Filed 8/5/14 P. v. Campbell CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D063806

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCN313019)

ERIC GREGORY CAMPBELL,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Diego County,

Kimberlee A. Lagotta, Judge. Affirmed.

         Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Michael T. Murphy and Lise S.

Jacobson, Deputy Attorneys General for Plaintiff and Respondent.
                                     INTRODUCTION

       A jury found Eric Gregory Campbell guilty of one count of felony resisting an

executive officer (Pen. Code, § 69)1 and one count of misdemeanor resisting an officer

(§ 148, subd. (a)(1)). At the sentencing hearing, the trial court denied Campbell's oral

motion under section 17, subdivision (b) (17(b) motion) to reduce the felony conviction

to a misdemeanor. The court then suspended imposition of sentence and placed

Campbell on three years of formal probation for the felony conviction and three years of

summary probation for the misdemeanor conviction.

       Campbell appeals, contending: (1) there was insufficient evidence to convict him

of the felony charge; (2) the court prejudicially erred by failing to sua sponte instruct the

jury on what constitutes a lawful detention and arrest; and (3) the court abused its

discretion by denying his 17(b) motion. We conclude there was sufficient evidence to

support the jury's verdict, any instructional error was harmless, and the court acted within

its broad discretion to deny the 17(b) motion. We, therefore, affirm the judgment.

                                     BACKGROUND

Prosecution Evidence

       San Diego County Sheriff's Deputy Frank Leyva responded to a call about a house

party with more than 200 teenagers and underage adults drinking and smoking. Deputy

Leyva and other deputies briefly staged nearby and then drove to the house. Parked cars

lined the entire street. Deputy Leyva stopped in front of the house, got out of his patrol



1      Further statutory references are also to the Penal Code unless otherwise stated.
                                              2
car, and approached the house. He heard kids yelling, screaming, and partying in the

backyard. He flashed his flashlight in the backyard and the partygoers scattered. As they

scattered, some of them remarked, "Fk you[]. Fk the cops."

       About 20 to 30 minutes later, the partygoers began leaving in mass while

continually calling out, "Fk you. Fk you pigs." Deputy Leyva started directing

traffic in front of the house. While he was doing so, a young man shouted from the

driveway, "Fk you, fk the cops." Leyva approached the young man, who ran into

the backyard. Deputies Leyva and Dylan Haddad followed him. There they saw

Campbell yelling at Deputy Jessica Charles. Charles asked Campbell if he was the

homeowner because he appeared to be the oldest person at the party. She also asked him

why he was the only adult at a high school party. Campbell responded, "You are a ct."

She told him he was "being worthless" and walked away with a man she had previously

detained for throwing a beer bottle at her feet and saying, "F you. Get away from me.

It's my f'in house."

       Deputy Haddad approached Campbell after hearing his remark to Deputy Charles.

Campbell said, "Fk you, pigs. Go get a donut." Campbell's eyes were bloodshot, his

speech was slurred, and Haddad could smell alcohol on him from five feet away.

Campbell turned and walked into his basement apartment, slamming the door shut behind

him. He yelled something like, "Fk you guys. Kick the door in. You already gave me

a $500 ticket."




                                            3
       Deputy Leyva resumed directing traffic in front of the house. A short while later,

a car drove up. Leyva stopped the car about 25 yards from the house. The driver said

she was Campbell's girlfriend and was going to Campbell's home. About then, Campbell,

who was six feet tall and weighed about 180 pounds, jogged toward Leyva, yelling and

screaming, "Fk you. That's my fking girlfriend. She will park wherever the fk

she wants." Leyva could smell alcohol on Campbell.

       Campbell pointed his right hand at Deputy Leyva who could see something white

in it, but did not know what the object was and did not know whether Campbell was

armed. Leyva commanded Campbell to stop three times. Campbell did not acknowledge

or comply with these commands. Instead, he continued to yell statements like, "[F]k

you, fk off, that's my fking girlfriend. She can park wherever the fk she wants.

Let her go. She hasn't done anything."

       Deputy Leyva thought he would have to move to avoid being trampled, but

Campbell slowed to a walk as he neared Leyva. Intending to detain Campbell for failing

to listen to him and to get him out of the street, Leyva reached for Campbell's raised hand

and told him to put his hands behind his back. However, before Leyva could get a solid

grip on Campbell's hand, Campbell pulled away. Leyva did not know whether Campbell

would try to strike, punch or tackle him. Leyva stepped aside, grabbed Campbell's shirt

or arm, and pushed Campbell forward. Campbell ended up on the hood of his girlfriend's

car. Leyva told Campbell to put his hands behind his back. When Campbell did not




                                             4
comply, Leyva reached for Campbell's right wrist. As Leyva did so, Campbell tucked his

arms underneath himself trapping Leyva's right hand in the process.

       Deputy Leyva felt vulnerable because he did not know Campbell or his girlfriend

and his girlfriend's car was running. Leyva grabbed Campbell with his left hand, pulled

Campbell off the hood, and tossed him into the street. Their feet became entangled and

Leyva, who was 5 feet 10 inches tall and weighed approximately 275 pounds with his

vest, belt, and other equipment on, fell on top of Campbell on the asphalt. Leyva's right

hand remained trapped underneath Campbell. Although Leyva was eventually able to

free his right hand, Campbell continued to ignore Leyva's verbal commands to stop

resisting and to put his arms behind his back.

       Deputy Haddad saw Deputy Leyva struggling with Campbell and ran to assist.

Campbell was lying face down with his hands under his body, swinging his arms in a

forceful manner and thrashing his body. Haddad, who was 5 feet 6 inches tall and

weighed about 160 pounds, kneeled on Campbell's left side and delivered two knee

strikes. Campbell continued moving his head from left to right and attempted to stand

up. Haddad pushed him back to the ground. Campbell ignored the deputies' commands

to stop resisting and show his hands, and they still did not know then whether he had any

weapons.

       At some point, Deputy Leyva punched Campbell in the shoulder and was able to

get Campbell's left hand behind his back. Leyva removed an object from Campbell's

hand and tossed it to the side. A third deputy struck Campbell's shoulder blade with a

flashlight to get Campbell to move his right hand from under his stomach to behind his

                                             5
back. When the flashlight strikes were unsuccessful, the deputy stunned Campbell with

an electroshock weapon.

       After the deputies handcuffed Campbell and rolled him over, Leyva noticed

Campbell's forehead was bleeding. Deputies Leyva and Haddad walked Campbell to the

patrol car and, when they reached it, Campbell tensed up, pushed off the back of the car,

and slammed his body into Haddad. Haddad gave Campbell's left thigh two knee strikes

and Campbell got into the car.

       Deputy Haddad drove Campbell to the hospital, where hospital staff used staples

to close an approximately one-inch laceration on Campbell's forehead. Leyva only

sustained a minor cut on one of his fingers. Leyva described Campbell's level of

resistance that night as an eight on a scale of one to ten, with ten being the highest.

       A neighbor saw Campbell handcuffed in the driveway, heard the deputies

repeatedly ask him to stay on the ground, and saw him repeatedly trying to get up. The

neighbor also heard Campbell yelling for his girlfriend to "videotape this." Nothing

about the deputies' behavior caused the neighbor to want to complain about them.

       The teenage party hostess saw Campbell running toward his girlfriend's car with a

red camcorder and throw it in the car. The hostess did not see overly forceful conduct by

the deputies toward the partygoers.

       When Campbell returned home the next day, he told the hostess he was going to

sue her and her parents and asked her to pay his bail. He also asked her to provide a

statement and to find three friends who would write statements indicating the deputies

attacked him and he did not assault a deputy. He told her it would be better if her friends

                                              6
did not know him, it did not matter whether they attended the party, and they would not

have to testify in court.

       A sheriff's lieutenant testified as an expert in the use of force. He explained what

the phrase "use of force" meant and some of the force options available to deputies,

depending on the circumstances. In response to hypothetical questions mirroring the

facts of this case, he opined the deputies' escalating use of force was reasonable.

Defense Evidence

       Campbell testified he spoke with two deputies at the party and told them he lived

at the home. When one of the deputies commented he looked too old for the party, he

responded he was not part of the party and went back to his apartment, which was on the

lower level in the rear of the house. As he was entering the apartment, he encountered

Deputy Leyva, who asked him who he was and what he was doing. He ignored Leyva

because he had already spoken with another deputy and did not feel he could be of further

assistance. After entering his apartment, he shut, not slammed, the door behind him. He

then talked on the phone with his girlfriend.

       When his girlfriend told him she was coming up the street, he told her he would

meet her. He walked to a neighbor's driveway and saw her in her car answering Deputy

Leyva's questions. Because her English was not "real good," he put his hand up, pointed

to the car, and said, "Officer, that's my girlfriend." "Can I help her park her car?" Leyva

asked him, "Who are you?" Campbell replied, "I'm the guy who lives down in the back

of the house." Leyva responded, "Oh. Come out here. I can't see you."



                                                7
       Campbell walked toward his girlfriend's car. Campbell did not have anything in

his hands. He met Deputy Leyva in front of the car and Leyva grabbed his right wrist,

twisted him around, and pushed him onto the hood. He asked Leyva, "Why are you

doing this to me? I didn't do anything wrong?" As Leyva elbowed Campbell in the back

and started handcuffing Campbell, Leyva responded, "I'll teach you to slam the door in

my face." Campbell denied spitting, swearing or trying to kick Leyva, but acknowledged

he probably squirmed to readjust the handcuffs.

       Deputy Leyva moved Campbell from the hood of the car to the ground. Leyva

then sat on Campbell, and hit Campbell's back and shoulders with his fist. Leyva or a

second officer hit Campbell's head and shoulders with a flashlight. Then, Campbell

received 15 seconds of electric shock to his side. Campbell screamed, "I'm still," four

times before the deputies stopped. He felt like he had almost been killed.

       Two of the deputies picked him up and carried him to a patrol car because he

could not stand up. When they got to the car, they hit his knees a few times and then

threw him into the back of it.

       Campbell said he had had a couple of beers that evening, but he was not drunk.

He denied asking the teenage party hostess to find people to fabricate statements, but he

admitted asking her for bail money. He believed she was responsible for what had

happened to him because she hosted the party.

       Campbell's girlfriend also testified and essentially corroborated Campbell's

version of events. She estimated the deputies hit Campbell between 25 and 30 times.

She did not see Campbell spit at, punch, hit, or kick the deputies at any time.

                                             8
                                       DISCUSSION

                                              I

                               Sufficiency of Evidence Claim

       Campbell contends there is insufficient evidence to support his conviction for

violating section 69. In evaluating Campbell'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 jury's

verdict.' " (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

such officer by law, or who knowingly resists, by the use of force or violence, such

officer, in the performance of his duty, is punishable by [fine, imprisonment, or both]."

"The statute sets forth two separate ways in which an offense can be committed. 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

                                              9
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.) Both parties agree the jury convicted Campbell under

the second theory.

       A conviction under the second theory requires proof "the defendant resist[ed] the

officer 'by the use of force or violence' " and "that the officer was acting lawfully at the

time of the offense." (People v. Smith, supra, 57 Cal.4th at p. 241; see CALCRIM No.

2652.) Campbell contends there was insufficient evidence to establish either of these

elements. Rather, the evidence shows the deputies used excessive force against him.

       However, the evidence, viewed in the light most favorable to the judgment,

showed Deputy Leyva and the other deputies went to the home where Campbell was

living to break up an out-of-control party. While Leyva was attempting to direct traffic,

which Campbell does not dispute was a lawful duty, Campbell jogged toward him

shouting expletives. Campbell carried an unknown object in his right hand, which he had

pointed at Leyva, and he ignored Leyva's repeated commands to stop. When Campbell

neared Leyva, Leyva attempted to detain Campbell and commanded Campbell to put his

hands behind his back. Instead of complying with Leyva's command, Campbell put his

hands underneath his torso and trapped one of Deputy Leyva's hands on the hood of a

running vehicle. Campbell thrashed about and continued resisting Leyva's commands

despite receiving fist strikes, flashlight strikes, and knee strikes. He did not initially stop

resisting until a deputy administered electric shocks. He then resumed resisting when

deputies tried to place him in a patrol car until he received two knee strikes. Collectively,

this evidence supports his conviction for violating section 69. (See People v. Bernal

                                              10
(2013) 222 Cal.App.4th 512, 518-519; People v. Carrasco (2008) 163 Cal.App.4th 978,

985-986.)

       The existence of conflicting evidence favorable to Campbell does not alter our

conclusion. " ' "Conflicts and even testimony [that] is subject to justifiable suspicion do

not justify the reversal of a judgment, for it is the exclusive province of the trial judge or

jury to determine the credibility of a witness and the truth or falsity of the facts upon

which a determination depends. [Citation.] We resolve neither credibility issues nor

evidentiary conflicts; we look for substantial evidence." ' " (People v. Manibusan, supra,

58 Cal.4th at p. 87.) As there is substantial evidence to support Campbell's felony

conviction in the record before us, we conclude he has not established the conviction

should be reversed on this ground.

                                              II

                                  Instructional Error Claim

                                              A

       Using CALCRIM No. 2652, the court instructed the jury the felony crime of

resisting an executive officer required proof that "[w]hen the defendant acted, the officer

was performing his lawful duty." In addition, the court instructed the jury, "[t]he duties

of a peace officer include responding to dispatch calls regarding noise complaints, crowd

control, and keeping the peace." The court further instructed the jury, "A peace officer is

not lawfully performing his or her duties if he or she is unlawfully arresting or detaining

someone or using unreasonable or excessive force in his or her duties. [CALCRIM No.]

2670 explains when an arrest or detention is unlawful and when force is unreasonable or

                                              11
excessive." The court provided substantially similar instructions on the misdemeanor

crime of resisting an officer using CALCRIM No. 2656.

       Using an adapted version of CALCRIM No. 2670, the court instructed the jury,

"The People have the burden of proving beyond a reasonable doubt that Leyva [and the

other deputies] were lawfully performing their duties as peace officers. If the People

have not met this burden, you must find the defendant not guilty of Resisting an

Executive Officer or Resisting a Peace Officer.

       "A peace officer is not lawfully performing his or her duties if he or she is

unlawfully arresting or detaining someone or using unreasonable or excessive force when

making or attempting to make an otherwise lawful arrest or detention.

       "Special rules control the use of force.

       "A peace officer may use reasonable force to arrest or detain someone, to prevent

escape, to overcome resistance, or in self defense.

       "If a person knows, or reasonably should know, that a peace officer is arresting or

detaining him or her, the person must not use force or any weapon to resist an officer's

use of reasonable force. However, you may not find the defendant guilty of resisting

arrest if the arrest was unlawful, even if the defendant knew or reasonably should have

known that the officer was arresting him.

       "If a peace officer uses unreasonable or excessive force while arresting or

attempting to arrest or detaining or attempting to detain a person, that person may

lawfully use reasonable force to defend himself or herself.



                                             12
       "A person being arrested uses reasonable force when he or she: (1) uses that

degree of force that he or she actually believes is reasonably necessary to protect himself

or herself from the officer's use of unreasonable or excessive force; and (2) uses no more

force than a reasonable person in the same situation would believe is necessary for his or

her protection."

       The court's adaptation of CALCRIM No. 2670 omitted two sections. The first

section, section A, states: "A peace officer may legally detain someone if [the person

consents to the detention or if]: [¶] 1. Specific facts known or apparent to the officer

lead him or her to suspect that the person to be detained has been, is, or is about to be

involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the

same facts would have the same suspicion. [¶] Any other detention is unlawful. [¶] In

deciding whether the detention was lawful, consider evidence of the officer's training and

experience and all the circumstances known by the officer when he or she detained the

person." (CALCRIM No. 2670.)

       The second section, section B, states in part: "A peace officer may legally arrest

someone [either] (on the basis of an arrest warrant/ [or] if he or she has probable cause to

make the arrest). [¶] Any other arrest is unlawful. [¶] Probable cause exists when the

facts known to the arresting officer at the time of the arrest would persuade someone of

reasonable caution that the person to be arrested has committed a crime. [¶] In deciding

whether the arrest was lawful, consider evidence of the officer's training and experience

and all the circumstances known by the officer when he or she arrested the person."

(CALCRIM No. 2670.)

                                             13
       The bench notes for CALCRIM No. 2670 state a court should include section A in

its jury instructions "if there is an issue as to whether the officer had a legal basis to

detain someone." The bench notes state a court should give section B "if there is an issue

as to whether the officer had a legal basis to arrest someone." (Bench Notes to

CALCRIM No. 2670.)

                                               B

       Although neither party specifically requested the court to instruct the jury with

sections A and B of CALCRIM No. 2670, Campbell contends on appeal the court

prejudicially erred by failing to do so sua sponte.

       " '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. [Citations.] The general principles of law governing the case are those

principles closely and openly connected with the facts before the court, and which are

necessary for the jury's understanding of the case.' " (People v. Smith, supra, 57 Cal.4th

at p. 239.)

       While there were allusions during the trial to Deputy Leyva's actions possibly

amounting to an unlawful detention and/or arrest, the indisputable focus of the trial was

on whether Deputy Leyva and the other deputies used excessive force against Campbell.

Assuming, without deciding, the court should have nonetheless instructed the jury with

the sections of CALCRIM No. 2670 addressing unlawful detention and arrest, we

conclude any error was harmless under both the state miscarriage of justice standard



                                               14
(People v. Watson (1956) 46 Cal.2d 818, 836-837) and the federal harmless beyond a

reasonable doubt standard (Chapman v. California (1967) 386 U.S. 18, 24).

        The jury knew from the instructions given it had to find Campbell not guilty if

Deputy Leyva had unlawfully detained or arrested Campbell. Although the court did not

elaborate on what constituted an unlawful detention or arrest, the parties' presentation of

diametrically opposing versions of events precluded the jury from finding for Campbell

under either theory unless the jury credited Campbell's version of events. The jury

necessarily rejected Campbell's version of events when the jury rejected the theory the

deputies acted with excessive force. Accordingly, we conclude both that it is not

reasonably probable Campbell would have obtained a more favorable result absent the

claimed error and that the record establishes beyond a reasonable doubt the claimed error

did not contribute to the guilty verdict. (See People v. Flood (1998) 18 Cal.4th 470,

505.)

                                             III

                               Denial of 17(b) Motion Claim

                                             A

        At the sentencing hearing, Campbell orally brought a 17(b) motion to reduce his

felony conviction to a misdemeanor. He argued the nature and circumstances of the

offense, his age, his lack of a prior criminal record, his work history, and his remorse

justified the reduction.

        The court denied the 17 (b) motion, finding Campbell's conduct did not warrant

reducing the conviction to a misdemeanor. In reaching its decision, the court explained,

                                             15
"In this case, the defendant took the stand. The jury found he was lying not only to them

but to the court. [¶] He paraded his girlfriend up here to lie for him as well. [¶] The

court heard testimony from his 17-year old neighbor that indicated he attempted to elicit

false testimony through her and her friends as well. [¶] So whatever the conduct that

defendant did on that day, whether that was misdemeanor or felony, it needs to be viewed

in the prism of his conduct after that as well. His conduct after that as well tells this court

that he needs to be on felony probation. [¶] . . . [¶] . . . I do think that a message needs

to be sent to him that he does need to take actual responsibility and have some actual

remorse. [¶] What I have heard from him so far I don't characterize as actual

responsibility or remorse. [¶] His comments to the probation officer are not taking the

responsibility. His comments from the witness stand are not taking responsibility. His

comments from counsel table today are not taking [responsibility]. [¶] He apologizes for

wasting the court's time, never apologizes for putting Deputy Leyva in the situation

where he feared for [his] life and safety and, had the defendant merely listened to the

verbal commands, would not have needed to be done."

                                              B

       Campbell contends the court abused its discretion by denying his 17(b) motion.

We disagree.

       A violation of section 69 is a "wobbler" offense in that a court has the discretion to

sentence the crime as either a felony or a misdemeanor. (People v. Superior Court

(Alvarez) (1997) 14 Cal.4th 968, 974.) A court had broad discretion under section 17,

subdivision (b), in deciding whether to reduce a wobbler offense to a misdemeanor.

                                              16
(People v. Superior Court (Alvarez), supra, at p. 977.) We will not disturb the court's

decision on appeal unless the party challenging the decision clearly shows the decision

was irrational or arbitrary. (Ibid.) Absent such a showing, we presume the court acted to

achieve legitimate sentencing objectives. (Id. at pp. 977-978.)

       Here, the court considered Campbell's motion and determined it was not

appropriate to reduce Campbell's conviction at that time because his conduct was

dangerous and avoidable, he and his girlfriend lied about his conduct at trial, and he did

not accept responsibility or exhibit remorse for his conduct. Nothing about the court's

stated reasons for denying Campbell's motion indicates the court's decision was irrational

or arbitrary. Accordingly, we conclude Campbell has not established the court abused its

discretion in denying his motion.

                                      DISPOSITION

       The judgment is affirmed.



                                                                       MCCONNELL, P. J.

WE CONCUR:


NARES, J.


AARON, J.




                                            17
