People v. Jimenez CA2/8

INTRODUCTION

Defendant Roger Anthony Jimenez was charged by information with felony elder abuse (Pen. Code, § 368, subd. (b)(1)),1 resisting an executive officer (§ 69), making criminal threats (§ 422), and with prior prison term and strike enhancements (§§ 667.5, subd. (b), 667, subds. (a)(1), (b)-(i)). Defendant was convicted by jury of the lesser included offense of misdemeanor elder abuse, and of felony resisting an executive officer, and was acquitted of the other offenses. Defendant appeals his conviction of felony resisting an executive officer, contending the trial court committed instructional error when it failed to sua sponte instruct the jury on the lesser included offense of willfully resisting, delaying, or obstructing a peace officer in the discharge or attempt to discharge any duty under section 148, subdivision (a)(1). Defendant also contends, and respondent concedes, that he is owed additional custody credits.2 We find the trial court did not err by failing to instruct on the lesser included offense of section 148, subdivision (a)(1), because the evidence adduced at trial proved either the greater offense, or no offense, but there was no substantial evidence to…