People v. Carrasco

• Decision Date: 06 June 2008
• Docket Number: No. B193002.,B193002.
• Citation: 163 Cal.App.4th 978,77 Cal. Rptr. 3d 912
• Court: California Court of Appeals Court of Appeals
• Parties: THE PEOPLE, Plaintiff and Respondent, v. ERNEST JOSEPH CARRASCO, Defendant and Appellant.

163 Cal.App.4th 978

77 Cal. Rptr. 3d 912

THE PEOPLE, Plaintiff and Respondent, v. ERNEST JOSEPH CARRASCO, Defendant and Appellant.

No. B193002.

Court of Appeals of California, Second District, Division Eight.

June 6, 2008.

Karyn H. Bucur, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Keith H. Borjon and Theresa A. Patterson, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

RUBIN, J.

INTRODUCTION

Defendant and appellant Ernest Joseph Carrasco (appellant) challenges his convictions of attempted arson and two counts of resisting an executive officer. He contends (1) there was insufficient evidence to support his conviction for attempted arson; (2) the trial court should have instructed the jury on the lesser included offense of resisting a peace officer; (3) the trial court abused its discretion in denying appellant posttrial access to juror information and by denying his motion to dismiss a "Three Strikes" allegation, remanded for resentencing. We affirm his conviction with a limited remand for sentencing.

BACKGROUND

One morning in May 2005, appellant approached the Pico Rivera sheriff's station and asked if anyone had change for a dollar. Repeating his question to Deputy Raul Macias, who was at the front desk, appellant asked, "Do you have change, bitch?" Macias told appellant he needed to leave the station, but appellant continued to press for change. After Macias again told him to move on, appellant slowly backed away from the door, continuing to act bizarrely and staring at Macias as if "trying to intimidate" him. About 30 seconds later, appellant returned holding a soda can in his left hand and straddling a bicycle with a duffle bag secured to its handlebars. Appellant opened the door to the sheriff's station, mouthed the words "fuck you" to Macias and then asked, "You have a fucking problem?" Macias walked from behind the counter toward appellant and told him to leave. Appellant took two steps back and placed his right hand inside the duffle bag.

Macias ordered appellant to remove his hand from the duffle bag two to three times, but appellant refused. Fearing for his safety, Macias reached for his service revolver, and appellant said, "Go ahead, bitch, fucking shoot me," a challenge he repeated more than once.

Detective Jim McGuffin came from the back of the station and grabbed appellant's waist. Appellant pulled his right hand from the duffle bag and tried to ride away on his bike, but McGuffin forced him to the ground. As Deputy Macias held on to appellant's torso, three other detectives attempted to control his arms. Ten to 15 other officers were present at the scene. Officers told appellant to relax and put his hands behind his back, but he refused. Continuing to struggle, he placed his hands underneath his body while "yelling, kicking, [and] cussing" and saying he would "kick [their] ass[es]." Deputy Macias said, "Stop resisting," but appellant continued to squirm and refused to give his right hand. Lieutenant Michael Rothans held appellant's shoulders and three or four times told him to relax and place his hands behind his back. Rothans then pepper sprayed appellant.

At that point, appellant complied and officers handcuffed him. Officers found a lighter in appellant's right hand. Calling the deputies "fucking assholes," appellant said, "This is bullshit. You can get your ass kicked." He also said, "I should have done it." (Italics added.) Inside his duffle bag was a one-gallon gasoline container that was approximately three-quarters full and two wet strips of cloth smelling of gasoline. Arson investigator Detective Irma Gonzales testified that if someone lit a lighter inside a duffle bag containing gas-soaked rags, the bag would catch fire. Detective Gonzales further testified that appellant "absolutely had the means and the components necessary to initiate a fire."

DISCUSSION

1. Substantial Evidence Supports Appellant's Conviction for Attempted Arson.

Appellant contends the evidence is insufficient to support his conviction for attempted arson because the evidence demonstrated only preparation. To resolve this issue, we review the record in the light most favorable to the judgment to decide whether substantial evidence exists so that a reasonable jury could have found the defendant guilty beyond a reasonable doubt. (People v. Ceja (1993) 4 Cal.4th 1134, 1138 [17 Cal.Rptr.2d 375, 847 P.2d 55], citing People v. Johnson (1980) 26 Cal.3d 557, 578 [162 Cal.Rptr. 431, 606 P.2d 738]; Jackson v. Virginia (1979) 443 U.S. 307, 319 [61 L.Ed.2d 560, 99 S.Ct. 2781].)

(1) Penal Code section 455 punishes "[a]ny person who willfully and maliciously attempts to set fire to or attempts to burn ... any ... property, or who commits any act preliminary thereto, or in furtherance thereof ...."¹ "`In order to establish an attempt, it must appear that the defendant had a specific intent to commit a crime and did a direct, unequivocal act toward that end; preparation alone is not enough, and some appreciable fragment of the crime must have been accomplished.'" (People v. Archibald (1958) 164 Cal.App.2d 629, 633 (Archibald).) In Archibald, the defendant was convicted of attempt to burn, and appealed on the ground of insufficient evidence to show "specific intent to commit a crime or of any act other than mere preparation." (Id. at p. 632.) The appellate court disagreed and held there was sufficient evidence for the jury to convict the defendant when (1) the record contained evidence to "sustain an inference that the defendant had stuffed a towel with gasoline upon it, together with a lighted cigar butt, as well as the crumpled papers, through the ventilator into the ladies' rest room with intent to set fire to the building," and (2) the defendant testified he believed his boss, "upon finding the papers, would think somebody was trying to burn his building down." (Id. at p. 633.)

(2) Here, as in Archibald, there is sufficient evidence by which a rational jury could have found appellant guilty beyond a reasonable doubt of committing "a direct, unequivocal act" toward "willfully and maliciously ... attempt[ing] to burn." (Archibald, supra, 164 Cal.App.2d at p. 633; see § 455.) Appellant was just inside the front doors of the Pico Rivera sheriff's station. With a lighter in his right hand, he reached inside a duffle bag containing two wet strips of cloth smelling of gasoline and a one-gallon gasoline container that was approximately three-quarters full. After he was arrested and deputies confiscated the lighter, appellant stated, "I should have done it." Furthermore, arson investigator Gonzales testified that appellant "absolutely had the means and the components necessary to initiate a fire." On these facts, a reasonable jury could have found appellant guilty of attempt to burn.

2. The Trial Court Properly Refused to Instruct the Jury on the Lesser Included Offense of Penal Code Section 148, Subdivision (a)

Appellant was convicted on two counts of resisting an executive officer in violation of section 69.² He contends the trial court should have instructed the jury on section 148, subdivision (a), as a lesser included offense of section 69. We recently held in People v. Lacefield (2007) 157 Cal.App.4th 249 (Lacefield), that in a proper case section 148, subdivision (a) is a lesser included offense of section 69, but we find no substantial evidence supported instructing on that lesser offense here.

(3) "California law has long provided that even absent a request, and over any party's objection, a trial court must instruct a criminal jury on any lesser offense `necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed." (People v. Birks (1998) 19 Cal.4th 108, 112 [77 Cal.Rptr.2d 848, 960 P.2d 1073].) "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." (Id. at p. 117.)

(4) Section 69 "`sets forth two separate ways in which an offense can be committed. The first is attempting by threats or violence to deter or prevent an officer from performing a duty imposed by law; the second is resisting by force or violence an officer in the performance of his or her duty.'"<sup>3</sup> (Lacefield, supra, 157 Cal.App.4th at p. 255, quoting In re Manuel G. (1997) 16 Cal.4th 805, 814 [66 Cal.Rptr.2d 701, 941 P.2d 880].) Those two ways of violating section 69 have been called "`attempting to deter'" and "`actually resisting an officer.'" (Lacefield, at p. 255, citing People v. Lopez (2005) 129 Cal.App.4th 1508, 1530 .) The first type of offense can be established by "`[a] threat, unaccompanied by any physical force'" and may involve either an officer's immediate or future performance of his duty. (Lacefield, at p. 255, citing Manuel G., at pp. 814, 817.) The second type of offense involves "`force or violence'" by the defendant against an officer engaged in his duties at the time of the defendant's resistance. (Lacefield, at p. 255.) We refer to them as "the first type of offense" and "the second type of offense," nomenclature Lacefield adopted from Manuel G. (Lacefield, at p. 255.)

Here, the accusatory pleading alleged both kinds of section 69 offenses, but the prosecutor chose to prosecute appellant under only the second prong: resisting an officer by force. The jury was therefore instructed that the People had to prove that "[1]. A person knowingly and unlawfully resisted an executive officer in the performance of his duties; and [¶] [2]. The resistance was accomplished by means of force or violence."

Section 148,...