People v. Morgan

323 Cal.Rptr.3d 185

103 Cal.App.5th 488

The PEOPLE, Plaintiff and Respondent,

v.Henry MORGAN, Defendant and Appellant.

A166435

Court of Appeal, First District, Division 1.

Filed July 8, 2024

Trial Court: Sonoma County Superior Court, Trial Judge: Hon, Bradford DeMeo (Sonoma County Super. Ct. No. SCR7469261)

Michael Edward Allen, under appointment by the First District Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General of California, Lance E. Winters, Chief Assistant Attorney General, Jeffrey M. Laurence, Senior Assistant Attorney General, Donna M. Provenzano, Supervising Deputy Attorney General, David H. Rose, Deputy Attorney General for Plaintiff and Respondent.

BANKE, J.

Having ignored officers’ orders to get down on the ground, defendant reached into his car, pulled a gun from the front seat, took a "shooting stance," "racked" his gun, took aim directly at the head of an officer trying to subdue him so that the officer was "staring down the barrel of the gun" and certain he was about to die, pulled the trigger, and then fled in his car with the officers in hot pursuit. The issue before us is whether the jury could convict defendant of "resisting" the officers by "the use of force or violence" (Pen. Code, § 69, subd. (a))¹ because it turned out defendant’s gun was unloaded.

Defendant maintains the resisting charges never should have been submitted to the jury because precedent holds assault cannot be committed with an unloaded firearm and assault is a necessarily included lesser offense of resisting an officer under section 69, subdivision (a). Since his gun was unloaded, defendant could not have been convicted of assaulting the officers. Ergo, says defendant, he could not have been convicted of the greater offense of resisting an officer by the use of force or violence.

The Attorney General does not take issue with the venerable case law holding assault cannot be committed with an unloaded firearm. He does not agree, however, that it was beyond the province of the jury to find that defendant engaged in violent conduct while resisting the officers’ efforts to subdue and arrest him.

We have no doubt that in most cases a defendant who, by use of force or violence, resists an officer in the performance of his or her duties will also commit assault. However, the circumstances in this case are unlike those in any other section 69, subdivision (a) case cited by the parties or which we have located through our own research. On due consideration, we agree with the Attorney General that the frightening and dangerous scenario that unfolded here—which indisputably impeded the officers as they tried to perform their lawful duties and put not only defendant, but also bystanders, at serious risk of injury or death from the officers’ own use of deadly force to prevent what appeared to be their own imminent peril—comes within the bounds of the language and purpose of section 69, subdivision (a). We therefore affirm defendant’s conviction. We further conclude, however, the trial court erred in sentencing defendant and remand for resentencing in accordance with section 1170 as recently amended by Senate Bill No. 567 (2021-2022 Reg. Sees.) (Stats. 2021; ch. 731, § 1.3, eff. Jan. 1, 2022).

Background

The Encounter Between Defendant and Officers

California Highway Patrol Officer Matthew Goulding was driving eastbound in Sonoma County when he spotted "two men in [a] dirt field" that was part of, or on the outskirts of, a county park. The two men were "facing each other." One (who was later identified as defendant) had a knife and the other, a rock, and they "appeared to be in a stand-off, more or less a confrontation with each other."

Goulding pulled to a stop in the middle of the eastbound lane, at a diagonal, to "get traffic to stop coming towards [him] because [he] didn’t want anybody else near [him] when this dangerous encounter was going on." Goulding had on his "[f]ull tan uniform with [his] CHP badge and [his] name tag and gun belt and all [his] tools," and his patrol car was a "fully marked black and white CHP patrol vehicle."

Goulding could see that defendant was holding the knife "with a closed fist … with the blade pointed upward." He was in "an athletic combative stance … [c]learly an aggressive stance engaging with … the other individual." Goulding, who was approximately eight to 10 feet away from the men, got out of his vehicle, drew his side arm, and raised it "in an attempt to de-escalate both of their actions" and "deescalate the whole situation."

Neither man realized Goulding was there until he "started shouting commands." Goulding told them to "drop their respective weapons and to get down on the ground." The man holding the rock immediately complied. Defendant was "slow to react," but did "eventually lay down," although he continued to hold the knife. Goulding ordered defendant to "throw the knife away" from himself and "he did so."

Goulding thereupon holstered his weapon and called for his "beat partner," who was working the same area, so Goulding could "secure the scene," detain both men, and investigate what had happened.

Defendant, who was still on the ground, "started screaming," ‘I just want to leave, I just want to leave, I just want to leave.’ " He then suddenly "stood up, raised his hands above his head and started walking towards" Goulding. Fearing defendant might attack him, Goulding drew his taser.

Undeterred, defendant kept advancing toward Goulding, repeating that "he wanted to leave." At that point, Goulding decided not to "taze" defendant because he "believed … all [defendant] wanted to do was to leave." Goulding repeatedly told defendant "to get down on the ground." Defendant continued to ignore the officer and continued walking, and Goulding eventually realized he was walking toward a red Subaru parked on the shoulder of the road. Goulding noted the Subaru’s license plate as defendant got into the car and drove off, heading eastbound. Goulding asked dispatch to run the plate number and requested responding units to try to locate and stop the car.

As Goulding turned his attention to the other individual, Sonoma County Park Ranger Stephen Peake arrived on the scene offering his assistance. Seeing Peake was unarmed, Goulding decided not to "directly involve him" but asked him to run a vehicle search on a recreational vehicle that was also parked at the scene.

Shortly after defendant drove away, Goulding saw him return to the scene. Fearing for his safety, Goulding moved toward his patrol vehicle and opened the driver’s side door as a shield. He drew his "side arm and prepare[d] to engage in possibly a gun battle with [defendant] based off everything [he was] seeing at [that] point."

Defendant appeared to be "[h]ysterical" and was yelling, but Goulding could not make out what he was saying. As defendant stood "in the V of [the Subaru’s] door" (the "area when you open your driver door and you step out"), he "leaned over inside the vehicle and started rummaging around like he was looking for something." When he reemerged, defendant was holding a "black pistol in his right hand."

Around this time, Sonoma County Deputy Sheriff Micah Hope arrived and saw Goulding in a "high-risk stop with his gun pointed" at defendant. Goulding warned Hope that defendant had a gun.

As defendant moved toward the rear of the Subaru, both Goulding and Hope began "screaming ‘drop the gun, drop the gun.’ " Instead of doing so, defendant "raise[d] the gun and point[ed] it" at Goulding. Defendant was in a "shooting stance" and had the gun aimed squarely at Goulding’s head. Goulding was looking "down the barrel of [defendant’s] gun" and was "most definitely in fear for [his] life." Although Goulding could not tell whether defendant was trying to pull the trigger, Hope heard a "click" which he believed emanated from defendant’s pulling the trigger. Goulding continued to "yell at [defendant] ‘drop the gun, drop the gun.’ " Defendant continued to ignore him and began making "erratic movements like he was distraught" and "just extremely upset."

Both Goulding and Hope saw defendant "rack" the gun. It appeared to Goulding that defendant was trying to "load[] a bullet into the chamber." According to Hope, "you would do that … if the gun was jammed and not functioning correctly[,] you would rack the slide to get it back to working order." After defendant racked "the slide probably three times," Hope "saw him pull the trigger of the firearm while it was pointed at the ground. Since nothing happened and [Hope] could kind of hear a metallic click [i]t indicated to [him] that the gun was either out [of ammunition] or it was perhaps a very realistic fake, like an airsoft gun."

Hope nevertheless was in "fear[ ] for [his] life and [he] could have absolutely articulated [sic] shooting [defendant]." He testified, "[I]t is certainly the closest I’ve ever come in my 14-year career to shooting somebody." But he had "just a little sliver of doubt" that defendant was going to fire a fatal shot given "the lack of [defendant’s] gun directly pointing at [him] or another officer."

Similarly, from the "moment [defendant] drew his weapon and pointed it directly at" him, Goulding "believed that all [defendant] had to do was pull a trigger and it would be operable." But as minutes passed and defendant "continued to try and manipulate the weapon, racking the slide, trying to load a round from the magazine into the chamber," Goulding began to "question[ ] the gun’s operability." Regardless, Goulding "knew it wasn’t safe" and "perceived [defendant] was a threat the entire time." He thought defendant "was trying to get the gun to function properly, that he was trying to fire on us."

Defendant continued to move, this time toward the back of Peake’s pickup truck. He was "walking quickly still with the gun, still kind of waving it around, cursing, clearly very angry." Both Goulding and Hope continued to order him to "drop the gun."

Peake,...