Filed 7/23/14 P. v. Belton 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                     (Sacramento)



THE PEOPLE,                                                                                  C073615

                   Plaintiff and Respondent,                                     (Super. Ct. No. 12F04897)

         v.

MICHAEL WAYNE BELTON,

                   Defendant and Appellant.




         A jury convicted defendant Michael Wayne Belton of misdemeanor resisting
arrest (Pen. Code, § 148)1 and battery (§ 243, subd. (c)(2)) against Officer Jason Welsh,
and misdemeanor resisting arrest against Officer Justin Wanger (§ 148). The trial court
found that defendant had sustained a prior serious felony conviction and had served five
prior prison terms. The trial court sentenced defendant to an eleven-year prison term.
         Defendant argues there were two instructional errors, and argues the two resisting
offenses should be stricken as lesser included offenses to the battery conviction. We




1   Further references to a section are to the Penal Code unless otherwise indicated.

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shall strike the conviction for resisting Officer Welsh as a lesser included offense to
battery of Officer Welsh, but shall conclude that the conviction for resisting Officer
Wanger was a separate offense from battery on Officer Welsh. We shall otherwise affirm
the judgment.
                   FACTUAL AND PROCEDURAL BACKGROUND
       Defendant was placed under arrest for an offense not at issue here by Sacramento
Police Officers Jason Welsh and Justin Wanger and transported to the mail jail.
Defendant was cooperative when he was arrested. The jail intake nurses determined
defendant was unfit for incarceration due to high blood pressure. Officers Welsh and
Wanger took defendant to the hospital for treatment.
       Defendant was treated in a curtained-off area of the emergency room. Officer
Welsh handcuffed defendant’s left arm to the gurney, and left his right arm free for
medical personnel to treat him. When defendant was ready to leave, Officer Welsh
reached across him and removed the portion of the handcuff that was attached to the
gurney rail. Officer Welsh did not adjust the portion of the handcuff attached to
defendant’s left arm. Defendant’s handcuff did not appear to be too tight. As Officer
Welsh was doing this, defendant screamed and brought his left hand up towards his face,
carrying Officer Welsh’s hand toward defendant’s face, and bit down on Officer Welsh’s
hand just below the thumb.
       Officer Welsh lost control of the handcuff, which allowed defendant to move
toward the exit. Officer Wanger, thinking defendant was attempting to flee, intercepted
him, grabbing his upper torso while Officer Welsh tried to get control of the handcuff.
The three of them ended up on the ground, with Officer Welsh on top of defendant still
trying to take control of the handcuff. Defendant did not comply with the officers’
directions to put his hands behind his back, and instead tried to place them under his
body. The officers did not strike defendant, nor use a baton, Taser, or firearm.



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       After the struggle, Officer Wanger examined defendant, who did not appear
injured and did not complain of any injuries.
       Alfie Amor, a nurse, heard a commotion and saw the officers on top of defendant,
telling him to put his arms behind his back. She did not see the officers hit or kick
defendant, or use any instrument on him.
       Jigger Sarmiento, another nurse, heard the commotion, but did not see the
struggle. He looked at defendant after the struggle, and defendant did not complain of
any injuries.
       The bite to Officer Welsh’s hand broke the skin and caused a minimal amount of
bleeding. Officer Welsh was treated by a doctor in the emergency room, and received a
tetanus shot and some antibiotics. Officer Welsh later learned defendant had tested
positive for Hepatitis C. As of trial, Officer Welsh had not tested positive for the virus.
       When defendant was finally booked into jail, the intake nurse noted that he had a
small “goose egg” on the right side of his head.
       Defendant called one of the nurses to testify on his behalf, who stated she saw the
bite wound on Officer Welsh’s hand, which she described as moist and red, but not
bleeding.
       Defendant testified. He stated that Officer Welsh tightened the cuff on his left arm
before taking the cuff off the gurney. Defendant told Officer Welsh it was too tight, and
when he moved his hand, Officer Welsh grabbed the handcuff and yanked him and threw
him to the floor. Defendant stated Officer Welsh grabbed one of his hands, slammed him
on the floor, and struck him four or five times. Defendant stated he bit Officer Welsh
during the struggle in self-defense.




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                                       DISCUSSION
                                          I
                                    CALCRIM No. 2670
       Defendant was charged in count one with resisting a police officer (Welsh) in the
performance of his duty and in count two with battery of a police officer in the
performance of his duties. (§§ 69, 243.) He was also charged in count three with
misdemeanor resisting a peace officer (Wanger) in discharge of his duty, which the trial
court instructed was also a lesser included offense to count one. Defendant argues the
jury instruction defining a peace officer’s lawful performance of duty (CALCRIM No.
2670) improperly included a sentence that told the jury defendant could not use force to
resist the officer if he knew or reasonably should have known the officer was arresting or
detaining him. He argues the inclusion of the sentence implied he could be found guilty
of resisting a police officer even if the officer was using excessive force in the arrest,
making the arrest unlawful.
       The charged offenses required the prosecution to prove that the police officers
were lawfully performing their duties as peace officers. Accordingly, the trial court gave
CALCRIM No. 2670. Defendant objects to the inclusion of the italicized portion below:

               “The People have the burden of proving beyond a reasonable doubt
       that officers Justin Wanger and Jason Welsh were lawfully performing their
       duties as peace officers. If the People have not met this burden, you must
       find the defendant not guilty of preventing an officer from performing his
       duties as charged in Count 1, felony battery against an officer [as] charged
       in Count 2, resisting an officer as charged in Count 3, and misdemeanor
       battery against an officer, a lesser crime to battery charged in Count 2.

             “A peace officer is not lawfully performing his duties if he is using
       unreasonable or excessive force in his duties.

              “Special rules control the use of force.

            “A peace officer may use reasonable force to arrest or detain
       someone, to prevent escape, or overcome resistance, or in self-defense.



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               “If a person knows or reasonably should have known that a peace
       officer is arresting or detaining him, the person must not use force or any
       weapon to resist an officer’s use of reasonable force.

               “If a peace officer uses unreasonable or excessive force while
       arresting or attempting to arrest a person, that person may lawfully use
       reasonable force to defend himself.

               “An arrested person uses reasonable force when he uses that degree
       of force that he actually believes is reasonable to protect himself from the
       officer’s use of unreasonable or excessive force, and he uses no more force
       than a reasonable person in the same situation would believe is necessary
       for his protection.” (Italics added.)
       Defendant argues the italicized sentence should not have been included because
the use note to CALCRIM No. 2670 makes clear that the language does not apply to a
charge under section 148. The use note states that if the instruction “is only relevant to a
charge of violating Penal Code section 148” the court must not give the italicized
sentence. (Use Note to CALCRIM No. 2670 (2013) p. 537.) However, if the case
involves a charge under section 148 “as well as other offenses in which lawful
performance is an element, the court may give the bracketed sentence but must also give
the sentence that begins with ‘However, you may not find the defendant guilty of
resisting arrest.’” (Id. at pp. 537-538.) That sentence ends, “if the arrest was unlawful,
even if the defendant knew or reasonably should have known that the officer was
arresting him.” (CALCRIM No. 2670.)
       Because defendant was charged with battery against a peace officer engaged in the
performance of his duties in addition to a violation of section 148, it was not improper to
give the sentence defendant challenges, which is a statement of the law set forth in
section 834a. The instruction also should have included the sentence: “However, you
may not find the defendant guilty of resisting arrest if the arrest was unlawful, even if the
defendant knew or reasonably should have known that the officer was arresting him.”
(CALCRIM No. 2670.) Thus, defendant’s complaint is not that the jury was given the
italicized sentence quoted above, but that it was not told that it could not find him guilty


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of resisting arrest if the arrest was unlawful. He argues the omission was prejudicial
because the jury could have assumed he had no right to resist detention, even if the
officers were using excessive force against him.
       The instructions taken as a whole do not support the assumption defendant claims.
Instead, the instructions made clear that one of the elements the jury was required to find
before convicting defendant of resisting was that the police officer was lawfully
performing his duties. The jury was instructed that the prosecution was required to
prove, “the defendant willfully and unlawfully used violence to try to prevent or deter an
executive officer from performing the officer’s lawful duty . . . .” The instructions also
made clear to the jury that it could not find this element if the police officers were using
unreasonable or excessive force. The instructions repeated this statement -- “[a] peace
officer is not lawfully performing his duties if he is using unreasonable or excessive force
in his duties” -- five times. It was given once in connection with the section 69
instruction, once in connection with the section 243, subdivision (c)(2) instruction, once
in connection with the lesser included offense of misdemeanor battery of a police officer,
once in connection with section 148, subdivision (a), and once as part of the CALCRIM
No. 2670 instruction.
       Additionally, the jury was instructed that self-defense was a defense to all three
charged crimes.
       People v. White (1980) 101 Cal.App.3d 161 (White), cited by defendant and the
basis of the CALCRIM use note, is distinguishable. The instruction given in White,
CALJIC No. 9.55, stated:

                “ ‘If a person has knowledge or by the exercise of reasonable care
       should have knowledge that that person is being arrested by a peace officer,
       it is the duty of such person to refrain from using force to resist such arrest
       whether the arrest is either lawful or unlawful unless unreasonable or
       excessive force is being used to make the arrest. [Citation.]




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              “ ‘A peace officer is not engaged in the performance of the officer’s
       duties if the officer makes or attempts to make an unlawful arrest.’ ”
       (White, supra, 101 Cal.App.3d at p. 166, fn. 2.)
       The instructions defining an unlawful arrest in White did not include arrests made
with excessive force. (White, supra, 101 Cal.App.3d at pp. 166-167.) The court
concluded the instructions were incomplete because they did not explain the relationship
between excessive force in making the arrest and the defendant’s rights, and did not
include any instruction on defendant’s theory of self-defense. (Id. at p. 166.)
       Unlike White, the trial court in this case instructed the jury that if the officer used
unreasonable or excessive force, he was not lawfully performing his duties. The trial
court further instructed that in order to find defendant guilty of the charged offenses, the
jury had to find that the officers were lawfully performing their duties when the
defendant resisted arrest and committed a battery. Also in this case, self-defense
instructions were given, and the jury was instructed that defendant was not guilty of any
of the charges if it found defendant acted in self-defense.
       People v. Moreno (1973) 32 Cal.App.3d Supp. 1, also cited by defendant is
likewise distinguishable. In that case the jury was instructed that if the defendant knew
or should have known he was being arrested, “it is the duty of such person to refrain from
using force to resist such arrest, whether the arrest is either lawful or unlawful (unless
unreasonable or excessive force is being used to make the arrest).” (Id. at p. 5.) There
was no similar instruction in this case that defendant had a duty to refrain from using
force whether or not the arrest was lawful.
       The instructions taken as a whole were not likely to mislead the jury, thus there
was no error.
                                              II
                                      Flight Instruction
       The trial court gave the following flight instruction at the request of the
prosecution:


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               “If the defendant fled or tried to flee immediately after he was
        lawfully arrested for a crime, that conduct may show that he was aware of
        his guilt. If you conclude that the defendant fled or tried to flee, it is up to
        you to decide the meaning and importance of that conduct. However,
        evidence that the defendant fled or tried to flee cannot prove guilt by itself.”
        Defendant argues the trial court erred because in this case there was no attempted
flight immediately after his arrest. The only flight occurred later at the hospital.
Defendant argues the instruction was irrelevant.
        An irrelevant instruction is error, but is “generally ‘“only a technical error which
does not constitute ground for reversal.”’” (People v. Cross (2008) 45 Cal.4th 58, 67.)
Such error is subject to the traditional Watson2 test, and reversal is required only if it is
reasonably probable the result would have been more favorable to the defendant had the
error not occurred. (People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.)
        The error in this case was instructing the jury that flight may indicate
consciousness of guilt where it occurs immediately after lawful arrest, because
defendant’s attempt to flee did not occur immediately after arrest. However, because the
error is not prejudicial, i.e., it is not reasonably probable the result would have been more
favorable to defendant absent the error, we will not reverse.
        The jury was instructed that some of the instructions might not apply, and that a
particular instruction was not intended to suggest anything about the facts. Additionally,
the complained-of instruction itself indicated to the jury that it had to decide whether
defendant fled or tried to flee after arrest, and further instructed that such evidence could
not itself prove guilt. If the jury did believe that defendant’s attempt to flee after
committing the crimes of battery and resisting indicated a consciousness of guilt, which
was the prosecutor’s argument to the jury, this instruction actually benefitted defendant
by telling the jury that this was not of itself evidence of guilt. The error was harmless.




2   People v. Watson (1956) 46 Cal.2d 818, 836.

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       Having found only one instructional error, which was harmless, we also reject
defendant’s claim of cumulative error.
                                            III
                                   Multiple Convictions
       Defendant argues both counts one and three, the resisting counts, must be reversed
because they are both lesser included offenses of count two, battery on a police officer.
       Count one charged defendant with resisting Officer Welsh, and count two charged
defendant with battery upon Officer Welsh. A defendant cannot be convicted of both an
offense and a necessarily included offense based on the same act. (People v. Reed (2006)
38 Cal.4th 1224, 1227.) Resisting a police officer is a lesser included offense within a
charge of battery on a police officer. (People v. Jones (1981) 119 Cal.App.3d 749, 755.)
The People agree that the conviction for count one, resisting Officer Welsh, must be
stricken because defendant may not be convicted of both battery on a police officer and
the lesser included offence of resisting a police officer. As the sentence for count one
was concurrent, defendant’s total prison time will not be reduced.
       The People argue the conviction for count three, resisting Officer Wanger, was not
a necessarily included offense of count two, battery upon Officer Welsh because those
acts were directed at different victims.3 We agree.
       For purposes of section 654, which prohibits multiple punishments for the same
act or omission, the crime of battery on one police officer is punished separately from the
crime of resisting arrest on another police officer, even though the two crimes are part of



3 The second amended information charged defendant in count three with resisting
Officers Wanger and Welsh; however, the verdict for count three state that the jury found
defendant guilty of “violation of Section 148(a) of the Penal code of the State of
California, defendant resisted Sacramento Police Department Officer Wanger as charged
Count Three.” The prosecutor explained in closing argument that “[t]he lesser in Count
One pertains to Officer Welsh, and the elements in Count three, resisting arrest, pertain to
Officer Wanger.”

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the same indivisible course of conduct. (People v. Martin (2005) 133 Cal.App.4th 776.)
The multiple victim exception applies because there are corresponding distinct offenses
for each victim. (People v. Brannon (1924) 70 Cal.App. 225, 235.) Likewise here, the
resisting offense directed toward Officer Wanger is not a lesser included offense of the
battery of Officer Welsh, but a separate crime which may be separately punished. Also
because of the multiple victim exception, we reject defendant’s claim that the punishment
for count three should have been stayed pursuant to section 654.
                                           IV
                                     Pitchess Motion
        Defendant filed a Pitchess motion4 below to review the personnel records of the
two officers involved in his arrest. The trial court5 reviewed the personnel records in
camera. It reviewed Officer Walsh’s records for the issues of excessive force and
dishonesty, and Officer Wanger’s records with regard to the issue of dishonesty only.
The court found one incident alleging excessive force with regard to Officer Welsh, and
ordered the witness and contact information disclosed under a protective order.
        Defendant requests we independently review the transcript of the in camera review
to determine whether the trial court complied with the proper procedures and whether it
abused its discretion in determining what records should be disclosed. We have reviewed
the transcript, and have determined the trial court followed proper procedures and did not
abuse its discretion.




4   Pitchess v. Superior Court (1974) 11 Cal.3d 531.
5   Kenny, J.

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                                      DISPOSITION
       Defendant’s conviction on count one, resisting arrest, is stricken because it is a
lesser included offense to count two. In all other respects the judgment is affirmed.



                                             BLEASE                    , Acting P. J.


We concur:


         NICHOLSON                 , J.


         HOCH                      , J.




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