People v. Belmares

• Decision Date: 06 February 2003
• Docket Number: No. F039060.,F039060.
• Citation: 130 Cal.Rptr.2d 400,106 Cal.App.4th 19
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Edward BELMARES, Defendant and Appellant.

130 Cal.Rptr.2d 400

106 Cal.App.4th 19

The PEOPLE, Plaintiff and Respondent, v. Edward BELMARES, Defendant and Appellant.

No. F039060.

Court of Appeal, Fifth District.

February 6, 2003.

Review Denied April 30, 2003.^*

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stan Cross and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

GOMES, J.

FACTUAL AND PROCEDURAL HISTORY

After starting to argue and fight with two young men, Edward Belmares (convicted herein as Edward Balmares) hit one on the head with a rock. Two deputy sheriffs who struggled to restrain him pepper-sprayed him, took him to the ground, and secured his legs to his handcuffs before he finally stopped kicking and yelling.¹ A jury found him guilty of assault with a deadly weapon, deterring an executive officer from performing a lawful duty (deterring), and resisting a peace officer in the discharge of an official duty (resisting). (Pen.Code, §§ 245, subd. (a)(1), 69, 148, subd. (a)(1).²) At a bifurcated trial, the jury found allegations of two prior prison terms true. (§§ 667.5, subd. (b), 969b.³)

ISSUES ON APPEAL

On appeal, Belmares raises two arguments. First, on the premise that resisting is a lesser included offense of deterring, he argues the judgment violates the rule against grounding multiple convictions in necessarily included offenses. (§ 954.) Second, on the premise that he had a constitutional right to a jury trial on the identity of the person in the section 969b packet, he argues the court's instructing the jury without finding he was that person violated due process and section 1025. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, §§ 15, 16.) We will affirm the judgment.

DISCUSSION

1. Multiple Convictions for Deterring an Officer and Resisting an Officer

On the premise that resisting is a lesser included offense of deterring, Belmares argues the judgment violates the rule against grounding multiple convictions in necessarily included offenses. The Attorney General argues the contrary.

The general rule permitting multiple convictions arises from section 954.⁴ Despite the statute's "seemingly absolute language" permitting conviction "`of any number of the offenses charged,'" an exception to the rule exists. (People v. Ortega (1998) 19 Cal.4th 686, 692, 80 Cal. Rptr.2d 489, 968 P.2d 48.) The California Supreme Court "has long held that multiple convictions may not be based on necessarily included offenses. [Citations.]" (People v. Pearson (1986) 42 Cal.3d 351, 355, 228 Cal.Rptr. 509, 721 P.2d 595.) "The definition of a lesser necessarily included offense is technical and relatively clear. Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108, 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073, italics added, citing People v. Lohbauer (1981) 29 Cal.3d 364, 368-369, 173 Cal.Rptr. 453, 627 P.2d 183; People v. Marshall (1957) 48 Cal.2d 394, 405-407, 309 P.2d 456.) We will analyze first the statutory elements of the two offenses and then the pleadings in the case at bar.

Analysis of the statutory elements of the two offenses shows resisting requires commission of the crime at the time of a peace officer's discharge or attempted discharge of a duty of his or her office or employment. (§ 148, subd. (a)(1).⁵) A CALJIC instruction so defines that temporal element:

"In order to prove this crime, each of the following elements must be proved:

"1. A person willfully resisted, delayed, or obstructed a [peace officer] [public officer] [(other)];

"2. At the time the [peace officer] [public officer] [(other)] was engaged in the performance of [his][her] duties; and "3. The person who willfully resisted, delayed, or obstructed knew or reasonably should have known that:

"(a) the other person was a [peace officer] [public officer] [(other)];

"(b) and was engaged in the performance of [his][her] duties." (CALJIC No. 16.102 (1998 rev.) (July 2002 pocket pt.) italics added.)

Deterring, on the other hand, has disjunctive temporal elements, one of which is congruent with, the other of which is inconsistent with, the temporal element of resisting. (§ 69.⁶) "[T]he plain language of the statute encompasses attempts to deter either an officer's immediate performance of a duty imposed by law or the officer's performance of such a duty at some time in the future." (In Re Manuel G. (1997) 16 Cal.4th 805, 817, 66 Cal. Rptr.2d 701, 941 P.2d 880; accord, com. to CALJIC No. 7.50 (July 2002 pocket pt.) p. 89.) A CALJIC instruction so defines those disjunctive temporal elements:

"In order to prove this crime, each of the following elements must be proved:

"[1. A person willfully [and unlawfully] attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and

"2. The attempt was accomplished by means of any threat or violence.]

"[1. A person knowingly [and unlawfully] resisted an executive officer in the performance of his or her duty; and

"2. The resistance was accomplished by means of force or violence.]" (CALJIC No. 7.50 (6th ed.1996).)

By the statutory elements test, then, we hold resisting is not a lesser included offense of deterring since one can deter an officer's duty in the future (§ 69) without resisting the officer's discharge or attempted discharge of a duty at that time (§ 148, subd. (a)(1)). (See People v. Birks, supra, 19 Cal.4th at p. 117, 77 Cal.Rptr.2d 848, 960 P.2d 1073.) We turn, then, to the pleadings test.

The information shows the deterring count charged the following:

"On or about April 18, 2001, Edward Balmares [sic], did willfully and unlawfully attempt by means of threats or violence to deter or prevent [each of two peace officers], who was then and there an executive officer, from performing a duty imposed upon such officer by law, or did knowingly resist by the use of force or violence said executive officer in the performance of his/her duty, in violation of Penal Code section 69, a felony."

The information shows the resisting count charged the following:

"On or about April 18, 2001, Edward Balmares [sic], did willfully and unlawfully resist, delay, or obstruct a peace officer who was then and there attempting to or discharging the duty of his/her office or employment, in violation of Penal Code section 148, a misdemeanor."

Both the deterring count and the resisting count use the word "resist," as do the respective statutes. (§§ 69, 148, subd. (a)(1).) Besides that word, the deterring count uses the words "deter" and "prevent" and the resisting count uses the words "delay" and "obstruct," as do the respective statutes. (Compare § 69 with § 148, subd. (a)(1).) Since those four words in the pleadings track precisely the identical four words in the Legislature's enactment of the statutes from which the pleadings derive, we turn to traditional principles of statutory construction to analyze the pleadings. The first step in that analysis "is to focus on the words used by the Legislature in order to determine their traditional and plain meaning." (Mercer v. Department of Motor Vehicles (1991) 53 Cal.3d 753, 763, 280 Cal.Rptr. 745, 809 P.2d 404.) We put aside the sole word in common—"resist"—and seek the meanings of the other four words.

In the context of the deterring count, the meaning of "deter" includes "turn aside, discourage, or prevent from acting by fear or consideration of dangerous, difficult, or unpleasant attendant circumstances" and "inhibit." (Webster's 3d New Internat. Diet. (1986) p. 616.) In the same context, the meaning of "prevent" includes "deprive of power or hope of acting, operating, or succeeding in a purpose," "frustrate," "circumvent," "keep from happening or existing," "hinder," and "stop." (Id. at p. 1798.)

In the context of the resisting count, the meaning of "delay" includes "put off," "prolong the time of or before," "postpone," "defer," "stop, detain, or hinder for a time," "check the motion of, lessen the progress of, or slow the time of arrival of," "cause to be slower or to occur more slowly than normal," and "retard." (Webster's 3d New Internat. Diet., supra, p. 595.) In the same context, the meaning of "obstruct" is "be or come in the way of," "hinder from passing, action, or operation," "impede," "retard," "shut out," and "place obstacles in the way." (Id. at p. 1559.)

The only word common to the definitions of any of those four words is "stop," which appears in the definition of "prevent" in the deterring count and in the definition of "delay" in the resisting count. (Webster's 3d New Internat. Diet., supra, pp. 595, 1798.) The implications are quite different, however. In the definition of the word "prevent" in the deterring count, "stop" stands alone. (Id. at p. 1798.) In the definition of "delay" in the resisting count, on the other hand, "stop" appears in only the limited sense of "stop, detain, or hinder for a time." (Id. at p. 595, italics added.) No synonym of either of the words "deter" and "prevent" in the deterring count is the same as any synonym of either of the words "delay" and "obstruct" in the resisting count. (Id. at pp. 595, 616, 1559, 1798.)

To generalize, the meanings of the words "deter" and "prevent" in the deterring count and of the words "delay" and "obstruct" in the resisting count have noteworthy differences. The former two tend to connote a decisive, definite, or indubitable quality that contrasts with the provisional, temporary, or tentative note the latter two tend to strike. That none of those four words...