Filed 5/12/20




                        CERTIFIED FOR PUBLICATION

           IN THE APPELLATE DIVISION OF THE SUPERIOR COURT

                 STATE OF CALIFORNIA, COUNTY OF FRESNO



THE PEOPLE,                          )   Sup. Ct. Appeal No. 2816
                                     )
            Plaintiff and            )   Sup. Ct. Case No. M18931682
            Respondent,              )
                                     )   OPINION
v.                                   )
                                     )
                                     )
BILLY RAY GERBERDING,                )
                                     )
            Defendant and            )
            Appellant.               )
                                     )


      APPEAL from a judgment of the Superior Court of Fresno

County, Gary R. Orozco, Judge.       Reversed.1

      Attorneys and Law Firms

      Frederick Hurst, attorney for defendant/appellant Billy Ray

Gerberding.

      Melani Jones, attorney for plaintiff/respondent Fresno County

District Attorney’s Office.

1 This opinion was originally issued by the court on May 12, 2020.      It was
certified for publication on May 29, 2020, which is within the time that the
appellate division retained jurisdiction. This opinion has been certified for
publication in the Official Reports.   It is being sent to the Fifth District
Court of Appeal to assist the Court of Appeal in deciding whether to order the
case transferred to the court on the court’s own motion under Rules 8-1000 –
8.1018.
     Opinion

     D. Tyler Tharpe, J.

                                      I.

                                INTRODUCTION

     A law enforcement officer’s mistake of law must be reasonable

when arresting someone.       But, while “reasonable men make mistakes

of law, too,”2 the law must be “genuinely ambiguous” “requir[ing]

hard interpretive work,” thus posing “a really difficult or very
hard question of statutory interpretation.”3          We hold that when an

officer arrests someone under an unreasonable mistake of law, the

officer lacks probable cause and the arrest is unlawful.                 Thus,

when an officer is not lawfully performing his duties in arresting

someone, a person nonviolently resisting, obstructing, or delaying

that unlawful arrest cannot be convicted of violating Penal Code

section 148, subdivision (a)(1).4

     Billy Ray Gerberding (appellant) appeals from a judgment of
conviction finding him guilty of violating section 148.             Appellant

contends the trial court erred when it failed to instruct the jury

that excessive force is a valid defense to a charge of resisting

arrest.     He   also   contends there     was   insufficient    evidence   to

support the jury’s verdict finding him guilty because he did not

willfully disobey the officer’s orders, the officer did not have

probable cause to arrest him, and the officer used excessive force
during the arrest.       Because we reverse for insufficiency of the

2 Heien v. North Carolina (2014) 574 U.S. 54, 61 (Heien).
3 Id., at p. 70 [J. Kagan concurring].
4 Penal Code section 148, subdivision (a)(1), provides, in pertinent part:

“Every person who willfully resists, delays, or obstructs any peace officer . .
. in the discharge of his or her office or employment . . . shall be punished .
. ..” Unless otherwise noted, all references to a section are to Penal Code
section 148, subdivision (a)(1).
                                     -2-
evidence,     we    need    not   address        the   remainder     of    appellant’s

contentions.

                                           II.

                                         FACTS

       Fresno Police Officer Omar Khan is a member of the Fresno

Police Department’s Homeless Task Force Unit.                     His duties include

enforcing     provisions     of    the     Fresno      Municipal    Code    (FMC)    and

providing security detail for City of Fresno                       sanitation crews
cleaning up homeless camp sites.                 Officer Kahn is familiar with

FMC section 13-109.         The Fresno Police Department has interpreted

FMC section 13-109 to mean that if a person is obstructing 51% of

the sidewalk, then police will ask that person to move.                      However,

if    there   is    room   for    people    to    pass,    then    police    will    not

intervene.     Officer Khan’s understanding is that FMC section 13-

109 applies to sidewalks as well as streets, and that he had cited

other people for violating FMC section 13-109.
       On October 25, 2018, Officer Kahn was on duty, in uniform,

and   on   patrol    in a    marked vehicle.             He was    dispatched       to   a

homeless camp at Peach and Olive Avenues due to complaints about a

homeless camp obstructing the sidewalk.                   On arrival, he observed

three male individuals gathered around a cart made of multiple

pallets and a tarp.         The area has busy traffic, with an apartment

building and a store nearby.               The officer noticed that the cart
was immobile on the sidewalk with one of its wheels broken off.

The cart was blocking the sidewalk, forcing anyone trying to use
the sidewalk to go into the street in order to get past the

obstruction.        Since the street is busy in that area, the officer

believed it would create a danger to the public.

                                           -3-
     One of the men by the cart, later identified as appellant,

stated to Officer Khan that the cart was broken and could not be

moved.   Officer Khan told appellant that the cart would have to be

moved.   He also told appellant that some of the contents of the

cart could be stored for up to 90 days.          Appellant stated that he

wanted the entire cart stored.         The officer told appellant that he

could not store pets, food or soiled clothes.           Appellant became

upset and agitated, claiming that he was being harassed.             Officer
Kahn warned appellant that he could be arrested and go to jail if

he did not move the cart, and his property would be either stored

or destroyed.    Officer Kahn told appellant at least four times to

remove   his   property   from   the    cart.   Appellant   knew   that   the

officer had given him orders.          Another Fresno Police Officer gave

appellant the same order to move his belongings from the blocked

sidewalk hours before Officer Kahn arrived on the scene.            At every

turn, appellant refused to move the cart or remove any of its
contents.

     When appellant told Officer Khan that he was not going to

remove any of his property and began to turn and walk away,

Officer Kahn told appellant that he was going to be placed under

arrest for obstruction of the sidewalk.         As appellant was walking

away, Officer Kahn reached out for appellant, grabbing his left

wrist and telling him that he was under arrest.              Appellant was
directed to place both of his hands behind his back.               Appellant

became rigid and tense.     Appellant was saying that he did not want
to go to jail and began pulling away from the officer.             Appellant

began to turn toward Officer Khan’s right side, which is where he

wears his gun, which made the officer nervous.               Officer Kahn

                                       -4-
activated his body cam when he started struggling with appellant.

Officer Khan ordered appellant to comply, but appellant refused

and said “no.”         He also resisted having his hands put behind his

back, which prevented the officer from putting handcuffs on.

       As appellant was trying to twist away, the officer swept his

legs    out    from    under    him   and      they    both   went      to   the    ground.

Appellant      continued       to   try   to   get     up   and   get    away      from   the

officer.       The officer was able to pin appellant and get handcuffs
on him at that point.               Despite many commands from the officer,

appellant continued to be uncooperative.                    At some point during the

arrest, Officer Khan had to call in backup officers when he felt

that    he     was    “in   over    his   head”       and   losing      control     of    the

situation.       Appellant repeatedly cursed officer Khan during the

arrest.

       During the altercation, appellant stated “let me go” and “let

me do what I have to do” and that he did not want to go to jail.
After Officer Khan swept appellant’s leg with his own left leg,

and straddled him, he did not put his knee on appellant’s neck.

The officer thought it was possible that appellant was armed, but

he found no weapons after searching appellant.

                                           III.

                                      DISCUSSION

       Appellant argues Officer Khan was not lawfully performing his
duties because the officer lacked probable cause to arrest him for

violating FMC section 13-109.                  In his view, FMC section 13-109
only prohibits a person from sitting or standing in the street,

and    there    was    no   evidence appellant          himself      was     blocking     the



                                            -5-
sidewalk.         Respondent counters it is reasonable to infer that “a

person’s belongings are inclusive of their person.”

        1.       Standard of Review

        A    judgment    of    conviction will      not    be   reversed   on appeal

unless there is no substantial evidence supporting it.                     (People v.

Bard (1968) 70 Cal.2d 3, 4-5.)                 The reviewing court must review

the whole record in the light most favorable to the judgment below

to determine whether it discloses substantial evidence – that is,
evidence which is reasonable, credible and of solid value – such

that a reasonable trier of fact could find the defendant guilty

beyond a reasonable doubt.              (People v. Johnson (1980) 26 Cal.3d

557, 578.)

        In reviewing the record, the court may neither reweigh the

evidence         nor   evaluate   witness      credibility.      (People    v.   Ochoa

(1993)       6    Cal.4th     1199,   1206.)      Resolution     of   conflicts   and

inconsistencies in the testimony is the exclusive province of the
trier       of   fact.      Moreover, unless       the    testimony   is physically

impossible or inherently improbable, testimony of a single witness

is sufficient to support a conviction.                (People v. Young (2005) 34

Cal.4th 1149, 1181.)

        2.       Analysis

        A defendant may not be convicted of an offense against a

peace officer engaged in the performance of his or her duties,
unless the officer was acting lawfully.                   (In re Manuel G. (1997)

16 Cal.4th 805, 815; People v. White (1980) 101 Cal.App.3d 161,
166.)        “An officer is under no duty to make an unlawful arrest.”

(People v. Curtis (1969) 70 Cal.2d 347, 354, disapproved on other

grounds in People v. Gonzalez (1990) 51 Cal.3d 1179, 1222.)                        An

                                            -6-
officer who arrests a citizen but lacks probable cause to make the

arrest is not lawfully performing his duties.                     (Id. at p. 354.)

“The rule flows from the premise that because an officer has no

duty to take illegal action, he is not engaged in his ‘duties,’

for purposes of an offense defined in such terms, if his conduct

is unlawful.”       (People v. Gonzalez, supra, 51 Cal.3d at p. 1217,

superseded on other grounds in Satele v. Superior Court (2019) 7

Cal.5th     852.)        Moreover,    “it    is    no   crime    in   this   state    to
nonviolently resist the unlawful action of police officers.”                         (In

re Michael V. (1974) 10 Cal.3d 676, 681; see People v. White,

supra, 101 Cal.App.3d at pp. 164, 168 [any duty not to resist

arrest “does not apply to a single charge of resisting arrest”

under section 148]; People v. Moreno (1973) 32 Cal.App.3d Supp. 1,

10 [same].)

      Every     arrest     is   unreasonable        and    violates      the    Fourth

Amendment, unless supported by probable cause.                        (Dunaway v. New
York (1979) 442 U.S. 200, 208.)                   Probable cause is “defined in

terms of facts and circumstances ‘sufficient to warrant a prudent

man    in     believing    that      the    (suspect)     had    committed     or    was

committing an offense’”           (Gerstein v. Pugh (1975) 420 U.S. 103,

111, internal citation omitted.)                    “If an officer has probable

cause to believe that an individual has committed even a very

minor criminal offense in his presence, he may, without violating
the Fourth Amendment, arrest the offender.”                     (Atwater v. City of

Lago Vista (2001) 532 U.S. 318, 354.)
       FMC section 13-109 provides:

       No person shall stand or sit upon any street so as in
       any manner to hinder or obstruct the passage therein
       of person passing along the same, or so as in any

                                            -7-
       manner to annoy or molest persons passing along the
       same, or stand in or at the entrance of any church,
       hall, theatre, or place of public assemblage so as in
       any manner to obstruct such entrance. (Emphasis
       added.)5
       This is a case of first impression as to the interpretation

of     FMC   section    13-109     and     whether,    based    upon     that

interpretation, the arrest of appellant was lawful.            In reviewing

the interpretation of a statute, a legal question, we apply a de

novo review standard.       (People v. Gonzales (2018) 6 Cal.5th 44,

49.)    We are guided by the rules of statutory construction listed
in People v. Arias (2008) 45 Cal.4th 169, 177, to wit:

       (1) Courts look to the Legislature’s               intent    to
       effectuate a statute’s purpose.

       (2) Courts give the words of a statute their usual and
       ordinary meaning.

       (3) A statute’s plain meaning controls the court’s
       interpretation unless  the   statutory  words  are
       ambiguous.

       (4) If the words of a statute do not themselves
       indicate legislative intent, courts may resolve
       ambiguities by examining the context and adopting a
       construction that harmonizes the statute internally
       and with related statutes.

       (5) A literal construction does not prevail if it is
       contrary to the apparent legislative intent.

       (6) If a statute is amenable to two alternative
       interpretations, courts will follow the one that leads
       to the more reasonable result.

       (7) Courts may consider legislative history, statutory
       purpose, and public policy to construe an ambiguous
       statute.

       (8) If a statute defining a crime or punishment is
       susceptible of two reasonable interpretations, courts


5 A violation of FMC section 13-109 may be charged as a misdemeanor offense.
(FMC § 1-304, subd. (b).) In fact, appellant was separately charged by the
Fresno City Attorney with a misdemeanor violation of FMC section 13-109, in
Fresno County Superior Court case number M18929127.     That case trailed this
matter and was ultimately dismissed at appellant’s sentencing hearing.
                                     -8-
     will   ordinarily   adopt   the                interpretation           more
     favorable to the defendant.

     Applying      those     rules    of    statutory        construction,           it    is

abundantly clear that FMC section 13-109 would not support an

arrest of appellant in this case.                       The statute unambiguously

deals   with     persons     standing      or     sitting    on     a    street,      which

includes    a    sidewalk.         There    was    no    evidence        presented        that

appellant (his person) was standing or sitting on the sidewalk in

such a way as to obstruct the passage of anyone passing along it.
Instead,    it    was    appellant’s        cart    filled        with    his    personal

possessions that was blocking the sidewalk.                  The plain language of

FMC section 13-109 only prohibits blocking a street with one’s

body, not one’s property.           Thus, Officer Kahn was mistaken when he

concluded that appellant was violating FMC section 13-109.

     The focus of our inquiry turns to whether Officer Kahn’s

mistake of law was objectively reasonable under the facts of the

case to support the probable cause to arrest appellant.                          (Heien,

supra.)     In Heien, the United States Supreme Court considered an
officer’s    reasonable      but     erroneous      interpretation          of   a    motor

vehicle statute.        In that case, a North Carolina Sheriff’s Deputy

observed     a    vehicle     traveling          along      the    highway       with       a

malfunctioning brake light.            Believing the faulty brake light to

be a violation of the state’s motor vehicle code, the officer

executed a traffic stop.             During the stop, the officer located

controlled substances in a duffel bag.                  (Heien, supra, 574 U.S. at
pp. 57-58.)

     Heien sought to suppress the evidence uncovered during the

search, contending that the stop had violated his rights under the


                                           -9-
Fourth Amendment.     The trial court denied the suppression motion,

but the North Carolina Court of Appeals reversed, holding that the

initial stop was invalid because driving with only one working

brake light was not actually a violation of North Carolina law.

The State appealed, and the North Carolina Supreme Court reversed,

holding that the officer's interpretation of the motor vehicle code

— even if incorrect — was not unreasonable and thus not a violation

of the Fourth Amendment.       (Heien, supra, 574 U.S. at pp. 58-60.)
     The   United   States     Supreme    Court    granted    certiorari.      The

court’s majority opinion noted that “the ultimate touchstone of the

Fourth Amendment is ‘reasonableness.’”             (Heien, supra, 574 U.S. at

p. 60, internal citation omitted.)          After explaining that “[t]o be

reasonable is not to be perfect,” and that the Fourth Amendment

allows for reasonable mistakes of fact, the Chief Justice went on

to explain that the Fourth Amendment reasonableness inquiry applies

to mistakes of law just as it applies to mistakes of fact:

    [R]easonable men make mistakes of law, too, and such
    mistakes are no less compatible with the concept of
    reasonable suspicion [than mistakes of fact]. Reasonable
    suspicion arises from the combination of an officer's
    understanding of the facts and his understanding of the
    relevant law.   The officer may be reasonably mistaken on
    either ground. Whether the facts turn out to be not what
    was thought, or the law turns out to be not what was
    thought, the result is the same: The facts are outside the
    scope of the law. There is no reason, under the text of
    the Fourth Amendment or our precedents, why this same
    result should be acceptable when reached by way of a
    reasonable mistake of fact, but not when reached by way of
    a similarly reasonable mistake of law. (Id. at p. 62)
    In so holding, the majority added, this “inquiry is not as
forgiving as the one employed in the distinct context of deciding

whether    an   officer   is   entitled    to     qualified   immunity   for   a

constitutional or statutory violation.”             (Heien, supra, 574 U.S.


                                    -10-
at p. 67.)        Based on the language of the North Carolina statute,

the    Court     concluded     that   the      officer's     error         of   law    was

objectively       reasonable    and     thus     provided       the     officer       with

reasonable suspicion to justify the traffic stop.                     (Id. at p. 68.)

      Justice Kagan, joined by Justice Ginsburg, wrote a concurrence

that contained several important points, giving context to the

majority’s observation that the “inquiry is not as forgiving[.]”

Critical    to     her    concurrence    was     her     belief       that      erroneous
interpretations of the law will be reasonable only when the law at

issue is “‘so doubtful in construction’ that a reasonable judge

could agree with the officer's view.”                 (Heien, supra, 574 U.S. at

p. 70, internal citation omitted.)                Thus, “[i]f the statute is

genuinely ambiguous, such that overturning the officer's judgment

requires    hard    interpretive      work,    then    the   officer has          made   a

reasonable mistake.          But if not, not.”         (Ibid.)        Such cases must

necessarily involve a “really difficult” or “very hard question of
statutory interpretation” and will thus be “exceedingly rare.”

(Ibid.)

      Justice      Kagan’s    concurring      observation       of    an     objectively

reasonable mistake of law is instructive in deciding the issue in

this case.       A number of state and federal courts have adopted or

acknowledged this view.         (See Jones v. Commonwealth (Va. 2019) 836

S.E.2d     710,     713    (citing     Justice        Kagan’s        concurrence       for
proposition that the statute must be “genuinely ambiguous” and

require “hard interpretative work” to find a reasonable mistake of
law); Harris v. State (Ga. 2019) 810 S.E.2d 660, 663 (same); State

v. Stoll (Ariz. 2016) 370 P.3d 1130, 1134 (same); United States v.

Stanbridge (7th Cir. 2016) 813 F.3d 1032, 1037 (same); State v.

                                        -11-
Eldridge (N.C. 2016) 790 S.E.2d 740, 743-744 (same); People v.

Gaytan (Ill. 2015) 32 N.E.3d 641, 652 (same); State v. Hurley (Vt.

2015) 117 A.3d 433, 441 (noting Justice Kagan’s view that “the bar

is high in cases in which a stop is predicated on a mistake of

law”);      State v. Houghton (Wis. 2015) 868 N.W.2d 143, 158-160

(noting Justice Kagan’s view that objectively reasonable mistakes

of law will be “exceedingly rare”).)

     Here, while there is no published case law addressing or
interpreting FMC section 13-109, its language is straightforward.

It requires no “hard interpretative work,” nor is it “genuinely

ambiguous.”       Instead, the code says what it means – that a person

shall not sit or stand upon the street so as to block passage.

Simply put, where the statute is not ambiguous, “`Heien does not

support     the    proposition   that    a     police   officer     acts   in   an

objectively reasonable manner by misinterpreting an unambiguous

statute.” (United States v. Stanbridge, supra, 813 F.3d at p.
1037.)       It    was   unreasonable    for     Officer    Khan     to    suspect

appellant’s conduct was illegal under FMC section 13-109.                    Thus,

appellant’s arrest for violating that provision of                   the Fresno

Municipal    Code    lacked   probable       cause.     Likewise,    appellant’s

failure to heed the officer’s commands cannot support a violation

of section 148 for delaying or obstructing the officer in his

duty, because the officer was acting unlawfully.
     We emphasize the prosecution’s choice to proceed solely on a

theory of violating FMC section 13-109, constrains our review
under the sufficiency-of-the-evidence test.6               On request of the

6 The concept that probable cause for an arrest exists so long as the evidence
may arguably give rise to probable cause to arrest on any criminal statute (see
Davenpeck v. Alford (2004) 543 U.S. 146, 153), is contrary to the sufficiency-
                                     -12-
parties, the trial court took judicial notice of FMC section 13-

109.    There was no other evidence elicited in the trial record to

support   Officer     Khan’s    arrest   of   appellant.     The   prosecutor

argued to the jury that the officer saw a “clear” violation of

FMC section 13-109, while appellant countered he was unlawfully

arrested because he did not violate FMC section 13-109.                  Under

the narrow circumstances of this case, we find that it was not

objectively reasonable for Officer Kahn to read FMC section 13-
109    expansively,    giving     rise   to    probable    cause   to   arrest

appellant for a violation of it.              (See Atwater v. Lago Vista,

supra, 532 U.S. at p. 354; People v. McKay (2002) 27 Cal.4th 601

607; People v. Gomez (2004) 117 Cal.App.4th 531, 538-539.)

                                         IV

                                   DISPOSITION

       The judgment is reversed.

       Dated this _____ day of May, 2020.



                                    ________________________________
                                    Hon. D. Tyler Tharpe
                                    Judge of the Appellate Division of
                                    the Fresno County Superior Court

       WE CONCUR,

                                    __________________________________
                                    Hon. F. Brian Alvarez
                                    Acting Presiding Judge of the
                                    Appellate Division of the Fresno
                                    County Superior Court




of-the-evidence test applicable in this case, where we review “record evidence”
put before the jury. (Jackson v. Virginia (1979) 443 U.S. 301, 318; see People
v. Johnson, supra, 26 Cal.3d at p. 562 [we review “the whole record” in the
light most favorable to the judgment].)
                                     -13-
___________________________________
Hon. Kristi Culver Kapetan
Judge of the Appellate Division of
the Fresno County Superior Court




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