Opinion
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. EE705864.
McAdams, J.
Defendant was charged in two counts with resisting an executive officer in the performance of his duties with force and violence. (Pen. Code, § 69.) He was convicted after a jury trial and placed on probation for two years on various terms and conditions, including that he submit to warrantless search of his person, residence and car.
Unless otherwise indicated, all statutory references are to the Penal Code.
On appeal, he argues that the court misinstructed the jury on an element of the offense in several respects and that the search condition must be stricken from his probation. He also asks the court to review the trial court’s in camera ruling on his motion to compel disclosure of peace officer personnel records. (Pitchess v. Superior Court (1974) 11 Cal.3d 531.) We have reviewed the personnel records and find no abuse of discretion. We agree that the court misinstructed the jury on a material constituent of an element necessary for conviction, and find that the error was not harmless beyond a reasonable doubt. Therefore, we will reverse the judgment. In view of our disposition, we do not address the question whether a search clause constituted an unreasonable condition of defendant’s probation.
STATEMENT OF THE CASE
Following a preliminary hearing and denial of a motion to suppress evidence pursuant to section 1538.5, defendant was held to answer on one count of knowingly resisting by the use of force and violence an executive officer in the performance of his duties. (§ 69.) In support of the suppression motion, the defense argued that the police entered defendant’s apartment unlawfully without a warrant, and without express or implied consent.
On April 14, 2008, the first day of trial, the prosecution filed an amended information adding a second violation of section 69.
The jury began its deliberations at 9:05 a.m. on April 21, 2008. At 1:45 p.m. the jury sent the court the following missive: “The jury is finding difficulties in finding guilt on all three elements. [¶] What are the next steps?” It appears that before the court was able to contact the attorneys, the jury announced that it had reached a verdict. The jury found defendant guilty as charged.
STATEMENT OF FACTS
The Prosecution’s Case
On May 6, 2007, at 9:04 p.m., the Sunnyvale Police Department’s non-emergency line received an anonymous noise complaint that the neighbors in apartments 261 and 361 at 101 West Weddell Drive in Sunnyvale “have been banging on each other’s walls for like the last couple of hours, and it’s just getting out of hand. [¶]... [¶] [O]ne of the neighbors... was banging on the ceiling, the other neighbor started retaliating and... finally (inaudible) furniture into the wall or something.... And then somebody’s been yelling out the window like shut the F up... and then the other person just starts banging on the, on the floor even more.” The caller wanted to remain anonymous because the person in the upstairs apartment “had a history of having noise complaints against the other neighbors and... she’ll actually call the Officer... back and ask to see who called in the complaint so she can retaliate against them, ... but I don’t know what’s going on between her and the neighbor below her.”
The jurors were provided with a transcript of the call to use while the recording of the call was played for the jury.
Officers Jesse Curiel and Michael Franco, each in his own patrol car, were the first to respond. They were on the scene at 9:12 p.m. Officer Michael Mendoza joined them shortly thereafter, before they made contact with defendant. All were in full uniform. The security guard let them into the building. All of the units in the building are tiny, single room occupancy apartments. The living area of defendant’s studio apartment (excluding the entry hallway) measured approximately seven feet by eight feet.
According to Curiel, the call was about “an ongoing feud regarding loud music” between the occupants of units 261 and 361. Normally, when responding to a noise complaint, he tries to “serve as [a] mediator[]... to find a neutral balance between the person complaining about it and the person who’s actually causing the noise. We try to find the medium in between, work it out for both parties.” He does not automatically issue a citation or arrest the person; typically, before he would issue a citation for a “noise issue, it would have to be multiple calls such as... going to the same address on the same night for repeated calls for complaint and... that resident is not complying with our... initial order to quiet it down.” Before this incident, he had never had a noise complaint result in an arrest.
As he was walking up the stairs to the second floor, he could hear the “loud, booming noise” of the music. As he arrived at apartment 261, the music was “amplified more.” He knocked on the door. Defendant, wearing only drawstring pajama bottoms, opened the door. Before Curiel could say anything, defendant immediately engaged Curiel in conversation, but “due to the loudness of the music, I couldn’t hear what he was saying.” Curiel “asked for us to go inside. So we could turn down his music so we would have a conversation. By how he was engaging in conversation, I felt he wanted to talk to me so I deemed it appropriate to, well, let’s go inside and turn it down and let’s have a conversation.” Asked what his exact words were, Officer Curiel looked at his report to refresh his recollection. He testified: “I said I can’t hear what you’re saying. Let’s go back inside. Let’s turn the music down so we can have a conversation.”
Defendant then “just turned around and walked inside his apartment.” He left the door open. He and the other two officers “proceeded to follow inside.” Defendant did not gesture for them to come in. “He opened the door, and again we had the conversation and when I finished my statement, he just turned around and, again, door open and we walked in, and I interpreted that as implied consent and continued, and we continued to follow inside.” All three officers entered, making the room crowded. Defendant turned the music down, to a point where Curiel could not hear it anymore and they could talk. Defendant did not “turn around and say ‘what are you doing, ’ ” or “ ‘I don’t want you to come in here, ’ ” or ask the police to leave.
After turning the music down, defendant said he knew his rights and he could have his music playing as loud as he wanted until 9:00 o’clock. Curiel told him that he did have the right to play his music, but not when it was so loud that it disturbed his neighbors. From defendant’s facial expressions, Curiel could tell that this response angered defendant, and he continued to say he knew his rights.
Curiel could see defendant was getting upset; to calm the situation, he said, “let’s just have seat” or “please have a seat.” Asked why he did not just leave once defendant had turned down the music, Curiel responded: “Just based on his... reaction you can tell that he was not satisfied within my response... and based on him continuing to respond that he knew his rights and he can play his music and he knew his rights, ... that’s when I said okay. Let’s have a seat and start all over again so we can understand each other.” Curiel felt that if he did not explain what the “Muni Code” says, and “make him understand the other side of it, ” he would eventually come back again for the same noise complaint.
The officers did not sit. Defendant sat down on a futon and then immediately stood up again. Officer Franco told him to please have a seat and then defendant sat down again. While Franco was talking to defendant, Curiel saw some bricks scattered on the floor, particularly one brick located between himself and defendant. Construing it as a possible weapon, he moved it with his foot. Defendant asked Curiel why he had moved the brick and Curiel responded that it was for his safety. At the same time Curiel moved the brick, he saw what appeared to be identification and he asked defendant his name. Defendant said “Osama Bin Laden, ” in a “louder, irate tone.” Before Curiel could respond, defendant “lunged at” him and Franco from a seated position in a tackling manner with his arms outstretched. The officers were four or five feet away from defendant. Mendoza was in the apartment as well, but he was in the hallway area. To Curiel, defendant appeared to be lunging toward the area of the apartment behind him where defendant had his stereo and a set of drawers. There was also a brick in that area.
Defendant made contact with Curiel’s right knee with his shoulder/arm area. Curiel believed defendant must have also hit Officer Franco because they both simultaneously fell on top of defendant. Curiel and Franco then both pushed defendant towards the ground, each one grabbing and struggling with one of defendant’s arms. They were trying to “prone him” in order to place him in handcuffs. Defendant tried to pull his arms towards the center of his chest as the officers tried to pull his arms across his back. Curiel and Mendoza were yelling at defendant to stop resisting. Curiel heard Mendoza call for an additional unit to bring a “wrap, ” which is “a restraining device used to restrain the entire body of a subject.” The backup call was made at 9:17:27 p.m., that is, five minutes after Curiel and Franco arrived at the complex.
Defendant continued struggling. Mendoza then deployed his collapsible baton to deliver between five to seven baton strikes to defendant’s rear upper torso area. At the same time, Curiel had defendant’s right wrist in a control hold with a “pain compliance technique” and Franco was still struggling with defendant’s left arm.
Defendant continued to flail his arms and kick his legs. Curiel “proceeded to deliver” approximately three to four closed-fist strikes to defendant’s upper back area. Defendant continued to resist by struggling with his arms and kicking with his legs. Curiel was constantly yelling at defendant to stop resisting. Defendant turned the right side of his face towards Curiel who then “proceeded to deliver two closed-fist strikes to his face.”
Defendant continued to flail his arms and kick. Franco still had not gained control of defendant’s left arm. At this point, Curiel sprayed defendant’s face with pepper spray. Defendant stopped struggling momentarily and Franco was able to get the handcuff on defendant’s left arm. Then, “Mr. Mohammady somehow was able to turn around and come back face up.” At this point, Curiel had reached “a point of desperation” because nothing was working and defendant was still actively fighting them. Mendoza requested emergency response. Curiel knelt on defendant’s arm and upper torso. At this point, Curiel noticed that the security guard was on top of defendant’s legs. Curiel applied more pepper spray to defendant’s face. Defendant continued to struggle, but then additional units began to arrive and they were able to handcuff defendant. At that point, Curiel went into the bathroom to flush pepper spray out of his eyes.
In May of 2007, although Officer Michael Franco had been a certified police officer for only five or six months, he had already responded to a very high number of noise complaints; they happened “on almost a daily basis.” Typically, if he made contact with a person who was playing a stereo too loudly, he would ask the person to turn it down. Depending on how the person reacted to the request, he might tell the person that a citation could be issued if the police had to come out again. If the person complied with the request to turn down the music, Franco would generally say “thank you for your co[o]p[e]ration and be on [my] way.” Typically, if the police had to respond a second time, he would sometimes give a warning, but he would “try to do everything we can to avoid the citation.” If it appeared that the person was not going to comply, “or if it is a house that we’ve... responded to numerous times before..., a citation may be issued at that point.” Officer Franco clarified that a citation is “a piece of paper advising them they’ve been cited for a municipal code, city ordinance [violation], ” like a traffic ticket. “An arrest would include booking procedures and escorting them to jail.”
The officers went to apartment 261 first because dispatch advised that there was more noise coming from that apartment than the other. Franco could hear loud music coming from apartment 261 as he walked through the hallway toward it. Officer Curiel knocked on the door and defendant opened it. Curiel explained who they were and that they were there because of a noise complaint, “and he asked if we could go into the apartment to talk and turn down the music as well.” He said something like, “Let’s go inside and turn down the music so we can talk.” The officers were having trouble communicating with defendant because of the music’s volume. Defendant did not say “come in, ” or anything about allowing them to enter the apartment. He did not gesture for them to enter. Instead, “[h]e turned around, left the door wide open. It seemed like implied consent, we followed him in and at no time did he object to us going in or never did he ask us to leave.” At the doorway, Officer Curiel was professional but friendly, and Mr. Mohammady was neither combative nor agitated.
Defense counsel’s cross-examination of Officer Franco regarding his understanding of implied versus express consent drew an objection from the prosecutor which the court overruled, but prompted the court to instruct the jury: “I will tell the jury that these are legal issues which have been very well defined by many, many appellate court precedents which have differentiated between the concepts of implied and express consent, and generally either is permissible. But we’ll get into any specific legal instructions that might be necessary for your guidance later.”
Defendant walked past a table on which there was a collection of knives, a sink where there was a collection of dishware, and an area where there was recycling. He went to a built-in cupboard where there was a stereo. He turned down the volume on the stereo. After the officers entered the apartment, and defendant turned down the music to a tolerable level, Officer Curiel again explained that they were there in response to a noise complaint. Defendant became argumentative and raised his tone of voice, saying that he could play the music as loudly as he wanted to play it, because it was only 9:00 o’clock. Officer Curiel very calmly told defendant that it was okay to play his music as long as it did not disturb his neighbors in the complex, “at which point Mr. Mohammady continued to argue with him and tell Officer Curiel that he could play his music as loud as he wants, he knew his rights.” Officer Curiel asked defendant to sit down. At this point, Officer Franco noticed that the apartment contained numerous objects, such as beer bottles on the counter top, and a few bricks on the floor, that could present safety issues for the officers. He and Curiel each moved a brick with their feet out of defendant’s reach. In a defensive, argumentative tone, defendant questioned why the officers moved the bricks. Officer Curiel responded that it was for safety reasons. Defendant stood up, and Officer Franco asked him again to sit down, and defendant did. After defendant was seated, Officer Curiel asked defendant his name. Defendant responded “Osama Bin Laden” and “lunged from a seated position and appeared to be attacking” him and Curiel. Franco and Curiel were standing two to three feet apart from each other, and no more than three to three and one half feet from defendant. He put “his arms out and lunged directly at” them from a seated position “[i]n a tackling manner.” Defendant’s left hand and arm made contact with Franco’s lower torso and legs. He did not see if defendant made contact with Curiel.
Franco grabbed for defendant’s left arm while Curiel grabbed for his right. Franco could not get control of defendant’s arm. He was concerned that defendant might grab an item from his duty belt, where he carried a flashlight, two sets of handcuffs, an expandable baton, pepper spray, a firearm, additional ammunition and a portable radio. He and Curiel repeatedly told defendant to stop resisting to no avail. The officers were able to push defendant into a prone position, but defendant continued to flail his body, pull his arm and kick his legs, defeating their efforts to handcuff him.
This struggle continued for one to two minutes before Officer Curiel informed Franco that he was deploying the pepper spray and Franco felt the effects of the pepper spray. The pepper spray did not calm defendant’s behavior; it seemed to agitate him more. “The struggle continued.” Franco’s attempts to put defendant’s arm in a control hold also failed. At that point Officer Mendoza joined the fray. Defendant pulled his arm under his body. Franco placed his knee on defendant’s shoulder and struck defendant’s left arm twice with his expandable baton, causing defendant to release his arm. Defendant twisted around to a face-up position and Franco was able to place a handcuff on his left wrist. In the meantime, Officer Mendoza had called for backup. Curiel and Franco continued to struggle to turn defendant back over onto his stomach until additional reinforcements arrived.
Defendant continued to scream and flail even after two additional officers arrived. He was finally subdued when he was placed in a wrap device used to restrain combative people. It is like a straitjacket that controls the arms and legs at the same time. Franco did not actually see the wrap device being applied to defendant because he and Mendoza were escorted outside to be treated for their pepper spray exposure.
Officer Michael Mendoza agreed that usually in response to a noise complaint, the police inform the offending party that “we would like them to comply with Penal Code [section] 415, which is, you know, disturbing the peace.” Normally, the person is not cited or arrested; instead, the police “kindly request that they lower the music, ” and if the person complies “[u]sually we say thank you for your co[o]p[e]ration and walk away.” Prior to this incident he had never made an arrest because of a noise complaint. When Officer Mendoza arrived, he parked his patrol car in the open parking lot in front of the apartment complex and could hear the music as soon as he came out of the car. The security guard let him into the lobby area of the apartment complex; Officers Curiel and Franco were already upstairs on the mezzanine level. After he caught up with them, they “knocked on the door.” Defendant “opened the door... in a free and willing manner, and... Officer Curiel informed Mr. Mohammady of what was going on and at that point we just kindly requested him to turn the music down.” He could not remember whether Officer Curiel or defendant spoke first, but he did not have any trouble hearing what was being said because he “was very close to Officer Curiel and it seemed that an elevated voice was being used by Mr. Mohammady.” As they all stood at the doorway, defendant seemed to be agitated, and he repeatedly told the officers it was “9:00 o’clock in the afternoon” and he knew his rights. The officers entered the apartment “when Mr. Mohammady turned his back on us and it appeared he was walking down the hallway and we followed him in.” Officer Mendoza recalled that “the only thing that we said was we need to have the music turned down.” He did not have a memory of exactly what was said, and he did not write down in his report exactly what was said. In his police report, he paraphrased what was said by Officer Curiel that prompted defendant to turn around and walk into his apartment. According to Mendoza’s report, Officer Curiel requested, in a pleasant, polite and respectful manner, that defendant turn down the music. Defendant did not gesture them in, and he did not say come in. At no point did defendant say that he did not want the officers in his apartment.
Defendant continued to say that he knew his rights and he could play his music as loud as he wanted. Mendoza saw two bricks on the floor and knives in the kitchen area. He heard Curiel politely ask defendant to sit down, although he did not recall Curiel’s exact words. When Curiel moved the bricks out of the area with his foot, defendant, who had been sitting down, stood up. He appeared agitated and expressed his agitation by answering “Osama Bin Laden” in a rude and angry manner when Curiel asked him his name. Officers Curiel and Franco told defendant to “ ‘Sit back down, ’ and kindly guided him to sit back down.” Defendant sat, but then stood back up, “jumping and diving between” Officers Curiel and Franco “in a threatening and violent manner.” At that point, however, the only physical contact between defendant and the officers occurred when defendant’s hands “broke the plane, ... the position where [Curiel and Franco] were standing.” Officers Curiel and Franco used their hands to push defendant towards the ground. At that point, Mendoza joined the fray by trying to put his weight on defendant’s back area and using his body weight “to control or suppress the violent movements from Mr. Mohammady.” A struggle ensued while Officers Curiel and Franco each tried to “grab control of a separate hand of Mr. Mohammady’s.” Mendoza and Franco repeatedly told defendant to stop resisting. Mendoza assisted in the effort to handcuff defendant by attempting to apply a left wrist twist lock. All the while the officers were trying to position defendant’s arms behind his back, defendant was pulling his arms forward, toward the front of his body. When they could not get any type of control hold on defendant, Mendoza used his collapsible baton to hit defendant in the open back area. When defendant would not stop struggling, pepper spray was used on him. Defendant was finally subdued when additional officers arrived on the scene to assist. At that point, Mendoza went outside to recover from the effects of the pepper spray.
The Defense Case
Defendant testified in his own behalf. At the time of the incident he was 23 years old. He is five feet, six inches tall and weighed less than 180 pounds at that time. He is not athletic and does not lift weights. He was born in Portland, Oregon and went to high school in Union City, California. His mother is of American Indian ancestry and his father is from Afghanistan. When he was 18 years old, he was twice convicted of petty theft and once convicted of lying to a police officer.
He had been living in apartment 261 at 101 West Weddell for approximately six months in May 2009. It was his first apartment. It was so small that he slept on a couch that flipped out into a bed. Because the bed slanted downwards, he put four bricks under the folding mechanism of the bed to make it level. When the bed was in the couch position, the bricks were placed to the sides of the walls, not in the middle of the room.
Defendant had been having difficulties with his upstairs neighbor on and off. The neighbor would pound on the floor if he made any kind of noise, including closing the microwave door. He had not had any problems with his neighbors to the left, the right or downstairs from him. On May 6, the upstairs neighbor had been continuously pounding the floor through the night; defendant had been playing music, “pretty loud but not excessively loud.”
He was wearing pajama bottoms over boxer shorts when he heard one or two knocks on the door. He opened the door and saw three police officers in full uniform. The music was loud when he opened the door, but he could hear the knock on the door. One of the officers said: “[W]e had a complaint from your neighbors your music is too loud. Can you turn it down, please.” He never heard the officer say let’s go inside, or any words to that effect. Defendant said “Okay, ” and turned around to walk from the front door to a cabinet holding his computer, from which the music was coming. After taking a few steps, he noticed the police officers behind him; they were following him inside in a single file. The room was “kind of crowded” with all of them in it. He did not, however, tell the officers to get out of his house because “I didn’t feel I had the right to.”
When defendant got to the area where the volume control was, one of the officers walked around him so that he was flanked on either side by an officer. As defendant reached for the volume control, he saw the officer on his right “kind of jerk up.” Defendant “heard coughing on the left side of me and that’s when I fell forward” from “being struck from behind, or the side” without warning. Defendant was not sprayed at that time. He was pounded and hit from behind. He had not done anything to warrant being hit. After a point, the officers stopped hitting him and tried to handcuff him, but because they were “blinded by the pepper spray, ” they kept trying to put the handcuffs on his elbow or upper arm, “and it wasn’t going on.” Finally they sprayed him in the face from a distance of two or three inches. Defendant did not struggle with them, but every time he was hit his body would reactively convulse and twitch. He just felt pain and adrenaline “like blood rushing to your head.” If they had said “We’ll stop hitting you, ” he would have gone limp. He did not punch, slap, kick, spit or bite the officers. He never reached for a weapon. He did not flip over onto his back. When he first fell, he put his hands down to stabilize himself. When he was pepper-sprayed, he put both hands to his face to cover his eyes. He had not been drinking nor was he on drugs. The beer bottles in his apartment were being saved for recycling.
It seemed to defendant that a few seconds after he was pepper-sprayed, “they pulled the hood over my head.” He learned from instructional material left by the police in his sink that the hood is called a “spit net.” The hood made him think of pictures he had seen on television of “Abugrade [sic] and detainees.” As he was being carried out of the room, one of the officers asked him his name. Defendant answered “It ain’t Bin Laden” or “I ain’t Bin Laden” because “I felt they were treating me like I was a terrorist.” He denied that he said “My name is Osama Bin Laden and suddenly attack[ed]” the officers.
At the hospital, defendant asked why he had been hit, and said “I know my music was loud but it’s 9:00 o’clock and [¶]... [¶] it wasn’t that loud.” At the hospital he also told an officer that “I had rights because I had been beaten and I said that’s against my rights, you know.” However, he did not have a conversation with the officers in his apartment in which he said “I know my rights” and was not argumentative and belligerent with the officers before he was hit.
DISCUSSION
I. Asserted Instructional Errors
Defendant argues that the trial court’s instruction on whether the officers were lawfully engaged in the performance of their duties was fatally defective in three respects: (1) the instruction erroneously informed the jury that the prosecutor needed to prove that defendant consented to the officers’ entry by a preponderance of the evidence only; (2) the instruction created an erroneous mandatory presumption that implied consent was established as a matter of law if the jury believed Officers Curiel’s and Franco’s version of events; and (3) the instruction erroneously instructed the jury to apply an objective reasonable person standard to the question whether defendant gave consent. As we will explain, we agree with defendant that the instruction given was defective in the first two respects. We also conclude that the error in assigning a preponderance of the evidence standard to a necessary component of the “lawful performance” element in this case was not harmless beyond a reasonable doubt and we will therefore reverse the judgment.
The court gave a variant of CALCRIM 2670, which incorporated parts of a pinpoint instruction requested by the prosecutor. The court instructed the jury in relevant part, as follows. “[T]he defendant is charged in Counts 1 and 2 of the information with resisting an executive officer in the performance of that officer’s duty. To prove that the defendant is guilty of this crime, the People must prove the following elements: Number one, that the defendant unlawfully used force or violence to resist an executive officer; number two, that when the defendant acted, the officer was performing his lawful duty; and number three, that when the defendant acted he knew the executive officer was performing his duty. [¶]... [¶] A peace officer [is] not lawfully performing his or her duties if he is unlawfully arresting or detaining someone or is using unreasonable or excessive force in his duties. A subsequent instruction, which is designated instruction 2670, explains when an arrest or detention is unlawful, and when force is unreasonable or excessive. [¶]... [¶] Now, in order to prove the crimes charged in counts 1 and 2, that is, violations of... section 69, or the lesser related offense of violating 243(B), which is battery on a peace officer, the prosecution has the burden of proving beyond a reasonable doubt that Michael Franco and Jesse Curiel were lawfully performing their duties as peace officers at the time that the offenses occurred. [¶] If the People have not met this burden, then you must find the defendant not guilty of both... section 69 and... section 243(B), a lesser related offense. [¶] Now, a peace officer is not lawfully performing his duties if he is unlawfully arresting or detaining someone or is using unreasonable or excessive force when making or attempting to make an otherwise lawful arrest or detention. [¶] A peace officer may legally detain someone if the person consents to the detention or if, one, specific facts known or appearing to the officer lead him to suspect that the person to be detained has been, is or is about to be involved in activity relating to crime. And two, a reasonable officer who knew the same facts would have the same suspicion. Any other detention is unlawful. [¶]... Now, a peace officer may legally arrest someone either on the basis of an arrest warrant or if he 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 being arrested has... committed a crime.... [¶] Now, a related topic. In order for an officer to enter a home to arrest someone, the officer must have, number one, a warrant, or number two, consent to enter, or number three, the officer must have probable cause to believe that the person to be arrested committed a crime, is in the home, and that exigent circumstances require the officer to enter the home without a warrant or consent. [¶]... [¶] With respect to the issue of consensual entry to homes, police officers do not need a search warrant or an arrest warrant to enter into someone’s home if they’re given consent to enter the home by the tenant. [¶] Intent [sic] can be given expressly by words or impliedly non-verbally by actions. Consent must be voluntary and not the product of duress or coercion, express or implied. This determination is to be made by considering all of the surrounding circumstances in this case. Valid consent must be proven by a preponderance of the evidence. Proof by a preponderance of the evidence is different from than [sic] proof beyond a reasonable doubt. A fact is proved by the preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [¶] The defendant’s knowledge or lack of knowledge of his right to refuse consent is a factor that may be considered by you. However, the prosecution is not required to demonstrate that the defendant knew of his right to refuse consent to establish that voluntary consent was given. [¶] Consent is not voluntary if an officer indicates that is [sic] compliance with his request to enter is required. However, a suspect may... give valid consent to enter even when they are arrested or handcuffed. A suspect also may give valid consent when surrounded by police officers when his consent is requested.... Whether consent was given is judged by an objective reasonable person standard. The state of mind or is [sic] subjective intent of a person giving the consent is irrelevant. [¶] Absent duress or coercion by police, consent is shown when a resident opens the door to his home, proceeds inside leaving the door opened when asked by a police officer if he can come in. An officer need not suspect a crime in order to ask consent to enter someone’s home.” (Italics added.)
We have italicized the portions of the instruction challenged by defendant on appeal.
A. Relevant General Principles
First, “[w]e conduct independent review of issues pertaining to instructions.” (People v. Cooksey (2002) 95 Cal.App.4th 1407, 1411; People v. Guiuan (1998) 18 Cal.4th 558, 569.) Next, we determine the correctness of the challenged instruction “in the context of the instructions as a whole and the trial record, ” and not “ ‘in artificial isolation.’ ” (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v. Musselwhite (1998) 17 Cal.4th 1216, 1248.) Finally, even in the absence of a request, a trial court must instruct on general principles of law that are necessary to the jury’s understanding of the case. That obligation includes instruction on “issues bearing directly upon the defendant’s guilt or innocence of the charged offense. Sua sponte instruction is required, for instance, to define the basic elements of the charged offense [citation];... [The elements of the offense] are so central to the determination of guilt or innocence that to ensure a fair trial they must be explained to the jury regardless of defense counsel’s failure to submit instructions.” (People v. Sering (1991) 232 Cal.App.3d 677, 687-688, disapproved on other grounds in People v. Posey (2004) 32 Cal.4th 193, 205, fn. 5.)
B. Duty to Instruct on Lawful Performance Element
Resisting an officer with force or violence (§ 69) and battery against a peace officer (§ 243) require that the officer be engaged in the lawful performance of his or her duties at the time of the resistance or battery. In other words, the officer must have been “acting lawfully at the time the offense against the officer was committed.” (In re Manuel G. (1997) 16 Cal.4th 805, 815.) In this case, in order to decide whether the officers were acting lawfully at the time of the offenses against them, the jury was required to determine whether the officers were lawfully inside defendant’s apartment when, according to the officers, defendant lunged at them. The officers’ entry into the apartment would have been illegal, and thus the officers not lawfully performing their duties, unless the facts supported an exception to the Fourth Amendment warrant requirement, such as consent. (People v. Wilkins (1993) 14 Cal.App.4th 761, 769 (Wilkins) [the requirements for lawfully entering into a residence to make an arrest “are additional and discrete” from those for making an arrest alone].)
On these facts, at most, the police had grounds to detain defendant at the door while they investigated the noise complaint. Consent was the only justification for the officers’ entry into defendant’s apartment to continue their investigation inside. Put differently, if the prosecution could not prove that the officers had defendant’s consent (express or implied) to enter his apartment, it could not prove the “lawful performance” element of the section 69 (or § 243) offenses.
The facts of Wilkins, supra, 14 Cal.App.4th 761, are instructive. In that case, two police officers arrived at a residence to investigate a report of a domestic dispute. The victim, who was very upset and crying uncontrollably, met the police outside of the home. She told the police officers that her husband (the defendant), had hit her in the face. She asked the officers to go inside the residence to arrest him. Defendant opened the door part way to the uniformed officers’ knocking. One of the officers told him “they needed to come in and talk with him.” (Id. at p. 768.) Defendant refused to allow both officers to enter. When the defendant tried to close the door on them, one officer inserted his foot and hand, forced open the door, and reached for defendant’s wrist. “Defendant backed away and began flailing his arms and yelling at the officers to get out.” (Ibid.) As the defendant retreated inside, the officers followed him in, grabbed him in a bear hug and tried to calm him down, but defendant continued to yell and then “ ‘lunged forward, ’ grabbing [the officer’s] baton.” (Ibid.) A melee ensued, culminating in defendant being handcuffed, dragged from the residence, placed in leg restraints, maced, and eventually forcibly strapped onto an ambulance board and taken to the hospital.
A jury convicted the defendant of resisting an executive officer (§ 69) and other charges. (Wilkins, supra, 14 Cal.App.4th at p. 767 .) The Court of Appeal held that the trial court erred in failing to instruct the jury sua sponte on exigent circumstances, and consent, and knock notice requirements, in connection with section 69’s lawful performance of duty element. (Id. at pp. 767, 776-777, 779, & fns. 8, 10.) The court reasoned that “[i]n order for the officers to have effected a lawful non-consensual entry into the house to make a warrantless arrest, they must not only have had reasonable cause to believe defendant had committed a felony but there must also have been exigent circumstances justifying the officers immediate entry without obtaining a warrant. [Citation.] The instructional lacuna is not one which can be cured simply by clarification and amplification because the instructions given completely omit to address a material constituent of an element necessary for conviction. [Citation.] Accordingly, the court had a duty sua sponte to instruct on exigent circumstances.” (Id. at p. 777, italics added.) In a footnote, the court indicated that jury should also have been instructed “on consent as it bears on the lawfulness of the entry and arrest” because under the People’s theory of the case, the entry to arrest was justified by both exigent circumstances and consent, and there was substantial evidence of consent. (Id. at p. 777, fn. 8.)
Citing the court’s obligation to instruct on general principles of law governing the case, the Wilkins court observed: “At a minimum, this [obligation] requires instruction on the elements of the offense charged. [Citation.]... [L]awfulness of the arrest is an element of a resisting arrest offense which normally must be submitted to the jury.... [¶]... ‘It has long been recognized that a trial judge “may not direct a verdict of guilty no matter how conclusive the evidence.”... [¶] The prohibition against directed verdicts “includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true.”... [¶]... [¶] The rule prohibiting verdicts directed against an accused emanates from the guarantee of due process and the right to a jury trial. Due process “protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged....” ’ ” (Wilkins, supra, 14 Cal.App.4th at pp. 777-778; People v. Yarbrough (2008) 169 Cal.App.4th 303, 315 (Yarbrough).) Because the lawfulness of the arrest in the case before it turned on reasonable cause and exigent circumstances, and because lawfulness of the arrest is an element of a Penal Code section 69 violation, the Wilkins court concluded that both reasonable cause and exigent circumstances should have been submitted to the jury. (Wilkins, at p. 779.)
In this case, the trial court did not fail to instruct the jury altogether on the issue of consent as it related to the lawful performance element of the offense; however, we agree with defendant that in two respects the court’s instructions lightened the prosecution’s burden of proof and at least partially directed the jury to find against defendant on the consent issue.
C. Proof of Consent by Preponderance of the Evidence
1. The Instruction Violates Due Process
The instruction told the jury to find consent by a preponderance of the evidence. This instruction was incompatible with due process. (In re Winship (1970) 397 U.S. 358, 364 (Winship); Sandstrom v. Montana (1979) 442 U.S. 510, 524 (Sandstrom).) Wilkins holds that “the facts bearing on the issue of legal cause” must be “submitted to the jury considering an engaged-in-duty element.” (Wilkins, supra, 14 Cal.App.4th at p. 778.) Furthermore, Wilkins explains that such facts – whether they turn on the existence or non-existence of exigent circumstances, or of consent – are material constituents of the “lawful performance” or “engaged-in-duty” element of the offense. As such, due process requires that they be proven beyond a reasonable doubt. (Winship, at p. 364; Sandstrom, at p. 524.) The court’s instruction in this case was therefore error of constitutional magnitude.
The Attorney General disputes this conclusion. He argues that People v. James (1977) 19 Cal.3d 99 (James) establishes that the prosecution may discharge its burden of proving “that a defendant’s manifestation of consent... was the product of his free will and not a mere submission to an express or implied assertion of authority” by a preponderance of the evidence, and that James’ holding is binding on this court under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. We disagree.
In James, the defendant was charged with burglary and robbery. He moved to suppress evidence of a stolen television set found in his house on the grounds that it was “obtained by an illegal search and seizure.” (James, supra, 19 Cal.3d at p. 106.) In ruling that the trial court had properly denied defendant’s suppression motion, our Supreme Court held: “Our guiding principles are well settled. Inasmuch as the search herein was conducted without a warrant, the burden was on the People to establish justification under a recognized exception to the warrant requirement. [Citation.] The People relied on consent, which constitutes such an exception. [Citation.] In that event, however, the People had the additional burden of proving that the defendant’s manifestation of consent was the product of his free will and not a mere submission to an express or implied assertion of authority. [Citation.] [Fn. 4] The People may discharge the foregoing burdens by a preponderance of the evidence. (United States v. Matlock (1974) 415 U.S. 164, 177-178, fn. 14....) [End Fn. 4] The voluntariness of the consent is in every case ‘a question of fact to be determined in the light of all the circumstances.’ ” (James, supra, at p. 106) Finding substantial evidence of voluntary consent, the James court upheld the trial court’s denial of the defendant’s motion to suppress the stolen television set. (Id. at p. 118.)
James did not involve a prosecution for an offense that includes as part of its corpus delicti the lawful performance of a peace officer’s duty; it did not involve jury instructions; in fact, it did not involve a jury trial at all, but a motion to suppress. James resolved a question concerning the People’s burden of proof on a consent issue presented at a motion to suppress and, to that extent, does not address or answer the question concerning the prosecution’s burden of proof on consent when consent is a material constituent of an element of the offense necessary for conviction. For the same reason, United States v. Matlock, and In re D.M.G. (1981) 120 Cal.App.3d 218, 225, cited by the Attorney General, are also inapposite. In our view, the case law providing the most guidance on the question presented here is Wilkins and the cases cited therein.
The Attorney General also suggests that defendant may have waived the argument concerning the proper standard of proof of consent here, because trial counsel stated for the record that he agreed that the jury’s finding on consent to enter need only be by preponderance of the evidence. However, trial counsel objected to many facets of the prosecutor’s proposed pinpoint instruction, and the record as a whole does not demonstrate that counsel invited the error. “Invited error... will only be found if counsel expresses a deliberate tactical purpose in resisting or acceding to the complained-of instruction.” (People v. Valdez (2004) 32 Cal.4th 73, 115.) The record discloses no such purpose in this case.
2. The Instructional Error Requires Reversal
Defendant argues that the error is reversible per se, since the instruction improperly lowered the standard of proof. (Sullivan v. Louisiana (1993) 508 U.S. 275, 280-282.) Alternatively, he argues that even if the proper standard of reversal for this type of error is Chapman v. California (1967) 386 U.S. 18, 24, reversal is required. “Under federal law, the ‘Fifth Amendment right to due process and Sixth Amendment right to jury trial... require the prosecution to prove to a jury beyond a reasonable doubt every element of a crime.’ [Citations.] Accordingly, a trial court’s failure to instruct on an element of a crime is federal constitutional error that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jury’s verdict.” (People v. Cole (2004) 33 Cal.4th 1158, 1208; Neder v. United States (1999) 527 U.S. 1 (Neder).) The Attorney General does not address the proper standard of reversal.
We need not decide whether the instruction constitutes structural error affecting the burden of proof that is reversible per se, or trial error that improperly described or omitted an element of the offense, and is subject to harmless error review, because the error here was clearly not harmless beyond a reasonable doubt under Neder. In that case, the United States Supreme Court decided that harmless error analysis should be applied to instructional error that omits an element of the offense, thereby withdrawing that element from the jury’s purview. The Court provided guidance to appellate courts engaged in assessing the prejudicial effect of such error, which is instructive in this related context. The Court observed: “[S]afeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error – for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding – it should not find the error harmless. [¶] A reviewing court making this harmless-error inquiry does not, as Justice Traynor put it, ‘become in effect a second jury to determine whether the defendant is guilty.’ [Citation.] Rather a court, in typical appellate-court fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is ‘no, ’ holding the error harmless does not ‘reflec[t] a denigration of the constitutional rights involved.’ [Citation.] On the contrary, it ‘serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.’ ” (Neder, supra, 527 U.S. at pp. 19-20.)
The question whether defendant impliedly gave the officers consent for them to enter his apartment was a highly disputed issue in this case, and the evidence was sharply conflicting. Although Officers Curiel and Franco maintained that Curiel had requested permission to enter, defendant was not alone in contradicting their testimony. Officer Mendoza likewise did not hear Officer Curiel make such a request, even though he was standing next to Officer Curiel and was in a position to hear what he said to defendant. The prosecutor made every effort to discredit Mendoza on this point, attempting to impeach him with his police report and calling his memory into question.
We also note that the prosecutor relied on the erroneous instruction in closing argument. He told the jury: “[W]hether or not [consent] is given, it is decided by you by a preponderance of the evidence. So it is not beyond a reasonable doubt. It is basically 50 percent plus 1 or really technically plus 0001. We can keep going with zeros. It is the slightest tipping of the scales.” Moreover, the court may have conveyed to the jury that its instructions on implied and express consent carried a special imprimatur of correctness when it told the jury that “many, many appellate court precedents” had “very well defined” those the legal issues. Under these circumstances we are unable to find that the instruction had no effect on the jury’s determination of the consent issue. Defendant contested the compromised element and raised evidence sufficient to support a contrary finding. After a review of the entire record, we cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the error. Reversal is required.
Because the remaining trial issues raised on appeal are likely to reoccur in the event of retrial, we will proceed to resolve them as well.
We express no opinion on the correctness of the court’s instruction on consent as a whole, but address only those aspects challenged by defendant on appeal.
D. Conclusive Presumption/Partial Directed Verdict Against Defendant
Defendant argues that the court created an impermissible mandatory presumption that withdrew the issue of consent to enter from the jury when it instructed the jury that “[a]bsent duress or coercion by the police, consent is shown when a resident opens the door to his home, proceeds inside leaving the door opened when asked by a police officer if he can come in.” A mandatory presumption is one that “tells the trier of fact that it must assume the existence of the ultimate, elemental fact from proof of specific, designated basic facts....” (People v. Roder (1983) 33 Cal.3d 491, 498.) “The prohibition against directed verdicts includes perforce situations in which the judge’s instructions fall short of directing a guilty verdict but which nevertheless have the effect of so doing by eliminating other relevant considerations if the jury finds one fact to be true. [Citation.]... No fact, not even an undisputed fact, may be determined by the judge.” (Yarbrough, supra, 169 Cal.App.4th at p. 315, internal quotation marks omitted.) The instruction at issue here did not tell the jury that it must find the predicate facts, but it did effectively tell the jury that if it accepted those facts as true, it must find implied consent, and no further fact-finding on its part was required, or indeed permitted. Whether this instruction is characterized as a mandatory presumption, a partial directed verdict, or something else, we find it was error.
First, it was an improper pinpoint instruction because it was argumentative as phrased: it only emphasized the prosecution’s version of the facts. (People v. Wright (1988) 45 Cal.3d 1126, 1135.) It did not, for example include the facts that the officers asked defendant to turn down his music, that the defendant turned around and went to comply, that the defendant did not step back, or gesture for the officers to come in. Pinpoint instructions must encapsulate the proffering party’s theory in a neutral fashion. This one did not do so.
Second, the instruction withdrew at least an aspect of the element of lawful performance from the jury’s purview. As noted, the instruction did not permit the jury to consider whether other circumstances shed light on the existence or non existence of implied consent, once it found the predicate facts stated in the instruction. Yet, “[t]he voluntariness of the consent is in every case ‘a question of fact to be determined in the light of all the circumstances.’ ” (James, supra, 19 Cal.3d at p. 106, italics added.) The error here is akin to the error in People v. Lara (1994) 30 Cal.App.4th 658, 669-670, where the trial court instructed the jury that that “ ‘[a] San Jose Police Department officer is a peace officer.’ ” (Id. at p. 668.) In that case, the error was harmless because the evidence overwhelmingly established that the officers were members of the San Jose Police Department and peace officers. Here, the erroneous instruction skewed the jury’s decision-making of highly disputed facts and impacted a critical jury finding on an element of the offense. On retrial, this instruction should not be given.
A. The Lawfulness of the Officer’s Conduct Based on an Objective Standar
Defendant also argues that the trial court erred in instructing the jury that the existence or non-existence of consent is to be judged “by an objective reasonable person standard” and that the defendant’s state of mind or subjective intent is “irrelevant.” Relying primarily on Bumper v. North Carolina (1968) 391 U.S. 543 at page 548, People v. Bailey (1985) 176 Cal.App.3d 402 at page 404, and People v. Weaver (2001) 26 Cal.4th 876 at page 924, defendant argues that this is so because “ ‘consent must be unequivocal, specific, and freely and intelligently given’ ” and is “invalid if given ‘in response to any express or implied assertion of authority.’ ” (Bailey, at p. 404.) While these propositions are true, it is also well established that “[g]enerally, a court will find a warrantless entry justified if the facts available to the officer at the moment of the entry would cause a person of reasonable caution to believe that the action taken was appropriate.” (People v. Hochstraser (2009) 178 Cal.App.4th 883, 895, quoting from People v. Rogers (2009) 46 Cal.4th 1136, 1156-1157.)
Thus, the question in this case was whether, in light of all the circumstances known to the police officers, a reasonable person would believe that defendant impliedly gave the police his unequivocal, specific, free and intelligent consent to enter, and not as a response to any express or implied assertion of authority on the officers’ part.
The bench note to CALCRIM No. 2670 is in accord. Citing People v. Jenkins (2000) 22 Cal.4th 900 at pages 1020-1021 (italics added), the bench note states: “The rule ‘requires that the officer’s lawful conduct be established as an objective fact; it does not establish any requirement with respect to the defendant’s mens rea.’ [Citation.] The defendant’s belief about whether the officer was or was not acting lawfully is irrelevant.”
Jenkins involved the propriety of jury instructions on a special circumstance finding that included a “lawful performance” element. The defendant argued that the jury should have been instructed that “ ‘if the defendant believed the [police officer] manufactured evidence against him, and retaliated for that perceived conduct, the [police officer] was not killed in retaliation for the performance of his official duties.’ ” (People v. Jenkins, supra, 22 Cal.4th at p. 1020.)
In rejecting that contention, our Supreme Court explained that “[t]he rule defendant relies upon requires that the officer’s lawful conduct be established as an objective fact; it does not establish any requirement with respect to the defendant’s mens rea. Rather, the rule is based upon the statutory definition of the crime, and ‘flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in “duties, ” for purposes of an offense defined in such terms, if the officer’s conduct is unlawful....’ [Citation.] Accordingly, the defendant’s subjective understanding that the officer’s conduct was lawful is not an element of proof.” (People v. Jenkins, supra, 22 Cal.4th at pp. 1020-1021.)
Likewise, section 69, the statute at issue here, requires that the officer’s lawful conduct be established as an objective fact, whether that conduct encompasses exigent circumstances or consent or some other justification that renders the officer’s conduct reasonable under the Fourth Amendment. Therefore, we conclude that the instruction given by the court here was correct insofar as it required the jury to determine whether or not the officer’s conduct was objectively reasonable.
As relevant here, section 69 provides: “Every person who... knowingly resists, by the use of force or violence, such officer, in the performance of his duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment in the state prison, or in a county jail not exceeding one year, or by both such fine and imprisonment.”
However, the instruction overstated the case by adding that the defendant’s state of mind or subjective intent was “irrelevant.” The defendant’s knowledge that the officer is acting in the performance of his or her duties is an essential element of the offense. Therefore, any factor – including his state of mind or subjective intent – that bears on the defendant’s knowledge is not “irrelevant.” Moreover, the defendant’s state of mind is one factor for the jury to consider in deciding whether the defendant manifested a lack of consent. However, as Bailey teaches, that question, too, is to be viewed from the perspective of the reasonable person. The Bailey decision itself applied an objective standard to the question whether the defendant’s consent was “unequivocal, specific, and freely and intelligently given” or invalid because it was given “in response to any express or implied assertion of authority.” (Bailey, supra, 176 Cal.App.3d at pp. 404-405.) “The circumstances thus show an exercise of official authority such that [defendant], under the standard of a reasonable person, would have believed he was not free to leave. He was seized, under the detention category of contact, without the necessary basis therefor, and his consent was therefore involuntary.” (Bailey, supra, 176 Cal.App.3d at p. 406, italics added.) On retrial, the court should not add that the defendant’s state of mind is “irrelevant.”
II. Defendant’s Pitchess Motion
Defendant asks us to review the sealed transcript and documents that were before the trial court in connection with his motion to compel disclosure of peace officer personnel records, and to determine whether the trial court abused its discretion in ruling on the motion. (Pitchess v. Superior Court, supra, 11 Cal.3d at pp. 535-540; People v. Mooc (2001) 26 Cal.4th 1216, 1232.) Having done so, we find no abuse of discretion. (People v. Hughes (2002) 27 Cal.4th 287, 330.)
III. Validity of Search Condition of Probation
Finally, defendant argues that the trial court erred by imposing a probation search condition. Inasmuch as we reverse the judgment for other reasons, we deem it unnecessary to address claims that are not trial-related at this time.
CONCLUSION
The trial court committed reversible error by instructing the jury that the consent to enter – in this case, a material constituent of the “lawful performance” element necessary to defendant’s convictions for violating section 69 – need only be proven by a preponderance of the evidence. For guidance in the event of retrial, we also find that the trial court erred in instructing the jury that if it found true certain predicate facts that favored the prosecution’s theory of the case, it must find that consent was established, and in instructing the jury that the defendant’s state of mind or subjective intent is not relevant to the question whether defendant gave the officers implied consent to enter his apartment; however, the court correctly instructed the jury that the question of consent to enter was to be determined under an objective reasonable person standard. We find no Pitchess error, and need not address defendant’s claim concerning his probationary term.
DISPOSITION
The judgment is reversed.
WE CONCUR: Mihara, Acting P.J., Duffy, J.