The opinion of the court was delivered by: Mauro , 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Mario Luis Oropeza of, among other things, attempting to deter an officer from performing any duty by means of threat or violence. Defendant now contends (1) the trial court erred in failing to instruct the jury on the lesser included offense of willfully resisting, delaying or obstructing a public officer in the discharge of his duties; (2) the trial court erred in failing to instruct the jury on the requisite specific intent to deter or prevent a police officer from performing his duty; and (3) the cumulative effect of the instructional errors resulted in prejudice.
We conclude (1) the trial court did not have a sua sponte duty to instruct on resisting an officer, because the crime of resisting an officer is not a lesser included offense of attempting to deter an officer; (2) the trial court properly instructed the jury on the requisite specific intent; and (3) because there was no instructional error, the claim of cumulative prejudice lacks merit.
We will affirm the judgment.
City of Redding Police Officer Nick Weaver saw a car drifting between two lanes and pulled the car over. Defendant was in the driver's seat and his brother Israel Oropeza was in the front passenger seat. Officer Weaver noticed that defendant's eyes were bloodshot, his speech was slurred, and he smelled of alcohol. When asked if he had been drinking, defendant said he drank two beers between noon and the time he was stopped, but he later admitted drinking six beers. Officer Weaver observed that defendant's gait was unsteady, he had difficulty standing up, and he swayed from side to side.
City of Redding Police Officer Brian Torum happened by the scene and stopped. Defendant told Officer Weaver he recently had back surgery but he could perform field sobriety tests. Nonetheless, defendant was argumentative and angry about having to perform the tests, prompting Officer Weaver to request further backup. City of Redding Police Officer Jacob Provencio responded to the call. Officer Provencio was assigned as a DUI (driving under the influence) specialist that night. Officers Weaver and Provencio wore their Redding Police Department uniforms and drove marked patrol cars.
After observing defendant's poor performance on the field sobriety tests, Officer Weaver informed defendant that he was under arrest for suspicion of driving under the influence. Officer Weaver instructed defendant to place his hands behind his back. But defendant threw his baseball cap on the ground, took a few steps toward Officer Provencio and "bladed" his stance like a boxer would assume while fighting.
Officer Weaver took out his baton. Officer Provencio pointed his Tazer at defendant because he did not know defendant's intention and defendant did not comply with Officer Weaver's instruction. At that point defendant complied with Officer Weaver's request to put his hands behind his back, and defendant was handcuffed and placed in the back of a patrol car.
While Officers Weaver and Torum evaluated whether defendant's brother was too intoxicated to leave the scene, Officer Provencio remained near the patrol car to complete paperwork. Defendant was yelling. When Officer Provencio turned on the dome light inside the patrol car so he could see what defendant was doing, defendant asked Officer Provencio in a menacing voice if he had a family. Defendant's demeanor was angry and threatening when he asked the question. Officer Provencio asked why defendant wanted to know, and defendant laughed and said at least twice, "Your family is dead. Your family is fucking dead." Officer Provencio opened the rear passenger door of the patrol car and asked defendant if he was threatening Officer Provencio's family. Defendant lunged at Officer Provencio. Using his hand, Officer Provencio grabbed the front of defendant's shirt and pushed defendant back in the patrol car. Defendant continued to say that Officer Provencio's family was dead.
When Officer Provencio activated his digital voice recorder, defendant mouthed the words that Officer Provencio's family was dead but did not say the words aloud. Officer Provencio asked defendant what he was saying. Defendant denied that he said anything and denied that he had threatened Officer Provencio's family. Defendant called Officer Provencio a "fucking faggot liar." A recording of what was captured on Officer Provencio's digital recorder was played at trial.
Officer Weaver subsequently opened the door of the patrol car to ask defendant whether he would submit to a breath or blood test. Defendant responded, "Fuck you, nigger." Defendant said Officer Weaver was "fucking ...