People v. Southard

62 Cal.App.5th 424

276 Cal.Rptr.3d 656

The PEOPLE, Plaintiff and Respondent,

v.John Wesley SOUTHARD, Defendant and Appellant.

A157236

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

Filed March 24, 2021

Attorney General of California, Xavier Becerra ; Chief Assistant Attorney General, Lance E. Winters ; Senior Assistant Attorney General, Jeffrey M. Laurence ; Supervising Deputy Attorney General, Catherine A. Rivlin ; Deputy Attorney General, Bruce M. Slavin, for Plaintiff and Respondent.

By Appointment of First District Appellate Project Independent-case System, Rudolph J. Alejo, Berkeley, for Defendant and Appellant.

Richman, J. Defendant John Wesley Southard was involved in two traffic stops a week apart in December 2018, the first as a driver in a pickup truck, the second as a passenger in a car driven by a friend. As a result of defendant's interaction with officers from the California Highway Patrol (CHP) and the Crescent City Police Department, he was charged with seven counts of obstructing a peace officer and forcible resistance of an officer—charges that require the People to prove the officers were acting lawfully—and one misdemeanor count of possession of methamphetamine. Following a relatively brief trial and relatively lengthy deliberations, defendant was convicted on all charges. He was sentenced to five years four months in prison, and also assessed thousands of dollars in fines.

Defendant's appeal makes five arguments, the first three of which assert instructional error, that the trial court: (1) gave a special instruction based on language from an appellate opinion that acted to remove the lawful performance element of the resisting charges; (2) gave CALCRIM No. 250 that acted to remove the knowledge element of the charged offenses; and (3) failed to give a unanimity instruction. We agree with defendant's first two arguments, and conclude the errors were prejudicial. We thus reverse the convictions without the need to address the remaining arguments. And we publish the opinion, to remind trial courts of the danger of instructing a jury with language from an opinion that has nothing to do with jury instructions.

BACKGROUND

Introduction

Defendant was charged with eight counts, seven of which were for forcible resisting arrest and obstructing a peace officer arising out of his conduct in traffic stops on December 18 and December 25, 2018. Three officers testified about what occurred at the first stop, one of whom, Brenton Dunaj, testified over two days, giving testimony that was anything but consistent. Indeed, at one point in his briefing, the Attorney General himself describes the officer's testimony as "admittedly confused," such that "the potential existed for jurors to find an illegal detention"; at another point the Attorney General describes Dunaj's testimony as "confusing." The Attorney General's candor is spot on, as the examination of Dunaj revealed.

The December 18 Incident

At about 3:00 a.m., CHP Officers Dunaj and Spencer Good were patrolling Highway 101 in an area where the highway is a two-lane road. Dunaj was driving. As their vehicle proceeded south, they observed a pickup truck heading north at about 35 miles per hour in a 55 mile per hour zone, while straddling the white line separating the roadway from the shoulder. Driving at a slow speed was not a traffic violation, as Highway 101 did not have a minimum speed limit in that area. However, Dunaj testified, driving with tires over the line is a violation of the Vehicle Code. Moreover, because vehicles usually drive in the center of the lane at about the speed limit, the officers were suspicious the driver was under the influence.

When the pickup truck passed them, Dunaj made a U-turn and, as the prosecutor would describe him at trial, appearing a "little eager," said to Good: "Let's see what kind of trouble we can get into." And, Good added, the stop was to be consensual. After Dunaj turned around and began driving in the pickup's direction, the pickup pulled to the side of the road. Then Dunaj turned his lights on—which he admitted transformed the stop into a detention requiring reasonable suspicion—after which they noted that the registration was expired.

This is how the Attorney General's brief describes the setting: "Driving with an expired registration tags [sic ] also violates the Vehicle Code. [Citation.] The officers discussed having a consensual encounter with the driver by not activating their lights, but after Officer Dunaj saw the expired registration tag, he effected a detention by activating them. Officer Good testified that even though driving over the white line made the officers suspect the driver was impaired, in a consensual encounter they would still be able to observe the driver for signs he was intoxicated such as a smell of alcohol or red, watery eyes. If the driver seemed to be impaired the officers would tell him he was being detained. [Citation.] ... The officers had a reasonable suspicion the driver was impaired from the combination of the slow speed, driving over the white line, and the time of night. [Citation.]

"Based on the expired registration tag and his concern that the driver of the pickup truck was under the influence, Officer Dunaj activated his patrol car lights to direct the driver to pull over. [Citation.] ...

"Officer Dunaj testified that his reason for activating his lights was for a violation of Vehicle Code section 21658 (requiring a driver to drive within a single lane), although that statute applies only to roadways with two or more lanes in one direction. [Citation.] In his report, Officer Dunaj did not list a violation of Vehicle Code section 21658. The first listed violation was Vehicle Code section 22107, because Officer Dunaj considered driving over the line marking the edge of the roadway to be an unsafe movement."

After being pulled over, defendant got out of the pickup. The officers ordered him to get back in. But defendant took off running, and ran approximately two hundred feet before he tripped and fell. Dunaj got on top of defendant to hold him down and Good arrived "within seconds." Deputy Wade Owen, who was responding to a call for assistance, testified that he saw Good and Dunaj chasing defendant, and it took him "a few seconds" after he stopped to catch up to the group. Dunaj used his taser to "drive-stun" defendant a number of times, and the officers then arrested defendant. Owen's body camera captured the incident.

On direct examination, Dunaj testified that defendant's right hand was free, and appeared to be reaching towards his right pocket in which two folding knives, each with a three-inch blade, were later found.¹ On cross-examination, Dunaj was shown Owen's body camera footage showing that, contrary to Dunaj's testimony and his report, he actually had defendant's right hand in a control hold the entire time. Dunaj then testified that defendant was reaching for his flashlight and possibly to his right pocket in the 10 to 20 seconds before Owen's arrival. Six pages later, Dunaj changed his testimony, testifying that defendant's hand was underneath his body, not visible, and he could not say if it was going towards defendant's right pocket.

Good testified that he observed defendant's left arm to be underneath his body. Owen testified that while defendant's hand was behind his back, it was unclear what he was specifically reaching for. He also testified that when he got there, Dunaj had defendant's right hand "out and to the side."

And despite Dunaj's testimony that they pulled defendant over for three purported Vehicle Code violations, Dunaj admitted that "only one of [them] seem[ed] to factually apply," and it was an "infraction."²

The December 25 Incident

On December 25, Christmas, defendant was, along with his minor son, a passenger in an older model Volvo driven by David Bonde. Defendant was in the front passenger seat, his son in the back. At a little after 7:00 p.m., CHP Officer Tyler Krueger observed that the license plate lights on the Volvo were not working, and pulled the car over in a supermarket parking lot. As Krueger approached the car, he recognized defendant, as he had heard "stories" about him, and was aware of the December 18 incident—knowledge, Krueger would come to testify, that affected how he dealt with defendant during the traffic stop.

Krueger asked Bonde for his license, registration, and insurance.³ Krueger asked defendant for his full name and date of birth, and defendant asked why Krueger "was messing with" him. Krueger admitted he did not demand that defendant identify himself because at the point he was not aware of anything defendant had done wrong.

Krueger testified he wanted to run a warrant check and hoped to keep the conversation calm while he did. Defendant told Krueger he had recently been released from jail, and Krueger testified that although a person would not be released from jail if there was an outstanding warrant unless they had been given a court appearance date, he requested a warrant check because something could have come up after defendant's release.

Defendant unbuckled his seat belt, and moved his hand to the center console. Krueger told defendant to put his seat belt back on. Defendant said he had not done anything, and appeared to Krueger to be digging for something on his left side. Krueger asked him what he was digging for and, concerned that defendant was trying to grab something or run off, called for backup.

CHP Officer Brian Wilson arrived as backup, and was told by Krueger he was concerned defendant would "foot bail." Wilson made "small talk" with defendant, who among other things asked whether they could just let him go as it was Christmas.

Meanwhile, Krueger received advice from dispatch that defendant had a felony warrant, and requested more backup.⁴ CHP Officer Levi Sackett responded, and asked Bonde for the keys, which Sackett put on the roof of the car.

Krueger ordered defendant to get out of the car....