People v. Geradian CA4/2

Filed 9/4/20 P. v. Geradian CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E073272
v. (Super.Ct.No. FWV19001074)
JOHN ALAN GERADIAN, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Jon D. Ferguson
and Katrina West, Judges. Affirmed as modified with directions.
Erica Gambale, under appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael Pulos and Teresa
Torreblanca, Deputy Attorneys General, for Plaintiff and Respondent.
1
INTRODUCTION
Defendant and appellant John Alan Geradian was convicted of one count of
battery with injury on a peace officer in violation of Penal Code1 section 243, subdivision
(c)(2), and two counts of resisting an executive officer in violation of section 69. He was
sentenced to three years for the battery and concurrent three-year terms for each of the
resisting an officer counts.
Defendant raises two contentions on appeal: (1) there was insufficient evidence to
sustain the battery conviction; and (2) the sentence on one of the resisting an officer
counts should have been stayed under section 654. We agree that the sentence on one of
the resisting an officer counts should have been stayed under section 654 and otherwise
affirm the judgment.
I.
FACTUAL AND PROCEDURAL HISTORY OF THE CASE
A. Facts
On March 31, 2019, sheriff’s deputy W.S. responded to a department store in
Rancho Cucamonga. When he arrived, defendant was in the automotive department
arguing with a store employee. Deputy S. approached them and asked what was going
on. Defendant was wearing a bulky black coat that extended to his mid-thigh. Deputy S.
patted defendant down to check for weapons, then asked defendant for identification.
1 All further statutory references are to the Penal Code.
2
Defendant gave Deputy S. his identification and the deputy provided the information to
dispatch.
Deputy S. then told defendant he would be searching him a second time. He asked
defendant to turn around and put his hands behind his back. The parties stipulated
Deputy S.’s detention and both searches of defendant were lawful. Defendant turned
around as requested and put his hands behind his back. He asked Deputy S. not to put
him in handcuffs because he had not broken the law. Deputy S. grabbed defendant’s
wrists and felt defendant tense up, so the deputy reached for his handcuffs. As he did
that, defendant turned back around to face the deputy and put his fists up in a fighting
stance. Deputy S. called for backup. Defendant’s fists were at chest level. The deputy
grabbed defendant’s wrists and told him two or three times to turn around and put his
hands behind his back. Defendant did not comply. Deputy S. took defendant to the
ground and continued telling him to stop resisting and to give him his hands.
Defendant’s hands were underneath his body. He was kicking around trying to push up
off the floor.
When sheriff’s deputy R.M. arrived, Deputy S. was on the ground trying to
handcuff defendant with the assistance of two loss prevention employees. Deputy M. ran
over to help. The deputies told defendant multiple times to stop resisting and to put his
hands behind his back. It took about two minutes to get the handcuffs on defendant.
Deputy S. single-locked the handcuffs, meaning the handcuffs could get tighter as
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defendant moved his wrists. Double-locking the handcuffs would have prevented them
from tightening.
The deputies escorted defendant out of the store in handcuffs. Defendant can be
heard on an audio recording of the incident complaining of pain as they escorted him out
and asking the deputies to lock the handcuffs. One of the deputies told defendant they
would as soon as he “stop[ped] doing that.” Defendant was not cooperating with the
deputies. He was pulling away from them and yelling. He would not walk on his own.
The deputies had to basically drag him out of the store. One of the deputies can be heard
on the audio recording telling defendant, “walk on your own, let’s go,” and, “[s]top it.
Come on, let’s go. Stop it. Come on.”
When they got outside, defendant used his body to push back and forth and against
the deputies. The deputies pushed him against the patrol car to stabilize him. They told
defendant to get in the car. Defendant planted his feet on the ground and refused to get
in. He kicked against the car and put his shoulder against it to avoid being placed inside.
Deputy M.’s face was close to defendant’s body as the deputies struggled to get
defendant in the patrol car. At some point during the struggle, defendant elbowed
Deputy M. in the mouth, chipping the deputy’s front left tooth. Deputy M. can be heard
on the audio recording saying, “He just elbowed me in my fucking face.” Defendant
responded by saying, “I didn’t elbow you in the face, how is that?” “How did I elbow
you in the face,” and, “Did I elbow this guy in the face?” The deputies responded by
telling defendant to relax and to get in the patrol car. After they got defendant into the
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car, Deputy S. asked Deputy M. if he was okay. Deputy M. responded, “Chipped my
tooth pretty bad.”
Deputy M. testified that his tooth was jagged and uncomfortable after it was
chipped. He went to the dentist around a month-and-a-half later and had his tooth filed
down and reshaped.
B. Proceedings
Defendant was charged in count 1 with battery on a peace officer causing injury
for elbowing Deputy M. (§ 243, subd. (c)(2).) He was charged in count 2 with resisting
Deputy M. (§ 69), and in count 3 with resisting Deputy S. (§ 69). A jury convicted him
of all three counts. The court sentenced defendant to the upper term of three years for
battery and concurrent upper terms of three years each for the two counts of resisting an
executive officer. Neither party nor the court, addressed section 654 at the sentencing
hearing. The court also sentenced defendant to a consecutive term of one year (one-third
the midterm of three years) for an unrelated probation violation case. Defendant timely
appealed.
II.
SUFFICIENCY OF THE EVIDENCE
Defendant argues the evidence was insufficient as a matter of law to convict him
of battery with injury on a peace officer because the evidence did not show that he
willfully struck Deputy M.; rather, defendant argues, the record shows that he recklessly
or accidentally struck the deputy, neither of which satisfy the intent element of battery.
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When the defendant raises a sufficiency of the evidence claim on appeal, we
“review the whole record in the light most favorable to the judgment below to determine
whether it discloses substantial evidence—that is, evidence which is reasonable, credible,
and of solid value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.) “[I]t is the
jury, not the appellate court which must be convinced of the defendant’s guilt beyond a
reasonable doubt.” (People v. Bean (1988) 46 Cal.3d 919, 933.) “If the circumstances
reasonably justify the trier of fact’s findings, reversal of the judgment is not warranted
simply because the circumstances might also reasonably be reconciled with a contrary
finding. [Citation.]” (People v. Lindberg (2008) 45 Cal.4th 1, 27.)
Battery is the “willful and unlawful use of force or violence upon the person of
another.” (§ 242.) “ ‘Any harmful or offensive touching constitutes an unlawful use of
force or violence’ under this statute. [Citations].” (People v. Shockley (2013) 58 Cal.4th
400, 404.) When a battery is inflicted on a peace officer engaged in the performance of
his or her duties and causes injury to the officer, the offense may be punished as a felony,
provided the defendant knows or reasonably should know that the individual is a peace
officer engaged in the performance of his or her duties. (§ 243, subd. (c)(2).) Injury, for
purposes of the offense, is defined as a physical injury that requires professional medical
treatment. (§ 243, subd. (f)(5).)
Battery is a general intent crime that requires the defendant to act willfully.
(People v. Lara (1996) 44 Cal.App.4th 102, 107; § 242.) As with all general intent
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crimes, the required mental state entails only an intent to do the act that causes the harm,
not to achieve any additional consequence. (People v. Davis (1995) 10 Cal.4th 463, 518,
fn. 15.) “The word ‘willfully,’ when applied to the intent with which an act is done or
omitted, implies simply a purpose or willingness to commit the act, or make the omission
referred to. It does not require any intent to violate law, or to injure another, or to acquire
any advantage.” (§ 7, subd. (1).) A person acts willfully when he “ ‘ “ ‘knows what he is
doing, intends to do what he is doing and is a free agent.’ ” ’ ” (People v. Atkins (2001)
25 Cal.4th 76, 85.)
Applying these authorities to the present case, to satisfy the element of willfulness
the evidence needed to show that defendant intended to harmfully or offensively touch
the officer. In other words, it needed to show that he intentionally struck the officer. It
did not need to show that he intended to injure the officer.
Here, the evidence showed that defendant was doing anything he could to avoid
being handcuffed and placed into the patrol car, including physically struggling with the
deputies. Inside the store, defendant put his fists up in a fighting stance towards Deputy
S., after which it took four men—two deputies and two loss prevention employees—
nearly two minutes to handcuff him. Defendant then refused to walk out of the store and
had to be dragged out by the deputies. When they got outside, he refused to get in the
patrol car. He used his body to push back and forth against the deputies. He planted his
feet on the ground, kicked against the car, and put his shoulder against the car to avoid
being placed inside. He then elbowed Deputy M. in the face hard enough to chip his
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tooth. From this evidence, the jury could reasonably have concluded that elbowing
Deputy M. was one of the many intentional physical acts of struggle defendant engaged
in with the deputies to avoid being placed into the patrol car.
Defendant argues the evidence only showed he recklessly or accidentally struck
the deputy. (People v. Lara, supra, 44 Cal.App.4th at p. 107 [“ ‘Reckless conduct alone
does not constitute a sufficient basis for . . . battery. . . .’ ”].) This was one possible
interpretation of the evidence, but it was not the only one. (See People v. Castaneda
(2011) 51 Cal.4th 1292, 1325 [“defendant’s alternative inferences do not render
insufficient the substantial evidence of his commission” of the crime].) “[When] the
circumstances reasonably justify the trier of fact’s findings, reversal of the judgment is
not warranted simply because the circumstances might also reasonably be reconciled with
a contrary finding. [Citation.]” (People v. Lindberg, supra, 45 Cal.4th at p. 27.)
Accordingly, we affirm the defendant’s conviction for battery with injury on a peace
officer.
III.
APPLICATION OF SECTION 654 TO COUNT 2
Defendant next contends his sentence for resisting Deputy M. (count 2) should be
stayed under section 654, rather than run concurrently, because it occurred during the
same course of conduct as the battery with injury on Deputy M. (count 1) and he only had
a single objective in committing both offenses—to resist the officer.
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Defendant did not raise an objection under section 654 at the sentencing hearing,
but it is settled that questions involving the applicability of section 654 can be raised for
the first time on appeal. (People v. Hester (2000) 22 Cal.4th 290, 295.) Respondent does
not argue otherwise.
Section 654 precludes multiple punishment for a single act or omission, or an
indivisible course of conduct. (People v. Deloza (1998) 18 Cal.4th 585, 591.) It provides
in relevant part: “An act or omission that is punishable in different ways by different
provisions of law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission be punished
under more than one provision.” (§ 654, subd. (a).) The purpose of the statute is to
ensure that punishment is commensurate with a defendant’s culpability. (People v. Perez
(1979) 23 Cal.3d 545, 552.)
To determine whether a course of conduct that violates more than one statute is
subject to section 654’s proscription on multiple punishment, the court must assess the
intent and objective of the actor. “ ‘If all of the offenses were incident to one objective,
the defendant may be punished for any one of such offenses but not for more than one.’ ”
(People v. Rodriguez (2009) 47 Cal.4th 501, 507.) “On the other hand, if the evidence
discloses that a defendant entertained multiple criminal objectives which were
independent of and not merely incidental to each other, he may be punished for the
independent violations committed in pursuit of each objective even though the violations
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were parts of an otherwise indivisible course of conduct. [Citations.]” (People v. Perez,
supra, 23 Cal.3d at pp. 551-552, fn. omitted.)
“ ‘The defendant’s intent and objective are factual questions for the trial court; [to
permit multiple punishments,] there must be evidence to support a finding the defendant
formed a separate intent and objective for each offense for which he was sentenced.
[Citation.]’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.) “When a trial court
sentences a defendant to separate terms without making an express finding the defendant
entertained separate objectives, the trial court is deemed to have made an implied finding
each offense had a separate objective. [Citation.]” (People v. Islas (2012) 210
Cal.App.4th 116, 129.)
The conduct at issue here—defendant’s resisting and elbowing of Deputy M.—
was part of a single course of conduct. Defendant began resisting the deputies inside the
store and did not stop until they were able to forcibly place him in the patrol car. It was
during the course of defendant’s struggle with the deputies at the patrol car that he
elbowed Deputy M. in the face. We agree with defendant that there was not evidence in
the record to show his objective in elbowing the deputy was for any purpose other than to
avoid being arrested and placed into the patrol car.
People v. Martin (2005) 133 Cal.App.4th 776, 780, presents a similar factual
scenario. In Martin, the defendant struggled with four officers while he was being
arrested. One officer attempted to restrain the defendant and was injured when the
defendant wrapped his legs around the officer’s leg and jerked his body backward.
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(Ibid.) Another officer then knocked the defendant to the ground, where he flailed
around and kicked at the officers who were trying to control his lower body. It took all
four officers to restrain him. (Ibid.) Like the present case, the defendant in Martin was
convicted and sentenced concurrently for battery with injury on a peace officer (§ 243,
subd. (c)(2)) and resisting an executive officer (§ 69). (Martin, at p. 779.) On appeal, he
argued that section 654 prohibited punishment on both offenses because his sole
objective in committing the offenses was to escape. (Martin, at p. 780.) The court
agreed, stating, “[t]he battery upon the officer does not appear to have been intentional,
but merely the result of appellant’s physical gyrations aimed at freeing himself. The two
offenses occurred, if not concurrently, in close temporal proximity, which although not
determinative on the question of whether there was a single objective, is a relevant
consideration. [Citation.] Hence, we conclude that section 654 applies . . . .” (Id. at
p. 781.)2
Like Martin, the record here shows defendant committed the battery during the
course of resisting the officers. While the evidence was sufficient to show defendant
willfully elbowed Deputy M. (as addressed ante), it did not show that he did so for any
objective other than to resist the arrest.
Respondent contends defendant had separate intents for the offenses: to prevent
the deputies from arresting him and to cause injury to Deputy M. As evidence of this,
2 The Martin court went on to affirm the defendant’s sentence based on the
multiple victim exception to section 654, which does not apply here because Deputy M.
was the named victim in both counts at issue. (People v. Martin, supra, 133 Cal.App.4th
at pp. 782-783.)
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respondent contends defendant’s act of elbowing the deputy was not essential to the
commission of the resisting offense but was a gratuitous, independent act of violence for
which the court properly imposed a concurrent sentence.
We disagree. Section 69, of which defendant was convicted in count 2, penalizes
a 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, or who
knowingly resists, by the use of force or violence, the officer, in the performance of his or
her duty.” (§ 69, subd. (a).) The statute is designed to protect law enforcement officers
against violent interference with the performance of their duties. (People v. Martin,
supra, 133 Cal.App.4th at p. 782.) Defendant’s conduct in elbowing Deputy M. was not
a gratuitous, independent act of violence; it was an element of the offense. It was both a
battery on the officer and a means defendant used to resist the officer. (See People v.
Rodriguez (2015) 235 Cal.App.4th 1000, 1006 [section 654 applies where a defendant
commits one crime as the means of perpetrating another crime].)
In sum, to permit multiple punishment under section 654, there must be evidence
to support the court’s finding that the defendant formed a separate intent and objective for
each offense for which he was sentenced. (People v. Coleman, supra, 48 Cal.3d at
p. 162.) Here, no evidence was presented to support the trial court’s implied finding that
defendant intended to injure Deputy M. separate and apart from his resisting arrest.
Accordingly, we conclude that the trial court erred imposing count 2 concurrently, rather
than staying the execution of the sentence under section 654. (People v. Jones (2012) 54
12
Cal.4th 350, 353 [section 654’s proscription on multiple punishment includes the
imposition of concurrent sentences].) We therefore modify the judgment to stay the
execution of count 2 pursuant to section 654.
VI.
ABSTRACT OF JUDGMENT
Finally, we note that the abstract of judgment does not correctly reflect the
sentence imposed by the trial court and order it corrected. (People v. Mitchell (2001) 26
Cal.4th 181, 186-187 [an appellate court may order correction of clerical errors in the
abstract of judgment on its own motion].)
The abstract of judgment incorrectly reflects that the court imposed the low term
of three years on counts 1 through 3, when it should reflect the court imposed the upper
term of three years on those counts. It also does not reflect that the one-year sentence
imposed in the probation violation case was a one-third consecutive term. Finally, it
incorrectly reflects that the conviction in the present case was based on a plea, not a jury
trial. Accordingly, we order the abstract of judgment be corrected to properly reflect the
sentence imposed by the trial court and to reflect that the present case involved a jury
trial.
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V.
DISPOSITION
The judgment is modified to stay the execution of the sentence imposed on count 2
pursuant to section 654. The trial court is directed to amend the abstract of judgment to
reflect the judgment as modified, to correct the errors identified in section IV of the
discussion, and to forward a certified copy of the amended/corrected abstract of judgment
to the Department of Corrections and Rehabilitation. As so modified, the judgment is
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J.
We concur:
CODRINGTON
J.
RAPHAEL
J.
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