Filed 5/27/15 P. v. Hoffman CA2/6
                   NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or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

                                      SECOND APPELLATE DISTRICT

                                                    DIVISION SIX


THE PEOPLE,                                                                   2d Crim. No. B254122
                                                                            (Super. Ct. No. F493245)
     Plaintiff and Respondent,                                              (San Luis Obispo County)

v.

CURTIS LAVERN HOFFMAN,

     Defendant and Appellant.


                   Curtis Lavern Hoffman appeals a judgment following his conviction of
resisting an executive officer (Pen. Code, § 69),1 a felony (count 1); public intoxication
(§ 647, subd. (f)) (counts 2 and 6); resisting a peace officer (§ 148, subd. (a)(1)), a
misdemeanor (counts 3 and 4); assault (§ 240), a misdemeanor (count 5); and unauthorized
lodging (§ 647, subd. (e)) (count 7). The jury also found Hoffman had a prior conviction
for making criminal threats. (§§ 422, 667, subd. (d), 1170.12 , subds. (b) & (c).)
                   We conclude, among other things, that the trial court did not err by only
instructing the jury on the offense of unlawfully using force or violence to resist an
executive officer performing his duty (§ 69) on count 1. There was no substantial evidence
to support an instruction on the lesser-included offense of misdemeanor resisting arrest
(§ 148, subd. (a)(1)) on count 1. We affirm.



1
    All statutory references are to the Penal Code.
                                             FACTS
                                    The July 19th Arrest
               On the morning of July 19, 2013, Paul Nelson was walking his dogs near the
Morro Shores Mobile Home Park when he heard Hoffman yell, "I'll kill that dog." Nelson
responded, "I couldn't let you hurt my dog." Hoffman threw a beer bottle towards Nelson's
head. Nelson contacted Sheriff Deputy Eduardo Castaneda. Nelson told Castaneda that
Hoffman "was acting crazy" and he was in a "brushy area" near the mobile home park. No
camping is allowed in this area and the park had periodically posted no trespassing signs.
               Castaneda testified he saw an aluminum can and a "big glass" bottle "fly out"
toward Nelson. He asked Nelson to wait by the patrol car so that he could "attempt to
contact" Hoffman who was inside "this brushy tree area." Castaneda located Hoffman who
was "unsteady on his feet." Hoffman was "slurring his speech," and Castaneda smelled "a
strong odor of alcohol."
               Castaneda attempted to arrest Hoffman "for being intoxicated in public." He
asked Hoffman to get down on his knees. Hoffman refused. Castaneda pulled a Taser
from his holster. Hoffman started to "go down to his knees" and Castaneda was able to
handcuff him. They walked toward the patrol car for 10 to 15 feet. Hoffman then
"dropped to his knees" and then pretended to make "a loud snoring sound." Hoffman
refused to walk to the patrol car. Castaneda and another officer had to drag him through a
sandy area for 75 yards toward the patrol car. Hoffman then walked to the patrol car and
spit sand at the officers.
                                   The August 5th Arrest
               On the morning of August 5, 2013, Castaneda received a "disturbing-the-
peace call" involving the area behind the Morro Shores Mobile Home Park. As he
approached the area, he heard Hoffman yelling, "Get off my land" and "You're
trespassing." Castaneda saw Hoffman near a tent. There were several empty beer bottles
and beer cans on the ground. Hoffman was intoxicated. He ran into the tent and
"attempted to zip up the front flap of the tent." Castaneda decided to arrest Hoffman for
public intoxication and "illegal lodging."

                                               2
               Castaneda went to the tent and handcuffed Hoffman. He asked Hoffman to
stand up and walk to the patrol car. Hoffman "ignored" him. Castaneda and Sheriff
Deputies Jason Nadal and Sandra Arauza lifted Hoffman and carried him in the direction
of the patrol car. Then they placed Hoffman on a blanket and dragged the blanket 30 to 40
yards, but the "sand was too thick." Castaneda and Nadal placed "compliance" holds on
Hoffman and got him to his feet. Hoffman began walking to the patrol car.
               Castaneda testified that, 15 to 20 yards before reaching the patrol car,
Hoffman kicked him in his ankle. He felt "a sharp pain" and told Hoffman "to stop kicking
[him]." Hoffman "immediately tried to strike [Castaneda] again." Castaneda said
Hoffman "lifted his leg once again and brought it down to where my left ankle was, but
[Castaneda] was able to move it." Hoffman also tried to resist by spitting in the direction
of the officers. Castaneda said the officers placed "a spit mask" on him to prevent him
from spitting and a "ripp restraint" around his legs and ankles to prevent him from kicking.
               Arauza testified she did not see Hoffman kick Castaneda. She "noticed
Deputy Castaneda moved," and Castaneda told Hoffman "not to kick him."
               Nadal testified he did not remember "anything specifically happening"
during the arrest of Hoffman. He was asked, "Did you ever hear Deputy Castaneda say
'stop kicking me'?" Nadal: "I did hear words to that effect."
               Hoffman did not testify.
               In count 1 of the information, the People alleged that during the August 5th
incident Hoffman committed a felony (§ 69) by 1) "willfully and unlawfully" attempting
"by means of threats and violence to deter and prevent" Castaneda "from performing a
duty imposed upon such officer by law," and 2) "knowingly resist[ing] by the use of force
and violence said executive officer in the performance of his/her duty."
               The trial court gave an instruction to the jury on the second prong of the
section 69 felony for count 1. It stated the People had to prove Hoffman "unlawfully used
force or violence to resist" the arrest. It did not to give a lesser-included offense
instruction.


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                                        DISCUSSION
                        Not Instructing on a Lesser-included Offense
              Hoffman contends the trial court erred by only giving the jury an instruction
on felony resisting an officer by force or violence (§ 69) on count 1. He claims the trial
court committed reversible error by not also instructing jurors on the lesser-included
offense of misdemeanor resisting arrest (§ 148, subd. (a)(1)). We disagree.
              For count 1, the trial court instructed jurors, "To prove that the defendant is
guilty of this crime [§ 69], the People must prove that: [¶] 1. The defendant unlawfully
used force or violence to resist an executive officer; [¶] 2. When the defendant acted, the
officer was performing his lawful duty; AND [¶] 3. When the defendant acted, he knew the
executive officer was performing his duty." The court did not give an instruction on a
lesser-included offense for count 1.
              "'It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.'" (People v. Smith (2013) 57 Cal.4th 232, 239.) "That obligation has been held
to include giving instructions on lesser included offenses when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged." (People v.
Breverman (1998) 19 Cal.4th 142, 154.)
              "Section 69 '"sets forth two separate ways in which an offense can be
committed."'" (People v. Carrasco (2008) 163 Cal.App.4th 978, 984.) "'"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."'" (Ibid.) "The first type of offense can be established by '"[a] threat,
unaccompanied by any physical force"' and may involve either an officer's immediate or
future performance of his duty." (Id. at p. 985.) "The second type of offense involves
'"force or violence"' by the defendant against an officer engaged in his duties at the time of
the defendant's resistance." (Ibid.)


                                               4
               "Section 148, subdivision (a)(1) provides in part, '[e]very person who
willfully resists, delays, or obstructs any . . . peace officer . . . in the discharge or attempt to
discharge any duty' has committed a punishable offense." (People v. Carrasco, supra, 163
Cal.app.4th at p. 985.) "Because an accused cannot have resisted arrest forcefully without
also having resisted arrest, . . . section 148, subdivision (a) is a lesser included offence to
section 69's second prong." (Ibid.)
               But "the failure to instruct with section 148, subdivision (a)" is "not error"
where "there was no substantial evidence that would support a conviction of the lesser
offense." (People v. Carrasco, supra, 163 Cal.App.4th at p. 985.)
               In Carrasco, the defendant was convicted of resisting an executive officer by
force or violence under section 69. On appeal, appellant claimed the trial court erred by
not giving the jury a lesser-included offense instruction on misdemeanor resisting arrest.
(§ 148, subd. (a).) The Court of Appeal disagreed. It noted that while resisting arrest,
appellant "placed his hands and arms underneath his body, was 'yelling, kicking, [and]
cussing,' and said he would 'kick [the officers'] ass[es].'" (People v. Carrasco, supra, 163
Cal.App.4th at p. 986, italics added.) It said, "There was no contrary evidence . . . ."
(Ibid.) "Hence, the jury would have had no rational basis to conclude appellant wrestled
with the officers . . . but the struggle did not involve force or violence; accordingly, the
trial court properly instructed the jury by not instructing it with section 148, subdivision (a)
as a lesser included offense." (Ibid.) The court said, "[I]f appellant resisted the officers at
all, he did so forcefully, thereby ensuring no reasonable jury could have concluded he
violated section 148, subdivision (a)(1), but not section 69." (Id. at p. 985.)
               Carrasco is analogous to the present case. The People note that "the
prosecution's only theory underlying the violation of section 69 was that appellant used
force or violence by kicking Deputy Castaneda." The prosecutor told jurors the section 69
offense occurred "on August 5th. This was the kick." (Italics added.) The People's
evidence showed Hoffman kicked Castaneda while Castaneda was performing his duty of
arresting him.


                                                 5
              Hoffman notes that neither Arauza nor Nadal saw him kick Castaneda.
Arauza may not have been in a position to see the kick and Nadal did not remember it. But
they both corroborated Castaneda's account when they testified they heard him tell
Hoffman to stop kicking him. Arauza saw Castaneda move before making that statement.
The People also introduced a photograph of Castaneda's "left pant leg and left boot."
Castaneda testified the photograph showed "a dirt mark in the area where Mr. Hoffman
kicked me." Hoffman did not present evidence to contradict Castaneda. There was no
substantial evidence to support a lesser-included offense instruction on count 1.
              The judgment is affirmed.
              NOT TO BE PUBLISHED.



                                          GILBERT, P. J.
We concur:



              YEGAN, J.



              PERREN, J.




                                             6
                               Jacquelyn H. Duffy, Judge

                       Superior Court County of San Luis Obispo

                           ______________________________


             Christina A. Barnes, under appointment by the Court of Appeal, for
Defendant and Appellant.
             Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Lance E. Winters, Senior Assistant Attorney General, Mary Sanchez,
Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.




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