Filed 2/18/14 P. v. Melendez CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B245190

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA387517)
         v.

LUIS MIGUEL MELENDEZ,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Drew E.
Edwards, Judge. Affirmed.


         Debra Fischl, under appointment by the Court of Appeal, for Defendant and
Appellant.


         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Blythe J. Leszkay and Ryan M.
Smith, Deputy Attorneys General, for Plaintiff and Respondent.




                                                           ******
       Appellant Luis Miguel Melendez appeals from the judgment entered upon his
conviction by jury of assault by means likely to produce great bodily injury (Pen. Code,
§ 245, subd. (a)(1),1 count 1), making criminal threats (§ 422, count 14), and resisting an
executive officer (§ 69, count 17).2 In a bifurcated proceeding, the trial court found true
that appellant suffered a prior serious felony conviction (§ 667, subd. (a)(1)), which
qualified as a strike under the “Three Strikes” law (§§ 667, subds. (b)-(i), 1170.12,
subds. (a)-(d)). The trial court sentenced appellant to state prison for a total term of
14 years and four months, calculated as follows: on count 14, 11 years (upper term of
three years, doubled pursuant to the Three Strikes law, plus five years for the prior
serious felony conviction); on count 1, a consecutive term of two years; and, on count 17,
a consecutive term of one year and four months. The trial court awarded appellant
880 days of custody credit.
       Appellant contends that the trial court violated its sua sponte duty to instruct on
misdemeanor resisting a peace officer (§ 148) as a lesser included offense of resisting an
executive officer. We find no error and affirm the judgment.
                                 FACTUAL SUMMARY
       Appellant does not challenge the sufficiency of the evidence supporting his
convictions. Accordingly, viewing the record in the light most favorable to the judgment
(People v. Bolin (1998) 18 Cal.4th 297, 331), we briefly summarize the facts while
focusing on the circumstances of his arrest which are relevant to the issue on appeal.


1      All further statutory references are to the Penal Code unless otherwise indicated.

2      Appellant was acquitted of corporal injury to a spouse (§ 273.5, subd (a), count 9),
making criminal threats (§ 422, count 10), forcible oral copulation (§ 288a,
subd. (c)(2)(A), count 15), and forcible rape (§ 261, subd. (a)(2), count 16). The jury was
unable to reach verdicts and the trial court declared a mistrial on the following 11 counts:
three counts of forcible oral copulation (§ 288a, subd. (c)(2)(A), counts 2, 7, and 11),
three counts of forcible rape (§ 261, subd. (a)(2), counts 3, 8, and 12), two counts of
corporal injury to a spouse (§ 273.5, subd (a), counts 5 and 13), sodomy by threat (§ 286,
subd. (c)(3), count 4), making criminal threats (§ 422, count 6), and possession of a
firearm by a felon (§ 12021, subd. (a)(1), count 18).

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       Appellant and Jazmin C. were involved in a tumultuous dating relationship
beginning in August 2010. In January 2011, appellant accused Jazmin C. of cheating on
him and punched her with his fists several times in both eyes. Appellant broke up with
Jazmin C. following this incident. In late March 2011, Jazmin C. resumed dating
appellant and they lived together at appellant’s mother’s house beginning in April 2011.
On August 4, 2011, appellant and Jazmin C. argued about money. Appellant was ironing
his pants for work and burned Jazmin C.’s back with a flat iron. He told her he wanted to
put the iron against her face.
       On August 5, 2011, appellant called Jazmin C. at her workplace and accused her
of using his cell phone to talk to another man. He told her: “You better quick [sic] your
job right now and come home. I am going to kick your ass worse than [the] last time.
You should have learned from your first lesson. If you come home, I am going to fuck
you up.” Jazmin C. told her coworker she was afraid to go home. Jazmin C.’s boss
called the police. Los Angeles Police Department (LAPD) Officer Jordan Patton and his
partner Officer Greg Hall took a statement from Jazmin C., which included a description
of the car appellant was driving.
       Later that night appellant’s car was found in the parking lot of Jazmin C.’s
workplace. Appellant was sitting in the driver’s seat of the car and the driver’s side
window was down. Several LAPD officers ordered appellant to get out of the car. They
called to him by name in a loud tone of voice and they attempted to speak to him in
Spanish. They used their PA system and “chirped” their sirens. Appellant did not
respond to the police requests. An arrest team of five officers approached appellant’s
vehicle. LAPD Officer Ryan Peake opened the car door and grabbed appellant’s left arm.
Appellant “squared” his shoulders so that he was face-to-face with Officer Peake and
started “swinging his hands in an upward punching motion.” LAPD Officer Jonathan
Rocha attempted to grab appellant’s right hand. Appellant kicked his feet out of the
driver’s side door and swung at Officer Rocha two or three times before he made contact
with a punch to Officer Rocha’s right eye. Officer Rocha was “bleeding all over the
place” and suffered a laceration to his right eyebrow that required four stitches.

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Officer Peake dragged appellant out of the car and yelled at him to “Stop resisting.”
Several officers grabbed appellant’s arms and legs but he kept fighting and wrestling with
the police officers. Officer Patton struck appellant approximately three times in the head
and the other officers were able to roll appellant over and handcuff him. It took
approximately five minutes from the time Officer Peake opened appellant’s car door until
Officer Patton struck appellant and the police officers were able to subdue appellant.
       Appellant testified on his own behalf. On August 5, 2011, he called Jazmin C. and
talked to her about his cell phone bill but denied threatening her. Later that day appellant
learned that “there was police all over [his] house.” He wanted to “get a hold of Jazz” so
he drove to her workplace. Appellant sat in the car drinking alcohol and then passed out.
Appellant woke up in the hospital and had no memory of what happened after he passed
out in the car.
                                       DISCUSSION
Duty to Instruct on Lesser Included Offense
       Appellant contends that section 148 is a lesser included offense of section 69 and
therefore the trial court should have instructed on the lesser offense of willfully resisting
a peace officer in the performance of official duties (§ 148, subd. (a)(1)) as to count 17.
       “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. [Citations.]” (People v. St. Martin
(1970) 1 Cal.3d 524, 531.) “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 (Breverman).)




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       During the pendency of this case, our Supreme Court decided People v. Smith
(2013) 57 Cal.4th 232 (Smith), which addressed the interplay of sections 69 and 148 as
follows:
       “Section 148(a)(1) is not a lesser included offense of section 69 based on the
statutory elements of each crime. Section 69 states: ‘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 a fine not
exceeding ten thousand dollars ($10,000), or by imprisonment [in the state prison], or in a
county jail not exceeding one year, or by both such fine and imprisonment.’ We have
explained that section 69 ‘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 of his or her duty.’ [Citation.]
       “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 some time in the future.’ [Citation.] The actual use of force or violence
is not required. [Citation.] Further, ‘the statutory language [of the first clause of
section 69] does not require that the officer be engaged in the performance of his or her
duties at the time the threat is made. . . . Thus, for example, a person who telephones an
off-duty officer at his or her home and threatens to kill the officer if he or she continues
to pursue a lawful investigation the following day or week may be convicted of the first
type of offense under section 69, even though the officer was not engaged in the
performance of his or her duties at the time the threat was made.’ [Citation.]
       “The second way of violating section 69 expressly requires that the defendant
resist the officer ‘by the use of force or violence,’ and it further requires that the officer
was acting lawfully at the time of the offense. [Citation.]
       “Section 148(a)(1) is similar to the second way of violating section 69 but is
clearly different from the first way of violating section 69. Section 148(a)(1) says:

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‘Every person who willfully resists, delays, or obstructs any public officer . . . in the
discharge or attempt to discharge any duty of his or her office or employment, when no
other punishment is prescribed, shall be punished by a fine not exceeding one thousand
dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both
that fine and imprisonment.’
        “A person who violates section 69 in the second way—by ‘knowingly resist[ing],
by the use of force or violence, such officer, in the performance of his duty’—also
necessarily violates section 148(a)(1) by ‘willfully resist[ing] . . . any public officer . . . in
the discharge or attempt to discharge any duty of his or her office or employment.’
(People v. Lacefield (2007) 157 Cal.App.4th 249, 257 (Lacefield) [‘it appears to be
impossible to violate the second type of offense in section 69 without also violating
section 148(a)(1) . . . .’].) But it is possible to violate section 69 in the first way—by
attempting, through threat or violence, to deter or prevent an executive officer from
performing a duty—without also violating section 148(a)(1). A person who threatens an
executive officer in an attempt to deter the officer from performing a duty ‘at some time
in the future’ [citation] does not necessarily willfully resist that officer in the discharge or
attempt to discharge his or her duty under section 148(a)(1). Accordingly,
section 148(a)(1) is not a lesser included offense of section 69 based on the statutory
elements of each offense. [Citations.] We disapprove Lacefield to the extent it held that
section 148(a)(1) is a necessarily lesser included offense of section 69 based upon the
statutory elements of those offenses. [Citation.]” (Smith, supra, 57 Cal.4th at pp. 240–
242.)
        Smith also states that the language of the accusatory pleading must be considered
in determining whether a trial court has a duty to instruct on section 148(a)(1). (Smith,
supra, 57 Cal.4th at p. 242.) Section 148(a)(1) is a necessarily included offense if the
accusatory pleading charged appellant with both ways of violating section 69. (Smith,
supra, at p. 242.) In this case, the amended information charged appellant with both
ways of violating section 69. In addition to the first way of violating the statute, the
amended information alleged that appellant violated the statute in the second way by

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“knowingly resist[ing], by the use of force and violence [upon Officer Jonathan Rocha] in
the performance of his[] duty.” The People argued in closing that appellant “used force
or violence to resist . . . he was swinging at Officer Rocha and made immediate contact.”
The trial court instructed the jury only on the second way of violating section 69.
       But Smith reiterated the traditional rule that a “trial court is not required to instruct
the jury on a necessarily included lesser offense ‘“when there is no evidence that the
offense was less than that charged.”’” (Smith, supra, 57 Cal.4th at p. 245; see
Breverman, supra, 19 Cal.4th at p. 154.) The trial court’s duty to instruct on the lesser
offense only arises “so long as there is substantial evidence that the defendant committed
the lesser offense without also committing the greater.” (Smith, supra, at p. 244.)
       The record reflects that “if 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.” (People v. Carrasco (2008) 163
Cal.App.4th 978, 985 (Carrasco).) Officer Peake testified that appellant “squared” his
shoulders and started “swinging his hands in an upward punching motion” when Officer
Peake attempted to remove appellant from the car. Officer Rocha testified that appellant
swung and missed two or three times before eventually connecting with a punch to
Officer Rocha’s right eye. Appellant refused all commands to “stop resisting” and
continued to kick and wrestle with several police officers after being removed from his
vehicle. The police officers attempted to gain control over appellant for approximately
five minutes but were unable to handcuff him even though his arms and legs were being
held by several officers. It took blows to the head by Officer Patton to finally subdue
appellant and take him into custody.
       Appellant argues that testimony by Officer Rocha that appellant was finally
restrained and arrested “probably within a minute,” conflicts with the testimony of other
police officers and does not support the conclusion that his actions amounted to the use of
force or violence. He disputes Officer Peake’s account of how many minutes transpired
from the time appellant was removed from his vehicle to the time he was eventually
subdued and contends that he did not use force or violence in resisting arrest. But,

                                               7
Officer Rocha’s first response when asked about the timeframe involved was “I am not
sure only because I was bleeding all over the place.” Appellant did not offer any contrary
evidence at trial disputing the account offered by Officers Peake, Patton, and Rocha.
“Hence, the jury would have had no rational basis to conclude appellant wrestled with the
officers, for which they convicted him of resisting or delaying an officer, 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.”
(Carrasco, supra, 163 Cal.App.4th at p. 986.)
                                      DISPOSITION
       The judgment is affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                             _____________________, J. *
                                                     FERNS
We concur:




____________________________, P. J.
       BOREN


____________________________, J.
       CHAVEZ




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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