Filed 5/11/16 P. v. Jimenez CA4/1
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D068407

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. SCD256352)

MARTIN JIMENEZ,

         Defendant and Appellant.


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

Fraser, Judge. Affirmed.

         Sheila O'Connor, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,

Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and

Respondent.
       Defendant Martin Jimenez was convicted by a jury of one count of resisting an

executive officer with force or violence (Pen. Code, § 69)1 (count 4), along with

numerous other offenses, after he stole a car and subsequently led officers on a chase that

ended only after he crashed the vehicle and officers subdued him. After the jury returned

its verdicts, Jimenez sought dismissal of count 4 under section 1385, arguing there was

insufficient evidence that he used impermissible force or violence when he resisted the

officers, and also moved to reduce count 4 to a misdemeanor under section 17,

subdivision (b). The court granted the request to reduce count 4 to a misdemeanor, and

otherwise denied Jimenez's motion.

       On appeal, Jimenez argues the court erred when it denied his motion to dismiss

count 4 for insufficient evidence. He alternatively argues the court should have

substituted a conviction under section 148 as a "lesser included offense" of section 69

because there was insufficient evidence Jimenez used the requisite force or violence

necessary for committing the section 69 offense.

                                             I

                                          FACTS

       A. Prosecution Case

       On May 29, 2014, Officer Ruiz was driving a marked police vehicle when he

spotted Jimenez driving a car that had been stolen from the victim earlier that day. Ruiz

activated his lights and sirens to accomplish a stop, but Jimenez sped away, running



1      All further statutory references are to the Penal Code.
                                             2
several red lights during the pursuit. He finally stopped after police deployed "spike

strips" and Jimenez crashed on the side of the freeway.

       Ruiz's car was stopped three to four feet from Jimenez's car. Ruiz got out of his

car with his weapon drawn and trained on the car, and yelled at Jimenez between eight to

10 times to get out of the car with his hands up. Jimenez opened his door, but did not get

out, and instead stayed in the car yelling at the officers. He also reached toward the

passenger seat of the car as though to grab something. Officer Whann, believing Jimenez

was reaching for a weapon, deployed a K-9 to subdue Jimenez.2 The dog bit Jimenez in

the arm and then released him, and Jimenez kicked at the dog and tried to climb toward

the passenger seat. Whann, having seen Jimenez previously reaching toward the

passenger seat and seeing him again trying to get to that area, gave the "bite" command

again and the dog then bit Jimenez in the leg and held on. Jimenez continued to flail his

arms, so Whann approached him and punched him in the face two or three times to stop

his flailing arms. Several officers pulled Jimenez from the car and tried to control him,

and Whann ordered the dog to release Jimenez and extricated the dog from the melee.

However, Jimenez did not submit, but instead continued swinging his arms, striking Ruiz

in the chest, shoulders and arm, and also kicking at the officers. Officer Eckard applied

pepper spray, but Jimenez continued struggling against the officers. Officer Wallace also

punched Jimenez, trying to subdue him, but as Jimenez resisted, his fingernail cut the



2     Before giving the bite command, Whann had shouted at Jimenez to show his
hands and get out of the vehicle, and had warned there was a police dog and that Jimenez
would be bitten.
                                             3
inside of Wallace's wrist. Wallace finally used a carotid restraint and, while Jimenez was

momentarily unconscious, officers were able to place cuffs on him. Inside the stolen car,

officers found two knives on the passenger side floor that were not the property of the

owner of the car.

       B. Defense

       Jimenez did not testify. The defense called a person who was involved in a 2011

altercation with Ruiz and Whann in which the officers employed allegedly excessive

force, and another person involved in a 2013 altercation with Ruiz in which Ruiz

employed force.

                                             II

                                        ANALYSIS

       A. Procedural Background

       The jury was instructed on the elements of the section 69 offense alleged in count

4, and on the elements of the lesser included offense of section 148. (Cf. People v. Smith

(2013) 57 Cal.4th 232, 243-245.) The instructions explained both offenses required that,

at the time Jimenez resisted, the officer was lawfully performing or attempting to perform

his duties. The jury was also instructed that an officer is not "lawfully performing" his or

her duties when he or she employs excessive force to make an otherwise lawful arrest or

detention, and explained the special rules controlling the use of force.3



3      The court gave an instruction, patterned on CALCRIM No. 2670, which instructed
the jury in part that, "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
                                             4
       After the jury returned its guilty verdict on the section 69 offense, Jimenez moved

under section 1385 to dismiss count 4 for insufficient evidence and in the furtherance of

justice, and also moved to reduce count 4 to a misdemeanor under section 17, subdivision

(b). The court granted the request to reduce count 4 to a misdemeanor, and otherwise

denied Jimenez's motion.

       B. Legal Standards

       Jimenez's principal challenge on appeal asserts the trial court's ruling on his

section 1385 motion was reversible error because the evidence was insufficient to show

his resistance did not constitute permissible self-defense in reaction to the officers' use of

excessive force. We therefore must examine the substantive standards concerning the

law of excessive force by a peace officer and the standards for our review of a ruling

denying a motion to dismiss under section 1385.

       Section 69 and the Role of Excessive Force

       A defendant is guilty of violating section 69 when he or she resists the officer by

the use of force or violence as long as that officer was acting lawfully at the time of the

offense. (People v. Smith, supra, 57 Cal.4th at p. 241.) However, an essential element of

that offense is that the officer at the time of the arrest must be engaged in the lawful

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. [¶] If a peace officer uses unreasonable or excessive force while arresting or
attempting to arrest 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: (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."
                                              5
performance of his or her duties, and use of excessive force by an officer to accomplish

an arrest is unlawful. (People v. White (1980) 101 Cal.App.3d 161, 167.) Thus, where

an arrest is made with excessive force, the arrest is unlawful and the defendant is not

guilty of those crimes that by definition require the officer to be lawfully engaged in the

performance of his or her duties. (People v. Olguin (1981) 119 Cal.App.3d 39, 45.)

Stated differently, when a peace officer uses unreasonable or excessive force in making

the arrest or the detention, the person being arrested does not violate the law if he or she

uses reasonable force to defend him- or herself against the use of excessive force.

(People v. Sons (2008) 164 Cal.App.4th 90, 102-103.)

       As the court in Martinez v. County of Los Angeles (1996) 47 Cal.App.4th 334

(Martinez) explained at pages 343 to 344:

          "Such excessive force claims are analyzed under the Fourth
          Amendment and its 'reasonableness' standard and the proper inquiry
          focuses upon whether the deputies acted reasonably . . . . [Citation.]
          The test of reasonableness in this context is an objective one, viewed
          from the vantage of a reasonable officer on the scene. It is also
          highly deferential to the police officer's need to protect himself and
          others: 'The "reasonableness" of a particular use of force must be
          judged from the perspective of a reasonable officer on the scene,
          rather than with the 20/20 vision of hindsight. [Citation.] . . . The
          calculus of reasonableness must embody allowance for the fact that
          police officers are often forced to make split-second judgments—in
          circumstances that are tense, uncertain, and rapidly evolving—about
          the amount of force that is necessary in a particular situation. [¶]
          [T]he "reasonableness" inquiry in an excessive force case is an
          objective one: the question is whether the officers' actions are
          "objectively reasonable" in light of the facts and circumstances
          confronting them, without regard to their underlying intent or
          motivation. [Citations.]' [Quoting Graham v. Connor (1989) 490
          U.S. 386, 396-397.] [¶] ' . . . Thus, under Graham, we must avoid
          substituting our personal notions of proper police procedure for the
          instantaneous decision of the officer at the scene. We must never

                                              6
          allow the theoretical, sanitized world of our imagination to replace
          the dangerous and complex world that policemen face every day.
          What constitutes "reasonable" action may seem quite different to
          someone facing a possible assailant than to someone analyzing the
          question at leisure.' (Smith v. Freland (6th Cir. 1992) 954 F.2d 343,
          347.) [¶] The Supreme Court's definition of reasonableness is
          therefore 'comparatively generous to the police in cases where
          potential danger, emergency conditions or other exigent
          circumstances are present.' (Roy v. Inhabitants of City of Lewiston
          (1st Cir. 1994) 42 F.3d 691, 695 . . . .) In effect, 'the Supreme Court
          intends to surround the police who make these on-the-spot choices in
          dangerous situations with a fairly wide zone of protection in close
          cases. . . .' (Ibid.)"

       Standards Governing Motion to Dismiss Under Section 1385

       Section 1385 permits a trial court, either on its own motion or upon the application

of the prosecuting attorney, and in furtherance of justice, to order an action to be

dismissed. (People v. Hatch (2000) 22 Cal.4th 260, 268.) "[T]rial courts historically

have had the power to acquit for legal insufficiency of the evidence pursuant to section

1385." (Ibid.) To justify an order of dismissal under section 1385 for legal insufficiency

of the evidence to support the conviction, "the record must show that the court viewed the

evidence in the light most favorable to the prosecution and concluded that no reasonable

trier of fact could find guilt beyond a reasonable doubt." (Hatch, at p. 273.)

       When assessing a claim of insufficiency of evidence, whether as part of a motion

seeking dismissal under section 1385 based on insufficiency of the evidence (People v.

Hatch, supra, 22 Cal.4th at pp. 272-273) or on appeal to this court (People v. Iboa (2012)

207 Cal.App.4th 111, 117), the court must "review 'the whole record in the light most

favorable to the judgment' and decide 'whether it discloses substantial evidence . . . such

that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.'

                                              7
[Quoting People v. Johnson (1980) 26 Cal.3d 557, 578.] Under this standard, the court

does not ' "ask itself whether it believes that the evidence at the trial established guilt

beyond a reasonable doubt." [Citation.] Instead, the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any rational trier of

fact could have found the essential elements of the crime beyond a reasonable doubt.'

[Quoting Jackson v. Virginia (1979) 443 U.S. 307, 318-319.]" (Hatch, at p. 273.)

       C. The Trial Court Did Not Err in Denying Jimenez's Section 1385 Motion

       We conclude the trial court correctly denied Jimenez's section 1385 motion

because there was evidence, viewed most favorably to the prosecution, from which a

rational trier of fact could have found the officers used reasonable force to arrest or detain

Jimenez, to overcome his resistance, and in self-defense. Jimenez does not dispute there

was ample cause for police to initiate the traffic stop, and it is undisputed he did not yield

but instead attempted to escape, which led to a chase that ended only when the car

Jimenez was driving was disabled by the crash. Moreover, there was ample evidence to

support the conclusion police did not employ physical force until after they first used

repeated verbal demands, attempting to get Jimenez to get out of the car with his hands

up, which he disregarded. Moreover, police did not initiate the use of physical force until

after Jimenez opened his door, continued yelling at police rather than yielding, and began

to reach toward the passenger seat of the car as though to grab something, which led

Whann to believe it could have been a weapon. Finally, even after police used the police

dog in an attempt to overcome Jimenez's resistance and as a self-defense measure, he



                                               8
continued to resist so vigorously that it required several officers, and ultimately the use of

a carotid choke hold, to finally overcome his resistance.

       This evidence would permit a rational trier of fact to conclude that, "viewed from

the vantage of a reasonable officer on the scene [and being] highly deferential to the

police officer's need to protect himself and others" (Martinez, supra, 47 Cal.App.4th at

p. 343), the initial deployment of the police dog was not an unreasonable level of force

"judged from the perspective of a reasonable officer on the scene." (Ibid.) Moreover,

because Jimenez knew, or reasonably should have known, that he was being arrested, he

was not permitted to use force to resist the use of reasonable force to subdue him, but

nevertheless continued his struggles, striking police with his feet and hands until he was

ultimately disabled.

       Jimenez argues there was no substantial evidence that police employed reasonable

force to overcome his resistance because there was no evidence from which a jury could

have concluded he resisted the verbal commands to surrender. He asserts that, because

the commands were in English and he is a Spanish speaker, and there was ambient noise

from the sirens that could have obscured the commands, there was no evidence he could

hear or understand the commands to show his hands and get out of the car or the warning

the police dog would be deployed if he did not surrender. However, there was no

evidence Jimenez did not understand English and did not hear the commands. Moreover,

a jury could find that a reasonable person, whose escape attempt in a stolen car has ended

in a crash and is surrounded by police who are yelling at him with weapons drawn, would

understand that police are demanding his surrender. Most importantly, "[t]he test of

                                              9
reasonableness in this context is an objective one, viewed from the vantage of a

reasonable officer on the scene" and not with the benefit of " 'the 20/20 vision of

hindsight.' " (Martinez, supra, 47 Cal.App.4th 334 at pp. 343-344.) A reasonable officer

could have perceived Jimenez heard and understood the commands and was electing to

reach for a weapon rather than submitting.

       We conclude there is ample evidence from which a rational trier of fact could have

concluded the initial deployment of the dog, and the subsequent efforts to overcome

Jimenez's continued resistance to being subdued, represented the use of reasonable force

to arrest him, to overcome his resistance, and to act in self-defense. Accordingly,

Jimenez's request for dismissal under section 1385, based on the purported lack of any

evidence to support the verdict, was not error.

       D. The Remaining Claim

       Jimenez argues that, because there was no evidence he used force to resist the

officers, the appellate court should find him guilty of the lesser included offense of

resisting a peace officer under section 148 rather than of resisting an executive officer in

violation of section 69, and claims "the trial court erred for not finding so." First,

Jimenez did not seek reduction of the charges below, which waives the issue. (People v.

Carmony (2004) 33 Cal.4th 367, 375-376 [stating in dicta that failure on the part of a

defendant to invite the court to exercise its power to dismiss under section 1385 waives

or forfeits right to raise issue on appeal].) More importantly, there was ample evidence

Jimenez employed force to resist the officers: he kicked at the dog, and swung and kicked

at officers when they tried to subdue him. We may not disregard the jury's verdict in

                                              10
order to find he committed the lesser offense, which is distinguishable only insofar as a

defendant does not employ force when resisting the peace officer, because there was

ample evidence supporting the conclusion Jimenez did employ force to resist the officers,

and therefore his conviction of the greater offense is supported by substantial evidence.

                                      DISPOSITION

       The judgment is affirmed.




                                                                          McDONALD, J.

WE CONCUR:


HALLER, Acting P. J.


AARON, J.




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