People v. Rios, F074387

THE PEOPLE, Plaintiff and Respondent, v. JOSE RIOS, Defendant and Appellant.

F074387

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT

June 27, 2019

ORDER MODIFYING OPINION[No Change in Judgment]

It is hereby ordered that the opinion filed herein on June 27, 2019, be modified as follows:

1. Delete the footnote indicator for footnote 4 on the last line of page 6;

2. Renumber the remaining footnotes so that existing footnote 5 becomes new footnote 4, existing footnote 6 becomes new footnote 5, etc.

Except for the modification set forth, the opinion previously filed remains unchanged.

This modification does not effect a change in the judgment.

/s/_________

SMITH, J.

WE CONCUR:

/s/_________

FRANSON, Acting P.J.

/s/_________

SNAUFFER, J.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. BF163286A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Charles R. Brehmer, Judge.

Lauren E. Dodge, under appointment by the Court of Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo- For a fairly straightforward, yet lengthy fact pattern, this appeal demands a very complex and tedious analysis into sufficiency, unanimity, and lesser related offenses. In addition, it provides an opportunity on remand for the trial court to look into Penal Code sections 1001.35 and 1001.36, and the potential application of mental health diversion. While we do not intend to steer the trial court in any particular direction as to how to exercise its discretion on mental health diversion, we do recommend the court conduct a review into whether it may be appropriate in this case.

Four Bakersfield firefighters were dispatched in a fire truck to check on defendant Jose Rios, who had been wandering in traffic, apparently intoxicated, and hitting a cement object with his bare fists. They approached and tried to speak with him, but he disregarded them and continued to behave erratically. Thinking him a danger to himself, they called for a peace officer to detain or arrest him. Chris Campbell, a Bakersfield Fire Department arson investigator, was the first to respond. Still oblivious, Rios walked past Campbell as Campbell ordered Rios to stop. Campbell observed the irrational behavior and associated it with PCP (phencyclidine or angel dust) use. He placed a hand on Rios and a scuffle ensued, during which Campbell, with the help of three firefighters, wrestled Rios to the ground and handcuffed him. Another arson investigator, Victor Mabry, arrived and took control of Rios as he continued to struggle. Mabry finally succeeded in carrying Rios, writhing and snapping his teeth, to a police car with the assistance of two police officers who had arrived in the mean time. Afterward, Campbell noticed his right hand hurt. An x-ray revealed a broken bone.

A jury found Rios guilty of a complex set of similar offenses based on this brief altercation, ranging from simple assault to assault on a peace officer with force likely to produce great bodily injury, enhanced with an allegation of personal infliction of great bodily injury. It also found him guilty of public intoxication. The court imposed a prison sentence the length of which—16 years—was owing largely to enhancements based on prior offenses.

A curious feature of the convictions involving Campbell was that in some of them, the jury necessarily found that Rios seriously injured Campbell, while in others, the verdict reached was possible only if Rios was not proved to have seriously injured Campbell. These verdicts are not inconsistent because there was evidence of multiple assaultive acts by Rios against Campbell and the jury could reasonably find that one or more of these caused injury and one or more of the others did not. The fact that this is what the jury appears to have done to reach these verdicts, however, highlights an error: Because the court did not give the jury a unanimity instruction and the prosecutor did not make elections, there is no assurance that for each conviction, all 12 jurors agreed on the same specific act or set of acts as proof of the necessary elements.

The potential for nonunanimity was exacerbated by the inconsistency in the way the charges were described to the jury. The inconsistencies pertained, for the most part, to the characterization of Campbell and Mabry as firefighters or peace officers. In the information, which was read to the jury at the beginning of the trial, Rios was accused of offenses that were aggravated because the victim was a firefighter. In the jury instructions, the jury was sometimes instructed that it must find the victim was a firefighter and sometimes a peace officer. The verdict forms, without consistency, refer to the victims as arson investigators, firefighters, and peace officers. It generally was impossible to discern from the combination of the information, jury instructions, and verdict forms which type of official was in question. Yet the jurors were required to make findings about whether Campbell and Mabry were officials of one type or another, which affected further necessary findings, regarding their official duties and whether Rios knew or reasonably should have known they were officials of a specific sort doing their official duty. This contributes to the impossibility we now face of stating with any assurance that the jurors based their verdicts on factual findings to which they all agreed.

Given the evidence and the complexity of the charges, the potential for disagreements was inevitable and the trial court should have given the jury a unanimityinstruction on its own motion. The failure to do so denied Rios the right to a unanimous jury. This is reversible error, affecting counts 1, 2, and 5, and the lesser included offenses under counts 3 and 4—all the charges in which Campbell was the victim.

On counts 5 and 6, the parties agree that the omission of an instruction on simple assault as an alternative to resisting an officer was erroneous. We agree, but not for the reason advanced by the parties. The People argue that the omission was harmless. We disagree. The only remaining conviction is count 8, public intoxication, which is unchallenged.

We reject Rios's claim that there was insufficient evidence to prove he knew or should have known Campbell and Mabry were peace officers. We have reviewed the materials reviewed in camera pursuant to Rios's Pitchess¹ motion, and find there was no discoverable evidence among those materials.

It is unnecessary to address Rios's remaining contentions, but we discuss some points concerning these for purposes of guidance on remand.

Finally, without issuing any sort of order or direction on a subject the parties have not raised, we deem it appropriate to call to the attention of the trial court and parties the new mental health diversion statute that became effective January 1, 2019. (Pen. Code,² §§ 1001.35-1001.36; Stats. 2018, ch. 34, § 24; Stats. 2018, ch. 1005, § 1.) There is no indication in the record that Rios has ever received a psychological evaluation, but there are indications that the actions for which he was convicted were products of mental disorder, including but possibly not limited to substance abuse disorder. Should the People undertake to prosecute again any of the charges on which we are reversing the convictions, the trial court will have discretion to bring the new statute into play.

The reader will certainly find this opinion long and could well find the issues analyzed in it tedious, so it may be easy to lose sight of the central reality with which we are presented: A man found crazed and faltering in the street has been sentenced to 16 years in state prison—with at least 85 percent of that time actually to be served—because he had a long prior history of minor crimes³ and because his frantic unreasoning struggle led to a broken bone in the hand of one of the emergency responders sent to corral him. The victim himself said Rios appeared not to be in his right mind.

The new mental health diversion statute presents an opening, depending upon availability of services, to treat this growing segment of the population in a manner different from, but certainly no worse than, the status quo.

The judgment is reversed except for count 8.

FACTS AND PROCEDURAL HISTORY

The district attorney filed an information charging Rios as shown in the table below. (The verdicts for each count are shown here as well for ease of reference.)

Count

Offense

Enhancement

Verdict

1

Assault on Campbell,

a peace officer or

firefighter, by means

Personal infliction of

great bodily injury

Guilty

Enhancement allegation

   of force likely toproduce great bodilyinjury(§ 245, subd. (c))  (§ 12022.7)  true  2  Assault on Campbellby means of forcelikely to produce greatbodily injury(§ 245, subd. (a)(4))  Personal infliction ofgreat bodily injury(§ 12022.7)  GuiltyEnhancement allegationtrue  3  Battery on Campbellcausing serious bodilyinjury(§ 243, subd. (d))   Not guilty of chargedoffenseGuilty of lesser includedmisdemeanors:Assault (§ 240)Battery (§ 243, subd. (a))  4  Battery on Campbell,a firefighter, causinginjury(§ 243, subd. (c)(1))  Personal infliction ofgreat bodily injury(§ 12022.7)  Not guilty of chargedoffenseEnhancement allegationnot trueGuilty of lesser includedmisdemeanors:Assault (§ 240)Battery (§ 243, subd. (a))Assault on a peaceofficer (§ 241, subd. (c))Resisting a peace officer(§ 148, subd. (a))4  5  Resisting Campbell,an executive officer—

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