People v. Aldabarios CA3

Filed 10/23/26 P. v. Aldabarios CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yolo) THE PEOPLE, C102189 Plaintiff and Respondent, (Super. Ct. No. CR2024-1073) v. FERNANDO ALDABARIOS, Defendant and Appellant. A jury found defendant Fernando Aldabarios1 guilty of four offenses, including felony resisting an executive officer by force, threats, or violence and misdemeanor resisting and obstructing a peace officer (counts 1 and 5). Defendant raises two claims on appeal. First, he contends the trial court erred when it did not stay the sentence on either count 1 or count 5 because the course of conduct underlying both offenses reflected a single intent and objective. Second, he contends the trial court prejudicially erred when it failed to sua sponte instruct the jury on lawful performance for both counts 1 and 5. We 1 Defendant’s name appears as “Fernando Aldabarios,” “Fernando Aldaba Rios,” and “Fernando Aldaba-Rios” in the record. We use defendant’s name as it appears on the abstract of judgment. 1 agree with defendant’s first claim, but not the second. Accordingly, we modify the judgment to stay defendant’s sentence on count 52 and affirm the judgment as modified. FACTUAL AND PROCEDURAL BACKGROUND In March 2024, two teenage girls were sitting outside a shopping center when a man offered them a beer, which one of the girls took. The man, later identified as defendant, sat down and started talking with them. After about 10 minutes, defendant grabbed the hand of one of the girls. Both girls got up, screamed, and ran towards an employee from a nearby store. Another employee from that store called police. West Sacramento Police Officers Elijah Morgera and Michael Muro responded to the call and approached defendant. Based on defendant’s slurred speech, unsteady gait, and the smell of alcohol, Officer Morgera concluded defendant was intoxicated. Based on defendant’s intoxication, the allegation of a possible sexual assault of a minor, and defendant’s lack of cooperation, Officer Morgera handcuffed defendant and stood him in front of Officer Muro’s patrol car. Officer Muro’s body camera captured footage of defendant’s interaction with the officers after they detained him, which was played for the jury. The footage showed defendant telling the officers that he “could fuck both of [them] up.” The footage also showed Officer Morgera telling defendant that the officers needed to figure out if defendant was the person who tried to sell alcohol to minors and assaulted a minor; if they had the wrong person, they would let him go. In response, defendant demanded the officers “get [him] out of these fucking handcuffs.” When they said he was not going to 2 Where a trial court erroneously fails to stay a term under Penal Code section 654, appellate courts usually remand unless remand would be futile because the record clearly indicates which sentence the court trial would stay. (See People v. Gutierrez (2014) 58 Cal.4th 1354, 1391; see also People v. Alford (2010) 180 Cal.App.4th 1463, 1473.) As discussed infra, because the record clearly indicates the trial court would stay the sentence on count 5, not count 1, the opinion modifies the judgment on appeal and stays the sentence on count 5. 2 be released and was being detained, defendant responded by repeatedly calling the officers “bitch.” When Officer Muro asked defendant how much he had to drink, defendant smirked, insulted the officer, and called him a “bitch” again. Officer Morgera left to interview the girls and other witnesses while Officer Muro stayed with defendant. Soon after Officer Morgera walked away, defendant told Officer Muro that he was going to sit on the curb. Officer Muro said no, defendant would stay where he was. Defendant repeated he was going to sit on the curb, and Officer Muro again said no, defendant was going to stay standing where he was or sit in the patrol car. Defendant asked why he could not sit on the curb, and Officer Muro stated defendant “[didn’t] run the show.” Defendant responded, “[N]obody[’s] trying to run the fucking show.” When defendant made a move to sit on the curb anyway, Officer Muro placed his hand on defendant’s chest, said “let’s go in the car,” and steered defendant toward the rear door of the patrol car. Defendant resisted, stating he was not going into the patrol car and repeatedly telling Officer Muro to “get the fuck off [him].” As Officer Muro opened the door to place defendant in the backseat, defendant headbutted Officer Muro, causing a small laceration on the inside of the officer’s lip. After the headbutt, Officer Muro called for backup and struggled with defendant while waiting for help. Defendant continued resisting, kicking the officer in his upper body. It took three officers to place defendant completely into the patrol car. Officer Muro later searched defendant and found a white crystallized substance wrapped in plastic. The prosecution charged defendant with five counts: felony resisting an executive officer by means of threats, force, or violence (count 1); misdemeanor contributing to the delinquency of a minor (count 2); misdemeanor possession of a controlled substance (count 3); misdemeanor battery (count 4); and misdemeanor resisting or obstructing a police officer (count 5). A jury found defendant guilty on counts 1, 2, 4, and 5 and 3 acquitted him of count 3, possession of a controlled substance. In a bifurcated proceeding, the jury also found three sentencing allegations true. The trial court sentenced defendant to a two-year term on count 1 and to 90 days each on counts 2, 4, and 5 to run concurrent to each other and to count 1, for an aggregate term of two years. Defendant appeals. DISCUSSION I Penal Code,3 Section 654 A Additional Factual And Procedural Background During closing arguments, the prosecutor argued that the acts that constituted the acts of force and violence against Officer Muro for count 1 overlapped with the acts that served as a basis for count 5. Specifically, she identified “the headbutt that Officer Muro testified about and then the kicking that was also testified to” as the acts of force and violence that served as the factual basis for count 1. In discussing count 5, she stated: “There’s quite a bit of overlap between [c]ount 1 and [c]ount 5, but as has been succinctly said by, I think, multiple parties in this courtroom is that it doesn’t include the act of force or violence. So it really goes to the fact that … defendant was trying to prevent Officer Muro from just simply doing his job that day …. [¶] So did … defendant act in a way that obstructed Officer Muro from doing his duties as a police officer? He verbally might have tried to prevent him, and when that didn’t work, he moved on to physically preventing him and physically obstructing him from doing his job by headbutting him in the face, by kicking him. [¶] So I’d argue all of that stuff from 3 Undesignated section references are to the Penal Code. 4 [c]ount 1 can -- all of the evidence that you can consider for that can also be applied when you address the issues in [c]ount 5. You just don’t need to find the element of force or violence.” Defense counsel agreed with the prosecution’s argument that count 1 and count 5 were “basically the same.” Counsel also agreed that the use of force distinguished the two offenses, but argued that defendant’s use of force was accidental, not intentional. B Legal Principles And Standard Of Review “Section 654 precludes multiple punishments for a single act or indivisible course of conduct.” (People v. Hester (2000) 22 Cal.4th 290, 294.) “[T]he statutory reference to an ‘act or omission’ may include not only a discrete physical act but also a course of conduct encompassing several acts pursued with a single objective.” (People v. Corpening (2016) 2 Cal.5th 307, 311 (Corpening).) Therefore, “whether a defendant may be subjected to multiple punishment[s] under section 654 requires a two-step inquiry.” (Ibid.) First, the court considers whether the offenses “were completed by a ‘single physical act.’ [Citation.] If so, the defendant may not be punished more than once for that act. Only if [the court] conclude[s] that the case involves more than a single act— i.e., a course of conduct—do we then consider whether that course of conduct reflects [that the defendant harbored] a single ‘ “intent and objective” ’ or multiple intents and objectives.” (Corpening, supra, 2 Cal.5th at p. 311.) “ ‘If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one.’ ” (People v. Correa (2012) 54 Cal.4th 331, 336.) “If, on the other hand, [the] defendant harbored ‘multiple criminal objectives,’ which were independent of and not merely incidental to each other, [the defendant] may be punished for each statutory violation committed in pursuit of each objective, ‘even though the violations shared common acts or were parts of an otherwise indivisible course of 5 conduct.’ ” (People v. Harrison (1989) 48 Cal.3d 321, 335.) Even if a course of conduct is “ ‘directed to one objective,’ ” we may still find that the course of conduct gives rise to multiple punishments if the acts are “temporally separated in such a way as to afford the defendant[s] [the] opportunity to reflect and to renew [their] intent before committing the next [offense].” (People v. Gaio (2000) 81 Cal.App.4th 919, 935.) We review a ruling on whether section 654 applies to a sentence for substantial evidence. (People v. Tom (2018) 22 Cal.App.5th 250, 260.) “In the absence of an explicit ruling by the trial court at sentencing, we infer that the court made the finding appropriate to the sentence it imposed, i.e., either applying section 654 or not applying it.” (People v. Mejia (2017) 9 Cal.App.5th 1036, 1045.) We will uphold the trial court’s implicit or explicit section 654 finding if substantial evidence supports it. (Tom, at p. 260; see Mejia, at p. 1045.) C Analysis Given that the trial court sentenced defendant to concurrent terms on count 1 and count 5 without staying either count, we conclude the court made an implied finding that section 654 did not apply. (People v. Mejia, supra, 9 Cal.App.5th at p. 1045.) Defendant contends the court’s implied finding is not supported by substantial evidence because both convictions “were sustained by the same act or acts” or “shared a common intent or objective,” which was to sit on the curb and not be detained in the patrol car. The People contend the record contains substantial evidence that the offenses were committed with separate criminal objectives. Specifically, for count 5, defendant “obstructed Officer Muro from maintaining control of an otherwise volatile situation” when defendant disobeyed Officer Muro’s order to remain in front of the patrol car and began moving “toward the curb.” Defendant had a different objective for count 1, which was “to free himself of the officer’s grasp” by kicking and headbutting the officer. Defendant has the better argument. 6  The evidence at trial showed defendant’s acts, beginning with his movement to sit on the curb in defiance of Officer Muro’s orders and continuing with his physical assault of the officer when being placed in the patrol car, constituted an indivisible course of conduct spanning approximately 60 seconds. (Corpening, supra, 2 Cal.5th at p. 311.) Defendant’s course of conduct was motivated by his intent to resist Officer Muro’s instructions to either remain standing or sit in the police car, first by verbal refusal and then physical refusal. There was no identifiable break between defendant’s verbal and physical acts that would support a finding his acts were “temporally separated” and therefore subject to multiple punishments. (People v. Gaio, supra, 81 Cal.App.4th at p. 935.) Moreover, this indivisible course of conduct reflected “a single ‘ “intent and objective,” ’ ” which was to sit on the curb while they waited for Officer Morgera to complete his investigation. (Corpening, supra, 2 Cal.5th at p. 311.) Nothing in the record suggests defendant formed a new objective to resist Officer Muro when the officer tried to put him in the patrol car that was independent of the objective he had when he first defied Officer Muro’s warning that he would be placed in the patrol car if he tried to sit on the curb. (People v. Gaio, supra, 81 Cal.App.4th at p. 935.) As the prosecution argued during closing, defendant’s conduct had a single objective: “[D]efendant was trying to prevent Officer Muro from just simply doing his job that day …. [¶] … He verbally might have tried to prevent him, and when that didn’t work, he moved on to physically preventing him and physically obstructing him from doing his job by headbutting him in the face, by kicking him. [¶] So I’d argue all of that stuff from [c]ount 1 can -- all of the evidence that you can consider for that can also be applied when you address the issues in [c]ount 5.” Because the record does not support the trial court’s implied finding that section 654 does not apply, the court erred when it did not stay defendant’s sentence on either count 1 or count 5. (People v. Correa, supra, 54 Cal.4th at p. 336.) 7  Having concluded that the trial court erred by not staying the sentence on either count 1 or count 5, we now consider whether remand is required to allow the trial court to exercise its discretion by deciding which sentence to stay. (See § 654.) Where remand would be futile, we may exercise our authority under section 1260 to correct an error and modify the judgment on appeal. (People v. Alford, supra, 180 Cal.App.4th at p. 1473; see People v. Gutierrez, supra, 58 Cal.4th at p. 1391 [remand not required when the record clearly indicates how the court would have ruled with an accurate understanding of the applicable law].) Based on the trial court’s remarks during sentencing, we conclude the record clearly indicates the court would elect to stay the concurrent 90-day term on count 5 instead of the two-year term on count 1. (People v. Gutierrez, supra, 58 Cal.4th at p. 1391.) Specifically, in formulating defendant’s sentence, the court carefully considered defendant’s criminal history, including that the current case was his third felony, along with his failure to abide by conditions of release as shown by his absconding pending sentencing. Considering defendant’s record and his “ongoing criminality,” the court determined that “two years in custody,” straight time, was the appropriate sentence for count 1. After imposing two years on count 1, the court imposed concurrent terms on the remaining counts, which resulted in the two-year sentence it deemed appropriate. The court’s sentencing determination clearly indicates it would stay the sentence on count 5, not count 1, on remand. Given our conclusion the trial court would stay the sentence on count 5, we exercise our authority to modify the judgment on appeal and stay the 90-day term on count 5 instead of remanding the matter. (§ 1260; People v. Alford, supra, 180 Cal.App.4th at p. 1473.) 8  II Instructional Error A Additional Factual And Procedural Background For count 1, the trial court instructed the jury using CALCRIM No. 2652. For count 5, the court instructed the jury using CALCRIM No. 2656. Both instructions required the prosecution to prove that Officer Muro was lawfully performing his duties when he ordered defendant not to sit on the curb and when he placed defendant in the patrol car after defendant defied the order not to sit on the curb. Both CALCRIM No. 2652 and CALCRIM No. 2656 include identical optional language defining lawful performance if the lawfulness of the officer’s conduct is an issue in the case. Under such circumstances, the instructions explain: “A peace officer is not lawfully performing his or her duties if he or she is (unlawfully arresting or detaining someone/ [or] using unreasonable or excessive force in his or her duties). Instruction [CALCRIM No.] 2670 explains (when an arrest or detention is unlawful/ [and] when force is unreasonable or excessive).]” (CALCRIM Nos. 2652 & 2656.) CALCRIM No. 2670 defines when an arrest or detention is unlawful: “<A. Unlawful Detention> [¶] [A peace officer may legally detain someone if [the person consents to the detention or if]: [¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the same suspicion. [¶] Any other detention is unlawful.… [¶] <B. Unlawful Arrest> [¶] [A peace officer may legally arrest someone [either] (on the basis of an arrest warrant/ [or] if he or she has probable cause to make the arrest). [¶] Any other arrest is unlawful.” The trial court did not include the optional language in CALCRIM No. 2652 and CALCRIM No. 2656 or CALCRIM No. 2670 in the instructions for count 1 or count 5. Nor did defendant request them. 9  The only instruction defendant requested was an instruction on accidental conduct. The trial court gave the instruction over the prosecution’s objection because it determined the evidence at trial could allow the jury to reach the conclusion that defendant accidentally hit Officer Muro. B Legal Principles And Standards Of Review In criminal cases, “[t]he trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) In this context, substantial evidence is evidence that “would allow a reasonable jury” to make a finding in accordance with the theory presented by a party under the appropriate standard of proof. (People v. Cole (2004) 33 Cal.4th 1158, 1206.) “The trial court must instruct even without request on the general principles of law relevant to and governing the case. [Citation.] That obligation includes instructions on all of the elements of a charged offense.” (People v. Cummings (1993) 4 Cal.4th 1233, 1311, abrogated on other grounds as stated in People v. Merritt (2017) 2 Cal.5th 819, 829-831.) Moreover, where “the elements of the offense include a term that has a technical legal meaning that is different from its common meaning,” the court must define that term. (People v. Gonzales (2010) 183 Cal.App.4th 24, 36.) We review claims of instructional error de novo. (People v. Cole, supra, 33 Cal.4th at p. 1210.) C Analysis Defendant contends the trial court had a sua sponte duty to instruct the jury on the concept of “lawful performance” using CALCRIM No. 2670 for both count 1 and count 5 because “there was substantial evidence that [Officer] Muro was not lawfully performing his duties and lawful performance was an element of both counts 1 and 5.” Specifically, 10 he contends a reasonable juror could have found that neither the initial detention nor the subsequent arrest was lawful. He further contends the failure to give the instruction was prejudicial under both Chapman v. California (1967) 386 U.S. 18, 24, and People v. Watson (1956) 46 Cal.2d 818, 836. Finally, defendant asserts the error violated his right to due process under the federal Constitution. The People disagree, arguing that the trial court’s duty to instruct on the definition of lawful performance was not “triggered” because there was no evidence indicating the officers acted unlawfully. The People also argue the court did not have a duty to instruct on lawful performance because the instruction was inconsistent with the defense’s theory that defendant accidentally assaulted the officer. Finally, they contend that, even if the court had a duty to instruct, any error was harmless. We conclude there was no error. We first address defendant’s contention the trial court had a duty to instruct on lawful performance because “[a]n objectively reasonable juror could have found” that his detention was unlawful. We disagree. The evidence at trial showed Officer Morgera detained defendant because he was a suspect in the possible sexual assault of a minor and because he was intoxicated and uncooperative. In fact, during closing argument, defense counsel emphasized defendant’s intoxication in arguing that his physical assault of Officer Muro was accidental. None of this evidence would support the jury’s consideration of the issue of lawful performance. (People v. Marshall (1997) 15 Cal.4th 1, 39-40.) We also conclude there was no evidence to support the jury’s consideration of lawful performance as to Officer Muro’s arrest of defendant. (People v. Marshall, supra, 15 Cal.4th at p. 39.) That defendant disagreed with the officer’s refusal to let him sit on the curb is not evidence that Officer Muro’s refusal to let him do so was unlawful. Nor was the subsequent decision to detain defendant in the patrol car after he defied Officer Muro’s order not to sit on the curb evidence of the officer’s unlawful performance of his duties. 11  Because none of the evidence raised an issue about lawful performance for the jury’s consideration, the trial court did not have a sua sponte duty to give the lawful performance instruction. (People v. Marshall, supra, 15 Cal.4th at p. 39.) Therefore, its failure to give the instruction was not error. Given our conclusion that the trial court did not err, we also conclude defendant’s claim that his right to due process was violated by the failure to give the instruction is without merit. (People v. Ervine (2009) 47 Cal.4th 745, 771, fn. 12, quoting People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17 [stating that rejecting a claim that the trial court erred necessarily rejects a constitutional claim based on the claimed error as well].) DISPOSITION We modify the judgment to stay the 90-day concurrent term imposed on count 5 pursuant to section 654. The judgment as modified is affirmed. We direct the trial court to amend the county prison minute order to reflect that the 90-day concurrent term on count 5 is stayed. ../s/……… ROBIE, Acting P. J. We concur: ../s/……… MAURO, J. ../s/……… FEINBERG, J. 12