(Super. Ct. No. 11SCR07058)
The opinion of the court was delivered by: Raye , P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury convicted defendant Billy Henderson of felony evading (Veh. Code, § 2800.2, subd. (a); count I). The jury acquitted defendant of two counts of felony resisting with force or violence (Pen. Code, § 69; counts II and III) but convicted him of two counts of the lesser included offense of misdemeanor resisting arrest (Pen. Code, § 148, subd. (a)(1)). In bifurcated proceedings, defendant admitted a strike prior and four prior prison terms.
The court sentenced defendant to state prison for an aggregate term of nine years.
Defendant appeals. He contends (1) the trial court prejudicially erred in failing to instruct the jury on unanimity in connection with the two felony/misdemeanor resisting counts, and (2) the trial court erred in failing to stay the sentence on one of the two misdemeanor resisting counts. We reject both contentions and will affirm the judgment.
Defendant does not raise an issue that requires a detailed recitation of the facts underlying the felony evading offense. Suffice it to say that defendant led officers on a high-speed chase and committed traffic violations along the way. The chase ended when defendant crashed after an "S" curve in the road. Defendant crawled out of the car, and was handcuffed behind his back and placed in a patrol car. During the officers' accident investigation, defendant wanted to get out of the patrol car to urinate, but when told he would be tased if he tried to run, he decided otherwise.
California Highway Patrol Officers Arnulfo Lazo and Robert Gardner transported defendant to a hospital for a medical clearance before taking him to jail. According to Officer Lazo, when they removed defendant from the car, he tried to break free and run, but they grabbed him and used "pain compliance" to escort him inside the hospital, where he started yelling. According to Officer Gardner, defendant was compliant from the car to the hospital.
Inside the emergency room, the officers had defendant sit in a chair. After a short time, defendant got up and yelled for "help" and a "witness." He yelled for at least a minute, refused to sit down, and tried to leave the hospital. The officers pulled him from the door and forced him to the ground. Defendant struggled and hit his head on the doorjamb, causing his head to bleed. The officers tried to hold him, but he kicked and flailed even with his hands still handcuffed behind his back. Officer Gardner held defendant's legs. Defendant tried to kick Officer Gardner several times. Officer Gardner tied defendant's shoelaces together and radioed for backup. Meanwhile, Officer Lazo held defendant's torso and a nurse held defendant's head. Defendant tried to bite Officer Lazo's arms. Defendant fought for a long time. Other officers arrived and put defendant in leg restraints. Defendant continued to yell that he needed a witness. Five officers and the nurse put defendant face down on a gurney. After defendant was medically cleared, they transported him to and carried him inside the jail.
Citing the evidence that he resisted arrest in both the parking lot of the hospital and inside the hospital, defendant contends the trial court was required to instruct the jury on unanimity. The People respond that defendant's resistance was a continuous course of conduct. We conclude that the trial court did ...