Filed 6/28/16 P. v. Gotfried CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C076867

         v.                                                                       (Super. Ct. No. 12F8602)

FREDRIC JACOB GOTFRIED,

                   Defendant and Appellant.


         A jury convicted defendant Frederic Jacob Gotfried of threatening a public officer
(Pen. Code, § 71)1 and obstructing or resisting an executive officer (§ 69). The jury
acquitted defendant on charges of possession of marijuana for sale, possession of more
than 28.5 grams of marijuana, and attempted sale or transportation of marijuana. (Health
& Saf. Code, §§ 11359, 11357c, 664/11360, subd. (a).) The trial court suspended




1        Undesignated statutory references are to the Penal Code.


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imposition of sentence and granted defendant probation for a period of three years with
various conditions imposed.
       On appeal, defendant contends (1) the trial court erred by refusing to instruct the
jury on trespass by the sheriff’s deputy who was threatened by defendant, (2) insufficient
evidence supports his convictions, and (3) we must review the sealed transcript of the
hearing conducted by the trial court pursuant to his Pitchess motion.2
       We conclude the trial court correctly refused to instruct on trespass because both
of defendant’s convictions were based on threats and trespass was not a valid defense to
charges involving threatening a peace officer carrying out his or her lawful duties. We
reject defendant’s substantial evidence claim based on the testimony that defendant
brandished a gun and threatened to shoot a deputy sheriff who was conducting a criminal
investigation. Having reviewed the sealed transcript of the Pitchess hearing, we conclude
the trial court did not abuse its discretion in finding there was no evidence that needed to
be disclosed. Accordingly, we affirm the judgment.
                      FACTUAL AND PROCEDURAL HISTORY
       Because defendant’s appeal challenges only his convictions of threatening a public
officer and obstructing or resisting an executive officer, we recount the facts germane to
these offenses.
                                   Prosecution Evidence
       On May 31, 2012, Shasta County Sheriff’s Department Deputy Thomas Barner
accompanied county code enforcement officers as they went onto defendant’s property to
investigate whether defendant was in compliance with county codes regarding the
cultivation of marijuana. Deputy Barner was dressed in his sheriff’s deputy uniform and



2      See Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).


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announced his presence as a sheriff’s deputy. Deputy Barner went through an open gate
in a large fence on the north side of defendant’s property. Deputy Barner testified he
“explained very clearly to [defendant] that he was in violation of [the county] code and
also criminal [statutes]” for his cultivation of marijuana. Deputy Barner also informed
defendant he “would be coming back.”
       Over the next few months, Deputy Barner made at least 10 over-flights in a
helicopter and observed the same amount of marijuana was growing on defendant’s
property.
       On December 3, 2012, Deputy Barner returned to defendant’s property to conduct
further investigation of defendant’s marijuana cultivation. As Deputy Barner arrived, he
saw defendant standing outside his gate and speaking with someone in a truck. Deputy
Barner called out to defendant, “Fred, I’m just here to take pictures for the District
Attorney’s Office. It will take only a few minutes and then I’ll be leaving.” Defendant
looked up, saw Deputy Barner, and “immediately, as fast as he could walk, walked to the
gate and slammed the gate.” From inside the property, defendant said: “I know who you
are. You’re trespassing. Get off my property.” Deputy Barner identified himself as a
sheriff’s deputy and explained he was there at the request of the district attorney’s office
to take photographs. Defendant was agitated and angry.
       Defendant turned off a generator inside his property. Deputy Barner repeated
himself, stating he “just wanted to take pictures and [he’d] be gone.” Defendant
responded, “You’re trespassing. If you come onto my property, I will shoot you.”
Deputy Barner walked along the fence, trying to keep track of defendant. Defendant
may have repeated his threat to shoot Deputy Barner if he came onto defendant’s
property.




                                              3
          Defendant went into a tent. Approximately 30 seconds later defendant emerged
with a “long gun” that was either a rifle or a shotgun. Deputy Barner again repeated
he was there at the request of the district attorney’s office to take photographs.
Defendant responded by reiterating his threat to shoot if the deputy came onto the
property.
          Deputy Barner became concerned for the safety of two unarmed civilians in the
area. He announced, “Fred, I’m leaving.” Defendant answered, “Leave and don’t come
back.” Deputy Barner left without having entered defendant’s property.
                                      Defense Evidence
          Defendant testified on his own behalf as follows: He had not expected Deputy
Barner to return to his property on December 3, 2012. When defendant heard the deputy
“say something about pictures for the DA,” defendant responded: “I really don’t care
who you are. You’re trespassing. You need to go away.” Defendant turned off his
generator, went into a tent on his property, and tried to contact his attorney. He heard a
loud sound that seemed like someone was jumping on a large piece of tin. Not being able
to see out of the tent, defendant called out: “I have a gun.” He did not see Deputy
Barner. After finishing an e-mail to his attorney, defendant left the tent while carrying
his gun.
          Defendant testified Deputy Barner did not request permission to come onto
the property. Defendant said he had a gun because he “was not sure who was back
there.”




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                                        DISCUSSION
                                                I
                  Trial Court’s Refusal to Instruct the Jury on Trespass
       Defendant contends the trial court committed reversible error by refusing his two
instructions concerning trespass. Proposed defense instruction number two stated:
“When an individual intentionally enters the property owned or occupied by another,
without the owner/occupier’s permission, he/she is trespassing.” Proposed defense
instruction number three stated: “The duties of a deputy sheriff do not include
trespassing.” Defendant asserts the jury should have been “told that if [his] actions were
only intended to deter Deputy Barner from trespassing on his property, that his actions
were legal or, at least, did not violate . . . sections 69 and 71.” We reject the argument
because there is no defense of trespass to charges involving threatening a peace officer
carrying out his or her lawful police duties.
                                                A.
                                       Duty to Instruct
       It is well settled a trial court has a sua sponte duty to instruct the jury on a
defense when supported by substantial evidence and not inconsistent with the defendant’s
theory of the case. (People v. Salas (2006) 37 Cal.4th 967, 982.) “In determining
whether the evidence is sufficient to warrant a jury instruction, the trial court does not
determine the credibility of the defense evidence, but only whether ‘there was evidence
which, if believed by the jury, was sufficient to raise a reasonable doubt.’ ” (Ibid.,
quoting People v. Jones (2003) 112 Cal.App.4th 341, 351.) However, a trial court has
no duty to instruct the jury on an inapplicable defense. (People v. Jennings (2010) 50
Cal.4th 616, 668.)




                                                5
                                              B.
                                    Defense of Property
       In essence, defendant contends he was deprived of a defense because the jury was
not informed about the implications of trespass by Deputy Barner. Defendant’s
contention rests on the mistaken assumption that defense of property constitutes a lawful
excuse to charges of threatening a peace officer.
       An owner or occupant of real property, after fair warning to a trespasser, may use
reasonable force to eject the trespasser when it appears there is imminent danger to
property or to persons on the property. (Civ. Code, § 50 [providing that “[a]ny necessary
force may be used to protect from wrongful injury the . . . property of oneself”]; People v.
Corlett (1944) 67 Cal.App.2d 33, 53, disapproved on other grounds in People v. Carmen
(1951) 36 Cal.2d 768, 775–776.) However, the limited right to defend one’s property
against resistant trespassers does not excuse threats against law enforcement officers in
the lawful discharge of their duties. (People v. Hupp (1943) 61 Cal.App.2d 447, 450
(Hupp).)
       In Hupp, the appellate court considered a challenge to a conviction for assault with
a deadly weapon against police officers who went to the defendant’s house to investigate
a reported disturbance. (61 Cal.App.2d at p. 449.) The police officers learned of the
reported disturbance from their supervisor who ordered them to investigate. (Id. at p.
450.) At that point, “[i]t became their duty to do so as it is the duty of peace officers not
only to make arrests for the commission of crime but to prevent the commission of
additional crimes and protect the lives of citizens. Under these instructions they
proceeded to defendant’s residence, not necessarily to arrest him, but to investigate and
act on the results of such investigation. One of the officers walked up the steps to the
porch where he was met by defendant, armed with a loaded shotgun, who threatened the




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officer’s life. One officer had seen defendant drunk, quarrelsome, and trying to engage in
a fight a short time earlier. They saw defendant’s wife crawling under the house with a
child in her arms. They had been told by responsible authority that defendant was armed
and had threatened his son–in–law. Under such circumstances the officers did nothing
but their duty and showed creditable restraint in performing it. The argument that they
were trespassers and that defendant could resist the trespass by any means short of
homicide is entirely without merit.” (Id. at p. 450.)
       In sum, trespass is not a defense against charges involving threatening to shoot law
enforcement officers engaged in the performance of their duties. (Hupp, supra, 61
Cal.App.2d at pp. 449-450.) Thus, defendant was not entitled to jury instructions that
would have excused his threats to shoot Deputy Barner on grounds he was defending his
real property against trespass.
                                              II
                                  Sufficiency of the Evidence
       Defendant contends insufficient evidence supports his convictions of threatening a
public officer and obstructing or resisting an executive officer. We reject the contention.
       In reviewing whether the evidence suffices to support a criminal conviction, we
assess “ ‘whether, on the entire record, a rational trier of fact could find the defendant
guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in
the light most favorable to the People and must presume in support of the judgment the
existence of every fact the trier could reasonably deduce from the evidence. [Citation.]’ ”
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) “The test on appeal is whether
substantial evidence supports the conclusion of the trier of fact, not whether the evidence
proves guilt beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 576,
quoting People v. Reilly (1970) 3 Cal.3d 421, 425.)




                                              7
       In arguing insufficiency of the evidence, defendant properly acknowledges the
jury was entitled to credit Deputy Barner’s testimony. Our review of Deputy Barner’s
testimony reveals ample evidence to support defendant’s convictions. This testimony
established Deputy Barner was conducting an investigation of defendant’s marijuana
cultivation at the request of the district attorney’s office. Moreover, defendant’s
statements indicated he knew Deputy Barner was acting in his capacity as a sheriff’s
deputy. Two or three times, defendant threatened to shoot Deputy Barner and brandished
a firearm. Based on this testimony, we conclude there was sufficient evidence to support
defendant’s convictions of threatening a public officer and obstructing or resisting an
executive officer.
       Defendant argues that “the evidence clearly demonstrated that [defendant] sought
to deter Barner from performing a duty that was not, in fact, imposed upon him by law.”
He further argues that “[i]n order to convict [him], the district attorney had to prove,
beyond a reasonable doubt that [defendant] did not merely intend to deter the trespassing
itself but instead, intended to deter . . . Barner’s investigation in general including those
portions of the investigation which were legal.”
       Section 69 “prohibits the use of threats of violence to attempt to deter or prevent
an officer from performing any duty imposed by law.” (In re Manuel G. (1997) 16
Cal.4th 805, 816 (Manuel G.).) Section 69 is subject to “California’s longstanding rule
that a defendant cannot be convicted of an offense against a peace officer engaged in the
performance of his or her duties unless the officer was acting lawfully at the time of the
offense.” (Id. at p. 818.) Section 71 is intended “to prevent threatening communications
to public officers or employees designed to extort their action or inaction” and requires a
threat directly communicated to a public officer or employee to inflict unlawful injury
coupled with an apparent ability to carry out the threat. (In re Ernesto H. (2004) 125




                                               8
Cal.App.4th 298, 308.) Section 71 focuses on defendant’s “intent to influence the
performance of the officer or employee’s official duties.” (Ernesto H., supra, at p. 308,
italics added.)
          In resolving defendant’s argument about the lawfulness of Deputy Barner’s duties,
the decision in Hupp is instructive. There, the appellate court rejected an argument that
police officers were trespassers because they were acting unlawfully -- having no right
to arrest defendant in his house at night without a warrant. (Hupp, supra, 61 Cal.App.2d
at p. 449.) The Hupp court explained that the police officers were not trespassing
because it is the duty of peace officers not only to make arrests for the commission of
crime but to prevent the commission of additional crimes and protect the lives of
citizens.” (Id. at p. 450.) Having acted on reports the defendant threatened his family
while armed with a shotgun, the police officers in Hupp acted within their prerogative to
investigate the reported crimes without being trespassers on the defendant’s property.
(Ibid.)
          Criminal activity in California includes unlawful cultivation of marijuana (Health
& Saf. Code, § 11358) and possession of marijuana with intent to sell (id., § 11359).
Additional related crimes include those with which defendant was actually charged,
namely possession of more than 28.5 grams of marijuana, and attempted sale or
transportation of marijuana. (Health & Saf. Code, §§ 11359, 11357c, 664/11360, subd.
(a).) That defendant was acquitted of those offenses does not mean the charged conduct
was not criminal. More important for our purposes, police officers have the prerogative
to investigate such criminal activity. As the Supreme Court declared in Manuel G.,
“Executive officers, including peace officers investigating criminal activity, must feel
free to pursue their lawful duties without fear of violent retaliation.” (Manuel G., supra,
16 Cal.4th at p. 819, italics added.)




                                               9
          In this case, the sheriff’s deputy was investigating a crime upon instruction by the
district attorney’s office. With such instruction, Deputy Barner had a duty to investigate
possible crimes and code violations committed by defendant in his marijuana cultivation.
(Hupp, supra, 61 Cal.App.2d at pp. 449-450.) Notably, Deputy Barner had previously
observed defendant’s marijuana cultivation was unlawful. Defendant’s argument is
based on his assertion he was “a legitimate medical marijuana user who was also
legitimately growing medical marijuana for a relative.” Crediting defendant’s argument
would mean anyone could threaten to shoot a peace officer conducting an investigation
so long as the investigation does not yield a criminal conviction. We reject this untenable
result.
          We conclude the testimony that defendant brandished a gun and threatened to
shoot a deputy sheriff who was conducting a criminal investigation constitutes sufficient
evidence to support his convictions.
                                               III
                                        Pitchess Motion
          Before trial, defendant filed a Pitchess motion to seek discovery of the law
enforcement personnel file of Deputy Barner. The trial court conducted an in camera
examination of the law enforcement personnel records of Deputy Barner. After the in
camera examination, the trial court informed the parties the court “found nothing that the
law requires me to disclose.”
          Defendant asks that we review the sealed record of the trial court’s hearing on his
Pitchess motion. (See People v. Mooc (2001) 26 Cal.4th 1216, 1228-1229 [explaining
appellate review properly encompasses the transcript of the trial court’s in camera
hearing on a Pitchess motion].) The People do not oppose the request.




                                               10
       We review a trial court’s ruling on a Pitchess motion under the abuse of discretion
standard of review. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Thus, we
will not reverse unless the trial court’s decision was arbitrary, capricious, or patently
absurd. (People v. Rodriguez (1999) 20 Cal.4th 1, 9.) Having reviewed the sealed
record, we conclude there was no procedural or substantive error in the trial court’s
handling of the Pitchess motion or in its ruling. (See People v. Myles (2012) 53 Cal.4th
1181, 1208–1209.)
                                       DISPOSITION
       The judgment is affirmed.



                                                                /s/
                                                   HOCH, J.



We concur:



         /s/
ROBIE, Acting P. J.



         /s/
MAURO, J.




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