THE PEOPLE v. DARYL BARNETT (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Defendant and appellant Daryl Barnett appeals his conviction following a jury trial, of battery against a peace officer in violation of Penal Code section 243, subdivision (b) (section 243(b)) (count 1), and resisting an executive officer in violation of section 69 (count 2).¹  The trial court suspended defendant's sentence on count 1 and placed him on probation for 36 months on the condition that he serve 365 days in county jail.   The court stayed the sentence on count two pursuant to section 654.

Defendant contends there was insufficient evidence to support his conviction under section 243(b).  Both defendant and respondent agree that the sentence should be corrected to show that defendant's probation was granted for his felony conviction under section 69, and not for his conviction under section 243(b).

We affirm the judgment and correct the sentence.

BACKGROUND

1. Factual Background

Defendant was in custody in the lockup area of the central arraignment court on August 10, 2003, when he told Audra Narcisse (Narcisse) that he had not had anything to eat.   Narcisse was a custody assistant employed by the Los Angeles County Sherriff's Department.   She assisted deputy sheriffs with the handling of inmates.   Narcisse had been assigned to work that day as a “Prowler 2,” a floater position that involved checking inmates, moving them into attorney rooms, and generally assisting with their handling.   Because defendant's hands were restrained in a manner that prevented him from feeding himself, Narcisse requested assistance from Deputy Jesse Uribe (Deputy Uribe) to remove one of defendant's restraints.

Deputy Uribe was working as a “Prowler 1” in the lockup area of the central arraignment court on August 10, 2009.   His duties included feeding the inmates, caring for sick inmates, and conducting security cell checks.   When Narcisse requested assistance with an inmate who claimed he had not received lunch, Deputy Uribe accompanied Narcisse to defendant's cell, opened the cell door, and asked defendant if he would be cooperative if they fed him.   Defendant said he would.   When Deputy Uribe uncuffed defendant's right hand, defendant punched Deputy Uribe in the jaw, placed Deputy Uribe in a headlock, and dragged him into the cell.   Narcisse sprayed defendant with pepper spray and attempted to grab defendant's arm, but was unable to restrain him.   Several other deputies arrived and eventually freed Deputy Uribe, who sustained abrasions to his forehead, a sprained right knee, and a slight wound to his right hand.

2. Procedural Background

An information filed by the Los Angeles County District Attorney charged defendant in count 1 with battery upon a custodial officer in violation of section 243.1, a felony, and in count 2 with resisting an executive officer in violation of section 69, also a felony.   Defendant pled not guilty and the case proceeded to a jury trial.   After the close of the prosecution's case, the trial court amended the information by interlineation to allege battery against a peace officer in violation of section 243(b) and struck the section 243.1 allegation.

A jury convicted defendant of both counts, as amended.   The trial court suspended imposition of sentence and placed defendant on probation for count 1, on the condition that he serve one year in county jail.   The court stayed the sentence on count 2 pursuant to section 654.

This appeal followed.

DISCUSSION

I. Standard of review

When sufficiency of the evidence to support a criminal conviction is challenged on appeal, an appellate court must review the entire record in the light most favorable to the judgment to determine whether there is substantial evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.  (People v. Osband (1996) 13 Cal.4th 622, 690.)   The reviewing court must draw all reasonable inferences in support of the judgment.  (People v. Wader (1993) 5 Cal.4th 610, 640.)   If the circumstances reasonably justify the trier of facts findings, the

II. Substantial evidence supports the section 243(b) conviction

The elements of the crime of battery on a peace officer in violation of section 243(b) ² are the willful and unlawful use of force upon a peace officer in the performance of his duties by a person who knows or reasonably should have known the victim was a peace officer performing his duties. (§ 243(b);  People v. Lindsay (1989) 209 Cal.App.3d 849, 857.)

Defendant contends there was insufficient evidence to support the jury's implied finding that he had actual or constructive knowledge that Deputy Uribe was a peace officer, as opposed to a custodial officer like Narcisse.   He argues that there was no evidence to distinguish Deputy Uribe's status from that of Narcisse, no testimony that Deputy Uribe and Narcisse were wearing distinguishable uniforms, and no evidence that Deputy Uribe told defendant he was a deputy sheriff or a peace officer.

The distinction defendant seeks to draw between Deputy Uribe's status as a peace officer or a custodial officer is immaterial for purposes of defendant's conviction under section 243(b).  Under that statute, the elements of the crime and the punishment that may be imposed are the same, regardless of whether the victim is a peace officer or a custodial officer.³

There was substantial evidence from which the jury could infer that defendant knew or reasonably should have known that Deputy Uribe was either a peace officer or a custodial officer.   Defendant was in custody in the lockup facility at the central arraignment court.   Deputy Uribe was on duty at that facility, and the jury could presume that he was in uniform at the time.   When Deputy Uribe accompanied Narcisse to defendant's cell, Deputy Uribe unlocked the cell door and asked defendant whether he would cooperate if Deputy Uribe unlocked defendant's handcuffs.   Deputy Uribe then unlocked the handcuffs.   Under these circumstances, the jury could reasonably infer that defendant knew or reasonably should have known that Deputy Uribe was a peace officer or a custodial officer engaged in the performance of his duties.   Substantial evidence supports defendant's conviction under section 243(b).

III. The sentence should be corrected

At sentencing, the trial court placed defendant on probation for three years, conditioned on his serving one year in county jail, for his conviction under section 243(b), a misdemeanor.⁴  Granting probation and requiring defendant to serve the jail sentence was consistent with felony probation and inconsistent with the imposition of a misdemeanor jail sentence.  (See People v. Barkley (2008) 166 Cal.App.4th 1590, 1595.)   The felony probation should have been ordered for defendant's felony conviction under section 69, and the sentence for his misdemeanor conviction under section 243(b) should have been stayed.   Both parties request that we exercise our authority to correct the sentence, rather than remanding the matter to the trial court for such correction.⁵  We accordingly exercise our authority to do so.   (People v. Welch (1993) 5 Cal.4th 228, 235.)

DISPOSITION

The judgment is affirmed.   Defendant's sentence is corrected to reflect that the grant of three years probation conditioned on his serving one year in county jail is for his conviction on count 2, resisting an executive officer in violation of section 69.   Defendant's sentence for his conviction on count 1, battery against a peace officer in violation of section 243(b), is stayed pursuant to section 654.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

CHAVEZ

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise stated..  FN1. All further statutory references are to the Penal Code unless otherwise stated.

FN2. Section 243(b) provides:  “When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.”.  FN2. Section 243(b) provides:  “When a battery is committed against the person of a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, whether on or off duty, including when the peace officer is in a police uniform and is concurrently performing the duties required of him or her as a peace officer while also employed in a private capacity as a part-time or casual private security guard or patrolman, or a nonsworn employee of a probation department engaged in the performance of his or her duties, whether on or off duty, or a physician or nurse engaged in rendering emergency medical care outside a hospital, clinic, or other health care facility, and the person committing the offense knows or reasonably should know that the victim is a peace officer, custodial officer, firefighter, emergency medical technician, lifeguard, process server, traffic officer, code enforcement officer, or animal control officer engaged in the performance of his or her duties, nonsworn employee of a probation department, or a physician or nurse engaged in rendering emergency medical care, the battery is punishable by a fine not exceeding two thousand dollars ($2,000), or by imprisonment in a county jail not exceeding one year, or by both that fine and imprisonment.”

FN3. Deputy Uribe's status as a peace officer rather than a custodial officer would have been relevant to a conviction under section 243.1, under which defendant was initially charged.   Section 243.1 governs battery against a custodial officer, defined under section 831 as “a public officer, not a peace officer, employed by a law enforcement agency of a city or county who has the authority and responsibility for maintaining custody of prisoners and performs tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment ․“ (§§ 243.1, 831, subd. (a), italics added.)   As discussed, the trial court amended the information to allege a violation of section 243(b), which encompasses battery against peace officers, custodial officers, and others.   The jury was instructed accordingly..  FN3. Deputy Uribe's status as a peace officer rather than a custodial officer would have been relevant to a conviction under section 243.1, under which defendant was initially charged.   Section 243.1 governs battery against a custodial officer, defined under section 831 as “a public officer, not a peace officer, employed by a law enforcement agency of a city or county who has the authority and responsibility for maintaining custody of prisoners and performs tasks related to the operation of a local detention facility used for the detention of persons usually pending arraignment ․“ (§§ 243.1, 831, subd. (a), italics added.)   As discussed, the trial court amended the information to allege a violation of section 243(b), which encompasses battery against peace officers, custodial officers, and others.   The jury was instructed accordingly.

FN4. Section 243(b) is a “wobbler” offense that may be treated either as a felony or a misdemeanor. ( 243(b);  People v. Hawkins (2002) 98 Cal.App.4th 1428, 1457.)   Because the trial court imposed a punishment other than imprisonment in state prison the offense is a misdemeanor. ( 17, subd. (b)(1).).  FN4. Section 243(b) is a “wobbler” offense that may be treated either as a felony or a misdemeanor. ( 243(b);  People v. Hawkins (2002) 98 Cal.App.4th 1428, 1457.)   Because the trial court imposed a punishment other than imprisonment in state prison the offense is a misdemeanor. ( 17, subd. (b)(1).)

FN5. Because no state prison sentence was imposed, there is no abstract of judgment to be corrected.  (See § 1213, subd. (a).).  FN5. Because no state prison sentence was imposed, there is no abstract of judgment to be corrected.  (See § 1213, subd. (a).)

_, Acting P.J. DOI TODD _, J. ASHMANN–GERST