Opinion
NOT TO BE PUBLISHED
Superior Court County No. BA322067 of Los Angeles, Frederick N. Wapner, Judge
Susan L. Wolk, by appointment, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II, Supervising Deputy Attorney General, Marc A. Kohm, Deputy Attorney General, for Plaintiff and Respondent.
COFFEE, J.
Appellant was convicted by jury of one felony count of resisting an executive officer by use of force. (Pen. Code, § 69.) The trial court found true allegations that appellant had suffered a prior strike (§§ 667, subds. (b)-(i) & 1170.1, subds. (a)-(d)) and served a prior prison term (§ 667.5, subd. (b)).
All statutory references are to the Penal Code.
On other charges, the jury acquitted appellant of battery with injury to a peace officer (§ 243, subd. (c)(2)) and was unable to reach a verdict on battery by gassing (§ 243.9, subd. (a)). The court dismissed the gassing charge in the interest of justice.
The court struck the prior prison term and sentenced appellant to a total term of 16 months in state prison consisting of one-third of the midterm, doubled for the strike.
Appellant contends that his conviction for forcibly resisting an officer should be reversed based on instructional error. We agree.
FACTUAL AND PROCEDURAL BACKGROUND
In April 2007, appellant was in custody in a high security risk section of the Twin Towers Correctional Facility in Los Angeles. On the afternoon of April 7, twelve Los Angeles Sheriff's deputies were called together to form an Emergency Response Team to search the facility's inmates for contraband. The team was supervised by Sergeant Flinn and included Deputies Lambert, Hill, Nuberg, and Han, among others. Hill had been a deputy for five months and Lambert had been a deputy for four months.
Flinn and his team were briefed by the watch commander who told them that broken windows and dangling fish lines had been discovered at the facility and that a great possibility existed that weapons or contraband had been introduced through the windows. The watch commander told the team to strip inmates down to their boxers, search them for weapons, handcuff them and remove them from their cells so that the cells could be searched. He told them that if they met with any resistance they should use chemical spray.
Deputy Lambert testified that while conducting the search, he and several others ordered appellant and his cell mate to face the back wall of their cell and strip to their boxers. Appellant's cell mate complied, but appellant stood and said, "Fuck you guys, I ain't doing shit, I'll do whatever the fuck I want." Lambert told appellant three times to turn around and face the back wall, and eventually appellant did. Lambert was outside the cell and appellant did not pose an immediate threat while he was still locked in the cell.
Lambert opened the cell door about halfway. As he did, appellant looked over his shoulder at the deputies and said, "Fuck you, deputy, motherfucker." Lambert felt that appellant was going to rush the door. When appellant turned to face the deputies, he removed his shirt, placed his hand in his waistband, and then turned back to face the wall. Lambert ordered appellant to remove his hands from his waist area. Appellant said, "I'm going to fucking get you guys." Lambert sprayed appellant in the back of the head and neck with chemical spray.
Appellant rushed toward Lambert with his fist clenched in front of him yelling, "Fuck you." Lambert pulled him to the floor, and placed his knee on him. Appellant's hands were in his waistband. Lambert ordered appellant to place his hands behind his back. Appellant did not comply. Appellant kicked his legs at responding deputies saying, "'Fuck you.'"
Lambert punched appellant several times in the back. Appellant continued to kick and tried to stand up. Deputy Han sprayed appellant with chemical spray in the face and appellant stopped fighting. Appellant was handcuffed and removed. Lambert never saw anything in appellant's hands. Appellant did not strike a deputy, although he tried. The only physical contact appellant made with a deputy was when he rushed Lambert.
Deputy Hill testified that he was not involved in the initial contact with appellant. He heard a commotion. He was curious, and went to appellant's cell where he saw appellant hopping up and down and clenching his fists saying, "Fuck you guys... I'm not going along with the program.... If you're going to fuck me come here, fucker, deal with it." About six deputies were in front of appellant's cell.
Hill saw Lambert spray the back of appellant's head and neck. He saw appellant rush Lambert. Appellant made it far enough that the deputies were not able to close the door. Hill saw Lambert, and possibly other deputies, take appellant down to the floor. Hill struck appellant two or three times in appellant's back and attempted to pull appellant's right forearm out from underneath his body. Deputy Nyberg kicked appellant three or four times in his left side. Hill and his partners commanded appellant to stop fighting and to give them his hands. Appellant was on the ground when Deputy Han sprayed him. There was no physical contact with appellant until appellant rushed the deputies. The entire struggle lasted no more than a minute.
Hill and Lambert testified that as appellant was escorted from the cell, he turned and spit on Hill's shoulder and bicep. (§ 243.9, subd. (a).)
Sergeant Flinn testified that he was on a level below appellant's cell during the altercation, with only a partial view. He did not see appellant rush the door. Flinn ascended the stairs while the deputies were struggling to handcuff appellant. After the altercation, Flinn saw a "very, very small" abrasion above appellant's eyebrow and a little blood. Appellant's face was moist from the chemical spray.
Lambert later discovered that his pinky finger was bent at an angle. (§ 243, subd. (c)(2).) He received medical care. He did not know how his finger was injured and it did not hurt until after the altercation.
Appellant testified on his own behalf. Deputies told him to strip down to his boxers and he said that he would, but he refused to pull down his boxers, bend over, expose his anus and cough. A deputy told him, "[Y]ou're going to do that and [when] we get through with the rest of the row... if you don't do it, we're going to come back and you ain't going to like it when we come back to you." The deputies moved on and then returned less than five minutes later.
When they returned, appellant told them, "When you all open the door, I [will] take off my shirt." He waited to undress until the door was open. One deputy held the door open and another pulled out a can of mace. Appellant quickly took off his shirt and pulled down his pants. He caught one foot in his pants. When a deputy grabbed his pants, appellant slipped. As appellant fell, a deputy hit him in the back of the head. Appellant tried to get up but a deputy landed on him, put his knee in appellant's spine, and kept spraying appellant in the back of the head.
Appellant testified that he did not rush the deputies. He turned his back as he was told. He turned toward the deputies to try to see their names and Deputy Rodriguez said, "You try to look at our names, you never going to get any of our names.... So we make sure you don't turn around right fucking now." He did not resist the officers.
The mace dripped into his eyes, nose and mouth. He could not breathe and he started to cough. The deputies punched and kicked him. He asked for the sergeant about 20 times. He heard one deputy say, "Make sure they don't see our badges, see our names." When he tried to turn and look he got kicked in the eye, nose and mouth. The deputies said, "[S]top fucking struggling, you making it hard on... yourself, motherfucker." Appellant was scared. They told him to shut up when given an order. He said he could not follow their commands when they were beating him. A deputy squeezed his testicles.
He did not put his hands to his back immediately because the deputy giving that order was not calm. When a deputy tried to pull his arm back appellant pulled in the other direction because he was afraid the deputy would break his arm. Deputies sprayed chemicals into his mouth. They hit and kicked him for about two minutes until the sergeant came and said, "[T]hat's enough, boys." The deputies lifted him by the handcuffs and dragged him out of the cell, "caus[ing] [him] pain."
Appellant denied spitting on Deputy Hill. He testified that Hill was not there. Appellant was coughing up blood and mucous because of the spray. He never clenched his fists and he never attempted to assault any of the deputies. He did not kick out at deputies; his body budged each time it was kicked.
Appellant testified that the deputies took him to the recreation room. He was in his boxer shorts and undershirt. His nose was "busted" and his rib cage was "kind of busted up." He did not want to tell the deputies he was hurt or get treatment because if he did, they would come back to his cell and beat him again.
The jury found appellant guilty of one count of "resisting an executive officer, upon J. Lambert and Hill." (§ 69) The jury found appellant not guilty of battery with injury to Lambert (§ 243, subd. (c)(2)) and was unable to reach a verdict on battery by gassing of Hill. (§ 243.9, subd. (a)). The court dismissed the gassing charge in the interest of justice.
DISCUSSION
The Accusatory Pleading
Appellant was accused in count 3 of "resisting an executive officer, upon J. Lambert and Hill." When a person forcibly resists multiple officers in the course of a single transaction, he or she commits separate, punishable crimes of violence against each officer. (People v. Martin (2005) 133 Cal.App.4th 776, 782-783.) The accusatory pleading was therefore defective; it alleged more than one crime in a single count. (§ 1004, subd. (3); People v. McNeill (1980) 112 Cal.App.3d 330, 334.) Appellant waived objection because he did not demur. (§ 1012.) Unresolved, the defect led to the instructional errors discussed below. Proper pleading could have avoided the reversal that is now compelled.
The Jury Instructions
Appellant's claims of instructional error are questions of law and we review them de novo. (People v. Berryman (1993) 6 Cal.4th 1048, 1089, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) Where instructional error violates state law, we reverse only if it is reasonably probable that a more favorable result would have occurred in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.) If the error violates the defendant's federal constitutional rights, we reverse unless the error is harmless beyond a reasonable doubt. (Neder v. U.S. (1999) 527 U.S. 1, 9; Chapman v. California (1967) 386 U.S. 18, 24.)
CALCRIM No. 2670, Lawful Performance
The charged crime of resisting an officer by force required proof that the defendant knowingly resisted, by use of force or violence, an executive officer in performance of his or her lawful duty. (§ 69.)
The trial court erred by omitting Deputy Hill from the lawful performance instruction. Lawful performance is an element of the crime. (People v. White (1980) 101 Cal.App.3d 161, 167.) "'... [W]hen a statute makes it a crime to commit any act against a peace officer engaged in the performance of his or her duties, part of the corpus delecti of the offense is that the officer was acting lawfully at the time the offense was committed. [Citations.]'" (People v. Cruz (2008) 44 Cal.4th 636, 673.) The court referred only to Lambert in CALCRIM No. 2670 stating, "The People have the burden of proving beyond a reasonable doubt that Deputy... Lambert was lawfully performing his duties as a peace officer...." The omission of Deputy Hill was error.
Although appellant did not object to CALCRIM No. 2670, the court has a sua sponte duty to instruct on lawful performance when it is an issue in the case. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1217; People v. Castain (1981) 122 Cal.App.3d 138, 145.) The use notes to CALCRIM No. 2652 provide, "If there is an issue in the case as to the lawful performance of a duty by a peace officer, give the last bracketed paragraph and CALCRIM No. 2670, Lawful Performance: Peace Officer. [¶] If a different executive officer was the alleged victim, the court will need to draft an appropriate definition of lawful duty if this is an issue in the case."
Hill's lawful performance was an issue in the case because appellant was charged with, and convicted of, resisting Lambert and Hill. There was substantial evidence from which a jury could have concluded that Hill was not lawfully performing his duties when he tried to get hold of appellant's arms and hit appellant in the back. A reasonable jury could have concluded that it was unnecessary for Hill to hit appellant because six deputies were holding appellant face down while he was being sprayed with chemical spray. In these circumstances, the court should have included Hill in the lawful performance instruction. We do not decide whether the error was prejudicial because the absence of a unanimity instruction, discussed below, requires reversal.
CALCRIM No. 2671, Lawful Performance
Appellant is correct that the court should have given CALCRIM No. 2671 (lawful performance by custodial officer) rather than CALCRIM No. 2670 (lawful performance by executive officer in the context of detention or arrest). The parties mistakenly submitted CALCRIM No. 2670. The trial court realized the mistake, called a sidebar, and improvised a modification to CALCRIM No. 2670 which described the duties of a custodial officer. "A peace officer may use reasonable force to... prevent escape, overcome resistance or in self-defense." The error was not prejudicial because the description was substantially correct, and counsel waived any objection by acquiescing to the modification.
Unanimity Instruction
Neither side requested a unanimity instruction, and none was given. The court had a sua sponte duty to give a unanimity instruction because the jurors could have differed in their individual verdicts as to the identity of the victim, but convicted appellant of resisting an executive officer. (People v. Russo (2001) 25 Cal.4th 1124, 1132.)
The California Constitution guarantees a criminal defendant a unanimous jury verdict. (People v. Collins (1976) 17 Cal.3d 687, 693.) The jury must agree the defendant is guilty of a specific crime. (People v. Diedrich (1982) 31 Cal.3d 263, 281 .) "[W]hen the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.]" (People v. Russo, supra, 25 Cal.4th at p. 1132.)
"The unanimity instruction is not required when the acts alleged are so closely connected as to form part of one transaction. [Citations.]" (People v. Stankewitz (1990) 51 Cal.3d 72, 100.) However, even if the acts form one transaction, a unanimity instruction is required if the jurors could differ in their individual verdicts as to the identity of the victim. (People v. McNeill (1980) 112 Cal.App.3d 330.)
The acts of resistance on Lambert and Hill charged in count 3 formed a single transaction. The prosecutor argued that appellant forcibly resisted the "deputies" when he charged them. "[H]e decided that he was going to charge at them, and that's when the physical altercation began." Under any version of the events, appellant's resistance occurred in a short time frame and his actions were so closely connected as to form part of one and the same transaction. (People v. Benavides (2005) 35 Cal.4th 69, 98; People v. Maury (2003) 30 Cal.4th 342, 422-423.)
Nevertheless, a unanimity instruction was required because the jurors could have differed on the identity of the victim. (People v. McNeill, supra, 112 Cal.App.3d 330.) The jurors could have rationally differed on the question whether Hill, Lambert, or both Hill and Lambert, acted lawfully. Thus, the court erred when it did not give a unanimity instruction.
The courts are divided concerning the proper standard for reviewing prejudice for failure to give a unanimity instruction. (People v. Matute (2002) 103 Cal.App.4th 1437, 1448-1449.) Some courts apply the state law standard of Watson, reasoning that the right to a unanimous verdict derives from the state constitution. (People v. Vargas (2001) 91 Cal.App.4th 506, 562.) Other courts apply the Chapman standard, reasoning that failure to give a unanimity instruction lessens the prosecutor's burden of proof thereby violating the federal constitutional right to due process. (People v. Wolfe (2003) 114 Cal.App.4th 177, 188.)
Appellant was prejudiced under either standard. The error was not harmless beyond a reasonable doubt, because the evidence gave the jury a rational basis for distinguishing between the lawfulness of Hill's and Lambert's conduct. Lambert entered appellant's cell to search him. Hill was drawn to appellant's cell by curiosity. Hill watched as Lambert used pepper spray and pulled appellant to the floor. Appellant was already being held face down by several officers when Hill joined the struggled and hit appellant.
It is also reasonably probable that defendant would have obtained a more favorable verdict had the unanimity instruction been given. If credited, appellant's testimony could support a rational finding that one or both officers acted with excessive force. The jury did not decide all credibility issues against appellant, as reflected by the divided verdict. (People v. Napoles (2002) 104 Cal.App.4th 108 [lack of unanimity instruction not prejudicial under either standard because the verdicts reflected a single credibility issue decided against defendant].) Nor did the jury reject a unitary defense. (People v. Wolfe, supra, 144 Cal.App.4th 177 [lack of unanimity instruction not prejudicial under either standard because verdicts reflected jury's rejection of unitary defense that appellant had no control over any firearms].) No unitary defense was presented.
Like the reviewing court in McNeill, we are left without confidence in the verdict. In McNeill, reversal was required where appellant was charged with one count of assault on four victims and no unanimity instruction was given. (People v. McNeill, supra,112 Cal.App.3d at p. 334.) The defendant had fired a rapid series of shots in the direction of four people. "While it is of course possible that the jurors agreed unanimously as to a particular victim of the assault, such agreement would necessarily be fortuitous in the absence of a proper instruction. More to the point, on the record before us we have no way to 'gauge the precise effect' [citation] of the instructional lacuna upon the verdict actually rendered.... [W]e have no assurance that a miscarriage of justice did not occur." (Id. at p. 336.) The absence of a unanimity instruction also requires reversal here.
Definition of "Excessive or Unreasonable" Force
Appellant argues that the trial court had a sua sponte duty to define the term "unreasonable or excessive force" because the jurors could have been confused by the various deputies' testimony about what they subjectively believed was authorized or necessary. As a model, defendant points to CACI No. 3001 which is used in civil rights lawsuits to instruct on the essential elements of claims brought under section 1983 of title 42 of the United States Code, and specifies that an objective standard should be used to determine whether force was unreasonable or excessive. We address the argument for retrial.
Lambert testified that he was told to use necessary force, meaning "whatever force is necessary" to overcome resistance. Hill testified he was told to use "necessary force" and that a use of force options chart authorized him to use his hands and feet because appellant was assaultive. Flinn testified that there is "significant" force which includes punches, knee jabs, kicks and there is "less than significant" force which includes chemical spray.
Appellant cites no authority holding that a trial court is required to instruct a jury on the meaning of "unreasonable or excessive force" in a criminal prosecution. A court has no sua sponte duty to define commonly understood terms, but does have a duty to define terms that have a technical meaning peculiar to the law. (People v. Hoyos (2007) 41 Cal.4th 872, 915.)
It has been held in the civil negligence context that "[t]he word 'reasonable' is an ordinary word and in common use, and is familiar to the average person. It occurs frequently in statutes that were intended for the daily guidance of laymen. [Citation.]" (Reed v. Stroh (1942) 54 Cal.App.2d 183, 188.) The words "unreasonable" and "excessive" were used here to explain the technical legal term "lawful performance." They were used in their commonly understood senses: "exceeding the bounds of reason or moderation" and "exceeding what is usual, proper, necessary, or normal." (Merriam-Webster 10th Collegiate Dict. (1999) pp. 1295 & 404.) The words are commonly understood to refer to an objective standard of what is "normal." No further reference to an objective standard was necessary. Because the words were not used in a technical or legal sense, the court had no sua sponte duty to define them.
Lesser Included Instruction
Appellant contends that he was entitled to a sua sponte instruction on the lesser included offense of misdemeanor resisting without force. (§ 148.) We disagree.
Misdemeanor resisting an officer is a lesser included offense to felony resisting by use of force or violence. (People v. Lacefield (2007) 157 Cal.App.4th 249, 259.) A trial court has a sua sponte duty to instruct on the lesser offense if there is substantial evidence the defendant is guilty only of the lesser offense. (People v. Breverman (1998) 19 Cal.4th 142, 177.) We apply the de novo standard of review and independently determine whether an instruction on the lesser crime should have been given. (People v. Hayes (2006) 142 Cal.App.4th 175, 181.)
In People v. Carrasco (2008) 163 Cal.App.4th 978, the defendant's convictions for two counts of forcibly resisting officers were affirmed and he was not entitled to an instruction on the lesser included offense of misdemeanor resisting. He resisted multiple officers who took him to the ground after he refused their commands to remove his hand from a duffle bag. Under any version of the evidence, the defendant forcibly resisted while the officers tried to pull his hands out from between his body and the ground and sprayed him with chemical spray. Here, too, "the jury would have had no rational basis to conclude appellant wrestled with the officers for which they convicted him of resisting... but the struggle did not involve force or violence...." (Id. at p. 986.)
There is no substantial evidence that appellant resisted Lambert and Hill without use of force. According to appellant's own testimony, he physically resisted the efforts to handcuff him until the deputy pulling his arm was calm, and he used his arms to grab a bedcover when he was being instructed to put his hands behind his back. The court had no duty to instruct on the lesser included offense.
DISPOSITION
The judgment is reversed.
We concur: GILBERT, P.J., PERREN, J.