                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 29 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ROBERT ALAN WILSON,                              No. 08-55758

             Petitioner - Appellant,             D.C. No. 8:05-cv-00446-GPS-SGL

  v.
                                                 MEMORANDUM *
KEN CLARK, Warden,

             Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen G. Larson, District Judge, Presiding

                      Argued and Submitted February 1, 2010
                               Pasadena, California

Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.

       Robert Alan Wilson appeals the denial of his federal habeas petition

challenging his conviction for violating California Penal Code § 69, resisting an

executive officer. Wilson argues that there was insufficient evidence that Officer




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ellison was performing a lawful duty, an element of § 69, to sustain a conviction.

We reverse the district court and grant Wilson’s petition for habeas relief.

      The state court decision denying Wilson’s sufficiency of the evidence claim

was unreasonable under AEDPA. The state court’s conclusion that Officer Ellison

was performing a lawful duty merely because Officer Ellison did not use excessive

force in detaining Wilson effectively reads the “lawful duty” element out of § 69

and is thus contrary to Jackson v. Virginia, 443 U.S. 307 (1979).1 See Goldyn v.

Hayes, 444 F.3d 1062, 1070 (9th Cir. 2006). The state court’s decision would find

an arbitrary, malicious, or even knowingly illegal action by the officer to be

“lawful.” Moreover, the decision relies on both the formal fallacy of denying the

antecedent—concluding that because Officer Ellison’s action was not unlawful due

to the use of excessive force, the action must have been lawful—and on an illogical

application of § 69 to the privilege to use force against an officer who is using

excessive force, see People v. Curtis, 450 P.2d 33, 37 (Cal. 1969).

      Having concluded that the state court decision was unreasonable, we assess

the substance of Wilson’s sufficiency claim without the deference that AEDPA


      1
         This error is particularly problematic because the defendant’s use of force
is an element of § 69. See Cal. Penal Code § 69; People v. Lacefield, 68 Cal. Rptr.
3d 508, 513 (Ct. App. 2007). The state court’s reasoning would find lawful any
action by an officer, no matter how egregious, as long as the officer refrained from
using excessive force.
                                          2
otherwise requires. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).2

Wilson is correct that Kolender v. Lawson, 461 U.S. 352, 361 (1983), precluded a

finding that Wilson’s detention was justified by California Penal Code § 647(e).

Because federal courts are bound by the state court’s construction of § 647(e), see

BMW of N. Am. v. Gore, 517 U.S. 559, 577 (1996), the Supreme Court’s

conclusion that § 647(e) was unconstitutionally vague applied to the statute itself.

See also Kolender, 461 U.S. at 356-61. We further agree with Wilson’s contention

that there was insufficient evidence to find that Wilson’s detention was lawful

under California Penal Code § 647(f). Section 647(f) requires that the individual

be so intoxicated that he or she is impeding the use of a public right of way or is




      2
        The dissent concludes that “the California Court of Appeal did not
unreasonably apply precedent in holding that Ellison reasonably suspected that
Wilson posed a danger to himself or others on account of public drunkenness.”
The California Court of Appeal made no such holding. Instead, it rested its
decision solely on the excessive force analysis we describe above.
                                          3
“unable to exercise care for his or her own safety or the safety of others.”3 See Cal.

Penal Code § 647(f). The mere smell of alcohol, placement of a cup several feet

from Wilson, and Wilson’s vulgar refusal to speak with the police simply did not

provide Officer Ellison with reasonable suspicion to detain Wilson for possibly

violating § 647(f). Cf. Sundance v. Mun. Court, 729 P.2d 80, 97 n.17 (Cal. 1986)

(en banc) (noting the difficulty in proving that a defendant is intoxicated to this

degree).

      The district court decision is REVERSED and the petition for habeas corpus

is GRANTED as to Wilson’s conviction under § 69.




      3
         It is here in particular that the analysis by our colleague in dissent goes
awry: there is no evidence suggesting a reasonable suspicion that Wilson, who was
sitting down on the stairs and was neither slurring nor swaying, was dangerously
intoxicated. While Officer Ellison may have been disconcerted by Wilson’s
rudeness, Wilson was within his rights to vulgarly reject the officer’s efforts to
question him. And although Officer Ellison may have preferred to talk to Wilson
at the bottom of the stairs, absent reasonable suspicion that Wilson was committing
a crime, Officer Ellison lacked authority to demand that Wilson move—without
any evidence that Wilson was committing a crime, the dissent’s allusion to officer
safety is bootstrapping. Finally, that the area where Officer Ellison encountered
Wilson was one in which shopkeepers had complained of vandalism provides no
evidence that Wilson in particular was committing a crime.
                                           4
                                                                               FILED
Wilson v. Clark, No. 08-55758                                                  MAR 29 2010

                                                                          MOLLY C. DWYER, CLERK
GRABER, Circuit Judge, dissenting:                                         U.S. COURT OF APPEALS



      The only issue before us is whether sufficient evidence supported Robert

Alan Wilson’s conviction for resisting an executive officer, including whether the

officer was performing a lawful duty when he detained Wilson. Because sufficient

evidence supported Wilson’s conviction, I respectfully dissent.

      The California Court of Appeal’s statement of facts, which is not challenged

for accuracy, set forth that Wilson was seated on the stairs of a commercial

building, closed for the evening, in an area that had been vandalized and used by

transients for urination and defecation. Detective Roy Ellison and his partner, both

dressed in gang unit uniforms, asked Wilson about his well-being and asked

whether he knew that he was in a closed commercial area. Wilson responded

angrily by cursing at the officers. Ellison detected the smell of alcohol coming

from Wilson and noticed an open container sitting next to him on the stair. Ellison,

suspecting that Wilson might be too intoxicated for his own safety and that of

others, asked Wilson for identification and then asked him to come down the stairs.

Wilson again cursed angrily and continued to refuse in the same vulgar way when

Ellison repeated his request. Fearing that Wilson’s anger was escalating, Ellison

became concerned for the officers’ safety because Wilson was seated about 10 feet

above them on the staircase. He climbed up next to Wilson, placed one hand on
his shoulder, and grasped Wilson’s wrist with his other hand. As Ellison attempted

to stand Wilson up, Wilson strained against Ellison’s move, and both men fell

down the stairs. At the base, Wilson regained his footing first and began flailing

wildly about, landing a punch to Ellison’s nose, sending blood in all directions.

Both men landed on the ground, and Ellison managed to gain the upper position,

which allowed his partner to subdue Wilson by using pepper spray.

      When reviewing the sufficiency of the evidence, "the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The

unchallenged facts here gave rise to a reasonable suspicion that Wilson was

committing the offense of public drunkenness as a danger to himself or others at

the time that the detention began. Thus, the California Court of Appeal did not

unreasonably apply precedent in holding that Ellison reasonably suspected that

Wilson posed a danger to himself or others on account of public drunkenness.




                                          2
