Filed 8/13/18
                             CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                SIXTH APPELLATE DISTRICT


THE PEOPLE,                                           H044771
                                                     (Santa Cruz County
        Plaintiff and Respondent,                     Super. Ct. Nos. 16CR00388,
                                                      16AP00012)
        v.

ANDREW KEVIN WILLIAMS,

        Defendant and Appellant.



        A defendant violates Penal Code section 148, subdivision (a)(1) 1 (hereafter
section 148(a)(1)) if he or she delays, obstructs, or resists a police officer who is engaged
in the lawful performance of his or her duties. But when an officer uses excessive force
in making an arrest or a detention, the officer is not engaged in the lawful performance
of his or her duties.
        The issue presented in this case is whether a defendant may be convicted of
violating section 148(a)(1) if the officer uses excessive force after the completed offense
of delaying, obstructing, or resisting an officer who is engaged in the lawful performance
of his or her duties. We hold that if a defendant delays, obstructs, or resists an officer
who is engaged in the lawful performance of his or her duties, the defendant may be
convicted of violating section 148(a)(1) even if the officer uses excessive force
subsequent to the completed violation.


        1
            All further statutory references are to the Penal Code unless otherwise indicated.
       In this case, defendant Andrew Kevin Williams was charged with delaying,
obstructing, or resisting a police officer engaged in the lawful performance of his duties
(§ 148(a)(1)). During deliberations, the jury asked the following question: “If a peace
officer is correctly conducting duties, [¶] If a 148(a)[(1)] violation occurs, [¶] If then,
subsequent to the violation, excessive force is used, does this invalidate the 148(a)[(1)]
violation?” The trial court responded “NO” and the jury later found defendant guilty.
       Defendant appealed to the appellate division of the Santa Cruz County Superior
Court, which reversed defendant’s conviction in a two-to-one decision. The appellate
division majority found that the trial court erred in responding “NO” when the jury asked
whether a violation of section 148(a)(1) is “invalidate[d]” if an officer uses excessive
force “subsequent to the violation.” The dissenting judge would have found no
instructional error. The appellate division then certified the case for transfer to this court,
and we ordered the case transferred to us for hearing and decision. (Cal. Rules of Court,
rules 8.1002, 8.1008.) 2
       In this court, defendant reiterates his claim that the trial court erred by responding
“NO” when the jury asked whether the use of excessive force “subsequent to” a violation
of section 148(a)(1) “invalidate[s]” the violation. We conclude that the trial court did not
err in responding to the jury question. If a defendant delays, obstructs, or resists a police
officer who is engaged in the lawful performance of his or her duties, the defendant may
be convicted of violating section 148(a)(1) even if the officer uses excessive force
subsequent to the completed violation.
       Defendant also contends the trial court erroneously instructed the jury that he
could be convicted of violating section 148(a)(1) if the jury found that he stepped in front
of an officer who was writing a citation, because there was no evidence that defendant




       2
           All further rule references are to the California Rules of Court.

                                                2
thereby delayed, obstructed, or resisted the officer. We conclude there was no
instructional error. We will therefore affirm the judgment.
                          I.     FACTUAL BACKGROUND
       On January 19, 2016, at about 9:40 p.m., Santa Cruz Police Officer Jeffrey
Brouillette was working with Field Training Officer Jeff Auldridge in downtown Santa
Cruz. They saw a group of people on Pacific Avenue. One person, William Sanders, had
a dog, which was a violation of the Municipal Code. A second person, Keenan Johnson,
was smoking and playing amplified music, both of which were violations of the
Municipal Code. Defendant, who was part of the group, was laying down on the
sidewalk.
       The officers intended to give a warning to Sanders, cite Johnson for the amplified
music, and tell the rest of the group to “clear out.” When the officers approached the
group, Johnson and defendant indicated they were upset about the fact that Johnson was
getting a ticket. Defendant called Officer Brouillette a “pig.”
       As Officer Brouillette began writing a citation to Johnson, a pedestrian tried to
walk by. Officer Auldridge instructed the pedestrian not to walk in between Officer
Brouillette and Johnson. The pedestrian complied but made a comment indicating he
“wasn’t happy about it.” At that point, Officer David Gunter had arrived.
       After the pedestrian passed by, defendant got up and stood in between Officer
Brouillette and Johnson. Defendant smiled and then stared at the officer while keeping
one hand in his coat pocket. Officer Brouillette became concerned for his safety. The
officers asked defendant to sit down, but defendant remained in the same stance. The
officers “directed” defendant to sit down, explaining that he was interfering with Officer
Brouillette’s ability to write the ticket. Defendant again ignored the officers. The
officers then told defendant “that he was being detained and that he was going to be
getting a ticket for lying on the sidewalk.” Defendant remained standing.



                                             3
       The officers instructed defendant to sit down and gave defendant two warnings
about being arrested for resisting, obstructing, or delaying an officer. Defendant ignored
the officers. Officer Audridge pushed defendant backwards, away from Officer
Brouillette. Officer Auldridge told Officer Brouillette to arrest defendant. Officer
Audridge took hold of defendant’s right arm while Officer Brouillette attempted to arrest
defendant, who kept his left hand in his pocket when Officer Brouillette tried to put him
into handcuffs.
       After about a minute of trying to get defendant’s left hand out of his pocket and
into handcuffs, the officers decided they needed to “take him on the ground.” The
officers tried to do an “armbar takedown,” but defendant “braced his stance.” Officer
Brouillette then grabbed the back of defendant’s coat and pulled him down to the ground.
       Although he was down on the ground, defendant still had his hand in his pocket,
so the officers held his arms and legs in place while they waited for backup. Defendant
rocked his body from side to side, “trying to break free.” Officer Brouillette used his
body weight to keep defendant on the ground, and Officer Auldridge used his thumb to
put “a pressure point” behind defendant’s jaw. When Officer Gunter saw defendant
kicking, he went over and restrained defendant’s legs. Meanwhile, other members of
defendant’s group were yelling at the officers.
       Officer Brouillette still could not get defendant’s hand out of the coat pocket, so
Officer Auldridge twisted defendant’s wrist. When that did not result in defendant’s
compliance, Officer Auldridge punched defendant in the face a few times as hard as he
could, but not “very hard.” The punching was not effective, however, so Officer
Auldridge put his knee on defendant’s face.
       After a few minutes, more officers arrived, including Officer Matthew Montes and
Sergeant William Clayton. The officers were able to pull defendant’s hand out from his
coat pocket and place defendant in handcuffs. The officers rolled defendant “up to a
seating position.” Officer Montes tried to pat search defendant and reach into

                                              4
defendant’s coat pocket, but defendant—who was now standing—moved his body so that
the officer could not do so.
       The officers put defendant into a patrol car, but he “lowered his center of gravity”
and leaned back. The officers made several attempts to put defendant into the patrol car,
but realized they could not do so “safely without hurting him or hurting [the officers].”
The officers were particularly concerned about defendant kicking them. They therefore
decided to restrain defendant with shackles.
       In order to place the shackles on defendant, the officers decided to “put him back
on the ground.” Defendant was “wiggling,” and Officer Brouillette placed his knee on
defendant’s back to keep defendant from getting up. Defendant continued to move and
kick, which made it difficult for the officers to put the shackles on.
       The officers finally managed to place shackles on defendant’s ankles but decided
to also place him in a wrap to further restrain him. Defendant was transported to the
hospital in order to “get him cleared” before taking him to jail. At the hospital, defendant
started “to make a loogie,” so the officers put a spit mask on him. Defendant was able to
get the spit mask off, so the officers put another one on him. The officers tried to take
defendant to jail, but the jail would not accept him in the wrap. The officers put shackles
on defendant’s feet and took defendant out of the wrap so the jail would accept him.
       Officer Brouillette identified the ways in which he believed defendant delayed and
obstructed the performance of his duties: (1) when defendant stood in between Officer
Brouillette and Johnson; (2) when defendant refused to sit down, causing Officer
Brouillette’s attention to remain on defendant instead of on writing Johnson’s citation;
(3) when defendant again refused to sit down; (4) when defendant refused to sit down for
a third time; (5) when defendant had to be arrested, further delaying the Johnson citation.
       Officer Brouillette identified the ways in which he believed defendant resisted
him: (1) the first three times defendant refused to pull his hand out of his coat pocket;
(2) the next two times defendant refused to pull his hand out of his coat pocket, when he

                                               5
was on the ground; (3) when defendant refused to get into the patrol car; (4) when
defendant resisted the shackles.
       According to Officer Auldridge, the obstructing and delaying began when
defendant got up and stood in front of Officer Brouillette, and “it never stopped.” Officer
Gunter likewise believed that defendant was resisting from the time of the initial verbal
commands until the time he was placed in the wrap device. According to Officer
Montes, defendant resisted, obstructed, and delayed him when he was attempting the pat
search and at the hospital.
                         II.   PROCEDURAL BACKGROUND
       A.     Charges
       A second amended complaint alleged that defendant resisted, delayed, and
obstructed “either” Officers Auldridge, Brouillett, Gunter, or Montes in violation of
section 148(a)(1). 3
       B.     Jury Instructions
              1.       Instruction on Section 148(a)
       Pursuant to CALCRIM No. 2656, the jury was instructed: “The Defendant is
charged with resisting, obstructing, or delaying a peace officer in the performance or
attempted performance of his duties, in violation of Penal Code [section ]148[(a)(1)].
       “To prove that the Defendant is guilty of this crime, the People must prove that,
one, Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace officers
lawfully performing or attempting to perform their duties as peace officers. [Two, t]he
Defendant willfully resisted, obstructed, or delayed Jeff Auldridge, or Matthew Montes,
or Jeffrey Brou[i]llette in the performance or attempted performance of those duties. And
three, when the Defendant acted, he knew or reasonably should have known, that Jeff

       3
        The second amended complaint referred to a violation of section 148(a), but the
offense of resisting, delaying, or obstructing an officer is a violation of section 148(a)(1).
(See Stats. 1997, ch. 464, § 1.)

                                              6
Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace officers performing or
attempting to perform their duties.
       “If someone commits an act willfully, when he or she does it willingly or on
purpose, it is not required that he or she intend to break the law, hurt someone else, or
gain any advantage.
       “A person who is employed as a police officer by the Santa Cruz Police
Department is 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 in his or her duties.
       “Jury Instruction [2670], which follows, explain[s] when an arrest or detention is
unlawful or when force is unreasonable or excessive. The People allege that the
Defendant resisted, obstructed, or delayed Jeff Auldridge, or Matthew Montes, or Jeffrey
Brou[i]llette by doing the following.
       “Jeffrey Brou[i]llette. Stepping in front of Brou[i]llette while he was writing a
citation. Stiffening his body while being placed under arrest. Not removing his hand
from his pocket while being placed under arrest. Stiffening his body while Brou[i]llette
attempted to place him on the ground. Not responding to commands to stop resisting.
Not responding to commands to give Brou[i]llette his hand. Stiffening and moving his
body on the ground while being placed under arrest. Kicking his legs while on the
ground while being placed under arrest. Making his body limp while attempting to be
placed in the back of the patrol vehicle. Making his body stiff while attempting to be
placed in the back of the patrol vehicle.
       “Jeff Auldridge. Not responding to commands to sit down. Not responding to
commands to move back. Stiffening his body while being placed under arrest. Stiffening
his body while Auldridge attempted to place him on the ground. Not responding to
commands to stop resisting. Stiffening and moving his body on the ground while being



                                              7
placed under arrest. Kicking his legs while on the ground, while being placed under
arrest.
          “Matthew Montes. Not responding to commands to spread his legs while
attempting to be searched. Jumping up while attempting to be searched. Making his
body limp while attempting to be placed in the back of the patrol vehicle. Making his
body stiff while attempting to be placed in the back of the patrol vehicle. Preventing the
spit mask from being placed on his head. Removing the spit mask from his head.
          “You may not find the Defendant guilty unless you all agree that the People have
proved that the Defendant committed at least one of the alleged acts of resisting,
obstructing, or delaying a peace officer who was lawfully performing his or her duties,
and you all agree on which act he committed. If a person intentionally goes limp,
requiring an officer to drag or carry the person in order to accomplish a lawful arrest, that
person may have willfully resisted, obstructed, or delayed the officer, if all the other
requirements are met.”
                 2.     Instruction on Lawful Performance
          Pursuant to CALCRIM No. 2670, the jury was instructed: “The People have the
burden of proving beyond a reasonable doubt that Jeff Auldridge, or Matthew Montes, or
Jeffrey Brou[i]llette were lawfully performing their duties as peace officers. If the People
have not met this burden, you must find the Defendant not guilty of his charged crime.
          “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. A peace officer may legally detain someone if, one, specific facts known
are apparent to the officer, leave him or her to suspect that the person could be detained,
has been or is about to be involved in activity relating to crime, and two, 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

                                                8
known by the officer when he or she detained the person. A peace officer may legally
arrest someone 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.
       “In order for an officer to lawfully arrest someone without a warrant for a
misdemeanor or infraction, the [officer] must have probable cause to believe that the
person to be arrested committed a misdemeanor [or] infraction in the officer’s presence.
Penal Code [section ]148(a)[(1)] is a misdemeanor.
       “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 peace officer uses unreasonable and excessive force while arresting or attempting to
arrest . . . or detain[ing] or attempting to detain a person, that person may lawfully use
reasonable force to defend himself or herself.
       “A person being arrested uses reasonable force when he or she, one, 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 two, uses no
more force than a reasonable person in the same situation would believe is necessary for
his or her protection.”
              3.     Instruction on Unanimity
       The jury was instructed on unanimity pursuant to CALCRIM No. 3500 as follows:
“The Defendant is charged with Penal Code [section ]148, resisting, obstructing, or
delaying a peace officer. The People have presented evidence of more than one act to
prove that the Defendant committed this offense. You must not find the Defendant guilty

                                              9
unless you all agree that the People have proved that the Defendant committed at least
one of these acts, and you all agree on which act he committed.”
       C.     Trial
       The defense did not put on any affirmative evidence.
       During argument to the jury, the prosecutor asserted that “the reason we’re here”
was defendant’s initial violation of section 148(a)(1), which occurred when he got in
between Officer Brouilette and Johnson and then refused to move after being threatened
with arrest. The prosecutor argued that defendant had been “delaying and obstructing”
the officer, who was “lawfully” writing a citation. The prosecutor argued, “Right there,
he’s guilty of 148. You don’t even have to go any further. He obstructed and delayed.”
The prosecutor also argued that defendant obstructed, delayed, and resisted the officers
throughout the rest of the encounter.
       Defendant’s trial counsel argued that the officers used excessive force and thus
were not lawfully attempting to execute their duties. She noted that defendant was
being arrested for an infraction and argued that the officers’ use of force became
“disproportionate” when defendant was “punched, kneed on, poked, wrapped, bag over
the head . . . .” She argued that even if the jury found that defendant “did one of the acts
on this list,” he should be found not guilty because the officers’ actions were unlawful.
       In closing argument, the prosecutor asserted that the officers only used force after
defendant had committed “several violations” of section 148(a)(1) and that the force was
not excessive “given the circumstances.” The prosecutor suggested that the jury “break it
down into events” and argued that there were “multiple avenues to find the defendant
guilty.”
       D.     Jury Question and Trial Court’s Response
       During deliberations, the jury submitted the following question: “If a peace
officer is correctly conducting duties, [¶] If a 148(a)[(1)] violation occurs, [¶] If then,



                                              10
subsequent to the violation, excessive force is used, does this invalidate the 148(a)[(1)]
violation?”
       The parties discussed an appropriate response to the jury’s question. The
prosecutor argued that the officers’ use of excessive force would not “negate any sort of
resisting prior to the use of excessive force.” He argued that the law did not permit an
individual to “hit officers” and have that conduct “negate[d]” if the officers subsequently
used excessive force.
       Defendant’s trial counsel argued that “any arrest made with excessive force is
equally unlawful” even if the officers originally had probable cause to arrest the person.
       Citing Yount v. City of Sacramento (2008) 43 Cal.4th 885 (Yount), the trial court
determined that due to “temporal breaks” in the incident, the answer to the jury’s
question—whether the use of excessive force “subsequent to” a violation of
section 148(a)(1) “invalidate[s]” the violation—was “no.” The jury was given “NO” as
the response to its question.
       E.      Verdict and Sentence
       The jury found defendant guilty of violating section 148(a)(1). The trial court
suspended imposition of sentence and placed defendant on probation for 24 months, with
an order that he spend four days in county jail, with credit for time served.
       F.      Appellate Division Proceedings
       Defendant appealed to the appellate division of the Santa Cruz County Superior
Court. Defendant argued that the trial court had responded to the jury’s question
incorrectly.
       In a two-to-one decision, the appellate division reversed defendant’s conviction.
The majority cited People v. White (1980) 101 Cal.App.3d 161 (White) for the
proposition that “if a defendant is charged with violating Penal Code [section] 148 by
resisting arrest and the arrest is found to be unlawful because it was made with excessive
force, a defendant cannot be convicted of that section.” The majority rejected the idea

                                             11
that “a resisting arrest event” may be divided into parts and concluded that the trial
court’s response to the jury question was erroneous. The majority found the error
prejudicial because the jury might have “found that the officer went too far,” negating
the lawful performance element of the offense.
       The dissenting judge would have found no instructional error. The dissent found
language in Yount, supra, 43 Cal.4th 885 to be controlling. In particular, the dissent
found significant the Yount court’s observation that if a defendant resists a lawful arrest,
an officer’s “ ‘subsequent use of excessive force would not negate the lawfulness of the
initial arrest attempt, or negate the unlawfulness of the criminal defendant’s attempt to
resist it.’ ” (Id. at p. 899.) The dissent would have held that “during a single bad police
encounter,” “a defendant can be both a perpetrator of a section 148 crime and an injured
victim of an unlawful arrest.”
       The appellate division certified the case for transfer to this court, and we ordered
that the case be transferred to us for hearing and decision. (Rules 8.1002, 8.1008.)
                                   III.     DISCUSSION
       Defendant asserts that if a police officer uses excessive force during an “evolving
event,” such excessive force invalidates a violation of section 148(a)(1), even if the
excessive force occurs subsequent to the defendant’s completed act of resisting,
obstructing, or delaying the officer. He contends the trial court erred by responding
“NO” when the jury asked whether the use of excessive force “subsequent to” a violation
of section 148(a)(1) “invalidate[s]” the violation.
       Defendant also contends the trial court erroneously instructed the jury that he
could be convicted of violating section 148(a)(1) if the jury found that he stepped in front
of an officer who was writing a citation.
       A.     Standard of Review
       The issues in this case are (1) whether the trial court correctly responded to the
jury question about whether the use of excessive force “subsequent to” a violation of

                                             12
section 148(a)(1) “invalidate[s]” the violation and (2) whether the trial court properly
instructed the jury on the acts that could constitute a violation of section 148(a)(1).
Because both issues involve questions of law, we apply the independent or de novo
standard of review. (See People v. Posey (2004) 32 Cal.4th 193, 218.)
       B.     Use of Excessive Force After a Violation of Section 148(a)
       Section 148(a)(1) provides that a “person who willfully resists, delays, or obstructs
any public officer, peace officer, or an emergency medical technician . . . in the discharge
or attempt to discharge any duty of his or her office or employment” is guilty of a
misdemeanor.
       Although not explicit in the statute, “[t]he lawfulness of the officer’s conduct is an
essential element of the offense of resisting, delaying, or obstructing a peace officer.
[Citation.]” (In re Chase C. (2015) 243 Cal.App.4th 107, 115.) “[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 the offense
against the officer was committed. [Citations.]” (In re Manuel G. (1997) 16 Cal.4th 805,
815 (Manuel G.).)
       Defendant relies on White, supra, 101 Cal.App.3d 161 in asserting that the use
of excessive force at any point during an encounter invalidates a violation of
section 148(a)(1). White, however, discussed only the requirement that a jury be
instructed that the use of excessive force during an arrest invalidates that arrest. White
did not address whether a defendant may be convicted of violating section 148(a)(1) if he
or she obstructs, delays, or resists an officer who is lawfully performing his or her duties,
and the officer subsequently uses excessive force in arresting the defendant for the
completed section 148(a)(1) violation.
       As in this case, the White defendant engaged in various acts that could be deemed
violations of section 148(a)(1). The defendant shoved a police officer who was arresting
the defendant’s companion. (White, supra, 101 Cal.App.3d at p. 165.) The defendant

                                               13
refused to comply with the officer’s commands to “stand back and stay out of the way.”
(Ibid.) When other officers attempted to arrest the defendant, she physically resisted by
swinging her arms and kicking her feet. She later jumped out of a police car and resisted
when an officer tried to put her back into the car by grabbing her and placing a “carotid
restraint (‘sleeper’ hold) on her.” (Ibid.)
       The jury instructions in White failed to tell the jurors “that if they found the arrest
was made with excessive force, the arrest was unlawful.” (White, supra, 101 Cal.App.3d
at p. 167.) This was error: “The instructions should have included the explanation that
where excessive force is used in making what otherwise is a technically lawful arrest, the
arrest becomes unlawful and a defendant may not be convicted of an offense which
requires the officer to be engaged in the performance of his duties [citations].” (Id. at
p. 164.) The White court also found two other instructional errors: the trial court had
erred by failing to give a self-defense instruction, and by failing to instruct that the duty
not to resist arrest does not apply to a charge of section 148. (White, supra, at p. 168.)
The appellate court found that the instructional errors were not cured by other
instructions. (Id. at pp. 169-170.)
       White held that “where excessive force is used in making what otherwise is a
technically lawful arrest, the arrest becomes unlawful and a defendant may not be
convicted of an offense which requires the officer to be engaged in the performance of
his duties [citations].” (White, supra, 101 Cal.App.3d at p. 164.) As defendant reads
White, a defendant cannot be convicted of violating section 148(a)(1) if excessive force is
used at any time during an “evolving event.”
       Although the defendant in White engaged in conduct that could have been the
basis for a section 148(a)(1) conviction prior to the officer’s use of excessive force, the
court did not consider whether the defendant’s conviction could have been based on the
pre-arrest conduct. Thus, that case is of little assistance to resolving the question
presented here, where the jury’s question indicated it found a completed violation of

                                              14
section 148(a)(1) prior to the officers’ use of excessive force. The instructional error in
White was the trial court’s complete failure to instruct the jury that an officer is not
engaged in the performance of his or her duties if he or she makes an arrest with
excessive force. The White court did not consider whether the defendant could have been
convicted of violating section 148(a)(1) if the jury found that a completed violation
preceded any use of excessive force. “ ‘ “It is axiomatic that language in a judicial
opinion is to be understood in accordance with the facts and issues before the court. An
opinion is not authority for propositions not considered.” ’ [Citations.]” (People v.
Knoller (2007) 41 Cal.4th 139, 154-155.)
       Defendant also relies on People v. Olguin (1981) 119 Cal.App.3d 39 (Olguin),
but that case also did not consider the question of whether a defendant can be validly
convicted of violating section 148(a)(1) if excessive force is used subsequent to a
completed offense. Moreover, Olguin is factually distinguishable from the instant case.
       In Olguin, prosecution witnesses testified that the defendant and his relatives were
being disruptive and harassing patrons in a bar. The defendant left the bar at the request
of police officers, but outside of the bar the defendant threatened one of the officers. The
officers arrested the defendant, who “was struggling much of the time,” and they
transported him to the police department, where the defendant kicked, head-butted, and
struggled with the officers. (Olguin, supra, 119 Cal.App.3d at p. 42.) The defendant,
however, testified that the officers arrested him without incident and then took him to
“a dark spot” behind the police department, where they indicated they were going to beat
him up. (Id. at p. 43.) The defendant claimed he refused to get out of the police car, but
the officers dragged him out and beat him up.
       The jury instructions in Olguin, like those in White, completely failed to inform
the jury that “excessive force by a police officer renders unlawful an otherwise lawful
arrest in that excessive force is not within the performance of the officer’s duty.”
(Olguin, supra, 119 Cal.App.3d at p. 44.) The jury instructions on lawful police conduct

                                              15
were only “related to probable cause for making the arrest and the proper procedures used
in making the arrest.” (Ibid.) The instructions should have informed the jury “that an
officer is acting unlawfully and not in the discharge of his duties when he uses excessive
or unreasonable force” and that the defendant could not be convicted of violating
section 148(a)(1) “if the officer used excessive or unreasonable force, thus placing the
officer outside the performance of his duties.” (Olguin, supra, at p. 46.) The
instructional error was prejudicial because the evidence “would have supported a finding
that the officers used excessive force and thus that they were not acting within the scope
of their duties” and the appellate court could not “say that it was shown that the ‘factual
question posed by the omitted instruction was necessarily resolved adversely to the
defendant under other, properly given instructions.’ [Citation.]” (Ibid.)
       Contrary to defendant’s claim, the Olguin court did not address “the issue of pre
and post excessive force separately.” Olguin held only that the jury should have been
instructed that the use of excessive force is outside the scope of an officer’s lawful duties,
and that the error was prejudicial because no other instruction asked the jury to determine
whether the officers had used excessive force. Thus, the Olguin case also is not authority
for the proposition that a defendant cannot be convicted of violating section 148(a)(1) if
an officer uses any excessive force at any time, including after a completed violation of
section 148(a)(1), since that proposition was not “actually considered and decided” by the
Olguin court. (In re Chavez (2003) 30 Cal.4th 643, 656; see ibid. [“a case is authority
only for a proposition actually considered and decided therein”].)
       Defendant contends that the trial court erroneously relied on dicta from Yount,
supra, 43 Cal.4th 885 in responding to the jury question. The Attorney General contends
that Yount supports the trial court’s response and should be followed.
       The plaintiff in Yount had been the defendant in a criminal case that resulted in
him pleading no contest to a violation of section 148(a)(1). (Yount, supra, 43 Cal.4th at
p. 891.) After being placed into a police car, Yount banged his head and kicked inside

                                             16
the car. He refused to provide identification to the police and continued kicking even
after being warned that the police would use a Taser. (Id. at p. 890.) An officer did use a
Taser, but Yount only “became more violent.” (Ibid.) As officers pulled Yount out of
the police car, Yount kicked one of the officers. He continued resisting even after three
officers restrained him. (Id. at pp. 890-891.) An officer decided to use a Taser again, but
“mistakenly grabbed his pistol” and shot Yount in the buttocks. (Id. at p. 891.)
       After his criminal case resolved, Yount sued the officer who had shot him, as well
as the City of Sacramento, for damages under both state and federal law. (Yount, supra,
43 Cal.4th at p. 891.) Yount alleged that the officer had used excessive force by shooting
him at a time when he was not attempting to interfere with the officers.
       The Yount defendants alleged that Yount’s federal and state law claims were
barred by Heck v. Humphrey (1994) 512 U.S. 477 (Heck) and Susag v. City of Lake
Forest (2002) 94 Cal.App.4th 1401 (Susag). Heck held that when a plaintiff files a
lawsuit under 42 U.S.C. section 1983 (hereafter section 1983) to recover damages for an
allegedly unconstitutional conviction, the lawsuit must be dismissed if “a judgment in
favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence”
unless the conviction has already been invalidated. (Heck, supra, at p. 487.) Susag
applied a similar rule to state law claims. (Susag, supra, at pp. 1406, 1413.)
       The Yount defendants argued that Yount’s federal and state law claims had to be
dismissed because Yount’s section 148(a)(1) conviction had not been invalidated and a
judgment in his favor would impliedly render that conviction invalid. Yount argued that
because his section 148(a)(1) conviction encompassed multiple acts of resistance, his
damages claims would not necessarily invalidate that conviction. (Yount, supra, 43
Cal.4th at p. 888.)
       The Yount court declined to hold that Yount could proceed with his claims simply
because the evidence showed “ ‘at least one violation of [Penal Code] section 148
independent of and discrete from an officer’s alleged misconduct.’ ” (Yount, supra, 43

                                            17
Cal.4th at p. 896.) The court explained that such a rule would lead to inconsistent
judgments and would reward criminal defendants “who engage in multiple acts of
resistance.” (Id. at p. 897.) Nevertheless, the Yount court found that Yount’s claims were
not totally barred. While Yount was barred from pursuing a claim that the officers were
unjustified in using “any force,” Yount could pursue his claim with respect to the
officer’s use of deadly force, because that would not imply that the section 148(a)(1)
violation was invalid. (Yount, supra, at p. 899.) Since Yount did not “deny that he
resisted the officers (or that the officers had the right to respond with reasonable force),
he pose[d] no challenge to his conviction” by challenging the officers’ use of deadly
force. (Id. at p. 900.)
       In explaining why the officers’ use of deadly force required a separate analysis
from the claim of excessive force, the Yount court acknowledged that “ ‘two isolated
factual contexts’ ” could exist within “ ‘one continuous chain of events.’ ” (Yount, supra,
43 Cal.4th at p. 899.) The court indicated that in such a case, it would be appropriate to
examine the timing of an officer’s excessive force in determining whether a claim was
barred by Heck: “ ‘For example, a defendant might resist a lawful arrest, to which the
arresting officers might respond with excessive force to subdue him. The subsequent use
of excessive force would not negate the lawfulness of the initial arrest attempt, or negate
the unlawfulness of the criminal defendant’s attempt to resist it.’ ” (Yount, supra, at
p. 899.)
       Defendant characterizes as dicta the Yount court’s comments about how an
officer’s “subsequent use of excessive force” does not necessarily negate a
section 148(a)(1) violation. (Yount, supra, 43 Cal.4th at p. 899.) We agree that the
comments were “unnecessary to the decision” and thus dicta. (See id. at p. 903 (conc.
opn. of Werdegar, J.).) Dicta from the California Supreme Court, however, “are highly
persuasive. [Citation.]” (People v. Wade (1996) 48 Cal.App.4th 460, 467.) And
“[w]hen the Supreme Court has conducted a thorough analysis of the issues and such

                                              18
analysis reflects compelling logic, its dictum should be followed. [Citation.]”
(Hubbard v. Superior Court (1997) 66 Cal.App.4th 1163, 1169 (Hubbard).)
       In our view, the dicta from Yount does reflect “compelling logic.” (Hubbard,
supra, 66 Cal.App.4th at p. 1169.) Our Supreme Court has emphasized that the validity
of a conviction of an offense involving a peace officer engaged in the performance of his
or her duties depends on whether “the officer was acting lawfully at the time the offense
against the officer was committed. [Citations.]” (Manuel G., supra, 16 Cal.4th at p. 815,
italics added.) If a jury finds that an officer is acting lawfully at the time a defendant
resists, obstructs, or delays that officer, there is no bar to the defendant’s conviction of
section 148(a)(1), even if an officer subsequently uses excessive force on the defendant. 4
       We agree with the Attorney General that the rule proposed by defendant “could
lead to absurd results.” A defendant who has resisted, obstructed, or delayed an officer
who is lawfully performing his or her duties would have an inducement to escalate his or
her conduct in hopes that an officer will respond excessively and thereby render the
arrest unlawful. Logically, the use of excessive force after a defendant’s completed
section 148(a)(1) offense should not provide a basis for finding the defendant did not
violate section 148(a)(1).
       Our conclusion is consistent with several federal cases finding that Heck did not
bar a plaintiff’s claims because the evidence showed that excessive force was used
subsequent to the completion of the section 148(a)(1) offense. For instance, in Sanford v.
Motts (9th Cir. 2001) 258 F.3d 1117 (Sanford), the plaintiff (Sanford) was arrested for
assault on an animal control officer. When Sanford then complained that the officers
were kicking her boyfriend, an officer punched her in the face. Sanford pleaded no


       4
         As indicated in Yount, however, an officer’s use of excessive force subsequent
to a completed section 148(a)(1) offense could provide a basis for defendant’s claim
under federal or state law, if the defendant can show that the claim would not necessarily
invalidate the section 148(a)(1) conviction. (See Yount, supra, 43 Cal.4th at p. 899.)

                                              19
contest to a violation of section 148(a)(1), but she then brought a section 1983 claim
against the officer and the city. The court rejected the defendants’ claims that Heck
applied to bar Sanford’s claim, explaining: “Excessive force used after an arrest is made
does not destroy the lawfulness of the arrest. Sanford’s conviction required that [the
officer] be acting lawfully in the performance of his duties ‘at the time the offense against
him was committed.’ [Citation.] Hence, if [the officer] used excessive force subsequent
to the time Sanford interfered with his duty, success in her section 1983 claim will not
invalidate her conviction.” (Sanford, supra, at p. 1120.)
       The plaintiff’s section 1983 claim was also not barred in Smith v. City of Hemet
(9th Cir. 2005) 394 F.3d 689 (Smith), because Smith’s conviction of violating
section 148(a)(1) could have been based on his pre-arrest conduct. In that case, the
police arrived at Smith’s house to investigate a domestic violence report. Smith was
outside, with his hands in his pockets. An officer twice instructed Smith to remove his
hands from his pockets, but Smith refused. (Smith, supra, at p. 693.) Smith complied
with the third instruction to remove his hands, but he twice refused to follow an officer’s
order to put his hands on his head and walk towards the officer. (Id. at pp. 693-694.) At
that point, an officer sprayed Smith with pepper spray, and other officers grabbed him,
slammed him into a door, and threw him down. An officer then ordered a canine to
attack Smith. The canine ultimately bit Smith multiple times and Smith was pepper-
sprayed several more times. (Id. at p. 694.)
       After pleading guilty to violating section 148(a)(1), Smith filed a complaint under
section 1983, alleging the officers had used excessive force. (Smith, supra, 394 F.3d at
p. 694.) The defendants claimed that Heck barred the claim because success on the
section 1983 claim would necessarily invalidate the section 148(a)(1) conviction. The
Ninth Circuit disagreed, emphasizing that section 148(a)(1) requires an officer to be
lawfully performing his or her duties at the time of the violation. The Ninth Circuit
noted that an officer who uses excessive force at the time of an arrest would not be

                                               20
lawfully performing his or her duties with respect to the arrest, but that “ ‘the time of the
arrest’ does not include previous stages of law enforcement activities that might or might
not lead to an arrest, such as conducting an investigation.” (Smith, supra, at p. 696.)
Thus, “[a] conviction based on conduct that occurred before the officers commence the
process of arresting the defendant is not ‘necessarily’ rendered invalid by the officers’
subsequent use of excessive force in making the arrest.” (Ibid.)
       Turning to the facts of the case, the Smith court noted that some of Smith’s “acts
of willful resistance, delay, or obstruction occurred prior to the time that the officers had
determined to arrest him for any criminal conduct” and that those acts “occurred in the
course of the officers’ lawful performance of their duty.” (Smith, supra, 394 F.3d at
p. 696.) Although Smith had also violated section 148(a)(1) “during the course of the
officers’ efforts to arrest him,” his conviction was not necessarily based on that conduct
and would not be invalidated by success on his section 1983 claim. (Smith, supra, at
p. 697.)
       In a post-Yount case, the Ninth Circuit similarly concluded “that a conviction
under California Penal Code [section] 148(a)(1) does not bar a [section] 1983 claim for
excessive force under Heck when the conviction and the [section] 1983 claim are based
on different actions during ‘one continuous transaction.’ ” (Hooper v. County of San
Diego (9th Cir. 2011) 629 F.3d 1127, 1134 (Hooper).) In Hooper, the defendant
struggled with an officer as he tried to arrest her, but she stopped struggling after the
officer got on top of her. The officer then called for his dog, who bit the defendant’s
head, causing serious injury. The defendant pleaded guilty to violating section 148(a)(1)
but sued the officer for damages, claiming excessive force. (Hooper, supra, at p. 1129.)
The Ninth Circuit held that the excessive force claim was not barred by Heck because the
use of the dog was excessive force that “would not ‘negate the lawfulness of the initial
arrest attempt’ ” nor negate the unlawfulness of Hooper’s attempt to resist that arrest
attempt. (Hooper, supra, at p. 1133.)

                                              21
       Sanford, Smith, and Hooper support our holding. Here, as in those cases, the jury
could have found that defendant committed a violation of section 148(a)(1) because
defendant resisted, obstructed, or delayed an officer who was acting in the lawful
performance of his duties “at the time.” (See Manuel G., supra, 16 Cal.4th at p. 815.)
For instance, the jury could have found a completed violation of section 148(a)(1) based
on defendant’s resisting, delaying and obstructing the officers when they were trying to
write a citation to Johnson. The jury could also have found that an officer used excessive
force when arresting defendant, subsequent to the completed section 148(a)(1) violation.
The use of excessive force after the completed section 148(a)(1) violation would not
invalidate the completed section 148(a)(1) violation.
       In sum, the trial court’s response to the jury question was correct. “NO,” was the
proper response when the jury asked, “If a peace officer is correctly conducting duties,
[¶] If a 148(a)[(1)] violation occurs, [¶] If then, subsequent to the violation, excessive
force is used, does this invalidate the 148(a)[(1)] violation?” If a peace officer is
“correctly conducting duties” at the time a defendant violates section 148(a)(1) and
“subsequent to the violation, excessive force is used,” the section 148(a)(1) violation is
not invalidated.
       C.     Instruction on Acts Violating Section 148(a)
       Defendant contends the trial court erroneously instructed the jury that he could
be convicted of violating section 148(a)(1) if the jury found that he stepped in front of an
officer who was writing a citation. He contends that, as a matter of law, his act of
stepping in front of Officer Brouilette did not violate section 148(a)(1) and thus “the jury
was instructed on an invalid theory.” 5



       5
         Defendant did not object to the instruction in the trial court, and he did not raise
this issue in his appeal to the appellate division. The Attorney General does not argue
(continued)

                                              22
              1.      Instructions
       In pertinent part, the jury was instructed on the elements of a section 148(a)(1)
offense as follows: “To prove that the Defendant is guilty of this crime, the People must
prove that, one, Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace
officers lawfully performing or attempting to perform their duties as peace officers.
[Two, t]he Defendant willfully resisted, obstructed, or delayed Jeff Auldridge, or
Matthew Montes, or Jeffrey Brou[i]llette in the performance or attempted performance
of those duties. And three, when the Defendant acted, he knew or reasonably should
have known that Jeff Auldridge, or Matthew Montes, or Jeffrey Brou[i]llette were peace
officers performing or attempting to perform their duties. . . .”
       The jury was further instructed that the prosecution had multiple theories about
how defendant violated section 148(a)(1). The jury was told: “The People allege that the
Defendant resisted, obstructed, or delayed Jeff Auldridge, or Matthew Montes, or Jeffrey
Brou[i]llette by doing the following. [¶] Jeffrey Brou[i]llette. Stepping in front of
Brou[i]llette while he was writing a citation. . . .”
       The jury instructions also specified: “You may not find the Defendant guilty
unless you all agree that the People have proved that the Defendant committed at least
one of the alleged acts of resisting, obstructing, or delaying a peace officer who was
lawfully performing his or her duties, and you all agree on which act he committed. . . .”


that defendant’s failure to previously raise this issue should result in forfeiture. We
recognize that “[t]rial courts have the duty to screen out invalid theories of conviction,
either by appropriate instruction or by not presenting them to the jury in the first place.”
(People v. Guiton (1993) 4 Cal.4th 1116, 1131 (Guiton).) We also recognize that we
have the “power to review any matter and make orders and judgments as the appellate
division of the superior court by statute would have in such case.” (§ 1471; see
rule 8.1012(e).) We will assume the issue is not forfeited, and we observe that our
general transfer order did not limit the issues to be considered. (Cf. Huntington
Continental Townhouse Assn., Inc. v. Miner (2014) 230 Cal.App.4th 590, 595, 607
[where matter was certified and transferred from the appellate division “to address a
single question,” the Court of Appeal declined to address other issues raised].)

                                               23
              2.      Legal Principles
       It is well-settled that reversal is required when “ ‘a particular theory of
conviction . . . is contrary to law,’ ” i.e., the jury has been instructed on “a ‘legally
inadequate theory.’ ” (Guiton, supra, 4 Cal.4th at p. 1128.) It is equally well-settled
that “[i]f the inadequacy of proof is purely factual, of a kind the jury is fully equipped to
detect, reversal is not required whenever a valid ground for the verdict remains, absent an
affirmative indication in the record that the verdict actually did rest on the inadequate
ground.” (Id. at p. 1129.)
              3.      Analysis
       Defendant asserts that the jury was erroneously told that his act of stepping in
front of the officer who was writing a citation could constitute a violation of
section 148(a)(1). He argues that as a matter of law, that act could not amount to “actual
obstruction” of the officer because his act “did nothing to prevent the preparation of the
citation.” According to defendant, the evidence showed that Officer Brouillette stopped
writing the citation only due to subjective concerns for officer safety, not because
defendant did anything to prevent completion of the citation.
       Defendant compares his act of standing between the officer and Johnson to the act
of the defendant in People v. Wetzel (1974) 11 Cal.3d 104 (Wetzel). In Wetzel, officers
asked the defendant for consent to enter her apartment to search for a burglary suspect.
(Id. at p. 107.) The defendant refused: she stood in the doorway, blocking the officers
from entering and insisting that the officers needed a warrant. She was ultimately
convicted of violating section 148. On appeal, the defendant claimed “that her acts were
nothing more than a passive assertion of a constitutional right and that such acts cannot
form the basis for criminal conduct.” (Wetzel, supra, at pp. 107-108.) The California
Supreme Court agreed and reversed the section 148 conviction. The court noted that the
officers had never actually attempted to make a warrantless entry into the home and that
the defendant’s “entire course of conduct was directed to refusal of consent, and nothing

                                               24
more.” (Wetzel, supra, at p. 109.) The court held that as a matter of law, a refusal to
consent “cannot constitute grounds for a lawful arrest or subsequent search and seizure.”
(Ibid.)
          Wetzel does not suggest the Fourth Amendment confers a right to refuse to obey
reasonable police commands issued during lawful police conduct. Moreover, the instant
case is distinguishable from Wetzel. Here, defendant was not asserting a constitutional
right such as the right to refuse consent to a warrantless search. Defendant actively
intervened between the officer and the person being cited, during the officer’s lawful
attempt to issue a citation.
          Case law establishes that a defendant may properly be convicted of violating
section 148(a)(1) based on acts that do not amount to “ ‘forcible interference with an
officer’s activities.’ ” (In re Muhammed C. (2002) 95 Cal.App.4th 1325, 1329-1330
(Muhammed C.).) This court has upheld a section 148(a) violation, for instance, where a
juvenile willfully delayed an officer’s performance of duties by speaking to a detainee in
a police car, after being ordered to stop. (Muhammed C., surpa, at p. 1331.) This court
explained that a trier of fact could reasonably find the juvenile “willfully delayed the
officers’ performance of duties by refusing the officers’ repeated requests that he step
away from the patrol car,” since the officers had to interrupt their processing of the car to
attend to the juvenile. (Id. at p. 1330.)
          Here, defendant willfully stood in between an officer and Johnson, while the
officer was writing a citation to Johnson, after the officers had instructed a pedestrian to
go around the officer and Johnson. Defendant then ignored multiple requests and orders
from the officers to sit down after they explained that defendant was interfering with the
citation process. Defendant never complied with the officers’ numerous orders. Rather,
defendant distracted Officer Brouillette during the citation process, creating a reasonable
concern for officer safety, and thereby delayed the officer in completing the citation
process. A reasonable jury could find that this constituted a violation of

                                              25
section 148(a)(1). Thus, the trial court did not err by telling the jury that “[s]tepping in
front of Brou[i]llette while he was writing a citation” was a basis for finding that
defendant committed an act of “resisting, obstructing, or delaying a peace officer who
was lawfully performing his or her duties.”
                                   IV.    DISPOSITION
       The judgment is affirmed.




                                              26
                             ___________________________________________
                             BAMATTRE-MANOUKIAN, J.




WE CONCUR:




__________________________
GREENWOOD, P.J.




__________________________
GROVER, J.




People v. Williams
H044819
Trial Court:                Santa Cruz County Superior Court
                            Superior Court Nos.: 16CR00388, 16AP00012


Trial Judges:               Hon. Jeff Almquist
                            Hon. Timothy R. Volkmann
                            Hon. Paul P. Burdick
                            Hon. Paul Marigonda


Attorney for Appellant:     Jonathan Che Gettleman
Andrew Kevin Williams       Cabellero and Gettleman Law Offices, Inc.,
                            under appointment by the Court of Appeal


Attorneys for Respondent:   Xavier Becerra,
The People                  Attorney General
                            Gerald A. Engler,
                            Chief Assistant Attorney General
                            Jeffrey M. Laurence,
                            Senior Assistant Attorney General
                            Catherine A. Rivlin,
                            Supervising Deputy Attorney General
                            Sara Turner,
                            Deputy Attorney General
                            Lisa H. Ashley-Ott,
                            Deputy Attorney General

                            Jeffrey S. Rosell,
                            District Attorney Santa Cruz County
                            Michael R. Mahan,
                            Assistant District Attorney Santa Cruz County




People v. Williams
H044771
