People v. Sho CA2/6

Filed 5/18/21 P. v. Sho CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
THE PEOPLE, 2d Crim. No. B303131
(Super. Ct. No. 16F-04609)
Plaintiff and Respondent, (San Luis Obispo County)
v.
MONSURU WOLE SHO,
Defendant and Appellant.
Monsuru Wole Sho appeals the judgment entered after a
jury convicted him of resisting an executive officer by force or
violence (Pen. Code,1 § 69, subd. (a)). The trial court sentenced
him to eight months in state prison and ordered the term to run
consecutively to a three-year prison sentence he was already
serving in another case for kidnapping and robbery. Appellant
raises claims of evidentiary and sentencing error. We shall order
that the abstract of judgment be modified to reflect that a court
All statutory references are to the Penal Code unless
1
otherwise stated.
operations assessment (§ 1465.8) and a conviction assessment
(Gov. Code, § 70373) were not imposed. Otherwise, we affirm.
STATEMENT OF FACTS
On the afternoon of May 5, 2016, California Highway
Patrol Officer Douglas Patterson was on patrol when he saw a
vehicle traveling at a speed of approximately 85 miles per hour in
a 55 miles-per-hour zone. Officer Patterson activated his lights
and effected a traffic stop.
Appellant was the driver of the vehicle and Michelle
Harmon was sitting in the front passenger seat. The officer
explained the reason for the stop and asked appellant for his
driver’s license. Appellant identified himself as “Michael Sho”
and said he has a driver’s license in Africa but not in the United
States. He also claimed he did not have his wallet.
Officer Patterson asked appellant to exit his vehicle and
walk with him to his patrol car. After appellant complied, the
officer asked him to write down his name, address, and date of
birth. Officer Patterson then asked appellant how old he was.
Appellant gave conflicting information about his date of birth,
which led the officer to believe he might have provided a false
identification.
Officer Patterson told appellant to wait by the patrol car
while he went to talk to Harmon, who was still sitting in the
front passenger seat of appellant’s vehicle. When the officer
approached Harmon, he saw a man’s wallet in a woman’s purse
that was open and on the floorboard in front of Harmon. Officer
Patterson asked Harmon to hand him the wallet and she
complied. After the officer obtained the wallet, appellant’s
demeanor changed and the officer had to repeatedly tell him to go
back to the patrol car. Inside the wallet, Officer Patterson found
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driver’s licenses and debit cards bearing the names of other
people.
Officer Patterson returned to his patrol car and placed the
wallet on the dashboard of his patrol vehicle, where it was in
view of the vehicle’s dashboard surveillance camera (dash cam).2
Appellant grabbed the wallet and the officer attempted to
restrain him by placing his arm behind his back. Officer
Patterson repeatedly ordered appellant to drop the wallet, but
appellant refused to comply and fought with the officer. During
the struggle, both men fell to the ground. Appellant kept fighting
with Officer Patterson and said the officer “was going to have to
kill him.”
Officer Patterson was able to retrieve a can of pepper spray
and sprayed appellant with it. The spray had no effect on
appellant and he kept fighting with the officer. As the fight
continued, appellant lifted himself off the ground and began
carrying Officer Patterson. After the officer was able to regain
his footing, he pulled out his collapsible baton and used it to push
appellant into nearby vegetation. Officer Patterson then
retrieved the keys from the ignition of appellant’s vehicle so he
could not drive away.
Appellant got up and ran back toward the patrol car, which
had its keys in it with the ignition running. He reached for the
driver’s side door, then ran around to the other side of the car
when he saw Officer Patterson chasing him. Appellant ran back
to his own vehicle and got into the driver’s seat. Officer
Patterson approached appellant and pepper sprayed him for a
2 The dash cam footage of the incident was played for the
jury at trial.
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second time, but once again it had no effect. Appellant then
climbed out of his vehicle through the front passenger window.
While Officer Patterson went to his patrol car to retrieve a
beanbag shotgun, appellant returned to his own vehicle, retrieved
a satchel, and positioned himself at the front of the vehicle.
Appellant removed what appeared to be a small caliber handgun
from the satchel and pointed it at the officer. Officer Patterson
retrieved his firearm and pointed it at appellant. Appellant stood
up, held the satchel in front of his face, and began backing away.
Appellant walked into the street, causing several vehicles to
swerve to avoid hitting him, and threw several items on the
grounds that he had retrieved from the satchel.
Appellant began walking back toward his vehicle. Officer
Patterson repeatedly told appellant to put his hands up but he
did not comply. As appellant stood about 35 feet from Officer
Patterson, the officer repeatedly shot him with his beanbag
firearm. Appellant ran off again, and Officer Patterson followed
him in his patrol car. Appellant ran into a field and discarded
several more items he had retrieved from his satchel.
Additional officers subsequently arrived and appellant was
taken into custody. Officer searched the area and found four
counterfeit driver’s licenses, three debit cards, and a cell phone.
No firearm was found.
DISCUSSION
Evidence of Appellant’s Possession of Counterfeit
Identification and Debit Cards
Appellant contends the trial court committed reversible
error in admitting evidence of the counterfeit driver’s licenses
and debit cards that he attempted to discard after Officer
Patterson contacted him. He claims the court erred in concluding
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the evidence was relevant to prove his motive for resisting Officer
Patterson in violation of section 69. He also claims the evidence
should have been excluded as more prejudicial than probative
under Evidence Code section 352. We are not persuaded.
Pursuant to Evidence Code section 1101, subdivision (b),
“‘[e]vidence that a defendant committed crimes other than those
for which he is on trial is admissible when it is logically,
naturally, and by reasonable inference relevant to prove some
fact at issue, such as motive, intent, preparation or identity.
[Citations.] The trial court judge has the discretion to admit such
evidence after weighing the probative value against the
prejudicial effect. [Citation.] When reviewing the admission of
evidence of other offenses, a court must consider: (1) the
materiality of the fact to be proved or disproved, (2) the probative
value of the other crime evidence to prove or disprove the fact,
and (3) the existence of any rule or policy requiring exclusion
even if the evidence is relevant. [Citation.] Because this type of
evidence can be so damaging, “[i]f the connection between the
uncharged offense and the ultimate fact in dispute is not clear,
the evidence should be excluded.” [Citation.]’ [Citation.] ‘“We
review for abuse of discretion a trial court’s rulings on relevance
and admission or exclusion of evidence under Evidence Code
sections 1101 and 352.”’” (People v. Fuiava (2012) 53 Cal. 4th 622,
667-668.)
Appellant contends the challenged evidence was not
relevant to prove his motive for resisting Officer Patterson in
violation of section 69 because that offense is a general intent
crime. We disagree. Although a defendant’s “‘good or innocent’”
motives may be irrelevant to the determination whether he or
she committed a general intent crime (see People v. Kelly (1990)
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51 Cal. 3d 931, 959, italics added), the evidence that appellant
was in possession of counterfeit documents was not offered for
such a purpose.
“When a defendant pleads not guilty, he or she places all
issues in dispute, and thus the perpetrator’s identity, intent and
motive are all material facts. [Citations.]” (People v. Walker
(2006) 139 Cal. App. 4th 782, 796.) Even though motive is not a
matter which must be proven, proof of a motive “‘is material as
evidence tending to refute or support the presumption of
innocence.’” (People v. Scheer (1998) 68 Cal. App. 4th 1009, 1017.)
Here, the challenged evidence was relevant to explain why
appellant behaved as he did. (See People v. Roldan (2005) 35
Cal. 4th 646, 707, overruled on another ground in People v. Doolin
(2009) 45 Cal. 4th 390, 421, fn. 22 [recognizing that “evidence of
motive makes the crime understandable and renders the
inferences regarding defendant’s intent more reasonable”].)
Moreover, the court reasonably found that the evidence was not
unduly prejudicial. Although appellant also claims the court
erred in failing to give a limiting instruction on the jury’s
consideration of the evidence, he did not request such an
instruction so his claim is forfeited. (People v. Clark (2011) 52
Cal. 4th 856, 942.)
In any event, any error in admitting the evidence was
plainly harmless. Appellant was convicted of resisting an
executive officer by force or violence under section 69. Officer
Patterson’s uncontradicted testimony and the dash cam footage
unequivocally establish that appellant forcefully resisted the
officer’s efforts to detain him. When Officer Patterson tried to
handcuff appellant, he pulled away from the officer and
continued fighting with him after they both fell to the ground. In
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light of this evidence, any reasonable juror would have found that
appellant was guilty of violating section 69, regardless of his
motive for doing so. (See People v. Bernal (2013) 222 Cal. App. 4th
512, 519, italics omitted [recognizing that “force used by a
defendant in resisting an officer’s attempt to restrain and arrest
the defendant is sufficient to support a conviction” under section
69].) Because it is not reasonably probable that appellant would
have achieved a more favorable result had the challenged
evidence been excluded, his claim of prejudicial error fails.
(People v. Watson (1956) 46 Cal. 2d 818; see People v. Winkler
(2020) 56 Cal. App. 5th 1102, 1164, and cases cited therein
[recognizing that claims of error in admitting other crimes
evidence are evaluated under the Watson standard of review].)
Consecutive Sentencing
Appellant also contends the court erred in ordering that his
eight-month sentence run consecutively to the three-year
sentence he was already serving in another case for kidnapping
and robbery. The court reasoned that the prior and current
crimes had predominantly independent objectives (Cal. Rules of
Court, rule 4.425(a)(1)), “involved separate acts of violence or
threats of violence” (id., rule 4.425(a)(2)), and “were committed at
different times or separate places,” rather than “a single period of
aberrant behavior” (id., rule 4.425(a)(3)).
Although each of these factors were independently
sufficient to support the imposition of a consecutive sentence,
appellant contends the court erred in imposing such a sentence
because the court also stated “I was amazed that the officer had
the restraint that he did. I’m grateful you weren’t shot.”
According to appellant, this statement reflects that the court
violated rule 4.425(b)(3), which provides that “[a] fact that is an
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element of the crime may not be used to impose consecutive
sentences.” But the court did not refer to any element of
appellant’s crime in making its observation. The court did not
make any mention of appellant’s use of force or violence, but
rather merely noted that Officer Patterson had exercised great
restraint in dealing with appellant and that appellant was lucky
to have emerged from the encounter without serious injuries.
Because the court did not rely on any element of the crime in
imposing a consecutive sentence and cited three factors that were
each independently sufficient to support such a sentence,
appellant’s claim of error fails.
Court Operations and Conviction Assessments
At the sentencing hearing, the trial court stated that the
$40 court operations assessment (§ 1465.8) and $30 conviction
assessment (Gov. Code, § 70373) were “waived.” The abstract of
judgment, however, indicates that both assessments were
imposed. Appellant contends, and the People correctly concede,
that the abstract of judgment should be modified to conform with
the court’s oral pronouncement. (See People v. Zackery (2007)
147 Cal. App. 4th 380, 385, citation omitted [“Where there is a
discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral
pronouncement controls”].)
DISPOSITION
The judgment is modified to reflect that a court operations
assessment (§ 1465.8) and a conviction assessment (Gov. Code,
§ 70373) were not imposed. The superior court clerk shall
prepare a modified abstract of judgment and forward a copy to
the Department of Corrections and Rehabilitation. As so
modified, the judgment is affirmed.
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NOT TO BE PUBLISHED.
PERREN, J.
We concur:
YEGAN, Acting P.J.
TANGEMAN, J.
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Timothy S. Covello, Judge
Superior Court County of San Luis Obispo
______________________________
Will Tomlinson, 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, Senior
Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising
Deputy Attorney General, David F. Glassman, Deputy Attorney
General, for Plaintiff and Respondent.