People v. Roachford CA2/3 ( 2020 )

Filed 9/24/20 P. v. Roachford CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B299360
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. MA075272
v.
BRIAN ANTHONY ROACHFORD,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Charles A. Chung, Judge. Affirmed.
G. Martin Velez, under appointment by the Court
of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and
Gary A. Lieberman, Deputy Attorneys General for Plaintiff
and Respondent.
_________________________
A jury convicted Brian Anthony Roachford of resisting two
executive officers, attempting to take a law enforcement vehicle,
and vandalism. He appeals, and we affirm.
BACKGROUND
An amended information charged Roachford with two
counts of resisting an executive officer (Pen. Code, § 69)1 (counts
2 and 4), one count of attempted taking of a law enforcement
vehicle (Veh. Code, §§ 664 & 10851, subd. (b)(2)) (count 3), and
one count of vandalism over $400 (§ 594, subd. (a)) (count 5). The
information alleged Roachford served three prior prison terms
and had two prior serious felony convictions.
The trial centered on events on the morning of December 7,
2018. Wendy Peterson testified she was driving her minivan
to work on the 14 Freeway north in Lancaster when she saw a
white sedan stopped in the middle of the freeway. Roachford and
another man stood next to a truck stopped on the right shoulder.
Roachford walked onto the freeway toward the white sedan, and
Peterson and all the other drivers on the freeway stopped their
cars to avoid hitting him. Worried about Roachford’s safety,
Peterson called 911. Roachford tried to open the back driver’s
side door on the sedan. The car drove off with Roachford hanging
onto the door handle, and dragged him a short distance until
he let go and fell onto the freeway. Injured, he walked toward
Peterson’s minivan.
As Peterson talked to the 911 operator, Roachford pounded
on her window, looking scared and unwell and saying he needed
help. He tried to open all the minivan’s doors, slamming his body
into the sides of the minivan. Roachford climbed on top of the
1 Unless otherwise indicated, all subsequent statutory
references are to the Penal Code.
2
minivan, and then slid down the windshield onto the hood and
walked away, taking off his shirt. As traffic began to move past
him, he returned and again begged Peterson for help, banged
on her window, tried to open all the doors, and climbed back
on top of the minivan.
Peterson saw a black and white police car driving
southbound. Roachford got off the top of the minivan, hopped
over the center divider, and wandered into slowing traffic on the
southbound lanes. A car’s side mirror hit his arm. The police car
pulled into the freeway median and uniformed deputies got out
of the car. Roachford walked toward them and they tried to
handcuff him, but after a brief struggle, Roachford ran away.
One of the officers tased him, he fell to the ground, and the police
tied his hands and his feet.
Peterson’s minivan was dented, scratched, and smeared
with blood. Repair of the damage cost over $3,500, and Peterson
paid a $500 deductible.
Sheriff’s Deputy Russell Williams drove to the scene with
his partner Deputy Ulise Ruiz in response to a radio call, with
the car’s lights and sirens on. Deputy Williams saw Roachford
walking against traffic in the southbound lane of the freeway.
Dodging other vehicles, he parked the car facing southbound
in front of Roachford. Roachford, who was very sweaty although
it was cold and he wore a tank top, was staring blankly into
the distance. He complied with a command to put his hands on
the driver’s side fender of the police car. Deputy Williams was on
his right side and Deputy Ruiz was on his left. Deputy Williams
reached for Roachford’s right arm and told him to put his hands
behind his back, but “[h]e was so sweaty and covered in blood
it was like grabbing a wet noodle.” Deputy Ruiz reached for
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Roachford’s left wrist, but was unable to keep his grasp as
Roachford fought to break free, flailing his arms side to side and
moving his body back and forth. Deputy Williams told Roachford
to stop fighting and made more than five failed attempts to
get Roachford’s arms behind his back, but Roachford resisted,
tightening his muscles and becoming very rigid. He screamed,
“I need to get out of here,” turned to the right, and threw an
elbow at Deputy Williams’s face. Deputy Williams jumped back.
Roachford lunged to the driver’s door and grabbed the
handle, yelling, “I’m going to take your car.” He opened the door
one to three feet, pushing Deputy Williams into the side of the
car and breaking the side mirror. The sheriff’s car was running
with the keys in the ignition and all the deputies’ gear inside, and
Deputy Williams was afraid Roachford would drive off. Deputy
Williams lunged forward and managed to shut the door with both
hands, but Roachford opened the door again. Deputy Williams
grabbed Roachford’s right arm with both hands and pulled
him away from the door. He lost his grip and Roachford ran
southbound toward moving traffic while the deputies told him
to stop running. Deputy Ruiz pulled out his taser and tased
Roachford, who fell onto his stomach three or four feet away.
After five seconds Roachford began to kick and yell,
and Deputy Ruiz warned he would tase him again if he kept
struggling. The deputies got on top of Roachford and struggled
to handcuff him as he kicked, thrashed his body side to side, and
tried to stand up. Roachford yelled he had insects in his anus
and his mouth and he needed to get them out, reaching inside the
back of his pants. After about five minutes, additional deputies
arrived, and they managed to restrain Roachford, handcuff him,
and hobble his legs together. Eventually they took the hobble off
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and he was able to walk to a gurney. Paramedics took him to
the hospital, where he was medically cleared.
Based on their training and experience, the deputies
thought Roachford was under the influence of PCP, although they
did not know whether his blood or urine was tested. PCP could
cause hallucinations and paranoia, rigid muscles, elevated body
temperature, aggression, and agitation.
The parties stipulated that Roachford was on parole on
the day of the incident.
The jury convicted Roachford on all counts. On count 3
(attempted driving or taking of a law enforcement vehicle without
consent), the jury found true that in committing the offense,
Roachford attempted to take or drive a Los Angeles County
Sheriff’s Department Patrol Vehicle. The trial court found true
that Roachford had two prior serious felony convictions and
three prior prison terms. The court sentenced him to six years
in state prison on count 2 (resisting an executive officer/Deputy
Williams), doubling the upper term of three years under the
Three Strikes law. The court stayed the sentences on the other
counts under section 654, and struck the prior prison term
enhancements.
DISCUSSION
Roachford argues the trial court erred when it instructed
the jury that his defense of voluntary intoxication did not apply
to the counts of resisting an executive officer.
The jury instructions on counts 2 and 4 (resisting executive
officers Williams and Ruiz in the performance of their duty, § 69)
told the jury the prosecution had to prove Roachford used force to
resist the executive officer, the officer was performing his duties,
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and when Roachford acted, he knew the executive officer was
performing his duties.
The instructions on count 3 (attempted unlawful taking
of the patrol car, Veh. Code, § 10851, subds. (a) and (b)) required
the prosecution to prove Roachford attempted to take a vehicle
(the patrol car) without the owner’s consent, and “intended to
deprive the owner of possession or ownership of the vehicle for
any period of time.” The instruction continued: “If you find the
defendant guilty of unlawfully taking or driving a vehicle, you
must then decide whether the People have proved the additional
allegation that the defendant took or drove an emergency vehicle
on call. To prove this allegation, the People must prove that:
1. The vehicle was a distinctively marked law enforcement
vehicle; 2. The vehicle was on an emergency call when it was
taken; AND 3. The defendant knew that the vehicle was on
an emergency call.” (See Veh. Code, § 10851, subd. (b)(2).)
The court instructed the jury it could consider evidence of
Roachford’s voluntary intoxication “only in deciding whether the
defendant acted with the specific intent required in Count 3. . . .
In connection with the crime charged in count 3, the People
have the burden of proving beyond a reasonable doubt that the
defendant acted with the required specific intent. If the people
have not met this burden, you must find the defendant not
guilty of count 3. You may not consider evidence of voluntary
intoxication for any other purpose. Voluntary intoxication is
not a defense to the crimes charged in counts 2, 4, and 5.”
In closing, the prosecutor argued Roachford himself stated
he was going to take the patrol car. The additional allegation
in count 3 was proven by photographic evidence the patrol car
was distinctively marked, the deputies testified they were on
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an emergency call, and the car’s lights and sirens were on,
so Roachford knew the car was responding to an emergency.
Voluntary intoxication was a defense to this count only, and
for the defense to be valid, “he had to have been so high that
he didn’t understand what was happening so much so that
he couldn’t form the intent to try to take the vehicle.” To the
contrary, Roachford told the deputies he was going to take
their car. The defense argued Roachford did not know what
he was doing that day because he was under the influence,
perhaps of PCP.
Roachford argues the court was required to instruct the
jury that voluntary intoxication was also a valid defense to the
two counts alleging a violation of section 69. Although trial
counsel did not object to the voluntary intoxication instruction
as given, we must address the merits of a claim of instructional
error affecting substantial rights. (People v. Bedolla (2018) 28
Cal. App. 5th 535, 544.) As we conclude the claim has no merit,
we do not address Roachford’s argument that failure to object
was ineffective assistance of counsel.
Section 29.4 provides: “(a) No act committed by a person
while in a state of voluntary intoxication is less criminal by
reason of his or her having been in that condition. Evidence
of voluntary intoxication shall not be admitted to negate the
capacity to form any mental states for the crimes charged,
including, but not limited to, . . . [the] knowledge . . . with
which the accused committed the act. (b) Evidence of voluntary
intoxication is admissible solely on the issue of whether or not
the defendant actually formed a required specific intent. . . .”
(Italics added.) This language means “[e]vidence of voluntary
intoxication is inadmissible to negate the existence of general
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criminal intent.” (People v. Atkins (2001) 25 Cal. 4th 76, 81.)
“ ‘A crime is characterized as a “general intent” crime when the
required mental state entails only an intent to do the act that
causes the harm; a crime is characterized as a “specific intent”
crime when the required mental state entails an intent to cause
the resulting harm.’ ” (Id. at p. 86.)
Although distinguishing general intent and specific intent
is “notoriously difficult” (People v. Hood (1969) 1 Cal. 3d 444, 456),
section 69 is an example of that distinction. The first part of
subdivision (a) penalizes “[e]very person who attempts, by means
of any threat or violence, to deter or prevent an executive officer
from performing any duty imposed upon the officer by law.”
(§ 69, subd. (a).) Attempting by violence to deter or prevent
an officer from performing a duty is a specific intent offense,
because the defendant must act with the intent to cause harm
by preventing the officer from performing the duty. (People v.
Rasmussen (2010) 189 Cal. App. 4th 1411, 1420.) But the second
part of subdivision (a), the offense of which Roachford was
convicted, penalizes anyone “who knowingly resists, by the use
of force or violence, the officer, in the performance of his or her
duty.” (§ 69, subd. (a).) This is a general intent offense, because
the defendant must act only with the knowledge that the victim
is an officer doing his duty, without any separate intent to cause
a certain outcome. (Rasmussen, at pp. 1419-1421.) Intoxication
was not a defense.
Roachford cites People v. Foster (1971) 19 Cal. App. 3d 649,
655, and People v. Reyes (1997) 52 Cal. App. 4th 975 (Reyes),
to support his argument that voluntary intoxication is a defense
to general intent crimes when actual knowledge is an element.
People v. Foster held voluntary intoxication was relevant to
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defend against the charge of possession of heroin, a general
intent crime requiring knowledge. (Foster, at p. 655.) But the
statute then in effect, section 22 (the predecessor to section 29.4),
allowed evidence of voluntary intoxication “ ‘whenever the
actual existence of any particular purpose, motive, or intent is
a necessary element to constitute any particular species or degree
of crime.’ ” (Foster, at p. 654.) By contrast, the statute in effect
at the time of Roachford’s trial, section 29.4, states in subdivision
(a) that voluntary intoxication is not relevant to the defendant’s
capacity to form “any mental states for the crimes charged,
including . . . knowledge,” and in subdivision (b) that evidence
of voluntary intoxication is admissible only to show whether
a defendant “actually formed a required specific intent.” (Italics
added.)
The defendant in People v. Reyes was charged with the
receipt of stolen property, which required the prosecution to
prove the property was stolen, the defendant possessed it, and
the defendant knew the property was stolen. (Reyes, supra,
52 Cal.App.4th at p. 984.) Conscious possession of stolen
property was not enough; additional evidence must show the
defendant knew the property was “ ‘tainted.’ ” (Id. at pp. 984-
985.) But simply receiving stolen goods with the knowledge they
were stolen is not a crime if the defendant intended to restore
it to the owner: “ ‘The critical factor is the defendant’s intent
at the time he receives or initially conceals the stolen property
from the owner. The intent to restore must exist at the moment
the stolen property is accepted. . . . If the defendant received
or concealed stolen property with general criminal intent to aid
the thief, or to deprive the owner of possession . . . he possesses
the requisite wrongful intent.’ ” (Id. at p. 985.) “[W]ith regard
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to the element of knowledge, receiving stolen property is
a ‘specific intent crime.’ ” (Ibid.)
People v. Reyes has been criticized as based on outdated
and inapplicable authority. (People v. Berg (2018) 23 Cal. App. 5th
959, 969.) In any event, it is easily distinguishable here.2 All the
prosecution had to prove is that Roachford knowingly resisted
an officer engaged in performing his duty. The second part of
section 69, subdivision (a) does not require any additional intent
or goal, or any knowledge beyond that the officers were doing
their duties. The trial court was not required to instruct on
voluntary intoxication as a defense to counts 2 and 4.
And even if the court had erred when it restricted the jury’s
consideration of voluntary intoxication to count 3, it would be
state law error, requiring reversal only if there was a reasonable
probability the error affected the verdict adversely to Roachford.
(People v. Mendoza (1998) 18 Cal. 4th 1114, 1134-1135.) We
see no such probability here. Although it was free to consider
Roachford’s voluntary intoxication on count 3, in finding him
guilty and finding true the allegation, the jury necessarily found
he was able to form the intent to deprive the officers of the use
of the patrol vehicle, and able to know the patrol car was on
an emergency call. It is not reasonably probable the jury would
2 People v. Moore (2018) 19 Cal. App. 5th 889, 894, states:
“For example, the crime of resisting arrest requires the
perpetrator to know the person they are resisting is an officer,
and thus evidence of voluntary intoxication is admissible to show
the defendant did not know. (Reyes, [supra, 52 Cal.App.4th]
at pp. 985-986.)” People v. Quarles (2018) 25 Cal. App. 5th 631,
635 quotes this passage, and in turn Roachford quotes it in his
opening brief. Reyes does not even mention the crime of resisting
an officer, and makes no such holding.
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at the same time conclude his voluntary intoxication made
Roachford unable to know the deputies were officers performing
their official duty and acquit him on counts 2 and 4.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
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