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Name: People v. Smith
Case #: B223181
Court: CA Court of Appeal
District 2 DCA
Division: 1
Opinion Date: 02/24/2012
Subsequent History: Rev. granted 5/9/12 (S201186)

The offense of resisting arrest, Penal Code section 148, is not a lesser included offense of Penal Code section 69 and there is no duty to instruct on it as a lesser included offense. There are two separate ways that Penal Code section 69 can be committed: attempting by threats or violence to deter an officer from performing a duty imposed by law; or, resisting by force or violence an officer in the performance of a lawful duty. Even though the offense was alleged to include both alternatives, the prosecutor elected at trial to rely only on the second form. At the prosecution’s request, the jury was instructed on only the elements for the second form of the offense. Despite the instruction, the trial court was correct to refuse the request to instruct on the lesser offense of Penal Code section 148 because it is not a lesser included offense based on either the statutory elements or the accusatory pleading test.

In a case in which the trial court found the 150-years-to-life sentence to be “excessive,” the sentence was vacated and remanded to consider exercising discretion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. There was an abuse of discretion in the denial of a motion to strike a prior conviction to avoid a Three Strikes sentence. The trial court failed to consider the defendant’s mental illness, the impropriety of his housing in county jail at the time of the offense because the sheriff had neglected the duty to deliver him to state prison, and the relatively minor nature of the commitment offenses.