PEOPLE v. THOMAS (1994)

Defendant was convicted by a jury of violating Penal Code Section 69,¹ commonly referred to as “resisting arrest.” ²  He appeals contending the court erred in failing to instruct sua sponte that one branch of the resisting arrest offense requires specific intent.³  We conclude that the jury was adequately instructed on the required scienter and will affirm the judgment.

FACTS AND PROCEDURAL BACKGROUND

 The case-in-chief

Early one evening, Sacramento Police Officer Saldana was in uniform and on patrol in a marked unit.   He saw defendant and four others in front of a market, screaming and drinking beer.   He asked a passerby what was happening and was told, “[B]ad dope deal.”   Saldana communicated with Officer Miller, in another patrol car nearby, and both officers approached and attempted to detain and identify defendant and his companions.

Suddenly, defendant ran away.   While Miller ran after him, defendant removed what appeared to be rock cocaine from his pants pocket and tossed it away.

Eventually, defendant ran down an alley toward the market where the chase began, and Miller so advised Saldana by radio.   Although the alley was wide enough that he could have avoided Saldana, defendant grabbed Saldana and pushed him against the cab of a parked truck.

Saldana lost his balance and defendant tugged at his service revolver, threatening to kill him.   Saldana pushed defendant away, drew his weapon and ordered him to the ground.   Defendant failed to comply, but Miller and Saldana eventually managed to restrain him.   According to Saldana, defendant continued “fighting, resisting, yelling, screaming, struggling,” until he was placed in the patrol car.

 The defense

Defendant, who suffered prior convictions for “theft with a prior” and grand theft from a person, testified as follows.   He and two companions drove to the store, where a stranger requested drugs.   When they left the store, police were with the man who asked for drugs.

Defendant, who had a baggie of “fake rocks,” crossed the street and Miller, who carried a baton, approached, calling out to him using derogatory terms, including a racial epithet.   Defendant identified himself and an identification check “came back clear.”   Defendant ran away, discarded the imitation cocaine and returned toward the store to surrender, when Saldana jumped in front of him, holding his baton as if he were going to hit him.   Defendant unavoidably ran into Saldana, fell and lay in the street while Saldana kicked him repeatedly.   Miller appeared later and repeatedly struck defendant, again employing the racial epithet.   Defendant denied speaking or being enraged.

Other witnesses for the defense testified that in prior policing incidents, Miller used the same derogatory terms of address which the defendant testified he used on this occasion, and that Miller harassed and humiliated citizens and threatened them with retaliation by the KKK.

 The instructions

The jury was instructed on the offense of resisting arrest as follows.

“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 use of force or violence, such officer in the performance of his duty, is guilty of resisting or deterring an officer.

“In order to prove such crime, each of the following elements must be proved:

“1. A person deterred, prevented or resisted an executive officer in the performance of his lawful duty;  [¶] 2.   The person did so by force, threat or violence;  [¶] 3.   The person acted willingly;  [¶] 4.   The person acted knowingly.”

The jury was also instructed, in the language of CALJIC No. 3.30, that to violate section 69, a person must act with “general criminal intent.”   They were told that general criminal intent:  does not require “an intent to violate the law.  [¶] When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful.”

DISCUSSION

Penal Code section 69 defines two separate offenses.   The first punishes an attempt by means of threat or violence to deter a police officer from performing his or her lawful duty.   The second punishes the knowing resistance, by force or violence, of an officer in the performance of a lawful duty.   The jury was instructed in the language of section 69, that to violate the section one must act with general criminal intent and that such an intent may be found “[w]hen a person intentionally does that which the law declares to be a crime․”

The defendant argues that he could have been convicted of the attempt-to-deter offense, which has been deemed a specific intent crime (People v. Roberts (1982) 131 Cal.App.3d Supp. 1, 9, 182 Cal.Rptr. 757), pursuant to the general intent instruction.   Specifically, he argues that the jury could have convicted him of forcibly attempting to deter Officer Saldana on the theory that he forcefully but inadvertently collided with him, momentarily deterring him.

Defendant's claim puts in issue (1) whether the jury was adequately instructed concerning intent to deter and (2) whether the general intent instruction might have deflected the jury from the proper standard.   We consider these questions seriatim.

I

 With the demise of diminished capacity there are only two circumstances in which a court must characterize an offense as requiring specific intent, one arising where there is need to instruct the jury that the offense requires an intent to achieve some further consequence by commission of the proscribed act, the other having to do with the materiality of evidence of voluntary intoxication (§ 22).   Here there is no issue of voluntary intoxication and we need determine only whether the jury was correctly instructed on the required intent.

 Regardless of its debatable utility in legal analysis (see People v. Hood (1969) 1 Cal.3d 444, 456, 82 Cal.Rptr. 618, 462 P.2d 370) a court has no duty to employ the term “specific intent” in instructing a lay jury.⁴  A court must instruct the jury on the elements of the offense sufficient to inform it of the scienter required by law.   A court has a sua sponte duty to instruct the jury on a particular intent when it is an element of the offense and the instruction is “ ‘necessary to enable [the jurors] to perform their function in conformity to the applicable law.’ ”  (People v. Ford (1964) 60 Cal.2d 772, 792–793, 36 Cal.Rptr. 620, 388 P.2d 892, citations omitted.)   One circumstance in which that need arises is when an element of the offense is an intent to achieve some further consequence by commission of the proscribed act and the jury might otherwise conclude that an intent is required only to do the act condemned and not to achieve the further consequence.   In such a case an instruction must be given which “leaves no doubt in the jury's mind that [the intent to achieve a further consequence] is not to be automatically inferred from the doing of the physical acts involved in the crime.”  (People v. Hill (1967) 67 Cal.2d 105, 118, 60 Cal.Rptr. 234, 429 P.2d 586.)⁵  A specific intent instruction, which relates the intention to the object of the proscribed act, is sufficient to that end.

 Nonetheless, the language of a statute defining an offense may, without more, convey a required intent to achieve a further consequence by commission of the proscribed act.  (See, e.g., People v. Richardson (1911) 161 Cal. 552, 554, 564–565, 120 P. 20 [supplies a drug to a pregnant woman with the intent thereby to procure miscarriage];  People v. Zerillo (1950) 36 Cal.2d 222, 232, 223 P.2d 223 [offers any bribe to an executive officer with intent to influence him with respect to official action];  People v. Thompson (1980) 27 Cal.3d 303, 313, fn. 5, 165 Cal.Rptr. 289, 611 P.2d 883 [required intent to steal conveyed by “intent to commit larceny”];  People v. Lyons (1991) 235 Cal.App.3d 1456, 1461–1462, 1 Cal.Rptr.2d 763 [knowingly dissuades a witness];  People v. Cleaves (1991) 229 Cal.App.3d 367, 381, fn. 18, 280 Cal.Rptr. 146 [required intent to kill conveyed by definition of express malice as intention unlawfully to kill a human being].)   In such a case nothing further need be appended to the instructions given in the language of the statute.

The provision of section 69 in issue is such a statute.   It provides:  “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 ․ [is punishable under the statute].”  “An attempt connotes the intent to accomplish its object, both in law (§ 21a) and in ordinary language.”  (Lyons, supra, 235 Cal.App.3d at p. 1461, 1 Cal.Rptr.2d 763;  also c.f., e.g., Hood, supra, 1 Cal.3d at p. 454, 82 Cal.Rptr. 618, 462 P.2d 370 equating “to attempt” with “to try”.)   Thus, the statutory language is adequate to inform a juror that the intent required is to deter or prevent an officer from performing a lawful duty.

In this case the jury was further instructed that the defendant was guilty of the offense if he “deterred, [or] prevented ․ an executive officer in the performance of his lawful duty”, “did so by force, threat or violence”, and in so doing “acted willingly [and] knowingly.”   While this additional instruction is unhelpful, it is also not harmful.   It also conveys the required intent.   It informs the jury that the defendant must know that his willing use of force or threat of force has the purpose or effect of deterring or preventing a police officer from the performance of the officer's duty.   In this context “ ‘knowingly,’ ․ makes clear that the relation of act to consequence must be known to the actor.   Such a knowing act is ordinarily a criterion of intention.  [Citations.]”  (Lyons, supra, 235 Cal.App.3d at p. 1461, 1 Cal.Rptr.2d 763, fn. omitted.)

Having been correctly instructed on the required intention, nothing would be gained by instructing the jury that the intention conveyed is known to the law as a specific intention.

II

 The remaining issue is whether the jury was deflected from correctly applying the language of the statute by the instruction that section 69 is a general intent crime.   The provision of CALJIC No. 3.30 to which the defendant objects says that “[w]hen a person intentionally does that which the law declares to be a crime, he is acting with a general criminal intent, even though he may not know that his act or conduct is unlawful.”   We find no prejudice in giving this instruction for reasons discussed at length in Lyons, supra.

In Lyons, the jury was instructed that section 136.1, attempting to knowingly and maliciously dissuade the victim from testifying by threat of force or violence, was a general intent crime.   We concluded, on the view that the offense could be characterized as a specific intent crime, that the error was harmless.

“Of significance here, the general intent instruction says that when a person ‘intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.’   In People v. Zerillo (1950) 36 Cal.2d 222 [223 P.2d 223], a prosecution for offering a bribe to a public official, an offense requiring a specific intent, the jury, as here, was instructed on general criminal intent.   The court found the instruction harmless.  ‘The challenged instruction used the expression “criminal intent” in its narrow and proper sense, defining it as nothing more than the intentional doing of “that which the law declares to be a crime,” and, ․ other instructions pointed out ․ that the act in the present case “which the law declares to be a crime” is the offering of a bribe with specific intent to influence official action.   As so used and defined, the expression “criminal intent” ․ did not ․ authorize the jury to infer a specific intent on defendant's part ․ from the mere act of his offering money to’ the public official.  (Id. at p. 232 [223 P.2d 223].)   Since the general intent instruction is dependent upon ‘that which the law declares to be a crime,’ its effect turns upon the substantive elements of the offense to which it is applied.”  (Lyons, supra, 235 Cal.App.3d at p. 1462, 1 Cal.Rptr.2d 763.)

Here, as in Lyons, “defendant is left with the empty claim that the jury was given the wrong label for the correct substantive instructions.   The trial court's instruction on general intent was error but patently harmless.”   (Lyons, supra, 235 Cal.App.3d at p. 1463, 1 Cal.Rptr.2d 763.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

1.   Penal Code section 69 provides, “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 [by specified imprisonment and fines].”   Further statutory references are to the Penal Code unless otherwise noted.

2.   He was also convicted of possession of an imitation controlled substance with intent to distribute it, a misdemeanor (Health & Saf.Code, § 11680), but does not challenge the conviction.

3.   Defendant also contends that the jury was misinstructed on the concept of reasonable doubt.   That contention is laid to rest by Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583.

4.   The same is true concerning the reciprocal term “general intent.”   Even in the case where voluntary intoxication is presented, the better practice is simply to instruct on the mental state required for conviction of the offense in consideration of a permissible finding that the defendant was so intoxicated at the time of the offense.   The additional layer of “specific intent/general intent” nomenclature does not assist the lay person who is asked to apply the instruction to the facts—at best it is useless noise, at worst it is misleading legal jargon.   The consideration whether knowledge of the unlawfulness of the wrongful act is required, does not distinguish a general from a specific intent.  (Compare CALJIC No. 3.30 with Pen.Code, § 7, subd. 5.)

5.   People v. Hood, supra, 1 Cal.3d at p. 457, 82 Cal.Rptr. 618, 462 P.2d 370, said that in “most cases specific intent has come to mean an intention to do a future act or achieve a particular result, and that assault is appropriately characterized as a specific intent crime under this definition.”  (Emphasis added.)   However, where evidence of voluntary intoxication is sought to be introduced under section 22 “when a specific intent crime is charged” the phrase “includes murder, even where the prosecution relies exclusively upon the theory that malice is implied, rather than express.”  (People v. Whitfield (1994) 7 Cal.4th 437, 450, 27 Cal.Rptr.2d 858, 868 P.2d 272, fn. omitted.)

BLEASE, Acting Presiding Justice.

SIMS and NICHOLSON, JJ., concur.