Opinion
A152394
12-03-2018
THE PEOPLE, Plaintiff and Respondent, v. JAYRO MAGANA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR327332)
On October 7, 2016, Stanton Correctional Facility inmate and defendant Jayro Magana struggled with a correctional officer inside his cell. He was subsequently convicted by a jury of battery upon a custodial officer. Magana argues that the trial court erred in refusing to instruct the jury on a theory of self-defense and in excluding the testimony of a physician's assistant who diagnosed him with a nasal contusion after the incident. We affirm.
BACKGROUND
Ricky Perez, a correctional officer for the Solano County Sheriff's Office, testified that on October 7, 2016, approximately 12:30 a.m., he was on duty at Stanton Correctional Facility in Fairfield, where Magana was an inmate. Perez was performing a weekly laundry exchange for Magana and other inmates when Magana told Perez that some of his laundry was missing. Perez was joined by Officer Kelly McKown, who took Magana down the hall while Perez began searching his cell.
At trial, the prosecution introduced into evidence a video of the portions of the incident that took place in the hallway. There were no cameras in the individual cells. --------
While conducting the search, Perez heard McKown repeatedly telling Magana to turn and face the wall, and Magana refusing, saying "Make me" and "What are you going to do about it?" Perez switched places with McKown because he was bigger than her. Magana repeatedly told Perez to "hit me." After McKown completed the search, Perez took Magana back to his cell. As soon as they entered it, Magana turned around and grabbed Perez's throat. Perez pushed Magana up against the wall, while Magana continued to hold on to Perez's neck. McKown arrived and eventually gained control of Magana's left arm by using "strikes" to release it. Two more officers arrived and were able to restrain Magana.
Officer McKown also testified that after Perez and Magana entered the cell, she heard a "scuffling sound" and ran to the cell, at which point she saw "Magana had both hands around my partner's throat."
On February 8, 2017, the Solano County District Attorney filed an information charging Magana with battery upon a custodial officer (Pen. Code, § 243.1). On May 26, 2017, a jury found Magana guilty. He was sentenced to an eight-month prison term. This appeal followed.
DISCUSSION
Magana argues that: (1) the trial court erred in refusing his request that the jury be instructed with CALCRIM No. 2671 regarding excessive force and self-defense, and (2) the trial court erred in excluding the proffered testimony of a physician's assistant who diagnosed Magana with a nasal contusion after the incident. I. The Trial Court Did Not Err In Refusing to Give CALCRIM No. 2671
Defense counsel requested that the jury be instructed with CALCRIM No. 2671, which provides:
"The People have the burden of proving beyond a reasonable doubt that ___ <insert name, excluding title> was lawfully performing (his/her) duties as a custodial officer. If the People have not met this burden, you must find the defendant not guilty of ___ <insert name[s] of all offense[s] with lawful performance as an element>.
"A custodial officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force in his or her duties.
"Special rules control the use of force.
"A custodial officer may use reasonable force in his or her duties to restrain a person, to overcome resistance, to prevent escape, or in self-defense.
"If a person knows, or reasonably should know, that a custodial officer is restraining him or her, that person must not use force or any weapon to resist an officer's use of reasonable force.
"If a custodial officer uses unreasonable or excessive force while (restraining a person/ [or] overcoming a person's resistance/ [or] preventing a person from escaping/ [or] defending himself or herself from a person), that person may lawfully use reasonable force to defend himself or herself.
"A person uses reasonable force when he or she: (1) uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force; and (2) uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection."
The trial court ultimately declined to give the instruction, finding that there was "no evidence, either direct or circumstantial, from which the defendant—whether or not he actually believed force was necessary and whether or not the force he used was reasonable."
Magana argues that the trial court erred in refusing to give the instruction. We disagree.
"A trial court has no duty to instruct the jury on a defense—even at the defendant's request—unless the defense is supported by substantial evidence." (People v. Curtis (1994) 30 Cal.App.4th 1337, 1355; see People v. Moon (2005) 37 Cal.4th 1, 30 ["a trial court may properly refuse an instruction offered by the defendant if it . . . is not supported by substantial evidence [citation]"].) Substantial evidence in this context is evidence "from which a jury composed of reasonable persons could conclude that the facts underlying the particular instruction exist." (People v. Oropeza (2007) 151 Cal.App.4th 73, 78.) We review the trial court's assessment de novo. (People v. Quiroz (2013) 215 Cal.App.4th 65, 76.)
There was no evidence before the jury from which it could conclude that Magana was acting in response to the use of unreasonable or excessive force by Officer Perez. Magana did not testify. His brief concedes that "[t]he officers were the only witnesses to the encounter." As noted, Perez testified that Magana attacked him first, and McKown arrived to find Magana with both hands around Perez's throat. There was simply no evidence before the jury that Magana was acting in self-defense.
Magana argues that the officers' testimony was biased, and that "a reasonable jury could have discredited Perez's claim that [Magana] attacked Perez first." Certainly the jury was free to choose not to credit the officers' testimony, but this does not mean that there was any evidence in support of the alternate theory of events that Magana now advances on appeal.
Magana also argues that the collective force used by all the officers who eventually responded should be considered in determining whether they used excessive force, and that the amount of force used by Magana was small and the jury could have concluded it was no more than necessary for Magana to protect himself. These arguments are beside the point, because they depend on the factual predicate that Magana was defending himself. As the requested instruction explains, Magana was justified in using reasonable force to defend himself only "[i]f" he was responding to Officer Perez's use of unreasonable or excessive force. (See People v. Perez (1970) 12 Cal.App.3d 232, 236 [affirming refusal to instruct on self-defense because any right to defend against excessive force subject to the qualification "that the right of self-defense is based upon the appearance of imminent peril to the person attacked"]; People v. White (1980) 101 Cal.App.3d 161, 168.) There was no evidence to support such a conclusion, and thus the trial court did not err in refusing to give the instruction.
II. The Trial Court Did Not Prejudicially Err In Excluding Evidence of Arlene Gomez
Magana sought to introduce the testimony of Arlene Gomez, a physician's assistant who examined him on October 7, shortly after the incident. The trial court held a hearing pursuant to Evidence Code section 402 at which Gomez testified that a correctional officer brought Magana to the emergency room on October 7, where she diagnosed him with a nasal contusion. Gomez's diagnosis was based on a physical exam and an X-ray. On cross-examination, she explained that Magana had no visible injury, nor did the X-ray indicate any fracture. Rather, her diagnosis was based entirely on Magana's complaint of pain when she touched his nose.
After a discussion of whether admitting Gomez's testimony based on Magana's hearsay statement would permit impeachment with his prior convictions, the trial court ultimately concluded that it would exclude the testimony altogether:
"THE COURT: You know what, I'm just going to exclude Ms. Gomez's statement under Evidence Code 352, because—and under 1252, because I think at the end of the day, really, her diagnosis is solely based on the defendant's statement. I don't find under the circumstances that was a trustworthy statement, and it is likely to be misleading or confusing, and I don't know that without the defense eliciting that the basis—that part of the basis at least of her opinion was his statements during the physical exam, which might then allow the People to impeach him with one or both of his felony convictions, just all seems to me fraught with speculation, confusion, potential prejudice to one side or the other. So that's the court's ruling."
Assuming, without deciding, that it was error to exclude this evidence, we review any error for prejudice under the reasonable probability of a different result standard of People v. Watson (1956) 46 Cal.2d 818. (See People v. Marks (2003) 31 Cal.4th 197, 227.)
Magana concedes that the alleged error in excluding Gomez's testimony was not prejudicial under this standard, and we agree. It was uncontroverted that Magana struggled with Perez and other officers and an injury to his nose was entirely consistent with the prosecution's theory of the case. However, Magana argues that this alleged error together with the trial court's refusal to instruct the jury on a theory of self-defense were cumulatively prejudicial under People v. Hill (1998) 17 Cal.4th 800, 845-846. As we have found no error in the trial court's refusal to give CALCRIM No. 2671, there is at best one error at issue and accordingly no cumulative prejudice.
DISPOSITION
The judgment is affirmed.
/s/_________
Richman, J. We concur: /s/_________
Kline, P.J. /s/_________
Miller, J.