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Name: People v. Lacefield
Case #: B191217
Court: CA Court of Appeal
District 2 DCA
Division: 8
Opinion Date: 11/28/2007

Penal Code section 148, subdivision (a)(1) is a lesser included offense of section 69. Lacefield was convicted of resisting an officer in violation of Penal Code section 69. On appeal he contended that the trial court erred when it refused to instruct on section 148 (a)(1) as a lesser included offense. The appellate court agreed and reversed the conviction. Section 69 has two separate ways in which an offense can be committed; the first is attempting by threats or violence to deter the officer, and the second is resisting by force the officer in performance of his duty. (Attempting to deter, the first type, and actually resisting, the second type.) Section 148 (a)(1) is a lesser included offense of the second type. Here, there was substantial evidence from which the jury could have found that appellant violated section 148 (a)(1) and not the second type of section 69. The error was prejudicial because the jury was given no alternative but a not guilty verdict if it believed that there was no unlawful use of force. It was reasonably probable that appellant could have obtained a more favorable outcome if there had been an instruction on the lesser included offense, and reversal was therefore required.