See, e.g., People v. Lopez (2005) 129 Cal.App.4th 1508,
1530.) We generally (although not exclusively) use the phrases “first way” and “second
way” to reflect the terminology employed by the Supreme Court in Smith, supra, 57
Cal.4th at pp. 240–241, and in In re Manuel G. (1997) 16 Cal.4th 805, 814.
                                                  10
furtherance of his or her duty.” Therefore, this method of violating section 69 requires
that the defendant know that the person whom he or she is resisting is an executive
officer. This aspect of the crime is captured by the third element of the instruction given
by the trial court to the jury that stated the prosecution must prove beyond a reasonable
doubt that “[w]hen the defendant acted, he knew the executive officer was performing his
duty.”
         By contrast, Atkins’s appeal focuses on the “first way” of violating section 69—
attempting to deter an officer—and argues that this aspect of the crime similarly requires
that the perpetrator know that the person they are trying to deter is an executive officer.
On this point, the Attorney General disagrees. We turn now to this question.
            2. Attempting by Threats to Deter an Executive Officer
         “The first way of violating section 69 ‘encompasses attempts to deter either an
officer’s immediate performance of a duty imposed by law or the officer’s performance
of such a duty at some time in the future.’ [Citation] The actual use of force or violence is
not required. [Citation] Further, ‘the statutory language [of the first clause of section 69]
does not require that the officer be engaged in the performance of his or her duties at the
time the threat is made.” (Smith, supra, 57 Cal.4th at pp. 240–241, italics omitted.) The
relevant portion of the statute reads, “Every person who attempts, by means of any threat
or violence, to deter or prevent an executive officer from performing any duty imposed
upon the officer by law, . . . is punishable by [a fine and imprisonment].” (§ 69, subd.
(a).) Unlike the second way of violating section 69, the text of the statute for the first
way does not include the adverb “knowingly.” (Ibid.)
         The statutory elements of the first way and the second way of violating 69 are
different. (See Smith, supra, 57 Cal.4th at pp. 241-242.) Cases involving the second
portion of section 69, therefore, are of limited utility in analyzing the first way of
violating the statute. (See Rasmussen, supra, 189 Cal.App.4th at p. 1420.) We have not
discovered—and neither party cites—any published case that examines whether, with
                                                  11
respect to the first way of committing section 69, the perpetrator must know that the
person he or she is attempting to deter is an executive officer. This omission is
unsurprising, for, as the Attorney General observes, “the defendant’s knowledge of the
officer’s status as an officer (i.e., officer qua officer) . . . almost never arises as a matter
of fact.”
       Atkins relies heavily on Hendrix, supra, 214 Cal.App.4th at p. 237, for its
statement that “Penal Code section 69 requires actual knowledge on the part of the
defendant that the person being resisted is an executive officer and that the officer is
engaged in the performance of his/her duty.” (Ibid.) However, Hendrix’s reference to
“the person being resisted” makes clear that it is discussing the second way of violating
section 69. And the facts of Hendrix, involving a physical struggle with officers
attempting to arrest the defendant, apply to the second way of violating the statute.
(Hendrix at p. 230.) Hendrix, therefore, does not clarify the knowledge, if any, required
of the defendant by the attempting-to-deter portion of section 69.
       The absence of the word “knowingly” in the first part of violating section 69 is not
itself dispositive. “[T]he requirement that, for a criminal conviction, the prosecution
prove some form of guilty intent, knowledge, or criminal negligence is of such long
standing and so fundamental to our criminal law that penal statutes will often be
construed to contain such an element despite their failure expressly to state it.” (In re
Jorge M. (2000) 23 Cal.4th 866, 872.) The California Supreme Court has rejected the
contention that “[t]he omission of ‘knowingly’ from a penal statute indicates that guilty
knowledge (scienter) is not an element of the offense,” and has, when construing a
number of penal statutes, required “guilty knowledge . . . even though the statutes did not
expressly require that the defendant act ‘knowingly.’ ” (People v. Salas (2006) 37
Cal.4th 967, 979.)
       Indeed, a number of courts have held that the first way of violating section 69 “is a
specific intent crime, requiring proof of a specific intent to interfere with the executive
                                                   12
officer’s performance of his or her duties.” (Rasmussen, supra, 189 Cal.App.4th at
p. 1420 [collecting cases]; People v. Gutierrez, 28 Cal.4th 1083, 1153–1154 [finding
error in failing to instruct on the specific intent of section 69 harmless where “there was
evidence that defendant harbored the requisite specific intent” because “the threat was
intended to deter or prevent [the officers] from performing their duties related to the
ongoing search of defendant’s cell”].) But this observation does not resolve the issue
here, because a defendant could have a specific intent to interfere with someone without
necessarily knowing that that person is an executive officer. Indeed, the prosecutor in
Atkins’s trial made that very argument when he stated, “[y]ou don’t have to know they’re
an officer.”
         For these reasons, we conclude that the text of section 69 does not resolve whether
the prosecution must prove that the person attempting to deter an executive officer knows
that the individual they seek to deter is an executive officer. To answer that question, we
turn to extrinsic aids in construing the purpose of the statute. (Ruiz, supra, 4 Cal.5th at p.
1106.)
         Direct legislative history provides little insight. Section 69 was enacted in 1872 as
part of the first codified penal code in California. (In re M. L. B. (1980) 110 Cal.App.3d
501, 503.)5 We have not located any legislative history materials (other than the fact of



         5
         Section 69, in turn, was based on sections 100 and 101 of the New York 1848–
1849 draft “Field Codes” of Civil Procedure and Criminal Procedure. (Commissioners of
the Code, The Civil Code of the State of New York (1865) (the Field Code); see People
v. Evans (2008) 44 Cal.4th 590, 594–595 [describing the influence of the Field Codes on
the original criminal statutes enacted in California].) Section 100 of the draft Field Code
provided, “Every 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,
is guilty of a misdemeanor.” (Field Code § 100.) The “second part” of section 69
corresponds to section 101 of the draft Field Code, which provided, “Every person who
knowingly resists, by the use of force or violence, any executive officer, in the
performance of his duty, is guilty of a misdemeanor.” (Field Code § 101.)
                                                  13
enactment) for section 69. In the absence of more specific legislative history, we refer to
case law exploring the objective of the statute.
       A number of courts have considered challenges to the first way of violating
section 69 premised on the argument that the provision might violate the First
Amendment “because it could be used against one who threatened lawful conduct, such
as to file a lawsuit or run for elected office.” (People v. Superior Court (Anderson)
(1984) 151 Cal.App.3d 893, 895 (Anderson).) In Anderson, the court applied a
narrowing construction to the word “threat” in the statute and limited the first way of
violating section 69 to violence or “threats of violence.” (Anderson at p. 895.) Anderson
observed that the statute’s “central requirement is an attempt to deter the executive
officer. Threat (of violence) or violence is merely the means for making the attempt to
deter.” (Id. at p. 897, italics omitted.) Anderson concluded that “Section 69 is directed
not at the threat itself, but at the attempt to deter executive action.” (Ibid.)
       The Supreme Court relied upon Anderson in its own analysis of the first way of
violating section 69 in In re Manuel G. when it stated, “To avoid the risk of punishing
protected First Amendment speech . . . the term ‘threat’ has been limited to mean a threat
of unlawful violence used in an attempt to deter the officer.” (In re Manuel G. (1997) 16
Cal.4th 805, 814-815 (Manuel G).) The Supreme Court described the “statute’s purpose”
as “prohibiting the use of threats or violence as a tool for attempting to interfere with
executive action.” (Id. at p. 819.)
       In light of the statute’s “central requirement” that the relevant threat is “an attempt
to deter the executive officer,” (Anderson, supra, 151 Cal.App.3d at p. 897, italics
omitted), we conclude that the prosecution must prove, as an element of the first way of
violating section 69, that the defendant knows that the person he or she is attempting to
deter is an executive officer. This construction fulfills the statute’s purpose of
“prohibiting the use of threats or violence as a tool for attempting to interfere with
executive action.” (Manuel G., supra, 16 Cal.4th at p. 819, italics added.) The Attorney
                                                   14
General’s proposed reading, by contrast, would bypass the statute’s central purpose, as a
perpetrator who does not know the person they are threatening is an executive officer
cannot, by definition, intend to interfere with executive action. After all, it is the intent to
interfere with executive action that is proscribed by section 69 and not generalized threats
of violence, which are addressed by other provisions in the Penal Code. (See, e.g., § 422,
subd. (a).)6
       We must consider one additional aspect of the knowledge requirement of the first
way of violating section 69. Atkins contends that, “[t]he jury should have been told that
the prosecution was required to prove that appellant actually knew, or reasonably should
have known, that Calhoun was an executive officer.” (Italics added.) While, for the
reasons stated above, we agree that the statute requires that the perpetrator of the crime
know that the person they are attempting to deter is an executive officer, we disagree with
Atkins that the “reasonably should have known” standard applies.
       Hendrix, the principal case relied upon by Atkins, states that “Penal Code section
69 requires actual knowledge on the part of the defendant that the person being resisted is
an executive officer and that the officer is engaged in the performance of his/her duty.”
(Hendrix, supra, 214 Cal.App.4th at p. 237.) However, Hendrix does not contain the
language “reasonably should have known.” (Ibid.) Similarly, the pattern jury instruction
for the second way of violating section 69 states that the prosecution must prove that
“[w]hen the defendant acted, (he/she) knew the executive officer was performing

       6
         Section 422 states, “Any person who willfully threatens to commit a crime which
will result in death or great bodily injury to another person, with the specific intent that
the statement, made verbally, in writing, or by means of an electronic communication
device, is to be taken as a threat, even if there is no intent of actually carrying it out,
which, on its face and under the circumstances in which it is made, is so unequivocal,
unconditional, immediate, and specific as to convey to the person threatened, a gravity of
purpose and an immediate prospect of execution of the threat, and thereby causes that
person reasonably to be in sustained fear for his or her own safety or for his or her
immediate family’s safety, shall be punished by imprisonment in the county jail not to
exceed one year, or by imprisonment in the state prison.” (§ 422, subd. (a).)
                                                  15
(his/her) duty,” (CALCRIM No. 2652), but does not include the “or reasonably should
have known” standard. When describing the actually resisting prong of section 69, the
Attorney General acknowledges that the crime requires “that the perpetrator act with the
knowledge that the victim is an officer acting in furtherance of his or her duty” but does
not advocate for the “reasonably should have known” language. The Attorney General
further contends that the facts elicited at trial demonstrate Atkins’s “obvious knowledge”
that Calhoun was a police officer, highlighting that, in the Attorney General’s view,
Atkins actually knew that Calhoun was an officer.
       It is true that caselaw has established that, in the context of the related crime of
resisting arrest under section 148(a)7— despite the absence of any reference to
knowledge in the text of the statute—the perpetrator “must know, or through the exercise
of reasonable care should have known, that the person attempting to make the arrest is an
officer.” (People v. Lopez (1986) 188 Cal.App.3d 592, 599.) The holding of Lopez has
been incorporated into the pattern jury instruction for section 148(a), which requires the
prosecution to prove that, “[w]hen the defendant acted, (he/she) knew, or reasonably
should have known that [the officer] was [a peace officer] performing or attempting to
perform (his/her) duties.” (CALCRIM No. 2656.)
       Despite the thematic similarity between section 148(a) and section 69, we do not
believe that the knowledge requirement of the first way of violating section 69 should be
read—absent any textual support or other evidence of legislative intent—to include the
“reasonably should have known” language from section 148(a). As far as we are aware,
no court has held that such language applies to the knowledge requirement for the second


       7
         That statute provides in relevant part, “Every person who willfully resists,
delays, or obstructs any public officer, [or] peace officer . . . in the discharge or attempt to
discharge any duty of his or her office or employment, when no other punishment is
prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by
imprisonment in a county jail not to exceed one year, or by both that fine and
imprisonment.” (§ 148, subd. (a)(1).)
                                                  16
way of violating section 69, and the pattern jury instruction does not include it.8
(CALCRIM No. 2652.) The legal analysis in Lopez on the knowledge standard for
section 148(a) is cursory and somewhat elliptical, and, in any event, does not convince us
that we should embrace a similar result when reading section 69.
       In sum, we hold that, to convict an individual of the crime of trying to deter or
prevent an executive officer from performing his or her duty—the first way of violating
section 69—the prosecution must prove that the defendant willfully and unlawfully used
violence or the threat of violence to try to prevent or deter an executive officer from
performing the officer’s lawful duty; when the defendant acted he or she intended to
prevent or deter the executive officer from performing the officer’s lawful duty; and
when the defendant acted, he or she knew that the person was an executive officer.9
       We next turn to whether, in light of our conclusion, the trial court committed error
when it instructed Atkins’s jury.




       8
         Although the Supreme Court concluded in Smith that section 148(a) is
“necessarily included within [the] second way of violating section 69,” Smith, supra, 57
Cal.4th at p. 242, the court did not discuss the distinction between the knowledge
elements of section 148(a) and section 69 and certainly did not state that the “reasonably
should have known” aspect of the knowledge element of section 148(a) applies to section
69. Instead, Smith, focused on the temporal similarities between section148(a) and the
second way of violating section 69. (Id. at pp. 241-242.) “It is axiomatic that cases are
not authority for propositions that are not considered.” (California Building Industry
Association v. State Water Resources Control Board (2018) 4 Cal.5th 1032, 1043.)
Smith, therefore, does not affect our conclusion that the first way of violating section 69
does not include the “reasonably should have known” aspect of the knowledge element of
section 148(a).
       9
         In light of our conclusion, the Advisory Committee on Criminal Jury Instructions
may wish to consider revisions to CALCRIM No. 2651. The Advisory Committee may
also wish to examine whether CALCRIM No. 2652 could more clearly articulate the
knowledge element of the second way of violating section 69. (See Hendrix, supra, 214
Cal.App.4th at p. 237.)
                                                 17
       B. Instructional Error
           1. The Jury Instructions
       Atkins argues that the jury instructions given by the trial court for the first way of
committing section 69 omitted the knowledge element that we have concluded the statute
requires. “It is well settled that no objection is required to preserve a claim for appellate
review that the jury instructions omitted an essential element of the charge.” (People v.
Mil (2012) 53 Cal.4th 400, 409 (Mil).) However, “a party may not complain on appeal
that an instruction correct in law and responsive to the evidence was too general or
incomplete unless the party has requested appropriate clarifying or amplifying language.”
(People v. Hudson (2006) 38 Cal.4th 1002, 1012, internal quotation marks omitted.)
Here, the trial court instructed the jury that, in order to find Atkins guilty of the crime, the
prosecution must prove beyond a reasonable doubt that “[w]hen the defendant acted, he
intended to prevent or deter the executive Officer Jack Calhoun from performing the
officer’s lawful duty.” Because the verb “intended” in the instruction may be read to
modify the phrase “executive officer” as well as “prevent or deter” (thus implicitly
requiring that the perpetrator know the object of his action is an executive officer),
Atkins’s challenge to the instruction amounts to a contention that the instruction was
incomplete rather than incorrect. As Atkins’s trial counsel did not object to the wording
of the instruction, Atkins has waived this objection for purposes of appellate review.
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1163.)
           2. The Trial Court’s Answer to the Jury Question
       However, we reach a different conclusion when considering the trial court’s
answer to the jury’s question. During deliberations, the jury sent a note to the trial court
asking with respect to the word “intent” in the jury instruction for the first way of
violating section 69, “[d]oes intent require that the defendant believed Calhoun was an
executive police officer?” In its written answer, the trial court responded, “There is no
requirement that [t]he Defendant believed Calhoun was an Executive Police Officer.”
                                                  18
       “We review de novo the legal accuracy of any supplemental instructions
provided.” (People v. Franklin (2018) 21 Cal.App.5th 881, 887.) Atkins’s trial counsel
did not object to the trial court’s proposed response to the jury question, which would
ordinarily forfeit Atkins’s claim of error. (People v. Salazar (2016) 63 Cal.4th 214, 248.)
However, “[n]o objection is required to preserve a claim for appellate review that the jury
instructions omitted an essential element of the charge.” (Mil, supra, 53 Cal.4th at
p. 409.) We have already concluded that the first way of violating section 69 requires
that the jury find beyond a reasonable doubt that the defendant knew the individual that
he or she intended to prevent or deter from performing his or her duty was an executive
officer. Therefore, the trial court’s answer to the jury incorrectly described a material
element of the offense, and we may review on appeal Atkins’s challenge to the
supplemental jury instruction. Having concluded that the trial court committed error, we
next consider whether the error was harmless.
       C. Prejudice
       As a general matter, “nothing results in more cases of reversible error than
mistakes in jury instructions. And if jury instructions are important in general, there is no
category of instructional error more prejudicial than when the trial judge makes a mistake
in responding to a jury’s inquiry during deliberations.” (People v. Thompkins (1987) 195
Cal.App.3d 244, 252-253.) A trial court’s failure to instruct the jury on all of the
essential elements of the charged offense is reviewed for harmless error according to the
standard set out in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). (Neder v.
U.S. (1999) 527 U.S. 1, 15 (Neder).) The Chapman test asks “whether it appears ‘beyond
a reasonable doubt that the error complained of did not contribute to the verdict
obtained.’ ” (Ibid.)
       The California Supreme Court has stated, “Neder instructs us to ‘conduct a
thorough examination of the record. If, at the end of that examination, the court cannot
conclude beyond a reasonable doubt that the jury verdict would have been the same
                                                 19
absent the error—for example, where the defendant contested the omitted element and
raised evidence sufficient to support a contrary finding—it should not find the error
harmless.’ ” (Mil, supra, 53 Cal.4th. at p. 417, quoting Neder, supra, 527 U.S. at p. 19.)
For this type of error, “the presumption is that we must reverse, unless we find the error
harmless beyond a reasonable doubt.” (In re Loza (2018) 27 Cal.App.5th 797, 805
(Loza), italics omitted.)
       After a thorough examination of the record of Atkins’s trial, we “cannot conclude
beyond a reasonable doubt that the jury verdict would have been the same absent the
error.” (Neder, supra, 527 U.S. at p. 19.) Atkins told the jury multiple times that he did
not believe that Calhoun was a police officer, and he provided specific reasons for his
conclusion. If the jury credited Atkins’s testimony, then his testimony alone would
support a conclusion that he did not know Calhoun was a police officer. (See CALCRIM
No. 301 [“[T]he testimony of only one witness can prove any fact.”].) Similarly,
Atkins’s defense counsel did not concede that Atkins knew Calhoun was a police officer.
(Cf. People v. Merritt (2017) 2 Cal.5th 819, 831 [“One situation in which instructional
error removing an element of the crime from the jury’s consideration has been deemed
harmless is where the defendant concedes or admits that element.”].) Further, “[u]nder
Chapman, we also take particular note of a prosecutor’s closing arguments.” (Loza,
supra, 27 Cal.App.5th at p. 805.) The prosecutor told Atkins’s jury that Atkins did not
have to know that Calhoun was a police officer. The prosecutor said explicitly, “It’s not
a defense, otherwise there would be an additional element [in the jury instructions] . . .
[i]t’s not there.” These statements highlight the central nature of Atkins’s knowledge of
Calhoun’s identity to Atkins’s trial.
       The Attorney General maintains that, if the trial court committed instructional
error, that error was harmless beyond a reasonable doubt because Atkins’s testimony was
“not credible.” On appeal, however, we are unable to make that determination, for “it is
the exclusive province of the trial judge or jury to determine the credibility of a witness.”
                                                 20
(People v. Penunuri (2018) 5 Cal.5th 126, 142.) We cannot determine how the jury
would have judged Atkins’s credibility if it had been properly instructed that, in order to
convict him of the first way of committing section 69, the prosecution must prove beyond
a reasonable doubt that Atkins knew Calhoun was a police officer.10 Even if it is “highly
unlikely” that the jury would have believed Atkins that he thought Calhoun was a
security guard, that is not the applicable legal standard for Chapman error. (Loza, supra,
27 Cal.App.5th 797, at p. 806.)
       The Attorney General urges us to find no prejudice because of the significant
evidence elicited in Atkins’s trial that he had violated section 69 by actively resisting the
officers—the second way of violating the statute. However, “[w]hen a trial court
instructs a jury on two theories of guilt, one of which was legally correct and one legally
incorrect, reversal is required unless there is a basis in the record to find that the verdict
was based on a valid ground.” (People v. Chiu (2014) 59 Cal.4th 155, 167.)11 “Unlike


       10
           The jury’s conviction of Atkins under section 148(a) for count 3 does not
resolve whether it would have convicted him for section 69 if properly instructed. The
jury instruction for section 148(a) instructed the jury that the prosecution must prove that
“[w]hen the defendant acted, he knew, or reasonably should have known, that Officer
Jack Calhoun and/or Sgt. Greg Flippo was a peace officer performing or attempting to
perform his duties.” Therefore, the jury could have convicted Atkins for count 3 based
either on Atkins’s conduct toward Flippo, who was not the subject of the section 69
charge, or because they believed Atkins “reasonably should have known” that Calhoun
was a peace officer—a legal standard that we have held is inapplicable to the first way of
violating section 69.
        11
           We recognize that the California Supreme Court is currently considering in
People v. Aledamat (2018) 20 Cal.App.5th 1149, review granted July 5, 2018, S248105,
the question “Is error in instructing the jury on both a legally correct theory of guilt and a
legally incorrect one harmless if an examination of the record permits a reviewing court
to conclude beyond a reasonable doubt that the jury based its verdict on the valid theory,
or is the error harmless only if the record affirmatively demonstrates that the jury actually
rested its verdict on the legally correct theory?” (Issues Pending Before the California
Supreme Court in Criminal Cases (Jan. 25, 2019),
<https://www.courts.ca.gov/documents/JAN2519crimpend.pdf> [as of January 30, 2019],
archived at:<https://perma.cc/ZYJ5-JTRP>. Nevertheless, we conclude that the error
                                                  21
with other types of instructional error, prejudice is presumed with this type of error.”
(People v. Jackson (2018) 26 Cal.App.5th 371, 378 (Jackson), italics omitted.) We
conclude that the Attorney General has not overcome the presumption of prejudice,
because we cannot determine that the jury convicted Atkins based solely on the second
theory of violating section 69.
       The prosecutor argued that Atkins violated section 69 both by attempting to deter
Officer Calhoun and by actually resisting him. The prosecutor stated in closing
argument, “the uncontested evidence is that the defendant made this threat and also
offered the physical resistance in the form of violence and force when he fought with the
police. [¶] Whichever way you look at it, theory one or theory two, he’s guilty of Count
1.” Similarly, the trial court instructed the jury that, “[t]he People have proceeded on two
theories to establish a violation of Penal Code section 69 as charged in Count 1” and gave
the jury separate instructions for each theory. The jury’s question about whether Atkins
had to know Calhoun was a police officer was specifically addressed to “[t]heory [o]ne,”
indicating that the jury was considering that option in its deliberations. As the
prosecutor’s arguments, the jury instructions, and the jury’s question all addressed the
first way of violating the statute, we cannot determine that the jury verdict on count 1 was
based solely on the second way of violating section 69.12
       For these reasons, the Attorney General has not persuaded us beyond a reasonable
doubt that the instructional error did not contribute to Atkins’s verdict. We therefore
reverse Atkins’s conviction on count 1.13


here is not harmless under either of the tests articulated in the question presented in
Aledamat.
        12
           Because the prosecutor’s argument and the jury instructions referred to both
ways of violating section 69, we do not find dispositive the limitation in the verdict form
to the second theory of section 69. (See Jackson, supra, 26 Cal.App.5th at pp. 379–380.)
        13
           In light of this conclusion, we do not reach Atkins’s argument that his trial
counsel was constitutionally ineffective for failing to object to the trial court’s answer to
the jury question about section 69.
                                                 22
                                    III. DISPOSITION
       The conviction for section 69 is reversed. Atkins’s sentence is vacated in its
entirety, and the matter is remanded to the trial court for a possible retrial on count 1. If
the prosecutor elects not to retry Atkins, or at the conclusion of any retrial, the trial court
is to resentence Atkins.




                                                  23
                                 ______________________________________
                                            DANNER, J.




WE CONCUR:




____________________________________
      GREENWOOD, P.J.




____________________________________
      GROVER, J.




People v. Atkins
H044999
Trial Court:       Santa Cruz County Superior Court,
                   Case No.: 17CR01497
Trial Judge:       Hon. Stephen S. Siegel
Attorneys for      Xavier Becerra
Plaintiff/Respon   Attorney General of California
dent:              Gerald A. Engler
The People         Chief Assistant Attorney General
                   Jeffrey M. Laurence
                   Senior Assistant Attorney General
                   Eric D. Share
                   Supervising Deputy Attorney General
                   John H. Deist
                   Deputy Attorney General
Attorney for       Under appointment by the Court of Appeal
Defendant/Appe     Brian Curtis McComas
llant:
Randall Atkins
