People v. Christopher

• Court: California Court of Appeals
• Writing for the Court: Nares
• Citation: People v. Christopher, 40 Cal.Rptr.3d 615, 137 Cal.App.4th 418 (Cal. App. 2006)
• Decision Date: 16 February 2006
• Docket Number: No. D045112.,D045112.
• Parties: The PEOPLE, Plaintiff and Respondent, v. Carrea CHRISTOPHER, Jr., Defendant and Appellant.

40 Cal.Rptr.3d 615

137 Cal.App.4th 418

The PEOPLE, Plaintiff and Respondent, v. Carrea CHRISTOPHER, Jr., Defendant and Appellant.

No. D045112.

Court of Appeal, Fourth District, Division 1.

February 16, 2006.

Certified for Partial Publication.^*

Review Denied June 14, 2006.

Gregory Cilli, under appointment by the Court of Appeal, Julian, for Defendant and Appellant.

Bill Lockyer, Attorney General, Randall R. Anderson, Chief Assistant Attorney

General, Gary W. Schons, Assistant Attorney General, James M. Dutton and Randall D. Einhorn, Deputy Attorneys General, for Plaintiff and Respondent.

NARES, J.

Carrea Christopher, Jr.¹ (Christopher) appeals a judgment of conviction after a jury found him guilty of second degree burglary (Pen.Code,² § 459 — count 1); petty theft with a prior conviction (§ 484 — count 2); and resisting, delaying or obstructing a peace officer (§ 148, subd. (a)(1) (hereafter section 148(a)(1)) — count 3), a misdemeanor. Prior to trial, the court had received Christopher's admission of allegations in the information that he had suffered a prior burglary conviction in June 2001 and had a prison prior (§§ 667.5, subd. (b) & 668).

The court sentenced Christopher to the middle term of two years for the burglary conviction (count 1) and to a consecutive one-year term for the prison prior, resulting in an aggregate term of three years in state prison. The court imposed a concurrent middle term of two years for the petty theft conviction (count 2), but stayed that sentence under section 654. As to count 3 (§ 148(a)(1)), the court imposed a concurrent sentence of 162 days, which Christopher had already served.

In his appellant's opening brief, Christopher contends (1) his conviction of resisting, obstructing or delaying a peace officer in violation of section 148(a)(1) (count 3) should be reversed because the court prejudicially erred by instructing the jury with an "impermissible mandatory conclusive presumption" that giving a false name to a peace officer constitutes "willfully resisting, obstructing or delaying" a peace officer; and (2) his conviction of that offense should also be reversed because there is insufficient evidence to show he willfully resisted, delayed or obstructed the police in the performance of their duties. In his appellant's supplemental brief,³ Christopher also maintains (3) that he should not have been convicted, and the court should not have instructed the jury that it could convict him, of violating section 148(a)(1) because the only alleged conduct by Christopher offered by the prosecution on that charge — giving a false name to a peace officer — would support a conviction under section 148.9, subdivision (a) (hereafter section 148.9(a)) (discussed, post), and thus the language in 148(a)(1) itself barred his conviction of resisting, obstructing or delaying a peace officer.

We conclude that (1) Christopher forfeited his claim of instructional error; (2) substantial evidence supports the jury's finding that he resisted, delayed or obstructed a peace officer by falsely identifying himself as Donald Christopher Brown; (3) his claim that his conviction of violating section 148(a)(1) is barred on the ground that "other punishment" was prescribed by section 148.9(a), is unavailing. Accordingly, we affirm the judgment.

FACTUAL BACKGROUND

A. The People's Case

In June 2004 Carmelita Carter, a loss prevention employee at J.C. Penney's department store in San Diego, was monitoring the sales floor with closed-circuit television cameras in the security office for the purpose of preventing shoplifting. Carter observed Christopher enter the men's department carrying a tote bag and a backpack. When she observed Christopher place the tote bag behind a shelf, she became suspicious and notified her supervisor, Joseph Hawley, who was also in the security office.

While Hawley was walking to the men's department, Carter saw Christopher select three pairs of jeans and two shirts, wrap the jeans in the shirts, and place the clothing on a shelf. Christopher then picked out two more shirts, grabbed the previously wrapped clothing, and went into the men's fitting room area wearing his backpack. Carter observed Christopher leave the fitting rooms wearing his backpack, which was full and bulging out, but carrying no clothes in his hands.

Hawley testified he followed Christopher into the fitting room area and waited in a nearby stall for Christopher to leave. He saw Christopher leave. Hawley went into the stall that Christopher had been in and found no clothing, but found three clothing security ink tags that had been separated into a total of six pieces. Hawley then followed Christopher, who picked up his tote bag and left the store without stopping at a cash register.

Hawley and another store employee stopped Christopher outside the store. Hawley identified himself and asked Christopher to return to the store. After a brief struggle, Christopher complied and allowed Hawley and the other employee to escort him into the store. As they approached the security office, Christopher tried to run out the door, but he was stopped by Hawley and other employees. After Christopher was brought into the security office, the four shirts and three pairs of jeans, as well as a pair of pliers and a pair of wire cutters, were found in his backpack.

When the police arrived on the scene and took custody of Christopher in the security office, Christopher falsely identified himself to the officers as Donald Christopher Brown. Christopher told them he had no identification on his person. The police transported Christopher to police headquarters. During this time period, Christopher never identified himself by any name other than Donald Christopher Brown. At police headquarters, the police took Christopher's fingerprints, ran the prints through a computer system, and determined he went by the name of Christopher Carrea, Jr.⁴

B. The Defense

Upon direct examination by Christopher, who represented himself at trial, his fiancée Barbara Brown testified she saw Christopher put a couple of shirts, a couple of pairs of pants and some tools in his backpack before he left home on the morning of the incident. She stated he told her he was taking one of the shirts back because it was too small.

Defense investigators Alex Amigo and Gerry McMurray testified they went to the J.C. Penney's department store to investigate, but the store did not permit them to take pictures.

DISCUSSION

I

INSTRUCTIONAL ERROR (COUNT 3)

Christopher first contends his misdemeanor conviction of resisting, obstructing or delaying a peace officer (count 3) should be reversed because the court prejudicially erred by instructing the jury with an "impermissible mandatory conclusive presumption" that giving a false name to a peace officer constitutes "willfully resisting, obstructing or delaying" the officer within the meaning of section 148(a)(1).⁵ Christopher maintains that by inserting the phrase "in that the defendant identified himself to the police officer by giving a false name" in the modified version of CALJIC No. 16.102 (discussed, post) it gave to the jury, the court impermissibly lightened the prosecution's burden of proof by removing from the jury's consideration the essential statutory element of "willfully resist[ing], delay[ing], or obstruct[ing]" a peace officer set forth in section 148(a)(1) in the event the jury found that he had given a false name to the police. He further asserts that "[i]n effect, by instructing with modified CALJIC No. 16.102, the [court] told the jury not to consider any other evidence pertaining to the issue [of] whether [Christopher] `willfully [resisted], delayed, or obstructed' the police officers from their duties."

The People argue that Christopher waived⁶ his claim of instructional error by accepting the modified version of CALJIC No. 16.102 and that, in any event, the court properly instructed the jury. We conclude that Christopher forfeited his claim of instructional error.

A. Background

1. Modified CALJIC No. 16.102

The court instructed the jury, without objection by Christopher, on the elements of the crime of resisting, delaying or obstructing a peace officer (§ 148(a)(1)) by giving the following modified version of CALJIC No. 16.102:

"[Christopher] is accused in count 3 of having violated [section 148(a)(1)]. [¶] Every person who willfully resists, delays or obstructs any peace officer in the performance of his duties, and who knows, or reasonably should know that the other person is a peace officer engaged in the performance of his duties, is guilty of a violation of [section 148(a)(1)]. [¶] In order to prove the crime charged in count 3, the prosecution must prove beyond a reasonable doubt each of the following elements: [¶] One, on or about June the 1st, 2004, [Christopher] willfully resisted, delayed or obstructed a peace officer in that [he] identified himself to the police officer by giving a false name. [¶] Two, at the time the peace officer was engaged in the performance of his duties. Three, [Christopher] knew, or reasonably should have known, that [(a)] the other person was a peace officer, and (b), was engaged in the performance of his duties." (Italics added.)

2. The jury's note seeking clarification of the jury instruction

During deliberations, the jury sent a note to the court asking, "Does willfully giving a false name to a peace officer constitute `obstruction' as defined by [section 148(a)(1)]?" The court provided to Christopher and the prosecutor the court's proposed response to the jury's question. The proposed response indicated that the question of whether Christopher's identifying himself by giving a false name constituted resisting, delaying or obstructing a peace officer within the meaning of section 148(a)(1) was a question for the jury to decide. Specifically, the court's proposed response stated:

"It is for the jury to decide whether the prosecution has...