Filed 4/26/16 P. v. Frerks 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Butte)
                                                            ----



THE PEOPLE,

                   Plaintiff and Respondent,                                                 C079114

         v.                                                                     (Super. Ct. No. CM041348)

ANDREW ALLEN FRERKS,

                   Defendant and Appellant.




         Defendant Andrew Allen Frerks pleaded no contest to possession of a firearm by
a felon and possession of ammunition by a felon, and admitted a prior felony conviction.
Then, after a court trial, the trial court convicted him of resisting an executive officer and
found true a prior strike allegation. The trial court sentenced defendant to five years four
months in prison.
         Defendant now contends there is insufficient evidence to support his conviction
for resisting an executive officer. (Pen. Code, § 69.) We will affirm the judgment.




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                                     BACKGROUND
       On July 8, 2014, about 7:30 a.m., the Butte County Sheriff’s Department SWAT
team executed a search and arrest warrant for defendant and his caretaker, Rodney Baker,
at defendant’s rural property. The warrant was high-risk because defendant and Baker
were allegedly armed and possibly violent toward law enforcement.
       While executing the warrant, deputies wore green protective vests with the word
“Sheriff” written in large yellow letters on the front, shoulders, and back, along with
helmets and camouflaged clothing. To drive onto the property, deputies used a BearCat,
which is a four-wheeled armored vehicle, and a marked patrol car. It was light outside
when they executed the warrant.
       Deputies found and detained Baker in a clearing, about 100 to 300 feet away from
defendant’s residence. They proceeded to defendant’s front door, where they knocked
and yelled, “Sheriff’s office, search warrant, demanding entry!” Deputies continued the
knock notice for 18 seconds, but there was no response. Deputies detonated two flash-
bang distraction devices outside the residence and then immediately entered through the
unlocked front door.
       Detective Paley, who was holding a ballistic shield marked with the word
“Sheriff,” was the first to enter the home, with Detective Calkins directly behind. As
both deputies entered the home, they saw defendant seated in a reclining chair about three
to five feet from the front door. Defendant was leaning over at the waist, reaching with
an empty hand to a cabinet on his right. The deputies had been told defendant kept a
nine-millimeter handgun next to his recliner chair.
       Paley yelled at defendant to show his hands, but defendant failed to comply. Paley
then noticed a handgun in defendant’s hands and yelled in warning to the other deputies.
Calkins also saw defendant fumbling with a handgun between his knees, and defendant’s
hands were shaking. Both deputies understood defendant’s conduct as threatening.



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          Calkins, with the help of another deputy, grabbed defendant and tackled him to the
floor. The nine-millimeter semiautomatic handgun defendant was holding also fell to the
floor, and a deputy retrieved it. The gun had the safety off and was fully loaded, with a
round in the chamber and 10 rounds in the magazine.
          Only five seconds had elapsed between the deputies entering the residence and
defendant being detained. After being detained, defendant was cooperative. He told
deputies, and testified at trial, that he was asleep and failed to hear or realize that law
enforcement officers were trying to enter his home. Although defendant claimed to have
a hearing problem, he had no difficulty speaking with deputies that day. He testified at
trial he could read lips. He also explained he was scared during the incident and thought
he was reaching for a BB gun, not his handgun.
          Defendant pleaded no contest to possession of a firearm by a felon (Pen. Code,
§ 29800, subd. (a)(1) -- count two)1 and possession of ammunition by a felon (§ 30305,
subd. (a)(1) -- count three). He also admitted a prior felony conviction. (§ 192,
subd. (a).) The factual basis for the plea was the probation report.
          After a court trial on the remaining charges and enhancement allegations, the trial
court found defendant guilty of resisting an executive officer (§ 69 -- count one) and
found true the prior strike allegation (§ 667, subd. (d), 1170.12, subd. (b)). The trial court
found not true a firearm use enhancement allegation. (§§ 12022.5, subds. (a), (d), 1192.7,
subd. (c)(8).) The trial court imposed an aggregate sentence of five years four months in
prison.
                                         DISCUSSION
          Defendant contends there is insufficient evidence he resisted an executive officer.
He argues his encounter with the police was brief and he made no verbal threats. He also




1 Undesignated statutory references are to the Penal Code.


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contends there was insufficient evidence to show he threatened deputies with the gun,
especially because the trial court failed to find true the gun use enhancement and
described defendant as merely fumbling with the gun and never aiming it at the officers.
       In evaluating defendant’s claim, “ ‘we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime . . .
beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to
support the verdict -- i.e., evidence that is reasonable, credible, and of solid value -- such
that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence. [Citation.] . . . A reversal for
insufficient evidence “is unwarranted unless it appears ‘that upon no hypothesis whatever
is there sufficient substantial evidence to support’ ” the [trier of fact’s] verdict.
[Citation.]’ ” (People v. Manibusan (2013) 58 Cal.4th 40, 87.)
       Section 69 provides: “Every person who attempts, by means of any threat or
violence, to deter or prevent an executive officer from performing any duty imposed upon
the officer by law, or who knowingly resists, by the use of force or violence, the officer,
in the performance of his or her duty, is punishable by [fine, imprisonment, or both].”
(§ 69, subd. (a).) This offense may be committed in two separate ways. “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.” (In re Manuel G. (1997) 16 Cal.4th 805, 814; accord, People v. Smith
(2013) 57 Cal.4th 232, 240.)
       Defendant was convicted of committing the first type of offense. “The first way
of violating section 69 ‘encompasses attempts to deter either an officer’s immediate
performance of a duty imposed by law or the officer’s performance of such a duty at



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some time in the future.’ [Citation.] The actual use of force or violence is not required.
[Citation.]” (People v. Smith, supra, 57 Cal.4th at pp. 240-241, italics omitted.)
       In this case, there was substantial evidence defendant attempted to prevent the
deputies from performing their law enforcement duties in violation of section 69. Even if
defendant did not point or fire his handgun at the deputies, as the trial court described, he
still obtained possession of his handgun during the encounter with the deputies.
Defendant’s handgun was fully loaded with the safety off and was ready to be fired. A
rational trier of fact could reasonably deduce this possession and his fumbling with it was
threatening and an attempt to deter the deputies, especially because defendant ignored the
deputies’ peaceful attempts to enter defendant’s residence and their instructions to show
his hands.
                                      DISPOSITION
       The judgment is affirmed.



                                                       /S/
                                                  Mauro, Acting P. J.



We concur:



     /S/
Murray, J.



     /S/
Hoch, J.




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