Robert Alan Wilson v. KEN CLARK, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ALAN WILSON,
Petitioner - Appellant,
v.
KEN CLARK, Warden,
Respondent - Appellee.
No. 08-55758
D.C. No. 8:05-cv-00446-GPS-SGL
MEMORANDUM *
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted February 1, 2010
Pasadena, California
Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.
Robert Alan Wilson appeals the denial of his federal habeas petition
challenging his conviction for violating California Penal Code § 69, resisting an
executive officer. Wilson argues that there was insufficient evidence that Officer
FILED
MAR 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 This error is particularly problematic because the defendant’s use of force
is an element of § 69. See Cal. Penal Code § 69; People v. Lacefield, 68 Cal. Rptr.
3d 508, 513 (Ct. App. 2007). The state court’s reasoning would find lawful any
action by an officer, no matter how egregious, as long as the officer refrained from
using excessive force.
2
Ellison was performing a lawful duty, an element of § 69, to sustain a conviction.
We reverse the district court and grant Wilson’s petition for habeas relief.
The state court decision denying Wilson’s sufficiency of the evidence claim
was unreasonable under AEDPA. The state court’s conclusion that Officer Ellison
was performing a lawful duty merely because Officer Ellison did not use excessive
force in detaining Wilson effectively reads the “lawful duty” element out of § 69
and is thus contrary to Jackson v. Virginia, 443 U.S. 307 (1979).1 See Goldyn v.
Hayes, 444 F.3d 1062, 1070 (9th Cir. 2006). The state court’s decision would find
an arbitrary, malicious, or even knowingly illegal action by the officer to be
“lawful.” Moreover, the decision relies on both the formal fallacy of denying the
antecedent—concluding that because Officer Ellison’s action was not unlawful due
to the use of excessive force, the action must have been lawful—and on an illogical
application of § 69 to the privilege to use force against an officer who is using
excessive force, see People v. Curtis, 450 P.2d 33, 37 (Cal. 1969).
Having concluded that the state court decision was unreasonable, we assess
the substance of Wilson’s sufficiency claim without the deference that AEDPA

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2 The dissent concludes that “the California Court of Appeal did not
unreasonably apply precedent in holding that Ellison reasonably suspected that
Wilson posed a danger to himself or others on account of public drunkenness.”
The California Court of Appeal made no such holding. Instead, it rested its
decision solely on the excessive force analysis we describe above.
3
otherwise requires. Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc).2
Wilson is correct that Kolender v. Lawson, 461 U.S. 352, 361 (1983), precluded a
finding that Wilson’s detention was justified by California Penal Code § 647(e).
Because federal courts are bound by the state court’s construction of § 647(e), see
BMW of N. Am. v. Gore, 517 U.S. 559, 577 (1996), the Supreme Court’s
conclusion that § 647(e) was unconstitutionally vague applied to the statute itself.
See also Kolender, 461 U.S. at 356-61. We further agree with Wilson’s contention
that there was insufficient evidence to find that Wilson’s detention was lawful
under California Penal Code § 647(f). Section 647(f) requires that the individual
be so intoxicated that he or she is impeding the use of a public right of way or is

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3 It is here in particular that the analysis by our colleague in dissent goes
awry: there is no evidence suggesting a reasonable suspicion that Wilson, who was
sitting down on the stairs and was neither slurring nor swaying, was dangerously
intoxicated. While Officer Ellison may have been disconcerted by Wilson’s
rudeness, Wilson was within his rights to vulgarly reject the officer’s efforts to
question him. And although Officer Ellison may have preferred to talk to Wilson
at the bottom of the stairs, absent reasonable suspicion that Wilson was committing
a crime, Officer Ellison lacked authority to demand that Wilson move—without
any evidence that Wilson was committing a crime, the dissent’s allusion to officer
safety is bootstrapping. Finally, that the area where Officer Ellison encountered
Wilson was one in which shopkeepers had complained of vandalism provides no
evidence that Wilson in particular was committing a crime.
4
“unable to exercise care for his or her own safety or the safety of others.”3 See Cal.
Penal Code § 647(f). The mere smell of alcohol, placement of a cup several feet
from Wilson, and Wilson’s vulgar refusal to speak with the police simply did not
provide Officer Ellison with reasonable suspicion to detain Wilson for possibly
violating § 647(f). Cf. Sundance v. Mun. Court, 729 P.2d 80, 97 n.17 (Cal. 1986)
(en banc) (noting the difficulty in proving that a defendant is intoxicated to this
degree).
The district court decision is REVERSED and the petition for habeas corpus
is GRANTED as to Wilson’s conviction under § 69.

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Wilson v. Clark, No. 08-55758
GRABER, Circuit Judge, dissenting:
The only issue before us is whether sufficient evidence supported Robert
Alan Wilson’s conviction for resisting an executive officer, including whether the
officer was performing a lawful duty when he detained Wilson. Because sufficient
evidence supported Wilson’s conviction, I respectfully dissent.
The California Court of Appeal’s statement of facts, which is not challenged
for accuracy, set forth that Wilson was seated on the stairs of a commercial
building, closed for the evening, in an area that had been vandalized and used by
transients for urination and defecation. Detective Roy Ellison and his partner, both
dressed in gang unit uniforms, asked Wilson about his well-being and asked
whether he knew that he was in a closed commercial area. Wilson responded
angrily by cursing at the officers. Ellison detected the smell of alcohol coming
from Wilson and noticed an open container sitting next to him on the stair. Ellison,
suspecting that Wilson might be too intoxicated for his own safety and that of
others, asked Wilson for identification and then asked him to come down the stairs.
Wilson again cursed angrily and continued to refuse in the same vulgar way when
Ellison repeated his request. Fearing that Wilson’s anger was escalating, Ellison
became concerned for the officers’ safety because Wilson was seated about 10 feet
above them on the staircase. He climbed up next to Wilson, placed one hand on
FILED
MAR 29 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
his shoulder, and grasped Wilson’s wrist with his other hand. As Ellison attempted
to stand Wilson up, Wilson strained against Ellison’s move, and both men fell
down the stairs. At the base, Wilson regained his footing first and began flailing
wildly about, landing a punch to Ellison’s nose, sending blood in all directions.
Both men landed on the ground, and Ellison managed to gain the upper position,
which allowed his partner to subdue Wilson by using pepper spray.
When reviewing the sufficiency of the evidence, "the relevant question is
whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979). The
unchallenged facts here gave rise to a reasonable suspicion that Wilson was
committing the offense of public drunkenness as a danger to himself or others at
the time that the detention began. Thus, the California Court of Appeal did not
unreasonably apply precedent in holding that Ellison reasonably suspected that
Wilson posed a danger to himself or others on account of public drunkenness.

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