California Court of Appeal, Fourth District, First Division
PARTIAL PUBLICATION [*]]
APPEAL from a judgment of the Superior Court of San Diego County, Robert J. Kearney, Judge. Affirmed. (Super.Ct. No. SCN297907)
[165 Cal.Rptr.3d 682] Kurt David Hermansen, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Kristine A. Gutierrez and Lynn G. McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
BENKE, Acting P. J.
Penal Code section 69 makes it a crime to knowingly resist, with force or violence, an executive officer in the performance of his or her duties. In his principal argument on appeal, the defendant in this case, Fernando Bernal, argues that section 69 requires proof that the defendant used force against or on the executive officer. We reject this narrow interpretation of section 69.
Section 69 plainly covers a situation, such as the one disclosed in this record, where an officer's attempt to lawfully restrain the defendant was hampered by the defendant's quite forceful attempt to escape that restraint, including dragging the officer several feet down a bike path. Although, there is no evidence Bernal attempted to harm or otherwise touch the officer, there is ample proof that he used considerable force in attempting to escape from the restraint the officer was lawfully using on him; that force fully supports Bernal's conviction of violating section 69.
Bernal also contends the trial court was required to give a sua sponte instruction on the meaning of " force or violence" as used in section 69. Because these terms have no technical meaning peculiar to the law, no sua sponte instruction was required.
We also reject Bernal's contention the prosecutor was guilty of any prejudicial misconduct.
Accordingly, we affirm the judgment of conviction.
Three separate incidents, which occurred during the fall of 2011, gave rise to the complaint filed against Bernal:
A. September 21, 2011
In the early morning hours of September 21, 2011, Bernal, a confederate identified as Ulice Rivera, and an unidentified female confederate robbed Phillip Broadway as he was attempting to leave a friend's home in Escondido. The robbery [165 Cal.Rptr.3d ...