P. v. Titman

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Filed 9/17/19 P. v. Titman CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
JAMES TITMAN,
Defendant and Appellant.
C085354
(Super. Ct. No. 17FE000405)
Defendant James Titman appeals from his conviction for causing serious bodily
injury while resisting a peace officer, resisting an executive officer in the performance of
duty, and providing false identification to a police officer. He contends insufficient
evidence supported his false identification conviction, the trial court erred by not
instructing the jury on simple assault as a lesser included offense of resisting an executive
officer, and the prosecutor committed misconduct by misstating the law during closing
argument. Additionally, defendant requests that we review the sealed transcript of the in

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camera hearing on his Pitchess1 motion to ensure the trial court properly followed
appropriate procedures. We reverse the false identification conviction for insufficient
evidence and otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On January 5, 2017, just before 1:00 a.m., Sacramento Police Officers Helen
Mortlock and Micah Kraintz responded to a report that two subjects had jumped the fence
at Cal Expo. Upon arriving at Cal Expo, the officers saw defendant walking in a parking
lot wearing blue latex gloves, dark clothing, and one or two full backpacks.
Officer Kraintz drove the patrol car toward defendant, and defendant approached
the car. While still in the car and without the car’s lights activated, Kraintz asked
defendant if he had been jumping fences; defendant denied he had. Kraintz recognized
defendant as a parolee, but he did not remember defendant’s name. He asked defendant’s
name, and defendant responded “Jim Rogers.” Officer Mortlock began a records check
for that name.
The two officers’ testimony regarding the subsequent events differed slightly.
Kraintz testified that he got out of the patrol car and asked defendant if he was wanted for
a parole violation. Defendant pushed past him and attempted to run away, but Kraintz
grabbed defendant by his backpack. Defendant then spun around and grabbed Kraintz
around the waist. In response, Kraintz threw several punches, landing one on the back of
defendant’s head. Kraintz then kneed defendant in the stomach, and they both fell to the
ground. Kraintz was able to pin defendant on the ground, but defendant pulled his hands
away when Kraintz tried to grab his hand. Mortlock and another officer (who had just
arrived) assisted Kraintz and arrested defendant. Defendant did not attempt to grab
Kraintz’s gun or other tools or weapons on the officer’s belt.
1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

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Officer Mortlock testified that Kraintz asked defendant if he was on parole, and as
he was getting out of the car, he reached through the window, grabbed defendant, and
told defendant to stop. She did not see defendant push Kraintz, but she recalled that
Kraintz initially grabbed defendant because he was trying to get away. Mortlock got out
of the car and saw defendant’s arms around Kraintz’s waist. She saw Kraintz knee
defendant and then strike him two or three times. Defendant and Kraintz fell to the
ground, and she went to the front of the car to help Kraintz. Defendant actively resisted
the officers’ attempts to arrest him. Another officer then arrived, and they arrested
defendant.
Defendant’s statements to police were admitted at trial. He stated Kraintz
approached him and asked his name. He told Kraintz his name was “Jimbo,” and Kraintz
told him he was on parole. Kraintz pushed him, and they fell to the ground. Kraintz then
“continually punched [him] in the face.” He did not fight back.
During the altercation, Kraintz sustained a fracture with comminution of the base
of the fifth metacarpal on his right hand. He wore a splint for a week and a soft cast for
seven weeks. He felt moderate pain, but he did not require surgery and did not lose
feeling in his hand. After the cast was removed, Kraintz underwent physical therapy.
The jury found defendant guilty of proximately causing serious bodily injury
while resisting a peace officer (Pen. Code, § 148.10, subd. (a); count one),2 resisting an
executive officer in the performance of duty (§ 69; count two), and providing false
identification to a police officer (§ 148.9, subd. (a); count three). In bifurcated
proceedings, the jury found true allegations that defendant sustained four prior
convictions and served three prior prison terms, including an offense constituting a
violent felony. (§ 667.5, subd. (c).)
2 Further undesignated statutory references are to the Penal Code.

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The trial court sentenced defendant to two years in prison for count one, doubled
to four years for the prior strike, and two years for count two, doubled to four for the
prior strike and stayed pursuant to section 654. The court also imposed a sentence of 180
days for count three, concurrent to the sentence for count one, and three consecutive one-
year terms for defendant’s three prior convictions. (§ 667.5, subd. (b).)
DISCUSSION
I
Insufficient Evidence of False Identification
Defendant contends that insufficient evidence supported the false identification
conviction. The People properly concede the issue.
The standard for judicial review of a criminal conviction challenged as lacking
evidentiary support is well established: “[T]he court must review the whole record in the
light most favorable to the judgment below to determine whether it discloses substantial
evidence -- that is, evidence which 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. Johnson (1980) 26 Cal.3d 557, 578.) “If the verdict is supported by
substantial evidence, we must accord due deference to the trier of fact and not substitute
our evaluation of a witness’s credibility for that of the fact finder.” (People v. Koontz
(2002) 27 Cal.4th 1041, 1078.) A conviction will not be reversed for insufficient
evidence unless it appears “ ‘that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].’ [Citation.]” (People v. Bolin (1998) 18
Cal.4th 297, 331.)
The jury found defendant guilty of violating section 148.9, subdivision (a), which
provides in part: “Any person who falsely represents or identifies himself or herself as
another person or as a fictitious person to any peace officer . . . upon a lawful detention
or arrest of the person . . . to evade the proper identification of the person by the
investigating officer is guilty of a misdemeanor.” (In re Voeurn O. (1995)

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35 Cal.App.4th 793, 795-796.) To violate section 148.9, a person must be under lawful
detention or arrest at the time he or she provides false identification. (Voeurn O., at p.
796.)
When defendant provided a false name to Kraintz, the officers were still in their
patrol car, they had not activated the car’s overhead lights, and neither officer had
commanded defendant to do anything. In short, defendant was neither detained nor
arrested at the time he provided false information. (See Florida v. Bostick (1991) 501
U.S. 429, 434 [merely approaching someone and asking a few questions is a consensual
encounter, not a seizure]; People v. Terrell (1999) 69 Cal.App.4th 1246, 1251, 1253-1254
[consensual encounter when officers ask for and check identification; seizure only occurs
“when the officer, by means of physical force or show of authority, in some manner
restrains the individual’s liberty”].) Therefore, the conviction is not supported by
substantial evidence, and we reverse. Because the court imposed a concurrent sentence
for that count, there is no need to remand.
II
Lesser Included Offense Instruction
Defendant argues the trial court prejudicially erred in failing to instruct sua sponte
on simple assault (§ 240) as a lesser included offense of resisting an executive officer in
the performance of duty (§ 69). He contends a reasonable jury could have found that
Officer Kraintz used unreasonable or excessive force in detaining him and that he used
unreasonable force in responding to Kraintz’s use of force. We disagree.
A. The Law
“The court must instruct on a lesser included offense, even if not requested to do
so, ‘when the evidence raises a question as to whether all of the elements of the charged
offense are present and there is evidence that would justify a conviction of such a lesser
offense.’ [Citations.]” (People v. Melton (1988) 44 Cal.3d 713, 746.) But a trial court is
only required to instruct on a lesser included offense where there is substantial evidence

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that, if believed, absolves the defendant’s guilt on the greater offense, but not on the
lesser. (People v. Waidla (2000) 22 Cal.4th 690, 733.) “Evidence is substantial if ‘a
reasonable jury could find [it] persuasive.’ [Citation.]” (People v. Millbrook (2014) 222
Cal.App.4th 1122, 1137.) In addressing whether substantial evidence exists of a lesser
included offense, trial courts “ ‘should not evaluate the credibility of witnesses, a task for
the jury.’ ” (Ibid.) Whether a trial court improperly failed to instruct on a lesser included
offense is reviewed de novo. (Waidla, at p. 733.)
“To determine whether a lesser offense is necessarily included in the charged
offense, one of two tests (called the ‘elements’ test and the ‘accusatory pleading’ test)
must be met. The elements test is satisfied when ‘ “all the legal ingredients of the corpus
delicti of the lesser offense [are] included in the elements of the greater offense.”
[Citation.]’ [Citations.] Stated differently, if a crime cannot be committed without also
necessarily committing a lesser offense, the latter is a lesser included offense within the
former. [Citations.] [¶] Under the accusatory pleading test, a lesser offense is included
within the greater charged offense ‘ “if the charging allegations of the accusatory
pleading include language describing the offense in such a way that if committed as
specified the lesser offense is necessarily committed.” [Citation.]’ [Citations.]”
(People v. Lopez (1998) 19 Cal.4th 282, 288-289.)
A violation of section 69 can occur in two circumstances. “ ‘The first is
attempting by threats or violence to deter or prevent an officer from performing a duty
imposed by law; the second is resisting by force or violence an officer in the performance
of his or her duty.’ [Citation.]” (People v. Smith (2013) 57 Cal.4th 232, 240.) “The
second way of violating section 69 expressly requires that the defendant resist the officer
‘by the use of force or violence,’ and it further requires that the officer was acting
lawfully at the time of the offense. [Citation.]” (Id. at p. 241.)

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Assault is defined as “ ‘an unlawful attempt, coupled with a present ability, to
commit a violent injury on the person of another.’ [Citation.]” (People v. Chance (2008)
44 Cal.4th 1164, 1167.) An “assault does not require a specific intent to cause injury or a
subjective awareness of the risk that an injury might occur. Rather, assault only requires
an intentional act and actual knowledge of those facts sufficient to establish that the act
by its nature will probably and directly result in the application of physical force against
another.” (People v. Williams (2001) 26 Cal.4th 779, 790.)
B. Analysis
Here, the amended information alleged that defendant “did unlawfully attempt by
means of threats and violence to deter and prevent [police officers] from performing a
duty imposed upon such officer by law, and did knowingly resist by the use of force and
violence said executive officer in the performance of his/her duty.” Because the
information alleged in the conjunctive that defendant violated both forms of section 69, it
was not possible for defendant to violate section 69 as charged without also committing
simple assault. Therefore, under the accusatory pleading test, simple assault is a
necessarily included offense of resisting an executive officer.
Defendant relies on People v. Brown (2016) 245 Cal.App.4th 140, to argue that a
reasonable jury could have found him guilty of assault but not resisting an executive
officer. The court in Brown observed, “ ‘[w]hen excessive force is used by a defendant in
response to excessive force by a police officer . . . defendant [may] be convicted, and
then the crime may only be a violation of section 245, subdivision (a) or of a lesser
necessarily included offense within that section,’ such as section 240. [Citations.]” (Id.
at p. 155.) In Brown, two police officers testified that the defendant assaulted them while
resisting arrest. The defendant testified that he lay on the ground, not resisting, after
initially fleeing from the officers. An officer then jumped on him and hit him in the head
three times. The jury found defendant guilty of violating section 69. The appellate court
concluded that the trial court should have instructed on the lesser included offense of

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simple assault because the jury could have credited the defendant’s version of events that
the officers used unreasonable or excessive force while also crediting the officers’
version of events that the defendant responded to their use of excessive force with
unreasonable force of his own. (Brown, at pp. 154-155.) Under those facts, the court
concluded, the jury could have found defendant guilty of assault and not of resisting an
executive officer. (Id. at p. 155.)
Brown is distinguishable from the instant case. Here, substantial evidence does
not support a finding that defendant could be guilty of assault but not guilty of resisting
an executive officer. If the jury credited the officers’ testimony, a reasonable jury could
not find that Kraintz used excessive or unreasonable force in grabbing defendant by the
backpack. The test for determining whether an officer used unreasonable or excessive
force in making an arrest “is whether the amount of force the officers used in making the
arrest was objectively unreasonable given the circumstances they faced.” (Allgoewer v.
City of Tracy (2012) 207 Cal.App.4th 755, 763.) At least three factors are considered in
determining objective reasonableness: (1) the severity of the offense for which the
suspect was arrested, (2) the immediacy of the threat that the suspect posed to the officer,
and (3) whether the suspect was fleeing or actively resisting. (Graham v. Connor (1989)
490 U.S. 386, 396.) By grabbing defendant’s backpack, Kraintz used objectively
reasonable force in stopping defendant from leaving the scene.
If the jury credited defendant’s version of events, there is substantial evidence that
Kraintz used excessive or unreasonable force in detaining defendant. Defendant told an
officer at the scene that Kraintz pushed him and “continually” punched him. He also said
he did not fight back. In that scenario, a reasonable jury could find that Kraintz used
unreasonable or excessive force, but there is no evidence defendant exerted unreasonable
force in responding to Kraintz’s use of force. Therefore, defendant would not be guilty
of resisting an executive officer or assault.

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If the jury credited portions of both the officers’ testimony and the defendant’s
statements, as in Brown, there is still not substantial evidence that defendant committed
assault but not resisting arrest. In that scenario, Kraintz pushed defendant to the ground
and then “continually” punched him. In response, Kraintz and defendant somehow rose
to their feet--a fact not supported by the evidence--and defendant grabbed Kraintz around
the waist. Beyond the fact that this scenario is completely unsupported by the evidence,
we observe that defendant’s response to being pushed and punched would be at most
proportional to, and certainly not excessive to, the unreasonable or excessive force
exerted by Kraintz. Therefore, defendant would be guilty of neither resisting an
executive officer nor simple assault.
Because a reasonable jury could not find that defendant was guilty of simple
assault and not guilty of resisting an executive officer, the trial court did not err by failing
to instruct the jury on simple assault.
III
Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct in closing argument by
misstating the law regarding serious bodily injury by asserting that a bone fracture
necessarily constitutes a serious bodily injury, regardless of severity. We disagree that
the statement was misconduct.
Defendant concedes that he did not object to the perceived prosecutorial
misconduct or request an admonishment at trial, and therefore his claim is forfeited. (See
People v. Perez (2018) 4 Cal.5th 421, 450 [“To avoid forfeiture of a claim of
prosecutorial misconduct, a defendant must object and request an admonition”].) He
argues in the alternative that his trial counsel was constitutionally ineffective by failing to
object to the prosecutor’s misstatement. He also requests that we use our discretion to
consider the issue here because it affects his fundamental rights. (See People v. Williams
(1998) 17 Cal.4th 148, 161, fn. 6; People v. Covarrubias (2016) 1 Cal.5th 838, 894 [a

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prosecutor’s misconduct violates the United States Constitution when it “infects the trial
with such unfairness as to make the conviction a denial of due process”].) In the interest
of judicial economy given defendant’s claim of ineffective assistance of counsel, we
reach the merits of the claim.
A. Background
The trial court instructed the jury with CALCRIM No. 2655, which includes a
definition of serious bodily injury: “A serious bodily injury means a serious impairment
of physical condition. Such an injury may include, but is not limited to: bone fracture,
protracted loss or impairment of function of any bodily member or organ, a wound
requiring extensive suturing, and serious disfigurement.” The court orally instructed the
jury with an almost identical instruction: “A serious bodily injury means a serious
impairment to physical condition. Such an injury may include, but is not limited to, bone
fracture, protracted loss or impairment of function of any bodily member or organ, a
wound requiring extensive suturing, or serious disfigurement.”
In closing, the prosecutor argued: “[U]nder the law, when you are given a specific
definition, you are expected to abide by that definition and what it is under the law. And
under the law, it’s very clear. There’s no disputing that a bone fracture constitutes
serious bodily injury.” On rebuttal, the prosecutor argued: “On the item of he did not
cause the serious bodily injury, [defense counsel] argued this is not serious bodily injury,
members of the jury, this slide I have quoted to you directly out of law. This is the law
that was given, came from the legislature through the Judicial Council. I don’t choose
these words. They were chosen by people much smarter than me who have determined
and have defined specifically under the law what serious bodily injury is, and they chose
the words that includes ‘bone fracture.’ In no uncertain terms they said, ‘Such injuries
include, but are not limited to, bone fracture and the protracted loss of impairment of a
bodily member.’ [¶] Those were those words. It’s right out of the law. This is
unquestionably a serious bodily injury.”

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B. Law and Analysis
It is improper for a prosecutor to misstate the law. (People v. Hill (1998) 17
Cal.4th 800, 829.) Nevertheless, “[a] prosecutor is given wide latitude to vigorously
argue his or her case and to make fair comment upon the evidence, including reasonable
inferences or deductions that may be drawn from the evidence. [Citation.]” (People v.
Ledesma (2006) 39 Cal.4th 641, 726.) “ ‘When, as here, the point focuses on comments
made by the prosecutor before the jury, the question is whether there is a reasonable
likelihood that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.’ [Citation.]” (People v. Thomas (2012) 53 Cal.4th 771, 797.)
“Serious bodily injury” for purposes of section 148.10 is defined as “a serious
impairment of physical condition, including, but not limited to, the following: loss of
consciousness; concussion; bone fracture; protracted loss or impairment of function of
any bodily member or organ; a wound requiring extensive suturing; and serious
disfigurement.” (§ 243, subd. (f)(4).)
Despite the plain language of the statute stating that a bone fracture is a serious
bodily injury, defendant cites People v. Nava (1989) 207 Cal.App.3d 1490 for the
proposition that not all bone fractures are necessarily serious bodily injuries. Nava
involved a jury instruction stating that great bodily injury under section 12022.7 means “a
significant or substantial physical injury” and that “a bone fracture was a significant and
substantial injury within the meaning of section 12022.7.” (Id. at p. 1495.) The Nava
court concluded that the instruction amounted to a directed verdict by removing from the
trier of fact the duty to determine whether the physical injury was “substantial and
significant.” (Id. at p. 1498.) In so doing, the court referred to the definition of serious
bodily injury under then section 243, subdivision (e) as a “serious impairment of physical
condition.” (Nava, at p. 1497.) The court observed that “bone fracture” is listed as an
example of a serious impairment. (Ibid.) The court then stated, “In the context of the
section, and when viewed in light of the above analysis of section 12022.7, we do not

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take this to mean that every bone fracture is serious bodily injury but merely that it can be
if it results in a serious impairment of physical condition.” (Id. at pp. 1497-1498.)
The court in Nava was concerned with an instruction regarding great bodily injury
under section 12022.7, not section 243, and therefore the court’s discussion of section
243 is dicta. Moreover, the plain language of section 243, subdivision (f)(4) provides
that a bone fracture is a serious bodily injury. Finally, the Nava case is not binding on
this court. Although defendant points to language from our Supreme Court as additional
support for his argument that the “injuries listed in CALCIM No. 2655 are merely
illustrative,” that case addressed a different instruction and crime altogether. In People v.
Santana (2013) 56 Cal.4th 999, our high court discussed serious bodily injury in the
context of instructing the jury on mayhem using CALCRIM No. 803. The court saw “no
basis . . . to superimpose a wholesale definition of ‘serious bodily injury’ from section
243(f)(4) in the [mayhem] instruction” and ultimately decided that proof of serious bodily
injury is not a separate element of mayhem. (Santana, at p. 1010.) The court in Santana
did not even mention in passing, much less opine on, the issue presented here; the
language from Santana cited by defendant is inapposite.
Because the prosecutor’s statements regarding serious bodily injury were legally
correct, the prosecutor did not commit misconduct.
IV
Pitchess Motion
Defendant asks us to conduct an independent review of the sealed records of the
trial court’s hearing on his Pitchess motion to obtain discovery of the relevant officer’s
personnel records. (See People v. Mooc (2001) 26 Cal.4th 1216, 1225-1226.) We have
done so and find no error.
With a Pitchess motion, a criminal defendant can “compel discovery” of certain
information in police officer personnel files. The defendant must first demonstrate good
cause by making “general allegations which establish some cause for discovery” of the

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information and by showing how it would support a defense to the charge against him.
(Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 536-537; see Evid. Code, § 1043,
subd. (b)(3).) If the trial court concludes good cause has been established, the custodian
of the officer’s records brings to court all the potentially relevant records and, in camera,
the trial court determines whether any information from the records need be disclosed to
the defense. (People v. Mooc, supra, 26 Cal.4th at p. 1226.)
We will not disturb a trial court’s ruling on a Pitchess motion absent an abuse of
discretion. (Alford v. Superior Court (2003) 29 Cal.4th 1033, 1039.) Having
independently reviewed the sealed transcript of the Pitchess proceeding, we conclude the
court followed proper Pitchess procedures and did not erroneously withhold any
information. (See People v. Fuiava (2012) 53 Cal.4th 622, 646-648.)
DISPOSITION
The conviction for providing false identification to a police officer (§ 148.9, subd.
(a); count three) is reversed. As modified, the judgment is affirmed.
/s/
Duarte, J.
We concur:
/s/
Blease, Acting P. J.
/s/
Murray, J.

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