Unreported / Non-Citable
Background
In March 2024, two teenage girls were sitting outside a shopping center when Fernando Aldabarios offered them a beer and then grabbed one girl's hand. The girls screamed and ran toward an employee from a nearby store, and another employee from that store called police. Officers Elijah Morgera and Michael Muro responded and handcuffed Aldabarios based on his apparent intoxication and the allegation of a possible sexual assault of a minor. While detained, Aldabarios verbally threatened the officers and physically resisted being placed in a patrol car, headbutting Officer Muro as the officer opened the door to place him in the backseat, and kicking the officer in the upper body as part of the continued struggle after the headbutt.
A jury convicted Aldabarios of felony resisting an executive officer by force, threats, or violence (count 1), misdemeanor contributing to the delinquency of a minor (count 2), misdemeanor battery (count 4), and misdemeanor resisting or obstructing a peace officer (count 5). The trial court sentenced him to two years on count 1 and 90 days on each of counts 2, 4, and 5, with the 90-day terms to run concurrent to each other and to count 1, for an aggregate term of two years.
On appeal, Aldabarios raised two claims. First, he argued the trial court erred by failing to stay the sentence on either count 1 or count 5 under Penal Code section 654 because both offenses arose from a single course of conduct with one intent and objective. Second, he contended the trial court prejudicially erred by failing to instruct the jury sua sponte on the lawful performance element for both counts 1 and 5.
The Court’s Holding
The Court of Appeal agreed with Aldabarios's first claim. It found that his 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. The court concluded this conduct was motivated by a single intent and objective: to sit on the curb while they waited for Officer Morgera to complete his investigation. Because the record did not support the trial court's implied finding that section 654 did not apply, the appellate court held the trial court erred by not staying the sentence on either count 1 or count 5.
Rather than remanding for the trial court to decide which sentence to stay, the Court of Appeal exercised its authority under section 1260 to modify the judgment directly. It determined the record clearly indicated the trial court would have stayed the 90-day concurrent term on count 5, not the two-year term on count 1, based on the trial court's remarks during sentencing. The trial court had carefully considered Aldabarios'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.
The court rejected Aldabarios's second claim, finding no error in the trial court's failure to instruct on lawful performance. It held there was no substantial evidence that Officer Muro acted unlawfully in detaining or arresting Aldabarios, so the sua sponte duty to give the lawful performance instruction was never triggered. The court therefore affirmed the judgment as modified to stay the 90-day term on count 5 and directed the trial court to amend the county prison minute order to reflect that the 90-day concurrent term on count 5 is stayed.
Key Takeaways
- Penal Code section 654 prohibits multiple punishments for a single act or an indivisible course of conduct pursued with a single intent and objective.
- A defendant's verbal refusal to comply with police orders followed immediately by physical resistance can constitute a single, indivisible course of conduct for purposes of section 654.
- When a trial court erroneously fails to stay a sentence under section 654, an appellate court may modify the judgment directly under section 1260 if the record clearly indicates which sentence the trial court would have stayed.
- A trial court has no sua sponte duty to instruct the jury on the lawful performance element of resisting arrest unless there is substantial evidence that the officer acted unlawfully.
- A defendant's disagreement with an officer's orders is not, by itself, evidence that the officer was acting unlawfully.
Why It Matters
This case provides a clear application of Penal Code section 654's single-intent-and-objective test to a common scenario involving resisting arrest. It illustrates how a continuous, uninterrupted course of conduct, even one that escalates from verbal to physical resistance, may be deemed indivisible, thereby barring separate punishments for felony and misdemeanor resisting charges arising from the same incident.
The decision also reinforces the standard for when a trial court must instruct a jury on the lawful performance element of resisting arrest. It clarifies that the duty to give such an instruction sua sponte is not triggered unless the defendant presents substantial evidence that the officer's actions were unlawful, a threshold not met by a defendant's mere disagreement with or defiance of police commands.