People v. Esquibel

• Decision Date: 19 February 1992
• Docket Number: No. B053048,B053048
• Citation: 5 Cal.Rptr.2d 47,3 Cal.App.4th 850
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. William Casillas ESQUIBEL, Defendant and Appellant.

Page 47

5 Cal.Rptr.2d 47

3 Cal.App.4th 850

The PEOPLE, Plaintiff and Respondent, v. William Casillas ESQUIBEL, Defendant and Appellant.

No. B053048.

Court of Appeal, Second District, Division 7, California.

Feb. 19, 1992.

[3 Cal.App.4th 852] Harvey L. Goldhammer, Glendale, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Carol Wendelin Pollack, Acting Sr. Asst. Atty. Gen., Robert F. Katz, Supervising Deputy Atty. Gen., and Karen Chappelle, Deputy Atty. Gen., for plaintiff and respondent.

FRED WOODS, Associate Justice.

Appellant contends: (1) the trial court erred in failing to give a lesser included offense instruction; (2) a prior felony conviction enhancement is invalid (PEN.CODE, § 667.5¹, subd. (b)); and (3) a section 12022.1 enhancement is invalid. We find contentions one and two without merit but agree with contention three. Accordingly, we in part affirm and in part reverse the judgment.

PROCEDURAL AND FACTUAL BACKGROUND

On September 8, 1989, two Long Beach police officers saw appellant in possession of a .05 gram bindle of tar heroin and arrested him. Sometime thereafter appellant was released on bail.

On December 12, 1989, appellant was again arrested and about 2 a.m. brought to the Long Beach jail for routine processing. A few hours later, shortly before 5 a.m., Long Beach Security Officer William Edwards began the rounds of his wake up duty. He awoke the inmates, directed them to "pass their blankets out," and to move to the day-room. All complied except appellant. He refused to relinquish his blanket. Officer Edwards asked Security Officer Cruz to assist him. Appellant also refused Officer Cruz's requests that he relinquish his blanket. When Officer Edwards reached for the blanket appellant swung at him with gym shoes he was holding. He missed. When Officers Edwards and Cruz reached for appellant's elbows to walk him to a security cell, appellant swung his fist at Officer Edwards but again missed. The officers grabbed appellant, appellant resisted, and they all fell. Appellant kicked each officer. While the three of them were entangled a third security officer, Vielma, heard the commotion, jumped on the human pile, and assisted in the handcuffing of appellant. The altercation lasted a few minutes.

As a result of appellant's September 8, 1989, conduct, a one count information charging him with possession of heroin was filed on January 10, 1990 (case number NA000849).

Meanwhile, as a result of appellant's in-jail conduct on December 12, 1989, a second felony case, ² number NA001862, had been filed against appellant. On March 20, 1990, the two informations were consolidated and on April 3, 1990, an amended-consolidated information was filed. By that information appellant was charged with seven felonies: possession of heroin (Health & Saf.Code, § 11350, subd. (a); count I), three counts of resisting an executive officer (§ 69; counts II, IV and VI), and three counts of battery upon a custodial officer (§ 243.1; counts III, V, and VII). Additionally, two enhancements were alleged. One, a section 667.5, subdivision (b) enhancement, alleged appellant had been convicted of burglary in April 1985 and had served a prison term. The other, a section 12022.1 enhancement, alleged "as to count II-VII that at the time of the commission of the above offense [sic], [appellant] was released from custody on bail or on his own recognizance in case number NA 000849...."

Appellant pleaded not guilty to the charges and denied the enhancement allegations.

A jury convicted appellant of counts I (possession of heroin), II (resisting Officer Cruz), misdemeanor obstructing Officer As to the enhancements, we defer our description to the Discussion portion of this opinion.

Cruz (§ 148), IV (resisting Officer Edwards), and V (battery of Officer Edwards) but acquitted him of counts III (battery of Officer Cruz), VI (resisting Officer Vielma) and VII (battery of Officer Vielma).

DISCUSSION

1. Appellant contends the count II and IV resisting an executive officer convictions must be reversed because the trial court failed to instruct the jury that misdemeanor obstructing an officer (§ 148) was a lesser included offense.

Appellant's contention is not well taken.

The subject of possible lesser included offenses arose after the defense final argument but before the prosecution final argument. The trial court, outside the presence of the jury, stated: "Now, we conferred briefly in chambers as to that, and the court is of the opinion that perhaps the offenses of Penal Code section 242, battery, Penal Code section 240, simple assault, and Penal Code section 148, resisting or obstructing a police officer, might apply in this case. [p] Mr. Karey [defense counsel], is it your desire to have any of those instructions given?"

Defense counsel replied that he wanted the "148" instruction but objected to both misdemeanor assault and misdemeanor battery instructions. His decision, he told the court, was one of trial tactics.

The trial court agreed to give the section 148 instruction and asked defense counsel: "Do you wish to add anything to your argument, closing argument to the jury relating to this?" Defense counsel said "No."

The trial court then instructed the jury that "the offense of resisting, delaying or obstructing an officer is a lesser offense" to counts III, V, and VII (the felony battery counts) and if they had a reasonable doubt concerning those counts they could consider the lesser offense, which the trial court defined.

Thus, as to each security officer the jury could have found appellant guilty of section 69, a felony ("by ... threat or violence ... prevent[ing] an executive officer from performing any duty ... or ... by the use of force or violence [resisting] such officer ...."), section 243.1 a felony (battery against a custodial officer), or section 148, a misdemeanor (wilfully resisting, delaying, or obstructing a public officer).

It is clear the jury understood their options: they acquitted appellant of all charges with respect to Officer Vielma, the officer who belatedly joined the fray. As to Officer Cruz, the officer who assisted Officer Edwards, the jury acquitted appellant of battery but convicted him of felony resisting (§ 69) and misdemeanor obstructing (§ 148). As to Officer Edwards, the jury convicted appellant of both felony resisting (§ 69) and battery (§ 243.1).

Contrary to appellant's argument, it is of no significance the trial court characterized section 148 as a lesser offense included within section 243.1 rather than within section 69. However characterized, the jury was fairly presented with all three offenses and was free to find appellant's conduct violated all, some, or none of them.

We find no error.

2. Appellant contends the prior felony conviction enhancement (§ 667.5, subd. (b)) is invalid.

The nub of appellant's argument is bifurcation and untimely jury discharge. At the outset, before jury voir dire, the trial court asked defense counsel "what is your intent? Do you wish to bifurcate that issue?" and he said "yes." Next, still before jury voir dire, the trial court broached the subject of enhancement jury waiver. This colloquy occurred:

"THE COURT: And as far as the issue of bifurcation, then, Mr. Karey [defense counsel], at the present time it's your intent that, should the jury come back guilty, you wish the court to determine that? [p] I just ask because I've got to put a big note in the file 'DON'T DISCHARGE THE JURY', if we don't resolve that at this time.

"MR. KAREY: One moment, your honor.

"THE COURT: Sure.

"(Mr. Karey confers with the defendant.)

"MR. KAREY: Your honor, yes, defense wishes to bifurcate that issue, if necessary. If it needs to be decided at a later date, we would have a court trial on that issue." ³

Following the jury's verdicts regarding counts I-VII, and in accord with defense counsel's expressed wishes, the trial court discharged the jury without their having determined the subject enhancement. Thereafter appellant, on the record, was fully advised of his jury trial rights with respect to the enhancement. Appellant waived jury and admitted the subject allegation.

In reliance upon Hockersmith, Dee, and West appellant argues that discharging the jury before he personally waived jury, invalidates the enhancement on double jeopardy grounds. We disagree. As we explain, Hockersmith, Dee, and West are distinguishable.

In People v. Hockersmith (1990) 217 Cal.App.3d 968, 266 Cal.Rptr. 380 there was no motion to bifurcate, no jury waiver, no admission of the enhancement, and no proof hearing. Hockersmith is distinguishable.

Both People v. Dee (1990) 222 Cal.App.3d 760, 272 Cal.Rptr. 208 and People v. West (1990) 224 Cal.App.3d 1283, 274 Cal.Rptr. 524 are also, but more narrowly, distinguishable. ⁴ In neither, prior to jury discharge, did defense counsel represent there would be an enhancement jury waiver nor, in reliance upon that representation, did the trial court then discharge the jury.

Based upon our review of the cases, we conclude the following: (1) the right against double jeopardy, although fundamental, is not within the ambit of Boykin v. Alabama (1969) 395 U.S. 238 [89 S.Ct. 1709, 23 L.Ed.2d 274] and In re Tahl (1969) 1 Cal.3d 122 [81 Cal.Rptr. 577, 460 P.2d 449] and does not require personal waivers; (2) the right can be waived by consent to the discharge of a sworn jury; (3) counsel, on behalf of a defendant, can consent to discharge; and (4) the practical effect of counsel informing a trial judge that a defendant wants a court trial on the issue of the validity of a prior conviction which results in a jury's discharge is a waiver of the right of that defendant to later claim jeopardy attached. A defendant who is desirous of waiving a trial by jury can hardly be heard to complain when he gets his wish. (Cf. People v. Cooper (1991) ...