Vincent J. O'Neill, Jr., Judge Superior Court County of Ventura (Super. Ct. No. 2010044795) (Super. Ct. No. 2007006324)
The opinion of the court was delivered by: Yegan, J.
CERTIFIED FOR PUBLICATION
The movies glorify instances of suspected criminals attempting to avoid detention and arrest. In the movies, they often succeed in the wake of inept police officers. But in real life, the suspects rarely succeed. Their conduct poses a danger to the police, the suspect, and innocent bystanders. Here, appellant's attempt to avoid apprehension did not succeed and resulted in injury to the officer. It could have easily been worse. Any attempt by a suspect to gain control of an officer's firearm is the acme of foolishness. Had appellant succeeded, responding officers would have had justifiable concern for their own safety and a gun battle could have easily erupted.
Jose Luis Rodriguez appeals from the judgment entered after a jury convicted him of deterring, preventing, or resisting an officer by force and violence. (Pen. Code, § 69.)*fn1 Appellant admitted two prior prison term enhancements (§ 667.5, subd. (b)) and was found in violation of probation in another case (case number 2007006324). The trial court sentenced him to four years state prison. He appeals contending that the evidence is insufficient to support the element of the offense that the officer was in the lawful performance of his duties when he detained appellant. We reject this contention but modify the judgment regarding a security fee, criminal conviction assessment a probation revocation fine. The judgment, as modified, is affirmed.
On the evening of December 16, 2010, appellant was a passenger in a vehicle that made an illegal turn in front of another motorist at Ojai and Santa Paula Streets. The driver quickly accelerated away with a police car in pursuit. The car slowed sufficiently so that appellant could "jump" out. He did so and ran away.
Officer J. Rothermel heard the radio broadcast concerning the suspect fleeing on foot. He saw appellant a minute later, half a block away, walking alone on Santa Paula Street. Officer Rothermel stopped, shined a spot light on appellant, and got out of the patrol car to speak to him. Appellant turned and ran. Officer Rothermel pursued appellant on foot, ordering him to stop. Appellant sprinted eastbound on Santa Paula Street, crossed the traffic lanes, reached into his pocket, and threw an item over a chain link fence.
Officer Rothermel attempted to subdue appellant. Appellant "tugged" on the officer's gun holster, attempting to take it. Appellant was ordered to stop resisting. He did not do so. Instead, he thrashed and kicked, causing Officer Rothermel to suffer lacerations to his right hand and shin. After a second officer arrived, appellant was subdued and arrested. Officers recovered a black digital scale that had a white powder residue consistent with methamphetamine.
Appellant testified that he ran because he had an outstanding warrant and a digital scale in his pocket. Appellant knew he was running from a police officer. He denied attempting to take the officer's gun.
After the jury returned a guilty verdict, appellant admitted two prior prison term enhancements and was found in violation of probation in case number 2007006324. The trial court sentenced appellant to four years state prison (two-year midterm plus two years on the prior prison term enhancements) and ordered appellant to pay $1,524 victim restitution (§ 1202.4, subd. (f)) and $200 restitution and parole revocation fines in each case (§§ 1202.4, subd. (b); 1202.45). In case number 20070006324, the trial court revoked probation, sentenced appellant to two years state prison for possession of narcotics (Health & Saf. Code, § 11377, subd. (a)) to run concurrent to the four-year sentence, and imposed a $570 drug program fee (Health & Saf. Code, § 11372.7, subd. (a)), and a $190 fine (Health & Saf. Code, § 11372.5).*fn2
Reasonable Suspicion to Detain
The crime of deterring, preventing, or resisting an officer by force and violence requires that the officer be engaged in the lawful performance of his duties. Here it was necessary to prove that Officer Rothermel had legal cause, i.e., a reasonable suspicion to detain appellant. (People v. Jenkins (2000) 22 Cal.4th 900, 1020; People v. Dolly (2007) 40 Cal.4th 458, 463.) "California cases hold that although the court, not the jury, usually decides whether police action was supported by legal cause, disputed facts bearing on the issue of legal cause must be submitted to the jury considering an engaged-in-duty element, ...