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Court of Appeal, Fourth District, Division 2, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Joe Mariano QUIROZ, Defendant and Appellant.

No. E005041.

Decided: August 31, 1989

Victoria Sleeth, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Arnold O. Overoye, Acting Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Pat Zahoropoulos, Supervising Deputy Atty. Gen., and Jay M. Bloom, Deputy Atty. Gen., for plaintiff and respondent.


Defendant was found guilty by a jury of having violated Penal Code section 69.2  The trial court sentenced the defendant to state prison for a middle term of two years with respect to the section 69 conviction and, based on an admission by the defendant, imposed an additional, consecutive term of two years as a Penal Code section 12022.1 (“released from custody on a primary offense”) enhancement to the sentence.

Defendant filed a timely notice of appeal.3  The only issues raised on appeal by defendant concern errors alleged to have been committed by the trial court in instructing the jury on the section 69 charge.


During the late afternoon hours of February 14, 1987, Officers Darryl Hurt (Hurt) and Duane Beckman (Beckman) of the Riverside Police Department were on vehicular patrol in the vicinity of Villegas Park, a city park located in the Casa Blanca area of Riverside.

While patrolling one of Villegas Park's parking lots, Beckman saw a private car start to back out of a parking space and into the line of travel of the officers' marked patrol car.   Beckman slowed the patrol car.   The driver of the private car stopped, got out of his car and quickly walked away—leaving his car approximately four feet out from the parking lot curb line and with the engine running.   Beckman pulled the patrol car in behind the private car and stopped.

As the driver of the private car walked away, both officers observed what appeared to be a beer bottle in the driver's hand.   Hurt recognized the driver as one John Garcia (Garcia).   Hurt got out of the patrol car to question Garcia concerning his somewhat suspicious behavior and his apparent violation of the City of Riverside's prohibition against the possession of alcoholic beverages in city parks.

As Hurt followed Garcia, Beckman noticed that a passenger in the private car was making motions which suggested that the passenger was trying to hide something.   Beckman approached the private car, asked the passenger to place his hands where he (Beckman) could see them and then asked the passenger to turn the car's engine off.   When the engine was turned off, the car rolled forward to the parking lot curb line and scraped up onto the curb itself.

In the meantime, Hurt had followed Garcia to the entrance of a recreation room located in the park.   This entrance was approximately 20 or 30 feet from the patrol car.   Hurt entered the recreation room and saw Garcia with a beer bottle in his hand.   There were a number of other people, adults and children, in the recreation room as well.   Several of these other adults also had beer bottles in their possession.  (In fact, Hurt had happened upon the last few moments of a birthday party being given by one of these other adults for his daughter.)

Hurt asked Garcia to come outside of the recreation room.   Garcia did not immediately comply, so Hurt placed his hand on Garcia's shoulder and pushed him approximately three feet outside of the entrance to the recreation room.   Hurt then took his hand off of Garcia's shoulder.   It was at this moment that Garcia's car scraped up onto the parking lot curb.   Beckman heard Garcia call out:  “What did you do to my car?   You smashed my windshield.”  (Beckman and Hurt both denied that Beckman ever did anything to the windshield on Garcia's car.)

Hurt found himself facing a group of approximately six adult males who were angered by Garcia's plight and the asserted damage to Garcia's car.   In Hurt's words:  “They appeared to be agitated.   They wanted to know what was going on.   They didn't want me to take Mr. Garcia[;]” and “They were just basically telling me that I had no right to be there.   I wasn't going to take Mr. Garcia to jail, and in general I should leave the area.”   Among these confrontational men was the defendant.

Hurt explained to the surrounding group that he was trying to conduct an investigation and that he would leave as soon as he was finished.   Hurt took Garcia by the arm and told him that they were going to walk down to the patrol car.   Garcia pulled away.   Hurt again grabbed Garcia—and again Garcia pulled free.   Hurt sensed that the mood of the surrounding group had turned decidely uglier.   Consequently, Hurt started to walk back to the patrol car without Garcia.

At this moment, Beckman joined the crowd outside the recreation room.   Having seen Garcia pull away from Hurt, Beckman stepped forward, grabbed Garcia by the arm and began to walk Garcia toward the patrol car.   The surrounding group of men continued to complain loudly and angrily about the officers' conduct;  however, at no time did any of the men place themselves in the way of Beckman as he escorted Garcia away.

The defendant stepped forward from the crowd and advanced toward the officers.   He was irate and started shouting that the officers weren't going to take Garcia anywhere.   Beckman released Garcia and turned to face the defendant.   Both of the officers told the defendant that he would be arrested if he did not back away.   The defendant swore directly at Beckman.   Beckman again told the defendant to back away or face arrest.   The defendant assumed a boxing stance and belligerently challenged Beckman to arrest him.

Beckman moved forward to grab the defendant and take him into custody.   The defendant hit Beckman twice in the face with a closed fist.   Beckman then “went after” the defendant with a nightstick.   Beckman and the defendant became locked in a struggle, and the entire situation quickly deteriorated into a general melee.

Hurt managed to pull both Beckman and the defendant back into the recreation room.   While Beckman used his nightstick to keep anyone from following the officers into the room, Hurt tried to handcuff the defendant and place him under arrest.   The defendant struggled to free himself from Hurt's grasp and tried unsuccessfully to escape through a back door to the recreation room.   Additional police officers arrived at the scene of the brawl, and the confrontation came to an end.

By amended information, the defendant was charged with a single violation of section 69.   However, the information's allegations were stated in the statutory language of section 69 and alleged both a violation of the “attempting to deter or prevent” offense defined by section 69 and a violation of the “resisting” offense defined by that section:  “․ did wilfully and unlawfully attempt by means of threat and violence to deter and prevent OFFICER DUANE BECKMAN and OFFICER DARRYL HURT, who was [sic] then and there an [sic] executive officers, from performing a duty imposed upon such officers by law, and did knowingly resist by the use of force and violence said executive officers in the performance of their duty.”  (Emphasis added.)

Following the presentation of the case to the jury, the jury was instructed as to the section 69 charge simply by use of that section's statutory language.   The verdict form provided to the jury not only referred back to the charging allegations of the information and referenced the specific statutory section-number of the charging statute, but also confusingly entitled the statute “PREVENTION OF AN OFFICER FROM PERFORMING HIS DUTY BY THREATS OR VIOLENCE.”   Further, the verdict failed to provide for a specification by the jury as to which specific section 69 offense (the “attempt offense” or the “resisting offense”) had been committed by the defendant.

On appeal, the defendant makes three contentions:  (1) The trial court erred in not giving a CALJIC No. 17.01 “unanimity” instruction to the jury as to the section 69 charge in light of the prosecution's failure to elect a specific section 69 offense upon which to rely in proving the charge;  (2) the trial court erred in not giving a clarification instruction as to the constitutionally allowable application of section 69;  and (3) the trial court erred in failing to properly instruct the jury with respect to the requisite intent necessary to a conviction under section 69.

We agree with all of the defendant's contentions.   While our conclusion with respect to the necessity for a “unanimity” instruction mandates a reversal in this matter and is, in the barest sense, dispositive of the appeal before us, we nevertheless also address defendant's other contentions for the guidance of the trial court should this matter be retried.



As alluded to previously in this opinion, section 69 defines two distinct offenses:  (1) Any “attempt[ ], by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law; ”  and (2) to “knowingly resist[ ], by the use of force or violence, such officer, in the performance of his duty.”  (People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9, 182 Cal.Rptr. 757;  In re M.L.B. (1980) 110 Cal.App.3d 501, 503, 168 Cal.Rptr. 57.)

The evidence adduced at trial by the prosecution went to both of the above offenses.   The defendant's threats that Garcia was not going to be taken anywhere, his advancing toward Beckman and his assuming a belligerent stance could have been deemed by a juror, in the overall context of this case, to be proscribed “attempts to deter or prevent.”   Similarly, the defendant's striking Beckman and attempting to escape from Hurt could have been deemed by a juror to be acts of knowing, forceful “resistance.”   Equally important, however, is the fact that evidence adduced at the trial by the defense directly contradicted the prosecution's evidence.   There was testimonial evidence received at the trial to the effect that the defendant had done nothing more than loudly berate the officers for their “heavy handed” tactics and defend himself against an unprovoked, unlawful assault by the officers.  (Indeed, there was defense testimony that:  (1) The officers actually had shattered a window in Garcia's car;  (2) there never was a passenger in Garcia's car;  (3) the defendant never assumed a boxing, or otherwise belligerent, stance in an effort to “face down” the officers;  (4) the officers initiated the physical confrontation by striking the defendant with nightsticks;  and (5) the officers repeatedly struck the defendant with their nightsticks after the defendant was handcuffed in the recreation room.)   In short, there was ample evidence introduced at the trial on which a juror could have relied in deciding that the defendant had, or had not, committed either one or both of the offenses defined by section 69 in any one of several different ways.

 Where, as here, the defendant is accused of but one criminal offense (a violation of section 69) and the evidence is susceptible of proving the commission of more than one such offense, either the prosecution must elect which specific offense is to be focused on as the basis for the charge or the court must instruct the jury that it must unanimously agree beyond a reasonable doubt as to the specific criminal offense committed by the defendant.  (CALJIC No. 17.01;  People v. Diedrich (1982) 31 Cal.3d 263, 280–282, 182 Cal.Rptr. 354, 643 P.2d 971.)   Inasmuch as the prosecution failed to make an election in this case, the court bore an obligation to instruct the jury sua sponte in conformity with CALJIC No. 17.01.  (People v. Perryman (1987) 188 Cal.App.3d 1546, 1549, 234 Cal.Rptr. 181.)

There are, of course, certain limited exceptions to this obligation which arise “when the charged offense is part of a single transaction or continuous course of conduct.”  (People v. Perryman, Ibid.)   Such is not the case here.   The defendant's conduct in this case consisted of a series of discrete acts, differing from each other in kind as well as in degree.

In an effort to uphold the jury's verdict as necessarily including both section 69 offenses, the People assert that this is an “all or nothing” case in the sense that the jury, if it believed the prosecution's evidence at all (which, given the defendant's conviction, was the case), must have believed all of the prosecution's evidence.   However, we are not persuaded.   Surely, for example, a juror might have believed that the defendant unlawfully attempted to deter or prevent the officers' investigation of Garcia without also necessarily believing that the defendant forcefully resisted his own arrest.

 Finally, the People argue that any error committed by the trial court with regard to a unanimity instruction was harmless error and does not require reversal.  “We are mindful that the courts have applied varying standards of review to the failure to give a unanimity instruction.  (See cases collected in People v. Schultz (1987) 192 Cal.App.3d 535, 539–540, 237 Cal.Rptr. 513.)”  (People v. Winkle (1988) 206 Cal.App.3d 822, 828, 253 Cal.Rptr. 726.)   However, the failure to give a unanimity instruction most clearly does constitute prejudicial error, under any standard of review, in those instances where the jurors can easily disagree as to which specific criminal offense the defendant committed and nevertheless find him guilty of the crime charged.   This case represents just such an instance.   In this case, there was an adequate evidentiary basis upon which jurors might have disagreed as to whether the defendant committed an “attempt” offense and/or a “resisting” offense—and neither the court's instruction on section 69 nor the jury's verdict form serves to suggest that such a disagreement was discouraged or made unlikely.5



We briefly address the following points for the guidance of the trial court should this matter be retried:


 Ordinarily, a court need do no more in instructing a jury with respect to a statute than use the statutory language itself.   However, this general principle only applies when a jury “would have no difficulty in understanding the statute without guidance.”  (People v. Jones (1971) 19 Cal.App.3d 437, 447, 96 Cal.Rptr. 795.)

 In order to properly understand section 69, a jury needs guidance.   In People v. Superior Court (Anderson) (1984) 151 Cal.App.3d 893, 199 Cal.Rptr. 150 it was properly held that section 69 is unconstitutionally overbroad if the phrase “any threat” is understood to include political hyperbole or threats of lawful conduct (for example, a threat to report a law enforcement officer to the internal investigation division of the officer's law enforcement agency).   Thus, a jury should be instructed that the phrase “any threat” in section 69 applies only to threats of unlawful violence.  (Ibid.)


The “attempt offense” set forth in section 69 is a specific intent crime, while the “resisting offense” set forth in that statute is a general intent crime.  (People v. Roberts, supra, 131 Cal.App.3d Supp. 1, 9, 182 Cal.Rptr. 757;  see People v. Hood (1969) 1 Cal.3d 444, 456–457, 82 Cal.Rptr. 618, 462 P.2d 370:  “When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act.   This intention is deemed to be a general criminal intent.   When the definition refers to defendant's intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent.”.)

 Notwithstanding the fact that the general instruction concerning attempts, CALJIC No. 6.00, speaks of a “specific intent to commit the crime,” the required instruction on intent with regard to a charge of an “attempt offense” under section 69 is CALJIC No. 3.31—which instruction explicitly sets forth language to be used in situations, such as the one before us, where the precise intent necessary to a conviction is included in the definition of the crime itself.   Indeed, inasmuch as a particular “specific intent” is an inherent element of the “attempt” offense defined by section 69, the trial court is obligated to instruct the jury as to that particular, specific intent on a sua sponte basis, if necessary.  (People v. Ford (1964) 60 Cal.2d 772, 792–793, 36 Cal.Rptr. 620, 388 P.2d 892.)

If this matter is tried again upon remand, the trial court should instruct the jury in the following (or equivalent) manner with respect to the “attempt offense” defined by section 69:  “CONCURRENCE OF ACT AND SPECIFIC INTENT:  In one of the crimes charged in Count III of the Amended Information under section 69 of the Penal Code, namely, an attempt, by means of any threat of unlawful violence or violence, to deter or prevent OFFICER DUANE BECKMAN and/or OFFICER DARRYL HURT, who were then and there executive officers, from performing a duty imposed upon such officer(s) by law, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the defendant.   Unless such specific intent exists, the crime to which it relates is not committed.   The specific intent required is included in the definition of the crime charged and consists of the specific intent to deter or prevent an executive officer from performing any duty imposed upon such officer by law.”


No issues having been raised on appeal with respect to the judgment entered in case number CR 26117, the judgment in that matter is affirmed.

The judgment in case number CR 26948 is reversed.


2.   Penal Code section 69 will hereafter be cited by section number only.   In pertinent part, section 69 states:  “Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or who knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable․”

3.   Defendant's notice of appeal referred only to case number CR 26117 and was timely only with respect to that one case.   Indeed, the People suggest in their Respondent's Brief that we dismiss the appeal in case number CR 26948 pursuant to rule 31(a) of the California Rules of Court.However, this court has already determined, by order dated July 20, 1988, that the notice of appeal filed in regard to case number CR 26117 shall be deemed to be a timely notice of appeal with respect to both case number CR 26117 and case number CR 26948.  (See In re Benoit (1973) 10 Cal.3d 72, 109 Cal.Rptr. 785, 514 P.2d 97 and In re Arthur N. (1974) 36 Cal.App.3d 935, 112 Cal.Rptr. 89.)

4.   The statement of facts set forth here is primarily drawn from the testimony of the prosecution's witnesses in the trial held below.   Alternate versions of the facts will be alluded to, where necessary, in the discussion which follows.   In either instance, the facts refer only to the events involved in case number CR 26948.

5.   Of course, a CALJIC No. 17.01 “unanimity” instruction need not be given where the circumstances are such that the jurors, as a practical matter, could not have disagreed as to the particular offense committed by the defendant.   While it is quite impossible to set forth a conclusive “list” of such circumstances, it suffices here to observe that there would have been no need for a CALJIC No. 17.01 instruction in this case had the charging allegations of the amended information, the jury instructions and the verdict forms all dealt with the section 69 offenses as two, distinct offenses.

CAMPBELL, Presiding Justice.

McDANIEL and DABNEY, JJ., concur.

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