Filed 3/28/14 P. v. Cuadro CA2/5
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



THE PEOPLE,                                                          B247396

         Plaintiff and Respondent,                                   (Los Angeles County Super. Ct.
                                                                      No. PA074182)
         v.

CHRISTOPHER ENRIQUEZ CUADRO,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel
B. Feldstern, Judge. Affirmed.
         Meredith J. Watts, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, and James William Bilderback II,
Supervising Deputy Attorney General, for Plaintiff and Respondent.


                                     _____________________________
          Defendant and appellant Christopher Enriquez Cuadro was convicted by jury in
count 1 of assault with a deadly weapon on a peace officer (Pen. Code, § 245, subd. (c)),1
in count 2 of willfully evading a peace officer (Veh. Code, § 2800.2, subd. (a)), in count
3 of taking a vehicle without the owner’s consent (Veh. Code, § 10851, subd. (a)),2 and
in count 4 of driving under the influence of drugs (Veh. Code, § 23152, subd. (a)). In a
bifurcated court trial, the court found defendant had suffered a prior serious or violent
felony conviction (§ 667, subd. (a)), a prior conviction under the three strikes law (§§
1170.12, subds. (a)-(d), 667, subds. (b)-(i)), and had served three prior prison terms (§
667.5, subd. (b)). The trial court sentenced defendant to 21 years 4 months in state
prison.
          Defendant contends the trial court committed prejudicial error by failing to sua
sponte instruct the jury in count 1 that conviction of assault with a deadly weapon on a
peace officer required the jury to find that Officer Ryan Caplette was in the lawful
performance of his duties at the time of the offense. (See Judicial Council of Cal. Crim.
Jury Instns. (2012-2013) CALCRIM No. 2670 [“Lawful Performance: Peace Officer”].)
Defendant reasons there was substantial evidence Officer Caplette was acting outside the
lawful performance of his duty by using unreasonable force when he stood in the middle
of the street with gun drawn while ordering defendant to stop. We conclude there was no
substantial evidence to support the instruction and affirm.


                                            FACTS


          Defendant entered the Bombay Spiceland store and restaurant on the afternoon of
July 29, 2012, where he harassed and frightened customers and employees with his


1         All statutory references are to the Penal Code, unless otherwise indicated.
2      As to count 3, defendant waived his right to a jury trial on an allegation that he had
suffered a prior conviction under Vehicle Code section 10851, subdivision (a), which
elevated the charged offense to a violation of section 666.5 (unlawful taking the vehicle
of another without the owner’s consent with a prior conviction).


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“weird” behavior, causing the store owner to twice call 9-1-1 for police assistance.
Defendant was very tense and angry, looking out the windows and stating the police were
looking for him. Defendant asked everyone in the store for a ride.
       Officers Caplette and Noreen Herbert responded to the call of a “415” man
disturbing the peace at Bombay Spiceland. Defendant ran outside when he saw the
police. The officers were directed to defendant running away. Defendant entered a truck
owned by Rafael Delgado. Delgado had moved the truck just outside the motorcycle and
jet ski business he owned on Reseda Boulevard. He left the key inside the truck,
intending to quickly move it back inside the store.
       Officer Caplette, who was one foot from defendant beside the truck, ordered
defendant to stop. Delgado ran outside of his store, repeatedly yelling for the officers to
shoot defendant. Officer Caplette pulled his gun when defendant ignored his commands,
feeling the situation could escalate to the use of deadly force. Defendant started the truck
and drove off, requiring Officer Caplette to step back so his foot would not be run over.
Defendant drove a short distance but came to the end of the street at a cul-de-sac. He
turned the truck around, so it was now facing up the street, in the direction of Officer
Caplette.
       Defendant accelerated the truck, toward where Officer Caplette had taken a
position in the center of the street. The officer had his gun drawn, yelling for defendant
to stop. Defendant drove at a speed of 50-60 miles per hour, swerving toward Officer
Caplette. Officer Caplette jumped to the side, with the truck barely missing him. As this
was happening, Officer Herbert was excitedly calling on the radio for backup assistance
from other officers.
       Defendant drove the truck back to Reseda Boulevard, a main thoroughfare, where
a uniformed officer assigned to the gang unit began a pursuit. The gang officer activated
his car’s lights and sirens. Defendant drove at a high rate of speed, sometimes on the
wrong side of the street, ignoring traffic signals, and nearly colliding with several cars.
After defendant travelled 1.6 miles on Reseda Boulevard, the truck was brought to a stop
by an officer executing a “pit” maneuver, and defendant was taken into custody. He was


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administered a breath test that was negative for alcohol. A drug recognition expert
examined defendant and concluded he was under the influence of methamphetamine and
unable to safely operate a motor vehicle. Analysis of a urine sample from defendant
confirmed the expert’s opinion.


                                                           DISCUSSION


           Defendant’s only contention on appeal is that the trial court erred in failing to sua
sponte instruct the jury pursuant to CALCRIM No. 2670 that the prosecution was
required to prove Officer Caplette was in the lawful performance of his duties at the time
of the charged assault with a deadly weapon.3 The court raised the issue during the


3      CALCRIM No. 2670 provides, in pertinent part, as follows: “The People have the
burden of proving beyond a reasonable doubt that (insert name, excluding title) was
lawfully performing (his/her) duties as a peace officer. If the People have not met this
burden, you must find the defendant not guilty of (insert name[s] of all offense[s] with
lawful performance as an element).

“A peace officer is not lawfully performing his or her duties if he or she is (unlawfully
arresting or detaining someone/ [or] using unreasonable or excessive force when making
or attempting to make an otherwise lawful arrest or detention).

“. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

“C. Use of Force

“[Special rules control the use of force.

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

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



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discussion of jury instructions, considered argument from both the prosecution and
defense, then ultimately ruled there was no substantial evidence to support giving the
instruction. We agree with the trial court the instruction was not required under the facts
of this case, and in any event, any error was nonprejudicial.


Standard of Review


       A trial court must instruct sua sponte on the general principles of law relevant to
the issues raised by the evidence. (People v. Michaels (2002) 28 Cal.4th 486, 529-530.)
General principles of law governing the case are those commonly or closely and openly
connected with the facts of the case before the court. (Ibid.) We review a claim of error
in jury instructions de novo. (People v. Guiuan (1998) 18 Cal.4th 558, 569; People v.
Russell (2006) 144 Cal.App.4th 1415, 1424.)


Assault with a Deadly Weapon on a Peace Officer


       “Any person who commits an assault with a deadly weapon or instrument, other
than a firearm, . . . upon the person of a peace officer . . . , and who knows or reasonably
should know that the victim is a peace officer . . . engaged in the performance of his or
her duties, when the peace officer . . . is engaged in the performance of his or her duties,
shall be punished by imprisonment in the state prison for three, four, or five years.” (§
245, subd. (c).) Our Supreme Court has held that “it is now the law of California that a


“If a peace officer uses unreasonable or excessive force while (arresting or attempting to
arrest/ [or] detaining or attempting to detain) a person, that person may lawfully use
reasonable force to defend himself or herself.

“A person being arrested uses reasonable force when he or she: (1) uses that degree of
force that he or she actually believes is reasonably necessary to protect himself or herself
from the officer’s use of unreasonable or excessive force; and (2) uses no more force
than a reasonable person in the same situation would believe is necessary for his or her
protection.]”


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person may not use force to resist any arrest, lawful or unlawful, except that he may use
reasonable force to defend life and limb against excessive force . . . .” (People v.
Curtis (1969) 70 Cal.2d 347, 357, overruled on other grounds in People v. Gonzalez
(1990) 51 Cal.3d 1179, 1218-1222.)
         “[W]hen a statute makes it a crime to commit any act against a peace officer
engaged in the performance of his or her duties, part of the corpus delicti of the offense is
that the officer was acting lawfully at the time the offense was committed. (In re Manuel
G. (1997) 16 Cal.4th 805, 815; People v. Gonzalez [supra,] [at p.] 1179, 1217 [applying
rule to section 190.2, subdivision (a)(7)].) Disputed facts relating to the question whether
the officer was acting lawfully are for the jury to determine when such an offense is
charged. (People v. Gonzalez, supra, 51 Cal.3d at p. 1217.)” (People v. Jenkins (2000)
22 Cal.4th 900, 1020.) The rule is an objective one that operates without regard to a
defendant’s subjective state of mind. “Rather, the rule is based upon the statutory
definition of the crime, and ‘flows from the premise that because an officer has no duty to
take illegal action, he or she is not engaged in “duties,” for purposes of an offense defined
in such terms, if the officer’s conduct is unlawful . . . .’ (People v. Gonzalez, supra, 51
Cal.3d at p. 1217.) Accordingly, the defendant’s subjective understanding that the
officer’s conduct was lawful is not an element of proof.” (People v. Jenkins, supra, at p.
1021.)




                                              6
Analysis


       The trial court correctly ruled the record contains no substantial evidence Officer
Caplette used unreasonable force or was otherwise acting unlawfully at the time
defendant attempted to run him down in the street. Accordingly, the court had no sua
sponte duty to instruct pursuant the jury pursuant to CALCRIM No. 2670, as the rules
stated in that instruction were not general principles of law connected with the facts of
the case before the court. Moreover on this record, defendant could not have suffered
prejudice from the lack of the instruction.
       Defendant fails to cite to specific authority suggesting that, on the facts presented
in this case, Officer Caplette used unreasonable force at the time of the offense charged in
count 1. While we have no doubt the general legal principle relied on by defendant is
correctly stated, there is no case law to support its application to this case.
       An officer is entitled to use deadly force on a felon driving a vehicle in the
officer’s direction. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 536-537 [officer
was entitled, as a matter of law, to discharge his weapon at a murder suspect who drove
toward him in an attempt to hit the officer and flee].) “The law has never been applied to
suggest that there is only one reasonable action that an officer may take under a given set
of circumstances. There will virtually always be a range of conduct that is reasonable.
As long as an officer’s conduct falls within the range of conduct that is reasonable under
the circumstances, there is no requirement that he or she choose the ‘most reasonable’
action or the conduct that is the least likely to cause harm and at the same time the most
likely to result in the successful apprehension of a violent suspect, in order to avoid
liability for negligence. It would be unreasonable to require police officers in the field to
engage in the sort of complex calculus that would be necessary to determine the ‘best’ or
most effective and least dangerous method of handling an immediate and dangerous
situation, particularly when officers are forced to make split-second decisions under tense
and often perilous conditions.” (Id. at pp. 537-538.)




                                               7
       By the time Officer Caplette stood in the street with his gun drawn, shouting for
defendant to stop, the officer was already aware that defendant (1) was the subject of two
calls to 9-1-1 over his disturbing behavior in Bombay Spiceland, (2) had fled
immediately upon seeing the officers arrive, (3) ignored the officers’ commands to stop
running, (4) entered a truck belonging to Delgado (who was yelling repeatedly for the
officers to shoot defendant) and refused to comply with Officer Caplette’s order to exit
the truck, (5) drove off in the truck, requiring Office Caplette to step back to avoid
having his foot run over, and (6) drove down a dead-end street, executed a U-turn, and
accelerated toward Officer Caplette’s direction at a rate of speed estimated to be 50-60
miles per hour.
       Defendant offered no evidence to contradict these facts. He instead argues one
interpretation of the evidence was that he was just trying to run away from the police, and
that Officer Caplette could have responded differently—he did not need to stand in the
street, and if he placed himself out of harm’s way, he had no need to draw his gun.
Defendant’s contention that this case merely involved a suspect fleeing from officers is
belied by the evidence detailed above. More importantly, whether there were other
tactics Officer Caplette might have employed, nothing in the law requires him to adopt
the one deemed reasonable in hindsight by defendant. (Brown v. Ransweiler, supra, 171
Cal.App.4th at pp. 536-537.)
       Defendant was involved involved a fleeing felon trying to use a stolen truck driven
at a high rate of speed to run over a pursuing officer, placing that officer and others in the
area in danger. Officer Caplette was entitled, as a matter of law, to draw his weapon in
response to that threat. (Brown v. Ransweiler, supra, 171 Cal.App.4th at pp. 536-537.)
“Where the officer has probable cause to believe that the suspect poses a threat of serious
physical harm, either to the officer or to others, it is not constitutionally unreasonable to
prevent escape by using deadly force. Thus, if the suspect threatens the officer with a
weapon or there is probable cause to believe that he has committed a crime involving the
infliction or threatened infliction of serious physical harm, deadly force may be used if
necessary to prevent escape, and if, where feasible, some warning has been given.”


                                              8
(Tennessee v. Garner (1985) 471 U.S. 1, 11-12; see also Scott v. Harris (2007) 550 U.S.
372, 386 [“a police officer’s attempt to terminate a dangerous high-speed car chase that
threatens the lives of innocent bystanders does not violate the Fourth Amendment, even
when it places the fleeing motorist at risk of serious injury or death”].)
       Officer Caplette displayed considerable restraint by repeatedly ordering defendant
to stop and by not discharging his weapon in defense of his own life and that of others in
the area. There is simply no evidence that Officer Caplette used unreasonable force,
which would have justified an instruction pursuant to CALCRIM No. 2670.
       Assuming the instruction was required under the facts in this case, we conclude
any error was harmless, regardless of the standard of review. (Chapman v. California
(1967) 386 U.S. 18, 23-24; People v. Watson (1956) 46 Cal.2d 818, 836.) The
overwhelming evidence establishes that defendant presented a threat to the safety of
others throughout the charged offenses. He stole Delgado’s car in the presence of the
officers, fled in the face of repeated commands to stop, and when cornered on the cul-de-
sac, instead of surrendering, he set his sights on running down Officer Caplette. There is
no reasonable possibility or probability that had the jury been instructed pursuant to
CALCRIM No. 2670, the jury would have found that Officer Caplette acted with
unreasonable force at the time of the assault charged in count 1.




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                                   DISPOSITION


      The judgment is affirmed.




             KRIEGLER, J.




We concur:




             TURNER, P. J.




             MINK, J.*




*      Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.


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