Superior Court Los Angeles County Super. Ct. No. BA337647, Jose I. Sandoval Judge.
Melanie K. Dorian, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson, Michael C. Keller and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Dewone T. Smith was charged with resisting an executive officer in the performance of his duties under Penal Code section 69 (hereafter section 69) and convicted by a jury. During the trial, the superior court denied defendant’s request to instruct the jury that it could instead convict him of the lesser offense of resisting a public officer under Penal Code section 148, subdivision (a)(1) (hereafter section 148(a)(1)), a crime that defendant contends is necessarily included within section 69. We hold that section 148(a)(1) was a necessarily included lesser offense of section 69 as alleged in the amended information. But because the record does not reveal substantial evidence that defendant violated section 148(a)(1) without also violating section 69, the trial court was not required to instruct on section 148(a)(1). Accordingly, we affirm defendant’s conviction.
On the morning of April 21, 2008, Los Angeles Deputy Sheriff Deloy Baker was working as a prowl deputy in Module 1700 of the Men’s Central Jail. Deputy Baker explained: “A prowl deputy just walks the tiers, ensures everyone’s safety, that everyone is alive, and also provide[s] security when need be.” Defendant was one of several inmates being moved from their cells in Module 1700 to another location. The inmates had gathered their belongings in large plastic trash bags, placed the bags in the center of the corridor, and lined up outside of their cells facing the wall. A deputy then began searching the inmates’ belongings. Defendant turned away from the wall and told the deputy not to lose any of his “paperwork, ” which he described as “important legal materials.” Deputy Baker instructed defendant not to talk and to face the wall. A few seconds later, defendant again turned away from the wall and told the deputy conducting the search not to lose his papers.
Defendant turned away from the wall a third time and said: “Don’t lose any of my fucking paperwork.” Deputy Baker testified that he “stepped up towards him... grabbed his left wrist with my left hand, put my right hand on the center of his back and assisted him to face the wall.” Deputy Baker continued: “As I was holding him, I felt his body become tense, he was breathing a lot heavier, his hands were clinching up, that’s when I gave him an order to put his — both of his hands behind his back so that way I could handcuff him.” Defendant did not comply and instead spun to his left. Deputy Baker “took him down” so he could more easily handcuff defendant, losing his balance in the process and falling to the floor next to defendant. Defendant punched Deputy Baker twice in the face: “He jumps back up really quick before I was able to get proper footing and hits me twice with his left hand on the right side of my face.” Deputy Baker was dazed but got to his feet and, with the help of other deputies, “wrestled [defendant] to the ground” and handcuffed him.
On September 11, 2008, defendant was incarcerated in the Twin Towers Correctional Facility in Los Angeles County. About 7 a.m., Los Angeles County Deputy Sheriff Mark Tadrous arrived in Module 141 as part of an Emergency Response Team (ERT). The ERT had been summoned because defendant refused to return to his cell.
Defendant was standing in the dayroom, yelling. Sergeant Chafen asked defendant to return to his cell and explained that defendant would be forced to do so if he refused. A deputy sheriff videotaped the incident, and the recording was played for the jury. An eight-page transcript of the audio portion of the recording was introduced into evidence. According to the transcript, Sergeant Chafen addressed defendant and said “now, the issue is — you don’t want to go back to your cell and you don’t want to go to court?” Defendant responded, “You’re right, I don’t, ” adding: “Because the simple fact is, your officers playin’ with me.... They’re playin’ games, they’re playing with my food. I’m not keeping — I’m not going to play with nobody.” The sergeant asked, “Is there anything we can do today to work this out?” Defendant responded, “Look man, all I just ask, I don’t fuck with nobody —.” Sergeant Chafen then said, “I’m going to ask you to go back to your cell, lock it down, otherwise you leave me no choice.” Defendant responded, “Well, I mean, I’m going to... I’m going to have to... I already let ACLU know.” The sergeant asked, “What is it you want to do?” Defendant said, “You gonna have to kill me man, because that’s going to get me up out of here, because I’m tired of....” Sergeant Chafen replied, “Well, we’re not going to kill you.” The following colloquy then took place:
“Sgt.: OK — do you realize what my option is?
“Smith: Well I understand, whoa whoa, what is your option? What is your option? Please please, let me know.
“Sgt.: I have to physically come in here and handcuff you and take you down to the hole.
“Smith: But one thing you have to know — I’m going to be physical. I’m not going to — Somebody’s going to get hurt. I’m not playin.”
Deputy Tadrous entered the dayroom holding a large shield in front of him. Defendant threw a bowl that contained a mixture of urine and feces that struck the deputy on his arm. After firing Tasers as well as foam and rubber projectiles, the ...