Filed 7/18/13 In re Anthony N. CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     FIFTH APPELLATE DISTRICT


In re ANTHONY N., a Person Coming
Under the Juvenile Court Law.


THE PEOPLE,                                                                            F066247

         Plaintiff and Respondent,                                          (Super. Ct. No. 511564)

                   v.
ANTHONY N.,                                                                         OPINION

         Defendant and Appellant.


                                                   THE COURT*
         APPEAL from a judgment of the Superior Court of Stanislaus County. Susan D.
Siefkin, Judge.
         Kristen Owen, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Ward A. Campbell and Sean M.
McCoy, Deputy Attorneys General, for Plaintiff and Respondent.

                                                        -ooOoo-

*        Before Cornell, Acting P.J., Franson, J., and Peña, J.
       On September 25, 2012, the court sustained allegations in a petition (Welf. & Inst.
Code, § 602) charging appellant, Anthony N., with resisting arrest (Pen. Code, § 148,
subd. (a)(1)).
       On October 25, 2012, the court adjudged appellant a ward of the court and placed
him on probation.
       On appeal, Anthony contends there is insufficient evidence to support the court’s
finding that he violated Penal Code section 148, subdivision (a)(1). We affirm.
                                          FACTS
                                   The Prosecution Case
       On March 5, 2012, at approximately 5:45 p.m., Modesto Police Officer Daniel
Starr was on patrol traveling south on Sutter Avenue south of Rouse Avenue when he
heard three to five gunshots. A few seconds later a black Lexus traveling slowly, north
on Sutter Avenue passed him. Officer Starr heard another gunshot and saw a large
amount of dust and debris “kick up” next to the driver’s window of the Lexus, which
caused him to believe that one of the Lexus’s occupants fired a gun. Officer Starr made a
U-turn and radioed dispatch that he had just observed a drive-by shooting. He followed
the Lexus with his siren and emergency lights on as it ran two stop signs, turned right
(east) on Rouse Avenue and traveled past Colorado Avenue before stopping next to a
barn-like building located on the south side of the street.
       After the Lexus’s driver and passenger exited the car, the passenger ran
southbound, jumped over a chain-link fence, and ran away. The driver, whom Officer
Starr identified in court as Anthony, appeared confused, disobeyed Officer Starr’s
commands to get on the ground, and jumped over the same chain-link fence. However,
after the driver climbed back over the fence, Officer Starr pointed his gun at him and
ordered him to raise his hands and get on the ground. This time, the driver obeyed and



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got on the ground. After a few seconds, however, the driver got up, jumped over the
same fence, and ran out of Officer Starr’s field of vision.
       Officer Starr knew other units were on the way so he backed up his patrol car to
the intersection of Rouse Avenue and Colorado Avenue to set up a perimeter.
       Approximately 50 officers from different agencies soon arrived on the scene.
Several officers went to a house on Rouse Avenue where Anthony lived, which was
located on the south side of the street a short distance east of where the Lexus stopped.
Anthony and several family members were in the fenced front yard yelling at the officers
as six dogs ran around barking. The officers eventually entered the front yard and
ordered everyone, including Anthony, to the ground. However, Anthony and his brother
ran into the house. Officer Charlene Young then used the public address speaker on a
patrol car to direct Anthony and everyone else in the house to come out with their hands
up. Five to fifteen minutes later when Anthony and his brother came out of the house,
Anthony was handcuffed and placed in a patrol car. Officer Starr was still at his position
maintaining a perimeter when Anthony was taken into custody.
                                      DISCUSSION
       Count 6 of the petition alleged,

              “On or about March 5, 2012, minor did commit a misdemeanor,
       RESISTING ARREST, violation of Section 148(a)(1) of the California
       Penal Code, in that the minor did willfully and unlawfully resist, delay and
       obstruct OFFICER STARR, who was then and there a public officer of the
       MODESTO POLICE DEPARTMENT discharging and attempting to
       discharge a duty of his office.”
       Anthony contends the evidence did not establish beyond a reasonable doubt that
he was the driver of the Lexus who refused to obey Officer Starr’s commands to get on
the ground. He further contends that because Officer Starr was not present at the
residence when he was arrested, the evidence was insufficient to support the “court’s
specific finding that [he] willfully and unlawfully resisted, delayed and obstructed Officer

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Starr.” According to Anthony, in order for the court to have found he resisted, delayed or
obstructed a peace officer in the performance of his duties, the petition needed to make
this allegation with respect to the officers who were actually at the scene when he was
arrested. We disagree.
       “To determine the sufficiency of the evidence to support a conviction, an appellate
court reviews the entire record in the light most favorable to the prosecution to determine
whether it contains evidence that is reasonable, credible, and of solid value, from which a
rational trier of fact could find the defendant guilty beyond a reasonable doubt.” (People
v. Kipp (2001) 26 Cal.4th 1100, 1128.)
       “‘The legal elements of a violation of [Penal Code] section 148, subdivision (a)
are as follows: (1) the defendant willfully resisted, delayed, or obstructed a peace officer,
(2) when the officer was engaged in the performance of his or her duties, and (3) the
defendant knew or reasonably should have known that the other person was a peace
officer engaged in the performance of his or her duties. [Citations.]’ [Citation.] The
offense is a general intent crime, proscribing only the particular act (resist, delay,
obstruct) without reference to an intent to do a further act or achieve a future
consequence. [Citation.]” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329.)
       Here, Officer Starr radioed dispatch that he was chasing suspects involved in a
drive-by shooting and his call resulted in more than 50 peace officers responding to the
area where the Lexus stopped. After the occupants of the Lexus fled from Officer Starr,
he moved his patrol car to the intersection of Rouse Avenue and Colorado Avenue in
order to establish a perimeter. While Officer Starr was positioned at that location,
Anthony and his brother disobeyed orders by other officers in front of his residence to get
on the ground, and both juveniles ran in the house. Further, Anthony did not exit the
house until several minutes after Officer Young ordered him to do so on a public address
speaker. By disobeying the officers who ordered him to get down on the ground and to

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exit the house, Anthony delayed and obstructed the officers attempting to enter the yard
in the performance of their duties. They also delayed and obstructed Officer Starr in the
performance of his duties because it caused him to have to remain at his location,
maintaining a perimeter, longer than he otherwise would have if Anthony and his brother
had immediately complied with the other officers’ orders to get on the ground. Thus,
there is no merit to Anthony’s contention that the evidence does not support the specific
allegation in the petition that he resisted, delayed, or obstructed Officer Starr in the
performance of his duties.
       Moreover, even if there was a variance between the pleading and proof of the
resisting arrest charge, reversal would not be required. A defendant “forfeit[s] his right to
object to an alleged variance between the pleading and the proof by failing to raise the
objection in the trial court.” (People v. Maury (2003) 30 Cal.4th 342, 427 (Maury).) As
explained by the court in People v. Meraviglia (1925) 73 Cal.App. 402, “A defendant
may not be permitted to submit to a trial on the merits without objection, taking his
chances of obtaining a favorable verdict, and reserve, in the event of an adverse
judgment, any objection which he may have to mere irregularities in the form of
indictment or pleading, for an attack in the appellate court for the first time.” (Id. at
p. 407.) Since Anthony did not object to variance between the petition and the proof at
his jurisdictional hearing, he forfeited his right to raise this issue on appeal.
       In any event, “‘[t]he test of the materiality of variance in an information is whether
the pleading so fully and correctly informs a defendant of the offense with which he is
charged that, taking into account the proof which is introduced against him, he is not
misled in making his defense.’ [Citation.]” (Maury, supra, 30 Cal.4th at p. 427.)
Anthony has failed to show or even assert that he was prejudiced by the variance. Nor do
we find that the variance was of such a substantial character as to have misled Anthony in
the preparation of his defense. (People v. Collins (1960) 54 Cal.2d 57, 60.) During

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closing arguments defense counsel addressed Anthony’s conduct in running from the
front yard into the house after he was instructed by officers to get on the ground.1 This
clearly demonstrates that the variance did not mislead defense counsel in preparing
Anthony’s defense. Under these circumstances, the variance was immaterial.
                                     DISPOSITION
       The judgment is affirmed.




1        During closing arguments, defense counsel argued: “As to the resisting arrest,
your Honor, there’s no evidence there was a warrant when they were in the house so they
don’t have to leave. But in the event [the] Court were to find it true, I would understand.
I’ll just address that one area and exigent circumstances. There’s no reasonable evidence
there were exigent circumstances either to allow entry without a warrant. But basically
the entry into the residence -- [¶] I’ll leave it at that, your Honor. Thank you.”



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