(Humboldt County Super. Ct. No. CR084607S) Case No. CR084607S, Timothy P. Cissna, Judge.
The opinion of the court was delivered by: Bruiniers, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Appellant Joe Ray Rasmussen was convicted by jury of a felony charge of resisting an executive officer (Pen. Code, § 69),*fn2 and three misdemeanors--exhibiting a deadly weapon (§ 417, subd. (a)(1)), assaulting a peace officer (§ 241, subd. (c)), and resisting or obstructing a peace officer (§ 148, subd. (a)(1)). Rasmussen was sentenced to three years in state prison on the felony charge and concurrent county jail terms on the misdemeanors. At the time of sentencing, he received credit for 286 days served in jail, plus 142 days under the then-operative version of section 4019, plus 92 days served in a state hospital, for a total of 520 days.
On appeal, Rasmussen seeks our review of the sealed transcript of the trial court's hearing on his pretrial motion for discovery of complaints against the police officers involved in the incident giving rise to the charges against him (Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).) He also contends that (1) the trial court erred in instructing the jury as to the intent required for the crime of resisting an executive officer, (2) the sentences on the misdemeanor convictions must be stayed pursuant to section 654, and (3) he is entitled to additional custody credits based on required retroactive application of 2009 amendments to section 4019.
Having reviewed the transcript of the trial court's hearing on Rasmussen's Pitchess motion, we find no error. In addition, we conclude the trial court did not err in instructing the jury. Accordingly, we affirm Rasmussen's convictions.
We conclude, however, that the sentence on one misdemeanor conviction must be stayed under section 654, and we agree Rasmussen is entitled to retroactive application of the amendments to section 4019. In addition, the sentence reflected in the abstract of judgment as to another of the misdemeanor counts is inconsistent with the sentence orally imposed by the trial court. We order modification of Rasmussen's sentence to reflect these changes.
I. Factual and Procedural Background
On August 7, 2008, Rasmussen entered a Bank of America branch in Arcata. He was carrying a backpack and walked with crutches; his right leg had been amputated below the knee. He spoke with teller Vanessa Carrasco and asked to withdraw money from his safety deposit box, but he did not have a key or a valid box number.
Bank manager A.J. Gonzales attempted to assist Rasmussen, but could not locate any account belonging to him. Rasmussen became agitated. He motioned toward the vault and said he had money there, stated he and "Oprah" owned the bank, and told Gonzales to take him back to the vault. Gonzales refused. Rasmussen became more agitated, frustrated and angry. He swore at Gonzales and threatened to kill him and his staff, saying he had killed other bank managers before. Gonzales, Carrasco, and another bank employee, Brittany Rogers, testified that Rasmussen raised his crutch as if he were going to use it to strike Gonzales and Carrasco. Gonzales asked Rogers to call the police. Gonzales also told Rasmussen he needed to leave the bank.
Gonzales continued to talk to Rasmussen until police officers entered the bank's east entrance. When Rasmussen saw the police arrive, he picked up his backpack and went out the northwest exit, walking quickly on his crutches. The officers followed him out.
Arcata police sergeants Ben Whetstine and Bart Silvers arrived at the bank in response to a report of someone inside the bank threatening to kill people. When the officers entered, they saw Rasmussen on the west side of the bank. Rasmussen began walking away rapidly on his crutches when he saw Whetstine. Whetstine told Rasmussen to stop. When Rasmussen did not stop, Whetstine, followed by Silvers, ran after Rasmussen and followed him out of the bank.
Whetstine caught up with Rasmussen at the corner of Eighth and G Streets and told him to stop. Rasmussen turned around, apparently let go of one of his crutches, and grabbed the other crutch with both hands like a baseball bat. He took a step toward Whetstine as if he were going to swing the crutch at him. Whetstine believed Rasmussen was threatening him with the crutch and was capable of carrying out the threat.
Whetstine stepped back and took out his taser. Whetstine told Rasmussen he would use the taser on Rasmussen if he did not put down the crutch. Rasmussen dropped the crutch and sat down.
When Silvers arrived, along with Officer Jorge Sanchez, Rasmussen was crouched down with his knee bent, leaning against a wall and almost sitting on the ground. Whetstine told Rasmussen he would be detained in handcuffs until the police determined what had happened at the bank. Silvers and Sanchez then took hold of Rasmussen's arms in an effort to put his hands behind his back to handcuff him. Sanchez attached a handcuff to Rasmussen's right wrist. However, Rasmussen resisted the officers' efforts to handcuff him; he said something like " 'not behind my back,' " lunged forward, and brought his arms and hands down to his waist in front of him.
Whetstine told Rasmussen he would use the taser on Rasmussen if he did not stop resisting. Rasmussen did not stop resisting, so Whetstine removed the taser cartridge (containing the probes) from the taser and pressed the taser against one of Rasmussen's shoulders in a procedure known as a "drive stun." Rasmussen reacted by struggling more violently. Still in a crouch, Rasmussen kicked at Whetstine with his good leg, almost hitting Whetstine in the face with his foot. Rasmussen also got his right arm free and, with the handcuffs still attached to that wrist, began swinging at the officers. Silvers let go of Rasmussen's left arm out of concern he would be hit by Rasmussen's fist and the handcuffs.
The officers again warned Rasmussen to stop resisting, but he continued to thrash. Whetstine put the cartridge back into his taser and deployed it at Rasmussen. One of the probes hit Rasmussen in the torso. Rather than incapacitating Rasmussen, this only further enraged him. Rasmussen jumped up and, using his amputated leg and the wall of the bank for support, continued swinging and punching at the officers; he also swore and yelled at them.
Sanchez then deployed his taser at Rasmussen; the probes struck Rasmussen's right hand or arm, but did not incapacitate Rasmussen. Rasmussen said, " 'Is that all you've got?' " Rasmussen, without his crutches and using his amputated leg, advanced toward Sanchez, moving rapidly, "a lot faster than a walk." Sanchez backed quickly away from Rasmussen. While retreating, Sanchez sprayed pepper spray at Rasmussen, which had no effect. Some of the spray hit Silvers in the eye, and he turned and covered his face out of concern Rasmussen was about to attack him.
Seeing that Silvers was incapacitated by the pepper spray and that Sanchez had both hands full with his deployed taser and his pepper spray, Whetstine ran up to Rasmussen, got him in a headlock, and threw him to the ground. Rasmussen continued to struggle with Whetstine as they rolled around on the ground, and he continued yelling and cursing. When Whetstine got on top of Rasmussen, Silvers and Sanchez grabbed Rasmussen's arms and handcuffed Rasmussen's hands behind his back. Rasmussen continued physically resisting until he was handcuffed. At that point, Rasmussen and the officers were in the middle of Eighth Street, 10 to 20 feet from the bank.
All three police officers suffered minor scrapes and abrasions, and Silvers had to decontaminate his eye from the pepper spray. Rasmussen had an abrasion above his eye, scrapes on his back, and bleeding and abrasions on his amputated leg.
B. The Charges, Verdict and Sentence
As a result of the August 7, 2008 incident, Rasmussen was charged by information with: (1) making a criminal threat against bank manager Gonzales (count one; § 422); (2) resisting an executive officer (Sanchez) (count two; § 69); (3) drawing or exhibiting a deadly weapon (his crutch) in a threatening manner, "in the presence of another person" (count three; § 417, subd. (a)(1));*fn3 (4) assaulting a peace officer (Sanchez) (count four; § 241, subd. (c)); and (5) resisting or obstructing a peace officer (Whetstine) (count five; § 148, subd. (a)(1)).
The jury convicted Rasmussen on counts two through five. The jury was unable to reach a verdict as to count one, criminal threats, and the trial court declared a mistrial as to that count.
As noted above, the trial court sentenced Rasmussen to a prison term of three years on the felony charge of resisting an executive officer (count two). As to the three misdemeanors, the trial court imposed county jail terms of six months for exhibiting a deadly weapon (count three), one year for assault on a peace officer (count four), and one year for resisting an officer (count five). The court ordered that the jail terms for the misdemeanors run concurrently ...