Resisting arrest requires that police are acting lawfully

People v. Southard (Cal. Ct. App., Mar. 24, 2021, No. A157236) 2021 WL 1114283, at *1

Summary: John Wesley Southard was involved in two traffic stops in  December 2018 and was charged with seven counts of obstructing a peace officer and forcible resistance of an officer—charges that require the People to prove the officers were acting lawfully—and one misdemeanor count of possession of methamphetamine. Southward was convicted on all charges and was sentenced to five years four months in prison.

On appeal, Southard argued that the trial court: (1) gave a special instruction based on language from an appellate opinion that acted to remove the lawful performance element of the resisting charges; (2) gave CALCRIM No. 250 that acted to remove the knowledge element of the charged offenses.The Court of Appeal agreed with these arguments and concluded  the errors were prejudicial. The Court reversed the convictions.

In reviewing a claim of instructional error, thenCourt must consider whether there is a reasonable likelihood the trial court’s instructions caused the jury to misapply the law in violation of the Constitution. (Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4, 112 S.Ct. 475, 116 L.Ed.2d 385; People v. Lucas (2014) 60 Cal.4th 153, 287, 177 Cal.Rptr.3d 378, 333 P.3d 587; People v. Frye (1998) 18 Cal.4th 894, 957, 77 Cal.Rptr.2d 25, 959 P.2d 183.)

Jury instructions requiring proof officers were lawfully performing their duties at the time of the arrests

All seven of the obstruction and resisting arrest counts required the People to prove beyond a reasonable doubt that the officers were lawfully performing their duties at the time defendant resisted. The trial court properly gave CALCRIM No. 2652 for misdemeanor resisting arrest and CALCRIM No. 2656 for resistance by force, both of which require the People prove that “when the defendant acted, the officer was performing his lawful duty,” and both of which go on to instruct that “[a] peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties. Instruction 2670 explains when an arrest or detention is unlawful or when force is unreasonable or excessive.”

The  jury was also instructed with CALCRIM No. 2670, that “a peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting or detaining someone or using unreasonable or excessive force in his or her duties.”

Improper jury instruction given

“An individual’s decision to commit a new and distinct crime, even if made during or immediately after an unlawful detention, is an intervening act sufficient to purge the ‘taint’ of a theoretically illegal detention. If you believe that the defendant was acting lawfully and that the police detained him unlawfully, a defendant’s subsequent conduct in obstructing, resisting, or delaying the officers, if it occurred, can be an independent act that dissipated the taint from the initial unlawful seizure.

If there was unlawful detention, you may conclude that a choice to flee or to resist arrest are independent intervening acts sufficiently distinct from an illegal detention to dissipate the taint of an illegal detention.”

This special instruction  undermined Southerd’s defense that he was unlawfully stopped during the first incident and unlawfully beaten during the second, and it eliminated one of the elements of the crime the People were required to prove—lawful activity by the officers.

Lawfulness of officer’s conduct is an essential element of resisting a peace officer

Our Supreme Court has observed, in order to be “perform[ing] a lawful duty,” the officer must be acting lawfully. (In re Manuel G. (1997) 16 Cal.4th 805, 818, 66 Cal.Rptr.2d 701, 941 P.2d 880; People v. Gonzalez (1990) 51 Cal.3d 1179, 1217, 275 Cal.Rptr. 729, 800 P.2d 1159.) “The lawfulness of the officer’s conduct is an essential element of the offense of resisting … a peace officer.” (In re Chase C. (2015) 243 Cal.App.4th 107, 115, 196 Cal.Rptr.3d 381.)

If the arrest is unlawful, the defendant may not be convicted of violating of section 69 or section 148. Despite that, the instruction here acted to revive any unlawful conduct by the officers, to “dissipate the taint of it”—to “purge” it. It was a plain misstatement of law and error.

Danger of using special jury instructions adapted from case law

In People v. Hunter (2011) 202 Cal.App.4th 261, 277–278, 134 Cal.Rptr.3d 673, where  Presiding Justice Kline distilled the criticism this way: “The challenged instruction was given in this case because, as in People v. Colantuono (1994) 7 Cal.4th 206, 26 Cal.Rptr.2d 908, 865 P.2d 704, the trial judge much too quickly assumed ‘that a correct statement of substantive law will provide a sound basis for charging the jury.’ (Id. at p. 221, fn. 13, 26 Cal.Rptr.2d 908, 865 P.2d 704; accord People v. Adams (1987) 196 Cal.App.3d 201, 204–205, 241 Cal.Rptr. 684 [‘Language in an appellate court opinion which may be a good statement of law or of the reasoning of the appellate court does not necessarily make a good jury instruction’]; see People v. Smith (1989) 214 Cal.App.3d 904, 912–913, 263 Cal.Rptr. 155; People v. Ramirez (1974) 40 Cal.App.3d 347, 355, 114 Cal.Rptr. 916; People v. Hudgins (1967) 252 Cal.App.2d 174, 183, 60 Cal.Rptr. 176; People v. Odom (1937) 19 Cal.App.2d 641, 649, 66 P.2d 206.) But, as this case shows, ‘[t]he discussion in an appellate decision is directed to the issue presented. The reviewing court generally does not contemplate a subsequent transmutation of its words into jury instructions and hence does not choose them with that end in mind.’ (People v. Colantuono, at p. 221, fn. 13, 26 Cal.Rptr.2d 908, 865 P.2d 704.) For this reason, our Supreme Court has strongly cautioned ‘that when evaluating special instructions, trial courts carefully consider whether such derivative application is consistent with their original usage.’ (Ibid.) The trial judge in this case neglected to make that necessary inquiry.”

The Instruction on Mental State Was Error

All eight counts with which defendant was charged had an element dealing with his mental state. As to the three resisting with force counts, the jury was told that the People had to prove beyond a reasonable doubt that defendant “knew the executive officer was performing his duty.” As to the four resisting without force counts, the jury was instructed the People must prove defendant “knew, or reasonably should have known, that the peace officer was a peace officer performing or attempting to perform his duties.” And as to the possession of methamphetamine count, the jury was instructed that the People had to prove beyond a reasonable doubt that defendant “knew of [the drug’s] presence” and “knew of the substance’s nature or character as a controlled substance.”

Despite that, the jury was then given another, and contradictory, instruction, CALCRIM No. 250, which instructed the jury it could convict defendant on all counts solely if it found “he intentionally [did] a prohibited act; however, it is not required that [he] intended to break the law”—an instruction given despite the express boldface warning in the use notes that “[T]his instruction must not be used if the crime requires a specific mental state, such as knowledge …, even if the crime is classified as a general intent offense.” (Bench Notes to CALCRIM No. 250.)

Defendant’s mental state was at issue in the case and the errors were prejudicial.