Opinion
A150985 A154004
08-14-2018
THE PEOPLE, Plaintiff and Respondent, v. RICARDO D. CORDOVA, Defendant and Appellant. In re RICARDO D. CORDOVA, on Habeas Corpus.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Lake County Super. Ct. No. CR942023)
I. INTRODUCTION
Late one night, Ricardo Cordova was detained by a deputy sheriff who followed his car when he exited a freeway in Lake County. A disagreement about whether the deputy could search Cordova led to a physical altercation, which culminated in Cordova's arrest. Subsequently, a jury convicted Cordova of a felony violation of Penal Code section 69 (section 69) for knowingly resisting an officer in the performance of his duty by using force or violence, a misdemeanor violation of section 148, subdivision (a)(1) for resisting an officer, and other misdemeanor drug and Vehicle Code offenses.
Unless otherwise indicated, subsequent statutory references are to the Penal Code.
On appeal, Cordova contends his two convictions for resisting an officer must be reversed because the trial court failed to instruct the jury regarding (1) the general principle of law that an officer may not use excessive force to perform a lawful duty; and (2) the lesser included offense of simple assault (§ 245). Cordova further contends he was denied the effective assistance of counsel because his trial attorney did not request instructions on these matters or present a use of excessive force defense. In a related petition for writ of habeas corpus, Cordova contends his trial counsel failed to present available evidence supportive of an excessive force defense.
We find that the claims Cordova makes on appeal require reversal of the challenged convictions. Accordingly, his writ petition will be denied as moot.
II. STATEMENT OF FACTS
The case against Cordova arose out of an interaction he had with Lake County Sheriff's Deputy Aaron Clark on the evening of January 29, 2016, just before midnight. At Cordova's 2017 jury trial, the People presented (1) testimony from Clark and government employees who participated in the investigation, (2) an excerpt from an audio-visual recording of the interaction between Clark and Cordova, and (3) a stipulation regarding Clark's mistaken belief that Cordova was on probation on the night in question.
A. Witness Testimony
Deputy Clark testified that he was driving his patrol car on Lakeshore Boulevard when he began to follow a minivan that matched the description of a vehicle that had been reported stolen earlier that night. As he followed the car, Clark also noticed the vehicle registration tags were expired. The driver made a "quick turn" off Lakeshore onto Beach Lane, and then came to an "abrupt stop" in the alleyway of a self-storage unit facility. Clark positioned his patrol car behind the minivan. The minivan driver exited the vehicle in a "very quick manner," and "put his hands in the air as if to say, 'Why are you stopping me,' or, 'What do you want?' "
When Clark approached the driver, he recognized Cordova, who he knew from prior interactions. Clark testified that he told Cordova the reason he "was contacting him" was because the vehicle registration had expired. Clark also asked if Cordova had a valid driver's license because he recalled that Cordova did not have a valid license when Clark dealt with him in the past. Cordova admitted his license had expired and he needed to renew it. Clark testified that he ran a record check and notified Cordova that driving with an expired license was a misdemeanor, and that he was on probation and subject to a search condition.
At trial, Clark testified that when he first contacted Cordova, his demeanor was aggressive; Cordova was "very defensive, a little hostile," and seemed "very upset that he was being contacted by law enforcement." According to Clark, Cordova's emotions went up and down at first, but then became "more and more aggressive." And, as Clark got closer to Cordova, he smelled alcohol, which seemed to intensify when Cordova spoke.
Clark decided to arrest Cordova for driving with an expired license. He also decided to handcuff Cordova for the safety of everyone involved. Clark reasoned that Cordova was already hostile, was possibly driving a stolen vehicle, and knew that he had already committed a crime by driving with an expired registration, and if he were to get "further bad news," the handcuffs would reduce the likelihood of a "violent reaction." So, Clark told Cordova to face the vehicle so that he could be handcuffed. He had to repeat this command four times before Cordova stopped arguing and reluctantly complied. Then, as Clark brought Cordova's wrists down behind his back, Cordova "pulled away and fled" toward the patrol car in the direction of Lakeshore Boulevard.
Clark testified that when he pursued Cordova the following occurred: "We got to approximately—actually, he got to approximately my passenger side door. As I pursued him to that point, he stopped abruptly, turned around, and swung at me with his right fist. I ducked under that strike and tackled him to the ground." At that point, Cordova was on the ground on his back, and Clark was on his knees holding Cordova to the ground while Cordova was "scrambling, still trying to get away." Then, when Clark used a microphone attached to his lapel to request backup, Cordova struck Clark in the left temple area, got back on his feet and fled. Clark pursued, catching Cordova again. As he tackled Cordova to the ground, Clark noticed several items fall from Cordova's person, including an Altoids container, a folding knife, and a drawstring pouch. After Clark tackled Cordova the second time, he attempted to employ a carotid restraint, a control hold that cuts off the blood flow to the brain without restricting air flow, so that the subject is temporarily incapacitated and can be handcuffed and detained. At trial, Clark gave the following account of what happened when he applied the control hold:
"I had my left arm around the front of his face. I felt severe pressure on my left wrist just on my watch area. I couldn't really see what was happening, but it felt like he was biting my watch. So based on him—the pain I was feeling in my wrist, I struck him in the face approximately two times with my right fist from behind. He rolled to his stomach at that point. I was on his back and I shifted to his left side. And at that point he was reaching back with his right hand and squeezing very firmly on my right area, my right inner thigh near my scrotum. He started grabbing my—my duty belt. I felt the pulling on my handcuff case which is directly in—mounted directly in front of my belt, just underneath my stomach. Based on him trying to cause further harm or incapacitate me by grabbing my scrotum or in this case grabbing towards my belt, I felt that he was attempting to get my firearm. Based on his actions, his continuous behavior of causing me harm, his hostility, I struck him in the face approximately five more times. Approximately—after the fifth strike, I believe, he quit resisting. I was able to put him in handcuffs. At that point the incident was over. I called for medical to respond."
Clark testified that throughout their physical altercation, he repeatedly gave commands to Cordova to stop fighting and put his hands behind his back, but Cordova continued to resist and refused to comply with Clark's commands until after Clark struck him for the last time and finally secured him in handcuffs, and even then Cordova attempted to stand up and Clark had to force him back down to the ground. During the altercation, Clark suffered abrasions, scratches on his knees, hands and elbows, minor swelling on the left side of his temple, and "pretty severe swelling to [his] right middle knuckle." Although the swelling dissipated, the pain to his right hand continued for more than a month.
Under cross-examination, Deputy Clark acknowledged that the van Cordova was driving on the night in question was not stolen. Defense counsel also probed Clark about his decision to arrest Cordova for driving with an expired license. Clark testified that he had discretion not to arrest Cordova for that offense, or he could have issued a citation, which would have had the same "ramifications" as an arrest, but would not have involved placing Cordova in handcuffs or taking him to jail. Clark also acknowledged that he did not "verbally advise" Cordova that he was going to arrest him for driving without a license. However, he did tell Cordova that he was going to search him because he was on probation.
Clark also testified that when Cordova reached for and pulled on Clark's belt during the struggle, which does not happen often, it was "just instinct" for Clark to believe that Cordova was going for Clark's firearm with the intent of using it against him. Clark testified that although the injuries he received were minor, his hand continued to hurt for approximately two months. He also acknowledged that Cordova was injured during the incident and identified a booking photograph of Cordova, which was admitted into evidence.
California Highway Patrol Officer John Geer, who responded to Clark's request for assistance on the night in question, testified that when he arrived at the scene, Cordova was angry and agitated, and his clothes were dirty and disheveled. Upon first contact with Cordova, Geer immediately noticed the odor of an alcoholic beverage. Geer routinely performs field sobriety tests when investigating a case involving possible driving under the influence, but he did not do any sobriety tests on Cordova for the sake of safety, because he concluded it would not have been wise to take off Cordova's handcuffs. Instead, Geer went to the hospital where Cordova was transported for a medical check and obtained Cordova's consent to conduct a blood test.
Nikolay Azar, a criminalist at the Sacramento Toxicology Lab, testified that he found concentrations of methamphetamine in the blood sample that Cordova gave when he was taken to the hospital after his altercation with Clark.
Selena Mann, a criminalist employed by the Department of Justice, testified that a substance in the Altoids container recovered from the scene contained methamphetamine.
B. The Audio-video Recording
At some point after Clark exited his vehicle and approached Cordova on the evening of January 29, 2016, he activated the mobile audio-video device (MAV) mounted on the roof of his patrol car. A three-minute segment of film recorded on the MAV was played for the jury at trial, and is included in the appellate record. The jury was provided a transcript, which was described as "someone's best efforts to transcribe what's being said" during the incident.
When the segment begins, Cordova—who appears to be much smaller than Clark—is standing next to his open driver's side door facing the camera. Clark is standing a few feet in front of Cordova with his back to the camera. Both men look and sound calm. The audio begins mid-conversation, with Cordova telling Clark that he has "been off all that since November," and Clark responding that he ran Cordova "under review and it still says 2018." Cordova begins to reply, but Clark interjects that Cordova does not have a driver's license. Cordova acknowledges that he needs to renew it and says he does not have his wallet with him. Then Clark asks if there is anything illegal in the car, which leads to the following exchange:
"Cordova: Are you going to search it?
"Clark: Yeah, I'm going to search your car. I'm going to search your person too.
"Cordova: You've got to be kidding me man. I'm off of parole.
"Clark: It still says you're on probation.
"Cordova: Run my name again.
"Clark: I did. This is the 2nd time.
"Cordova: You know this is the second time (inaudible).
"Clark: You're driving on expired tags and you have no license. I am going to search your person because you are on probation.
"Cordova: I am not on probation anymore, man.
"Clark: Face the car.
"Cordova: Why are you doing this?
"Clark: Because it's my job. Face the car.
"Cordova: Wait, hold on.
"Clark: I'm not going to hold on again. You don't tell me what to do. I tell you what to do.
"Cordova: I'm not telling you what to do.
"Clark: Face the car now.
"Cordova: You gotta be fucking kidding me, man.
"Clark: Face the car.
"Cordova: You gotta be fucking kidding me.
"Clark: Put your hands behind your back.
"Cordova: Why do . . . . ?"
During the exchange recounted above, Cordova sounds upset and frustrated, but he does not raise his voice or make any threatening moves, and he does eventually face the car and raise his hands. However, the film shows that as Clark takes Cordova's hands down behind his back, Cordova turns and pulls away. Cordova takes a few quick backward steps and Clark follows until both figures exit the screen. From that point on, neither man can be seen, and it is very difficult to hear what they say. The static is punctuated with audible commands from Clark, repeatedly telling Cordova to "[p]ut your hands behind your back," and to stop "fighting." Cordova makes noises, which could be reactions to being struck, and at one point says, "Holy shit."
C. The Stipulation
The prosecutor submitted a stipulation between the parties, which was admitted into evidence and read to the jury. The jury was told to accept the following facts pertaining to Cordova's probation status: On May 28, 2015, Cordova was placed on post release community supervision (PRCS) in Lake County. PRCS is a Penal Code requirement that persons released from prison for a felony are placed under supervision by the probation department for a period of no more than three years. A person on PRCS is subject to a search of his person, residence, and possessions with or without a warrant.
The stipulation further stated: "The defendant was terminated early from PRCS by the probation department on December 10th, 2015. The termination paperwork was not processed by the probation department until February 4th, 2016. Prior to February 4th, 2016, the termination order was not distributed to local or state law enforcement agencies and was not entered into any law enforcement criminal records systems until February 4th, 2016. On January 29th, 2016, the defendant was listed by local and state law enforcement records as being on PRCS with a termination date of May 28th, 2018. This was the information that deputy Aaron Clark received from the Lake County dispatch on January 29th, 2016."
III. PROCEDURAL BACKGROUND
At trial, the People argued the evidence summarized above established that Cordova was guilty of the following crimes: knowingly resisting by use of force or violence an officer in the performance of his duties (§ 69, count one); battery on an officer (§ 243, subd. (c)(2), count two); possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a), count three); possession of drug paraphernalia (Health & Saf. Code, § 11364, count four); resisting or obstructing an officer in the discharge of his lawful duties (§ 148, subd. (a)(1), count five); and driving without a valid driver's license (Veh. Code, § 12500, subd. (a), count six).
The defense did not present an opening statement to the jury, submit any evidence other than Cordova's booking photo, or call any witnesses. During closing argument, defense counsel admitted Cordova committed the drug and Vehicle Code misdemeanors. But he argued the prosecution failed to carry its burden of proving the felony charges of resisting an officer by force (count one), and battery on an officer (count two), or the misdemeanor charge of resisting arrest (count five). The crux of the defense theory was that Cordova reasonably believed Clark did not have the authority to search him because the only reason Clark gave Cordova for performing a search was that Cordova was on probation, but Cordova knew he was no longer on PRCS and thus was not subject to a probation search condition. Defense counsel argued that the fact that Cordova reasonably believed Deputy Clark did not have authority to search him precluded the prosecution from proving that Cordova knew Clark was performing his duty when Cordova interacted with him on the night in question.
The jury returned general verdicts finding Cordova guilty of all charges, except that it was unable to reach a unanimous verdict as to the count two charge of felony battery against an officer engaged in his lawful duties. That charge was subsequently dismissed pursuant to the prosecutor's motion.
Cordova was sentenced in March 2017. The court imposed an eight-year sentence for count one, using the upper term of three years, which was doubled and then enhanced by two years due to Cordova's prior convictions. Cordova was also sentenced to a 164-day term for each misdemeanor conviction, to be served concurrently with the felony sentence.
IV. THE APPEAL
A. Jury Instruction Issues
Cordova contends his convictions for felony resisting an officer by force (§ 69) and misdemeanor resisting or obstructing an officer (§ 148, subd. (a)(1)) must be reversed because the trial court failed to instruct the jury that an officer may not use excessive force during the performance of his or her lawful duties. Cordova further contends the trial court was required to instruct the jury regarding misdemeanor assault and/or battery as a lesser included offense of the charged felony. In making these claims, Cordova concedes he did not request jury instructions regarding either matter, but he contends the trial court had a sua sponte duty to give these instructions.
1. Background
Count one of an amended information charged Cordova with violating section 69, which states in pertinent part: "Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment." (§ 69, subd. (a).)
The jury was instructed regarding this charge with a modified version of CALCRIM No. 2652, which stated: "The defendant is charged in Count One with Resisting an Executive Officer in the Performance of that Officer's Duty, in violation of Penal Code §69. [¶] To prove the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant unlawfully used force or violence to resist an executive officer; [¶] 2. When the defendant acted, the officer was performing his lawful duty; [¶] AND [¶] 3. When the defendant acted, he knew the executive officer was performing his duty.
"An executive officer is a government official who may use his or her own discretion in performing his or her job duties. A Deputy Sheriff is an executive officer. [¶] A sworn member of Lake County Sheriff's Department is a peace officer. [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting, searching or detaining someone. Instructions 2670 and 2671 explain when an arrest, search or detention is unlawful." (Italics omitted.)
Count five of the amended information charged Cordova with a misdemeanor violation of section 148, subdivision (a)(1), which states: "Every person who willfully resists, delays, or obstructs any public officer, peace officer, or an emergency medical technician, . . . , in the discharge or attempt to discharge any duty of his or her office or employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment."
The jury was instructed regarding the misdemeanor resisting an officer charge with a version of CALCRIM No. 2656, which stated: "The defendant is charged in Count Five with Resisting, Obstructing or Delaying a Peace Officer in the Performance or Attempted Performance of his Duties in violation of Penal Code §148(a)(1). [¶] To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. Aaron Clark was a peace officer lawfully performing or attempting to perform his duties as a peace officer; [¶] 2. The defendant willfully resisted, obstructed or delayed Aaron Clark in the performance or attempted performance of those duties; [¶] AND [¶] 3. When the defendant acted, he knew, or reasonably should have known, that Aaron Clark was a peace officer performing or attempting to perform his duties.
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage. [¶] A person who is employed as a deputy sheriff by the Lake County Sheriff's Department is a peace officer. [¶] A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting, searching or detaining someone. Instructions 2670 and 2671 explain when an arrest, search or detention is unlawful." (Italics omitted.)
A jury instruction that was titled "2670" was a modified version of CALCRIM No. 2670, which addresses the lawful performance of the duties of a peace officer. As modified, the instruction stated: "The People have the burden of proving beyond a reasonable doubt that Aaron Clark was lawfully performing his duties as a peace officer. If the People have not met this burden, you must find the defendant not guilty of the crimes charged in Counts One, Two, Five, or the lesser included offense to the crime charged in Count Two.
"A peace officer is not lawfully performing his or her duties if he or she is unlawfully arresting, searching or detaining someone.
"A peace officer may legally detain someone if: [¶] 1. Specific facts known or apparent to the officer lead him or her to suspect that the person to be detained has been, is, or is about to be involved in activity relating to crime; [¶] AND [¶] 2. A reasonable officer who knew the same facts would have the same suspicion. [¶] Any other detention is unlawful. [¶] In deciding whether the detention was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she detained the person.
"A peace officer may legally arrest someone if he or she has probable cause to make the arrest. [¶] Any other arrest is unlawful. [¶] Probable cause exists when the facts known to the arresting officer at the time of the arrest would persuade someone of reasonable caution that the person to be arrested has committed a crime. [¶] In deciding whether the arrest was lawful, consider evidence of the officer's training and experience and all the circumstances known by the officer when he or she arrested the person.
"In order for an officer to lawfully arrest someone without a warrant for a misdemeanor, the officer must have probable cause to believe that the person to be arrested committed a misdemeanor in the officer's presence. [¶] Vehicle code section 12500(a) is a misdemeanor."
The court also gave a jury instruction that was titled "2671," which does not appear to be based on CALCRIM No. 2671 or any CALCRIM instruction. Instruction 2671 stated: "Generally a peace officer may not search a person or his property without a warrant. There are exceptions to this rule. [¶] A peace officer may search a person or his property without a warrant if that person is on probation, parole or Post Release Community Service (PRCS) with conditions authorizing law enforcement to search him without a warrant. A peace officer may not search a person or his property without a warrant based on information that the person is on probation, parole or PRCS if that information is erroneous and the error concerning that information originated with any law enforcement agency, including a probation department. [¶] A peace officer may search a person or his property without a warrant during or immediately after the lawful arrest of that person."
2. Failure to Give an Excessive Force Instruction
Cordova first contends that the trial court committed a prejudicial instructional error by failing to instruct the jury that an officer is not lawfully performing his duties if he uses unreasonable or excessive force.
"It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury's understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant's theory of the case. [Citations.]" (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
In the present case, the prosecution had to prove that Deputy Clark was performing a lawful duty in order to convict Cordova of the two resisting arrest charges. (§§ 69, 148, subd. (a).) CALCRIM No. 2652 and CALCRIM No. 2656, the official standard instructions addressing these crimes both contain bracketed paragraphs stating that an officer is not lawfully performing duties when he or she uses excessive or unreasonable force. In addition, CALCRIM No. 2670, which further defines the lawful performance of the duties of a peace officer, and CALCRIM No. 2671, which further defines the lawful performance of the duties of a custodial officer, each contain a set of "special rules" pertaining to an officer's use of force. The trial court determined that at least three of these CALCRIM instructions were relevant to the charges against Cordova. And yet, it chose not to instruct the jury regarding the level of force an officer may use to lawfully perform a duty. We conclude that this was error for the following reasons.
First, rules governing an officer's use of force to perform an official duty are general principles of law when (as here) the officer's performance of a lawful duty is an element of the offense that the defendant is charged with committing. "The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ' "engaged in . . . the performance of . . . [his or her] duties" ' unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 815, italics omitted.) Equally clear, an officer who uses excessive force is not acting within the scope of his or her lawful duties. (People v. Sibrian (2016) 3 Cal.App.5th 127, 133; People v. Brown (2016) 245 Cal.App.4th 140, 154-155 (Brown); People v. Olguin (1981) 119 Cal.App.3d 39, 46; People v. White (1980) 101 Cal.App.3d 161, 167.)
Second, the only reason the trial court gave for failing to instruct the jury regarding use of force rules was that Cordova's trial counsel did not request that the court include "the unreasonable or excessive force language" in the CALCRIM instructions that we have discussed above. This was not a sound ruling. The reasonable force requirement was a potential defense to the charges at issue in this appeal. The trial court had an independent duty to instruct on this general principle if there was evidence from which a jury could have concluded that Deputy Clark used excessive force to arrest Cordova for driving with an expired license.
Third, the trial record contained evidence that could have led a reasonable trier of fact to question whether Clark used more force than reasonably necessary to place Cordova in handcuffs. After detaining Cordova for a minor Vehicle Code violation, Clark tackled Cordova to the ground, employed a carotid hold to cut off Cordova's blood flow, and punched Cordova in the face seven times. Clark testified this level of force was reasonable and necessary because Cordova was hostile from the outset and the initial aggressor. But the MAV excerpt did not compel this conclusion, and it was up to the jury to determine whether Clark's testimony on this matter was credible.
Equally important, the jury was not required to accept Clark's subjective self-assessment that his conduct was reasonable. "The use of excessive force by law enforcement officers is analyzed under the Fourth Amendment's objective reasonableness requirement for a seizure of the person [citations]." (Brown, supra, 245 Cal.App.4th at p. 158.) Jurors play a "vital role in deciding what constitutes objectively reasonable force, bringing with them their independent sense of the values of the community in which they sit." (Id. at p. 173.) Here, however, the jury was not given the opportunity to make an independent determination as to whether the amount of force Clark used to place Cordova in handcuffs was reasonable or excessive.
The People implicitly concede that rules regarding an officer's use of force are general principles of law. But they contend there was no substantial evidence to support an excessive force instruction in this case, highlighting Clark's testimony that Cordova took the first swing, requiring Clark to respond with force, and then escalated the conflict by punching Clark in the temple, biting his wrist, and squeezing his thigh near his scrotum. Under these circumstances, the People contend, Cordova "was the aggressor throughout, increasingly escalating the violence of his attack against Clark," and "[a]t all times Deputy Clark's response to appellant's violence was proportional."
The People's legal reasoning is flawed. The fact that they can locate substantial evidence that Clark used reasonable force does not establish a priori that a jury could not have concluded otherwise. The issue on appeal is whether the jury was adequately instructed regarding the relevant law. The law precluding the use of excessive force to perform a lawful duty was relevant in this case because there was evidence that Deputy Clark used excessive force. Absent instruction regarding the implications of using excessive rather than reasonable force, the jury was not provided the relevant tools for evaluating whether Clark was acting within the scope of his lawful duties when he placed Cordova under arrest.
People v. Ghebretensae (2013) 222 Cal.App.4th 741 (Ghebretensae), cited by the People, provides a useful comparison. In that case, a police officer observed the appellant participate in a drug sale and gave chase. Eventually, the officer "managed to detain appellant and force him to the ground while another officer handcuffed appellant." (Id. at p. 747.) The appellant was convicted of drug offenses and resisting arrest in violation of section 148. (Id. at p. 746.) On appeal, he argued the trial court erred by failing to instruct the jury that a peace officer is not lawfully performing his or her duties if he or she is using unreasonable or excessive force when making an arrest. The defense theory was that a reasonable jury could have found that the officer "engaged in the exercise of excessive force when he drew his firearm and then his Taser in attempting to apprehend appellant." (Id. at pp. 758-759.) The Ghebretensae court affirmed the trial court ruling, finding that the evidence did not support an excessive force instruction when the record showed that while the arresting officer was chasing the appellant, he unholstered his gun and carried it at his side, but never pointed it at appellant, and at another point during the chase, he took out his taser, but he never used that either. (Id. at p. 761.)
The present case is markedly different from Ghebretensae, supra, 222 Cal.App.4th 741, where the only physical contact the officer made was forcing appellant to the ground so another officer could place him in handcuffs. (Id. at p. 747.) Here, the undisputed evidence shows that Deputy Clark used a carotid hold and his fists to inflict injuries on Cordova in order to place him under arrest. We do not find that this level of force was excessive, but rather that it was evidence sufficient to invoke the trial court's sua sponte duty to instruct on the general principles of law regarding the use of force to perform a lawful duty.
3. Failure to Instruct on Misdemeanor Assault
Appellant contends that, along with the duty to give an excessive force instruction, the court also had a sua sponte duty to instruct on simple assault as a lesser included offense of the section 69 charge based on evidence from which the jury could have found that although Clark used excessive force, Cordova's response to that level of force was not lawful.
The trial court has a sua sponte duty to instruct on " ' "any lesser offense 'necessarily included' in the charged offense, if there is substantial evidence that only the lesser crime was committed. This venerable instructional rule ensures that the jury may consider all supportable crimes necessarily included within the charge itself, thus encouraging the most accurate verdict permitted by the pleadings and the evidence." [Citation.]' " (Brown, supra, 245 Cal.App.4th at p. 152.)
In some cases, there may be a question about whether assault is a lesser necessarily included offense of a section 69 charge because that statute can be violated in two ways, one of which does not require an attempt to apply physical force. (Brown, supra, 245 Cal.App.4th at p. 153.) In this case, however, Cordova was charged with both ways of violating section 69 and tried on the theory that he knowingly resisted Deputy Clark through the actual use of force or violence. Thus, as the People appear to concede, simple assault and/or battery was a lesser included offense of the section 69 charge against Cordova in this case. (Ibid.; People v. Smith (2013) 57 Cal.4th 232, 240-244.)
The People contend there was no substantial evidence to support a finding that Cordova committed an assault but did not also violate section 69. They reason that the record would not support this conclusion because the prosecution proved that Clark did not use excessive force to arrest Cordova. We have already rejected this argument. As explained, the jury was not required to accept Clark's testimony that the level of force he used to arrest Cordova was objectively reasonable. By the same token, however, the jury could have concluded that while Clark used excessive force, Cordova also responded with excessive force by striking Clark in the temple, attempting to bite his wrist, and grabbing his thigh. Were the jury to make both of these findings, Cordova would not have been guilty of violating section 69, but he would still be guilty of a lesser included offense of that crime such as simple assault or battery. (Brown, supra, 245 Cal.App.4th at p. 155, quoting People v. White, supra, 101 Cal.App.3d at p. 168; see also People v. Castain (1981) 122 Cal.App.3d 138, 145 ["even if the officer is not acting within the scope of his duties because of his use of excessive force, the defendant may still be guilty of simple battery if he responds with excessive force"].) Because there was substantial evidence to support a conviction for the lesser offense of assault, the trial court had a duty to instruct the jury regarding the elements of that lesser necessarily included offense.
4. Prejudice
The failure to instruct sua sponte on a lesser included offense that is supported by the evidence is a state law error, requiring reversal of a conviction only when it is reasonably probable that the error affected the outcome of the proceeding. (People v. Breverman (1998) 19 Cal.4th 142, 165.) The failure to instruct regarding general principles of law pertaining to the use of force to perform an official duty deprived Cordova of a potential defense to the crimes at issue on appeal. It is not clear whether this state law error also implicates the federal constitution requiring reversal unless the error is harmless beyond a reasonable doubt. (See People v. Salas (2006) 37 Cal.4th 967, 984.)
The People contend that both instructional errors were harmless under either standard. First, they posit that if the jury had been instructed regarding the use of force rules, it would have nevertheless concluded that Cordova used excessive force and Clark used reasonable force because that is what the undisputed evidence showed. Second, they argue that failure to instruct on assault as a lesser included offense was harmless error because "there was no evidence to support the instruction." These arguments are flawed as both employ the erroneous premise that an error did not occur in the first instance. Resort to this type of circular reasoning reinforces our concern that the errors were prejudicial.
As we have explained, the evidence raised a jury question as to whether Clark used excessive force. However, this question was not presented to the jury because it was not instructed regarding relevant general principles of law or given the option of considering whether Cordova was guilty of a lesser included offense of the section 69 charge. We are not convinced that a properly instructed jury would have reached the same verdicts with respect to the two convictions at issue in this appeal. Furthermore, as we discuss next, these instructional errors by the trial court were exacerbated by inexplicable decisions that Cordova's former counsel made with respect to the way he defended this case at trial.
B. Cordova's Right to the Effective Assistance of Counsel at Trial
Cordova argues he was denied the effective assistance of counsel at trial because his counsel presented a legally invalid defense to the two resisting arrest charges. According to Cordova, "the only legally valid defense" that was available was that Deputy Clark used excessive force, and yet his trial counsel did not request jury instructions that would have presented this defense to the jury.
"A criminal defendant is guaranteed the right to the assistance of counsel by both the state and federal Constitutions. [Citations.] 'Construed in light of its purpose, the right entitles the defendant not to some bare assistance but rather to effective assistance.' [Citation.]" (People v. Wharton (1991) 53 Cal.3d 522, 575, italics omitted.) " ' "In order to demonstrate ineffective assistance of counsel, a defendant must first show counsel's performance was 'deficient' because his 'representation fell below an objective standard of reasonableness . . . under prevailing professional norms.' [Citations.] Second, he must also show prejudice flowing from counsel's performance or lack thereof. [Citation.]" ' " (People v. Lucas (1995) 12 Cal.4th 415, 436 (Lucas).)
As discussed above, the only defense presented by Cordova's trial counsel was that Cordova reasonably believed Clark did not have authority to search him because he was no longer on probation. On appeal, the People acknowledge this argument was not a valid defense because Cordova's subjective belief regarding the lawfulness of Clark's actions was not an element of the crimes Cordova was charged with committing. (See People v. Jenkins (2000) 22 Cal.4th 900, 1020-1021.) However, the People opine that defense counsel made a sound tactical decision to "blur the distinction" between Cordova's subjective belief about the legality of Clark's action, which was not an element of the charges, and Cordova's knowledge that Clark was performing a duty of his office when he placed Clark under arrest, which was an element of the charges. The People also suggest that defense counsel made a strategic decision not to pursue an excessive force defense because that defense could have detracted from the argument that Cordova reasonably believed Clark did not have authority to search him.
It does not matter whether Cordova's trial counsel had a strategic reason for trying to convince the jury that Cordova reasonably believed Clark had no right to search him because that factual argument was not a legal defense to the charges. Furthermore, that argument was not inconsistent with an argument that Clark used excessive force, which was a potential defense. Thus, the issue in this case is not whether Cordova's trial counsel performed deficiently by deciding to pursue one defense rather than another, but whether he deprived Cordova of the effective assistance of counsel by failing to present an excessive force defense under the facts presented. Several factors indicate that he did.
First, evidence in the trial record could have been developed to support an excessive force defense. Clark made the decision to physically restrain Cordova based on a Vehicle Code infraction. Cordova was unarmed and significantly smaller than Clark. And, during a very brief struggle, Clark employed a carotid hold and punched Cordova in the face seven times. Further, there are potential inconsistencies between Clark's testimony and the excerpt of MAV video that was admitted into evidence, most notably as to whether Cordova was immediately aggressive and hostile.
According to a Department of Motor Vehicles record offered into evidence by the prosecution, Cordova is 5 feet 4 inches and weighs 150 pounds.
Second, the appellate record contains evidence supportive of an excessive force defense that, as best we can determine, was not presented to the jury. Prior to trial, the court granted a defense motion to inspect Deputy Clark's confidential employment records for evidence of prior dishonesty or excessive force issues. Following an in- camera review, the court ordered that a one-page document from Clark's file be produced to defense counsel. However, Clark was not asked about that document at trial.
Furthermore, in addition to the charges that were submitted to the jury, Cordova was also charged with driving under the influence (§ 23152, subd. (f)). However, prior to trial, the court dismissed this charge after the results of Cordova's blood test showed that he had not consumed any alcohol. Despite the fact that Cordova was not intoxicated on the night in question, both officers who interacted with him testified at trial that he smelled strongly of alcohol. The officers' claim they smelled alcohol on Cordova when he had no alcohol in his system could be evidence of a pretense for using a higher level of force than was reasonably necessary.
Third, the record demonstrates that Cordova's trial counsel took affirmative steps to withdraw the issue of excessive force from the jury's consideration. Specifically, defense counsel told the trial court that he was not requesting standard CALCRIM instructions regarding the pertinent use of force rules. He also told the court the defense was not requesting that the jury be instructed on any lesser included offense of the count one charge that Cordova violated section 69 by using force or violence to resist an officer performing his lawful duty. During the discussion of these issues, Cordova's trial counsel did not provide any explanation for his position.
When the appellate record " 'sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation,' the claim on appeal must be rejected. [Citations.]" (People v. Wilson (1992) 3 Cal.4th 926, 936.) Absent those circumstances, "a claim of ineffective assistance is more appropriately made in a habeas corpus proceeding, in which the attorney has the opportunity to explain the reasons for his or her conduct." (Ibid.)
In this case, Cordova has filed a related habeas petition in which he supplements his appellate claim that he was denied the effective assistance of counsel. There, Cordova alleges that his former trial counsel did not have a sound tactical reason for failing to develop and present an excessive force defense in this case. He further contends that the defense had possession of additional evidence supportive of an excessive force defense that was never presented at trial, including a longer excerpt of MAV tape that was inconsistent with Clark's testimony that he did not use any force until after Cordova took a swing at him.
We need not decide whether Cordova's habeas petition states a prima facie case for relief because we cannot conceive of a rational explanation for the decision by Cordova's trial counsel to eliminate the use of excessive force as a potential defense to the charges against his client. As we have explained, the People's theory that this defense would somehow detract from defense counsel's claim that Cordova reasonably believed he was not subject to a warrantless search is simply not a rational explanation for failing to present the only potential defense to the charges at issue. When we add the fact that there is evidence supportive of the defense, we must conclude that the representation Cordova received from his trial counsel fell below an objective standard of reasonableness under prevailing professional norms. (See People v. Diggs (1986) 177 Cal.App.3d 958, 970 ["where counsel fails to argue in support of evidence showing a lawful defense, and instead argues a theory not recognized as a lawful defense, and upon which the jury will receive no instructions, counsel has incompetently deprived his client of a potentially meritorious defense."]; People v. Zimmerman (1980) 102 Cal.App.3d 647, 659, italics omitted [acts that deprive defendant of " 'adjudication of a crucial or potentially meritorious defense' " constitute ineffective assistance.].)
" ' "Prejudice is shown when there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " ' [Citation.]" (Lucas, supra, 12 Cal.4th at p. 436.) In this case, the combined effect of defense counsel's deficient representation and the trial court's instructional errors was that the issue whether Clark used reasonable or excessive force was completely eliminated from the jury's consideration. These errors undermine our confidence in the outcome of Cordova's trial.
V. DISPOSITION
The judgment is reversed. The petition for a writ of habeas corpus is denied as moot.
/s/_________
SMITH, J. We concur: /s/_________
STREETER, Acting P. J. /s/_________
REARDON, J.
Judge of the Superior Court of California, County of Alameda, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------