Metropolitan News-Enterprise


Thursday, October 9, 2008


Page 1


C.A. Throws Out Conviction for Resisting Arrest

Rules Claim of Injury Required Instruction on Lesser Offense


By STEVEN M. ELLIS, Staff Writer


A man who claimed he resisted police officers because their efforts to subdue him during an arrest caused him pain was entitled to an alternate jury instruction on a lesser charge that did not involve use of force or violence, this district’s Court of Appeal held yesterday.

Ruling in an unpublished opinion that Los Angeles Superior Court Judge Richard Romero had a sua sponte duty to instruct on both theories because a jury could reasonably have found Moses Michael Grageda guilty of the lesser offense if it believed his testimony, Div. Three conditionally reversed Grageda’s convictions for forcibly resisting the officers.

Grageda was apprehended in November of 2006 by officers of the Los Angeles Police Department who were responding to a report of a prowler in San Pedro.

After a citizen told the first officer on the scene that a man matching the prowler’s description was attempting to break into vehicles nearby, the officer radioed for assistance and initiated contact with Grageda, who began to walk up a flight of stairs leading to an apartment patio approximately 30 feet above the ground surrounded by a chainlink fence.

Grageda told the officer that he lived at the apartment, but two other officers who arrived said that he refused their orders to show his hands and, while refusing to turn around, attempted to open the apartment door. When one of officers handcuffed Grageda’s right wrist, the officers said that Grageda “really went off” and began to struggle while calling out for his mother.

Saying that Grageda was “stronger than anybody that I’ve ever had to be in [an] altercation with,” and that she was afraid that someone would respond to his calls for help, one of the responding officers testified that she began punching Grageda in the back when he grabbed the handle of another officer’s gun.

The other responding officer testified that he put a carotid restraint hold on Grageda and pepper sprayed him twice in the face while neighbors watched before the officers were able to subdue him when Port of Los Angeles police officers arrived.

In a vehicle parked nearby, officers found Grageda’s identification, a cellular telephone, a glass pipe and a pouch containing 8.12 grams of methamphetamine, and Grageda was charged with three counts of resisting an executive officer by force or violence in violation of Penal Code Sec. 69, and one count of possession of methamphetamine for sale.

At trial, Grageda acknowledged that he did not live at the apartment and claimed that the officers had rushed him on the patio, saying that he was thrown to the ground before he had a chance to comply with the commands to stop resisting. He also told the court that he only he moved while on the ground to relieve the tension caused when the officers twisted his arm and choked him.

A jury convicted Grageda of the three resisting counts and a lesser charge count of possession of methamphetamine.

On appeal, Grageda contended that Romero should have instructed the jury on the lesser included offense of resisting an officer without the use of force or violence under Sec. 148(a)(1) in addition to an instruction under Sec. 69.

Writing for the court, Presiding Justice Joan Dempsey Klein concluded that Grageda was correct. The panel conditionally reversed the convictions, giving the prosecution the option of retrying Grageda on the greater offense, or accepting a reduction in the convictions to the lesser offense.

Noting that the determination of Grageda’s credibility was for the jury to evaluate, not the trial court, Klein rejected the prosecution’s assertion that testimony from the neighbors corroborating the officers’ account showed that Grageda had perjured himself and supported the conviction.

“Grageda’s testimony presented a plausible version of the incident which, if believed by the jury, permitted a conviction of resisting arrest in violation of Sec. 148(a)(1),” she wrote, pointing to the jury’s conviction on the lesser drug charge despite expert testimony, and reasoning that the result demonstrated the jury’s acceptance of Grageda’s testimony that the methamphetamine was for personal consumption.

Justices H. Walter Croskey and Patti S. Kitching joined Klein in her opinion.

The case is People v. Grageda, B199165.


Copyright 2008, Metropolitan News Company